Exhibit 10.3
This Corporate Guaranty is subject to the terms of a
Subordination and Intercreditor Agreement in favor of The CIT
Group/Commercial Services, Inc., as agent for itself and for CIT
Financial Ltd., which Subordination and Intercreditor Agreement is
incorporated herein by reference. Notwithstanding any contrary
statement contained in the within Corporate Guaranty, no payment on
account of principal or interest thereof shall become due or be paid
except in accordance with the terms of such Subordination and
Intercreditor Agreement.
CORPORATE GUARANTY
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, and to induce EPIC Aviation, LLC ("EPIC") to enter in to
that certain Loan Agreement with Ronson Aviation, Inc. ("Debtor"), of even date
herewith (the "Loan Agreement") the undersigned Ronson Corporation
("Guarantor"), being the corporate parent of Debtor, hereby unconditionally and
absolutely guarantees the full and prompt payment and performance of all present
and future obligations of Debtor to EPIC, up to an aggregate amount of FIVE
HUNDRED THOUSAND AND 00/100 U.S. Dollars ($500,000.00), arising from Debtor's
obligations to EPIC under the Loan Agreement, whether such obligations are due
or to become due, secured or unsecured, absolute or contingent, joint or several
(collectively, the "Obligations"). GUARANTOR'S OBLIGATION UNDER THIS CORPORATE
GUARANTY ("GUARANTY") IS A GUARANTY OF PAYMENT AND NOT OF COLLECTION. SHOULD ANY
PRESENT OR FUTURE OBLIGATIONS UNDER THE LOAN AGREEMENT INCURRED BY DEBTOR NOT BE
PAID WHEN DUE, EPIC MAY PROCEED AGAINST THE GUARANTOR FOR SUCH INDEBTEDNESS AT
ANY TIME, WITHOUT NOTICE AND WITHOUT ANY PROCEEDING OR ACTION AGAINST DEBTOR,
AND GUARANTOR HEREBY WAIVES ANY DEMAND FOR PAYMENT. This Guaranty is a primary
obligation of Guarantor and shall be construed as an unconditional, absolute and
continuing guaranty, irrespective of the validity or enforceability of the
underlying agreements between EPIC and Debtor or any other guaranteed amount,
the absence of any action to enforce the same or any circumstances which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
Guarantor hereby waives notice of acceptance of this Guaranty, of the creation
or existence of any of the guaranteed Obligations and of any action by EPIC in
reliance hereon or in connection herewith, notice of the transactions between
EPIC and Debtor, notice of the execution and delivery, amendment, extension or
renewal of any present or future instrument pertaining to Obligations,
diligence, presentment, demand for payment, protest, notice of default by
Debtor, and any other notice not expressly required by this Guaranty. Guarantor
further consents, without further notice, to any extension or extensions of the
time or times of payment of said Obligations, or any portion thereof, and to any
change in form or amount, or renewal at any time, of such Obligations, or any
portion thereof, in each case up to an aggregate amount of FIVE HUNDRED THOUSAND
AND 00/100 U.S. Dollars ($500,000.00), but under no circumstances will the
liability of Guarantor under this Guaranty for the Obligations exceed FIVE
HUNDRED THOUSAND AND 00/100 U.S. Dollars ($500,000.00).
This Guaranty shall remain in full force and effect with respect to the
Obligations until finally and irrevocably paid in full. No termination of this
Guaranty shall affect any Obligations outstanding or contracted or committed for
at the time of termination, and this Guaranty shall remain in full force and
effect with respect to such Obligations until finally and irrevocably paid in
full. In the event that any payment to EPIC in respect of the Obligations is
rescinded or must otherwise be returned for any reason whatsoever, Guarantor
shall remain liable hereunder in respect of such Obligations as if such payment
had not been made. Guarantor reserves the right to assert defenses that Debtor
may have to payment of any
Obligation other than defenses arising from the bankruptcy or insolvency of
Debtor or similar proceedings affecting Debtor and other defenses expressly
waived hereby.
Guarantor's obligations hereunder with respect to the Obligations shall not be
affected by the existence, validity, enforceability, perfection or extent of any
collateral for such Obligations covered hereunder, nor by any extension, or the
acceptance of any sum or sums on account of Debtor, or of any note or draft of
Debtor and/or any third party, or security from Debtor. EPIC shall not be
obligated to file any claim relating to the Obligations owing to it in the event
that Debtor becomes subject to bankruptcy, insolvency, reorganization,
liquidation, dissolution, or similar proceedings affecting Debtor (whether
voluntary or involuntary), and the failure of EPIC to so file shall not affect
Guarantor's obligations hereunder.
Should any present or future Obligations incurred by Debtor not be paid when due
or at the time to which the same may be extended, EPIC may proceed against
Guarantor for such Obligations at any time, without notice and without any
proceeding or action against Debtor. Guarantor agrees that EPIC may resort to
Guarantor for payment of any of the Obligations, whether or not EPIC shall have
resorted to any collateral security, or shall have proceeded against any other
debtor principally or secondarily obligated with respect to any of the
Obligations or any other guarantor thereof.
With the exception of inter-company payments that cannot be disturbed, Guarantor
shall not exercise any rights which it may have or acquire by way of subrogation
to the rights of EPIC until all of the Obligations are paid in full to EPIC. If
any amounts are paid to Guarantor in violation of the foregoing limitation, then
such amounts shall be held in trust for the benefit of EPIC and shall forthwith
be paid to EPIC by Guarantor to reduce the amount of outstanding Obligations,
whether matured or unmatured. Subject to the foregoing, upon payment of all of
the Obligations to EPIC, Guarantor shall be subrogated to the rights of EPIC
against Debtor, and EPIC agrees to take, at Guarantor's expense, such actions as
Guarantor may reasonably require to implement such subrogation.
The obligations of Guarantor hereunder shall not be subject to any counterclaim,
setoff, deduction, abatement or defense based upon any claim Guarantor or the
Debtor may have against EPIC.
The obligations of Guarantor hereunder shall not be affected by (a) any lack of
validity or enforceability of or defect or deficiency in any Agreement or any
other documents executed in connection with any Agreement; (b) any modification,
extension or waiver of any of the terms of any Agreement; (c) any change in the
time, manner, terms or place of payment of or in any other term of, all or any
of the Obligations, or any other amendment or waiver of or any consent to
departure from any Agreement or any other agreement or instrument executed in
connection therewith; (d) any sale, exchange, release or non-perfection of any
property standing as security for the liabilities hereby guaranteed or any
liabilities incurred directly or indirectly hereunder or any setoff against any
of said liabilities, or any release or amendment or waiver of or consent to
departure from this Guaranty or any other guaranty, for all or any of the
Obligations; (e) except as to applicable statutes of limitation, failure,
omission, delay, waiver or refusal by EPIC to exercise, in whole or in part, any
right or remedy held by EPIC with respect to any Agreement or any transaction
under any Agreement; (f) any change in the existence, structure or ownership of
Guarantor or any Debtor, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting any Debtor or its assets; or (g) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, any Debtor or any other individual, partnership, joint venture,
corporation, association, trust or other enterprise that is a party to any
Agreement, or any other agreement or instrument (including any guarantor) in
respect of the Obligations, other than payment in full of the Obligations.
This Guaranty shall not be affected by any change in the entity status or
business structure of Debtor. If Debtor's assets or a major portion thereof are
transferred to any other party or parties otherwise than by operation of law,
and if EPIC enters into any transaction whereby such transferee or transferees
become indebted to EPIC, this Guaranty, subject to all the other terms hereof,
shall apply to any Obligations or balance of Obligations of such other
transferee or transferees to EPIC.
This Guaranty shall inure to and be binding upon the parties, their
representatives, successors and assigns, provided that Guarantor may not assign
or otherwise transfer any of its obligations under this Guaranty, whether by
operation of law or otherwise, without the prior written consent of EPIC, which
consent may be arbitrarily withheld. EPIC may not assign this Guaranty, whether
by operation of law or otherwise, without the prior written consent of the
Guarantor, which consent may not be unreasonably withheld. In the event EPIC
engages in litigation to enforce this Guaranty, Guarantor agrees to pay, in
addition to any amounts of Debtor which Guarantor has otherwise guaranteed to
pay hereunder, any and all costs and expenses incurred by EPIC (including
reasonable attorneys' fees) in enforcing this Guaranty, whether at arbitration,
trial or upon appeal.
Guarantor represents and warrants that, at the time of execution and delivery of
the Guaranty, nothing (whether financial condition or any other condition or
situation) exists to impair in any way the obligations and liabilities of
Guarantor to EPIC under this Guaranty. Guarantor further represents and warrants
to EPIC that: (a) it is a corporation duly organized, validly existing and in
good standing in its jurisdiction of incorporation, with full power and
authority to make and deliver this Guaranty; (b) that the execution, delivery
and performance of this Guaranty by Guarantor have been duly authorized by all
requisite corporate action of Guarantor, and does not and will not violate
provisions of any applicable law or Guarantor's certificate of incorporation or
bylaws; and (c) that the person signing this Guaranty on Guarantor's behalf has
been properly authorized by corporate action to do so.
This Guaranty constitutes the entire agreement among the parties and supersedes
and cancels any prior agreements, undertakings, declarations and
representations, whether written or oral, regarding the subject matter of this
Guaranty. If any provision of this Guaranty is found by a court of competent
jurisdiction to be void, illegal or otherwise unenforceable in that
jurisdiction, such provision, to the extent of its invalidity, shall be severed
from this Guaranty and be ineffective in that jurisdiction; provided, however,
that such finding shall not affect the validity, legality or enforceability of
such provision in any other jurisdiction or the validity, legality or
enforceability of any other provision of this Guaranty.
The rights and duties of the Guarantor, Debtor and EPIC under this Guaranty
shall be construed and enforced in accordance with, and governed by the laws of,
the State of Oregon, without regard to local conflict of law rules.
Guarantor hereby irrevocably submits to the jurisdiction of the State of Oregon
and consents to venue in Oregon. Guarantor further agrees that it will not claim
that such forum is an inconvenient forum and specifically waives any and all
objections to having any dispute relating to this Agreement resolved in Xxxxxx
County Circuit Court in Salem, Oregon.
Notwithstanding any other provision to the contrary herein, any and all rights
of EPIC hereunder, including, without limitation, to repayment of the
Obligations, is and shall be subordinated to the prior payment and satisfaction
of any and all loans, advances and extensions of credit made by The CIT
Group/Commercial Services, Inc., as agent for itself and CIT Financial Ltd.
(collectively, "CIT"), to Guarantor, and to Ronson Aviation, Inc., Ronson
Consumer Products Corporation and Ronson Corporation of Canada Ltd. (together
with Guarantor, the "RONSON Group"), and to all other
indebtedness, obligations and liabilities of the RONSON Group to CIT; and, if
requested by CIT, EPIC hereby agrees to enter into a subordination agreement
prescribed by CIT in evidence of the foregoing.
IN WITNESS WHEREOF, the Guarantor has duly executed this Guaranty on this 30th
day of May, 2007.
RONSON CORPORATION
By: /s/ Xxxxx X. Xxxxxxx XX
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Name: Xxxxx X. Xxxxxxx XX
Title: President and Chief Executive Officer
Guarantor's Address: Corporate Park III
Xxxxxx Xxxxx, X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx XX
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Guarantor's Federal Tax Identification Number: 00-0000000
