Guarantee GUARANTEE
Exhibit
4.20
WHEREAS
Americana Foods Limited Partnership (the "Borrower") has
entered into a credit agreement dated as of April 21, 2006 among the Borrower,
JPMorgan Chase Bank, N.A., in its capacity as administrative agent (in such
capacity, the "Administrative Agent") for the lenders from time
to time party thereto (such lenders, together with their respective successors,
assigns and transferees (the "Lenders")), and the Lenders party
thereto (as amended from time to time, the "Credit Agreement").
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the Credit Agreement;
AND
WHEREAS the Guarantor owns a controlling interest in the Borrower and
is financially interested in the Borrower's affairs;
AND
WHEREAS it is a requirement of the Credit Agreement that the
undersigned CoolBrands International Inc. (the "Guarantor")
guarantee payment of all Secured Obligations (as hereinafter
defined);
NOW
THEREFORE for good and valuable consideration including payment to the
Guarantor of the sum of ten dollars, the receipt and sufficiency of which
are
hereby acknowledged, the Guarantor hereby agrees with the Administrative
Agent
as follows:
Section
1 Guarantee
The
Guarantor hereby unconditionally guarantees the punctual payment and performance
to the Administrative Agent, forthwith on demand by the Administrative Agent,
of
all present and future Secured Obligations. The Guarantor also guarantees
the
full, prompt and unconditional performance of all obligations and agreements
of
every kind owed or hereafter to be owed by the Borrower to the Administrative
Agent or the Lenders under the Credit Agreement and the other Loan Documents
to
which the Borrower is a party. This guarantee shall be a continuing guarantee
and shall guarantee the Secured Obligations and any ultimate balance thereof,
notwithstanding that the Borrower may from time to time satisfy the Secured
Obligations in whole or in part and thereafter incur further Secured
Obligations.
Section
2 Indemnity
In
addition to the guarantee provided in section 1, and as a separate and distinct
obligation, the Guarantor hereby agrees to indemnify and save harmless the
Administrative Agent and the Lenders, forthwith on demand by the Administrative
Agent, from and against any and all direct and indirect claims, demands,
losses,
damages, liabilities, charges, obligations, payments and expenses of any
nature
or kind, howsoever or whenever arising, which the Administrative Agent or
any
Lender or Lenders may suffer or incur in any way relating to or arising
from:
(a) the
failure of the Borrower to pay and satisfy the Secured Obligations;
or
(b) the
Secured Obligations or any agreement creating or relating to any or all Secured
Obligations in any way being or becoming for any reason whatsoever, in whole
or
in part, void, voidable, ultra xxxxx, illegal, invalid, ineffective or
otherwise unenforceable or released or discharged by operation of law or
otherwise;
provided
that any payment actually made by the Guarantor to the Administrative Agent
under section 1 shall reduce the liability of the Guarantor under this section
2
by the same amount.
Section
3 Limitation
of Liability
The
liability of the Guarantor under this agreement is unlimited.
1
Section
4
Interest after Demand
The
Guarantor shall pay to the Administrative Agent interest on all amounts owing
by
the Guarantor pursuant to this agreement accruing from the date the
Administrative Agent demands payment pursuant to this agreement at the highest
rate per annum applicable from time to time to any of the Secured Obligations.
Such interest shall be calculated and payable monthly not in advance both
before
and after judgment on the first day of each month after such
demand.
Section
5 Determination
of Liability for Future Advances
The
Secured Obligations herein guaranteed shall not include any voluntary advances
made by the Administrative Agent or any Lender to the Borrower after the
date
(the "Determination Date") which is ninety days following the
date of receipt by the Administrative Agent of written notice from the Guarantor
advising that the Guarantor shall not be responsible for such advances. As
used
herein, "voluntary advances" excludes advances made by the
Administrative Agent or any Lender to or for the benefit of the Borrower
which
the Administrative Agent or any Lender is required to make as a result of
a
commitment given prior to the Determination Date to the Borrower or another
person, including, without limitation, any payment by the Administrative
Agent
or any Lender under a letter of credit issued or a bankers' acceptance accepted
by the Administrative Agent or any Lender for the account of the Borrower.
