1
EXHIBIT 10.3
MASTER CONTINUING AND UNCONDITIONAL GUARANTY
To: Bank of America, N.A.
1. The Guaranty. For valuable consideration, the undersigned (individually
and collectively "Guarantor") hereby unconditionally guarantees and promises to
pay promptly to Bank of America, N.A. ("Bank"), or order, in lawful money of the
United States, any and all Indebtedness of Pacific Sunwear of California, Inc.
("Borrower") to Bank when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter. The liability of Guarantor under this
Guaranty is not limited as to the principal amount of the Indebtedness
guaranteed and includes, without limitation, liability for all interest, fees,
indemnities (including, without limitation, hazardous waste indemnities), and
other costs and expenses relating to or arising out of the Indebtedness. The
liability of Guarantor is continuing and relates to any Indebtedness, including
that arising under successive transactions which shall either continue the
Indebtedness or from time to time renew it after it has been satisfied. This
Guaranty is cumulative and does not supersede any other outstanding guaranties,
and the liability of Guarantor under this Guaranty is exclusive of Guarantor's
liability under any other guaranties signed by Guarantor. If more than one
entity signs this Guaranty, their obligations under this Guaranty shall be joint
and several.
2. Definitions.
(a) "Borrower" shall mean the entity named in Paragraph 1 of this
Guaranty and, if more than one, then any one or more of them.
(b) "Guarantor" shall mean each entity signing this Guaranty, and, if
more than one, then any one or more of them.
(c) "Indebtedness" shall mean any and all debts, liabilities, and
obligations of Borrower to Bank, now or hereafter existing, whether
voluntary or involuntary and however arising, whether direct or indirect or
acquired by Bank by assignment, succession, or otherwise, whether due or
not due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, held or to be held by Bank for its own account or as agent
for another or others, whether Borrower may be liable individually or
jointly with others, whether recovery upon such debts, liabilities, and
obligations may be or hereafter become barred by any statute of
limitations, and whether such debts, liabilities, and obligations may be or
hereafter become otherwise unenforceable. Indebtedness includes, without
limitation, any and all obligations of Borrower to Bank for reasonable
attorneys fees and all other costs and expenses incurred by Bank in the
collection or enforcement of any debts, liabilities, and obligations of
Borrower to Bank.
(d) "Loan Documents" shall mean loan agreements between Borrower and
Bank and promissory notes from Borrower in favor of Bank evidencing or
relating to any of the Indebtedness, and shall include, without limitation,
any interest rate swap or other interest rate protection agreement or any
other derivative transaction, and deeds of trust, mortgages, security
agreements, and other agreements, documents, and instruments executed by
Borrower in connection with such loan agreements, interest rate protection
agreements and promissory notes, as such loan agreements, promissory notes,
and other agreements, documents, and instruments are now in effect and as
hereafter amended, restated, renewed or superseded.
2
3. Obligations Independent. The obligations hereunder are independent of
the obligations of Borrower or any other guarantor, and a separate action or
actions may be brought and prosecuted against Guarantor whether action is
brought against Borrower or any other guarantor or whether Borrower or any other
guarantor be joined in any such action or actions. Anyone executing this
Guaranty shall be bound by its terms without regard to execution by anyone else.
4. Rights of Bank. Guarantor authorizes Bank, without notice or demand and
without affecting its liability hereunder, from time to time to:
(a) renew, compromise, extend, accelerate, or otherwise change the
time for payment, or otherwise change the terms, of the Indebtedness or any
part thereof, including increase or decrease of the rate of interest
thereon, or otherwise change the terms of any Loan Documents;
(b) receive and hold security for the payment of this Guaranty or any
Indebtedness and exchange, enforce, waive, release, fail to perfect, sell,
or otherwise dispose of any such security;
(c) apply such security and direct the order or manner of sale thereof
as Bank in its discretion may determine; and
(d) release or substitute any Guarantor or any one or more of any
endorsers or other guarantors of any of the Indebtedness.
5. Guaranty to be Absolute. Guarantor agrees that until the Indebtedness
has been paid in full and any commitments of Bank or facilities provided by Bank
with respect to the Indebtedness have been terminated, Guarantor shall not be
released by or because of the taking, or failure to take, any action that might
in any manner or to any extent vary the risks of Guarantor under this Guaranty
or that, but for this paragraph, might operate as a discharge of or otherwise
reduce, limit, or modify Guarantor's obligations under this Guaranty. Guarantor
waives and surrenders any defense to any liability under this Guaranty based
upon any such action, including but not limited to any action of Bank described
in the immediately preceding paragraph. It is the express intent of Guarantor
that Guarantor's obligations under this Guaranty are and shall be absolute and
unconditional.
6. Guarantor's Waivers of Certain Rights and Certain Defenses. Guarantor
waives:
(a) any right to require Bank to proceed against Borrower, proceed
against or exhaust any security for the Indebtedness, or pursue any other
remedy in Bank's power whatsoever;
(b) any defense arising by reason of any disability or other defense
of Borrower, or the cessation from any cause whatsoever of the liability of
Borrower;
2
3
(c) any defense based on any claim that Guarantor's obligations exceed
or are more burdensome than those of Borrower; and
(d) the benefit of any statute of limitations affecting Guarantor's
liability hereunder.
No provision or waiver in this Guaranty shall be construed as limiting the
generality of any other waiver contained in this Guaranty.
7. Waiver of Subrogation. Until the Indebtedness has been paid in full and
any commitments of Bank or facilities provided by Bank with respect to the
Indebtedness have been terminated, Guarantor waives any right of subrogation,
reimbursement, indemnification, and contribution (contractual, statutory, or
otherwise) including, without limitation, any claim or right of subrogation
under the Bankruptcy Code (Title 11, United States Code) or any successor
statute, arising from the existence or performance of this Guaranty, and
Guarantor waives any right to enforce any remedy which Bank now has or may
hereafter have against Borrower, and waives any benefit of, and any right to
participate in, any security now or hereafter held by Bank.
8. Waiver of Notices. Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor, notices of intent to accelerate, notices of acceleration, notices of
any suit or any other action against Borrower or any other person, any other
notices to any party liable on any Loan Document (including Guarantor), notices
of acceptance of this Guaranty, and notices of the existence, creation, or
incurring of new or additional Indebtedness.
9. Subordination. Any obligations of Borrower to Guarantor, now or
hereafter existing, including but not limited to any obligations to Guarantor as
subrogee of Bank or resulting from Guarantor's performance under this Guaranty,
are hereby subordinated to the Indebtedness. In addition to Guarantor's waiver
of any right of subrogation as set forth in this Guaranty with respect to any
obligations of Borrower to Guarantor as subrogee of Bank, Guarantor agrees that,
if Bank so requests, Guarantor shall not demand, take, or receive from Borrower,
by setoff or in any other manner, payment of any other obligations of Borrower
to Guarantor until the Indebtedness has been paid in full and any commitments of
Bank or facilities provided by Bank with respect to the Indebtedness have been
terminated. If any payments are received by Guarantor in violation of such
waiver or agreement, such payments shall be received by Guarantor as trustee for
Bank and shall be paid over to Bank on account of the Indebtedness, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty. Any security interest, lien, or other encumbrance
that Guarantor may now or hereafter have on any property of Borrower is hereby
subordinated to any security interest, lien, or other encumbrance that Bank may
have on any such property.
10. Revocation of Guaranty. This Guaranty may be revoked at any time by
Guarantor in respect to future transactions, unless there is a continuing
consideration as to such transactions which Guarantor does not renounce. Such
revocation shall be effective upon actual receipt by Bank, at the address shown
below or at such other address as may have been provided to Guarantor by Bank,
of written notice of revocation. Revocation shall not affect any of Guarantor's
obligations or Bank's rights with respect to transactions which precede Bank's
receipt of such notice, regardless of whether or not the Indebtedness related to
such
3
4
transactions, before or after revocation, has been renewed, compromised,
extended, accelerated, or otherwise changed as to any of its terms, including
time for payment or increase or decrease of the rate of interest thereon, and
regardless of any other act or omission of Bank authorized hereunder. Revocation
by Guarantor shall not affect any obligations of any other guarantor.
11. Reinstatement of Guaranty. If this Guaranty is revoked, returned, or
canceled, and subsequently any payment or transfer of any interest in property
by Borrower to Bank is rescinded or must be returned by Bank to Borrower, this
Guaranty shall be reinstated with respect to any such payment or transfer,
regardless of any such prior revocation, return, or cancellation.
12. Stay of Acceleration. In the event that acceleration of the time for
payment of any of the Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower or otherwise, all such Indebtedness guaranteed by
Guarantor shall nonetheless be payable by Guarantor immediately upon demand by
Bank.
13. No Deductions. All payments by Guarantor hereunder shall be paid in
full, without setoff or counterclaim or any deduction or withholding whatsoever,
including, without limitation, for any and all present and future taxes. In the
event that Guarantor or Bank is required by law to make any such deduction or
withholding, Guarantor agrees to pay on behalf of Bank such amount directly to
the appropriate person or entity, or if the Guarantor cannot legally comply with
the foregoing, Guarantor shall pay to Bank such additional amounts as will
result in the receipt by Bank of the full amount payable hereunder. Guarantor
shall promptly provide Bank with evidence of payment of any such amount made on
Bank's behalf.
14. Information Relating to Borrower. Guarantor acknowledges and agrees
that it shall have the sole responsibility for, and has adequate means of,
obtaining from Borrower such information concerning Borrower's financial
condition or business operations as Guarantor may require, and that Bank has no
duty, and Guarantor is not relying on Bank, at any time to disclose to Guarantor
any information relating to the business operations or financial condition of
Borrower.
15. Borrower's Authorization. Where Borrower is a corporation, partnership,
or limited liability company, it is not necessary for Bank to inquire into the
powers of Borrower or of the officers, directors, partners, members, managers,
or agents acting or purporting to act on its behalf, and any Indebtedness made
or created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder, subject to any limitations on Guarantor's liability set
forth herein.
16. Information Relating to Guarantor. Guarantor authorizes Bank to verify
or check any information given by Guarantor to Bank, check Guarantors credit
references, verify employment, and obtain credit reports.
17. Foreign Currency. If any claim arising under or related to this
Guaranty is reduced to judgment denominated in a currency (the "Judgment
Currency") other than the currency or currencies in which the Indebtedness is
denominated (individually, an "Obligation Currency"), the judgment shall be for
the equivalent in the Judgment Currency of the amount of the claim denominated
in each Obligation Currency included in the judgment, determined as of the date
of judgment. The equivalent of any Obligation Currency amount in any Judgment
4
5
Currency shall be calculated at the spot rate for the purchase of the Obligation
Currency with the Judgment Currency quoted by Bank in the place of Bank's choice
at or about 8:00 a.m. on the date for determination specified above. Guarantor
shall indemnify Bank and hold Bank harmless from and against all loss or damage
resulting from any change in exchange rates between the date any claim is
reduced to judgment and the date of payment thereof by Guarantor.
18. Taxes. Guarantor represents and warrants that it is organized and
resident in the United States of America. If Guarantor must make a payment under
this Guaranty, Guarantor represents and warrants that it will make the payment
from one of its U.S. resident offices to a U.S. office of Bank so that no
withholding tax is imposed on the payment. If notwithstanding the foregoing,
Guarantor makes a payment under this Guaranty to which withholding tax applies,
then Guarantor shall pay any taxes (other than taxes on net income (a) imposed
by the country or any subdivision of the country in which Bank's principal
office or actual lending office is located and (b) measured by the United States
taxable income Bank would have received if all payments under or in respect of
this Guaranty were exempt from taxes levied by Guarantor's country) that are at
any time imposed on any such payments under or in respect of this Guaranty
including, but not limited to, payments made pursuant to this paragraph.
Further, Guarantor shall also pay to Bank, on demand, all additional amounts
that Bank specifies as necessary to preserve the after-tax yield Bank would have
received if such taxes had not been imposed.
19. Successors and Assigns. This Guaranty (a) binds Guarantor and
Guarantor's executors, administrators, successors, and assigns, provided that
Guarantor may not assign its rights or obligations under this Guaranty without
the prior written consent of Bank, and (b) inures to the benefit of Bank and
Bank's endorsees, successors, and assigns. Bank may, without notice to Guarantor
and without affecting Guarantor's obligations hereunder, sell, assign, grant
participation in, or otherwise transfer to any other person, firm, or
corporation the Indebtedness and this Guaranty, in whole or in part. Guarantor
agrees that Bank may disclose to any assignee or purchaser, or any prospective
assignee or purchaser, of all or part of the Indebtedness any and all
information in Bank's possession concerning Guarantor, this Guaranty, and any
security for this Guaranty, provided that such actual or potential participants
or assignees shall agree to treat all financial information exchanged as
confidential.
20. Costs and Expenses. Guarantor agrees to pay all reasonable attorneys'
fees, including allocated costs of Bank's in-house counsel, and all other costs
and expenses which may be incurred by Bank (a) in the enforcement of this
Guaranty or (b) in the preservation, protection, or enforcement of any rights of
Bank in any case commenced by or against Guarantor under the Bankruptcy Code
(Title 11, United States Code) or any similar or successor statute.
21. Notices. All notices required under this Guaranty shall be personally
delivered or sent by first class mail, postage prepaid, or by overnight courier,
to the addresses on the signature page of this Guaranty, or sent by facsimile to
the fax number listed on the signature page, or to such other addresses as Bank
and Guarantor may specify from time-to-time in writing. Notices sent by (a)
first class mail shall be deemed delivered on the earlier of actual receipt or
on the fourth business day after deposit in the U.S. mail, postage prepaid, (b)
overnight owner shall be deemed delivered on the next business day, and (c)
telecopy shall be deemed delivered when transmitted.
5
6
22. Governing Law and Jurisdiction. This Guaranty shall be governed by and
construed under the laws of the State of California. Guarantor irrevocably (a)
submits to the non-exclusive jurisdiction of any United States Federal or State
court sitting in the State of California, in any action or proceeding arising
out of or relating to this Guaranty and (b) waives to the fullest extent
permitted by law any defense asserting an inconvenient forum in connection
therewith. Service of process by Bank in connection with such action or
proceeding shall be binding on Guarantor if sent to Guarantor by registered or
certified mail at its address specified below.
23. Arbitration and Waiver of Jury Trial
(a) This paragraph concerns the resolution of any controversies or
claims between Guarantor and Bank, whether arising in contract, tort or by
statute, including but not limited to controversies or claims that arise
out of or relate to: (i) this Guaranty (including any renewals, extensions
or modifications); or (ii) any document related to this Guaranty
(collectively a "Claim").
(b) At the request of Guarantor or Bank, any Claim shall be resolved
by arbitration in accordance with the Federal Arbitration Act (Title 9,
United States Code) (the "Act"). The Act will apply even though this
Guaranty provides that it is governed by the law of a specified state.
(c) Arbitration proceedings will be determined in accordance with the
Act, the rules and procedures for the arbitration of financial services
disputes of J.A.M.S./Endispute or any successor thereof ("J.A.M.S."), and
the terms of this paragraph. In the event of any inconsistency, the terms
of this paragraph shall control.
(d) The arbitration shall be administered by J.A.M.S. and conducted in
any state where real property collateral for this Guaranty or the Bank
office originating the Indebtedness guaranteed by this Guaranty is located.
All Claims shall be determined by one arbitrator; however, if the Claim is
in excess of Five Million U.S. Dollars ($5,000,000), upon the request of
any party, the Claim shall be decided by three arbitrators. All arbitration
hearings shall commence within 90 days of the demand for arbitration and
close within 90 days of commencement, and the award of the arbitrator(s)
shall be issued within 30 days of the close of the hearing. However, the
arbitrator(s), upon a showing of good cause, may extend the commencement of
the hearing for up to an additional 60 days. The arbitrator(s) shall
provide a concise written statement of reasons for the award. The
arbitration award may be submitted to any court having jurisdiction to be
confirmed and enforced.
(e) The arbitrator(s) will have the authority to decide whether any
Claim is barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. For purposes of the application of the statute
of limitations, the service on J.A.M.S. under applicable J.A.M.S. rules of
a notice of claim is the equivalent of the filing of a lawsuit. Any dispute
concerning this arbitration provision or whether a Claim is arbitrable
shall be determined by the arbitrator(s). The arbitrator(s) shall have the
power to award legal fees pursuant to the terms of this Guaranty.
6
7
(f) This paragraph does not limit the right of Guarantor or Bank to:
(i) exercise self-help remedies, such as but not limited to, setoff, (ii)
initiate judicial or nonjudicial foreclosure against any real or personal
property collateral, (iii) exercise any judicial or power of sale rights,
or (iv) act in a court of law to obtain an interim remedy, such as but not
limited to, injunctive relief, writ of possession or appointment of a
receiver, or additional or supplementary remedies.
(g) The procedure described above will not apply if the Claim, at the
time of the proposed submission to arbitration, arises from or relates to
an obligation to Bank secured by real property located in California. In
this case, both Guarantor and Bank must consent to submission of the Claim
to arbitration. If both parties do not consent to arbitration, the Claim
will be resolved as follows: Guarantor and Bank will designate a referee
(or a panel of referees) selected under the auspices of J.A.M.S. in the
same manner as arbitrators are selected in J.A.M.S. administered
proceedings. The designated referee(s) will be appointed by a court as
provided in California Code of Civil Procedure Section 638 and the
following related sections. The referee (or the presiding referee of the
panel) will be an active attorney or a retired judge. The award that
results from the decision of the referee(s) will be entered as a judgment
in the court that appointed the referee, in accordance with the provisions
of California Code of Civil Procedure Sections 644 and 645.
(h) The filing of a court action is not intended to constitute a
waiver of the right of Guarantor or Bank, including the suing party,
thereafter to require submittal of the Claim to arbitration.
(i) By agreeing to binding arbitration, the parties irrevocably and
voluntarily waive any right they may have to a trial by jury in respect of
any claim. Furthermore, without intending in any way to limit this
agreement to arbitrate, to the extent any claim is not arbitrated, the
parties irrevocably and voluntarily waive any right they may have to a
trial by jury in respect of such claim. This provision is a material
inducement for the parties entering into this Guaranty.
24. Counterparts. This Guaranty may be executed in as many counterparts as
necessary or convenient, and by different parties on separate counterparts each
of which, when so executed, shall be deemed an original but all such
counterparts shall constitute but one and the same agreement.
7
8
Address for notices to Bank:
675 Anton Boulevard, 2nd Floor
Costa Mesa, CA 92626
Address for notices to Guarantor:
- --------------------------------------
- --------------------------------------
Executed this day of , 2001
-------------------- -------------------
PACIFIC SUNWEAR STORES CORP.,
a California corporation
By: /s/ GREG H. WEAVER
-------------------------------
Name: Greg H. Weaver
Title: Chairman of the Board and
Chief Executive Officer
SHOPPACSUN.COM CORP.,
a California corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
8