GUARANTY
Exhibit 10.15
THIS GUARANTY (as the same may be amended, restated, supplemented or otherwise modified from
time to time, this “Guaranty”) is made as of
March 15, 2010 by and among each of the
Subsidiaries of Xxxxxx International Inc. (the “Borrower”) listed on the signature pages
hereto (each an “Initial Guarantor”) and those additional Subsidiaries of the Borrower
which become parties to this Guaranty by executing a supplement hereto (a “Guaranty
Supplement”) in the form attached hereto as Annex I (such additional Subsidiaries,
together with the Initial Guarantors, the “Guarantors”), in favor of JPMorgan Chase Bank,
N.A., as Administrative Agent (the “Administrative Agent”), for the benefit of the Secured
Parties under the Credit Agreement described below. Unless otherwise defined herein, capitalized
terms used herein and not defined herein shall have the meanings ascribed to such terms in the
Credit Agreement.
WITNESSETH:
WHEREAS, the Borrower, the financial institutions from time to time party thereto
(collectively, the “Lenders”), and the Administrative Agent have entered into that certain
Credit Agreement of even date herewith (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), which Credit Agreement
provides, subject to the terms and conditions thereof, for extensions of credit and other financial
accommodations to be made by the Lenders to or for the benefit of the Borrower;
WHEREAS, it is a condition precedent to the extensions of credit by the Lenders under the
Credit Agreement that each of the Guarantors (constituting all of the Subsidiaries of the Borrower
required to execute this Guaranty pursuant to Section 5.11 of the Credit Agreement) execute
and deliver this Guaranty, whereby each of the Guarantors, without limitation and with full
recourse, shall guarantee the payment when due of all Secured Obligations, including, without
limitation, all principal, interest, letter of credit reimbursement obligations and other amounts
that shall be at any time payable by the Borrower under the Credit Agreement or the other Loan
Documents; and
WHEREAS, in consideration of the direct and indirect financial and other support and benefits
that the Borrower has provided, and such direct and indirect financial and other support and
benefits as the Borrower may in the future provide, to the Guarantors, and in consideration of the
increased ability of each Guarantor that is a Subsidiary of the Borrower to receive funds through
contributions to capital, and for each Guarantor to receive funds through intercompany advances or
otherwise, from funds provided to the Borrower pursuant to the Credit Agreement and the flexibility
provided by the Credit Agreement for each Guarantor to do so which significantly facilitates the
business operations of the Borrower and each Guarantor and in order to induce the Lenders and the
Administrative Agent to enter into the Credit Agreement, and to make the Loans and the other
financial accommodations to the Borrower and to issue the Letters of Credit described in the Credit
Agreement, each of the Guarantors is willing to guarantee the Secured Obligations under the Credit
Agreement and the other Loan Documents;
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Representations, Warranties and Covenants. Each of the Guarantors represents and
warrants to each Lender and the Administrative Agent as of the date of this Guaranty, giving effect
to
the consummation of the transactions contemplated by the Loan Documents on the Effective Date,
and thereafter on each date as required by Section 4.02 of the Credit Agreement that:
(a) It (i) is a corporation, partnership or limited liability company duly incorporated or
organized, as the case may be, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization, (ii) is duly qualified to do business as a foreign
entity and is in good standing (to the extent such concept is applicable) under the laws of each
jurisdiction where the business conducted by it makes such qualification necessary, and (iii) has
all requisite corporate, partnership or limited liability company power and authority, as the case
may be, to own, operate and encumber its property and to conduct its business in each jurisdiction
in which its business is conducted, except to the extent that the failure to be qualified or to
have such authority could not reasonably be expected to result in a Material Adverse Effect.
(b) It has the requisite corporate, limited liability company or partnership, as applicable,
power and authority and legal right to execute and deliver this Guaranty and to perform its
obligations hereunder. The execution and delivery by it of this Guaranty and the performance of
its obligations hereunder have been duly authorized by proper corporate, limited liability company
or partnership proceedings, including any required shareholder, member or partner approval, and
this Guaranty constitutes a legal, valid and binding obligation of such Guarantor, enforceable
against such Guarantor, in accordance with its terms, except as enforceability may be limited by
(i) bankruptcy, insolvency, fraudulent conveyances, reorganization or similar laws relating to or
affecting the enforcement of creditors’ rights generally, (ii) general equitable principles
(whether considered in a proceeding in equity or at law), and (iii) requirements of reasonableness,
good faith and fair dealing.
