GUARANTY
This GUARANTY, dated as of July 2, 1998 (as amended, modified,
or supplemented from time to time, this "GUARANTY") is made by SNEAKER
GUARANTEE LLC, a Delaware limited liability company ("GUARANTOR"), in favor
of BANQUE NATIONALE DE PARIS ("BNP"), for itself and as agent (the "AGENT")
for itself and for Xxxxxxx Xxxxx Senior Floating Rate Fund, Inc., Xxxxxxx
Xxxxx Prime Rate Portfolio and Xxxxxxx Xxxxx Debt Strategies Portfolio
(together with BNP, the "SECURED LENDERS").
PRELIMINARY STATEMENTS.
(1) Sneaker Stadium, Inc., a Delaware corporation (the
"Borrower") has entered into a Credit Agreement dated as of January 17,
1997 (said Agreement, as amended, supplemented or otherwise modified, being
the "CREDIT AGREEMENT") with BNP, for itself and as agent for the Secured
Lenders. Each capitalized term used but not defined herein shall have the
meaning given to it in the Credit Agreement.
(2) As of the date hereof and immediately before giving effect
to this Guaranty, there is $30,613,326.68 outstanding under the Credit
Agreement and the other Loan Documents, including $30 million in
outstanding principal, $507,743.06 in accrued and unpaid interest, and
$105,583.62 in fees and expenses including fees and disbursements of
counsel (collectively, the "EXISTING LENDER INDEBTEDNESS").
(3) The Borrower and Just For Feet, Inc., a Delaware
corporation ("JFF"), have entered into an Agreement and Plan of Merger,
dated as of July 2, 1998 (the "Merger Agreement"), pursuant to which a
wholly-owned subsidiary of JFF will merge with and into the Borrower, with
the Borrower being the surviving entity.
(4) JFF and BNP, for itself and as agent for the Secured
Lenders, have entered into the Contingent Payment Agreement, dated as of
July 2, 1998 (the "CONTINGENT PAYMENT AGREEMENT"), pursuant to which
contingent payments may be made as set forth in the Debt Restructuring
Agreement (as defined below) to the Agent, on behalf of the Secured Lenders
and Xxxxxx X. Xxx Company as Representative for the Subordinated Lenders
listed on Schedule I to the Contingent Payment Agreement.
(5) In connection with the transactions contemplated by the
Merger Agreement, the Borrower, the Guarantor, the Agent and the Secured
Lenders have executed the Debt Restructuring Agreement of even date
herewith (the "DEBT RESTRUCTURING AGREEMENT"), pursuant to which the
Secured Lenders have agreed to accept in full satisfaction and discharge of
the Existing Lender Indebtedness:
(a) cash in an amount on the closing of the Merger Agreement equal
to accrued and unpaid interest, fees, and expenses (including
without limitation the reasonable fees and disbursements of
counsel to the Agent and each of the Secured Lenders) in an
amount equal to $613,326.68 (the "BRINGDOWN Amount"),
(b) cash applied to the repayment of the outstanding principal
balance of the Existing Lender Indebtedness in an amount equal
to $6,269,589.53 (the "PRINCIPAL PAYMENT"),
(c) payments, if any, under the Contingent Payment Agreement as set
forth therein and in the Debt Restructuring Agreement,
(d) this non-recourse Guaranty from Guarantor of payment to the Agent
under the Debt Restructuring Agreement on or before July 30,
2002, of cash in an amount equal to the excess of (x)
$20,000,000 over (y) the Principal Amount (the "MINIMUM PAYMENT
AMOUNT"), whether or not the Contingent Payment Agreement
entitles the Agent to receive such amount, and
(e) a pledge of certain common stock of JFF acquired by Guarantor and
Guarantor's rights under a Registration Rights Agreement (the
"REGISTRATION RIGHTS AGREEMENT") pursuant to a Pledge and
Security Agreement securing the Guaranty (the "PLEDGE
AGREEMENT," and together with the Guaranty, the Debt
Restructuring Agreement, the Contingent Payment Agreement and
the Registration Rights Agreement, the "TRANSACTION
DOCUMENTS").
(6) It is a condition precedent to the restructuring of the
Existing Lender Indebtedness and the consummation of the Debt Restructuring
Agreement that, inter alia, the Guarantor shall have (i) entered into the
Pledge Agreement of even date and delivered the Pledged Stock (as defined
in the Pledge Agreement) and (ii) delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Secured Lenders to restructure the Existing Lender
Indebtedness and enter into the Transaction Documents, Guarantor hereby
makes the following representations and warranties to the Agent on behalf
of the Secured Lenders and hereby covenants and agrees with the Agent for
the rateable benefit of the Secured Lenders as follows:
Section 1. Guaranty. The Guarantor hereby unconditionally and
irrevocably guarantees the full and prompt payment on the Payment Date (as
hereinafter defined) to the Agent on behalf of each Secured Lender of, and
shall in any event on such date pay:
(a) the Minimum Payment Amount to the extent not theretofore
received by the Agent, whether or not the Agent is entitled to
receive such amount, in whole or in part, under the Contingent
Payment Agreement, and
(b) any and all claims, liabilities, damages, expenses, costs
(including without limitation fees and disbursements of counsel
to the Agent and each of the Secured Lenders) or other
obligations incurred by the Agent or any Secured Lender arising
out of or in connection with (i) the enforcement of any
Transaction Document (including in the context of any dispute
with respect thereto), or (ii) the breach of any
representation, warranty or other provision of any Transaction
Document (collectively, "LIABILITIES"), provided, however, that
unless such enforcement is made against or such breach is by
the Guarantor or THLC, Liabilities shall only include 50% of
such claims, liabilities, damages, expenses, costs or other
obligations
((a) and (b) collectively, the "GUARANTEED OBLIGATIONS"). "PAYMENT DATE"
shall mean, with respect to any Guaranteed Obligation, the first to occur
of (1) July 30, 2002, (2) the date on which any Guaranteed Obligation is
due and payable (which, with respect to any Guaranteed Obligation other
than the Minimum Payment Amount, shall be the date on which demand for
payment is made), and (3) the date of the occurrence of any Event of
Default (as defined below).
Section 2. Non-Recourse. Notwithstanding any other provision of
this Agreement, all Guaranteed Obligations and any amounts payable under
Section 15 shall be payable out of, and the Agent (and the Secured Lenders
through the Agent) shall have recourse only against and limited to, the
Collateral (as defined in the Pledge Agreement).
Section 3. Events of Default. Each of the following shall
constitute an "EVENT OF DEFAULT" hereunder:
(a) Failure of the Agent to have received the Minimum Payment
Amount on or before July 30, 2002 (whether or not the Agent is
entitled to receive such amount, in whole or in part, under the
Contingent Payment Agreement);
(b) Guarantor shall have breached or defaulted under any provision
of this Guaranty or any Transaction Document to which Guarantor
is a party and shall have failed to remedy the same within 30
days of receiving notice from Agent of such breach;
(c) Guarantor shall (i) apply for or consent to the appointment of a
receiver, trustee or liquidator of itself or any of its
property, (ii) admit in writing its inability to pay its debts
as they mature, (iii) make a general assignment for the benefit
of creditors, (iv) be adjudicated a bankrupt or insolvent, (v)
file a voluntary petition in bankruptcy or a petition or an
answer seeking or consenting to reorganization or an
arrangement with creditors or to take advantage of any
bankruptcy, reorganization, insolvency, readjustment of debt,
dissolution or liquidation law or statute under the Federal
Bankruptcy Code, 11 X.X.X.xx.xx. 101 et seq; (the "BANKRUPTCY
CODE"), or an answer admitting the -- --- material allegations
of a petition filed against it in any proceeding under any such
law, or take corporate action for the purposes of effecting any
of the foregoing, or (vi) by any act indicate its consent to,
approval of or acquiescence in any order, judgment or decree by
any court of competent jurisdiction or any governmental
authority enjoining or otherwise prohibiting the operation of a
material portion of its business or the use or disposition of a
material portion of its assets; or
(d) (i) An order for relief shall be entered in any involuntary
case brought against Guarantor under the Bankruptcy Code, (ii)
any such case shall be commenced against it and shall not be
dismissed within thirty (30) days after the filing of the
petition, or (iii) an order, judgment or decree under any other
law is entered by any court of competent jurisdiction or by any
other governmental authority on the application of a
governmental authority or of a person other than Guarantor (x)
adjudicating Guarantor bankrupt or insolvent, (y) appointing a
receiver, trustee or liquidator of Guarantor, or of a material
portion of its assets, or (z) enjoining, prohibiting or
otherwise limiting the operation of a material portion of
Guarantor's business or the use or disposition of a material
portion of its assets, and such order, judgment or decree
continues unstayed and in effect for a period of thirty (30)
days from the date entered; or
(e) Any representation or warranty made by the Guarantor in this
Guaranty or any other Transaction Document or in any statement,
schedule, certificate or any other document furnished pursuant
to any Transaction Document, shall prove to have been false or
misleading when made (or, if applicable, when reaffirmed) in
any material respect; or
(f) The entry of a final judgment for the payment of money or
otherwise that would have a material adverse affect on the
financial condition of Guarantor; or the attachment or
garnishment of all or substantially all of the property, goods
or credits of, Guarantor which remains unpaid, unstayed,
undismissed or unbonded for a period of thirty (30) days; or if
any foreclosure is instituted (by judicial proceedings, by
publication of notice pursuant to a power of sale or otherwise)
against a material portion of Guarantor's property under any
mortgage, deed of trust or security agreement granted by
Guarantor and is not dismissed or terminated for a period of
fifteen (15) days; or
(g) If Guarantor fails to promptly notify the Agent, in writing, and
in any event within ten (10) days, of the occurrence of any
event or condition of which Guarantor is aware which
constitutes an Event of Default, or which, with the giving of
notice or passage of time or both, would constitute an Event of
Default, and together with such notice, fails to furnish a
written statement to the Agent setting forth the details of any
action Guarantor proposes to take with respect thereto.
Section 4. Guaranty Absolute. The Guarantor, unconditionally
and irrevocably, guarantees that each Guaranteed Obligation will be paid
when due on its respective Payment Date, regardless of any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of
such Guaranteed Obligations or the rights of the Agent or any other Secured
Lender with respect thereto. The obligations of the Guarantor under this
Guaranty are independent of the Guaranteed Obligations, and a separate
action or actions may be brought and prosecuted against the Guarantor to
enforce this Guaranty, irrespective of whether any action is brought
against any other party or whether any other party or any other Secured
Lender is joined in any such action or actions. The liability of the
Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and the Guarantor hereby irrevocably waives
any defenses it may now or hereafter have in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Transaction
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 any Guaranteed Obligation, the release of any
obligor with respect thereto, or any other release, amendment
or waiver of or any consent to departure from any Transaction
Document;
(c) any taking, exchange, release or non-perfection of any
"Collateral" (as defined in the Pledge Agreement), or any
taking, release or amendment or waiver of, or consent to
departure from, any other guaranty, for any Guaranteed
Obligation;
(d) any manner of sale or application of Collateral, or proceeds
thereof, to the Guaranteed Obligations or any lack of notice in
respect thereof;
(e) any change, restructuring or termination of the corporate
structure or existence of Agent or any Secured Lender; or
(f) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Agent or any other Secured Lender that
might otherwise constitute a defense available to, or a
discharge of, the Borrower, the Guarantor or any other
guarantor or surety.
Without limiting the generality of the foregoing, Guaranteed Obligations
shall include, and the Guarantor shall be liable for, any of the foregoing
that would be owed under any Transaction Document but for the fact that it
is unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the payor. This Guaranty
shall continue to be effective or be reinstated, as the case may be, if at
any time any payment of the Guaranteed Obligations is rescinded or must
otherwise be returned by the Agent, by any Secured Lender or any other
person or entity upon the insolvency, bankruptcy or reorganization of JFF
or the Borrower or any other Secured Lender or otherwise, all as though
such payment had not been made. This Guaranty shall constitute a guaranty of
payment and performance, and not of collection.
Section 5. Security. This Guaranty is secured by the Pledge
Agreement and the liens in and to the Collateral granted to the Agent for the
rateable benefit of the Secured Lenders thereunder.
Section 6. Waivers and Acknowledgments.
(a) The Guarantor hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to the Guaranteed
Obligations and this Guaranty and any requirement that the
Agent or any other Secured Lender protect, secure, perfect or
insure any lien or any property subject thereto or exhaust any
right or take any action against the Borrower or any other
Person or any Collateral.
(b) The Guarantor hereby waives any right to revoke this Guaranty,
and acknowledges that this Guaranty is continuing in nature and
applies to any Guaranteed Obligations, whether existing now or
in the future.
(c) The Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements
contemplated by the Transaction Documents and that the waivers
set forth in this Section 6 are knowingly made in contemplation
of such benefits.
Section 7. Subrogation. The Guarantor will not exercise any
rights that it may now or hereafter acquire against JFF, the Borrower or
any other obligor in respect of any Guaranteed Obligations that arise from
the existence, payment, performance or enforcement of the Guarantor's
obligations under this Guaranty (whether contractual, under Section 509 of
the Bankruptcy Code, as now or hereafter in effect, or any successor
thereto, or otherwise) or any other Transaction Document, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim
or remedy of the Agent or any other Secured Lender against JFF, the
Borrower 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 JFF, the Borrower 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 the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash. If any amount shall be paid
to the Guarantor in violation of the preceding sentence at any time prior
to the indefeasible and irrevocable payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty,
such amount shall be held in trust for the benefit of the Agent on behalf
of the Secured Lenders and shall forthwith be paid to the Agent 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 Transaction Documents, or to be held as Collateral
for any Guaranteed Obligations or other amounts payable under this Guaranty
thereafter arising. If (i) the Guarantor shall make payment to the Agent or
any other Secured Lender of all or any part of the Guaranteed Obligations,
and (ii) the Guaranteed Obligations and all other amounts payable under
this Guaranty shall be paid in full in cash, the Agent on behalf of the
Secured Lenders will, at the Guarantor's request and expense, execute and
deliver to the Guarantor appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer by
subrogation to the Guarantor of an interest in the Guaranteed Obligations
resulting from such payment by the Guarantor.
Section 8. Subordination. Any and all rights and claims of the
Guarantor against JFF or the Borrower or any of its property, arising by
reason of any payment by the Guarantor to the Agent pursuant to the
provisions of this Guaranty shall be subordinate and subject in right of
payment to the prior payment and satisfaction of the Guaranteed Obligations
and all other amounts payable under this Guaranty. Any debt of JFF or the
Borrower, now or hereafter held by the Guarantor, is hereby subordinated to
all indebtedness and obligations guaranteed hereby. Upon the occurrence and
during the continuance of an Event of Default, any such indebtedness of JFF
or the Borrower to the Guarantor shall, if the Agent so requests, be
collected, enforced, and received by the Guarantor in trust for the Agent
and held as security for the payment of the Guaranteed Obligations to the
Agent, but without reducing or affecting in any manner the liability of the
Guarantor hereunder.
Section 9. [omitted]
Section 10. Representations and Warranties. The Guarantor
hereby represents and warrants as follows:
(a) The Guarantor (i) is a limited liability company duly organized,
validly existing and in good standing under the laws of Delaware,
(ii) is duly qualified and in good standing as a foreign limited
liability company in each other jurisdiction in which it owns
or leases property or assets or in which the conduct of its
business requires it to so qualify or be licensed and (iii) has
all requisite limited liability company power and authority
(including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its
properties and assets and to carry on its business as now
conducted and as proposed to be conducted.
(b) The Guarantor is a special purpose limited liability company,
formed for the sole and limited purpose of owning the
Collateral and executing this Guaranty, and is without power or
authority under its certificate or operating agreement to incur
or undertake any actions other than the execution of the Common
Stock and Warrant Purchase Agreement dated July 2, 1998 between
JFF, SGL, THLC, and Xxxxxx Xxxxxxxxxx, the Debt Restructuring
Agreement, the Pledge Agreement, this Guaranty and the
Registration Rights Agreement and to consummate the
transactions contemplated hereby or thereby.
(c) The execution, delivery and performance by the Guarantor of this
Guaranty and each other Transaction Document to which it is a
party, and the consummation of the transactions contemplated
hereby and thereby, are within the Guarantor's powers, have
been duly authorized by all necessary limited liability company
action and do not (i) contravene the Guarantor's certificate of
formation, (ii) violate any law (including, without limitation,
the Securities Exchange Act of 1934 and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized
Crime Control Act of 1970), rule, regulation (including,
without limitation, Regulation X of the Board of Governors of
the Federal Reserve System), order, writ, judgment, injunction,
decree, determination or award, (iii) conflict with or result
in the breach of, or constitute a default under, any contract,
loan agreement, indenture, mortgage, deed of trust, lease or
other instrument binding on or affecting the Guarantor or any
of its properties or assets or (iv) except for the Liens
created under the Transaction Documents, result in or require
the creation or imposition of any Lien upon or with respect to
any of the properties or assets of the Guarantor. The Guarantor
is not in violation of any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or
in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument.
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body
or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by the Guarantor
of this Guaranty and each other Transaction Document to which
it is a party, or for the consummation of the transactions
contemplated hereby and thereby, (ii) the grant by the
Guarantor of the Liens granted by it pursuant to the Pledge
Agreement, (iii) the perfection or maintenance of the Liens
created by the Pledge Agreement (including the first priority
nature thereof) or (iv) the exercise by the Agent or any
Secured Lender of its rights under the Transaction Documents or
the remedies in respect of the Collateral pursuant to the
Pledge Agreement.
(e) There is no action, suit, investigation, litigation or proceeding
affecting the Guarantor pending or threatened before any court,
governmental agency or arbitrator that purports to affect the
legality, validity or enforceability of this Guaranty or the
consummation of the transactions contemplated hereby or
thereby.
(f) This Guaranty has been duly executed and delivered by the
Guarantor. This Guaranty is the legal, valid and binding
obligation of the Guarantor, enforceable against the Guarantor
in accordance with its terms.
(g) [omitted]
(h) There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
(i) The Guarantor has, independently and without reliance upon the
Agent or any Secured Lender and based on such documents and
information as it has deemed appropriate, made its own analysis
and decision to enter into
this Guaranty.
Section 11. Negative Covenants. The Guarantor covenants and
agrees that, so long as any Guaranteed Obligation shall remain unpaid, the
Guarantor will not at any time without the prior written consent of the
Agent enter into or conduct any business, or engage in any activity, other
than:
(a) Discharging certain administrative activities and obligations
otherwise permitted by the Transaction Documents and provided
for in its certificate of formation and operating agreement as
of the date hereof, and making payments with respect to certain
administrative services to the extent contemplated by the
Transaction Documents; and
(b) Performing its obligations under and permitted by each
Transaction Document to which it is a party, including its
obligations under this Guaranty and the
Pledge Agreement.
Section 12. Amendments, Counterparts, Etc.
(a) No amendment or waiver of any provision of this Guaranty and no
any departure by the Guarantor therefrom shall in any event be
effective unless the same shall be in writing and signed by the
Agent, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which
given.
(b) This Agreement may be executed in any number of counterparts and
by different parties hereto 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 Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Agreement.
Section 13. Notices, Etc. All notices and other communications
provided for hereunder to any party shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, couriered,
telecopied or delivered to it, addressed to it at the address set forth in
Schedule II to the Debt Restructuring Agreement. All such notices and other
communications shall be effective (a) if mailed, five days after and
excluding the date of mailing, postage prepaid, (b) if couriered, on the
first business day after deposited with a reputable overnight courier
service, fee prepaid, (c) if transmitted by telecopier or delivered by hand
prior to 2 p.m. on any business day, on such day, and otherwise on the next
business day.
