EXHIBIT 10.2
DOMESTIC SUBSIDIARY GUARANTY
DOMESTIC SUBSIDIARY GUARANTY, dated as of September 22, 2006 (the
"SUBSIDIARY GUARANTY") made by BAZOOKA, INC., a Washington corporation, OAKLEY
SALES CORP., a Washington corporation, OAKLEY DIRECT, INC., a Washington
corporation, IACON, INC., a Washington corporation, THE OPTICAL SHOP OF ASPEN, a
California corporation, XXXXXX XXXXXXX, INC., a California corporation, and
BARTER OPTICAL, INC., a Washington corporation (the "GUARANTORS"), in favor of
JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") under the Credit Agreement dated as of September 22,
2006 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among Oakley, Inc. (the "COMPANY"), the Borrowing
Subsidiaries party thereto (the Company and the Borrowing Subsidiaries
collectively, the "BORROWERS"), the Administrative Agent and the Lenders party
thereto (the "Lenders"), and THE LENDERS.
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make Loans and other extensions of credit to the Borrowers upon the
terms and subject to the conditions set forth therein;
WHEREAS, the Borrowers are members of an affiliated group of corporations
that includes the Guarantors;
WHEREAS, the proceeds of the Loans and other extensions of credit will be
used in part to enable the Borrowers to make valuable transfers to the
Guarantors in connection with the operation of their businesses;
WHEREAS, the Guarantors and the Borrowers are engaged in related
businesses, and the Guarantors will derive substantial direct and indirect
benefit from the making of the Loans and other extensions of credit; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to
make their respective Loans and other extensions of credit to the Borrowers
under the Credit Agreement that the Guarantors and the other Guarantor
Subsidiaries (if any) referred to in the Credit Agreement shall have executed
and delivered to the Administrative Agent, for the ratable benefit of the
Lenders, a guaranty (each, a "SUBSIDIARY GUARANTY").
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective Loans and other extensions of credit
to the Borrowers under the Credit Agreement, the Guarantors hereby agree with
the Administrative Agent, for the ratable benefit of the Lenders, as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
(b) As used herein, "OBLIGATIONS" means the collective reference to the
unpaid principal of and interest on the Loans and LC Disbursements and all other
obligations and liabilities of the Borrowers to the Administrative Agent or the
Lenders (including, without limitation, interest accruing at the then applicable
rate provided in the Credit Agreement after the maturity of the Loans or LC
Disbursements and interest accruing at the then applicable rate provided in the
Credit Agreement after (or but for) the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding, relating
to any Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred, which may
arise under, out of, or in connection with, the Credit Agreement, the other Loan
Documents or any other document made, delivered or given in connection
therewith, whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to the Administrative Agent or to the
Lenders that are required to be paid by any Borrower, the Guarantors, or any
other Guarantor Subsidiary pursuant to the terms of the Credit Agreement, this
Subsidiary Guaranty, any other Subsidiary Guaranty or any other Loan Document).
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Subsidiary Guaranty shall refer to this Subsidiary
Guaranty as a whole and not to any particular provision of this Subsidiary
Guaranty, and section and paragraph references are to this Subsidiary Guaranty
unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
2. Guaranty. (a) Subject to the provisions of paragraph (b), each
Guarantor hereby unconditionally and irrevocably guarantees to the
Administrative Agent, for the ratable benefit of the Lenders and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by each Borrower when due (whether at the
stated maturity, by acceleration or otherwise) of the Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under applicable laws relating to the insolvency of debtors.
(c) Each Guarantor further agrees to pay any and all expenses (including,
without limitation, all fees and disbursements of counsel) which may be paid or
incurred by the Administrative Agent or any Lender in enforcing, or obtaining
advice of counsel in respect of, any rights with respect to, or collecting, any
or all of the Obligations and/or enforcing any rights with respect to, or
collecting against, such Guarantor under this Subsidiary Guaranty. This
Subsidiary Guaranty shall (i) remain in full force and effect until the
Obligations (other than contingent indemnification and expense reimbursement
obligations as to which no claim has been asserted ("CONTINGENT OBLIGATIONS"))
are paid in full and the Commitments are terminated, notwithstanding that from
time to time prior thereto any Borrower may be free from any
Obligations, and (ii) automatically terminate upon the payment in full of the
Obligations (other than Contingent Obligations) and the termination of the
Commitments.
(d) Each Guarantor agrees that the Obligations may at any time and from
time to time exceed the amount of the liability of such Guarantor hereunder
without impairing this Subsidiary Guaranty or affecting the rights and remedies
of the Administrative Agent or any Lender hereunder.
(e) No payment or payments made by any Borrower, any Guarantor, any other
guarantor or any other Person or received or collected by the Administrative
Agent or any Lender from any Borrower, any Guarantor, any other guarantor or any
other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or
in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of any Guarantor hereunder, which shall,
notwithstanding any such payment or payments other than payments made by such
Guarantor in respect of the Obligations or payments received or collected from
such Guarantor in respect of the Obligations, remain liable for the Obligations
up to the maximum liability of such Guarantor hereunder until the Obligations
are paid in full and the Commitments are terminated.
(f) Any and all payments by or on account of any obligation of any
Guarantor hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if any Guarantor shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this paragraph) the Administrative Agent or the relevant Lender (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Guarantor shall make such deductions and
(iii) such Guarantor shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law. In addition, such
Guarantor shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law. Each Guarantor shall indemnify the
Administrative Agent and each Lender, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent or such Lender, as the case may be, on or with respect
to any payment by or on account of any obligation of such Guarantor hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this paragraph) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to such Guarantor by a Lender,
or by the Administrative Agent on its own behalf or on behalf of a Lender, shall
be conclusive absent manifest error. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Guarantor to a Governmental Authority,
such Guarantor shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent. For the
purposes of this paragraph only, (i) "Indemnified Taxes" means Taxes other than
Excluded Taxes and (ii) "Excluded Taxes" means, with respect to the
Administrative Agent, any Lender, any Issuing Bank or any other recipient of any
payment to be made by any Guarantor hereunder, (x) income or franchise taxes
imposed on (or measured by) its net income by the United States of America,
or by the jurisdiction under the laws of which such recipient is organized or
in which its principal office is located, or, in the case of any Lender, in
which its applicable lending office is located, (y) any branch profits taxes
imposed by the United States of America or any political subdivision thereof or
any similar tax imposed by any other jurisdiction in which such Guarantor is
located and (z) in the case of a Foreign Lender, any withholding tax (1) with
respect to amounts payable by any Person that is a Borrower under the Credit
Agreement at the time such Foreign Lender first becomes a party to the Credit
Agreement, at the rate applicable to such amounts on such date under the laws
and treaties in effect at such time, or (2) to the extent attributable to such
Foreign Lender's failure to comply with a request of the Company to provide the
documentation described in Section 2.16(e) of the Credit Agreement.
(g) Each Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent or any Lender on
account of its liability hereunder, it will notify the Administrative Agent in
writing that such payment is made under this Guarantee for such purpose.
3. Right of Contribution. Each Guarantor hereby agrees that, to the extent
that any Guarantor Subsidiary shall have paid more than its proportionate share
of any payments made in respect of the Subsidiary Guaranties, such Guarantor
Subsidiary shall be entitled to seek and receive contribution from and against
the Guarantors hereunder. Each Guarantor Subsidiary's right of contribution
shall be subject to the terms and conditions of Section 5 hereof. The provisions
of this Section shall in no respect limit the obligations and liabilities of any
Guarantor Subsidiary to the Administrative Agent and the Lenders, and each
Guarantor Subsidiary shall remain liable to the Administrative Agent and the
Lenders for the full amount guaranteed by such Guarantor Subsidiary under its
Subsidiary Guaranty.
4. Right of Set-off. If an Event of Default shall have occurred and be
continuing, each Guarantor hereby irrevocably authorizes the Administrative
Agent and each Lender at any time and from time to time, to the fullest extent
permitted by law and without notice to any Guarantor or any other guarantor, any
such notice being expressly waived by each Guarantor, to set-off and appropriate
and apply any and all deposits (general or special, time or demand, provisional
or final), in any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by the Administrative Agent or
such Lender to or for the credit or the account of such Guarantor, or any part
thereof in such amounts as the Administrative Agent or such Lender may elect,
against and on account of the obligations and liabilities of such Guarantor to
the Administrative Agent or such Lender hereunder and claims of every nature and
description of the Administrative Agent or such Lender against such Guarantor,
in any currency, whether arising hereunder, under the Credit Agreement, any
other Loan Documents or otherwise, as the Administrative Agent or such Lender
may elect, whether or not the Administrative Agent or any Lender has made any
demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Administrative Agent and each Lender shall notify
such Guarantor promptly of any such set-off and the application made by the
Administrative Agent or such Lender, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of the Administrative Agent and each Lender under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) which the Administrative Agent or such Lender may have.
5. No Subrogation. Notwithstanding any payment or payments made by any of
the Guarantor Subsidiaries under any Subsidiary Guaranty or any set-off or
application of funds of any of the Guarantor Subsidiaries by any Lender, the
Guarantors shall not be entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against any Borrower or any Guarantor
Subsidiary or other guarantor or any collateral security or guarantee or right
of offset held by the Administrative Agent or any Lender for the payment of the
Obligations, nor shall the Guarantors seek or be entitled to seek any
contribution or reimbursement from any Borrower or any Guarantor Subsidiary or
other guarantor in respect of payments made by any Guarantor hereunder, until
all amounts owing to the Administrative Agent and the Lenders by the Borrowers
on account of the Obligations are paid in full and the Commitments are
terminated. If any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full or the Commitments shall not have been terminated, such amount
shall be held by such Guarantor in trust for the Administrative Agent and the
Lenders, segregated from other funds of such Guarantor, and shall, promptly upon
receipt by such Guarantor, be turned over to the Administrative Agent in the
exact form received by such Guarantor (duly indorsed by such Guarantor to the
Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Administrative Agent may
determine.
6. Amendments, etc. with respect to the Obligations; Waiver of Rights. The
Guarantors shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Guarantors and without notice to or further
assent by the Guarantors, any demand for payment of any of the Obligations made
by the Administrative Agent or any Lender may be rescinded by such party and any
of the Obligations continued, and the Obligations, or the liability of any other
party upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any
Lender, and the Credit Agreement, and the other Loan Documents and any other
documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Administrative
Agent (or the Required Lenders, as the case may be) may deem advisable from time
to time, and any collateral security, guarantee or right of offset at any time
held by the Administrative Agent or any Lender for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Obligations or for this Subsidiary Guaranty or any property subject thereto.
When making any demand hereunder against any Guarantor, the Administrative Agent
or any Lender may, but shall be under no obligation to, make a similar demand on
any Borrower or any other Guarantor Subsidiary or other guarantor, and any
failure by the Administrative Agent or any Lender to make any such demand or to
collect any payments from any such Borrower or other Guarantor Subsidiary or
other guarantor or any release of any such Borrower or other Guarantor
Subsidiary or other guarantor shall not relieve the Guarantors of their
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Administrative
Agent or any Lender against the Guarantors. For the purposes hereof "demand"
shall include the commencement and continuance of any legal proceedings.
7. Guaranty Absolute and Unconditional. The Guarantors waive any and all
notice of the creation, renewal, extension or accrual of any of the Obligations
and notice of or proof of
reliance by the Administrative Agent or any Lender upon this Subsidiary Guaranty
or acceptance of this Subsidiary Guaranty, the Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Subsidiary Guaranty;
and all dealings between the Borrowers (or any of them) and any of the
Guarantors, on the one hand, and the Administrative Agent and the Lenders, on
the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon this Subsidiary Guaranty. The Guarantor
Subsidiaries waive diligence, presentment, protest, demand for payment and
notice of default or nonpayment to or upon any Borrower or any of the other
Guarantor Subsidiaries or other guarantors with respect to the Obligations. The
Guarantors understand and agree that this Subsidiary Guaranty shall be construed
as a continuing, absolute and unconditional guaranty of payment without regard
to (a) the validity, regularity or enforceability of the Credit Agreement, or
any other Loan Document, any of the Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any Lender, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by any
Borrower against the Administrative Agent or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of any Borrower,
any Guarantor Subsidiary or other guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of any Borrower for the
Obligations, of any Guarantor Subsidiary under its Subsidiary Guaranty, or of
any other guarantor, in bankruptcy or in any other instance. When pursuing its
rights and remedies hereunder against the Guarantors, the Administrative Agent
and any Lender may, but shall be under no obligation to, pursue such rights and
remedies as it may have against any Borrower, any other Guarantor Subsidiary,
any other guarantor or any other Person or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and
any failure by the Administrative Agent or any Lender to pursue such other
rights or remedies or to collect any payments from any such Borrower, other
Guarantor Subsidiary or other guarantor or other Person or to realize upon any
such collateral security or guarantee or to exercise any such right of offset,
or any release of any such Borrower, other Guarantor Subsidiary or other
guarantor or other Person or any such collateral security, guarantee or right of
offset, shall not relieve the Guarantors of any liability hereunder, and shall
not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Administrative Agent and the Lenders
against the Guarantors. This Subsidiary Guaranty shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon the
Guarantors and the respective successors and assigns thereof, and shall inure to
the benefit of the Administrative Agent and the Lenders, and their respective
successors, indorsees, transferees and assigns, until all the Obligations and
the obligations of the Guarantors under this Subsidiary Guaranty shall have been
satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
any Borrower may be free from any Obligations.
8. Reinstatement. This Subsidiary Guaranty shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored or
returned by the Administrative Agent or any Lender upon the insolvency,
bankruptcy, administration, dissolution, liquidation or reorganization of any
Borrower or any Guarantor Subsidiary or other guarantor, or upon or as a result
of the appointment of a receiver, administrative receiver, administrator,
intervenor or conservator of, or trustee or similar officer for, any Borrower or
any Guarantor Subsidiary or
other guarantor or any substantial part of the property of such Borrower,
Guarantor Subsidiary or other guarantor, or otherwise, all as though such
payments had not been made.
9. Payments. The Guarantors hereby guarantee that payments hereunder will
be paid to the Administrative Agent without set-off or counterclaim in the
relevant currency at the administrative office specified by the Administrative
Agent.
10. Representations and Warranties. Each Guarantor hereby represents and
warrants that each of the representations and warranties made in Article 3 of
the Credit Agreement is true and correct. Each Guarantor agrees that the
foregoing representations and warranties shall be deemed to have been made by
such Guarantor on the date of each borrowing by any Borrower under the Credit
Agreement on and as of such date of borrowing as though made hereunder on and as
of such date.
11. Authority of Administrative Agent. The Guarantors acknowledge that the
rights and responsibilities of the Administrative Agent under this Subsidiary
Guaranty with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Subsidiary Guaranty shall, as between the Administrative
Agent and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Administrative Agent and the Guarantors, the Administrative Agent
shall be conclusively presumed to be acting as agent for the Lenders with full
and valid authority so to act or refrain from acting, and the Guarantors shall
not be under any obligation, or entitlement, to make any inquiry respecting such
authority.
12. Notices. All notices, requests and demands to or upon the
Administrative Agent, any Lender or the Guarantors to be effective shall be in
writing (or by telex, fax or similar electronic transfer confirmed in writing)
and shall be deemed to have been duly given or made when delivered by hand or if
given by mail, when deposited in the mails by certified mail, return receipt
requested, or if by telex, fax or similar electronic transfer, when sent and
receipt has been confirmed, addressed as follows:
(b) if to the Administrative Agent or any Lender, at its address or
transmission number for notices provided in Section 10.01 of the Credit
Agreement; and
(c) if to a Guarantor, at its address or transmission number for notices
set forth under its signature below.
The Administrative Agent, each Lender and each Guarantor may change its
address and transmission numbers for notices by notice in the manner provided in
this Section.
13. Severability. Any provision of this Subsidiary 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 remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14. Integration. This Subsidiary Guaranty represents the agreement of the
Guarantors with respect to the subject matter hereof and there are no promises
or representations by the Administrative Agent or any Lender relative to the
subject matter hereof not reflected herein.
15. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of the
terms or provisions of this Subsidiary Guaranty may be waived, amended,
supplemented or otherwise modified except by a written instrument executed in
accordance with Section 10.02 of the Credit Agreement.
(b) Neither the Administrative Agent nor any Lender shall by any act
(except by a written instrument pursuant to Section 15(a) hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent or any Lender,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Administrative Agent or any Lender of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Administrative Agent or such Lender would
otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
16. Section Headings. The section headings used in this Subsidiary
Guaranty are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
17. Successors and Assigns. This Subsidiary Guaranty shall be binding upon
each Guarantor's successors and assigns and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns.
18. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Subsidiary Guaranty shall be construed in accordance with and governed by the
law of the State of New York.
(b) Each Guarantor hereby irrevocably and unconditionally submits, for
itself and its Property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Subsidiary Guaranty, or for recognition or enforcement of any judgment, and each
Guarantor hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each
Guarantor agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions, to the extent permitted
by law, by suit on the judgment or in any other manner provided by law. Nothing
in this Subsidiary Guaranty or any other Loan Document shall affect any right
that the Administrative Agent, or any Lender may otherwise have to bring any
action or proceeding
relating to this Subsidiary Guaranty against any Guarantor or its properties in
the courts of any jurisdiction.
(c) Each Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Subsidiary Guaranty in any court referred to
in paragraph (b) of this Section 18. Each Guarantor hereby irrevocably waives,
to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(d) Each Guarantor agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to CT
Corporation System Inc. at its address at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or to the Guarantor at the address set forth underneath its signature
hereinbelow and agrees that nothing herein shall affect the right of the
Administrative Agent or any Lender to effect service of process in any other
manner permitted by law.
19. (a) Each Guarantor's obligations hereunder to make payments in a
specified currency (the "OBLIGATION CURRENCY") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by the
Administrative Agent or a Lender of the full amount of the Obligation Currency
expressed to be payable to the Administrative Agent or such Lender under this
Subsidiary Guaranty. If, for the purpose of obtaining or enforcing judgment
against any Guarantor in any court or in any jurisdiction, it becomes necessary
to convert into or from any currency other than the Obligation Currency (such
other currency being hereinafter referred to as the "JUDGMENT CURRENCY") an
amount due in the Obligation Currency, the conversion shall be made, at the rate
of exchange (as quoted by the Administrative Agent or if the Administrative
Agent does not quote a rate of exchange on such currency, by a known dealer in
such currency designated by the Administrative Agent) determined, in each case,
as of the Business Day immediately preceding the date on which the judgment is
given (such Business Day being hereinafter referred to as the "JUDGMENT CURRENCY
CONVERSION DATE").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, each Guarantor covenants and agrees to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount), as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining any rate of exchange or currency
equivalent for this Section, such amounts shall include any premium and costs
payable in connection with the purchase of the Obligation Currency.
20. WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS SUBSIDIARY GUARANTY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH GUARANTOR (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT THE PARTIES TO THE CREDIT AGREEMENT
HAVE BEEN INDUCED TO ENTER INTO THE CREDIT AGREEMENT BY, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
21. Additional Guarantors. From time to time subsequent to the date
hereof, Subsidiaries of the Company may become parties hereto, as additional
Guarantors (each, an "ADDITIONAL GUARANTOR"), by executing a counterpart of this
Subsidiary Guaranty. Upon delivery of any such counterpart to the Administrative
Agent, notice of which is hereby waived by the Guarantors, each such Additional
Guarantor shall be a Guarantor and shall be as fully a party hereto as if such
Additional Guarantor were an original signatory hereof. Each Guarantor expressly
agrees that its obligations arising hereunder shall not be affected or
diminished by the addition or release of any other Guarantor hereunder. This
Subsidiary Guaranty shall be fully effective as to any Guarantor that is or
becomes a party hereto regardless of whether any other Person becomes or fails
to become or ceases to be a Guarantor hereunder.
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee to
be duly executed and delivered by its duly authorized officer as of the day and
year first above written.
BAZOOKA, INC.
/s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
Address for Notices:
One Icon
Xxxxxxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
OAKLEY SALES CORP.
/s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: President
Address for Notices:
One Icon
Xxxxxxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
OAKLEY DIRECT, INC.
/s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: President
Address for Notices:
One Icon
Xxxxxxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
THE OPTICAL SHOP OF ASPEN
/s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: President
Address for Notices:
One Icon
Xxxxxxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
XXXXXX XXXXXXX, INC.
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer and
Chief Operating Officer
Address for Notices:
One Icon
Xxxxxxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
IACON, INC.
/s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Address for Notices:
One Icon
Xxxxxxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
BARTER OPTICAL, INC.
/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
Address for Notices:
One Icon
Xxxxxxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
