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EXHIBIT 4.24
EXECUTION COPY
PURCHASE MONEY GUARANTY
This PURCHASE MONEY GUARANTY (this "Purchase Money Guaranty") is made as of
the 27th day of August, 1997 by Walbro Corporation, a Delaware corporation (the
"Company" and each of the other undersigned guarantors (any and all such
guarantors collectively, including the Company, the "Guarantors" and
individually each a "Guarantor"), to Comerica Bank, as Agent ("Agent") for and
on behalf of the Banks (as defined below).
RECITALS
A. Pursuant to that certain Walbro Corporation Purchase Money Loan
Agreement (as amended or otherwise modified from time to time, the "Purchase
Money Loan Agreement") by and among the Company, Agent and the banks which are
named in and are signatories to the Purchase Money Loan Agreement ("Banks"), the
Banks have agreed to extend credit to Company and the Designated Borrowers which
from time to time become parties to the Purchase Money Loan Agreement on the
terms set forth in the Purchase Money Loan Agreement.
B. As a condition to entering into and performing their respective
obligations under the Purchase Money Loan Agreement, the Banks and the Agent
have required that the Guarantors provide to Agent, for and on behalf of the
Banks, among other guaranties, this Purchase Money Guaranty.
C. Each of the Guarantors desires to see the success of the Company and the
Designated Borrowers and, furthermore, shall receive direct and/or indirect
benefits from extensions of credit made or to be made pursuant to the Purchase
Money Loan Agreement to the Company and the Designated Borrowers.
D. The Agent is acting as Agent for the Banks pursuant to Section 9 of the
Purchase Money Loan Agreement.
NOW, THEREFORE, as a continuing inducement to the Agent and the Banks to
enter into and perform their respective obligations under the Purchase Money
Loan Agreement, each of the Guarantors has executed and delivered this Purchase
Money Guaranty.
1. Definitions. Unless otherwise provided herein, all capitalized terms
used in this Purchase Money Guaranty shall have the meanings specified in the
Purchase Money Loan Agreement. The term "Banks" as used herein shall include any
successors or permitted assigns of the Banks, in accordance with the Purchase
Money Loan Agreement.
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2. Guaranty. Each of the Guarantors hereby guarantees to the Banks the
punctual payment to the Banks when due, whether by acceleration or otherwise, of
all Purchase Money Indebtedness for which it is not otherwise obligated as a
primary obligor (under the Purchase Money Notes executed by it), including,
without limitation, principal, interest (including interest accruing on or after
the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding by such Guarantor, whether or not a claim for
post-filing or post-petition interest is allowed in such a proceeding), and all
other liabilities and obligations, direct or indirect, absolute or contingent,
due or to become due, now existing or hereafter incurred, which may arise under,
out of, or in connection with:
(a) any and all Purchase Money Notes made or to be made to the order
of the Banks (or any of them) by the Company, from time to time pursuant to
the terms and conditions of the Purchase Money Loan Agreement;
(b) any and all Purchase Money Notes made or to be made to the order
of the Banks (or any of them) by any of the Designated Borrowers, from time
to time pursuant to the terms and conditions of the Purchase Money Loan
Agreement; and
(c) all extensions, renewals and amendments of or to the Purchase
Money Notes or any replacements or substitutions therefor;
whether on account of principal, interest, fees, indemnities, and reasonable
costs and expenses (including without limitation, all reasonable fees and
disbursements of counsel to the Agent or any Bank) or otherwise, and hereby
agrees that if Company or any Designated Borrower, as applicable, shall fail to
pay any of such amounts when and as the same shall be due and payable, or shall
fail to perform and discharge any covenant, representation or warranty in
accordance with the terms of the Purchase Money Notes, the Purchase Money Loan
Agreement, or any of the other Purchase Money Loan Documents (subject, in each
case, to any applicable periods of grace or cure), each such Guarantor will
forthwith pay to the Agent, on behalf of the Banks, an amount equal to any such
amount or cause Company or the applicable Designated Borrower, as the case may
be, to perform and discharge any such covenant, representation or warranty, as
the case may be, and will pay any and all damages that may be incurred or
suffered in consequence thereof by Agent or any of the Banks and all reasonable
expenses, including reasonable attorneys' fees, that may be incurred by Agent in
enforcing such covenant, representation or warranty of Company or such
Designated Borrower, and in enforcing the covenants and agreements of this
Purchase Money Guaranty.
3. Unconditional Character of Guaranty. The obligations of each of the
Guarantors under this Purchase Money Guaranty, to the full extent of its
guaranty of Purchase Money Indebtedness hereunder, shall be absolute and
unconditional, and shall be a guaranty of payment and not of collection,
irrespective of the validity, regularity or enforceability of the Purchase Money
Notes, the Purchase Money Loan Agreement, or any of the other Purchase Money
Loan Documents, or any provision thereof, the absence of any action to enforce
the same, any waiver or consent with respect to or any amendment of any
provision thereof, the recovery of any judgment against any
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Person or action to enforce the same, any failure or delay in the enforcement of
the obligations of Company or any Designated Borrower under the Purchase Money
Notes, the Purchase Money Loan Agreement, or any of the other Purchase Money
Loan Documents, or any setoff, counterclaim, recoupment, limitation, defense or
termination, whether with or without notice to such Guarantor. Each of the
Guarantors hereby waives diligence, demand for payment, filing of claims with
any court, any proceeding to enforce any provision of the Purchase Money Notes
executed by Company or any of the Designated Borrowers, or the Purchase Money
Loan Agreement, or any of the other Purchase Money Loan Documents, any right to
require a proceeding first against Company or such Designated Borrower, as the
case may be, or against any other guarantor or other party providing collateral,
or to exhaust any security for the performance of the obligations of Company or
any of the Designated Borrowers, any protest, presentment, notice or demand
whatsoever, and such Guarantor hereby covenants that this Purchase Money
Guaranty shall not be terminated, discharged or released except, subject to
Section 5.5 hereof, upon final payment in full (subject to no revocation or
rescission) of all amounts due and to become due from Company or any Designated
Borrower, as and to the extent described above, and only to the extent of any
such payment, performance and discharge. Each of the Guarantors further
covenants that no security now or subsequently held by the Agent or the Banks
for the payment of the Purchase Money Indebtedness evidenced by the Purchase
Money Notes made by Company or any Designated Borrower, under the Purchase Money
Loan Agreement, or for the payment of any other Purchase Money Indebtedness of
Company or any Designated Borrower, to the Agent or the Banks under the Purchase
Money Loan Agreement, or the other Purchase Money Loan Documents, whether in the
nature of a security interest, pledge, lien, assignment, setoff, suretyship,
guaranty, indemnity, insurance or otherwise, and no act, omission or other
conduct of Agent or the Banks in respect of such security, shall affect in any
manner whatsoever the unconditional obligation of this Purchase Money Guaranty,
and that the Agent and each of the Banks, in their respective sole discretion
and without notice to Company or such Designated Borrower, may release,
exchange, enforce, apply the proceeds of and otherwise deal with any such
security without affecting in any manner the unconditional obligation of this
Purchase Money Guaranty.
Without limiting the generality of the foregoing, such obligations, and the
rights of the Agent to enforce the same on behalf of the Banks, by proceedings,
whether by action at law, suit in equity or otherwise, shall not be in any way
affected by (i) any insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, winding up or other proceeding involving
or affecting Company or any of the Designated Borrowers, or others, or (ii) any
change in the ownership of the capital stock of Company, any Designated
Borrower, or any other party providing collateral for any indebtedness covered
by this Purchase Money Guaranty, or any of their respective Affiliates.
Each of the Guarantors hereby waives to the fullest extent possible under
applicable law:
(a) any defense based upon the doctrine of marshaling of assets or
upon an election of remedies by Agent or the Banks, including, without
limitation, an election to proceed by non-judicial rather than judicial
foreclosure;
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(b) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal;
(c) any duty on the part of Agent or any of the Banks to disclose to
such Guarantor any facts Agent or the Banks may now or hereafter know about the
Company or any Designated Borrower, regardless of whether Agent or any Bank has
reason to believe that any such facts materially increase the risk beyond that
which such Guarantor intends to assume or has reason to believe that such facts
are unknown to such Guarantor or has a reasonable opportunity to communicate
such facts to such Guarantor, since such Guarantor acknowledges that it is fully
responsible for being and keeping informed of the financial condition of Company
and each of the Designated Borrowers and of all circumstances bearing on the
risk of non-payment of any Purchase Money Indebtedness hereby guaranteed;
(d) any claim for reimbursement, contribution, exoneration, indemnity
or subrogation, or any other similar claim, which such Guarantor may have or
obtain against the Company or any Designated Borrower, by reason of the
existence of this Purchase Money Guaranty, or by reason of the payment by such
Guarantor of any Purchase Money Indebtedness or the performance of this Purchase
Money Guaranty or of any other Purchase Money Loan Documents, until the Purchase
Money Indebtedness has been repaid and discharged in full and no commitment to
extend any credit under the Purchase Money Loan Agreement or any of the Purchase
Money Loan Documents (whether optional or obligatory), remains outstanding, and
any amounts paid to such Guarantor on account of any such claim at any time when
the obligations of such Guarantor under this Purchase Money Guaranty shall not
have been fully and finally paid shall be held by such Guarantor in trust for
Agent and the Banks, segregated from other funds of such Guarantor, and
forthwith upon receipt by such Guarantor shall be turned over to Agent in the
exact form received by such Guarantor (duly endorsed to Agent by such Guarantor,
if required), to be applied to such Guarantor's obligations under this Purchase
Money Guaranty, whether matured or unmatured, in such order and manner as Agent
may determine; and
(e) any other event or action (excluding compliance by such Guarantor
with the provisions hereof) that would result in the discharge by operation of
law or otherwise of such Guarantor from the performance or observance of any
obligation, covenant or agreement contained in this Purchase Money Guaranty.
The Agent and each of the Banks may deal with Company and the Designated
Borrowers, and any security held by them for the obligations of Company or any
of the Designated Borrowers (as aforesaid), in the same manner and as freely as
if this Purchase Money Guaranty did not exist and the Agent shall be entitled,
on behalf of Banks, without notice to the Guarantors, among other things, to
grant to the Company or any Designated Borrower, such extension or extensions of
time to perform any act or acts as may seem advisable to such Agent (on behalf
of the Banks) at any time and from time to time, and to permit the Company or
any Designated Borrower to incur additional indebtedness to Agent, the Banks, or
any of them, without terminating, affecting or impairing the
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validity or enforceability of this Purchase Money Guaranty or the obligations of
the Guarantors hereunder.
The Agent may proceed, either in its own name (on behalf of the Banks) or
in the name of any of the Guarantors, or otherwise, to protect and enforce any
or all of its rights under this Purchase Money Guaranty by suit in equity,
action at law or by other appropriate proceedings, or to take any action
authorized or permitted under applicable law, and shall be entitled to require
and enforce the performance of all acts and things required to be performed
hereunder by the Guarantors. Each and every remedy of the Agent and of the Banks
shall, to the extent permitted by law, be cumulative and shall be in addition to
any other remedy given hereunder or now or hereafter existing at law or in
equity.
No waiver or release shall be deemed to have been made by the Agent or any
of the Banks of any of its rights hereunder unless the same shall be in writing
and signed by all of the Banks or on behalf of the Banks by the Agent, and any
such waiver shall be a waiver or release only with respect to the specific
matter involved and shall in no way impair the rights of the Agent or any of the
Banks or the obligations of the Guarantors under this Purchase Money Guaranty in
any other respect at any other time.
At the option of the Agent, any of the Guarantors may be joined in any
action or proceeding commenced by the Agent against Company, any of the
Designated Borrowers, or any of the other parties providing collateral for any
indebtedness covered by this Purchase Money Guaranty in connection with or based
upon the Purchase Money Notes made by Company or any Designated Borrower, the
Purchase Money Loan Agreement, or any of the other Purchase Money Loan Documents
or other Purchase Money Indebtedness, or any provision thereof, and recovery may
be had against any such Guarantor in such action or proceeding or in any
independent action or proceeding against such Guarantor, without any requirement
that the Agent or the Banks first assert, prosecute or exhaust any remedy or
claim against Company, any Designated Borrower and/or any of the other parties
providing collateral for any Purchase Money Indebtedness covered by this
Purchase Money Guaranty, or any other Purchase Money Indebtedness.
