1
EXHIBIT 99.4
USTRUST GUARANTY (UNLIMITED)
TOY BUILDING, LLC
In consideration of USTrust (hereinafter called the "BANK") extending
credit or otherwise in its discretion giving time, financial or other
accommodations to XXXXXXXXXXXXXXX.XXX LLC (hereinafter called the "BORROWER"),
the undersigned (hereinafter called the "GUARANTOR") hereby unconditionally
guarantees to the Bank that (a) the Borrower will duly and punctually pay or
perform, at the place specified therefor, or if no place is specified, at the
Bank's Head Office or at the branch of the Bank where this Guaranty is given,
all indebtedness, obligations and liabilities, direct or indirect, matured or
unmatured, primary or secondary, certain or contingent, of the Borrower to the
Bank, now or hereafter owing or incurred (including without limitation costs and
expenses incurred by the Bank in attempting to collect or enforce any of the
foregoing) which are chargeable to the Borrower either by law or under the terms
of the Bank's arrangements with the Borrower accrued in each case to the date of
payment hereunder (collectively the "OBLIGATIONS" and individually an
"OBLIGATION"); and (b) if there is an agreement or instrument evidencing or
executed and delivered in connection with any Obligation, the Borrower will
perform in all other respects strictly in accordance with the terms thereof.
This Guaranty is an absolute, unconditional and continuing guaranty of
the full and punctual payment and performance by the Borrower of the Obligations
and not of their collectibility only and is in no way conditioned upon any
requirement that the Bank first attempt to collect any of the Obligations from
the Borrower or any other party primarily or secondarily liable with respect
thereto or resort to any security or other means of obtaining payment of any of
the Obligations which the Bank now has or may acquire after the date hereof, or
upon any other contingency whatsoever.
Upon any default by the Borrower in the full and punctual payment and
performance of the Obligations, the liabilities and obligations of the Guarantor
hereunder shall, at the option of the Bank, become forthwith due and payable to
the Bank without demand or notice of any nature, all of which are expressly
waived by the Guarantor. Payments by the Guarantor hereunder may be required by
the Bank on any number of occasions.
The Guarantor further agrees, as the principal obligor and not as a
guarantor only, to pay to the Bank forthwith upon demand, in funds immediately
available to the Bank, all costs and expenses (including court costs and legal
expenses) incurred or expended by the Bank in connection with this Guaranty and
the enforcement hereof, together with interest on amounts recoverable under this
Guaranty from the time such amounts become due until payment at the usual rate
charged by the Bank in similar circumstances.
The liability of the Guarantor hereunder shall be unlimited in amount.
-1-
2
The obligations of the Guarantor under this Guaranty shall continue in
full force and effect until ten (10) days after the Bank shall have received
from the Guarantor written notice of the Guarantor's intention to discontinue
this Guaranty, notwithstanding any intermediate or temporary payment or
settlement of the whole or any part of the Obligations. No such notice shall
affect the liability of the Guarantor hereunder with respect to any Obligations
incurred by Borrower to the Bank or with respect to which the Bank has become
committed prior to ten (10) days after the receipt of such notice. In the event
of any such discontinuance of this Guaranty, all checks, drafts, notes,
instruments (negotiable or otherwise) and writings drawn or made by or for the
account of the Borrower on the Bank or any of its agents purporting to be dated
on or before ten (10) days after the date such discontinuance is received by the
Bank, although presented to and paid or accepted by the Bank after that date,
shall form part of the Obligations. No such notice shall be effective unless
received and acknowledged by an officer of the Bank at its Head Office or at the
branch of the Bank where this Guaranty is given.
The Guarantor grants to the Bank, as security for the full and punctual
payment and performance of the Guarantor's obligations hereunder, a continuing
lien on and security interest in all securities or other property belonging to
the Guarantor now or hereafter held by the Bank and in and in all deposits and
other sums credited by or due from the Bank to the Guarantor or subject to
withdrawal by the Guarantor; and regardless of the adequacy of any collateral or
other means of obtaining repayment of the Obligations, the Bank may at any time
and without notice to the Guarantor set off the whole or any portion or portions
of any or all such deposits and other sums against amounts payable under this
Guaranty, whether or not any other person or persons could also withdraw money
therefrom.
The Bank shall be at liberty, without giving notice to or obtaining the
assent of the Guarantor, and without relieving the Guarantor of any liability
hereunder, to deal with the Borrower and with each other party who now is or
after the date hereof becomes liable in any manner for any of the Obligations,
in such manner as the Bank in its sole discretion deems fit, and to this end the
Guarantor gives to the Bank full authority in its sole discretion to do any or
all of the following things: (a) extend credit, make loans and afford other
financial accommodations to the Borrower at such times, in such amounts and on
such terms as the Bank may approve; (b) vary the terms and grant extensions or
renewals of any present or future indebtedness or obligation to the Bank of the
Borrower or of any such other party; (c) grant time, waivers and other
indulgences in respect thereto; (d) vary, exchange, release or discharge, wholly
or partially, or delay in or abstain from perfecting and enforcing any security
or guaranty or other means of obtaining payment of any of the Obligations which
the Bank now has or acquires after the date hereof; (e) accept partial payments
from the Borrower or any such other party; (f) release or discharge, wholly or
partially, any endorser or guarantor; and (g) compromise or make any settlement
or other arrangement with the Borrower or any such other party.
-2-
3
If for any reason the Borrower has no legal existence or is under no
legal obligation to discharge any of the Obligations undertaken or purported to
be undertaken by it or on its behalf, or if any of the moneys included in the
Obligations have become unrecoverable from the Borrower by operation of law or
for any other reason, this Guaranty shall nevertheless be binding on the
Guarantor to the same extent as if the Guarantor at all times had been the
principal debtor on all such Obligations. This Guaranty shall be in addition to
any other guaranty or other security for the Obligations, and it shall not be
prejudiced or rendered unenforceable by the invalidity of any such other
guaranty or security. Notwithstanding any payment by the Borrower to the Bank of
the whole or any portion of the Obligations, if the Bank shall be required to
pay any amount so paid to the Bank to a Trustee in Bankruptcy of the Borrower,
the Guarantor shall remain liable for any sums so paid to said Trustee.
The Guarantor waives notice of acceptance hereof, notice of any action
taken or omitted by the Bank in reliance hereon, and any requirement that the
Bank be diligent or prompt in making demands hereunder, giving notice to any
default by the Borrower or asserting any other right of the Bank hereunder. The
Guarantor also irrevocably waives, to the fullest extent permitted by law, all
defenses which at any time may be available in respect of the Guarantor's
Obligations hereunder by virtue of any homestead exemption, statute of
limitations, valuation, stay, moratorium law or other similar law now or
hereafter in effect.
The Guarantor will not, by paying any sum recoverable hereunder (whether
or not demanded by the Bank) or by any means or on any other ground, claim any
set off or counterclaim against the Borrower in respect of any liability of the
Guarantor to the Borrower or, in proceedings under the Bankruptcy Code or
insolvency proceedings of any nature, prove in competition with the Bank in
respect of any payment hereunder or be entitled to have the benefit of any
counterclaim or proof of claim or dividend or payment by or on behalf of the
Borrower or the benefit of any other security for any Obligation which, now or
hereafter, the Bank may hold or in which it may have any share or have any right
of subrogation, reimbursement or indemnity or right of recourse to any security
which the Bank may have or hold with respect to the Obligations until such
Obligations are paid in full.
Any demand on or notice to the Guarantor shall be in writing and shall be
effective when handed to the Guarantor or left at or mailed or sent by telegraph
to the Guarantor's usual or last known address.
No provision of this Guaranty can be changed, waived or discharged except
by an instrument in writing signed by the Bank and the Guarantor expressly
referring to the provision of this Guaranty to which such instrument relates,
and no such waiver shall extend to, affect, or impair any right with respect to
any Obligation which is not expressly dealt with therein. No course of dealing
or delay or omission on the part of the Bank in exercising any right shall
-3-
4
operate as a waiver thereof or otherwise be prejudicial thereto.
This Guaranty is intended to take effect as a sealed instrument to be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts and shall inure to the benefit of the Bank and its successors in
title and assigns, and shall be binding on the Guarantor and the Guarantor's
heirs, assigns and legal representatives.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty or has
caused this Guaranty to be executed on its behalf by an officer or other person
thereunto duly authorized on the 29th day of December, 1999.
Witness: TOY BUILDING, LLC
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxx XxXxxxxx
------------------------------- -----------------------------------
Xxxxxx Xxxxxxxx, Manager
Witness:
/s/ Xxxxx X. Xxxxxxx By: Xxxxx X. XxXxxxxx
------------------------------- -----------------------------------
Xxxxx X. XxXxxxxx, Manager
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
-4-
