EXHIBIT 10.77
GUARANTY
This GUARANTY, dated as of December 24, 2002, is made by XXXXXXX
ENTERPRISES, INC., a Delaware corporation, as Guarantor, in favor of and for the
benefit of Bank of America, N.A., as lender (the "Lender).
WHEREAS Xxxxxxx Enterprises - Washington, Inc., a California
corporation and wholly owned direct subsidiary of the Guarantor (the
"Borrower"), is entering into a Loan Agreement, dated as of December 24, 2002,
among the Borrower and the Lender (as amended, supplemented, amended and
restated or otherwise modified from time to time, the "Loan Agreement"); and
WHEREAS it is a condition to the obligation of the Lender to enter into
and perform their respective obligations under the Loan Documents that the
Guarantor execute and deliver this Guaranty; and
WHEREAS the Guarantor, in furtherance of its business objectives, is
willing to provide such guaranty on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, for valuable consideration (receipt whereof is hereby
acknowledged), the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used in this Guaranty
and not otherwise defined herein shall have the respective meanings set forth in
the Loan Agreement.
SECTION 2 The Guaranty.
2.01 Guaranty. The Guarantor hereby irrevocably and
unconditionally guarantees to the Lender and its successors and permitted
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loan made by
the Lender to the Borrower and all other amounts from time to time owing to the
Lender by the Borrower under the Loan Agreement and any of the other Loan
Documents, in each case strictly in accordance with the terms hereof or thereof
(such obligations being herein collectively called the "Guaranteed
Obligations"). The Guarantor hereby further agrees that if the Borrower shall
fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Guaranteed Obligations, the Guarantor will promptly pay
the same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed Obligations,
the same will be promptly paid in full when due (whether at stated maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal. This Guaranty is a primary obligation of the Guarantor.
2.02 Obligations Unconditional. The obligations of the
Guarantor under Section 2.01 are absolute and unconditional, irrespective of the
value, genuineness, validity, regularity or enforceability of the obligations of
the Borrower under the Loan Agreement or the other Loan Documents or any other
agreement or instrument referred to herein or therein, or any substitution,
release or exchange of any other guaranty of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 2.02 that the obligations of the Guarantor
hereunder shall be absolute and unconditional, under any and all circumstances.
Without limiting the generality of the foregoing, it is agreed that the
occurrence of any one or more of the following shall not alter or impair the
liability of the Guarantor hereunder, which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, without notice to the
Guarantor, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of the
Loan Agreement or the other Loan Documents or any other agreement or
instrument referred to therein shall be done or omitted;
(c) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any rights under the Loan
Agreement or any other Loan Document or any other agreement or
instrument referred to therein shall be waived or any other guaranty of
the Guaranteed Obligations or any security therefor shall be released
or exchanged in whole or in part or otherwise dealt with; or
(d) any lien or security interest granted to, or in favor of the
Lender as security for any of the Guaranteed Obligations shall fail to
be perfected.
The Guarantor hereby expressly waives diligence, presentment, demand of payment,
protest and all notices (except as expressly provided herein) whatsoever, and
any requirement that the Lender exhaust any right, power or remedy or proceed
against the Borrower under the Loan Agreement or other Loan Document or any
other agreement or instrument referred to therein, or against any other Person
under any other guaranty of, or security for, any of the Guaranteed Obligations.
The guaranty in Section 2.01 is a guaranty of payment and not of collection.
2.03 Reinstatement. The obligations of the Guarantor under
this Guaranty shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of the Borrower in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise and the Guarantor agrees that it will
indemnify the Lender on demand for all reasonable costs and expenses (including,
without limitation, reasonable fees of counsel) incurred by the Lender in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
2.04 Subrogation. The Guarantor hereby agrees that until the
payment and satisfaction in full of all Guaranteed Obligations, the Guarantor
shall not exercise any right or remedy arising by reason of any performance by
it of its guaranty in Section 2.01 hereof, whether by subrogation or otherwise,
against the Borrower or any other guarantor of any of the Guaranteed Obligations
or any security for any of the Guaranteed Obligations.
2.05 Remedies. The Guarantor agrees that, as between the
Guarantor and the Lender, the Guaranteed Obligations may be declared to be
forthwith due and payable as provided in Paragraph 5 of the Loan Agreement for
purposes of Section 2.01 hereof notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrower, and that, in the event
of any such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by the Borrower) shall forthwith become due and payable by the Guarantor for
purposes of said Section 2.01.
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SECTION 3 Representations and Warranties. The Guarantor
represents and warrants to the Lender that:
3.01 Organization, Power and Authority. The Guarantor is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Guarantor has all requisite corporate power and
authority to own and operate its properties, to carry on its business as now
conducted and as proposed to be conducted, to enter into this Guaranty and to
carry out the transactions contemplated hereby.
3.02 Foreign Qualification. The Guarantor is qualified to do
business and in good standing in every jurisdiction wherever necessary to carry
out its business and operations, except in jurisdictions where the failure to be
so qualified or in good standing would not in the reasonable determination of
the Guarantor be expected to impair the ability of the Guarantor to perform its
payment or other material obligations under this Guaranty.
3.03 Authorization. The Guarantor has duly authorized by all
necessary corporate action the execution, delivery and performance of this
Guaranty.
3.04 No Conflicts. The execution, delivery and performance by
the Guarantor of this Guaranty and the consummation of the transactions
contemplated hereby do not and will not (i) violate any provision of any law or
any governmental rule or regulation applicable to the Guarantor, the certificate
of incorporation or bylaws of the Guarantor or any order, judgment or decree of
any court or other agency of government binding on the Guarantor, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any contractual obligation of the Guarantor, except for
any such default which would not in the reasonable determination of the
Guarantor be expected to impair the ability of the Guarantor to perform its
payment or other material obligations hereunder, (iii) result in or require the
creation or imposition of any lien upon any of the properties or assets of the
Guarantor or (iv) require any approval of stockholders or any approval or
consent of any Person under any contractual obligation of the Guarantor, except
for such approvals or consents (A) which will have been obtained on or before
the Closing Date and have been disclosed in writing to the Lender and (B) with
respect to any contractual obligation, would not in the reasonable determination
of the Guarantor be expected to impair the ability of the Guarantor to perform
its payment or other material obligations hereunder.
3.05 No Consents, Approvals, etc. The execution, delivery and
performance by the Guarantor of this Guaranty and the consummation of the
transactions contemplated by this Guaranty do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body or any other Person which is required to be obtained or made on or prior to
the date hereof and which has not previously been obtained or made.
3.06 Execution, Delivery. Enforceability. The Guarantor has
duly executed and delivered this Guaranty and this Guaranty is the valid and
binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws relating
to or affecting the enforcement of creditors' rights generally, including
materiality, reasonableness, good faith and fair dealing, and by general
principles of equity (regardless of whether considered in a proceeding in equity
or at law).
SECTION 4 Incorporated Covenants. Reference is made to the Parent
Credit Agreement and the covenants contained in Article V of the Parent Credit
Agreement. Such covenants shall hereinafter be
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referred to as the "Incorporated Covenants." Guarantor agrees with Lender that
the Incorporated Covenants (and all other relevant provisions of the Parent
Credit Agreement related thereto, including without limitation the defined terms
contained in Article I thereof which are used in the Incorporated Covenants,
hereinafter referred to as the "Additional Incorporated Terms") are hereby
incorporated by reference into this Guaranty to the same extent and with the
same effect as if set forth fully herein and shall inure to the benefit of the
Lender, without giving effect to any waiver, amendment, modification or
replacement of the Parent Credit Agreement or any term or provision of the
Incorporated Covenants occurring subsequent to the date of this Guaranty, except
to the extent otherwise specifically provided in the following provisions of
this paragraph. Guarantor agrees to, and to the extent applicable will cause its
subsidiaries to, comply with the Incorporated Covenants as to the matters
specified therein, except that references to the terms "Administrative Agent,"
"Required Banks," and "Banks" as used therein shall be interpreted to mean the
Lender, unless, in any case, such interpretation is inappropriate under any
reasonable interpretation. In the event a waiver is granted under the Parent
Credit Agreement or an amendment or modification is executed with respect to the
Parent Credit Agreement, and such waiver, amendment and/or modification affects
the Incorporated Covenants or the Additional Incorporated Terms, then such
waiver, amendment or modification shall be effective with respect to the
Incorporated Covenants and the Additional Incorporated Terms as incorporated by
reference into this Guaranty only if consented to in writing by the Lender.
SECTION 5 Miscellaneous.
5.01 No Waiver. No failure on the part of any beneficiary of
this Guaranty to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by any such beneficiary
of any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies herein
are cumulative and are not exclusive of any remedies provided by law.
5.02 Governing Law; Waiver of Jury Trial. THIS GUARANTY SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF THE
PARTIES HERETO HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY.
5.03 Notices. Unless otherwise specifically provided herein,
all notices, consents, directions, approvals, instructions, requests and other
communications required or permitted by the terms hereof shall be in writing and
shall be made or given in accordance with Paragraph 6(g) of the Loan Agreement;
provided that, for this purpose, the address of the Guarantor shall be the one
specified below its signature below.
5.04 Amendments. This Guaranty may be terminated, amended,
supplemented, waived or modified only in a writing signed by the Lender and the
Guarantor.
5.05 Successors and Assigns. This Guaranty shall be binding
upon and inure to the benefit of the respective successors and permitted assigns
of the Guarantor and each other party hereto; provided, that the Guarantor shall
not assign or transfer its rights or obligations hereunder without the prior
written consent of the Lender.
5.06 Taxes. All payments by the Guarantor to the Lender
hereunder shall be made to the Lender in full without set-off or counterclaim
and free and clear of and exempt from, and without
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deduction or withholding for or on account of, any present or future taxes,
levies, imposts, duties or charges of whatsoever nature imposed by any
government or any political subdivision or taxing authority thereof. The
Guarantor shall reimburse the Lender for any taxes imposed on or withheld from
such payments (other than taxes imposed on the Lender's income, and franchise
taxes imposed on the Lender, by the jurisdiction under the laws of which the
Lender is organized or any political subdivision thereof).
5.07 Counterparts. This Guaranty may be executed in multiple
counterparts, all of which together shall constitute one and the same
instrument, and each of the parties hereto may execute this Guaranty by signing
any such counterpart.
5.08 Severability. Any provision of this Guaranty that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction
only, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable laws, the Guarantor hereby waives any provision of applicable laws
that renders any provision hereof prohibited or unenforceable in any respect.
5.09 Set-Off. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence and during the continuance of any Event of Default, to the
fullest extent permitted by law, the Lender is hereby authorized by the
Guarantor at any time or from time to time, upon notice to the Guarantor or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special, including,
but not limited to, Indebtedness evidenced by certificates of deposit, whether
matured or unmatured) and any other Indebtedness at any time held or owing by
the Lender to or for the credit or the account of the Guarantor against and on
account of the obligations and liabilities of the Guarantor to the Lender under
this Guaranty and the other Loan Documents, including, but not limited to, all
claims of any nature or description arising out of or connected with this
Guaranty or any other Loan Document, irrespective of whether or not (i) the
Lender shall have made any demand hereunder or (ii) the principal of or the
interest on the Loan or any other amounts due hereunder shall have become due
and payable pursuant to Paragraph 5 of the Loan Agreement and although said
obligations and liabilities, or any of them, may be contingent or unmatured.
[Signature page to follow]
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the day
and year first above written.
XXXXXXX ENTERPRISES, INC.
By:
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Name:
Title:
Address for notices:
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Attention:
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Telecopy:
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