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EXHIBIT 10 (s)
UNCONDITIONAL GUARANTY OF PERFORMANCE
WHEREAS, BASIC AMERICAN MEDICAL PRODUCTS, INC., a Georgia corporation
(hereinafter called "Basic American"), has acquired from SUPER SAGLESS, INC, a
Delaware corporation (hereinafter called "Super Sagless"), certain assets from
Super Sagless and in connection therewith Basic American and Super Sagless
executed an Agreement for Purchase and Sale of Certain Assets, a Sublease
Agreement and a Master Purchase and Supply Agreement and Basic American
executed in favor of Super Sagless a promissory note in the principal amount of
$687,979.13 and a Security Agreement relating to such promissory note (herein
collectively referred to as the "Agreements"); and
WHEREAS, in connection with the above-referenced transactions, the
undersigned has agreed to execute a guaranty in the form hereof; and
WHEREAS, upon delivery to Super Sagless of this guaranty, Super Sagless
has agreed to forthwith release Xxxx X. Xxxxxxx from his personal guaranty to
Super Sagless;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the undersigned, XXXXX ENTERPRISES, INC., a Delaware corporation
(hereinafter called the "Guarantor"), agrees as follows:
1. During the three-year period after the date hereof and only to the
extent of $1,400,000 in the aggregate, Guarantor hereby unconditionally
guarantees to Super Sagless that all covenants and agreements of Basic
American contained in the Agreements will be duly and promptly observed and
performed. The three-year limitation period of this unconditional guaranty
shall be extended with respect to any specific matter for which Guarantor shall
have received a written claim and demand for payment hereunder prior to the
expiration of such three-year period, but only with respect to such specific
matter and only until such claim shall be resolved.
2. The obligations of the Guarantor shall be performable upon demand of
Super Sagless and shall be unconditional irrespective of the genuineness,
validity, regularity or enforceability of the Agreements, or any other
circumstance which might otherwise constitute a legal or equitable discharge
of a surety or a guarantor; and the Guarantor hereby waives notice of
acceptance of this Unconditional Guaranty of Performance (hereinafter the
"Unconditional Guaranty") and of the incurring by Basic American of any of the
obligations hereinbefore mentioned, all demand whatsoever, and all rights to
require Super Sagless, whether by notice under O.C.G.A Section 10-7-24 (Ga.
Code Xxx. Section 103-205) or otherwise, to (a) proceed against Basic
American, or (b) pursue any other remedy it may now or hereafter have against
Basic American.
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3. The Guarantor hereby agrees that, at any time or from time to time,
without notice to the Guarantor:
(A) The time for Basic American's performance of or
compliance with any covenant or agreement contained in the
Agreements may be extended or such performance or compliance
may be waived; and
B) The Agreements may be modified or amended by Basic
American and Super Sagless in any respects,
all without affecting the liability of the Guarantor.
4. The Guarantor hereby acknowledges that the withdrawal from, or
termination of, any ownership interest in Basic American by Guarantor shall not
alter, affect or in any way limit the obligations of Guarantor hereunder.
5. The Guarantor expressly represents and acknowledges that the
benefits to Basic American under the Agreements are and will be of direct
economic interest, benefit and advantage to Guarantor.
6. If this Unconditional Guaranty shall be placed in the hands of an
attorney for collection or should it be collected by legal proceedings or
through any probate or bankruptcy court, the Guarantor agrees to pay to Super
Sagless reasonable attorneys' and collection fees.
7. Until each and every one of the covenants and agreements of this
Unconditional Guaranty are fully performed either by Basic American or by the
Guarantor, the Guarantor's obligations hereunder shall not be released, in
whole or in part, by any action or other matter which might, but for this
provision of this instrument, be deemed a legal or equitable discharge of a
surety or guarantor, or by reason of any waiver, extension, modification,
forbearance or delay, or other act or omission of Super Sagless or its failure
to proceed promptly or otherwise, or by reason of any action taken or omitted
by Super Sagless whether or not such action or failure to act varies or
increases the risk of, or affects the rights or remedies of, the Guarantor or by
reason of any further dealings between Basic American and Super Sagless or any
other guarantor, and the Guarantor hereby expressly waives and surrenders any
defense to the liability of the Guarantor based upon any of the foregoing acts,
omissions, things, agreements or waivers or any of them; it being the purpose
and intent of the parties hereto that the covenants, agreements and all
obligations under this Unconditional Guaranty are absolute, unconditional and
irrevocable under any and all circumstances.
8. Super Sagless is relying and is entitled to rely upon each and all
of the provisions of this Unconditional Guaranty; and accordingly, if any
provision or provisions of this instrument should be held to be invalid or
ineffective, then all other provisions shall continue in full force and effect.
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9. The Guarantor hereby agrees that in the event of the liquidation,
bankruptcy or dissolution of Basic American this Unconditional Guaranty shall
continue in full force and effect
10. The obligations of the Guarantor hereunder are independent of the
obligations of Basic American, and a separate action or actions for payment,
damages or performance may be brought and prosecuted against the Guarantor
whether or not any action is brought against Basic American, and whether or
not notice be given or demand be made upon Basic American.
11. This Unconditional Guaranty and all rights, obligations and
liabilities arising hereunder shall be construed according to the laws of the
State of Georgia. The Guarantor agrees that this Unconditional Guaranty is
performable in Georgia and consents to the jurisdiction of the courts of such
state.
12. This Unconditional Guaranty and all rights, obligations and
liabilities arising hereunder shall inure to the benefit of and be binding upon
all of the successors and assigns of Guarantor and Super Sagless.
IN WITNESS WHEREOF, this Unconditional Guaranty have been duly executed
and sealed by the undersigned as of the 15th day of November, 1995.
Signed, sealed and deliv- XXXXX ENTEPRlSES, INC.
ered in the presence of:
/s/ Xxxx X. Xxxxx, Xx. By: /s/ X. X. Xxxxxx
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Unofficial Witness Its: President
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Xxxxxx X. Xxxxxxxx
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Notary Public
My Commission Expires:
7-21-1998
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