GUARANTEE AGREEMENT dated as of September 30, 1997
among each of the subsidiaries listed on Schedule I hereto
(each such subsidiary individually, a "Subsidiary Guarantor"
and collectively, the "Subsidiary Guarantors") of HUNTSMAN
PACKAGING CORPORATION, a Utah corporation (the "Borrower"),
and THE CHASE MANHATTAN BANK, a New York banking corporation
("Chase"), as administrative agent (the "Administrative
Agent") for the Lenders under the Credit Agreement referred
to below.
Reference is made to the Credit Agreement dated as of September 30,
1997 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, the lenders from time to time party
thereto, (the "Lenders") and the Administrative Agent. 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 for the account of the
Borrower, pursuant to, and upon the terms and subject to the conditions
specified in, the Credit Agreement. The Borrower has requested that the
Subsidiary Guarantors guarantee the Obligations (as defined below) by entering
into this Agreement. Each of the Subsidiary Guarantors is a Subsidiary of the
Borrower and acknowledges that it will derive substantial benefit from the
making of the Loans by the Lenders, and the issuance of the Letters of Credit
by the Issuing Bank. The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit are conditioned on, among other
things, the execution and delivery by the Subsidiary Guarantors of a Guarantee
Agreement in the form hereof. As consideration therefore and in order to
induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit, the Subsidiary Guarantors are willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Subsidiary Guarantor unconditionally
guarantees, jointly with the other Subsidiary 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, when and as
due, including payments in respect of reimbursement of disbursements, interest
thereon and obligations to provide cash collateral 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 and the other
Loan Documents (c) the due and punctual payment and performance of all
obligations of the Borrower, monetary or otherwise, under each Hedging
Agreement entered into with any counterparty that was a Lender (or an
Affiliate thereof) at the time such Hedging Agreement was entered into and (d)
the due and punctual payment of all monetary obligations of the Borrower (but
not in excess of $5,000,000 in the aggregate) under any domestic overdraft
facilities entered into by the Borrower including, but not limited to, the
Line of Credit Agreement and Automatic Borrowing Service Agreement entered
into with Mellon Bank, N.A. (all the monetary and other obligations referred
to in the preceding clauses (a) through (d) being collectively called the
"Obligations"). Each Subsidiary Guarantor further agrees that the Obligations
may be extended or renewed, in whole or in part, without notice to or further
assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Obligation.
Anything contained in this Agreement to the contrary notwithstanding,
the obligations of each Subsidiary Guarantor hereunder shall be limited to a
maximum aggregate amount equal to the greatest amount that would not render
such Subsidiary Guarantor's obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under
2
Section 548 of Title 11 of the United States Code or any provisions of
applicable state law (collectively, the "Fraudulent Transfer Laws"), in each
case after giving effect to all other liabilities of such Subsidiary
Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Subsidiary Guarantor (a) in respect of intercompany indebtedness to the
Borrower or Affiliates of the Borrower to the extent that such indebtedness
would be discharged in an amount equal to the amount paid by such Subsidiary
Guarantor hereunder and (b) under any Guarantee of senior unsecured
indebtedness or Indebtedness subordinated in right of payment to the
Obligations which Guarantee contains a limitation as to maximum amount similar
to that set forth in this paragraph, pursuant to which the liability of such
Subsidiary Guarantor hereunder is included in the liabilities taken into
account in determining such maximum amount) and after giving effect as assets
to the value (as determined under the applicable provisions of the Fraudulent
Transfer Laws) of any rights to subrogation, contribution, reimbursement,
indemnity or similar rights of such Subsidiary Guarantor pursuant to (i)
applicable law or (ii) any agreement providing for an equitable allocation
among such Subsidiary Guarantor and other Affiliates of the Borrower of
obligations arising under Guarantees by such parties (including the Indemnity,
Subrogation and Contribution Agreement).
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Subsidiary 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 Subsidiary 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 Subsidiary Guarantor under the provisions of the Credit
Agreement, any other Loan Document or otherwise, (b) any rescission, waiver,
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 Subsidiary Guarantor
under this Agreement or (c) the failure to perfect any security interest in,
or the release of, any of the
3
security held by or on behalf of the Collateral Agent or any other Secured
Party.
SECTION 3. Security. Each of the Subsidiary Guarantors authorizes the
Collateral Agent and each of the other Secured Parties, to (a) take and hold
security pursuant to the Security Agreement 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 Subsidiary Guarantors of other
obligors.
SECTION 4. Guarantee of Payment. Each Subsidiary 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.
SECTION 5. No Discharge or Diminishment of Guarantee. The obligations
of each Subsidiary 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 Subsidiary Guarantor
hereunder shall not be discharged or impaired or otherwise affected by the
failure of the Administrative 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
Subsidiary Guarantor or that would otherwise operate as a discharge of each
Subsidiary Guaran-
4
tor 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 Subsidiary 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 Subsidiary
Guarantor hereunder except to the extent the Obligations have been fully,
finally and indefeasibly paid in cash. Pursuant to applicable, law, each of
the Subsidiary 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 Subsidiary Guarantor against the Borrower or any other
Subsidiary 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 Administrative
Agent or any other Secured Party has at law or in equity against any
Subsidiary 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 Subsidiary Guarantor hereby promises to and will forthwith pay, or cause
to be paid, to the Administrative Agent or such other Secured Party as
designated thereby in same day funds the amount of such unpaid Obligations.
Upon payment by any Subsidiary Guarantor of any sums to the Administrative
Agent or any Secured Party as provided above, all rights of such Subsidiary
Guarantor against the Borrower arising as a result thereof by
5
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 same day funds of all the
Obligations. In addition, any indebtedness of the Borrower now or hereafter
held by any Subsidiary Guarantor is hereby subordinated in right of payment to
the prior payment in full of the Obligations. If any amount shall erroneously
be paid to any Subsidiary Guarantor on account of (i) such subrogation,
contribution, reimbursement, indemnity or similar right or (ii) any such
indebtedness of the Borrower, such amount shall be held in trust for the
benefit of the Secured Parties and shall forthwith be paid to the
Administrative 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 Subsidiary 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 Subsidiary Guarantor assumes and incurs hereunder, and
agrees that none of the Administrative Agent or the other Secured Parties will
have any duty to advise any of the Subsidiary 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
Exposure has been reduced to zero and the Issuing Bank has no further
obligation to issue Letters of Credit 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 Subsidiary Guarantor upon the
bankruptcy or
6
reorganization of the Borrower, any Subsidiary 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 Subsidiary
Guarantors that are contained in this Agreement shall bind and inure to the
benefit of each party hereto and their respective successors and assigns. This
Agreement shall become effective as to any Subsidiary Guarantor when a
counterpart hereof executed on behalf of such Subsidiary Guarantor shall have
been delivered to the Administrative Agent, and a counterpart hereof shall
have been executed on behalf of the Administrative Agent, and thereafter shall
be binding upon such Subsidiary Guarantor and the Administrative Agent and
their respective successors and assigns, and shall inure to the benefit of
such Subsidiary Guarantor, the Administrative Agent and the other Secured
Parties, and their respective successors and assigns, except that no
Subsidiary Guarantor shall have the right to assign its rights or obligations
hereunder or any interest herein (and any such attempted assignment shall be
void). If all of the capital stock of a Subsidiary Guarantor is sold,
transferred or otherwise disposed of pursuant to a transaction permitted by
Section 6.06 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
Subsidiary Guarantor and may be amended, modified, supplemented, waived or
released with respect to any Subsidiary Guarantor without the approval of any
other Subsidiary Guarantor and without affecting the obligations of any other
Subsidiary Guarantor hereunder.
SECTION 12. Waivers; Amendment. (a) No failure or delay of the
Administrative 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 of power. The rights and remedies of the
Administrative Agent hereunder and of the other Secured Parties under the
other Loan Documents are cumulative and are not
7
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
Subsidiary 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 Subsidiary Guarantor in any case shall
entitle such Subsidiary 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 Subsidiary Guarantors with respect to which such waiver, amendment
or modification relates and the Administrative 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 Subsidiary Guarantors
herein and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the Administrative 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 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 under this
Agreement or any other loan Document is outstanding and unpaid or the LC
Exposure does not equal zero and as long as the Commitments have not been
terminated.
8
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the validity 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 partes
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 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
Subsidiary Guarantor hereby irrevocable 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
9
any right that the Administrative 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 Subsidiary Guarantor or its properties in
the courts of any jurisdiction.
(b) Each Subsidiary 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 of 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 OR
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK 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 Loan Party that was not in
existence on the date of the Credit Agreement is required to enter into this
Agreement as a Subsidiary Guarantor upon becoming a Subsidiary Loan party.
Upon execution and delivery after the date hereof by the Administrative Agent
and such a Subsidiary of an instrument in the form of Annex 1, such
10
Subsidiary shall become a Subsidiary Guarantor hereunder with the same force
and effect as if originally named as a Subsidiary Guarantor herein. The
execution and delivery of any instrument adding an additional Subsidiary
Guarantor as a party to this Agreement shall not require the consent of any
other Subsidiary Guarantor hereunder. The rights and obligations of each
Subsidiary 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
Subsidiary Guarantor against any or all the obligations of such Subsidiary
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.
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
----------------------------
Name:
Title: Authorized Officer
THE CHASE MANHATTAN BANK, as
Administrative Agent,
by
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
11
(Guarantee Agreement)
SCHEDULE I
Subsidiary Guarantors
1. Huntsman Deerfield Films Corporation
2. Huntsman United Films Corporation
3. Huntsman Preparatory Inc.
4. Huntsman Container Corporation International
5. Huntsman Packaging Georgia, Inc.
6. Huntsman Film Products of Mexico, Inc.
7. Huntsman Bulk Packaging Corporation
Annex 1 to the
Guarantee Agreement
SUPPLEMENT NO. dated as of ,
to the Guarantee Agreement dated as of
September 30, among each of the subsidiar-
ies listed on Schedule 1, thereto (each
such subsidiary individually, a "Subsid-
iary Guarantor" and collectively, the
"Subsidiary Guarantors") of HUNTSMAN PACK-
AGING CORPORATION, a Utah corporation
(the "Borrower"), and THE CHASE MANHATTAN
BANK, a New York banking corporation
("Chase"), as administrative agent (the
"Administrative Agent") for the Lenders
under the Credit Agreement referred to
below.
A. Reference is made to the Credit Agreement dated as of September
30, 1997 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among the Borrower, the lenders from time to time
party thereto (the "Lenders") and the Administrative Agent. Capitalized terms
used herein and not defined herein shall have the meanings assigned to such
terms in the Credit Agreement.
B. The Subsidiary 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. Pursuant to Section 5.12 of the Credit Agreement,
each Subsidiary Loan Party that was not in existence or not a Subsidiary on
the date of the Credit Agreement is required to enter into the Guarantee
Agreement as a Subsidiary Guarantor upon becoming a Subsidiary. Section 20 of
the Guarantee Agreement provides that 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 as consideration for Loans previously made and Letters
of Credit previously issued.
Accordingly, the Administrative 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 the same force and effect as if
originally named therein as a Subsidiary Guarantor 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 in 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 Administrative 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
constitutae a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Subsidiary Guarantor and
the Administrative 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 validi-
2
ty, 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 then address set forth under its signature below, with copy to
the Borrower.
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Supplement, including the fees, disbursements and other charges of counsel for
the Administrative Agent.
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the
Administrative 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
Administrative Agent,
by:
---------------------------------
Name:
Title:
3