EXHIBIT 10.7
FTC COMMERCIAL CORP.
FORM OF GUARANTY
To induce FTC COMMERCIAL CORP. (hereinafter referred to as "FTC")
to enter into
a Factoring Agreement and an Inventory Loan Facility Agreement with
J. LINDEBERG
USA, LLC (hereinafter referred to as the "Principal"), both dated
July 28, 2008,
and any subsequent amendments thereto and other related or
subsequent agreements
between FTC and the Principal (hereinafter collectively and separately
referred
to as the "FTC Agreements"), and in consideration thereof and for
other good and
valuable
consideration,
the receipt
and sufficiency of which is hereby
acknowledged, the Undersigned (which term refers both to each of
the Undersigned
individually and to all or any two or more jointly) hereby jointly
and severally
unconditionally and
irrevocably deliver this Guaranty to FTC and hereby jointly
and severally
unconditionally
and irrevocably guarantee to FTC, and any
transferee of this Guaranty or of any liability guaranteed hereby, the full
and
prompt payment
and performance of all present and future liabilities,
obligations and
indebtedness
of the Principal to FTC irrespective of their
nature, the
time they arise, when due, whether absolute or contingent,
liquidated or unliquidated, legal or equitable, whether the
Principal is liable
individually or
jointly or with
others, and
whether recovery thereof is or
becomes barred by a statute of limitations or otherwise becomes unenforceable
(individually a
"Liability"
and collectively the "Liabilities"). If any
Liability is not paid or performed when due, the Undersigned hereby
agree to and
will immediately pay or perform the same, without resort by FTC to
the Principal
or any other person or party.
The Liabilities include all renewals or extensions in whole or in
part of any of
the Liabilities
and the full
performance by the
Principal of all things to be
done by the Principal
pursuant to the FTC Agreements and shall further include
any and all damages,
losses, costs,
interest, charges, attorney's fees and
expenses of every
kind, nature and description suffered or incurred by FTC,
arising in any manner out of or in any way connected with, or growing out of,
the Liabilities.
As used herein,
the term person
includes natural persons,
partnerships,
limited liability
companies,
trusts,
and incorporated and
unincorporated entities and associations of every kind.
The obligation
of the Undersigned to FTC hereunder is primary, unlimited,
absolute and
unconditional. Any
payment by the
Undersigned to FTC under or in
connection with this Guaranty may be applied to any of the
Liabilities,
in any
order or manner as FTC may choose at is sole discretion. The obligation of the
Undersigned under this
Guaranty is in addition to and shall not prejudice or be
prejudiced by any
other agreement,
instrument,
surety, security or guaranty
(including any
agreement,
instrument,
surety or guaranty signed by the
Undersigned) which
FTC may now or hereafter hold relative to any of the
Liabilities. The
Undersigned, if more
than one, shall be jointly and severally
liable hereunder.
Any entity
signing this Guaranty shall be bound hereby,
whether or not any other entity signs this Guaranty at any
time.
FTC and the Undersigned acknowledge that there may be
future advances of monies
by FTC to the
Principal (although
FTC may be under no
obligation to make such
advances) and that the
number and amount of the Liabilities are unlimited and
may fluctuate from time to time hereafter. The Undersigned expressly agree
that
the Undersigned's
obligation
hereunder shall remain absolute, primary and
unconditional notwithstanding such future advances and
fluctuations, if any, and
agree that, in any
event, this
Guaranty is a
continuing
guaranty and shall
remain in force at all
times hereafter, whether there are any Liabilities
outstanding or not,
until all originals of this Guaranty are returned to the
Undersigned by FTC, or until the Undersigned gives FTC at least sixty (60)
days
prior written notice of the Undersigned's termination of this Guaranty and
such
written notice has been received and acknowledged by FTC, but such
termination
shall not release the Undersigned from any obligation for payment
of (i) any and
all Liabilities
(as defined
above) then in
existence,
(ii) any renewals or
extensions of Liabilities then in existence, in whole or in part, whether such
renewals or
extensions
are made before or after the effective date of such
termination, and (iii) any damages, losses, costs, interest,
charges, attorney's
fees or expenses then or thereafter incurred in connection with the
Liabilities
then in existence or any renewals or extensions thereof.
As security
for the payment of the Liabilities and the obligations of the
Undersigned under this
Guaranty, the Undersigned hereby assign and grant a
security interest
to FTC in (i) any
existing or hereafter created lien or
security interest in
favor of the Undersigned in any property of the Principal;
and (ii) all property of the Undersigned, including, without limitation,
property of the Undersigned coming into the possession,
control, or custody of
FTC, or in which FTC has or hereafter acquires any rights. However,
the property
referred to in the previous sentence (in both subsections (i) and
(ii)) does not
include any membership or ownership interest of the Undersigned in
William Rast
Sourcing, LLC and William Rast Licensing, LLC. To the extent authorized by
law,
including the Uniform
Commercial Code, the
Undersigned authorize
FTC to file,
without the Undersigned's signature, or to sign the Undersigned's
name as debtor
on, financing
statements and amendments thereto and continuations thereof, in
order to create or maintain the security
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interests granted to FTC by this Guaranty. The Undersigned hereby
agree that any
rights the Undersigned may now or hereafter have in any collateral
securing any
of the Liabilities or against the Principal or in any property of
the Principal,
including rights
arising by virtue of subrogation or otherwise, shall be
subordinate and junior
to FTC's rights to
said collateral
or property and to
FTC's indefeasible
right to the prior payment of the Liabilities. The
Undersigned further
authorize FTC, without notice or demand, to apply any
indebtedness due or to become due to the Undersigned from FTC in
satisfaction of
any of the Liabilities and the Undersigned's obligations under this Guaranty,
including, but not
limited to, the right to set-off against any deposits of the
Undersigned with FTC.
The Undersigned
hereby consent and agree that, at any
time or times,
without
notice to or further
approval of the Undersigned or the Principal, and without
in any way affecting the obligations of the Undersigned hereunder,
FTC may, with
or without consideration, (i) release, compromise, or agree not to
sue, in whole
or in part,
the Principal, any of the Undersigned or any other obligor,
guarantor, endorser or
surety of the FTC
Agreements in connection with any of
the Liabilities; (ii) waive, rescind, renew, extend, modify,
increase, decrease,
delete, terminate,
amend, or accelerate, either in whole or in part, the
FTC
Agreements in accordance with their terms, or any of the terms thereof;
or any
of the Liabilities, or any agreement, covenant, condition, or obligation of or
with the Principal,
any of the
Undersigned, or any
other obligor,
guarantor,
endorser or surety of the FTC Agreements; and (iii) apply any payment
received
from the Principal,
any of the Undersigned
or any other
obligor, guarantor,
endorser or surety of any of the Liabilities to any of the Liabilities in any
order or manner as FTC may choose in its sole discretion.
The Undersigned hereby
consent and agree that FTC may at any time, either with
or without
consideration,
surrender, release or
receive any property or other
security of any kind or nature whatsoever (whether the property or security
is
held by FTC or any
person on FTC's behalf
or for FTC's account
securing any
indebtedness of the Principal or any Liability), or substitute any
collateral so
held by FTC for other collateral of like kind, or of any kind,
without notice to
or further consent from the Undersigned. Such surrender, receipt, release or
substitution shall not
in any way affect
the obligation of the Undersigned
hereunder. FTC shall have full authority to adjust, compromise and receive less
than the amount due upon any such collateral, and may enter into any accord
and
satisfaction agreement with respect to the same as may seem
advisable to FTC, in
its sole discretion, without affecting the obligation of the Undersigned
hereunder
