GUARANTEE AGREEMENT made by LAM RESEARCH CORPORATION in favor of ABN AMRO BANK N.V., as Administrative Agent for the Lenders Dated as of June 16, 2006
Exhibit 10.2
EXECUTION COPY
made by
XXX RESEARCH CORPORATION
in favor of
ABN AMRO BANK N.V.,
as Administrative Agent for the Lenders
Dated as of June 16, 2006
TABLE OF CONTENTS
Page | ||||||
SECTION 1. |
DEFINED TERMS | 1 | ||||
1.1 |
Definitions | 1 | ||||
1.2 |
Other Definitional Provisions | 4 | ||||
SECTION 2. |
GUARANTEE | 4 | ||||
2.1 |
Guarantee | 4 | ||||
2.2 |
No Subrogation | 4 | ||||
2.3 |
Amendments, etc. with respect to the Obligations | 4 | ||||
2.4 |
Guarantee Absolute and Unconditional | 5 | ||||
2.5 |
Reinstatement | 5 | ||||
2.6 |
Payments | 6 | ||||
2.7 |
Cure | 6 | ||||
SECTION 3. |
REPRESENTATIONS AND WARRANTIES | 6 | ||||
3.1 |
Financial Condition | 6 | ||||
3.2 |
No Change | 6 | ||||
3.3 |
Existence; Compliance with Law | 6 | ||||
3.4 |
Power; Authorization; Enforceable Obligations | 6 | ||||
3.5 |
No Legal Bar | 7 | ||||
3.6 |
Litigation | 7 | ||||
3.7 |
No Default | 7 | ||||
3.8 |
Ownership of Property; Liens | 7 | ||||
3.9 |
Intellectual Property | 7 | ||||
3.10 |
Taxes | 7 | ||||
3.11 |
ERISA | 8 | ||||
3.12 |
Investment Company Act; Other Regulations | 8 | ||||
3.13 |
Environmental Matters | 8 | ||||
3.14 |
Accuracy of Information, etc | 9 | ||||
3.15 |
Security Documents | 9 | ||||
SECTION 4. |
AFFIRMATIVE COVENANTS | 9 | ||||
4.1 |
Financial Statements | 9 | ||||
4.2 |
Certificates; Other Information | 10 | ||||
4.3 |
Payment of Obligations | 10 | ||||
4.4 |
Maintenance of Existence; Compliance | 10 | ||||
4.5 |
Maintenance of Property; Insurance | 11 | ||||
4.6 |
Inspection of Property; Books and Records; Discussions | 11 | ||||
4.7 |
Notices | 11 | ||||
4.8 |
Environmental Laws | 11 | ||||
SECTION 5. |
NEGATIVE COVENANTS | 12 | ||||
5.1 |
Liens | 12 | ||||
5.2 |
Fundamental Changes | 13 | ||||
5.3 |
Disposition of Property | 13 | ||||
5.4 |
Transactions with Affiliates | 13 | ||||
5.5 |
Changes in Fiscal Periods | 14 | ||||
5.6 |
Lines of Business | 14 |
i
Page | ||||||
SECTION 6. |
MISCELLANEOUS | 14 | ||||
6.1 |
Amendments in Writing | 14 | ||||
6.2 |
Notices | 14 | ||||
6.3 |
No Waiver by Course of Conduct; Cumulative Remedies | 14 | ||||
6.4 |
Enforcement Expenses; Indemnification | 14 | ||||
6.5 |
Successors and Assigns | 15 | ||||
6.6 |
Set-Off | 15 | ||||
6.7 |
Counterparts | 15 | ||||
6.8 |
Severability | 15 | ||||
6.9 |
Section Headings | 15 | ||||
6.10 |
Integration | 15 | ||||
6.11 |
GOVERNING LAW | 15 | ||||
6.12 |
Submission To Jurisdiction; Waivers | 16 | ||||
6.13 |
Acknowledgements | 16 | ||||
6.14 |
Authority of Administrative Agent | 16 | ||||
6.15 |
Termination and Release | 17 | ||||
6.16 |
WAIVER OF JURY TRIAL | 17 |
ii
EXECUTION COPY
GUARANTEE AGREEMENT, dated as of June 16, 2006, made by XXX RESEARCH CORPORATION, a Delaware
corporation (the “Guarantor”), in favor of the several banks and other financial
institutions or entities (the “Lenders”) from time to time parties to the Credit Agreement, dated
as of June 16, 2006 among XXX RESEARCH INTERNATIONAL, S.A.R.L. (the “Borrower”), the
Lenders and ABN AMRO BANK N.V., as administrative agent (in such capacity, the “Administrative
Agent”) for the Lenders (as amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed to make
extensions of credit to the Borrower upon the terms and subject to the conditions set forth
therein;
WHEREAS, the Borrower is a subsidiary of the Guarantor; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrower under the Credit Agreement that the Guarantor shall have
executed and delivered this Agreement to the Administrative Agent for the benefit of the Lenders;
NOW, THEREFORE, the Guarantor hereby agrees with the Administrative Agent, for the benefit of
the Lenders, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
(b) The following terms shall have the following meanings:
“Agreement”: this Guarantee Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.
“Continuing Directors”: the directors of the Guarantor on the Closing Date, after
giving to the transactions contemplated hereby, and each other director, if, in each case, such
other director’s nomination for election to the board of directors of the Guarantor is recommended
by at least 66-2/3% of the then Continuing Directors.
“Group Member”: the Guarantor and each of its Subsidiaries.
“Guarantor Default”: any of the events specified in the defined term Guarantor Event
of Default below, whether or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
“Guarantor Event of Default”: any of the following events, provided that any
requirement for the giving of notice, the lapse of time, or both, has been satisfied:
(a) any representation or warranty made or deemed made by the Guarantor herein or in
any Security Document or that is contained in any certificate, document or financial or
other
1
statement furnished by it at any time under or in connection with this Agreement or
any such Security Document shall prove to have been inaccurate in any material respect on or
as of the date made or deemed made;
(b) the Guarantor shall default in the observance or performance of any agreement
contained in clause (i) or (ii) of Section 4.4(a), Section 4.7(a) or Section 5 of this
Agreement or Section 7 of the Security Agreement;
(c) the Guarantor shall default in the observance or performance of any other
agreement contained in this Agreement or any Security Document (other than as provided in
paragraphs (a) and (b) of this definition), and such default shall continue unremedied for a
period of 30 days after notice to the Guarantor from the Administrative Agent or the
Majority Lenders;
(d) any Group Member shall (i) default in making any payment of any principal of any
Indebtedness (including any Guarantee Obligation) on the scheduled or original due date with
respect thereto; or (ii) default in making any payment of any interest on any such
Indebtedness beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness was created; or (iii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case of any such
Indebtedness constituting a Guarantee Obligation) to become payable; provided, that a
default, event or condition described in clause (i), (ii) or (iii) of this paragraph (d)
shall not at any time constitute an Event of Default unless, at such time, one or more
defaults, events or conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (d) shall have occurred and be continuing with respect to Indebtedness the
outstanding principal amount of which exceeds in the aggregate $25,000,000;
(e) (i) any Group Member shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or any Group Member shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against any Group Member any
case, proceeding or other action of a nature referred to in clause (i) above that (A)
results in the entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed or undischarged for a period of 120 days; or (iii) there shall be
commenced against any Group Member any case, proceeding or other action seeking issuance of
a warrant of attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any such relief
that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) any Group Member shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) the Guarantor shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they become due;
2
(f) (i) any Person shall engage in any “prohibited transaction” (as defined in Section
406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding
deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of
Guarantor or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event
or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of
the Majority Lenders, likely to result in the termination of such Plan for purposes of Title
IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) Guarantor or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Majority Lenders is likely to, incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event
or condition shall occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such events or
conditions, if any, could, in the sole judgment of the Majority Lenders, reasonably be
expected to have a Material Adverse Effect;
(g) one or more judgments or decrees shall be entered against any Group Member
involving in the aggregate a liability (not paid or fully covered by insurance as to which
the relevant insurance company has acknowledged coverage) of $25,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 30 days from the entry thereof;
(h) any of the Security Documents shall cease, for any reason, to be in full force and
effect, or the Guarantor or any Affiliate of the Guarantor shall so assert, or any Lien
created by any of the Security Documents shall cease to be enforceable and of the same
effect and priority purported to be created thereby;
(i) this Agreement shall cease, for any reason, to be in full force and effect or the
Guarantor or any Affiliate of the Guarantor shall so assert; or
(j) (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)), shall become, or obtain rights
(whether by means or warrants, options or otherwise) to become, the “beneficial owner” (as defined
in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more than 20% of
the outstanding common stock of the Guarantor; or (iv) the board of directors of the Guarantor
shall cease to consist of a majority of Continuing Directors.
“Guarantor Obligations”: with respect to the Guarantor, all obligations and
liabilities of the Guarantor which may arise under or in connection with this Agreement or any
other Loan Document to which the Guarantor is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to the Administrative Agent or to the
Lenders that are required to be paid by the Guarantor pursuant to the terms of this Agreement or
any other Loan Document). For the purposes of clarity, Guarantor is a guarantor of the Secured
Obligations (as defined in the Security Agreement), but is not a co-obligor with the Borrower of
the Obligations (as defined in the Credit Agreement).
“Guarantor”: as defined in the preamble hereto.
3
“Material Adverse Effect”: a material adverse effect on (a) the business, property,
operations, condition (financial or otherwise) or prospects of the Guarantor and its Subsidiaries
taken as a whole or (b) the validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
“Responsible Officer”: the chief executive officer, president or chief financial
officer of the Guarantor, but in any event, with respect to financial matters, the chief financial
officer of the Guarantor.
1.2 Other Definitional Provisions. (a) The words “hereof,” “herein”, “hereto” and
“hereunder” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Section and Schedule
references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or any part thereof, when
used in relation to the Guarantor, shall refer to the Guarantor’s Collateral or the relevant part
thereof.
SECTION 2. GUARANTEE
2.1 Guarantee. (a) The Guarantor hereby unconditionally and irrevocably guarantees
to the Administrative Agent, for the benefit of the Lenders and their respective successors,
indorsees, 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) This guarantee shall remain in full force and effect and be binding in accordance with and
to the extent of its terms upon the Guarantor and its successors and assigns thereof, and shall
inure to the benefit of the Lenders and their successors and assigns, until all the Obligations and
the obligations of the Guarantor under this guarantee shall have been satisfied by payment in full
and the Commitments shall be terminated.
2.2 No Subrogation. Notwithstanding any payment made by the Guarantor hereunder or
any set-off or application of funds of the Guarantor by the Administrative Agent or any Lender, the
Guarantor shall not be entitled to be subrogated to any of the rights of the Administrative Agent
or any Lender against the Borrower or any collateral security or guarantee or right of offset held
by the Administrative Agent or any Lender for the payment of the Obligations, nor shall the
Guarantor seek or be entitled to seek any contribution or reimbursement from the Borrower in
respect of payments made by the Guarantor hereunder, until all amounts owing to the Administrative
Agent and the Lenders by the Borrower on account of the Obligations are paid in full and the
Commitments are terminated. If any amount shall be paid to the Guarantor on account of such
subrogation rights at any time when all of the Obligations shall not have been paid in full, such
amount shall be held by the Guarantor in trust for the Administrative Agent and the Lenders and
shall, forthwith upon receipt by the Guarantor, be turned over to the Administrative Agent in the
exact form received by the Guarantor (duly indorsed by the Guarantor to the
Administrative Agent, if required), to be applied against the Obligations, whether matured or
unmatured, in such order as the Administrative Agent may determine.
2.3 Amendments, etc. with respect to the Obligations. The Guarantor shall remain
obligated hereunder notwithstanding that, without any reservation of rights against the Guarantor
and without notice to or further assent by the Guarantor, any demand for payment of any of the
Obligations made by the
4
Administrative Agent or any Lender, and this Agreement and the Notes 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 or all
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 Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Lender 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 the guarantee contained in
this Section 2 or any property subject thereto.
2.4 Guarantee Absolute and Unconditional. The 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 Lender upon this guarantee or acceptance of this
guarantee; 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 guarantee;
and all dealings between the Borrower and the Guarantor, on the one hand, and the Administrative
Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had
or consummated in reliance upon this guarantee. To the fullest extent permitted by applicable law,
the Guarantor waives diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Borrower or the Guarantor with respect to the Obligations. The Guarantor
understands and agrees that this guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or enforceability of this
Agreement or any Note, 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 Lender, (b) any defense, set-off or counterclaim (other than a defense
of payment or performance) which may at any time be available to or be asserted by the Borrower or
any other Person against the Administrative Agent or any Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Borrower or the Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower
for the Obligations, or of the Guarantor under this guarantee, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder
against the Guarantor the Administrative Agent or any Lender may, but shall be under no obligation
to, make a similar demand on or otherwise 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 Lender to make any such demand, to pursue such other rights or remedies or to collect
any payments from the Borrower, or any 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 other
Person or any such collateral security, guarantee or right of offset, shall not relieve the
Guarantor of any obligation or 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 or any Lender against the Guarantor.
For the purposes hereof “demand” shall include the commencement and continuance of any legal
proceedings.
2.5 Reinstatement. This guarantee 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 Lender upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or the
Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, the
5
Borrower or the Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been made.
2.6 Payments. The Guarantor hereby guarantees that payments hereunder will be paid to
the Administrative Agent without set-off or counterclaim in Dollars at the Funding Office
2.7 Cure. If, on any date, the Overcollateralization Ratio is less than 110%, the
Guarantor may, without premium or penalty, promptly, but in no event later than three Business Days
thereafter, deposit additional Eligible Securities into the Collateral Account in an amount such
that after giving effect to such deposit the Overcollateralization Ratio shall be equal to or
greater than 110%.
SECTION 3. REPRESENTATIONS AND WARRANTIES
The Guarantor hereby represents and warrants to the Administrative Agent and each Lender that:
3.1 Financial Condition. The audited consolidated balance sheets of the Guarantor as
at June 29, 2003, June 27, 2004, and June 26, 2005, and the related consolidated statements of
income and of cash flows for the fiscal years ended on such dates, reported on by and accompanied
by an unqualified report from Ernst & Young LLP, present fairly the consolidated financial
condition of the Guarantor as at such date, and the consolidated results of its operations and its
consolidated cash flows for the respective fiscal years then ended. The unaudited consolidated
balance sheet of the Guarantor as at March 26, 2006, and the related unaudited consolidated
statements of income and cash flows for the nine-month period ended on such date, present fairly
the consolidated financial condition of the Guarantor as at such date, and the consolidated results
of its operations and its consolidated cash flows for the nine-month period then ended (subject to
normal year-end audit adjustments). All such financial statements, including the related schedules
and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the aforementioned firm of accountants and disclosed
therein). The Guarantor does not have any material Guarantee Obligations, contingent liabilities
and liabilities for taxes, or any long-term leases or unusual forward or long-term commitments,
including any interest rate or foreign currency swap or exchange transaction or other obligation in
respect of derivatives, that are not reflected in the most recent financial statements referred to
in this paragraph.
During the period from March 26, 2006 to and including the date hereof there has been no
Disposition by the Guarantor of any material part of its business or property on a consolidated
basis.
3.2 No Change. Since March 26, 2006, there has been no development or event that has
had or could reasonably be expected to have a Material Adverse Effect.
3.3 Existence; Compliance with Law. Each Group Member (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its organization, (b) has the
power and authority, and the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation or other organization and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the conduct of its
business requires such qualification and (d) is in compliance with all Requirements of Law except
to the extent that the failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations. The Guarantor has the power and
authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a
party.
6
The Guarantor has taken all necessary organizational action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party. No consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the extensions of credit hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement or any of the Loan
Documents, except consents, authorizations, filings and notices described in Schedule 3.3 to the
Credit Agreement, which consents, authorizations, filings and notices have been obtained or made
and are in full force and effect. Each Loan Document to which the Guarantor is a party has been
duly executed and delivered by it. This Agreement constitutes, and each other Loan Document to
which the Guarantor is a party upon execution will constitute, a legal, valid and binding
obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors’ rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of this Agreement and the
other Loan Documents to which Guarantor is a party, the borrowings hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or any Contractual Obligation of any Group
Member and will not result in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or any such Contractual
Obligation (other than the Liens created by the Security Documents). No Requirement of Law or
Contractual Obligation applicable a Group Member could reasonably be expected to have a Material
Adverse Effect.
3.6 Litigation. No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the Guarantor, threatened
by or against any Group Member
or against any the respective properties or revenues (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, or (b) that could reasonably
be expected to have a Material Adverse Effect.
3.7 No Default. No Group Member is in default under or with respect to any of its
Contractual Obligations in any respect that could reasonably be expected to have a Material Adverse
Effect. No Guarantor Default or Guarantor Event of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each Group Member has title in fee simple to, or a
valid leasehold interest in, all its real property, and good title to, or a valid leasehold
interest in, all its other property, and none of such property is subject to any Lien except as
permitted by Section 5.1.
3.9 Intellectual Property. The Guarantor owns, or is licensed to use, all
Intellectual Property necessary for the conduct of its business as currently conducted. No
material claim has been asserted and is pending by any Person challenging or questioning the use of
any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor does
the Guarantor know of any valid basis for any such claim. The use of Intellectual Property by each
Group Member does not infringe on the rights of any Person in any material respect.
3.10 Taxes. Each Group Member has filed or caused to be filed all Federal, state and
other material tax returns that are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its property and all other
taxes, fees or other charges imposed on it or any of its property by any Governmental Authority
(other than any the amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the relevant Group Member); no tax Lien has been filed, and, to the
knowledge of the Guarantor, no claim is being asserted, with respect to any such tax, fee or other
charge.
7
3.11 ERISA. Neither a Reportable Event nor an “accumulated funding deficiency”
(within the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or deemed made with respect
to any Plan, and each Plan has complied in all material respects with the applicable provisions of
ERISA and the Code. No termination of a Single Employer Plan has occurred, and no Lien in favor of
the PBGC or a Plan has arisen, during such five-year period. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to fund such Plans) did
not, as of the last annual valuation date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits by a
material amount. Neither the Guarantor nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan that has resulted or could reasonably be expected to
result in a material liability under ERISA, and neither the Guarantor nor any Commonly Controlled
Entity would become subject to any material liability under ERISA if the Guarantor or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer Plans as of the valuation date most closely preceding the
date on which this representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent.
3.12 Investment Company Act; Other Regulations. The Guarantor is not an “investment
company”, or a company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended. The Guarantor is subject to regulation under any
Requirement of Law (other than Regulation X of the Board) that limits its ability to incur
Indebtedness.
3.13 Environmental Matters. Except as, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by the Guarantor (the
“Properties”) do not contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations or under circumstances that constitute or
constituted a violation of, or could give rise to liability under, any Environmental Law;
(b) No Group Member has received nor is aware of any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the business operated by any Group
Member (the “Business”), nor does the Guarantor have knowledge or reason to believe that
any such notice will be received or is being threatened;
(c) Materials of Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location that could give rise to liability
under, any Environmental Law, nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Properties in violation of, or in a
manner that could give rise to liability under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative action is pending or, to the
knowledge of the Guarantor, threatened, under any Environmental Law to which any Group Member is or
will be named as a party with respect to the Properties or the Business, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law with respect to the
Properties or the Business;
(e) there has been no release or threat of release of Materials of Environmental Concern at or
from the Properties, or arising from or related to the operations of the Guarantor in connection
with the
8
Properties or otherwise in connection with the Business, in violation of or in amounts or
in a manner that could give rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in compliance, and have in the
last five years been in compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties or violation of any Environmental Law with respect
to the Properties or the Business; and
(g) no Group Member has assumed any liability of any other Person under Environmental Laws.
3.14 Accuracy of Information, etc. No statement or information contained in this
Agreement or the Security Agreement or any other document, certificate or statement furnished by or
on behalf of the Guarantor to the Administrative Agent or the Lenders, or any of them, for use in
connection with the transactions contemplated by this Agreement or the Security Agreement,
contained as of the date such statement, information, document or certificate was so furnished, any
untrue statement of a material fact or omitted to state a material fact necessary to make the
statements contained herein or therein not misleading. The projections and pro
forma financial information contained in the materials referenced above are based upon good
faith estimates and assumptions believed by management of the Guarantor to be reasonable at the
time made, it being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the period or periods
covered by such financial information may differ from the projected results set forth therein by a
material amount. There is no fact known to the Guarantor that could reasonably be expected to have
a Material Adverse Effect that has not been expressly disclosed herein or in any other documents,
certificates and statements furnished to the Administrative Agent and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan Documents.
3.15 Security Documents. The Security Agreement is effective to create in favor of
the Administrative Agent, for the benefit of the Lenders, a legal, valid and enforceable security
interest in the Collateral described therein and proceeds thereof. Upon execution and delivery of
the Securities Control Agreement by the parties thereto, the Security Agreement will constitute a
fully perfected Lien on, and security interest in, all right, title and interest of the Guarantor
in such Collateral and the proceeds thereof, as security for the Secured Obligations (as defined in
the Security Agreement), in each case prior and superior in right to any other Person (except as
otherwise permitted by Section 5.1).
SECTION 4. AFFIRMATIVE COVENANTS
The Guarantor covenants and agrees with the Administrative Agent and the Lenders that, from
and after the date of this Agreement until the Obligations shall have been paid in full, no Letter
of Credit shall be outstanding and the Commitments shall have terminated:
4.1 Financial Statements. Furnish to the Administrative Agent and each Lender:
(a) as soon as available, but in any event within 90 days after the end of each fiscal
year of the Guarantor, a copy of the audited consolidated balance sheet of the Guarantor and
its consolidated Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on without a “going
concern” or like qualification or exception, or qualification arising out of the scope of
the audit, by Ernst & Young, LLP or other independent certified public accountants of
nationally recognized standing; and
9
(b) as soon as available, but in any event not later than 45 days after the end of each
of the first three quarterly periods of each fiscal year of the Guarantor, the unaudited
consolidated balance sheet of the Guarantor and its consolidated Subsidiaries as at the end
of such quarter and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the fiscal year through the end of such quarter,
setting forth in each case in
comparative form the figures for the previous year, certified by a Responsible Officer
as being fairly stated in all material respects (subject to normal year-end audit
adjustments).
All such financial statements shall be complete and correct in all material respects and shall
be prepared in reasonable detail and in accordance with GAAP applied (except as approved by such
accountants or officer, as the case may be, and disclosed in reasonable detail therein)
consistently throughout the periods reflected therein and with prior periods. Notwithstanding
anything to the contrary contained in this Section 4.1, the Guarantor shall not be required to
deliver any financial statements to the Administrative Agent with respect to any period for which
it has timely filed its Form 10-K or Form 10-Q, as the case may be, with the SEC (provided
that such Form 10-K or Form 10-Q, as the case may be, is publicly available on the SEC’s website
(or a similar website) within the time periods required by this Section).
4.2 Certificates; Other Information. Furnish to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in
Section 4.1(a), a certificate of the independent certified public accountants reporting on
such financial statements stating that in making the examination necessary therefor no
knowledge was obtained of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of any financial statements pursuant to Section
4.1, (i) a certificate of a Responsible Officer stating that, to the best of each such
Responsible Officer’s knowledge, each Loan Party during such period has observed or
performed all of its covenants and other agreements, and satisfied every condition contained
in this Agreement and the other Loan Documents to which it is a party to be observed,
performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate; and
(c) unless publicly available at such time on the SEC’s website (or a similar website),
within five days after the same are sent, copies of all financial statements and reports
that the Guarantor sends to the holders of any class of its debt securities or public equity
securities and, within five days after the same are filed, copies of all financial
statements and reports that the Guarantor may make to, or file with, the SEC.
4.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or before maturity
or before they become delinquent, as the case may be, all its material obligations of whatever
nature, except where the amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the relevant Group Member.
4.4 Maintenance of Existence; Compliance. (a)(i) Preserve, renew and keep in full
force and effect its organizational existence and (ii) take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 5.2(b) and except, in the case of clause
(ii) above, to the extent that failure to do so could not reasonably be expected to have
a Material Adverse Effect; and (b) comply with all Contractual
10
Obligations and Requirements of
Law except to the extent that failure to comply therewith could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
4.5 Maintenance of Property; Insurance. (a) Keep all property useful and necessary
in its business in good working order and condition, ordinary wear and tear excepted and (b)
maintain with financially sound and reputable insurance companies insurance on all its property in
at least such amounts and against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in the same general
area by companies engaged in the same or a similar business.
4.6 Inspection of Property; Books and Records; Discussions. (a) Keep proper books of
records and account in which full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions in relation to its business and
activities and (b) permit representatives of any Lender to visit and inspect any of its properties
and examine and make abstracts from any of its books and records at any reasonable time and as
often as may reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Group Members with officers and employees of the Group Members
and with their independent certified public accountants.
4.7 Notices. Promptly after acquiring knowledge thereof give notice to the
Administrative Agent of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of any Group
Member or (ii) litigation, investigation or proceeding that may exist at any time between
any Group Member and any Governmental Authority, that in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected to have a Material
Adverse Effect;
(c) any litigation or proceeding affecting any Group Member (i) in which the amount
involved is $25,000,000 or more and not covered by insurance or (ii) which relates to any
Loan Document to which the Guarantor is a party, that in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected to have a Material
Adverse Effect;
(d) the following events, as soon as possible and in any event within 30 days after the
Guarantor knows or has reason to know thereof: (i) the occurrence of any Reportable Event
with respect to any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or the Guarantor or any
Commonly Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or
the termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
Each notice pursuant to this Section 4.7 shall be accompanied by a statement of a Responsible
Officer setting forth details of the occurrence referred to therein and stating what action the
relevant Group Member proposes to take with respect thereto.
4.8 Environmental Laws .
11
(a) Comply in all material respects with, and ensure compliance in all material
respects by all tenants and subtenants, if any, with, all applicable Environmental Laws, and
obtain and comply in all material respects with and maintain, and ensure that all tenants
and subtenants obtain and comply in all material respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by applicable
Environmental Laws
(b) Conduct and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and promptly comply in
all material respects with all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws.
