EXHIBIT E
[FORM OF] SUBSIDIARY GUARANTY
This GUARANTY is entered into as of February 1, 2001 by the
undersigned (each a "GUARANTOR", and together with any future Subsidiaries
executing this Guaranty, being collectively referred to herein as the
"GUARANTORS") in favor of and for the benefit of Bank of America, N.A., as
Administrative Agent for and representative of (in such capacity herein called
the "GUARANTIED PARTY") the several financial institutions (the "LENDERS") from
time to time party to the Credit Agreement referred to below and any Hedge Bank,
and for the benefit of the other Beneficiaries (as hereinafter defined).
PRELIMINARY STATEMENTS
X. Xxxx Xxxxxxx & Co., a Delaware corporation (the "BORROWER"),
has entered into that certain Credit Agreement, dated as of February 1, 2001,
with the Lenders, the several financial institutions party thereto as Co-Lead
Arrangers and Joint Book Managers, the financial institution party thereto as
Syndication Agent, the financial institution party thereto as Documentation
Agent, and Guarantied Party, as Administrative Agent for the Lenders (said
Credit Agreement, as it may hereafter be amended, amended and restated,
supplemented or otherwise modified from time to time, being the "CREDIT
AGREEMENT"; the terms defined therein being used herein as therein defined).
B. The Borrower and Levi Xxxxxxx & Co. Financial Services, S.A.,
a Belgian corporation, or any successor thereto ("FINSERV"), may from time to
time enter, or may from time to time have entered, into one or more Hedge Bank
Hedge Agreements in accordance with the terms of the Credit Agreement, and it is
desired that the obligations of the Borrower and FinServ under the Hedge Bank
Hedge Agreements, including, without limitation, the obligation of the Borrower
and FinServ to make payments thereunder in the event of early termination or
close out thereof, together with all obligations of the Borrower under the
Credit Agreement and the other Loan Documents, be guarantied hereunder until the
payment in full of all Obligations under the Credit Agreement and the other Loan
Documents (other than the Hedge Bank Hedge Agreements), the cancellation or
expiration of all Letters of Credit and the termination of the Commitments.
C. The Guarantied Party, the Lenders, and each Hedge Bank for
which the Guarantied Party has received the notice required by Section 17(c)
hereof are sometimes referred to herein as "BENEFICIARIES".
D. A portion of the proceeds of the Advances may be advanced to
the Guarantors, and thus the Guarantied Obligations (as hereinafter defined) are
being incurred for and will inure to the benefit of the Guarantors (which
benefits are hereby acknowledged).
E. It is a condition precedent to the initial extensions of
credit by the Lenders under the Credit Agreement that the Borrower's obligations
thereunder be guarantied by the Guarantors.
F. The Guarantors are willing irrevocably and unconditionally to
guaranty such obligations of the Borrower.
NOW, THEREFORE, based upon the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce the Lenders and the Guarantied Party to
enter into the Credit Agreement and to induce Hedge Banks to enter into the
Hedge Bank Hedge Agreements, the Guarantors hereby agree as follows:
1. Guaranty. (a) In order to induce the Lenders to extend
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credit to the Borrower pursuant to the Credit Agreement and the entry by Hedge
Banks into the Hedge Bank Hedge Agreements, the Guarantors jointly and severally
irrevocably and unconditionally guaranty, as primary obligors and not merely as
sureties, the due and punctual payment in full of all Guarantied Obligations (as
hereinafter defined) when the same shall become due, whether at stated maturity,
by acceleration, demand or otherwise (including amounts that would become due
but for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. ss. 362(a)). The term "GUARANTIED OBLIGATIONS" is
used herein in its most comprehensive sense and includes any and all Obligations
of the Borrower and all obligations of the Borrower and FinServ under Hedge Bank
Hedge Agreements, now or hereafter made, incurred or created, whether absolute
or contingent, liquidated or unliquidated, whether due or not due, and however
arising under or in connection with the Credit Agreement, the Hedge Bank Hedge
Agreements, this Guaranty and the other Loan Documents, including those arising
under successive borrowing transactions under the Credit Agreement which shall
either continue the Obligations of the Borrower or from time to time renew them
after they have been satisfied; PROVIDED, HOWEVER, that obligations arising
under or in connection with the Hedge Bank Hedge Agreements shall be Guarantied
Obligations only until the payment in full of all Obligations under the Credit
Agreement and the other Loan Documents (other than the Hedge Bank Hedge
Agreements), the cancellation or expiration of all Letters of Credit and the
termination of the Commitments.
Each Guarantor acknowledges that a portion of the Advances may
be advanced to it, that Letters of Credit may be issued for the benefit of its
business and that the Guarantied Obligations are being incurred for and will
inure to its benefit.
Any interest on any portion of the Guarantied Obligations that
accrues after the commencement of any proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of the Borrower or FinServ (or, if interest on any portion of the
Guarantied Obligations ceases to accrue by operation of law by reason of the
commencement of said proceeding, such interest as would have accrued on such
portion of the Guarantied Obligations if said proceeding had not been commenced)
shall be included in the Guarantied Obligations because it is the intention of
each Guarantor and the Guarantied Party that the Guarantied Obligations should
be determined without regard to any rule of law or order that may relieve the
Borrower or FinServ of any portion of such Guarantied Obligations.
In the event that all or any portion of the Guarantied
Obligations is paid, the obligations of each Guarantor hereunder shall continue
and remain in
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full force and effect or be reinstated, as the case may be, in the event that
all or any part of such payment(s) is rescinded or recovered directly or
indirectly from the Guarantied Party or any other Beneficiary as a preference,
fraudulent transfer or otherwise, and any such payments that are so rescinded or
recovered shall constitute Guarantied Obligations.
Subject to the other provisions of this Section 1, upon the
failure of the Borrower or FinServ to pay any of the Guarantied Obligations when
and as the same shall become due, each Guarantor will upon demand pay, or cause
to be paid, in cash, to the Guarantied Party for the ratable benefit of
Beneficiaries, an amount equal to the aggregate of the unpaid Guarantied
Obligations.
(b) Anything contained in this Guaranty to the contrary
notwithstanding, the obligations of each Guarantor under this Guaranty 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 Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law (collectively, the "FRAUDULENT
TRANSFER LAWS"), in each case after giving effect to all other liabilities of
such Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (i) in respect of intercompany indebtedness to the Borrower or other
affiliates of the Borrower to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by such Guarantor hereunder and
(ii) under any guaranty which contains a limitation as to maximum amount similar
to that set forth in this Section 1(b), pursuant to which the liability of such
Guarantor hereunder is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as assets to the value
(as determined under the applicable provisions of the Fraudulent Transfer Laws)
of any rights to subrogation, reimbursement, indemnification or contribution of
such Guarantor pursuant to applicable law or pursuant to the terms of any
agreement.
(c) Each Guarantor under this Guaranty, and each guarantor
under other guaranties, if any, relating to the Credit Agreement (the "RELATED
GUARANTIES") that contain a contribution provision similar to that set forth in
this Section 1(c), together desire to allocate among themselves (collectively,
the "CONTRIBUTING GUARANTORS"), in a fair and equitable manner, their
obligations arising under this Guaranty and the Related Guaranties. Accordingly,
in the event any payment or distribution is made on any date by a Guarantor
under this Guaranty or a guarantor under a Related Guaranty, each such Guarantor
or such other guarantor shall be entitled to a contribution from each of the
other Contributing Guarantors in the maximum amount permitted by law so as to
maximize the aggregate amount of the Guarantied Obligations paid to
Beneficiaries.
2. Guaranty Absolute; Continuing Guaranty. The obligations of
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each Guarantor hereunder are irrevocable, absolute, independent and
unconditional and shall not be affected by any circumstance which constitutes a
legal or equitable discharge of a guarantor or surety other than payment in full
of the Guarantied Obligations. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees that: (a) this Guaranty
is a guaranty of payment when due and not of collectibility; (b) the Guarantied
Party may enforce this Guaranty upon the occurrence of an Event of Default under
the Credit Agreement notwithstanding the existence of any dispute between the
Borrower or FinServ and any
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Beneficiary with respect to the existence of such event; (c) the obligations of
each Guarantor hereunder are independent of the obligations of the Borrower
under the Loan Documents or of the Borrower and FinServ under the Hedge Bank
Hedge Agreements and the obligations of any other Guarantor and a separate
action or actions may be brought and prosecuted against each Guarantor whether
or not any action is brought against the Borrower, FinServ or any of such other
Guarantors and whether or not the Borrower or FinServ is joined in any such
action or actions; and (d) a payment of a portion, but not all, of the
Guarantied Obligations by one or more Guarantors shall in no way limit, affect,
modify or abridge the liability of such or any other Guarantor for any portion
of the Guarantied Obligations that has not been paid. This Guaranty is a
continuing guaranty and shall be binding upon each Guarantor and its successors
and assigns, and each Guarantor irrevocably waives any right to revoke this
Guaranty as to future transactions giving rise to any Guarantied Obligations.
3. Actions by Beneficiaries. Any Beneficiary may from time to
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time, without notice or demand and without affecting the validity or
enforceability of this Guaranty or giving rise to any limitation, impairment or
discharge of any Guarantor's liability hereunder, (a) renew, extend, accelerate
or otherwise change the time, place, manner or terms of payment of the
Guarantied Obligations, (b) settle, compromise, release or discharge, or accept
or refuse any offer of performance with respect to, or substitutions for, the
Guarantied Obligations or any agreement relating thereto and/or subordinate the
payment of the same to the payment of any other obligations, (c) request and
accept other guaranties of the Guarantied Obligations and take and hold security
for the payment of this Guaranty or the Guarantied Obligations, (d) release,
exchange, compromise, subordinate or modify, with or without consideration, any
security for payment of the Guarantied Obligations, any other guaranties of the
Guarantied Obligations, or any other obligation of any Person with respect to
the Guarantied Obligations, (e) enforce and apply any security now or hereafter
held by or for the benefit of any Beneficiary in respect of this Guaranty or the
Guarantied Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that Guarantied Party or the other
Beneficiaries, or any of them, may have against any such security, as Guarantied
Party in its discretion may determine consistent with the Credit Agreement, the
Hedge Bank Hedge Agreements and any applicable security agreement, including
foreclosure on any such security pursuant to one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable,
and (f) exercise any other rights available to the Guarantied Party or the other
Beneficiaries, or any of them, under the Loan Documents or the Hedge Bank Hedge
Agreements.
4. No Discharge. This Guaranty and the obligations of the
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Guarantors hereunder shall be valid and enforceable and shall not be subject to
any limitation, impairment or discharge for any reason (other than payment in
full of the Guarantied Obligations), including, without limitation, the
occurrence of any of the following, whether or not any Guarantor shall have had
notice or knowledge of any of them: (a) any failure to assert or enforce or
agreement not to assert or enforce, or the stay or enjoining, by order of court,
by operation of law or otherwise, of the exercise or enforcement of, any claim
or demand or any right, power or remedy with respect to the Guarantied
Obligations or any agreement relating thereto, or with respect to any other
guaranty of or security for the payment of the Guarantied Obligations, (b) any
waiver or modification of, or any consent to departure from, any of the terms or
provisions of the Credit Agreement, any of the other Loan Documents, the Hedge
Bank Hedge Agreements or any agreement or instrument executed pursuant thereto,
or of any other guaranty or security for the
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Guarantied Obligations, (c) the Guarantied Obligations, or any agreement
relating thereto, at any time being found to be illegal, invalid or
unenforceable in any respect, (d) the application of payments received from any
source to the payment of indebtedness other than the Guarantied Obligations,
even though Guarantied Party or the other Beneficiaries, or any of them, might
have elected to apply such payment to any part or all of the Guarantied
Obligations, (e) any failure to perfect or continue perfection of a security
interest in any collateral which secures any of the Guarantied Obligations, (f)
any defenses, set-offs or counterclaims which the Borrower or FinServ may assert
against the Guarantied Party or any Beneficiary in respect of the Guarantied
Obligations, including but not limited to failure of consideration, breach of
warranty, payment, statute of frauds, statute of limitations, accord and
satisfaction and usury, and (g) any other act or thing or omission, or delay to
do any other act or thing, which may or might in any manner or to any extent
vary the risk of a Guarantor as an obligor in respect of the Guarantied
Obligations.
5. Waivers. Each Guarantor waives, for the benefit of
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Beneficiaries: (a) any right to require the Guarantied Party or the other
Beneficiaries, as a condition of payment or performance by such Guarantor, to
(i) proceed against the Borrower or FinServ, any other guarantor (including any
other Guarantor) of the Guarantied Obligations or any other Person, (ii) proceed
against or exhaust any security held from the Borrower or FinServ, any other
guarantor of the Guarantied Obligations or any other Person, (iii) proceed
against or have resort to any balance of any deposit account or credit on the
books of any Beneficiary in favor of the Borrower, FinServ or any other Person,
or (iv) pursue any other remedy in the power of any Beneficiary; (b) any defense
arising by reason of the incapacity, lack of authority or any disability or
other defense of the Borrower or FinServ including, without limitation, any
defense based on or arising out of the lack of validity or the unenforceability
of the Guarantied Obligations or any agreement or instrument relating thereto or
by reason of the cessation of the liability of the Borrower or FinServ from any
cause other than payment in full of the Guarantied Obligations; (c) any defense
based upon any statute or rule of law which provides that the obligation of a
surety must be neither larger in amount nor in other respects more burdensome
than that of the principal; (d) any defense based upon the Guarantied Party's or
any other Beneficiary's errors or omissions in the administration of the
Guarantied Obligations, except behavior that amounts to gross negligence or
willful misconduct; (e) (i) any principles or provisions of law, statutory or
otherwise, that are or might be in conflict with the terms of this Guaranty and
any legal or equitable discharge of such Guarantor's obligations hereunder, (ii)
the benefit of any statute of limitations affecting such Guarantor's liability
hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments
and counterclaims, and (iv) promptness, diligence and any requirement that any
Beneficiary protect, secure, perfect or insure any Lien or any property subject
thereto; (f) notices, demands, presentments, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including acceptance
of this Guaranty, notices of default under the Credit Agreement, notices of
default, close out or early termination under any Hedge Bank Hedge Agreement or
any agreement or instrument related thereto, notices of any renewal, extension
or modification of the Guarantied Obligations or any agreement related thereto,
notices of any extension of credit to the Borrower or FinServ and notices of any
of the matters referred to in Sections 3 and 4 hereof and any right to consent
to any thereof; and (g) to the fullest extent permitted by law, any defenses or
benefits that may be derived from or afforded by law which limit the liability
of or exonerate guarantors or sureties, or which may conflict with the terms of
this Guaranty.
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As used in this paragraph, any reference to "the principal"
includes the Borrower and FinServ, and any reference to "the creditor" includes
the Guarantied Party and each other Beneficiary. In accordance with Section 2856
of the California Civil Code (a) each Guarantor waives any and all rights and
defenses available to it by reason of Sections 2787 to 2855, inclusive, 2899 and
3433 of the California Civil Code, including, without limitation, any and all
rights or defenses such Guarantor may have by reason of protection afforded to
the principal with respect to any of the Guarantied Obligations, or to any other
guarantor of any of the Guarantied Obligations with respect to any of such
guarantor's obligations under its guaranty, in either case pursuant to the
antideficiency or other laws of the State of California limiting or discharging
the principal's indebtedness or such guarantor's obligations, including, without
limitation, Section 580a, 580b, 580d, or 726 of the California Code of Civil
Procedure; and (b) each Guarantor waives all rights and defenses arising out of
an election of remedies by the creditor, even though that election of remedies,
such as a nonjudicial foreclosure with respect to security for a Guarantied
Obligation, has destroyed such Guarantor's rights of subrogation and
reimbursement against the principal by the operation of Section 580d of the Code
of Civil Procedure or otherwise; and even though that election of remedies by
the creditor, such as nonjudicial foreclosure with respect to security for an
obligation of any other guarantor of any of the Guarantied Obligations, has
destroyed such Guarantor's rights of contribution against such other guarantor.
No other provision of this Guaranty shall be construed as limiting the
generality of any of the covenants and waivers set forth in this paragraph. As
provided below, this Guaranty shall be governed by, and shall be construed and
enforced in accordance with, the internal laws of the State of New York, without
regard to conflicts of laws principles. This paragraph is included solely out of
an abundance of caution, and shall not be construed to mean that any of the
above-referenced provisions of California law are in any way applicable to this
Guaranty or to any of the Guarantied Obligations.
6. Guarantors' Rights of Subrogation, Contribution, Etc.;
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Subordination of Other Obligations. Until the Guarantied Obligations shall have
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been paid in full, the Commitments shall have terminated and all Letters of
Credit shall have expired or been cancelled, no Guarantor shall exercise any
claim, right or remedy, direct or indirect, that such Guarantor now has or may
hereafter have against the Borrower, FinServ or their respective assets in
connection with this Guaranty or the performance by such Guarantor of its
obligations hereunder, in each case whether such claim, right or remedy arises
in equity, under contract, by statute (including, without limitation, under
California Civil Code Section 2847, 2848 or 2849), under common law or otherwise
and including, without limitation, (a) any right of subrogation, reimbursement
or indemnification that such Guarantor now has or may hereafter have against the
Borrower or FinServ, (b) any right to enforce, or to participate in, any claim,
right or remedy that any Beneficiary now has or may hereafter have against the
Borrower or FinServ, and (c) any benefit of, and any right to participate in,
any collateral or security now or hereafter held by any Beneficiary. Each
Guarantor further agrees that, to the extent the waiver or agreement to withhold
the exercise of its rights of subrogation, reimbursement, indemnification and
contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation, reimbursement
or indemnification such Guarantor may have against the Borrower or FinServ or
against any collateral or security, and any rights of contribution such
Guarantor may have against any such other guarantor, shall be junior and
subordinate to any rights the Guarantied Party or the other Beneficiaries may
have against the Borrower or FinServ, to all right, title and interest the
Guarantied Party or the other
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Beneficiaries may have in any such collateral or security, and to any right the
Guarantied Party or the other Beneficiaries may have against such other
guarantor.
Any indebtedness of the Borrower or FinServ now or hereafter
held by any Guarantor is subordinated in right of payment to the Guarantied
Obligations, and any such indebtedness of the Borrower or FinServ to a Guarantor
collected or received by such Guarantor after an Event of Default has occurred
and is continuing, and any amount paid to a Guarantor on account of any
subrogation, reimbursement, indemnification or contribution rights referred to
in the preceding paragraph when all Guarantied Obligations have not been paid in
full, shall be held in trust for the Guarantied Party on behalf of Beneficiaries
and shall forthwith be paid over to the Guarantied Party for the benefit of
Beneficiaries to be credited and applied against the Guarantied Obligations.
7. Expenses. The Guarantors jointly and severally agree to
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pay, or cause to be paid, on demand, and to save the Guarantied Party and the
other Beneficiaries harmless against liability for, any and all costs and
expenses (including reasonable fees and disbursements of counsel) incurred or
expended by the Guarantied Party or any other Beneficiary in connection with the
enforcement of or preservation of any rights under this Guaranty.
8. Financial Condition of the Borrower or FinServ. No
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Beneficiary shall have any obligation, and each Guarantor waives any duty on the
part of any Beneficiary, to disclose or discuss with such Guarantor its
assessment, or such Guarantor's assessment, of the financial condition of the
Borrower or FinServ or any matter or fact relating to the business, operations
or condition of the Borrower or FinServ. Each Guarantor has adequate means to
obtain information from the Borrower or FinServ on a continuing basis concerning
the financial condition of the Borrower or FinServ and its ability to perform
its obligations under the Loan Documents and the Hedge Bank Hedge Agreement, as
the case may be, and each Guarantor assumes the responsibility for being and
keeping informed of the financial condition of the Borrower or FinServ and of
all circumstances bearing upon the risk of nonpayment of the Guarantied
Obligations.
9. Representations and Warranties. Each Guarantor makes, for
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the benefit of Beneficiaries, each of the representations and warranties made in
the Credit Agreement by the Borrower as to such Guarantor, its assets, financial
condition, operations, organization, legal status, business and the Loan
Documents to which it is a party.
10. Covenants. Each Guarantor agrees that, so long as any part
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of the Guarantied Obligations shall remain unpaid, any Letter of Credit shall be
outstanding and any Lender shall have any Commitment, such Guarantor will,
unless Required Lenders shall otherwise consent in writing, perform or observe,
and cause its Subsidiaries to perform or observe, all of the terms, covenants
and agreements that the Loan Documents state that the Borrower is to cause a
Guarantor and such Subsidiaries to perform or observe.
11. Set Off. In addition to any other rights any Beneficiary
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may have under law or in equity, if any amount shall at any time be due and
owing by a Guarantor to any Beneficiary under this Guaranty, such Beneficiary is
authorized at any time or from time to time, without notice (any such notice
being expressly waived), to set off and to appropriate and to
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apply any and all deposits (general or special, including but not limited to
indebtedness evidence by certificates of deposit, whether matured or unmatured)
and any other indebtedness of such Beneficiary owing to a Guarantor and any
other property of such Guarantor held by a Beneficiary to or for the credit or
the account of such Guarantor against and on account of the Guarantied
Obligations and liabilities of such Guarantor to any Beneficiary under this
Guaranty.
12. Discharge of Guaranty Upon Sale of Guarantor. If all of
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the stock of a Guarantor or any of its successors in interest under this
Guaranty shall be sold or otherwise disposed of (including by merger or
consolidation) in a sale not prohibited by the Credit Agreement or otherwise
consented to by Required Lenders, the obligations of such Guarantor or such
successor in interest, as the case may be, hereunder shall automatically be
discharged and released without any further action by any Beneficiary or any
other Person effective as of the time of such sale; provided that, if the sale
of such stock constitutes a disposition of assets as a condition precedent to
such discharge and release, the Guarantied Party shall have received evidence
satisfactory to it that arrangements satisfactory to it have been made for
delivery to the Guarantied Party of the Net Cash Proceeds (if any) as required
by the Credit Agreement.
13. Amendments and Waivers. No amendment, modification,
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termination or waiver of any provision of this Guaranty, and no consent to any
departure by any Guarantor therefrom, shall in any event be effective without
the written concurrence of the Guarantied Party and, in the case of any such
amendment or modification, the Guarantors. Any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it was given.
14. Miscellaneous. It is not necessary for Beneficiaries
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to inquire into the capacity or powers of any Guarantor, the Borrower or FinServ
or the officers, directors or any agents acting or purporting to act on behalf
of any of them.
The rights, powers and remedies given to Beneficiaries by this
Guaranty are cumulative and shall be in addition to and independent of all
rights, powers and remedies given to Beneficiaries by virtue of any statute or
rule of law or in any of the Loan Documents or Hedge Bank Hedge Agreement or any
agreement between one or more Guarantors and one or more Beneficiaries or
between the Borrower or FinServ and one or more Beneficiaries. Any forbearance
or failure to exercise, and any delay by any Beneficiary in exercising, any
right, power or remedy hereunder shall not impair any such right, power or
remedy or be construed to be a waiver thereof, nor shall it preclude the further
exercise of any such right, power or remedy.
In case any provision in or obligation under this Guaranty
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER LAW.
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This Guaranty shall inure to the benefit of Beneficiaries and
their respective successors and assigns.
Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Guaranty or any
of the other Loan Documents to which it is a party, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the fullest extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Guaranty shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Guaranty or any of the other Loan Documents in the courts of
any jurisdiction.
Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Guaranty or any of the
other Loan Documents to which it is a party in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
Each of the parties hereto irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to the Guaranty or the
actions of any Agent, any Lender Party or any Hedge Bank in the negotiation,
administration, performance or enforcement thereof.
15. Additional Guarantors. The initial Guarantor(s) hereunder
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shall be such of the Material Domestic Subsidiaries of the Borrower as are
signatories hereto on the date hereof. From time to time subsequent to the date
hereof, Subsidiaries of the Borrower may become parties hereto, as additional
Guarantors (each an "ADDITIONAL GUARANTOR"), by executing a counterpart, a form
of which is attached as Exhibit A, of this Guaranty. Upon delivery of any such
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counterpart to the Guarantied Party, notice of which is hereby waived by the
Guarantors, each such Additional Guarantor shall be a Guarantor and shall be as
fully a party hereto as if such Additional Guarantor were an original signatory
hereof. Each Guarantor expressly agrees that its obligations arising hereunder
shall not be affected or diminished by the addition or release of any other
Guarantor hereunder, nor by any election of the Guarantied Party not to cause
any Subsidiary of the Borrower to become an Additional Guarantor hereunder. This
Guaranty shall be fully effective as to any Guarantor that is or becomes a party
hereto regardless of whether any other Person becomes or fails to become or
ceases to be a Guarantor hereunder.
16. Counterparts; Effectiveness. This Guaranty may be executed
---------------------------
in any number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall
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constitute one and the same agreement. This Guaranty shall become effective as
to each Guarantor upon the execution of a counterpart hereof by such Guarantor
(whether or not a counterpart hereof shall have been executed by any other
Guarantor) and receipt by the Guarantied Party of written or telephonic
notification of such execution and authorization of delivery thereof. Delivery
by telecopier of an executed counterpart of a signature page to this Guaranty
shall be effective as delivery of an original executed counterpart of this
Guaranty.
17. The Guarantied Party as Agent.
-----------------------------
(a) The Guarantied Party has been appointed to act as the
Guarantied Party hereunder by the Lenders. The Guarantied Party shall be
obligated, and shall have the right hereunder, to make demands, to give notices,
to exercise or refrain from exercising any rights, and to take or refrain from
taking any action, solely in accordance with this Guaranty and the Credit
Agreement.
(b) The Guarantied Party shall at all times be the same Person
that is the Administrative Agent under the Credit Agreement. Written notice of
resignation by the Administrative Agent pursuant to Section 7.07 of the Credit
Agreement shall also constitute notice of resignation as the Guarantied Party
under this Guaranty; and appointment of a successor administrative agent
pursuant to Section 7.07 of the Credit Agreement shall also constitute
appointment of a successor Guarantied Party under this Guaranty. Upon the
acceptance of any appointment as administrative agent under Section 7.07 of the
Credit Agreement by a successor administrative agent, that successor
administrative agent shall thereupon succeed to become vested with all the
rights, powers, privileges and duties of the retiring Guarantied Party under
this Guaranty, and the retiring Guarantied Party under this Guaranty shall
promptly (i) transfer to such successor Guarantied Party all sums held
hereunder, together with all records and other documents necessary or
appropriate in connection with the performance of the duties of the successor
Guarantied Party under this Guaranty, and (ii) take such other actions as may be
necessary or appropriate in connection with the assignment to such successor
Guarantied Party of the rights created hereunder, whereupon such retiring
Guarantied Party shall be discharged from its duties and obligations under this
Guaranty. After any retiring Guarantied Party's resignation hereunder as the
Guarantied Party, the provisions of this Guaranty shall inure to its benefits as
to any actions taken or omitted to be taken by it under this Guaranty while it
was the Guarantied Party hereunder.
(c) The Guarantied Party shall not be deemed to have any duty
whatsoever with respect to any Hedge Bank until it shall have received written
notice in form and substance satisfactory to the Guarantied Party from the
Borrower, a Guarantor or the Hedge Bank as to the existence and terms of the
applicable Hedge Bank Hedge Agreement.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
BATTERY STREET ENTERPRISES, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Address: --------------------------
--------------------------
--------------------------
LEVI XXXXXXX FINANCIAL CENTER
CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Address: --------------------------
--------------------------
--------------------------
LEVI XXXXXXX FUNDING, LLC
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Address: --------------------------
--------------------------
--------------------------
LEVI XXXXXXX GLOBAL FULFILLMENT
SERVICES, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Address: --------------------------
--------------------------
--------------------------
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LEVI XXXXXXX GLOBAL
OPERATIONS, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Address: --------------------------
--------------------------
--------------------------
LEVI XXXXXXX INTERNATIONAL
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Address: --------------------------
--------------------------
--------------------------
LEVI XXXXXXX LATIN AMERICA, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Address: --------------------------
--------------------------
--------------------------
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LEVI'S ONLY STORES, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Address: --------------------------
--------------------------
--------------------------
NF INDUSTRIES, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Address: --------------------------
--------------------------
--------------------------
ACKNOWLEDGED AND FOR PURPOSES
OF THE WAIVER OF JURY TRIAL SET
FORTH IN SECTION 14 ONLY, AGREED
AS OF THE DATE FIRST WRITTEN ABOVE
Bank of America, N.A., as Administrative Agent
By:_____________________________
Title: ___________________________
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Exhibit A to
Subsidiary Guaranty
[Form of] Counterpart for Additional Guarantors
This COUNTERPART (this "COUNTERPART"), dated _______, _____,
is delivered pursuant to Section 15 of the Guaranty referred to below. The
undersigned hereby agrees that this Counterpart may be attached to the Guaranty,
dated as of January __, 2001 (as it may be from time to time amended, amended
and restated, supplemented or otherwise modified, the "GUARANTY"; the terms
defined therein being used herein as therein defined), among the Guarantors
named therein and Bank of America, N.A., as the Guarantied Party. The
undersigned, by executing and delivering this Counterpart, hereby becomes an
Additional Guarantor under the Guaranty in accordance with Section 15 thereof
and agrees to be bound by all of the terms thereof.
IN WITNESS WHEREOF, the undersigned has caused this
Counterpart to be duly executed and delivered by its officer thereunto duly
authorized as of ______________, ____.
[NAME OF ADDITIONAL GUARANTOR]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Address: --------------------------
--------------------------
--------------------------
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