EXHIBIT 10.3
GUARANTY
from
REEBOK INTERNATIONAL LTD.
Dated as of March 27, 1998
GUARANTY
THIS GUARANTY dated as of March 27, 1998, is made by REEBOK
INTERNATIONAL LTD. (the Company or the Guarantor ) in favor of
the Beneficiaries (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, contemporaneously herewith, the Company, as Lessee
and as Construction Agent, Credit Suisse Leasing 92A, L.P., as
Lessor ("Lessor"), the Banks identified therein, as Lenders
("Lenders"), and Credit Suisse First Boston, as Administrative
Agent, ("Administrative Agent") have entered into that certain
Participation Agreement, dated as of March 27, 1998, and Reebok
International Ltd., as a Lessee, and Lessor have entered into
that certain Lease Agreement, dated as of March 27, 1998. The
Participation Agreement and the Lease Agreement, as they each may
be modified, amended or restated from time to time as and to the
extent permitted thereby, are hereinafter referred to as the
"Participation Agreement" and "Lease" respectively. Unless
otherwise defined herein or the context hereof otherwise
requires, terms which are defined or defined by reference in the
Participation Agreement or Lease shall have the same meanings
when used herein as such terms have therein; and
WHEREAS, Lessor has entered into a Loan Agreement dated as
of even date herewith (as amended or otherwise modified from time
to time, the "Loan Agreement") by and among Lessor, Lenders and
Administrative Agent, pursuant to which the Lenders have agreed
to make loans to Lessor, as evidenced by those certain non-
recourse promissory notes (the "Notes") from Lessor, and the
Notes are secured by those certain Mortgage (the "Mortgage") made
by Lessor to Administrative Agent, as agent for the Lenders and
that certain Assignment of Lease from Lessor to Administrative
Agent, as agent for the Lenders (the "Assignment of Lease").
WHEREAS, it is condition to the effectiveness of the
Participation Agreement that the Company execute and deliver this
Guaranty; and
WHEREAS, it is in the best interests of Guarantor that the
Overall Transaction and the Documentation Date occur; and
WHEREAS, this Guaranty, and the execution, delivery and
performance hereof, have been duly authorized by all necessary
corporate action of Guarantor;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Guarantor,
Guarantor hereby agrees as follows:
SECTION 1. Guarantee. Guarantor hereby irrevocably and
unconditionally guarantees to the Beneficiaries and agrees to act
as surety to the Beneficiaries for (a) the full and prompt
payment when due, whether by acceleration or otherwise, and at
all times thereafter, and (b) the full and prompt performance of
all of the Liabilities (as hereinafter defined), including
Interest and Yield on any such Liabilities, whether accruing
before or after any bankruptcy or insolvency case or proceeding
involving Lessee or any other Person, and, if Interest or Yield
on any portion of such obligations ceases to accrue by operation
of law by reason of the commencement of such case or proceeding,
including such Interest and Yield as would have accrued on any
such portion of such obligations if such case or proceeding had
not commenced, and further agree to pay all expenses (including
attorneys fees and legal expenses) paid or incurred by Lessor,
the Administrative Agent or any of the Lenders (each a
"Beneficiary") in endeavoring to collect the Liabilities, or any
part thereof, and in enforcing this Guaranty. The term
"Liabilities", as used herein, shall mean all of the following,
in each case howsoever created, arising or evidenced, whether
direct or indirect, joint or several, absolute or contingent, or
now or hereafter existing, or due or to become due: (i) all
principal of the Notes and any Interest thereon; (ii) all other
sums at any time due and owing, and required to be paid, to a
Beneficiary under the terms of the Loan Agreement and any other
Operative Document and (iii) the unpaid Investor Balance of
Lessor and any Yield thereon (in each case whether or not Lessee
or any other Person shall be released or relieved from any or all
liability or obligation relating thereto); provided, however,
that if the Lessee duly and timely exercises and consummates the
Remarketing Option pursuant to the Lease (and does not become
obligated to purchase the Property pursuant to Section 6.1 of the
Lease), Liabilities shall not include that portion of the
outstanding principal amount of the Notes equal to the excess of
the then outstanding Lease Balance over the Guaranteed Residual
Amount.
In any action or proceeding involving any state corporate
law, or any state or federal bankruptcy, insolvency,
reorganization or any other law affecting the rights of creditors
generally, if the obligations of Guarantor under this Guaranty
would otherwise be held or determined by a final and
non-appealable order of a court of competent jurisdiction to be
void, invalid or unenforceable, or subordinated to the claims of
any other creditors, on account of the amount of its liability
under this Guaranty, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall,
without any further action by Guarantor or any other Person, be
automatically limited and reduced to the highest amount which is
valid and enforceable as determined in such action or proceeding
pursuant to such final and non-appealable order.
In an Event of Default, any Beneficiary may appropriate and
apply toward the payment of Liabilities, in such order of
application as the Administrative Agent may elect any and all
balances, credits, deposits, accounts or moneys of or in the name
of Guarantor now or hereafter, for any reason or purpose
whatsoever, in the possession or control of, or in transit to
Lessor or any Beneficiary or any agent or bailee for Lessor or
any Beneficiary. Each Beneficiary shall provide prompt written
notice to the Administrative Agent of the exercise by such
Beneficiary of its rights under this paragraph, which notice
shall set forth in reasonable detail the amount of such
application and shall remit such amount to Administrative Agent
or as Administrative Agent may direct.
This Agreement shall constitute an agreement of suretyship
as well as of guaranty and shall constitute an absolute and
unconditional guaranty of payment and performance (and not of
collection) and an absolute and unconditional undertaking by
Guarantor with respect to the payment and performance of the
Liabilities. This Guaranty shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of
Guarantor) and shall not be discharged until such time as all the
Liabilities shall be indefeasibly paid in full in cash, all the
agreements of Lessee under the Operative Documents shall have
been duly performed and the Commitments have been terminated.
The liability of Guarantor hereunder shall be direct and may be
enforced without the Beneficiaries being required to resort to
any other right, remedy or security.
Administrative Agent on behalf of itself and the other
Beneficiaries, may, from time to time at its discretion and
without notice to Guarantor, but subject to the provisions of the
Participation Agreement, take or cause any of the other
Beneficiaries to take, any or all of the following actions:
(a) retain or obtain a lien upon or a security interest in any
property to secure any of the Liabilities or any obligation
hereunder; (b) retain or obtain the primary or secondary
obligation of any obligor or obligors, in addition to Guarantor,
with respect to any of the Liabilities; (c) extend or renew for
one or more periods (regardless of whether longer than the
original period), alter or exchange any of the Liabilities, or
release or compromise any obligation of Guarantor hereunder or
any obligation of any nature of any other obligor with respect to
any of the Liabilities; (d) release or fail to perfect its lien
upon or security interest in, or impair, surrender, release or
permit any substitution or exchange for, all or any part of any
property securing any of the Liabilities or any obligation
hereunder, or extend or renew for one or more periods (regardless
of whether longer than the original period) or release,
compromise, alter or exchange any obligations of any nature of
any obligor with respect to any such property; and (e) resort to
Guarantor for payment of any of the Liabilities, regardless of
whether Administrative Agent or any other Beneficiary shall have
resorted to any other Person, any property securing any of the
Liabilities or any obligation hereunder or shall have proceeded
against any other obligor primarily or secondarily obligated with
respect to any of the Liabilities (all of the actions referred to
in this paragraph being hereby expressly waived by Guarantor).
SECTION 2. Guarantor's Obligations Unconditional.
Guarantor's obligations hereunder are independent in respect of
any other Person, and, subject to Section 7.5 of the Loan
Agreement, each Beneficiary may enforce any of its rights
hereunder independently of any other right or remedy that it may
at any time hold with respect to the Liabilities or any security
or other guaranty therefor; provided that no double recovery of
the same amount shall be permitted. Such obligations shall be
absolute and unconditional, shall not be subject to any
counterclaim, setoff, deduction, diminution, abatement,
recoupment, suspension, deferment, reduction or defense (other
than full and strict compliance by Guarantor with their
obligations hereunder), whether based upon any claim that Lessor,
Lessee, Administrative Agent, any Beneficiary or any other Person
may have against any Beneficiary or any other Person or
otherwise, and shall remain in full force and effect without
regard to, and shall not be released, discharged or in any way
affected by, any circumstance or condition whatsoever (whether or
not Guarantor or any other Person shall have any knowledge or
notice thereof) including:
A. any amendment, modification, addition, deletion,
supplement or renewal to or of or other change in the
Liabilities or any Operative Document or any of the
agreements referred to in any thereof, or any other
instrument or agreement applicable to any Operative
Document or any of the parties to such agreements, or
to the Property, or any assignment, mortgage or
transfer thereof or of any interest therein, or any
furnishing or acceptance of additional security for,
guaranty of or right of offset with respect to, any of
the Liabilities; or the failure of any security or the
failure of any Beneficiary to perfect or insure any
interest in any collateral;
B. any failure, omission or delay on the part of Lessor or
any Beneficiary to conform or comply with any term of
any instrument or agreement referred to in clause
A above;
C. any waiver, consent, extension, indulgence, compromise,
release or other action or inaction under or in respect
of any instrument, agreement, guaranty, right of offset
or security referred to in clause A above or any
obligation or liability of Lessor or any Beneficiary,
or any exercise or non-exercise by any Beneficiary of
any right, remedy, power or privilege under or in
respect of any such instrument, agreement, guaranty,
right of offset or security or any such obligation or
liability;
D. any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or
similar proceeding with respect to Lessor or any
Beneficiary or any other Person or any of their
respective properties or creditors, or any action taken
by any trustee, receiver or court in any such
proceeding;
E. any limitation on the liability or obligations of any
Person under any Operative Document, the Liabilities,
any collateral security for the Liabilities, any other
guaranty of the Liabilities or any discharge,
termination, cancellation, frustration, irregularity,
invalidity or unenforceability, in whole or in part, of
any of the foregoing or any other agreement,
instrument, guaranty or security referred to in
clause A above or any term of any thereof;
F. any defect in the title, compliance with
specifications, condition, design, operation or fitness
for use of, or any damage to or loss or destruction of,
or any interruption or cessation in the use of the
Property by Lessee or any other Person for any reason
whatsoever (including any governmental prohibition or
restriction, condemnation, requisition, seizure or any
other act on the part of any governmental or military
authority, or any act of God or of the public enemy)
regardless of the duration thereof (even though such
duration would otherwise constitute a frustration of a
lease), whether or not resulting from accident and
whether or not without fault on the part of any Lessee
or any other Person;
G. any merger or consolidation of Lessor, Lessee or
Guarantor into or with any other Person, or any sale,
lease or transfer of any of the assets of Lessor,
Lessee or Guarantor to any other Person;
H. any change in the ownership of any shares of capital
stock of Lessor, Lessee or Guarantor or any corporate
change in Lessor, Lessee or Guarantor;
I. any loan to or other transaction between the
Beneficiaries, or any of them, and Lessee or Lessor;
J. any other occurrence or circumstance whatsoever,
whether similar or dissimilar to the foregoing, and any
other circumstance that might otherwise constitute a
legal or equitable defense or discharge of the
liabilities of a guarantor or surety or that might
otherwise limit recourse against Guarantor.
The obligations of Guarantor set forth herein constitute the
full recourse obligations of Guarantor enforceable against it to
the full extent of all of its assets and properties,
notwithstanding any provision in the Lease or any other Operative
Document or any other document or agreement to the contrary.
Guarantor waives any and all notice of the creation,
renewal, extension or accrual of any of the Liabilities and
notice of or proof of reliance by any Beneficiary upon this
Guaranty or acceptance of this Guaranty, and the Liabilities, and
any of them, shall conclusively be deemed to have been created,
contracted or incurred in reliance upon this Guaranty. Guarantor
unconditionally waives, to the extent permitted by law:
(a) acceptance of this Guaranty and proof of reliance by any
Beneficiary hereon; (b) notice of any of the matters referred to
in clauses A through J above, or any right to consent or assent
to any thereof; (c) all notices that may be required by statute,
rule of law or otherwise, now or hereafter in effect, to preserve
intact any rights against Guarantor, including any demand,
presentment, protest, proof or notice of nonpayment under any
Operative Document, and notice of default or any failure on the
part of Lessor to perform and comply with any covenant,
agreement, term or condition of any Operative Document; (d) any
right to the enforcement, assertion or exercise against Lessor of
any right, power, privilege or remedy conferred in any Operative
Document or otherwise; (e) any requirement of diligence on the
part of any Person; (f) any requirement of any Beneficiary to
take any action whatsoever, to exhaust any remedies or to
mitigate the damages resulting from a default by any Person under
any Operative Document; (g) any notice of any sale, transfer or
other disposition by any Person of any right under, title to or
interest in any Operative Document or the Property; and (h) any
other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge, release or defense of a guarantor
or surety, or that might otherwise limit recourse against
Guarantor.
Guarantor agrees that this Guaranty shall be automatically
reinstated if and to the extent that for any reason any payment
by or on behalf of itself or Lessor is rescinded or must be
otherwise restored by any Beneficiary whether as a result of any
proceedings in bankruptcy or reorganization or otherwise.
Guarantor further agrees that, without limiting the
generality of this Guaranty, if a Lessee Event of Default shall
have occurred and be continuing and any Beneficiary is prevented
by Applicable Law from exercising its remedies under the
Operative Documents, such Beneficiary shall be entitled to
receive hereunder from Guarantor, upon demand therefor, the sums
which would have otherwise been due from Lessee had such remedies
been exercised.
Section 3. Reasonableness and Effect of Waivers. Guarantor
warrants and agrees that each of the waivers set forth in this
Guaranty is made with full knowledge of its significance and
consequences and that, under the circumstances, the waivers are
reasonable and not contrary to public policy or law. If any of
such waivers are determined to be contrary to any applicable law
or public policy, such waivers shall be effective only to the
maximum extent permitted by law.
Section 4. Transfers by Beneficiaries. Each Beneficiary
may, from time to time, whether before or after any
discontinuance of this Guaranty, subject to the requirements of
the Participation Agreement, at its sole discretion and without
notice to or consent of Guarantor, assign or transfer any or all
of its portion of the Liabilities or any interest therein; and,
notwithstanding any such assignment or transfer or any subsequent
assignment or transfer thereof, such Liabilities shall be and
remain Liabilities for the purposes of this Guaranty, and each
and every immediate and successive assignee or transferee of any
of the Liabilities or of any interest therein shall, to the
extent of such assignee's or transferee's interest in the
Liabilities, be entitled to the benefits of this Guaranty to the
same extent as if such assignee or transferee were such
Beneficiary.
Section 5. No Waiver by Beneficiaries. No delay in the
exercise of any right or remedy shall operate as a waiver
thereof, and no single or partial exercise of any right or remedy
shall preclude other or further exercise thereof or the exercise
of any other right or remedy; nor shall any modification or
waiver of any of the provisions of this Guaranty be binding upon
any Beneficiary except as expressly set forth in a writing duly
signed and delivered on its behalf. No action permitted
hereunder shall in any way affect or impair any Beneficiary's
rights or Guarantor's obligations under this Guaranty. For the
purposes of this Guaranty, Liabilities shall include all of the
obligations described in the definition thereof, notwithstanding
any right or power of Guarantor or anyone else to assert any
claim or defense as to the invalidity or unenforceability of any
such obligation, and no such claim or defense shall affect or
impair the obligations of Guarantor hereunder. Guarantor's
obligations under this Guaranty shall be absolute and
unconditional irrespective of any circumstance whatsoever which
might constitute a legal or equitable discharge or defense of
Guarantor. Guarantor hereby acknowledges that there are no
conditions to the effectiveness of this Guaranty.
Section 6. Joint and Several Obligations; Successors and
Assigns. All obligations under this Guaranty are joint and
several to Guarantor and any other party which hereafter
guarantees any portion of the Liabilities, and shall be binding
upon them and upon their successors and assigns. All references
herein to Guarantor shall be deemed to include any successor or
successors, whether immediate or remote, to such Person.
Section 7. Severability. Wherever possible, each provision
of this Guaranty shall be interpreted in such manner as to be
effective and valid under Applicable Laws, but if any provision
of this Guaranty shall be prohibited by or invalid thereunder,
such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Guaranty.
Section 8. Notices. All notices, demands, declarations,
consents, directions, approvals, instructions, requests and other
communications required or permitted by this Guaranty shall be in
writing and shall be deemed to have been duly given when
addressed to the appropriate Person and delivered in the manner
specified in Section 8.3 of the Participation Agreement. The
initial address for notices to Guarantor is set forth on Schedule
1 hereto.
SECTION 9. GOVERNING LAW. THIS GUARANTY HAS BEEN DELIVERED
TO ADMINISTRATIVE AGENT AT NEW YORK AND SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES EXCEPT SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
REEBOK INTERNATIONAL LTD.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Schedule 1
to Guaranty
SCHEDULE 1
Addresses for Notices
c/o
Reebok International Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇ ▇▇▇▇▇▇▇, Treasurer
Telephone:
Facsimile:
Copy to: General Counsel