Exhibit 10(i)(2)
BORROWER: Xxxxxxxx, Inc.
GUARANTORS: Xxxxxxxx Store I,
Inc., Xxxxxxxx Store II, Inc., and
Xxxxxxxx Store III, Inc.
GUARANTY
To: Bank of America, N.A., as Administrative Agent under the Loan Documents (as
defined herein), and to each of the Lenders party to the Credit Agreement
referred to below
1. The Guaranty. This Guaranty is given by the undersigned,
jointly and severally (each a "Guarantor" and collectively, the "Guarantors"),
in favor of Bank of America, N.A., as Administrative Agent ("Agent") and to each
of the Lenders as defined in the Credit Agreement dated April 24, 2003, by and
among Xxxxxxxx, Inc., a Delaware corporation ("Borrower"), each lender from time
to time party thereto, and Bank of America, N.A. as Administrative Agent, and
L/C Issuer (all as defined therein) (the "Credit Agreement") (the Agent and each
of the Lenders hereinafter collectively referred to as "Lenders"). For valuable
consideration, each Guarantor hereby unconditionally guarantees and promises to
pay promptly to Lenders, or order, in lawful money of the United States, any and
all Indebtedness of Borrower to Lenders when due, whether at stated maturity,
upon acceleration or otherwise, and at all times thereafter, subject to such
limitations on each Guarantor's liability as are set forth below. This Guaranty
is cumulative and does not supersede any other outstanding guaranties, and the
liability of each Guarantor under this Guaranty is exclusive of each Guarantor's
liability under any other guaranties signed by each Guarantor. The obligations
of all Guarantors under this Guaranty shall be joint and several.
The liability of each Guarantor under this Guaranty shall be limited to the
Indebtedness under the Loan Documents (as defined herein) and shall not exceed
at any one time the sum of (a) the principal amount of the Indebtedness under
such Loan Documents plus (b) all interest, fees, indemnities (including, without
limitation, hazardous waste indemnities), and other costs and expenses relating
to or arising out of the Indebtedness under such Loan Documents and under any
Swap Contract (as defined in the Credit Agreement) now or hereafter entered into
between Borrower and any Lender or any Affiliate of any Lender.
Notwithstanding the limitations on each Guarantor's liability set forth above,
each Guarantor's liability hereunder shall not exceed at any one time the
Maximum Guaranteed Amount. "Maximum Guaranteed Amount" shall mean the largest
amount during the period commencing with such Guarantor's execution of this
Guaranty and thereafter that would not render such Guarantor's obligations
hereunder subject to avoidance under Section 548 of the Bankruptcy Code (Title
11, United States Code) or any comparable provisions of any applicable state
law.
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2. Definitions.
(a) "Borrower" shall mean the entity named in
Paragraph 1 of this Guaranty.
(b) "Guarantor" shall mean the entities signing this
Guaranty and, if more than one, then any one or more of them.
(c) "Indebtedness" shall mean any and all debts,
liabilities, and obligations of Borrower to Lenders, now or hereafter
existing, whether voluntary or involuntary arising pursuant to the Loan
Documents, whether direct or indirect or acquired by Lenders by
assignment, succession, or otherwise, whether due or not due, absolute
or contingent, liquidated or unliquidated, determined or undetermined,
held or to be held by Lenders for its own account or as agent for
another or others, whether Borrower may be liable individually or
jointly with others, whether recovery upon such debts, liabilities, and
obligations may be or hereafter become barred by any statute of
limitations, and whether such debts, liabilities, and obligations may
be or hereafter become otherwise unenforceable. Indebtedness includes,
without limitation, any and all obligations of Borrower to Lenders for
reasonable attorneys' fees and all other costs and expenses incurred by
Lenders in the collection or enforcement of any debts, liabilities, and
obligations of Borrower to Lenders arising pursuant to the Loan
Documents. Indebtedness also includes, without limitation, all
obligations of Borrowers to any Lender or any Affiliate of any Lender
now or hereafter owing under a Swap Contract (as defined in the Credit
Agreement).
(d) "Loan Documents" shall mean the Credit Agreement
between Borrower and Lenders, promissory notes from Borrower in favor
of Lenders, and all other agreements, documents, and instruments
evidencing any of the Indebtedness, and deeds of trust, mortgages,
security agreements, and other agreements, documents, and instruments
executed by Borrower in connection with such loan agreements,
promissory notes, and other agreements, documents, and instruments
evidencing any of the Indebtedness, all as now in effect and as
hereafter amended, restated, renewed, or superseded.
3. Obligations Independent. The obligations hereunder are
independent of the obligations of Borrower or any other guarantor, and a
separate action or actions may be brought and prosecuted against each Guarantor,
or any of them, whether action is brought against Borrower or any other
guarantor or whether Borrower or any other guarantor be joined in any such
action or actions. Anyone executing this Guaranty shall be bound by its terms
without regard to execution by anyone else.
4. Rights of Lenders. Each Guarantor authorizes Lenders,
without notice or demand and without affecting its liability hereunder, from
time to time to:
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(a) renew, compromise, extend, accelerate, or
otherwise change the time for payment, or otherwise change the terms,
of the Indebtedness or any part thereof, including increase or decrease
of the rate of interest thereon, or otherwise change the terms of any
Loan Documents;
(b) receive and hold security for the payment of this
Guaranty or any Indebtedness and exchange, enforce, waive, release,
fail to perfect, sell, or otherwise dispose of any such security;
(c) apply such security and direct the order or
manner of sale thereof as Lenders in its discretion may determine;
(d) release or substitute any Guarantor or any one or
more of any endorsers or other guarantors of any of the Indebtedness;
and
(e) permit the Indebtedness to exceed any Guarantor's
liability under this Guaranty, and each Guarantor agrees that any
amounts received by Lenders from any source, other than from any
Guarantor, shall be deemed to be applied first to any unguaranteed
portion of the Indebtedness.
5. Guaranty to be Absolute. Each Guarantor agrees that until
the Indebtedness has been paid in full and any commitments of Lenders or
facilities provided by Lenders with respect to the Indebtedness have been
terminated, each Guarantor shall not be released by or because of the taking of,
or failure to take, any action that might in any manner or to any extent vary
the risks of each Guarantor under this Guaranty or that, but for this paragraph,
might discharge or otherwise reduce, limit, or modify such Guarantor's
obligations under this Guaranty. Each Guarantor waives and surrenders any
defense to any liability under this Guaranty based upon any such action,
including but not limited to any action of Lenders described in the immediately
preceding paragraph of this Guaranty. It is the express intent of each Guarantor
that each Guarantor's obligations under this Guaranty are and shall be absolute
and unconditional.
6. Guarantor's Waivers of Certain Rights and Certain Defenses.
Each Guarantor waives:
(a) any right to require Lenders to proceed against
Borrower, proceed against or exhaust any security for the Indebtedness,
or pursue any other remedy in Lenders' power whatsoever;
(b) any defense arising by reason of any disability
or other defense of Borrower, or the cessation from any cause
whatsoever of the liability of Borrower;
(c) any defense based on any claim that any of the
Guarantor's obligations exceed or are more burdensome than those of
Borrower; and
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(d) the benefit of any statute of limitations
affecting any Guarantor's liability hereunder.
No provision or waiver in this Guaranty shall be construed as limiting the
generality of any other waiver contained in this Guaranty.
7. Waiver of Subrogation. Until the Indebtedness has been paid
in full and any commitments of Lenders or facilities provided by Lenders with
respect to the Indebtedness have been terminated, even though the Indebtedness
may be in excess of any of the Guarantor's liability hereunder, each Guarantor
waives any right of subrogation, reimbursement, indemnification, and
contribution (contractual, statutory, or otherwise) including, without
limitation, any claim or right of subrogation under the Bankruptcy Code (Title
11, United States Code) or any successor statute, arising from the existence or
performance of this Guaranty, and until the Indebtedness has been paid in full
and any commitments of Lenders for facilities provided by Lenders with respect
to the Indebtedness have been terminated, each Guarantor shall not exercise any
right to enforce any remedy which Lenders now have or may hereafter have against
Borrower, and waives any benefit of, and any right to participate in, any
security now or hereafter held by Lenders.
8. Waiver of Notices. Each Guarantor waives all presentments,
demands for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor, notices of intent to accelerate, notices of
acceleration, notices of any suit or any other action against Borrower or any
other person, any other notices to any party liable on any Loan Document
(including any Guarantor), notices of acceptance of this Guaranty, and notices
of the existence, creation, or incurring of new or additional Indebtedness to
which this Guaranty applies or any other Indebtedness of Borrower to Lenders.
9. Waivers of Other Rights and Defenses.
(a) Each Guarantor waives any rights and defenses
that are or may become available to such Guarantor by reason of
Sections 2787 to 2855, inclusive, of the California Civil Code.
(b) Each Guarantor waives all rights and defenses
that such Guarantor may have because any of the Indebtedness is secured
by real property. This means, among other things: (i) Lenders may
collect from any Guarantor without first foreclosing on any real or
personal property collateral pledged by Borrower; and (ii) if Lenders
foreclose on any real property collateral pledged by Borrower: (1) the
amount of the Indebtedness may be reduced only by the price for which
that collateral is sold at the foreclosure sale, even if the collateral
is worth more than the sale price, and (2) Lenders may collect from any
Guarantor even if Lenders, by foreclosing on the real property
collateral, has destroyed any right any Guarantor may have to collect
from Borrower. This is an unconditional and irrevocable waiver of any
rights and defenses any Guarantor may have because any of the
Indebtedness is secured by real property. These rights and
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defenses include, but are not limited to, any rights or defenses based
upon Section 580a, 580b, 580d, or 726 of the California Code of Civil
Procedure.
(c) Each Guarantor waives any right or defense it may
have at law or equity, including California Code of Civil Procedure
Section 580a, to a fair market value hearing or action to determine a
deficiency judgment after a foreclosure.
10. Security. To secure all of each Guarantor's obligations
hereunder, each Guarantor assigns and grants to Lenders a security interest in
all moneys, securities, and other property of each Guarantor now or hereafter in
the possession of Lenders, all deposit accounts of each Guarantor maintained
with Lenders, and all proceeds thereof. Upon default or breach of any of the
Guarantor's obligations to Lenders, Lenders may apply any deposit account to
reduce the Indebtedness, and may foreclose any collateral as provided in the
Uniform Commercial Code and in any security agreements between Lenders and any
Guarantor.
11. Subordination. Any obligations of Borrower to each
Guarantor, now or hereafter existing, including but not limited to any
obligations to each Guarantor as subrogee of Lenders or resulting from each
Guarantor's performance under this Guaranty, are hereby subordinated to the
Indebtedness. In addition to each Guarantor's deferral of any right of
subrogation as set forth in this Guaranty with respect to any obligations of
Borrower to each Guarantor as subrogee of Lenders, each Guarantor agrees that,
if Lenders so request, each Guarantor shall not demand, take, or receive from
Borrower, by setoff or in any other manner, payment of any other obligations of
Borrower to each Guarantor until the Indebtedness has been paid in full and any
commitments of Lenders or facilities provided by Lenders with respect to the
Indebtedness have been terminated. If any payments are received by any Guarantor
in violation of such waiver or agreement, such payments shall be received by
such Guarantor as trustee for Lenders and shall be paid over to Lenders on
account of the Indebtedness, but without reducing or affecting in any manner the
liability of such Guarantor under the other provisions of this Guaranty. Any
security interest, lien, or other encumbrance that each Guarantor may now or
hereafter have on any property of Borrower is hereby subordinated to any
security interest, lien, or other encumbrance that Lenders may have on any such
property.
12. Revocation of Guaranty.
(a) This Guaranty may be revoked at any time by any
Guarantor in respect to future transactions, unless there is a
continuing consideration as to such transactions which such Guarantor
does not renounce. Such revocation shall be effective upon actual
receipt by Lenders, at the address shown below or at such other address
as may have been provided to each Guarantor by Lenders, of written
notice of revocation. Revocation shall not affect any of the
Guarantor's obligations or Lenders' rights with respect to transactions
committed or entered into prior to Lenders' receipt of such notice,
regardless of whether or not the Indebtedness related to such
transactions, before or after revocation, has been incurred, renewed,
compromised, extended, accelerated, or otherwise changed as to any of
its terms, including time for payment or increase or decrease of the
rate of interest thereon, and regardless of any other act or omission
of
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Lenders authorized hereunder. Revocation by any Guarantor shall not
affect any obligations of any other guarantor.
(b) Each Guarantor acknowledges and agrees that this
Guaranty may be revoked only in accordance with the foregoing
provisions of this paragraph and shall not be revoked simply as a
result of any change in name, location, or composition or structure of
Borrower, the dissolution of Borrower, or the termination, increase,
decrease, or other change of any personnel or owners of Borrower.
13. Reinstatement of Guaranty. If this Guaranty is revoked,
returned, or canceled, and subsequently any payment or transfer of any interest
in property by Borrower to Lenders is rescinded or must be returned by Lenders
to Borrower, this Guaranty shall be reinstated with respect to any such payment
or transfer, regardless of any such prior revocation, return, or cancellation.
14. Stay of Acceleration. In the event that acceleration of
the time for payment of any of the Indebtedness is stayed upon the insolvency,
bankruptcy, or reorganization of Borrower or otherwise, all such Indebtedness
guaranteed by each Guarantor shall nonetheless be payable by each Guarantor
immediately if requested by Lenders.
15. No Deductions. All payments by each Guarantor hereunder
shall be paid in full, without setoff or counterclaim or any deduction or
withholding whatsoever, including, without limitation, for any and all present
and future taxes. In the event that any Guarantor or any Lender is required by
law to make any such deduction or withholding, each Guarantor agrees to pay on
behalf of Lenders such amount directly to the appropriate person or entity, or
if any Guarantor cannot legally comply with the foregoing, such Guarantor shall
pay to Lenders such additional amounts as will result in the receipt by Lenders
of the full amount payable hereunder. Each Guarantor shall promptly provide
Lenders with evidence of payment of any such amount made on Lenders' behalf.
16. Information Relating to Borrower. Each Guarantor
acknowledges and agrees that it shall have the sole responsibility for, and has
adequate means of, obtaining from Borrower such information concerning
Borrower's financial condition or business operations as each Guarantor may
require, and that Lenders have no duty, and each Guarantor is not relying on
Lenders, at any time to disclose to any Guarantor any information relating to
the business operations or financial condition of Borrower.
17. Borrower's Authorization. It is not necessary for Lenders
to inquire into the powers of Borrower or of the officers, directors, or agents
acting or purporting to act on its behalf, and any Indebtedness made or created
in reliance upon the professed exercise of such powers shall be guaranteed
hereunder, subject to any limitations on each Guarantor's liability set forth
herein.
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18. Information Relating to Guarantor. Each Guarantor
authorizes Lenders to verify or check any information given by each Guarantor to
Lenders, check each Guarantor's credit references, and obtain credit reports.
19. Change of Status. Each Guarantor shall not enter into any
consolidation, merger, or other combination that is not otherwise permitted by
the Credit Agreement.
20. Notices. All notices required under this Guaranty shall be
personally delivered or sent by certified or registered mail, postage prepaid,
or by overnight courier, to the addresses on the signature page of this
Guaranty, or sent by facsimile to the fax numbers listed on the signature page,
or to such other addresses as Lenders and each Guarantor may specify from time
to time in writing. Notices sent by (a) certified or registered mail shall be
deemed delivered four business days after deposit in the mails, (b) overnight
courier shall be deemed delivered upon delivery, and (c) facsimile shall be
deemed delivered when sent and the sender has received electronic information of
error free receipt.
21. Successors and Assigns. This Guaranty (a) binds each
Guarantor and such Guarantor's executors, administrators, successors, and
assigns, provided that each such Guarantor may not assign its rights or
obligations under this Guaranty without the prior written consent of Lenders,
and (b) inures to the benefit of Lenders and Lenders' indorsees, successors, and
assigns. Lenders may, without notice to any Guarantor and without affecting any
Guarantor's obligations hereunder, sell, assign, grant participations in, or
otherwise transfer to any other person, firm, or corporation the Indebtedness
and this Guaranty, in whole or in part. Each Guarantor agrees that Lenders may
disclose to any assignee or purchaser, or any prospective assignee or purchaser,
of all or part of the Indebtedness any and all information in Lenders'
possession concerning each Guarantor, this Guaranty, and any security for this
Guaranty.
22. Amendments, Waivers, and Severability. No provision of
this Guaranty may be amended or waived except in writing. No failure by Lenders
to exercise, and no delay in exercising, any of its rights, remedies, or powers
shall operate as a waiver thereof, and no single or partial exercise of any such
right, remedy, or power shall preclude any other or further exercise thereof or
the exercise of any other right, remedy, or power. The unenforceability or
invalidity of any provision of this Guaranty shall not affect the enforceability
or validity of any other provision of this Guaranty.
23. Costs and Expenses. Each Guarantor agrees to pay all
reasonable attorneys' fees, including allocated costs of Lenders' in-house
counsel, and all other costs and expenses which may be incurred by Lenders (a)
in the enforcement of this Guaranty or (b) in the preservation, protection, or
enforcement of any rights of Lenders in any case commenced by or against any
Guarantor or Borrower under the Bankruptcy Code (Title 11, United States Code)
or any similar or successor statute.
24. Governing Law and Jurisdiction. This Guaranty shall be
governed by and construed under the laws of the State of California. Each
Guarantor irrevocably (a) submits to the non-exclusive jurisdiction of any
federal or state court sitting in the State of California in any
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action or proceeding arising out of or relating to this Guaranty and (b) waives
to the fullest extent permitted by law any defense asserting an inconvenient
forum in connection therewith. Service of process by Lenders in connection with
such action or proceeding shall be binding on each Guarantor if sent to such
Guarantor by registered or certified mail at its address specified below.
25. WAIVER TO RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS
GUARANTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS GUARANTY MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
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This Guaranty is executed as of the 24th day of April, 2003.
GUARANTORS:
XXXXXXXX STORE I, INC.
a Delaware corporation
By: /s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President, Chief Operating
Officer and Chief Financial Officer
XXXXXXXX STORE II, INC.
a Delaware corporation
By: /s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President, Chief Operating
Officer and Chief Financial Officer
XXXXXXXX STORE III, INC.
a Delaware corporation
By: /s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President, Chief Operating
Officer and Chief Financial Officer
Address for notices to Lenders: Address for notices for Guarantors:
Bank of America, N. A., 0000 Xxxxx Xxxxxx Xxxx
as Administrative Agent Xxxxxxxx, XX 00000
Mail Code: WA1-501-37-20
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
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