EXHIBIT 10.15
BORROWER: Pacific Sunwear of California, Inc.
GUARANTOR: Pacific Sunwear Stores Corp.
Xxxxxxxxxx.xxx Corp.
LIMITED GUARANTY
To: Bank of America, N.A.
1. The Guaranty. For valuable consideration, the undersigned
("Guarantor") hereby unconditionally guarantees and promises to pay promptly to
Bank of America, N.A. ("Bank"), or order, in lawful money of the United States,
any and all Indebtedness of Pacific Sunwear of California, Inc. ("Borrower") to
Bank when due, whether at stated maturity, upon acceleration or otherwise, and
at all times thereafter, subject to such limitations on Guarantor's liability as
are set forth below. This Guaranty is cumulative and does not supersede any
other outstanding guaranties, and the liability of Guarantor under this Guaranty
is exclusive of Guarantor's liability under any other guaranties signed by
Guarantor. If more than one individual or entity sign this Guaranty, their
obligations under this Guaranty shall be joint and several.
The liability of Guarantor under this Guaranty shall be limited to the
Indebtedness under the Loan Documents and shall not exceed at any one time the
sum of (a) the principal amount of the Indebtedness under such Loan Documents
plus (b) all interest, fees, indemnities (including, without limitation,
hazardous waste indemnities), and other costs and expenses relating to or
arising out of the Indebtedness under such Loan Documents and all swap, option,
or forward obligations now or hereafter owing from Borrower to Bank.
Notwithstanding the limitations on Guarantor's liability set forth above,
Guarantor's liability hereunder shall not exceed at any one time the Maximum
Guaranteed Amount. "Maximum Guaranteed Amount" shall mean the largest amount
during the period commencing with Guarantor's execution of this Guaranty and
thereafter that would not render Guarantor's obligations hereunder subject to
avoidance under Section 548 of the Bankruptcy Code (Title 11, United States
Code) or any comparable provisions of any applicable state law.
2. Definitions.
(a) "Borrower" shall mean the individual or the
entity named in Paragraph 1 of this Guaranty and, if more than one,
then any one or more of them.
(b) "Guarantor" shall mean the individual or the
entity signing this Guaranty and, if more than one, then any one or
more of them.
(c) "Indebtedness" shall mean any and all debts,
liabilities, and obligations of Borrower to Bank arising under or
related to the Loan Documents, now or hereafter existing, whether
voluntary or involuntary and however arising, whether direct or
indirect or acquired by Bank by assignment, succession, or otherwise,
whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, held or to be held by Bank
for its own account or as agent for another or others, whether Borrower
may be liable individually or jointly with others, whether recovery
upon such
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debts, liabilities, and obligations may be or hereafter become barred
by any statute of limitations, and whether such debts, liabilities, and
obligations may be or hereafter become otherwise unenforceable.
Indebtedness includes, without limitation, any and all obligations of
Borrower to Bank for reasonable attorneys' fees and all other costs and
expenses incurred by Bank in the collection or enforcement of any
debts, liabilities, and obligations of Borrower to Bank. Indebtedness
also includes, without limitation, all swap, option, or forward
obligations now or hereafter owing from Borrower to Bank.
(d) "Loan Documents" shall mean that certain Business
Loan Agreement of even date herewith between Borrower and Bank,
promissory notes from Borrower in favor of Bank, and all other
agreements, documents, and instruments evidencing any of the
Indebtedness, and other agreements, documents, and instruments executed
by Borrower in connection with such loan agreement, promissory notes,
and other agreements, documents, and instruments evidencing any of the
Indebtedness, all as now in effect and as hereafter amended, restated,
renewed, or superseded.
3. Obligations Independent. The obligations hereunder are
independent of the obligations of Borrower or any other guarantor, and a
separate action or actions may be brought and prosecuted against Guarantor
whether action is brought against Borrower or any other guarantor or whether
Borrower or any other guarantor be joined in any such action or actions. Anyone
executing this Guaranty shall be bound by its terms without regard to execution
by anyone else.
4. Rights of Bank. Guarantor authorizes Bank, without notice
or demand and without affecting its liability hereunder, from time to time to:
(a) renew, compromise, extend, accelerate, or
otherwise change the time for payment, or otherwise change the terms,
of the Indebtedness or any part thereof, including increase or decrease
of the rate of interest thereon, or otherwise change the terms of any
Loan Documents;
(b) receive and hold security for the payment of this
Guaranty or any Indebtedness and exchange, enforce, waive, release,
fail to perfect, sell, or otherwise dispose of any such security;
(c) apply such security and direct the order or
manner of sale thereof as Bank in its discretion may determine;
(d) release or substitute any Guarantor or any one or
more of any endorsers or other guarantors of any of the Indebtedness;
and
(e) permit the Indebtedness to exceed Guarantor's
liability under this Guaranty, and Guarantor agrees that any amounts
received by Bank from any source, other than from Guarantor, shall be
deemed to be applied first to any unguaranteed portion of the
Indebtedness.
5. Guaranty to be Absolute. Guarantor agrees that until the
Indebtedness has been paid in full and any commitments of Bank or facilities
provided by Bank with respect to the Indebtedness have been terminated,
Guarantor shall not be released by or because of the taking, or failure to take,
any action that might in any manner or to any extent vary the risks of Guarantor
under this Guaranty or that, but for this paragraph, might discharge or
otherwise reduce, limit, or
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modify Guarantor's obligations under this Guaranty. Guarantor waives and
surrenders any defense to any liability under this Guaranty based upon any such
action, including but not limited to any action of Bank described in the
immediately preceding paragraph of this Guaranty. It is the express intent of
Guarantor that Guarantor's obligations under this Guaranty are and shall be
absolute and unconditional.
6. Guarantor's Waivers of Certain Rights and Certain Defenses.
Guarantor waives:
(a) any right to require Bank to proceed against
Borrower, proceed against or exhaust any security for the Indebtedness,
or pursue any other remedy in Bank's power whatsoever;
(b) any defense arising by reason of any disability
or other defense of Borrower, or the cessation from any cause
whatsoever of the liability of Borrower;
(c) any defense based on any claim that Guarantor's
obligations exceed or are more burdensome than those of Borrower; and
(d) the benefit of any statute of limitations
affecting Guarantor's liability hereunder.
No provision or waiver in this Guaranty shall be construed as limiting the
generality of any other waiver contained in this Guaranty.
7. Waiver of Subrogation. Until the Indebtedness has been paid
in full and any commitments of Bank or facilities provided by Bank with respect
to the Indebtedness have been terminated, even though the Indebtedness may be in
excess of Guarantor's liability hereunder, Guarantor waives any right of
subrogation, reimbursement, indemnification, and contribution (contractual,
statutory, or otherwise) including, without limitation, any claim or right of
subrogation under the Bankruptcy Code (Title 11, United States Code) or any
successor statute, arising from the existence or performance of this Guaranty,
and Guarantor waives any right to enforce any remedy which Bank now has or may
hereafter have against Borrower, and waives any benefit of, and any right to
participate in, any security now or hereafter held by Bank.
8. Waiver of Notices. Guarantor waives all presentments,
demands for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor, notices of intent to accelerate, notices of
acceleration, notices of any suit or any other action against Borrower or any
other person, any other notices to any party liable on any Loan Document
(including Guarantor), notices of acceptance of this Guaranty, and notices of
the existence, creation, or incurring of new or additional Indebtedness to which
this Guaranty applies or any other Indebtedness of Borrower to Bank.
9. General Partner Liability and Waivers of Other Rights and
Defenses.
(a) If Borrower is a partnership and Guarantor is a
general partner of that partnership, then Guarantor shall not be liable
under this Guaranty for any portion of the Indebtedness which is
secured by real property; provided, however, that Guarantor shall
remain liable under partnership law for all the Indebtedness.
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(b) Guarantor waives any rights and defenses that are
or may become available to Guarantor by reason of Sections 2787 to
2855, inclusive, of the California Civil Code.
(c) Guarantor waives all rights and defenses that
Guarantor may have because any of the Indebtedness is secured by real
property. This means, among other things: (i) Bank may collect from
Guarantor without first foreclosing on any real or personal property
collateral pledged by Borrower; and (ii) if Bank forecloses on any real
property collateral pledged by Borrower: (1) the amount of the
Indebtedness may be reduced only by the price for which that collateral
is sold at the foreclosure sale, even if the collateral is worth more
than the sale price, and (2) Bank may collect from Guarantor even if
Bank, by foreclosing on the real property collateral, has destroyed any
right Guarantor may have to collect from Borrower. This is an
unconditional and irrevocable waiver of any rights and defenses
Guarantor may have because any of the Indebtedness is secured by real
property. These rights and defenses include, but are not limited to,
any rights or defenses based upon Section 580a, 580b, 580d, or 726 of
the California Code of Civil Procedure.
(d) Guarantor waives any right or defense it may have
at law or equity, including California Code of Civil Procedure Section
580a, to a fair market value hearing or action to determine a
deficiency judgment after a foreclosure.
10. Security. To secure all of Guarantor's obligations
hereunder, Guarantor assigns and grants to Bank a security interest in all
moneys, securities, and other property of Guarantor now or hereafter in the
possession of Bank, all deposit accounts of Guarantor maintained with Bank, and
all proceeds thereof. Upon default or breach of any of Guarantor's obligations
to Bank, Bank may apply any deposit account to reduce the Indebtedness, and may
foreclose any collateral as provided in the Uniform Commercial Code and in any
security agreements between Bank and Guarantor.
11. Subordination. Any obligations of Borrower to Guarantor,
now or hereafter existing, including but not limited to any obligations to
Guarantor as subrogee of Bank or resulting from Guarantor's performance under
this Guaranty, are hereby subordinated to the Indebtedness. In addition to
Guarantor's waiver of any right of subrogation as set forth in this Guaranty
with respect to any obligations of Borrower to Guarantor as subrogee of Bank,
Guarantor agrees that, if Bank so requests, Guarantor shall not demand, take, or
receive from Borrower, by setoff or in any other manner, payment of any other
obligations of Borrower to Guarantor until the Indebtedness has been paid in
full and any commitments of Bank or facilities provided by Bank with respect to
the Indebtedness have been terminated. If any payments are received by Guarantor
in violation of such waiver or agreement, such payments shall be received by
Guarantor as trustee for Bank and shall be paid over to Bank on account of the
Indebtedness, but without reducing or affecting in any manner the liability of
Guarantor under the other provisions of this Guaranty. Any security interest,
lien, or other encumbrance that Guarantor may now or hereafter have on any
property of Borrower is hereby subordinated to any security interest, lien, or
other encumbrance that Bank may have on any such property.
12. Revocation of Guaranty.
(a) This Guaranty may be revoked at any time by
Guarantor in respect to future transactions, unless there is a
continuing consideration as to such transactions which Guarantor does
not renounce. Such revocation shall be effective upon actual
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receipt by Bank, at the address shown below or at such other address as
may have been provided to Guarantor by Bank, of written notice of
revocation. Revocation shall not affect any of Guarantor's obligations
or Bank's rights with respect to transactions committed or entered into
prior to Bank's receipt of such notice, regardless of whether or not
the Indebtedness related to such transactions, before or after
revocation, has been incurred, renewed, compromised, extended,
accelerated, or otherwise changed as to any of its terms, including
time for payment or increase or decrease of the rate of interest
thereon, and regardless of any other act or omission of Bank authorized
hereunder. Revocation by Guarantor shall not affect any obligations of
any other guarantor.
(b) Guarantor acknowledges and agrees that this
Guaranty may be revoked only in accordance with the foregoing
provisions of this paragraph and shall not be revoked simply as a
result of any change in name, location, or composition or structure of
Borrower, the dissolution of Borrower, or the termination, increase,
decrease, or other change of any personnel or owners of Borrower.
13. Reinstatement of Guaranty. If this Guaranty is revoked,
returned, or canceled, and subsequently any payment or transfer of any interest
in property by Borrower to Bank is rescinded or must be returned by Bank to
Borrower, this Guaranty shall be reinstated with respect to any such payment or
transfer, regardless of any such prior revocation, return, or cancellation.
14. Stay of Acceleration. In the event that acceleration of
the time for payment of any of the Indebtedness is stayed upon the insolvency,
bankruptcy, or reorganization of Borrower or otherwise, all such Indebtedness
guaranteed by Guarantor shall nonetheless be payable by Guarantor immediately if
requested by Bank.
15. No Deductions. All payments by Guarantor hereunder shall
be paid in full, without setoff or counterclaim or any deduction or withholding
whatsoever, including, without limitation, for any and all present and future
taxes. In the event that Guarantor or Bank is required by law to make any such
deduction or withholding, Guarantor agrees to pay on behalf of Bank such amount
directly to the appropriate person or entity, or if the Guarantor cannot legally
comply with the foregoing, Guarantor shall pay to Bank such additional amounts
as will result in the receipt by Bank of the full amount payable hereunder.
Guarantor shall promptly provide Bank with evidence of payment of any such
amount made on Bank's behalf.
16. Information Relating to Borrower. Guarantor acknowledges
and agrees that it shall have the sole responsibility for, and has adequate
means of, obtaining from Borrower such information concerning Borrower's
financial condition or business operations as Guarantor may require, and that
Bank has no duty, and Guarantor is not relying on Bank, at any time to disclose
to Guarantor any information relating to the business operations or financial
condition of Borrower.
17. Borrower's Authorization. Where Borrower is a corporation,
partnership, or limited liability company, it is not necessary for Bank to
inquire into the powers of Borrower or of the officers, directors, partners,
members, managers, or agents acting or purporting to act on its behalf, and any
Indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder, subject to any limitations on Guarantor's
liability set forth herein.
18. Information Relating to Guarantor. Guarantor authorizes
Bank to verify or
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check any information given by Guarantor to Bank, check Guarantor's credit
references, verify employment, and obtain credit reports. Guarantor acknowledges
and agrees that the authorizations provided in this paragraph apply to any
individual general partner of Guarantor and to Guarantor's spouse and any such
general partner's spouse if Guarantor or such general partner is married and
lives in a community property state.
19. Change of Status. Guarantor shall not enter into any
consolidation, merger, or other combination unless Guarantor is the surviving
business entity. Further, Guarantor shall not change its legal structure unless
(a) Guarantor obtains the prior written consent of Bank and (b) all Guarantor's
obligations under this Guaranty are assumed by the new business entity.
20. Notices. All notices required under this Guaranty shall be
personally delivered or sent by first class mail, postage prepaid, or by
overnight courier, to the addresses on the signature page of this Guaranty, or
sent by facsimile to the fax numbers listed on the signature page, or to such
other addresses as Bank and Guarantor may specify from time to time in writing.
Notices sent by (a) first class mail shall be deemed delivered on the earlier of
actual receipt or on the fourth business day after deposit in the U.S. mail,
postage prepaid, (b) overnight courier shall be deemed delivered on the next
business day, and (c) telecopy shall be deemed delivered when transmitted.
21. Successors and Assigns. This Guaranty (a) binds Guarantor
and Guarantor's executors, administrators, successors, and assigns, provided
that Guarantor may not assign its rights or obligations under this Guaranty
without the prior written consent of Bank, and (b) inures to the benefit of Bank
and Bank's indorsees, successors, and assigns. Bank may, without notice to
Guarantor and without affecting Guarantor's obligations hereunder, sell, assign,
grant participations in, or otherwise transfer to any other person, firm, or
corporation the Indebtedness and this Guaranty, in whole or in part. Guarantor
agrees that Bank may disclose to any assignee or purchaser, or any prospective
assignee or purchaser, of all or part of the Indebtedness any and all
information in Bank's possession concerning Guarantor, this Guaranty, and any
security for this Guaranty.
22. Amendments, Waivers, and Severability. No provision of
this Guaranty may be amended or waived except in writing. No failure by Bank to
exercise, and no delay in exercising, any of its rights, remedies, or powers
shall operate as a waiver thereof, and no single or partial exercise of any such
right, remedy, or power shall preclude any other or further exercise thereof or
the exercise of any other right, remedy, or power. The unenforceability or
invalidity of any provision of this Guaranty shall not affect the enforceability
or validity of any other provision of this Guaranty.
23. Costs and Expenses. Guarantor agrees to pay all reasonable
attorneys' fees, including allocated costs of Bank's in-house counsel, and all
other costs and expenses which may be incurred by Bank (a) in the enforcement of
this Guaranty or (b) in the preservation, protection, or enforcement of any
rights of Bank in any case commenced by or against Guarantor or Borrower under
the Bankruptcy Code (Title 11, United States Code) or any similar or successor
statute.
24. Governing Law and Jurisdiction. This Guaranty shall be
governed by and construed under the laws of the State of California. Guarantor
irrevocably (a) submits to the non-exclusive jurisdiction of any federal or
state court sitting in the State of California in any action or proceeding
arising out of or relating to this Guaranty and (b) waives to the fullest extent
permitted by law any defense asserting an inconvenient forum in connection
therewith.
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Service of process by Bank in connection with such action or proceeding shall be
binding on Guarantor if sent to Guarantor by registered or certified mail at its
address specified below.
25. Arbitration and Waiver of Jury Trial.
(a) This paragraph concerns the resolution of any
controversies or claims between the parties, whether arising in
contract, tort or by statute, including but not limited to
controversies or claims that arise out of or relate to: (i) this
agreement (including any renewals, extensions or modifications); or
(ii) any document related to this agreement (collectively a "Claim").
For the purposes of this arbitration provision only, the term "parties"
shall include any parent corporation, subsidiary or affiliate of the
Bank involved in the servicing, management or administration of any
obligation described or evidenced by this agreement.
(b) At the request of any party to this agreement,
any Claim shall be resolved by binding arbitration in accordance with
the Federal Arbitration Act (Title 9, U. S. Code) (the "Act"). The Act
will apply even though this agreement provides that it is governed by
the law of a specified state.
(c) Arbitration proceedings will be determined in
accordance with the Act, the applicable rules and procedures for the
arbitration of disputes of JAMS or any successor thereof ("JAMS"), and
the terms of this paragraph. In the event of any inconsistency, the
terms of this paragraph shall control.
(d) The arbitration shall be administered by JAMS and
conducted, unless otherwise required by law, in any U. S. state where
real or tangible personal property collateral for this credit is
located or if there is no such collateral, in the state specified in
the governing law section of this agreement. All Claims shall be
determined by one arbitrator; however, if Claims exceed $5,000,000,
upon the request of any party, the Claims shall be decided by three
arbitrators. All arbitration hearings shall commence within 90 days of
the demand for arbitration and close within 90 days of commencement and
the award of the arbitrator(s) shall be issued within 30 days of the
close of the hearing. However, the arbitrator(s), upon a showing of
good cause, may extend the commencement of the hearing for up to an
additional 60 days. The arbitrator(s) shall provide a concise written
statement of reasons for the award. The arbitration award may be
submitted to any court having jurisdiction to be confirmed and
enforced.
(e) The arbitrator(s) will have the authority to
decide whether any Claim is barred by the statute of limitations and,
if so, to dismiss the arbitration on that basis. For purposes of the
application of the statute of limitations, the service on JAMS under
applicable JAMS rules of a notice of Claim is the equivalent of the
filing of a lawsuit. Any dispute concerning this arbitration provision
or whether a Claim is arbitrable shall be determined by the
arbitrator(s). The arbitrator(s) shall have the power to award legal
fees pursuant to the terms of this agreement.
(f) This paragraph does not limit the right of any
party to: (i) exercise self-help remedies, such as but not limited to,
setoff; (ii) initiate judicial or non-judicial foreclosure against any
real or personal property collateral; (iii) exercise any judicial or
power of sale rights, or (iv) act in a court of law to obtain an
interim remedy, such as but not limited to, injunctive relief, writ of
possession or appointment of a receiver, or additional or supplementary
remedies.
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(g) The procedure described above will not apply if
the Claim, at the time of the proposed submission to arbitration,
arises from or relates to an obligation to the Bank secured by real
property. In this case, all of the parties to this agreement must
consent to submission of the Claim to arbitration. If both parties do
not consent to arbitration, the Claim will be resolved as follows: The
parties will designate a referee (or a panel of referees) selected
under the auspices of JAMS in the same manner as arbitrators are
selected in JAMS administered proceedings. The designated referee(s)
will be appointed by a court as provided in California Code of Civil
Procedure Section 638 and the following related sections. The referee
(or presiding referee of the panel) will be an active attorney or a
retired judge. The award that results from the decision of the
referee(s) will be entered as a judgment in the court that appointed
the referee, in accordance with the provisions of California Code of
Civil Procedure Sections 644 and 645.
(h) The filing of a court action is not intended to
constitute a waiver of the right of any party, including the suing
party, thereafter to require submittal of the Claim to arbitration.
(i) By agreeing to binding arbitration, the parties
irrevocably and voluntarily waive any right they may have to a trial by
jury in respect of any Claim. Furthermore, without intending in any way
to limit this agreement to arbitrate, to the extent any Claim is not
arbitrated, the parties irrevocably and voluntarily waive any right
they may have to a trial by jury in respect of such Claim. This
provision is a material inducement for the parties entering into this
agreement.
Executed this _______ day of _______________________, _____.
Pacific Sunwear Stores Corp.
By: _________________________________________________
Printed Name: _______________________________________
Title: ______________________________________________
Xxxxxxxxxx.xxx Corp.
By: _________________________________________________
Printed Name: _______________________________________
Title: ______________________________________________
Address for notices to Bank: Address for notices to Guarantor:
000 Xxxxx Xxxxxxxxx, 0xx Xxxxx 0000 Xxxx Xx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000 Xxxxxxx, XX 00000
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