AMENDED AND RESTATED GUARANTY
Dated: April 27, 1995, but
effective as of March 15, 1995.
This Guaranty amends and restates in its entirety, a Guaranty dated October
27, 1993.
IN CONSIDERATION of and in order to induce MICHIGAN NATIONAL BANK, a
national banking association, with offices located at 00000 Xxxxxxx Xxxx,
Xxxxxxxxxx Xxxxx, Xx 00000-0000 (the "Bank"), to loan money, extend credit to,
or to purchase, accept or discount notes, instruments or other evidences of
indebtedness of or from, and generally to engage in financial accommodations and
to do business with CENTURY SUPPLY CORP., a Michigan corporation (the
"Borrower"), the undersigned, jointly and severally (hereinafter individually
and collectively referred to as the "Guarantor"), hereby covenant and agree with
the Bank as follows:
1. Guarantor unconditionally guarantees to Bank the full and prompt payment
when due of all Indebtedness (as hereinafter defined) of Borrower due and to
become due to the Bank. The Bank may have immediate recourse against Guarantor
for the full and immediate payment of the Indebtedness, or any part thereof,
which has not been paid in full at maturity (whether at fixed maturity or
maturity accelerated by reason of the Borrower's default under the terms of any
instrument governing the Indebtedness or any agreement securing the
Indebtedness).
2. The term "Indebtedness" shall mean all indebtedness, liabilities, and
obligations of Borrower to Bank, of every kind, nature and description, direct
or indirect, absolute or contingent, now existing or hereafter arising or
acquired, now due or as may hereafter become due, and whether joint, several or
joint and several, including, without limitation, the covenants and agreements
contained in this Guaranty and every promissory note, guaranty, security
agreement, loan agreement, " swap agreement" (within the meaning of the United
States Bankruptcy Code of 1978, as amended, 11 USC 101 et sea.) or other
document, instrument or agreement, now existing or hereafter executed or
delivered to the Bank, with respect to any existing or future loan, "swap"
(within the meaning of the Bankruptcy Code of 1978, as amended, 11 USC 101 et
seq.), deposit account overdraft or other financial accommodation to the
Borrower, with such interest, fees and charges as are provided for in the
evidence(s)) thereof or by applicable law, all renewals, extensions,
modifications, or refinancings thereof and all costs, expenses and reasonable
attorneys' and paralegals' fees (including without limitation the allocated
expenses of in-house attorneys and paralegals) incurred to disburse, administer,
enforce or collect any Indebtedness, to protect, maintain or liquidate any
security therefor or to defend, pay or compromise any claim or action related to
or arising therefrom (" Indebtedness" ) .
3. This is a guarantee of payment and not of collection, and Xxxxxxxxx
agrees that the Bank shall not be obligated prior to seeking recourse against or
receiving payment from Guarantor, to do any of the following (although the Bank
may do so, in whole or in part, at its sole option), the performance of which
are hereby unconditionally waived by Guarantor:
(a) Take any steps to collect the Indebtedness from Borrower or to file
any claim of any kind against Borrower; or
(b) Take any steps to enforce, accept, perfect the Bank's interest in,
foreclose upon, or realize on any collateral security for the payment
of the Indebtedness or any other guaranty of the Indebtedness; or
(c) In any other respect exercise any diligence whatever in collecting or
attempting to collect the Indebtedness by any means.
4. Guarantor's liability for payment of the Indebtedness shall be absolute
and unconditional, and nothing except final and full payment to the Bank of all
of the Indebtedness shall operate to discharge Guarantor's liability under this
Guaranty. Accordingly, Guarantor unconditionally and irrevocably waives each and
every defense which under principles of guaranty or suretyship law would
otherwise operate to impair or diminish the liability of Guarantor for the
Indebtedness. Without limiting the generality of the foregoing waiver, Xxxxxxxxx
agrees that none of the following acts, omissions, or occurrences shall diminish
or impair the liability of Guarantor in any respect (all of which acts,
omissions or occurrences may be done without notice to Guarantor):
(a) Any extension, modification, indulgence, compromise, settlement, or
variation of any of the terms of the Indebtedness;
(b) The discharge or release of any obligations of the Borrower or of any
other person now or hereafter liable on the Indebtedness by reason of
bankruptcy or insolvency laws or otherwise;
(c) The acceptance or release by the Bank of any collateral security or
any other Guaranty, or any settlement, compromise or extension with
respect to any collateral security or other Guaranty;
(d) The application or allocation by the Bank of payments, collections, or
credits on the Indebtedness or any other obligations of the Borrower
to the Bank;
(e) The creation of any new Indebtedness by Xxxxxxxx;
(f) The making of demand, or absence of demand, for payment of the
Indebtedness, or giving, or failing to give, any notice of dishonor or
protest, or any other notice.
5. Guarantor further unconditionally and irrevocably waives:
(a) All rights Guarantor may have, at law or in equity, to seek or claim
subrogation, contribution, indemnification, or any other form of
reimbursement from the Borrower by virtue of any payment(s) made to
Bank under this Guaranty or otherwise until the Indebtedness shall
have been fully and finally paid;
(b) Any acceptance of this Guaranty;
(c) Any set-offs or counterclaims against the Bank which would impair or
affect the Bank's rights against Guarantor;
(d) Any notice of the disposition of any collateral security and any right
to object to the commercial reasonableness of the disposition of any
such collateral security;
(e) Any defenses related to the validity or enforceability of any
documentation executed - by Borrower or by Guarantor in connection
with the Indebtedness.
6. Guarantor acknowledges and agrees with Bank that if Bank shall at any
time be required to return or restore to Borrower or to any trustee in
bankruptcy, any payment(s) made upon the Indebtedness, this guaranty shall
continue in full force and effect or shall be fully reinstated as the case may
be, and Guarantor's obligation to Bank under this guaranty shall be increased by
the amount of any such payment(s) upon the Indebtedness as Bank shall be obliged
to return or restore, plus interest thereon at the default rate provided in the
evidence of Indebtedness applicable to any such payment(s) from the date(s) the
payment(s) upon the Indebtedness was originally made. Guarantor agrees to
indemnify and hold Bank harmless from and against any and all costs, fees and
expenses including, without limitation, reasonable attorneys' fees and allocated
costs of in-house counsel, in connection with Bank's defending any preference or
fraudulent conveyance claim or action brought against Bank in any bankruptcy
proceeding concerning Borrower.
7. This Guaranty shall inure to the benefit of the Bank and its successors
and assigns, including every holder of any of the Indebtedness here guaranteed.
In the event that any person other than the Bank shall become a holder of any of
the Indebtedness, each reference to the Bank shall be construed to refer to each
such holder.
8. This Guaranty shall be binding upon Guarantor and Guarantor's heirs,
successors, and estate representatives, and shall continue in effect until
Guarantor delivers to the Bank at the above address, thirty (30) days advance
written notice of termination, provided that this Guaranty shall continue in
full force and effect thereafter with respect to all Indebtedness in existence
on the effective date of such termination (including all extensions and renewals
thereof and all subsequently accruing interest and other charges thereon) until
all such Indebtedness shall be fully and finally paid to Bank.
9. Guarantor represents and warrants to the Bank that all financial
statements concerning Guarantor's financial condition are true and correct in
all material respects as of the date of such statements and, if such statements
are not current, that there has been no material adverse change in the financial
condition of Guarantor from the date of such statement to the date of delivery
of this Guaranty to the Bank. Guarantor acknowledges that in accepting this
Guaranty the Bank has relied upon such financial statements and Guarantor agrees
to provide the Bank with a statement of Guarantor's current financial condition,
in form satisfactory to Bank, at least annually and within thirty (30) days
after Bank's request.
10. 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, and Guarantor consents to both jurisdiction and
venue in the Michigan courts.
11. The term "Guarantor" shall mean all and each one of the persons
executing this Guaranty agreement and their obligations to the Bank shall be
joint and several.
12. Notwithstanding anything to the contrary contained herein, the
liability of each Guarantor named below shall be UNLIMITED.
13. The performance of Guarantor's obligations under this Guaranty is
secured by a Stock Pledge Agreement dated October 27, 1993.
14. This Guaranty agreement and the terms and provisions of any
agreement(s) described in Paragraph 13 above constitute Guarantor's entire
agreement with Bank, and there are no other agreements, either written or oral,
which modify or supplement Guarantor's said agreement(s) with Bank. Guarantor
acknowledges and agrees with Bank that this Guaranty cannot be modified or
amended in any respect except by an additional writing signed by both Guarantor
and Bank.
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15. THIS GUARANTY IS FREELY AND VOLUNTARILY GIVEN TO THE BANK BY GUARANTOR
WITHOUT DURESS OR COERCION, AND AFTER GUARANTOR HAS EITHER CONSULTED WITH
COMPETENT LEGAL COUNSEL OR HAS BEEN GIVEN AN OPPORTUNITY TO DO SO, AND GUARANTOR
HAS FULLY AND CAREFULLY READ AND UNDERSTANDS ALL OF THE TERMS AND PROVISIONS OF
THIS GUARANTY.
16. GUARANTOR HEREBY RELEASES AND DISCHARGES BANK OF AND FROM ANY AND ALL
CLAIMS, HARM, INJURY, AND DAMAGE OF ANY AND EVERY KIND, KNOWN OR UNKNOWN, LEGAL
OR EQUITABLE, WHICH GUARANTOR HAS AGAINST THE BANK FROM THE DATE OF XXXXXXXX'S
FIRST CONTACT WITH BANK TO THE DATE OF THIS GUARANTY. GUARANTOR EXPRESSLY
CONFIRMS TO BANK THAT GUARANTOR HAS REVIEWED THE EFFECT OF THIS RELEASE WITH
COMPETENT LEGAL COUNSEL, OR HAS BEEN AFFORDED THE OPPORTUNITY TO DO SO. PRIOR TO
EXECUTION OF THIS GUARANTY AND ACKNOWLEDGES AND AGREES THAT XXXX IS RELYING UPON
THIS RELEASE OF CLAIMS.
17. GUARANTOR ALSO KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY WAIVES
GUARANTOR'S CONSTITUTIONAL RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM,
DISPUTE, CONFLICT, OR CONTENTION, IF ANY, AS MAY ARISE UNDER THIS GUARANTY, AND
AGREES THAT ANY LITIGATION BETWEEN THE PARTIES CONCERNING THIS GUARANTY AND ANY
COLLATERAL SECURITY DESCRIBED IN PARAGRAPH 13 HEREOF, SHALL BE HEARD BY A COURT
OF COMPETENT JURISDICTION SITTING WITHOUT A JURY. GUARANTOR HEREBY CONFIRMS TO
BANK THAT GUARANTOR HAS REVIEWED THE EFFECT OF THIS WAIVER OF JURY TRIAL WITH
COMPETENT LEGAL COUNSEL, OR HAS BEEN AFFORDED THE OPPORTUNITY TO DO SO, PRIOR TO
SIGNING THIS GUARANTY AND ACKNOWLEDGES AND AGREES THAT BANK IS RELYING UPON THIS
WAIVER.
WITNESSES: GUARANTOR:
RICHTON INTERNATIONAL CORPORATION,
a Delaware corporation
[ILLEGIBLE] /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------- -----------------------------------
Xxxxxxxxx X. Xxxxxxx
Its: Vice President - Finance
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CORPORATE BORROWING
RESOLUTION AND CERTIFICATE
I hereby certify that I am the duty elected and qualified Secretary and the
custodian of the corporate records and corporate seal of CENTURY SUPPLY CORP., a
Michigan corporation (the "Corporation"), and that following is the true and
complete text of a resolution duly adopted by the Board of Directors of this
Corporation, in accordance with all applicable laws and the Corporation's
Articles of Incorporation and Bylaws, on April 27, 1995, and that the said
resolution has not been amended or revoked and remains in full force and effect
as of April 27, 1995, the date of this Certificate:
"RESOLVED That the President, Vice President, Treasurer of this
Corporation, or any one { 1 ) of them (the "Authorized Officers"), are hereby
authorized, directed, and empowered in the name of and on behalf of this
Corporation, to negotiate and procure loans, letters of credit, and any and all
other financial accommodations from Michigan National Bank ("the Bank") as from
time to time said Authorized Officers deem necessary and upon such terms and
conditions as the Bank may require, and the Authorized Officers are further
hereby authorized and empowered, on behalf of this Corporation, to execute,
endorse, acknowledge, and deliver to the Bank such loan agreements, promissory
notes, drafts, mortgages, assignments, security agreements, letter of credit
agreements, financing statements, pledges, leases, and any and all other
documents, instruments, and agreements encumbering the real or personal property
of this Corporation as may be requested by the Bank in connection with any such
loan, letter of credit, or other financial accommodation and any amendment,
renewal, restatement, or extension thereof.
FURTHER RESOLVED that this Resolution shall remain in full force and
effect, and the Bank shall be entitled to, rely on this Resolution, until
written notice of amendment or revocation shall have been received by Bank, but
any such notice of amendment or revocation shall not affect this Corporation's
obligation and liability to the Bank under any agreement, instrument, or
document executed prior to Bank's receipt of any such amendment or revocation.
FURTHER RESOLVED that the authority hereby granted to the Authorized
Officers shall apply with equal force and effect to their successors in office,
and the Secretary of this Corporation is hereby authorized and directed to
certify to the Bank this Resolution, the names and titles of the incumbent
officers of this Corporation, and to promptly certify to the Bank any amendment
or revocation of this Resolution and any changes in the incumbent officers of
this Corporation."
I certify that following are the titles, names, and genuine signatures of
the duly qualified and elected officers of this Corporation as of the date of
this Certificate:
TITLE NAME SIGNATURE
President XXXXX X. XXXXXX /s/ XXXXX X. XXXXXX
-------------------------
Vice President XXXXXXXXX X. XXXXXXX /s/ XXXXXXXXX X. XXXXXXX
-------------------------
Secretary XXXXXXXX X. XXXXXXXXX /s/ XXXXXXXX X. XXXXXXXXX
-------------------------
Treasurer XXXXX XXXXXXXXX /s/ XXXXX XXXXXXXXX
-------------------------
I further certify to Michigan National Bank that: this Corporation is duly
organized, validly existing and in good standing under and by virtue of the laws
of the above stated State of incorporation; there are no provisions in the
Articles of Incorporation or Bylaws of this Corporation, nor is the Corporation
a party to any agreement, judgment, or order, which restricts or limits in any
way the authority of the Board of Directors to adopt the foregoing Resolutions
or which require approval of the foregoing Resolutions by the vote or consent of
the Corporation's shareholders or by any other person or entity; the Corporation
has full corporate power to own its property and to carry on its business as now
being conducted; there are no proceedings for dissolution, liquidation,
consolidation, or merger instituted by or against this Corporation as of the
date hereof.
IN WITNESS WHEREOF I have signed my name as Secretary of the Corporation
and have affixed the seal of the Corporation on this 27th day of April, 1995.
/s/ Xxxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxxxxx, Secretary
(Corporate Seal)
Attest:
/s/ Xxxxx X. Xxxxxx
----------------------------------
(Signature of Corporation Director other than Secretary)
Xxxxx X. Xxxxxx, President
Date: April 27, 1995