As a separate, additional and continuing obligation, each of the Guarantors
unconditionally and irrevocably undertakes and agrees with Agent that, should
the amounts referred to in Section 2 of this Purchase Money Guaranty not be
recoverable from such Guarantor in its capacity as a guarantor under this
Purchase Money Guaranty for any reason whatsoever (including, without
limitation, by reason of any provision of the Purchase Money Notes, the Purchase
Money Loan Agreement, or any of the other Purchase Money Loan Documents being or
becoming void, unenforceable, or otherwise invalid under any applicable law)
then, notwithstanding any knowledge thereof by the Agent and the Banks or any of
them at any time, such Guarantor as sole, original and independent obligor, upon
demand by Agent, will make payment to Agent of all such amounts by way of a full
indemnity.
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4. Representations and Warranties. Each of the Guarantors (a) ratifies,
confirms and, by reference thereto (as fully as though such matters were
expressly set forth herein), represents and warrants with respect to itself
those matters set forth in Sections 7.1, 7.3, 7.4, 7.5, 7.7, 7.8, 7.10, 7.12,
7.14, 7.15 through 7.19, inclusive, of the Revolving Credit Agreement (as
defined in the Purchase Money Loan Agreement) which Sections are incorporated by
reference in the Purchase Money Loan Agreement pursuant to Section 5.1 thereof,
and (b) agrees not to engage in any action or inaction, the result of which
would cause a violation of any term or condition of the Purchase Money Loan
Agreement.
5. Miscellaneous.
5.1 Governing Law. This Purchase Money Guaranty has been delivered in
Michigan and shall be interpreted and the rights of the parties hereunder shall
be determined under the laws of, and be enforceable in, the State of Michigan
(without regard to its conflict of laws provisions), each of the Guarantors
hereby consenting to the jurisdiction of state and all federal courts sitting in
such state.
5.2 Severability. If any term or provision of this Purchase Money
Guaranty, or the application thereof to any circumstance, shall, to any extent,
be invalid or unenforceable, the remainder of this Purchase Money Guaranty, or
the application of such term or provision to circumstances other than those as
to which it is held invalid or unenforceable, as the case may be, shall not be
affected thereby, and each term, provision and obligation of this Purchase Money
Guaranty shall be valid and enforceable to the fullest extent permitted by law.
5.3 Notice. All notices and other communications to be made or given
pursuant to this Guaranty shall be sufficient if made or given in writing and
delivered by messenger, reputable air courier or deposited in the United States
mails, registered or certified first class mail, or sent by telecopy, receipt
confirmed, addressed as provided in the Purchase Money Loan Agreement, or at
such other addresses as directed by any of such parties to the others, as
applicable, in compliance with this paragraph.
5.4 Right of Offset. Each of the Guarantors acknowledges the rights of
the Agent and of each of the Banks, upon the occurrence and during the
continuance of an Event of Default, to offset against the Purchase Money
Indebtedness of such Guarantor to the Banks under this Purchase Money Guaranty,
any amount owing by the Agent or the Banks, or either or any of them to such
Guarantor, whether represented by any deposit of such Guarantor with the Agent
or any of the Banks or otherwise.
5.5 Release. Upon the satisfaction of the obligations of the
Guarantors hereunder, and when the Guarantors are not subject to any obligation
under the Purchase Money Loan Agreement or any of the other Purchase Money Loan
Documents, the Agent shall deliver to the Guarantors, upon written request
therefor, a written release of this Purchase Money Guaranty;
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provided however that the effectiveness of this Purchase Money Guaranty shall
continue or be reinstated, as the case may be, in the event that any payment
received or credit given by the Agent or the Banks, or any of them, is returned,
disgorged, rescinded or required to be recontributed to any party as an
avoidable preference, impermissible setoff, fraudulent conveyance, restoration
of capital or otherwise under any applicable state, federal or national law of
any jurisdiction, including without limitation laws pertaining to bankruptcy or
insolvency, and this Purchase Money Guaranty shall thereafter be enforceable
against the Guarantors as if such returned, disgorged, recontributed or
rescinded payment or credit had not been received or given by the Agent or the
Banks, and whether or not the Agent or any Bank relied upon such payment or
credit or changed its position as a consequence thereof.
5.6 Amendments; Joinder. The terms of this Purchase Money Guaranty may
not be waived, altered, modified, amended, supplemented or terminated in any
manner whatsoever except as provided herein and in accordance with the Purchase
Money Loan Agreement. In accordance with Section 5.4 of the Purchase Money Loan
Agreement, all Significant Domestic Subsidiaries of the Company created or
otherwise acquired after the Effective Date shall become obligated as Guarantors
hereunder (each as fully as though an original signatory hereto) by executing
and delivering to Agent and the Banks that certain joinder agreement in the form
attached to this Purchase Money Guaranty as Exhibit A.
5.7 Consent to Jurisdiction. Each of the Guarantors and each of the
Agent and the Banks (by accepting the benefits hereof) hereby irrevocably submit
to the non-exclusive jurisdiction of any United States Federal Court or Michigan
state court sitting in Detroit, Michigan in any action or proceeding arising out
of or relating to this Purchase Money Guaranty and each of the Guarantors and
the Agent and the Banks hereby irrevocably agree that claims in respect of such
action or proceeding may be heard and determined in any such United States
Federal Court or Michigan state court. Each of the Guarantors irrevocably
consents to the service of any and all process in any such action or proceeding
brought in any court in or of the State of Michigan by the delivery of copies of
such process to such Guarantor at its address specified on the signature page
hereto or by certified mail directed to such address or such other address as
may be designated by the Guarantor in a notice to the other parties that
complies as to delivery with the terms of Section 5.3 hereof. Nothing in this
Section shall affect the right of the Banks and the Agent to serve process in
any other manner permitted by law or limit the right of the Banks or the Agent
(or any of them) to bring any such action or proceeding against any of the
Guarantors or any of its or their property in the courts of any other
jurisdiction. Each of the Guarantors hereby irrevocably waives any objection to
the laying of venue of any such suit or proceeding in the above described
courts.
5.8 Joint and Several Obligation, etc. The obligation of each of the
Guarantors under this Purchase Money Guaranty shall be several and also joint,
each with all and also each with any one or more of the others, and may be
enforced against each severally, any two or more jointly, or some severally and
some jointly. Any one or more of the Guarantors may be released from its
obligations hereunder with or without consideration for such release and the
obligations of the other Guarantors hereunder shall be in no way affected
thereby. Agent, on behalf of Banks, may fail or
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elect not to prove a claim against any bankrupt or insolvent Guarantor and
thereafter, Agent and the Bank may, without notice to any of the Guarantors,
extend or renew any part or all of any indebtedness of any of the Guarantors,
and may permit any of the Guarantors to incur additional indebtedness, without
affecting in any manner the unconditional obligation of the remaining
Guarantors. Such action shall not affect any right of contribution among the
Guarantors.
5.9 WAIVER OF JURY TRIAL. THE BANKS (BY ACCEPTING THE BENEFITS
HEREOF), THE AGENT (BY ACCEPTING THE BENEFITS HEREOF) AND EACH OF THE GUARANTORS
AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO
A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS PURCHASE
MONEY GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY
COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTION OF
ANY OF THEM. NEITHER THE BANKS, THE AGENT, NOR ANY OF THE GUARANTORS SHALL SEEK
TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY
TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR
HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED
IN ANY RESPECT OR RELINQUISHED BY THE BANKS AND THE AGENT OR THE GUARANTORS
EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
5.10 Limitation under Applicable Insolvency Laws. Notwithstanding
anything to the contrary contained herein, it is the intention of each of the
Guarantors, Agent and the Banks that the amount of each Guarantor's obligations
hereunder (other than the Company's obligations as a Guarantor hereunder, which
shall not be subject to this Section 5.10) shall be in, but not in excess of,
the maximum amount thereof not subject to avoidance or recovery by operation of
applicable law governing bankruptcy, reorganization, arrangement, adjustment of
debts, relief of debtors, dissolution, insolvency, fraudulent transfers or
conveyances or other similar laws (collectively, "Applicable Insolvency Laws").
