CONTINUING CONTRACT OF GUARANTY
WHEREAS ROTHERWOOD CORPORATION, hereinafter referred
to as Debtor, has applied for credit and/or is presently indebted
or obligated to XXXX XXXXX KANSAS CITY BANK hereinafter
referred to as Bank, and
WHEREAS to induce Bank to extend credit to Debtor
and/or to presently refrain from making demand on Debtor and to
otherwise pursue Bank's legal remedies against Debtor, the
undersigned, hereinafter referred to as Guarantor, has agreed to
guaranty the credit of Debtor pursuant to and in strict
accordance with the terms and conditions hereinafter set forth.
NOW, therefore, in consideration of the sum of $1.00 to
Guarantor paid by Bank, the extension of credit to Debtor by Bank
and/or Bank's presently refraining from making demand on Debtor
and otherwise pursuing Bank's legal remedies against Debtor and
other good and valuable considerations, receipt of which is
hereby acknowledged, it is agreed as follows:
1. Guarantor does hereby for himself, his heirs, executors,
administrators, successors and assigns, unconditionally guaranty
on a continuing basis to Bank, its successors and assigns, the
prompt, faithful and full payment, when due, of any and all
loans, advances, indebtedness and obligations of any kind or
nature now or hereafter owing by Debtor to Bank, evidenced by
promissory note, or notes, negotiable or non-negotiable, drafts,
acceptances, commercial paper, letters of credit, leases,
contracts, or any other written instruments together with any and
all renewals, extensions and modifications thereof hereinafter
collectively referred to as Liabilities or, in the singular,
Liability, and whether Liabilities are unsecured or secured by
collateral pledge or in any manner.
2. Guarantor shall, upon demand, when due or matured in
accordance with the provisions of any instrument or document
executed by Debtor in connection with Liabilities, pay to Bank,
its successors and assigns, the amount of any Liability,
irrespective of the validity, regularity or enforceability of any
instrument or writing evidencing such Liability or of the
Liability itself, said payment to be made upon the maturity of
such Liability or at any earlier time by reason of Bank's power
of acceleration and if the Liability is secured, said payment
shall be made irrespective of the validity, regularity or
enforceability of any instrument or writing evidencing such
security or of the security itself and it shall not be necessary
for Bank to resort to such security before enforcing Guarantor's
liability hereunder. Demand may be made upon Guarantor for the
enforcement of the guaranty without the necessity of action at
any time by Bank against Debtor. Any action taken by Bank
against Debtor, including foreclosure of any security held by
Bank, shall in no event be considered a waiver of any rights
against Guarantor under this guaranty and Bank shall, at its sole
discretion, have the right at any time to discontinue any action
or proceedings against Debtor and require full payment by
Guarantor of Liabilities together with attorney's fees, cost of
the proceedings and court costs. Any recovery by Bank against
Debtor, whether by settlement, execution or foreclosure of
collateral, shall be credited against Guarantor's liability
hereunder, it being however agreed that a compromise and
settlement of any Liability shall, in no sense, compromise or
settle Guarantor's liability hereunder, but Guarantor shall
continue to be liable for any difference between the full amount
of Liabilities and the net proceeds of any amounts realized by
Bank from Debtor.
3. Guarantor does hereby waive presentment of any instrument,
demand for payment, protest and notice of non-payment and
Guarantor waives all rights arising out of any statute now
existing or hereafter enacted with respect to suretyship and
which may otherwise require Bank at any time to take legal action
against Debtor. Guarantor does hereby waive notice of the
acceptance of this guaranty and notice of any Liability
contracted or incurred by Debtor.
4. Bank may, without notice to Guarantor, renew, extend, modify
or otherwise change the time for payment of, or otherwise change
the terms (including the rate of interest) of any loan or
indebtedness of Debtor forming part of Liabilities and may from
time to time at its own discretion, without notice to Guarantor,
release, substitute, diminish or exchange any security or
securities, property or chose in action held by it as collateral
in connection with any Liability without in any way affecting
Guarantor's obligation hereunder.
5. Guarantor does further guarantee the liability of Debtor to
Bank in any capacity arising out of (1) the sale, negotiation or
discount with or without recourse, transfer or assignment by
Debtor to Bank of accounts receivable, commercial paper, notes,
whether negotiable or non-negotiable, leases, contracts or any
instrument, (2) any obligation or liability of Debtor to Bank
arising out of Debtor's guaranty of or liability for the
indebtedness, liability or obligations of others, (3) overdrafts
and (4) in general, in connection with any and all indebtedness,
obligations and liabilities of Debtor to Bank, not herein
otherwise described, irrespective of the kind and nature thereof
or whether in existence upon the date of these presents or at any
time hereafter all of which liabilities of Debtor to Bank shall
also be Liabilities, or, in the singular, Liability as
hereinbefore or hereinafter set forth.
6. This guaranty shall continue in full force and be binding
upon Guarantor and Bank may continue to act in reliance hereon
until the actual receipt by an officer of Bank of written notice
from Guarantor not to give further accommodation hereunder.
However, notwithstanding receipt of such notice by Bank, this
guaranty shall so continue in full force and effect with respect
to any loans or advances Bank has committed or is otherwise
obligated to make to or for the account of Debtor arising out of
a commitment or obligation existing at the time of receipt of
such notice of termination. Furthermore, Bank may renew, extend
or otherwise modify any loan or indebtedness of Debtor forming
part of Liabilities after receipt of such notice of termination
without affecting the obligations of Guarantor hereunder (except
to the extent that the principal amount of any indebtedness is
increased, but in such an instance the obligations of Guarantor
hereunder shall remain in full force and effect except for the
increase amount of the Liabilities).
7. Guarantor does hereby give and grant unto Bank, as security
for Guarantor's liability and obligations hereunder, a lien, with
full right of setoff, upon any deposit or other account of
Guarantor with Bank and all securities and property of any kind
and of whatsoever nature belonging to Guarantor or in which
Guarantor has any right, title or interest and which, for any
purpose, have come into the possession, custody or control of
Bank.
8. The word Guarantor, as used herein, shall designate one or
more Guarantors. In the event that more than one Guarantor is a
party to these presents, the liability of each Guarantor shall be
joint and several, each Guarantor to be fully liable hereunder
irrespective of the death, incapacity or other disqualification
of the other Guarantor or Guarantors and Bank may proceed against
one or less than all of the Guarantors, such proceeding not being
deemed an election, and Bank may, at any time thereafter in the
event full payment has not been realized, proceed against the
other Guarantor or Guarantors. Bank may release any Guarantor
hereon or any other surety of Debtor without affecting the
liability hereunder of any Guarantor not released by Bank.
9. Guarantor will not exercise any rights which Guarantor may
acquire by way of subrogation under this guaranty, by any payment
made hereunder or otherwise, until all of the Liabilities shall
have been paid in full and Bank shall be under no duty to extend
credit to or for the benefit of Debtor. If any amount shall be
paid to Guarantor on account of such subrogation rights at any
time when all of the Liabilities shall not have been paid in
full, such amount(s) shall be held in trust for the sole benefit
of Bank and shall forthwith be paid to Bank to be applied to the
Liabilities, whether matured or unmatured, in accordance with the
terms of any documents, instruments or agreements given by Debtor
to the Bank evidencing or relating to the Liabilities.
10. This guaranty shall continue to be effective or be
reinstated, as the case may be, if (i) at any time any payment of
any of the Liabilities is rescinded or must otherwise be returned
by the Bank upon the insolvency, bankruptcy or reorganization of
the Debtor or otherwise, all as though such payment had not been
made, or (ii) this guaranty is released or the liability of
Guarantor hereunder is reduced in consideration of a payment of
money or transfer of property or grant of a security interest by
the Guarantor or any other person or entity and such payment,
transfer or grant is rescinded or must otherwise be returned by
the Bank upon the insolvency, bankruptcy or reorganization of
such person or entity or otherwise, all as though such payment,
transfer or grant had not been made.
11. If any provision of this guaranty or the application thereof
in any jurisdiction and/or to any person, entity or circumstance
shall be invalid or unenforceable to any extent, the remainder of
this guaranty and the application of such provisions in such
jurisdiction and/or to other persons, entities or circumstances
shall not be affected thereby and shall be enforced to the
greatest extent permitted by law in any other jurisdiction and/or
to any other persons, entities or circumstances. This Continuing
contract of guaranty is a KANSAS contract and shall be
governed by and construed according to the laws of the State of
KANSAS .
12. If Bank presently holds one or more guaranties from
Guarantor or hereafter receives additional guaranties from
Guarantor, the rights of Bank under all guaranties shall be
cumulative. This guaranty shall not affect or invalidate any
such other guaranties. The liability of the Guarantor will be
the aggregate liability of Guarantor under the terms of this
guaranty and any other unterminated guaranties.
13. The liability of Guarantor in all cases shall extend to and
shall also include all reasonable costs of collection, including
but not limited to, court costs, attorneys' fees and collection
agency fees, except to the extent prohibited by Kansas Statute.
IN WITNESS THEREOF, this instrument has been duly executed by the
undersigned this 27TH day of AUGUST, 1996.
XXXXXX
By: /s/ Xxxx Xxxxx
WITNESS Xxxx Xxxxx, secretary
Federal IS #
