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EXHIBIT 10.2
GUARANTY
GUARANTY dated as of October 31, 1997 made by each of the Persons
listed on the signature pages hereto (each a "Guarantor", and collectively the
"Guarantors"), in favor of the Lender Parties (as defined in the Credit
Agreement referred to below).
PRELIMINARY STATEMENT. The Lender Parties, Citicorp USA, Inc., as
Agent for the Lender Parties and Citicorp Securities, Inc., as Arranger, are
parties to a Credit Agreement dated as of October 31, 1997 (said Agreement, as
it may hereafter be amended, supplemented or otherwise modified from time to
time, being the "Credit Agreement", the terms defined therein and not otherwise
defined herein being used herein as therein defined) with ▇▇▇▇▇▇▇ INSTRUMENTS,
INC., a Delaware corporation (the "Borrower"). Each Guarantor may from time to
time receive a portion of the proceeds of the Advances under the Credit
Agreement (and other advances or contributions from the Borrower that the
Borrower will be able to make as a result of the credit extended to the Borrower
under the Credit Agreement) and will otherwise derive substantial direct and
indirect benefits from the Letters of Credit issued pursuant to the Credit
Agreement and the other transactions contemplated thereby. It is a condition
precedent to the making of Advances and the issuance of Letters of Credit by the
Lender Parties under the Credit Agreement that each of the Guarantors shall have
executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lender Parties to make Advances and to issue Letters of Credit under
the Credit Agreement from time to time, each Guarantor hereby agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) Each Guarantor
hereby unconditionally and irrevocably guarantees the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all Obligations of
the Borrower now or hereafter existing under the Loan Documents, whether for
principal, interest, fees, expenses or otherwise (such Obligations being the
"Guaranteed Obligations"), and agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by the Agent or, upon the
occurrence and during the continuation of any Event of Default, any other Lender
Parties in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, the liability of each Guarantor shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
the Borrower to the Agent or any other Lender Party under the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving the Borrower.
(b) Each of the Guarantors, and by its acceptance of this
Guaranty, the Agent and each other Lender Party, hereby confirm that it is the
intention of all such Persons that this Guaranty and the Obligations of each of
the Guarantors hereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law (as defined below), the
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Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal or state law to the extent applicable to this Guaranty. To
effectuate the foregoing intention, the Agent, the other Lender Parties and each
of the Guarantors hereby irrevocably agree that the Obligations of each of the
Guarantors under this Guaranty shall be limited to the maximum amount as will,
after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in respect of the
Obligations of such other Guarantor under this Guaranty, result in the
Obligations of such Guarantor under this Guaranty not constituting a fraudulent
transfer or conveyance. For purposes hereof, "Bankruptcy Law" means Title 11,
U.S. Code, or any similar Federal or state law for the relief of debtors.
(c) Each Guarantor agrees that in the event any payment shall be
required to be made to the Lender Parties under this Guaranty, such Guarantor
will contribute, to the maximum extent permitted by law, such amounts to each
other Guarantor so as to maximize the aggregate amount paid to the Lender
Parties under the Loan Documents.
Section 2. Guaranty Absolute. Each of the Guarantors guarantees
that the Guaranteed Obligations will be paid strictly in accordance with the
terms of the Loan Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agent or any other Lender Party with respect thereto. The
Obligations of each of the Guarantors under this Guaranty are independent of the
Guaranteed Obligations or any other Obligations of any other Loan Party under
the Loan Documents, and a separate action or actions may be brought and
prosecuted against each of the Guarantors to enforce this Guaranty, irrespective
of whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or
actions. The liability of each of the Guarantors under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and the Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document
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
Obligations of any other Loan Party under the Loan Documents, or any
other amendment or waiver of or any consent to departure from any Loan
Document, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to the
Borrower or any of its Subsidiaries or otherwise;
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(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, 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 for all or any of the Guaranteed
Obligations or any other Obligations of any other Loan Party under the
Loan Documents or any other assets of the Borrower or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of the Borrower or any of its Subsidiaries;
(f) any failure of any Lender Party to disclose to the Borrower
or the Guarantor any information relating to the financial condition,
operations, properties or prospects of any other Loan Party now or in
the future known to any Lender Party (each Guarantor waiving any duty on
the part of the Lender Parties to disclose such information); or
(g) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Agent or any other Lender Party that might
otherwise constitute a defense available to, or a discharge of, the
Borrower, any Guarantor or any other guarantor or surety.
This Guaranty 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 Lender Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) Each of the
Guarantors hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Guaranteed Obligations and this Guaranty
and any requirement that the Agent or any other Lender Party protect, secure,
perfect or insure any Lien on any property at any time subject thereto or
exhaust any right or take any action against the Borrower or any other Person or
any collateral.
(b) Each of the Guarantors hereby waives any right to revoke this
Guaranty, and acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.
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(c) Each of the Guarantors acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in this
Section 3 are knowingly made in contemplation of such benefits.
Section 4. Subrogation. None of the Guarantors shall exercise any
rights that it may now or hereafter acquire against the Borrower or any other
insider guarantor that arise from the existence, payment, performance or
enforcement of the Guarantor's Obligations under this Guaranty or any other Loan
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Agent or any other Lender Party
against the Borrower or any other insider guarantor or any collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Borrower or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash and the Commitments shall have expired or terminated. If
any amount shall be paid to any of the Guarantors in violation of the preceding
sentence at any time prior to the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty and the
Termination Date, such amount shall be held in trust for the benefit of the
Agent and the other Lender Parties and shall forthwith be paid to the Agent to
be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or to be held as collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter arising. If
(a) any of the Guarantors shall make payment to the Agent or any other Lender
Party of all or any part of the Guaranteed Obligations, (b) all of the
Guaranteed Obligations and all other amounts payable under this Guaranty shall
be paid in full in cash and (c) the Termination Date shall have occurred, the
Agent and the other Lender Parties will, at such Guarantor's request and
expense, execute and deliver to the Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment by such Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Any and all
payments made by any of the Guarantors hereunder shall be made, in accordance
with Section 2.13 of the Credit Agreement, free and clear of and without
deduction for any and all present or future Taxes. If any of the Guarantors
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender Party, (i) except as provided in Section 5(f),
the sum payable shall be increased as may be necessary so that, after making all
required deductions (including deductions applicable to additional sums
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payable under this Section 5), such Lender Party receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Guarantor
shall make such deductions and (iii) such Guarantor shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, each of the Guarantors shall pay any present or
future Other Taxes.
(c) Each of the Guarantors shall indemnify each Lender Party for
and hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 5) imposed on or paid by such Lender Party
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days from
the date such Lender Party makes written demand therefor, accompanied by a
calculation in reasonable detail of the amount demanded and evidence of the
Taxes and Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section) imposed or
paid by the Agent or any other Lender Party.
(d) Within 30 days after the date of any payment of Taxes, the
Guarantor making such payment (or on whose behalf such payment was made) shall
furnish to the Agent, at its address referred to in Section 8.02 of the Credit
Agreement, evidence satisfactory to the Agent of such payment. In the case of
any payment hereunder by or on behalf of any Guarantor through an account or
branch outside the United States or by or on behalf of any Guarantor by a payor
that is not a United States person, if such Guarantor determines that no Taxes
are payable in respect thereof, such Guarantor shall furnish, or shall cause
such payor to furnish, to the Agent, at such address, an opinion of counsel
acceptable to the Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of the Credit Agreement in the case of each Initial Lender or Initial
Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender Party in the case of each other
Lender Party, and from time to time thereafter as requested in writing by any of
the Guarantors (but only so long as such Lender Party remains lawfully able to
do so), shall provide each of the Agent and such Guarantor with two original
Internal Revenue Service forms 1001 or 4224, as appropriate, or any successor or
other form prescribed by the Internal Revenue Service, certifying that such
Lender Party is exempt from or is entitled to a reduced rate of United States
withholding tax on payments under the Credit Agreement or the Notes and two
copies of Internal Revenue Service forms W-8 or W-9, or
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any successor or other form prescribed by the Internal Revenue Service. In
addition to the forms described in the immediately preceding sentence, each
Lender Party organized under the laws of a jurisdiction outside the United
States shall, upon the request of a Guarantor or the Agent in writing, (i)
provide each of the Agent and such Guarantor with two further copies of such
forms or other appropriate certification of such forms on or before the date
that any such form expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form delivered to such Guarantor,
and (ii) obtain such extensions of the time for the filing and shall renew such
forms and certifications thereof as may be reasonably requested by such
Guarantor or the Agent. If the form provided by a Lender Party at the time such
Lender Party first becomes a party to the Credit Agreement indicates a United
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from Taxes unless and until such Lender Party
provides the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender Party assignee becomes
a party to the Credit Agreement, the Lender Party assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender Party assignee on such date.
(f) For any period with respect to which a Lender Party has
failed to provide any of the Guarantors with the appropriate form described in
subsection (e) above or failed to seek an extension of the time for filing such
successor form as required in writing to do so by the Agent or such Guarantor in
accordance with subsection (e) above (other than if such failure is due to a
change in law occurring after the date on which a form originally was required
to be provided or if such form otherwise is not required under subsection (e)
above), such Lender Party shall not be entitled to indemnification under
subsection (a) or (c) with respect to Taxes imposed by the United States by
reason of such failure; provided, however, that should a Lender Party become
subject to Taxes because of its failure to deliver a form required hereunder,
such Guarantor shall take such steps (at such Lender Party's expense) as such
Lender Party shall reasonably request to assist such Lender Party to recover
such Taxes.
Section 6. Representations and Warranties. Each of the Guarantors
hereby represents and warrants with respect to itself as follows:
(a) Each of the representations and warranties contained in the
Credit Agreement and made by the Borrower with respect to such Guarantor
and its properties, affairs and financial condition is true and correct.
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(b) There are no conditions precedent to the effectiveness of
this Guaranty that have not been satisfied or waived.
(c) Such Guarantor has, independently and without reliance upon
the Agent or any other Lender Party and based on such documents and
information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Guaranty, and such Guarantor has
established adequate means of obtaining from any other Loan Parties on a
continuing basis information pertaining to, and is now and on a
continuing basis will be completely familiar with, the financial
condition, operations, properties and prospects of such other Loan
Parties.
Section 7. Covenants. Each of the Guarantors covenants and agrees
that, so long as any part of the Guaranteed Obligations shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment, such Guarantor will, unless such of the Lender Parties as is
specified in Section 8.01 of the Credit Agreement shall otherwise consent in
writing, perform or observe, and cause its Subsidiaries to perform or observe,
all of the terms, covenants and agreements that the Loan Documents state that
the Borrower is to cause such Guarantor or such Subsidiaries to perform or
observe.
Section 8. Amendments, Etc. (a) No amendment or waiver of any
provision of this Guaranty and no consent to any departure by any of the
Guarantors therefrom shall in any event be effective unless the same shall be in
writing and signed by the Agent and the Required Lenders, or by the Agent on
behalf of such Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all of the Lender Parties (other than any Lender Party that is, at
such time, a Defaulting Lender), or by the Agent on behalf of such Lenders, (i)
limit the liability of the Company hereunder, (ii) postpone any date fixed for
payment by the Company hereunder or (iii) change the number of Lender Parties
required to take any action hereunder.
(b) Upon the execution and delivery by any Person of a supplement
to this Guaranty, in each case in substantially the form of Exhibit A hereto or
otherwise in form and substance reasonably satisfactory to the Agent (each, a
"Guaranty Supplement"), such Person shall be referred to as an "Additional
Guarantor" and shall be and become a Guarantor, and each reference in this
Guaranty to an "Additional Guarantor" or a "Guarantor" shall also mean and be a
reference to such Additional Guarantor and, subject to the terms of the
definition of "Subsidiary Guarantor" set forth in Section 1.01 of the Credit
Agreement, each reference in any of the other Loan Documents to a "Subsidiary
Guarantor" or a "Loan Party" shall also mean and be a reference to such
Additional Guarantor.
Section 9. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and
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mailed, telegraphed, telecopied, telexed or delivered to the parties hereto, if
to any of the Guarantors, at the address set forth below its name on the
signature pages to this Guarantee or, in the case of any of the Additional
Guarantors, at the address set forth below its name on the signature page to the
Guarantee Supplement executed and delivered by it, if to the Agent or any other
Lender Party, at its address specified in the Credit Agreement, or as to any
party at such other address as shall be designated by such party in a written
notice to each other party. All such notices and other communications shall,
when mailed, telegraphed, telecopied or telexed, be effective three Business
Days after deposit in the mails, or when delivered to the telegraph company,
transmitted by telecopier or confirmed by telex answerback, respectively.
Section 10. No Waiver; Remedies. No failure on the part of the
Agent or any other Lender Party 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 11. Right of Set-off. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 of the Credit Agreement to
authorize the Agent to declare the Notes due and payable pursuant to the
provisions of said Section 6.01, each Lender Party and each of its respective
Affiliates 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 Lender Party or such Affiliate to
or for the credit or the account of any of the Guarantors against any and all of
the Obligations of such Guarantor now or hereafter existing under this Guaranty,
whether or not such Lender Party shall have made any demand under this Guaranty
and although such Obligations may be unmatured. Each Lender Party agrees
promptly to notify the applicable Guarantor after any such set-off and
application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
Party and its respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender Party and its respective Affiliates may have.
Section 12. Indemnification. Without limitation on any other
Obligations of the Guarantors or remedies of the Lender Parties under this
Guaranty, each of the Guarantors shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Lender Party from and against,
and shall pay on demand, any and all losses, liabilities, damages, costs,
expenses and charges (including the fees and disbursements of such Lender
Party's legal counsel) suffered or incurred by such Lender Party as a result of
any failure of
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any Guaranteed Obligations to be the legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their terms.
Section 13. Continuing Guaranty; Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the later of (i) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty and
(ii) the Termination Date, (b) be binding upon each of the Guarantors, its
successors and assigns and (c) inure to the benefit of and be enforceable by the
Agent and the other Lender Parties and their successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), any Lender
Party may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitments, the Advances owing to it and the Note or Notes
held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Lender Party
herein or otherwise, in each case as and to the extent provided in Section 8.07
of the Credit Agreement.
Section 14. Governing Law; Jurisdiction; Waiver of Jury Trial,
Etc. (a) This Guaranty shall be governed by, and construed in accordance with,
the laws of the State of New York.
(b) Each of the Guarantors 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 Guaranty or any of the other Loan
Documents to which it is or is to be a party, or for recognition or enforcement
of any judgment, and each of the Guarantors hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each of the Guarantors
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 Guaranty shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Guaranty or any of the other Loan Documents to which it is or
is to be a party in the courts of any jurisdiction.
(c) Each of the Guarantors 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 Guaranty or any of the
other Loan Documents to which it is or is to be a party in any New York State or
federal court. Each of the Guarantors hereby irrevocably waives, to the
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fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each of the Guarantors hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the transactions contemplated thereby or the actions of the Agent or
any other Lender Party in the negotiation, administration, performance or
enforcement thereof.
Section 15. Execution in Counterparts. This Guaranty may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Guaranty by telecopier shall be effective as delivery of a manually executed
counterpart of this Guaranty.
[Remaineder of page intentionally left blank.]
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
▇▇▇▇▇▇▇ INSTRUMENTS (NAGUABO) INC.
SMITHKLINE DIAGNOSTICS, INC.
HYBRITECH INCORPORATED
▇▇▇▇▇▇▇ CORPORATION
▇▇▇▇▇▇▇ LEASING CORPORATION
By /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title: Treasurer
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EXHIBIT A TO
GUARANTY
FORM OF GUARANTEE SUPPLEMENT
[Date of Guarantee Supplement]
Citicorp USA, Inc., as
Agent for the Lender Parties party to the
Credit Agreement referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: __________________
Credit Agreement dated as of October 31, 1997 (as in effect on
the date hereof, the "Credit Agreement") among ▇▇▇▇▇▇▇ Instruments, Inc., the
banks, financial institutions and other lenders from time to time party thereto,
Citicorp USA, Inc., as Agent and Citicorp Securities, Inc., as Arranger.
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to
the Guaranty referred to therein (such Guaranty, as in effect on the date hereof
and as it may be further amended, supplemented or otherwise modified hereafter
from time to time, being referred to herein as the "Guaranty"). Capitalized
terms not otherwise defined in this Guaranty Supplement shall have the same
meanings as specified therefor in the Credit Agreement or the Guaranty.
