GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT dated as of September __, 1999 (the "Guaranty") is
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given by XXXXXXXX'X INC., a Delaware corporation, and the subsidiaries and
affiliates identified on the signature pages hereto and as may hereafter join as
a Guarantor hereunder (collectively, the "Guarantors"), in favor of BANK OF
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AMERICA, N.A., as Administrative Agent (in such capacity, the "Administrative
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Agent") for the Lenders under the Crescent Credit Agreement referenced below.
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W I T N E S S E T H
WHEREAS, a $112.5 million revolving credit facility, as increased or
decreased from time to time, has been established in favor of Crescent Jewelers,
a California corporation (the "Borrower") pursuant to the terms of that Credit
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Agreement dated as of the date hereof (as amended, modified, extended renewed or
replaced, the "Crescent Credit Agreement"; capitalized terms used herein but not
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otherwise defined herein shall have the meanings provided in the Crescent Credit
Agreement) among the Borrower, the subsidiaries and affiliates identified
therein, as guarantors (the "Crescent Guarantors"), the lenders identified
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therein (the "Lenders"), Bank of America, N.A., as administrative agent and
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General Electric Capital Corporation, as documentation agent;
WHEREAS, this Guaranty is a condition precedent to the obligations of the
Lenders to make loans and extensions of credit to the Borrower under the
Crescent Credit Agreement;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Guarantors hereby agree as follows:
1. The Guaranty. Each of the Guarantors hereby jointly and severally
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guarantees to each Lender, each affiliate of a Lender that enters into a Hedging
Agreement with the Borrower and the Administrative Agent as hereinafter
provided, as primary obligor and not as surety, the prompt payment of the
Guaranteed Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) strictly in accordance with the terms thereof. The Guarantors hereby
further agree that if any of the Guaranteed Obligations then due are not paid in
full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise), the
Guarantors will, jointly and severally, promptly pay the same, without any
further demand or notice whatsoever, and that in the case of any extension of
time of payment or renewal of any of the Guaranteed Obligations, the same will
be promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
in accordance with the terms of such extension or renewal.
This is a guaranty of payment and not of collection.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents, in the event of a bankruptcy or other similar
insolvency proceeding of a Guarantor, the obligations of each such Guarantor
hereunder shall be limited to an aggregate
amount equal to the largest amount that would not render its Guaranteed
Obligations hereunder subject to avoidance under Section 548 of the Bankruptcy
Code or any comparable provisions of any applicable state law.
As used herein,
"Guaranteed Obligations" means, collectively:
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(i) all unpaid principal of and interest on (including, interest
accruing after the occurrence of a Bankruptcy Event, regardless of whether
such interest is an allowed claim under the Bankruptcy Code) the loans and
obligations of the Borrower under the Crescent Credit Agreement, the prompt
payment and performance of the guaranty obligations of the Crescent Guarantors
under the Crescent Credit Agreement, and the other obligations (including
indemnities, payment of fees, recovery of expenses and costs of enforcement
and collection) owing under the other Credit Documents relating to the
Crescent Credit Agreement, howsoever evidenced, created, incurred or acquired,
whether primary, secondary, direct, contingent, or joint and several; and
(ii) all obligations and liabilities owing under Hedging Agreements
with Lenders or affiliates of Lenders under the Crescent Credit Agreement to
the extent the permitted under the Crescent Credit Agreement.
2. Guaranteed Obligations Unconditional. The obligations of the
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Guarantors under Section 1 are joint and several, absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Credit Documents or Hedging Agreements, or any other agreement or
instrument referred to therein, or any substitution, compromise, release,
impairment or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 2 that the obligations of the Guarantors
hereunder shall be absolute and unconditional under any and all circumstances.
