1
Exhibit 4.5
[CORESTATES LOGO] GUARANTY
This Guaranty is made and entered into by the undersigned, and by each of
them if more than one (the "Guarantor"), for the benefit of CoreStates Bank
N.A.*, a national banking association (the "Bank").
1. OBLIGOR. The "Obligor" means the following person or entity, and if
more than one, any or all of the following persons or entities:
Red Xxxx Brewery & Pub Company
2. OBLIGATIONS. The "Obligations" means all existing and hereafter
incurred or arising indebtedness, obligations and liabilities of the Obligor to
the Bank whether absolute or contingent, direct or indirect and out of whatever
transactions arising, and includes without limitation, all matured and
unmatured indebtedness, obligations and liabilities of the Obligor under or in
connection with existing and future loans and advances evidenced by promissory
notes or otherwise, letters of credit, acceptances, all other extensions of
credit, repurchase agreements, security agreements, mortgages, overdrafts,
foreign exchange contracts and all other contracts for payment or performance,
indemnities, and all indebtedness, obligations and liabilities under any
guaranty or surety agreement, or as co-maker or co-obligor with any person for
any of the foregoing, including without limitation all interest, expenses,
costs (including collection costs) and fees (including reasonable attorney's
fees and prepayment fees) incurred, arising or accruing (whether prior or
subsequent to the filing of any bankruptcy petition by or against any Obligor)
under or in connection with any of the foregoing. If the term "Obligor"
includes more than one person or entity the Obligations shall include all
Obligations of any one or more of such persons or entities, whether such
Obligations are individual, joint, several or joint and several.
3. UNCONDITIONAL GUARANTY. In consideration of any existing Obligations
and any Obligations which may hereafter arise or be incurred, each Guarantor
intending to be legally bound, absolutely and unconditionally (and jointly and
severally if more than one) guaranties to Bank the payment, performance and
satisfaction when due (whether by stated maturity, demand, acceleration or
otherwise) of all Obligations. The obligations of the Guarantor hereunder shall
continue in full force and effect irrespective of the validity, legality or
enforceability of any agreements, notes or documents pursuant to which any of
the Obligations arise, or the existence, value or condition of any collateral
for any of the Obligations, or of any other guaranty of the Obligations, or any
other circumstance which might otherwise constitute a legal or equitable
discharge of a surety or guarantor.
4. COST OF ENFORCEMENT. Each Guarantor agrees (jointly and severally if
more than one) to pay Bank all costs and expenses (including reasonable
attorneys fees) at any time incurred by Bank in the enforcement of this
Guaranty against any Guarantor.
5. PAYMENT BY GUARANTOR. Payment by each Guarantor is due upon demand by
Bank and is payable in immediately available funds in lawful money of the
United States of America.
6. CONTINUING GUARANTY. This Guaranty shall continue in full force and
effect with respect to each Guarantor and may not be revoked until all existing
Obligations and all Obligations hereafter incurred or arising have been paid,
performed and satisfied in full. Notwithstanding the foregoing, any Guarantor
may by written notice to Bank, terminate its liability hereunder with respect
to Obligations which are not Pre-Termination Obligations as hereinafter
defined. Such notice shall be ineffective unless sent via certified mail to:
Special Notices Section-Loan Accounting Dept-CoreStates Bank, N.A. -
0000 Xxxxxx Xxxxxx - FC 1-3-18-64 - Xxxxxxxxxxxx, XX 00000
The burden of establishing (i) that Bank has received any termination notice
hereunder and (ii) the day on which such notice was received shall be on
Guarantor. In the event that Bank receives an effective termination notice from
Guarantor in accordance with the provisions of this paragraph, such termination
shall not affect Guarantor's liability (a) for Obligations incurred or arising
on or prior to the tenth day following receipt by Bank of such termination
notice, or any earlier day, on which Bank determines in good faith that the
appropriate Bank officers have actual knowledge of Bank's receipt of such
notice (the "Termination Effective Date"), (b) for Obligations which are
renewals, modifications, amendments, extensions, substitutions, replacements or
rollovers of, or which consist of accrued interest on, Obligations incurred or
arising on or prior to the Termination Effective Date, or (c) for Obligations
incurred or arising pursuant to a commitment existing on the Termination
Effective Date under which Bank was obligated to extend credit or make payments
to Obligor or for Obligor's account, all Obligations referred to in this
sentence being hereinafter collectively called "Pre-Termination Obligations".
It is understood that for purposes of this Guaranty and regardless of any
conflicting agreement between Bank and any Obligor, all payments on and other
reductions of the Obligations subsequent to the Termination Effective Date
(other than payments made by Guarantor in respect of the Guaranty itself)
shall, unless Bank elects otherwise in writing, be applied first to Obligations
other than Pre-Termination Obligations, and then to Pre-Termination
Obligations. It is further understood that the provisions of the preceding
sentence shall be applicable regardless of the amount of any new Obligations
incurred or arising subsequent to the Termination Effective Date.
7. WAIVERS AND CONSENTS BY GUARANTOR. Each Guarantor unconditionally
consents to, and waives as a defense to liability hereunder, each of the
following: (a) any waiver, inaction, delay or lack of diligence by Bank in
enforcing its rights against any Obligor or in any property, or the
unenforceability of any such rights, including any failure to perfect, protect
or preserve any lien or security interest which may be intended directly or
indirectly to secure any of the Obligations, and the absence of notice thereof
to any guarantor, (b) the absence of any notice of the incurrence or existence
of any Obligation, (c) any action, and the absence of notice thereof to any
Guarantor, taken by Bank or any Obligor with respect to any of the Obligations,
including any release, subordination or substitution of any collateral or
release, termination, compromise, modification or amendment of any instrument
executed by or applicable to any Obligor or of any claim, right or remedy
against any Obligor or any property, (d) any impairment of Guarantor's right to
reimbursement by way of subrogation, indemnification or contribution, (e) any
other action taken or omitted by Bank in good faith with respect to the
Obligations, (f) the absence or inadequacy of any formalities of every kind in
connection with enforcement of the Obligations, including presentment, demand,
notice and protest, and (g) the waiver of any rights of Bank under or any
action taken or omitted by Bank with respect to any other guaranty of the
Obligations.
8. OTHER AGREEMENTS BY GUARANTOR. Each Guarantor agrees that there shall
be no requirement that Bank document its acceptance of this Guaranty, evidence
its reliance thereon, or that Bank take any action against any person or any
property prior to taking action against any Guarantor. Each Guarantor further
agrees that Bank's rights and remedies hereunder shall not be impaired or
subject to any stay, suspension or other delay as a result of Obligor's
insolvency or as a result of any proceeding applicable to Obligor or Obligor's
property under any bankruptcy or insolvency law. Each Guarantor also agrees
that payments and other reductions on the Obligations may be applied to such of
the Obligations and in such order as Bank may elect.
9. SUBROGATION AND SIMILAR RIGHTS. No Guarantor will exercise any rights
with respect to Bank or any Obligor related to or acquired in connection with
or as a result of its making of this Guaranty which it may acquire by way of
subrogation, indemnification or contribution, by reason of payment made by it
hereunder or otherwise, until after the date on which all of the Obligations
shall have been satisfied in full. Until such time, any such rights against the
Obligor shall be fully subordinate in lien and payment to any claim in
connection with the Obligations which Bank now or hereafter has against the
Obligor. If any amount shall be paid to any Guarantor on account of such
subrogation, indemnification or contribution at any time when all of the
Obligations and all other expenses guaranteed pursuant hereto shall not have
been paid in full, such amount shall be held in trust for the benefit of
Bank, shall be segregated from the other funds of Guarantor and shall forthwith
be paid over to Bank to be applied in whole or in part by Bank against the
Obligations, whether matured or unmatured, in such order as the Bank shall
determine in its sole discretion. If Guarantor shall make payment to the Bank
of all or any portion of the Obligations and all of the Obligations shall be
paid in full, Guarantor's right of subrogation shall be without recourse to and
without any implied warranties by Bank and shall remain fully subject and
subordinate to Bank's right to collect any other amounts which may thereafter
become due to the Bank by the Obligor in connection with the Obligations.
--------------------------------------------------------------------------------
* CoreStates Bank, N.A. also conducts business as Philadelphia National Bank,
as Corestates First Pennsylvania Bank and as Corestates Xxxxxxxx Bank
2
jurisdiction over the Bank or any of its properties or (b) any settlement or
compromise in good faith with any such claimant (including Obligor), then and in
such event each Guarantor agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon the Guarantor, notwithstanding
any termination hereof or the cancellation of any note or other instrument
evidencing any Obligation, and each Guarantor shall remain liable to the Bank
hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by Bank.
11. SECURITY INTEREST. Each Guarantor hereby assigns to the Bank and
grants to the Bank a security interest in any balance or assets in any deposit
or other account of such Guarantor in or with the Bank whenever and so long as
any of the Obligations shall be outstanding and unpaid and agrees that the
security interest hereby granted shall be independent of the right of setoff.
12. FINANCIAL INFORMATION ON GUARANTOR. Each Guarantor hereby agrees to
provide the Bank with such information on the business affairs and financial
condition of such Guarantor as the Bank from time to time may reasonably request
and to notify the Bank of any change in the address of such Guarantor. In the
event that such Guarantor fails to comply with a request for information as
herein agreed, within ten (10) days after receipt of the request, such Guarantor
upon demand by the Bank agrees to purchase from the Bank without representation,
warranty or recourse the Obligations and to pay therefor the unpaid principal
amount of all such Obligations, including interest thereon to the date of
purchase.
13. EFFECT OF OTHER AGREEMENTS. The provisions of this Guaranty are
cumulative and concurrent with Bank's rights and remedies against Guarantor
under any existing or future agreement pertaining or evidencing any of the
Obligations. No such additional agreement shall be deemed a modification or
waiver hereof unless expressly so agreed by Bank in writing. If Bank holds any
other guaranty or surety agreement applicable to any of the Obligations, the
liability of each Guarantor hereunder shall be joint and several with each party
obligated on such other guaranty or surety agreement, unless otherwise agreed by
Bank in writing.
14. CONFESSION OF JUDGMENT; WARRANT OF ATTORNEY. Each Guarantor
irrevocably authorizes and empowers any attorney or any clerk of court of
record, upon the occurrence of a default or an Event of Default under or in
connection with any of the Obligations, or at any time thereafter, to appear for
and confess judgment against such Guarantor for the full amount of such
Guarantor's liability under paragraph 3 hereof, with or without declaration,
with costs of suit and release of errors, without stay of execution and with an
amount not to exceed the greater of five percent (5%) of the principal amount of
such judgment or $5,000 added for collection fees. If a copy of this Guaranty,
verified by affidavit by or on behalf of Bank shall have been filed in ??????
file the original of this Guaranty. The authority granted hereby shall not be
exhausted by the initial exercise thereof and ?????? time. There shall be
excluded from the lien of any judgment obtained solely pursuant to this
paragraph all improved real estate ?????? area identified by the Federal
Emergency Management Agency as having special flood hazards if the community in
which such area is located is participating in the National Flood Insurance
Program. Any such exclusion shall not affect any lien upon property not so
excluded.
15. GUARANTOR'S ADDRESS. Guarantor warrants and represents that the
address set forth below is Guarantor's correct mailing address and agrees
immediately to notify Bank in the event of any change therein.
16. MISCELLANEOUS. (a) No amendment of any provision of this Guaranty
shall be made effective unless it is in writing and signed by each Guarantor and
Bank, and no waiver of any provisions of this Guaranty, and no waiver or consent
to any departure by the Guarantor therefrom, shall be effective unless it is in
writing and signed by Bank, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given. (b)
Any provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or affecting the validity or enforceability of such provisions in any
other jurisdiction. (c) The obligations of each Guarantor hereunder shall not be
subject to any counterclaim, setoff, deduction or defense based upon any related
or unrelated claim which such Guarantor may now or hereafter have against Bank
or any Obligor, except payment of the Obligations, and shall not be affected by
any change in Obligor's legal status or ownership or by any change in corporate,
partnership or other organizational structure applicable to Obligor. (d) This
Guaranty shall (i) be binding on each Guarantor and its personal
representatives, estate, heirs, successors and assigns, and (ii) inure, together
with all rights and remedies of Bank hereunder, to the benefit of the Bank and
its successors, transferees and assigns. Notwithstanding the foregoing clause
(i), none of the rights or obligations of any Guarantor hereunder may be
assigned or otherwise transferred without the prior written consent of the Bank.
(e) This Guaranty shall be governed by and construed in accordance with the
internal laws, and not the law of conflicts, of the Commonwealth of
Pennsylvania.
17. CONSENT TO JURISDICTION AND VENUE. IN ANY LEGAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS GUARANTY
OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
IN ANY COUNTY IN THE COMMONWEALTH OF PENNSYLVANIA WHERE BANK MAINTAINS AN
OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE
LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH
UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE
DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE
PREPAID, TO EACH UNDERSIGNED PARTY.
18. WAIVER OF JURY TRIAL. EACH UNDERSIGNED PARTY HEREBY WAIVES, AND BANK
BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS GUARANTY OR
THE RELATIONSHIP EVIDENCED HEREBY, THIS PROVISION IS A MATERIAL INDUCEMENT FOR
BANK TO ENTER INTO, ACCEPT OR RELY UPON THIS GUARANTY.
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the 20th
day of August, 1996.
Red Xxxx Brewing Co
-------------------------------------------------------------------------------
NAME OF CORPORATION OR PARTNERSHIP GUARANTOR
XX Xxx 0000 Xxxxxxxxxxxx, XX 00000
-------------------------------------------------------------------------------
ADDRESS
By: /s/ Xxxxx X. Xxxx By:
------------------------------------- ---------------------------------
Xxxxx X. Xxxx, President
INDIVIDUALS OR PROPRIETORS SIGN BELOW
------------------------ --------------------------- -------------------------
WITNESS ADDRESS OF GUARANTOR SIGNATURE OF GUARANTOR
------------------------ --------------------------- -------------------------
WITNESS ADDRESS OF GUARANTOR SIGNATURE OF GUARANTOR