SECTION 1. Guaranty; Limitation of Liability. (a) The undersigned
hereby unconditionally and irrevocably guarantees the punctual payment
when due, whether at stated maturity, by acceleration or otherwise, of
all Obligations of the Borrower now or hereafter existing under the Loan
Documents, whether for principal, interest, fees, expenses or otherwise
(such Obligations being the "Guaranteed Obligations"), and agrees to pay
any and all expenses (including reasonable counsel fees and expenses)
incurred by the Agent or, upon the occurrence and during the
continuation of any Event of Default, any other Lender Parties in
enforcing any rights under this Guaranty Supplement or the Guaranty, on
the terms and subject to the limitations set forth in the Guaranty, as
if it were an original party thereto. Without limiting the generality of
the foregoing, the undersigned's liability shall extend to all amounts
that constitute part of the Guaranteed Obligations and would be owed by
the Borrower to the Agent or any other Lender Party under the Loan
Documents but for the fact that they are unenforceable or not allowable
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due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Borrower.
(b) The undersigned and, by its acceptance of this Guaranty
Supplement, the Agent and each other Lender Party, hereby confirm that
it is the intention of all such Persons that this Guaranty Supplement,
the Guaranty and the Obligations of the undersigned hereunder and
thereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to this Guaranty Supplement or the Guaranty. To
effectuate the foregoing intention, the undersigned, the Agent and the
other Lender Parties hereby irrevocably agree that the Obligations of
the undersigned under this Guaranty Supplement and the Guaranty shall be
limited to the maximum amount as will, after giving effect to such
maximum amount and all of the other contingent and fixed liabilities of
the undersigned that are relevant under such laws, and after giving
effect to any collections from, rights to receive contributions from or
payments made by or on behalf of any of the other Guarantors in respect
of the Obligations of such other Guarantor under the Guaranty, result in
the Obligations of the undersigned under this Guaranty Supplement and
the Guaranty not constituting a fraudulent transfer or conveyance.
(c) The undersigned hereby agrees that in the event any payment
shall be required to be made to the Lender Parties under the Guaranty,
the undersigned will contribute, to the maximum extent permitted by law,
such amounts to each other Guarantor so as to maximize the aggregate
amount paid to the Lender Parties under the Loan Documents.
SECTION 2. Obligations Under the Guaranty. The undersigned hereby
agrees, as of the date first above written, to be bound as a Guarantor
by all of the terms and conditions of the Guaranty to the same extent as
each of the other Guarantors. The undersigned further agrees, as of the
date first above written, that each reference in the Guaranty to an
"Additional Guarantor" or a "Guarantor" shall also mean and be a
reference to the undersigned, and each reference in any other Loan
Document to a "Guarantor" or a "Loan Party" shall also mean and be a
reference to the undersigned.
SECTION 3. Governing Law; Jurisdiction; Etc. (a) This Guaranty
Supplement shall be governed by, and construed in accordance with, the
laws of the State of New York.
(b) The undersigned 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
Guaranty Supplement, the Guaranty or any of the other Loan Documents to
which it is or is to be a party, or for recognition or enforcement of
any judgment, and the undersigned hereby
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irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New
York state court or, to the extent permitted by law, in such federal
court. The undersigned 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 Guaranty Supplement or the Guaranty shall affect
any right that any party may otherwise have to bring any action or
proceeding relating to this Guaranty Supplement, the Guaranty or any of
the other Loan Documents to which it is or is to be a party in the
courts of any jurisdiction.
(c) The undersigned 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 Guaranty
Supplement, the Guaranty or any of the other Loan Documents to which it
is a party in any New York state court or federal court. The undersigned
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.
SECTION 4. WAIVER OF JURY TRIAL. THE UNDERSIGNED IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT
OF OR RELATING TO THIS GUARANTY SUPPLEMENT, THE GUARANTY, ANY OF THE
OTHER LOAN DOCUMENTS, ANY OF THE DOCUMENTS DELIVERED PURSUANT TO THE
LOAN DOCUMENTS, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE
ACTIONS OF ANY OF THE AGENT OR ANY OF THE OTHER LENDER PARTIES IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
[NAME OF ADDITIONAL GUARANTOR]
By _______________________________
Name:
Title: