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EXHIBIT 10.15(a)
GUARANTY
THIS GUARANTY dated as of October 21, 1994, is executed in favor of
BANK OF AMERICA ILLINOIS (individually and as Agent) and the other Banks which
are or hereafter become parties to the Credit Agreement referred to below.
W I T N E S E T H:
WHEREAS, Larizza Industries, Inc. (the "Company") has entered into a
Credit Agreement dated as of May 6, 1994 (as amended or otherwise modified from
time to time, the "Credit Agreement") with various financial institutions (the
"Banks") and Bank of America Illinois, individually and as agent (in its
capacity as agent, together with any successor in such capacity, the "Agent"),
pursuant to which the Banks have agreed to make loans to, and issue or
participate in letters of credit for the account of, the Company; and
WHEREAS, each of the undersigned will benefit from the making of loans
and issuing letters of credit pursuant to the Credit Agreement and is willing
to guaranty the Liabilities (as defined below) as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the undersigned hereby
jointly and severally unconditionally, as primary obligor and not merely as
surety, guarantees the full and prompt payment when due, whether by
acceleration or otherwise, and at all times thereafter, of all obligations
(monetary or otherwise) of the Company to each of the Banks and the Agent,
howsoever created, arising or evidenced, whether direct or indirect, absolute
or contingent, now or hereafter existing, or due or to become due, including
(without limitation) all obligations which arise out of or in connection with
the Credit Agreement, the Notes (as defined in the Credit Agreement), any other
Loan Document (as defined in the Credit Agreement) or any Hedging Agreement (as
defined in the Credit Agreement), in each case as the same may be amended,
modified, extended or renewed from time to time (all such obligations being
herein collectively called the "Liabilities"); provided, however, that the
liability of each of the undersigned hereunder shall be limited to the maximum
amount of the Liabilities which such undersigned may guaranty without violating
any fraudulent conveyance or fraudulent transfer law (plus all costs and
expenses paid or incurred by the Agent or any Bank in enforcing this Guaranty
against such undersigned).
Each of the undersigned agrees that, in the event of the dissolution
or insolvency of the Company or any undersigned, or the inability or failure of
the Company or any undersigned to pay debts
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as they become due, or an assignment by the Company or any undersigned for the
benefit of creditors, or the occurrence of any other Event of Default
(as defined in the Credit Agreement) under Section 12.1.4 of the Credit
Agreement, and if such event shall occur at a time when any of the Liabilities
may not then be due and payable, such undersigned will pay to the Agent for the
account of the Banks forthwith on demand the full amount which would be payable
hereunder by such undersigned if all Liabilities were then due and payable.
To secure all obligations of each of the undersigned hereunder, the
Agent and each Bank shall have a lien on and security interest in, and may,
without demand or notice of any kind, at any time and from time to time when
any Unmatured Event of Default under Section 12.1.4 of the Credit Agreement or
any Event of Default under the Credit Agreement exists, appropriate and apply
toward the payment of such obligations, in such order of application as the
Agent or the Banks may elect, any and all balances, credits, deposits, accounts
or moneys of or in the name of such undersigned now or hereafter with the Agent
or such Bank and any and all property of every kind or description of or in the
name of such undersigned now or hereafter, for any reason or purpose
whatsoever, in the possession or control of, or in transit to, the Agent or
such Bank or any agent or bailee for the Agent or such Bank.
This Guaranty shall in all respects be a continuing, absolute and
unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of any of the undersigned
or that at any time or from time to time no Liabilities are outstanding) until
all Commitments (as defined in the Credit Agreement) have terminated and all
Liabilities have been paid in full.
The undersigned further agree that if at any time all or any part of
any payment theretofore applied by the Agent or any Bank to any of the
Liabilities is or must be rescinded or returned by the Agent or such Bank for
any reason whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of the Company or any of the undersigned), such
Liabilities shall, for the purposes of this Guaranty, to the extent that such
payment is or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Agent or such Bank, and this
Guaranty shall continue to be effective or be reinstated, as the case may be,
as to such Liabilities, all as though such application by the Agent or such
Bank had not been made.
The Agent or any Bank may, from time to time, at its sole discretion
and without notice to the undersigned (or any of them), take any or all of the
following actions without affecting the obligations of the undersigned (or any
of them) hereunder: (a) retain or obtain a security interest in any property to
secure any
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of the Liabilities or any obligation hereunder, (b) retain or obtain
the primary or secondary obligation of any obligor or obligors, in addition to
the undersigned, with respect to any of the Liabilities, (c) extend or renew
any of the Liabilities for one or more periods (whether or not longer than the
original period), alter or exchange any of the Liabilities, or release or
compromise any obligation of any of the undersigned hereunder or any obligation
of any nature of any other obligor with respect to any of the Liabilities, (d)
release its security interest in, or surrender, release or permit any
substitution or exchange for, all or any part of any property securing any of
the Liabilities or any obligation hereunder, or extend or renew for one or more
periods (whether or not longer than the original period) or release,
compromise, alter or exchange any obligations of any nature of any obligor with
respect to any such property, and (e) resort to the undersigned (or any of
them) for payment of any of the Liabilities when due, whether or not the Agent
or such Bank shall have resorted to any property securing any of the
Liabilities or any obligation hereunder or shall have proceeded against any
other of the undersigned or any other obligor primarily or secondarily
obligated with respect to any of the Liabilities.
Each of the undersigned hereby expressly waives: (a) notice of the
acceptance by the Agent or any Bank of this Guaranty, (b) notice of the
existence or creation or nonpayment of all or any of the Liabilities, (c)
presentment, demand, notice of dishonor, protest, and all other notices
whatsoever, (d) all diligence in collection or protection of or realization
upon any Liabilities or any security for or guaranty of any Liabilities and (e)
any claim or right which such undersigned may now have or hereafter acquire
against the Company or any other person or entity that arises from the
existence, payment, performance or enforcement of the obligations of such
undersigned under this Guaranty, including (without limitation) any right of
subrogation, reimbursement, restitution, exoneration, contribution or
indemnification.
Each of the undersigned further agrees to pay all expenses (including
attorneys' fees and legal expenses) paid or incurred by the Agent or any Bank
in endeavoring to collect the Liabilities of such undersigned, or any part
thereof, and in enforcing this Guaranty against such undersigned.
The creation or existence from time to time of additional Liabilities
to the Agent or the Banks or any of them is hereby authorized, without notice
to the undersigned (or any of them), and shall in no way affect or impair the
rights of the Agent or the Banks or the obligations of the undersigned under
this Guaranty, including each of the undersigned's guaranty of such additional
Liabilities.
The Agent and any Bank may from time to time, in accordance with
Section 14.9 of the Credit Agreement, without notice to the undersigned (or any
of them), assign or transfer any or all of the
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Liabilities or any interest therein; and, notwithstanding any such assignment
or transfer or any subsequent assignment or transfer thereof, such Liabilities
shall be and remain Liabilities for the purposes of this Guaranty, and each and
every immediate and successive assignee or transferee of any of the Liabilities
or of any interest therein shall, to the extent of the interest of such
assignee or transferee in the Liabilities, be entitled to the benefits of this
Guaranty to the same extent as if such assignee or transferee were a Bank.
No delay on the part of the Agent or any Bank in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Agent or any Bank of any right or remedy shall preclude other
or further exercise thereof or the exercise of any other right or remedy; nor
shall any modification or waiver of any provision of this Guaranty be binding
upon the Agent or the Banks except as expressly set forth in a writing duly
signed and delivered on behalf of the Agent. No action of the Agent or any
Bank permitted hereunder shall in any way affect or impair the rights of the
Agent or any Bank or the obligations of the undersigned under this Guaranty.
For purposes of this Guaranty, Liabilities shall include all obligations of the
Company to the Agent or any Bank arising under or in connection with the Credit
Agreement, any Note, any other Loan Document or any Hedging Agreement,
notwithstanding any right or power of the Company or anyone else to assert any
claim or defense as to the invalidity or unenforceability of any obligation,
and no such claim or defense shall affect or impair the obligations of the
undersigned hereunder.
Pursuant to the Credit Agreement, (a) this Guaranty has been delivered
to the Agent and (b) the Agent has been authorized to enforce this Guaranty on
behalf of itself and each of the Banks. All payments by the undersigned
pursuant to this Guaranty shall be made to the Agent for the ratable benefit of
the Banks.
This Guaranty shall be binding upon the undersigned and the successors
and assigns of the undersigned; and to the extent that the Company or any of
the undersigned is either a partnership or a corporation, all references herein
to the Company and to the undersigned, respectively, shall be deemed to include
any successor or successors, whether immediate or remote, to such partnership
or corporation. The term "undersigned" as used herein shall mean all parties
executing this Guaranty and each of them, and all such parties shall be jointly
and severally obligated hereunder.
This Guaranty has been delivered at Chicago, Illinois, and shall be
construed in accordance with and governed by the internal laws of the State of
Illinois. 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
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prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Guaranty.
This Guaranty may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed to be an original but all such counterparts shall together
constitute one and the same Guaranty. At any time after the date of this
Guaranty, one or more additional persons or entities may become parties hereto
by executing and delivering to the Agent a counterpart of this Guaranty.
Immediately upon such execution and delivery (and without any further action),
each such additional person or entity will become a party to, and will be bound
by all of the terms of, this Guaranty.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OF THE UNDERSIGNED, AND (BY
ACCEPTING THE BENEFITS HEREOF) EACH OF THE AGENT AND EACH BANK, HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE.
EACH OF THE UNDERSIGNED FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS SET FORTH OPPOSITE ITS
SIGNATURE HERETO (OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING
TO THE AGENT AS ITS ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH OF THE UNDERSIGNED, AND (BY
ACCEPTING THE BENEFITS HEREOF) EACH OF THE AGENT AND EACH BANK, HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE UNDERSIGNED, AND (BY ACCEPTING THE BENEFITS HEREOF) EACH OF THE
AGENT AND EACH BANK, HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY, ANY OTHER
LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR
WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR
ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE
FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE
A COURT AND NOT BEFORE A JURY.
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IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered
as of the day and year first above written.
HUGHES PLASTICS, INC.
By: /s/ TERENCE C. SEIKEL
Address: Title: Treasurer
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The undersigned is executing a
counterpart hereof for purposes
of becoming a party hereto:
_______________________________
By:____________________________
Title:_________________________
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