EXHIBIT 2(c)
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of August 14, 1995 (this
"Guaranty"), is made by ARVIN INDUSTRIES, INC., an Indiana corporation (the
"Guarantor"), in favor of NBD BANK, a Michigan banking corporation as agent
for the benefit of the Banks (the "Agent").
RECITALS
A. Space Acquisition Corporation, a Delaware corporation (the
"Borrower"), the Agent and the Banks have entered into an Amended and
Restated Credit Agreement, dated as of August 11, 1995 (as amended or
modified from time to time, the "Credit Agreement"), pursuant to which the
Banks have agreed to provide to the Borrower unsecured revolving credit
facilities in an aggregate principal amount of $39,000,000. (All capitalized
terms used herein but not defined herein shall have the meanings ascribed to
such terms in the Credit Agreement).
B. Space Industries International, Inc., a Delaware corporation
("Space Industries"), Argotyche, L.P., a Delaware limited partnership (the
"Partnership"), and the Borrower have entered an Agreement Plan of Merger,
dated as of August 14, 1995 (as amended or modified from time to time, the
"Merger Agreement"), pursuant to which Borrower has agreed to purchase all of
the issued and outstanding capital stock of Space Industries, including all
of the issued and outstanding common stock of Space Industries owned
beneficially and of record by the Guarantor (the "Arvin Stock").
C. The Borrower intends to finance a portion of the transactions
contemplated by the Merger Agreement, and the purchase of the Arvin Stock,
with funds to be provided to the Borrower by the Banks pursuant to the Credit
Agreement.
D. As a condition precedent to the effectiveness of the Banks'
obligations under the Credit Agreement, the Guarantor is required to
guarantee, among other things, the payment of certain Indebtedness of the
Borrower under the Credit Agreement constituting Commitment B Loans, as
hereinafter described.
E. The Guarantor is familiar with the Credit Agreement (which,
together with all documents, agreements, instruments and certificates
relating thereto, as amended or modified from time to time, are herein
collectively referred to as the "Operative Documents"), and the Guarantor has
determined that it is in its best interests and to its financial benefit to
enter into this Guaranty.
F. It is a condition precedent to the Guarantor's entering into
and making this Guaranty that the Borrower, the Guarantor and the Agent enter
into an Intercreditor Agreement substantially in the form attached hereto as
EXHIBIT A (the "Intercreditor Agreement").
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and as further consideration
and as an inducement to the Bank to enter into the Credit Agreement, the
Guarantor agrees with the Agent as follows:
1. GUARANTEE OF OBLIGATIONS. (a) The Guarantor hereby, as
guarantor and not as surety only, (i) guarantees to the Agent and the Banks
the prompt payment of any and all indebtedness, obligations and liabilities
which constitute principal, interest (including interest which otherwise may
cease to accrue with respect to the Borrower by operation of any insolvency
law, rule, regulation or interpretation thereof) or fees (to the extent the
Guarantor has agreed in writing to the payment of such fees) arising out of,
or charged with respect to, the Commitment B Loans made under the Operative
Documents, and (ii) agrees to make prompt payment, on demand, of any and all
costs and expenses incurred by the Agent and the Banks in connection with
enforcing the obligations of the Guarantor hereunder, including without
limitation the reasonable fees and disbursements of counsel for the Agent and
each Bank (all of the foregoing being collectively referred to as the
"Guaranteed Obligations"), PROVIDED, HOWEVER, that the amount of the
Guaranteed Obligations of the Guarantor shall be subject to the limitation
set forth in Section 3 of this Guaranty.
(b) If for any reason any amount payable under or in
connection with any Operative Document constituting any of the Guaranteed
Obligations shall not be paid in full when the same becomes due and payable,
the Guarantor undertakes, but without duplication, to pay forthwith each such
amount to the Agent and the Banks regardless of any defense, setoff or
counterclaim which the Borrower may have or assert. The Guarantor hereby
agrees not to exercise any rights of subrogation or contribution arising from
any payments made by the Guarantor in respect of the Guaranteed Obligations
of the Borrower until all amounts due and owing by the Borrower to the Agent
and the Banks under the Operative Documents have been paid in full.
(c) The date and amount of advances of principal made by the
Banks in respect of the Guaranteed Obligations and of each payment thereon
received by the Banks, and the aggregate principal amount thereof and accrued
interest thereon shown upon the books and records of the Agent or upon the
schedules attached to the Revolving Credit B Notes, and in any certificate
delivered by the Agent or any Bank to the Guarantor in respect thereof, shall
be prima facie evidence of the principal amount and accrued interest owing
and unpaid on the Guaranteed Obligations. The failure to record any such
information on such books and records or upon such schedule shall not,
however, limit or otherwise affect the obligations of the Borrower to repay
the principal amount of the Guaranteed Obligations together with accrued
interest thereon or the obligations of the Guarantor hereunder with respect
thereto.
GUARANTY AGREEMENT
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2. NATURE OF GUARANTY. This Guaranty is an absolute,
unconditional and irrevocable guaranty of payment and not a guaranty of
collection and is wholly independent of and in addition to other rights and
remedies of the Agent or any Bank and is not contingent upon the pursuit by
the Agent or any Bank of any such rights and remedies, such pursuit being
hereby waived by the Guarantor.
3. LIMITATION OF GUARANTEED OBLIGATIONS. (a) Notwithstanding
the provisions of Section 1 above, and subject to the other provisions of
this Section 3, the aggregate amount of Guaranteed Obligations hereunder
shall not in any event exceed the amounts set forth below under the
column entitled "Arvin Guaranty Amount" on the respective dates set forth
below:
ARVIN GUARANTY ARVIN GUARANTY
DATE REDUCTION AMOUNT
---------- -------------- ---------------
Effective Date $ -0- $ 22,898,566
12/31/95 1,180,793 21,717,773
03/31/96 1,202,882 20,514,891
06/30/96 1,225,360 19,289,531
09/30/96 1,248,236 18,041,295
12/31/96 1,294,012 16,747,283
03/31/97 1,317,702 15,429,581
06/30/97 1,341,811 14,087,770
09/30/97 1,366,345 12,721,425
12/31/97 1,407,053 11,314,372
03/31/98 1,432,462 9,881,910
06/30/98 1,458,318 8,423,592
09/30/98 1,484,632 6,938,960
12/31/98 1,693,381 5,245,579
03/31/99 1,720,632 3,524,947
06/30/99 1,748,364 1,776,583
09/30/99 1,776,583 - 0 -
(b) Subject to the terms of the Intercreditor Agreement, upon
any Event of Default under the Credit Agreement, during the pendency of such
Event of Default, the Arvin Guaranty Amount set forth in Section 3(a) above
shall no longer reduce pursuant to the schedule set forth above, it being
understood and agreed that the amount of the Commitment B Loans shall at no
time exceed $22,898,566, less the aggregate amount of previous Arvin Guaranty
Amount reductions under Section 3(a) of this Guaranty. Upon the cure by the
Borrower or Arvin of any such Event of Default, the Arvin Guaranty reduction
schedule under Section 3(a) of this Guaranty shall resume as if there had
been no interruption in such reduction schedule.
GUARANTY AGREEMENT
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4. WAIVERS AND OTHER AGREEMENTS. The Guarantor hereby
unconditionally (a) waives any requirement that the Agent or any Bank, in the
event of any default by the Borrower, first make demand upon, or seek to
enforce remedies against, the Borrower or any Subsidiary Guarantor before
demanding payment under or seeking to enforce this Guaranty, (b) covenants
that this Guaranty will not be discharged except by complete performance of
all obligations of the Borrower contained in the Operative Documents
constituting Guaranteed Obligations or by performance by the Guarantor of its
obligations hereunder, (c) agrees that this Guaranty shall remain in full
force and effect without regard to, and shall not be affected or impaired by,
without limitation, any invalidity, irregularity or unenforceability in whole
or in part of any of the Operative Documents, or any limitation on the
liability of the Borrower or any Subsidiary Guarantor thereunder, or any
limitation on the method or terms of payment thereunder which may now or
hereafter be caused or imposed in any manner whatsoever, (d) waives
diligence, presentment and protest with respect to, and any notice of
dishonor in the payment of, any amount at any time payable by the Borrower or
any Subsidiary Guarantor under or in connection with, any of the Operative
Documents, and further waives any requirement of notice of acceptance of, or
other formality relating to, this Guaranty, and (e) agrees that the
Guaranteed Obligations shall include any amounts paid by the Borrower or any
Subsidiary Guarantor to the Agent or any Bank relating to the Guaranteed
Obligations which may be required to be returned to the Borrower or to any
Subsidiary Guarantor or to its representative or to a trustee, custodian or
receiver for the Borrower or any Subsidiary Guarantor pursuant to any
applicable law governing insolvency, bankruptcy or the assignment of assets
for the benefit of creditors.
5. OBLIGATIONS ABSOLUTE. Subject to the provisions of Sections 6
and 20 below, the obligations, covenants, agreements and duties of the
Guarantor under this Guaranty shall not be released, affected or impaired by
any of the following whether or not undertaken with notice to or consent of
the Guarantor: (a) any assignment or transfer, in whole or in part, of any of
the Guaranteed Obligations or of any of the Operative Documents, or (b) any
waiver by the Agent or any Bank, or by any other person, of the performance
or observance by the Borrower or any Subsidiary Guarantor of any of the
agreements, covenants, terms or conditions contained in any of the Operative
Documents, or (c) any indulgence in or the extension of the time for payment
by the Borrower or any Subsidiary Guarantor of the amounts payable under or
in connection with any of the Operative Documents, or of the time for
performance by any Borrower or any Subsidiary Guarantor of any other
obligations under or arising out of any of the Operative Documents, or the
extension or renewal thereof, or (d) the modification, amendment or waiver
(whether material or otherwise) of any duty, agreement or obligation of the
Borrower or any Subsidiary Guarantor set forth in any of the Operative
Documents (the modification, amendment or waiver from time to time of any of
the Operative Documents to which the Borrower or any Subsidiary Guarantor is
a party being expressly authorized without further notice to or consent of
the Guarantor), or (e) the voluntary or involuntary liquidation, sale or
other disposition of all or substantially all of the assets of the Borrower
or any Subsidiary Guarantor or any receivership, insolvency, bankruptcy,
reorganization, or other similar proceedings, affecting the Borrower or any
Subsidiary Guarantor or the Borrower's assets or the Subsidiary Guarantor or
any Subsidiary Guarantor's assets, or (f) the release of any security, if
any, for the obligations of the Borrower or any Subsidiary Guarantor under
any of the Operative Documents, PROVIDED that the prior written consent of
the Guarantor to such release has been
GUARANTY AGREEMENT
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obtained, or (g) the merger or consolidation of the Borrower or any
Subsidiary Guarantor with any other person, or (h) the release or discharge
of the Borrower or any Subsidiary Guarantor from the performance or
observance of any agreement, covenant, term or condition contained in any of
the Operative Documents, by operation of law, or (i) the running of any
limitations period otherwise applicable, or (j) any other cause whether
similar or dissimilar to the foregoing which would release, affect or impair
the obligations, covenants, agreements or duties of the Guarantor hereunder.
6. GUARANTOR CONSENT TO CERTAIN AMENDMENTS. Notwithstanding the
provisions of Section 5 above, in no event shall any of the following
modifications, amendments or waivers to the Operative Documents be permitted
without the prior written consent of the Guarantor: (a) any increase in the
Commitment A amounts (other than as contemplated by the terms of the Credit
Agreement as in effect on the date hereof) or Commitment B amounts under the
Credit Agreement, or any reinstatement by the Borrower of any portion of the
Commitment A amounts after the Borrower has reduced Commitment A pursuant to
Section 2.2(a) of the Credit Agreement, (b) any extension of the Termination
Date under the Credit Agreement, (c) any change in the amount or timing of
the payment of any principal amount of any Commitment B Loan under the Credit
Agreement, other than prepayments which are permitted by the terms of the
Credit Agreement, (d) any amendment, modification or waiver of any term,
covenant or agreement contained in Section 5.1(a), (d)(i), (f), (g) or (h) or
Section 5.2(b), (c), (f), (g), (h), (i), (j), (k), (o), (p) or (q) of the
Credit Agreement, or any change in the definitions of any of the terms
contained in any said Sections, or any amendment, modification or waiver of
any material provision of Section 2.5 of the Credit Agreement, except as
otherwise provided under the terms of the Intercreditor Agreement; PROVIDED,
HOWEVER, that such prior written consent to an action described in this
clause (d) shall be deemed granted if the Guarantor fails to respond within
seven (7) Business Days from the date it actually receives a written request
for such consent.
7. REPRESENTATIONS AND WARRANTIES. As of the date hereof and as
of the Effective Date, the Guarantor represents and warrants that:
(a) CORPORATE EXISTENCE AND POWER. The Guarantor is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Indiana and is duly qualified to do business in each
additional jurisdiction where such qualification is necessary under
applicable law except where the failure to so qualify would not reasonably be
expected to have a material adverse effect upon the condition (financial or
otherwise) of the Guarantor. The Guarantor has all requisite corporate power
to own its properties and to carry on its business as now being conducted and
as proposed to be conducted (except where failure to possess such corporate
power would not reasonably be expected to have a material adverse effect upon
the condition (financial or otherwise) of the Guarantor), to execute and
deliver this Guaranty and to engage in the transactions contemplated by this
Guaranty.
(b) CORPORATE AUTHORITY. The execution, delivery and
performance by the Guarantor of this Guaranty are within its corporate
powers, have been duly authorized by all necessary corporate action and are
not in contravention of any law, rule or regulation, or of any judgment,
GUARANTY AGREEMENT
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decree, writ, injunction, order or award of any arbitrator, court or
governmental authority, or of the terms of the Guarantor's charter or
by-laws, or of any contract or undertaking to which the Guarantor is a party
or by which it or its property may be bound.
(c) BINDING EFFECT. This Guaranty is the legal, valid and
binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms.
(d) LITIGATION. There is no action, suit or proceeding
pending or, to the best of the Guarantor's knowledge, threatened against or
affecting the Guarantor before or by any court, governmental authority or
arbitrator, which if adversely decided would reasonably be expected to have a
material adverse effect upon the ability of the Guarantor to perform its
obligations under this Guaranty.
(e) CONSENTS, ETC. No consent, approval or authorization of
or declaration, registration or filing with any governmental authority or any
nongovernmental person or entity, including without limitation any creditor
or stockholder of the Guarantor, other than the consent of the sole
shareholder of the Guarantor, is required on the part of the Guarantor in
connection with the execution, delivery and performance of this Guaranty or
the transactions contemplated hereby or as a condition to the legality,
validity or enforceability of this Guaranty.
(f) OTHER BANK DOCUMENTS. Each of the representations and
warranties of the Guarantor set forth in each document, agreement or
instrument evidencing any Indebtedness of the Guarantor to the Agent or any
Bank, as amended from time to time, which, if untrue or incorrect would have
a material adverse effect on the ability of the Guarantor to perform its
obligations under this Guaranty, is true and correct in all material respects
and such representations and warranties are incorporated by reference herein
as if set forth in full herein.
8. COVENANTS. The Guarantor agrees that, until payment in full
of the Guaranteed Obligations, it shall, unless the Required Banks shall
otherwise consent in writing:
(a) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and
maintain its corporate existence, rights, privileges, licenses, franchises
and permits and qualify and remain qualified as a validly existing
corporation in good standing in each jurisdiction in which such qualification
is necessary under applicable law except where the failure to so qualify
would not reasonably be expected to have a material adverse effect upon the
ability of the Guarantor to perform its obligations under this Guaranty.
(b) COMPLIANCE WITH LAWS, ETC. Comply in all material
respects with all applicable laws, rules, regulations and orders of any
governmental authority, noncompliance with which would reasonably be expected
to have a material adverse effect upon the ability of the Guarantor to
perform its obligations under this Guaranty (which compliance may include,
without limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or upon its property),
except to the extent that compliance with any of the foregoing is being
contested
GUARANTY AGREEMENT
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in good faith and by appropriate legal proceedings and with respect to which
adequate financial reserves have been established on the books and records of
the Guarantor in accordance with generally accepted accounting principles.
(c) MAINTENANCE OF INSURANCE. Maintain insurance with
responsible and reputable insurance companies or associations in such amounts
and covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties similarly situated.
(d) REPORTING REQUIREMENTS. Furnish to the Agent (with a
copy to each Bank), within seven (7) Business Days after becoming aware of
the occurrence of any Event of Default described in Section 10, a statement
of a duly authorized officer of the Guarantor setting forth such details of
such Event of Default as are known to the Guarantor and the action which the
Guarantor has taken and proposes to take with respect thereto.
(e) OTHER DOCUMENTS WITH BANKS. Comply with each and every
agreement and covenant contained in any agreement, document or instrument
evidencing Indebtedness of the Guarantor to the Agent or any Bank, as
amended from time to time, the noncompliance with which would have a
material adverse effect upon the ability of the Guarantor to perform its
obligations under this Guaranty, which agreements and covenants are
incorporated by reference herein as if set forth in full herein.
9. ASSIGNMENT OF ARVIN INDEMNITY. Subject to any and all rights
and defenses which the Guarantor may be entitled to assert under the Arvin
Indemnity, the Guarantor hereby consents to the assignment by the Borrower of
the Arvin Indemnity to, and hereby agrees to give the Agent and the Banks
copies of all notices delivered pursuant to the Arvin Indemnity, and to
otherwise treat the Agent as the assignee of all right, title and interest of
the Borrower in and to the Arvin Indemnity.
10. EVENTS OF DEFAULT. The occurrence of any of the following
events or conditions shall be deemed an "Event of Default" hereunder:
(a) The Guarantor shall fail to pay when due any amount
payable under Section 1 hereof and such failure shall continue for
seven (7) Business Days following written notice thereof to the Guarantor;
or
(b) Any representation or warranty made by the Guarantor
in this Guaranty or in any other document or certificate furnished by or on
behalf of the Guarantor in connection with this Guaranty shall prove to have
been incorrect in any material respect when made; or
(c) The Guarantor shall fail to perform or observe any
other term, covenant or agreement contained in this Guaranty and such failure
shall not be cured within thirty (30) days of notice thereof to the Guarantor
from the Agent.
GUARANTY AGREEMENT
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11. REMEDIES. (a) Upon the occurrence and during the continuance
of any Event of Default, or any Event of Default under the Credit Agreement,
the Agent may, in addition to the remedies provided in the Operative
Documents, enforce its rights either by suit in equity, or by action at law,
or by other appropriate proceedings, may enforce payment under this Guaranty
and any of its other rights available at law or in equity.
(b) To the extent that it lawfully may, the Guarantor agrees
that (i) it will not at any time insist upon any benefit or advantage of any
law providing for the evaluation or appraisal of any security for the
obligations of the Borrower or any Subsidiary Guarantor under the Operative
Documents prior to any sale of such security in accordance with the Operative
Documents and applicable law; and (ii) it will not allege as a defense under
this Guaranty any stay, moratorium or extension made applicable to the
Borrower or to any Subsidiary Guarantor by any applicable Federal or state
law including without limitation Title 11 of the United States Code.
12. PAYMENTS. All amounts payable by the Guarantor under this
Guaranty shall be paid to the Agent at its main office in Detroit, Michigan,
or otherwise as the Bank may from time to time direct, in full, free and
clear of any present or future taxes, levies, imposts, duties, charges, fees
or withholdings whatsoever. If the Guarantor is compelled by law to make any
deduction or withholding, it will promptly pay to the Agent such additional
amount as will result in the net amount received by the Agent being equal to
the full amount which would have been receivable had there been no deduction
or withholding.
13. NO SETOFF, ETC. BY GUARANTOR. No setoff, counterclaim,
reduction or diminution of an obligation, or any defense of any kind or
nature (other than performance by the Guarantor of its obligations hereunder)
which the undersigned have or may have against the Agent or any Bank shall be
available hereunder to the Guarantor against the Agent or any Bank.
14. OBLIGATIONS OF AGENT AND BANKS; NO CROSS-DEFAULT.
(a) Simultaneously with giving the Borrower any written notice under the Credit
Agreement, the Agent shall deliver a copy of such notice to the Guarantor.
The Agent shall also provide the Guarantor with prompt written notice of the
Agent's acceleration of the Guaranteed Obligations or the exercise of any
other remedy under Section 6.2 of the Credit Agreement. The Guarantor may
cure any default of the Borrower under the Credit Agreement, if such default
is curable, within the period (if any) granted to the Borrower under the
Credit Agreement.
(b) The Agent and each Bank hereby expressly waive any right
to setoff or apply against the Guarantor's obligations hereunder any
deposits or any other Indebtedness owed by the Agent or any Bank to the
Guarantor.
(c) Notwithstanding any provision to the contrary which may
be contained in any document or agreement to which the Guarantor (or an
affiliate of the Guarantor) and the Agent or any Bank may, now or in the
future be, parties or any instrument made, executed and delivered
GUARANTY AGREEMENT
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by the Guarantor or any affiliate of the Guarantor, no default or Event of
Default hereunder shall constitute a default or event of default under any
other such document, agreement or instrument.
15. AMENDMENTS, ETC. This Guaranty may be amended from time to
time and any provision hereof may be waived. No such amendment or waiver of
any provision of this Guaranty nor consent to any departure by the Guarantor,
the Agent or any Bank therefrom shall in any event be effective unless the
same shall be in writing and signed by the Agent, the Required Banks and the
Guarantor, and then such amendment, waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
16. NOTICES. All notices, demands, requests, consents and other
communications hereunder shall be in writing and shall be delivered or sent
to the Guarantor at Arvin Industries, Inc., One Noblitt Plaza, P.O. Box 3000,
Columbus, Indiana 47201. Attention: Mr. Richard Smith, Vice President and
Chief Financial Officer, Facsimile Number: (812) 379-3688, with a copy to
Calspan International, Inc., 800 Connecticut Avenue, N.W., Suite 1111,
Washington, D.C. 20006, Attention: Katherine A. Snavely, Vice President -
Corporate Finance, Facsimile No. (202) 861-0321, and to the Agent at 611
Woodward Avenue, Detroit, Michigan 48226, Attention: Midwest Banking
Division, Facsimile No. (313) 225-1671, or to such other address as may be
designated by the Guarantor, the Borrower or the Agent by notice to the other
parties. All notices and other communications shall be deemed to have been
given at the time of actual delivery thereof to such address, or if sent by
certified or registered mail, postage prepaid, to such address, on the fifth
day after mailing.
17. SUBORDINATION, SUBROGATION, ETC. The Guarantor agrees that any
present or future indebtedness, obligations or liabilities of the Borrower to
the Guarantor shall be fully subordinate and junior in right and priority of
payment to any present or future indebtedness, obligations or liabilities of
the Borrower to the Agent and the Banks under the Operative Documents, and
the Guarantor hereby agrees not to exercise any rights of subrogation or
contribution arising from any payments made by the Guarantor in respect of
the Guaranteed Obligations of the Borrower until all amounts due and owing by
the Borrower to the Agent and the Banks under the Operative Documents have
been paid in full.
18. CONDUCT NO WAIVER; REMEDIES CUMULATIVE. The obligations of the
Guarantor under this Guaranty are continuing obligations and a fresh cause of
action shall arise in respect of each Event of Default hereunder. No course
of dealing on the part of the Agent or any Bank nor any delay or failure on
the part of the Agent or any Bank in exercising any right, power or privilege
hereunder shall operate as a waiver of such right, power or privilege or
otherwise prejudice the Agent or any Bank's rights and remedies hereunder;
nor shall any single or partial exercise thereof preclude any further
exercise thereof or the exercise of any other right, power or privilege. No
right or remedy conferred upon or reserved to the Agent or any Bank under
this Guaranty is intended to be exclusive of any other right or remedy, and
every right and remedy shall be cumulative and in addition to every other
right or remedy given hereunder or now or hereafter existing under any
applicable law. Every right and remedy given by this Guaranty or by
applicable law to the Agent or any Bank may be exercised from time to time
and as often as may be deemed expedient by the Agent or any Bank.
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19. RELIANCE ON AND SURVIVAL OF VARIOUS PROVISIONS. All terms,
covenants, agreements, representations and warranties of the Guarantor made
herein or in any certificate or other document delivered pursuant hereto
shall be deemed to be material and to have been relied upon by the Agent and
the Banks, notwithstanding any investigation heretofore or hereafter made by
the Agent and the Banks or on the Agent's or any Bank's behalf.
20. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon,
and inure to the benefit of, the parties hereto and their respective
permitted successors and assigns; PROVIDED, HOWEVER, that neither the Agent
nor any of the Banks may sell or assign any interest in this Guaranty except
in accordance with any sale or assignment under Section 8.6 of the Credit
Agreement and except with the prior written consent of the Guarantor, other
than any sale or assignment to any Affiliate of the Agent or any Bank, which
may be made without the consent of the Guarantor. Such restriction shall not
be binding upon any grant of a participation interest under Section 8.6(b) of
the Credit Agreement. Any sale, assignment or grant of a participation
interest shall be subject to the terms of this Guaranty and the Intercreditor
Agreement, and any sale or assignment in violation of this Section 20 shall
result in the termination of this Guaranty.
21. SURVIVAL OF AGENT OR ANY BANK'S RIGHTS AND REMEDIES.
Notwithstanding any provision of this Guaranty to the contrary, the execution
and delivery by the Guarantor of this Guaranty, and the Agent and the Banks'
acceptance thereof, shall not be deemed to (a) be a consent to the action,
whether heretofore or hereafter taken, by the Borrower or any Subsidiary
Guarantor in violation of any provision of any Operative Document, (b) be a
waiver of any provision of any Operative Document, or (c) prejudice any
rights or remedies which the Agent or any Bank may now have or have in the
future under or in connection with any Operative Document, including without
limitation, any such rights or remedies with respect to any event of default
or event causing or permitting acceleration under any Operative Document
which may heretofore have occurred and be continuing or may hereafter occur.
22. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVERS. This
Guaranty is a contract made under, and shall be governed by and construed in
accordance with, the laws of the State of Michigan applicable to contracts
made and to be performed entirely within such State and without giving effect
to choice of law principles of such State. The Guarantor further agrees that
any legal action or proceeding with respect to this Guaranty or any Operative
Document or the transactions contemplated hereby may be brought in any court
of the State of Michigan, or in any court of the United States of America
sitting in Michigan, and the Guarantor hereby submits to and accepts
generally and unconditionally the non-exclusive jurisdiction of those courts
with respect to its person and property and irrevocably consents to the
service of process in connection with any such action or proceeding by
personal delivery to the Guarantor or by the mailing thereof by registered or
certified mail, postage prepaid to the Guarantor at its address set forth in
Section 16. Nothing in this Section 22 shall affect the right of the Agent to
serve process in any other manner permitted by law or limit the right of the
Agent to bring any such action or proceeding against the Guarantor or
property in the courts of any other jurisdiction. The Guarantor hereby
irrevocably
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waives any objection to the laying of venue of any such suit or proceeding in
the above described courts.
23. DEFINITIONS; HEADINGS. Terms used but not defined herein shall
have the respective meanings ascribed thereto in the Credit Agreement. The
headings of the various subdivisions hereof are for convenience of reference
only and shall in no way modify any of its terms or provisions hereof.
