Exhibit 10.32
FORM OF GUARANTY AGREEMENT
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THIS GUARANTY AGREEMENT (this "Guaranty"), dated as of
December __, 1998, is made by XXXXXXX ENTERPRISES, INC., a __________
corporation and XXXXXX-AMERICAN COMPANY, a ____________ corporation (each
individually a "Guarantor" and individually and collectively, "Guarantors"), in
favor of FIRST UNION NATIONAL BANK, a national banking association, for itself
and as agent ("Agent") and the Lenders under the Credit Agreement described
below (the "Lenders").
BACKGROUND
1. Agent and the Lenders have entered into a Credit
Agreement dated of even date herewith (as may be amended from time to time, the
"Credit Agreement") with Xxxxxxx American Corporation ("Borrower"), under which
the Lenders have agreed to extend certain credit facilities to the Borrower in
consideration of, inter alia, the covenants and obligations made and assumed by
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the Guarantors as herein set forth.
2. It is a condition precedent to the extension or continued
extension of certain credit facilities by the Lenders under the Credit Agreement
that each Guarantor shall have executed and delivered to the Lenders this
Guaranty.
3. Each Guarantor is a subsidiary of the Borrower, and each
Guarantor's directors have determined that it is in the best interest of such
Guarantor to execute this Guaranty and that such Guarantor will benefit directly
and indirectly from the execution of this Guaranty.
NOW, THEREFORE, in order to induce the Lenders to extend
certain credit facilities under the Credit Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, each Guarantor does hereby
covenant and agree with the Lenders as follows:
1. Definitions and Construction. Reference is made to the
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Credit Agreement for a statement of the terms thereof. All terms used in this
Guaranty which are defined in the Credit Agreement and not defined herein shall
have the respective meanings ascribed to such terms in the Credit Agreement.
2. Guaranty. Each Guarantor, jointly and severally,
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absolutely and unconditionally, guarantees and becomes surety for the full,
prompt and punctual payment to Lenders, as and when due, whether at maturity, by
acceleration or otherwise, of any and all indebtedness, and performance of any
and all liabilities and obligations of Borrower to Lenders or any of them,
including, without limitation, reimbursement obligations under Letters of
Credit, created at any time under, or pursuant to, the terms of the Credit
Agreement and the other Loan
Documents whether for principal, interest, premiums, fees, expenses or
otherwise, any obligations under interest rate protection agreements, swaps,
hedging contracts or similar arrangements with any Lender, and any obligations
under or pursuant to any other documents and agreements executed in connection
therewith, including any future advances, whether obligatory or voluntary, or
refinancings, renewals or extensions of or substitutions for, any existing or
future debt (all such indebtedness, liabilities and obligations collectively,
the "Obligations"), together with any and all reasonable expenses, including
without limitation attorneys' fees, disbursements and the costs and expenses of
in-house counsel and legal support staff, which may be incurred by the Lenders
in collecting any or all of the Obligations or enforcing any and all rights
against either Guarantor under this Guaranty (the "Expenses"). Without limiting
either Guarantor's obligations hereunder and notwithstanding any purported
termination of this Guaranty, if any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation, dissolution, assignment for
the benefit of creditors, or similar event with respect to the Borrower or any
endorser of all or any of the Obligations shall occur, and such occurrence shall
result in the return of (or in such event any Lender shall be requested to
return) any payment or performance of any of the Obligations or Expenses, then
(a) without further notice, demand or other action, the obligations of each
Guarantor hereunder shall be reinstated with respect to (i) such payment or
performance returned (or requested to be returned) and (ii) with respect to all
further obligations arising as a result of such return or request, and (b) each
Guarantor shall thereupon be liable therefor, without any obligation on the part
of the Lenders to contest or resist any such return.
3. Nature and Term of Guaranty.
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(a) The obligations and liability of each Guarantor
under this Guaranty shall be joint and several, absolute, primary and direct,
irrevocable and unconditional, regardless of any non-perfection of any
collateral security for the Obligations; any lack of validity or enforceability
of the Credit Agreement, any other Loan Document or any of the Obligations or
Expenses; the voluntary or involuntary liquidation, dissolution, sale or other
disposition of all, or substantially all of the assets, marshalling of assets
and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition with creditors or
readjustment of, or other similar proceedings affecting Borrower, any Guarantor
or any other guarantor or endorser of, any or all of the Obligations and
Expenses or any of the assets of any of them, or any contest of the validity of
this Guaranty in any such proceeding; or any law, regulation or decree now or
hereafter in effect in any jurisdiction which might in any manner affect any of
such terms or provisions or any of the rights of the Lenders with respect
thereto or which might cause or permit the Borrower or any guarantor or endorser
of the Obligations and Expenses to invoke any defense to, or any alteration in
the time, amount or manner of payment of any or all of the Obligations and
Expenses or performance of this Guaranty.
(b) This Guaranty is a continuing guaranty and
shall remain in full force and effect until the Obligations, the Expenses and
any and all other amounts payable hereunder shall have been paid in full in cash
and no further loans or advances are available and no Letters of Credit are
outstanding under the Credit Agreement and the period during which any payment
by the Borrower or either Guarantor is or may be subject to rescission,
avoidance or refund under the United States Bankruptcy Code (or any similar
state or federal statute) shall have expired.
4. Limitation on Amount Guarantied. Anything contained in
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this Guaranty to the contrary notwithstanding, the obligations of each Guarantor
hereunder shall be limited to the lesser of (i) the Obligations and Expenses, or
(ii) a maximum aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law (collectively, the "Fraudulent
Transfer Laws"), if and to the extent each Guarantor (or a trustee on its
behalf) has properly invoked the protections of the Fraudulent Transfer Laws, in
each case after giving effect to all other liabilities of such Guarantor,
contingent or otherwise, that are relevant under the Fraudulent Transfer Laws.
5. Payment in Accordance with Notes and Credit Agreement.
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(a) Each Guarantor hereby guaranties that the
Obligations and Expenses shall be paid and performed strictly in accordance with
the terms of the Loan Documents.
(b) If any Obligation or Expense is not paid or
performed by the Borrower punctually, subject to any applicable grace period,
including without limitation any Obligation due by acceleration of the maturity
thereof, the Guarantors will, upon Agent's demand, immediately pay or perform
such Obligation or Expense or cause the same to be paid or performed. Guarantors
will pay to Lenders, upon demand, all costs and expenses, including the
Expenses, which may be incurred by the Lenders in the collection or enforcement
of either Guarantor's obligations under this Guaranty.
6. Defaults; Rights and Remedies of Banks.
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(a) An event of default hereunder shall include each of
the following:
(i) an Event of Default as defined under any of
the Loan Documents;
(ii) either Guarantor's failure to perform any of
its obligations or duties under this Guaranty; and
(iii) either Guarantor's notice to any Lender that
such Guarantor does not intend to be liable for any future Obligations or
Expenses or contests the validity or enforceability of this Guaranty.
(b) Lenders, or Agent on behalf of Lenders, in their
sole discretion, may proceed to exercise any right or remedy which it may have
under this Guaranty against any Guarantor without first pursuing or exhausting
any rights or remedies which it may have against the Borrower or against any
other person or entity or any collateral security, and may proceed to exercise
any right or remedy which it may have under this Guaranty without regard to any
actions or omissions of any other person or entity, in any manner or order,
without any obligation to marshal in favor of any Guarantor or other persons or
entities and without releasing any of Guarantors' obligations hereunder with
respect to any unpaid Obligations and Expenses. Upon the occurrence
of an Event of Default, each Guarantor shall immediately pay, comply with and
perform such of the Obligations and Expenses as Lenders, or Agent on behalf of
Lenders, shall direct, irrespective of whether the Obligations and Expenses to
be paid, complied with and performed by such Guarantor are those which gave rise
to the Event of Default. No remedy herein conferred upon or reserved to the
Lenders or Agent is intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this Guaranty or now or hereafter
existing at law or in equity.
(c) If Borrower or any other person or entity defaults
under the Loan Documents and any Lender is prevented from accelerating payment
thereunder, either by operation of any bankruptcy laws, similar laws or any
court order, such Lender shall be entitled to receive from the Guarantors, upon
demand by such Lender, the sums which would have otherwise been due and payable
had such acceleration occurred.
7. Actions by Lenders Not Affecting Guaranty. Lenders may, at
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any time or from time to time, in such manner and upon such terms as they may
deem proper, extend or change the time of payment or the manner or place of
payment of, or otherwise modify or waive any of the terms of, or release,
exchange, settle or compromise any or all of the Obligations and Expenses or any
collateral security therefor, or subordinate payment of the same, or any part
thereof, to the payment of any other indebtedness, liabilities or obligations of
the Borrower which may at any time be due or owing to the Lenders or anyone, or
elect not to enforce any of the Lenders' rights with respect to any or all of
the Obligations and Expenses or any collateral security therefor, all without
notice to, or further assent of any Guarantor and without releasing or affecting
any Guarantor's obligations hereunder.
8. Payments Under Guaranty. All payments by Guarantors
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hereunder shall be made in immediately available funds and in lawful money of
the United States of America to the Agent at the office of the Agent referred to
in Section 9.9 of the Credit Agreement or at such other location as the Agent
shall specify by notice to the Guarantors. All payments by any Guarantor under
this Guaranty shall be made by such Guarantor solely from such Guarantor's own
funds and not from any funds of the Borrower.
9. Modifications and Waivers. No failure or delay on the part
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of any Lender or Agent in exercising any power or right under this Guaranty
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power preclude any other or further exercise thereof or the
exercise of any other right or power under this Guaranty. No modification or
waiver of any provision of this Guaranty nor consent to any departure therefrom
shall, in any event, be effective unless the same is in writing signed by the
Lenders and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to, or demand on either
Guarantor, in any case, shall entitle such Guarantor to any other or further
notice or demand in similar or other circumstances.
10. Guarantors' Waiver. Each Guarantor hereby waives the
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following:
(a) promptness, diligence, presentment, demand, notice of
acceptance and
any other notice with respect to any of the Obligations, the Expenses and this
Guaranty;
(b) any defense or circumstance which might otherwise
constitute a legal or equitable discharge of a Guarantor, including, without
limitation, any obligation of any Lender to proceed against Borrower prior to
exercising any rights hereunder;
(c) any and all right to terminate such Guarantor's
obligations and duties hereunder by delivery or written notice to any Lender or
otherwise;
(d) all benefits under any present or future laws exempting
any property, real or personal, or any part of any proceeds thereof, from
attachment, levy or sale under execution, or providing for any stay of execution
to be issued on any judgment recovered under any of the Loan Documents or in any
replevin or foreclosure proceedings, or otherwise providing for any valuation,
appraisal or exemption;
(e) all rights to inquisition on any real estate, which real
estate may be levied upon pursuant to a judgment obtained under any of the Loan
Documents and sold upon any writ of execution issued thereon in whole or in
part, in any order desired by any Lender;
(f) any requirement for bonds, security or sureties required
by any statute, court rule or otherwise; and
(g) any and all procedural errors, defects and imperfections
in any action by Agent or Lenders in replevin, foreclosure or other court
process or in connection with any other action related to any of the Loan
Documents or the transactions contemplated therein.
11. Subordination; Subrogation. Each Guarantor hereby
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expressly agrees that it shall not exercise, against any Borrower, other
guarantor, maker, endorser or person (a) any right which such Guarantor may now
have or hereafter acquire by way of subrogation under this Guaranty, by law or
otherwise or by way of reimbursement, indemnity, exoneration, or contribution;
(b) any right to assert defenses as the primary obligor of the Obligations; (c)
any other claim which it now has or may hereafter acquire against any Borrower
or any other person or against or with respect to Borrower's property
(including, without limitation, any property which has been pledged to secure
the Obligations); or (d) any right to enforce any remedy which any Lender may
now have or hereafter acquire against Borrower or any other guarantor, maker or
endorser; in any case, whether any of the foregoing claims, remedies and rights
may arise in equity, under contract, by payment, statute, common law or
otherwise until all Obligations and Expenses have been indefeasibly paid in full
in cash. If in violation of the foregoing any amount shall be paid to any
Guarantor on account of any such rights at any time, such amount shall be held
in trust for the benefit of the Lenders and shall forthwith be paid to the
Lenders to be credited and applied against the Obligations and Expenses, whether
matured or unmatured, in accordance with the terms of the Notes and the Credit
Agreement.
12. No Setoff by Guarantors. No setoff, counterclaim,
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deduction, reduction, or diminution of any obligation, or any defense of any
kind or nature which either Guarantor has or
may have against Borrower or any Lender shall be available hereunder to either
Guarantor.
13. Representations and Warranties. Guarantors hereby
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represent and warrant that the representations and warranties set forth in
Article 3 of the Credit Agreement are true and correct in all respects.
14. Covenants. Guarantors covenant and agree that, so long as
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the Guaranty shall remain in effect, they shall comply in all respects with the
covenants and agreements set forth in the Credit Agreement, including without
limitation, the covenants and agreements set forth in Articles 5 and 6 thereof.
15. Addresses for Notices. All requests, consents, notices and
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other communications required or permitted hereunder or in connection herewith
shall be deemed satisfactorily given if in writing and delivered personally or
by registered or certified mail, postage pre-paid, by reliable overnight
courier, or by telecopier to the parties at their respective addresses set forth
below or at such other address as may be given by any party to the other in
writing in accordance with this Section 16:
If to Guarantors:
c/x Xxxxxxx American Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention:
Telecopier:
If to Borrower:
Xxxxxxx American Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention:
Telecopier:
If to Agent:
First Union National Bank
0000 Xxxxxxxx Xxxxxx
XX 4843
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telecopier: (000) 000-0000
16. Continuing Guaranty; Transfer of Notes. This Guaranty is a
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continuing
guaranty and shall (i) remain in full force and effect until the Obligations,
the Expenses and all other amounts payable under this Guaranty shall have been
paid in full and the period during which any payment Borrower or Guarantors is
or may be subject to avoidance or refund under the United States Bankruptcy Code
(or any similar statute) shall have expired, (ii) be binding upon each Guarantor
and the personal representatives, heirs, successors and assigns of each
Guarantor, and (iii) inure to the benefit of, and be enforceable by the Lenders
and Agent and their respective successors, transferees and assigns. Without
limiting the generality of the foregoing clause (iii), the Lenders may endorse,
assign or otherwise transfer the Obligations to any other person or entity in
accordance with the provisions of the Credit Agreement, and such other person or
entity shall thereupon become vested with all the rights in respect thereof
granted to the Lenders herein or otherwise.
17. Entire Agreement. This Guaranty constitutes the entire
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agreement, and supersedes all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof.
18. Severability.
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(a) The invalidity or unenforceability of any one or more
portions of this Guaranty shall not affect the validity or enforceability of the
remaining portions of this Guaranty.
(b) The Guarantors and the Lenders agree that in an action
or proceeding involving any state or federal bankruptcy, insolvency or other law
affecting the rights of creditors generally:
(1) If any clause or provision shall be held invalid
or unenforceable in whole or in part in any jurisdiction, then such invalidity
or unenforceability shall affect only such clause or provision, or part thereof,
in such jurisdiction and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision in this Guaranty in
any jurisdiction, or any other clause or provision in this Guaranty in any
jurisdiction.
(2) If the guaranty hereunder by either Guarantor
would be held or determined to be void, invalid or unenforceable on account of
the amount of its aggregate liability under this Guaranty, then, notwithstanding
any other provision of this Guaranty to the contrary, the aggregate amount of
such liability shall, without any further action by any of the Guarantors, the
Lenders or any other person, be automatically limited and reduced to the highest
amount which is valid and enforceable as determined in action or proceeding.
(3) If any other guaranty by any one or more other
Guarantor is held or determined to be void, invalid or unenforceable, in whole
or in part, such holding or determination shall not impair or affect:
(A) the validity and enforceability of the
guaranty hereunder by either Guarantor, which shall continue in full force and
effect in accordance with its terms; or
(B) the validity and enforceability of any clause
or provision not so held to be void, invalid or unenforceable.
19. Counterparts. This Guaranty may be executed by Guarantors
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in several separate counterparts, each of which shall be an original and all of
which taken together shall constitute one and the same instrument.
20. Governing Law. This Guaranty shall be deemed to be a
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contract under the laws of the Commonwealth of Pennsylvania and for all purposes
shall be governed by and construed in accordance with such laws.
21. Each Guarantor irrevocably appoints each officer of
Borrower and Guarantors as its attorney upon whom may be served any notice,
process or pleading in any action or proceeding against it arising out of or in
connection with this Guaranty, the Loan Documents or any of the Collateral; each
Guarantor hereby consents that any action or proceeding against it be commenced
and maintained in any court within the Commonwealth of Pennsylvania or in the
United States District Court for the Eastern District of Pennsylvania by service
of process on any officer of Borrower or Guarantors; and each Guarantor agrees
that the courts of the Commonwealth of Pennsylvania and the United States
District Court for the Eastern District of Pennsylvania shall have jurisdiction
with respect to the subject matter hereof and the person of each Guarantor and
the Collateral. Notwithstanding the foregoing, Agent, in its absolute
discretion, may also initiate proceedings in the courts of any other
jurisdiction in which either Guarantor may be found or in which any of its
properties or Collateral may be located.
22. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY,
AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
GUARANTY OR OTHER LOAN DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF AGENT OR LENDERS. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR LENDERS' ENTERING INTO THIS AGREEMENT.
23. GUARANTORS ACKNOWLEDGE THAT THEY HAVE HAD THE ASSISTANCE
OF COUNSEL IN THE REVIEW AND EXECUTION OF THIS GUARANTY AND, SPECIFICALLY,
PARAGRAPH 22 HEREOF, AND FURTHER ACKNOWLEDGES THAT THE MEANING AND EFFECT OF THE
FOREGOING WAIVER OF JURY TRIAL HAVE BEEN FULLY EXPLAINED TO GUARANTORS BY SUCH
COUNSEL.
IN WITNESS WHEREOF, the undersigned, by their duly authorized
officers, as applicable, have executed this Guaranty the day and year first
above written.
Attest: XXXXXXX ENTERPRISES, INC.
By: By:
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Name: Name:
Title: Title:
Attest: XXXXXX-AMERICAN CORPORATION
By: By:
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Name: Name:
Title: Title:
Attest: [ ]
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By: By:
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Name: Name:
Title: Title:
