Exhibit 10.79
CORPORATE GUARANTY
Date:___________, 1999.
General Electric Capital Corporation
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Gentlemen:
To induce you to enter into the Loan Agreement dated__________ ___, 1999,
and any and all Schedules and Annexes thereto, with TARRANT APPAREL GROUP
("Customer"), and to make the loan in the original principal amount of US
$12,500,000.00 to the Customer the repayment of which is evidenced by the
Promissory Note dated ________ ___, 1999, in the original principal amount of
$12,500,000.00 from the Customer to you (collectively "Documents" and each a
"Document"), in terms of Articles 2794, 2795, 2798, 2800 and other applicable
Articles of the Civil Code for the Federal District (the "Civil Code") and the
corresponding provisions of the Civil Codes for the various States of the
Republic of Mexico (collectively the "Codes"), the undersigned, for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, does hereby guarantee to you, your successors and assigns, and
constitutes itself as solidary obligee for the due regular and punctual payment
of any sum or sums of money which the Customer may owe to you now or at any time
hereafter, evidenced by the Documents or any of them, and whether it represents
principal, interest, penalty interest for late payment, indemnities, or original
balance or accelerated balance, a balance reduced by partial payment, any
deficiency on amounts paid by the Customer, or any other type of sums of any
kind whatsoever that the Customer may owe to you under the Documents, your
successors and assigns, the due, regular and punctual performance of any other
duty or obligation of any kind or character whatsoever that the Customer may owe
to you now or at any time hereafter (all such payments and performance
obligations being collectively referred to as "Obligations"). The undersigned
does hereby further guarantee to pay upon demand all losses, costs, attorney's
fees and expenses which may be suffered by you by reason of Customer's default
or default of the undersigned.
For the purposes of this Guaranty, the undersigned hereby represents and
warrants to you that:
a) The undersigned is a commercial company duly organized, incorporated
and authorized in the Republic of Mexico, as evidenced in public deed
number 3,303 dated April 16th 1998, granted before Notary Public
number 111 for the City of Monterrey, State of Nuevo Xxxx, Xx. Xxxx
Xxxxxx Xxxx Xxxxxxxx, and registered with the Public Registry of
Commerce of the State of Puebla under Commercial File number 181,
"xxxxx" 14, book 1, "Tomo" 7, dated June 19th 1998.
b) That its representative herein, Xx. Xxxxxxx Xxxxx, has sufficient
faculties therefor, which faculties have not been revoked nor limited
in any manner whatsoever, as evidenced in public deed number 7,899
dated April 30th 99 granted before Notary Public 5 for the City of
Tehuacan, State of Puebla, Xx. Xxxxxx Xxxxx Xxxxx Xxxxx, and
registered with the Public Registry of Commerce of the State of Puebla
under Commercial File number 154, book 1, "Tomo" 7, dated May 6th
1999.
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c) That its corporate by-laws expressly allow it to guaranty third
party's obligations without limitation.
d) That the granting of this Guaranty will result in a direct or indirect
economic benefit to it.
This Guaranty is a guaranty of prompt payment and performance (and not
merely a guaranty of collection). Nothing herein shall require you to first seek
or exhaust any remedy against the Customer, its successors and assigns, or any
other person obligated with respect to the Obligations, or to first foreclose,
exhaust or otherwise proceed against any leased equipment, collateral or
security which may be given in connection with the Obligations. It is agreed
that you may, upon any Event of Default of the Customer, or at any time
thereafter, make demand upon the undersigned and receive payment and performance
of the Obligations, its successors or assigns, or any other person. Suit may be
brought and maintained against the undersigned, at your election, without
joinder of the Customer or any other person as parties thereto. The obligations
of each signatory to this Guaranty shall be joint and several.
For the purposes of the preceding paragraph, the undersigned hereby
expressly waives to the rights contained under Articles 2814, 2815, and 2823 of
the Civil Code and the corresponding provisions of the Codes.
The undersigned agrees that its obligations under this Guaranty shall be
primary, absolute, continuing and unconditional, irrespective of and unaffected
by any of the following actions or circumstances (regardless of any notice to or
consent of the undersigned): (a) the genuineness, validity, regularity and
enforceability of the Documents or any other documents; (b) any extension,
renewal, amendment, change, waiver or other modification of the Documents or any
other document; (c) the absence of, or delay in, any action to enforce the
Documents, this Guaranty or any other document; (d) your failure or delay in
obtaining any other guaranty of the Obligations (including, without limitation,
your failure to obtain the signature of any other guarantor hereunder); (e) the
release of, extension of time for payment or performance by, or any other
indulgence granted to the Customer or any other person with respect to the
Obligations by operation of law or otherwise; (f) the existence, value,
condition, loss, subordination or release (with or without substitution) of, or
failure to have title to or perfect and maintain a security interest in, or the
time, place and manner of any sale or other disposition of any leased equipment,
collateral or security given in connection with the Obligations, or any other
impairment (whether intentional or negligent, by operation of law or otherwise)
of the rights of the undersigned; (g) the Customer's voluntary or involuntary
bankruptcy, assignment for the benefit of creditors, reorganization, or similar
proceedings affecting the Customer or any of its assets; or (h) any other action
or circumstances which might otherwise constitute a legal or equitable discharge
or defense of a surety or guarantor. Therefore, the undersigned hereby expressly
waives to the rights contained under Articles 2826, 2846 and 2847 of the Civil
Code and the corresponding provisions of the Codes.
The undersigned agrees that this Guaranty shall remain in full force and
effect or be reinstated (as the case may be) if at any time payment or
performance of any of the Obligations (or any part thereof) is rescinded,
reduced or otherwise be restored or returned by you, all as though such payment
or performance had not been made. If, by reason of any bankruptcy, insolvency or
similar laws affecting the rights of creditors, you shall be prohibited from
exercising any of your rights or remedies against the Customer or any other
person or against any property, then, as between you and the undersigned, such
prohibition shall be of no force and effect, and you shall have the right to
make
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demand upon, and receive payment from, the undersigned of all amounts and other
sums that would be due to you upon a default with respect to the Obligations.
Notice of acceptance of this Guaranty and of any default by the Customer or
any other person is hereby waived. Presentment, protest, demand, and notice of
protest, demand and dishonor of any of the Obligations, and the exercise of
possessory, collection or other remedies for the Obligations, are hereby waived.
The undersigned hereby expressly waives to the rights contained in Articles 2848
and 2849 of the Civil Code and the corresponding provisions of the Codes
including, but not limited to, the undersigned's right to terminate this
Guaranty by reason of you not filing a suit or continuing therewith against the
Customer for a period of more than three months. All settlements, compromises,
accounts stated and agreed balances made in good faith between the Customer, its
successors or assigns, and you shall be binding upon and shall not affect the
liability of the undersigned.
Payment of all amounts now or hereafter owed to the undersigned by the
Customer or any other obligor for any of the Obligations is hereby subordinated
in right of payment to the indefeasible payment in full to you of all
Obligations and is hereby assigned to you as a security therefor. The
undersigned hereby irrevocably and unconditionally waives and relinquishes all
statutory, contractual, and all other claims against the Customer, any other
obligor for any of the Obligations, any collateral therefor, or any other assets
of the Customer or any such other obligor, for subrogation, reimbursement,
exoneration, contribution, indemnification, set off or other recourse in respect
of sums paid or payable to you by the undersigned hereunder, and the undersigned
hereby further irrevocably and unconditionally waives and relinquishes any and
all other benefits which it might otherwise directly or indirectly receive or be
entitled to receive by reason of any amounts paid by, or collected or due from,
it, the Customer or any other obligor for any of the Obligations, or realized
from any of their respective assets.
If more than one person signs this document as guarantor: (i) in terms of
Article 2827 of the Civil Code and the corresponding provisions of the Codes,
all signatories of this Guaranty sign it as soldiery obligees, all of them
jointly and severally liable under this Guaranty, and (ii) all references made
in the text of this Guaranty to the word "undersigned" will include all these
persons which sign this Guaranty. The undersigned will not be released from its
obligations hereunder unless your acts constitute gross negligence or willful
misconduct, the undersigned cannot surrogate on the rights, privileges or liens
held by you, therefore waiving to the rights contained in Article 2845 of the
Civil Code and the corresponding provisions of the Codes.
In case of substantial changes in the terms of any Documents, the
Undersigned agrees that this Guaranty shall remain in full force, and effect
unless otherwise required by you. If, pursuant to new circumstances you consider
that a new guaranty needs to be agreed upon, the undersigned agrees to modify
the terms and obligations herein, pursuant to the condition stated by you.
As used in this Guaranty, the word "person" shall include any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, or any government or any political
subdivision thereof.
This Guaranty is intended by the parties as a final expression of the
guaranty of the undersigned and is also intended as a complete and exclusive
statements of the terms thereof. No course of dealing, course of performance or
trade usage, nor any paid evidence of any kind, shall be used to supplement or
modify any of the terms hereof. Nor are there any conditions to the full
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effectiveness of this Guaranty. This Guaranty and each of its provisions may
only be waived, modified, varied, released, terminated or surrender, in whole or
in part, by a duly authorized written instrument signed by you. No failure by
you to exercise your rights hereunder shall give rise to any estoppel against
you, or excuse the undersigned from performing hereunder. Your waiver of any
right to demand performance hereunder shall not be a waiver of any subsequent or
other rights to demand performance hereunder.
This Guaranty shall bind the undersigned's successors and assigns and the
benefits thereof shall extend to and include your successors and assigns. In the
event of default hereunder, you may at any time inspect undersigned's records,
or at your option, undersigned shall furnish you with a current independent
audit report.
If any provisions of this Guaranty are in conflict with any applicable law
or regulation, then such provisions shall be deemed null and void to the extent
that they may conflict therewith, but without invalidating any other provisions
hereof.
The undersigned agrees that this Guaranty, its interpretation and
application, will be subject in all respects to the laws of the State of New
York (without giving effect to any conflicts of laws principles thereof), its
interpretive case law and jurisprudence and its English version will prevail in
the event any legal proceeding related to this Guaranty is brought therein. The
undersigned also agrees that this Guaranty, its interpretation and application
will be subject in all respects to the laws of Mexico, its interpretative case
law and jurisprudence, and its Spanish version will prevail in the event that
any legal proceeding related to this Guaranty is brought therein.
Undersigned (a) hereby irrevocably submits itself to the nonexclusive
jurisdiction of the state courts of New York, United States of America, and the
United States District Court for the Southern District of New York, if any legal
proceeding related to this Guaranty is brought in the State of New York, and to
the courts within the Federal District of the United Mexican States if any legal
proceeding related to this Guaranty is brought in Mexico, for the purposes of
any suit, action or other proceeding arising out of this Guaranty, or any of the
transactions contemplated hereby brought by any party or parties thereto, or
their successors or assigns, (b) hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in, to the
fullest extent permitted by law, such courts, and (c) to the extent that
undersigned has or hereafter may acquire any immunity from jurisdiction of any
such court or from any legal process therein hereby waives, to the fullest
extent permitted by law, such immunity, and agrees not to assert, by way of
motion, as a defense, or otherwise, in any such suit, action or proceeding, the
defense of sovereign immunity, or any claim (i) that it is not personally
subject to the jurisdiction of the above-named courts by reason of sovereign
immunity or otherwise, (ii) that it is immune from any legal process (whether
through service or notice, attachment prior to the judgment, attachments in aid
of execution, execution or otherwise) with respect to itself of its property, by
reason of sovereign immunity, (iii) that the suit, action or proceeding is
brought in an inconvenient forum, (iv) the venue of the suit, action or
proceeding is improper, or (v) that this Guaranty may not be enforced in or by
such courts.
Undersigned further agrees that a final judgment against it in any such
action or proceeding shall be conclusive, and may be enforced in other
jurisdictions (including, without limitation, Mexico) by suit on the judgment or
in any other manner provided by law, and a certified or true copy of such final
judgment shall be conclusive evidence of the fact and of the amount of any
indebtedness or liability of undersigned therein described; provided that
nothing herein shall affect your right or the right of your successors or
assigns to serve legal process in any other manner permitted by law or
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affect your rights or the rights of your successors or assigns to bring action
or proceeding against undersigned or its property in the courts of other
jurisdictions.
Undersigned waives any and all defenses it may have that this Guaranty is
unenforceable according to the laws of Mexico or the United States.
IN WITNESS WHEREOF, this Guaranty is executed the day and year above
written.
GUARANTOR
TARRANT MEXICO, S. DE X. X. DE C.V.
/s/ Xxxxxxx X. Xxxxx
----------------------------
By: Xx. Xxxxxxx X. Xxxxx
Attorney in Fact
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