Exhibit 10.14
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty"), made and
entered into effective as of the 3rd day of June, 2004, by XXXXXXXXX CEMENT &
SUPPLY CORPORATION, a Pennsylvania corporation ("Guarantor") for the benefit of
CITIZENS BANK OF PENNSYLVANIA, a Pennsylvania state chartered bank (the
"Lender").
WITNESSETH:
WHEREAS, Bradford Resources, Ltd., a Pennsylvania limited partnership
(the "Borrower") has requested the Lender to enter into a certain Credit
Agreement (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") pursuant to which, among
other things, the Lender has agreed to make a standby term loan available to the
Borrower in the principal amount of $10,000,000 (the "Standby Term Loan"), such
loan to be evidenced by a Standby Term Loan Note in the principal amount
$10,000,000 issued by the Borrower to the Lender (the "Standby Term Loan Note"),
together with interest on the Standby Term Loan at the rates provided for in the
Credit Agreement and payable in the manner and at the times therein set forth;
and
WHEREAS, as a result of, among other things, the common affiliate
ownership of the Borrower and the Guarantor, and the financial and other support
that the Lender may in the future provide to the collective business enterprise
of the Borrower and the Guarantor, the Guarantor has determined that executing
this Agreement is in its financial benefit; and
WHEREAS, the Lender is not willing to enter into the Credit Agreement
unless and until Guarantor executes and delivers this Guaranty, and Guarantor
acknowledges and understands that this Guaranty is a material inducement for the
Lender's agreement to make the Standby Term Loan available to the Borrower.
NOW THEREFORE, for and in consideration of the foregoing premises and
in order to induce the Lender to enter into the Credit Agreement and make
Standby Term Loan to the Borrower thereunder, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Guarantor covenants and hereby agrees as follows:
1. Unless otherwise defined herein, capitalized terms used herein shall
have the respective meanings assigned to such terms in the Credit Agreement. In
addition, the following terms shall have the following meanings:
"Bankruptcy Code" means the federal Bankruptcy Code, 11 U.S.C. Section
101 et. seq., as amended.
"Guaranteed Obligations" means all indebtedness and obligations of the
Borrower to the Lender, now existing or hereafter incurred or arising under the
Credit Agreement, the Standby Term Loan Note and all other Loan Documents, of
every kind, nature and description, whether direct or indirect, secured or
unsecured, joint, several, or joint and several, absolute or contingent, due or
to become due, whether by acceleration or otherwise, as the same may be
extended, renewed, increased, reduced, refinanced, refunded, amended, modified,
supplemented or consolidated from time to time. Without limiting the foregoing,
the Guaranteed Obligations shall include the Obligations (as defined in the
Credit Agreement) and the liability of the Borrower for the payment of (i)
principal, interest, expenses and fees (including counsel fees) chargeable to or
due from the Borrower under the Credit Agreement, the Standby Term Loan Note and
the other Loan Documents, as the same may be extended, renewed, increased,
reduced, refinanced, refunded, amended, modified, supplemented or consolidated
form time to time, and (ii) all amounts which would have accrued under the Loan
Documents but for the commencement of a case by or against the Borrower under
the Bankruptcy Code.
2. (a) The Guarantor hereby absolutely, irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, the due and
punctual payment in full to the Lender of all existing and future Guaranteed
Obligations when due, at maturity, by acceleration, demand, prepayment or
otherwise, and at all times thereafter. This Guaranty is a guaranty of payment
and not merely collection. The Guarantor acknowledges that its liability
hereunder is absolute and unconditional and agrees to make payment to the Lender
even if the Guaranteed Obligations are for any reason invalid, irregular or
unenforceable.
(b) The Guarantor acknowledges that valuable consideration supports
this Guaranty, including, without limitation, the consideration set forth in the
recitals above as well as any commitment to lend, extension of credit or other
financial accommodation, whether heretofore or hereafter made by the Lender to
the Borrower, any extension, renewal or replacement of any of the Guaranteed
Obligations or any forbearance with respect to any of the Guaranteed Obligations
or otherwise.
(c) The Guarantor agrees that all payments under this Guaranty shall be
made in United States currency and in the same manner as provided for in the
Guaranteed Obligations.
(d) The Guarantor also guarantees the full, prompt and unconditional
performance of all obligations and agreements of every kind owed or hereafter to
be owed by the Borrower to the Lender under or in connection with the Credit
Agreement or any of the other Loan Documents. Every provision for the benefit of
the Lender contained in this Guaranty shall apply to the guaranty of performance
given in this paragraph.
(e) All payments hereunder shall be made free and clear of, and without
reduction by reason of, any Taxes which are now or may hereafter be imposed,
levied or assessed by any country, political subdivision or taxing authority,
all of which will be for the account of and paid by the Guarantor. If for any
reason, any such reduction is made or any Taxes are paid by the Lender, the
Guarantor will pay to the Lender such additional amounts as may be necessary to
ensure that the Lender receive the same net amount (after payment of all Taxes,
if applicable) which it would have received had no reduction been made or Taxes
paid.
(f) If the obligations of the Guarantor under this Guaranty would
otherwise be held or determined in any Insolvency Proceeding to be avoidable,
invalid or unenforceable on account of the amount of Guarantor's liability under
this Guaranty, then, notwithstanding any other provision of this Guaranty to the
contrary, the amount of such liability shall be automatically limited and
reduced to the maximum amount which does not result in such invalidity,
unenforceability, or avoidability as determined in such Insolvency Proceeding
(such highest amount determined hereunder being the "Guarantor's Maximum
Liability"), without any further action by Guarantor or the Lender. This
Paragraph 2(f) is intended solely to preserve the rights of the Lender to the
maximum extent not subject to avoidance under applicable law, and neither the
Guarantor nor any other Person shall have any right or claim under this
Paragraph 2(f) with respect to the Guarantor's Maximum Liability, except to the
extent necessary so that the obligations of the Guarantor hereunder shall not be
rendered voidable under applicable law.
3. The Guarantor agrees that upon the failure of the Borrower to pay all
or any portion of the Guaranteed Obligations when due (whether by demand, stated
maturity, acceleration or otherwise), the Guarantor will pay, or cause to be
paid, to the Lender, in cash, all Guaranteed Obligations then due, without
defalcation or offset of any kind, without the Lender being required to pursue
any of its rights against the Borrower or against any other Person, including
any other guarantor, and without being required to liquidate or realize upon any
of the Collateral. In the event of the commencement of a case by or against the
Borrower under the Bankruptcy Code, the Lender shall have the right, as to the
Guarantor, to declare all Guaranteed Obligations immediately due and payable,
whether or not the Lender is able to accelerate the same as against the
Borrower. In any right of action accruing to the Lender under this Guaranty, the
Lender may elect to proceed against (i) the Guarantor only, without first having
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commenced any action against the Borrower, any other guarantor or surety or any
collateral security, (ii) the Guarantor together with the Borrower, or (iii) the
Borrower and then the Guarantor, it being specifically understood and agreed
that the Lender is not required to enforce any remedies against the Borrower,
any other party liable to the Lender for satisfaction of the Guaranteed
Obligations or any collateral securing satisfaction of the Guaranteed
Obligations, nor is the Lender required to enforce or resort to any remedies
with respect to any lien, security interest or encumbrance granted to the Lender
as security for satisfaction of the Guaranteed Obligations.
4. The Guarantor hereby expressly waives any and all notice with respect
to (i) acceptance of this Guaranty by the Lender and the Lender's intention to
act in reliance upon this Guaranty, (ii) the incurring of the Guaranteed
Obligations by the Borrower and the amount, terms and conditions thereof,
including without limitation, all future advances made by the Lender to the
Borrower from the date hereof, (iii) any past or future defaults in connection
with the Guaranteed Obligations, (iv) presentment, demand, dishonor or protest
of any kind, (v) failure of any other guarantor or surety to satisfy the
Guaranteed Obligations, and (vi) any adverse change in the Borrower's condition
or of any other fact which may materially increase the risk of the Guarantor.
5. The Guarantor expressly agrees that the Lender may, without notice to
the Guarantor, deal with the Guaranteed Obligations and any collateral security
in connection therewith in such manner as the Lender may deem advisable. The
Guarantor further agrees that the Lender may take, or fail to take, from time to
time, with or without notice to the Guarantor, any action of any nature
whatsoever with respect to the Borrower, the Guaranteed Obligations or any
collateral securing satisfaction of the Guaranteed Obligations, and the
Guarantor specifically agrees that the Lender may do any of the following
without notice to the Guarantor and without in any way affecting the validity or
enforceability of this Guaranty: (i) renew, amend, waive, release, surrender,
exchange, compromise or settle any of the Guaranteed Obligations or any of the
terms of the Guaranteed Obligations, including without limitation, the time for
payment of the Guaranteed Obligations, (ii) renew, amend, release or waive any
of the provisions of the Guaranteed Obligations, including, without limitation,
any terms relating to the interest rate charged to the Borrower, (iii) release,
surrender, exchange, substitute or deal with, or abstain from taking advantage
of or realizing upon any surety or guarantor or any lien, security interest or
encumbrance in favor of the Lender or any other collateral held by the Lender as
security for the satisfaction of the Guaranteed Obligations, (iv) settle or
compromise any claims of the Lender against the Borrower or any other guarantor
or surety, or (v) make any other renewals, extensions, modifications,
amendments, postponements, compromises, indulgences, waivers, surrenders,
exchanges and releases of any kind or nature with respect to parties, collateral
or documents in any way connected with or related to the Guaranteed Obligations.
The Guarantor further agrees that this Guaranty remains fully enforceable
irrespective of any defenses which the Borrower may assert against the
Guaranteed Obligations, including, but not limited to, failure of consideration,
breach of warranty, statute of limitations, accord and satisfaction and usury.
6. The Guarantor further waives (i) any impairment of any collateral
securing satisfaction of the Guaranteed Obligations, including, without
limitation, failure to perfect, or to maintain the perfection of, any lien or
security interest in such collateral, (ii) any right to require the marshaling
of the Borrower's assets, (iii) all offsets, counterclaims or other claims
against the Lender, (iv) the benefit of all laws now or hereafter in effect in
any way limiting or restricting the liability of the Guarantor hereunder, (v)
all defenses or circumstances whatsoever to the Guarantor's liability hereunder,
including, without limitation, those which might constitute a legal or equitable
discharge of a guarantor or surety, but specifically excluding the defense of
actual payment, (vi) all right to stay of execution and exemption of property in
any action to enforce the liability of the Guarantor hereunder, and (vii) any
act or omission by the Lender which changes the scope of the Guarantor's risk.
GUARANTOR ACKNOWLEDGES THAT THE PROVISIONS OF THIS PARAGRAPH CONSTITUTE A WAIVER
BY GUARANTOR OF DEFENSES WHICH GUARANTOR MAY OTHERWISE HAVE BEEN ABLE TO ASSERT
AGAINST THE OBLIGATIONS OF GUARANTOR UNDER THIS GUARANTY
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AND THEREFORE GUARANTOR WILL NOT BE ABLE TO ASSERT SUCH DEFENSES AGAINST
PERFORMANCE OF ITS OBLIGATIONS UNDER THIS GUARANTY.
7. In addition to all other liability of the Guarantor hereunder, the
Guarantor agrees to pay on demand all costs and reasonable expenses (including
reasonable counsel fees) which may be incurred by the Lender in the enforcement
of the Guaranteed Obligations or the liability of the Guarantor hereunder,
including, without limitation, all costs and reasonable expenses of the Lender
in connection with or incident to actions taken by or on behalf of the Lender in
connection with a case under the Bankruptcy Code or any similar law now or
hereafter in effect. No delay in making demand on the Guarantor for performance
of the Guarantor's obligations under this Guaranty shall prejudice the right of
the Lender to enforce such performance or payment.
8. Until the Guaranteed Obligations have been fully and indefeasibly paid
and satisfied in full, the Guarantor (i) waives any legal or equitable rights of
subrogation, reimbursement, indemnity, exoneration, contribution or any other
claim which the Guarantor may now or hereafter have against the Borrower or any
other person directly or contingently liable for the Guaranteed Obligations or
against or with respect to the Borrower's assets or properties (including,
without limitation, property securing the Guaranteed Obligations), and (ii) may
not exercise any right to enforce any remedy the Guarantor now has or may
hereafter have against the Borrower or any other guarantor of the Guaranteed
Obligations.
9. As security for prompt and full satisfaction of the Guarantor's
obligations hereunder, the Guarantor hereby pledges to the Lender, and grants to
the Lender a security interest in and a right of set-off against all monies,
deposits and other property of any kind owned by the Guarantor or in which the
Guarantor now or hereafter has an interest and which shall be in the possession
of or control of the Lender at any time for any reason whatsoever, including,
without limitation, all deposit accounts (general or special, time or demand,
provisional or final) at any time maintained by the Guarantor with the Lender;
such lien and security interest shall be independent of any right of set-off
which the Lender may have, and in the event the Guarantor shall not pay to the
Lender any amounts when due hereunder, the Lender may set-off and apply against
the Guarantor's liabilities hereunder all amounts owed by the Lender to the
Guarantor which are or may be in the possession of the Lender.
10. (a) Guarantor represents and warrants to the Lender as follows:
(i) Guarantor (A) is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Pennsylvania
and has been duly qualified to conduct business and is in good standing in
each other jurisdiction where its ownership or lease of property or the
conduct of its business requires such qualification; (B) has the requisite
corporate power and authority, as applicable, and the legal right to own,
pledge, mortgage or otherwise encumber and operate its properties, to
lease the property it operates under lease and to conduct its business as
now, heretofore and proposed to be conducted; (C) has all licenses,
permits, consents or approvals from or by, and has made all filings with,
and has given all notices to, all Authorities having jurisdiction, to the
extent required for such ownership, operation and conduct; (D) is in
compliance with its articles of incorporation and bylaws; and (E) is in
compliance with all applicable provisions of law;
(ii) Guarantor has full power, authority and legal right to enter
into this Guaranty and the other Loan Documents to which it is a party.
The execution, delivery and performance by Guarantor of this Guaranty and
such other Loan Documents to which it is a party: (A) have been duly
authorized by all necessary action on the part of such Guarantor; (B) are
not in contravention of the terms of Guarantor's articles of incorporation
and bylaws or of any indenture, agreement or undertaking to which
Guarantor is a party or by which Guarantor or any of its property is
bound; (C) do not and
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will not require any consent of, registration with or approval of any
Authority or the consent of any other Person that has not been obtained or
made, as applicable; (D) do not and will not contravene any contractual or
governmental restriction to which Guarantor or any of its property may be
subject; and (E) do not and will not, except as contemplated herein,
result in the imposition of any Lien upon any property of Guarantor under
any existing indenture, mortgage, deed of trust, loan or credit agreement
or other material agreement or instrument to which Guarantor is a party or
by which Guarantor or any of its property may be bound or affected.
Guarantor has the full corporate power and authority to own or lease and
operate its property and to conduct the business in which it is currently
engaged and in which it proposes to engage;
(iii) This Guaranty and all of the other Loan Documents to which
Guarantor is a party have been duly executed and delivered by Guarantor,
are the legal, valid and binding obligations of Guarantor and are
enforceable against Guarantor in accordance with their terms;
(iv) The execution and delivery by Guarantor of this Guaranty and
all of the other Loan Documents to which it is a party and the performance
by Guarantor of its obligations hereunder and thereunder are not in
contravention of any order applicable to Guarantor or, to Guarantor's best
knowledge, any laws, regulations or ordinances applicable to Guarantor.
Guarantor is in compliance with all applicable laws, orders, regulations
and ordinances of all federal, foreign, state and local governmental
authorities relating to the business operations and the property of
Guarantor;
(v) This Guaranty and the representations and warranties of
Guarantor in any other Loan Document delivered or to be delivered by
Guarantor, do not and will not contain any untrue statement of a material
fact or omit a material fact necessary to make the statements contained
herein or therein, in light of the circumstances under which they were
made, not misleading; and
(vi) Guarantor has adequate means to obtain from the Borrower on a
continuing basis information concerning the financial condition of the
Borrower, and Guarantor is not relying on the Lender to provide such
information to Guarantor now or in the future.
(b) All representations and warranties contained in this Guaranty or
any of the other Loan Documents to which Guarantor is a party shall survive the
execution and delivery of this Guaranty and the termination hereof.
11. Guarantor covenants that until this Guaranty has been terminated as
provided for in Paragraph 14 below,
(i) Guarantor will: (A) do or cause to be done all things necessary
to preserve and keep in full force and effect its lawful existence as a
corporation; and (B) continue to conduct its business substantially as now
conducted or as otherwise permitted hereunder;
(ii) Guarantor will comply in all material respects with all
federal, state, local and foreign laws and regulations applicable to it;
(iii) Except with the prior written consent of the Lender, such
consent not to be unreasonably withheld, Guarantor will not: (A) merge or
consolidate, or otherwise combine, with any Person, (B) amend its articles
of incorporation and bylaws in any
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material respect, (C) sell, transfer, convey, assign or otherwise dispose
of (other than to the Borrower) any of the Collateral owned by it other
than in the ordinary course of business, or any of its other assets if
Guarantor's obligation or ability to pay the Guaranteed Obligations could
reasonably be expected to be adversely affected by the proposed action,
(D) execute any agreements or contracts other than those entered into in
the ordinary course of business and not otherwise prohibited by this
Guaranty or the other Loan Documents, (E) change its fiscal year, or (F)
accept or retain any loans, dividends or other payments of any kind from
the Borrower in violation of the terms of the Credit Agreement or any of
the other Loan Documents. The Lender's consent shall be deemed to have
been reasonably withheld if the Lender has reasonably determined that the
Guarantor's obligation or ability to pay the Guaranteed Obligations would
be adversely affected by the proposed action;
(iv) Guarantor will not enter into any indenture, agreement,
instruments or other arrangement which, (i) directly or indirectly,
prohibits or restrains, or has the effect of prohibiting or restraining,
or imposes materially adverse conditions upon, the incurrence of the
obligations of Guarantor hereunder, or (ii) contains any provisions which
would be violated or breached by the performance by Guarantor of its
obligations hereunder;
(v) Guarantor will open and maintain its primary operating and
deposit accounts with the Lender; and
(vi) The provisions of Articles VI and VII of the Credit Agreement
are incorporated herein by reference (together with all related
definitions and cross-references), insofar as such provisions relate to
Guarantor as a Loan Party thereunder, and Guarantor hereby covenants to
the Lender as provided therein. Guarantor will perform, comply with and be
bound by all of the terms and conditions set forth in the Credit Agreement
which relate to Guarantor including, without limitation, delivery of
financial statements, with such terms and conditions being incorporated in
this Guaranty by reference. GUARANTOR FURTHER COVENANTS AND AGREES THAT IT
WILL NOT DIRECTLY OR INDIRECTLY TAKE OR AGREE TO TAKE, OR OMIT OR AGREE TO
OMIT TO TAKE, OR CONSENT TO THE TAKING OF, ANY ACTION WHICH WILL RESULT IN
THE BORROWER BEING IN VIOLATION OF ANY OF THE PROVISIONS OF THE GUARANTEED
OBLIGATIONS;
12. If any one or more of the provisions contained in this Guaranty shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such holding shall not affect any other provision of this Guaranty, but this
Guaranty shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
13. No failure or delay on the part of the Lender to exercise any right,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof, or the exercise of any other right, power
or privilege. Failure by the Lender to insist upon strict performance hereof
shall not constitute a relinquishment of its right to demand strict performance
at another time. If the Lender retains counsel to enforce the provisions of this
Guaranty, Guarantor agrees to reimburse the Lender upon demand for the expenses,
costs and reasonable fees of such counsel incurred in connection therewith.
14. This Guaranty shall continue in force and effect until the full, final
and irrevocable payment of the Guaranteed Obligations and termination of any
commitment by the Lender to make any further loans or advances to the Borrower.
If the Lender receives any payment or payments 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 a trustee, receiver, or
any other party under the
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Bankruptcy Code or any other state or federal law, common law or equitable
doctrine, then to the extent of any sum not finally retained by the Lender,
Guarantor's obligations to the Lender shall be reinstated and this Guaranty, and
any security therefor, shall remain in full force and effect (or be reinstated)
until payment shall have been made to the Lender, notwithstanding termination of
this Guaranty or the cancellation of any note, instrument or agreement
evidencing the Guaranteed Obligations, and such payment shall be due on demand
by the Lender. If any action or proceeding seeking such repayment is pending or,
in the Lender's sole judgment, threatened, this Guaranty and any security
therefor shall remain in full force and effect notwithstanding that the Borrower
may not be obligated to the Lender.
15. This Guaranty is freely assignable and transferable by the Lender upon
the assignment and transfer of the Guaranteed Obligations. The duties and
obligations of Guarantor may not be delegated or transferred by Guarantor
without the prior written consent of the Lender. This Guaranty shall bind
Guarantor and its permitted successors and assigns and shall inure to the
benefit of Lender and its successors and assigns. All references herein to the
Borrower shall be deemed to include its successors and assigns including,
without limitation, a receiver, trustee or debtor in possession of or for
Borrower. This Guaranty is subject to modification only by a writing signed by
the Lender and Guarantor and cannot be changed orally.
16. Guarantor consents to the commencement and maintenance of any action
or proceeding against it in any court within the Commonwealth of Pennsylvania or
in the United States District Court for the Western District of Pennsylvania,
and Guarantor further consents to service of process in any such action by the
mailing of copies of such process to Guarantor at the address specified in this
Guaranty for delivery of notice to Guarantor. Guarantor agrees that the courts
of the Commonwealth of Pennsylvania and the United States District Court for the
Western District of Pennsylvania shall have exclusive jurisdiction for any
action or proceeding commenced by or through it with respect to this Guaranty
and hereby waives any claim that Allegheny County, Pennsylvania is an
inconvenient forum and that any action or proceeding arising out of or relating
to this Guaranty and commenced in any state or federal courts sitting in
Allegheny County, Pennsylvania lacks proper venue.
17. Guarantor has unconditionally delivered this Guaranty, and failure of
any other party to sign any suretyship agreement or other agreement shall not
discharge the liability of Guarantor. The unconditional liability of Guarantor
applies whether Guarantor is liable for the entire amount of the Guaranteed
Obligations or for only a portion thereof.
18. This Guaranty and the other Loan Documents to which Guarantor is a
party embody the entire agreement between Guarantor and the Lender with respect
to the subject matter hereof and supersedes any and all prior or contemporaneous
oral or written understandings, negotiations or communications on behalf of such
parties. No course of dealing, course of performance or trade usage, and no
parol evidence of any nature shall be used to supplement or modify any of the
terms hereof.
19. This Guaranty is intended to take effect as a document under seal and
shall be deemed made under and governed by, and construed and enforced in
accordance with, the laws of the Commonwealth of Pennsylvania in all respects
without giving effect to its conflict of laws principles, including matters of
construction, performance and enforcement except to the extent the procedural
laws of another jurisdiction shall apply to any action commenced by the Lender
with respect to the remedies of the Lender under this Guaranty or otherwise.
Guarantor acknowledges that the agreement to be governed by the laws of the
Commonwealth of Pennsylvania is not for the purpose of avoiding the law or
public policy of another jurisdiction, but rather is a negotiated term in this
commercial transaction and is based upon a reasonable relation to the
Commonwealth of Pennsylvania.
20. Any notice or consent required or permitted by this Guaranty shall be
in writing and shall be delivered in person, by facsimile transmission, by
certified mail, postage prepaid, return receipt requested or by telegraph, to
the addresses set forth on Schedule One attached hereto, unless such address
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is changed by written notice hereunder. All notices shall be deemed effective
when delivered in person, on the day of facsimile transmission (subject to
confirmation), when received by registered or certified mail or when refused or
unclaimed by the addressee, whichever the case may be.
21. GUARANTOR ACKNOWLEDGES THAT, PRIOR TO SIGNING THIS GUARANTY, GUARANTOR
WAS GIVEN AN OPPORTUNITY TO READ IT, CAREFULLY EVALUATE IT AND ASK QUESTIONS
ABOUT IT. GUARANTOR FURTHER ACKNOWLEDGES THAT GUARANTOR WAS GIVEN THE RIGHT AND
OPPORTUNITY TO HAVE THIS GUARANTY REVIEWED BY AN ATTORNEY OF ITS CHOOSING AND
THE LENDER WAS PREPARED TO GIVE GUARANTOR A REASONABLE PERIOD OF TIME TO DO SO
IF GUARANTOR SO DESIRED.
22. THE LENDER AND GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO DEMAND A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR
THE TRANSACTIONS CONTEMPLATED HEREIN. FURTHER, GUARANTOR HEREBY CERTIFIES THAT
NO REPRESENTATIVE OF THE LENDER OR THE LENDER'S COUNSEL HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT, IN THE EVENT OF SUCH LITIGATION, THE LENDER WOULD
NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. GUARANTOR
FURTHER ACKNOWLEDGES THAT THE LENDER HAS BEEN OR WILL BE INDUCED TO MAKE THE
LOAN BY, INTER ALIA, THE PROVISIONS OF THIS PARAGRAPH.
23. The following paragraph sets forth a warrant of authority for an
attorney to confess judgment against Guarantor. In granting this warrant to
confess judgment against Guarantor, Guarantor hereby knowingly, intentionally,
voluntarily and unconditionally waives any and all rights Guarantor has or may
have to prior notice and an opportunity for hearing:
THE GUARANTOR UNCONDITIONALLY AND IRREVOCABLY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OR ANY PROTHONOTARY, CLERK OF COURT OR COURT OF RECORD, AS ATTORNEY FOR
GUARANTOR, TO APPEAR FOR GUARANTOR IN SUCH COURT AT ANY TIME AFTER THE
GUARANTOR'S FAILURE TO PAY ANY OF THE GUARANTEED OBLIGATIONS WHEN DUE AND
CONFESS JUDGMENT AGAINST GUARANTOR IN FAVOR OF THE LENDER, AND ITS SUCCESSORS
AND ASSIGNS, FOR ALL OR ANY PORTION OF THE OUTSTANDING GUARANTEED OBLIGATIONS,
TOGETHER WITH UNPAID INTEREST, COSTS OF SUIT AND ATTORNEYS' FEES ADDED FOR
COLLECTION IN AN AMOUNT EQUAL TO THE GREATER OF TEN PERCENT (10%) OF THE UNPAID
PRINCIPAL BALANCE OF THE GUARANTEED OBLIGATIONS OR $5,000, OR AS OTHERWISE
PERMITTED BY LAW. GUARANTOR ALSO RELEASES ALL ERRORS, AND TO THE EXTENT
PERMITTED BY LAW, WAIVES AND RELEASES ALL RELIEF FROM ANY AND ALL APPRAISEMENT,
STAY OR EXEMPTION LAW OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. IF A COPY
OF THIS GUARANTY, VERIFIED BY AFFIDAVIT OF THE LENDER OR SOMEONE ON BEHALF OF
THE LENDER, SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO
FILE AN ORIGINAL OF THIS GUARANTY AS A WARRANT OF ATTORNEY. THE AUTHORITY AND
POWER TO APPEAR FOR AND ENTER JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED
BY THE INITIAL EXERCISE THEREOF OR BY ANY IMPERFECT EXERCISE THEREOF AND SHALL
NOT BE EXTINGUISHED BY ANY JUDGMENT ENTERED PURSUANT THERETO; THE AUTHORITY AND
POWER MAY BE EXERCISED ON ONE OR MORE OCCASIONS, FROM TIME TO TIME, IN THE SAME
OR DIFFERENT JURISDICTIONS, AS OFTEN AS THE LENDER SHALL DEEM NECESSARY OR
DESIRABLE, FOR ALL OF WHICH THIS GUARANTY OR A VERIFIED COPY HEREOF SHALL BE A
SUFFICIENT WARRANT. TO THE EXTENT PERMITTED BY
8
LAW, INTEREST SHALL ACCRUE ON ANY UNPAID JUDGMENT AT THE RATE OF INTEREST WHICH
WOULD ACCRUE ON THE STANDBY TERM LOAN UPON THE OCCURRENCE OF AN EVENT OF DEFAULT
UNDER THE CREDIT AGREEMENT.
IN WITNESS WHEREOF, the Guarantor, with the intent to be legally bound,
has executed this Guaranty and Suretyship Agreement the day and year first above
written.
ATTEST: XXXXXXXXX CEMENT & SUPPLY
CORPORATION
/s/ Xxxx X. Xxxxxx By:/s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------- ---------------------------
Secretary Title:
------------------------
(CORP. SEAL)
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SCHEDULE ONE
NOTICES
If to the Guarantor:
Xxxxxxxxx Cement & Supply Corporation
______________________________
______________________________
Attn: ________________________
Telecopy No.: (___) ___-____
If to the Lender: With copy to:
Citizens Bank of Pennsylvania Xxxxx X. Xxxxxxx, Esquire
525 Xxxxxxx Penn Place Xxxx Xxxxx, LLC
Xxxxxxxxxx, XX 0000000 00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Attn: Xxxxx Xxxxxx, Vice President Xxxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000 Telecopy No.: (000) 000-0000
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