UNCONDITIONAL GUARANTY AGREEMENT
THIS UNCONDITIONAL GUARANTY AGREEMENT (this "Guaranty") is made as of
July 26, 1996 and effective as of July 31, 1996, by Xxxxxx X. Xxxxxxxx and
Xxxxxxx X. Xxxxxxxx, South Carolina residents and husband and wife, (the
"Guarantors"), in favor of ENVIROMETRICS, 1NC., a Delaware corporation (the
"Creditor").
RECITALS:
A. Trico Envirometrics, Inc. a South Carolina corporation (the
"Debtor") is currently indebted to the Creditor in an approximate aggregate
amount of Six Hundred, Thousand Dollars ($600,000.00 US), which
indebtedness is subject to increase (as such may change from time to time,
the "Indebtedness"), and is now evidenced by a certain Promissory Note of
even date herewith in favor of the Creditor (the "Note").
B. Concurrent herewith, Xxxxxx X. Xxxxxxxx is purchasing from the
Creditor pursuant to a certain Stock Purchase Agreement, of even date, all
of the outstanding shares of common stock of the Debtor for a purchase
price of 45,000 shares of Envirometrics, Inc. common stock. The Creditor
has agreed to sell such stock for such price to Xxxxxx X. Xxxxxxxx subject
to, among other conditions, the Guarantors executing and delivering this
Guaranty to the Creditor.
C. To induce the Creditor to sell to Xxxxxx X. Xxxxxxxx all of the
outstanding shares of common stock of the Debtor for such purchase price,
the Guarantors wish to guarantee, jointly and severally, (i) payment of all
the indebtedness, and (ii) performance of all of the respective covenants,
obligations and agreements of each of the Debtor and Xxxxxx X. Xxxxxxxx, as
set forth in the documents evidencing, securing the repayment of, executed
in connection with, or otherwise related to the Indebtedness or the sate of
stock to Xxxxxx X. Xxxxxxxx, including without limitation, the Stock
Purchase Agreement, the Note, the Pledge Agreement, the Security Agreement,
this Agreement and the Accounting Services Agreement, all of even date
(collectively, as hereafter amended, modified, extended or renewed from
time to time, the "Transaction Documents"), all according to the terms and
conditions hereinafter set forth.
AGREEMENT:
NOW, THEREFORE, in consideration of the representations, warranties
and covenants herein set forth, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and as an
inducement to the Creditor to sell all of the issued and outstanding common
stock of the Debtor to Xxxxxx X. Xxxxxxxx, each of the Guarantors hereby
covenants and agrees as follows:
1. Guaranty of Obligations. Each of the Guarantors hereby guarantee,
absolutely and unconditionally, to the Creditor (i) payment of all the
indebtedness and (ii) performance of all of the respective covenants,
obligations and agreements of each of the Debtor and Xxxxxx X. Xxxxxxxx, as
set forth in the Transaction Documents, or any of them (collectively, the
"Obligations"). The term "Obligations" shall include all of the foregoing
matters, whether matured or un-matured, or absolute or contingent, and
whether they are from time to time reduced, thereafter increased, or
entirely extinguished and thereafter reincurred. The term "Obligations"
shall further include, without limitation, all liability of the Debtor to
the Creditor, whether now or hereafter incurred; whether direct, indirect
or contingent; whether incurred as primary debtor, co-maker or guarantor;
whether otherwise guaranteed or secured; and whether on open account,
evidenced by an instrument or otherwise.
2. Continuing Obligations. This Guaranty is a continuing guaranty,
shall remain in full force and effect irrespective of any interruptions in
the business relations of the Debtor with the Creditor or any of the
Guarantors, and shall apply to and guarantee any and all of the
Obligations.
3. Application of Sums Received. All assets and monies available to
the Creditor for application in payment or reduction of the Obligations may
be applied by the Creditor in such manner in such amounts, and at such time
or times as it may see fit, to the payment or reduction of such of the
Obligations as the Creditor may elect.
4. Renewal or Extension. The Guarantors hereby agree that the Creditor
may, from time to time and for any period or periods of time, either before
or after any default by the Debtor, with or without further notice to the
Guarantors, renew or extend the time for payment or performance of any of
the Obligations and grant and allow such indulgences or compromises in
connection therewith as the Creditor may deem advisable or expedient, may
change, renew, extend, surrender, release, substitute and compromise, deal
with and refuse to accept, in whole or in part, any security at any time
held by or available or offered to the Creditor for any Liability or for
any obligation of any other person, partnership or corporation secondarily
or otherwise liable for any of the Obligations, and may abstain from taking
advantage of and from realizing upon any security interest or other
guaranty securing or otherwise related to all or any of the Obligations.
The Creditor may set off or release, in whole or in part, any balance of
any account or credit on its books in favor of the Debtor, or of any such
other person, partnership or corporation, and may extend credit in any
manner whatsoever to the Debtor, and generally deal with the Debtor or any
such security or other person, partnership or corporation as the Creditor
may see fit. The Creditor may release any Guarantor from any or all
obligations hereunder without affecting, in any manner, the obligations of
the other Guarantor hereunder.
5. Waiver. The Guarantors hereby waive the following:
(a) Notice of acceptance of this Guaranty, of any renewals or
extensions of time for payment or performance of any of the Obligations, of
any changes in the terms of the Obligations, including, without limitation,
any increase or decrease in installment payments or any interest rate
adjustment, of any extensions of credit by the Creditor to the Debtor, and
of any other change in the Obligations, including, without limitation, any
change in the business structure of the Debtor;
(b) Presentment and demand for payment of any of the Obligations;
(c) Protest and notice of dishonor or default to the Guarantors or to
any other party with respect to any of the Obligations;
(d) Notice of the financial condition or other status of the Debtor
and of any other party obligated for all or any part of the Obligations;
(e) Any impairment of collateral for any of the Obligations,
including, without limitation, any failure to perfect a security interest
in such collateral; and
(f) Any demand (except expressly specified herein) of proof of
nonpayment of the principal of or interest on the Note, or other payments
of money required by the Transaction Documents or the Debtor's Agreements
or of any default by the Debtor in performing and keeping any other
covenant, condition or agreement under the Transaction Documents.
6. No Limitation. This Guaranty is an unconditional guaranty, and the
liability of each of the Guarantors to the Creditor shall not be terminated
or in any way limited by reason of or as a result of anything set forth or
contained in any writing evidencing all or any part of the Obligations nor
shall it be further limited to a proportionate part of the total of the
Obligations.
7. Guaranty of Payment. This Guaranty is a guaranty of payment and not
of collection, and the Guarantors further waive any right to require that
any action be brought against the Debtor or any other person, partnership
or corporation or to require that resort be had to any security or to any
balance of any account or credit on the books of the Creditor in favor of
the Debtor or any other person, partnership or corporation, and agree that
the Creditor assumes no responsibility for the validity or enforceability
of any security for the Obligations.
8. No Discharge or Impairment. This Guaranty, and the obligations of
the Guarantors hereunder, shall not be discharged, impaired or affected in
any manner as a result of (a) any right of setoff, counterclaim or defense
of the Debtor with respect to the payment or performance of any of the
Obligations, including, without limitation, failure of consideration,
breach of warranty, payment, statute of frauds, statute of limitations,
accord and satisfaction and usury, (b) the termination of the right of the
Debtor to continue to exist as a legal entity, or (c) any lack of power or
authority of the Debtor to execute or deliver any of the Transaction
Documents.
9. No Subrogation Setoff. Notwithstanding anything to the contrary
contained herein, each Guarantor hereby irrevocably waives all rights that
he or she may have at law or in equity (including, without limitation, any
law surrogating a Guarantor to the rights of the Creditor) to seek
contributions, indemnification, or any other form of reimbursement from the
Debtor, any other Guarantor, or any other person now or hereafter primarily
or secondarily liable for any obligations of the Debtor to the Creditor,
for any disbursement made by a Guarantor under or in connection with the
guaranty or otherwise, which waiver shall be effective until (a) all
Obligations have been paid in full, (b) 370 days have lapsed since the date
that all Obligations have been paid in full, and (e) no petition for relief
under Title 11 of the United States Code has been filed by or against the
Debtor or any Guarantor within the 370 days following the payment in full
of all such obligations. The Creditor shall have the right, immediately and
without further action by it, to set off against any obligation of the
Guarantors to the Creditor hereunder all money owed by the Creditor in any
capacity to the Debtor or to any of the Guarantors, whether or not due; and
the Creditor shall be deemed to have exercised such right of setoff and to
have made a charge against any such sums immediately upon the occurrence of
any default in the payment or performance of the Obligations, even though
such charges are made or entered on the books of the Creditor subsequent
thereto. Any funds or other property at any time received by the Guarantors
from the Debtor shall be held in trust for, and shall be paid or
transferred to, the Creditor.
10. Subsequent Guaranty. A subsequent guaranty by any of the
Guarantors of the Obligations shall not be deemed to be in lieu of or to
supersede or terminate this Guaranty, but shall be construed as an
additional or supplemental guaranty unless otherwise expressly provided
therein.
11. Reimbursement Revocation. The Guarantors agree, upon demand, to
reimburse the Creditor, to the extent that such reimbursement is not made
by the Debtor, for all expenses (including, without limitation, attorneys'
fees) incurred by the Creditor in connection with any of the Obligations or
the obligations of the Guarantors hereunder or the collection thereof. The
guaranties contained herein shall remain in full force and effect until all
of the Obligations shall have been paid or performed in full, and a period
of ninety-five (95) days, beginning with the date oft he last payment made
in satisfaction of the Obligations, shall have elapsed during which no
petition in bankruptcy shall be filed by or against the Debtor or any of
the Guarantors, Revocation of this Guaranty shall be effective only as to
that portion of the Obligation incurred after written notice of revocation
has been received by the Creditor at its address set forth in the
Transaction Documents, and this Guaranty shall remain in full force and
effect as to all Obligations incurred before or at that time. Regardless of
when a renewal or extension of pre-revocation Obligations occurs (with or
without adjustment of interest rate or other terms), for all purposes
hereunder such Obligations shall be deemed to have been incurred prior to
revocation to the extent of the renewal or extension and to be fully
covered by this Guaranty.
12. Successors and Assigns. Each reference herein to the Debtor shall
be deemed to include its successors and assigns, unless the Creditor
specifically waives in writing the benefits of this guaranty as to the
specific obligation or agreement assigned by the Debtor, Each reference
herein to the Creditor shall be deemed to include its successors and
assigns, in whose favor the provisions of this Guaranty also shall inure,
Each reference herein to the Guarantors shall be deemed to include the
respective successors, assigns, heirs, administrators, executors, and
personal representatives of each of the Guarantors, all of whom shall be
bound by the provisions of this Guaranty.
13. Joint and Several Obligations. Each undertaking and obligation
herein contained shall be the joint and several undertaking and obligations
of each of the Guarantors.
14. No Waiver. No delay on the part of the Creditor in exercising any
rights hereunder or failure to exercise the same shall operate as a waiver
of such rights, and no notice to or demand on the Guarantors shall be
deemed to be a waiver of the obligation of the Guarantors or of the right
of the Creditor to take further action without notice or demand as provided
herein.
15. Representations and Warranties. Each of the guarantors represents
and warrants that:
(a) There has been no material adverse change in his general affairs,
financial condition or assets subsequent to the effective date of all
financial and other information furnished to the Creditor.
(b) Each is fully capable and empowered (being under no legal
restriction, limitation or disability) to enter into, execute and deliver
this Guaranty and to perform his obligations hereunder.
(c) Each has duly executed and delivered the Guaranty, and this
Guaranty constitutes a valid and binding obligation, enforceable in
accordance with its terms, except as such enforceability may be affected by
bankruptcy and other insolvency laws and general principles of equity.
(d) Except as previously disclosed to the Creditor in writing, there
are no pending or, to the best of his knowledge, threatened actions, suits,
proceedings or investigations of a legal, equitable, regulator,
administrative or legislative nature that, if adversely determined, would
or might materially adversely affect his business, assets, condition
(financial or otherwise) or prospects or his ability to perform his
obligations under this Guaranty.
(e) To the best of his knowledge, after due inquiry, no event that
would constitute an "Event of Default" (as hereinafter defined), or that,
with notice or lapse of time or both, would become an Event of Default, has
occurred and is continuing.
16. Events of Default. Each of the Following events shall constitute
an (Event of Default" hereunder:
(a) Failure of any Guarantor to pay or perform the Obligations
immediately upon demand by the Creditor;
(b) Failure of any Guarantor to observe or perform any of the
covenants, conditions or agreements hereunder (other than the payment of
money) for a period of thirty (30) days after notice from the Creditor,
specifying such failure and requesting that it be remedied; and
(c) Occurrence of an event of Default" under any of the Transaction
Documents that is not remedied within the time permitted.
Whenever an Event of Default hereunder shall have occurred and is
continuing, the Creditor may declare the entire unpaid principal of and
interest on the Note and the other Obligations to be immediately due and
payable and may take whatever action at law or in equity as may appear
necessary or desirable to collect payments when due or thereafter to become
due hereunder or to enforce observance or performance of any covenant,
condition or agreement of the Guarantors under this Guaranty.
17. Rules of Construction.
(a) Singular words shall connote the plural as well as the singular,
and vice versa, and the masculine general shall connote the neuter and the
feminine genders, and vice versa, as the context may require.
(b) The paragraph headings set forth herein are solely for convenience
of reference and shall not constitute a part of the Guaranty nor shall they
affect its meaning, construction or effect.
18. Written Modification. No modification or waiver of the provisions
of this guaranty shall be effective unless in writing, nor shall any such
waiver be applicable except in the specific instance for which it is given.
19. Governing Law. This guaranty, and the respective rights and
obligations of the Creditor and the guarantors hereunder, shall be
interpreted, governed, and enforced according to the laws of South
Carolina, without regard to the choice of taw principles of it or any other
jurisdiction.
20. Venue and In Personam Jurisdiction Any cause of action arising
from the terms of this Agreement shall be brought only in a state or
federal court in the City of Charleston, South Carolina, which shall be the
exclusive and sole venue for the adjudication of any disputes hereunder.
The Guarantors consent to exercise by the aforementioned courts of in
personam jurisdiction over each of them with respect to any cause of action
brought pursuant to this Agreement.
21. Severability. Should any one or more of the terms, provisions,
convenants or conditions of the Guaranty be held to be void, invalid,
illegal or un-enforceable in any respect, the same shall, at the option of
the Creditor, not affect any other term, provision, covenant or condition
of this guaranty, but the remainder hereof shall be effective as though
such term, provisions, covenant or condition had never been contained
herein.
22. Merger. This Guaranty constitutes the final expression of the
guaranty agreement between the Creditor and the Guarantors with respect to
the guaranty effected hereunder, and is the complete and exclusive
statement of the terms and conditions of such guaranty agreement. 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 provisions
hereof, and there are no conditions to the full effectiveness of this
Guaranty.
WITNESS the following signatures as of the date first above written
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
STATE OF SOUTH CAROLINA
CITY/COUNTY OF CHARLESTON
The foregoing instrument was acknowledged before me this 1999 by
Xxxxxx X. Xxxxxxxx.
My commission expires:
Notary Public
STATE OF SOUTH CAROLINA ) ) to-wit: CITY/COUNTY OF CHARLESTON ) The
foregoing instrument was acknowledged before me this 10th day of Jan. 19977
by Xxxxxxx X. Xxxxxxxx.
My commission expires:
Notary Public
SCHEDULE 1
Collateral Locations.
1.
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