For
greater certainty, the Secured Obligations herein guaranteed shall continue
to
include all obligations of the Borrower to the Administrative Agent and the
Lenders (and any of them) in existence on the Determination Date, including,
but
not limited to, contingent obligations of the Borrower arising under guarantees
provided by the Borrower in respect of the obligations of others, even though
such contingent obligations may mature and be payable by the Borrower after
the
Determination Date, and even though the ultimate liability of the Borrower
in
respect of such contingent obligations may exceed the Borrower's contingent
liability thereunder on the Determination Date.
Section
6 Borrower's
Status and Authority
All
monies, advances, renewals or credits in fact borrowed or obtained from the
Administrative Agent or any Lender by the Borrower or by persons purporting
to
act on behalf of the Borrower shall be deemed to form part of the Secured
Obligations, notwithstanding any lack or limitation of status or power, any
incapacity or disability of the Borrower or its directors, officers, employees
or agents, or that the Borrower may not be a legal entity or that such borrowing
or obtaining of monies, advances, renewals or credits or the execution and
delivery of any agreement or document by or on behalf of the Borrower is
in
excess of the powers of the Borrower or any of its directors, officers,
employees or agents or is in any way irregular, defective, fraudulent or
informal. The Administrative Agent and the Lenders have no obligation to
enquire
into the powers of the Borrower or any of its directors, officers, employees
or
agents acting or purporting to act on its behalf, and shall be entitled to
rely
on this provision notwithstanding any actual or imputed knowledge regarding
any
of the foregoing matters.
Section
7 Liability
Unaffected by Certain Matters
The
liability of the Guarantor hereunder shall be absolute and unconditional
irrespective of, and shall not be released, discharged, limited or otherwise
affected by:
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(a)
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the
lack of validity or enforceability of the Secured Obligations in
whole or
in part for any reason whatsoever, including without limitation
by reason
of prescription, by operation of law or as a result of any applicable
statute, law or
regulation;
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(b)
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any
prohibition or restriction imposed in respect of any rights or
remedies of
the Administrative Agent or any Lender in respect of any Secured
Obligations, including without limitation any court order which
purports
to prohibit or suspend the acceleration of the time for payment
of any
Secured Obligations, the payment by the Borrower of any Secured
Obligations or the tights or remedies of the Administrative Agent
and
Lenders (or any of them) against the Borrower in respect of any
Secured
Obligations;
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(c)
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the
lack of validity or enforceability in whole or in part of the Credit
Agreement or any other Loan
Document.
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(d)
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any
change in the corporate existence, structure, ownership or control
of the
Borrower (including any of the foregoing arising from any merger,
consolidation, amalgamation, reorganization or similar transaction);
any
change in the name, objects, capital stock, constating documents
or
by-laws of the Borrower; or the dissolution, winding-up, liquidation
or
other distribution of the assets of the Borrower, whether voluntary
or
otherwise;
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(e)
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the
Borrower's becoming insolvent or bankrupt or subject to any proceeding
under the provisions of the Bankruptcy and Insolvency Act
(Canada), the Companies' Creditors Arrangement Act (Canada), the
arrangement provisions of applicable corporate legislation, any
legislation similar to the foregoing in any other jurisdiction,
or any
legislation enacted substantially in replacement of any of the
foregoing,
or the Administrative Agent's or any Lender's voting in favour
of any
proposal, arrangement or compromise in connection with any of the
foregoing;
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(f)
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the
failure or neglect of the Administrative Agent or any Lender to
demand
payment of Secured Obligations by the Borrower, any guarantor of
Secured
Obligations or any other
person;
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(g)
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the
valuation by the Administrative Agent or any Lender of any security
held
in respect of the Secured Obligations, which shall not be considered
as a
purchase of such security or as payment on account of the Secured
Obligations;
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(h)
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any
right or alleged right of set-off, combination of accounts, counterclaim,
appropriation or application or any claim or demand that the Borrower
or
the Guarantor may have or may allege to have against the Administrative
Agent or any Lender or Lenders;
or
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(i)
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any
other circumstances which might otherwise constitute a legal or
equitable
defence available to, or complete or partial discharge of, the
Borrower in
respect of the Secured Obligations or of the Guarantor in respect
of this
agreement.
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Section
8 Liability
Unaffected by Actions of the Administrative Anent or any Lender or
Lenders
The
liability of the Guarantor hereunder shall be absolute and unconditional
irrespective of, and shall not be released, discharged, limited or otherwise
affected by anything done, suffered or permitted by the Administrative Agent
or
any Lender or Lenders in connection with the Borrower or any Secured
Obligations. For greater certainty and without limiting the generality of
the
foregoing, without releasing, discharging, limiting or otherwise affecting
in
whole or in part the liability of the Guarantor under this agreement, and
without notice to or the consent of the Guarantor, the Administrative Agent
or
any Lender or Lenders may from time to time:
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(a)
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make
advances and extend credit to the Borrower (including new loans
and credit
facilities, whether in addition to or in replacement for other
loans and
credit facilities previously established for the Borrower), convert
revolving lines of credit to non-revolving lines of credit or vice
versa,
increase or decrease the amount of credit available to the Borrower
and
receive payments in respect of the Secured
Obligations;
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(b)
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increase
the interest rates, fees and charges applicable to all or any portion
of
the Secured Obligations from time to
time;
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(c)
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amend,
renew, waive, release or terminate the Credit Agreement or any
of the
other Loan Documents or any provisions thereof in whole or in part
from
time to time (including, without limitation, any provisions relating
to
interest rates, fees, margin requirements, conditions for the extension
of
credit and the determination of the amount of credit available,
positive
and negative covenants, payment provisions, the application of
payments
received by or on behalf of the Borrower, and events of
default);
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(d)
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extend,
renew, settle, compromise, waive, release or terminate the Secured
Obligations in whole or in part from time to
time;
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(e) grant
time, renewals, extensions, indulgences, releases and discharges to the
Borrower;
(f) take,
refrain from taking or release guarantees from other persons in respect of
Secured Obligations;
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(g)
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accept
compromises or arrangements from the Borrower, any guarantor of
Secured
Obligations or any other person;
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(h)
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refrain
from demanding payment from or exercising any rights or remedies
in
respect of the Borrower or any guarantor of Secured
Obligations;
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(i)
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apply
all monies received from the Borrower, any guarantor of the Borrower
or
any other person or from the proceeds of any security to pay such
part of
the Secured Obligations as the Administrative Agent and Lenders
may see
fit, or change any such application in whole or in part from time
to time,
notwithstanding any direction which may be given regarding application
of
such monies by the Borrower, any guarantor of the Borrower or any
other
person; and
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(j)
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otherwise
deal with the Borrower, any guarantor of Secured Obligations or
any other
person and any security held by the Administrative Agent or any
Lender or
Lenders in respect of Secured Obligations, as the Administrative
Agent or
such Lender or Lenders may see fit in its or their absolute
discretion.
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Section
9 Liability
Unaffected by Failure of the Administrative Agent or any Lender or Lenders
to
Take, Hold or Enforce Security
The
Guarantor agrees that the Guarantor has provided this agreement to the
Administrative Agent on the express understanding that the Administrative
Agent
and the Lenders have no obligation to obtain any security from the Borrower
or
from others to secure payment or performance of any Secured Obligations;
and if
the Administrative Agent or any Lender in its absolute discretion obtains
any
such security from the Borrower or others, the Administrative Agent or such
Lender shall have no obligation to continue to hold such security or to enforce
such security. The Guarantor shall not be entitled to rely on or benefit
from,
directly or indirectly, any such security which the Administrative Agent
or any
Lender may obtain. In furtherance of the foregoing, the liability of the
Guarantor hereunder shall be absolute and unconditional irrespective of,
and
shall not be released, discharged, limited or otherwise affected
by:
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(a)
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the
loss of or failure by the Administrative Agent or any Lender to
register,
perfect or maintain any security given by the Borrower or by other
persons
in respect of Secured Obligations, whether intentionally or through
failure, neglect or otherwise;
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(b)
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the
failure or neglect of the Administrative Agent or any Lender to
enforce
any security held in respect of the Borrower or in respect of any
guarantor of Secured Obligations;
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(c)
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the
Administrative Agent's or any Lender's having released, discharged,
compromised or otherwise dealt with any such security in any manner
whatsoever (and for greater certainty the Administrative Agent
and Lender
shall not be bound to exhaust its or their recourse against the
Borrower,
guarantors of the Borrower or other persons or enforce any security
held
in respect of Secured Obligations or take any other action or legal
proceeding before being entitled to payment from the Guarantor
under this
agreement, and the Guarantor hereby waives all benefits of discussion
and
division); or
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(d)
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the
enforcement by the Administrative Agent or any Lender of any such
security
in an improvident or commercially unreasonable manner (including
the sale
or other disposition of any assets encumbered by such security
at less
than the fair market value thereof) whether as a result of negligence,
recklessness or wilful action or inaction on the part of the
Administrative Agent or any Lender or otherwise, and regardless
of any
duty which the Administrative Agent or any Lender might have to
the
Borrower under applicable law (including applicable personal property
security legislation) in respect of the enforcement of any such
security.
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Section
10 Accounts
Settled
The
records of the Administrative Agent as to the unpaid balance of the Secured
Obligations due at any time shall constitute prima facie evidence that the
said
amount is so due.
Section
11 Waivers
No
delay on the part of the Administrative Agent or any Lender in exercising
any of
its options, powers, rights or remedies, or any partial or single exercise
thereof, shall constitute a waiver thereof. No waiver, modification or amendment
of this agreement or of any such options, powers, rights or remedies shall
be
deemed to have been made unless made in writing and signed by an authorized
officer of the Administrative Agent, and any such waiver shall apply only
with
respect to the specific instance involved, and shall not impair the rights
of'
the Administrative Agent or the liability of the Guarantor hereunder in any
other respect or at any other time.
4
Section
12 Foreign
Currency Obligations
The
Guarantor shall make payment to the Administrative Agent hereunder in the
same
currency as is required to be paid by the Borrower to the Administrative
Agent
in respect of the Secured Obligations (the "Required
Currency"). If the Guarantor makes payment to the Administrative Agent
hereunder in any other currency (the "Payment Currency"), such
payment shall constitute satisfaction of the said liability of the Guarantor
hereunder only to the extent that the Administrative Agent is able to purchase
Required Currency with the amount of the Payment Currency received from the
Guarantor on the date of receipt, in accordance with the Administrative Agent's
normal practice; and the Guarantor shall remain liable for any deficiency
together with interest thereon payable pursuant to section 4.
Section
13 Withholding
Taxes
Except
as otherwise required by law, each payment by the Guarantor hereunder shall
be
made without withholding for or on account of any present or future tax imposed
by or within the jurisdiction in which the Guarantor is domiciled, any
jurisdiction from which the Guarantor makes any payment or any other
jurisdiction, or (in each case) any political subdivision or taxing authority
thereof or therein. If any such withholding is required by law, the Guarantor
shall make the withholding, pay the amount withheld to the appropriate
governmental authority before penalties attach thereto or interest accrues
thereon and forthwith pay to the Administrative Agent such additional amount
as
may be necessary to ensure that the net amount actually received by the
Administrative Agent (after payment of such taxes including any taxes on
such
additional amount paid) is equivalent to the amount which the Administrative
Agent would have received if no amounts had been withheld.
Section
14 Representations,
Warranties and Covenants
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(1)
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The
Guarantor represents and warrants to the Administrative Agent as
follows,
and acknowledges that each of the Administrative Agent and Lenders
is
relying on such representations and warranties as a basis for extending
and maintaining the extension of credit to the
Borrower:
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(a)
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the
Guarantor is duly incorporated and existing under the laws of its
jurisdiction of incorporation; it has full corporate power, authority
and
capacity to enter into and perform its obligations hereunder; all
necessary action has been taken by its directors or shareholders
and
otherwise to authorize the execution and delivery of this agreement
and
the performance of its obligations hereunder; the Guarantor has,
to the
extent required by law, disclosed to its shareholders all information
required with respect to the delivery of this agreement; there
is no
provision in any unanimous shareholder agreement which restricts
or limits
its powers to enter into or perform its obligations under this
agreement;
and none of the execution or delivery of this agreement, or compliance
with the provisions of this agreement conflicts with, or results
in a
breach of its charter documents or by-laws;
and
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(b)
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none
of the execution or delivery of this agreement, or compliance by
the
Guarantor with the provisions of this agreement conflicts with
or results
in a breach of any agreement or instrument to which the Guarantor
is a
party or by which the Guarantor or any of the Guarantor's assets
are bound
or affected, or requires the consent of any other person (other
than any
consents which have been obtained);
and
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(c)
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each
of the representations and warranties made by the Guarantor in
that
certain Credit Agreement dated as of April 21, 2006 between JPMorgan
Chase
Bank, N.A., Integrated Brands Inc., Eskimo Pie Frozen Distribution,
Inc.,
Eskimo Pie Corporation, CoolBrands Dairy, Inc. and the lenders
party
thereto (the "Integrated Credit Agreement") are incorporated herein,
mutatis mutandis, shall survive the termination of the Integrated
Credit Agreement and be deemed to continue to be a part of this
agreement
as if fully set out herein notwithstanding the termination of the
Integrated Credit Agreement.
