Exhibit 10.10
GUARANTY AGREEMENT
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This 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 8, 2004, by each of the
undersigned Guarantors with respect to the indebtedness, liabilities, and
obligations of Xxxxxxxx'x Inc., a Delaware corporation (the "Company"), under
the Letter Agreements defined hereinbelow, as follows:
Recitals:
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A. This Guaranty Agreement is required by the Letter
Agreements (as defined below), and each Guarantor's execution and delivery
hereof is a condition (among other conditions) to the extension of trade
credit to the Company under the Letter Agreements.
B. Concurrently herewith, Guarantors and the Collateral
Trustee have executed and entered into the Security Agreement, which provides
for the obligations hereunder to be secured on the terms and conditions
prescribed therein.
C. Each Guarantor has determined that (i) it will directly
and indirectly benefit from the availability of financing to Company under the
Letter Agreements, (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
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. Definitions:
(a) The following terms shall have the following
meanings where used in this Guaranty Agreement:
"Approved Trade Creditors" means each creditor who is a
party to a Letter Agreement.
"Collateral Trust Agreement" means that certain Collateral
Trust Agreement, dated as of the date hereof, among Xxxxxxxx'x Inc. and other
parties identified therein, as Grantors, and Xxxxxxx Xxxx as Collateral
Trustee.
"Collateral Trustee" means Xxxxxxx Xxxx, in its capacity as
collateral trustee for the Approved Trade Creditors under the Letter
Agreements and the Collateral Trust Agreement.
"Guaranteed Obligations" means, at any time, all
indebtedness, liabilities, and obligations of Company that are to be secured
pursuant to the terms of any Letter Agreement.
"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, and
in each such case their respective successors and assigns, and "Guarantors"
means all of such Persons, collectively.
"Letter Agreements" means, collectively, each Secured Trade
Credit Program Letter Agreement (each, together with the "Terms and Conditions
and Statement of Qualifications" attached thereto, a "Letter Agreement")
executed and delivered from time to time by a trade creditor of Company and
accepted in writing by Company.
"Security Agreement" means that certain Security Agreement,
dated as of September 8, 2004 and entered into by and among Company,
Guarantors and Collateral Trustee, as amended, supplemented or otherwise
modified from time to time.
"Trade Creditor Lien Documents" means, collectively, this
Guaranty, the Security Agreement, the Collateral Trust Agreement, the
Intercreditor Agreement and the Letter Agreements.
(b) Terms defined in the Collateral Trust Agreement,
wherever used herein, unless otherwise defined herein, shall have the
same meanings in this Guaranty Agreement as are set forth in the
Collateral Trust 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.
2. Guaranty of Guaranteed Obligations. This Guaranty
Agreement is executed by each Guarantor pursuant to the Letter Agreements and
is for the benefit of the Collateral Trustee and the Approved Trade Creditors.
As an inducement to the Approved Trade Creditors to extend and continue to
extend credit and other financial accommodations to Company under the Letter
Agreements, 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 applicable 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 Company or other Person pursuant to any applicable law
or any agreement providing for an equitable allocation among such Guarantor
and any such other Person of their respective obligations thereunder.
3. Nature of Guaranty; Limited Recourse. 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, subject to the terms and conditions of the
Intercreditor Agreement, the Guaranteed Obligations will be paid strictly in
accordance with the terms of the Letter Agreements, without setoff or
counterclaim, and regardless of any applicable law now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of the
Collateral Trustee and the Approved Trade Creditors with respect thereto.
Subject to the terms and provisions of the Intercreditor Agreement, 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 Company 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 Collateral Trustee and the Approved Trade Creditors that,
except as otherwise provided in this Guaranty Agreement, 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 Company or
any other Person now or hereafter obligated in respect of the Guaranteed
Obligations).
Notwithstanding anything to the contrary in this Guarantee
Agreement or any other Trade Creditor Lien Document, the Collateral Trustee
hereby acknowledges, and each Approved Trade Creditor by execution of the
Letter Agreement to which it is a party hereby acknowledges, that (a) the
performance of the Guaranteed Obligations by each Guarantor shall be enforced
solely against the Collateral, (b) any such enforcement shall be subject to
the provisions of the other Trade Creditor Lien Documents, (c) no deficiency
after applying the net proceeds received from any foreclosure or sale of the
Collateral (or any part thereof) shall ever be asserted against any Guarantor,
and (d) the obligations of the Guarantors and the rights and remedies of the
Approved Trade Creditors and the Collateral Trustee hereunder shall be subject
to the terms and provisions of the Intercreditor Agreement.
4. Representations and Warranties. Each Guarantor hereby
represents and warrants to the Collateral Trustee and the Approved Trade
Creditors 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 Letter Agreements and the other Trade
Creditor Lien 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
Company 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 Company 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
Trade Creditor Lien Documents. Such Guarantor is familiar with, and
has had an opportunity to review the books and records regarding, the
financial condition of Company 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
Company. 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 the
Collateral Trustee nor any Approved Trade Creditor has made any
representation, warranty, or statement to such Guarantor in order to
induce such Guarantor to execute this Guaranty Agreement.
5. Obligations Not Impaired. Each Guarantor agrees that,
subject to the provisions of paragraph 3 hereof and the terms and provisions
of the Intercreditor Agreement, 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
Company; (b) any receivership, insolvency, bankruptcy, or other proceedings
affecting Company or any of its respective property; (c) partial or total
release or discharge of Company 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 applicable 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 Trade Creditor Lien 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 any
collateral securing all or any part of the Guaranteed Obligations or on any
other guaranty of the Guaranteed Obligations; (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
applicable law; (j) any merger, reorganization, consolidation, or dissolution
of Company, any Guarantor, or any other guarantor of the Guaranteed
Obligations, any sale, lease, or transfer of any or all of the assets of
Company, any Guarantor, or any other guarantor of the Guaranteed Obligations,
or any change in name, business, organization, location, composition,
structure, or organization of Company, any Guarantor, or any other guarantor
of the Guaranteed Obligations; (k) any change in the shareholders of Company,
any Guarantor, or any other guarantor of the Guaranteed Obligations; (l) any
invalidity or unenforceability of or defect or deficiency in any of the Trade
Creditor Lien 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 Company because any interest
contracted for, charged, or received in respect of the Guaranteed Obligations
exceeds the amount permitted by any applicable law; (o) any waiver, consent,
extension, forbearance, or granting of any indulgence by the Collateral
Trustee or the Approved Trade Creditors with respect to the Guaranteed
Obligations or any provision of any of the Trade Creditor Lien Documents; (p)
any delay in or lack of enforcement of any remedies under the Trade Creditor
Lien 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 the Collateral Trustee or the
Approved Trade Creditors; (s) any of the Trade Creditor Lien Documents were
forged; (t) the election by the Collateral Trustee or any of the Approved
Trade Creditors 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 Company, 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 the Collateral Trustee or any of the Approved Trade Creditors
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 Company or any Guarantor (other than that the
Guaranteed Obligations shall have been paid and performed in full).
6. Consent and Waiver.
(a) Each Guarantor hereby waives to the fullest extent
permitted by applicable law: (i) notice of acceptance of this
Guaranty Agreement; (ii) notice of any Letter Agreements or the
creation or existence of any Guaranteed Obligations; (iii) notice of
the amount of the Guaranteed Obligations; (iv) notice of any adverse
change in the financial condition of Company 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, Company,
or any other Person under this Guaranty Agreement; (v) 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 Trade Creditor
Lien Documents to which such Guarantor is a party); (vi) any
requirement that the Collateral Trustee or any of the Approved Trade
Creditors protect, secure, perfect, or insure the Collateral
Trustee's lien on any Collateral or other property as security for
the Guaranteed Obligations or exhaust any right or take any action
against Company 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 on 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 Company or any
other Person; or (x) any other defense of Company or any other Person
(other than that the Guaranteed Obligations shall have been paid and
performed in full).
(b) Subject to the provisions of paragraph 3, each
Guarantor hereby waives and agrees not to assert against the
Collateral Trustee or any Approved Trade Creditor, to the extent
allowed by any applicable law: (i) any defense, setoff, counterclaim,
or claim of any kind or nature available to Company or any other
Person against the Collateral Trustee or any Approved Trade Creditor,
arising directly or indirectly from the present or future lack of
perfection, sufficiency, validity, or enforceability of the
Guaranteed Obligations or any lien on 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 the Collateral Trustee or any Approved
Trade Creditor under any applicable law.
(c) Each Guarantor waives, and agrees that, except as
otherwise provided in paragraph 3 hereof, its liability hereunder
shall not be affected by, any neglect, delay, omission, failure, or
refusal of the Collateral Trustee or any Approved Trade Creditor 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 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 Company, such Guarantor, 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;
(d) Subject to paragraph 3 hereof and the Intercreditor
Agreement and the Collateral Trust Agreement, the Collateral Trustee
may at any time, without the consent of or notice to any Guarantor,
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 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
Trade Creditor Lien Documents; (iv) exercise or refrain from
exercising any rights against Company 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 Collateral Trustee or the Approved Trade Creditors or
others; (vi) apply any deposit balance, fund, payment, collections
through process of law or otherwise or other property of Company to
the satisfaction and liquidation of indebtedness or obligations of
any of Company to the Collateral Trustee or the Approved Trade
Creditors, if any, not guaranteed under this Guaranty Agreement;
(vii) release all or any one or more parties to any one or more of
the Trade Creditor Lien Documents or grant other indulgences to
Company 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 Trade Creditor Lien 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
Collateral Trustee in such manner as the Collateral Trustee may
elect, subject to the Trade Creditor Lien Documents; and (xi) apply
any sums paid to the Collateral Trustee or the Approved Trade
Creditors by any Guarantor, or Company, or any other Person to the
Guaranteed Obligations as provided by the Trade Creditor Lien
Documents.
(e) Subject to the terms and provisions of the
Intercreditor Agreement, should the Collateral Trustee 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
Company, 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 Company
or any other such Person should be joined in such cause or (ii)
except as provided in paragraph 3 hereof, 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 Collateral Trustee's right, at its option, but subject to the
terms and provisions of the Intercreditor Agreement, to proceed
against Company or any other Person, whether by separate action or by
joinder.
(f) Each Guarantor hereby assumes sole responsibility
for keeping itself informed of the financial condition of Company 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 the Collateral Trustee nor any
Approved Trade Creditor shall have any obligation or duty to advise
such Guarantor of information known to any of them regarding such
condition or any such circumstance.
(g) Each Guarantor consents and agrees that, except as
provided in the Intercreditor Agreement, neither the Collateral
Trustee nor any of the Approved Trade Creditors 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.
(h) Each Guarantor agrees that to the extent permitted
under the Trade Creditor Lien Documents and any applicable law the
Collateral Trustee 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.
(i) Each Guarantor agrees that neither the Collateral
Trustee nor any Approved Trade Creditors 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. No Waiver, Remedies.
(a) No failure on the part of the Collateral Trustee to
exercise, and no delay or omission by the Collateral Trustee 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 Trustee, 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 applicable law or
any of the other Trade Creditor Lien Documents.
Failure by the Collateral Trustee or any Approved Trade Creditor at
any time or times hereafter to require strict performance by Company,
any Guarantor, or any other Person, of any of the requirements
contained in any of the Trade Creditor Lien Documents now or at any
time, from time to time, hereafter executed and delivered by Company,
any Guarantor, 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 the Collateral Trustee or any
Approved Trade Creditor, or any agent, officer, or employee thereof,
respectively.
8. Cumulative Remedies; No Election.
(a) 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 the, Collateral Trustee hereunder shall be
cumulative of any and all other rights and remedies that the
Collateral Trustee or any Approved Trade Creditor may ever have
against such Guarantor. All rights and remedies of the Collateral
Trustee hereunder are cumulative of each other and of every other
right or remedy which the Collateral Trustee or any Approved Trade
Creditor 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 the Collateral
Trustee or any Approved Trade Creditor 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. Subject to the terms and
provisions of the Intercreditor Agreement, this Guaranty Agreement
may be enforced from time to time as often as occasion for
enforcement may arise as may be determined by the Collateral Trustee,
and it is agreed and understood that it shall not be necessary for
the Collateral Trustee, in order to enforce payment by any Guarantor,
first to exercise any rights or remedies against Company or any other
Person under the Trade Creditor Lien Documents or any applicable law.
(b) Nothwithstanding anything to the contrary in this
Agreement or in the Trade Creditor Lien Documents, (i) the Collateral
Trustee shall have no rights, power or authority with respect to the
Guaranty which are greater than the rights, power or authority that
would have been conferred upon the Approved Trade Creditors if this
Guaranty had been made in favor of the Approved Trade Creditors, and
(ii) the Collateral Trustee has only the rights, powers and authority
conferred upon the Collateral Trustee under the terms of the
Collateral Trust Agreement.
9. Binding Effect. Neither the Collateral Trustee nor the
Approved Trade Creditors may assign their rights and/or duties hereunder
without the prior written consent of the Guarantors given at the Guarantors'
sole discretion, except as provided in the Letter Agreements, it being
understood that any such assignee's rights with respect to the Collateral and
this Guaranty Agreement shall be limited as set forth herein. Any other
attempted assignment by any Approved Trade Creditor without the Guarantors'
prior written consent, other than as set forth in the immediately preceding
sentence, shall be void and shall void such Approved Trade Creditor's
participation in the Program (as defined in the applicable Letter Agreement)
in accordance with the applicable Letter Agreement. This Guaranty Agreement is
binding upon each Guarantor, and its successors and assigns
10. 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 Trade Creditor Lien Document, supersede such inconsistent
provision.
11. 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 Trade Creditor Lien Document
evidencing the Guaranteed Obligations shall require the payment or permit the
collection of interest in excess of the maximum permitted by any applicable
law.
12. Modifications; Termination.
(a) 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 Trustee 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; provided that
notwithstanding anything to the contrary set forth herein, (i) this
Guaranty Agreement may be terminated as provided below in this
paragraph 12 and (ii) this Guaranty Agreement may be amended or
otherwise modified from time to time (A) as provided in the
Intercreditor Agreement and (B) by notice from any Guarantor to the
Collateral Trustee and the Trust Board (except that no such
modification or termination under this clause (ii)(B) that adversely
affects the Collateral Trustee or the Approved Trade Creditors in any
material respect shall be effective as to any guaranty hereunder of
any Guaranteed Obligations outstanding at the time of such notice
unless agreed to in writing by the Collateral Trustee).
(b) Upon the payment in full of all Guaranteed
Obligations under the Letter Agreements this Guaranty Agreement shall
automatically terminate.
(c) The guaranties hereunder shall cease to apply to
any Guaranteed Obligations to an Approved Trade Creditor to the
extent such Guaranteed Obligations cease to be secured under the
Security Agreement in accordance with the terms of any Letter
Agreement with such Approved Trade Creditor.
(d) The guaranty hereunder of any Guarantor shall
automatically terminate if and when such Guarantor is conveyed, sold
or otherwise transferred or disposed of in accordance with the terms
of the Senior Credit Agreement, the Senior Security Agreements or the
Intercreditor Agreement.
Upon any termination of this Guaranty Agreement, Collateral Trustee
will, at Guarantors' expense, execute and deliver to Guarantors such documents
as any Guarantor shall reasonably request to evidence such termination.
13. Governing Law; Choice of Forum: Service of Process.
(a) THIS GUARANTY AGREEMENT SHALL BE INTERPRETED AND
THE RIGHTS AND LIABILITIES OF THE GUARANTORS, THE COLLATERAL TRUSTEE,
AND THE APPROVED TRADE CREDITORS SHALL BE DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
(b) ALL JUDICIAL PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS GUARANTY AGREEMENT, OR ANY OBLIGATIONS HEREUNDER, MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN
THE STATE OF GEORGIA, CHATHAM COUNTY OR THE STATE OF NEW YORK, NEW
YORK COUNTY. BY EXECUTING AND DELIVERING THIS GUARANTY AGREEMENT,
GUARANTOR, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
IRREVOCABLY (I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II) WAIVES ANY
DEFENSE OF FORUM NON CONVENIENS; (III) AGREES THAT SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO SUCH
GUARANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH PARAGRAPH 14;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH GUARANTOR IN ANY
SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (V) AGREES THAT
COLLATERAL TRUSTEE RETAINS THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH
GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION.
14. 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
Collateral Trust Agreement.
15. Survival. All representations, warranties, covenants,
and agreements of each Guarantor in this Guaranty Agreement shall survive the
execution of this Guaranty Agreement.
16. 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.
17. Litigation: Waiver of Trial by Jury. GUARANTORS AND
COLLATERAL TRUSTEE HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
GUARANTY AGREEMENT. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including without
limitation contract claims, tort claims, breach of duty claims, and all other
common law and statutory claims. Guarantors and Collateral Trustee acknowledge
that this waiver is a material inducement for Guarantors and Collateral
Trustee to enter into a business relationship, that Guarantors and Collateral
Trustee have already relied on this waiver in entering into this Agreement and
that each will continue to rely on this waiver in their related future
dealings. Guarantors and Collateral Trustee further warrant and represent that
each has reviewed this waiver with its legal counsel, and that each knowingly
and voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS PARAGRAPH 17 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY AGREEMENT. In the
event of litigation, this Guaranty Agreement may be filed as a written consent
to a trial by the court.
18. Headings. The paragraph headings in this Guaranty
Agreement are for convenience of identification only and do not limit any of
the provisions hereof.
19. Consideration. Each Guarantor acknowledges and expressly
agrees with the Collateral Trustee and each Approved Trade Creditors 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 Trade Creditor Lien Documents to any or all of Company and is not required
or given as a condition of any extensions of credit to such Guarantor.
[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/ C. Xxxxxx Xxxxx
---------------------------------
Name: C. Xxxxxx Xxxxx
Title:
FI STORES LIMITED PARTNERSHIP
By: Xxxxxxxx'x Inc., its general partner
By: /s/ C. Xxxxxx Xxxxx
---------------------------------
Name: C. Xxxxxx Xxxxx
Title:
XXXXXXXX'X HOLDING CORP.
By: /s/ C. Xxxxxx Xxxxx
---------------------------------
Name: C. Xxxxxx Xxxxx
Title:
XXXXXXXX'X MANAGEMENT CORP.
By: /s/ C. Xxxxxx Xxxxx
---------------------------------
Name: C. Xxxxxx Xxxxx
Title:
FCJV HOLDING CORP.
By: /s/ C. Xxxxxx Xxxxx
---------------------------------
Name: C. Xxxxxx Xxxxx
Title:
FCJV, L.P.
By: FCJV Holding Corp., its general
partner
By: /s/ C. Xxxxxx Xxxxx
---------------------------------
Name: C. Xxxxxx Xxxxx
Title:
XXXXXXXX'X INVESTMENTS LLC
By: /s/ C. Xxxxxx Xxxxx
---------------------------------
Name: C. Xxxxxx Xxxxx
Title:
XXXXXXXX'X BENEFICIARY INC.
By: /s/ C. Xxxxxx Xxxxx
---------------------------------
Name: C. Xxxxxx Xxxxx
Title:
