GUARANTY
AGREEMENT, dated as of May 25, 2007 (as amended, modified or
supplemented from time to time, this “ Guaranty
”), made by and among the undersigned guarantor,
INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation
(the “ Guarantor ”), for the benefit of the
Lenders (as defined below) and in favor of MORGAN STANLEY SENIOR
FUNDING, INC., as administrative agent for the Lenders (in such
capacity, the “ Administrative Agent
”).
W I T N
E S S E T H :
WHEREAS, IBM
INTERNATIONAL GROUP B.V., a private company with limited liability
(besloten vennootschap met beperkte aansprakelijkheid) organized
under the laws of The Netherlands (the “ Borrower
”), the lenders from time to time party thereto (the “
Lenders ”), MORGAN STANLEY SENIOR FUNDING, INC., as
Administrative Agent, DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH, as
Documentation Agent and LEHMAN COMMERCIAL PAPER, INC., as
Syndication Agent, have entered into a Term Loan Agreement, dated
as of May 25, 2007 (as amended, modified or supplemented from time
to time, the “ Credit Agreement ”), providing
for the making of Loans to the Borrower;
WHEREAS, Guarantor
is the indirect parent of the Borrower;
WHEREAS, it is a
condition precedent to the making of Loans to the Borrower under
the Credit Agreement that Guarantor shall have executed and
delivered to the Administrative Agent this Guaranty; and
WHEREAS, Guarantor
desires to execute this Guaranty to satisfy the condition described
in the preceding paragraph and to induce the Lenders to make Loans
to the Borrower;
NOW, THEREFORE, in
consideration of the foregoing and other benefits accruing to
Guarantor, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby makes the following representations
and warranties to the Administrative Agent for the benefit of the
Lenders and hereby covenants and agrees with the Administrative
Agent for the benefit of the Lenders as follows:
SECTION 1. DEFINITIONS
1.1.
Defined Terms . As used in this Guaranty, the
following terms shall have the following meanings:
“ Act
”: as defined in Section 7.15.
“
Administrative Agent ”: as defined in the first
paragraph of this Guaranty.
“
Attributable Debt ”: as of any date of
determination, the present value (discounted semiannually at the
Attributable Interest Rate) of the obligation of a lessee for
rental payments pursuant to any Sale and Leaseback Transaction
(reduced by the amount of the rental obligations of any sublessee
of all or part of the same property) during the remaining term of
such Sale and Leaseback Transaction (including any period for which
the lease relating thereto has been extended), such rental payments
not to include amounts payable by the lessee for maintenance and
repairs, insurance, taxes, assessments and similar charges and for
contingent rents (such as those based on sales). In the case
of any Sale and
1
Leaseback Transaction
in which the lease is terminable by the lessee upon the payment of
a penalty, such rental payments shall be considered for purposes of
this definition to be the lesser of (a) the rental payments to be
paid under such Sale and Leaseback Transaction until the first date
(after the date of such determination) upon which it may be so
terminated plus the then applicable penalty upon such termination
and (b) the rental payments required to be paid during the
remaining term of such Sale and Leaseback Transaction (assuming
such termination provision is not exercised).
“
Attributable Interest Rate ”: as of the date of
its determination, the weighted average of the interest rates (or
the effective rate in the case of original issue discount
securities or discount securities) of (a) all Outstanding
Securities (as such term is defined in the 1990 Indenture) of
Guarantor under the 1990 Indenture and all securities of Guarantor
issued and outstanding (as defined in the 1985 Indenture) under the
1985 Indenture to which Sections 6.05 and 6.06 of the 1985
Indenture apply (and whose application has not been waived), or (b)
at any time when no securities of Guarantor referred to in clause
(a) of this sentence are outstanding, all outstanding Loans and all
other outstanding Funded Debt of Guarantor.
“ Banking
Day ”: in respect of any city, any day on which
commercial banks are open for business (including dealings in
foreign exchange and foreign currency deposits) in that
city.
“
Board ”: the Board of Governors of the Federal
Reserve System of the United States (or any successor).
“
Borrower ”: as defined in the Recitals to this
Guaranty.
“
Borrower Obligations ”: any and all obligations
of the Borrower for the payment of money under the Credit Agreement
or in respect thereof, whether absolute or contingent.
“Closing
Date” : as defined in the Credit
Agreement.
“ Credit
Agreement ”: as defined in the Recitals to this
Guaranty.
“ Capital
Lease ”: with respect to any Person, any obligation
of such Person to pay rent or other amounts under a lease with
respect to any property (whether real, personal or mixed) acquired
or leased by such Person that is required to be accounted for as a
liability on a balance sheet of such Person in accordance with
GAAP.
“
Code ”: the Internal Revenue Code of 1986, as
amended from time to time.
“
Consolidated Adjusted Cash Flow ”: for any
period, earnings before income taxes of Guarantor and its
consolidated Subsidiaries for such period, excluding gains or
losses from the divestiture or sale of a business, plus, to the
extent deducted in arriving at earnings before income taxes of
Guarantor and its consolidated Subsidiaries for such period, the
sum of (i) Consolidated Net Interest Expense, (ii) depreciation
expense, (iii) amortization expense and (iv) restructuring charges
minus the sum of (a) cash payments made during such period in
respect of restructuring charges, (b) payments made during such
period for plant, rental machines and other property excluding
acquisitions of businesses (net of proceeds received during such
period from dispositions of plant, rental machines and other
property excluding divestitures or sales of businesses) and (c)
investment in software for such period, all as determined on a
consolidated basis in accordance with GAAP and, where applicable,
determined by reference to the consolidated statement of earnings
or (including in the case of clauses (b) and (c) above) statement
of cash flows of Guarantor and its consolidated
Subsidiaries.
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“
Consolidated Net Interest Expense ”: for any
period, (a) total interest cost of Guarantor and the Subsidiaries
for such period minus (b) interest income of Guarantor and
the Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP.
“
Consolidated Net Interest Expense Ratio ”: for
any period, the ratio of Consolidated Adjusted Cash Flow for such
period to Consolidated Net Interest Expense for such
period.
“
Consolidated Net Tangible Assets ”: at any date,
the total assets appearing on the consolidated statement of
financial position of Guarantor and the Subsidiaries most recently
delivered to the Administrative Agent pursuant to Section 3.5,
4.2(a) or 4.2(b), as the case may be, less (a) all current
liabilities as shown on such statement and (b) intangible
assets. As used herein, “ intangible assets
” means the value (net of any applicable reserves) as shown
on or reflected in such statement, of: (i) all trade names,
trademarks, licenses, patents, copyrights and goodwill; (ii)
organizational and development costs; (iii) deferred charges (other
than prepaid items such as insurance, taxes, interest, commissions,
rents and similar items and tangible assets being amortized); and
(iv) unamortized debt discount and expense, less unamortized
premium; but in no event shall the term “intangible
assets” include program products.
“
Debt ”: with respect to any Person, without
duplication, all indebtedness representing money borrowed which is
created, assumed, incurred or guaranteed in any manner by such
Person or for which such Person is otherwise responsible or liable
(whether by agreement to purchase indebtedness of, or to supply
funds to or invest in, others).
“
Default ”: any of the events specified in
Section 6, whether or not any requirement for the giving of notice,
the lapse of time, or both, has been satisfied.
“
Dollars ” and “ $ ”: dollars
in lawful currency of the United States of America.
“
ERISA ”: the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the rules and
regulations promulgated thereunder, as from time to time in
effect.
“ Event
of Default ”: any of the events specified in
Section 6, provided that all requirements for the giving of notice
and/or the lapse of time have been satisfied.
“ Funded
Debt ”: any Debt maturing by its terms more than
one year from the date of the issuance thereof, including any Debt
renewable or extendible at the option of the obligor to a date
later than one year from the date of the original issuance
thereof.
“
GAAP ”: generally accepted accounting principles
in the United States of America in effect from time to
time.
“
Guarantor ”: as defined in the first paragraph
of this Guaranty.
“
Governmental Authority ”: any nation or
government, any state or other political subdivision thereof and
any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to
government.
“
Indebtedness ”: with respect to any Person,
without duplication, (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property or
services other than indebtedness to trade creditors and service
providers incurred in the ordinary course of business, (b)
obligations, contingent or otherwise, of such Person in connection
with (i) letter of credit facilities or
3
bankers’
acceptance facilities and (ii) interest rate swap agreements,
interest rate cap agreements or similar arrangements used by a
Person to fix or cap a floating rate of interest to a negotiated
maximum rate or amount, or other similar facilities including
currency swaps, (c) all obligations of such Person evidenced by
bonds, notes, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to
repossession or sale of such property), (e) all obligations of such
Person to pay rent or other amounts under a Capital Lease, (f) all
indebtedness referred to in clause (a), (b), (c), (d) or (e) above
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien
upon or in property owned by such Person, even though such Person
has not assumed or become liable for the payment of such
indebtedness, and (g) all Indebtedness of others guaranteed by such
Person. For purposes of this Guaranty, the amount of any
Indebtedness referred to in clause (b)(ii) of the preceding
sentence shall be the amounts, including any termination payments,
required to be paid to a counterparty rather than any notional
amount with regard to which payments may be calculated. For
purposes of this Guaranty, Indebtedness shall not include any
indebtedness or other obligations issued by any Person (or by a
trust or other entity established by such Person or any of its
affiliates) which are primarily serviced by the cash flows of a
discrete pool of receivables, leases or other financial assets
which have been sold or transferred by Guarantor or any Subsidiary
in securitization transactions which, in accordance with GAAP, are
accounted for as sales for financial reporting purposes. The
definitions of Debt and Indebtedness in this Section 1.1 shall be
independent in construction, interpretation and
application.
“
Lenders ”: as defined in the Recitals to this
Guaranty.
“
Lien ”: with respect to any asset, any mortgage,
pledge, security interest, lien, charge or other encumbrance
whatsoever.
“
Loan ”: “Loans” under, and as
defined in, the Credit Agreement.
“ Margin
Stock ”: as defined under Regulation U.
“
Material Adverse Effect ”: a material adverse
effect on (a) the financial condition of Guarantor and the
Subsidiaries taken as a whole or (b) the validity or enforceability
of this Guaranty or the rights or remedies of the Administrative
Agent and the Lenders under this Guaranty.
“ 1985
Indenture ”: the Indenture, dated as of July 15,
1985, between Guarantor and The Bank of New York (successor to
Morgan Guaranty Trust Company of New York), as Trustee.
“ 1990
Indenture ”: the Indenture, dated as of March 1,
1990, between Guarantor and The Bank of New York, as
Trustee.
“Non-Excluded
Taxes” : as defined in the Credit Agreement.
“
Permitted Liens ”: (a) pledges or deposits
made to secure obligations of Guarantor or a Restricted Subsidiary
under workmen’s compensation laws or similar legislation; (b)
Liens imposed by law, such as materialmen’s,
mechanics’, carriers’, workmen’s, vendors’,
repairmen’s or other like Liens incurred in the ordinary
course of business; (c) governmental (Federal, state or municipal)
Liens arising out of contracts for the purchase of products of
Guarantor or a Restricted Subsidiary, and deposits or pledges to
obtain the release of any of the foregoing Liens; (d) Liens created
by or resulting from any litigation or legal proceeding that is
currently being contested in good faith by appropriate proceedings;
(e) leases made or existing on Principal Property entered into in
the ordinary course of business by
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Guarantor or a
Restricted Subsidiary; (f) landlords’ Liens under leases of
Principal Property to which Guarantor or a Restricted Subsidiary is
a party; (g) zoning restrictions, easements, licenses or
restrictions on the use of Principal Property or minor
irregularities in the title thereto that in any such case do not
interfere materially with the use of such Principal Property by
Guarantor or any Restricted Subsidiary; (h) deposits in connection
with bids, tenders or contracts (other than for the payment of
money) to which Guarantor or any Restricted Subsidiary is a party;
(i) deposits to secure public or statutory obligations of Guarantor
or any Restricted Subsidiary; (j) deposits in connection with
obtaining or maintaining self insurance or to obtain the benefits
of any law, regulation or arrangement pertaining to unemployment
insurance, old age pensions, social security or similar matters;
(k) deposits of cash or obligations of the United States of America
to secure surety, appeal or customs bonds to which Guarantor or any
Restricted Subsidiary is a party; and (l) Liens for taxes or
assessments or governmental charges or levies not yet due or
delinquent, or which can thereafter be paid without penalty, or
which are being contested in good faith by appropriate
proceedings.
“
Person ”: an individual, partnership, limited
liability company, corporation, business trust, joint stock
company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever
nature.
“
Principal Property ”: any land, land
improvements, buildings and associated factory, laboratory and
office equipment (excluding all products marketed by Guarantor or
any Subsidiary) constituting a manufacturing facility, development
facility, warehouse facility, service facility or office facility
(including any portion thereof), which facility (a) is owned by or
leased to Guarantor or any Restricted Subsidiary, (b) is located
within the United States, and (c) has an acquisition cost plus
capitalized improvements in excess of 0.15% of Consolidated Net
Tangible Assets as of the date of such determination, other than
(i) any such facility, or portion thereof, which has been financed
by obligations issued by or on behalf of a state, a Territory or a
possession of the United States, or any political subdivision of
any of the foregoing, or the District of Columbia, the interest on
which is, or at the time of issuance of such obligations was
determined by counsel to be, excludable from the gross income of
the holders thereof (other than a “substantial user” of
such facility or a “related person” as those terms were
used in Section 147 of the Code) pursuant to the provisions of
Section 103 and related Sections of the Code (or any similar
provisions hereafter enacted) as in effect at the time of issuance
of such obligations, (ii) any such facility which the Board of
Directors of Guarantor, or a duly authorized committee thereof, may
by resolution declare is not of material importance to Guarantor
and the Restricted Subsidiaries, taken as a whole (provided that
Guarantor has delivered written notice of such declaration to the
Administrative Agent), and (iii) any such facility, or portion
thereof, owned or leased jointly or in common with one or more
Persons other than Guarantor and any Subsidiary and in which the
interest of Guarantor and all Subsidiaries does not exceed
50%.
“
Regulation T ”: Regulation T of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
“
Regulation U ”: Regulation U of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
“
Regulation X ”: Regulation X of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
“
Required Lenders ”: at any date, the holders of
more than 50% of the aggregate unpaid principal amount of the
Loans.
5
“
Requirement of Law ”: as to any Person, the
Certificate of Incorporation and By Laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or assets or to which such
Person or any of its property or assets is subject.
“
Responsible Officer ”: the Chief Executive
Officer, the Chief Financial Officer, the Vice President and
Treasurer, the Vice President and Controller, any Assistant
Controller and any Assistant Treasurer of Guarantor.
“
Restricted Securities ”: any capital stock or
Indebtedness of any Restricted Subsidiary.
“
Restricted Subsidiary ”: (a) any Subsidiary (i)
which has substantially all its property within the United States
of America, (ii) which owns or is a lessee of any property that
would be a Principal Property but for clause (a) of the definition
of such term contained in this Section 1.1, and (iii) in which the
investment of Guarantor and all other Subsidiaries exceeds 0.15% of
Consolidated Net Tangible Assets as of the date of such
determination; provided, however, that the term “Restricted
Subsidiary” shall not include (A) any Subsidiary (x)
primarily engaged in the business of purchasing, holding,
collecting, servicing or otherwise dealing in and with installment
sales contracts, leases, trust receipts, mortgages, commercial
paper or other financing instruments, and any collateral or
agreements relating thereto, including in the business,
individually or through partnerships, of financing (whether through
long or short term borrowings, pledges, discounts or
otherwise) the sales, leasing or other operations of Guarantor and
the Subsidiaries or any of them, or (y) engaged in the business of
financing the assets and operations of third parties, and (z) in
any case, not, except as incidental to such financing business,
engaged in owning, leasing or operating any property which but for
this proviso would qualify as Principal Property or (B) any
Subsidiary acquired or organized after July 15, 1985, for the
purpose of acquiring the stock or business or assets of any Person
other than Guarantor or any Restricted Subsidiary, whether by
merger, consolidation, acquisition of stock or assets or similar
transaction analogous in purpose or effect, so long as such
Subsidiary shall not have, since such date, and does not hereafter
acquire by merger, consolidation, acquisition of stock or assets or
similar transaction analogous in purpose or effect all or any
substantial part of the business or assets of Guarantor or any
Restricted Subsidiary; and (b) any other Subsidiary which is
hereafter designated by the Board of Directors of Guarantor, or a
duly authorized committee thereof, as a Restricted
Subsidiary.
“ Sale
and Leaseback Transaction ”: any arrangement with
any Person providing for the leasing by Guarantor or any Restricted
Subsidiary of any Principal Property (whether such Principal
Property is now owned or hereafter acquired) that has been or is to
be sold or transferred by Guarantor or such Restricted Subsidiary
to such Person, other than (a) temporary leases for a term,
including renewals at the option of the lessee, of not more than
three years; (b) leases between Guarantor and a Restricted
Subsidiary or between Restricted Subsidiaries; and (c) leases of
Principal Property executed by the time of, or within 180 days
after the latest of, the acquisition, the completion of
construction or improvement (including any improvements on property
which will result in such property becoming Principal Property), or
the commencement of commercial operation of such Principal
Property.
“ SEC
”: the Securities and Exchange Commission and any
successor agency.
“ Secured
Debt ”: (a) Debt of Guarantor or a Restricted
Subsidiary which is secured by any Lien (other than a Permitted
Lien) upon any Principal Property or Restricted Securities and (b)
Indebtedness of Guarantor or a Restricted Subsidiary in respect of
any conditional sale or other title retention agreement covering
Principal Property or Restricted Securities; but “Secured
Debt” shall not include any of the following:
6
(i)
Debt of Guarantor and the Restricted Subsidiaries outstanding on
July 15, 1985, secured by then existing Liens upon, or incurred in
connection with conditional sales agreements or other title
retention agreements with respect to, Principal Property or
Restricted Securities;
(ii)
Debt of Guarantor or a Restricted Subsidiary secured by (A)
purchase money Liens upon Principal Property or Restricted
Securities acquired after July 15, 1985, or (B) Liens placed on
Principal Property after July 15, 1985, during construction or
improvement thereof (including any improvements on property which
resulted or will result in such property becoming Principal
Property) or placed thereon within 180 days after the later of
acquisition, completion of construction or improvement or the
commencement of commercial operation of such Principal Property or
improvement, or placed on Restricted Securities acquired after July
15, 1985, or (C) conditional sale agreements or other title
retention agreements with respect to any Principal Property or
Restricted Securities acquired after July 15, 1985, if (in each
case referred to in this subparagraph (ii)) (x) such Lien or
agreement secures all or any part of the Debt incurred for the
purpose of financing all or any part of the purchase price or cost
of construction of such Principal Property or improvement or
Restricted Securities and (y) such Lien or agreement does not
extend to any Principal Property or Restricted Securities other
than the Principal Property or Restricted Securities so acquired or
the Principal Property, or portion thereof, on which the property
so constructed, or such improvement, is located; provided, however,
that the amount by which the aggregate principal amount of Debt
secured by any such Lien or agreement exceeds the cost to Guarantor
or such Restricted Subsidiary of the related acquisition,
construction or improvement shall be considered to be
“Secured Debt”;
(iii)
Debt of Guarantor or a Restricted Subsidiary secured by Liens on
Principal Property or Restricted Securities, which Liens exist at
the time of acquisition (by any manner whatsoever) of such
Principal Property or Restricted Securities by Guarantor or a
Restricted Subsidiary;
(iv)
Debt of Restricted Subsidiaries owing to Guarantor or any other
Restricted Subsidiary or Debt of Guarantor owing to any Restricted
Subsidiary;
(v)
in the case of any corporation which becomes (by any manner
whatsoever), as the case may be, a Restricted Subsidiary after the
Closing Date, Debt secured by Liens upon, or conditional sale
agreements or other title retention agreements with respect to, its
property which constitutes Principal Property or Restricted
Securities, which Liens shall have existed or exist, as the case
may be, at the time such corporation shall have become or becomes,
as the case may be, a Restricted Subsidiary;
(vi)
guarantees by Guarantor of Secured Debt and Attributable Debt of
any Restricted Subsidiaries and guarantees by a Restricted
Subsidiary of Secured Debt and Attributable Debt of Guarantor and
any other Restricted Subsidiaries;
(vii)
Debt arising from any Sale and Leaseback Transaction;
(viii)
Debt secured by Liens on property of Guarantor or a Restricted
Subsidiary in favor of the United States of America, any state,
Territory or possession thereof, or the District of Columbia, or
any department, agency or instrumentality or political subdivision
of the United States of America or any state, Territory or
possession thereof, or the District of Columbia, or in favor of any
other country or any political subdivision thereof, if such Debt
was incurred for the purpose of financing all or any part of the
purchase price or the cost of construction of the property subject
to such Liens; provided, however, that the amount by which the
aggregate
7
principal amount of Debt secured by any such
Lien exceeds the cost to Guarantor or such Restricted Subsidiary of
the related acquisition or construction shall be considered to be
“Secured Debt”; and
(ix)
the replacement, extension or renewal (or successive replacements,
extensions or renewals) of any Debt (in whole or in part) excluded
from the definition of “Secured Debt” by subparagraphs
(i) through (viii) above; provided, however, that no Lien securing,
or conditional sale or title retention agreement with respect to,
such Debt shall extend to or cover any Principal Property or any
Restricted Securities, other than such property which secured the
Debt so replaced, extended or renewed (plus improvements on or to
any such Principal Property); provided, further, however, that to
the extent that such replacement, extension or renewal increased or
increases the principal amount of Debt secured by such Lien or was
or is in a principal amount in excess of the principal amount of
Debt excluded from the definition of “Secured Debt” by
subparagraphs (i) through (viii) above, the amount of such increase
or excess shall be considered to be “Secured
Debt”.
In no event shall
the foregoing provisions be interpreted to mean or their operation
to cause the same Debt to be included more than once in the
calculation of “Secured Debt” as that term is used
herein.
“
Significant Subsidiary ”: any Subsidiary that would be
a “significant subsidiary” within the meaning of Rule
1-02 of the SEC’s Regulation S-X.
“ Subsidiary ”:
as to any Person, (a) any corporation more than 50% of whose stock
of any class or classes having by the terms thereof ordinary voting
power to elect a majority of the directors of such corporation
(other than any stock of any class or classes of such corporation
that shall have or might have such voting power only after the
occurrence of any contingency) is at the time owned by such Person
and/or one or more Subsidiaries of such Person or (b) any
partnership, limited liability company, association, joint venture
or other entity in which such Person and/or one or more
Subsidiaries of such Person has more than a 50% equity interest at
the time. Unless otherwise qualified, all references to a
“Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of the
Guarantor .
“
Transferee ”: as defined in the Credit
Agreement.
“ Voting
Stock ”: with respect to any Person, outstanding
capital stock of such Person ordinarily (and apart from rights
exercisable upon the occurrence of any contingency) having the
power to vote in the election of directors of such
Person.
1.2.
Other Definitional Provisions . (a) Unless
otherwise specified therein, all terms defined in this Guaranty
shall have the defined meanings provided herein when used in any
instrument, certificate or other document made or delivered
pursuant hereto.
(b)
As used herein and in any instrument, certificate or other document
made or delivered pursuant hereto, accounting terms relating to
Guarantor and the Subsidiaries not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not
defined, shall have the respective meanings given to them under
GAAP, provided that, if Guarantor notifies the Administrative Agent
that Guarantor requests an amendment of any provision hereof to
eliminate the effect of any change occurring after the date hereof
in GAAP or in the application thereof (or if the Administrative
Agent notifies Guarantor that the Required Lenders request an
amendment of any provision hereof for
8
such purpose), regardless of whether such
notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be applied on the
basis of GAAP as in effect and applied immediately before such
change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance
herewith.
(c)
The words “hereof”, “herein” and
“hereunder” and words of similar import when used in
this Guaranty shall refer to this Guaranty as a whole and not to
any particular provision of this Guaranty, and Section, Schedule
and Exhibit references are to this Guaranty unless otherwise
specified.
(d)
The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such
terms.
SECTION 2. GUARANTY
2.1.
Guaranty . In order to induce the Administrative Agent
and the Lenders to execute and deliver the Credit Agreement and to
make or maintain the Loans, and in consideration thereof, Guarantor
hereby unconditionally and irrevocably guarantees to the
Administrative Agent, for the ratable benefit of the Lenders, the
prompt and complete payment and performance by the Borrower when
due (whether at stated maturity, by acceleration or otherwise) of
the Borrower Obligations, and Guarantor further agrees to pay any
and all reasonable out-of-pocket expenses (including, without
limitation, all reasonable fees, charges and disbursements of
counsel) which may be paid or incurred by the Administrative Agent
or by the Lenders in enforcing, or obtaining advice of counsel in
respect of, any of their rights under this Guaranty. This
Guaranty, subject to Section 2.5, shall remain in full force and
effect until the Borrower Obligations and all other obligations of
Guarantor set forth herein are paid in full.
Guarantor agrees
that whenever, at any time, or from time to time, it shall make any
payment to the Administrative Agent or any Lender on account of its
liability under this Guaranty, it will notify the Administrative
Agent and such Lender in writing that such payment is made under
this Guaranty for such purpose. No payment or payments made
by the Borrower or any other Person or received or collected by the
Administrative Agent or any Lender from the Borrower or any other
Person by virtue of any action or proceeding or any setoff or
appropriation or application, at any time or from time to time, in
reduction of or in payment of the Borrower Obligations shall be
deemed to
