U.S. Loan Party Canadian Facility
Guaranty ,
dated as of August 26, 2008 (this “
Guaranty ”), by The Warnaco Group, Inc.
, a Delaware
corporation (“ Group ”), and each of the
other entities listed on the signature pages hereof or that becomes
a party hereto pursuant to Section 25 (Additional
Guarantors) hereof (each a “ Subsidiary
Guarantor ” and, together with Group, collectively,
the “ Guarantors ” and individually a
“ Guarantor ”), in favor of the
Administrative Agent, the Collateral Agent, each Lender, each
Issuer and each other holder of an Obligation (as each such term is
defined in the Credit Agreement referred to below) (each, a “
Guarantied Party ” and, collectively, the
“ Guarantied Parties ”).
Whereas , Warnaco of Canada
Company , a Nova
Scotia unlimited liability company (the “
Borrower ”), Group, the Lenders and Issuers
party thereto from time to time, Bank of America, N.A. (“
BofA ”), as administrative agent (in such
capacity, the “ Administrative Agent ”)
and as Collateral Agent for the Lenders and the Issuers (together
with the Administrative Agent, the “ Facility
Agents ”), Banc of America Securities LLC and
Deutsche Bank Securities Inc., as joint lead arrangers and joint
book managers, and Deutsche Bank Securities Inc., as sole
syndication agent, have entered into the Credit Agreement, dated as
of August 26, 2008 (as amended, supplemented or otherwise
modified from time to time, the “ Credit
Agreement ”; capitalized terms used herein but not
defined herein are used with the meanings given to them in the
Credit Agreement);
Whereas , it is condition
precedent to the effectiveness of the Credit Agreement that the
Guarantors shall have executed and delivered this Guaranty to the
Collateral Agent for the benefit of the Guarantied
Parties;
Whereas , Group is the ultimate
parent of the Borrower and each Subsidiary Guarantor is a direct or
indirect Subsidiary of Group and an Affiliate of the Borrower;
and
Whereas , each Guarantor will
receive substantial direct and indirect benefits from the making of
the Loans, the issuance of the Letters of Credit and the granting
of the other financial accommodations to the Borrower under the
Credit Agreement;
Now, Therefore , in consideration
of the premises set forth above, the terms and conditions contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
(a) To induce
the Lenders to make the Loans and the Issuers to issue Letters of
Credit, each Guarantor hereby absolutely, unconditionally and
irrevocably guarantees, jointly with the other Guarantors and
severally, as primary obligor and not merely as surety, the full
and punctual payment when due and in the currency due, whether at
stated maturity or earlier, by reason of acceleration, mandatory
prepayment or otherwise in accordance herewith or any other Loan
Document, of all the Obligations, whether or not from time to time
reduced or extinguished or hereafter increased or incurred, whether
or not recovery may be or hereafter may become barred by any
statute of limitations, whether or not enforceable as against the
Borrower, whether now or hereafter existing, and whether due or to
become due, including principal, interest (including interest at
the contract rate applicable upon default accrued or accruing after
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Canadian Facility Guaranty
commencement of
any proceeding under the Bankruptcy Code, or any applicable
provisions of comparable state or foreign law, whether or not such
interest is an allowed claim in such proceeding), fees and costs of
collection. This Guaranty constitutes a guaranty of payment and not
of collection. Notwithstanding the foregoing, Calvin Klein
Jeanswear Company shall not be required to make any payment
hereunder until the 30th day after written demand therefor has been
given by the Collateral Agent in accordance with the terms of the
Credit Agreement.
(b) Each
Guarantor further agrees that, if (i) any payment made by
Borrower or any other Person and applied to the Obligations is at
any time annulled, avoided, set aside, rescinded, invalidated,
declared to be fraudulent or preferential or otherwise required to
be refunded or repaid, or (ii) any proceeds of Collateral are
required to be returned by any Guarantied Party to the Borrower,
its estate, trustee, receiver or any other party, including any
Guarantor, under any bankruptcy law, equitable cause or any other
Requirement of Law, then, to the extent of such payment or
repayment, any such Guarantor’s liability hereunder (and any
Lien or other Collateral securing such liability) shall be and
remain in full force and effect, as fully as if such payment had
never been made. If, prior to any of the foregoing, this Guaranty
shall have been cancelled or surrendered (and if any Lien or other
Collateral securing such Guarantor’s liability hereunder
shall have been released or terminated by virtue of such
cancellation or surrender), this Guaranty (and such Lien or other
Collateral) shall be reinstated in full force and effect, and such
prior cancellation or surrender shall not diminish, release,
discharge, impair or otherwise affect the obligations of any such
Guarantor in respect of the amount of such payment (or any Lien or
other Collateral securing such obligation).
Section 2 Limitation of Guaranty
Any term or
provision of this Guaranty or any other Loan Document to the
contrary notwithstanding, the maximum aggregate amount of the
Obligations for which any Subsidiary Guarantor shall be liable
shall not exceed the maximum amount for which such Subsidiary
Guarantor can be liable without rendering this Guaranty or any
other Loan Document, as it relates to such Subsidiary Guarantor,
subject to avoidance under applicable law relating to fraudulent
conveyance or fraudulent transfer (including Section 548 of
the Bankruptcy Code or any applicable provisions of comparable
state law) (collectively, “ Fraudulent Transfer
Laws ”), in each case after giving effect (a) to
all other liabilities of such Subsidiary Guarantor, contingent or
otherwise, that are relevant under such Fraudulent Transfer Laws
(specifically excluding, however, any liabilities of such
Subsidiary Guarantor in respect of intercompany Indebtedness to the
Borrower to the extent that such Indebtedness would be discharged
in an amount equal to the amount paid by such Subsidiary Guarantor
hereunder) and (b) to the value as assets of such Subsidiary
Guarantor (as determined under the applicable provisions of such
Fraudulent Transfer Laws) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights held by
such Subsidiary Guarantor pursuant to (i) applicable
Requirements of Law, (ii) Section 3 (
Contribution ) of this Guaranty or (iii) any other
Contractual Obligations providing for an equitable allocation among
such Subsidiary Guarantor and other Subsidiaries or Affiliates of
the Borrower of obligations arising under this Guaranty or other
guaranties of the Obligations by such parties.
To the extent that
any Subsidiary Guarantor shall be required hereunder to pay a
portion of the Obligations exceeding the greater of (a) the
amount of the economic benefit
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actually
received by such Subsidiary Guarantor from the Loans and the other
financial accommodations provided to the Borrower under the Loan
Documents and (b) the amount such Subsidiary Guarantor would
otherwise have paid if such Subsidiary Guarantor had paid the
aggregate amount of the Obligations (excluding the amount thereof
repaid by the Borrower and Group) in the same proportion as such
Subsidiary Guarantor’s net worth at the date enforcement is
sought hereunder bears to the aggregate net worth of all the
Subsidiary Guarantors at the date enforcement is sought hereunder,
then such Guarantor shall be reimbursed by such other Subsidiary
Guarantors for the amount of such excess, pro rata, based on the
respective net worths of such other Subsidiary Guarantors at the
date enforcement hereunder is sought.
Section 4 Authorization; Other
Agreements
The Guarantied
Parties are hereby authorized, without notice to, or demand upon,
any Guarantor, which notice and demand requirements each are
expressly waived hereby, and without discharging or otherwise
affecting the obligations of such Guarantor hereunder (which
obligations shall remain absolute and unconditional notwithstanding
any such action or omission to act), from time to time, to do each
of the following:
(a) supplement,
renew, extend, accelerate or otherwise change the time for payment
of, or other terms relating to, the Obligations, or any part of
them, or otherwise modify, amend or change the terms of any
promissory note or other agreement, document or instrument
(including any of the other Loan Documents) now or hereafter
executed by the Borrower and delivered to the Guarantied Parties or
any of them, including any increase or decrease of principal or the
rate of interest thereon;
(b) waive or
otherwise consent to noncompliance with any provision of any
instrument evidencing the Obligations, or any part thereof, or any
other instrument or agreement in respect of any of the Obligations
(including any of the other Loan Documents) now or hereafter
executed by the Borrower and delivered to the Guarantied Parties or
any of them;
(c) accept
partial payments on any of the Obligations;
(d) receive,
take and hold additional security or collateral for the payment of
the Obligations or any part of them and exchange, enforce, waive,
substitute, liquidate, terminate, abandon, fail to perfect,
subordinate, transfer, otherwise alter and release any such
additional security or collateral;
(e) settle,
release, compromise, collect or otherwise liquidate any of the
Obligations or accept, substitute, release, exchange or otherwise
alter, affect or impair any security or collateral for the
Obligations or any part of them or any other guaranty therefor, in
any manner;
(f) add,
release or substitute any one or more other guarantors, makers or
endorsers of the Obligations or any part of them and otherwise deal
with the Borrower or any other guarantor, maker or
endorser;
(g) apply to
the Obligations any payment or recovery (x) from the Borrower,
from any other guarantor, maker or endorser of the Obligations or
any part of them or (y) from
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any Guarantor
in such order as provided herein, in each case whether such
Obligations are secured or unsecured or guaranteed or not
guaranteed by others;
(h) apply to
the Obligations any payment or recovery from any Guarantor of any
of the Obligations or any sum realized from security furnished by
such Guarantor upon its indebtedness or obligations to the
Guarantied Parties or any of them, in each case whether or not such
indebtedness or obligations relate to the Obligations;
and
(i) refund at
any time any payment received by any Guarantied Party in respect of
any Obligation, and payment to such Guarantied Party of the amount
so refunded shall be fully guaranteed hereby even though prior
thereto this Guaranty shall have been cancelled or surrendered (or
any release or termination of any Collateral by virtue thereof),
and such prior cancellation or surrender shall not diminish,
release, discharge, impair or otherwise affect the obligations of
any Guarantor hereunder in respect of the amount so refunded (and
any Collateral so released or terminated shall be reinstated with
respect to such obligations); even if any right of reimbursement or
subrogation or other right or remedy of any Guarantor is
extinguished, affected or impaired by any of the foregoing
(including any election of remedies by reason of any judicial,
non-judicial or other proceeding in respect of any of the
Obligations that impairs any subrogation, reimbursement or other
right of such Guarantor).
Section 5 Guaranty Absolute and
Unconditional
To the fullest
extent permitted by applicable law, each Guarantor hereby waives
any defense of a surety or guarantor or any other obligor on any
obligations arising in connection with or in respect of any of the
following and hereby agrees that its obligations under this
Guaranty are absolute and unconditional and shall not be discharged
or otherwise affected as a result of any of the
following:
(a) the
invalidity or unenforceability of any of the Borrower’s
obligations under the Credit Agreement or any other Loan Document
or any other agreement or instrument relating thereto, or any
security for, or other guaranty of the Obligations or any part of
them, or the lack of perfection or continuing perfection or failure
of priority of any security for the Obligations or any part of
them;
(b) the
absence of any attempt to collect the Obligations or any part of
them from the Borrower or other action to enforce the
same;
(c) failure
by any Guarantied Party to take any steps to perfect and maintain
any Lien on, or to preserve any rights to, any
Collateral;
(d) any
Guarantied Party’s election, in any proceeding instituted
under chapter 11 of the Bankruptcy Code, of the application of
Section 1111(b)(2) of the Bankruptcy Code or any applicable
provisions of comparable state or foreign law;
(e) any
borrowing or grant of a Lien by the Borrower, as
debtor-in-possession, or extension of credit, under
Section 364 of the Bankruptcy Code or any applicable
provisions of comparable state or foreign law;
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(f) the
disallowance, under Section 502 of the Bankruptcy Code or any
applicable provisions of comparable state or foreign law, of all or
any portion of any Guarantied Party’s claim (or claims) for
repayment of the Obligations;
(g) any use
of cash collateral under Section 363 of the Bankruptcy Code or
any applicable provisions of comparable state or foreign
law;
(h) any
agreement or stipulation as to the provision of adequate protection
in any bankruptcy proceeding;
(i) the
avoidance of any Lien in favor of the Guarantied Parties or any of
them for any reason;
(j) any
bankruptcy, insolvency, reorganization, arrangement, readjustment
of debt, liquidation or dissolution proceeding commenced by or
against the Borrower, any Guarantor or any of the Borrower’s
other Subsidiaries, including any discharge of, or bar or stay
against collecting, any Obligation (or any part of them or interest
thereon) in or as a result of any such proceeding;
(k) failure
by any Guarantied Party to file or enforce a claim against the
Borrower or i
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