EXHIBIT 10.50
April 1,1999
To: THE CIT GROUP/BUSINESS CREDIT, INC.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
GUARANTY
Re: Uniroyal Engineered Products, Inc.
(the "Company")
Address: 0 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Gentlemen:
Reference is made to that certain Financing Agreement dated June 5,
1996, as amended (herein the "Agreement") between you and the above-named
Company. The undersigned (herein "Guarantor") hereby unconditionally guarantees
and agrees to be liable for the full and indefeasible payment and performance
when due of all now existing and future indebtedness, obligations or liabilities
of the Company to you, howsoever arising, whether direct or indirect, absolute
or contingent, secured or unsecured, whether arising under the Agreement as now
written or as amended or supplemented hereafter, or by operation of law or
otherwise, including, without limitation, all Obligations (as defined in the
Agreement) of the Company to you. Further Guarantor agrees to pay to you on
demand the amount of all expenses (including reasonable attorney's fees)
incurred by you in collecting or attempting to collect any of the Company's
obligations to you, whether from the Company, or from any other obligor, or from
the Guarantor, or in realizing upon any collateral; and agrees to pay any
interest at the highest lawful rate on all amounts payable to you hereunder,
even if such amount cannot be collected from the Company. (All of the
aforementioned obligations, liabilities, expenses and interest are hereinafter
collectively called the "Obligations"). To the extent you receive payment on
account of Obligations guaranteed hereby, which payment is thereafter set aside
or required to be repaid by you in whole or in part, then, to the extent of any
sum not finally retained by you (regardless of whether such sum is recovered
from you by the Company, its trustee, or any other party acting for, on behalf
of or through the Company or its representative), the Guarantor's obligation to
you under this Guaranty, as amended, modified or supplemented, shall remain in
full force and effect (or be reinstated) until the Guarantor has made payment to
you therefor, which payment shall be due upon demand.
This Guaranty is executed as an inducement to you to make loans or
advances to the Company or otherwise to extend credit or financial
accommodations to the Company, or to enter into or continue a financing
arrangement with the Company, and is executed in consideration of your doing or
having done any of the foregoing. Guarantor agrees that any of the foregoing
shall be done or extended by you in your sole discretion, and shall be deemed to
have been done or extended by you in consideration of and in reliance upon the
execution of this Guaranty, but that nothing herein shall obligate you to do any
of the foregoing.
Notice of acceptance of this Guaranty, the making of loans or advances,
or the extension of credit under the Agreement, the amendment, execution or
termination of the Agreement or any other agreements in connection therewith,
and presentment, demand, protest, notice of protest, notice of non-payment and
all other notices to which the Guarantors may be entitled (whether under this
Guaranty or the Agreement), and your reliance on this Guaranty are hereby
waived. Guarantor also waives notice of; changes in terms or extensions of the
time of payment, the taking and releasing of collateral or guarantees and the
settlement, compromise or release of any Obligations, and agree that, as to the
Guarantor, the amount of the Obligations shall not be diminished by any of the
foregoing. Guarantor also agrees that you need not attempt to collect any
Obligations from any other obligor or to realize upon any collateral, but may
require the Guarantor to make immediate payment of Obligations to you when due
or at any time thereafter. You shall not be liable for failure to collect
Obligations or to realize upon any collateral or security therefor, or any part
thereof, or for any delay in so doing, nor shall you be under any obligation to
take any action whatsoever with regard thereto.
This Guaranty is absolute, unconditional and continuing, regardless of
the validity, regularity or enforceability of any of the Obligations or the fact
that a security interest or lien in any collateral or security therefor may not
be enforceable by you or may otherwise be subject to equities or defenses or
prior claims in favor of others or may be invalid or defective in any way and
for any reason, including any action, or failure to act, on your part. Payment
by the Guarantor shall be made to you at your office from time to time on demand
as Obligations become due, and one or more successive or concurrent actions may
be brought hereon against the Guarantor either in the same action or in separate
actions. In the event any claim or action, or action on any judgment, based on
this Guaranty, is made or brought against the Guarantor, the Guarantor agrees
not to assert against you any set-off or counterclaim which the Company may
have, and, further, the Guarantor agrees not to deduct, set-off, or seek to
counterclaim for or recoup, any amounts which are or may be owed by you to the
Guarantor, or for any loss of contribution from any other guarantor.
Furthermore, in any litigation based on the Guaranty in which you and the
Guarantor shall be adverse parties, the Guarantor hereby waives trial by jury
and waive the right to interpose any defense based upon any Statute of
Limitations or any claim of laches and waive the performance of each and every
condition precedent to which the Guarantor might otherwise be entitled by law.
The Guarantor hereby consents to the in personam jurisdiction of the courts of
the State of New York. In the event that you bring any action or suit in any
court of record of New York State or the Federal Government to enforce any or
all liabilities of the Guarantor hereunder, service of process may be made on
the Guarantor by mailing a copy of the summons to the Guarantor at the address
below set forth.
All sums at any time to the credit of the Guarantor and any property of
the Guarantor on which you at any time have a lien or security interest, or of
which you at any time have possession, shall secure payment and performance of
all Obligations and any and all other obligations of the Guarantor to you
however arising. The Guarantor shall have no right of subrogation,
indemnification or recourse to any Obligations or collateral or guarantees
therefor, or to any assets of the Company.
Upon the occurrence of any of the following events:
(1) any Event of Default under, or termination of, the Agreement;
(2) failure of any of the Guarantor to observe or perform any
agreements, warranties or covenants contained herein; or
(3) (a) dissolution or cessation of the Guarantor's business;
(b) calling of a meeting of the creditors of the Guarantor for
the purposes of compromising the debts of such Guarantor;
(c) failure of the Guarantor to meet its debts as they mature;
(d) commencement by the Guarantor of any bankruptcy,
insolvency, arrangement, reorganization, receivership or
similar proceeds under federal or state law (herein
collectively "Insolvency Proceeding");
(e) commencement of any Insolvency Proceeding against the
Guarantor, then, in the case of event (1) above the liability
of the Guarantor for the entire Obligations shall mature, and
in the case of events (2) and (3)(a) through (e) above the
liability of the Guarantor with respect to which such event
relates for the entire Obligations shall mature even if the
liability of the Company therefor does not.
This Guaranty may be terminated as to the Guarantor only as of any
Anniversary Date (as defined in the Agreement) and then only upon actual receipt
by one of your officers of at least ninety (90) days prior written notice of
termination sent by registered or certified mail; provided however, that the
Guarantor so terminating this Guaranty shall remain bound hereunder, and this
Guaranty shall continue in full force and effect, with respect to any and all
Obligations created or arising prior to the effective date of such termination
and with respect to any and all extensions, renewals or modifications of said
pre-existing Obligations. This is a continuing agreement and written notice as
above provided shall be the only means of termination, notwithstanding the fact
that for certain periods of time there may be no Obligations owing to you by the
Company.
Your books and records showing the account between you and the Company
shall be admissible in evidence in any action or proceeding as prima facie proof
of the items therein set forth. Your monthly statements rendered to the Company
shall be binding upon the Guarantor (whether or not the Guarantor received
copies thereof) and shall constitute an account stated between you and the
Company unless you shall have received a written statement of the Company's
exceptions within thirty (30) days after the statement was mailed to the
Company.
The Guarantor expressly waives any and all rights of subrogation,
reimbursement, indemnity, exoneration, contribution or any other claim which it
may now or hereafter have against the Company or any other person directly or
contingently liable for the Obligations guaranteed hereunder, or against or with
respect to the Company's property (including, without limitation, property
collateralizing its Obligations to you) arising from the existence or
performance of this Guaranty.
This Guaranty embodies the whole agreement of the parties and may not
be modified except in writing, and no course of dealing between you and the
Guarantor shall be effective to change or modify this Guaranty. Your failure to
exercise any right hereunder shall not be construed as a waiver of the right to
exercise the same or any other right at any other time and from time to time
thereafter, and such rights shall be considered as cumulative rather than
alternative. No knowledge of any breach or other nonobservance by any of the
Guarantors of the terms and provisions of this Guaranty shall constitute a
waiver thereof, nor a waiver of any obligations to be performed by the Guarantor
hereunder.
This Guaranty may be assigned by you and shall be for your benefit and
for the benefit of any of your assignees or transferees, and shall cover any
Obligations owed to you at the time of assignment or transfer as well as any and
all future Obligations, loans, advances or extensions of credit made to the
Company by, or otherwise owed by the Company to, such assignee or transferee.
This instrument is executed and given in addition to, and not in substitution,
reduction, replacement, or satisfaction of, any other endorsements or guarantees
of the Obligations, now existing or hereafter executed by any or all of the
Guarantors or others in your favor.
When used in this agreement, all pronouns shall, wherever applicable,
be deemed to include the singular and plural as well as the masculine, feminine,
and neuter genders. This agreement shall inure to the benefit of you, your
successors and assigns and any parent, subsidiary or affiliate of yours; shall
be binding upon the Guarantor and upon the successors and assigns of the
Guarantor; and shall pertain to the Company and its successors and assigns.
This Guaranty may be executed in any number of counterparts, each of
which when so executed shall be deemed an original and such counterparts shall
together constitute but one and the same document.
This Guaranty shall be governed by and construed in accordance with the
laws of the State of New York.
IN WITNESS WHEREOF the Guarantor has executed and delivered this
Guaranty effective as of the date above set forth.
UNIROYAL TECHNOLOGY CORPORATION
By:/s/ Xxxxxx X. Xxxxx
Title: President
