Exhibit 10.31
PARENT GUARANTEE
PARENT GUARANTEE (this "Guarantee"), dated as of February 11, 2003,
made by US HOME SYSTEMS, INC., a Delaware corporation, (the "Guarantor"), in
favor of (a) FCC ACCEPTANCE CORP., a Delaware corporation (the "Company") and
(b) the Agent (as defined below) on behalf of the Lenders (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to the Purchase and Contribution Agreement, dated as
of February 11, 2003 (the "Purchase Agreement"), between First Consumer Credit,
Inc., a Texas corporation and a subsidiary of the Guarantor ("FCC"), as servicer
(FCC, and no other person in such capacity, the "Servicer") and as seller of
Contracts (as defined below) (in such capacity, the "Seller"), and the Company,
the Company has agreed to purchase Contracts from the Seller upon the terms and
subject to the conditions set forth therein;
WHEREAS, pursuant to the Receivables Loan and Security Agreement,
dated as of February 11, 2003 (the "RLSA"), among the Company, the Servicer, the
lenders named therein (the "Lenders") and DZ Bank AG Deutsche
Zentral-Genossenschaftsbank, Frankfurt Am Main, as agent for the Lenders (in
such capacity, the "Agent"), the Lenders have agreed to make Loans to the
Company secured by Contracts and other collateral upon the terms and subject to
the conditions set forth therein;
WHEREAS, the Seller and the Servicer are members of an affiliated
group of corporations that includes the Guarantor;
WHEREAS, the Guarantor will derive substantial direct and indirect
benefit from the transactions contemplated by the Purchase Agreement and the
RLSA; and
WHEREAS, it is a condition precedent to the obligation of the Company
to purchase the Contracts from the Seller and to the Lenders entering into the
RLSA that the Guarantor shall have executed and delivered this Guarantee to the
Company and the Agent;
NOW, THEREFORE, in consideration of the premises and to induce the
Company to enter into the Purchase Agreement and the Lenders to enter into the
RLSA, the Guarantor hereby agrees with the Company and the Agent as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined
in the RLSA and used herein shall have the meanings given to them in the RLSA.
(b) As used herein:
(i) "Obligations" means: the collective reference to the Seller
Obligations and the Servicer Obligations;
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(ii) "Seller Obligations" means: the obligations and liabilities
of the Seller to any of the Company, the Agent and the Lenders, whether
direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter incurred, which may arise under, out of, or in
connection with, (i) any fraud or intentional misrepresentation by the
Seller in connection with, or in any way related to, the performance of, or
failure to perform, any of the Seller's duties and obligations under the
Purchase Agreement, (ii) any intentional violations of the Seller's
representations, warranties or covenants in the Purchase Agreement and any
violations of the Seller's representations, warranties or covenants in the
Purchase Agreement caused by the Seller's willful misconduct, (iii) the
misapplication and/or misappropriation of any funds which the Seller is
obligated to deliver to the Company or any other person in accordance with
the terms of the Purchase Agreement or (iv) the intentional failure by the
Seller to fully preserve, maintain and protect the Company's ownership
interest in, and the Agent's first priority perfected security interest in,
the Receivables, the Related Security and the Other Conveyed Property
related thereto which has been Conveyed (as defined in the Purchase
Agreement) to the Company in accordance with the terms of the Purchase
Agreement; and
(iii) "Servicer Obligations" means: the obligations and
liabilities of the Servicer to any of the Agent, the Lenders and the
Company, whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter incurred, which may arise under, out
of, or in connection with, (i) any fraud or intentional misrepresentation
by the Servicer in connection with the performance of any its duties and
obligations under the RLSA or any other Transaction Documents, (ii) any
intentional violations of any representations, warranties or covenants in
the RLSA or any other Transaction Document and any violations of the
Servicer's representations, warranties or covenants in the RLSA or any
other Transaction Documents caused by the Servicer's willful misconduct,
(iii) the intentional misapplication and/or misappropriation by the
Servicer of funds on deposit in the Collection Account, the Sinking Fund
Account or the Lock-Box Account or any other funds which constitute
Collections or are otherwise due to the Agent or the Lender under the terms
of the Transaction Documents, (iv) the intentional failure of the Servicer
to deliver any payments, collections or proceeds which it is obligated to
deliver in accordance with the terms of the RLSA or of any other
Transaction Document at the times it is obligated to make such deliveries
under the terms of the RLSA or of any other Transaction Document or (v) the
intentional failure by the Servicer to fully preserve, maintain and protect
the Agent's and the Lender's security interest in the Pledged Assets in
accordance with the terms of the RLSA or any other Transaction Document.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Guarantee shall refer to this Guarantee as a whole and
not to any particular provision of this Guarantee, and section and paragraph
references are to this Guarantee 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.
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2. Guarantee. (a) (i) The Guarantor hereby unconditionally and
irrevocably guarantees to the Company, the Agent and the Lenders and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Seller when due (whether at the stated
maturity, by acceleration or otherwise) of the Seller Obligations; and
(ii) The Guarantor hereby unconditionally and irrevocably
guarantees to the Agent for the benefit of the Lenders and their respective
successors, indorsees, transferees and assigns, the prompt and complete
payment and performance by the Servicer when due (whether at the stated
maturity, by acceleration or otherwise) of the Servicer Obligations.
(b) The Guarantor further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which may be paid or incurred by the Company, the Agent or the Lenders
in enforcing, or obtaining advice of counsel in respect of, any rights with
respect to, or collecting, any or all of the Seller Obligations and the Servicer
Obligations and/or enforcing any rights with respect to, or collecting against,
the Guarantor under this Guarantee. This Guarantee shall remain in full force
and effect until all the Obligations and the obligations of the Guarantor
hereunder are paid and performed in full and the Lender shall have no further
obligation to make any additional Loans, notwithstanding that from time to time
prior thereto the Seller or the Servicer may be free from any Obligations.
(c) No payment or payments made by the Seller, the Servicer, the
Guarantor, any other guarantor or any other Person or received or collected by
the Company, the Agent or any Lender from the Seller, the Servicer, the
Guarantor, any other guarantor or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of the Guarantor
hereunder which shall, notwithstanding any such payment or payments other than
payments made by the Guarantor in respect of the Obligations or payments
received or collected from the Guarantor in respect of the Obligations
(including, without limitation, pursuant to Section 3 hereof), remain liable for
the Obligations up to the maximum liability of the Guarantor hereunder until the
Obligations are paid in full and the Lender shall have no further obligation to
make any additional Loans.
(d) The Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Company or the Agent on account of its
liability hereunder, it will notify the Agent in writing that such payment is
made under this Guarantee for such purpose.
(e) This Guarantee shall not constitute a guarantee of collectibility
of any of the Contracts or the Pledged Assets related thereto.
3. Right of Set-off. The Guarantor hereby irrevocably authorizes the
Company, the Agent and each Lender at any time and from time to time without
notice to the Guarantor, any such notice being expressly waived by the
Guarantor, to set-off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Company, the Agent or such Lender to or for the credit or the
account of the Guarantor, or any
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part thereof in such amounts as the Company, the Agent or such Lender may elect,
against and on account of the obligations and liabilities of the Guarantor to
the Company, the Agent or such Lender hereunder and claims of every nature and
description of the Company, the Agent or such Lender against the Guarantor, in
any currency, whether arising hereunder, under the Purchase Agreement, the RLSA,
any Transaction Document or otherwise, as the Company, the Agent or such Lender
may elect, whether or not the Company, the Agent or any Lender has made any
demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Company, the Agent and each Lender shall notify the
Guarantor promptly of any such set-off and the application made by the Company,
the Agent or such Lender; provided, that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of the
Company, the Agent and each Lender under this section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which the Company, the Agent or such Lender may have.
4. No Subrogation.
(a) Notwithstanding any payment or payments made by the Guarantor
hereunder or any set-off or application of funds of the Guarantor by the
Company, the Guarantor shall not be entitled to be subrogated to any of the
rights of the Company against the Seller or any collateral security or guarantee
or right of offset held by the Company for the payment of the Seller
Obligations, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from the Seller in respect of payments made by the
Guarantor hereunder, until all amounts owing to the Company by the Seller on
account of the Seller Obligations are paid in full and the Purchase Agreement is
terminated. If any amount shall be paid to the Guarantor on account of such
subrogation rights at any time when all of the Seller Obligations shall not have
been paid in full, such amount shall be held by the Guarantor in trust for the
Company, segregated from other funds of the Guarantor, and shall, forthwith upon
receipt by the Guarantor, be turned over to the Company in the exact form
received by the Guarantor (duly indorsed by the Guarantor to the Company, if
required), to be applied against the Seller Obligations, whether matured or
unmatured, in such order as the Company may determine.
(b) Notwithstanding any payment or payments made by the Guarantor
hereunder or any set-off or application of funds of the Guarantor by the Agent
or any Lender, the Guarantor shall not be entitled to be subrogated to any of
the rights of the Agent or any Lender against the Servicer or any collateral
security or guarantee or right of offset held by the Agent or any Lender for the
payment of the Servicer Obligations, nor shall the Guarantor seek or be entitled
to seek any contribution or reimbursement from the Servicer in respect of
payments made by the Guarantor hereunder, until all amounts owing to the Agent
or any Lender by the Servicer on account of the Servicer Obligations are paid in
full and the RLSA is terminated. If any amount shall be paid to the Guarantor on
account of such subrogation rights at any time when all of the Servicer
Obligations shall not have been paid in full, such amount shall be held by the
Guarantor in trust for the Agent and the Lenders, segregated from other funds of
the Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned
over to the Agent in the exact form received by the Guarantor (duly indorsed by
the Guarantor to the Agent, if required), to be applied against the Servicer
Obligations, whether matured or unmatured, in such order as the Agent may
determine.
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5. Amendments, etc. with Respect to the Obligations; Waiver of Rights.
(a) The Guarantor shall remain obligated hereunder notwithstanding
that, without any reservation of rights against the Guarantor and without notice
to or further assent by the Guarantor, any demand for payment of any of the
Seller Obligations made by the Company may be rescinded by such party and any of
the Seller Obligations continued, and the Seller Obligations, or the liability
of any other party upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Company, and the Purchase
Agreement and the other Transaction Documents and any other documents executed
and delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Company may deem advisable from time to
time, and any collateral security, guarantee or right of offset at any time held
by the Company for the payment of the Seller Obligations may be sold, exchanged,
waived, surrendered or released. The Company shall not have any obligation to
protect, secure, perfect or insure any Lien at any time held by it as security
for the Seller Obligations or for this Guarantee or any property subject
thereto. When making any demand hereunder against the Guarantor, the Company
may, but shall be under no obligation to, make a similar demand on the Seller or
any other guarantor, and any failure by the Company to make any such demand or
to collect any payments from the Seller or any such other guarantor or any
release of the Seller of such other guarantor shall not relieve the Guarantor in
respect of which a demand or collection is not made of its obligations or
liabilities hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of the Company against the Guarantor.
For the purposes hereof "demand" shall include the commencement and continuance
of any legal proceedings.
(b) The Guarantor shall remain obligated hereunder notwithstanding
that, without any reservation of rights against the Guarantor and without notice
to or further assent by the Guarantor, any demand for payment of any of the
Servicer Obligations made by the Agent or any Lender may be rescinded by such
party and any of the Servicer Obligations continued, and the Servicer
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Agent or such Lender, and the RLSA and the other Transaction Documents and
any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the Agent
(or the Required Lenders or all the Lenders, as the case may be) may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Agent or any Lender for the payment of the
Servicer Obligations may be sold, exchanged, waived, surrendered or released.
Neither the Agent nor any Lender shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the Servicer
Obligations or for this Guarantee or any property subject thereto. When making
any demand hereunder against the Guarantor, the Agent and the Lenders may, but
shall be under no obligation to, make a similar demand on the Servicer or any
other guarantor, and any failure by the Agent or any Lender to make any such
demand or to collect any payments from the Servicer or any such other guarantor
or any release of the Servicer or such other guarantor shall not relieve the
Guarantor in respect of which a demand or collection is not made of its
obligations or liabilities hereunder, and shall not
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impair or affect the rights and remedies, express or implied, or as a matter of
law, of the Agent or the Lenders against the Guarantor. For the purposes hereof
"demand" shall include the commencement and continuance of any legal
proceedings.
6. Guarantee Absolute and Unconditional. The Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Company, the Agent or any
Lender upon this Guarantee or acceptance of this Guarantee; the Obligations, and
any of them shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon this
Guarantee; and all dealings between the Seller, the Servicer and the Guarantor,
on the one hand, and the Company, the Agent and the Lenders, on the other hand,
likewise shall be conclusively presumed to have been had or consummated in
reliance upon this Guarantee. The Guarantor waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Seller, the Servicer or the Guarantor with respect to any of the Obligations.
The Guarantor understands and agrees that this Guarantee shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity, regularity or enforceability of the Purchase Agreement, the
RLSA or any other Transaction Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Company, the Agent or any
Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the Seller, the Servicer or any other Person against the Company, the Agent or
any Lender or (c) any other circumstance whatsoever (with or without notice to
or knowledge of the Seller, the Servicer or the Guarantor) which constitutes, or
might be construed to constitute, an equitable or legal discharge of the Seller
or the Servicer for the Obligations, or of the Guarantor under this Guarantee,
in bankruptcy or in any other instance. When pursuing its rights and remedies
hereunder against the Guarantor, the Company, the Agent or any Lender may, but
shall be under no obligation to, pursue such rights and remedies as it may have
against the Seller, the Servicer or any other Person or against any collateral
security or guarantee for the Obligations or any right of offset with respect
thereto, and any failure by the Company, the Agent or any Lender to pursue such
other rights or remedies or to collect any payments from the Seller, the
Servicer or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release of
the Seller, Servicer or any such other Person or any such collateral security,
guarantee or right of offset, shall not relieve the Guarantor of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Company, the Agent or
any Lender against the Guarantor.
7. Reinstatement. This Guarantee shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Company, the Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Seller, the Servicer or of the
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Seller, the Servicer
or the Guarantor or any substantial part of its property, or otherwise, all as
though such payments had not been made.
8. Representations and Warranties of the Guarantor. The Guarantor
hereby represents and warrants that:
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(a) Organization, Corporate Powers. It is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite corporate power and authority to carry on its
business as now conducted and has the corporate power and authority to execute,
deliver and perform each of this Guarantee and each agreement or instrument
contemplated hereby or thereby to which it is or will be a party.
(b) Authorization. This Guarantee is within the Guarantor's corporate
powers and has been duly authorized by all requisite corporate and, if required,
stockholder action.
(c) Enforceability. This Guarantee has been duly executed and
delivered by it and constitutes a legal, valid and binding obligation of it
enforceable against it in accordance with its terms, except as enforceability
may be limited by (i) bankruptcy, insolvency, moratorium, reorganization or
similar laws affecting creditors' rights generally and (ii) general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(d) Governmental Approvals; No Conflicts. The execution, delivery and
performance by it of this Guarantee (i) do not require any consent or approval
of, registration or filing with, or any other action by, any Government Entity,
except such as have been obtained or made and are in full force and effect, (ii)
will not violate in any material respect any Requirement of Law, (iii) will not
violate or result in a default under any material contractual obligation, and
(iv) will not result in the creation or imposition of any lien on any material
properties or revenues of the Guarantor.
(e) Financial Condition. The consolidated balance sheet of the
Guarantor and its consolidated Subsidiaries as of September 30, 2002, and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by Ernst & Young LLP, copies of which have
heretofore been furnished to the Agent, present fairly the consolidated
financial condition of the Guarantor and its consolidated Subsidiaries as at
such date, and the consolidated results of their operations and their
consolidated cash flows for the fiscal year then ended. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants and as disclosed therein).
(f) No change. As of the Closing Date, since September 30, 2002, there
has been no development or event that has had or could reasonably be expected to
have a material adverse effect on the Guarantor's business, operations,
property, condition (financial or otherwise) or prospects.
(g) Compliance with Laws and Agreements. It is in compliance with all
laws, regulations and orders of any Government Entity applicable to it or its
property and all indentures, agreements and other instruments binding upon it or
its property, except to the extent any such non-compliance could not reasonably
be expected to have a material adverse effect.
(h) Absence of Certain Restrictions. No indenture, certificate of
designation for preferred stock, agreement or other instrument to which it or
any of its Subsidiaries is a party will prohibit or materially restrain, or have
the effect of prohibiting or materially restraining, or
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imposing materially adverse conditions upon, the sale and assignment of
Receivables, the Related Security and Other Conveyed Property.
(i) Separate Corporate Existence of the Company. It acknowledges that
the Lenders are entering into the transactions contemplated by the Transaction
Documents in reliance upon the Company's identity as a legal entity separate
from the Seller, the Guarantor and all other Subsidiaries and Affiliates of the
Guarantor.
9. Covenants. The Guarantor hereby agrees that, so long as there are
any amounts outstanding with respect to the Receivables, the Related Security
and Other Conveyed Property previously sold by the Seller to the Company, the
Guarantor shall:
(a) Other Information. Furnish or cause to be furnished, to the Agent,
promptly, such other information regarding its operations, business affairs and
financial condition as any Lender may from time to time reasonably request
through the Agent.
(b) Preservation of Separate Corporate Existence of the Company. Take
(or refrain from taking, as the case may be) such actions as shall be required
to insure its compliance with the following provisions:
(i) The Guarantor will not pay the Company's operating expenses
and liabilities;
(ii) Each of the Guarantor, the Seller, and all other Affiliates
and Subsidiaries of the Guarantor shall maintain corporate records and
books of account separate from those of the Company and telephone numbers,
mailing addresses, stationery and other business forms that are separate
and distinct from those of the Company;
(iii) Any financial statements of the Guarantor that consolidate
the Receivables, the Related Security and Other Conveyed Property. shall
contain a detailed note that describes the Seller's sale, and intent to
sell, the Receivables, the Related Security and Other Conveyed Property.;
(iv) The Company's assets will be maintained in a manner that
facilitates their identification and segregation from those of the Seller
and the Guarantor;
(v) Each of the Guarantor, the Seller, and all other Affiliates
and Subsidiaries of the Guarantor shall strictly observe corporate
formalities in its dealings with the Company, and no funds or other assets
of the Company will be commingled or pooled with those of the Guarantor,
except as permitted by the Transaction Documents. The Guarantor will not
maintain joint bank accounts with the Company or other depository accounts
with the Company to which the Guarantor has independent access (other than
as contemplated by the Transaction Documents);
(vi) The Guarantor shall maintain its deposit account or accounts
separate from those of the Company and ensure that its funds will not be
diverted to the
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Company, nor will such funds be commingled with the funds of the Company,
except as permitted by the Transaction Documents;
(vii) To the extent that it shares any officers or other
employees with the Company, the salaries of and the expenses related to
providing benefits to such officers and other employees will be fairly
allocated among it and the Company, and it and the Company shall bear their
fair shares of the salary and benefit costs associated with all such common
officers and employees;
(viii) To the extent that it jointly contracts with the Company
to do business with vendors or service providers or to share overhead
expenses, the costs incurred in so doing will be allocated fairly between
it and the Company, and it and the Company shall bear their fair shares of
such costs. To the extent that it contracts or does business with vendors
or service providers where the goods and services provided are partially
for the benefit of the Company, the costs incurred in so doing shall be
fairly allocated between it and the Company in proportion to the benefit of
the goods or services each is provided, and it and the Company shall bear
their fair shares of such costs. All material transactions between it and
the Company, whether currently existing or hereafter entered into, shall be
only on an arm's length basis, it being understood and agreed that the
transactions contemplated in the Transaction Documents meet the
requirements of this clause (viii);
(ix) the Guarantor shall maintain office space separate from the
office space of the Company (but which may be located at the same address
as the Company). To the extent that it and the Company have offices in the
same location, there shall be a fair and appropriate allocation of overhead
costs between them, and each shall bear its fair share of such expenses;
and
(x) The Guarantor shall not assume or guarantee any of the
liabilities of the Company.
(c) [Intentionally Omitted.]
(d) Tangible Net Worth. Not permit Tangible Net Worth at any time to
be less than $4,500,000.
10. Payments. The Guarantor hereby guarantees that payments hereunder
will be paid to the Company (by means of a deposit in the Collection Account) or
the Agent (in immediately available funds to an account specified by the Agent),
as the case may be, without set-off or counterclaim in U.S. Dollars.
11. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Company, the Guarantor and the
Agent, or to such other address as may be hereafter notified by the respective
parties hereto:
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the Company: FCC Acceptance Corp.
00000 Xxxxxxxxx Xxxxx (Xxxxx 000)
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxx
Telecopy: (000) 000-0000
the Guarantor: US Home Systems, Inc.
00000 Xxxxxxxxx Xxxxx (Xxxxx 000)
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxx
Telecopy: (000) 000-0000
Agent: DZ Bank AG Deutsche Zentral-
Genossenschaftsbank, Frankfurt Am Main
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telecopy: (000) 000-0000
12. Counterparts. This Guarantee may be executed by the Guarantor on
any number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. A set of the
counterparts of this Guarantee signed by the Guarantor shall be lodged with the
Company and the Agent. Delivery of an executed counterpart of a signature page
to this Guarantee by facsimile shall be effective as delivery of a manually
executed counterpart of this Guarantee.
13. Severability. Any provision of this Guarantee which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14. Integration. This Guarantee represents the agreement of the
Guarantor with respect to the subject matter hereof and there are no promises or
representations by the Company, the Agent or any Lender relative to the subject
matter hereof not reflected herein.
15. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of
the terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except in writing signed by the Company and the Guarantor
and consented to by the Agent and Lender.
(b) None of the Company, the Agent or any Lender shall by any act
(except by a written instrument pursuant to paragraph 15(a) hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of the
Company, the Agent or any Lender any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any
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other right, power or privilege. A waiver by the Company, the Agent or any
Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy that the Company, the Agent or any
Lender would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
16. Section Headings. The section headings used in this Guarantee are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
17. Successors and Assigns. This Guarantee shall be binding upon the
successors and assigns of the Guarantor and shall inure to the benefit of the
Company, the Agent, the Lenders and their successors and assigns. The Guarantor
acknowledges that the Company shall assign all of its rights hereunder to the
Agent for the benefit of the Lenders. The Guarantor consents to such assignment
and agrees that the Agent and the Lenders shall be entitled to enforce the terms
of this Guarantee and the rights (including, without limitation, the right of
the Agent to grant or withhold any consent or waiver or give any notice) of the
Company directly against the Guarantor, whether or not an Event of Default has
occurred and that no consent, waiver or notice given hereunder by the Company
shall be effective unless the Agent has given its written consent thereto. The
Guarantor further agrees that, in respect of its obligations hereunder, it will
act at the direction of and in accordance with all requests and instructions
from the Agent until all the Obligations are paid and performed in full and the
Lender shall have no further obligation to make any additional Loans and the
RLSA has been terminated.
18. Governing Law; Jurisdiction; Consent to Service of Process. (a)
This Guarantee shall be governed by, and construed and interpreted in accordance
with, the law of the State of New York.
(b) The Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Guarantee, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that 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 law, in such Federal court. The
Guarantor 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 shall affect any
right that the Company, the Agent or any Lender may otherwise have to bring any
action or proceeding relating to this Guarantee against the Guarantor or its
properties in the courts of any jurisdiction.
(c) The Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which 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 in any court referred to
in paragraph (b) of this section. The Guarantor hereby
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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.
(d) The Guarantor irrevocably consents to service of process in the
manner provided for notices in Section 11. Nothing in this Guarantee will affect
the right of any party to this Guarantee to serve process in any other manner
permitted by law.
19. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY).
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
duly executed and delivered by its duly authorized officer as of the day and
year first above written.
The Guarantor:
US HOME SYSTEMS, INC.
By:
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Name:
Title:
