Exhibit 10.74
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of November 29, 2001, made by VYTECH
HOLDINGS, INC., a Delaware corporation ("Guarantor") and XXXXXXXX X. XXXXX, XX.,
in favor of WESTPOINT XXXXXXX INC., a Delaware corporation ("WXS").
W I T N E S S E T H:
WHEREAS, on even date herewith Guarantor did enter into a certain
letter agreement with WXS and HTG Corp., a Georgia corporation ("Account
Party")(as the same may from time to time be amended, supplemented and/or
restated, including amendments which increase the Account Party obligations
thereunder, the "Letter Agreement"); and
WHEREAS, one of the terms and conditions stated in the Letter Agreement
for the making of the financial accommodations described therein is the
execution and delivery to WXS of this Guaranty Agreement;
NOW, THEREFORE, in order to comply with the terms and conditions of the
Letter Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Guarantor hereby agrees as follows:
ARTICLE 1
THE GUARANTY
Section 1.1 Liabilities Guaranteed. Guarantor hereby irrevocably
and unconditionally guarantees the prompt payment and performance of the
Liabilities (defined below) when due, whether at maturity or otherwise (but
after giving effect to any grace, notice or cure period extended to the Account
Party by WXS in regard thereto). As used herein, "Liabilities" shall mean all
obligations of HTG Corp. to pay the Account Balance (as defined in the Letter
Agreement), and all interest accrued thereon but unpaid, and to perform the
other obligations provided for in the Letter Agreement.
Section 1.2 Nature of Guaranty. This Guaranty Agreement is an
absolute, irrevocable, completed and continuing guaranty of payment and
performance and not a guaranty of collection, and no notice of the Liabilities
or any extension of credit already or hereafter contracted by or extended to the
Account Party need be given to Guarantor. This Guaranty Agreement may not be
revoked by Guarantor and shall continue to be effective with respect to debt and
other obligations under the Liabilities arising or created after any attempted
revocation by Guarantor and shall remain in full force and effect until the
Liabilities are paid in full and fully performed. The Account Party and WXS may
modify, alter, rearrange, extend for any period and/or renew from time to time,
the Liabilities, and WXS may waive any default in respect thereof without notice
to the Guarantor and in such event Guarantor will remain fully bound hereunder
on the Liabilities. This Guaranty Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of the Liabilities is
rescinded or must otherwise be returned by the Account Party upon the
insolvency, bankruptcy or reorganization of the Account Party, or otherwise, all
as though such payment had not been
made. This Guaranty Agreement may be enforced by WXS and any subsequent holder
of any of the Liabilities and shall not be discharged by the assignment or
negotiation of all or part of the Liabilities. Guarantor hereby expressly waives
presentment, demand, notice of non-payment, protest and notice of protest and
dishonor, notice of default, notice of intent to accelerate the maturity and
notice of acceleration of the maturity and any other notice in connection with
the Liabilities, and also notice of acceptance of this Guaranty Agreement,
acceptance on the part of WXS being conclusively presumed by WXS' request for
this Guaranty Agreement and delivery of the same to WXS.
Section 1.3 Rights of WXS. Guarantor authorizes WXS, without
notice or demand and without affecting Guarantor's liability hereunder, to take
and hold security for the payment of the Liabilities, and exchange, enforce,
waive and release any such security; and to apply such security and direct the
order or manner of sale thereof as WXS in its discretion may determine; and to
obtain a guaranty of the Liabilities from any one or more persons and at any
time or times to enforce, waive, rearrange, modify, limit or release any of such
other persons from their obligations under such guaranties.
Section 1.4 Guarantor's Waivers.
(a) General. Guarantor waives any right to require WXS to (i)
proceed against the Account Party, or any other person liable on the
Liabilities, (ii) enforce any of their rights against any other guarantor of the
Liabilities, (iii) proceed or enforce any of their rights against or exhaust any
security given to secure the Liabilities, (iv) have the Account Party joined
with Guarantor in any suit arising out of this Guaranty Agreement and/or the
Liabilities, or (v) pursue any other remedy in WXS' power whatsoever. WXS shall
not be required to mitigate damages or take any action to reduce, collect or
enforce the Liabilities. Guarantor waives any defense arising by reason of any
disability, lack of corporate authority or power, or other defense of the
Account Party or any other guarantor of the Liabilities, and shall remain liable
hereon regardless of whether the Account Party or any other guarantor be found
not liable thereon for any reason. Whether and when to exercise any of the
remedies of WXS under the Letter Agreement shall be in the sole and absolute
discretion of WXS, and no delay by WXS in enforcing any remedy, including delay
in conducting a foreclosure sale, shall be a defense to the Guarantor's
liability under this Guaranty Agreement. To the extent allowed by applicable
law, the Guarantor hereby waives any good faith duty on the part of WXS in
exercising any remedies provided in the Letter Agreement.
(b) Subrogation. Until the Liabilities have been paid in full, the
Guarantor waives all rights of subrogation or reimbursement against the Account
Party, whether arising by contract or operation of law (including, without
limitation, any such right arising under any federal or state bankruptcy or
insolvency laws) and waives any right to enforce any remedy which WXS now has or
may hereafter have against the Account Party and waives any benefit or any right
to participate in any security now or hereafter held by WXS.
Section 1.5 Maturity of Liabilities; Payment. Guarantor agrees
that if the maturity of any of the Liabilities is accelerated for any reason,
such maturity shall also be deemed accelerated for the purpose of this Guaranty
Agreement without demand or notice to Guarantor. Guarantor will, forthwith upon
notice from WXS, pay to WXS the amount due and unpaid by the
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Account Party and guaranteed hereby. The failure of WXS to give this notice
shall not in any way release Guarantor hereunder.
Section 1.6 Events and Circumstances Not Reducing or Discharging
Guarantor's Obligations. Guarantor hereby consents and agrees to each of the
following to the fullest extent permitted by law, and agrees that Guarantor's
obligations under this Guaranty Agreement shall not be released, diminished,
impaired, reduced or adversely affected by any of the following, and waives any
rights (including without limitation rights to notice) which Guarantor might
otherwise have as a result of or in connection with any of the following:
(a) Modifications, etc. Any renewal, extension, modification,
increase, decrease, alteration or rearrangement of all or any part of the
Liabilities, or the Letter Agreement or any instrument executed in connection
therewith, or any contract or understanding between the Account Party and WXS,
or any other Person, pertaining to the Liabilities;
(b) Adjustment, etc. Any adjustment, indulgence, forbearance or
compromise that might be granted or given by WXS to the Account Party or
Guarantor or any Person liable on the Liabilities;
(c) Condition of Account Party or Guarantor. The insolvency,
bankruptcy, arrangement, adjustment, composition, liquidation, disability,
dissolution, death or lack of power of the Account Party or Guarantor or any
other Person at any time liable for the payment of all or part of the
Liabilities; or any dissolution of the Account Party or Guarantor, or any sale,
lease or transfer of any or all of the assets of the Account Party or Guarantor,
or any changes in the shareholders, partners, or members of the Account Party or
Guarantor; or any reorganization of the Account Party or Guarantor;
(d) Invalidity of Liabilities. The invalidity, illegality or
unenforceability of all or any part of the Liabilities, or any document or
agreement executed in connection with the Liabilities, for any reason
whatsoever, including without limitation the fact that the Liabilities, or any
part thereof, exceed the amount permitted by law, the act of creating the
Liabilities or any part thereof is ultra xxxxx, the officers or representatives
executing the documents or otherwise creating the Liabilities acted in excess of
their authority, the Liabilities violate applicable usury laws, the Account
Party has valid defenses, claims or offsets (whether at law, in equity or by
agreement) which render the Liabilities wholly or partially uncollectible from
the Account Party, the creation, performance or repayment of the Liabilities (or
the execution, delivery and performance of any document or instrument
representing part of the Liabilities or executed in connection with the
Liabilities, or given to secure the repayment of the Liabilities) is illegal,
uncollectible, legally impossible or unenforceable, or the Letter Agreement or
other documents or instruments pertaining to the Liabilities have been forged or
otherwise are irregular or not genuine or authentic;
(e) Release of Obligors. Any full or partial release of the
liability of the Account Party on the Liabilities or any part thereof, of any
co-guarantors, or any other Person now or hereafter liable, whether directly or
indirectly, jointly, severally, or jointly and severally, to pay, perform,
guarantee or assure the payment of the Liabilities or any part thereof, it being
recognized, acknowledged and agreed by Guarantor that Guarantor may be required
to pay the
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Liabilities in full without assistance or support of any other Person, and
Guarantor has not been induced to enter into this Guaranty Agreement on the
basis of a contemplation, belief, understanding or agreement that other parties
other than the Account Party will be liable to perform the Liabilities, or WXS
will look to other parties to perform the Liabilities;
(f) Other Security. The taking or accepting of any other security,
collateral or guaranty, or other assurance of payment, for all or any part of
the Liabilities;
(g) Release of Collateral, etc. Any release, surrender, exchange,
subordination, deterioration, waste, loss or impairment (including without
limitation negligent, willful, unreasonable or unjustifiable impairment) of any
collateral, property or security, at any time existing in connection with, or
assuring or securing payment of, all or any part of the Liabilities;
(h) Care and Diligence. The failure of WXS or any other person to
exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of such
collateral, property or security;
(i) Payments Rescinded. Any payment by the Account Party to WXS is
held to constitute a preference under the bankruptcy laws, or for any reason WXS
is required to refund such payment or pay such amount to the Account Party or
someone else; or
(j) Other Actions Taken or Omitted. Any other action taken or
omitted to be taken with respect to the Letter Agreement, the Liabilities, or
the security and collateral therefor, whether or not such action or omission
prejudices Guarantor or increases the likelihood that Guarantor will be required
to pay the Liabilities pursuant to the terms hereof; it being the unambiguous
and unequivocal intention of Guarantor that Guarantor shall be obligated to pay
the Liabilities when due, notwithstanding any occurrence, circumstance, event,
action, or omission whatsoever, whether contemplated or uncontemplated, and
whether or not otherwise or particularly described herein, except for the full
and final payment and satisfaction of the Liabilities.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Section 2.1 By Guarantor. In order to induce WXS to accept this
Guaranty Agreement, Guarantor represents and warrants to WXS (which
representations and warranties will survive the creation of the Liabilities and
any extension of credit with respect thereto) that:
(a) Power and Authorization. Guarantor is duly authorized and
empowered to execute, deliver and perform this Guaranty Agreement and all action
on Guarantor's part requisite for the due execution, delivery and performance of
this Guaranty Agreement has been duly and effectively taken.
(b) Binding Obligations. This Guaranty Agreement constitutes a
valid and binding obligation of Guarantor, enforceable in accordance with its
terms (except that enforcement may be subject to any applicable bankruptcy,
insolvency or similar laws generally affecting the enforcement of creditors'
rights).
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(c) No Legal Bar or Resultant Lien. This Guaranty Agreement will
not violate any provisions of any contract, agreement, law, regulation, order,
injunction, judgment, decree or writ to which Guarantor is subject, or result in
the creation or imposition of any lien upon any properties of Guarantor.
Guarantor's execution, delivery and performance of this Guaranty Agreement does
not require the consent or approval of any other person, including without
limitation any regulatory authority or governmental body of the United States or
any state thereof or any political subdivision of the United States or any state
thereof.
(d) Assets. Guarantor's sole asset consists of one hundred percent
(100%) of the issued and outstanding shares of capital stock of Vytech Midco,
Inc. ("Vytech Midco"). Vytech Midco's sole asset consists of one hundred percent
(100%) of the issued and outstanding shares of capital stock of Vytech
Industries, Incorporated ("Vytech Industries").
Section 2.2 No Representation by WXS. Neither WXS nor any other
person has made any representation, warranty or statement to the Guarantor in
order to induce the Guarantor to execute this Guaranty Agreement.
ARTICLE 3
COVENANTS
Xxxxxxxx X. Xxxxx, Xx. and Guarantor each covenants and agrees, that
from and after the date hereof and until all Liabilities shall have been
satisfied, to the covenants and agreements set forth below.
Section 3.1 Negative Pledge. Guarantor and Vytech Midco will not
create, incur, assume or suffer to exist any lien or other encumbrance (a
"Lien") on any of their capital stock, property or assets now owned or hereafter
acquired, other than Liens in existence on the date hereof. Vytech Industries
will not create, incur, assume or suffer to exist any such Lien in favor of
Xxxxxxxx X. Xxxxx, Xx. or any of his affiliates.
Section 3.2 Dividends, Etc. Guarantor, Vytech Midco and Vytech
Industries will not declare or pay any cash dividend or distribution on any
class of their stock, except for payments made for the purposes of satisfying
obligations under the Letter Agreement or dividends to the extent permitted by
the senior lender to Vytech Industries expressly in respect of tax income
attributable to the shareholders of Guarantor by virtue of the Subchapter S
election under the Internal Revenue Code of Guarantor, or make any cash payment
to purchase, redeem, retire or acquire any capital stock, or any option,
warrant, or other right to acquire such capital stock.
Section 3.3 Investments. Guarantor will not make, or permit,
create or hold any assets or investments other than capital stock of Vytech
Midco, and it will cause Vytech Midco (i) to not make, permit, create or hold
any assets or investments other than the capital stock of Vytech Industries, and
(ii) as sole shareholder of Vytech Industries, cause such company to operate its
businesses and hold its assets, in all material respects, only in the ordinary
course of business of such company, as historically conducted.
Section 3.4 Indebtedness. Guarantor and Vytech Midco will not
guarantee, assume or in any manner become liable with respect to indebtedness of
any person or entity outside the
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ordinary course of business. Vytech Industries will not guarantee, assume or in
any manner become liable with respect to indebtedness of Xxxxxxxx X. Xxxxx, Xx.
or any of his affiliates.
Section 3.5 Loans. Guarantor and Vytech Midco will not make any
loan to any person or entity. Vytech Industries will not make any loans to
Xxxxxxxx X. Xxxxx, Xx. or any of his affiliates.
Section 3.6 Compensation Matters. Guarantor and Vytech Midco will
not increase the compensation of any employee or director.
ARTICLE 4
MISCELLANEOUS
Section 4.1 Successors and Assigns. This Guaranty Agreement is
and shall be in every particular available to the successors and assigns of WXS
and is and shall always be fully binding upon the legal representatives, heirs,
successors and assigns of Guarantor, notwithstanding that some or all of the
monies, the repayment of which this Guaranty Agreement applies, may be actually
advanced after any bankruptcy, receivership, reorganization, death, disability
or other event affecting Guarantor.
Section 4.2 Notices. Any notice or demand to Guarantor under or
in connection with this Guaranty Agreement may be given and shall conclusively
be deemed and considered to have been given and received if addressed to
Guarantor at the address on the signature page hereof or at such other address
provided to WXS in writing.
Section 4.3 Choice of Law, Submission to Jurisdiction; Etc.
(a) THIS GUARANTY AGREEMENT IS A CONTRACT MADE UNDER AND SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF GEORGIA.
(b) THE GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF ANY GEORGIA STATE COURT OR ANY FEDERAL COURT SITTING IN THE
NORTHERN DISTRICT OF GEORGIA, AS WXS MAY ELECT, IN ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT. THE GUARANTOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT TO
SUCH SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY OF SUCH
COURTS. THE GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH THE GUARANTOR MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT, AND
THE GUARANTOR FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
THE GUARANTOR HEREBY EXPRESSLY WAIVES ALL RIGHTS OF ANY OTHER JURISDICTION WHICH
THE GUARANTOR MAY NOW OR HEREAFTER HAVE BY REASON OF ITS PRESENT OR SUBSEQUENT
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DOMICILES. THE GUARANTOR AUTHORIZES THE SERVICE OF PROCESS UPON THE GUARANTOR BY
REGISTERED MAIL SENT TO THE GUARANTOR AT ITS ADDRESS SET FORTH ON THE SIGNATURE
PAGE HEREOF.
(c) THE GUARANTOR HEREBY (1) IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS GUARANTY AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN; (2) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; AND (3) CERTIFIES THAT NO PARTY
HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS.
Section 4.4 Invalidity. In the event that any one or more of the
provisions contained in this Guaranty Agreement shall, for any reason, be held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Guaranty
Agreement.
Section 4.5 Entire Agreement. This written guaranty agreement and
the Letter Agreement embody the entire agreement and understanding among WXS and
the Guarantor and supersede all other agreements and understandings among such
parties relating to the subject matter hereof. This written Guaranty Agreement
represents the final agreement among the parties and may not be contradicted by
evidence of prior, contemporaneous or subsequent oral agreements of the parties,
there are, no unwritten oral agreements among the parties.
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IN WITNESS WHEREOF, Guarantor has executed this Agreement, as of the
date first above written.
VYTECH HOLDINGS, INC.
By: /s/ Xxxxxxxx X. Xxxxx, Xx.
--------------------------------------
Xxxxxxxx X. Xxxxx, Xx., President
/s/ Xxxxxxxx X. Xxxxx, Xx.
------------------------------------------
Xxxxxxxx X. Xxxxx, Xx., Individually -
Solely for the purposes of Section 3
of this Agreement
Address for notices:
Vytech Holdings, Inc.
0000 Xxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: President
Telephone Number: (000) 000-0000
Telecopier Number: (000) 000-0000
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