Exhibit 10.16
GUARANTEE AGREEMENT
This Guarantee Agreement ("CAUTIONNEMENT SOLIDAIRE") is made by CREMASCOLI ORTHO
SA, a French SOCIETE ANONYME with issued capital of FRF 58,511,700, having its
registered offices at 00, xxxxxx Xxxxx Xxxxxxxx, ZI Toulon Est, 83088 Toulon and
registered with the REGISTRE DU COMEMRCE ET DES SOCIETES of Toulon under n 337
787 678 (the "GUARANTOR") in favor of CHASE MANHATTAN BANK, PARIS BRANCH, acting
as Local Agent and Initial Lender, under a credit agreement dated as of 22
December 1999 (the "CREDIT AGREEMENT"), among Cremascoli Ortho Holding S.A., as
borrower (the "BORROWER"), Chase Manhattan Bank, Paris Branch, acting in the
above mentioned capacities, The Chase Manhattan Bank, as U.S. Administrative
Agent and U.S. Collateral Agent, and Bank of America, N.A., as U.S. Syndication
Agent.
All terms not otherwise defined herein shall have for the purpose hereof the
meaning set forth in the Credit Agreement.
The Guarantor agrees with The Chase Manhattan Bank, as Local Agent (the "LOCAL
AGENT"), as follows:
1. GUARANTEE UNDERTAKING
The Guarantor hereby irrevocably guarantees, jointly and severally (as "CAUTION
SOLIDAIRE") with the Borrower, to the Local Agent, for the account of the
Lenders, the full and punctual payment or reimbursement by the Borrower of all
amounts of whatever nature, whether principal, interest, fees or other, due by
the Borrower under the Credit Agreement, as and when said amounts shall be due,
whether at maturity, by acceleration or otherwise, and irrevocably guarantees
the full performance of all other obligations of the Borrower under the Credit
Agreement.
Accordingly, in the event the Borrower would fail to make any payment or
reimbursement of any amount as and when due under the Credit Agreement, the
Guarantor irrevocably undertakes to immediately make such payment to the Local
Agent, upon request of the Local Agent.
The Guarantor will be bound by the acceleration of the maturity of the Loans
declared pursuant to Article VI of the Credit Agreement.
2. WAIVERS
2.1. The Guarantor expressly waives the benefits of "DISCUSSION" and "DIVISION"
provided by articles 2021 and 2026 of the French Civil Code as well as the
benefit of the provisions of article 2039 of the French Civil Code.
2.2. As long as all amounts due by the Borrower under the Credit Agreement shall
not have been paid to the Lenders, the Guarantor agrees not to exercise any
right of subrogation under article 2029 of the French Civil Code or otherwise
against the Borrower or any of its assets, or to take any measure whereby such
Guarantor's claims would compete with those of the Lenders on the assets of the
Borrower.
2.3. The Guarantor hereby irrevocably waives any right to set-off any amount due
by it hereunder against any amount which could be due to it by any Lender.
3. PAYMENTS OBLIGATIONS ABSOLUTE
The Guarantor agrees that its payment obligations hereunder shall be absolute,
whatever the reason of the Borrower's failure to pay any amount due under the
Credit Agreement, including in the event of moratorium, insolvency, bankruptcy,
reorganization or any analogous situation of the Borrower or in the event of
"FORCE MAJEURE".
The Guarantor will not be discharged of its obligations hereunder in the event
the Borrower's obligations under the Credit Agreement would be void or
unenforceable for any reason, or in the event of modification of the legal form
of the Borrower, including in the event the Borrower is wound-up or liquidated.
4. PAYMENTS
4.1. All payments to be made by the Guarantor hereunder shall be made in euros
and shall be made by bank transfer to such account as shall be designated by the
Local Agent.
4.2. All payments to be made by the Guarantor hereunder shall be made without
set-off or counterclaim and free and clear of and without deduction for or on
account of any taxes.
In the event the Guarantor is required by any applicable law or regulation to
make any withholding or deduction from any amount payable to the Local Agent
hereunder, the Guarantor shall, to the fullest extent permitted by law, pay such
additional amounts as shall be necessary to ensure that the Local Agent receives
a net amount equal to the full amount which it would have received had payment
by the Guarantor not been subject to such withholding or deduction.
5. REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants that:
(a) it is a company duly organized and validly existing under the laws of its
jurisdiction of incorporation, has the power and authority to own its
property and assets and carry on its
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business as now being conducted and has the power and authority to enter
into and perform this Guarantee Agreement;
(b) all necessary corporate action has been taken to authorize the entry into
and performance by the Guarantor of this Guarantee Agreement;
(c) this Guarantee Agreement constitutes the legal, valid and binding
obligation of said Guarantor enforceable in accordance with its terms;
this Guarantee Agreement is in proper form for enforcement in the courts
of France;
(d) the entry into and performance of this Guarantee Agreement and the
transactions contemplated hereby do not conflict with (i) any law or
regulation or any official or judicial order applicable to or binding on
the Guarantor; (ii) the "STATUTS", charter or by-laws of the Guarantor; or
(iii) any contractual undertaking made by the Guarantor; and
(e) it has received a copy of the Credit Agreement and has full knowledge of
the terms thereof.
6. RANKING OF THE GUARANTOR'S OBLIGATIONS -- NEGATIVE PLEDGE
The obligations of the Guarantor under this Guarantee Agreement rank and will
rank at least PARI PASSU with all its present and future unsecured and
unsubordinated obligations. Until all amounts due under the Credit Agreement
shall have been fully paid to the Lenders, the Guarantor undertakes not to grant
any security interest on any of its assets as security for any of its
indebtedness without the Lenders at the same time sharing equally and ratably in
such security interest.
7. TERM -- SUCCESSORS OF THE GUARANTOR
This Guarantee Agreement shall remain in full force and effect until all amounts
due under the Credit Agreement shall have been finally paid in full to the
Lenders.
All successors in interest of the Guarantor shall be jointly and severally bound
together by this Guarantee Agreement.
8. NOTICES
All notices or other communications hereunder to any party hereto shall be
deemed to be duly given or made when delivered (in the case of personal delivery
or letter) and when despatched (in the case of telex or telecopy) to such party
addressed to it at its address as follows:
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(i) if to the Guarantor:
at its registered office address
Telecopy: x00 00 00 00 00 00
with a copy to Xx. Xxxx Xxxxxx (x00 000 000 00 00)
(ii) if to the Local Agent:
The Chase Manhattan Bank, Paris Branch
Washington Plaza
00-00, xxx Xxxxxxxxxx
00000 Xxxxx, Xxxxxx
Telecopy no.: +33.153 77 14 49;
Attention: Xxxx Xxxxx
or at such other address as such party may hereafter notify in writing to the
other party. A written notice includes a notice telex or telecopy.
9. REPLACEMENT OF THE LOCAL AGENT
The Guarantor agrees that, in the event The Chase Manhattan Bank, Paris Branch,
would cease to act as Local Agent under the Credit Agreement, this Guarantee
Agreement may, by simple notice to the Guarantor, be assigned and transferred to
such institution as shall act as the new Local Agent under the Credit Agreement.
10. GOVERNING LAW AND JURISDICTION
10.1. This Guarantee Agreement shall be governed by French law.
10.2. The Guarantor hereby irrevocably and unconditionally submits, for itself
and its property, to the non-exclusive 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
Guarantee Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto 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. The 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
Guarantee Agreement shall affect any right that the Lenders may otherwise have
to bring any action or proceeding relating to
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this Guarantee Agreement against the Guarantor or its properties in the courts
of any other jurisdiction.
10.3. The 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 Guarantee Agreement in any court referred to
in paragraph 10.2. above. The Guarantor hereby irrevocably waives, to the
fullest extent permitted by law, the defense of any inconvenient forum to the
maintenance of such action or proceeding in any such court.
10.4. The Guarantor elects domicile at its registered office address.
10.5. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS GUARANTEE AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OR ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
GUARANTEE AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.5
IN WITNESS whereof the Guarantor has caused this Guarantee Agreement to be duly
executed on the date written herebelow.
Made in London
On 22 December 1999
THE GUARANTOR
/s/ Xxxx Xxxxxxxx
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By: Xxxx Xxxxxxxx
Title: PRESIDENT DU CONSEIL D'ADMINISTRATION
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ACCEPTED BY CHASE MANHATTAN BANK, PARIS BRANCH
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: V.P.
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