EXHIBIT 10.3
Xxx Xxxxxxxx Xxxxx XXXXXXXX
Xxxxxxxxxx, Xxxxx Xxxxxx 00000 (FOR EXECUTION BY CORPORATIONS)
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and in consideration of any and all loans,
advances, extensions of credit, equipment financing and equipment leases now or
hereafter made or extended by CITIZENS LEASING CORPORATION, a Rhode Island
corporation with its offices at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx
00000 to, for the account of or on behalf of The J. Xxxx Group, Inc.
(hereinafter called the "Obligor"), and as an inducement for Citizens Leasing
Corporation to make future loans, advances and extensions of credit to, and to
enter into future equipment financing and equipment leases with Obligor, the
undersigned (hereinafter called the "Guarantors"), hereby jointly and severally,
unconditionally and absolutely, guarantee to Citizens Leasing Corporation,
Citizens Bank of Massachusetts, and any of their affiliates (collectively "CLC")
the full and prompt payment and performance by Obligor of all obligations which
Obligor now or hereafter may have to CLC under the Master Security Agreement
dated as of December 23, 1998 and the promissory notes now or hereafter issued
pursuant to such agreement (the "Agreements") and the full and prompt payment
when due of all rentals, principal, interest, charges and all other sums which
Obligor may now or hereafter owe to CLC, arising under the Agreements, howsoever
evidenced, whether secured or unsecured, and hereby jointly and severally agree
to indemnify CLC against any losses CLC may sustain and any expenses it may
incur as a result of any default by Obligor under the Agreements, or as a result
of the occurrence of any default under or as defined in the Agreements and/or as
the result of the enforcement or attempted enforcement by CLC of any of its
rights against the Guarantors hereunder.
This Guaranty is a continuing, unconditional and absolute guaranty of
payment and performance. If for any reason any rental payment installment,
principal or interest payment or any other sum or indebtedness now or hereafter
owing by Obligor to CLC under the Agreements shall not be paid promptly when
due, Guarantors will forthwith pay such sum to CLC, without regard to any
counterclaim, set-off, deduction or defense of any kind which Obligor or
Guarantors may have or assert, and without abatement, suspension, deferment or
reduction on account of any occurrence whatsoever. The Guarantors hereby waive
notice of and consent to the leasing and subleasing or financing, as applicable,
of all equipment and other property now or hereafter leased or financed under or
described in the Agreements, and any schedule(s), rider(s), individual leasing
record(s) or acceptance form(s) executed pursuant thereto, to any subleasing or
other use or disposition of any equipment or collateral (regardless of whom any
such sublessee or user may be), to all of the provisions of the Agreements, to
any amendments thereof, to any actions taken thereunder, and to the execution by
Obligor of the above-referenced Agreements and of any other agreements,
documents and instruments now or hereafter executed by Obligor in connection
therewith. The Guarantors further waive the following: notice of incurring of
indebtedness and obligations by Obligor; acceptance of this Guaranty by CLC;
presentment and demand for payment, protest, notice of protest and notice of
dishonor or non-payment of any instrument evidencing the indebtedness or
obligations of Obligor; any right to require suit against Obligor or any other
party before enforcing this Guaranty; any right to have security applied before
enforcing this Guaranty; any and all rights Guarantors may have against the
Obligor by way of subrogation, reimbursement, set-off, claim or otherwise
arising out of the payment or performance by Guarantors of any of Obligor's
obligations to CLC; all defenses which might constitute a legal or equitable
discharge of a surety or guarantor; and all other notices and demands otherwise
required by law which the Guarantors may lawfully waive. In the event this
Guaranty is enforced by suit or otherwise, the Guarantors will reimburse CLC
upon demand for all expenses incurred in connection therewith, including,
without limitation, reasonable attorneys' fees.
The Guarantors represent and warrant that they are familiar with, and
will continue at all times to be familiar with, the business and condition of
the Obligor, and the Guarantors hereby waive notice of any change in the
financial condition of Obligor which is known to CLC.
Guarantors' obligations hereunder shall not be released, discharged,
terminated or impaired in any manner whatsoever, irrespective of the lack of any
notice or consent of the Guarantors, by any of the following: (a) new agreements
or obligations of Obligor with or to CLC; (b) amendments, indulgences,
extensions, modifications, renewals or waivers of default as to any existing or
future agreements or obligations of Obligor or third parties with or to CLC, or
extensions of credit by CLC to Obligor; (c) adjustments, compromises or releases
of any obligations of Obligor, any Guarantor or other parties, or exchanges,
releases, dispositions or sales of any security of Obligor, any Guarantor or
other parties; (d) invalidity, irregularity, defect, or unenforceability, for
any reason, of any provision of any of the Agreements, or of any instrument or
writing, or acts or omissions by CLC or Obligor; (e) interruptions in the
business relations between CLC and Obligor; (f) voluntary or involuntary
bankruptcy (including a reorganization in bankruptcy) of Obligor or entry of an
order for relief against or with respect to the Obligor under Title 11 of the
United States Code; (g) composition, extension, moratoria or other forms of
debtor relief granted to Obligor pursuant to law presently in force or hereafter
enacted; (h) payment of any or all obligations and indebtedness by Obligor in
the event such payment is invalidated or avoided by a trustee, custodian or
receiver of Obligor; (i) the death or dissolution of Obligor; and (j) the
reorganization, merger or consolidation of Obligor into or with another entity,
corporate or otherwise, or the sale or disposition of all or substantially all
of the capital stock, business or assets of Obligor to any other person or
party.
Without limiting the generality of the foregoing, Guarantors hereby
expressly agree that this Guaranty shall apply to all indebtedness and
obligations owed by the Obligor to CLC under the Agreements, whether or not such
indebtedness and obligations are currently outstanding or advanced to the
Obligor after the date hereof. Guarantors hereby waive any right to receive
notice of, or consent to, the incurring of any additional indebtedness and
obligations by Obligor; and CLC may advance additional funds to the Obligor
pursuant to the Agreements (as the same may be amended or modified from time to
time) in reliance upon the fact that this Guaranty will apply to such additional
indebtedness and obligations, and without the necessity of CLC obtaining any
reaffirmation of this Guaranty.
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For the purposes of this Guaranty and indemnity, all sums owing to CLC
by Obligor under the Agreements shall be deemed at CLC's election, and without
notice, to have become immediately due and payable if (a) Obligor defaults in
any of its obligations or indebtedness to CLC or if there shall occur default
under any of the Agreements; (b) a petition under any Chapter of the Bankruptcy
Code, as amended, or for the appointment of a receiver, trustee or custodian of
any part of the property or business of Obligor be filed by or against the
Obligor or there shall enter an order for relief against or with respect to the
Obligor under Title 11 of the United States Code; (c) Obligor makes a general
assignment for the benefit of creditors, suspends business or commits any act
amounting to a business failure; or (d) a default shall occur by any of the
Guarantors hereunder.
Each Guarantor further covenants and agrees that during such time as
this Guaranty is in effect, other than as part of the merger of the Guarantor
with or into any parent (including the Obligor), subsidiary or company under
common control with the Guarantor (each a "Corporate Reorganization"), it will
make no substantial change in its financial status, nor cause or suffer any
substantial diminution of its net worth as the same exists on the date hereof,
nor enter into any transaction which might materially and adversely affect its
ability to perform under this Guaranty. In the event of any breach of said
covenants and agreements, or in the event of any Guarantor's insolvency or
bankruptcy, all indebtedness and obligations of Obligor, regardless of their
terms, shall at CLC's election, and without notice, be deemed for the purposes
of this Guaranty to have become immediately due and payable, and at CLC's
election, the Guarantors shall promptly pay CLC the entire amount of said
indebtedness and obligations of Obligor, and CLC shall be entitled, to take any
action deemed necessary or advisable to enforce this Guaranty, including,
without limitation, the enjoining of any breach or threatened breach of this
paragraph.
This Guaranty is assignable to CLC without notice to the Guarantors,
but may not be assigned by the Guarantors other than as part of a Corporate
Reorganization in which case the surviving entity of such Corporate
Reorganization shall be bound by the terms of this Guaranty as if originally a
signatory hereto. The term "Guarantors" as used herein shall, if this Guaranty
is signed by more than one party, mean the "Guarantors and each of them" and
each undertaking herein contained shall be their joint and several undertaking.
Each reference to the "Guarantors" shall be deemed to include the successors and
assigns of the Guarantors, all of whom shall be bound by the provisions of this
Guaranty. This Guaranty shall be construed liberally in favor of CLC and shall
inure to the benefit of its successors and assigns. Legal rights and obligations
hereunder shall be governed by and construed in accordance with the laws of the
State of Rhode Island. Wherever the context so requires herein, the singular
number includes the plural, and the plural number includes the singular.
EACH GUARANTOR, TO THE EXTENT IT MAY LAWFULLY DO SO, HEREBY CONSENTS
AND SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF RHODE ISLAND AND
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND, AS WELL AS TO THE
JURISDICTION OF ALL COURTS FROM WHICH AN APPEAL MAY BE TAKEN THEREFROM, FOR THE
PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF ANY OF ITS
OBLIGATIONS UNDER OR WITH RESPECT TO THIS GUARANTY, AND EXPRESSLY WAIVES ANY AND
ALL OBJECTIONS IT MAY HAVE TO VENUE IN ANY OF SUCH COURTS. EACH GUARANTOR HEREBY
EXPRESSLY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO
ANY MATTER ARISING OUT OF THIS GUARANTY. EACH GUARANTOR HEREBY ACKNOWLEDGES AND
AGREES THAT PERSONAL SERVICE OF PROCESS IN ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF ANY OF ITS OBLIGATIONS UNDER OR WITH RESPECT TO THIS GUARANTY MAY
BE MADE BY MAILING A COPY OF THE SUMMONS AND COMPLAINT TO SUCH GUARANTOR AT ITS
BUSINESS ADDRESS DESIGNATED IN ITS STATE OF INCORPORATION BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED.
Each undersigned corporation warrants for itself that it is authorized
by law and by its articles of incorporation and by-laws to execute this
Guaranty, and the officers signing the same warrant that they are specifically
authorized thereunto by a duly adopted resolution of the board of directors or
shareholders of the corporation.
IN WITNESS WHEREOF, the Guarantors have caused this instrument to be
executed this 30th day of May, 2003.
WITNESS: J. Xxxx Direct, Inc.
0 Xxxxxxxxxxxx Xxxx
Xxxxxx, XX 00000
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxx
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Title President
Guarantor's Employer I.D. No. 00-0000000
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