Exhibit 10.18
GUARANTEE
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WHEREAS, The Chase Manhattan Bank (the "Bank") has entered into a
Credit Agreement (the "Credit Agreement"), dated October 16, 1997, with
Technology Flavors & Fragrances, Inc. (the "Debtor"); and
WHEREAS, under the terms of the Credit Agreement, the Bank has agreed
to extend credit to the Debtor, which indebtedness will be evidenced by certain
promissory notes of the Debtor issued pursuant to the Credit Agreement (the
"Notes");
WHEREAS, the undersigned (the "Guarantor") is a direct or indirect
subsidiary of the Debtor and has derived or will derive direct benefit from the
extension of credit to the Debtor;
WHEREAS, the Bank will not extend such credit unless, among other
conditions, the undersigned Guarantor shall have executed and delivered this
Guarantee; and
WHEREAS, capitalized terms used herein and not defined herein shall
have the meanings given to them in the Credit Agreement;
NOW, THEREFORE, in consideration of the Bank extending such credit to
the Debtor and other benefits accruing to Guarantor, the receipt and sufficiency
of which are hereby acknowledged, Guarantor hereby makes the following
representations and warranties to the Bank and hereby covenants and agrees with
the Bank as follows:
1. Guarantor irrevocably and unconditionally guarantees to the Bank
(i) timely payment in full by Debtor to Bank of all payments due pursuant to the
Notes (it being understood that this is a guarantee of payment and not of
collection), and (ii) timely payment and/or performance, as applicable, of all
other payment and performance obligations of Debtor pursuant to the Notes, the
Credit Agreement, the Facility Documents and all other documents and instruments
of Debtor executed in connection therewith, or pursuant to any amendment,
modification or supplement to any of the foregoing (all of the foregoing under
clauses (i) and (ii) being collectively referred to as the "Guaranteed
Obligations"). If Debtor shall default in payment of any amount due pursuant to
the Notes beyond any applicable grace period or otherwise default beyond any
applicable grace period in the performance of the Guaranteed Obligations,
Guarantor irrevocably and unconditionally agrees to pay to the Bank upon demand
the amount in default (it being understood, however, that a non-payment may
result in the acceleration of all indebtedness and a demand for payment in full
by the Guarantor under the Guarantee). Guarantor understands, agrees and
confirms that the Bank may enforce this Guarantee up to the full amount of the
Guaranteed Obligations owing against the Guarantor without proceeding against
the Debtor, against any security for the Guaranteed Obligations or against any
other guarantor under any other guarantee covering the Guaranteed Obligations.
2. Guarantor hereby acknowledges the Guaranteed Obligations and
hereby expressly waives: (i) presentment and demand for payment of the principal
of or interest thereon
or any other sums of any nature whatsoever with respect thereto, (ii) notice of
acceptance of this Guarantee, or of the extension of credit to the Debtor, (iii)
notice of any default hereunder or under any agreements between the Bank and the
Debtor with respect to the Guaranteed Obligations, (iv) demand on the Debtor for
observance or performance of, or enforcement of any terms or provisions of any
agreements between the Bank and the Debtor with respect to the Guaranteed
Obligations, (v) to the maximum extent permitted by applicable law and except as
otherwise provided herein, the benefit of all applicable laws now or hereafter
in effect in any way limiting or restricting the liability of Guarantor under
this Guarantee, including any and all right to stay of execution and exemption
of property in any action to enforce the liability of the Guarantor hereunder
and (vi) any other event or circumstance which may constitute a release of or
defense to the obligor(s) under the Guaranteed Obligations or the Guarantor
under this Guarantee. In the event this Guarantee shall be enforced by suit or
otherwise, the Guarantor shall pay the Bank, on demand, for all reasonable fees
and expenses incurred by the Bank in connection therewith, including, without
limitation, the reasonable fees and expenses of the Bank's counsel.
3. The Bank in its sole and absolute discretion, may at any time and
from time to time without the consent of, or notice to, Guarantor without
incurring responsibility to Guarantor, without impairing or releasing the
obligations of Guarantor hereunder, upon or without any terms or conditions and
in whole or in part (but in all events subject to the applicable provisions of
the Credit Agreement):
(a) by agreement with the Debtor, change the manner, place or
terms of payment of, and/or change or extend the time of payment of, increase
the amount of, or renew or alter any of the Guaranteed Obligations, any security
therefor, or any liability incurred directly or indirectly in respect thereof,
and the Guarantee herein made shall apply to the Guaranteed Obligations as so
changed, extended, increased, renewed or altered;
(b) exercise or refrain from exercising any rights against
Debtor or others or otherwise act or refrain from acting to the extent permitted
by applicable law;
(c) release, settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and
may subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of Debtor to creditors of Debtor other than
Guarantor;
(d) consent to or waive any breach of, or any act, omission or
default under, the Credit Agreement, the Notes, or any Facility Documents, or
otherwise amend, modify or supplement any of the foregoing;
(e) agree to the substitution, exchange, release or other
disposition of all or any part of any property securing the Guaranteed
Obligations, if any;
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(f) make advances for the purposes of performing any term or
covenant contained in the Credit Agreement or any Facility Document with respect
to which the Debtor may be in default;
(g) assign or otherwise transfer all or any part of the
Guaranteed Obligations, to the extent permitted by applicable law and the
Facility Documents; and
(h) deal in all respects with the Debtor as if this Guarantee
were not in effect, to the extent permitted by applicable law and the Facility
Documents.
4. No invalidity, irregularity or unenforceability of all or any part
of the Guaranteed Obligations or of any security therefor shall affect, impair
or be a defense to this Guarantee, and this Guarantee is a primary obligation of
Guarantor.
5. This Guarantee is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of the
Bank (whether acting individually or through an agent), in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein expressly specified are cumulative
and not exclusive of any rights or remedies which the Bank (whether acting
individually or through an agent), or any subsequent holder of any Guaranteed
Obligations would otherwise have. No notice to or demand on Guarantor in any
case shall entitle Guarantor to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the rights of the Bank (whether
acting individually or through an agent), or any holder of any Guaranteed
Obligations to any other or further action in any circumstances without notice
or demand.
6. This is a guarantee of payment and not of collection, and the
liability of Guarantor under this Guarantee shall be primary, direct and
immediate, and not conditional or contingent upon pursuit by the Bank of any
remedies it may have against the Debtor with respect to the Guaranteed
Obligations whether pursuant to the terms thereof or by law, or against any
other person or entity or against any other collateral. Without limiting the
generality of the foregoing, the Bank shall not be required to make any demand
on the Debtor, or to sell at foreclosure or otherwise pursue or exhaust its
remedies against the property securing the Debtor's obligations for the
Guaranteed Obligations or against the Debtor, or against any other person or
entity or against any other collateral whatsoever, before, simultaneously with
or after enforcing its rights and remedies hereunder against the Guarantor.
Any one or more successive or concurrent actions may be brought hereon against
the Guarantor either in the same action, if any, brought against the Debtor, or
in separate actions, as often as the Bank may deem advisable.
7. Guarantor represents and warrants to the Bank that:
(a) It is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all corporate power and
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authority to own all of its properties and to carry on its business as presently
conducted and as contemplated by this Guarantee and has corporate power and
authority to execute and deliver this Guarantee and to perform its obligations
hereunder.
(b) This Guarantee is the legal, valid and binding obligation of
Guarantor enforceable in accordance with its terms except to the extent that
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general principals of equity (regardless of whether enforcement is sought in a
proceeding brought in equity or at law). The execution, delivery and
performance of this Guarantee and the performance of the transactions
contemplated hereunder have been and will be duly and validly authorized and
approved by the Board of Directors and do not and will not require any consent
or approval of any third party or of the stockholders of Guarantor other than
consents which have previously been obtained.
(c) The execution and delivery of this Guarantee does not, and
the consummation of the transactions contemplated hereby will not, constitute a
violation of or a default under or conflict with the terms of the Certificate of
Incorporation or By-laws of Guarantor, or any contract, lease, indenture,
agreement, order, judgment, or decree to which it is a party or by which it is
bound or to which any of its assets are subject, which in any case or in the
aggregate could have a material adverse effect on its ability to carry out its
obligations under this Guarantee, and do not violate or constitute a default
under any applicable statute, rule, regulation, order or ordinance of any
governmental, judicial or arbitral body, which in any case, or in the aggregate,
could have a material adverse effect on its ability to carry out its obligations
under this Guarantee.
(d) Neither the execution, delivery or performance of this
Guarantee, nor the consummation of the transactions contemplated hereby,
requires Guarantor to obtain any consent, authorization, approval or
registration under any applicable law, rule or regulation, other than as
contemplated hereby or as previously obtained.
(e) There is no suit, action or legal, administrative,
arbitration or other proceeding of any nature pending, or, to the knowledge of
Guarantor, threatened, against it which might affect the legality or validity of
this Guarantee, or the transactions contemplated hereby, and there is not any
factual basis known to it for any such suit, action or proceeding.
8. This Guarantee shall be binding upon Guarantor and its successors
and assigns and shall inure to the benefit of the Bank and its successors and
permitted assigns. This Guarantee may not under any circumstances be assigned
by Guarantor to any other person or entity without the express prior written
consent of the Bank.
9. Neither this Guarantee nor any provision hereof may be changed,
waived, discharged or terminated except with the written consent of the Bank and
the Guarantor.
10. In the event that the Bank shall receive any payments on account
of any of the Guaranteed Obligations, whether directly or indirectly, and it
shall subsequently be
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determined that such payments were for any reason improper, or a claim shall be
made against the Bank that the same were improper, and the Bank pursuant to
court order shall return the same, Guarantor shall be liable, with the same
effect as if the said payments had never been paid to, or received by the Bank,
for the amount of such repaid or returned payments, notwithstanding the fact
that they may theretofore have been credited on account of the Guaranteed
Obligations or any of them. Moreover, this Guarantee shall remain effective or
be reinstated, as the case may be, if at any time payment or performance, or any
part thereof, or any or all of the Guarantor's obligations under this Guarantee
is rescinded or must otherwise be restored or returned by the Bank in connection
with the insolvency, bankruptcy or reorganization of the Guarantor or otherwise,
all as though such payment or performance had not been rendered.
Notwithstanding any compromise, release, discharge, settlement, extension or
adjustment of the Debtor's obligations under the Facility Documents or any
amendment, modification or stay of the Bank's rights against the Debtor that may
occur in any bankruptcy or reorganization case or proceeding concerning the
Debtor, whether or not assented to by the Bank, Guarantor shall remain fully
obligated to discharge the Guarantor's obligations hereunder in accordance with
the terms of this Guarantee in effect on the date hereof. Guarantor assumes all
risks of a bankruptcy or reorganization with respect to the Debtor. In
furtherance of this Section, the Bank shall not otherwise indicate the
satisfaction of the obligations of the parties represented herein until the
expiration of all applicable bankruptcy-related periods of time during which the
Debtor, the Guarantor or any third party would have the right to commence a
bankruptcy or reorganization proceeding with regard to the Debtor or Guarantor.
11. All notices and other communications provided for under this
Guarantee and under any other document executed in connection herewith shall be
in writing (including telegraphic or telefax communications) and, unless the
party to be notified otherwise notifies the other party in writing as provided
herein, notices shall be given by telecopier, by certified or registered mail or
by recognized overnight delivery service. If such notice is delivered to
Guarantor, such notice shall be addressed to Guarantor c/o Technology Flavors &
Fragrances, Inc., 00 Xxxxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000, telecopier
(000) 000-0000 Attn: Xxxxxx Xxxxx and, if to the Bank, at its address listed on
the signature pages of the Credit Agreement; or as to each party, at such other
address as shall be designated by such party in a written notice to the other
parties complying as to delivery with the terms of this Section 11. Notices
shall be effective: (a) if given by registered or certified mail, on the third
day after deposit in the mails with postage prepaid, addressed as aforesaid; (b)
if given by recognized overnight delivery service, on the business day following
deposit with such service, addressed as aforesaid; and (c) if given by telecopy,
when the telecopy is transmitted to the telecopy number, as aforesaid; provided
that all notices to the Bank shall be effective on receipt.
12. This Guarantee and the rights and obligations of the Bank and of
the undersigned hereunder shall be governed and be construed in accordance with
the laws of the State of New York applicable to agreements made and to be wholly
performed in the State of New York. Guarantor hereby irrevocably submits to the
jurisdiction of any New York State or United States Federal Court sitting in
Nassau, Suffolk or New York County over any action or proceeding arising out of
or relating to the Guarantee, and the Guarantor hereby irrevocably agrees that
all claims in respect of such action or proceeding may be heard and determined
in
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such New York State or Federal court. Guarantor irrevocably consents to service
of any and all process in any such action or proceeding by the mailing (by
registered or certified mail) of copies of such process to it at its address
specified in Section 11. Guarantor agrees that a final judgment in any such
action or proceeding arising hereunder or in connection herewith shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. To the extent permitted by applicable law,
Guarantor further waives any objection to venue in such State or Federal court
and any objection to an action or proceeding in such State or Federal court on
the basis of FORUM NON CONVENIENS. Nothing in this Section shall limit the
rights of the Bank to serve legal process in any other manner permitted by law
or affect the right of the Bank to bring any action or proceeding against
Guarantor in the courts of any other jurisdiction. To the extent that Guarantor
has or hereafter may acquire immunity from jurisdiction of any court or from any
legal process with respect to itself or its property, Guarantor hereby waives,
to the extent permitted by applicable law, such immunity in respect of their
obligations hereunder.
13. THE PARTIES HERETO WAIVE ANY RIGHT TO A TRIAL BY JURY IN
CONNECTION HEREWITH TO THE EXTENT PERMITTED BY APPLICABLE LAW.
IN WITNESS WHEREOF, Guarantor has caused this Guarantee to be executed
and delivered as of October 16, 1997.
THE GUARANTOR:
TECHNOLOGY FLAVORS & FRAGRANCES INC.
(CANADIAN SUBSIDIARY)
By: ______________________
Name:
Title:
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