Exhibit 99(d)(8)
GUARANTY
THIS GUARANTY (the "Guaranty") dated as of January 29, 2001, is made by
Xxxxxxx X. Xxxxxxx, a citizen of the State of Florida, United States of America
("Guarantor").
R E C I T A L S
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WHEREAS, Guarantor directly or indirectly owns 77.452% of the issued and
outstanding capital stock of Xxxxxxxxx Enterprises, Inc., a Florida corporation
("Xxxxxxxxx");
WHEREAS, Xxxxxxxxx has entered into the Agreement and Plan of Merger and
Reorganization, dated as of December 29, 2000, as amended as of January 23,
2001, by and among Xxxxxxxxx, Ranger Industries, Inc., a Connecticut corporation
("Ranger"), and BEI Acquisition Corp., a Florida corporation ("BEI") (the
"Merger Agreement"), pursuant to which Xxxxxxxxx will merge with and into BEI
(the "merger), in connection with the Offer to Purchase for Cash up to 4,225,000
Shares of Common Stock of Ranger by Xxxxxxxxx dated December 29, 2000, as
supplemented by supplements dated January 24, 2001 and January 29, 2001(the
"Offer to Purchase");
WHEREAS, Xxxxxxxxx has entered into a loan agreement, as supplemented by
the letters dated January 19, 2001 and January 26, 2001 from Bank (as defined
herein) to Guarantor, (the "Loan Agreement") with Guaranty Bank and Trust
Company, Denver, Colorado (the "Bank"), pursuant to which Ranger has agreed to
deposit $9,000,000 into MMDA Account No. 00000000 immediately after the
consummation of the Merger; and
WHEREAS, upon consummation of the Merger, Guarantor will be the
controlling shareholder of Ranger.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Guarantor hereby agrees as
follows:
1. Definitions. All terms not otherwise defined herein shall have the
meanings given such terms in the Merger Agreement or in the Offer to Purchase,
as defined herein.
2. Unconditional Guaranty. Subject to (a) the closing of merger, and only
if the merger has occurred, (b) the resignation of Ranger directors and
appointment of Xxxxxxxxx designees to the Ranger board of directors and
resignation of Ranger officers as provided in Section 6.4 of the Merger
Agreement, and (c) notification to the Bank of those changes in Ranger's
management, guarantor hereby (i) unconditionally, absolutely and irrevocably
guarantees to Ranger the full and timely performance of the obligation of
Xxxxxxxxx and Ranger to close and fund the Offer to Purchase as provided in the
Merger Agreement, including the deposit of $9,000,000 into MMDA Account No.
00000000 by Ranger, under the Loan Agreement (the "Obligations"), all in
accordance with the terms and conditions thereof, and as if Guarantor were the
primary obligor with respect to each and all of the Obligations, and (ii) agrees
to take all action necessary to cause Ranger and Xxxxxxxxx and each of their
respective affiliates to comply in all material respects with all such
obligations.
3. Continuing Guaranty, Separate Obligation. Guarantor's covenants,
agreements, duties and obligations under this Guaranty (i) shall be of a
continuing nature; (ii) shall cover the obligations as if each and all of the
Obligations were the primary obligations of the Guarantor;
and (iii) shall be irrevocable and unconditional irrespective of the validity or
enforceability of any of the Obligations.
4. Waiver. Except as prohibited by applicable law, Guarantor hereby hereby
unconditionally, absolutely and irrevocably waives (i) promptness, diligence,
notice of acceptance and any other notice with respect to this Guaranty and (ii)
any other action, event or precondition to the enforcement of this Guaranty or
the performance by Guarantor of the Obligations hereunder.
5. Representations, Warranties and Covenants. The Guarantor hereby
represents, warrants and covenants with Ranger that this Guaranty has been duly
authorized, executed and delivered by the Guarantor and constitutes the legal,
valid and binding obligation of the Guarantor, and is enforceable against the
Guarantor in accordance with its terms.
6. Amendment. This Guaranty may not he amended, modified, supplemented or
extended, or the terms hereof waived except by an instrument in writing signed
by the parties hereto;
7. Waiver; Non-Contractual Remedies, Neither the failure nor delay on the
part of any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party of
any such right, power or privilege, nor any single or partial exercise of any
right, power or privilege, preclude any further exercise of any other such
right, power or privilege. To the maximum extent permitted by applicable law,
(i) no claim or right arising out of this Guaranty can be discharged, in whole
or in part, by a waiver or renunciation of the claim or right unless in writing
signed by the party to be charged therewith; and (ii) no waiver that may be
given by a party will be applicable except in the specific instance in which it
is given. The rights and remedies of the parties hereto herein provided are
cumulative and are not exclusive of any rights or remedies that any party may
otherwise have at law or equity.
8. Remedies. Guarantor acknowledges and agrees that, in the event of any
breach of this Guaranty by Guarantor, Ranger and its stockholders would be
irreparably harmed and therefore, in addition to any other remedies to which
Ranger and its stockholders may be entitled at law or in equity, they shall also
be entitled to an injunction or injunctions to compel specific performance of
this Guaranty without the posting of bond or other security and without actual
proof of damages.
9. Legal Fees. In the event that any action, suit or other proceeding is
brought to enforce the obligations of the Guarantor under this Guaranty, the
prevailing party shall be entitled to recover all of such party's costs and
expenses (including, without limitation, court costs and attorneys' fees)
incurred in each and every such action, suit or other proceeding. As used
herein, "attorneys' fees" shall mean the full and actual costs of any legal
services actually rendered in connection with the matters involved, calculated
on the basis of the usual fee charged by the attorneys services, and shall not
be limited to "reasonable attorneys' fees" as defined by any statute or court.
10. Severability. If any term or provision of this Guaranty is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other terms and provisions of
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this Guaranty shall remain in full force and effect. Any term or provision of
this Guaranty held invalid, illegal or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid, illegal or
unenforceable.
11. Effect of Waivers. The Guarantor warrants and agrees that each of the
waivers set forth herein is made with the Guarantor's full knowledge of its
significance and consequences and that, under the circumstances, the waivers are
reasonable and are not contrary to law or public policy.
12. Governing Law. This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of Connecticut regardless of the laws
that might otherwise govern under applicable principles of conflict of laws.
13. Counterparts. This Guaranty may be executed in one or more
counterparts, each of which when executed shall be deemed an original but all of
which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, this Guaranty has been executed and delivered by
Guarantor on January 29, 2001.
GUARANTOR
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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