10(m)(2)
SHOWBIZ PIZZA TIME, INC.
-----------------------
SUPPLEMENTAL AGREEMENT
Dated as of September 29, 1997
relating to the
Note Purchase Agreements dated as of June 15, 1995
-------------------
10.02% Series A Senior Notes due 2001
Floating Rate Series B Senior Notes due 2000
SHOWBIZ PIZZA TIME, INC.
SUPPLEMENTAL AGREEMENT
as of September 29,
1997
Re: 10.02% Series A Senior Notes due 2001
Floating Rate Series B Senior Notes due 2000
TO THE SEVERAL NOTEHOLDERS
WHOSE NAMES APPEAR IN THE
ACCEPTANCE FORM AT THE END HEREOF
Ladies and Gentlemen:
SHOWBIZ PIZZA TIME, INC., a Kansas corporation (the "Company"),
hereby agrees with you as follows:
SECTION 1. Note Purchase Agreements and the Notes; Requested
Consent. Pursuant to the several Note Purchase Agreements dated as
of June 15, 1995 (the "Note Purchase Agreements") entered into by
the Company with the institutional investors named in Schedule A
thereto, the Company issued and sold $18,000,000 aggregate
principal amount of its 10.02% Series A Senior Notes due 2001 (the
"Series A Notes") and $10,000,000 aggregate principal amount of its
Floating Rate Series B Senior Notes due 2000 (the "Series B Notes"
and, together with the Series A Notes, the "Notes"), all of which
remain outstanding on the date hereof. Unless the context
otherwise requires, capitalized terms used herein without
definition have the respective meanings ascribed thereto in the
Note Purchase Agreements.
The Company proposes to transfer certain tangible assets at a
value not to exceed $20,000,000 and certain intellectual property
owned by the Company to direct and indirect wholly-owned
subsidiaries of the Company (such transfers referred to herein
collectively as the "Asset Sale Transaction").
In connection therewith, the Company hereby requests consents
from the holders of the Notes to enter into and effectuate the
Asset Sale Transaction, such transactions being prohibited by the
Note Purchase Agreements, particularly the limitations on asset
sales pursuant to Section 10.3 of the Note Purchase Agreements. In
consideration therefor, prior to or concurrently with the Asset
Sale Transaction, the Company will cause each of ShowBiz Nevada,
Inc., ShowBiz Merchandising, Inc. and SPT Properties Company, Inc.,
each a Nevada corporation (collectively, the "Subsidiary
Guarantors"), to execute and deliver a Subsidiary Guarantee,
substantially in the form set forth in Exhibit 1 to this
Supplemental Agreement, unconditionally guaranteeing the Company's
obligations under the Note Purchase Agreements and the Notes.
SECTION 2. Consent. The holders of the Notes hereby consent
to the Asset Sale Transaction.
SECTION 3. Subsidiary Indebtedness. Except for the
Subsidiary Guarantees, the Company will not permit any of the
Subsidiary Guarantors to create, assume, incur, guarantee or
otherwise become liable in respect of any Indebtedness (as defined
in the Note Purchase Agreements).
SECTION 4. Representations and Warranties of the Company.
The Company represents and warrants to you as follows:
Section 4.1 Organization, Authorization, Etc. The Company is
a corporation duly organized, validly existing and in good standing
under the laws of the State of Kansas, and has all requisite power
and authority to execute, deliver and perform its obligations under
this Supplemental Agreement.
The execution, delivery and performance of this Supplemental
Agreement have been duly authorized by all necessary action on the
part of the Company. This Supplemental Agreement is a legal, valid
and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency or other similar laws relating
to or affecting the enforcement of creditors' rights generally and
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 4.2 Compliance with Laws, Other Instruments, Etc.
The execution, delivery and performance by the Company of this
Supplemental Agreement do not and will not (A) contravene, result
in any breach of, or constitute a default under, or result in the
creation of any Lien in respect of any property of the Company or
any Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws,
or any other agreement or instrument to which the Company or any
Subsidiary is bound or by which the Company or any Subsidiary or
any of their respective properties may be bound or affected, (B)
conflict with or result in a breach of any of the terms, conditions
or provisions of any order, judgment, decree, or ruling of any
court, arbitrator or Governmental Authority applicable to the
Company or any Subsidiary or (C) violate any provision of any
statute or other rule or regulation of any Governmental Authority
applicable to the Company or any Subsidiary.
Section 4.3 Governmental Authorizations, Etc. No consent,
approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required for the
validity of the execution, delivery or performance by the
performance by the Company of this Supplemental Agreement.
Section 4.4 No Default, etc. No Event of Default or Default
has occurred and is continuing, and neither the Company nor any
Subsidiary is in default (whether or not waived) in the performance
or observance of any of the terms, covenants or conditions
contained in any instrument evidencing any Indebtedness and there
is no pending request by the Company (except pursuant to this
Supplemental Agreement or the Loan Agreement dated as of June 27,
1995 between the Company and Bank One, Texas, N.A. (the "Bank One
Agreement") with respect to the Asset Sale Transaction) or any
Subsidiary for any amendment or waiver in respect of any
contemplated or possible default with respect to such Indebtedness
and no event has occurred and is continuing which, with notice or
lapse of time or both, would become such a default.
Section 4.5 No Undisclosed Fees. The Company has not,
directly or indirectly, paid or caused to be paid any consideration
(as supplemental or additional interest, a fee or otherwise) to any
holder of Notes in order to induce such holder to enter into this
Supplemental Agreement or take any other action in connection with
the transactions contemplated hereby, nor has the Company agreed to
make any such payment.
SECTION 5. Representation of the Noteholder. You represent
to the Company that you are the beneficial owner of Notes in the
aggregate unpaid principal amount set forth below your name in the
acceptance form of this Supplemental Agreement.
SECTION 6. Effectiveness of this Supplemental Agreement.
This Supplemental Agreement will become effective on the date (the
"Effective Date") on which all of the following conditions
precedent shall have been satisfied:
Section 6.1 Proceedings. All proceedings taken by the
Company in connection with the transactions contemplated hereby and
all documents and papers incident thereto shall be satisfactory to
you, and you and your special counsel shall have received all such
counterpart originals or certified or other copies of such
documents and papers, all in form and substance satisfactory to
you, as you or they may reasonably request in connection therewith.
Section 6.2 Execution of this Supplemental Agreement.
Counterparts of this Supplemental Agreement shall have been
executed and delivered by the Company and the Required Holders.
Section 6.3 Representations and Warranties. The
representations and warranties of the Company contained in Section
4 of this Supplemental Agreement shall be true on and as of the
Effective Date as though such representations and warranties had
been made on and as of the Effective Date, and you shall have
received a certificate of a senior financial officer of the
Company, dated the Effective Date, to such effect.
Section 6.4 Subsidiary Guarantees. A Subsidiary Guarantee,
dated on or before the Effective Date, shall have been executed and
delivered to you by each of the Subsidiary Guarantors,
substantially in the form hereinabove recited.
Section 6.5 Opinion of Counsel. You shall have received an
opinion, dated the Effective Date, addressed to you and otherwise
satisfactory in scope and substance to you, from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Esq., Counsel to the Company, substantially in the form set forth
in Annex A attached hereto, and covering such other matters
incident to the transactions contemplated hereby as you may
reasonably request.
Section 6.6 Payment of Fees. The Company shall have paid the
fees and disbursements of your special counsel as contemplated by
Section 7 of this Supplemental Agreement.
SECTION 7. Expenses. Without limiting the generality of
Section 15.1 of the Note Purchase Agreements, the Company agrees,
whether or not the transactions contemplated hereby are
consummated, to pay the reasonable fees and disbursements and other
charges of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, your special counsel, for
their services rendered in connection with such transactions and
with respect to this Supplemental Agreement and any other document
delivered pursuant to this Supplemental Agreement and reimburse you
for your out-of-pocket expenses in connection with the foregoing.
In furtherance of the foregoing, on the Effective Date the
Company will pay or cause to be paid the reasonable fees and
disbursements and other charges of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ which
are reflected in the statement of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
delivered to the Company prior to the Effective Date. The Company
will also pay promptly upon receipt of supplemental statements
therefor, reasonable additional fees, if any, and disbursements of
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ in connection with the transactions
contemplated hereby (including disbursements unposted as of the
Effective Date).
SECTION 8. Ratification. The Note Purchase Agreements are in
all respects ratified and confirmed and the provisions thereof
shall remain in full force and effect.
SECTION 9. Counterparts. This Supplemental Agreement may be
executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the
same instrument.
SECTION 10. Governing Law. This Supplemental Agreement shall
be governed by and construed in accordance with the laws of the
State of New York.
If you are in agreement with the foregoing, please sign the form of
acceptance in the space below provided, whereupon this Supplemental
Agreement shall become a binding agreement between you and the
Company, subject to becoming effective as hereinabove provided.
SHOWBIZ PIZZA TIME, INC.
By:-----------------------
Name:
Title:
ACCEPTED AND AGREED:
NOTEHOLDERS:
ALLSTATE LIFE INSURANCE COMPANY
By:--------------------------
Name:
Title:
By:--------------------------
Name:
Title:
Principal Amount of Series A Notes Held: $10,000,000
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:----------------------------------------
Name:
Title:
Principal Amount of Series A Notes Held: $3,000,000
Principal Amount of Series B Notes Held: $6,000,000
MASSMUTUAL CORPORATE VALUE PARTNERS LIMITED
By:---------------------------------------
Name:
Title:
Principal Amount of Series B Notes Held: $4,000,000
CM LIFE INSURANCE COMPANY
By-------------------------
Name:
Title:
Principal Amount of Series A Notes Held: $2,000,000
MODERN WOODMEN OF AMERICA
By--------------------------
Name:
Title:
Principal Amount of Series A Notes Held: $3,000,000
ANNEX A
(to Supplemental Agreement)
OPINION OF COUNSEL FOR THE COMPANY
The following opinions are to be provided by counsel for the
Company, subject to customary assumptions, limitations and
qualifications. All capitalized terms used herein without
definition shall have the meanings ascribed thereto in the
Supplemental Agreement.
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Kansas and has all
requisite power and authority to execute and deliver the
Supplemental Agreement and to perform the provisions thereof.
2. The Supplemental Agreement has been duly authorized,
executed and delivered by the Company and constitutes a legal,
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms.
3. Each Subsidiary Guarantor is a corporation duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation and has all requisite power
and authority to execute and deliver its Subsidiary Guarantee and
to perform the provisions thereof.
4. Each Subsidiary Guarantee has been duly authorized,
executed and delivered by the respective Subsidiary Guarantor and
constitutes legal, valid and binding obligations of such Subsidiary
Guarantor, enforceable against such Subsidiary Guarantor in
accordance with their terms.
5. No consent, approval or authorization of, or
registration, filing or declaration with, any Governmental
Authority is required on the part of the Company or the Subsidiary
Guarantors for the validity of the execution and delivery or for
the performance by the Company of the Supplemental Agreement or the
Subsidiary Guarantees.
6. The consummation of the transactions contemplated by the
Supplemental Agreement and the performance of the terms and
provisions of the Supplemental Agreement and the Subsidiary
Guarantees do not and will not (i) conflict with the charter, by-laws,
code of regulations or any other organic documents of the
Company or any Subsidiary, (ii) result in any breach of, or
constitute a default under, or result in the creation of any Lien
in respect of any property of the Company under, any indenture,
mortgage, deed of trust, bank loan or credit agreement, or other
agreement or instrument known to me, after due inquiry, to which
the Company or any Subsidiary is a party or by which the Company or
any Subsidiary or any of their respective properties may be bound
or affected, except for the Bank One Agreement with respect to the
Asset Sale Transaction, or (iii) conflict with or result in a
breach of any of the terms, conditions or provisions of any order,
judgment, decree or ruling of any court, arbitrator or Governmental
Authority applicable to the Company or any Subsidiary and known to
me, after due inquiry, or violate any provision of any law,
statute, rule or regulation of any Governmental Authority
applicable to the Company or any Subsidiary.
* * * *
This opinion is given solely for your benefit, and for the benefit
of the institutional investor holders from time to time of the
Notes held by you, in connection with the transactions contemplated
by the Supplemental Agreement, and may not be relied upon by any
other person for any purpose without my prior written consent.
Exhibit 1
(to the Supplemental Agreement)
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT dated as of ------------, ----- made by
-------------------,a --------------- corporation (the "Guarantor"),
in favor of the holders from time to time of the Notes referred to
below (collectively the "Obligees").
WHEREAS, ShowBiz Pizza Time, Inc., a Kansas corporation (the
"Company"), has entered into several Note Purchase Agreements dated
as of June 15, 1995 (collectively the "Note Agreements" and terms
defined therein and not otherwise defined herein are being used
herein as so defined) with the institutional purchasers listed in
Schedule A thereto, pursuant to which the Company has issued and
sold to such purchasers $18,000,000 aggregate principal amount of
its 10.02% Series A Senior Notes due 2001 (the "Series A Notes")
and $10,000,000 aggregate principal amount of its Floating Rate
Series B Senior Notes due 2000 (the "Series B Notes" and, together
with the Series A Notes, the "Notes");
WHEREAS, the Company has requested the consent of the holders
of the Notes to enter into certain transactions with the Guarantor
that are prohibited by the Note Agreements; and
WHEREAS, it is a condition to obtaining the consent of such
holders that the Guarantor execute and deliver this Guarantee
Agreement;
NOW, THEREFORE, in consideration of the premises the Guarantor
hereby agrees as follows:
SECTION 1. Guarantee. The Guarantor unconditionally and
irrevocably guarantees, as primary obligor and not merely as
surety,
A. the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of
the Company arising under the Notes and the Note Agreements,
including all extensions, modifications, substitutions,
amendments and renewals thereof, whether for principal,
interest (including without limitation interest on any overdue
principal, premium and interest at the rate specified in the
Notes and interest accruing or becoming owing both prior to
and subsequent to the commencement of any proceeding against
or with respect to the Company under any chapter of the
Bankruptcy Code of 1978, 11 U.S.C. S101 et seq.), Make-Whole
Amount, Additional Amounts, fees, expenses, indemnification or
otherwise, and
B. the due and punctual performance and observance by
the Company of all covenants, agreements and conditions on its
part to be performed and observed under the Notes and the Note
Agreements;
(all such obligations are called the "Guaranteed Obligations");
provided that the aggregate liability of the Guarantor hereunder in
respect of the Guaranteed Obligations shall not exceed at any time
the lesser of (1) the amount of the Guaranteed Obligations and (2)
the maximum amount for which the Guarantor is liable under this
Guarantee Agreement without such liability being deemed a
fraudulent transfer under applicable Debtor Relief Laws (as
hereinafter defined), as determined by a court of competent
jurisdiction. As used herein, the term "Debtor Relief Laws" means
any applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, insolvency, reorganization or similar
debtor relief laws affecting the rights of creditors generally from
time to time in effect.
The Guarantor also agrees to pay, in addition to the amount
stated above, any and all reasonable expenses (including reasonable
counsel fees and expenses) incurred by any Obligee in enforcing any
rights under this Guarantee Agreement or in connection with any
amendment of this Guarantee Agreement.
Without limiting the generality of the foregoing, this
Guarantee Agreement guarantees, to the extent provided herein, the
payment of all amounts which constitute part of the Guaranteed
Obligations and would be owed by any other Person to any Obligee
but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar
proceeding involving such Person.
SECTION 2. Guarantee Absolute. The obligations of the
Guarantor under Section 1 of this Guarantee Agreement constitute a
present and continuing guaranty of payment and not of
collectability and the Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of
the Notes and the Note Agreements, 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 Obligee with
respect thereto. The obligations of the Guarantor under this
Guarantee Agreement are independent of the Guaranteed Obligations,
and a separate action or actions may be brought and prosecuted
against the Guarantor to enforce this Guarantee Agreement,
irrespective of whether any action is brought against the Company
or any other Person liable for the Guaranteed Obligations or
whether the Company or any other such Person is joined in any such
action or actions. The liability of the Guarantor under this
Guarantee Agreement shall be primary, absolute, irrevocable, and
unconditional irrespective of:
A. any lack of validity or enforceability of any
Guaranteed Obligation, any Note, the Note Agreements or any
agreement or instrument relating thereto:
B. any change in the time, manner or place of payment
of, or in any other term of, all or any of the Guaranteed
Obligations, or any other amendment or waiver of or any
consent to departure from any Note, the Note Agreements or
this Guarantee Agreement;:
C. any taking, exchange, release or non-perfection of
any collateral, or any taking, release or amendment or waiver
of or consent to departure by the Guarantor or other Person
liable, or any other guarantee, for all or any of the
Guaranteed Obligations:
D. any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any
manner of sale or other disposition of any collateral or any
other assets of the Company or any other Subsidiary:
E. any change, restructuring or termination of the
corporate structure or existence of the Company or any other
Subsidiary; :
F. any other circumstance (including without limitation
any statute of limitations) that might otherwise constitute a
defense, offset or counterclaim available to, or a discharge
of, the Company or the Guarantor.
This Guarantee Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any
of the Guaranteed Obligations is rescinded or must otherwise be
returned by any Obligee, or any other Person upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, all as
though such payment had not been made.
SECTION 3. Waivers. The Guarantor hereby irrevocably waives,
to the extent permitted by applicable law::
A. promptness, diligence, presentment, notice of
acceptance and any other notice with respect to any of the
Guaranteed Obligations and this Guarantee Agreement;:
B. any requirement that any Obligee or any other Person
protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action
against the Company or any other Person or any collateral;:
C. any defense, offset or counterclaim arising by
reason of any claim or defense based upon any action by any
Obligee;:
D. any duty on the part of any Obligee to disclose to
the Guarantor any matter, fact or thing relating to the
business, operation or condition of any Person and its assets
now known or hereafter known by such Obligee; and:
E. any rights by which it might be entitled to require
suit on an accrued right of action in respect of any of the
Guaranteed Obligations or require suit against the Company or
the Guarantor or any other Person.
SECTION 4. Waiver of Subrogation and Contribution. The
Guarantor shall not assert, enforce, or otherwise exercise (A) any
right of subrogation to any of the rights, remedies, powers,
privileges or liens of any Obligee or any other beneficiary against
the Company or any other obligor on the Guaranteed Obligations or
any collateral or other security, or (B) any right of recourse,
reimbursement, contribution, indemnification, or similar right
against the Company, and the Guarantor hereby waives any and all of
the foregoing rights, remedies, powers, privileges and the benefit
of, and any right to participate in, any collateral or other
security given to any Obligee or any other beneficiary to secure
payment of the Guaranteed Obligations, until such time as the
Guaranteed Obligations have been paid in full.
SECTION 5. Representations and Warranties. The Guarantor
hereby represents and warrants as follows::
A. The Guarantor is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation. The execution, delivery and
performance of this Guarantee Agreement have been duly
authorized by all necessary action on the part of the
Guarantor:
B. The execution, delivery and performance by the
Guarantor of this Guarantee Agreement will not (i) contravene,
result in any breach of, or constitute a default under, or
result in the creation of any Lien in respect of any property
of the Guarantor or any Subsidiary of the Guarantor under, any
indenture, mortgage, deed of trust, loan, purchase or credit
agreement, lease, corporate charter or by-laws, or any other
material agreement or instrument to which the Guarantor or any
Subsidiary of the Guarantor is bound or by which the Guarantor
or any Subsidiary of the Guarantor or any of their respective
properties may be bound or affected, (ii) conflict with or
result in a breach of any of the terms, conditions or
provisions of any order, judgment, decree, or ruling of any
court, arbitrator or Governmental Authority applicable to the
Guarantor or any Subsidiary of the Guarantor or (iii) violate
any provision of any statute or other rule or regulation of
any Governmental Authority applicable to the Guarantor or any
Subsidiary of the Guarantor:
C. The Guarantor and the Company are members of the
same consolidated group of companies and are engaged in
related businesses and the Guarantor will derive substantial
direct and indirect benefit from the execution and delivery of
this Guarantee Agreement.
