1
EXHIBIT 10.8
EXECUTION COPY
GUARANTEE AGREEMENT dated as of September 30, 1997,
as amended and restated as of May 31, 2000, among HUNTSMAN
PACKAGING CORPORATION, a Utah corporation (the "Borrower"),
each of the subsidiaries of the Borrower listed on Schedule I
hereto (each such subsidiary individually, a "Subsidiary
Guarantor" and collectively, the "Subsidiary Guarantors"; the
Borrower and the Subsidiary Guarantors, individually a
"Guarantor" and, collectively, the "Guarantors") of HUNTSMAN
PACKAGING CORPORATION, a Utah corporation (the "Borrower"),
and BANKERS TRUST COMPANY, a New York banking corporation, as
administrative agent (the "Administrative Agent") for the
Lenders under the Credit Agreement referred to below.
Reference is made to the Credit Agreement dated as of September 30,
1997, as amended and restated as of May 31, 2000 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, Aspen Industrial, S.A. de C.V., a Mexico corporation (the "Mexico
Borrower"), the lenders from time to time party thereto (the "Lenders") and the
Administrative Agent. Capitalized terms used herein and not defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
The Subsidiary Guarantors and the Administrative Agent have entered
into a Guarantee Agreement dated as of September 30, 1997, and the parties
hereto are entering into this Agreement to amend and restate such Guarantee
Agreement in its entirety in the form hereof.
The Lenders have agreed to make Loans to the Borrower and the Mexico
Borrower, and the Issuing Bank has agreed to issue Letters of Credit for the
account of the Borrower, pursuant to, and upon the terms and subject to the
conditions specified in, the Credit Agreement. The Borrower and the Mexico
Borrower have requested that the Subsidiary Guarantors guarantee the Obligations
(as defined
2
below) by entering into this Agreement. Each of the Subsidiary Guarantors is a
Subsidiary of the Borrower and an affiliate of the Mexico Borrower and
acknowledges that it will derive substantial benefit from the making of the
Loans by the Lenders, and the issuance of the Letters of Credit by the Issuing
Bank. The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit are conditioned on, among other things, the execution
and delivery by the Guarantors of a Guarantee Agreement in the form hereof. As
consideration therefor and in order to induce the Lenders to make Loans and the
Issuing Bank to issue Letters of Credit, the Guarantors are willing to execute
this Agreement.
Accordingly, the parties hereto agree as follows:
3
SECTION 1. Guarantee. Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, (a) the due and punctual payment of (i) the principal of and
premium, if any, and 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) on the Loans,
when and as due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise, (ii) each payment required to be made by the
Borrower under the Credit Agreement in respect of any Letter of Credit, when and
as due, including payments in respect of reimbursement of disbursements,
interest thereon and obligations to provide cash collateral and (iii) all other
monetary obligations, including fees, costs, expenses and indemnities, whether
primary, secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Loan Parties to the Secured Parties under
the Credit Agreement and the other Loan Documents, (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Loan Parties under or pursuant to the Credit Agreement and the other Loan
Documents, (c) the due and punctual payment and performance of all obligations
of the Borrower and the Mexico Borrower, monetary or otherwise, under each
Hedging Agreement entered into with any counterparty that was a Lender (or an
Affiliate thereof) at the time such Hedging Agreement was entered into and (d)
the due and punctual payment of all monetary obligations of the Borrower (but
not in excess of $10,000,000 in the aggregate) under any domestic overdraft
facilities entered into by the Borrower (all the monetary and other obligations
referred to in the preceding clauses (a) through (d) being collectively called
the "Obligations"). Each Guarantor further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation.
The Borrower is entering into this Agreement as a Guarantor in order to
Guarantee the Obligations of the
4
Mexico Borrower, and its obligations under the foregoing paragraph shall be
construed accordingly.
Anything contained in this Agreement to the contrary notwithstanding,
the obligations of each Subsidiary Guarantor hereunder shall be limited to a
maximum aggregate amount equal to the greatest amount that would not render such
Subsidiary Guarantor's obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title 11 of the United
States Code or any provisions of applicable state law (collectively, the
"Fraudulent Transfer Laws"), in each case after giving effect to all other
liabilities of such Subsidiary Guarantor, contingent or otherwise, that are
relevant under the Fraudulent Transfer Laws (specifically excluding, however,
any liabilities of such Subsidiary Guarantor (a) in respect of intercompany
indebtedness to the Borrower or Affiliates of the Borrower to the extent that
such indebtedness would be discharged in an amount equal to the amount paid by
such Subsidiary Guarantor hereunder and (b) under any Guarantee of senior
unsecured indebtedness or Indebtedness subordinated in right of payment to the
Obligations which Guarantee contains a limitation as to maximum amount similar
to that set forth in this paragraph, pursuant to which the liability of such
Subsidiary Guarantor hereunder is included in the liabilities taken into account
in determining such maximum amount) and after giving effect as assets 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 Subsidiary Guarantor pursuant to (i) applicable law or
(ii) any agreement providing for an equitable allocation among such Subsidiary
Guarantor and other Affiliates of the Borrower of obligations arising under
Guarantees by such parties (including the Indemnity, Subrogation and
Contribution Agreement).
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Guarantor waives presentment to, demand of payment from and
protest to the Borrower or the Mexico Borrower of any of the Obligations, and
also waives notice of acceptance of its guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable law, the obligations
of each
5
Guarantor hereunder shall not be affected by (a) the failure of the Collateral
Agent or any other Secured Party to assert any claim or demand or to enforce or
exercise any right or remedy against the Borrower, the Mexico Borrower or any
other Subsidiary Guarantor under the provisions of the Credit Agreement, any
other Loan Document or otherwise, (b) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of this
Agreement, any other Loan Document, any Guarantee or any other agreement,
including with respect to any other Subsidiary Guarantor under this Agreement or
(c) the failure to perfect any security interest in, or the release of, any of
the security held by or on behalf of the Collateral Agent or any other Secured
Party.
SECTION 3. Security. Each of the Guarantors authorizes the Collateral
Agent and each of the other Secured Parties to (a) take and hold security
pursuant to the Security Agreement for the payment of this Guarantee and the
Obligations and exchange, enforce, waive and release any such security, (b)
apply such security and direct the order or manner of sale thereof as they in
their sole discretion may determine and (c) release or substitute any one or
more endorsees, other Subsidiary Guarantors or other obligors.
SECTION 4. Guarantee of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Collateral Agent or
any other Secured Party to any of the security held for payment of the
Obligations or to any balance of any deposit account or credit on the books of
the Collateral Agent or any other Secured Party in favor of the Borrower, the
Mexico Borrower or any other Person.
SECTION 5. No Discharge or Diminishment of Guarantee. The obligations
of each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity,
6
illegality or unenforceability of the Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Guarantor hereunder
shall not be discharged or impaired or otherwise affected by the failure of the
Administrative Agent or any other Secured Party to assert any claim or demand or
to enforce any remedy under the Credit Agreement, any other Loan Document or any
other agreement, by any waiver or modification of any provision of any thereof,
by any default, failure or delay, wilful or otherwise, in the performance of the
Obligations, or by any other act or omission that may or might in any manner or
to any extent vary the risk of any Guarantor or that would otherwise operate as
a discharge of any Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Obligations).
SECTION 6. Defenses of Borrower or Mexico Borrower Waived. To the
fullest extent permitted by applicable law, each of the Guarantors waives any
defense based on or arising out of any defense of the Borrower or the Mexico
Borrower or the unenforceability of the Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the Borrower or the
Mexico Borrower, other than the final and indefeasible payment in full in cash
of the Obligations. The Collateral Agent and the other Secured Parties may, at
their election, foreclose on any security held by one or more of them by one or
more judicial or nonjudicial sales, accept an assignment of any such security in
lieu of foreclosure, compromise or adjust any part of the Obligations, make any
other accommodation with the Borrower, the Mexico Borrower or any other
guarantor or exercise any other right or remedy available to them against the
Borrower, the Mexico Borrower or any other guarantor, without affecting or
impairing in any way the liability of any Subsidiary Guarantor hereunder except
to the extent the Obligations have been fully, finally and indefeasibly paid in
cash. Pursuant to applicable law, each of the Guarantors waives any defense
arising out of any such election even though such election operates, pursuant to
applicable law, to impair or to extinguish any right of reimbursement or
subrogation or other right or remedy of such Guarantor against the Borrower, the
Mexico Borrower or any other Guarantor or guarantor, as the case may be, or any
security.
7
SECTION 7. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Administrative Agent
or any other Secured Party has at law or in equity against any Guarantor by
virtue hereof, upon the failure of the Borrower, the Mexico Borrower or any
other Loan Party to pay any 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 Administrative Agent or such other Secured Party as designated thereby in
same day funds the amount of such unpaid Obligations. Upon payment by any
Guarantor of any sums to the Administrative Agent or any Secured Party as
provided above, all rights of such Guarantor against the Borrower or Mexico
Borrower arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment in
full in same day funds of all the Obligations. In addition, any indebtedness of
the Borrower or Mexico Borrower now or hereafter held by any Subsidiary
Guarantor is hereby subordinated in right of payment to the prior payment in
full of the Obligations. If any amount shall erroneously be paid to any
Guarantor on account of (i) such subrogation, contribution, reimbursement,
indemnity or similar right or (ii) any such indebtedness of the Borrower or
Mexico Borrower, such amount shall be held in trust for the benefit of the
Secured Parties and shall forthwith be paid to the Administrative Agent to be
credited against the payment of the Obligations, whether matured or unmatured,
in accordance with the terms of the Loan Documents.
SECTION 8. Information. Each of the Guarantors assumes all
responsibility for being and keeping itself informed of the Borrower's and the
Mexico Borrower's financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Obligations and the nature, scope and
extent of the risks that such Guarantor assumes and incurs hereunder, and agrees
that none of the Administrative Agent or the other Secured Parties will have any
duty to advise any of the Guarantors of information known to it or any of them
regarding such circumstances or risks.
8
SECTION 9. Representations and Warranties. Each of the Guarantors
represents and warrants as to itself that all representations and warranties
relating to it contained in the Credit Agreement are true and correct in all
material respects.
SECTION 10. Termination. The Guarantees made hereunder (a) shall
terminate when all the Obligations have been indefeasibly paid in full and the
Lenders have no further commitment to lend under the Credit Agreement, the LC
Exposure has been reduced to zero and the Issuing Bank has no further obligation
to issue Letters of Credit under the Credit Agreement and (b) shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any Obligation is rescinded or must otherwise be restored
by any Secured Party or any Guarantor upon the bankruptcy or reorganization of
the Borrower, the Mexico Borrower, any Guarantor or otherwise.
SECTION 11. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall become effective
as to any Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Administrative Agent, and a
counterpart hereof shall have been executed on behalf of the Administrative
Agent, and thereafter shall be binding upon such Guarantor and the
Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of such Guarantor, the Administrative Agent and the other
Secured Parties, and their respective successors and assigns, except that no
Guarantor shall have the right to assign its rights or obligations hereunder or
any interest herein (and any such attempted assignment shall be void). If all of
the capital stock of a Subsidiary Guarantor is sold, transferred or otherwise
disposed of pursuant to a transaction permitted by Section 6.06 of the Credit
Agreement, such Subsidiary Guarantor shall be released from
9
its obligations under this Agreement without further action. This Agreement
shall be construed as a separate agreement with respect to each Subsidiary
Guarantor and may be amended, modified, supplemented, waived or released with
respect to any Guarantor without the approval of any other Subsidiary Guarantor
and without affecting the obligations of any other Guarantor hereunder.
SECTION 12. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent in exercising any power or right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent
hereunder and of the other Secured Parties under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Guarantor therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on any Guarantor in any case shall entitle such
Guarantor to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Guarantors with respect to which such waiver, amendment or modification
relates and the Administrative Agent, with the prior written consent of the
Required Lenders (except as otherwise provided in the Credit Agreement).
SECTION 12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 9.01 of the Credit Agreement. All
communications
10
and notices hereunder to each Subsidiary Guarantor shall be given to it at its
address set forth in Schedule I.
SECTION 15. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Administrative Agent and the other Secured Parties
and shall survive the making by the Lenders of the Loans and the issuance of the
Letters of Credit by the Issuing Bank regardless of any investigation made by
the Secured Parties or on their behalf, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
other fee or amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or the LC Exposure does not equal zero and as long as the
Commitments have not been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 16. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective as
provided in Section 11. Delivery of an executed signature page to this Agreement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Agreement.
11
SECTION 17. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 18. Jurisdiction; Consent to Service of Process. (a) Each
Subsidiary Guarantor hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any other Secured Party may otherwise have to bring any
action or proceeding relating to this Agreement or the other Loan Documents
against any Subsidiary Guarantor or its properties in the courts of any
jurisdiction.
(b) Each Subsidiary Guarantor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the other
Loan Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 14. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
12
SECTION 19. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 19.
SECTION 20. Additional Subsidiary Guarantors. Pursuant to Section 5.12
of the Credit Agreement, each Subsidiary Loan Party that was not in existence on
the date of the Credit Agreement is required to enter into this Agreement as a
Subsidiary Guarantor upon becoming a Subsidiary Loan Party. Upon execution and
delivery after the date hereof by the Administrative Agent and such a Subsidiary
of an instrument in the form of Annex 1, such Subsidiary shall become a
Subsidiary Guarantor hereunder with the same force and effect as if originally
named as a Subsidiary Guarantor herein. The execution and delivery of any
instrument adding an additional Subsidiary Guarantor as a party to this
Agreement shall not require the consent of any other Subsidiary Guarantor
hereunder. The rights and obligations of each Subsidiary Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any new
Subsidiary Guarantor as a party to this Agreement.
SECTION 21. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Secured Party is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other Indebtedness at any time owing by such Secured Party to
or for the credit or the account of any Guarantor against any or all the
obligations of such Guarantor now or hereafter existing under this Agreement and
the other Loan Documents held by such Secured Party, irrespective of whether or
not
13
such Secured Party shall have made any demand under this Agreement or any other
Loan Document and although such obligations may be unmatured. The rights of each
14
14
Secured Party under this Section 21 are in addition to other rights and remedies
(including other rights of setoff) which such Secured Party may have.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
HUNTSMAN PACKAGING
CORPORATION,
by /s/ SCOTT K. SORENSEN
-----------------------
Name: Scott K. Sorensen
Title: Executive Vice
President and CIO
EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE I HERETO,
by /s/ SCOTT K. SORENSEN
-----------------------
Name: Scott K. Sorensen
Title: Authorized Officer
BANKERS TRUST COMPANY, as
Administrative Agent,
by /s/ ROBERT R. TELESCA
-----------------------
Name: Robert R. Telesca
Title: Assistant Vice
President
15
SCHEDULE I
SUBSIDIARY GUARANTORS
---------------------
Edison Plastics International Inc.
Huntsman Bulk Packaging Corporation
Huntsman Container Corporation International
Huntsman Edison Films Corporation
Huntsman Film Products of Mexico, Inc.
Huntsman KCL Corporation
Huntsman Packaging Georgia, Inc.
Huntsman Packaging of Canada, LLC
16
Annex 1 to the
Guarantee Agreement
SUPPLEMENT NO. dated as of , to the Guarantee
Agreement dated as of September 30, 1997, as amended and
restated as of May 31, 2000, among HUNTSMAN PACKAGING
CORPORATION, a Utah corporation (the "Borrower"), each of the
subsidiaries of the Borrower listed on Schedule I thereto
(each such subsidiary individually, a "Subsidiary Guarantor"
and collectively, the "Subsidiary Guarantors") of, and BANKERS
TRUST COMPANY, a New York banking corporation, as
administrative agent (the "Administrative Agent") for the
Lenders under the Credit Agreement referred to below.
A. Reference is made to the Credit Agreement dated as of September 30,
1997, as amended and restated as of May 31, 2000 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, Aspen Industrial, S.A. de C.V., a Mexico corporation, the lenders from
time to time party thereto (the "Lenders") and the Administrative Agent.
Capitalized terms used herein and not defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
B. The Borrower and the Subsidiary Guarantors have entered into the
Guarantee Agreement in order to induce the Lenders to make Loans and the Issuing
Bank to issue Letters of Credit. Pursuant to Section 5.12 of the Credit
Agreement, each Subsidiary Loan Party that was not in existence or not a
Subsidiary on the date of the Credit Agreement is required to enter into the
Guarantee Agreement as a Subsidiary Guarantor upon becoming a Subsidiary.
Section 20 of the Guarantee Agreement provides that additional Subsidiaries of
the Borrower may become Subsidiary Guarantors under the Guarantee Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary of the Borrower (the "New Subsidiary Guarantor") is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Subsidiary Guarantor under the Guarantee Agreement in
order to induce the Lenders to make additional Loans and the Issuing Bank to
issue additional
17
Letters of Credit and as consideration for Loans previously made and Letters of
Credit previously issued.
Accordingly, the Administrative Agent and the New Subsidiary Guarantor
agree as follows:
SECTION 1. In accordance with Section 20 of the Guarantee Agreement,
the New Subsidiary Guarantor by its signature below becomes a Subsidiary
Guarantor under the Guarantee Agreement with the same force and effect as if
originally named therein as a Subsidiary Guarantor and the New Subsidiary
Guarantor hereby (a) agrees to all the terms and provisions of the Guarantee
Agreement applicable to it as a Subsidiary Guarantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a
Subsidiary Guarantor thereunder are true and correct on and as of the date
hereof. Each reference to a "Subsidiary Guarantor" or "Guarantor" in the
Guarantee Agreement shall be deemed to include the New Subsidiary Guarantor. The
Guarantee Agreement is hereby incorporated herein by reference.
SECTION 2. The New Subsidiary Guarantor represents and warrants to the
Administrative Agent and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Subsidiary Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect.
18
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 14 of the Guarantee Agreement. All
communications and notices hereunder to the New Subsidiary Guarantor shall be
given to it at the address set forth under its signature below, with a copy to
the Borrower.
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Supplement, including the fees, disbursements and other charges of counsel for
the Administrative Agent.
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the
Administrative Agent have duly executed this Supplement to the Guarantee
Agreement as of the day and year first above written.
[Name of New Subsidiary Guarantor],
by
---------------------------
Name:
Title:
Address:
BANKERS TRUST COMPANY, as Administrative Agent,
by
-----------------------------
Name:
Title: