Exhibit 10.3
EXECUTION COPY
GUARANTY
DATED AS OF JULY 30, 2004
AMONG
THE GUARANTORS FROM TIME TO TIME PARTY HERETO
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS TERM B ADMINISTRATIVE AGENT
AND
NATIONAL BANK OF CANADA
AS CANADIAN ADMINISTRATIVE AGENT
TABLE OF CONTENTS*
PAGE
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ARTICLE I
GUARANTY
Section 1.01 The Guaranty...........................................................................2
Section 1.02 Guaranty Absolute......................................................................3
Section 1.03 Payments...............................................................................4
Section 1.04 Discharge; Reinstatement in Certain Circumstances......................................7
Section 1.05 Waiver by the Guarantors...............................................................7
Section 1.06 Agreement to Pay; Subordination of Subrogation Claims..................................9
Section 1.07 Stay of Acceleration..................................................................10
Section 1.08 No Set-Off............................................................................10
ARTICLE II
INDEMNIFICATION, SUBROGATION AND CONTRIBUTION
Section 2.01 Indemnity and Subrogation.............................................................10
Section 2.02 Contribution and Subrogation..........................................................11
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.01 Representations and Warranties; Certain Agreements....................................11
Section 3.02 Information...........................................................................12
Section 3.03 Subordination by Guarantors...........................................................12
ARTICLE IV
SET-OFF
Section 4.01 Right of Set-Off......................................................................12
ARTICLE V
MISCELLANEOUS
Section 5.01 Notices...............................................................................12
Section 5.02 Benefit of Agreement..................................................................13
Section 5.03 No Waivers; Non-Exclusive Remedies....................................................13
Section 5.04 Expenses; Indemnification.............................................................13
Section 5.05 Enforcement...........................................................................15
Section 5.06 Amendments and Waivers................................................................15
Section 5.07 Governing Law; Submission to Jurisdiction.............................................15
Section 5.08 Limitation of Law; Severability.......................................................16
Section 5.09 Counterparts; Integration; Effectiveness..............................................16
Section 5.10 WAIVER OF JURY TRIAL..................................................................16
Section 5.11 Additional Guarantors.................................................................16
Section 5.12 Termination; Release of Guarantors....................................................17
Section 5.13 Defined Terms; Conflict...............................................................17
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* The Table of Contents is not part of the
Guaranty.
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GUARANTY dated as of July 30, 2004 (as amended, restated,
modified or supplemented from time to time, this "AGREEMENT") among
the GUARANTORS from time to time party hereto and DEUTSCHE BANK TRUST
COMPANY AMERICAS, as Term B Administrative Agent and NATIONAL BANK OF
CANADA, as Canadian Administrative Agent, for the benefit of the
Finance Parties referred to herein.
THE ▇▇▇▇ ▇▇▇▇▇ GROUP (PJC) INC., a corporation formed and existing
under the laws of the Province of Quebec (together with its successors and
permitted assigns, the "PARENT BORROWER"), proposes to enter into a Credit
Agreement dated as of July 30, 2004 (as amended, restated, modified or
supplemented from time to time and including any agreement extending the
maturity of, refinancing or otherwise restructuring all or any portion of the
obligations of the Parent Borrower under such agreement or any successor
agreement, the "CREDIT AGREEMENT") among the Parent Borrower, THE ▇▇▇▇ ▇▇▇▇▇
GROUP (PJC) USA INC., a corporation formed and existing under the laws of the
State of Delaware (the "U.S. BORROWER" and, together with the Parent Borrower,
the "BORROWERS"), the banks and other financial institutions from time to time
party hereto (the "LENDERS"), ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED, as Global Transaction Coordinator, DEUTSCHE BANK SECURITIES INC.,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED and NATIONAL BANK FINANCIAL
INC., as U.S. Joint Lead Arrangers, DEUTSCHE BANK SECURITIES INC. and ▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, as U.S. Joint Bookrunners, NATIONAL
BANK FINANCIAL INC., ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED and
DEUTSCHE BANK SECURITIES INC., as Canadian Joint Lead Arrangers and as Canadian
Joint Bookrunners, NATIONAL BANK OF CANADA, as the Canadian Administrative
Agent, DEUTSCHE BANK TRUST COMPANY AMERICAS, as the Term B Administrative Agent,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED and NATIONAL BANK OF CANADA,
as U.S. Co-Syndication Agents, ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED and DEUTSCHE BANK SECURITIES INC., as Canadian Co-Syndication
Agents.
Certain Lenders and their affiliates acting as Derivatives Creditors
(as defined in the Credit Agreement) may from time to time provide forward rate
agreements, options, swaps, caps, floors and other Derivatives Agreements (as
defined in the Credit Agreement) to certain of the Credit Parties (as defined
below). The Lenders, each Issuing Lender, each Swingline Lender, the
Administrative Agents, the Co-Syndication Agents, the Global Transaction
Coordinator, the U.S. Joint Lead Arrangers, the Canadian Joint Lead Arrangers,
the Canadian Collateral Agent, the U.S. Collateral Agent, each Indemnitee and
each Derivatives Creditor and their respective successors and assigns are herein
referred to individually as a "FINANCE PARTY" and collectively as the "FINANCE
PARTIES".
To induce the Lenders to enter into the Credit Agreement and the other
Senior Finance Documents (as defined in the Credit Agreement) and the
Derivatives Creditors to enter into the Derivatives Agreements constituting
Finance Documents under the Credit Agreement (collectively with the Senior
Finance Documents and the Derivatives Agreements evidencing Derivatives
Obligations (as hereinafter defined) permitted under the Credit Agreement, the
"FINANCE DOCUMENTS"), and as a condition precedent to the obligations of the
Finance Parties thereunder, the Parent Borrower and certain of its subsidiaries
listed on the signature pages hereof (each a "GUARANTOR" and, collectively, the
"GUARANTORS") have agreed, jointly and severally, to provide a
guaranty of all
obligations of the Borrowers and the Other Credit Parties (as hereinafter
defined) under or in respect of the Finance Documents. The Borrowers and each
Guarantor are referred to herein individually as a "CREDIT PARTY" and
collectively as the "CREDIT PARTIES". As used herein, "OTHER CREDIT PARTIES"
means, with respect to any Guarantor, any and all of the Credit Parties other
than such Guarantor.
Each of the Guarantors is a Subsidiary or Affiliate of the Parent
Borrower and will receive not insubstantial benefits from the Credit Agreement,
the Derivatives Agreements and the Loans, Bankers' Acceptances, Letters of
Credit and other financial accommodations to be made, issued or entered into
thereunder. Accordingly, the Guarantors hereby agree with each of the
Administrative Agents for the benefit of the Finance Parties as follows:
ARTICLE I
GUARANTY
SECTION 1.01 THE
GUARANTY. Each Guarantor unconditionally
guarantees, jointly with the other Guarantors, and severally, as a primary
obligor and not merely as a surety: (i) the due and punctual payment of:
(A) all Senior Obligations; and
(B) all Derivatives Obligations permitted under the
Credit Agreement owed or owing to any Derivatives Creditor;
in each case whether now or hereafter due, owing or incurred in any manner,
whether actual or contingent, whether incurred solely or jointly with any other
Person and whether as principal or surety (and including all liabilities in
connection with any notes, bills or other instruments accepted by any Finance
Party in connection therewith), together in each case with all renewals,
modifications, consolidations or extensions thereof, and (ii) the due and
punctual performance of all covenants, agreements, obligations and liabilities
of the Borrowers and the Other Credit Parties under or pursuant to the Credit
Agreement and the other Finance Documents (all such monetary and other
obligations being herein collectively referred to as the "GUARANTEED
OBLIGATIONS").
