Exhibit 10.2
GUARANTY
GUARANTY
(this “ Guaranty ”), dated as of March 20, 2009,
by the undersigned (each such Person, individually, a “
Guarantor ” and, collectively, the “
Guarantors ”) executed in favor of (a) BANK OF
AMERICA, N.A., as administrative agent (in such capacity, the
“ Administrative Agent ”) for its own benefit
and the benefit of the other Lenders (as defined below), (b) BANK
OF AMERICA, N.A., as collateral agent (in such capacity, the
“ Collateral Agent ”, and together with the
Administrative Agent, individually, an “ Agent
”, and collectively, the “ Agents ”)) for
its own benefit and the benefit of the other Credit Parties (as
defined in the Credit Agreement referred to below), and (c) the
other Credit Parties to whom Obligations or Other Liabilities are
owing. All references herein to the “Credit Parties”
shall refer solely to the Agents and the other Credit Parties to
whom Obligations or Other Liabilities are owing.
WITNESSETH
WHEREAS,
reference is made to that certain Credit Agreement, dated as of
March 20, 2009 (as amended, restated, amended and restated,
supplemented or otherwise modified and in effect from time to time,
the “ Credit Agreement ”), by, among others, (i)
Foot Locker, Inc., a New York corporation (the “
Borrower ”), (ii) the Guarantors party thereto, (iii)
the Lenders party thereto (individually, a “ Lender
” and, collectively, the “ Lenders ”),
(iv) the Agents, and (v) Bank of America, N.A., as Swing Line
Lender and L/C Issuer, pursuant to which the Lenders have agreed to
make Loans to the Borrower, and the L/C Issuer has agreed to issue
Letters of Credit for the account of the Borrower, upon the terms
and subject to the conditions specified in the Credit Agreement.
Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
WHEREAS,
each Guarantor acknowledges that it is an integral part of a
consolidated enterprise and that it will receive direct and
indirect benefits from the availability of the credit facility
provided for in the Credit Agreement, from the making of the Loans
by the Lenders, and the issuance of the Letters of Credit by the
L/C Issuer.
WHEREAS,
the obligations of the Lenders to make Loans and of the L/C Issuer
to issue Letters of Credit are each conditioned upon, among other
things, the execution and delivery by the Guarantors of a guaranty
in the form hereof. As consideration therefor, and in order to
induce the Lenders to make Loans and the L/C Issuer to issue
Letters of Credit, each Guarantor is willing to execute this
Guaranty.
Accordingly,
the parties hereto agree as follows:
SECTION
1. Guaranty . Each Guarantor irrevocably and unconditionally
guaranties, jointly with the other Guarantors and severally, as a
primary obligor and not merely as a surety, the due and punctual
payment when due (whether at the stated maturity, by required
prepayment, by acceleration or otherwise) by the Borrower of all
Obligations and Other Liabilities (collectively, the “
Guaranteed Obligations ”), including all such
Guaranteed Obligations which shall become due but for the operation
of the Bankruptcy Code. Each Guarantor further agrees that the
Guaranteed Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from it, and that it will
remain bound upon this Guaranty notwithstanding any extension or
renewal of any Guaranteed Obligation.
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SECTION
2. Guaranteed Obligations Not Affected . To the fullest
extent permitted by applicable Law, each Guarantor waives
presentment to, demand of payment from, and protest to, any Loan
Party of any of the Guaranteed Obligations, and also waives notice
of acceptance of this Guaranty, notice of protest for nonpayment
and all other notices of any kind. To the fullest extent permitted
by applicable Law, the obligations of each Guarantor hereunder
shall not be affected by (a) the failure of any Agent or any
other Credit Party to assert any claim or demand or to enforce or
exercise any right or remedy against any other Loan Party under the
provisions of the Credit Agreement, any other Loan Document or
otherwise or against any other party with respect to any of the
Guaranteed Obligations, (b) any rescission, waiver, amendment
or modification of, or any release from, any of the terms or
provisions of this Guaranty, any other Loan Document or any other
agreement, with respect to any Loan Party or with respect to the
Guaranteed Obligations, (c) the failure to perfect any
security interest in, or the release of, any of the Collateral held
by or on behalf of the Collateral Agent or any other Credit Party,
or (d) the lack of legal existence of any Loan Party or legal
obligation to discharge any of the Guaranteed Obligations by any
Loan Party for any reason whatsoever, including, without
limitation, in any insolvency, bankruptcy or reorganization of any
Loan Party.
SECTION
3. Security . Each Guarantor hereby acknowledges and agrees
that the Collateral Agent, on behalf of itself and each of the
other Credit Parties may (a) take and hold security for the
payment of this Guaranty and the Guaranteed Obligations and
exchange, enforce, waive and release any such security,
(b) apply such security and direct the order or manner of sale
thereof as provided in the Credit Agreement and the other Security
Documents, and (c) release or substitute any one or more
endorsees, the Borrower or other Loan Parties, in each case without
affecting or impairing in any way the liability of any Guarantor
hereunder.
SECTION
4. Guaranty of Payment . Each Guarantor further agrees that
this Guaranty constitutes a guaranty of payment and performance
when due of all Guaranteed Obligations and not of collection and,
to the fullest extent permitted by applicable Law, waives any right
to require that any resort be had by the Collateral Agent or any
other Credit Party to any of the Collateral or other security held
for payment of the Guaranteed Obligations or to any balance of any
deposit account or credit on the books of any Agent or any other
Credit Party in favor of any Loan Party or any other Person or to
any other Guarantor of all or part of the Guaranteed Obligations.
Any payment required to be made by any Guarantor hereunder may be
required by any Agent or any other Credit Party on any number of
occasions and shall be payable to the Administrative Agent, for the
benefit of the Agents and the other Credit Parties, in the manner
provided in the Credit Agreement.
SECTION
5. No Discharge or Diminishment of Guaranty . The
obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason
(other than the indefeasible payment in full in cash of the
Guaranteed Obligations and as otherwise provided in SECTION 10 of
this Guaranty), including any claim of waiver, release, surrender,
alteration or compromise of any of the Guaranteed Obligations, and
shall not be subject to any defense or set-off, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Guaranteed Obligations or
otherwise. Without limiting the generality of the foregoing, the
Guaranteed Obligations of each Guarantor hereunder shall not be
discharged or impaired or otherwise affected by the failure of any
Agent or any other Credit Party to assert any claim or demand or to
enforce any remedy under this
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Guaranty, the Credit Agreement,
any other Loan Document or any other agreement, by any waiver or
modification of any provision of any thereof, by any default,
failure or delay, willful or otherwise, in the performance of any
of the Guaranteed Obligations, or by any other act or omission that
may or might in any manner or to any extent vary the risk of any
Guarantor or that would otherwise operate as a discharge of any
Guarantor as a matter of law or equity (other than the indefeasible
payment in full in cash of the Guaranteed Obligations and as
otherwise provided in SECTION 10 of this Guaranty).
SECTION
6. Defenses of Loan Parties Waived . To the fullest extent
permitted by applicable Law, each Guarantor waives any defense
based on or arising out of any defense of any Loan Party or the
unenforceability of the Guaranteed Obligations or any part thereof
from any cause, or the cessation from any cause of the liability of
any Loan Party, other than the indefeasible payment in full in cash
of the Guaranteed Obligations. Each Guarantor hereby acknowledges
that the Agents and the other Credit Parties may, in accordance
with the Loan Documents, foreclose on any security held by one or
more of them by one or more judicial or nonjudicial sales, accept
an assignment of any such security in lieu of foreclosure,
compromise or adjust any part of the Guaranteed Obligations, make
any other accommodation with any Loan Party, or exercise any other
right or remedy available to them against any Loan Party, without
affecting or impairing in any way the liability of each such
Guarantor hereunder except to the extent that the Guaranteed
Obligations have been indefeasibly paid in full in cash and the
Aggregate Commitments have been terminated. Pursuant to, and to the
extent permitted by, applicable Law, each Guarantor waives any
defense arising out of any such election and waives any benefit of
and right to participate in any such foreclosure action, even
though such election operates, pursuant to applicable Law, to
impair or to extinguish any right of reimbursement, indemnity,
contribution or subrogation or other right or remedy of such
Guarantor against any Loan Party, as the case may be, or
an
