EXHIBIT 10.2
GUARANTY
XXXXXXX FACTORS, INC.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Gentlemen:
In order to induce you to enter into a certain Factoring Agreement bearing
the effective date of July 26, 1995 with Just Toys, Inc., 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as the "Client") and/or to
induce you to refrain at this time from terminating said agreement and/or in
consideration of any loans, advances, payment, extensions of credit, benefits or
financial accommodations heretofore or hereafter made, granted or extended by
you or which you have or will become obligated to make, grant or extend to or
for the account for the Client, the undersigned (and each of them if more than
one) guarantees without deduction by reason of set-off, defense, or counterclaim
of any party, or loss of contribution from any co-guarantor hereunder, the due
performance of all of the Client's contracts and agreements with you, both
present and future and any and all subsequent renewals, extensions,
continuations, modifications, supplements and amendments thereof, and the prompt
payment to you with interest of any and all sums which may be presently due and
owing or which shall in the future become due and owing to you from the Client.
This joint and several primary liability shall include but not be limited to any
and all amounts charged or chargeable to the account of the Client and any and
all existing and future obligations and indebtedness of the Client, whether
acquired by you by assignment, transfer, or otherwise, and whether or not such
obligations and indebtedness shall arise under the aforesaid Factoring Agreement
or under any other contract or agreement or any renewal, modification,
supplement or amendment thereof, or shall be represented by or payable under
instruments of indebtedness or otherwise, and whether or not such obligations
and indebtedness shall be acquired by you from any concern which is your parent
or subsidiary or the co-subsidiary of your parent or for which you may now or in
the future act as a factor and/or lender, and in addition, the undersigned shall
be liable to you for attorney's fees equal to fifteen (15%) percent of the
unpaid indebtedness and obligations of the Client to you, if any claim hereunder
is referred to an attorney for collection.
The undersigned hereby waives notice of acceptance hereof and of all
notices and demands of any kind to which the undersigned may be entitled,
including without limitation, notice of adverse change in Client's financial
condition or of any other fact which might materially increase the risk of the
undersigned; all demands of payment on, and notice of nonpayment, protest and
dishonor to the undersigned, or the Client, or the makers, or endorsers of any
notes or other instruments for which the undersigned is or may be liable
hereunder. The undersigned hereby further waives the right to renounce any
disposition or transfer of assets whether created under a will, trust agreement
or intestacy statute, with respect to any devise, bequest, distributive share,
trust account, life insurance or annuity contract, employee benefit
plan (including, without limitation, any pension, retirement, death benefits,
stock bonus or profit sharing plan, system or trust), or any other disposition
or transfer created by any testamentary or nontestamentary instrument or by
operation of law, and any of the foregoing created or increased by reason of a
renunciation made by another person. All sums at any time to the credit of the
undersigned and any property of the undersigned in your possession shall be
deemed held by you as security for any and all of the undersigned's obligations
to you and to any company or companies which may now or at any time be your
parent or subsidiary, or the co-subsidiary of your parent, no matter how or when
arising and whether under this or any other instrument, agreement or otherwise.
The undersigned further waives notice of and hereby consents to any agreement or
arrangements whatever with the Client or any one else including, without
limitation, agreements and arrangements for payment extension, subordination,
composition, arrangement, discharge or release of the whole or any part of said
obligations or of said indebtedness, contracts or agreements or other
guarantors, or of the making of any election of rights or remedies you may deem
desirable under any Bankruptcy Code, or for the change or surrender of any and
all security, or for compromise, whether by way of acceptance of part payment or
of dividends or in any other way whatsoever, and the same shall in no way impair
the undersigned's liability hereunder. Nothing shall discharge or satisfy the
liability of the undersigned hereunder except the full performance and payment
of the said obligations and indebtedness with interest. The undersigned
expressly waives any and all rights of subrogation, reimbursement, indemnity,
exoneration, contribution or any other claim which the undersigned may now or
hereafter have against the Client or any other person directly or contingently
liable for the obligations guarantied hereunder, or against or with respect to
the Client's property (including, without limitation, properly collateralizing
the undersigned's obligations to you), arising from the existence or performance
of this guaranty. In furtherance, and not in limitation, of the preceding
waiver, the undersigned agrees that any payment to you by the undersigned
pursuant to this guaranty shall be deemed a contribution to the capital of the
Client or other obligated party and any such payment shall not constitute the
undersigned a creditor of any such party. Any and all present and future debts
and obligations of the Client to any of the undersigned are hereby waived and
postponed in favor of, and subordinated to the full payment and performance of,
all present and future debts and obligations of the Client to you. The
undersigned agrees that if the Client or any of the undersigned should at any
time become insolvent, or make a general assignment, or if a proceeding in
bankruptcy or any insolvency or reorganization proceeding shall be filed or
commenced by, or in respect of the Client or any of the undersigned, any and all
obligations of the undersigned shall, at your option, forthwith become due and
payable without notice. If you receive any payment or payments on account of
the liabilities guaranteed hereby, which payment or payments or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside and/or required to be repaid to a trustee, receiver, or any other party
under any bankruptcy act or code, state or federal law, common law or equitable
doctrine, then to the extent of any sum not finally retained by you, our
obligations to you shall be reinstated and this Agreement shall remain in full
force and effect (or be reinstated) until we shall have made payment to you,
which payment shall be due on demand.
Your books and records showing the account between you and the Client shall
be
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admissible in evidence in any action or proceeding, shall be binding upon the
undersigned for the purposes of establishing the items therein set forth and
shall constitute prima facie proof thereof. This instrument is and shall be
construed to be an absolute, continuing, unconditional and unlimited guaranty of
payment, and shall continue in full force and effect, notwithstanding the death
of any of the undersigned, until terminated by the actual receipt by you from
the undersigned by registered mail of written notice of termination; such
termination shall be applicable only to transactions having their inception
thereafter, and rights and obligations arising out of transactions having their
inception prior to such termination shall not be affected. Termination by one or
more of the undersigned shall not affect the liability of such of the
undersigned who do not give such notice of termination.
This guaranty shall be enforceable before or after proceeding against the
Client or simultaneously therewith, and without recourse to any security, and
shall be effective regardless of the subsequent incorporation, merger or
consolidation of the Client, or any change in the composition, nature, personnel
or location of the Client. This guaranty shall inure to and shall be
enforceable by you, any concern which is or may at any time be your parent or
subsidiary or the co-subsidiary of your parent and your and their successors and
assigns and shall be binding upon the heirs, executors, administrators,
successors and assigns of the undersigned. The undersigned does hereby waive
any and all right to a trial by jury in any action or proceeding based hereon.
This instrument cannot be changed or terminated orally, and shall be governed,
construed and interpreted as to validity, enforcement and in all other respects
in accordance with the laws of the State of New York, the jurisdiction of such
state's courts being hereby consented to for all purposes in connection
herewith.
Dated: May ____, 1997
Witness:_____________________________ _________________________________
(Guarantor)
Home Address
Witness:_____________________________ _________________________________
(Guarantor)
Home Address
Witness:____________________________ _________________________________
(Guarantor)
Home Address
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Attest: /s/ CELT SPECIALTY PARTNERS,INC.
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(Corporate Guarantor)
By: /s/ Xxxxx Xxxxxxxx
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Title: V.P. Finance
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Attest --------------------------------
--------------------------- (Corporate Guarantor)
By:
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Title:
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(Corporate Guarantor should also furnish appropriate Certified Resolution of the
Board of Directors and Notarized Consent of Stockholders.)
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