Exhibit 4.8
FORM OF GUARANTY (U.K. Subsidiaries)
THIS GUARANTY is entered into as of ___ May, 2001, by:
[__________________], (the "Guarantor"), in favour of Bank of America, N.A.
as administrative agent and as security trustee pursuant to the Consent (in
each capacity (as applicable), the "Agent") for the financial institutions
(the "Banks") from time to time party to that certain Amended and Restated
Multicurrency Credit Agreement dated as of ___ May, 2001 (as amended,
restated, modified or refinanced from time to time, the "Credit Agreement")
among APW Ltd. as borrower (the "Borrower"), the various financial
institutions listed therein as banks (together with their respective
successors and assigns), Bank One, N.A. as syndication agent, The Chase
Manhattan Bank, as documentation agent and Bank of America N.A as
administrative agent.
Recitals
WHEREAS:
(A) The Banks are willing to make certain Loans to the Borrower and issue
certain letters of credit on the application of the Borrower, as provided
in the Credit Agreement on the condition (among others) that the Guarantor
enters into this Guaranty.
(B) The Guarantor may derive benefits (which benefits are hereby acknowledged
by the Guarantor) from the Loans and the Letters of Credit and other
benefits to be provided to the Borrower under the Credit Agreement;
(C) In order to induce the Banks to make such Loans available to the Borrower
as provided in the Credit Agreement, and for other valuable consideration,
the Guarantor has agreed to issue this Guaranty.
NOW, THEREFORE, for good and valuable consideration, the Guarantor agrees
as follows:
1. Definitions
Unless otherwise defined herein, capitalized terms used in this Guaranty
have the meanings given to them from time to time in the Credit Agreement
save that "Consent" means a consent agreement dated ___ May, 2001 and made
between each of the parties to the Credit Agreement.
2. Guaranty
2.1 Guaranty
The Guarantor hereby irrevocably, absolutely and unconditionally guarantees
the full and punctual payment or performance when due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or
otherwise, of all of the Obligations of the Borrower (the "Guaranteed
Obligations"), including Obligations in respect of amounts that would
become due but for the operation of the automatic stay under Section 362(a)
of the U.S. Bankruptcy Code, the operation of Sections 502(b) and 506(b) of
the U.S. Bankruptcy Code or the operation of any comparable
provisions of laws of countries other than the United States; provided,
however, that the Guarantor shall be liable under this Guaranty for the
maximum amount of such liability that can be hereby incurred without
rendering this Guaranty, as it relates to the Guarantor, voidable under
applicable law relating to fraudulent conveyance, fraudulent transfer or
other applicable law, and not for any greater amount and provided further
that the Guaranteed Obligations shall exclude any obligation that would
constitute unlawful financial assistance prohibited by Section 151 of the
UK Companies Act 1985 or any analogous provision of any applicable law in
any jurisdiction. This Guaranty constitutes a guaranty of payment and
performance when due and not of collection, and the Guarantor specifically
agrees that it shall not be necessary or required that the Agent or any
Bank exercise any right, assert any claim or demand or enforce any remedy
whatsoever against the Borrower (or any other Person) before or as a
condition to the obligations of the Guarantor hereunder. The Agent or any
Bank may permit the indebtedness of the Borrower to the Agent or any Bank
to include indebtedness other than the Guaranteed Obligations, and may
apply any amounts received from any source, other than from the Guarantor,
to that portion of the Borrower's indebtedness to the Agent or any Bank
which is not a part of the Obligations.
2.2 Currency
Payments hereunder shall be made in the same currency as the Guaranteed
Obligations so guaranteed. If and to the extent payments hereunder are
made in a different currency, payments required hereunder shall be
increased to the extent necessary to avoid any loss to the Agent or the
Banks on account of any change or changes in the value of such different
currency from the currency of the applicable Guaranteed Obligations.
2.3 Obligations Independent
The obligations hereunder are independent of the obligations of the
Borrower, and a separate action or actions may be brought and prosecuted
against the Guarantor whether any action is brought against the Borrower or
whether the Borrower shall be joined in any such action or actions.
2.4 Authorisation of Renewals, Etc.
The Guarantor authorizes the Agent and each Bank, without notice or demand
and without affecting its liability hereunder, from time to time:
(a) to renew, compromise, extend, accelerate or otherwise change the time for
payments of, or otherwise change the terms of, the Guaranteed Obligations,
including increase or decrease of the rate of interest thereon, or
otherwise change the terms of the Credit Agreement or any other Loan
Document, as permitted therein;
(b) to receive and hold security for the payment of this Guaranty or the
Guaranteed Obligations and exchange, enforce, waive, release, fail to
perfect, sell, or otherwise dispose of any such security;
(c) to apply such security and direct the order or manner of sale thereof as
the Agent or any Bank, as the case may be, in its discretion may determine;
and
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(d) to release or substitute any one or more of any endorsers or guarantors of
the Guaranteed Obligations.
The Guarantor further agrees that the performance or occurrence of any of
the acts or events described in clauses (a), (b), (c), and (d) above with
respect to indebtedness or other obligations of the Borrower, other than
the Guaranteed Obligations, to the Agent or any Bank, shall not affect the
liability of the Guarantor hereunder.
2.5 Waiver of Certain Rights
The Guarantor waives any right to require the Agent or any Bank:
(a) to proceed against the Borrower or any other Person;
(b) to proceed against or exhaust any security for the Guaranteed Obligations
or any other indebtedness of the Borrower to the Agent or any Bank; or
(c) to pursue any other remedy in the Agent's or any such Bank's power
whatsoever.
2.6 Waiver of Certain Defenses
The Guarantor waives any defense arising by reason of any disability or
other defense of the Borrower or the cessation from any cause whatsoever of
the liability of the Borrower, whether consensual or arising by operation
of law or any bankruptcy, insolvency or debtor relief proceeding, or from
any other cause, or any claim that the Guarantor's obligations exceed or
are more burdensome than those of the Borrower. The Guarantor waives all
rights and defenses arising out of an election of remedies by the Agent, or
any Bank, even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for the Guaranteed Obligations, has
terminated the Guarantor's rights of subrogation and reimbursement against
the Borrower by operation of applicable law, and all rights or defenses the
Guarantor may have by reason of protection afforded to the Borrower with
respect to the Guaranteed Obligations pursuant to any antideficiency laws
or other laws of applicable jurisdiction limiting or discharging the
Guaranteed Obligations. The Guarantor waives any benefit of, and any right
to participate in, any security or other guaranty now or hereafter held by
the Agent or any Bank securing the Guaranteed Obligations.
2.7 Waiver of Presentments, Etc.
The Guarantor waives all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonour and
notices of acceptance of this Guaranty and of the existence or creation of
new Guaranteed Obligations or any other indebtedness of the Borrower to the
Agent or any Bank.
2.8 Information Relating to the Borrower
The Guarantor acknowledges and agrees that it shall have the sole
responsibility for obtaining from the Borrower such information concerning
the Borrower's financial condition or business operations as the Guarantor
may require, and that neither the Agent nor any Bank has any duty at any
time to disclose to the Guarantor any information relating to the business,
operations or financial condition of the Borrower.
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2.9 Right of Setoff
In addition to any rights and remedies of the Banks provided by law, if
the Guarantor has failed to make any payment due hereunder upon demand,
each Bank is authorized at any time and from time to time, without prior
notice to the Guarantor, any such notice being waived by the Guarantor 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)
(including deposits in other currencies in amounts determined at the Spot
Rate on the date of setoff) at any time held and other indebtedness at any
time owing by such Bank to or for the credit or the account of the
Guarantor against any and all obligations of the Guarantor now or
hereafter existing under this Guaranty or any other Loan Document,
irrespective of whether or not the Agent or such Bank shall have made
demand under this Guaranty or any other Loan Document. Each Bank agrees
promptly to notify the Guarantor and the Agent after any such set-off and
application made by such Bank; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
The rights of each Bank under this Section 2.9 are in addition to the
other rights and remedies (including, without limitation, other rights of
set-off) which such Bank may have.
2.10 Subordination
Any obligations of the Borrower to the Guarantor, now or hereafter
existing, constituting obligations to the Guarantor as subrogee of the
Agent or any Bank or resulting from the Guarantor's performance under this
Guaranty, are hereby fully subordinated in time and priority of payment to
the Obligations.
2.11 Reinstatement of Guaranty
If any payment or transfer of any interest in property by the Borrower to
the Agent or any Bank in fulfilment of any Guaranteed Obligation is
rescinded or must at any time (including after the return or cancellation
of this Guaranty) be returned, in whole or in part, by the Agent or any
Bank to the Borrower or any other Person, upon the insolvency, bankruptcy
or reorganization of the Borrower or otherwise, this Guaranty shall be
reinstated with respect to any such payment or transfer, regardless of any
such prior return or cancellation.
2.12 Powers
It is not necessary for the Agent or any Bank to inquire into the powers
of the Borrower or of the officers, directors, partners or agents acting
or purporting to act on its behalf, and any Guaranteed Obligations made or
created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
2.13 Taxes
(a) Any and all payments by the Guarantor to each Bank or the Agent under this
Guaranty shall be made free and clear of, and without deduction or
withholding for, any Taxes. In addition, the Guarantor shall pay all Other
Taxes.
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(b) If the Guarantor shall be required by law to deduct or withhold any Taxes,
Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Bank or the Agent, then:
(i) 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 Bank or the Agent, as the case may be, receives and retains an amount
equal to the sum it would have received and retained had no such
deductions or withholdings been made;
(ii) the Guarantor shall make such deductions and withholdings;
(iii) the Guarantor shall pay the full amount deducted or withheld to the
relevant taxing authority or other authority in accordance with applicable
law; and
(iv) the Guarantor shall also pay to each Bank or the Agent for the account of
such Bank, at the time interest is paid, on request of such Bank after
such incurrence, Further Taxes in the amount that the respective Bank
determines in good faith as necessary to preserve the after-tax yield such
Bank would have received if such Taxes, Other Taxes or Further Taxes had
not been imposed.
(c) The Guarantor agrees to indemnify and hold harmless each Bank and the
Agent for the full amount of (i) Taxes, (ii) Other Taxes, and (iii)
Further Taxes in the amount that the respective Bank determines in good
faith as necessary to preserve the after-tax yield such Bank would have
received if such Taxes, Other Taxes or Further Taxes had not been imposed,
and any liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, whether or not such
Taxes, Other Taxes or Further Taxes were correctly or legally asserted;
provided, that the Guarantor shall not be required to indemnify a Bank for
any such liability which arose because of the failure of said Bank to make
a payment for more than five days after such Bank became aware of the
requirement to make such payment. Payment under this indemnification shall
be made within 30 days after the date the applicable Bank or the Agent
makes written demand therefor.
(d) Within 30 days after the date of any payment by the Guarantor of Taxes,
Other Taxes or Further Taxes, the Guarantor shall furnish to each Bank or
the Agent the original or a certified copy of a receipt evidencing payment
thereof, or other evidence of payment satisfactory to such Bank or the
Agent.
(e) For purposes of this Section, (i) "Taxes" means any and all present or
future taxes, levies, assessments, imposts, duties, deductions, fees,
withholdings or similar charges, and all liabilities with respect thereto,
excluding, in the case of each Bank and the Agent, respectively, taxes
imposed on or measured by its net income by the jurisdiction (or any
political subdivision thereof) under the laws of which such Bank or the
Agent, as the case may be, is organized or maintains a lending office in
respect of the Credit Agreement; (ii) "Other Taxes" means any present or
future stamp, court or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made
hereunder or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, this Guaranty; and (iii)
"Further Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges
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(including, without limitation, net income taxes and franchise taxes), and
all liabilities with respect thereto, imposed by any jurisdiction on
account of amounts payable or paid pursuant to this Section.
3. Representations and Warranties
The Guarantor represents and warrants to the Agent and each Bank as
follows:
3.1 Existence and Power
The Guarantor (a) is a corporation duly incorporated and validly existing
under the laws of the jurisdiction of its incorporation; (b) has the power
and authority and all governmental licenses, authorizations, consents and
approvals to own its assets, carry on its business and to execute, deliver,
and perform its obligations under this Guaranty and any other Loan Document
to which it is a party; (c) is duly qualified as a foreign corporation, and
licensed and in good standing, under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its
business requires such qualification or license except to the extent
failure to so qualify would not have a Material Adverse Effect; and (d) is
in compliance with all Requirements of Law except to the extent the failure
to so comply would not have a Material Adverse Effect.
3.2 Corporate Authorization; No Contravention
The execution, delivery and performance by the Guarantor of this Guaranty
and any other Loan Document to which it is party, have been duly authorized
by all necessary corporate action, and do not and will not (a) contravene
the terms of any of the Guarantor's Organic Documents; (b) conflict with or
result in any material breach or contravention of, or the creation of any
lien under, any document evidencing any material Contractual Obligation to
which the Guarantor is a party or any order, injunction, writ or decree of
any Governmental Authority to which the Guarantor or its property is
subject; or (c) violate any Requirement of Law.
3.3 Governmental Authorization
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, the Guarantor of this Guaranty or any other Loan
Document to which it is a party save for certain registrations necessary to
perfect any security given by the Guarantor in securing its obligations
under this Guaranty.
3.4 Binding Effect
This Guaranty and each other Loan Document to which the Guarantor is a
party constitute the legal, valid and binding obligations of the Guarantor,
enforceable against the Guarantor in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability save for
certain registrations necessary to perfect any security given by the
Guarantor in securing its obligations under this Guaranty.
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3.5 Regulated Entities
The Guarantor is not subject to any statute or regulation limiting its
ability to incur or guarantee Debt.
4. Miscellaneous
4.1 Application of Payments on Guaranty
All payments required to be made by the Guarantor hereunder shall, unless
otherwise expressly provided herein, be made to the Agent for the account
of the Banks at the Administrative Agent's Payment Office. The Agent will
promptly distribute to each Bank its share of such payment in like funds as
received. Payments received from the Guarantor shall, unless otherwise
expressly provided herein, be applied to costs, fees, or other expenses due
under the Loan Documents, any interest, any principal due under the Loan
Documents and any other Guaranteed Obligations, in such order as the Agent,
with the consent of or at the request of the Required Banks, shall
determine.
4.2 Assignments and Participations
Any Bank may from time to time, without notice to the Guarantor and without
affecting the Guarantor's obligations hereunder, transfer its interest in
the Guaranteed Obligations to Participants and Assignees as provided in the
Credit Agreement. The Guarantor agrees that each such transfer will give
rise to a direct obligation of the Guarantor to each such Participant and
Assignee and that each such Participant and Assignee shall have the same
rights and benefits under this Guaranty as it would have if it were a Bank
party to the Credit Agreement and this Guaranty.
4.3 Loan Document
This Guaranty is a Loan Document executed and delivered pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and
provisions thereof.
4.4 Waivers; Writing Required
No delay or omission by the Agent or any Bank to exercise any right under
this Guaranty shall impair any such right, nor shall it be construed to be
a waiver thereof. No waiver of any single breach or default under this
Guaranty shall be deemed a waiver of any other breach or default. Any
amendment or waiver of any provision of this Guaranty must be in writing
and signed by the Guarantor and the Agent, with the written consent of the
Required Banks or all of the Banks, in accordance with the terms of Section
10.1 of the Credit Agreement.
4.5 Remedies
All rights and remedies provided in this Guaranty and any instrument or
agreement referred to herein are cumulative and are not exclusive of any
rights or remedies otherwise provided by law. Any single or partial
exercise of any right or remedy shall not preclude the further exercise
thereof or the exercise of any other right or remedy.
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4.6 Costs and Expenses
The Guarantor agrees to pay or reimburse the Agent and each Bank within
five Business Days after demand for all reasonable costs and expenses
(including Attorney Costs) incurred by them in connection with the
enforcement, attempted enforcement, or preservation of any rights or
remedies under this Guaranty (including in connection with any "workout" or
restructuring regarding amounts due under this Guaranty, and including in
any insolvency proceeding or appellate proceeding).
4.7 Severability
The illegality or unenforceability of any provision of this Guaranty or any
instrument or agreement referred to herein shall not in any way affect or
impair the legality or enforceability of the remaining provisions of this
Guaranty or any instrument or agreement referred to herein.
4.8 Governing Law and Jurisdiction
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF ILLINOIS; PROVIDED THAT THE AGENT AND THE BANKS SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY AND ANY OTHER
LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR OF
THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION
AND DELIVERY OF THIS GUARANTY, THE GUARANTOR, CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
EACH OF THE GUARANTOR, THE AGENT AND THE BANKS IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS GUARANTY OR ANY DOCUMENT RELATED HERETO.
THE GUARANTOR, THE AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY ILLINOIS LAW.
4.9 Waiver of Jury Trial
THE GUARANTOR, THE BANKS AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS
TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR RELATED TO THIS GUARANTY, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY
OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE GUARANTOR, THE BANKS AND THE AGENT EACH AGREE
THAT ANY
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SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION
AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY
OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
4.10 Judgment
If, for the purposes of obtaining judgment in any court, it is necessary
to convert a sum due hereunder in one currency into another currency, the
rate of exchange used shall be that at which in accordance with its normal
banking procedures the Agent could purchase the first currency with such
other currency on the Business Day preceding that on which final judgment
is given. The obligation of the Guarantor in respect of any such sum due
from it to the Agent hereunder shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this Guaranty
(the "Agreement Currency"), be discharged only to the extent that on the
Business Day following receipt by the Agent of any sum adjudged to be so
due in the Judgment Currency, the Agent may in accordance with normal
banking procedures purchase the Agreement Currency with the Judgment
Currency. If the amount of the Agreement Currency so purchased is less
than the sum originally due to the Agent in the Agreement Currency, the
Guarantor agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Agent or the Person to whom such obligation was
owing against such loss.
4.11 Entire Agreement
This Guaranty (a) integrates all the terms and conditions mentioned herein
or incidental hereto, (b) supersedes all oral negotiations and prior
writings with respect to the subject matter hereof, and (c) is intended by
the parties as the final expression of the agreement with respect to the
terms and conditions set forth in this Guaranty and any such instrument,
agreement and document and as the complete and exclusive statement of the
terms agreed to by the parties.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty by its duly
authorized officer as of the day and year first above written.
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Signed by [____________________] acting by )
______________________ )
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