Exhibit 10.49
[EXECUTION COPY]
UNCONDITIONAL GUARANTY
This UNCONDITIONAL GUARANTY (this "Guaranty") dated as of the 8th day
of April, 1998 (the "Guaranty") is given by XXXXXX X. XXXXXXXX, XX. (the
"Guarantor"), resident of Petersburg, Virginia, to Xxxxxxxx Adhesives, Inc., a
Virginia corporation (the "Corporation").
WHEREAS, the Corporation, Xxxxxxxx Industries, Inc., a Virginia
corporation ("Xxxxxxxx Industries"), Xxxxxxxx Family Limited Partnership (the
"Partnership"), H. Xxxxxx Xxxxxxxx, Xx. and the Guarantor have entered into a
certain Settlement Agreement dated April 8, 1998 (the "Settlement Agreement")
regarding the settlement of certain claims of the Corporation and Xxxxxxxx
Industries against H. Xxxxxx Xxxxxxxx , Xx.; and
WHEREAS, the Corporation is unwilling to enter into and perform the
Settlement Agreement unless it receives a guaranty from the Guarantor, who is a
limited partner of the Partnership and the parent of H. Xxxxxx Xxxxxxxx, Xx.,
with respect to the Liabilities, as hereinafter defined, of H. Xxxxxx Xxxxxxxx,
Xx. to the Corporation.
AGREEMENT:
NOW THEREFORE, for and in consideration of the premises, and other good
and valuable consideration, the receipt and adequacy of which the parties hereby
acknowledge, the parties covenant and agree as follows:
Section 1. Definitions and Interpretation.
(a) Unless the context indicates otherwise, words
used in this Guaranty in the singular number will be deemed to include words in
the plural number, and vice versa, and words in one gender will be deemed to
include words in the other genders.
(b) The section headings are for convenience only
and neither limit nor amplify the provisions of this Guaranty.
(c) The term "Note" as used shall refer to that
certain Promissory Note dated April 8, 1998 made by the Partnership payable to
the Corporation in the original face amount of $375,000.00.
(d) The term "Pledge and Security Agreement" shall
refer to that certain Pledge and Security Agreement dated April 8, 1998 by and
between the Partnership and the Corporation.
(e) The term "Debtor" shall refer to the
Partnership.
(f) The term "Bankruptcy Code" shall refer to Title
11 of the United States Code.
Section 2. Guaranty. The Guarantor hereby unconditionally
guarantees to the Corporation, without offset or deduction, the full and prompt
payment of (a) the obligations evidenced by the Note, and all renewals,
extensions, modifications and substitutions therefor, and (b) the reimbursement
to the Corporation for any and all costs, expenses and reasonable attorney's
fees incurred in connection with either the collection of the Note or the
protection of the Corporation's security, rights or remedies with respect to the
Note or this Guaranty. The foregoing listed in (a) and (b) shall be herein
referred to as the "Liabilities."
Section 3. Guaranty Unconditional. The duties and obligations of
the Guarantor hereunder will be absolute, continuing and unconditional. Without
limiting the generality of the foregoing, this Guaranty will not be released,
discharged or otherwise affected by:
(a) any extension, renewal, compromise, settlement,
waiver or release of any of the Liabilities of any other maker, endorser or
guarantor (each of the foregoing sometimes herein referred to as a "Party")
under any instrument or document evidencing, guaranteeing or securing any of the
Liabilities including without limitation the Note, the Pledge and Security
Agreement, this Guaranty and the Settlement Agreement (collectively, the
"Settlement Documents");
(b) any amendment, modification or supplement to the
Note, the Pledge and Security Agreement, the Settlement Agreement or any other
Settlement Document;
(c) any failure to perfect a lien granted by any of
the Settlement Documents with respect to any of the Pledged Collateral (as
defined in the Pledge and Security Agreement), the release of any such lien or
the substitution or exchange of any security for any of the Liabilities;
(d) any change in the structure, existence or
ownership of the Debtor or the filing or entry of a final order in any
insolvency, bankruptcy, reorganization or other similar proceeding affecting the
Debtor or its assets or releasing any Party from any of its obligations under
any of the Settlement Documents;
(e) the existence of any claim, set-off or other
right that the Guarantor may have at any time against the Debtor, the
Corporation or any Party, whether arising from the execution of any of the
Settlement Documents or otherwise, provided that nothing contained herein will
prevent the assertion of such a claim in a separate suit;
(f) the unenforceability, for any reason, of any of
the duties or obligations of any Party under any of the Settlement Documents;
(g) the Corporation selling, exchanging, releasing,
surrendering, realizing upon or otherwise dealing with or in any manner and in
any order any collateral or security at any time held by or available to the
Corporation for any Liability, or for the obligation of the Guarantor, or for
the obligation of any person secondarily or otherwise liable for any of the
Liabilities;
(h) the failure of the Corporation: (i) to file or
enforce a claim against any other Party (or its estate in a bankruptcy or other
proceeding); (ii) to give notice of the creation or incurring by any Party of
any new or additional indebtedness or obligation with respect to a Liability or
under the Settlement Documents; (iii) to commence any action against any Party;
(iv) to disclose to the
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Guarantor any facts that the Corporation may now or hereafter know with regard
to the Debtor; or (v) to proceed with due diligence to collect any amount due to
it under any of the Settlement Documents or to realize upon any collateral for a
Liability; or
(i) any other act, failure to act or delay of any
kind by the Debtor, any Party or the Corporation that might, but for the
provisions of this Section 3, constitute a legal or equitable discharge of the
Guarantor's obligations hereunder.
Section 4. Discharge; Reinstatement in Certain Circumstances. This
Guaranty will remain in full force and effect until the principal and interest
of the Note and all of the other Liabilities have been paid or performed in full
and until a period of one (1) year, beginning with the date of the last payment
made by or on behalf of the Debtor, has elapsed during which no petition in
bankruptcy has been filed by or against the Debtor or any other Party. If at any
time any payment or performance by the Debtor under any of the Settlement
Documents is rescinded or is required to be restored or returned because of
insolvency, bankruptcy, reorganization or otherwise, the Guarantor's obligations
hereunder with respect to such payment or performance will be reinstated as
though such payment had been due or performance required, but not paid or
performed at the time of such rescission or requirement. The Guarantor agrees
that payment or performance of any of the Liabilities or other acts that toll
any statute of limitations applicable to the Liabilities will also toll the
statute of limitations applicable to the Guarantor's liability hereunder.
Section 5. Subrogation. The Guarantor shall not exercise any right
of subrogation in and to the Liabilities or to all or any part of Corporation's
interest therein, until the Liabilities have been paid in full.
Section 6. Subordination. The Guarantor hereby subordinates all
indebtedness of the Debtor owing to the Guarantor, whether now existing or
hereafter arising, to the full and prompt payment and performance, as and when
due, of all of the Liabilities, together with all interest thereon and all
costs, expenses and reasonable attorneys' fees in connection therewith. Any
amount received by the Guarantor as payment on or with respect to the
subordinated indebtedness subsequent to any default in the payment or
performance of the Liabilities will be retained and held in trust by the
Guarantor solely for the benefit of the Corporation.
Section 7. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Debtor pursuant to the Settlement Documents
is stayed upon insolvency or bankruptcy, such amount and all other amounts
subject to acceleration under the terms of the Settlement Documents will,
nevertheless, be due and payable by the Guarantor on demand by the Corporation.
Section 8. Rights of Corporation Not Impaired. No lawful act or
omission of any kind or at any time by the Corporation in respect of any matter
whatsoever will in any way affect or impair the rights of the Corporation to
enforce any right, power or benefit of the Corporation under this Guaranty, and
no set-off, claim, diminution of any obligation, or defense of any kind or
nature that the Guarantor has or may have against the Corporation will be
available against the Corporation in any suit or action brought by the
Corporation to enforce any of its rights under this Guaranty. Nothing in this
Guaranty will be construed as a waiver by the Guarantor of any rights or claims
he may have against the Corporation under this Guaranty or otherwise, but any
recovery upon such rights and claims will be had from the Corporation
separately, it being the intent of this Guaranty that the Guarantor shall be
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obligated, unconditionally and absolutely, to perform fully all of his
obligations hereunder for the benefit of the Corporation.
Section 9. Debtor's Affairs. The Guarantor represents to the
Corporation that the Guarantor has knowledge of the Debtor's financial condition
and affairs and agrees that the Guarantor will keep himself informed of the
Debtor's financial condition and affairs so long as this Guaranty is in force.
The Guarantor further agrees that the Corporation will have no obligation to
investigate the Debtor's financial condition or affairs for the benefit of the
Guarantor or to advise the Guarantor of any fact respecting, or any change in,
the Debtor's financial condition or affairs that might come to the knowledge of
the Corporation at any time, whether or not the Corporation knows or believes or
has reason to know or believe that any such fact or change is unknown to the
Guarantor or might (or does) materially increase the risk of the Guarantor
hereunder.