Anything contained in this Agreement to the contrary notwithstanding,
the obligations of each Guarantor hereunder shall be limited to a maximum
aggregate amount equal to the greatest amount that would not render such
Guarantor's obligations hereunder subject to avoidance as a fraudulent transfer
or transaction under Section 548 of Title 11 of the United States Code or any
provisions of applicable Law (collectively, the "FRAUDULENT TRANSFER LAWS"), in
each case after giving effect to all other liabilities of such Guarantor,
contingent or otherwise, that are relevant under the Fraudulent Transfer Laws
(specifically excluding, however, any liabilities of such Guarantor (i) in
respect of intercompany indebtedness to any of the Borrowers or any of their
Affiliates to the extent that such indebtedness (A) would be discharged or would
be subject to a right of set-off in an amount equal to the amount paid by such
Guarantor hereunder or (B) has been made subject to a security interest in
favour of the Collateral Agents on behalf of the Finance Parties and (ii) under
any
guaranty of Debt subordinated in right of payment to the Guaranteed
Obligations which guaranty contains a limitation as to a maximum amount similar
to that set forth in this paragraph pursuant to which the liability of such
Guarantor hereunder is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as assets of such
Guarantor to the value (as determined under the applicable provisions of the
Fraudulent Transfer Laws) of any rights to subrogation, contribution,
reimbursement, indemnity or similar rights of such Guarantor pursuant to (i)
applicable Law or (ii) any agreement providing for an equitable allocation among
such Guarantor and other Affiliates of the Borrower of obligations arising under
guaranties by such parties (including the agreements in ARTICLE II of this
Agreement). In the event that any Guarantor's liability hereunder is limited
pursuant to this paragraph to an amount that is less than the total amount of
the Guaranteed Obligations, then it is understood and agreed that the portion of
the Guaranteed Obligations for which such Guarantor is liable hereunder shall
not be reduced by any payment made hereunder by any other Person until the
portion of the Guaranteed Obligations for which such Guarantor is not liable
hereunder have been repaid.
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SECTION 1.02 GUARANTY ABSOLUTE. Each Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
the Finance Documents, regardless of any Law now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Finance Parties
with respect thereto. The obligations of the Guarantors under this Agreement are
independent of the Guaranteed Obligations, and a separate action or actions may
be brought and prosecuted against each Guarantor to enforce this Agreement,
irrespective of whether any action is brought against any of the Borrowers or
any Other Credit Party or whether any of the Borrowers or any Other Credit Party
is joined in any such action or actions. This Agreement is an absolute and
unconditional guaranty of payment when due, and not of collection, by each
Guarantor, jointly and severally with each other Guarantor of the Guaranteed
Obligations in each and every particular. The obligations of each Guarantor
hereunder are several from those of the Other Credit Parties and are primary
obligations concerning which each Guarantor is the principal obligor. The
Finance Parties shall not be required to mitigate damages or take any action to
reduce, collect or enforce the Guaranteed Obligations.
The obligations of each Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
the existence of any claim, set-off or other right which any Guarantor may have
at any time against any Other Credit Party, any Agent or other Finance Party or
any other Person, whether in connection herewith or any unrelated transactions.
Without limiting the generality of the foregoing, each Guarantor's liability
shall extend to all amounts that constitute part of the Guaranteed Obligations
and would be owed by any Other Credit Party to any Finance Party under the
Finance Documents but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization or similar proceeding
involving any of the Borrowers or such Other Credit Party.
Without limiting the generality of the foregoing, the obligations of
each Guarantor hereunder shall not be released, discharged or otherwise affected
or impaired by:
(i) any extension, renewal, settlement, compromise,
acceleration, waiver or release in respect of any obligation of any of the
Borrowers or any Other Credit Party under the Credit Agreement, the Notes,
any Derivatives Agreement, or any other Finance Document, by operation of
Law or otherwise;
(ii) any change in the manner, place, time or terms of
payment of any Guaranteed Obligation or any other amendment, supplement or
modification to the Credit Agreement, the Notes, any Derivatives Agreement,
or any other Finance Document;
(iii) any release, non-perfection or invalidity of any
direct or indirect security for any Guaranteed Obligation, any sale,
exchange, surrender, realization upon, offset against or other action in
respect of any direct or indirect security for any Guaranteed Obligation or
any release of any Other Credit Party or any other guarantor or guarantors
of any Guaranteed Obligation;
(iv) any change in the existence, structure or ownership
of any of the Borrowers or any Other Credit Party or any insolvency,
bankruptcy, reorganization, arrangement, readjustment, composition,
liquidation or other similar proceeding affecting any of the Borrowers or
any Other Credit Party or its assets or any resulting disallowance, release
or discharge of all or any portion of any Guaranteed Obligation;
(v) the existence of any claim, set-off or other right
which any Guarantor may have at any time against any of the Borrowers, any
Other Credit Party, any Agent, any other Finance Party or any other Person,
whether in connection herewith or any unrelated transaction;
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PROVIDED that nothing herein shall prevent the assertion of any such claim
by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or
against any of the Borrowers or any Other Credit Party for any reason of
the Credit Agreement, any Note, any Derivatives Agreement, any other
Finance Document or any other agreement or instrument evidencing or
securing any Guaranteed Obligation or any provision of applicable Law
purporting to prohibit the payment by the Borrowers or any Other Credit
Party of any Guaranteed Obligation;
(vii) any failure by any Agent or any other Finance Party:
(A) to file or enforce a claim against any Other Credit Party or its estate
(in a bankruptcy or other proceeding); (B) to give notice of the existence,
creation or incurrence by any Other Credit Party of any new or additional
indebtedness or obligation under or with respect to the Guaranteed
Obligations; (C) to commence any action against any Other Credit Party; (D)
to disclose to any Guarantor any facts which such Agent or such other
Finance Party may now or hereafter know with regard to any Other Credit
Party; or (E) to proceed with due diligence in the collection, protection
or realization upon any collateral securing the Guaranteed Obligations;
(viii) any direction as to application of payment by any of
the Borrowers, any Other Credit Party or any other Person;
(ix) any subordination by any Finance Party of the
payment of any Guaranteed Obligation to the payment of any other liability
(whether matured or unmatured) of any Other Credit Party to its creditors;
(x) any act or failure to act by either of the
Administrative Agents or any other Finance Party under this Agreement or
otherwise which may deprive any Guarantor of any right to subrogation,
contribution or reimbursement against any Other Credit Party or any right
to recover full indemnity for any payments made by such Guarantor in
respect of the Guaranteed Obligations; or
(xi) any other act or omission to act or delay of any
kind by any of the Borrowers, any Other Credit Party, either of the
Administrative Agents or any Finance Party or any other Person or any other
circumstance whatsoever which might, but for the provisions of this clause,
constitute a legal or equitable discharge of any Guarantor's obligations
hereunder.
Each Guarantor has irrevocably and unconditionally delivered this
Agreement to both Administrative Agents, for the benefit of the Finance Parties,
and the failure by any Other Credit Party or any other Person to sign this
Agreement or a guaranty similar to this Agreement or otherwise shall not
discharge the obligations of any Guarantor hereunder. The irrevocable and
unconditional liability of each Guarantor hereunder applies whether it is
jointly and severally liable for the entire amount of the Guaranteed
Obligations, or only for a pro-rata portion, and without regard to any rights
(or the impairment thereof) of subrogation, contribution or reimbursement that
such Guarantor may now or hereafter have against any Other Credit Party or any
other Person. This Agreement is and shall remain fully enforceable against each
Guarantor irrespective of any defenses that any Other Credit Party may have or
assert in respect of the Guaranteed Obligations, including, without limitation,
failure of consideration, breach of warranty, payment, statute of frauds,
statute of limitations, accord and satisfaction and usury.
SECTION 1.03 PAYMENTS.
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(a) PAYMENTS TO BE MADE UPON DEFAULT. If any of the Borrowers or
any Other Credit Party fails to pay or perform any Guaranteed Obligation when
due in accordance with its terms (whether at stated maturity, by acceleration or
otherwise) or if any Default or Event of Default specified in Section 8.01(f) of
the Credit Agreement occurs with respect to any of the Borrowers, the Guarantors
shall, forthwith on demand of either of the Administrative Agents, pay the
aggregate amount of all Guaranteed Obligations to such Administrative Agent, who
shall hold such proceeds on behalf of both Administrative Agents.
(b) GENERAL PROVISIONS AS TO PAYMENTS. Each payment hereunder
shall be made without set-off, counterclaim or other deduction, in Federal or
other funds immediately available at the applicable Administrative Office and to
all Derivatives Creditors, as applicable, or to their representatives, at the
address(es) referred to in SECTION 5.01.
(c) TAXES.
(i) PAYMENTS NET OF CERTAIN TAXES. Any and all payments
by any Guarantor to or for the account of any Finance Party hereunder or
under any other Finance Document shall be made free and clear of and
without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges and withholdings whatsoever now or hereafter
imposed by any Governmental Authority, and all liabilities (including,
without limitation, interest, penalties and additions to tax) with respect
thereto, excluding any and all Excluded Taxes (all such non-Excluded Taxes
being hereinafter referred to as "TAXES"). If any Guarantor shall be
required by Law to deduct any Taxes from or in respect of any sum payable
hereunder or under any other Finance Document to any Finance Party, (A) the
sum payable shall be increased as necessary so that after making all
required deductions and withholdings (including deductions and withholdings
applicable to additional sums payable under this Section) such Finance
Party receives an amount equal to the sum it would have received had no
such deductions or withholdings been made, (B) such Guarantor shall make
such deductions and withholdings, (C) such Guarantor shall pay the full
amount deducted or withheld to the relevant taxation authority or other
authority in accordance with applicable Law and (D) such Guarantor shall
furnish to the relevant Administrative Agent, at the applicable
Administrative Office, the original or a certified copy of a receipt
evidencing payment thereof.
(ii) OTHER TAXES. In addition, the Guarantors, jointly
and severally, agree to pay any and all present or future stamp or
documentary, excise or property taxes, charges or similar levies (including
mortgage recording taxes and similar fees) which arise from any payment
made pursuant to this Agreement or any other Finance Document or from the
execution, delivery, registration or enforcement of, or otherwise with
respect to, this Agreement or any other Finance Document (collectively,
"OTHER TAXES").
(iii) INDEMNIFICATION. Each Guarantor, jointly and
severally, agrees to indemnify each Finance Party for the full amount of
Taxes and Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed or asserted by any jurisdiction on amounts payable under this
SECTION 1.03(c)), as applicable, whether or not correctly or legally
asserted, paid by such Finance Party and all liabilities (including
penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be paid within 15 days after such
Finance Party makes written demand therefor.
(d) JUDGMENT CURRENCY.
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(i) SATISFACTION OF OBLIGATIONS IN AGREEMENT CURRENCY.
The obligations of the Guarantors hereunder and under the other Finance
Documents to make payments in a specified currency (the "OBLIGATION
CURRENCY") shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any currency other
than the Obligation Currency, except to the extent that such tender or
recovery results in the effective receipt by a Finance Party of the full
amount of the Obligation Currency expressed to be payable to it hereunder
or another Finance Document.
(ii) EXCHANGE RATIO. If, for the purpose of obtaining or
enforcing judgment against any Guarantor in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency
other than the Obligation Currency (such other currency being hereinafter
referred to as the "JUDGMENT CURRENCY") an amount due in the Obligation
Currency, the conversion shall be made at the Exchange Rate determined as
of the Business Day immediately preceding the date on which the judgment is
given (such Business Day being hereinafter referred to as the "JUDGMENT
CURRENCY CONVERSION DATE").
(iii) CHANGES IN EXCHANGE RATES. If there is a change in
the rate of exchange prevailing between the Judgment Currency Conversion
Date and the date of actual payment of the amount due, the Guarantors,
jointly and severally, covenant and agree to pay, or cause to be paid, or
remit, or cause to be remitted, such additional amounts, if any (but in any
event not a lesser amount), as may be necessary to ensure that the amount
paid in the Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of
Judgment Currency stipulated in the judgment or judicial award at the rate
of exchange prevailing on the Judgment Currency Conversion Date.
(iv) For purposes of determining any rate of exchange or
currency equivalent for this Section, such amounts shall include any
premium and costs payable in connection with the purchase of the Obligation
Currency.
(e) APPLICATION OF PAYMENTS.
(i) PRIORITY OF DISTRIBUTIONS. All payments received by
the Administrative Agents hereunder shall be applied as provided in Section
8.03 of the Credit Agreement.
(ii) DISTRIBUTIONS WITH RESPECT TO LETTERS OF CREDIT.
Each of the Guarantors and the Finance Parties agrees and acknowledges that
if (after all outstanding Loans, LC Obligations and BA Reimbursement
Obligations have been paid in full) the Lenders are to receive a
distribution on account of undrawn amounts with respect to Letters of
Credit issued (or deemed issued) under the Credit Agreement, such amounts
shall be deposited in the applicable ▇▇ ▇▇▇▇ Collateral Account as cash
security for the repayment of Guaranteed Obligations owing to the Lenders
as such. Upon termination of all outstanding Letters of Credit, all of such
cash security shall be applied to the remaining Guaranteed Obligations of
the Lenders. If there remains any excess cash security, such excess cash
shall be withdrawn by the respective Collateral Agent from the respective
▇▇ ▇▇▇▇ Collateral Account and distributed in accordance with SECTION
1.03(e)(i) hereof.
(iii) DISTRIBUTIONS WITH RESPECT TO BANKERS' ACCEPTANCES.
Each of the Guarantors and the Finance Parties agrees and acknowledges that
if (after all outstanding Loans, LC Obligations and BA Reimbursement
Obligations have been paid in full) the Lenders are to receive a
distribution on account of any Bankers' Acceptance outstanding (or deemed
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outstanding) under the Credit Agreement, such amounts shall be deposited in
the applicable cash collateral account established pursuant to Section
2.06(k) of the Credit Agreement, as cash security for the repayment of
Guaranteed Obligations owing to the Lenders as such. Upon maturity of all
outstanding Bankers' Acceptances, all of such cash security shall be
applied to the remaining Guaranteed Obligations of the Lenders. If there
remains any excess cash security, such excess cash shall be withdrawn by
the Canadian Collateral Agent from the relevant cash collateral account and
distributed in accordance with SECTION 1.03(e)(i) hereof.
SECTION 1.04 DISCHARGE; REINSTATEMENT IN CERTAIN CIRCUMSTANCES.
Each Guarantor's obligations hereunder shall remain in full force and effect
until the Commitments have been terminated and the principal of and interest on
the Loans, all LC Obligations and BA Reimbursement Obligations and all other
amounts payable by any of the Borrowers and the Other Credit Parties under or
with respect to the Guaranteed Obligations have been irrevocably paid in full in
cash. No payment or payments made by any of the Borrowers, any Other Credit
Party or any other Person or received or collected by any Finance Party from any
of the Borrowers, any Other Credit Party 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 Guaranteed Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of
any Guarantor hereunder, it being understood that each Guarantor shall,
notwithstanding any such payment or payments, remain liable for the Guaranteed
Obligations until the Guaranteed Obligations are irrevocably paid in full in
cash. If at any time any payment by any of the Borrowers, any Other Credit Party
or any other Person of any Guaranteed Obligation is rescinded or must otherwise
be restored or returned upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any of the Borrowers or such Other Credit Party
or other Person or upon or as a result of the appointment of a receiver,
intervener or conservator of, or trustee or similar officer for any of the
Borrowers or such Other Credit Party or other Person or any substantial part of
its respective property or otherwise, each Guarantor's obligations hereunder
with respect to such payment shall be reinstated as though such payment had been
due but not made at such time. Each Guarantor agrees that payment or performance
of any of the Guaranteed Obligations or other acts which toll any statute of
limitations applicable to the Guaranteed Obligations shall also toll the statute
of limitations applicable to each Guarantor's liability hereunder.
SECTION 1.05 WAIVER BY THE GUARANTORS. Each Guarantor hereby
waives presentment to, demand of payment from and protest to the Other Credit
Parties of any of the Guaranteed Obligations, and also waives promptness,
diligence, notice of acceptance of its guarantee, any other notice with respect
to any of the Guaranteed Obligations and this Agreement and any requirement that
any Agent or any other Finance Party protect, secure, perfect or insure any Lien
or any property subject thereto. Each Guarantor further waives any right to
require that resort be had by any Agent or any other Finance Party to any
security held for payment of the Guaranteed Obligations or to any balance of any
deposit, account or credit on the books of the any Agent or any other Finance
Party in favor of any Credit Party or any other Person. Each Guarantor hereby
consents and agrees to each of the following to the fullest extent permitted by
Law, and agrees that such Guarantor's obligations under this Agreement shall not
be released, diminished, impaired, reduced or adversely affected by any of the
following, and waives any rights (including rights to notice) which such
Guarantor might otherwise have as a result of or in connection with any of the
following:
(i) any renewal, extension, modification, increase,
decrease, alteration or rearrangement of all or any part of the Guaranteed
Obligations or any instrument executed in connection therewith, or any
contract or understanding with any Other Credit Party, any Agent, the other
Finance Parties, or any of them, or any other Person, pertaining to the
Guaranteed Obligations;
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(ii) any adjustment, indulgence, forbearance or
compromise that might be granted or given by any Agent or any other Finance
Party to any Other Credit Party or any other Person liable on the
Guaranteed Obligations; or the failure of any Agent or any other Finance
Party to assert any claim or demand or to exercise any right or remedy
against any Other Credit Party under the provisions of any Finance Document
or otherwise; or any rescission, waiver, amendment or modification of, or
any release from any of the terms or provisions of, any Finance Document or
any other agreement, including with respect to any Other Credit Party under
this Agreement;
(iii) the insolvency, bankruptcy, arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of power of any
Other Credit Party or any other Person at any time liable for the payment
of all or part of the Guaranteed Obligations; or any dissolution of any
Other Credit Party, or any change, restructuring or termination of the
corporate structure or existence of any Other Credit Party, or any sale,
lease or transfer of any or all of the assets of any Other Credit Party, or
any change in the shareholders, partners, or members of any Other Credit
Party; or any default, failure or delay, willful or otherwise, in the
performance of the Guaranteed Obligations;
(iv) the invalidity, illegality or unenforceability of
all or any part of the Guaranteed Obligations, or any document or agreement
executed in connection with the Guaranteed Obligations, for any reason
whatsoever, including the fact that the Guaranteed Obligations, or any part
thereof, exceed the amount permitted by Law, the act of creating the
Guaranteed Obligations or any part thereof is ULTRA ▇▇▇▇▇, the officers or
representatives executing the documents or otherwise creating the
Guaranteed Obligations acted in excess of their authority, the Guaranteed
Obligations violate applicable usury laws, any Other Credit Party has valid
defenses, claims or offsets (whether at law, in equity or by agreement)
which render the Guaranteed Obligations wholly or partially uncollectible
from such Other Credit Party, the creation, performance or repayment of the
Guaranteed Obligations (or the execution, delivery and performance of any
document or instrument representing part of the Guaranteed Obligations or
executed in connection with the Guaranteed Obligations or given to secure
the repayment of the Guaranteed Obligations) is illegal, uncollectible,
legally impossible or unenforceable, or the documents or instruments
pertaining to the Guaranteed Obligations have been forged or otherwise are
irregular or not genuine or authentic;
(v) any full or partial release of the liability of any
Other Credit Party or of any other Person now or hereafter liable, whether
directly or indirectly, jointly, severally, or jointly and severally, to
pay, perform, guarantee or assure the payment of the Guaranteed Obligations
or any part thereof, it being recognized, acknowledged and agreed by each
Guarantor that such Guarantor may be required to pay the Guaranteed
Obligations in full without assistance or support of any other Person, and
such Guarantor has not been induced to enter into this Agreement on the
basis of a contemplation, belief, understanding or agreement that any party
other than the Borrowers will be liable to perform the Guaranteed
Obligations, or that the Finance Parties will look to any other party to
perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security,
collateral or guarantee, or other assurance of payment, for all or any part
of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment (including negligent, willful,
unreasonable or unjustifiable impairment) of any Letter of Credit,
collateral, property or security, at any time existing in connection with,
or assuring or securing payment of, all or any part of the Guaranteed
Obligations;
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(viii) any right that any Guarantor may now or hereafter
have under Section 3-606 of the UCC or otherwise to unimpaired collateral;
(ix) the failure of any Agent, any other Finance Party or
any other Person to exercise diligence or reasonable care in the
preservation, protection, enforcement, sale or other handling or treatment
of all or any part of such collateral, property or security;
(x) the fact that any collateral, security, security
interest or lien contemplated or intended to be given, created or granted
as security for the repayment of the Guaranteed Obligations shall not be
properly perfected or created, or shall prove to be unenforceable or
subordinate to any other security interest or lien, it being recognized and
agreed by each Guarantor that such Guarantor is not entering into this
Agreement in reliance on, or in contemplation of the benefits of, the
validity, enforceability, collectibility or value of any of the Collateral;
(xi) any payment by any Other Credit Party to either of
the Administrative Agents, any other Agent or any other Finance Party being
held to constitute a preference under Title 11 of the United States Code or
any similar Federal, foreign or state Law, or for any reason any Agent or
any other Finance Party being required to refund such payment or pay such
amount to any Other Credit Party or someone else;
(xii) any other action taken or omitted to be taken with
respect to the Guaranteed Obligations, or the security and collateral
therefor, whether or not such action or omission prejudices any Guarantor
or increases the likelihood that any Guarantor will be required to pay the
Guaranteed Obligations pursuant to the terms hereof, it being the
unambiguous and unequivocal intention of each Guarantor that such Guarantor
shall be obligated to pay the Guaranteed Obligations when due,
notwithstanding any occurrence, circumstance, event, action or omission
whatsoever, whether or not contemplated, and whether or not otherwise or
particularly described herein, except for the full and final payment and
satisfaction of the Guaranteed Obligations in cash;
(xiii) the fact that all or any of the Guaranteed
Obligations cease to exist by operation of Law, including by way of a
discharge, limitation or tolling thereof under applicable bankruptcy laws;
(xiv) the existence of any claim, set-off or other right
which any Guarantor may have at any time against any Other Credit Party,
either of the Administrative Agents, any other Finance Party or any other
Person, whether in connection herewith or any unrelated transactions;
PROVIDED that nothing herein shall prevent the assertion of any such claim
by separate suit or compulsory counterclaim; or
(xv) any other circumstance that might in any manner or
to any extent otherwise constitute a defense available to, vary the risk
of, or operate as a discharge of, such Guarantor as a matter of Law or
equity.
All waivers herein contained shall be without prejudice to the right of the
Administrative Agents at their option to proceed against any Credit Party or any
other Person, whether by separate action or by joinder.
SECTION 1.06 AGREEMENT TO PAY; SUBORDINATION OF SUBROGATION
CLAIMS. In furtherance of the foregoing and not in limitation of any other right
that either of the Administrative Agents, any other Agent or any other Finance
Party has at law or in equity against any Guarantor by
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virtue hereof, upon the failure of any Other Credit Party to pay any Guaranteed
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the relevant
Administrative Agent or such other Finance Party as designated thereby in cash
the amount of such unpaid Guaranteed Obligations. Upon payment by any Guarantor
of any sums to such Administrative Agent or any Finance Party as provided above,
all rights of such Guarantor against any Other Credit Party arising as a result
thereof by way of right of subrogation, contribution, reimbursement, indemnity
or otherwise shall (including, without limitation, in the case of any Subsidiary
Guarantor, any rights of such Guarantor arising under ARTICLE II of this
Agreement) in all respects be subordinate and junior in right of payment to the
prior indefeasible payment in full in cash of all the Guaranteed Obligations. No
failure on the part of any Other Credit Party or any other Person to make any
payments in respect of any subrogation, contribution, reimbursement, indemnity
or similar right (or any other payments required under applicable Law or
otherwise) shall in any respect limit the obligations and liabilities of any
Subsidiary Guarantor with respect to its obligations hereunder. If any amount
shall erroneously be paid to any Guarantor on account of such subrogation,
contribution, reimbursement, indemnity or similar right, such amount shall be
held in trust for the benefit of the Finance Parties and shall forthwith be
turned over to the relevant Administrative Agent in the exact form received by
such Guarantor (duly endorsed by such Guarantor to such Administrative Agent, if
required) to be credited against the payment of the Guaranteed Obligations,
whether matured or unmatured, in accordance with the terms of the Finance
Documents.
SECTION 1.07 STAY OF ACCELERATION. If acceleration of the time
for payment of any amount payable by either of the Borrowers under or with
respect to the Guaranteed Obligations is stayed upon the insolvency or
bankruptcy of such Borrower, all such amounts otherwise subject to acceleration
under the terms of the Credit Agreement, the Notes, any Derivatives Agreement or
any other agreement or instrument evidencing or securing the Guaranteed
Obligations shall nonetheless be payable by the Guarantors hereunder, jointly
and severally, forthwith on demand by either of the Administrative Agents, the
holders of at least 51% of the Derivatives Obligations or any other Finance
Party, as applicable, in the manner provided in SECTION 1.01.
SECTION 1.08 NO SET-OFF. No act or omission of any kind or at any
time on the part of any Finance Party in respect of any matter whatsoever shall
in any way affect or impair the rights of either of the Administrative Agents or
any other Finance Party to enforce any right, power or benefit under this
Agreement, and no set-off, claim, reduction or diminution of any Guaranteed
Obligation or any defense of any kind or nature which any Guarantor has or may
have against any of the Borrowers or any Finance Party shall be available
against either of the Administrative Agents or any other Finance Party in any
suit or action brought by either of the Administrative Agents or any other
Finance Party to enforce any right, power or benefit provided for by this
Agreement; PROVIDED that nothing herein shall prevent the assertion by any
Guarantor of any such claim by separate suit or compulsory counterclaim. Nothing
in this Agreement shall be construed as a waiver by any Guarantor of any rights
or claims which it may have against any Finance Party hereunder or otherwise,
but any recovery upon such rights and claims shall be had from such Finance
Party separately, it being the intent of this Agreement that each Guarantor
shall be unconditionally, absolutely and jointly and severally obligated to
perform fully all its obligations, covenants and agreements hereunder for the
benefit of each Finance Party.
ARTICLE II
INDEMNIFICATION, SUBROGATION AND CONTRIBUTION
SECTION 2.01 INDEMNITY AND SUBROGATION. In addition to all such
rights of indemnity and subrogation as the Subsidiary Guarantors may have under
applicable Law (but subject to SECTION 1.07 above), each of the Borrowers agrees
that (i) in the event a payment shall be made by any Subsidiary Guarantor under
this Agreement, each of the Borrowers shall, jointly and severally, indemnify
such
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Subsidiary Guarantor for the full amount of such payment and such Subsidiary
Guarantor shall be subrogated to the rights of the person to whom such payment
shall have been made to the extent of such payment and (ii) in the event any
assets of any Subsidiary Guarantor shall be sold pursuant to any Collateral
Document to satisfy a claim of any Finance Party, the Borrowers shall, jointly
and severally, indemnify such Subsidiary Guarantor in an amount equal to the
greater of the book value or the fair market value of the assets so sold.
SECTION 2.02 CONTRIBUTION AND SUBROGATION. Each Subsidiary
Guarantor (a "CONTRIBUTING GUARANTOR") agrees (subject to SECTION 1.06 above)
that, in the event a payment shall be made by any other Subsidiary Guarantor
under this Agreement or assets of any other Subsidiary Guarantor shall be sold
pursuant to any Collateral Document to satisfy a claim of any Finance Party and
such other Subsidiary Guarantor (the "CLAIMING GUARANTOR") shall not have been
fully indemnified by the Borrowers as provided in SECTION 2.01, the Contributing
Guarantor shall indemnify the Claiming Guarantor in an amount equal to the
amount of such payment or the greater of the book value or the fair market value
of such assets, as the case may be, in each case multiplied by a fraction the
numerator of which shall be the net worth of the Contributing Guarantor on the
date that the obligation(s) supporting such claim were incurred under this
Agreement and the denominator of which shall be the aggregate net worth of all
the Subsidiary Guarantors on such date (or, in the case of any Subsidiary
Guarantor becoming a party hereto pursuant to SECTION 5.11, the date of the
Accession Agreement executed and delivered by such Subsidiary Guarantor). Any
Contributing Guarantor making any payment to a Claiming Guarantor pursuant to
this SECTION 2.02 shall be subrogated to the rights of such Claiming Guarantor
under SECTION 2.01 to the extent of such payment.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.01 REPRESENTATIONS AND WARRANTIES; CERTAIN AGREEMENTS.
Each Guarantor hereby represents, warrants and covenants as follows:
(a) All representations and warranties contained in the Credit
Agreement that relate to such Guarantor are true and correct.
(b) Such Guarantor agrees to comply with each of the covenants
contained in the Credit Agreement that impose or purport to impose, through
agreements with the Borrowers, restrictions or obligations on such Guarantor.
(c) Such Guarantor acknowledges that any default in the due
observance or performance by such Guarantor of any covenant, condition or
agreement contained herein may constitute an Event of Default under Section 8.01
of the Credit Agreement.
(d) Such Guarantor has, independently and without reliance upon
either of the Administrative Agents or any other Finance Party and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Such Guarantor has
investigated fully the benefits and advantages which will be derived by it from
execution of this Agreement, and the Board of Directors (or persons performing
similar functions in case of a Guarantor which is not a corporation) of such
Guarantor has decided that a direct or an indirect benefit will accrue to such
Guarantor by reason of the execution of this Agreement.
