CONTINUING AGREEMENT OF GUARANTY AND SURETYSHIP - SUBSIDIARIES
Exhibit
10.2
CONTINUING
AGREEMENT OF GUARANTY AND SURETYSHIP - SUBSIDIARIES
THIS
CONTINUING AGREEMENT OF GUARANTY AND SURETYSHIP - SUBSIDIARIES (this "Guaranty"), dated as of this
18th day of February, 2010, is jointly and severally given by EACH OF THE UNDERSIGNED and
jointly and severally given by EACH
OF THE OTHER PERSONS WHICH BECOME GUARANTORS HEREUNDER FROM TIME TO TIME
(each a "Guarantor" and
collectively, the "Guarantors") in favor of PNC BANK, NATIONAL
ASSOCIATION, as administrative agent (the "Administrative Agent") for the
Lenders (as herein defined) in connection with that Credit Agreement, dated as
of February 18, 2010, by and among The Finish Line, Inc., an Indiana
corporation, The Finish Line USA, Inc., an Indiana corporation, The Finish Line
Distribution, Inc., an Indiana corporation, Finish Line Transportation Co.,
Inc., an Indiana corporation and Spike's Holding, LLC, an Indiana limited
liability company (each a "Borrower" and collectively,
the "Borrowers"), the
Administrative Agent, the lenders now or hereafter party thereto (the "Lenders") and the Guarantors
(as amended, restated, modified, or supplemented from time to time hereafter,
the "Credit
Agreement"). Capitalized terms not otherwise defined herein
shall have the respective meanings ascribed to them by the Credit Agreement and
the rules of construction set forth in Section 1.2 [Construction] of the Credit
Agreement shall apply to this Guaranty.
1. Guarantied
Obligations. To induce the Administrative Agent and the
Lenders to make loans and grant other financial accommodations to the Borrowers
under the Credit Agreement, each Guarantor hereby jointly and severally
unconditionally, and irrevocably, guaranties to the Administrative Agent, each
Lender and any provider of a Lender Provided Interest Rate Hedge or any provider
of any Other Lender Provided Financial Service Product, and becomes surety, as
though it was a primary obligor for, the full and punctual payment and
performance when due (whether on demand, at stated maturity, by acceleration, or
otherwise and including any amounts which would become due but for the operation
of an automatic stay under the federal bankruptcy code of the United States or
any similar Laws of any country or jurisdiction) of all Obligations, including,
without limiting the generality of the foregoing, all obligations, liabilities,
and indebtedness from time to time of any Borrower or any other Guarantor to the
Administrative Agent or any of the Lenders or any Affiliate of any Lender under
or in connection with the Credit Agreement or any other Loan Document, whether
for principal, interest, fees, indemnities, expenses, or otherwise, and all
renewals, extensions, refinancings or refundings thereof, whether such
obligations, liabilities, or indebtedness are direct or indirect, secured or
unsecured, joint or several, absolute or contingent, due or to become due,
whether for payment or performance, now existing or hereafter arising (and
including obligations, liabilities, and indebtedness arising or accruing after
the commencement of any bankruptcy, insolvency, reorganization, or similar
proceeding with respect to any Borrower or any Guarantor or which would have
arisen or accrued but for the commencement of such proceeding, even if the claim
for such obligation, liability, or indebtedness is not enforceable or allowable
in such proceeding, and including all Obligations, liabilities, and Indebtedness
arising from any extensions of credit under or in connection with any Loan
Document from time to time, regardless of whether any such extensions of credit
are in excess of the amount committed under or contemplated by the Loan
Documents or are made in circumstances in which any condition to extension of
credit is not satisfied) (all of the foregoing obligations, liabilities and
indebtedness are referred to herein collectively as the "Guarantied Obligations" and
each as a "Guarantied
Obligation"). Without limitation of the foregoing, any of the
Guarantied Obligations shall be and remain Guarantied Obligations entitled to
the benefit of this Guaranty if the Administrative Agent or any of the Lenders
(or any one or more assignees or transferees thereof) from time to time assign
or otherwise transfer any portion of their respective rights and obligations
under the Loan Documents, or any other Guarantied Obligations, to any other
Person. In furtherance of the foregoing, each Guarantor jointly and
severally agrees as follows.
2. Guaranty. Each
Guarantor hereby promises to pay and perform all such Guarantied Obligations
immediately upon demand of the Administrative Agent and the Lenders or any one
or more of them. All payments made hereunder shall be made by each
Guarantor in immediately available funds in U.S. Dollars and shall be made
without setoff, counterclaim, withholding, or other deduction of any
nature.
3. Obligations
Absolute. The obligations of the Guarantors hereunder shall
not be discharged or impaired or otherwise diminished by the failure, default,
omission, or delay, willful or otherwise, by any Lender, the Administrative
Agent, or any Borrower or any other obligor on any of the Guarantied
Obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
any Guarantor or would otherwise operate as a discharge of any Guarantor as a
matter of law or equity. Each of the Guarantors agrees that the
Guarantied Obligations will be paid and performed strictly in accordance with
the terms of the Loan Documents. Without limiting the generality of
the foregoing, each Guarantor hereby consents to, at any time and from time to
time, and the joint and several obligations of each Guarantor hereunder shall
not be diminished, terminated, or otherwise similarly affected by any of the
following:
(a) Any
lack of genuineness, legality, validity, enforceability or allowability (in a
bankruptcy, insolvency, reorganization or similar proceeding, or otherwise), or
any avoidance or subordination, in whole or in part, of any Loan Document or any
of the Guarantied Obligations and regardless of any Law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of the Guarantied
Obligations, any of the terms of the Loan Documents, or any rights of the
Administrative Agent or the Lenders or any other Person with respect
thereto;
(b) Any
increase, decrease, or change in the amount, nature, type or purpose of any of,
or any release, surrender, exchange, compromise or settlement of any of the
Guarantied Obligations (whether or not contemplated by the Loan Documents as
presently constituted); any change in the time, manner, method, or place of
payment or performance of, or in any other term of, any of the Guarantied
Obligations; any execution or delivery of any additional Loan Documents; or any
amendment, modification or supplement to, or renewals, extensions, refinancing
or refunding of, any Loan Document or any of the Guarantied
Obligations;
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(c) Any
failure to assert any breach of or default under any Loan Document or any of the
Guarantied Obligations; any extensions of credit in excess of the amount
committed under or contemplated by the Loan Documents, or in circumstances in
which any condition to such extensions of credit has not been satisfied; any
other exercise or non-exercise, or any other failure, omission, breach, default,
delay, or wrongful action in connection with any exercise or non-exercise, of
any right or remedy against any Borrower or any other Person under or in
connection with any Loan Document or any of the Guarantied Obligations; any
refusal of payment or performance of any of the Guarantied Obligations, whether
or not with any reservation of rights against any Guarantor; or any application
of collections (including but not limited to collections resulting from
realization upon any direct or indirect security for the Guarantied Obligations)
to other obligations, if any, not entitled to the benefits of this Guaranty, in
preference to Guarantied Obligations entitled to the benefits of this Guaranty,
or if any collections are applied to Guarantied Obligations, any application to
particular Guarantied Obligations;
(d) Any
taking, exchange, amendment, modification, waiver, supplement, termination,
subordination, compromise, release, surrender, loss, or impairment of, or any
failure to protect, perfect, or preserve the value of, or any enforcement of,
realization upon, or exercise of rights, or remedies under or in connection
with, or any failure, omission, breach, default, delay, or wrongful action by
the Administrative Agent or the Lenders, or any of them, or any other Person in
connection with the enforcement of, realization upon, or exercise of rights or
remedies under or in connection with, or, any other action or inaction by the
Administrative Agent or the Lenders, or any of them, or any other Person in
respect of, any direct or indirect security for any of the Guarantied
Obligations. As used in this Guaranty, "direct or indirect security"
for the Guarantied Obligations, and similar phrases, includes any collateral
security, guaranty, suretyship, letter of credit, capital maintenance agreement,
put option, subordination agreement, or other right or arrangement of any nature
providing direct or indirect assurance of payment or performance of any of the
Guarantied Obligations, made by or on behalf of any Person;
(e) Any
merger, consolidation, liquidation, dissolution, winding-up, charter revocation,
or forfeiture, or other change in, restructuring or termination of the corporate
structure or existence of, any Borrower or any other Person; any bankruptcy,
insolvency, reorganization or similar proceeding with respect to any Borrower or
any other Person; or any action taken or election made by the Administrative
Agent or the Lenders, or any of them (including but not limited to any election
under Section 1111(b)(2) of the United States Bankruptcy Code), such Borrower,
or any other Person in connection with any such proceeding;
(f) Any
defense, setoff, or counterclaim which may at any time be available to or be
asserted by any Borrower or any other person with respect to any Loan Document
or any of the Guarantied Obligations; or any discharge by operation of law or
release of any Borrower or any other Person from the performance or observance
of any Loan Document or any of the Guarantied Obligations; or
(g) Any
other event or circumstance, whether similar or dissimilar to the foregoing, and
whether known or unknown, which might otherwise constitute a defense available
to, or limit the liability of, any Guarantor, a guarantor or a surety, excepting
only full, strict, and indefeasible payment and performance of the Guarantied
Obligations.
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Each
Guarantor acknowledges, consents, and agrees that new Guarantors may join in
this Guaranty pursuant to Section 8.2.9 [Subsidiaries, Partnerships and
Joint Ventures] of the Credit Agreement and each Guarantor affirms that its
obligations shall continue hereunder undiminished.
4. Waivers,
etc. Each of the Guarantors hereby waives any defense to or
limitation on its obligations under this Guaranty arising out of or based on any
event or circumstance referred to in Section 3 hereof. Without
limitation and to the fullest extent permitted by applicable Law, each Guarantor
waives each of the following:
(a) All
notices, disclosures and demand of any nature which otherwise might be required
from time to time to preserve intact any rights against any other Guarantor,
including the following: any notice of any event or circumstance
described in Section 3 hereof; any notice required by any Law, regulation or
order now or hereafter in effect in any jurisdiction; any notice of nonpayment,
nonperformance, dishonor, or protest under any Loan Document or any of the
Guarantied Obligations; any notice of the incurrence of any Guarantied
Obligation; any notice of any default or any failure on the part of any Borrower
or any other Person to comply with any Loan Document or any of the Guarantied
Obligations or any direct or indirect security for any of the Guarantied
Obligations; and any notice of any information pertaining to the business,
operations, condition (financial or otherwise) or prospects of any Borrower or
any other Person;
(b) Any
right to any marshalling of assets, to the filing of any claim against any
Borrower or any other Person in the event of any bankruptcy, insolvency,
reorganization or similar proceeding, or to the exercise against any Borrower or
any other Person of any other right or remedy under or in connection with any
Loan Document or any of the Guarantied Obligations or any direct or indirect
security for any of the Guarantied Obligations; any requirement of promptness or
diligence on the part of the Administrative Agent or the Lenders, or any of
them, or any other Person; any requirement to exhaust any remedies under or in
connection with, or to mitigate the damages resulting from default under, any
Loan Document or any of the Guarantied Obligations or any direct or indirect
security for any of the Guarantied Obligations; any benefit of any statute of
limitations; and any requirement of acceptance of this Guaranty or any other
Loan Document, and any requirement that any Guarantor receive notice of any such
acceptance;
(c) Any
defense or other right arising by reason of any Law now or hereafter in effect
in any jurisdiction pertaining to election of remedies (including but not
limited to anti-deficiency laws, "one action" laws or the like), or by reason of
any election of remedies or other action or inaction by the Administrative Agent
or the Lenders, or any of them (including but not limited to commencement or
completion of any judicial proceeding or nonjudicial sale or other action in
respect of collateral security for any of the Guarantied Obligations), which
results in denial or impairment of the right of the Administrative Agent or the
Lenders, or any of them, to seek a deficiency against any Borrower or any other
Person or which otherwise discharges or impairs any of the Guarantied
Obligations; and
(d) Any
and all defenses it may now or hereafter have based on principles of suretyship,
impairment of collateral or the like.
