CONTINUING AND UNCONDITIONAL GUARANTY
Exhibit 4.2
BORROWER: XXXXXX VACUUM AND HEAT TRANSFER
TECHNOLOGY (SUZHOU) CO., LTD.
TECHNOLOGY (SUZHOU) CO., LTD.
GUARANTOR: XXXXXX CORPORATION
CONTINUING AND UNCONDITIONAL GUARANTY
To: Bank of America, N.A.
1. The Guaranty. For valuable consideration, the undersigned (“Guarantor”) hereby
unconditionally guarantees and promises to pay promptly to Bank of America, N.A., its subsidiaries
and affiliates (collectively, “Bank”), or order, in lawful money of the United States, any and all
Indebtedness of Xxxxxx Vacuum and Heat Transfer Technology (Suzhou) Co., Ltd. (“Borrower”) to Bank
when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter.
The liability of Guarantor under this Guaranty is not limited as to the principal amount of the
Indebtedness guaranteed and includes, without limitation, liability for all interest, fees,
indemnities (including, without limitation, hazardous waste indemnities), and other costs and
expenses relating to or arising out of the Indebtedness and for all swap, option, or forward
obligations now or hereafter owing from Borrower to Bank. The liability of Guarantor is continuing
and relates to any Indebtedness, including that arising under successive transactions which shall
either continue the Indebtedness or from time to time renew it after it has been satisfied. This
Guaranty is cumulative and does not supersede any other outstanding guaranties, and the liability
of Guarantor under this Guaranty is exclusive of Guarantor’s liability under any other guaranties
signed by Guarantor. If multiple individuals or entities sign this Guaranty, their obligations
under this Guaranty shall be joint and several.
2. Definitions.
(a) “Borrower” shall mean the individual or the entity named in Paragraph 1 of this
Guaranty and, if more than one, then any one or more of them.
(b) “Guarantor” shall mean the individual or the entity signing this Guaranty and, if
more than one, then any one or more of them.
(c) “Indebtedness” shall mean any and all debts, liabilities, and obligations of
Borrower to Bank, now or hereafter existing, whether voluntary or involuntary and however
arising, whether direct or indirect or acquired by Bank by assignment, succession, or
otherwise, whether due or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined, held or to be held by Bank for its own account or as agent for
another or others, whether Borrower may be liable individually or jointly with others,
whether recovery upon such debts, liabilities, and obligations may be or hereafter become
barred by any statute of limitations, and whether such debts, liabilities, and obligations
may be or hereafter become otherwise unenforceable. Indebtedness includes, without
limitation, any and all obligations of Borrower to Bank for reasonable attorneys’ fees and
all other out of pocket costs and expenses incurred by Bank in the collection or enforcement
of any debts, liabilities, and obligations of Borrower to Bank. Indebtedness also includes,
without limitation, all obligations of Borrower arising under any interest rate, credit,
commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency
swap, cross currency rate swap, currency option, securities puts, calls, collars, options or
forwards or any combination of, or option with respect to, these or similar transactions now
or hereafter entered into between Borrower and Bank.
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(d) “Loan Documents” shall mean loan agreements between Borrower and Bank, promissory
notes from Borrower in favor of Bank, and all other agreements, documents, and instruments
evidencing any of the Indebtedness, and deeds of trust, mortgages, security agreements, and
other agreements, documents, and instruments executed by Borrower in connection with such
loan agreements, promissory notes, and other agreements, documents, and instruments
evidencing any of the Indebtedness, all as now in effect and as hereafter amended, restated,
renewed, or superseded.
3. Obligations Independent. The obligations hereunder are independent of the
obligations of Borrower or any other guarantor, and a separate action or actions may be brought and
prosecuted against Guarantor whether action is brought against Borrower or any other guarantor or
whether Borrower or any other guarantor be joined in any such action or actions. Anyone executing
this Guaranty shall be bound by its terms without regard to execution by anyone else.
4. Rights of Bank. Guarantor authorizes Bank, without notice or demand and without
affecting its liability hereunder, from time to time to:
(a) renew, compromise, extend, accelerate, or otherwise change the time for payment,
or otherwise change the terms, of the Indebtedness or any part thereof, including increase
or decrease of the rate of interest thereon, or otherwise change the terms of any Loan
Documents;
(b) receive and hold security for the payment of this Guaranty or any Indebtedness and
exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any such
security;
(c) apply such security and direct the order or manner of sale thereof as Bank in its
discretion may determine;
(d) release or substitute any Guarantor or any one or more of any endorsers or other
guarantors of any of the Indebtedness; and
(e) permit the Indebtedness to exceed Guarantor’s liability under this Guaranty, and
Guarantor agrees that any amounts received by Bank from any source other than Guarantor
shall be deemed to be applied first to any portion of the Indebtedness not guaranteed by
Guarantor.
5. Guaranty to be Absolute. Guarantor agrees that until the Indebtedness has been
paid in full and any commitments of Bank or facilities provided by Bank with respect to the
Indebtedness have been terminated, Guarantor shall not be released by or because of the taking, or
failure to take, any action that might in any manner or to any extent vary the risks of Guarantor
under this Guaranty or that, but for this paragraph, might discharge or otherwise reduce, limit, or
modify Guarantor’s obligations under this Guaranty. Guarantor waives and surrenders any defense to
any liability under this Guaranty based upon any such action, including but not limited to any
action of Bank described in the immediately preceding paragraph of this Guaranty. It is the
express intent of Guarantor that Guarantor’s obligations under this Guaranty are and shall be
absolute and unconditional.
6. Guarantor’s Waivers of Certain Rights and Certain Defenses. Guarantor waives:
(a) any right to require Bank to proceed against Borrower, proceed against or exhaust
any security for the Indebtedness, or pursue any other remedy in Bank’s power whatsoever;
(b) any defense arising by reason of any disability or other defense of Borrower, or
the cessation from any cause whatsoever of the liability of Borrower;
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(c) any defense based on any claim that Guarantor’s obligations exceed or are more
burdensome than those of Borrower; and
(d) the benefit of any statute of limitations affecting Guarantor’s liability
hereunder.
No provision or waiver in this Guaranty shall be construed as limiting the generality of any other
waiver contained in this Guaranty.
7. Waiver of Subrogation. Until the Indebtedness has been paid in full and any
commitments of Bank or facilities provided by Bank with respect to the Indebtedness have been
terminated, even though the Indebtedness may be in excess of Guarantor’s liability hereunder,
Guarantor agrees not to exercise any right of subrogation, reimbursement, indemnification, and
contribution (contractual, statutory, or otherwise) including, without limitation, any claim or
right of subrogation under the Bankruptcy Code (Title 11, United States Code) or any successor
statute, arising from the existence or performance of this Guaranty, and Guarantor agrees not to
exercise any right to enforce any remedy that Bank now has or may hereafter have against Borrower,
and waives any benefit of, and any right to participate in, any security now or hereafter held by
Bank.
8. Waiver of Notices. Guarantor waives all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor, notices of intent to
accelerate, notices of acceleration, notices of any suit or any other action against Borrower or
any other person, any other notices to any party liable on any Loan Document (including Guarantor),
notices of acceptance of this Guaranty, notices of the existence, creation, or incurring of new or
additional Indebtedness to which this Guaranty applies or any other Indebtedness of Borrower to
Bank, and notices of any fact that might increase Guarantor’s risk.
9. Security. To secure all of Guarantor’s obligations hereunder, Guarantor assigns
and grants to Bank a security interest in all moneys, securities, and other property of Guarantor
now or hereafter in the possession of Bank, all deposit accounts of Guarantor maintained with Bank,
and all proceeds thereof. Upon default or breach of any of Guarantor’s obligations to Bank
hereunder, Bank may apply any deposit account to reduce the Indebtedness, and may foreclose any
collateral as provided in the Uniform Commercial Code and in any security agreements between Bank
and Guarantor.
10. Subordination. Any obligations of Borrower to Guarantor, now or hereafter
existing, including but not limited to any obligations to Guarantor as subrogee of Bank or
resulting from Guarantor’s performance under this Guaranty, are hereby subordinated to the
Indebtedness. In addition to Guarantor’s agreement in Section 7 above regarding rights of
subrogation as set forth in this Guaranty with respect to any obligations of Borrower to Guarantor
as subrogee of Bank, Guarantor agrees that, if Bank so requests, Guarantor shall not demand, take,
or receive from Borrower, by setoff or in any other manner, payment of any other obligations of
Borrower to Guarantor until the Indebtedness has been paid in full and any commitments of Bank or
facilities provided by Bank with respect to the Indebtedness have been terminated. If any payments
are received by Guarantor in violation of such agreement, such payments shall be received by
Guarantor as trustee for Bank and shall be paid over to Bank on account of the Indebtedness, but
without reducing or affecting in any manner the liability of Guarantor under the other provisions
of this Guaranty. Any security interest, lien, or other encumbrance that Guarantor may now or
hereafter have on any property of Borrower is hereby subordinated to any security interest, lien,
or other encumbrance that Bank may have on any such property.
11. Revocation of Guaranty.
(a) This Guaranty may be revoked at any time by Guarantor in respect to future
transactions, unless there is a continuing consideration as to such transactions that
Guarantor does not renounce. Such revocation shall be effective upon actual receipt by
Bank, at the address shown below or at such other address as may have been provided to
Guarantor by
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Bank, of written notice of revocation. Revocation shall not affect any of Guarantor’s
obligations or Bank’s rights with respect to transactions committed or entered into prior to
Bank’s receipt of such notice, regardless of whether or not the Indebtedness related to such
transactions, before or after revocation, has been incurred, renewed, compromised, extended,
accelerated, or otherwise changed as to any of its terms, including time for payment or
increase or decrease of the rate of interest thereon, and regardless of any other act or
omission of Bank authorized hereunder. Revocation by Guarantor shall not affect any
obligations of any other guarantor.
(b) In the event of the death of a Guarantor, the liability of the estate of the
deceased Guarantor shall continue in full force and effect as to (i) the Indebtedness
existing at the date of death, and any renewals or extensions thereof, and (ii) loans or
advances made to or for the account of Borrower after the date of the death of the deceased
Guarantor pursuant to a commitment made by Bank to Borrower prior to the date of such death.
As to all surviving Guarantors, this Guaranty shall continue in full force and effect after
the death of a Guarantor, not only as to the Indebtedness existing at that time, but also as
to the Indebtedness thereafter incurred by Borrower to Bank.
(c) Guarantor acknowledges and agrees that this Guaranty may be revoked only in
accordance with the foregoing provisions of this paragraph and shall not be revoked simply
as a result of any change in name, location, or composition or structure of Borrower, the
dissolution of Borrower, or the termination, increase, decrease, or other change of any
personnel or owners of Borrower.
12. Reinstatement of Guaranty. If this Guaranty is revoked, returned, or canceled,
and subsequently any payment or transfer of any interest in property by Borrower to Bank made
before such revocation, return or cancellation is rescinded or must be returned by Bank to
Borrower, this Guaranty shall be reinstated with respect to any such payment or transfer,
regardless of any such prior revocation, return, or cancellation.
13. Stay of Acceleration. In the event that acceleration of the time for payment of
any of the Indebtedness is stayed upon the insolvency, bankruptcy, or reorganization of Borrower or
otherwise, all such Indebtedness guaranteed by Guarantor shall nonetheless be payable by Guarantor
immediately if requested by Bank.
14. Information Relating to Borrower. Guarantor acknowledges and agrees that it
shall have the sole responsibility for, and has adequate means of, obtaining from Borrower such
information concerning Borrower’s financial condition or business operations as Guarantor may
require, and that Bank has no duty, and Guarantor is not relying on Bank, at any time to disclose
to Guarantor any information relating to the business operations or financial condition of
Borrower.
15. Borrower’s Authorization. Where Borrower is a corporation, partnership, or
limited liability company, it is not necessary for Bank to inquire into the powers of Borrower or
of the officers, directors, partners, members, managers, or agents acting or purporting to act on
its behalf, and any Indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder, subject to any limitations on Guarantor’s liability set forth
herein.
16. Foreign Currency.
(a) If any claim arising under or related to this Guaranty is reduced to judgment denominated
in a currency (the “Judgment Currency”) other than the currency or currencies in which the
guaranteed Indebtedness is denominated (individually, an “Obligation Currency”), the judgment shall
be for the equivalent in the Judgment Currency of the amount of the claim denominated in each
Obligation Currency included in the judgment, determined as of the date of judgment. The
equivalent of any Obligation Currency amount in any Judgment Currency shall be calculated at the
spot rate for the purchase of the Obligation Currency with the Judgment Currency quoted by Bank in
the place of Bank’s choice at or about 8:00 a.m. on the date for determination specified above.
Guarantor shall indemnify
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Bank and hold Bank harmless from and against all loss or damage resulting from any change in
exchange rates between the date any claim is reduced to judgment and the date of payment thereof by
Guarantor.
(b) The obligations hereunder shall not be affected by any acts of any governmental authority
affecting Borrower including, without limitation, any restrictions on the conversion of currency or
repatriation or control of funds or any total or partial expropriation of Borrower’s property, or
by economic, political, regulatory, or other events in the countries where Borrower is located. If
Bank so notifies Guarantor in writing, at Bank’s sole and absolute discretion, payments under this
Guaranty shall be made in the U.S. Dollar equivalent of any guaranteed Indebtedness that is
denominated in an Obligation Currency, determined as of the date payment is made.
17. Remedies. If Guarantor fails to fulfill its duty to pay all Indebtedness
guaranteed hereunder, Bank shall have all of the remedies of a creditor and, to the extent
applicable, of a secured party, under all applicable law. Without limiting the foregoing, Bank
may, at its option and without notice or demand:
(a) declare any Indebtedness due and payable at once;
(b) take possession of any collateral pledged by Borrower or Guarantor, wherever
located, and sell, resell, assign, transfer, and deliver all or any part of the collateral
at any public or private sale or otherwise dispose of any or all of the collateral in its
then condition, for cash or on credit or for future delivery, and in connection therewith
Bank may impose reasonable conditions upon any such sale. Further, Bank, unless prohibited
by law the provisions of which cannot be waived, may purchase all or any part of the
collateral to be sold, free from and discharged of all trusts, claims, rights of redemption
and equities of Borrower or Guarantor whatsoever. Guarantor acknowledges and agrees that
the sale of any investment property collateral through any nationally recognized
broker-dealer, investment banker, or any other method common in the securities industry
shall be deemed a commercially reasonable sale under the Uniform Commercial Code or any
other equivalent statute or federal law, and expressly waives notice thereof except as
provided herein; and
(c) set off against any or all liabilities of Guarantor all money owed by Bank or any
of its agents or affiliates in any capacity to Guarantor, whether or not due, and also set
off against all other liabilities of Guarantor to Bank all money owed by Bank in any
capacity to Guarantor. If exercised by Bank, Bank shall be deemed to have exercised such
right of setoff and to have made a charge against any such money immediately upon the
occurrence of such default although made or entered on the books subsequent thereto.
20. Notices. All notices required under this Guaranty shall be personally delivered
or sent by first class mail, postage prepaid, or by overnight courier, to the addresses on the
signature page of this Guaranty, or sent by facsimile to the fax numbers listed on the signature
page, or to such other addresses as Bank and Guarantor may specify from time to time in writing.
Notices sent by (a) first class mail shall be deemed delivered on the earlier of actual receipt or
on the fourth business day after deposit in the U.S. mail, postage prepaid, (b) overnight courier
shall be deemed delivered on the next business day, and (c) telecopy shall be deemed delivered when
transmitted.
21. Successors and Assigns. This Guaranty (a) binds Guarantor and Guarantor’s
executors, administrators, successors, and assigns, provided that Guarantor may not assign its
rights or obligations under this Guaranty without the prior written consent of Bank, and (b) inures
to the benefit of Bank and Bank’s indorsees, successors, and assigns. Bank may, without notice to
Guarantor and without affecting Guarantor’s obligations hereunder, sell, assign, grant
participations in, or otherwise transfer to any other person, firm, or corporation the Indebtedness
and this Guaranty, in whole or in part. Guarantor agrees that Bank may disclose to any assignee or
purchaser, or any prospective assignee or purchaser, of all or part of the Indebtedness any and all
information in Bank’s possession concerning Guarantor, this Guaranty, and any security for this
Guaranty.
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22. Amendments, Waivers, and Severability. No provision of this Guaranty may be
amended or waived except in writing. No failure by Bank to exercise, and no delay in exercising,
any of its rights, remedies, or powers shall operate as a waiver thereof, and no single or partial
exercise of any such right, remedy, or power shall preclude any other or further exercise thereof
or the exercise of any other right, remedy, or power. The unenforceability or invalidity of any
provision of this Guaranty shall not affect the enforceability or validity of any other provision
of this Guaranty.
23. Costs and Expenses. Guarantor agrees to pay all reasonable attorneys’ fees, and
all other out of pocket costs and expenses that may be incurred by Bank (a) in the enforcement of
this Guaranty or (b) in the preservation, protection, or enforcement of any rights of Bank in any
case commenced by or against Guarantor or Borrower under the Bankruptcy Code (Title 11, United
States Code) or any similar or successor statute.
24. Governing Law and Jurisdiction. This Guaranty shall be governed by and construed
and enforced in accordance with federal law and the law of the State of New York. Jurisdiction and
venue for any action or proceeding to enforce this Guaranty shall be the forum appropriate for such
action or proceeding against Borrower, to which jurisdiction Guarantor irrevocably submits and to
which venue Guarantor waives to the fullest extent permitted by law any defense asserting an
inconvenient forum in connection therewith. It is provided, however, that if Guarantor owns
property in another state, notwithstanding that the forum for enforcement action is elsewhere, Bank
may commence a collection proceeding in any state in which Guarantor owns property for the purpose
of enforcing provisional remedies against such property. Service of process by Bank in connection
with such action or proceeding shall be binding on Guarantor if sent to Guarantor by registered or
certified mail at its address specified below.
25. Enforcement/Waiver of Jury Trial. GUARANTOR AGREES THAT ANY SUIT FOR THE ENFORCEMENT
OF THIS GUARANTY MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX LOCATED IN MONROE COUNTY OR
ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON GUARANTOR BY MAIL AT THE ADDRESS SET FORTH FOR
NOTICES GIVEN BELOW. GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT FORUM.
GUARANTOR AND BANK (BY ACCEPTANCE OF THIS GUARANTY) MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENTS OR ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING
WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF BANK
RELATING TO THE ADMINISTRATION OR ENFORCEMENT OF THE GUARANTY, AND AGREE THAT NEITHER PARTY WILL
SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS
NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, GUARANTOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL , EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR
ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. GUARANTOR CERTIFIES THAT NO
REPRESENTATIVE, AGENT, OR ATTORNEY OF BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BANK WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER CONSTITUTES A
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MATERIAL INDUCEMENT FOR BANK TO ACCEPT THIS GUARANTY AND MAKE THE LOAN GUARANTEED HEREBY.
26. FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES
THAT: (A) THIS DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN PARTIES WITH RESPECT TO THE SUBJECT
MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN
OUTLINE OF TERMS AND CONDITIONS RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH COMMITMENT
LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS EXPRESSLY PROVIDES TO THE
CONTRARY, (C) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (D) THIS DOCUMENT MAY
NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
UNDERSTANDINGS OF THE PARTIES.
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The parties executed this agreement as of Sept. 20, 2006, intending to create an instrument
executed under seal.
| XXXXXX CORPORATION | ||
| By: Xxx Xxxxxx (Seal) Printed Name: Xxx Xxxxxx Title: Vice President |
||
Address for notices to Bank:
|
Address for notices to Guarantor: | |
Xxx Xxxx Xxxxxx Xxxxxxxxx, Xxx Xxxx 00000 Facsimile:000-000-0000 |
00 Xxxxxxxx Xxxxxx Xxxxxxx, Xxx Xxxx 00000 Facsimile: 000-000-0000 |
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