Unassociated Document


    
      

    

    Exhibit
10.3


    GUARANTY

     

    In order
to induce ComVest Capital, LLC (the “Lender”), to (a)
enter into that certain Amended and Restated Revolving Credit and Term Loan
Agreement of even date herewith (as same may be amended, modified, supplemented
and/or restated from time to time, the “Loan Agreement”) with
LaPolla Industries, Inc. (the “Obligor”), (b) accept
from the Obligor that certain Amended and Restated Term Note of even date
herewith in the principal amount of $3,000,000 (as same may be amended,
modified, supplemented and/or restated from time to time, the “Note”), being issued
pursuant to the Loan Agreement, and (c) extend to the Obligor the Term Loan
contemplated by the Loan Agreement, the undersigned, RICHARD KURTZ, an individual
(the “Guarantor”), hereby
guarantees to the Lender, and/or any other holder(s) of any Guaranteed
Obligations (as such term is hereinafter defined) from time to time, the full
and timely payment and performance by the Obligor of all principal, interest,
collection costs and other obligations from time to time outstanding under, in
respect of or pursuant to the Term Loan made under the Loan Agreement and
further evidenced by the Note (collectively, the “Guaranteed
Obligations”).  This is an absolute, irrevocable and
unconditional guaranty of payment and not merely of collection, and the Lender
may (notwithstanding the Guarantor’s joint and several liability with the
Obligor and any and all other guarantor(s) of any of the Guaranteed Obligations)
enforce this Guaranty without the need to resort to any proceedings or obtain
any judgment as against the Obligor or any guarantor, or to make any resort to
or against any collateral pledged by the Obligor or any guarantor to secure the
payment and performance of any of the Guaranteed Obligations; and in the event
that there shall at any time occur and be continuing any Event of Default under
and as defined in the Loan Agreement, or if the Guaranteed Obligations shall
otherwise become accelerated in accordance with the provisions of the Loan
Agreement, then the Guarantor shall forthwith pay to the Lender, on demand, all
Guaranteed Obligations.

     

    This
Guaranty shall remain in full force and effect until such time as the Obligor or
the Guarantor has delivered to the Lender financial statements and calculations
which accurately reflect and demonstrate that the Obligor has maintained a ratio
of EBITDA to Debt Service (as such terms are defined in the Loan Agreement) of
1.25 to 1.0 for any period of three (3) consecutive fiscal quarters commencing
after the date hereof (the “Release
Condition”).  In the event that any such financial statements
and calculations shall be inaccurate to such an extent as to cause such ratio
not to be met in any of the three (3) subject fiscal quarters, then this
Guaranty shall be deemed to have remained in effect at all times without regard
to any claimed satisfaction of such Release Condition.

     

    1.           Until
that date which is one (1) year after the indefeasible payment in full of the
Guaranteed Obligations, the Guarantor makes the following waiver:  THE
GUARANTOR SHALL NOT TAKE BY ASSIGNMENT, SUBROGATION OR OTHERWISE ANY CLAIM OR
COLLATERAL THAT THE LENDER MIGHT HAVE OR OBTAIN AGAINST OR FROM THE OBLIGOR, AND
THE GUARANTOR IRREVOCABLY WAIVES AND RELEASES, IN ADDITION TO THOSE CLAIMS, ANY
CLAIM FOR UNJUST ENRICHMENT, INDEMNIFICATION, CONTRIBUTION OR REIMBURSEMENT, AND
ANY AND ALL OTHER SUBROGATION CLAIMS AGAINST THE OBLIGOR ON ACCOUNT OF ANY
PAYMENTS HEREUNDER, WHETHER BY STATUTE, BY CONTRACT, BY LAW OR IN EQUITY,
WHETHER ACTUAL OR CONTINGENT, AND WHETHER NOW OR HEREAFTER ARISING.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    2.           In
order to induce the Lender to accept this Guaranty, the Guarantor hereby
represents and warrants that (a) this Guaranty constitutes the legal, valid
and binding obligation of the Guarantor enforceable against the Guarantor in
accordance with its terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors’ rights generally, and by general principles of equity,
and (b) the Guarantor’s execution, delivery and performance of this
Guaranty does not conflict with or constitute a breach of any agreement or
obligation to which the Guarantor is a party or by which any of his property or
assets is bound, or require the consent of any other person.

     

    3.           The
Guarantor hereby acknowledges and confirms that, as a principal shareholder of
the Obligor, the Guarantor will derive immediate and substantial benefit from
the loans and advances to be made from time to time to the Obligor under the
Loan Agreement.  The Guarantor hereby further acknowledges and agrees
that the validity of this Guaranty and the Guarantor’s obligations hereunder
shall in no way be terminated, modified, affected, impaired or diminished by
reason of any of (i) the granting by the Lender of any consent, indulgence,
extension, renewal, waiver, compromise or release to the Obligor or any other
guarantor(s) of any of the Guaranteed Obligations, (ii) any failure by the
Lender to insist in any one or more instances upon strict performance or
observance by the Obligor and/or any such other guarantor(s) of any of the
terms, provisions or conditions of the Loan Agreement, the Note and/or any
security agreements, collateral agreements or other agreements or instruments
establishing or evidencing any collateral security for the Guaranteed
Obligations, the Loan Agreement, the Note, this Guaranty or any other guaranty
of any of the Guaranteed Obligations (collectively, the “Loan Documents”),
(iii) any assertion or non-assertion by the Lender against the Obligor
and/or any such other guarantor(s) of any of the rights or remedies reserved to
the Lender in the Loan Documents (including, without limitation, any application
of payments received from or in respect of the Obligor), (iv) any
forbearance by the Lender from exercising any of its rights or remedies as
aforesaid, (v) any bankruptcy, insolvency, receivership, reorganization,
liquidation or other similar proceeding relating to the Obligor and/or any such
other  guarantor(s), (vi) any relief of the Obligor and/or any
such other guarantor(s) from any of its obligations under the Loan Documents, by
operation of law, in equity or otherwise, (vii) any offset or defense
(other than the defense of full payment) in favor of the Obligor, the Guarantor
and/or any such other guarantor(s) against the Lender, (viii) any
amendment, modification, extension, renewal, termination, compromise or waiver
under or in respect of the Loan Documents, (ix) any sale, release or other
disposition of any collateral security for the Guaranteed Obligations,
(x) any failure to take  any action in respect of any such
collateral, (xi) any transfer, assignment or negotiation of any of the Loan
Documents and/or any collateral security as aforesaid (including, without
limitation, this Guaranty), or (xii) any application of payments, in accordance
with the Loan Agreement, to any other Obligations prior to application to the
Guaranteed Obligations.  The Guarantor hereby waives any and all
notice, demand, presentment, protest and other such privilege or formality, and
all notice in respect of the creation, renewal, extension or accrual of any
Guaranteed Obligations.

     

    4.           The
Guarantor hereby covenants and agrees that, for so long as any Guaranteed
Obligations remain outstanding and/or the Obligor has any right to make further
borrowings under the Loan Agreement, the Guarantor shall, within 30 days after
the filing thereof, provide to the Lender true and complete copies of all
federal and state tax returns and other tax filings made by or on behalf of the
Guarantor and/or his spouse.

     

    
      
         


      

      
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    5.           This
Guaranty may be executed in any number of counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.

     

    6.           This
Guaranty shall be binding upon the undersigned Guarantor and his heirs,
executors, administrators, personal representatives, successors and assigns,
shall inure to the benefit of the Lender and its successors and assigns, and
shall terminate only upon the indefeasible payment and performance in full of
all of the Guaranteed Obligations.  No assignment of, or succession
to, the obligations of the Guarantor hereunder shall in any way terminate,
modify, affect, impair or diminish the obligations of the Guarantor hereunder,
absent an express written agreement to such effect duly executed by the
Lender.

     

    7.           No
delay on the part of the Lender in exercising any rights hereunder, or any
failure by the Lender to exercise any such rights, shall operate as a waiver of
any such rights for any purposes, it being understood that the Lender may
exercise any and all of its rights hereunder at any time and from time to time
pursuant to the terms hereof.

     

    8.           This
Guaranty may not be terminated, modified or amended except by a writing duly
executed by the Lender and the Guarantor.

     

    9.           This
Guaranty shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to principles of conflicts of laws
(other than Sections 5-1401 and 5-1402 of the New York General Obligations
Law).  The Guarantor hereby consents to the jurisdiction of all courts
(state and/or federal) sitting in the State of New York in connection with any
action or proceeding under or in respect of this Guaranty, and waives trial by
jury in any such action or proceeding.

     

    10.           In
the event that the holder hereof shall, after default by the Guarantor of any of
his obligations hereunder, place this Guaranty in the hands of any attorney for
enforcement and/or collection, through legal proceedings or otherwise, the
Guarantor shall pay to the holder hereof all costs and expenses of enforcement
and collection (including reasonable attorneys’ fees).

     

    11.           All
capitalized terms used herein without definition have the respective meanings
ascribed to them in the Loan Agreement.

     

    IN WITNESS WHEREOF, the
undersigned Guarantor, intending to be legally bound hereby, has executed this
Guaranty as of this 30th day of June, 2008.

     

    


    
    

     

    
      	 	/s/  Richard
      J. Kurtz
	 	Richard
      Kurtz


    

     

    


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