Exhibit 10.25
XXXXX BROTHERS, INC.,
a Texas Corporation
GUARANTY
To: Fleet National Bank (as successor-in-interest to BankBoston, N.A., the
"Bank") as lender under the Amended and Restated Loan Agreement dated as of
December 11, 2003 between the Borrower (as herein defined) and the Bank
(the "Loan Agreement"):
1. Guaranty of Payment and Performance of Obligations. In consideration of
the Bank's extending credit or otherwise in its discretion giving time,
financial or banking facilities or accommodations to Dover Saddlery, Inc., a
Massachusetts corporation (the "Borrower"), an affiliate of the undersigned
Xxxxx Brothers, Inc., a corporation organized and existing under the laws of the
State of Texas (the "Guarantor"), the Guarantor hereby unconditionally
guarantees to the Bank that the Borrower will duly and punctually pay or
perform, at the place specified therefor, or if no place is specified, at the
Bank's head office at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, (i) all
Obligations under (and as defined in) the Loan Agreement; and (ii) without
limitation of the foregoing, all fees, costs and expenses incurred by the Bank
in attempting to collect or enforce any of the foregoing, accrued in each case
to the date of payment hereunder (collectively the "Obligations" and
individually an "Obligation"). This Guaranty is an absolute, unconditional and
continuing guaranty of the full and punctual payment and performance by the
Borrower of the Obligations and not of their collectibility only and is in no
way conditioned upon any requirement that the Bank first attempt to collect any
of the Obligations from the Borrower or resort to any security or other means of
obtaining payment of any of the Obligations which the Bank now has or may
acquire after the date hereof or upon any other contingency whatsoever. Upon any
default by the Borrower in the full and punctual payment and performance of the
Obligations, the liabilities and obligations of the Guarantor hereunder shall,
at the option of the Bank, become forthwith due and payable to the Bank without
demand or notice of any nature, all of which are expressly waived by the
Guarantor. Payments by the Guarantor hereunder may be required by the Bank on
any number of occasions.
2. Guarantor's Further Agreements to Pay. The Guarantor further agrees, as
the principal obligor and not as a guarantor only, to pay to the Bank forthwith
upon demand, in funds immediately available to the Bank, all reasonable costs
and expenses (including court costs and legal expenses) incurred or expended by
the Bank in connection with this Guaranty and the enforcement hereof, together
with interest on amounts recoverable under this Guaranty from the time such
amounts become due until payment at the rate which is at all times equal to 2%
above the then rate of interest applicable to Base Rate Loans under (and as
defined in) the Loan Agreement; provided that if such interest exceeds the
maximum amount permitted to be paid under applicable law, then such interest
shall be reduced to such maximum permitted amount.
3. Payments. The Guarantor covenants and agrees that the Obligations will
be paid strictly in accordance with their respective terms regardless of any
law, regulation or order now or hereinafter in effect in any jurisdiction
affecting any of such terms or the rights of the Bank with respect thereto.
Without limiting the generality of the foregoing, the Guarantor's obligations
hereunder with respect to any Obligation shall not be discharged by a payment in
a currency other than the currency in which the Obligation is denominated (the
"Obligation Currency") or at a place other than the place specified for the
payment of the Obligation, whether pursuant to a judgment or otherwise, to the
extent that the amount so paid on conversion to the Obligation Currency and
transferred to Boston, Massachusetts, U.S.A., under normal banking procedures
does not yield the amount of Obligation Currency due thereunder.
4. Taxes. All payments hereunder shall be made without any counterclaim or
set-off, free and clear of, and without reduction by reason of, any taxes,
levies, imposts, charges and withholdings, restrictions or conditions of any
nature ("Taxes"), which are now or may hereafter be imposed, levied or assessed
by any country, political subdivision or taxing authority on payments hereunder,
all of which will be for the account of and paid by the Guarantor. If for any
reason, any such reduction is made or any Taxes are paid by the Bank, the
Guarantor will pay to the Bank such additional amounts as may be necessary to
ensure that the Bank receives the same net amount which it would have received
had no reduction been made or Taxes paid.
5. Consent to Jurisdiction. The Guarantor hereby absolutely and irrevocably
consents and submits to the jurisdiction of the Courts of the Commonwealth of
Massachusetts and of any Federal Court located in the said Commonwealth in
connection with any actions or proceedings brought against the Guarantor by the
Bank arising out of or relating to this Guaranty. In any such action or
proceeding, the Guarantor hereby absolutely and irrevocably waives personal
service of any summons, complaint, declaration or other process and hereby
absolutely and irrevocably agrees that the service thereof may be made by
certified, registered or recorded first-class airmail directed to the Guarantor.
Anything hereinbefore to the contrary notwithstanding, the Bank may xxx the
Guarantor in the courts of any other country, State of the United States or
place where the Guarantor or any of the property or assets of the Guarantor may
be found or in any other appropriate jurisdictions.
6. Unlimited Liability of Guarantor. The liability of the Guarantor
hereunder shall be unlimited and, as to the Obligations of the Borrower, shall
be joint and several with the liability of each other party who has guaranteed
or who will guarantee the Obligations of the Borrower. The Bank has and shall
have the absolute right to enforce the liability of the Guarantor hereunder
without resort to any other right or remedy including any right or remedy under
any other guaranty, and the release or discharge of any guarantor of any
Obligations shall not affect the continuing liability of the Guarantor
hereunder.
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7. Effectiveness. The obligations of the Guarantor under this Guaranty
shall continue in full force and effect and shall remain in operation until all
of the Obligations shall have been paid in full or otherwise be fully satisfied,
and continue to be effective or be reinstated, as the case may be, if at any
time payment or other satisfaction of any of the Obligations is rescinded or
must otherwise be restored or returned upon the bankruptcy, insolvency, or
reorganization of the Borrower, or otherwise, as though such payment had not
been made or other satisfaction occurred. No invalidity, irregularity or
unenforceability by reason of applicable bankruptcy laws, or any other similar
law, or any law or order of any government or agency thereof purporting to
reduce, amend or otherwise affect, the Obligations, shall impair, affect, be a
defense to or claim against the obligations of the Guarantor under this
Guaranty.
8. Security; Set-off. The Guarantor grants to the Bank, as security for the
full and punctual payment and performance of the Guarantor's obligations
hereunder, a continuing lien on and security interest in all securities or other
property belonging to the Guarantor now or hereafter held by the Bank and in all
deposits and other sums credited by or due from the Bank to the Guarantor or
subject to withdrawal by the Guarantor. Regardless of the adequacy of any
collateral or other means of obtaining repayment of the Obligations, the Bank
may at any time and without notice to the Guarantor set off the whole or any
portion or portions of any or all such deposits and other sums credited by or
due from the Bank to the Guarantor or subject to withdrawal by the Guarantor
against amounts payable under this Guaranty, whether or not any other person or
persons could also withdraw money therefrom. Any deposits or other sums which
may at any time be credited to the Guarantor by or due to it from any other
financing institution which may invest or participate in the Obligations (each
such financing institution being referred to in this Section 8 as a
"Participant") may at any time be applied to or set off by such Participant
against the Guarantor's obligations hereunder. The Guarantor irrevocably invites
each financing institution which may consider becoming a Participant to rely on
the provisions contained in this Section 8 as making the Participant a creditor
of the Guarantor and agrees that its becoming a Participant shall constitute an
acceptance of the offer hereby made.
9. Freedom of Bank to Deal with Borrower and Other Parties. The Bank shall
be at liberty, without giving notice to or obtaining the assent of the Guarantor
and without relieving the Guarantor of any liability hereunder, to deal with the
Borrower and with each other party who now is or after the date hereof becomes
liable in any manner for any of the Obligations, in such manner as the Bank in
its sole discretion deems fit, and to this end the Guarantor gives to the Bank
full authority in its sole discretion to do any or all of the following things:
(a) extend credit, make loans and afford other financial accommodations to
Borrower at such times, in such amounts and on such terms as the Bank may
approve, (b) vary the terms and grant extensions of any present or future
indebtedness or obligation to the Bank of the Borrower or of any such other
party, (c) grant time, waivers and other indulgences in respect thereto, (d)
vary, exchange, release or discharge, wholly or partially, or delay in or
abstain from perfecting and enforcing any security or guaranty or other means of
obtaining payment of any of the Obligations which
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the Bank now has or may acquire after the date hereof, (e) accept partial
payments from the Borrower or any such other party, (f) release or discharge,
wholly or partially, any endorser or guarantor, and (g) compromise or make any
settlement or other arrangement with the Borrower or any such other party.
10. Unenforceability of Obligations Against the Borrower; Invalidity of
Security or Other Guaranties. If for any reason the Borrower has no legal
existence or is under no legal obligation to discharge any of the Obligations
undertaken or purported to be undertaken by it or on its behalf, or if any of
the moneys included in the Obligations have become irrecoverable from the
Borrower by operation of law or for any other reason, this Guaranty shall
nevertheless be binding on the Guarantor to the same extent as if the Guarantor
at all times had been the principal debtor on all such Obligations. This
Guaranty shall be in addition to any other guaranty or other security for the
Obligations, and it shall not be prejudiced or rendered unenforceable by the
invalidity of any such other guaranty or security.
11. Representations, Warranties and Covenants. The Guarantor hereby
represents, warrants, and covenants to and with the Bank that:
11.1. Corporate Status. The Guarantor is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has the corporate power and authority to
own its property, conduct its business as now being conducted and to make and
perform this Guaranty and the transactions contemplated hereby, and is duly
qualified to do business and in good standing as a foreign corporation in each
jurisdiction where the nature and extent of the business conducted by it, or
property owned by it, and applicable law require such qualification.
11.2. Authorization. The execution, delivery and performance of this
Guaranty have been duly authorized by all necessary corporate action and will
not violate any provision of law or any order of any court or governmental
agency or the articles of organization or other incorporation papers or bylaws
of the Guarantor, or conflict with, or result in a breach of, or constitute
(with or without notice or lapse of time or both) a default under, or result in
the creation of any security interest, lien, charge or encumbrance upon any
property or assets of the Guarantor, pursuant to any agreement, indenture or
other instrument to which it is a party or by which it may be bound.
11.3. Litigation. Except as disclosed to the Bank in writing prior to
the execution hereof, no action, suit, investigation or proceeding is pending or
known to be threatened against or affecting the Guarantor which, if adversely
determined, would have a material adverse effect upon its financial condition or
operations.
11.4. Absence of Default. The Guarantor is not in default under any
provision of its articles of organization or other incorporation papers, bylaws
or stock provisions or any amendment of any thereof or of any indenture relating
to borrowed
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money or agreement to which it is a party or by which it is bound or of any
other indenture or of any order, regulation, ruling or requirement of a court or
public body or authority by which it is bound.
11.5. No Consents Required. No license, consent or approval of, or
filing with, any governmental body or other regulatory authority is required for
the making and performance of this Guaranty or any instrument or transaction
contemplated herein. The Guarantor holds all certificates and authorizations of
all governmental agencies and authorities required by law to enable it to engage
in the business currently transacted by it.
11.6. Additional Representations and Warranties; Survival. In addition
to the foregoing representations and warranties, the Guarantor hereby makes each
of the representations and warranties set forth in Section 4 of the Loan
Agreement, which representations and warranties are incorporated herein by this
reference, as if each of such representations and warranties were made by the
Guarantor with each reference therein to the "Borrower" changed to the
"Guarantor", provided that with respect to any representations or warranties
which are in conflict with the specific representations and warranties made
herein, the representations and warranties made herein shall control. All
representations and warranties made herein shall survive until payment in full
of all of the Obligations.
11.7. Covenants. (a) The Guarantor will not at any time after the date
of this Guaranty create, assume, incur, or permit to exist, any mortgage, lien,
pledge, charge, security interest or other encumbrance of any kind
("Encumbrances") in respect of any of its property, assets, income or revenues
of any character, whether heretofore or hereafter acquired by it, except (i)
Encumbrances in favor of the Bank securing the payment or performance of all or
any part of the Obligations, whether existing on the date of this Guaranty or
arising from time to time thereafter and (ii) Encumbrances permitted under
Sections 5.6(iii), (iv) and (v) of the Loan Agreement. (b) The Guarantor will
not at any time cause or permit any of the charter or other incorporation
documents or by-laws of the Guarantor to be modified, amended or supplemented in
any respect whatever, except for any such modification or amendment as would be
permitted under the terms of Section 5.14 of the Loan Agreement, without the
express prior written agreement, consent or approval of the Bank. (c) The
Guarantor will not at any time after the date hereof engage, directly or
indirectly, in any business other than the business now conducted by the
Guarantor. (d) The Guarantor has, and will continue to have, no Indebtedness (as
defined in the Loan Agreement) except for the Indebtedness evidenced hereby or
otherwise permitted by Section 5.5 of the Loan Agreement to the extent
applicable. (e) The Guarantor hereby agrees to comply with and be bound by each
of the covenants set forth in Sections 5 and 6 of the Loan Agreement, which
covenants are incorporated herein by this reference, as if each of such
covenants were made by the Guarantor with each reference therein to the
"Borrower" changed to the "Guarantor", provided that with respect to any
covenants which are in conflict with the specific covenants made herein, the
covenants made herein shall control.
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12. Waivers by Guarantor. The Guarantor waives: notice of acceptance
hereof, notice of any action taken or omitted by the Bank in reliance hereon,
and any requirement that the Bank be diligent or prompt in making demands
hereunder, giving notice of any default by the Borrower or asserting any other
rights of the Bank hereunder. The Guarantor also irrevocably waives, to the
fullest extent permitted by law, all defenses that at any time may be available
in respect of the Guarantor's obligations hereunder by virtue of any homestead
exemption, statute of limitations, valuation, stay, moratorium law or other
similar law now or hereafter in effect.
13. No Contest with Bank. So long as any Obligation remains unpaid or
undischarged, the Guarantor will not, as a result of paying any sum recoverable
hereunder (whether or not demanded by the Bank) or by any means or on any other
ground, exercise any rights against the Borrower or claim any set-off or
counterclaim against the Borrower in respect of any liability of the Guarantor
to the Borrower or, in proceedings under applicable bankruptcy laws or
insolvency proceedings of any nature, prove in competition with the Bank in
respect of any payment hereunder or be entitled to have the benefit of any
counterclaim or proof of claim or dividend or payment by or on behalf of the
Borrower or the benefit of any other security for any Obligation which, now or
hereafter, the Bank may hold or in which it may have any share. The Guarantor
waives any benefit of and any right to participate in any collateral which may
be held by the Bank. The payment of any amounts due with respect to any
indebtedness of the Borrower now or hereafter held by the Guarantor which arises
as a result of the Guarantor's payment of any sum recoverable hereunder is
hereby subordinated to the prior payment in full of the Obligations. The
Guarantor agrees that after the occurrence of any default in the payment or
performance of the Obligations, the Guarantor will not demand, xxx for or
otherwise attempt to collect any such indebtedness of the Borrower to the
Guarantor until the Obligations shall have been paid in full. If,
notwithstanding the foregoing sentence, the Guarantor shall collect, enforce or
receive any amounts in respect of such indebtedness, such amounts shall be
collected, enforced and received by the Guarantor as trustee for the Bank and be
paid over to the Bank on account of the Obligations without affecting in any
manner the liability of the Guarantor under the other provisions of this
Guaranty.
14. Demands and Notices. Any demand on or notice to the Guarantor shall be
in writing and shall be effective when handed to the Guarantor or left at or
mailed or sent by telecopy or courier to the Guarantor's usual or last-known
address.
15. Amendments, Waivers, Etc. No provision of this Guaranty can be changed,
waived, discharged or terminated except by an instrument in writing signed by
the Bank and the Guarantor expressly referring to the provision of this Guaranty
to which such instrument relates; and no such waiver shall extend to, affect or
impair any right with respect to any Obligation which is not expressly dealt
with therein. No course of dealing or delay or omission on the part of the Bank
in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto.
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16. Application of Funds. All payments by the undersigned pursuant to this
Guaranty shall be made to the Bank and, after the payment of all expenses as
provided in this Guaranty and the Obligations, shall be applied to the payment
of the Obligations until the same are paid in full.
17. Further Assurances. The Guarantor at its sole cost and expense agrees
to do all such things and execute, acknowledge and deliver all such documents
and instruments as the Bank from time to time may reasonably request in order to
give full effect to this Guaranty and to perfect and preserve the rights and
powers of the Bank hereunder.
18. Miscellaneous Provisions. This Guaranty is intended to take effect as a
sealed instrument to be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts and shall inure to the benefit of the Bank and
its successors in title and assigns, and shall be binding on the Guarantor and
the Guarantor's successors in title, assigns and legal representatives. The
rights and remedies herein provided are cumulative and not exclusive of any
remedies provided by law or any other agreement. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms defined.
19. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY WAIVES TRIAL BY
JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR
ARISING OUT OF THIS GUARANTY, THE OBLIGATIONS, OR ANY INSTRUMENT OR DOCUMENT
DELIVERED PURSUANT HERETO OR THERETO, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER
ARISING, AMONG THE GUARANTOR, THE BORROWER AND THE BANK. THIS WAIVER OF JURY
TRIAL SHALL BE EFFECTIVE FOR EACH AND EVERY DOCUMENT EXECUTED BY THE GUARANTOR
OR THE BANK AND DELIVERED TO THE BANK OR THE GUARANTOR, AS THE CASE MAY BE,
WHETHER OR NOT SUCH DOCUMENTS SHALL CONTAIN SUCH A WAIVER OF JURY TRIAL. THE
GUARANTOR CONFIRMS THAT THE FOREGOING WAIVERS ARE INFORMED AND FREELY MADE.
[Signature on next page]
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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the 11th
day of December __, 2003.
(Corporate Seal)
XXXXX BROTHERS, INC.
By: /s/ Xxxxxxx X. Day
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Name: Xxxxxxx X. Day
Title: President
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