Exhibit 10.8
GUARANTEE
New York, New York Dated: July 10,
2009
In
order to induce ROSENTHAL & ROSENTHAL, INC. (herein called
“Rosenthal”) to make loans, advances or other
commitments or grant other financial accommodations to or for the
account of (or in reliance on the credit of) Steven Madden, Ltd.,
Daniel M. Friedman Associates, Inc., Diva Acquisition Corp., Steven
Madden Retail, Inc., Stevies, Inc. and SML Acquisition Corp. (each,
an “Obligor”) and for other good and valuable
considerations received, the undersigned irrevocably, absolutely
and unconditionally guarantees to Rosenthal payment when due,
whether by acceleration or otherwise, of any and all Obligations of
each Obligor to Rosenthal. The term “Obligations” shall
mean all Obligations as defined in each of the Collection Agency
Agreements, dated on or about the date hereof, between Rosenthal
and each of the Obligors, as the same may have been or may in the
future be supplemented and/or amended (the “Collection Agency
Agreements”). In addition, the undersigned agrees to
indemnify Rosenthal against any loss, damage or liability because
of any wrongful acts or fraud of each Obligor.
The
undersigned waives notice of acceptance of this guarantee and
notice of any liability to which it may apply, and waives
presentment, demand for payment, protest, notice of dishonor or
nonpayment of any Obligations, or suit or taking other action by
Rosenthal against, and any other notice to, any party liable
thereon (including the undersigned) and waives any defense, offset
or counterclaim to any liability hereunder (other than indefeasible
payment in full of the Obligations). Rosenthal may at any time and
from time to time (whether or not after revocation or termination
of this guarantee) without the consent of, or notice to, the
undersigned, without incurring responsibility to the undersigned,
without impairing or releasing the obligations of the undersigned
hereunder, upon or without any terms or conditions and in whole or
in part: (1) change the manner, place or terms of payment, and/or
change or extend the time of payment of, renew or alter, any
Obligation, any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the guarantee herein
made shall apply to the Obligations as so changed, extended,
renewed or altered; (2) sell, exchange, release, surrender, realize
upon or otherwise deal with in any manner and in any order any
property by whomsoever at any time pledged or mortgaged to secure,
or howsoever securing, the liabilities hereby guaranteed or any
liabilities (including any of those hereunder or under any other
guarantee of the Obligations) incurred directly or indirectly in
respect thereof or hereof, and/or offset thereagainst; (3) exercise
or refrain from exercising any rights against each Obligor or
others (including the undersigned or under any other guarantee of
the Obligations) or otherwise act or refrain from acting; (4)
settle or compromise any Obligation, any security therefor or any
liability (including any of those hereunder or under any other
guarantor of the Obligations) incurred directly or indirectly in
respect thereof or hereof, and may subordinate the payment of all
or any part thereof to the payment of any liability (whether due or
not) of each Obligor to creditors of each Obligor other than
Rosenthal and the undersigned: and (5) apply any sums by whomsoever
paid or howsoever realized to any Obligation to Rosenthal
regardless of what liability or liabilities of any Obligor remain
unpaid.
No
invalidity, irregularity or unenforceability of all or any part of
the liabilities hereby guaranteed or of any security therefor or of
any other guarantee of the Obligations shall affect, impair or be a
defense to this guarantee. The liability of the undersigned
hereunder is primary, absolute and unconditional and shall not be
subject to any offset, defense or counterclaim of each Obligor
(other than indefeasible payment in full of the Obligations). This
guarantee is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. The books and
records of Rosenthal shall be admissible as prima facie evidence of
the Obligations. As to each of the undersigned, this guarantee
shall continue until written notice of revocation signed by such
undersigned, or until written notice of the death of such
undersigned shall in each case have been actually received by
Rosenthal, notwithstanding a revocation by, or the death of, or
complete or partial release for any cause of any one or more of the
remainder of the undersigned or of each Obligor, or of any one
liable in any manner for the liabilities hereby guaranteed, or for
the liabilities (including those herein) incurred directly or
indirectly in respect thereof or hereof, and notwithstanding the
dissolution, termination or increase, decrease or change in
personnel of any one or more of the undersigned which may be
partnerships or corporations.
1
No
revocation or termination hereof shall affect in any manner rights
arising under this guarantee with respect to (a) Obligations which
shall have been created, contract
