EXECUTION COPY
GUARANTEE AGREEMENT dated as of October 17, among
each of the subsidiaries listed on Schedule I hereto
(each such subsidiary individually, a "Subsidiary
Guarantor" and collectively, the "Subsidiary
Guarantors") of J. CREW OPERATING CORP., a Delaware
corporation (the "Borrower"), J. CREW GROUP, INC., a
New York corporation ("Holdings" and, together with
the Subsidiary Guarantors, the "Guarantors"), and THE
CHASE MANHATTAN BANK, a New York banking corporation
("Chase"), as collateral agent (in such capacity, the
"Collateral Agent") for the Secured Parties (as
defined in the Security Agreement, Exhibit G to the
Credit Agreement referred to below).
Reference is made to the Credit Agreement dated as of
October 17, 1997 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among Holdings, the
Borrower, the lenders from time to time party thereto (the
"Lenders"), Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
as syndication agent, and Chase, as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders, Collateral
Agent and, with respect to Letters of Credit and Acceptances
issued under the Credit Agreement, as issuing bank (in such
capacity, the "Issuing Bank"). Capitalized terms used herein and
not defined herein shall have the meanings assigned to such terms
in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower,
and the Issuing Bank has agreed to issue Letters of Credit and
Acceptances for the account of the Borrower, pursuant to, and
upon the terms and subject to the conditions specified in, the
Credit Agreement. In connection therewith, each Guarantor has
agreed to guarantee the Obligations (as defined below) by
entering into this Agreement. Each of the Subsidiary Guarantors
is a directly or indirectly wholly owned Subsidiary of the
Borrower, and each of the Subsidiary Guarantors and Holdings
acknowledges that it will derive substantial benefit from the
making of the Loans by the Lenders, and the issuance of the
Letters of Credit and Acceptances by the Issuing Bank. The
obligations of the Lenders to make Loans and of the Issuing Bank
to issue Letters of Credit and Acceptances are conditioned on,
among other things, the execution and delivery by the Guarantors
of a Guarantee Agreement in the form hereof. As consideration
therefor and in order to induce the Lenders to make Loans and the
Issuing Bank to issue Letters of Credit and Acceptances, the
Guarantors are willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Guarantor unconditionally
guarantees, jointly with the other Guarantors and severally, as a
primary obligor and not merely as a surety, (a) the due and
punctual payment of (i) the principal of and premium, if any, and
interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise, (ii) each
payment required to be made by the Borrower under the
Credit Agreement in respect of any Letter of Credit or any
Acceptance, when and as due, including payments in respect of
reimbursement of disbursements made by the Issuing Bank with
respect thereto, interest thereon and obligations to provide,
under certain circumstances, cash collateral in connection
therewith and (iii) all other monetary obligations, including
fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding),
of the Loan Parties to the Secured Parties under the Credit
Agreement and the other Loan Documents, (b) the due and punctual
performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit
Agreement, this Agreement and the other Loan Documents and (c)
unless otherwise agreed to in writing by the applicable Lender
party thereto, the due and punctual payment and performance of
all obligations of the Borrower under each Hedging Agreement
entered into with any counterparty that was a Lender at the time
such Hedging Agreement was entered into (all the monetary and
other obligations described in the preceding clauses (a) through
(c) being collectively called the "Obligations"). Each Guarantor
further agrees that the Obligations may be extended or renewed,
in whole or in part, without notice to or further assent from it.
SECTION 2. Obligations Not Waived. To the fullest
extent permitted by applicable law, each Guarantor waives
presentment to, demand of payment from and protest to the
Borrower of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment.
To the fullest extent permitted by applicable law, the
obligations of each Guarantor hereunder shall not be affected by
(a) the failure of the Collateral Agent or any other Secured
Party to assert any claim or demand or to enforce or exercise any
right or remedy against the Borrower or any other Guarantor under
the provisions of the Credit Agreement, any other Loan Document
or otherwise, (b) any rescission, waiver (except the effect of
any waiver obtained pursuant to Section 12(b)), amendment or
modification of, or any release from any of the terms or
provisions of this Agreement, any other Loan Document, any
Guarantee or any other agreement, including with respect to any
other Guarantor under this Agreement or (c) the failure to
perfect any security interest in, or the release of, any of the
security held by or on behalf of the Collateral Agent or any
other Secured Party.
SECTION 3. Security. Each of the Guarantors authorizes
the Collateral Agent and each of the other Secured Parties, to
(a) take and hold security for the payment of this Guarantee and
the Obligations and exchange, enforce, waive and release any such
security, (b) apply such security and direct the order or manner
of sale thereof as they in their sole discretion may determine
and (c) release or substitute any one or more endorsees, other
Guarantors of other obligors.
SECTION 4. Guarantee of Payment. Each Guarantor
further agrees that its guarantee constitutes a guarantee of
payment when due and not of collection, and waives any right to
require that any resort be had by the Collateral Agent or any
other Secured Party to any of the security held for payment of
the Obligations or to any balance of any deposit account or
credit on the books of the Collateral Agent or any other Secured
Party in favor of the Borrower or any other person.
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SECTION 5. No Discharge or Diminishment of Guarantee.
The obligations of each Guarantor hereunder shall not be subject
to any reduction, limitation, impairment or termination for any
reason (other than the indefeasible payment in full in cash of
the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations,
and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations
of each Guarantor hereunder shall not be discharged or impaired
or otherwise affected by the failure of the Collateral Agent or
any other Secured Party to assert any claim or demand or to
enforce any remedy under the Credit Agreement, any other Loan
Document or any other agreement, by any waiver or modification of
any provision of any thereof, by any default, failure or delay,
wilful or otherwise, in the performance of the Obligations, or by
any other act or omission that may or might in any manner or to
any extent vary the risk of any Guarantor or that would otherwise
operate as a discharge of each Guarantor as a matter of law or
equity (other than the indefeasible payment in full in cash of
all the Obligations).
SECTION 6. Defenses of Borrower Waived. To the fullest
extent permitted by applicable law, each of the Guarantors waives
any defense based on or arising out of any defense of the
Borrower or the unenforceability of the Obligations or any part
thereof from any cause, or the cessation from any cause of the
liability of the Borrower, other than the final and indefeasible
payment in full in cash of the Obligations. The Collateral Agent
and the other Secured Parties may, at their election, foreclose
on any security held by one or more of them by one or more
judicial or nonjudicial sales, accept an assignment of any such
security in lieu of foreclosure, compromise or adjust any part of
the Obligations, make any other accommodation with the Borrower
or any other guarantor or exercise any other right or remedy
available to them against the Borrower or any other guarantor,
without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Obligations have
been fully, finally and indefeasibly paid in cash. Pursuant to
applicable law, each of the Guarantors waives any defense arising
out of any such election even though such election operates,
pursuant to applicable law, to impair or to extinguish any right
of reimbursement or subrogation or other right or remedy of such
Guarantor against the Borrower or any other Guarantor or
guarantor, as the case may be, or any security.
SECTION 7. Agreement to Pay; Subordination. In
furtherance of the foregoing and not in limitation of any other
right that the Collateral Agent or any other Secured Party has at
law or in equity against any Guarantor by virtue hereof, upon the
failure of the Borrower or any other Loan Party to pay any
Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or
otherwise, each Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to the Collateral Agent or such other
Secured Party as designated thereby in cash the amount of such
unpaid Obligations. Upon payment by any Guarantor of any sums to
the Collateral Agent or any Secured Party as provided above, all
rights of such Guarantor against the Borrower arising as a result
thereof by way of right of subrogation, contribution,
reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible
payment in full in cash of all the Obligations. If any amount shall
erroneously be paid to any Guarantor on account of such
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subrogation, contribution, reimbursement, indemnity or similar
right, such amount shall be held in trust for the benefit of the
Secured Parties and shall forthwith be paid to the Collateral
Agent to be credited against the payment of the Obligations,
whether matured or unmatured, in accordance with the terms of the
Loan Documents.
