EXHIBIT 10.8
GUARANTY
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THIS GUARANTY is made as of this 7th day of August, 1997, by TERRACE
HOLDINGS, INC. , a Delaware Corporation (the "Guarantor") in favor of FOOTHILL
CAPITAL CORPORATION (the "Lender") pursuant to, and in order to induce Lender to
extend credit to XXXXXXX ICE CREAM, INC. and A-ONE-A PRODUCE & PROVISIONS, INC.
(collectively the "Borrower"), pursuant to that certain Loan and Security
Agreement of even date herewith between the Lender and the Borrower, as the same
has been or may hereafter be amended, modified, extended, renewed, supplemented
or replaced from time to time, (the "Loan Agreement"), which shall be fair and
sufficient consideration for the execution of this Guaranty.
Section 1. Definitions. All capitalized words and terms used herein shall
have the meanings assigned to them in the Loan Agreement unless otherwise
defined herein.
Section 2. Guaranty.
(a) To induce the Lender to extend credit to the Borrower pursuant to
the Loan Agreement, and subject to the limitation set forth in Section 3, the
Guarantor hereby irrevocably and unconditionally guarantees to the Lender, its
successors and assigns (i) the full and prompt payment when due, whether by
acceleration or otherwise, with such interest as may accrue thereon either
before or after maturity thereof, of all of the Obligations, including, without
limitation, the Revolving Loans, together with all renewals, modifications,
consolidations, and extensions thereof, (ii) the full and prompt payment and
performance of all terms, conditions and covenants contained in the Loan
Agreement and (iii) the full and prompt performance of any and all other
obligations of the Borrower under any other documents or instruments referred to
in the Loan Agreement or now or hereafter evidencing, securing, or otherwise
relating to the Obligations or the Loan Agreement (hereinafter collectively
called the "Loan Documents"). The Guarantor hereby agrees that if any of the
Obligations or other monetary obligations, duties and covenants are not paid by
the Borrower in accordance with their respective terms or if any and all sums
which are now or may hereafter become due from the Borrower to the Lender under
or pursuant to any of the Obligations or the Loan Documents are not paid by the
Borrower in accordance with their terms, the Guarantor will make such payments.
The Guarantor hereby further agrees to pay the Lender all reasonable expenses
(including, without limitation, reasonable attorneys' fees and court costs) paid
or incurred by the Lender in endeavoring to enforce this Guaranty. This
Guaranty shall be a continuing Guaranty of all the Obligations and all of the
other obligations, duties and covenants of the Borrower created pursuant to any
and all of the Loan Documents, including, without limitation, any and all
advances, debts, obligations, covenants and liabilities heretofore, now or
hereafter made, incurred or created under and pursuant to any of the Loan
Documents whether voluntary or involuntary, absolute or contingent, liquidated
or unliquidated, determined or undetermined, and whether recovery upon such
obligations, duties and covenants may be or hereafter become unenforceable.
(b) As an additional inducement to the Lender to extend credit to the
Borrower, the Guarantor, if a stockholder of the Borrower, hereby covenants and
agrees not to transfer, assign, sell, convey or otherwise dispose of, grant any
option, warrant or other right with respect to, pledge, hypothecate or otherwise
encumber any of the capital stock of the Borrower owned by him without the prior
written consent of the Lender, which consent will not be unreasonably withheld,
except that the Borrower shall have the right to pledge such stock to Omnibus
Services, Inc.
Section 3. Limitation on Guaranty. The liability of the Guarantor
hereunder shall be unlimited.
Section 4. Guaranty of Collection. This is a guaranty of collection not of
payment. The Guarantor shall have no liability hereunder to the Lender until
the Lender has exhausted all recourse against the Collateral securing the
Obligations
Section 5. Guaranty Unconditional. The obligations of the Guarantor
hereunder are irrevocable, absolute and unconditional, irrespective of the
value, genuineness, validity, regularity or enforceability of any of the
Obligations or any term or provision of any of the Loan Documents or any other
document relating to the Obligations or the Loan Documents or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor.
Section 6. Subordination and Waiver of Subrogation.
(a) The Guarantor hereby subordinates all indebtedness of the Borrower to
the Guarantor, whether now existing or hereafter arising (the "Subordinated
Indebtedness"), to the full and prompt payment of the Obligations. Any amounts
received by the Guarantor as a payment on the Subordinated Indebtedness, other
than payments on Subordinated Indebtedness permitted under a subordination
agreement approved by the Lender, shall be retained and held in trust by the
Guarantor for the benefit of the Lender.
(b) The Guarantor agrees that no payment made hereunder by him shall
entitle him, at any time, to be subrogated to the rights of the Lender or any
other Guarantor with respect to any of the Obligations or other obligations,
duties and covenants created under and pursuant to any of the loan documents and
the Guarantor forever waives any rights to enforce any remedy of the Lender,
until payment and performance in full of the Obligations and all other
obligations, duties and covenants created under and pursuant to the Loan
Documents, which the Lender may now have, or may hereafter have, against the
Borrower, any other Guarantor or any other person and forever waives any benefit
of, or any right to participation in, any security interest or collateral
whatsoever now or hereafter held by the Lender until payment and performance in
full of the Obligations and all other obligations, duties and covenants created
under the Loan Documents which the Lender may now or hereafter have against the
Borrower, any other Guarantor or any other person.
Section 7. Representations and Warranties. The Guarantor represents and
warrants to the Lender that:
(a) The Guarantor has full power and authority to make and perform
this Guaranty and this Guaranty has been duly executed and delivered by the
Guarantor and constitutes the valid and legally binding obligation of the
Guarantor enforceable against him in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
enforcement is sought by proceedings in equity or at law).
(b) The making and performance by the Guarantor of this Guaranty does
not and will not (i) contravene any existing provision of law or regulation or
any order, decree, writ or injunction of any court or administrative body or
(ii) result in a breach of or constitute a default or require any consent under
any contractual restriction binding on the Guarantor or on any of his
properties.
(c) The Guarantor will receive substantial benefit from the extensions
of credit to the Borrower pursuant to the Loan Documents.
(d) No consents, approvals, licenses or authorizations of, or filing
or registrations with, any governmental authority are required under applicable
federal or state law for the making and performance by the Guarantor of this
Guaranty.
(e) There is no action, suit , investigation or proceeding in any
court or before any arbitrator or regulatory commission, board, administrative
agency or other governmental authority pending or, to the knowledge of the
Guarantor, threatened which, if determined adversely to the Guarantor, would
materially and adversely affect his assets and properties or his ability to
perform his obligations hereunder. The Guarantor has provided the Lender with
information relating to all litigation in which he is a party, none of which the
Guarantor deems likely to have a material and adverse affect upon his assets and
properties.
(f) Except as previously disclosed to the Lender in writing, the
Guarantor is not in default in the payment of the principal of or interest on
any indebtedness for borrowed money and is not in default under any instrument
under and subject to which any indebtedness has been incurred and, to the
knowledge of the Guarantor, no event has occurred and is continuing under the
provisions of any such agreement which with the lapse of time or the giving of
notice, or both, would constitute an event of default thereunder, which default
would have a material adverse effect on his assets, the validity of the Guaranty
or the ability of the Guarantor to perform his obligations hereunder.
(g) The Guarantor is not insolvent (as defined in Section 101(31) of
the United States Bankruptcy Code), unable to pay debts as they mature or
engaged in business with unreasonably small capital; the Guarantor has filed all
federal, State, local and foreign tax returns which are required to be filed by
the Guarantor, and the Guarantor has paid all federal, State, local and foreign
taxes shown to be due on such tax returns or which have been assessed against
the Guarantor; the Guarantor is not or has not been the subject of any
bankruptcy, reorganization, insolvency, readjustment of debt, trusteeship,
receivership, dissolution or liquidation law, statute or proceeding.
Section 8. Consents. The Guarantor hereby consents and agrees that any or
all of the following actions may be taken or things done without notice to the
Guarantor and without affecting, diminishing or releasing the liability of the
Guarantor under this Guaranty:
(a) The time for the Borrower's performance of or compliance with any
of the Obligations or any
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other obligations, duties or covenants created under or pursuant to any of the
Loan Documents may be accelerated, renewed, modified, released or extended or
such performance or compliance may be waived by the Lender, including, without
limitation, the time of payment of the Obligations.
(b) The rate of interest under the Loan Agreement or other evidence of
indebtedness may be increased or decreased.
(c) Any of the acts referred to in any documents, instruments or
certificates evidencing or securing the Obligations or referred to in any of the
Loan Documents may be performed, in accordance with their terms, by the Borrower
or any other party for and or on behalf of the Borrower.
(d) As described therein or herein, the terms of any of the documents,
instruments or certificates evidencing or securing any of the Obligations or the
terms of the Loan Documents may be modified, extended or renewed for any period
for the purpose of adding any provisions thereto or changing in any manner the
rights of the Lender or of the Borrower thereunder.
(e) The Lender may grant releases, compromises and indulgences with
respect to any of the Obligations or any of the Loan Documents to any persons or
entities now or hereafter liable thereunder or hereunder.
(f) The Lender may release any guarantor or endorser of any of the
Obligations, the Loan Documents or any other covenant, obligation or duty
guaranteed hereby or referred to herein.
(g) The Lender may take or fail to take any action of any type
whatsoever without releasing the Guarantor's obligations hereunder or affecting
this Guaranty in any way or affording the Guarantor any recourse against the
Lender.
(h) Any property constituting security of any kind or nature
whatsoever now or hereafter held by the Lender or by any person, firm, trustee
or corporation on the Lender's behalf, or for its account, may be surrendered or
exchanged or substituted for collateral of like kind or of any kind, or such
property or security may be otherwise dealt with, and the Lender's interest
thereunder may be released or remain in effect, all as the Lender, in its sole
discretion, may deem desirable.
Section 9. Credit Information. The Guarantor assumes the responsibility
for being and keeping himself informed of the financial condition of the
Borrower and of all other circumstances bearing upon the risk of non-payment and
non-performance of the Obligations and of any obligations, duties and covenants
created under and pursuant to any of the Loan Documents; and, the Lender shall
have no duty to advise the Guarantor of information known to the Lender
regarding such condition or any such circumstances.
Section 10. Tolling of Statute of Limitations. The Guarantor agrees that
payment or performance of any of the Obligations or other acts which toll any
statute of limitations applicable to the Obligations or to any of the Loan
Documents shall also toll the statute of limitations applicable to the liability
of the Guarantor under this Guaranty.
Section 1 1. Waiver. The Guarantor unconditionally waives: (a)
diligence, presentment, demand for payment, protest, notice of dishonor and
notice of default;
(b) the benefit of any act or omission by the Lender which directly or
indirectly results in or aids the discharge of the Borrower or the Borrower's
payment and performance of the Obligations or any of the obligations, duties and
covenants created under or pursuant to any of the Loan Documents by operation of
law or otherwise;
(c) notice of acceptance of this Guaranty and the incurring of the
Obligations, or any of the obligations, duties and covenants created under or
pursuant to any of the Loan Documents;
(d) the provisions of Section 49-25 and 49-26 of the Code of Virginia
of 1950, asamended;
(e) any defense that may arise by reason of lack of authority of the
Guarantor or theincapacity or lack of authority, death or disability of any
other person or entity or the failure of the Lender to file or enforce a claim
against the estate (in bankruptcy or other proceeding) of the Borrower, the
Guarantor or any other person or entity;
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(f) any defense based on the failure of the Lender to give notice of
the existence, creation or incurring of any new or additional indebtedness or
obligation or any action or non-action on the part of any other person
whatsoever in connection with any of the obligations hereby guaranteed;
(g) any duty on the part of the Lender to disclose to the Guarantor
any facts the Lender may now or hereafter know with regard to the Borrower;
(h) any and all rights of subrogation, reimbursement, contribution,
indemnification, exoneration and all other rights and claims which the Guarantor
may now or hereafter have against the Borrower, or againstany other person
directly or indirectly, contingently or non-contingently, liable for or
obligated upon any of the Obligations ("Other Obligated Party"), arising on
account of this Guaranty or any sums paid by the Guarantor or collected by the
Lender pursuant to this Guaranty until payment and performance in full of the
Obligations, duties and covenants created under the Loan Documents which the
Lender may now or hereafter have against the Borrower, any other Guarantor or
any other person. In furtherance, and not in limitation, of the preceding
waiver, the Guarantor agrees that any sums paid by the Guarantor or collected by
the Lender pursuant to this Guaranty shall be deemed a contribution to the
capital of the Borrower or Other Obligated Party, as the case may be, and shall
not constitute the Guarantor a creditor of the Borrower or such Other Obligated
Party.
Section 12. Certain Rights, Remedies, Etc.
(a) In the event of any demand or default on this Guaranty or the
Obligations: (1) all Obligations shall become due and payable, together with
interest accrued to the date of payment, without notice, at the option of the
Lender; (2) the Guarantor shall reimburse the Lender for any expenses, costs and
attorneys' fees which the Lender may incur in connection with the collection of
any monies due under this Guaranty or in connection with the enforcement of any
right under this Guaranty.
(b) In pursuing its rights, under and pursuant to any of the Obligations or
any of the obligations, duties and covenants created under and pursuant to the
Loan Documents or under this Guaranty, the Lender need not join the Guarantor in
any suit against the Borrower under the Loan Documents or join the Borrower in
any suit against the Guarantor hereunder. The Guarantor hereby waives any right
to require the Lender to give notice of the terms, time and place of any public
or private sale of any Collateral now or hereafter securing the Obligations or
obligations, duties and covenants created under and pursuant to the Loan
Documents or to comply with any other provision of Section 9-504 of the Uniform
Commercial Code as enacted by the Commonwealth of Virginia.
(c) The books and records of the Lender showing the accounts between the
Lender and the Borrower shall be admissible in evidence in any action or
proceeding thereon as prima facie proof of the items set forth therein.
Section 13. No Set-Off. No act or omission of any kind or at any time on
the part of the Lender in respect to any matter whatsoever shall in any way
affect or impair the rights of the Lender to enforce any right, power or benefit
under this Guaranty and no set-off, claim, reduction or diminution of any
obligation or any defense of any kind or nature which the Guarantor has or may
have against the Lender shall be available against the Lender in any suit or
action brought by the Lender to enforce any right, power of benefit provided by
this Guaranty, provided that nothing herein shall prevent the assertion by the
Guarantor of any such claim by separate suit or counterclaim. Nothing in this
Guaranty shall be construed as a waiver by the Guarantor of any rights or claims
which he may have against the Lender hereunder or otherwise, but any recovery
upon such rights and claims shall be had from the Lender separately, it being
the intent of this Guaranty that the Guarantor shall be unconditionally and
absolutely obligated to perform fully all his obligations, covenants and
agreements hereunder for the benefit of the Lender.
Section 14. Notices. All notices, demands, approvals, consents, requests
and other communications hereunder shall be delivered by hand, sent prepaid by
Federal Express (or a comparable overnight delivery service) or sent by the
United States mail, certified, postage prepaid, return receipt requested, to the
Guarantor at its address specified on the signature page hereof, with a copy to
Xxxx Xxxxxxx, Esquire, Xxxxxxx & Xxxxxxx, P.C., 00 X. XxXxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, and to the Lender at the address specified in the Loan
Agreement. Any notice, request, demand or other communication delivered or sent
in the manner aforesaid shall be deemed given or made (as the case may be) upon
the earliest of (a) the date it is actually received, (b) on the business day
after the day on which it is delivered by hand, (c) on the business day after
the day it is properly delivered to Federal Express (or a comparable overnight
delivery service) or (d) on the third business day after the day on which it is
deposited in the United States mail. Any party may change its address by
notifying the other party of the new address in any manner permitted by this
Section. Rejection or other refusal to accept, or the inability to deliver
because of a changed address of which no notice was given, shall not affect the
date of such notice, election or demand sent as aforesaid.
Section 15. Reinstatement. The liability of the Guarantor hereunder shall
be reinstated and revived and the rights of the Lender shall continue if and to
the extent that for any reason any payment by or on behalf of the Borrower or
the Guarantor is
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rescinded or must be otherwise restored by the Lender, whether as a result of
any proceedings in bankruptcy or reorganization or otherwise, and all decisions
as to whether any such payment must be rescinded or restored shall be made in
good faith by the Lender in its sole discretion; provided, however, that if the
Lender chooses to contest any such matter at the request of the Guarantor, the
Guarantor agrees to indemnify and hold the Lender harmless with respect to all
costs (including, without limitation, aftorneys'fees) of such litigation.
Section 16. No Waiver: Amendments, Etc. No failure on the part of the
Lender to exercise, no delay in exercising and no course of dealing with respect
to, any right hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law. This
Guaranty may not be amended or modified except by written agreement of the
Guarantor and the Lender and no consent or waiver hereunder shall be valid as
against the Lender unless in writing and signed by the Lender.
Section 17. Insolvency. The voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all the assets
and liabilities, the receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, or other proceeding affecting the Borrower
or the disaffirmance of the Obligations or any obligation, duty or covenant
created pursuant to any of the Loan Documents in any such proceeding shall not
release or discharge the Guarantor from this Guaranty.
Section 18. Jurisdiction, Venue and Waiver of Jury Trial.
(a) The forum having the proper jurisdiction and venue to adjudicate any
claim, dispute or default which may arise out of the execution and delivery of
this Guaranty and the performance of the Guarantor's obligations hereunder shall
be the Circuit Court of the City of Richmond, Virginia, and the proper appellate
courts of the Commonwealth of Virginia, or the United States District Court of
the Eastern District of Virginia, Richmond Division, and the proper appellate
courts of the United States, unless the Lender in its sole discretion chooses to
bring suit on its own behalf in some other court of competent jurisdiction. The
Guarantor expressly submits and consents to such jurisdiction and venue and
specifically waives any and all rights it may have to contest the jurisdiction
and/or venue of the above mentioned forums and to demand any other forums. The
Guarantor waives personal service of any and all legal process upon him and
consents and agrees that all such service may be made by Registered Mail
directed to the Guarantor at the address for notices set forth at the end of
this Agreement, and service so made shall be deemed to be completed on the date
the return receipt therefor is signed.
(b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY MATTER ARISING OUT OF THIS
GUARANTY AND THE GUARANTOR'S OBLIGATIONS HEREUNDER.
THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY THE GUARANTOR,
AND THE GUARANTOR HEREBY REPRESENTS THAT NO REPRESENTATIONS OF FACT OR OPINION
HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN
ANY WAY MODIFY OR NULLIFY ITS EFFECT. THE GUARANTOR FURTHER REPRESENTS THAT IT
HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS
WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT
HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
Section 19. Entire Agreement. This Guaranty constitutes the entire
agreement, and supersedes all prior agreements and understandings, both written
and oral, between the Guarantor and the Lender with respect to the subject
matter hereof.
Section 20. Severability. The invalidity or unenforceability of any
phrase, sentence, clause or section in this Guaranty shall not affect the
validity or enforceability of the remaining portions of this Guaranty, or any
hereof.
Section 21. Construction. This Guaranty shall be construed and enforced in
accordance with the laws of the Commonwealth of Virginia without regard to its
rules with respect to choice of law. All references in this Guaranty to the
singular number and neuter gender shall be deemed to mean and include the plural
number and all genders, and vice versa, unless the context shall otherwise
require.
The Guarantor has executed this Guaranty as of the date first above
written.
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TERRACE HOLDINGS. INC.
By___________________________________________
Milton Naimot, Chief Executive Officer
Address for Notices:
0000 Xxxxxxxx Xxxx, Xxxxx X-000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
COMMOMWEALTH OF VIRGINIA )
) TO WIT:
CITY OF RICHMOND )
On this day of August, 1997, before me, the undersigned officer,
personally appeared , known to me (or satisfactorily
proven) to be the person whose name is subscribed to within the instrument and
acknowledged that he executed the same for the purposes therein contained.
In witness whereof I hereunder set my hand and official seal.
Notary Public
My Commission expires:
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