EXHIBIT 10.2
[LOGO] CONGRESS
CONTINUING GUARANTY AND WAIVER
BORROWER: L.A. GEAR CALIFORNIA, INC.
GUARANTOR(S): X.X. XXXX, INC.
DATE: MAY 21, 1997
THIS CONTINUING GUARANTY AND WAIVER (hereinafter called "Guaranty") is executed
by the above-named guarantor(s) (jointly and severally, the "Guarantor"), as of
the above date, in favor of CONGRESS FINANCIAL CORPORATION (WESTERN)
(hereinafter called "Congress"), whose address is 000 Xxxxx Xxxx Xxxxxx, Xxxxx
0000, Xxxxxxxx, Xxxxxxxxxx 00000 with respect to the Indebtedness of the above-
named borrower (hereinafter called "Borrower").
1. CONTINUING GUARANTY. Guarantor hereby unconditionally guarantees and
promises to pay on demand to Congress, at the address indicated above, or at
such other address as Congress may direct, in lawful money of the United
States, and to perform for the benefit of Congress, all Indebtedness of
Borrower now or hereafter owing to or held by Congress. As used herein, the
term "Indebtedness" is used in its most comprehensive sense and shall mean
and include without limitation: (a) any and all debts, duties, obligations,
liabilities, representations, warranties and guaranties of Borrower or any
one or more of them, heretofore, now, or hereafter made, incurred, or
created, whether directly to Congress or acquired by Congress by assignment
or otherwise, or held by Congress on behalf of others, however arising,
whether voluntary or involuntary, due or not due, absolute or contingent,
liquidated or unliquidated, certain or uncertain, determined or undetermined,
monetary or nonmonetary, written or oral, and whether Borrower may be liable
individually or jointly with others, and regardless of whether recovery
thereon may be or hereafter become barred by any statute of limitations,
discharged or uncollectible in any bankruptcy, insolvency or other
proceeding, or otherwise unenforceable; and (b) any and all amendments,
modifications, renewals and extensions of any or all of the foregoing,
including without limitation amendments, modifications, renewals and
extensions which are evidenced by any new or additional instrument, document
or agreement; and (c) any and all attorneys' fees, court costs, and
collection charges incurred in endeavoring to collect or enforce any of the
foregoing against Borrower, Guarantor, or any other person liable thereon
(whether or not suit be brought) and any other expenses of, for or incidental
to collection thereof. As used herein, the term "Borrower" shall include any
successor to the business and assets of Borrower and shall also include
Borrower in its capacity as a debtor or debtor in possession under the
federal Bankruptcy Code, and any trustee, custodian or receiver for Borrower
or any of its assets, should Borrower hereafter become the subject of any
bankruptcy or insolvency proceeding, voluntary or involuntary; and all
indebtedness, liabilities and obligations incurred by any such person shall
be included in the Indebtedness guaranteed hereby. This Guaranty is given in
consideration for credit and other financial accommodations to be provided by
Congress to Borrower pursuant to that certain Loan and Security Agreement of
even date herewith (as amended from time to time, the "Loan Agreement") and
related documents (as amended from time to time, collectively, with the Loan
Agreement, the "Loan Documents"). All sums due under this Guaranty shall bear
interest from the date due until the date paid at the highest rate charged
with respect to any of the Indebtedness.
2. WAIVERS. Guarantor hereby waives: (a) presentment for payment, notice of
dishonor, demand, protest, and notice thereof as to any instrument, and all
other notices and demands to which Guarantor might be entitled, including
without limitation notice of all of the following: the acceptance hereof; the
creation, existence, or acquisition of any Indebtedness; the amount of the
Indebtedness from time to time outstanding; any foreclosure sale or other
disposition of any property which secures any or all of the Indebtedness or
which secures the obligations of any other guarantor of any or all of the
Indebtedness; any adverse change in Borrower's financial position; any other
fact which might increase Guarantor's risk; any default, partial payment or
non-payment of all or any part of the Indebtedness; the occurrence of any
other Event of Default (as hereinafter defined); any and all agreements and
arrangements between Congress and Borrower and any changes, modifications, or
extensions thereof, and any revocation, modification or release of any
guaranty of any or all of the Indebtedness by any person (including without
limitation any other person signing this Guaranty): (b) any right to require
Congress to institute suit against, or to exhaust its rights and remedies
against) Borrower or any other person, or to proceed against any property of
any kind which secures all or any part of the Indebtedness, or to exercise
any right of offset or other right
with respect to any reserves, credits or deposit accounts held by or
maintained with Congress or any indebtedness of Congress to Xxxxxxxx, or to
exercise any other right or power, or pursue any other remedy Congress may
have; (c) any defense arising by reason of any disability or other defense of
Borrower or any other guarantor or any endorser, co-maker or other person, or
by reason of the cessation from any cause whatsoever of any liability of
Borrower or any other guarantor or any endorser, co-maker or other person,
with respect to all or any part of the Indebtedness, or by reason of any act
or omission of Congress or others which directly or indirectly results in the
discharge or release of Borrower or any other guarantor or any other person
or any Indebtedness or any security therefor, whether by operation of law or
otherwise; (d) any defense arising by reason of any failure of Congress to
obtain, perfect, maintain or keep in force any security interest in, or lien
or encumbrance upon, any property of Borrower or any other person; (e) any
defense based upon any failure of Congress to give Guarantor notice of any
sale or other disposition of any property securing any or all of the
Indebtedness, or any defects in any such notice that may be given, or any
failure of Congress to comply with any provision of applicable law in
enforcing any security interest in or lien upon any property securing any or
all of the Indebtedness including, but not limited to, any failure by Congress
to dispose of any property securing any or all of the Indebtedness in a
commercially reasonable manner; (f) any defense based upon or arising out of
any bankruptcy, insolvency, reorganization, arrangement, readjustment of
debt, liquidation or dissolution proceeding commenced by or against Borrower
or any other guarantor or any endorser, co-maker or other person, including
without limitation any discharge of, or bar against collecting, any of the
Indebtedness (including without limitation any interest thereon), in or as a
result of any proceeding; and (g) the benefit of any and all statutes of
limitation with respect to any action based upon, arising out of or related
to this Guaranty. Until all of the Indebtedness has been paid, performed, and
discharged in full, nothing shall discharge or satisfy the liability of
Guarantor hereunder except the full performance and payment of all of the
Indebtedness. If any claim is ever made upon Congress for repayment or
recovery of any amount or amounts received by Congress in payment of or on
account of any of the Indebtedness, because of any claim that any such
payment constituted a preferential transfer or fraudulent conveyance, or for
any other reason whatsoever, and Congress repays all or part of said amount
by reasons of any judgment, decree or order of any court or administrative
body having jurisdiction over Congress or any of its property, or by reason
of any settlement or compromise of any such claim effected by Congress with
any such claimant (including without limitation the Borrower), then and in
any such event, Guarantor agrees that any such judgment, decree, order,
settlement and compromise shall be binding upon Guarantor, notwithstanding any
revocation or release of this Guaranty or the cancellation of any note or
other instrument evidencing any of the Indebtedness, or any release of any of
the Indebtedness, and the Guarantor shall be and remain liable to Congress
under this Guaranty for the amount so repaid or recovered, to the same extent
as if such amount had never originally been received by Congress, and the
provisions of this sentence shall survive, and continue in effect,
notwithstanding any revocation or release of this Guaranty. Until all of the
Indebtedness has been irrevocably paid and performed in full, Guarantor
hereby expressly and unconditionally waives all rights of subrogation,
reimbursement and indemnity of every kind against Borrower, and all rights of
recourse to any assets or property of Borrower, and all rights to any
collateral or security held for the payment and performance of any
Indebtedness, including (but not limited to) any of the forgoing rights which
Guarantor may have under any present or future document or agreement with any
Borrower or other person, and including (but not limited to) any of the
foregoing rights which Guarantor may have under any equitable doctrine of
subrogation, implied contract, or unjust enrichment, or any other equitable
or legal doctrine. Neither Congress, nor any of its directors, officers,
employees, agents, attorneys or any other person affiliated with or
representing Congress shall be liable for any claims, demands, losses or
damages, of any kind whatsoever, made, claimed, incurred or suffered by
Guarantor or any other party through the ordinary negligence of Congress, or
any of its directors, officers, employees, agents, attorneys or any other
person affiliated with or representing Congress.
3. CONSENTS. Guarantor hereby consents and agrees that, without notice to or
by Guarantor and without affecting or impairing in any way the obligations or
liability of Guarantor hereunder, Congress may, from time to time before or
after revocation of this Guaranty, do any one or more of the following in
Congress' sole and absolute discretion: (a) accelerate (in accordance with
the Loan Documents), accept partial payments of, compromise or settle, renew,
extend the time for the payment, discharge, or performance of, refuse to
enforce, and release all or any parties to, any or all of the Indebtedness;
(b) grant any other indulgence to Borrower or any other person in respect of
any or all of the Indebtedness or any other matter; (c) accept, release,
waive, surrender, enforce, exchange, modify, impair, or extend the time for
the performance, discharge, or payment or, any and all property of any kind
securing any or all of the Indebtedness or any guaranty of any or all of the
Indebtedness, or on which Congress at any time may have a lien, or refuse to
enforce its rights or make any compromise or settlement or agreement therefor
in respect of any or all of such property; (d) substitute or add, or take any
action or omit to take any action which results in the release of, any one or
more endorsers or guarantors of all or any part of the Indebtedness,
including, without limitation one or more parties to this Guaranty,
regardless of any destruction or impairment of any right of contribution or
other right of Guarantor; (e) amend, alter or change in any respect
whatsoever any term or provision relating to an or all of the Indebtedness,
including the rate of interest thereon; (f) apply any sums received from
Borrower, any other guarantor, endorser, or co-signer, or from the
disposition of any collateral or security, to any indebtedness whatsoever
owing from such person or secured by such collateral or security, in such
manner and order as Congress determines
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in its sole discretion, and regardless of whether such indebtedness is part
of the Indebtedness, is secured, or is due and payable; (g) apply any sums
received from Guarantor or from the disposition of any collateral or security
securing the obligations of Guarantor, to any of the Indebtedness in such
manner and order as Congress determines in its sole discretion, regardless of
whether or not such Indebtedness is secured or is due and payable. Guarantor
consents and agrees that Congress shall be under no obligation to marshal any
assets in favor of Guarantor, or against or in payment of any or all of the
Indebtedness. Guarantor further consents and agrees that Congress shall have
no duties or responsibilities whatsoever with respect to any property
securing any or all of the Indebtedness. Without limiting the generality of
the foregoing, Congress shall have no obligation to monitor, verify, audit,
examine, or obtain or maintain any insurance with respect to, any property
securing any or all of the Indebtedness.
4. ACCOUNT STATED. Congress' books and records showing the account between
it and the Borrower shall be admissible in evidence in any action or
proceeding as presumptive proof of the items therein set forth. Congress'
monthly statements rendered to the Borrower shall be binding upon the
Guarantor (whether or not the Guarantor receives copies thereof), and shall
constitute an account stated between Congress and the Borrower, unless
Congress receives a written statement of the Borrower's exceptions within 30
days after the statement was mailed to the Borrower. The Guarantor assumes
full responsibility for obtaining copies of such monthly statements from the
Borrower, if the Guarantor desires such copies.
5. EXERCISE OF RIGHTS AND REMEDIES; FORECLOSURE OF TRUST DEEDS. Guarantor
hereby waives all rights of subrogation, reimbursement, indemnification, and
contribution and any other rights and defenses that are or may become
available to the Guarantor or other surety by reason of California Civil Code
Sections 2787 to 2855, inclusive. The Guarantor waives all rights and
defenses that the Guarantor may have because the Borrower's Indebtedness is
secured by real property. This means, among other things: (1) Congress may
collect from the Guarantor without first foreclosing on any real or personal
property collateral pledged by the Borrower. (2) If Congress forecloses on
any real property collateral pledged by the Borrower: (A) 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. (B) Congress may collect from the Guarantor even if Congress, by
foreclosing on the real property collateral, has destroyed any right the
Guarantor may have to collect from the Borrower. This is an unconditional and
irrevocable waiver of any rights and defenses the Guarantor may have because
the Borrower's Indebtedness is secured by real property. These rights and
defenses include, but are not limited to, any right or defenses based upon
Section 580a, 580b, 580d, or 726 of the Code of Civil Procedure. The
Guarantor waives all rights and defenses arising out of an election of
remedies by Congress, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed obligation,
has destroyed the Guarantor's rights of subrogation and reimbursement against
the principal by the operation of Section 580d of the Code of Civil Procedure
or otherwise.
6. EVENTS OF DEFAULT. Notwithstanding the terms of all or any part of the
Indebtedness, the obligations of the Guarantor hereunder to pay and perform
all of the Indebtedness shall, at the option of Congress, immediately become
due and payable, without notice, and without regard to the expressed maturity
of any of the Indebtedness, in the event: (a) any warranty, representation,
statement, report, or certificate made or delivered to Congress by Borrower
or Guarantor, or any of their respective officers, partners, employees, or
agents, is incorrect, false, untrue, or misleading when given in any material
respect; or (b) there shall occur and be continuing, any Event of Default (as
defined in any of the Loan Documents, or in the Security Agreement between
Guarantor and Congress of even date, as amended (the "Security Agreement"))
or any other present or future document or agreement between Borrower and
Congress or between Guarantor and Congress; or (c) Guarantor shall revoke
this Guaranty or contest or deny liability under this Guaranty. All of the
foregoing are hereinafter referred to as "Events of Default".
7. INDEMNITY. Guarantor hereby agrees to indemnify Congress and hold
Congress harmless from and against any and all claims, debts, liabilities,
demands, obligations, actions, causes of action, penalties, costs and
expenses (including without limitation attorney's fees), of every nature,
character and description, which Congress may sustain or incur based upon or
arising out of any of the Indebtedness, any actual or alleged failure to
collect and pay over any withholding or other tax relating to Borrower or its
employees, any relationship or agreement between Congress and Borrower, any
actual or alleged failure of Congress to comply with any writ of attachment
or other legal process relating to Borrower or any of its property, or any
other matter, cause or thing whatsoever occurred, done, omitted or suffered
to be done by Congress relating in any way to Borrower or the Indebtedness
(except any such amounts sustained or incurred as the result of the gross
negligence or willful misconduct of Congress or any of its directors,
officers, employees, agents, attorneys, or any other person affiliated with
or representing Congress). Notwithstanding any provision in this Guaranty to
the contrary, the indemnity agreement set forth in this Section shall survive
any termination or revocation of this Guaranty and shall for all purposes
continue in full force and effect.
8. SUBORDINATION. Any and all rights of Guarantor under any and all debts,
liabilities and obligations owing from Borrower to Guarantor, including any
security for and guaranties of any such obligations, whether now existing or
hereinafter arising, are hereby subordinated in right of payment to the prior
payment in full of all of the Indebtedness. No payment in respect of any such
subordinated obligations shall at any time be made to or accepted by
Guarantor if at the time of such payment any Indebtedness is outstanding,
provided that Borrower may pay to Guarantor, and Guarantor may accept,
dividends and
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distributions permitted by the Loan Agreement. If any Event of default has
occurred, Borrower and any assignee, trustee in bankruptcy, receiver, or any
other person having custody or control over any or all of Borrower's property
are hereby authorized and directed to pay to Congress the entire unpaid
balance of the indebtedness before making any payments whatsoever to
Guarantor, whether as a creditor, shareholder, or otherwise; and insofar as
may be necessary for that purpose, Guarantor hereby assigns and transfers to
Congress all rights to any and all debts, liabilities and obligations owing
from Borrower to Guarantor, including any security for and guaranties of any
such obligations, whether now existing or hereafter arising, including
without limitation any payments, dividends or distributions out of the
business or assets of Borrower. Any amounts received by Guarantor in
violation of the foregoing provisions shall be received and held as trustee
for the benefit of Congress and shall forthwith be paid over to Congress to
be applied to the Indebtedness in such order and sequence as Congress shall
in its sole discretion determine, without limiting or affecting any other
right or remedy which Congress any have hereunder or otherwise and without
otherwise affecting the liability of Guarantor hereunder. Guarantor hereby
expressly waives any right to set-off or assert any counterclaim against
borrower.
9. REVOCATION. This is a Continuing Guaranty relating to all of the
Indebtedness, including Indebtedness arising under successive transactions
which from time to time continue the Indebtedness or renew it after it has
been satisfied. Guarantor waives all benefits of California Civil Code
Section 2815, and agrees that the obligations of Guarantor hereunder may not
be terminated or revoked in any manner except by giving 90 days' advance
written notice of revocation to Congress at its address above by registered
first-class U.S. mail, postage prepaid, return receipt requested, and only as
to new loans made by Congress to Borrower more than 90 days after actual
receipt of such written notice by Congress. No termination or revocation of
this Guaranty shall be effective until 90 days following the date of actual
receipt of said written notice of revocation by Congress. Notwithstanding
such written notice of revocation or any other act of Guarantor or any other
event or circumstance, Guarantor agrees that this Guaranty and all consents,
waivers and other provisions hereof shall continue in full force and effect
as to any and all Indebtedness which is outstanding on or before the 90th day
following actual receipt of said written notice of revocation by Congress,
and all extensions, renewals and modifications of said Indebtedness
(including without limitation amendments, extensions, renewals and
modifications which are evidenced by new or additional instruments,
documents or agreements executed before or after expiration of said 90-day
period), and all interest thereon, accruing before or after expiration of
said 90-day period, and all attorney's fees, court costs and collection
charges, incurred before or after expiration of said 90-day period, in
endeavoring to collect or enforce any of the foregoing against Borrower,
Guarantor or any other person liable thereon (whether or not suit be brought)
and any other expenses of, for or incidental to collection thereof.
10. INDEPENDENT LIABILITY. Guarantor hereby agrees that one or more
successive or concurrent actions may be brought hereon against Guarantor, in
the same action in which Borrower may be sued or in separate actions, as often
as deemed advisable by Congress. The liability of Guarantor hereunder is
exclusive and independent of any other guaranty of any or all of the
indebtedness whether executed by Guarantor or by any other guarantor
(including without limitation any other persons signing this Guaranty). The
liability of Guarantor hereunder shall not be affected, revoked, impaired, or
reduced by any one or more of the following: (a) the fact that the
Indebtedness exceeds the maximum amount of Guarantor's liability, if any,
specified herein or elsewhere (and no agreement specifying a maximum amount
of Guarantor's liability shall be enforceable unless set forth in a writing
signed by Congress or set forth in this Guaranty); or (b) any direction as to
the application of payment by Borrower or by any other party; or (c) any
other continuing or restrictive guaranty or undertaking or any limitation on
the liability of any other guarantor (whether under this Guaranty or under any
other agreement); or (d) any payment on or reduction of any such other
guaranty or undertaking; or (e) any revocation, amendment, modification or
release of any such other guaranty or undertaking; or (f) any dissolution or
termination of or increase, decrease, or change in membership of any
Guarantor which is a partnership. Guarantor hereby expressly represents that
he was not induced to give this Guaranty by the fact that there are or may be
other guarantors either under this Guaranty or otherwise, and Guarantor
agrees that any release of any one or more of such other guarantors shall not
release Guarantor from his obligations hereunder either in full or to any
lesser extent. If Xxxxxxxxx is a married person, Xxxxxxxxx hereby expressly
agrees that recourse may be had against his or her separate property for all
of his or her obligations hereunder.
11. FINANCIAL CONDITION OF BORROWER. Guarantor is fully aware of the
financial condition of Xxxxxxxx and is executing and delivering this Guaranty
at Xxxxxxxx's request and based solely upon his own independent investigation
of all matters pertinent hereto, and Guarantor is not relying in any manner
upon any representation or statement of Congress with respect thereto.
Guarantor represents and warrants that he is in a position to obtain, and
Guarantor hereby assumes full responsibility for obtaining, any additional
information concerning Borrower's financial condition and any other matter
pertinent hereto as Guarantor may desire, and Guarantor is not relying upon
or expecting Congress to furnish to him any information now or hereafter in
Congress' possession concerning the same or any other matter. By executing
this Guaranty, Guarantor knowingly accepts the full range of risks
encompassed within a contract of continuing guaranty, which risks Guarantor
acknowledges include without limitation the possibility that Borrower will
incur additional Indebtedness for which Guarantor will be liable hereunder
after Xxxxxxxx's financial condition or ability to pay such Indebtedness has
deteriorated and/or after bankruptcy or insolvency proceedings have been
commenced by o against Borrower Guarantor shall have no right to require
Congress to obtain
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or disclose any information with respect to the Indebtedness, the financial
condition or character of Xxxxxxxx, the existence of any collateral or
security for any or all of the Indebtedness, the filing by or against
Borrower of any bankruptcy or insolvency proceeding, the existence of any
other guaranties of all or any part of the Indebtedness, any action or
non-action on the part of Congress, Borrower, or any other person, or any
other matter, fact, or occurrence.
12. REPORTS AND FINANCIAL STATEMENTS OF GUARANTOR. Guarantor shall, at its
sole cost and expense, at any time and from time to time, prepare or cause to
be prepared, and provide to Congress upon Congress' request (i) such
financial statements and reports concerning Guarantor as are provided for in
the Loan Documents, (ii) any other information concerning Guarantor's
business, financial condition or affairs as Congress may request in its good
faith business judgment, and (iii) copies of any and all foreign, federal,
state and local tax returns and reports of or relating to Guarantor as
Congress may from time to time request in its good faith business judgment.
Guarantor hereby intentionally and knowingly waives any and all rights and
privileges it may have not to divulge or deliver said tax returns, reports
and other information which are requested by Congress hereunder or in any
litigation in which Congress may be involved relating directly or indirectly
to Borrower or to Guarantor. Guarantor further agrees promptly to give
written notice to Congress of any material adverse change in Guarantor's
financial condition and of any condition or event which constitutes an Event
of Default under this Guaranty. All reports and information furnished to
Congress hereunder shall be complete, accurate and correct in all respects.
Whenever requested, Guarantor shall further deliver to Congress a certificate
signed by Guarantor (and, if Guarantor is a partnership, by all general
partners of Guarantor, in their individual capacities, and, if Guarantor is a
corporation, by the president or secretary of Guarantor, in their individual
capacities) warranting and representing that all reports, financial
statements and other documents and information delivered or caused to be
delivered to Congress under this Guaranty, are complete, correct and
accurately present the financial condition of Guarantor in all material
respects, and that there exists on the date of delivery of said certificate
to Congress no condition or event which constitutes an Event of Default under
this Guaranty.
13. REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents and warrants
that (i) it is in Guarantor's direct interest to assist Borrower in procuring
credit, because Borrower is an affiliate of Guarantor, furnishes goods or
services to Guarantor, purchases or acquires goods or services from
Guarantor, and/or otherwise has a direct or indirect corporate or business
relationship with Guarantor, (ii) this Guaranty has been duly and validly
authorized, executed and delivered and constitutes the valid and binding
obligation of Guarantor, enforceable in accordance with its terms, and (iii)
to the best of Guarantor's knowledge, the execution and delivery of this
Guaranty does not violate or constitute a default under (with or without the
giving of notice, the passage of time, or both) any order, judgement, decree,
instrument or agreement to which Guarantor is a party or by which it or its
assets are affected or bound in any material respect.
14. COSTS. Whether or not suit be instituted, Xxxxxxxxx agrees to reimburse
Congress on demand for all reasonable attorneys' fees and all other
reasonable costs and expenses incurred by Congress in enforcing this
Guaranty, or arising out of or relating in any way to this Guaranty, or in
enforcing any of the Indebtedness against Xxxxxxxx. Guarantor, or any other
person, or in connection with any property of any kind securing all or any
part of the Indebtedness. Without limiting the generality of the foregoing,
and in addition thereto, Guarantor shall reimburse Congress on demand for all
reasonable attorneys' fees and costs Congress incurs in any way relating to
Guarantor, Borrower or the Indebtedness, in order to: obtain legal advice;
enforce or seek to enforce any of its rights; commence, intervene in, respond
to, or defend any action or proceeding; file, prosecute or defend any claim
or cause of action in any action or proceeding (including without limitation
any probate claim, bankruptcy claim, third-party claim, creditor claim,
reclamation complaints and complaint for relief from any stay under the
Bankruptcy Code or otherwise): protect, obtain possession of, sell, lease,
dispose of or otherwise enforce any security interest in or lien on any
property of any kind securing any or all of the Indebtedness; or represent
Congress in any litigation with respect to Xxxxxxxx's or Guarantor's affairs.
In the event either Congress or Guarantor files any lawsuit against the other
predicated on a breach of this Guaranty, the prevailing party in such action
shall be entitled to recover its attorneys' fees and costs of suit from the
non-prevailing party.
15. NOTICES. Any notice which a party shall be required or shall desire to
give to the other hereunder (except for notice of revocation, which shall be
governed by Section 10 of this Guaranty) shall be given by personal delivery
or by telecopier or by depositing the same in the United States mail, first
class postage pre-paid, addressed to Congress at its address set forth in the
heading of this Guaranty and to Guarantor at his address set forth under his
signature hereon, and such notices shall be deemed duly given one day after
the date of personal delivery or one day after the date telecopied or 3
business days after the date of mailing as aforesaid. Congress and Guarantor
may change their address for purposes of receiving notices hereunder by
giving written notice thereof to the other party in accordance herewith.
Guarantor shall give Congress immediate written notice of any change in his
address.
16. CONSTRUCTION; SEVERABILITY. If more than one party has executed this
Guaranty, the term "Guarantor" as used herein shall be deemed to refer to all
and any one or more such persons and their obligations hereunder shall be
joint and several. Without limiting the generality of the foregoing, if more
than one person has executed this Guaranty, this Guaranty shall in all
respects be interpreted as though each person signing this Xxxxxxxx had
signed a separate Guaranty, and references herein to "other guarantors" or
words of similar effects shall include without limitation other persons
signing this Guaranty. As used in this Guaranty, the term "property" is used
in its most comprehensive sense and shall mean all property of every kind and
nature whatsoever,
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including without limitation real property, personal property, mixed
property, tangible property and intangible property. Words used herein in the
masculine gender shall include the neuter and feminine gender, words used
herein in the neuter gender shall include the masculine and feminine, words
used herein in the singular shall include the plural and words used in the
plural shall include the singular, wherever the context so reasonably
requires. If any provision of this Guaranty or the application thereof to any
party or circumstance is held invalid, void, inoperative or unenforceable,
the remainder of this Guaranty and the application of such provision to other
parties or circumstances shall not be affected thereby, the provisions of
this Guaranty being severable in any such instance.
17. GENERAL PROVISIONS. Congress shall have the right to seek recourse
against Guarantor to the full extent provided for herein and in any other
instrument or agreement evidencing obligations of Guarantor to Congress, and
against Borrower to the full extent of the Indebtedness. No election in one
form of action or proceeding, or against any party, or on any obligation,
shall constitute a waiver of Congress' right to proceed in any other form of
action or proceeding or against any other party. The failure of Congress to
enforce any of the provisions of this Guaranty at any time or for any period
of time shall not be construed to be a waiver of any such provision or the
right thereafter to enforce the same. All remedies hereunder shall be
cumulative and shall be in addition to all rights, powers and remedies give
to Congress by law or under any other instrument or agreement. Time is of the
essence in the performance by Guarantor of each and every obligation under
this Guaranty. If Borrower is a corporation, partnership or other entity,
Guarantor hereby agrees that Congress shall have no obligation to inquire
into the power or authority of Borrower or any of its officers, directors,
partners, or agents acting or purporting to act on its behalf, and any
Indebtedness made or created in reliance upon the professed exercise of any
such power or authority shall be included in the Indebtedness guaranteed
hereby. This Guaranty is the entire and only agreement between Guarantor and
Congress with respect to the guaranty of the Indebtedness of Borrower by
Guarantor, and all representations, warranties, agreements or undertakings
heretofore or contemporaneously made, which are not set forth herein, are
superseded hereby. No course of dealings between the parties, no usage of the
trade, and no parol or extrinsic evidence of any nature shall be used or be
relevant to supplement or explain or modify any term or provision of this
Guaranty. There are no conditions to the full effectiveness of this Guaranty.
The terms and provisions hereof may not be waived, altered, modified, or
amended except in a writing executed by Xxxxxxxxx and a duly authorized
officer of Congress. All rights, benefits and privileges hereunder shall
inure to the benefit of and be enforceable by Congress and its successors and
assigns and shall be binding upon Guarantor and its successors and assigns.
Section headings are used herein for convenience only. Guarantor acknowledges
that the same may not describe completely the subject matter of the
applicable Section, and the same shall not be used in any manner to construe,
limit, define or interpret any term or provision hereof.
18. GOVERNING LAW; VENUE AND JURISDICTION. This instrument and all acts and
transactions pursuant or relating hereto and all rights and obligations of
the parties hereto shall be governed, construed, and interpreted in
accordance with the internal laws of the State of California. In order to
induce Congress to accept this Guaranty, and as a material part of the
consideration therefor, Guarantor (i) agrees that all actions or proceedings
relating directly or indirectly hereto shall, at the option of Congress, be
litigated in courts located within Los Angeles County, California, (ii)
consents to the jurisdiction of any such court and consents to the service of
process in any such action or proceeding by personal delivery or any other
method permitted by law; and (iii) waives any and all rights Guarantor may
have to transfer or change the venue of any such action or proceeding.
19. MUTUAL WAIVER OF RIGHT TO JURY TRIAL. CONGRESS AND GUARANTOR HEREBY WAIVE
THE RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, LAWSUIT OR PROCEEDING BASED
UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO: (i) THIS GUARANTEE OR ANY
SUPPLEMENT OR AMENDMENT THERETO; OR (ii) ANY OTHER PRESENT OR FUTURE
INSTRUMENT OR AGREEMENT BETWEEN CONGRESS AND GUARANTOR; OR (iii) ANY BREACH,
CONDUCT, ACTS OR OMISSIONS OF CONGRESS OR GUARANTOR OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER
PERSON AFFILIATED WITH OR REPRESENTING CONGRESS OR GUARANTOR; IN EACH OF THE
FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
20. RECEIPT OF COPY. Guarantor acknowledges receipt of a copy of this
Guaranty.
GUARANTOR SIGNATURE: L.A. GEAR, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: /s/ Senior Vp and CFo
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Address: 0000 Xxxxx Xxxx Xxxx.
Santa Monica, California 90405
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