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GUARANTOR: BCAM International, Inc. BORROWER: Drew Shoe Corporation
ADDRESS: 0000 Xxxx Xxxxxxx Xxxx ADDRESS: 000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000 Xxxxxxxxx, Xxxx 00000
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CONTINUING GUARANTY
This Continuing Guaranty (this "Guaranty") is made as of the ______ day of
September, 1997.
For the purpose of inducing Bank One, National Association (hereinafter referred
to as "Bank") to lend money or extend credit to Drew Shoe Corporation
(hereinafter referred to as "Borrower"), the undersigned (hereinafter referred
to as "Guarantor") hereby unconditionally guarantees the prompt and full payment
to Bank when due, whether by acceleration or otherwise, of all Obligations of
any kind for which Borrower is now or may hereafter become liable to Bank in any
manner.
The word "Obligations" means, without limitation, all indebtedness, debts and
liabilities (including principal, interest, late charges, collection costs,
attorneys' fees and the like) of Borrower to Bank, either created by Borrower
alone or together with another or others, primary or secondary, secured or
unsecured, absolute or contingent, liquidated or unliquidated, direct or
indirect, whether evidenced by note, draft, application for letter of credit,
agreements of guaranty or otherwise, and any and all renewals of, extensions of
or substitutes therefor, arising from credit extended or to be extended to
Borrower in the principal amount of $5,500,000.00, pursuant to a Loan and
Security Agreement, a Revolving Note and a Term Note, or one or more instruments
of indebtedness and related documents dated September ___, 1997, any and all
supplements, modifications, or amendments relating thereto.
Guarantor hereby promises that if one or more of the Obligations are not paid
when due, Guarantor will, upon request of Bank, pay the Obligations to Bank,
irrespective of any action or lack of action on Bank's part in connection with
the acquisition, perfection, possession, enforcement or disposition of any or
all Obligations or any or all security therefor or otherwise, and further
irrespective of any invalidity in any or all Obligations, the unenforceability
thereof or the insufficiency, invalidity or unenforceability of any security
therefor.
Guarantor waives notice of any and all acceptances of this Guaranty. This
Guaranty is a continuing guaranty, and, in addition to covering all present
Obligations of Borrower to Bank, will extend to all future Obligations of
Borrower to Bank, whether such Obligations are reduced, amended, or entirely
extinguished and thereafter increased or reincurred. This Guaranty is made and
will remain in effect until the Obligations are paid in full and until the
Borrower has no right to request further advances under the documents or
instruments evidencing the Obligations.
Bank's rights hereunder shall be reinstated and revived, and this Guaranty shall
be fully enforceable, with respect to any amount at any time paid on account of
the Obligations which thereafter shall be required to be restored or returned by
Bank upon the bankruptcy, insolvency or reorganization of Borrower, Guarantor,
or any other person, or as a result of any other fact or circumstance, all as
though such amount had not been paid.
In the event Guarantor at any time shall pay any sums on account of any
Obligations or take any other action in performance of any Obligations,
Guarantor shall be subrogated to the rights, powers, privileges and remedies of
the Bank in respect of such Obligations; provided that all such rights of
subrogation and all claims and indebtedness arising therefrom shall be, and
Guarantor hereby agrees that the same are, and shall be at all times, in all
respects subordinate and junior to all Obligations, and provided, further, that
Guarantor hereby agrees that Guarantor shall not seek to exercise any such
rights of subrogation, reimbursement, exoneration, or indemnity whatsoever or
any rights of recourse to any security for any of the Obligations unless or
until all Obligations shall have been indefeasibly paid in full and duly and
fully performed.
Guarantor waives presentment, demand, protest, notice of protest and notice of
dishonor or other nonpayment of any and all Obligations and further waives
notice of sale or other disposition of any collateral or security now held or
hereafter acquired by Bank. Guarantor agrees that no extension of time, whether
one or more, nor any other indulgence granted by Bank to Borrower, or to
Guarantor, and no omission or delay on Bank's part in exercising any right
against, or in taking any action to collect from or pursue Bank's remedies
against Borrower or Guarantor, or any of them, will release, discharge or modify
the duties of Guarantor. Guarantor agrees that Bank may, without notice to or
further consent from Guarantor, release or modify any collateral, security or
other guaranties now held or hereafter acquired, or substitute other collateral,
security or other guaranties, and no such action will release, discharge or
modify the duties of Guarantor hereunder. Guarantor further agrees that Bank
will not be required to pursue or exhaust any of its rights or remedies against
Borrower or Guarantor, or any of them, with respect to payment of any of the
Obligations, or to pursue, exhaust or preserve any of its rights or remedies
with respect to any collateral, security or other guaranties given to secure the
Obligations, or to take any action of any sort, prior to demanding payment from
or pursuing its remedies against Guarantor.
Guarantor agrees to provide to Bank true and complete (a) audited, unqualified
financial statements, including a balance sheet and statements of income and
surplus, and a statement of cash flows, prepared in accordance with GAAP and
certified by independent public accountants satisfactory to Bank, within 120
days after the end of each fiscal year, (b) financial statements, including a
balance sheet and statements of income and surplus, and a statement of cash
flows in form filed with the Securities and Exchange Commission, within 45 days
after the end of each fiscal quarter, and (c) completed tax returns together
with all schedules thereto, within 30 days of the filing of the same. "GAAP"
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board, the American Institute of
Certified Public Accountants and the Financial Accounting Standards Board as in
effect on the date hereof. Guarantor agrees that failure to furnish such
financial statements may constitute or
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be deemed to constitute a default or event of default of the Obligations.
Guarantor agrees that any legal suit, action or proceeding arising out of or
relating to this Guaranty may be instituted in a state or federal court of
appropriate subject matter jurisdiction in the State of Ohio; waives any
objection which Guarantor may have now or acquire hereafter to the venue of any
such suit, action or proceeding; and irrevocably submits to the jurisdiction of
any such court in any such suit, action or proceeding.
WAIVER OF RIGHT TO TRIAL BY JURY
GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS GUARANTY OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
GUARANTOR OR BANK WITH RESPECT TO THIS GUARANTY OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
GUARANTOR HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT
GUARANTOR OR BANK MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF GUARANTOR TO THE WAIVER OF
THE RIGHT OF GUARANTOR TO TRIAL BY JURY.
Guarantor hereby authorizes any attorney at law to appear for Guarantor in any
action on any or all Obligations guaranteed hereby at any time after such
Obligations become due, whether by acceleration or otherwise, in any court of
record in or of the State of Ohio or elsewhere, to waive the issuing and service
of process against, and confess judgment against Guarantor in favor of Bank for
the amount that may be due, including interest, late charges, collection costs,
attorneys' fees and the like as provided for in said Obligations, and costs of
suit, and to waive and release all errors in said proceedings and judgments, and
all petitions in error and rights of appeal from the judgments rendered.
If any Obligation of Borrower is assigned by Bank, this Guaranty will inure to
the benefit of Bank's assignee, and to the benefit of any subsequent assignee,
to the extent of the assignment or assignments, provided that no assignment will
operate to relieve Guarantor from any duty to Bank hereunder with respect to any
unassigned Obligation. In the event that any one or more of the provisions
contained in this Guaranty or any application thereof shall be determined to be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and any other
applications thereof shall not in any way be affected or
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impaired thereby. This Guaranty shall be construed in accordance with the
law of the State of Ohio.
The liabilities evidenced hereby may from time to time be evidenced by another
guaranty or guaranties given in substitution or reaffirmation hereof. Any
security interest or mortgage which secures the liabilities evidenced hereby
shall remain in full force and effect notwithstanding any such substitution or
reaffirmation.
Bank shall not be bound to take any steps necessary to preserve any rights in
the collateral against prior parties. If any Obligations hereunder are not paid
when due, Bank may, at its option, demand, xxx for, collect or make any
compromise or settlement it deems desirable with reference to any collateral,
and shall have the rights of a secured party under the law of the State of Ohio.
Guarantor shall be liable for any deficiency.
In witness whereof, Guarantor has caused this Guaranty to be executed by an
officer therewith duly authorized as of the date set forth above.
GUARANTOR:
BCAM INTERNATIONAL, INC.
By:________________________________
Its:_______________________________
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