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5. Reinstatement. This
Guaranty is a continuing obligation of the Guarantors and shall remain in full
force and effect notwithstanding that no Guarantied Obligations may be
outstanding from time to time and notwithstanding any other event or
circumstance. Upon termination of all Commitments, the expiration of
all Letters of Credit and indefeasible payment in full of all Guarantied
Obligations, this Guaranty shall terminate; provided, however, that this
Guaranty shall continue to be effective or be reinstated, as the case may be,
any time any payment of any of the Guarantied Obligations is rescinded,
recouped, avoided, or must otherwise be returned or released by any Lender or
Administrative Agent upon or during the insolvency, bankruptcy, or
reorganization of, or any similar proceeding affecting, any Borrower or for any
other reason whatsoever, all as though such payment had not been made and was
due and owing.
6. Subrogation. Each
Guarantor waives and agrees it will not exercise any rights against any Borrower
or any other Guarantor arising in connection with, the Guarantied Obligations
(including rights of subrogation, contribution, and the like) until the
Guarantied Obligations have been indefeasibly paid in full, and all Commitments
have been terminated and all Letters of Credit have expired. If any
amount shall be paid to any Guarantor by or on behalf of any Borrower or any
other Guarantor by virtue of any right of subrogation, contribution, or the
like, such amount shall be deemed to have been paid to such Guarantor for the
benefit of, and shall be held in trust for the benefit of, the Administrative
Agent and the Lenders and shall forthwith be paid to the Administrative Agent to
be credited and applied upon the Guarantied Obligations, whether matured or
unmatured, in accordance with the terms of the Credit Agreement.
7. No
Stay. Without limitation of any other provision of this
Guaranty, if any declaration of default or acceleration or other exercise or
condition to exercise of rights or remedies under or with respect to any
Guarantied Obligation shall at any time be stayed, enjoined, or prevented for
any reason (including but not limited to stay or injunction resulting from the
pendency against any Borrower or any other Person of a bankruptcy, insolvency,
reorganization or similar proceeding), the Guarantors agree that, for the
purposes of this Guaranty and their obligations hereunder, the Guarantied
Obligations shall be deemed to have been declared in default or accelerated, and
such other exercise or conditions to exercise shall be deemed to have been taken
or met.
8. Taxes.
(a) No
Deductions. All payments made by any Guarantor under any of
the Loan Documents shall be made free and clear of and without deduction for any
present or future taxes, levies, imposts, deductions, charges, or withholdings,
and all liabilities with respect thereto other than Excluded Taxes (all such
non-Excluded Taxes being hereinafter referred to as "Taxes"). If any
Guarantor shall be required by Law to deduct any Taxes from or in respect of any
sum payable under any of the Loan Documents, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Subsection (a) such Lender receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Guarantor shall make
such deductions, and (iii) such Guarantor shall timely pay the full amount
deducted to the relevant tax authority or other authority in accordance with
applicable Law.
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(b) Stamp
Taxes. In addition, each Guarantor agrees to pay any present
or future stamp or documentary taxes or any other excise or property taxes,
charges, or similar levies which arise from any payment made hereunder or from
the execution, delivery, or registration of, or otherwise with respect to, any
of the Loan Documents (hereinafter referred to as "Other Taxes").
(c) Indemnification for Taxes
Paid by any Lender. Each Guarantor shall indemnify each Lender
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Subsection) paid by any Lender and any liability (including penalties, interest,
and expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days from the date a Lender
makes written demand therefor.
(d) Certificate. Within
thirty (30) days after the date of any payment of any Taxes by any Guarantor,
such Guarantor shall furnish to each Lender, the original or a certified copy of
a receipt evidencing payment thereof. If no Taxes are payable in
respect of any payment by such Guarantor, such Guarantor shall, if so requested
by a Lender, provide a certificate of an officer of such Guarantor to that
effect.
9. Notices. Each
Guarantor agrees that all notices, statements, requests, demands and other
communications under this Guaranty shall be given to such Guarantor at the
address set forth on a Schedule to, or in a Guarantor Joinder and Assumption
Agreement given under, the Credit Agreement and in the manner provided in
Section 11.5 [Notices; Effectiveness; Electronic Communication] of the
Credit Agreement. The Administrative Agent and the Lenders may rely
on any notice (whether or not made in a manner contemplated by this Guaranty)
purportedly made by or on behalf of a Guarantor, and the Administrative Agent
and the Lenders shall have no duty to verify the identity or authority of the
Person giving such notice.
10. Counterparts; Telecopy
Signatures. This Guaranty may be executed in any number of
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same
instrument. Each Guarantor acknowledges and agrees that a telecopy
transmission to Administrative Agent or any Lender of signature pages hereof
purporting to be signed on behalf of any Guarantor shall constitute effective
and binding execution and delivery hereof by such Guarantor.
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11. Setoff, Default Payments by
any Borrower.
(a) In
the event that at any time any obligation of the Guarantors now or hereafter
existing under this Guaranty shall have become due and payable, the
Administrative Agent and the Lenders, or any of them, shall have the right from
time to time, without notice to any Guarantor, to set off against and apply to
such due and payable amount any obligation of any nature of any Lender or the
Administrative Agent, or any subsidiary or affiliate of any Lender or
Administrative Agent, to any Guarantor, including but not limited to all
deposits (whether time or demand, general or special, provisionally credited or
finally credited, however evidenced) now or hereafter maintained by any
Guarantor with the Administrative Agent or any Lender. Such right
shall be absolute and unconditional in all circumstances and, without
limitation, shall exist whether or not the Administrative Agent or the Lenders,
or any of them, shall have given any notice or made any demand under this
Guaranty or under such obligation to the Guarantor, whether such obligation to
the Guarantor is absolute or contingent, matured or unmatured (it being agreed
that the Administrative Agent and the Lenders, or any of them, may deem such
obligation to be then due and payable at the time of such setoff), and
regardless of the existence or adequacy of any collateral, guaranty, or other
direct or indirect security or right or remedy available to the Administrative
Agent or any of the Lenders. The rights of the Administrative Agent
and the Lenders under this Section are in addition to such other rights and
remedies (including, without limitation, other rights of setoff and banker's
lien) which the Administrative Agent and the Lenders, or any of them, may have,
and nothing in this Guaranty or in any other Loan Document shall be deemed a
waiver of or restriction on the right of setoff or banker's lien of the
Administrative Agent and the Lenders, or any of them. Each of the
Guarantors hereby agrees that, to the fullest extent permitted by Law, any
affiliate or subsidiary of the Administrative Agent or any of the Lenders and
any holder of a participation in any obligation of any Guarantor under this
Guaranty, shall have the same rights of setoff as the Administrative Agent and
the Lenders as provided in this Section (regardless whether such affiliate or
participant otherwise would be deemed a creditor of the Guarantor).
(b) Upon
the occurrence and during the continuation of any default under any Guarantied
Obligation, if any amount shall be paid to any Guarantor by or for the account
of any Borrower, such amount shall be held in trust for the benefit of each
Lender and Administrative Agent and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guarantied Obligations
when due and payable.
12. Construction. The
section and other headings contained in this Guaranty are for reference purposes
only and shall not affect interpretation of this Guaranty in any
respect. This Guaranty has been fully negotiated between the
applicable parties, each party having the benefit of legal counsel, and
accordingly neither any doctrine of construction of guaranties or suretyships in
favor of the guarantor or surety, nor any doctrine of construction of
ambiguities in agreement or instruments against the party controlling the
drafting thereof, shall apply to this Guaranty.
13. Successors and
Assigns. This Guaranty shall be binding upon each Guarantor,
its successors and assigns, and shall inure to the benefit of and be enforceable
by the Administrative Agent and the Lenders, or any of them, and their
successors and permitted assigns; provided, however, that no
Guarantor may assign or transfer any of its rights or obligations hereunder or
any interest herein and any such purported assignment or transfer shall be null
and void. Without limitation of the foregoing, the Administrative
Agent and the Lenders, or any of them (and any successive assignee or
transferee), from time to time may assign or otherwise transfer all or any
portion of its rights or obligations under the Loan Documents (including all or
any portion of any commitment to extend credit), or any other Guarantied
Obligations, to any other person and such Guarantied Obligations (including any
Guarantied Obligations resulting from extension of credit by such other Person
under or in connection with the Loan Documents) shall be and remain Guarantied
Obligations entitled to the benefit of this Guaranty, and to the extent of its
interest in such Guarantied Obligations such other Person shall be vested with
all the benefits in respect thereof granted to the Administrative Agent and the
Lenders in this Guaranty or otherwise.
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14. Governing Law; Submission to
Jurisdiction; Waiver of Jury Trial.
(a) Governing
Law. This Guaranty shall be governed by, construed, and
enforced in accordance with, the internal Laws of the State of Indiana, without
regard to conflict of laws principles, and waives personal service of any and
all process upon it and consents that all such service of process be made by
certified or registered mail directed to such Guarantor at the address set forth
on the signature page to this Guaranty and service so made shall be deemed to be
completed upon actual receipt thereof.
(b) Certain
Waivers. Guarantor hereby irrevocably:
(i) Submits to the
nonexclusive jurisdiction of the courts of the State of Indiana sitting in
Xxxxxx County and the United States District Court for the Southern District of
Indiana, and any appellate court from any thereof;
(ii) Waives any objection to
jurisdiction and venue of any action instituted against it as provided herein
and agrees not to assert any defense based on lack of jurisdiction or venue;
and
(iii) WAIVES TRIAL BY JURY IN ANY
ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED
TO THIS GUARANTY, THE CREDIT AGREEMENT, OR ANY OTHER LOAN DOCUMENT TO THE
FULLEST EXTENT PERMITTED BY LAW.
15. Severability; Modification
to Conform to Law.
(a) It
is the intention of the parties that this Guaranty be enforceable to the fullest
extent permissible under applicable Law, but that the unenforceability (or
modification to conform to such Law) of any provision or provisions hereof shall
not render unenforceable, or impair, the remainder hereof. If any
provision in this Guaranty shall be held invalid or unenforceable in whole or in
part in any jurisdiction, this Guaranty shall, as to such jurisdiction, be
deemed amended to modify or delete, as necessary, the offending provision or
provisions and to alter the bounds thereof in order to render it or them valid
and enforceable to the maximum extent permitted by applicable Law, without in
any manner affecting the validity or enforceability of such provision or
provisions in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
(b) Without
limitation of the preceding subsection (a), to the extent that applicable Law
(including applicable Laws pertaining to fraudulent conveyance or fraudulent or
preferential transfer) otherwise would render the full amount of the Guarantor's
obligations hereunder invalid, voidable, or unenforceable on account of the
amount of a Guarantor's aggregate liability under this Guaranty, then,
notwithstanding any other provision of this Guaranty to the contrary, the
aggregate amount of such liability shall, without any further action by the
Administrative Agent or any of the Lenders or such Guarantor or any other
Person, be automatically limited and reduced to the highest amount which is
valid and enforceable as determined in such action or proceeding, which (without
limiting the generality of the foregoing) may be an amount which is equal to the
greater of:
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(i) the
fair consideration actually received by such Guarantor under the terms and as a
result of the Loan Documents and the value of the benefits described in this
Section 15(b) hereof, including (and to the extent not inconsistent with
applicable federal and state Laws affecting the enforceability of guaranties)
distributions, commitments, and advances made to or for the benefit of such
Guarantor with the proceeds of any credit extended under the Loan Documents,
or
(ii) the
excess of (A) the amount of the fair value of the assets of such Guarantor
as of the date of this Guaranty as determined in accordance with applicable
federal and state Laws governing determinations of the insolvency of debtors as
in effect on the date hereof, over (B) the amount of all liabilities of
such Guarantor as of the date of this Guaranty, also as determined on the basis
of applicable federal and state Laws governing the insolvency of debtors as in
effect on the date hereof.
(c) Notwithstanding
anything to the contrary in this Section or elsewhere in this Guaranty, this
Guaranty shall be presumptively valid and enforceable to its full extent in
accordance with its terms, as if this Section (and references elsewhere in this
Guaranty to enforceability to the fullest extent permitted by Law) were not a
part of this Guaranty, and in any related litigation the burden of proof shall
be on the party asserting the invalidity or unenforceability of any provision
hereof or asserting any limitation on any Guarantor's obligations hereunder as
to each element of such assertion.
16. Additional
Guarantors. At any time after the initial execution and
delivery of this Guaranty to the Administrative Agent and the Lenders,
additional Persons may become parties to this Guaranty and thereby acquire the
duties and rights of being Guarantors hereunder by executing and delivering to
the Administrative Agent and the Lenders a Guarantor Joinder pursuant to the
Credit Agreement. No notice of the addition of any Guarantor shall be
required to be given to any pre-existing Guarantor and each Guarantor hereby
consents thereto.
17. Joint and Several
Obligations. The obligations and additional liabilities of the
Guarantors under this Guaranty are joint and several obligations of the
Guarantors under any other Guaranty under the Credit Agreement, and each
Guarantor hereby waives to the full extent permitted by Law any defense it may
otherwise have to the payment and performance of the Obligations that its
liability hereunder is limited and not joint and several. Each
Guarantor acknowledges and agrees that the foregoing waivers and those set forth
below serve as a material inducement to the agreement of the Administrative
Agent and the Lenders to make the Loans, and that the Administrative Agent and
the Lenders are relying on each specific waiver and all such waivers in entering
into this Guaranty. The undertakings of each Guarantor hereunder
secure the obligations of itself and the other Guarantors. The
Administrative Agent and the Lenders, or any of them, may, in their sole
discretion, elect to enforce this Guaranty against any Guarantor without any
duty or responsibility to pursue any other Guarantor and such an election by the
Administrative Agent and the Lenders, or any of them, shall not be a defense to
any action the Administrative Agent and the Lenders, or any of them, may elect
to take against any Guarantor. Each of the Lenders and Administrative
Agent hereby reserve all rights against each Guarantor.
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18. Receipt of Credit Agreement,
Other Loan Documents, Benefits.
(a) Each
Guarantor hereby acknowledges that it has received a copy of the Credit
Agreement and the other Loan Documents and each Guarantor certifies that the
representations and warranties made therein with respect to such Guarantor are
true and correct. Further, each Guarantor acknowledges and agrees to
perform, comply with, and be bound by all of the provisions of the Credit
Agreement and the other Loan Documents.
(b) Each
Guarantor hereby acknowledges, represents, and warrants that it receives
synergistic benefits by virtue of its affiliation with the Borrowers and the
other Guarantors and that it will receive direct and indirect benefits from the
financing arrangements contemplated by the Credit Agreement and that such
benefits, together with the rights of contribution and subrogation that may
arise in connection herewith, are a reasonably equivalent exchange of value in
return for providing this Guaranty.
19. Miscellaneous.
(a) Generality of Certain
Terms. As used in this Guaranty, the terms "hereof", "herein"
and terms of similar import refer to this Guaranty as a whole and not to any
particular term or provision; the term "including", as used herein, is not a
term of limitation and means "including without limitation".