(c) Neither the execution and delivery by it of this Guaranty, nor the consummation by it of
the transactions herein contemplated, nor compliance by it with the terms and provisions hereof,
will (i) conflict with the charter or other organizational documents of such Guarantor, (ii)
conflict with, result in a breach of or constitute (with or without notice or lapse of time or
both) a default under any law, rule, regulation, order, writ, judgment, injunction, decree or award
(including, without limitation, any environmental property transfer laws or regulations) applicable
to such Guarantor or any provisions of any indenture, instrument or agreement to which the Borrower
or any of the Borrower’s Subsidiaries is party or is subject or by which it or its property is
bound or affected, or require termination of any such indenture, instrument or agreement except for
any conflict, breach or default which could not reasonably be expected to result in a Material
Adverse Effect, (iii) result in the creation or imposition of any Lien whatsoever upon any of the
property or assets of such Guarantor, other than Liens permitted or created by the Loan Documents,
or (iv) require any approval of such Guarantor’s board of directors, shareholders, members,
partners or unitholders except such as have been obtained. Except as set forth on Schedule 3.03 to
the Credit Agreement, the execution, delivery and performance by such Guarantor of each of the Loan
Documents to which such Guarantor is a party do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by any Governmental Authority,
including under any environmental property transfer act or environmental laws or regulations,
except filings, consents or notices which have been made.
(d) It has no Indebtedness other than Indebtedness permitted under Section 6.01 of the
Credit Agreement.
In addition to the foregoing, each of the Guarantors covenants that, prior to the discharge of
the Guaranty as contemplated by Section 4, so long as any Lender has any Commitment or
Letter of Credit outstanding under the Credit Agreement or any amount payable under the Credit
Agreement or any other Secured Obligations shall remain unpaid, it will, and, if necessary, will
cause the Borrower to, fully
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comply with those covenants and agreements of the Borrower applicable to such Guarantor set forth
in the Credit Agreement.
SECTION 2. The Guaranty. Each of the Guarantors hereby irrevocably and
unconditionally guarantees, jointly and severally with the other Guarantors, the full and punctual
payment and performance when due (whether at stated maturity, upon acceleration or otherwise) of
the Secured Obligations, including, without limitation, (i) the principal of and interest on each
Loan made to the Borrower pursuant to the Credit Agreement, (ii) obligations owing under or in
connection with Letters of Credit, (iii) all other amounts payable by the Borrower under the Credit
Agreement and the other Loan Documents, and including, without limitation, all Swap Obligations and
Banking Services Obligations, and (iv) the punctual and faithful performance, keeping, observance,
and fulfillment by the Borrower of all of the agreements, conditions, covenants, and obligations of
the Borrower contained in the Loan Documents (all of the foregoing being referred to collectively
as the “Guaranteed Obligations”). Notwithstanding the foregoing, the release of a
Guarantor permitted under the Loan Documents shall not require the consent of the holders of
obligations under such Swap Obligations or Banking Services Obligations. Upon the failure by the
Borrower, or any of its Affiliates, as applicable, to pay punctually any such amount or perform
such obligation, subject to any applicable grace or notice and cure period, each of the Guarantors
agrees that it shall forthwith on demand pay such amount or perform such obligation at the place
and in the manner specified in the Credit Agreement or the relevant other Loan Document, as the
case may be. Each of the Guarantors hereby agrees that this Guaranty is an absolute, irrevocable
and unconditional guaranty of payment and is not a guaranty of collection.
SECTION 3. Guaranty Unconditional. The obligations of each of the
Guarantors hereunder shall be unconditional and absolute and, without limiting the generality of
the foregoing, shall not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, indulgence, compromise, waiver or release of or
with respect to the Guaranteed Obligations or any part thereof or any agreement relating
thereto, or with respect to any obligation of any other guarantor of any of the Guaranteed
Obligations, whether (in any such case) by operation of law or otherwise, or any failure or
omission to enforce any right, power or remedy with respect to the Guaranteed Obligations or
any part thereof or any agreement relating thereto, or with respect to any obligation of any
other guarantor of any of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to the Credit Agreement, any Swap
Agreement, any Banking Services Agreement or any other Loan Document, including, without
limitation, any such amendment which may increase the amount of, or the interest rates
applicable to, any of the Guaranteed Obligations guaranteed hereby;
(iii) any release, surrender, compromise, settlement, waiver, subordination or
modification, with or without consideration, of any collateral securing the Guaranteed
Obligations or any part thereof, any other guaranties with respect to the Guaranteed
Obligations or any part thereof, or any other obligation of any person or entity with
respect to the Guaranteed Obligations or any part thereof, or any nonperfection or
invalidity of any direct or indirect security for the Guaranteed Obligations;
(iv) any change in the corporate, partnership, limited liability company or other
existence, structure or ownership of the Borrower or any other guarantor of any of the
Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Borrower or any other guarantor of the Guaranteed Obligations, or
any of their respective
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assets or any resulting release or discharge of any obligation of the Borrower or any
other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which the Guarantors may have at
any time against the Borrower, any other guarantor of any of the Guaranteed Obligations, the
Administrative Agent, any Secured Party or any other Person, whether in connection herewith
or in connection with any unrelated transactions, provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory counterclaim;
(vi) the enforceability or validity of the Guaranteed Obligations or any part thereof
or the genuineness, enforceability or validity of any agreement relating thereto or with
respect to any collateral securing the Guaranteed Obligations or any part thereof, or any
other invalidity or unenforceability relating to or against the Borrower or any other
guarantor of any of the Guaranteed Obligations, for any reason related to the Credit
Agreement, any Swap Agreement, any Banking Services Agreement or any other Loan Document, or
any provision of applicable law, decree, order or regulation purporting to prohibit the
payment by the Borrower or any other guarantor of the Guaranteed Obligations, of any of the
Guaranteed Obligations or otherwise affecting any term of any of the Guaranteed Obligations;
(vii) the failure of the Administrative Agent to take any steps to perfect and maintain
any security interest in, or to preserve any rights to, any security or collateral for the
Guaranteed Obligations, if any;
(viii) the election by, or on behalf of, any one or more of the Secured Parties, in any
proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101
et seq.) (or any successor statute, the “Bankruptcy Code”), of the application of
Section 1111(b)(2) of the Bankruptcy Code;
(ix) any borrowing or grant of a security interest by the Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code;
(x) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion
of the claims of the Secured Parties or the Administrative Agent for repayment of all or any
part of the Guaranteed Obligations;
(xi) the failure of any other guarantor to sign or become party to this Guaranty or any
amendment, change, or reaffirmation hereof; or
(xii) any other act or omission to act or delay of any kind by the Borrower, any other
guarantor of the Guaranteed Obligations, the Administrative Agent, any Secured Party or any
other Person or any other circumstance whatsoever which might, but for the provisions of
this Section 3, constitute a legal or equitable discharge of any Guarantor’s
obligations hereunder or otherwise reduce, release, prejudice or extinguish its liability
under this Guaranty.
SECTION 4. Discharge Only Upon Payment In Full; Reinstatement In Certain
Circumstances. Each of the Guarantors’ obligations hereunder shall remain in full force and
effect until all Guaranteed Obligations shall have been paid in full in cash (other than
Unliquidated Obligations) and the Commitments and all Letters of Credit issued under the Credit
Agreement shall have terminated or expired or, in the case of all Letters of Credit, are fully
collateralized on terms reasonably acceptable to the Administrative Agent, at which time, subject
to all the foregoing conditions, the guarantees made hereunder shall automatically terminate. If
at any time any payment of the principal of or interest on any
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Loan, Secured Obligation or any other amount payable by the Borrower or any other party under
the Credit Agreement, any Swap Agreement, any Banking Services Agreement or any other Loan Document
is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, each of the Guarantors’ obligations hereunder with
respect to such payment shall be reinstated as though such payment had been due but not made at
such time. The parties hereto acknowledge and agree that each of the Guaranteed Obligations shall
be due and payable in the same currency as such Guaranteed Obligation is denominated, but if
currency control or exchange regulations are imposed in the country which issues such currency with
the result that such currency (the “Original Currency”) no longer exists or the relevant
Guarantor is not able to make payment in such Original Currency, then all payments to be made by
such Guarantor hereunder in such currency shall instead be made when due in Dollars in an amount
equal to the Dollar Amount (as of the date of payment) of such payment due, it being the intention
of the parties hereto that each Guarantor takes all risks of the imposition of any such currency
control or exchange regulations.
SECTION 5. General Waivers; Additional Waivers.
(a) General Waivers. Each of the Guarantors irrevocably waives acceptance hereof,
presentment, demand or action on delinquency, protest, the benefit of any statutes of limitations
and, to the fullest extent permitted by law, any notice not provided for herein or under the other
Loan Documents, as well as any requirement that at any time any action be taken by any Person
against the Borrower, any other guarantor of the Guaranteed Obligations, or any other Person.
(b) Additional Waivers. Notwithstanding anything herein to the contrary, each of the
Guarantors hereby absolutely, unconditionally, knowingly, and expressly waives, to the fullest
extent permitted by law:
(i) any right it may have to revoke this Guaranty as to future indebtedness or notice
of acceptance hereof;
(ii) (1) notice of acceptance hereof; (2) notice of any Loans, Letters of Credit or
other financial accommodations made or extended under the Loan Documents or the creation or
existence of any Guaranteed Obligations; (3) notice of the amount of the Guaranteed
Obligations, subject, however, to each Guarantor’s right to make inquiry of the
Administrative Agent and the Secured Parties to ascertain the amount of the Guaranteed
Obligations at any reasonable time; (4) notice of any adverse change in the financial
condition of the Borrower or of any other fact that might increase such Guarantor’s risk
hereunder; (5) notice of presentment for payment, demand, protest, and notice thereof as to
any instruments among the Loan Documents; (6) notice of any Default or Event of Default; and
(7) all other notices (except if such notice is specifically required to be given to such
Guarantor hereunder or under the Loan Documents) and demands to which each Guarantor might
otherwise be entitled;
(iii) its right, if any, to require the Administrative Agent and the other Secured
Parties to institute suit against, or to exhaust any rights and remedies which the
Administrative Agent and the other Secured Parties has or may have against, the other
Guarantors or any third party, or against any Collateral provided by the other Guarantors,
or any third party; and each Guarantor further waives any defense arising by reason of any
disability or other defense (other than the defense that the Guaranteed Obligations shall
have been fully and finally performed and indefeasibly paid in full in cash) of the other
Guarantors or by reason of the cessation from any cause whatsoever of the liability of the
other Guarantors in respect thereof;
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(iv) (a) any rights to assert against the Administrative Agent and the other Secured
Parties any defense (legal or equitable), set-off, counterclaim, or claim which such
Guarantor may now or at any time hereafter have against the other Guarantors or any other
party liable to the Administrative Agent and the other Secured Parties; (b) any defense,
set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from
the present or future lack of perfection, sufficiency, validity, or enforceability of the
Guaranteed Obligations or any security therefor; (c) any defense such Guarantor has to
performance hereunder, and any right such Guarantor has to be exonerated, arising by reason
of: (1) the impairment or suspension of the Administrative Agent’s and the other Secured
Parties’ rights or remedies against the other guarantor of the Guaranteed Obligations; (2)
the alteration by the Administrative Agent and the other Secured Parties of the Guaranteed
Obligations; (3) any discharge of the other Guarantors’ obligations to the Administrative
Agent and the other Secured Parties by operation of law as a result of the Administrative
Agent’s and the other Secured Parties’ intervention or omission; or (4) the acceptance by
the Administrative Agent and the other Secured Parties of anything in partial satisfaction
of the Guaranteed Obligations; and (d) the benefit of any statute of limitations affecting
such Guarantor’s liability hereunder or the enforcement thereof, and any act which shall
defer or delay the operation of any statute of limitations applicable to the Guaranteed
Obligations shall similarly operate to defer or delay the operation of such statute of
limitations applicable to such Guarantor’s liability hereunder; and
(v) any defense arising by reason of or deriving from (a) any claim or defense based
upon an election of remedies by the Administrative Agent and the Secured Parties; or (b) any
election by the Administrative Agent and the other Secured Parties under the Bankruptcy
Code, to limit the amount of, or any collateral securing, its claim against the Guarantors.
SECTION 6. Subordination of Subrogation; Subordination of Intercompany
Indebtedness.
(a) Subordination of Subrogation. Until the Guaranteed Obligations have been fully
and finally performed and indefeasibly paid in full in cash (other than Unliquidated Obligations),
the Guarantors (i) shall not enforce any right of subrogation with respect to such Guaranteed
Obligations and (ii) agree not to enforce any remedy which the Issuing Bank, any of the Secured
Parties or the Administrative Agent now have or may hereafter have against the Borrower, any
endorser or any guarantor of all or any part of the Secured Obligations or any other Person, and
until such time the Guarantors agree not to enforce any benefit of, and any right to participate
in, any security or collateral given to the Secured Parties, the Issuing Bank and the
Administrative Agent to secure the payment or performance of all or any part of the Guaranteed
Obligations or any other liability of the Borrower to the Secured Parties, the Issuing Bank or the
Administrative Agent. Should any Guarantor have the right, notwithstanding the foregoing, to
exercise its subrogation rights, each Guarantor hereby expressly and irrevocably (A) subordinates
any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution,
indemnification or set off that such Guarantor may have to the payment in full in cash of the
Guaranteed Obligations until the Guaranteed Obligations are indefeasibly paid in full in cash
(other than Unliquidated Obligations) and (B) waives any and all defenses available to a surety,
guarantor or accommodation co-obligor until the Guaranteed Obligations are indefeasibly paid in
full in cash (other than Unliquidated Obligations). Each Guarantor acknowledges and agrees that
this subordination is intended to benefit the Administrative Agent and the Secured Parties and
shall not limit or otherwise affect such Guarantor’s liability hereunder or the enforceability of
this Guaranty, and that the Administrative Agent, the Secured Parties and their respective
successors and assigns are intended third party beneficiaries of the waivers and agreements set
forth in this Section 6(a).
