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EXHIBIT 10.36
GUARANTY
For and in consideration of all claims which Dresdner Bank Aktiengesellschaft
and or any of its domestic and/or foreign offices and branches (hereinafter
referred to as "Bank") now has or which it may hereafter have against Xxxxxxx 97
Vermogensverwaltungs GmbH mit Sitz in Munchen (Principal Debtor) based on the
mutual business relationship (including but not limited to those arising from
current accounts and bills of exchange), we hereby unconditionally and
irrevocably guarantee jointly and severally with the Principal Debtor as primary
obligor and not merely as surety without any time limitation the punctual
payment to the Bank of the indebtedness and obligations of the Principal Debtor
up to a maximum amount of
DM 5.000.000
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amount
in letters: Deutsche Mark five million
plus accrued interest, commissions, expenses and all costs. The maximum amount
stated above is increased from time to time to the extent that, upon balancing
the account, interest, commissions, costs and expenses are added to the
principal and the newly arrived aggregate principal exceeds the previous maximum
amount of this guaranty.
Our guaranty is given in order to induce the Bank to grant to the Principal
Debtor in its discretion future loans or other credits, to extend the period or
other terms of existing credits, to forbear the exercise of possible rights of
premature termination or changes in conditions and for other good and valid
business considerations.
We hereby waive (i) promptness, diligence, presentment, demand of payment and
protest; (ii) all notices (whether of non-payment, dishonor, protest or
otherwise) with respect to the guaranteed obligations, (iii) notice of
acceptance of this guaranty; (iv) any requirement that the Bank exhaust any
right or take any action against the Principal Debtor, any other obligor in
respect of the guaranteed obligations or any other person or any collateral.
This is a continuing guaranty which shall remain in effect up to its full
aggregate amount until the Bank's claims are fully satisfied, even in the event
(i) of the death, bankruptcy, dissolution, winding up or any other procedure
with a similar effect of the Principal Debtor of (ii) the Bank grants the
Principal Debtor an extension or (iii) waives any security (including but not
limited to liens or other collateral) securing its claims against the Principal
Debtor, regardless whether such rights, liens or securities are already in
existence or subsequently arise. Moreover, no defenses shall arise against
claims based on this guaranty due to the fact that the Bank grants new credits
to the Principal Debtor, delays the collection of the guaranteed claims or
consents to a judicial composition.
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Our liability based on this guaranty shall not be affected by termination of our
position as partner or shareholder of the Principal Debtor and shall also
continue to be fully effective in case of a merger or an amalgamation of the
Principal Debtor.
This guaranty shall not be affected by any circumstance affecting the
obligations of the Principal Debtor to meet is liabilities or by any alteration
in its statutes or by any defect in, or irregular exercises of the borrowing
powers of the Principal Debtor or the invalidity of or defect in any document or
security delivered to the Bank.
This guaranty shall not be affected by temporary repayment of the guaranteed
obligations by the Principal Debtor as long as the credit arrangement continues
and/or a current account is maintained with the Bank; payments made by the
Principal Debtor shall reduce our obligations under this guaranty only to the
extent the remaining claims of the Bank fall below the amount covered by this
guaranty. We hereby waive the benefits of any right of set-off or counterclaim.
We will not exercise any rights which we may acquire by way of subrogation until
all the obligations to the Bank shall have been paid in full. If any amount
shall be paid to us in violation of the preceding sentence, such amount shall be
held in trust for the benefit of the bank and shall forthwith be paid to the
Bank to be credited and applied to the obligations, whether matured or
unmatured.
We hereby represent and warrant that our obligation in respect of this guaranty
has been duly authorized by all corporate, legislative, administrative and other
governmental action, and that we have obtained all such authorizations and
approvals, given such notices and made such filings and taken such other actions
as may be necessary to ensure the enforceability of our obligations under this
guaranty in accordance with its terms.
We will pay the Bank on demand all costs and expenses (including but not limited
to attorney's fees) incurred by the Bank in connection with the enforcement of
our obligations hereunder.
This guaranty shall be binding upon our heirs/successors.
Should any provision contained in this guaranty be found invalid, such
invalidity shall not affect the validity of the remaining provisions of this
guaranty which shall continue in full force and effect.
The place of performance and jurisdictional venue for all obligations arising
from this guaranty shall be Stuttgart, Germany; the courts of this venue shall
have exclusive jurisdiction for claims against the Bank. The Bank, however,
shall alternatively be entitled in its discretion to assert its claims resulting
from this guaranty before any other competent court.
All rights and obligations resulting from this guaranty shall be subject to the
laws of the Federal Republic of Germany.
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IN WITNESS WHEREOF, the guarantor, Decora Industries, Inc., New York, a
corporation organized and existing under and by virtue of the laws of the state
of Delaware, has pursuant to a resolution of the board caused this instrument to
be duly executed in its name, on its behalf and under its corporate seal, signed
by its president and secretary, and delivered to the Bank this 29 day of
September, 1997.
Frankfurt am Main Decora Industries, Inc., New York
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place of issue Guarantor
0 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxx
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Address
Corporate Seal
By , President
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By , Secretary
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Signed and sworn before me this ________ day of ______________, 19____.
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