(b) Amendments,
Waivers. No amendment to or waiver of any provision of this
Guaranty, and no consent to any departure by any Guarantor herefrom, shall in
any event be effective unless in a writing manually signed by or on behalf of
the Administrative Agent and the Lenders. Any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. No delay or failure of the Administrative Agent or
the Lenders, or any of them, in exercising any right or remedy under this
Guaranty shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right or remedy preclude any other or further exercise
thereof or the exercise of any other right or remedy. The rights and
remedies of the Administrative Agent and the Lenders under this Guaranty are
cumulative and not exclusive of any other rights or remedies available
hereunder, under any other agreement or instrument, by Law, or
otherwise.
(c) Telecommunications. Each
Lender and Administrative Agent shall be entitled to rely on the authority of
any individual making any telecopy, electronic or telephonic notice, request, or
signature without the necessity of receipt of any verification
thereof.
(d) Expenses. Each
Guarantor unconditionally agrees to pay all out-of-pocket costs and expenses,
including reasonable attorney's fees incurred by the Administrative Agent or any
of the Lenders in enforcing this Guaranty against any Guarantor and each
Guarantor shall pay and indemnify each Lender and Administrative Agent for, and
hold it harmless from and against, any and all obligations, liabilities, losses,
damages, costs, expenses (including disbursements and reasonable legal fees of
counsel to any Lender or Administrative Agent), penalties, judgments, suits,
actions, claims, and disbursements imposed on, asserted against, or incurred by
any Lender or Administrative Agent:
10
(i) relating
to the preparation, negotiation, execution, administration, or enforcement of or
collection under this Guaranty or any document, instrument, or agreement
relating to any of the Guaranteed Obligations, including in any bankruptcy,
insolvency, or similar proceeding in any jurisdiction or political subdivision
thereof;
(ii) relating
to any amendment, modification, waiver, or consent hereunder or relating to any
telecopy, electronic or telephonic transmission purporting to be by any
Guarantor or any Borrower; and
(iii) in
any way relating to or arising out of this Guaranty, or any document,
instrument, or agreement relating to any of the Guarantied Obligations, or any
action taken or omitted to be taken by any Lender or Administrative Agent
hereunder or thereunder, and including those arising directly or indirectly from
the violation or asserted violation by any other Guarantor, any Borrower,
Administrative Agent or any Lender of any Law, rule, regulation, judgment,
order, or the like of any jurisdiction or political subdivision thereof
(including those relating to environmental protection, health, labor, importing,
exporting, or safety) and regardless whether asserted by any governmental entity
or any other Person, except to the extent resulting from the Administrative
Agent's or any other Lender's gross negligence or willful
misconduct.
(e) Prior
Understandings. This Guaranty, the Credit Agreement and the
other Loan Documents constitute the entire agreement of the parties hereto with
respect to the subject matter hereof and supersede any and all other prior and
contemporaneous understandings and agreements.
(f) Survival. All
representations and warranties of a Guarantor made in connection with this
Guaranty shall survive, and shall not be waived by, the execution and delivery
of this Guaranty, any investigation by or knowledge of the Administrative Agent
and the Lenders, or any of them, any extension of credit, or any other event or
circumstance whatsoever.
[SIGNATURE
PAGE FOLLOWS]
11
[SIGNATURE
PAGE - CONTINUING AGREEMENT OF GUARANTY AND SURETYSHIP -
SUBSIDIARIES]
IN
WITNESS WHEREOF, the undersigned party intending to be legally bound, has
executed this Guaranty as of the date first above written with the intention
that this Guaranty shall constitute a sealed instrument.
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THE
FINISH LINE MA, INC.
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By:
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/s/ Xxxx X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Chief
Administrative Officer and Secretary
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XXXXX,
LLC
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By:
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/s/ Xxxx X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Chief
Administrative Officer and
Secretary
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