Exhibit 10
GUARANTY
Borrower: FIXCOR Industries, Inc., a
Delaware corporation
Guarantor: Xxxx Xxxxxx, an
individual
Borrower has requested that NationsCredit Commercial Corporation,
through its NationsCredit Commercial Funding Division ("Lender") provide
certain financial accommodations to Borrower pursuant to the terms of a Loan
and Security Agreement between Borrower and Lender dated of even date
herewith (as amended from time to time, the "Loan Agreement"). As one of the
conditions to providing financing, Lender has required that Xxxx Xxxxxx
("Guarantor") guaranty all obligations of Borrower to Lender.
For value received and in consideration of any loan, advance or
financial accommodation of any kind whatsoever heretofore, now or hereafter
made, given or granted to Borrower by Lender pursuant to the Loan Agreement;
Guarantor unconditionally guaranties the full and prompt payment when due,
whether at maturity or earlier, by reason of acceleration or otherwise, and
at all times thereafter, of the indebtedness, liabilities and obligations of
every kind and nature of Borrower to Lender (including interest whether or
not permitted in bankruptcy), howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, joint or several, now or
hereafter existing, or due or to become due, in each case arising under the
Loan Agreement and the other Loan Documents, plus all costs and expenses
(including, without limitation, all court costs and reasonable attorneys' and
paralegals' fees and expenses) paid or incurred by Lender in endeavoring to
collect all or any part of such indebtedness, liabilities and obligations
from, or in prosecuting any action against, Guarantor or any other guarantor
of all or any part of such indebtedness, liabilities and obligations (all
such indebtedness, liabilities, obligations, costs and expenses being
hereinafter referred to as "Borrower's Obligations"). All sums becoming due
under this Guaranty shall bear interest from the due date thereof until paid
at the highest rate charged with respect to any of Borrower's Obligations
under the Loan Agreement.
NOTWITHSTANDING ANYTHING IN THIS GUARANTY TO THE CONTRARY, (A) THE
LIABILITY OF GUARANTOR HEREUNDER SHALL NOT EXCEED $750,000.00, PLUS COSTS AND
EXPENSES OF COLLECTION AND PROSECUTION OF ACTIONS AGAINST GUARANTOR AND PLUS
INTEREST AS PROVIDED FOR IN THIS GUARANTY AND (B) LENDER SHALL NOT MAKE ANY
CLAIM FOR PAYMENT PURSUANT TO THIS GUARANTY UNTIL THE EXPIRATION OF THREE
MONTHS AFTER LENDER HAS DELIVERED TO GUARANTOR WRITTEN NOTICE OF LENDER'S
INTENT TO MAKE SUCH CLAIM.
Guarantor agrees that his obligations under this Guaranty are
unconditional, irrespective of (i) the validity or enforceability of
Borrower's Obligations or any note or other instrument evidencing Borrower's
Obligations, (ii) the absence of any attempt by Lender to collect Borrower's
Obligations from Borrower or any other guarantor, (iii) Lender's waiver or
consent with respect to any provision of the Loan Documents, (iv) Lender's
failure to perfect or maintain its security interests in, or to preserve its
rights with respect to, any of the Collateral, (v) Lender's election, in any
proceeding under Chapter 11 of the Bankruptcy Code, of the application of
Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a
security interest by Borrower as debtor-in-possession under Section 364 of
the Bankruptcy Code, (vii) the disallowance, under Section 502 of the
Bankruptcy Code, of all or any of Lender's claims for repayment of Borrower's
Obligations or (viii) any other circumstance which might constitute a legal
or equitable discharge or defense of Borrower or a guarantor.
No payment made by or for the account or benefit of Guarantor
(including (i) a payment made by Borrower in respect of Borrower's
Obligations, (ii) a payment made by any person under any other guaranty of
Borrower's Obligations or (iii) a payment made by means of set off or other
application of funds by Lender) pursuant to this Guaranty shall entitle
Guarantor, by subrogation or otherwise, to any payment by Borrower or from or
out of any property of Borrower, and Guarantor shall not exercise any rights
or remedies against Borrower or any property of Borrower including any right
of contribution, indemnity or reimbursement by reason of any performance by
Guarantor under this Guaranty, all of such rights of subrogation,
contribution, indemnity and reimbursement being hereby waived by Guarantor.
The provisions of this paragraph shall survive the termination of this
Guaranty or the release or discharge of Guarantor from liability hereunder.
Guarantor and Lender hereby agree that Borrower is a third party beneficiary
of the provisions of this paragraph.
Guarantor hereby waives diligence, presentment, demand for payment,
filing of claims with a court in the event of receivership or bankruptcy of
Borrower, protest or notice with respect to Borrower's Obligations and all
demands whatsoever, and covenants that this Guaranty will not be discharged,
except by complete and irrevocable payment and performance of the obligations
and liabilities contained herein. No notice to any party, including
Guarantor, shall be required for Lender to make demand hereunder. Such demand
shall constitute a mature and liquidated claim against Guarantor. At any time
after maturity of Borrower's Obligations, whether by acceleration or
otherwise, Lender may, at its sole election, proceed directly and at once,
without notice, against Guarantor to collect and recover the full amount or
any portion of Borrower's Obligations, without first proceeding against
Borrower or any other person or against any of the Collateral. Lender shall
have the exclusive right to determine the application of payments and
credits, if any, from Guarantor, Borrower or any other person, on account of
Borrower's Obligations.
Lender is hereby authorized, without notice or demand to Guarantor
and without affecting or impairing the liability of Guarantor hereunder, to
from time to time (i) renew, extend, accelerate or otherwise change the time
for payment of, or other terms relating to, Borrower's Obligations or
otherwise modify, amend or change the terms of any promissory note or other
agreement, document or instrument now or hereafter executed by Borrower and
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delivered to Lender, (ii) accept partial payments on Borrower's Obligations;
(iii) take and hold collateral for the payment of Borrower's Obligations, or for
the payment of this Guaranty, or for the payment of any other guaranties or
Borrower's Obligations or other liabilities of Borrower, and exchange, enforce,
waive and release any such security or collateral; (iv) apply such security or
collateral and direct the order or manner of sale thereof as in its sole
discretion it may determine; and (v) settle, release, compromise, collect or
otherwise liquidate Borrower's Obligations and any security or collateral
therefor in any manner.
At any time after maturity of Borrower's Obligations, Lender may, in
its sole discretion, without notice to Guarantor and regardless of the
acceptance of any security or collateral for the payment hereof, appropriate
and apply toward payments of Borrower's Obligations that remain unpaid, (i)
any indebtedness due or to become due from Lender to Guarantor and (ii) any
moneys, credits or other property belonging to Guarantor at any time held by
or coming into the possession of Lender or any affiliates of Lender, whether
for deposit or otherwise.
Guarantor assumes responsibility for keeping himself informed of the
financial condition of Borrower and all other guarantors of all or any of
Borrower's Obligations, and of all other circumstances bearing upon the risk
of nonpayment of Borrower's Obligations or any part thereof that diligent
inquiry might reveal, and Guarantor agrees that Lender shall have no duty to
advise Guarantor of information known to Lender regarding any of the
foregoing. Guarantor acknowledges familiarity with Borrower's financial
condition and represents that he has not relied on any statements made, or
information furnished, by Lender or its agents in obtaining such familiarity.
If Lender provides any such information to Guarantor, Lender shall be under
no obligation to (i) undertake any investigation not a part of its regular
business routine, (ii) disclose any information which, pursuant to accepted
or reasonable commercial finance practices, Lender wishes to maintain
confidential or (iii) make any other or future disclosures of any information
to Guarantor.
Notwithstanding any contrary provision of this Guaranty, it is
intended that neither this Guaranty nor any liens or security interests
securing this Guaranty constitute a "Fraudulent Conveyance" (as defined
below). Consequently, Guarantor agrees that if this Guaranty or any liens or
security interests securing this Guaranty, would, but for the application of
this sentence, constitute a Fraudulent Conveyance, this Guaranty and each
such lien and security interest shall be valid and enforceable only to the
maximum extent that would not cause this Guaranty or such lien or security
interest to constitute a Fraudulent Conveyance, and this Guaranty shall
automatically be deemed to have been amended accordingly at all relevant
times. For purposes hereof, a "Fraudulent Conveyance" means a fraudulent
conveyance under Section 548 of the Bankruptcy Code or a fraudulent
conveyance or fraudulent transfer under any applicable fraudulent conveyance
or fraudulent transfer law or similar law of any state or other governmental
unit as in effect from time to time.
Guarantor waives the right to assert the doctrine of marshaling with
respect to any collateral held by Lender to secure any of the Borrower's
Obligations. Guarantor further agrees that, to the extent Borrower makes one
or more payments to Lender, or Lender receives any
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proceeds of collateral which are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to Borrower, its
estate, trustee, receiver or any other party under the Bankruptcy Code or other
law, that portion of Borrower's Obligations which has been paid, reduced or
satisfied by such payment shall be reinstated and continued in full force and
effect as of the date such initial payment, reduction or satisfaction occurred
and this Guaranty shall continue to be in existence and in full force and
effect, irrespective of whether any evidence of indebtedness or this Guaranty
has been surrendered or canceled.
Guarantor agrees that all payments hereunder shall be made without
setoff or counterclaims and Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices
of dishonor and notices of acceptance of this Guaranty. Guarantor further
waives all notices of the existence, creation or incurring of new or
additional indebtedness, arising either from additional loans extended to
Borrower or otherwise, and also waives all notices that the principal amount,
or any portion thereof, or any interest on any Instrument or document
evidencing all or any part of Borrower's Obligations is due, notices of any
and all proceedings to collect from the maker, any endorser or any other
guarantor of all or any part of Borrower's Obligations, or from anyone else,
and, to the extent permitted by law, notices of exchange, sale, foreclosure,
surrender or other handling of any security or collateral securing payment of
Borrower's Obligations.
No delay on the part of Lender in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise
by Lender of any right or remedy shall preclude any further exercise thereof
except as expressly set forth in a writing duly signed and delivered on
Lender's behalf by an authorized officer or agent of Lender; nor shall any
modification or waiver of any of the provisions of this Guaranty be binding
upon Lender, except as expressly set forth in a writing duly signed and
delivered on Lender's behalf by an authorized officer or agent of Lender.
Lender's failure at any time or times hereafter to require strict performance
by Borrower or Guarantor of any of the provisions, warranties, terms and
conditions contained in any promissory note, security agreement, agreement,
guaranty, instrument or document now or at any time or times hereafter
executed by Borrower or Guarantor and delivered to Lender, shall not waive,
affect or diminish any right of Lender at any time or times hereafter to
demand strict performance thereof and such right shall not be deemed to have
been waived by any act or knowledge of Lender, or its respective agents,
officers or employees, unless such waiver is contained in an instrument in
writing signed by an officer or agent of Lender, and directed to Borrower or
Guarantor, as applicable, specifying such waiver. No waiver by Lender of any
default shall operate as a waiver of any other default or the same default on
a future occasion, and no action by Lender permitted hereunder shall in any
way affect or impair Lender's rights or the obligations of Guarantor under
this Guaranty. Any determination by a court of competent jurisdiction of the
amount of any principal or interest owing by Borrower to Lender shall be
conclusive and binding on Guarantor irrespective of whether Guarantor was a
party to the suit or action in which such determination was made.
Guarantor hereby represents and warrants that (i) it is in
Guarantor's direct interest to assist Borrower in procuring credit, because
Borrower is an affiliate of Guarantor, (ii) this Guaranty has been duly and
validly executed and delivered and constitutes the valid and
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binding obligation of Guarantor, enforceable in accordance with its terms, and
(iii) the execution and delivery of this Guaranty does not violate or constitute
a default under (with or without the giving of notice, the passage of time, or
both) any order, judgment, decree, instrument or agreement to which Guarantor is
a party or by which it or its assets are affected or bound.
This Guaranty shall be binding upon Guarantor and upon the heirs,
legal representatives, successors and permitted assigns of Guarantor and
shall inure to the benefit of Lender and its successors and assigns. All
references herein to Borrower shall be deemed to include its successors and
permitted assigns and all references herein to Lender shall be deemed to
include its successors and assigns. Borrower's and Guarantor's heirs, legal
representatives, successors and permitted assigns shall include a receiver,
trustee, custodian or debtor in possession of or for Borrower or Guarantor or
any of their respective assets. All references to the singular shall be
deemed to include the plural where the context so requires.
GUARANTOR HEREBY CONSENTS AND AGREES THAT THE STATE AND FEDERAL
COURTS IN NEW YORK SHALL HAVE NONEXCLUSIVE JURISDICTION TO HEAR AND DETERMINE
ANY CLAIMS OR DISPUTES WITH RESPECT TO THIS GUARANTY AND WAIVES ANY OBJECTION
WHICH HE MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS TO THE
CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND CONSENTS THAT ALL SERVICE OF
PROCESS UPON GUARANTOR BE MADE BY REGISTERED MAIL OR MESSENGER DIRECTED TO
GUARANTOR AT THE ADDRESS SET FORTH BELOW GUARANTOR'S SIGNATURE AND THAT
SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF.
GUARANTOR HEREBY AGREES THAT ANY CLAIM OR DISPUTE BROUGHT BY GUARANTOR
AGAINST LENDER OR ANY MATTER ARISING OUT OF THIS GUARANTY SHALL BE BROUGHT
EXCLUSIVELY IN THE STATE AND FEDERAL COURTS IN NEW YORK GUARANTOR AND LENDER
EACH HEREBY WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY. NOTHING
CONTAINED HEREIN SHALL AFFECT THE RIGHT OF LENDER TO SERVE LEGAL PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF LENDER TO BRING ANY
ACTION OR PROCEEDING AGAINST GUARANTOR OR ITS PROPERTY IN THE COURTS OF ANY
OTHER JURISDICTION.
THIS GUARANTY SHALL BE GOVERNED IN ALL RESPECTS BY THE INTERNAL LAWS
OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF
LAWS.
Wherever possible each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
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IN WITNESS WHEREOF, this Guaranty has been duly executed by
Guarantor this, 14th day of May, 1997.
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
Address:
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
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