Exhibit 10.1(c)
GUARANTY
Boston, Massachusetts
Dated as of February 11, 1999
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and to induce Norwest Business
Credit, Inc. (herein, with its participants, successors and assigns, called the
"LENDER"), at its option, at any time or from time to time to make loans or
extend other accommodations to or for the account of Xxxxxxx & Yale, Inc.
(herein called the "BORROWER") or to engage in any other transactions with the
Borrower, the undersigned hereby absolutely and unconditionally guaranties to
the Lender the full and prompt payment when due, whether at maturity or earlier
by reason of acceleration or otherwise, of any and all present and future debts,
liabilities and obligations owed by the Borrower to the Lender; and the
undersigned acknowledges and agrees with the Lender that:
1. The debts, liabilities and obligations guarantied hereby
(collectively referred to herein as the "INDEBTEDNESS") shall include, but shall
not be limited to, debts, liabilities and obligations arising out of loans,
credit transactions, financial accommodations, discounts, purchases of property
or other transactions with the Borrower or for the Borrower's account or out of
any other transaction or event, owed to the Lender or owed to others by reason
of participations granted to or interests acquired or created for or sold to
them by the Lender, in each case whether now existing or hereafter arising,
whether arising directly in a transaction or event involving the Lender or
acquired by the Lender from another by purchase or assignment or as collateral
security, whether owed by the Borrower as drawer, maker, endorser, accommodation
party, guarantor, principal, surety or as a member of any partnership,
syndicate, association or group or in any other capacity, whether absolute or
contingent, direct or indirect, primary or secondary, sole, joint, several or
joint and several, secured or unsecured, due or not due, contractual, tortious
or statutory, liquidated or unliquidated, arising by agreement or imposed by law
or otherwise.
2. No act or thing need occur to establish the liability of
the undersigned hereunder, and no act or thing, except full payment and
discharge of all of the Indebtedness, shall in any way exonerate the undersigned
hereunder or modify, reduce, limit or release the liability of the undersigned
hereunder. This is an absolute, unconditional and continuing guaranty of payment
of the Indebtedness and shall continue to be in force and be binding upon the
undersigned, whether or not all of the Indebtedness is paid in full, until this
guaranty is revoked prospectively as to future transactions, by written notice
actually received by the Lender, and such revocation shall not be effective as
to the amount of Indebtedness existing or committed for at the time of actual
receipt of such notice by the Lender, or as to any renewals, extensions,
refinancings or refundings thereof. The death or incompetence of the undersigned
shall not revoke this guaranty, except upon actual receipt of written notice
thereof by the Lender and only prospectively, as to future transactions, as
herein set forth.
3. If the undersigned shall die or shall be or become
insolvent (however defined), then the Lender shall have the right to declare
immediately due and payable, and the undersigned will forthwith pay to the
Lender, the full amount of all of the Indebtedness whether due and payable
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or unmatured. If the undersigned voluntarily commences or there is commenced
involuntarily against the undersigned a case under the United States Bankruptcy
Code, the full amount of all of the Indebtedness, whether due and payable or
unmatured, shall be immediately due and payable without demand or notice
thereof.
4. The undersigned shall be liable for all of the
Indebtedness, without limitation as to amount, plus accrued interest thereon and
all attorneys' fees, collection costs and enforcement expenses referable
thereto. The Indebtedness may be created and continued in any amount, whether or
not in excess of such principal amount, without affecting or impairing the
liability of the undersigned hereunder, and the Lender may pay (or allow for the
payment of) the excess out of any sums received by or available to the Lender on
account of the Indebtedness from the Borrower or any other person (except the
undersigned), from their properties, out of any collateral security or from any
other source, and such payment (or allowance) shall not reduce, affect or impair
the liability of the undersigned hereunder. If the liability of the undersigned
is limited to a stated amount pursuant to this paragraph 4, any payment made by
the undersigned under this guaranty shall be effective to reduce or discharge
such liability only if accompanied by a written transmittal document, received
by the Lender, advising the Lender that such payment is made under this guaranty
for such purpose.
5. The undersigned will not exercise or enforce any right of
contribution, reimbursement, exoneration, recourse or subrogation available to
the undersigned as to any of the Indebtedness, or against any person liable
therefor, or as to any collateral security therefor, unless and until all of the
Indebtedness shall have been fully paid and discharged.
6. The undersigned will pay or reimburse the Lender for all
costs, expenses and attorneys' fees paid or incurred by the Lender in
endeavoring to collect and enforce the Indebtedness and in enforcing this
guaranty.
7. The Lender shall not be obligated by reason of its
acceptance of this guaranty to engage in any transactions with or for the
Borrower. Whether or not any existing relationship between the undersigned and
the Borrower has been changed or ended and whether or not this guaranty has been
revoked, the Lender may enter into transactions resulting in the creation or
continuance of the Indebtedness and may otherwise agree, consent to or suffer
the creation or continuance of any of the Indebtedness, without any consent or
approval by the undersigned and without any prior or subsequent notice to the
undersigned. The liability of the undersigned shall not be affected or impaired
by any of the following acts or things (which the Lender is expressly authorized
to do, omit or suffer from time to time, both before and after revocation of
this guaranty, without consent or approval by or notice to the undersigned): (a)
any acceptance of collateral security, guarantors, accommodation parties or
sureties for any or all of the Indebtedness; (b) one or more extensions or
renewals of the Indebtedness (whether or not for longer than the original
period) or any modification of the interest rates, maturities, if any, or other
contractual terms applicable to any of the Indebtedness or any amendment or
modification of any of the terms or provisions of any loan agreement or other
agreement under which the Indebtedness or any part thereof arose; (c) any waiver
or indulgence granted to the Borrower, any delay or lack of diligence in the
enforcement of the Indebtedness or any failure to institute proceedings, file a
claim, give any
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required notices or otherwise protect any of the Indebtedness; (d) any full or
partial release of, compromise or settlement with, or agreement not to xxx, the
Borrower or any guarantor or other person liable in respect of any of the
Indebtedness; (e) any release, surrender, cancellation or other discharge of any
evidence of the Indebtedness or the acceptance of any instrument in renewal or
substitution therefor; (f) any failure to obtain collateral security (including
rights of setoff) for the Indebtedness, or to see to the proper or sufficient
creation and perfection thereof, or to establish the priority thereof, or to
preserve, protect, insure, care for, exercise or enforce any collateral
security; or any modification, alteration, substitution, exchange, surrender,
cancellation, termination, release or other change, impairment, limitation, loss
or discharge of any collateral security; (g) any collection, sale, lease or
disposition of, or any other foreclosure or enforcement of or realization on,
any collateral security; (h) any assignment, pledge or other transfer of any of
the Indebtedness or any evidence thereof; (i) any manner, order or method of
application of any payments or credits upon the Indebtedness; and (j) any
election by the Lender under Section 1111(b) of the United States Bankruptcy
Code (Title 11 of the United States Code entitled "Bankruptcy"). The undersigned
waives any and all defenses and discharges available to a surety, guarantor or
accommodation co- obligor.
8. The undersigned waives any and all defenses, claims,
setoffs and discharges of the Borrower, or any other obligor, pertaining to the
Indebtedness, except the defense of discharge by payment in full. Without
limiting the generality of the foregoing, the undersigned will not assert, plead
or enforce against the Lender any defense of waiver, release, discharge or
disallowance in bankruptcy, statute of limitations, res judicata, statute of
frauds, anti-deficiency statute, fraud, incapacity, minority, usury, illegality
or unenforceability which may be available to the Borrower or any other person
liable in respect of any of the Indebtedness, or any setoff available against
the Lender to the Borrower or any other such person, whether or not on account
of a related transaction. The undersigned expressly agrees that the undersigned
shall be and remain liable for any deficiency remaining after foreclosure of any
mortgage or security interest securing the Indebtedness, whether or not the
liability of the Borrower or any other obligor for such deficiency is discharged
pursuant to statute or judicial decision. The liability of the undersigned shall
not be affected or impaired by any voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all the assets,
marshalling of assets and liabilities, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of, or other similar event or proceeding affecting,
the Borrower or any of its assets. The undersigned will not assert, plead or
enforce against the Lender any claim, defense or setoff available to the
undersigned against the Borrower.
9. The undersigned waives presentment, demand for payment,
notice of dishonor or nonpayment and protest of any instrument evidencing the
Indebtedness. The Lender shall not be required first to resort for payment of
the Indebtedness to the Borrower or other persons, or their properties, or first
to enforce, realize upon or exhaust any collateral security for the
Indebtedness, before enforcing this guaranty.
10. If any payment applied by the Lender to the Indebtedness
is thereafter set aside, recovered, rescinded or required to be returned for any
reason (including, without limitation, the bankruptcy, insolvency or
reorganization of the Borrower or any other obligor), the Indebtedness
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to which such payment was applied shall for the purpose of this guaranty be
deemed to have continued in existence, notwithstanding such application, and
this guaranty shall be enforceable as to such Indebtedness as fully as if such
application had never been made.
11. The liability of the undersigned under this guaranty is in
addition to and shall be cumulative with all other liabilities of the
undersigned to the Lender as guarantor, surety, endorser, accommodation
co-obligor or otherwise of any of the Indebtedness or obligation of the
Borrower, without any limitation as to amount, unless the instrument or
agreement evidencing or creating such other liability specifically provides to
the contrary.
12. The undersigned will provide to the Lender annually a
personal financial statement prepared as of December 31 listing all assets,
liabilities and net worth of the undersigned. The statement will be signed and
dated and will be forwarded to the Lender no later than the following January
31.
13. The undersigned acknowledges and agrees that the Lender
(a) has not made any representations or warranties with respect to, (b) does not
assume any responsibility to the undersigned for, and (c) has no duty to provide
information to the undersigned regarding, the enforceability of any of the
Indebtedness or the financial condition of the Borrower or any guarantor. The
undersigned has independently determined the creditworthiness of the Borrower
and the enforceability of the Indebtedness and until the Indebtedness is paid in
full will independently and without reliance on the Lender continue to make such
determinations.
14. This guaranty shall be effective upon delivery to the
Lender, without further act, condition or acceptance by the Lender, shall be
binding upon the undersigned and the heirs, representatives, successors and
assigns of the undersigned and shall inure to the benefit of the Lender and its
participants, successors and assigns. Any invalidity or unenforceability of any
provision or application of this guaranty shall not affect other lawful
provisions and application thereof, and to this end the provisions of this
guaranty are declared to be severable. This guaranty may not be waived,
modified, amended, terminated, released or otherwise changed except by a writing
signed by the undersigned and the Lender. This guaranty shall be governed by and
construed in accordance with the substantive laws (other than conflict laws) of
the Commonwealth of Massachusetts. The undersigned waives notice of the Lender's
acceptance hereof. The undersigned irrevocably (a) agrees that any suit, action
or other legal proceeding arising out of or relating to this guaranty may be
brought in a court of record in the counties of Suffolk or Middlesex in the
Commonwealth of Massachusetts or in the Courts of the United States located in
the Commonwealth of Massachusetts, (b) consents to the jurisdiction of each such
court in any suit, action or proceeding, (c) waives any objection which it may
have to the laying of venue of any such suit, action or proceeding in any such
courts and any claim that any such suit, action or proceeding has been brought
in an inconvenient forum, and (d) agrees that a final judgment in any such suit,
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
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15. THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF, BASED ON
OR PERTAINING TO THIS GUARANTY.
IN WITNESS WHEREOF, this guaranty has been duly executed by
the undersigned under seal the day and year first above written.
/s/ [SIGNATURE ILLEGIBLE] /s/ XXXX X. XXXXXXXX
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Witness Xxxx X. Xxxxxxxx
Address: 00 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxxxx 00000
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. February 11, 1999
Then personally appeared the above-named, Xxxx X. Xxxxxxxx, and
acknowledged the foregoing instrument to be his free act and deed, before me,
/s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, Notary Public
My commission expires: June 15, 2001
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