Exhibit 10.68
GUARANTY
This GUARANTY is dated as of January 31, 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 Citicorp North America, Inc.,
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
any Selected Revolving Lender, and for the benefit of the other Beneficiaries
(as hereinafter defined).
PRELIMINARY STATEMENTS
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X. Xxxx Xxxxxxx & Co., a Delaware corporation (the "Borrower"), has entered
into that certain Credit Agreement dated as of January 31, 2003 by and among the
Borrower, the Lenders from time to time party thereto, the several financial
institutions party thereto as L/C Issuers, the several financial institutions
party thereto as Joint Lead Arrangers and Joint Book Managers, the financial
institutions party thereto as Co-Syndication Agents, the financial institution
party thereto as Documentation Agent and Citicorp North America, Inc., as Swing
Line Lender and 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. The Borrower, Levi Xxxxxxx International Group Finance Coordination
Services Comm V.A., a Belgian corporation, or any successor thereto ("LSIFCS")
and certain Material Domestic Subsidiaries of the Borrower may from time to time
enter, or may from time to time have entered, into one or more Selected
Revolving Lender Swap Contracts in accordance with the terms of the Credit
Agreement, and it is desired that the obligations of the Borrower, LSIFCS and
such Material Domestic Subsidiaries under the Selected Revolving Lender Swap
Contracts, including the obligation of the Borrower, LSIFCS and such Material
Domestic Subsidiaries to make payments thereunder in the event of early
termination or close out thereof, together with all obligations of the Borrower
under the Credit Agreement and the other Loan Documents, be guarantied hereunder
until the payment in full of all Obligations under the Credit Agreement and the
other Loan Documents, the cancellation or expiration of all Letters of Credit
and the termination of the Commitments.
C. The Borrower and certain of its Subsidiaries may from time to time
enter, or may from time to time have entered, into one or more arrangements for
Selected Revolving Lender Cash Management Services in accordance with the terms
of the Credit Agreement, and it is desired that the obligations of the Borrower
and such Subsidiaries arising in connection with such Selected Revolving Lender
Cash Management Services, together with all obligations of the Borrower under
the Credit Agreement and the other Loan Documents, be guarantied hereunder until
the payment in full of all Obligations under the Credit Agreement and the other
Loan Documents, the cancellation or expiration of all Letters of Credit and the
termination of the Commitments.
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D. The Guarantied Party, the Lenders and each Selected Revolving Lender for
which the Guarantied Party has received the notice required by Section 17(c)
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hereof are sometimes referred to herein as the "Beneficiaries."
E. A portion of the proceeds of the Credit Extensions 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).
F. It is a condition precedent to the initial extensions of credit by the
Lenders under the Credit Agreement that the Borrower's obligations thereunder be
guarantied by the Guarantors.
G. 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 and to induce the Selected Revolving Lenders to enter into the
Selected Revolving Lender Swap Contracts and to provide the Selected Revolving
Lender Cash Management Services, the Guarantors hereby agree as follows:
1. Guaranty. (a) In order to induce (i) the Lenders to extend credit to the
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Borrower pursuant to the Credit Agreement, (ii) the entry by the Selected
Revolving Lenders into the Selected Revolving Lender Swap Contracts and (iii)
the provision by the Selected Revolving Lenders of the Selected Revolving Lender
Cash Management Services, 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. (S) 362(a)). The term "Guarantied Obligations" is used herein in
its most comprehensive sense and includes any and all Obligations of the
Borrower, any and all obligations of the Borrower, LSIFCS and each Material
Domestic Subsidiary of the Borrower under the Selected Revolving Lender Swap
Contracts and any and all obligations of the Borrower and each of its
Subsidiaries in connection with the Selected Revolving Lender Cash Management
Services, 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, the Selected Revolving
Lender Swap Contracts, the Selected Revolving Lender Cash Management Services,
this Guaranty and the other Loan Documents, including those arising under
successive borrowing transactions under the Credit Agreement which shall either
continue the Obligations of the Borrower or from time to time renew them after
they have been satisfied; provided, however, that obligations arising under or
in connection with the Selected Revolving Lender Swap Contracts and the Selected
Revolving Lender Cash Management Services shall be Guarantied Obligations only
until the payment in full of all Obligations under the Credit Agreement and the
other Loan Documents, the cancellation or expiration of all Letters of Credit
and the termination of the Commitments.
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Each Guarantor acknowledges that a portion of the Credit Extensions may be
advanced to it, that Letters of Credit may be issued for the benefit of its
business 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, LSIFCS or any of the other Subsidiaries of the
Borrower (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, LSIFCS or any
of the other Subsidiaries of the Borrower 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
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Borrower, LSIFCS or any of the other Subsidiaries of the Borrower 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
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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)
of any rights to subrogation, reimbursement, indemnification or contribution of
such Guarantor pursuant to applicable law or pursuant to the terms of any
agreement.
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(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
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1(c), together desire to allocate among themselves (collectively, the
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"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
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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, LSIFCS, any
of the other Subsidiaries of the Borrower, or any Guarantor and any Beneficiary
with respect to the existence of such event; (c) the obligations of each
Guarantor hereunder are independent of each of the obligations of the Borrower
under the Loan Documents, of the Borrower, LSIFCS or any Material Domestic
Subsidiary of the Borrower under the Selected Revolving Lender Swap Contracts,
of the Borrower or any of its Subsidiaries in connection with any Selected
Revolving Lender Cash Management Services and a separate action or actions may
be brought and prosecuted against each Guarantor whether or not any action is
brought against the Borrower, LSIFCS, any of the other Subsidiaries of the
Borrower or any of such other Guarantors and whether or not the Borrower,
LSIFCS, any of the other Subsidiaries of the Borrower 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,
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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
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apply any security now or hereafter held by or for the benefit of any
Beneficiary in respect of this Guaranty or the 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, the Selected Revolving Lender Swap
Contracts or the Selected Revolving Lender Cash Management Services 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, the Selected Revolving Lender Swap Contracts or
the Selected Revolving Lender Cash Management Services.
4. No Discharge. This Guaranty and the obligations of the Guarantors
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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, the Selected Revolving Lender Swap
Contracts, any Selected Revolving Lender Cash Management Services 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, LSIFCS, 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:
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(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 or LSIFCS, 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 or
LSIFCS, 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, LSIFCS, any
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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, LSIFCS, 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 Obligations or any
agreement or instrument relating thereto or by reason of the cessation of the
liability of the Borrower, LSIFCS, 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 default, close out or early termination under any Selected
Revolving Lender Swap Contracts or any agreement or instrument related thereto,
notices in connection with any event relating to any Selected Revolving Lender
Cash Management Services, 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, LSIFCS, 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
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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, LSIFCS, any other Material Domestic Subsidiary party to any Selected
Revolving Lender Swap Contracts and any other Subsidiary of the Borrower party
to any arrangement relating to Selected Revolving Lender Cash Management
Services 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
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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 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 internal laws of the State of New York, without
regard to conflicts of laws principles. 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
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Other Obligations. Each Guarantor waives any claim, right or remedy, direct or
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indirect, that such Guarantor now has or may hereafter have against the
Borrower, LSIFCS, 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, LSIFCS,
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, LSIFCS, 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, the Commitments shall have terminated and all Letters of Credit shall
have expired or been cancelled, 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, LSIFCS, 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, LSIFCS, 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
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or security, and to any right the Guarantied Party or the other Beneficiaries
may have against such other guarantor.
Any indebtedness of the Borrower, LSIFCS, 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, LSIFCS, 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.
7. Expenses. The Guarantors jointly and severally agree to pay or
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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, LSIFCS, any other Guarantor or any
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other Subsidiary of the Borrower. No Beneficiary shall have any obligation, and
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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, LSIFCS, 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, LSIFCS, any other Guarantor or any
other Subsidiary of the Borrower. Each Guarantor has adequate means to obtain
information from the Borrower, LSIFCS, any other Guarantor or any other
Subsidiary of the Borrower on a continuing basis concerning the financial
condition of the Borrower, LSIFCS, any other Guarantor or any other Subsidiary
of the Borrower and its ability to perform its obligations under the Loan
Documents and the Selected Revolving Lender Swap Contracts, and in connection
with any Selected Revolving Lender Cash Management Services, as the case may be,
and each Guarantor assumes the responsibility for being and keeping informed of
the financial condition of the Borrower, LSIFCS, 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
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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
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Guarantied Obligations shall remain unpaid, any Letter of Credit shall be
outstanding and any Lender shall have any Commitment, 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 and any Selected Revolving Lender Swap
Contracts state that the Borrower is to cause a Guarantor and such Subsidiaries
to perform or observe.
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11. Set Off. In addition to any other rights any Beneficiary may have under
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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 Upon Sale of Guarantor. If all of the stock of a
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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 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
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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, LSIFCS 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 Selected Revolving Lender Swap Contracts or
any agreement between one or more Guarantors and one or more Beneficiaries or
between the Borrower, LSIFCS, any Material Domestic Subsidiary party to any
Selected Revolving Lender Swap Contracts or any other 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
9 Guaranty
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
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
10 Guaranty
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 Material 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 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.
11 Guaranty
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
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.
(c) The Guarantied Party shall not be deemed to have any duty
whatsoever with respect to any Selected Revolving Lender until it shall have
received written notice in form and substance satisfactory to the Guarantied
Party from the Borrower, a Guarantor or the Selected Revolving Lender as to the
existence and terms of the applicable Selected Revolving Lender Swap Contract or
Selected Revolving Lender Cash Management Services.
[The remainder of this page has been intentionally left blank.]
12 Guaranty
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.
BATTERY STREET ENTERPRISES, INC.
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
S-1 Guaranty
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
S-2 Guaranty
LEVI'S ONLY STORES, 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
S-3 Guaranty
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
CITICORP NORTH AMERICA, INC.,
as Administrative Agent as Guarantied Party
By:__________________________________
Name: Xxxxxx Xxxx
Title: Vice President
S-4 Guaranty
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 January 31, 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 Citicorp North America, Inc., 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: ______________________________
______________________________
______________________________
X-0 Xxxxxxxx
