1 EX-10.3
EXHIBIT 10.3
SUBORDINATED GUARANTY
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This Subordinated Guaranty, dated as of November 8, 1996 (the Guaranty ) by
All American Sports Corporation, Equilink Licensing Corporation, Ridmark
Corporation, RHC Licensing Corporation, and Proacq Corp., Delaware
corporations; Xxxxxxx, Inc., an Illinois corporation and XxxxXx Corporation,
a Florida corporation (collectively, the Present Guarantors ) and all
wholly-owned subsidiaries of the Company and its subsidiaries hereafter
formed who execute this Subordinated Guaranty or counterpart thereto
(collectively, the Future Guarantors ) (the Present Guarantors and the
Future Guarantors are referred to herein collectively as, the Guarantors ),
in favor of Silver Oak Capital, L.L.C. (the Purchaser ).
Whereas, the Present Guarantors are the wholly-owned subsidiaries of Xxxxxxx
Sports Inc., a Delaware corporation (the Borrower ).
Whereas, the Borrower has entered into a Subordinated Note Purchase Agreement
dated October 30, 1996 (the Purchase Agreement ) with the Purchaser
providing for the Borrower to issue its 4.10% Convertible Subordinated Note
due November 1, 2004 (the Note ) in the aggregate principal amount of $7.5
million to the Purchaser.
Whereas, the proceeds from the sale of the Note will directly, or indirectly,
inure to the benefit of the Guarantors in their capacities as subsidiaries of
the Borrower.
Whereas, in as an inducement to the Purchaser to purchase the Note, the
Present Guarantors have agreed to issue this Subordinated Guaranty.
Whereas, Section 9.7 of the Purchase Agreement requires the Future Guarantors
to be bound by this Subordinated Guaranty.
1. Certain Definitions.
1.01 Capitalized terms used but not defined herein shall have the
meanings given such terms in the Purchase Agreement.
1.02 The term Holder or Holders shall refer to each of (i) the
Purchaser, (ii) each permitted successor or assignee of Purchaser s rights
and (iii) each permitted transferee or assignee of all or a portion of the
Note to the extent the Purchaser shall specify such person pursuant to this
clause (iii) as a Holder.
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2 EX-10.3
2. The Guarantee.
Each Guarantor hereby jointly and severally guarantees to each Holder
and their respective successors and permitted assigns the prompt payment in
full when due (whether at stated maturity, by acceleration, required
repurchase or otherwise) of the principal of and interest on the Note held by
each Holder and all other amounts from time to time owing to the Holders by
the Borrower under the Purchase Agreement and under the Note, in each case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the Guaranteed Obligations ). Each Guarantor hereby
further jointly and severally agrees that if the Borrower shall fail to pay
in full when due (whether at stated maturity, by acceleration, required
repurchase or otherwise) any of the Guaranteed Obligations, such Guarantor
will promptly pay the same, without any demand or notice whatsoever, and that
in the case of any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance
with the terms of such extension or renewal.
3. Obligations Unconditional.
The obligations of each Guarantor under Section 2 hereof are absolute
and unconditional, irrespective of (i) the value, genuineness, validity,
regularity or enforceability of the obligations of the Borrower under this
Guaranty, the Purchase Agreement, the Note or any other agreement or
instrument referred to herein or therein, (ii) any substitution, release or
exchange of any other guarantee of or security for any of the Guaranteed
Obligations (iii) the absence of any action to enforce the Purchase Agreement
or the Note, (iv) any waiver or consent by the Holder with respect to any
provisions of the Purchase Agreement or the Note, (v) any modification or
amendment of, or supplement of, the Guaranty, Purchase Agreement, Note or any
other agreements or instruments referred to herein or therein or (vi) the
recovery of any judgment against the Borrower or any action to enforce such
judgment, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 3 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more of the following shall not impair the
liability of any Guarantor hereunder, which shall remain absolute and
unconditional as described above:
(A) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any
of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(B) any of the acts mentioned in any of the provisions of this
Guaranty, the Purchase Agreement or the Note or any other agreement
or instrument referred to herein or therein shall be done or
omitted; or
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3 EX-10.3
(C) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right
under this Guaranty, the Purchase Agreement or the Note or any
other agreement or instrument referred to herein or therein shall
be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged
in whole or in part or otherwise dealt with.
Each Guarantor hereby expressly waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Borrower, protest, notices and all demands whatsoever, any
requirement that any Holder exhaust any right, power or remedy or proceed
against the Borrower under the Purchase Agreement or the Note or any other
agreement or instrument referred to herein or therein, or against any other
Person under any other guarantee of, or security for, any of the Guaranteed
Obligations and covenants that its Guaranteed Obligations will not be
discharged except by complete performance by the Borrower or another
Guarantor of such Guaranteed Obligations.
4. Reinstatement.
The obligations of each Guarantor under this Guaranty shall be
automatically reinstated if and to the extent that for any reason any payment
by or on behalf of the Borrower in respect of the Guaranteed Obligations is
rescinded or must be otherwise restored by any holder of any of the
Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise.
5. Subrogation.
Each Guarantor hereby waives all rights of subrogation, contribution,
reimbursement and indemnity and all other rights that such Guarantor would
have against the Borrower at any time as a result of any payment in respect
of its Guaranteed Obligations (whether contractual, under the Bankruptcy
Code, or otherwise).
6. Remedies.
Each Guarantor agrees that, as between such Guarantor and the Holders,
the obligations of the Borrower under the Purchase Agreement and the Note may
be declared to be forthwith due and payable as provided in the Purchase
Agreement (and shall be deemed to have become automatically due and payable
in the circumstances provided in the Purchase Agreement) for purposes of the
Guaranty notwithstanding any stay, injunction or other prohibition preventing
such declaration (or such obligations from becoming automatically due and
payable) as against the Borrower and that, in the event of such declaration
(or such obligations being deemed to have become automatically due and
payable), such obligations (whether or not due and payable by the Company)
shall forthwith become due and payable by such Guarantor for purposes of said
Section 2 of the Guaranty.
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7. Instrument for the Payment of Money.
Each Guarantor hereby acknowledges that the guarantee in this Guaranty
constitutes an instrument for the payment of money and consents and agrees
that any Holder, at its sole option, in the event of a dispute by such
Guarantor in the payment of any moneys due hereunder, shall have the right to
bring motion-action under New York CPLR Section 3213.
8. Continuing Guarantee.
The guarantee in this Guaranty is a continuing guarantee, and shall
apply to all Guaranteed Obligations whenever arising.
9. General Limitation on Guarantee Obligations.
In any action or proceeding involving any state corporate law, or any
state or Federal bankruptcy, insolvency, reorganization, fraudulent
conveyance, fraudulent transfer or other law affecting the rights of
creditors generally, if the obligations of any Guarantor under Section 2
hereof would otherwise be held or determined to be void, invalid or
unenforceable, or subordinated to the claims of any other creditors, on
account of the amount of its liability under said Section 2, then,
notwithstanding any other provision hereof to the contrary, the amount of
such liability shall, without any further action by such Guarantor, any
Holder or any other Person, be automatically limited and reduced to the
highest amount that is valid and enforceable and not subordinated to the
claims of other creditors as determined in such action or proceeding.
10. Subordination.
The obligations of each Guarantor under this Guaranty shall be junior
and subordinated in right of payment to any Senior Indebtedness of such
Guarantor in the same manner and to the same extent as the Note is
subordinated to Senior Indebtedness of the Borrower pursuant to Section 13 of
the Purchase Agreement.
11. Anti-Layering
No Guarantor will, directly or indirectly, incur or suffer to exist any
Indebtedness that is subordinate in right of payment to any Indebtedness of
such Guarantor, unless such Indebtedness is pari passu with or is subordinate
in right of payment to such Guarantor s payment obligations under the
Guaranty.
12. Requirements.
Subject to the terms of the Purchase Agreement, this Guaranty may be
amended, and the observance of any term hereof may be waived (either
retroactively or prospectively), with (and only
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with) the written consent of the Majority Lenders.
13. Successors and Assigns.
The guaranty provided in Section 2 hereof binds and inures to the
benefit of the Holders and each of their respective successors and permitted
assigns.
14. Governing Law.
This Guaranty shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the law of the State of New
York excluding choice-of-law principles of the law of such State that would
require the application of the laws of a jurisdiction other than such State.
15. Assignments and Restrictions on Transfers.
No Guarantor may assign any of its rights or obligations hereunder or
under the Note without the prior consent of the Majority Lenders. The
Purchaser and each Holder shall not transfer any of its rights under the
Guaranty except to the same extent as permitted by Section 20.7 of the
Purchase Agreement.
All American Sports Corporation
Equilink Licensing Corporation
Ridmark Corporation
RHC Licensing Corporation
Proacq Corp.
XxxxXx Corporation
By: XXXXX XXXXXXXXXX
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Their: Senior Vice President
Xxxxxxx, Inc.
By: XXXXX XXXXXXXXXX
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Its: Vice President
[FUTURE GUARANTOR]
By: _______________________
Its: ______________________
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