EXHIBIT 10.3
FOREIGN GUARANTY
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This Guaranty (this "Guaranty") is made as of the 12th day
of March, 1997 by ______________________, a __________________________
(the "Guarantor"), in favor of the Agent and the Lenders (as
hereinafter defined).
R E C I T A L S:
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A. Scotsman Group Inc. and the other parties named therein
(collectively, the "Borrowers"), Scotsman Industries, Inc., the
financial institutions named therein (the "Lenders") and The First
National Bank of Chicago, as Agent (the "Agent"), have entered into a
certain Credit Agreement dated as of the date hereof (as from time to
time amended, restated, modified or supplemented, the "Credit
Agreement"). Each term used but not otherwise defined herein shall
have the meaning ascribed to such term by the Credit Agreement.
B. The Guarantor will receive substantial and direct
benefits from the extensions of credit contemplated by the Credit
Agreement and is entering into this Guaranty to induce the Agent and
the Lenders to enter into the Credit Agreement and to extend credit to
the Borrowers thereunder.
C. The execution and delivery of this Guaranty is a
condition precedent to the obligation of the Lenders to extend credit
to the Borrowers pursuant to the Credit Agreement.
NOW THEREFORE, in consideration of the foregoing and other
good and valuable consideration and as an inducement to the Lenders to
enter into the Credit Agreement and extend credit to the Borrowers,
the Guarantor hereby agrees as follows:
1. The Guarantor hereby absolutely, irrevocably and
unconditionally guarantees prompt, full and complete payment when due,
whether at stated maturity, upon acceleration or otherwise, and at all
times thereafter, of (a) the principal of and interest on the Loans
made by the Lenders to, and the Note(s) held by each Lender of, the
Borrowers which constitute Foreign Subsidiaries (the "Foreign
Borrowers") and (b) all other amounts from time to time owing to the
Lenders or the Agent by the Foreign Borrowers under the Credit
Agreement, the Notes and the other Loan Documents, including without
limitation any Rate Hedging Obligations (the "Guaranteed Debt"), it
being the intent of the Guarantor that the guaranty set forth herein
shall be a guaranty of payment and not of collection.
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2. The Guarantor waives notice of the acceptance of this
Guaranty and of the extension or incurrence of the Guaranteed Debt or
any part thereof. The Guarantor further waives all setoffs and
counterclaims and presentment, protest, notice, filing of claims with
a court in the event of receivership, bankruptcy or reorganization of
any Borrower, demand or action on delinquency in respect of the
Guaranteed Debt or any part thereof, including any right to require
the Agent or the Lenders to xxx any Borrower, any other guarantor or
any other person obligated with respect to the Guaranteed Debt or any
part thereof, or otherwise to enforce payment thereof against any
collateral securing the Guaranteed Debt or any part thereof.
3. The Guarantor hereby agrees that, to the fullest extent
permitted by law, its obligations hereunder shall be continuing,
absolute and unconditional under any and all circumstances and not
subject to any reduction, limitation, impairment, termination, defense
(other than indefeasible payment in full), setoff, counterclaim or
recoupment whatsoever (all of which are hereby expressly waived by it
to the fullest extent permitted by law), whether by reason of any
claim of any character whatsoever, including, without limitation, any
claim of waiver, release, surrender, alteration or compromise. The
validity and enforceability of this Guaranty shall not be impaired or
affected by any of the following: (a) any extension, modification or
renewal of, or indulgence with respect to, or substitution for, the
Guaranteed Debt or any part thereof or any agreement relating thereto
at any time; (b) any failure or omission to perfect or maintain any
lien on, or preserve rights to, any security or collateral or to
enforce any right, power or remedy with respect to the Guaranteed Debt
or any part thereof or any agreement relating thereto, or any
collateral securing the Guaranteed Debt or any part thereof; (c) any
waiver of any right, power or remedy or of any default with respect to
the Guaranteed Debt or any part thereof or any agreement relating
thereto or with respect to any collateral securing the Guaranteed Debt
or any part thereof; (d) any release, surrender, compromise,
settlement, waiver, subordination or modification, with or without
consideration, of, any collateral securing the Guaranteed Debt or any
part thereof, any other guaranties with respect to the Guaranteed Debt
or any part thereof, or any other obligations of any person or entity
with respect to the Guaranteed Debt or any part thereof; (e) the
enforceability or validity of the Guaranteed Debt or any part thereof
