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EXHIBIT 10.10S
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),
as agent for the financial institutions from time to time party to that certain
Credit Agreement dated as of June 1, 1997 (the "Banks") (in such capacity, the
"Agent") and such Banks.
Recitals
X. Xxxxxxxx-Sonoma, Inc. (the "Company"), the Agent and the Banks
entered into a Credit Agreement dated as of June 1, 1997. The Credit Agreement
as now in effect or hereafter extended, renewed, modified, supplemented, amended
or restated is hereinafter called the "Credit Agreement".
B. The Banks are willing to make certain Loans to 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 Loans and other benefits to be provided to the Company under
the Credit Agreement.
D. In order to induce the Banks to make such Loans 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.
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. This Guaranty
constitutes a guaranty of payment and performance when due and not of
collection, and the Guarantor specifically agrees that it shall not be necessary
or required that the Agent or any 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 Agent or any Bank may permit the indebtedness of the Company to the Agent or
any 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 Agent or any 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
Agent and each 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 other Loan Document;
(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 Agent, or any Bank, as the case may be, in its or their
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 Agent or any Bank, shall not affect the liability of the Guarantor
hereunder.
2.4 Waiver of Certain Rights. The Guarantor waives any right to
require the Agent or any 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 Agent or any Bank;
or
(c) to pursue any other remedy in the Agent's or any such 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 fights and
defenses arising out of an election of remedies by the Agent or any 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 Agent or any 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
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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 Agent or any Bank.
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 neither the Agent nor
any Bank has 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
Banks provided by law, if Guarantor has failed to make any payment due hereunder
upon demand, each 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 such 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 or any other Loan Document, irrespective
of whether or not the Agent or such Bank shall have made demand under this
Guaranty or any other Loan Document and although such obligations may be
contingent or unmatured. Each Bank agrees promptly to notify the Guarantor and
the Agent after any such set-off and application made by such Bank; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Bank under this Section 2.8 are
in addition to the other rights and remedies (including, without limitation,
other rights of set-off) which such 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 Agent or any 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
Agent or any Bank.
2.10 Reinstatement of Guaranty. If any payment or transfer of any
interest in property by the Company to the Agent or any 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 Agent or
any 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 Agent or any 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 Credit
Agreement, any and all payments by the Guarantor to each Bank or the Agent under
this
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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 any Bank or the Agent, then:
(i) the sum payable shall be increased as necessary so
that, after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section), such Bank or the Agent, as the case may be, 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 each Bank or the
Agent for the account of such Bank, at the time interest is paid,
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.
(c) The Guarantor agrees to indemnify and hold harmless each
Bank and the Agent 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 or the Agent 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 each Bank
or the Agent the original or a certified copy of a receipt evidencing payment
thereof, or other evidence of payment satisfactory to such Bank or the Agent.
(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 each Bank and the Agent, respectively, taxes imposed
on or measured by its net income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Bank or the Agent, as the case
may be, is organized or maintains a lending office; (4) "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
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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 Agent and each 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 and any other Loan Document to which it is a party; (c) is
duly qualified as a foreign limited liability 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 and any other
Loan Document to which it is a party.
3.2 Authorization; No Contravention. The execution, delivery and
performance by the Guarantor of this Guaranty and any other Loan Document to
which it is party, 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 or any other Loan Document to which it is a party.
3.4 Binding Effect. This Guaranty and each other Loan Document to
which the Guarantor is a party constitute the legal, valid and binding
obligations of the Guarantor, enforceable against the Guarantor in accordance
with their respective 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
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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 Agent for the account of the Banks at the Agent's Payment
Office. The Agent will promptly distribute to each Bank its Pro Rata Share (or
other applicable share as expressly provided herein) of such payment in like
funds as received. Payments received from the Guarantor shall, unless otherwise
expressly provided herein, be applied to costs, fees, or other expenses due
under the Loan Documents, any interest (including interest due under subsection
2.10(c) of the Credit Agreement, any principal due under the Loan Documents and
any other Obligations, in such order as the Agent, with the consent of or at the
request of the Majority Banks, shall determine.
4.2 Assignments, Participations, Confidentiality. Any 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 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, the Agent and each Bank agree that the provisions of Section
10.09 of the Credit Agreement shall apply to all information identified as
"confidential" or "secret" by the Guarantor and provided to the Agent or such
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 a Loan Document 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 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 Agent or
any 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 Agent, with the written consent of
the Majority Banks or all of the Banks, in accordance with the terms of Section
10.01 of the Credit Agreement
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.
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4.6 Costs and Expenses. The Guarantor agrees to pay or reimburse the
Agent and each 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 AGENT, THE GUARANTOR AND THE BANKS SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY AND
ANY OTHER LOAN DOCUMENTS 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, THE AGENT AND
THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE GUARANTOR, THE AGENT AND
THE BANKS 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, THE AGENT AND THE BANKS EACH WAIVE 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, THE BANKS AND THE AGENT EACH
WAIVE 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, THE OTHER LOAN
DOCUMENTS, 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, THE BANKS AND THE AGENT 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 THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR
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THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
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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