Exhibit 10.4(k)
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COMMERCIAL GUARANTY
Borrower: AMERICAN FIRE RETARDANT CORPORATION TIN: 00-0000000
000 XXXXX XXXX
XXXXXXXXX, XX 00000
Lender: ST. XXXXXX BANK & TRUST COMPANY TIN: 000000000
Lafayette Office
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Guarantor: XXXXXX X. XXXXX
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
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AMOUNT OF GUARANTY. This is a guaranty of payment of the Note, including without
limitation the principal Note amount of One Hundred Seventy Two Thousand Seven
Hundred Twenty Five & 73/100 Dollars (U.S. $172,726.73).
DEFINITIONS. The following terms shall have the following meanings when used In
this Agreement:
Agreement. The word "Agreement" means this Guaranty Agreement as this
Agreement may be amended or modified from time to time.
Borrower. The word "Borrower" means individually, collectively and
interchangably AMERICAN FIRE RETARDANT CORPORATION.
Guarantor. The word "Guarantor" means Individually, collectively and
Interchangeably XXXXXX X. XXXXX and all other persons guaranteeing payment
and satisfaction of Borrower's Indebtedness as hereinafter defined.
Indebtedness. 'The word "Indebtedness" means Borrower's Indebtedness and
obligations in favor of Lender under the Note, and all Interest, costs,
expenses and attorneys' fees and other fees and charges relating thereto,
and all amendments thereto and/or substitutions therefor, and any and all
renewals, extensions and/or refinancings thereof.
Lender. The word "Lender" means ST. XXXXXX BANK & TRUST COMPANY, XXXXXXXX
STREET BRANCH, LAFAYETTE TIN: 00-0000000, its successors and assigns, and
any subsequent holder or holders of Borrower's indebtedness.
Note. The word "Note" means the promissory note or credit agreement dated
August 18, 1998, in the original principal amount of $172,725.73 from
Borrower to Lender, together with all renewals of, extensions of,
modifications of, refinancings of, consolidations of, and substitutions for
the promissory note or agreement.
GUARANTEE OF BORROWER'S INDEBTEDNESS. Guarantor hereby absolutely and
unconditionally agrees to, and by these presents does hereby, guarantee the
prompt and punctual payment, performance and satisfaction of Borrower's
Indebtedness in favor of Lender.
JOINT, SEVERAL AND SOLIDARY LIABILITY. Guarantor's obligations and liability
under this Agreement shall be on a "solidary" or "Joint and several" basis along
with Borrower to the same degree and extent as if Guarantor had been and/or,
will be a co-borrower, co-principal obligor and/or co-maker of Borrower's
indebtedness. in the event that there is more than one Guarantor under this
Agreement, or in the event that there are other guarantors, endorsers or
sureties of all or any portion of Borrower's Indebtedness, Guarantor's
obligations and liability hereunder shall further be on a "solidary" or "joint
and several" basis along with such other .guarantors, endorsers and/or sureties.
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DURATION OF GUARANTY. This Agreement and Guarantor's obligations and liability
hereunder shall remain in full force and effect until such time as Borrower's
indebtedness shall be paid, performed and satisfied in full, in principal,
interest, costs, expenses and attorneys' fees, and other fees and charges.
DEFAULT. Should any event of default occur or exist under Borrower's
indebtedness in favor of Lender, Guarantor unconditionally and absolutely agrees
to pay Lender the then unpaid amount of Borrower's Indebtedness, in principal,
interest, costs, expenses, attorneys' fees and other fees and charges, subject
to the maximum principal dollar amount limitations set forth above. Such payment
or payments shall be made at Lender's offices indicated above, immediately
following demand by Lender.
GUARANTOR'S WAIVERS. Guarantor hereby waives:
(a) Notice of Lender's acceptance of this Agreement.
(b) Presentment for payment of Borrower's Indebtedness, notice of dishonor
and of nonpayment, notice of intention to accelerate, notice of
acceleration, protest and notice of protest, collection or institution of
any suit or other action by Lender in collection thereof, including any
notice of default In payment thereof, or other notice to, or demand for
payment thereof, on any party.
(c) Any right to require Lender to notify Guarantor of any nonpayment
relating to any collateral directly or indirectly securing Borrower's
indebtedness, or notice of any action or non-action on the part of
Borrower, Lender, or any other guarantor, surety or endorser of Borrower's
indebtedness
(d) Any rights to demand or require collateral security from the Borrower
or any other person as provided under applicable Louisiana law or
otherwise.
(e) Any right to require Lender to notify Guarantor of the terms, time and
place of any public or private sale of any collateral directly or
Indirectly securing Borrower's Indebtedness.
(f) Any "one action" or "anti-deficiency" law or any other law which may
prevent Lender from bringing any action, Including a claim for deficiency,
against Guarantor, before or after Lender's commencement or completion of
any foreclosure action, or any action in lieu of foreclosure.
(g) Any election of remedies by Lender that may destroy or impair
Guarantor's subrogation rights or Guarantor's right to proceed for
reimbursement against Borrower or any other guarantor, surety or endorser
of Borrowers indebtedness, including without limitation, any loss of fights
Guarantor may suffer by reason of any law limiting, qualifying, or
discharging Borrowers indebtedness.
(h) Any disability or other defense of Borrower, or any other guarantor,
surety or endorser, or any other person. or by reason of the cessation from
any cause whatsoever, other than payment in full of Borrower's
indebtedness.
(i) Any statute of limitations or prescriptive period, if at the time an
action or suit brought by Lender against Guarantor is commenced, there is
any outstanding indebtedness of Borrower to Lender which is barred by any
applicable statute of limitations or prescriptive period.
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Guarantor warrants and agrees that each of the waivers set forth above is made
with Guarantor's full knowledge of its significance and consequences, and that,
under the circumstances, such waivers are reasonable and not contrary to public
policy or law. If any such waiver is determined to be contrary to any applicable
law or public policy, such waiver shall be effective only to the extent
permitted by law.
GUARANTOR'S SUBORDINATION OF RIGHTS. In the event that Guarantor should for any
reason (a) advance or lend monies to Borrower, whether or not such funds are
used by Borrower to make payment(s) under Borrower's Indebtedness, and/or (b)
make any payment(s) to Lender or others for and on behalf of Borrower under
Borrower's Indebtedness, and/or (c) make any payment to Lender In total or
partial satisfaction of Guarantor's obligations and liabilities under this
Agreement, and/or (d) It any of Guarantor's property Is used to pay or satisfy
any of Borrower's Indebtedness, Guarantor hereby agrees that any and all rights
that Guarantor may have or acquire to collect from or to be reimbursed by
Borrower (or from or by any other guarantor, endorser or surety of Borrower's
Indebtedness), whether Guarantor's rights of collection or reimbursement arise
by way of subrogation to the rights of Lender or otherwise, shall In all
respects, whether or not Borrower Is presently or subsequently becomes
Insolvent, be subordinate, inferior and junior to the rights of Lender to
collect and enforce payment, performance and satisfaction of Borrower's then
remaining Indebtedness, until such time as Borrower's Indebtedness Is fully paid
and satisfied. In the event of Borrower's Insolvency or consequent liquidation
of Borrower's assets, through bankruptcy, by an assignment for the benefit of
creditors, by voluntary liquidation, or otherwise, the assets of Borrower
applicable to the payment of claims of both Lender and Guarantor shall be paid
to Lender and shall be first applied by Lender to Borrower's then remaining
indebtedness. Guarantor hereby assigns to Lender all claims which it may have or
acquire against Borrower or any assignee or trustee of Borrower in bankruptcy;
provided that, such assignment shall be effective only for the purpose of
assuring to Lender full payment of Borrower's Indebtedness guaranteed under this
Agreement.
If now or hereafter (a) Borrower shall be or become Insolvent, and (b) Borrowers
Indebtedness shall not at all times until paid be fully secured by collateral
pledged by Borrower, Guarantor hereby forever waives and relinquishes In favor
of Lender and Borrower, and their respective successors, any claim or right to
payment Guarantor may now have or hereafter have or acquire against Borrower, by
subrogation or otherwise, so that at no time shall Guarantor be or become a
"creditor" of Borrower within the meaning of 11 U.S.C. section 547(b), or any
successor provision of the Federal bankruptcy laws.
GUARANTOR'S RECEIPT OF PAYMENTS. Guarantor further agrees to refrain from
attempting to collect and/or enforce any of Guarantor's collection and/or
reimbursement rights against Borrower (or against any other guarantor, surety or
endorser of Borrower's Indebtedness), arising by way of subrogation or
otherwise, until such time as all of Borrower's then remaining Indebtedness in
favor of Lender is fully paid and satisfied. In the event that Guarantor should
for any reason whatsoever receive any payments(s) from borrower (or any other
guarantor, surety or endorser of Borrower's Indebtedness) that Borrower (or such
a third party) may owe to Guarantor for any of the reasons stated above,
Guarantor agrees to accept such payment(s) In trust for and on behalf of Lender,
advising Borrower (or the third party payee) of such fact. Guarantor further
unconditionally agrees to immediately deliver such funds to Lender, with such
funds being held by Guarantor over any interim period, in trust for Lender. in
the event that Guarantor should for any reason whatsoever receive any such funds
from Borrower (or any third party), and Guarantor should deposit such funds in
one or more of Guarantor's deposit accounts, no matter where located, Lender
shall have the right to attach any and all of Guarantor's deposit accounts in
which such funds were deposited, whether or not such funds were commingled with
other monies of Guarantor, and whether or not such funds then remain on deposit
In such an account or accounts. To this end and to secure Guarantor's
obligations under this Agreement, Guarantor collaterally assigns and pledges to
Lender, and grants to Lender a continuing security Interest In, any and all of
Guarantor's present and future rights, title and Interest In and to all monies
that Guarantor may now and/or In the future maintain on deposit with banks,
savings and loan associations and other entities (other than tax deferred
accounts with Lender), In which Guarantor may at any time deposit any such funds
that may be received from Borrower (or any other guarantor, endorser or surety
of Borrower's Indebtedness) In favor of Lender.
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DEPOSIT ACCOUNTS. As collateral security for repayment of Guarantor's
obligations hereunder and under any additional guaranties previously granted or
to be granted by Guarantor in the future, and additionally as collateral
security for any present and future indebtedness of Guarantor in favor of Lender
(with the exception of any indebtedness under a consumer credit card account),
Guarantor is granting Lender a continuing security interest in any and all funds
that Guarantor may now and in the future have on deposit with Lender or in
certificates of deposit or other deposit accounts as to which Guarantor Is an
account holder (with the exception of XXX, pension, and other tax-deferred
deposits). Guarantor further agrees that Lender may at any lime apply any funds
that Guarantor may have on deposit with Lender or In certificates of deposit or
other deposit. accounts as to which Guarantor is an account holder against the
unpaid balance of any and all other present and future obligations and
Indebtedness of Guarantor to Lender, In principal, Interest, fees, costs,
expenses, and attorneys' fees.
ADDITIONAL COVENANTS. Guarantor agrees that Lender may, at its sole option, at
any time, and from time to time, without the consent of or notice to Guarantor,
or any of them, or to any other party, and without incurring any responsibility
to Guarantor or to any other party, and without impairing or releasing any of
Guarantor's obligations or liabilities under this Agreement:
(a) Make additional secured and/or unsecured loans to Borrower.
(b) Discharge, release or agree not to xxx any party (including, but not
limited to, Borrower or any other guarantor, surety, or endorser of
Borrower's Indebtedness), who is or may be liable to Lender for any of
Borrower's indebtedness.
(c) Sell, exchange, release, surrender, realize upon, or otherwise deal
with, in any manner and in any order, any collateral directly or indirectly
securing repayment of any of Borrower's indebtedness.
(d) Alter, renew, extend, accelerate, or otherwise change the manner,
place, terms and/or times of payment or other terms of Borrower's
indebtedness, or any part thereof, including any increase or decrease in
the rate or rates of interest on any of Borrower's indebtedness.
(e) Settle or compromise any of Borrower's Indebtedness.
(f) Subordinate and/or agree to subordinate the payment of all or any part
of Borrower's Indebtedness, or Lender's security rights in any collateral
directly or indirectly securing any such indebtedness, to the payment
and/or security rights of any other present and/or future creditors of
Borrower. (g) Apply any payments and/or proceeds received from Borrower or
others to other loans and/or obligations that Borrower may then owe to
Lender, whether or not Borrower's Indebtedness subject to this Agreement
then remains unpaid.
(h) Enter into, deliver, modify, amend, or waive compliance with, any
instrument or arrangement evidencing, securing or otherwise affecting, all
or any part of Borrower's Indebtedness.
NO IMPAIRMENT OF GUARANTOR'S OBLIGATIONS. No course of dealing between Lender
and Borrower (or any other guarantor, surety or endorser of Borrower's
Indebtedness), nor any failure or delay on the part of Lender to exercise any of
Lender's rights and remedies under this Agreement or any other agreement or
agreements by and between Lender and Borrower (or any other guarantor, surety or
endorser), shall have the effect of Impairing or releasing Guarantor's
obligations and liabilities to Lender, or of waiving any of Lender's rights and
remedies under this Agreement or otherwise. Any partial exercise of any rights
and remedies granted to Lender shall furthermore not constitute a waiver of any
of Lender's other rights and remedies; It being Guarantor's Intent and agreement
that Lender's rights and remedies shall be cumulative In nature. Guarantor
further agrees that, should Borrower default under any of Its Indebtedness, any
waiver or forbearance on the part of Lender to pursue Lender's available rights
and remedies shall be binding upon Lender only to the extent that Lender
specifically agrees to such waiver or forbearance In writing. A waiver or
forbearance on the part of Lender as to one event of default shall not
constitute a waiver or forbearance as to any other default.
NO RELEASE OF GUARANTOR. Guarantor's obligations and liabilities under this
Agreement shall not be released, Impaired, reduced, or otherwise affected by,
and shall continue In full force and effect notwithstanding the occurrence of
any event, Including without limitation any one or more of the following events:
(a) The death, Insolvency, bankruptcy, arrangement, adjustment,
composition, liquidation, disability, dissolution, or lack of authority
(whether corporate, partnership or trust) of Borrower (or any person acting
on Borrower's behalf), or of any other guarantor, surety or endorser of
Borrower's Indebtedness.
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(b) Any payment by Borrower, or any other party, to Lender that is held to
constitute a preferential transfer or a fraudulent conveyance under any
applicable law, or any such amounts or payment which, for any reason,
Lender Is required to refund or repay to Borrower or to any other person.
(c) Any dissolution of Borrower, or any sale, lease or transfer of all or
any part of Borrower's assets.
AUTOMATIC REINSTATEMENT. This Agreement and Guarantor's obligations and
liabilities hereunder shall continue to be effective, and/or shall automatically
and retroactively be reinstated, if a release or discharge has occurred, or if
at any time, any payment or part thereof to Lender with respect to Borrower's
indebtedness, is rescinded or must otherwise be restored by Lender pursuant to
any insolvency, bankruptcy, reorganization, receivership, or any other debt
relief granted to Borrower or to any other party to Borrower's indebtedness or
any such security therefor. in the event that Lender must rescind or restore any
payment received in total or partial satisfaction of Borrower's indebtedness,
any prior release or discharge from the terms of this Agreement given to
Guarantor shall be without effect, and this Agreement and Guarantor's
obligations and liabilities hereunder shall automatically and retroactively be
renewed and/or reinstated and shall remain in full force and effect to the same
degree and extent as if such a release or discharge had never been granted. it
is the intention of Lender and Guarantor that Guarantor's obligations and
liabilities hereunder shall not be discharged except by Guarantor's full and
complete performance and satisfaction of such obligations and liabilities; and
then only to the extent of such performance.
REPRESENTATIONS AND WARRANTIES BY GUARANTOR. Guarantor represents and warrants
that:
(a) Guarantor has the lawful power to own its properties and to engage in
its business as presently conducted. (b) Guarantor's guaranty of Borrower's
Indebtedness and Guarantor's execution, delivery and performance of this
Agreement are not in violation of any laws and will not result In a default
under any contract, agreement, or Instrument to which Guarantor Is a party,
or by which Guarantor or its property may be bound.
(c) Guarantor has agreed and consented to execute this Agreement and to
guarantee Borrower's indebtedness in favor of Lender, at Borrower's request
and not at the request of Lender.
(d) Guarantor will receive and/or has received a direct or indirect
material benefit from the transactions contemplated herein and/or arising
out of Borrower's Indebtedness.
(e) This Agreement, when executed and delivered to Lender, will constitute
a valid, legal and binding obligation of Guarantor, enforceable in
accordance with its terms.
(f) Guarantor has established adequate means of obtaining Information from
Borrower on a continuing basis regarding Borrower's financial condition.
(g) Lender has made no representations to Guarantor as to the
creditworthiness of Borrower.
ADDITIONAL OBLIGATIONS OF GUARANTOR. So long as this Agreement remains in
effect, Guarantor has not and will not, without Lender's prior written consent,
sell, lease, assign, pledge, hypothecate, encumber, transfer, or otherwise
dispose of all or substantially all of Guarantor's assets. Guarantor agrees to
keep adequately informed of any facts, events or circumstances which might in
any way affect Guarantor's risks under this Agreement. Guarantor further agrees
that Lender shall have no obligation to disclose to Guarantor any information or
material relating to Borrower or Borrower's indebtedness.
ADDITIONAL DOCUMENTS; FINANCIAL STATEMENTS. Upon the reasonable request of
Lender, Guarantor will, at any time, and from time to time, execute and deliver
to Lender any and all such financial instruments and documents, and supply such
additional information, as may be necessary or advisable in the opinion of
Lender to obtain the full benefits of this Agreement. Guarantor further agrees
to provide Lender with such financial statements and other related information
at such frequencies and in such detail as Lender may reasonably request.
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TRANSFER OF INDEBTEDNESS. This agreement is for the benefit of Lender and for
such other person or persons as may from time to time become or be the holders
of all or any part of Borrower's indebtedness. This Agreement shall be
transferrable and negotiable with the same force and effect and to the same
extent as Borrower's indebtedness may be transferrable; it being understood and
agreed to by Guarantor that, upon any transfer or assignment of all or any part
of Borrower's indebtedness, the holder of such indebtedness shall have all of
the rights and remedies granted to Lender under this Agreement. Guarantor
further agrees that, upon any transfer of all or any portion of Borrower's
indebtedness, Lender may transfer and deliver any and all collateral securing
repayment of such indebtedness (including, but not limited to, any collateral
provided by Guarantor) to the transferee of such indebtedness, and such
collateral shall secure any and all of Borrower's indebtedness in favor of such
a transferee. Guarantor additionally agrees that, after any such transfer or
assignment has taken place, Lender shall be fully discharged from any and all
liability and responsibility to Borrower and Guarantor with respect to such
collateral, and the transferee thereafter shall be vested with all the powers
and rights with respect to such collateral.
CONSENT TO PARTICIPATION. Guarantor recognizes and agrees that Lender may, from
time to time, one or more times, transfer all or any part of Borrower's
indebtedness through sales of participation interests in such indebtedness to
one or more third party lenders. Guarantor specifically agrees and consents to
all such transfers and assignments, and Guarantor further waives any subsequent
notice of such transfers and assignments as may be provided under Louisiana law.
Guarantor additionally agrees that the purchaser of a participation interest in
Borrower's indebtedness will be considered as the absolute owner of a percentage
interest of such indebtedness and that such a purchaser will have all of the
rights granted under any participation agreement governing the sale of such a
participation interest. Guarantor waives any rights of offset that Guarantor may
have against Lender and/or any purchaser of such a participation interest, and
Guarantor unconditionally agrees that either Lender or such a purchaser may
enforce Guarantor's obligations and liabilities under this Agreement,
irrespective of the failure or insolvency of Lender or any such purchaser.
NOTICES. Any notice provided in this Agreement must be in writing and will be
considered as given on the day it is delivered by hand or deposited in the U.S.
mail, postage prepaid, addressed to the person to whom the notice is to be given
at the address shown above or at such other addresses as any party may designate
to the other in writing. if there is more than one Guarantor under this
Agreement, notice to any Guarantor shall constitute notice to all Guarantors.
ADDITIONAL GUARANTIES. Guarantor recognizes and agrees that Guarantor may have
previously granted, and may in the future grant, one or more additional
guaranties of Borrower's indebtedness in favor of Lender. Should this occur, the
execution of this Agreement and any additional guaranties on the part of
Guarantor will not be construed as a cancellation of this Agreement or any of
Guarantor's additional guaranties; It being Guarantor's full intent and
agreement that all such guaranties of Borrower's Indebtedness in favor of Lender
shall remain in full force and affect and shall be cumulative in nature and
effect.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty:
Amendment. No amendment, modification, consent or waiver of any provision
of this Agreement, and no consent to any departure by Guarantor therefrom,
shall be effective unless the same shall be in writing signed by a duly
authorized officer of Lender, and then shall be effective only as to the
specific instance and for the specific purpose for which given.
Applicable Law. This Guaranty has been delivered to Lender and accepted by
Lender in the State of Louisiana. This Guaranty shall be governed by and
construed in accordance with the laws of the State of Louisiana.
Caption Headings. Caption headings of the sections of this Agreement are
for convenience purposes only and are not to be used to interpret or to
define their provisions. in this Agreement, whenever the context so
requires, the .singular includes the plural and the plural also includes
the singular.
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Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the
term hereof, such provision shall be fully severable. This Agreement shall
be construed and enforceable as if the illegal, invalid or unenforceable
provision had never comprised a part of it, and the remaining provisions of
this Agreement shall remain in full force and affect and shall not be
affected by the illegal, invalid or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of
this Agreement, a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and legal, valid and
enforceable.
Successors and Assigns Bound. Guarantors obligations and liabilities under
this Agreement shall be binding upon Guarantor's Successors, heirs,
legatees, devisees, administrators, executors and assigns.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT
THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS
GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED. NO
FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS
GUARANTY IS DATED AUGUST 18, 1998.
GUARANTOR:
/S/ Xxxxxx X. Xxxxx
-------------------------
By: Xxxxxx X. Xxxxx
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