Exhibit 10.4
GUARANTEE AGREEMENT
Guarantee Agreement, dated as of August 25, 2003, among Monitronics
International, Inc., a Texas corporation (the "Borrower"), each of the
subsidiaries of the Borrower listed on Schedule I hereto (each such subsidiary,
individually, a "Guarantor" and, collectively, the "Guarantors") and Fleet
National Bank, as administrative agent under the Credit Agreement referred to in
the next paragraph.
Reference is made to the Credit Agreement, dated August 25, 2003, among the
Borrower, the Lenders from time to time party thereto, Bank of America, N.A., as
syndication agent, and Fleet National Bank, as Administrative Agent (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"). Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower pursuant to, and upon
the terms and subject to the conditions specified in, the Credit Agreement. The
making of the Loans will be beneficial to the Guarantors because the Guarantors
are Wholly Owned Subsidiaries of the Borrower. The obligation of the Lenders to
make the Loans is subject to the condition, among others, that the Guarantors
execute and deliver this Guarantee Agreement.
Accordingly, the parties hereto agree as follows:
Section 1. Guarantee; Fraudulent Transfer, etc.; Contribution.
(a) Each Guarantor unconditionally guarantees, jointly with the other
Guarantors and severally, as a primary obligor and not merely as a surety, the
Obligations. Each Guarantor further agrees that the Obligations may be extended
refinanced or renewed, in whole or in part, without notice to or further assent
from it and that it will remain bound upon its guarantee notwithstanding any
extension, refinancing or renewal of any Obligation.
(b) Anything in this Guarantee Agreement to the contrary
notwithstanding, (i) the obligations of each Guarantor hereunder shall be
limited to a maximum aggregate amount equal to the greatest amount that would
not render such Guarantor's obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title 11 of the United
States Code or any provisions of applicable state law (collectively, the
"fraudulent transfer laws") and (ii) until all the Obligations have been paid in
full in cash and all commitments to lend in respect of the Obligations have
terminated, each of the Guarantors expressly waives any and all rights of
subrogation, reimbursement, indemnity, exoneration, contribution or any other
claim that it may now or hereafter have against the Borrower, any other Loan
Party, any other guarantor or any other Person directly or contingently liable
for the Obligations, or against or with respect to the property of the Borrower,
such other Loan Party, such other guarantor or such other Person, arising from
the existence or performance hereof.
(c) In addition to all rights of indemnity and subrogation the
Guarantors may have under applicable law (but subject to this paragraph), the
Borrower agrees that (i) in the event a payment shall be made by any Guarantor
hereunder, the Borrower shall indemnify such Guarantor for the full amount of
such payment, and such Guarantor shall, subject to the provisions of Section
1(b)(ii) hereof, be subrogated to the rights of the person to whom such payments
shall have been made to the extent of such payment, and (ii) in the event that
any assets of any Guarantor shall be sold pursuant to any Loan Document to
satisfy any claim of any Credit Party, the Borrower shall indemnify such
Guarantor in an amount equal to the greater of the book value or the fair market
value of the assets so sold. Each Guarantor that is a Subsidiary (a
"contributing subsidiary guarantor") agrees (subject to this paragraph) that, in
the event a payment shall be made by any other Guarantor hereunder that is a
Subsidiary or assets of any other such Guarantor shall be sold pursuant to any
Loan Document to satisfy a claim of any Credit Party and such other Guarantor
(the "claiming subsidiary guarantor") shall not have been fully indemnified by
the Borrower as provided in this paragraph, the contributing subsidiary
guarantor shall indemnify the claiming subsidiary guarantor in an amount equal
to the amount of such payment or the greater of the book value or the fair
market value of such assets, as applicable, in each case multiplied by a
fraction of which the numerator shall be the net worth of the contributing
subsidiary guarantor on the date hereof and the denominator shall be the
aggregate net worth of all the Guarantors that are Subsidiaries on the date
hereof (or, in the case of any Guarantor that is a Subsidiary becoming a party
hereto pursuant to Section 20, the date of the Supplement hereto executed and
delivered by such Guarantor). Any contributing subsidiary guarantor making any
payment to a claiming subsidiary guarantor pursuant to this paragraph shall,
subject to the provisions of Section 1(b)(ii) hereof, be subrogated to the
rights of such claiming subsidiary guarantor under this paragraph to the extent
of such payment. Notwithstanding any provision of this paragraph to the
contrary, all rights of the Guarantors under this paragraph and all other rights
of indemnity, contribution or subrogation under applicable law or otherwise
shall be fully subordinated to the indefeasible payment in full in cash of the
Obligations and termination of all commitments to lend in respect of the
Obligations. No failure on the part of the Borrower or any Guarantor to make the
payments required by this paragraph (or any other payments required under
applicable law or otherwise) shall in any respect limit the obligations and
liabilities of any Guarantor with respect to its obligations under this
paragraph or this Guarantee Agreement, and each Guarantor shall remain liable
for the full amount of the obligations of such Guarantor under this paragraph or
this Guarantee Agreement.
Section 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Guarantor waives presentment to, demand of payment from,
and protest to the Borrower of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment. To the fullest
extent permitted by applicable law, the obligations of each Guarantor hereunder
shall not be affected by (a) the failure of the Administrative Agent or any
other Credit Party to assert any claim or demand or to enforce or exercise any
right or remedy against the Borrower or any other Guarantor or any other Loan
Party under the provisions of the Credit Agreement or any other Loan Document,
or otherwise, (b) any rescission, waiver, amendment or modification of, or any
release from, any of the terms or provisions of this Guarantee Agreement, any
other Loan Document, any Guarantee or any other agreement, including with
respect to any other Guarantor under this Guarantee Agreement or (c) the failure
to perfect any security interest in, or the release or subordination of the lien
of, any of the security held by or on behalf of the Administrative Agent or any
other Credit Party.
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Section 3. Security. Each Guarantor authorizes the Administrative Agent and
each other Credit Party to (a) take and hold security for the payment of the
obligations under this Guarantee Agreement and the Obligations and exchange,
enforce, waive and release or subordinate the lien of any such security, (b)
apply such security and direct the order or manner of sale thereof as they in
their sole discretion may determine and (c) release, subordinate the obligations
of, or substitute any one or more endorsees, other Guarantors or other obligors.
Section 4. Guarantee of Payment. Each Guarantor further agrees that its
guarantee hereunder constitutes a guarantee of payment when due and not of
collection, and waives any right to require that any resort be had by the
Administrative Agent or any other Credit 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 Administrative Agent or any other Credit Party in favor of the
Borrower or any other person.
Section 5. No Discharge or Diminishment of Guarantee. The obligations of
each 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 and termination of all commitments to lend in
respect 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 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 Guarantor hereunder shall not be discharged or impaired or otherwise
affected by the failure of the Administrative Agent or any other Credit Party to
assert any claim or demand or to enforce any remedy under the Credit Agreement,
any other Loan Document or any other agreement, by any waiver or modification of
any provision of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Obligations, or by any other act or
omission that may or might in any manner or to any extent vary the risk of any
Guarantor or that would otherwise operate as a discharge of any Guarantor as a
matter of law or equity (other than the indefeasible payment in full in cash of
all the Obligations and termination of all commitments to lend in respect of the
Obligations).
Section 6. Defenses of Borrower Waived. To the fullest extent permitted by
applicable law, each of the Guarantors waives any defense based on or arising
out of any defense of the Borrower or any other Loan Party or the
unenforceability of the Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Borrower or any other Loan
Party, other than the final and indefeasible payment in full in cash of the
Obligations and termination of all commitments to lend in respect of the
Obligations. The Administrative Agent and the other Credit 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 Guarantor or exercise any other right or
remedy available to them against the Borrower or any Guarantor, without
affecting or impairing in any way the liability of any Guarantor hereunder
except to the extent the Obligations have been fully, finally and paid in cash
and all commitments to lend in respect of the Obligations have been terminated.
Pursuant to applicable law, each Guarantor 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 Guarantor
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against the Borrower, any other Guarantor or any other Loan Party, as
applicable, or any security.
Section 7. Agreement to Pay; Subordination. In furtherance of the foregoing
and not in limitation of any other right that the Administrative Agent or any
other Credit Party has at law or in equity against any 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 Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Administrative
Agent or such other Credit Party as designated thereby in cash the amount of
such unpaid Obligations. Upon payment by any Guarantor of any sums to the
Administrative Agent or any Credit Party as provided above, all rights of such
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 and termination of all
commitments to lend in respect of the Obligations. In addition, any debt of the
Borrower or any other Loan Party now or hereafter held by any Guarantor is
hereby subordinated in right of payment to the prior indefeasible payment in
full in cash of all of the Obligations and termination of all commitments to
lend in respect of the Obligations. If any amount shall erroneously be paid to
any Guarantor on account of (a) such subrogation, contribution, reimbursement,
indemnity or similar right or (b) any such debt of the Borrower or such other
Loan Party, such amount shall be held in trust for the benefit of the Credit
Parties and shall forthwith be paid to the Administrative 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 Guarantor assumes all responsibility for being
and keeping itself informed of each Loan Party's financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks that such Guarantor
assumes and incurs hereunder, and agrees that none of the Administrative Agent
or the other Credit Parties will have any duty to advise any of the Guarantors
of information known to it or any of them regarding such circumstances or risks.
Section 9. Representations and Warranties. Each of the Guarantors
represents and warrants as to itself that all representations and warranties
relating to it contained in the Credit Agreement are true and correct as of the
date hereof, except to the extent that such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties shall be true as of such earlier date.
Section 10. Termination. The guarantees made hereunder (a) shall terminate
when all the Obligations have been paid in full in cash and all commitments to
lend in respect of the Obligations have been terminated and (b) shall continue
to be effective or be reinstated, as applicable, if at any time payment, or any
part thereof, of any Obligation is rescinded or must otherwise be restored by
any Credit Party or any Guarantor upon the bankruptcy or reorganization of any
Loan Party or otherwise (and whether as a result of demand, settlement,
litigation or otherwise).
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Section 11. Binding Effect; Several Agreement; Assignments. Whenever in
this Guarantee 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 any Guarantor that
are contained in this Guarantee Agreement shall bind and inure to the benefit of
each party hereto and its successors and assigns. This Guarantee Agreement shall
become effective as to any Guarantor when a counterpart hereof executed on
behalf of such Guarantor shall have been delivered to the Administrative Agent
and a counterpart hereof shall have been executed on behalf of the
Administrative Agent, and thereafter shall be binding upon such Guarantor and
the Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of such Guarantor, the Administrative Agent and the other
Credit Parties, and their respective successors and assigns, except that no
Guarantor shall have the right to assign its rights or obligations hereunder or
any interest herein (and any such attempted assignment shall be void), except as
expressly contemplated by this Guarantee Agreement and except with the prior
written consent of all the Credit Parties. If any of the equity interests in any
Guarantor that is a Subsidiary of the Borrower is sold, transferred or otherwise
disposed of pursuant to a transaction permitted by the Loan Documents and,
immediately after giving effect thereto, such Guarantor shall no longer be a
Subsidiary of the Borrower, then the obligations of such Guarantor under this
Guarantee Agreement shall be automatically released. This Guarantee Agreement
shall be construed as a separate agreement with respect to each Guarantor and
may be amended, modified, supplemented, waived or released with respect to any
Guarantor without the approval of any other Guarantor and without affecting the
obligations of any other Guarantor hereunder.
Section 12. Waivers; Amendment.
(a) No failure or delay of the Administrative 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 Administrative Agent hereunder and of the other Credit
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 Guarantee Agreement or any other Loan Document or consent to
any departure by any Guarantor therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, 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 Guarantor in any case shall
entitle such Guarantor to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Guarantee Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
by, between or among the Administrative Agent and the Guarantor or Guarantors
with respect to which such waiver, amendment or modification is to apply,
subject to any consent required in accordance with Section 11.1 of the Credit
Agreement.
Section 13. GOVERNING LAW. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS
OF LAW PROVISIONS, BUT INCLUDING
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SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK) AND DECISIONS OF THE STATE OF NEW YORK.
Section 14. Notices. All communications and notices hereunder shall be in
writing and given as provided in Section 11.2 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
its address set forth in the Schedule hereto.
Section 15. Survival of Agreement; Severability.
(a) All covenants, agreements, representations and warranties made by
the Guarantors herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Guarantee Agreement or any
other Loan Document shall be considered to have been relied upon by the
Administrative Agent and the other Credit Parties and shall survive the
execution and delivery of any Loan Document and the making of any Loan,
regardless of any investigation made by the Credit Parties or on their behalf,
and shall continue in full force and effect until this Guarantee Agreement shall
terminate in accordance with its terms.
(b) In the event any one or more of the provisions contained in this
Guarantee 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 Guarantee Agreement may be executed in two
or more counterparts, each of which shall constitute an original, but all of
which, when taken together, shall constitute but one contract (subject to
Section 11 hereof), and shall become effective as provided in Section 11 hereof.
Delivery of an executed counterpart of this Guarantee Agreement by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart of this Guarantee Agreement.
Section 17. Rules of Interpretation. The rules of interpretation specified
in Section 1.3 of the Credit Agreement shall be applicable to this Guarantee
Agreement.
Section 18. Jurisdiction.
(a) Each party hereto 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 Guarantee 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, to the extent
permitted by applicable law, all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by applicable law, in such Federal
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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 Guarantee Agreement shall affect any right that any party hereto
may otherwise have to bring any action or proceeding relating to this Guarantee
Agreement or the other Loan Documents in the courts of any jurisdiction.
(b) Each party hereto 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 Guarantee Agreement or the other
Loan Documents in any court referred to in paragraph (a) of this Section. 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.
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 GUARANTEE AGREEMENT. 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 GUARANTEE
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section 20. Additional Guarantors. Upon execution and delivery after the
date hereof by the Administrative Agent and a Subsidiary of the Borrower of an
instrument in the form of Annex 1, such Subsidiary shall become a Guarantor
hereunder with the same force and effect as if originally named as a Guarantor
herein. The execution and delivery of any such instrument shall not require the
consent of any other Guarantor hereunder. The rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Guarantor as a party to this Guarantee Agreement.
Section 21. Right of Setoff. If an Event of Default shall have occurred and
be continuing, each Credit Party is hereby authorized at any time and from time
to time, to the fullest extent permitted by applicable law, to setoff 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 Credit Party
to or for the credit or the account of any Guarantor against any or all the
obligations of such Guarantor now or hereafter existing under this Guarantee
Agreement and the other Loan Documents held by such Credit Party, irrespective
of whether or not such Credit Party shall have made demand under this Guarantee
Agreement or any other Loan Document and although such obligations may be
unmatured. The rights of each Credit Party under this Section are in addition to
other rights and remedies (including other rights of setoff) which such Credit
Party may have.
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Section 22. Headings. Section headings used herein are for convenience of
reference only, are not part of this Guarantee Agreement and are not to affect
the construction of, or be taken into consideration in interpreting, this
Guarantee Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
MONITRONICS INTERNATIONAL, INC.
By: /s/ Michael Meyers
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Name: Michael Meyers
Title: Vice President & CFO
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By:
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Name:
Title:
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By:
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Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent
By:
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Name:
Title:
[Signature Page to Guarantee Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
MONITRONICS INTERNATIONAL, INC.
By:
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Name:
Title:
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By:
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Name:
Title:
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By:
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Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent
By: /s/ John F. Lynch
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Name: John F. Lynch
Title: Senior Vice President
[Signature Page to Guarantee Agreement]
SCHEDULE I
TO GUARANTEE AGREEMENT
GUARANTORS
Grantor Address for Notices
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With a copy to:
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With a copy to:
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ANNEX 1
TO GUARANTEE AGREEMENT
FORM OF SUPPLEMENT
Supplement No. , dated as of , 200 , to the Guarantee
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Agreement, dated as of August , 2003, among Monitronics International, Inc., a
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Texas corporation (the "Borrower"), each of the subsidiaries of the Borrower
listed on Schedule I thereto and Fleet National Bank, as administrative agent
under the Credit Agreement referred to in the next paragraph (as amended,
restated, supplemented or otherwise modified from time to time, the "Guarantee
Agreement").
A. Reference is made to the Credit Agreement, dated as of August , 2003,
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among the Borrower, the Lenders from time to time party thereto, Bank of
America, N.A., as Syndication Agent, and Fleet National Bank, as Administrative
Agent (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"). Capitalized terms used herein and not defined
herein shall have the meanings assigned to such terms in the Credit Agreement
and the Guarantee Agreement.
B. The Guarantors have entered into the Guarantee Agreement in order to
induce the Lenders to make Loans. Section 20 of the Guarantee Agreement provides
that additional Subsidiaries of the Borrower may become Guarantors under the
Guarantee Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned Subsidiary (the "New Guarantor") is executing
this Supplement in accordance with the requirements of the Credit Agreement to
become a Guarantor under the Guarantee Agreement in order to induce the Lenders
to make additional Loans and as consideration for Loans previously made.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
Section 1. In accordance with Section 20 of the Guarantee Agreement, the
New Guarantor by its signature below becomes a Guarantor under the Guarantee
Agreement with the same force and effect as if originally named therein as a
Guarantor, and the New Guarantor hereby (a) agrees to all the terms and
provisions of the Guarantee Agreement applicable to it as a Guarantor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof,
including, without limitation, with respect to itself, its operations and its
assets and properties. Each reference to a "Guarantor" in the Guarantee
Agreement shall be deemed to include the New Guarantor. The Guarantee Agreement
is hereby incorporated herein by reference.
Section 2. The New Guarantor represents and warrants to the Administrative
Agent and the other Credit Parties that it has all requisite organizational and
other powers and authority to execute, deliver and perform its obligations under
this Supplement and 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 but one contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Guarantor and the
Administrative Agent. Delivery of an executed counterpart of 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 Guarantee Agreement
shall remain unchanged in full force and effect.
Section 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAW
PROVISIONS, BUT INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK) AND DECISIONS 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 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.
Section 7. All communications and notices hereunder shall be in writing and
given as provided in Section 14 of the Guarantee Agreement. All communications
and notices hereunder to the New Guarantor shall be given to it at the address
set forth under its signature below.
Section 8. The New Guarantor agrees to reimburse the Administrative Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, disbursements and other charges of counsel for
the Administrative Agent.
[Signature page follows]
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Guarantee Agreement as of the day and year
first above written.
[NAME OF GUARANTOR]
By:
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Name:
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Title:
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Address:
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Attention:
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Telephone No.:
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Facsimile No.:
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FLEET NATIONAL BANK,
as Administrative Agent
By:
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Name:
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Title:
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