EXHIBIT 10.24
[EXECUTION]
GUARANTEE
March 22, 2002
Congress Financial Corporation (Florida)
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Gentlemen:
L.S. Holding, Inc. ("Holding"), L.S. Wholesale, Inc. ("Wholesale") and L.S.
Holding (Florida), Inc. ("Florida", and together with Holding and Wholesale,
each individually a "Borrower" and collectively, "Borrowers") have entered into
certain financing arrangements with Congress Financial Corporation (Florida)
("Lender") pursuant to which Lender may make loans and advances and provide
other financial accommodations to Borrowers as set forth in the Loan and
Security Agreement, dated of even date herewith by and among Borrowers, the
undersigned ("Guarantor") and Lender (as the same now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced, the
"Loan Agreement"), and other agreements, documents and instruments referred to
therein or at any time executed and/or delivered in connection therewith or
related thereto, including, but not limited to, this Guarantee (all of the
foregoing, together with the Loan Agreement, as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, being collectively referred to herein as the "Financing Agreements").
Due to the close business and financial relationships among Borrowers and
Guarantor, in consideration of the benefits which will accrue to Guarantor and
as an inducement for and in consideration of Lender making loans and advances
and providing other financial accommodations to Borrowers pursuant to the Loan
Agreement and the other Financing Agreements, Guarantor hereby agrees in favor
of Xxxxxx as follows:
1. GUARANTEE.
(a) Guarantor absolutely and unconditionally guarantees and agrees to
be liable for the full and indefeasible payment and performance when due of the
following (all of which are collectively referred to herein as the "Guaranteed
Obligations"): (i) all obligations, liabilities and indebtedness of any kind,
nature and description of each Borrower to Lender and/or its affiliates,
including principal, interest, charges, fees, costs and expenses, however
evidenced, whether as principal, surety, endorser, guarantor or otherwise,
whether arising
under the Loan Agreement, the other Financing Agreements or otherwise, whether
now existing or hereafter arising, whether arising before, during or after the
initial or any renewal term of the Loan Agreement or after the commencement of
any case with respect to any Borrower under the United States Bankruptcy Code or
any similar statute or under any insolvency, reorganization, receivership,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction now or hereafter in effect, whether at law or in equity (including,
without limitation, the payment of interest and other amounts, which would
accrue and become due but for the commencement of such case, whether or not such
amounts are allowed or allowable in whole or in part in any such case and
including loans, interest, fees, charges and expenses related thereto and all
other obligations of each Borrower or its successors to Lender arising after the
commencement of such case), whether direct or indirect, absolute or contingent,
joint or several, due or not due, primary or secondary, liquidated or
unliquidated, secured or unsecured, and however acquired by Lender and (ii) all
expenses (including, without limitation, reasonable attorneys' fees and legal
expenses) incurred by Lender in connection with the preparation, execution,
delivery, recording, administration, collection, liquidation, enforcement and
defense of any Borrower's obligations, liabilities and indebtedness as aforesaid
to Lender, the rights of Lender in any collateral or under this Guarantee and
all other Financing Agreements or in any way involving claims by or against
Lender directly or indirectly arising out of or related to the relationships
between any Borrower, Guarantor or any other Obligor (as hereinafter defined)
and Lender, whether such expenses are incurred before, during or after the
initial or any renewal term of the Loan Agreement and the other Financing
Agreements or after the commencement of any case with respect to any Borrower or
Guarantor under the United States Bankruptcy Code or any similar statute or
under any insolvency, reorganization, receivership, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction now or hereafter
in effect, whether at law or in equity.
(b) This Guarantee is a guaranty of payment and not of collection.
Xxxxxxxxx agrees that Xxxxxx need not attempt to collect any Guaranteed
Obligations from any Borrower, Guarantor or any other Obligor or to realize upon
any collateral, but may require Guarantor to make immediate payment of all of
the Guaranteed Obligations to Lender when due, whether by maturity, acceleration
or otherwise, or at any time thereafter. Lender may apply any amounts received
in respect of the Guaranteed Obligations to any of the Guaranteed Obligations,
in whole or in part (including reasonable attorneys' fees and legal expenses
incurred by Lender with respect thereto or otherwise chargeable to Borrowers or
Guarantor) and in such order as Lender may elect.
(c) Payment by Guarantor shall be made to Lender at the office of
Lender from time to time on demand as Guaranteed Obligations become due.
Guarantor shall make all payments to Lender on the Guaranteed Obligations free
and clear of, and without deduction or withholding for or on account of, any
setoff, counterclaim, defense, duties, taxes, levies, imposts, fees, deductions,
withholding, restrictions or conditions of any kind. One or more
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successive or concurrent actions may be brought hereon against Guarantor either
in the same action in which any Borrower or any other Obligor is sued or in
separate actions. In the event any claim or action, or action on any judgment,
based on this Guarantee is brought against Guarantor, Guarantor agrees not to
deduct, set-off, or seek any counterclaim for or recoup any amounts which are or
may be owed by Xxxxxx to Guarantor hereunder.
2. WAIVERS AND CONSENTS.
(a) Notice of acceptance of this Guarantee, the making of loans and
advances and providing other financial accommodations to any Borrower and
presentment, demand, protest, notice of protest, notice of nonpayment or default
and all other notices to which any Borrower or Guarantor is entitled are hereby
waived by Guarantor. Guarantor also waives notice of and hereby consents to, (i)
any amendment, modification, supplement, extension, renewal, or restatement of
the Loan Agreement and any of the other Financing Agreements, including, without
limitation, extensions of time of payment of or increase or decrease in the
amount of any of the Guaranteed Obligations, the interest rate, fees, other
charges, or any collateral, and the guarantee made herein shall apply to the
Loan Agreement and the other Financing Agreements and the Guaranteed Obligations
as so amended, modified, supplemented, renewed, restated or extended, increased
or decreased, (ii) the taking, exchange, surrender and releasing of collateral
or guarantees now or at any time held by or available to Lender for the
obligations of any Borrower or any other party at any time liable on or in
respect of the Guaranteed Obligations or who is the owner of any property which
is security for the Guaranteed Obligations (individually, an "Obligor" and
collectively, the "Obligors"), (iii) the exercise of, or refraining from the
exercise of any rights against any Borrower or any other Obligor or any
collateral, (iv) the settlement, compromise or release of, or the waiver of any
default with respect to, any of the Guaranteed Obligations and (v) any financing
by Lender of any Borrower under Section 364 of the United States Bankruptcy Code
or consent to the use of cash collateral by Lender under Section 363 of the
United States Bankruptcy Code. Guarantor agrees that the amount of the
Guaranteed Obligations shall not be diminished and the liability of Guarantor
hereunder shall not be otherwise impaired or affected by any of the foregoing.
(b) No invalidity, irregularity or unenforceability of all or any part
of the Guaranteed Obligations shall affect, impair or be a defense to this
Guarantee, nor shall any other circumstance which might otherwise constitute a
defense available to or legal or equitable discharge of any Borrower in respect
of any of the Guaranteed Obligations, or Guarantor in respect of this Guarantee,
affect, impair or be a defense to this Guarantee (other than the defense of
final indefeasible payment of the Guaranteed Obligations). Without limitation of
the foregoing, the liability of Guarantor hereunder shall not be discharged or
impaired in any respect by reason of any failure by Lender to perfect or
continue perfection of any lien or security interest in any collateral or any
delay by Lender in perfecting any such lien or security interest. As to
interest, fees and expenses, whether arising before or after the
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commencement of any case with respect to any Borrower under the United States
Bankruptcy Code or any similar statute, Guarantor shall be liable therefor, even
if such Borrower's liability for such amounts does not, or ceases to, exist by
operation of law. Guarantor acknowledges that Xxxxxx has not made any
representations to Guarantor with respect to any Borrower, any other Obligor or
otherwise in connection with the execution and delivery by Guarantor of this
Guarantee and Guarantor is not in any respect relying upon Lender or any
statements by Lender in connection with this Guarantee.
(c) Guarantor hereby irrevocably and unconditionally waives and
relinquishes all statutory, contractual, common law, equitable and all other
claims against any Borrower, any collateral for the Guaranteed Obligations or
other assets of any Borrower or any other Obligor, for subrogation,
reimbursement, exoneration, contribution, indemnification, setoff or other
recourse in respect to sums paid or payable to Lender by Guarantor hereunder and
Guarantor hereby further irrevocably and unconditionally waives and relinquishes
any and all other benefits which Guarantor might otherwise directly or
indirectly receive or be entitled to receive by reason of any amounts paid by or
collected or due from Guarantor, any Borrower or any other Obligor upon the
Guaranteed Obligations or realized from their property until all of the
Guaranteed Obligations have been paid in full and the Financing Agreements have
been terminated and are no longer in full force and effect.
3. SUBORDINATION. Payment of all amounts now or hereafter owed to
Guarantor by any Borrower or any other Obligor is hereby subordinated in right
of payment to the indefeasible payment in full to Lender of the Guaranteed
Obligations and all such amounts and any security and guarantees therefor are
hereby assigned to Lender as security for the Guaranteed Obligations.
4. ACCELERATION. Notwithstanding anything to the contrary contained
herein or any of the terms of any of the other Financing Agreements, the
liability of Guarantor for the entire Guaranteed Obligations shall mature and
become immediately due and payable, even if the liability of any Borrower or any
other Obligor therefor does not, upon the occurrence of any act, condition or
event which constitutes an Event of Default as such term is defined in the Loan
Agreement.
5. ACCOUNT STATED. The books and records of Lender showing the account
between Lender and any Borrower shall be admissible in evidence in any action or
proceeding against or involving Guarantor as PRIMA FACIE proof of the items
therein set forth, and the monthly statements of Lender rendered to any
Borrower, to the extent to which no written objection is made within thirty (30)
days from the date of sending thereof to such Borrower, shall be deemed
conclusively correct and constitute an account stated between Xxxxxx and such
Borrower and be binding on Guarantor.
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6. TERMINATION. This Guarantee is continuing, unlimited, absolute and
unconditional. All Guaranteed Obligations shall be conclusively presumed to have
been created in reliance on this Guarantee. Guarantor shall continue to be
liable hereunder until one of Xxxxxx's officers actually receives a written
termination notice from Guarantor sent to Lender at its address set forth above
by certified mail, return receipt requested and thereafter as set forth below.
Revocation or termination hereof by Guarantor shall not affect, in any manner,
the rights of Lender or any obligations or duties of Guarantor under this
Guarantee with respect to (a) Guaranteed Obligations which have been created,
contracted, assumed or incurred prior to the receipt by Lender of such written
notice of revocation or termination as provided herein, including, without
limitation, (i) all amendments, extensions, renewals and modifications of such
Guaranteed Obligations (whether or not evidenced by new or additional
agreements, documents or instruments executed on or after such notice of
revocation or termination), (ii) all interest, fees and similar charges accruing
or due on and after revocation or termination, and (iii) all reasonable
attorneys' fees and legal expenses, costs and other expenses paid or incurred on
or after such notice of revocation or termination in attempting to collect or
enforce any of the Guaranteed Obligations against any Borrower, Guarantor or any
other Obligor (whether or not suit be brought), or (b) Guaranteed Obligations
which have been created, contracted, assumed or incurred after the receipt by
Lender of such written notice of revocation or termination as provided herein
pursuant to any contract entered into by Lender prior to receipt of such notice.
The sole effect of such revocation or termination by Guarantor shall be to
exclude from this Guarantee the liability of Guarantor for those Guaranteed
Obligations arising after the date of receipt by Xxxxxx of such written notice
which are unrelated to Guaranteed Obligations arising or transactions entered
into prior to such date. Without limiting the foregoing, this Guarantee may not
be terminated and shall continue so long as the Loan Agreement shall be in
effect (whether during its original term or any renewal, substitution or
extension thereof).
7. REINSTATEMENT. If after receipt of any payment of, or proceeds of
collateral applied to the payment of, any of the Guaranteed Obligations, Lender
is required to surrender or return such payment or proceeds to any Person for
any reason, then the Guaranteed Obligations intended to be satisfied by such
payment or proceeds shall be reinstated and continue and this Guarantee shall
continue in full force and effect as if such payment or proceeds had not been
received by Lender. Guarantor shall be liable to pay to Lender, and does
indemnify and hold Lender harmless for the amount of any payments or proceeds
surrendered or returned. This Section 7 shall remain effective notwithstanding
any contrary action which may be taken by Xxxxxx in reliance upon such payment
or proceeds. This Section 7 shall survive the termination or revocation of this
Guarantee.
8. AMENDMENTS AND WAIVERS. Neither this Guarantee nor any provision
hereof shall be amended, modified, waived or discharged orally or by course of
conduct, but only by a written agreement signed by an authorized officer of
Lender. Lender shall not by any act, delay, omission or otherwise be deemed to
have expressly or impliedly waived any of its
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rights, powers and/or remedies unless such waiver shall be in writing and signed
by an authorized officer of Lender. Any such waiver shall be enforceable only to
the extent specifically set forth therein. A waiver by Lender of any right,
power and/or remedy on any one occasion shall not be construed as a bar to or
waiver of any such right, power and/or remedy which Lender would otherwise have
on any future occasion, whether similar in kind or otherwise.
9. CORPORATE EXISTENCE, POWER AND AUTHORITY. Guarantor is a corporation
duly organized and in good standing under the laws of its state or other
jurisdiction of incorporation and is duly qualified as a foreign corporation and
in good standing in all states or other jurisdictions where the nature and
extent of the business transacted by it or the ownership of assets makes such
qualification necessary, except for those jurisdictions in which the failure to
so qualify would not have a material adverse effect on the financial condition,
results of operation or businesses of Guarantor or the rights of Lender
hereunder or under any of the other Financing Agreements. The execution,
delivery and performance of this Guarantee is within the corporate powers of
Guarantor, have been duly authorized and are not in contravention of law or the
terms of the certificates of incorporation, by-laws, or other organizational
documentation of Guarantor, or any indenture, agreement or undertaking to which
Guarantor is a party or by which Guarantor or its property are bound. This
Guarantee constitutes the legal, valid and binding obligation of Guarantor
enforceable in accordance with its terms.
10. GOVERNING LAW; CHOICE OF FORUM; SERVICE OF PROCESS; JURY TRIAL WAIVER.
(a) The validity, interpretation and enforcement of this Guarantee and
any dispute arising out of the relationship between Guarantor and Lender,
whether in contract, tort, equity or otherwise, shall be governed by the
internal laws of the State of Florida (without giving effect to principles of
conflicts of law).
(b) Guarantor hereby irrevocably consents and submits to the
non-exclusive jurisdiction of the Circuit Court of Miami-Dade County, Florida
and the United States District Court for the Southern District of Florida, as
Lender may elect, and waives any objection based on venue or FORUM NON
CONVENIENS with respect to any action instituted therein arising under this
Guarantee or any of the other Financing Agreements or in any way connected with
or related or incidental to the dealings of Guarantor and Lender in respect of
this Guarantee or any of the other Financing Agreements or the transactions
related hereto or thereto, in each case whether now existing or hereafter
arising and whether in contract, tort, equity or otherwise, and agrees that any
dispute arising out of the relationship among Guarantor or any Borrower and
Lender or the conduct of any such persons in connection with this Guarantee, the
other Financing Agreements or otherwise shall be heard only in the courts
described above (except that Lender shall have the right to bring any action or
proceeding against Guarantor or its property in the courts of any other
jurisdiction which Lender deems necessary or
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appropriate in order to realize on any collateral at any time granted by any
Borrower or Guarantor to Lender or to otherwise enforce its rights against
Guarantor or its property).
(c) Guarantor hereby waives personal service of any and all process
upon it and consents that all such service of process may be made by certified
mail (return receipt requested) directed to its address set forth on the
signature pages hereof and service so made shall be deemed to be completed five
(5) days after the same shall have been so deposited in the U.S. mails, or, at
Lender's option, by service upon Guarantor in any other manner provided under
the rules of any such courts. Within thirty (30) days after such service,
Guarantor shall appear in answer to such process, failing which Guarantor shall
be deemed in default and judgment may be entered by Lender against Guarantor for
the amount of the claim and other relief requested.
(d) GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS GUARANTEE OR ANY OF THE
OTHER FINANCING AGREEMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF GUARANTOR AND LENDER IN RESPECT OF THIS GUARANTEE
OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN
CONTRACT, TORT, EQUITY OR OTHERWISE. GUARANTOR 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 GUARANTOR OR LENDER MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF XXXXXXXXX AND XXXXXX TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
(e) Lender shall not have any liability to Guarantor (whether in tort,
contract, equity or otherwise) for losses suffered by Guarantor in connection
with, arising out of, or in any way related to the transactions or relationships
contemplated by this Guarantee, or any act, omission or event occurring in
connection herewith, unless it is determined by a final and non-appealable
judgment or court order binding on Lender that the losses were the result of
acts or omissions constituting gross negligence or willful misconduct. In any
such litigation, Xxxxxx shall be entitled to the benefit of the rebuttable
presumption that it acted in good faith and with the exercise of ordinary care
in the performance by it of the terms of the Loan Agreement and the other
Financing Agreements.
11. NOTICES. All notices, requests and demands hereunder shall be in
writing and (a) made to Lender at its address set forth above and to Guarantor
at its chief executive office set forth below, or to such other address as
either party may designate by written notice to the other in accordance with
this provision, and (b) deemed to have been given or made: if
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delivered in person, immediately upon delivery; if by telex, telegram or
facsimile transmission, immediately upon sending and upon confirmation of
receipt; if by nationally recognized overnight courier service with instructions
to deliver the next business day, two (2) business days after sending; and if by
certified mail, return receipt requested, five (5) days after mailing.
12. PARTIAL INVALIDITY. If any provision of this Guarantee is held to be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Guarantee as a whole, but this Guarantee shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.
13. ENTIRE AGREEMENT. This Guarantee represents the entire agreement and
understanding of this parties concerning the subject matter hereof, and
supersedes all other prior agreements, understandings, negotiations and
discussions, representations, warranties, commitments, proposals, offers and
contracts concerning the subject matter hereof, whether oral or written.
14. SUCCESSORS AND ASSIGNS. This Guarantee shall be binding upon Guarantor
and its successors and assigns and shall inure to the benefit of Lender and its
successors, endorsees, transferees and assigns. The liquidation, dissolution or
termination of Guarantor shall not terminate this Guarantee as to such entity or
as to Guarantor.
15. CONSTRUCTION. All references to the term "Guarantor" wherever used
herein shall mean Guarantor and its successors and assigns (including, without
limitation, any receiver, trustee or custodian for Guarantor or any of its
assets or Guarantor in its capacity as debtor or debtor-in-possession under the
United States Bankruptcy Code). All references to the term "Lender" wherever
used herein shall mean Lender and its successors and assigns and all references
to the term "Borrowers" wherever used herein shall mean each and all of
Borrowers and their respective successors and assigns (including, without
limitation, any receiver, trustee or custodian for any Borrower or any of their
assets or any Borrower in its capacity as debtor or debtor-in-possession under
the United States Bankruptcy Code). All references to the term "Person" or
"person" wherever used herein shall mean any individual, sole proprietorship,
partnership, corporation (including, without limitation, any corporation which
elects subchapter S status under the Internal Revenue Code of 1986, as amended),
limited liability company, limited liability partnership, business trust,
unincorporated association, joint stock corporation, trust, joint venture or
other entity or any government or any agency or instrumentality or political
subdivision thereof. All references to the plural shall also mean the singular
and to the singular shall also mean the plural.
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IN WITNESS WHEREOF, Xxxxxxxxx has executed and delivered this Guarantee as
of the day and year first above written.
LITTLE SWITZERLAND, INC.
By:
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Title: Chief Financial Officer
CHIEF EXECUTIVE OFFICE:
161-B Crown Bay
St. Xxxxxx, US Virgin Islands 00802
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