Exhibit 10(z)(2)
BORROWER: Xxxxxxxx, Inc.
GUARANTORS: Xxxxxxxx Store I,
Inc., Xxxxxxxx Store II, Inc.,
Xxxxxxxx Acquisition Corp.,
GEKKO Brands, L.L.C., Kudzu,
L.L.C. and The Game, LLC
GUARANTY
To: Union Bank of California, 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, dated as of July 6, 2004, is
given by the undersigned, jointly and severally (each a "Guarantor" and
collectively, the "Guarantors"), in favor of Union Bank of California, N.A., as
Administrative Agent ("Agent") and to each of the Lenders as defined in the
Revolving/Term Loan Credit Agreement dated July 6, 2004, by and among Xxxxxxxx,
Inc., a Delaware corporation ("Borrower"), each lender from time to time party
thereto, and Union Bank of California, 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:
(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;
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(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
(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
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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 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
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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 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.
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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.
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
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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 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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This Guaranty is executed as of the date first written above.
GUARANTORS:
XXXXXXXX STORE I, INC.
a Delaware corporation
By:__________________________________________
Xxxxxxx X. Xxxxx
Its: Executive Vice President, Chief Operating
Officer, Chief Financial Officer, Chief
Accounting Officer and Treasurer
XXXXXXXX STORE II, INC.
a Delaware corporation
By:__________________________________________
Xxxxxxx X. Xxxxx
Its: Executive Vice President, Chief Operating
Officer, Chief Financial Officer, Chief
Accounting Officer and Treasurer
XXXXXXXX ACQUISITION CORP.
a Delaware corporation
By:__________________________________________
Xxxxxxx X. Xxxxx
Its: Executive Vice President, Chief Operating
Officer, Chief Financial Officer, Chief
Accounting Officer and Treasurer
[SIGNATURE PAGE TO GUARANTY]
[SIGNATURES CONTINUED NEXT PAGE]
GEKKO BRANDS, L.L.C.
an Alabama limited liability company
By:__________________________________________
Xxxxxxx X. Xxxxx
Its: Manager
KUDZU, L.L.C.
an Alabama limited liability company
By:__________________________________________
Xxxxxxx X. Xxxxx
Its: Manager
THE GAME, LLC
an Alabama limited liability company
By:__________________________________________
Xxxxxxx X. Xxxxx
Its: Manager
[SIGNATURE PAGE TO GUARANTY]
Address for notices to Lenders: Address for notices for Guarantors:
Union Bank of California, N.A. 0000 Xxxxx Xxxxxx West
as Administrative Agent Xxxxxxxx, XX 00000
Mail Code: S-420
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000-0000
