EXHIBIT 10.9
CONTINUING GUARANTY (UNLIMITED)
(FOR CONSUMER OR BUSINESS TRANSACTIONS)
DATED JULY 17, 1996
GUARANTY, for value received, and to induce Heritage Bank, N.A. 0000
Xxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxx (Lender"), to extend credit or to grant or
continue other credit accommodations to Xxxxxxx X. Xxxxxxxxx ("Debtor"), the
undersigned jointly and severally guarantee payment of the Obligations defined
below when due or, to the extent not prohibited by law, at the time any Debtor
becomes a subject of bankruptcy or other insolvency proceedings. "Obligations"
means all loans, drafts, overdrafts, checks, notes, and all other debts,
obligations and liabilities of every kind and description, and either of the
same or of a different nature, rising out of credit previously granted, credit
contemporaneously granted or credit granted in the future by Lender for any
Debtor, to any Debtor and another, or to another guaranteed or endorsed by any
Debtor. Obligations include interest and charges and the amount of payments
made to Lender or another by or on behalf of any Debtor which are recovered from
Lender by a trustee, receiver, creditor or other party pursuant to applicable
federal or state law, and to the extent not prohibited by law, all costs,
expenses and attorneys' fees at any time paid or incurred before and after
judgment in endeavoring to collect all or part of any of the above, or to
realize upon this Guaranty, or any collateral securing any of the above,
including these incurred incident to any action or proceeding involving Debtor
or the undersigned brought pursuant to the United States Bankruptcy Code.
Unless a lien would be prohibited by law or would render a nontaxable account
taxable, the undersigned grants to Lender a security interest and lien in any
deposit account any of the undersigned may at any time have with Lender. Lender
may, at any time after the occurrence of an event of default and notice and
opportunity to cure, if required by (S) 425.106, Wis Stats. set-off any amount
unpaid on the Obligations against any deposit balances any of the undersigned
may at any time have with Lender, or other money now or hereafter owed any of
the undersigned by Lender. This Guaranty is also secured (to the extent not
prohibited by law) by all existing and future security agreements between Lender
and any of the undersigned and by any mortgage stating it secures guaranties of
any of the undersigned. This Guaranty is valid and enforceable against the
undersigned even though any Obligation is invalid or unenforceable against any
Debtor.
WAIVER. To the extent not prohibited by law, the undersigned expressly
waive notice of the acceptance of this Guaranty, the creation of any present or
future Obligation, default under any Obligation, proceedings to collect from any
Debtor or anyone else, all diligence of collection and presentment, demand,
notice and protest, and any right to
disclosures from Lender regarding the financial condition of any Debtor or
guarantor of the Obligations or the enforceability of the Obligations. No claim,
including a claim for reimbursement, subrogation, contribution or
indemnification which any of the undersigned may, as a guarantor of the
Obligations, have against a co-guarantor of any of the Obligations or against
any Debtor shall be enforced nor any payment accepted until the Obligations are
paid in full and no payments to or collections by Lender are subject to any
rights of recovery.
CONSENT. With respect to any of the Obligations, Lender may from time to
time before or after revocation of this Guaranty without notice to the
undersigned and without affecting the liability of the undersigned (a)
surrender, release, impair, sell or otherwise dispense of any security or
collateral for the Obligations, (b) release or agree not to xxx any guarantor or
surety, (c) fail to perfect its security interest in or realize upon any
security or collateral, (d) fail to realize upon any of the Obligations or to
proceed against any Debtor or any guarantor or surety, (e) renew or extend the
time of payment, (f) increase or decrease the rate of interest or the amount of
the Obligations, (g) accept additional security or collateral, (h) determine the
allocation and application of payments and credits and accept partial payments,
(i) determine what, if anything, may at any time be done with reference to any
security or collateral, and (j) settle or compromise the amount due or owing or
claimed to be due or owing from any Debtor, guarantor or surety, which
settlement or compromise shall not affect the undersigneds' liability for the
full amount of the unpaid Obligations. The undersigned expressly consent to and
waive notice of all of the above. To the extent not prohibited by law, the
undersigned consent that venue for any legal proceeding relating to the
collection of this Guaranty shall be, of Lender's option, the county in which
Lender has its principal office in this state, the county in which any of the
undersigned reside or the county in which this Guaranty was executed by the
undersigned.
PERSONS BOUND. This Guaranty benefits Lender, its successors and assigns,
and binds the undersigned, their respective heirs, personal representatives,
successors and assigns.
ENTIRE AGREEMENT. This Guaranty is intended by the undersigned and Lender
as a final expression of this Guaranty and as a complete and exclusive statement
of the terms and conditions to the full effectiveness of this Guaranty. This
Guaranty may not be supplemented or modified except in writing. This Guaranty
includes additional provisions on the reverse side.
Sec'd by SBSA
dated 7/17/96
NOTICE TO GUARANTOR
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You are being asked to guarantee the part, present and future Obligations of
Debtor. If Debtor does not pay, you will have to. You may also have to pay
collection costs. Lender can collect the Obligations from you without first
trying to collect from Debtor or another guarantor.
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BY: Aircraft Builder, Products Company, Inc. (SEAL) (SEAL)
------------------------
[signature]
0000 Xxxxxxxxx Xxxxx [xxxxxxxxxxx] Xxxxxx, XX 000000
------------------------
(_______________________) (_______________________)
For Wisconsin Purchasers only. Each guarantor who signs above represents that
this obligation is incurred in the interest of his or her marriage or family.
x x
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FOR LENDER CLERICAL USE ONLY Copies of documents or WBA 156 [ ] Documents Delivered: or
may be required [ ] 156 Delivered
_____________________________
_____________________________
_____________________________
REPRESENTATIONS. The undersigned acknowledge and agrees that Lender (a)
has not made any representations or guarantees with respect to, (b) has not
assumed any responsibility to the undersigned for, and (c) has no data to the
undersigned to the undersigned regarding the enforceability of any of the
Obligations or the financial condition of any Debtor or guarantor. The
undersignedexpressly determined the credit worthiness of Debtor and the
enforceability of the Obligations owed until the Obligations are paid in full.
REVOCATION. This is a continuing guaranty and shall remain in full force
and effect until Lender receives written notice of its revocation signed by the
undersigned or actual notice of the death of the undersigned. Upon revocation by
written notice or actual notice of death, the Guaranty shall continue in full
force and effect until revocation by written notice or actual notice of death,
the Guaranty shall continue in full force and effect as to all Obligations
contracted for or incurred before revocation, and Lender shall have the rights
provided by the Guaranty as if no revocation had occurred. Any renewal,
extension or increase in the interest rate of any such Obligation, whether made
before or after revocation, shall constitute an Obligation contracted for or
incurred before revocation. Obligations contracted for or incurred before
revocation shall also include credit extended after revocation pursuant to
commitments made before revocation. Revocation by one of the undersigned shall
not affect any of the [liabilities ?] or obligations of any of the undersigned
and this Guaranty shall continue in full force and effect with respect to them.
ACKNOWLEDGMENT
STATE OF WISCONSIN )
) ss.
COUNTY OF ROCK )
This instrument was acknowledged before me on July 20, 1996 by Xxxxxxxxx/k
Xxxxxxxxx
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
____________________________________
[Signature]
Notary Public Rock County, Wis.
My Commission Expires: 8/8/99
GUARANTY
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THIS GUARANTY, effective the 22nd day of December, 1992, is executed and
delivered by American Builders & Contractors Supply Co., Inc., a Texas
corporation (hereinafter referred to as "Guarantor").
WITNESSETH:
WHEREAS, Transohio Saving Bank, a national banking association ("Lender")
has agreed to make a loan to XXXXXXX X. XXXXXXXXX ("Borrower") in the original
principal sum of ONE MILLION SIX HUNDRED FORTY THOUSAND and 00/100 DOLLARS
($1,640,000.00) evidenced by a Promissory Note (the "Note"); and
WHEREAS, the Note is secured by a Open-Ended Mortgage, Assignment of Rents
and Security Agreement dated July 29, 1988 ("Mortgage"), encumbering certain
real property in Palm Beach County, Florida, more particularly described in
Exhibit "A" attached hereto and made a part hereof (the "Property") and other
property described in the Mortgage; and
WHEREAS, Borrower is the President of Guarantor and Guarantor agrees to
execute this Guaranty to induce Lender to permit Borrower to transfer the
Property to Guarantor.
NOW, THEREFORE, in consideration of Lender making the loan, and accepting
the Note, Mortgage and related documents, which it is acknowledged and agreed
that Lender is doing in full reliance hereon, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Guarantor hereby irrevocably covenants, warrants and agrees as follows:
1. That notwithstanding any provision in the Note or Mortgage, Grantor
hereby unconditionally and irrevocably guarantees to Lender the full payment
when due, whether by acceleration or otherwise, of any and all Liabilities, as
described herein of Borrower to Lender. The term "Liability" or "Liabilities"
as used herein shall mean any and all liabilities and obligations of Borrower to
Lender as evidenced by the Note and any and all indemnifications set forth in
the Note or Mortgage.
2. Lender may at any time and from time to time (whether before or after
revocation or termination of this Guaranty) without notice to Guarantor (except
as required by law), without incurring responsibility to Guarantor without
impairing releasing or otherwise affecting the obligations of Guarantor in whole
or in part and without the endorsement or execution by Guarantor of any
additional consent, waiver or guaranty, (a) change the manner, place or terms of
payment, and change or extend the time of or renew or alter, any Liability or
installment thereof, or any security therefore and the guaranty made herein
shall apply to the Liabilities as so changed, extended, renewed or altered; (b)
sell, exchange, release, surrender, realize upon or otherwise deal with in any
manner and in any order any property at any time pledged or mortgaged to secure
the Liabilities and any off-set thereagainst; (c) exercise or refrain from
exercising any rights against Borrower or others (including Guarantor) or act or
refrain from acting in any other manner;(d) settle or compromise any Liability
or any security therefor and may subordinate the payment of all or any part
thereof to the
payment of any Liability (whether or not due) of Borrower to creditors of
Borrower other than Lender and Guarantor; and (e) apply any sums from any
sources to any Liability without regard to any Liabilities remaining unpaid.
3. Guarantor hereby waives any and all requirements that Lender institute
any action or proceeding, at law or in equity against Borrower or against any
other party or parties with respect to the Liabilities as a condition precedent
to bringing any action against Guarantor upon this Guaranty. All remedies
afforded to Lender by reason of this Guaranty are separate and cumulative
remedies and no one of such remedies, whether waived by Lender or not, shall be
deemed to be an exclusion of any one of the other remedies available to Lender
and shall not in any way limit or prejudice any other legal or equitable remedy
which Lender may have.
4. Guarantor further agrees that it shall not be released from its
obligations hereunder by reason of any amendment to or alteration of the terms
and conditions of the Note or Mortgage or the indebtedness arising thereunder,
nor shall Guarantor's obligations hereunder be altered or impaired by any delay
by Lender in enforcing the terms and obligations of the Note or Mortgage or by
any waiver of any default by Lender under the Note or Mortgage, it being the
intention that Guarantor shall remain fully liable hereunder, notwithstanding
any such event.
5. No extension of the time of payment or performance of any obligation
hereunder guaranteed, or the renewal thereof, nor delay in the enforcement
thereof or of this Guaranty, or the taking, exchanging, surrender or release of
other security therefor or the release or compromise of any liability of any
party shall affect the liability of or in any manner release Guarantor, and this
Guaranty shall be a continuing one and remain in full force and effect until
each and every obligation hereby guaranteed shall have been fully paid and
performed.
6. That until Guarantor is released as hereinbefore described, Guarantor
shall not be released by any action or thing which might, but for this provision
of this Guaranty, be deemed a legal or equitable discharge of Guarantor, or by
reason of any waiver, extension, modification, forbearance or delay by Lender,
or Lender's failure to proceed promptly or otherwise, or by reason of any
further obligation or agreement between any owner of the Property and the then
holder of the Mortgage and the Note secured thereby or any of the terms,
covenants and conditions contained therein, and Guarantor hereby expressly
waives and surrenders any defense to Guarantor's liability hereunder based upon
any of the foregoing act, things, agreements or waivers.
7. Lender shall not be required to give any notice to Guarantor hereunder
in order to preserve or enforce Lender's rights hereunder (including, without
limitation, notice of any default under or amendment to the Note or Mortgage),
any such notice being expressly waived by Guarantor. Upon the occurrence of a
default under the Note or Mortgage, Lender is hereby authorized, at any time and
from time to time, without notice to Guarantor or to any other person, any such
notice being hereby expressly waived, to immediately set-off, appropriate and
apply any and all deposits (general or special) and any other indebtedness at
any time held or owing by Lender to or for the credit or the account of
Guarantor against and on account of the obligations and liabilities of Guarantor
hereunder. Notwithstanding any payment or payments hereunder or any such set-
off, appropriation or application, until such time as all amounts owing to
Lender have been paid
in full, Guarantor shall not be subrogated to any of the rights of Lender
against Borrower under the Note or Mortgage, or entitled to a tender, redelivery
or reassignment of the Note or the Mortgage, or entitled to a tender, redelivery
or reassignment of the Note or the Mortgage or any other collateral security
give for the loan.
8. Guarantor agrees that it shall make no claim or set-off, defense,
recoupment or counterclaim of any sort whatsoever, nor shall Guarantor seek to
impair, limit or defeat in any way its obligations hereunder and Guarantor
hereby waives any right to such a claim in limitation of its obligations
hereunder.
9. Guarantor shall be in default hereunder upon: (a) non-payment of any
liability when due; (b) failure of Borrower or Guarantor to perform any
agreement creating or otherwise affecting any Liability or any provision hereof,
or to pay in full when due, any obligation of Borrower or Guarantor under the
Note or Mortgage; (c) the death, dissolution, termination of existence,
insolvency, or business failure of Borrower or Guarantor, appointment of a
receiver of any part of the property of any such party, assignment for the
benefit of creditors by or the commencement of any proceeding in bankruptcy or
insolvency by or against Borrower or Guarantor; (d) the entry of a judgment
against Borrower or Guarantor; (e) the issuing of any attachment or garnishment,
or the filing of any lien against any property of Borrower or Guarantor; (f) the
taking of possession of any substantial part of the property of Borrower or
Guarantor at the instance of any governmental authority; (g) the merger,
consolidation or reorganization of Borrower; (h) the determination by Lender
that a material adverse change has occurred in the financial condition of
Borrower or Guarantor from the conditions set forth in the most recent financial
statement of any such party heretofore furnished to Lender or from the condition
of such party as heretofore most recently disclosed to Lender in any manner; or
(i) falsity in any material respect of, or any material omission in, any
representation or statement made to Lender by or on behalf of Borrower or
Guarantor in connection with any Liability.
10. Upon the occurrence of any default thereunder which continues after
the expiration of any applicable grace period, Lender shall have all of the
remedies of a creditor and, to the extent applicable, or a secured party, under
all applicable law. Without limiting the generality of the foregoing, Lender
may, at its option and without notice or demand; (a) declare any Liability
accelerated and due and payable at once; (b) take possession of any collateral
security wherever located, and sell, resell, assign, transfer and deliver all or
any part of said property of borrower or Guarantor, at any broker's board or
exchange or at any public or private sale, for cash or on credit for future
delivery, and in connection therewith Lender may grant options and may impose
reasonable conditions such as requiring any purchaser of any stock sold to
represent that such stock is purchased for investment purposes only, and, upon
any such sale, Lender, unless prohibited by law the provision of which cannot be
waived, may purchase all or any part of said property to be sold, free from and
discharge of all trusts, claims, right of redemption and equities of Guarantor
whatsoever; and (c) set-off against any or all Liability or other obligations of
Guarantor hereunder all money owed by Lender in any capacity to Guarantor
whether or not due, and also set-off against all other Liabilities of Borrower
or any obligations of Guarantor hereunder to Lender all money owed by Lender in
any capacity to Borrower or Guarantor, and Lender shall be deemed to have
exercised such right of set-off and to have made a charge against any such money
immediately upon the occurrence of such default although made or entered on the
books subsequent thereto.
11. Guarantor shall pay all costs of collection and reasonable attorney's
fees, including attorneys' fees incurred with or without suit (and with suit,
including out of court resolution or at trial and appellate levels of
litigation), in bankruptcy proceeding or otherwise, incurred or paid by Lender
in enforcing the payment of any Liability or enforcing or preserving any right
or interest of Lender hereunder, including the collection, sale or delivery of
any collateral security from time to time pledged hereunder; and after deducting
such fees, cost and expenses from the proceeds of sale or collection, Lender may
apply any residue to pay any of the Liabilities and Guarantor shall continue to
be liable for any deficiency with interest, which shall remain a Liability.
12. in the event Lender pays, repays or recovers any amount or amounts in
payment or on account of any of the Liabilities, then Guarantor agrees that any
such payment, repayment or recovery shall be binding upon Guarantor,
notwithstanding any revocation hereof or the cancellation of any note or other
instrument evidencing any Liability, and Guarantor shall be and remain liable to
Lender hereunder for the amount so paid, repaid or recovered.
13. Lender shall not be bound to take any steps necessary to preserve any
right in any of the property of Guarantor against prior parties who may be
liable in connection therewith, and Guarantor hereby agrees to take any such
steps. Lender may nevertheless at any time: (a) take any action it may deem
appropriate for the care or preservation of such property or of any rights of
Guarantor or Lender therein; (b) demand, xxx for, collect or receive any money
or property at any time due, payable or receivable on account of or in exchange
for any property of Guarantor, (c) compromise and settle with any person liable
on such property, or (d) extend the time of payment or otherwise change the term
thereof as to any party liable thereon, all without notice to, without incurring
responsibility to, and without affecting any of the obligations of Guarantor
hereunder.
14. Guarantor hereby acknowledges that its obligations hereunder are
primary and not secondary and that Lender shall not be required to proceed first
against Borrower, or any other person, firm or corporation, whether primarily or
secondarily liable, or against any collateral security held by it, before
resorting to Guarantor for payment, and Guarantor shall not be entitled to
assert as a defense to the enforceability of the guaranty set forth hereunder
any defense of Borrower with respect to any Liability.
15. Lender shall have the right, at any time, without notice, to: (a)
transfer into its own name or that of its nominee any of the property of
Guarantor; (b) notify any obligor on any of such property to make payment to
Lender of any amounts due thereon; and (c) take control of any proceeds of any
such property.
16. This Guaranty is assignable by Lender and shall bind the heir,
devisees, personal representatives, successors and assigns of the parties hereto
and shall inure to the benefit of any successor or assign of Lender.
17. Guarantor hereby waives notice of acceptance of this Guaranty and all
of presentment, demand, protest, notice of protest and of dishonor, notice of
default and all other notices relative to this Guaranty of every kind and
description set forth in the Note or Mortgage, or provided by statute or role of
law.
18. Any notice, demand or request by Lender to Guarantor or from Guarantor
to Lender shall be in writing and shall be deemed to have been duly give or made
if either delivered personally or if mailed by certified or registered mail,
postage prepaid, addressed to the address set forth below (or at the correct
address of any assignee of Lender), except that mailed written notices shall not
be deemed given or served until three (3) days after the date of mailing
thereof.
If to Lender: Transohio Savings Bank
0000 Xxxxxxxx Xxxxxx, X.X.
Xxxxxxxxx, Xxxx 00000
If to Guarantor: American Builders & Contractors Supply Co., Inc.
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxx 00000
19. This Guaranty shall, in all respect, be governed by and construed in
accordance with the laws of the State of Florida, including all matters of
construction, validity and performance. To the extent permitted by law,
Guarantor hereby waives any provision of law that renders any provision
hereunder prohibited or unenforceable in any respect.
20. In the event that any provision of this Guaranty is held to be void or
unenforceable, all other provisions shall remain unaffected and be enforceable.
21. No invalidity, irregularity or unenforceability of all or any part of
the Liabilities or of any security therefor shall affect, impair or be a defense
to this Guaranty, and this Guaranty is a primary and absolute obligation of
Guarantor.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty on the date
specified below:
WITNESSES: AMERICAN BUILDERS &
CONTRACTORS SUPPLY CO., INC.
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Name: By: Xxxxxxx X. Xxxxxxxxx, President
(please print)
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Name:
(please print)
EXHIBIT "A"
LEGAL DESCRIPTION
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The West 17.5 feet of Lot 2, all of Lots 3 through 18 inclusive and the West
17.5 feet of Lot 19, all being in Block 00, XXXX XXXXX XXXX according to the
Plat thereof, as recorded in Plat Book 13, Page 24, of the Public Records of
Palm Beach County, Florida.
And;
The Southerly 25 feet of the 45 foot right-of-way of 14th Avenue as abandoned
(now known as 4th Avenue North), abutting the West 17.5 feet of Xxx 0 xxx Xxxx 0
xxxxxxx 00 xxxxxxxxx, Xxxxx 27, as shown on said plat of .ALTA VISTA PARK.
And:
The Northerly 25 feet of the 50 foot right-of-way of 13th Avenue, as abandoned
(now known as 3rd Avenue North), abutting Lots 11 through 18 inclusive and, the
West 17.5 feet of Xxx 00, Xxxxx 00, as shown on said plat of ALTA VISTA PARK.
Together with a non exclusive easement for ingress and egress over the West
30.00 feet of the East 383.00 feet of Tract 22, and the West 30.00 feet of the
East 383.00 feet of Tract 19, XXXXXX SUBDIVISION as recorded in Plat Book 5,
Page 12, Public Records of Palm Beach County, Florida, and the West 30.00 feet
of the East 383.00 feet of the North 20.00 feet of 14th Avenue, as abandoned,
(now known as 0xx Xxxxxx Xxxxx): as shown on the plat of ALTA VISTA PARK,
according to the plat thereof, as recorded in Plat Book 13, Page 24, Public
Records of Palm Beach County, Florida.
