Exhibit 10.12
GUARANTY (UNLIMITED)
In consideration of Citizens Bank of Massachusetts (hereinafter called the
"Bank") extending credit or otherwise in its discretion giving time, financial
or other accommodations, whether now existing or hereafter arising, to The J.
Xxxx Group, Inc. ("Borrower"), a Delaware corporation, including, without
limitation, those arising pursuant to a certain Fourth Amended and Restated Loan
Agreement between Bank and 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 Bank's offices at 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 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 reasonable 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 (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 (a "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
reasonable costs and expenses (including court costs and reasonable 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 rate then in
force under the instruments evidencing the extension of credit, financial or
other accommodations between Borrower and Bank.
The liability of the Guarantor hereunder shall be unlimited in amount.
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 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 after Default 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.
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
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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 of 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.
So long as any Obligation remains unpaid or undischarged, 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.
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 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.
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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the 7th day
of August, 2000.
X. XXXX DIRECT, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: President
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