Section 14. No Waiver; Remedies. No failure on the part of the
Agent 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 15. Fees; Expenses. The Guarantor hereby agrees to pay
all out-of-pocket costs and expenses of the Agent and the Secured Lenders
in connection with the enforcement of this Guaranty and any amendment,
waiver or consent relating hereto (including, without limitation, the
reasonable fees and disbursements of counsel employed by the Agent and/or
the Secured Lenders).
Section 16. Indemnification. Without limitation on any other
obligations of the Guarantor or remedies of the Agent under this Guaranty,
the Guarantor shall, to the fullest extent permitted by law, indemnify,
defend and save and hold harmless the Agent and each Secured Lender from
and against, and shall pay on demand, any and all losses, liabilities,
damages, costs, expenses and charges (including the reasonable fees and
disbursements of counsel) suffered or incurred by the Agent or such Secured
Lender as a result of any failure of any Guaranteed Obligation to be the
legal, valid and binding obligations or JFF of the Guarantor enforceable
against the Guarantor or JFF in accordance with its terms.
Section 17. Continuing Guaranty; Assignments under the
Transaction Documents. This Guaranty is a continuing guaranty and shall (a)
remain in full force and effect until the indefeasible and irrevocable
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (b) be binding upon the Guarantor, its
successors and assigns and (c) inure to the benefit of and be enforceable
by the Agent on behalf of the Secured Lenders and their successors,
transferees and assigns. Without limiting the generality of the foregoing
clause (c), any Secured Lender may assign or otherwise transfer all or any
portion of its rights and obligations under the Transaction Documents to
any other person, or entity subject to Section 5 of the Debt Restructuring
Agreement, and such other person or entity shall thereupon become vested
with all the benefits in respect thereof granted to such Secured Lender
herein or otherwise.
Section 18. Payments by Guarantor. All payments by the
Guarantor hereunder will be made without setoff, counterclaim or other
defense.
SECTION 19. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL,
ETC. (A) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE SECURED
LENDERS AND THE GUARANTOR SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO
BE PERFORMED ENTIRELY IN SUCH STATE. ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS GUARANTY MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX
XXXX SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS GUARANTY, EACH
PARTY TO THIS GUARANTY HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. EACH SUCH PARTY HEREBY FURTHER IRREVOCABLY WAIVES ANY
CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH PARTY, AND
AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS GUARANTY BROUGHT IN ANY OF THE AFORESAID COURTS, THAT SUCH
COURT LACKS PERSONAL JURISDICTION OVER SUCH PARTY. EACH SUCH PARTY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH
PARTY IN ACCORDANCE WITH SECTION 13, SUCH SERVICE TO BECOME EFFECTIVE 30
DAYS AFTER SUCH MAILING. EACH SUCH PARTY HEREBY IRREVOCABLY WAIVES ANY
OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED
HEREUNDER OR UNDER ANY TRANSACTION DOCUMENT THAT SERVICE OF PROCESS WAS IN
ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE AGENT, ANY SECURED LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST ANY PARTY IN ANY OTHER JURISDICTION.
(B) THE GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY IN THE COURTS
REFERRED TO IN (A) ABOVE. THE GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIEN FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(C) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY OR
THE ACTIONS OF THE AGENT OR ANY OTHER SECURED LENDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be duly executed and delivered by an officer thereunto duly authorized as
of the date first above written.
SNEAKER GUARANTEE LLC
By: Xxxxxx X. Xxx Company
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Managing Director
Accepted and Agreed
BANQUE NATIONALE DE PARIS
(as Agent)
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: VP
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: AVP
GUARANTY
Dated July 2, 1998
made by
SNEAKER GUARANTEE LLC
as Guarantor,
in favor of
BANQUE NATIONALE DE PARIS,
as Agent
on behalf of itself and for
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC., XXXXXXX XXXXX PRIME
RATE PORTFOLIO and XXXXXXX XXXXX DEBT STRATEGIES PORTFOLIO