(e) (i) This Agreement is not given with actual intent to hinder,
delay or defraud any Person to which such Guarantor is or will become, on or
after the date hereof, indebted; (ii) such Guarantor has received at least a
reasonably equivalent value in exchange for the giving of this
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Agreement; and (iii) such Guarantor is Solvent on the date hereof and will not
cease to be Solvent as a result of the giving of this Agreement.
SECTION 3.02 INFORMATION. Each of the Guarantors assumes all
responsibility for being and keeping itself informed of the financial condition
and assets of the Other Credit Parties and of all other circumstances bearing
upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope
and extent of the risks that such Guarantor assumes and incurs hereunder, and
agrees that none of the Administrative Agents, any other Agent or any other
Finance Party will have any duty to advise any of the Guarantors of information
known to it or any of them regarding such circumstances or risks.
SECTION 3.03 SUBORDINATION BY GUARANTORS. In addition to the
terms of subordination provided for under SECTION 1.06, each Guarantor hereby
subordinates in right of payment all indebtedness of the Other Credit Parties
owing to it, whether originally contracted with such Guarantor or acquired by
such Guarantor by assignment, transfer or otherwise, whether now owed or
hereafter arising, whether for principal, interest, fees, expenses or otherwise,
together with all renewals, extensions, increases or rearrangements thereof, to
the prior indefeasible payment in full in cash of the Guaranteed Obligations,
whether now owed or hereafter arising, whether for principal, interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), fees, expenses or otherwise, together with all
renewals, extensions, increases or rearrangements thereof.
ARTICLE IV
SET-OFF
SECTION 4.01 RIGHT OF SET-OFF. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence of any Event of Default under
the Credit Agreement, each Finance Party (and each of its Affiliates) is
authorized at any time and from time to time, without presentment, demand,
protest or other notice of any kind (all of such rights being hereby expressly
waived), to set off and to appropriate and apply any and all deposits (general
or special, time or demand, provisional or final) and any other indebtedness at
any time held or owing by such Finance Party (including, without limitation,
branches, agencies or Affiliates of such Finance Party wherever located) to or
for the credit or account of any Guarantor against obligations and liabilities
of such Guarantor then due to the Finance Parties hereunder, under the other
Finance Documents or otherwise, and any such set-off shall be deemed to have
been made immediately upon the occurrence of an Event of Default even though
such charge is made or entered on the books of such Finance Party subsequent
thereto. Each Guarantor hereby agrees that to the extent permitted by law any
Person purchasing a participation in a Loan, a Note, the LC Obligations or BA
Reimbursement Obligations, whether or not acquired pursuant to the arrangements
provided for in Section 10.06 of the Credit Agreement, may exercise all rights
of set-off with respect to its participation interest as fully as if such Person
were a Finance Party and any such set-off shall reduce the amount owed by such
Guarantor to the Finance Party.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 NOTICES. (a) Unless otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including by facsimile transmission) and mailed, faxed or delivered, to
the address, facsimile number or (subject to SUBSECTION (b) below) electronic
mail address specified for notices: (i) in the case of any Subsidiary Guarantor,
as set forth on the signature pages hereto; (ii) in the case of the Borrowers,
the Administrative Agents or any Lender, as
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specified in or pursuant to Section 10.01 of the Credit Agreement; (iii) in the
case of the Collateral Agents, as specified in the relevant Collateral Document;
(iv) in the case of any Derivatives Creditor as set forth in any applicable
Derivatives Agreement; or (v) in the case of any party, at such other address as
shall be designated by such party in a notice to both of the Administrative
Agents and each other party hereto. All such notices and other communications
shall be deemed to be given or made upon the earlier to occur of: (i) actual
receipt by the intended recipient and (ii)(A) if delivered by hand or by
courier, when signed for by the intended recipient; (B) if delivered by mail,
four Business Days after deposit in the mails, postage prepaid; (C) if delivered
by facsimile transmission, when sent and receipt has been confirmed by
telephone; and (D) if delivered by electronic mail (which form of delivery is
subject to the provisions of SUBSECTION (b) below), when delivered. Rejection or
refusal to accept, or the inability to deliver because of a changed address of
which no notice was given, shall not affect the validity of notice given in
accordance with this Section.
(b) LIMITED USE OF ELECTRONIC MAIL. Except as expressly provided
herein or as may be agreed by both of the Administrative Agents in their sole
discretion, electronic mail and internet and intranet websites may be used only
to distribute routine communications, such as financial statements and other
information, and to distribute Finance Documents for execution by the parties
thereto, to distribute executed Finance Documents in Adobe PDF format and may
not be used for any other purpose.
SECTION 5.02 BENEFIT OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; PROVIDED that none of the
Guarantors may assign or transfer any of its interests and obligations without
prior written consent of the requisite Lenders in accordance with Section 10.03
of the Credit Agreement (and any such purported assignment or transfer without
such consent shall be void); PROVIDED FURTHER that (i) the rights of each Lender
to transfer, assign or grant participations in its rights and/or obligations
hereunder shall be limited as set forth in Section 10.06 of the Credit
Agreement. Upon the assignment by any Finance Party of all or any portion of its
rights and obligations under the Credit Agreement (including all or any portion
of its Commitments and the Loans owing to it) or any other Finance Document to
any other Person, such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such transferor or assignor herein or
otherwise.
SECTION 5.03 NO WAIVERS; NON-EXCLUSIVE REMEDIES. No failure or
delay on the part of any Agent or any Finance Party to exercise, no course of
dealing with respect to, and no delay in exercising any right, power or
privilege under this Agreement or any other Finance Document or other document
or agreement contemplated hereby or thereby shall operate as a waiver thereof
nor shall any single or partial exercise of any such right, power or privilege
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies provided herein and in the
other Finance Documents are cumulative and are not exclusive of any other rights
or remedies provided by Law.
SECTION 5.04 EXPENSES; INDEMNIFICATION.
(a) EXPENSES. The Guarantors, jointly and severally, agree (i) to
pay or reimburse both of the Administrative Agents for all out-of-pocket costs
and expenses incurred in connection with the preparation, negotiation and
execution of this Agreement and any amendment, waiver, consent or other
modification of the provisions hereof (whether or not the transactions
contemplated hereby are consummated), and the consummation of the transactions
contemplated hereby, including all fees, disbursements and other charges of
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, the U.S. counsel for the
Administrative Agents, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the Canadian counsel for the
Administrative Agents, and (ii) to pay or reimburse each Agent, any
representative of one or more Derivatives Creditors (each a "REPRESENTATIVE")
and each other Finance Party for all reasonable costs and expenses incurred in
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connection with the enforcement, attempted enforcement or preservation of any
rights and remedies under this Agreement (including all such costs and expenses
incurred during any "workout" or restructuring in respect of the Guaranteed
Obligations and during any legal proceeding, including any proceeding under any
bankruptcy or insolvency proceeding), including all fees and disbursements of
counsel (including the allocated charges of internal counsel. The foregoing
costs and expenses shall include all search, filing, recording, title insurance
and appraisal charges and fees and taxes related thereto, and other
out-of-pocket expenses incurred by any Agent and the costs of independent public
accountants and other outside experts retained by or on behalf of the Agents and
the Finance Parties. The agreements in this SECTION 5.04(a) shall survive the
termination of the Commitments and Derivatives Agreements and repayment of all
Guaranteed Obligations.
