Exhibit 4.2
GUARANTY
This GUARANTY ("Guaranty"), dated as of June 26, 2000, is made by
XXXXXX'X ENTERTAINMENT, INC., a Delaware corporation ("Guarantor"), in favor of
CITIBANK, N.A. ("Lender").
RECITALS
A. Pursuant to the Credit Agreement dated as of June 26, 2000 by and
among Xxxxxx'x Operating Company, Inc., a Delaware corporation, ("Borrower"),
the Guarantor and Citibank, N.A. (the "Lender") (as such agreement may from time
to time be extended, modified, renewed, restated, supplemented or amended, the
"Credit Agreement"), the Lender is making certain credit facilities available to
Borrower.
B. As a condition to the availability of such credit facilities,
Guarantor is required to enter into this Guaranty and to guaranty the Guaranteed
Obligations as hereinafter provided.
C. Guarantor expects to realize direct and indirect benefits as the
result of the availability of the aforementioned credit facilities to Borrower.
AGREEMENT
NOW, THEREFORE, in order to induce Lender to extend the aforementioned
credit facilities, and for other good and valuable consideration, the receipt
and adequacy of which hereby are acknowledged, Guarantor hereby represents,
warrants, covenants, agrees and guarantees as follows:
1. Definitions. This Guaranty is the Guaranty referred to in
the Credit Agreement. Terms defined in the Credit Agreement and not otherwise
defined in this Guaranty shall have the meanings given those terms in the
Credit Agreement when used herein and such definitions are incorporated
herein as though set forth in full. In addition, as used herein, the
following terms shall have the meanings respectively set forth after each:
"Guaranteed Obligations" means all Obligations of Borrower at any time
and from time to time owed to the Lender under the Credit Agreement,
whether due or to become due, matured or unmatured, liquidated or
unliquidated, or contingent or noncontingent, including obligations of
performance as well as
obligations of payment, and including interest that accrues after the
commencement of any bankruptcy or insolvency proceeding by or against
Borrower.
"Guaranty" means this Guaranty, and any extensions, modifications, F
renewals, restatements, reaffirmations, supplements or amendments
hereof.
2. Guaranty of Guaranteed Obligations. Guarantor hereby irrevocably,
unconditionally guarantees and promises to pay and perform on demand upon the
occurrence of any Event of Default the Guaranteed Obligations and each and every
one of them, including all amendments, modifications, supplements, renewals or
extensions of any of them, whether such amendments, modifications, supplements,
renewals or extensions are evidenced by new or additional instruments, documents
or agreements or change the rate of interest on any Guaranteed Obligation or the
security therefor, or otherwise.
3. Nature of Guaranty. This Guaranty is irrevocable and continuing
in nature and relates to any Guaranteed Obligations now existing or hereafter
arising. This Guaranty is a guaranty of prompt and punctual payment and
performance and is not merely a guaranty of collection.
4. Relationship to Other Agreements. Nothing herein shall in any way
modify or limit the effect of terms or conditions set forth in any other
document, instrument or agreement executed by Guarantor or in connection with
the Guaranteed Obligations, but each and every term and condition hereof shall
be in addition thereto.
5. Subordination of Indebtedness of Borrower to Guarantor to the
Guaranteed Obligations. Guarantor agrees that:
(a) Any indebtedness of Borrower now or hereafter owed to Guarantor
hereby is subordinated to the Guaranteed Obligations.
(b) If the Lender so requests, upon the occurrence and during the
continuance of any Event of Default, any such indebtedness of Borrower now
or hereafter owed to Guarantor shall be collected, enforced and received by
Guarantor as trustee for the Lender and shall be paid over to the Lender in
kind on account of the Guaranteed Obligations, but without
reducing or affecting in any manner the obligations of Guarantor under the
other provisions of this Guaranty.
(c) Should Guarantor fail to collect or enforce any such indebtedness
of Borrower now or hereafter owed to Guarantor and pay the proceeds thereof
to the Lender in accordance with Section 5(b) hereof, Lender as Guarantor's
attorney-in-fact may do such acts and sign such documents in Guarantor's
name as Lender considers necessary or desirable to effect such collection,
enforcement and/or payment.
