EXHIBIT (4)(xvii)
CONTINUING UNCONDITIONAL GUARANTY
WHEREAS, Plymouth Rubber Company, Inc. ("Borrower") has
entered into a Loan and Security Agreement dated June 6, 1996*, (the
"Loan Agreement") with LaSalle National Bank ("Bank") pursuant to
which Bank has made or may, in its sole discretion, from time to
time hereafter, made loans and advances to or extend other financial
accommodations to Borrower;
WHEREAS, the undersigned is desirous of having Bank extend
and/or continue the extension of credit to Borrower and Bank has
required that Guarantor (as hereinafter defined) execute and deliver
this Guaranty to Bank as a condition to the extension and
continuation of credit by Bank; and
WHEREAS, the extension and/or continued extension of credit,
as aforesaid, by Bank is necessary and desirable to the conduct and
operation of the business of Borrower and will inure to the personal
and financial benefit of Guarantor;
NOW, THEREFORE, for value received and in consideration of any
loan, advance, or financial accommodation of any kind whatsoever
heretofore, now or hereafter made, given or granted to Borrower by
Bank (including, without limitation, the Loans as defined in, and
made or to be made by Bank to Borrower pursuant to, the Loan
Agreement), the undersigned, and each of them, if there be more than
one, (collectively, the "Guarantor") unconditionally guaranties (i)
the full and prompt payment when due, whether at maturity or
earlier, by reason of acceleration or otherwise, and at all times
thereafter, of all of the indebtedness, liabilities and obligations
of every kind and nature of Borrower to Bank or any parent,
affiliate or subsidiary of Bank (the term "Bank" as used hereafter
shall include such parents, affiliates and subsidiaries), howsoever
created, arising or evidenced, whether direct or indirect, absolute
or contingent, joint or several, now or hereafter existing, or due
or to become due, an howsoever owned, held or acquired by Bank,
whether through discount, overdraft, purchase, direct loan or as
collateral or otherwise, including without limitation all
obligations and liabilities of Borrower to Bank under the Loan
Agreement and (ii) the prompt, full and faithful discharge by
Borrower of each and every term, condition, agreement,
representation and warranty now or hereafter made by Borrower to
Bank (all such indebtedness, liabilities and obligations being
hereinafter referred to as the "Borrower's Liabilities"). Guarantor
further agrees to pay all costs and expenses, including, without
limitation, all court costs and reasonable attorneys' and
paralegals' fees paid or incurred by Bank in endeavoring to collect
all or any part of Borrowers's Liabilities from, or in prosecuting
any action against, Guarantor or any other guarantor of all or any
part of Borrower's Liabilities. All amounts payable by Guarantor
under this Guaranty shall be payable upon demand by Bank.
Notwithstanding any provision of this Guaranty to the
contrary, it is intended that this Guaranty, and any liens and
security interests granted by Guarantor to secure this Guaranty, not
constitute a "Fraudulent Conveyance" (as defined below).
Consequently, Guarantor agrees that if the Guaranty, or any liens or
security interests securing this Guaranty, would, but for the
application of this sentence, constitute a Fraudulent Conveyance,
this Guaranty and each such lien and security interest shall be
valid and enforceable only to the maximum extent that would not
cause this Guaranty or such lien or security interest to constitute
a Fraudulent Conveyance, and this Guaranty shall automatically be
deemed to have been amended accordingly at all relevant times. For
purposes hereof, "Fraudulent Conveyance" means a fraudulent
conveyance under Section 548 of the "Bankruptcy Code" (as hereinafter
defined) or a fraudulent conveyance or fraudulent transfer under the
provisions of any applicable fraudulent conveyance or fraudulent
transfer law or similar law of any state, nation or other
governmental unit, as in effect from time to time.
Guarantor hereby agrees that, except as hereinafter provided,
its obligations under this Guaranty shall be unconditional,
irrespective of (i) the validity or enforceability of Borrower's
Liabilities or any part thereof, or of any promissory note or other
document evidencing all or any part of Borrower's Liabilities, (ii)
the absence of any attempt to collect Borrower's Liabilities from
Borrower or any other guarantor or other action to enforce the same,
(iii) the waiver or consent by Bank with respect to any provision of
any instrument evidencing Borrower's Liabilities, or any part
thereof, or any other agreement heretofore, now or hereafter
executed by Borrower and delivered to Bank, (iv) failure by Bank to
take any steps to perfect and maintain its security interest in, or
to preserve its rights to, any security or collateral for Borrower's
Liabilities, (v) the institution of any proceeding under Chapter 11
of Title 11 of the United States Code (11 U.S.C. 101 et seq.), as
amended (The "Bankruptcy Code"), or any similar proceeding, by or
against Borrower, or Bank's election in any such proceeding of the
application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any
borrowing or grant of a security interest by Borrower as debtor-in-
possession, under Section 364 of the Bankruptcy Code, (vii) the
disallowance, under Section 502 of the Bankruptcy Code, of all or
any portion of Bank's claim(s) for repayment of Borrower's
Liabilities, or (viii) any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of receivership
or bankruptcy of Borrower, protest or notice with respect to
Borrower's Liabilities and all demands whatsoever, and covenants
that this Guaranty will not be discharged, except by complete
performance of the obligations and liabilities contained herein.
Upon any default by Borrower as provided in any instrument or
document evidencing all or any part of Borrower's Liabilities,
including without limitation the Loan Agreement, Bank may, at its
sole election, proceed directly and at once, without notice, against
Guarantor to collect and recover the full amount or any portion of
Borrower's Liabilities, without first proceeding against Borrower,
or any other person, firm, or corporation, or against any security
or collateral for Borrower's Liabilities.
Bank is hereby authorized, without notice or demand and
without affecting the liability of Guarantor hereunder, to at any
time and from time to time (i) renew, extend, accelerate or
otherwise change the time for payment of, or other terms relating
to, Borrower's Liabilities or otherwise modify, amend or change the
terms of any promissory note or other agreement, document or
instrument now or hereafter executed by Borrower and delivered to
Bank; (ii) accept partial payments on Borrower's Liabilities; (iii)
take and hold security or collateral for the payment of Borrower's
Liabilities guaranteed hereby, or for the payment of this Guaranty,
or for the payment of any other guaranties of Borrower's Liabilities
or other liabilities of Borrower, and exchange, enforce, waive and
release any such security or collateral; (iv) apply such security or
collateral and direct the order or manner of sale thereof as in its
sole discretion it may determine; and (v) settle, release,
compromise, collect or otherwise liquidate Borrower's Liabilities
and any security or collateral therefore in any manner, without
affecting or impairing the obligations of Guarantor hereunder. Bank
shall have the exclusive right to determine the time and manner of
application of any payments or credits, whether received from
Borrower or any other source, and such determination shall be
binding on Guarantor. All such payments and credits may be applied,
reversed and reapplied, in whole or in part, to any of Borrower's
Liabilities as Bank shall determine in its sole discretion without
affecting the validity or enforceability of this Guaranty.
To secure the payment and performance of Guarantor's
obligations and liabilities contained herein, Guarantor grants to
Bank a security interest in all property of Guarantor delivered
concurrently herewith or which is now, or at any time hereafter in
transit to, or in the possession, custody or control of Bank, and
all proceeds of all such property. Guarantor agrees that Bank shall
have the rights and remedies of a secured party under the Uniform
Commercial Code of Illinois, as now existing or hereafter amended,
with respect to all of the aforesaid property, including without
limitation thereof, the right to sell or otherwise dispose of any or
all of such property and apply the proceeds of such sale to the
payment of Borrower's Liabilities. In addition, at any time after
maturity of Borrower's Liabilities by reason of acceleration or
otherwise, Bank may, in its sole discretion, without notice to
Guarantor and regardless of the acceptance of any security or
collateral for the payment hereof, appropriate and apply toward the
payment of Borrower's Liabilities (i) any indebtedness due or to
become due from Bank to Guarantor, and (ii) any moneys, credits or
other property belonging to Guarantor, at any time held by or coming
into the possession of Bank whether for deposit or otherwise.
Guarantor hereby assumes responsibility for keeping itself
informed of the financial condition of Borrower, and any and all
endorsers and/or other guarantors of any instrument or document
evidencing all or any part of Borrower's Liabilities and of all
other circumstances bearing upon the risk of nonpayment of
Borrower's Liabilities or any part thereof that diligent inquiry
would reveal and Guarantor hereby agrees that Bank shall have no
duty to advise Guarantor of information known to Bank regarding such
condition or any such circumstances or to undertake any
investigation not a part of its regular business routine. If Bank,
in its sole discretion, undertakes at any time or from time to time
to provide any such information to any Guarantor, Bank shall be
under no obligation to update any such information or to provide any
such information to Guarantor on any subsequent occasion.
Guarantor consents and agrees that Bank shall be under no
obligation to xxxxxxxx any assets in favor of Guarantor or against
or in payment of any or all of Borrower's Liabilities. Guarantor
further agrees that, to the extent that Borrower makes a payment or
payments to Bank, or Bank receives any proceeds of collateral, which
payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to Borrower, its estate, trustee,
receiver or any other party, including, without limitation,
Guarantor, under any bankruptcy law, state or federal law, common
law or equitable theory, then to the extent of such payment or
repayment, Borrower's Liabilities or the part thereof which has been
paid, reduced or satisfied by such amount, and Guarantor's
obligations hereunder with respect to such portion of Borrower's
Liabilities, shall be reinstated and continued in full force and
effect as of the date such initial payment, reduction or
satisfaction occurred.
Guarantor agrees that any and all claims of Guarantor against
Borrower, any endorser or any other guarantor of all or any part of
Borrower's Liabilities, or against any of Borrower's properties,
whether arising by reason of any payment by Guarantor to Bank
pursuant to the provisions hereof, or otherwise, shall be
subordinate and subject in right of payment to the prior payment, in
full, of all of Borrower's Liabilities.
Bank may, without notice to anyone, sell or assign Borrower's
Liabilities or any part thereof, or grant participations therein,
and in any such event each and every immediate or remote assignee or
holder of, or participant in, all or any of Borrower's Liabilities
shall have the right to enforce this Guaranty, by suit or otherwise
for the benefit of such assignee, holder, or participant, as fully
as if herein by name specifically given such right, but Bank shall
have an unimpaired right, prior and superior to that of any such
assignee, holder or participant, to enforce this Guaranty for the
benefit of Bank, as to any part of Borrower's Liabilities retained
by Bank.
This Guaranty shall be binding upon Guarantor and upon the
successors (including without limitation, any receiver, trustee or
debtor in possession of or for Guarantor) of Guarantor and shall
inure to the benefit of Bank and its successors and assigns. If
there is more than one signatory hereto, all references to Guarantor
herein shall include each and every Guarantor and each and every
obligation of Guarantor hereunder shall be the joint and several
obligation of each Guarantor. Each Guarantor that is a corporation
or a partnership hereby represents and warrants that it has all
necessary corporate or partnership authority, as the case may be, to
execute and deliver this Guaranty and to perform its obligations
hereunder.
This Guaranty shall continue in full force and effect, and
Bank shall be entitled to make loans and advances and extend
financial accommodations to Borrower on the faith hereof until such
time as Bank has, in writing, notified Guarantor that all of
Borrower's Liabilities have been paid in full and discharged and the
Loan Agreement has been terminated or until Bank has actually
received written notice from any Guarantor of the discontinuance of
this Guaranty as to that Guarantor, or written notice of the death,
incompetency or dissolution of any Guarantor. In case of any
discontinuance by, or death, incompetency or dissolution of, any
Guarantor (collectively, a "Termination Event"), this Guaranty and
the obligations of such Guarantor and his or its heirs, legal
representatives, successors or assigns, as the case may be, shall
remain in full force and effect with respect to all of Borrower's
Liabilities incurred prior to the receipt by Bank of written notice
of the Terminating Event. The occurrence of a Terminating Event
with respect to one Guarantor shall not affect or impair the
obligations of any other Guarantor hereunder.
Wherever possible each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
THIS GUARANTY SHALL BE GOVERNED AND CONTROLLED BY THE INTERNAL
LAWS OF THE STATE OF ILLINOIS.
Guarantor irrevocably agrees that, subject to Bank's sold and
absolute election, ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR
RESPECT, ARISING OUT OF OR FROM OR RELATED TO THIS GUARANTY SHALL BE
LITIGATED IN COURTS HAVING SITUS WITHIN THE CITY OF CHICAGO, STATE
OF ILLINOIS. GUARANTOR HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURTS LOCATED WITHIN
SAID CITY AND STATE. Guarantor hereby irrevocably appoints and
designates the Secretary of State of Illinois, whose address is
Springfield, Illinois (or any other person having and maintaining a
place of business in such state whom Guarantor may from time to time
hereafter designate upon ten (10) days written notice to Bank and
who Bank has agreed in its sole discretion in writing is
satisfactory and who has executed an agreement in form and substance
satisfactory to Bank agreeing to act as such attorney and agent), as
Guarantor's true and lawful attorney and duly authorized agent for
acceptance of service of legal process. Guarantor agrees that
service of such process upon such person shall constitute personal
service of such process upon Guarantor. GUARANTOR HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION
BROUGHT AGAINST GUARANTOR BY BANK IN ACCORDANCE WITH THIS PARAGRAPH.
GUARANTOR HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS
GUARANTY.
If there is attached to this Guaranty a Rider A - Special
Provisions, such Rider is by this reference incorporated into and
made a part of this Guaranty.
IN WITNESS WHEREOF, this Guaranty has been duly executed by
the undersigned as of this 20 day of March , 19 97 .
FOR INDIVIDUAL GUARANTOR: FOR CORPORATE OR PARTNERSHIP
GUARANTOR:
Brite-Line Technologies, Inc.
By
Its
Address:
By
Its
00000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Address:
RIDER A - SPECIAL PROVISIONS
This Rider A - Special Provisions is attached to and made a
part of that certain Continuing Unconditional Guaranty (the
"Guaranty") of even date herewith executed by BRITE-LINE
TECHNOLOGIES, INC. ("Guarantor") in favor of LaSalle National Bank
("Bank").
1. Notwithstanding anything to the contrary contained in the
Guaranty, no payment made by or for the account of Guarantor
including, without limitation, (i) a payment made by Guarantor in
respect of Borrower's Liabilities or (ii) a payment made by any
other person under any other guaranty, shall entitle the Guarantor
by subrogation or otherwise, to any payment from Borrower or from or
out of any property of Borrower and Guarantor shall not exercise any
right or remedy against Borrower or any property of Borrower by
reason of any performance by Guarantor under the Guaranty.
BRITE-LINE TECHNOLOGIES, INC.
By
Its