24. COUNTERPART EXECUTION. This Guaranty may be signed upon 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 Guaranty shall become effective as to the Guarantor when a counterpart
hereof shall have been signed by the Guarantor.
25. INTEGRATION; SEVERABILITY; ENFORCEABILITY. This Guaranty
embodies the entire agreement and understanding among the Guarantor, the
Banks and the Agent, and supersedes all prior agreements and understandings
relating to the subject matter hereof. If any one or more provisions of this
Guaranty should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected, impaired, prejudiced or disturbed
thereby. If at any time any portion of the obligations of the Guarantor under
this Guaranty shall be determined by a court of competent jurisdiction to be
invalid, unenforceable or avoidable, the remaining portion of the obligations
of the Guarantor under this Guaranty shall not in any way be affected,
impaired, prejudiced or disturbed thereby and shall remain valid and
enforceable to the fullest extent permitted by applicable law. If at any time
all or any portion of the obligations of the Guarantor under this Guaranty
would otherwise be determined by a court of competent jurisdiction to be
invalid, unenforceable or avoidable under Section 548 of the federal
Bankruptcy Code or under a similar applicable law of any jurisdiction, then
notwithstanding any other provisions of this Guaranty to the contrary such
obligation or portion thereof of the Guarantor under this Guaranty shall be
limited to the value of any quantifiable economic benefits accruing to the
Guarantor as a result of this Guaranty, or (if applicable) such lesser amount
as a court of competent jurisdiction may determine is recoverable under this
Guaranty.
26. REINSTATEMENT. This Guaranty shall remain in full force and
effect and continue to be effective in the event any petition be filed by or
against the Borrower, any Subsidiary Guarantor or the Guarantor for
liquidation or reorganization, in the event the Borrower, any Subsidiary
Guarantor or the Guarantor becomes insolvent or makes an assignment for the
benefit of creditors or in the event a receiver or trustee be appointed for
all or any significant part of the Borrower, any Subsidiary Guarantor or the
Guarantor's assets, and shall continue to be effective or be reinstated, as
the case may be, if at any time payment and performance of the Guaranteed
Obligations, or any part thereof, is, pursuant to applicable law, rescinded
or reduced in amount, or must otherwise be restored or returned by the Agent
or any Bank, whether as a "voidable preference", "fraudulent conveyance", or
otherwise, all as though such payment or performance had not been made. In
the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the
GUARANTY AGREEMENT
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Guaranteed Obligations shall be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
27. WAIVER OF JURY TRIAL. THE AGENT, THE BANKS AND THE GUARANTOR,
AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE
TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS
GUARANTY OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS GUARANTY OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY OF THEM. NEITHER THE AGENT, ANY
BANK NOR THE GUARANTOR SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR
OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED EXCEPT
WHERE NECESSARY TO PRESERVE SUCH ACTION. THESE PROVISIONS SHALL NOT BE DEEMED
TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY THE AGENT, ANY BANK
OR THE GUARANTOR EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
28. RESERVATION OF RIGHTS. Notwithstanding any provision of this
Guaranty to the contrary, the Guarantor shall be entitled to pursue, exercise
and assert in a separate proceeding after payment in full of the Guaranteed
Obligations, all legal or equitable remedies for any breach of this Guaranty
or any of the Operative Documents by the Agent or any Bank; and no payment
hereunder by the Guarantor nor any provision contained herein, including
without limitation the unconditional nature of the Guarantor's obligation
hereunder, shall be construed as a waiver of any such rights by the
Guarantor, or as a limitation on, or with respect to, any such remedies or
the damages recoverable in such proceeding.
GUARANTY AGREEMENT
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered as of the day and year first set forth above.
ARVIN INDUSTRIES, INC.
By: /s/ Richard A. Smith
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Its: Chief Financial Officer
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Agreed and Accepted this 14th
day of August, 1995:
NBD BANK, as Agent and as a Bank
By: /s/ Edward C. Hathaway
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GUARANTY AGREEMENT
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