Exhibit 10.2
GUARANTY
(Domestic)
GUARANTY, dated as of February 28, 2002, by XXXXX INDUSTRIES, INC., a
Delaware corporation (the "Parent"), XXXXX INVESTMENT COMPANY, a Delaware
corporation, XXXXX PREMIER, INC., an Arizona corporation, XXXXX SPACEMAKER, INC.
a California corporation, XXXXX RADIANT, INC. a Delaware corporation, XXXXX
DISTRIBUTION COMPANY, INC., a Delaware corporation, XXXXXXXX-XXXXXXX METALS
CORPORATION, a California corporation, XXXXX DRAINAGE PRODUCTS, INC., a Delaware
corporation, XXXXXXX VALVE, INC., a New Hampshire corporation, and JAMECO
INDUSTRIES, INC., a New York corporation (collectively, the "Guarantors" and
each individually, a "Guarantor") in favor of (i) Fleet National Bank, a
national banking association, as administrative agent (hereinafter, in such
capacity, the "Administrative Agent") for itself and the other lending
institutions (hereinafter, collectively, the "Lenders"), which are or may become
parties to a Revolving Credit Agreement, dated as of February 28, 2002 (as
amended and in effect from time to time, the "Credit Agreement"), by and among
the Parent, Xxxxx Regulator Co., a Delaware corporation (the "Domestic
Borrower"), Xxxxx Industries Europe B.V., a private company with limited
liability organized under the laws of The Netherlands (the "Foreign Borrower"
and collectively with the Domestic Borrower, the "Borrowers"), the Lenders and
the Administrative Agent and (ii) each of the Lenders.
WHEREAS, the Borrowers and the Guarantors are members of a group of
related entities, the success of any one of which is dependent in part on the
success of the other members of such group;
WHEREAS, each Guarantor expects to receive substantial direct and indirect
benefits from the extensions of credit to the Borrowers by the Lenders pursuant
to the Credit Agreement (which benefits are hereby acknowledged);
WHEREAS, it is a condition precedent to the Lenders' making any loans or
otherwise extending credit to the Borrowers under the Credit Agreement that each
Guarantor execute and deliver to the Administrative Agent, for the benefit of
the Lenders and the Administrative Agent, a guaranty substantially in the form
hereof; and
WHEREAS, each Guarantor wishes to jointly and severally guaranty the
Borrowers' obligations to the Lenders and the Administrative Agent under or in
respect of the Credit Agreement as provided herein;
NOW, THEREFORE, each Guarantor hereby agrees with the Lenders and the
Administrative Agent as follows:
1. Definitions. The term "Obligations" and all other capitalized terms
used herein without definition shall have the respective meanings provided
therefor in the Credit Agreement.
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2. Guaranty of Payment and Performance. Each Guarantor hereby jointly and
severally guarantees to the Lenders and the Administrative Agent the full and
punctual payment when due (whether at stated maturity, by required pre-payment,
by acceleration or otherwise), as well as the performance, of all of the
Obligations including all such which would become due but for the operation of
the automatic stay pursuant to ss.362(a) of the Federal Bankruptcy Code and the
operation of ss.ss.502(b) and 506(b) of the Federal Bankruptcy Code. This
Guaranty is an absolute, unconditional and continuing guaranty of the full and
punctual payment and performance of all of the Obligations and not of their
collectibility only and is in no way conditioned upon any requirement that the
Administrative Agent or any Lender first attempt to collect any of the
Obligations from the Borrowers or resort to any collateral security or other
means of obtaining payment. Should the Borrowers default in the payment or
performance of any of the Obligations, the obligations of each Guarantor
hereunder with respect to such Obligations in default shall, upon demand by the
Administrative Agent, become immediately due and payable to the Administrative
Agent, for the benefit of the Lenders and the Administrative Agent, without
demand or notice of any nature, all of which are expressly waived by such
Guarantor. Payments by any Guarantor hereunder may be required by the
Administrative Agent on any number of occasions. All payments by any Guarantor
hereunder shall be made to the Administrative Agent, in the manner and at the
place of payment specified therefor in the Credit Agreement, for the account of
the Lenders and the Administrative Agent. Each Guarantor acknowledges and agrees
that all payments by such Guarantor hereunder shall be made without recoupment,
setoff or counterclaim and free and clear of and without deduction for any
taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or hereafter
imposed or levied by any jurisdiction or any political subdivision thereof or
taxing or other authority therein unless such Guarantor is compelled by law to
make such deduction or withholding. If any such obligation is imposed upon any
Guarantor with respect to any amount payable by it hereunder, such Guarantor
will pay to the Administrative Agent, for the account of the Lenders or (as the
case may be) the Administrative Agent, on the date on which such amount is due
and payable hereunder, such additional amount in Dollars as shall be necessary
to enable the Lenders or the Administrative Agent to receive the same net amount
which the Lenders or the Administrative Agent would have received on such due
date had no such obligation been imposed upon such Guarantor. Each Guarantor
will deliver promptly to the Administrative Agent certificates or other valid
vouchers for all taxes or other charges deducted from or paid with respect to
payments made by such Guarantor hereunder.
3. Guarantors' Agreement to Pay Enforcement Costs, etc. Each Guarantor
further agrees, as the principal obligor and not as a guarantor only, to jointly
and severally pay to the Administrative Agent, on demand, all reasonable costs
and expenses (including court costs and legal expenses) incurred or expended by
the Administrative Agent or any Lender in connection with the enforcement of
this Guaranty and the Obligations, together with interest on amounts recoverable
under this ss.3 from the time when such amounts become due until payment,
whether before or after judgment, at the rate of interest for overdue principal
set forth in the Credit Agreement, provided that if such interest exceeds the
maximum amount permitted to be paid under applicable law, then such interest
shall be reduced to such maximum permitted amount.
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4. Waivers by Guarantors; Lenders' Freedom to Act. Each Guarantor agrees
that the Obligations will be paid and performed strictly in accordance with
their respective terms, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent or any Lender with respect thereto. Each
Guarantor waives promptness, diligences, presentment, demand, protest, notice of
acceptance, notice of any Obligations incurred and all other notices of any
kind, all defenses which may be available by virtue of any valuation, stay,
moratorium law or other similar law now or hereafter in effect, any right to
require the marshalling of assets of the Borrowers or any other entity or other
person primarily or secondarily liable with respect to any of the Obligations,
and all suretyship defenses generally. Without limiting the generality of the
foregoing, each Guarantor agrees to the provisions of any instrument evidencing,
securing or otherwise executed in connection with any Obligation and agrees that
the obligations of such Guarantor hereunder shall not be released or discharged,
in whole or in part, or otherwise affected by (i) the failure of the
Administrative Agent or any Lender to assert any claim or demand or to enforce
any right or remedy against the Borrowers or any other entity or other person
primarily or secondarily liable with respect to any of the Obligations; (ii) any
extensions, compromise, refinancing, consolidation or renewals of any
Obligation; (iii) any change in the time, place or manner of payment of any of
the Obligations or any rescissions, waivers, compromise, refinancing,
consolidation or other amendments or modifications of any of the terms or
provisions of the Credit Agreement, the Revolving Credit Notes, the other Loan
Documents or any other agreement evidencing, securing or otherwise executed in
connection with any of the Obligations; (iv) the addition, substitution or
release of any entity or other person primarily or secondarily liable for any
Obligation; (v) the adequacy of any rights which the Administrative Agent or any
Lender may have against any collateral security or other means of obtaining
repayment of any of the Obligations; (vi) the impairment of any collateral
securing any of the Obligations, including without limitation the failure to
perfect or preserve any rights which the Administrative Agent or any Lender
might have in such collateral security or the substitution, exchange, surrender,
release, loss or destruction of any such collateral security; or (vii) any other
act or omission which might in any manner or to any extent vary the risk of such
Guarantor or otherwise operate as a release or discharge of such Guarantor, all
of which may be done without notice to such Guarantor. To the fullest extent
permitted by law, each Guarantor hereby expressly waives any and all rights or
defenses arising by reason of (A) any "one action" or "anti-deficiency" law
which would otherwise prevent the Administrative Agent or any Lender from
bringing any action, including any claim for a deficiency, or exercising any
other right or remedy (including any right of set-off), against such Guarantor
before or after the Administrative Agent's or such Lender's commencement or
completion of any foreclosure action, whether judicially, by exercise of power
of sale or otherwise, or (B) any other law which in any other way would
otherwise require any election of remedies by the Administrative Agent or any
Lender.
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5. Unenforceability of Obligations Against Borrowers. If for any reason
any Borrower has no legal existence or is under no legal obligation to discharge
any of the Obligations, or if any of the Obligations have become irrecoverable
from any Borrower by reason of such Borrower's insolvency, bankruptcy or
reorganization or by other operation of law or for any other reason, this
Guaranty shall nevertheless be binding on each Guarantor to the same extent as
if such Guarantor at all times had been the principal obligor on all such
Obligations. In the event that acceleration of the time for payment of any of
the Obligations is stayed upon the insolvency, bankruptcy or reorganization of
any Borrower, or for any other reason, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, the Revolving Credit
Notes, the other Loan Documents or any other agreement evidencing, securing or
otherwise executed in connection with any Obligation shall be immediately due
and payable by each Guarantor.
6. Subrogation; Subordination.
6.1. Waiver of Rights Against Borrowers. Until the final payment and
performance in full of all of the Obligations, (a) each Guarantor shall
not exercise and hereby subordinates any rights against each of the
Borrowers arising as a result of payment by such Guarantor hereunder, by
way of subrogation, reimbursement, restitution, contribution or otherwise,
and will not prove any claim in competition with the Administrative Agent
or any Lender in respect of any payment hereunder in any bankruptcy,
insolvency or reorganization case or proceedings of any nature; (b) none
of the Guarantors will claim any setoff, recoupment or counterclaim
against any Borrower in respect of any liability of such Guarantor to such
Borrower; and (c) each Guarantor waives any benefit of and any right to
participate in any collateral security which may be held by the
Administrative Agent or any Lender.
6.2. Subordination. The payment of any amounts due with respect to
any indebtedness of the Borrowers for money borrowed or credit received
now or hereafter owed to any Guarantor is hereby subordinated to the prior
payment in full of all of the Obligations. Each Guarantor agrees that,
after the occurrence and during the continuance of any default in the
payment or performance of any of the Obligations, none of the Guarantors
will demand, xxx for or otherwise attempt to collect any such indebtedness
of any Borrower to any Guarantor until all of the Obligations shall have
been paid in full. If, notwithstanding the foregoing sentence, any
Guarantor shall collect, enforce or receive any amounts in respect of such
indebtedness while any Obligations are still outstanding, such amounts
shall be collected, enforced and received by such Guarantor as trustee for
the Lenders and the Administrative Agent and be paid over to the
Administrative Agent, for the benefit of the Lenders and the
Administrative Agent, on account of the Obligations without affecting in
any manner the liability of such Guarantor under the other provisions of
this Guaranty.
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6.3. Provisions Supplemental. The provisions of this ss.6 shall be
supplemental to and not in derogation of any rights and remedies of the
Lenders and the Administrative Agent under any separate subordination
agreement which the Administrative Agent may at any time and from time to
time enter into with any Guarantor for the benefit of the Lenders and the
Administrative Agent.
7. Security; Setoff. Each Guarantor grants to each of the Administrative
Agent and the Lenders, as security for the full and punctual payment and
performance of all of such Guarantor's obligations hereunder, a continuing lien
on and security interest in all securities or other property belonging to such
Guarantor now or hereafter held by the Administrative Agent or such Lender and
in all deposits (general or special, time or demand, provisional or final) and
other sums credited by or due from the Administrative Agent or such Lender to
such Guarantor or subject to withdrawal by such Guarantor. Regardless of the
adequacy of any collateral security or other means of obtaining payment of any
of the Obligations, each of the Administrative Agent and the Lenders is hereby
authorized at any time and from time to time following the occurrence and during
the continuance of an Event of Default, without notice to any Guarantor (any
such notice being expressly waived by such Guarantor) and to the fullest extent
permitted by law, to set off and apply such deposits and other sums against the
obligations of such Guarantor under this Guaranty, whether or not the
Administrative Agent or such Lender shall have made any demand under this
Guaranty and although such obligations may be contingent or unmatured.
8. Further Assurances. Each Guarantor agrees that it will from time to
time, at the request of the Administrative Agent, do all such things and execute
all such documents as the Administrative Agent may consider necessary or
desirable to give full effect to this Guaranty and to perfect and preserve the
rights and powers of the Lenders and the Administrative Agent hereunder. Each
Guarantor acknowledges and confirms that such Guarantor itself has established
its own adequate means of obtaining from the Borrowers on a continuing basis all
information desired by such Guarantor concerning the financial condition of the
Borrowers and that such Guarantor will look to the Borrowers and not to the
Administrative Agent or any Lender in order for such Guarantor to keep
adequately informed of changes in the Borrowers' financial condition.
9. Termination; Reinstatement. With respect to any Guarantor, this
Guaranty shall remain in full force and effect until the Administrative Agent is
given written notice of such Guarantor's intention to discontinue this Guaranty,
notwithstanding any intermediate or temporary payment or settlement of the whole
or any part of the Obligations. No such notice shall be effective unless
received and acknowledged by an officer of the Administrative Agent at the
address of the Administrative Agent for notices set forth in ss.15.6 of the
Credit Agreement. No such notice shall affect any rights of the Administrative
Agent or any Lender hereunder, including without limitation the rights set forth
in ss.ss.4 and 6, with respect to any Obligations incurred or accrued prior to
the receipt of such notice or any Obligations incurred or accrued pursuant to
any contract or commitment in existence prior to such receipt. This Guaranty
shall continue to be effective or be reinstated, notwithstanding any such
notice, if at any time any payment made or value received with respect to any
Obligation is rescinded or must otherwise be returned by the Administrative
Agent or any Lender upon the insolvency, bankruptcy or reorganization of any
Borrower, or otherwise, all as though such payment had not been made or value
received.
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10. Successors and Assigns. This Guaranty shall be binding upon each
Guarantor, its successors and assigns, and shall inure to the benefit of the
Administrative Agent and the Lenders and their respective successors,
transferees and assigns. Without limiting the generality of the foregoing
sentence, each Lender may assign or otherwise transfer the Credit Agreement, the
Revolving Credit Notes, the other Loan Documents or any other agreement or note
held by it evidencing, securing or otherwise executed in connection with the
Obligations, or sell participations in any interest therein, to any other entity
or other person, and such other entity or other person shall thereupon become
vested, to the extent set forth in the agreement evidencing such assignment,
transfer or participation, with all the rights in respect thereof granted to
such Lender herein, all in accordance with ss.14 of the Credit Agreement. None
of the Guarantors may assign any of its obligations hereunder.
11. Amendments and Waivers. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by any Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Administrative
Agent with the consent of the Required Lenders. No failure on the part of the
Administrative Agent or any Lender to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right.
12. Notices. All notices and other communications called for hereunder
shall be made in writing and, unless otherwise specifically provided herein,
shall be deemed to have been duly made or given when delivered by hand or mailed
first class, postage prepaid, or, in the case of telegraphic or telexed notice,
when transmitted, answer back received, addressed as follows: if to any
Guarantor or the Administrative Agent, at the address for notices to such
Guarantor or the Administrative Agent set forth in ss.15.6 of the Credit
Agreement, or at such address as any party may designate in writing to the
other.
13. Governing Law; Consent to Jurisdiction. THIS GUARANTY IS INTENDED TO
TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. Each Guarantor
agrees that any suit for the enforcement of this Guaranty may be brought in the
courts of the Commonwealth of Massachusetts or any federal court sitting therein
and consents to the nonexclusive jurisdiction of such court and to service of
process in any such suit being made upon such Guarantor by mail at the address
specified by reference in ss.12. Each Guarantor hereby waives any objection that
it may now or hereafter have to the venue of any such suit or any such court or
that such suit was brought in an inconvenient court.
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14. Waiver of Jury Trial. EACH GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
each Guarantor hereby waives any right which it may have to claim or recover in
any litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. Each Guarantor (i) certifies that neither the Administrative
Agent or any Lender nor any representative, agent or attorney of the
Administrative Agent or any Lender has represented, expressly or otherwise, that
the Administrative Agent or any Lender would not, in the event of litigation,
seek to enforce the foregoing waivers and (ii) acknowledges that, in entering
into the Credit Agreement and the other Loan Documents to which the
Administrative Agent or any Lender is a party, the Administrative Agent and the
Lenders are relying upon, among other things, the waivers and certifications
contained in this ss.14.
15. Miscellaneous. This Guaranty constitutes the entire agreement of each
Guarantor with respect to the matters set forth herein. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other agreement, and this Guaranty shall be in addition to any other
guaranty of or collateral security for any of the Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for the
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms defined.
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed
and delivered as an instrument under seal as of the date first above written.
XXXXX INDUSTRIES, INC.
By: _______________________________
Title:
XXXXX PREMIER, INC.
By: _______________________________
Title:
XXXXX SPACEMAKER, INC.
By: _______________________________
Title:
XXXXX RADIANT, INC.
By: _______________________________
Title:
XXXXXXXX-XXXXXXX METALS CORPORATION
By: _______________________________
Title:
XXXXX DRAINAGE PRODUCTS, INC.
By: _______________________________
Title:
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XXXXXXX XXXXX, INC.
By: _______________________________
Title:
XXXXX DISTRIBUTION COMPANY, INC.
By: _______________________________
Title:
JAMECO INDUSTRIES, INC.
By: _______________________________
Title:
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XXXXX INVESTMENT COMPANY
By: _______________________________
Title:
