EXHIBIT 10.114
UNCONDITIONAL GUARANTY OF PERFORMANCE
As used in this guaranty (herein "Guaranty"), the following terms shall
have the following meanings:
"FMG": Federated Merchandising Group, a division of Federated Department Stores,
Inc.
"PB": Private Brands, Inc., a California Corporation.
"GUARANTOR": Tarrant Apparel Group, a California Corporation.
"AGREEMENT": Exclusive Distribution Agreement between FMG and PB dated as of
April 1, 2003.
"GUARANTEED OBLIGATIONS": All obligations which PB presently has or hereafter
may have under the Agreement, including the performance of all obligations
thereunder.
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and in order to induce FMG to enter into the
Agreement, the undersigned guarantor, as parent of PB (herein "Guarantor")
guarantees to FMG, the full and prompt performance by PB of the Guaranteed
Obligations, as set forth in the Agreement.
Guarantor agrees that if the maturity of any of the Guaranteed
Obligations is accelerated, by default or otherwise, such shall also be deemed
accelerated for the purposes of this Guaranty; provided that, nothing herein
shall be deemed to require FMG to institute suit against PB prior to enforcing
this Guaranty.
This Guaranty is a continuing guaranty and shall remain in full force
and effect until the performance in full of the Guaranteed Obligations and of
any other obligations under this Guaranty.
If PB undergoes any change in its ownership or organizational structure
or otherwise assigns, transfers or delegates its obligations to any assignee or
transferee resulting from the operation of any assignment or transfer permitted
pursuant to the Agreement, this Guaranty shall continue all of the Guaranteed
Obligations of the new or substituted legal entity.
This Guaranty shall survive any and all bankruptcy or insolvency
proceedings of Guarantor to the extent any of the Guaranteed Obligations
survive.
Guarantor agrees that a final judgment in any action or proceeding with
respect to this Guaranty shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Guarantor agrees that its obligations hereunder shall not be impaired
in any manner whatsoever by: (a) any waivers granted by FMG to PB; (b) any
bankruptcy, extensions, moratoria or other relief granted to PB pursuant to any
statute presently in force or hereafter enacted; or (c) any defenses available
to a surety under applicable law. Guarantor hereby waives notice of FMG's
acceptance of this Guaranty. Upon making any payment with respect to PB
hereunder, the Guarantor shall be subrogated to the rights of FMG against PB
with respect to such payment, provided that the Guarantor shall not enforce any
payment by way of subrogation until all amounts payable by PB under the
Agreement have been paid in full.
Guarantor hereby waives personal service of process. Service of process
and required notices will be deemed properly served if sent by certified or
registered mail directed to Guarantor at its address set forth below. Such
service shall be deemed completed on the third business day after such process
or notice is so mailed.
The obligations hereunder of Guarantor shall be binding upon its
respective successors, assigns and legal representatives. This Guaranty shall
inure to the benefit of FMG and its successors and assigns. No delay on the part
of FMG in exercising any right hereunder or in taking any action to collect or
enforce payment of the Guaranteed Obligation against PB of the Guaranteed
Obligations shall operate as a waiver of any right, or in any manner prejudice
FMG's rights against Guarantor. Guarantor shall reimburse FMG for all expenses
incurred by it in the enforcement of any of its rights against PB and Guarantor
(including costs and reasonable attorney's fees). Guarantor agrees that FMG may
insert herein, after guarantor's execution of this Guaranty, the date of the
Agreement. LEGAL RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
The undersigned corporation warrants for itself that it is authorized
by law and by its articles of incorporation to execute this Guaranty, and the
person signing the same warrants that (s)he is specifically authorized thereunto
by a duly adopted resolution of the board of directors or the by-laws of
Guarantor.
EACH PARTY HERETO WAIVES THE RIGHT OF TRIAL BY JURY IN THE EVENT OF ANY
LITIGATION BETWEEN ANY OF THE PARTIES HERETO WITH RESPECT TO ANY MATTERS ARISING
UNDER THIS GUARANTY.
This Guaranty constitutes the entire agreement between the parties with
respect to the subject matter hereof. If any term or provision of this Guaranty
or application thereof shall be invalid or unenforceable, the remainder of this
Guaranty shall remain in full force and effect.
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IN WITNESS WHEREOF, Guarantor has caused this instrument to be executed
as of the date set forth below.
GUARANTOR:
Tarrant Apparel Group
00 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Chairman and CEO
Date: April 1, 2003
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K-Unconditional Guaranty of Performance
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