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EXHIBIT 10(u)
CONTINUING GUARANTY
In consideration of credit which NATIONAL CITY BANK OF INDIANA, a
national banking association ("Bank"), may from time to time extend to
_________________________________________, an individual ("Debtor"), the
undersigned hereby unconditionally guarantees to Bank, its successors and
assigns, the payment when due, whether by acceleration or otherwise, without
presentment or demand, protest, notice of dishonor, or diligence in collection
and with a right of set-off against the undersigned, together with costs of
collection and reasonable attorneys' fees and without relief from valuation or
appraisement laws, all obligations of Debtor to Bank under a Commercial Time
Note, of even date herewith, in the principal amount of
_____________________________________________ and No/100 Dollars ($____________)
(the "Note"), all in accordance with the terms and conditions of such
indebtedness or obligations and all extensions, renewals, amendments or
replacements thereof, whether joint or several, direct or indirect, absolute or
contingent, and evidenced by promissory notes or otherwise. A copy of the Note
is attached hereto as Exhibit "A," and made a part hereof.
Bank may from time to time without notice to the undersigned: (a)
release any collateral which is security for the indebtedness or obligations of
Debtor or any other obligor or substitute or exchange any such collateral, (b)
release any maker, co-maker, endorser or guarantor of the indebtedness or
obligations of Debtor, (c) release, modify or compromise any liability of Debtor
or any other obligor, including the undersigned, or the terms thereof, and (d)
apply any amounts paid to it in such order of application and with such
marshalling of security as it may, in its sole discretion, determine
appropriate; all without the consent of or notice to the undersigned. The
liability of the undersigned shall not be released in part or in whole by reason
of the foregoing, the addition of co-makers, endorsers, guarantors or sureties,
or a failure to perfect any security interest or lien in any collateral securing
indebtedness or obligations of Debtor or any other obligor.
Notice of the acceptance of this Guaranty by Bank and notice to the
undersigned by Bank as to the existence or creation of indebtedness or
obligations by Debtor to Bank are hereby waived by the undersigned. This
Guaranty may be terminated by the undersigned only as to future indebtedness or
obligations of Debtor to Bank after the date of receipt by Bank at their
principal banking offices of a written notice to such effect. The undersigned
hereby waives any and all claims, rights or remedies which the undersigned may
now have or hereafter acquire against the Debtor that arises from the
undersigned's performance under this Guaranty or is in any way related hereto,
including but not limited to, any claim of subrogation, reimbursement,
contribution, or indemnification, whether direct or indirect or arising by
contract, law, equity or otherwise; provided however, that this waiver may be
extinguished by the undersigned by payment in full of all obligations guaranteed
hereunder to the satisfaction of the Bank. Further, the undersigned shall have
no right of contribution against other guarantors or right to pursue collection
of other indebtedness or obligations of Debtor to the undersigned or security
therefore, unless and until Bank shall have received payment in full of all
indebtedness and obligations of Debtor.
The undersigned agrees to furnish to Bank, as soon as available, one (1)
complete copy of all financial reports that are required to be supplied to its
lenders pursuant to the terms of any credit agreements which may now or
hereafter exist.
The undersigned further agrees that, to the extent that the Debtor makes
a payment to Bank, or Bank receives any proceeds of collateral, which payment or
payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or otherwise is required to be repaid to
Debtor, its estate, trustee, receiver or any other party, including without
limitation, under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent ~f such payment or repayment, the obligation
or part thereof which has been paid, reduced or satisfied by such amount shall
be reinstated and continued in full force and effect as of the date such initial
payment, reduction or satisfaction occurred (said payments or repayments being
hereinafter referred to as "Recovered Payments"). The undersigned shall defend
and indemnify Bank of and from any claim or loss under this paragraph including,
without limitation, Bank's attorneys' fees and expenses in the defense of any
such action or suit. This Guaranty shall remain in full force and effect until
all Debtor's indebtedness has been repaid to Bank; provided however, in the
event there are Recovered Payments, this Guaranty shall be reinstated (I) in the
amount of the Recovered Payments, interest thereon at the past due rate under
the Note accruing from the date of Bank's payment of the Recovered Payments, all
costs of Bank's defense to the Recovered Payments and all costs and expenses of
collection and enforcement of this Guaranty, including reasonable attorneys'
fees; and (2) until any issue or controversy regarding any Recovered Payments is
judicially concluded and no right of appeal remains.
This Guaranty is executed under and shall be construed in accordance
with the laws of the State of Indiana, without regard to any conflict of laws
provisions, and shall inure to the benefit of Bank and its successors or assigns
and shall be binding upon the undersigned and the undersigned's successors,
assigns and legal representatives.
The undersigned hereby irrevocably and unconditionally: (a) submits for
the undersigned and the undersigned's property in any legal action or proceeding
commenced by Bank relating to the enforcement of this Guaranty, or for
recognition and enforcement of any judgment in respect thereof to the exclusive
general jurisdiction of the courts of the State of Indiana, the courts of the
United States of America for the Southern District of Indiana, and appellate
courts from any thereof; (b) consents that any such action or proceeding may be
brought in such courts, and waives any objection that the undersigned may now or
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hereafter have to the venue of any such action or proceeding in any such court
or that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same; (c) agrees that services of process in
any such action or proceeding may be effected by mailing a copy thereof by
registered or. certified mail (or any substantially similar form of mail),
postage prepaid, to the undersigned at the undersigned's address set forth below
or at such other address of which Bank shall have been notified in writing; and
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to sue in
any other jurisdiction.
IN ORDER TO AVOID DELAYS AND MINIMIZE EXPENSE, BANK, BY ITS ACCEPTANCE
OF THIS AGREEMENT, AND THE UNDERSIGNED EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN RESPECT OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY RELATED WRITING OR ANY AMENDMENT THERETO, WHETHER NOW EXISTING
OR HEREAFTER ARISING AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE, AND
EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY, AND A COPY OF
THIS AGREEMENT MAY BE FILED WITH ANY COURT AS EVIDENCE OF THE CONSENT OF EACH OF
THE PARTIES HERETO TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty on this
___ day of September, 1999.
Address: 0000 Xxxxxxxxxx Xxxx. "UNDERSIGNED"
Indianapolis, IN 46256 XXXXX SUPERMARKETS, INC
TIN#: 00-0000000
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Name:
Title:
Bank Officer as Witness:
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Name:
Title:
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UNCONDITIONAL GUARANTY
Dated: As of ________, 1999 Indianapolis, Indiana
FOR VALUE RECEIVED, in consideration of the guaranty by Xxxxx
Supermarkets. Inc., an Indiana corporation, of that certain loan agreement and
promissory note, dated _________________, 1999 (the "Loan"), by the undersigned
or his or her spouse in favor of National City Bank, Indiana, pursuant to the
Executive Stock Purchase Plan of Xxxxx Supermarkets, Inc., dated as of September
1, 1998 (the "Plan"), and to induce Xxxxx to guaranty the Loan, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the undersigned hereby unconditionally guarantees to Xxxxx the
full, complete and prompt payment, when due, whether by acceleration or
otherwise, of (i) all principal, interest and all other amounts which may become
due under the Loan, including, but not limited to, penalties, fees, reasonable
attorneys fees and costs of collection, (ii) the Continuing Guaranty Fee
(hereinafter defined), and (iii) the Settlement Fee (hereinafter defined) (each
individually, the "Obligation", and collectively, the "Obligations").
For purposes of this Guaranty, the term Continuing Guaranty Fee shall
mean an amount equal to .5% of the outstanding balance on the Loan at the end of
each calendar quarter ending subsequent to the date of termination of the
undersigned's employment by Xxxxx Supermarkets, Inc. or one of its subsidiary or
affiliated companies for any reason other than death or total and permanent
disability (as defined in the Plan).
For purposes of the Guaranty, the term Settlement Fee shall mean an
amount equal to 50% of the Exit Profit (as defined in the Plan).
This Guaranty shall inure to the benefit of and may be enforced by
Xxxxx Supermarkets, Inc. and any successors and assigns of the Xxxxx
Supermarkets, Inc. (hereinafter individually and collectively referred to as
"Xxxxx").
If the undersigned fails to pay any part of, when due, whether by
acceleration or otherwise, or to fulfill the Obligations according to the terms
thereof (each such failure is referred to herein as a "Default"), the
undersigned, within five (5) days following receipt of the written demand from
Xxxxx, or their permitted assignees, as applicable, shall pay the full amount
past due and payable by the undersigned in accordance with the terms of the
Obligation or shall take such action(s) as needed to remedy such Default. Xxxxx
shall not be required, before any such payment or action by or demand on Xxxxx,
to make any demand upon or pursue or exhaust any of its rights or remedies
against the undersigned, any other guarantor or others with respect to the
payment of any of the Obligations or to pursue or exhaust any of its rights or
remedies with respect to any assets of the undersigned.
This Guaranty is and shall remain a continuing, irrevocable and
unconditional guarantee for the payment and satisfaction of the Obligations and
shall continue in full force and effect all Obligations have been fully paid and
satisfied.
The undersigned hereby waives demand, presentment for payment, notice
of nonpayment, protest, notice of protest, and filing of suit or diligence in
collecting with respect to any of the Obligations. The undersigned grants to
Xxxxx full power, in its uncontrolled discretion, to: (a) to grant or fail to
grant any extension, renewal or postponement of time of payment of the
Obligations and any other indulgence with respect thereto without notice,
consent or consideration, and to effect any release, compromise or settlement
with respect thereto; (b) to enter or fail to enter into any agreement of
forbearance with respect to all or any part of the Obligations, or to change or
fail to change the terms of any such agreement; (c) to forbear or fail to
forbear calling for collateral to secure any of the Obligations; (d) to realize
or fail to realize, in the event of default under the terms of the Obligations,
on the assets of the undersigned or any part thereof, or to realize or fail to
realize on the assets of the undersigned in any particular manner; and (e) in
general, to exercise or fail to exercise any right or remedy under the terms of
the Obligations.
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The Obligations of the undersigned shall not be released, discharged or
in any way affected, nor shall the undersigned have any rights or recourse
against the Xxxxx, by reason of any action that the Xxxxx may take or omit to
take under the foregoing powers.
The Obligations of the undersigned and the rights of Xxxxx shall not be
released, discharged or in any way affected, nor shall undersigned have any
rights against Xxxxx, by reason of the fact that a valid lien or security
interest in any of the assets of the undersigned may not be conveyed to or
created in favor of Xxxxx; nor by reason of the fact that the value of any of
the assets of the undersigned, or the financial condition of the undersigned,
may not have been correctly estimated or may have changed or may thereafter
change.
All rights, powers, privileges and immunities of Xxxxx hereunder shall
inure to the benefit of its successors and assigns, and shall be binding upon
the undersigned.
This Guaranty shall in all respects be governed by and construed in
accordance with the laws and decisions of the State of Indiana, notwithstanding
any jurisdiction's choice of law rules to the contrary.
The undersigned hereby irrevocably consents to the exclusive
jurisdiction and venue of the courts of the State of Indiana and the United
States District Court for the Southern District of Indiana (Indianapolis
Division), and from the appellate courts thereof with respect to any and all
actions related to this Guaranty or to the enforcement of this Guaranty.
IN WITNESS WHEREOF, the undersigned has executed this Unconditional
Guaranty as of the day and year first above written.
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(Signature)
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(Printed Name)
Witness:
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(Signature)
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(Printed Name)
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(Signature)
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(Printed Name)
Witness:
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(Signature)
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(Printed Name)
