Exhibit 10.5
AMENDED AND RESTATED GUARANTY AGREEMENT
This Amended and Restated Guaranty Agreement (as such agreement may
be amended, restated, or otherwise modified from time to time, this "Guaranty
Agreement"), is executed and delivered effective as of September 7, 2004, by
each of the undersigned Guarantors with respect to the indebtedness,
liabilities, and obligations of the Borrowers under the Credit Agreement
defined hereinbelow, as follows:
Definitions:
The following terms shall have the following meanings where used in
this Guaranty Agreement:
"Borrower" and "Borrowers" have the meanings specified for such terms
in the Credit Agreement; provided that as used herein with respect to
each respective Guarantor that is a Borrower, the terms "Borrower"
and "Borrowers" excludes such Guarantor.
"Collateral Agent" has the meaning specified for such term in the
Credit Agreement.
"Credit Agreement" means the certain Second Amended and Restated
Credit Agreement, dated as of even date herewith, among the
Borrowers, the Guarantor, each other Person from time to time Party
thereto, the Collateral Agent, Bank of America, N.A., as the
Revolving Agent, Jewelry Investors II, L.L.C., as the Term Agent, and
the Lenders, as such agreement may be amended, restated, or otherwise
modified from time to time.
"Existing Credit Agreement" has the meaning specified in the Recitals
below.
"Existing Guaranty Agreement" has the meaning specified in the
Recitals below.
"Guaranteed Obligations" means all Total Obligations and includes all
present and future loans, advances, liabilities, obligations,
covenants, duties, and debts owing by the Borrowers, or any of them,
to any Agent and/or any Lender, arising under or pursuant to the
Credit Agreement or any of the other Credit Documents, whether or not
evidenced by any note, or other instrument or document, whether
arising from an extension of credit, opening of a letter of credit,
acceptance, loan, guaranty, indemnification, or otherwise, whether
direct or indirect, absolute or contingent, due or to become due,
primary or secondary, as principal or guarantor, and including all
principal, interest, charges, expenses, fees, attorneys' fees, filing
fees, and any other sums chargeable to any Borrower hereunder or
under any of the other Credit Documents, including without
limitation, (a) all reimbursement obligations, debts, liabilities,
and other obligations now or hereafter arising from or in connection
with the Letters of Credit and (b) all debts, liabilities, and
obligations now or hereafter arising from or in connection with Bank
Products.
"Guarantor" means (a) each of the undersigned Subsidiaries of
Xxxxxxxx'x Inc. and (b) each other Person, if any, that becomes a
party to this Guaranty Agreement after the Closing Date, by joinder
or otherwise, pursuant to the terms of the Credit Agreement, and in
each such case their respective successors and assigns, and
"Guarantors" means all of such Persons, collectively.
"Lenders" means, collectively, each financial institution from time
to time party to the Credit Agreement as a "Lender" as defined
therein, and their respective successors and assigns.
Terms defined in the Credit Agreement, wherever used herein, unless otherwise
defined herein, shall have the same meanings in this Guaranty Agreement as are
set forth in the Credit Agreement, and each of such definitions is
incorporated herein by reference. Each Guarantor expressly acknowledges that
it has read and is familiar with all such incorporated definitions and agrees
that they shall have the same effect and enforceability in this Guaranty
Agreement as though set forth herein at length.
Recitals:
A. The Guarantors, the Borrowers, Bank of America, N.A., in its
capacity as administrative agent, and certain lenders were parties, whether by
joinder or otherwise, to that certain Amended and Restated Credit Agreement,
dated as of August 28, 2002 (as such agreement has been amended or otherwise
modified, the "Existing Credit Agreement"). Pursuant to the Existing Credit
Agreement, the Guarantors were party to, whether by joinder or otherwise, a
Guaranty Agreement dated as of August 28, 2002 (the "Existing Security
Agreement").
B. As of the date hereof the Guarantors, the Borrowers, the Agents,
and the lenders party thereto are entering into the Credit Agreement, which
amends and restates the Existing Credit Agreement in its entirety, and which
provides for Loans by the Lenders to the Borrowers and for the issuance of
Letters of Credit on the terms and conditions prescribed therein.
C. This Guaranty Agreement is required by the Credit Agreement, and
each Guarantor's execution and delivery hereof is a condition (among other
conditions) to the making of the Loans and the issuance of the Letters of
Credit under the Credit Agreement.
D. Each Guarantor has determined that (i) it will directly and
indirectly benefit from the availability of financing to the Borrowers under
the Credit Agreement and under the other transactions evidenced by and
contemplated in the Credit Documents, (ii) it will benefit, directly and
indirectly, from executing and delivering this Guaranty Agreement, (iii) it is
in such Guarantor's best interest, and within its corporate purpose, to
execute and deliver and, if called upon to do so, to perform its obligations
under this Guaranty Agreement, and (iv) execution and delivery of this
Guaranty Agreement and the other Credit Documents to which such Guarantor is a
party is necessary or convenient to the conduct, promotion, and attainment of
the business of such Guarantor.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, each Guarantor jointly and
severally hereby agrees as follows:
1. Guaranty of Guaranteed Obligations. This Guaranty Agreement is
executed by each Guarantor pursuant to the Credit Agreement and is for the
benefit of the Agents and the Lenders. As an inducement the Lenders to make
the Loans and extend and continue to extend credit and other financial
accommodations to the Borrowers (in the case of any Guarantor that is a
Borrower, other than to such Guarantor) under the Credit Documents and to
cause the Issuing Lender to provide Letters of Credit as provided by the
Credit Agreement (in the case of any Guarantor that is a Borrower, other than
for the account of such Guarantor), each Guarantor, for value received, does
hereby jointly and severally, unconditionally, irrevocably, and absolutely
guarantee the prompt and full payment and performance of the Guaranteed
Obligations when due and at all times thereafter; provided, however, that each
Guarantor's liability under this Guaranty Agreement shall be limited to a
maximum aggregate amount equal to the largest amount that would not render its
obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under any Requirement of Law, in each case after giving effect to
all other liabilities of such Guarantor, contingent or otherwise, that are
relevant under such laws, and after giving effect to the value, as assets (as
determined under the applicable provisions of such laws) of any rights of such
Guarantor to contribution, indemnity, and/or subrogation from any Borrower or
other Person pursuant to any Requirement of Law or any agreement providing for
an equitable allocation among such Guarantor, any Borrower, and any such other
Person of their respective obligations thereunder.
2. Nature of Guaranty. This Guaranty Agreement is and shall be an
absolute, unconditional, irrevocable, and continuing unlimited guaranty of
payment, and not solely of collection. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
the Credit Agreement and the other Credit Documents, without setoff or
counterclaim, and regardless of any Requirement of Law now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agents and the Lenders with respect thereto. The Guaranteed Obligations may be
increased, reduced, or paid in full at any time and from time to time without
affecting the liability or obligation of any Guarantor under this Guaranty
Agreement with respect to all Guaranteed Obligations, whenever incurred or
arising. All Guaranteed Obligations now or hereafter arising shall be
conclusively presumed to have been made or acquired in acceptance hereof. Each
Guarantor shall be liable, jointly and severally, with the Borrowers and any
other Person now or hereafter obligated in respect of the Guaranteed
Obligations, or any portion thereof. It is the intention of each Guarantor and
the Agents and the Lenders that such Guarantor's indebtedness, liabilities,
and obligations hereunder shall not be discharged except by such Guarantor's
full and complete payment and performance of such indebtedness, liabilities,
and obligations and then only to the extent of such payment and performance
(to the extent not otherwise satisfied by the Borrowers or any other Person
now or hereafter obligated in respect of the Guaranteed Obligations).
3. Representations and Warranties. Each of the representations and
warranties in the Credit Agreement relating to each Guarantor is incorporated
by reference and restated herein. In addition, each Guarantor hereby
represents and warrants to the Agents and the Lenders as follows:
(a) Such Guarantor has received and will receive a direct
and indirect material benefit from the transactions evidenced by and
contemplated in the Credit Agreement and the other Credit Documents.
This Guaranty Agreement is given by such Guarantor in furtherance of
the direct and indirect business interests and corporate purposes of
such Guarantor, and is necessary to the conduct, promotion, and
attainment of the businesses of the Borrowers and such Guarantor. The
value of the consideration received and to be received by such
Guarantor is reasonably worth at least as much as the liability and
obligation of such Guarantor hereunder.
(b) Such Guarantor is currently informed of the financial
condition of each Borrower and any and all other Persons obligated in
respect of the Guaranteed Obligations and of all other circumstances
which a diligent inquiry would reveal and which bear upon the risk of
nonpayment of the Guaranteed Obligations. Such Guarantor has read and
understands the terms and conditions of the Credit Documents. Such
Guarantor is familiar with, and has had an opportunity to review the
books and records regarding, the financial condition of each Borrower
and is familiar with the value of any and all property intended to be
security for the payment of all or any part of the Guaranteed
Obligations; provided, however, such Guarantor is not relying on such
financial condition or the existence or value of any such security as
an inducement to enter into this Guaranty Agreement. Such Guarantor
has adequate means to obtain, on a continuing basis, information
concerning the financial condition of each Borrower. Such Guarantor
has not been induced to enter into this Guaranty Agreement on the
basis of a contemplation, belief, understanding, or agreement that
any Person other than such Guarantor will be liable to pay the
Guaranteed Obligations. Neither any Agent nor any Lender has made any
representation, warranty, or statement to such Guarantor in order to
induce such Guarantor to execute this Guaranty Agreement.
4. Covenants. Each Guarantor agrees that, for so long as any of the
Guaranteed Obligations or any part thereof is outstanding, such Guarantor will
comply with all covenants set forth in the Credit Agreement which are
applicable to such Guarantor.
5. Obligations Not Impaired. Each Guarantor agrees that its
obligations hereunder shall not be released, diminished, impaired, reduced, or
affected by the occurrence of any one or more of the following events: (a)
lack of organizational authority of any Borrower; (b) any receivership,
insolvency, bankruptcy, or other proceedings affecting any Borrower, any other
Credit Party, or any of their respective property; (c) partial or total
release or discharge of any Borrower or other Person from the performance of
any obligation contained in any instrument or agreement evidencing, governing,
or securing all or any part of the Guaranteed Obligations, whether occurring
pursuant to any Requirement of Law or otherwise; (d) any change in the time,
manner, or place of payment of, or in any other term of, or any increase in
the amount of, all the Guaranteed Obligations, or any portion thereof, or any
other amendment or waiver of any term of, or any consent to departure from any
requirement of, any of the Credit Documents; (e) the taking or accepting of
any collateral security for all or any part of the Guaranteed Obligations,
this Guaranty Agreement, or any other Guaranty; (f) the taking or accepting of
any other Guaranty for all or any part of the Guaranteed Obligations; (g) any
failure to acquire, perfect, or continue any Lien on Collateral securing all
or any part of the Guaranteed Obligations or on any other property securing
this Guaranty Agreement; (h) any exchange, release, or subordination of any
Lien on any Collateral, or any release, amendment, waiver, or subordination of
any term of any guaranty of the Guaranteed Obligations or any other impairment
of any collateral security or guaranty now or hereafter securing all or any
part of the Guaranteed Obligations; (i) any failure to dispose of any
collateral security at any time securing all or any part of the Guaranteed
Obligations or this Guaranty Agreement in a commercially reasonable manner or
as otherwise may be required by any Requirement of Law; (j) any merger,
reorganization, consolidation, or dissolution of any Borrower, the Guarantor,
any other Credit Party, or any other guarantor of the Obligations, any sale,
lease, or transfer of any or all of the assets of any Borrower, the Guarantor,
any other Credit Party, or any other guarantor of the Obligations, or any
change in name, business, organization, location, composition, structure, or
organization of any Borrower, the Guarantor, or any other guarantor of the
Obligations; (k) any Change of Control or any other change in the shareholders
of any Borrower, the Guarantor, any other Credit Party, or any other guarantor
of the Obligations; (l) any invalidity or unenforceability of or defect or
deficiency in any of the Credit Documents; (m) avoidance or subordination of
the Guaranteed Obligations, or any portion thereof, (n) the unenforceability
of all or any part of the Guaranteed Obligations against any Borrower because
any interest contracted for, charged, or received in respect of the Guaranteed
Obligations exceeds the amount permitted by any Requirement of Law; (o) any
waiver, consent, extension, forbearance, or granting of any indulgence by the
Agents or the Lenders with respect to the Guaranteed Obligations or any
provision of any of the Credit Documents; (p) any delay in or lack of
enforcement of any remedies under the Credit Documents; (q) the act of
creating all or any part of the Guaranteed Obligations is ultra xxxxx, or the
officers or other representatives creating all or any part of the Guaranteed
Obligations acted in excess of their authority; (r) any election of remedies
by any of the Agents or any of the Lenders; (s) any of the Credit Documents
were forged; (t) the election by any of the Agents or any of the Lenders in
any proceeding under the Bankruptcy Code of the application of Section
1111(b)(2) thereof; (u) any borrowing or grant of a security interest by any
Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy Code;
(v) the disallowance in bankruptcy of all or any portion of the claims of any
of the Agents or any of the Lenders for payment of any of the Guaranteed
Obligations; or (w) any other circumstance which might otherwise constitute a
legal or equitable discharge or defense available to any Borrower or any
Guarantor (other than that the Guaranteed Obligations shall have been
indefeasibly paid and performed in full).
6. Consent and Waiver.
(a) Each Guarantor hereby waives to the fullest extent
permitted by applicable Requirements of Law: (i) notice of acceptance
of this Guaranty Agreement; (ii) notice of any Revolving Loans,
Letters of Credit, or other financial accommodations made or extended
under the Credit Documents or the creation or existence of any
Guaranteed Obligations; (iii) notice of the amount of the Guaranteed
Obligations, subject, however, to such Guarantor's right to make
inquiry of the Agents to ascertain the amount thereof at any
reasonable time; (iv) notice of any adverse change in the financial
condition of any Borrower or any other Person or of any other fact
that might increase or otherwise change such Guarantor's risk with
respect to the Guaranteed Obligations, any Borrower, or any other
Person under this Guaranty Agreement; (v) notice of presentment for
payment, demand, protest and notice thereof, notice of intent to
accelerate, notice of acceleration, notice of dishonor, diligence or
promptness in enforcement, and indulgences of every kind as to any
promissory notes or other instruments among the Credit Documents;
(vi) notice of any of the events or circumstances enumerated in
paragraph 5 hereof, and all other notices and demands to which such
Guarantor might otherwise be entitled (except if such notice is
specifically required to be given to such Guarantor hereunder or
under any of the Credit Documents to which such Guarantor is a
party); (vii) any requirement that any of the Agents or any of the
Lenders protect, secure, perfect, or insure the Collateral Agent's
Lien or any other Lien on any Collateral or other property as
security for the Guaranteed Obligations or exhaust any right or take
any action against any Borrower or any other Person or any Collateral
or any other property subject to a Lien; (viii) the benefit of any
statute of limitation applicable to enforcement of the Guaranteed
Obligations, or any portion thereof, or any Liens in the Collateral
or other property as security for the Guaranteed Obligations or this
Guaranty Agreement; (ix) all rights by which such Guarantor might be
entitled to require suit on an accrued right of action in respect of
any of the Guaranteed Obligations or require suit against any
Borrower or any other Person; or (x) any other defense of any
Borrower or any other Person (other than that the Guaranteed
Obligations shall have been indefeasibly paid and performed in full).
(b) Each Guarantor hereby waives and agrees not to assert
against the Agent or any Lender, to the extent allowed by any
Requirement of Law: (i) any defense, setoff, counterclaim, or claim
of any kind or nature available to any Borrower or any other Person
against any Agent or any Lender, arising directly or indirectly from
the present or future lack of perfection, sufficiency, validity, or
enforceability of the Guaranteed Obligations or any Lien in the
Collateral or any other property as security for the Guaranteed
Obligations; or (ii) any right or defense arising by reason of any
claim or defense based upon an election of remedies by any Agent or
any Lender under any Requirement of Law.
(c) The Agents shall have the right to seek recourse against
each Guarantor to the fullest extent provided for herein, and no
election by any Agent to proceed in one form of action or proceeding,
or against any party, or on any obligation, shall constitute a waiver
of such Agent's right to proceed in any other form of action or
proceeding or against other parties unless the Agents have expressly
waived such right in writing. Without limiting the foregoing, no
action or proceeding by any Agent or any Lender under any document or
instrument evidencing the Guaranteed Obligations shall serve to
diminish the liability of any Guarantor under this Guaranty Agreement
except to the extent that the Agents and the Lenders finally and
unconditionally shall have realized indefeasible payment in full of
the Guaranteed Obligations.
(d) Each Guarantor waives, and agrees that its liability
hereunder shall not be affected by, any neglect, delay, omission,
failure, or refusal of any Agent or any Lender to (i) exercise or
properly or diligently exercise any right or remedy with respect to
any or all of the Guaranteed Obligations or the collection thereof or
the Collateral Agent's Liens or any Collateral or other security for
or Guaranty of the Guaranteed Obligations, or any portion thereof,
(ii) take or prosecute, or properly or diligently take or prosecute,
any action for the collection of any or all of the Guaranteed
Obligations against any Borrower, such Guarantor, the other Credit
Parties, or any other Person in respect of any or all of the
Guaranteed Obligations, (iii) foreclose or prosecute, or properly or
diligently foreclose or prosecute, any action in connection with any
agreement, document or instrument or arrangement evidencing,
securing, or otherwise affecting all or any part of the Guaranteed
Obligations, or (iv) mitigate damages or take any other action to
reduce, collect, or enforce the Guaranteed Obligations;
(e) The Agents may at any time, without the consent of or
notice to any Guarantor (but otherwise subject to any requirement for
consent of any or all of the Lenders as may be required by the Credit
Agreement), without incurring responsibility to any Guarantor and
without impairing, releasing, reducing, or affecting the obligations
of any Guarantor hereunder: (i) change the manner, place, or terms of
payment of all or any part of the Guaranteed Obligations, or renew,
extend, modify, rearrange, refinance, refund, or alter all or any
part of the Guaranteed Obligations; (ii) sell, exchange, release,
surrender, subordinate, realize upon, or otherwise deal with in any
manner and in any order any Collateral and any Lien securing all or
any part of the Guaranteed Obligations or this Guaranty Agreement or
setoff against all or any part of the Guaranteed Obligations; (iii)
neglect, delay, omit, fail, or refuse to take or prosecute any action
for the collection of all or any part of the Guaranteed Obligations
or this Guaranty Agreement or to take or prosecute any action in
connection with any of the Credit Documents; (iv) exercise or refrain
from exercising any rights against any Borrower or other Person, or
otherwise act or refrain from acting; (v) settle or compromise all or
any part of the Guaranteed Obligations and subordinate the payment of
all or any part of the Guaranteed Obligations to the payment of any
indebtedness, liabilities, or obligations which may be due or become
due to the Agents or the Lenders or others; (vi) apply any deposit
balance, fund, payment, collections through process of law or
otherwise or other property of any Borrower to the satisfaction and
liquidation of indebtedness or obligations of any of the Borrowers to
the Agents or the Lenders, if any, not guaranteed under this Guaranty
Agreement; (vii) release all or any one or more parties to any one or
more of the Credit Documents or grant other indulgences to any
Borrower or any other Person in respect thereof; (viii) amend or
modify in any manner and at any time (or from time to time) any of
the Credit Documents; (ix) partially or fully release or substitute
any guarantor, or enforce, exchange, release, or waive any security
for the Guaranteed Obligations, or any portion thereof; (x) bring
suit against any and all Persons liable or obligated in respect of
the Guaranteed Obligations, collectively together, jointly and
severally or separately, and apply any amounts obtained by the Agents
in such manner as the Agents may elect, subject to the Credit
Documents; and (xi) apply any sums paid to the Agents or the Lenders
by any Guarantor, any Borrower, any other Credit Party, or any other
Person to the Guaranteed Obligations as provided by the Credit
Documents.
(f) Should any Agent or any Lender seek to enforce the
obligations hereunder by action in any court or otherwise, each
Guarantor waives any requirement, substantive or procedural, that (i)
rights or remedies be enforced first against any Borrower , the other
Credit Parties, or any other Person liable for all or any part of the
Guaranteed Obligations, including, without limitation, that a
judgment first be rendered against any such Person, or that any
Borrower or any other such Person should be joined in such cause or
(ii) enforcement shall first be made against any Collateral or other
property which shall ever have been given to secure all or any part
of the Guaranteed Obligations or this Guaranty Agreement. Such waiver
shall be without prejudice to the Agent's right, at its option, to
proceed against any Borrower or any other Person, whether by separate
action or by joinder.
(g) If, in connection with the exercise of any of its rights
and remedies, any Agent or any Lender shall forfeit any of its rights
or remedies, including, without limitation, its right to a deficiency
judgment in respect of the Guaranteed Obligations, whether because of
any Requirement of Law pertaining to "election of remedies,"
disposition of collateral, or the like, each Guarantor hereby
consents to such action by such Agent or such Lender and waives any
claim based upon such action. Any action which results in the denial
or impairment of any such right to seek a deficiency judgment against
any Borrower or any other Person shall not impair the obligation of
such Guarantor to pay the full amount of the Guaranteed Obligations
or any other obligation of such Guarantor contained herein.
(h) Each Guarantor agrees that if, during the existence of a
Default or Event of Default, any of the Agents, for the benefit of
the Agents and the Lenders, is prevented by any Requirement of Law
from exercising its right to accelerate the maturity of all or any
portion of the Guaranteed Obligations, to collect interest thereon or
to enforce or exercise any other right or remedy with respect
thereto, or such Agent is prevented from taking any action to enforce
the Collateral Agent's Liens or any other Lien in the Collateral or
any other property as security for the Guaranteed Obligations or
realize on the Collateral, such Guarantor shall pay to the Collateral
Agent, for the account of the Agents and the Lenders, upon demand
therefor, the amount that would otherwise have been due and payable
had such rights and remedies been permitted to be exercised by the
Agents and the Lenders, as the case may be.
(i) Each Guarantor hereby assumes sole responsibility for
keeping itself informed of the financial condition of the Borrowers
and any other Person liable for all or any part of the Guaranteed
Obligations, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations or any part thereof. Each
Guarantor hereby agrees that neither any Agent nor any Lender shall
have any obligation or duty to advise such Guarantor of information
known to any of them regarding such condition or any such
circumstance.
(j) Each Guarantor consents and agrees that neither any
Agent nor any of the Lenders shall be under any obligation to marshal
any assets in favor of such Guarantor or otherwise in connection with
obtaining payment of any or all of the Guaranteed Obligations from
any Person or source.
(k) Each Guarantor agrees that to the extent permitted under
the Credit Documents and any Requirement of Law the Collateral Agent
may, at any time and from time to time in its discretion and with or
without valuable consideration, allow substitution or withdrawal of
Collateral or other security and release Collateral or other security
without impairing or diminishing the indebtedness, liabilities, or
obligations of such Guarantor hereunder.
(l) Each Guarantor agrees that neither any Agent nor any
Lender shall be liable for any failure to use diligence or care in
the collection of the Guaranteed Obligations, in the creation or
perfection of any lien, security interest or assignment intended as
security, or in preserving the liability of any Person liable or
obligated on the Guaranteed Obligations.
7. Default. During the existence of a Default or an Event of Default,
each Guarantor, jointly and severally, agrees to pay to the Collateral Agent,
for the benefit of the Agents and the Lenders, at the Collateral Agent's
office located in Los Angeles County, California or at such other place as the
Collateral Agent may specify to such Guarantor in writing, on demand by the
Collateral Agent and without further notice of dishonor and without notice of
any kind to any Borrower, such Guarantor, any other Credit Party, or any other
Person, the full unpaid amount of the Guaranteed Obligations, in immediately
available funds, or such lesser amount, if any, as may then be due and payable
and demanded by the Collateral Agent from time to time. If acceleration of the
time for payment of any amount payable by any Borrower under or with respect
to any of the Guaranteed Obligations is stayed or otherwise delayed upon the
insolvency, bankruptcy, or reorganization of any Borrower, all such amounts
otherwise subject to acceleration under the terms of the Guaranteed
Obligations shall nonetheless be payable by each Guarantor hereunder promptly
on demand by the Collateral Agent, and each Guarantor, jointly and severally,
expressly and unconditionally agrees to make such payment in full.
8. Taxes.
(a) Any and all payments by each Guarantor to any Agent or
any Lender under this Guaranty Agreement and any other Credit
Document shall be made free and clear of, and without deduction or
withholding for, any Taxes. In addition, the Guarantors shall pay all
Other Taxes.
(b) Each Guarantor agrees to indemnify and hold harmless the
Agents and each Lender for the full amount of Taxes or Other Taxes
(including any Taxes or Other Taxes imposed by any Governmental
Authority on amounts payable under this Guaranty Agreement) incurred
or paid by any Agent or any Lender and any liability (including
penalties, interest, additions to tax, and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within thirty (30) days after the date
any Agent or any Lender makes written demand therefor.
(c) If any Guarantor shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum
payable hereunder to the Agent or any Lender, then:
(i) the sum payable shall be increased as necessary
so that after making all required deductions and
withholdings (including, without limitation, deductions and
withholdings applicable to additional sums payable under
this Guaranty Agreement) such Agent or such Lender, as the
case may be, receives an amount equal to the sum it would
have received had no such deductions or withholdings been
made;
(ii) such Guarantor shall make such deductions and
withholdings;
(iii) such Guarantor shall pay the full amount
deducted or withheld to the relevant taxing authority or
other authority in accordance with any applicable
Requirement of Law; and
(iv) such Guarantor shall also pay to the
Collateral Agent, for the account of each Agent or each
Lender, at the time any payment hereunder is paid, all
additional amounts which the respective Agent or Lender
specifies as necessary to preserve the after-tax yield such
Agent or Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) Within thirty (30) days after the date of any payment by
each Guarantor of Taxes or Other Taxes, the Guarantor shall furnish
the Collateral Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment satisfactory
to the Collateral Agent.
9. No Waiver, Remedies.
(a) No failure on the part of the Agents to exercise, and no
delay or omission by the Agents in exercising, any right or remedy
hereunder shall impair such right or remedy or operate or be
construed as a waiver thereof or any acquiescence therein, nor shall
any single or partial exercise of any right or remedy hereunder
preclude any other or further exercise thereof or the exercise of any
other right or remedy hereunder. In no event shall any waiver of the
provisions of this Guaranty Agreement be effective unless the same be
in writing and signed by an officer of the Collateral Agent, and then
only in the specific instance and for the purpose given. The remedies
herein provided are cumulative and not exclusive of any remedies
provided by any Requirement of Law or any of the other Credit
Documents.
(b) Failure by any Agent or any Lender at any time or times
hereafter to require strict performance by any Borrower, any
Guarantor, any other Credit Party, or any other Person, of any of the
requirements contained in any of the Credit Documents now or at any
time, from time to time, hereafter executed and delivered by any
Borrower, any Guarantor, any other Credit Party, or any such other
Person shall not waive, affect, or diminish the right to demand
strict performance thereof, and such right shall not be deemed to
have been modified or waived by any course of conduct or knowledge of
any Agent or any Lender, or any agent, officer, or employee thereof,
respectively.
(c) No waiver of any Default or Event of Default or any
other breach, default, or requirement shall operate as a waiver of
any other Default or Event of Default or the same Default or Event of
Default on a future occasion, and no action permitted hereunder shall
in any way affect or impair any of the rights of the Agents or the
Lenders or the obligations of any Guarantor under this Guaranty
Agreement or under any of the other Credit Documents. Any
determination by a court of competent jurisdiction of the amount of
any principal and/or interest or other amount constituting any of the
Guaranteed Obligations shall be conclusive and binding on each
Guarantor irrespective of whether such Guarantor was a party to the
suit or action in which such determination was made.
10. Notice of Sale. In the event that any Guarantor is entitled to
receive any notice under the UCC, as it exists in the state governing any such
notice, of the sale or other disposition of any Collateral or other property
securing all or any part of the Guaranteed Obligations or this Guaranty
Agreement, it is agreed that at least ten (10) days notice to such Guarantor
of the time and place of any public sale, or the time after which any private
sale or other disposition may be made of any such Collateral or other
property, shall be deemed to be reasonable notice in conformity with such
requirements; provided, however, that notice given to a Guarantor in any other
reasonable manner or at any other reasonable time shall be sufficient.
11. Payment by a Guarantor. Whenever any Guarantor pays any sum which
is or may become due under this Guaranty Agreement, written notice must be
delivered to the Collateral Agent contemporaneously with such payment. Such
notice shall be effective for purposes of this paragraph when
contemporaneously with such payment the Collateral Agent receives such notice
in the manner otherwise prescribed for notices hereunder. For purposes of this
Guaranty Agreement, in the absence of such notice in compliance with the
provisions hereof, any sum received by any Agent or any Lender on account of
the Guaranteed Obligations shall be conclusively deemed paid by the Borrowers.
12. The Agents. The Agents shall have all of the rights, powers, and
benefits, for themselves and on behalf of the Lenders, as are prescribed by
the Credit Documents. Each Guarantor's performance of this Guaranty Agreement
is for the benefit of the Agents and the Lenders according to their respective
interests as provided in the Credit Agreement.
13. Cumulative Remedies; No Election. If any Guarantor is or becomes
liable or obligated for the Guaranteed Obligations, by endorsement or
otherwise, other than under this Guaranty Agreement, such liability or
obligation shall not be in any manner impaired or affected hereby, and the
rights and remedies of any Agent hereunder shall be cumulative of any and all
other rights and remedies that any Agent or any Lender may ever have against
such Guarantor. All rights and remedies of the Agents hereunder are cumulative
of each other and of every other right or remedy which any Agent or any Lender
may otherwise have at law or in equity or under any other contract or
document, and the exercise of one or more rights or remedies shall not
prejudice or impair the concurrent or subsequent exercise of other rights or
remedies. The exercise by any Agent or any Lender of any right or remedy
hereunder or under any other agreement, document, or instrument, or at law or
in equity, shall not preclude the concurrent or subsequent exercise of any
other right or remedy. This Guaranty Agreement may be enforced from time to
time as often as occasion for enforcement may arise as may be determined by
the Agents in accordance with the Credit Agreement, and it is agreed and
understood that it shall not be necessary for the Agents, in order to enforce
payment by any Guarantor, first to exercise any rights or remedies against any
Borrower, any of the other Credit Parties, the Collateral, or any other Person
under the Credit Documents or any Requirement of Law.
14. Binding Effect. This Guaranty Agreement is for the benefit of the
Agents (for the benefit of the Agents and the Lenders) and their respective
successors and assigns, and in the event of an assignment by any Agent or any
Lender, or their respective successors or assigns, of the Guaranteed
Obligations, or any part thereof, the rights and benefits hereunder, to the
extent applicable to the indebtedness, liabilities, and obligations so
assigned, shall be deemed transferred with such indebtedness, liabilities, and
obligations without necessity of further express action. This Guaranty
Agreement is binding upon each Guarantor, and its successors and assigns.
15. Contribution and Indemnification . To the extent that any
Guarantor shall repay any of the Guaranteed Obligations (any such payment
hereinafter being called an "Accommodation Payment") then the Guarantor making
such Accommodation Payment shall be entitled to contribution and
indemnification from, and be reimbursed by, each of the other Guarantors
hereunder in an amount, for each of such other Guarantors, equal to a fraction
of such Accommodation Payment, the numerator of which fraction is such other
Guarantor's Allocable Amount (as defined below) and the denominator of which
is the sum of the Allocable Amounts of all of the Guarantors. As of any date
of determination, the "Allocable Amount" of each Guarantor shall be equal to
the maximum amount of liability for Accommodation Payments which could be
asserted against such Guarantor hereunder without (a) rendering such Guarantor
"insolvent" within the meaning of Section 101 (31) of the Bankruptcy Code,
Section 2 of the Uniform Fraudulent Transfer Act ("UFTA") or Section 2 of the
Uniform Fraudulent Conveyance Act ("UFCA"), (b) leaving such Guarantor with
unreasonably small capital or assets, within the meaning of Section 548 of the
Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c)
leaving such Guarantor unable to pay its debts as they become due within the
meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or
Section 5 of the UFCA. All rights and claims of contribution, indemnification,
and reimbursement under this paragraph shall be subordinate in right of
payment to the prior payment in full of the Guaranteed Obligations. The
provisions of this paragraph shall, to the extent expressly inconsistent with
any provision in any Credit Document, supersede such inconsistent provision.
16. Subordination of Indebtedness and Liens. The payment of any and
all principal of and interest on all indebtedness of any Borrower, whether
direct, indirect, fixed, contingent, liquidated, unliquidated, joint, several,
or joint and several, now or hereafter existing, due or to become due to each
Guarantor in respect of any payment by such Guarantor under this Guaranty
Agreement (herein called the "Subordinated Debt"), shall in all respects be
subordinate and junior in right of payment and enforcement to the prior
payment and enforcement in full of the Guaranteed Obligations as provided in
this paragraph. Except as may be expressly permitted by the Credit Agreement,
no payment shall be made on or with respect to the Subordinated Debt unless
and until the Guaranteed Obligations shall have been paid and performed in
full. In the event that any Guarantor shall receive any payment on account of
the Subordinated Debt in violation of this paragraph, such Guarantor will
hold, or cause to be held (as the case may be), any amount so received in
trust for the benefit of the Collateral Agent, for the benefit of the Agents
and the Lenders, and will forthwith deliver, or cause to be delivered (as the
case may be), such payment to the Collateral Agent, in the form received, to
be applied to the Guaranteed Obligations. All Liens, if any, at any time
securing payment of all or any part of the Subordinated Debt (herein called
the "Subordinated Liens") shall be and remain inferior and subordinate to the
Liens securing payment of all or any part of the Guaranteed Obligations,
regardless of whether such Subordinated Liens presently exist or are hereafter
created or when such Subordinated Liens were created, perfected, filed, or
recorded (provided that the foregoing shall not be interpreted or deemed to
allow the existence of any such Liens to the extent otherwise prohibited by
the Credit Documents). Each Guarantor shall not exercise or enforce any
creditors' rights or remedies that it may have against any Borrower, or
foreclose, repossess, sequester, or otherwise institute any action or
proceeding (whether judicial or otherwise, including, without limitation, the
commencement of, or joinder in, any bankruptcy, insolvency, reorganization,
liquidation, receivership, or other debtor relief law) to enforce the
Subordinated Debt or any Subordinated Lien on any assets of any Borrower
unless and until the Guaranteed Obligations shall have been paid and performed
in full. The terms and provisions of this paragraph are given by each
Guarantor as additional rights and benefits to any and all other subordination
agreements heretofore, concurrently herewith, or hereafter executed by such
Guarantor to or in favor of any Agent or any Lender, and nothing in this
Guaranty Agreement shall be deemed to in any way negate or replace any other
such previous, concurrent, or subsequent subordination agreements. All
promissory notes, ledgers, and other evidences of the Subordinated Debt, and
all mortgages, deed of trusts, security agreements, assignments, and other
security documents, if any, at any time evidencing the Subordinated Liens,
shall contain a specific written notice that the indebtedness and Liens
evidenced thereby are subordinated as provided in this paragraph.
17. Right of Setoff. Each Guarantor hereby grants to each Agent and
each Lender a right of setoff upon any and all monies, securities, or other
property of such Guarantor, and the proceeds therefrom, now or hereafter held
or received by or in transit to any such Agent or any such Lender from or for
the account of such Guarantor, whether for safekeeping, custody, pledge,
transmission, collection, or otherwise, and also upon any and all general or
special deposits (to the extent not prohibited by any Requirement of Law) and
credits of such Guarantor, and any and all claims of such Guarantor against
any such Agent or any such Lender at any time existing. The right of setoff
granted pursuant to this paragraph shall be cumulative of and in addition to
any such Agent's or any such Lender's common law right of setoff.
18. Further Assurances. Upon the request of the Collateral Agent,
each Guarantor will, at any time and from time to time, duly execute and
deliver to the Collateral Agent any and all such further agreements,
documents, and instruments, and supply such additional information, as may be
necessary or advisable, in the opinion of the Collateral Agent, acting in its
own discretion or at the direction of one or more of the other Agents, to
obtain the full benefits of this Guaranty Agreement.
19. Invalid Provisions. If any provision of this Guaranty Agreement
is held to be illegal, invalid, or unenforceable under present or future laws
effective during the term hereof, such provision shall be fully severable,
this Guaranty Agreement shall be construed and enforced as if such illegal,
invalid, or unenforceable provision had never comprised a part hereof, and the
remaining provisions hereof shall remain in full force and effect and shall
not be affected by the illegal, invalid, or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid, or
unenforceable provision there shall be added automatically as a part of this
Guaranty Agreement a provision as similar in terms to such illegal, invalid,
or unenforceable provision as may be possible and be legal, valid, and
enforceable. Notwithstanding any language to the contrary contained herein, no
provision herein or in any other Credit Document evidencing the Guaranteed
Obligations shall require the payment or permit the collection of interest in
excess of the maximum permitted by any Requirement of Law.
20. Modification in Writing. No modification, consent, amendment, or
waiver of any provision of this Guaranty Agreement, and no consent to any
departure by any Guarantor herefrom, shall be effective unless the same shall
be in writing and signed by a duly authorized officer of the Collateral Agent
and, as to any modification or amendment, the Guarantors, and then shall be
effective only in the specific instance and for the specific purpose for which
given.
21. Notices, Etc. No notice to or demand on, or consent by, any
Guarantor in any case shall, of itself, entitle any Guarantor to any other or
further notice or demand, or right to grant or refuse consent, in similar or
other circumstances. No delay or omission by the Agents in exercising any
right or remedy hereunder shall impair any such right or remedy or be
construed as a waiver thereof or any acquiescence therein, and no single or
partial exercise of any such right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy hereunder.
22. Cumulative Rights. All rights and remedies of the Agents
hereunder are cumulative of each other and of every other right or remedy
which any Agent or any Lender may otherwise have under Requirements of Law or
under any other contract or document and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise
of other rights or remedies.
23. Expenses. Each Guarantor jointly and severally agrees to pay on
demand by the Collateral Agent all reasonable costs and expenses incurred by
the Agents in connection with the negotiation, preparation, execution, and
performance of the terms and provisions of this Guaranty Agreement and any and
all amendments, modifications, renewals, restatements, and/or supplements
hereto from time to time, including, without limitation, all reasonable fees,
expenses, and disbursements of any law firm or other counsel engaged by the
Agents. If any Guarantor should breach or fail to perform any provision of
this Guaranty Agreement, such Guarantor agrees to pay to the Collateral Agent
all costs and expenses incurred by the Agents in the enforcement of this
Guaranty Agreement from time to time, including, without limitation, all
reasonable fees, expenses, and disbursements of any law firm or other counsel
incurred by the Agents.
24. Governing Law; Choice of Forum; Service of Process.
(a) THIS GUARANTY AGREEMENT IS GOVERNED BY THE APPLICABLE
LAW PERTAINING IN THE STATE OF NEW YORK, OTHER THAN THOSE CONFLICT OF
LAW PROVISIONS THAT WOULD DEFER TO THE SUBSTANTIVE LAWS OF ANOTHER
JURISDICTION; PROVIDED THAT THE AGENTS AND THE LENDERS RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW. THIS GOVERNING LAW ELECTION HAS
BEEN MADE BY THE PARTIES IN RELIANCE ON, AMONG OTHER THINGS, SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, AS
AMENDED (AS AND TO THE EXTENT APPLICABLE), AND OTHER APPLICABLE LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATES OF
CALIFORNIA OR NEW YORK OR OF THE U.S. LOCATED IN LOS ANGELES COUNTY,
CALIFORNIA, OR NEW YORK COUNTY, NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS GUARANTY AGREEMENT, EACH GUARANTOR CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH GUARANTOR IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF THIS GUARANTY AGREEMENT OR ANY OTHER AGREEMENT,
DOCUMENT, OR INSTRUMENT RELATED HERETO. NOTWITHSTANDING THE
FOREGOING, (i) THE AGENTS AND THE LENDERS SHALL HAVE THE RIGHT TO
BRING ANY ACTION OR PROCEEDING AGAINST ANY GUARANTOR OR ITS PROPERTY
IN THE COURTS OF ANY OTHER JURISDICTION THE AGENTS OR THE LENDERS
DEEM NECESSARY OR APPROPRIATE IN ORDER TO ENFORCE THEIR RIGHTS
HEREUNDER AND (ii) EACH GUARANTOR ACKNOWLEDGES THAT ANY APPEALS FROM
THE COURTS DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE THOSE JURISDICTIONS.
(c) TO THE MAXIMUM EXTENT ALLOWED BY ANY APPLICABLE
REQUIREMENT OF LAW, EACH GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF
ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS MAY BE MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED)
DIRECTED TO SUCH GUARANTOR AT ITS ADDRESS SET FORTH IN THE CREDIT
AGREEMENT AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE
(5) DAYS AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE U.S.
MAILS POSTAGE PREPAID. NOTHING CONTAINED HEREIN SHALL AFFECT THE
RIGHT OF THE AGENTS OR THE LENDERS TO SERVE LEGAL PROCESS BY ANY
OTHER MANNER PERMITTED BY LAW.
25. No Oral Agreements. THIS GUARANTY AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN EACH GUARANTOR AND THE AGENTS AND THE LENDERS RELATING TO
THE SUBJECT MATTER OF THIS GUARANTY AGREEMENT AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF SUCH
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN ANY GUARANTOR AND THE
AGENT AND THE LENDERS. THIS GUARANTY AGREEMENT SUPERSEDES ALL PRIOR (IF ANY)
ORAL AGREEMENTS, ARRANGEMENTS, OR UNDERSTANDINGS RELATING TO THE SUBJECT
MATTER OF THIS GUARANTY AGREEMENT.
26. Notices. Unless otherwise specifically provided in this Guaranty
Agreement, all notices or other communications required or permitted to be
given under this Guaranty Agreement shall be given as specified in the Credit
Agreement.
27. Survival. All representations, warranties, covenants, and
agreements of each Guarantor in this Guaranty Agreement shall survive the
execution of this Guaranty Agreement.
28. Counterparts. This Guaranty Agreement may be executed in any
number of counterparts, each of which shall constitute an original, but all of
which when taken together shall constitute one and the same Guaranty
Agreement. A telecopy of any such executed counterpart shall be deemed valid
as an original.
29. Litigation; Waiver of Trial by Jury. EACH GUARANTOR, AGENT, AND
LENDER WAIVES ITS RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS GUARANTY AGREEMENT, THE OTHER
CREDIT DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING, OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES TO ANY CREDIT DOCUMENT AGAINST ANY OTHER PARTY TO ANY CREDIT DOCUMENT
OR ANY AGENT-RELATED PERSON, PARTICIPANT, OR ASSIGNEE, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH GUARANTOR, AGENT, AND LENDER
AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH GUARANTOR, AGENT, AND
LENDER FURTHER AGREES THAT ITS RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION
OF THIS PARAGRAPH AS TO ANY ACTION, COUNTERCLAIM, OR OTHER PROCEEDING WHICH
SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS GUARANTY AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS TO THIS
GUARANTY AGREEMENT.
30. Irrevocable Nature of Guaranty. This Guaranty Agreement shall be
irrevocable. Each Guarantor acknowledges that any purported or attempted
revocation shall constitute an Event of Default.
31. Headings. The paragraph headings in this Guaranty Agreement are
for convenience of identification only and do not limit any of the provisions
hereof.
32. Consideration. Each Guarantor acknowledges and expressly agrees
with each Agent and each Lender that the execution and delivery of this
Guaranty Agreement by such Guarantor is required solely as a condition to, and
is given solely as inducement for and in consideration of, credit or
accommodations extended or to be extended under the Credit Documents to any or
all of the Borrowers and is not required or given as a condition of any
extensions of credit to such Guarantor.
33. Amendment and Restatement. This Guaranty Agreement constitutes an
amendment and restatement of the Existing Guaranty Agreement in its entirety.
All references in any of the Credit Documents to the Existing Guaranty
Agreement shall be deemed to mean this Guaranty Agreement.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have executed this Guaranty
Agreement as of the effective date specified in the introductory paragraph
hereinabove.
THE GUARANTORS:
XXXXXXXX'X FLORIDA PARTNERSHIP
By: Xxxxxxxx'x Management Corp., its
Managing Partner
By: /s/ Xxx Xxxxxx
-------------------------
Name: Xxx Xxxxxx
Title: President
FI STORES LIMITED PARTNERSHIP
By: Xxxxxxxx'x Inc., its general
partner
By: /s/ Xxx Xxxxxx
------------------------
Name: Xxx Xxxxxx
Title: Chief Executive Officer
XXXXXXXX'X HOLDING CORP.
By: /s/ Xxx Xxxxxx
----------------------------
Name: Xxx Xxxxxx
Title: President
XXXXXXXX'X MANAGEMENT CORP.
By: /s/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: President
FCJV HOLDING CORP.
By: /s/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: President
FCJV, L.P.
By: FCJV Holding Corp., its general
partner
By: /s/ Xxx Xxxxxx
-----------------------
Name: Xxx Xxxxxx
Title: President
XXXXXXXX'X INVESTMENTS LLC
By: FCJV Holding Corp., its general
partner
By: /s/ Xxx Xxxxxx
-----------------------
Name: Xxx Xxxxxx
Title: President
XXXXXXXX'X BENEFICIARY INC.
By: /s/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: President
