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Exhibit 10.2
EXECUTION COPY
SUBSIDIARY GUARANTY
Dated as of February 4, 1998
From
THE GUARANTORS NAMED HEREIN
and
THE ADDITIONAL GUARANTORS REFERRED TO HEREIN,
as Guarantors,
in favor of
THE SECURED PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
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T A B L E O F C O N T E N T S
Section Page
1. Guaranty; Limitation of Liability....................................... 1
2. Guaranty Absolute....................................................... 2
3. Waivers and Acknowledgments............................................. 3
4. Subrogation............................................................. 3
5. Payments Free and Clear of Taxes, Etc................................... 4
6. Representations and Warranties.......................................... 5
7. Covenants............................................................... 6
8. Amendments, Etc......................................................... 6
9. Notices, Etc............................................................ 6
10. No Waiver; Remedies..................................................... 6
11. Right of Set-off........................................................ 6
12. Indemnification......................................................... 7
13. Continuing Guaranty; Assignments under the Credit Agreement............. 7
14. Execution in Counterparts............................................... 8
15. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.................. 8
Exhibit A - Guaranty Supplement
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Exhibit 10.2
SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY dated as of February 4, 1998 made by the Persons
listed on the signature pages hereof under the caption "Subsidiary Guarantors"
and the Additional Guarantors (as defined in Section 8(b)) (such Persons so
listed and the Additional Guarantors being, collectively, the "Guarantors"), in
favor of the Secured Parties (as defined in the Credit Agreement referred to
below).
PRELIMINARY STATEMENT.
APC Holding, Inc., a Delaware corporation (the "Borrower"), has
entered into a Credit Agreement dated as of February 4, 1998 (said Agreement, as
it may hereafter be amended, supplemented or otherwise modified from time to
time, being the "Credit Agreement"; the capitalized terms defined therein and
not otherwise defined herein being used herein as therein defined) with certain
Lender Parties party thereto, NationsCredit Commercial Corporation
("NationsCredit"), as Collateral Agent, and NationsBridge, L.L.C.
("NationsBridge"), as Administrative Agent for the Lender Parties. Each
Guarantor may receive a portion of the proceeds of the Advances from time to
time. It is a condition precedent to the making of Advances by the Lenders under
the Credit Agreement and will derive substantial direct and indirect benefit
from the transactions contemplated by the Credit Agreement. It is a condition
precedent to the making of Advances, the issuance of Letters of Credit by the
Issuing Bank under the Credit Agreement and the entry by the Hedge Banks into
Bank Hedge Agreements, if any, with the Borrower from time to time that each
Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lender Parties to make Advances and to issue Letters of Credit under
the Credit Agreement and the Hedge Banks to enter into Bank Hedge Agreements, if
any, with the Borrower from time to time, each Guarantor, jointly and severally
with each other Guarantor, hereby agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) Each Guarantor,
jointly and severally, hereby absolutely, unconditionally and irrevocably
guarantees the punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations of each other Loan Party now or
hereafter existing under the Loan Documents, whether for principal, interest,
fees, expenses or otherwise (such Obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including counsel fees
and expenses) incurred by the Administrative Agent or any other Secured Party in
enforcing any rights under this Guaranty and the other Loan Documents. Without
limiting the generality of the foregoing, each Guarantor's liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by any other Loan Party to the Administrative Agent or any other
Secured Party under the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Loan Party.
(b) Each Guarantor, and by its acceptance of this Guaranty, the
Administrative Agent and each other Secured Party, hereby confirms that it is
the intention of all such parties that this Guaranty not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law to the extent applicable to this Guaranty. To effectuate the foregoing
intention, the Administrative Agent, the other Secured Parties and the
Guarantors hereby irrevocably agree that the Obligations of each Guarantor under
this Guaranty shall be limited to the maximum amount as will, after giving
effect to such maximum amount and all other contingent and fixed liabilities of
such Guarantor (other than guaranties of such Guarantor in respect of
subordinated debt) that are relevant under such laws, and after giving effect to
any collections from, rights to receive contribution from or payments made by or
on behalf of any other Guarantor in respect of the Obligations of such other
Guarantor under this Guaranty or any other guaranty, result in the Obligations
of such Guarantor under this Guaranty not
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constituting a fraudulent transfer or conveyance. For purposes hereof,
"Bankruptcy Law" means Title 11, U.S. Code, or any similar Federal or state law
for the relief of debtors.
(c) Each Guarantor agrees that in the event any payment shall be
required to be made to the Secured Parties under this Guaranty or the Parent
Guaranty or any other guaranty, such Guarantor will contribute, to the maximum
extent permitted by law, such amounts to each other Guarantor and Parent and
each other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under the Loan Documents.
Section 2. Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, 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 other Secured Party with respect thereto. The
Obligations of each Guarantor under this Guaranty are independent of the
Guaranteed Obligations or any other Obligations of any other Loan Party under
the Loan Documents, and a separate action or actions may be brought and
prosecuted against each Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or
actions. The liability of each Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or
any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under the Loan Documents, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to the Borrower or any
of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any
Collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of Collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any Collateral for all or any of the Guaranteed Obligations
or any other Obligations of any other Loan Party under the Loan Documents
or any other assets of any other Loan Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to the Borrower or
any Guarantor any information relating to the financial condition,
operations, properties or prospects of any other Loan Party now or in the
future known to any Secured Party (each Guarantor waiving any duty on the
part of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute this Guaranty or any
other guaranty or agreement or the release or reduction of liability of
any Guarantor or other guarantor or surety with respect to the Guaranteed
Obligations; or
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(h) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Administrative Agent or any other Secured Party that
might otherwise constitute a defense available to, or a discharge of, the
Borrower, any Guarantor or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Secured Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) Each Guarantor hereby
waives promptness, diligence, notice of acceptance, presentment, demand for
performance, protest, notice of non-performance, default, acceleration, protest
or dishonor and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that the Administrative Agent
or any other Secured Party protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action against any
Loan Party or any other Person or any Collateral.
(b) Each Guarantor hereby waives any right to revoke this Guaranty,
and acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
(c) Each Guarantor hereby waives (i) any defense arising by reason
of any claim or defense based upon an election of remedies by the Administrative
Agent or the other Secured Parties which in any manner impairs, reduces,
releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of such Guarantor or any
other rights of such Guarantor to proceed against any of the other Loan Parties,
any other guarantor or any other Person or any Collateral and (ii) any defense
based on any right of set-off or counterclaim against or in respect of the
Obligations of such Guarantor under this Guaranty.
(d) Each Guarantor acknowledges that the Administrative Agent may,
without notice to or demand upon such Guarantor and without affecting the
liability of each Guarantor under this Guaranty, foreclose under any Mortgage by
nonjudicial sale, and such Guarantor hereby waives any defense to the recovery
by the Administrative Agent and the other Secured Parties against such Guarantor
of any deficiency after such nonjudicial sale and any defense or benefits that
may be afforded by applicable law.
(e) Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waivers set forth in Section 2 and this Section 3
are knowingly made in contemplation of such benefits.
Section 4. Subrogation. No Guarantor will exercise any rights that
it may now or hereafter acquire against the Borrower or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor's Obligations under this Guaranty 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 the Administrative Agent or any other Secured Party against
the Borrower or any other insider guarantor 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 the
Borrower or any other insider guarantor, 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, unless and until all of the Obligations
and all other amounts payable under this Guaranty shall have been paid in full
in cash, all Bank Hedge
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Agreements, if any, shall have expired or terminated and the Commitments shall
have expired or terminated. If any amount shall be paid to any Guarantor in
violation of the preceding sentence at any time prior to the latest of (i) the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (ii) the Termination Date and (iii) the latest date
of expiration or termination of all Bank Hedge Agreements, if any, such amount
shall be held in trust for the benefit of the Administrative Agent and the other
Secured Parties and shall forthwith be paid to the Administrative Agent to be
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Guaranty, whether matured or unmatured, in accordance with the terms
of the Loan Documents, or to be held as Collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter arising. If
(i) any Guarantor shall make payment to the Administrative Agent or any other
Secured Party of all or any part of the Guaranteed Obligations, (ii) all of the
Guaranteed Obligations and all other amounts payable under this Guaranty shall
be paid in full in cash, (iii) the Termination Date shall have occurred and (iv)
all Bank Hedge Agreements, if any, shall have expired or terminated, the
Administrative Agent and the other Secured Parties will, at such Guarantor's
request and expense, execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to such Guarantor of an interest in the
Guaranteed Obligations resulting from such payment by such Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Any and all
payments made by any Guarantor hereunder shall be made, in accordance with
Section 2.11 of the Credit Agreement, free and clear of and without deduction
for any and all present or future Taxes. If any Guarantor shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder to the
Administrative Agent or any other Secured Party, (i) the sum payable by such
Guarantor shall be increased as may be necessary so that after such Guarantor
and the Administrative Agent have made all required deductions (including
deductions applicable to additional sums payable under this Section 5) the
Administrative Agent or such other Secured Party (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Guarantor shall make all such deductions and (iii) such
Guarantor shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, each Guarantor agrees to pay any present or future
Other Taxes that arise from any payment made hereunder or from the execution,
delivery or registration of, performance under, or otherwise with respect to
this Guaranty.
(c) Each Guarantor will indemnify the Administrative Agent and each
other Secured Party for, and hold them harmless against, the full amount of
Taxes and Other Taxes, and for the full amount of taxes of any kind imposed by
any jurisdiction on amounts payable under this Section 5, imposed on or paid by
the Administrative Agent or such other Secured Party (as the case may be) and
any liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be made
within 30 days from the date the Administrative Agent or such other Secured
Party (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes by or on
behalf of any Guarantor, such Guarantor will furnish to the Administrative
Agent, at its address referred to in Section 8.02 of the Credit Agreement, the
original or a certified copy of a receipt evidencing such payment. In the case
of any payment hereunder by or on behalf of any Guarantor through an account or
branch outside the United States or by or on behalf of such Guarantor by a payor
that is not a United States person, if such Guarantor determines that no Taxes
are payable in respect thereof, such Guarantor shall furnish, or shall cause
such payor to furnish, to the Administrative Agent, at such address, an opinion
of counsel acceptable to the Administrative Agent stating that such payment is
exempt from Taxes. For purposes of subsections (d) and (e) of this Section 5,
the terms "United
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States" and "United States person" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) Upon the reasonable request in writing of any Guarantor, each
Secured Party organized under the laws of a jurisdiction outside the United
States shall, on or prior to the date of its execution and delivery of the
Credit Agreement, in the case of each Initial Lender or the Initial Issuing
Bank, as the case may be, and on the date of the Assignment and Acceptance or
other agreement pursuant to which it becomes a Secured Party, in the case of
each other Secured Party, and from time to time thereafter upon the reasonable
request in writing by any Guarantor (but only so long thereafter as such Secured
Party remains lawfully able to do so), provide the Administrative Agent and such
Guarantor with two original Internal Revenue Service forms 1001 or 4224. If the
forms provided by a Secured Party at the time such Secured Party first becomes a
party to the Credit Agreement indicate a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Secured Party provides the appropriate
forms certifying that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes for periods governed by
such forms; provided, however, that, if at the date of the Assignment and
Acceptance pursuant to which a Secured Party assignee becomes a party to the
Credit Agreement, the Secured Party assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term "Taxes" shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Secured Party assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001 or
4224, that the applicable Secured Party reasonably considers to be confidential,
such Secured Party shall give notice thereof to the applicable Guarantor and
shall not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Secured Party has failed
to provide any Guarantor following such Guarantor's request therefor pursuant to
subsection (e) above with the appropriate form described in subsection (e) above
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e) above), such Secured Party shall not be
entitled to indemnification under subsection (a) or (c) of this Section 5 with
respect to Taxes imposed by the United States; provided, however, that should a
Secured Party become subject to Taxes because of its failure to deliver a form
required hereunder, such Guarantor shall take such steps as such Secured Party
shall reasonably request to assist such Secured Party to recover such Taxes.
(g) Without prejudice to the survival of any other agreement of any
Guarantor hereunder or under any other Loan Document, the agreements and
obligations of each Guarantor contained in this Section 5 and in Section 12
shall survive the payment in full of the Guaranteed Obligations and all other
amounts payable under this Guaranty.
Section 6. Representations and Warranties. (a) Each Guarantor hereby
makes each representation and warranty made in the Loan Documents by the
Borrower with respect to such Guarantor.
(b) There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
(c) Each Guarantor has, independently and without reliance upon the
Administrative Agent or any other Secured Party and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Guaranty, and such Guarantor has established
adequate means of obtaining from any other Loan Parties on a continuing basis
information pertaining to, and is now and on a
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continuing basis will be completely familiar with, the financial condition,
operations, properties and prospects of such other Loan Parties.
Section 7. Covenants. Each Guarantor covenants and agrees that, so
long as any part of the Guaranteed Obligations shall remain unpaid, any Letter
of Credit shall be outstanding, any Lender Party shall have any Commitment or
any Bank Hedge Agreement shall be in effect, such Guarantor will perform or
observe, and cause each of its Subsidiaries to perform or observe, all of the
terms, covenants and agreements that the Loan Documents state that the Borrower
is to cause such Guarantor or such Subsidiaries to perform or observe.
Section 8. Amendments, Etc. (a) No amendment or waiver of any
provision of this Guaranty and no consent to any departure by any Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent and the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all of the Secured Parties
(other than any Lender Party that is, at such time, a Defaulting Lender), (a)
reduce or limit the liability of such Guarantor hereunder or release any
Guarantor hereunder, (b) postpone any date fixed for payment hereunder or (c)
change the number of Secured Parties required to take any action hereunder.
(b) Upon the execution and delivery by any Person of a guaranty
supplement in substantially the form of Exhibit A hereto (each, a "Guaranty
Supplement"), (i) such Person shall be referred to as an "Additional Guarantor"
and shall be and become a Guarantor hereunder and each reference in this
Guaranty to a "Guarantor" shall also mean and be a reference to such Additional
Guarantor and each reference in any other Loan Document to a "Subsidiary
Guarantor" shall also mean and be a reference to such Additional Guarantor and
(ii) each reference herein and in any other Loan Document to the "Subsidiary
Guaranty" shall mean and be a reference to this Subsidiary Guaranty as
supplemented by such Guaranty Supplement.
Section 9. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered
to it, if to any Guarantor, addressed to it at the address listed for such
Guarantor on the signature pages hereof (or in the applicable Guaranty
Supplement), if to any Agent or any Lender Party, at its address specified in
the Credit Agreement, if to any Hedge Bank, at its address specified in the Bank
Hedge Agreement to which it is a party, or as to any party at such other address
as shall be designated by such party in a written notice to each other party.
All such notices and other communications shall, when mailed, telegraphed,
telecopied or telexed, be effective when deposited in the mail, delivered to the
telegraph company, transmitted by telecopier or confirmed by telex answerback,
respectively. Delivery by telecopier of an executed counterpart of any amendment
or waiver of any provision of this Guaranty shall be effective as delivery of a
manually executed counterpart thereof.
Section 10. No Waiver; Remedies. No failure on the part of the
Administrative Agent or any other Secured Party 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. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 11. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 of the Credit Agreement to
authorize the Administrative Agent to declare the Notes due and payable pursuant
to the provisions of said Section 6.01, each Lender Party and each of its
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or
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special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender Party or such Affiliate to or for
the credit or the account of any Guarantor against any and all of the
Obligations of such Guarantor now or hereafter existing under this Guaranty,
whether or not such Lender Party shall have made any demand under this Guaranty
and although such Obligations may be unmatured. Each Lender Party agrees
promptly to notify such Guarantor after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender Party and
its respective Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender Party and its respective Affiliates may have.
Section 12. Indemnification. (a) Without limitation on any other
Obligations of any Guarantor or remedies of the Secured Parties under this
Guaranty, each Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless the Administrative Agent and each
of the other Secured Parties from and against, and shall pay on demand, any and
all claims, losses, liabilities, damages, costs, expenses and charges
(including, without limitation, reasonable fees, disbursements and other charges
of counsel) that may be incurred by or asserted or awarded against the
Administrative Agent or such Secured Party as a result of any failure of any
Guaranteed Obligations to be the legal, valid and binding obligations of any
Loan Party enforceable against such Loan Party in accordance with their terms.
(b) Each Guarantor hereby also severally agrees that neither the
Administrative Agent nor any of the other Secured Parties shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to any of
the Guarantors or any of their respective Affiliates or any of their respective
officers, directors, employees, attorneys and agents, and each Guarantor hereby
severally agrees not to assert any claim against the Administrative Agent or any
of the other Secured Parties on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Facilities, the actual or proposed use of the proceeds of the Advances or the
Letters of Credit, the Loan Documents or any of the transactions contemplated
thereby.
(c) Without prejudice to the survival of any of the other agreements
of any of the Guarantors under this Guaranty or any of the other Loan Documents,
the agreements and obligations of each of the Guarantors contained in Section
1(a) (with respect to enforcement expenses), the last sentence of Section 2(a),
Section 5 and this Section 12 shall survive the payment in full of the
Guaranteed Obligations and all of the other amounts payable under this Guaranty.
Section 13. Continuing Guaranty; Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the latest of (i) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty, (ii)
the Termination Date and (iii) the expiration or termination of all Bank Hedge
Agreements, if any, (b) be binding upon each Guarantor, its successors and
assigns and (c) inure to the benefit of and be enforceable by the Administrative
Agent and the other Secured Parties and their successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), any
Secured Party may assign or otherwise transfer all or any portion of its rights
and obligations under the Credit Agreement (including, without limitation, all
or any portion of its Commitments, the Advances owing to it and the Note or
Notes held by it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to such Secured
Party herein or otherwise, in each case as and to the extent provided in Section
8.07 of the Credit Agreement. No Guarantor shall have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Secured Parties.
Section 14. Execution in Counterparts. This Guaranty may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of
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an executed counterpart of a signature page to this Guaranty by telecopier shall
be effective as delivery of a manually executed counterpart of this Guaranty.
Section 15. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.
(a) This Guaranty shall be governed by, and construed in accordance with, the
laws of the State of New York.
(b) Each Guarantor hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any New York
State court or federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Guaranty or any of the other Loan Documents
to which it is or is to be a party, or for recognition or enforcement of any
judgment, and each Guarantor hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each Guarantor agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Guaranty shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Guaranty or any of the
other Loan Documents to which it is or is to be a party in the courts of any
jurisdiction.
(c) Each Guarantor irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Guaranty or any of the other Loan Documents
to which it is or is to be a party in any New York State or federal court. Each
Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
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(d) EACH 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 ANY OF THE LOAN DOCUMENTS, THE
ADVANCES OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY OTHER SECURED PARTY
IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, each Grantor has caused this Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
AFA PRODUCTS, INC.
By /s/
________________________________
Title:
Address:
000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
Attention: ________________________
CONTINENTAL ACQUISITION CORP.
By /s/
________________________________
Title:
Address:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ________________________
12
Exhibit A
FORM OF GUARANTY SUPPLEMENT
_______, ____
NationsBridge, L.L.C., as Administrative Agent
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: _________
Credit Agreement dated as of February 4, 1998 among APC Holding,
Inc., a Delaware corporation (the "Borrower"), the Lender Parties
party to the Credit Agreement, NationsCredit Commercial Corporation
("NationsCredit"), as Collateral Agent, and NationsBridge, L.L.C.
("NationsBridge"), as Administrative Agent
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to the
Subsidiary Guaranty referred to therein (such Subsidiary Guaranty, as in effect
on the date hereof and as it may hereafter be amended, supplemented or otherwise
modified from time to time, together with this Guaranty Supplement, being the
"Subsidiary Guaranty"). The capitalized terms defined in the Subsidiary Guaranty
or in the Credit Agreement and not otherwise defined herein are used herein as
therein defined.
The undersigned, jointly and severally with the other Guarantors,
hereby absolutely, unconditionally and irrevocably guarantees the punctual
payment when due, whether at stated maturity, by acceleration or otherwise, of
all Obligations (as defined in the Credit Agreement) of each other Loan Party
now or hereafter existing under the Loan Documents, whether for principal,
interest, fees, expenses or otherwise and agrees to pay any and all expenses
(including counsel fees and expenses) incurred by the Administrative Agent or
any other Secured Party in enforcing any rights under the Subsidiary Guaranty
and any other Loan Documents on the terms and subject to the limitations set
forth in the Subsidiary Guaranty as if it were an original party thereto. On and
after the date hereof, each reference in the Subsidiary Guaranty to "Guarantor"
shall also mean and be a reference to the undersigned.
The undersigned hereby agrees to be bound as a Guarantor by all of
the terms and provisions of the Subsidiary Guaranty to the same extent as each
other Guarantor.
This Guaranty Supplement shall be governed by, and construed in
accordance with, the laws of the State of New York.
13
3
THE UNDERSIGNED 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 ANY OF THE LOAN DOCUMENTS, THE ADVANCES
OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY OTHER SECURED PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Very truly yours,
[NAME OF ADDITIONAL GUARANTOR]
By _____________________________
Title:
Address:
