CONTINUING GUARANTY
Exhibit
10.12
TO: XXXXX
FARGO BANK, NATIONAL ASSOCIATION on this 6th day of November, 2009.
1.
GUARANTY;
DEFINITIONS. In consideration of any credit or other financial
accommodation heretofore, now or hereafter extended or made to PHYSICIANS
FORMULA, INC., a New York corporation (the “Company”) by XXXXX FARGO BANK,
NATIONAL ASSOCIATION (“Xxxxx Fargo”) pursuant to that certain Credit and
Security Agreement dated as of even date herewith by and between the Company and
Xxxxx Fargo (the “Credit Agreement”), and for other valuable consideration, the
undersigned PHYSICIANS FORMULA HOLDINGS, INC., a Delaware corporation
(“Guarantor”), jointly and severally unconditionally guarantees and promises to
pay to Xxxxx Fargo, or order, on demand in lawful money of the United States of
America and in immediately available funds, any and all
Indebtedness. The term “Indebtedness” is used in its most
comprehensive sense and means any debts, obligations and liabilities of Company
to Xxxxx Fargo, whether incurred in the past, present or future, whether
voluntary or involuntary, and however arising, and whether due or not due,
absolute or contingent, liquidated or unliquidated, determined or undetermined,
and including without limitation all obligations arising under any Rate Hedge
Agreement, derivative, foreign exchange, hedge, deposit, treasury management or
similar transaction or arrangement however described or defined that Company may
enter into at any time with Xxxxx Fargo or with Xxxxx Fargo Merchant Services,
L.L.C., whether or not Company may be liable individually or jointly with
others, or whether recovery upon such Indebtedness may subsequently
become unenforceable. This Guaranty is a guaranty of payment and not
collection. Capitalized terms used but not otherwise defined herein
shall have the meanings accorded them in the Credit Agreement.
2.
SUCCESSIVE
TRANSACTIONS; REVOCATION; OBLIGATION UNDER OTHER
GUARANTIES. This is a continuing guaranty and all rights,
powers and remedies hereunder shall apply to all past, present and future
Indebtedness, including that which arises under successive
transactions which shall either continue the Indebtedness, increase or decrease
it, or from time to time create new Indebtedness after all or any prior
Indebtedness has been satisfied, and notwithstanding the death, incapacity,
dissolution, liquidation or bankruptcy of Company or Guarantor or any other
event or proceeding affecting either Company or Guarantor. This
Guaranty shall not apply to any new Indebtedness created after actual receipt by
Xxxxx Fargo of written notice of Guarantor’s revocation as to such new
Indebtedness; provided however, that loans or advances made by Xxxxx Fargo to
Company after revocation under commitments existing prior to receipt by Xxxxx
Fargo of such revocation, and extensions, renewals or modifications, of any
kind, of Indebtedness incurred by Company or committed by Xxxxx Fargo prior to
receipt by Xxxxx Fargo of such notice of revocation, shall not be considered new
Indebtedness. Any such notice must be sent to Xxxxx Fargo by
registered U.S. mail, postage prepaid, addressed to its office at 000 X. Xxx
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000,
Attn: Relationship Manager—Physicians Formula, or at such other
address as Xxxxx Fargo shall from time to time designate. The
obligations of Guarantor under this Guaranty shall be in addition to any
obligations of Guarantor under any other guaranties of any liabilities or
obligations of Company or other persons that may be given to Xxxxx Fargo at any
time, unless the other guaranties are expressly modified or revoked in writing;
and this Guaranty shall not, unless expressly provided for in this Guaranty,
affect or invalidate any such other guaranties.
Guaranty
of Physicians Formula Holdings, Inc.
WFBC/Physicians
Formula
1
3.
OBLIGATIONS JOINT AND
SEVERAL; SEPARATE ACTIONS; WAIVER OF STATUTE OF LIMITATIONS; REINSTATEMENT OF
LIABILITY. The obligations of Guarantor under this Guaranty
are joint and several and independent of the obligations of Company, and a
separate action or actions may be brought and prosecuted against Guarantor,
whether the action is brought against Company or other persons, or whether
Company or other persons are joined in any such action or
actions. Guarantor acknowledges that this Guaranty is absolute and
unconditional, that there are no conditions precedent to the effectiveness of
this Guaranty, and that this Guaranty is in full force and effect and binding on
Guarantor as of the date written above, regardless of whether Xxxxx Fargo
obtains collateral or any guaranties from others or takes any other action
contemplated by Guarantor. To the extent permitted by applicable law,
Guarantor waives the benefit of any statute of limitations affecting the
enforcement of Guarantor’s liability under this Guaranty, and Guarantor agrees
that any payment of any Indebtedness or other act which shall toll any
applicable statute of limitations shall similarly toll the statute of
limitations applicable to Guarantor’s liability under this
Guaranty. The liability of Guarantor hereunder shall be reinstated
and revived and the rights of Xxxxx Fargo shall continue if and to the extent
for any reason any amount at any time paid on account of any Indebtedness
guaranteed hereby is rescinded or must otherwise be restored by Xxxxx Fargo,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise, all as though such amount had not been paid. The
determination as to whether any amount so paid must be rescinded or restored
shall be made by Xxxxx Fargo in its sole discretion; provided however, that if
Xxxxx Fargo chooses to contest any such matter at the request of Guarantor,
Guarantor agrees to indemnify and hold Xxxxx Fargo harmless from and against all
costs and expenses, including reasonable attorneys’ fees, expended or incurred
by Xxxxx Fargo in connection therewith, including without limitation, in any
litigation with respect thereto.
Guaranty
of Physicians Formula Holdings, Inc.
WFBC/Physicians
Formula
2
5.
REPRESENTATIONS AND
WARRANTIES. Guarantor represents and warrants to Xxxxx Fargo
that: (a) this Guaranty is executed at Company’s request; (b) except in
favor of Xxxxx Fargo, Guarantor shall not, without Xxxxx Fargo’s prior written
consent, sell, lease, assign, encumber, hypothecate, transfer or otherwise
dispose of all or a substantial or material part of Guarantor’s assets other
than in the ordinary course of Guarantor’s business; (c) Xxxxx Fargo has made no
representation to Guarantor as to the creditworthiness of Company; and (d)
Guarantor has established adequate means of obtaining from Company on a
continuing basis financial and other information pertaining to Company’s
financial condition. Guarantor agrees to keep adequately informed of
any facts, events or circumstances which might in any way be reasonably expected
to have a material affect on Guarantor’s liability under this Guaranty, and
Guarantor further agrees that Xxxxx Fargo shall have no obligation to disclose
to Guarantor any information or material about Company which is acquired by
Xxxxx Fargo in any manner.
6.
GUARANTOR’S
WAIVERS.
6.1 Guarantor
waives any right to require Xxxxx Fargo to: (i) proceed against
Company or any other person; (ii) marshal assets or proceed against or
exhaust any security granted by Company or any other person; (iii) give
notice of the terms, time and place of any public or private sale or other
disposition of personal property security granted by Company or any other
person; (iv) take any other action or pursue any other remedy in Xxxxx Fargo’s
power; or (v) make any presentment or demand for performance, or give any notice
of nonperformance, protest, notice of protest or notice of dishonor hereunder or
in connection with any obligations or evidences of indebtedness held by Xxxxx
Fargo as security for or which constitute in whole or in part the Indebtedness
guaranteed hereunder, or in connection with the creation of new or additional
Indebtedness.
6.2 Guarantor
waives any defense to its obligations hereunder (other than payment in full of
the Indebtedness, other than contingent indemnification obligations for which no
claim has been asserted) based upon or arising by reason of: (i) any
disability or other defense of Company or any other person; (ii) the cessation
or limitation from any cause whatsoever, other than payment in full, of the
Indebtedness, other than contingent indemnification obligations for which no
claim has been asserted; (iii) any lack of authority of any officer, director,
partner, agent or any other person acting or purporting to act on behalf of
Company, if it is a corporation, partnership or other type of entity, or any
defect in the formation of Company; (iv) the application by Company of the
proceeds of any Indebtedness for purposes other than the purposes represented by
Company to, or intended or understood by, Xxxxx Fargo or Guarantor; (v) any act
or omission by Xxxxx Fargo which directly or indirectly results in or aids the
discharge of Company or any portion of the Indebtedness by operation of law or
otherwise, or which in any way impairs or suspends any rights or remedies of
Xxxxx Fargo against Company, provided, that any such act or omission
is not the product of Xxxxx Fargo’s gross negligence, bad faith or willful
misconduct; (vi) any impairment of the value of any interest in any security for
the Indebtedness or any portion thereof, including without limitation, the
failure to obtain or maintain perfection or recordation of any interest in any
such security, the release of any such security without substitution, and/or the
failure to preserve the value of, or to comply with applicable law in disposing
of, any such security; (vii) any modification of the Indebtedness, in any form
whatsoever, including any modification made after revocation hereof to any
Indebtedness incurred prior to such revocation, and including without limitation
the renewal, extension, acceleration or other change in time for payment of, or
other change in the terms of, the Indebtedness or any portion thereof, including
increase or decrease of the rate of interest thereon; or (viii) any requirement
that Xxxxx Fargo give any notice of acceptance of this
Guaranty. Until all Indebtedness has been paid in full (other than
contingent indemnification obligations for which no cliam has been asserted),
Guarantor shall have no right of subrogation, and Guarantor waives any right to
enforce any remedy which Xxxxx Fargo now has or may hereafter have against
Company or any other person, and waives any benefit of, or any right to
participate in, any security now or hereafter held by Xxxxx
Fargo. Guarantor further waives all rights and defenses Guarantor may
have (other than payment in full of the Indebtedness) arising out of (A) any
election of remedies by Xxxxx Fargo, even though that election of remedies, such
as a non-judicial foreclosure with respect to any security for any portion of
the Indebtedness, destroys Guarantor’s rights of subrogation or Guarantor’s
rights to proceed against Company for reimbursement, or (B) any loss of
rights Guarantor may suffer by reason of any rights, powers or remedies of
Company in connection with any anti-deficiency laws or any other laws limiting,
qualifying or discharging Company’s Indebtedness, whether by operation of law or
otherwise, including any rights Guarantor may have to a fair market value
hearing to determine the size of a deficiency following any foreclosure sale or
other disposition of any real property security for any portion of the
Indebtedness.
Guaranty
of Physicians Formula Holdings, Inc.
WFBC/Physicians
Formula
3
7.
XXXXX FARGO ’S RIGHTS WITH
RESPECT TO GUARANTOR’S PROPERTY IN ITS POSSESSION. In addition
to all liens upon and rights of setoff against the monies, securities or other
property of Guarantor given to Xxxxx Fargo by law, Xxxxx Fargo shall have a lien
upon and a right of setoff against all monies, securities and other property of
Guarantor now or hereafter in the possession of or on deposit with Xxxxx Fargo,
whether held in a general or special account or deposit or for safekeeping or
otherwise, and every such lien and right of setoff may be exercised without
demand upon or notice to Guarantor; provided that Xxxxx Fargo shall only
exercise such lien or right of setoff during a Default Period. No
lien or right of setoff shall be deemed to have been waived by any act or
conduct on the part of Xxxxx Fargo, or by any neglect to exercise such right of
setoff or to enforce such lien, or by any delay in so doing, and every right of
setoff and lien shall continue in full force and effect until such right of
setoff or lien is specifically waived or released by Xxxxx Fargo in
writing.
8.
SUBORDINATION. Any
indebtedness of Company now or hereafter held by Guarantor is hereby
subordinated to the Indebtedness. Such indebtedness of Company to
Guarantor is assigned to Xxxxx Fargo as security for this Guaranty and the
Indebtedness and, if Xxxxx Fargo requests, shall be collected and received by
Guarantor as trustee for Xxxxx Fargo and paid over to Xxxxx Fargo on account of
the Indebtedness but without reducing or affecting in any manner the liability
of Guarantor under the other provisions of this Guaranty. Any notes
or other instruments now or hereafter evidencing such indebtedness of Company to
Guarantor shall be marked with a legend that indicates that the notes or other
instruments are subject to this Guaranty and, if Xxxxx Fargo requests in
writing, such notes and instruments constituting collateral in an amount in
excess of fifty thousand dollars( $50,000), individually or in the aggregate,
shall be delivered to Xxxxx Fargo. Xxxxx Fargo is hereby authorized in the name
of Guarantor from time to time to file financing statements and continuation
statements and execute such other documents and take such other action as Xxxxx
Fargo deems reasonably necessary or appropriate to perfect, preserve and enforce
its rights hereunder.
Guaranty
of Physicians Formula Holdings, Inc.
WFBC/Physicians
Formula
4
9.
REMEDIES; NO
WAIVER. All rights, powers and remedies of Xxxxx Fargo
hereunder are cumulative. No delay, failure or discontinuance of
Xxxxx Fargo in exercising any right, power or remedy hereunder shall affect or
operate as a waiver of such right, power or remedy; nor shall any single or
partial exercise of any such right, power or remedy preclude, waive or otherwise
affect any other or further exercise thereof or the exercise of any other right,
power or remedy. Any waiver, permit, consent or approval of any kind
by Xxxxx Fargo of any breach of this Guaranty, or any such waiver of any
provisions or conditions hereof, must be in writing and shall be effective only
to the extent set forth in writing.
10. COSTS, EXPENSES AND
ATTORNEYS’ FEES. Guarantor shall pay to Xxxxx Fargo
immediately upon demand the full amount of all payments, advances, charges,
costs and expenses, including reasonable attorneys’ fees, expended or incurred
by Xxxxx Fargo in connection with the enforcement of any of Xxxxx Fargo’s
rights, powers or remedies and/or the collection of any amounts which become due
to Xxxxx Fargo under this Guaranty, and the prosecution or defense of any action
in any way related to this Guaranty, whether incurred at the trial or appellate
level, in an arbitration proceeding or otherwise, and including any of the
foregoing incurred in connection with any bankruptcy proceeding (including
without limitation, any adversary proceeding, contested matter or motion brought
by Xxxxx Fargo or any other person) relating to Guarantor or any other person or
entity. All of the foregoing shall be paid by Guarantor with interest
from the date of demand until paid in full at a rate equal to the
floating rate applicable to advances under the Line of Credit.
11. SUCCESSORS;
ASSIGNMENT. This Guaranty shall be binding upon and inure to
the benefit of the heirs, executors, administrators, legal representatives,
successors and assigns of the parties; provided however, that Guarantor may not
assign or transfer any of its interests or rights hereunder without Xxxxx
Fargo’s prior written consent. Guarantor acknowledges that Xxxxx
Fargo has the right to sell, assign, transfer, negotiate or grant participations
in all or any part of, or any interest in, the Indebtedness and any obligations
with respect thereto, including this Guaranty. In connection
therewith, Xxxxx Fargo may disclose all documents and information which Xxxxx
Fargo now has or hereafter acquires relating to Guarantor and/or this Guaranty,
whether furnished by Company, Guarantor or otherwise in accordance with Section
7.11 of the Credit Agreement. Guarantor further agrees that Xxxxx
Fargo may disclose such documents and information to Company.
12. AMENDMENT. This
Guaranty may be amended or modified only in writing signed by Xxxxx Fargo and
Guarantor.
13. APPLICATION OF SINGULAR AND
PLURAL. In all cases where there is more than one Company
named in this instrument, then the term “Company” shall be deemed to have been
used in the plural where context and construction so require; and when this
Guaranty is executed by more than one Guarantor, the word “Guarantor” shall mean
all or any one or more of them as the context requires.
14. UNDERSTANDING WITH RESPECT
TO WAIVERS; SEVERABILITY OF PROVISIONS. Guarantor warrants and
agrees that each of the waivers set forth herein is made with Guarantor’s full
knowledge of its significance and consequences, and that under the
circumstances, the waivers are reasonable and not contrary to public policy or
law. If any waiver or other provision of this Guaranty shall be held
to be prohibited by or invalid under applicable public policy or law, such
waiver or other provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such waiver or
other provision or any remaining provisions of this Guaranty.
Guaranty
of Physicians Formula Holdings, Inc.
WFBC/Physicians
Formula
5
15. GOVERNING
LAW. This Guaranty shall be governed by and construed in
accordance with the laws of the State of California.
16. ARBITRATION.
16.1 Arbitration. Xxxxx
Fargo and Guarantor agree, upon demand by either party, to submit to binding
arbitration all claims, disputes and controversies between or among them (and
their respective employees, officers, directors, attorneys, and other agents),
whether in tort, contract or otherwise, in any way arising out of or relating to
this Guaranty and its negotiation, execution, collateralization, administration,
repayment, modification, extension, substitution, formation, inducement,
enforcement, default or termination.
16.2 Governing
Rules. Any arbitration proceeding will (i) proceed in a
location in Los Angeles, California selected by the American Arbitration
Association (“AAA”); (ii) be governed by the Federal Arbitration Act (Title 9 of
the United States Code), notwithstanding any conflicting choice of law provision
in any of the documents between the parties; and (iii) be conducted by the AAA,
or such other administrator as the parties shall mutually agree upon, in
accordance with the AAA’s commercial dispute resolution procedures, unless the
claim or counterclaim is at least $1,000,000.00 exclusive of claimed interest,
arbitration fees and costs in which case the arbitration shall be conducted in
accordance with the AAA’s optional procedures for large, complex commercial
disputes (the commercial dispute resolution procedures or the optional
procedures for large, complex commercial disputes to be referred to herein, as
applicable, as the “Rules”). If there is any inconsistency between
the terms hereof and the Rules, the terms and procedures set forth herein shall
control. Any party who fails or refuses to submit to arbitration
following a demand by any other party shall bear all costs and expenses incurred
by such other party in compelling arbitration of any dispute. Nothing
contained herein shall be deemed to be a waiver by any party that is a bank of
the protections afforded to it under 12 U.S.C. §91 or any similar applicable
state law.
16.3 No Waiver of Provisional
Remedies, Self-Help and Foreclosure. The arbitration
requirement does not limit the right of any party to (i) foreclose against real
or personal property collateral; (ii) exercise self-help remedies relating to
collateral or proceeds of collateral such as setoff or repossession; or (iii)
obtain provisional or ancillary remedies such as replevin, injunctive relief,
attachment or the appointment of a receiver, before, during or after the
pendency of any arbitration proceeding. This exclusion does not
constitute a waiver of the right or obligation of any party to submit any
dispute to arbitration or reference hereunder, including those arising from the
exercise of the actions detailed in sections (i), (ii) and (iii) of this
paragraph.
Guaranty
of Physicians Formula Holdings, Inc.
WFBC/Physicians
Formula
6
16.4 Arbitrator Qualifications
and Powers. Any arbitration proceeding in which the amount in
controversy is $5,000,000.00 or less will be decided by a single arbitrator
selected according to the Rules, and who shall not render an award of greater
than $5,000,000.00. Any dispute in which the amount in controversy
exceeds $5,000,000.00 shall be decided by majority vote of a panel of three
arbitrators; provided however, that all three arbitrators must actively
participate in all hearings and deliberations. The arbitrator will be
a neutral attorney licensed in the State of California or a neutral retired
judge of the state or federal judiciary of California, in either case with a
minimum of ten years experience in the substantive law applicable to the subject
matter of the dispute to be arbitrated. The arbitrator will determine
whether or not an issue is arbitratable and will give effect to the statutes of
limitation in determining any claim. In any arbitration proceeding
the arbitrator will decide (by documents only or with a hearing at the
arbitrator’s discretion) any pre-hearing motions which are similar to motions to
dismiss for failure to state a claim or motions for summary
adjudication. The arbitrator shall resolve all disputes in accordance
with the substantive law of California and may grant any remedy or relief that a
court of such state could order or grant within the scope hereof and such
ancillary relief as is necessary to make effective any award. The
arbitrator shall also have the power to award recovery of all costs and fees, to
impose sanctions and to take such other action as the arbitrator deems necessary
to the same extent a judge could pursuant to the Federal Rules of Civil
Procedure, the California Code of Civil Procedure or other applicable
law. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction. The institution and
maintenance of an action for judicial relief or pursuit of a provisional or
ancillary remedy shall not constitute a waiver of the right of any party,
including the plaintiff, to submit the controversy or claim to arbitration if
any other party contests such action for judicial relief.
16.5 Discovery. In
any arbitration proceeding, discovery will be permitted in accordance with the
Rules. All discovery shall be expressly limited to matters directly
relevant to the dispute being arbitrated and must be completed no later than 20
days before the hearing date. Any requests for an extension of the
discovery periods, or any discovery disputes, will be subject to final
determination by the arbitrator upon a showing that the request for discovery is
essential for the party’s presentation and that no alternative means for
obtaining information is available.
16.6 Class Proceedings and
Consolidations. No party hereto shall be entitled to join or
consolidate disputes by or against others in any arbitration, except parties who
have executed this Guaranty or any other contract, instrument or document
relating to any Indebtedness, or to include in any arbitration any dispute as a
representative or member of a class, or to act in any arbitration in the
interest of the general public or in a private attorney general
capacity.
16.7 Payment Of Arbitration Costs
And Fees. The arbitrator shall award all costs and expenses of
the arbitration proceeding.
16.8 Miscellaneous. To
the maximum extent practicable, the AAA, the arbitrators and the parties shall
take all action required to conclude any arbitration proceeding within 180 days
of the filing of the dispute with the AAA. No arbitrator or other
party to an arbitration proceeding may disclose the existence, content or
results thereof, except for disclosures of information by a party required in
the ordinary course of its business or by applicable law or
regulation. If more than one agreement for arbitration by or between
the parties potentially applies to a dispute, the arbitration provision most
directly related to the documents between the parties or the subject matter of
the dispute shall control. This arbitration provision shall survive
termination, amendment or expiration of any of the documents or any relationship
between the parties.
[Signature
on next page]
Guaranty
of Physicians Formula Holdings, Inc.
WFBC/Physicians
Formula
7
IN WITNESS WHEREOF, the undersigned
Guarantor has executed this Guaranty as of the date first set forth
above.
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By:
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/s/ Xxxxxx Xxxxxx
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Print
Name:
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Xxxxxx Xxxxxx
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Title:
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Chief Executive Officer
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Guaranty
of Physicians Formula Holdings, Inc.
WFBC/Physicians
Xxxxxxx
X-0
