Exhibit 10.10
STORE GUARANTORS' GUARANTY
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This STORE GUARANTORS' GUARANTY (as it may be amended, supplemented or
otherwise modified from time to time, this "Guaranty") is dated as of May 25,
1996, by BERMANS, THE LEATHER EXPERTS, INC., a Delaware corporation ("Bermans"),
WILSONS HOUSE OF SUEDE, INC., a California corporation ("House of Suede"),
GODSONS TANNERY WEST, INC., a California corporation ("Tannery"), the GEORGETOWN
SUBSIDIARIES (the "Georgetown Subsidiaries") that are signatories hereto and the
INDIVIDUAL STORE SUBSIDIARIES (the "Individual Store Subsidiaries") that are
signatories hereto (Bermans, House of Suede, Tannery, the Georgetown
Subsidiaries and the Individual Store Subsidiaries are individually referred to
as a "Guarantor" and together as the "Guarantors"), in favor of GENERAL ELECTRIC
CAPITAL CORPORATION, a New York corporation, as agent ("Agent") on its behalf
and for the ratable benefit of the Lenders.
WHEREAS, Agent and the Lenders have entered into that certain Credit
Agreement of even date herewith (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement")
with Wilsons Leather Holdings Inc., a Minnesota corporation ("Borrower"), and
certain of Borrower's corporate Affiliates;
WHEREAS, Borrower will become liable for the Obligations, including,
without limitation, loans and other financial accommodations from the Lenders
(including Agent in its individual capacity) under the Credit Agreement;
WHEREAS, the Guarantors will derive substantial direct and indirect
benefit and advantage from the financial accommodations to Borrower set forth in
the Credit Agreement, including the loans and advances made to Borrower
thereunder, and it will be to the Guarantor's direct and indirect interest and
economic benefit to assist Borrower in procuring such financial accommodations
from the Lenders; and
WHEREAS, a condition to Agent and the Lenders entering into the Credit
Agreement is that the Guarantors execute and deliver this Guaranty;
NOW, THEREFORE, in consideration of the premises and in order to
induce Agent and the Lenders to enter into the Credit Agreement and the Lenders
to make loans thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Guarantors hereby
agree as follows:
SECTION 1. Definitions.
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Unless otherwise defined herein, all capitalized terms used herein
shall have the respective meanings assigned to such terms in Schedule A to the
Credit Agreement.
SECTION 2. Guaranty of Payment.
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(a) The Guarantors hereby absolutely and unconditionally guarantee
the full and prompt payment to Agent, for its benefit and the ratable benefit of
the Lenders, when due,
whether upon demand, at maturity or by reason of acceleration or otherwise and
at all times thereafter, of any and all existing and future Obligations.
(b) The Guarantors acknowledge that valuable consideration supports
this Guaranty, including, without limitation, the consideration set forth in the
recitals above as well as any commitment to lend, extension of credit or other
financial accommodation, whether heretofore or hereafter made by the Lenders to
Borrower, any extension, renewal or replacement of any of the Obligations; any
forbearance with respect to any of the Obligations or otherwise; any purchase of
Borrower's assets by the Lenders; or any other valuable consideration.
(c) The Guarantors agree that all payments under this Guaranty shall
be made in United States currency and in the same manner as provided for the
Obligations.
SECTION 3. Costs and Expenses.
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The Guarantors agree to pay on demand, if not paid by Borrower, all
costs and expenses of every kind incurred by Agent or the Lenders: (a) in
enforcing this Guaranty, (b) in collecting any of the Obligations from Borrower
or the Guarantors, (c) in realizing upon or protecting any collateral for this
Guaranty or for payment of any of the Obligations and (d) for any other purpose
related to the Obligations or this Guaranty. "Costs and expenses" as used in
the preceding sentence shall include, without limitation, reasonable attorneys'
fees incurred by Agent or, to the extent provided in the Credit Agreement, any
Lender in retaining counsel for advice, suit, appeal any insolvency or other
proceedings under the United States Bankruptcy Code or otherwise, or for any
purpose specified in the preceding sentence.
SECTION 4. Nature of Guaranty: Continuing, Absolute and Unconditional
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(a) This Guaranty is and is intended to be a continuing guaranty of
payment of the Obligations, independent of and in addition to any other
guaranty, endorsement, collateral or other agreement held by Agent or the
Lenders therefor or with respect thereto, whether or not furnished by the
Guarantors. The obligations of the Guarantors to repay the Obligations
hereunder shall be unlimited.
(b) Until the Obligations have been paid in full, the Guarantors
shall have no right, claim or remedy of subrogation, reimbursement, contribution
or any similar rights against Borrower or any other guarantor with respect to
the Obligations and hereby waive any right to enforce any remedy which Agent or
any Lender now has or may hereafter have against Borrower, any endorser or any
other guarantor of all or any part of the Obligations, and the Guarantors hereby
waive any benefit of, and any right to participate in, any security or
collateral given to Agent, on behalf of the Lenders, to secure payment of the
Obligations or any part thereof or any other liability of Borrower to Agent or
the Lenders. If any amount shall be paid to the Guarantors on account of any
payment made hereunder at any time when the Obligations shall not have been paid
in full, such amount shall be held in trust for the benefit of Agent and the
Lenders and shall forthwith be paid to Agent to be credited and applied, whether
the Obligations are matured or unmatured, in accordance with the terms of the
Credit Agreement. The Guarantors authorize Agent, on behalf of the Lenders, to
take any action or exercise any remedy with respect to the Collateral which
Agent, on behalf of the Lenders, in its sole discretion shall determine, without
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notice to the Guarantors. The Guarantors further agree that any and all claims
of any Guarantor against Borrower, any endorser or any other guarantor of all or
any part of the Obligations, or against any of their respective properties,
whether arising by reason of any payment by any Guarantor to Agent, on behalf of
the Lenders, pursuant to the provisions hereof, or otherwise, shall be
subordinate and subject in right of payment to the prior payment, in full of any
and all principal and interest, all fees, all reasonable costs of collection
(including reasonable attorneys' fees and time charges) and any other
liabilities or obligations owing to the Lenders by Borrower which may arise
either with respect to or on any note, instrument, document item, agreement or
other writing heretofore, now or hereafter delivered to any Lender or Agent. In
the event Agent, on behalf of the Lenders, in its sole discretion elects to give
notice of any action with respect to the Collateral securing the Obligations or
any part thereof, ten (10) days' written notice mailed to the Guarantors by
ordinary mail at the address shown hereon shall be deemed reasonable notice of
any matters contained in such notice. The Guarantors consent and agree that
Agent, on behalf of the Lenders, shall be under no obligation to marshal! any
assets in favor of the Guarantors or against or in payment of any or all of the
Obligations.
(c) For the further security of the Lenders and without in any way
diminishing the liability of the Guarantors, following the occurrence of an
Event of Default and acceleration of the Obligations of Borrower, all debts and
liabilities, present or future of Borrower to any Guarantor and all monies
received from Borrower or for its account by any Guarantor in respect thereof
shall be received in trust for the Lenders and forthwith upon receipt shall be
paid over to Agent, for the benefit of the Lenders, until all of such
Obligations have been paid in full.
(d) This Guaranty and the Guarantors' obligations hereunder are
absolute and unconditional and shall not be changed or affected by any
representation, oral agreement, act or thing whatsoever, except as herein
provided. This Guaranty is intended by the Guarantors to be the final, complete
and exclusive expression of the guaranty agreement between the Guarantors and
Agent, on behalf of the Lenders. No modification or amendment of any provision
of this Guaranty shall be effective unless in writing and signed by a duly
authorized officer of Agent, on its behalf and the ratable benefit of the
Lenders.
SECTION 5. Certain Rights and Obligations.
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(a) The Guarantors authorize Agent and the Lenders, without notice,
demand or any reservation of rights against the Guarantors and without impairing
or affecting the validity or enforceability of this Guaranty or the Guarantors'
obligations hereunder, from time to time: (i) to renew, extend, increase,
accelerate or otherwise change the time for payment of, the terms of or the
interest on the Obligations or any part thereof or grant other indulgences to
Borrower or others; (ii) to accept from any Person and hold collateral for the
payment of the Obligations or any part thereof, and to modify, exchange, enforce
or refrain from enforcing, or release, compromise, settle, waive, subordinate or
surrender, with or without consideration, such collateral or any part thereof;
(iii) to accept and hold any endorsement or guaranty of payment of the
Obligations or any part thereof, and to discharge, release or substitute any
such obligation of any such endorser or guarantor, or any Person who has given
any security interest in any collateral as security for the payment of the
Obligations or any part thereof, or any other Person in any way obligated to pay
the Obligations or any part thereof, and to enforce or refrain from
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enforcing, or compromise or modify, the terms of any obligation of any such
endorser, guarantor or Person; (iv) to dispose of any and all Collateral
securing the Obligations in any manner as Agent or the Lenders, in their sole
discretion, may deem appropriate, and to direct the order or manner of such
disposition and the enforcement of any and all endorsements and guaranties
relating to the Obligations or any part thereof as Agent or the Lenders, in
their sole discretion may determine; (v) except as otherwise provided in the
Credit Agreement, to determine the manner, amount and time of application of
payments and credits, if any, to be made on all or any part of any component or
components of the Obligations (whether principal interest, fees, costs and
expenses, or otherwise) including, without limitation, the application of
payments received from any source to the payment of indebtedness other than the
Obligations even though the Lenders might lawfully have elected to apply such
payments to the Obligations or to amounts which are not covered by this
Guaranty; and (vi) to take advantage or refrain from taking advantage of any
security or accept or make or refrain from accepting or making any compositions
or arrangements when and in such manner as Agent or the Lenders, in their sole
discretion, may deem appropriate and generally do or refrain from doing any act
or thing which might otherwise, at law or in equity, release the liability of
the Guarantors as guarantors or sureties in whole or in part, and in no case
shall Agent or the Lenders be responsible or shall the Guarantors be released
either in whole or in part for any act or omission in connection with Agent or
the Lenders having sold any security at an under value.
(b) If any default shall be made in the payment of any of the
Obligations and any grace period has expired with respect thereto, the
Guarantors hereby agree to pay the same in full to the extent hereinafter
provided: (i) without deduction by reason of any setoff, defense (other than
payment) or counterclaim of Borrower; (ii) without requiring presentment,
protest or notice of nonpayment or notice of default to any Guarantor, to
Borrower or to any other Person; (iii) without demand for payment or proof of
such demand or filing of claims with a court in the event of receivership,
bankruptcy or reorganization of Borrower; (iv) without requiring Agent or the
Lenders to resort first to Borrower (this being a guaranty of payment and not of
collection) or to any other guarantor or any other Person obligated with respect
to the Obligations or any collateral which the Lenders may hold; (v) without
requiring notice of acceptance hereof or assent hereto by Agent or the Lenders;
and (vi) without requiring notice that any of the Obligations has been incurred,
extended or continued or of the reliance by Agent or the Lenders upon this
Guaranty; all of which the Guarantors hereby waive.
(c) This Guaranty and the Guarantors' obligation hereunder shall at
all times be valid and enforceable and shall not be impaired or affected by any
other agreements or circumstances of any nature whatsoever which otherwise
constitute a defense to this Guaranty, including, without limitation, any of the
following, all of which the Guarantors hereby waive: (i) any failure or
omission to perfect or continue the perfection of any security interest in or
other lien on, or preserve rights to, any collateral securing payment of any of
the Obligations or the Guarantors' obligation hereunder; (ii) the invalidity,
unenforceability, propriety of manner of enforcement of, or loss or change in
priority of any such security interest or other lien or guaranty of the
Obligations; (iii) any failure or omission to protect, preserve or insure any
such collateral; (iv) failure of any Guarantor to receive notice of any intended
disposition of such collateral; (v) any defense arising by reason of the
cessation from any cause whatsoever of liability of Borrower including, without
limitation, any failure, negligence or omission by Agent or the Lenders in
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enforcing their claims against Borrower; (vi) any waiver of any right, remedy or
power or of any default with respect to the Obligations or any part thereof or
any release, settlement or compromise of any obligation of Borrower; (vii) the
invalidity or unenforceability of any of the Obligations or the invalidity or
unenforceability of any agreement relating thereto or with respect to any
collateral securing the Obligations or any part thereof; (viii) any change of
ownership of Borrower or the insolvency, bankruptcy or any other change in the
legal status of Borrower; (ix) any change in, or the imposition of, any law,
decree, regulation or other governmental act which does or might impair, delay
or in any way affect the validity, enforceability or the payment when due of the
Obligations; (x) the existence of any claim, setoff or other right which the
Guarantors may have at any time against Agent, any Lender, Borrower or any other
guarantor in connection herewith or any unrelated transaction; (xi) the failure
of Borrower or the Guarantors to maintain in full force, validity or effect or
to obtain or renew when required all governmental and other approvals, licenses
or consents required in connection with the Obligations or this Guaranty, or to
take any other action required in connection with the performance of all
obligations pursuant to the Obligations or this Guaranty; (xii) Agent's
election, on behalf of the Lenders, in any case instituted under chapter 11 of
the United States Bankruptcy Code, of the application of section 1111(b)(2) of
the United States Bankruptcy Code; (xiii) any borrowing, use of cash collateral,
or grant of a security interest by Borrower, as Borrower in possession, under
section 363 or 364 of the United States Bankruptcy Code; (xiv) the disallowance
of all or any portion of any of the Lenders' claims for repayment of the
Obligations under section 502 or 506 of the United States Bankruptcy Code; or
(xv) any other fact or circumstance which might otherwise constitute grounds at
law or in equity for the discharge or release of any Guarantor from its
obligations hereunder, all whether or not the Guarantors shall have had notice
or knowledge of any act or omission referred to in the foregoing clauses (i)
through (xv) of this subsection 5(c). It is agreed that the Guarantors'
liability hereunder is independent of any other guaranties or other obligations
at any time in effect with respect to the Obligations or any part thereof and
that the Guarantors' liability hereunder may be enforced regardless of the
existence, validity, enforcement or non-enforcement of any such other guaranties
or other obligations or any provision of any applicable law or regulation
purporting to prohibit payment by Borrower of the Obligations in the manner
agreed upon between the Lenders and Borrower.
(d) Credit may be granted or continued from time to time by the
Lenders to Borrower without notice to or authorization from the Guarantors
regardless of Borrower's financial or other condition at the time of any such
grant or continuation. Neither Agent nor any Lender shall have an obligation to
disclose or discuss with the Guarantors its assessment of the financial
condition of Borrower.
SECTION 6. Representations and Warranties.
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The Guarantors represent and warrant that:
(a) Existence. The Guarantors and their Subsidiaries (i) are
corporations duly organized, validly existing and in good standing under the
laws of their respective jurisdiction of incorporation and have been duly
qualified to conduct business and are in good standing in each other
jurisdiction where ownership or lease of property or the conduct of their
business require such qualification except where the failure to so qualify would
not have a Material Adverse
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Effect; (ii) have the requisite corporate power and authority and the legal
right to own, pledge, mortgage or otherwise encumber and operate their
properties, to lease the property they operate under lease and to conduct their
business as now, heretofore and proposed to be conducted; (iii) have all
material licenses, permits, consents or approvals from or by, and have made all
filings with, and have given all notices to, all Governmental Authorities having
jurisdiction, to the extent required for such ownership, operation and conduct;
(iv) are in compliance with their respective certificate or articles of
incorporation and bylaws; and (v) are in compliance with all applicable
provisions of law except where the failure to so be in compliance would not have
a Material Adverse Effect.
(b) Authority. The Guarantors have full power, authority and legal
right to enter into this Guaranty and the other Loan Documents to which they are
parties. The execution, delivery and performance by the Guarantors of this
Guaranty and such other Loan Documents: (i) have been duly authorized by all
necessary action on the part of the Guarantors; (ii) are not in contravention of
the teens of each Guarantor's respective certificate of incorporation or bylaws
or of any indenture, agreement or undertaking to which each Guarantor is a party
or by which each Guarantor or any of its property is bound; (iii) do not and
will not require any governmental consent, registration or approval or the
consent of any other Person that has not been obtained; (iv) do not and will not
contravene any contractual or governmental restriction to which any Guarantor or
any of its property may be subject; and (v) do not and will not, except as
contemplated herein, result in the imposition of any Lien upon any property of
any Guarantor under any existing indenture, mortgage, deed of trust, loan or
credit agreement or other material agreement or instrument to which any
Guarantor is a party or by which any Guarantor or any of its property may be
bound or affected.
(c) Binding Effect. This Guaranty and all of the other Loan
Documents to which the Guarantors are a party have been duly executed and
delivered by each Guarantor, are the legal, valid and binding obligations of
each Guarantor and are enforceable against each Guarantor in accordance with
their terms.
(d) Negative Pledge. The Guarantors are not a party to or bound by
any indenture, contract, instrument or other agreement which prohibits the
creation, incurrence or sufferance to exist of any Lien upon its property,
except the Loan Documents and the Subordinated Note.
(e) Survival of Representations and Warranties. All representations
and warranties contained in this Guaranty or any of the other Loan Documents to
which the Guarantors are a party shall survive the execution and delivery of
this Guaranty and the termination hereof.
(f) The Guarantors ratify and confirm the representations and
warranties made with respect to them in Section 3 of the Credit Agreement, which
are incorporated herein by reference.
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SECTION 7. Covenants.
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The Guarantors covenant that until the Obligations are paid in full
they shall perform, comply with and be bound by all of the terms and conditions
set forth in the Credit Agreement which relate to the Guarantors, including,
without limitation, Schedule E thereto, with such terms and conditions being
incorporated in this Guaranty by reference and shall cause Borrower to comply
with all covenants set forth in the Credit Agreement.
SECTION 8. Termination.
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This Guaranty shall remain in full force and effect until all of the
Obligations shall be finally and irrevocably paid in full and the Obligations
under the Credit Agreement shall have been terminated. Payment of all of the
Obligations from time to time shall not operate as a discontinuance of this
Guaranty. The Guarantors further agree that, to the extent that Borrower makes
a payment or payments to Agent or any of the Lenders on the Obligations, or
Agent or the Lenders receive any proceeds of Collateral securing the
Obligations, which payment or receipt of proceeds or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be returned or repaid to Borrower, its estate, trustee, receiver,
Borrower in possession or any other Person, including, without limitation, any
guarantor, under any insolvency or bankruptcy law, state or federal law, common
law or equitable cause, then to the extent of such payment, return or repayment,
the obligation or part thereof which has been paid, reduced or satisfied by such
amount shall be reinstated and continued in full force and effect as of the date
when such initial payment, reduction or satisfaction occurred, and this Guaranty
shall continue in full force notwithstanding any contrary action which may have
been taken by the Lenders in reliance upon such payment, and any such contrary
action so taken shall be without prejudice to Agent's or the Lenders' rights
under this Guaranty and shall be deemed to have been conditioned upon such
payment having become final and irrevocable.
SECTION 9. Guaranty of Performance.
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The Guarantors also guarantee the full, prompt and unconditional
performance of all obligations and agreements of every kind owed or hereafter to
be owed by any Guarantor or Borrower to Agent or the Lenders. Every provision
for the benefit of Agent or the Lenders contained in this Guaranty shall apply
to the guaranty of performance given in this Section 9.
SECTION 10. Taxes.
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All payments hereunder shall be made without any counterclaim or
setoff, free and clear of, and without reduction by reason of, any taxes,
levies, imposts, charges and withholdings, restrictions or conditions of any
nature other than taxes imposed on the net income of Agent or a Lender
("Taxes"), which are now or may hereafter be imposed, levied or assessed by any
country, political subdivision or taxing authority, all of which will be for the
account of and paid by the Guarantors. If for any reason, any such reduction is
made or any Taxes are paid by the Lender, the Guarantors will pay to Agent, for
the benefit of the Lenders, such additional amounts as may be necessary to
ensure that Agent, and the Lenders receive the same net amount which they would
have received had no reduction been made or Taxes paid.
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SECTION 11. Cross Guaranty.
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(a) Cross-Guaranty. Notwithstanding any provision herein contained
to the contrary, each Guarantor's liability under this Guaranty shall be limited
to an amount not to exceed as of any date of determination the greater of:
(i) the net amount of all intercompany loans advanced to such
Guarantor by Borrower or otherwise transferred to such Guarantor, or
(ii) the amount which could be claimed by Agent and the Lenders
from such Guarantor under this Guaranty without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy
Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform
Fraudulent Conveyance Act or similar statute or common law after taking
into account, among other things, such Guarantor's right of contribution
and indemnification from the other Guarantors under Section 11(b) hereof.
(b) Contribution with Respect to Guaranty Obligations.
(i) To the extent that any Guarantor shall make a payment
under this Guaranty of all or any of the Obligations (a "Guarantor
Payment") which, taking into account all other Guarantor Payments then
previously or concurrently, made by the other Guarantors, exceeds the
amount which such Guarantor would otherwise have paid if each Guarantor had
paid the aggregate Obligations satisfied by such Guarantor Payment in the
same proportion that such Guarantor's Allocable Amounts (as defined below)
(in effect immediately prior to such Guarantor Payment) bore to the
aggregate Allocable Amounts of all of the Guarantors in effect immediately
prior to the making of such Guarantor Payment, then such Guarantor shall be
entitled to receive contribution and indemnification payments from, and be
reimbursed by, each of the other Guarantors for the amount of such excess,
pro rata based upon their respective Allocable Amounts in effect
immediately prior to such Guarantor Payment.
(ii) As of any date of determination, the "Allocable Amount"-of
any Guarantor shall be equal to the maximum amount of the claim which could
then be recovered from such Guarantor hereunder without rendering such
claim voidable or avoidable under Section 548 of Chapter 11 of the
Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer
Act, Uniform Fraudulent Conveyance Act or similar statute or common law.
(iii) This Section 11(b) is intended only to define the relative
rights of the Guarantors and nothing set forth in this Section 11(b) is
intended to or shall impair the obligations of Guarantors, jointly and
severally, to pay any amounts as and when the same shall become due and
payable in accordance with the terms of this Guaranty.
(iv) The parties hereto acknowledge that the rights of
contribution and indemnification hereunder shall constitute assets of any
Guarantor to which such contribution and indemnification is owing.
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SECTION 12. Security.
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To secure payment of the Guarantors' obligations under this Guaranty,
concurrently with the execution of this Guaranty, the Guarantors are entering
into a Security Agreement pursuant to which they have granted to Agent a
security interest in all or substantially all of their respective personal
property other than fixtures and equipment.
SECTION 13. Miscellaneous.
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(a) In addition to and without limiting any other right, power or
remedy of Agent or any Lender, whenever Agent or the Lenders have the right to
declare any of the Obligations to be immediately due and payable (whether or not
it has been so declared), the Lenders at their sole election without notice to
the Guarantors may appropriate and setoff against the Obligations: (i) any and
all indebtedness or other monies due or to become due to any Guarantor by Agent
or the Lenders in any capacity; and (ii) any monies, credits or other property
belonging to any Guarantor (including all account balances, whether provisional
or final and whether or not collected or available) at any time held by or
coming into the possession of Agent or any of the Lenders, or any affiliate of
Agent or any of the Lenders, whether for deposit or otherwise, whether or not
the Obligations or the obligation to pay such monies owed by Agent or the
Lenders is then due, and Agent on behalf of the Lenders, is hereby granted a
security interest in and Lien upon such monies, credits and other property.
Agent or the Lenders shall be deemed to have exercised such right of set-off
immediately at the time of such election even though any charge therefor is made
or entered on Agent's or the Lenders' records subsequent thereto.
(b) In the event that acceleration of the time for payment of any of
the Obligations is stayed, upon the insolvency, bankruptcy or reorganization of
Borrower, or otherwise, all such amounts shall nonetheless be payable by the
Guarantors forthwith upon demand by Agent, on behalf of the Lenders.
(c) No delay on the part of Agent or any Lender in the exercise of
any right, power or remedy shall operate as a waiver thereof, and no single or
partial exercise by Agent or any Lender of any right, power or remedy shall
preclude any further exercise thereof; nor shall any amendment, supplement,
modification or waiver of any of the terms or provisions of this Guaranty be
binding upon Agent or the Lenders, except as expressly set forth in a writing
duly signed and delivered by Agent. The failure by Agent or any Lender at any
time or times hereafter to require strict performance by Borrower or any
Guarantor of any of the provisions, warranties, terms and conditions contained
in any promissory note, security agreement, agreement, indenture, guaranty,
instrument or document now or at any time or times hereafter executed by
Borrower or any Guarantor and delivered to Agent or any Lender shall not waive,
affect or diminish any right of Agent or any Lender 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 Agent or any Lender, their
agents, officers or employees, unless such waiver is contained in an instrument
in writing duly signed and delivered by Agent and/or the Lenders, as the case
may be. No waiver by Agent or the Lenders of any default shall operate as a
waiver of any other default hereunder or the same default on a future occasion,
and no action by Agent or the Lenders permitted hereunder shall in any way
affect or impair Agent's or any Lender's rights, powers or the obligations of
any
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Guarantor under this Guaranty. Any determination by a court of competent
jurisdiction of the amount of any Obligations owing by Borrower to the Lenders
shall be conclusive and binding on the Guarantors irrespective of whether
Borrower was a party to the suit or action in which such determination was made.
The rights and remedies of Agent and the Lenders hereunder are cumulative and
may be exercised singly or concurrently, and are not exclusive of any rights or
remedies provided by law.
(d) This Guaranty shall bind each Guarantor and the successors and
assigns of each Guarantor and shall inure to the benefit of Agent and the
Lenders and their successors and assigns. All references herein to Borrower
shall be deemed to include its successors and assigns including, without
limitation, a receiver, trustee or Borrower in possession of or for Borrower.
(e) Section headings in this Guaranty are included herein for
convenience of reference only and shall not constitute a part of this Guaranty
for any other purpose or be given any substantive effect.
(f) Whenever possible, each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law.
Any provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remainder of such
provision or the remaining provisions of this Guaranty, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(g) It is understood that while the amount of the Obligations is not
limited, if, in any action or proceeding involving any state or federal
bankruptcy, insolvency or other law affecting the rights of creditors generally,
this Guaranty would be held or determined to be void, invalid or unenforceable
on account of the amount of the aggregate liability under this Guaranty, then,
notwithstanding any other provision of this Guaranty to the contrary, the
aggregate amount of such liability shall, without any further action of the
Guarantors, the Lenders, Agent or any other Person, be automatically limited and
reduced to the highest amount which is valid and enforceable as determined in
such action or proceeding.
(h) This Guaranty sets forth the entire understanding and agreement
of the Guarantors and Agent with respect to the subject matter hereof and
supersedes all other understandings, oral or written, with respect to the
subject matter hereof.
(i) The Guarantors agree to pay all costs, reasonable fees and
expenses (including reasonable attorneys' fees) incurred by Agent or the Lenders
after a default by any Guarantor under this Guaranty.
(j) THE GUARANTORS AND AGENT HEREBY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN XXXX COUNTY, CITY OF
CHICAGO, ILLINOIS, AND IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS
RELATING TO THIS GUARANTY OR THE OTHER LOAN DOCUMENTS TO WHICH THE GUARANTORS
ARE A PARTY SHALL BE LITIGATED IN SUCH COURTS, AND THE GUARANTORS AND AGENT
10
WAIVE ANY OBJECTION WHICH THEY MAY HAVE BASED ON IMPROPER VENUE OF FORUM NON
CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND EACH WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL OR MESSENGER DIRECTED
TO IT AT THE ADDRESS SET FORTH IN SECTION 13 HEREOF AND AGREES THAT SUCH SERVICE
SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING CONTAINED IN THIS SECTION 12 SHALL
AFFECT THE RIGHT OF AGENT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR AFFECT THE RIGHT OF AGENT TO BRING ANY ACTION OR PROCEEDING AGAINST
THE GUARANTORS IN TEE COURTS OF ANY OTHER JURISDICTION TO THE EXTENT NECESSARY
TO ENFORCE ITS LIENS AGAINST ASSETS LOCATED IN SUCH JURISDICTION.
(k) THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED UNDER
AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF ILLINOIS,
WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS.
SECTION 14. Notices.
-------
Unless otherwise specifically provided herein, any notice or other
communication required or permitted to be given shall be in writing addressed to
the respective party as set forth below and may be personally served, telecopied
or sent by overnight courier service or United States mail certified or
registered and shall be deemed to have been given (a) if delivered in person,
when delivered; (b) if delivered by telecopy, on the date of transmission if
transmitted on a Business Day before 5:00 p.m. (Chicago time) or, if not, on the
next succeeding Business Day; (c) if delivered by overnight courier, two
Business Days after delivery to such courier properly addressed; or (d) if by
United States mail, four Business Days after depositing in the United States
mail, with postage prepaid and properly addressed.
Notices shall be addressed as follows:
(a) If to the Guarantors:
Wilsons House of Suede, Inc. as agent for the Store Guarantors:
000 Xxxxxxx 000 Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: _____________________
Telecopy: _____________________
with a copy to:
Faegre & Xxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
11
Attention: Xxxxx Xxxxxxxx
Telecopy: (000) 000-0000
(b) If to Agent:
General Electric Capital Corporation
000 Xxxx Xxxxxxx Xxxxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Wilsons Leather Account Manager
Telecopy: (000) 000-0000
with copies to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Telecopy: 312/558-5700
and
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Counsel
Telecopy: 203/316-7889
or in any case, to such other address as the party addressed shall have
previously designated by written notice to the serving party, given in
accordance with this Section 13. A notice not given as provided above shall, if
it is in writing, be deemed given if and when actually received by the party to
whom given.
SECTION 15. Waivers.
-------
(a) THE GUARANTORS WAIVE THE BENEFIT OF ALL VALUATION, APPRAISAL AND
EXEMPTION LAWS.
(b) IN THE EVENT OF A DEFAULT UNDER THE CREDIT AGREEMENT, THE
GUARANTORS HEREBY WAIVE ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND PRIOR TO
THE EXERCISE BY AGENT OR THE LENDERS OF THEIR RIGHTS TO REPOSSESS THE COLLATERAL
WITHOUT JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON THE COLLATERAL
WITHOUT PRIOR NOTICE OR HEARING. THE GUARANTORS ACKNOWLEDGE THAT THEY HAVE BEEN
ADVISED BY COUNSEL OF THEIR CHOICE WITH RESPECT TO THIS TRANSACTION AND THIS
GUARANTY.
12
(c) THE GUARANTORS AND AGENT ACKNOWLEDGE THAT THE TIME AND EXPENSE
REQUIRED FOR TRIAL BY JURY EXCEED THE TIME AND EXPENSE REQUIRED FOR A BENCH
TRIAL AND HEREBY WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY, ANY
OBJECTION BASED ON FORUM NON CONVENIENS, ANY OBJECTION TO VENUE OF ANY ACTION
INSTITUTED HEREUNDER, AND WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND
WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF AGENT OR THE LENDERS.
(d) THE GUARANTORS ABSOLUTELY, UNCONDITIONALLY AND IRREVOCABLY WAIVE
ANY RIGHT TO ASSERT ANY DEFENSE (OTHER THAN PAYMENT), SETOFF, COUNTERCLAIM OR
CROSSCLAIM OF ANY NATURE WHATSOEVER WITH RESPECT TO THIS GUARANTY OR THE
OBLIGATIONS OF ANY GUARANTOR HEREUNDER OR THE OBLIGATIONS OF ANY OTHER PERSON OR
PARTY (INCLUDING BORROWER) RELATING TO THIS GUARANTY, THE OBLIGATIONS OR THE
OBLIGATIONS OF ANY GUARANTOR IN ANY ACTION OR PROCEEDING BROUGHT BY THE LENDERS
TO COLLECT THE OBLIGATIONS OR TO ENFORCE THE OBLIGATIONS OF ANY GUARANTOR.
[signature pages follow]
13
IN WITNESS WHEREOF, this Guaranty has been executed as of the day
first written above.
ACADIANA MALL WILSONS, INC.
ANNAPOLIS WILSONS, INC.
ANTELOPE VALLEY WILSONS, INC.
ARDEN FAIR WILSONS, INC.
ARSENAL WILSONS, INC.
ATLANTA AIRPORT CONCOURSE T XXXXXX, INC.
AUBURN-MAINE WILSONS,-INC.
AUBURN WILSONS, INC.
AUGUSTA MALL WILSONS, INC.
AVENUE OF THE AMERICAS WILSONS, INC.
XXXXXXX HILLS WILSONS, INC.
BANGOR MALL WILSONS, INC.
XXXXXX CREEK WILSONS, INC.
BAYSHORE REASONS, INC.
BAYSHORE (CA) WILSONS, INC.
BAYSIDE TANNERY WEST, INC.
BEAVER VALLEY WILSONS, INC.
BELLEVUE BERMANS INC.
XXXXXX FAIR WILSONS, INC.
BERKSHIRE WILSONS, INC.
BERMANS, THE LEATHER EXPERTS, INC.
BIRCHWOOD MALL WILSONS, INC.
BOISE WILSONS, INC.
14
BOULDER WILSONS, INC.
BOULEVARD MALL WILSONS, INC.
BRAINTREE TANNERY WEST, INC.
BRIARWOOD WILSONS, INC.
BRIDGEWATER COMMONS WILSONS, INC.
BRUNSWICK SQUARE WILSONS, INC.
BUCKLAND HILLS PELLE CUIR, INC.
BURLINGTON WILSONS, INC.
XXXXXX WILSONS, INC.
CAMBRIDGE GALLERIA WILSONS, INC.
CAPITOL COURT WILSONS, INC.
CARBONDALE IL WILSONS, INC.
CAROLINA PLACE WILSONS, INC.
XXXXXX WILSONS, INC.
XXXX TOWN WILSONS, INC.
CASCADE MALL WILSONS, INC.
CENTURY CITY WILSONS, INC.
CHAMPLAIN CENTRE WILSONS, INC.
CHARLESTON CENTER WILSONS, INC.
CHARLESTOWNE WILSONS, INC.
CHAUTAUQUA WILSONS, INC.
CHERRY HILL WILSONS, INC.
CHICAGO RIDGE WILSONS, INC.
CHICAGO YARD WILSONS, INC.
CHRISTIANA WILSONS, INC.
15
CHULA VISTA WILSONS, INC.
CEILO VISTA WILSONS, INC.
CLERMONT COUNTY WILSONS, INC.
COLONIE WILSONS, INC.
CONCOURSE A WILSONS, INC.
CORONADO WILSONS, INC.
CORTANA MALL WILSONS, INC.
COUNCIL BLUFFS WILSONS, INC.
COUNTY FAIR WEAPONS, INC.
CROSS COUNTY WILSONS, INC.
CROSS CREEK MALL WILSONS, INC.
CROSSROADS WILSONS, INC., A NEVADA CORPORATION
CROSSROADS WILSONS, INC., A UTAH CORPORATION
CRYSTAL WATERFORD WILSONS, INC.
CUMBERLAND WILSONS, INC.
DAKOTA SQUARE WILSONS, INC.
DANBURY FAIR WILSONS, INC.
DEL AMO BERMANS, INC.
EASTFIELD WILSONS, INC.
EASTLAND MALL WILSONS, INC.
EASTLAND (MICH.) WILSONS, INC.
EASTPOINT WILSONS, INC.
EASTVIEW WILSONS, INC.
EMERALD SQUARE WILSONS, INC.
16
ESCONDIDO WILSONS, INC.
FAIRLANE WILSONS, INC.
FASHION PLACE WILSONS, INC.
FASHION SQUARE-SAGINAW WILSONS, INC.
FLATBUSH WILSONS, INC.
FOOTHILLS WILSONS, INC.
FORD CITY PELLE CUIR, INC.
FOUR SEASONS WILSONS, INC.
FOX RUN WILSONS, INC.
XXXXXXXX XXXXX BERMANS OUTLET, INC.
GARDEN STATE TANNERY WEST, INC.
GENESEE VALLEY WILSONS, INC.
GOLF MILL WILSONS, INC.
GOVERNOR'S SQUARE WILSONS, INC.
GRAND RAPIDS WILSONS, INC.
GRAND TRAVERSE XXXXXX, INC.
GREAT MALL XXXXXX LEATHER OUTLET, INC.
GREAT NORTHWEST BERMANS OUTLET, INC.
GREEN ACRES WILSONS, INC.
GURNEE XXXXX XXXXXXX OUTLET, INC.
GWINNETT PLACE WILSONS, INC.
XXXXXXXX PLACE WILSONS, INC.
XXXXXXXX WILSONS, INC.
XXXXX MALL WILSONS, INC.
17
HANFORD WILSONS, INC.
HARRISBURG WILSONS, INC.
HARTSFIELD ATRIUM WILSONS, INC.
XXXXXXX WILSONS, INC.
XXXXXXXXX WILSONS, INC.
HICKORY RIDGE BERMANS, INC.
HOLYOKE WILSONS, INC.
XXXXX MALL WILSONS, INC.
HUNTINGTON-WEST VA. WILSONS, INC.
XXXXXX PARK WILSONS, INC.
IRONDEQUOIT WILSONS, INC.
IRVING WILSONS, INC.
JANESVILLE WILSONS, INC.
JEFFERSON YORKTOWN WILSONS, INC.
XXXXX WILSONS, INC.
KENWOOD WILSONS, INC.
KING OF PRUSSIA WILSONS, INC.
KITSAP MALL WILSONS, INC.
LAKEVIEW SQUARE WILSONS, INC.
LAKEWOOD WILSONS, INC.
LANDMARK CENTER (VA) WILSONS, INC.
LANESBOROUGH BERKSHIRE MALL WILSONS, INC.
LANSING MALL WILSONS, INC.
LAREDO WILSONS, INC.
00
XXXXXX XXXX WILSONS, INC.
XXXXXX HILLS WILSONS, INC.
LEOMINSTER WILSONS, INC.
LIBERTY TREE MALL WILSONS, INC.
LINDALE WILSONS, INC.
XXXXXXXXXX MALL WILSONS, INC.
LONG BEACH WILSONS, INC.
LONG RIDGE WILSONS, INC.
MACHESNEY WILSONS, INC.
MACON MALL WILSONS, INC.
MADISON SQUARE WILSONS, INC.
MAIN PLACE WILSONS, INC.
MAINE MALL WILSONS, INC.
MALL AT 163RD ST. WILSONS, INC.
MARLEY STATION WILSONS, INC.
MENLO PARK WILSONS, INC.
MERIDEN SQUARE WILSONS, INC.
METRO WILSONS, INC.
MIDLAND MALL WILSONS HOUSE OF SUEDE, INC.
MIDLAND MALL WILSONS, INC.
MID-RIVERS BERMANS, INC.
MILITARY CIRCLE WILSONS, INC.
MISSION VALLEY WILSONS, INC.
MONROEVILLE WILSONS, INC.
19
MONTCLAIR WILSONS, INC.
MONTEBELLO WILSONS, INC.
NANUET TANNERY WEST, INC.
NATICK MALL WILSONS, INC.
NESHAMINY WILSONS, INC.
NEWBURGH MALL WILSONS, INC.
NEWPORT CITY WILSONS, INC.
NORTHGATE WILSONS, INC.
NORTH COUNTY FAIR TANNERY WEST, INC.
NORTH EAST WILSONS, INC.
NORTH DARTMOUTH WILSONS, INC.
NORTHGATE-DURHAM WILSONS, INC.
NORTHPOINT WILSONS, INC.
NORTHSHORE WILSONS, INC.
NORTHTOWN WILSONS, INC.
OAKRIDGE WILSONS, INC.
OAKVIEW WILSONS, INC.
OAKWOOD WILSONS, INC.
OCEAN COUNTY WILSONS, INC.
OLD CAPITAL CENTER WILSONS, INC.
ONODAGA COUNTY REASONS, INC.
ORLAND SQUARE WILSONS, INC.
ORLANDO FASHION WILSONS, INC.
PARADISE VALLEY MALL WILSONS, INC.
XXXXXXX XXXX XXXXXXX, XXX.
00
XXXX XXXX WILSONS, INC.
PARK LANE WILSONS, INC.
PARK PLAZA WILSONS, INC.
PARKERSBURG WILSONS, INC.
PARKWAY PLAZA WILSONS, INC.
PARMATOWN WILSONS, INC.
PEACHTREE MALL WILSONS, INC.
PENTAGON CITY TANNERY WEST, INC.
PHEASANT WILSONS, INC.
PHILADELPHIA GALLERY WILSONS, INC.
PHILLIPSBURG WILSONS, INC.
PITTSBURGH WILSONS, INC.
PORTAGE WILSONS, INC.
POUGHKEEPSIE GALLERIA WILSONS, INC.
RACEWAY WILSONS, INC.
RANDHURST WILSONS, INC.
RD. SQUARE WILSONS, INC.
RIDGEDALE TANNERY WEST, INC.
RIVERCHASE WILSONS, INC.
RI-WARWICK WILSONS HOUSE OF SUEDE, INC.
ROANOKE WILSONS, INC.
ROCKAWAY TANNERY WEST, INC.
ROCKINGHAM PARK WILSONS, INC.
ROGUE VALLEY WILSONS, INC.
21
ROOSEVELT FIELD TANNERY WEST, INC.
ROOSEVELT FIELD WILSONS, INC.
XXXX XXXX WILSONS, INC.
RUSHMORE MALL WILSONS, INC.
SACRAMENTO WILSONS, INC.
SALISBURY CENTRE WILSONS, INC.
SALMON RUN WILSONS, INC.
SAN LEANDRO WILSONS, INC.
SANDUSKY MALL WILSONS, INC.
SANTA XXXXX WILSONS, INC.
SANTA XXXXX WILSONS, INC.
SANTA XXXX WILSONS, INC.
SAWGRASS XXXXX XXXXXXX OUTLET, INC.
SCOTTSDALE FASHION WILSONS, INC.
SERRAMONTE WILSONS, INC.
SHERWOOD WILSONS, INC.
SHOPPINGTOWN WILSONS, INC.
SIERRA VISTA WILSONS, INC.
XXXXX HAVEN TANNERY WEST, INC.
XXXXX HAVEN WILSONS, INC.
XXXXXX LEATHER OF WARWICK, RI, INC.
XXXXXX MALL WILL
SOUTH HILL (WA) WILSONS, INC.
SOUTH HILLS WILSONS, INC.
SOUTH SQUARE WILSONS, INC.
22
SOUTHERN HILLS WILSONS, INC.
SOUTHLAKE WILSONS, INC.
SOUTHWEST PLAZA WILSONS, INC.
SPOTSYLVANIA WILSONS, INC.
SPRING HILL WILSONS, INC.
SQUARE ONE WILSONS, INC.
STATEN ISLAND WILSONS, INC.
STEEPLEGATE WILSONS, INC.
STEINWAY STREET WILSONS, INC.
STONERIDGE TANNERY WEST, INC.
STONEWOOD WILSONS, INC.
STRATFORD SQUARE WILSONS, INC.
ST. XXXXXXX WILSONS, INC.
ST. XXXXXXXX CENTER WILSONS, INC.
SWANSEA WILSONS, INC.
TACOMA WILSONS, INC.
XXXXXX TOWNSHIP WILSONS, INC.
THE OAKS WILSONS, INC.
TOUHY AVENUE PELLE CUIR, INC.
TOWN CENTER WILSONS, INC.
TOWNE EAST WILSONS, INC.
TRUMBULL PARK WILSONS, INC.
TUCSON MALL WILSONS, INC.
TWELVE OAKS TANNERY WEST, INC.
TYLER MALL WILSONS, INC.
23
TYLER WILSONS, INC.
UNIVERSITY MALL WILSONS, INC.
VALLEY WEST WILSONS, INC.
VANCOUVER WILSONS, INC.
XXXXXX VALLEY WILSONS, INC.
XXXXX COUNTY WILSONS, INC.
WEST COVINA WILSONS, INC.
WESTLAND-DETROIT WILSONS, INC.
WESTMINSTER (COLO.) WILSONS, INC.
WHITE PLAINS GALLERIA WILSONS, INC.
WILLOWBROOK WILSONS, INC.
WILSONS HOUSE OF SUEDE, INC.
WILSONS TANNERY WEST, INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF ARLINGTON,
VA, INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF BETHESDA, MD,
INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF COLUMBIA, MD,
INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF XXXX CITY,
VA, INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF DENVER, CO,
INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF FAIRFAX, VA,
INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF FARMINGTON,
CT, INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF GAITHERSBURG,
MD, INC.
24
WILSONS/GEORGETOWN LEATHER DESIGN OF KING OF
PRUSSIA, PA, INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF LANDOVER, MD,
INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF XXXXXX, VA,
INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF NASHVILLE,
TN, INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF OWINGS, MD,
INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF SPRINGFIELD,
VA, INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF STAMFORD, CT,
INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF ST. LOUIS,
MO, INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF TOWSON, MD,
INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF WILLOW GROVE,
PA, INC.
WILSONS/GEORGETOWN LEATHER DESIGN OF WOODBRIDGE,
NJ. INC.
WOODBRIDGE MALL WILSONS, INC.
YAKIMA WILSONS, INC.
YORK MALL WILSONS, INC.
YUBA CITY WILSONS, INC.
By:__________________________
Name:________________________
The authorized officer of
each of the foregoing corporations
25
