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EXHIBIT 10.4
CONTINUING GUARANTY AGREEMENT
[Indebtedness of DXP Acquisition, Inc. d/b/a Strategic Acquisition, Inc. -
DXP Enterprises, Inc.]
FOR VALUE RECEIVED the undersigned (hereinafter referred to as
"Guarantor") guarantees unconditionally the full and prompt payment to FLEET
CAPITAL CORPORATION ("Lender"), at Lender's office in Dallas County, Texas,
upon demand, of the following obligations and indebtedness of DXP ACQUISITION,
INC. D/B/A STRATEGIC ACQUISITION, INC., a Nevada corporation ("Borrower"):
Any and all indebtedness and obligations, whether direct or indirect, absolute
or contingent, primary or secondary, joint or several, and all renewals,
modifications and extensions thereof for which Borrower, is now, or hereafter
may become liable or indebted to Lender, whether arising by loan agreements,
notes, drafts, acceptances, letters of credit, overdrafts, assignments,
participations, discounts or otherwise, and all interest accruing thereon
(including, without limitation, interest which would accrue but for the
commencement of a bankruptcy proceeding), fees charged in connection therewith
and reimbursable expenses incurred in connection therewith, whether by lapse of
time, acceleration of maturity, or otherwise, including such indebtedness and
obligations now or hereafter arising on account of (i) the Obligations, as
defined in that certain Loan and Security Agreement dated on or about the date
hereof, between Lender and Borrower, as renewed, extended, modified or restated
from time to time; (ii) any document executed in connection with or as security
for payment of the Obligations or any renewal, extension, or modification
thereof; and (iii) all costs, attorneys' fees, and other expenses incurred by
Lender by reason of any default by Borrower under any of the foregoing (all of
the foregoing are hereinafter referred to as the "Obligations").
At the time Guarantor pays any sum which may become due Lender under the
terms of this Guaranty, written notice of such payment shall be delivered to
Lender by Guarantor, and in the absence of such notice, any sum received by
Lender on account of any of the Obligations shall be conclusively deemed paid
by Borrower. All sums paid Lender by Guarantor may be applied by Lender at its
discretion upon any of the Obligations. To further secure payment of the
Obligations, Guarantor grants to Lender, in addition to all other contractual,
legal, and equitable rights of Lender, the right to offset against any account,
certificate of deposit, or other funds of Guarantor in the possession of or
under the control of Lender.
Guarantor hereby waives notice of acceptance of this Guaranty and all
other notices in connection herewith or in connection with the Obligations,
including without limitation, notice of intent to accelerate and notice of
acceleration, and waives diligence, presentment, demand, protest, and suit on
the part of Lender in the collection of any of the Obligations, and agrees that
Lender shall not be required to first endeavor to collect any of the
Obligations from Borrower, or any other party liable for payment of the
Obligations (hereinafter referred to as an "Obligated Party"), before requiring
Guarantor to pay the full amount of the Obligations. Without impairing the
rights of Lender against Guarantor, any Obligated Party or Borrower, suit may
be brought and maintained against Guarantor at the election of Lender with or
without joinder of Borrower or any Obligated Party, any right to any such
joinder being hereby waived by Guarantor.
Guarantor represents to Lender it is receiving a direct and/or indirect
benefit as a result of this Guaranty and the Obligations; represents to Lender
that after giving effect to this Guaranty and the contingent obligations
evidenced hereby it is, and will be, solvent; acknowledges that this Guaranty
is operative and binding as to it without reference to whether it is signed by
a person under any legal
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disability; acknowledges that its liability hereunder shall be cumulative and
in addition to any other liability or obligation to Lender, whether the same is
incurred through the execution of a note, a similar guaranty, through
endorsement, or otherwise; and acknowledges that neither Lender nor any
officer, employee, agent, attorney or other representative of Lender has made
any representation, warranty or statement to Guarantor to induce it to execute
this Guaranty.
Guarantor hereby agrees that, except as hereinafter provided, its
obligations under this Guaranty shall be continuing, absolute and
unconditional, irrespective of (i) the validity or enforceability of the
Obligations or of any promissory note or other document evidencing all or any
part of the Obligations, (ii) the absence of any attempt to collect the
Obligations from Borrower or any other Obligated Party or other action to
enforce the same, (iii) the waiver or amendment by Lender with respect to any
provision of any instrument evidencing the Obligations, or any part thereof, or
any other agreement now or hereafter executed by Borrower and delivered to
Lender, (iv) failure by Lender to take any steps to perfect and maintain its
security interest in, or to preserve its rights to, any security or collateral
for the Obligations, (v) the surrender, release, exchange, or alteration by
Lender of any security or collateral for the Obligations, (vi) Lender's
election, in any proceeding instituted under Chapter 11 of Title 11 of the
United States Code (11 U.S.C Section 101 et seq.) (the "Bankruptcy Code"), of
the application of Section 1111(b)(2) of the Bankruptcy Code, (vii) any
borrowing or grant of a security interest by Borrower, as debtor-in-possession,
under Section 364 of the Bankruptcy Code, (viii) the disallowance of all or any
portion of Lender's claim(s) for repayment of the Obligations under Section 502
of the Bankruptcy Code, or (ix) any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
No release, waiver, or discharge of Borrower or any Obligated Party from
liability for payment of any of the Obligations nor any renewal,
supplementation, modification, rearrangement or acceleration of any of the
Obligations, nor any amendment of any document evidencing any of the
Obligations, either express or implied, shall relieve Guarantor from liability
for payment of the full amount of the Obligations then or thereafter
outstanding; and Guarantor will immediately pay all Obligations to Lender or
other person entitled thereto, regardless of any defense (other than payment),
right of set-off, or counterclaim which Borrower or any Obligated Party may
have or assert, and regardless of whether Lender or any other party shall have
taken any steps to enforce any rights against Borrower, any Obligated Party, or
any other party to collect such sum, and regardless of any other condition or
contingency, including, without limitation, any neglect, delay, or omission of
Lender. Lender is hereby authorized, without notice or demand and without
affecting the liability of Guarantor, to, from time to time: (i) accept partial
payments on the Obligations; (ii) take and hold security or collateral for the
payment of this Guaranty or any other guarantees of the Obligations, and
exchange, enforce, waive and release any such security or collateral; and (iii)
apply such security or collateral therefor in any manner, without affecting or
impairing the obligations of Guarantor hereunder.
Notwithstanding anything to the contrary contained herein, Guarantor
shall not have any right, claim or action, now or hereafter, against Borrower
or any other Obligated Party arising out of or in connection with this Guaranty
or any other document evidencing or securing the Obligations, including,
without limitation, any right or claim of subrogation, contribution,
reimbursement, exoneration, or indemnity, all such rights and claims being
hereby expressly and absolutely waived.
Guarantor is familiar with, and has independently reviewed the financial
condition of, Borrower and hereby assumes responsibility for keeping itself
informed of the financial condition of Borrower, and any and all endorsers
and/or other guarantors of any instrument or document evidencing all or any
part of the Obligations and of all other circumstances bearing upon the risk of
nonpayment of the Obligations or
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any part thereof that diligent inquiry would reveal. Guarantor hereby agrees
that Lender shall have no duty to advise Guarantor of information known to
Lender regarding such condition or any such circumstances. Guarantor is not
relying on the financial condition of Borrower or the value of any collateral
for the Obligations as an inducement to enter into this Guaranty. If Lender,
in its sole discretion, undertakes at any time or from time to time to provide
any such information to Guarantor, Lender shall be under no obligation (i) to
undertake any investigation not a part of its regular business routine, (ii) to
disclose any information which, pursuant to accepted or reasonable commercial
finance practices, Lender wishes to maintain confidential, or (iii) to make any
other or future disclosures of such information or any other information to
Guarantor.
Guarantor consents and agrees that Lender shall be under no obligation
to marshal any assets in favor of Guarantor or against or in payment of any or
all of the Obligations. Guarantor further agrees that, to the extent that
Borrower makes a payment or payments to Lender, or Lender receives any proceeds
of collateral, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to Borrower, any of their respective estates, trustees,
receivers or any other party, including, without limitation, Guarantor, under
any bankruptcy law, state or federal law, common law or equitable cause, then
to the extent of such payment or repayment, the Obligations 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, and this Guaranty, if previously
terminated, shall be reinstated for the benefit of Lender.
Lender may assign its rights hereunder to any holder of the Obligations,
in whole or in part, and upon any such assignment all the terms and provisions
of this Guaranty shall inure to the benefit of such assignee, to the extent so
assigned.
Lender is relying and is entitled to rely upon each and all of the
provisions of this Guaranty; and, accordingly, if any provision of this
Guaranty should be held to be invalid or ineffective, then all other provisions
shall continue in full force and effect notwithstanding.
Any and all notices, requests and demands to or upon Guarantor to be
effective shall be in writing, and shall be sent by certified or registered
mail, return receipt requested, personal receipt against delivery, or by
telegraph or telex and, unless otherwise expressly provided herein, shall be
deemed to have been validly served, given or delivered when delivered against
receipt or three business days after deposit in the mail, postage prepaid, or,
in the case of telegraphic notice, when delivered to the telegraph company, or,
in the case of telex notice, when sent, answerback received, addressed to the
address set forth opposite Guarantor's signature below.
It is the intention of Borrower, Guarantor and Lender to conform
strictly to applicable usury laws. Accordingly, no agreements, conditions,
provisions or stipulations contained in this Guaranty or any other instrument,
document or agreement between Guarantor or Borrower and Lender or default of
Guarantor or Borrower, or the exercise by Lender of the right to accelerate the
payment of the maturity of principal and interest, or to exercise any option
whatsoever contained in this Guaranty or any other agreement between Guarantor
or Borrower and Lender, or the arising of any contingency whatsoever, shall
entitle Lender to charge or collect, in any event, interest exceeding the
maximum rate of interest permitted by applicable state or federal law in effect
from time to time hereafter (the "Maximum Legal Rate") and in no event shall
Guarantor be obligated to pay interest exceeding such Maximum Legal Rate and
all agreements, conditions or stipulations, if any, which may in any event or
contingency whatsoever operate to bind, obligate or compel Guarantor to pay a
rate of interest exceeding the Maximum Legal
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Rate, shall be without binding force or effect, at law or in equity, to the
extent only of the excess of interest over such Maximum Legal Rate. In the
event any interest is charged or collected in excess of the Maximum Legal Rate
("Excess"), Guarantor acknowledges and stipulates that any such charge or
collection shall be the result of an accident and bona fide error, and such
Excess shall be, first, applied to reduce the Obligations; and second, returned
to Guarantor, it being the intention of the parties hereto not to enter at any
time into a usurious or otherwise illegal relationship. Guarantor recognizes
that, with fluctuations in the applicable rate on the Obligations and the
Maximum Legal Rate, such an unintentional result could inadvertently occur. By
the execution of this Guaranty, Guarantor covenants that Guarantor shall not
seek or pursue any other remedy, legal or equitable, against Lender, based in
whole or in part upon the contracting, charging or receiving of any interest in
excess of the maximum authorized by applicable law.
If any sum due Lender by Guarantor hereunder is placed in the hands of
an attorney for collection, or is collected through probate, bankruptcy, or
other court proceeding, then Guarantor promises to pay Lender all reasonable
costs, attorneys' fees, and other expenses incurred by Lender pursuant to such
collection efforts.
THIS GUARANTY HAS BEEN NEGOTIATED AND SHALL BE DEEMED TO HAVE BEEN MADE
IN THE STATE OF TEXAS. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS AND NOT THE LAWS OF
CONFLICTS OF THE STATE OF TEXAS. AS PART OF THE CONSIDERATION FOR NEW VALUE
AND BENEFIT THIS DAY RECEIVED BY GUARANTOR, GUARANTOR HEREBY CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN DALLAS COUNTY OF THE
STATE OF TEXAS AND WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND
CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY CERTIFIED OR REGISTERED
MAIL DIRECTED TO GUARANTOR AT THE ADDRESS STATED HEREIN AND SERVICE SO MADE
SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF. GUARANTOR WAIVES
ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED AGAINST IT AS
PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE.
EXCEPT AS OTHERWISE PROVIDED FOR IN THIS GUARANTY, GUARANTOR WAIVES THE
RIGHT TO TRIAL BY JURY (WHICH LENDER HEREBY ALSO WAIVES) IN ANY ACTION, SUIT,
PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS
GUARANTY OR THE OBLIGATIONS.
THIS WRITTEN GUARANTY, TOGETHER WITH ALL OTHER INSTRUMENTS, AGREEMENTS
AND CERTIFICATES EXECUTED BY THE PARTIES IN CONNECTION WITH THE OBLIGATIONS OR
WITH REFERENCE HERETO OR THERETO, REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
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Executed on June 16, 1997, but effective for all purposes as of
June 16, 1997.
DXP ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Chairman & CEO
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Address:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CEO
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ACKNOWLEDGEMENT
STATE OF TEXAS )
)
COUNTY OF ▇▇▇▇▇▇ )
On this 16th day of June, 1997, before me appeared
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who is personally known to me to be the same person
who executed this Guaranty on behalf of DXP Enterprises, Inc.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Notary Public for the State of Texas
My Commission Expires:
6/24/2000
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Printed Name of Notary
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