GUARANTY
GUARANTY dated as of April 30, 1996 by Xxxxxx X. Xxxxxxxxxxx
("Guarantor") for the benefit of The Xxxxxxx X. Reason Agreement of
Trust dated April 9, 1979 ("Seller").
R E C I T A L S:
A. Seller, has entered into certain agreements for the sale and
purchase of certain real estate and the stock of Monroe Engineering Products,
Inc. ("Monroe"), all of even date herewith (the "Agreements").
B. In order to induce Seller to consummate the transactions
contemplated by the Agreements, the Guarantor has agreed to guaranty the payment
of indebtedness secured by a Land Contract of even date, herewith a copy of
which is attached (the "Land Contract").
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, Guarantor hereby agrees as
follows:
1. Guaranty of Payment. Guarantor hereby unconditionally and
irrevocably guaranties to Seller the punctual payment and performance when due,
whether at stated maturity or by acceleration or otherwise, of the Land Contract
and any and all sums due thereunder together with interest thereon (all of the
foregoing guaranteed amounts are referred to hereafter as the "Guaranteed
Obligations"). Guarantor agrees that this Guaranty is a present and continuing
guaranty of payment and not of collectibility, and that Seller shall not be
required to prosecute collection, enforcement or other remedies against Monroe
before calling on such Guarantor for payment. Guarantor agrees that if, for any
reason, Monroe shall fail or be unable to pay, punctually and fully, the amounts
owing on the Guaranteed Obligation, such Guarantor shall pay such Guaranteed
Obligations to Seller in full within five (5) days after receiving written
demand therefor from Seller. Guarantor agrees that one or more successive
actions may be brought against Guarantor, as often as Seller deems advisable,
until all of the Guaranteed Obligations are paid and performed in full.
2. Continuing Guaranty. Guarantor agrees that the obligations of such
Guarantor pursuant to Paragraph 1 above shall be a primary obligation of such
Guarantor, shall not be subject to any counterclaim, set-off, abatement,
deferment or defense based upon any claim that such Guarantor may have against
Seller, Monroe or any other person or entity, and shall remain in full force and
effect without regard to, and shall not be released, discharged or affected in
any way by any circumstance or condition (whether or not such Guarantor shall
have any knowledge thereof), including
without limitation:
(a) any lack of validity of enforceability of the Land
Contract or the Agreements;
(b) any termination, amendment, modification or other change
in the Land Contract or any of the Agreements;
(c) any failure, omission or delay on the part of Monroe, the
Guarantor or Seller to conform or comply with any of the terms of the
Land Contract or the Agreements, or any failure of the Seller to give
notice of any default thereunder;
(d) any waiver, compromise, release, settlement or extension
of time of payment or performance or observance of any of the
obligations or agreements contained in the Land Contract or the
Agreements;
(e) any action or inaction by Seller under or in respect of
the Land Contract or the Agreements, any failure, lack of diligence,
omission or delay on the part of Seller to enforce, assert or exercise
any right, power or remedy conferred on them in the Land Contract or
the Agreements, or any other action or inaction on the part of Seller;
(f) any voluntary or involuntary bankruptcy, insolvency,
reorganization, arrangement, readjustment, assignment for the benefit
of creditors, composition, receivership, liquidation, marshalling of
assets and liabilities or similar events or proceedings with respect to
Monroe or of the Guarantor, as applicable, or any of their respective
property or creditors, or any action taken by any trustee or receiver
or by any court in such proceeding;
(g) any merger or consolidation of Monroe, or any sale, lease
or transfer of any of the assets of Monroe or of the Guarantor;
(h) any change in the ownership of the capital stock of Monroe
or any change in the relationship between Monroe and the Guarantor, or
any termination of any such relationship;
(i) to the extent permitted by law, any release or discharge
by operation of law of Monroe or the Guarantor from any obligation or
agreement contained in the Land Contract or the Agreements; or
(j) to the extent permitted by law, any other occurrence,
circumstance, happening or event, whether similar or dissimilar to the
foregoing and whether foreseen or
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unforeseen, which otherwise might constitute a legal or equitable
defense or discharge of the liabilities or a guarantor or surety or
which otherwise might limit recourse against Monroe or the Guarantor.
3. Waivers. Guarantor unconditionally waives, to the extent permitted
by law, (i) notice of any of the matters referred to in Paragraph 2 above, (ii)
all notices which may be required by statute, rule of law or otherwise, now or
hereafter in effect, to preserve intact any rights against such Guarantor,
including, without limitation, any demand, presentment and protest, proof of
notice of non-payment under the Land Contract or the Agreements and notice of
any default or any failure on the part of such Guarantor or Monroe to perform or
comply with any covenant, agreement, term or condition of the Land Contract or
the Agreements, (iii) any right to the enforcement, assertion or exercise
against such Guarantor or Monroe of any right or remedy conferred under the Land
Contract or the Agreements, (iv) any requirement of diligence, and (v) any
requirement to exhaust any remedies or to mitigate the damages resulting from
any default under the Land Contract or the Agreements.
4. Subordination. Guarantor agrees that any and all present and future
debts and obligations of Monroe to such Guarantor are hereby subordinated to the
claims of Seller and are hereby assigned by such Guarantor to Seller as security
for the repayment and performance of the Land Contract.
5. Subrogation. Guarantor agrees that notwithstanding any payment or
performance by such Guarantor pursuant to this Guaranty, for so long as any of
the Guaranteed Obligations remain unperformed or unpaid, the Guarantor shall not
be entitled to enforce any right to be subrogated to any rights of Seller and
Guarantor waives and releases all rights and claims to indemnification,
reimbursement and contribution such Guarantor now has or at any time hereafter
may have against Monroe until the Land Contract and Agreements are performed and
paid in full.
6. Reinstatement. The obligations of Guarantor pursuant to this
Guaranty shall continue to be effective or automatically be reinstated, as the
case may be, if at any time payment of any of the Guaranteed Obligations is
rescinded or otherwise must be restored or returned by Monroe's insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Guarantor or
Monroe or for any other reason, all as though such payment had not been made.
7. Successors and assigns. This Guaranty shall inure to the benefit of
Seller, and his successors and assigns. This Guaranty shall be binding on
Guarantor, and his respective successors and assigns, and shall continue in full
force and effect until the Land
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Contract is paid and performed in full.
8. No Waiver of Rights. es or a nor any failure on the part of Seller
to exercise any right, power or privilege under this Guaranty or the Land
Contract or Agreements shall operate as a waiver thereof, and no single or
partial exercise of any right, power or privilege shall preclude any other or
further exercise thereof or the exercise of any other power or right, or be
deemed to establish a custom or course of dealing or performance between the
parties hereto. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law. No notice to or demand on
the Guarantor in any case shall entitle such Guarantor to any other or further
notice or demand in the same, similar or other circumstance.
9. Modification. The terms of this Guaranty may be waived, discharged
or terminated only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. No
amendment, modification, waiver or other change of any of the terms of this
Guaranty shall be effective without the prior written consent of Seller.
10. Costs and Expenses. Guarantor agrees to pay on demand all costs and
expenses incurred by or on behalf of Seller (including, without limitation,
reasonable attorneys' fees and expenses) in enforcing the obligations of the
Guarantor under this Guaranty.
11. Notices. All notices required hereunder shall be proper if made in
compliance with Section 12.2 of the Agreement.
12. Applicable Law. This Guaranty shall be governed as to validity,
interpretation, effect and in all other respects by laws and decisions of the
State of Michigan.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date
first above written.
WITNESSES: GUARANTOR:
/s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxx
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