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Exhibit 4.7
GUARANTEE
GUARANTEE dated as of November 29, 1999, by Water Pik
Technologies, Inc., a Delaware corporation (the "Guarantor"), in favor of The
Chase Manhattan Bank, a New York banking corporation, as agent ("Agent") for (i)
the Lenders (the "Lenders") named in Schedule 2.01 of the Restated Credit
Agreement dated as of the date hereof, among Water Pik, Inc., a Delaware
corporation ("Water Pik" or a "Borrower"), Laars, Inc., a Delaware corporation
("Laars" or a "Borrower" and together with Water Pik, the "Borrowers"), the
Guarantor, the Lenders named therein, and the Agent (as amended, modified or
supplemented from time to time in accordance with its terms, the "Credit
Agreement"; capitalized terms used herein and not otherwise defined herein shall
have the meanings attributed thereto in the Credit Agreement) and (ii) itself as
issuer of the Letters of Credit.
The Agent and the Lenders have agreed to extend Loans and certain
other financial accommodations to, including, without limitation, the issuance
of the Letters of Credit for the account of the Borrowers pursuant to, and
subject to the terms and conditions of, the Credit Agreement. The obligation of
the Lenders to extend such Loans and of the Agent to issue the Letters of Credit
under the Credit Agreement is conditioned on the execution and delivery by the
Guarantor of a guarantee in the form hereof of the Obligations (such Obligations
to include, without limitation, the due and punctual payment and performance of
(a) the principal of and interest on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (b) Indebtedness at any time and from time to time under the Letters
of Credit, (c) all other obligations of the Borrowers at any time and from time
to time under the Credit Agreement and the other Loan Documents and (d) all
obligations of the Guarantor at any time and from time to time under the Loan
Documents).
Accordingly, in consideration of the premises and in order to
induce the Agent and the Lenders to make Loans and extend other financial
accommodations under the Credit Agreement, the Guarantor hereby agrees as
follows:
Section 1. Guarantee. The Guarantor hereby irrevocably and
unconditionally guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, and the punctual performance, of all
present and future Obligations of the Borrowers (the foregoing being herein
referred to as the "Guaranteed Obligations");
Section 2. Waiver. The Guarantor hereby absolutely,
unconditionally and irrevocably waives, to the fullest extent permitted by law,
(i) promptness, diligence, notice of acceptance and any
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other notice with respect to this Guarantee, (ii) presentment, demand of
payment, protest, notice of dishonor or nonpayment and any other notice with
respect to the Guaranteed Obligations, (iii) any requirement that the Agent or
Lenders protect, secure, perfect or insure any security interest or Lien or any
property subject thereto or exhaust any right or take any action against the
Borrowers or any other person or any Collateral, and (iv) any other action,
event or precondition to the enforcement of this Guarantee or the performance by
the Guarantor of the obligations hereunder.
Section 3. Guarantee Absolute. (a) The Guarantor guarantees that,
to the fullest extent permitted by law, the Guaranteed Obligations will be paid
or performed strictly in accordance with their terms, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Agent or any Lender with respect thereto.
(b) No invalidity, irregularity, voidability, voidness or
unenforceability of the Credit Agreement, the Notes, or any other Loan Document
or any other agreement or instrument relating thereto, or of all or any part of
the Guaranteed Obligations or of any security therefor shall affect, impair or
be a defense to this Guarantee.
(c) This Guarantee is one of payment and performance, not
collection, and the obligations of the Guarantor under this Guarantee are
independent of the Obligations of the Borrowers, and a separate action or
actions may be brought and prosecuted against the Guarantor to enforce this
Guarantee, irrespective of whether any action is brought against the Borrowers
or whether the Borrowers are joined in any such action or actions.
(d) The liability of the Guarantor under this Guarantee shall be
absolute and unconditional irrespective of:
(i) any change in the manner, place or terms of payment or
performance, and/or any change or extension of the time of payment or
performance of, renewal or alteration of, any Obligation, any security
therefor, or any liability incurred directly or indirectly in respect
thereof, or any other amendment or waiver of or any consent to departure
from the Credit Agreement or the Notes or any other Loan Document,
including any increase in the Guaranteed Obligations resulting from the
extension of additional credit to the Borrowers or any of their
subsidiaries or otherwise;
(ii) any sale, exchange, release, surrender, realization
upon any property by whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, all or any of the Guaranteed Obligations,
and/or any offset against, or failure to perfect, or continue the
perfection of, any Lien in any such property, or delay in the perfection
of any such Lien, or any amendment or waiver of or consent to departure
from any other guarantee for all or any of the Guaranteed Obligations;
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(iii) any exercise or failure to exercise any rights
against the Borrowers or others (including the Guarantor);
(iv) any settlement or compromise of any Obligation, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and any
subordination of the payment of all or any part thereof to the payment of
any Obligation (whether due or not) of the Borrowers to creditors of the
Borrowers other than the Guarantor;
(v) any manner of application of Collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any Collateral for all or any of the
Guaranteed Obligations or any other assets of the Borrowers or any of
their subsidiaries;
(vi) any change, restructuring or termination of the
existence of the Borrowers or any of their subsidiaries; or
(vii) any other agreements or circumstance of any nature
whatsoever which might otherwise constitute a defense available to, or a
discharge of, this Guarantee and/or obligations of the Guarantor
hereunder, or a defense to, or discharge of, the Borrowers or any other
person or party relating to this Guarantee or the obligations of the
Guarantor hereunder or otherwise with respect to the Loans, Letters of
Credit or other financial accommodations to the Borrowers.
(e) The Agent may at any time and from time to time (whether or
not after revocation or termination of this Guarantee) without the consent of,
or notice (except as shall be required by applicable statute and cannot be
waived) to, the Guarantor, and without incurring responsibility to the Guarantor
or impairing or releasing the obligations of the Guarantor hereunder, apply any
sums by whomsoever paid or howsoever realized to any Guaranteed Obligation
regardless of what Guaranteed Obligations remain unpaid.
(f) This Guarantee shall continue to be effective or be
reinstated, as the case may be, if claim is ever made upon the Agent or any
Lender for repayment or recovery of any amount or amounts received by the Agent
or such Lender in payment or on account of any of the Guaranteed Obligations and
the Agent or such Lender repays all or part of said amount by reason of any
judgment, decree or order of any court or administrative body having
jurisdiction over the Agent or such Lender or the respective property of each,
or any settlement or compromise of any such claim effected by the Agent
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or such Lender with any such claimant (including the Borrowers), then and in
such event the Guarantor agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon the Guarantor, notwithstanding
any revocation hereof or the cancellation of any note (including the Notes) or
other instrument evidencing any Obligation, and the Guarantor shall be and
remain liable to the Agent and/or such Lender hereunder for the amount so repaid
or recovered to the same extent as if such amount had never originally been
received by the Agent or such Lender.
Section 4. Continuing Guarantee. This Guarantee is a continuing
one and shall (i) remain in full force and effect until the indefeasible payment
and satisfaction in full of the Guaranteed Obligations, (ii) be binding upon the
Guarantor, its successors and assigns, and (iii) inure to the benefit of, and be
enforceable by, the Agent and its successors, transferees and assigns. All
obligations to which this Guarantee applies or may apply under the terms hereof
shall be conclusively presumed to have been created in reliance hereon.
Section 5. Representations, Warranties and Covenants. The
Guarantor hereby represents, warrants and covenants to and with the Agent
that:
(a) The Guarantor has the corporate power to execute and deliver
this Guarantee and to incur and perform its obligations hereunder;
(b) The Guarantor has duly taken all necessary corporate action
to authorize the execution, delivery and performance of this Guarantee
and to incur and perform its obligations hereunder;
(c) No consent, approval, authorization or other action by, and
no notice to or of, or declaration or filing with, any governmental or
other public body, or any other Person, is required for the due
authorization, execution, delivery and performance by the Guarantor of
this Guarantee or the consummation of the transactions contemplated
hereby;
(d) The execution, delivery and performance by the Guarantor of
this Guarantee do not and will not violate or otherwise conflict with any
term or provision of any material agreement, instrument, judgment,
decree, order or any statute, rule or governmental regulation applicable
to the Guarantor or result in the creation of any Lien upon any of its
properties or assets pursuant thereto;
(e) This Guarantee has been duly authorized, executed and
delivered by the Guarantor and constitutes the legal, valid and binding
obligation of the Guarantor, and is enforceable against the Guarantor in
accordance with its terms, except as enforcement thereof may be
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subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally, and general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law);
(f) No proceeding referred to in paragraph (e) or (f) of Article
VIII of the Credit Agreement is pending against the Guarantor and no
other event referred to in such Article VIII has occurred and is
continuing, and the property of the Guarantor is not subject to any
assignment for the benefit of creditors;
(g) The capital stock of Water Pik and Laars owned by the
Guarantor on the date hereof consists of 1000 shares of common stock,
$0.01 par value, and 1000 shares of common stock, $ 0.01 par value,
respectively, constituting all of the authorized, issued and outstanding
capital stock of the Borrowers on the date hereof and no Borrower has any
outstanding rights, options, warrants or agreements pursuant to which it
may be required to sell any of its capital stock or other equity
security; and
(h) Without the prior written consent of the Agent, own or
operate any assets or properties or engage in any business or other
activity whatsoever (including, without limitation, the incurring of
Indebtedness or the granting of Liens), except for its ownership of the
capital stock of the Borrowers and [Canadian Sub] and activities directly
in connection therewith and except as otherwise may be specifically
permitted by the other Loan Documents.
Section 6. Expenses. The Guarantor will upon demand reimburse the
Agent for any sums, costs, and expenses which the Agent may pay or incur
pursuant to the provisions of this Guarantee or in negotiating, executing,
perfecting, defending, protecting or enforcing this Guarantee or in enforcing
payment of the Guaranteed Obligations or otherwise in connection with the
provisions hereof, including court costs, collection charges, travel expenses,
and reasonable attorneys' fees, together with interest thereon as specified in
Section 12 hereof.
Section 7. Terms. (a) All terms defined in the UCC and used
herein shall have the meanings as defined in the UCC, unless the context
otherwise requires.
(b) The words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation".
(c) All references herein to Sections and subsections shall be
deemed to be references to Sections and subsections of this Guarantee unless the
context shall otherwise require.
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Section 8. Amendments and Modification. No provision hereof shall
be modified, altered or limited except by written instrument expressly referring
to this Guarantee and to such provision, and executed by the party to be
charged.
Section 9. Subordination of Subrogation Rights. The Guarantor
hereby waives and releases any and all rights and claims it may now or hereafter
have or acquire against the Borrowers that would constitute it a "creditor" of
the Borrowers for purposes of the Federal Bankruptcy Code, including all rights
of subrogation against the Borrowers and their property and all rights of
indemnification, contribution and reimbursement from the Borrowers and their
property, regardless of whether such rights arise in connection with this
Guarantee, by operation of law, pursuant to contract or otherwise.
Section 10. Remedies Upon Default; Right of Set-Off. (a) Upon the
occurrence and during the continuance of any Event of Default, the Agent may,
without notice to or demand upon the Borrowers or the Guarantor, declare any
Guaranteed Obligations immediately due and payable, and shall be entitled to
enforce the obligations of the Guarantor hereunder.
(b) Upon such declaration by the Agent, the Agent and any Lender
is hereby authorized at any time and from time to time, 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) at any time held and other indebtedness at
any time owing by the Agent or any Lender to or for the credit or the account of
the Guarantor against any and all of the obligations of the Guarantor now or
hereafter existing under this Guarantee, whether or not the Agent or such Lender
shall have made any demand under this Guarantee and although such obligations
may be contingent and unmatured. The Agent agrees promptly to notify the
Guarantor after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of the Agent and Lenders under this Section 10 are in addition to
other rights and remedies (including other rights of set-off) which the Agent
and Lenders may have.
Section 11. Statute of Limitations. Any acknowledgment or new
promise, whether by payment of principal or interest or otherwise and whether by
the Borrowers or others (including the Guarantor), with respect to any of the
Guaranteed Obligations shall, if the statute of limitations in favor of the
Guarantor against the Agent or Lenders shall have commenced to run, toll the
running of such statute of limitations and, if the period of such statute of
limitations shall have expired, prevent the operation of such statute of
limitations.
Section 12. Interest. All amounts payable from time to time by
the Guarantor hereunder shall bear interest at the interest rate per annum
specified in Section 2.08 of the Credit
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Agreement.
Section 13. Rights and Remedies Not Waived. No act, omission or
delay by the Agent shall constitute a waiver of its rights and remedies
hereunder or otherwise. No single or partial waiver by the Agent of any default
hereunder or right or remedy which it may have shall operate as a waiver of any
other default, right or remedy or of the same default, right or remedy on a
future occasion.
Section 14. Admissibility of Guarantee. The Guarantor agrees that
any copy of this Guarantee signed by the Guarantor and transmitted by telecopier
for delivery to the Agent shall be admissible in evidence as the original itself
in any judicial or administrative proceeding, whether or not the original is in
existence.
Section 15. Notices. All notices, requests and demands to or upon
the Agent or the Guarantor under this Agreement shall be in writing and given as
provided in the Credit Agreement (with respect to the Guarantor, to the
addresses of the Borrowers as set forth in the Credit Agreement).
Section 16. Counterparts. This Guarantee may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original
and all of which shall together constitute one and the same agreement.
Section 17. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL; ETC.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTEE MAY BE BROUGHT
IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
GUARANTEE, THE GUARANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS. THE GUARANTOR HEREBY IRREVOCABLY WAIVES, IN CONNECTION WITH
ANY SUCH ACTION OR PROCEEDING, (i) TRIAL BY JURY, (ii) TO THE EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION, INCLUDING 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 SUCH ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS AND (iii) THE RIGHT TO INTERPOSE ANY SET-OFF,
COUNTERCLAIM OR CROSS-CLAIM (UNLESS SUCH SET-OFF, COUNTERCLAIM OR CROSS-CLAIM
COULD NOT, BY
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REASON OF ANY APPLICABLE FEDERAL OR STATE PROCEDURAL LAWS, BE INTERPOSED,
PLEADED OR ALLEGED IN ANY OTHER ACTION).
(b) The Guarantor irrevocably consents to the service of process
of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by certified mail, postage prepaid, to the Guarantor
at its address determined pursuant to Section 15 hereof.
(c) Nothing herein shall affect the right of the Agent to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Guarantor in any other jurisdiction.
(d) The Guarantor hereby waives presentment, notice of dishonor
and protests of all instruments included in or evidencing any of the Guaranteed
Obligations, and any and all other notices and demands whatsoever (except as
expressly provided herein).
Section 18. GOVERNING LAW. THIS GUARANTEE AND THE GUARANTEED
OBLIGATIONS SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED IN SUCH STATE, WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
Section 19. Captions; Separability. (a) The captions of the
Sections and subsections of this Guarantee have been inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Guarantee.
(b) If any term of this Guarantee shall be held to be invalid,
illegal or unenforceable, the validity of all other terms hereof shall in no way
be affected thereby.
Section 20. Acknowledgment of Receipt. The Guarantor acknowledges
receipt of a copy of this Guarantee and each of the Loan Documents.
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IN WITNESS WHEREOF, the Guarantor has duly executed or caused
this Guarantee to be duly executed in the State of New York as of the date first
above set forth.
WATER PIK TECHNOLOGIES, INC.
By: /s/ S. L. Main
Name: S. L. Main
Title: Controller
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