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EXHIBIT 10j
GUARANTY OF CORPORATION
FOR VALUE RECEIVED and in consideration of any loan or advance now or
hereafter made to ACME BOOT COMPANY, INC. or to ACME BOOT RETAIL CO., INC.
(collectively, together with their successors and assigns, "Borrower") by
NATIONSBANK, N.A. (SOUTH), formerly known as NationsBank of Georgia, N.A.
("NationsBank") under the Financing Agreement dated December 28, 1993 and under
the Inventory Financing Agreement, dated April 24, 1995 (as amended,
collectively, the "Financing Agreement"), which loans and advances will be to
the direct interest and advantage of the undersigned, and to induce NationsBank
from time to time to make loans to Borrower and enter into an extension of the
term of the Financing Agreement, the undersigned and NationsBank agree as
follows:
1. CHARACTER OF OBLIGATION. The undersigned hereby unconditionally guarantees
the full payment and performance by Borrower of all loans and advances under
the Financing Agreement, all obligations for letters of credit or agreements
with respect thereto, any drafts or any obligations for acceptances or
agreements with respect thereto, including all interest and other charges
relating thereto, however and whenever incurred or evidenced, whether direct or
indirect, absolute or contingent, or due or to become due (hereafter the
"Obligations"). The obligation of the undersigned hereunder is primary and
unconditional and shall be enforceable before, concurrently or after any claim
or demand is made or suit is filed against Borrower or any other guarantor or
surety, and before, concurrently or after any proceeding by NationsBank against
any security, and shall be effective regardless of the solvency or insolvency
of Borrower at any time, the extension or modification of the Obligations by
operation of law, or the subsequent reorganization, merger or consolidation of
Borrower, or any other change in its composition, nature, personnel or
location. The obligation hereunder may be considered by NationsBank either as
a guaranty or agreement of surety. Payment of any sum or sums due to
NationsBank hereunder will be made by the undersigned immediately upon demand
by NationsBank. If claim is ever made upon NationsBank for repayment or
recovery of any amount or amounts received by NationsBank in payment of any of
the Obligations and NationsBank repays all or part of said amount by reason of
(a) any judgment, decree or order of any court or administrative body having
jurisdiction over NationsBank or any of its property, or (b) any settlement or
compromise of any such claim effected by NationsBank with any such claimant
(including Borrower), then in such event the undersigned agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon the
undersigned, notwithstanding any revocation hereof or the cancellation of any
note or other instrument evidencing any of the Obligations, and the undersigned
shall be and remain obligated to NationsBank hereunder for the amount so repaid
or recovered to the same extent as if such amount had never originally
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been received by NationsBank. The undersigned agrees that the books and
records of NationsBank showing the account between NationsBank and Borrower
shall be admissible in evidence in any action or proceeding, shall be binding
upon the undersigned for the purpose of establishing the items therein set
forth, and shall constitute prima facie proof thereof, except that the monthly
statements rendered to Borrower by NationsBank shall, to the extent to which no
objection is made within thirty (30) days after date thereof, constitute an
account stated between NationsBank and Borrower binding upon the undersigned.
The undersigned agrees to pay all costs of NationsBank of collection of any sum
or sums due hereunder, and, if collected by or through an attorney, the lesser
of actual attorney's fees or reasonable attorneys' fees together with all other
legal and court expenses. The undersigned agrees that its obligation hereunder
shall not be discharged or impaired in any respect by reason of any failure by
NationsBank to perfect, or continue perfection of, any lien or security
interest in any security or any delay by NationsBank in perfecting any such
lien or security interest. The undersigned represents and warrants that it
will receive a direct benefit from NationsBank's loans to Borrower.
2. CONSENT AND WAIVER. The undersigned waives notice of acceptance hereof,
creation of any of the Obligations, or nonpayment or default by Borrower under
any of the Obligations or any agreement now or hereafter existing between
Borrower and NationsBank, presentment, demand, notice of dishonor, protest and
any other notices whatever. The undersigned waives the provisions of O.C.G.A.
Section 10-7-24. The undersigned, without affecting its liability hereunder,
consents to and waives notice of all changes of terms of the Obligations, the
withdrawal or extension of credit or time to pay, the release of the whole or
any part of the Obligations, renewal, indulgence, settlement, compromise or
failure to exercise due diligence in collection, the acceptance or release of
security, extension of the time to pay for any period or periods whether or not
longer than the original period, or any surrender, substitution or release of
any other person directly or indirectly liable for any of the Obligations or
any collateral security given by Borrower. The undersigned agrees that it
shall have no right of subrogation, reimbursement or indemnity whatsoever and
no right of recourse to or with respect to any assets or property of Borrower
or to any collateral for the Obligations, even upon payment in full of the
Obligations. The undersigned also consents to and waives notice of any
arrangements or settlements made in or out of court in the event of
receivership, liquidation, readjustment, any proceeding under Title 11 of the
United States Code (entitled "Bankruptcy") as amended, or assignment for the
benefit of creditors of Borrower, and anything whatever whether or not herein
specified which may be done or waived by or between NationsBank and Borrower,
or Borrower and any other person whose claim against Borrower has been or shall
be assigned or transferred to NationsBank. The undersigned agrees that if any
notification of intended disposition of collateral or of any other act by
NationsBank is required by law and a specific time period is not stated
therein, such notification, if mailed by first class mail at least five (5)
banking days before such disposition or act, postage prepaid, addressed to the
undersigned either at the address shown below or at any other address of the
undersigned appearing on the records of NationsBank, shall be deemed reasonably
and properly given. NationsBank may, subject to the provisions of the
Financing Agreement without notice of any kind, sell, assign or transfer any or
all of the Obligations and in such event each and every immediate and
successive assignee, transferee
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or holder of any of the Obligations shall have the right to enforce this
Guaranty, by suit or otherwise for the benefit of such assignee, transferee or
holder, as fully as if such assignee, transferee or holder were herein by name
specifically given such rights, powers and benefits; NationsBank shall have an
unimpaired right prior and superior to that of any such assignee, transferee or
holder to enforce this Guaranty for the benefit of NationsBank as to such of
the Obligations as is not sold, assigned or transferred. THE UNDERSIGNED
HEREBY WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED HEREON.
3. CONSTRUCTION. This Guaranty shall be governed by and construed and enforced
in accordance with the laws of the State of Georgia. Wherever possible, each
provision of this Guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Guaranty
shall be prohibited by or invalid under applicable law, said provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Guaranty. This Guaranty does not supersede any other guaranty or other
agreement executed by the undersigned, or any other guaranty in favor of
NationsBank; provided, however, this Guaranty does replace and supersede that
certain Guaranty of Corporation executed and delivered by the undersigned on
December 28, 1993.
4. BENEFIT. This Guaranty shall bind the undersigned, its successors and
assigns, and the rights and privileges of NationsBank hereunder shall inure to
the benefit of its successors and assigns, and this Guaranty shall be effective
with respect to loans or advances made by NationsBank's successors and assigns
to Borrower.
5. DURATION. This Guaranty shall continue in full force and effect until
terminated by the actual receipt by NationsBank by registered or certified mail
of written notice of termination from the undersigned. Such termination shall
be applicable only to transactions having their inception thereafter, and
rights and obligations arising out of transactions having their inception prior
to such termination shall not be affected.
6. MISCELLANEOUS. THE UNDERSIGNED HEREBY AGREES THAT (a) IF AN EVENT OF
DEFAULT OCCURS (AND HAS NOT BEEN WAIVED OR AMENDED) UNDER THAT CERTAIN
$800,000,000.00 CREDIT AGREEMENT, DATED AUGUST 16, 1993, AS AMENDED, BETWEEN
THE UNDERSIGNED AND ITS LENDERS, OR (b) IF THE UNDERSIGNED'S STANDARD & POOR'S
RATING FALLS BELOW BB+, NATIONSBANK SHALL BE ENTITLED TO ENFORCE ITS RIGHTS
UNDER THIS GUARANTY, INCLUDING, WITHOUT LIMITATION, DEMANDING PAYMENT OF THE
OBLIGATIONS. THE RIGHTS PROVIDED TO NATIONSBANK BY THIS PARAGRAPH 6 ARE IN
ADDITION TO ALL OTHER RIGHTS OF NATIONSBANK UNDER THIS GUARANTY.
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Wherefore the undersigned has caused this Guaranty to be executed by its duly
authorized officers and its seal affixed this 15th day of January, 1996, at
_______________________.
FRUIT OF THE LOOM, INC.
By:_______________________________________
(Title)
Attest:
______________________________________
(Secretary)
[Corporate Seal]
ACCEPTANCE
The foregoing Guaranty is accepted in Atlanta, Georgia this _____ day of
January, 1996.
NATIONSBANK, N.A. (SOUTH),
formerly known as NationsBank of
Georgia, N.A.
By: ______________________________________
(Title)
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