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EXHIBIT 99.h
GUARANTY OF PAYMENT
THIS GUARANTY OF PAYMENT is made as of June 27, 1994 by FRUIT OF THE
LOOM, INC., a Delaware corporation (the "Guarantor"), in favor of NATIONSBANK
OF FLORIDA, N.A. a national banking corporation (the "Lender").
W I T N E S S E T H
WHEREAS, Lender has been requested to make a loan in the sum of U.S.
$12,000,000.00 (the "Loan") to Xxxxxxx X. Xxxxxx (the "Borrower"), evidenced by
a Revolving Promissory Note dated as of June 27, 1994 (the "Note"); and
WHEREAS, the Note and all other instruments and documents executed by
Borrower or Guarantor in favor of Lender in connection with the Loan are
referred to herein as the "Credit Documents", and the Loan and all other
debts, obligations and liabilities of Borrower to Lender under the Credit
Documents from time to time are referred to herein as the "Obligations";
WHEREAS, Guarantor will be benefitted if Borrower borrows said sum from
Lender because Guarantor is receiving from Borrower, as consideration for
execution of this Guaranty, a second priority pledge and security interest
(subordinate to the rights of Lender) in certain stock owned by Borrower and
defined as the "Securities" in that certain General Security Agreement made by
Borrower to Lender dated as of the 18th day of December, 1992, as amended, and
because Guarantor otherwise has or may have other interests, directly or
indirectly, in the transactions to be funded with the Loan; and
WHEREAS, Lender has declined to make the Loan to Borrower unless
Guarantor unconditionally guarantees the payment of the obligations;
NOW, THEREFORE, in consideration of Lender's agreement to advance Loan
funds to Borrower, Guarantor hereby unconditionally guarantees to Lender, its
successors and assigns, the prompt and full payment of the Obligations.
1. Guarantor shall pay any Obligations that are not paid as and when
required of Borrower under the Credit Documents (including the expiration of
any applicable grace period set forth therein). Each such sum may be recovered
in a separate action as it comes due, or, in the event that Lender shall
accelerate the maturity of the Obligations in accordance with the Credit
Documents, Guarantor shall promptly pay all sums which become due and payable
on such acceleration of maturity. Lender shall have the absolute right to
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seek one or more money judgments for each cause of action based solely upon
this Guaranty.
2. The obligations of Guarantor under this Guaranty are direct,
unconditional and completely independent of the obligations of Borrower.
Lender may exercise any of its rights under this Guaranty, including without
limitation bringing and prosecuting any action against Guarantor, without any
requirement that Lender join Borrower as a party to the action, or proceed
against any security then held by Lender for the Obligations, or notify or make
demand upon or proceed against or exhaust any other remedy against Borrower,
any other guarantor of the Obligations, or any other person who might have
become liable for the Obligations. Guarantor hereby waives and renounces all
benefits of discussion and division.
3. The liability assumed under this Guaranty shall not be affected by
Lender's acceptance of any settlement or composition offered by Borrower or
decreed with respect to Borrower by any court, either in liquidation,
readjustment, receivership, bankruptcy or otherwise, except only to the extent
that such settlement has resulted in actual payment of a part of the
Obligations, and then only to that extent. This Guaranty shall continue and
remain in full force and effect (or shall be reinstated, as the case may be) in
the event that all or part of any payment made by Borrower in connection with
the Obligations is recovered from Lender as a preference, fraudulent transfer
or similar voidable payment under any bankruptcy or insolvency law.
4. This instrument in a continuing, binding, absolute and unconditional
guaranty of payment which shall remain in full force and effect until actual
payment in full of the Obligations or until terminated by written agreement
between Lender and Guarantor.
5. Guarantor hereby waives any and all defenses to any action or
proceeding brought to enforce this Guaranty or any part of this Guaranty, except
the single defense that the sum claimed has actually been paid to Lender.
Without limiting the foregoing in any way, but merely by way of illustration,
Guarantor hereby specifically waives all technical, dilatory or nonmeritorious
defenses, and any defense predicated upon:
(a) Incapacity, disability or lack of authority on the part of
Borrower or any other person; or
(b) Any change or modification or extension or waiver of any term of
the Obligations or any Credit Document, or any indulgence or forbearance or
delay on the part of Lender in the enforcement of any term of the Obligations
or any Credit Document, or any other or further dealings or agreements between
Lender and Borrower or between Lender and any other guarantors or sureties for
all or any part of the Obligations; or
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(c) Any failure to perfect, release of, substitution for, addition
to, increase in or impairment of all or any part of the security for the
Obligations or this Guaranty, whether for valuable consideration or otherwise;
or
(d) The fact that there may now or hereafter be other guarantors or
sureties liable for all or any part of the Obligations, or that solvent persons
other than Borrower or Guarantor may have undertaken the payment of all or any
part of the Obligations, whether in connection with any transfer of any
collateral for the Obligations or otherwise; or
(e) The full or partial release or discharge of Borrower or any other
present or future guarantors or sureties for all or any part of the
Obligations; or
(f) Any other act or omission by Lender or failure by Lender to
proceed promptly or diligently, or any other matter which might, but for this
waiver by Guarantor, be deemed a legal or equitable release or discharge of a
surety or guarantor, regardless of whether such act or omission or failure or
other matter varies or increases the risk of Guarantor or affects or impairs
the rights or remedies of Guarantor.
6. Lender shall not be required to notify Guarantor of (a) Lender's
acceptance of this Guaranty, (b) any disbursements of funds by or on behalf of
Lender, (c) any modification of any other document executed by Borrower or any
other guarantor or surety in connection with the Obligations, nor (d) any
default by Borrower under the Obligations or by any other guarantor or surety
for all or any part of the Obligations. Guarantor hereby waives presentment
for payment, demand, protest, notice of protest or dishonor, notice of default,
and any other notice or demand whatsoever before Lender commences to enforce
its rights under this Guaranty, whether by judicial proceedings or in any other
manner. Lender shall have no obligation whatsoever to disclose to Guarantor
any information Lender may now possess or hereafter obtain about Borrower,
regardless of whether (i) Lender has reason to believe that such information
materially increases the risk of Guarantor beyond that which Guarantor intends
to assume hereunder, or (ii) Lender has reason to believe that such information
is unknown to Guarantor, or (iii) Lender has a reasonable opportunity to
communicate such information to Guarantor; Guarantor understands and agrees
that Guarantor is fully responsible for being and keeping informed of the
financial condition of Borrower and of all circumstances bearing on the risk of
failure to repay the Obligations.
7. Until the Obligations shall have actually been paid in full,
Guarantor hereby (a) agrees not to seek reimbursement or repayment from
Borrower or the liquidation of any security for the Obligations by reason of
having paid monies pursuant to this
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Guaranty, (b) waives any right to enforce any remedy as subrogees of Lender or
its successors and assigns or to participate in the Obligations or in any
security for the Obligations, (c) agrees not to seek or accept repayment or
reimbursement from Borrower of any sums advanced, contributed or lent to
Borrower by Guarantor, all of which are hereby subordinated and postponed to
the full repayment of the Obligations, and (d) agrees not to seek or accept any
distributions or dividends by Borrower.
8. Guarantor agrees to pay any expenses incurred by Lender in the
collection or enforcement of this Guaranty, including reasonable costs and
attorney's fees (including those incurred for appellate or administrative or
bankruptcy proceedings) in the event that Lender shall be obliged to resort to
the courts or require the services of an attorney to collect under this
Guaranty.
9. The rights and authority granted to Lender in this Guaranty shall
inure to the benefit of its successors and assigns, and the agreements by
Guarantor contained in this Guaranty shall bind Guarantor and Guarantor's
successors and assigns, jointly and severally.
10. Lender may assign this Guaranty, in whole or as to such part which
has not been realized upon, to any assignee(s) or transferee(s) of the
Obligations without prior notice to or the consent of Guarantor.
11. Time shall be of the essence with respect to all of the
provisions of this Guaranty.
12. Any provision of this Guaranty which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction only, be ineffective only to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
13. Whenever used in this Guaranty and unless the context otherwise
requires, words in the singular include the plural, words in the plural include
the singular, and pronouns of any gender include the other genders. All
references in this Guaranty to numbered paragraphs refer to the paragraphs of
this Guaranty, unless such reference specifically identifies another document.
All references in this Guaranty to sums expressed in dollars refer to the
lawful currency of the United States of America, unless such reference
specifically identifies another currency.
14. This Guaranty shall be governed by, and construed and enforced in
accordance with, the laws of the State of Florida, except that federal law
shall govern to the extent that it may permit Lender to charge interest from
time to time at a rate greater than may be permissible under Florida law.
Nothing con-
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tained in this Guaranty shall be construed as obligating Guarantor in any way
to be responsible for interest in excess of the maximum rate permitted by
applicable law.
15. Guarantor hereby WAIVES TRIAL BY JURY and submits to the
jurisdiction of the state and federal courts in the State of Florida for
purposes of any action arising from or growing out of this Guaranty, and
further agrees that the venue of any such action may be laid in Broward County
and that (in addition to any other method provided by law for service of
process) service of process in any such action may be made on Guarantor by the
delivery of the process to Katten, Muchin & Zavis, Attn: Xxxxx Xxxxxxxxx, Esq.,
whose present address is 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, whom Guarantor hereby appoints as Guarantor's agent for service of
process. Nothing contained in this Guaranty, however, shall be deemed to
constitute, or to imply the existence of, any agreement by Lender to bring any
such action only in said courts or to restrict in any way any of Lender's
remedies or rights to enforce the terms of this Guaranty as, when and where
Lender shall deem appropriate, in its sole discretion.
16. If for the purposes of obtaining judgment against Guarantor in any
court it becomes necessary to convert a sum due in U.S. dollars into another
currency, then the rate of exchange used shall be that at which Lender could
purchase U.S. dollars with the other currency in accordance with normal banking
procedures on the business day preceding the day on which final judgment is
obtained. Notwithstanding any judgment in such other currency, the obligations
of Guarantor hereunder shall be discharged only to the extent that (i) Lender
can purchase U.S. dollars with the other currency in accordance with normal
banking procedures on the business day following Lender's receipt of any such
sum adjudged to be due in the other currency, and (ii) Lender can remit the
purchased U.S. dollars to its office at its address for notices set forth in
the Credit Documents. If the U.S. dollars so purchased and remitted are less
than the sum owing to Lender in U.S. dollars before the judgment, then
Guarantor agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify Lender on demand against such loss.
17. In order to induce Lender to extend credit to Borrower, and knowing
that Lender shall rely on the following warranties and representations,
Guarantor represents and warrants to Lender that: (a) if Guarantor is a natural
person, then Guarantor has full legal capacity; (b) if Guarantor is a business
entity, then (i) Guarantor is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its creation, has full power and
authority to make this Guaranty in favor of Lender, and has duly authorized the
execution, delivery and performance of this Guaranty by all necessary actions,
and (ii) the execution, delivery and performance of this Guaranty do not and
shall not violate any provision of Guarantor's governing or constituent
documents; (c)
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Guarantor shall be benefitted if Lender extends credit to Borrower; (d) the
execution, delivery and performance of this Guaranty do not and shall not
contravene any applicable law, nor result in a breach of or default under any
other agreement to which Guarantor is a party or by which Guarantor may be
bound or affected; (e) except as otherwise previously or concurrently disclosed
to Lender in writing or in any filing made by Guarantor with the Securities and
Exchange Commission, there are no material suits, actions or proceedings
pending or threatened against or affecting Guarantor before any court of law or
equity or any administrative board or tribunal or governmental authority; (f)
Guarantor is not in material default under the terms of any other indebtedness
or obligation of Guarantor or with respect to any order, writ, injunction,
judgment, decree or demand of any court or tribunal or governmental authority;
and (g) Guarantor has received good, valuable and adequate consideration from
Borrower for the execution and delivery to Lender of this Guaranty.
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18. GUARANTOR, BY ITS EXECUTION HEREOF, AND LENDER, BY ITS
ACCEPTANCE HEREOF, EACH AGREES NOT TO SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE (WHETHER AT LAW OR
IN EQUITY) BASED UPON OR ARISING OUT OF THIS GUARANTY, THE LOAN OR ONE OR MORE
OF THE CREDIT DOCUMENTS OR ANY OTHER DOCUMENTS, INSTRUMENTS OR AGREEMENTS
EXECUTED OR ENTERED INTO IN CONNECTION WITH THIS GUARANTY, THE LOAN OR THE LOAN
DOCUMENTS. NEITHER ENTITY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A
JURY TRIAL HAS BEEN WAIVED, WITH ANY ACTION IN WHICH A JURY TRIAL CANNOT BE OR
HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS WAIVER HAVE BEEN FULLY DISCUSSED BY
GUARANTOR AND LENDER, AND THE PROVISIONS HEREOF SHALL BE SUBJECT TO NO
EXCEPTIONS. GUARANTOR AND LENDER HAVE HAD THE OPPORTUNITY TO HAVE THIS WAIVER
REVIEWED BY LEGAL COUNSEL OF THEIR CHOICE. NO SUCH ENTITY HAS IN ANY WAY AGREED
WITH OR REPRESENTED TO THE OTHER THAT THE PROVISIONS OF THIS WAIVER WILL NOT BE
FULLY ENFORCED IN ALL INSTANCES.
THIS WAIVER IS BINDING UPON AND SHALL INURE TO THE BENEFIT OF LENDER
AND GUARANTOR, AND THEIR RESPECTIVE SUCCESSORS, ASSIGNS, PARTNERS, PRINCIPALS,
AGENTS, SHAREHOLDERS, OFFICERS, DIRECTORS, LEGAL AND PERSONAL REPRESENTATIVES,
EXECUTORS, ADMINISTRATORS, HEIRS AND OTHER TRANSFEREES.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty under seal on
June 27, 1994, to be effective on the date first written above.
Signed, sealed and delivered
in the presence of:
FRUIT OF THE LOOM, INC., a
Delaware corporation
By:
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Name: Xxxx X. Xxxxxx
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Title: Vice President
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[CORPORATE SEAL]
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STATE OF ILLINOIS )
) SS:
COUNTY OF XXXX )
The foregoing instrument was acknowledged before me this 29th day of
June, 1994 by Xxxx X. Xxxxxx as Vice President of FRUIT OF THE LOOM, INC., a
Delaware corporation, on behalf of the corporation. He/she/they personally
appeared before me, is/are personally known to me or produced _________________
_____________ as identification, and [did] [did not] take an oath.
Notary: /s/ Xxxxxxx X. Xxxxxxxx
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Print Name: Xxxxxxx X. Xxxxxxxx
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[NOTARIAL SEAL] Notary Public, State of Illinois
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My commission expires: Jan. 28, 1998
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