Exhibit 10.4
AMENDED AND RESTATED GUARANTY
AGREEMENT
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Borrower :
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Bank :
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Fossil Partners, L.P.
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Wells Fargo Bank, National
Association
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2280 N. Greenville Avenue
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1445 Ross Avenue, 3rd Floor
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Richardson, Texas 75082-4412
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MAC T5303-031
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Attention: Mike L. Kovar
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Dallas, Texas 75202
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Fax: (972) 498-9448
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Attention:
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Marguerite C. Burtzlaff
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Vice President
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Fax: (214) 969-0370
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(herein called “ Borrower ”,
whether one or more)
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(herein called “ Bank
”)
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1.
FOR VALUE RECEIVED, and in consideration of credit and financial
accommodations extended, to be extended, or continued to or for the
account of Borrower, and for other good and valuable
considerations, the undersigned, jointly and severally if more than
one (hereinafter called “ Guarantor ” or “
Guarantors ”, whether one or more), absolutely and
unconditionally guarantees the prompt and punctual payment and
performance when due (whether at its stated maturity, by
acceleration or otherwise in accordance with the loan documents) of
the Guaranteed Obligations (hereinafter defined) of Borrower to
Bank, as provided herein. This is a continuing guaranty
applicable to and guaranteeing any and all indebtedness,
obligations and liabilities of every kind and character of Borrower
to Bank, whether now existing or hereafter arising, whether due and
owing or to become due and owing, howsoever created or arising or
evidenced, whether joint or several, or joint and several, whether
absolute or contingent, and all renewals, extensions, and
rearrangements of such indebtedness, obligations or liabilities,
including any and all amounts owing or which may hereafter become
owing thereon or in connection therewith, including, without
limitation, any and all amounts of principal, interest,
attorneys’ fees, costs of collection and other amounts owing
thereunder (hereinafter called the “ Guaranteed
Obligations ”). In addition to and without limiting
the generality of the foregoing, each Guarantor hereby expressly
acknowledges and agrees that the “ Guaranteed
Obligations ” shall include, without limitation, all
loans and other indebtedness at any time and from time to time owed
or owing by Borrower to Bank under or in connection with
(a) that certain Loan Agreement dated as of September 23,
2004, by and among Borrower, Guarantors, certain other entities
affiliated with Borrower and Bank, as such Loan Agreement has been
amended and may be amended, increased, modified, supplemented,
renewed, extended, restated or replaced from time to time (the
“ Loan Agreement ”) and any other loan
agreement, credit agreement or other credit facility with Borrower
at any time and from time to time, and (b) that certain Fifth
Amended and Restated Revolving Line of Credit Note dated
November 19, 2008, in the maximum original principal amount of
$140,000,000 made by Borrower payable to the order of Bank, as such
promissory note may be amended, increased, modified, supplemented,
renewed, extended, restated or replaced from time to time (the
“ Note ”) and any other promissory note executed
by Borrower and payable to Bank at any time and from time to
time.
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2.
Each Guarantor hereby waives marshaling of assets and liabilities,
sale in inverse order of alienation, notice of acceptance of this
Guaranty and of any indebtedness, obligation or liability to which
it applies or may apply, and waives presentment and demand for
payment thereof, notice of dishonor or nonpayment thereof, notice
of intention to accelerate, notice of acceleration, protest and
notice thereof and all other notices and demands, collection or
instigation of suit or any other action by Bank in collection
thereof including any notice of default in payment thereof or other
notice to, or demand of payment therefor on, any party.
Further, each Guarantor expressly waives each and every right to
which it may be entitled by virtue of the suretyship law of the
state of Texas, including without limitation, any rights it may
have pursuant to Rule 31, Texas Rules of Civil Procedure,
Articles 1986 and 1987, Revised Civil Statutes of Texas and Chapter
34 of the Texas Business and Commerce Code.
3.
Each Guarantor jointly and severally agrees to pay to Bank its
collection costs, including any additional amount for reasonable
attorneys’ fees, but in no event to exceed the maximum amount
permitted by law, if the Guaranteed Obligations are not paid by
Guarantor upon demand when due as required herein or if this
Guaranty is enforced by suit or through probate or bankruptcy court
or through any judicial proceedings whatsoever, and, should it be
necessary to reduce Bank’s claim to judgment, such judgment
shall bear interest at the maximum rate allowed by applicable
laws.
4.
This is an absolute and unconditional guaranty of payment and not
of collection, by each Guarantor, jointly and severally in each and
every particular, and each Guarantor waives any right to require
that any action be brought against Borrower or any other person or
entity. Should Bank seek to enforce the obligations of any
Guarantor by action in any court, such Guarantor waives any
necessity, substantive or procedural, that a judgment previously be
rendered against Borrower or any other person or entity or that
Borrower or any other person or entity be joined in such cause or
that a separate action be brought against Borrower or any other
person or entity; the obligations of each Guarantor hereunder are
several from those of Borrower or any other person or entity
(including any other surety for Borrower), and are primary
obligations concerning which such Guarantor is the principal
obligor. All waivers herein contained shall be without
prejudice to Bank at its option to proceed against Borrower or any
other person or entity, whether by separate action or by
joinder. All indebtedness of Borrower to each Guarantor,
whether now existing or hereafter arising (including indebtedness
resulting from this Guaranty) is hereby assigned to Bank to the
extent of the amount of this Guaranty as security for the payment
of all obligations of Borrower to Bank. To the extent such
indebtedness of Borrower to any Guarantor (whether now existing or
hereafter arising) exceeds the amount of this Guaranty, such
indebtedness is hereby subordinated to all obligations of Borrower
to Bank. Notwithstanding any payment or payments made by any
Guarantor hereunder or any set-off or application of funds of any
Guarantor by Bank, such Guarantor shall not be entitled to be
subrogated to any of the rights of Bank against Borrower or any
collateral security of rights of offset held by Bank for the
payment of the Guaranteed Obligations.
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5.
Bank may, at its option, at any time, without the consent of or
notice to any Guarantor, without incurring responsibility to any
Guarantor, without impairing or releasing the obligations of any
Guarantor under this Guaranty, upon or without any terms or
conditions and in whole or in part (a) change the manner,
place or terms of payment or change or extend the time of payment
of or renew, as often and for such periods as Bank may determine,
or increase or otherwise alter any of the Guaranteed Obligations of
Borrower hereby guaranteed, or any liabilities incurred directly or
indirectly hereunder, and the guaranty herein made shall apply to
the obligations and liabilities of the Borrower changed, extended,
renewed, increased or altered in any manner, (b) sell,
exchange, release, surrender, realize upon or otherwise deal with
in any manner and in any order any property at any time pledged or
mortgaged to secure or securing the Guaranteed Obligations or any
liabilities incurred directly or indirectly hereunder or any offset
against any said liabilities, (c) exercise or refrain from
exercising any rights against Borrower or others, or otherwise act
or refrain from acting, (d) settle or compromise any
Guaranteed Obligations or liabilities hereby incurred, and may
subordinate the payment of all or any part of such obligations or
liabilities to the payment of any obligations or liabilities which
may be due to Bank or others, and (e) apply any sums paid to
any liability or liabilities of Borrower to Bank regardless of what
liability or liabilities of Borrower to Bank remain unpaid.
Bank may, at its option, without the consent of or notice to any
Guarantor, apply to the payment of the liability created by this
Guaranty, at any time after such liability becomes payable, any
monies, property, or balance on deposit belonging to any
Guarantor.
6.
It is the intention of the parties hereto to comply with applicable
usury laws; accordingly, it is agreed that, notwithstanding any
provision to the contrary in the Guaranteed Obligations or in this
Guaranty, in any note or other instrument, or in any documents
securing payment thereof or hereof, or otherwise relating thereto
or hereto, no such provision shall require the payment or permit
the collection of interest in excess of the maximum permitted by
such laws. If any excess of interest in such respect is
provided for, or shall be adjudged to be so provided for, then in
such event (a) the provisions of this Section shall
govern and control, (b) neither any Guarantor nor any
Guarantor’s heirs, successors or assigns or any other party
liable for the payment hereof shall be obligated to pay the amount
of such interest to the extent that it is the excess of the maximum
amount permitted by such laws, (c) any such excess which may
have been collected shall be, at Bank’s option, either
applied as a credit against the then unpaid principal amount owing
on the Guaranteed Obligations or refunded, and (d) the
effective rate of interest covered by this Guaranty shall be
automatically subject to reduction to the maximum lawful rate
allowed under applicable usury laws.
7.
Each Guarantor agrees that suit may be brought against such
Guarantor, jointly and severally, and against one or more of
Guarantors, less than all, with
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