GUARANTY
EXHIBIT
4.48
EXHIBIT B
GUARANTY
dated as
of December 21, 2006 (this “Guaranty”) made by Grand Toys International,
Inc., a Nevada corporation (the “Guarantor”), in favor of CitiCapital Commercial
Corporation, a Delaware corporation (the “Lender”).
WITNESSETH:
WHEREAS,
International Playthings, Inc., a New Jersey corporation (the “Borrower”), is
entering into a Loan and Security Agreement of even date herewith (as amended,
supplemented or otherwise modified from time to time, the “Loan Agreement”;
capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Loan Agreement) with the Lender pursuant
to which the Lender has agreed, among other things, to make Loans to, and to
provide for the issuance of Letters of Credit for the account of, the Borrower,
subject to the terms and conditions set forth in the Loan
Agreement;
WHEREAS,
the
Guarantor is the legal and beneficial owner of all of the shares of the capital
stock of the Borrower, has an interest in the financial affairs and well-being
of the Borrower and will benefit from the transactions contemplated by the
Loan
Agreement;
WHEREAS,
it is a
condition precedent to the effectiveness of the Loan Agreement that the
Guarantor shall have executed and delivered this Guaranty in favor of and for
the benefit of the Lender.
NOW,
THEREFORE,
in
consideration of the promises contained herein and to induce the Lender to
enter
into the Loan Agreement and to make Loans to, and to provide for the issuance
of
Letters of Credit for the account of, the Borrower thereunder, the Guarantor
hereby agrees as follows:
ARTICLE
I GUARANTY.
(a) The
Guarantor hereby unconditionally and irrevocably (i) guarantees to the
Lender the prompt and complete payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of all of the Obligations and
(ii) agrees to pay all costs and expenses incurred by the Lender (including
the fees and disbursements of counsel and other professionals) in connection
with (A) enforcing or defending the Lender’s rights under or in respect of
this Guaranty or any other document or instrument now or hereafter executed
and
delivered in connection herewith or (B) collecting the Obligations or
otherwise administering this Guaranty.
(b) The
Guarantor hereby agrees that all payments hereunder will be paid to the Lender
without setoff, deduction or counterclaim at the office of the Lender located
at
the address specified in Section 9 in U.S. dollars and in immediately
available funds.
ARTICLE
II GUARANTY
ABSOLUTE.
The Guarantor guarantees that the Obligations will be paid strictly in
accordance with the terms of the Loan Agreement, the Notes and the other Loan
Documents regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of the Lender
with
respect thereto. The liability of the Guarantor under this Guaranty shall be
absolute and unconditional irrespective of:
Section
2.1 any
lack
of validity, regularity or enforceability of the Loan Agreement or any other
Loan Document;
Section
2.2 any
lack
of validity, regularity or enforceability of this Guaranty;
Section
2.3 any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Obligations, or any other amendment or waiver of or any consent
to
departure from the Loan Agreement or any other Loan Document;
Section
2.4 any
exchange, release or non-perfection of any security interest in any collateral,
or any release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Obligations;
Section
2.5 any
failure on the part of the Lender or any other Person to exercise, or any delay
in exercising, any right under the Loan Agreement or any other Loan Document;
or
Section
2.6 any
other
circumstance which might otherwise constitute a defense available to, or a
discharge of the Borrower, the Guarantor or any other guarantor with respect
to
the Obligations (including, without limitation, all defenses based on suretyship
or impairment of collateral, and all defenses that the Borrower may assert
to
the repayment of the Obligations, including, without limitation, failure of
consideration, breach of warranty, payment, statute of frauds, bankruptcy,
lack
of legal capacity, statute of limitations, lender liability, accord and
satisfaction, and usury), this Guaranty and the obligations of the Guarantor
under this Guaranty.
The
Guarantor hereby agrees that if the Borrower or any other guarantor of all
or a
portion of the Obligations is the subject of a bankruptcy case under the
Bankruptcy Code, it will not assert the pendency of such case or any order
entered therein as a defense to the timely payment of the Obligations. The
Guarantor hereby waives notice of or proof of reliance by the Lender upon this
Guaranty, and the Obligations shall conclusively be deemed to have been created,
contracted, incurred, renewed, extended, amended or reduced (as to the Borrower
only) in reliance upon this Guaranty. The Guarantor hereby agrees that this
Guaranty is a guaranty of payment and not collection.
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ARTICLE
III WAIVER.
The Guarantor hereby waives (a) promptness, diligence, notice of acceptance
and any other notice or demand of any kind with respect to any of the
Obligations and any of the amounts payable under Section 1(a)(ii) or that
may be required to be given under any Requirement of Law and (b) any
requirement that the Lender protect, secure, perfect or insure any Lien or
any
property subject thereto or exhaust any right to take any action against the
Borrower or any other Person or any collateral.
ARTICLE
IV SUBROGATION.
The Guarantor hereby agrees that it will not exercise or assert any rights,
claims, defenses or rights of setoff which it may acquire against the Borrower
or any other guarantor of all or part of the Obligations that arise from the
existence, payment, performance or enforcement of its obligations hereunder
(including, without limitation, any rights or claims of subrogation,
reimbursement or contribution), until the termination of the obligation of
the
Lender to make Loans and cause Letters of Credit to be issued (the
“Commitment”), the indefeasible payment in full in cash of the Obligations and
the termination, Collateralization or expiration of all Letters of Credit.
If
any amount shall be paid to the Guarantor in violation of the immediately
preceding sentence, such amount shall be held in trust for the benefit of the
Lender and shall forthwith be paid to the Lender to be credited and applied
against the Obligations and all other amounts payable under
Section 1(a)(ii), whether matured or unmatured, in such order as the Lender
may determine.
ARTICLE
V REPRESENTATIONS
AND WARRANTIES.
(a) The
Guarantor hereby makes each of the representations and warranties made by the
Borrower under Section 6.1(a), 6.1(c) and 6.1(e) of the Loan Agreement as
if such representations and warranties stated that they applied to the
Guarantor, and such representations and warranties as applied to the Guarantor
are true and correct as if they were repeated separately herein by the
Guarantor.
(b) The
Guarantor has, independently and without reliance upon the Lender and based
on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Guaranty.
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ARTICLE
VI COVENANTS.
The Guarantor covenants and agrees that, until the termination of the
Commitment, the payment in full of the Obligations and the termination,
Collateralization or expiration of all Letters of Credit, the Guarantor will
perform, observe and otherwise comply with all of the covenants of the Borrower
under Section 7.1(a) and Section 7.2(b) and 7.2(e) of the Loan
Agreement as if such covenants stated that they applied to the Guarantor and
were repeated separately herein by the Guarantor.
ARTICLE
VII RIGHT
OF SETOFF.
In addition to and not in limitation of all rights of offset that the Lender
or
any of its Affiliates may have under applicable law, and whether or not the
Lender has made any demand or the obligations of the Guarantor has matured,
the
Lender and its Affiliates shall have the right to set off and apply any and
all
deposits (general or special, time or demand, provisional or final, or any
other
type) at any time held and any other Indebtedness at any time owing by the
Lender or its Affiliates to or for the credit or the account of the Guarantor
or
any of the Guarantor’s Affiliates against any and all of the Obligations. If the
Lender exercises any of its rights under this Section 7, the Lender shall
provide notice to the Guarantor of such exercise, provided that the failure
to
give such notice shall not affect the validity of the exercise of such
rights.
ARTICLE
VIII SURVIVAL
OF PROVISIONS.
All representations, warranties and covenants made by the Guarantor under this
Guaranty shall survive the execution and delivery hereof and the closing of
the
transactions contemplated hereby.
ARTICLE
IX NOTICES.
All notices and other communications hereunder shall be in writing and sent
by
certified or registered mail, return receipt requested, by overnight delivery
service, with all charges prepaid, by hand delivery, or by telecopier followed
by a hard copy sent by regular mail, if to the Lender, then to CitiCapital
Commercial Corporation, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000,
Telecopy: (914) _______, Attn.: Account Manager, International Playthings,
Inc., with a copy to CitiCapital Commercial Corporation, 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000, Telecopy: (000) 000-0000, Attn.: Xxxxxx X.
Xxxxxxxx, Esq., and if to the Guarantor, then to it at Grand Toys International,
Inc. c/o International Playthings, Inc., 00X Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxx
Xxxxxx 00000, Telecopy: (000) 000-0000, Attn.: Xx. Xxxxxxx Xxxxx, with a
copy to Xxxxxxx Xxxxx LLP, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000,
Attn.: Xxxx Xxxxxx, Esq., Telecopy (000) 000-0000, or, in each case, to
such other address as the Guarantor or the Lender may specify to the other
party
in the manner required hereunder. All such notices and correspondence shall
be
deemed given (i) if sent by certified or registered mail, three Business
Days after being postmarked, (ii) if sent by overnight delivery service or
by hand delivery, when received at the above stated addresses or when delivery
is refused and (iii) if sent by telecopier transmission, when such
transmission is confirmed.
ARTICLE
X AMENDMENTS,
WAIVERS AND CONSENTS.
No amendment or waiver of any provision of this Guaranty, or consent to any
departure by the Guarantor therefrom, shall in any event be effective unless
the
same shall be in writing and signed by the Lender, and then such amendment,
waiver or consent shall be effective only in the specific instance and for
the
specific purpose for which given.
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ARTICLE
XI DELAYS;
PARTIAL EXERCISE OF REMEDIES.
No delay or omission of the Lender to exercise any right or remedy hereunder
shall impair any such right or operate as a waiver thereof. No single or partial
exercise by the Lender of any right or remedy shall preclude any other or
further exercise thereof, or preclude any other right or remedy.
ARTICLE
XII TELECOPIED
SIGNATURE.
This Guaranty may be executed and delivered by telecopier or other facsimile
transmission all with the same force and effect as if the same was a fully
executed and delivered original manual counterpart.
ARTICLE
XIII SEVERABILITY.
In case any provision in or obligation under this Guaranty shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.
ARTICLE
XIV INTERPRETATION.
All terms not defined herein or in the Loan Agreement shall have the meaning
set
forth in the Code, except where the context otherwise requires. To the extent
a
term or provision of this Guaranty conflicts with the Loan Agreement and is
not
addressed herein with more specificity, the Loan Agreement shall control with
respect to the subject matter of such term or provision.
ARTICLE
XV CONTINUING
GUARANTY; ASSIGNMENTS OF GUARANTEED
DEBT.
This Guaranty is a continuing guaranty and shall (a) remain in full force
and effect until released in accordance herewith, (b) be binding upon the
Guarantor and its successors and assigns, and (c) inure, together with the
rights and remedies of the Lender hereunder, to its own benefit and to its
successors and assigns. Without limiting the generality of the foregoing clause
(c), the Lender may, in accordance with the terms of the Loan Agreement, assign
or otherwise transfer all or any portion of its rights and obligations under
the
Loan Agreement to any successor lender, and such successor lender shall
thereupon become vested with all the benefits in respect hereof granted to
the
Lender herein or otherwise, in each case as provided in the Loan
Agreement.
ARTICLE
XVI REINSTATEMENT.
To the extent permitted by law, this Guaranty shall continue to be effective
or
be reinstated if at any time any amount received by the Lender in respect of
the
Obligations is rescinded or must otherwise be restored or returned by the Lender
for any reason whatsoever including, without limitation, upon the occurrence
or
during the pendency of any bankruptcy, reorganization or other similar
proceeding, or any fraudulent transfer or similar proceeding, applicable to
the
Borrower, the Guarantor or any other Person or the assets thereof, or upon
or
during the occurrence of any dissolution, liquidation or winding up of the
Borrower, the Guarantor or any other Person, all as though such amount had
not
been received.
ARTICLE
XVII ENTIRE
AGREEMENT; SUCCESSORS AND ASSIGNS.
This Guaranty constitutes the entire agreement between the parties, supersedes
any prior written and verbal agreements between them, and shall bind and benefit
the parties and their respective successors and permitted assigns.
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ARTICLE
XVIII GOVERNING
LAW.
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS GUARANTY AND ANY DISPUTE
ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY, WHETHER SOUNDING IN
CONTRACT, TORT OR EQUITY OR OTHERWISE, SHALL BE GOVERNED BY THE INTERNAL LAWS
AND DECISIONS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW).
ARTICLE
XIX SUBMISSION
TO JURISDICTION.
ALL DISPUTES BETWEEN THE GUARANTOR AND THE LENDER, WHETHER SOUNDING IN CONTRACT,
TORT OR EQUITY OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE AND FEDERAL COURTS
LOCATED IN NEW YORK, NEW YORK, AND THE COURTS TO WHICH AN APPEAL THEREFROM
MAY
BE TAKEN; PROVIDED, HOWEVER, THAT THE LENDER SHALL HAVE THE RIGHT, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE GUARANTOR IN ANY LOCATION
REASONABLY SELECTED BY THE LENDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER
IN
FAVOR OF THE LENDER. THE GUARANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS, SETOFFS OR CROSS-CLAIMS IN ANY PROCEEDING BROUGHT BY THE LENDER.
THE GUARANTOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE
COURT
IN WHICH THE LENDER HAS COMMENCED A PROCEEDING, INCLUDING, WITHOUT LIMITATION,
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON FORUM NON
CONVENIENS.
ARTICLE
XX SERVICE
OF PROCESS.
THE GUARANTOR HEREBY IRREVOCABLY DESIGNATES CORPORATION SERVICE COMPANY, 0000
XXXXXX XX XXX XXXXXXXX, XXXXX 0000, XXX XXXX, XXX XXXX 00000-0000 AS THE
GUARANTOR’S DESIGNEE AND AGENT TO RECEIVE, FOR AND ON BEHALF OF THE GUARANTOR,
SERVICE OF PROCESS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON SUCH AGENT
AT
ITS ADDRESS WILL BE PROMPTLY FORWARDED BY MAIL TO THE GUARANTOR, BUT THE FAILURE
OF THE GUARANTOR TO RECEIVE SUCH COPY SHALL NOT AFFECT IN ANY WAY THE SERVICE
OF
SUCH PROCESS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE LENDER TO SERVE
LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
ARTICLE
XXI JURY
TRIAL.
THE GUARANTOR (AND BY ITS RECEIPT HEREOF, THE LENDER) HEREBY WAIVES TO THE
FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR
PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO (I) THIS
GUARANTY OR (II) ANY CONDUCT, ACTS OR OMISSIONS OF THE GUARANTOR, THE
LENDER OR ANY OF THEIR DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES,
AGENTS, ATTORNEYS OR OTHER AFFILIATES, IN EACH CASE WHETHER SOUNDING IN
CONTRACT, TORT OR EQUITY OR OTHERWISE. THE GUARANTOR HEREBY AGREES THAT THIS
GUARANTY CONSTITUTES THE WRITTEN CONSENT ON THE GUARANTOR TO SUCH WAIVER AND
MAY
BE FILED WITH THE CLERK OF THE COURT IN THE JURISDICTION IN WHICH ANY ACTION
OR
PROCEEDING IS COMMENCED REGARDING THIS GUARANTY, AS EVIDENCE OF THE GUARANTOR’S
WRITTEN CONSENT TO SUCH WAIVER.
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ARTICLE
XXII LIMITATION
OF LIABILITY.
THE LENDER SHALL HAVE NO LIABILITY TO THE GUARANTOR (WHETHER SOUNDING IN
CONTRACT, TORT OR EQUITY OR OTHERWISE) FOR LOSSES SUFFERED BY THE GUARANTOR
IN
CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO THE TRANSACTIONS
OR
RELATIONSHIPS CONTEMPLATED BY THIS GUARANTY, OR ANY ACT, OMISSION OR EVENT
OCCURRING IN CONNECTION THEREWITH, UNLESS IT IS DETERMINED BY A FINAL AND
NONAPPEALABLE JUDGMENT OR COURT ORDER BINDING ON THE LENDER THAT THE LOSSES
WERE
THE RESULT OF ACTS OR OMISSIONS CONSTITUTING NEGLIGENCE OR WILLFUL MISCONDUCT
OF
THE LENDER. THE GUARANTOR HEREBY WAIVES ALL FUTURE CLAIMS AGAINST THE LENDER
FOR
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES EXCEPT IN THE CASE OF
GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT BY THE LENDER.
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IN
WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed by its
proper and duly authorized officer as of the date first set forth
above.
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GRAND
TOYS INTERNATIONAL, INC.
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| By: | /s/ Xxxxx Xxxxxx | |
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Name: Xxxxx Xxxxxx |
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Title:
Chief Financial Officer
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