Exhibit 10.a.
AMENDED AND RESTATED GUARANTY
This Amended and Restated Guaranty ("Amended and Restated
Guaranty") is executed as of the 9th day of May, 1997 by Xxxxxx-Xxxxxx Company,
a Virginia corporation (the "Guarantor"), in favor of Beneficial National Bank
USA, a national banking association ("BNB USA").
PRELIMINARY STATEMENTS
WHEREAS, Xxxxxx, Inc., a Georgia corporation ("Xxxxxx"), and
BNB USA are parties to a Merchant Agreement dated as of May 15, 1992, which was
amended from time to time (the "Original Merchant Agreement");
WHEREAS, Xxxxxx is a wholly-owned subsidiary of the Guarantor;
WHEREAS, the Guarantor guaranteed the payment obligations of
Xxxxxx under Section 9(D) of the Original Merchant Agreement (the "Original
Guarantee");
WHEREAS, the Original Merchant Agreement was amended and
restated as of May 9, 1997 (the "Amended and Restated Merchant Agreement") by
Xxxxxx, the Guarantor, BNB USA and HMY RoomStore, Inc., a Virginia corporation
("RoomStore");
WHEREAS, RoomStore is a wholly-owned subsidiary of the
Guarantor;
WHEREAS, the Guarantor has agreed to guarantee the payment
obligations of Xxxxxx and RoomStore under Section 9(D) of the Amended and
Restated Merchant Agreement;
WHEREAS, the Guarantor and BNB USA desire to amend and
restate the Original Guarantee;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the Guarantor, the
Guarantor agrees as follows:
Definitions. Unless otherwise defined in this Amended and Restated
Guaranty, all defined terms used in this Amended and Restated Guaranty shall
have the meanings ascribed to such terms in the Amended and Restated Merchant
Agreement.
Guaranty of Obligations. The Guarantor unconditionally guarantees the
full and prompt payment when due of all of the payment obligations of Xxxxxx and
RoomStore under Section 9(D)(3) of the Amended and Restated Merchant Agreement
(pursuant to which Xxxxxx and RoomStore are obligated to repurchase certain
Recourse Accounts), under Section 9(D)(4) of the Amended and Restated Merchant
Agreement (pursuant to which Xxxxxx and RoomStore are obligated to pay certain
expenses associated with the collection of the Recourse Accounts) and under
Section 9(D)(7) of the Amended and Restated Merchant Agreement (pursuant to
which Xxxxxx and RoomStore are obligated to establish and maintain a reserve or
secure and maintain a letter of credit in favor of BNB USA) (collectively, the
"Obligations").
Payment of Costs and Expenses. The Guarantor shall pay all reasonable
costs and expenses, including, without limitation, all court costs and
attorney's fees and expenses, paid or incurred by BNB USA in connection with the
enforcement of the obligations of the Guarantor under this Amended and Restated
Guaranty.
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Validity of Obligations; Irrevocability. The Guarantor agrees that its
obligations under this Amended and Restated Guaranty shall be absolute and
unconditional, irrespective of (i) the validity, enforceability, discharge,
disaffirmance, settlement or compromise (by any person, including a trustee in
bankruptcy) of the Obligations, (ii) the absence of any attempt to collect the
Obligations from Xxxxxx or RoomStore, (iii) the waiver or consent by BNB USA
with respect to any provision of any instrument evidencing the Obligations, (iv)
any change of the time, manner or place of payment or performance, or any other
term of any of the Obligations, (v) any law, regulation or order of any
jurisdiction affecting any term of any of the Obligations or rights of BNB USA
with respect thereto or (vi) any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. The
Guarantor agrees that BNB USA shall be under no obligation to xxxxxxxx any
assets in favor of or against or in payment of any or all of the Obligations.
The Guarantor further agrees that, to the extent that Xxxxxx or RoomStore makes
a payment or payments to BNB USA, which payment or payments or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside and/or required to be repaid to Xxxxxx or RoomStore, or to the estate,
trustee, or receiver of Xxxxxx or RoomStore or to any other party, including,
without limitation, the Guarantor, under any bankruptcy, insolvency or similar
state or federal law, common law or equitable cause, then to the extent of such
payment or repayment, the Obligation or part thereof which has been paid,
reduced or satisfied by such amount shall be reinstated and continued in full
force and effect as of the date such initial payment, reduction or satisfaction
occurred. The Guarantor waives all set-offs and counterclaims and all
presentments, demands for performance, notices of dishonor and notices of
acceptance of this Amended and Restated Guaranty. The Guarantor agrees that its
obligations under this Amended and Restated Guaranty shall be irrevocable.
Rights of Set-Off. The Guarantor hereby authorizes BNB USA at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (whether general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by BNB USA to or for the credit or the account of the Guarantor against any and
all of the obligations of the Guarantor now or hereafter existing under this
Amended and Restated Guaranty to BNB USA. The Guarantor acknowledges that the
rights of BNB USA described in this Section 5 are in addition to other rights
and remedies (including, without limitation, other rights of set-off) BNB USA
may have.
Successors and Assigns. This Amended and Restated Guaranty shall bind
the Guarantor and its successors and assigns and shall inure to the benefit of
and be enforceable by BNB USA and its respective successors and assigns.
Severability. If any term or provision of this Amended and Restated
Guaranty shall be determined to be illegal or unenforceable to any extent with
respect to any person or circumstance, the enforceability of such term or
provision shall not be affected with respect to any other person or
circumstance, and such term or provision shall be enforceable to the fullest
extent permitted by applicable law.
Governing Law. This Amended and Restated Guaranty shall be governed
by and construed in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, this Amended and Restated Guaranty has
been duly executed by the Guarantor as of the date first written above.
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XXXXXX-XXXXXX COMPANY
By /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President,
Treasurer
and Secretary
Acknowledged and accepted
as of this 27th day of
June, 1997
BENEFICIAL NATIONAL BANK, USA
By /s/ Signature Unreadable
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Name:
Title:
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