GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement"), dated as of March
15, 2005, is made by EACH OF THE UNDERSIGNED AND EACH OTHER PERSON WHO SHALL
BECOME A PARTY HERETO BY EXECUTION OF A GUARANTY JOINDER AGREEMENT (each a
"Guarantor" and collectively the "Guarantors") to UNION BANK OF CALIFORNIA, N.
A. a national banking association organized and existing under the laws of the
United States, as Trustee (in such capacity, the "Trustee") pursuant to that
certain Indenture dated as of June 22, 2004, between Kellwood Company, a
Delaware corporation (the "Company") and the Trustee, as supplemented by that
certain Supplemental Indenture dated as of the date hereof (as supplemented from
time to time, the "Indenture"). All capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Indenture.
W I T N E S S E T H:
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WHEREAS, pursuant to the Indenture the Company has issued its 3.50%
Convertible Senior Debentures due 2034 (the "Debentures");
WHEREAS, each Guarantor is, directly or indirectly, a material domestic
Subsidiary of the Company and materially benefits from the Debentures issued
under the Indenture;
WHEREAS, the Company has entered into a Credit Agreement dated as of
October 20, 2004 (herein, as the same may be amended, supplemented or modified
from time to time called the "Credit Agreement"), among the Company, various
lenders party thereto (the "Lenders"), Bank of America, N.A., as Trustee, and
Banc of America Securities LLC, as sole lead arranger and sole book manager;
WHEREAS, the Credit Agreement requires that each Guarantor execute and
deliver a guaranty agreement as more fully provided for therein (herein as the
same may be amended, supplemented or modified from time to time called the
"Credit Agreement Guaranty") with respect to the Company's obligations under the
Credit Agreement and related documents; and
WHEREAS, the Guarantors have deemed it advisable and in the best
interest of the Guarantors to voluntarily execute and deliver this Guaranty
Agreement to the Trustee for the benefit of the Debentureholders, it being
understood that this Guaranty Agreement shall automatically terminate concurrent
with any release or termination of the Credit Agreement Guaranty.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. GUARANTY. Subject to the termination provisions in Section 22
hereof, each Guarantor hereby jointly and severally, unconditionally,
absolutely, continually and irrevocably guarantees to the Trustee for the
benefit of the Debentureholders the payment and performance in full of the
Guaranteed Liabilities (as defined below). For all purposes of this Guaranty
Agreement, "Guaranteed Liabilities" means: (a) the Company's prompt payment in
full, when due or declared due and at all such times, of all obligations and all
other amounts pursuant to the terms of the Indenture and Debentures and all
other documents heretofore, now or at any time or times hereafter owing,
arising, due or payable from the Company to the Trustee, including principal,
interest, premiums and fees (including, but not limited to, costs, expenses or
disbursements of counsel); and (b) the Company's prompt, full and faithful
performance, observance and discharge of each and every agreement, undertaking,
covenant and provision to be performed, observed or discharged by the Company
under the Indenture, the Debentures and all other documents delivered therewith;
provided that the Guaranteed Liabilities shall not apply to any performance,
observance or discharge by the Company of any of the provisions of Article 15 of
the Indenture. The Guarantors' obligations to the Trustee under this Guaranty
Agreement are hereinafter collectively referred to as the "Guarantors'
Obligations" and, with respect to each Guarantor individually, the "Guarantor's
Obligations." Notwithstanding the foregoing, the liability of each Guarantor
individually with respect to its Guarantor's Obligations shall be limited to an
aggregate amount equal to the largest amount that would not render its
obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any comparable provisions of any applicable state law.
Each Guarantor agrees that it is jointly and severally, directly and primarily
liable (subject to the limitation in the immediately preceding sentence) for the
Guaranteed Liabilities.
2. PAYMENT. If the Company shall default in payment or performance of
any of the Guaranteed Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and fees, costs, expenses or
disbursements of counsel), or otherwise, when and as the same shall become due,
and after expiration of any applicable grace period, whether according to the
terms of the Indenture, by acceleration, or otherwise, or upon the occurrence
and during the continuance of any Event of Default under the Indenture, then any
or all of the Guarantors will, upon demand thereof by the Trustee, fully pay to
the Trustee, for the benefit of the Trustee, subject to any restriction on each
Guarantor's Obligations set forth in Section 1 hereof, an amount equal to all
the Guaranteed Liabilities then due and owing.
3. ABSOLUTE RIGHTS AND OBLIGATIONS. This is a guaranty of payment and
not of collection. The Guarantors' Obligations under this Guaranty Agreement
shall be joint and several, absolute and unconditional irrespective of, and each
Guarantor hereby expressly waives, to the extent permitted by law, any defense
to its obligations under this Guaranty Agreement, the Indenture and the
Debentures to which it is a party by reason of:
(a) any lack of legality, validity or enforceability of the
Indenture, of any of the Debentures, or of any other agreement or
instrument created, providing security for, or otherwise relating to
any of the Guarantors' Obligations, any of the Guaranteed Liabilities,
or any other guaranty of any of the Guaranteed Liabilities (the
Indenture and Debentures and all such other agreements and instruments
being collectively referred to as the "Related Agreements");
(b) any action taken under any of the Related Agreements, any
exercise of any right or power therein conferred, any failure or
omission to enforce any right conferred thereby, or any waiver of any
covenant or condition therein provided;
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(c) any acceleration of the maturity of any of the Guaranteed
Liabilities, of the Guarantor's Obligations of any other Guarantor, or
of any other obligations or liabilities of any Person under any of the
Related Agreements;
(d) any release, exchange, non-perfection, lapse in
perfection, disposal, deterioration in value, or impairment of any
security for any of the Guaranteed Liabilities, for any of the
Guarantor's Obligations of any Guarantor, or for any other obligations
or liabilities of any Person under any of the Related Agreements;
(e) any dissolution of the Company or any Guarantor or any
other party to a Related Agreement, or the combination or consolidation
of the Company or any Guarantor or any other party to a Related
Agreement into or with another entity or any transfer or disposition of
any assets of the Company or any Guarantor or any other party to a
Related Agreement;
(f) any extension (including without limitation extensions of
time for payment), renewal, amendment, restructuring or restatement of,
any acceptance of late or partial payments under, or any change in the
amount of any borrowings available under, the Indenture, any of the
Debentures or any other Related Agreement, in whole or in part;
(g) the existence, addition, modification, termination,
reduction or impairment of value, or release of any other guaranty of
the Guaranteed Liabilities (including without limitation the
Guarantor's Obligations of any other Guarantor and obligations arising
under any other Guaranty now or hereafter in effect);
(h) any waiver of, forbearance or indulgence under, or other
consent to any change in or departure from any term or provision
contained in the Indenture, any Debenture or any other Related
Agreement, including without limitation any term pertaining to the
payment or performance of any of the Guaranteed Liabilities, any of the
Guarantor's Obligations of any other Guarantor, or any of the
obligations or liabilities of any party to any other Related Agreement;
(i) any other circumstance whatsoever (with or without notice
to or knowledge of any Guarantor) which may or might in any manner or
to any extent vary the risks of such Guarantor, or might otherwise
constitute a legal or equitable defense available to, or discharge of,
a surety or a guarantor, including without limitation any right to
require or claim that resort be had to the Company or any other
Guarantor or any collateral in respect of the Guaranteed Liabilities or
Guarantors' Obligations.
It is the express purpose and intent of the parties hereto that this Guaranty
Agreement and the Guarantors' Obligations hereunder and under each Guaranty
Joinder Agreement shall be absolute and unconditional under any and all
circumstances and shall not be discharged except by payment as herein provided.
4. CURRENCY AND FUNDS OF PAYMENT. All Guarantors' Obligations will be
paid in lawful currency of the United States of America and in immediately
available funds, regardless of any law, regulation or decree now or hereafter in
effect that might in any manner affect the Guaranteed Liabilities, or the rights
of the Trustee with respect thereto as against the Company, or cause or permit
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to be invoked any alteration in the time, amount or manner of payment by the
Company of any or all of the Guaranteed Liabilities.
5. EVENTS OF DEFAULT. Without limiting the provisions of Section 2
hereof, in the event that there shall occur and be continuing an Event of
Default, then, subject to and in accordance with the provisions of Article 7 of
the Indenture, the Guarantors' Obligations shall become due and payable.
6. TRUSTEE. In acting hereunder, the Trustee shall be entitled to all
rights, privileges, protections, immunities and indemnities provided to it under
the Indenture.
7. SUITS. Each Guarantor from time to time shall pay to the Trustee for
the benefit of the Trustee, on demand, at the Trustee's place of business set
forth in the Indenture or such other address as the Trustee shall give notice of
to such Guarantor, the Guarantors' Obligations as they become or are declared
due, and in the event such payment is not made forthwith, the Trustee may
proceed to suit against any one or more or all of the Guarantors. At the
Trustee's election, one or more and successive or concurrent suits may be
brought hereon by the Trustee against any one or more or all of the Guarantors,
whether or not suit has been commenced against the Company, any other Guarantor,
or any other Person and whether or not the Trustee have taken or failed to take
any other action to collect all or any portion of the Guaranteed Liabilities or
have taken or failed to take any actions against any collateral securing payment
or performance of all or any portion of the Guaranteed Liabilities, and
irrespective of any event, occurrence, or condition described in Section 3
hereof.
8. SET-OFF AND WAIVER. Each Guarantor waives any right to assert
against the Trustee as a defense, counterclaim, set-off, recoupment or cross
claim in respect of its Guarantor's Obligations, any defense (legal or
equitable) or other claim which such Guarantor may now or at any time hereafter
have against the Company the Trustee without waiving any additional defenses,
set-offs, counterclaims or other claims otherwise available to such Guarantor.
9. WAIVER OF NOTICE; SUBROGATION.
(a) Each Guarantor hereby waives to the extent permitted by
law notice of the following events or occurrences: (i) acceptance of
this Guaranty Agreement; (ii) presentment, demand, default,
non-payment, partial payment and protest; and (iii) any other event,
condition, or occurrence described in Section 3 hereof. Each Guarantor
agrees that the Trustee may heretofore, now or at any time hereafter do
any or all of the foregoing in such manner, upon such terms and at such
times as the Trustee, in its sole and absolute discretion, deems
advisable, without in any way or respect impairing, affecting, reducing
or releasing such Guarantor from its Guarantor's Obligations, and each
Guarantor hereby consents to each and all of the foregoing events or
occurrences.
(b) Each Guarantor hereby agrees that payment or performance
by such Guarantor of its Guarantor's Obligations under this Guaranty
Agreement may be enforced by the Trustee on behalf of the Trustee upon
demand by the Trustee to such Guarantor without the Trustee being
required, such Guarantor expressly waiving to the extent permitted by
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law any right it may have to require the Trustee, to (i) prosecute
collection or seek to enforce or resort to any remedies against the
Company or any other Guarantor or any other guarantor of the Guaranteed
Liabilities, or (ii) seek to enforce or resort to any remedies with
respect to any security interests, liens or encumbrances granted to the
Trustee or any Debentureholder or other party to a Related Agreement by
the Company, any other Guarantor or any other Person on account of the
Guaranteed Liabilities or any guaranty thereof, IT BEING EXPRESSLY
UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY SUCH GUARANTOR THAT DEMAND
UNDER THIS GUARANTY AGREEMENT MAY BE MADE BY THE TRUSTEE, AND THE
PROVISIONS HEREOF ENFORCED BY THE TRUSTEE, EFFECTIVE AS OF THE FIRST
DATE ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE INDENTURE
AND THE GUARANTEED LIABILITIES ARE THEN DUE AND PAYABLE.
(c) Each Guarantor further agrees with respect to this
Guaranty Agreement that it shall have no right of subrogation,
reimbursement, contribution or indemnity, nor any right of recourse to
security for the Guaranteed Liabilities unless and until 93 days
immediately following the Indenture Termination Date (as defined below)
shall have elapsed without the filing or commencement, by or against
any Guarantor, of any state or federal action, suit, petition or
proceeding seeking any reorganization, liquidation or other relief or
arrangement in respect of creditors of, or the appointment of a
receiver, liquidator, trustee or conservator in respect to, such
Guarantor or its assets. This waiver is expressly intended to prevent
the existence of any claim in respect to such subrogation,
reimbursement, contribution or indemnity by any Guarantor against the
estate of any other Guarantor within the meaning of Section 101 of the
Bankruptcy Code, in the event of a subsequent case involving any other
Guarantor. If an amount shall be paid to any Guarantor on account of
such rights at any time prior to termination of this Guaranty Agreement
in accordance with the provisions of Section 22 hereof, such amount
shall be held in trust for the benefit of the Trustee and shall
forthwith be paid to the Trustee, for the benefit of the
Debentureholder, to be credited and applied upon the Guarantors'
Obligations, whether matured or unmatured, in accordance with the terms
of the Indenture or otherwise as the Trustee may elect. The agreements
in this subsection shall survive repayment of all of the Guarantors'
Obligations, the termination or expiration of this Guaranty Agreement
in any manner, including but not limited to termination in accordance
with Section 22 hereof, and occurrence of the Indenture Termination
Date. For purposes of this Guaranty Agreement, "Indenture Termination
Date" means the date as of which the Company shall have made final
payment in full of all outstanding amounts under the Debentures and the
Indenture (including all principal, interest, fees and expenses) and
the Indenture shall have otherwise been satisfied and discharged in
accordance with Article 13 thereof.
10. EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement shall be
effective as of the date first above written and shall continue in full force
and effect until termination in accordance with Section 22 hereof. Any claim or
claims that the Trustee may at any time hereafter have against a Guarantor under
this Guaranty Agreement may be asserted by the Trustee on behalf of the Trustee
by written notice directed to such Guarantor in accordance with Section 24
hereof.
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11. REPRESENTATIONS AND WARRANTIES. Each Guarantor warrants and
represents to the Trustee, for the benefit of the Debentureholders, that it is
duly authorized to execute and deliver this Guaranty Agreement (or the Guaranty
Joinder Agreement to which it is a party, as applicable), and to perform its
obligations under this Guaranty Agreement, that this Guaranty Agreement (or the
Guaranty Joinder Agreement to which it is a party, as applicable) has been duly
executed and delivered on behalf of such Guarantor by its duly authorized
representatives; that this Guaranty Agreement (and any Guaranty Joinder
Agreement to which such Guarantor is a party) is legal, valid, binding and
enforceable against such Guarantor in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles; and that such
Guarantor's execution, delivery and performance of this Guaranty Agreement (and
any Guaranty Joinder Agreement to which such Guarantor is a party) do not
violate or constitute a breach of any of its organizational documents, any
agreement or instrument to which such Guarantor is a party, or any law, order,
regulation, decree or award of any governmental authority or arbitral body to
which it or its properties or operations is subject.
12. EXPENSES. Each Guarantor agrees to be jointly and severally liable
for the payment of all reasonable fees and expenses, including fees, costs,
expenses or disbursements of counsel, incurred by the Trustee in connection with
the enforcement of this Guaranty Agreement, whether or not suit be brought.
13. REINSTATEMENT. Each Guarantor agrees that this Guaranty Agreement
shall continue to be effective or be reinstated, as the case may be, at any time
payment received by the Trustee or any Debentureholder in respect of any
Guaranteed Liabilities is rescinded or must be restored for any reason, or is
repaid by the Trustee or any Debentureholder in whole or in part in good faith
settlement of any pending or threatened avoidance claim.
14. ATTORNEY-IN-FACT. To the extent permitted by law, each Guarantor
hereby appoints the Trustee, for the benefit of the Debentureholders, as such
Guarantor's attorney-in-fact for the purposes of carrying out the provisions of
this Guaranty Agreement and taking any action and executing any instrument which
the Trustee may deem necessary or advisable to accomplish the purposes hereof,
which appointment is coupled with an interest and is irrevocable; provided, that
the Trustee shall have and may exercise rights under this power of attorney only
upon the occurrence and during the continuance of an Event of Default.
15. RELIANCE. Each Guarantor represents and warrants to the Trustee,
for the benefit of the Debentureholders, that: (a) such Guarantor has adequate
means to obtain on a continuing basis (i) from the Company, information
concerning the Company's financial condition and affairs and (ii) from other
reliable sources, such other information as it deems material in deciding to
provide this Guaranty Agreement and any Guaranty Joinder Agreement ("Other
Information"), and has full and complete access to Company's books and records
and to such Other Information; (b) such Guarantor is not relying on the Trustee
or its employees, directors, agents or other representatives or Affiliates, to
provide any such information, now or in the future; (c) such Guarantor has been
furnished with and reviewed the terms of the Indenture and the Debentures as it
has requested, is executing this Guaranty Agreement (or the Guaranty Joinder
Agreement to which it is a party, as applicable) freely and deliberately, and
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understands the obligations and financial risk undertaken by providing this
Guaranty Agreement (and any Guaranty Joinder Agreement); (d) such Guarantor has
relied solely on the Guarantor's own independent investigation, appraisal and
analysis of the Company, the Company's financial condition and affairs, the
"Other Information", and such other matters as it deems material in deciding to
provide this Guaranty Agreement (and any Guaranty Joinder Agreement) and is
fully aware of the same; and (e) such Guarantor has not depended or relied on
the Trustee or its employees, directors, agents or other representatives or
Affiliates, for any information whatsoever concerning the Company or the
Company's financial condition and affairs or any other matters material to such
Guarantor's decision to provide this Guaranty Agreement (and any Guaranty
Joinder Agreement), or for any counseling, guidance, or special consideration or
any promise therefor with respect to such decision. Each Guarantor agrees that
the Trustee does not have any duty or responsibility whatsoever, now or in the
future, to provide to such Guarantor any information concerning the Company or
the Company's financial condition and affairs, or any Other Information, other
than as expressly provided herein, and that, if such Guarantor receives any such
information from the Trustee or its employees, directors, agents or other
representatives or Affiliates, such Guarantor will independently verify the
information and will not rely on the Trustee or its employees, directors, agents
or other representatives or Affiliates, with respect to such information.
16. RULES OF INTERPRETATION. The rules of interpretation contained in
Section 1.01 of the Indenture shall be applicable to this Guaranty Agreement and
each Guaranty Joinder Agreement and are hereby incorporated by reference. All
representations and warranties contained herein shall survive the delivery of
documents and any extension of credit referred to herein or guaranteed hereby.
17. ENTIRE AGREEMENT. This Guaranty Agreement and each Guaranty Joinder
Agreement, together with the Indenture and Related Agreements, constitutes and
expresses the entire understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior negotiations, agreements,
understandings, inducements, commitments or conditions, express or implied, oral
or written, except as herein contained. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof. Except as provided in Section 22, neither this Guaranty
Agreement nor any Guaranty Joinder Agreement nor any portion or provision hereof
or thereof may be changed, altered, modified, supplemented, discharged,
canceled, terminated, or amended orally or in any manner other than as provided
in the Indenture.
18. BINDING AGREEMENT; ASSIGNMENT. This Guaranty Agreement, each
Guaranty Joinder Agreement and the terms, covenants and conditions hereof and
thereof, shall be binding upon and inure to the benefit of the parties hereto
and thereto, and to their respective heirs, legal representatives, successors
and assigns; provided, however, that no Guarantor shall be permitted to assign
any of its rights, powers, duties or obligations under this Guaranty Agreement,
any Guaranty Joinder Agreement or any other interest herein or therein without
the prior written consent of the Trustee. All references herein to the Trustee
shall include any successor thereof.
19. [INTENTIONALLY OMITTED]
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20. SEVERABILITY. The provisions of this Guaranty Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provision hereof,
but this Guaranty Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
21. COUNTERPARTS. This Guaranty Agreement may be executed in any number
of counterparts each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Guaranty
Agreement to produce or account for more than one such counterpart executed by
the Guarantor against whom enforcement is sought. Without limiting the foregoing
provisions of this Section 21, the provisions of Section 16.13 of the Indenture
shall be applicable to this Guaranty Agreement.
22. TERMINATION. (a) Subject to reinstatement pursuant to Section 13
hereof, this Guaranty Agreement and each Guaranty Joinder Agreement, and all of
the Guarantors' Obligations hereunder (excluding those Guarantors' obligations
relating to Guaranteed Liabilities that expressly survive such termination)
shall terminate on the Indenture Termination Date.
(b) Upon any release or termination of the Credit Agreement Guaranty with
respect to any Guarantor (a "Released Guarantor"), such Released Guarantor
hereunder shall automatically be deemed to be released of all of its obligations
hereunder and this Guaranty Agreement shall automatically terminate and cease to
have any further force or effect with respect to such Released Guarantor. Each
Released Guarantor shall promptly notify the Trustee of any such release or
termination of this Guaranty Agreement with respect to such Released Guarantor,
it being understood, however, that the failure to so notify the Trustee shall
not affect the release of the obligations of such Released Guarantor hereunder
or the termination of this Guaranty Agreement with respect to such Released
Guarantor. Following notification by a Released Guarantor to the Trustee of the
release and termination of the Credit Agreement Guaranty with respect to such
Released Guarantor (accompanied by a copy of such release), the Trustee agrees
to confirm in writing to the Company and the Released Guarantor the release and
termination of this Guaranty Agreement with respect to such Released Guarantor,
it being understood, however, that the failure of the Trustee to so confirm such
release and termination shall not in any way impair the automatic release and
termination of this Guaranty Agreement with respect to such Released Guarantor
concurrent with any release or termination of the Credit Agreement Guaranty with
respect to such Released Guarantor.
(c) Immediately upon the performance, observance or discharge by the Company of
any of the provisions of Article 15 of the Indenture, all of the Guarantors'
Obligations hereunder shall terminate.
23. REMEDIES CUMULATIVE; LATE PAYMENTS. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies of the Trustee
or any other Debentureholder provided by law or under the Indenture, or other
applicable agreements or instruments. Any amounts not paid when due under this
Guaranty Agreement shall bear interest at the rate provided for in the Indenture
and the Debentures.
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24. NOTICES. Any notice required or permitted hereunder or under any
Guaranty Joinder Agreement shall be given, (a) with respect to each Guarantor,
at the address of the Company indicated in Section 16.03 of the Indenture and
(b) with respect to the Trustee, at the Trustee's address indicated in Section
16.03 of the Indenture. All such addresses may be modified, and all such notices
shall be given and shall be effective, as provided in Section 16.03 of the
Indenture for the giving and effectiveness of notices and modifications of
addresses thereunder.
25. JOINDER. Each Person who shall at any time execute and deliver to
the Trustee a Guaranty Joinder Agreement substantially in the form attached as
Exhibit A hereto shall thereupon irrevocably, absolutely and unconditionally
become a party hereto and obligated hereunder as a Guarantor, and all references
herein and in the Indenture to the Guarantors or to the parties to this Guaranty
Agreement shall be deemed to include such Person as a Guarantor hereunder.
26. GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS GUARANTY AGREEMENT AND ANY GUARANTY
JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR
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
GUARANTY AGREEMENT AND ANY GUARANTY JOINDER AGREEMENT OR ANY OTHER
RELATED DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT,
AND EACH OF THE PARTIES HERETO 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 COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED
BY LAW. NOTHING IN THIS GUARANTY AGREEMENT AND ANY GUARANTY JOINDER
AGREEMENT OR IN ANY OTHER RELATED DOCUMENT SHALL AFFECT ANY RIGHT THAT
THE TRUSTEE OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS GUARANTY AGREEMENT AND ANY GUARANTY JOINDER
AGREEMENT OR ANY OTHER RELATED DOCUMENT AGAINST THE GUARANTOR OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
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(c) WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY AGREEMENT AND ANY GUARANTY JOINDER AGREEMENT OR ANY OTHER
RELATED DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN
ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS
TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION
16.03 OF THE INDENTURE. NOTHING IN THIS GUARANTY AGREEMENT AND ANY
GUARANTY JOINDER AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
27. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY 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 GUARANTY AGREEMENT AND ANY GUARANTY JOINDER AGREEMENT OR ANY
OTHER DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AGREEMENT AND ANY
GUARANTY JOINDER AGREEMENT AND THE OTHER DOCUMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Guaranty Agreement as of the day and year first written above.
GUARANTORS:
AMERICAN RECREATION PRODUCTS, INC.
BIFLEX INTERNATIONAL, INC.
XXXXXX NEW YORK, INC.
DORBY FROCKS, LTD.
HALMODE APPAREL, INC.
PHAT FASHIONS LLC
PHAT LICENSING LLC
SIERRA DESIGNS ACQUISITION CORPORATION
By:/s/ W. Xxx Xxxxx, III
Name: W. Xxx Xxxxx, III
Title: Senior Vice President Finance
COSTURA DOMINICANA, INC.
GERBER CHILDRENSWEAR, INC.
By: /s/ W. Xxx Xxxxx, III
Name: W. Xxx Xxxxx, III
Title: Senior Vice President Finance and Chief
Financial Officer
GCI IP SUB, INC.
KELLWOOD FINANCIAL RESOURCES, INC.
KWD HOLDINGS, INC.
By: /s/ W. Xxx Xxxxx, III
Name: W. Xxx Xxxxx, III
Title: President
GCW HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and General Counsel
KORET OF CALIFORNIA, INC.
NEW CAMPAIGN, INC.
By: /s/ W. Xxx Xxxxx, III
Name: W. Xxx Xxxxx, III
Title: Vice President Finance
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TRUSTEE:
UNION BANK OF CALIFORNIA, N.A., as Trustee
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
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EXHIBIT A
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FORM OF GUARANTY JOINDER AGREEMENT
GUARANTY JOINDER AGREEMENT
THIS GUARANTY JOINDER AGREEMENT (the "Guaranty Joinder Agreement"),
dated as of _____________, 20__ is made by _______________________________, a
________________ (the "Joining Guarantor"), delivered to UNION BANK OF
CALIFORNIA, N.A., in its capacity as Trustee (the "Trustee") under that certain
Indenture (as amended, revised, modified, supplemented or amended and restated
from time to time, the "Indenture"), dated as of June 22, 2004, by and among
KELLWOOD COMPANY, a Delaware corporation (the "Company"), the Lenders party
thereto and the Trustee. All capitalized terms not otherwise defined herein
shall have the meanings given to such terms in the Indenture.
WHEREAS, various material domestic subsidiaries of the Company have
executed and delivered to the Trustee a Guaranty Agreement dated as of March 15,
2005 (herein as amended, supplemented or modified from time to time called the
"Guaranty Agreement");
WHEREAS, the Joining Guarantor is a material domestic Subsidiary and
desires to become a "Guarantor" under the Guaranty Agreement and be joined as a
party to the Guaranty Agreement; and
WHEREAS, the Joining Guarantor will materially benefit directly and
indirectly by becoming a Guarantor under the Guaranty Agreement; and
NOW, THEREFORE, the Joining Guarantor hereby agrees as follows with the
Trustee, for the benefit of the Debentureholders (as defined in the Indenture):
1. JOINDER. The Joining Guarantor hereby irrevocably, absolutely and
unconditionally becomes a party to the Guaranty Agreement as a Guarantor and
bound by all the terms, conditions, obligations, liabilities and undertakings of
each Guarantor or to which each Guarantor is subject thereunder, including
without limitation the joint and several, unconditional, absolute, continuing
and irrevocable guarantee to the Trustee for the benefit of the Debentureholders
of the payment and performance in full of the Guaranteed Liabilities (as defined
in the Guaranty Agreement) whether now existing or hereafter arising, all with
the same force and effect as if the Joining Guarantor were a signatory to the
Guaranty Agreement.
2. AFFIRMATIONS. The Joining Guarantor hereby acknowledges and
reaffirms as of the date hereof with respect to itself, its properties and its
affairs each of the waivers, representations, warranties, acknowledgements and
certifications applicable to any Guarantor contained in the Guaranty Agreement.
3. SEVERABILITY. The provisions of this Guaranty Joinder Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provision hereof,
but this Guaranty Joinder Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
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4. COUNTERPARTS. This Guaranty Joinder Agreement may be executed in any
number of counterparts each of which when so executed and delivered shall be
deemed an original, and it shall not be necessary in making proof of this
Guaranty Joinder Agreement to produce or account for more than one such
counterpart executed by the Joining Guarantor. Without limiting the foregoing
provisions of this Section 4, the provisions of Section 16.13 of the Indenture
shall be applicable to this Guaranty Joinder Agreement.
5. DELIVERY. Joining Guarantor hereby irrevocably waives notice of
acceptance of this Guaranty Joinder Agreement and acknowledges that the
Guaranteed Liabilities are and shall be deemed to be incurred, and credit
extensions under the Indenture made and maintained, in reliance on this Guaranty
Joinder Agreement and the Guarantor's joinder as a party to the Guaranty
Agreement as herein provided.
6. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. The provisions of
Sections 26 and 27 of the Guaranty are hereby incorporated by reference as if
fully set forth herein.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the Joining Guarantor has duly executed and
delivered this Guaranty Joinder Agreement as of the day and year first written
above.
JOINING GUARANTOR:
____________________________________
By:_________________________________
Name: __________________________
Title: _________________
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