To that end, but only in the event and to the extent that a Guarantor's
obligations hereunder or any payment made pursuant thereto would, but for the
operation of the foregoing proviso, be subject to avoidance or recovery under
Applicable Insolvency Laws, the amount of such Guarantor's obligations hereunder
shall be limited to the largest amount which, after effect thereto, would not,
under Applicable Insolvency Laws, render such Guarantor's respective obligations
hereunder unenforceable or avoidable or subject to recovery under Applicable
Insolvency Laws. To the extent any payment actually made hereunder exceeds the
limitation contained in this Section 5.10, then the amount of such excess shall,
from and after the time of payment by the Guarantors (or any of them), be
reimbursed by the Banks upon demand by such Guarantor. The foregoing proviso is
intended solely to preserve the rights of the Agent and the Banks hereunder
against the Guarantors to the maximum extent permitted by Applicable Insolvency
Laws and neither Company nor any Guarantor nor any other Person shall have any
right or claim under this Section 5.10 that would not otherwise be available
under Applicable Insolvency Laws.
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[signature follows on succeeding page]
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IN WITNESS WHEREOF, the undersigned each of the Guarantors has executed
this Purchase Money Guaranty as of the date first above written.
WALBRO CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Its: Chief Financial Officer
and Treasurer
-------------------------------
WALBRO AUTOMOTIVE CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Its: Treasurer
-------------------------------
▇▇▇▇▇▇ MANUFACTURING COMPANY,
a Michigan corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Its: Treasurer
-------------------------------
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WALBRO ENGINE MANAGEMENT
CORPORATION, a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Its: Treasurer
-------------------------------
▇▇▇▇▇▇▇▇▇ ENGINEERED PRODUCTS,
INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Its: Treasurer
-------------------------------
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EXHIBIT A
to Purchase Money Guaranty
JOINDER AGREEMENT
THIS JOINDER AGREEMENT is dated as of ______________, ______ by
_____________________, a ______________________ corporation ("New Guarantor").
WHEREAS, pursuant to Section 5.4 of that certain Walbro Corporation
Purchase Money Loan Agreement dated as of August _____, 1997 (as amended or
otherwise modified from time to time, the "Purchase Money Loan Agreement") by
and among Walbro Corporation ("Company"), the Banks signatory thereto and
Comerica Bank, as Agent for the Banks (in such capacity, "Agent"), and pursuant
to Section 5.6 of that certain Purchase Money Guaranty dated as of July ___,
1997 (as amended or otherwise modified from time to time the "Purchase Money
Guaranty") executed and delivered by the Guarantors named therein ("Guarantors")
in favor of Agent, for and on behalf of the Banks, the New Guarantor must
execute and deliver a Joinder Agreement in accordance with the Purchase Money
Loan Agreement and the Purchase Money Guaranty.
NOW THEREFORE, as a further inducement to Banks to continue to provide
credit accommodations to Company and each of the Designated Borrowers (as
defined in the Purchase Money Loan Agreement), New Guarantor hereby covenants
and agrees as follows:
1. All capitalized terms used herein shall have the meanings assigned to
them in the Purchase Money Loan Agreement unless expressly defined to
the contrary.
2. New Guarantor hereby enters into this Joinder Agreement in order to
comply with Section 5.4 of the Purchase Money Loan Agreement and
Section 5.6 of the Purchase Money Guaranty and does so in
consideration of the Advances made or to be made from time to time
under the Purchase Money Loan Agreement (and the other Purchase Money
Loan Documents, as defined in the Purchase Money Loan Agreement), from
which New Guarantor shall derive direct and indirect benefit as with
the other Guarantors (all as set forth and on the same basis as in the
Purchase Money Guaranty).
3. New Guarantor shall be considered, and deemed to be, for all purposes
of the Purchase Money Loan Agreement, the Purchase Money Guaranty and
the other Purchase Money Loan Documents, a Guarantor under the
Purchase Money Guaranty as fully as though New Guarantor had executed
and delivered the Purchase Money Guaranty at the time originally
executed and delivered under the Purchase Money Loan Agreement and
hereby ratifies and confirms its obligations under the Purchase Money
Guaranty, all in accordance with the terms thereof.
4. No Default or Event of Default (each such term being defined in the
Purchase Money Loan Agreement) has occurred and is continuing under
the Purchase Money Loan Agreement.
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5. This Joinder Agreement shall be governed by the laws of the State of
Michigan and shall be binding upon New Guarantor and its successors
and assigns.
IN WITNESS WHEREOF, the undersigned New Guarantor has executed and
delivered this Joinder Agreement as of __________________, ________.
[NEW GUARANTOR]
By:_________________________________
Its:_________________________________
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