CONTINUING GUARANTY (Business Organization) Maryland
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Exhibit 10.2 |
GUARANTOR:
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Xxxxxx.xxx, Inc. | |
| 0000 XxXxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000 | ||
| A corporation organized under the laws of the State of Delaware | ||
BORROWER:
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United Tote Company | |
| 00000 Xxxxxxxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxxxxxxx 00000 | ||
BANK:
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Manufacturers and Traders Trust Company, a New York banking corporation, with banking offices located at Xxx X&X Xxxxx, Xxxxxxx, Xxx Xxxx 00000 Attention: Office of General Counsel. |
1. Guaranty.
(a) Guarantor, intending to be legally bound, hereby unconditionally guarantees the full and
prompt payment and performance of any and all of Borrower’s Obligations (as defined below) to the
Bank when due, whether at stated maturity, by acceleration or otherwise. As used in this Guaranty,
the term “Obligations” shall mean any and all obligations, indebtedness and other liabilities of
Borrower to the Bank now or hereafter existing, of every kind and nature and all accrued and unpaid
interest thereon and all Expenses (as defined below) including without limitation, whether such
obligations, indebtedness and other liabilities (i) are direct, contingent, liquidated,
unliquidated, secured, unsecured, matured or unmatured; (ii) are pursuant to a guaranty or surety
in favor of the Bank; (iii) were originally contracted with the Bank or with another party
(including obligations under a guaranty or surety originally in favor of such other party); (iv)
are contracted by Borrower alone or jointly with one or more other parties; (v) are or are not
evidenced by a writing; (vi) are renewed, replaced, modified or extended; and (vii) are
periodically extinguished and subsequently reincurred or reduced and thereafter increased.
Guarantor will pay or perform its obligations under this Guaranty upon demand. This Guaranty is
and is intended to be a continuing guaranty of payment (not collection) of the Obligations
(irrespective of the aggregate amount thereof and whether or not the Obligations from time to time
exceeds the amount of this Guaranty, if limited), independent of, in addition and without
modification to, and does not impair or in any way affect, any other guaranty, indorsement, or
other agreement in connection with the Obligations, or in connection with any other indebtedness or
liability to the Bank or collateral held by the Bank therefor or with respect thereto, whether or
not furnished by Guarantor. Guarantor understands that the Bank can bring an action under this
Guaranty without being required to exhaust other remedies or demand payment first from other
parties.
(b) Guarantor acknowledges the receipt of valuable consideration for this Guaranty and
acknowledges that the Bank is relying on this Guaranty in making a financial accommodation to
Borrower, whether a commitment to lend, extension, modification or replacement of, or forbearance
with respect to, any Obligation, cancellation of another guaranty, purchase of Borrower’s assets,
or other valuable consideration.
2. Continuing, Absolute, Unconditional. This Guaranty is irrevocable, absolute, continuing,
unconditional and general without any limitation. This Guaranty is unlimited in amount.
3. Guarantor’s Waivers & Authorizations.
(a) Guarantor’s obligations shall not be released, impaired or affected in any way including
by any of the following, all of which Guarantor hereby waives (i) any bankruptcy, reorganization or
insolvency under any law of Borrower or that of any other party, or by any action of a trustee in
any such proceeding; (ii) any new agreements or obligations of Borrower or any other party with the
Bank; (iii) any adjustment, compromise or release of any Obligations of Borrower, by the Bank or
any other party; the existence or nonexistence or order of any filings, exchanges, releases,
impairment or sale of, or failure to perfect or continue the perfection of a security interest in
any collateral for the Obligations; (iv) any failure of Guarantor to receive notice of any intended
disposition of such collateral; (v) any fictitiousness, incorrectness, invalidity or
unenforceability, for any reason, of any instrument or other agreement which may evidence any
Obligation; (vi) any composition, extension, stay or other statutory relief granted to Borrower
including, without limitation, the expiration of the period of any statute of limitations with
respect to any lawsuit or other legal proceeding against Borrower or any person in any way related
to the Obligations or a part thereof or any collateral therefor; (vii) any change in form of
organization, name, membership or ownership of Borrower or Guarantor; (viii) any refusal or failure
of the Bank or any other person prior to the date hereof or hereafter to grant any additional loan
or other credit accommodation to Borrower or the Bank’s or any other party’s receipt of notice of
such refusal or failure; (ix) any setoff, defense or counterclaim of Borrower with respect to the
obligations or otherwise arising, either directly or indirectly, in regard to the Obligations; or
(x) any other circumstance that might otherwise constitute a legal or equitable defense to
Guarantor’s obligations under this Guaranty.
(b) The Guarantor waives acceptance, assent and all rights of notice or demand including
without limitation (i) notice of acceptance of this Guaranty, of Borrower’s default or nonpayment
of any Obligation, and of changes in Borrower’s financial condition; (ii) presentment, protest,
notice of protest and demand for payment; (iii) notice that any Obligations has been incurred or of
the reliance by the Bank upon this Guaranty; and (iv) any other notice, demand or condition to
which Guarantor might otherwise be entitled prior to the Bank’s reliance on or
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enforcement of this Guaranty. Guarantor further authorizes the Bank, without notice, demand or
additional reservation of rights against Guarantor and without affecting Guarantor’s obligations
hereunder, from time to time: (i) to renew, refinance, modify, subordinate, extend, increase,
accelerate, or otherwise change the time for payment of, the terms of or the interest on the
Obligations or any part thereof;(ii) to accept and hold collateral from any party for the payment
of any or all of the Obligations, and to exchange, enforce or refrain from enforcing, or release
any or all of such collateral; (iii) to accept any indorsement or guaranty of any or all of the
Obligations or any negotiable instrument or other writing intended to create an accord and
satisfaction with respect to any or all of the Obligations; (iv) to release, replace or modify the
obligation of any indorser or guarantor, or any party who has given any collateral for any of all
of the Obligations, or any other party in any way obligated to pay any or all of the Obligations,
and to enforce or refrain from enforcing, or compromise or modify, the terms of any obligation of
any such indorser, guarantor or party; (v) to dispose of any and all collateral securing the
Obligations in any manner as the Bank, in its sole discretion, may deem appropriate, and to direct
the order and the enforcement of any and all indorsements and guaranties relating to the
Obligations in the Bank’s sole discretion; and (vi) to determine the manner, amount and time of
application of payments and credits, if any, to be made on all or any part of the Obligations.
(c) Notwithstanding any other provision in this Guaranty, Guarantor irrevocably waives,
without notice, any right he or she may have at law or in equity (including without limitation any
law subrogating Guarantor to the rights of the Bank) to seek contribution, indemnification or any
other form of reimbursement from Borrower or any other obligor or guarantor of the Obligations for
any disbursement made under this Guaranty or otherwise.
4. Termination. This Guaranty shall remain in full force and effect as to each Guarantor
until actual receipt by the Bank officer responsible for Borrower’s relationship with the Bank of
written notice of Guarantor’s intent to terminate (or Guarantor’s death or incapacity) plus the
lapse of a reasonable time for the Bank to act on such notice (the “Receipt of Notice”); provided,
however, this Guaranty shall remain in full force and effect thereafter until all Obligations
outstanding, or contracted or committed for (whether or not outstanding), before such Receipt of
Notice by the Bank, and any extensions, renewals or replacements thereof (whether made before or
after such Receipt of Notice), together with interest accruing thereon after such Receipt of
Notice, shall be finally and irrevocably paid in full. Discontinuance of this Guaranty as to one
Guarantor shall not operate as a discontinuance hereof as to any other guarantor. Payment of all
of the Obligations from time to time shall not operate as a discontinuance of this Guaranty, unless
a Receipt of Notice as provided above has been received by the Bank. Guarantor agrees that, to the
extent that Borrower makes a payment or payments to the Bank on the Obligations, or the Bank
receives any proceeds of collateral to be applied to the Obligations, which payment or payments or
any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside
or otherwise are required to be repaid to Borrower, its estate, trustee, receiver or any other
party, including, without limitation, under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such repayment, the obligation or part thereof which has
been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and
effect as of the date such initial payment, reduction or satisfaction occurred, notwithstanding any
contrary action which may have been taken by the Bank in reliance upon such payment or payments.
As of the date any payment or proceeds of collateral are returned, the statute of limitations shall
start anew with respect to any action or proceeding by the Bank against Guarantor under this
Guaranty. Likewise, any acknowledgment, reaffirmation or payment, by Borrower or any third party,
of any portion of the Obligations, shall be deemed to be made as agent for the Guarantor, strictly
for the purposes of tolling the running of (and/or preventing the operation of) the applicable
statute of limitations with respect to any action or proceeding by the Bank against Guarantor under
this Guaranty.
5. Expenses. Guarantor agrees to reimburse the Bank on demand for all the Bank’s expenses,
damages and losses of any kind or nature, including without limitation costs of collection and
actual attorneys’ fees and disbursements for external counsel incurred by the Bank in attempting to
enforce this Guaranty, collect any of the Obligations including any workout or bankruptcy
proceedings or other legal proceedings or appeal, realize on any collateral, defense of any action
under the prior paragraph or for any other purpose related to the Obligations (collectively,
“Expenses”).
6. Financial and Other Information. Guarantor shall promptly deliver to the Bank copies of
all annual reports, proxy statements and similar information distributed to shareholders, partners
or members and of all filings with the Securities and Exchange Commission and the Pension Benefit
Guaranty Corporation and shall provide in form satisfactory to the Bank: (i) within sixty days
after the end of each of its first three fiscal quarters, consolidating and consolidated statements
of income and cash flows for the quarter, for the corresponding quarter in the previous fiscal year
and for the period from the end of the previous fiscal year, with a consolidating and consolidated
balance sheet as of the quarter end; and (ii) within ninety days after the end of each fiscal year,
consolidating and consolidated statements of Guarantor’s income and cash flows and its
consolidating and consolidated balance sheet as of the end of such fiscal year, setting forth
comparative figures for the preceding fiscal year and to be audited by an independent certified
public accountant; all such statements shall be certified by Guarantor’s chief financial officer or
partner to be correct, not misleading and in accordance with Guarantor’s records and to present
fairly the results of Guarantor’s operations and cash flows and if annual its financial position at
year end in conformity with generally accepted accounting principles. Guarantor authorizes the
Bank from time to time to obtain, verify and review all financial data deemed appropriate by the
Bank in connection with this Guaranty and the Obligations, including without limitation credit
reports from agencies. Guarantor understands this Guaranty and has satisfied itself as to its
meaning and consequences and acknowledges that it has made its own arrangements for keeping
informed of changes or potential changes affecting the Borrower including the Borrower’s financial
condition.
7. Security; Right of Setoff. As further security for payment of the Obligations, Expenses
and any other obligations of Guarantor to the Bank, Guarantor hereby grants to the Bank a security
interest in all money, securities and other property of Guarantor in the actual or constructive
possession or control of the Bank or its affiliates including without limitation all deposits and
other accounts owing at any time by the Bank or any of its affiliates in any capacity to Guarantor
in any capacity (collectively, “Property”). The Bank shall have the right to set off Guarantor’s
Property against any of Guarantor’s obligations to the Bank. Such set-off shall be deemed to have
been exercised immediately at the time the Bank or such affiliate elect to do so. The Bank shall
also have all of the rights and remedies of a secured party under the Uniform Commercial Code, as
the same may be in effect in the State of Maryland, as amended from time to time, in addition to
those under this Guaranty and other applicable law and agreements.
8. No Transfer of Assets. Guarantor shall not transfer, reinvest or otherwise dispose of its
assets in a manner or to an extent that would or might impair Guarantor’s ability to perform its
obligations under this Guaranty.
9. Nonwaiver by the Bank; Miscellaneous. This Guaranty is intended by Guarantor to be the
final, complete and exclusive expression of the agreement between Guarantor and the Bank. This
Guaranty may be assigned by the Bank, shall inure to the benefit of the Bank and
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its successors and assigns, and shall be binding upon Guarantor and his or her legal
representative, successors and assigns and any participation may be granted by the Bank herein in
connection with the assignment or granting of a participation by the Bank in the Obligations or any
part thereof. All rights and remedies of the Bank are cumulative, and no such right or remedy
shall be exclusive of any other right or remedy. This Guaranty does not supersede any other
guaranty or security granted to the Bank by Guarantor or others (except as to Guarantor’s Waiver of
Subrogation rights above). No single, partial or delayed exercise by the Bank of any right or
remedy shall preclude exercise by the Bank at any time at its sole option of the same or any other
right or remedy of the Bank without notice. Guarantor expressly disclaims any reliance on any
course of dealing or usage of trade or oral representation of the Bank including, without
limitation, representations to make loans to Borrower or enter into any other agreement with
Borrower or Guarantor. No course of dealing or other conduct, no oral agreement or representation
made by the Bank or usage of trade shall operate as a waiver of any right or remedy of the Bank.
No waiver or amendment of any right or remedy of the Bank or release by the Bank shall be effective
unless made specifically in writing by the Bank. Each provision of this Guaranty shall be
interpreted as consistent with existing law and shall be deemed amended to the extent necessary to
comply with any conflicting law. If any provision nevertheless is held invalid, the other
provisions shall remain in effect. Xxxxxxxxx agrees that in any legal proceeding, a copy of this
Guaranty kept in the Bank’s course of business may be admitted into evidence as an original.
Captions are solely for convenience and not part of the substance of this Guaranty.
10. Joint and Several. If there is more than one Guarantor, each Guarantor jointly and
severally guarantees the payment and performance in full of all obligations under this Guaranty and
the term “Guarantor” means each as well as all of them. Xxxxxxxxx also agrees that the Bank need
not seek payment from any source other than the undersigned Guarantor. This Guaranty is a primary
obligation. Guarantor’s obligations hereunder are separate and independent of Xxxxxxxx’s, and a
separate action may be brought against Guarantor whether or not action is brought or joined against
or with Borrower or any other party.
11. Authorization. Guarantor certifies that it is an entity in the form described above duly
organized and in good standing under the laws of the State of its organization and duly authorized
to do business in each State material to the conduct of its business. Guarantor has determined
that the execution of this Guaranty will be in its best interests, to its direct benefit,
incidental to its powers, and in furtherance of its duly acknowledged purposes and objectives.
Execution of this Guaranty by the persons signing below has been authorized by all necessary
corporate action, including directors’ and shareholder consent or (as appropriate) is authorized by
its partnership agreement or governing instrument. Guarantor’s chief executive office is located
at the above address.
12. Notices. Any demand or notice hereunder or under any applicable law pertaining hereto
shall be in writing and duly given if delivered to Guarantor (at its address on the Bank’s records)
or to the Bank (at the address on page one and separately to the Bank officer responsible for
Xxxxxxxx’s relationship with the Bank). Such notice or demand shall be deemed sufficiently given
for all purposes when delivered (i) by personal delivery and shall be deemed effective when
delivered, or (ii) by mail or courier and shall be deemed effective three (3) business days after
deposit in an official depository maintained by the United States Post Office for the collection of
mail or one (1) business day after delivery to a nationally recognized overnight courier service
(e.g., Federal Express). Notice by e-mail is not valid notice under this or any other agreement
between Guarantor and the Bank.
13. Governing Law and Jurisdiction. This Guaranty has been delivered to and accepted by the
Bank and will be deemed to be made in the State of Maryland. Except as otherwise provided under
federal law, this Guaranty will be interpreted in accordance with the laws of the State of Maryland
excluding its conflict of laws rules. GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE STATE OF MARYLAND WHERE THE BANK MAINTAINS A
BRANCH AND CONSENTS THAT THE BANK MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT
GUARANTOR’S ADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED
IN THIS GUARANTY WILL PREVENT THE BANK FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR JUDGMENT OR
EXERCISING ANY RIGHTS AGAINST GUARANTOR INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY
OF GUARANTOR WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC JURISDICTION. Guarantor
acknowledges and agrees that the venue provided above is the most convenient forum for both the
Bank and Guarantor. Guarantor waives any objection to venue and any objection based on a more
convenient forum in any action instituted under this Guaranty.
14. Waiver of Jury Trial. GUARANTOR AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY GUARANTOR AND THE BANK MAY HAVE IN ANY ACTION OR
PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS RELATED
HERETO. GUARANTOR REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF THE BANK HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BANK WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THIS JURY TRIAL WAIVER. GUARANTOR ACKNOWLEDGES THAT THE BANK HAS BEEN INDUCED TO ENTER
INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
15. Power to Confess Judgment. GUARANTOR HEREBY EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD
TO APPEAR FOR GUARANTOR AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A SERIES OF
JUDGMENTS, AGAINST GUARANTOR IN FAVOR OF THE BANK OR ANY HOLDER HEREOF FOR ALL AMOUNTS DUE
HEREUNDER, TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY’S COMMISSION OF THE GREATER OF TEN PERCENT
(10%) OF SUCH AMOUNTS OR $1,000 ADDED AS A REASONABLE ATTORNEY’S FEE, AND FOR DOING SO THIS
GUARANTY OR A COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. GUARANTOR HEREBY FOREVER
WAIVES AND RELEASES ALL ERRORS IN SAID PROCEEDINGS AND ALL RIGHTS OF APPEAL AND ALL RELIEF FROM ANY
AND ALL APPRAISEMENT, STAY OR EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED.
INTEREST ON ANY SUCH JUDGMENT SHALL ACCRUE AT THE DEFAULT RATE SET FORTH IN ANY OF THE DOCUMENTS
EVIDENCING THE OBLIGATIONS OF BORROWER. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS
JUDGMENT, OR A SERIES OF JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH
EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE
UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THE BANK SHALL ELECT UNTIL SUCH
TIME AS THE BANK SHALL HAVE RECEIVED PAYMENT IN FULL OF ALL AMOUNTS DUE HEREUNDER. NOTWITHSTANDING
THE FOREGOING, SOLELY WITH RESPECT TO ATTORNEYS’ FEES INCURRED BY THE BANK IN CONNECTION WITH THIS
NOTE, THE BANK AGREES THAT, IN COLLECTING ANY JUDGMENT BY CONFESSION OBTAINED AGAINST THE
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BORROWER IN CONNECTION WITH THIS NOTE, THE BANK SHALL NOT COLLECT ANY AMOUNTS IN EXCESS OF THE
ACTUAL AMOUNT OF ATTORNEYS’ FEES CHARGED OR BILLED TO THE BANK.
16. Guarantor acknowledges that it has read and understands all the provisions of this
Guaranty, including the Confession of Judgment, Governing Law, Jurisdiction and Waiver of Jury
Trial, and has been advised by counsel as necessary or appropriate.
WITNESS
the due execution hereof as a SEALED INSTRUMENT this 9th day of February, 2006.
| GUARANTOR: Xxxxxx.xxx, Inc. |
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| By: | /s/ Xxxx X. Xxxxxxx | (L.S.) | ||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
FOR BANK USE ONLY
Authorization Confirmed: |
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Signature
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