EXHIBIT 4.2
GUARANTY AGREEMENT
GUARANTY, dated as of March 5, 2003 ("Guaranty"), made by each of the
corporations that are signatories hereto (the "Guarantors"), in favor of the
holders of the Notes (as hereafter defined) from time to time (the
"Noteholders") parties to the Note Purchase Agreement (as hereafter defined).
WITNESSETH:
WHEREAS, Tecumseh Products Company (the "Company"), a Michigan
corporation, is a party to that certain Note Purchase Agreement, dated as of
March 5, 2003 (as the same may be amended, supplemented or otherwise modified
from time to time, the "Note Purchase Agreement") between the Company and the
Noteholders;
WHEREAS, pursuant to the terms of the Note Purchase Agreement, the
Noteholders severally agreed to purchase $300,000,000 aggregate principal amount
of the Company's 4.66% Senior Guaranteed Notes due March 5, 2011 (the "Notes");
WHEREAS, the Company owns, directly or indirectly, all of the issued
and outstanding capital stock of each Guarantor;
WHEREAS, the Company and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the issuance and sale of the Notes by the Company; and
WHEREAS, under the Note Purchase Agreement, the obligation of the
Noteholders to purchase the Notes of the Company on the date hereof is
conditioned upon, among other things, the execution and delivery by the
Guarantors of this Guaranty;
NOW, THEREFORE, in consideration of the premises and to induce the
Noteholders to enter into the Note Purchase Agreement and to make their
respective purchases of Notes from the Company under the Note Purchase
Agreement, the Guarantors hereby, jointly and severally, agree with and for the
benefit of the Noteholders as follows:
SECTION 1. DEFINED TERMS.
As used in this Guaranty, terms defined in the Note Purchase Agreement
or in the preamble or recitals hereto are used herein as therein defined, and
the following terms shall have the following meanings:
"Obligations" shall mean the unpaid principal amount of, Make-Whole
Amount, if any, and interest on (including interest accruing on or after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Company, whether or not a
claim for such post-filing or post-petition interest is allowed), the Notes and
all other obligations and liabilities of the Company to the Noteholders, whether
direct
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or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, the
Note Purchase Agreement, the Notes and any other document executed and delivered
or given in connection therewith or herewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all reasonable fees and disbursements of counsel
to the Noteholders that are required to be paid by the Company or the Guarantors
pursuant to the terms of the Note Purchase Agreement or any other document
executed and delivered or given in connection therewith or herewith).
SECTION 2. GUARANTY.
(a) Each Guarantor hereby, jointly and severally, absolutely,
unconditionally and irrevocably, guarantees to each Noteholder and their
respective successors, transferees and assigns, the prompt and complete payment
and performance by the Company when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations, and each of the Guarantors
further agrees to pay any and all expenses (including, without limitation, all
reasonable fees and disbursements of counsel) which may be paid or incurred by
any Noteholder in enforcing, any rights with respect to, or collecting, any or
all of the Obligations and/or enforcing any rights with respect to, or
collecting against, the Guarantors under this Guaranty.
(b) Anything herein or in the Note Purchase Agreement or the Notes to
the contrary notwithstanding, the maximum liability of each Guarantor hereunder
and under the Note Purchase Agreement and the Notes 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.
(c) To the extent any of the Guarantors makes a payment hereunder in
excess of the aggregate amount of the benefit received by such Guarantor of the
issuance of the Notes under the Note Purchase Agreement (the "Benefit Amount"),
then such Guarantor, after the payment in full in cash of all of the
Obligations, shall be entitled to recover from each other Guarantor such excess
payment, pro rata in accordance with the ratio of the Benefit Amount received by
such other Guarantor to the total Benefit Amounts received by each of the
Guarantors and the right to such recovery shall be deemed to be an asset and
property of such Guarantor so funding; provided that all such rights to recovery
shall be subordinate and junior in right of payment to the final and
indefeasible repayment in full in cash of all of the Obligations.
(d) Each Guarantor agrees that the Obligations may at any time and from
time to time exceed the amount of the liability of such Guarantor hereunder
without impairing this Guaranty or affecting the rights of any Noteholder
hereunder.
(e) No payment or payments made by any of the Company, the Guarantors,
any other guarantor or any other Person or received or collected by any
Noteholder from the Company, 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 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
Obligations or payments received
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or collected from such Guarantor in respect of the Obligations, remain liable
for the Obligations up to the maximum liability of such Guarantor hereunder
until the Obligations are paid in full.
(f) Each Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to any Noteholder on account of its liability
hereunder, it will notify such Noteholder in writing that such payment is made
under this Guaranty for such purpose.
SECTION 3. RIGHT OF SET-OFF.
Upon the occurrence of any Event of Default under the Note Purchase
Agreement, as a result of which the Notes have become due and payable,
automatically or by declaration as provided in the Note Purchase Agreement, each
Guarantor hereby irrevocably authorizes each Noteholder at any time and from
time to time without notice to such Guarantor or any other guarantor, any such
notice being expressly waived by each Guarantor, to set off and appropriate and
apply any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Noteholder to or for the
credit or the account of the Guarantor, or any part thereof in such amounts as
such Noteholder may elect, against and on account of the obligations and
liabilities of such Guarantor to such Noteholder hereunder and claims of every
nature and description of such Noteholder against such Guarantor, in any
currency, whether arising hereunder, under the Note Purchase Agreement, the
Notes or otherwise, as such Noteholder may elect, whether or not any Noteholder
has made any demand for payment and although such obligations, liabilities and
claims may be contingent or unmatured. Each Noteholder agrees to notify such
Guarantor promptly of any such set-off and the application made by such
Noteholder, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Noteholder under
this paragraph are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Noteholder may have.
SECTION 4. NO SUBROGATION.
Notwithstanding any payment or payments made by any of the Guarantors
hereunder or any set-off or application of funds of any of the Guarantors by any
Noteholder, no Guarantor shall, until all amounts owing to the Noteholders by
the Company on account of the Obligations are irrevocably paid in full, be
entitled to be subrogated to any of the rights of any Noteholder against the
Company or any other Guarantor or any collateral security or guarantee or right
of offset held by any Noteholder for the payment of the Obligations, nor shall
any Guarantor seek or be entitled to seek any contribution or reimbursement from
the Company or any other Guarantor in respect of payments made by such Guarantor
hereunder, and any such rights of subrogation and reimbursement of the
Guarantors are hereby waived until such time. If any amount shall be paid to any
Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the Noteholders, segregated from other funds of such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over
to the Noteholders in the exact form received by such Guarantor (duly indorsed
by such Guarantor to the Noteholders, if required), to be applied
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against the Obligations, whether matured or unmatured, in such order as the
Noteholders may determine.
SECTION 5. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS; WAIVER OF RIGHTS.
Each Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Guarantor and without notice to or
further assent by any Guarantor, any demand for payment of any of the
Obligations made by any Noteholder may be rescinded by such party and any of the
Obligations continued, and the 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 any Noteholder and the Note Purchase Agreement, the
Notes and any other collateral security document or other guarantee or document
in connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as any Noteholder may deem advisable from time to time
(subject to Section 17 of the Note Purchase Agreement), and any collateral
security, guarantee or right of offset at any time held by any Noteholder for
the payment of the Obligations may be sold, exchanged, waived, surrendered or
released. No Noteholder shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
this Guaranty or any property subject thereto. When making any demand hereunder
against any particular Guarantor, any Noteholder may, but shall be under no
obligation to, make a similar demand on any other Guarantor and any failure by
any Noteholder to make any such demand or to collect any payments from any such
other Guarantor or any release of any such other Guarantor shall not relieve
such Guarantor in respect of which a demand or collection is not made or any of
the Guarantors not so released of their several obligations or liabilities
hereunder, and shall not impair or affect the rights and remedies, express or
implied, or as a matter of law, of any Noteholder against any of the Guarantors.
For the purposes hereof, "demand" shall include the commencement and continuance
of any legal proceedings.
SECTION 6. OBLIGATION UNCONDITIONAL.
Each Guarantor assents to all the terms, covenants and conditions of
the Notes and the Note Purchase Agreement, and irrevocably waives presentation,
demand for payment, or protest, of any of the Obligations, any and all notice of
any such presentation, demand or protest, notice of any Default or Event of
Default under the Note Purchase Agreement or Notes, notice of acceptance of this
Guaranty or of the terms and provisions thereof by any Noteholder, any
requirement of diligence or promptness on the part of any Noteholder in the
enforcement of rights under the provisions hereof, of the Obligations, of the
Note Purchase Agreement or of the Notes. This is a guarantee of payment and
performance and the Guarantors hereby waive, to the fullest extent permitted by
law, any right to require any Noteholder to proceed first against the Company or
resort first to any direct or indirect security for the Obligations or for this
Guaranty or any other remedy. This Guaranty, and every part hereof, shall be
binding upon each Guarantor, its successors and assigns, and shall inure to the
benefit of the Noteholders so long as any Obligations remain outstanding and
unpaid, and the obligations of each Guarantor hereunder shall be unconditional
irrespective of the genuineness, validity, regularity or enforceability of the
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Note Purchase Agreement or of the Notes or of any of the Obligations or of any
other circumstance which might otherwise constitute a legal or equitable
discharge of a surety or guarantor. The obligations of the Guarantors hereunder
shall not be affected by:
(a) the recovery of any judgment against the Company, or by
the levy of any writ or process of execution under any such judgment,
or by any action or proceeding taken by any Noteholder, either under
the Notes or under the Note Purchase Agreement for the enforcement
thereof, or hereof, or in the exercise of any right or power given or
conferred thereby, or hereby; or
(b) any delay, failure or omission upon the part of any
Noteholder to enforce any of the rights or powers given or conferred
hereby or by the Note Purchase Agreement, or by any delay, failure or
omission upon the part of any Noteholder to enforce any right of any
Noteholder against the Company, or by any action by any Noteholder in
granting indulgence to the Company, or in waiving or acquiescing in any
Default or Event of Default upon the part of the Company under the
Notes or under the Note Purchase Agreement; or
(c) the consolidation or merger of the Company with or into
any other corporation or corporations or any sale, lease or other
disposition of the Company's properties as an entirety or substantially
as an entirety to any other corporation; or
(d) the power or authority or the lack of power or authority
of the Company or any Guarantor, as the case may be, to issue the Notes
or to execute and deliver the Note Purchase Agreement or this Guaranty
or the validity, regularity or enforceability of the Obligations, the
Notes, the Note Purchase Agreement or this Guaranty or any other of the
terms thereof, including specifically, but without limitation, the
continuance of any obligation on the part of the Company or any
Guarantor, as the case may be, on the Obligations, the Notes or under
the Note Purchase Agreement or this Guaranty or the authority of the
Company or any Guarantor, as the case may be, to issue the Notes or
execute and deliver the Note Purchase Agreement or this Guaranty or the
existence or continuance of the Company or any Guarantor, as the case
may be, as a legal entity; or
(e) any failure or lack of diligence in collection or
protection, failure in presentment or demand for payment, protest,
notice of protest, notice of default and of nonpayment, failure to give
notice of failure of the Company or, any Guarantor, as the case may be,
to keep and perform any covenant or agreement under the terms of the
Notes, the Note Purchase Agreement or this Guaranty, or failure to
resort for payment to the Company or any Guarantor, as the case may be,