SECTION 8. Information. Each of the Guarantors assumes
all responsibility for being and keeping itself informed of the
Borrower's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks that
such Guarantor assumes and incurs hereunder, and agrees that none
of the Collateral Agent or the other Secured Parties will have
any duty to advise any of the Guarantors of information known to
it or any of them regarding such circumstances or risks.
SECTION 9. Representations and Warranties. Each of the
Subsidiary Guarantors represents and warrants as to itself that
all representations and warranties relating to it contained in
the Credit Agreement are true and correct in all material
respects.
SECTION 10. Termination. The Guarantees made hereunder
(a) shall terminate when all the Obligations have been indefeasibly
paid in full and the Lenders have no further commitment to lend
under the Credit Agreement, the LC and Acceptance Exposure has
been reduced to zero and the Issuing Bank has no further
obligation to issue Letters of Credit or Acceptances under the
Credit Agreement and (b) shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any
part thereof, of any Obligation is rescinded or must otherwise be
restored by any Secured Party or any Guarantor upon the
bankruptcy or reorganization of the Borrower, any Guarantor or
otherwise.
SECTION 11. Binding Effect; Several Agreement;
Assignments. Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the Guarantors that are
contained in this Agreement shall bind and inure to the benefit
of the Secured Parties and their respective successors and
assigns. This Agreement shall become effective as to any
Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Collateral Agent, and
a counterpart hereof shall have been executed on behalf of the
Collateral Agent, and thereafter shall be binding upon such
Guarantor and the Collateral Agent and their respective
successors and assigns, and shall inure to the benefit of such
Guarantor, the Collateral Agent and the other Secured Parties,
and their respective successors and assigns, except that no
Guarantor shall have the right to assign its rights or
obligations hereunder or any interest herein (and any such
attempted assignment shall be void), except as expressly
contemplated by this Agreement or the other Loan Documents. If
all of the capital stock of a Subsidiary Guarantor is sold,
transferred or otherwise disposed of pursuant to a transaction
permitted by Section 6.05 of the Credit Agreement, such
Subsidiary Guarantor shall be released from its obligations under
this Agreement without further action. This Agreement shall be
construed as a separate agreement with respect to each Guarantor
and may be amended, modified, supplemented, waived or released
with respect to any Guarantor without the approval of any other
Guarantor and without affecting the obligations of any other
Guarantor hereunder.
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SECTION 12. Waivers; Amendment. (a) No failure or delay
of the Collateral Agent in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the
Collateral Agent hereunder and of the other Secured Parties under
the other Loan Documents are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure by
any Guarantor therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) below, and then such
waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand
on any Guarantor in any case shall entitle such Guarantor to any
other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof
may be waived, amended or modified except pursuant to a written
agreement entered into between the Guarantors with respect to
which such waiver, amendment or modification relates and the
Collateral Agent, with the prior written consent of the Required
Lenders (except as otherwise provided in the Credit Agreement).
SECTION 13. Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 14. Notices. All communications and notices
hereunder shall be in writing and given as provided in Section
9.01 of the Credit Agreement. All communications and notices
hereunder to each Subsidiary Guarantor shall be given to it at
its address set forth in Schedule I.
SECTION 15. Survival of Agreement; Severability. (a)
All covenants, agreements, representations and warranties made by
the Guarantors herein shall be considered to have been relied
upon by the Collateral Agent and the other Secured Parties and
shall survive the making by the Lenders of the Loans and the
issuance of the Letters of Credit and Acceptances by the Issuing
Bank regardless of any investigation made by the Secured Parties
or on their behalf, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan
or any other fee or amount payable under this Agreement or any
other Loan Document is outstanding and unpaid or the LC and
Acceptance Exposure does not equal zero and as long as the
Commitments and the Revolving Commitment have not been
terminated.
(b) In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The
parties shall endeavor in good-faith negotiations to replace the
invalid, illegal
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or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the
invalid, illegal or unenforceable provisions.
SECTION 16. Counterparts. This Agreement may be
executed in counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute a
single contract, and shall become effective as provided in
Section 11. Delivery of an executed signature page to this
Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 17. Rules of Interpretation. The rules of
interpretation specified in Section 1.03 of the Credit Agreement
shall be applicable to this Agreement.
SECTION 18. Jurisdiction; Consent to Service of
Process. (a) 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 Agreement or the
other Loan Documents, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court.
Each of the parties hereto 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 Agreement shall affect
any right that the Collateral Agent or any other Secured Party
may otherwise have to bring any action or proceeding relating to
this Agreement or the other Loan Documents against any Guarantor
or its properties in the courts of any jurisdiction.
(b) Each Guarantor hereby 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 Agreement or the other Loan
Documents in any New York State or Federal court. Each of the
parties hereto 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.
(c) Each party to this Agreement irrevocably consents
to service of process in the manner provided for notices in
Section 14. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner
permitted by law.
SECTION 19. Waiver of Jury Trial. EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
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TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND
THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 19.
SECTION 20. Additional Subsidiary Guarantors. Pursuant
to Section 5.12 of the Credit Agreement, each Subsidiary of the
Borrower which is also a Subsidiary Loan Party that was not in
existence on the date of the Credit Agreement or was an Inactive
Subsidiary is required to enter into this Agreement as a
Subsidiary Guarantor (or upon ceasing to be an Inactive
Subsidiary) upon becoming such a Subsidiary. Upon execution and
delivery after the date hereof by the Collateral Agent and such a
Subsidiary of an instrument in the form of Annex 1 hereto, such
Subsidiary shall become a Subsidiary Guarantor hereunder with
effect from and after the date of such execution and delivery.
The execution and delivery of any such instrument shall not
require the consent of any other Guarantor hereunder. The rights
and obligations of each Guarantor hereunder shall remain in full
force and effect notwithstanding the addition of any new
Subsidiary Guarantor as a party to this Agreement.
SECTION 21. Right of Setoff. If an Event of Default
shall have occurred and be continuing, each Secured Party 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 special, time or demand, provisional or
final) at any time held and other Indebtedness at any time owing
by such Secured Party to or for the credit or the account of any
Guarantor against any or all the obligations of such Guarantor
now or hereafter existing under this Agreement and the other Loan
Documents held by such Secured Party, irrespective of whether or
not such Secured Party shall have made any demand under this
Agreement or any other Loan Document and although such
obligations may be unmatured. The rights of each Secured Party
under this Section 21 are in addition to other rights and
remedies (including other rights of setoff) which such Secured
Party may have.
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IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the day and year first above written.
EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE I HERETO,
by /s/ Xxxxxxx X. XxXxxx
--------------------------
Name:
Title: Authorized Officer
J. CREW GROUP, INC.,
as a Guarantor
by /s/ Xxxxxxx X. XxXxxx
--------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by /s/ Xxxxx X. Xxxxxx
--------------------------
Name:
Title:
8
SCHEDULE I TO THE
GUARANTEE AGREEMENT
Guarantor [Address]
Annex 1 to the
Guarantee Agreement
SUPPLEMENT NO. dated as of , to the Guarantee
Agreement dated as of October 17, 1997, among each of
the subsidiaries listed on Schedule I thereto (each
such subsidiary individually, a "Subsidiar Guarantor"
and collectively, the "Subsidiary Guarantors") of J.
CREW OPERATING CORP., a Delaware corporation (the
"Borrower"), J. CREW GROUP, INC. a New York
corporation ("Holdings" and, together with the
Subsidiary Guarantors, the "Guarantors"), and THE
CHASE MANHATTAN BANK, a New York banking corporation
("Chase"), as collateral agent (the "Collateral
Agent") for the Secured Parties (as defined in the
Security Agreement, Exhibit G to the Credit Agreement
referred to below).
A. Reference is made to the Credit Agreement dated as
of October 17, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among
Holdings, the Borrower, the lenders from time to time party
thereto (the "Lenders"), Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, as syndication agent, and Chase, as administrative
agent (in such capacity the "Administrative Agent") and, with
respect to Letters of Credit and Acceptances issued under the
Credit Agreement as issuing bank (in such capacity, the "Issuing
Bank"). Capitalized terms used herein and not defined herein
shall have the meanings assigned to such terms in the Credit
Agreement.
B. The Guarantors have entered into the Guarantee
Agreement in order to induce the Lenders to make Loans and the
Issuing Bank to issue Letters of Credit and Acceptances. Pursuant
to Section 5.12 of the Credit Agreement, each Subsidiary of the
Borrower who is also a Subsidiary Loan Party that was not in
existence or not such a Subsidiary on the date of the Credit
Agreement or was an Inactive Subsidiary is required to enter into
the Guarantee Agreement as a Subsidiary Guarantor upon becoming
such a Subsidiary (or upon ceasing to be an Inactive Subsidiary).
Section 20 of the Guarantee Agreement provides that such
additional Subsidiaries of the Borrower may become Subsidiary
Guarantors under the Guarantee Agreement by execution and
delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary of the Borrower (the "New Subsidiary
Guarantor") is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Subsidiary
Guarantor under the Guarantee Agreement in order to induce the
Lenders to make additional Loans and the Issuing Bank to issue
additional Letters of Credit and Acceptances and as consideration
for Loans previously made and Letters of Credit and Acceptances
previously issued.
Accordingly, the Collateral Agent and the New
Subsidiary Guarantor agree as follows:
SECTION 1. In accordance with Section 20 of the
Guarantee Agreement, the New Subsidiary Guarantor by its
signature below becomes a Subsidiary Guarantor under the
Guarantee Agreement with effect from and after the date of
execution and delivery of this
Agreement in accordance with Section 3 hereof and the New
Subsidiary Guarantor hereby (a) agrees to all the terms and
provisions of the Guarantee Agreement applicable to it as a
Subsidiary Guarantor thereunder and (b) represents and warrants
that the representations and warranties made by it as a
Subsidiary Guarantor thereunder are true and correct on and as of
the date hereof. Each reference to a "Subsidiary Guarantor" in
the Guarantee Agreement shall be deemed to include the New
Subsidiary Guarantor. The Guarantee Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Subsidiary Guarantor represents and
warrants to the Collateral Agent and the other Secured Parties
that this Supplement has been duly authorized, executed and
delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in
counterparts, each of which shall constitute an original, but all
of which when taken together shall constitute a single contract.
This Supplement shall become effective when the Collateral Agent
shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Subsidiary
Guarantor and the Collateral Agent. Delivery of an executed
signature page to this Supplement by facsimile transmission shall
be as effective as delivery of a manually executed counterpart of
this Supplement.
SECTION 4. Except as expressly supplemented hereby,
the Guarantee Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 6. In case any one or more of the provisions
contained in this Supplement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and
in the Guarantee Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a
particular provision hereof in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any
other jurisdiction). The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the
invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder
shall be in writing and given as provided in Section 14 of the
Guarantee Agreement. All communications and notices hereunder to
the New Subsidiary Guarantor shall be given to it at the address
set forth under its signature below, with a copy to the Borrower.
SECTION 8. The New Subsidiary Guarantor agrees to
reimburse the Collateral Agent for its reasonable out-of-pocket
expenses in connection with this Supplement, including the fees,
disbursements and other charges of counsel for the Collateral
Agent.
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IN WITNESS WHEREOF, the New Subsidiary Guarantor and
the Collateral Agent have duly executed this Supplement to the
Guarantee Agreement as of the day and year first above written.
[Name of New Subsidiary Guarantor],
by
--------------------------
Name:
Title:
Address:
THE CHASE MANHATTAN BANK,
as Collateral Agent,
by
--------------------------
Name:
Title:
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