EXHIBIT 10.7
SUBSIDIARY GUARANTY
Dated April 24, 1998
From
THE PARTIES LISTED ON THE SIGNATURE PAGES HEREOF
as SUBSIDIARY GUARANTORS,
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in favor of
THE SECURED PARTIES REFERRED TO IN
THE CREDIT AGREEMENT
REFERRED TO HEREIN
TABLE OF CONTENTS
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Page
SECTION 1. Subsidiary Guaranty; Limitation of Liability............... 1
SECTION 2. Subsidiary Guaranty Absolute............................... 2
SECTION 3. Waiver..................................................... 3
SECTION 4. Subrogation................................................ 4
SECTION 5. Payments Free and Clear of Taxes, Etc...................... 5
SECTION 6. Representations and Warranties............................. 7
SECTION 7. Covenants.................................................. 9
SECTION 8. Amendments, Etc............................................ 10
SECTION 9. Notices, Etc............................................... 10
SECTION 10. No Waiver; Remedies....................................... 10
SECTION 11. Right of Set-off.......................................... 10
SECTION 12. Indemnification........................................... 11
SECTION 13. Continuing Subsidiary Guaranty; Assignments
under the Credit Agreement............................... 11
SECTION 14. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.... 11
SUBSIDIARY GUARANTY, dated April 24, 1998 made by the parties listed
on the signature pages hereof (each such party, a "Subsidiary Guarantor"), in
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favor of the Secured Parties (as defined in the Credit Agreement referred to
below).
PRELIMINARY STATEMENT. The Lender Parties and Banque Nationale de
Paris, as Swing Line Bank and as Agent, are parties to a Credit Agreement dated
as of April 24, 1998 (said agreement, as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the "Credit
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Agreement", the terms defined therein and not otherwise defined herein being
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used herein as therein defined) with Iron Age Corporation, a Delaware
corporation (the "Borrower"). Each Subsidiary Guarantor may receive a portion
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of the proceeds of the Advances under the Credit Agreement and will derive
substantial direct and indirect benefit from the transactions contemplated by
the Credit Agreement. It is a condition precedent to the making of Advances and
the issuance of Letters of Credit by the Lender Parties under the Credit
Agreement and the entry by the Hedge Banks into Secured Hedge Agreements with
the Borrower from time to time that each Subsidiary Guarantor shall have
executed and delivered this Subsidiary Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lender Parties to make Advances and to issue Letters of Credit under
the Credit Agreement, each Subsidiary Guarantor, jointly and severally with each
other Subsidiary Guarantor, hereby agrees as follows:
SECTION 1. Subsidiary Guaranty; Limitation of Liability. (a) Each
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Subsidiary Guarantor hereby absolutely, unconditionally and irrevocably
guarantees the punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations of each other Loan Party now or
hereafter existing under the Loan Documents, whether for principal, interest,
fees, expenses or otherwise (such Obligations being the "Guaranteed
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Obligations"), and agrees to pay any and all reasonable expenses (including
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counsel fees and expenses) incurred by the Agent or any other Secured Party in
enforcing any rights under this Subsidiary Guaranty or any other Loan Document.
Without limiting the generality of the foregoing, each Subsidiary Guarantor's
liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by any other Loan Party to the Agent or any other
Secured Party under the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Loan Party.
(b) (i) Each Subsidiary Guarantor and by its acceptance of this
Subsidiary Guaranty, the Agent and each other Secured Party, hereby
confirms that it is the intention of all such parties that this Subsidiary
Guaranty not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent
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Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal
or state law to the extent applicable to this Subsidiary Guaranty. To
effectuate the foregoing intention, the Agent, the other Secured Parties
and the Subsidiary Guarantors hereby irrevocably agree that the Obligations
of each Subsidiary Guarantor under this Subsidiary Guaranty shall not
exceed the greater of (A) the net benefit realized by such Subsidiary
Guarantor from the proceeds of the Advances made from time to time by the
Borrower to such Subsidiary Guarantor or any subsidiary of such Subsidiary
Guarantor and (B) the maximum amount that will, after giving effect to such
maximum amount and all other contingent and fixed liabilities of such
Subsidiary Guarantor that are relevant under such laws, and after giving
effect to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Subsidiary Guarantor in respect
of the Obligations of such other Subsidiary Guarantor under this Subsidiary
Guaranty, result in the Obligations of such Subsidiary Guarantor under this
Subsidiary Guaranty not constituting a fraudulent transfer or conveyance.
For purposes hereof, "Bankruptcy Law" means Title 11, U.S. Code, or any
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similar Federal or state law for the relief of debtors.
(ii) Each Subsidiary Guarantor agrees that in the event any payment
shall be required to be made to the Secured Parties under this Subsidiary
Guaranty or any other guaranty, such Subsidiary Guarantor will contribute,
to the maximum extent permitted by law, such amounts to each other
Subsidiary Guarantor and each other guarantor so as to maximize the
aggregate amount paid to the Secured Parties under the Loan Documents.
SECTION 2. Subsidiary Guaranty Absolute. Each Subsidiary Guarantor
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guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Loan Documents, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of the Agent or any other Secured Party with respect thereto. The
Obligations of each Subsidiary Guarantor under this Subsidiary Guaranty are
independent of the Guaranteed Obligations or any other Obligations of any other
Loan Party under the Loan Documents, and a separate action or actions may be
brought and prosecuted against such Subsidiary Guarantor to enforce this
Subsidiary Guaranty, irrespective of whether any action is brought against the
Borrower or any other Loan Party or whether the Borrower or any other Loan Party
is joined in any such action or actions. The liability of each Subsidiary
Guarantor under this Subsidiary Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and each Subsidiary Guarantor hereby irrevocably
waives to the fullest extent it may legally and effectively do so any defenses
it may now or hereafter have in any way relating to, any or all of the
following:
(a) any lack of validity or enforceability of any Loan Document or
any agreement or instrument relating thereto;
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(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under the Loan Documents, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to any Loan Party or any
of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral,
or any taking, release or amendment or waiver of or consent to departure
from any other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of Collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any Collateral for all or any of the Guaranteed Obligations
or any other Obligations of any other Loan Party under the Loan Documents
or any other assets of any Loan Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to the Borrower, the
Parent Guarantor or any Subsidiary Guarantor any information relating to
the financial condition, operations, properties or prospects of any other
Loan Party or any Subsidiary of any Loan Party now or in the future known
to any Secured Party (each Subsidiary Guarantor waiving any duty on the
part of the Secured Parties to disclose such information); or
(g) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
the Agent or any other Secured Party that might otherwise constitute a
defense available to, or a discharge of, the Borrower, any Subsidiary
Guarantor or any other guarantor or surety.
This Subsidiary Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Secured Party or any other Person
upon the insolvency, bankruptcy or reorganization of the Borrower or any other
Loan Party or otherwise, all as though such payment had not been made.
SECTION 3. Waivers and Acknowledgments. (a) Each Subsidiary
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Guarantor hereby waives (to the extent permitted by applicable law) promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this
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Subsidiary Guaranty and any requirement that the Agent, or any other Secured
Party protect, secure, perfect or insure any Lien or any property subject
thereto or exhaust any right or take any action against any Loan Party or any
other Person or any collateral.
(b) Each Subsidiary Guarantor hereby waives (to the extent permitted
by applicable law) any right to revoke this Subsidiary Guaranty and acknowledges
that this Subsidiary Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
(c) Each Subsidiary Guarantor acknowledges that the Agent may,
without notice to or demand upon such Subsidiary Guarantor and without affecting
the liability of such Subsidiary Guarantor under this Subsidiary Guaranty,
foreclose under any Mortgage by nonjudicial sale, and the Subsidiary Guarantor
hereby waives any defense to the recovery by the Agent and the other Secured
Parties against such Subsidiary Guarantor of any deficiency after such
nonjudicial sale and any defense or benefits that may be afforded by applicable
law.
(d) Each Subsidiary Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in this
Section 3 are knowingly made in contemplation of such benefits.
SECTION 4. Subrogation. No Subsidiary Guarantor will exercise any
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rights that it may now or hereafter acquire against the Borrower or any other
insider guarantor that arise from the existence, payment, performance or
enforcement of such Subsidiary Guarantor's Obligations under this Subsidiary
Guaranty or any other Loan Document, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification and any
right to participate in any claim or remedy of the Agent or any other Secured
Party against the Borrower or any other insider guarantor or any collateral,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Borrower or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Obligations and all other amounts payable under this Subsidiary
Guaranty shall have been paid in full in cash, all Secured Hedge Agreements and
the Commitments shall have expired or terminated. If any amount shall be paid
to any Subsidiary Guarantor in violation of the preceding sentence at any time
prior to the later of the payment in full in cash of the Guaranteed Obligations
and all other amounts payable under this Subsidiary Guaranty and the later of
(i) the Termination Date and (ii) the expiration or termination of all Secured
Hedge Agreements, such amount shall be held in trust for the benefit of the
Agent and the other Secured Parties and shall forthwith be paid to the Agent to
be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Subsidiary Guaranty, whether
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matured or unmatured, in accordance with the terms of the Loan Documents, or to
be held as collateral for any Guaranteed Obligations or other amounts payable
under this Subsidiary Guaranty thereafter arising. If (A) any Subsidiary
Guarantor shall make payment to the Agent or any other Secured Party of all or
any part of the Guaranteed Obligations, (B) all of the Guaranteed Obligations
and all other amounts payable under this Subsidiary Guaranty shall be paid in
full in cash and (C) the Termination Date shall have occurred and all Secured
Hedge Agreements shall have expired or terminated, the Agent and the other
Secured Parties will, at such Subsidiary Guarantor's request and expense,
execute and deliver to such Subsidiary Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to such Subsidiary Guarantor of an interest in the
Guaranteed Obligations resulting from such payment by such Subsidiary Guarantor.
SECTION 5. Payments Free and Clear of Taxes, Etc. (a) Any and all
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payments by any Subsidiary Guarantor hereunder shall be made, in accordance with
Section 2.12 of the Credit Agreement, free and clear of and without deduction
for any Taxes. If any Subsidiary Guarantor shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder to any Lender Party or
the Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 5) such Lender Party or the Agent (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Subsidiary Guarantor shall make such
deductions and (iii) such Subsidiary Guarantor shall pay the full amount
deducted to the relevant taxation authority or other governmental authority in
accordance with applicable law.
(b) In addition, each Subsidiary Guarantor agrees to pay any present
or future Other Taxes.
(c) Each Subsidiary Guarantor shall indemnify the Agent and each other
Secured Party for and hold each of them harmless against the full amount of
Taxes and Other Taxes, and for the full amount of taxes of any kind imposed by
any jurisdiction on amounts payable under this Section paid by the Agent or such
other Secured Party (as the case may be) and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date the
Agent or such other Secured Party (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes, such
Subsidiary Guarantor shall furnish to the Agent, at its address referred to in
Section 9.02 of the Credit Agreement, the original receipt of payment thereof or
a certified copy of such receipt. In the case of any payment hereunder by or on
behalf of any Subsidiary Guarantor through an account or branch outside the
United States or on behalf of such Subsidiary Guarantor by a payor that is not a
United States person, if such Subsidiary Guarantor determines that no Taxes
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are payable in respect thereof, such Subsidiary Guarantor shall furnish, or
shall cause such payor to furnish, to the Agent, at such address, an opinion of
counsel acceptable to the Agent stating that such payment is exempt from Taxes.
For purposes of this subsection (d) and subsection (e) of this Section 5, the
terms "United States" and "United States person" shall have the meanings
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specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of the Credit Agreement in the case of each Initial Lender, initial
Swing Line Bank or Initial Issuing Bank, as the case may be, and on the date of
the Assignment and Acceptance pursuant to which it became a Lender Party in the
case of each other Lender Party, and from time to time thereafter if requested
in writing by any of the Subsidiary Guarantors or the Agent (but only so long
thereafter as such Lender Party remains lawfully able to do so), provide the
Agent and the Subsidiary Guarantors with two (2) duly completed copies of
Internal Revenue Service form 1001 or 4224, as appropriate, or any successor
form prescribed by the Internal Revenue Service, certifying that such Lender
Party is exempt from or is entitled to a reduced rate of United States
withholding tax on payments under the Credit Agreement or the Notes. To the
extent that any such form becomes obsolete with respect to any Lender Party,
such Lender Party shall, upon the reasonable written request of any of the
Subsidiary Guarantors to such Lender Party and the Agent (but only if such
Lender Party is lawfully able to do so) provide two (2) copies of either an
updated or successor form to the Subsidiary Guarantors and the Agent. If the
forms provided by a Lender Party at the time such Lender Party first becomes a
party to the Credit Agreement indicate a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender Party provides the appropriate
forms certifying that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes for periods governed by
such form; provided, however, that, if at the date of the Assignment and
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Acceptance pursuant to which a Lender Party becomes a party to the Credit
Agreement, the Lender Party assignor was entitled to payments under subsection
(a) of this Section 5 in respect of United States withholding tax with respect
to interest paid at such date, then, to such extent, the term Taxes shall
include (in addition to withholding taxes that may be imposed in the future or
other amounts otherwise includable in Taxes) United States withholding tax, if
any, applicable with respect to the Lender Party assignee on such date. If any
form or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001 or
4224, that the Lender Party reasonably considers to be confidential, the Lender
Party shall give notice thereof to such Subsidiary Guarantor and shall not be
obligated to include in such form or document such confidential information.
(f) For any period with respect to which a Lender Party has failed to
provide any Subsidiary Guarantor with the appropriate form described in
subsection (e) of this
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Section 5 (other than if such Subsidiary Guarantor has failed to timely request
with reasonable notice any appropriate renewal, successor or other form or if
any such form otherwise is not required under subsection (e) of this Section 5),
such Lender Party shall not be entitled to indemnification under subsection (a)
or (c) of this Section 5 with respect to Taxes imposed by the United States;
provided, however, that should a Lender Party become subject to Taxes because of
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its failure to deliver a form required hereunder, each Subsidiary Guarantor
shall take such steps as such Lender Party shall reasonably request to assist
such Lender Party to recover such Taxes.
(g) If the Agent or any Lender Party, in its sole opinion, determines
that it has finally and irrevocably received or been granted a refund in respect
of any Taxes or Other Taxes as to which indemnification has been paid by any
Subsidiary Guarantor pursuant to Section 5(a) or (c), it shall promptly remit
such refund to such Subsidiary Guarantor, net of all out-of-pocket expenses of
the Agent or such Lender Party; provided, however, that such Subsidiary
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Guarantor upon the request of the Agent or such Lender Party, agrees promptly to
return such refund to such party in the event such party is required to repay
such refund to the relevant taxing authority. The Agent or such Lender Party
shall provide such Subsidiary Guarantor with a copy of any notice or assessment
from the relevant taxing authority (deleting any confidential information
contained therein) requiring repayment of such refund. At the request and
expense of any of the Subsidiary Guarantors, the Agent or any Lender Party, as
the case may be, shall use commercially reasonably efforts to seek a refund of
any Taxes or Other Taxes as to which indemnification has been paid by such
Subsidiary Guarantor pursuant to subsection (a) or (c) of this Section 5.
Nothing contained herein shall impose an obligation on the Agent or any Lender
Party to disclose to any party any information regarding tax affairs and
computations.
(h) Any Lender Party claiming any additional amounts payable pursuant
to this Section 5 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender Party, be
otherwise disadvantageous to such Lender Party.
(i) Without prejudice to the survival of any other agreement of any
Subsidiary Guarantor hereunder, the agreements and obligations of each
Subsidiary Guarantor contained in this Section 5 shall survive the payment in
full of the Guaranteed Obligations and all other amounts payable under this
Subsidiary Guaranty.
SECTION 6. Representations and Warranties. Each Subsidiary
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Guarantor hereby represents and warrants as follows:
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(a) Such Subsidiary Guarantor (i) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be
licensed except where the failure to so qualify or be licensed could not
have a Material Adverse Effect and (iii) has all requisite corporate power
and authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties and
to carry on its business as now conducted and as proposed to be conducted.
All of the outstanding capital stock of such Subsidiary Guarantor has been
validly issued, is fully paid and non-assessable and is owned by a Loan
Party, free and clear of all Liens, except those created under the Loan
Documents.
(b) The execution, delivery and performance by such Subsidiary
Guarantor of this Subsidiary Guaranty are within such Subsidiary
Guarantor's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Subsidiary Guarantor's
charter or bylaws, (ii) violate any law (including, without limitation, the
Securities Exchange Act of 1934), rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default
under, any contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument binding on or affecting such Subsidiary Guarantor
or any of its properties or (iv) except for the Liens created under the
Loan Documents, result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of any Subsidiary Guarantor.
No Subsidiary Guarantor is in violation of any such law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award or in
breach of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the violation or breach of which could
have a Material Adverse Effect.
(c) After giving effect to the filing of the UCC Financing Statements
contemplated by the Credit Agreement and the Collateral Documents, no
authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body or any other third
party is required for (i) the due execution, delivery, recordation, filing
or performance by any Subsidiary Guarantor of this Subsidiary Guaranty or
the other transactions contemplated hereby, (ii) the grant by any
Subsidiary Guarantor of the Liens granted by it pursuant to the Collateral
Documents, (iii) the perfection or maintenance of the Liens created by the
Collateral Documents (including the first priority nature thereof) or (iv)
the exercise by the Agent or any Lender Party of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the authorizations,
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approvals, actions, notices and filings listed on Schedule 4.01(d) of the
Credit Agreement, all of which have been duly obtained, taken, given or
made and are in full force and effect. All applicable waiting periods in
connection with the transactions contemplated hereby have expired without
any action having been taken by any competent authority restraining,
preventing or imposing materially adverse conditions upon the rights of the
Subsidiary Guarantors freely to transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter acquired by any
of them.
(d) This Subsidiary Guaranty and each other Loan Document to which it
is a party has been duly executed and delivered by such Subsidiary
Guarantor. Each of this Subsidiary Guaranty and each other Loan Document to
which it is a party is the legal, valid and binding obligation of such
Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating
to or limiting creditors' rights or by equitable principles generally.
(e) There is no action, suit, investigation, litigation or proceeding
affecting any Subsidiary Guarantor, including any Environmental Action,
pending or threatened before any court, governmental agency or arbitrator
that (i) could have a Material Adverse Effect or (ii) purports to affect
the legality, validity or enforceability of this Subsidiary Guaranty or the
consummation of the transactions contemplated hereby.
(f) There are no conditions precedent to the effectiveness of this
Subsidiary Guaranty that have not been satisfied or waived.
(g) Such Subsidiary Guarantor has, independently and without reliance
upon the Agent or any Lender Party and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Subsidiary Guaranty, and such Subsidiary
Guarantor has established adequate means of obtaining from any other Loan
Parties on a continuing basis information pertaining to, and is now and on
a continuing basis will be completely familiar with, the financial
condition, operations, properties and prospects of such other Loan Parties.
SECTION 7. Covenants. Each Subsidiary Guarantor covenants and agrees
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that, so long as any part of the Guaranteed Obligations shall remain unpaid, any
Letter of Credit shall be outstanding, any Lender Party shall have any
Commitment or any Secured Hedge Agreement shall remain in effect, such
Subsidiary Guarantor will at all times perform or observe, and will cause each
of its Subsidiaries to perform or observe, all of the terms, covenants and
agreements that the Loan Documents state that the Borrower is to cause such
Subsidiary Guarantor or such Subsidiaries to perform or observe.
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SECTION 8. Amendments, Etc. No amendment or waiver of any provision
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of this Subsidiary Guaranty and no consent to any departure by any Subsidiary
Guarantor therefrom shall in any event be effective unless the same shall be in
writing and signed by the Agent and the Required Lenders, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or consent
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shall, unless in writing and signed by all of the Secured Parties, (i) reduce or
limit the liability of such Subsidiary Guarantor hereunder or release any
Subsidiary Guarantor hereunder, (ii) postpone any date fixed for payment
hereunder or (iii) amend this Section 8.
SECTION 9. Notices, Etc. All notices and other communications
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provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered
to it, if to any Subsidiary Guarantor, to the address set forth below such
Subsidiary Guarantor's signature on the signature pages hereof, if to the Agent
or any other Lender Party, at its address specified in the Credit Agreement, or
as to any party at such other address as shall be designated by such party in a
written notice to each other party. All such notices and other communications
shall, when mailed, telegraphed, telecopied, telexed or sent by courier, be
effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier, confirmed by telex answerback or delivered to the
overnight courier, respectively. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Subsidiary
Guaranty shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 10. No Waiver; Remedies. No failure on the part of the Agent
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or any other Secured Party to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION 11. Right of Set-off. Upon (i) the occurrence and during the
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continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 of the Credit Agreement to
authorize the Agent to declare the Notes due and payable pursuant to the
provisions of said Section 6.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender Party or such
Affiliate to or for the credit or the account of any Subsidiary Guarantor
against any and all of the Obligations of such Subsidiary Guarantor now or
hereafter existing under this Subsidiary Guaranty, irrespective of whether such
Lender Party shall have made any demand under this Subsidiary Guaranty and
although such Obligations may be unmatured. Each Lender Party agrees promptly
to notify such Subsidiary Guarantor
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after any such set-off and application; provided, however, that the failure to
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give such notice shall not affect the validity of such set-off and application.
The rights of each Lender Party and its respective Affiliates under this Section
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that such Lender Party and its respective Affiliates
may have.
SECTION 12. Indemnification. Without limitation on any other
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Obligations of any Subsidiary Guarantor or remedies of the Secured Parties under
this Subsidiary Guaranty, each Subsidiary Guarantor shall, to the fullest extent
permitted by law, indemnify, defend and save and hold harmless each Secured
Party from and against, and shall pay on demand, any and all losses,
liabilities, damages, costs, expenses and charges (including the fees and
disbursements of such Secured Party's legal counsel) suffered or incurred by
such Secured Party as a result of any failure of any Guaranteed Obligations to
be the legal, valid and binding obligations of any Loan Party enforceable
against such Loan Party in accordance with their terms.
SECTION 13. Continuing Subsidiary Guaranty; Assignments under the
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Credit Agreement. This Subsidiary Guaranty is a continuing guaranty and shall
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(i) remain in full force and effect until the later of the payment in full in
cash of the Guaranteed Obligations and all other amounts payable under this
Subsidiary Guaranty and the later of the Termination Date and the expiration or
termination of all Secured Hedge Agreements, (ii) be binding upon each
Subsidiary Guarantor, its successors and assigns and (iii) inure to the benefit
of and be enforceable by the Agent and the other Secured Parties and their
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iv), any Secured Party may assign or otherwise transfer all or
any portion of its rights and obligations under the Credit Agreement (including,
without limitation, all or any portion of its Commitments, the Advances owing to
it and the Note or Notes held by it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to such Secured Party herein or otherwise, in each case as and to the extent
provided in Section 9.07 of the Credit Agreement. No Subsidiary Guarantor shall
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Secured Parties.
SECTION 14. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.
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(a) This Subsidiary Guaranty shall be governed by, and construed in accordance
with, the laws of the State of New York.
(b) Each Subsidiary Guarantor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Subsidiary Guaranty or any of the
other Loan Documents to which it is or is to be a party, or
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for recognition or enforcement of any judgment, and each Subsidiary Guarantor
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each Subsidiary
Guarantor agrees that a final 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. Nothing in this Subsidiary Guaranty shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Subsidiary Guaranty or any of the other Loan
Documents to which it is or is to be a party in the courts of any jurisdiction.
(c) Each Subsidiary Guarantor irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Subsidiary Guaranty or any of the
other Loan Documents to which it is or is to be a party in any New York State or
federal court. Each Subsidiary Guarantor hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) TO THE EXTENT PERMITTED BY LAW, EACH SUBSIDIARY GUARANTOR HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, THE TRANSACTIONS CONTEMPLATED THEREBY OR
THE ACTIONS OF THE AGENT OR ANY OTHER SECURED PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this
Subsidiary Guaranty to be duly executed and delivered by its officer thereunto
duly authorized as of the date first above written.
IRON AGE INVESTMENT COMPANY
By: /s/ Xxxxx X. XxXxxxxxx
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Name: Xxxxx X. XxXxxxxxx
Title: President
FALCON SHOE MFG. CO.
By: /s/ Xxxxx X. XxXxxxxxx
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Name: Xxxxx X. XxXxxxxxx
Title: Vice President
