American National Bank
and Trust Company of Chicago
GUARANTY
(Circuit Systems of Tennessee, Inc.)
This Guaranty is made by the undersigned, Circuit Systems of
Tennessee, Inc., a Tennessee corporation (hereinafter referred to
as the "Undersigned" or "Guarantor"), to and for the benefit of
American National Bank and Trust Company of Chicago (hereinafter
referred to as the "Bank").
R E C I T A L S:
Circuit Systems of Tennessee, L.P., a Tennessee limited
partnership, with principal offices located at 0000 Xxxx Xxxx
Xxxxxx, Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000 ("Borrower") is
executing those certain term notes in the principal amounts of Two
Million Two Hundred Seventy Thousand and No/100 Dollars
($2,270,000.00) and Two Million Eight Hundred Thousand and No/100
Dollars ($2,800,000) ( hereinafter individually a "Note" and
collectively the "Notes") and executing that certain master lease
(the "Master Lease") made as of even date herewith payable to the
order of, and held by, Bank;
The Notes and the Master Lease are the notes and master lease
referred to in that certain Loan and Security Agreement ("Loan
Agreement") among Borrower, Guarantor, Circuit Systems, Inc., an
Illinois corporation ("Circuit"), and Bank. The Notes, the
Master Lease and any documents evidencing and/or securing the
indebtedness under the Notes, Master Lease or Loan Agreement are
hereinafter referred to as the "Loan Documents."
Bank requires as a condition precedent to its making the
financial accommodations evidenced by the Notes, the Master Lease
and the Loan Agreement (the "Loan") that Guarantor guaranty the
Loan payment of principal and interest provided in the Notes, the
rent provided in the Master Lease and all other amounts provided in
the Loan Documents and the full and faithful performance by Borrower
of all of the covenants to be performed and observed pursuant to the
provisions thereof and all of the terms and conditions contained
therein.
Guarantor desires to give such guaranty to Bank in order to
induce Bank to extend such financial accommodations to Borrower.
Guarantor will be directly benefited by the financial
accommodations extended by Bank to Borrower.
1. NOW THEREFORE, FOR VALUE RECEIVED, and in consideration of
advances, credit or other financial accommodation heretofore, now
or hereafter at any time extended to the Borrower by the Bank, the
undersigned hereby unconditionally guarantee(s) the full and prompt
payment to the Bank at maturity, whether by acceleration or
otherwise, and at all times thereafter of any and all
"Indebtedness". "Indebtedness" shall mean obligations and
liabilities of every kind and nature of the Borrower to the Bank,
including principal, interest and lease payments, however
evidenced, whether now existing or hereafter created or arising,
directly or indirectly, primary or secondary, absolute or
contingent, due or to become due, or joint or several, and however
owned, held or acquired, whether through discount, overdraft,
returned checks, purchase, direct loan or as collateral, or
otherwise.
The undersigned further unconditionally guarantees the prompt,
full and faithful performance and discharge by the Borrower of all
of the terms, conditions, agreements, representations and
warranties on the part of the Borrower contained in any agreement,
or in any modification or addenda thereto or substitution thereof
in connection with any advance, credit or financial accommodation
afforded by the Bank to the Borrower.
The undersigned further agrees to pay all reasonable expenses,
including, without limitation, legal fees and court costs paid or
incurred by the Bank in endeavoring to collect the Indebtedness, or
any part thereof, in enforcing this guaranty, arising out of any
post-judgment proceedings, or in defending any suit based on any
act or omission of the Bank with respect to the Indebtedness,
collateral, or this guaranty or in connection with any Recovery
Claim hereinbelow defined (hereafter, collectively referred to as
"Expenses").
2. The term "Guaranteed Debt," as used herein, shall be deemed
to mean an amount equal to all the Indebtedness plus Expenses. The
Guaranteed Debt shall be unlimited.
3. In case of the death, incompetence, dissolution, liquidation
or insolvency (however evidenced) of the Borrower, a principal of
the Borrower, or any guarantor of the Indebtedness or in case any
bankruptcy, reorganization, debt arrangement or other proceeding
under any bankruptcy or insolvency law, or any dissolution,
liquidation or receivership proceeding, is instituted by or against
the Borrower, or any of the undersigned or any other guarantor of
the Indebtedness or the inability of the Borrower or any of the
undersigned to pay debts as they mature, or in case of the
assignment by the Borrower or any of the undersigned for the
benefit of creditors, then upon the occurrence of any such event,
all Guaranteed Debt then existing shall at the option of the Bank,
without notice to anyone, immediately become due or accrued and be
payable from the undersigned.
4. All payments received from whatever source shall be applied
toward the payment of the Indebtedness in such order of application
as the Bank may in its sole discretion, from time to time elect,
and this determination shall be conclusive upon the undersigned.
5. This guaranty shall in all respects be a continuing, absolute
and unconditional guaranty, and shall remain in full force and
effect with respect to each guarantor until written notice shall
have been actually received by the Bank by first class or
certified mail, of its discontinuance as to such guarantor, or of
the death or dissolution of such guarantor, and also until all
Guaranteed Debt created or existing before receipt of such notice
shall have been fully paid. In case of any such discontinuance, or
death or dissolution of any guarantor or guarantors and notice
thereof to the Bank, this guaranty shall nevertheless continue and
remain in force against the other guarantor or guarantors until
discontinued as to such other guarantor or guarantors as herein
provided. No compromise, settlement, release or discharge of, or
indulgence with respect to, or failure, negligence or omission to
enforce or exercise any right against, any one or more guarantors
or the fact that at any time or from time to time, all the
Guaranteed Debt may have been paid in full, shall release or
discharge the undersigned. In the event of the death of the
undersigned, this guaranty shall continue as to all Indebtedness
theretofore incurred by the Borrower even though said Indebtedness
is renewed or the time of maturity of Indebtedness is extended
without the consent of the executors or administrators of the
undersigned. This guaranty shall be valid, irrespective of the
validity, regularity or enforceability of any instrument, writing
or agreement relating to any Indebtedness, whether or not such
Indebtedness is due or to become due before or after any bankruptcy
or insolvency proceeding involving the Borrower.
6. The liability hereunder shall in no way be affected or
impaired by any of the following, any or all of which may be done
or omitted by the Bank in its sole discretion without notice to
anyone and irrespective of whether the Guaranteed Debt shall be
increased or decreased thereby and said Bank is hereby expressly
authorized in its sole discretion to make from time to time,
without notice to anyone: any sale, pledge, surrender, compromise,
settlement, exchange, release, renewal, extension, modification,
election with respect to any collateral under Section 1111 or any
other provision or section of the Bankruptcy Code now existing or
hereinafter amended; or other disposition of or with respect to any
of said Guaranteed Debt or any security or collateral therefor,
whether or not such disposition is commercially reasonable or
accomplished in a commercially reasonable manner; and such
liability shall in no way be affected or impaired by any acceptance
by the Bank of any security for, or other guarantors or obligors
of, any of the Guaranteed Debt, or by any forbearance or indulgence
by the Bank in the collection of, or any failure, negligence or
omission on its part to realize upon any thereof, or to enforce any
claims against any person or persons primarily or secondarily
liable thereon, or upon any collateral or security therefor or to
enforce any lien upon or right of appropriation of any moneys,
credits or property of the Borrower in the possession and control
of the Bank, or by an application of any payments or credits on the
Guaranteed Debt. Any act or omission of any kind or at any time
upon the part of the Bank with respect to any matter whatsoever
shall not in any manner affect or impair this guaranty nor the
liability thereunder. The undersigned hereby consents to all acts
and omissions of the Bank set forth herein.
7. In order to hold the undersigned liable hereunder and to
enforce this guaranty, there shall be no obligation on the part of
the Bank at any time to resort for payment to the Borrower, or to
any other guarantor, or any person, firm or corporation liable for
the Guaranteed Debt, or to any collateral, security, property,
liens or other rights or remedies of the Bank in respect to the
Guaranteed Debt or any part thereof, all of which is hereby
expressly waived by the undersigned.
8. All diligence in collection, and any presentment for payment,
demand, protest and/or notice, as to any and everyone, of protest,
dishonor, default or nonpayment, and notice of the creation and
existence of any and all of the Guaranteed Debt, and of any
security therefor, and of the acceptance of this guaranty, or
extensions of credit or indulgences hereunder or of any other
matters or things whatsoever relating hereto are expressly waived.
9. The granting of additional credit from time to time by the
Bank to the Borrower in excess of the amount to which the right of
recovery under this guaranty is limited or in excess of the amount
extended to the Borrower at the time this guaranty is executed by
the undersigned, without notice to the undersigned, is hereby
expressly authorized and shall in no way affect or impair this
guaranty.
10. To secure payment of the Guaranteed Debt, the undersigned
grants to Bank a security interest in all property of the
undersigned, including any and all cash, negotiable instruments,
documents of title, chattel paper, securities, certificates of
deposit, deposit accounts, other cash equivalents and other assets
delivered currently herewith or now or at any time hereafter in
transit to, or in the possession or control of the Bank, or any
agent or bailee of Bank, and all proceeds of all such property.
The undersigned agrees that the Bank shall have the rights and
remedies of a secured party under the Uniform Commercial Code of
Illinois with respect to all of the aforesaid property, including,
without limitation thereof, the right to sell or otherwise dispose
of any or all of such property. THE UNDERSIGNED WAIVES EVERY
DEFENSE, COUNTERCLAIM OR SETOFF WHICH THE UNDERSIGNED MAY NOW HAVE
OR HEREAFTER MAY HAVE AGAINST THE BORROWER OR ANY OTHER PARTY
LIABLE TO THE BANK IN ANY MANNER. As further security, any and all
debts and liabilities now or hereafter arising and owing to any of
the undersigned by the Borrower, or any other party liable to the
Bank are hereby subordinated to the Bank's claims and are hereby
assigned to the Bank. The undersigned ratifies and confirms
whatever the Bank may do pursuant to the terms hereof and with
respect to any collateral for the Guaranteed Debt, and agrees that
the Bank shall not be liable for any error of judgment or mistakes
of fact or law. The Bank may, without notice to anyone, apply or
set off any balances, credits, deposits, accounts, moneys or other
indebtedness at any time credited by or due from the Bank to any of
the undersigned against the Guaranteed Debt. Any notification of
intended disposition of any property required by law shall be
deemed reasonable and properly given if given at least ten (10)
calendar days before such disposition.
11. Should a claim ("Recovery Claim") be made upon the Bank at
any time for recovery of any amount received by the Bank in payment
of the Guaranteed Debt (whether received from the Borrower, the
undersigned pursuant hereto, or otherwise) and should the Bank
repay all or part of said amount by reason of (i) any judgment,
decree, or order of any court or administrative body having
jurisdiction over the Bank or any of its property; or (ii) any
settlement or compromise of any such Recovery Claim effected by the
Bank with the claimant (including the Borrower), the undersigned
shall remain jointly and severally liable to the Bank for the
amount so repaid to the same extent as if such amount had never
originally been received by the Bank, notwithstanding any
termination hereof or the return of this document to any of the
undersigned or the cancellation of any note, this guaranty or other
instrument evidencing any of the Indebtedness.
12. In the event the Bank shall sell, assign or transfer the
Indebtedness or Guaranteed Debt, or any part thereof, or grant
participations therein, each and every immediate or remote
successive assignee, transferee, holder of or participant therein,
of all or any part of the Indebtedness or Guaranteed Debt shall
have the right to enforce this guaranty by suit or otherwise for
the benefit of such assignee, transferee, holder or participant, as
fully as if such assigned transferee, holder or participant were
herein by name specifically given such rights, powers and benefits;
but the Bank shall have an unimpaired, prior and superior right to
enforce this guaranty for its benefit as to so much of the
Indebtedness or Guaranteed Debt as it has not been sold, assigned
or transferred.
13. No release or discharge of any one or more of the undersigned
(if there is more than one guarantor), or of any other person,
whether primarily or secondarily liable for and obligated with
respect to the Guaranteed Debt, or the institution of bankruptcy,
receivership, insolvency, reorganization, dissolution or
liquidation proceedings by or against any such guarantor or person,
or the entry of any restraining or other order in any such
proceeding, shall release or discharge the undersigned or any other
guarantor of the Guaranteed Debt, or any other person, firm or
corporation liable to the Bank for the Guaranteed Debt, unless and
until all of the Guaranteed Debt shall have been fully paid and
this guaranty stamped "Canceled" and returned to the undersigned.
14. No delay on the part of the Bank in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or
partial exercise by the Bank of any right or remedy shall preclude
any other or further exercise thereof, or the exercise of any other
right or remedy. No action of the Bank permitted hereunder shall
in any way affect or impair the rights of the Bank and the
obligation of the undersigned under this guaranty.
15. To the extent that the Borrower or any of the undersigned is a
corporation, limited liability company or partnership, all
references herein to the Borrower and to the undersigned,
respectively, shall be deemed to include any successor or
successors, whether immediate or remote, to such corporation,
limited liability company or partnership.
16. This guaranty has been delivered at Chicago, Illinois, and
shall be construed according to the laws of the State of Illinois,
in which state it shall be performed by the undersigned. All
actions arising directly or indirectly as a result or in
consequence of this guaranty shall, in the sole and absolute
discretion of the Bank, be instituted and litigated only in courts
having situs in the City of Chicago, Illinois, and the undersigned
hereby consents to the jurisdiction of any State or Federal Court
located and having its situs in said city and waives any right to
transfer or change the venue of any litigation.
17. Wherever possible, each provision of this guaranty shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this guaranty shall be
prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the
remaining provisions of this guaranty.
18. It is agreed that the undersigned's liability hereunder is
several and is independent of any other guaranties at any time in
effect with respect to all or any part of the Indebtedness and that
the undersigned's liability hereunder may be enforced regardless of
the existence of any such other guaranties.
19. This guaranty, and each and every part hereof, shall be
binding upon the undersigned and upon the heirs, legal
representatives, successors and assigns of the undersigned, and
shall inure to the benefit of the Bank, its successors and assigns.
20. If the undersigned guarantor is a corporation, then and in
such event, the undersigned guarantor expressly represents and
warrants unto the Bank that the execution and delivery of this
guaranty has been duly authorized by resolutions heretofore duly
adopted by its Board of Directors in accordance with law and its
by-laws, that said resolutions have not been amended nor rescinded,
are in full force and effect, that the officers of the undersigned
executing and delivering this guaranty, for and on behalf of the
undersigned, are duly authorized and empowered so to act. The Bank
in accepting this guaranty is expressly relying upon the aforesaid
representations and warranties.
21. This guaranty constitutes the entire agreement between the
parties relating to the subject matter hereof and is the final and
complete expression of their intent. No prior or contemporaneous
negotiations, promises, agreements, covenants or representations of
any kind or nature, whether made orally or in writing, have been
made by the parties, or any of them, in negotiations leading to
this guaranty or relating to the subject matter hereof, which are
not expressly contained herein, or which have not become merged and
finally integrated into this guaranty; it being the intention of
the parties hereto that in the event of any subsequent litigation,
controversy or dispute concerning the terms and provisions of this
guaranty, no party shall be permitted to offer to introduce oral or
extrinsic evidence concerning the terms and conditions hereof that
are not included or referred to herein and not reflected in
writing. This guaranty can only be changed, modified, waived or
discharged if consented to in a writing duly signed and delivered
on behalf of the Bank. No conditions exist to the legal
effectiveness of this guaranty.
22. THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING (i) TO ENFORCE OR DEFEND ANY
RIGHTS UNDER OR IN CONNECTION WITH THIS GUARANTY OR AN AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH,
OR (ii) ARISING FROM ANY DISPUTE OR CONTROVERSY IN CONNECTION WITH
OR RELATED TO THIS GUARANTY, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
SIGNED AND SEALED by the undersigned effective this 24 day of
July, 1997.
ADDRESS: CIRCUIT SYSTEMS OF TENNESSEE, INC.,
a Tennessee corporation
c/o Circuit Systems, Inc.
0000 Xxxx Xxxx Xxxxxx By: /s/ Xxxxx X. Xxxx
Elk Xxxxx Xxxxxxx, Xxxxxxxx 00000 Its: Vice-President
STATE OF ILLINOIS )
) SS:
COUNTY OF XXXX )
The Undersigned, a Notary Public within and for said County,
in the State aforesaid, duly commissioned and acting, hereby
certifies that on this 24th day of July, 1997, personally
appeared before me Xxxxx X. Xxxx, the Vice-President of Circuit
Systems of Tennessee, Inc., to me personally well known and known
to be the person who signed the foregoing instrument, and who,
being by me duly sworn, stated and acknowledged that he is the
Vice-President of said corporation and that he signed and delivered
the same on behalf of said corporation, with authority, as his/her
and its free and voluntary act and deed for the uses and purposes
therein mentioned and set forth.
WITNESS my hand and seal as such Notary Public the day and
year in this certificate above written.
/s/ Xxxxxxx Xxxxxxx
Notary Public
My commission expires: April 15, 2000
