GUARANTY AGREEMENT
October 21, 1998
To: THE CIT GROUP/BUSINESS CREDIT, INC.
Address: 00 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: XXXXX ELECTROSTATIC, INC. (THE "COMPANY")
Ladies and Gentlemen:
Reference is made to that certain Financing Agreement of even date
herewith, as amended from time to time (herein the "Agreement"), between you
and the Company. The undersigned ("Guarantor") hereby unconditionally
guarantees and agrees to be liable for the full and indefeasible payment and
performance when due of all now existing and future indebtedness, obligations
or liabilities of the Company to you, howsoever arising, whether direct or
indirect, absolute or contingent, secured or unsecured, whether arising under
the Agreement as now written or as amended or supplemented hereafter, or by
operation of law or otherwise, including, without limitation, all Obligations
(as that term is defined in the Agreement) owed by the Company to you. In
addition, Guarantor agrees to pay to you on demand (a) the amount of all
expenses (including reasonable attorney's fees) incurred by you in collecting
or attempting to collect any of the Company's obligations to you, whether
from the Company, or from any other obligor under the Agreement, or from
Guarantor, or in realizing upon any collateral, and (b) interest at the
highest lawful rate on all amounts payable to you thereunder, even if such
amount cannot be collected from the Company. (All of the aforementioned
obligations, liabilities, expenses and interest are hereinafter collectively
called the "Obligations").
To the extent you receive payment on account of Obligations, which
payment is thereafter set aside or required to be repaid by you in whole or
in part, then, to the extent of any sum not finally retained by you
(regardless of whether such sum is recovered from you by the Company, its
trustee, or any other party acting for, on behalf of or through the Company
or its representative), Guarantor's obligation to you under this Guaranty, as
amended, modified or supplemented, shall remain in full force and effect (or
be reinstated) until Guarantor has made payment to you therefor, which
payment shall be due upon demand.
This Guaranty is executed as an inducement to you to make loans or
advances to the Company or otherwise to extend credit or financial
accommodations to the Company, or to enter into or continue a financing
arrangement with the Company, and is executed in consideration of your doing
or having done any of the foregoing. Guarantor agrees that any of the
foregoing shall be done
or extended by you in your sole discretion, and shall be deemed to have been
done or extended by you in consideration of and in reliance upon the
execution of this Guaranty, but that nothing herein shall obligate you to do
any of the foregoing.
Notice of acceptance of this Guaranty, the making of loans or advances,
or the extension of credit under the Agreement, the amendment, execution or
termination of the Agreement or any other agreements in connection therewith,
and presentment, demand, protest, notice of protest, notice of non-payment
and all other notices to which Guarantor may be entitled (whether under this
Guaranty or the Agreement), and your reliance on this Guaranty are hereby
waived. Guarantor also waives notice of changes in terms or extensions of the
time of payment, the taking and releasing of collateral or guarantees
(including the release of any of Guarantor) and the settlement, compromise or
release of any Obligations, and agree that, as to Guarantor, the amount of
the Obligations shall not be diminished by any of the foregoing. Guarantor
also agrees that you need not attempt to collect any Obligations from any
other guarantor of all or part of the Obligations, or any other obligor with
respect thereto, or to realize upon any collateral securing the Obligations,
but may require Guarantor to make immediate payment of Obligations to you
when due or at any time thereafter. You shall not be liable for failure to
collect Obligations or to realize upon any collateral or security therefor,
or any part thereof, or for any delay in so doing, nor shall you be under any
obligation to take any action whatsoever with regard thereto.
This Guaranty is absolute, unconditional and continuing, regardless of
the validity, regularity or enforceability of any of the Obligations or the
fact that a security interest or lien in any collateral or security therefor
may not be enforceable by you or may otherwise be subject to equities or
defenses or prior claims in favor of others or may be invalid or defective in
any way and for any reason, including any action, or failure to act, on your
part. Payment by Guarantor shall be made to you at your office from time to
time on demand as Obligations become due, and one or more successive or
concurrent actions may be brought hereon against Guarantor either in the same
action or in separate actions. In the event any claim or action, or action
on any judgment, based on this Guaranty, is made or brought against
Guarantor, Guarantor agrees not to assert against you any set-off or
counterclaim which the Company may have, and, further, Guarantor agrees not
to deduct, set-off, or seek to counterclaim for or recoup, any amounts which
are or may be owed by you to Guarantor, or for any loss of contribution from
any other guarantor. Furthermore, in any litigation based on this Guaranty
in which you and Guarantor shall be adverse parties, Guarantor hereby waives
the right to interpose any defense based upon any statute of limitations or
any claim of laches, and waives the performance of each and every condition
precedent to which Guarantor might otherwise be entitled by law. Guarantor
hereby consents to the in personam jurisdiction of the courts of the State of
Illinois. In the event that you bring any action or suit in any court of
record in Illinois (whether State or Federal) to enforce any or all
liabilities of Guarantor hereunder, service of process may be made on
Guarantor by mailing a copy of the summons to Guarantor at the address set
forth below.
All sums at any time to the credit of Guarantor and any property of
Guarantor on which you at any time have a lien or security interest, or of
which you at any time have possession, shall secure payment and performance
of all Obligations and any and all other obligations of Guarantor to you
however arising. Guarantor shall have no right of subrogation,
indemnification or recourse to any Obligations or collateral or guarantees
therefor, or to any assets of the Company.
Upon the occurrence of any of the following events:
(a) any Event of Default under, or the termination of, the Agreement;
(b) the failure of Guarantor to observe or perform any agreements,
warranties or covenants contained herein; or
(c) the dissolution or cessation of Guarantor's business, or the
calling of a meeting of the creditors of Guarantor for the purposes of
compromising the debts of Guarantor, or the failure of Guarantor to meet its
debts as they mature, or the commencement by or against Guarantor of any
bankruptcy, insolvency, arrangement, reorganization, receivership or similar
proceeds under any foreign, federal or state law;
then, the liabilities of Guarantor for the entire Obligations shall
immediately mature and be due and payable.
This Guaranty may be terminated only as of any Anniversary Date (as
defined in the Agreement) and then only upon actual receipt by one of your
officers of at least ten (10) Business Days prior written notice of
termination sent by registered or certified mail; provided however, that
Guarantor shall remain bound hereunder, and this Guaranty shall continue in
full force and effect, with respect to any and all Obligations created or
arising prior to the effective date of such termination and with respect to
any and all extensions, renewals or modifications of said pre-existing
Obligations. Termination of this Guaranty by Guarantor shall not relieve
Guarantor from liability for any post-termination collection expenses or
interest. This is a continuing agreement and written notice as above
provided shall be the only means of termination, notwithstanding the fact
that for certain periods of time there may be no Obligations owing to you by
the Company.
Your books and records showing the account between you and the Company
shall be admissible in evidence in any action or proceeding as prima facie
proof of the items therein set forth. Your monthly statements, if any,
rendered to the Company shall be binding upon Guarantor (whether or not
Guarantor received copies thereof) and shall constitute an account stated
between you and the Company unless you shall have received a written
statement of the Company's exceptions within thirty (30) days after the
statement was mailed to the Company.
Guarantor expressly waives any and all rights of subrogation,
reimbursement, indemnity, exoneration, contribution or any other claim which
it may now or hereafter have against the Company or any other person directly
or contingently liable for the Obligations guaranteed hereunder, or against
or with respect to the Company's property (including, without limitation,
property collateralizing its Obligations to you) arising from the existence
or performance of this Guaranty.
This Guaranty embodies the whole agreement of the parties and may not be
modified except in writing, and no course of dealing between you and
Guarantor shall be effective to change or modify this Guaranty. Your failure
to exercise any right hereunder shall not be construed as a waiver of the
right to exercise the same or any other right at any other time and from time
to time thereafter, and such rights shall be considered as cumulative rather
than alternative. No knowledge by you of any breach or other nonobservance
by Guarantor of the terms and provisions of this Guaranty shall constitute a
waiver thereof, nor a waiver of any obligations to be performed by Guarantor
hereunder.
This Guaranty may be assigned by you and shall be for your benefit and
for the benefit of any of your assignees or transferees, and shall cover any
Obligations owed to you at the time of assignment or transfer as well as any
and all future Obligations, loans, advances or extensions of credit made to
the Company by, or otherwise owed by the Company to, such assignee or
transferee.
This instrument is executed and given in addition to, and not in
substitution, reduction, replacement, or satisfaction of, any other
endorsements or guarantees of the Obligations, now existing or hereafter
executed by Guarantor or others in your favor.
When used in this agreement, all pronouns shall, wherever applicable, be
deemed to include the singular and plural as well as the masculine, feminine,
and neuter genders. This agreement shall inure to the benefit of you, your
successors and assigns and any parent, subsidiary or affiliate of yours;
shall be binding upon Guarantor and upon the successors and assigns of
Guarantor; and shall pertain to the Obligations owed by the Company and its
successors and assigns.
This Guaranty may be executed in any number of counterparts, each of
which when so executed shall be deemed an original and such counterparts
shall together constitute but one and the same document.
This Guaranty shall be governed by and construed in accordance with the
laws of the State of Illinois.
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GUARANTOR AND YOU EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING ARISING OUT OF THIS GUARANTY.
IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty
effective as of the date above set forth.
BINKS XXXXX CORPORATION
Adress: 0000 Xxxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000 --------------------------------
Title: V.P. and
Chief Financial Officer
STATE OF ILLINOIS )
)
COUNTY OF XXXX )
The undersigned, a Notary Public in and for the above State and County,
does hereby certify that on October 16, 1998, before me personally appeared
Xxxxxxx X. Xxxxxxxx, known to me to be the V.P. and Chief Financial Officer
of the corporation which executed the foregoing instrument of Guaranty, and
who being by me duly sworn, did depose and say that the foregoing instrument
of Guaranty was signed and delivered by said officer on authority of the
board of directors of said corporation, as the free and voluntary act and
deed of said corporation , for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand.
/s/ Xxxxxxx Xxxxx
---------------------------------
Notary Public
Commission Expires: 3/25/02
