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Exhibit 10.23
GUARANTY
Cosmar Corporation
Three Pickwick Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
February 28, 1995
Houbigant, Inc.
0000 Xxxxxxxx Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Chemical Bank New Jersey,
National Association
Xxx Xxxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000-0000
National Westminster Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Gentlemen:
Reference is made to the License Agreement dated the 10th day of
August, 1994 between Houbigant, Inc. ("Houbigant") and Parfums Parquet
Incorporated (f/k/a New Fragrance License Corp.) ("PPI"), (said License
Agreement, as amended on August 16, 1994, September 16, 1994 and September 21,
1994, and as it may hereafter be amended or otherwise modified from time to
time, the "License Agreement"), pursuant to which Houbigant licensed to PPI
certain trade marks, trade names and/or applications therefore and the technical
knowledge with respect thereto owned and controlled by Houbigant. All terms not
otherwise defined herein being used herein are as defined in the License
Agreement.
SECTION 1. Guaranty. Cosmar Corporation, f/k/a C.P. Cosmetics Inc.,
("Guarantor") hereby unconditionally and irrevocably guarantees to Houbigant and
Chemical Bank New Jersey, National Association ("Chemical") as collateral agent
for itself (the "Agent") and National Westminster Bank USA ("NatWest")
(collectively, Chemical and NatWest are hereafter referred to as the "Banks")
the prompt and complete payment and performance of all obligations under the
License Agreement of its subsidiary, PPI (the "Obligations").
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SECTION 2. Enforcement of Guaranty. This is a guarantee of payment and
not of collection. In the event of the occurrence of an event of default under
the terms of the License Agreement by PPI, after the expiration of any
applicable cure periods, Houbigant or the Agent may proceed to exercise any
right or remedy which it may have under this Guaranty without pursuing or
exhausting any right or remedy which it may have against PPI or any other person
or entity.
SECTION 3. Guaranty Absolute. The obligations of the Guarantor
hereunder shall be absolute and unconditional irrespective of the validity,
legality or enforceability of the License Agreement or any other circumstance
(other than payment) which might constitute a legal or equitable discharge of a
surety or guarantor, it being agreed that the Obligations of the Guarantor
hereunder shall not be discharged except by payment as herein provided.
SECTION 4. Guaranty Not Affected. Without limiting the generality of
Section 3, the Guarantor hereby consents and agrees that, at any time and from
time to time:
(a) the time, manner, place and/or terms of payment of performance of
all or any of the Obligations may be extended or changed;
(b) any action may be taken under or in respect of the License
Agreement in the exercise of any remedy, power or privilege therein contained or
otherwise with respect thereto, or such remedy, power or privilege may be
waived, omitted or not enforced; and
(c) the License Agreement may be amended or modified in any respect;
without notice to or further assent from the Guarantor, and all without
affecting this Guaranty or the obligations of the Guarantor, which shall
continue in full force and effect until all of the Obligations and all of the
obligations of the Guarantor shall have been fully paid and performed.
SECTION 5. Waiver. The Guarantor hereby waives notice of acceptance of
this Guaranty, presentment, demand, protest, notice of the occurrence of any
event of default and any other notice of any kind whatsoever, with respect to
any or all of the Obligations hereof, and promptness in making any claim or
demand hereunder; and no act or omission of any kind in the premises shall in
any way affect or impair this Guaranty.
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SECTION 6. Reinstatement. This Guaranty shall continue to be effective
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored or
returned by Houbigant or the Agent.
SECTION 7. Subrogation. The Guarantor hereby waives all rights of
subrogation, reimbursement, indemnity, exoneration, contribution or any other
claim which the Guarantor may now or hereafter have against PPI or any other
person directly or contingently liable for the Obligations, guaranteed
hereunder, or against or with respect to PPI's property, arising from the
existence or performance of this Guaranty.
SECTION 8. Representations and Warranties. The Guarantor hereby
represents and warrants that, as of the date hereof:
(a) The execution, delivery and performance by it of this Guaranty are
duly authorized by all necessary corporate actions, do not contravene or violate
(i) any material provision of law, (ii) the Guarantor's charter or bylaws, (iii)
any material contractual restriction binding on or affecting the Guarantor or
(iv) any material law, rule or regulation of any applicable governmental or
quasi-governmental authority, and do not result in or require the creation of
any lien, security interest or other charge or encumbrance upon or with respect
to any of its properties.
(b) This Guaranty constitutes the legal, valid and binding obligation
of the Guarantor, enforceable against the Guarantor in accordance with its
terms.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority, regulatory body or any other party
is required for the due execution, delivery and performance by the Guarantor of
this Guaranty.
(d) The Guarantor's net worth is in excess of $10,000,000.
(e) There are no pending material court or administrative proceedings
or undischarged judgments against the Guarantor and no Federal or state tax
liens have been filed or threatened against the Guarantor nor is the Guarantor
in default or claimed default under any agreement for borrowed money.
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(f) The Guarantor shall furnish its current financial statements,
including the Guarantor's annual financial statements, to Houbigant and the
Agent on the same regular basis as such information must be provided by the
Guarantor to its lenders and, upon the request of Houbigant or the Agent, shall
permit Houbigant or Houbigant's representatives or the Agent or the Agent's
representatives to inspect the Guarantor's financial records at the Guarantor's
offices.
SECTION 9. Continuing Guaranty. The Guarantor hereby represents and
agrees that this is a continuing guaranty and (a) shall remain in full force and
effect until payment in full of the Obligations and any and all expenses which
might be incurred by Houbigant or the Agent in collecting any or all of the
Obligations and/or enforcing any rights hereunder including, without limitation,
the reasonable fees and expenses of Houbigant's counsel or the Agent's counsel
and (b) shall inure to the benefit of and be enforceable by Houbigant or the
Agent and their successors, transferees and assigns.
SECTION 10. Governing Law. This Guaranty shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to principles of conflicts of law. The Guarantor hereby submits to the
jurisdiction of the Courts of the State of New York and to the Federal Courts
located within the City of New York. The Guarantor further consents to the entry
and enforcement of any judgment against the Guarantor in the courts of the
jurisdiction in which and to which the Guarantor or any of its property is
present or is subject.
SECTION 11. Net Worth. The Guarantor shall at all times maintain a
minimum net worth of not less than $10,000,000 until such time as the Banks have
been paid in full the allowed amount of their claims under a confirmed and
effective plan of reorganization for Houbigant.
SECTION 12. Due and Payable. If (a) the Guarantor or PPI should at any
time become insolvent or make a general assignment for the benefit of creditors,
or if a petition in bankruptcy or any insolvency or reorganization proceedings
shall be filed or commenced by, against, or in respect of PPI or the Guarantor;
(b) any representation or warranty made by the Guarantor herein or in any
writing furnished to Houbigant or the Agent in connection with the Guaranty
shall be incorrect, false or misleading in any material respect on the date as
of which made; (c) the Guarantor shall default in the punctual and
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complete performance or observance of the terms of this Guaranty, or any
agreement pertaining hereto or otherwise obligating the Guarantor to Houbigant
and the Agent; (d) the Guarantor shall have concealed, removed, or permitted to
be concealed or removed any part of its property, with intent to hinder, delay
or defraud its creditors, or any of them, or made or suffered a fraudulent
transfer or conveyance under any applicable bankruptcy, fraudulent transfer or
similar law, or shall have permitted or suffered any creditor to obtain a lien
upon any material portion of its property through judicial or legal proceedings
or distraint; or (e) the Guarantor shall have been dissolved, liquidated or its
existence terminated, then any and all of the Obligations shall, forthwith, for
purposes hereof, be deemed due and payable without notice notwithstanding that
any such Obligation is not then due and payable by PPI.
SECTION 13. Severability. If a court of competent jurisdiction shall
invalidate any provision of this Guaranty, such judgment shall not invalidate or
otherwise affect any other provision hereof.
IN WITNESS WHEREOF, the Guarantor has duly executed and delivered this
Guaranty as of the date first above written.
COSMAR CORPORATION
By:___________________________
Name:_________________________
Title:________________________
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