Exhibit 10.13
EXECUTION COPY
GUARANTY
GUARANTY dated as of April 1, 1997, by SLM Trademark Acquisition Corp., a
Delaware corporation (the "Guarantor"), in favor of The Chase Manhattan Bank, a
New York banking corporation, as agent ("Agent") for (i) the Lenders (the
"Lenders") referred to in the Credit Agreement dated as of the date hereof,
among SLM International, Inc., a Delaware corporation, #1 Apparel, Inc., a
Delaware corporation, and Maska U.S., Inc., a Vermont corporation (collectively,
the "Borrowers"), the Agent and the Lenders (as amended, modified or
supplemented from time to time in accordance with its terms, the "Credit
Agreement"; capitalized terms used herein and not otherwise defined herein shall
have the meanings attributed thereto in the Credit Agreement) and (ii) itself as
issuer of the Letters of Credit.
The Agent and the Lenders have agreed to extend Credits to or for the
account of the Borrowers pursuant to, and subject to the terms and conditions
of, the Credit Agreement. The obligation of the Lenders to extend such Credits
under the Credit Agreement is conditioned on the execution and delivery by the
Guarantor of a guaranty in the form hereof of the Obligations (such Obligations
to include, without limitation, the due and punctual payment and performance of
(a) the principal of and interest on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (b) Indebtedness at any time and from time to time under the Letters
of Credit, (c) all other obligations of the Borrowers at any time and from time
to time under the Credit Agreement and the other Loan Documents and (d) all
obligations of the Guarantor at any time and from time to time under the Loan
Documents).
Accordingly, in consideration of the premises and in order to induce the
Agent and the Lenders to make Credits under the Credit Agreement, the Guarantor
hereby agrees as follows:
Section 1. Guaranty. The Guarantor hereby irrevocably and unconditionally
guarantees the punctual payment when due in accordance with the terms of the
Loan Documents, whether at stated maturity, by acceleration or otherwise, and
the punctual performance, of all present and future Obligations of the Borrowers
(the foregoing being herein referred to as the "Guaranteed Obligations").
Section 2. Waiver. The Guarantor hereby absolutely, unconditionally and
irrevocably waives, to the fullest extent permitted by law, (i) promptness,
diligence, notice of acceptance and any other notice with respect to this
Guaranty, (ii) present-
ment, demand of payment, protest, notice of dishonor or nonpayment and any other
notice with respect to the Guaranteed Obligations, (iii) any requirement that
the Agent or Lenders protect, secure, perfect or insure any security interest or
Lien or any property subject thereto or exhaust any right or take any action
against any Borrower or any other person or any Collateral, and (iv) any other
action, event or precondition to the enforcement of this Guaranty or the
performance by the Guarantor of the obligations hereunder.
Section 3. Guaranty Absolute. (a) The Guarantor guarantees that, to the
fullest extent permitted by law, the Guaranteed Obligations will be paid or
performed strictly in accordance with their terms, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Agent or any Lender with respect thereto.
(b) No invalidity, irregularity, voidability, voidness or unenforceability
of the Credit Agreement, the Notes, or any other Loan Document or any other
agreement or instrument relating thereto, or of all or any part of the
Guaranteed Obligations or of any security therefor shall affect, impair or be a
defense to this Guaranty.
(c) This Guaranty is one of payment and performance, not collection, and
the obligations of the Guarantor under this Guaranty are independent of the
Obligations of the Borrowers, and a separate action or actions may be brought
and prosecuted against the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against any Borrower or whether any Borrower is
joined in any such action or actions.
(d) The liability of the Guarantor under this Guaranty shall be absolute
and unconditional irrespective of:
(i) any change in the manner, place or terms of payment or
performance, and/or any change or extension of the time of payment or
performance of, renewal or alteration of, any Obligation, any security
therefor, or any liability incurred directly or indirectly in respect
thereof, or any other amendment or waiver of or any consent to departure
from the Credit Agreement or the Notes or any other Loan Document,
including any increase in the Guaranteed Obligations resulting from the
extension of additional credit to any Borrower or any of its respective
subsidiaries or otherwise;
(ii) any sale, exchange, release, surrender, realization upon any
property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, all or any of the Guaranteed Obligations, and/or any
offset thereagainst, or failure to perfect, or continue the perfection of,
any Lien in any such property, or delay in the perfection of any such
Lien, or any amendment or
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waiver of or consent to departure from any other guaranty for all or any
of the Guaranteed Obligations;
(iii) any exercise or failure to exercise any rights against any
Borrower or others (including the Guarantor);
(iv) any settlement or compromise of any Obligation, any security
therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and any subordination
of the payment of all or any part thereof to the payment of any Obligation
(whether due or not) of any Borrower to creditors of such Borrower other
than the Guarantor;
(v) any manner of application of Collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any Collateral for all or any of the Guaranteed Obligations
or any other assets of any Borrower or any of its subsidiaries;
(vi) any change, restructuring or termination of the existence of
any Borrower or any of its subsidiaries; or
(vii) any other agreements or circumstance of any nature whatsoever
which might otherwise constitute a defense available to, or a discharge
of, this Guaranty and/or obligations of the Guarantor hereunder, or a
defense to, or discharge of, any Borrower or any other person or party
relating to this Guaranty or the obligations of the Guarantor hereunder or
otherwise with respect to the Credits.
(e) The Agent may at any time and from time to time (whether or not after
revocation or termination of this Guaranty) without the consent of, or notice
(except as shall be required by applicable statute and cannot be waived) to, the
Guarantor, and without incurring responsibility to the Guarantor or impairing or
releasing the obligations of the Guarantor hereunder, apply any sums by
whomsoever paid or howsoever realized to any Guaranteed Obligation regardless of
what Guaranteed Obligations remain unpaid.
(f) This Guaranty shall continue to be effective or be reinstated, as the
case may be, if claim is ever made upon the Agent or any Lender for repayment or
recovery of any amount or amounts received by the Agent or such Lender in
payment or on account of any of the Guaranteed Obligations and the Agent or such
Lender repays all or part of said amount by reason of any judgment, decree or
order of any court or administrative body having jurisdiction over the Agent or
such Lender or the respective property of each, or any settlement or compromise
of any such claim effected by the Agent or such Lender with any such claimant
(including the Borrowers),
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then and in such event the Guarantor agrees that any such judgment, decree,
order, settlement or compromise shall be binding upon the Guarantor,
notwithstanding any revocation hereof or the cancellation of any note (including
the Notes) or other instrument evidencing any Obligation, and the Guarantor
shall be and remain liable to the Agent and/or such Lender hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by the Agent or such Lender.
Section 4. Continuing Guaranty. This Guaranty is a continuing one and
shall (i) remain in full force and effect until the indefeasible payment and
satisfaction in full of the Guaranteed Obligations, (ii) be binding upon the
Guarantor, its successors and assigns, and (iii) inure to the benefit of, and be
enforceable by, the Agent and its successors, transferees and assigns. All
obligations to which this Guaranty applies or may apply under the terms hereof
shall be conclusively presumed to have been created in reliance hereon.
Section 5. Terms. (a) All terms defined in the UCC and used herein shall
have the meanings as defined in the UCC, unless the context otherwise requires.
(b) The words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation".
(c) All references herein to Sections and subsections shall be deemed to
be references to Sections and subsections of this Guaranty unless the context
shall otherwise require.
Section 6. Amendments and Modification. No provision hereof shall be
modified, altered or limited except by written instrument expressly referring to
this Guaranty and to such provision, and executed by the party to be charged.
Section 7. Waiver of Subrogation Rights. Unless and until all Guaranteed
Obligations have been indefeasibly paid, the Guarantor hereby waives and
releases any and all rights and claims it may now or hereafter have or acquire
against any of the Borrowers that would constitute it a "creditor" of such
Borrower for purposes of the Federal Bankruptcy Code, including all rights of
subrogation against any Borrower and its property and all rights of
indemnification, contribution and reimbursement from any Borrower and its
property, regardless of whether such rights arise in connection with this
Guaranty, by operation of law, pursuant to contract or otherwise.
Section 8. Remedies Upon Default; Right of Set-Off. (a) Upon the
occurrence and during the continuance of any Event of Default, the Agent may,
subject to and in accordance with the terms of the Credit Agreement, without
notice to or
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demand upon any Borrower or the Guarantor, declare any Guaranteed Obligations
immediately due and payable, and shall be entitled to enforce the obligations of
the Guarantor hereunder.
(b) Upon such declaration by the Agent, the Agent and any Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by the Agent or any Lender to or for the credit or the account of the
Guarantor against any and all of the obligations of the Guarantor now or
hereafter existing under this Guaranty, whether or not the Agent or such Lender
shall have made any demand under this Guaranty and although such obligations may
be contingent and unmatured. The Agent agrees promptly to notify the Guarantor
after any such set-off and application, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of the Agent and Lenders under this Section 9 are in addition to other rights
and remedies (including other rights of set-off) which the Agent and Lenders may
have.
Section 9. Statute of Limitations. Any acknowledgment or new promise,
whether by payment of principal or interest or otherwise and whether by the
Borrower or others (including the Guarantor), with respect to any of the
Guaranteed Obligations shall, if the statute of limitations in favor of the
Guarantor against the Agent or Lenders shall have commenced to run, toll the
running of such statute of limitations and, if the period of such statute of
limitations shall have expired, prevent the operation of such statute of
limitations.
Section 10. Rights and Remedies Not Waived. No act, omission or delay by
the Agent shall constitute a waiver of its rights and remedies hereunder or
otherwise. No single or partial waiver by the Agent of any default hereunder or
right or remedy which it may have shall operate as a waiver of any other
default, right or remedy or of the same default, right or remedy on a future
occasion.
Section 11. Admissibility of Guaranty. The Guarantor agrees that any copy
of this Guaranty signed by the Guarantor and transmitted by telecopier for
delivery to the Agent shall be admissible in evidence as the original itself in
any judicial or administrative proceeding, whether or not the original is in
existence.
Section 12. Notices. All communications and notices hereunder shall be in
writing and shall be given (i) in the case of the Guarantor, in care of Maska
U.S., Inc. at 00 Xxxxx 00, Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000,
Attention: Xxxxxxx Xxxxx, Vice President - Finance, (Telecopy No. (802)
222-5781), with a copy to Xxxxxx, Xxxxx & Xxxxxxx, LLP, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxx X. Xxxxxx, Esq. (Telecopy No. (212)
309-6273), and (ii) in the case of any other
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person, as provided in the Credit Agreement.
SECTION 13. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL; ETC. (a) ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS GUARANTY,
THE GUARANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS. THE GUARANTOR HEREBY IRREVOCABLY WAIVES, IN CONNECTION WITH ANY SUCH
ACTION OR PROCEEDING, (i) EXCEPT AS PROHIBITED BY LAW, TRIAL BY JURY, (ii) TO
THE EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS AND (iii) THE RIGHT TO
INTERPOSE ANY SET-OFF, COUNTERCLAIM OR CROSS-CLAIM (UNLESS SUCH SET-OFF,
COUNTERCLAIM OR CROSS-CLAIM COULD NOT, BY REASON OF ANY APPLICABLE FEDERAL OR
STATE PROCEDURAL LAWS, BE INTERPOSED, PLEADED OR ALLEGED IN ANY OTHER ACTION).
(b) The Guarantor irrevocably consents to the service of process of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by certified mail, postage prepaid, to the Guarantor at its
address determined pursuant to Section 14 hereof.
(c) Nothing herein shall affect the right of the Agent to serve process in
any other manner permitted by law or to commence legal proceedings or otherwise
proceed against the Guarantor in any other jurisdiction.
(d) The Guarantor hereby waives presentment, notice of dishonor and
protests of all instruments included in or evidencing any of the Guaranteed
Obligations, and any and all other notices and demands whatsoever (except as
expressly provided herein).
SECTION 14. GOVERNING LAW. THIS GUARANTY AND THE GUARANTEED OBLIGATIONS
SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED IN SUCH STATE, WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
Section 15. Captions; Separability. (a) The captions of the Sections
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and subsections of this Guaranty have been inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Guaranty.
(b) If any term of this Guaranty shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby.
Section 16. Acknowledgment of Receipt. The Guarantor acknowledges receipt
of a copy of this Guaranty and each of the Loan Documents.
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IN WITNESS WHEREOF, the Guarantor has duly executed or caused this
Guaranty to be duly executed in the State of New York as of the date first above
set forth.
SLM TRADEMARK ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President, Finance
