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EXHIBIT 10.52
GUARANTEE
GUARANTEE dated as of March 5, 1999, made by SAFESKIN
CORPORATION, a Florida corporation (the "Company") and the other parties hereto,
as joint and several guarantors hereunder (together with the Company and any
other Subsidiary of the Company that may become a party hereto as provided
herein, the "Guarantors" and individually, a "Guarantor"), in favor of the
Beneficiaries (as hereinafter defined).
Preliminary Statement
The Guarantors wish to induce (i) the Lenders to enter into the
Credit Agreement and the other Operative Agreements to which they are party; and
(ii) the Investor to enter into the Participation Agreement (as hereinafter
defined) and the other Operative Agreements to which it is a party.
NOW, THEREFORE, in consideration of the premises contained herein
and to induce (i) the Lenders to enter into the Credit Agreement and the other
Operative Agreements to which they are party; and (ii) the Investor to enter
into the Participation Agreement and the other Operative Agreements to which it
is a party, the Guarantors hereby agree for the benefit of the Agent, for the
ratable benefit of the Lenders, and the Investor and their respective successors
and assigns (individually a "Beneficiary", collectively, the "Beneficiaries"),
as follows:
1. Defined Terms. (a) Capitalized terms not otherwise defined
herein (including in the Preliminary Statement) shall have the meanings ascribed
to them in Annex A to the Participation Agreement dated as of the date hereof
among Safeskin Real Estate Incorporated (the "Lessee"), Union Bank of
California, N.A., not in its individual capacity but solely as Trustee (the
"Lessor"), Bankers Commercial Corporation (the "Investor"), the Trust Company,
Union Bank of California, N.A., as agent (the "Agent") and the several banks and
financial institutions from time to time party thereto (the "Lenders"), as the
same may from time to time be amended, supplemented or otherwise modified (the
"Participation Agreement"), and the rules of usage set forth in Annex A to the
Participation Agreement shall apply to this Guarantee.
(b) As used herein, the following terms shall have the following
meanings:
"Contribution Obligations" means the collective reference
to the outstanding amount of the Investor Contributions and the Investor Yield
with respect thereto and all rights of the Investor to receive distributions
under the Trust Agreement and any of the other Operative Agreements.
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"Guaranteed Obligations" means the collective reference to
(i) the Note Obligations and (ii) the Contribution Obligations and, with respect
to each such obligation, interest accruing thereon at the applicable rate
provided in the Operative Agreements after maturity and interest accruing at the
then applicable rate provided in the Operative Agreements after the filing of
any petition in bankruptcy, or the commencement of an insolvency, reorganization
or like proceeding, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding and whether such obligations are direct
or indirect, absolute or contingent, due or to become due, or now existing or
hereinafter incurred, which may arise, under, out of or in connection with any
of the Operative Agreements, any other document made, delivered or given in
connection therewith, in each case whether on account of principal, interest,
Investor Contributions or Investor Yield, reimbursement obligations, fees,
indemnities, costs, expenses, or payment obligations (including, without
limitation, all fees and disbursements of counsel to any of the Beneficiaries).
"Note Obligations" means the collective reference to the
unpaid principal of and interest on the Notes and all other payment obligations
and liabilities of the Lessor to the Agent and the Lenders under the Notes, the
Credit Agreement and any of the other Operative Agreements.
2. Guarantee. (a) Subject to the provisions of paragraph 2(b) and
(c), the Guarantors hereby, jointly and severally, unconditionally and
irrevocably guaranty to the Beneficiaries and their respective successors,
endorsees, transferees and assigns the prompt and complete payment when due
(whether at the stated maturity, by acceleration or otherwise) of the Guaranteed
Obligations.
(b) Anything to the contrary notwithstanding, (i) if a
Construction Risk Event has occurred and if no other Lease Event of Default or
Lease Default has occurred and is continuing at such time, the obligations of
the Guarantors hereunder shall be limited to the Note Obligations in the amount
of the Non-Completion Amount and (ii)(A) if no Lease Event of Default or Lease
Default on the Maturity Date has occurred and is continuing, the obligations of
the Guarantors hereunder shall be limited to the unpaid principal of and
interest on the Tranche A Notes and (B) if any Lease Event of Default or Lease
Default on the Maturity Date (other than or in addition to a Construction Risk
Event) has occurred and is continuing, the Guarantors shall be liable for the
Guaranteed Obligations.
(c) Anything herein or in any other Operative Agreement to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Operative Agreement shall in no event exceed the amount which
can be guaranteed by such Guarantor under applicable federal and state laws
relating to the insolvency of debtors.
(d) Each Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of counsel) which may
be paid or incurred by the Agent or any Lender in enforcing, or obtaining advice
of counsel in respect of, any rights with respect to, or collecting, any or all
of the Guaranteed Obligations and/or enforcing any rights with respect to, or
collecting against, such Guarantor under this Guarantee. This Guarantee shall
remain in full force and effect until the Guaranteed Obligations are paid in
full and the Commitments are terminated.
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(e) Each Guarantor agrees that the Guaranteed Obligations may at
any time and from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing this Guarantee or affecting the rights and
remedies of the Agent or any Lender hereunder.
(f) No payment or payments made by the Borrower, any of the
Guarantors, any other guarantor or any other Person or received or collected by
the Agent or any Lender from the Borrower, any of the Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Guaranteed Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment or payments (other than
payments made by such Guarantor in respect of the Guaranteed Obligations or
payments received or collected from such Guarantor in respect of the Guaranteed
Obligations), remain liable for the Guaranteed Obligations up to the maximum
liability of such Guarantor as set forth in this Section 2 until the Guaranteed
Obligations are paid in full and the Commitments are terminated.
3. Right of Set-off. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, the Agent and each Lender is hereby authorized at any time or from time
to time, without presentment, demand, protest or other notice of any kind to the
Borrower, the Guarantors or to any other Person, any such notice being hereby
expressly waived, to set-off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing by the
Agent or such Lender (including without limitation, by branches and agencies of
the Agent or such Lender wherever located) to or for the credit or the account
of the Guarantors against and on account of the obligations and liabilities of
the Guarantors hereunder or under any of the other Operative Agreements, and all
other claims of any nature or description arising out of or connected with this
Guarantee or any other Operative Agreement, irrespective of whether the Agent or
such Lender shall have made any demand hereunder and although said obligations,
liabilities or claims, or any of them, shall be contingent or unmatured. The
Agent and each Lender agrees promptly to notify the Guarantors and the Agent
after any such set-off and application made by the Agent or such Lender,
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
4. No Subrogation. Notwithstanding any payment or payments made
by the Guarantors hereunder or any set-off or application of funds of the
Guarantors by any Lender, no Guarantor shall be entitled to exercise or enforce
any subrogation rights of the Agent or any Lender against the Borrower or any
other Person or any collateral security or guarantee or right of offset held by
the Agent or any Lender for the payment of the Guaranteed Obligations, nor shall
any Guarantor seek or be entitled to seek any contribution or reimbursement from
the Borrower or any other Person in respect of payments made by such Guarantor
hereunder, until all amounts owing to the Agent and the Lenders by the Borrower
on account of the Guaranteed Obligations and all amounts owing hereunder are
paid in full and the Commitments are terminated. If any amount shall be paid to
any Guarantor on account of such subrogation rights at any time when all of the
Guaranteed Obligations and all amounts owing hereunder shall not have been paid
in full or the Commitments shall not have been terminated, such amount shall be
held by such
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Guarantor in trust for the Agent and the Lenders, segregated from other funds of
such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned
over to the Agent in the exact form received by such Guarantor (duly indorsed by
such Guarantor to the Agent, if required), to be applied against the Guaranteed
Obligations, whether matured or unmatured, in such order as set forth in Section
8.2 of the Credit Agreement.
5. Amendments, etc. with respect to the Guaranteed Obligations;
Waiver of Rights. The Guarantors shall remain obligated hereunder
notwithstanding that, without any reservation of rights against the Guarantors
and without notice to or further assent by the Guarantors, any demand for
payment of any of the Guaranteed Obligations made by the Agent or any Lender may
be rescinded by such party and any of the Guaranteed Obligations continued, and
the Guaranteed Obligations, or the liability of any other party upon or for any
part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Agent or any Lender, and the Credit Agreement,
the Participation Agreement and the other Operative Agreements may be amended,
modified, supplemented or terminated, in whole or in part, as the Agent (or the
Required Lenders, as the case may be) may deem advisable from time to time in
accordance with the terms thereof, and any collateral security, guarantee or
right of offset at any time held by the Agent or any Lender for the payment of
the Guaranteed Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Guaranteed Obligations or for this Guarantee or any property subject thereto.
When making any demand hereunder against the Guarantors, the Agent or any Lender
may, but shall be under no obligation to, make a similar demand on the Borrower
or any other guarantor, and any failure by the Agent or any Lender to make any
such demand or to collect any payments from the Borrower or any other guarantor
or any release of the Borrower or such other guarantor shall not relieve the
Guarantors from their obligations under this Guarantee, and shall not impair or
affect the rights and remedies, express or implied, or as a matter of law, of
the Agent or any Lender against the Guarantors. For the purposes hereof "demand"
shall include the commencement and continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional. Each Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by the Agent or any
Lender upon this Guarantee or acceptance of this Guarantee; the Guaranteed
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guarantee; and all dealings between the Borrower and such Guarantor,
on the one hand, and the Agent and the Lenders, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in reliance upon
this Guarantee. Each Guarantor waives any right it may have to require the Agent
or any of the Lenders to proceed against the Lessor, the Lessee or any other
Person, to proceed against or exhaust any security held from the Lessor, the
Lessee or any other Person, or pursue or exhaust any other remedy available to
the Agent or any Lender. Each Guarantor waives all statutes of limitations as a
defense to any action or proceeding brought by the Agent or any Lender against
any Guarantor. Each Guarantor waives any defense based on (i) any claim that any
Guarantor's obligations exceed or are more burdensome than those of the Lessor,
the Lessee or any other Person; (ii) any legal disability of
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the Lessor, the Lessee or any other Person, (iii) any release, discharge,
modification, impairment or limitation of the liability of the Lessor, the
Lessee or any other Person, or (iv) any amendment, modification, termination,
release, cancellation, or other change to any of the Guaranteed Obligations.
