UNLIMITED GUARANTY OF PAYMENT AND PERFORMANCE
THIS AGREEMENT OF GUARANTY, dated as of this 13th day of March, 1998,
between Xxxxxxxxx Instruments, Inc., a Delaware corporation, with offices at 000
Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 (, the "Guarantor") and FLEET BANK,
N.A. with offices at 0000 Xxxxx 00 Xxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000
(hereinafter, together with any successor and assigns, "Lender").
W I T N E S S E T H :
WHEREAS, Xxxxxxxxx Technologies Incorporated, a Delaware corporation
(the "Borrower") is indebted to Bank pursuant to a certain Revolving Credit
Note, of even date herewith (the "Note"), which evidences an obligation in the
original maximum principal balance of $5,000,000.00 (the "Loan"); and
WHEREAS, Lender is unwilling to enter into the assumption
transaction without further collateral security in the form of an unconditional
guaranty by the Guarantor; and
WHEREAS, to induce Lender to grant the Loan to the Borrower, the
Guarantor herein executes the within instrument; and
NOW, THEREFORE, in consideration of the premises contained herein and
the sum of ONE ($1.00) DOLLAR, the receipt of which is hereby acknowledged, the
undersigned agree as follows:
1. Guaranty. The Guarantor absolutely and unconditionally guarantees to
Lender the due and prompt payment, whether at maturity or by acceleration or
otherwise, of the Loan including all principal, interest and other monies due or
that may become due under the documents evidencing the loan and the due and
punctual performance and observance by Borrower of any other terms, covenants
and conditions of the Loan Documents on the part of Borrower to be kept,
observed or performed together with all reasonable legal and other expenses of
collection and enforcement, including payment of the Loan. The Guarantor hereby
expressly and unconditionally waives demand, notice of presentment and
non-payment, protest and notice of protest, of said Note and consents that the
time for payment thereof may be extended by Lender without notice to or further
consent from any Guarantor.
2. Actions of Lender Do Not Affect Liability. In addition to (but not
in limitation of) all of the foregoing provisions, Lender may take any of the
following actions (with or without notice to any Guarantor) without affecting
the liability of any Guarantor in any way:
(a) Release, exchange, increase, decrease or surrender all or
any part of the security held by Lender for the said obligation, or substitute
new security for all or any portion thereof, whether or not the new security
shall be equal in value with the security substituted.
(b) Recast, extend or modify all or any portion of the said
obligation.
(c) Grant waivers, extensions, renewals or other indulgences
under any of the Loan Documents.
(d) Modify or amend any of the terms, provisions or agreements
contained in any of the Loan Documents.
(e) Vary, exchange, release or discharge, wholly or partially,
or delay in or abstain from perfecting or enforcing any security or guaranty of
the Loan Documents by any other person.
(f) Accept partial payment or performance of any of the
obligations due under the Loan Documents from the Borrower or any Guarantor.
(g) Compromise or make any settlement or other arrangement
with the Borrower or any Guarantor.
3. Liability Unconditional. Liability on this Guaranty shall not be
conditional or contingent upon the pursuance by Lender of whatever remedies that
Lender may have against Borrower, nor shall Lender be required to foreclose,
exhaust, or in any other way look for any security that Lender now has or that
Lender may obtain or acquire in the future. Lender shall not be obligated or
required to pursue any remedies it may have against Borrower, upon default of
Borrower, prior to pursuing any remedy against any Guarantor. Not in limitation
of the generality of the foregoing, the liability of any Guarantor hereunder
shall remain effective and enforceable even though Borrower's liability under
the Loan Documents may be unenforceable or even though recovery against the
Borrower may be barred by a statute of limitations or otherwise. Guarantor
waives any defense arising by reason of any disability or other defense of
Borrower or by reason of the cessation, from any cause whatsoever, of the
liability of Borrower.
4. Continuing Liability. Liability of the Guarantor hereunder shall be
a continuing one and shall extend to any and all notes or other evidences of
indebtedness that may be given in extension or renewal of the Note.
5. Representations and Warrants. The Guarantor hereby represents and
warrants that:
(a) Xxxxxxxxx Instruments, Inc., is a New Jersey corporation
in good standing and qualified to do business in New Jersey and all other
jurisdictions in which it conducts business or owns assets.
(b) The execution of this guaranty by the Guarantor has been
duly authorized by proper action of its board of directors and the persons
executing this guaranty on behalf of the Guarantor have been authorized to act
on the Guarantor's behalf and to bind the Guarantor to the terms hereof.
(c) The Guarantor has the legal capacity to enter into this
Guaranty and to perform its obligations hereunder.
(d) This Guaranty constitutes the legal, valid and binding
obligation of the Guarantor and is enforceable against the Guarantor in
accordance with its terms, subject to creditors, rights in general and
bankruptcy and insolvency laws.
(e) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, or before or by any court, public board or
body, pending or within the knowledge of Guarantor threatened, wherein an
unfavorable decision, ruling or finding would (i) to the extent not covered by
insurance, result in any material, adverse change in the business, financial
condition, properties or operations of Guarantor; (ii) materially adversely
affect the transactions contemplated in the Loan Documents or this Guaranty; or
(iii) adversely affect the validity or enforceability of the Loan Documents or
this Guaranty. All authorizations, consents and approvals of governmental bodies
or agencies required in connection with the execution and delivery of this
Guaranty or in connection with the performance of the Guarantor's obligations
hereunder have been obtained and will be obtained whenever required hereunder by
law.
(f) Neither the execution and delivery of this Guaranty, the
consummation of the transactions contemplated hereunder, nor the fulfillment of
or compliance with the terms and conditions contained herein is prevented,
limited by, conflicts with or results in a breach of the terms, conditions or
provisions of any law, rule, regulation, order of any court or governmental
agency, or any evidence of indebtedness, agreement or instrument of whatever
nature to which Guarantor (or any company, corporation or other business entity
controlled by Guarantor or affiliated with it) is now a party, or to which
Guarantor or any such entity is bound, or constitutes a default under any of the
foregoing. Such execution, delivery, consummation and performance will not
result in the creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of the Guarantor or any such entity.
(g) The granting of the credit facility to the Borrower will
result in material benefits to the Guarantor.
(h) Neither this Guaranty nor any other document, certificate
or statement furnished to the Lender by or on behalf of the Borrower or
Guarantor contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein and
therein not misleading or incomplete.
(i) The representations and warranties of the Borrower to the
Lender were wholly true and accurate when made and are wholly true and accurate
as of the execution hereof.
6. Covenants of Guarantor. The Guarantor hereby covenants and agrees
that:
(a) Guarantor guarantees, unconditionally, that the Loan and
other obligations of Borrower under the Loan Documents will be paid and
performed in accordance with their terms, promptly upon demand of the Lender.
(b) Guarantor shall cause the Borrower to fully perform and
observe all of the covenants, agreements and obligations of the Borrower under
each of the Loan Documents.
(c) If Guarantor shall receive any monies, by reason of the
exercise of any rights of subrogation or contribution, prior to the payment in
full and performance of the Obligations contained herein and under the Loan
Documents, such amounts shall be paid by such Guarantor directly to the Lender.
(d) If Borrower is now or shall hereafter become indebted to
Guarantor, the amount of each sum and such indebtedness shall at all times be
subordinate, as to lien, time of payment and in all other respects to the
amounts owing to the Lender under the Loan Documents, and Guarantor shall not be
entitled to enforce or receive payment thereof until all sums owing to the
Lender have been paid. Nothing herein contained is intended or shall be
construed to give Guarantor any right of subrogation in or under the Note, or
any right to participate in any way therein, notwithstanding any payments made
by Guarantor under the Guaranty. The obligations of the Guarantor hereunder
shall continue in full force and effect until the obligations and all
obligations of the Borrower shall have been fully paid and performed.
(e) At all times during the term of this Guaranty, Guarantor
shall operate and maintain its assets and properties in a reasonable manner and
keep their property in good repair, and shall not despoil their assets.
(f) Guarantor shall promptly notify Lender of any material and
adverse changes in Guarantor's financial condition during the period of time
that the Loan remains outstanding.
(g) Guarantor shall promptly notify Lender of any litigations,
actions, proceedings, claims or investigations, pending or threatened against
Guarantor, that may materially and adversely affect the financial condition of
Guarantor.
7. Events of Default. Any one or more of the following shall constitute
an "Event of Default" hereunder:
(a) Failure of the Guarantor to perform its obligations herein
or to under the terms of the Revolving Credit Loan Agreement, of even date
herewith.
8. Remedies Upon Default. If any one or more Events of Default shall
occur under this Guaranty, then in each case, the Lender shall have all rights
and remedies, including but not limited to the right to:
(a) cause all amounts payable hereunder and pursuant to the
Loan Documents to be immediately due and payable, whereupon the same shall
become immediately due and payable;
(b) take any other action available, either in law or in
equity to enforce performance or collect any amounts due or thereafter to become
due under this Guaranty, or any of the Loan Documents and exercise all rights
and remedies of the Lender thereunder;
(c) enforce the observance of any of the covenants or
obligations of Guarantor under this Guaranty or any of the obligations of the
Borrower under the Loan Documents.
9. Costs of Collection. This Guaranty also includes all reasonable
attorneys' fees and expenses and disbursements incurred by Lender in the
collection, enforcement of payment or performance by Borrower of any obligation
of Borrower to Lender, and in the collection, enforcement of payment or
performance by Guarantor hereunder, including all reasonable expenses incurred
in enforcing all rights under this Guaranty.
10. No Waiver. Any waiver by Lender on default of Borrower, and any
failure on the part of Lender to enforce its rights against Borrower, shall be
limited to that particular instance, shall not operate or be deemed to waive any
future default or defaults, and shall not affect the absolute and unconditional
liability of the Guarantor. Any extensions of time granted by Lender to Borrower
shall not release the Guarantor from its obligations hereunder.
11. Indemnification. The Guarantor shall indemnify and save the Lender
harmless from any loss, claim, demand or charge whatsoever incurred by Lender
arising out of or resulting from default of the Borrower under any of the Loan
Documents.
12. Continuing Effect. This Guaranty shall continue in full effect,
notwithstanding any insolvency or bankruptcy of the Borrower.
13. Consent and Waiver By Guarantor. The Guarantor hereby consents to
all the terms and provisions of each of the Loan Documents, as the same may be
from time to time amended or modified. The Guarantor hereby irrevocably waives:
(a) Notice of acceptance of this Guaranty and notice that
credit has been extended by the Lender in reliance thereon;
(b) Notice of any amendment or any change in the terms of any
of the Loan Documents, or any other present or future agreement relating
directly or indirectly thereto;
(c) Notice of any default or Event of Default under any of the
Loan Documents, or any other present or future agreement relating directly or
indirectly thereto;
(d) Demand for performance, observance of and enforcement of
any provisions, or any pursuit or exhaustion of any rights or remedies against
the Borrower, or any other Guarantor or obligor who becomes liable in any manner
for any of the obligations, and any requirements of diligence or promptness on
the part of the Lender or any assignee of Lender in connection therewith;
(e) Diligence, presentment, protest, notice of dishonor and
notice of default in the payment of any amount at any time payable by the
Borrower under or in connection with any of the Loan Documents;
(f) The benefit of any statute of limitations affecting
Guarantor's liability hereunder or the enforcement thereof, and agrees that any
payment of any indebtedness or other act that shall toll any statute of
limitations applicable thereto shall similarly operate to toll such statute of
limitations applicable to Guarantor's liability hereunder; or
(g) The benefit of laws exempting property from levy or
execution.
14. Binding Effect. The Guarantor hereto agrees that this Guaranty
shall bind and inure to the benefit of its successors and assigns.
15. Governing Law. This Guaranty shall be governed by the substantive
law of New Jersey. The Guarantor hereby consents to the jurisdiction of the
courts of the State of New Jersey or the federal courts located in the federal
district of New Jersey.
16. Assignment By Lender. Lender may, without notice, assign this
Guaranty in whole or in part to a party to whom the Loan is assigned.
17. Setoff. In addition to all liens upon, and rights of setoff
against, the monies, securities or other property of Guarantor given to Lender
by law, Lender shall have a lien upon and a right of setoff against, all monies,
securities and other property of Guarantor now or hereafter in the possession of
Lender. Every such lien and right of setoff may be exercised without demand upon
or notice to Guarantor. No lien or right of setoff shall be deemed to have been
waived by any act or conduct on the part of Lender, or by any neglect to
exercise such right of setoff or to enforce such lien, or by any delay in so
doing. Every right of setoff and lien shall continue in full force and effect
until such right of setoff or lien is assigned to Lender as security for this
Guaranty and the Loan, without reducing or affecting in any manner the liability
of Guarantor under the other provisions of this Guaranty. Any notes now or
hereafter evidencing indebtedness of Borrower to Guarantor shall be marked with
a legend that the same are subject to this Agreement and, if Lender so requests,
shall be delivered to Lender.
18. Notices. All notices, requests and other communication pursuant to
this Guaranty shall be in writing, addressed to the Lender at its place of
business first indicated above or to the Guarantor at its address first
indicated above or at such other address as either party may give notice to the
other as herein provided. Any notice shall be by certified mail, return receipt
requested, and shall be effective upon mailing.
If hand delivered, the notice shall be effective upon receipt.
19. Obligations Absolute. The obligations of the Guarantor hereunder
shall be absolute.
20. Severability. If any term, provision, covenant or condition hereof
should be held by a court of competent jurisdiction to be invalid, void or
unenforceable, all other provisions, covenants and conditions hereof not held
invalid, void or unenforceable shall continue in full force and effect and shall
in no way be affected, impaired or invalidated thereby.
21. Payment Without Deduction. The Guarantor shall make all payments
required hereunder, free of any deductions, and without abatements, deduction or
setoff.
22. Waiver of Jury Trial. The Guarantor waives any right to a jury
trial in any litigation in any court with respect to, in connection with or
arising out of the Loan or any instrument or document delivered pursuant to the
Loan, or with respect to the validity, protection, interpretation, collection or
enforcement of the Loan.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the
date first written above.
ATTEST: GUARANTOR:
Xxxxxxxxx Instruments, Inc.
a New Jersey corporation
\S\ XXXXXXX X. XXXXXXXXX By: \S\ XXXXXXX XXXXXX
------------------------ ----------------------------
Xxxxxxx X. Xxxxxxxxx Name: Xxxxxxx Xxxxxx
Vice President Finance Title: Chairman & CEO
