Exhibit 10.36
CORPORATE GUARANTY
UNLIMITED
Century Business Credit Corporation
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: BREAKING WAVES, INC. ("CLIENT")
XXXXXXX.XXX, INC.("GUARANTOR")
Gentlemen:
In order to induce you to enter into a certain Factoring Agreement or
Security Agreement (Account Receivable-Financing) or both, as the case may be,
dated August __, 2000 (the "Agreement") with the Client (hereinafter referred to
as the "Client") and/or to induce you to refrain at this time from terminating
said Agreement and/or in consideration of any loans, advances, payment,
extensions of credit, benefits or financial accommodations heretofore or
hereafter made, granted or extended by you or which you have or will become
obligated to make, grant or extend to or for the account of the Client, the
undersigned Guarantor (hereinafter referred to as the "Guarantor"), guarantees
without deduction by reason of setoff, defense, or counterclaim of any party, or
loss of contribution from any co-guarantor hereunder or otherwise, the due
performance of all of the Client's contracts and agreements with you under the
Agreement or otherwise, both present and future and any and all subsequent
renewals, extensions, continuations, modifications, supplements and amendments
thereof, and the prompt payment to you with interest of any and all sums which
may be presently due and owing or which shall in the future become due and owing
to you from the Client. This joint and several primary liability shall include
but not be limited to any and all existing and future obligations and
indebtedness of the Client, whether acquired by you by assignment, transfer, or
otherwise, and whether or not such obligations and indebtedness shall arise
under the Agreement or under any other contract or agreement or any renewal,
modification, supplement or amendment thereof, or shall be represented by or
payable under instruments of indebtedness or otherwise, and whether or not such
obligations and indebtedness shall be acquired by you from any concern which is
your parent or subsidiary or the co-subsidiary of your parent or for which you
may now or in the future act as a factor and/or lender, and in addition, the
Guarantor shall be liable to you for attorney's fees equal to fifteen percent
(15%) of the unpaid indebtedness and obligations of the Client to you, if any
claim hereunder is referred to an attorney for collection.
The Guarantor hereby waives notice of acceptance hereof and of all notices
and demands of any kind to which the Guarantor may be entitled, including
without limitation, notice of adverse change in Client's financial condition or
of any other fact which might materially increase the risk of the Guarantor; all
demands of payment on, and notice of nonpayment, protest and dishonor to the
Guarantor, or the Client, or the makers, or endorsers of any notes and other
instruments for which the Guarantor is or may be liable hereunder. All sums at
any time to the credit of the Guarantor and any property of the Guarantor in
your possession shall be deemed held by you as security for any and all of the
Guarantor's obligations to you and to any company or companies which may now or
at any time be your parent or subsidiary, or the co-subsidiary of your parent,
no matter how or when arising and whether under this or any other instrument,
agreement or otherwise. The Guarantor further waives notice of and hereby
consents to any agreement or arrangements whatever with the Client or any one
else including, without limitation, agreements and arrangements for payment
extension, subordination, composition, arrangement, discharge or release of the
whole or any part of said obligations or of said indebtedness, contracts or
agreements or other guarantors, or of the making of any election of rights or
remedies you may deem desirable under any Bankruptcy Code, or for the change or
surrender of any and all security, or for compromise, whether by way of
acceptance of part payment or of dividends or in any other way whatsoever, and
the same shall in no way impair the Guarantor's liability hereunder. Nothing
shall discharge or satisfy the liability of the Guarantor hereunder except the
full performance and payment of the said obligations and indebtedness with
interest. The Guarantor expressly waives any and all rights of subrogation,
reimbursement, indemnity, exoneration, contribution or any other claim which the
Guarantor may now or hereafter have against the Client or any other person
directly or contingently liable for the obligations and indebtedness guaranteed
hereunder, or against or with respect to the Client's property (including,
without limitation property collateralizing its obligations and indebtedness to
you), arising from the existence and performance of this guaranty unless and
until all obligations and debts of client to you have been paid and performed in
full. Any and all present and future debts and obligations of the Client to the
Guarantor is hereby postponed in favor of, and subordinated until the full
payment and performance of, all present and future debts and obligations of the
Client to you except that (i) as long as no default shall have occurred and be
continuing under the Agreement and (ii) you have consented to such payments,
Client may pay and the Guarantor may receive payments with respect to debts and
obligations of the Client to the Guarantor. The Guarantor agrees that if the
Client, the Guarantor or any other guarantor should at any time become
insolvent, or make a general assignment, or if a proceeding in bankruptcy or any
insolvency or reorganization proceeding shall be filed or commenced by, or in
respect of the Client, the Guarantor or any other guarantor, any and all
obligations of the Guarantor shall, at your option, forthwith become due and
payable without notice. If you receive any payment or payments on account of the
liabilities guaranteed hereby, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver, or any other party under
any bankruptcy act or code, state or federal law, common law or equitable
doctrine, then to the extent of any sum not finally retained by you, the
obligations of the Guarantor to you shall be reinstated and this Agreement shall
remain in full force and effect (or be reinstated) until the Guarantor shall
have made payment to you, which payment shall be due on demand.
Your books and records showing the account between you and the Client shall
be admissible in evidence in any action or proceeding, shall be binding upon the
Guarantor for the purpose of establishing the items therein set forth and shall
constitute prima facie proof thereof. This instrument is and shall be construed
to be an absolute, continuing, unconditional and unlimited guaranty of payment,
and shall continue in full force and effect, until terminated by the actual
receipt by you from the Guarantor by registered mail of written notice of
termination; such termination shall be effective on the ninetieth day after such
actual receipt by you and shall be applicable only to transactions having their
inception thereafter, and rights and obligations arising out of transactions
having their inception prior to such termination shall not be affected.
Termination by one or more guarantors shall not affect the liability of such of
the guarantors as do not give such notice of termination. Guarantor acknowledges
that (i) no oral representations, including any representations to extend credit
or provide other financial accommodations to Client have been made by you to
induce Guarantor to enter into this guaranty; and (ii) any extension of credit
to the Client shall be governed solely by the provisions of the Agreement.
This guaranty shall be enforceable before or after proceeding against the
Client or simultaneously therewith, and without recourse to any security, and
shall be effective regardless of the subsequent incorporation, merger or
consolidation of the Client, or any change in the composition, nature, personnel
or location of the Client. This guaranty shall inure to and shall be enforceable
by you, any concern which is or may at any time be your parent or subsidiary or
the co-subsidiary of your parent and your and their successors and assigns and
shall be binding upon the successors and assigns of the Guarantor. THE GUARANTOR
DOES HEREBY WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED HEREON. THIS INSTRUMENT CANNOT BE CHANGED OR TERMINATED ORALLY,
AND SHALL BE GOVERNED, CONSTRUED AND INTERPRETED AS TO VALIDITY, ENFORCEMENT AND
IN ALL OTHER RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE
JURISDICTION OF SUCH STATE'S COURTS BEING HEREBY CONSENTED TO FOR ALL PURPOSES
IN CONNECTION HEREWITH.
Dated: August 14, 2000
/s/_____________________ XXXXXXX.XXX, INC.
Witness Guarantor
By: /s/Xxxxxx Xxxxxxxx
XXXXXX XXXXXXXX
PRESIDENT
00 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On the 14th day of August 2000, before me personally came Xxxxxx
Xxxxxxxx to me known, who being by me duly sworn, did depose and say that he
resides at 00-00 Xxxxxxxxxxx Xxxx., Xxxxxx Xxxx., Xxxxxx Xxxxx, Xxx Xxxx 00000
that he is the President of XxxxXxx.Xxx, Inc. the corporation described in and
which executed the foregoing instrument; that (s)he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the board of directors of said corporation
and that (s)he signed his/her name thereto by like order.
/s/________________________
Notary Public
