GUARANTY
Exhibit 10.2
Execution Version
THIS GUARANTY (this “Guaranty”) is made as of the 18th day of May, 2011, by MoneyGram
International, Inc., a Delaware corporation (“Holdco”), MoneyGram Payment Systems, Inc., a
Delaware corporation (“Payment Systems”) and MoneyGram of New York LLC, a Delaware limited
liability company (“MGI NY”; Holdco, Payment Systems, MGI NY and each Person who becomes a
party to this Guaranty by execution of a supplement in the form of Exhibit A hereto, the
“Guarantors” and each, individually, a “Guarantor”), in favor of the Administrative
Agent, for the benefit of the Administrative Agent, the Collateral Agent and the Lenders under the
Credit Agreement referred to below.
WITNESSETH:
WHEREAS, Holdco, the Borrower, the Administrative Agent, and certain other Lenders are
contemporaneously herewith entering into a certain Credit Agreement dated as of the date hereof (as
the same may be amended, restated, amended and restated or modified from time to time, the
“Credit Agreement”), providing, subject to the terms and conditions thereof, for extensions
of credit to be made by the Lenders to the Borrower;
WHEREAS, it is a condition precedent to the Administrative Agent and the Lenders executing the
Credit Agreement that each of the Guarantors execute and deliver this Guaranty, whereby each of the
Guarantors shall agree to guarantee payment when due, subject to Section 10 hereof, of all
Guaranteed Obligations, as defined below; and
WHEREAS, in consideration of the benefits to Holdco of the credit to be extended pursuant to
the Credit Agreement, the financial and other support that the Borrower has provided, and such
financial and other support as the Borrower may in the future provide, to the Guarantors, and in
order to induce the Lenders and the Administrative Agent to enter into the Credit Agreement, the
Hedge Banks to enter into one or more Rate Management Transactions with any Loan Party and the Cash
Management Banks to enter into one or more Cash Management Agreements with any Loan Party, and
because each Guarantor has determined that executing this Guaranty is in its interest and to its
financial benefit, each of the Guarantors is willing to guarantee the obligations of the Borrower
under the Credit Agreement or any Note and the other Loan Documents and the Secured Hedge
Obligations and the Secured Cash Management Obligations;
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1.1. Selected Terms Used Herein.
10
“Applicable Obligor” means, with respect to the Obligations, the Borrower, and, with
respect to any Secured Hedge Obligation or Secured Cash Management Obligation, whichever Obligor is
party to the applicable Rate Management Transaction or Cash Management Agreement, as applicable.
“Guaranteed Obligations” is defined in Section 3 below.
“Obligor” means, individually and collectively, each of the Borrower and any other
obligor in respect of a Secured Hedge Obligation or Secured Cash Management Obligation.
“Termination Date” means the first date on which (a) the Credit Agreement is
terminated, (b) the Obligations (other than contingent indemnification obligations) have been fully
and completely performed and indefeasibly satisfied, (c) the Commitments have terminated, (d) each
Rate Management Transaction with any Hedge Bank shall have terminated or expired or, with respect
to any such Rate Management Transaction with any Hedge Bank that remains in effect, the applicable
Loan Party has provided to such Hedge Bank collateral support of a kind and in an amount that is
consistent with prevailing market terms for an exposure comparable to the exposure of such
counterparty under such Rate Management Transaction and reasonably acceptable to such Hedge Bank,
and (e) all Secured Cash Management Obligations then due and payable have been paid in full.
SECTION 1.2. Terms in Credit Agreement. Other capitalized terms used herein but not
defined herein shall have the meaning set forth in the Credit Agreement.
SECTION 2.1. Representations and Warranties. Each of the Guarantors hereby reaffirms
the representations and warranties applicable to it under Sections 5.1, 5.2 and 5.3 of the Credit
Agreement (which representations and warranties are hereby made by such Guarantors and are
incorporated herein by reference and made a part of this Guaranty as if set forth herein in full).
SECTION 2.2. Covenants. Each of the Guarantors covenants that, until the Termination
Date, that it will, and, if necessary, will enable the Borrower to, fully comply with those
covenants and agreements set forth in the Credit Agreement and applicable to it.
SECTION 3. The Guaranty. Subject to Section 10 hereof, each of the Guarantors hereby
absolutely and unconditionally guarantees, as primary obligor and not as surety, the full and
punctual payment (whether at stated maturity, upon acceleration or early termination or otherwise,
and at all times thereafter) and performance of the Obligations, the Secured Hedge Obligations and
the Secured Cash Management Obligations, including without limitation any such Obligations, Secured
Hedge Obligations or Secured Cash Management Obligations incurred or accrued during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding, whether or not allowed or
allowable in such proceeding (collectively, subject to the provisions of Section 10 hereof, being
referred to collectively as the “Guaranteed Obligations”). Upon failure by the Applicable
Obligor to pay punctually any such amount, each of the Guarantors agrees that it shall forthwith on
demand pay to the Administrative Agent for the benefit of the Lenders and, if applicable, their
Affiliates, the amount not so paid at the place and in the manner specified in the
Credit
Agreement, any Note, any Rate Management Transaction with a Hedge Bank, any Cash
Management Agreement with a Cash Management Bank or the relevant Loan Document, as the case
may be. This Guaranty is a guaranty of payment and not of collection. Each of the Guarantors
waives any right to require the Lender to xxx the Applicable Obligor, any other guarantor, or any
other person obligated for all or any part of the Guaranteed Obligations, or otherwise to enforce
its payment against any collateral securing all or any part of the Guaranteed Obligations.
SECTION 4. Guaranty Unconditional. Subject to Section 10 hereof, the obligations of
each of the Guarantors hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or release in respect of any of
the Guaranteed Obligations, by operation of law or otherwise, or any obligation of any other
guarantor of any of the Guaranteed Obligations, or any default, failure or delay, willful or
otherwise, in the payment or performance of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to the Credit Agreement, any Note, any
Rate Management Transaction with a Hedge Bank, any Cash Management Agreement with a Cash
Management Bank or any other Loan Document (except in the case of a release or discharge of
such Guarantors effected pursuant to the terms of a waiver, amendment or modification of
this Guaranty in accordance with the terms hereof);
(iii) any release, nonperfection or invalidity of any direct or indirect security for any
obligation of the Applicable Obligor under the Credit Agreement, any Note, any Rate
Management Transaction with a Hedge Bank, any Cash Management Agreement with a Cash
Management Bank, any other Loan Document, or any obligations of any other guarantor of any
of the Guaranteed Obligations, or any action or failure to act by the Administrative Agent,
any Lender or any Affiliate of any Lender with respect to any collateral securing all or any
part of the Guaranteed Obligations;
(iv) any change in the corporate existence, structure or ownership of the Borrower or any
other guarantor of any of the Guaranteed Obligations, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower, or any other guarantor of
the Guaranteed Obligations, or its assets or any resulting release or discharge of any
obligation of the Borrower, or any other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which the Guarantors may have at any
time against the Borrower, any other guarantor of any of the Guaranteed Obligations, the
Administrative Agent, any Lender or any other Person, whether in connection herewith or any
unrelated transactions;
(vi) any invalidity or unenforceability relating to or against the Applicable Obligor, or
any other guarantor of any of the Guaranteed Obligations, for any reason related to the
Credit Agreement, any Rate Management Transaction with a Hedge Bank, any Cash Management
Agreement with a Cash Management Bank, any other Loan Document, or any
provision of
applicable law or regulation purporting to prohibit the payment by the
Applicable Obligor, or any other guarantor of the Guaranteed Obligations, of the principal
of or interest on any Note or any other amount payable by the Borrower under the Credit
Agreement, any Note, any Rate Management Transaction with a Hedge Bank, any Cash Management
Agreement with a Cash Management Bank or any other Loan Document; or
(vii) any other act or omission to act or delay of any kind by the Borrower, any other
guarantor of the Guaranteed Obligations, the Administrative Agent, any Lender or any other
Person or any other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of any Guarantor’s obligations
hereunder (other than the occurrence of the Termination Date).
SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In Certain
Circumstances. Each of the Guarantor’s obligations hereunder shall remain in full force and
effect until the Termination Date. If at any time any payment of the principal of or interest on
any Note or any other amount payable by the Applicable Obligor or any other party under the Credit
Agreement, any Rate Management Transaction with a Hedge Bank, any Cash Management Agreement with a
Cash Management Bank or any other Loan Document is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of the Applicable Obligor or otherwise,
each of the Guarantor’s obligations hereunder with respect to such payment shall be reinstated as
though such payment had been due but not made at such time.
SECTION 6. Waivers. Each of the Guarantors irrevocably waives acceptance hereof,
presentment, demand, protest and, to the fullest extent permitted by law, any notice not provided
for herein, as well as any requirement that at any time any action be taken by any Person against
the Applicable Obligor, any other guarantor of any of the Guaranteed Obligations, or any other
Person.
SECTION 7. Subrogation. Each of the Guarantors hereby agrees not to assert any
right, claim or cause of action, including, without limitation, a claim for subrogation,
reimbursement, indemnification or otherwise, against the Applicable Obligor arising out of or by
reason of this Guaranty or the obligations hereunder, including, without limitation, the payment or
securing or purchasing of any of the Guaranteed Obligations by any of the Guarantors unless and
until the occurrence of the Termination Date. If any amount is paid to any Guarantor on account of
subrogation rights under this Guaranty at any time when all the Guaranteed Obligations have not
been paid in full, the amount shall be held in trust by such Guarantor for the benefit of the
holders of the Guaranteed Obligations and shall be promptly paid to the Administrative Agent for
the benefit of the holders of the Guaranteed Obligations to be credited and applied to the
Guaranteed Obligations, whether matured or unmatured or absolute or contingent, in accordance with
the terms hereof and of the Loan Documents. If any Guarantor makes payment to any holder of
Guaranteed Obligations of all or any part of the Guaranteed Obligations and all the Guaranteed
Obligations are paid in full and the Loan Documents are no longer in effect, the applicable holder
of Guaranteed Obligations shall, at such Guarantor’s request, execute and deliver to such Guarantor
appropriate documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations
resulting from the payment.
SECTION 8. Subordination. Without limiting the rights of the holders of any
Guaranteed Obligation under any other agreement, any liabilities owed by any of the Applicable
Obligors to any Guarantor in connection with any extension of credit or financial accommodation by
such Guarantor to or for the account of such Applicable Obligor, including but not limited to
interest accruing at the agreed contract rate after the commencement of a bankruptcy or similar
proceeding, are hereby subordinated to the Guaranteed Obligations until the Termination Date, and
such liabilities of such Guarantor to the Applicable Obligor, if the Administrative Agent so
requests, shall be collected, enforced and received by such Guarantor as trustee for the holders of
the Guaranteed Obligations and shall be paid over to the Administrative Agent for the benefit of
such holders on account of the Guaranteed Obligations but without reducing or affecting in any
manner the liability of the Guarantor under the other provisions of this Guaranty.
SECTION 9. Stay of Acceleration. If acceleration of the time for payment of any of
the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of the
Applicable Obligor, all such amounts otherwise subject to acceleration under the terms of the
Credit Agreement, any Note, any Rate Management Transaction with a Hedge Bank, any Cash Management
Agreement with a Cash Management Bank or any other Loan Document shall nonetheless be payable by
each of the Guarantors hereunder forthwith on demand by the Administrative Agent made at the
request of the Required Lenders.
SECTION 10. Limitation on Obligations. (a) The provisions of this Guaranty are
severable, and in any action or proceeding involving any state corporate law, or any state, federal
or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors
generally, if the obligations of any Guarantor under this Guaranty would otherwise be held or
determined to be avoidable, invalid or unenforceable on account of the amount of such Guarantor’s
liability under this Guaranty, then, notwithstanding any other provision of this Guaranty to the
contrary, the amount of such liability (after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Guaranty) shall, without any further action by the
Guarantors, the Administrative Agent or any Lender, be automatically limited and reduced to the
highest amount that is valid and enforceable as determined in such action or proceeding (such
highest amount determined hereunder being the relevant Guarantor’s “Maximum Liability”).
This Section 10(a) with respect to the Maximum Liability of the Guarantors is intended solely to
preserve the rights of the Administrative Agent hereunder to the maximum extent not subject to
avoidance under applicable law, and neither the Guarantor nor any other person or entity shall have
any right or claim under this Section 10(a) with respect to the Maximum Liability, except to the
extent necessary so that the obligations of the Guarantor hereunder shall not be rendered voidable
under applicable law.
(b) Each of the Guarantors agrees that the Guaranteed Obligations may at any time and from
time to time exceed the Maximum Liability of each Guarantor, and may exceed the aggregate Maximum
Liability of all other Guarantors, without impairing this Guaranty or affecting the rights and
remedies of the Administrative Agent hereunder. Nothing in this Section 10(b) shall be
construed to
increase any Guarantor’s obligations hereunder beyond its Maximum Liability.
(c) In the event any Guarantor (a “Paying Guarantor”) shall make any payment or
payments under this Guaranty or shall suffer any loss as a result of any realization upon any
collateral granted by it to secure its obligations under this Guaranty, each other Guarantor (each
a “Non-Paying Guarantor”) shall contribute to such Paying Guarantor an amount equal to such
Non-Paying Guarantor’s “Pro Rata Share” of such payment or payments made, or losses suffered, by
such Paying Guarantor. For the purposes hereof, each Non-Paying Guarantor’s “Pro Rata Share” with
respect to any such payment or loss by a Paying Guarantor shall be determined as of the date on
which such payment or loss was made by reference to the ratio of (i) such Non-Paying Guarantor’s
Maximum Liability as of such date (without giving effect to any right to receive, or obligation to
make, any contribution hereunder) or, if such Non-Paying Guarantor’s Maximum Liability has not been
determined, the aggregate amount of all monies received by such Non-Paying Guarantor from the
Applicable Obligor after the date hereof (whether by loan, capital infusion or by other means) to
(ii) the aggregate Maximum Liability of all Guarantors hereunder (including such Paying Guarantor)
as of such date (without giving effect to any right to receive, or obligation to make, any
contribution hereunder), or to the extent that a Maximum Liability has not been determined for any
Guarantors, the aggregate amount of all monies received by such Guarantors from the Applicable
Obligor after the date hereof (whether by loan, capital infusion or by other means). Nothing in
this Section 10(c) shall affect any Guarantor’s several liability for the entire amount of the
Guaranteed Obligations (up to such Guarantor’s Maximum Liability). Each of the Guarantors
covenants and agrees that its right to receive any contribution under this Guaranty from a
Non-Paying Guarantor shall, until the Termination Date, be subordinate and junior in right of
payment to all the Guaranteed Obligations. The provisions of this Section 10(c) are for the
benefit of both the Administrative Agent and the Guarantors and may be enforced by any one, or
more, or all of them in accordance with the terms hereof.
SECTION 11. Application of Payments. All payments received by the Administrative
Agent hereunder shall be applied by the Administrative Agent to payment of the Guaranteed
Obligations in the order set forth in Section 2.24(b) of the Credit Agreement, unless a court of
competent jurisdiction shall otherwise direct.
SECTION 12. Joinder. Pursuant to Section 6.23 of the Credit Agreement, certain
Subsidiaries are from time to time required to enter into this Guaranty as a Guarantor. Upon
execution and delivery after the date hereof by the Administrative Agent and such Subsidiary of a
supplement in the form of Exhibit A hereto, such Subsidiary 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 instrument adding an additional Guarantor as a party to this Agreement shall not require the
consent of any Guarantor hereunder, of the Borrower or of any Lender. The rights and obligations
of each Guarantor hereunder shall remain in full force and effect notwithstanding the addition of
any new Guarantor as a party hereto.
SECTION 13. Notices. All notices, requests and other communications to any party
hereunder shall be given or made by telecopier or other writing and telecopied, or mailed or
delivered to the intended recipient at its address or telecopier number set forth on the signature
pages
hereof or such other address or telecopy number as such party may hereafter specify for such
purpose by notice to the Administrative Agent in accordance with the provisions of Article 13 of
the Credit Agreement. Except as otherwise provided in this Guaranty, all such communications
shall be deemed to have been duly given when transmitted by telecopier, or personally delivered or,
in the case of a mailed notice sent by certified mail return-receipt requested, on the date set
forth on the receipt (provided, that any refusal to accept any such notice shall be deemed to be
notice thereof as of the time of any such refusal), in each case given or addressed as aforesaid.
SECTION 14. No Waivers. No failure or delay by the Administrative Agent or any
Lenders in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies provided in this
Guaranty, the Credit Agreement, any Note, any Rate Management Transaction with a Hedge Bank, any
Cash Management Agreement with a Cash Management Bank and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 15. No Duty to Advise. Each of the Guarantors assumes all responsibility for
being and keeping itself informed of the Borrower’s financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the
nature, scope and extent of the risks that each of the Guarantors assumes and incurs under this
Guaranty, and agrees that neither the Administrative Agent nor any Lender has any duty to advise
any of the Guarantors of information known to it regarding those circumstances or risks.
SECTION 16. Successors and Assigns. This Guaranty is for the benefit of the
Administrative Agent and the Lenders and their respective successors and permitted assigns and in
the event of an assignment of any amounts payable under the Credit Agreement, any Note, any Rate
Management Transaction with a Hedge Bank, any Cash Management Agreement with a Cash Management Bank
or the other Loan Documents, the rights hereunder, to the extent applicable to the indebtedness so
assigned, shall be transferred with such indebtedness. This Guaranty shall be binding upon each of
the Guarantors and their respective successors and permitted assigns.
SECTION 17. Changes in Writing. Neither this Guaranty nor any provision hereof may
be changed, waived, discharged or terminated orally, but only in writing signed by each of the
Guarantors and the Administrative Agent with the consent of the Required Lenders.
SECTION 18. Costs of Enforcement. Each of the Guarantors agrees to pay all costs and
expenses including, without limitation, all reasonable and documented court costs and attorneys’
fees and expenses (limited with respect to legal expenses to the reasonable fees, disbursements and
other charges of one counsel to all the Lenders, and, if reasonably necessary, of one local counsel
in any relevant jurisdiction) paid or incurred by the Administrative Agent or any Lender or any
Affiliate of any Lender in endeavoring to collect all or any part of the Guaranteed Obligations
from, or in prosecuting any action against, the Applicable Obligor, the Guarantors or any other
guarantor of all or any part of the Guaranteed Obligations.
SECTION 19. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL. THIS
GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. EACH OF THE PARTIES HERETO HEREBY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT
SITTING IN NEW YORK, NEW YORK AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS GUARANTY (INCLUDING, WITHOUT LIMITATION, ANY OF THE OTHER LOAN DOCUMENTS) OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO
ACCEPTING THIS GUARANTY, HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 20. Taxes. etc. Section 3.05 of the Credit Agreement and all relevant
defined terms shall apply, mutatis mutandis, to all payments required to be made by any of the
Guarantors hereunder and such Section is hereby incorporated herein by reference and made a part of
this Guaranty as if set forth herein in full.
SECTION 21. Setoff. Without limiting the rights of the Administrative Agent or the
Lenders under applicable law, if all or any part of the Guaranteed Obligations is then due, whether
pursuant to the occurrence of a Default or otherwise, then the Guarantor authorizes the
Administrative Agent and the Lenders to apply any sums standing to the credit of the Guarantor with
the Administrative Agent or any Lender or any Lending Installation of the Administrative Agent or
any Lender toward the payment of the Guaranteed Obligations.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of the Guarantors has caused this Guaranty to be duly executed, under
seal, by its authorized officer as of the day and year first above written.
| MONEYGRAM INTERNATIONAL, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
| MONEYGRAM PAYMENT SYSTEMS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
| MONEYGRAM OF NEW YORK LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
Acknowledged and Agreed:
| Bank of America, N.A.,
as Administrative Agent |
||||
| By: | /s/ Xxxx Xxxx | |||
| Name: | Xxxx Xxxx | |||
| Title: | Managing Director | |||
EXHIBIT A
SUPPLEMENT NO. __________ dated as of ________________________, to the Guaranty dated as of
May 18, 2011 (as the same may be amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Guaranty”), by MoneyGram International, Inc., a Delaware
corporation (“Holdco”) and the Guarantors party thereto in favor of the Administrative
Agent and the Lenders.
Reference is made to the Credit Agreement dated as of May 18, 2011 (as amended, restated,
amended and restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Holdco, MoneyGram Payment Systems Worldwide, Inc. (the “Borrower”),
the lenders from time to time party thereto (the “Lenders”) and Bank of America, N.A., as
administrative agent (in such capacity, the “Administrative Agent”).
Capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Guaranty and the Credit Agreement.
The Guarantors have entered into the Guaranty in order to induce the Lenders to extend credit
pursuant to the Credit Agreement. Pursuant to Section 6.23 of the Credit Agreement, the
undersigned Subsidiary is required to enter into the Guaranty as a Guarantor. Section 12 of the
Guaranty provides that additional Subsidiaries of Holdco may become Guarantors under the Guaranty
by execution and delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary of Holdco (the “New Guarantor”) is executing this Supplement in accordance with
the requirements of the Credit Agreement to become a Guarantor under the Guaranty in order to
induce the Lenders to extend and continue the extension of credit pursuant to the Credit Agreement.
Accordingly, the Administrative Agent and the New Guarantor agree as follows:
SECTION 1. In accordance with Section 12 of the Guaranty, the New Guarantor by its signature
below becomes a Guarantor under the Guaranty with the same force and effect as if originally named
therein as a Guarantor and the New Guarantor hereby agrees to all the terms and warrants that the
representations and warranties made by it as a Guarantor thereunder are true and correct in all
material respects on and as of the date hereof (except to the extent such representations and
warranties expressly relate to an earlier date). Each reference to a “Guarantor” in the Guaranty
shall be deemed to include the New Guarantor. The Guaranty is hereby incorporated herein by
reference.
SECTION 2. The New Guarantor represents and warrants to the Administrative Agent and the
Lenders that this Supplement has been duly authorized, executed and delivered by it and constitutes
its legal, valid and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Supplement
shall become effective when the Administrative Agent shall have received counterparts of this
Supplement that, when taken together, bear the signatures of the New Guarantor and the
Administrative Agent.
SECTION 4. Except as expressly supplemented hereby, the Guaranty shall remain in full force
and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
SECTION 6. All communications and notices hereunder shall be in writing and given as provided
in Section 13 of the Guaranty. All communications and notices hereunder to the New Guarantor shall
be given to it at the address set forth under its signature below, with a copy to the Borrower.
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have duly executed this
Supplement to the Guaranty as of the day and year first above written
| [Name of New Guarantor], |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: | ||||
| BANK OF AMERICA, N.A., as Administrative Agent |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: | ||||