(b) INDEMNIFICATION. Whether or not the transactions contemplated
hereby or by the other Finance Documents are consummated, the Guarantors,
jointly and severally, agree to indemnify, save and hold harmless each Agent,
the Representatives, each other Finance Party and their respective Affiliates,
directors, officers, trustees, employees, counsel, agents and attorneys-in-fact
and their respective successors and assigns (collectively, the "INDEMNITEES")
from and against: (i) any and all claims, demands, actions or causes of action
that are asserted against any Indemnitee by any Person (other than either of the
Administrative Agents or any Finance Party) relating directly or indirectly to a
claim, demand, action or cause of action that such Person asserts or may assert
against any Guarantor, any Affiliate of any Guarantor or any of their respective
officers or directors; (ii) any and all claims, demands, actions or causes of
action that may at any time (including at any time following repayment of the
Guaranteed Obligations and the resignation or removal of any Agent or
Representative or the replacement of any Lender or other Finance Party) be
asserted or imposed against any Indemnitee, arising out of or relating to, the
Finance Documents, any predecessor Finance Documents, the Commitments, the use
of or contemplated use of the proceeds of any Credit Extension, or the
relationship of any Guarantor, any Agent, any Representative and the Finance
Parties under this Agreement or any other Finance Document or from any actual or
alleged presence or release of Hazardous Materials on or from any property owned
or operated by any Group Company, or any Environmental Liability related in any
way to any Group Company; (iii) any administrative or investigative proceeding
by any Governmental Authority arising out of or related to a claim, demand,
action or cause of action described in CLAUSE (i) or (ii) above; and (iv) any
and all liabilities (including liabilities under indemnities), losses, costs or
expenses (including fees and disbursements of counsel) that any Indemnitee
suffers or incurs as a result of the assertion of any foregoing claim, demand,
action or cause of action or proceeding, or as a result of the preparation of
any defense in connection with any foregoing claim, demand, action or cause of
action or proceeding, in all cases, and whether or not an Indemnitee is a party
to such claim, demand, action or cause of action, or proceeding; PROVIDED that
no Indemnitee shall be entitled to indemnification for any claim to the extent
such claim is determined by a court of competent jurisdiction in a final
non-appealable judgment to have been caused by its own gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this SECTION 5.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Credit Party, its directors, shareholders or
creditors or an Indemnitee or any other Person or any Indemnitee is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. Each of the Guarantors agrees not to assert or permit any of their
respective Subsidiaries to assert any claim against any Agent, any
Representative, any Finance Party, any of their Affiliates or any of their
respective directors, officers, employees, attorneys, agents and advisers on any
theory of liability, for special, indirect, consequential or punitive damages
arising out of or otherwise relating to the Finance Documents, any of the
transactions contemplated herein or therein or the actual or proposed use of the
proceeds of the Loans or the Letters of Credit. Without prejudice to the
survival of any other agreement of the Guarantors hereunder and under the other
Finance Documents, the agreements and obligations of the Guarantors contained in
this SECTION 5.04(b) shall survive the repayment of the Loans, LC Obligations,
BA Reimbursement Obligations and other obligations under the Finance Documents
and the termination
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of the Commitments. Any amounts paid by any Indemnitee as to which such
Indemnitee has a right to reimbursement hereunder shall constitute Guaranteed
Obligations.
(c) CONTRIBUTION. If and to the extent that the obligations of any
Subsidiary Guarantor under this SECTION 5.04 are unenforceable for any reason,
each other Subsidiary Guarantor, jointly and severally, hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations as
is permissible under applicable Law.
SECTION 5.05 ENFORCEMENT. The Finance Parties agree that this
Agreement may be enforced only by (i) the action of either of the Administrative
Agents acting upon the instructions of the Required Lenders, or (ii) after the
date on which all of the Senior Obligations have been paid in full, the holders
of at least 51% of the outstanding Derivatives Obligations constituting
Guaranteed Obligations, and that no other Finance Party shall have any right
individually to seek to enforce this Agreement, it being understood and agreed
that such rights and remedies may be exercised by either of the Administrative
Agents or the holders of at least 51% of the outstanding Derivatives
Obligations, as the case may be, for the benefit of the Finance Parties upon the
terms of this Agreement.
SECTION 5.06 AMENDMENTS AND WAIVERS. Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by each Guarantor directly affected by such amendment
or waiver (it being understood that the addition or release of any Guarantor
hereunder shall not constitute an amendment or waiver affecting any Guarantor
other than the Guarantor so added or released) and either (i) at all times prior
to the time at which all Senior Obligations have been paid in full, both of the
Administrative Agents (with the consent of the Required Lenders or, to the
extent required by Section 10.03 of the Credit Agreement, all or other required
percentage of the Lenders) or (ii) at all times after the time at which the
Senior Obligations have been paid in full, the holders of at least 51% of the
outstanding Derivatives Obligations constituting Guaranteed Obligations;
PROVIDED, HOWEVER, that no such amendment, change, discharge, termination or
waiver affecting the rights and benefits of a single Class of Finance Parties
(and not all Finance Parties in a like or similar manner) shall require the
written consent of the Required Finance Parties of such Class of Finance
Parties. For the purposes of this SECTION 5.06, the term "CLASS" means each
class of Finance Parties, i.e., whether (i) the Lenders, as holders of the
Senior Obligations, or (ii) the Derivatives Creditors, as holders of the
Derivatives Obligations. For the purposes of this SECTION 5.06, the term
"REQUIRED FINANCE PARTIES" of any Class means (i) with respect to the Senior
Obligations, the Required Lenders and (ii) with respect to the Derivatives
Obligations, the holders of at least 51% of all Derivatives Obligations
constituting Guaranteed Obligations outstanding from time to time.
SECTION 5.07 GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF
NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES. Any legal action or proceeding with respect to this
Agreement may be brought in the courts of the State of
New York in
New York
County, or of the United States for the Southern District of
New York, and, by
execution and delivery of this Agreement, each of the Guarantors hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditional, the nonexclusive jurisdiction of such courts. Each of the
Guarantors irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such court and any claim that any such proceeding
brought in any such court has been brought in an inconvenient forum. Each
Guarantor hereby irrevocably appoints C.T. Corporation System its authorized
agent to accept and acknowledge service of any and all process which may be
served in any suit, action or proceeding of the nature referred to in this
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SECTION 5.07 and consents to process being served in any such suit, action or
proceeding upon C.T. Corporation System in any manner or by the mailing of a
copy thereof by registered or certified mail, postage prepaid, return receipt
requested, to such Guarantor's address referred to in SECTION 5.01. Each
Guarantor agrees that such service (i) shall be deemed in every respect
effective service of process upon it in any such suit, action or proceeding and
(ii) shall, to the fullest extent permitted by Law, be taken and held to be
valid personal service upon and personal delivery to it. Nothing in this SECTION
5.07 shall affect the right of any Finance Party to serve process in any manner
permitted by Law or limit the right of any Finance Party to bring proceedings
against any Guarantor in the courts of any jurisdiction or jurisdictions.
SECTION 5.08 LIMITATION OF LAW; SEVERABILITY.
(a) All rights, remedies and powers provided in this may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of Law, and all of the provisions of this Agreement are
intended to be subject to all applicable mandatory provisions of Law which may
be controlling and be limited to the extent necessary so that they will not
render this Agreement invalid, unenforceable in whole or in part, or not
entitled to be recorded, registered or filed under the provisions of any
applicable Law.
(b) If any provision hereof is invalid or unenforceable in any
jurisdiction, then, to the fullest extent permitted by Law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Agents and the other Finance
Parties in order to carry out the intentions of the parties hereto as nearly as
may be possible; and (ii) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provisions in any other jurisdiction.
