EXHIBIT 10.52
GUARANTY
THIS GUARANTY is made the ___ day of June, 2001 by XxXxxxx Group
Leasing, Inc. ("Guarantor"), whose address is 0000 Xxxxxxxx Xxxx, Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000, to and with Standard Federal Bank, a federal savings
bank ("Standard Federal"), whose address is 0000 Xxxx Xxx Xxxxxx Xxxx, Xxxx,
Xxxxxxxx 00000.
RECITALS:
X. XxXxxxx Industries, Inc., XxXxxxx E-Z Pack, Inc., XxXxxxx Galion,
Inc., Shelby Steel Processing Company, XxXxxxx Tube Company d/b/a Quality Tube,
XxXxxxx International FSC and XxXxxxx Southland Co., or any of them
(individually and collectively, "Borrower"), may from time to time request
loans, advances or other financial accommodations from Standard Federal and
Standard Federal may, in its discretion, honor such requests in whole or part
and thereby Borrower may from time to time be indebted to Standard Federal; and
B. Standard Federal is unwilling to make loans, advances or extend
other financial accommodations to or otherwise do business with Borrower unless
Guarantor unconditionally guarantees payment of all present and future
indebtedness and obligations of Borrower to Standard Federal; and
C. Guarantor will directly benefit from Standard Federal's making of
loans advances or extending other financial accommodations to or otherwise doing
business with Borrower.
NOW, THEREFORE, in order to induce Standard Federal to make loans,
advances or extend other financial accommodations to and otherwise do business
with Borrower and for other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, Guarantor hereby covenants and
agrees with Standard Federal as follows:
1. GUARANTY. Guarantor hereby irrevocably and unconditionally
guarantees to Standard Federal and its successors and assigns: (a) the full and
prompt payment and performance when due of the Indebtedness, as hereinafter
defined; and (b) the payment, compliance with and performance of all other
obligations, covenants, representations and warranties of every kind, nature and
description in accordance with all instruments and documents executed by the
Borrower in favor of Standard Federal, whether now owing or existing or
heretofore or hereafter created or arising, regardless of whether such
obligations, covenants, representations or warranties are held to be
unenforceable, void or of no effect against the Borrower and including without
limitation, those under any loan agreement and/or promissory note executed and
delivered by Borrower to Standard Federal, and any extensions, modifications or
renewals thereof. The term "Indebtedness" shall mean all principal, interest,
attorneys' fees, commitment fees, liabilities for costs and expenses and all
other indebtedness, obligations and liabilities under and in accordance with the
terms of all instruments and documents executed by Borrower in favor of Standard
Federal, whether direct or indirect, absolute or contingent and whether now
owing or existing or heretofore or hereafter created or arising, and regardless
of whether such indebtedness, obligations or liabilities are held to be
unenforceable, void or of no effect against the Borrower, and all costs,
expenses and fees, including reasonable attorneys' fees, arising in connection
with the collection or enforcement of any or all amounts, indebtedness,
obligations and liabilities of Borrower to Standard Federal, as described above,
regardless of whether the Borrower is held to be liable for such amounts.
Guarantor acknowledges and agrees that any indebtedness of the Borrower to
Standard
Federal as evidenced by any promissory note may be extended or renewed upon
maturity at the sole discretion of Standard Federal and that the Indebtedness as
defined herein, the payment of which is hereby guaranteed, shall include,
without limitation, all indebtedness and other obligations as extended or
renewed and as may be evidenced by any renewal promissory note.
2. GUARANTY UNCONDITIONAL. This is an irrevocable, unconditional and
absolute guaranty of payment, and not of collection, and the undersigned agrees
that its liability on this Guaranty shall be immediate and Standard Federal may
have immediate recourse against the undersigned for full and immediate payment
of the Indebtedness at any time after the Indebtedness or any part thereof, has
not been paid when due (whether by acceleration or otherwise) or the Borrower
has defaulted or otherwise failed to perform when due any of its obligations,
covenants, representations or warranties to Standard Federal.
3. LIABILITY NOT CONTINGENT. The liability of Guarantor on this
Guaranty shall not be contingent upon the exercise or enforcement by Standard
Federal of whatever remedies it may have against the Borrower or others, or the
enforcement of any lien or realization upon any security or collateral Standard
Federal may at any time possess. Any one or more successive and/or concurrent
actions may be brought hereon against Guarantor either in the same action, if
any, brought against Borrower or in separate actions, as often as Standard
Federal, in it sole discretion, may deem advisable. No election to proceed in
one form of action or proceeding, or against any party, or on any obligation,
shall constitute a waiver of Standard Federal's right to proceed in any other
form of action or proceeding or against other parties unless Standard Federal
has expressly waived such right in writing. Specifically, but without limiting
the generality of the foregoing, no action or proceeding by Standard Federal
against Borrower under any document or instrument evidencing or securing the
Indebtedness shall serve to diminish the liability of Guarantor, except to the
extent Standard Federal realizes payment by such action or proceeding,
notwithstanding the effect of any such action or proceeding upon Guarantor's
right of subrogation against Borrower. Receipt by Standard Federal of payment or
payments with knowledge of the breach of any provision with respect to any of
the Indebtedness shall not, as to the Guarantor, be deemed a waiver of such
breach. All rights, powers and remedies of Standard Federal hereunder and under
any other agreement now or at any time hereafter in force between Standard
Federal and the Guarantor shall be cumulative and not alternative and shall be
in addition to all rights, powers and remedies given to Standard Federal by law.
4. LIABILITY ABSOLUTE. Guarantor agrees that its liability hereunder is
absolute and unconditional and that Standard Federal shall not be obligated
(although it may do so at its sole option) before being entitled to direct
recourse against Guarantor to take any steps, whatsoever to preserve, protect,
accept, perfect Standard Federal's interest in, foreclose upon or realize on
collateral security, if any, for the payment of the Indebtedness or any other
guaranty of the Indebtedness or in any other respect exercise any diligence
whatever in collecting or attempting to collect the Indebtedness by any means.
5. NO IMPAIRMENT OF LIABILITY. The liability of the Guarantor shall in
no way be affected or impaired by: (a) any amendment, alteration, extension,
renewal, waiver, indulgence or other modification of the Indebtedness; (b) any
settlement or compromise in connection with the Indebtedness; (c) any
subordination of payments under the Indebtedness to any other debt or claim; (d)
any substitution, exchange, release or other disposition of all or any part of
any collateral for the Indebtedness; (e) any failure, delay, neglect, act or
omission by Standard Federal to act in connection with the Indebtedness; (f) any
advances for the purpose of performing any covenant of agreement of the
Borrower, or curing any breach; (g) the filing by or
against Borrower of bankruptcy, insolvency, reorganization or other debtor's
relief afforded Borrower pursuant to the present or future provisions of the
Bankruptcy Code or any other state or federal statute or by the decision of any
court; or (h) any other matter whether similar or dissimilar to the foregoing.
The obligations of Guarantor are unconditional, notwithstanding any defect in
the genuineness, validity, regularity or enforceability of the Indebtedness or
any other circumstances whether or not referred to herein, which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
6. WAIVERS. The Guarantor hereby waives each and every defense which,
under principles of guaranty or suretyship law or otherwise, would otherwise
operate to impair or diminish the liability of Guarantor hereunder, including,
without limitation: (a) notice of acceptance of this Guaranty and of creations
of Indebtedness of Borrower to Standard Federal; (b) any subrogation to the
rights of Standard Federal against Borrower until the Indebtedness has been paid
in full; (c) presentment and demand for payment of any Indebtedness of Borrower;
(d) protest, notice or protest, and notice of dishonor or default to the
Guarantor or to any other party with respect to any of the Indebtedness; (e) all
other notices to which the Guarantor might otherwise be entitled; (f) any demand
for payment under this Guaranty; (g) any defense arising by reason of any
disability or other defense of Borrower by reason of the cessation from any
cause whatsoever of the liability of the Borrower; (h) any rights to extension,
composition or otherwise under the Bankruptcy Code or any amendments thereof, or
under any state or other federal statute; and (i) any right or claim or claim of
right to cause a marshalling of Borrower's assets. No notice to or demand on the
Guarantor shall be deemed to be a waiver of the obligation of the Guarantor or
of the right of Standard Federal to take further action without notice or demand
as provided herein; nor in any event shall any modification or waiver of the
provisions of this Guaranty be effective unless in writing nor shall any such
waiver be applicable except in the specific instance for which given.
7. WARRANTIES AND REPRESENTATIONS. Guarantor represents, warrants and
covenants to Standard Federal that, as of the date of this Guaranty: the fair
salable value of Guarantor's assets exceeds its liabilities, including the
liability undertaken pursuant to this Guaranty; any financial statements of
Guarantor furnished Standard Federal are true and correct and include in the
footnotes thereto all contingent liabilities of Guarantor: there are not now
pending any material court or administrative proceedings or undischarged
judgments against Guarantor and no federal or state tax liens have been filed or
threatened against Guarantor, nor is Guarantor in default or claimed default
under any agreement for borrowed money.
8. NOTICES. Guarantor agrees to immediately give Standard Federal
written notice of any material adverse change in its financial condition,
including but not limited to litigation commenced, tax liens filed, default
claimed under its indebtedness for borrowed money or bankruptcy proceedings
commenced by or against Guarantor. Guarantor agrees to deliver, timely to
Standard Federal, annual financial statements for the preceding fiscal year; and
at such reasonable times as Standard Federal requests to furnish its current
financial statements to Standard Federal and permit Standard Federal or its
representatives to inspect at Guarantor's offices, its financial records and
properties and make extracts therefrom in order to evaluate the financial
condition of Guarantor.
9. NO RELIANCE BY GUARANTOR. Guarantor is fully aware of the financial
condition of the Borrower. Guarantor delivers this Guaranty based solely upon
its own independent investigation and in no part upon any representation or
statement of Standard Federal with respect thereto. Guarantor is in a position
to and hereby assumes full responsibility for
obtaining any additional information concerning Borrower's financial condition
as Guarantor may deem material to its obligations hereunder; and Guarantor is
not relying upon nor expecting Standard Federal to furnish it any information in
Standard Federal's possession concerning Borrower's financial condition.
10. MISCELLANEOUS. This Guaranty shall inure to the benefit of Standard
Federal and its successors and assigns, including each and every holder or owner
of any of the indebtedness guaranteed hereby. In the event that there shall be
more than one such holder or owner, this Guaranty shall be deemed a separate
contract with each such holder and owner. In the event that any person other
than Standard Federal shall become a holder or owner of any of the Indebtedness,
each reference to Standard Federal hereunder shall be construed as if it
referred to each such holder or owner. This Guaranty shall be binding upon
Guarantor and its successors and assigns. Guarantor agrees that recourse may be
had against its earnings and separate property for all of Guarantor's
obligations under this Guaranty. This Guaranty and all rights and obligations
hereunder, including matters of construction, validity and performance, shall be
governed by the laws of the State of Michigan.
11. JOINT AND SEVERAL GUARANTY. The liability of each Guarantor
executing this Guaranty shall be joint and several and the term "Guarantor"
shall mean each and all such Guarantors.
12. GUARANTY FREELY GIVEN. THIS GUARANTY IS FREELY AND VOLUNTARILY
GIVEN TO STANDARD FEDERAL BY GUARANTOR, JOINTLY AND SEVERALLY, WITHOUT ANY
DURESS OR COERCION, AND AFTER GUARANTOR, JOINTLY AND SEVERALLY, HAS EITHER
CONSULTED WITH COUNSEL OR BEEN GIVEN AN OPPORTUNITY TO DO SO, AND GUARANTOR,
JOINTLY AND SEVERALLY, HAS CAREFULLY AND COMPLETELY READ ALL OF THE TERMS AND
PROVISIONS OF THIS GUARANTY.
IN WITNESS WHEREOF, this Guaranty was executed and delivered by the
undersigned on the date stated in the first paragraph above.
Witness: GUARANTOR:
XxXXXXX GROUP LEASING, INC.
________________________________
By:_________________________________
Its:_________________________________
