Exhibit 10.26
EXECUTION COPY
GUARANTEE AGREEMENT dated as of January 11, 2000, among
KANSAS CITY SOUTHERN INDUSTRIES, INC., a Delaware corporation
("Holdings"), each Subsidiary of Holdings listed on Schedule I
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hereto or becoming a party hereto as provided in Section 19
hereof (each individually, a "Subsidiary Guarantor" and,
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collectively, together with Holdings, the "Guarantors") and THE
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CHASE MANHATTAN BANK ("Chase"), as collateral agent (the
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"Collateral Agent") for the Secured Parties (as defined in the
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Credit Agreement referred to below).
Reference is made to the Credit Agreement dated as of January 11, 2000 (as
amended, supplemented or otherwise modified from time to time, the "Credit
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Agreement"), among Holdings, The Kansas City Southern Railway Company, a
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Missouri corporation (the "Borrower"), the lenders from time to time party
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thereto (the "Lenders") and Chase, as administrative agent (in such capacity,
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the "Administrative Agent"), collateral agent (in such capacity, the "Collateral
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Agent") and issuing bank (in such capacity, the "Issuing Bank") Capitalized
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terms used and not otherwise 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 pursuant to, and upon the terms and
subject to the conditions specified in, the Credit Agreement. Each of the
Guarantors 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 Guarantors of this Agreement. In order to induce
the Lenders to make Loans and the Issuing Bank to issue the Letters of Credit,
the Guarantors are willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Guarantor unconditionally guarantees,
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jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, (a) the due and punctual payment by the Borrower or the
applicable Loan Parties of (i) the principal of 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 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 Holdings,
the Borrower or any other Subsidiary to the Secured Parties under the Credit
Agreement or any other Loan Document, (b) the due and punctual payment and
performance of all covenants, agreements, obligations, and liabilities of the
Loan Parties, monetary or otherwise, under or pursuant to the Credit Agreement
and the other Loan Documents and (c) the due and punctual payment of all
obligations of the Borrower under each Hedging Agreement entered into (i) prior
to the date hereof with any counterparty that is a Lender (or an Affiliate
thereof) on the date hereof or (ii) on or after the date hereof with any
counterparty that is a Lender (or an Affiliate thereof) at the time such Hedging
Agreement is entered into, in either case to provide protection against interest
rate fluctuations (all the obligations referred to in the preceding clauses (a)
through (c) being collectively called the "Obligations"). Each Guarantor further
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agrees that the Obligations may be extended or renewed, in whole or in part.
SECTION 2. Obligations Not Waived. To the fullest extent permitted
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by applicable law, each Guarantor waives presentment to, demand of payment from
and protest to the Borrower or to any other Guarantor of any of the Obligations,
and also waives notice of acceptance of its guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable law, the obligations
of each Guarantor hereunder shall not be affected by (a) the failure of the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender to
assert any claim or demand or to enforce or exercise any right or remedy against
the Borrower or any other Guarantor under the provisions of the Credit
Agreement, any other Loan Document or otherwise, (b) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of, this Agreement, any other Loan Document, any other Guarantee or any other
agreement, including with respect to any other Guarantor under this Agreement,
or (c) the failure of Holdings or any Subsidiary to comply with Section 5.12 of
the Credit Agreement and Section 19.
SECTION 3. Guarantee of Payment. Each Guarantor further agrees that
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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 Administrative
Agent, the Collateral Agent, the Issuing Bank or any Lender to any balance of
any deposit account or credit on the books of the Administrative Agent, the
Collateral Agent, the Issuing Bank or any Lender in favor of the Borrower, any
other Guarantor or any other Person.
SECTION 4. No Discharge or Diminishment of Guarantee. The
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obligations of each Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than the payment in
full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agent, the Collateral
Agent, the Issuing Bank or any Lender to assert any claim or demand or to
enforce any remedy under the Credit Agreement, any other Loan Document or any
other instrument or agreement, by any waiver or modification of any provision of
any thereof, by any default, failure or delay, wilful or otherwise, in the
performance of the Obligations, or by any other act or omission that may or
might in any manner or to any extent vary the risk of any Guarantor or that
would otherwise operate as a discharge of each Guarantor as a matter of law or
equity (other than the payment in full in cash of all the Obligations).
