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EXHIBIT 10.8
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XXXXXXX CANADA GUARANTEE
Made as of March 24, 2000
Between
THE XXXXXXX PIANO COMPANY (CANADA) LIMITED,
a corporation incorporated under the laws of Canada
("GUARANTOR")
and
GENERAL ELECTRIC CAPITAL CORPORATION,
a New York corporation, individually and as agent for
itself and the Lenders signatory to the Credit Agreement
hereinafter defined
("AGENT")
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[XxXXXXXX XXXXX LOGO]
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TABLE OF CONTENTS
RECITALS..........................................................................................................1
SECTION 1 - INTERPRETATION........................................................................................1
1.1 Definitions.......................................................................................1
(1) Borrower..................................................................................1
(2) Business Day..............................................................................2
(3) Guarantee.................................................................................2
(4) Guaranteed Obligations....................................................................2
(5) Guaranteed Parties........................................................................2
(6) Lenders...................................................................................2
(7) Person....................................................................................2
(8) Tax and Taxes.............................................................................2
1.2 Other Defined Terms...............................................................................2
1.3 References........................................................................................2
1.4 Rules of Interpretation...........................................................................2
SECTION 2 - GUARANTEE.............................................................................................2
SECTION 3 - PAYMENT...............................................................................................3
3.1 Payment on Demand.................................................................................3
3.2 No Set-Off........................................................................................3
3.3 Taxes.............................................................................................3
3.4 Tax Gross-up......................................................................................3
SECTION 4 - OBLIGATIONS ABSOLUTE..................................................................................3
SECTION 5 - INDEMNITY.............................................................................................4
SECTION 6 - OBLIGATIONS CONTINUING................................................................................4
6.1 No Reduction......................................................................................4
6.2 Effect of Rescission..............................................................................4
SECTION 7 - OBLIGATIONS NOT AFFECTED..............................................................................4
7.1 Obligations Not Affected..........................................................................4
7.2 Waiver............................................................................................5
7.3 No Obligation to Take Action Against Borrower.....................................................6
7.4 Dealing With Borrower and Others..................................................................6
7.5 Acknowledgement...................................................................................6
7.6 Accounts Stated...................................................................................7
7.7 Postponement......................................................................................7
SECTION 8 - REPRESENTATIONS AND WARRANTIES OF GUARANTOR...........................................................7
8.1 Representations and Warranties....................................................................7
SECTION 9 - GENERAL...............................................................................................8
9.1 Notices...........................................................................................8
9.2 Successor Agent...................................................................................9
9.3 Judgment Currency.................................................................................9
9.4 Applicable Law...................................................................................10
(i)
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9.5 Jurisdiction.....................................................................................10
9.6 Costs and Expenses...............................................................................10
9.7 No Waiver, Cumulative Remedies...................................................................11
9.8 Waiver of Rights of Subrogation, Reimbursement, Etc..............................................11
9.9 Guarantee in Addition to Other Obligations.......................................................11
9.10 Entire Agreement.................................................................................11
9.11 Severability.....................................................................................12
9.12 Successors and Assignees.........................................................................12
(ii)
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XXXXXXX CANADA GUARANTEE
This Guarantee is made as of March 24, 2000, between
THE XXXXXXX PIANO COMPANY (CANADA) LIMITED,
a corporation incorporated under the laws of Canada,
("Guarantor")
and
GENERAL ELECTRIC CAPITAL CORPORATION,
(together with its successors and assigns, "Agent")
RECITALS
A. Pursuant to that certain Credit Agreement dated as of the date hereof among
Xxxxxxx Piano & Organ Company ("BORROWER"), the other Persons named therein as
Credit Parties, Agent and the Persons named therein as Lenders (including all
annexes, exhibits and schedules thereto, as from time to time amended, restated,
supplemented and otherwise modified, the "CREDIT AGREEMENT"), Lenders have
agreed to make Loans to Borrower and to incur Letter of Credit Obligations on
behalf of Borrower.
B. Guarantor is a direct wholly-owned subsidiary of Borrower.
C. In connection with making the Loans and incurring Letter of Credit
Obligations as provided for in the Credit Agreement, and as a condition
precedent thereto, Lenders require that Guarantor shall have executed and
delivered a guarantee of the obligations of Borrower under the Credit Agreement
and the other Loan Documents.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce Lenders to provide the Loans and other
financial accommodations under the Credit Agreement, it is agreed as follows:
SECTION 1 - INTERPRETATION
1.1 DEFINITIONS. In this Guarantee:
(1) BORROWER has the meaning given to it in paragraph A of the Recitals.
(2) BUSINESS DAY means any day that is not (i) a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the State of New York, or
(ii) a day on which Agent is not open for business.
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(3) GUARANTEE means this Xxxxxxx Canada Guarantee, as amended, restated,
supplemented and otherwise modified from time to time.
(4) GUARANTEED OBLIGATIONS has the meaning given to it in Section 2 of this
Guarantee.
(5) GUARANTEED PARTIES has the meaning given to it in Section 2 of this
Guarantee.
(6) LENDERS has the meaning given to it in the Credit Agreement.
(7) PERSON has the meaning given to it in Section 7.1(1) of this Guarantee.
(8) TAX and TAXES each has the meaning given to it in Section 3.2(2) of this
Guarantee.
1.2 OTHER DEFINED TERMS. Capitalized terms used herein and not otherwise defined
have the meanings given to them in the Credit Agreement.
1.3 REFERENCES. Unless something in the subject matter or context is
inconsistent therewith, all references to Sections are to sections and
subsections of this Guarantee. The words "hereto", "herein", "hereof",
"hereunder" and similar expressions refer to this Guarantee and not to any
particular Section, paragraph or other portion hereof.
1.4 RULES OF INTERPRETATION. In this Guarantee, unless otherwise specifically
provided, the singular includes the plural and vice versa and "in writing" or
"written" includes printing, typewriting or any electronic means of
communication capable of being visibly reproduced at the point of reception,
including telecopier.
SECTION 2 - GUARANTEE
Guarantor hereby irrevocably and unconditionally guarantees to Agent
for the benefit of each of the Lenders and Agent and their respective
successors, transferees and assigns (collectively, the "GUARANTEED PARTIES") the
punctual and complete payment and satisfaction when due (whether at stated
maturity, by acceleration or otherwise), and at all times thereafter, of all the
indebtedness, liabilities and obligations of Borrower, present and future,
direct and indirect, absolute and contingent, matured and unmatured, at any time
or from time to time existing or arising under or by virtue of or otherwise in
connection with the Credit Agreement and any other Loan Documents to which
Borrower is party which are or may become at any time and from time to time
owing or payable by Borrower to the Guaranteed Parties, or any of them, or which
remain owing and unpaid to the Guaranteed Parties, or any of them (the
"GUARANTEED OBLIGATIONS").
SECTION 3 - PAYMENT
3.1 PAYMENT ON DEMAND. Guarantor agrees to make immediate payment to the
Guaranteed Parties, or any of them, of all Guaranteed Obligations owing or
payable at that time to the Guaranteed Parties, or any of them, upon demand for
payment therefor by Agent to Guarantor. Any payment made under this Guarantee
shall be applied in reduction of the Guaranteed Obligations, as contemplated by
the Credit Agreement.
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3.2 NO SET-OFF. Each payment to be made by Guarantor hereunder in respect of the
Guaranteed Obligations shall be payable in the currency or currencies in which
such Guaranteed Obligations are denominated, and shall be made:
(1) without set-off or counterclaim; and
(2) free and clear of and without deduction or withholding for or on account of
any present and future taxes, levies, imposts, stamp taxes, duties, charges to
tax, fees, deductions, withholdings and any conditions or restrictions resulting
in charges to tax and all penalties, interest and other payments on or in
respect thereof ("TAX" or "TAXES") unless Guarantor is compelled by law to make
payment subject to such Taxes.
3.3 TAXES. All Taxes in respect of this Guarantee or any amounts payable or paid
under this Guarantee shall be paid by Guarantor when due and, in any event,
prior to the date on which penalties attach thereto. Guarantor will indemnify
each of the Guaranteed Parties against and in respect of all such Taxes.
3.4 TAX GROSS-UP. Without limiting the generality of the foregoing, if any Taxes
(other than those imposed on or measured by the net income of Agent or a Lender
by the jurisdictions under the laws of which Agent or such Lender is organized
or is resident or carries on business) or amounts in respect thereof must be
deducted or withheld from any amounts payable or paid by Guarantor hereunder,
Guarantor shall pay such additional amounts as may be necessary to ensure that
each of the Guaranteed Parties receives a net amount equal to the full amount
which it would have received had payment (including of any additional amounts
payable under this Section 3.4) not been made subject to such Taxes. Within
thirty (30) days of each payment by Guarantor hereunder of Taxes or in respect
of Taxes, Guarantor shall deliver to Agent satisfactory evidence (including
originals, or certified copies, of all relevant receipts) that such Taxes have
been duly remitted to the appropriate authority or authorities.
SECTION 4 - OBLIGATIONS ABSOLUTE
The obligations of Guarantor hereunder are and shall be absolute and
unconditional.
SECTION 5 - INDEMNITY
As an original and independent obligation under this Guarantee,
Guarantor shall:
(1) indemnify each of the Guaranteed Parties and keep each of the Guaranteed
Parties indemnified against all costs, losses, expenses and liabilities of
whatever kind resulting from the failure by Borrower to make due and punctual
payment of any of the Guaranteed Obligations or resulting from any of the
Guaranteed Obligations being or becoming void, voidable, unenforceable or
ineffective against Borrower (including, but without limitation, all legal and
other costs, charges and expenses incurred by the Guaranteed Parties, or any of
them, in connection with preserving or enforcing, or attempting to preserve or
enforce, its rights under this Guarantee); and
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(2) pay on demand the amount of such costs, losses, expenses and liabilities
whether or not any of the Guaranteed Parties have attempted to enforce any
rights against Borrower or any other Person or otherwise.
SECTION 6 - OBLIGATIONS CONTINUING
6.1 NO REDUCTION. The obligations of Guarantor hereunder shall be continuing and
shall remain in full force and effect so long as any obligations of Borrower
under the Credit Agreement remain outstanding and until all the Guaranteed
Obligations have been paid and satisfied in full. The obligations of Guarantor
hereunder shall not be satisfied, reduced, affected or discharged by any
intermediate payment, settlement or satisfaction of the whole or any part of the
principal, interest, fees and other monies or amounts which may at any time be
or become owing or payable under or by virtue of or otherwise in connection with
the Guaranteed Obligations or the Loan Documents.
6.2 EFFECT OF RESCISSION. The obligations of Guarantor hereunder shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
payment which would otherwise have reduced the obligations of Guarantor
hereunder (whether such payment shall have been by or on behalf of Borrower, or
by or on behalf of Guarantor) is rescinded or reclaimed from any of the
Guaranteed Parties upon the insolvency, bankruptcy, liquidation or
reorganization of Borrower or Guarantor or otherwise, all as though such payment
had not been made.
SECTION 7 - OBLIGATIONS NOT AFFECTED
7.1 OBLIGATIONS NOT AFFECTED. The obligations of Guarantor hereunder shall not
be affected or impaired by any act, omission, matter or thing whatsoever,
occurring before, upon or after any demand for payment hereunder (and whether or
not known to Guarantor or any of the Guaranteed Parties) which, but for this
provision, might constitute a whole or partial defence to a claim against
Guarantor hereunder or might operate to release or otherwise exonerate Guarantor
from any of its obligations hereunder or otherwise affect such obligations,
whether occasioned by default of any of the Guaranteed Parties or otherwise,
including, without limitation:
(1) any limitation of status or power, disability, incapacity or other
circumstance relating to Borrower, or any individual, partnership, other
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental body or other entity of whatever nature
(each, a "PERSON"), including any insolvency, bankruptcy, liquidation,
reorganization, readjustment, composition, dissolution, winding-up or other
proceeding involving or affecting Borrower, Guarantor, any other Credit Party or
any other Person;
(2) any irregularity, defect, unenforceability or invalidity in respect of any
indebtedness or other obligation of Borrower, any other Credit Party or any
other Person under the Loan Documents or any other document or instrument;
(3) any failure of Borrower, any other Credit Party or any other Person, whether
or not without fault on their part, to perform or comply with any of the
provisions of the Loan Documents or to give notice thereof to Guarantor;
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(4) the taking or enforcing or exercising or the refusal or neglect to take or
enforce or exercise any right or remedy against Borrower, any other Credit Party
or any other Person or their respective assets, or the release or discharge of
any such right or remedies;
(5) the granting of time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to Borrower, any other
Credit Party or any other Person;
(6) any amendment, variation, modification, supplement or replacement of the
Loan Documents or any other document or instrument;
(7) any change in the ownership, control, name, objects, businesses, assets,
capital structure or constitution of Borrower, Guarantor, any other Credit Party
or any other Person;
(8) any merger or amalgamation of Borrower, Guarantor or any other Credit Party
with any Person or Persons;
(9) the occurrence of any change in the laws, rules, regulations or ordinances
of any jurisdiction or by any present or future action of any governmental body
or court amending, varying, reducing or otherwise affecting, or purporting to
amend, vary, reduce or otherwise affect, any of the Guaranteed Obligations or
the obligations of Guarantor under this Guarantee;
(10) the existence of any claim, set-off or other rights which Guarantor may
have at any time against Borrower, the Guaranteed Parties, any other Credit
Party or any other Person, or which Borrower may have at any time against the
Guaranteed Parties, whether in connection with the Loan Documents or otherwise;
and
(11) any other circumstance (other than by complete, irrevocable payment) that
might otherwise constitute a legal or equitable discharge or defence of Borrower
under the Loan Documents, or of Guarantor in respect of its guarantee hereunder.
7.2 WAIVER. Without in any way limiting the provisions of Section 7.1 of this
Guarantee, Guarantor hereby waives notice of acceptance hereof, notice of any
liability of Guarantor hereunder, notice or proof of reliance by the Guaranteed
Parties upon the obligations of Guarantor hereunder, and diligence, presentment,
demand for payment on Borrower, protest, notice of dishonour or non-payment of
any of the Guaranteed Obligations, or other notice or formalities to Borrower,
of any kind whatsoever.
7.3 NO OBLIGATION TO TAKE ACTION AGAINST BORROWER. Neither Agent nor any of the
other Guaranteed Parties shall have any obligation to enforce any rights or
remedies or to take any other steps against Borrower, any other Credit Party or
any other Person or any property of Borrower, any other Credit Party or any
other Person before Agent is entitled to demand payment and performance by
Guarantor of its liabilities and obligations under this Guarantee, and Guarantor
hereby waives all benefit of discussion. The obligations of Guarantor hereunder
are independent of the Guaranteed Obligations and a separate action or actions
may be brought and prosecuted against Guarantor to enforce this Guarantee,
irrespective of whether any action is brought against Borrower or whether
Borrower is joined in any such action or actions.
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7.4 DEALING WITH BORROWER AND OTHERS. The Guaranteed Parties, without releasing,
discharging, limiting or otherwise affecting in whole or in part Guarantor's
obligations and liabilities hereunder and without the consent of or notice to
Guarantor, may:
(1) grant time, renewals, extensions, compromises, concessions, waivers,
releases, discharges and other indulgences to Borrower, any other Credit Party
or any other Person;
(2) amend, vary, modify, supplement or replace any Loan Document or any other
related document or instrument;
(3) take or abstain from taking securities or collateral from Borrower or any
other Credit Party, or from perfecting securities or collateral of Borrower or
any other Credit Party;
(4) release, discharge, compromise, realize, enforce or otherwise deal with or
do any act or thing in respect of (with or without consideration) any and all
collateral, mortgages or other security given by Borrower, any other Credit
Party or any third party with respect to the obligations or matters contemplated
by the Credit Agreement;
(5) accept compromises or arrangements from Borrower or any other Credit Party;
(6) apply all monies at any time received from Borrower or any other Credit
Party, or from securities upon such part of the Guaranteed Obligations as they
may see fit or change any such application in whole or in part from time to time
as they may see fit; and
(7) otherwise deal with, or waive or modify their right to deal with, Borrower
or any other Credit Party, and all other Persons and securities as they may see
fit.
7.5 ACKNOWLEDGEMENT. Guarantor hereby acknowledges communication of the terms of
the Loan Documents and of all the provisions therein contained and consents to
and approves the same.
7.6 ACCOUNTS STATED. Guarantor shall be bound by any account settled between
Borrower and the Guaranteed Parties, and if no such account has been so settled
immediately before demand for payment under this Guarantee, any account stated
by Agent shall be accepted by Guarantor as prima facie evidence in the absence
of manifest error of the amount which at the date of the account so stated is
due by Borrower to the Guaranteed Parties or remains unpaid by Borrower to the
Guaranteed Parties.
7.7 POSTPONEMENT. Until the Guaranteed Obligations are paid and otherwise
satisfied in full and Guarantor has satisfied all of its obligations pursuant to
this Guarantee including, without limitation, pursuant to Section 3 of this
Guarantee, all indebtedness and liabilities, present and future, of Borrower to
Guarantor are hereby postponed to the liabilities to the Guaranteed Parties and
all moneys received by Guarantor in respect of the indebtedness and liabilities
of Borrower to Guarantor shall be received in trust for the Guaranteed Parties
and forthwith upon receipt shall be paid over to Agent on behalf of the
Guaranteed Parties, the whole without in any way limiting or lessening the
liability of Guarantor under the guarantee contained in this Guarantee; and this
postponement is independent of such guarantee and shall remain in full effect
notwithstanding that the liability of Guarantor under such guarantee may be
extinct; provided that nothing in this
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Section 7.7 shall restrict in any way any payments in respect of the
indebtedness and liabilities of Borrower to Guarantor which are expressly
permitted by the Credit Agreement.
SECTION 8 - REPRESENTATIONS AND WARRANTIES OF GUARANTOR
8.1 REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Agent
on behalf of the Guaranteed Parties as follows and acknowledges and confirms
that the Guaranteed Parties are relying upon such representations and
warranties:
(1) Guarantor is a corporation duly incorporated and validly existing under the
laws of Canada and has all requisite power and authority to execute, deliver and
perform this Guarantee;
(2) Guarantor is duly qualified to conduct business and is in good standing in
each other jurisdiction where its ownership or lease of property or the conduct
of its business requires such qualification, except where the failure to be so
qualified would not result in exposure to losses, damages or liabilities in
excess of $50,000;
(3) the execution, delivery and performance by Guarantor of this Guarantee is
within its corporate power, has been duly authorized by all necessary corporate
action, does not contravene any law or governmental regulation or any
contractual restriction binding on or affecting Guarantor or any of its
property;
(4) no authorization or approval or other action by, and no notice to or filing
with, any governmental body is required for the due execution, delivery and
performance by Guarantor of this Guarantee;
(5) all of the issued shares in the capital of Guarantor of every class are
owned beneficially and of record by Borrower; and
(6) this Guarantee is a legal, valid and binding obligation of Guarantor,
enforceable against Guarantor in accordance with its terms subject to (i)
applicable bankruptcy, insolvency and similar laws affecting the enforcement of
creditors' rights generally and (ii) equitable principles.
SECTION 9 - GENERAL
9.1 NOTICES. Except as otherwise provided herein, any notice, demand, request,
consent, approval, declaration or other communication to be served, given or
delivered by one party to the other in connection with or under this Guarantee
shall be in writing and shall be deemed to have been validly served, given or
delivered (a) upon transmission, when transmission occurs at or before 5:00 p.m.
on any Business Day, or, if transmission occurs after such time on such Business
Day, on the Business Day immediately following such Business Day, when sent by
telecopy or other similar facsimile transmission (with such telecopy or
facsimile promptly confirmed by delivery of a copy by personal delivery as
otherwise provided in this Section 9.1), (b) one Business Day after deposit with
a reputable overnight courier with all charges prepaid, or (c) when delivered,
if hand-delivered by messenger, all of which shall be addressed to the party to
be notified and sent to the address or facsimile number indicated below or to
such other address (or facsimile number) as may be substituted by notice given
as herein provided. The
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giving of any notice to Guarantor required hereunder may be waived in writing by
Guarantor. Communications with Guarantor under this Section 9.1 shall be
addressed as follows:
The Xxxxxxx Piano Company (Canada) Limited
c/o 0000 Xxxxxxx Xxxxx
Xxxxx, Xxxx
00000-0000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxxxxx Head & Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxx
00000
Attention: Xxxxxxx Xxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Communications with Agent under this Section 9.1 shall be addressed as follows:
General Electric Capital Corporation
000 Xxxxxxxxxxx Xxxxxx, Xxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx
00000
Attention: Xxxxxxx Piano Account Manager
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
with copies to:
O'Melveny & Xxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
and
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx
00000-0000
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Attention: Corporate Counsel - Commercial Finance
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
9.2 SUCCESSOR AGENT. In the event that Agent for the time being under the Credit
Agreement shall resign or be removed and a successor agent thereafter shall be
appointed in accordance with Section 9.7 of the Credit Agreement, then upon such
successor agent agreeing in writing to be bound by the provisions of this
Guarantee as Agent hereunder, all references herein to Agent in this Guarantee
shall be deemed to be references to such successor agent as and from such date
and such successor agent shall receive and become vested with all the rights,
powers, privileges and duties of the retiring or removed Agent and the retiring
or removed Agent shall be discharged from its further duties and obligations as
Agent under this Guarantee.
9.3 JUDGMENT CURRENCY. Without limiting and in addition to Section 1.1 of the
Credit Agreement, if for the purposes of obtaining judgment in any court in any
jurisdiction with respect to this Guarantee or any other Loan Document to which
Guarantor is party it becomes necessary to convert into the currency of such
jurisdiction (herein called the "JUDGMENT CURRENCY") any amount due hereunder in
any currency other than the Judgment Currency, then conversion shall be made at
the rate of exchange prevailing on the Business Day before the day on which
judgment is given. For this purpose, "rate of exchange" means the rate at which
Agent would, on the relevant date at or about 12:00 noon (New York time), be
prepared to sell a similar amount of such currency in New York against the
Judgment Currency. In the event that there is a change in the rate of exchange
prevailing between the Business Day before the day on which the judgment is
given and the date of payment of the amount due, Guarantor will, on the date of
payment, pay such additional amounts (if any) as may be necessary to ensure that
the amount paid on such date is the amount in the Judgment Currency which when
converted at the rate of exchange prevailing on the date of payment is the
amount then due under this Guarantee or such other applicable Loan Document in
such other currency. Any additional amount due from Guarantor under this Section
9.3 will be due as a separate debt and shall not be affected by judgment being
obtained for any other sums due under or in respect of any of the Loan
Documents.
9.4 APPLICABLE LAW. This Guarantee shall be conclusively deemed to be a contract
made under, and shall for all purposes be governed by, and construed and
interpreted in accordance with, the laws of the Province of Ontario and the
federal laws of Canada applicable therein in effect from time to time without
prejudice to or limitation of any other rights or remedies available under the
laws of any jurisdiction where property or assets of Guarantor may be found.
9.5 JURISDICTION.
(1) Guarantor irrevocably agrees that any suits, actions or proceedings arising
out of or in connection with this Guarantee (collectively "PROCEEDINGS") may be
brought in any New York State Court or U.S. Federal Court sitting in the State
of New York or in any court in the Province of Ontario and submits and attorns
to the non-exclusive jurisdiction of each such court.
(2) Guarantor irrevocably waives any objections which it may have now or
hereafter to the laying of the venue of any Proceedings in any court referred to
in paragraph (1) and any claim
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that any such Proceedings have been brought in an inconvenient forum and further
irrevocably agrees that a judgment in any Proceedings brought in any such court
shall be conclusive and binding upon Guarantor and may be enforced in any courts
to the jurisdiction of which such parties may be subject by Proceedings upon
such judgment.
(3) Nothing contained in this Section 9.5 shall limit the right of Agent or any
other Guaranteed Party to take Proceedings against Guarantor in any other court
of competent jurisdiction nor shall the taking of Proceedings in one or more
jurisdictions preclude the taking of Proceedings in any other jurisdiction,
whether concurrently or not.
(4) Guarantor hereby irrevocably consents generally to the fullest extent
permitted by law in respect of any Proceedings to the giving of any relief and
the issue of any process in connection with such Proceedings including, without
limitation, the making, enforcement or execution against any property whatsoever
(irrespective of its use or intended use) of any order or judgment which may be
made or given in such Proceedings.
(5) Guarantor hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to the Loan Documents or this Guarantee,
the transactions contemplated hereby or thereby or the actions of any Guaranteed
Party in the negotiation, administration, performance or enforcement hereof or
thereof.
9.6 COSTS AND EXPENSES. Guarantor shall pay on demand by Agent any and all
reasonable costs, fees and expenses (including, without limitation, reasonable
legal fees and expenses) incurred by Agent in enforcing any of its rights under
this Guarantee.
9.7 NO WAIVER, CUMULATIVE REMEDIES. No failure to exercise and no delay in
exercising, on the part of the Lender, any right, remedy, power or privilege
hereunder or under the Loan Documents, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder or under the Loan Documents preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein and under the Loan Documents are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.8 WAIVER OF RIGHTS OF SUBROGATION, REIMBURSEMENT, ETC. Guarantor hereby
irrevocably waives any claim or other rights that it may now or hereafter
acquire against Borrower or any other Credit Party, that arise from the
existence, payment, performance or enforcement of the Guaranteed Obligations
under this Guarantee, the Credit Agreement or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of any Guaranteed Party against Borrower or any other Credit
Party, or any collateral, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including, without limitation,
the right to take or receive from Borrower, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right; provided, however, that such waiver
shall terminate at such time, if any, as the Guaranteed Obligations and all
other amounts payable under this Guarantee have been paid in full and all
obligations of the Guaranteed Parties under the Loan Documents have
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terminated; provided that Agent shall be entitled to hold any Potential
Preference Payment (as hereafter defined) in trust for the benefit of the
Guaranteed Parties and shall forthwith pay such amount to the Guaranteed
Parties, to be credited and applied following the expiry of the potential
preference period, to the Guaranteed Obligations, whether matured or unmatured,
in accordance with the terms of the Credit Agreement. The term "POTENTIAL
PREFERENCE PAYMENT" shall mean any payment or other transfer received for the
benefit of the Guaranteed Parties for or on account of the Guaranteed
Obligations which could be avoided by a trustee in bankruptcy for Borrower, or
by or for the benefit of other creditors of Borrower as a "preference" or a
"preferential transfer" or for any other reason under any applicable bankruptcy,
insolvency or similar law now or hereafter in effect in any bankruptcy,
insolvency or similar proceeding with respect to Borrower. Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by the Credit Agreement and that the waiver
set forth in this Section 9.8 is knowingly made in contemplation of such
benefits.
9.9 GUARANTEE IN ADDITION TO OTHER OBLIGATIONS. The obligations of Guarantor
under this Guarantee are in addition to and not in substitution for any other
obligations to Agent or to any of the other Guaranteed Parties in relation to
the Loan Documents and any guarantees, indemnities or security at any time held
by or for the benefit of any of them.
9.10 ENTIRE AGREEMENT. This Guarantee, including all documents contemplated
hereby, constitutes the entire agreement between the parties with respect to the
subject matter and supersedes all prior negotiations, undertakings,
representations and understandings.
9.11 SEVERABILITY. Any provision of this Guarantee which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
9.12 SUCCESSORS AND ASSIGNEES. This Guarantee shall be binding upon and enure to
the benefit of Guarantor and Agent and the other Guaranteed Parties and their
respective successors and permitted assignees, except that Guarantor may not
assign any of its obligations hereunder.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Guarantor has caused this Guarantee to be duly
executed and delivered by its proper and duly authorized officers as of the day
and year first above written.
The parties have executed this Agreement.
THE XXXXXXX PIANO COMPANY (CANADA)
LIMITED
By: /s/ XXXXX XXXXXX
----------------------------
Xxxxx Xxxxxx
Chief Financial Officer
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ XXXXXXX XXXXXX
----------------------------
Xxxxxxx Xxxxxx
Duly Authorized Signatory