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(2)
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The
Guarantor covenants and agrees that it will fully comply and will
cause
each of its Subsidiaries (as such term is defined in the Credit
Agreement)
to fully comply with each of the covenants set out in Articles
V and VI of
each of (i) the Credit Agreement and (ii) the Integrated Credit
Agreement,
and such covenants are hereby incorporated herein, mutatis
mutandis, which covenants hereunder shall survive the termination
of
the Integrated Credit Agreement and be deemed to continue to be
a part of
this agreement as if fully set out herein notwithstanding the termination
(Stile Integrated Credit
Agreement.
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Section
15 Revival
of Indebtedness and Liability
If
at any time all or any part of any payment previously applied by the
Administrative Agent or any Lender to any portion of the Secured Obligations
is
rescinded or returned by the Administrative Agent or any Lender for any reason
whatsoever, whether voluntarily or involuntarily (including, without limitation,
as a result of or in connection with the insolvency, bankruptcy or
reorganization of the Borrower or the Guarantor, or any allegation that the
Administrative Agent or any Lender received a payment in the nature of a
preference), then to the extent that such payment is rescinded or returned,
such
portion of the Secured Obligations shall be deemed to have continued in
existence notwithstanding such initial application, and this agreement shall
continue to be effective or be reinstated, as the case may be, as to such
portion of the Secured Obligations as though such payment had not been
made.
Section
16 Postponement
of Indebtedness and Subordination of Security
Payment
of all present and future indebtedness, liabilities and obligations of the
Borrower to the Guarantor (the "Postponed Indebtedness") is
hereby postponed to payment and performance of all Secured Obligations. The
Guarantor agrees that the Guarantor shall not, except to the extent consented
to
by the Administrative Agent in writing, receive any payment of principal,
interest or any other amount in respect of any Postponed Indebtedness until
all
Secured Obligations have been paid and satisfied in full. If any portion
of the
Postponed Indebtedness is paid in contravention of this agreement, the Guarantor
shall hold such amount in trust for the Administrative Agent and immediately
pay
such amount to the Administrative Agent. If the Guarantor now or in the future
holds any security for payment of any Postponed Indebtedness (the
"Postponed Security"), the Postponed Security and the security
interests constituted thereby are hereby postponed and subordinated to all
present and future security and security interests held by the Administrative
Agent or any Lender or Lenders in respect of any Secured Obligations,
notwithstanding the order of execution, delivery, registration or perfection
of
such security or security interests, the order of advancement of funds, the
order of crystallization of security, or any other matter which may affect
the
relative priorities of such security or security interests. The Guarantor
shall
not initiate or take any action to enforce the Postponed Security without
the
prior written consent of the Administrative Agent. The Guarantor shall, promptly
at the Administrative Agent's request, deliver to the Administrative Agent,
in
form and substance satisfactory to the Administrative Agent, an assignment
by
the Guarantor to the Administrative Agent of all Postponed Indebtedness and
Postponed Security as security for the Guarantor's obligations to the
Administrative Agent pursuant to this agreement.
Section
17 Restrictions
on Right of Subrogation
The
Guarantor agrees not to exercise or enforce any right of indemnity, exoneration,
contribution, reimbursement, recourse or subrogation against the Borrower
or any
other guarantor of Secured Obligations, or as to any security therefor, unless
and until all Secured Obligations have been paid and satisfied in full and
the
Administrative Agent and the Lenders have no further obligation to extend
credit
to the Borrower. The Guarantor shall have no right to be subrogated hereunder
unless:
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(a)
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the
Guarantor has paid to the Administrative Agent an amount equivalent
to all
Secured Obligations together with all interest, expenses and other
amounts
due hereunder;
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(b)
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any
other person having a potential right of subrogation has waived
such right
and consented to the assignment by the Administrative Agent to
the
Guarantor of the Secured Obligations and any security held by the
Administrative Agent;
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(c)
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the
Administrative Agent has received from the Borrower a release of
all
claims which the Borrower may have against the Administrative Agent
and
the Lenders, including any obligation to grant additional credit
to the
Borrower;
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(d)
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the
Guarantor has executed and delivered to the Administrative Agent
a release
of any claims which the Guarantor may have against the Administrative
Agent and the Lenders in respect of the Secured Obligations or
this
agreement; and
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(e)
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if
required by the Administrative Agent, three months shall have elapsed
from
the time of the last payment made by the Borrower to the Administrative
Agent and the last payment made by the Guarantor to the Administrative
Agent hereunder.
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The
Guarantor shall cause all such documents to be in form and substance
satisfactory to the Administrative Agent. Any such assignment of loans and
security by the Administrative Agent to the Guarantor shall be on an "as
is, where is" basis without representations, warranties or conditions,
and without recourse to the Administrative Agent or any Lender.
Section
18
Interest Act (Canada) Eauivalencv
For
the purpose of complying with the Interest Act (Canada), it is
expressly stated that:
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(i)
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where
interest is calculated pursuant hereto at a rate based on a 360
day
period, the yearly rate or percentage of interest to which such
rate is
equivalent is such rate multiplied by the actual number of days
in the
year (365 or 366, as the case may be) divided by 360;
and
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(ii)
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the
rates of interest and other rates specified in this agreement and
the
Credit Agreement are nominal rates and not effective rates or yields
and
the parties hereto acknowledge that there is a material distinction
between the nominal and effective rates of interest, that they
are capable
of making the calculations necessary to compare such rates and
that the
principle of deemed reinvestment of interest shall not apply to
any
calculations of interest
hereunder.
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Section
19 Expenses
The
Guarantor agrees to pay to the Administrative Agent, forthwith on demand
by the
Administrative Agent, all expenses (including legal fees on a full indemnity
basis) incurred by the Administrative Agent or any Lender in connection with
the
preservation or enforcement of any of the its rights and remedies hereunder,
together with interest thereon calculated and compounded at the rate provided
in
section 4.
Section
20 Additional
Guarantee
This
agreement is in addition to and not in substitution for any other guarantees
or
agreements which may have previously been given to the Administrative Agent
or
any Lender or Lenders by the Guarantor in connection with the Borrower or
any
Secured Obligations, and is in addition to and without prejudice to any security
or guarantee now or hereafter held by the Administrative Agent or any Lender
or
Lenders in respect of any Secured Obligations, and any other rights or remedies
which the Administrative Agent or any Lender or Lenders might have.
Section
21 Combination
of Accounts and Set-Off
The
Administrative Agent or any Lender may from time to time combine accounts
and
set off and apply any liabilities it may have to the Guarantor (including
liabilities in respect of any monies deposited by the Guarantor with the
Administrative Agent or any Lender) against any and all of the obligations
of
the Guarantor to the Administrative Agent or any Lender now or hereafter
existing under this agreement, whether or not the Administrative Agent or
any
Lender has made any demand hereunder and whether or not any of such obligations
may be unliquidated, contingent or unmatured.
7
Section
22
Notice
Without
prejudice to any other method of giving notice, all communications provided
for
or permitted hereunder shall be in writing and given as provided for in the
Credit Agreement (with respect to the Guarantor, to the address set forth
on the
signature page hereto).
Section
23 Severability
If
any provision of this agreement shall be invalid or unenforceable, all other
provisions hereof shall remain in full force and effect and all changes rendered
necessary by the context shall be deemed to have been made.
Section
24 Interpretation
This
agreement shall be construed as if all changes in grammar, number and gender
rendered necessary by the context have been made. As used in this agreement,
"person" includes an individual, corporation, partnership,
joint venture, trust, unincorporated association or any government, crown
corporation or governmental agency or authority or any combination of the
foregoing.
Section
25 Merger
of Borrower
In
this agreement, "Merger" in respect of two or more corporations
means an amalgamation of such corporations, the transfer of the assets of
one
corporation to another in connection the dissolution of the first-mentioned
corporation, the transfer of substantially all of the businesses and assets
of
one corporation to another pursuant to plan of arrangement or court order,
or
any other corporate reorganization or transaction with similar effect to
any of
the foregoing; the corporations involved in a Merger are herein referred
to as
the "Merging Entities"; and the corporation resulting from a
Merger is herein referred to as the "Merged Entity". If the
Borrower effects a Merger with any other corporation or corporations, the
Guarantor agrees that the Secured Obligations shall include:
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(a)
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all
obligations of each Merging Entity to the Administrative Agent
and Lenders
(and to any one or more of them) in existence at the time of such
Merger;
and
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(b)
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all
obligations of the Merged Entity to the Administrative Agent and
Lenders
(and to any one or more of them) at the time of such merger or
incurred or
arising from time to time after such
Merger.