SECTION 6. Amendments, Etc. No amendment or waiver of any
provision of this Guarantee Agreement and no consent to any
departure by the Guarantor therefrom shall in any event be
effective unless the same shall be in writing and signed by the
Required Holders, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given; provided that no amendment, waiver or
consent shall, unless in writing and signed by all Obligees, (i)
limit the liability of or release the Guarantor hereunder, (ii)
postpone any date fixed for, or change the amount of, any payment
hereunder or (iii) change the percentage of Notes the holders of
which are, or the number of Obligees, required to take any action
hereunder.
SECTION 7. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing and (A)
by telecopy if the sender on the same day sends a confirming copy
of such notice by a recognized overnight delivery service (charges
prepaid), or (B) by registered or certified mail with return
receipt requested (postage prepaid), or (C) by a recognized
overnight delivery service (with charges prepaid). Such notice if
sent to the Guarantor shall be addressed to it at the address of
the Guarantor provided below its name on the signature page of this
Guarantee Agreement or at such other address as the Guarantor may
hereafter designate by notice to each holder of Notes, or if sent
to any holder of Notes, shall be addressed to it as set forth in
the Note Agreements. Any notice or other communication herein
provided to be given to the holders of all outstanding Notes shall
be deemed to have been duly given if sent as aforesaid to each of
the registered holders of the Notes at the time outstanding at the
address for such purpose of such holder as it appears on the Note
register maintained by the Company in accordance with the
provisions of Section 13.1 of the Note Agreements. Notices under
this Section 7 will be deemed given only when actually received.
SECTION 8. No Waiver; Remedies. No failure on the part of
any Obligee 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 9. Continuing Guarantee. This Guarantee Agreement is
a continuing guarantee of payment and performance and shall (A)
remain in full force and effect until payment in full of the
Guaranteed Obligations and all other amounts payable under this
Guarantee Agreement, (B) be binding upon the Guarantor, its
successors and assigns and (C) inure to the benefit of and be
enforceable by the Obligees and their successors, transferees and
assigns.
SECTION 10. Jurisdiction and Process; Waiver of Jury Trial.
The Guarantor irrevocably submits to the non-exclusive in personam
jurisdiction of any New York State or federal court sitting in the
Borough of Manhattan, The City of New York, over any suit, action
or proceeding arising out of or relating to this Guarantee
Agreement. To the fullest extent permitted by applicable law, the
Guarantor irrevocably waives and agrees not to assert, by way of
motion, as a defense or otherwise, any claim that it is not subject
to the in personam jurisdiction of any such court, any objection
that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in any such court and any
claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
The Guarantor consents to process being served in any suit,
action or proceeding of the nature referred to in this Section by
mailing a copy thereof by registered or certified mail, postage
prepaid, return receipt requested, to the Guarantor at its address
specified in Section 7 or at such other address of which you shall
then have been notified pursuant to said Section. The Guarantor
agrees that such service upon receipt (i) shall be deemed in every
respect effective service of process upon it in any such suit,
action or proceeding and (ii) shall, to the fullest extent
permitted by applicable law, be taken and held to be valid personal
service upon and personal delivery to the Guarantor. Notices
hereunder shall be conclusively presumed received as evidenced by
a delivery receipt furnished by the United States Postal Service or
any recognized courier or overnight delivery service.
Nothing in this Section 10 shall affect the right of any
holder of a Note to serve process in any manner permitted by law,
or limit any right that the holders of any of the Notes may have to
bring proceedings against the Guarantor in the courts of any
appropriate jurisdiction or to enforce in any lawful manner a
judgment obtained in one jurisdiction in any other jurisdiction.
THE GUARANTOR WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT ON OR
WITH RESPECT TO THIS GUARANTEE AGREEMENT OR ANY OTHER DOCUMENT
EXECUTED IN CONNECTION HEREWITH.
SECTION 11. Governing Law. This Guarantee Agreement shall
be construed and enforced in accordance with, and the rights of the
Guarantor and the Obligees shall be governed by, the laws of the
State of New York excluding choice-of-law principles of the law of
such State that would require the application of the laws of a
jurisdiction other than such State.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee
Agreement to be duly executed and delivered as of the date first
above written.
[GUARANTOR]
By--------------------
Title:
Address:
Attention:
Telephone:
Telecopy: