Exhibit 10.2
SUBSIDIARY GUARANTY AGREEMENT
THIS SUBSIDIARY GUARANTY AGREEMENT (this "Guaranty Agreement"), dated as of
June 17, 2005 is made by EACH OF THE UNDERSIGNED AND EACH OTHER PERSON WHO SHALL
BECOME A PARTY HERETO BY EXECUTION OF A GUARANTY JOINDER AGREEMENT (each a
"Guarantor" and collectively the "Guarantors") to BANK OF AMERICA, N.A., a
national banking association organized and existing under the laws of the United
States, as administrative agent (in such capacity, the "Administrative Agent")
for each of the lenders (the "Lenders" now or hereafter party to the Credit
Agreement defined below (collectively with the Administrative Agent, and certain
other Persons parties to Related Credit Arrangements as more particularly
described in Section 19 hereof, the "Secured Parties"). All capitalized terms
used but not otherwise defined herein shall have the meanings ascribed to such
terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
("B&N"), and certain Subsidiaries of B&N (together with B&N, collectively the
"Borrowers" and each individually a "Borrower") a revolving credit facility with
a letter of credit and swing line sublimit pursuant to the terms of that certain
Credit Agreement dated as of even date herewith, among the Borrowers, the
Administrative Agent and the Lenders (as from time to time amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement");
and
WHEREAS, each Guarantor is, directly or indirectly, a Subsidiary of B&N and
will materially benefit from the Loans made and to be made, and the Letters of
Credit issued and to be issued, under the Credit Agreement and the other
extensions of credit pursuant to the Related Credit Arrangements; and
WHEREAS, a material part of the consideration given in connection with and
as an inducement to the execution and delivery of the Credit Agreement is the
execution and delivery of this Guaranty Agreement, and the Secured Parties are
unwilling to extend and maintain the credit facilities provided under the Loan
Documents and Related Credit Arrangements unless the Guarantors enter into this
Guaranty Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. Guaranty. Each Guarantor hereby jointly and severally, unconditionally,
absolutely, continually and irrevocably guarantees to the Administrative Agent
for the benefit of the Secured Parties the payment and performance in full of
the Guaranteed Liabilities (as defined below). For all purposes of this Guaranty
Agreement, "Guaranteed Liabilities" means: (a) each Borrower's prompt payment in
full, when due or declared due and at all such times, of all Obligations and all
other amounts pursuant to the terms of the Credit Agreement, the Notes, and all
other Loan Documents heretofore, now or at any time or times hereafter owing,
arising, due or payable from the Borrowers to any one or more of the Secured
Parties, including principal, interest, premiums and fees (including, but not
limited to, loan fees and reasonable fees, charges and disbursements of counsel
("Attorney Costs")); (b) each Borrower's prompt, full and faithful performance,
observance and discharge of each and every agreement, undertaking, covenant and
provision to be performed, observed or discharged by such Borrower under the
Credit Agreement, the Notes and all other Loan Documents; and (c) the prompt
payment in full by each Loan Party, when due or declared due and at all such
times, of obligations and liabilities now or hereafter arising under Related
Credit Arrangements. The Guarantors' obligations to the Secured Parties under
this Guaranty Agreement are hereinafter collectively referred to as the
"Guarantors' Obligations" and, with respect to each Guarantor individually, the
"Guarantor's Obligations". Notwithstanding the foregoing, the liability of each
Guarantor individually with respect to its Guarantor's Obligations shall be
limited to an aggregate amount equal to the largest amount that would not render
its obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any comparable provisions of any applicable state law.
Each Guarantor agrees that it is jointly and severally, directly and
primarily liable (subject to the limitation in the immediately preceding
sentence) for the Guaranteed Liabilities.
2. Payment. If any Borrower shall default in payment or performance of any
of the Guaranteed Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and Attorney Costs), or otherwise,
when and as the same shall become due, and after expiration of any applicable
grace period, whether according to the terms of the Credit Agreement, by
acceleration, or otherwise, or upon the occurrence and during the continuance of
any Event of Default under the Credit Agreement, then any or all of the
Guarantors will, upon demand thereof by the Administrative Agent, fully pay to
the Administrative Agent, for the benefit of the Secured Parties, subject to any
restriction on each Guarantor's Obligations set forth in Section 1 hereof, an
amount equal to all the Guaranteed Liabilities then due and owing.
3. Absolute Rights and Obligations. This is a guaranty of payment and not
of collection. The Guarantors' Obligations under this Guaranty Agreement shall
be joint and several, absolute and unconditional irrespective of, and each
Guarantor hereby expressly waives, to the extent permitted by law, any defense
to its obligations under this Guaranty Agreement by reason of:
(a) any lack of legality, validity or enforceability of the Credit
Agreement, of any of the Notes, of any other Loan Document, or of any other
agreement or instrument creating, providing security for, or otherwise
relating to any of the Guarantors' Obligations, any of the Guaranteed
Liabilities, or any other guaranty of any of the Guaranteed Liabilities
(the Loan Documents and all such other agreements and instruments being
collectively referred to as the "Related Agreements");
(b) any action taken under any of the Related Agreements, any exercise
of any right or power therein conferred, any failure or omission to enforce
any right conferred thereby, or any waiver of any covenant or condition
therein provided;
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(c) any acceleration of the maturity of any of the Guaranteed
Liabilities, of the Guarantor's Obligations of any other Guarantor, or of
any other obligations or liabilities of any Person under any of the Related
Agreements;
(d) any release, exchange, non-perfection, lapse in perfection,
disposal, deterioration in value, or impairment of any security for any of
the Guaranteed Liabilities, for any of the Guarantor's Obligations of any
Guarantor, or for any other obligations or liabilities of any Person under
any of the Related Agreements;
(e) any dissolution of any Borrower or any Guarantor or any other
party to a Related Agreement, or the combination or consolidation of any
Borrower or any Guarantor or any other party to a Related Agreement into or
with another entity or any transfer or disposition of any assets of any
Borrower or any Guarantor or any other party to a Related Agreement;
(f) any extension (including without limitation extensions of time for
payment), renewal, amendment, restructuring or restatement of, any
acceptance of late or partial payments under, or any change in the amount
of any borrowings or any credit facilities available under, the Credit
Agreement, any of the Notes or any other Loan Document or any other Related
Agreement, in whole or in part;
(g) the existence, addition, modification, termination, reduction or
impairment of value, or release of any other guaranty (or security
therefor) of the Guaranteed Liabilities (including without limitation the
Guarantor's Obligations of any other Guarantor and obligations arising
under any other Guaranty now or hereafter in effect);
(h) any waiver of, forbearance or indulgence under, or other consent
to any change in or departure from any term or provision contained in the
Credit Agreement, any other Loan Document or any other Related Agreement,
including without limitation any term pertaining to the payment or
performance of any of the Guaranteed Liabilities, any of the Guarantor's
Obligations of any other Guarantor, or any of the obligations or
liabilities of any party to any other Related Agreement;
(i) any other circumstance whatsoever (with or without notice to or
knowledge of any Guarantor) which may or might in any manner or to any
extent vary the risks of such Guarantor, or might otherwise constitute a
legal or equitable defense available to, or discharge of, a surety or a
guarantor, including without limitation any right to require or claim that
resort be had to any Borrower or any other Loan Party or to any collateral
in respect of the Guaranteed Liabilities or Guarantors' Obligations.
It is the express purpose and intent of the parties hereto that this Guaranty
Agreement and the Guarantors' Obligations hereunder and under each Guaranty
Joinder Agreement shall be absolute and unconditional under any and all
circumstances and shall not be discharged except by payment as herein provided.
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4. Currency and Funds of Payment. All Guarantors' Obligations will be paid
in lawful currency of the United States of America and in immediately available
funds, regardless of any law, regulation or decree now or hereafter in effect
that might in any manner affect the Guaranteed Liabilities, or the rights of any
Secured Party with respect thereto as against any Borrower, or cause or permit
to be invoked any alteration in the time, amount or manner of payment by any
Borrower of any or all of the Guaranteed Liabilities.
5. Events of Default. Without limiting the provisions of Section 2 hereof,
in the event that there shall occur and be continuing an Event of Default, then
notwithstanding any collateral or other security or credit support for the
Guaranteed Liabilities, at the Administrative Agent's election, the Guarantors'
Obligations shall immediately be and become due and payable.
6. Subordination. Until this Guaranty Agreement is terminated in accordance
with Section 22 hereof, each Guarantor hereby unconditionally subordinates all
present and future debts, liabilities or obligations now or hereafter owing to
such Guarantor (i) of each Borrower, to the payment in full of the Guaranteed
Liabilities, (ii) of every other Guarantor (an "obligated guarantor"), to the
payment in full of the Guarantors' Obligations of such obligated guarantor, and
(iii) of each other Person now or hereafter constituting a Loan Party, to the
payment in full of the obligations of such Loan Party owing to any Secured Party
and arising under the Loan Documents or the Related Credit Arrangements. All
amounts due under such subordinated debts, liabilities, or obligations shall,
upon the occurrence and during the continuance of an Event of Default, be
collected and, upon request by the Administrative Agent, paid over forthwith to
the Administrative Agent for the benefit of the Secured Parties on account of
the Guaranteed Liabilities, the Guarantors' Obligations, or such other
obligations, as applicable, and, after such request and pending such payment,
shall be held by such Guarantor as agent and bailee of the Secured Parties
separate and apart from all other funds, property and accounts of such
Guarantor.
7. Suits. Each Guarantor from time to time shall pay to the Administrative
Agent for the benefit of the Secured Parties, on demand, at the Administrative
Agent's place of business set forth in the Credit Agreement or such other
address as the Administrative Agent shall give notice of to such Guarantor, the
Guarantors' Obligations as they become or are declared due, and in the event
such payment is not made forthwith, the Administrative Agent may proceed to suit
against any one or more or all of the Guarantors. At the Administrative Agent's
election, one or more and successive or concurrent suits may be brought hereon
by the Administrative Agent against any one or more or all of the Guarantors,
whether or not suit has been commenced against a Borrower, any other Guarantor,
or any other Person and whether or not the Secured Parties have taken or failed
to take any other action to collect all or any portion of the Guaranteed
Liabilities or have taken or failed to take any actions against any collateral
securing payment or performance of all or any portion of the Guaranteed
Liabilities, and irrespective of any event, occurrence, or condition described
in Section 3 hereof.
8. Set-Off and Waiver. Each Guarantor waives any right to assert against
any Secured Party as a defense, counterclaim, set-off, recoupment or cross claim
in respect of its Guarantor's Obligations, any defense (legal or equitable) or
other claim which such Guarantor may now or at any time hereafter have against
any Borrower or any or all of the Secured Parties
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without waiving any additional defenses, set-offs, counterclaims or other claims
otherwise available to such Guarantor. Each Guarantor agrees and hereby
authorizes each Secured Party during the continuance of an Event of Default at
any time or times with or without prior notice to apply such balances or any
part thereof of any and all deposits or deposit accounts, of any kind, or any
interest in any deposits or deposit accounts, in the possession or control of a
Secured Party for any purpose (other than solely for safekeeping) for the
account or benefit of such Guarantor, including any balance of any deposit
account or of any credit of such Guarantor with such Secured Party to such of
the Guarantor's Obligations to the Secured Parties then due and in such amounts
as provided for in the Credit Agreement or otherwise as they may elect. For the
purposes of this Section 8, all remittances and property shall be deemed to be
in the possession of a Secured Party as soon as the same may be put in transit
to it by mail or carrier or by other bailee.
9. Waiver of Notice; Subrogation.
(a) Each Guarantor hereby waives to the extent permitted by law notice
of the following events or occurrences: (i) acceptance of this Guaranty
Agreement; (ii) the Lenders' heretofore, now or from time to time hereafter
making Loans and issuing Letters of Credit and otherwise loaning monies or
giving or extending credit to or for the benefit of any Borrower or any
other Loan Party, or otherwise entering into arrangements with any Loan
Party giving rise to Guaranteed Liabilities, whether pursuant to the Credit
Agreement or the Notes or any other Loan Document or Related Agreement or
any amendments, modifications, or supplements thereto, or replacements or
extensions thereof; (iii) presentment, demand, default, non-payment,
partial payment and protest; and (iv) any other event, condition, or
occurrence described in Section 3 hereof. Each Guarantor agrees that each
Secured Party may heretofore, now or at any time hereafter do any or all of
the foregoing in such manner, upon such terms and at such times as each
Secured Party, in its sole and absolute discretion, deems advisable,
without in any way or respect impairing, affecting, reducing or releasing
such Guarantor from its Guarantor's Obligations, and each Guarantor hereby
consents to each and all of the foregoing events or occurrences.
(b) Each Guarantor hereby agrees that payment or performance by such
Guarantor of its Guarantor's Obligations under this Guaranty Agreement may
be enforced by the Administrative Agent on behalf of the Secured Parties
upon demand by the Administrative Agent to such Guarantor without the
Administrative Agent being required, such Guarantor expressly waiving to
the extent permitted by law any right it may have to require the
Administrative Agent, to (i) prosecute collection or seek to enforce or
resort to any remedies against any Borrower or any other Guarantor or any
other guarantor of the Guaranteed Liabilities, or (ii) seek to enforce or
resort to any remedies with respect to any security interests, Liens or
encumbrances granted to the Administrative Agent or any Lender or other
party to a Related Agreement by any Borrower, any other Guarantor or any
other Person on account of the Guaranteed Liabilities or any guaranty
thereof, IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY SUCH
GUARANTOR THAT DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE MADE BY THE
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ADMINISTRATIVE AGENT, AND THE PROVISIONS HEREOF ENFORCED BY THE
ADMINISTRATIVE AGENT, EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF DEFAULT
OCCURS AND IS CONTINUING UNDER THE CREDIT AGREEMENT.
(c) Each Guarantor further agrees with respect to this Guaranty
Agreement that it shall have no right of subrogation, reimbursement,
contribution or indemnity, nor any right of recourse to security for the
Guaranteed Liabilities unless and until 93 days immediately following the
Facility Termination Date (as defined below) shall have elapsed without the
filing or commencement, by or against any Loan Party, of any state or
federal action, suit, petition or proceeding seeking any reorganization,
liquidation or other relief or arrangement in respect of creditors of, or
the appointment of a receiver, liquidator, trustee or conservator in
respect to, such Loan Party or its assets. This waiver is expressly
intended to prevent the existence of any claim in respect to such
subrogation, reimbursement, contribution or indemnity by any Guarantor
against the estate of any other Loan Party within the meaning of Section
101 of the Bankruptcy Code, in the event of a subsequent case involving any
other Loan Party. If an amount shall be paid to any Guarantor on account of
such rights at any time prior to termination of this Guaranty Agreement in
accordance with the provisions of Section 22 hereof, such amount shall be
held in constructive trust for the benefit of the Secured Parties and shall
forthwith be paid to the Administrative Agent, for the benefit of the
Secured Parties, to be credited and applied upon the Guarantors'
Obligations, whether matured or unmatured, in accordance with the terms of
the Credit Agreement or otherwise as the Secured Parties may elect. The
agreements in this subsection shall survive repayment of all of the
Guarantors' Obligations, the termination or expiration of this Guaranty
Agreement in any manner, including but not limited to termination in
accordance with Section 22 hereof, and occurrence of the Facility
Termination Date. For purposes of this Guaranty Agreement, "Facility
Termination Date" means the date as of which all of the following shall
have occurred: (a) the Borrowers shall have permanently terminated the
credit facilities under the Loan Documents by final payment in full of all
Outstanding Amounts, together with all accrued and unpaid interest and fees
thereon, other than (i) the undrawn portion of Letters of Credit and (ii)
all letter of credit fees relating thereto accruing after such date (which
fees shall be payable solely for the account of the L/C Issuer and shall be
computed (based on interest rates and the Applicable Rate then in effect)
on such undrawn amounts to the respective expiry dates of the Letters of
Credit), in each case as have been fully Cash Collateralized or as to which
other arrangements with respect thereto satisfactory to the Administrative
Agent and the L/C Issuer shall have been made; (b) all Commitments shall
have terminated or expired; (c) the obligations and liabilities of each
Borrower and each other Loan Party under all Related Credit Arrangements
shall have been fully, finally and irrevocably paid and satisfied in full
and the Related Credit Arrangements shall have expired or been terminated,
or other arrangements satisfactory to the counterparties shall have been
made with respect thereto; and (d) each Borrower and each other Loan Party
shall have fully, finally and irrevocably paid and satisfied in full all of
their respective obligations and liabilities arising under the Loan
Documents, including with respect to such Borrower and the Obligations
(except for future obligations consisting of continuing indemnities and
other contingent Obligations of any
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Borrower or any Loan Party that may be owing to any Agent-Related Person or
any Lender pursuant to the Loan Documents and expressly survive termination
of the Credit Agreement or any other Loan Document).
10. Effectiveness; Enforceability. This Guaranty Agreement shall be
effective as of the date first above written and shall continue in full force
and effect until termination in accordance with Section 22 hereof. Any claim or
claims that the Secured Parties may at any time hereafter have against a
Guarantor under this Guaranty Agreement may be asserted by the Administrative
Agent on behalf of the Secured Parties by written notice directed to such
Guarantor in accordance with Section 24 hereof.
11. Representations and Warranties. Each Guarantor warrants and represents
to the Administrative Agent, for the benefit of the Secured Parties, that it is
duly authorized to execute and deliver this Guaranty Agreement (or the Guaranty
Joinder Agreement to which it is a party, as applicable), and to perform its
obligations under this Guaranty Agreement, that this Guaranty Agreement (or the
Guaranty Joinder Agreement to which it is a party, as applicable) has been duly
executed and delivered on behalf of such Guarantor by its duly authorized
representatives; that this Guaranty Agreement (and any Guaranty Joinder
Agreement to which such Guarantor is a party) is legal, valid, binding and
enforceable against such Guarantor in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles; and that such Guarantor's
execution, delivery and performance of this Guaranty Agreement (and any Guaranty
Joinder Agreement to which such Guarantor is a party) do not violate or
constitute a breach of any of its Organizational Documents, any agreement or
instrument to which such Guarantor is a party, or any law, order, regulation,
decree or award of any governmental authority or arbitral body to which it or
its properties or operations is subject.
12. Expenses. Each Guarantor agrees to be jointly and severally liable for
the payment of all reasonable fees and expenses, including Attorney Costs,
incurred by any Secured Party in connection with the enforcement of this
Guaranty Agreement, whether or not suit be brought.
13. Reinstatement. Each Guarantor agrees that this Guaranty Agreement shall
continue to be effective or be reinstated, as the case may be, at any time
payment received by any Secured Party in respect of any Guaranteed Liabilities
is rescinded or must be restored for any reason, or is repaid by any Secured
Party in whole or in part in good faith settlement of any pending or threatened
avoidance claim.
14. Attorney-in-Fact. To the extent permitted by law, each Guarantor hereby
appoints the Administrative Agent, for the benefit of the Secured Parties, as
such Guarantor's attorney-in-fact for the purposes of carrying out the
provisions of this Guaranty Agreement and taking any action and executing any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes hereof, which appointment is coupled with an interest
and is irrevocable; provided, that the Administrative Agent shall have and may
exercise
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rights under this power of attorney only upon the occurrence and during the
continuance of an Event of Default.
15. Reliance. Each Guarantor represents and warrants to the Administrative
Agent, for the benefit of the Secured Parties, that: (a) such Guarantor has
adequate means to obtain on a continuing basis (i) from each Borrower,
information concerning the Loan Parties and the Loan Parties' financial
condition and affairs and (ii) from other reliable sources, such other
information as it deems material in deciding to provide this Guaranty Agreement
and any Guaranty Joinder Agreement ("Other Information"), and has full and
complete access to the Loan Parties' books and records and to such Other
Information; (b) such Guarantor is not relying on any Secured Party or its or
their employees, directors, agents or other representatives or Affiliates, to
provide any such information, now or in the future; (c) such Guarantor has been
furnished with and reviewed the terms of the Credit Agreement and such other
Loan Documents and Related Agreements as it has requested, is executing this
Guaranty Agreement (or the Guaranty Joinder Agreement to which it is a party, as
applicable) freely and deliberately, and understands the obligations and
financial risk undertaken by providing this Guaranty Agreement (and any Guaranty
Joinder Agreement); (d) such Guarantor has relied solely on the Guarantor's own
independent investigation, appraisal and analysis of each Borrower, each
Borrower's financial condition and affairs, the "Other Information", and such
other matters as it deems material in deciding to provide this Guaranty
Agreement (and any Guaranty Joinder Agreement) and is fully aware of the same;
and (e) such Guarantor has not depended or relied on any Secured Party or its or
their employees, directors, agents or other representatives or Affiliates, for
any information whatsoever concerning any Borrower or any Borrower's financial
condition and affairs or any other matters material to such Guarantor's decision
to provide this Guaranty Agreement (and any Guaranty Joinder Agreement), or for
any counseling, guidance, or special consideration or any promise therefor with
respect to such decision. Each Guarantor agrees that no Secured Party has any
duty or responsibility whatsoever, now or in the future, to provide to such
Guarantor any information concerning any Borrower or any Borrower's financial
condition and affairs, or any Other Information, other than as expressly
provided herein, and that, if such Guarantor receives any such information from
any Secured Party or its or their employees, directors, agents or other
representatives or Affiliates, such Guarantor will independently verify the
information and will not rely on any Secured Party or its or their employees,
directors, agents or other representatives or Affiliates, with respect to such
information.
16. Rules of Interpretation. The rules of interpretation contained in
Sections 1.02 and 1.05 of the Credit Agreement shall be applicable to this
Guaranty Agreement and each Guaranty Joinder Agreement and are hereby
incorporated by reference. All representations and warranties contained herein
shall survive the delivery of documents and any extension of credit referred to
herein or guaranteed hereby.
17. Entire Agreement. This Guaranty Agreement and each Guaranty Joinder
Agreement, together with the Credit Agreement and other Loan Documents,
constitutes and expresses the entire understanding between the parties hereto
with respect to the subject matter hereof, and supersedes all prior
negotiations, agreements, understandings, inducements, commitments or
conditions, express or implied, oral or written, except as herein contained. The
express terms hereof control and supersede any course of performance or usage of
the trade
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inconsistent with any of the terms hereof. Except as provided in Section 22,
neither this Guaranty Agreement nor any Guaranty Joinder Agreement nor any
portion or provision hereof or thereof may be changed, altered, modified,
supplemented, discharged, canceled, terminated, or amended orally or in any
manner other than as provided in the Credit Agreement.
18. Binding Agreement; Assignment. This Guaranty Agreement, each Guaranty
Joinder Agreement and the terms, covenants and conditions hereof and thereof,
shall be binding upon and inure to the benefit of the parties hereto and
thereto, and to their respective heirs, legal representatives, successors and
assigns; provided, however, that no Guarantor shall be permitted to assign any
of its rights, powers, duties or obligations under this Guaranty Agreement, any
Guaranty Joinder Agreement or any other interest herein or therein without the
prior written consent of the Administrative Agent. Without limiting the
generality of the foregoing sentence of this Section 18, any Lender may assign
to one or more Persons, or grant to one or more Persons participations in or to,
all or any part of its rights and obligations under the Credit Agreement (to the
extent permitted by the Credit Agreement); and to the extent of any such
assignment or participation such other Person shall, to the fullest extent
permitted by law, thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, subject however, to the
provisions of the Credit Agreement, including Article IX thereof (concerning the
Administrative Agent) and Section 10.06 thereof concerning assignments and
participations. All references herein to the Administrative Agent shall include
any successor thereof.
19. Related Credit Arrangements. All obligations of any Loan Party under
Related Credit Arrangements to which any Lender or its Affiliates are a party
shall be deemed to be Guaranteed Liabilities, and each Lender or Affiliate of a
Lender party to any such Related Credit Arrangement shall be deemed to be a
Secured Party hereunder with respect to such Guaranteed Liabilities; provided,
however, that such obligations shall cease to be Guaranteed Liabilities at such
time, prior to the Facility Termination Date, as such Person (or Affiliate of
such Person) shall cease to be a "Lender" under the Credit Agreement.
No Person who obtains the benefit of this Guaranty Agreement by virtue of
the provisions of this Section shall have, prior to the Facility Termination
Date, any right to notice of any action or to consent to, direct or object to
any action hereunder or under any other Loan Document or otherwise in respect of
the Guarantors' Obligations (including the release or modification of any
Guarantors' Obligations or security therefor) other than in its capacity as a
Lender and only to the extent expressly provided in the Loan Documents. Each
Secured Party not a party to the Credit Agreement who obtains the benefit of
this Guaranty Agreement by virtue of the provisions of this Section shall be
deemed to have acknowledged and accepted the appointment of the Administrative
Agent pursuant to the terms of the Credit Agreement, and that with respect to
the actions and omissions of the Administrative Agent hereunder or otherwise
relating hereto that do or may affect such Secured Party, the Administrative
Agent and each of its Related Parties shall be entitled to all the rights,
benefits and immunities conferred under Article IX of the Credit Agreement.
20. Severability. The provisions of this Guaranty Agreement are independent
of and separable from each other. If any provision hereof shall for any reason
be held invalid or
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unenforceable, such invalidity or unenforceability shall not affect the validity
or enforceability of any other provision hereof, but this Guaranty Agreement
shall be construed as if such invalid or unenforceable provision had never been
contained herein.
21. Counterparts. This Guaranty Agreement may be executed in any number of
counterparts each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Guaranty
Agreement to produce or account for more than one such counterpart executed by
the Guarantors against whom enforcement is sought. Without limiting the
foregoing provisions of this Section 21, the provisions of Section 10.02(b) of
the Credit Agreement shall be applicable to this Guaranty Agreement.
22. Termination. Subject to reinstatement pursuant to Section 13 hereof,
this Guaranty Agreement and each Guaranty Joinder Agreement, and all of the
Guarantors' Obligations hereunder (excluding those Guarantors' obligations
relating to Guaranteed Liabilities that expressly survive such termination)
shall terminate on the Facility Termination Date.
23. Remedies Cumulative; Late Payments. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies of the
Administrative Agent or any other Secured Party provided by law or under the
Credit Agreement, the other Loan Documents or other applicable agreements or
instruments. The making of the Loans and other credit extensions pursuant to the
Credit Agreement and other Related Agreements shall be conclusively presumed to
have been made or extended, respectively, in reliance upon each Guarantor's
guaranty of the Guaranteed Liabilities pursuant to the terms hereof. Any amounts
not paid when due under this Guaranty Agreement shall bear interest at the
Default Rate.
24. Notices. Any notice required or permitted hereunder or under any
Guaranty Joinder Agreement shall be given, (a) with respect to each Guarantor,
at the address of B&N indicated in Schedule 10.02 of the Credit Agreement and
(b) with respect to the Administrative Agent or any other Secured Party, at the
Administrative Agent's address indicated in Schedule 10.02 of the Credit
Agreement. All such addresses may be modified, and all such notices shall be
given and shall be effective, as provided in Section 10.02 of the Credit
Agreement for the giving and effectiveness of notices and modifications of
addresses thereunder.
25. Joinder. Each Person who shall at any time execute and deliver to the
Administrative Agent a Guaranty Joinder Agreement substantially in the form
attached as Exhibit A hereto shall thereupon irrevocably, absolutely and
unconditionally become a party hereto and obligated hereunder as a Guarantor,
and all references herein and in the other Loan Documents to the Guarantors or
to the parties to this Guaranty Agreement shall be deemed to include such Person
as a Guarantor hereunder.
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26. Governing Law; Venue; Waiver of Jury Trial.
(a) THIS GUARANTY AGREEMENT AND EACH GUARANTY JOINDER AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
(b) EACH PARTY HERETO AND, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF,
EACH OTHER SECURED PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS GUARANTY AGREEMENT OR ANY GUARANTY JOINDER AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN MAY BE INSTITUTED IN ANY STATE
OR FEDERAL COURT SITTING IN THE ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
GUARANTY AGREEMENT OR A GUARANTY JOINDER AGREEMENT, IN THE CASE OF EACH
GUARANTOR AND, BY THE ACCEPTANCE OF THE BENEFITS HEREOF, IN THE CASE OF THE
SECURED PARTIES, EACH GUARANTOR AND EACH SECURED PARTY EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR
TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY SUCH COURT
IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND SUCH GUARANTOR AND SECURED
PARTY HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH GUARANTOR HERETO AND, BY ITS ACCEPTANCE OF THE BENEFITS
HEREOF, EACH SECURED PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS FOR NOTICES TO SUCH
GUARANTOR IN EFFECT PURSUANT TO SECTION 24 HEREOF, OR BY ANY OTHER METHOD
OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF
NEW YORK.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) or (c) HEREOF SHALL PRECLUDE
ANY BORROWER OR THE ADMINISTRATIVE AGENT FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT OR ANY
GUARANTY JOINDER AGREEMENT OR ANY OTHER LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE ANY GUARANTOR OR ANY OF SUCH GUARANTOR'S PROPERTY OR
ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY THE APPLICABLE
LAWS OF ANY SUCH JURISDICTION, EACH GUARANTOR HERETO AND, BY ITS
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ACCEPTANCE OF THE BENEFITS HEREOF, EACH SECURED PARTY HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY WAIVES, IN
RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO THE EXERCISE
OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER COURT OR COURTS
WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER OR RELATED TO THIS GUARANTY AGREEMENT OR ANY GUARANTY
JOINDER AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION THEREWITH,
EACH GUARANTOR AND THE ADMINISTRATIVE AGENT ON BEHALF OF THE SECURED
PARTIES HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY
SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT ANY SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY
SUCH ACTION, SUIT OR PROCEEDING.
(f) EACH PARTY HERETO AND, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF,
EACH OTHER SECURED PARTY HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY HAVE
THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO THE TERMS
HEREOF IS AN INCONVENIENT FORUM.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Guaranty Agreement as of the day and year first written above.
GUARANTORS:
DOUBLEDAY BOOK SHOPS, INC.
B&▇.▇▇▇ HOLDING CORP.
CCI HOLDINGS, INC.
B&N GENERAL PARTNER (TEXAS) CORP.
B&N LIMITED PARTNER (TEXAS) CORP.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
▇▇▇▇▇▇ & ▇▇▇▇▇ BOOKQUEST LLC
MARKETING SERVICES (MINNESOTA) CORP.
▇▇▇▇▇▇ & NOBLE SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
Signature Page 1 of 2
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Signature Page 2 of 2