Exhibit 10.60
GUARANTY
AND SECURITY AGREEMENT
Date: July 19, 1995
SECTION 1. Definitions. The following terms have the following meanings unless
otherwise specified herein:
"Bank" means Republic National Bank of New York (France), a bank formed under
the laws of France, and its successors and assigns, and any Person acting as
agent or nominee for Republic National Bank of New York (France), and any
corporation the stock of which is owned or controlled directly or indirectly by,
or is under common control with, Republic National Bank of New York (France),
and/or Republic New York Corporation, and/or Safra Republic Holdings S.A.
"Bankruptcy Code" shall mean the United States Bankruptcy Code, and any
amendments thereto (Title 11, United States Code).
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|"Borrower" shall mean Inter Parfums, S.A. and Inter Parfums Holding, S.A. |
|(if more than one, "Borrower" shall mean each, any or all of them). |
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"Claims" shall mean each "claim" as that term is defined under Section 101(4) of
the Bankruptcy Code.
"Collateral" shall mean all property that secures the payment of the
Obligations, and any Proceeds thereof.
"Guaranty" shall mean this Guaranty and Security Agreement.
"Guarantor" shall mean the undersigned (and if more than one, "Guarantor" shall
mean each, any and all of them, jointly and severally).
"Liabilities" shall mean any and all indebtedness, obligations (whether monetary
or non-monetary) and liabilities of Guarantor to the Bank under this Guaranty,
and all Claims thereon, including without limitations all Obligations.
"Lien" means any lien, security interest, pledge, hypothecation, or other claim
in or with respect to any Security.
"Obligations" shall mean any and all indebtedness, obligations and liabilities
of the Borrower to the Bank, and all Claims of the Bank against the Borrower,
now existing or hereafter arising, direct or indirect (including participations
or any interest of the Bank in indebtedness of the Borrower to others), acquired
outright, conditionally, or as collateral security from another, absolute or
contingent, joint or several, secured or unsecured, matured or not matured,
monetary or non-monetary, arising out of contract or tort, liquidated or
unliquidated, arising by operation of law or otherwise and all extensions,
renewals, refunding, replacements and modifications of any of the foregoing.
"Person" shall mean any natural person, corporation, partnership, trust,
government or other association or legal entity.
"Proceeds" shall have the meaning assigned to that term by the New York Uniform
Commercial Code, as amended, and also means all "proceeds," "products,"
"offspring," "rents" or "profits" of any property, as such quoted terms are used
in the Bankruptcy Code.
"Security" shall mean any property which secures payment or performance of any
of the Liabilities, and all Proceeds thereof.
SECTION 2. Scope of Guaranty. In consideration of any extension of credit or
other financial accommodation heretofore, now or hereafter made by the Bank to
or for the account of the Borrower, whether voluntary or obligatory, Guarantor
hereby absolutely and unconditionally guarantees to the Bank the prompt and
complete payment and performance when due (whether at stated maturity, by
required prepayment, acceleration, or otherwise) of all Obligations and the
performance of each of Borrower's covenants and obligations under all loan
agreements, documents and instruments evidencing or relating to any Obligations
or under which any Obligations may have been issued, created, assumed, suffered
involuntarily, or guaranteed, and all expenses incurred in collecting or
enforcing the same, as more fully set below, all of which conclusively shall be
deemed to have been incurred in reliance upon this Guaranty, as if each of the
foregoing were the direct and primary legal responsibility of Guarantor and not
the Borrower.
SECTION 3. Security. As Security for the Liabilities of Guarantor, Guarantor
hereby grants to the Bank a continuing lien upon and security interest in, and
hereby pledges, assigns and transfers to the Bank, all right, title and interest
of Guarantor in and to all deposits (general or special) of Guarantor at any
time maintained with the Bank or any branch, subsidiary or affiliate of the
Bank, wherever located, and any substitutions and all products and Proceeds
thereof, and any other property described below, whether now or hereafter
existing or acquired, and wherever located, and any substitutions and all
products and Proceeds (including but not limited to insurance proceeds) thereof:
The Bank or its nominee may exercise any right of Guarantor with respect to
any Security whether or not any Obligation or Liability is then due and payable
or any default has occurred. In any statutory or non-statutory proceeding,
affecting the Borrower, Guarantor or any Security or any Obligation or
Liability, the Bank or its nominee may, whether or not any Obligation or
Liability is then due and payable or any default shall have occurred, and
regardless of the amount of Obligations or Liabilities, assert, or file a proof
of claim for, the full amount of any such Obligation, Liability or the Security
and vote such claim, for the full amount thereof: (a) for or against any
proposal or resolution; (b) for a trustee or trustees or for a committee of
creditors; or (c) for the acceptance or rejection of any proposed arrangement,
plan of reorganization, wage earners plan, composition or extension, and the
Bank or its nominee may receive any payment or distribution and give acquittance
therefor and may exchange or release any Security. Guarantor agrees that at any
time, whether or not any Obligation or Liability is then due and payable or any
default shall have occurred, the Bank shall have the right to notify any account
debtor (with respect to any Security consisting of Accounts), or the obligor on
any Instrument or other right or claim of Guarantor to any payment which is
Security, to make payment directly to the Bank, whether or not any default shall
have occurred and whether or not Guarantor was theretofore making collections on
such Security, and also to take control of any Proceeds the Bank is entitled to
under Section 9-306 of the New York Uniform Commercial Code. If any Security
consists of Accounts, Instruments or other rights or claims of Guarantor to any
payment, then at the Bank's request Guarantor shall promptly notify (in manner,
form and substance satisfactory to the Bank) all Persons obligated to Guarantor
under any such Accounts, Instruments or other rights or claims of Guarantor to
any payment that the Bank possesses a security interest in such Accounts,
Instruments or other rights or claims of Guarantor to any payment and that all
payments in respect of such Accounts, Instruments or other rights or claims of
Owner to any payment are to be made directly to the Bank. Guarantor shall not
settle, compromise or adjust any disputed amount, or allow any credit, rebate or
discount with respect to any Account, Instrument or other right or claim of
Guarantor to any payment which constitutes Security under this Guaranty. After
the Bank shall have given any notice to an account debtor of the type specified
above, any and all accounts recovered by Guarantor from the account debtor or
other obligor so notified shall be promptly remitted to the Bank, and until so
remitted shall be segregated by Guarantor and held in trust for the Bank.
To the extent permitted by applicable law, the Bank or its nominee is
hereby given a right of setoff for the amount of the Liabilities upon any of
and all said deposits and any credits of Guarantor with, and any and all claims
of Guarantor against, the Bank at any time existing and the Bank is hereby
authorized to setoff and apply such deposits, credits and claims, without prior
notice or demand, to the Liabilities in such order and amounts as the Bank may
elect, although such Liabilities may be contingent or unmatured.
Guarantor shall, upon request of the Bank, assemble the Security and make
it available to the Bank at a place to be designated by the Bank which is
reasonably convenient to the Bank and Guarantor. The Bank will give Guarantor
notice of the time and place of any public sale of the Security or of the time
after which any private sale or any other intended disposition thereof is to be
made by sending notice, as provided below, at least five days before the time
of the sale or disposition, which provisions for notice Guarantor agrees are
reasonable. No such notice need be given by the Bank with respect to Security
which is perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market. Guarantor shall remain liable to the
Bank for the payment of any deficiency with interest thereon at the highest rate
applicable to the Obligations, or if no rate is specified with respect to such
Obligations, at the then legal rate of interest.
Guarantor will do all such other acts and things and will execute and
deliver all such other instruments and documents, including further security
agreements, pledges, endorsements, assignments, and notices as the Bank may
reasonably deem necessary or advisable from time to time in order to perfect and
preserve the Liens created by this Guaranty and will, at its own cost and
expense, cause such Lien to be perfected and continue to be perfected and to be
and remain prior to all other Liens. The Bank, acting through its officers,
employees and authorized agents, is hereby irrevocably appointed the
attorney-in-fact of Guarantor to do, at Guarantor's expense, all acts and things
which the Bank may reasonably deem necessary or advisable to preserve, perfect,
continue to perfect and/or maintain the priority of such Liens, including the
signing of financing, continuation or other similar statements and notices on
behalf of Guarantor, and which Guarantor is required to do by the terms of this
Guaranty. Guarantor hereby authorizes the Bank to sign and file financing
statements with respect to the Security without the signature of Guarantor.
Guarantor shall pay all filing fees for financing statements with respect to the
Security.
SECTION 4. Reinstatement. If after receipt of any payment of, or proceeds of
Security applied (or intended to be applied) to the payment of, all or any part
of the Obligations, the Bank is for any reason compelled to surrender or
voluntarily surrenders, such payment or proceeds to any person, (a) because such
payment or application of proceeds is or may be avoided, invalidated, declared
fraudulent, set aside, determined to be void or voidable as a preference,
fraudulent conveyance, impermissible setoff or a diversion of trust funds; or
(b) for any other reason, including without limitation (i) any judgment, decree
or order of any Court or administrative body having jurisdiction over the Bank
or any of its property, or (ii) any settlement or compromise of any such claim
effected by the Bank with any such claimant (including the Borrower), then the
Obligations or part thereof intended to be satisfied shall be reinstated and
continue and this Guaranty shall continue in full force as if such payment or
proceeds had not been received by the Bank, notwithstanding any revocation
thereof or the cancellation of any note or other instrument evidencing any
Obligation or otherwise; and Guarantor shall be liable to pay to the Bank, and
hereby does indemnify the Bank and hold the Bank harmless for, the amount of
such payment or proceeds so surrendered and all expenses (including all
attorneys' fees, court costs and expenses attributable thereto) incurred by the
Bank in the defense of any claim made against the Bank that any payment or
proceeds received by the Bank in respect of all or any part of the Obligations
must be surrendered. The provisions of this Section 4 shall survive the
termination of this Guaranty, and any satisfaction and discharge of the Borrower
by virtue of any payment, court order or any federal or state law.
SECTION 5. Waiver. Guarantor hereby waives (a) notice of acceptance of this
Guaranty and all notice of the creation, extension or accrual of any of the
Obligations; (b) presentment, demand for payment, notice of dishonor, and
protest; (c) notice of any other nature whatsoever, except for notices
specifically provided for in this Guaranty or which may not be waived under
applicable law; (d) any requirement that the Bank take any action whatsoever
against the Borrower or any other party or file any claim in the event of the
bankruptcy of the Borrower; or (e) failure to protect, preserve or resort to any
Collateral or to exercise or enforce the Bank's rights under any other
guaranties of or security for the Obligations; and Guarantor further agrees that
this Guaranty will not be discharged (subject to the provisions contained in
Section 11) except by complete performance of all Obligations of the Borrower
and the Liabilities of Guarantor hereunder.
SECTION 6. Consent. Guarantor hereby consents that from time to time, and
without further notice to or consent of Guarantor, the Bank may take any or all
of the following actions without diminishing, releasing or otherwise affecting
the liability of Guarantor to pay and perform under this Guaranty: (a) extend,
renew, modify, compromise, settle or release the Obligations (including without
limitation any increase or decrease in the interest rate); (b) release or
compromise any liability of any party or parties with respect to Obligations;
(c) release its security interest in any or all of the Collateral or exchange,
surrender, or otherwise deal with the Collateral as the Bank may determine; or
(d) exercise or refrain from exercising any right or remedy of the Bank against
any person or property.
SECTION 7. Guaranty Absolute. The liability of Guarantor under this Guaranty
shall be absolute and unconditional irrespective of any lack of validity,
regularity or enforceability of the Obligations or any note, instrument or
agreement evidencing the same or relating thereto, the acceptance of additional
guarantees or collateral or the termination, by operation of law or otherwise,
of the liability of anyone with respect to the Obligations, or any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, the Borrower.
SECTION 8. WAIVER OF SUBROGATION. NOTWITHSTANDING ANY PAYMENT OR PAYMENTS MADE
BY GUARANTOR HEREUNDER, OR ANY SETOFF OR APPLICATION BY THE BANK OF THE SECURITY
OR OF ANY CREDITS OR CLAIMS, GUARANTOR WILL NOT ASSERT OR EXERCISE ANY RIGHTS OF
THE BANK OR GUARANTOR AGAINST THE BORROWER TO RECOVER THE AMOUNT OF ANY PAYMENT
MADE BY GUARANTOR TO THE BANK HEREUNDER OR UNDER ANY OTHER GUARANTEE BY WAY OF
SUBROGATION, REIMBURSEMENT, CONTRIBUTION, INDEMNITY, OR OTHERWISE ARISING BY
CONTRACT OR OPERATION OF LAW, AND GUARANTOR SHALL HAVE NO RIGHT OF RECOURSE TO
OR ANY CLAIM AGAINST ANY ASSETS OR PROPERTY OF THE BORROWER, UNLESS AND UNTIL
THE OBLIGATIONS OF THE BORROWER HAVE BEEN SATISFIED IN FULL. If there is more
than one Guarantor, each Guarantor agrees not to seek contribution from any
other Guarantor until all the Obligations shall have been paid in full. If any
amount shall nevertheless be paid to a Guarantor by Borrower or another
Guarantor 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. The provisions of this Section 8
shall survive the terminaton of this Guaranty, and any satisfaction and
discharge of the Borrower by virtue of any payment, court order or any federal
or state law.
SECTION 9. Expenses. Guarantor hereby agrees to pay any and all expenses
incurred by the Bank in enforcing any rights under this Guaranty or in defending
any of its rights or any amounts received hereunder. Without limiting the
foregoing, Guarantor agrees that whenever any attorney is used by the Bank to
obtain payment hereunder, to advise it as to its rights, to adjudicate the
rights of the parties hereunder or for the defense of any of its rights or
amounts received hereunder, the Bank shall be entitled to recover all attorneys'
fees, court costs, and expenses attributable thereto.
SECTION 10. Binding Effect. Except to the extent it may be terminated in
accordance with Section 11, this Guaranty shall remain in full force and effect
and shall be binding upon Guarantor, its successors and assigns, in accordance
with its terms, notwithstanding any increase, decrease or change in the partners
of Guarantor, if it should be a partnership, or the merger, consolidation, or
reorganization of Guarantor, if it be a corporation, or any other change
concerning the form, structure or substance of any such entity.
SECTION 11. CONTINUING GUARANTY; TERMINATION. THIS GUARANTY IS A CONTINUING
GUARANTY, WHICH SHALL REMAIN IN EFFECT UNTIL THE DATE SIX (6) MONTHS AFTER
NOTICE OF TERMINATION IN WRITING FROM GUARANTOR IS ACTUALLY RECEIVED BY THE BANK
AT THE BANK'S ADDRESS SET FORTH BELOW ("TERMINATION DATE"). SUCH TERMINATION
WILL BE EFFECTIVE ONLY WITH RESPECT TO ALL OBLIGATIONS INCURRED OR CONTRACTED BY
THE BORROWER OR ACQUIRED BY THE BANK AFTER THE TERMINATION DATE, BUT THIS
GUARANTY SHALL REMAIN IN FULL FORCE AND EFFECT AS TO ALL OBLIGATIONS EXISTING ON
AND AS OF THE TERMINATION DATE, INCLUDING ALL RENEWALS, COMPROMISES,
MODIFICATIONS, EXTENSIONS AND OTHER AMENDMENTS RELATING THERETO, ALL INTEREST
THEREON AND COLLECTION EXPENSES THEREFOR, UNTIL FULL PAYMENT OF SUCH OBLIGATIONS
TO THE BANK.
SECTION 12. Obligations Deemed to Become Due. If the Borrower or Guarantor makes
an assignment for the benefit of creditors or a trustee or receiver is appointed
for the Borrower or Guarantor or for any of its property; or any proceeding by
or against the Borrower or Guarantor (or any other guarantor), under any
bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of
debt, receivership, liquidation or dissolution law or statute is commenced; or
Guarantor fails to furnish to the Bank such financial information concerning
Guarantor as the Bank may from time to time request; or any representation or
warranty made by Guarantor herein proves to be incorrect or untrue in any
material respect; or Bank shall in good faith determine that there has been a
material adverse change in Guarantor's or the Borrower's net worth or in good
xxxxx xxxx itself insecure with respect to Guarantor's or the Borrower's
financial condition or ability to pay the Liabilities or Obligations, as the
case may be, then all Obligations, regardless of their terms, for the purposes
of this Guaranty, together with all Liabilities, shall be immediately due and
payable, notwithstanding the absence of any default by the Borrower under any of
the Obligations.
SECTION 13. Assignment. The Bank may, without notice, assign the Obligations, in
whole or in part, and each successive assignee of the Obligations so assigned
may enforce this Guaranty for its own benefit with respect to the Obligations so
assigned.
SECTION 14. Notices. Each notice or other communication hereunder shall be in
writing, shall be sent by messenger, by first class mail or by facsimile
transmitter or tested telex, and shall be effective when received, and shall be
sent as follows:
If to the Guarantor, to the address set forth below its signature or such
other address as it may designate, by written notice to the Bank as herein
provided or such other address as may appear in the records of the Bank.
If to the Bank, to the following address:
Republic National Bank of New York (France)
00 Xxxxx Xxxxxxx
00000 Xxxxx
Xxxxxx
Attention: Loan Department
or such other address as it may designate, by written notice to the Guarantor as
herein provided.
SECTION 15. Other Guarantees; Amendments. The execution and delivery hereafter
to the Bank by Guarantor of a new instrument of guarantee shall not terminate,
supersede or cancel this instrument, unless expressly provided therein, and this
instrument shall not terminate, supersede or cancel any instrument of guarantee
previously delivered to the Bank by Guarantor, and all rights and remedies of
the Bank hereunder or under any instrument of guarantee hereafter or heretofore
executed and delivered to the Bank by Guarantor shall be cumulative and may be
exercised singly or concurrently. This Guaranty may be amended only by a writing
executed by Guarantor and a duly authorized officer of the Bank.
SECTION 16. No Waiver; Cumulative Remedies. No delay on the part of the Bank in
exercising any of its options, powers or rights, or partial or single exercise
thereof, shall constitute a waiver thereof. NO WAIVER OF ANY PROVISION OF THIS
GUARANTY IS EFFECTIVE UNLESS MADE IN WRITING AND EXECUTED BY A DULY AUTHORIZED
OFFICER OF THE BANK. All rights and remedies hereunder are cumulative and may be
exercised singly or concurrently.
SECTION 17. Statute of Limitations. Any acknowledgment, new promise, payment of
principal or interest or other act by the Borrower or others with respect to the
Obligations shall be deemed to be made as agent of Guarantor, and shall, if the
statute of limitations in favor of Guarantor against the Bank shall have
commenced to run, toll the running of such statute of limitations, and if such
statute of limitations shall have expired, prevent the operation of such
statute.
SECTION 18. Governing Law; Consent to Jurisdiction; Service of Process. This
Guaranty shall be governed by and construed in accordance with the laws of the
State of New York applicable to instruments made and to be performed wholly
within that State. Guarantor hereby consents to the jurisdiction of the courts
of the State of New York and the courts of the United States of America for the
Southern District of New York and consents that any action or proceeding
hereunder may be brought in such courts, and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same; and authorizes the service of process on
Guarantor by registered or certified mail sent to its address as set forth in
Section 14.
SECTION 19. RIGHT OF BANK TO ARBITRATE DISPUTES.
(a) GUARANTOR AGREES THAT ANY ACTION, DISPUTE, PROCEEDING, CLAIM OR
CONTROVERSY BETWEEN OR AMONG GUARANTOR AND THE BANK WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE ("DISPUTE" OR "DISPUTES") SHALL, AT THE BANK'S
ELECTION, WHICH ELECTION MAY BE MADE AT ANY TIME PRIOR TO THE COMMENCEMENT OF A
JUDICIAL PROCEEDING BY THE BANK, OR IN THE EVENT OF A JUDICIAL PROCEEDING
INSTITUTED BY GUARANTOR AT ANY TIME PRIOR TO THE LAST DAY TO ANSWER AND/OR
RESPOND TO A SUMMONS AND/OR COMPLAINT MADE BY GUARANTOR, BE RESOLVED BY
ARBITRATION IN NEW YORK, NEW YORK IN ACCORDANCE WITH THE PROVISIONS OF THIS
SECTION 19 AND SHALL, AT THE ELECTION OF THE BANK, INCLUDE ALL DISPUTES ARISING
OUT OF OR IN CONNECTION WITH (I) THIS GUARANTY OR ANY RELATED AGREEMENTS OR
INSTRUMENTS, (II) ALL PAST, PRESENT AND FUTURE AGREEMENTS INVOLVING GUARANTOR
AND THE BANK, (III) ANY TRANSACTION CONTEMPLATED HEREBY AND ALL PAST, PRESENT
AND FUTURE TRANSACTIONS INVOLVING GUARANTOR AND THE BANK, AND (IV) ANY ASPECT OF
THE PAST, PRESENT OR FUTURE RELATIONSHIP OF GUARANTOR AND THE BANK. Bank may
elect to require arbitration of any such Dispute with Guarantor without thereby
being required to arbitrate all Disputes between the Bank and Guarantor. Any
such dispute shall be resolved by binding arbitration in accordance with Article
75 of the New York Civil Practice Law and Rules and the commercial arbitration
rules of the American Arbitration Association ("AAA"). In the event of any
inconsistency between such Rules and these arbitration provisions, these
provisions shall supersede such Rules. All statutes of limitations which would
otherwise be applicable shall apply to any arbitration proceeding under this
subsection 19(a). In any arbitration proceeding subject to these provisions, the
arbitration panel (the "arbitrator") is specifically empowered to decide (by
documents only, or with a hearing, at the arbitrator's sole discretion)
pre-hearing motions which are substantially similar to pre-hearing motions to
dismiss and motions for summary adjudication. In any such arbitration
proceeding, the arbitrator shall not have the power or authority to award
punitive damages to any party. Judgment upon the award rendered may be entered
in any court having jurisdiction. Whenever an arbitration is required, the
parties shall select an arbitrator in the manner provided in subsection 19(d).
(b) No provision of, nor the exercise of any rights under, subsection 19(a)
shall limit the right of any party (i) to foreclose against any real or personal
property collateral through judicial foreclosure, by the exercise of a power of
sale under a deed of trust, mortgage or other security agreement or instrument,
pursuant to applicable provisions of the Uniform Commercial Code, or otherwise
pursuant to applicable law, (ii) to exercise self help remedies including but
not limited to setoff and repossession, or (iii) to request and obtain from a
court having jurisdiction before, during or after the pendency of any
arbitration, provisional or ancillary remedies and relief including but not
limited to injunctive or mandatory relief or the appointment of a receiver. The
institution and maintenance of an action or judicial proceeding for, or pursuit
of, provisional or ancillary remedies or exercise of self help remedies shall
not constitute a waiver of the right of the Bank, even if the Bank is the
plaintiff, to submit the Dispute to arbitration if the Bank would otherwise
have such right.
(c) The Bank may require arbitration of any Dispute(s) concerning the
lawfulness, unconscionableness, propriety, or reasonableness of any exercise by
the Bank of its right to take or dispose of any Collateral or its exercise of
any other right in connection with Collateral including, without limitation,
judicial foreclosure, exercising a power of sale under a deed of trust or
mortgage, obtaining or executing a writ of attachment, taking or disposing of
property with or without judicial process pursuant to Article 9 of the Uniform
Commercial Code or otherwise as permitted by applicable law, notwithstanding any
such exercise by the Bank.
(d) Whenever an arbitration is required under subsection 19(a), the
arbitrator shall be selected, except as otherwise herein provided, in accordance
with the Commercial Arbitration Rules of the AAA. A single arbitrator shall
decide any claim of $100,000 or less and he or she shall be an attorney with at
least five years' experience. Where the claim of any party exceeds $100,000, the
Dispute shall be decided by a majority vote of three arbitrators, at least two
of whom shall be attorneys (at least one of whom shall have not less than five
years' experience representing commercial banks).
(e) In the event of any Dispute governed by this Section 19, each of the
parties shall, subject to the award of the arbitrator, pay an equal share of the
arbitrator's fees. The arbitrator shall have the power to award recovery of all
costs and fees (including attorneys' fees, administrative fees, arbitrator's
fees, and court costs) to the prevailing party.
SECTION 20. Severability. If any one or more of the provisions contained in this
Guaranty or any document executed in connection herewith shall be invalid,
illegal or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions contained herein shall
not (to the full extent permitted by law) in any way be affected or impaired.
SECTION 21. Headings. The descriptive headings used in this Guaranty are for
convenience only and shall not be deemed to affect the meaning or construction
of any provision hereof.
SECTION 22. Representations and Warranties. To induce Bank to extend credit or
other financial accommodation to Borrower, Borrower represents and warrants to
Bank that (i) Borrower is duly incorporated and validly existing in good
standing under the laws of the jurisdiction of its incorporation, with full
power and authority to make, deliver and perform this Guaranty; (ii) the
execution, delivery and performance by Borrower of this Guaranty have been duly
authorized by all necessary corporate action, and does not and will not violate
or conflict with, its charter or by-laws, or any law, rule, regulation or order
binding on Borrower or any agreement or instrument to which Borrower is a party
or which may be binding on Borrower; (iii) this Guaranty has been fully executed
by an authorized officer of, and, constitutes a legal, valid, binding and
enforceable obligation of Borrower; (iv) no authorization, consent, approval,
license, exemption of or filing or registration with, any court or government
or governmental agency is or will be necessary to the valid execution, delivery
or performance by Borrower of this Guaranty; (v) there are no pending or
threatened actions, suits or proceedings against or affecting Borrower by or
before any court, commission, bureau or other governmental agency or
instrumentality, which, individually or in the aggregate, if determined
adversely to Borrower, would have a material adverse effect on the business,
properties, operations, or condition, financial or otherwise, of Borrower; and
(vi) the most recent financial statements of Borrower heretofore delivered to
Bank are complete and correct and since the date thereof there has not occurred
any material adverse change in the financial condition or operations of Borrower
from that shown on said financial statements.
SECTION 23. Payments Free and Clear of All Taxes. Each payment to be made
hereunder shall be free and clear of, and without deductions for or on account
of any present or future taxes, imposts, charges, levies, compulsory loans or
other withholdings or deductions whatsoever. If Guarantor shall be required by
applicable law to make any such deduction from any payment hereunder, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this paragraph) Bank receives an amount equal to the sum it would have
received had no deductions been made, (ii) Guarantor shall make such deductions,
and (iii) Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law. In addition,
Guarantor agrees to pay, if necessary, all stamp, documentary, or similar taxes
or any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this instrument.
SECTION 24. Judgment Currency. Any and all Liabilities payable hereunder shall
be paid in the currency(ies) which such Liability (including without limitation
any Obligation) is by the terms expressed to be payable, whether in French
Francs, U.S. Dollars or any other currency(ies) (the "Payment Currency"). If by
reason of any applicable law or arbitral award, judicial or administrative
decision or judgment, all or part of said amounts are payable in a currency
other than such applicable Payment Currency (the "Other Currency(ies)"), the
Guarantor shall indemnify the Bank from and against any loss resulting from the
difference between the rate of exchange of the Other Currency for the Payment
Currency(ies) as of the date of such award, decision or applicable judgment and
the rate at which the Bank actually is able to purchase the Payment Currency
with the Other Currency(ies) upon the Bank's actual receipt of payment in the
Other Currency.
SECTION 25. WAIVER OF TRIAL BY JURY. EACH OF THE BANK AND GUARANTOR HEREBY
WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR
AGAINST IT ON ANY MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS GUARANTY OR THE OBLIGATIONS.
SECTION 26. WAIVER OF CERTAIN OTHER RIGHTS. GUARANTOR HEREBY WAIVES THE RIGHT TO
INTERPOSE ANY DEFENSE BASED UPON ANY CLAIMS OF LACHES OR SET-OFF OR COUNTERCLAIM
OF ANY NATURE OR DESCRIPTION, ANY OBJECTION BASED ON FORUM NON CONVENIENS OR
VENUE, AND ANY CLAIM FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES.
IN WITNESS WHEREOF, the Guarantor(s) has/have executed this Guaranty and
Security Agreement.
[SEAL]
Xxxx Philippe Fragrances, Inc.
----------------------------------
By: /s/ XXXXXXX XXXXXXXXX
------------------------------
Xxxxxxx Xxxxxxxxx, Executive Vice President
000 0xx Xxxxxx, XX XX 00000
Elite Parfums, Ltd.
----------------------------------
By: /s/ XXXXXXX XXXXXXXXX
------------------------------
Xxxxxxx Xxxxxxxxx, Executive Vice President
000 0xx Xxxxxx, XX XX 00000
[Corporate Acknowledgment]
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
Xx this 19th day of July, 1995, before me personally came Xxxxxxx
Xxxxxxxxx, and Xxxxxx X. Xxxxxxx, to me known who, being duly sworn, deposes and
says that (t)(s)he(y) is/are the Executive Vice President and the Secretary of
Xxxx Philippe Fragrances, Inc., the corporation described in and which executed
the above instrument; that (t)(s)he(y) know(s) the seal of the 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 (t)(s)he(y)
signed his (her) (their) name(s) by like order.
/s/ XXXXX XXXXXXX
----------------------------------
Notary Public
XXXXX XXXXXXX
Notary Public, State of New York
No. 01FA5023811
Qualified in Queens County
Commission Expires Feb. 14, 1996
[Corporate Acknowledgment]
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
Xx this 19th day of July, 1995, before me personally came Xxxxxxx
Xxxxxxxxx, and Xxxxxx X. Xxxxxxx, to me known who, being duly sworn, deposes and
says that (t)(s)he(y) is/are the Executive Vice President and the Secretary of
Elite Parfums, Ltd., the corporation described in and which executed the above
instrument; that (t)(s)he(y) know(s) the seal of the 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 (t)(s)he(y) signed his
(her) (their) name(s) by like order.
/s/ XXXXX XXXXXXX
----------------------------------
Notary Public
XXXXX XXXXXXX
Notary Public, State of New York
No. 01FA5023811
Qualified in Queens County
Commission Expires Feb. 14, 1996
