Guaranties in substantially the following form respecting the
indebtedness of Xxxxxx Drive Away, Inc., TDI, Inc. and Interstate Indemnity
Company, have been provided by The Xxxxxx Group, Inc., and Xxxxxx Finance, Inc.,
as well as by Xxxxxx Drive Away, Inc. (respecting indebtedness of Xxxxxx Drive
Away, Inc. and Interstate Indemnity Company.
ABSOLUTE, UNCONDITIONAL AND CONTINUING GUARANTY
THIS ABSOLUTE, UNCONDITIONAL AND CONTINUING GUARANTY ("Guaranty") is made and
entered into, to be effective the 27th day of March, 1997, by THE XXXXXX GROUP,
INC., a Delaware corporation, whose address is 0000 Xxx X.X. 00 Xxxx, Xxxxxxx,
Xxxxxxx 00000 ("Guarantor"), to and in favor of KEYBANK NATIONAL ASSOCIATION,
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, and any Affiliate Bank (which shall
hereinafter be referred to individually or collectively as "Bank").
RECITALS
X. Xxxxxx Drive Away, Inc., an Indiana corporation with an address at 0000 Xxx
X.X. 00 Xxxx, Xxxxxxx, Xxxxxxx 00000 ("Xxxxxx"), is a wholly-owned subsidiary of
The Xxxxxx Group, Inc. ("Guarantor").
X. Xxxxxx has and shall become liable and indebted to Bank.
X. Xxxxxx shall hereinafter be referred to as "Borrower."
D. "Affiliate Bank" shall mean any one or more bank subsidiaries of KeyCorp and
its successors.
E. As a condition to the loans, extensions of credit and/or other financial
accommodations made by Bank to Borrower concurrently with the delivery of this
Guaranty, and as a condition to any loans, extensions of credit and/or other
financial accommodations made by Bank to Borrower from time to time hereafter,
Bank requires that Guarantor guarantee on an absolute, unconditional and
continuing basis the payment of all of the present and future liabilities and
indebtedness of Borrower to Bank.
X. Xxxxxxxxx expects to derive an economic benefit from any loans, extensions of
credit and/or other financial accommodations made by Bank to Borrower, and in
consideration of such expected benefit and to induce Bank to make loans, extend
credit and/or make other financial accommodations to Borrower, Guarantor is
willing to guarantee all such liabilities and indebtedness of Borrower to Bank.
NOW, THEREFORE, for value received and as an inducement for and in consideration
of the loans, extensions of credit and/or other financial accommodations made by
Bank to Borrower concurrently with the delivery of this Guaranty, and of other
loans, other extensions of credit and/or other financial accommodations to
Borrower which Bank, at its sole option and subject to its credit policies and
practices, may grant to Borrower from time to time hereafter, Guarantor does now
hereby agree to and for the benefit of Bank as follows:
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AGREEMENT
ARTICLE 1.
Inclusion of Recitals
The Recitals above set forth are a part of this Guaranty for all purposes.
ARTICLE 2.
Statement of Guaranty
Section 2.1. Liabilities and Indebtedness Guaranteed. Guarantor guarantees, on
an absolute, unconditional and continuing basis, the full and prompt payment
when due, whether by lapse of time or acceleration, of each one and all of the
existing and future loans, extensions of credit and/or other financial
accommodations of every kind and type whatsoever, now or hereafter owing by
Borrower to Bank including, but not limited to, the following:
1. all loans, and extensions of credit and other financial
accommodations previously, currently or hereafter made by Bank
to Borrower and any and all extensions or renewals of them;
and
2. all other obligations, liabilities and indebtedness of
Borrower to and in favor of Bank, direct or indirect, absolute
or contingent, now existing or hereafter arising, of every
kind and type whatsoever and however evidenced (including, but
not limited to, all existing and future loans, advances,
indebtednesses, liabilities, guarantees of the obligations of
others, and obligations to reimburse payments made under
letters of credit), whether secured or unsecured;
(the "Guaranteed Obligations").
Section 2.2. No Limitation. No act or thing need occur to establish the
liability of the undersigned hereunder, and no act or thing, except full payment
and discharge of all Indebtedness, shall in any way exonerate the undersigned or
modify, reduce, limit or release the liability of the undersigned hereunder.
Section 2.3. Absolute, Unconditional and Continuing. The liabilities of
Guarantor under this Guaranty are absolute, unconditional and continuing, and
irrespective of the regularity of any writing, document or instrument evidencing
any of the Guaranteed Obligations; and, to the extent any Guaranteed Obligations
are secured, irrespective of the validity, regularity or enforceability of any
writing, document or instrument evidencing such security for the Guaran xxxx
Obligations; and irrespective of the value of the security itself.
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Section 2.4. Severable. This Guaranty may be enforced from time to time as to
any part or all of the Guaranteed Obligations, and the enforcement of this
Guaranty as to part of the Guaranteed Obligations shall not terminate or
eliminate in any manner the liabilities of Guarantor for the other Guaranteed
Obligations.
ARTICLE 3.
Payment by Guarantor
Section 3.1. Default. If the Borrower should fail at any time fully and promptly
to pay when due, whether by lapse of time or acceleration, all or any part of
the Guaranteed Obligations, Guarantor, upon written demand by Bank, will
immediately pay such Guaranteed Obligations to Bank in the same manner as if
such Guaranteed Obligations constituted the direct and primary obligation or
obligations of Guarantor to Bank.
Section 3.2. Notice. The written demand of Bank for payment of the Guaranteed
Obligations, or any of the Guaranteed Obligations, shall be given in writing and
personally delivered to Guarantor, or sent by telegraph, facsimile transmission,
or overnight courier, or by U.S. Mail, postage prepaid, Registered or Certified,
Return Receipt Requested, to the Guarantor's address set forth above in this
Guaranty. If there is any address change, Bank shall be notified by Guarantor in
writing, and until such notice is received by Bank, Bank may rely upon the above
address.
Section 3.3. Obligation of Guarantor. Bank is not required, prior to the
enforcement of the Guaranty, to take any action or realize against the Borrower
or against any other persons, guarantors or collateral, guaranteeing or securing
any of the Guaranteed Obligations.
Section 3.4. Valuation and Appraisement Laws. The liability of Guarantor with
respect to the Guaranteed Obligations in all cases shall be without relief from
valuation and appraisement laws.
ARTICLE 4.
Waiver by Guarantor
Section 4.1. Waiver. Guarantor hereby waives each of the following:
1. notice of acceptance of this Guaranty, of each and every loan,
extension of credit, or other financial accommodation by Bank
(including extensions or renewals) to Borrower, and of the
amount or nature of the Guaranteed Obligations which may exist
from time to time;
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2. presentment, demand and protest, and notice of dishonor,
non-payment or other default with respect to any of the
Guaranteed Obligations;
3. any and all defenses, claims and discharges of Borrower or any
other obligor, pertaining to the Guaranteed Obligations,
except the defense of discharge by payment by Guarantor in
full; and, without limiting the generality of the foregoing,
the Guarantor will not assert, plead or enforce against the
Bank any defense of waiver, release, discharge in bankruptcy,
statute of limitations, res judicata, statute of frauds,
anti-deficiency statute, fraud, incapacity, minority, usury,
illegality or unenforceability which may be available to the
Borrower or any other person liable with respect to any
Guaranteed Obligations, or any setoff available to the
Borrower or any other person against Bank; and Guarantor
waives any and all claims or rights to assert claims of
discharge under I.C. 26- 1-3.1-605;
4. any requirement that Bank take action, realize, institute
suit, or exercise or exhaust its rights or remedies against
the Borrower or against any other person or guarantor, or
collateral securing and/or guaranteeing all or any part of the
Guaranteed Obligations [the obligations of any such other
person or guarantor, and any such collateral are referred to
as ("Collateral")], prior to enforcing any rights it has under
this Guaranty or otherwise against Guarantor;
5. the invalidity of any instruments evidencing Guaranteed
Obligations or the disability or legal incapacity of any
person in whole or in part, at any time;
6. the fact that the amount or value of any of the property
constituting a part of the Collateral, may at any time have
been or be incorrectly estimated;
7. the deterioration in market or other values, waste, loss by
fire, theft, loss, non- existence or substitution of any
property constituting a part of the Collateral;
8. relief from valuation and appraisement laws; and
9. any right that Guarantor has, or might hereafter have, to
recover from the Borrower the monies that Guarantor is
obligated to pay to Bank hereunder. The undersigned will not
exercise or enforce, and expressly waives, any right of
contribution, reimbursement, indemnification, recourse or
subrogation available to the undersigned against any person
liable for payment of the Indebtedness, including, but not
limited to, the Borrower, or as to any collateral security
therefor.
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Section 4.2. Failure of Bank to Act. The failure of Bank or any other persons to
take any of the actions authorized in this Guaranty, or the existence of any
conditions, waived above, shall in no way affect or release the obligations of
the Guarantor under this Guaranty.
ARTICLE 5.
Rights of Bank
Section 5.1. Rights of Bank with Respect to the Obligations Guaranteed. Bank
shall have the right, without releasing Guarantor from its liabilities hereunder
and without notice to the Guarantor, to deal in any manner with any of the
Guaranteed Obligations or the Collateral including, but not limited to, the
following rights:
1. to, on any number of occasions, modify or otherwise change any
terms or alter any part of the Guaranteed Obligations,
including, but not limited to, changing the rate of interest,
or affecting any release, compromise or settlement;
2. to extend or renew any or all of the Guaranteed Obligations on
any number of occasions and to forbear to take steps to
enforce the payment of all or any part of them against
Borrower;
3. to obtain Collateral or to not obtain Collateral (including
rights of setoff), to release or to forbear to proceed against
all or any part of the Collateral, or to substitute any new
Collateral for any existing Collateral;
4. to apply payments received from Borrower, from Guarantor, from
others or from realization upon any Collateral in such manner
and order in priority as Bank sees fit;
5. to make any election against the Borrower or the Collateral
under the United States Bankruptcy Code, as amended;
6. to add or release any other guarantor, surety, endorser or
accommodation party whether primarily or secondarily liable,
to proceed against all or any one or none of such persons or
entities, to accept partial payments from them and to settle,
compromise or adjust with any of them, all in such manner and
at such time or times as Bank may deem advisable; and
7. to assign or grant participation interests in all or part of
the Guaranteed Obligations.
Section 5.2. Guarantor not Released or Discharged by Bank's Acts or
Omissions. The obligations of Guarantor hereunder shall not be released,
discharged, or affected in any way,
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nor shall Guarantor have any recourse against Bank by reason of any action which
Bank may take or omit to take under this Guaranty or otherwise with respect to
the Guaranteed Obligations or the Collateral. Guarantor expressly agrees that
Guarantor shall be and remain liable for any deficiency remaining after the
foreclosure of any mortgage, security interest or other property interest
securing the Guaranteed Obligations, whether or not the liability of the
Borrower or any other obligor for such deficiency is discharged pursuant to
statute or judicial decision.
Section 5.3. Guaranty Extends to Amounts Applied on Obligation and Then
Returned. If any payment applied by Bank to the Guaranteed Obligations is set
aside, recovered, rescinded or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or reorganization of
the Borrower or any other obligor), the Guaranteed Obligations to which such
payment was applied shall for the purposes of this Guaranty be deemed to have
continued in existence, notwithstanding such application, and this Guaranty
shall be enforceable as to such Guaranteed Obligations as fully as if such
application had never been made and notwithstanding the fact that prior to such
payment being so set aside, recovered, rescinded or required to be returned, the
Guarantor shall have terminated this Guaranty under Section 6.2 below.
Section 5.4. Assignment. The Bank may, without any notice whatsoever to
Guarantor or to the Borrower, sell, assign or transfer the Guaranteed
Obligations and any Collateral, or any part of them, and any part or all of this
Guaranty, and, in such event, each and every immediate and successive assignee,
transferee or holder of all or any part of the Guaranteed Obligations and
Guaranty, shall have the right to enforce this Guaranty (to the extent so sold,
assigned, transferred) by suit or otherwise for the benefit of such assignee,
transferee or holder, as if such assignee, transferee or holder were by name
specifically given such rights, powers and benefits; but the Bank shall continue
to have the unimpaired and absolute right to enforce this Guaranty, for its own
benefit, as to so much of the Guaranteed Obligations owed it that the Bank shall
not have sold, assigned or transferred.
ARTICLE 6.
Termination
Section 6.1. Guaranty is Continuing until Full Payment. This Guaranty shall be
on a continuing basis and shall remain in full force and effect until all
Guaranteed Obligations are paid in full and termination is accomplished in
accordance with the provisions of paragraph 6.2 below.
Section 6.2. Termination. Guarantor may terminate Guarantor's obligation as to
payment of future obligations of the Borrower to Bank (excepting, however, those
with respect to which there is an outstanding commitment or agreement on the
part of Bank to make further loans or advances), by delivering to an officer of
Bank, at the offices of Bank, during banking hours,
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written notice of termination signed by the Guarantor, and by receiving from
such officer written acknowledgment of such delivery. Any such termination shall
be effective on the next banking day of Bank following such written
acknowledgment of delivery.
Section 6.3. Termination not Effective for Obligations Existing at Time of
Termination. Termination of this Guaranty under Section 6.2 above shall have no
affect whatsoever on the obligations of the Guarantor to pay Guaranteed
Obligations existing at the time of termination whether or not they are then
due, nor shall such termination have any affect whatsoever on any extensions or
renewals of such existing Guaranteed Obligations which are effectuated after
such termination. Termination of this Guaranty under Section 6.2 above shall
also have no affect whatsoever on the obligations of Guarantor to pay Guaranteed
Obligations which spring from commitments or agreements on the part of Bank
which were outstanding at the time of the termination.
Section 6.4. Guaranty not Terminated because Borrower is not Indebted to Bank.
This Guaranty shall not be terminated by virtue of the fact that at any time
hereafter the Borrower is not indebted to Bank at any such time, unless
termination is accomplished in accordance with Section 6.2 above.
ARTICLE 7.
Miscellaneous
Section 7.1. Insolvency of Borrower does not Discharge Guarantor. This Guaranty
shall not be discharged by the dissolution or insolvency (however defined) of
the Borrower.
Section 7.2. Dissolution or Insolvency of Guarantor. If Guarantor shall be
dissolved or shall become insolvent (however defined) then Bank shall have the
right to declare immediately due and payable, and Guarantor shall forthwith pay
to Bank, the full amount of all Guaranteed Obligations, whether or not they are
otherwise due and payable, and if the Guarantor voluntarily commences or there
is commenced involuntarily against the Guarantor a case under the United States
Bankruptcy Code, as amended, or under any other bankruptcy or insolvency statute
or law, the full amount of all Guaranteed Obligations, whether or not they are
otherwise due and payable, shall be immediately due and payable to Bank without
demand or notice.
Section 7.3. This Agreement is not a Suretyship. This is an agreement of
guaranty, not of suretyship.
Section 7.4. Representations and Warranties of Guarantor. Guarantor represents
and warrants to Bank that:
1. Guarantor is a corporation duly organized and existing in good
standing and has full power and authority to make and deliver
this Guaranty.
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2. The execution, delivery and performance of this Guaranty by
Guarantor has been duly authorized by all necessary actions of
its officers, directors and share holders and do not and will
not violate the provisions of, or constitute a default under,
any presently applicable law or its Articles of Incorporation
or By-Laws, or any agreement presently binding upon the
Guarantor.
3. This Guaranty has been duly executed and delivered by the
authorized officers of Guarantor and constitutes Guarantor's
lawful, binding and legally enforceable obligation.
4. The authorization, execution, delivery and performance of this
Guaranty do not require notification to, registration with, or
consent or approval by any federal, state, local or foreign
regulatory body or administrative agency.
5. All financial data provided to the Bank by Guarantor in
connection with the execution of this Guaranty are true and
accurate and are not materially misleading.
Section 7.5. Representation and Warranty of Economic Benefit Derived by
Guarantor. Guarantor represents and warrants to Bank that Guarantor has a direct
and substantial economic interest in Borrower and expects to derive substantial
business, economic and other benefits from any loans, extension of credit and/or
other financial accommodations which result in the creation of Guaranteed
Obligations, and this Guaranty is given for a corporate purpose. Guarantor
agrees to rely exclusively on the right to terminate this Guaranty in accordance
with the provisions of Section 6.2 above, if at any time, in the opinion of the
officers, directors or shareholders of Guarantor, the corporate benefits then
being received by the Guarantor in connection with this Guaranty are not
sufficient to warrant the continuance of this Guaranty as to future Guaranteed
Obligations.
Section 7.6. Bank may Refuse to Loan. This Guaranty shall not in any way prevent
the Bank from refusing to loan any additional sums, or extend additional credit,
or make any other additional financial accommodations to the Borrower at any
time from and after the date of this Guaranty, and any such refusal by the Bank
shall not terminate this Guaranty nor diminish or discharge any liability of the
Guarantor.
Section 7.7. Severability of Provisions. Any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without affecting the validity or
enforceability of such provision in any other jurisdiction, and without
affecting the validity or enforceability of the remaining provisions of this
Guaranty in any jurisdiction.
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Section 7.8. Writing Requirement. This Guaranty may not be modified, amended, or
otherwise changed except by a writing signed by Guarantor and Bank.
Section 7.9. Governing Law. Guarantor agrees that for all purposes this Guaranty
shall be considered to have been executed and delivered at Elkhart, Indiana, and
that it shall be governed, interpreted and construed in accordance with the
internal laws (and not the law of conflicts) of the state of Indiana.
Section 7.10. Successors and Assigns. This Guaranty is binding upon Guarantor,
and Guarantor's successors and assigns, and shall inure to the benefit of Bank,
and its successors and assigns.
Section 7.11. Merger Clause. This instrument is the final, complete and
exclusive statement of the agreement between the Bank and the Guarantor with
respect to Guarantor's guaranty of the payment of the Guaranteed Obligations,
and all prior negotiations, representations, promises and conditions related
thereto are merged into this instrument.
Section 7.12. Information Concerning Financial Conditions of Borrower. Guarantor
acknowledges that it is capable of, and hereby assumes responsibility for
keeping informed of the financial conditions of Borrower, any and all endorsers
and any and all guarantors of the Guaranteed Obligations and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations
that diligent inquiry would reveal, and Xxxxxxxxx hereby agrees that Bank shall
have no duty to advise Guarantor of information known to Bank regarding such
conditions or any such circumstances.
Section 7.13. Headings. Article and Section headings in this Guaranty are
inserted for convenience only. They shall not be considered part of this
Guaranty, they shall not affect the construction or interpretation hereof, and
they shall not define or limit any of the terms or provisions herein.
Section 7.14. Submission to Jurisdiction; Venue. Guarantor consents to the
jurisdiction of any local, state or federal court located within Elkhart County,
Indiana, (or in the case of a federal court, the jurisdiction of which includes
Elkhart County, Indiana) and consents that all such service of process be made
by registered mail directed to the parties at the address stated in this
Agreement and service so made shall be deemed to be completed five (5) days
after such mailing.
SECTION 7.15. WAIVER OF JURY TRIAL. REGARDING ALL SUITS AND ACTIONS ARISING OUT
OF OR RELATING TO THIS GUARANTY IN ANY WAY, MANNER OR RESPECT, GUARANTOR WAIVES,
AT THE OPTION OF BANK, TRIAL BY JURY.
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IN WITNESS WHEREOF, the Guarantor has hereunto set its hand by its duly
authorized officer to be effective the day and year first above mentioned.
GUARANTOR:
The Xxxxxx Group, Inc.
By:/s/ Xxxxxxx X. XxXxxx
------------------------------------------
(Signature)
Xxxxxxx X. XxXxxx, Chief Financial Officer
and Treasurer
------------------------------------------
ACCEPTANCE
This Guaranty is hereby accepted by KeyBank National Association, by its
undersigned duly authorized officer, to be effective the 27th day of
March, 1997.
BANK:
KeyBank National Association
By:______________________________________
(Signature)
Its:_____________________________________
(Printed Name and Office)
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