EXHIBIT 10.3
U N L I M I T E D G U A R A N T Y
TO: BankBoston Retail Finance Inc. (the "Bank")
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
RE: Tekno Comix, Inc. ("Borrower")
To induce you to make or continue to make loans, advances, or grant
other financial accommodations to Borrower, in consideration thereof and for
loans, advances or financial accommodations heretofore or hereafter granted by
you to or for the account of the Borrower, the undersigned (the "Guarantor ")
guaranties the payment to you of all sums which may be presently due and owing
and of all sums which shall in the future become due and owing to you from
Borrower, and also guaranties the due performance by the Borrower of all its
obligations under all other present and future contracts and agreements with
you.
Guarantor also agrees:
(1) to indemnify and hold you and your directors, officers,
employees, agents and attorneys harmless against all
obligations, demands and liabilities, by whomsoever
asserted, and against all losses in any way suffered,
incurred or paid as a result of or in any way arising out
of or following or related to transactions with the
Borrower, except for any claim arising out of the gross
negligence or willful misconduct of the Bank;
(2) that this Guaranty shall not be impaired by any
modification, supplement, extension or amendment of any
contract or agreement to which the parties thereto may
hereafter agree, nor by any modification, release or other
alteration of any of the obligations hereby guarantied
(except as otherwise may be expressly set forth in such
modification or release) or of any security therefor, nor
by any agreements or arrangements whatsoever with the
Borrower or anyone else;
(3) that the liability of Guarantor hereunder is direct and
unconditional and may be enforced without requiring you
first to resort to any other right, remedy or security;
(4) that Guarantor shall have no right of subrogation,
reimbursement or indemnity whatsoever, nor any right of
recourse to security for the debts and obligations of the
Borrower to you;
(5) the liability of the Guarantor shall be joint and
several with the liabilities of any other guarantors;
(6) that if the Borrower or Guarantor or any other guarantor
should at any time become insolvent or make a general
assignment, or if a petition in bankruptcy or any
insolvency or reorganization proceedings shall be filed or
commenced by, against or in respect of the Borrower or
Guarantor, or any other guarantor of the obligations
guaranteed
hereby, any and all obligations of Guarantor shall, at
your option, forthwith become due and payable without
notice;
(7) that your books and records showing the account between you
and the Borrower shall be admissible in any action or
proceeding, shall be binding upon Guarantor for the purpose
of establishing the items therein set forth and shall
constitute conclusive proof thereof;
(8) that this Guaranty is, as to Guarantor, a continuing
Guaranty that shall remain effective until expressly
terminated as hereinafter provided;
(9) that this Guaranty may be terminated as to Guarantor only
by giving you sixty (60) days' prior written notice by
registered or certified mail, and thereupon this Guaranty
shall terminate with respect to Guarantor only at the
expiration of said sixty (60) day period, which shall then
be the effective date of termination, and that such
termination shall be applicable only to transactions having
their inception after the effective date of termination and
shall not affect rights and obligations arising out of
transactions having their inception prior to such date;
(10) that the death of Guarantor, if an individual, or the
termination or dissolution of Guarantor, if a trust,
partnership or corporation, shall not effect the
termination of this Guaranty as to Guarantor;
(11) that termination of any guaranty of the obligations
guaranteed hereby by any other guarantor shall not affect
the continuing liability hereunder of Guarantor;
(12) that nothing shall discharge or satisfy the liability of
Guarantor hereunder except the full payment and performance
of all of the Borrower's debts and obligations to you with
interest and costs of collection;
(13) that this Guaranty shall not be affected by any fraudulent,
illegal or improper act by the Borrower, by the legal
incapacity of the Borrower, Guarantor or any other person
obligated to you consequential to transactions with the
Borrower, nor by the invalidation, by operation of law or
otherwise, of all or any part of the obligations guaranteed
hereby, including but not limited to any interest accruable
on the obligations guaranteed hereby during the pendency of
any bankruptcy or receivership proceeding of the Borrower;
(14) that any and all present and future debts and obligations
of the Borrower to Guarantor, including the payment of any
dividends by Borrower to Guarantor (other than payments by
Borrower to Guarantor on account of corporate overhead),
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 Borrower to
you;
(15) that all sums at any time to the credit of Guarantor and
any of the property of Guarantor at any time in your
possession or in possession of any of your banking or
lending affiliates, or in possession of any bank acting as
a participant under any loan agreement between you and
Borrower, may be held by you as security for any and all
obligations of such Guarantor to you, no matter how or when
arising, whether absolute or contingent, whether due or to
become due and whether under this Guaranty or otherwise;
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(16) that if at any time payment of all or any part of the
obligations guarantied hereunder is rescinded or otherwise
must be restored by you to the Borrower or to the creditors
of the Borrower or any representative of the Borrower or
representative of the Borrower's creditors as a voidable
preference or fraudulent conveyance upon the insolvency,
bankruptcy or reorganization of the Borrower or Guarantor,
or to the creditors of Guarantor or any representative of
Guarantor or representative of the creditors of Guarantor
upon the insolvency, bankruptcy or reorganization of
Guarantor or otherwise, this Guaranty shall continue to be
effective or be reinstated, as the case may be, as though
such payments had not been made, and shall survive as an
obligation of the Guarantor, and shall not be discharged or
satisfied by said payment or payments, notwithstanding the
return of the original of this Guaranty to Guarantor or to
the Borrower, or any other apparent termination of
Guarantor's obligations hereunder;
(17) that any rights and remedies available to you under this
Guaranty are cumulative, and not exclusive of any rights
and remedies otherwise available to you;
(18) that your delay or omission in exercising any of your
rights and remedies shall not constitute a waiver of these
rights and remedies, nor shall your waiver of any right or
remedy operate as a waiver of any other right or remedy
available to you. Your waiver of any right or remedy on any
one occasion shall not be considered a waiver of same on
any subsequent occasion, nor shall this be considered to be
a continuing waiver, unless stated therein;
(19) that this Guaranty incorporates all discussions and
negotiations between you and Guarantor concerning the
guaranty and indemnification provided by the undersigned
hereby, and that no such discussions or negotiations shall
limit, modify, or otherwise affect the provisions hereof,
and that no provision hereof may be altered, amended,
waived, canceled or modified, except by a written
instrument executed, sealed and acknowledged by your duly
authorized officer;
(20) that this Guaranty and all documents which have been or may
be hereinafter furnished by Guarantor to you may be
reproduced by you by any photographic, photostatic,
microfilm, xerographic or similar process, and that any
such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative
proceeding (whether or not the original is in existence and
whether or not such reproduction was made in the regular
course of business);
(21) that Guarantor shall deliver to Lender Form 10-Q Quarterly
reports, Form 10-K Annual Reports, and Form 8-K Current
Reports, and any other filings made by Guarantor with the
Securities and Exchange Commission, if any, within fifteen
(15) days after the same are filed, or any other
information that is provided by Guarantor to its
shareholders generally; and
(22) that annually, within ninety (90) days following the end of
Guarantor's fiscal year, the Guarantor shall furnish the
Lender with an original signed counterpart of Guarantor's
annual financial statement, which statement shall have been
prepared on a "consolidated" and "consolidating" basis by,
and bearing the unqualified opinion of, Guarantor's
independent certified public accountants (i.e. said
statement shall be "certified " by such accountants). Such
annual statement shall include, at a minimum (with
comparative information for the then prior fiscal year) a
balance sheet, income statement, and statement of changes
in cash flows. Each annual statement shall be accompanied
by such accountant's Certificate indicating that to the
best knowledge of such accountant, no event has occurred
which is or which, solely with the passage of
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time or the giving of notice (or both) would be, an Event
of Default under the terms of that certain Loan and
Security Agreement by and between Tekno Comix, Inc. and
Lender dated as of December 30, 1997.
Guarantor waives: notice of acceptance hereof, presentment and protest
of any instrument and notice thereof, notice of default and all other notices to
which Guarantor might otherwise be entitled; and any and all defenses including
without limitation any and all defenses which the Borrower or any other party
may have to the fullest extent permitted by law.
This Guaranty, all acts and transactions hereunder, and the rights and
obligations of the parties hereto shall be governed, construed and interpreted
according to the laws of the Commonwealth of Massachusetts, shall be binding
upon the heirs, executors, administrators, successors and assigns of Guarantor
and shall inure to the benefit of your successors and assigns.
If any provision of this Guaranty is found to be invalid, illegal or
unenforceable, the validity of the remainder of the Guaranty shall not be
affected.
Guarantor irrevocably submits to the nonexclusive jurisdiction of any
federal or state court sitting in Massachusetts, over any suit, action or
proceeding arising out of or relating to this Guaranty. Guarantor irrevocably
waives, to the fullest extent it may effectively do so under applicable law, any
objection it may now or hereafter have to the laying of the venue of any such
suit, action or proceeding brought in any such court and any claim that the same
has been brought in an inconvenient forum. Guarantor irrevocably appoints the
Secretary of State of Florida as its authorized agent to accept and acknowledge
on its behalf any and all process which may be served in any such suit, action
or proceeding, consents to such process being served (i) by mailing a copy
thereof by registered or certified mail, postage prepaid, return receipt
requested, to Guarantor's address shown below or as notified to the Bank and
(ii) by serving the same upon such agent, and agrees that such service shall in
every respect be deemed effective service upon Guarantor.
GUARANTOR AND BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, WAIVE ANY
AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN CONNECTION WITH
THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, ALL MATTERS CONTEMPLATED
HEREBY AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH. GUARANTOR CERTIFIES THAT
NEITHER THE BANK NOR ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BANK WOULD NOT IN THE EVENT OF ANY
SUCH PROCEEDING SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY.
INTENTIONALLY LEFT BLANK
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Executed under seal and dated as of December 30, 1997.
Witness Guarantor:
Big Entertainment, Inc.
/s/ [ILLEGIBLE] By: /s/ Xxxxx Xxxxx
------------------------- ------------------------------------
Xxxxx Xxxxx, Chief Financial Officer
Address: 0000 Xxxxxx Xxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
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