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EXHIBIT 10.10V
ONE BANK GUARANTY
This Guaranty is entered into as of February 7, 2000, by Xxxxxxxx-Sonoma
Direct, Inc. (the "Guarantor"), in favor of Bank of America, N.A. (formerly
known as Bank of America National Trust and Savings Association - the "Bank").
Recitals
X. Xxxxxxxx-Sonoma, Inc. (the "Company") and the Bank entered into
a Letter of Credit Agreement dated as of June 1, 1997. The Letter of Credit
Agreement as now in effect or hereafter extended, renewed, modified,
supplemented, amended or restated is hereinafter called the "Credit Agreement".
B. The Bank is willing to issue letters of credit for the account
of the Company as provided in the Credit Agreement on the condition (among
others) that the Guarantor enter into this Guaranty.
C. The Guarantor as a Subsidiary of the Company will derive
substantial and direct benefits (which benefits are hereby acknowledged by the
Guarantor) from the letters of credit to be issued for the account of the
Company under the Credit Agreement.
D. In order to induce the Bank to make such letters of credit
available to the Company as provided in the Credit Agreement, and for other
valuable consideration, the Guarantor issues this Guaranty.
1. Definitions. Unless otherwise defined herein, capitalized terms used in
this Guaranty have the meanings given to them from time to time in the Credit
Agreement, or, as applicable, in the Syndicated Credit Agreement (as defined in
the Credit Agreement).
2. Guaranty.
2.1 Guaranty. The Guarantor hereby irrevocably, absolutely and
unconditionally guarantees the full and punctual payment or performance when
due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all of the obligations of the Company to
the Bank under the Credit Agreement and under the letters of credit issued
pursuant to the Credit Agreement (the "Obligations'). This Guaranty constitutes
a guaranty of payment and performance when due and not of collections and the
Guarantor specifically agrees that it shall not be necessary or required that
the Bank exercise any right, assert any claim or demand or enforce any remedy
whatsoever against the Company (or any other Person) before or as a condition to
the obligations of the Guarantor hereunder. The Bank may permit the indebtedness
of the Company to the Bank to include indebtedness other than the Obligations,
and may apply any amounts received from any source, other than from the
Guarantor, to that portion of Company's indebtedness to the Bank which is not a
part of the Obligations.
2.2 Obligations Independent. The obligations hereunder are
independent of the obligations of the Company, and a separate action or actions
may be brought and prosecuted against the Guarantor whether action is brought
against the Company or whether the Company be joined in any such action or
actions.
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2.3 Authorization of Renewals, Etc. The Guarantor authorizes the
Bank, without notice or demand and without affecting its liability hereunder,
from time to time:
(a) to renew, compromise, extend, accelerate or otherwise
change the time for payment or otherwise change the terms, of the Obligations,
including increase or decrease of the rate of interest thereon, or otherwise
change the terms of the Credit Agreement or any letter of credit;
(b) to receive and hold security for the payment of this
Guaranty or the Obligations and exchange, enforce, waive, release, fail to
perfect, sell, or otherwise dispose of any such security;
(c) to apply such security and direct the order or manner
of sale thereof as the Bank in its discretion may determine; and
(d) to release or substitute any one or more of any
endorsers or guarantors of the Obligations.
The Guarantor further agrees the performance or occurrence of any of the acts or
events described in clauses (a), (b), (c), and (d) above with respect to
indebtedness or other obligations of the Company, other than the Obligations, to
the Bank, shall not affect the liability of the Guarantor hereunder.
2.4 Waiver of Certain Rights. The Guarantor waives any right to
require the Bank:
(a) to proceed against the Company or any other Person;
(b) to proceed against or exhaust any security for the
Obligations or any other indebtedness of the Company to the Bank; or
(c) to pursue any other remedy in the Bank's power
whatsoever.
2.5 Waiver of Certain Defenses. The Guarantor waives any defense
arising by reason of any claim that the Guarantor's obligations exceed or are
more burdensome than those of the Company. The Guarantor waives all rights and
defenses arising out of an election of remedies by the Bank, even though that
election of remedies, such as a nonjudicial foreclosure with respect to security
for the Obligations, has destroyed the Guarantor's rights of subrogation and
reimbursement against the Company by operation of Section 580d of the California
Code of Civil Procedure (if applicable) or otherwise. The Guarantor waives any
benefit of, and any right to participate in, any security or other guaranty now
or hereafter held by the Bank securing the Obligations.
2.6 Waiver of Presentments, Etc. The Guarantor waives all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor and notices of acceptance of this
Guaranty and of the existence, creation, or incurring of new or additional
Obligations or any other indebtedness of Company to the Bank.
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2.7 Information Relating to Company. The Guarantor acknowledges and
agrees that it shall have the sole responsibility for obtaining from the Company
such information concerning the Company's financial condition or business
operations as the Guarantor may require, and that the Bank does not have any
duty at any time to disclose to the Guarantor any information relating to the
business operations or financial condition of the Company.
2.8 Right of Setoff. In addition to any rights and remedies of the
Bank provided by law, if Guarantor has failed to make any payment due hereunder
upon demand, the Bank is authorized at any time and from time to time, without
prior notice to the Guarantor, any such notice being waived by the Guarantor to
the fullest extent permitted by law, to set-off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by the Bank to or for the credit or the
account of the Guarantor against any and all obligations of the Guarantor now or
hereafter existing under this Guaranty, irrespective of whether or not the Bank
shall have made demand under this Guaranty and although such obligations may be
contingent or unmatured. The Bank agrees promptly to notify the Guarantor after
any such set-off and application made by the Bank: provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Bank under this Section 2-8 are in addition to
the other rights and remedies (including, without limitation, other rights of
set-off) which the Bank may have.
2.9 Subordination. Any obligations of the Company to the Guarantor,
now or hereafter existing, including, but not limited to, obligations to the
Guarantor as subrogee of the Bank or resulting from the Guarantor's performance
under this Guaranty, are hereby fully subordinated in priority of payment to the
Obligations and all other indebtedness of the Company to the Bank.
2.10 Reinstatement of Guaranty, If any payment or transfer of any
interest in property by the Company to the Bank in fulfillment of any Obligation
is rescinded or must at any time (including after the return or cancellation of
this Guaranty) be returned, in whole or in part, by the Bank to the Company or
any other Person, upon the insolvency, bankruptcy or reorganization of the
Company or otherwise, this Guaranty shall be reinstated with respect to any such
payment or transfer, regardless of any such prior return or cancellation.
2.11 Powers. It is not necessary for the Bank to inquire into the
powers of the Company or of the officers, directors, partners or agents acting
or purporting to act on its behalf, and any Obligations made or created in
reliance upon the professed exercise of such powers. shall be guaranteed
hereunder.
2.12 Taxes. (a) Subject to compliance with Section 9.10 of the
Syndicated Credit Agreement, any and all payments by the Guarantor to the Bank
under this Guaranty shall be made free and clear of, and without deduction or
withholding for, any Taxes, Other Taxes or Further Taxes. In addition, the
Guarantor shall pay all Other Taxes.
(b) If the Guarantor shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any sum
payable hereunder to the Bank, then:
(1) the sum payable shall be increased as necessary
so that, after making all required deductions and withholdings
(including deductions and withholdings
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applicable to additional sums payable under this Section), the Bank
receives and retains an amount equal to the sum it would have received
and retained had no such deductions or withholdings been made;
(ii) the Guarantor shall make such deductions and
withholdings;
(iii) the Guarantor shall pay the full amount
deducted or withheld to the relevant taxing authority or other authority
in accordance with applicable law; and
(iv) the Guarantor shall also pay to the Bank, at
the time interest is paid, Further Taxes in the amount that the Bank
specifies as necessary to preserve the after-tax yield the Bank would
have received if such Taxes, Other Taxes or Further Taxes had not been
imposed.
(c) The Guarantor agrees to indemnify and hold harmless the
Bank for the full amount of (i) Taxes, (ii) Other Taxes, and (iii) Further Taxes
in the amount that the respective Bank specifies as necessary to preserve the
after-tax yield the Bank would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed, and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes, Other Taxes or Further Taxes were correctly
or legally asserted. Payment under this indemnification shall be made within 30
days after the date the Bank makes written demand therefor.
(d) Within 30 days after the date of any payment by the
Guarantor of Taxes, Other Taxes or Further Taxes, the Guarantor shall furnish to
the Bank the original or a certified copy of a receipt evidencing payment
thereof, or other evidence of payment satisfactory to the Bank.
(e) For purposes of this Section, (i) "Taxes" means any and
all present or future taxes, levies, assessments, imposts, duties, deductions,
fees, withholdings or similar charges. and all liabilities with respect thereto,
excluding, in the case of the Bank, taxes imposed on or measured by its net
income by the jurisdiction (or any political subdivision thereof) under the laws
of which the Bank is organized or maintains a lending office; (ii) "Other Taxes"
means any present or future stamp, court or documentary taxes or any other
excise or property taxes, charges or similar levies which arise from any payment
made hereunder or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, this Guaranty; and (iii)
"Further Taxes" means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges (including,
without limitation, net income taxes and franchise taxes), and all liabilities
with respect thereto, imposed by any jurisdiction on account of amounts payable
or paid pursuant to this Section.
3. Representations and Warranties, The Guarantor represents and warrants
to the Bank as follows:
3.1 Existence and Power. The Guarantor (a) is a limited liability
company duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization; (b) has the power and authority and all
governmental licenses, authorizations, consents and approvals to own its assets,
carry on its business and to execute, deliver, and perform its obligations
under, this Guaranty; (c) is duly qualified as a foreign limited liability
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company, and licensed and in good standing, under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification or license; and (d) is in compliance with
all Requirements of Law; except, in each case, to the extent that the failure to
do so could not reasonably be expected to have a Material Adverse Effect.
"Material Adverse Effect" means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, condition (financial
or otherwise) or prospects of the Guarantor, its parent and affiliates, taken as
a whole; (b) a material impairment of the ability of the Guarantor to perform
its obligations under this Guaranty; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against the Guarantor of
this Guaranty.
3.2 Authorization; No Contravention. The execution, delivery and
performance by the Guarantor of this Guaranty have been duly authorized, and do
not and will not (a) contravene the terms of any of the Guarantor's Organization
Documents; (b) Violate or result in any breach or contravention of, or the
creation of any lien under, any document evidencing any Contractual Obligation
to which the Guarantor is a party or any order, injunction, writ or decree of
any Governmental Authority to which the Guarantor or its property is subject; or
(c) violate any Requirement of Law.
3.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Guarantor of
this Guaranty.
3.4 Binding Effect. This Guaranty constitutes the legal, valid and
binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
3.5 Regulated Entities. None of the Guarantor, any Person
controlling the Guarantor or any Subsidiary of the Guarantor is (a) an
"Investment Company" within the meaning of the Investment Company Act of 1940;
or (b) subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act, any state public
utilities code, or any other Federal or state statute or regulation limiting its
ability to incur or guarantee Indebtedness.
4. Miscellaneous
4.1 Application of Payments on Guaranty. All payments required to
be made by the Guarantor hereunder shall, unless otherwise expressly provided
herein, be made to the Bank at the Bank's office. Payments received from the
Guarantor shall, unless otherwise expressly provided herein, be applied to
interest, principal, costs, fees, or other expenses due under the Credit
Agreement in such order as the Bank shall determine.
4.2 Assignments, Participations, Confidentiality. The Bank may from
time to time, without notice to the Guarantor and without affecting the
Guarantor's obligations hereunder, transfer its interest in the Obligations to
participants and assignees as provided in the Credit Agreement. The Guarantor
agrees that each such transfer will give rise to a direct
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obligation of the Guarantor to each such participant and assignee and that each
such participant and assignee shall have the same rights and benefits under this
Guaranty as it would have if it were a Bank party to the Credit Agreement and
this Guaranty. The Guarantor and the Bank agree that the provisions of Section
10.09 of the Syndicated Credit Agreement shall apply to all information
identified as "confidential" or "secret" by the Guarantor and provided to the
Bank by the Guarantor or any Subsidiary of the Guarantor under this Guaranty or
any other Loan Document to which the Guarantor is a party.
4.3 Loan Document. This Guaranty is executed and delivered pursuant
to the Credit Agreement and shall (unless otherwise expressly indicated herein)
be construed, administered and applied in accordance with the terms and
provisions thereof. Without limiting the generality of the foregoing, the
provisions of Sections 1.02 and 1.03 of the Syndicated Credit Agreement shall
apply to the interpretation and administration of this Guaranty as if such
provisions were incorporated herein, with all references to the "Agreement" in
such Sections being deemed to be references to this Guaranty.
4.4 Waivers; Writing Required. No delay or omission by the Bank to
exercise any right under this Guaranty shall impair any such right, nor shall it
be construed to be a waiver thereof. No waiver of any single breach or default
under this Guaranty shall be deemed a waiver of any other breach or default. Any
amendment or waiver of any provision of this Guaranty must be in writing and
signed by the Guarantor and the Bank.
4.5 Remedies. All rights and remedies provided in this Guaranty and
any instrument or agreement referred to herein are cumulative and are not
exclusive of any rights or remedies otherwise provided by law. Any single or
partial exercise of any right or remedy shall not preclude the further exercise
thereof or the exercise of any other right or remedy.
4.6 Costs and Expenses. The Guarantor agrees to pay or reimburse
the Bank within five Business Days after demand for all costs and expenses
(including Attorney Costs) incurred by them in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Guaranty (including in connection with any "workout" or restructuring regarding
amounts due under this Guaranty, and including in any Insolvency Proceeding or
appellate proceeding).
4.7 Severability. The illegality or unenforceability of any
provision of this Guaranty or any instrument or agreement referred to herein
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Guaranty or any instrument or agreement referred to
herein.
4.8 Governing Law and Jurisdiction. (a) THIS GUARANTY SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
CALIFORNIA; PROVIDED THAT THE GUARANTOR AND THE BANK SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY
MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS
GUARANTY, EACH OF THE GUARANTOR AND THE BANK CONSENTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, TO THE NON-
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EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE GUARANTOR AND THE BANK
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING. WITHOUT LIMITATION, ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS GUARANTY OR ANY DOCUMENT RELATED HERETO. THE
GUARANTOR AND THE BANK EACH WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
4.9 Waiver of Jury Trial. THE GUARANTOR AND THE BANK EACH WAIVES THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE GUARANTOR AND THE
BANK EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT
TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE
THAT THEIR RESPECTIVE RIGHT To A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY OR ANY
PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY.
4.10 Entire Agreement. This Guaranty (a) integrates all the terms
and conditions mentioned herein or incidental hereto, (b) supersedes all oral
negotiations and prior writings with respect to the subject matter hereof, and
(c) is intended by the parties as the final expression of the agreement with
respect to the terms and conditions set forth in this Guaranty and any such
instrument, agreement and document and as the complete and exclusive statement
of the terms agreed to by the parties.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty by its
duly authorized officers as of the day and year first above written.
XXXXXXXX-SONOMA DIRECT, INC.
By /s/ XXXX X. XXXX
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Xxxx X. Xxxx, Chief Financial Officer
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