Exhibit 4.7
FORM OF GUARANTY (U.S. SUBSIDIARIES)
This Guaranty is entered into as of __________, 2001, by
__________________, a __________ corporation (the "Guarantor"), in favor of Bank
of America, N.A. as administrative agent (in such capacity, the "Agent") for the
financial institutions (the "Banks") from time to time party to that certain
Multicurrency Credit Agreement (as amended, restated, modified or refinanced
from time to time, the "Credit Agreement") among APW, Ltd. (the "Parent"), APW
Holdings Denmark APS ("APW-Denmark"), APW North America, Inc. ("APW-NA";
together with the Parent and APW-Denmark, the "Borrowers"), Bank One, N.A. as
syndication agent, The Chase Manhattan Bank, as documentation agent, the Banks
and the Agent.
Recitals
A. The Banks are willing to make certain Loans to the Borrowers and
issue certain letters of credit on the application of the Parent, as provided in
the Credit Agreement on the condition (among others) that the Guarantor enter
into this Guaranty.
B. The Guarantor will derive substantial and direct benefits (which
benefits are hereby acknowledged by the Guarantor) from the Loans and the
Letters of Credit and other benefits to be provided to the Parent, APW-NA and
APW-Denmark under the Credit Agreement;
C. In order to induce the Banks to make such Loans available to the
Borrowers as provided in the Credit Agreement, and for other valuable
consideration, the Guarantor has agreed to issue this Guaranty.
NOW, THEREFORE, for good and valuable consideration, the Guarantor agrees
as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms used
in this Guaranty have the meanings given to them from time to time in the Credit
Agreement. The Parent, APW-NA and APW-Denmark are collectively called the
"Guaranteed Borrower."
2. Guaranty.
2.1 Guaranty. The Guarantor hereby irrevocably, absolutely and
unconditionally guarantees the full and punctual payment or performance when
due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all of the Obligations of the Guaranteed
Borrower (the "Guaranteed Obligations"), including Obligations in respect of
amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the U.S. Bankruptcy Code, the operation of Sections 502(b) and
506(b) of the U.S. Bankruptcy Code or the operation of any comparable provisions
of laws of countries other than the United States; provided, however, that the
Guarantor shall be liable under this Guaranty for the maximum amount of such
liability that can be hereby incurred without rendering this Guaranty, as it
relates to the Guarantor, voidable under applicable law relating to fraudulent
conveyance, fraudulent transfer or other applicable law, and not for any greater
amount. This Guaranty constitutes a guaranty of payment and performance when
due and not of collection, and the Guarantor specifically agrees that it shall
not be necessary or required that the Agent or any Bank exercise any right,
assert any claim or demand or enforce any remedy whatsoever against the
Guaranteed Borrower (or any other Person) before or as a condition to the
obligations of the Guarantor hereunder. The Agent or any Bank may permit the
indebtedness of the Guaranteed Borrower to the Agent or any Bank to include
indebtedness other than the Guaranteed Obligations, and may apply any amounts
received from any source, other than from the Guarantor, to that portion of the
Guaranteed Borrower's indebtedness to the Agent or any Bank which is not a part
of the Obligations.
2.2 Currency. Payments hereunder shall be made in the same currency
as the Guaranteed Obligations so guaranteed. If and to the extent payments
hereunder are made in a different currency, payments required hereunder shall be
increased to the extent necessary to avoid any loss to the Agent or the Banks on
account of any change or changes in the value of such different currency from
the currency of the applicable Guaranteed Obligations.
2.3 Obligations Independent. The obligations hereunder are
independent of the obligations of the Guaranteed Borrower, and a separate action
or actions may be brought and prosecuted against the Guarantor whether any
action is brought against the Guaranteed Borrower or whether the Guaranteed
Borrower shall be joined in any such action or actions.
2.4 Authorization of Renewals, Etc. The Guarantor authorizes the
Agent and each Bank, without notice or demand and without affecting its
liability hereunder, from time to time:
(a) to renew, compromise, extend, accelerate or otherwise change
the time for payments of, or otherwise change the terms of, the Guaranteed
Obligations, including increase or decrease of the rate of interest thereon, or
otherwise change the terms of the Credit Agreement or any other Loan Document,
as permitted therein;
(b) to receive and hold security for the payment of this
Guaranty or the Guaranteed Obligations and exchange, enforce, waive, release,
fail to perfect, sell, or otherwise dispose of any such security;
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(c) to apply such security and direct the order or manner of
sale thereof as the Agent or any Bank, as the case may be, in its discretion may
determine; and
(d) to release or substitute any one or more of any endorsers or
guarantors of the Guaranteed Obligations.
The Guarantor further agrees that the performance or occurrence of any of the
acts or events described in clauses (a), (b), (c), and (d) above with respect to
indebtedness or other obligations of the Guaranteed Borrower, other than the
Guaranteed Obligations, to the Agent or any Bank, shall not affect the liability
of the Guarantor hereunder.
2.5 Waiver of Certain Rights. The Guarantor waives any right to
require the Agent or any Bank:
(a) to proceed against the Guaranteed Borrower or any other
Person;
(b) to proceed against or exhaust any security for the
Guaranteed Obligations or any other indebtedness of the Guaranteed Borrower to
the Agent or any Bank; or
(c) to pursue any other remedy in the Agent's or any such Bank's
power whatsoever.
2.6 Waiver of Certain Defenses. The Guarantor waives any defense
arising by reason of any disability or other defense of the Guaranteed Borrower
or the cessation from any cause whatsoever of the liability of the Guaranteed
Borrower, whether consensual or arising by operation of law or any bankruptcy,
insolvency or debtor relief proceeding, or from any other cause, or any claim
that the Guarantor's obligations exceed or are more burdensome than those of the
Guaranteed Borrower. The Guarantor waives all rights and defenses arising out
of an election of remedies by the Agent, or any Bank, even though that election
of remedies, such as a nonjudicial foreclosure with respect to security for the
Guaranteed Obligations, has terminated the Guarantor's rights of subrogation and
reimbursement against the Guaranteed Borrower by operation of applicable law,
and all rights or defenses the Guarantor may have by reason of protection
afforded to the Guaranteed Borrower with respect to the Guaranteed Obligations
pursuant to any antideficiency laws or other laws of applicable jurisdiction
limiting or discharging the Guaranteed Obligations. The Guarantor waives any
benefit of, and any right to participate in, any security or other guaranty now
or hereafter held by the Agent or any Bank securing the Guaranteed Obligations.
2.7 Waiver of Presentments, Etc. The Guarantor waives all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor and notices of acceptance of this
Guaranty and of the existence or creation of new Guaranteed Obligations or any
other indebtedness of the Guaranteed Borrower to the Agent or any Bank.
2.8 Information Relating to the Guaranteed Borrower. The Guarantor
acknowledges and agrees that it shall have the sole responsibility for obtaining
from the
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Guaranteed Borrower such information concerning the Guaranteed Borrower's
financial condition or business operations as the Guarantor may require, and
that neither the Agent nor any Bank has any duty at any time to disclose to the
Guarantor any information relating to the business, operations or financial
condition of the Guaranteed Borrower.
2.9 Right of Setoff. In addition to any rights and remedies of the
Banks provided by law, if the Guarantor has failed to make any payment due
hereunder upon demand, each Bank is authorized at any time and from time to
time, without prior notice to the Guarantor, any such notice being waived by the
Guarantor to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final)
(including deposits in other currencies in amounts determined at the Spot Rate
on the date of setoff) at any time held and other indebtedness at any time owing
by such Bank to or for the credit or the account of the Guarantor against any
and all obligations of the Guarantor now or hereafter existing under this
Guaranty or any other Loan Document, irrespective of whether or not the Agent or
such Bank shall have made demand under this Guaranty or any other Loan Document.
Each Bank agrees promptly to notify the Guarantor and the Agent after any such
set-off and application made by such Bank; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of each Bank under this Section 2.9 are in addition to
the other rights and remedies (including, without limitation, other rights of
set-off) which such Bank may have.
2.10 Subordination. Any obligations of the Guaranteed Borrower to
the Guarantor, now or hereafter existing, constituting obligations to the
Guarantor as subrogee of the Agent or any Bank or resulting from the Guarantor's
performance under this Guaranty, are hereby fully subordinated in time and
priority of payment to the Obligations.
2.11 Reinstatement of Guaranty. If any payment or transfer of any
interest in property by the Guaranteed Borrower to the Agent or any Bank in
fulfillment of any Guaranteed Obligation is rescinded or must at any time
(including after the return or cancellation of this Guaranty) be returned, in
whole or in part, by the Agent or any Bank to the Guaranteed Borrower or any
other Person, upon the insolvency, bankruptcy or reorganization of the
Guaranteed Borrower or otherwise, this Guaranty shall be reinstated with respect
to any such payment or transfer, regardless of any such prior return or
cancellation.
2.12 Powers. It is not necessary for the Agent or any Bank to
inquire into the powers of the Guaranteed Borrower or of the officers,
directors, partners or agents acting or purporting to act on its behalf, and any
Guaranteed Obligations made or created in reliance upon the professed exercise
of such powers shall be guaranteed hereunder.
2.13 Taxes. (a) Any and all payments by the Guarantor to each Bank
or the Agent under this Guaranty shall be made free and clear of, and without
deduction or withholding for, any Taxes. In addition, the Guarantor shall pay
all Other Taxes.
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(b) If the Guarantor shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any sum
payable hereunder to any Bank or the Agent, then:
(i) the sum payable shall be increased as necessary so
that, after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section), such Bank or the Agent, as the case may be, receives and
retains an amount equal to the sum it would have received and retained had
no such deductions or withholdings been made;
(ii) the Guarantor shall make such deductions and
withholdings;
(iii) the Guarantor shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance
with applicable law; and
(iv) the Guarantor shall also pay to each Bank or the
Agent for the account of such Bank, at the time interest is paid, on
request of such Bank after such incurrence, Further Taxes in the amount
that the respective Bank determines in good faith as necessary to preserve
the after-tax yield such Bank would have received if such Taxes, Other
Taxes or Further Taxes had not been imposed.
(c) The Guarantor agrees to indemnify and hold harmless each
Bank and the Agent for the full amount of (i) Taxes, (ii) Other Taxes, and (iii)
Further Taxes in the amount that the respective Bank determines in good faith as
necessary to preserve the after-tax yield such Bank would have received if such
Taxes, Other Taxes or Further Taxes had not been imposed, and any liability
(including penalties, interest, additions to tax and expenses) arising therefrom
or with respect thereto, whether or not such Taxes, Other Taxes or Further Taxes
were correctly or legally asserted; provided, that the Guarantor shall not be
required to indemnify a Bank for any such liability which arose because of the
failure of said Bank to make a payment for more than five days after such Bank
became aware of the requirement to make such payment. Payment under this
indemnification shall be made within 30 days after the date the applicable Bank
or the Agent makes written demand therefor.
(d) Within 30 days after the date of any payment by the
Guarantor of Taxes, Other Taxes or Further Taxes, the Guarantor shall furnish to
each Bank or the Agent the original or a certified copy of a receipt evidencing
payment thereof, or other evidence of payment satisfactory to such Bank or the
Agent.
(e) For purposes of this Section, (i) "Taxes" means any and all
present or future taxes, levies, assessments, imposts, duties, deductions, fees,
withholdings or similar charges, and all liabilities with respect thereto,
excluding, in the case of each Bank and the Agent, respectively, taxes imposed
on or measured by its net income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Bank or the Agent, as the case
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may be, is organized or maintains a lending office in respect of the Credit
Agreement; (ii) "Other Taxes" means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery, performance, enforcement or registration of, or otherwise with respect
to, this Guaranty; and (iii) "Further Taxes" means any and all present or future
taxes, levies, assessments, imposts, duties, deductions, fees, withholdings or
similar charges (including, without limitation, net income taxes and franchise
taxes), and all liabilities with respect thereto, imposed by any jurisdiction on
account of amounts payable or paid pursuant to this Section.
3. Representations and Warranties. The Guarantor represents and warrants
to the Agent and each Bank as follows:
3.1 Existence and Power. The Guarantor (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation; (b) has the power and authority and all
governmental licenses, authorizations, consents and approvals to own its assets,
carry on its business and to execute, deliver, and perform its obligations under
this Guaranty and any other Loan Document to which it is a party; (c) is duly
qualified as a foreign corporation, and licensed and in good standing, under the
laws of each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification or license except to the
extent failure to so qualify would not have a Material Adverse Effect; and (d)
is in compliance with all Requirements of Law except to the extent the failure
to so comply would not have a Material Adverse Effect.
3.2 Corporate Authorization; No Contravention. The execution,
delivery and performance by the Guarantor of this Guaranty and any other Loan
Document to which it is party, have been duly authorized by all necessary
corporate action, and do not and will not (a) contravene the terms of any of the
Guarantor's Organic Documents; (b) conflict with or result in any material
breach or contravention of, or the creation of any lien under, any document
evidencing any material Contractual Obligation to which the Guarantor is a party
or any order, injunction, writ or decree of any Governmental Authority to which
the Guarantor or its property is subject; or (c) violate any Requirement of Law.
3.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Guarantor of
this Guaranty or any other Loan Document to which it is a party.
3.4 Binding Effect. This Guaranty and each other Loan Document to
which the Guarantor is a party constitute the legal, valid and binding
obligations of the Guarantor, enforceable against the Guarantor in accordance
with their respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
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3.5 Regulated Entities. The Guarantor is not subject to any statute
or regulation limiting its ability to incur or guarantee Debt.
4. Miscellaneous
4.1 Application of Payments on Guaranty. All payments required to be
made by the Guarantor hereunder shall, unless otherwise expressly provided
herein, be made to the Agent for the account of the Banks at the Administrative
Agent's Payment Office. The Agent will promptly distribute to each Bank its
share of such payment in like funds as received. Payments received from the
Guarantor shall, unless otherwise expressly provided herein, be applied to
costs, fees, or other expenses due under the Loan Documents, any interest, any
principal due under the Loan Documents and any other Guaranteed Obligations, in
such order as the Agent, with the consent of or at the request of the Required
Banks, shall determine.
4.2 Assignments and Participations. Any Bank may from time to time,
without notice to the Guarantor and without affecting the Guarantor's
obligations hereunder, transfer its interest in the Guaranteed Obligations to
Participants and Assignees as provided in the Credit Agreement. The Guarantor
agrees that each such transfer will give rise to a direct obligation of the
Guarantor to each such Participant and Assignee and that each such Participant
and Assignee shall have the same rights and benefits under this Guaranty as it
would have if it were a Bank party to the Credit Agreement and this Guaranty.
4.3 Loan Document. This Guaranty is a Loan Document executed and
delivered pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
4.4 Waivers; Writing Required. No delay or omission by the Agent or
any Bank to exercise any right under this Guaranty shall impair any such right,
nor shall it be construed to be a waiver thereof. No waiver of any single breach
or default under this Guaranty shall be deemed a waiver of any other breach or
default. Any amendment or waiver of any provision of this Guaranty must be in
writing and signed by the Guarantor and the Agent, with the written consent of
the Required Banks or all of the Banks, in accordance with the terms of Section
10.1 of the Credit Agreement.
4.5 Remedies. All rights and remedies provided in this Guaranty and
any instrument or agreement referred to herein are cumulative and are not
exclusive of any rights or remedies otherwise provided by law. Any single or
partial exercise of any right or remedy shall not preclude the further exercise
thereof or the exercise of any other right or remedy.
4.6 Costs and Expenses. The Guarantor agrees to pay or reimburse the
Agent and each Bank within five Business Days after demand for all reasonable
costs and expenses (including Attorney Costs) incurred by them in connection
with the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Guaranty (including in connection with any "workout" or
restructuring regarding amounts due under this Guaranty, and including in any
insolvency proceeding or appellate proceeding).
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4.7 Severability. The illegality or unenforceability of any
provision of this Guaranty or any instrument or agreement referred to herein
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Guaranty or any instrument or agreement referred to
herein.
4.8 Governing Law and Jurisdiction. (a) THIS GUARANTY SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS;
PROVIDED THAT THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY
AND ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF
ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND BY
EXECUTION AND DELIVERY OF THIS GUARANTY, THE GUARANTOR, CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
EACH OF THE GUARANTOR, THE AGENT AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
GUARANTY OR ANY DOCUMENT RELATED HERETO. THE GUARANTOR, THE AGENT AND THE BANKS
EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
4.9 Waiver of Jury Trial. THE GUARANTOR, THE BANKS AND THE AGENT
EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS GUARANTY, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE GUARANTOR, THE BANKS AND THE AGENT EACH AGREE THAT ANY
SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE
RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY
ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY
AND THE OTHER LOAN DOCUMENTS.
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4.10 Judgment. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder in one currency into
another currency, the rate of exchange used shall be that at which in accordance
with its normal banking procedures the Agent could purchase the first currency
with such other currency on the Business Day preceding that on which final
judgment is given. The obligation of the Guarantor in respect of any such sum
due from it to the Agent hereunder shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this Guaranty (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by the Agent of any sum adjudged to be so due in the Judgment
Currency, the Agent may in accordance with normal banking procedures purchase
the Agreement Currency with the Judgment Currency. If the amount of the
Agreement Currency so purchased is less than the sum originally due to the Agent
in the Agreement Currency, the Guarantor agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Agent or the Person to whom
such obligation was owing against such loss.
4.11 Entire Agreement. This Guaranty (a) integrates all the terms
and conditions mentioned herein or incidental hereto, (b) supersedes all oral
negotiations and prior writings with respect to the subject matter hereof, and
(c) is intended by the parties as the final expression of the agreement with
respect to the terms and conditions set forth in this Guaranty and any such
instrument, agreement and document and as the complete and exclusive statement
of the terms agreed to by the parties.
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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty by its
duly authorized officers as of the day and year first above written.
[______________________________]
By:
Name:
Title:
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