EXHIBIT 99.7
GUARANTY
This GUARANTY is dated as of September 29, 2003 and entered into by THE
UNDERSIGNED (each a "GUARANTOR", and together with any future Subsidiaries
executing this Guaranty, being collectively referred to herein as the
"GUARANTORS") in favor of and for the benefit of Bank of America, N.A., as
Administrative Agent for and representative of (in such capacity herein called
the "GUARANTIED PARTY") the several financial institutions (the "LENDERS") from
time to time party to the Credit Agreement referred to below and for the benefit
of the other Beneficiaries (as hereinafter defined).
PRELIMINARY STATEMENTS
X. Xxxx Xxxxxxx & Co., a Delaware corporation (the "BORROWER"), has entered
into that certain Credit Agreement dated as of September 29, 2003 by and among
the Borrower, the Lenders from time to time party thereto, and Bank of America,
N.A., as Administrative Agent for the Lenders (said Credit Agreement, as it may
hereafter be amended, amended and restated, supplemented or otherwise modified
from time to time, being the "CREDIT Agreement"; the terms defined therein and
not otherwise defined herein being used herein as therein defined).
B. It is desired that all obligations of the Borrower under the Credit
Agreement and the other Loan Documents, be guarantied hereunder.
C. The Guarantied Party and the Lenders are sometimes referred to herein as
the "BENEFICIARIES."
D. A portion of the proceeds of the Borrowings may be advanced to the
Guarantors, and thus the Guarantied Obligations (as hereinafter defined) are
being incurred for and will inure to the benefit of the Guarantors (which
benefits are hereby acknowledged).
E. It is a condition precedent to the borrowing of Loans under the Credit
Agreement that the Borrower's obligations thereunder be guarantied by the
Guarantors.
F. The Guarantors are willing irrevocably and unconditionally to guaranty
such obligations of the Borrower.
NOW, THEREFORE, based upon the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce the Lenders and the Guarantied Party to enter into the Credit
Agreement, the Guarantors hereby agree as follows:
1. GUARANTY. (a) In order to induce the Lenders to extend credit to the
Borrower pursuant to the Credit Agreement, the Guarantors jointly and severally
irrevocably and unconditionally guaranty, as primary obligors and not merely as
sureties, the due and punctual payment in full of all Guarantied Obligations (as
hereinafter defined) when the same shall become due, whether at stated maturity,
by acceleration, demand or otherwise (including amounts that would become due
but for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. ss. 362(a)). The term "GUARANTIED OBLIGATIONS" is
used herein in its most comprehensive sense and includes any and all Obligations
of the Borrower, now or hereafter made, incurred or created, whether absolute or
contingent, liquidated or unliquidated, whether due or not due, and however
arising under or in connection with the Credit Agreement, this Guaranty and the
other Loan Documents.
Each Guarantor acknowledges that a portion of the Borrowings may be
advanced to it, and that the Guarantied Obligations are being incurred for and
will inure to its benefit.
Any interest on any portion of the Guarantied Obligations that accrues
after the commencement of any proceeding, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of the Borrower or any of its Subsidiaries (or, if interest on any
portion of the Guarantied Obligations ceases to accrue by operation of law by
reason of the commencement of said proceeding, such interest as would have
accrued on such portion of the Guarantied Obligations if said proceeding had not
been commenced) shall be included in the Guarantied Obligations because it is
the intention of each Guarantor and the Guarantied Party that the Guarantied
Obligations should be determined without regard to any rule of law or order that
may relieve the Borrower or any of its Subsidiaries of any portion of such
Guarantied Obligations.
In the event that all or any portion of the Guarantied Obligations is paid,
the obligations of each Guarantor hereunder shall continue and remain in full
force and effect or be reinstated, as the case may be, in the event that all or
any part of such payment(s) is rescinded or recovered directly or indirectly
from the Guarantied Party or any other Beneficiary as a preference, fraudulent
transfer or otherwise, and any such payments that are so rescinded or recovered
shall constitute Guarantied Obligations.
Subject to the other provisions of this SECTION 1, upon the failure of the
Borrower or any of its Subsidiaries to pay any of the Guarantied Obligations
when and as the same shall become due, each Guarantor will upon demand pay, or
cause to be paid, in cash, to the Guarantied Party for the ratable benefit of
the Beneficiaries, an amount equal to the aggregate of the unpaid Guarantied
Obligations.
(b) Anything contained in this Guaranty to the contrary notwithstanding,
the obligations of each Guarantor under this Guaranty 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 Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law (collectively, the "FRAUDULENT
TRANSFER LAWS"), in each case after giving effect to all other liabilities of
such Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (i) in respect of intercompany indebtedness to the Borrower or other
affiliates of the Borrower to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by such Guarantor hereunder and
(ii) under any guaranty which contains a limitation as to maximum amount similar
to that set forth in this SECTION 1(B), pursuant to which the liability of such
Guarantor hereunder is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as assets to the value
(as determined under the applicable provisions of the Fraudulent Transfer Laws)
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of any rights to subrogation, reimbursement, indemnification or contribution of
such Guarantor pursuant to applicable law or pursuant to the terms of any
agreement.
(c) Each Guarantor under this Guaranty and each guarantor under other
guaranties, if any, relating to the Credit Agreement (the "RELATED GUARANTIES")
that contain a contribution provision similar to that set forth in this SECTION
1(C), together desire to allocate among themselves (collectively, the
"CONTRIBUTING GUARANTORS"), in a fair and equitable manner, their obligations
arising under this Guaranty and the Related Guaranties. Accordingly, in the
event any payment or distribution is made on any date by a Guarantor under this
Guaranty or a guarantor under a Related Guaranty, each such Guarantor or such
other guarantor shall be entitled to a contribution from each of the other
Contributing Guarantors in the maximum amount permitted by law so as to maximize
the aggregate amount of the Guarantied Obligations paid to the Beneficiaries.
2. GUARANTY ABSOLUTE; CONTINUING GUARANTY. The obligations of each
Guarantor hereunder are irrevocable, absolute, independent and unconditional and
shall not be affected by any circumstance which constitutes a legal or equitable
discharge of a guarantor or surety other than payment in full of the Guarantied
Obligations. In furtherance of the foregoing and without limiting the generality
thereof, each Guarantor agrees that: (a) this Guaranty is a guaranty of payment
when due and not of collectibility; (b) the Guarantied Party may enforce this
Guaranty upon the occurrence of an Event of Default under the Credit Agreement
notwithstanding the existence of any dispute between the Borrower, any of its
Subsidiaries, or any Guarantor and any Beneficiary with respect to the existence
of such event; (c) the obligations of each Guarantor hereunder are independent
of the obligations of the Borrower under the Loan Documents, and a separate
action or actions may be brought and prosecuted against each Guarantor whether
or not any action is brought against the Borrower, any of its Subsidiaries or
any of such other Guarantors and whether or not the Borrower, any of its
Subsidiaries or any other Guarantor is joined in any such action or actions; and
(d) a payment of a portion, but not all, of the Guarantied Obligations by one or
more Guarantors shall in no way limit, affect, modify or abridge the liability
of such or any other Guarantor for any portion of the Guarantied Obligations
that has not been paid. This Guaranty is a continuing guaranty and shall be
binding upon each Guarantor and its successors and assigns, and each Guarantor
irrevocably waives any right to revoke this Guaranty as to future transactions
giving rise to any Guarantied Obligations.
3. ACTIONS BY THE BENEFICIARIES. Any Beneficiary may from time to time,
without notice or demand and without affecting the validity or enforceability of
this Guaranty or giving rise to any limitation, impairment or discharge of any
Guarantor's liability hereunder, (a) renew, extend, accelerate or otherwise
change the time, place, manner or terms of payment of the Guarantied
Obligations, (b) settle, compromise, release or discharge, or accept or refuse
any offer of performance with respect to, or substitutions for, the Guarantied
Obligations or any agreement relating thereto and/or subordinate the payment of
the same to the payment of any other obligations, (c) request and accept other
guaranties of the Guarantied Obligations and take and hold security for the
payment of this Guaranty or the Guarantied Obligations, (d) release, exchange,
compromise, subordinate or modify, with or without consideration, any security
for payment of the Guarantied Obligations, any other guaranties of the
Guarantied Obligations, or any other obligation of any Person with respect to
the Guarantied Obligations, (e) enforce and apply any security now or hereafter
held by or for the benefit of any Beneficiary in respect of this Guaranty or the
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Guarantied Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that Guarantied Party or the other
Beneficiaries, or any of them, may have against any such security, as Guarantied
Party in its discretion may determine consistent with the Credit Agreement, and
any applicable security agreement, including foreclosure on any such security
pursuant to one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable and (f) exercise any other
rights available to the Guarantied Party or the other Beneficiaries, or any of
them, under the Loan Documents.
4. NO DISCHARGE. This Guaranty and the obligations of the Guarantors
hereunder shall be valid and enforceable and shall not be subject to any
limitation, impairment or discharge for any reason (other than payment in full
of the Guarantied Obligations), including the occurrence of any of the
following, whether or not any Guarantor shall have had notice or knowledge of
any of them: (a) any failure to assert or enforce or agreement not to assert or
enforce, or the stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand or any right,
power or remedy with respect to the Guarantied Obligations or any agreement
relating thereto, or with respect to any other guaranty of or security for the
payment of the Guarantied Obligations, (b) any waiver or modification of, or any
consent to departure from, any of the terms or provisions of the Credit
Agreement, any of the other Loan Documents, or any agreement or instrument
executed pursuant thereto, or of any other guaranty or security for the
Guarantied Obligations, (c) the Guarantied Obligations, or any agreement
relating thereto, at any time being found to be illegal, invalid or
unenforceable in any respect, (d) the application of payments received from any
source to the payment of indebtedness other than the Guarantied Obligations,
even though the Guarantied Party or the other Beneficiaries, or any of them,
might have elected to apply such payment to any part or all of the Guarantied
Obligations, (e) any failure to perfect or continue perfection of a security
interest in any collateral which secures any of the Guarantied Obligations, (f)
any defenses, set-offs or counterclaims which the Borrower, any other Guarantor
or any other Subsidiary of the Borrower may assert against the Guarantied Party
or any Beneficiary in respect of the Guarantied Obligations, including but not
limited to failure of consideration, breach of warranty, payment, statute of
frauds, statute of limitations, accord and satisfaction and usury and (g) any
other act or thing or omission, or delay to do any other act or thing, which may
or might in any manner or to any extent vary the risk of a Guarantor as an
obligor in respect of the Guarantied Obligations.
5. WAIVERS. Each Guarantor waives, for the benefit of the Beneficiaries:
(a) any right to require the Guarantied Party or the other Beneficiaries, as a
condition of payment or performance by such Guarantor, to (i) proceed against
the Borrower, any other guarantor (including any other Guarantor) of the
Guarantied Obligations, any other Subsidiary of the Borrower or any other
Person, (ii) proceed against or exhaust any security held from the Borrower, any
other guarantor of the Guarantied Obligations, any other Subsidiary of the
Borrower or any other Person, (iii) proceed against or have resort to any
balance of any deposit account or credit on the books of any Beneficiary in
favor of the Borrower, any other Guarantor, any other Subsidiary of the Borrower
or any other Person, or (iv) pursue any other remedy in the power of any
Beneficiary; (b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of the Borrower, any other
Guarantor or any other Subsidiary of the Borrower including any defense based on
or arising out of the lack of validity or the unenforceability of the Guarantied
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Obligations or any agreement or instrument relating thereto or by reason of the
cessation of the liability of the Borrower, any other Guarantor or any other
Subsidiary of the Borrower from any cause other than payment in full of the
Guarantied Obligations; (c) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the principal; (d) any
defense based upon the Guarantied Party's or any other Beneficiary's errors or
omissions in the administration of the Guarantied Obligations, except behavior
that amounts to gross negligence or willful misconduct; (e) (i) any principles
or provisions of law, statutory or otherwise, that are or might be in conflict
with the terms of this Guaranty and any legal or equitable discharge of such
Guarantor's obligations hereunder, (ii) the benefit of any statute of
limitations affecting such Guarantor's liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims and (iv)
promptness, diligence and any requirement that any Beneficiary protect, secure,
perfect or insure any Lien or any property subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance of this Guaranty,
notices of default under the Credit Agreement, notices of any renewal, extension
or modification of the Guarantied Obligations or any agreement related thereto,
notices of any extension of credit to the Borrower, any other Guarantor or any
other Subsidiary of the Borrower and notices of any of the matters referred to
in SECTIONS 3 and 4 hereof and any right to consent to any thereof; and (g) to
the fullest extent permitted by law, any defenses or benefits that may be
derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms of this Guaranty.
As used in this paragraph, any reference to "the principal" includes the
Borrower, and any reference to "the creditor" includes the Guarantied Party and
each other Beneficiary. In accordance with Section 2856 of the California Civil
Code each Guarantor waives any and all rights and defenses available to it by
reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of the California
Civil Code, including any and all rights or defenses such Guarantor may have
because the Guarantied Obligations are secured by real property or by reason of
protection afforded to the principal with respect to any of the Guarantied
Obligations, or to any other guarantor of any of the Guarantied Obligations with
respect to any of such guarantor's obligations under its guaranty, in either
case pursuant to the antideficiency or other laws of the State of California
limiting or discharging the principal's indebtedness or such guarantor's
obligations, including Section 580a, 580b, 580d or 726 of the California Code of
Civil Procedure. Consequently, among other things: (1) the creditor may collect
from such Guarantor without first foreclosing on any real or personal property
collateral pledged by the principal; and (2) if the creditor forecloses on any
real property collateral pledged by the principal: (A) the amount of the
Guarantied Obligations may be reduced only by the price for which the collateral
is sold at the foreclosure sale, even if the collateral is worth more than the
sale price and (B) the creditor may collect from such Guarantor even if the
creditor, by foreclosing on the real property collateral, has destroyed any
right such Guarantor may have to collect from the principal. This is an
unconditional and irrevocable waiver of any right and defenses such Guarantor
may have because the Guarantied Obligations are secured by real property. Each
Guarantor also waives all rights and defenses arising out of an election of
remedies by the creditor, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a Guarantied Obligation,
has destroyed such Guarantor's rights of subrogation and reimbursement against
the principal by the operation of Section 580d of the Code of Civil Procedure or
otherwise; and even though that election of remedies by the creditor, such as
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nonjudicial foreclosure with respect to security for an obligation of any other
guarantor of any of the Guarantied Obligations, has destroyed such Guarantor's
rights of contribution against such other guarantor. No other provision of this
Guaranty shall be construed as limiting the generality of any of the covenants
and waivers set forth in this paragraph. As provided below, this Guaranty shall
be governed by, and shall be construed and enforced in accordance with, the law
of the State of New York. This paragraph is included solely out of an abundance
of caution, and shall not be construed to mean that any of the above-referenced
provisions of California law are in any way applicable to this Guaranty or to
any of the Guarantied Obligations.
6. GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC.; SUBORDINATION OF
OTHER OBLIGATIONS. Each Guarantor waives any claim, right or remedy, direct or
indirect, that such Guarantor now has or may hereafter have against the
Borrower, any other Guarantor, any other Subsidiary of Borrower or their
respective assets in connection with this Guaranty or the performance by such
Guarantor of its obligations hereunder, in each case whether such claim, right
or remedy arises in equity, under contract, by statute (including under
California Civil Code Section 2847, 2848 or 2849), under common law or otherwise
and including (a) any right of subrogation, reimbursement or indemnification
that such Guarantor now has or may hereafter have against the Borrower, any
other Guarantor or any other Subsidiary of the Borrower, (b) any right to
enforce, or to participate in, any claim, right or remedy that any Beneficiary
now has or may hereafter have against the Borrower, any other Guarantor or any
other Subsidiary of the Borrower and (c) any benefit of, and any right to
participate in, any collateral or security now or hereafter held by any
Beneficiary. In addition, until the Guarantied Obligations shall have been paid
in full, each Guarantor shall withhold exercise of any right of contribution
such Guarantor may have against any other guarantor of any of the Guarantied
Obligations. Each Guarantor further agrees that, to the extent the waiver or
agreement to withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of
subrogation, reimbursement or indemnification such Guarantor may have against
the Borrower, any other Guarantor or any other Subsidiary of the Borrower or
against any collateral or security, and any rights of contribution such
Guarantor may have against any such other guarantor, shall be junior and
subordinate to any rights the Guarantied Party or the other Beneficiaries may
have against the Borrower, any other Guarantor or any other Subsidiary of the
Borrower, to all right, title and interest the Guarantied Party or the other
Beneficiaries may have in any such collateral or security, and to any right the
Guarantied Party or the other Beneficiaries may have against such other
guarantor.
Any indebtedness of the Borrower, any other Guarantor or any other
Subsidiary of the Borrower now or hereafter held by any Guarantor is
subordinated in right of payment to the Guarantied Obligations, and any such
indebtedness of the Borrower, any other Guarantor or any other Subsidiary of the
Borrower to a Guarantor collected or received by such Guarantor after an Event
of Default has occurred and is continuing, and any amount paid to a Guarantor on
account of any subrogation, reimbursement, indemnification or contribution
rights referred to in the preceding paragraph when all Guarantied Obligations
have not been paid in full, shall be held in trust for the Guarantied Party on
behalf of the Beneficiaries and shall forthwith be paid over to the Guarantied
Party for the benefit of the Beneficiaries to be credited and applied against
the Guarantied Obligations.
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7. EXPENSES. The Guarantors jointly and severally agree to pay or
reimburse the Guarantied Party and each Beneficiary for all costs and expenses
incurred in connection with the enforcement, attempted enforcement or
preservation of any rights or remedies under this Guaranty, including all
Attorney Costs.
8. FINANCIAL CONDITION OF THE BORROWER, ANY OTHER GUARANTOR OR ANY OTHER
SUBSIDIARY OF THE Borrower. No Beneficiary shall have any obligation, and each
Guarantor waives any duty on the part of any Beneficiary, to disclose or discuss
with such Guarantor its assessment, or such Guarantor's assessment, of the
financial condition of the Borrower, any other Guarantor or any other Subsidiary
of the Borrower or any matter or fact relating to the business, operations or
condition of the Borrower, any other Guarantor or any other Subsidiary of the
Borrower. Each Guarantor has adequate means to obtain information from the
Borrower, any other Guarantor or any other Subsidiary of the Borrower on a
continuing basis concerning the financial condition of the Borrower, any other
Guarantor or any other Subsidiary of the Borrower and its ability to perform its
obligations under the Loan Documents, and each Guarantor assumes the
responsibility for being and keeping informed of the financial condition of the
Borrower, any other Guarantor or any other Subsidiary of the Borrower and of all
circumstances bearing upon the risk of nonpayment of the Guarantied Obligations.
9. REPRESENTATIONS AND WARRANTIES. Each Guarantor makes, for the benefit
of the Beneficiaries, each of the representations and warranties made in the
Credit Agreement by the Borrower as to such Guarantor, its assets, financial
condition, operations, organization, legal status, business and the Loan
Documents to which it is a party.
10. COVENANTS. Each Guarantor agrees that, so long as any part of the
Guarantied Obligations shall remain unpaid, such Guarantor will, unless Required
Lenders shall otherwise consent in writing, perform or observe, and cause its
Subsidiaries to perform or observe, all of the terms, covenants and agreements
that the Loan Documents state that the Borrower is to cause a Guarantor and such
Subsidiaries to perform or observe.
11. SET OFF. In addition to any other rights any Beneficiary may have under
law or in equity, if any amount shall at any time be due and owing by a
Guarantor to any Beneficiary under this Guaranty, such Beneficiary is authorized
at any time or from time to time, without notice (any such notice being
expressly waived), to set off and to appropriate and to apply any and all
deposits (general or special, including but not limited to indebtedness
evidenced by certificates of deposit, whether matured or unmatured) and any
other indebtedness of such Beneficiary owing to a Guarantor and any other
property of such Guarantor held by a Beneficiary to or for the credit or the
account of such Guarantor against and on account of the Guarantied Obligations
and liabilities of such Guarantor to any Beneficiary under this Guaranty.
12. DISCHARGE OF GUARANTY. If all of the stock of a Guarantor or any of its
successors in interest under this Guaranty shall be sold or otherwise disposed
of (including by merger or consolidation) in any sale or other disposition to a
Person (other than a Subsidiary or an Affiliate of the Borrower) not prohibited
by the Credit Agreement or otherwise consented to by Required Lenders, the
obligations of such Guarantor or such successor in interest, as the case may be,
hereunder shall automatically be discharged and released without any further
action by any Beneficiary or any other Person effective as of the time of such
sale; provided that, if the sale of such stock constitutes a disposition of
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assets as a condition precedent to such discharge and release, the Guarantied
Party shall have received evidence satisfactory to it that arrangements
satisfactory to it have been made for delivery to the Guarantied Party of the
Net Cash Proceeds (if any) as required by the Credit Agreement.
13. AMENDMENTS AND WAIVERS. No amendment, modification, termination or
waiver of any provision of this Guaranty, and no consent to any departure by any
Guarantor therefrom, shall in any event be effective without the written
concurrence of the Guarantied Party and, in the case of any such amendment or
modification, the Guarantors. Any such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given.
14. MISCELLANEOUS. It is not necessary for the Beneficiaries to inquire
into the capacity or powers of any Guarantor, the Borrower, or any other
Subsidiary of the Borrower, or the officers, directors or any agents acting or
purporting to act on behalf of any of them.
The rights, powers and remedies given to the Beneficiaries by this Guaranty
are cumulative and shall be in addition to and independent of all rights, powers
and remedies given to the Beneficiaries by virtue of any statute or rule of law
or in any of the Loan Documents or any agreement between one or more Guarantors
and one or more Beneficiaries or between the Borrower, or any Subsidiary of the
Borrower and one or more Beneficiaries. Any forbearance or failure to exercise,
and any delay by any Beneficiary in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be
a waiver thereof, nor shall it preclude the further exercise of any such right,
power or remedy.
If any provision of this Guaranty is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of this Guaranty shall not be affected or impaired thereby and (b)
the parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE.
The rules of construction set forth in Sections 1.02 and 1.05 of the Credit
Agreement shall be applicable to this Agreement MUTATIS MUTANDIS.
This Guaranty shall inure to the benefit of the Beneficiaries and their
respective successors and assigns.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY MAY BE BROUGHT
IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN NEW YORK CITY OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF
THIS GUARANTY, THE GUARANTORS, THE GUARANTIED PARTY AND EACH BENEFICIARY
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
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JURISDICTION OF THOSE COURTS. THE GUARANTORS, THE GUARANTIED PARTY AND EACH
BENEFICIARY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING 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. THE GUARANTORS, THE GUARANTIED PARTY
AND EACH BENEFICIARY WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.
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 THE GUARANTY
OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO, 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.
If, for the purposes of obtaining judgment in any court, it is necessary to
convert Original Currency into Other Currency, the parties hereto agree, to the
fullest extent permitted by law, that the rate of exchange used shall be that at
which in accordance with normal banking procedures, the Guarantied Party or a
Beneficiary could purchase the Original Currency with such Other Currency in New
York, New York on the Business Day immediately preceding the day on which any
such judgment, or any relevant part thereof, is given. The obligations of any
Guarantor in respect of any sum due from it to the Guarantied Party or any
Beneficiary hereunder shall, notwithstanding any judgment in such Other
Currency, be discharged only to the extent that on the Business Day following
receipt by such Guarantied Party or Beneficiary of any sum adjudged to be so due
in such Other Currency such Guarantied Party or Beneficiary may in accordance
with normal banking procedures purchase the Original Currency with such Other
Currency; if the Original Currency so purchased is less than the sum originally
due such Guarantied Party or Beneficiary in the Original Currency, the Guarantor
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such Guarantied Party or Beneficiary against such loss, and if the
Original Currency so purchased exceeds the sum originally due to such Guarantied
Party or Beneficiary in the Original Currency, such agent or Lender shall remit
such excess to such Guarantor.
15. ADDITIONAL GUARANTORS. The initial Guarantor(s) hereunder shall be such
of the Domestic Subsidiaries of the Borrower as are signatories hereto on the
date hereof. From time to time subsequent to the date hereof, Subsidiaries of
the Borrower may become parties hereto, as additional Guarantors (each an
"ADDITIONAL GUARANTOR"), by executing a counterpart, a form of which is attached
hereto as EXHIBIT A, of this Guaranty. Upon delivery of any such counterpart to
9
the Guarantied Party, notice of which is hereby waived by the Guarantors, each
such Additional Guarantor shall be a Guarantor and shall be as fully a party
hereto as if such Additional Guarantor were an original signatory hereof. Each
Guarantor expressly agrees that its obligations arising hereunder shall not be
affected or diminished by the addition or release of any other Guarantor
hereunder, nor by any election of the Guarantied Party not to cause any
Subsidiary of the Borrower to become an Additional Guarantor hereunder. This
Guaranty shall be fully effective as to any Guarantor that is or becomes a party
hereto regardless of whether any other Person becomes or fails to become or
ceases to be a Guarantor hereunder.
16. COUNTERPARTS; EFFECTIVENESS. This Guaranty may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument; signature pages may be
detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Guaranty shall become effective as to each Guarantor upon the
execution of a counterpart hereof by such Guarantor (whether or not a
counterpart hereof shall have been executed by any other Guarantor). Any
counterpart of this Guaranty may be transmitted and/or signed by facsimile. The
effectiveness of such counterpart and signatures shall, subject to applicable
Law, have the same force and effect as manually-signed originals and shall be
binding on all Guarantors. The Guarantied Party may also require that any such
counterpart and signatures be confirmed by a manually-signed original thereof;
PROVIDED, HOWEVER, that the failure to request or deliver the same shall not
limit the effectiveness of any facsimile counterpart or signature.
17. THE GUARANTIED PARTY AS AGENT.
(a) The Guarantied Party has been appointed to act as Guarantied Party
hereunder by the Lenders. The Guarantied Party shall be obligated, and shall
have the right hereunder, to make demands, to give notices, to exercise or
refrain from exercising any rights and to take or refrain from taking any
action, solely in accordance with this Guaranty and the Credit Agreement.
(b) The Guarantied Party shall at all times be the same Person that is the
Administrative Agent under the Credit Agreement. Written notice of resignation
by the Administrative Agent pursuant to Section 9.09 of the Credit Agreement
shall also constitute notice of resignation as Guarantied Party under this
Guaranty; and appointment of a successor administrative agent pursuant to
Section 9.09 of the Credit Agreement shall also constitute appointment of a
successor Guarantied Party under this Guaranty. Upon the acceptance of any
appointment as administrative agent under Section 9.09 of the Credit Agreement
by a successor administrative agent, that successor administrative agent shall
thereupon succeed to become vested with all the rights, powers, privileges and
duties of the retiring Guarantied Party under this Guaranty, and the retiring
Guarantied Party under this Guaranty shall promptly (i) transfer to such
successor Guarantied Party all sums held hereunder, together with all records
and other documents necessary or appropriate in connection with the performance
of the duties of the successor Guarantied Party under this Guaranty and (ii)
take such other actions as may be necessary or appropriate in connection with
the assignment to such successor Guarantied Party of the rights created
hereunder, whereupon such retiring Guarantied Party shall be discharged from its
duties and obligations under this Guaranty. After any retiring Guarantied
Party's resignation hereunder as Guarantied Party, the provisions of this
10
Guaranty shall inure to its benefits as to any actions taken or omitted to be
taken by it under this Guaranty while it was the Guarantied Party hereunder.
[The remainder of this page has been intentionally left blank.]
11
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed
and delivered by its officer thereunto duly authorized as of the date first
written above.
LEVI XXXXXXX & CO.
By:
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
LEVI XXXXXXX-ARGENTINA, LLC.
By:
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
LEVI XXXXXXX FINANCIAL CENTER CORPORATION
By:
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
LEVI XXXXXXX GLOBAL FULFILLMENT SERVICES,
INC.
By:
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
LEVI XXXXXXX GLOBAL OPERATIONS, INC.
By:
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
LEVI XXXXXXX INTERNATIONAL
By:
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
LEVI XXXXXXX INTERNATIONAL, INC.
By:
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
LEVI XXXXXXX RECEIVABLES FUNDING, LLC
By:
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
LEVI XXXXXXX SECURITIZATION CORP.
By:
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
LEVI XXXXXXX SERVICES INC.
By:
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
LEVI XXXXXXX, U.S.A., LLC
By:
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
LEVI'S ONLY STORES, INC.
By:
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
BATTERY STREET ENTERPRISES, INC.
By:
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
NF INDUSTRIES, INC.
By:
____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
XXXXXXXX COMMODITIES GROUP
By:
____________________________________
Name: Xxxxxx XxxXxx
Title: Treasurer
Address: Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
ACKNOWLEDGED AND FOR PURPOSES OF
THE WAIVER OF JURY TRIAL SET FORTH
IN SECTION 14 HEREOF ONLY, AGREED AS
OF THE DATE FIRST WRITTEN ABOVE
BANK OF AMERICA, N.A.,
as Administrative Agent as Guarantied Party
By:
____________________________________
Name:
Title:
EXHIBIT A TO
SUBSIDIARY GUARANTY
FORM OF COUNTERPART FOR ADDITIONAL GUARANTORS
This COUNTERPART (this "COUNTERPART"), dated as of _______, _____, is
delivered pursuant to Section 15 of the Guaranty referred to below. The
undersigned hereby agrees that this Counterpart may be attached to the Guaranty,
dated as of September 29, 2003 (as it may be from time to time amended,
supplemented, restated or otherwise modified, the "GUARANTY"; the terms defined
therein being used herein as therein defined), among the Guarantors named
therein and Bank of America, N.A., as Guarantied Party. The undersigned, by
executing and delivering this Counterpart, hereby becomes an Additional
Guarantor under the Guaranty in accordance with Section 15 thereof and agrees to
be bound by all of the terms thereof.
IN WITNESS WHEREOF, the undersigned has caused this Counterpart to be duly
executed and delivered by its officer thereunto duly authorized as of
______________, ____.
[NAME OF ADDITIONAL GUARANTOR]
By:
____________________________________
Name:
Title:
Address:____________________________
____________________________
____________________________
A-1
