EXHIBIT 10.3
CONTINUING GUARANTY
1. Promise to Pay. For value received, the undersigned hereby absolutely
and unconditionally guarantees to CHEMICAL BANK SHORELINE, a Michigan banking
corporation (the "Bank"), the full and prompt payment or performance of the
following in accordance with the terms of this Guaranty: any and all
indebtedness, obligations, promises, debts and liabilities of every kind and
nature of EXPRESS 1, INC. (the "Debtor") to the Bank however evidenced, whether
now existing or hereafter created or arising, whether direct or indirect,
absolute or contingent, joint or several and however owned, held or acquired by
the Bank, whether through discount, overdraft, purchase, direct loan or as
collateral or otherwise and any and all indebtedness, obligations or liabilities
for which Debtor would otherwise be liable to the Bank were it not for the
invalidity, irregularity or unenforceability of them by reason of any
bankruptcy, insolvency or other law or order of any kind, or for any other
reason (hereinafter collectively the "Indebtedness"). The undersigned also
agrees to pay all costs and expenses including, but not limited to, reasonable
attorney's fees incurred by the Bank in endeavoring to collect the Indebtedness
or any part thereof and in enforcing this Guaranty or realizing upon any
collateral for the Indebtedness or this Guaranty (including participating or
taking action in any bankruptcy or other insolvency proceeding of the Debtor or
the undersigned).
2. Extent of Liability. If the Debtor fails to pay all or any part of the
Indebtedness when due, whether by default or maturity, the undersigned
immediately upon the demand of the Bank will pay to the Bank the amount due and
unpaid by the Debtor as if such amount constituted the direct and primary
obligation of the undersigned. The Bank shall not be required prior to any such
demand on or payment by the undersigned to make any demand upon or pursue or
exhaust any of its rights or remedies against the Debtor or any other person
obligated with respect to the Indebtedness ("Obligor") or to pursue or exhaust
any of its rights or remedies with respect to any collateral for the
Indebtedness or this Guaranty. Upon the death, incompetency, dissolution,
liquidation or insolvency (however evidenced) of the Debtor, or the institution
of bankruptcy or receivership proceedings against or by the Debtor, all of the
Indebtedness then existing shall, at the option of the Bank and without notice
to the Debtor or the undersigned, immediately become due and payable by the
undersigned. The Bank may enforce this Guaranty against the undersigned without
any obligation to resort to the Debtor for the payment or to any other guarantor
or any collateral, security, liens or other rights or remedies of the Bank. This
is a continuing guaranty of payment and not of collection and remains effective
whether the Indebtedness is from time to time reduced and later increased or
entirely extinguished and later reincurred. The undersigned delivers this
Guaranty based solely on the undersigned's independent investigation of (or
decision not to investigate) the financial condition of the Debtor and is not
relying on any information furnished by the Bank. The undersigned assumes full
responsibility for obtaining any further information concerning the Debtor's
financial condition, the status of the Indebtedness or any other matter which
the undersigned may deem necessary or appropriate now or later. The undersigned
knowingly accepts the full range of risk encompassed in this Guaranty, which
risk includes, without limit, the possibility that the Debtor may incur
Indebtedness to the Bank after the financial condition of the Debtor, or the
Debtor's ability to pay debts as they mature, has deteriorated.
The undersigned agrees to pay the Indebtedness to the Bank in
accordance with the terms of each instrument and document evidencing the
Indebtedness regardless of whether
such terms are held to be unenforceable, void or of no effect against the Debtor
or any other Obligor. Without limiting the generality of the foregoing, the
undersigned 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 that may be available to the Debtor or any other
Obligor, or any setoff available to the Debtor or any other Obligor against the
Bank, whether or not on account of a related transaction. The undersigned shall
be liable for any deficiency remaining after foreclosure of or realization upon
any security for all or part of the Indebtedness, whether or not the liability
of the Debtor or any other Obligor for the deficiency is discharged pursuant to
statute, judicial decision or otherwise.
3. Waivers and Powers of the Bank. The undersigned waives: (i) and
postpones any and all rights (whether by subrogation, indemnity, reimbursement,
or otherwise) to recover from the Debtor any amounts paid by the undersigned
pursuant to this Guaranty until such time as Bank has been fully and irrevocably
paid the entire Indebtedness and no such payment (or any part thereof) is
subject to any actual or potential claim for recovery, return or disgorgement as
a preference or otherwise; (ii) any notice of the Debtor incurring any of the
Indebtedness; and (iii) presentment, demand, protest or notice of dishonor,
non-payment or other default with respect to any of the Indebtedness or any
collateral therefore. The undersigned hereby grants to the Bank full power in
its discretion and without notice to the undersigned to deal in any manner with
the Indebtedness and any guarantor or any collateral, including but not limited
to the following powers:
A. To change any terms of any of the Indebtedness, including
the rate of interest and to grant any extension or renewal of the
Indebtedness and any other indulgence with respect thereto and to
effect any release, compromise or settlement of the Indebtedness;
B. To forebear or enter into any agreement to forebear from
taking any action with respect to any of the Indebtedness or with
respect to any guarantor or any collateral and to change the terms of
any agreement to forebear;
C. To forebear for calling for additional collateral to secure
any of the Indebtedness or any other obligation of the Debtor to the
Bank;
D. To consent to the substitution, exchange or release of any
one of the undersigned (if more than one) and any other guarantors or
all or any part of any collateral securing the Indebtedness whether or
not any new collateral or guaranties, if any, received by the Bank as a
result of any such substitution, exchange or release, shall be of the
same or of a different character or value than the collateral or
guarantees surrendered by the Bank;
E. If the Indebtedness is not paid when due, whether by
default, demand or maturity or if there is a default in the performance
of any obligation with respect to the collateral, to realize on all or
part of the collateral as a whole or in such parcels or subdivided
interest as the Bank may elect at any public or private sales for cash
or on credit for future delivery without demand,
2
advertisement or notice of the time or place of sale or any adjournment
thereof (the undersigned hereby waives any such demand, advertisement
and notice to the extent permitted by law), or by foreclosure or
otherwise or to forebear from realizing thereon as the Bank, in its
discretion, deems proper and to purchase all or any part of any
collateral for its own account at any such sale or foreclosure.
The obligations of the undersigned hereunder shall not be released,
discharged or in any way affected nor shall the undersigned have any rights or
recourse against the Bank by reason of any action the Bank may take or omit to
take under the foregoing powers. The undersigned unconditionally and irrevocably
waives each and every defense and setoff of any nature which, under principles
of guaranty or otherwise, would operate to impair or diminish in any way the
obligation of the undersigned under this Guaranty, and acknowledges that each
such waiver is by this reference incorporated into each security agreement,
collateral assignment, pledge and/or other document from the undersigned now or
later securing this Guaranty and/or the Indebtedness, and acknowledges that as
of the date of this Guaranty no such defense or setoff exists.
The obligations of the undersigned hereunder shall not be released,
discharged or in any way affected by reason of the fact that a valid lien on any
of the collateral may not be conveyed to or created in favor of the Bank; nor by
reason of the fact that any of the collateral may be subject to equities or
defenses or claims in favor of others or may be invalid or defective in any way;
nor by reason of the fact that any of the Indebtedness may be invalid or
unenforceable for any reason; nor by reason of the fact that the value of any of
the collateral or the financial condition of the Debtor, any obligor or any
guarantor may not have been correctly estimated or may have changed or may
hereafter change; nor by reason of any deterioration, waste or loss by fire,
theft or otherwise of any collateral unless caused by the willful act or willful
failure to act of the Bank; nor by any other circumstances which might otherwise
constitute a legal or equitable discharge of a surety or guarantor.
The undersigned agrees that no security now or later held by
the Bank for the payment of any Indebtedness, whether from the Debtor, any
guarantor, or otherwise, and whether in the nature of a security interest,
pledge, lien, assignment, setoff, suretyship, guaranty, indemnity, insurance or
otherwise, shall affect in any manner the unconditional obligation of the
undersigned under this Guaranty, and the Bank, in its sole discretion, without
notice to the undersigned, may release, exchange, enforce and otherwise deal
with any security without affecting in any manner the unconditional obligation
of the undersigned under this Guaranty. The undersigned acknowledges and agrees
that the Bank has no obligation to acquire or perfect any lien on or security
interest in any assets, whether real or personal, to secure payment of the
Indebtedness, and the undersigned is not relying upon any assets in which the
Bank has or may have a lien or security interest for payment of the
Indebtedness.
No release or discharge of any one or more of the undersigned or
modification of this Guaranty as to any of the undersigned (if there be more
than one) shall release or discharge any other of the undersigned unless and
until all of the Indebtedness shall have been fully paid.
4. Payments on the Indebtedness. All payments received from the Debtor or
on account of the Indebtedness from any other source shall be taken and applied
as payment in gross
3
and this Guaranty shall apply to and secure any ultimate balance which shall
remain owing to the Bank. The Bank shall have the exclusive right to determine
how, when and what application of payments and credits, if any, shall be made on
the Indebtedness.
5. Termination. Any of the undersigned may terminate their obligation
under this Guaranty as to future Indebtedness (except as provided below) by (and
only by) delivering written notice of termination to an officer of the Bank and
receiving from an officer of the Bank written acknowledgement of delivery;
provided, however, the termination shall not be effective until the opening of
business on the fifth (5th) day ("effective date") following written
acknowledgement of delivery. Any termination shall not affect in any way the
unconditional obligations of the remaining guarantor(s), whether or not the
termination is known to the remaining guarantor(s). Any termination shall not
affect in any way the unconditional obligations of the terminating guarantor(s)
as to any Indebtedness existing at the effective date of termination or any
Indebtedness created after that pursuant to any commitment or agreement of the
Bank or pursuant to any credit facility provided to the Debtor by the Bank
existing at the effective date of termination (whether advances or readvances by
the Bank after the effective date of termination are optional or obligatory), or
any modifications, extensions or renewals of any of this Indebtedness, whether
in whole or in part, and as to all of this Indebtedness and modifications,
extensions or renewals of it, this Guaranty shall continue effective until the
same shall have been fully paid. The Bank has no duty to give notice of
termination by any guarantor(s) to any remaining guarantor(s). The undersigned
shall indemnify the Bank against all claims, damages, costs and expenses,
including, without limit, attorney fees, incurred by the Bank in connection with
any suit, claim or action against the Bank arising out of any modification or
termination of Debtor's credit facilities by the Bank or any refusal by the Bank
to extend additional credit in connection with the termination of this Guaranty.
6. Security. The liability of the undersigned under this Guaranty is
secured by all items now or hereafter deposited in any account of any of the
undersigned with the Bank and by all proceeds of such items (cash or otherwise);
by all account balances of any of the undersigned now or hereafter with the
Bank; by all property of any of the undersigned now or hereafter in the
possession of the Bank; and by any other collateral, rights and properties
described in each and every mortgage, security agreement, pledge, assignment and
other security or collateral agreement which has been or will hereafter be
executed by any of the undersigned to or for the benefit of the Bank (all herein
collectively called the "Guaranty Collateral"). Any Guaranty Collateral or the
proceeds thereof may be applied to satisfy the liability of the undersigned
under this Guaranty.
7. Sale/Assignment: The undersigned acknowledges that the Bank has the
right to sell, assign, transfer, negotiate, or grant participations in all or
any part of the Indebtedness and any related obligations, including, without
limit, this Guaranty, without notice to the undersigned and that the Bank may
disclose any documents and information which the Bank now has or later acquires
relating to the undersigned or to the Borrower in connection with such sale,
assignment, transfer, negotiation, or grant. The undersigned agrees that the
Bank may provide information relating to this Guaranty or relating to the
undersigned to the Bank's parent, affiliates, subsidiaries and service
providers.
4
8. Other Guarantors: If any Indebtedness is guaranteed by two or more
guarantors, the obligation of the undersigned shall be joint and several as to
all guarantors, whether the guarantees are executed together or separately, and
may be enforced at the option of the Bank against each or any number of
guarantors. The Bank, in its sole discretion, may release any one or more of the
guarantors for any consideration which it deems adequate, and may fail or elect
not to prove a claim against the estate of any bankrupt, insolvent, incompetent
or deceased guarantor; and after that, without notice to any guarantor, the Bank
may extend or renew any or all Indebtedness and may permit the Debtor to incur
additional Indebtedness, without affecting in any manner the unconditional
obligation of the remaining guarantors. The undersigned acknowledges that the
effectiveness of this Guaranty is not conditioned on any or all of the
Indebtedness being guaranteed by anyone else.
9. Reinstatement: Notwithstanding any prior revocation, termination,
surrender or discharge of this Guaranty (or of any lien, pledge or security
interest securing this Guaranty) in whole or in part, the effectiveness of this
Guaranty, and of all liens, pledges and security interests securing this
Guaranty, shall automatically continue or be reinstated in the event that any
payment received or credit given by the Bank in respect of the Indebtedness is
returned, disgorged or rescinded under any applicable state or federal law,
including, without limitation, laws pertaining to fraudulent transfer,
bankruptcy or insolvency, in which case this Guaranty, and all liens, pledges
and security interests securing this Guaranty, shall be enforceable against the
undersigned as if the returned, disgorged or rescinded payment or credit had not
been received or given by the Bank, and whether or not the Bank relied upon this
payment or credit or changed its position as a consequence of it. In the event
of continuation or reinstatement of this Guaranty and the liens, pledges and
security interests securing it, the undersigned agrees upon demand by the Bank,
to execute and deliver to the Bank those documents which the Bank determines are
appropriate to further evidence (in the public records or otherwise) this
continuation or reinstatement, although the failure of the undersigned to do so
shall not affect in any way the reinstatement or continuation. If the
undersigned does not execute and deliver to the Bank upon demand such documents,
the Bank and each Bank officer is irrevocably appointed (which appointment is
coupled with an interest) the true and lawful attorney of the undersigned (with
full power of substitution) to execute and deliver such documents in the name
and on behalf of the undersigned.
10. Miscellaneous. All persons signing this Guaranty on behalf of a
corporation, partnership, trust or other entity warrant to the Bank that they
are duly and properly authorized to execute this Guaranty. Nothing in this
Guaranty shall waive or restrict any right of the Bank granted in any other
document or by law. No delay on the part of the Bank in the exercise of any
right or remedy shall operate as a waiver. No single or partial release by the
Bank of any right or remedy shall preclude any other future exercise of that
right or remedy or the exercise of any other right or remedy. No waiver or
indulgence by the Bank of any default shall be effective unless in writing and
signed by the Bank. Nor shall a waiver on one occasion be construed as a bar to
or waiver of that right on any future occasion. Any reference to the Bank shall
include any assignee or holder of all or any part of the Indebtedness. Each and
every immediate and successive assignee, transferee or holder of all or any part
of the Indebtedness shall have the right to enforce this Guaranty by suit or
otherwise for the benefit of such assignee, transferee or holder as fully as if
such assignee, transferee or holder were specifically named herein, provided
that the Bank shall have an unimpaired right to enforce this Guaranty for its
benefit as to so
5
much of the Indebtedness as it has not assigned or transferred. This Guaranty
shall bind the respective heirs, personal representatives, successors and
assigns of the undersigned. The undersigned agrees that any action against them
for enforcement of this Guaranty may be brought by the Bank in any federal,
municipal or state court in Michigan having jurisdiction of the subject matter;
the undersigned consent to personal jurisdiction over them by such courts; and
they consent to venue in such courts. This Guaranty was executed in Michigan and
is governed by Michigan law. Any married woman executing this Guaranty
acknowledges that she binds and intends to bind her individual estate hereby.
11. JURY TRIAL WAIVER. THE UNDERSIGNED AND BANK ACKNOWLEDGE THAT THE RIGHT
TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY,
AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF
THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT WAIVES ANY
RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR
ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS GUARANTY OR THE INDEBTEDNESS.
Date of Signing: October ____, 2005
WITNESSES: Guarantor:
________________________ SEGMENTZ, INC.
________________________ By: ____________________________________
Xxxx X. Xxxxxxxxx
Its: Chief Financial Officer
Guarantor's Address:
429 Post Road
-------------------------------------------
Buchanan, MI 49107
-------------------------------------------
6