or the genuineness, enforceability or validity of any agreement
relating thereto or with respect to any collateral securing the
Guaranteed Debt or any part thereof; (f) the application of payments
received from any source to the payment of indebtedness other than the
Guaranteed Debt, any part thereof or amounts which are not covered by
this Guaranty even though the Lenders might lawfully have elected to
apply such payments to any part or all of the Guaranteed Debt or to
amounts which are not covered by this Guaranty; (g) any change of
ownership of any Borrower or the insolvency, bankruptcy or any other
change in the legal status of any Borrower; (h) any change in, or the
imposition of, any law, decree, regulation or other governmental act
which does or might impair, delay or in any way affect the validity,
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enforceability or the payment when due of the Guaranteed Debt; (i) the
failure of any Borrower to maintain in full force, validity or effect
or to obtain or renew when required all governmental and other
approvals, licenses or consents required in connection with the
Guaranteed Debt or this Guaranty, or to take any other action required
in connection with the performance of all obligations pursuant to the
Guaranteed Debt or this Guaranty; (j) the existence of any claim,
setoff or other rights which the Guarantor may have at any time
against any Borrower or any other guarantor in connection herewith or
with any unrelated transaction; (k) the Lenders' election, in any case
or proceeding instituted under chapter 11 of the United States
Bankruptcy Code, of the application of section 1111(b)(2) of the
United States Bankruptcy Code; (1) any borrowing, use of cash
collateral, or grant of a security interest by any Borrower, as debtor
in possession, under section 363 or 364 of the United States
Bankruptcy Code; (m) the disallowance of all or any portion of any of
the Lenders' claims for repayment of the Guaranteed Debt under section
502 or 506 of the United States Bankruptcy Code; or (n) any other fact
or circumstance which might otherwise constitute grounds at law or
equity for the discharge or release of the Guarantor from its
obligations hereunder, all whether or not the Guarantor shall have had
notice or knowledge of any act or omission referred to in the
foregoing CLAUSES (a) THROUGH (n) of this paragraph. It is agreed that
the Guarantor's liability hereunder is independent of any other
guaranties or other obligations at any time in effect with respect to
the Guaranteed Debt or any part thereof and that the Guarantor's
liability hereunder may be enforced regardless of the existence,
validity, enforcement or nonenforcement of any such other guaranties
or other obligations or any provision of any applicable law or
regulation purporting to prohibit payment by any Borrower of the
Guaranteed Debt in the manner agreed upon among the Agent, the Lenders
and the Borrowers. Notwithstanding the provisions of Section 3(a),
(b), (c) and (e) above, the validity and enforceability of this
Guaranty shall be subject to the express terms of any written
amendment, supplement, modification or waiver of the terms or
provisions of this Guaranty signed and delivered by the Agent on
behalf of the Lenders.
4. Credit may be granted or continued from time to time by
the Lenders to the Foreign Borrowers without notice to or
authorization from the Guarantor regardless of any Borrower's
financial or other condition at the time of any such grant or
continuation. Neither the Agent nor any Lender shall have an
obligation to disclose or discuss with the Guarantor its assessment of
the financial condition of any Borrower.
5. The Guarantor shall have no right of subrogation with
respect to the Guaranteed Debt and hereby waives any right to enforce
any remedy which the Agent or the Lenders now have or may hereafter
have against any Borrower, any endorser or any other guarantor of all
or any part of the Guaranteed Debt, and the Guarantor hereby waives
any benefit of, and any right to participate in, any security or
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collateral given to the Agent or the Lenders to secure payment of the
Guaranteed Debt or any part thereof or any other liability of any
Borrower to the Agent or the Lenders. The Guarantor hereby releases
each Borrower from all, and agrees not to assert or enforce (whether
by or in a legal or equitable proceeding or otherwise) any, "CLAIMS"
(as defined in Section 101(4) of the United States Bankruptcy Code, as
amended), whether arising under any law, statute, governmental rule or
regulation or judicial determination or otherwise, to which the
Guarantor is or would at any time be entitled by virtue of its
obligations hereunder, any payment made pursuant thereto or the
exercise by the Agent or any Lender of its rights with respect to any
collateral for the Guaranteed Debt, including any such claims to which
the Guarantor may be entitled as a result of any right of subrogation,
exoneration or reimbursement.
6. The Guarantor authorizes the Lenders to take any action
or exercise any remedy with respect to any collateral from time to
time securing the Guaranteed Debt, which the Lenders in their sole
discretion shall determine, without notice to the Guarantor.
7. In the event the Lenders in their sole discretion elect
to give notice of any action with respect to any collateral securing
the Guaranteed Debt or any part thereof, ten (10) days' written notice
mailed to the Guarantor by ordinary mail at the address shown hereon
shall be deemed reasonable notice of any matters contained in such
notice. The Guarantor consents and agrees that neither the Agent nor
the Lenders shall be under any obligation to xxxxxxxx any assets in
favor of the Guarantor or against or in payment of any or all of the
Guaranteed Debt.
8. In the event that acceleration of the time for payment
of any of the Guaranteed Debt is stayed upon the insolvency,
bankruptcy or reorganization of any Borrower, or otherwise, all such
amounts shall nonetheless be payable by the Guarantor forthwith upon
demand by the Agent or the Lenders. The Guarantor further agrees
that, to the extent that any Borrower makes a payment or payments to
any of the Lenders on the Guaranteed Debt, or the Agent or the Lenders
receive any proceeds of collateral securing the Guaranteed Debt, which
payment or receipt of proceeds or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or
required to be returned or repaid to such Borrower, its estate,
trustee, receiver, debtor in possession or any other party, including,
without limitation, the Guarantor, under any insolvency or bankruptcy
law, state or federal law, common law or equitable cause, then to the
extent of such payment, return or repayment, the obligation or part
thereof which has been paid, reduced or satisfied by such amount shall
be reinstated and continued in full force and effect as of the date
when such initial payment, reduction or satisfaction occurred.
9. No delay on the part of the Agent or the Lenders in the
exercise of any right, power or remedy shall operate as a waiver
thereof, and no single or partial exercise by the Agent or the Lenders
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of any right, power or remedy shall preclude any further exercise
thereof; nor shall any amendment, supplement, modification or waiver
of any of the terms or provisions of this Guaranty be binding upon the
Agent or the Lenders, except as expressly set forth in a writing duly
signed and delivered on the Lenders' behall by the Agent. The failure
by the Agent or the Lenders at any time or times hereafter to require
strict performance by any Borrower or the Guarantor of any of the
provisions, warranties, terms and conditions contained in any
promissory note, security agreement, agreement, guaranty, instrument
or document now or at any time or times hereafter executed pursuant to
the terms of, or in connection with, the Credit Agreement by any
Borrower or the Guarantor and delivered to the Agent or the Lenders
shall not waive, affect or diminish any right of the Agent or the
Lenders at any time or times hereafter to demand strict performance
thereof, and such right shall not be deemed to have been waived by any
act or knowledge of the Agent or the Lenders, their agents, officers
or employees, unless such waiver is contained in an instrument in
writing duly signed and delivered on the Lenders' behalf by the Agent.
No waiver by the Agent or the Lenders of any default shall operate as
a waiver of any other default or the same default on a future
occasion, and no action by the Agent or the Lenders permitted
hereunder shall in any way affect or impair the Agent's or the
Lenders' rights or powers, or the obligations of the Guarantor under
this Guaranty. Any determination by a court of competent jurisdiction
of the amount of any Guaranteed Debt owing by the Foreign Borrowers to
the Lenders shall be conclusive and binding on the Guarantor
irrespective of whether the Guarantor was a party to the suit or
action in which such determination was made.
10. Subject to the provisions of SECTION 8, this Guaranty
shall continue in effect until the Credit Agreement has terminated,
the Guaranteed Debt has been paid in full and the other conditions of
this Guaranty have been satisfied.
11. In addition to and without limitation of any rights,
powers or remedies of the Agent or the Lenders under applicable law,
any time after maturity of the Guaranteed Debt, whether by
acceleration or otherwise, the Agent or the Lenders may, in their sole
discretion, with notice after the fact to the Guarantor and regardless
of the acceptance of any security or collateral for the payment
hereof, appropriate and apply toward the payment of the Guaranteed
Debt (a) any indebtedness due or to become due from any of the Lenders
to the Guarantor, and (b) any moneys, credits or other property
belonging to the Guarantor (including all account balances, whether
provisional or final and whether or not collected or available) at any
time held by or coming into the possession of any of the Agent or any
Lender whether for deposit or otherwise.
