EXHIBIT 10.23
FTC
COMMERCIAL CORP.
GUARANTY
Los Angeles, California
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, BLUE HOLDINGS, INC. and ANTIK DENIM, LLC (hereinafter
collectively and individually referred to as "Guarantor") hereby unconditionally
and irrevocably deliver this Guaranty to FTC COMMERCIAL CORP. (hereinafter
referred to as "FTC") and hereby unconditionally and irrevocably guarantee to
FTC, and any transferee of this Guaranty or of any liability guaranteed hereby,
the full and prompt payment and performance of all present and future
liabilities, obligations and indebtedness of TAVERNITI SO JEANS, LLC
(hereinafter referred to as the "Principal") to FTC irrespective of their
nature, the time they arise, when due, whether absolute or contingent,
liquidated or unliquidated, legal or equitable, whether the Principal is liable
individually or jointly or with others, and whether recovery thereof is or
becomes barred by a statute of limitations or otherwise becomes unenforceable
(individually a "liability" and collectively the "liabilities"). This Guaranty
is a guaranty of prompt payment and performance (and not merely a guaranty of
collection). If any liability guaranteed hereby is not paid or performed when
due, Guarantor hereby agrees to and will immediately pay or perform same,
without resort by the holder thereof to any other person or party.
The liabilities include all renewals or extensions in whole or in part of any of
liabilities and include all present and future obligations and liabilities of
the Principal to FTC under the Factoring Agreement dated November 22, 2004 and
various related instruments, documents and agreements, as amended, modified or
supplemented from time to time (hereinafter collectively and separately referred
to as the "Factoring Agreements") between FTC and the Principal and the full
performance by Principal of all things to be done by Principal pursuant to the
Factoring Agreements and shall further include any and all damages, losses,
costs, interest, charges, attorney's fees and expenses of every kind, nature and
description suffered or incurred by FTC, arising in any manner out of or in any
way connected with, or growing out of, the liabilities. As used herein, the term
person includes natural persons, partnerships, limited liability companies,
trusts, and incorporated and unincorporated entities and associations of every
kind.
The obligation of Guarantor to FTC hereunder is primary, unlimited, absolute and
unconditional. Any payment of Guarantor hereunder may be applied to any of the
liabilities which FTC may choose. The obligation of Guarantor hereunder is in
addition to and shall not prejudice or be prejudiced by any other agreement,
instrument, surety, security or guaranty (including any agreement, instrument,
surety or guaranty signed by Guarantor) which FTC may now or hereafter hold
relative to any of the liabilities. Guarantor, if more than one, shall be
jointly and severally liable hereunder and the term "Guarantor" wherever used
herein shall mean Guarantor or any one or more of them. Any entity signing this
Guaranty shall be bound hereby, whether or not any other entity signs this
Guaranty at any time.
FTC and Guarantor acknowledge that there may be future advances by FTC to the
Principal (although FTC may be under no obligation to make such advances) and
that the number and amount of the liabilities are unlimited and may fluctuate
from time to time hereafter. Guarantor expressly agrees that Guarantor's
obligation hereunder shall remain absolute, primary and unconditional
notwithstanding such future advances and fluctuations, if any, and agree that,
in any event, this Guaranty is a continuing guaranty and shall remain in force
at all times hereafter, whether there are any liabilities outstanding or not,
until all originals hereof are returned to Guarantor by FTC or until a written
notice from Guarantor terminating this Guaranty has been received and
acknowledged by FTC, but such termination shall not release Guarantor from
liability for payment of (i) any and all liabilities (as hereinbefore defined)
then in existence, (ii) any renewals or extensions thereof, in whole or in part,
whether such renewals or extensions are made before or after such termination,
and (iii) any damages, losses, costs, interest, charges, attorney's fees or
expenses then or thereafter incurred in connection with said liabilities or any
renewals or extensions thereof.
As security for the payment of the liabilities and the obligations of Guarantor
hereunder, Guarantor hereby assigns and grants a security interest to FTC in (i)
any existing or hereafter created lien or security interest in favor of
Guarantor in any property of the Principal; and (ii) all property of Guarantor
in or coming into the possession, control, or custody of FTC, or in which FTC
has or hereafter acquires a lien, security interest, or other right. Guarantor
hereby agrees that any rights Guarantor may now or hereafter have in any
collateral securing any of the liabilities or against the Principal or any
property of the Principal, including rights arising by virtue of subrogation or
otherwise, shall be subordinate and junior to FTC's rights to said collateral or
property and to FTC's indefeasible right to the prior payment of the
liabilities. Guarantor further authorizes FTC, without notice or demand, to
apply any indebtedness due or to become due to Guarantor from FTC in
satisfaction of any of the liabilities and Guarantor's obligations hereunder,
including, but not limited to, the right to set-off against any deposits of
Guarantor with FTC.
Guarantor hereby consents and agrees that, at any time or times, without notice
to or further approval of Guarantor or the Principal, and without in any way
affecting the obligations of Guarantor hereunder, FTC may, with or without
consideration, (i) release, compromise, or agree not to sue, in whole or in
part, the Principal, Guarantor or any other obligor, guarantor, endorser or
surety of the Factoring Agreements any of the liabilities; (ii) waive, rescind,
renew, extend, modify, increase, decrease, delete, terminate, amend; or
accelerate in accordance with its terms, either in whole or in part, the
Factoring Agreements or any of the terms thereof, any of the liabilities, or any
agreement, covenant, condition, or obligation of or with the Principal,
Guarantor, or any other obligor, guarantor, endorser or surety upon the
Factoring Agreements and any of the liabilities; and (iii) apply any payment
received from the Principal, Guarantor or any other obligor, guarantor, endorser
or surety upon any of the liabilities to any of the liabilities which FTC may
choose.
Guarantor hereby consents and agrees that FTC may at any time, either with or
without consideration, surrender, release or receive any property or other
security of any kind or nature whatsoever held by FTC or any person on its
behalf or for its account securing any indebtedness of the Principal or any
liability, or substitute any collateral so held by FTC for other collateral of
like kind, or of any kind, without notice to or further consent from Guarantor,
and such surrender, receipt, release or substitution shall not in any way affect
the obligation of Guarantor hereunder. FTC shall have full authority to adjust,
compromise and receive less than the amount due upon any such collateral, and
may enter into any accord and satisfaction agreement with respect to the same as
may seem advisable to FTC without affecting the obligation of Guarantor
hereunder, which shall remain absolute, primary and unconditional. FTC shall be
under no duty to undertake to collect upon such collateral or any part thereof,
and shall not be liable for any negligence or mistake in judgment in handling,
disposing of, obtaining, or failing to collect upon, or perfecting a security
interest in, any such collateral. The obligation of Guarantor to FTC hereunder
shall remain absolute and unconditional notwithstanding any failure to perfect
or to realize upon any security interest or collateral securing any of the
liabilities, including but not limited to any security interest granted by
Guarantor or the Principal's liabilities under the Factoring Agreements, and
notwithstanding the unenforceability of all or any part of the Factoring
Agreements and any of the liabilities.
This Guaranty covers all liabilities to FTC actually or purported to be made on
behalf of the Principal by any officer, agent or partner of said Principal,
without regard to the actual authority of such officer, agent or partner to bind
the Principal, and without regard to the capacity of the Principal or whether
the organization or charter of the Principal is in any way defective.
Guarantor hereby waives notice of acceptance of this Guaranty and the Factoring
Agreements, and of the creation, extension or renewal of any liability of the
Principal to which either relates and of any default by the Principal. Guarantor
hereby waives presentment, demand, protests and notice of dishonor of any of the
liabilities, and hereby waive any failure to promptly commence suit against any
party thereto or liable thereon and give any notice to or make any claim or
demand upon Guarantor or the Principal. No act, failure to act, or omission of
any kind on the part of Guarantor, the Principal, FTC or any other person shall
be a legal or equitable discharge or release of Guarantor from their obligations
hereunder unless agreed to hereafter in writing by FTC. This Guaranty shall not
be affected by any change which may arise by reason of the dissolution,
liquidation, merger, consolidation, reorganization or death of Guarantor, or of
any member of Guarantor, or of the Principal. Guarantor further agrees that this
instrument shall continue to be effective or be reinstated as the case may be,
if at any time payment, or any part thereof, of the principal of or interest on
any of the liabilities is rescinded or must otherwise be restored or returned by
FTC upon the insolvency, bankruptcy or reorganization of the Principal, or
otherwise, all as though such payment has not
been made. All obligations of the Principal to Guarantor which presently or in
the future may exist are hereby subordinated to the liabilities.
To the maximum extent permitted by law, Guarantor waives (a) all of the rights
which may be waived by a guarantor pursuant to the provisions of Section 2856 of
the Civil Code of the State of California, (b) all rights and defenses arising
out of an election of remedies (c) all rights and defenses described in Sections
2787 to 2855, inclusive, of the Civil Code of the State of California, (d) all
rights to require FTC to proceed against, enforce or exhaust any security for
the liabilities or to marshal assets or to pursue any other remedy; (e) all
defenses arising by reason of any disability or other defense of the Principal,
the cessation for any reason of the liability of the Principal, any defense that
any other indemnity, guaranty or security was to be obtained, any claim that FTC
has made Guarantor's obligations more burdensome or more burdensome than the
Principal's obligations, and the use of any proceeds of the liabilities other
than as intended or understood by Guarantor or the Principal; (f) all notices or
demands to which Guarantor may otherwise be entitled; (g) all conditions
precedent to the effectiveness of this Guaranty; (h) all rights to file a claim
in connection with the liabilities in any bankruptcy, reorganization or other
insolvency proceeding involving the Principal; (i) all rights to require FTC to
enforce any of its remedies; and (j) until the liabilities are satisfied or
fully paid with such payment not subject to return: (i) all rights of
subrogation, contribution, indemnification or reimbursement, (ii) all rights of
recourse to any assets or property of the Principal, or to any collateral or
credit support for the liabilities, (iii) all rights to participate in or
benefit from any security or credit support FTC may have or acquire, and (iv)
all rights, remedies and defenses Guarantor may have against the Principal.
Guarantor waives all rights and defenses that Guarantor may have by reason of
any election of remedies by FTC, even though such election may destroy any
rights of subrogation which Guarantor may have, and any rights or defenses
Guarantor may have because the Principal's debt or this Guaranty is secured by
real property or an estate for years, including but not limited to any rights or
defenses based upon, directly or indirectly, the application of Section 580a,
580b, 580d or 726 of the Code of Civil Procedure to any of the liabilities or
this Guaranty.
This Guaranty shall bind and inure to the benefit of FTC, and its successors and
assigns, and likewise shall bind Guarantor, and its successors and assigns. FTC
shall have the right at any time to assign the liabilities and this Guaranty,
without notice to or the consent of Guarantor or the Principal, and may disclose
to any prospective or actual purchaser of all or part of the liabilities any and
all information FTC has or acquires concerning Guarantor, this Guaranty, or any
security for this Guaranty. Guarantor expressly agrees, acknowledges, represents
and warrants that FTC's entering into the Factoring Agreements with the
Principal is a direct and significant benefit to Guarantor.
If any legal action or actions are instituted by FTC to enforce any of its
rights against Guarantor hereunder, then Guarantor agrees to pay FTC all
expenses incurred by FTC relative to such legal action or actions, including,
but not limited to, court costs and attorneys' fees, plus fifteen percent (15%)
of the total amount of principal and accrued interest then due FTC hereunder.
FTC is authorized and empowered to proceed against Guarantor without joining the
Principal. All of said parties may be sued together, or any of them may be sued
separately without first or contemporaneously suing the others. There shall be
no duty or obligation upon FTC, whether by notice or otherwise, (i) to proceed
against the Principal, Guarantor, any other guarantor or surety or any security,
(ii) to initiate any proceeding or exhaust any remedy against the Principal,
Guarantor, any other guarantor or surety or any security, or (iii) to give any
notice to Guarantor or the Principal, whatsoever, before bringing suit,
exercising any rights to any collateral or security, or instituting proceedings
of any kind against the Principal or Guarantor.
Guarantor hereby ratifies, confirms and adopts all the terms, conditions,
agreements and stipulations of the Factoring Agreements and all notes and other
evidences of the liabilities heretofore or hereafter executed. Without in any
way limiting the generality of the foregoing, Guarantor waives and renounces any
and all exemption rights Guarantor may have under or by virtue of the
Constitution or laws of California, any other state, or the United States, as
against the obligation hereby created; and Guarantor does hereby transfer,
convey and assign, and direct any trustee in Bankruptcy or receiver to deliver
to FTC or holder hereof, a sufficient amount of property or money in any
exemption that may be allowed to Guarantor to pay any liability guaranteed
hereby in full and all costs of collection. Guarantor also waives and renounces
any defense to any of the liabilities which may be available to or could be
asserted by the Principal, except for payment. Guarantor hereby represents and
warrants that this Guaranty has been duly authorized by Guarantor, that the
person(s) executing and delivering this Guaranty on behalf of Guarantor have
full
authority to do so and that this Guaranty is a valid and binding legal
obligation of Guarantor, enforceable according to its terms.
All FTC's rights and remedies are cumulative and those granted hereunder are in
addition to any rights and remedies available to FTC under law. If any provision
of this Guaranty or the application thereof to any person or circumstances
shall, to any extent, be invalid or unenforceable, the remainder of this
Guaranty or the application of such provision to persons or circumstances other
than those as to which this Guaranty is held invalid or unenforceable shall not
be affected thereby, and each provision of this Guaranty shall be valid and
enforceable to the full extent permitted by law. The failure or forbearance of
FTC to exercise any right hereunder, or otherwise granted to FTC by law or
another agreement, shall not affect the obligation of Guarantor hereunder and
shall not constitute a waiver of said right. This Guaranty contains the entire
agreement between the parties, and no provision hereof may be waived, modified,
or altered except by a writing executed by ▇▇▇▇▇▇▇▇▇ and FTC. There is no
understanding that any person other than or in addition to Guarantor shall
execute this Guaranty.
▇▇▇▇▇▇▇▇▇'S EXECUTION OF THIS GUARANTY WAS NOT BASED UPON ANY FACTS OR MATERIALS
PROVIDED BY FTC, NOR WAS GUARANTOR INDUCED TO EXECUTE THIS GUARANTY BY ANY
REPRESENTATION, STATEMENT OR ANALYSIS MADE BY FTC. ▇▇▇▇▇▇▇▇▇ ACKNOWLEDGES AND
AGREES THAT ▇▇▇▇▇▇▇▇▇ ASSUMES SOLE RESPONSIBILITY FOR INDEPENDENTLY OBTAINING
ANY INFORMATION OR REPORTS DEEMED ADVISABLE BY GUARANTOR WITH REGARD TO THE
PRINCIPAL OR GUARANTOR, AND GUARANTOR AGREES TO RELY SOLELY ON THE INFORMATION
OR REPORTS SO OBTAINED IN REACHING ANY DECISION TO EXECUTE OR NOT TO TERMINATE
THIS GUARANTY. ▇▇▇▇▇▇▇▇▇ ACKNOWLEDGES AND AGREES THAT FTC IS AND SHALL BE UNDER
NO OBLIGATION NOW OR IN THE FUTURE TO FURNISH ANY INFORMATION TO GUARANTOR
CONCERNING THE PRINCIPAL OR THE LIABILITIES, AND THAT FTC DOES NOT AND SHALL NOT
BE DEEMED IN THE FUTURE TO WARRANT THE ACCURACY OF ANY INFORMATION OR
REPRESENTATION CONCERNING THE PRINCIPAL, GUARANTOR OR ANY OTHER PERSON WHICH MAY
INDUCE GUARANTOR TO EXECUTE OR NOT TO TERMINATE THIS GUARANTY.
This Guaranty and its performance, interpretation and enforcement shall in all
respects be governed by the law of the State of California, without regard to
its conflicts of laws principles. Guarantor consents to the jurisdiction of the
state or federal courts located in California.
▇▇▇▇▇▇▇▇▇ AND FTC HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING,
COUNTERCLAIM OR CROSS-CLAIM BROUGHT BY OR AGAINST GUARANTOR OR FTC ON ANY
MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS GUARANTY. GUARANTOR AND FTC DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING APPLICABLE STATE AND FEDERAL LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, GUARANTOR AND FTC AGREE THAT A JUDICIAL REFEREE WILL BE APPOINTED
UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 631 TO DETERMINE ANY FACTUAL
ISSUES IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN GUARANTOR AND FTC
ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS GUARANTY, THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO. ▇▇▇▇▇▇▇▇▇ AND FTC SHALL SELECT A SINGLE NEUTRAL REFEREE, WHO
SHALL BE A RETIRED STATE OR FEDERAL JUDGE WITH AT LEAST FIVE YEARS OF JUDICIAL
EXPERIENCE IN CIVIL MATTERS. IN THE EVENT THAT ▇▇▇▇▇▇▇▇▇ AND FTC CANNOT AGREE
UPON A REFEREE, THE REFEREE SHALL BE APPOINTED BY THE COURT. GUARANTOR AND FTC
SHALL EQUALLY BEAR THE FEES AND EXPENSES OF THE REFEREE UNLESS THE REFEREE
OTHERWISE PROVIDES IN THE STATEMENT OF DECISION.
IN WITNESS HEREOF and in agreement hereto Guarantor has by its duly authorized
person(s) executed this Guaranty on this 28th day of November, 2005.
BLUE HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
----------------------------
Print Name: ▇▇▇▇ ▇▇▇▇
Title: ____________________________
ANTIK DENIM, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇
----------------------------
Print Name: ▇▇▇▇ ▇▇▇▇
Title: ____________________________
ACCEPTED:
FTC COMMERCIAL CORP.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: ________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
AGREEMENT AND REAFFIRMATION BY GUARANTOR
The Undersigned has executed Guaranties (the "Guez Guaranties") in connection
with the Factoring Agreements, the Inventory Loan Facility Agreements and
various related instruments and documents between FTC COMMERCIAL CORP. ("FTC")
and the following entities (collectively, the "Companies"): BLUE HOLDINGS, INC.
and ANTIK DENIM, LLC. The Undersigned agrees that the Guez Guaranties shall
apply to all obligations of each of the Companies, respectively, under the above
Guaranty.
The Undersigned hereby reaffirms the Guez Guaranties and agrees that no
provisions of the above Guaranty by the Companies shall in any way limit any of
the terms or provisions of the Guez Guaranty or any other documents executed by
the Undersigned in favor of FTC, all of which are hereby ratified and affirmed
and the same shall continue in full force and effect in accordance with the
provisions hereof.
/s/ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇ ▇▇▇▇
AGREEMENT AND REAFFIRMATION BY GUARANTOR
The Undersigned has executed Guaranties (the "Trust Guaranties") in connection
with the Factoring Agreements, the Inventory Loan Facility Agreements and
various related instruments and documents between FTC COMMERCIAL CORP. ("FTC")
and the following entities (collectively, the "Companies"): BLUE HOLDINGS, INC.
and ANTIK DENIM, LLC. The Undersigned agrees that the Trust Guaranties shall
apply to all obligations of each of the Companies, respectively, under the above
Guaranty.
The Undersigned hereby reaffirms the Trust Guaranties and agrees that no
provisions of the above Guaranty by the Companies shall in any way limit any of
the terms or provisions of the Trust Guaranties or any other documents executed
by the Undersigned in favor of FTC, all of which are hereby ratified and
affirmed and the same shall continue in full force and effect in accordance with
the provisions hereof.
The ▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Living Trust dated
February 13, 1998
/s/ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇ ▇▇▇▇, Trustee
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Trustee
