Exhibit
10.5


 





















 


SUBSIDIARY GUARANTY


 


Dated as of February 27, 2004


 


From


 


THE GUARANTORS NAMED HEREIN


 


and


 


THE ADDITIONAL GUARANTORS REFERRED TO HEREIN


 


as Guarantors


 


in favor of


 


THE SECURED PARTIES REFERRED TO IN


THE CREDIT AGREEMENT REFERRED TO HEREIN


 





















 


TABLE OF
CONTENTS


 


	
  Section 1. Guaranty;
  Limitation Of Liability

  	
   

  
	
  Section 2. Guaranty
  Absolute

  	
   

  
	
  Section 3. Waivers
  and Acknowledgments

  	
   

  
	
  Section 4. Subrogation

  	
   

  
	
  Section 5. Payments
  Free and Clear of Taxes, Etc

  	
   

  
	
  Section 6. Covenants

  	
   

  
	
  Section 7. Amendments,
  Release of Guarantors, Etc.

  	
   

  
	
  Section 8. Guaranty
  Supplements

  	
   

  
	
  Section 9. Notices,
  Etc

  	
   

  
	
  Section 10. No Waiver;
  Remedies

  	
   

  
	
  Section 11. Right of
  Set-off

  	
   

  
	
  Section 12. Continuing
  Guaranty; Assignments under the Credit Agreement

  	
   

  
	
  Section 13. Execution
  in Counterparts

  	
   

  
	
  Section 14. Governing
  Law; Jurisdiction; Waiver of Jury Trial, Etc.

  	
   

  
	
   

  	
   

  
	
  Exhibit A - Guaranty Supplement

  	
   

  



 





















 


SUBSIDIARY GUARANTY


 


SUBSIDIARY GUARANTY dated as of February 27,
2004 (the “Guaranty”) made by the Persons listed on the
signature pages hereof under the caption “Subsidiary Guarantors” and the
Additional Guarantors (as defined in Section 8) (such Persons so listed
and the Additional Guarantors being, collectively, the “Guarantors” and, individually, a “Guarantor”) in favor of the Secured Parties (as defined in the Credit
Agreement referred to below).


 


PRELIMINARY STATEMENT


 


WMG Acquisition Corp., a Delaware corporation
(the “Company”), and certain Foreign Subsidiaries of
the Company (the “Overseas Borrowers” and,
together with the Company, the “Borrowers”) are parties to a Credit Agreement
dated as of February 27, 2004 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”; the capitalized terms
defined therein and not otherwise defined herein being used herein as therein
defined) with WMG Holdings Corp., certain Lenders party thereto, Bank of
America, N.A., as the L/C Issuer, the Swing Line Lender and the Administrative
Agent, and the other Agents named therein. Each Guarantor may receive, directly
or indirectly, a portion of the proceeds of the Loans under the Credit
Agreement and will derive substantial direct and indirect benefits from the
transactions contemplated by the Loan Documents and the Secured Hedge
Agreements (together with all instruments, agreements or other documents
evidencing the Cash Management Obligations, the “Finance Documents”). It
is a condition precedent to the making of Loans and the issuance of Letters of
Credit by the Lenders under the Credit Agreement and the entry by the Hedge
Banks into Secured Hedge Agreements from time to time that each Guarantor shall
have executed and delivered this Guaranty.


 


NOW, THEREFORE, in consideration of the
premises and in order to induce the Lenders to make Loans and to issue Letters
of Credit under the Credit Agreement and the Hedge Banks to enter into Secured
Hedge Agreements from time to time, each Guarantor, jointly and severally with
each other Guarantor, hereby agrees as follows:


 


Section 1.
Guaranty; Limitation Of Liability. (a) Each Guarantor hereby, jointly
and severally, absolutely, unconditionally and irrevocably guarantees the
punctual payment, whether at scheduled maturity or by acceleration, demand or
otherwise, of all Obligations of each Loan Party and each other Restricted
Subsidiary which is an obligor with respect to the Cash Management Obligations
(each, an “Obligor”) now or hereafter existing
(including, without limitation, any extensions, modifications, substitutions,
amendments or renewals of any or all of the foregoing Obligations), whether
direct or indirect, absolute or contingent, and whether for principal,
interest, premiums, fees, indemnities, contract causes of


 





















 


action, costs, expenses or otherwise (such Obligations being the “Guaranteed Obligations”), and agrees to pay any and all
expenses incurred by the Administrative Agent or any other Secured Party in
enforcing any rights under this Guaranty or any other Loan Document (including
reasonable fees, expenses and disbursements of any law firm or other external
counsel to the Administrative Agent). Without limiting the generality of the
foregoing, each Guarantor’s liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Obligor to any Secured Party under or in respect of the Finance Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other
Obligor.


 


(b)           Each
Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and
each other Secured Party, hereby confirms that it is the intention of all such
Persons that this Guaranty and the Obligations of each Guarantor hereunder not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law
(as hereinafter defined), the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the
extent applicable to this Guaranty and the Obligations of each Guarantor
hereunder. To effectuate the foregoing intention, the Administrative Agent, the
other Secured Parties and the Guarantors hereby irrevocably agree that the
Obligations of each Guarantor under this Guaranty at any time shall be limited
to the maximum amount as will result in the Obligations of such Guarantor under
this Guaranty not constituting a fraudulent transfer or conveyance. For
purposes hereof, “Bankruptcy Law” means
any proceeding of the type referred to in Section 8.01(f) of the Credit
Agreement or Title 11, U.S. Code, or any similar foreign, federal or state law
for the relief of debtors.


 


(c)           Each
Guarantor hereby unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to any Secured Party under this Guaranty
or the Parent Guaranty or the Company Guaranty or any other guaranty, such
Guarantor will contribute, to the maximum extent permitted by law, such amounts
to each other Guarantor and Holdings so as to maximize the aggregate amount
paid to the Secured Parties under or in respect of the Finance Documents.


 


Section 2.
Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
the Finance Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Secured Party with respect thereto. The Obligations of each
Guarantor under or in respect of this Guaranty are independent of the
Guaranteed Obligations or any other Obligations of any other Obligor under or
in respect of the Finance Documents, and a separate action or actions may be
brought and prosecuted against each Guarantor to enforce this Guaranty,
irrespective of whether any action is brought


 


2





















 


against the Company or any other Obligor or whether the Company or any
other Obligor is joined in any such action or actions.  The liability of each Guarantor under this
Guaranty shall be irrevocable, absolute and unconditional irrespective of, and
each Guarantor hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following:


 


(a)           any
lack of validity or enforceability of any Finance Document or any agreement or
instrument relating thereto;


 


(b)           any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations or any other Obligations of any other
Obligor under or in respect of the Finance Documents, or any other amendment or
waive of or any consent to departure from any Finance Document, including,
without limitation, any increase in the Guaranteed Obligations resulting from
the extension of additional credit to any Obligor or any of its Subsidiaries or
otherwise;


 


(c)           any
taking, exchange, release or non-perfection of any Collateral or any other
collateral, or any taking, release or amendment or waiver of, or consent to
departure from, any other guaranty, for all or any of the Guaranteed Obligations;


 


(d)           any
manner of application of Collateral or any other collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of sale or
other disposition of any Collateral or any other collateral for all or any of
the Guaranteed Obligations or any other Obligations of any Obligor under the
Finance Documents or any other assets of any Obligor or any of its
Subsidiaries;


 


(e)           any
change, restructuring or termination of the corporate structure or existence of
any Obligor or any of its Subsidiaries;


 


(f)            any
failure of any Secured Party to disclose to any Obligor any information
relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Obligor now or hereafter known
to such Secured Party (each Guarantor waiving any duty on the part of the
Secured Parties to disclose such information);


 


(g)           the
failure of any other Person to execute or deliver this Guaranty, any Guaranty
Supplement (as hereinafter defined) or any other guaranty or agreement or the
release or reduction of liability of any Guarantor or other guarantor or surety
with respect to the Guaranteed Obligations; or


 


(h)           any
other circumstance or any existence of or reliance on any representation by any
Secured Party that might otherwise constitute a defense available to, or a
discharge of, any Obligor or any other guarantor or surety.


 


3





















 


This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Secured Party or any other
Person upon the insolvency, bankruptcy or reorganization of the Company or any
other Obligor or otherwise, all as though such payment had not been made.


 


Section 3. Waivers and
Acknowledgments. (a)
Each Guarantor hereby unconditionally and irrevocably waives promptness,
diligence, notice of acceptance, presentment, demand for performance, notice of
nonperformance, default, acceleration, protest or dishonor and any other notice
with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that any Secured Party protect, secure, perfect or insure any Lien
or any property subject thereto or exhaust any right or take any action against
any Obligor or any other Person or any Collateral.


 


(b)           Each
Guarantor hereby unconditionally and irrevocably waives any right to revoke
this Guaranty and acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.


 


(c)           Each
Guarantor herby unconditionally and irrevocably waives (i) any defense arising
by reason of any claim or defense based upon an election of remedies by any
Secured Party that in any manner impairs, reduces, releases or otherwise
adversely affects the subrogation, reimbursement, exoneration, contribution or
indemnification rights of such Guarantor or other rights of such Guarantor to
proceed against any of the other Obligors, any other guarantor or any other
Person or any Collateral and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the Obligations of such Guarantor
hereunder.


 


(d)           Each
Guarantor acknowledges that the Administrative Agent may, in accordance with
the Loan Documents, without notice to or demand upon such Guarantor and without
affecting the liability of such Guarantor under this Guaranty, foreclose under
any mortgage by nonjudicial sale, and each Guarantor hereby waives any defense
to the recovery by the Administrative Agent and the other Secured Parties
against such Guarantor of any deficiency after such nonjudicial sale and any
defense or benefits that may be afforded by applicable law.


 


(e)           Each
Guarantor hereby unconditionally and irrevocably waives any duty on the part of
any Secured Party to disclose to such Guarantor any matter, fact or thing
relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Obligor or any of its
Subsidiaries now or hereafter known by such Secured Party.


 


4





















 


(f)            Each
Guarantor acknowledges that it will receive substantial direct and indirect
benefits from the financing arrangements contemplated by the Finance Documents
and that the waivers set forth in Section 2 and this Section 3 are
knowingly made in contemplation of such benefits.


 


Section 4.
Subrogation. Each Guarantor hereby unconditionally and irrevocably
agrees not to exercise any rights that it may now have or hereafter acquire
against the Company, any other Obligor or any other insider guarantor that
arise from the existence, payment, performance or enforcement of such Guarantor’s
Obligations under or in respect of this Guaranty or any other Finance Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in
any claim or remedy of any Secured Party against the Company, any other Obligor
or any other insider guarantor or any Collateral, whether or not such claim,
remedy or right arises in equity or under contract, statute or common law,
including, without limitation, the right to take or receive from the Company,
any other Obligor or any other insider guarantor, directly or indirectly, in
cash or other property or by set-off or in any other manner, payment or
security on account of such claim, remedy or right, unless and until all of the
Guaranteed Obligations and all other amounts payable under this Guaranty shall
have been paid in full in cash, all Letters of Credit shall have expired or
been terminated and the Commitments shall have expired or been terminated. If
any amount shall be paid to any Guarantor in violation of the immediately
preceding sentence at any time prior to the latest of (a) the payment in full
in cash of the Guaranteed Obligations and all other amounts payable under this
Guaranty, (b) the Maturity Date and (c) the latest date of expiration or
termination of all Letters of Credit, such amount shall be received and held in
trust for the benefit of the Secured Parties, shall be segregated from other
property and funds of such Guarantor and shall forthwith be paid or delivered
to the Administrative Agent in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of the Finance Documents, or to be
held as Collateral for any Guaranteed Obligations or other amounts payable
under this Guaranty thereafter arising. If (i) all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash, (ii) the Maturity Date shall have occurred and (iii) all
Letters of Credit shall have expired or been terminated, the Secured Parties
will, at such Guarantor’s request and expense, execute and deliver to such
Guarantor appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to such Guarantor
of an interest in the Guaranteed Obligations resulting from such payment made
by such Guarantor pursuant to this Guaranty.


 


Section 5. Payments Free and Clear of
Taxes, Etc. Any
and all payments by any Guarantor under this Guaranty or any other Loan
Document shall be made,


 


5





















 


in accordance with the terms of the Credit Agreement, free and clear of
and without deduction for any and all present or future Taxes.


 


Section 6.
Covenants. Each Guarantor covenants and agrees that, so long as any
part of the Guaranteed Obligations shall remain unpaid, any Letter of Credit
shall be outstanding or any Lender shall have any Commitment, such Guarantor
will perform and observe, and cause each of its Subsidiaries to perform and
observe, all of the terms, covenants and agreements set forth in the Loan
Documents on its or their part to be performed or observed or that the Company
has agreed to cause such Guarantor or such Subsidiaries to perform or observe.


 


Section 7. Amendments, Release of
Guarantors, Etc. No
amendment or waiver of any provision of this Guaranty and no consent to any
departure by any Guarantor therefrom shall in any event be effective unless the
same shall be in writing and signed by the Administrative Agent and the
Guarantors (with the consent of the requisite number of Lenders specified in
the Credit Agreement) and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given. A
Guarantor shall automatically be released from this Guaranty and its
obligations hereunder upon consummation of any transaction or designation
permitted by the Credit Agreement as a result of which such Guarantor ceases to
be a Restricted Subsidiary; provided that
no such release shall occur if such Guarantor is a guarantor in respect of any
Junior Financing. The Administrative Agent will, at such Guarantor’s expense,
execute and deliver to such Guarantor such documents as such Guarantor shall
reasonably request to evidence the release of such Guarantor from its Guarantee
hereunder pursuant to this Section 7; provided that
such Guarantor shall have delivered to the Administrative Agent a written
request therefor and a certificate of such Guarantor to the effect that the
transaction is in compliance with the Loan Documents. The Administrative Agent
shall be authorized to rely on any such certificate without independent
investigation.


 


Section 8.
Guaranty Supplements. Upon the execution and delivery by any Person of a
guaranty supplement in substantially the form of Exhibit A hereto (each, a “Guaranty Supplement”), (a) such Person shall be referred to
as an “Additional Guarantor” and shall become
and be a Guarantor hereunder, and each reference in this Guaranty to a “Guarantor” shall also mean and be a reference to such
Additional Guarantor, and each reference in any other Loan Document to a “Subsidiary Guarantor” shall also mean and be a reference to
such Additional Guarantor, and (b) each reference herein to “this Guaranty”, “hereunder”, “hereof” or words of like
import referring to this Guaranty, and each reference in any other Loan
Document to the “Subsidiary Guaranty”, “thereunder”, “thereof”
or words of like import referring to this Guaranty, shall mean and
be a reference to this Guaranty as supplemented by such Guaranty Supplement.


 


6





















 


Section 9.
Notices, Etc. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopy or telex
communication or facsimile transmission) and mailed, telegraphed, telecopied,
telexed, faxed or delivered to it, if to any Guarantor, addressed to it in care
of the Company at the Company’s address specified in Section 10.02 of the
Credit Agreement, if to any Agent or any Lender, at its address specified in Section 10.02
of the Credit Agreement, if to any Hedge Bank, at its address specified in the
Secured Hedge Agreement to which it is a party, or, as to any party, at such
other address as shall be designated by such party in a written notice to each
other party. All such notices and other communications shall be deemed to be
given or made at such time as shall be set forth in Section 10.02 of the
Credit Agreement. Delivery by telecopier of an executed counterpart of a
signature page to any amendment or waiver of any provision of this Guaranty or
of any Guaranty Supplement to be executed and delivered hereunder shall be
effective as delivery of an original executed counterpart thereof.


 


Section 10.
No Waiver; Remedies. No failure on the part of any Secured Party to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.


 


Section 11.
Right of Set-off. Upon (a) the occurrence and during the continuance of any
Event of Default and (b) the making of the request or the granting of the
consent specified by Section 8.02 of the Credit Agreement to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of said Section 8.02, the Administrative Agent and, after
obtaining the prior written consent of the Administrative Agent, each other
Agent and each Lender and each of their respective Affiliates 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 such Agent, such Lender, or such Affiliate to or for the credit
or the account of any Guarantor against any and all of the Obligations of such
Guarantor now or hereafter existing under the Loan Documents, irrespective of
whether such Agent or such Lender shall have made any demand under this
Guaranty or any other Loan Document and although such Obligations may be
unmatured. Each Agent and each Lender agrees promptly to notify such 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 each Agent and each Lender and their respective
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Agent, such
Lender and their respective Affiliates may have.


 


7





















 


Section 12. Continuing Guaranty;
Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a)
remain in full force and effect until the latest of (i) the payment in full in
cash of the Guaranteed Obligations (other than with respect to Secured Hedge
Agreements and Cash Management Obligations which are not yet due and payable) and
all other amounts payable under this Guaranty, (ii) the Maturity Date and (iii)
the latest date of expiration or termination of all Letters of Credit, (b) be
binding upon each Guarantor, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Secured Parties and their permitted
successors, transferees and assigns. Without limiting the generality of clause
(c) of the immediately preceding sentence, any Secured Party may assign or
otherwise transfer all or any portion of its rights and obligations under the
Credit Agreement (including, without limitation, all or any portion of its
Commitments, the Loans owing to it and the Note or Notes held by it) to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Secured Party herein or otherwise,
in each case as and to the extent provided in Section 10.07 of the Credit
Agreement. Except as expressly provided in the Credit Agreement, no Guarantor
shall have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Secured Parties.


 


Section 13. Execution in Counterparts. This Guaranty and each amendment, waiver and consent with
respect hereto may be executed in any number of counterparts and by different
parties thereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute
one and the same agreement. Delivery of an executed counterpart of a signature
page to this Guaranty by telecopier shall be effective as delivery of an
original executed counterpart of this Guaranty.


 


Section 14. Governing Law;
Jurisdiction; Waiver of
Jury Trial, Etc. (a) This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York.


 


(b)           ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND
BY EXECUTION AND DELIVERY OF THIS GUARANTY, EACH GUARANTOR CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH GUARANTOR IRREVOCABLY WAIVES 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 ACTION OR PROCEEDING
IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED
THERETO.


 


8





















 


(c)           EACH
GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY CLAIM,
DEMAND, ACTION, OR CAUSE OF ACTION (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED THERETO.


 


9





















 


IN WITNESS
WHEREOF, each Guarantor has caused this Guaranty to be duly executed and
delivered by its officer thereunto duly authorized as of the date first above
written.


 


 


	
   

  	
  [SUBSIDIARY
  GUARANTORS]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul
  Robinson

  
	
   

  	
   

  	
  Title: Vice
  President

  



 





















 


Exhibit A


To
The


Subsidiary
Guaranty


 


FORM
OF SUBSIDIARY GUARANTY SUPPLEMENT


 


                       ,
          


 


Bank of America, N.A., as Administrative Agent


[Address of Administrative Agent]


 


Attention:                     


 


Credit Agreement dated as of February 27,
2004 among

WMG Acquisition Corp., a Delaware corporation (the “Company”),

the Overseas Borrowers party thereto,

WMG Holdings Corp.,

the Lenders party thereto,

Bank of America, N.A.,

as the L/C Issuer, Swing Line Lender and Administrative Agent,

and the other Agents party thereto


 


Ladies and Gentlemen:


 


Reference is made to the above-captioned
Credit Agreement and to the Subsidiary Guaranty referred to therein (such
Subsidiary Guaranty, as in effect on the date hereof and as it may hereafter be
amended, supplemented or otherwise modified from time to time, together with
this Subsidiary Guaranty Supplement (the “Guaranty
Supplement”), being
the “Subsidiary Guaranty”). The capitalized terms defined in
the Subsidiary Guaranty or in the Credit Agreement and not otherwise defined
herein are used herein as therein defined.


 


Section 1. Guaranty; Limitation of Liability. (a) The undersigned
hereby, jointly and severally with the other Guarantors absolutely,
unconditionally and irrevocably guarantees the punctual payment, whether at
scheduled maturity or by acceleration, demand or otherwise, of all Obligations
of each other Obligor now or hereafter existing under or in respect of the
Finance Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premium, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such Obligations being the “Guaranteed Obligations”), and agrees to pay any and all
expenses (including, without limitation, fees and expenses of counsel) incurred
by the Administrative Agent or any other Secured Party in enforcing any rights
under this Guaranty Supplement, the Subsidiary Guaranty or any other Loan
Document.


 





















 


Without limiting the generality of the foregoing, the undersigned’s
liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by any other Obligor to any Secured Party under
or in respect of the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Obligor.


 


(b)           The
undersigned, and by its acceptance of this Guaranty Supplement, the
Administrative Agent and each other Secured Party, hereby confirms that it is
the intention of all such Persons that this Guaranty Supplement, the Subsidiary
Guaranty and the Obligations of the undersigned hereunder and thereunder not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar foreign, federal or state law to the extent applicable to this
Guaranty Supplement, the Subsidiary Guaranty and the Obligations of the
undersigned hereunder and thereunder. To effectuate the foregoing intention,
the Administrative Agent, the other Secured Parties and the undersigned hereby
irrevocably agree that the Obligations of the undersigned under this Guaranty
Supplement and the Subsidiary Guaranty at any time shall be limited to the
maximum amount as will result in the Obligations of the undersigned under this
Guaranty Supplement and the Subsidiary Guaranty not constituting a fraudulent
transfer or conveyance.


 


(c)           The
undersigned hereby unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to any Secured Party under this Guaranty
Supplement, the Subsidiary Guaranty, the Parent Guaranty, the Company Guaranty
or any other guaranty, the undersigned will contribute, to the maximum extent
permitted by applicable law, such amounts to each other Guarantor and each
other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under or in respect of the Loan Documents.


 


Section 2. Obligations Under the Guaranty. The undersigned hereby
agrees, as of the date first above written, to be bound as a Guarantor by all
of the terms and conditions of the Subsidiary Guaranty to the same extent as
each of the other Guarantors thereunder. The undersigned further agrees, as of
the date first above written, that each reference in the Subsidiary Guaranty to
an “Additional Guarantor” or a “Guarantor” shall also mean and be a
reference to the undersigned, and each reference in any other Loan Document to
a “Subsidiary Guarantor”, a “Loan Party” or an “Obligor” shall also mean and be a
reference to the undersigned.


 


Section 3. Delivery by Telecopier. Delivery of an executed counterpart
of a signature page to this Guaranty Supplement by telecopier shall be
effective as delivery of an original executed counterpart of this Guaranty
Supplement.


 


2





















 


Section 4. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a) This
Guaranty Supplement shall be governed by, and construed in accordance with, the
laws of the State of New York.


 


(b)           ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND
BY EXECUTION AND DELIVERY OF THIS GUARANTY SUPPLEMENT, EACH GUARANTOR CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH GUARANTOR IRREVOCABLY WAIVES 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 ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.


 


(c)           THE
UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED THERETO.


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF ADDITIONAL GUARANTOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


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