GUARANTY
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GUARANTY, dated as of March 30, 2000, between FIRST AVIATION SERVICES,
INC., a Delaware corporation with an office at 00 Xxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000 ("Guarantor") and XXXXXX UNITED BANK, a state banking
corporation with an office located at 00 Xxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx
00000 (the "Lender").
Recitals
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WHEREAS, AEROSPACE PRODUCTS INTERNATIONAL, INC., a Delaware corporation (the
"Borrower") and Lender have entered into a certain Commercial Revolving Loan and
Security Agreement dated as of March 30, 2000 (as it may be amended or modified
further from time to time, the "Loan Agreement"), providing, subject to the
terms and conditions thereof, for extensions of credit to be made by the Lender
to the Borrower for the benefit of the Borrower and the Guarantor; and
WHEREAS, it is required by the Loan Agreement, that the Guarantor execute and
deliver this Guaranty whereby the Guarantor shall guarantee the payment when due
of all principal, interest and other amounts that shall be at any time payable
by the Borrower under the Loan Agreement, the Note, and the other Loan
Documents; and
WHEREAS, in consideration of the financial and other support that the Borrower
has provided, and such financial and other support as the Borrower may in the
future provide, to Guarantor, whether directly or indirectly, and in order to
induce the Lender to enter into the Loan Agreement, the Guarantor is willing to
guarantee the obligations of the Borrower under the Loan Agreement, the Note,
and the other Loan Documents.
Definitions
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Unless otherwise indicated, capitalized terms used herein shall have the
respective meanings ascribed to such terms in the Loan Agreement. As used
herein, the following words and terms shall have the following meanings:
(a) "Contingent Liability" shall mean any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise becomes, or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss), the debt,
obligation or other liability of any other Person (other than by endorsements of
negotiable instruments in the course of collection), or guarantees the payment
of dividends or other distributions upon the shares of any other Person. The
amount of the obligor's obligation under any Contingent Liability shall be
deemed to be the outstanding principal amount (or maximum permitted principal
amount, if larger) of the debt, obligation or other liability guaranteed thereby
(subject to any limitation set forth therein).
(b) "Material Adverse Effect" means a material adverse effect on (i) the
business, operations, property or condition (financial or otherwise) of the
Guarantor taken as a whole, (ii) the ability of the Guarantor to perform its
obligations under this Guaranty or any of the other Loan Documents, or (iii) the
validity or enforceability of this Guaranty or any of the other Loan Documents
or the rights or remedies of the Bank.
(c) "Leverage Ratio" for any period shall mean the ratio of (i) Total
Liabilities to (ii) Tangible Net Worth.
(d) "Tangible Net Worth" shall mean, as at any date the sum of the Capital
Stock and paid-in surplus, plus retained earnings (or minus accumulated deficit)
of the Guarantor and its Subsidiaries on a consolidated basis minus intangible
assets (including, without limitation, franchises, patents and patent
applications, trademarks and brand names, goodwill, research and development
expenses, unamortized debt discount and expense, and all write-ups in the book
value of any asset).
(e) "Total Liabilities" shall mean at any time of determination, amount
equal to all liabilities of the Guarantor and its Subsidiaries determined on a
consolidated basis in accordance with GAAP.
Agreement
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In consideration of the Recitals, which are incorporated by reference and
the representations, covenants and warranties contained herein, the parties,
intending to be bound legally, agree as follows:
1. Guaranty. The Guarantor unconditionally guaranties the punctual payment
when due, whether at stated maturity, by acceleration or otherwise, of the
obligations of the Borrower under the Note and under any amendment,
modification, renewal, extension, substitution or replacement thereof or
thereto, whether for principal, interest, fees, expenses or otherwise and all
expenses incurred by the Lender in enforcing any of its rights under this
Guaranty (such obligations being referred to collectively as the "Obligations").
2. Guaranty Absolute. (a) The Guarantor guaranties that the Obligations
will be paid strictly in accordance with the terms thereof regardless of any
law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Lender with respect thereto.
The liability of the Guarantor under this Guaranty shall be absolute and
unconditional irrespective of:
(i) any lack of validity or enforceability of the Obligations or any
other agreement or instrument relating thereto;
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(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to departure from the Obligations; or
(iii) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any other
guaranty, for any of the Obligations.
(b) This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Obligations is rescinded
or must otherwise be returned by the Lender due to the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as though such payment had not
been made.
3. Subrogation; Contribution. The Guarantor will not exercise any rights
which it may acquire by way of subrogation under this Guaranty, by any payment
made hereunder or otherwise, until all the Obligations shall have been paid in
full. If any amount shall be paid to the Guarantor on account of such
subrogation rights or by way of contribution or indemnification at any time when
all the Obligations shall not have been paid in full, such amount shall be held
in trust for the benefit of the Lender and shall forthwith be paid to the Lender
to be credited and applied upon the Obligations, whether matured or unmatured,
in accordance with the terms of the Obligations. If the Guarantor shall make
payment to the Lender of all or any part of the Obligations and all the
Obligations shall be paid in full, the Lender will, at the Guarantor's request,
execute and deliver to the Guarantor appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer by
subrogation to the Guarantor of an interest in the Obligations resulting from
such payment by the Guarantor.
4. Affirmative Covenants. The Guarantor covenants and agrees that so long
as this Guaranty shall remain in effect and so long as the Obligations shall
remain unpaid, the Guarantor shall:
4.1 Access to Records and Premises. Keep adequate records and books of
account, in which complete entries will be made in accordance with GAAP
consistently applied with prior years, reflecting all financial transactions of
the Guarantor. At any reasonable time during normal business hours and upon
reasonable prior written notice, from time to time, permit the Lender or any
agents or representatives thereof, for the purpose of ascertaining whether or
not each and every provision hereof and of any related documents, instrument or
document is being performed and to make reasonable examinations and make
reasonable number of copies of and abstracts from the records and books of
account of, and visit, examine and inspect the properties of, the Lender and to
discuss the affairs, finances and accounts of the Lender with the President, the
Directors and the chief financial officer or the Lender's management, including,
without limitation, permitting the Lender or its agents or representatives to
conduct periodic audits of the Guarantor at the Guarantor's reasonable expense,
as often as the Lender may reasonably request, but not, in any event, more than
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once every six (6) months. The Lender agrees to exercise its rights under this
Section 4.1 in a manner which will not unreasonably interfere with the business
of the Guarantor.
4.2. Financial Statements; Reports. Furnish to the Lender:
a. Monthly, unaudited, internally prepared compilation of
consolidated results of the Guarantor and its Subsidiaries, to be
submitted on or before the twentieth (20th) day of every calendar
month;
b. Annual budget to be submitted within thirty (30) days following
Guarantor's fiscal year end;
c. Quarterly Covenant Compliance Certificates, to be submitted
within thirty (30) days following April 30, July 31, October 30
and January 31;
d. Copies of Guarantor's Form 10-K and 10-Q to be submitted within
fifteen (15) days of filing with the Securities and Exchange
Commission.
4.3. Notice Requirements. Furnish to Lender:
(a) Within five (5) days of a formal proposal made to the Board
of Directors of the Guarantor, notification of any proposed or pending
change in the senior executive management or corporate structure of
the Guarantor;
(b) Written notification within seven (7) Business Days of any
Material Adverse Change in the financial condition of the Guarantor;
and
(c) Written notification within ten (10) Business Days of
becoming aware of any Event of Default, or any occurrence but for the
giving of notice on the passage of time would constitute an Event of
Default.
4.4. Primary Bank. Maintain its primary operating accounts with the Lender.
4.5. ERISA Reports. Comply in all material respects with the provisions of
ERISA applicable to any Plan maintained by the Guarantor and furnish
to the Lender as soon as possible, and in any event within ten (10)
days after the Guarantor knows or has reason to know that any
Reportable Event with respect to any Plan has occurred, a statement of
the chief financial officer of the Guarantor setting forth details as
to such Reportable Event and the action which the Guarantor proposes
to take with respect thereto.
4.6. Litigation. Furnish to Lender within thirty (30) days after the
commencement thereof, notice of all actions, suits and proceedings
before any court or governmental
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department, commission, board, bureau, agency or instrumentality,
domestic or foreign, the subject matter of which may result in an
adverse decision affecting the Guarantor in an amount which would have
a Material Adverse Effect.
5. Representations and Warranties. The Guarantor represents and warrants to
the Lender as follows:
(a) The Guarantor is a corporation duly organized, validly existing and in
good standing under the laws of the state indicated at the beginning of this
Guaranty.
(b) The Guarantor is qualified as a foreign corporation in each state in
which the character of its properties or the nature of its business requires.
o (c) The execution, delivery and performance by the Guarantor of this
Guaranty has been duly authorized by all necessary corporate action and does not
and will not:
(i) require any consent or approval of the stockholders of the
Guarantor;
(ii) contravene the Guarantor's certificate of incorporation or
by-laws;
(iii) violate any provision of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award presently in effect having
applicability to the Guarantor;
(iv) result in a breach of or constitute a default under any indenture
or loan or credit agreement or any other material agreement, lease, document or
instrument to which the Guarantor is a party or by which it or its respective
properties may be bound or affected;
(v) result in or require the creation or imposition of any mortgage,
deed of trust, pledge, lien, security interest or other charge or encumbrance of
any nature (other than arising under any document delivered to the Lender in
connection herewith) upon or with respect to any of the properties now owned or
hereafter acquired by the Guarantor; or
(vi) render the Guarantor "insolvent" within the meaning of such term
as defined in ss. 101 of Title 11 of the United States Code or ss. 2 of either
the Uniform Fraudulent Transfer Act or the Uniform Fraudulent Conveyance Act, as
each is amended from time to time
(d) The Guarantor is not in default under any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award having applicability
to the Guarantor or any indenture, agreement, lease, document or instrument to
which the Guarantor is a party or by which it or its respective properties may
be bound or affected;
(e) No authorization or approval or other action by, and no notice to or
filing with, any
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governmental authority or regulatory body is required for the due execution,
delivery and performance by the Guarantor of this Guaranty.
(f) This Guaranty is the legal, valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms.
(h) There is no pending or threatened action or proceeding affecting the
Guarantor before any court, governmental agency or arbitrator which may
materially and adversely affect the financial condition or operations of the
Guarantor.
(i) The Guarantor has filed all federal, state and municipal tax returns
required to be filed and has paid all taxes shown thereon to be due, including
interest and penalties, or provided adequate reserves for payment thereof.
(j) No information, exhibit or report furnished by the Guarantor to the
Lender in connection with the negotiation of this Guaranty, or any other
document executed by the Guarantor, contains or contained any material
misstatement of fact or omitted to state a material fact necessary to make the
statements contained therein not misleading.
6. Covenants. The Guarantor covenants and agrees that so long as this
Guaranty shall remain in effect and so long as the Obligations shall remain
unpaid, the Guarantor will not, directly or indirectly, without the written
consent of the Lender, which in the case of Section 6.2 and 6.5, shall not be
unreasonably withheld.
6.1. Leverage Ratio. Permit the ratio of its Tangible Net Worth to its
Total Liabilities to be less than 1.25 to 1.0 for any fiscal quarter of the
Guarantor, measured quarterly.
6.2. Borrowing. Create, incur, assume or suffer to exist any liability for
Indebtedness, except Indebtedness under the Note and Loan Documents.
6.3. Merger and Acquisition or Sale of Property. Consolidate with, be
acquired by, or merge into or with any Person, or sell, lease or otherwise
dispose of all or substantially all of its properties or any of its capital
stock, or acquire all or substantially all of the stock or property of any
person, or permit any Subsidiary to do so.
6.4. Business Changes. Materially change the nature of its business as
conducted by the Guarantor and its Subsidiaries taken as a whole on the date
hereof, or alter or modify its corporate name, structure or status (including,
without limitation, its tax status) or alter its accounting principles,
treatment or recording practices, except as permitted or required by GAAP, the
SEC or NASDAQ or permit any Subsidiary so to do.
6.5. Contingent Liabilities. Assume, guaranty, endorse or otherwise become
liable for any Indebtedness or Contingent Liability of any Person, except as
required by this Agreement and
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by the endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business.
6.6. Investment, Loan, Guaranties, Revolving Loan. Intentionally Deleted.
6.7. Change of Control. Permit a Change in Control of the Borrower.
6.8. Change Name or Location. Change the Borrower's names or conduct the
Borrower's businesses under any trade name or style other than as hereinabove
set forth or change its chief executive office, place of business or the present
locations of its business assets or records relating thereto from the address
set forth in the first paragraph of this Agreement.
6.9. Certificate of Incorporation and By-laws. Amend or otherwise modify
its certificate of incorporation or by-laws, or permit any Subsidiary so to do,
in any way which would adversely and materially affect the interest of the
Lender under any of the Loan Documents or the obligations of the Guarantor or
Borrower under the Loan Documents.
7. Continuing Guaranty; Transfer of Note. This Guaranty is a continuing
guaranty and shall:
(a) remain in full force and effect until payment in full of the
Obligations and all other amounts payable under this Guaranty;
(b) be binding upon the Guarantor, its successors and assigns; and
(c) inure to the benefit of and be enforceable by the Lender, and its
respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c), the Lender may
assign or otherwise transfer the Note or any of the Obligations held by it to
any other person or entity, and such other person or entity shall thereupon
become vested with all the rights in respect thereof granted to the Lender
herein or otherwise.
8. Amendments. No amendment or waiver of any provision of this Guaranty and
no consent to any departure by the Guarantor therefrom shall in any event be
effective unless the same shall be in writing and signed by the Lender.
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9. Addresses for Notices. Any notice provided for under this Agreement
shall be in writing and shall be effective upon receipt or upon failure of the
addressee to accept delivery if and when mailed by registered or certified mail,
postage prepaid, or express parcel service, addressed to such party at such
address. Any party and any representative designated below may, by notice to the
other in the manner provided herein, change its address for receiving such
notices. All notices and consents on behalf of any party hereto shall be signed
by such party and shall be sent:
If to the Guarantor:
FIRST AVIATION SERVICES, INC.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
If to the Lender:
XXXXXX UNITED BANK
00 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Vice President
10. Severability. If any clause or provision of this Guaranty is determined
to be illegal, invalid or unenforceable under any present or future law by the
final judgment of a court of competent jurisdiction, the remainder of this
Guaranty will not be affected thereby.
11. Headings. Section headings are for convenience of reference only, and
shall not affect the interpretation or meaning of any provision of this
Guaranty.
12. Entire Agreement. This Guaranty constitutes the entire agreement
between the parties, and supersedes all prior discussions and negotiations
relating to the subject matter hereof. The terms of this Guaranty cannot be
changed or terminated orally, and shall be deemed effective as of the date
accepted by the Lender by its duly authorized officer. This Guaranty may not be
amended or terminated except by a writing signed by the party against whom
enforcement thereof is sought.
13. Successors and Assigns. This Guaranty shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that the Guarantor shall not assign this Guaranty, or any
related document, or any of its rights without the prior written consent of the
Lender.
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14. Waiver; Failure or Delay not a Waiver. The Guarantor waives promptness,
diligence, notice of acceptance, notice or presentment, demand or protest and
any other notice with respect to any of the Obligations and this Guaranty and
any requirement that the Lender exhaust any right or take any action against the
Borrower or any other person or entity or any collateral.
No delay or omission by the Lender to exercise any right hereunder shall impair
any such right, and any such delay or omission shall not be construed to be a
waiver thereof. A waiver of any single breach of default hereunder shall not be
deemed a waiver of any other breach or default. Any waiver, amendment to,
consent or approval under this Guaranty by the Lender must be in writing to be
effective and must be signed by the Lender.
15. Governing Law; Consent to Jurisdiction. This Guaranty is, and shall be
deemed to be, a contract entered into under and pursuant to the laws of the
State of Connecticut and shall be in all respects governed, construed, applied
and enforced in accordance with the laws of said State; and no defense given or
allowed by the laws of any other State or Country shall be interposed in any
action or proceeding hereon unless such defense is also given or allowed by the
laws of the State of Connecticut. The undersigned irrevocably appoints Xxxxx
Xxxxxxxxx and each and every officer of the undersigned as its attorneys upon
whom may be served any notice, process or pleading in any action or proceeding
against it arising out of or in connection with this Guaranty or any other Loan
Document (as defined in the Loan Agreement). The undersigned hereby consents
that any action or proceeding against it may be commenced and maintained in any
court within the State of Connecticut or in the United States District Court for
the District of Connecticut or, at the option of Bank, any court in which Bank
shall initiate legal or equitable proceedings and which has subject matter
jurisdiction over the matter in controversy, and that such action or proceeding
may be commenced by service of process on any such officer. The undersigned
agrees that the courts of the State of Connecticut and the United States
District Court for the District of Connecticut shall have jurisdiction with
respect to the subject matter hereof and the person of the undersigned. The
undersigned agrees not to assert any defense to any proceeding initiated by Bank
based upon improper venue or inconvenient forum.
16. Other Guarantors. The Guarantor acknowledges that other individuals or
entities may also guaranty the liabilities of the Borrower (the "Other
Guarantors") and that it is unconditionally delivering this Guaranty to the
Lender. The Guarantor further acknowledges that the failure of any of the Other
Guarantors to execute and deliver their respective guaranties or the discharge
of any of the Other Guarantors of their respective guarantied obligations shall
not discharge the liability of the Guarantor.
17. THE GUARANTOR ACKNOWLEDGES THAT THE LOAN EVIDENCED BY THE NOTE IS A
COMMERCIAL TRANSACTION AND WAIVES ITS RIGHT TO NOTICE AND HEARING UNDER CHAPTER
903a OF THE CONNECTICUT GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY ANY OTHER
STATE OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE HOLDER MAY
DESIRE TO USE, AND FURTHER, WAIVES DILIGENCE, DEMAND, PRESENTMENT FOR
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PAYMENT, NOTICE OF NONPAYMENT, PROTEST AND NOTICE OF PROTEST, AND NOTICE OF ANY
RENEWALS OR EXTENSIONS OF THIS GUARANTY THE GUARANTOR ACKNOWLEDGES THAT IT MAKES
THIS WAIVER KNOWINGLY, VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER EXTENSIVE
CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS.
18. THE GUARANTOR WAIVES TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION,
PROCEEDING OR ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO
THIS GUARANTY OR THE FINANCING TRANSACTION OF WHICH THIS GUARANTY IS A PART OR
THE DEFENSE OR ENFORCEMENT OF ANY OF THE HOLDER'S RIGHTS AND REMEDIES IN
CONNECTION THEREWITH. THE GUARANTOR ACKNOWLEDGES THAT IT MAKES THIS WAIVER
KNOWINGLY, VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER EXTENSIVE CONSIDERATION OF
THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the date
and year above written.
___________________________ FIRST AVIATION SERVICES, INC
___________________________ By /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Its Vice President
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STATE OF CONNECTICUT )
) ss.:__________
COUNTY OF FAIRFIELD )
On this the _____ day of March, 2000, before me, the undersigned officer,
personally appeared__________, who acknowledged himself to be the ____________
of FIRST AVIATION SERVICES, INC., a Delaware corporation, and that he, as such
officer, being authorized so to do, executed the foregoing instrument for the
purposes therein contained and acknowledged the same to be his free act and deed
individually and as such officer, and the free act and deed of the corporation.
IN WITNESS WHEREOF, I hereunto set my hand.
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Commissioner of the Superior Court
Notary Public
My Commission Expires:
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