EXHIBIT 10.21 (b)
SUBSIDIARY GUARANTEE AGREEMENT (together with
instruments executed and delivered pursuant to Section 20,
this "Agreement") dated as of March 15, 1999, among each of
the subsidiaries of Playboy Enterprises, Inc. (f/k/a New
Playboy, Inc.) (the "Company") listed on Schedule I hereto
(the "Subsidiary Guarantors"), and CREDIT SUISSE FIRST BOSTON,
a bank organized under the laws of Switzerland, acting though
its New York Branch ("CSFB"), as collateral agent (in such
capacity, the "Collateral Agent") for the Secured Parties (as
defined in the Credit Agreement referred to below).
Reference is made to the Credit Agreement dated as of February 26, 1999,
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among the Company, PEI HOLDINGS, INC., a Delaware corporation and
wholly owned subsidiary of the Company ("PHI"), the Lenders (as defined in
Article I thereof), and CSFB, as administrative agent (in such capacity, the
"Administrative Agent"), as collateral agent (in such capacity, the "Collateral
Agent") and as issuing bank (in such capacity, the "Issuing Bank") for the
Lenders. Capitalized terms used and not defined herein (including, without
limitation, the term "Obligations", as used in Section 1 and elsewhere herein)
are used with the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing Bank
has agreed to issue Letters of Credit for the account of the Borrower, in each
case pursuant to, and upon the terms and subject to the conditions specified in,
the Credit Agreement. Each of the Subsidiary Guarantors is a Subsidiary of the
Company and acknowledges that it will derive substantial benefit from the making
of the Loans by the Lenders to the Borrower, and the issuance of the Letters of
Credit by the Issuing Bank for the account of the Borrower. The obligations of
the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit are
conditioned on, among other things, the execution and delivery by the Subsidiary
Guarantors of a Subsidiary Guarantee Agreement in the form hereof. As
consideration therefor and in order to induce the Lenders to make Loans and the
Issuing Bank to issue Letters of Credit, the Subsidiary Guarantors are willing
to execute this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Subsidiary Guarantee. Each Subsidiary Guarantor unconditionally
guarantees, jointly with the other Subsidiary Guarantors and severally, as a
primary obligor and not merely as a surety, the due and punctual payment of the
Obligations. Each Subsidiary Guarantor waives notice of and hereby consents to
any agreements or arrangements whatsoever by the Secured Parties with any other
person pertaining to the Obligations, including agreements and arrangements for
payment, extension, renewal, subordination, composition, arrangement, discharge
or release of the whole or any part of the Obligations, or for the discharge or
surrender of any or all security, or for the
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compromise, whether by way of acceptance of part payment or otherwise, and the
same shall in no way impair such Subsidiary Guarantor's liability hereunder.
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Subsidiary Guarantor waives presentment to, demand of
payment from and protest to the Borrower or any other person of any of the
Obligations, and also waives notice of acceptance of its guarantee, notice of
protest for nonpayment, and all other formalities. To the fullest extent
permitted by applicable law, the obligations of each Subsidiary Guarantor
hereunder shall not be affected by (a) the failure of any Loan Party to assert
any claim or demand or to enforce or exercise any right or remedy against the
Company, the Borrower or any other Subsidiary Guarantor under the provisions of
the Credit Agreement, any other Loan Document or otherwise, (b) any extension,
renewal or increase of or in any of the Obligations, (c) any rescission, waiver,
amendment or modification of, or any release from, any of the terms or
provisions of this Agreement, the Credit Agreement, any other Loan Document, any
guarantee or any other agreement or instrument, including with respect to any
other Subsidiary Guarantor under this Agreement and with respect to the Company
under Article IX of the Credit Agreement, (d) the release of (or the failure to
perfect a security interest in) any of the security held by or on behalf of the
Collateral Agent or any other Secured Party or (e) the failure or delay of any
Secured Party to exercise any right or remedy against any other guarantor of the
Obligations.
SECTION 3. Security. Each of the Subsidiary Guarantors authorizes the
Collateral Agent to (a) take and hold security for the payment of this
Subsidiary Guarantee and the Obligations and exchange, enforce, waive and
release any such security, (b) apply such security and direct the order or
manner of sale thereof as it in its sole discretion may determine subject to the
terms of any other Loan Documents and (c) release or substitute any one or more
endorsees, other guarantors or other obligors.
SECTION 4. Guarantee of Payment. Each Subsidiary Guarantor further agrees
that its guarantee constitutes a guarantee of payment when due and not of
collection, and waives any right to require that any resort be had by the
Collateral Agent or any other Secured Party to any of the security held for
payment of the Obligations or to any balance of any deposit account or credit on
the books of the Collateral Agent or any other Secured Party in favor of the
Borrower or any other person.
SECTION 5. No Discharge or Diminishment of Guarantee. The obligations of
each Subsidiary Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Obligations), including any claim of
waiver, release, surrender, alteration or compromise of any of the Obligations,
and shall not be subject to any defense (other than a defense of payment) or
setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of each
Subsidiary Guarantor hereunder shall
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not be discharged or impaired or otherwise affected by the failure of the
Collateral Agent or any other Secured Party to assert any claim or demand or to
enforce any remedy under the Credit Agreement, any other Loan Document, any
guarantee or any other agreement or instrument, by any amendment, waiver or
modification of any provision of the Credit Agreement or any other Loan Document
or other agreement or instrument, by any default, failure or delay, wilful or
otherwise, in the performance of the Obligations, or by any other act, omission
or delay to do any other act that may or might in any manner or to any extent
vary the risk of such Subsidiary Guarantor or that would otherwise operate as a
discharge of such Subsidiary Guarantor as a matter of law or equity (other than
the indefeasible payment in full in cash of all the Obligations) or which would
impair or eliminate any right of such Subsidiary Guarantor to subrogation.
SECTION 6. Defenses Waived. To the fullest extent permitted by applicable
law, each of the Subsidiary Guarantors waives any defense based on or arising
out of the unenforceability of the Obligations or any part thereof from any
cause or the cessation from any cause of the liability (other than the final and
indefeasible payment in full in cash of the Obligations) of the Borrower or any
other person. The Collateral Agent and the other Secured Parties may, at their
election, foreclose on any security held by one or more of them by one or more
judicial or nonjudicial sales, accept an assignment of any such security in lieu
of foreclosure, compromise or adjust any part of the Obligations, make any other
accommodation with the Borrower or any other guarantor or exercise any other
right or remedy available to them against the Borrower or any other guarantor,
without affecting or impairing in any way the liability of any Subsidiary
Guarantor hereunder except to the extent the Obligations have been fully,
finally and indefeasibly paid in cash. Pursuant to applicable law, each of the
Subsidiary Guarantors waives any defense arising out of any such election even
though such election operates, pursuant to applicable law, to impair or to
extinguish any right of reimbursement or subrogation or other right or remedy of
such Subsidiary Guarantor against the Borrower or any other guarantor or any
security.
SECTION 7. Agreement to Pay; Subordination. In furtherance of the foregoing
and not in limitation of any other right that the Collateral Agent or any other
Secured Party has at law or in equity against any Subsidiary Guarantor by virtue
hereof, upon the failure of the Borrower or any other Loan Party to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Subsidiary Guarantor
hereby promises to and will forthwith pay, or cause to be paid, to the
Collateral Agent or such other Secured Party as designated thereby in cash an
amount equal to the unpaid principal amount of such Obligations then due,
together with accrued and unpaid interest and fees on such Obligations. Upon
payment by any Subsidiary Guarantor of any sums to the Collateral Agent or any
Secured Party as provided above, all rights of such Subsidiary Guarantor against
the Borrower arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment in
full in cash of all the Obligations. In addition, any indebtedness of the
Borrower or any Subsidiary now
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or hereafter held by any Subsidiary Guarantor is hereby subordinated in right of
payment to the prior payment in full of the Obligations. If any amount shall be
paid to any Subsidiary Guarantor on account of (i) such subrogation,
contribution, reimbursement, indemnity or similar right or (ii) any such
indebtedness at any time when any Obligation then due and owing has not been
paid, such amount shall be held in trust for the benefit of the Secured Parties
and shall forthwith be paid to the Collateral Agent to be credited against the
payment of the Obligations, whether matured or unmatured, in accordance with the
terms of the Loan Documents.
SECTION 8. Information. Each of the Subsidiary Guarantors assumes all
responsibility for being and keeping itself informed of the Borrower's financial
condition and assets, all other circumstances bearing upon the risk of
nonpayment of the Obligations and the nature, scope and extent of the risks that
such Subsidiary Guarantor assumes and incurs hereunder and agrees that none of
the Collateral Agent or the other Secured Parties will have any duty to advise
any of the Subsidiary Guarantors of information known to it or any of them
regarding such circumstances or risks.
SECTION 9. Representations and Warranties. Each of the Subsidiary
Guarantors represents and warrants as to itself that all representations and
warranties relating to it contained in the Credit Agreement are true and
correct.
SECTION 10. Termination. The Guarantees made hereunder (a) shall terminate
when (i) the principal of and premium, if any, and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on all Loans, (ii) each payment required to be made under the Credit
Agreement in respect of any Letter of Credit, and (iii) all other obligations
then due and owing, have in each case been indefeasibly paid in full and the
Lenders have no further commitment to lend under the Credit Agreement, the L/C
Exposure has been reduced to zero and the Issuing Bank has no further obligation
to issue Letters of Credit under the Credit Agreement and (b) shall continue to
be effective or be reinstated, as the case may be, if at any time any payment,
or any part thereof, on any Obligation is rescinded or must otherwise be
restored by any Secured Party upon the bankruptcy or reorganization of the
Company, the Borrower, or any Subsidiary Guarantor or otherwise.
SECTION 11. Binding Effect; Several Agreement; Assignments; Releases.
Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such party;
and all covenants, promises and agreements by or on behalf of the Subsidiary
Guarantors that are contained in this Agreement shall bind and inure to the
benefit of each party hereto and their respective successors and assigns. This
Agreement shall become effective as to any Subsidiary Guarantor when a
counterpart hereof (or a Supplement referred to in Section 20) executed on
behalf of such Subsidiary Guarantor shall have been delivered to the Collateral
Agent and
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a counterpart hereof (or a Supplement referred to in Section 20) shall have been
executed on behalf of the Collateral Agent, and thereafter shall be binding upon
such Subsidiary Guarantor and the Collateral Agent and their respective
successors and assigns, and shall inure to the benefit of such Subsidiary
Guarantor, the Collateral Agent and the other Secured Parties, and their
respective successors and assigns, except that no Subsidiary Guarantor shall
have the right to assign its rights or obligations hereunder or any interest
herein (and any such attempted assignment shall be void). This Agreement shall
be construed as a separate agreement with respect to each Subsidiary Guarantor
and may be amended, modified, supplemented, waived or released with respect to
any Subsidiary Guarantor without the approval of any other Subsidiary Guarantor
and without affecting the obligations of any other Subsidiary Guarantor. The
Collateral Agent is hereby expressly authorized to, and agrees upon request of
the Borrower it will, release any Subsidiary Guarantor from its obligations
hereunder in the event that all the capital stock of such Subsidiary Guarantor
shall be sold, transferred or otherwise disposed of to a person that is not an
Affiliate of the Borrower in a transaction permitted by Section 6.05 of the
Credit Agreement.
SECTION 12. Waivers; Amendment. (a) No failure or delay of the Collateral
Agent in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Collateral Agent hereunder and of
the other Secured Parties under the other Loan Documents are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by any
Subsidiary Guarantor therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) below, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given.
No notice or demand on any Subsidiary Guarantor in any case shall entitle such
Subsidiary Guarantor to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to a written agreement entered into between the
Subsidiary Guarantors to which such waiver, amendment or modification relates
and the Collateral Agent with consent required under the Credit Agreement.
SECTION 13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Notices. All communications and notices hereunder shall be in
writing and given as provided in Section 10.01 of the Credit Agreement. All
communications and notices hereunder to each Subsidiary Guarantor shall be given
to it at its address set forth in Schedule I with a copy to the Company.
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SECTION 15. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Subsidiary Guarantors
herein and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the Collateral Agent and the other
Secured Parties and shall survive the making by the Lenders of the Loans and the
issuance of the Letters of Credit by the Issuing Bank regardless of any
investigation made by the Secured Parties or on their behalf, and shall continue
in full force and effect as long as the principal of or any accrued interest on
any Loan or any other fee or amount payable under this Agreement or any other
Loan Document is outstanding and unpaid, the L/C Exposure does not equal zero or
the Commitments and the L/C Commitment have not been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 16. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which when taken together
shall constitute a single contract, and shall become effective as provided in
Section 11. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 17. Rules of Interpretation. The rules of interpretation specified
in Section 1.02 of the Credit Agreement shall be applicable to this Agreement.
SECTION 18. Jurisdiction; Consent to Service of Process. (a) Each
Subsidiary Guarantor hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State court or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Collateral Agent or any other Secured Party
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may otherwise have to bring any action or proceeding relating to this Agreement
or the other Loan Documents against any Subsidiary Guarantor or its properties
in the courts of any jurisdiction.
(b) Each Subsidiary Guarantor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the other
Loan Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 14. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
SECTION 19. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 19.
SECTION 20. Additional Subsidiary Guarantors. Pursuant to Section 5.09 of
the Credit Agreement, each Restricted Subsidiary (other than any Foreign
Subsidiary) that was not in existence on the date of the Credit Agreement is
required to enter into this Agreement as a Subsidiary Guarantor upon becoming a
Subsidiary. Upon execution and delivery after the date hereof by the Collateral
Agent and such a Subsidiary of a Supplement in the form of Annex 1, such
Subsidiary shall become a Subsidiary Guarantor hereunder with the same force and
effect as if originally named as a Subsidiary Guarantor herein. The execution
and delivery of any Supplement adding an additional Subsidiary Guarantor as a
party to this Agreement shall not require the consent of any other Subsidiary
Guarantor hereunder. The rights and obligations of each Subsidiary Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Subsidiary Guarantor as a party to this Agreement.
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SECTION 21. Right of Setoff. If an Event of Default shall have occurred and
be continuing, each Secured Party is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other Indebtedness at any time owing by such Secured Party to or
for the credit or the account of any Subsidiary Guarantor against any or all the
obligations of such Subsidiary Guarantor now or hereafter existing under this
Agreement and the other Loan Documents held by such Secured Party, irrespective
of whether or not the Collateral Agent or any Secured Party shall have made any
demand under this Agreement or any other Loan Document and although such
obligations may be unmatured. The rights of each Secured Party under this
Section 21 are in addition to other rights and remedies (including other rights
of setoff) which such Secured Party may have.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
EACH OF THE SUBSIDIARIES LISTED
ON SCHEDULE I HERETO,
by
------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as
Collateral Agent,
by
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Name:
Title:
by
------------------------------------
Name:
Title:
Schedule I to the
Subsidiary Guarantee Agreement
Subsidiary Guarantor Address
-------------------- -------
AdulTVision Communications, Inc. c/o Playboy Enterprises, Inc.
680 North Lake Shore Drive
After Dark Video, Inc. Chicago, IL 60611
Fax: (312) 751 8000
Alta Loma Entertainment, Inc. Attn: General Counsel
Attn: Chief Financial Officer
Alta Loma Distribution, Inc.
with a copy to:
Cameo Films, Inc. Paul, Weiss, Rifkind,
Wharton & Garrison
Critics' Choice Video, Inc. 1285 Avenue of the Americas
New York, NY 10019
Impulse Productions, Inc. Fax: (212) 757-3990
Attn: James M. Dubin
Lake Shore Press, Inc.
Lifestyle Brands, Ltd.
Mystique Films, Inc.
PEI Holdings, Inc.
Playboy Club of Hollywood, Inc.
Playboy Club of New York, Inc.
Playboy Clubs International, Inc.
Playboy Enterprises, Inc. to be renamed Playboy Enterprises International, Inc.
Playboy Entertainment Group, Inc.
Playboy Gaming International, Ltd.
Playboy Gaming Nevada, Inc.
Playboy Models, Inc.
Playboy of Lyons, Inc.
Playboy of Sussex, Inc.
Playboy Preferred, Inc.
Playboy Properties, Inc.
Playboy Shows, Inc.
Precious Films, Inc.
Special Editions, Ltd.
Steelton, Inc.
Telecom International, Inc.
Women Productions, Inc.
CPV Productions, Inc.
Cyberspice, Inc.
MH Pictures, Inc.
Spice Entertainment Companies, Inc.
Spice Direct, Inc.
Spice International, Inc.
Spice Networks, Inc.
Spice Productions, Inc.
Annex 1 to the
Subsidiary Guarantee Agreement
SUPPLEMENT NO. dated as of , to the Subsidiary
Guarantee Agreement dated as of March 15, 1999 (the "Subsidiary
Guarantee Agreement"), among each of the subsidiaries of Playboy
Enterprises, Inc. (f/k/a New Playboy, Inc.) (the "Company") listed
on Schedule I thereto (the "Subsidiary Guarantors"), and CREDIT
SUISSE FIRST BOSTON, a bank organized under the laws of
Switzerland, acting though its New York Branch ("CSFB"), as
collateral agent (in such capacity, the "Collateral Agent") for
the Secured Parties (as defined in the Credit Agreement referred
to below).
A. Reference is made to the Credit Agreement dated as of February 26, 1999,
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among the Company, PEI HOLDINGS, INC., a Delaware corporation and
wholly owned subsidiary of the Company ("PHI"), the Lenders (as defined in
Article I thereof), and CSFB, as administrative agent (in such capacity, the
"Administrative Agent"), as collateral agent (in such capacity, the "Collateral
Agent") and as issuing bank (in such capacity, the "Issuing Bank") for the
Lenders.
B. Capitalized terms used and not otherwise defined herein are used with
the meanings assigned to such terms in the Subsidiary Guarantee Agreement and
the Credit Agreement.
C. The Subsidiary Guarantors have entered into the Subsidiary Guarantee
Agreement in order to induce the Lenders to make Loans and the Issuing Bank to
issue Letters of Credit. Pursuant to Section 5.09 of the Credit Agreement, each
Restricted Subsidiary (other than any Foreign Subsidiary) that was not in
existence or not a Restricted Subsidiary on the date of the Credit Agreement is
required to enter into the Subsidiary Guarantee Agreement as a Subsidiary
Guarantor upon becoming a Restricted Subsidiary. Section 20 of the Subsidiary
Guarantee Agreement provides that additional Subsidiaries may become Subsidiary
Guarantors under the Subsidiary Guarantee Agreement by execution and delivery of
an instrument in the form of this Supplement. The undersigned Subsidiary of the
Company (the "New Subsidiary Guarantor") is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Subsidiary
Guarantor under the Subsidiary Guarantee Agreement in order to induce the
Lenders to make additional Loans and the Issuing Bank to issue additional
Letters of Credit and as consideration for Loans previously made and Letters of
Credit previously issued.
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Accordingly, the Collateral Agent and the New Subsidiary Guarantor agree as
follows:
SECTION 1. In accordance with Section 20 of the Subsidiary Guarantee
Agreement, the New Subsidiary Guarantor by its signature below becomes a
Subsidiary Guarantor under the Subsidiary Guarantee Agreement with the same
force and effect as if originally named therein as a Subsidiary Guarantor and
the New Subsidiary Guarantor hereby (a) agrees to all the terms and provisions
of the Subsidiary Guarantee Agreement applicable to it as a Subsidiary Guarantor
thereunder (including its guarantee of the Obligations) and (b) represents and
warrants that the representations and warranties made by it as a Subsidiary
Guarantor thereunder are true and correct on and as of the date hereof. Each
reference to a "Subsidiary Guarantor" in the Subsidiary Guarantee Agreement
shall be deemed to include the New Subsidiary Guarantor.
SECTION 2. The New Subsidiary Guarantor represents and warrants to the
Collateral Agent and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of which
shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Subsidiary Guarantor and the
Collateral Agent. Delivery of an executed signature page to this Supplement by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Subsidiary
Guarantee Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Subsidiary Guarantee Agreement shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision hereof in a particular jurisdiction shall not in and of
itself affect the validity of such provision in any other jurisdiction). The
parties hereto shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
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SECTION 7. All communications and notices hereunder shall be in writing and
given as provided in Section 14 of the Subsidiary Guarantee Agreement. All
communications and notices hereunder to the New Subsidiary Guarantor shall be
given to it at the address set forth under its signature below, with a copy to
the Company.
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the Collateral
Agent for its out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, disbursements and other charges of counsel for
the Collateral Agent.
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IN WITNESS WHEREOF, the New Subsidiary Guarantor and the Collateral Agent have
duly executed this Supplement to the Subsidiary Guarantee Agreement as of the
day and year first above written.
[Name Of New Subsidiary Guarantor],
by
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Name:
Title:
Address:
CREDIT SUISSE FIRST BOSTON, as
Collateral Agent,
by
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Name:
Title:
by
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Name:
Title: