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EXHIBIT 10.36
GUARANTY OF PAYMENT
GUARANTY dated March 12, 1998, made by Xxxxxxxx X. Xxxxxxx (the "Guarantor"), in
favor of CARNEGIE BANK, N.A., having an office at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxx Xxxxxx 00000 (the "Bank").
Blue Fish Clothing, Inc. (the "Borrower"), desires to obtain loans or other
financial accommodations from the Bank. The Bank is unwilling to extend the
accommodations unless it receives this Guaranty. The Guarantor wishes the
accommodations to be made and will derive advantage from such accommodations.
Accordingly, to induce the Bank, in its discretion, to make such loans or
accommodations:
SECTION 1. GUARANTY. The Guarantor hereby unconditionally guarantees to the
Bank the prompt payment, when due, whether by acceleration or otherwise, of all
present or future obligations or liabilities of the Borrower to the Bank,
whether now existing or arising after the date of this Guaranty, secured or
unsecured, absolute or contingent, together with all modifications, extensions
or renewals of the obligations or liabilities. This Guaranty covers obligations
and liabilities incurred by the Borrower in any capacity (including as maker,
endorser, guarantor, accommodation party or otherwise) and also includes the
amount of any payment made by the Borrower to the Bank which payment is
rescinded or must otherwise be returned by the Bank upon the insolvency or
bankruptcy of the Borrower. This Guaranty covers obligations and liabilities
incurred by the Borrower under any indemnification provisions set forth in the
documents evidencing and securing such obligations and liabilities. Such
obligations and liabilities, together with interest and all fees, cost,
expenses, attorneys' fees and other costs of collection incurred or paid by the
Bank, are together referred to as the "Indebtedness".
SECTION 2. GUARANTY ABSOLUTE. The Guarantor will pay all Indebtedness in
accordance with its terms. The liability of the Guarantor under this Guaranty is
absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of any documents
evidencing (or relating) to the Indebtedness;
(ii) any change in the time, manner, place or amount of payment or in
any other term of all or any of the Indebtedness, or any other
amendment or waiver of or any consent to departure from the terms
of the Indebtedness;
(iii) any exchange, release or non-perfection of any collateral or lien
securing all or any part of the Indebtedness, which exchange,
release or non-perfection the Guarantor expressly agrees will not
be deemed an unjustifiable impairment of the collateral;
(iv) any release or amendment or waiver of or consent to departure
from any other guaranty, for all or any part of the Indebtedness;
(v) any settlement or compromise with any Borrower or any other
person relating to the Indebtedness; or
(vi) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, any Borrower in respect
to the Indebtedness or the Guarantor in respect of this Guaranty.
This Guaranty will continue to be effective, or be reinstated, as the case may
be, if at any time any of the Indebtedness is rescinded or must otherwise be
returned by the Bank upon the insolvency or bankruptcy of any Borrower or
otherwise, all as though such payment had not been made.
SECTION 3. WAIVER. The Guarantor waives presentment, demand, diligence,
notice of acceptance and any other notice with respect to any of the
Indebtedness and/or this Guaranty and any requirement that the Bank exhaust any
right or take any action against the Borrower or any other person or entity or
any collateral.
SECTION 4. REPRESENTATION AND WARRANTIES. The Guarantor represents and
warrants:
(a) The execution and delivery of this Guaranty and the performance
of its obligations under this Guaranty have been authorized by
all necessary action.
(b) No authorization, or registration with, any court or governmental
department, commission, agency or instrumentality, is or will be
necessary to the valid execution, delivery or performance of the
Guaranty.
(c) This Guaranty constitutes the legal, valid and binding obligation
of the Guarantor, enforceable against the Guarantor in accordance
with its terms.
(d) The Guarantor has made whatever inquiry into the financial or
other affairs of the Borrower, and the terms of any Indebtedness,
as it deems necessary or desirable prior to executing this
Guaranty and has not relied on the Bank for any such information.
(e) The Guarantor shall provide the Bank with any and all financial
information and/or financial statements as requested by the Bank,
including annual financial statements and manually signed copies
of federal and state tax returns, which shall be satisfactory to
the Bank.
SECTION 5. ACCELERATION. The Guarantor agrees that, if the maturity of any
of the Indebtedness is accelerated, by bankruptcy or otherwise, as against the
Borrower, the maturity shall also be deemed accelerated for the purposes of this
Guaranty, and without demand on or notice to the Guarantor.
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SECTION 6. AMENDMENTS, ETC. This Guaranty represents the entire agreement
of the parties. No amendment or waiver of any provision nor consent to departure
by the Guarantor from any provision is effective unless in writing and signed by
the Bank, and then the waiver or consent will be effective only in the special
instance and for the specific purpose given.
SECTION 7. NOTICES. All notices required or permitted under this Guaranty
shall be given to the parties at the address stated in this Guaranty (or at any
other address a party may designate) in writing, sent by first class mail,
postage prepaid, and is deemed complete upon mailing.
SECTION 8. NO WAIVER; REMEDIES. No failure on the part of the Bank to
exercise, and no delay in exercising, any right under this Guaranty shall
operate as a waiver of such right, nor shall any single or partial exercise of
any right preclude any further exercise of such right or of any other right. All
remedies provided in this Guaranty and in any document evidencing or relating to
any Indebtedness are cumulative.
SECTION 9. RIGHT OF SET-OFF; SECURITY INTEREST. On the occurrence and
during the continuance of any default under the Indebtedness, the Bank is
authorized at any time, without notice to the Guarantor to set off and apply to
any unpaid Indebtedness: (a) any amounts which the Bank from time to time may
owe the Guarantor, including any balance or share of any general or special
deposit, certificate of deposit, savings, certificates or other account
(regardless of the source or intended use of any funds in such account), and (b)
any other property, tangible or intangible, owned by or in which the Guarantor
has an interest which may be in the possession or control of the Bank, in which
accounts and other property the Guarantor grants the Bank a security interest.
This right is in addition to and not in limitation of any other rights,
including of set-off, which the Bank may have by law.
SECTION 10. CONTINUING GUARANTY; ASSIGNMENT. This Guaranty is a continuing
guaranty and will: (a) remain in full force and effect until payment in full of
the Indebtedness and all other amounts payable under this Guaranty, (b) extend
to and cover every modification, waiver, extension or renewal of and every
obligation accepted in substitution for, the Indebtedness, (c) be binding upon
the Guarantor, its successors and assignees and; (d) inure to the benefit of and
be enforceable by the Bank and its successors, transferees and assigns.
SECTION 11. OTHER GUARANTORS. The obligations of each Guarantor under this
Guaranty shall be joint and several as to each other and all other guarantors of
the Indebtedness. This Guaranty shall not be impaired or affected in any way as
to the Guarantor by any termination, revocation, release, modification,
discharge or substitution of collateral or changes as to any or all of the
liabilities or undertakings of any other guarantor.
SECTION 12. GUARANTY NOT MODIFIED BY BANKRUPTCY. Neither the Guarantor's
obligation in accordance with the terms of this Guaranty, nor any remedy for the
enforcement, nor the amount of the Indebtedness of the Borrower will be
impaired, modified, or limited in any manner whatsoever by any impairment,
modification, discharge, limitation of the Indebtedness of the Borrower or its
estate in bankruptcy or any remedy for the enforcement, resulting from the
operation of any present or future provision of the Bankruptcy Code of the
United States or other statute, or from the decision of any court interpreting
any of the same, and each Guarantor is obligated under this Guaranty. The amount
of the Indebtedness will, for the purposes of this Guaranty, be determined as if
no such impairment, stay, modification, discharge, or limitation had occurred.
SECTION 13. GOVERNING LAW. This Guaranty will be governed by, and construed
in accordance with, the laws of the State of New Jersey. In the event the Bank
brings any action hereunder in any court of record of New Jersey or the Federal
Government, the Guarantor consents to and confers personal jurisdiction over the
Guarantor by such court or courts and agrees that service of process may be made
upon the Guarantor by mailing a copy of such process to the Guarantor.
SECTION 14. WAIVER OF JURY TRIAL. EACH GUARANTOR WAIVES TRIAL BY JURY IN
ANY ACTION UNDER OR RELATING TO THIS GUARANTY AND TO THE INDEBTEDNESS OF THE
BORROWER TO THE BANK.
Witness or Attest: Guarantor(s):
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx
