EXHIBIT (10)(S)
MERCHANTS NATIONAL BANK 000 Xxxx 0xx Xxxxxx Post Office Box 000 Xxxxxx Xxxxxxxxx
55987-0248
COMMERCIAL CONTINUING GUARANTY (UNLIMITED)
GUARANTOR: HAMPSHIRE DESIGNERS, INC.
ADDRESS: 0000 XXXXXXXX 00XX XXXXX
XXX XXXX, XX 00000
IDENTIFICATION NO.: 00-0000000
BORROWER: HAMPSHIRE GROUP, LIMITED
ADDRESS: 000 XXXXXXXX XXXX.
P.O. BOX 2667
ANDERSON SC 29621
IDENTIFICATION NO.: 00-0000000
1. CONSIDERATION. This Guaranty is being executed to induce Xxxxxx
indicated above to enter into one or more loans or other financial
accommodations with or on behalf of Borrower.
2. GUARANTY. Guarantor hereby unconditionally guarantees the prompt and
full payment and performance of Xxxxxxxx's present and future, joint and/or
several, direct and indirect, absolute and contingent, express and implied,
indebtedness, liabilities, obligations and covenants (cumulatively
"Obligations") to Lender. Guarantor's Obligations under this Guaranty shall be
unlimited and shall include all present or future Obligations between Borrower
and Lender (for whatever purpose), together with all interest and all of
Lender's expenses and costs, incurred in connection with the Obligations,
including any amendments, extensions, modifications, renewals, replacements or
substitutions thereto.
3. ABSOLUTE AND CONTINUING NATURE OF GUARANTY. Guarantor's obligations
under this Guaranty are absolute and continuing and shall not be affected or
impaired if Lender amends, renews, extends, compromises, exchanges, fails to
exercise, impairs or releases any of the obligations belonging to any Borrower,
Co-guarantor or third party or any of Lender's rights against any Borrower,
Co-guarantor, third party, or collateral. In addition, Guarantor's Obligations
under this Guaranty shall not be affected or impaired by the death,
incompetency, termination, dissolution, insolvency, business cessation, or other
financial deterioration of any Borrower, Guarantor, or third party.
4. DIRECT AND UNCONDITIONAL NATURE OF GUARANTY. Guarantor's Obligations
under this Guaranty are direct and unconditional and may be enforced without
requiring Lender to exercise, enforce, or exhaust any right or remedy against
any Borrower, Co-guarantor, third party, or collateral.
5. WAIVER OF NOTICE. Guarantor hereby waives notice of the acceptance of
this Guaranty; notice of present and future extensions of credit and other
financial accommodations by Lender to any Borrower; notice of the obtaining or
release of any guaranty, assignment, or other security for any of the
Obligations notice of presentment for payment, demand, protest, dishonor,
default, and nonpayment pertaining to the Obligations and this Guaranty and all
other notices and demands pertaining to the Obligations and this Guaranty as
permitted by law.
6. WAIVER OF JURY TRIAL. XXXXXX AND GUARANTOR KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO
ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THE
PROMISSORY NOTE, THIS GUARANTY AND ANY OTHER AGREEMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR LENDER MAKING THE LOAN EVIDENCED BY THE
PROMISSORY NOTE.
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7. DEFAULT. Guarantor shall be in default under this Guaranty in the
event that any Borrower or Guarantor:
(a) fails to pay any amount under this Guaranty or any other
indebtedness to Lender when due (whether such amount is due by acceleration or
otherwise);
(b) fails to perform any obligation or breaches any
warranty or covenant to Lender contained in this Guaranty or any other present
or future written agreement;
(c) provides or causes any false or misleading signature or
representation to be provided to Lender;
(d) allows any collateral for the Obligations or this Guaranty to
be destroyed, lost or stolen, or damaged in any material respect;
(e) permits the entry or service of any garnishment, judgment,
tax levy, attachment or lien against Xxxxxxxx, Guarantor, or any of their
property or the Collateral;
(f) dies, becomes legally incompetent, is dissolved or
terminated, ceases to operate its business, becomes insolvent, makes an
assignment for the benefit of creditors, or becomes the subject of any
bankruptcy, insolvency or debtor rehabilitation proceeding; or
(g) causes Lender to deem itself insecure in good faith for any
reason.
8. RIGHTS OF LENDER ON DEFAULT. If there is a default under this
Guaranty, Lender shall be entitled to exercise one or more of the following
remedies without notice or demand (except as required by law):
(a) to declare Guarantor's Obligations under this Guaranty
immediately due and payable in full;
(b) to collect the outstanding obligations under this Guaranty
with or without resorting to judicial process;
(c) to set-off Guarantor's Obligations under this Guaranty
against any amounts due to Guarantor including, but not limited to, monies,
instruments, and deposit accounts maintained with Lender; and
(d) to exercise all other rights available to Lender under any
other written agreement or applicable law.
Xxxxxx's rights are cumulative and may be exercised together, separately, and in
any order.
10. WAIVER OF DEFENSES. The Guarantor waives all defenses, claims, and
discharges of Borrower or any other third party pertaining to the Obligations,
except the defense of payment in full. The Guarantor will not assert against the
Lender any defense of waiver, release, discharge in bankruptcy, statute of
limitations res judicata, statute of frauds, anti-deficiency statute, fraud,
incapacity, illegality or unenforceability which may be available to Borrower or
any third party, whether or not on account of a related transaction. The
Guarantor agrees that the Guarantor shall be liable for any deficiency remaining
after foreclosure of any mortgage or security interest securing the Obligations,
whether or not the liability of Borrower or any other third party for the
deficiency is discharged by statute or judicial decision.
GUARANTOR ACKNOWLEDGES GUARANTOR HAS READ, UNDERSTANDS, AND AGREES TO THE TERMS
AND CONDITIONS OF THIS AGREEMENT INCLUDING THE TERMS AND CONDITIONS ON THE
REVERSE SIDE. XXXXXXXXX HAS EXECUTED THIS AGREEMENT WITH THE INTENT TO BE
LEGALLY BOUND. GUARANTOR ACKNOWLEDGES RECEIPT OF AN EXACT COPY OF THIS
AGREEMENT.
DATED: APRIL 1, 1996
GUARANTOR: HAMPSHIRE DESIGNERS, INC. GUARANTOR:
/s/ Xxxxxxx X. Xxxxxxx, Vice President
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GUARANTOR: GUARANTOR:
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GUARANTOR: GUARANTOR:
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10. SUBORDINATION. The payment of any present or future indebtedness of
Borrower to Guarantor will be postponed and subordinated to the payment in full
of any present or future indebtedness of Borrower to Lender during the term of
this Agreement. In the event that Guarantor receives any monies, instruments, or
other remittances to be applied against Borrower's obligations to Guarantor,
Guarantor will hold these funds in trust for Lender and immediately endorse or
assign (if necessary) and deliver these monies, instruments and other
remittances to Lender. Guarantor agrees that Xxxxxx shall be preferred to
Guarantor in any assignment for the benefit of Xxxxxxxx's creditors in any
bankruptcy, insolvency, liquidation, or reorganization proceeding commenced by
or against Borrower in any federal or state court.
11. INDEPENDENT INVESTIGATION. Guarantor's execution and delivery to
Lender of this Guaranty is based solely upon Guarantor's independent
investigation of Xxxxxxxx's financial condition and not upon any written or oral
representation of Lender in any manner. Guarantor assumes full responsibility
for obtaining any additional information regarding Xxxxxxxx's financial
condition and Lender shall not be required to furnish Guarantor with any
information of any kind regarding Borrower's financial condition.
12. ACCEPTANCE OF RISKS. Guarantor acknowledges the absolute and
continuing nature of this Guaranty and voluntarily accepts the full range of
risks associated herewith including, but not limited to, the risk that
Borrower's financial condition shall deteriorate or the risk that Borrower shall
incur additional Obligations to Lender in the future.
13. SUBROGATION. The Guarantor hereby irrevocably waives and releases the
Borrower from all "claims" (as defined in Section 101(5) of the Bankruptcy Code)
to which the Guarantor is or would, at any time, be entitled by virtue of its
obligations under this Guaranty, including, without limitation, any right of
subrogation (whether contractual, under Section 509 of the Bankruptcy Code or
otherwise), reimbursement, contribution, exoneration or similar right against
the Borrower.
14. APPLICATION OF PAYMENTS. Lender will be entitled to apply any
payments or other monies received from Borrower, any third party, or any
collateral against Xxxxxxxx's present and future obligations to Lender in any
order.
15. TERMINATION. This Guaranty shall remain in full force and effect until
Xxxxxx executes and delivers to Guarantor a written release thereof.
Notwithstanding the foregoing, Guarantor shall be entitled to terminate any
guaranty as to Borrower's future Obligations to Lender following any anniversary
of this Guaranty by providing Lender with ten (10) or more days' written notice
of such termination by hand-delivery or certified mail. Notice shall be deemed
given when received by Xxxxxx. Such notice of termination shall not affect or
impair any of the agreements and obligations of the Guarantor under this
Agreement with respect to any of the obligations existing prior to the time of
actual receipt of such notice by Lender, any extensions or renewals thereof, and
any interest on any of the foregoing.
16. ASSIGNMENT. Guarantor shall not be entitled to assign any of its
rights or obligations described in this Guaranty without Lender's prior written
consent which may be withheld by Lender in its sole discretion. Lender shall be
entitled to assign some or all of its rights and remedies described in this
Guaranty without notice to or the prior consent of Guarantor in any manner.
Unless the Lender shall otherwise consent in writing, the Lender shall have an
unimpaired right prior and superior to that of any assignee, to enforce this
Guaranty for the benefit of the Lender, as to those Obligations that the Lender
has not assigned.
17. MODIFICATION AND WAIVER. The modification or waiver of any of
Guarantor's obligations or Xxxxxx's rights under this Guaranty must be contained
in a writing signed by Xxxxxx. Lender may delay in exercising or fail to
exercise any of its rights without causing a waiver of those rights. A waiver on
one occasion shall not constitute a waiver on any other occasion.
18. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon and inure
to the benefit of Guarantor and Xxxxxx and their respective successors, assigns,
trustees, receivers, administrators, personal representatives, legatees, and
devisees.
19. NOTICE. Any notice or other communication to be provided under this
Guaranty shall be in writing and sent to the parties at the addresses described
in this Guaranty or such other addresses as the parties may designate in writing
from time to time.
20. SEVERABILITY. If any provision of this Guaranty violates the law or
is unenforceable, the rest of the Guaranty shall remain valid.
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21. APPLICABLE LAW. This Guaranty shall be governed by the laws of the
state indicated in Lender's address. Guarantor consents to the jurisdiction and
venue of any court located in such state in the event of any legal proceeding
under this Guaranty.
22. COLLECTION COSTS. Xxxxxx hires an attorney to assist in collecting
any amount due or enforcing any right or remedy under this Guaranty, Guarantor
agrees to pay Xxxxxx's attorneys' fees, legal expenses and other costs as
permitted by law.
23. REPRESENTATIONS OF GUARANTOR. Guarantor acknowledges receipt of
reasonably equivalent value in consideration for the execution of this Guaranty
and represents that, after giving effect to this Guaranty, the fair market value
of Guarantor's assets exceeds Guarantor's total liabilities, including
contingent, subordinate and unliquidated liabilities, that Guarantor has
sufficient cash flow to meet debts as they mature, and that Guarantor does not
have unreasonably small capital.
24. MISCELLANEOUS. This Guaranty is executed in connection with a
commercial loan. Guarantor will provide Lender with a current financial
statement upon request. All references to Guarantor in this Guaranty shall
include all entities or persons signing this Guaranty. If there is more than one
Guarantor, their obligations shall be joint and several. This Guaranty and any
related documents represent the complete and integrated understanding between
Guarantor and Lender pertaining to the terms and conditions of those documents.
25. ADDITIONAL TERMS. THIS GUARANTY SHALL EXPIRE ON APRIL 1, 1997.
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CORPORATE RESOLUTION
The undersigned Clerk/Secretary/Assistant Clerk/Secretary of Hampshire
Designers, Inc. ("Company"), a corporation duly organized and existing under the
laws of the State of Delaware hereby certifies that, X at a meeting of the Board
of Directors of the Company duly called and held at 0000 Xxxxxxxx, Xxxx xx Xxx
Xxxx, Xxxxxx xx Xxx Xxxx, Xxxxx of New York on February 7, 1996, at which
meeting a quorum was continuously present ____ pursuant to a unanimous written
consent of all members of the Board of Directors the following resolutions were
unanimously adopted, are now in full force and effect and have not been modified
or rescinded in any manner:
RESOLVED that any _____________________ ( ________________) of the
following persons:
_____ President _____ any Assistant Treasurer
X any Vice President _____ Clerk/Secretary
_____ any Assistant Vice President X any Assistant Clerk/Secretary
X Treasurer _____ Other
(collectively "Authorized Party") is authorized and empowered to perform one or
more of the following actions (if checked) with Merchants National Bank
("Lender"); for and on behalf of the Company and on such terms and conditions as
any Authorized Party may deem advisable in his sole discretion (The execution of
any agreement, document or instrument shall constitute a conclusive presumption
that the terms, covenants and conditions of said documents so signed are agreed
to by and binding on the Company):
X Open and maintain any safety deposit boxes, lock boxes and escrow, savings,
checking, depository, or other accounts;
X Assign, negotiate, endorse and deposit in and to such boxes and accounts any
checks, drafts, notes and other instruments and funds payable to or belonging to
the Company.
X Withdraw any funds or draw, sign and deliver in the name of the Company any
check or draft against funds of the Company in such boxes or accounts;
Implement additional depository and funds transfer services (including,
but no limited to, facsimile signature authorizations, wire transfer agreements,
automated clearing house agreements, and payroll deposit programs);
X Obtain one or more loans or other forms of financing in any amount from the
Lender (including, but not limited to, a $ _______ promissory note or line of
credit);
X Guaranty the present and future obligations of any third party to the
Lender (including, but not limited to, the obligations of
);
FURTHER RESOLVED, that with respect to the foregoing guaranty, the Board of
Directors of the Company hereby determine that such guaranty may reasonably be
expected to benefit, directly or indirectly, the Company.
Assign for security purposes, pledge, hypothecate, mortgage, or grant
to the Lender a lien, security interest, or other encumbrance upon any of the
Company's personal or real property (including, but not limited to, the
assignments for security purposes, pledges, hypothecations, mortgages, deeds of
trust, liens, security interests and encumbrances contained in the loan
documents pertaining to the promissory note, line of credit, or guaranty
described above);
X Endorse to the Lender any checks, drafts, notes, or other instruments
payable to the Company;
X Appoint the Lender as the Company's attorney-in-fact for any purpose
(including, but not limited to, endorsing any checks, drafts, notes or other
instruments payable to the Company);
Assign, convey, sell, lease, or otherwise transfer to the Lender or any
third party any of the Company's personal or real property; and
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X Execute any document (including, but not limited to, facsimile signature
authorization agreements, wire transfer agreements, automated clearinghouse
agreements, payroll deposit agreements, line of credit agreements, promissory
notes, security agreements, assignments for security purposes, mortgages deeds
of trust, assignments of rents, guaranties, powers of attorney, and waivers) and
take or refrain from taking any action on behalf of the Company.
FURTHER RESOLVED, that any of the foregoing or related activities taken by any
Authorized Party prior to the adoption of the preceding resolutions are hereby
ratified and declared to be biding obligations of the Company in a full and
complete manner;
FURTHER RESOLVED, that the authority and power of any Authorized Party as
provided in the preceding resolutions will continue in full force and effect
until the Board of Directors of the Company adopt a resolution amending,
modifying or revoking one or more of the preceding resolutions and a certified
copy of the properly executed resolution is received by the Lender via certified
mail; and
FURTHER RESOLVED, that the Clerk/Secretary or any Assistant Clerk/Secretary of
the Company is authorized to certify the adoption of the foregoing resolutions
to the Lender, the continuing effect of theses resolutions, and the incumbency
of the various parties authorized to exercise the rights in theses resolutions
from time to time.
The undersigned Clerk/Secretary/Assistant Cler/Secretary certifies that the
following persons are duly elected officers or otherwise authorized to act on
behalf of the Company in the capacities set forth below and that the following
original signatures are genuine in all respects:
NAME TITLE SIGNATURE
-------- -------- -----------------
/s/ Xxxxxxx X. Xxxxxxx X.X., Secretary/Treasurer /s/Xxxxxxx X. Xxxxxxx
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/s/ Xxxxxxx X. Xxxxxxx, Xx. Asst. Secretary /s/Xxxxxxx X. Xxxxxxx, Xx
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