Exhibit 10.4.3
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GUARANTY OF LEASE
THIS GUARANTY OF LEASE ("Guaranty") is entered into as of August 8, 1997,
by Callaway Golf Company, a California corporation ("GUARANTOR"), in favor of
Techplex, L.P., a California limited partnership ("LANDLORD"), and is with
reference to the following facts, which are a material part of this Guaranty:
A. LANDLORD and Putter Properties, Inc., a Delaware corporation,
("TENANT") previously entered into that certain Standard Industrial/Commercial
Single-Tenant Lease-Net, dated December 20, 1996 ("Lease").
B. Tommy Armour Golf Company, a Delaware corporation, and Odyssey Sports,
Inc., a California corporation ("Odyssey") entered into a Guaranty of Lease,
dated December 20, 1996, to guaranty TENANT's obligations under the Lease.
C. Callaway Acquisition, a California corporation ("Callaway") and an
affiliate of GUARANTOR, is acquiring all of the assets of Odyssey and is
succeeding to the liabilities of TENANT under the Lease.
D. Any words or phrases constituting defined terms in the Lease shall have
the same meaning and effect when used in this Guaranty.
NOW THEREFORE, for other good and valuable consideration, the receipt and
sufficiency of which is acknowledged, GUARANTOR agrees as follows:
1. Guaranteed Obligations. GUARANTOR hereby unconditionally and
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irrevocably guarantees to LANDLORD the payment of, and promises to pay to
LANDLORD, or order, upon demand after any Breach under the Lease, all
indebtedness and obligations, of any nature whatsoever, of TENANT under the
Lease and any and all extensions, renewals, substitutions, replacements and
modifications thereof, and additionally promises to timely perform all other
obligations as set forth in the Lease. For purposes of reference in this
Guaranty, all of the obligations described in this section being guaranteed by
GUARANTOR are referred to as the "Guaranteed Obligations."
2. Independent Obligations. This Guaranty is a guaranty of payment and
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not of collection. The GUARANTOR's obligations under this Guaranty are
independent of those of the TENANT and of the obligations of any other
guarantor, and are not conditioned or contingent upon the validity, regularity,
or enforceability of the Guaranteed Obligations or of the obligations of any
other guarantor. LANDLORD may bring a separate action against the GUARANTOR
without first proceeding against the TENANT, any other guarantor, or any other
person or entity. LANDLORD's rights under this Guaranty in respect of the
Guaranteed Obligations shall not be exhausted by any
action of the LANDLORD until all of the Guaranteed Obligations have been fully
and indefeasibly paid.
3. Waiver of Defenses. The GUARANTOR waives and agrees not to assert or
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take advantage of:
(a) any right to require the LANDLORD to proceed against the TENANT,
any other guarantor, or any other person or entity, or to pursue any other
remedy whatsoever, including, without limitation, any such right or any other
right set forth in or arising out of any of Sections 2845, 2848, 2849, 2850 and
2855 of the California Civil Code;
(b) any defense based upon any legal disability of the TENANT or of any
other guarantor or any discharge or limitation of the liability of the TENANT or
of any other guarantor to the LANDLORD, or any restraint or stay applicable to
actions against the TENANT or against any other guarantor, whether such
disability, discharge, limitation, restraint, or stay is consensual, arises by
order of a court or other governmental authority, or arises by operation of law
or any liquidation, reorganization, receivership, bankruptcy, insolvency or
debtor relief proceeding, or from any other cause, including, without
limitation, any defense to the payment of interest, attorneys' fees and costs,
and other charges that otherwise would accrue or become payable in respect of
the Guaranteed Obligations after the commencement of any such proceeding:
(c) setoffs or counterclaims (except as otherwise available to TENANT),
presentment, demand, protest, notice of protest, notice of non-payment, or other
notice of any kind;
(d) any defense based upon the modification, renewal, extension, or
other alteration of the Guaranteed Obligations;
(e) any defense based upon a statute of limitations (to the fullest
extent permitted by law), and any defense based upon the LANDLORD's delay in
enforcing this Guaranty;
(f) any defense based upon the death, incapacity, lack of authority, or
termination of existence of, or revocation of this Guaranty by, any person or
entity or persons or entities, or the substitution of any party to this
Guaranty;
(g) any defense based upon or related to the GUARANTOR's lack of
knowledge as to the TENANT's financial condition;
(h) any defense based upon Section 2809 of the California Civil Code;
(i) any defense based upon the impairment of any subrogation or
reimbursement rights that the GUARANTOR might have; and
(j) any right to direct the application of any payment or collateral.
4. TENANT's Financial Condition. The GUARANTOR acknowledges that the
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GUARANTOR is relying upon the GUARANTOR's own knowledge and is fully informed
with respect to the TENANT's financial condition. The GUARANTOR assumes full
responsibility for keeping fully informed of the financial condition of the
TENANT and all other circumstances affecting the TENANT's ability to perform its
obligations to the LANDLORD, and agrees that the LANDLORD will have no duty to
report to the GUARANTOR any information that the LANDLORD receives about the
TENANT's financial condition or any circumstances bearing on the TENANT's
ability to perform all or any portion of the Guaranteed Obligations, regardless
of whether the LANDLORD has reason to believe that any such facts materially
increase the risk beyond that which the GUARANTOR intends to assume or has
reason to believe that such facts are unknown to the GUARANTOR or has a
reasonable opportunity to communicate such facts to the GUARANTOR.
5. Subrogation and Additional Waiver. Until all the covenants and
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conditions in the Lease on TENANT's part to be performed and observed, are fully
performed and observed, GUARANTOR (a) shall have no right of subrogation against
TENANT by reason of any payments or acts of performance by GUARANTOR hereunder;
and (b) subordinates any liability or indebtedness of TENANT now or hereafter
held by GUARANTOR in the obligations of TENANT to LANDLORD under the Lease.
GUARANTOR waives all rights and defenses arising out of an election of remedies
by LANDLORD, even though that election of remedies has destroyed or diminished
GUARANTOR's rights of subrogation and reimbursement against TENANT.
6. Liability of GUARANTOR. The liability of GUARANTOR under this Guaranty
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shall in no way be affected by (a) the release or discharge of TENANT in any
creditor's receivership, bankruptcy or similar proceeding; (b) the impairment,
limitation or bankruptcy, or of any remedy for the enforcement of TENANT's
liability under the Lease resulting from the operation of any present or future
provision of the bankruptcy code or similar statute or similar decision in any
court; (c) the rejection or disaffirmance of the Lease in any such proceedings;
(d) the assignment or transfer of the Lease by TENANT; (e) any disability of
TENANT; (f) the exercise by LANDLORD of any of its rights or remedies reserved
under the Lease or by law; or (g) any termination of the Lease.
7. Financial Statements. If LANDLORD desires to sell, finance or
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refinance the property which compromises in whole or in part the Premises which
are the subject of the Lease, GUARANTOR agrees to deliver to any lender or buyer
designated by LANDLORD financial statements of GUARANTOR (in such form as
customarily prepared by or for GUARANTOR, including all audited statements
prepared, if any) as may be reasonably required by such lender or buyer. Such
statements shall include the past three (3) years' financial statements of
GUARANTOR. Any such financial
statements shall be received by LANDLORD in confidence and shall be used only
for the foregoing purposes.
8. Attorneys' Fees. In the event of any litigation between GUARANTOR and
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LANDLORD to enforce or interpret this Guaranty or in connection with the Lease,
the unsuccessful party to such litigation agrees to pay to the successful party
all fees, costs and expenses, including reasonable attorney's fees, expert
witness fees and expenses.
9. Binding Effect/Assignment. This Guaranty shall be binding upon the
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GUARANTOR and the GUARANTOR's heirs, executors, personal representatives,
successors, and assigns, and shall inure to the benefit of, and be enforceable
by, the LANDLORD and the LANDLORD's successors and assigns. The benefit of this
Guaranty shall be assignable by LANDLORD to LANDLORD's lenders and successors
and enforceable by them, and the term "Landlord" as used in this Guaranty
includes such successors and assigns. Any assignment of the Lease shall be
deemed to include the assignment of this Guaranty notwithstanding that this
Guaranty is not separately described in the instrument of assignment.
10. Notices. All notices and other communications shall be in writing and
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provided to LANDLORD at the address set forth in the Lease and to GUARANTOR, or
at the address set forth under GUARANTOR's signature, unless either party gives
the other written notice of a different address for notices and communications.
11. Severability. If any provision of this Guaranty shall be deemed or
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held to be invalid or unenforceable for any reason, such provision shall be
adjusted, if possible, rather than voided, so as to achieve the intent of the
parties to the fullest extent possible. In any event such provision shall be
severable from, and shall not be construed to have any effect on, the remaining
provisions of this Guaranty, which shall continue in full force and effect.
12. Multiple Obligors. If "GUARANTOR" refers to more than one person or
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entity, then (i) the obligations of each such person or entity shall be joint
and several; (ii) all references to the "GUARANTOR" shall, unless the context
otherwise requires, refer to all such parties jointly and severally; and (iii)
each such person or entity named as GUARANTOR waives any and all defenses based
upon suretyship or guaranty or impairment of collateral. If the GUARANTOR is a
partnership, the partnership and all general partners therein shall be jointly
and severally liable under this Guaranty. Where the "TENANT" is more than one
person or entity, the word "TENANT" shall mean all and any one or more of them.
13. Governing Law; Jurisdiction. This Guaranty shall be governed by and
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construed in accordance with the laws of the State of California applicable to
contracts to be wholly performed within the State of California. The GUARANTOR,
by execution of this Guaranty, irrevocably consents to the jurisdiction of the
Courts of the State of
California and of any Federal Court located in such State in connection with any
action or proceeding arising out of or relating to this Guaranty.
14. Rights Cumulative; No Waiver. The LANDLORD's options, powers, rights,
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privileges, and immunities specified herein or arising hereunder are in addition
to, and not exclusive of, those otherwise created or existing now or at any
time, whether by contract, by statute, or by rule of law. The LANDLORD shall
not, by any act, delay, omission or otherwise, be deemed to have modified,
discharged, or waived any of the LANDLORD's options, powers or rights in respect
of this Guaranty, and no modification, discharge, or waiver of any such option,
power or right shall be valid unless set forth in writing signed by the LANDLORD
or the LANDLORD's authorized agent, and then only to the extent therein set
forth. A waiver by the LANDLORD of any right or remedy hereunder on any one
occasion shall be effective only in the specific instance and for the specific
purpose for which given, and shall not be construed as a bar to any right or
remedy that the LANDLORD would otherwise have on any other occasion.
15. Entire Agreement. This Guaranty contains the entire agreement between
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the GUARANTOR and the LANDLORD with respect to its subject matter, and
supersedes all prior communications relating thereto, including, without
limitation, all oral statements or representations. No supplement to or
modification of this Guaranty shall be binding unless executed in writing by the
GUARANTOR and the LANDLORD.
16. No Execution by Landlord. LANDLORD, by acceptance of the delivery of
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this Guaranty from GUARANTOR shall be deemed to have accepted the terms and
conditions of this Guaranty. This Guaranty does not require the LANDLORD to
execute the GUARANTY as a condition to its effectiveness.
IN WITNESS WHEREOF, GUARANTOR has executed this Guaranty to be effective as
of the date first set forth above.
"GUARANTOR"
Callaway Golf Company,
a California corporation
By: /s/ DONALD H. DYE
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Donald H. Dye, President and CEO
2285 Rutherford Road
Carlsbad, California 92008-8815