SECTION 5. NEGATIVE COVENANTS
The Guarantor hereby agrees that, so long as the Commitments remain in effect or any Loan or
other amount is owing to any Lender or the Administrative Agent hereunder, the Guarantor shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly:
5.1 Liens. Create, incur, assume or suffer to exist any Lien upon any of its
property, whether now owned or hereafter acquired, except:
(a) Liens for taxes not yet due or that are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect thereto are
maintained on the books of the Guarantor or its Subsidiaries, as the case may be, in
conformity with GAAP;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business that are not overdue for a period of more
than 30 days or that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment
insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances incurred in
the ordinary course of business that, in the aggregate, are not substantial in amount and
that do not in any case materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the Guarantor or any of
its Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule 5.1(f), securing
Indebtedness described on such schedule, or any refinancing thereof, provided that
no such Lien is spread to cover any additional property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Guarantor or any other Subsidiary incurred to
finance the acquisition of fixed or capital assets, or any refinancing thereof,
provided that (i) such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness and (iii) the amount of
Indebtedness secured thereby is not increased;
12
(h) Liens arising as a result of any transactions expressly permitted by Section 5.2
(i) Liens created pursuant to the Security Documents;
(j) any interest or title of a lessor under any lease entered into by the Borrower or
any other Subsidiary in the ordinary course of its business and covering only the assets so
leased; and
(k) Liens not otherwise permitted by this Section so long the aggregate outstanding
principal amount of the obligations secured thereby exceed (as to the Guarantor and all
Subsidiaries) $100,000,000 at any one time.
Notwithstanding anything to the contrary contained in this Section 5.1, no Lien
otherwise permitted hereunder shall encumber the Pledged Collateral.
5.2 Fundamental Changes. Enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all
or substantially all of its property or business, except that:
(a) any Subsidiary may be merged or consolidated with or into the Borrower or Guarantor
(provided that the Borrower or the Guarantor shall be the continuing or surviving
corporation) or with or into any Wholly Owned Subsidiary (provided that the Wholly
Owned Subsidiary shall be the continuing or surviving corporation);
(b) any Subsidiary may Dispose of any or all of its assets (i) to the Borrower or the
Guarantor or any Wholly Owned Subsidiary (upon voluntary liquidation or otherwise) or (ii)
pursuant to a Disposition permitted by Section 5.3; and
(c) any Person (other than a Subsidiary) may merge or consolidate with the Borrower or
the Guarantor or any Subsidiary.
5.3 Disposition of Property. Dispose of any of its property, whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such
Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary course of
business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by clause (i) of Section 5.2(b);
(d) the sale or issuance of any Subsidiary’s Capital Stock to the Guarantor, the
Borrower or any Wholly Owned Subsidiary; and
(e) the Disposition of other property having a fair market value not to exceed
$50,000,000 in the aggregate for any fiscal year of the Guarantor.
5.4 Transactions with Affiliates. Enter into any transaction, including any purchase,
sale, lease or exchange of property, the rendering of any service or the payment of any management,
advisory or similar fees, with any Affiliate (other than the Guarantor or any Wholly Owned
Subsidiary) unless such transaction is upon fair and reasonable terms no less favorable to the
relevant Group Member than it
13
would obtain in a comparable arm’s length transaction with a Person
that is not an Affiliate, or is otherwise permitted under this Agreement.
5.5 Changes in Fiscal Periods. Permit the fiscal year of the Guarantor to end on a
day other than as would be determined using the Guarantor’s current method of determining fiscal
years or change the Guarantor’s method of determining fiscal quarters and fiscal years.
5.6 Lines of Business. Enter into any business, either directly or through any Subsidiary,
except for those businesses in which the Guarantor and its Subsidiaries are engaged on the date of
this Agreement or that are reasonably related thereto.
SECTION 6. MISCELLANEOUS
6.1 Amendments in Writing. None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except in accordance with Section 9.1 of the
Credit Agreement.
6.2 Notices. All notices, requests and demands to or upon the Administrative Agent or
the Guarantor hereunder shall be effected in the manner provided for in Section 9.2 of the Credit
Agreement; provided that any such notice, request or demand to or upon the Guarantor shall be
addressed to the Guarantor at its notice address set forth on Schedule 1.
6.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the Administrative
Agent nor any Lender shall by any act (except by a written instrument pursuant to Section 6.1),
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. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, 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 Lender of any
right or remedy hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent or such Lender would otherwise have on any future occasion.
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.
6.4 Enforcement Expenses; Indemnification. (a) The Guarantor agrees to pay or
reimburse each Lender and the Administrative Agent for all its costs and expenses incurred in
collecting against the Guarantor under this guarantee or otherwise enforcing or preserving any
rights under this Agreement and the other Loan Documents to which the Guarantor is a party,
including, without limitation, the fees and disbursements of counsel (including the allocated fees
and expenses of in-house counsel) to each Lender and of counsel to the Administrative Agent.
(b) The Guarantor agrees to pay, and to save the Administrative Agent and the Lenders harmless
from, any and all liabilities with respect to, or resulting from any delay in paying, any and all
stamp, excise, sales or other taxes which may be payable or determined to be payable with respect
to any of the Collateral or in connection with any of the transactions contemplated by this
Agreement.
