EXHIBIT 15(H)
GUARANTY
This GUARANTY (this "Guaranty"), dated as of October 12, 2001, is made
by each of the Domestic Subsidiaries listed on the signature pages hereto,
together with each other Person who may become a party hereto pursuant to
Section 15 of this Guaranty, jointly and severally in favor of Bank of America,
N.A., as Administrative Agent (the "Administrative Agent") under the Loan
Agreement referred to below, and each of the lenders that are party to such Loan
Agreement (each a "Lender" and collectively, the "Lenders"), with reference to
the following facts:
RECITALS
A. Pursuant to that certain Loan Agreement dated as of October 12, 2001 entered
into among JAKKS Pacific, Inc., a Delaware corporation (the "Company"), Flying
Colors Toys, Inc., a Michigan corporation, Road Champs, Inc., a Delaware
corporation, and Pentech International Inc., a Delaware corporation
(collectively, and together with the Company, "Borrowers"), the Lenders and the
Administrative Agent (such Loan Agreement, as it may hereafter be amended,
extended, renewed, supplemented, or otherwise modified from time to time, being
the "Loan Agreement"), the Lenders are providing Borrowers with certain credit
facilities.
B. As a condition to the availability of such credit facilities, Guarantors are
required to enter into this Guaranty and to guaranty the Guarantied Obligations
as hereinafter provided.
C. Guarantors expect to realize direct and indirect benefits as the result of
the availability of the aforementioned credit facilities to Borrowers, as the
result of financial or business support which will be provided to Guarantors by
Borrowers.
AGREEMENT
NOW, THEREFORE, in order to induce the Lenders to extend the
aforementioned credit facilities, and for other good and valuable consideration,
the receipt and adequacy of which hereby are acknowledged, Guarantors hereby
represent, warrant, covenant, agree and guaranty as follows:
1. Definitions. This Guaranty is the Guaranty referred to in the Loan Agreement
and is one of the Loan Documents. Terms defined in the Loan Agreement and not
otherwise defined in this Guaranty shall have the meanings given those terms in
the Loan Agreement when used herein and such definitions are incorporated herein
as though set forth in full. In addition, as used herein, the following terms
shall have the meanings respectively set forth after each:
"Guaranty" means this Guaranty, and any extensions, modifications,
renewals, restatements, reaffirmations, supplements or amendments
hereof, including, without limitation, any documents or agreements by
which additional Guarantors become party hereto.
"Guarantied Obligations" means all Obligations at any time and from time
to time owing to any one or more of the Creditor Parties and arising
under or relating to the Commitment.
"Guarantors" means the Domestic Subsidiaries of the Company that are
parties hereto as indicated on the signature pages hereof, or that
become parties hereto as provided in Section 15 hereof, and each of
them, and any one or more of them, jointly and severally.
2. Guaranty of Guarantied Obligations. Guarantors hereby, jointly and severally,
irrevocably and unconditionally guaranty and promise to pay and perform on
demand the Guarantied Obligations and each and every one of them, including all
amendments, modifications, supplements, renewals or extensions of any of them,
whether such amendments, modifications, supplements, renewals or extensions are
evidenced by new or additional instruments, documents or agreements or change
the rate of interest on any Guarantied Obligation or the security therefor, or
otherwise.
3. Nature of Guaranty. This Guaranty is irrevocable and continuing in nature and
relates to any Guarantied Obligations now existing or hereafter arising. This
Guaranty is a guaranty of prompt and punctual payment and performance and is not
merely a guaranty of collection.
4. Relationship to Other Agreements. Nothing herein shall in any way modify or
limit the effect of terms or conditions set forth in any other document,
instrument or agreement executed by any Guarantor or in connection with the
Guarantied Obligations, but each and every term and condition hereof shall be in
addition thereto. All provisions contained in the Loan Agreement or any other
Loan Document that apply to Loan Documents generally are fully applicable to
this Guaranty and are incorporated herein by this reference.
5. Subordination of Indebtedness of Borrowers to Guarantors to the Guarantied
Obligations. Each Guarantor agrees that:
(a) Any indebtedness of Borrowers now or hereafter owed to any Guarantor
hereby is subordinated to the Guarantied Obligations.
(b) If the Creditor Parties so request, upon the occurrence and during
the continuance of any Event of Default, any such indebtedness of
Borrowers now or hereafter owed to any Guarantor shall be collected,
enforced and received by such Guarantor as trustee for the Creditor
Parties and shall be paid over to the Creditor Parties in kind on
account of the Guarantied Obligations, but without reducing or affecting
in any manner the obligations of such Guarantor under the other
provisions of this Guaranty.
6. Statutes of Limitations and Other Laws. Until the Guarantied Obligations
shall have been paid and performed in full, all the rights, privileges, powers
and remedies granted to the Creditor Parties hereunder shall continue to exist
and may be exercised by the Creditor Parties at any time and from time to time
irrespective of the fact that any of the Guarantied Obligations may have become
barred by any statute of limitations. Each Guarantor expressly waives the
benefit of any and all statutes of limitation, and any and all Laws providing
for exemption of property from execution or for evaluation and appraisal upon
foreclosure, to the maximum extent permitted by applicable Laws.
7. Waivers and Consents. Each Guarantor acknowledges that this Guaranty may
support obligations of Persons other than such Guarantor and, in full
recognition of that fact, each Guarantor consents and agrees that the Creditor
Parties may, at any time and from time to time, without
notice or demand, and without affecting the enforceability or security hereof:
(a) supplement, modify, amend, extend, renew, or otherwise change the
time for payment or the terms of the Guarantied Obligations or any part
thereof, including any increase or decrease of the rate(s) of interest
thereon;
(b) supplement, modify, amend or waive, or enter into or give any
agreement, approval or consent with respect to, the Guarantied
Obligations or any part thereof or any of the Loan Documents or any
additional security or guaranties, or any condition, covenant, default,
remedy, right, representation or term thereof or thereunder;
(c) accept new or additional instruments, documents or agreements in
exchange for or relative to any of the Loan Documents or the Guarantied
Obligations or any part thereof;
(d) accept partial payments on the Guarantied Obligations;
(e) receive and hold additional security or guaranties for the
Guarantied Obligations or any part thereof;
(f) release, reconvey, terminate, waive, abandon, subordinate, exchange,
substitute, transfer and enforce any security or guaranties, and apply
any security and direct the order or manner of sale thereof as the
Creditor Parties in the exercise of their commercial discretion may
determine;
(g) release any Person or any guarantor from any personal liability with
respect to the Guarantied Obligations or any part thereof;
(h) settle, release on terms satisfactory to the Creditor Parties or by
operation of applicable laws or otherwise liquidate or enforce any
Guarantied Obligations and any security or guaranty therefor in any
manner, consent to the transfer of any security and bid and purchase at
any sale; and
(i) consent to the merger, change or any other restructuring or
termination of the corporate existence of any Borrower or any other
Person, and correspondingly restructure the Guarantied Obligations, and
any such merger, change, restructuring or termination shall not affect
the liability of any Guarantor or the continuing existence of any Liens
hereunder, under any other Loan Document to which any Guarantor is a
party or the enforceability hereof or thereof with respect to all or any
part of the Guarantied Obligations.
Upon the occurrence of and during the continuance of any Event of
Default, the Creditor Parties may enforce this Guaranty independently as to each
Guarantor and independently of any other remedy or security the Creditor Parties
at any time may have or hold in connection with the Guarantied Obligations, and
it shall not be necessary for the Creditor Parties to marshal assets in favor of
any Guarantor, any Borrower or any other Person or to proceed upon or against
and/or exhaust any other security or remedy before proceeding to enforce this
Guaranty. Each Guarantor expressly waives any right to require the Creditor
Parties to marshal assets in favor of such Guarantor, any Borrower or any other
Person or to proceed against any other Person or any collateral provided by any
other Person, and agrees that the Creditor Parties may proceed against any
Person and/or collateral in such order as they shall determine in their sole and
absolute discretion. The Creditor Parties may file a separate action or actions
against any Guarantor, whether action is brought or prosecuted with respect to
any other security or against any other Guarantor, any Borrower or any other
Person, or whether any other Person is joined in any such action or actions.
Each Guarantor agrees that the Creditor Parties, the Borrowers and any other
Person may deal with each other in connection with the Guarantied Obligations or
otherwise, or alter any contracts or agreements now or hereafter existing
between any of them, in any manner whatsoever, all without in any way altering
or affecting this Guaranty. The Creditor Parties' rights hereunder shall be
reinstated and revived, and the enforceability of this Guaranty shall continue,
with respect to any amount at any time paid on account of the Guarantied
Obligations which thereafter shall be required to be restored or returned by the
Creditor Parties upon the bankruptcy, insolvency or reorganization of any
Borrower, any Guarantor or any other Person, or otherwise, all as though such
amount had not been paid. The enforceability of this Guaranty at all times shall
remain effective to guarantee payment and performance of the full amount of all
the Guarantied Obligations including, without limitation, the amount of all
loans and interest thereon at the rates provided for in the Loan Agreement, even
though the Guarantied Obligations, including any part thereof or any other
security or guaranty therefor, may be or hereafter may become invalid or
otherwise unenforceable as against any Borrower or any other Person and whether
or not any Borrower or any other Person shall have any personal liability with
respect thereto. Each Guarantor expressly waives any and all defenses now or
hereafter arising or asserted by reason of (a) any disability or other defense
of any Borrower or any other Person with respect to the Guarantied Obligations,
(b) the unenforceability or invalidity of any security or guaranty for the
Guarantied Obligations or the lack of perfection or continuing perfection or
failure of priority of any security for the Guarantied Obligations, (c) the
cessation for any cause whatsoever of the liability of any Borrower or any other
Person (other than by reason of the full payment and performance of all
Guarantied Obligations), (d) any failure of any Creditor to marshal assets in
favor of such Guarantor or any other Person, (e) except as otherwise required by
Law or as provided in this Agreement, any failure of any Creditor Party to give
notice of sale or other disposition of collateral to such Guarantor or any other
Person or any defect in any notice that may be given in connection with any sale
or disposition of collateral, (f) except as otherwise required by Law or as
provided in this Agreement, any failure of any Creditor Party to comply with
applicable Laws in connection with the sale or other disposition of any
collateral or other security for any Guarantied Obligation, including without
limitation any failure of any Creditor Party to conduct a commercially
reasonable sale or other disposition of any collateral or other security for any
Guarantied Obligation, (g) any act or omission of any Creditor Party or others
that directly or indirectly results in or aids the discharge or release of any
Borrower, any Guarantor or any other Person or the Guarantied Obligations or any
other security or guaranty therefor by operation of law or otherwise, (h) any
Law which provides that the obligation of a surety or guarantor must neither be
larger in amount nor in other respects more burdensome than that of the
principal or which reduces a surety's or guarantor's obligation in proportion to
the principal obligation, (i) any failure of any Creditor Party to file or
enforce a claim in any bankruptcy or other proceeding with respect to any
Person, (j) the election by any Creditor Party, in any bankruptcy proceeding of
any Person, of the application or non-application of Section 1111(b)(2) of the
United States Bankruptcy Code, (k) any extension of credit or the grant of any
Liens under Section 364 of the United States Bankruptcy Code, (l) any use of
cash collateral under Section 363 of the United States Bankruptcy
Code, (m) any agreement or stipulation with respect to the provision of adequate
protection in any bankruptcy proceeding of any Person, (n) the avoidance of any
Liens in favor of any Creditor Party for any reason, (o) any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, liquidation or
dissolution proceeding commenced by or against any Person, including any
discharge of, or bar or stay against collecting, all or any of the Guarantied
Obligations (or any interest thereon) in or as a result of any such proceeding,
or (p) to the extent permitted, the benefits of any form of one-action rule.
8. Condition of Borrowers and their Subsidiaries. Each Guarantor represents and
warrants to the Creditor Parties that each Guarantor has established adequate
means of obtaining from each Borrower and its Subsidiaries, on a continuing
basis, financial and other information pertaining to the businesses, operations
and condition (financial and otherwise) of each Borrower and its Subsidiaries
and their Properties, and each Guarantor now is and hereafter will be completely
familiar with the businesses, operations and condition (financial and otherwise)
of each Borrower and its Subsidiaries and their Properties. Each Guarantor
hereby expressly waives and relinquishes any duty on the part of any Creditor
Party (should any such duty exist) to disclose to any Guarantor any matter, fact
or thing related to the businesses, operations or condition (financial or
otherwise) of each Borrower or its Subsidiaries or their Properties, whether now
known or hereafter known by the Creditor Parties during the life of this
Guaranty. With respect to any of the Guarantied Obligations, the Creditor
Parties need not inquire into the powers of each Borrower or any Subsidiary
thereof or the officers or employees acting or purporting to act on their behalf
(unless Creditor Parties have actual knowledge that such officers or employees
have no authority to act on their behalf), and all Guarantied Obligations made
or created in good faith reliance upon the professed exercise of such powers
shall be secured hereby.
9. Liens on Real Property. In the event that all or any part of the Guarantied
Obligations at any time are secured by any one or more deeds of trust or
mortgages or other instruments creating or granting Liens on any interests in
real Property, each Guarantor authorizes the Creditor Parties, upon the
occurrence of and during the continuance of any Event of Default, at their sole
option, without notice or demand and without affecting any Guarantied
Obligations of any Guarantor, the enforceability of this Guaranty, or the
validity or enforceability of any Liens of any Creditor Party on any Collateral,
to foreclose any or all of such deeds of trust or mortgages or other instruments
by judicial or nonjudicial sale. Each Guarantor expressly waives any defenses to
the enforcement of this Guaranty or any rights of any Creditor Party created or
granted hereby or to the recovery by the Creditor Parties against any Borrower,
any Guarantor or any other Person liable therefor of any deficiency after a
judicial or nonjudicial foreclosure or sale, even though such a foreclosure or
sale may impair the subrogation rights of any Guarantor or may preclude any
Guarantor from obtaining reimbursement or contribution from any Borrower. Each
Guarantor expressly waives any defenses or benefits that may be derived from
California Code of Civil Procedure Section Section 580a, 580b, 580d or 726, or
comparable provisions of the Laws of any other jurisdiction, and all other
suretyship defenses it otherwise might or would have under California Law or
other applicable Law. Each Guarantor expressly waives any right to receive
notice of any judicial or nonjudicial foreclosure or sale of any real Property
or interest therein subject to any such deeds of trust or mortgages or other
instruments and any Guarantor's or any other Person's failure to receive any
such notice
shall not impair or affect Guarantors' Obligations or the enforceability of this
Guaranty or any rights of any Creditor Party created or granted hereby.
10. Waiver of Rights of Subrogation. Notwithstanding anything to the contrary
elsewhere contained herein or in any other Loan Document to which any Guarantor
is a Party, Guarantors hereby so long as the Guarantied Obligations remain
outstanding expressly waive with respect to any Borrower and its successors and
assigns (including any surety) and any other Person which is directly or
indirectly a creditor of any Borrower or any surety for any Borrower, any and
all rights at Law or in equity to subrogation, to reimbursement, to exoneration,
to contribution, to setoff or to any other rights that could accrue to a surety
against a principal, to a guarantor against a maker or obligor, to an
accommodation party against the party accommodated, or to a holder or transferee
against a maker, and which Guarantors may have or hereafter acquire against any
Borrower or any other such Person in connection with or as a result of
Guarantors' execution, delivery and/or performance of this Guaranty or any other
Loan Document to which any Guarantor is a party. Guarantors agree that so long
as the Guarantied Obligations remain outstanding they shall not have or assert
any such rights against any Borrower or their successors and assigns or any
other Person (including any surety) which is directly or indirectly a creditor
of area Borrower or any surety for any Borrower, either directly or as an
attempted setoff to any action commenced against Guarantors by such Borrower (as
a borrower or in any other capacity), the Creditor Parties or any other such
Person. Guarantors hereby acknowledge and agree that this waiver is intended to
benefit Borrowers and the Creditor Parties and shall not limit or otherwise
affect Guarantors' liability hereunder, under any other Loan Document to which
any Guarantor is a party, or the enforceability hereof or thereof.
11. Right of Contribution. Each Guarantor hereby agrees that to the extent that
a Guarantor shall have paid more than its proportionate share of all payments
made hereunder, provided that the Guarantied Obligations are then satisfied,
such Guarantor shall be entitled to seek and receive contribution from and
against any other Guarantor hereunder who has not paid its proportionate share
of all such payments. The provisions of this Section 11 shall in no respect
limit the obligations and liabilities of any Guarantor to the Creditor Parties,
and each Guarantor shall remain liable to the Creditor Parties for the full
amount guaranteed by such Guarantor hereunder. The "proportionate share" of any
Guarantor shall be a fraction (which shall in no event exceed 1.00) the
numerator of which is the excess, if any, of the fair value of the assets of
such Guarantor over a fair estimate of the liabilities of Guarantor and the
denominator of which is the excess (but not less than $1.00) of the fair value
of the aggregate assets (without duplication) of all Guarantors over a fair
estimate of the aggregate liabilities (without duplication) of all Guarantors.
All relevant calculations shall be made as of the date such Guarantor became a
Guarantor.
12. Understandings With Respect to Waivers and Consents. Each Guarantor warrants
and agrees that each of the waivers and consents set forth herein are made with
full knowledge of their significance and consequences, with the understanding
that events giving rise to any defense or right waived may diminish, destroy or
otherwise adversely affect rights which such Guarantor otherwise may have
against any Borrower, the Creditor Parties or others, or against any Collateral,
and that, under the circumstances, the waivers and consents herein given are
reasonable and not contrary to public policy or Law. Each Guarantor acknowledges
that it has either consulted with legal counsel regarding the effect of this
Guaranty
and the waivers and consents set forth herein, or has made an informed decision
not to do so. If this Guaranty or any of the waivers or consents herein are
determined to be unenforceable under or in violation of applicable Law, this
Guaranty and such waivers and consents shall be effective to the maximum extent
permitted by Law.
13. Costs and Expenses. Each Guarantor agrees to pay to the Creditor Parties all
reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) actually incurred by the Creditor Parties in
the enforcement or attempted enforcement of this Guaranty, whether or not an
action is filed in connection therewith, and in connection with any waiver or
amendment of any term or provision hereof. All reasonable advances, charges,
costs and expenses, including reasonable attorneys' fees and disbursements
(including the reasonably allocated cost of legal counsel employed by the
Creditor Parties), actually incurred or paid by the Creditor Parties in
exercising any right, privilege, power or remedy conferred by this Guaranty, or
in the enforcement or attempted enforcement thereof, shall be subject hereto and
shall become a part of the Guarantied Obligations and shall be paid to the
Creditor Parties by each Guarantor, immediately upon demand, together with
interest thereon at the rate(s) provided for under the Loan Agreement.
14. Liability. The liability of each Guarantor hereunder is independent of any
other guaranties at any time in effect with respect to all or any part of the
Guarantied Obligations, and each Guarantor's liability hereunder may be enforced
regardless of the existence of any such guaranties. Any termination by or
release of any guarantor in whole or in part (whether it be another Guarantor
under this instrument or not) shall not affect the continuing liability of any
Guarantor hereunder, and no notice of any such termination or release shall be
required.
15. Joinder. Any other Person may become a Guarantor under and become bound by
the terms and conditions of this Guaranty by executing and delivering to the
Administrative Agent an Instrument of Joinder substantially in the form attached
hereto as Exhibit A, accompanied by such documentation as the Administrative
Agent may reasonably require to establish the due organization, valid existence
and good standing of such Person, its qualification to engage in business in
each material jurisdiction in which it is required to be so qualified, its
authority to execute, deliver and perform this Guaranty, and the identity,
authority and capacity of each Responsible Official thereof authorized to act on
its behalf.
16. Release of Guarantors. This Guaranty and all Guarantied Obligations of
Guarantors hereunder shall be released when all Obligations of each Party to any
Loan Document have been paid in full in Cash or otherwise performed in full and
when no portion of the Commitment remains outstanding. Upon such release of any
or all of Guarantors' Guarantied Obligations hereunder, the Administrative Agent
shall endorse, execute, deliver, record and file all instruments and documents,
and do all other acts and things, reasonably required to evidence or document
the release of the Creditor Parties' rights arising under this Guaranty, all as
reasonably requested by, and at the sole expense of, Guarantors.
17. WAIVER OF JURY TRIAL. EACH GUARANTOR AND EACH CREDITOR PARTY HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER THIS GUARANTY, ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO THIS GUARANTY, ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE; AND EACH GUARANTOR AND EACH CREDITOR PARTY HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY GUARANTOR OR CREDITOR PARTY
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
18. JURISDICTION. EACH GUARANTOR AND EACH CREDITOR PARTY HEREBY AGREE AND INTEND
THAT THE PROPER AND EXCLUSIVE FORUM FOR ANY LITIGATION OF ANY DISPUTES OR
CONTROVERSIES ARISING OUT OF OR RELATED TO THIS GUARANTY OR ANY OTHER LOAN
DOCUMENTS SHALL BE THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY
OF LOS ANGELES. NOTWITHSTANDING THE FOREGOING, THE PARTIES AGREE THAT, WITH
RESPECT TO ANY COLLATERAL GIVEN BY ANY GUARANTOR OR ANY AFFILIATE THEREOF TO ANY
OF THE CREDITOR PARTIES LOCATED IN STATES OR JURISDICTIONS OTHER THAN
CALIFORNIA, OR IN COUNTIES OF CALIFORNIA OTHER THAN LOS ANGELES COUNTY, THE
ADMINISTRATIVE AGENT SHALL BE ENTITLED ON BEHALF OF SUCH CREDITOR PARTIES TO
COMMENCE ACTIONS IN SUCH STATES OR JURISDICTIONS, OR IN SUCH COUNTIES OF
CALIFORNIA, AGAINST THE GUARANTORS OR ANY AFFILIATE THEREOF OR OTHER PERSONS FOR
THE PURPOSE OF SEEKING PROVISIONAL REMEDIES, INCLUDING ACTIONS FOR CLAIM AND
DELIVERY OF PROPERTY, OR FOR INJUNCTIVE RELIEF OR APPOINTMENT OF A RECEIVER, OR
ACTIONS TO FORECLOSE UPON LIENS GRANTED TO THE CREDITOR PARTIES. EACH GUARANTOR
UNDER THIS GUARANTY, TO THE EXTENT PERMITTED BY APPLICABLE LAWS, HEREBY
EXPRESSLY WAIVES ANY DEFENCE OR OBJECTION TO JURISDICTION OR VENUE BASED ON THE
DOCTRINE OF FORUM NON CONVENIENS, AND STIPULATES THAT THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO SHALL HAVE IN PERSONAM
JURISDICTION AND VENUE OVER SUCH PARTY FOR THE PURPOSE OF LITIGATING ANY DISPUTE
OR CONTROVERSY ARISING OUT OF OR RELATED TO THIS GUARANTY OR ANY OTHER LOAN
DOCUMENTS. IN THE EVENT ANY GUARANTOR OR ANY AFFILIATE THEREOF SHOULD COMMENCE
OR MAINTAIN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS GUARANTY
OR ANY OTHER LOAN DOCUMENTS IN A FORUM OTHER THAN THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO, THE CREDITOR PARTIES SHALL
BE ENTITLED TO REQUEST THE DISMISSAL OR STAY OF SUCH ACTION OR PROCEEDING, AND
THE GUARANTORS AND THEIR AFFILIATES STIPULATE THAT SUCH ACTION OR PROCEEDING
SHALL BE DISMISSED OR STAYED.
19. THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA.
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty by its
duly authorized officer as of the date first written above.
"Guarantors"
JAKKS ACQUISITION CORP.
J-X ENTERPRISES, INC.
XXXX CORPORATION
PENTECH COSMETICS, INC.
SAWDUST PENCIL CO.
PENTECH-MON AMI, INC.
XX XXXXXXX PARKWAY, INC.
By: /s/ XXXX X. XXXXXXX
--------------------------------------
Xxxx X. Xxxxxxx
Title: Exec. V.P./C.F.O.
-----------------------------------
of each of the foregoing
Address for Guarantors:
00000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
EXHIBIT A
TO
GUARANTY
INSTRUMENT OF JOINDER
THIS INSTRUMENT OF JOINDER ("Joinder") is executed as of __________,
____, by _____________________________________, a ___________________________
("Joining Party"), and delivered to Bank of America, N.A., as the Administrative
Agent under the Loan Agreement referred to below (the "Administrative Agent"),
pursuant to the Guaranty dated as of ________, 2001 made by each of the parties
listed on the signature pages thereto (each a "Guarantor" and collectively,
"Guarantors") in favor of the Administrative Agent and each of the lenders that
are party to the Loan Agreement referred to below (each a "Lender" and
collectively, the "Lenders") (as the same may be amended or supplemented from
time to time, the "Guaranty"). Terms used but not defined in this Joinder shall
have the meanings defined for those terms in the Guaranty.
RECITALS
(1) The Guaranty was made by Guarantors in favor of Bank of America, N.A.
pursuant to that certain Loan Agreement dated as of October 12, 2001, by and
among JAKKS Pacific, Inc., a Delaware corporation (the "Company"), Flying Colors
Toys, Inc., a Michigan corporation, Road Champs, Inc., a Delaware corporation,
and Pentech International Inc., a Delaware corporation (collectively, and
together with Company, "Borrowers"), the Lenders and the Administrative Agent
(as the same may be amended or supplemented from time to time, the "Loan
Agreement").
(2) Joining Party is required pursuant to the Loan Agreement to become a
Guarantor.
(3) Joining Party expects to realize direct and indirect benefits as a result of
the availability to the Borrowers of the loan facility under the Loan Agreement.
NOW THEREFORE, Joining Party agrees as follows:
AGREEMENT
(2) By this Joinder, Joining Party becomes a "Guarantor" under and pursuant to
Section 15 of the Guaranty. Joining Party agrees that, upon its execution
hereof, it will become a Guarantor under the Guaranty with respect to all
Obligations heretofore or hereafter incurred under the Loan Documents, and will
be bound by all terms, conditions, and duties applicable to a Guarantor under
the Guaranty.
(3) The effective date of this Joinder is _________, ____.
"Joining Party"
_____________________________________________________________________________
a ___________________________________________________________________________
-1-
By:
Name:
Title:
Address:
Attn:
Telephone:
Facsimile:
ACKNOWLEDGED:
BANK OF AMERICA, N.A.
as Administrative Agent
By:
Name:
Title:
-11-
