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Exhibit (d)(6)
GUARANTY
THIS GUARANTY, dated as of October 25, 2000, is made and entered into by
ValueAct Capital Partners, L.P., a Delaware limited partnership ("Guarantor"),
and is delivered to and is for the benefit of KENETECH Corporation., a Delaware
corporation (the "Company").
RECITALS
WHEREAS, Guarantor desires to acquire, directly or indirectly, all of the
outstanding equity interests of the Company;
WHEREAS, in connection with the acquisition of the Company's equity
interests, Guarantor has established KC Holding corporation, a Delaware
corporation ("KC"), and KC Merger Corp., a Delaware corporation and a direct
wholly-owned subsidiary of KC ("Sub"), as direct or indirect subsidiaries of
Guarantor; and
WHEREAS, in order to induce the Company to enter into that certain
Agreement and Plan of Merger, dated as of the date hereof, among KC, Sub and the
Company (such Agreement and Plan of Merger, as the same may be amended from time
to time, the "Merger Agreement"), pursuant to which, and subject to the terms
and conditions of which, the Company has agreed to be merged with Sub, and in
consideration thereof, Guarantor is delivering this Guaranty to the Company;
AGREEMENT
NOW, THEREFOR, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Guarantor agrees as follows:
1. Guaranty.
a. Guaranty. Guarantor hereby guarantees, as a primary obligor, to the
Company and the successors, transferees and assigns of the Company, the
performance by each of KC and Sub, in accordance with, and subject to the
conditions set forth in the Merger Agreement, of its covenants, duties and
obligations under the Merger Agreement, including without limitation, the
payment of any and all payment obligations of KC and Sub under the Merger
Agreement (collectively, the "Obligations");
b. Waivers. To the fullest extent permitted by applicable law, the
Guarantor waives:
(i) any defense based upon any legal disability of KC or Sub or any
discharge or limitation on the liability of KC or Sub to the
Company, whether consensual or arising by operation of law or
bankruptcy, reorganization, receivership, insolvency or debtor-
relief proceeding, or from any other cause;
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(ii) presentments, demands for performance, protests and notices,
including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor and notices of
acceptance; and
(iii) any right to require the Company to proceed against KC or Sub
or any other party or to pursue any other remedy in the
Company's power whatsoever.
2. Representations and Warranties.
Guarantor hereby represents and warrants to the Company as follows:
a. Organization; Authority. Guarantor is a limited partnership duly
formed, validly existing and in good standing under the laws of Delaware.
Guarantor has the requisite partnership power and authority to execute and
deliver this Guaranty and to perform its obligations hereunder. The execution,
delivery and performance by Guarantor of this Guaranty have been duly authorized
by all necessary action on the part of Guarantor. This Guaranty has been duly
executed and delivered by Guarantor and constitutes the valid and binding
obligation of Guarantor, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to creditors' rights generally and to general
principles of equity.
b. Litigation.
There is no (i) claim, action, suit or proceeding pending or, to the best
knowledge of Guarantor, threatened against Guarantor before any court,
arbitrator or governmental authority, or (ii) outstanding judgment, order, writ,
injunction or decree of any court, arbitrator or governmental authority in a
proceeding to which Guarantor or any of its assets is subject, except such as
would not materially impair the ability of Guarantor to perform its obligations
hereunder.
3. Termination.
This Guaranty shall terminate and be of no further force and effect upon
the earlier of (i) the termination of the Merger Agreement in accordance with
its terms or (ii) the payment by KC and Sub of all amounts payable pursuant to
Sections 1.1(d) and 2.6(b) of the Merger Agreement; provided, that nothing in
this Section 3 shall relieve the Guarantor from any liability for any payments
with respect to a breach of a representation or warranty by KC or Sub contained
in the Merger Agreement, or the breach by KC or Sub, which liability shall
survive any termination of this Guaranty, of any covenant contained in the
Merger Agreement or for fraud on the part of KC or Sub.
4. Certain Authorizations.
To the fullest extent permitted by applicable law, the Company may at any
time and from time to time, without the consent of or notice to Guarantor,
without incurring responsibility to
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Guarantor, and without impairing or releasing the obligations of Guarantor
hereunder, upon or without any terms or conditions and in whole or in part:
(i) exercise or refrain from exercising any rights against KC and Sub;
(ii) subordinate, release, settle or compromise any of the
Obligations; and
(iii) consent to or waive any breach of, or any act, omission or
default under, the Merger Agreement, or otherwise agree with KC and Sub to
amend, modify or supplement the Merger Agreement.
5. Miscellaneous.
a. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given when delivered personally, one day after being
delivered to an overnight courier or when telecopied (with a confirmatory copy
sent by overnight courier) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
if to Guarantor, to:
ValueAct Capital Partners, L.P.
One Maritime Plaza
Suite 1400
San Francisco, CA 94111
Attention: Jeff Ubben
Facsimile No.: 415-362-5727
with copies to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
Attention: Dennis M. Myers
Facsimile No.: 312-861-2200
(b) if to the Company, to:
KENETECH Corporation
500 Sansome Street
San Francisco, CA 94111
Attention: Dianne P. Urhausen
Facsimile No.: 415-984-8191
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with a copy to:
Morrison & Foerster LLP
425 Market Street
San Francisco, California 94105-2482
Attention: Michael O'Bryan
Facsimile No.: 415-268-7522
and a copy to:
Potter Anderson & Corroon, LLP
Hercules Plaza
P.O. Box 951
Wilmington, DE 19899
Attention: Mark A. Morton
Facsimile No.: 302-658-1192
b. Assignment; Successors and Assigns. Guarantor shall not assign,
transfer, delegate or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any right or obligation under this
Guaranty. Any purported assignment, transfer, or delegation in violation of this
Section shall be null and void. Subject to the foregoing limits on assignment
and delegation, this Guaranty shall be binding upon Guarantor and its successors
and assigns. The Company shall not assign or transfer this Guaranty without the
written consent of the Guarantor.
c. Governing Law. The validity, interpretation, enforceability, and
performance of this Guaranty shall be governed by and construed in accordance
with the law of the State of Delaware.
d. Severability. If any provision of this Guaranty, or the application
thereof to any person, place or circumstances, shall be held by a court of
competent jurisdiction to be invalid, unenforceable, or void, the remainder of
this Guaranty and such provision as applied to other persons, places, and
circumstances shall remain in full force and effect.
e. Entire Agreement. The parties intend that the terms of this
Guaranty, and the other documents referred to herein, shall be the final
expression of their agreement with respect to the subject matter hereof and may
not be contradicted by evidence of any prior or contemporaneous agreement. The
parties further intend that this Guaranty shall supersede all oral discussions
and prior writings between the parties in respect of the subject matter hereof.
f. Waiver and Compliance. Any failure of Guarantor to comply with any
provision of this Guaranty may be expressly waived in writing by the Company,
but such waiver or failure to insist upon strict compliance with such provision
shall not operate as a waiver of, or an estoppel with respect to, any subsequent
or other failure. No failure to exercise and no delay in exercising any right,
remedy, or power hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, or power hereunder preclude any
other or
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further exercise thereof or the exercise of any other right, remedy, or power
provided herein or by law or in equity. The waiver by any party of the time for
performance of any act or condition hereunder does not constitute a waiver of
the act or condition itself.
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IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly
executed on its behalf as of the date first above written.
VALUEACT CAPITAL PARTNERS, L.P.
By: VA Partners, L.L.C.
Its: General Partner
By: /s/ Jeffrey W. Ubben
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Title: Managing Member
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Accepted and Agreed to:
KENETECH CORPORATION
By: /s/ Diane P. Urhausen
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Title: Vice President and Secretary
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