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EXHIBIT 10.14
CORPORATE GUARANTY
Date: August 7, 1996
General Electric Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To induce you to enter into, purchase or otherwise acquire, now or at
any time hereafter, any promissory notes, security agreements, chattel
mortgages, pledge agreements, conditional sale contracts, lease agreements,
and/or any other documents or instruments evidencing or relating to, any lease,
loan, extension of credit or other financial accommodation (collectively
"Account Documents" and each an "Account Document") to ▇▇▇▇▇▇ METALCRAFT CO., a
corporation organized and existing under the laws of the State of Illinois
("Customer"), but without in any way binding you to do so, the undersigned, for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, does hereby guarantee to you, your successors and assigns, the due
regular and punctual payment of any sum or sums of money which the Customer may
owe to you now or at any time hereafter, whether evidenced by an Account
Document, on open account or otherwise, and whether it represents principal,
interest, rent, late charges, indemnities, an original balance, an accelerated
balance, liquidated damages, a balance reduced by partial payment, a deficiency
after sale or other disposition of any leased equipment, collateral or security,
or any other type of sum of any kind whatsoever that the Customer may owe to
you now or at any time hereafter, and does hereby further guarantee to you,
your successors and assigns, the due, regular and punctual performance of any
other duty or obligation of any kind or character whatsoever that the Customer
may owe to you now or at any time hereafter (all such payment and performance
obligations being collectively referred to as "Obligations"). Undersigned does
hereby further guarantee to pay upon demand all losses, costs, attorneys' fees
and expenses which may be suffered by you by reason of Customer's default or
default of the undersigned.
This Guaranty is a guaranty of prompt payment and performance (and not
merely a guaranty of collection). Nothing herein shall require you to first
seek or exhaust any remedy against the Customer, its successors and assigns, or
any other person obligated with respect to the Obligations, or to first
foreclose, exhaust or otherwise proceed against any leased equipment,
collateral or security which may be given in connection with the Obligations.
It is agreed that you may, upon any breach or default of the Customer, or at
any time thereafter, make demand upon the undersigned and receive payment and
performance of the Obligations, with or without notice or demand for payment or
performance by the Customer, its successors or assigns, or any other person.
Suit may be brought and maintained against the undersigned, at your election,
without joinder of the Customer or any other person as parties thereto. The
obligations of each signatory to this Guaranty shall be joint and several.
The undersigned agrees that its obligations under this Guaranty shall
be primary, absolute, continuing and unconditional, irrespective of and
unaffected by any of the following actions or circumstances (regardless of any
notice to or consent of the undersigned): (a) the genuineness, validity,
regularity and enforceability of the Account Documents or any other document;
(b) any extension, renewal, amendment, change, waiver or other modification of
the Account Documents or any other document; (c) the absence of, or delay in
any action to enforce the Account Documents, this Guaranty or any other
document;(d) your failure or delay in obtaining any other guaranty of the
Obligations (including, without limitation, your failure to obtain the
signature of any other guarantor hereunder); (e) the release of, extension of
time for payment or performance by, or any other indulgence granted to the
Customer or any other person with respect to the Obligations by operation of
law or otherwise; (f) the existence, value, (with or without substitution) of,
time, place and manner of any sale or other disposition of any leased
equipment, collateral or security given in connection with the Obligations, or
any other impairment (whether intentional or negligent, by operation of law or
otherwise) of the rights of the undersigned; (g) the Customer's voluntary or
involuntary bankruptcy assignment for the benefit of creditors, reorganization,
or similar proceedings affecting the Customer or any of its assets; or (h) any
other action or circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor.
This Guaranty may be terminated upon delivery to you (at your address
shown above) of a written termination notice from the undersigned. However, as
to all Obligations (whether matured, unmatured, absolute, contingent or
otherwise) incurred by the Customer prior to your receipt of such written
termination notice (and regardless of any subsequent amendment, extension
or other modification which may be made with respect to such Obligations), this
Guaranty shall nevertheless continue and remain undischarged until all such
Obligations are indefeasibly paid and performed in full.
The undersigned agrees that this Guaranty shall remain in full force
and effect or be reinstated (as the case may be) if at any time payment or
performance of any of the Obligations (or any party thereof) is rescinded,
reduced or must otherwise be restored or returned by you, all as though such
payment or performance had not been made. If, by reason of any bankruptcy,
insolvency orsimilar laws effecting the rights of creditors, you shall be
prohibited from exercising any of your rights or remedies against the Customer
or any other person or against any property, then, as between you and the
undersigned, such prohibition shall be of no force and effect, and you shall
have the right to make demand upon, and receive payment from, the undersigned
of all amounts and other sums that would be due to you upon a default with
respect to the Obligations.
Notice of acceptance of this Guaranty and of any default by the
Customer or any other person is hereby waived. Presentment, protest, demand, and
notice of protest, demand and dishonor of any of the Obligations, and the
exercise of possessory, collection or other remedies for the Obligations, are
hereby waived. The undersigned warrants that it has adequate means to obtain
from the Customer on a continuing basis financial data and other information
regarding the Customer and is not relying upon you to provide any such data or
other information. Without limiting the foregoing, notice of adverse change in
the Customer's financial condition or of any other fact which might materially
increase the risk of the undersigned is also waived.
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All settlements, compromises, accounts stated and agreed balances made in good
faith between the Customer, its successors or assigns, and you shall be binding
upon and shall not affect the liability of the undersigned.
Until such time as all obligations have been paid in full, the
undersigned hereby irrevocably and unconditionally waives and relinquishes all
statutory, contractual, common law, equitable and all other claims against the
Customer, any other obligor for any of the Obligations, any collateral
therefor, or any other assets of the Customer or any such other obligor, for
subrogation, reimbursement, exoneration, contribution, indemnification, setoff
or other recourse in respect of sums paid or payable to you by the undersigned
hereunder, and the undersigned hereby further irrevocably and unconditionally
waives and relinquishes any and all other benefits which it might otherwise
directly or indirectly receive or be entitled to receive by reason of any
amounts paid by, or collected or due from, it, the Customer or any other
obligor for any of the Obligations, or realized from any of their respective
assets.
THE UNDERSIGNED HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, ANY OF THE
RELATED DOCUMENTS, ANY DEALINGS BETWEEN US RELATING TO THE SUBJECT MATTER
HEREOF OR THEREOF, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN
US. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY, THE
OBLIGATIONS GUARANTEED HEREBY, OR ANY RELATED DOCUMENTS. IN THE EVENT OF
LITIGATION, THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
As used in this Guaranty, the word "person" shall include any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, or any government or any political
subdivision thereof.
This Guaranty is intended by the parties as a final expression of the
guaranty of the undersigned and is also intended as a complete and exclusive
statement of the terms thereof. No course of dealing, course of performance or
trade usage, nor any paid evidence of any kind, shall be used to supplement or
modify any of the terms hereof. Nor are there any conditions to the full
effectiveness of this Guaranty. This Guaranty and each of its provisions may
only be waived, modified, varied, released, terminated or surrendered, in whole
or in part, by a duly authorized written instrument signed by you. No failure
by you to exercise your rights hereunder shall give rise to any estoppel
against you, or excuse the undersigned from performing hereunder. Your waiver
of any right to demand performance hereunder shall not be a waiver of any
subsequent or other right to demand performance hereunder.
This Guaranty shall bind the undersigned's successors and assigns and
the benefits thereof shall extend to and include your successors and assigns.
In the event of default hereunder, you may at any time inspect undersigned's
records, or at your option, undersigned shall furnish you with a current
independent audit report.
If any provisions of this Guaranty are in conflict with any applicable
statute, rule or law, then such provisions shall be deemed null and void to the
extent that they may conflict therewith, but without invalidating any other
provisions hereof.
Each signatory on behalf of a corporate guarantor warrants that he had
authority to sign on behalf of such corporation and by so signing, to bind said
guarantor corporation hereunder.
IN WITNESS WHEREOF, this Guaranty is executed the day and year above
written.
▇▇▇▇▇▇ METALCRAFT HOLDING CO.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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(Signature)
Title: Vice President
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(Officer's Title)
ATTEST: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Secretary/Assistant Secretary
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(3/91)
STOCKHOLDERS CERTIFICATION
We, the undersigned, being all of the stockholders of ▇▇▇▇▇▇ METALCRAFT
HOLDING CO. ("GUARANTOR"), the corporation which is about to execute a guaranty
of the obligations of ▇▇▇▇▇▇ METALCRAFT CO. ("CUSTOMER") in favor of GENERAL
ELECTRIC CAPITAL CORPORATION (the "GECC CORPORATION"), do hereby certify to
such GECC Corporation that it is to the benefit of the Guarantor to execute
such guaranty, that the benefit to be received by the Guarantor from such
guaranty is reasonably worth the obligations thereby guaranteed, that the
Guarantor is authorized to execute said guaranty, and that the persons
executing the same on behalf of the Guarantor are duly authorized to do so in
their named capacity and to thereby bind the Guarantor to the terms of said
instrument as therein set forth.
Dated: , 19 (L.S.)
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(L.S.)
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(L.S.)
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CERTIFIED RESOLUTION
The undersigned hereby certifies that he is Secretary of ▇▇▇▇▇▇
METALCRAFT HOLDING CO., that the following resolution was passed at a meeting
of the Board of Directors of said corporation held on August 7, 1996 duly
called, a quorum being present, that said resolution has not since been revoked
or amended, and that the form of guaranty referred to therein is the form shown
attached hereto:
"RESOLVED that it is to the benefit of this corporation that it execute
a guaranty of the obligations of ▇▇▇▇▇▇ METALCRAFT CO. ("CUSTOMER") to GENERAL
ELECTRIC CAPITAL CORPORATION (the "GECC CORPORATION") and that the benefit to
be received by this corporation from such guaranty is reasonably worth the
obligations thereby guaranteed, and further that such guaranty shall be
substantially in the form annexed to these minutes, and further that the
President and Vice President (Title of Officers) of this corporation are
authorized to execute such guaranty on the behalf of this corporation."
WITNESS my hand and the seal of this corporation on this 7th day of
August, 1996.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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[Seal] Secretary
CERTIFICATION AND REPRESENTATION BY SIGNING OFFICERS
We, the undersigned, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, being
the President and Vice President of ▇▇▇▇▇▇ METALCRAFT HOLDING CO., the
corporation which executed the guaranty attached hereto, hereby jointly and
severally certify and represent to GENERAL ELECTRIC CAPITAL CORPORATION that
each of the undersigned executed the guaranty for and on behalf of said
corporation and that in so executing said instrument the undersigned were duly
authorized to do so in their named capacity as officers and by so executing to
hereby bind said guarantor corporation to the terms of said instrument as
therein set forth.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (L.S.) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (L.S.)
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Date: August 7, 1996 Date: August 7, 1996
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