12. The Guarantor agrees to pay all costs, fees and
expenses (including reasonable attorneys' fees and time charges, which
attorneys may be employees of the Agent or a Lender) incurred by the
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Agent or any Lender in collecting or enforcing the obligations of the
Guarantor under this Guaranty.
13. This Guaranty shall bind the Guarantor and its
successors and assigns and shall inure to the benefit of the Agent,
the Lenders and their successors and assigns. All references herein to
the Lenders shall for all purposes also include all Purchasers and
Participants (as such terms are defined in the Credit Agreement). All
references herein to the Borrowers shall be deemed to include its
successors and assigns including, without limitation, a receiver,
trustee or debtor in possession of or for the Borrowers.
14. THIS GUARANTY SHALL BE DEEMED TO HAVE BEEN MADE AT
CHICAGO, ILLINOIS, AND SHALL BE CONSTRUED AND THE RIGHTS AND
LIABILITIES OF THE AGENT, THE LENDERS AND THE GUARANTOR DETERMINED, IN
ACCORDANCE WITH THE INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF LAWS
PROVISIONS, OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL
LAWS APPLICABLE TO NATIONAL BANKS. THE GUARANTOR CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN XXXX COUNTY,
ILLINOIS, WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND
CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY MESSENGER OR BY
REGISTERED MAIL DIRECTED TO THE GUARANTOR AT THE ADDRESS INDICATED
BELOW, AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED THREE (3)
DAYS AETER THE SAME SHALL HAVE BEEN POSTED AS AFORESAID. THE GUARANTOR
WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION
TO VENUE OF ANY ACTION INSTITUTED HEREUNDER. NOTHING CONTAINED HEREIN
SHALL AFFECT THE RIGHT OF THE AGENT OR THE LENDERS TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF
THE AGENT OR THE LENDERS TO BRING ANY ACTION OR PROCEEDING AGAINST THE
GUARANTOR OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
15. EACH OF THE GUANANTOR AND, BY THEIR ACCEPTANCE HEREOF,
THE AGENT AND EACH LENDER, WAIVES TRIAL BY JURY WITH RESPECT TO
DISPUTES ARISING HEREUNDER.
16. Wherever possible, each provision of this Guaranty
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
17. Except as otherwise expressly provided herein, any
notice required or desired to be served, given or delivered to any
party hereto under this Guaranty shall be in writing by telex,
facsimile, United States mail or overnight courier and addressed or
delivered to such party (a) if to the Agent or the Lenders, at their
respective addresses set forth in the Credit Agreement, or (b) if to
the Guarantor, at its address indicated on EXHIBIT A hereto, or to
such other address as the Agent or the Lenders or the Guarantor
designates to the Agent in writing. All notices by United States mail
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shall be sent certified mail, return receipt requested. All notices
hereunder shall be effective upon delivery or refusal of receipt;
PROVIDED, that any notice transmitted by telex or facsimile shall be
deemed given when transmitted (answerback confirmed in the case of
telexes).
18. All payments hereunder shall be made by the Guarantor
in the currency in which the Guaranteed Debt was borrowed (the
"Specified Currency") and in the manner and at the address (the
"Specified Place") specified in Section 2.14(a) of the Credit
Agreement for the payment of such Guaranteed Debt. Payment of the
Guaranteed Debt shall not be discharged by an amount paid in another
currency or in another place, whether pursuant to a judgment or
otherwise, to the extent that the amount so paid on conversion to the
Specified Currency and transferred to the Specified Place under normal
banking procedures does not yield the amount of the Specified Currency
at the Specified Place due hereunder. If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due
hereunder in the Specified Currency into another currency (the
"Judgment Currency"), the rate of exchange which shall be applied
shall be that at which in accordance with normal banking procedures
the Agent could purchase the Judgment Currency with that amount of the
Specified Currency on the Business Day next preceding that on which
such judgment is rendered. The obligation of the Guarantor in respect
of any such sum due from it to the Agent or any Lender hereunder (an
"Entitled Person") shall, notwithstanding the rate of exchange
actually applied in rendering such judgment, be discharged only to the
extent that on the Business Day following receipt by such Entitled
Person of any sum adjudged to be due hereunder in the Judgment
Currency, such Entitled Person may in accordance with normal banking
procedures purchase and transfer to the Specified Place the Specified
Currency with the amount of the Judgment Currency so adjudged to be
due; and the Guarantor, as a separate Obligation and notwithstanding
any such judgment, agrees to indemnify such Entitled Person against,
and to pay such Entitled Person on demand, in the Specified Currency,
any difference between the sum originally due to such Entitled Person
in the Specified Currency and the amount of the Specified Currency so
purchased and transferred.
19. (a) Except as otherwise required by applicable law,
all sums payable by the Guarantor whether in respect of principal,
interest, fees or otherwise shall be paid without deduction for any
present and future taxes, levies, assessments, imposts, deductions,
charges or withholdings imposed by any country, any Governmental
Agency thereof or therein, any jurisdiction from which any or all such
payments are made and any political subdivision or taxing authority
thereof or therein, EXCLUDING income and franchise taxes (and
deductions and withholdings therefor) imposed on the Agent or any
Lender (i) by the jurisdiction under the laws of which the Agent or
such Lender is organized or any Governmental Agency or taxing
authority thereof or therein, or (ii) by any jurisdiction in which the
Agent's or such Lender's Lending Installations are located or any
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Governmental Agency or taxing authority thereof or therein (such
excluded taxes, deductions and withholdings, collectively, "Excluded
Taxes," and all such taxes, levies, imposts, deductions, charges and
withholdings (including Excluded Taxes), collectively, "Taxes"), which
amounts shall be paid by such Borrower as provided in SECTION 19(b).
(b) If (i) the Guarantor or any other Person is
required by law to make any deduction or withholding on account of any
Tax (other than Excluded Taxes) or other amount from any sum paid or
expressed to be payable by the Guarantor to any Lender under this
Guaranty; or (ii) any party to this Guaranty (or any Person on its
behalf) or the Credit Agreement other than the Guarantor is required
by law to make any deduction or withholding from, or (other than on
account of any Excluded Tax) any payment on or calculated by reference
to the amount of, any such sum received or receivable by any Lender
under this Guaranty, then:
(w) the Guarantor shall notify the Agent of any such requirement
or any change in any such requirement as soon as the
Guarantor becomes aware of it;
(x) the Guarantor shall pay any such Tax or other amount before
the date on which penalties attached thereto become due and
payable, such payment to be made (if the liability to pay is
imposed on the Guarantor) for its own account or (if that
liability is imposed on the Agent or any Lender) on behalf
of and in the name of that party;
(y) the sum payable by the Guarantor in respect of which the
relevant deduction, withholding or payment is required shall
(except, in the case of any such payment, to the extent that
the amount thereof is not ascertainable when that sum is
paid) be increased to the extent necessary to ensure that,
after the making of that deduction, withholding or payment,
that party receives on the due date and retains (free from
any liability in respect of any such deduction, withholding
or payment) a sum equal to that which it would have received
and so retained had no such deduction, withholding or
payment been required or made; and
(z) within thirty (30) days after payment of any sum from which
the Guarantor is required by law to make any deduction or
withholding, and within thirty (30) days after the due date
of payment of any Tax or other amount which it is required
by clause (x) above to pay, it shall deliver to the Agent
all such certified documents and other evidence as to the
making of such deduction, withholding or payment as (i) are
reasonably satisfactory to other affected parties as proof
of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other authority
and (ii) are reasonably required by any such party to enable
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it to claim a tax credit with respect to such deduction,
withholding or payment.
20. It is understood that while the amount of the
Guaranteed Debt guaranteed hereby is not limited, if in any action or
proceeding involving any state, federal or foreign bankruptcy,
insolvency or other law affecting the rights of creditors generally,
this Guaranty would be held or determined to be void, invalid or
unenforceable on account of the amount of the aggregate liability
under this Guaranty, then, notwithstanding any other provision of this
Guaranty to the contrary, the aggregate amount of such liability
shall, without any further action of the Agent, the Lenders or any
other Person, be automatically limited and reduced to the highest
amount which is valid and enforceable as determined in such action or
proceeding.
[signature page to follow]
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IN WITNESS WHEREOF, the Guarantor has entered into this
Guaranty as of the date first written above.
_________________
By:
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Its:
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EXHIBIT A TO GUARANTY
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ADDRESS OF GUARANTOR:
000 Xxxxxxxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: 847/000-0000
Facsimile: 847/634-8823
