EXHIBIT 10.03
EXECUTION COPY
GUARANTY
This GUARANTY ("Guaranty") is made as of the ___ day of February,
1998, by [_______________], a [___________] corporation (the "Guarantor"), in
favor of the "Holders of Secured Obligations" under (and as defined in) that
certain Credit Agreement, of even date herewith, by and among IFR SYSTEMS, INC.
(the "Borrower"), the financial institutions from time to time parties thereto
(collectively the "Lenders") and The First National Bank of Chicago, in its
capacity as contractual representative for the Holders of Secured Obligations
(the "Agent"). Such Credit Agreement, as it may be amended, modified or
supplemented from time to time, is hereinafter referred to as the "Credit
Agreement". Unless otherwise defined herein, capitalized terms used herein
shall have the meanings ascribed to them in the Credit Agreement.
1. GUARANTY. (i) For value received and in consideration of any
loan, advance or financial accommodation of any kind whatsoever heretofore, now
or hereafter made, given or granted to the Borrower by the Holders of Secured
Obligations, the Guarantor unconditionally guarantees for the benefit of each of
the Holders of Secured Obligations the full and prompt payment when due, whether
at maturity or earlier, by reason of acceleration or otherwise, and at all times
thereafter, of all of the Secured Obligations (including, without limitation,
interest accruing following the filing of a bankruptcy petition by or against
the Borrower, at the applicable rate specified in the Credit Agreement, whether
or not such interest is allowed as a claim in bankruptcy).
(ii) At any time after the occurrence of a Default, the Guarantor
shall pay to the Agent, for the benefit of the Holders of Secured Obligations,
on demand and in immediately available funds, the full amount of the Secured
Obligations (including any portion thereof which is not yet due and payable).
The Guarantor further agrees to pay to the Agent and reimburse the Agent for, on
demand and in immediately available funds, (a) all losses (including, without
limitation, lost profits), fees, costs and expenses (including, without
limitation, all court costs and attorneys' and paralegals' fees, costs and
expenses) paid or incurred by the Agent or any of the Holders of Secured
Obligations in: (1) endeavoring to collect all or any part of the Secured
Obligations from, or in prosecuting any action against, the Borrower or the
Guarantor relating to the Credit Agreement, this Guaranty or the transactions
contemplated thereby; (2) taking any action with respect to any security or
collateral securing the Secured Obligations or the Guarantor's obligations
hereunder; and (3) preserving, protecting or defending the enforceability of, or
enforcing, this Guaranty or their respective rights hereunder (all such costs
and expenses are hereinafter referred to as the "Expenses") and (b) interest on
(1) the Secured Obligations which do not constitute interest, (2) to the extent
permitted by applicable law, the Secured Obligations which constitute interest,
and (3) the Expenses, from the date of demand under this Guaranty until paid in
full at the per annum rate of interest described in Section 2.11 of the Credit
Agreement (the "Interest Rate"). The Guarantor hereby agrees that this Guaranty
is an absolute guaranty of payment and is not a guaranty of collection.
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2. OBLIGATIONS UNCONDITIONAL. The Guarantor hereby agrees that its
obligations under this Guaranty shall be unconditional, irrespective of:
(i) the validity, enforceability, avoidance, novation or subordination
of any of the Secured Obligations or any of the Loan Documents;
(ii) the absence of any attempt by, or on behalf of, any Holder of
Secured Obligations or the Agent to collect, or to take any other action to
enforce, all or any part of the Secured Obligations whether from or against
the Borrower, any other guarantor of the Secured Obligations or any other
Person;
(iii) the election of any remedy by, or on behalf of, any Holder of
Secured Obligations or the Agent with respect to all or any part of the
Secured Obligations;
(iv) the waiver, consent, extension, forbearance or granting of any
indulgence by, or on behalf of, any Holder of Secured Obligations or the
Agent with respect to any provision of any of the Loan Documents;
(v) the failure of the Agent to take any steps to perfect and maintain
its security interest in, or to preserve its rights to, any security or
collateral for the Secured Obligations;
(vi) the election by, or on behalf of, any one or more of the Holders
of Secured Obligations, in any proceeding instituted under Chapter 11 of
Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the "Bankruptcy
Code"), of the application of Section 1111(b)(2) of the Bankruptcy Code;
(vii) any borrowing or grant of a security interest by the Borrower,
as debtor-in-possession, under Section 364 of the Bankruptcy Code;
(viii) the disallowance, under Section 502 of the Bankruptcy Code, of
all or any portion of the claims of any of the Holders of Secured
Obligations or the Agent for repayment of all or any part of the Secured
Obligations or any Expenses; or
(ix) any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of the Borrower or the Guarantor.
3. ENFORCEMENT; APPLICATION OF PAYMENTS. Upon the occurrence of a
Default, the Agent may proceed directly and at once, without notice, against the
Guarantor to obtain performance of and to collect and recover the full amount,
or any portion, of the Secured Obligations, without first proceeding against the
Borrower or any other Person, or against any security or collateral for the
Secured Obligations. Subject only to the terms and provisions of the Credit
Agreement, the Agent shall have the exclusive right to determine the application
of payments and credits, if any, from the Guarantor, the Borrower or from any
other Person on account of the Secured Obligations or any other liability of the
Guarantor to any Holder of Secured Obligations.
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4. REPRESENTATIONS AND WARRANTIES. The Guarantor represents and
warrants as follows to each Holder of Secured Obligations and the Agent as of
the date hereof:
(i) The Guarantor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its organization, (b) is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction in which failure to be so qualified and in good standing
could reasonably be expected to have a Material Adverse Effect, and
(c) has all requisite corporate power and authority to own, operate
and encumber its property;
(ii) The Guarantor has the requisite corporate power and
authority to execute, deliver and perform this Guaranty and any other
document required to be delivered by it under the Credit Agreement,
and this Guaranty has been duly executed and delivered and constitutes
the legal, valid and binding obligation of the Guarantor enforceable
against the Guarantor in accordance with its terms; and
(iii) The execution, delivery and performance of this
Guaranty do not and will not (a) conflict with the Articles of
Incorporation or by-laws of the Guarantor, (b) require any approval of
the Guarantor's shareholders except such as has been obtained, (c)
require any approval or consent of any Person or Governmental
Authority, or under the terms of any material agreement, and (d) will
not result in or require the creation of any lien or security interest
upon or with respect to any of the properties or assets of the
Guarantor other than pursuant to the Loan Documents.
5. WAIVERS. (i) The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of receivership or
bankruptcy of the Borrower, protest or notice with respect to the Secured
Obligations, all setoffs and counterclaims and all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor and notices of acceptance of this Guaranty, the benefits of all
statutes of limitation, and all other demands whatsoever (and shall not require
that the same be made on the Borrower as a condition precedent to the
Guarantor's obligations hereunder), and covenants that this Guaranty will not be
discharged, except by complete payment (in cash) and performance of the Secured
Obligations and any other obligations contained herein. The Guarantor further
waives all notices of the existence, creation or incurring of new or additional
indebtedness, arising either from additional loans extended to the Borrower or
otherwise, and also waives all notices that the principal amount, or any portion
thereof, and/or any interest on any instrument or document evidencing all or any
part of the Secured Obligations is due, notices of any and all proceedings to
collect from the maker, any endorser or any other guarantor of all or any part
of the Secured Obligations, or from any other Person, and, to the extent
permitted by law, notices of exchange, sale,
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surrender or other handling of any security or collateral given to the Agent to
secure payment of all or any part of the Secured Obligations.
(ii) The Guarantor understands that it shall be liable for the full
amount of its liability under this Guaranty, notwithstanding foreclosure of any
real property securing all or any part of the Secured Obligations by trustee
sale or any other reason impairing the right of the Guarantor, the Agent or any
of the Holders of Secured Obligations to proceed against the Borrower, any other
guarantor or the Borrower's or such guarantor's property. The Guarantor agrees
that all of its obligations under this Guaranty (including its obligation to pay
in full all indebtedness evidenced by or arising under the Credit Agreement)
shall remain in full force and effect without defense, offset or counterclaim of
any kind, notwithstanding that the Guarantor's rights against the Borrower may
be impaired, destroyed or otherwise affected by reason of any action or inaction
on the part of the Agent or any Holder of Secured Obligations.
(iii) The Guarantor hereby expressly waives the benefits of any law
in any jurisdiction applicable to this Guaranty purporting to allow a guarantor
to revoke a continuing guaranty with respect to any transactions occurring after
the date of the guaranty.
(iv) The Holders of Secured Obligations, either themselves or acting
through the Agent, may from time to time in their sole discretion, without
notice or demand and without affecting the liability of the Guarantor hereunder,
(a) renew, extend, accelerate or otherwise change the time for payment of, or
other terms relating to, all or any part of the Secured Obligations, or
otherwise modify, amend or change the terms of any of the Loan Documents;
(b) accept partial payments on all or any part of the Secured Obligations;
(c) take and hold security or collateral for the payment of all or any part of
the Secured Obligations, this Guaranty, or any other guaranties of all or any
part of the Secured Obligations or other liabilities of the Borrower, (d)
exchange, enforce, waive and release any such security or collateral; (e) apply
such security or collateral and direct the order or manner of sale thereof as in
their discretion they may determine; (f) settle, release, exchange, enforce,
waive, compromise or collect or otherwise liquidate all or any part of the
Secured Obligations, this Guaranty, any other guaranty of all or any part of the
Secured Obligations, and any security or collateral for the Secured Obligations
or for any such guaranty; and/or (g) otherwise deal with the Borrower or any
other Person that may become liable for all or any part of the Secured
Obligations. Any of the foregoing may be done in any manner, without affecting
or impairing the obligations of the Guarantor hereunder.
6. SETOFF. At any time after all or any part of the Secured
Obligations have become due and payable (by acceleration or otherwise), each
Holder of Secured Obligations and the Agent may, without notice to the Guarantor
and regardless of the acceptance of any security or collateral for the payment
hereof, appropriate and apply toward the payment of all or any part of the
Secured Obligations (i) any indebtedness due or to become due from such Holder
of Secured Obligations or the Agent to the Guarantor, and (ii) any moneys,
credits or other property belonging to the Guarantor, at any time held by or
coming into the possession of such Holder of Secured Obligations or the Agent or
any of their respective affiliates.
7. FINANCIAL INFORMATION. The Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Borrower and any and all endorsers
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and/or other guarantors of all or any part of the Secured Obligations, and of
all other circumstances bearing upon the risk of nonpayment of the Secured
Obligations, or any part thereof, that diligent inquiry would reveal, and the
Guarantor hereby agrees that none of the Holders of Secured Obligations nor the
Agent shall have any duty to advise the Guarantor of information known to any of
them regarding such condition or any such circumstances. In the event any
Holder of Secured Obligations, in its sole discretion, undertakes at any time or
from time to time to provide any such information to the Guarantor, such Holder
of Secured Obligations shall be under no obligation (i) to undertake any
investigation not a part of its regular business routine, (ii) to disclose any
information which such Holder of Secured Obligations, pursuant to accepted or
reasonable commercial finance or banking practices, wishes to maintain
confidential or (iii) to make any other or future disclosures of such
information or any other information to the Guarantor.
8. NO MARSHALLING; REINSTATEMENT. The Guarantor consents and agrees
that none of the Holders of Secured Obligations nor the Agent nor any Person
acting for or on behalf of the Holders of Secured Obligations or the Agent shall
be under any obligation to marshall any assets in favor of the Guarantor or
against or in payment of any or all of the Secured Obligations. The Guarantor
further agrees that, to the extent that the Borrower, the Guarantor or any other
guarantor of all or any part of the Secured Obligations makes a payment or
payments to any Holder of Secured Obligations or the Agent, or any Holder of
Secured Obligations or the Agent receives any proceeds of Collateral, which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to the
Borrower, the Guarantor, such other guarantor or any other Person, or their
respective estates, trustees, receivers or any other party, including, without
limitation, the Guarantor, under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such payment or repayment,
the part of the Secured Obligations which has been paid, reduced or satisfied by
such amount shall be reinstated and continued in full force and effect as of the
time immediately preceding such initial payment, reduction or satisfaction.
9. SUBROGATION. Until the Secured Obligations have been paid in
full, the Guarantor (i) shall have no right of subrogation with respect to such
Secured Obligations and (ii) waives any right to enforce any remedy which the
Holders of Secured Obligations or the Agent (or any of them) now have or may
hereafter have against the Borrower, any endorser or any guarantor of all or any
part of the Secured Obligations or any other Person, and the Guarantor waives
any benefit of, and any right to participate in, any security or collateral
given to the Holders of Secured Obligations and the Agent (or any of them) to
secure the payment or performance of all or any part of the Secured Obligations
or any other liability of the Borrower to the Holders of Secured Obligations.
10. SUBORDINATION. The Guarantor agrees that any and all claims of
the Guarantor against the Borrower, any endorser or any other guarantor of all
or any part of the Secured Obligations, or against any of their respective
properties, shall be subordinate and subject in right of payment to the prior
payment, in full and in cash, of all Secured Obligations. Notwithstanding any
right of the Guarantor to ask, demand, sue for, take or receive any payment from
the Borrower, all rights, liens and security interests of the Guarantor, whether
now or hereafter arising and howsoever existing, in any assets of the Borrower
(whether constituting part of the security or collateral given to any Holder of
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Secured Obligations or the Agent to secure payment of all or any part of the
Secured Obligations or otherwise) shall be and hereby are subordinated to the
rights of the Holders of Secured Obligations and the Agent in those assets. The
Guarantor shall have no right to possession of any such asset or to foreclose
upon any such asset, whether by judicial action or otherwise, unless and until
all of the Secured Obligations shall have been fully paid and satisfied and all
financing arrangements between the Borrower and the Holders of Secured
Obligations have been terminated. If all or any part of the assets of the
Borrower, or the proceeds thereof, are subject to any distribution, division or
application to the creditors of the Borrower, whether partial or complete,
voluntary or involuntary, and whether by reason of liquidation, bankruptcy,
arrangement, receivership, assignment for the benefit of creditors or any other
action or proceeding, or if the business of the Borrower is dissolved or if
substantially all of the assets of the Borrower are sold, then, and in any such
event, any payment or distribution of any kind or character, either in cash,
securities or other property, which shall be payable or deliverable upon or with
respect to any indebtedness of the Borrower to the Guarantor ("Borrower
Indebtedness") shall be paid or delivered directly to the Agent for application
on any of the Secured Obligations, due or to become due, until such Secured
Obligations shall have first been fully paid and satisfied. The Guarantor
irrevocably authorizes and empowers the Agent to demand, sue for, collect and
receive every such payment or distribution and give acquittance therefor and to
make and present for and on behalf of the Guarantor such proofs of claim and
take such other action, in the Agent's own name or in the name of the Guarantor
or otherwise, as the Agent may deem necessary or advisable for the enforcement
of this Guaranty. The Agent may vote such proofs of claim in any such
proceeding, receive and collect any and all dividends or other payments or
disbursements made thereon in whatever form the same may be paid or issued and
apply the same on account of any of the Secured Obligations. Should any
payment, distribution, security or instrument or proceeds thereof be received by
the Guarantor upon or with respect to the Borrower Indebtedness prior to the
satisfaction of all of the Secured Obligations and the termination of all
financing arrangements between the Borrower and the Holders of Secured
Obligations, the Guarantor shall receive and hold the same in trust, as trustee,
for the benefit of the Holders of Secured Obligations and shall forthwith
deliver the same to the Agent, for the benefit of the Holders of Secured
Obligations, in precisely the form received (except for the endorsement or
assignment of the Guarantor where necessary), for application to any of the
Secured Obligations, due or not due, and, until so delivered, the same shall be
held in trust by the Guarantor as the property of the Holders of Secured
Obligations. If the Guarantor fails to make any such endorsement or assignment
to the Agent, the Agent or any of its officers or employees are hereby
irrevocably authorized to make the same. The Guarantor agrees that until the
Secured Obligations have been paid in full (in cash) and satisfied and all
financing arrangements between the Borrower and the Holders of Secured
Obligations have been terminated, the Guarantor will not assign or transfer to
any Person any claim the Guarantor has or may have against the Borrower.
11. ENFORCEMENT; AMENDMENTS; WAIVERS. No delay on the part of any of
the Holders of Secured Obligations or the Agent in the exercise of any right or
remedy arising under this Guaranty, the Credit Agreement, any of the other Loan
Documents or otherwise with respect to all or any part of the Secured
Obligations, the Collateral or any other guaranty of or security for all or any
part of the Secured Obligations shall operate as a waiver thereof, and no single
or partial exercise by any such Person of any such right or remedy shall
preclude any further exercise thereof. No modification or waiver of any of the
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provisions of this Guaranty shall be binding upon the Holders of Secured
Obligations or the Agent, except as expressly set forth in a writing duly signed
and delivered by the party making such modification or waiver. Failure by any
of the Holders of Secured Obligations or the Agent at any time or times
hereafter to require strict performance by the Borrower, the Guarantor, any
other guarantor of all or any part of the Secured Obligations or any other
Person of any of the provisions, warranties, terms and conditions contained in
any of the Loan Documents now or at any time or times hereafter executed by such
Persons and delivered to the Agent or any Holder of Secured Obligations shall
not waive, affect or diminish any right of the Agent or such Holder of Secured
Obligations at any time or times hereafter to demand strict performance thereof
and such right shall not be deemed to have been waived by any act or knowledge
of the Agent or any Holder of Secured Obligations, or their respective agents,
officers or employees, unless such waiver is contained in an instrument in
writing, directed and delivered to the Borrower or the Guarantor, as applicable,
specifying such waiver, and is signed by the party or parties necessary to give
such waiver under the Credit Agreement. No waiver of any Default by the Agent
or any Holder of Secured Obligations shall operate as a waiver of any other
Default or the same Default on a future occasion, and no action by the Agent or
any Holder of Secured Obligations permitted hereunder shall in any way affect or
impair the Agent's or any Holder of Secured Obligations's rights and remedies or
the obligations of the Guarantor under this Guaranty. Any determination by a
court of competent jurisdiction of the amount of any principal and/or interest
owing by the Borrower to any of the Holders of Secured Obligations shall be
conclusive and binding on the Guarantor irrespective of whether the Guarantor
was a party to the suit or action in which such determination was made.
12. EFFECTIVENESS; TERMINATION. This Guaranty shall become effective
upon its execution by the Guarantor and shall continue in full force and effect
and may not be terminated or otherwise revoked until the Secured Obligations
shall have been fully paid (in cash) and discharged and the Credit Agreement and
all financing arrangements between the Borrower and the Holders of Secured
Obligations shall have been terminated. If, notwithstanding the foregoing, the
Guarantor shall have any right under applicable law to terminate or revoke this
Guaranty, the Guarantor agrees that such termination or revocation shall not be
effective until a written notice of such revocation or termination, specifically
referring hereto, signed by the Guarantor, is actually received by the Agent.
Such notice shall not affect the right and power of any of the Holders of
Secured Obligations or the Agent to enforce rights arising prior to receipt
thereof by the Agent. If any Holder of Secured Obligations grants loans or
takes other action after the Guarantor terminates or revokes this Guaranty but
before the Agent receives such written notice, the rights of such Holder of
Secured Obligations with respect thereto shall be the same as if such
termination or revocation had not occurred.
13. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon the
Guarantor and upon its successors and assigns and shall inure to the benefit of
the Holders of Secured Obligations and the Agent and their respective successors
and assigns; all references herein to the Borrower and to the Guarantor shall be
deemed to include their respective successors and assigns. The successors and
assigns of the Guarantor and the Borrower shall include, without limitation,
their respective receivers, trustees or debtors-in-possession. All references
to the singular shall be deemed to include the plural where the context so
requires.
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14. OFFICER AUTHORITY. The Guarantor authorizes its Chairman,
President, and each of its Executive Vice Presidents and Vice Presidents,
respectively, from time to time, severally and not jointly, on behalf and in the
name of the Guarantor from time to time in the discretion of such officer, to
take or omit to take any and all action and to execute and deliver any and all
documents and instruments which such officer may determine to be necessary or
desirable in relation to, and perform any obligations arising in connection
with, this Guaranty and any of the transactions contemplated hereby, and,
without limiting the generality of the foregoing, hereby gives to each such
officer severally the power and right on behalf of the Guarantor, without notice
to or assent by the Guarantor, to do all or any of the following: (i) to execute
and deliver any amendment, waiver, consent, supplement, other modification or
reaffirmation of this Guaranty or any document relating hereto, and to perform
any obligation arising in connection herewith or therewith; (ii) to sell,
transfer, assign, encumber or otherwise deal in or with any security for this
Guaranty or any part thereof; (iii) to grant liens, security interests or other
encumbrances on or in respect of any property or assets of the Guarantor,
whether now owned or hereafter acquired, in favor of the Holders of Secured
Obligations and the Agent; (iv) to send notices, directions, orders and other
communications to any Person relating to this Guaranty, or any security for all
or any part of the Secured Obligations; (v) to take or omit to take any other
action contemplated by or referred to in this Guaranty or any document covering
any security for all or any part of the Secured Obligations; and (vi) to take or
omit to take any action with respect to this Guaranty, any security for all or
any part of the Secured Obligations or any document covering any such security,
all as such officer may determine in his or her sole discretion. The
undersigned hereby certifies that he/she has all necessary authority to grant
and execute this Guaranty on behalf of the Guarantor.
15. GOVERNING LAW. THIS GUARANTY HAS BEEN EXECUTED AND DELIVERED BY
THE PARTIES HERETO IN CHICAGO, ILLINOIS. THIS GUARANTY SHALL BE GOVERNED BY AND
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
ILLINOIS. WITHOUT LIMITING THE FOREGOING, ANY DISPUTE BETWEEN THE AGENT AND THE
GUARANTOR ARISING OUT OF OR RELATED TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM
IN CONNECTION WITH THIS GUARANTY, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY,
OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF ILLINOIS.
16. CONSENT TO JURISDICTION; COUNTERCLAIMS; FORUM NON CONVENIENS.
(a) EXCLUSIVE JURISDICTION. Except as provided in SUBSECTION (b) of this
SECTION 16, the Agent, on behalf of itself and the Holders of Secured
Obligations, and the Guarantor agree that all disputes between them arising out
of or related to the relationship established between them in connection with
this Guaranty, whether arising in contract, tort, equity, or otherwise, shall be
resolved only by state or federal courts located in Chicago, Illinois, but the
parties acknowledge that any appeals from those courts may have to be heard by a
court located outside of Chicago, Illinois.
(b) OTHER JURISDICTIONS. The Agent shall have the right to proceed
against the Guarantor or its real or personal property in a court in any
location to enable the Agent to obtain personal jurisdiction over the Guarantor
or to enforce a judgment or other court order entered in favor of the Agent.
The Guarantor shall not assert any permissive counterclaims in any proceeding
brought by the Agent under this CLAUSE (b) arising out of or relating to this
Guaranty.
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(c) VENUE; FORUM NON CONVENIENS. Each of the Guarantor and the Agent
waives any objection that it may now or hereafter have (including, without
limitation, any objection to the laying of venue or based on FORUM NON
CONVENIENS) to the location of the court in which any proceeding with respect to
this Guaranty or any other document executed or delivered in connection herewith
is commenced in accordance with this SECTION 16.
17. WAIVER OF JURY TRIAL. EACH OF THE GUARANTOR AND THE AGENT WAIVES
ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT,
OR OTHERWISE, BETWEEN THE AGENT AND THE GUARANTOR ARISING OUT OF OR RELATED TO
THE TRANSACTIONS CONTEMPLATED BY THIS GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT
OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EITHER THE GUARANTOR
OR THE AGENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS GUARANTY WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
18. WAIVER OF BOND. The Guarantor waives the posting of any bond
otherwise required of the Agent in connection with any judicial process or
proceeding to realize on the Collateral (including, without limitation, the real
property Collateral) or any other security for the Obligations or to enforce any
judgment or other court order entered in favor of the Agent, or to enforce by
specific performance, temporary restraining order, or preliminary or permanent
injunction, this Guaranty or any other agreement or document between the Agent
and the Guarantor.
19. ADVICE OF COUNSEL. The Guarantor represents and warrants that it
has consulted with its legal counsel regarding all waivers under this Guaranty,
including without limitation those under SECTION 5 and SECTIONS 15 through 18
hereof, that it believes that it fully understands all rights that it is waiving
and the effect of such waivers, that it assumes the risk of any misunderstanding
that it may have regarding any of the foregoing, and that it intends that such
waivers shall be a material inducement to the Agent and the Holders of Secured
Obligations to extend the indebtedness guaranteed hereby.
20. NOTICES. All notices and other communications required or
desired to be served, given or delivered hereunder shall be in writing or by a
telecommunications device capable of creating a printed record and shall be
addressed to the party to be notified as follows:
if to the Guarantor, at:
[____________________]
10200 West York Street
Wichita, KS 67215
Attention: Chief Financial Officer
Telecopy: (316) 522-3022
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if to the Agent, at
The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670-0323
Attention: Donna Rae Green
Telecopy: 312/732-7655
or, as to each party, at such other address as designated by such party in a
written notice to the other party. All such notices and communications shall be
deemed to be validly served, given or delivered (i) three (3) days following
deposit in the United States mails, with proper postage prepaid; (ii) upon
delivery thereof if delivered by hand to the party to be notified; (iii) upon
delivery thereof to a reputable overnight courier service, with delivery charges
prepaid; or (iv) upon confirmation of receipt thereof if transmitted by a
telecommunications device.
21. SEVERABILITY. Wherever possible, each provision of this Guaranty
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
22. MERGER. This Guaranty represents the final agreement of the
Guarantor with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or subsequent
oral agreements, between the Guarantor and the Agent or any Holder of Secured
Obligations.
23. EXECUTION IN COUNTERPARTS. This Guaranty may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
24. NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
-11-
IN WITNESS WHEREOF, this Guaranty has been duly executed by the
Guarantor as of the day and year first set forth above.
[ ]
----------------------------------
By:
--------------------------------
Name:
Title:
Acknowledged and agreed to
as of the ___ day of February, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
By:
Name:
Title:
Signature Page to [______________] Guaranty