Exhibit 10.3
EXECUTION COPY
GUARANTY
This GUARANTY ("Guaranty") is made as of the 28th day of
January, 1999, by BARNEYS NEW YORK, INC., a Delaware corporation (the
"Guarantor"), in favor of CITICORP USA, INC., as agent for the Lenders and the
Issuing Banks (with its successors and permitted assigns in such capacity, the
"Administrative Agent") for the ratable benefit of the Administrative Agent, the
Lenders, the Issuing Banks and the other Holders. Unless otherwise defined
herein, capitalized terms used herein shall have the meanings ascribed to them
in the Credit Agreement referred to below.
W I T N E S S E T H
WHEREAS, Barney's, Inc., Barneys America, Inc., PFP Fashions
Inc., Barneys (CA) Lease Corp., Barneys (NY) Lease Corp., Xxxxx All-American
Sportswear Corp., BNY Licensing Corp., and Barneys America (Chicago) Lease Corp.
(collectively, the "Borrowers"), the Administrative Agent, the lenders from time
to time a party thereto (the "Lenders"), the issuing banks from time to time a
party thereto (the "Issuing Banks"), the Administrative Agent and General
Electric Capital Corporation, as documentation agent, have entered into that
certain Credit Agreement, dated as of January 28, 1999 (as the same may be
amended, restated, modified or supplemented from time to time, the "Credit
Agreement");
WHEREAS, the Guarantor is the sole shareholder of Barney's,
Inc., one of the Borrowers, and will derive benefits, directly and indirectly,
from the loans and other financial accommodations made to the Borrowers pursuant
to the Credit Agreement;
WHEREAS, the Lenders, the Issuing Banks and the Administrative
Agent have required as a condition, among others, to entering into the Credit
Agreement, that the Guarantor guarantee the Obligations of the Borrowers;
NOW THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. GUARANTY. (i) For value received and in consideration of
any loan, advance or financial accommodation of any kind whatsoever heretofore,
now or hereafter made, given or granted to the Borrowers by the Lenders, the
Issuing Banks and the other Holders, the Guarantor unconditionally guarantees
for the benefit of the Administrative Agent, the Issuing Banks, the Lenders and
the other Holders the full and prompt payment when due, whether at maturity or
earlier, by reason of acceleration or otherwise, and at all times thereafter, of
all the Obligations (including, without limitation, interest accruing following
the filing of a bankruptcy petition by or against any Borrower, at the
applicable rate specified in the Credit Agreement, whether or not
such interest is allowed as a claim in bankruptcy).
(ii) At any time after the occurrence and during the
continuance of an Event of Default, the Guarantor shall pay to the
Administrative Agent, for the benefit of the Administrative Agent, the Issuing
Banks, the Lenders and the other Holders, on demand and in immediately available
funds, the full amount of the Obligations. The Guarantor further agrees to pay
and reimburse the Administrative Agent, the Issuing Banks, the Lenders and the
other Holders for, on demand and in immediately available funds, (a) all
reasonable fees, costs and expenses (including, without limitation, all court
costs and reasonable attorneys' fees, costs and expenses) paid or incurred by
such Person in: (1) endeavoring to collect all or any part of the Obligations
owing to such Person from, or in prosecuting any action against, any Borrower
relating to the Credit Agreement, this Guaranty or the transactions contemplated
thereby; (2) taking any action with respect to any security or collateral
securing such Obligations or the Guarantor's obligations hereunder; and (3)
preserving, protecting or defending the enforceability of, or enforcing, this
Guaranty or the Administrative Agent's rights hereunder (all such costs and
expenses are hereinafter referred to as the "Expenses") and (b) interest on (1)
such Obligations which do not constitute interest, (2) to the extent permitted
by applicable law, such Obligations which constitute interest, and (3) the
Expenses, from the date of demand under this Guaranty until paid in full in cash
at the per annum rate of interest described in SECTION 4.01(D) of the Credit
Agreement. The Guarantor hereby agrees that this Guaranty is an absolute
guaranty of payment and is not a guaranty of collection.
