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[EXECUTION COPY]
GUARANTY
This GUARANTY, dated as of March 30, 1998, is made by the undersigned
Subsidiaries (each a "Subsidiary Guarantor" and collectively, the "Subsidiary
Guarantors") of Spalding & Evenflo Companies, Inc., a Delaware corporation (the
"Borrower"), and each other Person which may from time to time hereafter become
a party hereto pursuant to Section 13 (each, individually, an "Additional
Guarantor", and, collectively, the "Additional Guarantors", and, together with
the Subsidiary Guarantors, each, individually, a "Guarantor", and,
collectively, the "Guarantors"), in favor of Bank of America National Trust &
Savings Association, as administrative agent (in such capacity, the
"Administrative Agent") for the various financial institutions from time to
time parties (collectively, the "Lenders") to that certain Liquidity Facility,
dated as of March 30, 1998 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "Liquidity Facility"), among the
Borrower, Evenflo & Spalding Holdings Corporation, a Delaware corporation, as a
guarantor ("Holdings"), the Lenders, Xxxxxxx Xxxxx Capital Corporation, as
documentation agent (in such capacity, the "Documentation Agent") for the
Lenders, NationsBank N.A. South, as syndication agent (in such capacity, the
"Syndication Agent") and the Administrative Agent, for the ratable benefit of
the Secured Creditors (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to the Liquidity Facility, the Lenders have
severally agreed to make Loans (such capitalized term, and other capitalized
terms used in these recitals, to have the meanings set forth, or defined by
reference in, Section 1) to the Borrower upon the terms and subject to the
conditions set forth therein (such Lenders, together with the Administrative
Agent, the Documentation Agent and the Syndication Agent, being referred to
herein as the "Secured Creditors");
WHEREAS, each Guarantor is a Domestic Subsidiary, in each case, of the
Borrower;
WHEREAS, the proceeds of the Loans will be used in part to enable the
Borrower to make valuable transfers to the Guarantors in connection with the
operation of their respective businesses;
WHEREAS, the Borrower and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefits from the making of the Loans; and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective Loans to the Borrower under the Liquidity Facility
that the Guarantors shall have executed and delivered this Guaranty to the
Administrative Agent for the ratable benefit of the Secured Creditors;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Liquidity Facility and
to induce the Lenders to make their respective Loans to the Borrower under the
Liquidity Facility, the Guarantors hereby agree with the Administrative Agent,
for the ratable benefit of the Secured Creditors, as follows:
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1. Defined Terms. (a) Unless otherwise defined herein, terms defined
in the Liquidity Facility and used herein shall have the meanings ascribed to
them in the Liquidity Facility.
(b) As used herein, "Obligations" means, collectively, the unpaid
principal of and interest on the Loans and all other obligations and
liabilities of the Borrower to the Administrative Agent or any Lender
(including interest accruing at the then-applicable rate provided in the
Liquidity Facility after the maturity of the Loans and interest accruing at the
then-applicable rate provided in the Liquidity Facility after, or which would
have accrued but for, the filing or commencement of, or which would have
accrued but for the filing or commencement of, any Insolvency Proceeding,
relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter incurred, that may arise under, out of, or in connection with, the
Liquidity Facility, the other Loan Documents or any other document made,
delivered or given in connection therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including all reasonable fees and other charges of counsel to the
Administrative Agent or to the Lenders that are required to be paid by
Holdings, the Borrower or any Guarantor pursuant to the terms of the Liquidity
Facility or any other Loan Document) and all obligations of each Obligor (other
than the Borrower) now or hereafter existing under this Guaranty and each other
Loan Document to which it is or may become a party.
(c) "Guaranty" means this Guaranty, as amended, amended and
restated, supplemented or otherwise modified from time to time.
(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guaranty shall refer to this Guaranty as a
whole and not to any particular provision of this Guaranty, and Section
references are to Sections of this Guaranty unless otherwise specified. The
word "including" is not limiting and means "including without limitation".
(e) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guaranty. (a) Subject to the provisions of Section 2(b), each of
the Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantees to the Administrative Agent, for the ratable benefit of the Secured
Creditors and their respective successors, endorsees, transferees and assigns,
the prompt and complete payment and performance by the Borrower when due
(whether at the stated maturity, by acceleration or otherwise) of the
Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under
the other Loan Documents shall in no event exceed the amount that can be
guaranteed by such Guarantor under applicable federal and state laws relating
to the insolvency of debtors.
(c) Each Guarantor further agrees to pay any and all reasonable
expenses (including all reasonable fees and disbursements of counsel) that may
be paid or incurred by the Administrative Agent or any Secured Creditor in
enforcing or obtaining advice of counsel in respect of any rights with respect
to, or collecting, any or all of the Obligations and/or enforcing any rights
with respect to, or collecting against, such Guarantor under this Guaranty.
Unless the Guarantors and the Administrative Agent shall
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otherwise agree, this Guaranty shall remain in full force and effect until the
Obligations are paid in full and the Commitments are terminated,
notwithstanding that from time to time prior thereto the Borrower may be free
from any 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 and remedies
of the Administrative Agent or any Secured Creditor hereunder.
(e) No payment or payments made by the Borrower, any of the
Guarantors, any other guarantor or any other Person or received or collected by
the Administrative Agent or any Secured Creditor from the Borrower, any of the
Guarantors, any other guarantor or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the 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 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 and the Commitments are
terminated.
(f) Each Guarantor agrees that whenever, at any time, or from time
to time, it shall make any payment to the Administrative Agent or any Secured
Creditor on account of its liability hereunder, it will notify the
Administrative Agent in writing that such payment is made under this Guaranty
for such purpose.
3. Right of Contribution. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of
any payment made hereunder, such Guarantor shall be entitled to seek and
receive contribution from and against any other Guarantor hereunder who has not
paid its proportionate share of such payment. Each Guarantor's right of
contribution shall be subject to the terms and conditions of Section 5. The
provisions of this Section 3 shall in no respect limit the obligations and
liabilities of any Guarantor to the Administrative Agent and the Secured
Creditors, and each Guarantor shall remain liable to the Administrative Agent
and the Secured Creditors for the full amount guaranteed by such Guarantor
hereunder.
4. Right of Set-off. In addition to any rights and remedies of the
Administrative Agent and each Secured Creditor provided by law, if an Event of
Default exists or the Loans have been accelerated, each Guarantor hereby
irrevocably authorizes the Administrative Agent and each Secured Creditor at
any time and from time to time, without prior notice to such Guarantor, any
such notice being waived by such Guarantor to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held by, and other indebtedness,
credits or claims (in each case, in any currency and whether direct or
indirect, absolute or contingent, matured or unmatured) at any time owing by
the Administrative Agent or such Secured Creditor (or any branch or agency
thereof) to or for the credit or the account of such Guarantor against any and
all Obligations then due and payable by such Guarantor hereunder (whether at
the stated maturity, by acceleration or otherwise). Each Secured Creditor
agrees to promptly notify the Guarantor and the Administrative Agent after any
such set-off and application made by such Secured Creditor; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application.
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5. Postponement of Subrogation, etc. Each Guarantor hereby expressly
waives, until the Obligations are paid in full and the Commitments are
terminated, any rights which it may now have or hereafter acquire against the
Borrower or any Guarantor by way of subrogation, reimbursement, contribution or
setoff by virtue of any payment made pursuant to the terms hereof or otherwise
and any claim, right or remedy which such Guarantor may now have or hereafter
acquire against the Borrower or any Guarantor that arises from the existence or
performance by such Guarantor of its obligations hereunder, including any
claim, right or remedy of the Administrative Agent or any Secured Creditor
against the Borrower or any security which the Administrative Agent or any
Secured Creditor now have or hereafter acquire, whether or not such claim,
right or remedy arises in equity, under contract, by statute, under color of
law or otherwise. If any amount shall be paid to any Guarantor on account of
such subrogation, reimbursement, contribution, setoff or other rights at any
time when all the Obligations shall not have been paid in full and all the
Commitments terminated, such amount shall be held by such Guarantor in trust
for the benefit of the Administrative Agent and the Secured Creditors,
segregated from other funds of such Guarantor, and shall, forthwith upon
receipt by such Guarantor, be turned over to the Administrative Agent in the
exact form received by such Guarantor (duly endorsed by such Guarantor to the
Administrative Agent, if required) to be (after payment of any amounts payable
to the Administrative Agent pursuant to Section 11.4 and 11.5 of the Liquidity
Facility) applied by the Administrative Agent for the ratable benefit of the
Secured Creditors in the following order: first, against Obligations consisting
of unpaid and outstanding interest on the Loans, second, ratably against
Obligations consisting of unpaid and outstanding principal of the Loans, and
third, against any other remaining Obligations. Any surplus of such cash or
cash proceeds held by the Administrative Agent and remaining after payment in
full of all the Obligations (other than indemnities, costs and expenses that
survive termination of a Loan Document but as to which demand for payment has
not then been made) and the termination of all Commitments shall be paid over
to the Borrower or to any other Person notified in writing to the
Administrative Agent that may be lawfully entitled to receive such surplus.
6. 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 the Administrative Agent or any Secured Creditor 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 the Administrative Agent or any Secured Creditor, and the Liquidity
Facility and the other Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or the Majority
Lenders, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Administrative Agent or any Secured Creditor for the payment of the Obligations
may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Secured Creditor 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 of the Guarantors, the Administrative
Agent or any Secured Creditor may, but shall be under no obligation to, make a
similar demand on the Borrower or any other Guarantor or guarantor, and any
failure by the Administrative Agent or any Secured Creditor to make any such
demand or to collect any payments from the Borrower or any such other Guarantor
or guarantor or any release of the Borrower or
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such other Guarantor or guarantor shall not relieve any of the Guarantors 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 the Administrative Agent or any Secured Creditor against any
of the Guarantors. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
7. Guaranty Absolute and Unconditional. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Secured Creditor upon this Guaranty or acceptance of this Guaranty; the
Obligations (and any of them) shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived, in
reliance upon this Guaranty; and all dealings between the Borrower and any of
the Guarantors, on the one hand, and the Administrative Agent and the Secured
Creditors, on the other hand, likewise shall be conclusively presumed to have
been had or consummated in reliance upon this Guaranty. Each Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Borrower or any of the Guarantors with respect to the
Obligations. Each Guarantor understands and agrees that this Guaranty shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the genuineness, legality, validity, regularity or
enforceability of the Liquidity Facility or any other Loan Document, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by the
Administrative Agent or any Secured Creditor, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) that may at any
time be available to or be asserted by the Borrower against the Administrative
Agent or any Secured Creditor or (c) any other circumstance whatsoever (with or
without notice to or knowledge of the Borrower or such Guarantor) that
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower for the Obligations, or of such Guarantor under this
Guaranty, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against any Guarantor, the Administrative Agent and any
Secured Creditor may, but shall be under no obligation to, pursue such rights
and remedies as it may have against the Borrower or any other Person or against
any collateral security or guarantee for the Obligations or any right of offset
with respect thereto, and any failure by the Administrative Agent or any
Secured Creditor to pursue such other rights or remedies or to collect any
payments from the Borrower or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or
any release of the Borrower or any such other Person or any such collateral
security, guarantee or right of offset, shall not relieve such Guarantor of any
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Administrative
Agent and the Secured Creditors against such Guarantor. Unless the Guarantors
and the Administrative Agent shall otherwise agree, this Guaranty shall remain
in full force and effect and be binding in accordance with and to the extent of
its terms upon each Guarantor and the successors and assigns thereof, and shall
inure to the benefit of the Administrative Agent and the Secured Creditors, and
their respective successors, endorsees, transferees and assigns, until all the
Obligations and the obligations of each Guarantor under this Guaranty shall
have been satisfied by payment in full and the Commitments are terminated,
notwithstanding that from time to time during the term of the Liquidity
Facility the Borrower may be free from any Obligations; provided, that, upon
the sale or other disposition of any Guarantor hereunder in accordance with the
terms of the Liquidity Facility, such Guarantor shall be automatically released
from all obligations hereunder to the extent that such sale or other
disposition causes such Guarantor to cease being a Domestic Subsidiary of the
Borrower.
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8. 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 any of the Obligations is rescinded or must otherwise be restored or
returned by the Administrative Agent or any Secured Creditor in connection with
an Insolvency Proceeding of the Borrower or any Guarantor, including upon or as
a result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
9. Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars at the office of the Administrative Agent set forth in
Schedule 11.2 to the Liquidity Facility.
10. Representations and Warranties; Covenants. (a) Each Guarantor
hereby represents and warrants that the representations and warranties set
forth in Article VI of the Liquidity Facility as they relate to such Guarantor
or the Loan Documents, if any, to which such Guarantor is a party, each of
which is hereby incorporated herein by reference, are true and correct, and the
Administrative Agent and each Secured Creditor shall be entitled to rely on
each of them as if they were fully set forth herein.
(b) Each Guarantor hereby covenants and agrees with the
Administrative Agent and each Secured Creditor that, from and after the date of
this Guaranty until the Obligations are paid in full and the Commitments are
terminated, such Guarantor shall take, or shall refrain from taking, as the
case may be, all actions that are necessary to be taken or not taken so that no
violation of any provision, covenant or agreement contained in Article VII or
VIII of the Liquidity Facility, and so that no Default or Event of Default, is
caused by any act or failure to act of such Guarantor or any of its
Subsidiaries.
11. Authority of Agent. Each Guarantor acknowledges that the rights
and responsibilities of the Administrative Agent under this Guaranty with
respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Guaranty shall, as between the Administrative Agent and the Secured
Creditors, be governed by the Liquidity Facility and by such other agreements
with respect thereto as may exist from time to time among them, but, as between
the Administrative Agent and such Guarantor, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Secured Creditors with full
and valid authority so to act or refrain from acting, and no Guarantor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
12. Notices. All notices, requests and demands pursuant hereto shall
be made in accordance with Section 11.2 of the Liquidity Facility, provided
that any such notice, request or demand to or upon any Guarantor shall be
addressed to such Guarantor in care of the Borrower in accordance with such
Section.
13. Additional Guarantors. Upon the execution and delivery by any
other Person of an instrument in the form of Annex I hereto, such Person shall
become a "Guarantor" hereunder with the same force and effect as if originally
named as a Guarantor herein. The execution and delivery of any such instrument
shall not require the consent of any other Guarantor hereunder. The rights and
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obligations of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this Guaranty.
14. Counterparts. This Guaranty may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument. A set of the counterparts of this
Guaranty signed by all the Guarantors shall be lodged with the Administrative
Agent.
15. Severability. Any provision of this Guaranty that 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.
16. Integration; Loan Document. This Guaranty represents the
agreement of each Guarantor with respect to the subject matter hereof and there
are no promises or representations by the Administrative Agent or any Secured
Creditor relative to the subject matter hereof not reflected herein or, to the
extent expressly referred to herein, in the other Loan Documents. This
Guaranty constitutes a Loan Document.
17. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None
of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the affected Guarantor(s) and the Administrative Agent in accordance with
Section 11.1 of the Liquidity Facility.
(b) Neither the Administrative Agent nor any Secured Creditor
shall by any act (except by a written instrument pursuant to Section 17(a)),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Administrative Agent or any
Secured Creditor, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent
or any Secured Creditor of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy that the Administrative
Agent or such Secured Creditor would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
18. 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.
19. Successors and Assigns. This Guaranty shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of the
Administrative Agent and the Secured Creditors and
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their successors and assigns, except that no Guarantor may assign, transfer or
delegate any of its rights or obligations under this Agreement without the
prior written consent of the Administrative Agent.
20. WAIVER OF JURY TRIAL. EACH GUARANTOR AND THE ADMINISTRATIVE
AGENT (ON ITS BEHALF AND ON BEHALF OF THE SECURED CREDITORS) HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
21. Submission to Jurisdiction; Waivers. Each Guarantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Guaranty or any other Loan Document, or for
recognition and enforcement of any judgement in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof.
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to such Guarantor in
care of the Borrower at the Borrower's address referred to in Section 11.2 of
the Liquidity Facility or at such other address of which the Administrative
Agent shall have been notified pursuant to Section 11.2 of the Liquidity
Facility;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
22. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty
to be duly executed and delivered as of the date first above written.
EVENFLO COMPANY, INC.
ETONIC WORLDWIDE CORPORATION
LISCO, INC.
S&E FINANCE CO., INC.
SPALDING SPORTS CENTERS, INC.
ETONIC LISCO, INC.
LISCO FURNITURE, INC.
LISCO FEEDING, INC.
LISCO SPORTS, INC.
By:_____________________________________
Name: W. Xxxxxxx Xxxxxxx
Title: Treasurer and Vice President
S&E FINANCE CO., INC.
By:_____________________________________
Name: Xxxx X. Xxxxxxx
Title: President and CEO
ACCEPTED BY:
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION,
as Administrative Agent
By:__________________________
Name:
Title:
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ANNEX I to
Guaranty
SUPPLEMENT NO. ___ dated as of _____________ ___, _____
(this "Supplement"), to the Guaranty, dated as of March 30,
1998 (as amended, supplemented, or otherwise modified, from
time to time, the "Guaranty"), among the initial signatories
thereto and each other Person which from time to time
thereafter became a party thereto pursuant to Section 13
thereof (each, individually, a "Guarantor", and, collectively,
the "Guarantors"), in favor of Bank of America National Trust
& Savings Association, as Administrative Agent (in such
capacity, the "Administrative Agent") for the ratable benefit
of the Secured Creditors (as defined in the Guaranty).
W I T N E S S E T H:
WHEREAS, capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Guaranty;
WHEREAS, the Guaranty provides that additional parties may become
Guarantors under the Guaranty by execution and delivery of an instrument in the
form of this Supplement;
WHEREAS, pursuant to the provisions of Section 13 of the Guaranty, the
undersigned is becoming an Additional Guarantor under the Guaranty; and
WHEREAS, the undersigned desires to become a Guarantor under the
Guaranty in order to induce the Lenders to continue to make and maintain Loans
under the Liquidity Facility as consideration therefor;
NOW, THEREFORE, the undersigned agrees, for the benefit of the
Administrative Agent and Secured Creditors, as follows:
1. In accordance with the Guaranty, the undersigned by its signature
below becomes a Guarantor under the Guaranty with the same force and effect as
if it were an original signatory thereto as a Guarantor and the undersigned
hereby (a) agrees to all the terms and provisions of the Guaranty applicable to
it as a Guarantor thereunder and (b) represents and warrants that the
representations and warranties made by it as a Guarantor thereunder are true
and correct on and as of the date hereof. In furtherance of the foregoing,
each reference to a "Guarantor" or an "Additional Guarantor" in the Guaranty
shall be deemed to include the undersigned.
2. The undersigned hereby represents and warrants that this
Supplement has been duly authorized, executed and delivered by the undersigned
and the Guaranty constitutes a legal, valid and binding obligation of the
undersigned, enforceable against it in accordance with its terms.
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3. In the event any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guaranty shall not in any way be affected or impaired.
4. Without limiting the provisions of the Liquidity Facility (or any
other Loan Document, including the Guaranty), the undersigned agrees to
reimburse the Administrative Agent for its reasonable out-of-pocket expenses in
connection with this Supplement, including reasonable attorneys' fees and
expenses of the Administrative Agent.
5. WITHOUT LIMITING THE EFFECT OF SECTION 20 OF THE GUARANTY, THE
UNDERSIGNED AND THE ADMINISTRATIVE AGENT (ON ITS BEHALF AND ON BEHALF OF THE
SECURED CREDITORS) HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS SUPPLEMENT, THE GUARANTY OR
ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
6. Without limiting the effect of Section 21 of the Guaranty, the
undersigned hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Supplement, the Guaranty or any other Loan
Document, or for recognition and enforcement of any judgement in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the State
of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof.
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the undersigned in
care of the Borrower at the Borrower's address referred to in Section 11.2 of
the Liquidity Facility or at such other address of which the Administrative
Agent shall have been notified pursuant to Section 11.2 of the Liquidity
Facility;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
7. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
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8. This Supplement hereby incorporates by reference the provisions of
the Guaranty, which provisions are deemed to be a part hereof, and this
Supplement shall be deemed to be a part of the Guaranty.
9. This Supplement is a Loan Document executed pursuant to the
Liquidity Facility and the Guaranty.
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IN WITNESS WHEREOF, the undersigned has duly executed this Supplement
to the Supplement as of the day and year first above written.
[NAME OF ADDITIONAL GUARANTOR]
By ______________________________
Name:
Title:
ACCEPTED BY:
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION,
as Administrative Agent
By _______________________________
Name:
Title:
