SUBSIDIARIES GUARANTEE
GUARANTEE, dated as of March 24, 1998, made by each of the
entities that are signatories hereto (the "Guarantors"), in favor of CANADIAN
IMPERIAL BANK OF COMMERCE, as administrative agent (in such capacity, the
"Administrative Agent") for the lenders (the "Lenders") and CANADIAN IMPERIAL
BANK OF COMMERCE (the "Issuing Lender") parties to the Credit Agreement referred
to below.
RECITALS
Pursuant to the Credit Agreement, dated as of March 24, 1998
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the Lenders, the Issuing Lender and the
Administrative Agent, the Lenders have severally agreed to make loans to and the
Issuing Lender has agreed to issue letters of credit for the account of the
Borrower upon the terms and subject to the conditions set forth therein, such
loans to be evidenced by the Notes issued by the Borrower thereunder. The
Borrower owns directly or indirectly all of the issued and outstanding stock of
each Guarantor. The proceeds of the loans and extensions of credit will be used
in part to enable the Borrower to make valuable transfers (as determined as
provided herein) to some of the Guarantors in connection with the operation of
their respective businesses. The Borrower and the Guarantors are engaged in
related businesses, and each Guarantor will derive substantial direct and
indirect benefit from the making of the loans and extensions of credit. It is a
condition precedent to the obligation of the Lenders to make their respective
loans to the Borrower, and of the Issuing Lender to issue its letters of credit,
under the Credit Agreement that the Guarantors shall have executed and delivered
this Guarantee to the Administrative Agent for the ratable benefit of the
Lenders and the Issuing Lender.
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent and the Lenders to enter into the Credit Agreement and
to induce the Lenders to make their respective loans to the Borrower, and the
Issuing Lender to issue its letters of credit under the Credit Agreement, the
Guarantors hereby agree with the Administrative Agent, for the ratable benefit
of the Lenders and the Issuing Lender, as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guarantee shall refer to this Guarantee as a
whole and not to any
particular provision of this Guarantee, and section and paragraph references are
to this Guarantee unless otherwise specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Guarantee. (a) Subject to the provisions of Section 2(b),
each of the Guarantors hereby, jointly and severally, unconditionally and
irrevocably, guarantees to the Administrative Agent, for the ratable benefit of
the Lenders and the Issuing Lender and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and performance by the
Borrower when due (whether at the stated maturity, by acceleration or otherwise)
of the Obligations.
(b) Anything herein or in any other Loan Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Loan Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating to
the insolvency of debtors.
(c) Each Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of counsel) which may
be paid or incurred by the Administrative Agent or any Lender in enforcing, or
obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Obligations and/or enforcing any rights with
respect to, or collecting against, such Guarantor under this Guarantee. This
Guarantee shall remain in full force and effect until the Obligations are paid
in full and the Commitments are terminated, notwithstanding that from time to
time prior thereto the Borrower may be free from any Obligations.
(d) Each Guarantor agrees that the Obligations may at any time
and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing this Guarantee or affecting the rights and remedies
of the Administrative Agent or any Lender or the Issuing Lender hereunder.
(e) No payment or payments made by the Borrower, any of the
Guarantors, any other guarantor or any other Person or received or collected by
the Administrative Agent or any Lender from the Borrower, any of the Guarantors,
any other guarantor or any other Person by virtue of any action or proceeding or
any set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which
shall, notwithstanding any such payment or payments other than payments made by
such Guarantor in respect of the Obligations or payments received or collected
from such Guarantor in respect of the Obligations, remain liable for the
Obligations up to the maximum liability of such Guarantor hereunder until the
Obligations are paid in full and the Commitments are terminated.
(f) Each Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent or any
Lender or the Issuing Lender on
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account of its liability hereunder, it will notify the Administrative Agent in
writing that such payment is made under this Guarantee for such purpose.
3. Right of Contribution. Each Guarantor hereby agrees that to
the extent that a Guarantor shall have paid more than its proportionate share of
any payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder who has not paid its
proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 5 hereof. The provisions
of this Section shall in no respect limit the obligations and liabilities of any
Guarantor to the Administrative Agent and the Lenders and the Issuing Lender,
and each Guarantor shall remain liable to the Administrative Agent and the
Lenders and the Issuing Lender for the full amount guaranteed by such Guarantor
hereunder.
4. Right of Set-off. Upon the occurrence of any Event of
Default, each Guarantor hereby irrevocably authorizes each Lender and the
Issuing Lender at any time and from time to time without notice to such
Guarantor or any other Guarantor, any such notice being expressly waived by each
Guarantor, to set-off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or the Issuing Lender to or for the credit or the account
of such Guarantor, or any part thereof in such amounts as such Lender or the
Issuing Lender may elect, against and on account of the obligations and
liabilities of such Guarantor to such Lender or the Issuing Lender hereunder and
claims of every nature and description of such Lender or the Issuing Lender
against such Guarantor, in any currency, whether arising hereunder, under the
Credit Agreement, any Note, any Loan Documents or otherwise, as such Lender or
the Issuing Lender may elect, whether or not the Administrative Agent, any
Lender or the Issuing Lender has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. The
Administrative Agent, each Lender and the Issuing Lender shall notify such
Guarantor promptly of any such set-off and the application made by the
Administrative Agent, such Lender or the Issuing Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Administrative Agent, each Lender and the Issuing
Lender under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the
Administrative Agent, such Lender or the Issuing Lender may have.
5. No Subrogation. Notwithstanding any payment or payments
made by any of the Guarantors hereunder or any set-off or application of funds
of any of the Guarantors by any Lender or the Issuing Lender, no Guarantor shall
be entitled to be subrogated to any of the rights of the Administrative Agent,
any Lender or the Issuing Lender against the Borrower or any other Guarantor or
any collateral security or guarantee or right of offset held by any Lender or
the Issuing Lender for the payment of the Obligations, nor shall any Guarantor
seek or be entitled to seek any contribution or reimbursement from the Borrower
or any other Guarantor in respect of payments made by such Guarantor hereunder,
until all amounts owing to the Administrative Agent, the Lenders and the Issuing
Lender by the Borrower on account
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of the Obligations are paid in full and the Commitments are terminated. If any
amount shall be paid to any Guarantor on account of such subrogation rights at
any time when all of the Obligations shall not have been paid in full, such
amount shall be held by such Guarantor in trust for the Administrative Agent,
the Lenders and the Issuing Lender, segregated from other funds of such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over
to the Administrative Agent in the exact form received by such Guarantor (duly
indorsed by such Guarantor to the Administrative Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
the Administrative Agent may determine.
6. Amendments, etc. with respect to the Obligations; Waiver of
Rights. Each Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Guarantor and without notice to or
further assent by any Guarantor, any demand for payment of any of the
Obligations made by the Administrative Agent, any Lender or the Issuing Lender
may be rescinded by such party and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Administrative Agent, any Lender or the Issuing Lender, and the Credit
Agreement, the Notes and the other Loan Documents and any other documents
executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Administrative Agent (or
the Required Lenders, as the case may be) may deem advisable from time to time,
and any collateral security, guarantee or right of offset at any time held by
the Administrative Agent, any Lender or the Issuing Lender for the payment of
the Obligations may be sold, exchanged, waived, surrendered or released. None of
the Administrative Agent nor any Lender nor the Issuing Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the Obligations or for this Guarantee or any property subject
thereto. When making any demand hereunder against any of the Guarantors, the
Administrative Agent, any Lender or the Issuing Lender may, but shall be under
no obligation to, make a similar demand on the Borrower or any other Guarantor
or guarantor, and any failure by the Administrative Agent, any Lender or the
Issuing Lender to make any such demand or to collect any payments from the
Borrower or any such other Guarantor or guarantor or any release of the Borrower
or such other Guarantor or guarantor shall not relieve any of the Guarantors in
respect of which a demand or collection is not made or any of the Guarantors not
so released of their several obligations or liabilities hereunder, and shall not
impair or affect the rights and remedies, express or implied, or as a matter of
law, of the Administrative Agent, any Lender or the Issuing Lender against any
of the Guarantors. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
7. Guarantee Absolute and Unconditional. Each Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent, any
Lender or the Issuing Lender upon this Guarantee or acceptance of this
Guarantee, the Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon this Guarantee; and all dealings between the Borrower
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and any of the Guarantors, on the one hand, and the Administrative Agent, the
Lenders and the Issuing Lender, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon this
Guarantee. Each Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Borrower or any of
the Guarantors with respect to the Obligations. Each Guarantor understands and
agrees that this Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity,
regularity or enforceability of the Credit Agreement, any Note or any other Loan
Document, any of the Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Administrative Agent, any Lender or the Issuing Lender, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrower against the Administrative Agent, any Lender or the Issuing Lender, or
(c) any other circumstance whatsoever (with or without notice to or knowledge of
the Borrower or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for the Obligations,
or of such Guarantor under this Guarantee, in bankruptcy or in any other
instance. When pursuing its rights and remedies hereunder against any Guarantor,
the Administrative Agent, any Lender and the Issuing Lender may, but shall be
under no obligation to, pursue such rights and remedies as it may have against
the Borrower or any other Person or against any collateral security or guarantee
for the Obligations or any right of offset with respect thereto, and any failure
by the Administrative Agent, any Lender or the Issuing Lender to pursue such
other rights or remedies or to collect any payments from the Borrower or any
such other Person or to realize upon any such collateral security or guarantee
or to exercise any such right of offset, or any release of the Borrower or any
such other Person or any such collateral security, guarantee or right of offset,
shall not relieve such Guarantor of any liability hereunder, and shall not
impair or affect the rights and remedies, whether express, implied or available
as a matter of law, of the Administrative Agent, the Lenders and the Issuing
Lender against such Guarantor. This Guarantee shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon
each Guarantor and the successors and assigns thereof, and shall inure to the
benefit of the Administrative Agent, the Lenders and the Issuing Lender, and
their respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of each Guarantor under this Guarantee shall
have been satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
the Borrower may be free from any Obligations.
8. Reinstatement. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent, any Lender or the Issuing
Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or any Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been made.
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9. Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in U.S. Dollars at the office of the Administrative Agent specified
in Section 11.2 of the Credit Agreement.
10. Representations and Warranties. Each Guarantor hereby
represents and warrants that:
(a) it is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has the
corporate power and authority and the legal right to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged;
(b) it has the corporate power and authority and the legal
right to execute and deliver, and to perform its obligations under, this
Guarantee and the other Loan Documents to which is a party, and has taken all
necessary corporate action to authorize its execution, delivery and performance
of this Guarantee and the other Loan Documents to which is a party;
(c) this Guarantee and each of the other Loan Documents to
which such Guarantor is a party has been duly executed and delivered on behalf
of such Guarantor, and constitutes a legal, valid and binding obligation of such
Guarantor enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered on a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing;
(d) the execution, delivery and performance of this Guarantee
and the other Loan Documents to which such Guarantor is a party will not violate
any provision of any Requirement of Law or Contractual Obligation of such
Guarantor and will not result in or require the creation or imposition of any
Lien on any of the properties or revenues of such Guarantor pursuant to any
Requirement of Law or Contractual Obligation of the Guarantor (other than Liens
created by the Security Documents in favor of the Administrative Agent);
(e) no consent or authorization of, filing with, notice to, or
other act by or in respect of, any Governmental Authority or any other Person
(including, without limitation, any stockholder or creditor of such Guarantor)
is required in connection with the execution, delivery, performance, validity or
enforceability of this Guarantee or the other Loan Documents to which such
Guarantor is a party;
(f) no litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the knowledge of such
Guarantor, threatened by or against such Guarantor or against any of its
properties or revenues (i) with respect to this Guarantee or any other Loan
Document to which such Guarantor is a party or any of the transactions
contemplated hereby or thereby, or (ii) which could have a material adverse
effect on the business, operations, property or financial or other condition of
such Guarantor;
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(g) it has good record and marketable title in fee simple to,
or a valid leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other property, and none of such property
is subject to any Lien of any nature whatsoever except such as are disclosed in
the balance sheet referred to in Section 10(i) hereof and as are permitted by
Section 10.3 of the Credit Agreement;
(h) it has filed or caused to be filed on its behalf all tax
returns which, to its knowledge, are required to be filed and has paid all taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority (other than any the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of such Guarantor); no tax Lien has been
filed, and, to the knowledge of such Guarantor, no claim is being asserted, with
respect to any such tax, fee or other charge;
(i) The unaudited balance sheet of such Guarantor as at August
31, 1997 and the related unaudited statement of income and of cash flows for the
twelve-month period ended on such date, certified by a Responsible Officer,
copies of which have heretofore been furnished to each Lender and the Issuing
Lender, are complete and correct and present fairly the financial condition of
such Guarantor as at such date, and the results of its operations and its cash
flows for the three-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed therein). At the date
of the most recent balance sheet referred to above, such Guarantor had no
material Guarantee Obligation, contingent liability or liability for taxes, or
any long-term lease or unusual forward or long-term commitment, including,
without limitation, any interest rate or foreign currency swap or exchange
transaction or other financial derivative, which is not reflected in the
foregoing statements or in the notes thereto. During the period from August 31,
1997, to and including the date hereof there has been no sale, transfer or other
disposition by such Guarantor of any material part of its business or property
and no purchase or other acquisition of any business or property (including any
Capital Stock of any other Person) material in relation to the financial
condition of such Guarantor at August 31, 1997.
Each Guarantor agrees that the foregoing representations and
warranties shall be deemed to have been made by such Guarantor on the date of
each borrowing by the Borrower, and the date of each issuance of a Letter of
Credit, under the Credit Agreement on and as of such date of borrowing as though
made hereunder on and as of such date.
11. Limitation of Liability. Notwithstanding the provisions of
Section 2, no Guarantor shall have any personal liability for payment of the
Obligations, and in any action or suit to collect the Obligations the
Administrative Agent, the Lenders and the Issuing Lender shall not seek any in
personam judgment against any Guarantor or any judgment for a deficiency but
shall look solely to the security interests created under and the collateral
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described in the documents set forth in Schedule 1 attached hereto (the
"Guarantor Security Documents") to which such Guarantor is a party for payment
of the Obligations. Nothing contained in this Section shall be construed to
impair the validity of the Obligations or affect or impair in any way the right
of the Administrative Agent, the Lenders and the Issuing Lender to exercise
their rights and remedies under the Credit Agreement, the Notes and any other
Loan Documents in accordance with their respective terms.
12. Authority of Administrative Agent. Each Guarantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Guarantee with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee shall, as between the Administrative
Agent and the Lenders and the Issuing Lender, be governed by the Credit
Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Administrative Agent and such
Guarantor, the Administrative Agent shall be conclusively presumed to be acting
as Administrative Agent for the Lenders and the Issuing Lender with full and
valid authority so to act or refrain from acting, and no Guarantor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
13. Notices. All notices, requests and demands to or upon the
Administrative Agent, any Lender, the Issuing Lender or any Guarantor to be
effective shall be in writing (or by telex, fax or similar electronic transfer
confirmed in writing) and shall be deemed to have been duly given or made (1)
when delivered by hand or (2) if given by mail, when deposited in the mails by
certified mail, return receipt requested, or (3) if by telex, fax or similar
electronic transfer, when sent and receipt has been confirmed, addressed as
follows:
(a) if to the Administrative Agent, any Lender or the Issuing
Lender, at its address or transmission number for notices provided in Section
13.2 of the Credit Agreement; and
(b) if to any Guarantor, at its address or transmission number
for notices set forth under its signature below.
The Administrative Agent, each Lender, the Issuing Lender and
each Guarantor may change its address and transmission numbers for notices by
notice in the manner provided in this Section.
14. Counterparts. This Guarantee may be executed by one or
more of the Guarantors on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the counterparts of this Guarantee signed by all the
Guarantors shall be lodged with the Administrative Agent.
15. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and
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any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
16. Integration. This Guarantee represents the agreement of
each Guarantor with respect to the subject matter hereof and there are no
promises or representations by the Administrative Agent, any Lender or the
Issuing Lender relative to the subject matter hereof not reflected herein.
17. Amendments in Writing; No Waiver; Cumulative Remedies. (a)
None of the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
each Guarantor and the Administrative Agent, provided that any provision of this
Guarantee may be waived by the Administrative Agent, the Lenders and the Issuing
Lender in a letter or agreement executed by the Administrative Agent or by telex
or facsimile transmission from the Administrative Agent.
(b) None of the Administrative Agent nor any Lender nor the
Issuing Lender shall by any act (except by a written instrument pursuant to
Section 19(a) hereof), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any Default
or Event of Default or in any breach of any of the terms and conditions hereof.
No failure to exercise, nor any delay in exercising, on the part of the
Administrative Agent, any Lender or the Issuing Lender, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Administrative Agent, any Lender or the Issuing Lender of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which the Administrative Agent, such Lender or the Issuing
Lender would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
18. Section Headings. The section headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
19. Successors and Assigns. This Guarantee shall be binding
upon the successors and assigns of each Guarantor and shall inure to the benefit
of the Administrative Agent and the Lenders and their successors and assigns.
20. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
21. Submission To Jurisdiction; Waivers. Each of the
Guarantors hereby irrevocably and unconditionally:
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(a) submits for itself and its property in any legal action or
proceeding relating to this Guarantee and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such
Guarantor at its address set forth under its signature below or at such other
address of which the Administrative Agent shall have been notified pursuant
hereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential damages.
22. Acknowledgments. Each Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Guarantee and the other Loan Documents to which
it is a party;
(b) none of the Administrative Agent nor any Lender nor the
Issuing Lender has any fiduciary relationship with or duty to such Guarantor
arising out of or in connection with this Guarantee or any of the other Loan
Documents to which it is a party, and the relationship between such Guarantor,
the Borrower and the other Loan Parties, on one hand, and Administrative Agent
and Lenders and the Issuing Lender, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders and the Issuing Lender or among such Guarantor, the Borrower,
any of the other Loan Parties and the Lenders and the Issuing Lender.
23. WAIVERS OF JURY TRIAL. EACH GUARANTOR HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS GUARANTEE OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
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24. Additional Guarantors. Each Subsidiary of the Borrower is
required pursuant to Section 9.9 of the Credit Agreement to become party to this
Subsidiaries Guarantee and shall become a Guarantor for all purposes of this
Subsidiaries Guarantee upon execution and delivery by such Subsidiary of a
Supplement in the form of Annex A hereto
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IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee to be duly executed and delivered by its duly authorized officer as of
the day and year first above written.
UNIDIGITAL ELEMENTS (NY), INC.
By:/s/ William E. Dye
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Title: Chief Executive Officer
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Addresss for Notices:
Telex:
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Fax:
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UNIDIGITAL ELEMENTS (SF), INC.
By:/s/ William E. Dye
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Title: Chief Executive Officer
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Addresss for Notices:
Telex:
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Fax:
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UNISON (NY), INC.
By:/s/ William E. Dye
-------------------------------------
Title: Chief Executive Officer
----------------------------------
Addresss for Notices:
Telex:
----------------------------------
Fax:
------------------------------------
UNISON (MA), INC.
By:/s/ William E. Dye
-------------------------------------
Title: Chief Executive Officer
----------------------------------
Addresss for Notices:
Telex:
----------------------------------
Fax:
------------------------------------
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