2. OBLIGATIONS UNCONDITIONAL. The Guarantor hereby agrees
that its obligations under this Guaranty shall be unconditional, irrespective
of:
(i) the validity, enforceability, avoidance or subordination
of any of the Obligations or any of the Loan Documents;
(ii) the absence of any attempt by, or on behalf of, the
Administrative Agent, any of the Issuing Banks, any of the Lenders
or any of the other Holders to collect, or to take any other action
to enforce, all or any part of the Obligations whether from or
against any of the Borrowers or any other Person;
(iii) the election of any remedy available under the Loan
Documents or applicable Requirements of Law by, or on behalf of, the
Administrative Agent, any of the Issuing Banks, any of the Lenders
or any of the other Holders with respect to all or any part of the
Obligations;
(iv) the waiver, consent, extension, forbearance or granting
of any indulgence by, or on behalf of, the Administrative Agent, any
of the Issuing Banks, any of the Lenders or any of the other Holders
with respect to any provision of any of the Loan Documents;
(v) the failure of the Administrative Agent, any of the
Issuing Banks, any of the Lenders or any of the other Holders to
take any steps to perfect and maintain its security interest in, or
to preserve its rights to, any security or collateral for the
Obligations;
(vi) the election by, or on behalf of, the Administrative
Agent, any of the Issuing Banks, any of the Lenders, or any of the
other Holders in any proceeding instituted under Chapter 11 of the
Bankruptcy Code, of the application of Section 1111(b)(2) of the
Bankruptcy Code;
(vii) any borrowing or grant of a security interest by any
Borrower, as debtor-in-possession, under Section 364 of the
Bankruptcy Code;
(viii) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of the claims against the Borrower held
by any of the Lenders, any of the Issuing Banks, the Administrative
Agent or any of the other Holders, for repayment of all or any part
of the Obligations or any Expenses; or
(ix) any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of any Borrower or
guarantor of the Obligations.
3. ENFORCEMENT; APPLICATION OF PAYMENTS. Upon the
occurrence and during the continuance of an Event of Default, the Administrative
Agent, the Issuing Banks, the Lenders and/or the other Holders may proceed
directly and at once, without notice, against the Guarantor to obtain
performance of and to collect and recover the full amount, or any portion, of
the Obligations owing to such Persons, without first proceeding against any
Borrower or any other Person, or against any security or collateral for the
Obligations. Subject only to the terms and provisions of the Credit Agreement,
the Lenders and the Issuing Banks shall have the exclusive right to determine
the application of payments and credits, if any, from the Guarantor, the
Borrowers or any other Person, on account of the Obligations or any other
liability of the Guarantor to the Administrative Agent, any of the Issuing
Banks, any of the Lenders, or any of the other Holders.
4. WAIVERS. (i) The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
receivership or bankruptcy of any Borrower, protest or notice with respect to
the Obligations, all setoffs and counterclaims and all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor and notices of acceptance of this Guaranty, the benefits of all
statutes of limitation, and all other demands whatsoever (and shall not require
that the same be made on the Borrowers as a condition precedent to the
Guarantor's obligations hereunder), and covenants that this Guaranty will not be
discharged, except by complete payment (in cash) and performance of the
Obligations and any other obligations contained herein. The Guarantor further
waives all notices of the existence, creation or incurring of new or additional
Indebtedness, arising either from additional loans extended to any Borrower or
otherwise, and also waives all notices that the principal amount, or any portion
thereof, and/or any interest on any instrument or document evidencing all or any
part of the Obligations is due, notices of any and all proceedings to collect
from the maker, any endorser or any other guarantor of all or any part of the
Obligations, or from any other Person, and, to the extent permitted by law,
notices of exchange, sale,
surrender or other handling of security or collateral given to the
Administrative Agent, any of the Issuing Banks or any of the Lenders to secure
payment of all or any part of the Obligations.
(ii) The Administrative Agent, the Issuing Banks, the Lenders
and/or the other Holders are hereby authorized, without notice or demand and
without affecting the liability of the Guarantor hereunder, from time to time,
(a) to renew, extend, accelerate or otherwise change the time for payment of, or
other terms relating to, all or any part of the Obligations, or to otherwise
modify, amend or change the terms of any of the Loan Documents; (b) to accept
partial payments on all or any part of the Obligations; (c) to take and hold
security or collateral for the payment of all or any part of the Obligations,
this Guaranty, or any other guaranties of all or any part of the Obligations or
other liabilities of the Borrowers, (d) to exchange, enforce, waive and release
any such security or collateral; (e) to apply such security or collateral and
direct the order or manner of sale thereof as in its discretion it may
determine; (f) to settle, release, exchange, enforce, waive, compromise or
collect or otherwise liquidate all or any part of the Obligations, this
Guaranty, any other guaranty of all or any part of the Obligations, and any
security or collateral for the Obligations or for any such guaranty. Any of the
foregoing may be done in any manner, without affecting or impairing the
obligations of the Guarantor hereunder.
5. REPRESENTATIONS AND WARRANTIES.
(a) ORGANIZATION, CORPORATE POWER AND AUTHORITY. The
Guarantor (i) is duly organized, validly existing and in good standing under the
laws of the State of Delaware, (ii) is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each jurisdiction
in which the failure to be so qualified and in good standing shall have or is
reasonably likely to have a Material Adverse Effect, and (iii) has all requisite
corporate power and authority to own, operate and encumber its Property and to
conduct its business as presently conducted and to execute, deliver and perform
this Guaranty and each of the Loan Documents to which it is a party.
(b) AUTHORIZATIONS. The execution, delivery and performance,
as the case may be, of this Guaranty and each other Loan Document to which it is
a party and the consummation of the transactions contemplated thereby, have been
duly approved pursuant to the Final Order (as defined in the Plan of
Reorganization) and, to the extent required by law, by its Board of Directors
and its shareholders and such approvals have not been rescinded, revoked or
modified in any manner. No other corporate action or proceedings on its part is
necessary to consummate such transactions.
(c) NO CONFLICT. The execution, delivery and performance of
the Guaranty and each other Loan Document to which the Guarantor is a party do
not and will not (i) conflict with the Constituent Documents of the Guarantor,
(ii) constitute a tortutious interference with any Contractual Obligations of
any Person, (iii) conflict with, or result in a breach of, or constitute (with
or without notice or lapse of time or both) a default under any Requirement of
Law or under any material Contractual Obligation of such member, or require the
termination of
any material Contractual Obligation, (iv) result in or require the creation or
imposition of any Lien whatsoever upon any of its Property or assets, except for
Liens created by the Loan Documents or (v) require any approval of the
Guarantor's shareholders that has not been obtained.
(d) EXECUTION, DELIVERY AND ENFORCEABILITY. Each of this
Guaranty and each other Loan Document to which the Guarantor is a party has been
duly executed and delivered by the Guarantor and is the legal, valid and binding
obligation of the Guarantor, enforceable against the Guarantor in accordance
with its terms.
(e) GOVERNMENTAL CONSENTS, ETC. The execution, delivery and
performance of each Loan Document to which the Guarantor is a party do not and
will not require any registration with, consent or approval of or notice to or
other action of, with or by any Governmental Authority, except (i) filings,
consents or notices which have been made, obtained or given or, in timely
manner, shall be made, obtained or given and (ii) filings necessary to perfect
the security interest in the Collateral pledged by the Guarantor. The Guarantor
is not subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act or the Investment
Company Act of 1940, or any other federal or state statute or regulation which
limits its ability to incur indebtedness or its ability to consummate the
transactions contemplated in the Loan Documents, except federal statutes
regarding margin rules.
(f) REQUIREMENTS OF LAW. The Guarantor is in compliance with
all Requirements of Law applicable to it and its business, in each case where
the failure to so comply individually or in the aggregate shall have or is
reasonably likely to have a Material Adverse Effect.
(g) SOLVENCY. After giving effect to the transactions
contemplated in the Loan Documents and the Plan of Reorganization and the Loans
to be made on the Closing Date and each such other date as Loans requested
hereunder are made and the disbursement of the proceeds of such Loans, the
Guarantor is Solvent.
6. AFFIRMATIVE COVENANTS. The Guarantor covenants and
agrees that, so long as any part of the Obligations shall remain unpaid or any
Lender shall have any Commitment under the Credit Agreement, the Guarantor will:
(a) CORPORATE EXISTENCE. Maintain its corporate existence
and preserve and keep in full force and effect its rights and franchises
material to its business except where the board of directors of Holdings
determines that the maintenance or preservation of such rights and franchises is
not in the best interest of Holdings and the failure to so maintain or preserve
would not have or be reasonably likely to have a Material Adverse Effect.
(b) COMPLIANCE WITH LAWS. Comply with all Requirements of
Law and obtain as needed all Permits necessary for the Guarantor's operations
and maintain such Permits
in good standing, except, in each case, where the failure to do so would not
have or be reasonably likely to have a Material Adverse Effect.
(c) INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Permit any authorized representative(s) designated by the Administrative Agent
or any Lender to visit and inspect any of the Properties of the Guarantor, to
examine, audit, check and make copies of its financial and accounting records,
books, journals, orders, receipts and any correspondence and other data relating
to its business or the transactions contemplated hereby and by the other Loan
Documents, and to discuss its affairs, finances and accounts with its officers
and independent certified public accountants, upon reasonable notice and at such
times during normal business hours, as often as may be reasonably requested. All
costs and expenses incurred by the Administrative Agent or, after the occurrence
and during the continuance of any Event of Default, any Lender, in each case as
a result of such inspection, audit or examination conducted pursuant to this
SECTION 6(C) shall be paid by the Guarantor.
7. NEGATIVE COVENANTS. The Guarantor covenants and agrees
that, so long as any part of the Obligations shall remain unpaid or any Lender
shall have any Commitment under the Credit Agreement, the Guarantor will not:
(a) BUSINESS. Enter into or conduct any business or engage
in any activity except in connection with (i) the ownership of the capital stock
of Barneys, (ii) the performance of its Obligations under the Loan Documents to
which it is a party, and (iii) the performance of its obligations set forth in
the Plan of Reorganization.
(b) LIENS. Directly or indirectly create, incur assume or
suffer to exist any Lien on or with respect to any of its Property except Liens
created by or pursuant to the Loan Documents and Customary Permitted Liens.
(c) INDEBTEDNESS. Directly or indirectly create, incur,
assume or otherwise become or remain directly or indirectly liable with respect
to any Indebtedness except in respect of (i) accounts payable on ordinary terms
incurred in the ordinary course of the business activities permitted under this
Guaranty or (ii) Indebtedness permitted under SECTION 9.01 of the Credit
Agreement.
(d) INVESTMENTS. Directly or indirectly make or own any
Investments other than Investments in a Borrower or as otherwise permitted under
the Credit Agreement and Cash Equivalents in a Borrower and Treasury Notes
required pursuant to the Plan of Reorganization.
(e) ACCOMMODATION OBLIGATIONS. Directly or indirectly create
or become liable or be liable with respect to any Accommodation Obligation
except Accommodation Obligations (i) under the Tax Sharing Agreement, (ii) set
forth in the Plan of Reorganization and (iii) in respect of Indebtedness
permitted under SECTION 9.01 of the Credit Agreement and other Obligations
permitted under SECTION 9.05 of the Credit Agreement.
(f) RESTRICTED JUNIOR PAYMENTS. Declare or make any
Restricted Payments other than (i) the payment of dividends to the holders of
the Preferred Stock so long as no Default or Event of Default has occurred and
is continuing prior to and after giving effect thereto and (ii) purchases of the
Capital Stock of Holdings to the extent permitted under SECTION 9.06(IV) AND
9.06(V) of the Credit Agreement.
(g) CONSTITUENT DOCUMENTS. Amend, modify or otherwise change
in any material respect any of the terms or provisions in any of its Constituent
Documents as in effect on the Closing Date without the prior written consent of
the Requisite Lenders, which consent shall not be unreasonably withheld.
(h) SUBSIDIARIES. Create, organize, incorporate or acquire
any Subsidiaries other than the Borrowers and any other Subsidiaries permitted
under SECTION 9.04(VII) of the Credit Agreement.
(i) RESTRICTIONS ON FUNDAMENTAL CHANGES. (a) Enter into any
merger or consolidation, or liquidate, wind-up or dissolve (or suffer any
liquidation or dissolution), or convey, lease, sell, transfer or otherwise
dispose of, in one transaction or series of transactions, all or substantially
all its business or Property, whether now or hereafter acquired or (b) enter
into any partnership or joint venture.
8. SETOFF. At any time after all or any part of the
Obligations have become due and payable (by acceleration or otherwise), the
Lenders, the Issuing Banks or the other Holders may, without notice to the
Guarantor and regardless of the acceptance of any security or collateral for the
payment hereof, appropriate and apply toward the payment of all or any part of
the Obligations owing to such Persons (i) any Indebtedness due or to become due
from the Lenders or the Issuing Banks to the Guarantor, and (ii) any moneys,
credits or other property belonging to the Guarantor, at any time held by or
coming into the possession of the Lenders or the Issuing Banks or their
respective affiliates.
9. FINANCIAL INFORMATION. The Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Borrowers and any and all other endorsers and/or other guarantors of all or any
part of the Obligations, and of all other circumstances bearing upon the risk of
nonpayment of the Obligations, or any part thereof, that diligent inquiry would
reveal, and the Guarantor hereby agrees that the Administrative Agent, the
Issuing Banks and the Lenders shall have no duty to advise the Guarantor of
information known to it regarding such condition or any circumstances. In the
event the Administrative Agent, any of the Issuing Banks or any of the Lenders,
in its sole discretion, undertakes at any time or from time to time to provide
any such information to the Guarantor, the Administrative Agent, such Issuing
Bank or such Lender shall be under no obligation (i) to undertake any
investigation not a part of its regular business routine, (ii) to disclose any
information which the Administrative Agent, such Issuing Bank or such Lender,
pursuant to accepted or reasonable commercial finance or banking practices,
wishes to maintain confidential or (iii) to make any other or future disclosures
of such information or any other information to the Guarantor.
10. NO MARSHALLING; REINSTATEMENT. The Guarantor consents
and agrees that none of the Administrative Agent, any of the Issuing Banks or
any of the Lenders or any Person acting for or on behalf of the Administrative
Agent shall be under any obligation to xxxxxxxx any assets in favor of the
Guarantor or against or in payment of any or all of the Obligations. The
Guarantor further agrees that, to the extent that the Borrower or any other
guarantor of all or any part of the Obligations makes a payment or payments to
the Administrative Agent, the Lenders or the Issuing Banks, or the
Administrative Agent, or any Lender or Issuing Bank receives any proceeds of
Collateral, which payment, payments or proceeds, or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a Borrower, the Guarantor, such other guarantor
or any other Person, or their respective estates, trustees, receivers or any
other party, including, without limitation, the Guarantor under any bankruptcy
law, state or federal law, common law or equitable cause, then, to the extent of
such payment or repayment, the part of the Obligations which has been paid,
reduced or satisfied by such amount shall be reinstated and continued in full
force and effect as of the time immediately preceding such initial payment,
reduction or satisfaction.
11. SUBROGATION. Until the Obligations have been paid in
full, the Guarantor hereby agrees that it (i) shall have no right of subrogation
with respect to such Obligations (under contract, Section 509 of the Bankruptcy
Code or otherwise) or any other right of indemnity, reimbursement or
contribution, and (ii) hereby waives any right to enforce any remedy which the
Administrative Agent, any of the Lenders or any of the Issuing Banks now have or
may hereafter have against the Borrower, any endorser or any other guarantor of
all or any part of the Obligations or any other Person, and the Guarantor hereby
waives any benefit of, and any right to participate in, any security or
collateral given to the Administrative Agent, the Lenders and the Issuing Banks
to secure the payment or performance of all or any part of the Obligations or
any other liability of the Borrower to the Administrative Agent, the Lenders and
the Issuing Banks.
12. SUBORDINATION. The Guarantor agrees that any and all
claims of the Guarantor against the Borrowers, any endorser or other guarantor
of all or any part of the Obligations, or against any of their respective
properties, shall be subordinated to all of the Obligations. Notwithstanding any
right of the Guarantor to ask for, demand, xxx for, take or receive any payment
from any Borrower, all rights and Liens of the Guarantor, whether now or
hereafter arising and howsoever existing, in any assets of the Borrowers
(whether constituting part of the Collateral or otherwise) shall be and hereby
are subordinated to the rights of the Administrative Agent, the Issuing Banks or
the Lenders in those assets. The Guarantor shall have no right to possession of
any such asset or to foreclose upon any such asset, whether by judicial action
or otherwise, unless and until all of the Obligations shall have been fully paid
and satisfied and all financing arrangements between the Borrowers and the
Lenders and the Issuing Banks have been terminated. If all or any part of the
assets of the Borrowers, or the proceeds thereof, are subject to any
distribution, division or application to the creditors of the Borrower, whether
partial or complete, voluntary or involuntary, and whether by reason of
liquidation, bankruptcy, arrangement, receivership, assignment for the benefit
of creditors or any other action or
proceeding, or if the business of any Borrower is dissolved or if substantially
all of the assets of any Borrower are sold, then, and in any such event, any
payment or distribution of any kind or character, either in cash, securities or
other property, which shall be payable or deliverable upon or with respect to
any Indebtedness of the Borrowers to the Guarantor ("Borrower Indebtedness")
shall be paid or delivered directly to the Lenders and the Issuing Banks for
application on the Obligations, due or to become due, until such Obligations
shall have first been fully paid and satisfied. The Guarantor irrevocably
authorizes and empowers the Administrative Agent and each of the Lenders and
each of the Issuing Banks to demand, xxx for, collect and receive every such
payment or distribution and give acquittance therefor and to make and present
for and on behalf of the Guarantor such proofs of claim and take such other
action, in the Administrative Agent's, such Lender's or Issuing Bank's own name
or in the name of the Guarantor or otherwise, as the Administrative Agent, any
Lender or Issuing Bank may deem necessary or advisable for the enforcement of
this Guaranty. After the occurrence and during the continuance of an Event of
Default, each Lender and each Issuing Bank may vote, with respect to the
Obligations owed to it, such proofs of claim in any such proceeding, receive and
collect any and all dividends or other payments or disbursements made thereon in
whatever form the same may be paid or issued and apply the same on account of
any of the Obligations. After the occurrence and during the continuance of an
Event of Default, should any payment, distribution, security or instrument or
proceeds thereof be received by the Guarantor upon or with respect to the
Borrower Indebtedness prior to the satisfaction of all of the Obligations and
the termination of all financing arrangements between the Borrowers and the
Lenders and the Issuing Banks, the Guarantor shall receive and hold the same in
trust, as trustee, for the benefit of the Administrative Agent, the Issuing
Banks and the Lenders and shall forthwith deliver the same to the Administrative
Agent in precisely the form received (accompanied by the endorsement or
assignment of the Guarantor where necessary), for application to the
Obligations, due or not due, and, until so delivered, the same shall be held in
trust by the Guarantor as the property of the Administrative Agent, the Issuing
Banks and the Lenders. After the occurrence and during the continuance of an
Event of Default, if the Guarantor fails to make any such endorsement or
assignment to the Administrative Agent, the Issuing Banks or the Lenders, the
Administrative Agent, the Issuing Banks or the Lenders or any of its officers or
employees are hereby irrevocably authorized to make the same. The Guarantor
agrees that until the Obligations have been paid in full in cash and the Credit
Agreement and the Commitments have been terminated, the Guarantor will not
assign or transfer to any Person (other than to the Administrative Agent or any
Borrower) any claim the Guarantor has or may have against any of the Borrowers.
13. ENFORCEMENT; AMENDMENTS; WAIVERS. No delay on the part
of the Administrative Agent, any of the Issuing Banks or any of the Lenders in
the exercise of any right or remedy arising under this Guaranty, the Credit
Agreement, any of the other Loan Documents or otherwise with respect to all or
any part of the Obligations, the Collateral or any other guaranty of or security
for all or any part of the Obligations shall operate as a waiver thereof, and no
single or partial exercise by the Administrative Agent, any of the Issuing Banks
or any of the Lenders of any such right or remedy shall preclude any further
exercise thereof. No modification or waiver of any of the provisions of this
Guaranty shall be binding upon the Administrative Agent, any of the Issuing
Banks or any of the Lenders, except as expressly set forth in a writing
duly signed and delivered by the Administrative Agent. Failure by the
Administrative Agent, or any of the Lenders at any time or times hereafter to
require strict performance by the Borrowers, any other guarantor of all or any
part of the Obligations or any other Person of any of the provisions,
warranties, terms and conditions contained in any of the Loan Documents now or
at any time or times hereafter executed by such Persons and delivered to the
Administrative Agent, any of the Issuing Banks or any of the Lenders shall not
waive, affect or diminish any right of the Administrative Agent, any of the
Issuing Banks or any of the Lenders at any time or times hereafter to demand
strict performance thereof and such right shall not be deemed to have been
waived by any act or knowledge of the Administrative Agent, any of the Issuing
Banks or any of the Lenders, or its agents, officers or employees, unless such
waiver is contained in an instrument in writing, directed and delivered to the
Borrower or the Guarantor, as applicable, specifying such waiver, and is signed
by the Administrative Agent. No waiver of any Event of Default by the Lenders
shall operate as a waiver of any other Event of Default or the same Event of
Default on a future occasion, and no action by the Administrative Agent, any of
the Issuing Banks or any of the Lenders permitted hereunder shall in any way
affect or impair the Administrative Agent's, any Issuing Bank's or any Lender's
rights and remedies or the obligations of the Guarantor under this Guaranty. Any
determination by a court of competent jurisdiction of the amount of any
principal and/or interest owing by the Borrower to the Administrative Agent, the
Lenders and the Issuing Banks shall be conclusive and binding on the Guarantor
irrespective of whether the Guarantor was a party to the suit or action in which
such determination was made.
14. EFFECTIVENESS; TERMINATION. This Guaranty shall become
effective against the Guarantor upon its execution by the Guarantor and shall
continue in full force and effect and may not be terminated or otherwise revoked
until the Obligations shall have been fully paid and discharged and the
Commitments shall have been terminated. If, notwithstanding the foregoing, the
Guarantor shall have any right under applicable law to terminate or revoke its
obligations under this Guaranty, the Guarantor agrees that such termination or
revocation shall not be effective until a written notice of such revocation or
termination, specifically referring hereto, signed by the Guarantor, is received
by the Administrative Agent. Such notice shall not affect the right and power of
the Administrative Agent, any of the Issuing Banks or any of the Lenders to
enforce rights arising prior to receipt thereof by the Administrative Agent, the
Issuing Banks and the Lenders. If any of the Lenders or Issuing Banks grants
loans or takes other action after the Guarantor terminates or revokes its
obligations under this Guaranty but before the Administrative Agent receives
such written notice, the rights of such Lender or such Issuing Bank with respect
thereto shall be the same as if such termination or revocation had not occurred.
15. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding
upon the Guarantor and upon the successors and permitted assigns of the
Guarantor and shall inure to the benefit of the Administrative Agent, the
Issuing Banks and the Lenders and their respective successors and permitted
assigns; all references herein to the Borrowers and to the Guarantor shall be
deemed to include their respective successors and permitted assigns. The
successors and permitted assigns of the Guarantor and the Borrowers shall
include, without limitation, their respective receivers, trustees or
debtors-in-possession. All references to the singular shall be deemed to include
the plural where the context so requires.
16. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED AND
ENFORCED AND THE RIGHTS AND DUTIES OF THE PARTIES SHALL BE GOVERNED IN ALL
RESPECTS IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
17. CERTAIN CONSENTS AND WAIVERS.
(A) PERSONAL JURISDICTION. (I) EACH OF THE ADMINISTRATIVE
AGENT, AND THE GUARANTOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND
ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION
OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING
ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS GUARANTY OR THE OTHER LOAN
DOCUMENTS, WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE
EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE ADMINISTRATIVE AGENT
AND THE GUARANTOR AGREES THAT A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH ACTION
OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. THE GUARANTOR
WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE
COURT CONSIDERING THE DISPUTE.
(II) THE GUARANTOR AGREES THAT THE ADMINISTRATIVE AGENT SHALL
HAVE THE RIGHT TO PROCEED AGAINST SUCH PERSON OR ITS PROPERTY IN A COURT IN ANY
LOCATION TO ENABLE THE ADMINISTRATIVE AGENT, THE ISSUING BANKS AND THE LENDERS
TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE GUARANTEED
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
THE ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY LENDER. THE GUARANTOR WAIVES
ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE
ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY LENDER MAY COMMENCE A PROCEEDING
DESCRIBED IN THIS SECTION.
(B) SERVICE OF PROCESS. THE GUARANTOR IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF
BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE GUARANTOR'S NOTICE
ADDRESS SPECIFIED PURSUANT TO SECTION 20, SUCH SERVICE TO BECOME EFFECTIVE FIVE
(5) DAYS AFTER SUCH MAILING. THE GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION
(INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT TO BRING PROCEEDINGS AGAINST THE
GUARANTOR IN THE COURTS OF ANY ISSUING BANK OR ANY LENDER OTHER JURISDICTION.
(C) WAIVER OF JURY TRIAL. EACH OF THE ADMINISTRATIVE AGENT
AND THE GUARANTOR WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG ANY OF THE ADMINISTRATIVE AGENT,
THE ISSUING BANKS, THE LENDERS OR THE GUARANTOR ARISING OUT OF OR RELATED TO
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT. ANY SUCH PERSON MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS GUARANTY WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
18. WAIVER OF BOND. The Guarantor waives the posting of any
bond otherwise required of the Administrative Agent in connection with any
judicial process or proceeding to realize on the Collateral or any other
security for the Obligations, to enforce any judgment or other court order
entered in favor of the Administrative Agent, or to enforce by specific
performance, temporary restraining order, or preliminary or permanent
injunction, this Guaranty or any other agreement or document between the
Administrative Agent, and the Guarantor.
19. ADVICE OF COUNSEL. The Guarantor represents and warrants
to the Administrative Agent that it has discussed this Guaranty and,
specifically, the provisions of SECTIONS 16 through 18 hereof, with the
Guarantor's lawyers.
20. NOTICES. Any notice, demand, request or any other
communication required or desired to be served, given or delivered hereunder
shall be in writing and shall be served, given or delivered to the attention of
Holdings, c/o Barney's, Inc., at the address as provided in Section 13.08 of the
Credit Agreement.
21. SEVERABILITY. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of
such provision or the remaining provisions of this Guaranty.
22. COLLATERAL. The Guarantor hereby acknowledges and agrees
that its obligations under this Guaranty are secured pursuant to the terms and
provisions of the applicable Loan Documents to which it is a party.
23. MERGER. This Guaranty represents the final agreement of
the Guarantor with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, subsequent oral
agreements, between the Guarantor and the Administrative Agent.
24. EXECUTION IN COUNTERPARTS. This Guaranty may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, this Guaranty has been duly executed as of
the day and year first set forth above.
BARNEYS NEW YORK, INC.
By /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive VP and CFO
Acknowledged and agreed to
as of the 28th day of January, 1999
CITICORP USA, INC., as Administrative Agent
By /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
