GUARANTY OF PAYMENT
THIS GUARANTY is made this 14th day of November, 1996, by
_________________________ (the "Guarantor") in favor of XXXXXXX BANK, N.A. (the
"Bank").
W I T N E S S E T H :
Armor Holdings, Inc. (the "Borrower") and the Bank are parties to a
Loan Agreement (as amended or restated from time to time, the "Loan Agreement")
of even date herewith. The Borrower, pursuant to the Loan Agreement, has
executed and delivered a promissory note (as amended, extended or renewed from
time to time, the "Note") of even date herewith in the original principal
amount of $10,000,000.00 in favor of the Bank. As an inducement to the Bank to
extend, renew, or continue credit to the Borrower, the Guarantor has agreed to
guarantee certain Obligations (as defined below) of the Borrower and to execute
and deliver this Guaranty.
NOW, THEREFORE, in consideration of loans, advances or other credit
now or hereafter made or extended by the Bank to the Borrower, and to enable
such loans, advances or other credit to be maintained or obtained by the
Borrower, and for other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the Guarantor, the Guarantor hereby agrees
with the Bank as follows:
1. The Guarantor hereby irrevocably guarantees the payment to the
Bank when due, whether by acceleration or otherwise, of all Obligations of the
Borrower to the Bank (subject, however, to the limitations set forth in
paragraph 23 hereof). -As used in this Agreement, the -term "Obligations"
means: (a) all principal, interest, costs, expenses and other amounts now or
hereafter due under the Note (including, without limitation, all principal
amounts advanced thereunder before, on or after the date hereof); and (b) all
other amounts now or hereafter payable by the Borrower under any of the Loan
Documents (as such term is defined in the Loan Agreement).
2. If any of the Obligations are not paid when due, after the
expiration of any applicable cure period, the Guarantor will forthwith pay all
such Obligations of the Borrower to the Bank (subject, however, to the
limitations set forth in paragraph 23 hereof). The Guarantor further agrees to
pay the Bank, upon demand, all reasonable costs and expenses, including
reasonable attorneys' and legal assistants' fees incurred in connection with
any trial or appellate proceedings or otherwise, that may be incurred by the
Bank in exercising its rights and remedies with respect to payment of the
Obligations or its rights and remedies against the Guarantor under this
Agreement.
3. The Guarantor hereby:
(a) Assents to all terms and agreements heretofore or
hereafter made by the Borrower with the Bank;
(b) Agrees to make all payments hereunder in lawful
money of the United States of America in immediately available funds without
setoff or counterclaim;
(c) Consents that the Bank may, without further consent
from or notice to the Guarantor, and without in any way diminishing the
obligation of the Guarantor under this Agreement:
(i) Exchange, release or surrender to the
Borrower or to any guarantor, pledgor, or grantor any collateral, or waive,
release or subordinate any security interest, in whole or in part, now or
hereafter held as security for any of the Obligations;
(ii) Accept any new collateral for the
Obligations;
(iii) Waive or delay the exercise of any of its
rights or remedies against the Borrower or any other person or
entity, including, without limitation, any other guarantor;
(iv) Release any other guarantor or
endorser from any liability;
(v) Renew, extend, or modify the terms of
any of the Obligations or any instrument or agreement evidencing the same;
(vi) Apply payments by the Borrower, the
Guarantor, or any other person or entity, to the Obligations or to other
indebtedness of any such person or entity in such order as the Bank, in its
discretion, deems appropriate;
(vii) Abstain from taking advantage of or
realizing upon any security interest or other Guarantee;
(d) Waives all notice of:
(i) The Bank's acceptance hereof or its
intention to act, or its action, in reliance hereon;
(ii) The present existence or future
incurring of any of the Obligations or any terms or amounts thereof or any
change therein;
(iii) Any default by the Borrower, any
endorser, surety, pledgor, grantor of security, or guarantor; and
(iv) The obtaining or release of any
guaranty or surety agreement (in addition to this Agreement), pledge,
assignment, or other security for any of the Obligations: and
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(e) Waives notice of presentment, demand, notice of
demand, presentment for payment, protest, notice of nonpayment or dishonor,
notice of protest and any other demands and notices required by law in
connection with this Guaranty or any instrument evidencing any Obligations,
except as such waiver may be expressly prohibited by law, and waives any
requirement that suit against it under this Agreement be brought within any
period of time shorter than the general statute of limitations applicable to
contracts under seal.
4. The Guarantor hereby waives and agrees not to assert or take
advantage of:
(a) any defense arising by virtue of:
(i) the lack of authority, death or
disability of any other party, or revocation hereof by any other party;
(ii) the failure of the Bank to file or
enforce a claim of any kind; or
(iii) the failure of the Bank to record any
document or perfect any lien;
(b) notice of the existence, creation or incurring of
any new or additional indebtedness, or obligation or any action or non-action
on the part of the Borrower, the Bank, any endorser, any guarantor under this
or any other instrument, any creditor of the Borrower, or any other person
whomsoever, in connection with any obligation or evidence of indebtedness held
by the Bank as collateral or in connection with any indebtedness or any
obligation hereby guaranteed;
(c) any defense based upon an election of remedies by
the Bank, including without limitation, an election to proceed by non-judicial
rather than judicial foreclosure (if the right to proceed by non-judicial
foreclosure is available to the Bank); and
(d) any duty on the part of the Bank to disclose to the
Guarantor any facts which the Bank may now or hereafter know about the Borrower
or any security for the Obligations, regardless of whether the Bank has reason
to believe that any such facts materially increase the risk beyond that which
the Guarantor intends to assume or has reason to believe that such facts are
unknown to the Guarantor or has a reasonable opportunity to communicate such
facts to the Guarantor, it being understood and agreed that the Guarantor is
fully responsible for being and keeping informed of the financial condition of
the Borrower and the status of any security for the Obligations and of all
circumstances bearing on the risk of non-payment of all Obligations hereby
guaranteed.
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5. The Guarantor hereby waives any right or claim of right to cause
a marshaling of any of the Borrower's assets or the assets of any other party
now or hereinafter held as security for any Obligations.
6. The Bank's rights hereunder shall not be impaired or stayed as a
result of any dissolution of the Borrower or any bankruptcy or insolvency
proceedings involving the Borrower (including, without limitation, any
discharge of the Borrower or its debts in any such proceedings). The
Obligations shall include, without limitation, any amounts advanced to or for
the benefit of the Borrower or any successor thereto from and after the
occurrence or commencement of any such dissolution or proceedings. If any such
bankruptcy or insolvency proceedings are commenced by or against the Borrower,
the full amount of all Obligations then outstanding shall become immediately
due and payable by the Guarantor (whether or not the Borrower then owes the
Obligations on an accelerated basis).
7. The liability of the Guarantor under this Agreement is absolute,
irrevocable, unconditional, unlimited (except as set forth in paragraph 23
hereof) and continuing, without regard to the liability of any- other person,
and shall not in any manner be affected by reason of any action taken or not
taken by the Bank, nor by the partial or complete unenforceability or
invalidity of any other guaranty or surety agreement, pledge, assignment or
other security for any of the Obligations. Failure to sign this or any other
guarantee by any other person shall not discharge the liability of any signer.
No delay in making demand on the Guarantor for satisfaction of its liability
hereunder shall prejudice the Bank's right to enforce such satisfaction. All of
the Bank's rights and remedies shall be cumulative and any failure of the Bank
to exercise any right hereunder shall not be construed as a waiver of the right
to exercise the same or any other right at any time, and from time to time,
thereafter.
8. This Guaranty shall continue in effect until the last to occur
of: (a) the payment of all Obligations, including any renewals, extensions or
modifications thereof, in full if such payments of the Obligations have become
final and are not subject to being refunded as a preference or fraudulent
transfer under the Bankruptcy Code or other applicable law; and (b) the
termination of all loan agreements, loan documents and loan commitments between
the Borrower and the Bank.
9. This Guaranty is fully enforceable regardless of any defenses
which the Borrower may assert on the underlying debt, including but not limited
to failure of consideration, breach of warranty, payment, statute of frauds,
statute of limitations, accord and satisfaction, and usury.
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10. The Guarantor agrees that, if at any time all or any part of
any payment previously applied by the Bank to any of the Obligations must be
returned by the Bank for any reason, whether by court order, administrative
order, or settlement, the Guarantor shall be liable for the full amount
returned as if such amount had never been received by the Bank, notwithstanding
any termination of this Agreement or the cancellation of any note or other
agreement evidencing any of the Obligations.
11. The Bank shall have the right to proceed against the Guarantor
without first proceeding against the Borrower or any property securing payment
of the Note, or any of the loan documents, or any other guarantor or endorser
of the Note or the Obligations.
12. The Guarantor waives and agrees not to assert any right to
which it may be or become entitled, whether by subrogation, contribution,
indemnity, reimbursement or otherwise, against the Borrower, any other
guarantor or any of their respective properties, by reason of the performance
by the Guarantor of its obligations under this Agreement, under any pledge or
security agreement or otherwise.
13. To secure the prompt payment and performance of the
Obligations, the Guarantor grants to the Bank a continuing first lien security
interest in all property of the Guarantor now or at any time hereafter in the
possession of the Bank and all proceeds of all such property. The Guarantor
agrees that the Bank shall have the rights and remedies of a secured party
under the Uniform Commercial Code as adopted by the State of Florida with
respect to such property, including, without limitation the right to sell or
otherwise dispose of any or all of such property. The Bank may, without further
notice to anyone, apply or set off any balances, credits, deposits, accounts,
monies or other indebtedness at any time created by or due from the Bank to the
Guarantor against the amounts due hereunder. Any notification of intended
disposition of any property required by law shall be deemed reasonable and
properly given if given at least five (5) calendar days before such
disposition.
14. The Guarantor represents and warrants to the Bank that:
(a) The Guarantor: (i) is duly organized, validly
existing and in good standing under the laws of the state or country of its
incorporation and in all other states where the nature and extent of the
business transacted by it or the ownership of its assets makes such
qualification necessary (except where the failure to be so qualified would not
have a material adverse effect on the Guarantor); (ii) has the corporate power
and authority to own its properties and to carry on its business as now being
conducted; (iii) to the extent necessary, is qualified to do
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business in the State of Florida; (iv) is in compliance in all material
respects with all laws, orders, regulations, authorizations and similar matters
(collectively the "Governmental Requirements") of all governmental authorities,
whether federal, state, county, or municipal (collectively the "Governmental
Authority") applicable to it, except where the failure to be in compliance will
not have a material adverse effect on the Guarantor; (v) represents that all of
its issued and outstanding stock is fully paid and nonassessable, there are no
outstanding rights or options to acquire any additional stock, and its stock
has not been pledged or encumbered in any manner whatsoever; and (vi) has not
amended or modified its articles of incorporation or its bylaws except as
previously disclosed in writing to the Bank prior to the execution hereof.
(b) The execution, delivery and performance by the
Guarantor of this Guaranty: (i) is within the corporate powers and purposes of
the Guarantor; (ii) has been duly authorized by all requisite corporate action
of the Guarantor; (iii) does not require the approval of any Governmental
Authority; and (iv) will not violate any material Governmental Requirement, the
articles of incorporation and bylaws of the Guarantor or any material
indenture, agreement or other instrument to which the Guarantor is a party or
by which it or any of its property is bound, or be in conflict with, result in
a breach of or constitute (with due notice or the lapse of time, or both) a
default under any such material indenture, agreement or other instrument, or
result in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of its property or assets, except as contemplated by
the provisions of this Guaranty.
(c) This Guaranty when executed and delivered by the
Guarantor will constitute the legal, valid and binding obligation of the
Guarantor enforceable in accordance with the terms hereof
(d) Except as previously disclosed by the Guarantor to
the Bank in writing, there are no judgments outstanding against the Guarantor
and there is no action, suit, proceeding, or investigation now pending (or to
the best of the Guarantor's knowledge after diligent inquiry threatened)
against, involving or affecting the Guarantor or any of its properties or any
part thereof, at law, in equity or before; any Governmental Authority that if
adversely determined as to the Guarantor, would result in a material adverse
change in the business or financial condition of the Guarantor, or the
Guarantor's operation and ownership of any of its properties, nor to the
Guarantor's best knowledge is there any basis for such action, suit,
proceeding, or investigation.
(e) The Guarantor is not insolvent and will not be
rendered insolvent by the execution, delivery, payment and
performance of this Guaranty.
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(f) Until the Obligations have been paid and performed
in full and the Guarantor shall have performed all of its obligations
hereunder, the Guarantor shall not, directly or indirectly, sell, convey, or
transfer or permit to be sold, conveyed, or transferred any of its assets to
any party or entity to which the Guarantor is related or in which the Guarantor
has an interest except on arm's-length terms for fair value in the ordinary
course of business and excePt as otherwise permitted in the Loan Agreement.
15. The Guarantor acknowledges that the Bank has relied upon the
Guarantor's representations, has made no independent investigation of the truth
thereof and is not charged with any knowledge contrary thereto that may have
been received by any officer, director, employee, or shareholder of the Bank.
The Guarantor further acknowledges that it has not been induced to execute and
deliver this Guaranty as a result of, and is not relying upon, any
representations, warranties, agreements, or conditions, whether express or
implied, written or oral, by the Bank or by any officer, director, employee, or
shareholder of the Bank.
16. The Guarantor agrees that there shall be no material change (a
material change is agreed to be more than 25%) in the ownership or control of
the Guarantor without the prior express written consent of the Bank.
17. Notwithstanding anything to the contrary contained in this
Guaranty or in the Note or the Loan Documents, the parties intend that any
interest for which the Guarantor is obligated hereunder shall not exceed the
maximum amount of interest permitted to be enforced against the Guarantor under
the applicable laws relating to usury.
18. The Guarantor agrees that this Agreement shall be governed by
the substantive law of the State of Florida, without regard to principles of
conflicts of laws.
19. Without in any way limiting the foregoing, the Guarantor hereby
waives any other act or omission of the Bank which may change the scope of the
Guarantor's risk.
20. All communications, notices or demands provided for hereunder
shall be sent by first class mail, by courier, by hand or by certified mail as
follows or to such other address with respect to any party as such party shall
notify the others in writing:
To the Bank: Xxxxxxx Bank, N.A.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Corporate Banking Group
To the Guarantor: ____________________________
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000 Xxxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attn: President
With a copy to:
Xxxx Xxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Each such communication, notice or demand shall be deemed given: (i) when
deposited in the mail with proper postage affixed if sent by mail; or (ii) when
actually delivered to the appropriate address if sent by courier or by hand.
21. This Agreement shall inure to the benefit of the Bank, its
successors and assigns, and to any person to whom the Bank may grant an
interest in any of the Obligations, and shall be binding upon the Guarantor and
its respective successors and assigns. This Agreement shall not be modified
except by instrument in writing signed by Guarantor and the Bank. No waiver by
the Bank of any term hereof shall be valid unless the Bank has executed a
written waiver of such term
22. This Agreement is intended to take effect as a document under
seal.
23. Notwithstanding any contrary provision set forth herein, the
liability of the Guarantor with respect to the Obligations shall not exceed at
any time the Maximum Amount (as defined herein). The "Maximum Amount" shall
mean the greater of:
(a) the aggregate amount of all advances to the
Guarantor made directly or indirectly with the proceeds of the
Note or other Loan Documents; or
(b) 95% of: (i) the fair salable value of the assets of the
Guarantor as of the date hereof; minus (ii) the total liabilities of the
Guarantor (including contingent liabilities, but excluding liabilities of the
Guarantor under this Guaranty and the other Loan Documents executed by the
Guarantor) as of the date hereof (except, however, that if the calculation of
the Maximum Amount in the manner provided in this subparagraph (b) as of the
date payment is required of the Guarantor pursuant to this Guaranty would
result in a greater positive number, then the Maximum Amount shall be deemed to
be such greater positive number).
IN WITNESS WHEREOF, the Guarantor, intending to be legally bound
hereby, has duly executed this Guaranty of Payment on or as of the date and
year first above written.
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[GUARANTOR]
By: _____________________
Its: _________________
(Corporate Seal)
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STATE OF GEORGIA
COUNTY OF CAMDEN
The foregoing instrument was executed, acknowledged and delivered
before me this ______ day of November, 1996, by ___________ the _______________
of _______________________, on behalf of the corporation, in Camden County,
Georgia.
Notary Public, State and County
aforesaid
Print Name:____________________
My Commission Expires:
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