SECTION 5. Defenses Waived. To the fullest extent permitted by
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applicable law, each of the Guarantors waives any defense based on or arising
out of any defense of the Borrower or any other Guarantor 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 or any other
Guarantor, other than the final payment in full in cash of the Obligations. The
Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders
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 any Guarantor or any other
guarantor or exercise any other right or remedy available to them against any
Guarantor or any other guarantor, without affecting or impairing in any way the
liability of any Guarantor hereunder except to the extent the Obligations have
been fully, finally and indefeasibly paid in cash. Pursuant to applicable law,
each of the Guarantors waives any defense arising out of any such election even
though such election operates, pursuant to applicable law, to impair or to
extinguish any right of reimbursement or subrogation or other right or remedy of
such Guarantor against any other Guarantor or guarantor, as the case may be, or
any security.
SECTION 6. Agreement to Pay; Subordination. In furtherance of the
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foregoing and not in limitation of any other right that the Administrative
Agent, the Collateral Agent, the Issuing Bank or any Lender has at law or in
equity against any Guarantor by virtue hereof, upon the failure of the Borrower
to pay any Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, each
Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the
Administrative Agent, the Collateral Agent, the Issuing Bank or such Lender as
designated thereby in cash the amount of such unpaid Obligation. Upon payment
by any Guarantor of any sums to the Administrative Agent, the Collateral Agent,
the Issuing Bank or any Lender as provided above, all rights of such Guarantor
against the Borrower arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior payment in full in cash
of all the Obligations. In addition, any indebtedness of any Guarantor now or
hereafter held by any 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 Guarantor on account of (i) such subrogation, contribution,
reimbursement, indemnity or similar right or (ii) any such indebtedness of any
Guarantor, such amount shall be held in trust for the benefit of the Lenders 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 Credit Agreement or any other Loan Document.
SECTION 7. Information. Each of the Guarantors assumes all
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responsibility for being and keeping itself informed of the Borrower's and the
other Guarantors' financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Obligations and the nature, scope and
extent of the risks that such Guarantor assumes and incurs hereunder, and agrees
that none of the Administrative Agent, the Collateral Agent, Issuing Banks and
the Lenders will have any duty to advise any of the Guarantors of information
known to it or any of them regarding such circumstances or risks.
SECTION 8. Representations and Warranties; Agreements. Each of the
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Guarantors represents and warrants as to itself that all representations and
warranties relating to it contained in any Loan Document to which it is a party
are true and correct in all material respects. Each of the Guarantors agrees
that the provisions of Section 2.17 of the Credit Agreement shall apply equally
to each Guarantor with respect to payments made by it hereunder.
SECTION 9. Termination. The Guarantees made hereunder (a) shall,
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subject to clause (b) below, terminate when all the Obligations have been paid
in full and the Lenders have no further commitment to lend under the Credit
Agreement and the Issuing Banks have no further commitment to issue Letters of
Credit 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 the Administrative Agent, the Collateral Agent,
the Issuing Bank or any Lender or any Guarantor upon the bankruptcy or
reorganization of any Guarantor or otherwise.
SECTION 10. Binding Agreement; Assignments. Whenever in this
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Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall become effective
as to any Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Collateral Agent, and a counterpart
hereof shall have been executed on behalf of the Collateral Agent, and
thereafter shall be binding upon such Guarantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Guarantor, the Administrative Agent, the Collateral Agent, the Issuing Banks and
the Lenders, and their respective successors and assigns, except that no
Guarantor shall have the right to assign its rights or obligations hereunder or
any interest herein (except in connection with any transaction permitted by
Section 6.04 of the Credit Agreement), and any such attempted assignment shall
be void. This Agreement shall be construed as a separate agreement with respect
to each Guarantor and may be amended, modified, supplemented, waived or released
with respect to any Guarantor without the approval of any other Guarantor and
without affecting the obligations of any other Guarantor hereunder.
SECTION 11. Waivers; Amendment. (a) No failure or delay of the
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Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the
Collateral Agent, the Issuing Bank or any Lender hereunder or under the Credit
Agreement or any other Loan Document are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by any
Guarantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Guarantor in any case shall entitle such Guarantor to
any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Guarantors to which such waiver, amendment or modification relates and the
Collateral Agent (with the prior written consent of the Lenders or the Required
Lenders if required under the Credit Agreement).
SECTION 12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 13. Notices. All communications and notices hereunder shall
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be in writing and given as provided in Section 9.01 of the Credit Agreement.
All communications and notices hereunder to each Guarantor shall be given to it
in care of Holdings.
SECTION 14. Survival of Agreement; Severability. (a) All covenants,
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agreements, representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement shall be considered to have been relied upon by
the Administrative Agent, the Collateral Agent, the Issuing Banks and the
Lenders and shall survive the making by the Lenders of the Loans and the
issuance of Letters of Credit by the Issuing Banks regardless of any
investigation made by any of them or on their behalf, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan
or any other fee or amount payable under this Agreement or any other Loan
Document is outstanding and unpaid and as long as the Commitments have not been
terminated.
(b) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal 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 15. Counterparts. This Agreement may be executed in
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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 10. 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 16. Rules of Interpretation. The rules of interpretation
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specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 17. Jurisdiction; Consent to Service of Process. (a) Each
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Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of
any such action or proceeding may be heard and determined in such New York State
or, to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender may otherwise have to bring any action or proceeding relating to this
Agreement against any Guarantor or its properties in the courts of any
jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any New York State or
Federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 13. 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 18. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
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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. EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 19. Additional Subsidiary Guarantors. Certain additional
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Subsidiaries may be required from time to time, under the terms of the Credit
Agreement, to enter into this Agreement as Subsidiary Guarantors. Upon execution
and delivery by the Collateral Agent and a Subsidiary of an instrument in the
form of Annex 1, such 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 such instrument shall not require the
consent of any 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 20. Right of Setoff. If an Event of Default shall have
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occurred and be continuing, each of the Administrative Agent, the Collateral
Agent, the Issuing Banks and the Lenders 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 Person to or
for the credit or the account of any Guarantor against any or all the
obligations of such Guarantor now or
hereafter existing under this Agreement held by such Person, irrespective of
whether or not such Person shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Person under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Person may have.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
KANSAS CITY SOUTHERN INDUSTRIES, INC.,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Designated Person
CAYMEX TRANSPORATION, INC.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: VP & Treasurer
GATEWAY EASTERN RAILWAY COMPANY,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Designated Person
GATEWAY WESTERN RAILWAY COMPANY,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Designated Person
GLOBAL TERMINALING SERVICES, INC.
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: VP & Secretary
KCS TRANSPORTATION COMPANY,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Designated Person
KANSAS CITY SOUTHERN LINES, INC.,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sr. VP & CFO
SCC HOLDINGS, INC.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: VP & Secretary
MID-SOUTH MICROWAVE, INC.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Designated Person
▇▇▇▇-▇▇▇▇▇▇ CORPORATION,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP & Treasurer
SOUTHERN DEVELOPMENT COMPANY,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: VP & Secretary
SOUTHERN INDUSTRIAL SERVICES, INC.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Designated Person
TRANS-SERVE, INC.,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP & Treasurer
▇▇▇▇▇, INC.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: VP and Secretary
THE CHASE MANHATTAN BANK, as
Administrative Agent,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ANNEX 1 to the
Guarantee Agreement
SUPPLEMENT NO. dated as of , to the
GUARANTEE AGREEMENT dated as of January 11, 2000, among KANSAS
CITY SOUTHERN INDUSTRIES, INC., a Delaware corporation
("Holdings"), each Subsidiary of Holdings listed on Schedule I
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thereto or becoming a party thereto as provided in Section 19
thereof (each individually, a "Subsidiary Guarantor" and,
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collectively, together with Holdings, the "Guarantors") and THE
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CHASE MANHATTAN BANK ("Chase"), as collateral agent (the
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"Collateral Agent") for the Secured Parties (as defined in the
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Credit Agreement referred to below).
A. Reference is made to the Credit Agreement dated as of January 11,
2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Holdings, The Kansas City Southern Railway Company, a
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Missouri corporation (the "Borrower"), the lenders from time to time party
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thereto (the "Lenders"), and Chase, as administrative agent (in such capacity,
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the "Administrative Agent"), collateral agent (in such capacity, the "Collateral
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Agent") and issuing bank (in such capacity, the "Issuing Bank") Capitalized
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terms used herein and not defined herein shall have the meanings assigned to
such terms in the Credit Agreement.
B. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to such terms in the Guarantee Agreement and the Credit
Agreement.
C. The Subsidiary Guarantors have entered into the Guarantee Agreement
in order to induce the Lenders to make Loans and the Issuing Banks to issue
Letters of Credit. The undersigned Subsidiary of Holdings (the "New Subsidiary
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Guarantor") is executing this Supplement in accordance with the requirements of
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the Credit Agreement to become a Subsidiary Guarantor under the Guarantee
Agreement in order to induce the Lenders to make additional Loans and as
consideration for Loans previously made.
Accordingly, the Administrative Agent and the New Subsidiary Guarantor
agree as follows:
SECTION 1. In accordance with Section 19 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 to include the New Subsidiary Guarantor. The Guarantee
Agreement is hereby incorporated herein by reference.
SECTION 2. The New Subsidiary Guarantor represents and warrants to
the Administrative Agent, the Issuing Banks and the Lenders 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, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
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 validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in Section 13 of the Guarantee Agreement.
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the
Administrative Agent for its reasonable 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
_________________________
Title:
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by
_________________________
Title:
