EXHIBIT 10.2
Date October 25, 1993
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To: THE CIT GROUP/COMMERCIAL SERVICES, INC.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
GUARANTY
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Re: LBU, INC. (the "Client")
00-00 Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Reference is made to certain factoring or financing agreements or
arrangements (herein the "Agreements") between you and the above-named Client.
Each of the undersigned hereby unconditionally jointly and severally guarantees
and agrees to be liable for the full and indefeasible payment and to you,
howsoever arising, whether direct or indirect, absolute or contingent, secured
or unsecured, whether arising under any of the Agreements as now written or as
amended or supplemented hereafter, or by operation of law or otherwise.
Further, each of the undersigned agrees to pay to you on demand the amount of
all expenses (including reasonable attorney's fees) incurred by you in
collecting or attempting to collect any of the Client's obligations to you,
whether from the Client, or from any other obligor, or from the undersigned, or
in realizing upon any collateral; and agrees to pay any interest at the highest
lawful rate on all amounts payable to you hereunder, even if such amount cannot
be collected from the Client. (All of the aforementioned obligations,
liabilities, expenses and interest are hereinafter collectively called the
"Obligations"). To the extent you receive payment on account of the Obligations
guaranteed hereby, which payment is thereafter set aside or required to be
repaid by you in whole or in part, then, to the extent of any sum not finally
retained by you (regardless of whether such sum is recovered from you by the
Client, its trustee, or any other part acting for, on behalf of or through the
Client or its representative), the undersigned's obligation to you under this
Guaranty, as amended, modified or supplemented, shall remain in full force and
effect (or be reinstated) until the undersigned have made payment to you
therefor, which payment shall be due upon demand.
This Guaranty is executed as an inducement to you to make loans or advances
to the Client or otherwise to extend credit or financial accommodations to the
Client, or to enter into or continue a factoring or financing arrangement with
the Client, and is executed in consideration of your doing or having done any of
the foregoing. Each of the undersigned agrees that any of the foregoing shall
be done or extended by you in your sole discretion, and shall be deemed to have
been done or extended by you in consideration of and in reliance upon the
execution of this Guaranty, but that nothing herein shall obligate you to do any
of the foregoing.
Notice of acceptance of this Guaranty, the making of loans or advances, or
the extension of credit to the Client, the purchase or acquisition of
receivables from the Client, the amendment, execution or termination of any of
the Agreements or any other agreements between you and the Client, and
presentment, demand, protest, notice of protest, notice of non-payment and all
other notices to which the Client or the undersigned may be entitled, and your
reliance on this Guaranty are hereby waived. The undersigned also waive notice
of: changes in terms or extensions of time of payment, the taking and releasing
of collateral or guarantees (including the release of any of the undersigned)
and the settlement, compromise or release of any Obligations, and agree that, as
to each of the undersigned, the amount of the Obligation shall not be diminished
by any of the foregoing. The undersigned also agree that you need not attempt
to collect any Obligations from the Client or other obligors or to realize upon
any collateral, but may require the undersigned to make immediate payment of
Obligations or to realize upon any collateral or security therefor, or any part
thereof, or for any delay in so doing, nor shall you be under any obligation to
take any action whatsoever with regard thereto.
This Guaranty is absolute, unconditional and continuing, regardless of the
validity, regularity or enforceability of any of the Obligations or the fact
that a security interest or lien in any collateral or security therefor may not
be enforceable by you or may otherwise be subject to equities or defenses or
prior claims in favor of others or may be invalid or defective in any way and
for any reason, including any action, or failure to act, on your part. The
liability of the undersigned under this Guaranty shall be unaffected by the
death of any of the undersigned. Payment by the undersigned shall be made to
you at your office from time to time on demand as Obligations become due, and
one or more successive or concurrent actions may be brought hereon against the
undersigned (or any one or more of them) either in the same action in which the
Client is sued or in separate actions. In the event any claim or action, or
action on any judgement, based on this Guaranty, is made or brought against the
undersigned, the undersigned agree not to assert against you any set-off or
counterclaim which the Client may have, and further the undersigned agree not to
deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or
may be owed by you to the undersigned, or for any loss of contribution from any
other guarantor. Furthermore, in any litigation based on the Guaranty in which
you and any of the undersigned shall be adverse parties, the undersigned hereby
waive trial by jury and waive the right to interpose any defense based upon any
Statute of Limitations or any claim of laches and waive the performance of each
and every condition precedent to which the undersigned might otherwise be
entitle by law. Each of the undersigned hereby consent to the inpersonam
jurisdiction of the courts of New York State. In the event that you bring any
action or suit in any court of record of New York State or the Federal
Government to enforce any or all liabilities of the undersigned hereunder,
service of process may be made on the undersigned by mailing a copy of the
summons to the undersigned at the address below set forth.
All sums at any time to the credit of the undersigned and any property of
the undersigned on which you at any time have a lien or security interest, or of
which you at any time have possession, shall secure payment and performance of
all Obligations and any and all other obligations of the undersigned to you
however arising. The undersigned
shall have no right of subrogation, indemnification or recourse to any
Obligations or collateral or guarantees therefor, or to any assets of the
Client.
In the event of any breach of, default under or termination of any of the
Agreements between you and the Client, or in the event that the undersigned
shall fail to observe or perform any agreements, warranties, or covenants
contained herein, or on the death of any undersigned, or should any of the
undersigned dissolve or cease its business, call a meeting of its creditors,
fail to meet its debts as they mature, commit an act of bankruptcy, have
commenced by or against the undersigned any bankruptcy, insolvency, arrangement,
reorganization, receivership or similar proceeding under any federal or state
law, then the liability of all of the undersigned for the entire Obligations
shall mature even if the liability of the Client therefor does not.
This Guaranty may be terminated as to any one of the undersigned only upon
receipt by one of your officers of at least ninety (90) days prior written
notice of termination sent by registered or certified mail; provided however,
that any of the undersigned so terminating this Guaranty shall remain bound
hereunder, and this Guaranty shall continue in full force and effect, with
respect to any and all Obligations created or arising prior to the effective
date of such termination and with respect to any and all extensions, renewals or
modifications of said pre-existing Obligations. Termination as to any one of
the undersigned shall not affect the obligations of any of the other
undersigned, nor relieve the one giving such notice from liability for any post
termination collection expenses or interest. This is a continuing agreement and
written notice as above provided shall be the only means of termination,
notwithstanding the fact that for certain periods of time there may be no
Obligations owing to you by the Client.
Your books and records showing the account between you and the Client shall
be admissible in evidence in any action or proceeding as prima facie proof of
the items therein set forth. Your monthly statements rendered to the Client
shall be binding upon the undersigned (whether or not the undersigned received
copies thereof) and, shall constitute an account stated between you and the
Client, unless you shall have received a written statement of the Client's
exceptions within thirty (30) days after the statement was mailed to the Client.
This Guaranty embodies the whole agreement of the parties and may not be
modified except in writing, and no course of dealing between you and any of the
undersigned shall be effective to change or modify this Guaranty. Your failure
to exercise any right hereunder shall not be construed as a waiver of the right
to exercise the same or any other right at any other time and from time to time
thereafter, and such rights shall be considered as cumulative rather than
alternative. No knowledge of any breach or other nonobservance by any of the
undersigned of the terms and provisions of this Guaranty shall constitute a
waiver thereof, nor a waiver of any obligations to be performed by the
undersigned hereunder.
This instrument is executed and given in addition to, and not in
substitution, reduction, replacement or satisfaction of any other endorsements
or guarantees of the
Obligations, now existing or hereafter executed, by any or all of the
undersigned, or others in your favor.
When used in this agreement all pronouns shall, wherever applicable, be
deemed to include the plural as well as the masculine and feminine gender. This
agreement shall inure to the benefit of you, your successors, and assigns and
any parent, subsidiary or affiliate of yours, as well as to any concern which
you may now or hereafter factor or finance; shall be binding jointly and
severally upon the undersigned and upon the respective heirs, executors,
administrators, successors and assigns of each of the undersigned; and shall
pertain to the Client and its successors and assigns. This Guaranty may be
executed in any number of counterparts, each of which when so executed shall be
deemed an original and such counterparts shall, together, constitute but one and
the same document.
This Guaranty shall be governed by and construed in accordance with the
laws of the State of New York.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Guaranty effective as of the date set forth.
/s/ Xxxxxxx Xxxxx L.S.
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Xxxxxxx Xxxxx, individually
Address: 000 Xxxxxxx Xxxxx, Xxxxxxxxx 0X
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Date: October 25, 1993
/s/ Xxxx Xxxxx L.S.
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Xxxx Xxxxx, individually
Address: 000 Xxxxxxx Xxxxx, Xxxxxxxxx 0X
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Date: October 25, 1993
