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Exhibit 10.51
CNC GUARANTEE
GUARANTEE, dated as of March 7, 2000, made by ▇▇▇▇ NATIONAL
CORPORATION, a Delaware Corporation (the "GUARANTOR"), in favor of Canadian
Imperial Bank of Commerce, as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT" for (i) the banks and other financial institutions (the
"LENDERS") from time to time parties to the Credit Agreement, dated as of
November 15, 1996 (as amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT"), among ▇▇▇▇ Vision Corporation, Things
Remembered, Inc. and Pearle, Inc. (collectively, the "BORROWERS"), the Lenders
and the Administrative Agent and (ii) the other Guaranteed parties (as defined
below).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make, and have made, extensions of the credit to the
Borrowers upon the terms and subject to the conditions set forth therein;
WHEREAS, the Borrowers are members of an affiliated group of
companies that includes the Guarantor;
WHEREAS, the proceeds of the extensions of credit have been
and will be used in part to enable the Borrowers to make valuable transfers to
the Guarantor in connection with the operation of their respective businesses;
WHEREAS, the Guarantor will derive substantial direct and
indirect benefit from the continued making of the extensions of credit under
the Credit Agreement; and
WHEREAS, it is a condition precedent to the effectiveness of
the Sixth Amendment and Waiver, dated as of March 7, 2000 (the "SIXTH
AMENDMENT"), of the Credit Agreement that the Guarantor shall have executed and
delivered this Guarantee to the Administrative Agent for the ratable benefit of
the Guaranteed Parties;
NOW, THEREFORE, in consideration of the premises and to
induce the Administrative Agent and the Lenders to enter into the Sixth
Amendment and to induce the Lenders to continue to make their respective
extensions of credit to the Borrowers thereunder, the Guarantor hereby agrees
with the Administrative Agent, for the ratable benefit of the Guaranteed
Parties, as follows:
SECTION 1. DEFINED TERMS
1.1 DEFINITIONS. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
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(b) The following terms shall have the following meanings:
"GUARANTEE": this CNC Guarantee, as the same may be amended,
supplemented or otherwise modified from time to time.
"GUARANTEED OBLIGATIONS": the collective reference to the
Obligations and all obligations and liabilities of the Guarantor which may arise
under or in connection with this Guarantee, whether on account of reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative Agent or
to the Lenders that are required to be paid by the Guarantor pursuant to the
terms of this Guarantee).
"GUARANTEED PARTIES": the collective reference to the
Administrative Agent, the Lenders (including, without limitation, the Issuing
Lender) and any Affiliate of any Lender which has entered into a Hedge Agreement
with any Borrower or any Subsidiary.
"GUARANTOR": as defined in the preamble hereto.
"HEDGE AGREEMENTS": as to any Person, all interest rate swaps,
caps or collar agreements or similar arrangements entered into by such Person
providing for protection against fluctuations in interest rates or currency
exchange rates or the exchange of nominal interest obligations, either generally
or under specific contingencies, including, without limitation, all Interest
Rate Protection Agreements and Permitted Hedging Arrangements with respect to
currency exchange rates.
"OBLIGATIONS": the collective reference to the unpaid
principal of and interest on the Revolving Credit Loans and Reimbursement
Obligations and all other obligations and liabilities of the Borrowers
(including, without limitation, interest accruing at the then applicable rate
provided in the Credit Agreement after the maturity of the Revolving Credit
Loans and Reimbursement Obligations and interest accruing at the then applicable
rate provided in the Credit Agreement after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrowers, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) to the Administrative
Agent or any Lender (or, in the case of any Hedge Agreement referred to below,
any Affiliate of any Lender), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, the Credit Agreement, this
Guarantee, the other Loan Documents, any Letter of Credit or any Hedge Agreement
entered into by any Borrower with any Lender (or, in the case of any Hedge
Agreement, any Affiliate of any Lender) or any other document made, delivered or
given in connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or to the Lenders that are required to be paid by
any Borrower pursuant to the terms of any of the foregoing agreements).
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1.2 OTHER DEFINITIONAL PROVISIONS. (a) The words "hereof,"
"herein", "hereto" and "hereunder" and words of similar import when used in
this Guarantee shall refer to this Guarantee as a whole and not to any
particular provision of this Guarantee, and Section and Schedule references
are to this Guarantee unless otherwise specified.
(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. GUARANTEE
2.1 GUARANTEE. (a) The Guarantor hereby unconditionally and
irrevocably guarantees to the Administrative Agent, for the ratable benefit of
the Guaranteed Parties and their respective successors, indorsees, transferees
and assigns, the prompt and complete payment and performance by the Borrowers
when due (whether at the stated maturity, by acceleration or otherwise) of the
Guaranteed Obligations.
(b) Anything herein or in any other Loan Document to the
contrary notwithstanding, the maximum liability of the Guarantor hereunder
shall in no event exceed the amount which can be guaranteed by the Guarantor
under applicable federal and state laws relating to the insolvency of debtors.
(c) The Guarantor agrees that the Obligations may at any time
and from time to time exceed the amount of the liability of the Guarantor
hereunder without impairing the guarantee contained in the Section 2 or
affecting the right and remedies of the Administrative Agent or any other
Guaranteed party hereunder.
(d) The guarantee contained in this Section 2 shall remain in
full force and effect until the first date on which all the Obligations and the
obligations of the Guarantor under the guarantee contained in this Section 2
shall have been satisfied by payment in full, no Letter of Credit shall be
outstanding and the Commitments shall be terminated, notwithstanding that from
time to time during the term of the Credit Agreement the Borrowers may be free
from any Obligations.
(e) No payment made by any Borrower, the Guarantor, any other
guarantor or any other Person or received or collected by the Administrative
Agent or any other Guaranteed Party from any Borrower, the Guarantor, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of the Guarantor hereunder which
shall, notwithstanding any such payment (other than any payment made by the
Guarantor in respect of the Obligations or any payment received or collected
from the Guarantor in respect of the Obligations), remain liable for the
Obligations up to the maximum liability of the Guarantor hereunder until the
first date on which the Obligations are paid in full, no Letter of Credit shall
be outstanding and the Commitments are terminated.
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2.2 NO SUBROGATION. Notwithstanding any payment made by the Guarantor
hereunder or any set-off or application of funds of the Guarantor by the
Administrative Agent or any other Guaranteed Party, the Guarantor shall not be
entitled to be subrogated to any of the rights of the Administrative Agent or
any other Guaranteed Party against any Borrower or any collateral security or
guarantee or right of offset held by the Administrative Agent or any other
Guaranteed Party for the payment of the Obligations, nor shall the Guarantor
seek or be entitled to seek any contribution or reimbursement from any Borrower
in respect of payments made by the Guarantor hereunder, until all amounts owing
to the Administrative Agent and the other Guaranteed Parties by the Borrowers
on account of the Obligations are paid in full, no Letter of Credit shall be
outstanding and the Commitments are terminated. If any amount shall be paid to
the Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by the
Guarantor in trust for the Administrative Agent and the other Guaranteed
Parties, segregated from other funds of the Guarantor, and shall, forthwith
upon receipt by the Guarantor, be turned over to the Administrative Agent in
the exact form received by the Guarantor (duly indorsed by the Guarantor to the
Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Administrative Agent may
determine.
2.3 AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS. The Guarantor
shall remain obligated hereunder notwithstanding that, without any reservation
of rights against the Guarantor and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made by the
Administrative Agent or any other Guaranteed Party may be rescinded by the
Administrative Agent or such other Guaranteed Party and any of the Obligations
continued, and the Obligations, or the liability of any other Person upon or
for any part thereof, or any collateral security or guarantee therefor or right
of offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any other Guaranteed
Party, and the Credit Agreement and the other Loan Documents and any other
documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the
Administrative Agent (or the Majority Lenders, as the case may be) may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Administrative Agent or any other Guaranteed
Party for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. Neither the Administrative Agent nor any other
Guaranteed Party shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
the guarantee contained in this Section 2 or any property subject thereto.
2.4 GUARANTEE ABSOLUTE AND UNCONDITIONAL. The Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any other Guaranteed Party upon the guarantee contained in this Section 2 or
acceptance of the guarantee contained in this Section 2; the Obligations, and
any of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Section 2; and all dealings between any Borrower
and the Guarantor, on the one hand, and the Administrative Agent and the other
Guaranteed Parties, on the other hand, likewise shall be conclusively presumed
to have been had or consummated in reliance upon the guarantee
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contained in this Section 2. The Guarantor waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Borrowers or the Guarantor with respect to the Obligations. The Guarantor
understands and agrees that the guarantee contained in this Section 2 shall be
construed as a continuing, absolute and unconditional guarantee of payment. The
Guarantor hereby waives, to the extent it may legally do so, any and all
defenses that it may have arising out of or in connection with any and all of
the following: (a) the validity or enforceability of the Credit Agreement or
any other Loan Document, any of the Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any other Guaranteed
Party, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
any Borrower against the Administrative Agent or any other Guaranteed Party,
(c) any change in the time, place, manner or place of payment, amendment, or
waiver or increase in the Obligations, (d) any change in the corporate
structure or existence of any Borrower or (e) any other circumstance
whatsoever (with or without notice to or knowledge of such Borrower or the
Guarantor) which constitutes, or might be construed to constitute, an equitable
or legal discharge of any Borrower for the Obligations, or of the Guarantor
under the guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against the Guarantor, the Administrative Agent or any other
Guaranteed Party may, but shall be under no obligation to, make a similar
demand on or otherwise pursue such rights and remedies as it may have against
any Borrower or any other Person or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and
any failure by the Administrative Agent or any other Guaranteed Party to make
any such demand, to pursue such other rights or remedies or to collect any
payments from any Borrower or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or
any release of any Borrower or any other Person or any such collateral
security, guarantee or right of offset, shall not relieve the Guarantor of any
obligation or liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Administrative Agent or any other Guaranteed Party against the Guarantor. For
the purposes hereof "demand" shall include the commencement and continuance of
any legal proceedings.
2.5 REINSTATEMENT. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Obligations is rescinded or must
otherwise be restored or returned by the Administrative Agent or any other
Guaranteed Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Borrower or the Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, any Borrower or the Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been made.
2.6 PAYMENTS. The Guarantor hereby guarantees that payments hereunder
will be paid to the Administrative Agent without set-off or counterclaim in
Dollars at the office of the Administrative Agent located at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into the Sixth
Amendment and to induce the Lenders to continue to make their respective
extensions of credit to the Borrowers under the Credit Agreement, the Guarantor
hereby represents and warrants to the Administrative Agent and each other
Guaranteed Party that:
(a) The Guarantor (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (ii) has
the corporate or other organizational power and authority, and the legal
right, to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is currently engaged,
(iii) is duly qualified as a foreign corporation or other entity and in
good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification and (iv) is in compliance with all Requirements of Law except
to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(b) The Guarantor has the corporate or other organizational power and
authority, and the legal right, to make, deliver and perform this Guarantee
and has taken all necessary corporate or other organizational action to
authorize the execution, delivery and performance of this Guarantee. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the execution, delivery, performance, validity or
enforceability of this Guarantee. This Guarantee has been duly executed and
delivered on behalf of the Guarantee. This Guarantee constitutes a legal,
valid and binding obligation of the Guarantor enforceable against the
Guarantor in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding
in equity or at law) and an implied covenant of good faith and fair
dealing.
(c) The execution, delivery and performance of this Guarantee will not
violate any Requirement of Law or Contractual Obligation of the Guarantor
or of any of its Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of its or their respective
properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation (other than pursuant to this Guarantee).
(d) No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Guarantor, threatened by or against the Guarantor of any of its
Subsidiaries or against any of its or their respective properties or
revenues (x) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (y) which could reasonably
be expected to have a Material Adverse Effect.
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SECTION 4. COVENANTS
The Guarantor covenants and agrees with the Administrative Agent and the
other Guaranteed Parties that, from and after the date of this Guarantee until
the Guaranteed Obligations shall have been paid in full, no Letter of Credit
shall be outstanding and the Commitments shall have terminated:
4.1 COVENANTS IN CREDIT AGREEMENT. The Guarantor shall take, or shall
refrain from taking, as the case may be, each action that is necessary to be
taken or not taken, as the case may be, so that no Default or Event of Default
is caused by the failure to take such action or to refrain from taking such
action by the Guarantor or any of its Subsidiaries.
SECTION 5. THE ADMINISTRATIVE AGENT
5.1 AUTHORITY OF ADMINISTRATIVE AGENT. The Guarantor acknowledges that
the rights and responsibilities of the Administrative Agent under this
Guarantee with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee or any amendment, supplement or
other modification of this Guarantee shall, as between the Administrative Agent
and the Guaranteed Parties, be governed by the Credit Agreement and by such
other agreements with respect thereto as may exist from time to time among
them, but, as between the Administrative Agent and the Guarantor, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Guaranteed Parties with full and valid authority so to act or refrain from
acting, and the Guarantor shall be under any obligation, or entitlement, to
make any inquiry respecting such authority.
SECTION 6. MISCELLANEOUS
6.1 AMENDMENTS IN WRITING. None of the terms or provisions of this
Guarantee may be waived, amended, supplemented or otherwise modified except by
a written instrument executed by the Guarantor and the Administrative Agent,
PROVIDED that any provision of this Guarantee imposing obligations on the
Guarantor may be waived by the Administrative Agent in a written instrument
executed by the Administrative Agent.
6.2 NOTICES. All notices, requests and demands to or upon the
Administrative Agent or the Guarantor hereunder shall be effected in the manner
provided for in subsection 11.2 of the Credit Agreement; PROVIDED that any such
notice, request or demand to or upon the Guarantor shall be addressed to the
Guarantor at:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
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with a copy to:
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
6.3 NO WAIVER BY COURSE OF CONDUCT: CUMULATIVE REMEDIES: Neither the
Administrative Agent nor any other Guaranteed Party shall by any act (except by
a written instrument pursuant to Section 6.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of the Administrative Agent or any other
Guaranteed Party, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent or
any other Guaranteed Party of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Administrative
Agent or such other Guaranteed Party would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
6.4 ENFORCEMENT EXPENSES: INDEMNIFICATION. (a) The Guarantor agrees to
pay or reimburse each Guaranteed Party and Administrative Agent for all their
respective costs and expenses incurred in collecting against the Guarantor under
the guarantee contained in Section 2 or otherwise enforcing any rights under
this Guarantee, including, without limitation, the fees and disbursements of
counsel (including the allocated fees and expenses of in-house counsel) to each
Guaranteed Party and of counsel to the Administrative Agent.
(b) The Guarantor agrees to pay, and to save the Administrative Agent
and the Guaranteed Parties harmless from, any and all liabilities with respect
to, or resulting from any delay in paying, and all stamp, excise, sales or
other taxes which may be payable or determined to be payable in connection with
any of the transactions contemplated by this Guarantee.
(c) The Guarantor agrees to pay, and to save the Administrative Agent
and the Guaranteed Parties harmless from, any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Guarantee
(collectively, the "INDEMNIFIED LIABILITIES") to the extent the Borrowers would
be required to do so pursuant to Section 11.5 of the Credit Agreement.
(d) The agreements in this Section 6.4 shall survive repayment of the
Guaranteed Obligations and all other amounts payable under the Credit Agreement
and the other Loan Documents.
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6.5 SUCCESSORS AND ASSIGNS. This Guarantee shall be binding upon the
successors and assigns of the Guarantor and shall inure to the benefit of the
Administrative Agent and the Guaranteed Parties and their successors and
assigns; PROVIDED that the Guarantor may assign, transfer or delegate any of its
rights or obligations under this Guarantee without the prior written consent of
the Administrative Agent.
6.6 SET-OFF. The Guarantor hereby irrevocably authorizes the
Administrative Agent and each other Guaranteed Party at any time and from time
to time without notice to the Guarantor or any Borrower, any such notice being
expressly waived by the Guarantor and by the Borrowers, upon any amount
remaining unpaid after it becomes due and payable by the Guarantor hereunder to
set-off and appropriate and apply against any such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by the Administrative Agent or such other Guaranteed Party to or
for the credit or the account of the Guarantor, or any part thereof in such
amounts as the Administrative Agent or such other Guaranteed Party may elect.
The Administrative Agent and each other Guaranteed Party shall notify the
Guarantor promptly of any such set-off and the application made by the
Administrative Agent or such other Guaranteed Party of the proceeds thereof;
PROVIDED that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the Administrative Agent and each
other Guaranteed Party under this Section 6.6 are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which the
Administrative Agent or such other Guaranteed Party may have.
6.7 SEVERABILITY. Any provision of this Guarantee which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
6.8 SECTION HEADINGS. The Section headings used in this Guarantee are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
6.9 INTEGRATION. This Guarantee and the other Loan Documents represent
the agreement of the Guarantor, the Administrative Agent and the other
Guaranteed Parties with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any other Guaranteed Party relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
6.10 GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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6.11 SUBMISSION TO JURISDICTION: WAIVERS. The Guarantor hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Guarantee, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Guarantor at its
address referred to in Section 6.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to ▇▇▇ in
any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section any exemplary, punitive or consequential damages.
6.12 ACKNOWLEDGEMENTS. The Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Guarantee;
(b) neither the Administrative Agent nor any other Guaranteed Party has
any fiduciary relationship with or duty to the Guarantor arising out of or in
connection with this Guarantee or any of the other Loan Documents, and the
relationship between the Guarantor, on the one hand, and the Administrative
Agent and the Guaranteed Parties, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Guaranteed Parties or among the Guarantor and the Guaranteed Parties.
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6.13 WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS GUARANTEE OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
6.14 RELEASES. At such time as the Revolving Credit Loans, the
Reimbursement Obligations and the other Guaranteed Obligations shall have been
paid in full, the Commitments have been terminated and no Letters of Credit
shall be outstanding, this Guarantee and all obligations (other than those
expressly stated to survive such termination) of the Administrative Agent and
the Guarantor hereunder shall terminate, all without delivery of any
instrument or performance of any act by any party. At the request and sole
expense of the Guarantor following any such termination, the Administrative
Agent shall execute and deliver to the Guarantor such documents as the
Guarantor shall reasonable request to evidence such termination.
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IN WITNESS WHEREOF, the undersigned has caused this
Guarantee to be duly executed and delivered as of the date first above written.
▇▇▇▇ NATIONAL CORPORATION
By: /s/ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President & Treasurer