Exhibit 99.19
AGREEMENT OF GUARANTY
THIS AGREEMENT OF GUARANTY (this "Guaranty") is made this 29th day
of September, 1999 by UNITED XXXXXXX CORPORATION, a Delaware
corporation, with a business and post office address for the
purposes hereof at 000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxx 00000 (the "Guarantor"), for the benefit of BERKSHIRE BANK,
a bank organized and existing under the laws of the Commonwealth
of Massachusetts with its principal place of business at 00 Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Lender").
W I T N E S S E T H:
WHEREAS, in a transaction of even date herewith and pursuant to a
commitment letter dated July 8, 1999 (the "Commitment"), the
Lender is making two (2) loans (the "Loans") to PITTSFIELD MOLD &
TOOL, INC., a Massachusetts corporation, with a mailing address at
00 Xxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Borrower"), in the principal amounts of TWO MILLION FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($2,500,000.00) and ONE MILLION NINE
HUNDRED THOUSAND AND NO/100 DOLLARS ($1,900,000.00), respectively;
and
WHEREAS, the Loans are evidenced by two (2) promissory notes
between the Borrower and the Lender; a loan and security agreement
between the Borrower and the Lender; two(2) mortgage and a
security agreements between the Borrower and the Lender; an
assignment of rents and leases from the Borrower to the Lender;
and other documentation evidencing, securing and/or relating to
the Loans (collectively, the "Loan Documents"), and one or more of
the Loan Documents encumber the Borrower's right, title and
interest in and to certain real and/or personal property more
particularly described therein; and
WHEREAS, pursuant to the Commitment, the Loan Documents are to be
accompanied by a separate agreement whereby the Guarantor agrees
to unconditionally guarantee the payment and performance of the
obligations represented by the Loan Documents; and
WHEREAS, the Guarantor desires to enter into this Guaranty in
order to set forth Guarantor's understanding and agreement with
respect to Guarantor's obligations vis-a-vis the Loan Documents.
NOW, THEREFORE, in consideration of the foregoing recitals and in
order to induce the Lender to make the Loans to the Borrower, the
Guarantor hereby covenants and agrees as follows:
1. Until: (a) such time as Lender has been paid in full the
principal indebtedness, interest and other charges due to Lender
under the Loan Documents on account of the Loans; and (b) such
time as the Guarantor has satisfied all of the Obligations, as
hereinafter defined, the Guarantor hereby irrevocably,
unconditionally and absolutely guarantees to Lender, its
successors and assigns: (i) to pay to Lender, upon demand, a sum
sufficient to discharge in full the obligation(s) represented by
the Loan Documents and all other obligations of the Borrower to
the Lender when due, whether direct or indirect, absolute or
contingent, now existing or hereafter arising, which are incurred
prior to the receipt by the Lender of written notice of
revocation, death or incapacity of the Guarantor (the
"Cancellation Notice"), which Cancellation Notice shall not affect
the rights acquired by the Lender prior to its receipt of the
Cancellation Notice; and (ii) to pay to Lender upon demand, all
reasonable fees and expenses, incurred as a result of enforcing
any of the rights of Lender against the Guarantor under this
Guaranty whether or not any legal proceedings are commenced. All
of the obligations to which this Guaranty applies are sometimes
herein referred to as the "Obligations." If the Lender grants
loans or extensions or takes other action, after the death or
incapacity of the Guarantor, or the revocation of this Guaranty by
the Guarantor, but prior to the receipt by Lender of a
Cancellation Notice, the Lender's rights shall be the same as they
would have been had the said death, incapacity or revocation not
occurred, and the Guarantor agrees to indemnify the Lender and
save it harmless from or against all losses, costs, liability, and
expenses which the Lender may incur or suffer by reason of any
action so taken by it.
2. Notwithstanding the exercise by Lender of any of its rights or
remedies under the other Loan Documents (including, without
limitation, foreclosure and/or taking possession of the property
mortgaged, assigned or pledged as security for the Loans), the
liability of the Guarantor under this Guaranty shall continue in
full force and effect until the payment, performance and
satisfaction of all of the Obligations.
3. This Guaranty is a guaranty of payment and performance and not
of collection; liability under this Guaranty shall be direct and
primary; and in the enforcement of its rights, Lender shall be
entitled to look to the Guarantor for the payment and performance
of the Obligations without first commencing any action or
proceeding against the Borrower. Lender's election to pursue
enforcement of its rights against the Borrower or the security
given by the Borrower for the Loans under the Loan Documents shall
not be construed as a waiver of Lender's rights under this
Guaranty or impair Lender's right to enforce this Guaranty, it
being acknowledged that any such action by Lender shall never
operate as a release of the liability of the Guarantor under this
Guaranty.
4. The validity of this Guaranty and the Obligations of the
Guarantor hereunder shall not be terminated, affected or impaired
by reason of (i) the granting by Lender of any indulgence to the
Borrower; (ii) any extension, modification, amendment or other
alteration of any of the Loan Documents, this Guaranty, or any of
the Obligations; or (iii) the relief, modification, impairment,
change or limitation of the liability of the Borrower from any of
the Borrower's obligations under the Loan Documents by operation
of law or otherwise (including, without limitation, in connection
with proceedings under any bankruptcy laws now or hereafter
enacted), the Guarantor hereby waiving all suretyship defenses and
defenses in the nature thereof.
5. Until such time as Lender has been paid in full the principal
indebtedness, interest and other charges due to Lender under the
Loan Documents on account of the Loans, the Guarantor shall have
no right of subrogation to Lender against the Borrower and the
Guarantor hereby waives any right to enforce any remedy which
Lender may have against the Borrower and any right to participate
in the Loans or any security for the Loans and further waives any
right or claim of right to cause a marshalling of the Borrower's
assets.
6. The Guarantor waives (i) notice of acceptance of this Guaranty
and of any action by Lender in reliance thereon, (ii) presentment,
demand of payment, notice of dishonor or nonpayment, protest and
notice of protest with respect to any of the Obligations, and the
giving of any notice of default or other notice to, or making any
demand on anyone (including, without limitation, the Borrower and
the Guarantor) liable in any manner for the payment of the
Obligations, and (iii) notice of any election by Lender to sell
any of the property mortgaged, assigned or pledged as security for
any of the Obligations at a public or private sale, but nothing
herein contained shall be deemed to be a waiver of any notice
required to be given to the Borrower pursuant to the Loan
Documents.
7. The liability of the Guarantor under this Guaranty shall be
irrevocable, unconditional, and absolute, continuing in full force
and effect according to its terms until all of the Obligations
hereby guaranteed to Lender under the Loan Documents have been
fully satisfied. The dissolution, liquidation or death (if
applicable) of the Guarantor, shall not operate to revoke or
impair this Guaranty, except as otherwise set forth herein. The
Guarantor shall from time to time deliver satisfactory
acknowledgments of the Guarantor's continued liability upon
request by the Lender.
8. The Guarantor expressly agrees not, at any time, to insist upon
or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any appraisement, valuation, stay, extension or
redemption laws, now or at any time hereafter in force, which may
delay, prevent, impair or otherwise affect payment and performance
by the Guarantor of the Obligations and expressly waives all
benefits or advantages of such laws and further covenant not to
hinder, delay or impede the execution of any power granted to
Lender hereunder, but will suffer and permit the execution of
every such power as though no such laws were in force.
9. Guarantor grants to the Lender a continuing lien for the amount
of the Obligations upon any and all monies, securities and other
property of the Guarantor and the proceeds thereof, now or
hereafter held or received by or in transit to the Lender from or
for the Guarantor whether for safekeeping, custody, pledge,
transmission, collection or otherwise, and also upon any and all
deposits (general or special) and credits of the Guarantor with,
and any and all claims of the Guarantor against the Lender at any
time existing. Upon the occurrence of an Event of Default as
defined in the Note or any other Loan Documents, the Lender is
authorized at any time and from time to time, without notice to
the Guarantor, regardless of the adequacy of any other collateral,
and without requiring the Lender to proceed against any other
security interest, to set off, appropriate and apply any and all
items hereinabove referred to against the Obligations. Lender
shall be deemed to have exercised such right of set off
immediately at the time Lender elects to make such set off, even
though any charge therefor is made or entered on Lender's records
subsequent thereto.
10. If any provision hereof is found by a court of competent
jurisdiction to be prohibited or unenforceable, it shall be
ineffective only to the extent of such prohibition or
unenforceability and such prohibition or unenforceability shall
not invalidate the balance of such provision to the extent it is
not prohibited or unenforceable, nor invalidate the other
provisions hereof, all of which shall be construed liberally in
favor of the Lender in order to effect the provisions hereof.
11. Whenever notice may be given to the Guarantor under this
Guaranty, such notice shall be: (i) personally delivered or (ii)
given by registered or certified mail, postage prepaid, return
receipt requested, or (iii) forwarded by overnight courier
service, at the address set forth herein, or such other address as
the Guarantor may designate in writing to the Lender. All notices
given hereunder shall be in writing and shall be deemed given, in
the case of notice by personal delivery, upon actual delivery, and
in the case of mail or courier service, upon deposit with the U.S.
Postal Service or delivery to the courier service.
12. The Obligations of the Guarantor shall be binding upon and
enforceable against the heirs, legal representatives, successors
and assigns of the Guarantor, and shall inure to the benefit of
and may be enforced by the Lender and/or its legal
representatives, successors and assigns.
13. This Guaranty and the rights and obligations of the Guarantor
and the Lender shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts and shall have
the effect of a sealed instrument. THE LENDER AND THE GUARANTOR
HEREBY WAIVE TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH
RESPECT TO, IN CONJUNCTION WITH, OR ARISING OUT OF THIS GUARANTY,
ANY OTHER LOAN DOCUMENTS OR THE LOANS, OR THE VALIDITY,
PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR
ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING BETWEEN THE GUARANTOR
AND LENDER.
IN WITNESS WHEREOF, Guarantor has caused this instrument to be
executed by Xxxxxxx X. Xxxx, III, its duly authorized Chairman and
CEO, and its corporate seal to be hereunto affixed as of the date
first above written.
UNITED XXXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, III,
Chairman and CEO
COMMONWEALTH OF MASSACHUSETTS
BERKSHIRE, ss. September 29, 1999
Then personally appeared the above-named Xxxxxxx X. Xxxx, III,
Chairman and CEO, who acknowledged the foregoing instrument to be
the free act and deed of United Xxxxxxx Corporation, before me,
/s/ Xxxxxx X. Denmark
Xxxxxx X. Denmark, Notary Public
My Commission Expires: 7/27/01
