Exhibit 4.2
GUARANTY
(Corporate)
New York, New York November 25, 2003
FOR VALUE RECEIVED, and in consideration of loans made or to be made or
credit otherwise extended or to be extended by Agent and Lenders (as those terms
are defined below) to or for the account of Xxxxxxxx'x Operating Co.
("Borrower") from time to time and at any time and for other good and valuable
consideration, and to induce Agent and Lenders to make such loans or extensions
of credit and to make or grant such renewals, extensions, releases of collateral
or relinquishments of legal rights as Agent and Lenders may deem advisable, the
undersigned (and each of them if more than one, the liability under this
Guaranty being joint and several) (jointly and severally referred to as
"Guarantor" or "the undersigned") unconditionally guaranties to Agent, Lenders,
their successors, endorsees and assigns, the prompt payment when due (whether by
acceleration or otherwise) of all present and future obligations and liabilities
of any and all kinds of Borrower to Agent and Lenders and of all instruments of
any nature evidencing or relating to any such obligations and liabilities upon
which Borrower or one or more parties and Borrower is or may become liable to
Agent and Lenders, whether incurred by Borrower as maker, endorser, drawer,
acceptor, guarantor, accommodation party or otherwise, and whether due or to
become due, secured or unsecured, absolute or contingent, joint or several, and
however or whenever acquired by Agent and Lenders, in each case to the extent
arising under, out of, or in connection with that certain Loan and Security
Agreement dated as of November ___, 2003 among Xxxxxxxx, Xxxxxxxx'x Holdings,
Inc. ("Parent"), Xxxxxxxx'x Inc. ("Sub-Parent"), Xxxxxxxx'x Real Estate
Holdings, Inc. ("REH"), the financial institutions named therein or which
hereafter become a party thereto (each a "Lender" and collectively, "Lenders")
and The CIT Group/Business Credit, Inc., as agent for Lenders (in such capacity,
"Agent") (as amended, modified, restated or supplemented from time to time, the
"Loan Agreement") or any documents, instruments or agreements relating to or
executed in connection with the Loan Agreement (together with the Loan
Agreement, as each may be amended, modified, restated or supplemented from time
to time, the "Loan Documents") (all of which are herein collectively referred to
as the "Obligations"), and irrespective of the genuineness, validity, regularity
or enforceability of such Obligations, or of any instrument evidencing any of
the Obligations or of any collateral therefor or of the existence or extent of
such collateral, and irrespective of the allowability, allowance or disallowance
of any or all of the Obligations in any case commenced by or against Borrower
under Title 11, United States Code, including, without limitation, obligations
or indebtedness of Borrower for post-petition interest, fees, costs and charges
that would have accrued or been added to the Obligations but for the
commencement of such case. In furtherance of the foregoing, the undersigned
xxxxxx agrees as follows:
1. No Impairment. Agent and Lenders may at any time and from time to
time, either before or after the maturity thereof, without notice to or further
consent of the undersigned, extend the time of payment of, exchange or surrender
any collateral for, renew or extend any of the Obligations or increase or
decrease the interest rate thereon, and may also make any agreement with
Borrower or with any other party to or person liable on any of the Obligations,
or interested therein, for the extension, renewal, payment, compromise,
discharge or release thereof, in whole or in part, or for any modification of
the terms thereof or of any agreement among
Agent and/or Lenders and Borrower or any such other party or person, or make any
election of rights Agent and/or Lenders may deem desirable under the United
States Bankruptcy Code, as amended, or any other federal or state bankruptcy,
reorganization, moratorium or insolvency law relating to or affecting the
enforcement of creditors' rights generally (any of the foregoing, an "Insolvency
Law") without in any way impairing or affecting this Guaranty. This instrument
shall be effective regardless of the subsequent incorporation, merger or
consolidation of Borrower, or any change in the composition, nature, personnel
or location of Borrower and shall extend to any successor entity to Borrower,
including a debtor in possession or the like under any Insolvency Law.
2. Guaranty Absolute. The undersigned guarantees that the Obligations
will be paid strictly in accordance with the terms of the Loan Agreement and/or
any other document, instrument or agreement creating or evidencing the
Obligations, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of Borrower
with respect thereto. Guarantor hereby knowingly accepts the full range of risk
encompassed within a contract of "continuing guaranty" which risk includes the
possibility that Borrower will contract additional indebtedness for which
Guarantor may be liable hereunder after Xxxxxxxx's financial condition or
ability to pay its lawful debts when they fall due has deteriorated, whether or
not Borrower has properly authorized incurring such additional indebtedness. The
undersigned acknowledges that (i) no oral representations, including any
representations to extend credit or provide other financial accommodations to
Borrower, have been made by Agent or Lenders to induce the undersigned to enter
into this Guaranty and (ii) any extension of credit to the Borrower shall be
governed solely by the provisions of the Loan Agreement and the other Loan
Documents. The liability of the undersigned under this Guaranty shall be
absolute and unconditional, in accordance with its terms, and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (a) any waiver, indulgence, renewal,
extension, amendment or modification of or addition, consent or supplement to or
deletion from or any other action or inaction under or in respect of the Loan
Documents or any other instruments or agreements relating to the Obligations or
any assignment or transfer of any thereof, (b) any lack of validity or
enforceability of any Loan Document or other documents, instruments or
agreements relating to the Obligations or any assignment or transfer of any
thereof, (c) any furnishing of any additional security to Agent or Lenders or
their assignees or any acceptance thereof or any release of any security by
Agent or Lenders or their assignees, (d) any limitation on any party's liability
or obligation under the Loan Documents or any other documents, instruments or
agreements relating to the Obligations or any assignment or transfer of any
thereof or any invalidity or unenforceability, in whole or in part, of any such
document, instrument or agreement or any term thereof, (e) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation or
other like proceeding relating to Borrower, or any action taken with respect to
this Guaranty by any trustee or receiver, or by any court, in any such
proceeding, whether or not the undersigned shall have notice or knowledge of any
of the foregoing, (f) any exchange, release or nonperfection of any collateral,
or any release, or amendment or waiver of or consent to departure from any
guaranty or security, for all or any of the Obligations or (g) any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, the undersigned. Any amounts due from the undersigned to Agent or
Lenders shall bear interest until such amounts are paid in full at the
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highest rate then applicable to the Obligations. Obligations include
post-petition interest whether or not allowed or allowable.
3. Waivers. (a) This Guaranty is a guaranty of payment and not of
collection. Neither Agent nor Lenders shall be under any obligation to institute
suit, exercise rights or remedies or take any other action against Borrower or
any other person liable with respect to any of the Obligations or resort to any
collateral security held by it to secure any of the Obligations as a condition
precedent to the undersigned being obligated to perform as agreed herein and
Guarantor hereby waives any and all rights which the undersigned may have by
statute or otherwise which would require Agent or Lenders to do any of the
foregoing. Guarantor further consents and agrees that Agent and Xxxxxxx shall be
under no obligation to marshal any assets in favor of Guarantor, or against or
in payment of any or all of the Obligations. The undersigned hereby waives all
suretyship defenses and any rights to interpose any defense, counterclaim or
offset of any nature and description which it may have or which may exist
between and among Agent, Lenders, Borrower and/or the undersigned with respect
to the undersigned's obligations under this Guaranty, or which Borrower may
assert on the underlying debt, including but not limited to failure of
consideration, breach of warranty, fraud, payment (other than cash payment in
full of the Obligations), statute of frauds, bankruptcy, infancy, statute of
limitations, accord and satisfaction, and usury.
(b) The undersigned further waives (i) notice of the acceptance of this
Guaranty, of the making of any such loans or extensions of credit, and of all
notices and demands of any kind to which the undersigned may be entitled,
including, without limitation, notice of adverse change in Borrower's financial
condition or of any other fact which might materially increase the risk of the
undersigned and (ii) presentment to or demand of payment from anyone whomsoever
liable upon any of the Obligations, protest, notices of presentment, non-payment
or protest and notice of any sale of collateral security or any default of any
sort.
(c) Notwithstanding any payment or payments made by the undersigned
hereunder, or any setoff or application of funds of the undersigned by Agent or
any Lender, the undersigned shall not be entitled to be subrogated to any of the
rights of Lenders against Borrower or against any collateral or guarantee or
right of offset held by Lenders for the payment of the Obligations, nor shall
the undersigned seek or be entitled to seek any contribution or reimbursement
from Borrower in respect of payments made by the undersigned hereunder, until
all amounts owing to Agent and Lenders by Borrower on account of the Obligations
are paid in full and the Loan Agreement has been terminated. If, notwithstanding
the foregoing, any amount shall be paid to the undersigned on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full and the Loan Agreement shall not have been terminated, such amount
shall be held by the undersigned in trust for Agent and Lenders, segregated from
other funds of the undersigned, and shall forthwith upon, and in any event
within two (2) business days of, receipt by the undersigned, be turned over to
Agent in the exact form received by the undersigned (duly endorsed by the
undersigned to Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as Agent and Lenders may determine,
subject to the provisions of the Loan Agreement. Any and all present and future
debts and obligations of Borrower to any of the undersigned are hereby waived
and postponed in favor of, and subordinated to the full payment and performance
of, all present and
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future debts and obligations of Borrower to Agent and Lenders.
4. Security. All sums at any time to the credit of the undersigned and
any property of the undersigned in Agent's or any Xxxxxx's possession shall be
deemed held by Agent or such Lender, as the case may be, as security for any and
all of the undersigned's obligations to Agent and Lenders, no matter how or when
arising and whether under this or any other instrument, agreement or otherwise.
5. Acceleration. Upon the occurrence and during the continuance of an
Event of Default (as such term is defined in the Loan Agreement), any and all
Obligations shall for purposes hereof, at Agent's option, be deemed due and
payable without notice notwithstanding that any such Obligation is not then due
and payable by Borrower.
6. Payments from Guarantor. Agent, in its sole and absolute discretion,
with or without notice to the undersigned, may apply on account of the
Obligations any payment from the undersigned or any other guarantor, or amounts
realized from any security of the undersigned for the Obligations, or may
deposit any and all such amounts realized in a non-interest bearing cash
collateral deposit account to be maintained as security for the Obligations,
such payments and cash collateral to be applied on account of the Obligations in
accordance with the Loan Agreement and the other Loan Documents.
7. Costs. The undersigned shall pay on demand, all costs, fees and
expenses (including reasonable expenses for legal services of every kind (other
than legal services performed by internal counsel)) relating or incidental to
the enforcement or protection of the rights of Agent and Lenders hereunder or
under any of the Obligations.
8. No Termination. This is a continuing irrevocable guaranty and shall
remain in full force and effect and be binding upon the undersigned, and the
undersigned's successors and assigns, until all of the Obligations have been
paid in full and the Loan Agreement has been irrevocably terminated. If any of
the present or future Obligations are guarantied by persons, partnerships or
corporations in addition to the undersigned, the death, release or discharge in
whole or in part or the bankruptcy, merger, consolidation, incorporation,
liquidation or dissolution of one or more of them shall not discharge or affect
the liabilities of the undersigned under this Guaranty.
9. Recapture. Anything in this Guaranty to the contrary notwithstanding,
if Agent or any Lender receives any payment or payments on account of the
liabilities guaranteed hereby, 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 a trustee, receiver, or any other party under
any Insolvency Law, common law or equitable doctrine, then to the extent of any
sum not finally retained by Agent and Lenders, the undersigned's obligations to
Agent and Lenders shall be reinstated and this Guaranty shall remain in full
force and effect (or be reinstated) until payment shall have been made to Agent
and Lenders, which payment shall be due on demand.
10. Books and Records. The books and records of Agent and Lenders
showing the
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account among Agent, Xxxxxxx and Xxxxxxxx shall be admissible in evidence in any
action or proceeding.
11. No Waiver. No failure on the part of Agent or Lenders to exercise,
and no delay in exercising, any right, remedy or power hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise by Agent or
Lenders of any right, remedy or power hereunder preclude any other or future
exercise of any other legal right, remedy or power. Each and every right, remedy
and power hereby granted to Agent or Lenders or allowed it by law or other
agreement shall be cumulative and not exclusive of any other, and may be
exercised by Agent or Lenders at any time and from time to time.
12. Waiver of Jury Trial. THE AGENT, EACH LENDER AND THE UNDERSIGNED
EACH DOES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR WITH RESPECT TO THIS
GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR RELATING OR
INCIDENTAL HERETO. THE AGENT, EACH LENDER AND THE UNDERSIGNED EACH DOES HEREBY
CERTIFY THAT NO REPRESENTATIVE OR AGENT OF THE AGENT, ANY LENDER OR THE
UNDERSIGNED, AS THE CASE MAY BE, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
IT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT
TO JURY TRIAL PROVISION.
13. Governing Law; Jurisdiction; Amendments. THIS INSTRUMENT CANNOT BE
CHANGED OR TERMINATED ORALLY, AND SHALL BE GOVERNED, CONSTRUED AND INTERPRETED
AS TO VALIDITY, ENFORCEMENT AND IN ALL OTHER RESPECTS IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. THE AGENT, EACH LENDER AND THE UNDERSIGNED EACH
EXPRESSLY CONSENTS TO THE JURISDICTION AND VENUE OF THE SUPREME COURT OF THE
STATE OF NEW YORK, COUNTY OF NEW YORK, AND OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK FOR ALL PURPOSES IN CONNECTION HEREWITH.
ANY JUDICIAL PROCEEDING BY THE UNDERSIGNED AGAINST AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF,
RELATED TO OR CONNECTED HEREWITH SHALL BE BROUGHT ONLY IN THE SUPREME COURT OF
THE STATE OF NEW YORK, COUNTY OF NEW YORK OR THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK. THE AGENT, EACH LENDER AND THE
UNDERSIGNED EACH FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR OTHER PROCESS OR
PAPERS (INCLUDING, WITHOUT LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION
TO EITHER OF THE AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN
CONNECTION WITH ANY PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF
THE STATE OF NEW YORK OR THE SOUTHERN DISTRICT OF NEW YORK BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE PROVIDED A
REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH OTHER MANNER AS MAY BE
PERMISSIBLE UNDER THE RULES OF SAID COURTS. THE AGENT, EACH LENDER AND THE
UNDERSIGNED
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EACH WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED
HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE
OR BASED UPON FORUM NON CONVENIENS.
14. Severability. To the extent permitted by applicable law, any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
15. Amendments, Waivers. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by the undersigned therefrom shall in any
event be effective unless the same shall be in writing executed by the
undersigned and Agent.
16. Notice. All notices, requests and demands to or upon the
undersigned, shall be in writing and shall be deemed to have been duly given or
made (a) when delivered, if by hand, (b) three (3) days after being sent,
postage prepaid, if by registered or certified mail, (c) when confirmed
electronically, if by facsimile, or (d) when delivered, if by a recognized
overnight delivery service in each event, to the numbers and/or address set
forth beneath the signature of the undersigned.
17. Successors. Agent and Lenders may, from time to time, without notice
to the undersigned, sell, assign, transfer or otherwise dispose of all or any
part of the Obligations in accordance with the Loan Agreement. Without limiting
the generality of the foregoing, Agent and Lenders may, in accordance with the
Loan Agreement, assign, or grant participations to, one or more banks, financial
institutions or other entities all or any part of any of the Obligations. Agent
may, from time to time, without notice to the undersigned, sell, transfer or
otherwise dispose of its rights under this Guaranty as part of the same
transaction pursuant to which it shall sell, assign, transfer or otherwise
dispose of all or any part of the Obligations as permitted above. In each such
event, Agent, any bank, financial institution or other entity that directly or
indirectly, through one or more intermediaries, controls or is controlled by, or
is under common control with, Agent and each and every immediate and successive
purchaser, assignee, transferee or holder of all or any part of the Obligations
shall have the right to enforce this Guaranty, by legal action or otherwise, for
its own benefit as fully as if such purchaser, assignee, transferee or holder
were herein by name specifically given such right.
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18. Release. Nothing except cash payment in full of the Obligations
shall release the undersigned from liability under this Guaranty.
IN WITNESS WHEREOF, this Guaranty has been executed by the undersigned
this 25th day of November, 2003.
XXXXXXXX'X HOLDINGS, INC.
By:
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Name:
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Title:
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Address:
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Telephone No.:
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Facsimile No.:
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XXXXXXXX'X, INC.
By:
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Name:
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Title:
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Address:
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Telephone No.:
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Facsimile No.:
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XXXXXXXX'X REAL ESTATE HOLDINGS, INC.
By:
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Name:
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Title:
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Address:
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Telephone No.:
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Facsimile No.:
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STATE OF NEW YORK )
): ss.:
COUNTY OF NEW YORK )
On the ____ day of November, 2003, before me personally came
_______________________ to me known, who being by me duly sworn, did depose and
say s/he is the ______________ of Xxxxxxxx'x Holdings, Inc., the corporation
described in and which executed the foregoing instrument; and that s/he signed
her/his name thereto by order of the board of directors of said corporation.
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Notary Public
STATE OF NEW YORK )
): ss.:
COUNTY OF NEW YORK )
On the ____ day of November, 2003, before me personally came
_______________________ to me known, who being by me duly sworn, did depose and
say s/he is the ______________ of Xxxxxxxx'x, Inc., the corporation described in
and which executed the foregoing instrument; and that s/he signed her/his name
thereto by order of the board of directors of said corporation.
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Notary Public
STATE OF NEW YORK )
): ss.:
COUNTY OF NEW YORK )
On the ____ day of November, 2003, before me personally came
_______________________ to me known, who being by me duly sworn, did depose and
say s/he is the ______________ of Xxxxxxxx'x Real Estate Holdings, Inc., the
corporation described in and which executed the foregoing instrument; and that
s/he signed her/his name thereto by order of the board of directors of said
corporation.
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Notary Public
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