(b) Subordination of Intercompany Indebtedness. Each Guarantor agrees that any and
all claims of such Guarantor against the Borrower or any other Guarantor hereunder (each an
“Obligor”)
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with respect to any “Intercompany Indebtedness” (as hereinafter defined), any endorser,
obligor or any other guarantor of all or any part of the Guaranteed Obligations, or against any of
its properties shall be subordinate and subject in right of payment to the prior payment, in full
and in cash, of all Guaranteed Obligations; provided that, as long as no Event of Default has
occurred and is continuing, such Guarantor may receive payments of principal and interest from any
Obligor with respect to Intercompany Indebtedness. Notwithstanding any right of any Guarantor to
ask, demand, xxx for, take or receive any payment from any Obligor, all rights, liens and security
interests of such Guarantor, whether now or hereafter arising and howsoever existing, in any assets
of any other Obligor shall be and are subordinated to the rights of the Secured Parties and the
Administrative Agent in those assets. No Guarantor shall have any right to possession of any such
asset or to foreclose upon any such asset, whether by judicial action or otherwise, unless and
until all of the Guaranteed Obligations shall have been fully paid and satisfied (in cash) and all
financing arrangements pursuant to any Loan Document, any Swap Agreement or any Banking Services
Agreement have been terminated. If all or any part of the assets of any Obligor, or the proceeds
thereof, are subject to any distribution, division or application to the creditors of such Obligor,
whether partial or complete, voluntary or involuntary, and whether by reason of liquidation,
bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action
or proceeding, or if the business of any such Obligor is dissolved or if substantially all of the
assets of any such Obligor are sold, then, and in any such event (such events being herein referred
to as an “Insolvency Event”), any payment or distribution of any kind or character, either
in cash, securities or other property, which shall be payable or deliverable upon or with respect
to any indebtedness of any Obligor to any Guarantor (“Intercompany Indebtedness”) shall be
paid or delivered directly to the Administrative Agent for application on any of the Guaranteed
Obligations, due or to become due, until such Guaranteed Obligations shall have first been fully
paid and satisfied (in cash). Should any payment, distribution, security or instrument or proceeds
thereof be received by the applicable Guarantor upon or with respect to the Intercompany
Indebtedness after any Insolvency Event and prior to the satisfaction of all of the Guaranteed
Obligations (other than Unliquidated Obligations) and the termination of all financing arrangements
pursuant to any Loan Document among the Borrower and the Holders of Secured Obligations, such
Guarantor shall receive and hold the same in trust, as trustee, for the benefit of the Secured
Parties and shall forthwith deliver the same to the Administrative Agent, for the benefit of the
Secured Parties, in precisely the form received (except for the endorsement or assignment of the
Guarantor where necessary), for application to any of the Guaranteed Obligations, due or not due,
and, until so delivered, the same shall be held in trust by the Guarantor as the property of the
Secured Parties. If any such Guarantor fails to make any such endorsement or assignment to the
Administrative Agent, the Administrative Agent or any of its officers or employees is irrevocably
authorized to make the same. Each Guarantor agrees that until the Guaranteed Obligations (other
than the Unliquidated Obligations) have been paid in full (in cash) and satisfied and all financing
arrangements pursuant to any Loan Document among the Borrower and the Secured Parties have been
terminated, no Guarantor will assign or transfer to any Person (other than the Administrative
Agent) any claim any such Guarantor has or may have against any Obligor.
SECTION 7. Contribution with Respect to Guaranteed Obligations.
(a) To the extent that any Guarantor shall make a payment under this Guaranty (a
“Guarantor Payment”) which, taking into account all other Guarantor Payments then
previously or concurrently made by any other Guarantor, exceeds the amount which otherwise would
have been paid by or attributable to such Guarantor if each Guarantor had paid the aggregate
Guaranteed Obligations satisfied by such Guarantor Payment in the same proportion as such
Guarantor’s “Allocable Amount” (as defined below) (as determined immediately prior to such
Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Guarantors as determined
immediately prior to the making of such Guarantor Payment, then, following indefeasible
payment in full in cash of the Guarantor Payment and the Guaranteed Obligations (other than
Unliquidated Obligations), and all Commitments and Letters of Credit have
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terminated or expired or, in the case of all Letters of Credit, are fully collateralized on
terms reasonably acceptable to the Administrative Agent, and the Credit Agreement has terminated,
such Guarantor shall be entitled to receive contribution and indemnification payments from, and be
reimbursed by, each other Guarantor for the amount of such excess, pro rata based
upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
(b) As of any date of determination, the “Allocable Amount” of any Guarantor shall be equal to
the maximum amount of the claim which could then be recovered from such Guarantor under this
Guaranty without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the
Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(c) This Section 7 is intended only to define the relative rights of the Guarantors,
and nothing set forth in this Section 7 is intended to or shall impair the obligations of
the Guarantors, jointly and severally, to pay any amounts as and when the same shall become due and
payable in accordance with the terms of this Guaranty.
(d) The parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of the Guarantor or Guarantors to which such contribution and
indemnification is owing.
(e) The rights of the indemnifying Guarantors against other Guarantors under this Section
7 shall be exercisable upon the full and indefeasible payment of the Guaranteed Obligations in
cash (other than Unliquidated Obligations that have not yet arisen) and the termination or expiry
(or in the case of all Letters of Credit full collateralization), on terms reasonably acceptable to
the Administrative Agent, of the Commitments and all Letters of Credit issued under the Credit
Agreement and the termination of the Credit Agreement.
SECTION 8. Stay of Acceleration. If acceleration of the time for payment of
any amount payable by the Borrower under the Credit Agreement, any counterparty to any Swap
Agreement, any Banking Services Agreement or any other Loan Document is stayed upon the insolvency,
bankruptcy or reorganization of the Borrower or any of its Affiliates, all such amounts otherwise
subject to acceleration under the terms of the Credit Agreement, any Swap Agreement, any Banking
Services Agreement or any other Loan Document shall nonetheless be payable by each of the
Guarantors hereunder forthwith on demand by the Administrative Agent.
SECTION 9. Notices. All notices, requests and other communications to any
party hereunder shall be given in the manner prescribed in Section 9.01 of the Credit
Agreement with respect to the Administrative Agent at its notice address therein and, with respect
to any Guarantor, in the care of the Borrower at the address of the Borrower set forth in the
Credit Agreement, or such other address or telecopy number as such party may hereafter specify for
such purpose in accordance with the provisions of Section 9.01 of the Credit Agreement.
SECTION 10. No Waivers. No failure or delay by the Administrative Agent or
any Secured Party in exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and remedies provided
in this Guaranty, the Credit Agreement, any Swap Agreement, any Banking Services Agreement and the
other Loan Documents shall be cumulative and not exclusive of any rights or remedies provided by
law.
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SECTION 11. Successors and Assigns. This Guaranty is for the benefit of the
Administrative Agent and the Secured Parties and their respective successors and permitted assigns,
provided, that no Guarantor shall have any right to assign its rights or obligations
hereunder without the consent of the Administrative Agent, and any such assignment in violation of
this Section 11 shall be null and void; and in the event of an assignment of any amounts
payable under the Credit Agreement, any Swap Agreement, any Banking Services Agreement or the other
Loan Documents in accordance with the respective terms thereof, the rights hereunder, to the extent
applicable to the indebtedness so assigned, may be transferred with such indebtedness. This
Guaranty shall be binding upon each of the Guarantors and their respective successors and assigns.
SECTION 12. Changes in Writing. Other than in connection with the addition
of additional Subsidiaries, which become parties hereto by executing a Guaranty Supplement hereto
in the form attached as Annex I, neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated orally, but only in writing signed by each of the
Guarantors and the Administrative Agent with the consent of the Required Lenders under the Credit
Agreement.
SECTION 13. Governing Law; Jurisdiction.
(a) THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE
OF NEW YORK.
(b) Each Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in
New York County and of the United States District Court of the Southern District of New York, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Guaranty or any other Loan Document, or for recognition or enforcement of any judgment, and
each Guarantor hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to the extent permitted
by law, in such Federal court. Each Guarantor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Guaranty or any other Loan Document shall
affect any right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have
to bring any action or proceeding relating to this Guaranty or any other Loan Document against any
Guarantor or its properties in the courts of any jurisdiction.
(c) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Guaranty or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each Guarantor hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(d) Each party to this Guaranty irrevocably consents to service of process in the manner
provided for notices in Section 9 of this Guaranty, and each of the Guarantors hereby
appoints the Borrower as its agent for service of process. Nothing in this Guaranty or any other
Loan Document will affect the right of any party to this Guaranty to serve process in any other
manner permitted by law.
SECTION 14. WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN
9
DOCUMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH GUARANTOR (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER GUARANTOR HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER GUARANTOR WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER GUARANTORS HAVE BEEN INDUCED TO ENTER
INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 15. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Guaranty. In the event an ambiguity or question of
intent or interpretation arises, this Guaranty shall be construed as if drafted jointly by the
parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party
by virtue of the authorship of any provisions of this Guaranty.
SECTION 16. Taxes, Expenses of Enforcement, Etc.
(a) Taxes.
(i) Any and all payments by or on account of any obligation of any Guarantor hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if any Guarantor shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, such Lender, the
Issuing Bank or any other Secured Party (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Guarantor shall make
such deductions and (iii) such Guarantor shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(ii) In addition, the Guarantors shall pay any Other Taxes imposed on or incurred by
the Administrative Agent, a Lender, the Issuing Bank or any other Secured Party to the
relevant Governmental Authority in accordance with applicable law.
(iii) The Guarantors shall indemnify the Administrative Agent, each Lender, the Issuing
Bank and each other Secured Party, within ten (10) days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender, the Issuing Bank or such other Secured Party, as the case may be, on or with
respect to any payment by or on account of any obligation of the Guarantors hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority;
provided that the Guarantors shall not be required to indemnify the Administrative
Agent, any Lender, the Issuing Bank or any other Secured Party for any loss, cost or expense
(including any penalty or interest) arising out of any failure by the Administrative Agent,
such Lender, the Issuing Bank or such other Secured Party to timely pay or file a return
relating to an Indemnified Tax or Other Tax if either the Guarantors have paid the amount of
such Tax to the Administrative Agent, such Lender, the Issuing Bank or such other Secured
Party or the Administrative Agent, such Lender, the Issuing Bank or such other Secured Party
has failed to demand such payment within 120 days of becoming aware of any such Indemnified
Tax or Other Tax. A certificate setting forth in reasonable detail the
10
amount of such payment or liability delivered to the Guarantors by a Lender, the
Issuing Bank or any other Secured Party, or by the Administrative Agent on its own behalf or
on behalf of a Lender, the Issuing Bank or any other Secured Party, shall be conclusive
absent manifest error.
(iv) By accepting the benefits hereof, each Foreign Lender agrees that it will comply
with Section 2.17(e) of the Credit Agreement.
(b) Expenses of Enforcement, Etc. Subject to the terms of the Credit Agreement, after
the occurrence of an Event of Default the Lenders shall have the right at any time to direct the
Administrative Agent to commence enforcement proceedings with respect to the Guaranteed
Obligations. The Guarantors shall pay all out-of-pocket expenses incurred by the Administrative
Agent, the Issuing Bank, any Lender or any other Secured Party, including the fees, charges and
disbursements of any counsel for the Administrative Agent, the Issuing Bank, any Lender or any
other Secured Party, in connection with the enforcement or protection of its rights in connection
with this Guaranty and any other Loan Document, including its rights under this Section;
provided, however, that in no event shall the Guarantors be required to reimburse the
Lenders or any other Secured Party for more than one counsel to the Administrative Agent (and up to
one local counsel to the Administrative Agent in each applicable jurisdiction and regulatory
counsel) and one counsel for all of the other Lenders and Secured Parties (and up to one local
counsel in each applicable jurisdiction and regulatory counsel), unless a Lender or its counsel or
any other Secured Party or its counsel determines that it is impractical or inappropriate (or would
create actual or potential conflicts of interest) to not have individual counsel, in which case
such Lender or such Secured Party may have its own counsel which shall be reimbursed in accordance
with the foregoing.
SECTION 17. Setoff. At any time after all or any part of the Guaranteed
Obligations have become due and payable (by acceleration or otherwise), each Secured Party and the
Administrative Agent may, without notice to any Guarantor and regardless of the acceptance of any
security or collateral for the payment hereof, set off and apply toward the payment of all or any
part of the Guaranteed Obligations any and all deposits (general or special, time or demand,
provisional or final and in whatever currency denominated at any time held) and other obligations
at any time owing by such Secured Party or the Administrative Agent or any of their Affiliates to
or for the credit or the account of any Guarantor against any of and all the Guaranteed
Obligations, irrespective of whether or not such Secured Party or the Administrative Agent shall
have made any demand under this Guaranty and although such obligations may be unmatured. The
rights of each Secured Party or the Administrative Agent under this Section are in addition to
other rights and remedies (including other rights of setoff) which such Secured Party or the
Administrative Agent may have.
SECTION 18. Financial Information. Each Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the Borrower, the other
Guarantors and any and all endorsers and/or other guarantors of all or any part of the Guaranteed
Obligations, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations, or any part thereof, that diligent inquiry would reveal, and each Guarantor hereby
agrees that none of the Secured Parties or the Administrative Agent shall have any duty to advise
such Guarantor of information known to any of them regarding such condition or any such
circumstances. In the event any Secured Party or the Administrative Agent, in its sole discretion,
undertakes at any time or from time to time to provide any such information to a Guarantor, such
Secured Party or the Administrative Agent shall be under no obligation (i) to undertake any
investigation not a part of its regular business routine, (ii) to disclose any information which
such Secured Party or the Administrative Agent, pursuant to accepted or reasonable commercial
finance or banking practices, wishes to maintain confidential or (iii) to make any other or future
disclosures of such information or any other information to such Guarantor.
11
SECTION 19. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but
if any provision of this Guaranty shall be prohibited by or invalid under such law, such provision
shall be ineffective to the extent of such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of this Guaranty.
SECTION 20. Merger. This Guaranty represents the final agreement of each of
the Guarantors with respect to the matters contained herein and may not be contradicted by evidence
of prior or contemporaneous agreements, or subsequent oral agreements, between each such Guarantor
and any Secured Party or the Administrative Agent.
SECTION 21. Headings. Section headings in this Guaranty are for convenience
of reference only and shall not govern the interpretation of any provision of this Guaranty.
SECTION 22. Judgment Currency. If for the purposes of obtaining judgment in
any court it is necessary to convert a sum due from any Guarantor hereunder in the currency
expressed to be payable herein (the “Specified Currency”) into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the Specified Currency with such other currency at the
Administrative Agent’s main New York City office on the Business Day preceding that on which final,
non-appealable judgment is given. The obligations of each Guarantor in respect of any sum due
hereunder shall, notwithstanding any judgment in a currency other than the Specified Currency, be
discharged only to the extent that on the Business Day following receipt by any Secured Party
(including the Administrative Agent), as the case may be, of any sum adjudged to be so due in such
other currency such Secured Party (including the Administrative Agent), as the case may be, may in
accordance with normal, reasonable banking procedures purchase the Specified Currency with such
other currency. If the amount of the Specified Currency so purchased is less than the sum
originally due to such Secured Party (including the Administrative Agent), as the case may be, in
the Specified Currency, each Guarantor agrees, to the fullest extent that it may effectively do so,
as a separate obligation and notwithstanding any such judgment, to indemnify such Secured Party
(including the Administrative Agent), as the case may be, against such loss, and if the amount of
the Specified Currency so purchased exceeds (a) the sum originally due to any Secured Party
(including the Administrative Agent), as the case may be, in the Specified Currency and (b) amounts
shared with other Secured Parties as a result of allocations of such excess as a disproportionate
payment to such other Secured Party under Section 2.18 of the Credit Agreement, such
Secured Party (including the Administrative Agent), as the case may be, agrees, by accepting the
benefits hereof, to remit such excess to such Guarantor.
[SIGNATURE PAGES TO FOLLOW]
12
IN WITNESS WHEREOF, each Initial Guarantor has caused this Guaranty to be duly executed by its
authorized officer as of the day and year first above written.
| AAC CONSULTING GROUP, INC. | ACER/EXCEL INC. | |||||||||
By:
|
/s/ Xxxxx X. Xxxxxxxx | By: | /s/ Xxxxx X. Xxxxxxxx | |||||||
| Title: Director, Senior Vice
President and Chief Financial Officer |
Title: Director, Senior Vice
President and Chief Financial Officer |
|||||||||
| XXXXXX AMERICAS HOLDING INC. | XXXXXX AMERICAS INVESTMENT INC. | |||||||||
By:
|
/s/ Xxxxx X. Xxxxxxxx | By: | /s/ Xxxxx X. Xxxxxxxx | |||||||
| Title: Director, Senior Vice
President and Chief Financial Officer |
Title: Director, Senior Vice
President and Chief Financial Officer |
|||||||||
| XXXXXX AMERICAS MANAGEMENT INC. | XXXXXX INTERNATIONAL CPU LLC | |||||||||
By:
|
/s/ Xxxxx X. Xxxxxxxx | |||||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||||||
| Title: Director, Senior Vice
President and Chief Financial Officer |
Title: Manager |
|||||||||
| XXXXXX DELAWARE LLC | XXXXXX NC LLC | |||||||||
By:
|
/s/ Xxxxx X. Xxxxxxxx | By: | /s/ Xxxxx X. Xxxxxxxx | |||||||
| Title: Manager | Title: Manager | |||||||||
Signature Page to Guaranty
Acknowledged and Agreed to:
JPMORGAN CHASE BANK, N.A., as Administrative Agent
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
Signature Page to Guaranty
ANNEX I TO GUARANTY
Reference is hereby made to the Guaranty (as the same may be amended, restated, supplemented
or otherwise modified from time to time, the
“Guaranty”), dated as of March 15, 2010,
made by each of the Subsidiaries of Xxxxxx International Inc. (the “Borrower”) listed on
the signature pages thereto (each an “Initial Guarantor”, and together with any additional
Subsidiaries which become parties to the Guaranty by executing Guaranty Supplements thereto
substantially similar in form and substance hereto, the “Guarantors”), in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, under the Credit Agreement.
Each capitalized term used herein and not defined herein shall have the meaning given to it in the
Guaranty.
By its execution below, the undersigned, [NAME OF NEW
GUARANTOR], a [__________________]
[corporation] [partnership] [limited liability company] (the “New Guarantor”), agrees to
become, and does hereby become, a Guarantor under the Guaranty and agrees to be bound by such
Guaranty as if originally a party thereto. By its execution below, the undersigned represents and
warrants as to itself that all of the representations and warranties contained in Section 1
of the Guaranty are true and correct in all respects as of the date hereof.
IN WITNESS WHEREOF, the New Guarantor has executed and delivered this Annex I
counterpart to the Guaranty as of this _______________ day of _________, 20___.
| [NAME OF NEW GUARANTOR] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Guaranty