(c) The Guarantor agrees to pay, and to save the Administrative Agent and the Lenders harmless
from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement to the extent the Borrower
would be required (and has failed) to do so pursuant to Section 9.5 of the Credit Agreement.
14
(d) The agreements in this Section 6.4 shall survive repayment of the Obligations and all
other amounts payable under the Credit Agreement and the other Loan Documents.
6.5 Successors and Assigns. This Agreement shall be binding upon the successors and
assigns of the Guarantor and shall inure to the benefit of the Administrative Agent and the Lenders
and their successors and assigns; provided that the Guarantor may not assign, transfer or delegate
any of its rights or obligations under this Agreement without the prior written consent of the
Administrative Agent.
6.6 Set-Off. The Guarantor hereby irrevocably authorizes the Administrative Agent and
each Lender at any time and from time to time while an Event of Default shall have occurred and be
continuing, without notice to the Guarantor or any other Person, any such notice being expressly
waived by the Guarantor, to set-off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the Administrative Agent or such
Lender to or for the credit or the account of the Guarantor, or any part thereof in such amounts as
the Administrative Agent or such Lender may elect, against and on account of the obligations and
liabilities of the Guarantor to the Administrative Agent or such Lender hereunder and claims of
every nature and description of the Administrative Agent or such Lender against the Guarantor, in
any currency, whether arising hereunder, under the Credit Agreement, any other Loan Document or
otherwise, as the Administrative Agent or such Lender may elect, whether or not the Administrative
Agent or any Lender has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. The Administrative Agent
and each Lender shall notify the Guarantor promptly of any such set-off and the application made by
the Administrative Agent or such Lender of the proceeds thereof, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The rights of the
Administrative Agent and each Lender under this Section 6.6 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the Administrative Agent or
such Lender may have.
6.7 Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the same instrument.
6.8 Severability. Any provision of this Agreement which 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.
6.9 Section Headings. The Section headings used in this Agreement are for convenience
of reference only and are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.
6.10 Integration. This Agreement and the other Loan Documents represent the agreement
of the Guarantor, the Administrative Agent and the Lenders with respect to the subject matter
hereof and thereof, and there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to subject matter hereof and thereof not expressly set
forth or referred to herein or in the other Loan Documents.
6.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
15
6.12 Submission To Jurisdiction; Waivers. The Guarantor hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment 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 Guarantor at its address referred to in Section 6.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
(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.
6.13 Acknowledgements. The Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents to which it is a party;
(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to the Guarantor arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Guarantor, on the one hand, and the Administrative
Agent and Lenders, on the other hand, in connection herewith or therewith is solely that of
guarantor and lender; and
(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or among the Guarantor and the
Lenders.
6.14 Authority of Administrative Agent. The Guarantor acknowledges that the rights
and responsibilities of the Administrative Agent under this Agreement with respect to any action
taken by the Administrative Agent or the exercise or non-exercise by the Administrative Agent of
any right or remedy provided for herein or resulting or arising out of this Agreement shall, as
between the Administrative Agent and the Lenders, be governed by the Credit Agreement and by such
other agreements with respect thereto as may exist from time to time among them, but, as between
the Administrative Agent and the Guarantor, the Administrative Agent shall be conclusively presumed
to be acting as agent for the Lenders with full and valid authority so to act or refrain from
acting, and the Guarantor shall not be under any obligation, or entitlement, to make any inquiry
respecting such authority.
16
6.15 Termination and Release(a) .
(a) Notwithstanding anything to the contrary contained herein or in any other Loan Document,
the Administrative Agent is hereby irrevocably authorized by each Lender (without requirement of
notice to or consent of any Lender except as expressly required by Section 9.1 of the Credit
Agreement) to take
any action requested by the Guarantor having the effect of releasing any Collateral or
guarantee obligations that has been consented to in accordance with Section 9.1 of the Credit
Agreement or under the circumstances described in paragraph (b) below
(b) At such time as the Obligations and the Guarantor Obligations shall have been paid in full
and the Commitments have been terminated, this Agreement and all obligations (other than those
expressly stated to survive such termination) of the Administrative Agent and the Guarantor and all
obligations (other than those expressly stated to survive such termination) of the Administrative
Agent and each Loan Party under the Security Documents shall terminate, all without delivery of any
instrument or performance of any act by any party.
6.16 WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
17
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee to be duly executed and
delivered as of the date first above written.
XXX RESEARCH CORPORATION | ||||||
By: | /s/ Xxxx XxXxxxx
|
18
SCHEDULE 5.1
Existing Liens
19