Section 10. Representations of Guarantor. The Guarantor hereby
represents and warrants the following to the Corporation:
(a) The Guarantor is fully capable and empowered
(being under no legal restriction, limitation or disability) to enter into,
execute and deliver this Guaranty and to perform his obligations hereunder.
(b) He has duly executed and delivered this Guaranty
for valuable legal consideration, and this Guaranty constitutes the valid and
binding obligation of the Guarantor enforceable in accordance with its terms,
except as such enforceability may be affected by bankruptcy and other insolvency
laws and general principles of equity.
(c) Other than a certain lawsuit in the United
States District Court for the District of Colorado, Civil Action No. 97-D-2214,
styled Xxx Xxxxxxxxx, Minority Shareholder of Record, et al. x. Xxxxxxxx
Industries, Inc., et al., there are no pending or, to the best of the
Guarantor's knowledge, threatened actions, suits, proceedings or investigations
of a legal, equitable, regulatory, administrative or legislative nature that, if
adversely determined, might have a material adverse effect on his business,
assets, condition (financial or otherwise) or prospects or his ability to
perform the Guarantor's obligations under this Guaranty.
(d) To the best of his knowledge, after due inquiry,
no event that would constitute an Event of Default has occurred or is
continuing.
Section 11. Financial Statements. The Guarantor will furnish to the
Corporation, upon request by the Corporation, within 120 days after the end of
each calendar year, a statement of the Guarantor's financial condition, as of
the end of such calendar year, in such detail as the Corporation may reasonably
request.
Section 12. Corporation's Right of Set-Off. Upon the occurrence of
any Event of Default, the Corporation is hereby irrevocably authorized, at any
time and from time to time without notice to the Guarantor, any such notice
being expressly waived, to set-off, appropriate and apply any amount, including
any account, rebate, holdback or claim, whether or not matured, owing by the
Corporation to or for the account of the Guarantor, or any part thereof, against
the obligations of the Guarantor to the Corporation hereunder. The rights of the
Corporation under this Section 12 are in
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addition to any other rights and remedies that the Corporation may have.
Section 13. Venue. The Guarantor agrees that any suit, action or
proceeding arising out of or relating to this Guaranty may be instituted in the
Circuit Court of the City of Richmond, Virginia, or in the United States
District Court for the Eastern District of Virginia, Richmond Division (to the
extent that such court has jurisdiction), at the option of the Corporation, and
the Guarantor hereby waives any objection that he may have to such venue and
irrevocably submits to the jurisdiction of either of such courts in any such
suit, action or proceeding. Nothing herein will affect the right of the
Corporation to proceed against the Guarantor in any other jurisdiction.
Section 14. Subsequent/Prior Guaranty. A subsequent guaranty by the
Guarantor will not be deemed to be in lieu of or to supersede or terminate this
Guaranty, but will be construed as an additional or supplemental guaranty unless
otherwise expressly provided therein; and in the event that the Guarantor has
given the Corporation a previous guaranty or guaranties, this Guaranty will be
construed to be an additional or supplemental guaranty, and not in lieu thereof
or to terminate such previous guaranty or guaranties, unless expressly so
provided herein or therein.
Section 15. Events of Default. Any one or more of the following
events shall constitute a default ("Event of Default") under this Guaranty:
(a) False Statement: If any certificate,
representation, warranty, statement or other writing made herein or heretofore,
now or hereafter furnished to the Corporation by or on behalf of the Guarantor
in connection with the Settlement Documents is discovered to have been
incorrect, incomplete or misleading in any material respect on or as of the date
made or deemed made;
(b) Termination of Liability: If the Guarantor seeks
to terminate the Guarantor's liability under this Guaranty; or
(c) Default by Debtor: Default by the Debtor under
the Note or the Pledge and Security Agreement or a breach by the Partnership of
the Settlement Agreement.
Section 16. Remedies. Whenever any Event of Default shall have
happened and be continuing, the Corporation or other holder of any of the
Liabilities (a) may declare the entire unpaid principal of and interest on the
Liabilities to be immediately due and payable, (b) may take whatever action
under the Settlement Documents, at law or in equity, as may appear necessary or
desirable to collect payments then due or thereafter to become due hereunder or
to enforce observance or performance of any covenant, condition or agreement of
the Guarantor under this Guaranty, or (c) may, immediately and without further
action by the Corporation, set-off against any obligation of the Guarantor to
the Corporation hereunder, all money owed by the Corporation in any capacity to
the Guarantor and to apply the same against the Liabilities.
Section 17. Successors and Assigns. This Guaranty will inure to the
benefit of and be binding on the parties and their respective heirs, personal
representatives, successors and assigns.
Section 18. Severability. If any provision of this Guaranty or the
application thereof in any circumstance is held to be unenforceable, the
remainder of this Guaranty will not be affected thereby and will remain
enforceable.
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Section 19. Applicable Law. This Guaranty will be governed by, and
construed in accordance with, the laws of the Commonwealth of Virginia.
Section 20. Notices, Demands and Requests. All notices, demands,
requests and other communications required or permitted hereunder must be in
writing and will be deemed to have been given when delivered in person or
received by certified mail, postage prepaid, return receipt requested, (i) to
the Guarantor, at his address set forth below opposite his signature, and (ii)
to the Corporation, at its address set forth in the Note, or to such other
persons or addresses as the party entitled to notice has specified in writing to
the other parties from time to time.
Section 21. Waiver. The Guarantor hereby waives, to the extent
permitted by law, (i) the benefits of Sections 49-25 and 49-26 of the Code of
Virginia (1950), as amended, and any amendments thereto or any similar statutes
or rules of law, (ii) the benefit of any homestead or similar exemption, state
or federal, with respect to his obligations hereunder, (iii) notice of any of
the matters referred to in Section 3 of this Guaranty, (iv) notice of acceptance
of this Guaranty, (v) presentment and demand for payment of any of the
Liabilities, (vi) protest and notice of dishonor or nonpayment of any Liability,
and (vii) any demand (except as expressly specified herein), proof or notice of
nonpayment, or failure to pay or perform any of the Liabilities.
Section 22. Amendments. This Guaranty may only be amended,
supplemented or terminated in writing, signed by all of the parties.
Section 23. Entire Agreement. This Guaranty expresses the entire
understanding, and all agreements, between the parties with respect to the
subject matter hereof.
Section 24. Appointment of Secretary of the Commonwealth. If the
Corporation is unable to obtain prompt legal service upon the Guarantor at the
address shown for the Guarantor herein, the Guarantor hereby appoints the
Secretary of the Commonwealth of Virginia as his agent for the acceptance of
substituted service of process upon the Guarantor. It is understood and agreed
that the Guarantor hereby submits to the in personam jurisdiction of any duly
constituted Court of the Commonwealth of Virginia (upon compliance with the
procedural laws and rules of the Commonwealth of Virginia) wherein any action
may be brought by the holder of any Obligation.
Section 25. Notice. YOU ARE GUARANTEEING THE OBLIGATIONS DESCRIBED
IN THIS GUARANTY. IF FOR ANY REASON THE DEBTOR DOES NOT PAY OR PERFORM THE
DEBTOR'S OBLIGATIONS, YOU WILL HAVE TO PAY OR PERFORM THE DEBTOR'S OBLIGATIONS
AT YOUR EXPENSE. UPON DEFAULT, THE CORPORATION CAN COLLECT ALL OF THE
OBLIGATIONS FROM YOU WITHOUT FIRST ATTEMPTING TO COLLECT FROM THE DEBTOR. BY
SIGNING THIS GUARANTY, YOU AGREE THAT YOU HAVE RECEIVED COPIES OF AND HAVE HAD
AN OPPORTUNITY TO REVIEW ALL OF THE DOCUMENTS REFERRED TO IN THIS GUARANTY AND
THE DOCUMENTS DESCRIBED THEREIN WITH YOUR COUNSEL AND UNDERSTAND THE NATURE,
EXTENT, AND LEGAL AND PRACTICAL CONSEQUENCES OF YOUR LIABILITY UNDER THIS
GUARANTY.
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WITNESS the following signature.
/s/ Xxxxxx X. Xxxxxxxx, Xx.
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Xxxxxx X. Xxxxxxxx, Xx.
Address: 0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
COMMONWEALTH OF VIRGINIA )
) to-wit:
CITY/COUNTY OF RICHMOND )
The foregoing instrument was acknowledged before me this 10th day of
April, 1998, by Xxxxxx X. Xxxxxxxx, Xx.
My commission expires: 01/31/2000
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/s/
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Notary Public
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