EXHIBIT 4.7
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SUBSIDIARY GUARANTEE
made by
the Subsidiaries of
CONSTELLATION 3D, INC.
in favor of
THE INVESTOR IDENTIFIED HEREIN
Dated as of October 1, 2001
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TABLE OF CONTENTS
SECTION 1. DEFINED TERMS ................................................. 1
1.1 Definitions ..................................................... 1
1.2 Other Definitional Provisions ................................... 2
SECTION 2. GUARANTEE ..................................................... 2
2.1 Guarantee ....................................................... 2
2.2 Right Of Contribution ........................................... 2
2.3 No Subrogation .................................................. 3
2.4 Amendments, Etc. With Respect To The Obligations ................ 3
2.5 Guarantee Absolute And Unconditional ............................ 3
2.6 Reinstatement ................................................... 4
2.7 Payments......................................................... 4
SECTION 3. REPRESENTATIONS AND WARRANTIES ................................ 4
SECTION 4. COVENANTS ..................................................... 5
SECTION 5. MISCELLANEOUS ................................................. 5
5.1 Amendments In Writing ........................................... 5
5.2 Notices ......................................................... 5
5.3 No Waiver By Course Of Conduct; Cumulative Remedies ............. 5
5.4 Enforcement Expenses; Indemnification ........................... 5
5.5 Successors And Assigns .......................................... 6
5.6 Set-Off ......................................................... 6
5.7 Counterparts .................................................... 6
5.8 Severability .................................................... 6
5.9 Section Headings ................................................ 7
5.10 Integration ..................................................... 7
5.11 Governing Law ................................................... 7
5.12 Submission To Jurisdiction; Waivers7
5.13 Acknowledgements ................................................ 7
5.14 Additional Guarantors ........................................... 8
5.15 Release Of Guarantors ........................................... 8
5.16 Waiver Of Jury Trial ............................................ 8
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SUBSIDIARY GUARANTEE, dated as of October 1, 2001, made by each
of the signatories hereto (together with any other entity that may become a
party hereto as provided herein, the "Guarantors"), in favor of Halifax Fund,
L.P., a Cayman Islands limited partnership as the Investor under the Exchange
Agreement, dated as of the date hereof, between CONSTELLATION 3D, INC., a
Delaware corporation (the "Company") and the Investor.
W I T N E S S E T H:
WHEREAS, the Company and the Investor are entering into the
Exchange Agreement, dated as of the date hereof (the "Exchange Agreement")
pursuant to which the Company will satisfy certain obligations to the Investor
contained in prior agreements in return for, among other things, the issuance to
the Investor by the Company of $5,000,000 aggregate principal amount of its 5%
Senior Secured Convertible Debentures (the "Debentures") and its Optional
Debenture Warrant (the "Warrant") that entitles the Investor to purchase an
additional $5,000,000 aggregate principal amount of Debentures;
WHEREAS, the execution and delivery of this Guarantee by the
Guarantors to the Investor is required under the Exchange Agreement;
NOW, THEREFORE, in consideration of the premises and to induce
the Investor to enter into the Exchange Agreement and to carry out the
transactions contemplated thereby, each Guarantor hereby agrees with the
Investor as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms
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defined in the Exchange Agreement and used herein shall have the meanings given
to them in the Exchange Agreement.
(b) The following terms shall have the following meanings:
"GUARANTEE": this Subsidiary Guarantee, as the same may be
amended, supplemented or otherwise modified from time to time.
"OBLIGATIONS": the collective reference to the obligation to pay
the unpaid principal of and interest on the Debentures (including any future
Debentures issued to the Investor upon exercise of the Optional Debenture
Warrant) and all other obligations and liabilities of the Company to the
Investor (including, without limitation, interest accruing at the then
applicable rate provided in the Exchange Agreement after the maturity of the
Debentures and interest accruing at the then applicable rate provided in the
Exchange Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Company, if a claim for post-filing or post-petition interest is allowed in
such proceeding) whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, the Exchange Agreement, this Guarantee or the other
Transaction Documents (as defined in the Exchange Agreement), or any other
document made, delivered or given in connection therewith, in each case whether
on account of principal, interest, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all reasonable fees and disbursements
of counsel to the
Investor that are required to be paid by the Company pursuant to the terms of
any of the foregoing agreements).
1.2 Other Definitional Provisions. The words "hereof," "herein",
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"hereto" and "hereunder" and words of similar import when used in this Guarantee
shall refer to this Guarantee as a whole and not to any particular provision of
this Guarantee, and Section and Schedule references are to this Guarantee unless
otherwise specified.
(a) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. GUARANTEE
2.1 Guarantee. (a) The Guarantors hereby, jointly and
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severally, unconditionally and irrevocably, guarantee to the Investor and its
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Company when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) Anything herein or in any other Transaction Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Transaction Documents shall in no event exceed the amount which
can be guaranteed by such Guarantor under applicable federal and state laws,
including laws relating to the insolvency of debtors, fraudulent conveyance or
transfer or laws affecting the rights of creditors generally (after giving
effect to the right of contribution established in Section 2.2).
(c) Each Guarantor agrees that the Obligations may at any time
and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Investor hereunder.
(d) The guarantee contained in this Section 2 shall remain in
full force and effect until all the Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2 shall have been
satisfied by payment in full.
(e) No payment made by the Company, any of the Guarantors, any
other guarantor or any other Person or received or collected by the Investor
from the Company, any of the Guarantors, any other guarantor or any other Person
by virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of any Guarantor hereunder which shall, notwithstanding any such
payment (other than any payment made by such Guarantor in respect of the
Obligations or any payment received or collected from such Guarantor in respect
of the Obligations), remain liable for the Obligations up to the maximum
liability of such Guarantor hereunder until the Obligations are paid in full.
2.2 Right Of Contribution. Each Guarantor hereby agrees that to
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the extent that a Guarantor shall have paid more than its proportionate share of
any payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any
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other Guarantor hereunder which has not paid its proportionate share of such
payment. Each Guarantor's right of contribution shall be subject to the terms
and conditions of Section 2.3. The provisions of this Section 2.2 shall in no
respect limit the obligations and liabilities of any Guarantor to the Investor,
and each Guarantor shall remain liable to the Investor for the full amount
guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any
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Guarantor hereunder or any set-off or application of funds of any Guarantor by
the Investor, no Guarantor shall be entitled to be subrogated to any of the
rights of the Investor against the Company or any other Guarantor or any
collateral security or guarantee or right of offset held by the Investor for the
payment of the Obligations, nor shall any Guarantor seek or be entitled to seek
any contribution or reimbursement from the Company or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing to
the Investor by the Company on account of the Obligations are paid in full. If
any amount shall be paid to any 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 such Guarantor in trust for the Investor, segregated
from other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Investor in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Investor, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
the Investor may determine.
2.4 Amendments, Etc. With Respect To The Obligations. Each
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Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Obligations made
by the Investor may be rescinded by the Investor and any of the Obligations
continued, and the Obligations, or the liability of any other Person upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Investor, and the Exchange Agreement and the
other Transaction Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Investor may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Investor for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. The Investor shall have no obligation to protect,
secure, perfect or insure any Lien at any time held by them as security for the
Obligations or for the guarantee contained in this Section 2 or any property
subject thereto.
2.5 Guarantee Absolute And Unconditional. Each Guarantor waives
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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 Investor upon the
guarantee contained in this Section 2 or acceptance of the guarantee contained
in this Section 2; 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 the guarantee contained in this Section 2;
and all dealings between the Company and any of the Guarantors, on the one hand,
and the Investor, on the other hand, likewise shall be conclusively presumed to
have been had or consummated in reliance upon the guarantee contained in this
Section 2. Each Guarantor waives to the extent permitted by law diligence,
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presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Company or any of the Guarantors with respect to the Obligations.
Each Guarantor understands and agrees that the guarantee contained in this
Section 2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of the
Exchange Agreement or any other Transaction Document, 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 Investor, (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 Company
or any other Person against the Investor, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Company or such
Guarantor) which constitutes, or might be construed to constitute, an equitable
or legal discharge of the Company for the Obligations, or of such Guarantor
under the guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against any Guarantor, the Investor may, but shall be under
no obligation to, make a similar demand on or otherwise pursue such rights and
remedies as they may have against the Company, any other Guarantor 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 Investor to
make any such demand, to pursue such other rights or remedies or to collect any
payments from the Company, any other Guarantor 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 Company, any other Guarantor or any other Person
or any such collateral security, guarantee or right of offset, shall not relieve
any 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 Investor against any Guarantor. For the purposes hereof,
"demand" shall include the commencement and continuance of any legal
proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2
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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 Investor upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company or any
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Company or any
Guarantor or any substantial part of its property, or otherwise, all as though
such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments
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hereunder will be paid to the Investor without set-off or counterclaim in U.S.