Before signing this Guaranty, the Guarantors investigated the financial
condition and business operations of the Lessor and the Lessee, the present and
former condition, uses and ownership of any real property security, and such
other matters as the Guarantors deemed appropriate to assure themselves of the
Lessor's and the Lessee's ability to discharge the Guaranteed Obligations. The
Guarantors assume full responsibility for that due diligence, as well as for
keeping informed of all matters which may affect the Lessor's and the Lessee's
ability to pay and perform their respective obligations. The Agent and the
Lenders have no duty to disclose to the Guarantors any information which they
may have or receive about the Lessor's or the Lessee's financial condition or
business operations, the condition or uses of any such property, or any other
circumstances bearing on the Lessor's or the Lessee's ability to perform. Each
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Borrower or such Guarantor with respect
to the Guaranteed Obligations. Each Guarantor understands and agrees that this
Guarantee shall be construed as a continuing, absolute and unconditional
guarantee and surety of payment without regard to (a) the validity, regularity
or enforceability of the Credit Agreement or any other Operative Agreement, any
of the Guaranteed Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Borrower or such Guarantor against the Agent
or any Lender, or (c) any other circumstance whatsoever (with or without notice
to or knowledge of the Borrower or such Guarantor) which constitutes, or might
be construed to constitute, an equitable or legal discharge of the Borrower for
the Guaranteed Obligations, or of such Guarantor under this Guarantee, in
bankruptcy or in any other instance. When pursuing its rights and remedies
hereunder against any Guarantor, the Agent and any Lender may, but shall be
under no obligation to, pursue such rights and remedies as it may have against
the Borrower or any other Person or against any collateral security or guarantee
for the Guaranteed Obligations or any right of offset with respect thereto, and
any failure by the Agent or any Lender to pursue such other rights or remedies
or to collect any payments from the Borrower or any such other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the Borrower or any such other Person or any
such collateral security, guarantee or right of offset, shall not relieve such
Guarantor of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Agent and the Lenders against such Guarantor. This Guarantee shall remain in
full force and effect and be binding in accordance with and to the extent of its
terms upon such Guarantor and the successors and assigns thereof, and shall
inure to the benefit of the Agent and the Lenders, and their respective
successors, endorsees, transferees and assigns, until all the Guaranteed
Obligations and the obligations of such Guarantor under this Guarantee shall
have been satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
the Borrower may be free from any Guaranteed Obligations.
7. Reinstatement. This Guarantee shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Guaranteed Obligations is rescinded or must otherwise be
restored or returned by the Agent or
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any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or the Guarantors, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or the Guarantors or any substantial part of its
property, or otherwise, all as though such payments had not been made.
8. Payments. The Guarantors hereby guarantee that payments
hereunder will be paid to the Agent without set-off or counterclaim in Dollars
at the office of the Agent located at Union Bank of California, N.A., San Diego
Commercial Banking Office, 530 "B" Street, 0xx Xxxxx, X-000, Xxx Xxxxx,
Xxxxxxxxxx 00000-0000.
9. Representations and Warranties. Each of the Guarantors
represents and warrants to each of the Beneficiaries as of the Initial Closing
Date as follows:
(a) Existence and Qualification; Power; Compliance With Laws.
The Company is a corporation duly formed, validly existing and in good
standing under the Laws of Florida. The Company is duly qualified or
registered to transact business and is in good standing in California
and each other jurisdiction in which the conduct of its business or the
ownership or leasing of its properties makes such qualification or
registration necessary, except where the failure so to qualify or
register and to be in good standing would not constitute a Material
Adverse Effect. The Company has all requisite power and authority to
conduct its business, to own and lease its properties and to execute and
deliver each Operative Agreement to which it is a Party and to perform
the Guaranteed Obligations. The chief executive offices of the Company
are located in California. All outstanding shares of capital stock of
the Company are duly authorized, validly issued, fully paid and
non-assessable, and no holder thereof has any enforceable right of
rescission under any applicable state or federal securities Laws. The
Company is in compliance with all Laws and other Legal Requirements
applicable to its business, has obtained all authorizations, consents,
approvals, orders, licenses and permits from, and has accomplished all
filings, registrations and qualifications with, or obtained exemptions
from any of the foregoing from, any Governmental Authority that are
necessary for the transaction of its business, except where the failure
so to comply, obtain authorizations, etc., file, register, qualify to
obtain exemptions does not constitute a Material Adverse Effect.
(b) Authority; Compliance With Other Agreements and Instruments
and Government Regulations. The execution, delivery and performance by
the Company and the Subsidiary Guarantors of the Operative Agreements to
which it is a Party have been duly authorized by all necessary corporate
action, and do not and will not:
(i) Require any consent or approval not heretofore
obtained of any partner, director, stockholder, security holder or
creditor of such Party;
(ii) Violate or conflict with any provision of such
Party's charter, articles of incorporation or bylaws, as applicable;
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(iii) Result in or require the creation or imposition of
any Lien (other than pursuant to the Operative Agreements) or Right of
Others upon or with respect to any Property now owned or leased or
hereafter acquired by such Party;
(iv) Violate any Requirement of Law applicable to such
Party;
(v) Result in a breach of or constitute a default under,
or cause or permit the acceleration of any obligation owed under, any
indenture or loan or credit agreement or any other Contractual
Obligation to which such Party is a party or by which such Party or any
of its Property is bound or affected;
and such Party is not in violation of, or default under, any Requirement of Law
or Contractual Obligation, or any indenture, loan or credit agreement described
in Section 9(b)(v), in any respect that constitutes a Material Adverse Effect.
(c) No Governmental Approvals Required. Except as previously
obtained or made, no authorization, consent, approval, order, license or
permit from, or filing, registration or qualification with, any
Governmental Authority is or will be required to authorize or permit
under applicable Laws the execution, delivery and performance by the
Company or any Subsidiary Guarantor of the Operative Agreements to which
it is a Party.
(d) Subsidiaries.
(i) Schedule 9(d) hereto correctly sets forth the names,
form of legal entity, number of shares of capital stock issued and
outstanding, number of shares owned by the Company or a Subsidiary of
the Company (specifying such owner) and jurisdictions of organization of
all Subsidiaries of the Company and specifies which thereof, as of the
Initial Closing Date, are Inactive Subsidiaries. Except as described in
Schedule 9(d), the Company does not own any capital stock, equity
interest or debt security which is convertible, or exchangeable, for
capital stock or equity interest in any Person. Unless otherwise
indicated in Schedule 9(d), all of the outstanding shares of capital
stock, or all of the units of equity interest, as the case may be, of
each Subsidiary are owned of record and beneficially by the Company,
there are no outstanding options, warrants or other rights to purchase
capital stock of any such Subsidiary, and all such shares or equity
interests so owned are duly authorized, validly issued, fully paid and
non-assessable, and were issued in compliance with all applicable state
and federal securities and other Laws, and are free and clear of all
Liens, except for Permitted Encumbrances and other Liens permitted under
Section 10(b)(iv) of this Guarantee.
(ii) Each Subsidiary is a legal entity of the type
described in Schedule 9(d) duly formed, validly existing and in good
standing under the Laws of its jurisdiction of organization, is duly
qualified to do business as a foreign organization and is in good
standing as such in each jurisdiction in which the conduct of its
business or the ownership or leasing of its properties makes such
qualification necessary (except where the failure to be so duly
qualified and in good standing does not constitute a Material Adverse
Effect), and has all requisite power and authority to conduct its
business and to own and lease its properties.
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(iii) Each Subsidiary is in compliance with all Laws and
other requirements applicable to its business and has obtained all
authorizations, consents, approvals, orders, licenses, and permits from,
and each such Subsidiary has accomplished all filings, registrations,
and qualifications with, or obtained exemptions from any of the
foregoing from, any Governmental Authority that are necessary for the
transaction of its business, except where the failure to be in such
compliance, obtain such authorizations, consents, approvals, orders,
licenses, and permits, accomplish such filings, registrations, and
qualifications, or obtain such exemptions, does not constitute a
Material Adverse Effect.
(e) Financial Statements. The Company has furnished to the
Beneficiaries (i) the audited financial statements of the Company for
the Fiscal Year ended December 31, 1997 and (ii) the unaudited balance
sheet and statement of operations of the Company for the Fiscal Quarter
ended September 30, 1998. The financial statements described in clause
(i) fairly present in all material respects the financial condition,
results of operations and changes in financial position, and the balance
sheet and statement of operations described in clause (ii) fairly
present the financial condition and results of operation of the Company
as of such dates and for such periods in conformity with GAAP
consistently applied, subject only to normal year-end accruals and audit
adjustments.
(f) No Other Liabilities; No Material Adverse Changes. The
Company and its Subsidiaries do not have any material liability or
material contingent liability required under GAAP to be reflected or
disclosed, and not reflected or disclosed, in the balance sheet
described in Section 9(e)(ii), other than liabilities and contingent
liabilities arising in the ordinary course of business since the date of
such financial statements. Except as set forth in Schedule 9(f)
attached, as of the Initial Closing Date, no circumstance or event has
occurred that constitutes a Material Adverse Effect since September 30,
1998.
(g) Title to and Location of Property. The Company and its
Subsidiaries have valid title to their respective property (other than
assets which are the subject of a Capital Lease Obligation) reflected in
the balance sheet described in Section 9(e)(ii), other than items of
property or exceptions to title which are in each case immaterial and
property subsequently sold or disposed of in the ordinary course of
business. Such property is free and clear of all Liens and Rights of
Others, other than Liens or Rights of Others described in Schedule
9(g)(A) and Permitted Encumbrances and Permitted Rights of Others or
other Liens permitted under Section 10(b)(iv) of this Guarantee. All
property of the Company and its Subsidiaries is located at one of the
locations described in Schedule 9(g)(B).
(h) Intangible Assets. The Company and its Subsidiaries own, or
possess the right to use to the extent necessary in their respective
businesses, all material trademarks, trade names, copyrights, patents,
patent rights, computer software, licenses and other Intangible Assets
that are used in the conduct of their businesses as now operated, and no
such Intangible Asset, to the best knowledge of the Company, conflicts
with the valid trademark, trade name, copyright, patent, patent right or
Intangible Asset of any other Person to the extent that such conflict
constitutes a Material Adverse Effect. Except as set forth in Schedule
7.3(h), the Company has not used any trade name, trade style or "dba"
during the five year period ending on the Initial Closing Date.
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(i) Public Utility Holding Company Act. Neither the Company nor
any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(j) Litigation. Except for (i) any matter fully covered as to
subject matter and amount (subject to applicable deductibles and
retentions) by insurance for which the insurance carrier has not
asserted lack of subject matter coverage or reserved its right to do so,
(ii) any matter, or series of related matters, involving a claim against
the Company or any of its Subsidiaries of less than $1,000,000, (iii)
matters of an administrative nature not involving a claim or charge
against the Company or any of its Subsidiaries and (iv) matters set
forth in Schedule 9(j), there are no actions, suits, proceedings or
investigations pending as to which the Company or any of its
Subsidiaries have been served or have received notice or, to the best
knowledge of the Company, threatened against or affecting the Company or
any of its Subsidiaries or any property of any of them before any
Governmental Authority.
(k) Binding Obligations. Each of the Operative Agreements to
which the Company and any Subsidiary Guarantor is a Party will, when
executed and delivered by such Party, constitute the legal, valid and
binding obligation of such Party, enforceable against such Party in
accordance with its terms, except as enforcement may be limited by
Debtor Relief Laws to equitable principles relating to the granting of
specific performance and other equitable remedies as a matter of
judicial discretion.
(l) No Default. No event has occurred and is continuing that is
a Default or Event of Default.
(m) ERISA.
(i) With respect to each Pension Plan:
(a) such Pension Plan complies in all material respects
with ERISA and any other applicable Laws to the extent that
noncompliance could reasonably be expected to have a
Material Adverse Effect;
(b) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA)
that could reasonably be expected to have a Material Adverse
Effect;
(c) no "reportable event" (as defined in Section 4043
of ERISA, but excluding such events as to which the PBGC has
by regulation waived the requirement therein contained that
it be notified within thirty days of the occurrence of such
event) has occurred that could reasonably be expected to
have a Material Adverse Effect; and
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(d) neither the Company nor any of its Subsidiaries has
engaged in any non-exempt "prohibited transaction" (as
defined in Section 4975 of the Code) that could reasonably
be expected to have a Material Adverse Effect.
(ii) Neither the Company nor any of its Subsidiaries has
incurred or expects to incur any withdrawal liability to any
Multiemployer Plan that could reasonably be expected to have a Material
Adverse Effect.
(n) Regulation U; Investment Company Act. Neither the Company
nor any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit to others for
the purpose of purchasing or carrying, any Margin Stock in violation of
Regulation U. Neither the Company nor any of its Subsidiaries is or is
required to be registered as an "investment company" under the
Investment Company Act of 1940.
(o) Disclosure. No written statement made by a Senior Officer to
the Agent or any Lender in connection with this Guarantee, or in
connection with any Requisition, as of the date thereof contained any
untrue statement of a material fact or omitted a material fact necessary
to make the statement made not misleading in light of all the
circumstances existing at the date the statement was made.
(p) Tax Liability. The Company and its Subsidiaries have filed
all tax returns which are required to be filed, and have paid, or made
provision for the payment of, all taxes with respect to the periods,
property or transactions covered by said returns, or pursuant to any
assessment received by the Company or any of its Subsidiaries, except
(a) such taxes, if any, as are being contested in good faith by
appropriate proceedings and as to which adequate reserves have been
established and maintained and (b) immaterial taxes so long as no
material property of the Company or any of its Subsidiaries is at
impending risk of being seized, levied upon or forfeited.
(q) Projections. As of the Initial Closing Date, to the best
knowledge of the Company, the assumptions set forth in the Projections
are reasonable and consistent with each other and with all facts known
to the Company, and the Projections are reasonably based on such
assumptions. Nothing in this Section 9(q) shall be construed as a
representation or covenant that the Projections in fact will be
achieved.
(r) Hazardous Materials. Except as described in Schedule 9(r),
as of the Initial Closing Date (a) neither the Company nor any of its
Subsidiaries at any time has disposed of, discharged, released or
threatened the release of any Hazardous Materials on, from or under the
real property in violation of any Hazardous Materials Law that would
individually or in the aggregate constitute a Material Adverse Effect,
(b) to the best knowledge of the Company, no condition exists that
violates any Hazardous Material Law affecting any real property except
for such violations that would not individually or in the aggregate
constitute a Material Adverse Effect, (c) no real property or any
portion thereof is or has been utilized by the Company or any of its
Subsidiaries as a site for the manufacture of any Hazardous Materials
and (d) to the extent that any Hazardous Materials are used, generated
or stored by the Company or any of its Subsidiaries on any
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real property, or transported to or from such real property by the
Company or any of its Subsidiaries, such use, generation, storage and
transportation are in compliance with all Hazardous Materials Laws
except for such non-compliance that would not constitute a Material
Adverse Effect or be materially adverse to the interests of the
Beneficiaries.
(s) Security Interests. Upon the execution and delivery of the
Security Agreement, the Security Agreement will create a valid first
priority security interest in the Collateral described therein securing
the Guaranteed Obligations, the Corporate Credit Agreement Obligations
and the Senior Secured Note Obligations (subject only to Permitted
Encumbrances, Permitted Rights of Others and other matters permitted by
Section 6.9 of the Corporate Credit Agreement and to such qualifications
and exceptions as are contained in the Uniform Commercial Code with
respect to the priority of security interests perfected by means other
than the filing of a financing statement or with respect to the creation
of security interests in property to which Division 9 of the Uniform
Commercial Code does not apply) and all actions necessary to perfect the
security interest so created, other than filing of the UCC-1 financing
statements delivered to the Collateral Agent pursuant to Section 8.1 of
the Corporate Credit Agreement with the appropriate Governmental
Authority, have been taken and completed. Upon the execution and
delivery of the Pledge Agreement, the Pledge Agreement will create a
valid first priority security interest in the Pledged Collateral and
upon delivery of the Pledged Collateral to the Collateral Agent all
action necessary to perfect the security interest so created will have
been taken and completed.
10. Covenants. (a) The Guarantors hereby agree that all of the
covenants of the Company set forth in Article 5, Article 6 and Article 7 of the
Corporate Credit Agreement, as amended, supplemented or otherwise modified from
time to time, are hereby expressly incorporated by reference in this Guarantee
as though set forth in full in this Guarantee. Capitalized terms used in said
Article 5, Article 6 and Article 7 shall have the meanings given to such terms
in Article 1 of the Corporate Credit Agreement, except that all references in
said Articles to the "Borrower" shall mean the Company and to the
"Administrative Agent" shall mean the Agent. The Guarantors further agree that
all affirmative and negative covenants of the Company which may hereafter be set
forth in any Replacement Corporate Credit Agreement, as amended, supplemented or
otherwise modified from time to time, shall be incorporated by reference in this
Guarantee as though set forth in full in this Guarantee. In the event that the
Corporate Credit Agreement or any Replacement Corporate Credit Agreement shall
terminate (other than as a result of a Lease Event of Default set forth in
Section 17.1(i) of the Lease) without being replaced by a Replacement Corporate
Credit Agreement, such covenants as they exist on the date of such termination
shall remain in effect and incorporated herein as though set forth in full
herein notwithstanding such termination. Notwithstanding the provisions of the
first and second sentences of this Section 10(a), the covenants incorporated
herein may not be amended, supplemented, waived or otherwise modified without
the consent of the Required Lenders if a default under the Corporate Credit
Agreement or any Replacement Corporate Credit Agreement has occurred.
(b) So long as this Guarantee and the Commitments remain in
effect and the Guaranteed Obligations remain outstanding and unpaid, the Company
shall, and shall cause each of its Subsidiaries to:
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(i) Pledge all of the capital stock of any Significant
Domestic Subsidiary, and 65% of the capital stock of any
Significant Foreign Subsidiary (other than Safeskin
Corporation (Malaysia) SDN BHD), formed or acquired after
the Closing Date (as defined in the Corporate Credit
Agreement) pursuant to the Pledge Agreement, and cause each
such Significant Domestic Subsidiary to execute and deliver
an appropriate joinder to this Guarantee and the Security
Agreement
(ii) Promptly following its acquisition of any fee
simple real property in the United States, execute and
deliver to the Collateral Agent a deed of trust or mortgage
in form and substance acceptable to the Collateral Agent
creating a first priority Lien on such real property
securing the Guaranteed Obligations, the Corporate Credit
Agreement Obligations and the Senior Secured Note
Obligations, and provide to the Collateral Agent such
customary lender's title insurance policies, appraisals,
environmental reports and other related documents as the
Collateral Agent may reasonably request;
(iii) If the aggregate sales by Foreign Subsidiaries to
unrelated Persons constitute more than 25% of the aggregate
sales by the Company and its Subsidiaries to unrelated
Persons, promptly execute and deliver such security
documents to and in favor of the Collateral Agent as the
Collateral Agent may require to obtain and perfect a Lien on
the property of any Foreign Subsidiary whose sales to
unrelated Persons constitute more than 15% of the total
sales by the Company and its Subsidiaries to unrelated
Persons;
(iv) Not create, incur, assume or suffer to exist any
Lien or Negative Pledge of any nature upon or with respect
to any of their respective properties, or engage in any sale
and leaseback transaction with respect to any of their
respective properties, whether now owned or hereafter
acquired, except:
(a) Liens and Negative Pledges existing on the
Initial Closing Date and disclosed in Schedule 10(b)(iii)
and any renewals/extensions or amendments thereof,
provided that the obligations secured or benefitted
thereby are not increased;
(b) Liens and Negative Pledges securing, pari passu,
the Guaranteed Obligations, the Corporate Credit Agreement
Obligations and the Senior Secured Note Obligations;
(c) Permitted Encumbrances;
(d) Liens on Property acquired by the Company or any
of its Subsidiaries that were in existence at the time of
the acquisition of such Property and were not created in
contemplation of such acquisition;
(e) Liens securing Indebtedness permitted by Section
6.10(d) of the Corporate Credit Agreement on and limited
to the capital assets
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acquired, constructed or financed with the proceeds of
such Indebtedness or with the proceeds of any Indebtedness
directly or indirectly refinanced by such Indebtedness;
(f) Non-consensual Liens securing Indebtedness of not
more than $500,000 provided that such Liens are discharged
within thirty (30) days after their incurrence by the
Company;
(g) Liens securing Additional Senior Indebtedness in
an aggregate principal amount outstanding at any time of
not more than the Permitted Additional Senior Indebtedness
Amount, provided that the holder(s) of such Additional
Senior Indebtedness become a party to the Intercreditor
Agreement; and
(h) Liens securing the Company's obligations to
purchasers of accounts receivable sold by the Company as
permitted under Section 6.2 of the Corporate Credit
Agreement.
(v) As soon as practicable, and in any event within 45 days
after the end of each Fiscal Quarter, deliver to the Investor
and to the Agent, for distribution to the Lenders, a Pricing
Certificate substantially in the form set forth in Exhibit A
hereto setting forth a calculation of the Leverage Ratio as of
the last day of such Fiscal Quarter, and providing reasonable
detail as to the calculation thereof, which calculations in the
case of the fourth Fiscal Quarter in any Fiscal Year shall be
based on the preliminary unaudited financial statements of the
Company and its Subsidiaries for such Fiscal Quarter, and as
soon as practicable thereafter, in the event of any material
variance in the actual calculation of the Leverage Ratio from
such preliminary calculation, a revised Pricing Certificate
setting forth the actual calculation thereof.
11. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made (a) when delivered by hand, (b) one Business Day
after delivery to a nationally recognized courier service specifying overnight
delivery, (c) three Business Days after being deposited in the mail, certified
or registered, postage prepaid, or (d) in the case of telecopy notice, when
sent, confirmation of receipt received, addressed as follows:
(a) if to the Agent or any Lender, at its address or telecopy
number for notices provided in Section 9.2 of the Credit Agreement; and
(b) if to any Guarantor, at its address or telecopy number for
notices set forth below:
The Company
and the other
Guarantors: Safeskin Corporation
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00000 Xxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. XxXxx, Vice-President-Treasurer
Telecopy No.: (000) 000-0000
The Agent, each Lender and each Guarantor may change its address
and transmission numbers for notices by notice in the manner provided in this
Section 11.
12. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. Integration. This Guarantee and the other Operative
Agreements represents the agreement of the Guarantors with respect to the
subject matter hereof and there are no promises or representations by the Agent
or any Lender relative to the subject matter hereof not reflected herein or in
the other Operative Agreements.
14. Amendments in Writing; No Waiver; Cumulative Remedies (a)
None of the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Guarantors and the Agent as provided in Section 9.1 of the Credit Agreement.
(b) Neither the Agent nor any Lender shall not by any act (except
by a written instrument pursuant to Section 14(a) hereof), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default or in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Agent or any Lender, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Agent or any Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Agent
or such Lender would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
15. Section Headings. The section headings used in this Guarantee
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
16. Successors and Assigns. This Guarantee shall be binding upon
the successors and assigns of the Guarantors and shall inure to the benefit of
the Agent and the Lenders and their successors and assigns.
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17. SUBMISSION TO JURISDICTION; WAIVERS. (a) EACH GUARANTOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ALL LEGAL ACTIONS OR
PROCEEDINGS RELATING TO THIS GUARANTEE OR ANY OTHER OPERATIVE AGREEMENT
TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF
THE SUPREME COURT OF THE STATE OF NEW YORK, AND THE APPELLATE COURTS
THEREOF AND WAIVES THE RIGHT TO REMOVE ANY SUCH ACTION OR PROCEEDING TO
ANY FEDERAL COURT;
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT
IN SUCH COURT, WAIVES ANY OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO
THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT AND WAIVES
ANY OBJECTION THAT SUCH ACTION OR PROCEEDING IN ANY SUCH COURT WAS
BROUGHT IN AN INCONVENIENT FORUM AND AGREES NOT TO PLEAD, CLAIM OR
ASSERT THE SAME;
(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT MAY BE EFFECTED BY MAILING A COPY THEREOF
BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF
MAIL), POSTAGE PREPAID TO, OR BY PERSONAL SERVICE AT, ITS ADDRESS SET
FORTH HEREIN OR SUCH OTHER ADDRESS OF WHICH THE AGENT SHALL HAVE BEEN
NOTIFIED PURSUANT HERETO, WHETHER OR NOT SUCH ADDRESS BE WITHIN THE
JURISDICTION OF ANY SUCH COURT;
(iv) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT OF THE AGENT (AND NOT OF THIS GUARANTOR) TO XXX IN ANY OTHER
JURISDICTION; AND
(v) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING
REFERRED TO IN THIS SECTION 18 ANY SPECIAL, EXEMPLARY, OR PUNITIVE
DAMAGES.
(b) EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE OR
ANY OTHER OPERATIVE AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
(c) EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
THE RIGHT TO ASSERT, ARGUE OR RAISE, IN ANY ACTION BROUGHT BY THE AGENT OR THE
LENDERS AGAINST ANY XXXXXXXXX
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UNDER THIS GUARANTY, THAT THE AGENT AND THE LENDERS STRUCTURED THE TRANSACTION
CONTEMPLATED BY THE OPERATIVE AGREEMENTS IN SUCH A MANNER PRIMARILY TO
CIRCUMVENT THE CALIFORNIA ONE-FORM-OF-ACTION AND ANTI-DEFICIENCY LAWS, INCLUDING
CALIFORNIA CODE OF CIVIL PROCEDURE Sections 580a, 580b, 580d AND 726.
(d) Each Guarantor hereby waives all of such Guarantor's rights
of subrogation and reimbursement and any other rights and defenses available to
such Guarantor by reason of California Civil Code Sections 2787 to 2855,
inclusive, including (a) any defenses such Guarantor may have to the obligations
undertaken by such Guarantor in this Guaranty by reason of an election of
remedies by the Agent or the Lenders, and (b) any rights or defenses such
Guarantor may have by reason of protection afforded to the Borrower with respect
to the obligations guaranteed hereby pursuant to the antideficiency or other
laws of the State of California limiting or discharging the Borrower's
indebtedness, including California Code of Civil Procedure Section 580a, 580b,
580d or 726. Each Guarantor's waiver of defenses under clause (a) above is made
even though an election of remedies by the Agent or the Lenders, such as a
nonjudicial foreclosure with respect to security for a guaranteed obligation,
destroys such Guarantor's rights of subrogation and reimbursement against the
Borrower by the operation of California Code of Civil Procedure Section 580d or
otherwise. The foregoing waivers shall not be deemed a waiver of the defense
that the Guaranteed Obligations have been paid or the Commitments reduced.
(e) Each Guarantor waives all rights and defenses that such
Guarantor may have because the Guaranteed Obligations are secured by real
property. This means, among other things:
1. The Agent and the Lenders may collect from the Guarantors
without first foreclosing on any real or personal property collateral
pledged by the Borrower or any other Person.
2. If the Agent or any Lender forecloses on any real property
collateral pledged by the Borrower or any other Person:
(A) The amount of the debt may be reduced only by the
price for which that collateral is sold at the foreclosure sale, even if
the collateral is worth more than the sale price.
(B) The Agent and/or any Lender may collect from the
Guarantors even if the Agent or any Lender, by foreclosing on the real
property collateral, has destroyed any right any Guarantor may have to
collect from the Borrower or any other Person.
This is an unconditional and irrevocable waiver of any rights and
defenses the Guarantors may have because the Guaranteed Obligations are secured
by real property. These rights and defenses include, but are not limited to, any
rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California
Code of Civil Procedure.
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(f) Each Guarantor waives all rights and defenses arising out of
an election of remedies by the Agent and the Lenders, even though that election
of remedies, such as a nonjudicial foreclosure with respect to security for a
Guaranteed Obligation, has destroyed any Guarantor's rights of subrogation and
reimbursement against the principal by the operation of Section 580d of the
California Code of Civil Procedure or otherwise.
(g) Each Guarantor waives (A) all rights and defenses that are
based upon, directly or indirectly, Section 580a, 580b, 580d or 726 of the
California Code of Civil Procedure, and (B) all rights and defenses that are or
may become available to the Guarantors by reason of Sections 2787 to 2855,
inclusive, of the California Civil Code.
(h) Each Guarantor acknowledges and agrees that the waivers of
various California statutes and related provisions contained in this Guarantee
are for the added protection of the Agent and the Lenders and do not limit,
change or otherwise affect the choice of law provision contained in Section 18,
below (which choice of law provision shall be given full force and effect).
18. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
19. Authority of Agent. Each Guarantor acknowledges that the
rights and responsibilities of the Agent under this Guarantee with respect to
any action taken by the Agent or the exercise or non-exercise by the Agent of
any option, right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Guarantee shall, as between the Agent
and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Agent and each Guarantor, the Agent shall be conclusively
presumed to be acting as agent for the Lenders with full and valid authority so
to act or refrain from acting, and no Guarantor shall be under any obligation,
or entitlement, to make any inquiry respecting such authority.
20. Third Party Beneficiaries. Each Guarantor expressly
acknowledges and agrees that each Indemnified Person shall be a third party
beneficiary of this Guarantee.
21. Right of Contribution. Each Guarantor hereby agrees that to
the extent that a Guarantor shall have paid more than its proportionate share of
any payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder who has not paid its
proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 4 hereof. The provisions
of this Section shall in no respect limit the obligations and liabilities of any
Guarantor to Beneficiaries and each Guarantor shall remain liable to the
Beneficiaries for the full amount guaranteed by such Guarantor hereunder.
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IN WITNESS WHEREOF, the undersigned have caused this Guarantee to
be duly executed and delivered by their respective duly authorized officer as of
the day and year first above written.
SAFESKIN CORPORATION
By:_________________________________
Name:
Title:
SAFESKIN SCIENTIFIC CORPORATION
By:_________________________________
Name:
Title:
