GUARANTY
LIMITED IN AMOUNT
THIS GUARANTY is given by the undersigned (hereinafter referred to as the
"Guarantors") to induce Xxxxxxx Xxxxxx & Company Leasing, Inc., (hereinafter
referred to as "Lender") to extend credit to, or otherwise become the creditor
or Xxxxxx Xxxx Xxxxx Inc. (hereinafter referred to as "Borrower"). Guarantors
understand that the Lender is willing to become the creditor of Borrower only if
Guarantors guaranty the faithful performance of all the terms and conditions
upon which such credit is extended to Borrower, and Guarantors are desirous of
having Lender extend such credit to Borrower upon such terms and conditions as
are agreed upon by Xxxxxx and Xxxxxxxx.
The liability of Guarantors pursuant to this Guaranty (exclusive of any costs
and expenses incurred by Lender to realize upon this Guaranty" shall not, at any
time, exceed the sum of Nine Hundred Fifty Thousand Dollars no/100
($950,000.00).
In consideration of the foregoing, its agreed:
1. Guarantors, jointly and severally, absolutely and unconditionally, guaranty
to Lender, its successors and assigns, the prompt payment to Lender, its
successors and assigns, of all loans, drafts, overdrafts, checks, notes and any
and all other debts, obligations and liabilities of every kind of Borrower to
Lender, including extensions, renewals or refundings thereof (including
extensions, renewals or refundings made after receipt by Lender of written
notice of termination hereof), whether as maker, co-maker, drawer, guarantor,
endorser, or otherwise, whether direct or indirect, liquidated or unliquidated,
absolute or contingent, joint or several, now existing or hereafter arising, due
or to become due, whether originally contracted with Lender, and whether such
indebtedness is from time to time reduced and thereafter increased or entirely
extinguished and thereafter reincurred, including interest and charges and to
the extent not prohibited by law, all costs, expenses, fees and attorneys' fees
at any time paid or incurred by Xxxxxx, or its successors or assigns, in efforts
to collect all or part of the foregoing liabilities and obligations or to
realize upon any collateral securing the foregoing liabilities and obligations
(the foregoing are hereinafter collectively referred to as the "Liabilities").
All of the Liabilities shall conclusively be presumed to have been created or
accepted by Lender in reliance on this Guaranty.
In addition to the foregoing obligations of Guarantors, to the extent not
prohibited by law, Guarantors shall be obligated to Lender for any and all costs
and expenses incurred by Lender to realize upon this Guaranty, including, but
not limited to, reasonable attorneys' fees, legal expenses and court costs.
2. This Guaranty is a continuing guaranty and shall remain in effect until
notice of termination in writing is given to Lender. Termination shall be
effective only upon receipt of such notice by Xxxxxx. Such termination will be
effective only with respect to those Liabilities incurred or contracted by
Borrower or acquired by Lender after the date on which such written notice is
received by Xxxxxx. Notwithstanding the giving of such termination notice and
notwithstanding any other provision contained in this Guaranty, this Guaranty
shall remain in full force
and effect as to all of the following: (i) all of those Liabilities existing on
the date of receipt by Lender of the notice of termination, (ii) all renewals
and extensions thereof, (iii) all Liabilities arising out of any loan
commitments existing prior to the receipt by Lender of the notice of
termination, and (iv) all costs, expenses, fees and attorneys' fees at any time
paid or incurred by Lender, or its successors or assigns, in efforts to collect
the Liabilities, or to realize upon this Guaranty or any collateral securing the
Liabilities whether or not such costs, expenses or fees are incurred by Lender
before or after the delivery of the notice of termination until full payment of
the Liabilities and other obligations to Lender. Termination of this Guaranty by
notice or by operation of law shall affect the Liabilities in such order as
Lender may elect and without any obligation to account to any of the Guarantors
for the manner or order of application. Any termination of this Guaranty by a
Guarantor shall only be effective as to the Guarantor who has given written
notice and shall not be effective as to any of the other Guarantors.
3. This Guaranty shall be construed as an absolute and continuing guaranty of
payment and, to the extent permitted by law, shall be valid and enforceable
against Guarantors without regard to the regularity, validity or enforceability
of any of the Liabilities. This Guaranty shall be both in supplement of and in
addition to any other guaranty or guaranties, indemnity or indemnities which
shall be furnished to Lender by Guarantors or by any other person or persons to
secure the Liabilities. The failure of any person or entity to sign this
Guaranty shall not release or affect the liability of any signator hereto.
4. Guarantors, jointly and severally, agree, without affecting Guarantors'
liability to Lender hereunder, that Lender may, without notice to or consent of
Guarantors, upon such terms as Lender may deem advisable: (a) from time to time,
extend credit to or otherwise become the creditor of Borrower, (b) renew,
extend, modify, or amend the terms of any of the Liabilities or any agreement
pursuant to which any of the Liabilities were created or security therefor is
held, including, but not limited to, extending the time of payment of any of the
Liabilities, (c) release, surrender, exchange, modify, substitute, impair,
realize upon or deal with any collateral securing any of the Liabilities, (d)
settle or compromise any claim of Lender against Borrower, or against any other
person, firm, or corporation, whose obligation is held by Lender as collateral
security for any of the Liabilities, (e) exercise or refrain from exercising any
rights against Borrower, Guarantors, other guarantors, or any collateral
securing the Liabilities, (f) settle, release or otherwise enter into agreements
regarding the Liabilities with any party primarily or secondarily liable on the
Liabilities, and (g) apply any collateral for the Liabilities in such order as
it may elect and without any obligation to account to Guarantors for the manner
or order of application. Guarantors hereby waive all defenses, counterclaims,
and offsets which Guarantors, jointly and severally, might have by reason of
Lender taking any of the foregoing actions and all such actions shall be binding
upon Guarantors, jointly and severally.
5. Guarantors, jointly and severally, waive: (a) notice of Borrowers incurring
any of the Liabilities, (b) notice of acceptance of this Guaranty by Xxxxxx, (c)
notice of presentment, demand for payment, protest or dishonor of any of the
Liabilities, or
the obligation of any person, firm, or corporation, held by Xxxxxx as collateral
security for the Borrower's obligation, (d) notice of the failure of any person,
firm, or corporation to pay to Lender any indebtedness held by Xxxxxx as
collateral security for any of the Liabilities, (e) all defenses, offsets and
counterclaims which Guarantors may at any time have to any claim of Lender
against Borrower, and (f) notice of any default on the part of Borrower and any
demand for the payment of the Liabilities; provided, however, if this Guaranty
is for a "Consumer Credit Transaction", as defined in the Iowa Consumer Credit
Code, Lender shall give such notices, if any, as may be required by law.
6. Guarantors, jointly and severally, represent and warrant that, at the time
of the execution and delivery of this Guaranty, there are no conditions to the
effectiveness of this Guaranty and nothing exists to impair the effectiveness of
the liability of Guarantors to Lender hereunder, or to prevent this Guaranty
from taking immediate effect with respect to the guaranty by Guarantors of the
Borrower's obligations to Lender under the Liabilities.
7. Actions to enforce this Guaranty may be brought successively against one or
more of Guarantors, jointly or severally, and against less than all of
Guarantors without impairing or affecting the rights of Lender against the
others. Guarantors may, however, agree among themselves that not release or
settlement shall impair their rights as among themselves. Any claim, including a
claim for contribution, which any of the Guarantors may have against a
co-guarantor indebted or under liability to Lender, either direct or indirect,
or against Borrower, shall not be enforced or payment made until the
indebtedness or liability of the co-guarantor or Borrower to Lender is paid in
full. The collateral given to secure this Guaranty by a co-guarantor indebted or
under liability to Lender shall be applied in payment of the indebtedness or
liability of the co-guarantor to Lender before any part is applied on a claim of
Borrower or a co-guarantor, including, but not limited to, a claim for
contribution of one or more of the Guarantors against a co-guarantor. Lender
may, at its option, proceed in the first instance against Guarantors, jointly
and severally, to collect any obligation covered by this Guaranty, without first
proceeding against Borrower, or any other person, firm, or corporation, and
without first resorting to any property at any time held by Xxxxxx as collateral
or security for the payment of the Liabilities or for the payment of Guarantors'
obligations under this Guaranty.
8. The obligations of Guarantors hereunder shall not in any manner be affected
by any of the following: (i) the failure on the part of the Lender to realize
upon, perfect any interest in, or protect any of the Liabilities or security
therefore or take any action with respect thereto, (ii) any impairment,
modification, change, release or limitation of any of the Liabilities resulting
from the operation of any present or future provision of the Bankruptcy Code or
similar statute, or from the decision of any court, (iii) any act or omission by
Xxxxxx arising out of Xxxxxx's administration of the Liabilities or which in any
way alters the extent of the Guarantors' risk, or (iv) any change, exchange or
alteration of any collateral or other security held by Lender for payment of the
Liabilities or the surrender or release of any such collateral or security.
9. This Guaranty shall not be discharged or in any way affected by the death
of Guarantors.
10. This Guaranty is secured by all of the following: (a) all collateral
previously, now or hereafter pledged to Lender by any of the Guarantors, (b) all
security interests previously, now or hereafter granted to Lender by any of the
Guarantors and (c) all real estate mortgages previously, now or hereafter
granted to Lender by any of Guarantors (whether such pledge, security interest
or real estate mortgage specifically relates to the Liabilities or not);
provided, however, this Guaranty shall not be secured by any such pledge,
security interest or real estate mortgage given in a "Consumer Credit
Transaction", as defined in the Iowa Consumer Credit Code, unless specifically
provided for therein. Guarantors hereby grant to Lender a security interest in
all accounts, deposits and property of Guarantors in the possession of Lender,
and Lender shall have the right to set off, at any time without notice to
Guarantors, any and all deposits and other sums due from Lender to Guarantor(s).
11. Guarantors, jointly and severally, agree that in the event any payment
made by or on behalf of Borrower respecting any of the Liabilities, or any
person of any such payment, shall at any time be repaid by the recipient in
compliance with an order (whether or not final) by a court of competent
jurisdiction pursuant to any provision of the Bankruptcy Code , as now existing
or hereafter amended, or any provision of applicable state law, the Liabilities
shall not be deemed to have been paid to the extent of the repayment so made and
the obligations of each Guarantor shall continue in full force and effect, and
Xxxxxx and Xxxxxx's successors and assigns will continue to be entitled to the
full benefits of this Guaranty.
12. All payments received by Xxxxxx from Guarantors shall be deemed to have
been made by all Guarantors together with any other guarantors who may be
obligated to Lender on account of the Liabilities, unless Lender is otherwise
advised in writing by all Guarantors and all such other parties. Upon payment,
in full, by Guarantors of the Liabilities. Lender will assign and transfer all
of Lender's rights, if any, in and to the Liabilities (without recourse or any
express or implied warranties) to Guarantors and any other guarantors who may be
obligated to Lender on account of the Liabilities, any such transfer to be in
common (regardless of the source or sources of payment of the Liabilities)
unless Lender is otherwise instructed in writing by all of Guarantors and all
such other parties. Guarantors waive all rights of subrogation to any collateral
and remedies of Lender against Borrower, and other persons or entities, until
all of the Liabilities have been paid in full and discharged.
13. Guarantors hereby release Lender from any duty it may have to disclose to
Guarantors, or any one of them, facts which Lender might now have or in the
future have concerning the financial condition of Borrower, even though such
facts might materially increase the risk of Guarantors.
14. In the event any portion of this Guaranty shall, for any reason, be held
to be invalid, illegal or
unenforceable in whole or in part, the remaining provisions shall not be
affected thereby and shall continue to be valid and enforceable and if, for any
reason, a court finds that any provision of this Guaranty is invalid, illegal or
unenforceable as written, but that by limiting such provision it would become
valid, legal and enforceable then such provision shall be deemed to be written,
construed and enforced as so limited.
15. This Guaranty constitutes the entire agreement of Guarantors with respect
to the subject matter of this Guaranty, and supersedes all negotiations,
preliminary agreements and all prior and contemporaneous discussions between
Guarantors and Xxxxxx in connection with the subject matter of this Guaranty. No
course of dealing, course of performance or trade usage, and no parol evidence
of any nature shall be used to supplement or modify any terms of this Guaranty.
16. This Guaranty is delivered and made in, and shall be construed pursuant to
the laws of, the State of Iowa, and is binding, jointly and severally, upon
Guarantors and their heirs, legal representatives, successors and assigns, and
shall inure to the benefit of Lender, its successors and assigns. This Guaranty
may be enforced by any party to whom all or any part of the Liabilities may be
sold, transferred or assigned. If less than all of the Liabilities are sold,
transferred or assigned, Lender shall have the right to enforce this Guaranty as
to the remainder of the Liabilities. Words and phrases herein shall be construed
as in the singular or plural number, and as masculine, feminine or neuter gender
according to the context.
17. Guarantors hereby acknowledge that they have (i) each received a copy of
this Guaranty, (ii) read and understand this Guaranty, and (iii) been advised by
Xxxxxx to consult with legal counsel before signing this Guaranty.
In Witness Whereof Guarantors have signed this Guaranty on this ___________
day of________________________,19_____.
IN WITNESS WHEREOF Guarantors have signed this Guaranty this __________
day of May, 1997.
____________________________
XXXXXX X. XXXXXXX, Guarantor
_____________________________
XXXXXXX X. XXXXXXX, Guarantor
___________________________
XXXXXX X. XXXXXX, Guarantor
STATE OF NORTH CAROLINA )
) ss:
COUNTY OF MECKLENBURG )
On this 29th day of May, 1997, before me, the undersigned, a Notary
Public in and for the State of North Carolina, personally appeared Xxxxxx X.
Xxxxxxx, to me known to be the identical person named in and who executed the
foregoing instrument, and acknowledged that he executed the same as his
voluntary act and deed.
___________________________________________
Notary Public in and for the State of North
Carolina
My Commission Expires:
7-4-99
STATE OF NORTH CAROLINA )
) ss:
COUNTY OF MECKLENBURG )
On this ________ day of May, 1997, before me, the undersigned, a Notary
Public in and for the State of North Carolina, personally appeared Xxxxxxx X.
Xxxxxxx, to me known to be the identical person named in and who executed the
foregoing instrument, and acknowledged that he executed the same as his
voluntary act and deed.
___________________________________________
Notary Public in and for the State of North
Carolina
My Commission Expires:
__________________
* * * * * * *
STATE OF NORTH CAROLINA )
) ss:
COUNTY OF MECKLENBURG )
On this 29th day of May, 1997, before me, the undersigned, a Notary
Public in and for the State of North Carolina, personally appeared Xxxxxx X.
Xxxxxx, to me known to be the identical person named in and who executed the
foregoing instrument, and acknowledged that he executed the same as his
voluntary act and deed.
___________________________________________
Notary Public in and for the State of North
Carolina
My Commission Expires:
7-14-99