dollars at the address set forth or referred to in Section 10(f) of the Exchange
Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 To induce the Investor to enter into the Exchange Agreement
and to make the exchange thereunder, each Guarantor hereby represents and
warrants to the Investor that the representations and warranties set forth in
the Exchange Agreement and the Security Agreement as they relate to such
Guarantor or to the Transaction Documents to which such Guarantor is a party,
each of which is hereby incorporated herein by reference, are true and correct
as of each time such representations are deemed to be made pursuant to such
Agreements, and the Investor shall be entitled to rely on each of them as if
they were fully set forth herein, PROVIDED that
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each reference in each such representation and warranty to the Company's
knowledge shall, for the purposes of this Section 3, be deemed to be a reference
to such Guarantor's knowledge.
SECTION 4. COVENANTS
Each Guarantor covenants and agrees with the Investor that, from
and after the date of this Guarantee until the Obligations shall have been paid
in full, such Guarantor (x) shall take, and/or shall refrain from taking, as the
case may be, each commercially reasonable action that is necessary to be taken
or not taken, as the case may be, so that no Default or Event of Default is
caused by the failure to take such action or to refrain from taking such action
by such Guarantor and (y) without limitation, shall take, and/or refrain from
taking, as the case may be, all actions so that all covenants in Paragraphs 4, 5
and 6 of the Exchange Agreement and Section 2 of the Security Agreement are
performed in accordance with their terms.
SECTION 5. MISCELLANEOUS
5.1 Amendments In Writing. None of the terms or provisions of
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this Guarantee may be waived, amended, supplemented or otherwise modified except
in accordance with Paragraph 10(e) of the Exchange Agreement.
5.2 Notices. All notices, requests and demands to or upon the
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Investor or any Guarantor hereunder shall be effected in the manner provided for
in Paragraph 10(f) of the Exchange Agreement; PROVIDED that any such notice,
request or demand to or upon any Guarantor shall be addressed to such Guarantor
at its notice address set forth on SCHEDULE 1.
5.3 No Waiver By Course Of Conduct; Cumulative Remedies. The
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Investor shall not by any act (except by a written instrument pursuant to
Section 5.1), 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
Investor, 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 Investor of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Investor 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.
5.4 Enforcement Expenses; Indemnification. (a) (a) Each
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Guarantor agrees to pay, or reimburse the Investor for, all its costs and
expenses incurred in collecting against such Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under
this Guarantee and the other Transaction Documents to which such Guarantor is a
party, including, without limitation, the reasonable fees and disbursements of
counsel to the Investor.
(b) Each Guarantor agrees to pay, and to save the Investor
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 in connection with any of the transactions
contemplated by this Guarantee.
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(c) Each Guarantor agrees to pay, and to save the Investor
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 Guarantee to the extent the Company would
be required to do so pursuant to the Exchange Agreement.
(d) The agreements in this Section shall survive repayment of
the obligations and all other amounts payable under the Exchange Agreement and
the other Transaction Documents.
5.5 Successors And Assigns. This Guarantee shall be binding
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upon the successors and assigns of each Guarantor and shall inure to the benefit
of the Investor and their respective successors and assigns; PROVIDED that no
Guarantor may assign, transfer or delegate any of its rights or obligations
under this Guarantee without the prior written consent of the Investor.
5.6 Set-Off. Each Guarantor hereby irrevocably authorizes the
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Investor at any time and from time to time while an Event of Default under any
of the Transaction Documents shall have occurred and be continuing, without
notice to such Guarantor or any other Guarantor, any such notice being expressly
waived by each 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 Investor to or for the credit or the
account of such Guarantor, or any part thereof in such amounts as the Investor
may elect, against and on account of the obligations and liabilities of such
Guarantor to the Investor hereunder and claims of every nature and description
of the Investor against such Guarantor, in any currency, whether arising
hereunder, under the Exchange Agreement, any other Loan Document or otherwise,
as the Investor may elect, whether or not the Investor have made any demand for
payment and although such obligations, liabilities and claims may be contingent
or unmatured. The Investor shall notify such Guarantor promptly of any such
set-off and the application made by the Investor 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 Investor under this Section are
in addition to other rights and remedies(including, without limitation, other
rights of set-off) which the Investor may have.
5.7 Counterparts. This Guarantee may be executed by one or more
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of the parties to this Guarantee 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.
5.8 Severability. Any provision of this Guarantee which is
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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.
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5.9 Section Headings. The Section headings used in this
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Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
5.10 Integration. This Guarantee and the other Transaction
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Documents represent the agreement of the Guarantors and the Investor with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Investor relative to subject
matter hereof and thereof not expressly set forth or referred to herein or in
the other Transaction Documents.
5.11 GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND
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CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.12 Submission To Jurisdiction; Waivers. Each Guarantor hereby
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irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Guarantee and the other Transaction 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, located in New York County, 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 such
Guarantor at its address referred to in Section 5.2 or at such other address of
which the Investor 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 ▇▇▇ 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.
5.13 Acknowledgements. Each Guarantor hereby acknowledges that:
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(a) it has been advised by counsel in the negotiation,
execution and delivery of this Guarantee and the other Transaction Documents to
which it is a party;
(b) the Investor has no fiduciary relationship with or duty to
any Guarantor arising out of or in connection with this Guarantee or any of the
other Transaction Documents,
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and the relationship between the Guarantors, on the one hand, and the Investor,
on the other hand, in connection herewith or therewith is solely that of debtor
and creditor; and
(c) no joint venture is created hereby or by the other
Transaction Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Guarantors and the Investor.
5.14 Additional Guarantors. The Company shall cause each of its
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subsidiaries formed or acquired on or subsequent to the date hereof to become a
Guarantor for all purposes of this Guarantee by executing and delivering an
Assumption Agreement in the form of Annex 1 hereto.
5.15 Release Of Guarantors. Subject to Section 2.6, each
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Guarantor will be released from all liability hereunder concurrently with the
repayment in full of all amounts owed under the Exchange Agreement, the
Debentures and the other Transaction Documents.
5.16 WAIVER OF JURY TRIAL. EACH GUARANTOR AND, BY ACCEPTANCE OF
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THE BENEFITS HEREOF, THE INVESTOR, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE AND
FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
to be duly executed and delivered as of the date first above written.
Guarantors:
VELOR INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
TRIDSTORE IP, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
TRID STORE VOSTOK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
C-TRID ISRAEL LTD
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
TRIDSV, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
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CONSTELLATION 3D TRUST LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
10
SCHEDULE 1
NOTICE ADDRESSES OF GUARANTORS
Except otherwise noted the Notice Address of each Guarantor is:
[to be provided]
Annex 1 to
SUBSIDIARY GUARANTEE
ASSUMPTION AGREEMENT, dated as of ____ __, ______ made by
______________________________, a ______________ corporation (the "ADDITIONAL
GUARANTOR"), in favor the Investor pursuant to the Exchange Agreement referred
to below. All capitalized terms not defined herein shall have the meaning
ascribed to them in such Exchange Agreement.
W I T N E S S E T H :
WHEREAS, Constellation 3D, Inc. (the "Company") and the Investor
have entered into an Exchange Agreement, dated as of September ___, 2001 (as
amended, supplemented or otherwise modified from time to time, the "EXCHANGE
AGREEMENT");
WHEREAS, in connection with the Exchange Agreement, the Company
and its Subsidiaries (other than the Additional Guarantor) have entered into the
Subsidiary Guarantee, dated as of September __, 2001 (as amended, supplemented
or otherwise modified from time to time, the "GUARANTEE") in favor of the
Investor;
WHEREAS, the Exchange Agreement requires the Additional Guarantor
to become a party to the Guarantee; and
WHEREAS, the Additional Guarantor has agreed to execute and
deliver this Assumption Agreement in order to become a party to the Guarantee;
NOW, THEREFORE, IT IS AGREED:
1. GUARANTEE. By executing and delivering this Assumption
Agreement, the Additional Guarantor, as provided in Section 5.14 of the
Guarantee, hereby becomes a party to the Guarantee as a Guarantor thereunder
with the same force and effect as if originally named therein as a Guarantor
and, without limiting the generality of the foregoing, hereby expressly assumes
all obligations and liabilities of a Guarantor thereunder. The information set
forth in Annex 1-A hereto is hereby added to the information set forth in
Schedule 1 to the Guarantee. The Additional Guarantor hereby represents and
warrants that each of the representations and warranties contained in Section 3
of the Guarantee is true and correct on and as the date hereof (after giving
effect to this Assumption Agreement) as if made on and as of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GUARANTOR]
By:
Name:
Title: