EXHIBIT 10.41
CONTINUING GUARANTY
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THIS CONTINUING GUARANTY ("Guaranty"), dated as of December 15, 1997,
is executed and delivered by GLOBAL SPORTS, INC., a Delaware corporation
("Guarantor"), formerly known as Ryka, Inc., in favor of FOOTHILL CAPITAL
CORPORATION, a California corporation ("Foothill"), with reference to the
following:
RECITALS
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A. Each of KPR Sports International, Inc., a Pennsylvania
corporation ("KPR"), as survivor of the merger of KPR Acquisitions, Inc., a
Pennsylvania corporation, with and into KPR, and Ryka, Inc., a Pennsylvania
corporation ("Ryka", and together with KPR, collectively "Borrowers" and each
individually a "Borrower") and Foothill are, contemporaneously herewith,
entering into certain Loan Documents (as defined below); and
B. In order to induce Foothill to extend financial accommodations to
Borrowers pursuant to the Loan Documents, and in consideration thereof, and in
consideration of any loans or other financial accommodations heretofore or
hereafter extended by Foothill to Borrowers, whether pursuant to the Loan
Documents or otherwise, Guarantor has agreed to guarantee the Guaranteed
Obligations (defined below).
NOW, THEREFORE, in consideration of the foregoing, Guarantor hereby
agrees, in favor of Foothill, as follows:
1. Definitions and Construction.
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(a) Definitions. The following terms, as used in this Guaranty,
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shall have the following meanings:
"Bankruptcy Code" means The Bankruptcy Reform Act of 1978
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(11 U.S.C. Sections 101-1330), as amended or supplemented from time to time, and
any successor statute, and any and all rules issued or promulgated in connection
therewith.
"Guaranteed Obligations" means any and all obligations,
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indebtedness, or liabilities of any kind or character owed by either or both of
Borrowers to Foothill, whether arising under the Loan Documents or otherwise,
including all such obligations, indebtedness, or liabilities, whether for
principal, interest (including any interest which, but for the application of
the provisions of the Bankruptcy Code, would have accrued on such amounts),
premium, reimbursement obligations, fees, costs, expenses (including, attorneys'
fees), or indemnity obligations, whether heretofore, now, or hereafter made,
incurred, or created, whether voluntarily or involuntarily made, incurred, or
created, whether secured or unsecured (and if secured, regardless of the nature
or extent of the security), whether absolute or contingent, liquidated or
unliquidated, determined or indeterminate, whether Borrowers are liable
individually or jointly with others, and whether recovery is or hereafter
becomes barred by any statute of limitations or otherwise becomes unenforceable
for any reason whatsoever, including any act or failure to act by Foothill.
"Loan Documents" shall mean that certain Amended and
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Restated Loan and Security Agreement, of even date herewith, between Foothill
and Borrowers in connection therewith, and those documents, instruments, and
agreements which either now or in the future exist among either or both of
Borrowers, Guarantor, or any affiliate of either Borrower, on the one hand, and
Foothill, on the other hand, and any amendments, modifications, or supplements
to any of the foregoing.
(b) Construction. Unless the context of this Guaranty
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clearly requires otherwise, references to the plural include the singular,
references to the singular include the plural, and the term "including" is not
limiting. The words "hereof," "herein," "hereby," "hereunder," and other similar
terms refer to this Guaranty as a whole and not to any particular provision of
this Guaranty. Any reference herein to any of the Loan Documents includes any
and all alterations, amendments, extensions, modifications, renewals, or
supplements thereto or thereof, as applicable. Neither this Guaranty nor any
uncertainty or ambiguity herein shall be construed or resolved against Foothill
or Guarantor, whether under any rule of construction or otherwise. On the
contrary, this Guaranty has been reviewed by Guarantor, Foothill, and their
respective counsel, and shall be construed and interpreted according to the
ordinary meaning of the words used so as to fairly accomplish the purposes and
intentions of Foothill and Guarantor.
2. Guaranteed Obligations. Guarantor hereby irrevocably and
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unconditionally guarantees to Foothill, as and for its own debt, until final and
indefeasible payment thereof has been made, (a) payment of the Guaranteed
Obligations, in each case when and as the same shall become due and payable,
whether at maturity, pursuant to a mandatory prepayment requirement, by
acceleration, or otherwise; it being the intent of Guarantor that the guaranty
set forth herein shall be a guaranty of payment and not a guaranty of
collection; and (b) the punctual and faithful performance, keeping, observance,
and fulfillment by Borrowers of all of the agreements, conditions, covenants,
and obligations of Borrowers contained in the Loan Documents.
3. Continuing Guaranty. This Guaranty includes Guaranteed
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Obligations arising under successive transactions continuing, compromising,
extending, increasing, modifying, releasing, or renewing the Guaranteed
Obligations, changing the interest rate, payment terms, or other terms and
conditions thereof, or creating new or additional Guaranteed Obligations after
prior Guaranteed Obligations have been satisfied in whole or in part. To the
maximum extent permitted by law, Guarantor hereby waives any right to revoke
this Guaranty as to future indebtedness. If such a revocation is effective
notwithstanding the foregoing waiver, Guarantor acknowledges and agrees that (a)
no such revocation shall be effective until written notice thereof has been
received by Foothill, (b) no such revocation shall apply to any Guaranteed
Obligations in existence on such date (including, any subsequent continuation,
extension, or renewal thereof, or change in the interest rate, payment terms, or
other terms and conditions thereof), (c) no such revocation shall apply to any
Guaranteed Obligations made or created after such date to the extent made or
created pursuant to a legally binding commitment of Foothill in existence on the
date of such revocation, (d) no payment by Guarantor, Borrowers, or from any
other source, prior to the date of such revocation shall reduce the maximum
obligation of Guarantor hereunder, and (e) any payment by Borrowers or from any
source other than Guarantor, subsequent to the date of such revocation, shall
first be applied to that portion of the Guaranteed Obligations as to which the
revocation is effective and which are not,
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therefore, guaranteed hereunder, and to the extent so applied shall not reduce
the maximum obligation of Guarantor hereunder.
4. Performance Under This Guaranty. In the event that either
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Borrower fails to make any payment of any Guaranteed Obligations on or before
the due date thereof, or if either Borrower shall fail to perform, keep,
observe, or fulfill any other obligation referred to in clause (b) of Section 2
hereof in the manner provided in the Loan Documents, Guarantor immediately shall
cause such payment to be made or each of such obligations to be performed, kept,
observed, or fulfilled.
5. Primary Obligations. This Guaranty is a primary and original
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obligation of Guarantor, is not merely the creation of a surety relationship,
and is an absolute, unconditional, and continuing guaranty of payment and
performance which shall remain in full force and effect without respect to
future changes in conditions, including any change of law or any invalidity or
irregularity with respect to the Loan Documents. Guarantor agrees that it is
directly, jointly and severally with any other guarantor of the Guaranteed
Obligations, liable to Foothill, that the obligations of Guarantor hereunder are
independent of the obligations of Borrowers or any other guarantor, and that a
separate action may be brought against Guarantor whether such action is brought
against Borrowers or any other guarantor or whether Borrowers or any such other
guarantor is joined in such action. Guarantor agrees that its liability
hereunder shall be immediate and shall not be contingent upon the exercise or
enforcement by Foothill of whatever remedies it may have against Borrowers or
any other guarantor, or the enforcement of any lien or realization upon any
security Foothill may at any time possess. Guarantor agrees that any release
which may be given by Foothill to either or both of Borrowers or any other
guarantor shall not release Guarantor. Guarantor consents and agrees that
Foothill shall be under no obligation to marshal any assets of Borrowers or any
other guarantor in favor of Guarantor, or against or in payment of any or all of
the Guaranteed Obligations.
6. Waivers.
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(a) To the maximum extent permitted by law, Guarantor hereby
waives: (1) notice of acceptance hereof; (2) notice of any loans or other
financial accommodations made or extended under the Loan Documents or the
creation or existence of any Guaranteed Obligations; (3) notice of the amount of
the Guaranteed Obligations, subject, however, to Guarantor's right to make
inquiry of Foothill to ascertain the amount of the Guaranteed Obligations at any
reasonable time; (4) notice of any adverse change in the financial condition of
Borrowers or of any other fact that might increase Guarantor's risk hereunder;
(5) notice of presentment for payment, demand, protest, and notice thereof as to
any promissory notes or other instruments among the Loan Documents; (6) notice
of any event of default under the Loan Documents; and (7) all other notices
(except if such notice is specifically required to be given to Guarantor
hereunder or under any Loan Document to which Guarantor is a party) and demands
to which Guarantor might otherwise be entitled.
(b) To the maximum extent permitted by law, Guarantor hereby
waives the right by statute or otherwise to require Foothill to institute suit
against Borrowers or to exhaust any rights and remedies which Foothill has or
may have against Borrowers. In this regard, Guarantor agrees that it is bound to
the payment of all Guaranteed Obligations, whether now existing
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or hereafter accruing, as fully as if such Guaranteed Obligations were directly
owing to Foothill by Guarantor. Guarantor further waives any defense arising by
reason of any disability or other defense (other than the defense that the
Guaranteed Obligations shall have been fully and finally performed and
indefeasibly paid) of Borrowers or by reason of the cessation from any cause
whatsoever of the liability of Borrowers in respect thereof.
(c) To the maximum extent permitted by law, Guarantor hereby
waives: (1) any rights to assert against Foothill any defense (legal or
equitable), set-off, counterclaim, or claim which Guarantor may now or at any
time hereafter have against Borrowers or any other party liable to Foothill; (2)
any defense, set-off, counterclaim, or claim, of any kind or nature, arising
directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of the Guaranteed Obligations or any
security therefor; (3) any defense based upon or arising out of an election of
remedies by Foothill; (4) the benefit of any statute of limitations affecting
Guarantor's liability hereunder or the enforcement thereof, and any act which
shall defer or delay the operation of any statute of limitations applicable to
the Guaranteed Obligations shall similarly operate to defer or delay the
operation of such statute of limitations applicable to Guarantor's liability
hereunder; (5) all rights and defenses arising out of an election of remedies by
Foothill, even though that election of remedies, such as nonjudicial foreclosure
with respect to security for the Guaranteed Obligations, has destroyed the
Guarantors' rights of subrogation and reimbursement against Borrowers; and (6)
all rights and defenses that Guarantor may have because the Guaranteed
Obligations are secured by real property or an estate for years. As to clause
"(6)" of this paragraph 6(c), this waiver means, among other things: (i)
Foothill may collect from Guarantor without first foreclosing on any real or
personal property collateral pledged by Borrowers; and (ii) if Foothill
forecloses on any real property (or an estate for years) pledged by Borrowers:
(A) the amount of the Guaranteed Obligations 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 (B) Foothill may collect from
Guarantor even if Foothill, by foreclosing on the real property collateral, has
destroyed any right Guarantor may have to collect from Borrowers. The waiver in
clause "(6)" of this paragraph 6(c) is an unconditional and irrevocable waiver
of any rights and defenses that Guarantor may have because Borrowers' debts are
secured by real property or an estate for years.
(d) To the maximum extent permitted by law, Guarantor hereby
waives any right of subrogation or reimbursement Guarantor has or may have as
against Borrowers with respect to the Guaranteed Obligations. In addition,
Guarantor hereby waives any right to proceed against Borrowers, now or
hereafter, for contribution, indemnity, reimbursement, and any other suretyship
rights and claims, whether direct or indirect, liquidated or contingent, whether
arising under express or implied contract or by operation of law, which
Guarantor may now have or hereafter have as against Borrowers with respect to
the Guaranteed Obligations. Guarantor also hereby waives any rights to recourse
to or with respect to any asset of Borrowers. Guarantor agrees that in light of
the immediately foregoing waivers, the execution of this Guaranty shall not be
deemed to make Guarantor a "creditor" of Borrowers, and that for purposes of
Sections 547 and 550 of the Bankruptcy Code Guarantor shall not be deemed a
"creditor" of Borrowers.
7. Releases. Guarantor consents and agrees that, without notice to
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or by
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Guarantor and without affecting or impairing the obligations of Guarantor
hereunder, Foothill may, by action or inaction:
(a) compromise, settle, extend the duration or the time for the
payment of, or discharge the performance of, or may refuse to or otherwise not
enforce the Loan Documents;
(b) release all or any one or more parties to any one or more of
the Loan Documents or grant other indulgences to Borrowers in respect thereof;
(c) amend or modify in any manner and at any time (or from time
to time) any of the Loan Documents;
(d) increase or decrease at any time (or from time to time) the
amount of the Guaranteed Obligations, the amount or rate of interest applicable
thereto, and/or the amount of fees or other charges imposed in connection
therewith; or
(e) release or substitute any other guarantor, if any, of the
Guaranteed Obligations, or enforce, exchange, release, or waive any security for
the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations,
or any portion thereof.
8. No Election. Foothill shall have the right to seek recourse
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against Guarantor to the fullest extent provided for herein, and no election by
Foothill to proceed in one form of action or proceeding, or against any party,
or on any obligation, shall constitute a waiver of Foothill's right to proceed
in any other form of action or proceeding or against other parties unless
Foothill has expressly waived such right in writing. Specifically, but without
limiting the generality of the foregoing, no action or proceeding by Foothill
under any document or instrument evidencing the Guaranteed Obligations shall
serve to diminish the liability of Guarantor under this Guaranty except to the
extent that Foothill finally and unconditionally shall have realized
indefeasible payment by such action or proceeding.
9. Indefeasible Payment. The Guaranteed Obligations shall not be
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considered indefeasibly paid for purposes of this Guaranty unless and until all
payments to Foothill are no longer subject to any right on the part of any
person, including Borrowers, Borrowers as debtors in possession, or any trustee
(whether appointed under the Bankruptcy Code or otherwise) of Borrowers' assets
to invalidate or set aside such payments or to seek to recoup the amount of such
payments or any portion thereof, or to declare same to be fraudulent or
preferential. Until such full and final performance and indefeasible payment of
the Guaranteed Obligations whether by Guarantor or Borrowers, Foothill shall
have no obligation whatsoever to transfer or assign its interest in the Loan
Documents to Guarantor. In the event that, for any reason, any portion of such
payments to Foothill is set aside or restored, whether voluntarily or
involuntarily, after the making thereof, then the obligation intended to be
satisfied thereby shall be revived and continued in full force and effect as if
said payment or payments had not been made, and Guarantor shall be liable for
the full amount Foothill is required to repay plus any and all costs and
expenses (including attorneys' fees) paid by Foothill in connection therewith.
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10. Financial Condition of Borrowers. Guarantor represents and
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warrants to Foothill that Guarantor is currently informed of the financial
condition of Borrowers and of all other circumstances which a diligent inquiry
would reveal and which bear upon the risk of nonpayment of the Guaranteed
Obligations. Guarantor further represents and warrants to Foothill that
Guarantor has read and understands the terms and conditions of the Loan
Documents. Guarantor hereby covenants that Guarantor will continue to keep
informed of Borrowers' financial condition, the financial condition of other
guarantors, if any, and of all other circumstances which bear upon the risk of
nonpayment or nonperformance of the Guaranteed Obligations.
11. Subordination. Guarantor hereby agrees that any and all present
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and future indebtedness of Borrowers owing to Guarantor is postponed in favor of
and subordinated to payment, in full, in cash, of the Guaranteed Obligations.
In this regard, no payment of any kind whatsoever shall be made with respect to
such indebtedness until the Guaranteed Obligations have been indefeasibly paid
in full.
12. Payments; Application. All payments to be made hereunder by
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Guarantor shall be made in lawful money of the United States of America at the
time of payment, shall be made in immediately available funds, and shall be made
without deduction (whether for taxes or otherwise) or offset. All payments made
by Guarantor hereunder shall be applied as follows: first, to all costs and
expenses (including attorneys' fees) incurred by Foothill in enforcing this
Guaranty or in collecting the Guaranteed Obligations; second, to all accrued and
unpaid interest, premium, if any, and fees owing to Foothill constituting
Guaranteed Obligations; and third, to the balance of the Guaranteed Obligations.
13. Attorneys' Fees and Costs. Guarantor agrees to pay, on demand,
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all reasonable attorneys' fees and all other costs and expenses which may be
incurred by Foothill in the enforcement of this Guaranty or in any way arising
out of, or consequential to the protection, assertion, or enforcement of the
Guaranteed Obligations (or any security therefor), whether or not suit is
brought.
14. Indemnification. Guarantor agrees to indemnify Foothill and hold
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Foothill harmless against all obligations, demands, or liabilities asserted by
any party and against all losses in any way suffered, incurred, or paid by
Foothill as a result of or in any way arising out of, following, or
consequential to Foothill's transactions with Borrowers, unless it is determined
by a final and non-appealable judgment or court order binding on Foothill, that
the losses were the result of acts or omissions constituting gross negligence or
willful misconduct of Foothill.
15. Notices. All notices or demands by Guarantor or Foothill to the
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other relating to this Guaranty shall be in writing and either personally served
or sent by registered or certified mail, postage prepaid, return receipt
requested, or by prepaid telex, telefacsimile, or telegram, and shall be deemed
to be given for purposes of this Guaranty on the day that such writing is
received by the party to whom it is sent. Unless otherwise specified in a
notice sent or delivered in accordance with the provisions of this section, such
writing shall be sent, if to Guarantor, at Guarantor's address set forth on the
signature page hereof, and if to Foothill, then as follows:
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Foothill Capital Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Business/Financial Manager
16. Cumulative Remedies. No remedy under this Guaranty or under any
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Loan Document is intended to be exclusive of any other remedy, but each and
every remedy shall be cumulative and in addition to any and every other remedy
given hereunder or under any Loan Document, and those provided by law or in
equity. No delay or omission by Foothill to exercise any right under this
Guaranty shall impair any such right nor be construed to be a waiver thereof.
No failure on the part of Foothill to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right.
17. Books and Records. Guarantor agrees that Foothill's books and
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records showing the account between Foothill and Borrower shall be admissible in
any action or proceeding and shall be binding upon Guarantor for the purpose of
establishing the items therein set forth and shall constitute prima facie proof
thereof.
18. Severability of Provisions. Any provision of this Guaranty which
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is prohibited or unenforceable under applicable law, shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
19. Entire Agreement; Amendments. This Guaranty constitutes the
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entire agreement between Guarantor and Foothill pertaining to the subject matter
contained herein. This Guaranty may not be altered, amended, or modified, nor
may any provision hereof be waived or noncompliance therewith consented to,
except by means of a writing executed by both Guarantor and Foothill. Any such
alteration, amendment, modification, waiver, or consent shall be effective only
to the extent specified therein and for the specific purpose for which given.
No course of dealing and no delay or waiver of any right or default under this
Guaranty shall be deemed a waiver of any other, similar or dissimilar right or
default or otherwise prejudice the rights and remedies hereunder.
20. Successors and Assigns. This Guaranty shall be binding upon
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Guarantor's heirs, executors, administrators, representatives, successors, and
assigns and shall inure to the benefit of the successors and assigns of
Foothill; provided, however, Guarantor shall not assign this Guaranty or
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delegate any of its duties hereunder without Foothill's prior written consent.
Any assignment without the consent of Foothill shall be absolutely void. In the
event of any assignment or other transfer of rights by Foothill, the rights and
benefits herein conferred upon Foothill shall automatically extend to and be
vested in such assignee or other transferee.
21. Choice of Law and Venue. THE VALIDITY OF THIS GUARANTY, ITS
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CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT, AND THE RIGHTS OF GUARANTOR AND
FOOTHILL, SHALL BE DETERMINED UNDER, GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, GUARANTOR HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS GUARANTY SHALL BE TRIED AND DETERMINED ONLY IN THE STATE
AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, OR, AT
THE SOLE OPTION OF FOOTHILL, IN ANY OTHER COURT IN WHICH FOOTHILL SHALL INITIATE
LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER
THE MATTER IN CONTROVERSY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GUARANTOR
HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO ASSERT THE DOCTRINE OF FORUM
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NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN
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ACCORDANCE WITH THIS SECTION.
22. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
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GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY ACTION,
CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO
THIS GUARANTY, OR IN ANY WAY CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
DEALINGS OF GUARANTOR AND FOOTHILL WITH RESPECT TO THIS GUARANTY, OR THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, GUARANTOR HEREBY AGREES THAT ANY SUCH ACTION, CAUSE OF
ACTION, CLAIM, DEMAND, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A
JURY AND THAT FOOTHILL MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY
COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF GUARANTOR TO THE
WAIVER OF ITS RIGHT TO TRIAL BY JURY.
23. Existing Obligations to Foothill. Nothing contained in this
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Guaranty shall limit, impair or affect the Obligations of Guarantor to Foothill
(the "Existing Obligations") under, and as defined in, the Existing Loan
Agreement (as defined in the Loan Agreement). Guarantor acknowledges, confirms
and agrees that the Existing Obligations (a) have been assumed by Ryka pursuant
to both the Reorganization Plan (as defined in the Loan Agreement) and the Loan
Agreement and (b) constitute a part of the Guaranteed Obligations due and owing
by Guarantor to Foothill.
IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty
as of the date set forth in the first paragraph hereof.
GLOBAL SPORTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President
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Guarantor's
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 15th day of December, 1997, before me personally came ▇▇▇▇▇▇▇
▇▇▇▇▇, to me known, who stated that he is the President of GLOBAL SPORTS, INC.,
the corporation described in and which executed the foregoing instruments; and
that he signed his name thereto by order of the Board of Directors of said
corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
_________________________
Notary Public
▇▇▇▇▇▇ ▇▇▇▇
Notary Public of State of New York
No. 01H15061909
Qualified in Queens County
Commission Expires June 17, 1998
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