6. Statutes of Limitations and Other Laws. Until the Guaranteed
Obligations shall have been paid and performed in full, all the rights,
privileges, powers and remedies granted to Lender hereunder shall continue to
exist and may be exercised by Lender at any time and from time to time
irrespective of the fact that any of the Guaranteed Obligations may have become
barred by any statute of limitations. Guarantor expressly waives the benefit of
any and all statutes of limitation, and any and all Laws providing for exemption
of property from execution or for evaluation and appraisal upon foreclosure, to
the maximum extent permitted by applicable Laws.
7. Waivers and Consents. Guarantor acknowledges that the obligations
undertaken herein involve the guaranty of obligations of Persons other than
Guarantor and, in full recognition of that fact, consents and agrees that Lender
may, at any time and from time to time, without notice or demand, and without
affecting the enforceability or continuing effectiveness hereof: (a) supplement,
modify, amend, extend, renew, accelerate or otherwise change the time for
payment or the terms of the Guaranteed Obligations or any part thereof,
including any increase or decrease of the rate(s) of interest thereon; (b)
supplement, modify, amend or waive, or enter into or give any agreement,
approval or consent with respect to, the Guaranteed Obligations or any part
thereof, or the Credit Agreement or any additional security or guarantees, or
any condition, covenant, default, remedy, right, representation or term thereof
or thereunder; (c) accept new or additional instruments, documents or agreements
in exchange for or relative to the Credit Agreement or the Guaranteed
Obligations or any part thereof; (d) accept partial payments on the Guaranteed
Obligations; (e) receive and hold additional security or guarantees for the
Guaranteed Obligations or any part thereof; (f) release, reconvey, terminate,
waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer
and/or enforce any security
or guarantees, and apply any security and direct the order or manner of sale
thereof as Lender in its sole and absolute discretion may determine; (g) release
any Person from any personal liability with respect to the Guaranteed
Obligations or any part thereof; (h) settle, release on terms satisfactory to
Lender or by operation of applicable Laws or otherwise liquidate or enforce any
Guaranteed Obligations and any security or guaranty therefor in any manner,
consent to the transfer of any security and bid and purchase at any sale; and/or
(i) consent to the merger, change or any other restructuring or termination of
the corporate existence of Borrower, Guarantor or any other Person, and
correspondingly restructure the Guaranteed Obligations, and any such merger,
change, restructuring or termination shall not affect the liability of Guarantor
or the continuing effectiveness hereof, or the enforceability hereof with
respect to all or any part of the Guaranteed Obligations; provided that nothing
herein shall waive, alter, diminish or modify any rights of the Borrower under
the Credit Agreement, including, without limitation, the rights of the Borrower
to agree to any amendments or modifications of the Credit Agreement.
Upon the occurrence and during the continuance of any Event of
Default, Lender may enforce this Guaranty independently as to Guarantor and
independently of any other remedy or security Lender at any time may have or
hold in connection with the Guaranteed Obligations. Guarantor expressly waives
any right to require Lender to marshal assets in favor of Guarantor, and agrees
that Lender may proceed against Borrower, or upon or against any security or
remedy, before proceeding to enforce this Guaranty, in such order as it shall
determine in its sole and absolute discretion. Lender may file a separate action
or actions against Borrower and/or Guarantor without respect to whether action
is brought or prosecuted with respect to any security or against any other
Person, or whether any other Person is joined in any such action or actions.
Guarantor agrees that Lender, Borrower, and any Affiliates of Borrower may deal
with each other in connection with the Guaranteed Obligations or otherwise, or
alter any contracts or agreements now or hereafter existing between any of them,
in any manner whatsoever, all without in any way altering or affecting the
security of this Guaranty. Lender's rights hereunder shall be reinstated and
revived, and the enforceability of this Guaranty shall continue, with respect to
any amount at any time paid on account of the Guaranteed Obligations which
thereafter shall be required to be restored or returned by Lender upon the
bankruptcy, insolvency or reorganization of Borrower, or any other
Person, or otherwise, all as though such amount had not been paid. The rights of
Lender created or granted herein and the enforceability of this Guaranty with
respect to Guarantor at all times shall remain effective to guaranty the full
amount of all the Guaranteed Obligations even though the Guaranteed Obligations,
or any part thereof, or any security or guaranty therefor, may be or hereafter
may become invalid or otherwise unenforceable as against Borrower or any other
guarantor or surety and whether or not Borrower shall have any personal
liability with respect thereto. Guarantor expressly waives any and all defenses
now or hereafter arising or asserted by reason of (a) any disability or other
defense of Borrower, with respect to the Guaranteed Obligations, (b) the
unenforceability or invalidity of any security or guaranty for the Guaranteed
Obligations or the lack of perfection or continuing perfection or failure of
priority of any security for the Guaranteed Obligations, (c) the cessation for
any cause whatsoever of the liability of Borrower (other than by reason of the
full payment and performance of all Guaranteed Obligations), (d) any failure of
Lender to marshal assets in favor of Borrower or any other Person, (e) except as
otherwise provided in this Guaranty, any failure of Lender to give notice of
sale or other disposition of collateral to Guarantor or any other Person or any
defect in any notice that may be given in connection with any sale or
disposition of collateral, (f) any failure of Lender to comply with applicable
Laws in connection with the sale or other disposition of any collateral or other
security for any Guaranteed Obligation, including without limitation, any
failure of Lender to conduct a commercially reasonable sale or other disposition
of any collateral or other security for any Guaranteed Obligation, (g) any act
or omission of Lender or others that directly or indirectly results in or aids
the discharge or release of Borrower or the Guaranteed Obligations or any
security or guaranty therefor by operation of law or otherwise, (h) any Law
which provides that the obligation of a surety or guarantor must neither be
larger in amount nor in other respects more burdensome than that of the
principal or which reduces a surety's or guarantor's obligation in proportion to
the principal obligation, (i) any failure of Lender to file or enforce a claim
in any bankruptcy or other proceeding with respect to any Person, (j) the
election by Lender, in any bankruptcy proceeding of any Person, of the
application or non-application of Section 1111(b)(2) of the United States
Bankruptcy Code, (k) any extension of credit or the grant of any Lien under
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, (1) any use of cash collateral
under Section 363 of the United States Bankruptcy Code, (m) any agreement or
stipulation with respect to the provision of adequate protection in any
bankruptcy proceeding of any Person, (n) the avoidance of any Lien in favor of
Lender for any reason, (o) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution proceeding
commenced by or against any Person, including any discharge of, or bar or stay
against collecting, all or any of the Guaranteed Obligations (or any interest
thereon) in or as a result of any such proceeding, (p) to the extent permitted,
the benefits of any form of one-action rule, or (q) any action taken by Lender
that is authorized by this Section or any other provision of the Credit
Agreement. Guarantor expressly waives all setoffs and counterclaims and all
presentments, demands for payment or performance, notices of nonpayment or
nonperformance, protests, notices of protest, notices of dishonor and all other
notices or demands of any kind or nature whatsoever with respect to the
Guaranteed Obligations, and all notices of acceptance of this Guaranty or of the
existence, creation or incurrence of new or additional Guaranteed Obligations.
8. Condition of Borrower and Borrower's Subsidiaries. Guarantor
represents and warrants to Lender that Guarantor has established adequate means
of obtaining from Borrower's Subsidiaries, on a continuing basis, financial and
other information pertaining to the businesses, operations and condition
(financial and otherwise) of Borrower and Borrower's Subsidiaries and their
Properties, and Guarantor now is and hereafter will be completely familiar with
the businesses, operations and condition (financial and otherwise) of Borrower
and Borrower's Subsidiaries and their Properties. Guarantor hereby expressly
waives and relinquishes any duty on the part of Lender (should any such duty
exist) to disclose to Guarantor any matter, fact or thing related to the
businesses, operations or condition (financial or otherwise) of Borrower or
Borrower's Subsidiaries or their Properties, whether now known or hereafter
known by Lender during the life of this Guaranty. With respect to any of the
Guaranteed Obligations, Lender need not inquire into the powers of Borrower or
any of its Subsidiaries or the officers or employees acting or purporting to act
on their behalf, and all Guaranteed Obligations made or created in good faith
reliance upon the professed exercise of such powers shall be secured hereby.
9. Waiver of Rights of Subrogation. Notwithstanding anything to the
contrary elsewhere contained herein or the Credit Agreement to which Guarantor
is a party, Guarantor hereby expressly waives with respect to
Borrower and its successors and assigns (including any surety) and any other
Person which is directly or indirectly a creditor of Borrower or any surety for
Borrower, any and all rights at Law or in equity to subrogation, to
reimbursement, to exoneration, to contribution, to setoff or to any other rights
that could accrue to a surety against a principal, to a guarantor against a
maker or obligor, to an accommodation party against the party accommodated, or
to a holder or transferee against a maker, and which Guarantor may have or
hereafter acquire against Borrower or any other such Person in connection with
or as a result of Guarantor's execution, delivery and/or performance of this
Guaranty or the Credit Agreement. Guarantor agrees that it shall not have or
assert any such rights against Borrower or its successors and assigns or any
other Person (including any surety) which is directly or indirectly a creditor
of any surety for Borrower, either directly or as an attempted setoff to any
action commenced against Guarantor by Borrower (as borrower or in any other
capacity), Lender or any other such Person. Guarantor hereby acknowledges and
agrees that this waiver is intended to benefit Borrower and Lender and shall not
limit or otherwise affect Guarantor's liability hereunder, or under the Credit
Agreement or the enforceability hereof or thereof.
10. Understanding With Respect to Waivers and Consents. Guarantor
warrants and agrees that each of the waivers and consents set forth herein are
made with full knowledge of their significance and consequences, with the
understanding that events giving rise to any defense or right waived may
diminish, destroy or otherwise adversely affect rights which Guarantor otherwise
may have against Borrower, Lender or others, or against any collateral, and
that, under the circumstances, the waivers and consents herein given are
reasonable and not contrary to public policy or Law. Guarantor acknowledges that
it has either consulted with legal counsel regarding the effect of this Guaranty
and the waivers and consents set forth herein, or has made an informed decision
not to do so. If this Guaranty or any of the waivers or consents herein are
determined to be unenforceable under or in violation of applicable Law, this
Guaranty and such waivers and consents shall be effective to the maximum extent
permitted by Law.
11. Representations and Warranties. Guarantor hereby makes each and
every representation and warranty applicable to Guarantor set forth in Article
IV of the Credit Agreement as if set forth in full herein.
12. Costs and Expenses. After an Event of Default, Guarantor agrees
to pay to Lender all costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements) incurred by Lender in the
enforcement or attempted enforcement of this Guaranty, whether or not an action
is filed in connection therewith, and in connection with any waiver or amendment
of any term or provision hereof. All advances, charges, costs and expenses,
including reasonable attorneys' fees and disbursements (including the reasonably
allocated cost of legal counsel employed by Lender), incurred or paid by Lender
in exercising any right, privilege, power or remedy conferred by this Guaranty,
or in the enforcement or attempted enforcement thereof, shall be subject hereto
and shall become a part of the Guaranteed Obligations and shall be paid to
Lender by Guarantor, after an Event of Default and immediately upon demand,
together with interest thereon at the rate(s) provided for under the Credit
Agreement.
13. Construction of this Guaranty. This Guaranty is intended to give
rise to absolute and unconditional obligations on the part of Guarantor; hence,
in any construction hereof, notwithstanding any provision of the Credit
Agreement to the contrary, this Guaranty shall be construed strictly in favor of
Lender in order to accomplish its stated purpose.
14. Liability. Notwithstanding anything to the contrary elsewhere
contained herein or in the Credit Agreement, the aggregate liability of
Guarantor hereunder for payment and performance of the Guaranteed Obligations
shall not exceed an amount which, in the aggregate, is $1.00 less than that
amount which if so paid or performed would constitute or result in a "fraudulent
transfer", "fraudulent conveyance", or terms of similar import, under applicable
state or federal Law, including without limitation, Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Bankruptcy Code. The liability of Guarantor hereunder is independent of
any other guarantees at any time in effect with respect to all or any part of
the Guaranteed Obligations, and Guarantor's liability hereunder may be enforced
regardless of the existence of any such guarantees. Any termination by or
release of any guarantor in whole or in part shall not affect the continuing
liability of Guarantor hereunder, and no notice of any such termination or
release shall be required. The execution hereof by Guarantor is not founded upon
an expectation or understanding that there will be any other guarantor of the
Guaranteed Obligations.
15. WAIVER OF JURY TRIAL. GUARANTOR AND LENDER EXPRESSLY WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS GUARANTY, THE CREDIT
AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR PARTIES, WHETHER NOW EXISTING OR HEREAFTER ARISING AND
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. GUARANTOR
AND LENDER AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS GUARANTY, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY, THE LOAN AGREEMENT AND
THE OTHER LOAN DOCUMENTS. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
16. THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty by its duly
authorized officer as of the date first written above.
"Guarantor"
XXXXXX'X ENTERTAINMENT, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and
Treasurer
Address:
Xxxxxx'x Entertainment Inc.
0000 Xxxx Xxxxxx Xxxxxx, #000
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
