Exhibit 10.1
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__________________, 2003
To: THE CIT GROUP/COMMERCIAL SERVICES, INC.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
GUARANTY
Re: Decorize, Inc. (the "Client")
0000 Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to certain factoring or financing agreements or
arrangements (herein the "Agreements") between you and the above-named Client.
Each of the undersigned hereby unconditionally jointly and severally guarantees
and agrees to be liable for the full and indefeasible payment and performance
when due of all now existing and future indebtedness, obligations or liabilities
of the Client to you, howsoever arising, whether direct or indirect, absolute or
contingent, secured or unsecured, whether arising under any of the Agreements as
now written or as amended or supplemented hereafter, or by operation of law or
otherwise. Further, each of the undersigned agrees to pay to you on demand the
amount of all expenses (including reasonable attorney's fees) incurred by you in
collecting or attempting to collect any of the Client's obligations to you,
whether from the Client, or from any other obligor, or from the undersigned, or
in realizing upon any collateral; and agrees to pay any interest at the highest
lawful rate on all amounts payable to you hereunder, even if such amount cannot
be collected from the Client. (All of the aforementioned obligations,
liabilities, expenses and interest are hereinafter collectively called the
"Obligations"). To the extent you receive payment on account of the Obligations
guaranteed hereby, which payment is thereafter set aside or required to be
repaid by you in whole or in part, then, to the extent of any sum not finally
retained by you (regardless of whether such sum is recovered from you by the
Client, its trustee, or any other party acting for, on behalf of or through the
Client or its representative), the undersigned's obligation to you under this
Guaranty, as amended, modified or supplemented, shall remain in full force and
effect (or be reinstated) until the undersigned have made payment to you
therefor, which payment shall be due upon demand.
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This Guaranty is executed as an inducement to you to make loans or
advances to the Client or otherwise to extend credit or financial accommodations
to the Client, or to enter into or continue a factoring or financing arrangement
with the Client, and is executed in consideration of your doing or having done
any of the foregoing. Each of the undersigned agrees that any of the foregoing
snail be done or extended by you in your sole discretion, and shall be deemed to
have been done or extended by you in consideration of and in reliance upon the
execution of this Guaranty, but that nothing herein shall obligate you to do any
of the foregoing.
Notice of acceptance of this Guaranty, the making of loans or advances,
or the extension of credit to the Client, the purchase or acquisition of
receivables from the Client, the amendment, execution or termination of any of
the Agreements or any other agreements between you and the Client, and
presentment, demand, protest, notice of protest, notice of non-payment and all
other notices to which the Client or the undersigned may be entitled, and your
reliance on this Guaranty are hereby waived. The undersigned also waive notice
of: changes in terms or extensions of time of payment, the taking and releasing
of collateral or guarantees (including the release of any of the undersigned)
and the settlement, compromise or release of any Obligations, and agree that, as
to each of the undersigned, the amount of the Obligations shall not be
diminished by any of the foregoing. The undersigned also agree that you need not
attempt to collect any Obligations from the Client or other obligors or to
realize upon any collateral, but may require the undersigned to make immediate
payment of Obligations to you when due or at any time thereafter. You shall not
be liable for failure to collect Obligations or to realize upon any collateral
or security therefor, or any part thereof, or for any delay in so doing, nor
shall you be under any obligation to take any action whatsoever with regard
thereto. The undersigned further agrees that his liability is primary and
direct, enforceable without prior resort to any other right, remedy or security
(including, without limitation, any right to require you to first proceed
against the Client under terms of N. C. General Statutes Section 26-7) and shall
be enforceable before or after proceeding against the Client or simultaneously
therewith.
This Guaranty is absolute, unconditional and continuing, regardless of
the validity, regularity or enforceability of any of the Obligations or the fact
that a security interest or lien in any collateral or security therefor may not
be enforceable by you or may otherwise be subject to equities or defenses or
prior claims in favor of others or may be invalid or defective in any way and
for any reason, including any action, or failure to act, on your part. Payment
by the undersigned shall be made to you at your office from time to time on
demand as Obligations become due, and one or more successive or concurrent
actions may be brought hereon against the undersigned (or any one or more of
them) either in the same action in which the Client is sued or in separate
actions. In the event any claim or action, or action on any judgment, based on
this Guaranty, is made or brought against the undersigned, the undersigned agree
not to assert against you any set-off or counterclaim which the Client may have,
and further the undersigned agree not to deduct, set-off, or seek to
counterclaim for or recoup, any amounts which are or may be owed by you to the
undersigned, or for any loss of contribution from any other guarantor.
Furthermore, in any litigation based on the Guaranty in which you and any of the
undersigned shall be adverse parties, the undersigned hereby waive trial by jury
and waive the right to interpose any defense based upon any Statute of
Limitations or any claim of laches and waive the performance of each and every
condition precedent to which the undersigned might otherwise be entitled by law.
Each of the undersigned hereby consent to the in personam jurisdiction of the
courts of North Carolina. In the event that you bring any action or suit in any
court of record of North Carolina or the Federal Government to enforce any or
all liabilities of the undersigned hereunder, service of process may be made on
the undersigned by mailing a copy of the summons to the undersigned at the
address below set forth.
All sums at any time to the credit of the undersigned and any property
of the undersigned on which you at any time have a lien or security interest, or
of which you at any time have possession, shall secure payment and performance
of all Obligations and any and all other obligations of the undersigned to you
however arising. The undersigned shall have no right of subrogation,
indemnification or recourse to any Obligations or collateral or guarantees
therefor, or to any assets of the Client.
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In the event of any breach of, default under or termination of any of
the Agreements between you and the Client, or in the event that the undersigned
shall fail to observe or perform any agreements, warranties, or covenants
contained herein, or on the death of any of the undersigned, or should any of
the undersigned dissolve or cease its business, call a meeting of its creditors,
fail to meet its debts as they mature, commit an act of bankruptcy, have
commenced by or against the undersigned any bankruptcy, insolvency, arrangement,
reorganization, receivership or similar proceeding under any federal or state
law, then the liability of all of the undersigned for the entire Obligations
shall mature even if the liability of the Client therefor does not.
This Guaranty may be terminated as to any one of the undersigned only
upon actual receipt by one of your officers of at least ninety (90) days prior
written notice of termination sent by registered or certified mail; provided
however, that any of the undersigned so terminating this Guaranty shall remain
bound hereunder, and this Guaranty shall continue in full force and effect, with
respect to any and all Obligations created or arising prior to the effective
date of such termination and with respect to any and all extensions, renewals or
modifications of said pre-existing Obligations. Termination as to any one of the
undersigned shall not affect the obligations of any of the other undersigned,
nor relieve the one giving such notice from liability for any post termination
collection expenses or interest. This is a continuing agreement and written
notice as above provided shall be the only means of termination, notwithstanding
the fact that for certain periods of time there may be no Obligations owing to
you by the Client.
Your books and records showing the account between you and the Client
shall be admissible in evidence in any action or proceeding as prima facie proof
of the items therein set forth. Your monthly statements rendered to the Client
shall be binding upon the undersigned (whether or not the undersigned received
copies thereof) and, shall constitute an account stated between you and the
Client, unless you shall have received a written statement of the Client's
exceptions within thirty (30) days after the statement was mailed to the Client.
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This Guaranty embodies the whole agreement of the parties and may not
be modified except in writing, and no course of dealing between you and any of
the undersigned shall be effective to change or modify this Guaranty. Your
failure to exercise any right hereunder shall not be construed as a waiver of
the right to exercise the same or any other right at any other time and from
time to time thereafter and such rights shall be considered as cumulative rather
than alternative. No knowledge of any breach or other nonobservance by any of
the undersigned of the terms and provisions of this Guaranty shall constitute a
waiver thereof, nor a waiver of any obligations to be performed by the
undersigned hereunder.
This instrument is executed and given in addition to, and not in
substitution, reduction, replacement or satisfaction of any other endorsements
or guarantees of the Obligations, now existing or hereafter executed, by any or
all of the undersigned, or others in your favor.
When used in this agreement all pronouns shall, wherever applicable, be
deemed to include the plural as well as the masculine and feminine gender. This
agreement shall inure to the benefit of you, your successors and assigns and any
parent, subsidiary or affiliate of yours, as well as to any concern which you
may now or hereafter factor or finance; shall be binding jointly and severally
upon the undersigned and upon the respective heirs, executors, administrators,
successors and assigns of each of the undersigned; and shall pertain to the
Client and its successors and assigns. This Guaranty may be executed in any
number of counterparts, each of which when so executed shall be deemed an
original and such counterparts shall, together, constitute but one and the same
document.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING DIRECTLY OR
INDIRECTLY OUT OF THIS GUARANTY, OR ANY OTHER AGREEMENT OR TRANSACTION BETWEEN
US OR TO WHICH WE ARE BOTH PARTIES.
This Guaranty shall be governed by and construed in accordance with the
laws of the State of North Carolina.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Guaranty effective as of the date above set forth.
ATTEST: FAITH WALK DESIGNS, INC.
________________________________ By:__________________________________
Secretary Name:_____________________________
Title:____________________________
[CORPORATE SEAL] Address: 00000 Xxxxxx Xxxx, Xxxxx X
Xxxxxxx, Xxxxx 00000
STATE OF_____________________
CORPORATE ACKNOWLEDGEMENT
COUNTY OF ____________________
I, ___________________________________, a Notary Public of the said
State and County, do hereby certify that _______________________________________
personally came before me this day and acknowledged that (s)he is
the ________Secretary of FAITH WALK DESIGNS, INC., a Texas corporation, and that
by authority duly given and as an act of the corporation, the foregoing
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instrument was signed in its name by its______________President, sealed with its
corporate seal, and attested by __________________________, as its______________
Secretary. WITNESS my hand and notarial seal/stamp, this____day of ____________,
2002.
_________________________
Notary Public
My Commission Expires: _________________