SECTION 5.09 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement and the other Finance Documents constitute
the entire agreement and understanding among the parties hereto and supersede
any and all prior agreements and understandings, oral or written, relating to
the subject matter hereof and thereof. This Agreement shall become effective
with respect to each Guarantor when both of the Administrative Agents shall have
received counterparts hereof signed by itself and such Guarantor; provided that,
for greater certainty, this Agreement shall become effective with respect to
each of Eckerd Corporation, Eckerd Fleet, Inc., EDC Drug Stores, Inc., EDC
Licensing, Inc. ▇▇▇▇▇▇▇▇ Drug Stores, Inc., Thrift Drug Inc. and Thrift Drug
Services, Inc., notwithstanding the fact that such Credit Parties shall be
deemed to have executed the counterpart of this Agreement at 11:59 p.m. on July
31, 2004, upon consummation of the Acquisition.
SECTION 5.10 WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 5.11 ADDITIONAL GUARANTORS. It is understood and agreed
that any Subsidiary of the Parent Borrower that is required by the Credit
Agreement to execute an Accession Agreement and counterpart of this Agreement
after the date hereof shall automatically become a Subsidiary Guarantor
hereunder with the same force and effect as if originally named as a Subsidiary
Guarantor hereunder by executing an Accession Agreement and counterpart hereof
and delivering the same to both of the Administrative Agents. The execution and
delivery of any such instrument shall not require the consent of any other
Guarantor or other parts hereunder. The rights and obligations of each Guarantor
or other
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party hereunder shall remain in full force and effect notwithstanding the
addition of any new Subsidiary Guarantor as a party to this Agreement.
SECTION 5.12 TERMINATION; RELEASE OF GUARANTORS.
(a) TERMINATION. Upon the full, final and irrevocable payment and
performance of all Guaranteed Obligations, the cancellation of all outstanding
LC Obligations and BA Reimbursement Obligations and the termination of the
Commitments under the Credit Agreement and all Derivatives Agreements, this
Agreement shall terminate and have no further force or effect.
(b) RELEASE OF SUBSIDIARY GUARANTORS. In the event that all of the
capital stock of one or more of the Subsidiary Guarantors is sold or otherwise
disposed of or liquidated in compliance with the requirements of Section 7.04 or
7.05 of the Credit Agreement (or such sale, other disposition or liquidation has
been approved in writing by the Required Lenders (or all of the Lenders, if
required by Section 10.03 of the Credit Agreement) and the proceeds of such
sale, disposition or liquidation are applied in accordance with the provisions
of the Credit Agreement, to the extent applicable, such Subsidiary Guarantor or
Subsidiary Guarantors shall be released from this Agreement, and this Agreement
shall, as to each such Subsidiary Guarantor or Subsidiary Guarantors, terminate
and have no further force or effect (it being understood and agreed that the
sale of one or more Persons that own, directly or indirectly, all of the capital
stock of any Subsidiary Guarantor shall be deemed to be a sale of such
Subsidiary Guarantor for purposes of this SECTION 5.12(b)). Upon any such
release of a Subsidiary Guarantor, the Administrative Agents will, upon request
by and at the expense of such Subsidiary Guarantor, execute and deliver to such
Subsidiary Guarantor such documents as such Subsidiary Guarantor shall
reasonably request to evidence the termination of this Agreement.
SECTION 5.13 DEFINED TERMS; CONFLICT. Capitalized terms defined
in the Credit Agreement and not otherwise defined herein have, as used herein,
the respective meanings provided for therein. To the extent that there is a
conflict or inconsistency between any provision hereof, on the one hand, and any
provision of the Credit Agreement, on the other hand, the Credit Agreement shall
control.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each Guarantor has executed this Agreement as of
the day and year first above written.
GUARANTORS: THE ▇▇▇▇ ▇▇▇▇▇ GROUP (PJC) INC.
-----------
By:
----------------------------------
Name:
Title:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Francois ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PJC ARLINGTON REALTY LLC ▇▇▇▇▇▇ PHARMACY, INC.
PJC DORCHESTER REALTY LLC ECKERD CORPORATION
PJC ESSEX REALTY LLC ECKERD FLEET, INC.
PJC HAVERHILL REALTY LLC EDC DRUG STORES, INC.
PJC HYDE PARK REALTY LLC EDC LICENSING, INC.
PJC MANCHESTER REALTY LLC ▇▇▇▇▇▇▇▇ DRUG STORES, INC.
PJC MANSFIELD REALTY LLC JCG HOLDINGS (USA), INC.
PJC NEW LONDON REALTY LLC ▇▇▇▇ ▇▇▇▇▇ ACQUISITION ONE, INC.
PJC NORWICH REALTY LLC ▇▇▇▇ ▇▇▇▇▇ ACQUISITION TWO, INC.
PJC PETERBOROUGH REALTY LLC ▇▇▇▇ ▇▇▇▇▇ ACQUISITION THREE, INC.
PJC PROVIDENCE REALTY LLC MAXI DRUG NORTH, INC.
PJC REVERE REALTY LLC MAXI DRUG, INC.
MAXI GREEN INC.
MC WOONSOCKET, INC.
By: PJC SPECIAL REALTY HOLDINGS, INC., a P.J.C. DISTRIBUTION, INC.
Delaware corporation, as Sole Member P.J.C. OF VERMONT INC.
of each P.J.C. REALTY CO., INC.
PJC LEASE HOLDINGS, INC.
By: PJC OF CRANSTON, INC.
------------------------------------ PJC OF EAST PROVIDENCE, INC.
▇▇▇▇▇▇ ▇▇▇▇▇, as President PJC OF MASSACHUSETTS, INC.
PJC OF RHODE ISLAND, INC.
PJC OF WEST WARWICK, INC.
Notice address for all other Guarantors: PJC REALTY MA, INC.
50 Service Avenue PJC SPECIAL REALTY HOLDINGS, INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ THE ▇▇▇▇ ▇▇▇▇▇ GROUP (PJC) USA, INC.
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ THRIFT DRUG, INC.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ THRIFT DRUG SERVICES, INC.
By:
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, as President of each
[Signature page to
Guaranty Agreement]
-S-1-
PJC REALTY N.E. LLC
▇▇▇▇ ▇▇▇▇▇ GROUP HOLDINGS (USA), LLC
By: THE ▇▇▇▇ ▇▇▇▇▇ GROUP (PJC) USA,
INC., a Delaware corporation, its
Sole Member
By:
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, as President of each
MAXI DRUG SOUTH, L.P.
By: MAXI DRUG, INC., a Delaware
corporation, its General Partner
By:
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, as President
SERVICES SECURIVOL INC.
By:
----------------------------------
Name:
Title:
RX INFORMATION CENTRE LTD.
By:
----------------------------------
Name:
Title:
PATERSON'S PHARMACIES LIMITED
By:
----------------------------------
Name:
Title:
3090671 NOVA SCOTIA COMPANY
By:
----------------------------------
Name:
Title:
[Signature page to
Guaranty Agreement]
-S-2-
3090672 NOVA SCOTIA COMPANY
By:
----------------------------------
Name:
Title:
Agreed to and Accepted:
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
as Term B Administrative Agent
By:
-------------------------------------
Name:
Title:
Agreed to and Accepted:
NATIONAL BANK OF CANADA,
as Canadian Administrative Agent
By:
-------------------------------------
Name:
Title:
[Signature page to
Guaranty Agreement]
-S-3-