Without limiting the generality of the foregoing, it is agreed that, to the
fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor hereunder
which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to any Guarantor,
the time for any performance of or compliance with any of the Guaranteed
Obligations shall be extended, or such performance or compliance shall be
waived;
(b) any of the acts mentioned in any of the provisions of any of the
Credit Documents, any Hedging Agreements between a Lender or an affiliate
of a Lender and the Borrower, or any other agreement or instrument referred
to in the Credit Documents or such Hedging Agreements shall be done or
omitted;
(c) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under any of the
Credit Documents, any Hedging Agreement between a Lender or
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any affiliate of a Lender and the Borrower, or any other agreement or
instrument referred to in the Credit Documents or such Hedging Agreements
shall be waived or any other guarantee of any of the Guaranteed Obligations
or any security therefor shall be released, impaired or exchanged in whole
or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Administrative Agent or
any Lender or Lenders as security for any of the Guaranteed Obligations
shall fail to attach or be perfected; or
(e) any of the Guaranteed Obligations shall be determined to be void or
voidable (including, without limitation, for the benefit of any creditor of
any Guarantor) or shall be subordinated to the claims of any Person
(including, without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment (except as expressly provided
Section 1), protest, notice of acceptance of this Guaranty and of extensions of
credit which may constitute Guaranteed Obligations, notice of amendments,
waivers or supplements to the Credit Documents or the compromise, release or
exchange of collateral or security and all other notices whatsoever, and any
requirement that the Administrative Agent or any Lender exhaust any right, power
or remedy or proceed against any Person under any of the Credit Documents, any
Hedging Agreements between a Lender or any affiliate of a Lender and the
Borrower, or any other agreement or instrument referred to in the Credit
Documents, or such Hedging Agreements or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
3. Reinstatement. Neither the Guarantors' obligations hereunder nor any
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remedy for the enforcement thereof shall be impaired, modified, changed or
released in any manner whatsoever by an impairment, modification, change,
release or limitation of the liability of the Borrower, by reason of the
Borrower's bankruptcy or insolvency or by reason of the invalidity or
unenforceability of all or any portion of the Guaranteed Obligations. The
obligations of the Guarantors under this Guaranty shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of any Person in respect of the Guaranteed Obligations is rescinded or must be
otherwise restored by any holder of any of the Guaranteed Obligations, whether
as a result of any proceedings in bankruptcy or reorganization or otherwise, and
each Guarantor agrees that it will indemnify the Administrative Agent and each
Lender on demand for all reasonable costs and expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
4. Certain Additional Waivers. The Guarantor agrees that this Guaranty may
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be enforced by the Administrative Agent and the Lenders without the necessity of
resorting to or exhausting any other security or collateral and without the
necessity at any time of having recourse to the Borrower under the Crescent
Credit Agreement or any collateral securing the Guaranteed Obligations or
otherwise, and each Guarantor agrees not to assert any right to require the
Administrative Agent and the Lenders to proceed against the Borrower or any
other Person (including any co-guarantor) or to require the Administrative Agent
and the Lenders to pursue
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any other remedy or enforce any other right. Each Guarantor further agrees that
it shall not exercise its right of subrogation, reimbursement or indemnity, nor
shall it exercise right of recourse to security, if any, for the Guaranteed
Obligations so long as any amounts payable to the Administrative Agent or the
Lenders in respect of the Guaranteed Obligations shall remain outstanding and
until all of the Commitments shall have expired or been terminated. Each
Guarantor further acknowledges and agrees that, subject to Section 28 hereof,
nothing contained in this Guaranty shall prevent the Administrative Agent or the
Lenders from suing the Borrower in respect of its obligations under the Crescent
Credit Agreement and the other Credit Documents or foreclosing on any security
interest or lien on any collateral securing the Guaranteed Obligations or from
exercising any other rights available to the Administrative Agent and the
Lenders under the Credit Documents if neither the Borrower nor the Guarantors
timely perform their obligations, and the exercise of any of such rights and
completion of any such foreclosure proceedings shall not constitute a discharge
of any of the Guarantors' obligations hereunder unless as a result thereof the
Guaranteed Obligations shall have been paid in full and all of the Commitments
shall have terminated or expired, it being the purpose and intent that the
Guarantors' obligations hereunder be absolute, irrevocable, independent and
unconditional under all circumstances.
5. Remedies. Each Guarantor agrees that, to the fullest extent permitted
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by law, as between the Guarantors, on the one hand, and the Administrative Agent
and the Lenders, on the other hand, the Guaranteed Obligations may be declared
to be forthwith due and payable for purposes of Section 1 notwithstanding any
stay, injunction or other prohibition preventing such declaration (or preventing
such Guaranteed Obligations from becoming automatically due and payable) as
against any other Person and that, in the event of such declaration (or such
Guaranteed Obligations being deemed to have become automatically due and
payable), such Guaranteed Obligations (whether or not due and payable by any
other Person) shall forthwith become due and payable by the Guarantors for
purposes of Section 1. The Guarantors acknowledge and agree that their
obligations hereunder are secured in accordance with the terms of the Collateral
Documents and that the Lenders may exercise their remedies thereunder in
accordance with the terms thereof.
6. Attorneys' Fees and Costs of Collection. If at any time or times
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hereafter the Administrative Agent or the Lenders employ counsel to pursue
collection, to intervene, to xxx for enforcement of the terms hereof or of the
Crescent Credit Agreement or any other of the Credit Documents, or to file a
petition, complaint, answer, motion or other pleading in any suit or proceeding
relating to this Guaranty, the Crescent Credit Agreement or any other of the
Credit Documents, then in such event, all of the reasonable attorneys' fees
actually incurred relating thereto shall be an additional liability of the
Guarantors to the Administrative Agent and the Lenders hereunder, payable on
demand.
7. Right of Set-Off. After the occurrence of an Event of Default under the
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Crescent Credit Agreement, any Lender may set-off any matured obligation owed by
any Guarantor under this Guaranty (to the extent beneficially owned or held by
such Lender) against any obligation (whether or not matured) owed by such Lender
to such Guarantor, regardless of the place of payment. If any obligation is
unliquidated or unascertained, such Lender may set-off in any amount estimated
by it in good faith to be the amount of that obligation. Any such payments
received by any Lender shall be shared in the manner described in Section 3.14
of the Crescent Credit Agreement.
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8. Term of Guarantee. This Guaranty shall continue in full force and effect
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until the Guaranteed Obligations are fully and indefeasibly paid, performed and
discharged and all Commitments have expired or been terminated. This Guaranty
covers the Guaranteed Obligations whether presently outstanding or arising
subsequent to the date hereof including all amounts advanced by the
Administrative Agent or any Lender in stages or installments.
9. Further Representations and Warranties. Each Guarantor agrees that the
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Administrative Agent and the Lenders will have no obligation to investigate the
financial condition or affairs of the Borrower for the benefit of the Guarantor
nor to advise the Guarantor of any fact respecting, or any change in, the
financial condition or affairs of the Borrower which might come to the knowledge
of the Administrative Agent or any Lender at any time, whether or not the
Administrative Agent or any Lender knows or believes or has reason to know or
believe that any such fact or change is unknown to such Guarantor or might (or
does) materially increase the risk of such Guarantor as guarantor or might (or
would) affect the willingness of the Guarantor to continue as guarantor with
respect to the Guaranteed Obligations.
10. Additional Liability of Guarantors. If any Guarantor is or becomes
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liable for any indebtedness owing by the Borrower to the Administrative Agent or
any Lender by endorsement or otherwise other than under this Guaranty, such
liability shall not be in any manner impaired or reduced hereby but shall have
all and the same force and effect it would have had if this Guaranty had not
existed and such Guarantor's liability hereunder shall not be in any manner
impaired or reduced thereby.
11. Cumulative Rights. All rights of the Administrative Agent and the
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Lenders hereunder or otherwise arising under any documents executed in
connection with or as security for the Guaranteed Obligations are separate and
cumulative and may be pursued separately, successively or concurrently, or not
pursued, without affecting or limiting any other right of the Administrative
Agent or any Lender and without affecting or impairing the liability of any of
the Guarantors.
12. Usury. Notwithstanding any other provisions herein contained, no
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provision of this Guaranty shall require or permit the collection from any
Guarantor of interest in excess of the maximum rate or amount that such
Guarantor may be required or permitted to pay pursuant to any applicable law.
In the event any such interest is collected, it shall be applied in reduction of
such Guarantor's obligations hereunder, and the remainder of such excess
collected shall be returned to the Guarantor once such obligations have been
fully satisfied.
13. The Administrative Agent. In acting under or by virtue of this
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Guaranty, the Administrative Agent shall be entitled to all the rights,
authority, privileges and immunities provided in the Crescent Credit Agreement,
all of which provisions are incorporated by reference herein with the same force
and effect as if set forth herein.
14. Successors and Assigns. This Guaranty shall be binding on and
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enforceable against each Guarantor and its successors and assigns; provided
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that, none of the Guarantors may assign or transfer any of its obligations
hereunder without prior written consent of the requisite Lenders as provided in
the Crescent Credit Agreement. This Guaranty is intended for and shall
5
inure to the benefit of the Administrative Agent and each Lender and each and
every person who shall from time to time be or become the owner or holder of any
of the Guaranteed Obligations, and each and every reference herein to
"Administrative Agent" or "Lender" shall include and refer to each and every
successor or assignee of the Administrative Agent or any Lender at any time
holding or owning any part of or interest in any part of the Guaranteed
Obligations. This Guaranty shall be transferable and negotiable with the same
force and effect, and to the same extent, that the Guaranteed Obligations are
transferable and negotiable, it being understood and stipulated that upon
assignment or transfer by the Administrative Agent or any Lender of any of the
Guaranteed Obligations the legal holder or owner of the Guaranteed Obligations
(or a part thereof or interest therein thus transferred or assigned by the
Administrative Agent or any Lender) shall (except as otherwise stipulated by the
Administrative Agent or any such Lender in its assignment) have and may exercise
all of the rights granted to the Administrative Agent or such Lender under this
Guaranty to the extent of that part of or interest in the Guaranteed Obligations
thus assigned or transferred to said person. Each Guarantor expressly waives
notice of transfer or assignment of the Guaranteed Obligations, or any part
thereof, or of the rights of the Administrative Agent or any Lender hereunder.
Failure to give notice will not affect the liabilities of the Guarantors
hereunder.
15. Application of Payments. Each of the Administrative Agent and the
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Lenders may apply any payments received by it from any source against that
portion of the Guaranteed Obligations (principal, interest, court costs,
attorneys' fees or other) in such priority and fashion as it may deem
appropriate.
16. Modifications. Subject to the terms of the Crescent Credit Agreement,
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this Guaranty and the provisions hereof may be changed, discharged or terminated
only by an instrument in writing signed by each of the Guarantors affected
thereby and the Administrative Agent.
17. Notices. Except as otherwise expressly provided herein, all notices
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and other communications shall have been duly given and shall be effective (a)
when delivered, (b) when transmitted via telecopy (or other facsimile device) to
the number set out below, (c) the Business Day following the day on which the
same has been delivered prepaid to a reputable national overnight air courier
service, or (d) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address set forth below or at such other address as
such party may specify by written notice to the other parties hereto:
if to any Guarantors:
c/x Xxxxxxxx'x, Inc.
0 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Sughia
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
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Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. XxXxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Administrative Agent:
Bank of America, N.A.
000 X. Xxxxx Xxxxxx
Independence Center, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxx Xxxxx
Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Bank of America, N.A.
000 Xxxxxxxxx Xxxxxx, XX
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
Bank of America, N.A.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
18. Taxes.
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(a) Any and all payments by any Guarantor to or for the account of any
Lender or the Administrative Agent hereunder or under any other Credit
Document shall be made free and clear of and without deduction for any and
all present or future taxes, duties, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto, excluding, in
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the case of each Lender and the Administrative Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction under the
laws of which such Lender (or its Applicable Lending Office) or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof (all such
7
non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as "Taxes"). If
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any Guarantor shall be required by law to deduct any Taxes from or in
respect of any sum payable under this Guaranty or any other Credit Document
to any Lender or the Administrative Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions such
Lender or the Administrative Agent receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Guarantor
shall make such deductions, (iii) such Guarantor shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law, and (iv) such Guarantor shall furnish to
the Administrative Agent, at its address referred to in Section 12.1 of the
Guaranty, the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, each Guarantor agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made by such
Guarantor under this Guaranty or any other Credit Document or from the
execution or delivery of, or otherwise with respect to, this Guaranty or
any other Credit Document (hereinafter referred to as "Other Taxes").
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(c) Each Guarantor agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes paid by
such Lender or the Administrative Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom
or with respect thereto.
(d) Each Lender that is not a United States person under Section
7701(a)(30) of the Code, on or prior to the Closing Date in the case of
each Lender listed on the signature pages to the Crescent Credit Agreement
and on or prior to the date on which it becomes a Lender in the case of
each other Lender, and from time to time thereafter if requested in writing
by any Guarantor or the Administrative Agent (but only so long as such
Lender remains lawfully able to do so), shall provide the Guarantors and
the Administrative Agent with (i) Internal Revenue Service Form 1001 or
4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under
an income tax treaty to which the United States is a party which reduces
the rate of withholding tax on payments of interest or certifying that the
income receivable pursuant to this Guaranty is effectively connected with
the conduct of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 or W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, and/or (iii) any other form or
certificate required by any taxing authority (including any certificate
required by Sections 871(h) and 881(c) of the Internal Revenue Code),
certifying that such Lender is entitled to an exemption from or a reduced
rate of tax on payments pursuant to this Guaranty or any of the other
Credit Documents.
(e) For any period with respect to which a Lender has failed to provide
the Guarantors and the Administrative Agent with the appropriate form
pursuant to Section 18(d) (unless such failure is due to a change in
treaty, law, or regulation occurring subsequent to the date on which a form
originally was required to be provided), such Lender shall not be entitled
to indemnification under Section 18(a) or 18(b) with respect to Taxes
imposed by the United States; provided, however, that should a Lender,
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which is otherwise exempt from or subject to a reduced rate of withholding
tax, become subject to Taxes because of its failure to deliver a form
required hereunder, the Guarantors shall take such steps as such Lender
shall reasonably request to assist such Lender to recover such Taxes.
8
(f) If any Guarantor is required to pay additional amounts to or for
the account of any Lender pursuant to this Section 18, then such Lender
will agree to use reasonable efforts to change the jurisdiction of its
Applicable Lending Office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the judgment of such
Lender, is not otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
applicable Guarantor shall furnish to the Administrative Agent the original
or a certified copy of a receipt evidencing such payment.
(h) If the Administrative Agent or any Lender shall become aware that
is entitled to a refund in respect of Taxes for which it has been
indemnified by a Guarantor pursuant to this Section, the Administrative
Agent or such Lender shall promptly notify such Guarantor of the
availability of such refund and shall apply for such refund at the
Borrower's sole cost and expense. If the Administrative Agent or any Lender
shall receive a refund in respect of any such Taxes as to which it has been
indemnified by a Guarantor pursuant to this Section, the Administrative
Agent or such Lender shall promptly notify such Guarantor of such refund
and shall, within 30 days of receipt, pay such refund (to the extent of
amounts that have been paid by such Guarantor under this Section with
respect to such refund and not previously reimbursed) to such Guarantor,
net of all reasonable out-of-pocket expenses of such Lender or the
Administrative Agent and without interest (other than the interest, if any,
included in such refund).
(i) Without prejudice to the survival of any other agreement of the
Guarantors hereunder, the agreements in this subsection shall survive the
termination of this Guaranty and the payment of all amounts payable
hereunder.
19. Severability. If any provision of this Guaranty is determined to be
------------
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
20. Governing Law. This Guaranty and the rights and obligations of the
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parties hereto shall be construed in accordance with and governed by the laws of
the State of North Carolina.
21. Waiver of Jury Trial. To the extent permitted by law, each of the
--------------------
Administrative Agent and the Guarantors hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim arising out of or
relating to this Guaranty or the transactions contemplated hereby.
22. Consent to Jurisdiction.
-----------------------
(a) Any legal action or proceeding with respect to this Guaranty may be
brought in the courts of the State of North Carolina in Mecklenburg County, or
of the United States for the Western District of North Carolina, and, by
execution and delivery of this Guaranty, each of the Guarantors hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the nonexclusive jurisdiction of such courts. Each of the
Guarantors further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the
9
mailing of copies thereof by registered or certified mail, postage prepaid, to
it at the address set out for notices pursuant to Section 17, such service to
become effective three (3) days after such mailing. Nothing herein shall affect
the right of the Administrative Agent or any Lender to serve process in any
other manner permitted by law or to commence legal proceedings or to otherwise
proceed against any Guarantor in any other jurisdiction.
(b) Each of the Guarantors hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Guaranty in the courts referred to
in Section 22(a). Each of the parties hereto hereby further irrevocably waives
and agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum.
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 17. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
23. Headings. The headings in this instrument are for convenience of
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reference only and shall not limit or otherwise affect the meaning of any
provisions hereof.
24. Counterparts. This Guaranty may be executed in any number of
------------
counterparts and by different parties hereto on separate counterparts, each
constituting an original, but all together one and the same instrument.
25. Rights of the Required Lenders. All rights of the Administrative Agent
------------------------------
hereunder, if not exercised by the Administrative Agent, may be exercised by the
Required Lenders.
26. Rights of Contribution. The Guarantors hereby agree, as among
----------------------
themselves, that if any Guarantor shall become an Excess Funding Guarantor (as
defined below), each other Guarantor shall, on demand of such Excess Funding
Guarantor (but subject to the next sentence hereof and to subsection (b) below),
pay to such Excess Funding Guarantor an amount equal to such Guarantor's Pro
Rata Share (as defined below and determined, for this purpose, without reference
to the properties, assets, liabilities and debts of such Excess Funding
Guarantor) of such Excess Payment (as defined below). The payment obligation of
any Guarantor to any Excess Funding Guarantor under this Section 26 shall be
subordinate and subject in right of payment to the prior payment in full of the
obligations of such Guarantor under the other provisions of this Section 26, and
such Excess Funding Guarantor shall not exercise any right or remedy with
respect to such excess until payment and satisfaction in full of all of such
obligations. For purposes hereof, (i) "Excess Funding Guarantor" shall mean, in
------------------------
respect of any obligations arising under the other provisions of this Section 26
(hereafter, the "Guaranteed Obligations"), a Guarantor that has paid an amount
----------------------
in excess of its Pro Rata Share of the Guaranteed Obligations; (ii) "Excess
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Payment" shall mean, in respect of any Guaranteed Obligations, the amount paid
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by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations; and (iii) "Pro Rata Share", for the purposes of this
--------------
Section 26, shall mean, for any Guarantor, the ratio (expressed as a percentage)
of (a) the amount by which the aggregate present fair saleable value of all of
its assets and properties exceeds the amount of all debts and liabilities of
such Guarantor (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the
10
obligations of such Guarantor hereunder) to (b) the amount by which the
aggregate present fair saleable value of all assets and other properties of the
Company and all of the Guarantors exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Company and the Guarantors
hereunder) of the Company and all of the Guarantors, all as of the Closing Date
(if any Guarantor becomes a party hereto subsequent to the Closing Date, then
for the purposes of this Section 26 such subsequent Guarantor shall be deemed to
have been a Guarantor as of the Closing Date and the information pertaining to,
and only pertaining to, such Guarantor as of the date such Guarantor became a
Guarantor shall be deemed true as of the Closing Date).
27. Additional Guarantors. At such time as any Domestic Subsidiary
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(whether now existing or hereinafter acquired) of a Guarantor becomes a Credit
Party under the Xxxxxxxx'x Credit Agreement, such Guarantor shall provide the
Administrative Agent with written notice thereof setting forth information in
reasonable detail describing all of the assets of such Domestic Subsidiary and
shall (i)(a) cause such Domestic Subsidiary to execute a Joinder Agreement in
substantially the same form as Schedule 1, (b) cause 100% of the issued and
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outstanding Capital Stock of such Person to be pledged in support of the
Guaranteed Obligations pursuant to an appropriate pledge agreement(s) in form
acceptable to the Administrative Agent and (c) cause such Domestic Subsidiary to
pledge its accounts and inventory in support of the Guaranteed Obligations
pursuant to an appropriate security agreement(s) in form acceptable to the
Administrative Agent, and (ii) deliver such other documentation as the
Administrative Agent may reasonably request in connection with the foregoing,
including, without limitation, appropriate UCC-1 financing statements, certified
resolutions and other organizational and authorizing documents of such Domestic
Subsidiary, favorable opinions of counsel to such Domestic Subsidiary (which
shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above and the perfection of the
liens granted thereunder), all in form, content and scope reasonably
satisfactory to the Administrative Agent.
28. Standstill Provision.
--------------------
At the request of Xxxxxxxx'x and subject to the conditions hereafter set
forth, the Lenders have agreed not to accelerate payment of the Obligations
under the Crescent Credit Agreement or request payment under this Guaranty or
otherwise exercise the remedy of foreclosure under the Crescent Credit Agreement
or the other Credit Documents (including, without limitation, this Guaranty)
relating thereto for a period of up to thirty (30) days (the "Standstill
----------
Period") following Xxxxxxxx'x receipt of written notice from the Administrative
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Agent that an Event of Default (other than under Section 9.1(f) of the Crescent
Credit Agreement on account of a Bankruptcy Event) has occurred (and including
therewith a description of the Event of Default which then exists), provided
that at all times during such Standstill Period:
(i) the aggregate outstanding principal amount of Combined Credit
Obligations shall not exceed the Combined Borrowing Base; and
(ii) (A) the Combined Leverage Ratio is then at least 0.5:1.0 less than
the maximum Combined Leverage Ratio then permitted under Section 7.11(a) of
the Crescent Credit Agreement (e.g., if the maximum Combined Leverage Ratio
permitted under Section 7.11(a) is then 4.0:1.0, then a ratio of 3.5:1.0 or
less, or if the maximum
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Combined Leverage Ratio permitted under Section 7.11(a) of the Crescent
Credit Agreement is then 3.5:1.0, then a ratio of 3.0:1.0 or less), and (B)
the Consolidated Leverage Ratio for the Xxxxxxxx'x Consolidated Group is
then at least 0.5:1.0 less than the maximum Consolidated Leverage Ratio
then permitted under Section 7.11(a) of the Xxxxxxxx'x Credit Agreement
(e.g., if the maximum Consolidated Leverage Ratio permitted under Section
7.11(a) thereof is then 3.0:1.0, then a ratio of 2.5:1.0 or less).
provided that notwithstanding anything contained in this Section 28 to the
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contrary, (i) the Lenders shall be under no obligation to make additional
Extensions of Credit under the Crescent Credit Agreement during any such
Standstill Period and (ii) during any Standstill Period, the Obligations under
the Crescent Credit Agreement shall bear interest at the rate provided in
Section 3.1 of the Crescent Credit Agreement. As used herein,
"Combined Credit Obligations" shall mean, at any time, the sum of:
---------------------------
(i) the aggregate outstanding principal amount of Obligations
under the Crescent Credit Agreement, plus (ii) the aggregate principal
amount of loans and obligations (including letter of credit obligations
and the like) under the Xxxxxxxx'x Credit Agreement.
"Combined Borrowing Base" shall mean, at any time, an amount equal to the
-----------------------
sum of :
(i) an amount equal to fifty percent (50%) of the sum of (A)
Eligible Receivables under the Crescent Credit Agreement, plus (B)
Eligible Receivables under the Xxxxxxxx'x Credit Agreement; plus
(ii) an amount equal to fifty percent (50%) of the sum of (A)
Eligible Inventory under the Crescent Credit Agreement, plus (B)
Eligible Inventory under the Xxxxxxxx'x Credit Agreement.
29. Right to Purchase Obligations under the Crescent Credit Agreement.
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Xxxxxxxx'x shall have the right, at any time after the Commitments have been
terminated under the Crescent Credit Agreement, to purchase the Guaranteed
Obligations in whole, but not in part, in lieu of payment under this Guaranty.
Any such purchase of the Guaranteed Obligations (including accrued interest and
fees) hereunder shall be at par, shall be exercised by notice to the
Administrative Agent and to Crescent of an intent to exercise the right of
purchase under this Section and shall be without recourse or representation or
warranty of any kind. The Lenders and the Administrative Agent will cooperate
with, and assist, Xxxxxxxx'x (at the sole expense of Xxxxxxxx'x) in
accomplishing a purchase under this Section, including execution of an
Assignment Agreement in substantially the form attached to the Crescent Credit
Agreement (with appropriate modification to reflect the existence of an Event of
Default and termination of Commitments thereunder). Exercise of the right to
purchase under this provision shall be settled within five (5) Business Days of
notice by Xxxxxxxx'x of its intent to exercise the right to purchase hereunder
and shall be made by payment to the Administrative Agent of the par value of the
Guaranteed Obligations (including accrued interest and fees) in cash and in
immediately available funds, together with the payment in full of any reasonable
expenses actually incurred by the Administrative Agent in connection with such
purchase and assignment. Unless otherwise agreed by the Required Lenders,
failure by Xxxxxxxx'x to exercise its right to so purchase, including payment of
the purchase price, within the requisite time shall result in the reinstatement
of the
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right by the Administrative Agent and the Lenders under the Crescent Credit
Agreement to make demand for payment under this Guaranty. Notwithstanding
provisions to the contrary contained in the Crescent Credit Agreement, the
Administrative Agent may resign, and shall thereupon be released from its duties
and obligations thereunder, at any time after exercise of this right of purchase
by Xxxxxxxx'x hereunder. Xxxxxxxx'x shall, upon exercise of the purchase rights
hereunder, succeed to the collateral interests under the Crescent Credit
Agreement as assignee of the Lenders, except that as to the collateral interests
granted by Xxxxxxxx'x and its Subsidiaries to secure this Guaranty, such
collateral interests shall be junior and subordinated to the collateral
interests of the holders of the other Secured Obligations secured thereby (as
defined in the Xxxxxxxx'x Pledge Agreement and the Xxxxxxxx'x Security
Agreement). The Administrative Agent and the Lenders will cooperate with, and
assist, Xxxxxxxx'x (at the sole expense of Xxxxxxxx'x) in reflecting assignment
of the collateral interests associated with the interests purchased in an
exercise of purchase rights hereunder, including delivery of original stock
certificates and associated stock powers pledged to secure such interests,
delivery of UCC financing statement assignments, and delivery of any transfer
documents and or pleadings in any bankruptcy proceeding of the Borrower or any
Crescent Guarantor (including the assignment of any proof of claim) to evidence
the transfer of the Lenders' claims against such Person to Xxxxxxxx'x.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned Guarantor has caused this Guaranty to
be duly executed and delivered as of the day and year first above written.
GUARANTORS: XXXXXXXX'X INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
Chief Financial Officer
Treasurer and Secretary
ACCEPTED:
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BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/
Name: --------------------
Title:
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