UNLIMITED
CONTINUING GUARANTY
(Corporation,
Individual, Proprietorship, Partnership)
|
NAME
|
STATE
OF INCORPORATION, IF APPLICABLE
|
ASTRONICS CORPORATION
|
New
York
|
NO.
AND STREET
130
Commerce Way
|
CITY,
VILLAGE OR TOWN
|
COUNTY
|
STATE
|
|
East
Aurora
|
Erie
|
New
York
|
(GRANTOR)
|
LENDING
OFFICE, DEPARTMENT, OR
DIVISION
|
|
HSBC
Bank USA, National Association
|
Commercial
Banking
Department
|
NO. AND STREET
|
CITY
|
STATE
|
|
One HSBC Center |
Buffalo
|
New
York
|
(BANK)
|
1. |
Guaranty
of Payment.
|
(a) |
Guarantor
hereby unconditionally guarantees the full and prompt payment to
BANK when
due, whether by acceleration or otherwise, of any and all Indebtedness
(as
hereinafter defined) of Luminescent Systems, Inc. (Debtor) to
BANK.
|
(b) |
As
used in this Guaranty, “Indebtedness” shall mean any and all indebtedness
and other liabilities of Debtor to BANK of every kind and character
and
all extensions, renewals and replacements thereof, including, without
limitation, all unpaid accrued interest thereon and all costs and
expenses
payable as hereinafter provided: (i) whether now existing or
hereafter incurred; (ii) whether direct, indirect, primary, absolute,
secondary, contingent, secured, unsecured, matured or unmatured,
by
guarantee or otherwise; (iii) whether such indebtedness is from time
to time reduced and thereafter increased, or entirely extinguished
and
thereafter reincurred; (iv) whether such indebtedness was originally
contracted with BANK or with another or others; (v) whether or not
such indebtedness is evidenced by a negotiable or non-negotiable
instrument or any other writing; and (vi) whether such indebtedness
is contracted by Debtor alone or jointly or severally with another
or
others.
|
(c) |
Guarantor
acknowledges that valuable consideration supports this Guaranty,
including, without limitation, any commitment to lend, extension
of credit
or other financial accommodation, whether heretofore or hereafter
made by
BANK to Debtor; any extension, renewal or replacement of any Indebtedness,
any forbearance with respect to any Indebtedness or otherwise;
any
cancellation of an existing guaranty; any purchase of any of Debtor’s
assets by BANK; or any other valuable
consideration.
|
2. |
BANK’s
Costs and Expenses.
Guarantor agrees to pay on demand all costs and expenses of every
kind
incurred by BANK: (a) in enforcing this Guaranty; (b) in
collecting any Indebtedness from Debtor or Guarantor; (c) in
realizing upon or protecting any collateral for this Guaranty or
for
payment of any Indebtedness; and (d) for any other purpose related to
the Indebtedness or this Guaranty. “Costs and expenses” as used in the
preceding sentence shall include, without limitation, the actual
attorneys’ fees incurred by BANK in retaining counsel for advice, suit,
appeal, any insolvency or other proceedings under the Federal Bankruptcy
Code or otherwise, or for any purpose specified in the preceding
sentence.
|
3. |
Nature
of Guaranty: Continuing, Absolute and
Unconditional.
|
(a) |
This
Guaranty is and is intended to be a continuing guaranty of payment
of the
Indebtedness (irrespective of the aggregate amount thereof and
whether or
not the Indebtedness from time to time exceeds the amount of this
Guaranty, if limited), independent of, in addition and without
modification to, and does not impair or in any way affect, any
other
guaranty, indorsement, or other agreement in connection with the
Indebtedness, or in connection with any other indebtedness or liability
to
BANK, or collateral held by BANK therefor or with respect thereto,
whether
or not furnished by Guarantor. This Guaranty and Guarantor’s obligations
hereunder shall not be modified, terminated, impaired or in any
way
affected by the execution, delivery or performance by Guarantor,
Debtor or
any other person of any other guaranty, indorsement or other agreement
or
the delivery of collateral therefor. Until such time as the Indebtedness
has been irrevocably paid in full. Guarantor waives any claim,
remedy or
other right which Guarantor might now have or hereafter acquire
against
Debtor or any other person that is primarily or contingently liable
for
the Indebtedness including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, or any
right to
participate in any claim or remedy of BANK against Debtor or any
collateral therefor which BANK now has or hereafter acquires, whether
or
not such claim, remedy or right arises in equity, or under contract,
statute, or common law.
|
(b) |
This
Guaranty is absolute and unconditional and shall not be changed
or
affected by any representation, oral agreement, act or thing whatsoever,
except as herein provided. This Guaranty is intended by Guarantor
to be
the final, complete and exclusive expression of the agreement between
Guarantor and BANK. Guarantor expressly disclaims any reliance
on any
course of dealing or usage of trade or oral representation of BANK
including, without limitation, representations to make loans to
Debtor or
enter into any other agreement with Debtor or Guarantor. No modification
or amendment of any provision of this Guaranty and no waiver of
any right
by BANK shall be effective unless in writing and signed by a duly
authorized officer of BANK.
|
4. |
Certain
Rights and Obligations.
|
(a) |
Guarantor
authorizes BANK, without notice, demand or additional reservation
of
rights against Guarantor and without affecting Guarantor’s obligations
hereunder, from time to time: (i) to renew, refinance, modify,
subordinate, extend, increase, accelerate, or otherwise change
the time
for payment of, the terms of or the interest on the Indebtedness
or any
part thereof; (ii) to accept from any person or entity and hold
collateral for the payment of the Indebtedness or any part thereof,
and to
exchange, enforce or refrain from enforcing, or release such collateral
or
any part thereof; (iii) to accept and hold any indorsement or
guaranty of payment of the Indebtedness or any part thereof or
any
negotiable instrument or other writing intended by any party to
create an
accord and satisfaction with respect to the Indebtedness or any
part
thereof, and to discharge, terminate, release, substitute, replace
or
modify any such obligation of any such indorser or guarantor, or
any
person or entity who has given any security interest in any collateral
as
security for the payment of the Indebtedness or any part thereof,
or any
other person or entity in any way obligated to pay the Indebtedness
or any
part thereof, and to enforce or refrain from enforcing, or compromise
or
modify, the terms of any obligation of any such indorser, guarantor,
person or entity; (iv) to dispose of any and all collateral securing
the Indebtedness in any manner as BANK, in its sole discretion,
may deem
appropriate, and to direct the order or manner of such disposition
and the
enforcement of any and all indorsements and guaranties relating
to the
Indebtedness or any part thereof as BANK, in its sole discretion,
may
determine; and (v) to determine the manner, amount and time of
application of payments and credits, if any, to be made on all
or any part
of any component or components of the Indebtedness (whether principal,
interest, costs and expenses, or otherwise), including, without
limitation, if this Guaranty is limited in amount, to make any
such
application to Indebtedness, if any, in excess of the amount of
this
Guaranty.
|
(b) |
If
any default shall be made in the payment of any Indebtedness, Guarantor
hereby agrees to pay the same in full: (i) without deduction by
reason of any setoff, defense or counterclaim of Debtor; (ii) without
requiring protest, presentment or notice of non-payment or notice
of
default to Guarantor, to Debtor or to any other person; (iii) without
demand for payment or proof of such demand; (iv) without requiring
BANK to resort first to Debtor (this being a guaranty of payment
and not
of collection) or to any other guaranty or any collateral which
BANK may
hold; (v) without requiring notice of acceptance hereof or assent
hereto by BANK; and (vi) without requiring notice that any
Indebtedness has been incurred or of the reliance by BANK upon
this
Guaranty; all of which Guarantor hereby
waives.
|
(c) |
Guarantor’s
obligation hereunder shall not be affected by any of the following,
all of
which Guarantor hereby waives: (i) any failure to perfect or continue
the perfection of any security interest in or other lien on any
collateral
securing payment of any Indebtedness or Guarantor’s obligation hereunder;
(ii) the invalidity, unenforceability, propriety of manner of
enforcement of, or loss or change in priority of any such security
interest or other lien; (iii) any taking, holding, continuation,
collection, modification, leasing, impairment, surrender or abandonment
of, or any failure to protect, preserve or insure, any such collateral;
(iv) any delay in the exercise or waiver of, any failure to exercise,
or any forbearance in the exercise of, any right or remedy of BANK
or any
person (including, without limitation, those remedies described
in
Section 4(c)(iii) of this Guaranty) against Guarantor, Debtor or any
person or relating to the Indebtedness or any part thereof or the
collateral therefore; (v) failure of Guarantor to receive notice of
any intended disposition of such collateral; (vi) any defense arising
by reason of the cessation from any cause whatsoever of liability
of the
Debtor including, without limitation, any failure, delay, waiver,
forbearance, negligence or omission by BANK in enforcing its claims
against the Debtor or any collateral therefor including, without
limitation, any failure to make, prove, or vote any claim relating
to the
Indebtedness or any collateral therefor in any case or proceeding
pursuant
to the Federal Bankruptcy Code or any similar law, or any satisfaction of
the Indebtedness or any part thereof by reason of the failure of
BANK to
recover against any collateral therefor or the failure of BANK
to obtain a
judgment for any deficiency; (vii) any release, settlement,
composition, adjustment, compromise, replacement, cancellation,
discharge,
assignment, sale, exchange, conversion, participation or other
transfer or
disposition of any obligation of Debtor or of any collateral therfor;
(viii) the invalidity or unenforceability of any of the Indebtedness;
(ix) the creation of any security interest, lien or other encumbrance
in favor of any person other than BANK; (x) any refusal or failure of
BANK or any other person prior to the date hereof or hereafter
to grant
any additional loan or other credit accommodation to Debtor or
BANK’s or
any other party’s receipt of notice of such refusal or failure;
(xi) any refusal or failure of BANK or any other person to provide to
Guarantor any information relating to Debtor, any other guarantor,
indorser, or any person or entity who has given any collateral
as security
for the payment of the Indebtedness or any information relating
to
Debtor’s or such guarantor’s, indorser’s, person’s or entity financial
condition, business or assets, or if such information is provided,
to
provide such information completely and accurately; (xii) any change
in the ownership or membership of Guarantor or Debtor; (xiii) the
expiration of the period of any statute of limitations with respect
to any
lawsuit or other legal proceeding against Debtor or any person
in any way
related to the Indebtedness or a part thereof or any collateral
therefor;
or (xiv) any other thing or circumstance which might otherwise
constitute a defense to Guarantor’s obligation
hereunder.
|
5. |
Intentionally
Omitted.
|
6. |
Guaranty
of Performance.
Guarantor also guarantees the full, prompt and unconditional performance
of all obligations and agreements of every kind owed or hereafter
to be
owed by Debtor to BANK. Every provision for the benefit of BANK
contained
in this Guaranty shall apply to the guaranty of performance given
in this
paragraph.
|
7. |
Termination.
This Guaranty shall remain in full force and effect as to each
Guarantor
until the officer in charge of the Lending Office, Department or
Division
of BANK indicated above shall actually receive from such Guarantor
written
notice of its discontinuance, or notice of the death or judicial
declaration of incompetency of such Guarantor; provided, however,
this
Guaranty shall remain in full force and effect thereafter until
all
indebtedness outstanding, or contracted or committed for (whether
or not
outstanding), before the receipt of such notice by BANK, and any
extensions, renewals or replacements thereof (whether made before
or after
receipt of such notice), together with interest accruing thereon
after
such notice, shall be finally and irrevocably paid in full. Discontinuance
of this Guaranty as to one Guarantor shall not operate as a discontinuance
hereof as to any other Guarantor. Payment of all of the Indebtedness
from
time to time shall not operate as a discontinuance of this Guaranty,
unless notice of discontinuance as above provided has theretofore
actually
been received by BANK. Guarantor agrees that, to the extent that
Debtor
makes a payment or payments to BANK on the Indebtedness, or BANK
receives
any proceeds of collateral to be applied to the Indebtedness, which
payment or payments or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or otherwise
are
required to be repaid to Debtor, its estate, trustee, receiver
or any
other party, including, without limitation, under any bankruptcy
law,
state or federal law, common law or equitable cause, then to the
extent of
such repayment, the obligation or part thereof which has been paid,
reduced or satisfied by such amount shall be reinstated and continued
in
full force and effect as of the date such initial payment, reduction
or
satisfaction occurred, notwithstanding any contrary action which
may have
been taken by BANK in reliance upon such payment or payments. As
of the
date any payment or proceeds of collateral are returned, the statute
of
limitations shall start anew with respect to any action or proceeding
by
BANK against Guarantor under this Guaranty. Guarantor shall defend
and
indemnify BANK of and from any claim or loss under this paragraph
including actual attorneys’ and paralegals’ fees and expenses in the
defense of any such action or suit.
|
8. |
Other
Parties; Joint and Several
Liability.
|
(a) |
BANK
shall have the right to discharge or release one or more of the
undersigned from any obligation hereunder, in whole or in part,
without in
any way releasing, impairing or affecting its right against the
other or
others of the undersigned. The failure of any other person to sign
this
Guaranty shall not release or affect the obligations or liability
of the
undersigned.
|
(b) |
If
more than one party executes this Guaranty, the obligations of
the
undersigned hereunder shall be joint and several and the term “Guarantor”
shall include each as well as all of
them.
|
9. |
Covenants.
Until this Guaranty is terminated pursuant to Section 7 hereof,
Guarantor
will not, without the prior written consent of BANK, in each instance:
(for the purpose of this Section 9 and the following Section 10,
all
capitalized terms used and not defined shall have the meanings
given them
in the Letter of Credit Reimbursement Agreement dated as of April
1, 2007
between Debtor and BANK (“Reimbursement
Agreement”)):
|
(a) |
Borrowed
Money.
Create, incur, assume or suffer to exist any liability for borrowed
money
except (i) to BANK or HSBC Bank Canada, (ii) indebtedness owed
by a Subsidiary of Guarantor to Guarantor or to another Subsidiary
of
Guarantor or by Guarantor to any of its Subsidiaries,
(iii) indebtedness which when aggregated with indebtedness of Debtor,
Subsidiaries of Debtor and Subsidiaries of Guarantor, will not
be in
excess of $3,000,000 outstanding at any one time incurred for capital
leases of fixed assets or fixed asset purchases, (iv) liabilities
previously disclosed to BANK in the Credit Agreement between Guarantor
and
BANK dated as of January 5, 2007 (“Credit Agreement”) and (v) unsecured
indebtedness that is subordinated to the Indebtedness of Guarantor
to BANK
under any of the Collateral Documents in a manner reasonably satisfactory
to BANK.
|
(b) |
Encumbrances.
Create, incur, assume or suffer to exist any mortgage, lien, security
interest, pledge or other encumbrance on any of its property or
assets,
whether now owned or hereafter owned or acquired, except in favor
of BANK
or a trustee for the benefit of BANK and except for (a) any lease
of any
asset as a lessor in the ordinary course of its business and without
interference with the conduct of its business or operations, (b) any
pledge or deposit made by Guarantor, or any Subsidiary of Guarantor
in the
ordinary course of its business (i) in connection with any workers’
compensation, unemployment insurance, social security or similar
statute,
regulation or other law or (ii) to secure the payment of any
indebtedness, liability or obligation in connection with any letter
of
credit, bid, tender, trade or government contract, lease, surety,
appeal
or performance bond or statute, regulation or other law, or of
any similar
indebtedness, liability or obligation, not incurred in connection
with the
borrowing of any money or in connection with the deferral of the
payment
of the purchase price of any asset, (c) any attachment, levy or
similar lien with respect to Guarantor, or any Subsidiary of Guarantor
arising in connection with any action or other legal proceeding
so long as
(i) the validity of the claim or judgment secured thereby is being
contested in good faith by appropriate proceedings promptly instituted
and
diligently conducted, (ii) adequate reserves have been appropriately
established for such claim or judgment, (iii) the execution or other
enforcement of such attachment, levy or similar lien is effectively
stayed
and (iv) neither such claim or judgment nor such attachment, levy or
similar lien has a Material Adverse Effect, (d) any statutory lien in
favor of the United States for any amount paid to Guarantor, or
any
Subsidiary of Guarantor as a progress payment pursuant to any government
contract, (e) any statutory lien securing the payment of any tax,
assessment, fee, charge, fine or penalty imposed by any government
or
political subdivision upon Guarantor, or any Subsidiary of Guarantor
or
upon any of its respective assets but not yet due to be paid (excluding
any lien arising under ERISA), (f) any statutory lien securing
the payment
of any claim or demand of any materialman, mechanic, carrier,
warehouseman, garageman or landlord against Guarantor, or any Subsidiary
of Guarantor, but not yet due to be paid, (g) any reservation,
exception, encroachment, easement, right-of-way, covenant, condition,
restriction, lease or similar title exception or encumbrance affecting
title to any real property of Guarantor, or any Subsidiary but
not
interfering with the conduct of its business or operations, (h)
liens
previously disclosed to BANK in the Reimbursement Agreement or
in the
Credit Agreement and (i) liens securing indebtedness permitted by
Section 9(a)(iii) hereof.
|
(c) |
Guaranties.
Become a guarantor, surety or otherwise liable for the debts or
other
obligations of any other Person, whether by agreement to purchase
the
indebtedness of any other Person, or agreement for the furnishing
of funds
to any other Person through the purchase of goods, supplies or
services
(or by way of stock purchase, capital contribution, advance or
loan) for
the purpose of paying or discharging the indebtedness of any other
Person
or otherwise, except (i) as an endorser of instruments for the
payment of money deposited to its bank account for collection in
the
ordinary course of business, (ii) as related to this transaction,
(iii) guaranties of indebtedness to BANK, and (iv) guaranties
granted in the ordinary course of business by Guarantor in connection
with
ordinary course of business purchase or sale obligations of Subsidiaries
under contracts for the purchase or sale of
goods.
|
(d) |
Sale
of Assets.
Convey, sell, transfer, lease, lease and buyback, or sell and lease
back
during the term of this Guaranty more than five percent (5%) in
the
aggregate of other property, assets or business of Guarantor and
its
Subsidiaries on a Consolidated basis, to any other Person except
for the
sales of inventory in the ordinary course of business, and sales
of fixed
assets no longer needed or in use.
|
(e) |
Investments
and Loans.
Make or suffer to exist any investments in, or loans or advances
to, any
other person, firm or corporation, including, without limitation,
loans or
advances to members, shareholders, directors, officers or employees,
except (i) investments in the form of obligations of the United
States of America or any agency thereof, (ii) advance payments or
deposits for purchases in the ordinary course of business, (iii)
any
existing investments in, or existing or future advances to, any
Subsidiary
of Guarantor, and (iv) investments which are classified as Cash or
Cash Equivalents under GAAP.
|
(f) |
Merger.
Merge or consolidate with or into any other Person unless Guarantor
is the
entity surviving after the merger or consolidation, or enter into
any
joint venture or partnership with any other Person.
|
(g) |
Disposal
of Hazardous Substances.
Suffer, cause or permit the Disposal of Hazardous Substances at
any
property owned, leased or operated by Guarantor, Debtor, or any
Subsidiary
of Guarantor or Debtor, except in the ordinary course of Guarantor’s or
Debtor’s business, as applicable, and in accordance with applicable
Environmental Laws.
|
(h) |
Change
Fiscal Year.
Cause or permit a change of the fiscal year of
Guarantor.
|
(i) |
Financial
Covenants.
|
(i)
|
Minimum
Debt Service Coverage Ratio.
Permit as of the end of each fiscal quarter, on a Rolling Four-Quarter
Basis, Guarantor’s Debt Service Coverage Ratio to be less than 2.50 to
1.0.
|
(ii)
|
Maximum
Debt-to-Worth Ratio.
Permit as of the end of each fiscal year of Guarantor, the Consolidated
Debt-to-Worth Ratio of Guarantor and its Subsidiaries to exceed
2.75 to
1.0.
|
(iii)
|
Minimum
Interest Coverage Ratio.
Permit as of the end of each fiscal quarter on a Rolling Four-Quarter
Basis, the ratio of Guarantor’s EBITDA to Consolidated interest expense to
be less than 4.00 to 1.00.
|
(iv)
|
Minimum
Current Ratio.
Permit as of the end of each fiscal year of Guarantor, the ratio
of
Guarantor’s Consolidated Current Assets to Consolidated Current
Liabilities to be less than 1.25 to 1.0.
|
(v)
|
Maximum
Leverage Ratio.
Permit as of the end of each fiscal quarter, the ratio of Guarantor’s
Total Funded Debt as of the end of such fiscal quarter to EBITDA
to exceed
2.50 to 1.0 on a Rolling Four-Quarter
Basis.
|
(vi)
|
Capital
Expenditures.
Make or incur capital expenditures in Guarantor’s fiscal year 2007 in
excess of $10,000,000, and in fiscal years 2008 and thereafter
in excess
of $5,000,000 in any one year, in each case in the aggregate for
Guarantor
and its Subsidiaries for such
period.
|
10. |
Events
of Default. The
occurrence of any one or more of the following events shall constitute
an
event of default (individually, “Event of Default” or, collectively,
“Events of Default”).
|
(a) |
Covenants.
Default in the observance of any of the covenants contained in
Section 9 of this Guaranty, upon the occurrence thereof, or default
in the observance of any other covenants or agreements of Guarantor
contained in this Guaranty or in any other agreement with BANK,
which is
not remedied within thirty (30) days after notice thereof by BANK
to
Guarantor.
|
(b) |
Voluntary
Insolvency Proceedings.
If Guarantor or any Subsidiary of Guarantor (i) shall file a petition
or
request for liquidation, reorganization, arrangement, adjudication
as a
bankrupt, relief as a debtor or other relief under the bankruptcy,
insolvency or similar laws of the United States of America or any
state or
territory thereof or any foreign jurisdiction, now or hereafter
in effect;
(ii) shall make a general assignment for the benefit of creditors;
(iii) shall consent to the appointment of a receiver or trustee for
Guarantor or any Subsidiary of Guarantor or any of Guarantor’s or any of
its Subsidiaries’ assets, including, without limitation, the appointment
of or taking possession by a “custodian” as defined in the federal
Bankruptcy Code; (iv) shall make any, or send notice of any intended,
bulk
sale; or (v) shall execute a consent to any other type of insolvency
proceeding (under the federal Bankruptcy Code or otherwise) or
any formal
or informal proceeding for the dissolution or liquidation of, or
settlement of claims against or winding up of affairs of, Guarantor
or any
Subsidiary of Guarantor.
|
(c) |
Involuntary
Insolvency Proceedings.
The appointment of a receiver, trustee, custodian or officer performing
similar functions for Guarantor or any Subsidiary of Guarantor
or any of
Guarantor’s or any of its Subsidiaries’ assets, including, without
limitation, the appointment of or taking possession by a “custodian” as
defined in the federal Bankruptcy Code; or the filing against Guarantor
or
any Subsidiary of Guarantor of a request or petition for liquidation,
reorganization, arrangement, adjudication as a bankrupt or other
relief
under the bankruptcy, insolvency or similar laws of the United
States of
America or any state or territory thereof or any foreign jurisdiction,
now
or hereafter in effect; or the institution against Guarantor or
any
Subsidiary of Guarantor of any other type of insolvency proceeding
(under
the federal Bankruptcy Code or otherwise) or of any formal or informal
proceeding for the dissolution or liquidation of, settlement of
claims
against or winding up of affairs of Guarantor or any Subsidiary
of
Guarantor, and the failure to have such appointment vacated or
such
filing, petition or proceeding dismissed within ninety (90) days
after
such appointment, filing or
institution.
|
(d) |
Representations.
If any certificate, statement, representation, warranty or financial
statement furnished by or on behalf of Guarantor or any Subsidiary
of
Guarantor pursuant to or in connection with this Guaranty or as
an
inducement to BANK to enter into this Guaranty or any other lending
agreement with Guarantor shall prove to have been false in any
material
respect at the time as of which the facts therein set forth were
represented, or to have omitted any substantial contingent or unliquidated
liability or claim against Guarantor or any Subsidiary required
to be
stated therein, or if on the date of the execution of this Guaranty
there
shall have been any materially adverse change in any of the facts
disclosed by any such statement or certificate, which change shall
not
have been disclosed by Guarantor to BANK at or prior to the time
of such
execution.
|
(e) |
Other
Indebtedness and Agreements.
The occurrence of an event of default under any other agreement
between
Guarantor and BANK including, without limitation, the Credit Agreement,
any document executed in connection therewith, or default by the
Guarantor
in the performance of the Guarantor’s obligations under the Limited
Continuing Guaranty dated as of July 1, 1999 between Guarantor and
BANK (“Limited Guaranty”), or nonpayment by Guarantor or any Subsidiary of
Guarantor of any indebtedness owing by Guarantor or any Subsidiary
of
Guarantor in an amount equal to or exceeding $1,000,000 when due
(or, if
permitted by the terms of the applicable document, within any applicable
grace period), whether such indebtedness shall become due by scheduled
maturity, by required prepayment, by acceleration, by demand or
otherwise,
or failure to perform any term, covenant or agreement on its part
to be
performed under any agreement or instrument (other than this Guaranty
or
the Limited Guaranty) evidencing or securing or relating to any
indebtedness owing by Guarantor or any Subsidiary of Guarantor
in an
amount equal to or exceeding $1,000,000 when required to be performed
if
the effect of such failure is to accelerate or to permit the holder
to
accelerate the maturity of such
indebtedness.
|
(f) |
Judgments.
If any judgment or judgments (other than any judgment for which
it is
fully insured) against Guarantor or any Subsidiary of Guarantor
in an
aggregate amount in excess of $1,000,000 remains unpaid, unstayed
on
appeal, undischarged, unbonded or undismissed for a period of thirty
(30)
days after entry thereof.
|
11. |
Effects
of an Event of Default. Upon
the happening of one or more Events of Default BANK shall have
the right
to proceed first and directly against Guarantor under this Guaranty
without proceeding against Debtor or exhausting any other remedies
BANK
may have and without resorting to any security held by BANK as
security
for the Indebtedness.
|
12. |
Miscellaneous.
|
(a) |
“Debtor”
and “Guarantor” as used in this Guaranty shall include: (i) any
successor individual or individuals, association, partnership or
corporation to which all or a substantial part of the business
or assets
of Debtor or Guarantor shall have been transferred including, without
limitation, a debtor in possession under the Federal Bankruptcy
Code;
(ii) in the case of a partnership Debtor or Guarantor, any new
partnership which shall have been created by reason of the admission
of
any new partner or partners therein or by reason of the dissolution
of the
existing partnership by voluntary agreement or the death, resignation
or
other withdrawal of any partner; and (iii) in the case of a corporate
Debtor or Guarantor, any other corporation into or with which Guarantor
or
Debtor (if Debtor is a corporation) shall have been merged, consolidated,
reorganized, or absorbed.
|
(b) |
Without
limiting any other right of BANK, whenever BANK has the right to
declare
any Indebtedness to be immediately due and payable (whether or
not it has
so declared), BANK at its sole election may set off against any
of the
Indebtedness that is then due and owing any and all moneys then
owed to
Guarantor by BANK in any capacity, and BANK shall be deemed to
have
exercised such right of setoff immediately at the time of such
election
even though any charge therefor is made or entered on BANK’s records
subsequent thereto.
|
(c) |
Guarantor’s
obligation hereunder is to pay the Indebtedness in full when due
according
to its terms, and shall not be affected by any extension of time
for
payment by Debtor, any bar to the enforceability of the Indebtedness,
or
any limitation on the right to attorneys’ fees, resulting from any
proceeding under the Federal Bankruptcy Code or any similar law.
Guarantor’s obligation under this Guaranty shall also include payment of
interest accrued on the Indebtedness before or after a filing of
a
petition under the bankruptcy laws and interest on, and principal
of,
loans made to the debtor in possession after the filing of such
a petition
by or against Debtor.
|
(d) |
No
course of dealing or usage of trade, and no oral or written
representations or agreement, between Debtor or Guarantor and BANK,
whether or not relied on or acted upon, and no act, delay or omission
by
BANK in exercising any right or remedy hereunder or with respect
to any
Indebtedness shall operate as a waiver thereof or of any other
right or
remedy, and no single or partial exercise thereof shall preclude
any other
or further exercise thereof or the exercise of any other right
or remedy.
The giving of notice or a demand by BANK at any time shall not
operate as
a waiver in the future of BANK’s right to exercise any right or remedy
without notice or demand. BANK may remedy any default by Debtor
under any
agreement with Debtor or with respect to any Indebtedness in any
reasonable manner, without waiving the default remedied and without
waiving any other prior or subsequent default by Debtor. After
Debtor’s
failure to pay the Indebtedness in full, or any part thereof, BANK
may
exercise against Guarantor each right and remedy of a creditor
against a
principal debtor upon a past due liquidated obligation. All rights
and
remedies of BANK hereunder are
cumulative.
|
(e) |
BANK
and Guarantor as used herein shall include the heirs, executors
or
administrators, or successors or assigns, of those parties. The
rights and
benefits of BANK hereunder shall, if BANK so directs, inure to
any party
acquiring any interest in the Indebtedness or any part thereof.
If any
right of BANK hereunder is construed to be a power of attorney,
such power
of attorney shall not be affected by the subsequent disability
or
incompetence of Debtor or
Guarantor.
|
(f) |
BANK’s
rights and remedies under this Guaranty are assignable and any
participation may be granted by BANK herein in connection with
the
assignment or granting of a participation by BANK in the Indebtedness
or
any part thereof.
|
(g) |
Captions
of the sections of this Guaranty are solely for the convenience
of BANK
and Guarantor, and are not an aid in the interpretation of this
Guaranty.
|
(h) |
GUARANTOR
AGREES THAT ANY ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT
OF THIS
GUARANTY MAY BE COMMENCED IN THE SUPREME COURT OF NEW YORK IN ERIE
COUNTY,
OR IN THE DISTRICT COURT OF THE UNITED STATES IN THE WESTERN DISTRICT
OF
NEW YORK, IN WHICH BANK HAS AN OFFICE, AND GUARANTOR WAIVES PERSONAL
SERVICE OF PROCESS AND AGREES THAT A SUMMONS AND COMPLAINT COMMENCING
AN
ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE PROPERLY SERVED
AND SHALL
CONFER PERSONAL JURISDICTION IF SERVED BY REGISTERED MAIL TO GUARANTOR
AT
THE ADDRESS SPECIFIED ABOVE, OR AS OTHERWISE PROVIDED BY THE LAWS
OF THE
STATE OF NEW YORK OR THE UNITED
STATES.
|
(i) |
If
any provision of this Guaranty is unenforceable in whole or in
part for
any reason, it shall be deemed modified to the extent necessary
to make it
or the applicable provision enforceable, or if for any reason such
provision is not deemed modified, the remaining provisions shall
continue
to be effective.
|
(j) |
Any
payment or other act which results in the extension or renewal
of the
statute of limitations in connection with any action or proceeding
against
the Debtor relating to the Indebtedness, shall extend or renew
the statute
of limitations in connection with any action or other proceeding
against
Guarantor in connection with this Guaranty whether or not Guarantor
had
notice of, or consented to, such payment or
act.
|
(k) |
Any
demand for payment against Guarantor made by BANK under this Guaranty
shall be in writing and delivered in person or by first class registered
or certified mail postage prepaid at Guarantor’s address first written
above (or such other address of which Guarantor has notified BANK
in
writing), and shall be deemed received: (i) upon delivery, if
delivered in person, and (ii) three business days after deposited in
the mail or delivered to the post office, if mailed certified or
registered mail.
|
(l) |
This
Guaranty and the transactions evidenced hereby shall be construed
under
the laws of New York State without regard to principles of conflicts
of
law (other than General Obligations Law provisions 5-1401 and
5-1402).
|
(m) |
GUARANTOR
AND BANK HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE
ANY RIGHT
TO TRIAL BY JURY GUARANTOR AND BANK MAY HAVE IN ANY ACTION OR PROCEEDING,
IN LAW OR IN EQUITY, IN CONNECTION WITH THE GUARANTY OR THE TRANSACTIONS
RELATED HERETO. GUARANTOR REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE
OR AGENT OF BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
BANK WILL
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY TRIAL
WAIVER.
GUARANTOR ACKNOWLEDGES THAT BANK HAS BEEN INDUCED TO ENTER INTO
THIS
GUARANTY BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS
SECTION.
|
ASTRONICS CORPORATION | ||
|
|
|
By: | ||
David
C. Burney
Vice
President - Finance and Treasurer
|
STATE
OF NEW YORK
COUNTY OF ERIE
|
} | SS: |
Notary
Public
|