or to any other guaranty or to any property, security, liens or other
rights or remedies (the Guarantors hereby expressly waiving all of the
foregoing); or
(f) the acceptance of any additional security or other
guaranty, the advance of additional money to the Company or any
Guarantor as the case may be, the renewal, replacement or extension of
the Obligations, or amendments, modifications, consents or waivers with
respect to the Obligations, the Notes, the Note Purchase Agreement or
this
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Guaranty, or the sale, release, substitution or exchange or
modification of any other security for the Obligations (the Guarantors
hereby expressly consenting to all of the foregoing); or
(g) any defense whatsoever that the Company or any Guarantor,
as the case may be, might have to the payment of the Obligations other
than payment thereof, or to the performance or observance of any of the
provisions of the Note Purchase Agreement, the Notes or this Guaranty;
or
(h) any act or failure to act with regard to the Obligations,
Notes, the Note Purchase Agreement or this Guaranty or anything which
might vary the risk of any Guarantor; or
(i) the bankruptcy, reorganization, arrangement, insolvency,
dissolution or liquidation of the Company or any Guarantor, as the case
may be; or
(j) any change in the time, manner or place of payment of, or
in any other terms of, any of the Obligations, the Notes, the Note
Purchase Agreement or this Guaranty;
it being the purpose and intent of this Guaranty that the obligations of each
Guarantor shall be irrevocable, absolute and unconditional and joint and several
and shall not be discharged or impaired except by the indefeasible payment of
all Obligations and this Guaranty and whenever the same shall become due and
payable as provided in the Notes, the Note Purchase Agreement and this Guaranty,
and at the place specified in and all in the manner and with the effect provided
in the Notes, the Note Purchase Agreement and this Guaranty.
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any Obligations or this Guaranty is
rescinded or must otherwise be returned by the Noteholders upon the insolvency,
bankruptcy or reorganization of the Company or any Guarantor, as the case may
be, or otherwise, all as though such payment had not been made.
The obligations of each Guarantor hereunder shall in no way be affected
or impaired by any acceptance by the Noteholders of any direct or indirect
security for, or other guaranties of, any of the Obligations or this Guaranty or
by any failure, delay, neglect or omission by the Noteholders to realize upon or
protect any of the Obligations or other instruments evidencing the obligations
under the Note Purchase Agreement or this Guaranty or any direct or indirect
security therefor or by any approval, consent, waiver, or other action taken, or
omitted to be taken, by the Noteholders.
The obligations of each Guarantor under this Guaranty and the rights of
the Noteholders to enforce such obligations by any proceedings, whether by
action at law, suit in equity or otherwise, shall not be subject to any
reduction, limitation, impairment or termination, whether by reason of any claim
of any character whatsoever or otherwise, including, without limitation, claims
of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense, set-off, counterclaim, recoupment or termination
whatsoever.
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SECTION 7. REINSTATEMENT.
This Guaranty shall continue to be effective, or be reinstated, as the
case may be, if at any time payment, or any part thereof, of the Obligations is
rescinded or must otherwise be restored or returned by any Noteholder upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Company or of any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Company or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
SECTION 8. PAYMENTS.
Each Guarantor hereby guarantees that payments hereunder will be paid
in U.S. Dollars to each Noteholder in accordance with the payment provisions set
forth in Section 14 of the Note Purchase Agreement without set-off or
counterclaim.
SECTION 9. REPRESENTATIONS AND WARRANTIES.
Each Guarantor hereby represents and warrants that:
(a) it is a corporation (or limited liability company, as the
case may be) duly organized, validly existing and in good standing
(where applicable) under the laws of the jurisdiction of its
organization and has the corporate (or limited liability company, as
the case may be) power and authority and the legal right to own and
operate its property, to lease the property it operates and to conduct
the business in which it is currently engaged, except where the failure
to have such power, authority or right could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect;
(b) it is duly qualified as a foreign corporation (or limited
liability company, as the case may be) and in good standing (where
applicable) under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct or proposed conduct of
its business requires such qualification and is in compliance with all
statutes and other rules and regulations of any Governmental Authority
applicable to such Guarantor except to the extent that the failure to
be so qualified could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect;
(c) it has the corporate (or limited liability company, as
the case may be) power and authority and the legal right to execute and
deliver, and to perform its obligations under, this Guaranty, and has
taken all necessary corporate (or limited liability company, as the
case may be) action to authorize the execution, delivery and
performance of this Guaranty;
(d) it is a direct or indirect Subsidiary of the Company;
(e) no consent, license, permit, approval or authorization
of, or filing with, or notice or report to, or registration, filing or
declaration with, or other act by or in respect
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of, any arbitrator or Governmental Authority and no consent of any
other Person (including, without limitation, any stockholder or
creditor of such Guarantor), is required in connection with the
execution, delivery, performance, validity or enforceability by or
against any Guarantor of this Guaranty other than consents that have
been obtained or as to which the failure to obtain could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect;
(f) this Guaranty has been duly executed and delivered on
behalf of such Guarantor and this Guaranty constitutes a legal, valid
and binding obligation of such Guarantor enforceable against such
Guarantor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity;
(g) the execution, delivery and performance of this Guaranty
do not and (a) will not violate any statute or other rule or regulation
of any Governmental Authority applicable to such Guarantor or any
material indenture, mortgage, deed of trust, loan, purchase or credit
agreement, lease, corporate charter or by-laws, or any other agreement
or instrument to which any Guarantor is bound or by which any Guarantor
or any of its properties may be bound, in any manner which,
individually or in the aggregate, (i) could reasonably be expected to
have a Material Adverse Effect on the ability of the Company and their
respective Subsidiaries to perform their obligations hereunder or under
the Note Purchase Agreement or the Notes, (ii) would give rise to any
liability on the part of any Noteholder, or (iii) could reasonably be
expected to have a Material Adverse Effect, and (b) will not result in
the creation or imposition of any Lien on any of its properties or
assets pursuant to the Certificate of Incorporation and By-Laws or
other organizational or governing documents of such Guarantor, and any
law, treaty, rule or regulation or determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or
binding upon such Guarantor or any of its property or to which such
Guarantor or any of its property is subject, or any material provision
of any security issued by such Guarantor or of any material agreement,
instrument or other undertaking to which such Guarantor is a party or
by which it or any of its property is bound.
(h) no litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of such Guarantor, threatened by or against such Guarantor or
against any of its properties or revenues (i) with respect to this
Guaranty or any of the transactions contemplated hereby or thereby or
(ii) which could, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect on the ability of the
Company to perform its obligations under the Note Purchase Agreement or
Notes;
(i) such Guarantor has filed or caused to be filed all tax
returns required to be filed by it, and has paid all taxes shown to be
due and payable on said returns or on any assessments made against it
(other than (a) those the amount or validity of which is currently
being contested in good faith by appropriate proceedings for which
adequate
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reserves have been provided on its books in accordance with GAAP and
(b) those which, individually or in the aggregate, are not Material);
and
(j) This Guaranty ranks equally and ratably with all
unsecured and unsubordinated obligations such Guarantor generally, but
subject to the right of any Person having secured or preferred rights,
whether such rights arise by contract, statute, law (or the operation
thereof) or otherwise.
Each Guarantor agrees that the foregoing representations and warranties shall be
deemed to have been made by each Guarantor on the date of Closing.
SECTION 10. COVENANTS.
Each Guarantor hereby covenants and agrees with the Noteholders that,
from and after the date of this Guaranty until the Obligations are paid in full,
each Guarantor will comply with provisions of Sections 9 and 10 of the Note
Purchase Agreement to the extent such provisions apply to such Guarantor.
SECTION 11. SEVERABILITY.
Any provision of this Guaranty 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.
SECTION 12. SECTION HEADINGS.
The section headings used in this Guaranty are for convenience of
reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
SECTION 13. NO WAIVER; CUMULATIVE REMEDIES.
No Noteholder shall by any act (except by a written instrument pursuant
to Section 14 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 under the Note Purchase Agreement or the Notes 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 any Noteholder, 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 any Noteholder of any right or remedy hereunder on any one occasion
shall not (unless such waiver so provides) be construed as a bar to any right or
remedy which such Noteholder would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
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SECTION 14. INTEGRATION; WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS;
GOVERNING LAW.
This Guaranty represents the entire agreement of each Guarantor with
respect to the subject matter hereof and there are no promises or
representations by any Noteholder relative to the subject matter hereof not
reflected herein or in the Note Purchase Agreement or the Notes. None of the
terms or provisions of this Guaranty may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by each Guarantor and
each of the Noteholders. This Guaranty shall be binding upon the successors and
assigns of each Guarantor and shall inure to the benefit of the Noteholders and
their respective successors and assigns. THIS GUARANTY SHALL BE GOVERNED BY, AND
BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
MICHIGAN.
SECTION 15. NOTICES.
All notices, requests and demands to or upon each Guarantor or any
Noteholder to be effective shall be in writing or by telecopy or telex and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or, in the case of mail, three days after
deposit in the postal system, first class postage pre-paid, or, in the case of
telecopy notice, confirmation of receipt received, or, in the case of telex
notice, when sent, answerback received, addressed to a party at the address
provided for such party in the Note Purchase Agreement, in the case of any
Noteholder, or Schedule I hereto in the case of any Guarantor, or to such other
address as may be hereafter notified to the parties hereto.
SECTION 16. COUNTERPARTS.
This Guaranty may be executed by one or more of the parties hereto on
any number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
SECTION 17. ADDITIONAL GUARANTORS.
Each Subsidiary of the Company or any Guarantor that is required to
become a party to this Agreement pursuant to Section 9.6 of the Note Purchase
Agreement shall become a Guarantor for all purposes of this Guaranty, upon
execution and delivery by such Subsidiary of a Joinder Agreement in the form of
Annex 1 hereto. Notwithstanding the foregoing, no Guarantor shall remain a
Guarantor hereunder to the extent that Section 9.6 of the Note Purchase
Agreement requires the release or discharge of any such Guarantor.
SECTION 18. WAIVERS OF JURY TRIAL.
EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTE
PURCHASE AGREEMENT OR THE NOTES AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty to
be duly executed and delivered by its duly authorized officer as of the day and
year first above written.
M.P. PUMPS, INC.
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
TECUMSEH INVESTMENTS, INC.
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
TECUMSEH COMPRESSOR COMPANY
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
LITTLE GIANT PUMP COMPANY
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
XXXXXXX HOLDINGS, INC.
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
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TECUMSEH POWER COMPANY
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
VITRUS, INCORPORATED
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
CONVERGENT TECHNOLOGIES INTERNATIONAL, INC.
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
EVERGY, INC.
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
TRENTON DIVISION, INC.
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
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EUROMOTOR, INC.
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
TECUMSEH PUMP COMPANY
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
TECUMSEH PRODUCTS COMPANY,
ENGINE AND TRANSMISSION GROUP,
XXXXXX OPERATIONS, INC.
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
MANUFACTURING DATA SYSTEMS, INC.
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
XXXXXXX PRODUCTS, INC.
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
13
XXXXXX PROPERTY COMPANY, LLC
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
FASCO INDUSTRIES, INC.
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
XXXXXXXX MOTOR PRODUCTS COMPANY
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
ECM MOTOR COMPANY
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
XXX XXXXX GEAR COMPANY
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
14
XXXXX TECHNOLOGIES, INC.
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
TECUMSEH CANADA HOLDING COMPANY
By /s/ XXXXX X. XXX
-----------------------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
15
