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Exhibit 10.5
GUARANTY
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Dated as of September __, 1995
DEFINITIONS:
In this Guaranty the following terms shall have the following indicated
meanings:
1. BORROWER: Lancetti Cosmetics Corporation, a Florida corporation
2. LENDER: First Union National Bank of Florida, a national banking
association.
3. GUARANTOR: Xxxxxxx Xxxxx.
4. OBLIGATIONS: All indebtedness, liabilities, covenants, promises,
agreements, terms, conditions and other obligations of every nature whatsoever
(whether secured or unsecured) of the Borrower (including all indebtedness,
obligations and liabilities of partnerships and joint ventures, created or
arising while the Borrower may have been or may be a member thereof) to the
Lender or any of Lender's affiliates and all renewals, modifications and
extensions thereof howsoever, evidenced, whether now existing or hereafter
created or arising, direct or indirect, absolute or contingent, joint or
several, liquidated or unliquidated, matured or unmatured, and howsoever now or
hereafter owned, held or acquired by Lender or any of Lender's affiliates,
whether through discount, overdraft, purchase, direct loan or as collateral, or
otherwise, including without limitation: (i) any letter of credit issued by
Lender for the account of Borrower, (ii) all principal and interest, (including,
without limitation, all interest accruing after a petition is filed in
bankruptcy or similar proceedings, notwithstanding that Borrower's obligation to
pay such interest may have ceased to exist by operation of law), (iii) all costs
of collection, including reasonable attorneys' fees, paralegals' fees and legal
assistants' fees (whether incurred with collection, trial, appeal, bankruptcy
proceedings or otherwise notwithstanding that Borrower's obligation to pay such
fees may have ceased to exist by operation of law), (iv) all documentary stamp
tax and intangible tax (including interest and penalties, if any) determined to
be due in connection with any evidence of said indebtedness, obligations and
liabilities, and (v) all other amounts which Borrower is obligated to pay Lender
under any instruments evidencing, relating to or securing said indebtedness,
obligations and liabilities or any part thereof.
CONSIDERATION:
As a material inducement to the Lender to extend credit to the Borrower
and because the Guarantor will benefit from any credit extended to Borrower, the
Guarantor makes this Guaranty.
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TERMS, COVENANTS AND CONDITIONS:
1. NATURE AND SCOPE OF GUARANTY.
1.1 The Guarantor irrevocably, absolutely and unconditionally
guarantees to the Lender, the due and punctual payment and performance of the
Obligations.
1.2 This Guaranty is an absolute and unconditional guaranty of
payment and performance and not one of collection and all Obligations guaranteed
hereby shall be conclusively presumed to have been created in reliance hereon.
1.3 Guarantor will make all payments hereunder in lawful money of
the United States of America in immediately available funds without set-off or
counterclaim.
1.4 Guarantor's liability hereunder shall remain unchanged
irrespective of any invalidity, illegality or unenforceability of or any
defense(whether arising by reason of disability, dissolution or liquidation of
the Borrower, or lack of corporate or partnership power or authority of the
Borrower, or otherwise) to the Obligations or any portion thereof, or of any
security for the Obligations, or any portion thereof, it being understood and
agreed that each Guarantor shall be and remain fully bound hereunder regardless
of whether Borrower shall be found not liable on the Obligations or any other
guarantor be relieved or released from liability for any reason whatsoever.
1.5 In case of the dissolution, liquidation or insolvency (howsoever
evidenced) of the Borrower, or in case any bankruptcy, reorganization, debt
arrangement, adjustment, composition, or other proceeding under any bankruptcy
or insolvency law, or any dissolution, liquidation or receivership proceeding is
instituted by or against the Borrower, or Borrower admits in writing its
inability to pay its debts as they mature, all Obligations then existing shall
at the option of the Lender, without notice to anyone, immediately become due
and payable by the Guarantor.
1.6 Guarantor acknowledges that Lender has no obligations or duties
to Guarantor under this Guaranty.
2. DISCHARGE OF GUARANTOR. Guarantor shall be discharged from liability
hereunder only upon the full payment and performance of the Obligations;
provided, however, that if any sums paid to and applied by Lender toward the
Obligations are thereafter required to be repaid to the Borrower or to any
affiliate of Borrower, or to any trustee, receiver or other person, by reason of
the application of the Bankruptcy Code, the Uniform Fraudulent Transfer Act or
any other law relating to creditors' rights generally, then this Guaranty shall
be reinstated, AB INITIO, as if such portion of the Obligations had never been
paid.
3. TERMINATION OF GUARANTY AS TO FUTURE OBLIGATIONS. This Guaranty can
only be terminated by an instrument in writing (the "Notice of Termination")
executed by Guarantor with
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the formalities of a deed, acceptable for recording in the State of Florida,
making specific reference to this Guaranty and delivered to, received by and
receipted for by Lender.
4. ASSENT TO AGREEMENTS MADE BY BORROWER. Guarantor assents, without
notice to Guarantor, to all terms and agreements heretofore or hereafter made by
Borrower with Lender insofar as same may affect the Obligations.
5. CONSENT TO LENDER'S ACTIONS OR INACTIONS REGARDING THE BORROWER, THE
GUARANTOR, AND THE COLLATERAL. Guarantor consents that Lender may at any time
and from time to time, (whether before or after termination of this Guaranty in
accordance with Section 3 hereof) before or after any default by the Borrower,
with or without further notice to or assent from Guarantor:
5.1 Either with or without consideration to the Borrower, any
guarantor, pledgor, or grantor of any collateral, exchange, release, surrender
(in whole or in part), or fail to protect or to preserve the value of any
collateral now or hereafter held as security for the Obligations, or waive,
release, or subordinate any lien or security interest (in whole or in part) in
or on any such collateral;
5.2 Waive or delay the exercise of any of its rights or remedies
against the Borrower or any other person or entity, including, without
limitation, any guarantor; notwithstanding any waiver or delay, the Lender shall
not be precluded from further exercise of any of its rights, powers or
privileges expressly provided for herein or otherwise available, it being
understood that all such rights and remedies are cumulative;
5.3 Waive or extend the time of Borrower's performance of any and
all terms, provisions and conditions set forth in any instrument or agreement
evidencing or relating to the Obligations;
5.4 Release the Borrower or any other person or entity, including,
without limitation, any guarantor, from all or any portion of the Obligations;
5.5 Proceed against the Guarantor without first proceeding against
or joining the Borrower or any guarantor or any endorser of any note or other
agreement evidencing the Obligations, or any property securing the payment or
performance of the Obligations;
5.6 Renew, extend or modify the terms of the Obligations or any
instrument or agreement evidencing or relating to the Obligations;
5.7 Apply payments by the Borrower, the Guarantor, or any other
person or entity to the reduction of the Obligations in such manner and in such
amounts and at such time or times and in such order and priority as Lender may
see fit; and
5.8 Generally deal with the Borrower or any of the security for the
Obligations or other person or party as the Lender may see fit.
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The Guarantor shall remain bound under this Guaranty notwithstanding any such
exchange, release, surrender, subordination, waiver (whether or not such waiver
is oral or written), delay, proceeding, renewal, extension, modification,
application, act or failure to act, or other dealing described in Subsections
5.1 through 5.8, inclusive, above even though done without notice to or consent
from the Guarantor.
6. WAIVER OF NOTICE. Guarantor waives all notices whatsoever with
respect to this Guaranty and with respect to the Obligations, including, but not
limited to, notice of:
6.1 The Lender's acceptance of this Guaranty or its intention to
act, or its action, in reliance hereon;
6.2 The extension of credit by Lender to Borrower;
6.3 Presentment and demand for payment of the Obligations or any
portion thereof;
6.4 Protest and notice of dishonor or non-payment with respect to
the Obligations or any portion thereof;
6.5 Any default by Borrower or any pledgor, grantor of security, or
any guarantor, including the Guarantor;
6.6 Any other notices to which the Guarantor may otherwise be
entitled; and
6.7 Any demand for payment under this Guaranty.
7. WAIVER OF MARSHALLING, STATUTE OF LIMITATIONS AND WAGE EXEMPTION.
Guarantor waives (i) any right or claim of right to cause a marshalling of any
of the Borrower's assets or the assets of any other party now or hereafter held
as security for the Obligations, (ii) the benefit of any statute of limitations
affecting the liability of Guarantor hereunder, and (iii) any exemption of
disposable earnings from attachment or garnishment under Florida Statutes
Section 222.1 1.
8. SUBORDINATION.
8.1 All rights and claims of Guarantor (collectively the "Guarantor
Claims") against Borrower or any of Borrower's property now or hereafter
existing shall be subordinate and subject in right of payment to the prior
payment in full of and the performance of all of the Obligations.
8.2 Until the Obligations have been paid and performed in full and
Guarantor shall have performed all of Guarantor's obligations hereunder,
Guarantor shall not receive or collect, directly or indirectly, from Borrower or
any other party any payment upon the Guarantor Claims, nor seek to realize upon
any collateral securing such Guarantor Claims. Notwithstanding the foregoing, if
Guarantor should receive any such payment, Guarantor agrees
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to hold same in trust for Lender and agrees that Guarantor shall have absolutely
no rights in or to or dominion over such payments except to pay them promptly to
Lender, and Guarantor hereby covenants to do so.
9. GRANT OF SECURITY INTEREST. To secure the prompt payment and
performance of the Obligations, the Guarantor grants to Lender a continuing
first lien security interest in the Guarantor Claims and in all property of the
Guarantor delivered concurrently herewith or now, or at any time hereafter in
the possession of the Lender, and all proceeds of all such property. The
Guarantor agrees that the Lender shall have the rights and remedies of a secured
party under the Uniform Commercial Code-Secured Transactions as adopted by the
State of Florida with respect to all of the aforesaid property, including,
without limitation, the right to sell or otherwise dispose of any or all of such
property. The Lender may, without further notice to anyone, apply or set off any
balances, credits, deposits, accounts, monies or other indebtedness at any time
created by or due from the Lender to the Guarantor against the amounts due
hereunder. Any notification of intended disposition of any property required by
law shall be deemed reasonably and properly given if given at least five (5)
calendar days before such disposition.
10. SUBROGATION RIGHTS. Guarantor will not assert any right to which
Guarantor may be or may become entitled, whether by subrogation, reimbursement,
exoneration, contribution, indemnification or otherwise, against the Borrower or
any other guarantor, or against any of their respective properties, by reason of
the payment and performance by the Guarantor of its obligations under this
Guaranty.
11. REPRESENTATIONS AND WARRANTIES.
11.1 Guarantor represents and warrants to Lender that:
(a) The execution, delivery and performance by
Guarantor of this Guaranty, (i) does not require the approval of any
governmental authority, whether federal, state, county, or municipal
(collectively the "Governmental Authority"), and (iv) will not violate
any law, order, regulation, authorization or similar matters
(collectively the "Governmental Requirements"), any indenture,
agreement or other instrument to which Guarantor is a party or by which
Guarantor or any of Guarantor's property is bound, or be in conflict
with, result in a breach of or constitute (with due notice or the lapse
of time, or both) a default under any such indenture, agreement or
other instrument, or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of Guarantor's
property or assets, except as contemplated by the provisions of this
Guaranty.
(b) This Guaranty when executed and delivered by
Guarantor will constitute the legal, valid and binding obligations of
Guarantor enforceable in accordance with the terms hereof.
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(c) There are no judgments outstanding against
Guarantor and there is no action, suit, proceeding, or investigation
now pending (or to the best of Guarantor's knowledge after diligent
inquiry threatened) against, involving or affecting Guarantor or any of
Guarantor's properties or any part thereof, at law, in equity or before
any Governmental Authority that if adversely determined as to
Guarantor, would result in a material adverse change in the business or
financial condition of Guarantor, or Guarantor's operation and
ownership of any of its properties, nor is there any basis for such
action, suit, proceeding, or investigation.
(d) All balance sheets, statements of profit and
loss and other financial data that have been given to Lender with
respect to Guarantor, (i) are be complete and correct in all material
respects; (ii) do accurately present the financial condition of
Guarantor as of the dates, and the results of Guarantor's operations,
for the periods for which the same have been and will be furnished; and
(iii) have been prepared in accordance with generally accepted
accounting principles consistently followed throughout the periods
covered and to be covered thereby; all balance sheets disclose all
known liabilities, direct and contingent, as of their respective dates;
and there has been no change in the condition of the Guarantor,
financial or otherwise, since the date of the most recent financial
statements given to Lender with respect to Guarantor other than changes
in the ordinary course of business, none of which changes have been
materially adverse.
(e) Guarantor is not insolvent and will not be
rendered insolvent by the execution, delivery, payment and performance
of this Guaranty.
11.2 Guarantor acknowledges that the Lender has relied upon the
Guarantor's representations, has made no independent investigation of the truth
thereof and is not charged with any knowledge contrary thereto that may have
been received by any officer, director, employee, or shareholder of Lender.
Guarantor further acknowledges that it has not been induced to execute and
deliver this Guaranty as a result of, and is not relying upon, any
representations, warranties, agreements, or conditions, whether express or
implied, written or oral, by Lender or by any officer, director, employee, or
shareholder of Lender.
12. FINANCIAL STATEMENTS. Guarantor will furnish to Lender no later
than forty-five (45) days after the end of each calendar year, personal
financial statements of Guarantor prepared and certified in a manner
satisfactory to Lender, all in such detail as Lender may reasonably require.
Guarantor shall also furnish copies of his annual federal income tax returns
within 15 days of their timely filing with the Internal Revenue Service.
13. TRANSFER OF ASSETS. Until the Obligations have been paid and
performed in full and Guarantor shall have performed all of Guarantor's
obligations hereunder, Guarantor shall not, directly or indirectly, sell,
convey, or transfer or permit to be sold, conveyed, or transferred any of
Guarantor's assets to any party or entity to which Guarantor is related or in
which Guarantor has an interest.
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14. MODIFICATION. No agreement unless in writing and signed by an
authorized officer of Lender and no course of dealing between Guarantor and
Lender shall be effective to change or modify or to discharge in whole or in
part this Guaranty. No waiver of any rights or powers of Lender or consent by it
shall be valid unless in writing signed by an authorized officer of Lender and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
15. COST OF ENFORCEMENT. Guarantor agrees that, whenever an attorney is
used to obtain payment or performance under or otherwise enforce this Guaranty
or to enforce, declare, or adjudicate any rights or obligations under this
Guaranty, whether by suit or any other manner whatsoever, reasonable attorneys'
fees, paralegals' fees, legal assistants' fees and costs (whether incurred in
collection, litigation, bankruptcy proceedings, appeals, or otherwise) shall be
payable by Guarantor to Lender.
16. SUBMISSION TO JURISDICTION. Guarantor irrevocably and
unconditionally (a) agrees that any suit, action, or other legal proceeding
arising out of or relating to this Guaranty may be brought, at the option of the
Lender, in a court of record of the State of Florida in Broward County, in the
United States District Court for the Southern District of Florida, or in any
other court of competent jurisdiction; (b) consents to the jurisdiction of each
such court in any such suit, action, or proceeding; (c) waives any objection
which it may have to the laying of venue of any such suit, action, or proceeding
in any of such courts; and (d) agrees that service of any court paper may be
effected on Guarantor by mail, addressed and mailed as provided in Section 17
hereof or in such other manner as may be provided under applicable laws or court
rules in said State.
17. NOTICE. All notices, demands, requests and other communications, if
any, required under this Guaranty (except for the Notice of Termination) may be
given orally (either in person or by telephone if confirmed in writing within
three (3) days thereafter), by telex, telegram, or telecopy, or in writing
delivered by hand or mail and shall be conclusively deemed to have been received
if delivered or attempted to be delivered by United States first class mail,
return receipt requested, postage prepaid, addressed to the party for whom it is
intended at its address set forth below. Any party may designate a change of
address by written notice to the other party, received by such other party at
least ten (10) days before such change of address is to become effective.
Guarantor's address for the purpose of this Section is:
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Lender's address for the purpose of this Section is:
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxxxx
Vice President
This Guaranty does not require that Lender give Guarantor any notice, demand, or
request and this Section shall not be construed to create such a requirement.
18. CONFLICT OF LAW. This Guaranty shall be construed, interpreted,
enforced and governed by and in accordance with the laws of the State of Florida
(excluding the principles thereof governing conflicts of law), and federal law,
in the event federal law permits a higher rate of interest than Florida law.
19. GENDER AND NUMBER. In this Guaranty, wherever the context so
requires, the use of any gender shall include all other genders, and words in
the singular shall include the plural and the plural shall include the singular.
20. SUCCESSORS AND ASSIGNS. This Guaranty shall inure to the benefit of
the Lender, its successors and assigns, and shall be binding upon the Guarantor
and its respective heirs, personal representatives, successors and assigns.
21. SAVINGS CLAUSE. If any provision or portion of this Guaranty is
declared or found by a court of competent jurisdiction to be unenforceable or
null and void, such provision or portion thereof shall be deemed stricken and
severed from this Guaranty, and the remaining provisions and portions thereof
shall continue in full force and effect.
22. HEADINGS. The captions of Sections of this Guaranty are for
convenient reference only, and shall not affect the construction or
interpretation of any of the terms and provisions set forth in this Guaranty.
23. JOINT AND SEVERAL LIABILITY. The liability of the Guarantor
hereunder shall be joint and several with the Borrower and all other guarantors
of the Obligations.
24. WAIVER OF TRIAL BY JURY. LENDER AND GUARANTOR HEREBY KNOWINGLY,
IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS
GUARANTY, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THIS GUARANTY, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS
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A MATERIAL INDUCEMENT FOR LENDER ACCEPTING THIS GUARANTY FROM GUARANTOR AND FOR
GUARANTOR GIVING THIS GUARANTY TO LENDER.
IN WITNESS WHEREOF, the Guarantor intending to be legally bound hereby
has duly executed and delivered this Guaranty on the _____ day of September,
1995.
Signed, sealed and delivered in the presence of:
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Print Name: XXXXXXX XXXXX
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Print Name:
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STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 1995, by Xxxxxxx Xxxxx.
Personally Known [ ] OR Produced Identification [ ]
Type of Identification Produced ____________________________
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Print or Stamp Name:
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Notary Public, State of Florida at Large
Commission No.:
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My Commission Expires:
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AFFIDAVIT OF GUARANTOR
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XXXXXXX XXXXX (sometimes hereinafter referred to as "Affiant"), being
first duly sworn, deposes and says:
1. The undersigned is a shareholder of Lancetti Cosmetics Corporation,
a Florida corporation (the "Borrower").
2. To induce First Union National Bank of Florida, a national banking
association (the "Lender") to make a $1,700,000.00 Revolving Loan and a
$250,000.00 Term Loan (collectively, hereinafter referred to as the "Loan") to
the Borrower, and because the undersigned will benefit from the Loan and from
any credit extended to the Borrower, the undersigned has agreed to
unconditionally and irrevocably guarantee the payment of the Loan and the
payment of any and all other indebtedness, obligations and liabilities of every
kind and nature of Borrower to Lender.
3. Prior to accepting the guarantee of the undersigned, the Lender
required that the undersigned submit, and the undersigned has submitted, its
financial statements to the Lender in order for the Lender to determine if the
financial condition of the undersigned is satisfactory to Lender.
4. Affiant hereby represents and warrants to the Lender that, as of the
date hereof, there has been no material adverse change in the financial
condition of the undersigned as disclosed by the financial statements previously
submitted to the Lender prior to the date hereof.
5. That to the best of Affiant's knowledge there are no actions, suits
or proceedings now pending (or to the best of Affiant's knowledge after diligent
inquiry threatened) against, involving, or affecting the undersigned before any
court or any governmental agency which may result in any material adverse change
in the financial condition of the undersigned.
6. This Affidavit is being made to induce the Lender to close and
consummate the Loan, and Affiant hereby acknowledges that if any of the
representations and warranties contained herein are hereafter determined to be
incorrect or untrue, that Affiant shall be responsible for having made false
representations to the Lender.
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XXXXXXX XXXXX
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STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 1995, by Xxxxxxx Xxxxx.
Personally Known [ ] OR Produced Identification [ ]
Type of Identification Produced ____________________________
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Print or Stamp Name:
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Notary Public, State of Florida at Large
Commission No.:
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My Commission Expires:
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