Exhibit 10.3
Form of Guaranty
November 11, 2004
XXXXXXXXX & XXXXXXXXX, INC.
0000 XXXXXXXX
XXX XXXX, XX 00000
In order to induce you to enter into a Financing Agreement, with Alliance
Distributors Holding, Inc. (hereinafter referred to as the "Client"), effective
as of November 11, 2004 ( the "Financing Agreement") and/or to continue under or
to refrain at this time from terminating your present arrangement with the
Client, and in consideration of your so doing, the undersigned and each of them
if more than one hereby represent and warrant to you that each and every
receivable referred to or defined in said Financing Agreement and in which the
Client has granted you a security interest will represent a bona fide existing
obligation of a customer of the Client and owing to the Client and arising out
of and acquired by the Client in the ordinary course of its business and which
will be due and owing to the Client without any defense, offset or counterclaim
that was in existence and, after due inquiry, known to the Client prior to the
shipment of goods or rendering of service giving rise to the receivable and
without any dispute, whether as to price, terms, quality or otherwise, arising
from defects in goods, or non-compliance with purchase orders, that was known to
the Client prior the shipment of goods or rendering of services giving rise to
the receivable; that all remittances received by the Client on account of
receivables will be held by the Client as your property; and that the Client
will immediately deliver, to you, the identical checks, monies or other forms of
payment received and that Client will not breach any warranty, covenant or
representation contained Section 6.8 of the Financing Agreement other than a
breach arising solely from the assertion by a customer obligated on a receivable
of a defense, offset or counterclaim that was not (i) in existence or (ii) after
due inquiry, known to the Client, prior to the shipment of the goods or
rendering of service giving rise to the receivable.
The undersigned and each of them further represent and warrant that all goods,
merchandise and warehouse receipts, if any, from time to time consigned to or
pledged with you by the Client shall be properly and correctly designated as to
description, quantity, quality and unit value in each schedule, warehouse
receipt and consignment relating to the same tendered to you by the client; and
that the same shall actually be, at the time of such tender, at the location
described in such schedules and consignments.
The undersigned and each of them hereby waive notice of acceptance hereof and of
all notices of any kind to which they may be entitled and further waive notice
of and hereby consent to any agreement or arrangements whatever with the client
or anyone else including, without being limited to, agreements and arrangements
for payment, extension, subordination, composition, arrangement, compromise,
discharge or release of the whole or any part of any indebtedness or for the
change or surrender of any and all such goods, merchandise and warehouse
receipts, and same shall in no way impair the undersigned's liability hereunder.
The undersigned and each of them waive the benefits of any provision of the
Bankruptcy Code and of any similar or other legislation as now or hereafter
enacted, amended or added to, which may extend the time for payment of, or
impair any of the obligations of the undersigned hereunder. This agreement shall
continue in full force and effect until actual receipt by you from the
undersigned of written notice of cancellation, but such cancellation shall be
applicable only to transactions having their inception thereafter and in no way
shall affect the continuing liability of those of the undersigned who do not
give you such notice.
The undersigned will, at all reasonable times, and at your request, assist you
in the collection and liquidation of the receivables.
The undersigned further agrees that in the event of any breach of the warranties
and representations herein contained, the undersigned shall be jointly and
severally liable to Xxxxxxxxx for any loss or damage suffered by Xxxxxxxxx as a
result of such breach, and for costs, expense and reasonable attorney's fees.
This agreement shall be binding upon the heirs, personal representatives,
successors and assigns of each of the undersigned and the benefits thereof shall
extend to and include the successors and assigns of Xxxxxxxxx. The death of any
of the undersigned shall not release his estate from any liability accruing
prior to death. This agreement shall be construed and governed by the laws of
the state of New York. Words used herein shall have the same meaning as the
words used in said Financing Agreement and any supplements and/or amendments
thereto.
This agreement supersedes the Guaranties executed in your favor by the
undersigned Xxx Xxxxxx and Xxxxx Xxxxxx, dated December 9, 2003.
DATED: November 15, 2004
WITNESS:
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Xxx Xxxxxx
Address:
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SS#:
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WITNESS:
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Xxxxx Xxxxxx
Address:
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SS#:
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