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After
such Merger, all references herein to the "Borrower" shall mean
the Merged Entity, and all other provisions of this agreement shall be deemed
to
have been amended to the extent required by the context in order to reflect
such
Merger.
Section
26 Further
Assurances
The
Guarantor agrees, at the Guarantor's own expense, to promptly execute and
deliver or cause to be executed and delivered to the Administrative Agent,
upon
the Administrative Agent's request from time. to time, all such other and
further documents, agreements, opinions, certificates and instruments as
are
required under this agreement or as may be reasonably requested by the
Administrative Agent if necessary or desirable to more fully record or evidence
the obligations intended to be entered into herein.
Section
27 Entire
agreement Amendments; Conclusive Delivery,
This
agreement constitutes the entire agreement between the Guarantor and the
Administrative Agent and Lenders relating to the subject matter hereof, and
no
amendment of this agreement shall be effective unless made in writing and
executed by the Guarantor and the Administrative Agent. Possession by the
Administrative Agent of an original executed copy of this agreement shall
constitute conclusive evidence that:
8
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(a)
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this
agreement was executed and delivered by the Guarantor to the
Administrative Agent free of all
conditions;
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(b)
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there
is no agreement or understanding between the Administrative Agent
and
Lenders (or any of them) and the Guarantor that this agreement
was
delivered in escrow or is not intended to be effective until the
occurrence of any event or the satisfaction of any
condition;
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(c)
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the
Administrative Agent and Lenders have not made any representation,
warranty, statement or promise to the Guarantor regarding the Borrower,
the intention of the Administrative Agent or any Lender to obtain
any
security in respect of Secured Obligations or guarantees from other
persons in respect of Secured Obligations, the circumstances under
which
the Administrative Agent or any Lender may enforce this agreement,
the
manner in which the Administrative Agent or any Lender might enforce
this
agreement or any other matter which might conflict with any provision
expressly set out herein; and
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(d)
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there
is no representation, warranty, statement, promise, understanding,
condition or collateral agreement between the Administrative Agent
and
Lenders (or any one of them) and the Guarantor relating to this
agreement
or the subject matter of this agreement, other than as expressly
set out
herein.
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Section
28 Governing
Law
This
agreement shall be governed by and construed in accordance with the laws
of the
Province of Ontario and the laws of Canada applicable therein. Without prejudice
to the right of the Administrative Agent to commence any proceedings with
respect to this agreement in any other proper jurisdiction, the Guarantor
hereby
irrevocably attorns and submits to the non-exclusive jurisdiction of the
courts
of the Province of Ontario.
Section
29 Successors
and Assigns
This
agreement shall enure to the benefit of the Administrative Agent and the
Lenders
and their respective successors and assigns, and shall be binding on the
Guarantor and its successors and assigns; "successors" includes
any Merged Entity resulting from the Merger of a corporation with any other
corporation and includes the Guarantor as it may be continued from its existing
jurisdiction of incorporation to any other jurisdiction (whether provincial
or
federal). Without limiting the generality of the foregoing, if the
Administrative Agent or a Lender assigns or transfers all or any portion
of the
Secured Obligations and this agreement or any interest therein to any other
person, such person shall thereafter be entitled to the benefit of this
agreement to the extent of the interest so transferred or assigned, and the
Secured Obligations or portion thereof or interest therein so transferred
or
assigned shall be and shall remain part of the "Secured Obligations"
hereunder.
Section
30 Legal
Advice
The
Guarantor acknowledges that the Guarantor has had ample opportunity to review
and consider this agreement, fully understands the provisions hereof and
has
received legal advice from the Guarantor's solicitors in connection with
this
agreement.
Section
31 Receipt
of Copy of agreement
The
Guarantor hereby acknowledges receipt of a copy of this agreement.
IN
WITNESS WHEREOF this agreement has been executed and delivered by the
Guarantor this 21St day of April, 2006.
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By:
______________________________________________________________
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Name:
Xxxxx
X. Xxxxx
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Title: Chief
Financial Officer
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Guarantor’s
Address for Service:
0000
Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxxx
Fax
no. 000-000-0000
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