EXHIBIT 10.11
Exhibit VII
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[FORM OF] GUARANTY
This GUARANTY is entered into as of February 1, 2000 by the undersigned
(each a "Guarantor", and together with any future Subsidiaries executing this
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Guaranty, being collectively referred to herein as the "Guarantors") in favor of
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and for the benefit of Bank of America, N.A., as agent for and representative of
(in such capacity herein called "Guarantied Party") Collateral Agent and the
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several financial institutions ("Banks") from time to time party to the Credit
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Agreement referred to below, and for the benefit of the other Beneficiaries (as
hereinafter defined).
PRELIMINARY STATEMENTS
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▇. ▇▇▇▇ ▇▇▇▇▇▇▇ & Co., a Delaware corporation ("Company"), has entered
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into that certain Amended and Restated 1999 180 Day Credit Agreement dated as of
January 31, 2000 with Banks, the several financial institutions party thereto as
Co-Documentation Agents and Guarantied Party, as Administrative Agent and
Collateral Agent for Banks (said Amended and Restated 1999 180 Day Credit
Agreement, as it may hereafter be amended, modified, or supplemented from time
to time, being the "Credit Agreement"; capitalized terms defined therein and not
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otherwise defined herein being used herein as therein defined).
B. Guarantied Party, Banks and Collateral Agent are sometimes referred to
herein as "Beneficiaries".
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C. A portion of the proceeds of the Loans may be advanced to Guarantors,
and thus the Guarantied Obligations (as hereinafter defined) are being incurred
for and will inure to the benefit of Guarantors (which benefits are hereby
acknowledged).
D. It is a condition precedent to the effectiveness of the Credit
Agreement that Company's obligations thereunder be guarantied by Guarantors.
E. Guarantors are willing irrevocably and unconditionally to guaranty
such obligations of Company.
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 Banks and Guarantied Party to enter into the Credit
Agreement, Guarantors hereby agree as follows:
1. Guaranty. (a) In order to induce Banks to extend credit to Company
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pursuant to the Credit Agreement, 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
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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
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Obligations" is used herein in its most comprehensive sense and includes any and
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all Obligations of Company, now or hereafter made, incurred or created, whether
absolute or contingent, liquidated or unliquidated, whether due or not due, and
however arising under or in connection with the Credit Agreement, this Guaranty
and the other Loan Documents, including those arising under successive borrowing
transactions under the Credit Agreement which shall either continue the
Obligations of Company or from time to time renew them after they have been
satisfied.
Each Guarantor acknowledges that a portion of the Loans may be advanced to
it, that Lender 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 Company (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 Guarantied Party that the Guarantied Obligations should be
determined without regard to any rule of law or order that may relieve Company
of any portion of such Guarantied Obligations.
In the event that all or any portion of the Guarantied Obligations is paid
by Company, 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 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
Company 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 Guarantied Party for the ratable benefit of 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
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Transfer Laws"), in each case after giving effect to all other liabilities of
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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 Company or other
affiliates of Company to the extent that such indebtedness would be
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discharged in an amount equal to the amount paid by such Guarantor hereunder and
(ii) under any guaranty which contains a limitation as to maximum amount similar
to that set forth in this Section 1(b), pursuant to which the liability of such
Guarantor hereunder is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as assets to the value
(as determined under the applicable provisions of the Fraudulent Transfer Laws)
of any rights to subrogation, reimbursement, indemnification or contribution of
such Guarantor pursuant to applicable law or pursuant to the terms of any
agreement.
(c) Each Guarantor under this Guaranty, and each guarantor under other
guaranties, if any, relating to the Credit Agreement (the "Related Guaranties")
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that contain a contribution provision similar to that set forth in this Section
1(c), together desire to allocate among themselves (collectively, the
"Contributing Guarantors"), in a fair and equitable manner, their obligations
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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 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) 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 Company and any
Beneficiary with respect to the existence of such event; (c) the obligations of
each Guarantor hereunder are independent of the obligations of Company under the
Loan Documents and the obligations of any other Guarantor and a separate action
or actions may be brought and prosecuted against each Guarantor whether or not
any action is brought against Company or any of such other Guarantors and
whether or not Company 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 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
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obligations, (c) request and accept other guaranties of the Guarantied
Obligations and take and hold security for the payment of this Guaranty or the
Guarantied Obligations, (d) release, exchange, compromise, subordinate or
modify, with or without consideration, any security for payment of the
Guarantied Obligations, any other guaranties of the Guarantied Obligations, or
any other obligation of any Person with respect to the Guarantied Obligations,
(e) enforce and apply any security now or hereafter held by or for the benefit
of any Beneficiary in respect of this Guaranty or the Guarantied Obligations and
direct the order or manner of sale thereof, or exercise any other right or
remedy that Guarantied Party or the other Beneficiaries, or any of them, may
have against any such security, as Guarantied Party in its discretion may
determine consistent with the Credit Agreement and any applicable security
agreement, including foreclosure on any such security pursuant to one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable, and (f) exercise any other rights available to
Guarantied Party or the other Beneficiaries, or any of them, under the Loan
Documents.
4. No Discharge. This Guaranty and the obligations of 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 without limitation the occurrence of
any of the following, whether or not any Guarantor shall have had notice or
knowledge of any of them: (a) any failure to assert or enforce or agreement not
to assert or enforce, or the stay or enjoining, by order of court, by operation
of law or otherwise, of the exercise or enforcement of, any claim or demand or
any right, power or remedy with respect to the Guarantied Obligations or any
agreement relating thereto, or with respect to any other guaranty of or security
for the payment of the Guarantied Obligations, (b) any waiver or modification
of, or any consent to departure from, any of the terms or provisions of the
Credit Agreement, any of the other Loan Documents or any agreement or instrument
executed pursuant thereto, or of any other guaranty or security for the
Guarantied Obligations, (c) the Guarantied Obligations, or any agreement
relating thereto, at any time being found to be illegal, invalid or
unenforceable in any respect, (d) the application of payments received from any
source to the payment of indebtedness other than the Guarantied Obligations,
even though 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 Company may assert against
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 Beneficiaries: (a)
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any right to require Guarantied Party or the other Beneficiaries, as a condition
of payment or performance by such Guarantor, to (i) proceed against Company, any
other guarantor (including any other Guarantor) of the Guarantied Obligations or
any other Person, (ii) proceed against or exhaust any security held from
Company, any other guarantor of the Guarantied Obligations or any other Person,
(iii) proceed against or have resort to any balance of any deposit account or
credit on the
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books of any Beneficiary in favor of Company 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 Company including, without limitation, 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 Company 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 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 or any agreement or instrument
related thereto, notices of any renewal, extension or modification of the
Guarantied Obligations or any agreement related thereto, notices of any
extension of credit to Company and notices of any of the matters referred to in
Sections 3 and 4 hereof and any right to consent to any thereof; and (g) to the
fullest extent permitted by law, any defenses or benefits that may be derived
from or afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms of this Guaranty.
As used in this paragraph, any reference to "the principal" includes
Company, and any reference to "the creditor" includes Guarantied Party and each
other Beneficiary. In accordance with Section 2856 of the California Civil Code
(a) 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 without limitation any and all rights or defenses such
Guarantor may have 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 without limitation
Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure; and
(b) each Guarantor 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
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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. Until the Guarantied Obligations shall have been paid in
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full, the Commitments shall have terminated and all Lender Letters of Credit
shall have expired or been cancelled, no Guarantor shall exercise any claim,
right or remedy, direct or indirect, that such Guarantor now has or may
hereafter have against Company or its 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 without limitation under California Civil Code Section 2847, 2848 or
2849), under common law or otherwise and including without limitation (a) any
right of subrogation, reimbursement or indemnification that such Guarantor now
has or may hereafter have against Company, (b) any right to enforce, or to
participate in, any claim, right or remedy that any Beneficiary now has or may
hereafter have against Company, and (c) any benefit of, and any right to
participate in, any collateral or security now or hereafter held by any
Beneficiary. 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
Company 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 Guarantied Party or the other Beneficiaries may have
against Company, to all right, title and interest Guarantied Party or the other
Beneficiaries may have in any such collateral or security, and to any right
Guarantied Party or the other Beneficiaries may have against such other
guarantor.
Any indebtedness of Company now or hereafter held by any Guarantor is
subordinated in right of payment to the Guarantied Obligations, and any such
indebtedness of Company 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 Guarantied
Party on behalf of Beneficiaries and shall forthwith be paid over to Guarantied
Party for the benefit of Beneficiaries to be credited and applied against the
Guarantied Obligations.
7. Expenses. Guarantors jointly and severally agree to pay, or cause to
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be paid, on demand, and to save Guarantied Party and the other Beneficiaries
harmless against liability for, any and all costs and expenses (including fees
and disbursements of counsel and allocated costs of internal counsel) incurred
or expended by Guarantied Party or any other Beneficiary in connection with the
enforcement of or preservation of any rights under this Guaranty.
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8. Financial Condition of Company. No Beneficiary shall have any
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obligation, and each Guarantor waives any duty on the part of any Beneficiary,
to disclose or discuss with such Guarantor its assessment, or such Guarantor's
assessment, of the financial condition of Company or any matter or fact relating
to the business, operations or condition of Company. Each Guarantor has
adequate means to obtain information from Company on a continuing basis
concerning the financial condition of Company and its ability to perform its
obligations under the Loan Documents, and each Guarantor assumes the
responsibility for being and keeping informed of the financial condition of
Company 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 Beneficiaries, each of the representations and warranties made in the Credit
Agreement by Company 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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Guaranteed Obligations shall remain unpaid, any Lender Letter of Credit shall be
outstanding, or any Bank shall have any Commitment, such Guarantor will, unless
Majority Banks shall otherwise consent in writing, perform or observe, and cause
its Subsidiaries to perform or observe, all of the terms, covenants and
agreements that the Loan Documents state that Company is to cause a Guarantor
and such Subsidiaries to perform or observe.
11. Set Off. In addition to any other rights any Beneficiary may have
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under law or in equity, if any amount shall at any time be due and owing by a
Guarantor to any Beneficiary under this Guaranty, such Beneficiary is authorized
at any time or from time to time, without notice (any such notice being
expressly waived), to set off and to appropriate and to apply any and all
deposits (general or special, including but not limited to indebtedness evidence
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
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a Guarantor or any of its successors in interest under this Guaranty shall be
sold or otherwise disposed of (including by merger or consolidation) in a sale
in compliance with the terms of the Credit Agreement, 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
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that, if the sale of such stock constitutes a Disposition as a condition
precedent to such discharge and release, Guarantied Party shall have received
evidence satisfactory to it that arrangements satisfactory to it have been made
for delivery to Guarantied Party of the Net Asset Disposition 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,
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shall in any event be effective without the written concurrence of Guarantied
Party and, in the case of any such amendment or modification, 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 Beneficiaries to inquire into
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the capacity or powers of any Guarantor or Company 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 Beneficiaries by this Guaranty are
cumulative and shall be in addition to and independent of all rights, powers and
remedies given to Beneficiaries by virtue of any statute or rule of law or in
any of the Loan Documents or any agreement between one or more Guarantors and
one or more Beneficiaries or between Company 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.
In case any provision in or obligation under this Guaranty shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF GUARANTORS, GUARANTIED
PARTY AND THE OTHER BENEFICIARIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
This Guaranty shall inure to the benefit of Beneficiaries and their
respective successors and assigns.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH GUARANTOR, GUARANTIED PARTY, COLLATERAL AGENT AND BANKS EACH CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH GUARANTOR, GUARANTIED PARTY, COLLATERAL AGENT AND BANKS EACH
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
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HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH GUARANTOR, GUARANTIED
PARTY, COLLATERAL AGENT AND BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR
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OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
EACH GUARANTOR, COLLATERAL AGENT, BANKS AND GUARANTIED PARTY EACH WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY ADMINISTRATIVE
AGENT-RELATED PERSON, COLLATERAL AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH
GUARANTOR, COLLATERAL AGENT, BANKS AND GUARANTIED PARTY EACH AGREE THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE
RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY
ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION
HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
15. Additional Guarantors. The initial Guarantor(s) hereunder shall be
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such of the Subsidiaries of Company as are signatories hereto on the date
hereof. From time to time subsequent to the date hereof, Subsidiaries of
Company may become parties hereto, as additional Guarantors (each an "Additional
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Guarantor"), by executing a counterpart, a form of which is attached as
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Exhibit A, of this Guaranty. Upon delivery of any such counterpart to Guarantied
Party, notice of which is hereby waived by 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 Company 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 any
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number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original for all purposes; but all such counterparts together shall
constitute but one and the same instrument. 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) and receipt by the Guaranteed Party of written or
telephonic notification of such execution and authorization of delivery thereof.
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17. Guarantied Party as Agent.
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(a) Guarantied Party has been appointed to act as Guarantied Party
hereunder by Banks. 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) Guarantied Party shall at all times be the same Person that is
Administrative Agent under the Credit Agreement. Written notice of resignation
by Administrative Agent pursuant to Section 9.9 of the Credit Agreement shall
also constitute notice of resignation as Guarantied Party under this Guaranty;
removal of Administrative Agent pursuant to Section 9.9 of the Credit Agreement
shall also constitute removal as Guarantied Party under this Guaranty; and
appointment of a successor administrative agent pursuant to Section 9.9 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 9.9 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 or removed Guarantied party under this Guaranty, and the retiring
or removed 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 or removed Guarantied Party shall be
discharged from its duties and obligations under this Guaranty. After any
retiring or removed Guarantied Party's resignation or removal 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 Guarantied Party hereunder.
[The remainder of this page intentionally left blank.]
VII-10
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:_________________________________________
Title:________________________________________
Address: _____________________________________
_____________________________________
_____________________________________
LEVI ▇▇▇▇▇▇▇ FINANCIAL CENTER CORPORATION
By:___________________________________________
Name:_________________________________________
Title:________________________________________
Address: _____________________________________
_____________________________________
_____________________________________
LEVI ▇▇▇▇▇▇▇ FUNDING, LLC
By:___________________________________________
Name:_________________________________________
Title:________________________________________
Address: _____________________________________
_____________________________________
_____________________________________
LEVI ▇▇▇▇▇▇▇ GLOBAL FULFILLMENT SERVICES, INC.
By:___________________________________________
Name:_________________________________________
Title:________________________________________
Address: _____________________________________
_____________________________________
_____________________________________
VII-11
LEVI ▇▇▇▇▇▇▇ GLOBAL OPERATIONS, INC.
By:___________________________________________
Name:_________________________________________
Title:________________________________________
Address: _____________________________________
_____________________________________
_____________________________________
LEVI ▇▇▇▇▇▇▇ INTERNATIONAL
By:___________________________________________
Name:_________________________________________
Title:________________________________________
Address: _____________________________________
_____________________________________
_____________________________________
LEVI ▇▇▇▇▇▇▇ LATIN AMERICA, INC.
By:___________________________________________
Name:_________________________________________
Title:________________________________________
Address: _____________________________________
_____________________________________
_____________________________________
LEVI'S ONLY STORES, INC.
By:___________________________________________
Name:_________________________________________
Title:________________________________________
Address: _____________________________________
_____________________________________
_____________________________________
VII-12
NF INDUSTRIES, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
Address: ____________________________
____________________________
____________________________
ACKNOWLEDGED AND FOR PURPOSES OF THE
WAIVER OF JURY TRIAL SET FORTH IN
SECTION 14 ONLY, AGREED AS OF THE DATE
FIRST WRITTEN ABOVE Bank of America,
N.A., as Administrative Agent
By:_______________________________
Title: ___________________________
VII-13
Exhibit A to
------------
Guaranty
--------
[FORM OF] COUNTERPART FOR ADDITIONAL GUARANTORS
This COUNTERPART (this "Counterpart"), dated _______, _____, 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
February 1, 2000 (as it may be from time to time amended, modified, or
supplemented, the "Guaranty"; capitalized terms used herein not otherwise
--------
defined herein shall have the meanings specified therein), among the Guarantors
named therein and Bank of America, N.A., as Guarantied Party. The undersigned,
by executing and delivering this Counterpart, hereby becomes an Additional
Guarantor under the Guaranty in accordance with Section 15 thereof and agrees to
be bound by all of the terms thereof.
IN WITNESS WHEREOF, the undersigned has caused this Counterpart to be
duly executed and delivered by its officer thereunto duly authorized as of
______________, ____.
[NAME OF ADDITIONAL GUARANTOR]
By:__________________________
Name:________________________
Title:_______________________
Address: ___________________
___________________
___________________
IX-Sch. 1-1