Exhibit 4.14
[EXECUTION COPY]
PARENT GUARANTY
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This PARENT GUARANTY (as amended, supplemented, amended and restated
or otherwise modified from time to time, this "GUARANTY"), dated as of June 30,
1997, is made by PLI HOLDINGS INC., a Delaware corporation (the "GUARANTOR"), in
favor of the Agents (as defined below) for each of the Secured Parties (as
defined below).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to a Credit Agreement, dated as of the date hereof
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "CREDIT AGREEMENT"), among ▇▇▇▇▇▇ Health Products Group Inc., a
Delaware corporation ("LHPG" or the "U.S. BORROWER" (prior to the Assumption)),
Vita Health Company (1985) Ltd., a Manitoba corporation (the "CANADIAN
BORROWER", and together with the U.S. Borrower, the "BORROWERS"), the various
financial institutions as are or may become parties thereto which extend a
Commitment under the U.S. Facility (collectively, the "U.S. LENDERS"), the
various financial institutions as are or may become parties thereto which extend
a Commitment under the Canadian Facility (collectively, the "CANADIAN LENDERS",
and together with the U.S. Lenders, the "LENDERS"), The Bank of Nova Scotia
("SCOTIABANK"), as agent for the U.S. Lenders under the U.S. Facility (in such
capacity, the "U.S. AGENT"), and Scotiabank, as agent for the Canadian Lenders
under the Canadian Facility (in such capacity, the "CANADIAN AGENT", and
together with the U.S. Agent, collectively, the "AGENTS"), the Lenders and the
Issuers have extended Commitments to make Credit Extensions to the Borrowers;
WHEREAS, as contemplated by the Credit Agreement, immediately
following the making of the initial Credit Extensions, ▇▇▇▇▇▇ Health Products
Inc., a Delaware corporation ("LEINER") and LHPG have delivered the Assumption
Agreement, pursuant to which the Guarantor has assumed (the "ASSUMPTION") the
rights and obligations of
Exhibit 4.13
LHPG as (and has become) the "U.S. Borrower" under the Credit Agreement;
WHEREAS, as a condition precedent to the making of the Credit
Extensions (including the initial Credit Extension) and the execution and
delivery of the Assumption Agreement under the Credit Agreement, the Guarantor
is required to execute and deliver this Guaranty; and
WHEREAS, the Guarantor has duly authorized the execution, delivery and
performance of this Guaranty;
NOW THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, and in order to induce the Lenders and the Issuers
to make Credit Extensions (including the initial Credit Extensions) to the
Borrowers pursuant to the Credit Agreement, and to induce Secured Parties to
enter into Rate Protection Agreements, if any, the Guarantor agrees, for the
benefit of each Secured Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. CERTAIN TERMS. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"AGENTS" is defined in the FIRST RECITAL.
"BORROWERS" is defined in the FIRST RECITAL.
"CANADIAN AGENT" is defined in the FIRST RECITAL.
"CANADIAN BORROWER" is defined in the FIRST RECITAL.
"CANADIAN LENDERS" is defined in the FIRST RECITAL.
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"CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"GUARANTOR" is defined in the PREAMBLE.
"GUARANTY" is defined in the PREAMBLE.
"LENDERS" is defined in the FIRST RECITAL.
"SCOTIABANK" is defined in the FIRST RECITAL.
"SECURED PARTY" means, as the context may require, the Lenders, the
Issuers, the Agents, each counterparty to a Rate Protection Agreement that is
(or at the time such Rate Protection Agreement is entered into, was) a Lender or
an Affiliate thereof and (in each case), each of their respective successors,
permitted transferees and permitted assigns.
"U.S. AGENT" is defined in the FIRST RECITAL.
"U.S. BORROWER" is defined in the FIRST RECITAL.
"U.S. LENDERS" is defined in the FIRST RECITAL.
SECTION 1.2. CREDIT AGREEMENT DEFINITIONS. Unless otherwise defined
herein or the context otherwise requires, terms used in this Guaranty, including
its preamble and recitals, have the meanings provided in the Credit Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. GUARANTY. The Guarantor hereby absolutely,
unconditionally and irrevocably
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or
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otherwise, of all Obligations of the Borrowers and each other Obligor now
or hereafter existing, whether for principal, interest, fees, expenses or
otherwise (including all such amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the United States
Bankruptcy Code, 11 U.S.C. Section 362(a), and the operation of Sections
502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. Section
502(b) and Section 506(b)), and
(b) indemnifies and holds harmless each Secured Party and each holder
of a Note for any and all costs and expenses (including reasonable
attorney's fees and expenses and disbursements) incurred by such Secured
Party or such holder, as the case may be, in enforcing any rights under
this Guaranty except for any such costs, expenses and disbursements arising
by reason of the relevant indemnified party's gross negligence or willful
misconduct.
This Guaranty constitutes a guaranty of payment when due and not of collection,
and the Guarantor specifically agrees that it shall not be necessary or required
that any Secured Party or any holder of any Note exercise any right, assert any
claim or demand or enforce any remedy whatsoever against any Borrower or any
other Obligor (or any other Person) before or as a condition to the obligations
of the Guarantor hereunder.
SECTION 2.2. ACCELERATION OF GUARANTY. The Guarantor agrees that, in
the event of the dissolution or insolvency of any Borrower, any other Obligor or
the Guarantor (but excluding any liquidation, dissolution, merger or other
action permitted pursuant to Section 9.2.10 of the Credit Agreement), or the
inability or failure of any Borrower, any other Obligor or the Guarantor to pay
debts as they become due, or an assignment by any Borrower, any other Obligor or
the Guarantor for the benefit of creditors, or the commencement of any case or
proceeding in respect of any Borrower, any other Obligor or the Guarantor under
any bankruptcy, insolvency or similar laws, and if such event shall occur at a
time when any of the Obligations of the Borrowers and each other Obligor may not
then be due and
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Exhibit 4.13
payable, the Guarantor agrees that it will pay to the Lenders forthwith the full
amount which would be payable hereunder by the Guarantor if all such Obligations
were then due and payable.
SECTION 2.3. GUARANTY ABSOLUTE, ETC. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of the
Borrowers and each other Obligor have been paid in full in cash or cash
collateralization, all obligations of the Guarantor hereunder shall have been
paid in full in cash or cash collateralization, all Letters of Credit have been
terminated or expired, all Rate Protection Agreements have been terminated and
all Commitments shall have terminated. The Guarantor guarantees that the
Obligations of the Borrowers and each other Obligor will be paid strictly in
accordance with the terms of the Credit Agreement and each other Loan Document
under which they arise, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Secured Party or any holder of any Note with respect thereto. The
liability of the Guarantor under this Guaranty shall be absolute, unconditional
and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the Credit
Agreement, any Note, any other Loan Document or any other instrument or
document relating to any thereof;
(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against any Borrower, any other Obligor or any other Person
(including any other guarantor (including the Guarantor)) under the
provisions of the Credit Agreement, any Note, any other Loan Document,
any other instrument or document relating to any thereof or otherwise,
or
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Exhibit 4.13
(ii) to exercise any right or remedy against any other guarantor
(including the Guarantor) of, or collateral securing, any Obligations
of the Borrowers or any other Obligor;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrowers or any other
Obligor, or any other extension, compromise or renewal of any Obligation of
the Borrowers or any other Obligor;
(d) any reduction, limitation, impairment or termination of any
Obligations of the Borrowers or any other Obligor for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and the Guarantor hereby waives any right to or
claim of) any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, any Obligations of the Borrowers, any other Obligor
or otherwise;
(e) any amendment to, rescission, waiver, or other modification of, or
any consent to departure from, any of the terms of the Credit Agreement,
any Note, any other Loan Document or any other instrument or document
relating to any thereof;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by any Secured Party or
any holder of any Note securing any of the Obligations of the Borrowers or
any other Obligor; or
(g) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, any Borrower, any other
Obligor, any surety or any guarantor.
SECTION 2.4. REINSTATEMENT, ETC. The Guarantor agrees that this
Guaranty shall continue to be effective or
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Exhibit 4.13
be reinstated, as the case may be, if at any time any payment (in whole or in
part) of any of the Obligations is rescinded or must otherwise be restored by
any Secured Party or any holder of any Note, upon the insolvency, bankruptcy or
reorganization of any Borrower, any other Obligor or otherwise, all as though
such payment had not been made.
SECTION 2.5. WAIVER, ETC. The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of the Borrowers or any other Obligor and this Guaranty and any
requirement that the Agents, any other Secured Party or any holder of any Note
protect, secure, perfect or insure any security interest or Lien, or any
property subject thereto, or exhaust any right or take any action against any
Borrower, any other Obligor or any other Person (including any other guarantor)
or entity or any collateral securing the Obligations of the Borrowers or any
other Obligor, as the case may be.
SECTION 2.6. POSTPONEMENT OF SUBROGATION, ETC. The Guarantor agrees
that it will not exercise any rights which it may acquire by way of rights of
subrogation under this Guaranty, by any payment made hereunder or otherwise,
until the prior payment in full in cash of or cash collateralization in full of
all Obligations of the Borrowers and each other Obligor, the termination,
expiration or cash collateralization of all Letters of Credit, the termination
of all Rate Protection Agreements and the termination of all Commitments. Any
amount paid to the Guarantor on account of any such subrogation rights prior to
the payment in full in cash of all Obligations of the Borrowers and each other
Obligor shall be held in trust for the benefit of the Secured Parties and each
holder of a Note and shall immediately be paid to the Agents for the benefit of
the Secured Parties and each holder of a Note and credited and applied against
the Obligations of the Borrowers and each other Obligor, whether matured or
unmatured, in accordance with the terms of the Credit Agreement; PROVIDED,
HOWEVER, that if
(a) the Guarantor has made payment to the Secured Parties and each
holder of a Note of all or any part of
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Exhibit 4.13
the Obligations of the Borrowers or any other Obligor, and
(b) all Obligations of the Borrowers and each other Obligor have been
paid in full in cash or cash collateralization in full, all Letters of
Credit have been terminated or expired, all Rate Protection Agreements have
been terminated and all Commitments have been permanently terminated,
each Secured Party and each holder of a Note agrees that, at the Guarantor's
request, the Agents, on behalf of the Secured Parties and the holders of the
Notes, will execute and deliver to the Guarantor appropriate documents (without
recourse and without representation or warranty) necessary to evidence the
transfer by subrogation to the Guarantor of an interest in the Obligations of
the Borrowers and each other Obligor resulting from such payment by the
Guarantor. In furtherance of the foregoing, for so long as any Obligations or
Commitments remain outstanding, the Guarantor shall refrain from taking any
action or commencing any proceeding against any Borrower or any other Obligor
(or its successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amounts in the respect of payments made
under this Guaranty to any Secured Party or any holder of a Note.
SECTION 2.7. SUCCESSORS, TRANSFEREES AND ASSIGNS; TRANSFERS OF NOTES,
ETC. This Guaranty shall:
(a) be binding upon the Guarantor, and its successors, transferees and
assigns; and
(b) inure to the benefit of and be enforceable by the Agents and each
other Secured Party.
Without limiting the generality of the foregoing, any Lender may assign or
otherwise transfer (in whole or in part) any Commitment, Note or Credit
Extension held by it to any other Person or entity, and such other Person or
entity shall thereupon become vested with all rights and benefits in respect
thereof granted to such Lender under any Loan Document (including this Guaranty)
or otherwise, subject,
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Exhibit 4.13
however, to the provisions of Section 12.11 and Article XI of the Credit
Agreement.
SECTION 2.8. JUDGMENT. The Guarantor hereby agrees that, with
respect to the Canadian Facility:
(a) if, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due in Canadian Dollars hereunder into another
currency, then the rate of exchange used shall be that at which the Agents,
in accordance with normal banking procedures could purchase Canadian
Dollars with such other currency on the Business Day preceding that on
which final judgment is given; and
(b) the obligation of the Guarantor in respect of any sum due from it
to any Secured Party or any holder of a Canadian Note hereunder or any
other Loan Document shall, notwithstanding any judgment in a currency other
than Canadian Dollars, be discharged only to the extent that on the
Business Day following receipt by the Secured Party or holder, as the case
may be, of any sum adjudged to be so due in a currency other than Canadian
Dollars such Secured Party or holder, as the case may be, may, in
accordance with normal banking procedures, purchase Canadian Dollars with
such other currency; in the event that the Canadian Dollars so purchased
are less than the amount originally due to any Secured Party or holder of a
Canadian Note in Canadian Dollars, the Guarantor, as a separate obligation
and notwithstanding any such judgment, hereby indemnifies and holds
harmless such Secured Party and holder against such loss, and if the
Canadian Dollars so purchased exceed the sum originally due to such Secured
Party or holder in Canadian Dollars, such Secured Party or holder, as the
case may be, shall remit to the Guarantor such excess.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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Exhibit 4.13
In order to induce the Lenders, each Issuer and the Agents to enter
into the Credit Agreement and make the Credit Extensions thereunder, and the
applicable Lender (or its Affiliate) to enter into Rate Protection Agreements,
the Guarantor represents and warrants to each of the Secured Parties as set
forth in this ARTICLE III.
SECTION 3.1. ORGANIZATION, ETC. The Guarantor is a corporation
validly formed and existing and in good standing under the laws of the state or
jurisdiction of its formation, is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction where the nature of its
business requires such qualification (except where the failure to so qualify
would not, individually or in the aggregate, have a Material Adverse Effect),
and has full power and authority and holds all requisite governmental licenses,
permits and other approvals to enter into and perform its obligations under this
Guaranty and each other Loan Document to which it is a party and (except to the
extent the failure to have any such license, permit or other approval would not
have a Material Adverse Effect), to own and hold under lease its property and to
conduct its business substantially as currently conducted by it.
SECTION 3.2. GOVERNMENT APPROVAL, REGULATION, ETC. The Guarantor is
not an "investment company" within the meaning of the Investment Company Act of
1940, as amended, or a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
SECTION 3.3. LITIGATION, LABOR CONTROVERSIES, ETC. There is no
pending or, to the knowledge of the Guarantor, threatened litigation, action,
proceeding, or labor controversy (i) affecting the Guarantor, or any of its
properties, businesses, assets or revenues, which would reasonably be expected
to have a Material Adverse Effect or (ii) which would adversely affect the
legality, validity or enforceability of this Guaranty, the Credit Agreement, the
Notes, any other Loan Document or the Purchase Agreement.
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Exhibit 4.13
SECTION 3.4. SUBSIDIARIES. On the Closing Date, the Guarantor has no
direct Subsidiaries, except the U.S. Borrower.
SECTION 3.5. SHELL STATUS. On and at all times prior to the
Effective Date, the Guarantor has not engaged in any business or activity, or
incurred any Indebtedness or other obligations of any type, except in connection
with the ownership of the outstanding Capital Stock of the U.S. Borrower.
SECTION 3.6. TAXES. The Guarantor has filed all material tax returns
and reports required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be due and owing, except any such taxes or
charges which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books.
ARTICLE IV
COVENANTS, ETC.
The Guarantor covenants and agrees that, so long as any portion of the
Obligations shall remain unpaid, any Letters of Credit shall be outstanding, any
Rate Protection Agreement shall remain in full force and effect or any Lender
shall have any outstanding Commitment, the Guarantor will, unless the Required
Lenders shall otherwise consent in writing, perform the obligations set forth in
this ARTICLE IV.
SECTION 4.1. MAINTENANCE OF CORPORATE EXISTENCE. The Guarantor will
cause to be taken all actions necessary to maintain and preserve at all times
its corporate existence.
SECTION 4.2. COMPLIANCE WITH LAWS, ETC. The Guarantor will, and will
cause each of its Subsidiaries to, comply in all material respects with all
applicable laws,
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Exhibit 4.13
rules, regulations and orders, such compliance to include (without limitation):
(a) the maintenance and preservation of its corporate existence and
qualification as a foreign corporation, except where the failure to so
qualify could not reasonably be expected to have a Material Adverse Effect;
and
(b) the payment, before the same become delinquent, of all material
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on its books.
SECTION 4.3. NET EQUITY PROCEEDS. The Guarantor will, concurrently
with the receipt of any Net Equity Proceeds, cause to be made a mandatory
prepayment of the U.S. Term Loans to the extent required in accordance with
clause (f) of Section 5.1.1 of the Credit Agreement.
SECTION 4.4. BUSINESS ACTIVITIES. The Guarantor will not engage in
any business activity other than in connection with the Guarantor's continuing
ownership of the issued and outstanding shares of Capital Stock of the U.S.
Borrower.
SECTION 4.5. INDEBTEDNESS. The Guarantor will not create, incur,
assume or suffer to exist or otherwise become or be liable in respect of any
Indebtedness other than in respect of the Obligations.
SECTION 4.6. LIENS, ETC. The Guarantor will not create, incur,
assume, or enter into any agreement which by its terms creates, incurs or
assumes any Lien upon any of its assets (including any shares of Capital Stock
of the U.S. Borrower), whether now owned or hereafter acquired by the Guarantor
except as permitted pursuant to Section 9.2.3 (only clause (e) of Section 9.2.3
with respect to the Capital Stock of the U.S. Borrower) of the Credit Agreement;
nor will the Guarantor sell, transfer, contribute or
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Exhibit 4.13
otherwise dispose of or convey (or grant any options, warrants or other rights
with respect thereto) any shares of Capital Stock of the U.S. Borrower (except
pursuant to a transaction in which all Obligations will be simultaneously
discharged in full, all Letters of Credit have been terminated or cash
collateralized, all Rate Protection Agreements have been terminated and all
Commitments will be simultaneously terminated in full).
SECTION 4.7. INVESTMENTS. The Guarantor will not make, incur, assume
or suffer to exist any Investment in any other Person, except Investments in the
U.S Borrower.
SECTION 4.8. FIXED ASSETS. The Guarantor will not make or commit to
make any Capital Expenditure or enter into any arrangement which would give rise
to any Capitalized Lease Liability.
SECTION 4.9. RENTAL OBLIGATIONS. The Guarantor will not enter into
any arrangement which involves the leasing by the Guarantor from any lessor of
any real or personal property (or any interest therein) other than the lease of
office space incidental to its ordinary course of business.
SECTION 4.10. CONSOLIDATION, MERGER. The Guarantor will not wind-up,
liquidate or dissolve, consolidate or amalgamate with, or merge into or with any
other corporation or purchase or otherwise acquire all or any part of the assets
of any Person (or division thereof).
SECTION 4.11. ASSET DISPOSITIONS, ETC. The Guarantor will not sell,
transfer, lease or otherwise dispose of, or grant to any Person options,
warrants or other rights with respect to any of its assets, unless otherwise
permitted by the Credit Agreement.
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ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. LOAN DOCUMENT. This Guaranty is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof, including Article XII thereof.
SECTION 5.2. BINDING ON SUCCESSORS, TRANSFEREES AND ASSIGNS;
ASSIGNMENT. In addition to, and not in limitation of, SECTION 2.7, this
Guaranty shall be binding upon the Guarantor and its successors, transferees and
assigns and shall inure to the benefit of and be enforceable by each Secured
Party and each holder of a Note and their respective successors, transferees and
assigns (to the full extent provided pursuant to SECTION 2.7); PROVIDED,
HOWEVER, that the Guarantor may not assign any of its obligations hereunder
without the prior written consent of all Lenders.
SECTION 5.3. AMENDMENTS, ETC. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by the Guarantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Guarantor and the Agents (on behalf of the Lenders or the
Required Lenders, as the case may be), and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 5.4. NOTICES. All notices and other communications provided
for hereunder shall be in writing or by facsimile and, mailed or telecopied or
delivered, with respect to the Guarantor, in care of the U.S. Borrower at the
address of the U.S. Borrower specified in the Credit Agreement, and with respect
to the Agents, to the addresses of the Agents specified in the Credit Agreement,
or, with respect to the Guarantor or the Agents, at such other address or
facsimile number as shall be designated by such party in a written notice to
each other party complying as to delivery with the terms of this Section. All
such notices and other communications, when mailed and properly addressed with
postage prepaid or if properly addressed and
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Exhibit 4.13
sent by pre-paid courier service, shall be deemed given when received; any such
notice or communication, if transmitted by telecopier, shall be deemed given
when transmitted and electronically confirmed.
SECTION 5.5. NO WAIVER; REMEDIES. In addition to, and not in
limitation of, SECTION 2.3 and SECTION 2.5, no failure on the part of any
Secured Party or any holder of a Note 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 5.6. CAPTIONS. Section captions used in this Guaranty are
for convenience of reference only, and shall not affect the construction of this
Guaranty.
SECTION 5.7. SETOFF. In addition to, and not in limitation of, any
rights of any Secured Party or any holder of a Note under applicable law, each
Secured Party and each such holder shall, upon the occurrence of any Default
described in any of clauses (a) through (d) of Section 10.1.9 of the Credit
Agreement or with the consent of the Required Lenders, any Event of Default,
have the right to appropriate and apply to the payment of the obligations of the
Guarantor owing to it hereunder, whether or not then due, and the Guarantor
hereby grants to each Secured Party and each such holder a continuing security
interest in, any and all balances, credits, deposits, accounts or moneys of the
Guarantor then or thereafter maintained with such Secured Party, or such holder
or any agent or bailee for such Secured Party or such holder; PROVIDED, HOWEVER,
that any such appropriation and application shall be subject to the provisions
of Section 6.8 of the Credit Agreement.
SECTION 5.8. SEVERABILITY. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity,
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Exhibit 4.13
without invalidating the remainder of such provision or the remaining provisions
of this Guaranty.
SECTION 5.9. COUNTERPARTS. This Guaranty may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 5.10. GOVERNING LAW, ENTIRE AGREEMENT, ETC. THIS GUARANTY
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). THIS GUARANTY AND THE
OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR
AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 5.11. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES
OR THE GUARANTOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF
THE STATE OF NEW YORK, NEW YORK COUNTY OR IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY PROPERTY MAY BE BROUGHT, AT THE AGENTS' OPTION, IN THE
COURTS OF ANY JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND. THE GUARANTOR
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK, NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS
SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH SUCH LITIGATION. THE GUARANTOR HEREBY IRREVOCABLY
APPOINTS CT CORPORATION SYSTEM (THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE
HEREOF AT ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, AS ITS AGENT
TO RECEIVE, ON THE GUARANTOR'S BEHALF AND ON BEHALF OF THE GUARANTOR'S PROPERTY,
SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND
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Exhibit 4.13
ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. SUCH
SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH PROCESS TO THE
GUARANTOR IN CARE OF THE PROCESS AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS, AND
THE GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO
ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE, THE
GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW
YORK. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE GUARANTOR HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE
GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
SECTION 5.12. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE SECURED PARTIES OR THE GUARANTOR. THE GUARANTOR ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO THE
CREDIT AGREEMENT.
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Exhibit 4.13
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
PLI HOLDINGS INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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