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GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("Guaranty") made this 30th day of June, 1998
by EDAC TECHNOLOGIES CORPORATION, a Wisconsin corporation having its principal
place of business at 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx
("Guarantor") to XXXXXX X. XXXXXX of Canton Connecticut, XXXXX X. XXXXXX of
Burlington, Connecticut and XXXXXXX X. XXXXXX of Harwinton, Connecticut
(collectively, the "Lenders").
W I T N E S E T H :
WHEREAS, pursuant to the terms of a certain Purchase Agreement dated
May 13, 1998 between Guarantor and Lenders (the "Real Estate Contract"), Lenders
agreed to sell and Guarantor agreed to purchase certain real property known as
00 Xxxxxx Xxxx and 00 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx (collectively, the
"Real Property"); and
WHEREAS, pursuant to Section 9.1 of the Real Estate Contract and a
certain Assignment dated the date hereof, Guarantor has assigned to Apex
Acquisition Corporation, a Connecticut corporation having its principal office
at 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 ("Apex"), the right to
acquire title to the Real Property under the Real Estate Contract; and
WHEREAS, pursuant to the Real Estate Contract, Lenders have conveyed
the Real Property to Apex and assigned the Landlord's interest in and to a
certain lease to Apex pursuant to that certain Assignment and Assumption of
Lease dated the date hereof granted by Lenders to Apex (the "Lease Assumption
Agreement"); and
WHEREAS, as provided in the Real Estate Contract, Apex paid the
purchase price for the Real Property by delivery of a $________ Promissory Note
dated the date hereof made by Apex to the order of the Lenders (the "Note"),
which Note is secured by (i) a Mortgage Deed, Assignment of Leases and Security
Agreement dated the date hereof granted by Apex to Lenders (the "Mortgage") and
(ii) an Assignment of Leases and Rentals dated the date hereof granted by Apex
to the Lenders (the "Assignment"); and
WHEREAS, as provided in Section 9.1 of the Real Estate Contract,
Lenders required that Guarantor enter into this Guaranty as a condition
precedent to Lender's conveyance of the Real Property to Apex and Lender's
acceptance of the Note,
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Mortgage, Assignment of Leases and Lease Assumption from Apex; and
WHEREAS, as the holder of all of the issued and outstanding shares of
stock of Apex, Guarantor shall receive substantial benefit if Lenders make
credit available to Apex as provided in the Note; and
WHEREAS, Guarantor desires that Lenders convey the Real Property to
Apex and that Lender accept the Note, Mortgage, Assignment of Leases and Lease
Assumption from Apex.
NOW THEREFORE, for good and valuable consideration received by
Guarantor, the receipt and sufficiency of which is hereby acknowledged, and for
the purpose of inducing Lenders to convey the Real Property to Apex and to
accept the Note, the Mortgage, the Assignment of Leases and the Lease Assumption
Agreement from Apex, Guarantor absolutely, unconditionally and irrevocably
guarantees to Lenders the due and punctual payment, performance and discharge
(whether upon acceleration or otherwise in accordance with the terms thereof) of
all of Apex's obligations under the Note, the Mortgage, the Assignment of Leases
and the Lease Assumption Agreement (collectively, the "Guaranteed Documents"),
including all costs and expenses of Lenders arising under the Guaranteed
Documents, together with any and all expenses of, for and incidental to
collection including reasonable attorneys' fees and appraiser's fees whether or
not litigation is commenced (collectively, the "Guaranteed Obligations").
Guarantor shall have no right of subrogation, reimbursement or
indemnity whatsoever and no right of recourse to or with respect to any asset or
property of Apex or to any collateral for the Guaranteed Obligations. Nothing
shall discharge or satisfy the liability of Guarantor hereunder except the full
performance and payment of the Guaranteed Obligations. If Apex, Guarantor or any
other guarantor of the Guaranteed Obligations should at any time become
insolvent or make a general assignment for the benefit of creditors, or if a
petition in bankruptcy or any insolvency or reorganization proceeding shall be
filed or commenced by, against, or in respect of Apex, Guarantor, or any such
other guarantor, and which in the case of a filing against Apex, Guarantor or
any such other guarantor, is not dismissed within sixty (60) days, any and all
of the obligations of Guarantor shall forthwith become due and payable without
notice.
Guarantor consents and agrees that, without notice to Guarantor and
without affecting or impairing the obligations of Guarantor hereunder, Lenders
may renew or extend the obligations
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of Apex under the Guaranteed Documents or otherwise, any number of times, may
compromise or settle, extend the duration or the time for payment, discharge or
performance of, or may refuse to enforce or may release all or any party to any
and all of the Guaranteed Obligations, or waive or fail to act with respect to
any requirement of or relating to the Guaranteed Obligations, or may grant other
indulgences to Apex in respect thereof, or may amend or modify in any manner any
document or agreement relating to the Guaranteed Obligations (other than this
Guaranty) or may release, surrender, exchange, modify, or impair any security at
any time held or available to Lenders, or may extend the duration or time for
performance, discharge or payment of any obligation of Apex and may fail to
set-off and may release, in whole or in part, any balance of any and all
deposits and other property securing the Guaranteed Obligations or on which
Lenders at any time may have a lien, or may refuse to enforce their rights, or
may make any compromise or settlement or agreement therefor, in respect of any
and all of such deposits and property, or with any party to the Guaranteed
Obligations, or with any other person, firm or corporation whatsoever, or may
release or substitute any one or more of the endorsers or guarantors of the
Guaranteed Obligations whether parties to this instrument or not, or may
exchange, enforce, waive or release any security for any guaranty of the
Guaranteed Obligations.
Guarantor consents and agrees that Lenders shall be under no obligation
to marshal any asset in favor of Guarantor or against or in payment of any or
all of the Guaranteed Obligations. Guarantor further agrees that to the extent
Apex makes a payment or payments to Lenders which payment or payments thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to a trustee, receiver or any other party under
any bankruptcy act, state or federal law, common law or equitable cause, then to
the extent of such payment or repayment, the obligation or part thereof intended
to be satisfied shall be revived and continue in full force and effect as if
said payment had not been made.
Guarantor agrees that the liability of Guarantor on this Guaranty shall
be irrevocable and shall be immediate and not contingent upon the exercise or
enforcement by Lenders of whatever remedies they may have against Apex or
others, or the enforcement of any lien or realization upon any security Lenders
may at any time possess. Any attempted revocation shall be ineffective except if
Lenders shall have granted written consent thereto. Lenders shall be under no
obligation to grant such consent. Any such consent which Lenders might grant
with respect to Guarantor will not release any other guarantor of the
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Guaranteed Obligations from his or her obligations under his or her guaranty.
Guarantor represents and warrants to Lenders as an inducement to
Lenders to convey the Real Property to Apex and to accept the Guaranteed
Documents from Apex that: (i) this Guaranty constitutes a legal, valid and
binding obligation of Guarantor enforceable in accordance with its terms, (ii)
the execution and delivery of this Guaranty and compliance with the terms hereof
will not conflict with, or result in a breach of, the terms, conditions or
provisions of any agreement or instrument to which Guarantor is a party or by
which Guarantor may be bound, or constitute a default thereunder, or render
Guarantor insolvent, or result in the creation of a lien, charge or encumbrance
upon any property or assets of Guarantor; (iii) as of the date of this Guaranty,
the fair saleable value of Guarantor's assets exceed its liabilities; (iv)
Guarantor is meeting current liabilities as they mature; (v) there are not now
pending any material court or administrative proceedings or undischarged
judgments against Guarantor, and no federal or state liens have been filed or
threatened against Guarantor, nor is Guarantor in default or claimed default
under any agreement for borrowed money; and (vi) no petition in bankruptcy has
been filed by or against Guarantor.
This Guaranty is a primary and original obligation of Guarantor and is
an absolute, unconditional, continuing and irrevocable guaranty of payment and
shall remain in full force and effect regardless of future changes in
conditions, including change of law or any invalidity or irregularity with
respect to the issuance of any obligations of Apex to Lenders or with respect to
the execution and delivery of any agreement between Apex and Lenders.
Lenders shall have the right to seek recourse against Guarantor to the
full extent provided for herein and in any other document or instrument
evidencing obligations of Guarantor to Lenders, and against Apex, to the full
extent provided for in the Guaranteed Documents. No election to proceed in one
form of action or proceeding, or against any party, or on any obligation, shall
constitute a waiver of Lenders' right to proceed in any other form of action or
proceeding or against other parties unless Lenders have expressly waived such
right in writing. No action or proceeding by Lenders against Apex, under any
document or instrument evidencing or securing indebtedness of Apex to Lenders
shall serve to diminish the liability of Guarantor except to the extent Lenders
realized payment by such action or proceeding. Guarantor is fully aware of the
financial condition of Apex. Guarantor delivers this Guaranty based solely upon
its
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own independent investigation and in no part upon any representation or
statement of Lenders with respect thereto. Guarantor is in a position to and
hereby assumes full responsibility for obtaining any additional information
concerning the financial condition of Apex as Guarantor may deem material to its
obligations hereunder and Guarantor is not relying upon, nor expecting Lenders
to furnish to it any information concerning the financial condition of Apex.
Guarantor agrees that it will promptly execute and deliver to Lenders
or their designee written reaffirmation of Guarantor's obligations hereunder if
so requested by Lenders from time to time. Guarantor's absolute obligation to
make such reaffirmations shall not be construed to infer an absence of liability
on behalf of Guarantor in any instance in which Guarantor is not asked to
reaffirm (or fails to reaffirm) its obligations, notwithstanding any
modification of Apex's obligations to Lenders.
Guarantor agrees that, in the event Lenders deem it necessary to employ
counsel to enforce any of the obligations of Guarantor hereunder, Guarantor
shall pay the reasonable attorneys' fees so incurred whether suit be brought or
not, including without limitation attorneys' fees on appeal or in any bankruptcy
proceeding, together with all other reasonable costs and expenses connected
therewith.
This Guaranty, all acts and transactions hereunder and the rights and
obligations of the parties hereto shall be governed, construed and interpreted
according to the laws of the State of Connecticut. Guarantor and Lender agree
that any claims or disputes with respect to any set-off rights exercised by Apex
or Guarantor due to any alleged unpaid indemnification obligation of Lenders
under the Purchase Agreements, as defined in the Real Estate Contract, shall be
resolved pursuant to the arbitration provisions of the Asset Agreement, as
defined in the Real Estate Contract. With respect to any claims or disputes
between Guarantor and Lenders pertaining directly or indirectly to this
Guaranty, or to any of the Guaranteed Documents or to any matter arising
herefrom or therefrom which are not of a nature required to be submitted to
arbitration under the Asset Agreement, Guarantor and Lenders hereby agree that
any state court or local court of the State of Connecticut and the United States
District Court for the District of Connecticut shall have exclusive jurisdiction
to hear and determine any such claims or disputes. In such event, Guarantor
expressly submits and consents in advance to such jurisdiction in any such
action or proceeding commenced in such courts, hereby waiving any objections it
may have as to venue of any such suit, action or proceedings brought
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in such court or that such court is an inconvenient forum and hereby waiving
personal service of the summons and complaint, or other process or papers issued
therein, and agreeing that service of such summons and complaint, or other
process or papers may be made by registered or certified mail addressed to
Guarantor at the address of Guarantor set forth above. In addition to the
foregoing, Guarantor irrevocably designates and appoints __________________ as
its agent to receive on its behalf service of all process in any such
proceedings in any such court in the State of Connecticut and directs such agent
to accept such service on its behalf. The exclusive choice of forum set forth in
this Paragraph shall not be deemed to preclude the enforcement of any judgment
obtained in such forum, or the taking of any action under this Guaranty or under
any of the other Guaranteed Documents, to enforce same, in any appropriate
jurisdiction.
No failure, omission or delay on the part of Lenders in exercising any
rights hereunder or in taking any action to collect or enforce payment or
performance of the Guaranteed Obligations or in enforcing observance or
performance of any agreement, covenant, term or condition to be performed or
observed under the Guaranteed Documents or any other instrument evidencing or
securing any of the Guaranteed Obligations, either against Apex, or any other
person or entity liable therefor, shall operate as a waiver of any such right or
in any manner prejudice the rights of Lenders against Guarantor.
In case any one or more of the provisions contained in this Guaranty
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision hereof, and this Guaranty shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
Notwithstanding the foregoing, it is the intention of Guarantor and Lenders that
if any provision of this Guaranty is capable of two (2) constructions, one of
which would render the provision void and the other of which would render the
provision valid, then such provision shall be construed in accordance with the
construction which renders such provision valid.
This Guaranty shall remain fully enforceable irrespective of any
defenses or counterclaims that Apex may assert on or with respect to the
Guaranteed Obligations (other than actual payment or Permitted Set-offs, as
defined in Section 4.7 of the Mortgage).
GUARANTOR ACKNOWLEDGES THAT THIS GUARANTY AND THE TRANSACTIONS
CONTEMPLATED BY THE GUARANTEED DOCUMENTS ARE COMMERCIAL TRANSACTIONS AND NOT
CONSUMER TRANSACTIONS, AND
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GUARANTOR WAIVES ANY RIGHT TO (1) NOTICE AND HEARING ON THE RIGHT OF LENDERS TO
OBTAIN A PREJUDGMENT REMEDY UNDER CHAPTER 903a OF THE CONNECTICUT GENERAL
STATUTES, REV. 1958, AS AMENDED, OR AS THE SAME MAY BE AMENDED; (2) NOTICE AND
PRIOR HEARING OR OTHER PROCESS ALLOWED UNDER ANY STATE OR FEDERAL CONSTITUTION,
STATUTE OR OTHER LAW, NOW OR HEREAFTER AFFECTING PREJUDGMENT REMEDIES; AND (3)
ANY REQUIREMENT THAT LENDERS POST A BOND OR OTHER SECURITY IN ORDER TO OBTAIN
ANY PREJUDGMENT REMEDY.
IN ADDITION, GUARANTOR DOES HEREBY WAIVE: NOTICE OF ACCEPTANCE HEREOF;
NOTICE OF THE AMOUNT OF THE GUARANTEED OBLIGATIONS FROM TIME TO TIME; NOTICE OF
ANY CHANGE OF APEX'S FINANCIAL CONDITION OR ANY OTHER FACT WHICH MIGHT INCREASE
GUARANTOR'S RISK; DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT, DEMAND OR PROTEST
AND NOTICE THEREOF AS TO ANY INSTRUMENT; NOTICE OF DEFAULT; AND ALL OTHER
NOTICES AND DEMANDS TO WHICH GUARANTOR MIGHT OTHERWISE BE ENTITLED INCLUDING,
BUT NOT LIMITED TO, NOTICE OF ANY RENEWALS OR EXTENSIONS OF THE NOTE OR ANY OF
THE OTHER GUARANTEED DOCUMENTS. GUARANTOR FURTHER WAIVES ALL RIGHTS BY STATUTE
OR OTHERWISE TO REQUIRE LENDERS TO INSTITUTE SUIT AGAINST APEX, OR TO EXHAUST
THEIR RIGHTS AND REMEDIES AGAINST APEX, GUARANTOR BEING BOUND TO THE PAYMENT OF
EACH AND ALL OF THE GUARANTEED OBLIGATIONS, WHETHER NOW EXISTING OR HEREAFTER
ACCRUING, AS FULLY AS IF SUCH OBLIGATIONS WERE DIRECTLY OWING TO LENDER BY
GUARANTOR. GUARANTOR FURTHER WAIVES ANY DEFENSE ARISING BY REASON OF ANY
DISABILITY OR OTHER DEFENSE OF APEX OR BY REASON OF THE CESSATION FROM ANY CAUSE
WHATSOEVER OF THE LIABILITY OF APEX AND ANY DEFENSE THAT OTHER INDEMNITY,
GUARANTY OR SECURITY WAS TO BE OBTAINED.
GUARANTOR FURTHER WAIVES ALL RIGHTS TO THE BENEFITS OF ANY MORATORIUM,
APPRAISEMENT, EXEMPTION AND HOMESTEAD NOW PROVIDED OR WHICH MAY HEREAFTER BE
PROVIDED BY ANY FEDERAL OR STATE STATUTE, INCLUDING BUT NOT LIMITED TO
EXEMPTIONS PROVIDED BY OR ALLOWED UNDER THE BANKRUPTCY REFORM ACT OF 1978, AS
THE SAME MAY BE AMENDED, BOTH AS TO ITSELF PERSONALLY AND AS TO ALL OF ITS
PROPERTY, WHETHER REAL OR PERSONAL, AGAINST THE ENFORCEMENT AND COLLECTION OF
ITS OBLIGATIONS HEREUNDER; ALL RIGHTS UNDER ANY STATUTE OF LIMITATIONS; AND THE
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER
IN CONTRACT OR IN TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY
RELATED TO THIS GUARANTY OR ANY OF THE OTHER GUARANTEED DOCUMENTS.
GUARANTOR ACKNOWLEDGES AND AGREES THAT THE WAIVERS CONTAINED IN THIS
GUARANTY HAVE BEEN SPECIFICALLY REQUESTED BY LENDERS AND HAVE BEEN GRANTED BY
GUARANTOR TO INDUCE LENDERS CONVEY THE REAL PROPERTY TO APEX AND TO ACCEPT THE
GUARANTEED DOCUMENTS FROM APEX AND THAT SUCH WAIVERS HAVE BEEN KNOWINGLY AND
VOLUNTARILY GIVEN
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ONLY AFTER CONSIDERATION OF THE RAMIFICATIONS OF SUCH WAIVERS WITH ITS ATTORNEY.
All notices to Guarantor or Lenders shall be given by personal delivery
or delivered by registered or certified mail, return receipt required, or by
nationally recognized overnight carrier, with postage or carrier charges prepaid
and addressed to such party at the address herein set forth or such other
address of which any party may give the other notice in writing in the manner
provided in this Paragraph and such delivery shall be deemed given (i) when
delivered if delivered personally; (ii) on the third (3rd) day following its
being postmarked if delivered by mail as provided above; or (iii) on the first
(1st) day following its being placed in the possession of such delivery service.
For purposes of this Guaranty, the addresses of Guarantor and Lender are as
follows:
Guarantor: EDAC Technologies Corporation
0000 Xxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: President
Lenders: Xxxxxx X. Xxxxxx
0 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxx 00000
and
Xxxxx X. Xxxxxx
0 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
and
Xxxxxxx X. Xxxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
This Guaranty contains the entire understanding and agreement with
respect to its subject matter, and all prior negotiations, discussions,
commitments, representations, agreements and understandings between Lenders and
Guarantor with respect thereto are merged herein. None of the terms, covenants,
conditions, warranties or representations contained in this Guaranty may be
renewed, replaced, amended, extended, substituted, revised, waived,
consolidated, modified or terminated except by an agreement in writing signed by
the party against whom enforcement is sought. The provisions of this Guaranty
shall extend and be applicable to all renewals,
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replacements, amendments, extensions, substitutions, revisions, waivers,
consolidations, modifications and terminations of the Guaranteed Documents; and
all references herein to any of the Guaranteed Documents shall be deemed to
include any such renewals, replacements, amendments, extensions, substitutions,
revisions, consolidations, waivers, modifications or terminations thereof.
Notwithstanding the foregoing, any reference, whether express or
implied, to any renewal, replacement, amendment, extension, substitution,
revision, waiver, consolidation, modification or termination of any of the
Guaranteed Documents is not intended to constitute a consent to any such
renewal, replacement, amendment, extension, substitution, revision, waiver,
consolidation, modification or termination of any of the Guaranteed Documents,
but as a reference only to those instances where Lenders may give written
consent to any such renewal, replacement, amendment, extension, substitution,
revision, waiver, consolidation, modification or termination of any of the
Guaranteed Documents.
This Guaranty shall (i) be binding on Guarantor and its successors and
assigns and (ii) inure to the benefit of Lender, any other person or entity who
may now or hereafter hold any interest in the Note and the other Guaranteed
Documents and their respective successors and assigns. Notwithstanding the
foregoing, Guarantor may not assign or otherwise transfer this Guaranty or any
of its rights or obligations hereunder without the express written consent of
Lenders, in each instance, which consent may be withheld in Lenders' sole and
absolute discretion.
References in this Guaranty to "herein," "hereof" and "hereunder" shall
be deemed to refer to this Guaranty and shall not be limited to the particular
text or paragraph in which such words appear. References in this Guaranty to
attorneys' fees and expenses shall be deemed to include all costs for
administrative, paralegal and other support staff.
The use of any gender herein shall include all genders and the singular
number shall include the plural and vice versa as the context may require.
As used herein, the term "including," when following any general
statement, will not be construed to limit such statement to the specific items
or matters as provided immediately following the term "including" (whether or
not non-limiting language such as "without limitation" or "but not limited to"
or words of similar import are also used), but rather will be deemed
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to refer to all items or matters that could reasonably fall within the broader
scope of the general statement.
IN WITNESS WHEREOF, Guarantor caused this Guaranty to be duly executed
as of the day and year first above written.
Signed, Sealed and Delivered
in the Presence of: EDAC TECHNOLOGIES CORPORATION
By:
_________________________ ____________________________
Name: Name:
Title:
Hereunto Duly Authorized
_________________________
Name:
STATE OF CONNECTICUT :
: SS. , June ___, 1998
COUNTY OF HARTFORD :
Personally appeared _________________, __________________, of EDAC
TECHNOLOGIES CORPORATION, signer and sealer of the foregoing instrument, and
acknowledged the same to be his/her free act and deed as such Officer and the
free act and deed of that corporation, before me.
__________________________________
Name:
Commissioner of the Superior Court
Notary Public
My Commission Expires:
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