Exhibit 10.2.4
GUARANTEE
This Guarantee ("Agreement"), dated as of March 23, 1998, is between I.A.E.
Incorporated, a Michigan corporation (together with its successors and assigns,
the "Guarantor"), and Harvard Private Capital Holdings, Inc. (together with its
successors and assigns, the "Noteholder"). The parties agree as follows:
1. Reference to Securities Purchase Agreement; Certain Rules of Construction;
Definitions. Reference is made to the Securities Purchase Agreement dated as of
January 3, 1996, as from time to time in effect, as amended (the "Securities
Purchase Agreement"), between Numatics, Incorporated, a Michigan corporation
(the "Company"), and the Noteholder. Except as the context otherwise explicitly
requires, (a) the capitalized term "Section" refers to sections of this
Agreement, (b) references to a particular Section shall include all subsections
thereof and (c) the word "including" shall be construed as "including without
limitation". Capitalized terms defined in the Securities Purchase Agreement and
not otherwise defined herein are used herein with the meanings so defined. In
addition, the term "Bankruptcy Code" shall mean Title 11 of the United States
Code, and the term "Obligor" shall mean each Person having any obligation or
other liability in respect of the Guaranteed Obligations, including each of the
Company and each Subsidiary of the Company executing a Guarantee Agreement.
2. Guarantee.
2.1. Guarantee. The Guarantor unconditionally guarantees that the
principal of, and interest on the Indebtedness evidenced by, and all other
obligations of the Company in respect of, or arising under or in respect of, the
Notes or to the holders of the Notes, including without limitation all such
obligations arising under Section 14 of the Securities Purchase Agreement
(collectively, the "Guaranteed Obligations"), will be performed and will be paid
in full in cash when due and payable, whether at the stated or accelerated
maturity thereof or otherwise, this guarantee being a guarantee of payment and
not of collectibility and being absolute and in no way conditional or
contingent. In the event any part of the Guaranteed Obligations shall not have
been so paid in full when due and payable, the Guarantor will, immediately upon
notice by the Noteholder or, without notice, immediately upon the occurrence of
a Default, pay or cause to be paid to the Noteholder the amount of such
Guaranteed Obligations which is then due and payable and unpaid. The obligations
of the Guarantor hereunder shall not be affected by the invalidity,
unenforceability or irrecoverability of any of the Guaranteed Obligations as
against any Obligor. For purposes hereof, the Guaranteed Obligations shall be
due and payable when and as the same shall be due and payable under the terms of
the Securities Purchase Agreement or any other of the Related Agreements
notwithstanding the fact that the collection or enforcement thereof may be
stayed or enjoined under the Bankruptcy Code or other applicable law.
2.2. Continuing Obligation. The Guarantor acknowledges that the
Noteholder has entered into the Securities Purchase Agreement and the other
Related Agreements (and, to the extent that the Noteholder may enter into any
future Related Agreement, will have entered into such agreement) in reliance on
this Section 2 being a continuing irrevocable agreement, and the Guarantor
agrees that its guarantee may not be revoked in whole or in part. The
obligations of the Guarantor hereunder shall terminate when all of the
Guaranteed Obligations has been indefeasibly paid in full in cash and
discharged; provided, however, that:
(a) if a claim is made upon the Noteholder at any time for repayment
or recovery of any amounts or any property received by the Noteholder from
any source on account of any of the Guaranteed Obligations and the
Noteholder repays or returns any amounts or property so received (including
interest thereon to the extent required to be paid by the Noteholder) or
(b) if the Noteholder become liable for any part of such claim by
reason of (i) any judgment or order of any court or administrative
authority having competent jurisdiction, or (ii) any settlement or
compromise of any such claim,
then the Guarantor shall remain liable under this Agreement for the amounts so
repaid or property so returned or the amounts for which the Noteholder becomes
liable (such amounts being deemed part of the Guaranteed Obligations) to the
same extent as if such amounts or property had never been received by the
Noteholder, notwithstanding any termination hereof or the cancellation of any
instrument or agreement evidencing any of the Guaranteed Obligations. Not later
than five days after receipt of notice from the Noteholder, the Guarantor shall
pay to the Noteholder an amount equal to the amount of such repayment or return
for which the Noteholder has so become liable. Payments hereunder by the
Guarantor may be required by the Noteholder on any number of occasions.
2.3. Waivers with Respect to Guaranteed Obligations. Except to the extent
expressly required by the Securities Purchase Agreement, or any other Related
Agreement, the Guarantor waives, to the fullest extent permitted by the
provisions of applicable law, all of the following (including all defenses,
counterclaims and other rights of any nature based upon any of the following):
(a) presentment, demand for payment and protest of nonpayment of any
of the Guaranteed Obligations, and notice of protest, dishonor or
nonperformance;
(b) notice of acceptance of this guarantee and notice that credit has
been extended in reliance on the Guarantor's guarantee of the Guaranteed
Obligations;
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(c) notice of any Default or of any inability to enforce performance
of the obligations of the Company or any other Person with respect to any
Related Agreement, or notice of any acceleration of maturity of any
Guaranteed Obligations;
(d) demand for performance or observance of, and any enforcement of
any provision of the Securities Purchase Agreement, the Guaranteed
Obligations or any other Related Agreement or any pursuit or exhaustion of
rights or remedies under the Security Agreement or against the Company or
any other Person in respect of the Guaranteed Obligations or any
requirement of diligence or promptness on the part of the Noteholder in
connection with any of the foregoing;
(e) any act or omission on the part of the Noteholder which may impair
or prejudice the rights of the Guarantor, including rights to obtain
subrogation, exoneration, contribution, indemnification or any other
reimbursement from the Company or any other Person, or otherwise operate as
a deemed release or discharge;
(f) failure or delay to perfect or continue the perfection of any Lien
under any Security Agreement or any other action which harms or impairs the
value of, or any failure to preserve or protect the value of, any right,
title and interest in and to the items and types of present and future
property on which a Lien is created as set forth in any Security Agreement;
(g) any statute of limitations or other Legal Requirement which
provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than the obligation of the principal;
(h) any "single action" or "anti-deficiency" law which would otherwise
prevent the Noteholder from bringing any action, including any claim for a
deficiency, against the Guarantor before or after the Noteholder's
commencement or completion of any foreclosure action, whether judicially,
by exercise of power of sale or otherwise, or any other law which would
otherwise require any election of remedies by the Noteholder;
(i) all demands and notices of every kind with respect to the
foregoing; and
(j) to the extent not referred to above, all defenses (other than
payment) which the Company or any other Obligor may now or hereafter have
to the payment of the Guaranteed Obligations, together with all suretyship
defenses, which could otherwise be asserted by the Guarantor.
The Guarantor represents that it has obtained the advice of counsel as to the
extent to which suretyship and other defenses may be
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available to it with respect to its obligations hereunder in the absence of the
waivers contained in this Section 2.3.
No delay or omission on the part of the Noteholder in exercising any right
under this Agreement or any other Related Agreement or under any guarantee of
the Guaranteed Obligations or with respect to any right under the Security
Agreement shall operate as a waiver or relinquishment of such right. No action
which the Noteholder or any Obligor may take or refrain from taking with respect
to the Guaranteed Obligations, including any amendments thereto or modifications
thereof or waivers with respect thereto, shall affect the provisions of this
Agreement or the obligations of the Guarantor hereunder. None of the
Noteholder's rights shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of any Obligor, or by any noncompliance by
any Obligor with the terms, provisions and covenants of the Securities Purchase
Agreement or any other Related Agreement, regardless of any knowledge thereof
which the Noteholder may have or otherwise be charged with.
2.4. The Noteholder's Power to Waive, etc. The Guarantor grants to the
Noteholder full power in its discretion, without notice to or consent of the
Guarantor, such notice and consent being expressly waived to the fullest extent
permitted by applicable law, and without in any way affecting the liability of
the Guarantor under its guarantee hereunder:
(a) To waive compliance with, and any Default under, and to consent to
any amendment to or modification or termination of any terms or provisions
of, or to give any waiver in respect of, the Securities Purchase Agreement,
any other Related Agreement, the Guaranteed Obligations or any Guarantee
thereof (each as from time to time in effect);
(b) To grant any extensions of the Guaranteed Obligations (for any
duration), and any other indulgence with respect thereto, and to effect any
total or partial release (by operation of law or otherwise), discharge,
compromise or settlement with respect to the obligations of any Obligors or
any other Person in respect of the Guaranteed Obligations, whether or not
rights against the Guarantor under this Agreement are reserved in
connection therewith;
(c) To take security in any form for the Guaranteed Obligations, and
to consent to the addition to or the substitution, exchange, release or
other disposition of, or to deal in any other manner with, any part of any
property on which a Lien is created under any Security Agreement whether or
not the property, if any, received upon the exercise of such power shall be
of a character or value the same as or different from the character or
value of any property disposed of, and to obtain, modify or release any
present or future Guarantees of the Guaranteed Obligations and to proceed
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against any property on which a Lien is created under any Security
Agreement or such Guarantees in any order;
(d) To collect or liquidate or realize upon or to refrain from
collecting or liquidating or realizing upon any of the Guaranteed
Obligations or the property on which a Lien is created under the Security
Agreement in any manner.
2.5. Information Regarding the Company, etc. The Guarantor has made such
investigation as it deems desirable of the risks undertaken by it in entering
into this Agreement and is fully satisfied that it understands all such risks.
The Guarantor waives any obligation which may now or hereafter exist on the part
of the Noteholder to inform it of the risks being undertaken by entering into
this Agreement or of any changes in such risks and, from and after the date
hereof, the Guarantor undertakes to keep itself informed of such risks and any
changes therein. The Guarantor expressly waives any duty which may now or
hereafter exist on the part of the Noteholder to disclose to the Guarantor any
matter related to the business, operations, character, collateral, credit,
condition (financial or otherwise), income or prospects of any Obligor or its
Affiliates or their properties or management, whether now or hereafter known by
the Noteholder. The Guarantor represents, warrants and agrees that it assumes
sole responsibility for obtaining from the Company all information concerning
the Securities Purchase Agreement and all other Related Agreements and all other
information as to the Obligors and their Affiliates or their properties or
management as the Guarantor deems necessary or desirable.
2.6. Certain Guarantor Representations. The Guarantor represents that:
(a) it is in its best interest and in pursuit of the purposes for
which it was organized as an integral part of the business conducted and
proposed to be conducted by the Company and its Subsidiaries, and
reasonably necessary and convenient in connection with the conduct of the
business conducted and proposed to be conducted by them, to induce the
Noteholder to enter into the Securities Purchase Agreement and to extend
credit to the Company by making the Guarantee contemplated by this Section
2;
(b) the credit available hereunder will directly or indirectly inure
to its benefit;
(c) by virtue of the foregoing it is receiving at least reasonably
equivalent value from the Noteholder for its Guarantee;
(d) it will not be rendered insolvent as a result of entering into
this Agreement;
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(e) after giving effect to the transactions contemplated by this
Agreement, it will have assets having a fair saleable value in excess of
the amount required to pay its probable liability on its existing debts as
they become absolute and matured;
(f) it has, and will have, access to adequate capital for the conduct
of its business;
(g) it has the ability to pay its debts from time to time incurred in
connection therewith as such debts mature; and
(h) it has been advised by the Noteholder that the Noteholder is
unwilling to enter into certain Amendments to the Securities Purchase
Agreement unless the Guarantee contemplated by this Section 2 is given by
it.
2.7. Subrogation. The Guarantor agrees that, until the Guaranteed
Obligations are paid in full, it will not exercise any right of reimbursement,
subrogation, contribution, offset or other claims against any other Obligor
arising by Contractual Obligation or operation of any Legal Requirement in
connection with any payment made or required to be made by the Guarantor under
this Agreement. After the payment in full of the Guaranteed Obligations, the
Guarantor shall be entitled to exercise against the Company and any other
Obligor all such rights of reimbursement, subrogation, contribution and offset,
and all such other claims, to the fullest extent permitted by law.
2.8. Subordination. The Guarantor covenants and agrees that, after the
occurrence of an Event of Default, all Indebtedness, claims and liabilities then
or thereafter owing by any Obligor to the Guarantor whether arising hereunder or
otherwise are subordinated to the prior payment in full of the Guaranteed
Obligations and are so subordinated as a claim against such Obligor or any of
its assets, whether such claim be in the ordinary course of business or in the
event of voluntary or involuntary liquidation, dissolution, insolvency or
bankruptcy, so that no payment with respect to any such Indebtedness, claim or
liability will be made or received while any Event of Default exists.
2.9. Further Assurances. The Guarantor will, promptly upon the request of
the Noteholder from time to time, execute, acknowledge and deliver, and file and
record, all such instruments, and take all such action, as the Noteholder deems
necessary or advisable to carry out the intent and purposes of this Section 2.
3. Representations and Warranties. In order to induce the Noteholder to
extend credit under the Securities Purchase Agreement, the Guarantor represents
and warrants that:
3.1. Organization and Business. The Guarantor is a duly organized and
validly existing corporation, in good standing under
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the laws of Michigan, with all power and authority, corporate or otherwise,
necessary (a) to enter into and perform this Agreement and each other Related
Agreement to which it is a party and (b) to own its properties and carry on the
business now conducted or proposed to be conducted by it. Certified copies of
the Charter and By-laws of the Guarantor have been previously delivered to the
Noteholder and are correct and complete.
3.2. Authorization and Enforceability. The Guarantor has taken all
corporate action required to execute, deliver and perform this Agreement and
each other Related Agreement to which it is a party. Each of this Agreement and
each other Related Agreement to which the Guarantor is party constitutes the
legal, valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms subject to the effect of Bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
rights and remedies of creditors generally and by general principles of equity,
regardless of whether applied in proceedings in equity or at law, including
limitations imposed by equity on the enforceability of waivers.
3.3. No Legal Obstacle to Agreements. Neither the execution and delivery of
this Agreement or any other Related Agreement, nor the consummation of any
transaction referred to in or contemplated by this Agreement or any other
Related Agreement, nor the fulfillment of the terms hereof or thereof or of any
other Contractual Obligation referred to in this Agreement or any other Related
Agreement, has constituted or resulted, or will constitute or result, in:
(a) Any breach or termination of the provisions of any Contractual
Obligation to which the Guarantor is a party or by which it is bound, or of
the Charter or By-laws of the Guarantor: or
(b) The violation of any Legal Requirement.
No approval, authorization or other action by, or declaration to or filing with,
any Governmental Authority or any other Person is required to be obtained or
made by the Guarantor in connection with the execution, delivery and performance
of this Agreement or any other Related Agreement to which it is party or the
transactions contemplated hereby or thereby.
3.4. Litigation. No Action is pending or, to the knowledge of the
Guarantor, threatened which may involve any material risk of any final judgment,
order or liability which, after giving effect to any applicable insurance, has
resulted, or creates a material risk of resulting, in any material adverse
change in the Guarantor's business, assets, financial condition, income or
prospects or which seeks to enjoin the consummation, or which questions the
validity, of any of the transactions contemplated by this Agreement or any other
Related Agreement. No judgment, decree or order of any Governmental Authority
has been issued against or
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binds the Guarantor which has resulted, or creates a material risk of resulting,
in any material adverse change in the Guarantor's business. assets, financial
condition, income or prospects.
4. Successors and Assigns. The provisions of this Agreement shall inure to
the benefit of the Noteholder and its successors and assigns and shall be
binding upon the Guarantor and its respective successors and assigns. The
Guarantor may not assign its rights or obligations under this Agreement without
the written consent of the Noteholder.
5. Notices. Any notice or other communication in connection with this
Agreement shall be deemed to be given if given in writing (including telex,
telecopy or similar teletransmission) addressed as provided below (or to the
addressee at such other address as the addressee shall have specified by notice
actually received by the addressor), and if either (a) actually delivered in
fully legible form to such address (evidenced in the case of a telex by receipt
of the correct answerback) or (b) in the case of a letter, five business days
shall have elapsed after the same shall have been deposited in the United States
mails, with first-class postage prepaid and registered or certified.
If to the Guarantor, to it care of Numatics, Incorporated, 1450 North
Milford Road, Highland, Michigan 48357, to the attention of the chief financial
officer.
If to the Noteholder, to it at its address specified in or pursuant to
Section 15 of the Securities Purchase Agreement.
6. Venue; Service of Process.
(a) The Guarantor and Noteholder agree that any legal proceeding
arising out of or based upon this Agreement or any Specified Related
Agreement relating to the subject matter hereof or thereof shall be brought
in the state courts of the Commonwealth of Massachusetts or the United
States District Court located in the Commonwealth of Massachusetts, and in
no other court or jurisdiction;
(b) The Guarantor and Noteholder irrevocably submit to the exclusive
jurisdiction of the state courts of The Commonwealth of Massachusetts and
the United States District Court for the District of Massachusetts for the
purpose of any suit, action or other proceeding arising out of or based
upon this Agreement or the subject matter hereof or thereof brought by the
Guarantor or Noteholder or any of their respective successors or assigns;
and
(c) The Guarantor and Noteholder waive to the extent not prohibited by
applicable law, and agrees not to assert, by way of motion, as a defense or
otherwise, in any such proceeding brought in any of the above-named courts,
any claim that they are not subject personally to the jurisdiction of such
court,
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that their property is exempt or immune from attachment or execution, that
such proceeding is brought in an inconvenient forum, that the venue of any
such proceeding is improper, or that this Agreement or any other Related
Agreement, or the subject matter hereof or thereof, may not be enforced in
or by such court.
The Guarantor and Noteholder consent to service of process in any such
proceeding in any manner permitted by Chapter 223A or any other provision of the
General Laws of The Commonwealth of Massachusetts or the rules and regulations
promulgated thereunder and agree that service of process by registered or
certified mail, return receipt requested, at their address specified in or
pursuant to Section 5 is reasonably calculated to give actual notice.
7. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
WHICH CANNOT BE WAIVED, EACH OF THE NOTEHOLDER AND THE GUARANTOR WAIVE, AND
COVENANT THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE),
ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE
SECURITIES PURCHASE AGREEMENT OR ANY OTHER RELATED AGREEMENT OR THE SUBJECT
MATTER HEREOF OR THEREOF OR ANY OBLIGATION HEREUNDER OR THEREUNDER OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE NOTEHOLDER OR THE
GUARANTOR IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. THE GUARANTOR
AND NOTEHOLDER ACKNOWLEDGE THAT EACH HAS BEEN INFORMED BY THE OTHER THAT THE
PROVISIONS OF THIS SECTION 7 CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE
OTHER HAS RELIED, IS RELYING AND WILL RELY IN ENTERING INTO THE SECURITIES
PURCHASE AGREEMENT AND ANY OTHER RELATED AGREEMENT TO WHICH IT IS A PARTY, AND
THAT IT HAS REVIEWED THE PROVISIONS OF THIS SECTION 7 WITH ITS COUNSEL. The
Noteholder or the Guarantor may file an original counterpart or a copy of this
Section 7 with any court as written evidence of the consent of the Noteholder
and the Guarantor to the waiver of the right to trial by jury.
8. Subordination. Notwithstanding anything to the contrary herein contained,
if the Guarantor has executed a Guarantee of any Senior Indebtedness (as defined
in Section 5 of Exhibit 7.2A to the Securities Purchase Agreement), or is
otherwise obligated to pay Senior Indebtedness, then (a) the Noteholder shall
take no action under this Agreement unless the Noteholder would be allowed to
take action directly against the Company under the terms of Section 5 of the
Notes, and (b) the obligations of the Guarantor under this Agreement shall
otherwise be subordinated to the Guarantor's obligations under the Senior
Indebtedness on the same terms and to the same extent as the Subordinated
Indebtedness is subordinated to such Senior Indebtedness.
9. General. All covenants, agreements, representations and warranties made
in this Agreement or any other Related Agreement or in certificates delivered
pursuant hereto or thereto shall be
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deemed to have been relied on by The Noteholder, notwithstanding any
investigation made by the Noteholder or its counsel, and shall survive the
execution and delivery to The Noteholder hereof and thereof. The invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of any other term or provision hereof. The headings in this
Agreement are for convenience of reference only and shall not limit, alter or
otherwise affect the meaning hereof. This Agreement and the other Related
Agreements constitute the entire understanding of the parties with respect to
the subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral. This Agreement is
intended to take effect as a sealed document and may be executed in any number
of counterparts, which together shall constitute one instrument. This Agreement
shall be governed by and construed in accordance with the domestic substantive
laws of The Commonwealth of Massachusetts without regard to any choice or
conflict of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction.
10. Amendment and Restatement. This Agreement amends and restates in its
entirety that certain Guarantee dated as of January 3, 1996 executed by the
Guarantor.
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
dated first written above.
I.A.E. INCORPORATED
By /s/ Robert P. Robeson
--------------------------------
Title: Secretary
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HARVARD PRIVATE CAPITAL HOLDINGS, INC.
By /s/ Timothy R. Palmer
--------------------------------
Title: Managing Director
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By /s/ Michael R. Eisenson
--------------------------------
Title: President and CEO
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AMENDED AND RESTATED GUARANTEE
This Amended and Restated Guarantee ("Agreement"), dated as of March 23,
1998, is between Micro-Filtration, Inc., a Michigan corporation (together with
its successors and assigns, the "Guarantor"), and Harvard Private Capital
Holdings, Inc. (together with its successors and assigns, the "Noteholder"). The
parties agree as follows:
1. Reference to Securities Purchase Agreement; Certain Rules of Construction;
Definitions. Reference is made to the Securities Purchase Agreement dated as of
January 3, 1996, as from time to time in effect, as amended (the "Securities
Purchase Agreement"), between Numatics, Incorporated, a Michigan corporation
(the "Company"), and the Noteholder. Except as the context otherwise explicitly
requires, (a) the capitalized term "Section" refers to sections of this
Agreement, (b) references to a particular Section shall include all subsections
thereof and (c) the word "including" shall be construed as "including without
limitation". Capitalized terms defined in the Securities Purchase Agreement and
not otherwise defined herein are used herein with the meanings so defined. In
addition, the term "Bankruptcy Code" shall mean Title 11 of the United States
Code, and the term "Obligor" shall mean each Person having any obligation or
other liability in respect of the Guaranteed Obligations, including each of the
Company and each Subsidiary of the Company executing a Guarantee Agreement.
2. Guarantee.
2.1. Guarantee. The Guarantor unconditionally guarantees that the
principal of, and interest on the Indebtedness evidenced by, and all other
obligations of the Company in respect of, or arising under or in respect of, the
Notes or to the holders of the Notes, including without limitation all such
obligations arising under Section 14 of the Securities Purchase Agreement
(collectively, the "Guaranteed Obligations"), will be performed and will be paid
in full in cash when due and payable, whether at the stated or accelerated
maturity thereof or otherwise, this guarantee being a guarantee of payment and
not of collectibility and being absolute and in no way conditional or
contingent. In the event any part of the Guaranteed Obligations shall not have
been so paid in full when due and payable, the Guarantor will, immediately upon
notice by the Noteholder or, without notice, immediately upon the occurrence of
a Default, pay or cause to be paid to the Noteholder the amount of such
Guaranteed Obligations which is then due and payable and unpaid. The obligations
of the Guarantor hereunder shall not be affected by the invalidity,
unenforceability or irrecoverability of any of the Guaranteed Obligations as
against any Obligor. For purposes hereof, the Guaranteed Obligations shall be
due and payable when and as the same shall be due and payable under the terms of
the Securities Purchase Agreement or any other of the Related Agreements
notwithstanding the fact that the collection or enforcement thereof may be
stayed or enjoined under the Bankruptcy Code or other applicable law.
2.2. Continuing Obligation. The Guarantor acknowledges that the
Noteholder has entered into the Securities Purchase Agreement and the other
Related Agreements (and, to the extent that the Noteholder may enter into any
future Related Agreement, will have entered into such agreement) in reliance on
this Section 2 being a continuing irrevocable agreement, and the Guarantor
agrees that its guarantee may not be revoked in whole or in part. The
obligations of the Guarantor hereunder shall terminate when all of the
Guaranteed Obligations has been indefeasibly paid in full in cash and
discharged; provided, however, that:
(a) if a claim is made upon the Noteholder at any time for repayment
or recovery of any amounts or any property received by the Noteholder from
any source on account of any of the Guaranteed Obligations and the
Noteholder repays or returns any amounts or property so received (including
interest thereon to the extent required to be paid by the Noteholder) or
(b) if the Noteholder become liable for any part of such claim by
reason of (i) any judgment or order of any court or administrative
authority having competent jurisdiction, or (ii) any settlement or
compromise of any such claim,
then the Guarantor shall remain liable under this Agreement for the amounts so
repaid or property so returned or the amounts for which the Noteholder becomes
liable (such amounts being deemed part of the Guaranteed Obligations) to the
same extent as if such amounts or property had never been received by the
Noteholder, notwithstanding any termination hereof or the cancellation of any
instrument or agreement evidencing any of the Guaranteed Obligations. Not later
than five days after receipt of notice from the Noteholder, the Guarantor shall
pay to the Noteholder an amount equal to the amount of such repayment or return
for which the Noteholder has so become liable. Payments hereunder by the
Guarantor may be required by the Noteholder on any number of occasions.
2.3. Waivers with Respect to Guaranteed Obligations. Except to the extent
expressly required by the Securities Purchase Agreement, or any other Related
Agreement, the Guarantor waives, to the fullest extent permitted by the
provisions of applicable law, all of the following (including all defenses,
counterclaims and other rights of any nature based upon any of the following):
(a) presentment, demand for payment and protest of nonpayment of any
of the Guaranteed Obligations, and notice of protest, dishonor or
nonperformance;
(b) notice of acceptance of this guarantee and notice that credit has
been extended in reliance on the Guarantor's guarantee of the Guaranteed
Obligations;
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(c) notice of any Default or of any inability to enforce performance
of the obligations of the Company or any other Person with respect to any
Related Agreement, or notice of any acceleration of maturity of any
Guaranteed Obligations;
(d) demand for performance or observance of, and any enforcement of
any provision of the Securities Purchase Agreement, the Guaranteed
Obligations or any other Related Agreement or any pursuit or exhaustion of
rights or remedies under the Security Agreement or against the Company or
any other Person in respect of the Guaranteed Obligations or any
requirement of diligence or promptness on the part of the Noteholder in
connection with any of the foregoing;
(e) any act or omission on the part of the Noteholder which may
impair or prejudice the rights of the Guarantor, including rights to obtain
subrogation, exoneration, contribution, indemnification or any other
reimbursement from the Company or any other Person, or otherwise operate as
a deemed release or discharge;
(f) failure or delay to perfect or continue the perfection of any
Lien under any Security Agreement or any other action which harms or
impairs the value of, or any failure to preserve or protect the value of,
any right, title and interest in and to the items and types of present and
future property on which a Lien is created as set forth in any Security
Agreement;
(g) any statute of limitations or other Legal Requirement which
provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than the obligation of the principal;
(h) any "single action" or "anti-deficiency" law which would
otherwise prevent the Noteholder from bringing any action, including any
claim for a deficiency, against the Guarantor before or after the
Noteholder's commencement or completion of any foreclosure action, whether
judicially, by exercise of power of sale or otherwise, or any other law
which would otherwise require any election of remedies by the Noteholder;
(i) all demands and notices of every kind with respect to the
foregoing; and
(j) to the extent not referred to above, all defenses (other than
payment) which the Company or any other Obligor may now or hereafter have
to the payment of the Guaranteed Obligations, together with all suretyship
defenses, which could otherwise be asserted by the Guarantor.
The Guarantor represents that it has obtained the advice of counsel as to the
extent to which suretyship and other defenses may be
-3-
available to it with respect to its obligations hereunder in the absence of the
waivers contained in this Section 2.3.
No delay or omission on the part of the Noteholder in exercising any right
under this Agreement or any other Related Agreement or under any guarantee of
the Guaranteed Obligations or with respect to any right under the Security
Agreement shall operate as a waiver or relinquishment of such right. No action
which the Noteholder or any Obligor may take or refrain from taking with respect
to the Guaranteed Obligations, including any amendments thereto or modifications
thereof or waivers with respect thereto, shall affect the provisions of this
Agreement or the obligations of the Guarantor hereunder. None of the
Noteholder's rights shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of any Obligor, or by any noncompliance by
any Obligor with the terms, provisions and covenants of the Securities Purchase
Agreement or any other Related Agreement, regardless of any knowledge thereof
which the Noteholder may have or otherwise be charged with.
2.4. The Noteholder's Power to Waive, etc. The Guarantor grants to the
Noteholder full power in its discretion, without notice to or consent of the
Guarantor, such notice and consent being expressly waived to the fullest extent
permitted by applicable law, and without in any way affecting the liability of
the Guarantor under its guarantee hereunder:
(a) To waive compliance with, and any Default under, and to consent
to any amendment to or modification or termination of any terms or
provisions of, or to give any waiver in respect of, the Securities Purchase
Agreement, any other Related Agreement, the Guaranteed Obligations or any
Guarantee thereof (each as from time to time in effect);
(b) To grant any extensions of the Guaranteed Obligations (for any
duration), and any other indulgence with respect thereto, and to effect any
total or partial release (by operation of law or otherwise), discharge,
compromise or settlement with respect to the obligations of any Obligors or
any other Person in respect of the Guaranteed Obligations, whether or not
rights against the Guarantor under this Agreement are reserved in
connection therewith;
(c) To take security in any form for the Guaranteed Obligations, and
to consent to the addition to or the substitution, exchange, release or
other disposition of, or to deal in any other manner with, any part of any
property on which a Lien is created under any Security Agreement whether or
not the property, if any, received upon the exercise of such power shall be
of a character or value the same as or different from the character or
value of any property disposed of, and to obtain, modify or release any
present or future Guarantees of the Guaranteed Obligations and to proceed
-4-
against any property on which a Lien is created under any Security
Agreement or such Guarantees in any order;
(d) To collect or liquidate or realize upon or to refrain from
collecting or liquidating or realizing upon any of the Guaranteed
Obligations or the property on which a Lien is created under the Security
Agreement in any manner.
2.5. Information Regarding the Company, etc. The Guarantor has made such
investigation as it deems desirable of the risks undertaken by it in entering
into this Agreement and is fully satisfied that it understands all such risks.
The Guarantor waives any obligation which may now or hereafter exist on the part
of the Noteholder to inform it of the risks being undertaken by entering into
this Agreement or of any changes in such risks and, from and after the date
hereof, the Guarantor undertakes to keep itself informed of such risks and any
changes therein. The Guarantor expressly waives any duty which may now or
hereafter exist on the part of the Noteholder to disclose to the Guarantor any
matter related to the business, operations, character, collateral, credit,
condition (financial or otherwise), income or prospects of any Obligor or its
Affiliates or their properties or management, whether now or hereafter known by
the Noteholder. The Guarantor represents, warrants and agrees that it assumes
sole responsibility for obtaining from the Company all information concerning
the Securities Purchase Agreement and all other Related Agreements and all other
information as to the Obligors and their Affiliates or their properties or
management as the Guarantor deems necessary or desirable.
2.6. Certain Guarantor Representations. The Guarantor represents that:
(a) it is in its best interest and in pursuit of the purposes for
which it was organized as an integral part of the business conducted and
proposed to be conducted by the Company and its Subsidiaries, and
reasonably necessary and convenient in connection with the conduct of the
business conducted and proposed to be conducted by them, to induce the
Noteholder to enter into the Securities Purchase Agreement and to extend
credit to the Company by making the Guarantee contemplated by this Section
2;
(b) the credit available hereunder will directly or indirectly inure
to its benefit;
(c) by virtue of the foregoing it is receiving at least reasonably
equivalent value from the Noteholder for its Guarantee;
(d) it will not be rendered insolvent as a result of entering into
this Agreement;
-5-
(e) after giving effect to the transactions contemplated by this
Agreement, it will have assets having a fair saleable value in excess of
the amount required to pay its probable liability on its existing debts as
they become absolute and matured;
(f) it has, and will have, access to adequate capital for the conduct
of its business;
(g) it has the ability to pay its debts from time to time incurred in
connection therewith as such debts mature; and
(h) it has been advised by the Noteholder that the Noteholder is
unwilling to enter into certain Amendments to the Securities Purchase
Agreement unless the Guarantee contemplated by this Section 2 is given by
it.
2.7. Subrogation. The Guarantor agrees that, until the Guaranteed
Obligations are paid in full, it will not exercise any right of reimbursement,
subrogation, contribution, offset or other claims against any other Obligor
arising by Contractual Obligation or operation of any Legal Requirement in
connection with any payment made or required to be made by the Guarantor under
this Agreement. After the payment in full of the Guaranteed Obligations, the
Guarantor shall be entitled to exercise against the Company and any other
Obligor all such rights of reimbursement, subrogation, contribution and offset,
and all such other claims, to the fullest extent permitted by law.
2.8. Subordination. The Guarantor covenants and agrees that, after the
occurrence of an Event of Default, all Indebtedness, claims and liabilities then
or thereafter owing by any Obligor to the Guarantor whether arising hereunder or
otherwise are subordinated to the prior payment in full of the Guaranteed
Obligations and are so subordinated as a claim against such Obligor or any of
its assets, whether such claim be in the ordinary course of business or in the
event of voluntary or involuntary liquidation, dissolution, insolvency or
bankruptcy, so that no payment with respect to any such Indebtedness, claim or
liability will be made or received while any Event of Default exists.
2.9. Further Assurances. The Guarantor will, promptly upon the request of
the Noteholder from time to time, execute, acknowledge and deliver, and file and
record, all such instruments, and take all such action, as the Noteholder deems
necessary or advisable to carry out the intent and purposes of this Section 2.
3. Representations and Warranties. In order to induce the Noteholder to
extend credit under the Securities Purchase Agreement, the Guarantor represents
and warrants that:
3.1. Organization and Business. The Guarantor is a duly organized and
validly existing corporation, in good standing under
-6-
the laws of Michigan, with all power and authority, corporate or otherwise,
necessary (a) to enter into and perform this Agreement and each other Related
Agreement to which it is a party and (b) to own its properties and carry on the
business now conducted or proposed to be conducted by it. Certified copies of
the Charter and By-laws of the Guarantor have been previously delivered to the
Noteholder and are correct and complete.
3.2. Authorization and Enforceability. The Guarantor has taken all
corporate action required to execute, deliver and perform this Agreement and
each other Related Agreement to which it is a party. Each of this Agreement and
each other Related Agreement to which the Guarantor is party constitutes the
legal, valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms subject to the effect of Bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
rights and remedies of creditors generally and by general principles of equity,
regardless of whether applied in proceedings in equity or at law, including
limitations imposed by equity on the enforceability of waivers.
3.3. No Legal Obstacle to Agreements. Neither the execution and delivery
of this Agreement or any other Related Agreement, nor the consummation of any
transaction referred to in or contemplated by this Agreement or any other
Related Agreement, nor the fulfillment of the terms hereof or thereof or of any
other Contractual Obligation referred to in this Agreement or any other Related
Agreement, has constituted or resulted, or will constitute or result, in:
(a) Any breach or termination of the provisions of any Contractual
Obligation to which the Guarantor is a party or by which it is bound, or of
the Charter or By-laws of the Guarantor: or
(b) The violation of any Legal Requirement.
No approval, authorization or other action by, or declaration to or filing with,
any Governmental Authority or any other Person is required to be obtained or
made by the Guarantor in connection with the execution, delivery and performance
of this Agreement or any other Related Agreement to which it is party or the
transactions contemplated hereby or thereby.
3.4. Litigation. No Action is pending or, to the knowledge of the
Guarantor, threatened which may involve any material risk of any final judgment,
order or liability which, after giving effect to any applicable insurance, has
resulted, or creates a material risk of resulting, in any material adverse
change in the Guarantor's business, assets, financial condition, income or
prospects or which seeks to enjoin the consummation, or which questions the
validity, of any of the transactions contemplated by this Agreement or any other
Related Agreement. No judgment, decree or order of any Governmental Authority
has been issued against or
-7-
binds the Guarantor which has resulted, or creates a material risk of resulting,
in any material adverse change in the Guarantor's business, assets, financial
condition, income or prospects.
4. Successors and Assigns. The provisions of this Agreement shall inure to
the benefit of the Noteholder and its successors and assigns and shall be
binding upon the Guarantor and its respective successors and assigns. The
Guarantor may not assign its rights or obligations under this Agreement without
the written consent of the Noteholder.
5. Notices. Any notice or other communication in connection with this
Agreement shall be deemed to be given if given in writing (including telex,
telecopy or similar teletransmission) addressed as provided below (or to the
addressee at such other address as the addressee shall have specified by notice
actually received by the addressor), and if either (a) actually delivered in
fully legible form to such address (evidenced in the case of a telex by receipt
of the correct answerback) or (b) in the case of a letter, five business days
shall have elapsed after the same shall have been deposited in the United States
mails, with first-class postage prepaid and registered or certified.
If to the Guarantor, to it care of Numatics, Incorporated, 1450 North
Milford Road, Highland, Michigan 48357, to the attention of the chief financial
officer.
If to the Noteholder, to it at its address specified in or pursuant to
Section 15 of the Securities Purchase Agreement.
6. Venue; Service of Process.
(a) The Guarantor and Noteholder agree that any legal proceeding
arising out of or based upon this Agreement or any Specified Related
Agreement relating to the subject matter hereof or thereof shall be brought
in the state courts of the Commonwealth of Massachusetts or the United
States District Court located in the Commonwealth of Massachusetts, and in
no other court or jurisdiction;
(b) The Guarantor and Noteholder irrevocably submit to the exclusive
jurisdiction of the state courts of The Commonwealth of Massachusetts and
the United States District Court for the District of Massachusetts for the
purpose of any suit, action or other proceeding arising out of or based
upon this Agreement or the subject matter hereof or thereof brought by the
Guarantor or Noteholder or any of their respective successors or assigns;
and
(c) The Guarantor and Noteholder waive to the extent not prohibited
by applicable law, and agrees not to assert, by way of motion, as a defense
or otherwise, in any such proceeding brought in any of the above-named
courts, any claim that they are not subject personally to the jurisdiction
of such court,
-8-
that their property is exempt or immune from attachment or execution, that
such proceeding is brought in an inconvenient forum, that the venue of any
such proceeding is improper, or that this Agreement or any other Related
Agreement, or the subject matter hereof or thereof, may not be enforced in
or by such court.
The Guarantor and Noteholder consent to service of process in any such
proceeding in any manner permitted by Chapter 223A or any other provision of the
General Laws of The Commonwealth of Massachusetts or the rules and regulations
promulgated thereunder and agree that service of process by registered or
certified mail, return receipt requested, at their address specified in or
pursuant to Section 5 is reasonably calculated to give actual notice.
7. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH
CANNOT BE WAIVED, EACH OF THE NOTEHOLDER AND THE GUARANTOR WAIVE, AND COVENANT
THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY
RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE
SECURITIES PURCHASE AGREEMENT OR ANY OTHER RELATED AGREEMENT OR THE SUBJECT
MATTER HEREOF OR THEREOF OR ANY OBLIGATION HEREUNDER OR THEREUNDER OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE NOTEHOLDER OR THE
GUARANTOR IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. THE GUARANTOR
AND NOTEHOLDER ACKNOWLEDGE THAT EACH HAS BEEN INFORMED BY THE OTHER THAT THE
PROVISIONS OF THIS SECTION 7 CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE
OTHER HAS RELIED, IS RELYING AND WILL RELY IN ENTERING INTO THE SECURITIES
PURCHASE AGREEMENT AND ANY OTHER RELATED AGREEMENT TO WHICH IT IS A PARTY, AND
THAT IT HAS REVIEWED THE PROVISIONS OF THIS SECTION 7 WITH ITS COUNSEL. The
Noteholder or the Guarantor may file an original counterpart or a copy of this
Section 7 with any court as written evidence of the consent of the Noteholder
and the Guarantor to the waiver of the right to trial by jury.
8. Subordination. Notwithstanding anything to the contrary herein contained,
if the Guarantor has executed a Guarantee of any Senior Indebtedness (as defined
in Section 5 of Exhibit 7.2A to the Securities Purchase Agreement), or is
otherwise obligated to pay Senior Indebtedness, then (a) the Noteholder shall
take no action under this Agreement unless the Noteholder would be allowed to
take action directly against the Company under the terms of Section 5 of the
Notes, and (b) the obligations of the Guarantor under this Agreement shall
otherwise be subordinated to the Guarantor's obligations under the Senior
Indebtedness on the same terms and to the same extent as the Subordinated
Indebtedness is subordinated to such Senior Indebtedness.
9. General. All covenants, agreements, representations and warranties made in
this Agreement or any other Related Agreement or in certificates delivered
pursuant hereto or thereto shall be
-9-
deemed to have been relied on by The Noteholder, notwithstanding any
investigation made by the Noteholder or its counsel, and shall survive the
execution and delivery to The Noteholder hereof and thereof. The invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of any other term or provision hereof. The headings in this
Agreement are for convenience of reference only and shall not limit, alter or
otherwise affect the meaning hereof. This Agreement and the other Related
Agreements constitute the entire understanding of the parties with respect to
the subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral. This Agreement is
intended to take effect as a sealed document and may be executed in any number
of counterparts, which together shall constitute one instrument. This Agreement
shall be governed by and construed in accordance with the domestic substantive
laws of The Commonwealth of Massachusetts without regard to any choice or
conflict of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction.
10. Amendment and Restatement. This Agreement amends and restates in its
entirety that certain Guarantee dated as of January 3, 1996 executed by the
Guarantor.
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
dated first written above.
MICRO-FILTRATION, INC.
By /s/ Robert P. Robeson
------------------------------------
Title: Secretary
---------------------------
HARVARD PRIVATE CAPITAL HOLDINGS. INC.
By /s/ Timothy R. Palmer
------------------------------------
Title: Managing Director
--------------------------
By /s/ Michard R. Eisenson
------------------------------------
Title: President and CEO
---------------------------
-10-
AMENDED AND RESTATED GUARANTEE
This Amended and Restated Guarantee ("Agreement"), dated as of March 23,
1998, is between Numation, Inc., a Michigan corporation (together with its
successors and assigns, the "Guarantor"), and Harvard Private Capital Holdings,
Inc. (together with its successors and assigns, the "Noteholder"). The parties
agree as follows:
1. Reference to Securities Purchase Agreement; Certain Rules of Construction;
Definitions. Reference is made to the Securities Purchase Agreement dated as of
January 3, 1996, as from time to time in effect, as amended (the "Securities
Purchase Agreement"), between Numatics, Incorporated, a Michigan corporation
(the "Company"), and the Noteholder. Except as the context otherwise explicitly
requires, (a) the capitalized term "Section" refers to sections of this
Agreement, (b) references to a particular Section shall include all subsections
thereof and (c) the word "including" shall be construed as "including without
limitation". Capitalized terms defined in the Securities Purchase Agreement and
not otherwise defined herein are used herein with the meanings so defined. In
addition, the term "Bankruptcy Code" shall mean Title 11 of the United States
Code, and the term "Obligor" shall mean each Person having any obligation or
other liability in respect of the Guaranteed Obligations, including each of the
Company and each Subsidiary of the Company executing a Guarantee Agreement.
2. Guarantee.
2.1. Guarantee. The Guarantor unconditionally guarantees that the
principal of, and interest on the Indebtedness evidenced by, and all other
obligations of the Company in respect of, or arising under or in respect of, the
Notes or to the holders of the Notes, including without limitation all such
obligations arising under Section 14 of the Securities Purchase Agreement
(collectively, the "Guaranteed Obligations"), will be performed and will be paid
in full in cash when due and payable, whether at the stated or accelerated
maturity thereof or otherwise, this guarantee being a guarantee of payment and
not of collectibility and being absolute and in no way conditional or
contingent. In the event any part of the Guaranteed Obligations shall not have
been so paid in full when due and payable, the Guarantor will, immediately upon
notice by the Noteholder or, without notice, immediately upon the occurrence of
a Default, pay or cause to be paid to the Noteholder the amount of such
Guaranteed Obligations which is then due and payable and unpaid. The obligations
of the Guarantor hereunder shall not be affected by the invalidity,
unenforceability or irrecoverability of any of the Guaranteed Obligations as
against any Obligor. For purposes hereof, the Guaranteed Obligations shall be
due and payable when and as the same shall be due and payable under the terms of
the Securities Purchase Agreement or any other of the Rela ted Agreements
notwithstanding the fact that the collection or enforcement thereof may be
stayed or enjoined under the Bankruptcy Code or other applicable law.
2.2. Continuing Obligation. The Guarantor acknowledges that the Noteholder
has entered into the Securities Purchase Agreement and the other Related
Agreements (and, to the extent that the Noteholder may enter into any future
Related Agreement, will have entered into such agreement) in reliance on this
Section 2 being a continuing irrevocable agreement, and the Guarantor agrees
that its guarantee may not be revoked in whole or in part. The obligations of
the Guarantor hereunder shall terminate when all of the Guaranteed Obligations
has been indefeasibly paid in full in cash and discharged; provided, however,
that:
(a) if a claim is made upon the Noteholder at any time for repayment
or recovery of any amounts or any property received by the Noteholder from
any source on account of any of the Guaranteed Obligations and the
Noteholder repays or returns any amounts or property so received (including
interest thereon to the extent required to be paid by the Noteholder) or
(b) if the Noteholder become liable for any part of such claim by
reason of (i) any judgment or order of any court or administrative
authority having competent jurisdiction, or (ii) any settlement or
compromise of any such claim,
then the Guarantor shall remain liable under this Agreement for the amounts so
repaid or property so returned or the amounts for which the Noteholder becomes
liable (such amounts being deemed part of the Guaranteed Obligations) to the
same extent as if such amounts or property had never been received by the
Noteholder, notwithstanding any termination hereof or the cancellation of any
instrument or agreement evidencing any of the Guaranteed Obligations. Not later
than five days after receipt of notice from the Noteholder, the Guarantor shall
pay to the Noteholder an amount equal to the amount of such repayment or return
for which the Noteholder has so become liable. Payments hereunder by the
Guarantor may be required by the Noteholder on any number of occasions.
2.3. Waivers with Respect to Guaranteed Obligations. Except to the extent
expressly required by the Securities Purchase Agreement, or any other Related
Agreement, the Guarantor waives, to the fullest extent permitted by the
provisions of applicable law, all of the following (including all defenses,
counterclaims and other rights of any nature based upon any of the following):
(a) presentment, demand for payment and protest of nonpayment of any
of the Guaranteed Obligations, and notice of protest, dishonor or
nonperformance;
(b) notice of acceptance of this guarantee and notice that credit has
been extended in reliance on the Guarantor's guarantee of the Guaranteed
Obligations;
-2-
(c) notice of any Default or of any inability to enforce performance
of the obligations of the Company or any other Person with respect to any
Related Agreement, or notice of any acceleration of maturity of any
Guaranteed Obligations;
(d) demand for performance or observance of, and any enforcement of
any provision of the Securities Purchase Agreement, the Guaranteed
Obligations or any other Related Agreement or any pursuit or exhaustion of
rights or remedies under the Security Agreement or against the Company or
any other Person in respect of the Guaranteed Obligations or any
requirement of diligence or promptness on the part of the Noteholder in
connection with any of the foregoing;
(e) any act or omission on the part of the Noteholder which may
impair or prejudice the rights of the Guarantor, including rights to obtain
subrogation, exoneration, contribution, indemnification or any other
reimbursement from the Company or any other Person, or otherwise operate as
a deemed release or discharge;
(f) failure or delay to perfect or continue the perfection of any
Lien under any Security Agreement or any other action which harms or
impairs the value of, or any failure to preserve or protect the value of,
any right, title and interest in and to the items and types of present and
future property on which a Lien is created as set forth in any Security
Agreement;
(g) any statute of limitations or other Legal Requirement which
provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than the obligation of the principal;
(h) any "single action" or "anti-deficiency" law which would
otherwise prevent the Noteholder from bringing any action, including any
claim for a deficiency, against the Guarantor before or after the
Noteholder's commencement or completion of any foreclosure action, whether
judicially, by exercise of power of sale or otherwise, or any other law
which would otherwise require any election of remedies by the Noteholder;
(i) all demands and notices of every kind with respect to the
foregoing; and
(j) to the extent not referred to above, all defenses (other than
payment) which the Company or any other Obligor may now or hereafter have
to the payment of the Guaranteed Obligations, together with all suretyship
defenses, which could otherwise be asserted by the Guarantor.
The Guarantor represents that it has obtained the advice of counsel as to the
extent to which suretyship and other defenses may be
-3-
available to it with respect to its obligations hereunder in the absence of the
waivers contained in this Section 2.3.
No delay or omission on the part of the Noteholder in exercising any right
under this Agreement or any other Related Agreement or under any guarantee of
the Guaranteed Obligations or with respect to any right under the Security
Agreement shall operate as a waiver or relinquishment of such right. No action
which the Noteholder or any Obligor may take or refrain from taking with respect
to the Guaranteed Obligations, including any amendments thereto or modifications
thereof or waivers with respect thereto, shall affect the provisions of this
Agreement or the obligations of the Guarantor hereunder. None of the
Noteholder's rights shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of any Obligor, or by any noncompliance by
any Obligor with the terms, provisions and covenants of the Securities Purchase
Agreement or any other Related Agreement, regardless of any knowledge thereof
which the Noteholder may have or otherwise be charged with.
2.4. The Noteholder's Power to Waive, etc. The Guarantor grants to the
Noteholder full power in its discretion, without notice to or consent of the
Guarantor, such notice and consent being expressly waived to the fullest extent
permitted by applicable law, and without in any way affecting the liability of
the Guarantor under its guarantee hereunder:
(a) To waive compliance with, and any Default under, and to consent
to any amendment to or modification or termination of any terms or
provisions of, or to give any waiver in respect of, the Securities Purchase
Agreement, any other Related Agreement, the Guaranteed Obligations or any
Guarantee thereof (each as from time to time in effect);
(b) To grant any extensions of the Guaranteed Obligations (for any
duration), and any other indulgence with respect thereto, and to effect any
total or partial release (by operation of law or otherwise), discharge,
compromise or settlement with respect to the obligations of any Obligors or
any other Person in respect of the Guaranteed Obligations, whether or not
rights against the Guarantor under this Agreement are reserved in
connection therewith;
(c) To take security in any form for the Guaranteed Obligations, and
to consent to the addition to or the substitution, exchange, release or
other disposition of, or to deal in any other manner with, any part of any
property on which a Lien is created under any Security Agreement whether or
not the property, if any, received upon the exercise of such power shall be
of a character or value the same as or different from the character or
value of any property disposed of, and to obtain, modify or release any
present or future Guarantees of the Guaranteed Obligations and to proceed
-4-
against any property on which a Lien is created under any Security
Agreement or such Guarantees in any order;
(d) To collect or liquidate or realize upon or to refrain from
collecting or liquidating or realizing upon any of the Guaranteed
Obligations or the property on which a Lien is created under the Security
Agreement in any manner.
2.5. Information Regarding the Company, etc. The Guarantor has made such
investigation as it deems desirable of the risks undertaken by it in entering
into this Agreement and is fully satisfied that it understands all such risks.
The Guarantor waives any obligation which may now or hereafter exist on the part
of the Noteholder to inform it of the risks being undertaken by entering into
this Agreement or of any changes in such risks and, from and after the date
hereof, the Guarantor undertakes to keep itself informed of such risks and any
changes therein. The Guarantor expressly waives any duty which may now or
hereafter exist on the part of the Noteholder to disclose to the Guarantor any
matter related to the business, operations, character, collateral, credit,
condition (financial or otherwise), income or prospects of any Obligor or its
Affiliates or their properties or management, whether now or hereafter known by
the Noteholder. The Guarantor represents, warrants and agrees that it assumes
sole responsibility for obtaining from the Company all information concerning
the Securities Purchase Agreement and all other Related Agreements and all other
information as to the Obligors and their Affiliates or their properties or
management as the Guarantor deems necessary or desirable.
2.6. Certain Guarantor Representations. The Guarantor represents that:
(a) it is in its best interest and in pursuit of the purposes for
which it was organized as an integral part of the business conducted and
proposed to be conducted by the Company and its Subsidiaries, and
reasonably necessary and convenient in connection with the conduct of the
business conducted and proposed to be conducted by them, to induce the
Noteholder to enter into the Securities Purchase Agreement and to extend
credit to the Company by making the Guarantee contemplated by this Section
2;
(b) the credit available hereunder will directly or indirectly inure
to its benefit;
(c) by virtue of the foregoing it is receiving at least reasonably
equivalent value from the Noteholder for its Guarantee;
(d) it will not be rendered insolvent as a result of entering into
this Agreement;
-5-
(e) after giving effect to the transactions contemplated by this
Agreement, it will have assets having a fair saleable value in excess of
the amount required to pay its probable liability on its existing debts as
they become absolute and matured;
(f) it has, and will have, access to adequate capital for the conduct
of its business;
(g) it has the ability to pay its debts from time to time incurred in
connection therewith as such debts mature; and
(h) it has been advised by the Noteholder that the Noteholder is
unwilling to enter into certain Amendments to the Securities Purchase
Agreement unless the Guarantee contemplated by this Section 2 is given by
it.
2.7. Subrogation. The Guarantor agrees that, until the Guaranteed
Obligations are paid in full, it will not exercise any right of reimbursement,
subrogation, contribution, offset or other claims against any other Obligor
arising by Contractual Obligation or operation of any Legal Requirement in
connection with any payment made or required to be made by the Guarantor under
this Agreement. After the payment in full of the Guaranteed Obligations, the
Guarantor shall be entitled to exercise against the Company and any other
Obligor all such rights of reimbursement, subrogation, contribution and offset,
and all such other claims, to the fullest extent permitted by law.
2.8. Subordination. The Guarantor covenants and agrees that, after the
occurrence of an Event of Default, all Indebtedness, claims and liabilities then
or thereafter owing by any Obligor to the Guarantor whether arising hereunder or
otherwise are subordinated to the prior payment in full of the Guaranteed
Obligations and are so subordinated as a claim against such Obligor or any of
its assets, whether such claim be in the ordinary course of business or in the
event of voluntary or involuntary liquidation, dissolution, insolvency or
bankruptcy, so that no payment with respect to any such Indebtedness, claim or
liability will be made or received while any Event of Default exists.
2.9. Further Assurances. The Guarantor will, promptly upon the request of
the Noteholder from time to time, execute, acknowledge and deliver, and file and
record, all such instruments, and take all such action, as the Noteholder deems
necessary or advisable to carry out the intent and purposes of this Section 2.
3. Representations and Warranties. In order to induce the Noteholder to extend
credit under the Securities Purchase Agreement, the Guarantor represents and
warrants that:
3.1. Organization and Business. The Guarantor is a duly organized and
validly existing corporation, in good standing under
-6-
the laws of Michigan, with all power and authority, corporate or otherwise,
necessary (a) to enter into and perform this Agreement and each other Related
Agreement to which it is a party and (b) to own its properties and carry on the
business now conducted or proposed to be conducted by it. Certified copies of
the Charter and By-laws of the Guarantor have been previously delivered to the
Noteholder and are correct and complete.
3.2. Authorization and Enforceability. The Guarantor has taken all
corporate action required to execute, deliver and perform this Agreement and
each other Related Agreement to which it is a party. Each of this Agreement and
each other Related Agreement to which the Guarantor is party constitutes the
legal, valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms subject to the effect of Bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
rights and remedies of creditors generally and by general principles of equity,
regardless of whether applied in proceedings in equity or at law, including
limitations imposed by equity on the enforceability of waivers.
3.3. No Legal Obstacle to Agreements. Neither the execution and delivery
of this Agreement or any other Related Agreement, nor the consummation of any
transaction referred to in or contemplated by this Agreement or any other
Related Agreement, nor the fulfillment of the terms hereof or thereof or of any
other Contractual Obligation referred to in this Agreement or any other Related
Agreement, has constituted or resulted, or will constitute or result, in:
(a) Any breach or termination of the provisions of any Contractual
Obligation to which the Guarantor is a party or by which it is bound, or of
the Charter or By-laws of the Guarantor: or
(b) The violation of any Legal Requirement.
No approval, authorization or other action by, or declaration to or filing with,
any Governmental Authority or any other Person is required to be obtained or
made by the Guarantor in connection with the execution, delivery and performance
of this Agreement or any other Related Agreement to which it is party or the
transactions contemplated hereby or thereby.
3.4. Litigation. No Action is pending or, to the knowledge of the
Guarantor, threatened which may involve any material risk of any final judgment,
order or liability which, after giving effect to any applicable insurance, has
resulted, or creates a material risk of resulting, in any material adverse
change in the Guarantor's business, assets, financial condition, income or
prospects or which seeks to enjoin the consummation, or which questions the
validity, of any of the transactions contemplated by this Agreement or any other
Related Agreement. No judgment, decree or order of any Governmental Authority
has been issued against or
-7-
binds the Guarantor which has resulted, or creates a material risk of resulting,
in any material adverse change in the Guarantor's business. assets, financial
condition, income or prospects.
4. Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of the Noteholder and its successors and assigns and shall be binding
upon the Guarantor and its respective successors and assigns. The Guarantor may
not assign its rights or obligations under this Agreement without the written
consent of the Noteholder.
5. Notices. Any notice or other communication in connection with this
Agreement shall be deemed to be given if given in writing (including telex,
telecopy or similar teletransmission) addressed as provided below (or to the
addressee at such other address as the addressee shall have specified by notice
actually received by the addressor), and if either (a) actually delivered in
fully legible form to such address (evidenced in the case of a telex by receipt
of the correct answerback) or (b) in the case of a letter, five business days
shall have elapsed after the same shall have been deposited in the United States
mails, with first-class postage prepaid and registered or certified.
If to the Guarantor, to it care of Numatics, Incorporated, 1450 North
Milford Road, Highland, Michigan 48357, to the attention of the chief financial
officer.
If to the Noteholder, to it at its address specified in or pursuant to
Section 15 of the Securities Purchase Agreement.
6. Venue; Service of Process.
(a) The Guarantor and Noteholder agree that any legal proceeding
arising out of or based upon this Agreement or any Specified Related
Agreement relating to the subject matter hereof or thereof shall be brought
in the state courts of the Commonwealth of Massachusetts or the United
States District Court located in the Commonwealth of Massachusetts, and in
no other court or jurisdiction;
(b) The Guarantor and Noteholder irrevocably submit to the exclusive
jurisdiction of the state courts of The Commonwealth of Massachusetts and
the United States District Court for the District of Massachusetts for the
purpose of any suit, action or other proceeding arising out of or based
upon this Agreement or the subject matter hereof or thereof brought by the
Guarantor or Noteholder or any of their respective successors or assigns;
and
(c) The Guarantor and Noteholder waive to the extent not prohibited
by applicable law, and agrees not to assert, by way of motion, as a defense
or otherwise, in any such proceeding brought in any of the above-named
courts, any claim that they are not subject personally to the jurisdiction
of such court,
-8-
that their property is exempt or immune from attachment or execution, that
such proceeding is brought in an inconvenient forum, that the venue of any
such proceeding is improper, or that this Agreement or any other Related
Agreement, or the subject matter hereof or thereof, may not be enforced in
or by such court.
The Guarantor and Noteholder consent to service of process in any such
proceeding in any manner permitted by Chapter 223A or any other provision of the
General Laws of The Commonwealth of Massachusetts or the rules and regulations
promulgated thereunder and agree that service of process by registered or
certified mail, return receipt requested, at their address specified in or
pursuant to Section 5 is reasonably calculated to give actual notice.
7. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH
CANNOT BE WAIVED, EACH OF THE NOTEHOLDER AND THE GUARANTOR WAIVE, AND COVENANT
THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY
RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE
SECURITIES PURCHASE AGREEMENT OR ANY OTHER RELATED AGREEMENT OR THE SUBJECT
MATTER HEREOF OR THEREOF OR ANY OBLIGATION HEREUNDER OR THEREUNDER OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE NOTEHOLDER OR THE
GUARANTOR IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. THE GUARANTOR
AND NOTEHOLDER ACKNOWLEDGE THAT EACH HAS BEEN INFORMED BY THE OTHER THAT THE
PROVISIONS OF THIS SECTION 7 CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE
OTHER HAS RELIED, IS RELYING AND WILL RELY IN ENTERING INTO THE SECURITIES
PURCHASE AGREEMENT AND ANY OTHER RELATED AGREEMENT TO WHICH IT IS A PARTY, AND
THAT IT HAS REVIEWED THE PROVISIONS OF THIS SECTION 7 WITH ITS COUNSEL. The
Noteholder or the Guarantor may file an original counterpart or a copy of this
Section 7 with any court as written evidence of the consent of the Noteholder
and the Guarantor to the waiver of the right to trial by jury.
8. Subordination. Notwithstanding anything to the contrary herein contained,
if the Guarantor has executed a Guarantee of any Senior Indebtedness (as defined
in Section 5 of Exhibit 7.2A to the Securities Purchase Agreement), or is
otherwise obligated to pay Senior Indebtedness, then (a) the Noteholder shall
take no action under this Agreement unless the Noteholder would be allowed to
take action directly against the Company under the terms of Section 5 of the
Notes, and (b) the obligations of the Guarantor under this Agreement shall
otherwise be subordinated to the Guarantor's obligations under the Senior
Indebtedness on the same terms and to the same extent as the Subordinated
Indebtedness is subordinated to such Senior Indebtedness.
9. General. All covenants, agreements, representations and warranties made in
this Agreement or any other Related Agreement or in certificates delivered
pursuant hereto or thereto shall be
-9-
deemed to have been relied on by The Noteholder, notwithstanding any
investigation made by the Noteholder or its counsel, and shall survive the
execution and delivery to The Noteholder hereof and thereof. The invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of any other term or provision hereof. The headings in this
Agreement are for convenience of reference only and shall not limit, alter or
otherwise affect the meaning hereof. This Agreement and the other Related
Agreements constitute the entire understanding of the parties with respect to
the subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral. This Agreement is
intended to take effect as a sealed document and may be executed in any number
of counterparts, which together shall constitute one instrument. This Agreement
shall be governed by and construed in accordance with the domestic substantive
laws of The Commonwealth of Massachusetts without regard to any choice or
conflict of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction.
10. Amendment and Restatement. This Agreement amends and restates in its
entirety that certain Guarantee dated as of January 3, 1996 executed by the
Guarantor.
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
dated first written above.
NUMATION, INC.
By /s/ Robert P. Robeson
----------------------------------
Title: Secretary
-------------------------
HARVARD PRIVATE CAPITAL HOLDINGS. INC.
By /s/ Timothy R. Palmer
----------------------------------
Title: Managing Director
-------------------------
By /s/ Michael R. Eisenson
----------------------------------
Title: President and CEO
-------------------------
-10-
AMENDED AND RESTATED GUARANTEE
This Amended and Restated Guarantee ("Agreement"), dated as of March 23,
1998, is between Numatech, Inc., a Michigan corporation (together with its
successors and assigns, the "Guarantor"), and Harvard Private Capital Holdings,
Inc. (together with its successors and assigns, the "Noteholder"). The parties
agree as follows:
1. Reference to Securities Purchase Agreement; Certain Rules of Construction;
Definitions. Reference is made to the Securities Purchase Agreement dated as of
January 3, 1996, as from time to time in effect, as amended (the "Securities
Purchase Agreement"), between Numatics, Incorporated, a Michigan corporation
(the "Company"), and the Noteholder. Except as the context otherwise explicitly
requires, (a) the capitalized term "Section" refers to sections of this
Agreement, (b) references to a particular Section shall include all subsections
thereof and (c) the word "including" shall be construed as "including without
limitation". Capitalized terms defined in the Securities Purchase Agreement and
not otherwise defined herein are used herein with the meanings so defined. In
addition, the term "Bankruptcy Code" shall mean Title 11 of the United States
Code, and the term "Obligor" shall mean each Person having any obligation or
other liability in respect of the Guaranteed Obligations, including each of the
Company and each Subsidiary of the Company executing a Guarantee Agreement.
2. Guarantee.
2.1. Guarantee. The Guarantor unconditionally guarantees that the
principal of, and interest on the Indebtedness evidenced by, and all other
obligations of the Company in respect of, or arising under or in respect of, the
Notes or to the holders of the Notes, including without limitation all such
obligations arising under Section 14 of the Securities Purchase Agreement
(collectively, the "Guaranteed Obligations"), will be performed and will be paid
in full in cash when due and payable, whether at the stated or accelerated
maturity thereof or otherwise, this guarantee being a guarantee of payment and
not of collectibility and being absolute and in no way conditional or
contingent. In the event any part of the Guaranteed Obligations shall not have
been so paid in full when due and payable, the Guarantor will, immediately upon
notice by the Noteholder or, without notice, immediately upon the occurrence of
a Default, pay or cause to be paid to the Noteholder the amount of such
Guaranteed Obligations which is then due and payable and unpaid. The obligations
of the Guarantor hereunder shall not be affected by the invalidity,
unenforceability or irrecoverability of any of the Guaranteed Obligations as
against any Obligor. For purposes hereof, the Guaranteed Obligations shall be
due and payable when and as the same shall be due and payable under the terms of
the Securities Purchase Agreement or any other of the Related Agreements
notwithstanding the fact that the collection or enforcement thereof may be
stayed or enjoined under the Bankruptcy Code or other applicable law.
2.2. Continuing Obligation. The Guarantor acknowledges that the Noteholder
has entered into the Securities Purchase Agreement and the other Related
Agreements (and, to the extent that the Noteholder may enter into any future
Related Agreement, will have entered into such agreement) in reliance on this
Section 2 being a continuing irrevocable agreement, and the Guarantor agrees
that its guarantee may not be revoked in whole or in part. The obligations of
the Guarantor hereunder shall terminate when all of the Guaranteed Obligations
has been indefeasibly paid in full in cash and discharged; provided, however,
that:
(a) if a claim is made upon the Noteholder at any time for repayment
or recovery of any amounts or any property received by the Noteholder from
any source on account of any of the Guaranteed Obligations and the
Noteholder repays or returns any amounts or property so received (including
interest thereon to the extent required to be paid by the Noteholder) or
(b) if the Noteholder become liable for any part of such claim by
reason of (i) any judgment or order of any court or administrative
authority having competent jurisdiction, or (ii) any settlement or
compromise of any such claim,
then the Guarantor shall remain liable under this Agreement for the amounts so
repaid or property so returned or the amounts for which the Noteholder becomes
liable (such amounts being deemed part of the Guaranteed Obligations) to the
same extent as if such amounts or property had never been received by the
Noteholder, notwithstanding any termination hereof or the cancellation of any
instrument or agreement evidencing any of the Guaranteed Obligations. Not later
than five days after receipt of notice from the Noteholder, the Guarantor shall
pay to the Noteholder an amount equal to the amount of such repayment or return
for which the Noteholder has so become liable. Payments hereunder by the
Guarantor may be required by the Noteholder on any number of occasions.
2.3. Waivers with Respect to Guaranteed Obligations. Except to the extent
expressly required by the Securities Purchase Agreement, or any other Related
Agreement, the Guarantor waives, to the fullest extent permitted by the
provisions of applicable law, all of the following (including all defenses,
counterclaims and other rights of any nature based upon any of the following):
(a) presentment, demand for payment and protest of nonpayment of any
of the Guaranteed Obligations, and notice of protest, dishonor or
nonperformance;
(b) notice of acceptance of this guarantee and notice that credit has
been extended in reliance on the Guarantor's guarantee of the Guaranteed
Obligations;
-2-
(c) notice of any Default or of any inability to enforce performance
of the obligations of the Company or any other Person with respect to any
Related Agreement, or notice of any acceleration of maturity of any
Guaranteed Obligations;
(d) demand for performance or observance of, and any enforcement of
any provision of the Securities Purchase Agreement, the Guaranteed
Obligations or any other Related Agreement or any pursuit or exhaustion of
rights or remedies under the Security Agreement or against the Company or
any other Person in respect of the Guaranteed Obligations or any
requirement of diligence or promptness on the part of the Noteholder in
connection with any of the foregoing;
(e) any act or omission on the part of the Noteholder which may
impair or prejudice the rights of the Guarantor, including rights to obtain
subrogation, exoneration, contribution, indemnification or any other
reimbursement from the Company or any other Person, or otherwise operate as
a deemed release or discharge;
(f) failure or delay to perfect or continue the perfection of any
Lien under any Security Agreement or any other action which harms or
impairs the value of, or any failure to preserve or protect the value of,
any right, title and interest in and to the items and types of present and
future property on which a Lien is created as set forth in any Security
Agreement;
(g) any statute of limitations or other Legal Requirement which
provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than the obligation of the principal;
(h) any "single action" or "anti-deficiency" law which would
otherwise prevent the Noteholder from bringing any action, including any
claim for a deficiency, against the Guarantor before or after the
Noteholder's commencement or completion of any foreclosure action, whether
judicially, by exercise of power of sale or otherwise, or any other law
which would otherwise require any election of remedies by the Noteholder;
(i) all demands and notices of every kind with respect to the
foregoing; and
(j) to the extent not referred to above, all defenses (other than
payment) which the Company or any other Obligor may now or hereafter have
to the payment of the Guaranteed Obligations, together with all suretyship
defenses, which could otherwise be asserted by the Guarantor.
The Guarantor represents that it has obtained the advice of counsel as to the
extent to which suretyship and other defenses may be
-3-
available to it with respect to its obligations hereunder in the absence of the
waivers contained in this Section 2.3.
No delay or omission on the part of the Noteholder in exercising any right
under this Agreement or any other Related Agreement or under any guarantee of
the Guaranteed Obligations or with respect to any right under the Security
Agreement shall operate as a waiver or relinquishment of such right. No action
which the Noteholder or any Obligor may take or refrain from taking with respect
to the Guaranteed Obligations, including any amendments thereto or modifications
thereof or waivers with respect thereto, shall affect the provisions of this
Agreement or the obligations of the Guarantor hereunder. None of the
Noteholder's rights shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of any Obligor, or by any noncompliance by
any Obligor with the terms, provisions and covenants of the Securities Purchase
Agreement or any other Related Agreement, regardless of any knowledge thereof
which the Noteholder may have or otherwise be charged with.
2.4. The Noteholder's Power to Waive, etc. The Guarantor grants to the
Noteholder full power in its discretion, without notice to or consent of the
Guarantor, such notice and consent being expressly waived to the fullest extent
permitted by applicable law, and without in any way affecting the liability of
the Guarantor under its guarantee hereunder:
(a) To waive compliance with, and any Default under, and to consent
to any amendment to or modification or termination of any terms or
provisions of, or to give any waiver in respect of, the Securities Purchase
Agreement, any other Related Agreement, the Guaranteed Obligations or any
Guarantee thereof (each as from time to time in effect);
(b) To grant any extensions of the Guaranteed Obligations (for any
duration), and any other indulgence with respect thereto, and to effect any
total or partial release (by operation of law or otherwise), discharge,
compromise or settlement with respect to the obligations of any Obligors or
any other Person in respect of the Guaranteed Obligations, whether or not
rights against the Guarantor under this Agreement are reserved in
connection therewith;
(c) To take security in any form for the Guaranteed Obligations, and
to consent to the addition to or the substitution, exchange, release or
other disposition of, or to deal in any other manner with, any part of any
property on which a Lien is created under any Security Agreement whether or
not the property, if any, received upon the exercise of such power shall be
of a character or value the same as or different from the character or
value of any property disposed of, and to obtain, modify or release any
present or future Guarantees of the Guaranteed Obligations and to proceed
-4-
against any property on which a Lien is created under any Security
Agreement or such Guarantees in any order;
(d) To collect or liquidate or realize upon or to refrain from
collecting or liquidating or realizing upon any of the Guaranteed
Obligations or the property on which a Lien is created under the Security
Agreement in any manner.
2.5. Information Regarding the Company, etc. The Guarantor has made such
investigation as it deems desirable of the risks undertaken by it in entering
into this Agreement and is fully satisfied that it understands all such risks.
The Guarantor waives any obligation which may now or hereafter exist on the part
of the Noteholder to inform it of the risks being undertaken by entering into
this Agreement or of any changes in such risks and, from and after the date
hereof, the Guarantor undertakes to keep itself informed of such risks and any
changes therein. The Guarantor expressly waives any duty which may now or
hereafter exist on the part of the Noteholder to disclose to the Guarantor any
matter related to the business, operations, character, collateral, credit,
condition (financial or otherwise), income or prospects of any Obligor or its
Affiliates or their properties or management, whether now or hereafter known by
the Noteholder. The Guarantor represents, warrants and agrees that it assumes
sole responsibility for obtaining from the Company all information concerning
the Securities Purchase Agreement and all other Related Agreements and all other
information as to the Obligors and their Affiliates or their properties or
management as the Guarantor deems necessary or desirable.
2.6. Certain Guarantor Representations. The Guarantor represents that:
(a) it is in its best interest and in pursuit of the purposes for
which it was organized as an integral part of the business conducted and
proposed to be conducted by the Company and its Subsidiaries, and
reasonably necessary and convenient in connection with the conduct of the
business conducted and proposed to be conducted by them, to induce the
Noteholder to enter into the Securities Purchase Agreement and to extend
credit to the Company by making the Guarantee contemplated by this Section
2;
(b) the credit available hereunder will directly or indirectly inure
to its benefit;
(c) by virtue of the foregoing it is receiving at least reasonably
equivalent value from the Noteholder for its Guarantee;
(d) it will not be rendered insolvent as a result of entering into
this Agreement;
-5-
(e) after giving effect to the transactions contemplated by this
Agreement, it will have assets having a fair saleable value in excess of
the amount required to pay its probable liability on its existing debts as
they become absolute and matured;
(f) it has, and will have, access to adequate capital for the conduct
of its business;
(g) it has the ability to pay its debts from time to time incurred in
connection therewith as such debts mature; and
(h) it has been advised by the Noteholder that the Noteholder is
unwilling to enter into certain Amendments to the Securities Purchase
Agreement unless the Guarantee contemplated by this Section 2 is given by
it.
2.7. Subrogation. The Guarantor agrees that, until the Guaranteed
Obligations are paid in full, it will not exercise any right of reimbursement,
subrogation, contribution, offset or other claims against any other Obligor
arising by Contractual Obligation or operation of any Legal Requirement in
connection with any payment made or required to be made by the Guarantor under
this Agreement. After the payment in full of the Guaranteed Obligations, the
Guarantor shall be entitled to exercise against the Company and any other
Obligor all such rights of reimbursement, subrogation, contribution and offset,
and all such other claims, to the fullest extent permitted by law.
2.8. Subordination. The Guarantor covenants and agrees that, after the
occurrence of an Event of Default, all Indebtedness, claims and liabilities then
or thereafter owing by any Obligor to the Guarantor whether arising hereunder or
otherwise are subordinated to the prior payment in full of the Guaranteed
Obligations and are so subordinated as a claim against such Obligor or any of
its assets, whether such claim be in the ordinary course of business or in the
event of voluntary or involuntary liquidation, dissolution, insolvency or
bankruptcy, so that no payment with respect to any such Indebtedness, claim or
liability will be made or received while any Event of Default exists.
2.9. Further Assurances. The Guarantor will, promptly upon the request of
the Noteholder from time to time, execute, acknowledge and deliver, and file and
record, all such instruments, and take all such action, as the Noteholder deems
necessary or advisable to carry out the intent and purposes of this Section 2.
3. Representations and Warranties. In order to induce the Noteholder to extend
credit under the Securities Purchase Agreement, the Guarantor represents and
warrants that:
3.1. Organization and Business. The Guarantor is a duly organized and
validly existing corporation, in good standing under
-6-
the laws of Michigan, with all power and authority, corporate or otherwise,
necessary (a) to enter into and perform this Agreement and each other Related
Agreement to which it is a party and (b) to own its properties and carry on the
business now conducted or proposed to be conducted by it. Certified copies of
the Charter and By-laws of the Guarantor have been previously delivered to the
Noteholder and are correct and complete.
3.2. Authorization and Enforceability. The Guarantor has taken all
corporate action required to execute, deliver and perform this Agreement and
each other Related Agreement to which it is a party. Each of this Agreement and
each other Related Agreement to which the Guarantor is party constitutes the
legal, valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms subject to the effect of Bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
rights and remedies of creditors generally and by general principles of equity,
regardless of whether applied in proceedings in equity or at law, including
limitations imposed by equity on the enforceability of waivers.
3.3. No Legal Obstacle to Agreements. Neither the execution and delivery
of this Agreement or any other Related Agreement, nor the consummation of any
transaction referred to in or contemplated by this Agreement or any other
Related Agreement, nor the fulfillment of the terms hereof or thereof or of any
other Contractual Obligation referred to in this Agreement or any other Related
Agreement, has constituted or resulted, or will constitute or result, in:
(a) Any breach or termination of the provisions of any Contractual
Obligation to which the Guarantor is a party or by which it is bound, or of
the Charter or By-laws of the Guarantor: or
(b) The violation of any Legal Requirement.
No approval, authorization or other action by, or declaration to or filing with,
any Governmental Authority or any other Person is required to be obtained or
made by the Guarantor in connection with the execution, delivery and performance
of this Agreement or any other Related Agreement to which it is party or the
transactions contemplated hereby or thereby.
3.4. Litigation. No Action is pending or, to the knowledge of the
Guarantor, threatened which may involve any material risk of any final judgment,
order or liability which, after giving effect to any applicable insurance, has
resulted, or creates a material risk of resulting, in any material adverse
change in the Guarantor's business, assets, financial condition, income or
prospects or which seeks to enjoin the consummation, or which questions the
validity, of any of the transactions contemplated by this Agreement or any other
Related Agreement. No judgment, decree or order of any Governmental Authority
has been issued against or
-7-
binds the Guarantor which has resulted, or creates a material risk of resulting,
in any material adverse change in the Guarantor's business, assets, financial
condition, income or prospects.
4. Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of the Noteholder and its successors and assigns and shall be binding
upon the Guarantor and its respective successors and assigns. The Guarantor may
not assign its rights or obligations under this Agreement without the written
consent of the Noteholder.
5. Notices. Any notice or other communication in connection with this
Agreement shall be deemed to be given if given in writing (including telex,
telecopy or similar teletransmission) addressed as provided below (or to the
addressee at such other address as the addressee shall have specified by notice
actually received by the addressor), and if either (a) actually delivered in
fully legible form to such address (evidenced in the case of a telex by receipt
of the correct answerback) or (b) in the case of a letter, five business days
shall have elapsed after the same shall have been deposited in the United States
mails, with first-class postage prepaid and registered or certified.
If to the Guarantor, to it care of Numatics, Incorporated, 1450 North
Milford Road, Highland, Michigan 48357, to the attention of the chief financial
officer.
If to the Noteholder, to it at its address specified in or pursuant to
Section 15 of the Securities Purchase Agreement.
6. Venue; Service of Process.
(a) The Guarantor and Noteholder agree that any legal proceeding
arising out of or based upon this Agreement or any Specified Related
Agreement relating to the subject matter hereof or thereof shall be brought
in the state courts of the Commonwealth of Massachusetts or the United
States District Court located in the Commonwealth of Massachusetts, and in
no other court or jurisdiction;
(b) The Guarantor and Noteholder irrevocably submit to the exclusive
jurisdiction of the state courts of The Commonwealth of Massachusetts and
the United States District Court for the District of Massachusetts for the
purpose of any suit, action or other proceeding arising out of or based
upon this Agreement or the subject matter hereof or thereof brought by the
Guarantor or Noteholder or any of their respective successors or assigns;
and
(c) The Guarantor and Noteholder waive to the extent not prohibited
by applicable law, and agrees not to assert, by way of motion, as a defense
or otherwise, in any such proceeding brought in any of the above-named
courts, any claim that they are not subject personally to the jurisdiction
of such court,
-8-
that their property is exempt or immune from attachment or execution, that
such proceeding is brought in an inconvenient forum, that the venue of any
such proceeding is improper, or that this Agreement or any other Related
Agreement, or the subject matter hereof or thereof, may not be enforced in
or by such court.
The Guarantor and Noteholder consent to service of process in any such
proceeding in any manner permitted by Chapter 223A or any other provision of the
General Laws of The Commonwealth of Massachusetts or the rules and regulations
promulgated thereunder and agree that service of process by registered or
certified mail, return receipt requested, at their address specified in or
pursuant to Section 5 is reasonably calculated to give actual notice.
7. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH
CANNOT BE WAIVED, EACH OF THE NOTEHOLDER AND THE GUARANTOR WAIVE, AND COVENANT
THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY
RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE
SECURITIES PURCHASE AGREEMENT OR ANY OTHER RELATED AGREEMENT OR THE SUBJECT
MATTER HEREOF OR THEREOF OR ANY OBLIGATION HEREUNDER OR THEREUNDER OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE NOTEHOLDER OR THE
GUARANTOR IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. THE GUARANTOR
AND NOTEHOLDER ACKNOWLEDGE THAT EACH HAS BEEN INFORMED BY THE OTHER THAT THE
PROVISIONS OF THIS SECTION 7 CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE
OTHER HAS RELIED, IS RELYING AND WILL RELY IN ENTERING INTO THE SECURITIES
PURCHASE AGREEMENT AND ANY OTHER RELATED AGREEMENT TO WHICH IT IS A PARTY, AND
THAT IT HAS REVIEWED THE PROVISIONS OF THIS SECTION 7 WITH ITS COUNSEL. The
Noteholder or the Guarantor may file an original counterpart or a copy of this
Section 7 with any court as written evidence of the consent of the Noteholder
and the Guarantor to the waiver of the right to trial by jury.
8. Subordination. Notwithstanding anything to the contrary herein contained,
if the Guarantor has executed a Guarantee of any Senior Indebtedness (as defined
in Section 5 of Exhibit 7.2A to the Securities Purchase Agreement), or is
otherwise obligated to pay Senior Indebtedness, then (a) the Noteholder shall
take no action under this Agreement unless the Noteholder would be allowed to
take action directly against the Company under the terms of Section 5 of the
Notes, and (b) the obligations of the Guarantor under this Agreement shall
otherwise be subordinated to the Guarantor's obligations under the Senior
Indebtedness on the same terms and to the same extent as the Subordinated
Indebtedness is subordinated to such Senior Indebtedness.
9. General. All covenants, agreements, representations and warranties made in
this Agreement or any other Related Agreement or in certificates delivered
pursuant hereto or thereto shall be
-9-
deemed to have been relied on by The Noteholder, notwithstanding any
investigation made by the Noteholder or its counsel, and shall survive the
execution and delivery to The Noteholder hereof and thereof. The invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of any other term or provision hereof. The headings in this
Agreement are for convenience of reference only and shall not limit, alter or
otherwise affect the meaning hereof. This Agreement and the other Related
Agreements constitute the entire understanding of the parties with respect to
the subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral. This Agreement is
intended to take effect as a sealed document and may be executed in any number
of counterparts, which together shall constitute one instrument. This Agreement
shall be governed by and construed in accordance with the domestic substantive
laws of The Commonwealth of Massachusetts without regard to any choice or
conflict of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction.
10. Amendment and Restatement. This Agreement amends and restates in its
entirety that certain Guarantee dated as of January 3, 1996 executed by the
Guarantor.
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
dated first written above.
NUMATECH, INC.
By /s/ Robert P. Robeson
--------------------------------------
Title: Secretary
HARVARD PRIVATE CAPITAL HOLDINGS, INC.
By /s/ Timothy R. Palmer
--------------------------------------
Title: Managing Director
By /s/ Michael R. Eisenson
--------------------------------------
Title: President and CEO
-10-
AMENDED AND RESTATED GUARANTEE
This Amended and Restated Guarantee ("Agreement"), dated as of March 23,
1998, is between Ultra Air Products, Inc., a Michigan corporation (together with
its successors and assigns, the "Guarantor"), and Harvard Private Capital
Holdings, Inc. (together with its successors and assigns, the "Noteholder"). The
parties agree as follows:
1. Reference to Securities Purchase Agreement; Certain Rules of Construction;
Definitions. Reference is made to the Securities Purchase Agreement dated as of
January 3, 1996, as from time to time in effect, as amended (the "Securities
Purchase Agreement"), between Numatics, Incorporated, a Michigan corporation
(the "Company"), and the Noteholder. Except as the context otherwise explicitly
requires, (a) the capitalized term "Section" refers to sections of this
Agreement, (b) references to a particular Section shall include all subsections
thereof and (c) the word "including" shall be construed as "including without
limitation". Capitalized terms defined in the Securities Purchase Agreement and
not otherwise defined herein are used herein with the meanings so defined. In
addition, the term "Bankruptcy Code" shall mean Title 11 of the United States
Code, and the term "Obligor" shall mean each Person having any obligation or
other liability in respect of the Guaranteed Obligations, including each of the
Company and each Subsidiary of the Company executing a Guarantee Agreement.
2. Guarantee.
2.1. Guarantee. The Guarantor unconditionally guarantees that the
principal of, and interest on the Indebtedness evidenced by, and all other
obligations of the Company in respect of, or arising under or in respect of, the
Notes or to the holders of the Notes, including without limitation all such
obligations arising under Section 14 of the Securities Purchase Agreement
(collectively, the "Guaranteed Obligations"), will be performed and will be paid
in full in cash when due and payable, whether at the stated or accelerated
maturity thereof or otherwise, this guarantee being a guarantee of payment and
not of collectibility and being absolute and in no way conditional or
contingent. In the event any part of the Guaranteed Obligations shall not have
been so paid in full when due and payable, the Guarantor will, immediately upon
notice by the Noteholder or, without notice, immediately upon the occurrence of
a Default, pay or cause to be paid to the Noteholder the amount of such
Guaranteed Obligations which is then due and payable and unpaid. The obligations
of the Guarantor hereunder shall not be affected by the invalidity,
unenforceability or irrecoverability of any of the Guaranteed Obligations as
against any Obligor. For purposes hereof, the Guaranteed Obligations shall be
due and payable when and as the same shall be due and payable under the terms of
the Securities Purchase Agreement or any other of the Related Agreements
notwithstanding the fact that the collection or enforcement thereof may be
stayed or enjoined under the Bankruptcy Code or other applicable law.
2.2. Continuing Obligation. The Guarantor acknowledges that the Noteholder
has entered into the Securities Purchase Agreement and the other Related
Agreements (and, to the extent that the Noteholder may enter into any future
Related Agreement, will have entered into such agreement) in reliance on this
Section 2 being a continuing irrevocable agreement, and the Guarantor agrees
that its guarantee may not be revoked in whole or in part. The obligations of
the Guarantor hereunder shall terminate when all of the Guaranteed Obligations
has been indefeasibly paid in full in cash and discharged; provided, however,
that:
(a) if a claim is made upon the Noteholder at any time for repayment
or recovery of any amounts or any property received by the Noteholder from
any source on account of any of the Guaranteed Obligations and the
Noteholder repays or returns any amounts or property so received (including
interest thereon to the extent required to be paid by the Noteholder) or
(b) if the Noteholder become liable for any part of such claim by
reason of (i) any judgment or order of any court or administrative
authority having competent jurisdiction, or (ii) any settlement or
compromise of any such claim,
then the Guarantor shall remain liable under this Agreement for the amounts so
repaid or property so returned or the amounts for which the Noteholder becomes
liable (such amounts being deemed part of the Guaranteed Obligations) to the
same extent as if such amounts or property had never been received by the
Noteholder, notwithstanding any termination hereof or the cancellation of any
instrument or agreement evidencing any of the Guaranteed Obligations. Not later
than five days after receipt of notice from the Noteholder, the Guarantor shall
pay to the Noteholder an amount equal to the amount of such repayment or return
for which the Noteholder has so become liable. Payments hereunder by the
Guarantor may be required by the Noteholder on any number of occasions.
2.3. Waivers with Respect to Guaranteed Obligations. Except to the extent
expressly required by the Securities Purchase Agreement, or any other Related
Agreement, the Guarantor waives, to the fullest extent permitted by the
provisions of applicable law, all of the following (including all defenses,
counterclaims and other rights of any nature based upon any of the following):
(a) presentment, demand for payment and protest of nonpayment of any
of the Guaranteed Obligations, and notice of protest, dishonor or
nonperformance;
(b) notice of acceptance of this guarantee and notice that credit has
been extended in reliance on the Guarantor's guarantee of the Guaranteed
Obligations;
-2-
(c) notice of any Default or of any inability to enforce performance
of the obligations of the Company or any other Person with respect to any
Related Agreement, or notice of any acceleration of maturity of any
Guaranteed Obligations;
(d) demand for performance or observance of, and any enforcement of
any provision of the Securities Purchase Agreement, the Guaranteed
Obligations or any other Related Agreement or any pursuit or exhaustion of
rights or remedies under the Security Agreement or against the Company or
any other Person in respect of the Guaranteed Obligations or any
requirement of diligence or promptness on the part of the Noteholder in
connection with any of the foregoing;
(e) any act or omission on the part of the Noteholder which may
impair or prejudice the rights of the Guarantor, including rights to obtain
subrogation, exoneration, contribution, indemnification or any other
reimbursement from the Company or any other Person, or otherwise operate as
a deemed release or discharge;
(f) failure or delay to perfect or continue the perfection of any
Lien under any Security Agreement or any other action which harms or
impairs the value of, or any failure to preserve or protect the value of,
any right, title and interest in and to the items and types of present and
future property on which a Lien is created as set forth in any Security
Agreement;
(g) any statute of limitations or other Legal Requirement which
provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than the obligation of the principal;
(h) any "single action" or "anti-deficiency" law which would
otherwise prevent the Noteholder from bringing any action, including any
claim for a deficiency, against the Guarantor before or after the
Noteholder's commencement or completion of any foreclosure action, whether
judicially, by exercise of power of sale or otherwise, or any other law
which would otherwise require any election of remedies by the Noteholder;
(i) all demands and notices of every kind with respect to the
foregoing; and
(j) to the extent not referred to above, all defenses (other than
payment) which the Company or any other Obligor may now or hereafter have
to the payment of the Guaranteed Obligations, together with all suretyship
defenses, which could otherwise be asserted by the Guarantor.
The Guarantor represents that it has obtained the advice of counsel as to the
extent to which suretyship and other defenses may be
-3-
available to it with respect to its obligations hereunder in the absence of the
waivers contained in this Section 2.3.
No delay or omission on the part of the Noteholder in exercising any right
under this Agreement or any other Related Agreement or under any guarantee of
the Guaranteed Obligations or with respect to any right under the Security
Agreement shall operate as a waiver or relinquishment of such right. No action
which the Noteholder or any Obligor may take or refrain from taking with respect
to the Guaranteed Obligations, including any amendments thereto or modifications
thereof or waivers with respect thereto, shall affect the provisions of this
Agreement or the obligations of the Guarantor hereunder. None of the
Noteholder's rights shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of any Obligor, or by any noncompliance by
any Obligor with the terms, provisions and covenants of the Securities Purchase
Agreement or any other Related Agreement, regardless of any knowledge thereof
which the Noteholder may have or otherwise be charged with.
2.4. The Noteholder's Power to Waive, etc. The Guarantor grants to the
Noteholder full power in its discretion, without notice to or consent of the
Guarantor, such notice and consent being expressly waived to the fullest extent
permitted by applicable law, and without in any way affecting the liability of
the Guarantor under its guarantee hereunder:
(a) To waive compliance with, and any Default under, and to consent
to any amendment to or modification or termination of any terms or
provisions of, or to give any waiver in respect of, the Securities Purchase
Agreement, any other Related Agreement, the Guaranteed Obligations or any
Guarantee thereof (each as from time to time in effect);
(b) To grant any extensions of the Guaranteed Obligations (for any
duration), and any other indulgence with respect thereto, and to effect any
total or partial release (by operation of law or otherwise), discharge,
compromise or settlement with respect to the obligations of any Obligors or
any other Person in respect of the Guaranteed Obligations, whether or not
rights against the Guarantor under this Agreement are reserved in
connection therewith;
(c) To take security in any form for the Guaranteed Obligations, and
to consent to the addition to or the substitution, exchange, release or
other disposition of, or to deal in any other manner with, any part of any
property on which a Lien is created under any Security Agreement whether or
not the property, if any, received upon the exercise of such power shall be
of a character or value the same as or different from the character or
value of any property disposed of, and to obtain, modify or release any
present or future Guarantees of the Guaranteed Obligations and to proceed
-4-
against any property on which a Lien is created under any Security
Agreement or such Guarantees in any order;
(d) To collect or liquidate or realize upon or to refrain from
collecting or liquidating or realizing upon any of the Guaranteed
Obligations or the property on which a Lien is created under the Security
Agreement in any manner.
2.5. Information Regarding the Company, etc. The Guarantor has made such
investigation as it deems desirable of the risks undertaken by it in entering
into this Agreement and is fully satisfied that it understands all such risks.
The Guarantor waives any obligation which may now or hereafter exist on the part
of the Noteholder to inform it of the risks being undertaken by entering into
this Agreement or of any changes in such risks and, from and after the date
hereof, the Guarantor undertakes to keep itself informed of such risks and any
changes therein. The Guarantor expressly waives any duty which may now or
hereafter exist on the part of the Noteholder to disclose to the Guarantor any
matter related to the business, operations, character, collateral, credit,
condition (financial or otherwise), income or prospects of any Obligor or its
Affiliates or their properties or management, whether now or hereafter known by
the Noteholder. The Guarantor represents, warrants and agrees that it assumes
sole responsibility for obtaining from the Company all information concerning
the Securities Purchase Agreement and all other Related Agreements and all other
information as to the Obligors and their Affiliates or their properties or
management as the Guarantor deems necessary or desirable.
2.6. Certain Guarantor Representations. The Guarantor represents that:
(a) it is in its best interest and in pursuit of the purposes for
which it was organized as an integral part of the business conducted and
proposed to be conducted by the Company and its Subsidiaries, and
reasonably necessary and convenient in connection with the conduct of the
business conducted and proposed to be conducted by them, to induce the
Noteholder to enter into the Securities Purchase Agreement and to extend
credit to the Company by making the Guarantee contemplated by this Section
2;
(b) the credit available hereunder will directly or indirectly inure
to its benefit;
(c) by virtue of the foregoing it is receiving at least reasonably
equivalent value from the Noteholder for its Guarantee;
(d) it will not be rendered insolvent as a result of entering into
this Agreement;
-5-
(e) after giving effect to the transactions contemplated by this
Agreement, it will have assets having a fair saleable value in excess of
the amount required to pay its probable liability on its existing debts as
they become absolute and matured;
(f) it has, and will have, access to adequate capital for the conduct
of its business;
(g) it has the ability to pay its debts from time to time incurred in
connection therewith as such debts mature; and
(h) it has been advised by the Noteholder that the Noteholder is
unwilling to enter into certain Amendments to the Securities Purchase
Agreement unless the Guarantee contemplated by this Section 2 is given by
it.
2.7. Subrogation. The Guarantor agrees that, until the Guaranteed
Obligations are paid in full, it will not exercise any right of reimbursement,
subrogation, contribution, offset or other claims against any other Obligor
arising by Contractual Obligation or operation of any Legal Requirement in
connection with any payment made or required to be made by the Guarantor under
this Agreement. After the payment in full of the Guaranteed Obligations, the
Guarantor shall be entitled to exercise against the Company and any other
Obligor all such rights of reimbursement, subrogation, contribution and offset,
and all such other claims, to the fullest extent permitted by law.
2.8. Subordination. The Guarantor covenants and agrees that, after the
occurrence of an Event of Default, all Indebtedness, claims and liabilities then
or thereafter owing by any Obligor to the Guarantor whether arising hereunder or
otherwise are subordinated to the prior payment in full of the Guaranteed
Obligations and are so subordinated as a claim against such Obligor or any of
its assets, whether such claim be in the ordinary course of business or in the
event of voluntary or involuntary liquidation, dissolution, insolvency or
bankruptcy, so that no payment with respect to any such Indebtedness, claim or
liability will be made or received while any Event of Default exists.
2.9. Further Assurances. The Guarantor will, promptly upon the request of
the Noteholder from time to time, execute, acknowledge and deliver, and file and
record, all such instruments, and take all such action, as the Noteholder deems
necessary or advisable to carry out the intent and purposes of this Section 2.
3. Representations and Warranties. In order to induce the Noteholder to extend
credit under the Securities Purchase Agreement, the Guarantor represents and
warrants that:
3.1. Organization and Business. The Guarantor is a duly organized and
validly existing corporation, in good standing under
-6-
the laws of Michigan, with all power and authority, corporate or otherwise,
necessary (a) to enter into and perform this Agreement and each other Related
Agreement to which it is a party and (b) to own its properties and carry on the
business now conducted or proposed to be conducted by it. Certified copies of
the Charter and By-laws of the Guarantor have been previously delivered to the
Noteholder and are correct and complete.
3.2. Authorization and Enforceability. The Guarantor has taken all
corporate action required to execute, deliver and perform this Agreement and
each other Related Agreement to which it is a party. Each of this Agreement and
each other Related Agreement to which the Guarantor is party constitutes the
legal, valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms subject to the effect of Bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
rights and remedies of creditors generally and by general principles of equity,
regardless of whether applied in proceedings in equity or at law, including
limitations imposed by equity on the enforceability of waivers.
3.3. No Legal Obstacle to Agreements. Neither the execution and delivery
of this Agreement or any other Related Agreement, nor the consummation of any
transaction referred to in or contemplated by this Agreement or any other
Related Agreement, nor the fulfillment of the terms hereof or thereof or of any
other Contractual Obligation referred to in this Agreement or any other Related
Agreement, has constituted or resulted, or will constitute or result, in:
(a) Any breach or termination of the provisions of any Contractual
Obligation to which the Guarantor is a party or by which it is bound, or of
the Charter or By-laws of the Guarantor: or
(b) The violation of any Legal Requirement.
No approval, authorization or other action by, or declaration to or filing with,
any Governmental Authority or any other Person is required to be obtained or
made by the Guarantor in connection with the execution, delivery and performance
of this Agreement or any other Related Agreement to which it is party or the
transactions contemplated hereby or thereby.
3.4. Litigation. No Action is pending or, to the knowledge of the
Guarantor, threatened which may involve any material risk of any final judgment,
order or liability which, after giving effect to any applicable insurance, has
resulted, or creates a material risk of resulting, in any material adverse
change in the Guarantor's business, assets, financial condition, income or
prospects or which seeks to enjoin the consummation, or which questions the
validity, of any of the transactions contemplated by this Agreement or any other
Related Agreement. No judgment, decree or order of any Governmental Authority
has been issued against or
-7-
binds the Guarantor which has resulted, or creates a material risk of resulting,
in any material adverse change in the Guarantor's business, assets, financial
condition, income or prospects.
4. Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of the Noteholder and its successors and assigns and shall be binding
upon the Guarantor and its respective successors and assigns. The Guarantor may
not assign its rights or obligations under this Agreement without the written
consent of the Noteholder.
5. Notices. Any notice or other communication in connection with this
Agreement shall be deemed to be given if given in writing (including telex,
telecopy or similar teletransmission) addressed as provided below (or to the
addressee at such other address as the addressee shall have specified by notice
actually received by the addressor), and if either (a) actually delivered in
fully legible form to such address (evidenced in the case of a telex by receipt
of the correct answerback) or (b) in the case of a letter, five business days
shall have elapsed after the same shall have been deposited in the United States
mails, with first-class postage prepaid and registered or certified.
If to the Guarantor, to it care of Numatics, Incorporated, 1450 North
Milford Road, Highland, Michigan 48357, to the attention of the chief financial
officer.
If to the Noteholder, to it at its address specified in or pursuant to
Section 15 of the Securities Purchase Agreement.
6. Venue; Service of Process.
(a) The Guarantor and Noteholder agree that any legal proceeding
arising out of or based upon this Agreement or any Specified Related
Agreement relating to the subject matter hereof or thereof shall be brought
in the state courts of the Commonwealth of Massachusetts or the United
States District Court located in the Commonwealth of Massachusetts, and in
no other court or jurisdiction;
(b) The Guarantor and Noteholder irrevocably submit to the exclusive
jurisdiction of the state courts of The Commonwealth of Massachusetts and
the United States District Court for the District of Massachusetts for the
purpose of any suit, action or other proceeding arising out of or based
upon this Agreement or the subject matter hereof or thereof brought by the
Guarantor or Noteholder or any of their respective successors or assigns;
and
(c) The Guarantor and Noteholder waive to the extent not prohibited
by applicable law, and agrees not to assert, by way of motion, as a defense
or otherwise, in any such proceeding brought in any of the above-named
courts, any claim that they are not subject personally to the jurisdiction
of such court,
-8-
that their property is exempt or immune from attachment or execution, that
such proceeding is brought in an inconvenient forum, that the venue of any
such proceeding is improper, or that this Agreement or any other Related
Agreement, or the subject matter hereof or thereof, may not be enforced in
or by such court.
The Guarantor and Noteholder consent to service of process in any such
proceeding in any manner permitted by Chapter 223A or any other provision of the
General Laws of The Commonwealth of Massachusetts or the rules and regulations
promulgated thereunder and agree that service of process by registered or
certified mail, return receipt requested, at their address specified in or
pursuant to Section 5 is reasonably calculated to give actual notice.
7. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH
CANNOT BE WAIVED, EACH OF THE NOTEHOLDER AND THE GUARANTOR WAIVE, AND COVENANT
THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY
RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE
SECURITIES PURCHASE AGREEMENT OR ANY OTHER RELATED AGREEMENT OR THE SUBJECT
MATTER HEREOF OR THEREOF OR ANY OBLIGATION HEREUNDER OR THEREUNDER OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE NOTEHOLDER OR THE
GUARANTOR IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. THE GUARANTOR
AND NOTEHOLDER ACKNOWLEDGE THAT EACH HAS BEEN INFORMED BY THE OTHER THAT THE
PROVISIONS OF THIS SECTION 7 CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE
OTHER HAS RELIED, IS RELYING AND WILL RELY IN ENTERING INTO THE SECURITIES
PURCHASE AGREEMENT AND ANY OTHER RELATED AGREEMENT TO WHICH IT IS A PARTY, AND
THAT IT HAS REVIEWED THE PROVISIONS OF THIS SECTION 7 WITH ITS COUNSEL. The
Noteholder or the Guarantor may file an original counterpart or a copy of this
Section 7 with any court as written evidence of the consent of the Noteholder
and the Guarantor to the waiver of the right to trial by jury.
8. Subordination. Notwithstanding anything to the contrary herein contained,
if the Guarantor has executed a Guarantee of any Senior Indebtedness (as defined
in Section 5 of Exhibit 7.2A to the Securities Purchase Agreement), or is
otherwise obligated to pay Senior Indebtedness, then (a) the Noteholder shall
take no action under this Agreement unless the Noteholder would be allowed to
take action directly against the Company under the terms of Section 5 of the
Notes, and (b) the obligations of the Guarantor under this Agreement shall
otherwise be subordinated to the Guarantor's obligations under the Senior
Indebtedness on the same terms and to the same extent as the Subordinated
Indebtedness is subordinated to such Senior Indebtedness.
9. General. All covenants, agreements, representations and warranties made in
this Agreement or any other Related Agreement or in certificates delivered
pursuant hereto or thereto shall be
-9-
deemed to have been relied on by The Noteholder, notwithstanding any
investigation made by the Noteholder or its counsel, and shall survive the
execution and delivery to The Noteholder hereof and thereof. The invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of any other term or provision hereof. The headings in this
Agreement are for convenience of reference only and shall not limit, alter or
otherwise affect the meaning hereof. This Agreement and the other Related
Agreements constitute the entire understanding of the parties with respect to
the subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral. This Agreement is
intended to take effect as a sealed document and may be executed in any number
of counterparts, which together shall constitute one instrument. This Agreement
shall be governed by and construed in accordance with the domestic substantive
laws of The Commonwealth of Massachusetts without regard to any choice or
conflict of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction.
10. Amendment and Restatement. This Agreement amends and restates in its
entirety that certain Guarantee dated as of January 3, 1996 executed by the
Guarantor.
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
dated first written above.
ULTRA AIR PRODUCTS, INC.
By /s/ Robert P. Robeson
-----------------------------------
Title: Secretary
HARVARD PRIVATE CAPITAL HOLDINGS, INC.
By /s/ Timothy R. Palmer
-----------------------------------
Title: Managing Director
By /s/ Michael R. Eisenson
-----------------------------------
Title: President and CEO
-10-
AMENDED AND RESTATED GUARANTEE
This Amended and Restated Guarantee ("Agreement"), dated as of March 23,
1998, is between Microsmith, Inc., an Arizona corporation (together with its
successors and assigns, the "Guarantor"), and Harvard Private Capital Holdings,
Inc. (together with its successors and assigns, the "Noteholder"). The parties
agree as follows:
1. Reference to Securities Purchase Agreement; Certain Rules of Construction;
Definitions. Reference is made to the Securities Purchase Agreement dated as of
January 3, 1996, as from time to time in effect, as amended (the "Securities
Purchase Agreement"), between Numatics, Incorporated, a Michigan corporation
(the "Company"), and the Noteholder. Except as the context otherwise explicitly
requires, (a) the capitalized term "Section" refers to sections of this
Agreement, (b) references to a particular Section shall include all subsections
thereof and (c) the word "including" shall be construed as "including without
limitation". Capitalized terms defined in the Securities Purchase Agreement and
not otherwise defined herein are used herein with the meanings so defined. In
addition, the term "Bankruptcy Code" shall mean Title 11 of the United States
Code, and the term "Obligor" shall mean each Person having any obligation or
other liability in respect of the Guaranteed Obligations, including each of the
Company and each Subsidiary of the Company executing a Guarantee Agreement.
2. Guarantee.
2.1. Guarantee. The Guarantor unconditionally guarantees that the
principal of, and interest on the Indebtedness evidenced by, and all other
obligations of the Company in respect of, or arising under or in respect of, the
Notes or to the holders of the Notes, including without limitation all such
obligations arising under Section 14 of the Securities Purchase Agreement
(collectively, the "Guaranteed Obligations"), will be performed and will be paid
in full in cash when due and payable, whether at the stated or accelerated
maturity thereof or otherwise, this guarantee being a guarantee of payment and
not of collectibility and being absolute and in no way conditional or
contingent. In the event any part of the Guaranteed Obligations shall not have
been so paid in full when due and payable, the Guarantor will, immediately upon
notice by the Noteholder or, without notice, immediately upon the occurrence of
a Default, pay or cause to be paid to the Noteholder the amount of such
Guaranteed Obligations which is then due and payable and unpaid. The obligations
of the Guarantor hereunder shall not be affected by the invalidity,
unenforceability or irrecoverability of any of the Guaranteed Obligations as
against any Obligor. For purposes hereof, the Guaranteed Obligations shall be
due and payable when and as the same shall be due and payable under the terms of
the Securities Purchase Agreement or any other of the Related Agreements
notwithstanding the fact that the collection or enforcement thereof may be
stayed or enjoined under the Bankruptcy Code or other applicable law.
2.2. Continuing Obligation. The Guarantor acknowledges that the Noteholder
has entered into the Securities Purchase Agreement and the other Related
Agreements (and, to the extent that the Noteholder may enter into any future
Related Agreement, will have entered into such agreement) in reliance on this
Section 2 being a continuing irrevocable agreement, and the Guarantor agrees
that its guarantee may not be revoked in whole or in part. The obligations of
the Guarantor hereunder shall terminate when all of the Guaranteed Obligations
has been indefeasibly paid in full in cash and discharged; provided, however,
that:
(a) if a claim is made upon the Noteholder at any time for repayment
or recovery of any amounts or any property received by the Noteholder from
any source on account of any of the Guaranteed Obligations and the
Noteholder repays or returns any amounts or property so received (including
interest thereon to the extent required to be paid by the Noteholder) or
(b) if the Noteholder become liable for any part of such claim by
reason of (i) any judgment or order of any court or administrative
authority having competent jurisdiction, or (ii) any settlement or
compromise of any such claim,
then the Guarantor shall remain liable under this Agreement for the amounts so
repaid or property so returned or the amounts for which the Noteholder becomes
liable (such amounts being deemed part of the Guaranteed Obligations) to the
same extent as if such amounts or property had never been received by the
Noteholder, notwithstanding any termination hereof or the cancellation of any
instrument or agreement evidencing any of the Guaranteed Obligations. Not later
than five days after receipt of notice from the Noteholder, the Guarantor shall
pay to the Noteholder an amount equal to the amount of such repayment or return
for which the Noteholder has so become liable. Payments hereunder by the
Guarantor may be required by the Noteholder on any number of occasions.
2.3. Waivers with Respect to Guaranteed Obligations. Except to the extent
expressly required by the Securities Purchase Agreement, or any other Related
Agreement, the Guarantor waives, to the fullest extent permitted by the
provisions of applicable law, all of the following (including all defenses,
counterclaims and other rights of any nature based upon any of the following):
(a) presentment, demand for payment and protest of nonpayment of any
of the Guaranteed Obligations, and notice of protest, dishonor or
nonperformance;
(b) notice of acceptance of this guarantee and notice that credit has
been extended in reliance on the Guarantor's guarantee of the Guaranteed
Obligations;
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(c) notice of any Default or of any inability to enforce performance
of the obligations of the Company or any other Person with respect to any
Related Agreement, or notice of any acceleration of maturity of any
Guaranteed Obligations;
(d) demand for performance or observance of, and any enforcement of
any provision of the Securities Purchase Agreement, the Guaranteed
Obligations or any other Related Agreement or any pursuit or exhaustion of
rights or remedies under the Security Agreement or against the Company or
any other Person in respect of the Guaranteed Obligations or any
requirement of diligence or promptness on the part of the Noteholder in
connection with any of the foregoing;
(e) any act or omission on the part of the Noteholder which may
impair or prejudice the rights of the Guarantor, including rights to obtain
subrogation, exoneration, contribution, indemnification or any other
reimbursement from the Company or any other Person, or otherwise operate as
a deemed release or discharge;
(f) failure or delay to perfect or continue the perfection of any
Lien under any Security Agreement or any other action which harms or
impairs the value of, or any failure to preserve or protect the value of,
any right, title and interest in and to the items and types of present and
future property on which a Lien is created as set forth in any Security
Agreement;
(g) any statute of limitations or other Legal Requirement which
provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than the obligation of the principal;
(h) any "single action" or "anti-deficiency" law which would
otherwise prevent the Noteholder from bringing any action, including any
claim for a deficiency, against the Guarantor before or after the
Noteholder's commencement or completion of any foreclosure action, whether
judicially, by exercise of power of sale or otherwise, or any other law
which would otherwise require any election of remedies by the Noteholder;
(i) all demands and notices of every kind with respect to the
foregoing; and
(j) to the extent not referred to above, all defenses (other than
payment) which the Company or any other Obligor may now or hereafter have
to the payment of the Guaranteed Obligations, together with all suretyship
defenses, which could otherwise be asserted by the Guarantor.
The Guarantor represents that it has obtained the advice of counsel as to the
extent to which suretyship and other defenses may be
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available to it with respect to its obligations hereunder in the absence of the
waivers contained in this Section 2.3.
No delay or omission on the part of the Noteholder in exercising any right
under this Agreement or any other Related Agreement or under any guarantee of
the Guaranteed Obligations or with respect to any right under the Security
Agreement shall operate as a waiver or relinquishment of such right. No action
which the Noteholder or any Obligor may take or refrain from taking with respect
to the Guaranteed Obligations, including any amendments thereto or modifications
thereof or waivers with respect thereto, shall affect the provisions of this
Agreement or the obligations of the Guarantor hereunder. None of the
Noteholder's rights shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of any Obligor, or by any noncompliance by
any Obligor with the terms, provisions and covenants of the Securities Purchase
Agreement or any other Related Agreement, regardless of any knowledge thereof
which the Noteholder may have or otherwise be charged with.
2.4. The Noteholder's Power to Waive, etc. The Guarantor grants to the
Noteholder full power in its discretion, without notice to or consent of the
Guarantor, such notice and consent being expressly waived to the fullest extent
permitted by applicable law, and without in any way affecting the liability of
the Guarantor under its guarantee hereunder:
(a) To waive compliance with, and any Default under, and to consent
to any amendment to or modification or termination of any terms or
provisions of, or to give any waiver in respect of, the Securities Purchase
Agreement, any other Related Agreement, the Guaranteed Obligations or any
Guarantee thereof (each as from time to time in effect);
(b) To grant any extensions of the Guaranteed Obligations (for any
duration), and any other indulgence with respect thereto, and to effect any
total or partial release (by operation of law or otherwise), discharge,
compromise or settlement with respect to the obligations of any Obligors or
any other Person in respect of the Guaranteed Obligations, whether or not
rights against the Guarantor under this Agreement are reserved in
connection therewith;
(c) To take security in any form for the Guaranteed Obligations, and
to consent to the addition to or the substitution, exchange, release or
other disposition of, or to deal in any other manner with, any part of any
property on which a Lien is created under any Security Agreement whether or
not the property, if any, received upon the exercise of such power shall be
of a character or value the same as or different from the character or
value of any property disposed of, and to obtain, modify or release any
present or future Guarantees of the Guaranteed Obligations and to proceed
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against any property on which a Lien is created under any Security
Agreement or such Guarantees in any order;
(d) To collect or liquidate or realize upon or to refrain from
collecting or liquidating or realizing upon any of the Guaranteed
Obligations or the property on which a Lien is created under the Security
Agreement in any manner.
2.5. Information Regarding the Company, etc. The Guarantor has made such
investigation as it deems desirable of the risks undertaken by it in entering
into this Agreement and is fully satisfied that it understands all such risks.
The Guarantor waives any obligation which may now or hereafter exist on the part
of the Noteholder to inform it of the risks being undertaken by entering into
this Agreement or of any changes in such risks and, from and after the date
hereof, the Guarantor undertakes to keep itself informed of such risks and any
changes therein. The Guarantor expressly waives any duty which may now or
hereafter exist on the part of the Noteholder to disclose to the Guarantor any
matter related to the business, operations, character, collateral, credit,
condition (financial or otherwise), income or prospects of any Obligor or its
Affiliates or their properties or management, whether now or hereafter known by
the Noteholder. The Guarantor represents, warrants and agrees that it assumes
sole responsibility for obtaining from the Company all information concerning
the Securities Purchase Agreement and all other Related Agreements and all other
information as to the Obligors and their Affiliates or their properties or
management as the Guarantor deems necessary or desirable.
2.6. Certain Guarantor Representations. The Guarantor represents that:
(a) it is in its best interest and in pursuit of the purposes for
which it was organized as an integral part of the business conducted and
proposed to be conducted by the Company and its Subsidiaries, and
reasonably necessary and convenient in connection with the conduct of the
business conducted and proposed to be conducted by them, to induce the
Noteholder to enter into the Securities Purchase Agreement and to extend
credit to the Company by making the Guarantee contemplated by this Section
2;
(b) the credit available hereunder will directly or indirectly inure
to its benefit;
(c) by virtue of the foregoing it is receiving at least reasonably
equivalent value from the Noteholder for its Guarantee;
(d) it will not be rendered insolvent as a result of entering into
this Agreement;
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(e) after giving effect to the transactions contemplated by this
Agreement, it will have assets having a fair saleable value in excess of
the amount required to pay its probable liability on its existing debts as
they become absolute and matured;
(f) it has, and will have, access to adequate capital for the conduct
of its business;
(g) it has the ability to pay its debts from time to time incurred in
connection therewith as such debts mature; and
(h) it has been advised by the Noteholder that the Noteholder is
unwilling to enter into certain Amendments to the Securities Purchase
Agreement unless the Guarantee contemplated by this Section 2 is given by
it.
2.7. Subrogation. The Guarantor agrees that, until the Guaranteed
Obligations are paid in full, it will not exercise any right of reimbursement,
subrogation, contribution, offset or other claims against any other Obligor
arising by Contractual Obligation or operation of any Legal Requirement in
connection with any payment made or required to be made by the Guarantor under
this Agreement. After the payment in full of the Guaranteed Obligations, the
Guarantor shall be entitled to exercise against the Company and any other
Obligor all such rights of reimbursement, subrogation, contribution and offset,
and all such other claims, to the fullest extent permitted by law.
2.8. Subordination. The Guarantor covenants and agrees that, after the
occurrence of an Event of Default, all Indebtedness, claims and liabilities then
or thereafter owing by any Obligor to the Guarantor whether arising hereunder or
otherwise are subordinated to the prior payment in full of the Guaranteed
Obligations and are so subordinated as a claim against such Obligor or any of
its assets, whether such claim be in the ordinary course of business or in the
event of voluntary or involuntary liquidation, dissolution, insolvency or
bankruptcy, so that no payment with respect to any such Indebtedness, claim or
liability will be made or received while any Event of Default exists.
2.9. Further Assurances. The Guarantor will, promptly upon the request of
the Noteholder from time to time, execute, acknowledge and deliver, and file and
record, all such instruments, and take all such action, as the Noteholder deems
necessary or advisable to carry out the intent and purposes of this Section 2.
3. Representations and Warranties. In order to induce the Noteholder to extend
credit under the Securities Purchase Agreement, the Guarantor represents and
warrants that:
3.1. Organization and Business. The Guarantor is a duly organized and
validly existing corporation, in good standing under
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the laws of Arizona, with all power and authority, corporate or otherwise,
necessary (a) to enter into and perform this Agreement and each other Related
Agreement to which it is a party and (b) to own its properties and carry on the
business now conducted or proposed to be conducted by it. Certified copies of
the Charter and By-laws of the Guarantor have been previously delivered to the
Noteholder and are correct and complete.
3.2. Authorization and Enforceability. The Guarantor has taken all
corporate action required to execute, deliver and perform this Agreement and
each other Related Agreement to which it is a party. Each of this Agreement and
each other Related Agreement to which the Guarantor is party constitutes the
legal, valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms subject to the effect of Bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
rights and remedies of creditors generally and by general principles of equity,
regardless of whether applied in proceedings in equity or at law, including
limitations imposed by equity on the enforceability of waivers.
3.3. No Legal Obstacle to Agreements. Neither the execution and delivery
of this Agreement or any other Related Agreement, nor the consummation of any
transaction referred to in or contemplated by this Agreement or any other
Related Agreement, nor the fulfillment of the terms hereof or thereof or of any
other Contractual Obligation referred to in this Agreement or any other Related
Agreement, has constituted or resulted, or will constitute or result, in:
(a) Any breach or termination of the provisions of any Contractual
Obligation to which the Guarantor is a party or by which it is bound, or of
the Charter or By-laws of the Guarantor: or
(b) The violation of any Legal Requirement.
No approval, authorization or other action by, or declaration to or filing with,
any Governmental Authority or any other Person is required to be obtained or
made by the Guarantor in connection with the execution, delivery and performance
of this Agreement or any other Related Agreement to which it is party or the
transactions contemplated hereby or thereby.
3.4. Litigation. No Action is pending or, to the knowledge of the
Guarantor, threatened which may involve any material risk of any final judgment,
order or liability which, after giving effect to any applicable insurance, has
resulted, or creates a material risk of resulting, in any material adverse
change in the Guarantor's business, assets, financial condition, income or
prospects or which seeks to enjoin the consummation, or which questions the
validity, of any of the transactions contemplated by this Agreement or any other
Related Agreement. No judgment, decree or order of any Governmental Authority
has been issued against or
-7-
binds the Guarantor which has resulted, or creates a material risk of resulting,
in any material adverse change in the Guarantor's business. assets, financial
condition, income or prospects.
4. Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of the Noteholder and its successors and assigns and shall be binding
upon the Guarantor and its respective successors and assigns. The Guarantor may
not assign its rights or obligations under this Agreement without the written
consent of the Noteholder.
5. Notices. Any notice or other communication in connection with this
Agreement shall be deemed to be given if given in writing (including telex,
telecopy or similar teletransmission) addressed as provided below (or to the
addressee at such other address as the addressee shall have specified by notice
actually received by the addressor), and if either (a) actually delivered in
fully legible form to such address (evidenced in the case of a telex by receipt
of the correct answerback) or (b) in the case of a letter, five business days
shall have elapsed after the same shall have been deposited in the United States
mails, with first-class postage prepaid and registered or certified.
If to the Guarantor, to it care of Numatics, Incorporated, 1450 North
Milford Road, Highland, Michigan 48357, to the attention of the chief financial
officer.
If to the Noteholder, to it at its address specified in or pursuant to
Section 15 of the Securities Purchase Agreement.
6. Venue; Service of Process.
(a) The Guarantor and Noteholder agree that any legal proceeding
arising out of or based upon this Agreement or any Specified Related
Agreement relating to the subject matter hereof or thereof shall be brought
in the state courts of the Commonwealth of Massachusetts or the United
States District Court located in the Commonwealth of Massachusetts, and in
no other court or jurisdiction;
(b) The Guarantor and Noteholder irrevocably submit to the exclusive
jurisdiction of the state courts of The Commonwealth of Massachusetts and
the United States District Court for the District of Massachusetts for the
purpose of any suit, action or other proceeding arising out of or based
upon this Agreement or the subject matter hereof or thereof brought by the
Guarantor or Noteholder or any of their respective successors or assigns;
and
(c) The Guarantor and Noteholder waive to the extent not prohibited
by applicable law, and agrees not to assert, by way of motion, as a defense
or otherwise, in any such proceeding brought in any of the above-named
courts, any claim that they are not subject personally to the jurisdiction
of such court,
-8-
that their property is exempt or immune from attachment or execution, that
such proceeding is brought in an inconvenient forum, that the venue of any
such proceeding is improper, or that this Agreement or any other Related
Agreement, or the subject matter hereof or thereof, may not be enforced in
or by such court.
The Guarantor and Noteholder consent to service of process in any such
proceeding in any manner permitted by Chapter 223A or any other provision of the
General Laws of The Commonwealth of Massachusetts or the rules and regulations
promulgated thereunder and agree that service of process by registered or
certified mail, return receipt requested, at their address specified in or
pursuant to Section 5 is reasonably calculated to give actual notice.
7. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH
CANNOT BE WAIVED, EACH OF THE NOTEHOLDER AND THE GUARANTOR WAIVE, AND COVENANT
THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY
RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE
SECURITIES PURCHASE AGREEMENT OR ANY OTHER RELATED AGREEMENT OR THE SUBJECT
MATTER HEREOF OR THEREOF OR ANY OBLIGATION HEREUNDER OR THEREUNDER OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE NOTEHOLDER OR THE
GUARANTOR IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. THE GUARANTOR
AND NOTEHOLDER ACKNOWLEDGE THAT EACH HAS BEEN INFORMED BY THE OTHER THAT THE
PROVISIONS OF THIS SECTION 7 CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE
OTHER HAS RELIED, IS RELYING AND WILL RELY IN ENTERING INTO THE SECURITIES
PURCHASE AGREEMENT AND ANY OTHER RELATED AGREEMENT TO WHICH IT IS A PARTY, AND
THAT IT HAS REVIEWED THE PROVISIONS OF THIS SECTION 7 WITH ITS COUNSEL. The
Noteholder or the Guarantor may file an original counterpart or a copy of this
Section 7 with any court as written evidence of the consent of the Noteholder
and the Guarantor to the waiver of the right to trial by jury.
8. Subordination. Notwithstanding anything to the contrary herein contained,
if the Guarantor has executed a Guarantee of any Senior Indebtedness (as defined
in Section 5 of Exhibit 7.2A to the Securities Purchase Agreement), or is
otherwise obligated to pay Senior Indebtedness, then (a) the Noteholder shall
take no action under this Agreement unless the Noteholder would be allowed to
take action directly against the Company under the terms of Section 5 of the
Notes, and (b) the obligations of the Guarantor under this Agreement shall
otherwise be subordinated to the Guarantor's obligations under the Senior
Indebtedness on the same terms and to the same extent as the Subordinated
Indebtedness is subordinated to such Senior Indebtedness.
9. General. All covenants, agreements, representations and warranties made in
this Agreement or any other Related Agreement or in certificates delivered
pursuant hereto or thereto shall be
-9-
deemed to have been relied on by The Noteholder, notwithstanding any
investigation made by the Noteholder or its counsel, and shall survive the
execution and delivery to The Noteholder hereof and thereof. The invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of any other term or provision hereof. The headings in this
Agreement are for convenience of reference only and shall not limit, alter or
otherwise affect the meaning hereof. This Agreement and the other Related
Agreements constitute the entire understanding of the parties with respect to
the subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral. This Agreement is
intended to take effect as a sealed document and may be executed in any number
of counterparts, which together shall constitute one instrument. This Agreement
shall be governed by and construed in accordance with the domestic substantive
laws of The Commonwealth of Massachusetts without regard to any choice or
conflict of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction.
10. Amendment and Restatement. This Agreement amends and restates in its
entirety that certain Guarantee dated as of January 3, 1996 executed by the
Guarantor.
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
dated first written above.
MICROSMITH, INC.
By /s/ Robert P. Robeson
-----------------------------------
Title: Secretary
---------------------------
HARVARD PRIVATE CAPITAL HOLDINGS, INC.
By /s/ Timothy R. Palmer
-----------------------------------
Title: Managing Director
---------------------------
By /s/ Michael R. Eisenson
-----------------------------------
Title: President and CEO
---------------------------
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