EXHIBIT 10.6
INTERCOMPANY SUBORDINATION AGREEMENT
INTERCOMPANY SUBORDINATION AGREEMENT dated April 24, 1998, made by
Iron Age Holdings Corporation, a Delaware corporation (the "Parent Guarantor"),
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Iron Age Investment Company, Falcon Shoe Mfg. Co., Iron Age Canada Ltd. and Iron
Age de Mexico S.A. de C.V (collectively, the "Subordinated Creditors") and Iron
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Age Corporation, a Delaware corporation (the "Borrower"), in favor of BANQUE
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NATIONALE DE PARIS, as agent (together with any successor thereto appointed
pursuant to Article VIII of the Credit Agreement referred to below, the "Agent")
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for the Lender Parties under the Credit Agreement referred to below and the
other holders of the Senior Obligations referred to below.
PRELIMINARY STATEMENTS
(1) The Lender Parties have entered into (a) a Credit Agreement dated
as of April 24, 1998 with the Borrower and the Parent Guarantor (said agreement,
as it may hereafter be amended, restated, supplemented or otherwise modified
from time to time, and any agreement extending the maturity of, refinancing or
otherwise restructuring all or any portion of the Obligations thereunder being
the "Credit Agreement", the terms defined therein and not otherwise defined
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herein being used herein as therein defined) and (b) the other Loan Documents
with the Loan Parties party thereto.
(2) The Borrower intends to issue Senior Subordinated Notes (the
"Senior Subordinated Notes") in an aggregate principal amount of up to
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$100,000,000 pursuant to the Senior Subordinated Note Indenture dated as of
April 24, 1998 among the Borrower, certain of its Subsidiaries party thereto and
The Chase Manhattan Bank, as trustee (the "Trustee") (as amended, restated,
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supplemented or otherwise modified from time to time, the "Senior Subordinated
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Note Indenture").
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(3) The Borrower may hereafter from time to time enter into other
Subordinated Debt Documents with Persons other than its Subsidiaries.
(4) The Borrower is, and may hereafter from time to time become,
indebted or otherwise obligated to the Subordinated Creditors in further
amounts. All Debt and other Obligations of the Borrower to the Subordinated
Creditors now or hereafter existing (whether created directly or acquired by
assignment or otherwise), and interest and premiums, if any, thereon and other
amounts payable in respect thereof or in connection therewith are hereinafter
referred to as the "Subordinated Debt".
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(5) It is a condition precedent to the Initial Extension of Credit by
the Lender Parties under the Credit Agreement that the Subordinated Creditors
shall have executed and delivered this Agreement.
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NOW, THEREFORE, in consideration of the premises and in order to
induce the Initial Lenders, the initial Swing Line Bank and/or the Initial
Issuing Bank to make the Initial Extension of Credit under the Loan Documents,
the Subordinated Creditors and the Borrower each hereby agree as follows:
SECTION 1. Agreement to Subordinate. The Subordinated Creditors and
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the Borrower each agrees that all of the Subordinated Debt is and shall be
subordinate and junior, to the extent and in the manner hereinafter set forth,
to the prior payment in full of all Senior Obligations (as hereinafter defined),
whether now or hereafter existing. For the purposes of this Agreement, the
Senior Obligations shall not be deemed to have been paid in full until the
latest of (a) the payment in full in cash of all of the Senior Obligations and
the termination or expiration of all of the commitments of the Secured Parties
and other holders thereof, (b) the expiration or termination of all of the
Secured Hedge Agreements and (c) the Termination Date (such latest date being
hereinafter referred to as the "Subordination Termination Date"). Furthermore,
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for purposes of this Agreement:
(i) the term "Senior Obligations" means all Debt and other
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Obligations of the Borrower under or in respect of (A)(1) the Credit
Agreement, the Notes, the other Loan Documents and the Secured Hedge
Agreements, (2) all other Hedge Agreements entered into by the Borrower
from time to time, (3) the Senior Subordinated Note Indenture and the
Senior Subordinated Notes and (4) any other Subordinated Debt Documents
other than those relating to the Obligations of the Borrower to its
Subsidiaries, in each case under this subclause (A) whether for principal,
interest (including, without limitation, interest, as provided in the
Notes, that accrues after the filing of a petition initiating any action or
proceeding under the U.S. Bankruptcy Code or any other bankruptcy,
insolvency or similar law or statute protecting creditors in effect in any
jurisdiction, whether or not such interest accrues after the filing of such
petition for purposes of the U.S. Bankruptcy Code or such other law or
statute or is an allowed claim in any such action or proceeding), fees,
premiums, indemnifications, liabilities, expenses or otherwise, and in each
case under this subclause (A), as amended, supplemented, modified,
extended, restated, renewed, refunded or replaced, in whole or in part,
from time to time, and without limitation as to amount, terms, conditions,
covenants and other provisions, and (B) any instrument or other agreement
governing any Debt or other Obligations incurred to refinance, refund or
replace, in whole or in part, any of the Debt or other Obligations referred
to in subclause (A) of this sentence, together with any related notes,
guarantees, collateral documents, instruments and agreements executed from
time to time in connection therewith;
(ii) the term "Senior Secured Obligations" means all Debt and other
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Obligations of the Borrower referred to in subclause (A)(1) of the
definition of "Senior
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Obligations" set forth above and any Debt or other Obligations of the
Borrower incurred to refinance, refund or replace, in whole or in part, any
of such Debt or other Obligations; and
(iii) the term "Senior Creditors" means, collectively, the Agent, the
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other Secured Parties and the other holders of any of the Senior
Obligations.
SECTION 2. Events of Subordination. (a) In the event of any
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dissolution, winding up, liquidation, arrangement, reorganization, adjustment,
protection, relief or composition of the Borrower or of its debts, whether
voluntary or involuntary, in any bankruptcy, insolvency, arrangement,
reorganization, receivership, liquidation, winding up, dissolution, relief or
other similar action or proceeding under any bankruptcy, insolvency or similar
law or statute protecting creditors in effect in any jurisdiction, or upon an
assignment for the benefit of creditors or any other marshaling of the assets
and liabilities of the Borrower, or any other similar action or proceeding
(each, an "Insolvency Event"), the Senior Creditors shall be entitled to receive
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payment in full of the Senior Obligations owed to them before the Subordinated
Creditors shall be entitled to receive any payment of all or any of the
Subordinated Debt, and any payment or distribution of any kind (whether in cash,
property or securities) that otherwise would be payable or deliverable upon or
with respect to the Subordinated Debt in any such Insolvency Event (including
any payment that may be payable by reason of any other indebtedness of the
Borrower being subordinated to payment of the Subordinated Debt) shall be paid
or delivered directly to (w) the Agent, or (x) after the payment in full of all
of the Senior Secured Obligations, any Senior Creditor holding "Senior
Obligations" under Section 1(i)(A)(2) hereof (all such Senior Creditors being
the "Hedge Senior Creditors"), or (y) after the payment in full of all
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Obligations referred in the foregoing clause (x), the Trustee under the Senior
Subordinated Note Indenture for the benefit of the Senior Creditors holding
"Senior Obligations" under Section 1(i)(A)(3) hereof (all such Senior Creditors
being the "Other Senior Creditors") or, (z) after the payment in full of all of
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the Obligations referred in the foregoing clause (y), any Senior Creditor (the
"Senior Representative"), for the account of (i) the Senior Creditors holding
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Senior Secured Obligations for application (in the case of cash) to, or as
collateral (in the case of non-cash property or securities) for, the payment or
prepayment of the Senior Secured Obligations owed to the applicable Senior
Creditors until such Senior Secured Obligations shall have been paid in full,
(ii) the Hedge Senior Creditors for application in the same manner for the
ratable payment or prepayment of the Obligations referred to in Section
1(i)(A)(2) hereof owed to the Hedge Senior Creditors until such Obligations
shall have been paid in full, (iii) the Other Senior Creditors for application
in the same manner for the ratable payment or prepayment of the Obligations
referred to in Section 1(i)(A)(3) hereof owed to the Other Senior Creditors
until such Obligations shall have been paid in full, or (iv) the remaining
Senior Creditors for application in the same manner for the ratable payment or
prepayment of the remaining Senior
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Obligations owed to the remaining Senior Creditors until such remaining Senior
Obligations shall have been paid in full.
(b) In the event that (i) any Default shall have occurred and be
continuing or (ii) any judicial proceeding shall be pending with respect to any
such Default, then no payment (including any payment that may be payable by
reason of any other indebtedness of the Borrower being subordinated to payment
of the Subordinated Debt) shall be made by or on behalf of the Borrower for or
on account of any Subordinated Debt, and the Subordinated Creditors shall not
take or receive from the Borrower, directly or indirectly, in cash or other
property or by set-off or in any other manner, including, without limitation,
from or by way of collateral, payment of all or any of the Subordinated Debt.
(c) In the event that any Subordinated Debt is declared due and
payable before its stated maturity, the Senior Creditors shall be entitled to
receive payment in full of all amounts due or to become due on or in respect of
all Senior Obligations before the Subordinated Creditors are entitled to receive
any payment (including any payment which may be payable by reason of the payment
of any other indebtedness of the Borrower being subordinated to the payment of
the Subordinated Debt) by the Borrower on account of the Subordinated Debt. As
long as there is no Default and except as otherwise provided in this Agreement,
the Subordinated Creditors shall be entitled to receive and keep payments in
respect of the Subordinated Debt.
SECTION 3. In Furtherance of Subordination. Each of the Subordinated
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Creditors agrees, in furtherance of the rights of the Senior Creditors set forth
in Section 2, that:
(a) If any Insolvency Event is commenced by or against the Borrower:
(i) the Senior Representative is hereby irrevocably authorized
and empowered (in its own name or in the name of the Subordinated
Creditors or otherwise), but shall have no obligation, to demand, xxx
for, collect and receive every payment or distribution otherwise
payable to the Subordinated Creditors on account of the Subordinated
Debt following an Insolvency Event and give acquittance therefor, and
to file claims and proofs of claim and take such other action
(including, without limitation, voting the Subordinated Debt or
enforcing any security interest or other lien securing payment of the
Subordinated Debt) as it may deem necessary or advisable for the
exercise or enforcement of any of the rights or interests of any of
the Senior Creditors under this Agreement; and
(ii) the Subordinated Creditors shall duly and promptly take such
action as the Senior Representative may from time to time request (A)
to collect
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the Subordinated Debt for the account of the Senior Creditors and to
file appropriate claims or proofs of claim in respect of the
Subordinated Debt, (B) to execute and deliver to the Senior
Representative such powers of attorney, assignments, or other
instruments as the Senior Representative may request in order to
enable the Senior Representative to enforce any and all claims with
respect to, and any security interests and other liens securing
payment of, the Subordinated Debt and (C) to collect and receive any
and all payments or distributions which may be payable or deliverable
upon or with respect to the Subordinated Debt.
(b) All payments or distributions upon or with respect to the
Subordinated Debt which are received by the Subordinated Creditors contrary
to the provisions of this Agreement shall be received in trust for the
benefit of the Senior Creditors, shall be segregated from other funds and
property of the Subordinated Creditors and shall be forthwith paid over to
the Senior Representative in the same form as so received (with any
necessary indorsement) for the account of (i) the Secured Parties (or the
successors thereto) for application (in the case of cash) to, or as
collateral (in the case of noncash property or securities) for, the payment
or prepayment of the Senior Secured Obligations owed to the applicable
Senior Creditors until such Senior Secured Obligations shall have been paid
in full, and (y) the other Senior Creditors for application in the same
manner for the payment or prepayment of the remaining Senior Obligations
owed to the other Senior Creditors until such remaining Senior Obligations
shall have been paid in full.
(c) To the extent that any of the Subordinated Creditors, the
Borrower or any of its Subsidiaries or any other guarantor of or provider
of collateral for the Senior Obligations makes any payment on the Senior
Obligations that is subsequently invalidated, declared to be fraudulent or
preferential or set aside or is required to be repaid to a trustee,
receiver or any other party under any bankruptcy, insolvency or
reorganization act, state or federal law, common law or equitable cause
(such payment being hereinafter referred to as a "Voided Payment"), then to
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the extent of such Voided Payment, that portion of the Senior Obligations
that had been previously satisfied by such Voided Payment shall be revived
and continue in full force and effect as if such Voided Payment had never
been made. To the extent that the Subordinated Creditors shall have
received any payments subsequent to the date of the Senior Creditors'
initial receipt of such Voided Payment and such payments have not been
invalidated, declared to be fraudulent or preferential or set aside or are
required to be repaid to a trustee, receiver, or any other party under any
bankruptcy act, state or federal law, common law or equitable cause, the
Subordinated Creditors shall be obligated and hereby agrees that any such
payment so made or received shall be deemed to have been received in trust
for the benefit of the Senior Creditors, and the Subordinated Creditors
hereby
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agrees to pay to the Senior Representative, upon demand, the full amount so
received by the Subordinated Creditors during such period of time to the
extent necessary fully to restore to the Senior Creditors the amount of
such Voided Payment to be applied as set forth in Section 3(b).
(d) The Senior Representative is hereby authorized to demand specific
performance of this Agreement, whether or not the Borrower shall have
complied with any of the provisions hereof applicable to it, at any time
when the Subordinated Creditors shall have failed to comply with any of the
provisions of this Agreement applicable to it. The Subordinated Creditors
hereby irrevocably waives any defense based on the adequacy of a remedy at
law which might be asserted as a bar to the remedy of specific performance
set forth in this Section 3(d).
(e) The Subordinated Creditors shall not have or claim any Lien in or
on any property or assets of the Borrower, whether now or hereafter
existing, except in furtherance of the execution or levy upon any judgment
which the Subordinated Creditors is permitted to obtain hereunder and, in
all such cases, subject to the provisions of this Agreement.
(f) Each of the Subordinated Creditors hereby agrees, with respect to
the Senior Obligations and any and all of the Collateral therefor, that the
Borrower and the Secured Parties may agree to amend, waive, supplement or
otherwise modify the terms or conditions of any of the Senior Obligations,
and the Senior Creditors (or any portion of them) may grant extensions of
the time of payment or performance of and make compromises in respect of,
any or all of the Senior Secured Obligations (including, without
limitation, releases of collateral of, and settlements with, the Borrower,
any of the other Loan Parties or any of the other guarantors, sureties or
providers of collateral security for the Senior Obligations) and the
agreements, instruments and other documents related thereto, in each case
without the consent of the Subordinated Creditors and without affecting any
of the agreements or obligations of the Subordinated Creditors or the
Borrower contained in this Agreement. Without the necessity of any
reservation of rights against or any notice to or assent by the
Subordinated Creditors, any demand for payment of any of the Senior
Obligations may be rescinded, in whole or in part, and any of the Senior
Obligations may be continued or extended, and the Senior Creditors may
exercise or refrain from exercising any rights and remedies against the
Borrower or any other Loan Party and the collateral therefor, all without
impairing, abridging, releasing or affecting the subordination provisions
or any of the other agreements or obligations of the Subordinated Creditors
or the Borrower contained in this Agreement. Nothing in this Agreement
shall be construed to create or impose upon the Senior Representative or
any of the other Senior Creditors any fiduciary duty to the Subordinated
Creditors or any other implied
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obligation to act or refrain from acting with respect to the Borrower, any
of the other Loan Parties or the collateral therefor, or with respect to
any of the Senior Obligations in any manner that is contrary to what the
Senior Representative and the Senior Creditors may determine from time to
time is in its or their own interests.
SECTION 4. No Commencement of Any Proceeding. (a) Each of the
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Subordinated Creditors agrees that, so long as the Subordination Termination
Date shall not have occurred, the Subordinated Creditors will not take, xxx for,
ask or demand from the Borrower payment of all or any of the Subordinated Debt,
or commence, or join with any creditor other than the Senior Representative and
the other Senior Creditors in commencing, or directly or indirectly cause the
Borrower to commence, or assist the Borrower in commencing, any Insolvency
Event.
(b) If the Subordinated Creditors, in contravention of this
Agreement, shall commence, prosecute or participate in any of the proceedings
mentioned in Section 4(a), then the Senior Representative may intervene and
interpose as a defense or plea the making of this Agreement in its name or the
name of the Borrower.
SECTION 5. Rights of Subrogation. Each of the Subordinated Creditors
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hereby unconditionally and irrevocably agrees that no payment or distribution to
the Senior Representative, on behalf of itself or any of the other Senior
Creditors, pursuant to the provisions of this Agreement shall entitle the
Subordinated Creditors to exercise any right of subrogation in respect thereof,
nor shall the Subordinated Creditors have any right of reimbursement,
restitution, exoneration, contribution or indemnification whatsoever from any
property or assets of the Borrower, any of the other Loan Parties or any of the
other guarantors, sureties or providers of collateral security for the Senior
Obligations, or any right to participate in any claim or remedy of the Senior
Representative or any of the other Senior Creditors against the Borrower or any
of the collateral for the Senior Obligations, 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, directly or
indirectly, in cash or other property and assets or by setoff or in any other
manner, payment or security on account of such claim, remedy or right), until
the Subordination Termination Date. If any amount shall be paid to the
Subordinated Creditors in violation of the immediately preceding sentence at any
time prior to the Subordination Termination Date, such amount shall be held in
trust for the benefit of the Senior Representative and the other Senior
Creditors, shall be segregated from all other property and funds of the
Subordinated Creditors and shall forthwith be paid to the Senior Representative
for the account of the Senior Creditors in the same form as so received (with
any necessary indorsement) for the account of (i) the Secured Parties (or the
successors thereto) for application (in the case of cash) to, or as collateral
(in the case of noncash property or securities) for, the payment or prepayment
of the Senior Secured Obligations owed to the applicable Senior Creditors until
such Senior Secured
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Obligations shall have been paid in full, and (ii) the other Senior Creditors
for application in the same manner for the payment or prepayment of the
remaining Senior Obligations owed to the other Senior Creditors until such
remaining Senior Obligations shall have been paid in full.
SECTION 6. Subordination Legend; Further Assurances. The
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Subordinated Creditors and the Borrower will cause each instrument evidencing
Subordinated Debt to be endorsed with the following legend:
"THE DEBT EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED TO THE PRIOR
PAYMENT IN FULL IN CASH OF ALL OF THE SENIOR OBLIGATIONS (AS DEFINED IN THE
SUBORDINATION AGREEMENT HEREINAFTER REFERRED TO) PURSUANT TO, AND TO THE
EXTENT PROVIDED IN, THE SUBORDINATION AGREEMENT DATED APRIL 24, 1998 BY THE
MAKER HEREOF AND PAYEE NAMED HEREIN IN FAVOR OF THE SENIOR REPRESENTATIVE
AND THE OTHER SENIOR CREDITORS REFERRED TO THEREIN."
The Subordinated Creditors and the Borrower each will further xxxx its books of
account in such a manner as shall be effective to give proper notice of the
effect of this Agreement and will, in the case of any Subordinated Debt which is
not evidenced by any instrument, upon the Senior Representative's request,
promptly cause such Subordinated Debt to be evidenced by an appropriate
instrument or instruments endorsed with the legend set forth above. The
Subordinated Creditors and the Borrower each will, at its expense and at any
time and from time to time, promptly execute and deliver all further instruments
and documents, and take all further action, that may be necessary or desirable,
or that the Senior Representative may request, in order to protect any right or
interest granted or purported to be granted under this Agreement or to enable
the Senior Representative or any of the other Senior Creditors to exercise and
enforce its rights and remedies hereunder.
SECTION 7. Agreements in Respect of Subordinated Debt, Etc. (a) The
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Subordinated Creditors will not:
(i) Cancel or otherwise discharge any of the Subordinated Debt
(except upon payment in full thereof paid to the Senior Representative as
contemplated by Section 3(b)), convert or exchange any of the Subordinated
Debt into or for any other indebtedness or equity interest or subordinate
any of the Subordinated Debt to any Debt or other Obligations of the
Borrower other than the Senior Obligations;
(ii) Sell, assign, pledge, encumber or otherwise dispose of any of the
Subordinated Debt unless such sale, assignment, pledge, encumbrance or
disposition
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(A) is to a Person other than the Borrower or any of its Affiliates and (B)
is made expressly subject to the terms of this Agreement; or
(iii) Permit the terms of any of the Subordinated Debt to be amended,
waived, supplemented or other modified in such a manner as could reasonably
be expected to have an adverse effect upon the rights or interests of the
Senior Representative or any of the other Senior Creditors under this
Agreement or any of the Loan Documents.
(b) The Subordinated Creditors shall promptly notify the Senior
Representative of the occurrence of any default under the Subordinated Debt.
SECTION 8. Agreement by the Borrower. The Borrower agrees that it
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will not make any payment of any of the Subordinated Debt, or take any other
action, in contravention of the provisions of this Agreement.
SECTION 9. Senior Obligations Hereunder Not Affected. All rights and
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interests of the Senior Representative and the Secured Parties hereunder, and
all agreements and other Obligations of the Subordinated Creditors and the
Borrower under this Agreement, shall remain in full force and effect
irrespective of, and each of the Subordinated Creditors hereby irrevocably
waives 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 the Credit Agreement or
any of the other Loan Documents, the Subordinated Debt Documents, any of
the other agreements or instruments relating to any of the Senior
Obligations, or any other agreement or instrument relating to any of the
foregoing;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Senior Obligations, or any other amendment
or waiver of or any consent to any departure from the Credit Agreement or
any of the other Loan Documents, the Subordinated Debt Documents, any of
the other agreements or instruments relating to any of the Senior
Obligations, including, without limitation, any increase in the Senior
Obligations resulting from the extension of additional credit to the
Borrower or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or nonperfection of any Collateral
or any other collateral for the Senior Obligations, or any taking, release
or amendment or waiver of or consent to departure from any guaranty, for
all or any of the Senior Obligations;
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(d) any manner of application of any Collateral or any other
collateral for the Senior Obligations, or proceeds thereof, to all or any
of the Senior Obligations, or any manner of sale or other disposition of
any Collateral or any other collateral for the Senior Obligations or any
other assets of the Borrower or any of its Affiliates;
(e) any change, restructuring or termination of the corporate
structure or existence of the Borrower or any of its Affiliates; or
(f) any other circumstance (including, without limitation, any
statute of limitations or the existence of or reliance upon any
representation by the Senior Representative or any of the other Senior
Creditors) that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a subordinated creditor.
SECTION 10. Waivers and Acknowledgments. (a) The Subordinated
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Creditors and the Borrower each hereby unconditionally and irrevocably waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Senior Obligations and this Agreement, and any requirement that the
Senior Representative or any of the other Senior Creditors protect, secure,
perfect or insure any Lien or any property or assets subject thereto or exhaust
any right or take any action against the Borrower or any other Person or any
Collateral or any other collateral for the Senior Obligations.
(b) The Subordinated Creditors and the Borrower each hereby
unconditionally and irrevocably waives any duty on the part of the Senior
Representative or any of the other Senior Creditors to disclose to the
Subordinated Creditors any matter, fact or thing relating to the business,
condition, operations, properties or prospects of the Borrower or any of its
Subsidiaries now or hereafter known by the Senior Representative or such other
Secured Party.
(c) The Subordinated Creditors and the Borrower each hereby
unconditionally waives any right to revoke this Agreement, and acknowledges that
this Agreement is continuing in nature at all times on or prior to the
Subordination Termination Date and applies to all of the Subordinated Debt and
all of the agreements and other Obligations of the Subordinated Creditors under
this Agreement, whether existing now or in the future.
(d) The Subordinated Creditors acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and the other agreements or instruments
relating to any of the Senior Obligations, and that the waivers set forth in
Section 9 and in this Section 10 are knowingly made in contemplation of such
benefits.
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SECTION 11. Representations and Warranties. The Subordinated
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Creditors and the Borrower each hereby represent and warrant as follows:
(a) The Subordinated Debt now outstanding, true and complete copies of
instruments evidencing which have been furnished to the Senior
Representative, has been duly authorized, issued and delivered by the
Borrower, has not been amended or otherwise modified except as set forth in
Preliminary Statement (3) of this Agreement, and constitutes the legal,
valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms. There exists no default in respect
of any such Subordinated Debt.
(b) The Subordinated Creditors is the legal and beneficial owner of
the Subordinated Debt now outstanding, free and clear of any Lien.
(c) There are no conditions precedent to the effectiveness of this
Agreement that have not been satisfied or waived.
(d) The Subordinated Creditors has, independently and without reliance
upon the Senior Representative or any of the other Senior Creditors and
based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement.
SECTION 12. Amendments, Waivers, Etc. (a) No amendment or waiver of
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any provision of this Agreement, and no consent to any departure by the
Subordinated Creditors or the Borrower herefrom, shall in any event be effective
unless the same shall be in writing and signed by the Senior Representative 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,
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however, that any provision relating solely to the rights and obligations of the
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Senior Creditors hereunder as among themselves may be amended from time to time
upon notice from the Senior Representative and the Trustee on behalf of the
Senior Subordinated Notes if the Senior Subordinated Notes are affected by any
such amendment to the Subordinated Representative and the Borrower.
(b) The Subordinated Creditors hereby agrees that no failure on the
part of the Senior Representative or any of the other Senior Creditors to
exercise, and no delay in exercising, any right, power or privilege hereunder
shall operate as a waiver thereof or a consent thereto; nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The Subordinated Creditors hereby agrees that the remedies herein provided are
cumulative and not exclusive of any remedy provided by applicable law.
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SECTION 13. Addresses for Notices. All notices and other
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communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered by an overnight courier of recognized standing,
if to the Subordinated Creditors, at each of the addresses listed below each
such Subordinated Creditor's name on the signature pages hereof; if to the
Borrower, the Senior Representative or any Lender Parties, at its address
specified in Section 9.02 of the Credit Agreement; and if to the holders of the
Senior Subordinated Notes, to Banque Nationale de Paris, as Agent, at 000 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx Xxxxxxxxx, telecopier number (212)
418-8231; or as to each 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 deposited in the mails, delivered to the telegraph
company, transmitted by telecopier, confirmed by telex answerback or delivered
by overnight courier, be effective when deposited in the mails, delivered to the
telegraph company, telecopied, confirmed by telex answerback or delivered to the
overnight courier, respectively.
SECTION 14. Expenses. The Subordinated Creditors and the Borrower
--------
jointly and severally agree to pay to the Senior Representative, upon demand,
any and all costs and expenses, including the reasonable fees and expenses of
its counsel and of any experts or agents, which the Senior Representative or any
or any of the other Senior Creditors may incur in connection with the (a) the
administration of this Agreement, (b) the exercise or enforcement of any of the
rights of the Senior Representative or the Senior Creditors hereunder or (c) the
failure by the Subordinated Creditors or the Borrower to perform or observe any
of the terms or provisions of this Agreement.
SECTION 15. Continuing Agreement; Assignments Under the Credit
--------------------------------------------------
Agreement. This Agreement is a continuing agreement and shall (a) remain in
---------
full force and effect until the Subordination Termination Date, (b) be binding
upon the Subordinated Creditors, the Borrower and their respective successors
and assigns, and (c) inure to the benefit of, and be enforceable by, the Senior
Representative, the Senior Creditors and their respective successors,
transferees and assigns. Without limiting the generality of the clause (c) of
the immediately preceding sentence, any of the Lender Parties 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
Commitment, the Advances and any Note to be held by it) to any other Person, and
such other Person shall thereupon become vested with all the rights in respect
thereof granted to such Lender Party herein or otherwise, in each case as
provided in section 9.07 of the Credit Agreement.
SECTION 16. Execution in Counterparts. This Agreement 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. Delivery of an executed counterpart of a signature
13
page to this Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 17. Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the State of New York.
SECTION 18. Severability. In case any provision of this Agreement
------------
shall be invalid, illegal, or unenforceable, the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby.
IN WITNESS WHEREOF, the Subordinated Creditors and the Borrower each
has caused this Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
IRON AGE CORPORATION
By /s/ Xxxxx X. XxXxxxxxx
--------------------------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Executive Vice President
Address: Xxxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
IRON AGE HOLDINGS CORPORATION
By /s/ Xxxxx X. XxXxxxxxx
--------------------------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Vice President - Finance
Address: Iron Age Holdings Corporation
Xxxxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
IRON AGE INVESTMENT COMPANY
By /s/ Xxxxx X. XxXxxxxxx
------------------------------------------
Name: Xxxxx X. XxXxxxxxx
Title: President
Address: 000 Xxxx Xxxxxx
Xxxxxxxxxx, XX
00000
FALCON SHOE MFG. CO.
By /s/ Xxxxx X. XxXxxxxxx
------------------------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Vice President
Address: 0 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxx
00000-0000
IRON AGE CANADA LTD.
By /s/ Xxxxx X. XxXxxxxxx
------------------------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Treasurer
Address: 000 Xxxxx Xxxxxxxxx Xxxx
Xxxx 0
Xxxxxxx, Xxxxxxx
XXX00X0, XXXXXXX
IRON AGE DE MEXICO S.A. DE C.V.
By /S/ Xxxxx X. XxXxxxxxx
----------------------------------------
Name: Xxxxx X. XxXxxxxxx
Title:
Address: Carretera Xxxxxx-Porvenir
1568
9-B Centro Comercial
Satelite in Ciudad Xxxxxx
Chihuahua, MEXICO
