EXHIBIT 10.10
GUARANTY
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THIS GUARANTY, effective the 22nd day of December, 1992, is executed and
delivered by American Builders & Contractors Supply Co., Inc., a Texas
corporation (hereinafter referred to as "Guarantor").
WITNESSETH:
WHEREAS, Transohio Saving Bank, a national banking association ("Lender")
has agreed to make a loan to KENNETH A. HENDRICKS ("Borrower") in the original
principal sum of ONE MILLION SIX HUNDRED FORTY THOUSAND and 00/100 DOLLARS
($1,640,000.00) evidenced by a Promissory Note (the "Note"); and
WHEREAS, the Note is secured by a Open-Ended Mortgage, Assignment of Rents
and Security Agreement dated July 29, 1988 ("Mortgage"), encumbering certain
real property in Palm Beach County, Florida, more particularly described in
Exhibit "A" attached hereto and made a part hereof (the "Property") and other
property described in the Mortgage; and
WHEREAS, Borrower is the President of Guarantor and Guarantor agrees to
execute this Guaranty to induce Lender to permit Borrower to transfer the
Property to Guarantor.
NOW, THEREFORE, in consideration of Lender making the loan, and accepting
the Note, Mortgage and related documents, which it is acknowledged and agreed
that Lender is doing in full reliance hereon, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Guarantor hereby irrevocably covenants, warrants and agrees as follows:
1. That notwithstanding any provision in the Note or Mortgage, Grantor
hereby unconditionally and irrevocably guarantees to Lender the full payment
when due, whether by acceleration or otherwise, of any and all Liabilities, as
described herein of Borrower to Lender. The term "Liability" or "Liabilities"
as used herein shall mean any and all liabilities and obligations of Borrower to
Lender as evidenced by the Note and any and all indemnifications set forth in
the Note or Mortgage.
2. Lender may at any time and from time to time (whether before or after
revocation or termination of this Guaranty) without notice to Guarantor (except
as required by law), without incurring responsibility to Guarantor without
impairing releasing or otherwise affecting the obligations of Guarantor in whole
or in part and without the endorsement or execution by Guarantor of any
additional consent, waiver or guaranty, (a) change the manner, place or terms of
payment, and change or extend the time of or renew or alter, any Liability or
installment thereof, or any security therefore and the guaranty made herein
shall apply to the Liabilities as so changed, extended, renewed or altered; (b)
sell, exchange, release, surrender, realize upon or otherwise deal with in any
manner and in any order any property at any time pledged or mortgaged to secure
the Liabilities and any off-set thereagainst; (c) exercise or refrain from
exercising any rights against Borrower or others
(including Guarantor) or act or refrain from acting in any other manner;(d)
settle or compromise any Liability or any security therefor and may subordinate
the payment of all or any part thereof to the payment of any Liability (whether
or not due) of Borrower to creditors of Borrower other than Lender and
Guarantor; and (e) apply any sums from any sources to any Liability without
regard to any Liabilities remaining unpaid.
3. Guarantor hereby waives any and all requirements that Lender institute
any action or proceeding, at law or in equity against Borrower or against any
other party or parties with respect to the Liabilities as a condition precedent
to bringing any action against Guarantor upon this Guaranty. All remedies
afforded to Lender by reason of this Guaranty are separate and cumulative
remedies and no one of such remedies, whether waived by Lender or not, shall be
deemed to be an exclusion of any one of the other remedies available to Lender
and shall not in any way limit or prejudice any other legal or equitable remedy
which Lender may have.
4. Guarantor further agrees that it shall not be released from its
obligations hereunder by reason of any amendment to or alteration of the terms
and conditions of the Note or Mortgage or the indebtedness arising thereunder,
nor shall Guarantor's obligations hereunder be altered or impaired by any delay
by Lender in enforcing the terms and obligations of the Note or Mortgage or by
any waiver of any default by Lender under the Note or Mortgage, it being the
intention that Guarantor shall remain fully liable hereunder, notwithstanding
any such event.
5. No extension of the time of payment or performance of any obligation
hereunder guaranteed, or the renewal thereof, nor delay in the enforcement
thereof or of this Guaranty, or the taking, exchanging, surrender or release of
other security therefor or the release or compromise of any liability of any
party shall affect the liability of or in any manner release Guarantor, and this
Guaranty shall be a continuing one and remain in full force and effect until
each and every obligation hereby guaranteed shall have been fully paid and
performed.
6. That until Guarantor is released as hereinbefore described, Guarantor
shall not be released by any action or thing which might, but for this provision
of this Guaranty, be deemed a legal or equitable discharge of Guarantor, or by
reason of any waiver, extension, modification, forbearance or delay by Lender,
or Lender's failure to proceed promptly or otherwise, or by reason of any
further obligation or agreement between any owner of the Property and the then
holder of the Mortgage and the Note secured thereby or any of the terms,
covenants and conditions contained therein, and Guarantor hereby expressly
waives and surrenders any defense to Guarantor's liability hereunder based upon
any of the foregoing act, things, agreements or waivers.
7. Lender shall not be required to give any notice to Guarantor hereunder
in order to preserve or enforce Lender's rights hereunder (including, without
limitation, notice of any default under or amendment to the Note or Mortgage),
any such notice being expressly waived by Guarantor. Upon the occurrence of a
default under the Note or Mortgage, Lender is hereby authorized, at any time and
from time to time, without notice to Guarantor or to any other person, any such
notice being hereby expressly waived, to immediately set-off, appropriate and
apply any
and all deposits (general or special) and any other indebtedness at any time
held or owing by Lender to or for the credit or the account of Guarantor against
and on account of the obligations and liabilities of Guarantor hereunder.
Notwithstanding any payment or payments hereunder or any such set-off,
appropriation or application, until such time as all amounts owing to Lender
have been paid in full, Guarantor shall not be subrogated to any of the rights
of Lender against Borrower under the Note or Mortgage, or entitled to a tender,
redelivery or reassignment of the Note or the Mortgage, or entitled to a tender,
redelivery or reassignment of the Note or the Mortgage or any other collateral
security give for the loan.
8. Guarantor agrees that it shall make no claim or set-off, defense,
recoupment or counterclaim of any sort whatsoever, nor shall Guarantor seek to
impair, limit or defeat in any way its obligations hereunder and Guarantor
hereby waives any right to such a claim in limitation of its obligations
hereunder.
9. Guarantor shall be in default hereunder upon: (a) non-payment of any
liability when due; (b) failure of Borrower or Guarantor to perform any
agreement creating or otherwise affecting any Liability or any provision hereof,
or to pay in full when due, any obligation of Borrower or Guarantor under the
Note or Mortgage; (c) the death, dissolution, termination of existence,
insolvency, or business failure of Borrower or Guarantor, appointment of a
receiver of any part of the property of any such party, assignment for the
benefit of creditors by or the commencement of any proceeding in bankruptcy or
insolvency by or against Borrower or Guarantor; (d) the entry of a judgment
against Borrower or Guarantor; (e) the issuing of any attachment or garnishment,
or the filing of any lien against any property of Borrower or Guarantor; (f) the
taking of possession of any substantial part of the property of Borrower or
Guarantor at the instance of any governmental authority; (g) the merger,
consolidation or reorganization of Borrower; (h) the determination by Lender
that a material adverse change has occurred in the financial condition of
Borrower or Guarantor from the conditions set forth in the most recent financial
statement of any such party heretofore furnished to Lender or from the condition
of such party as heretofore most recently disclosed to Lender in any manner; or
(i) falsity in any material respect of, or any material omission in, any
representation or statement made to Lender by or on behalf of Borrower or
Guarantor in connection with any Liability.
10. Upon the occurrence of any default thereunder which continues after
the expiration of any applicable grace period, Lender shall have all of the
remedies of a creditor and, to the extent applicable, or a secured party, under
all applicable law. Without limiting the generality of the foregoing, Lender
may, at its option and without notice or demand; (a) declare any Liability
accelerated and due and payable at once; (b) take possession of any collateral
security wherever located, and sell, resell, assign, transfer and deliver all or
any part of said property of borrower or Guarantor, at any broker's board or
exchange or at any public or private sale, for cash or on credit for future
delivery, and in connection therewith Lender may grant options and may impose
reasonable conditions such as requiring any purchaser of any stock sold to
represent that such stock is purchased for investment purposes only, and, upon
any such sale, Lender, unless prohibited by law the provision of which cannot be
waived, may purchase all or any part of said property to be
sold, free from and discharge of all trusts, claims, right of redemption and
equities of Guarantor whatsoever; and (c) set-off against any or all Liability
or other obligations of Guarantor hereunder all money owed by Lender in any
capacity to Guarantor whether or not due, and also set-off against all other
Liabilities of Borrower or any obligations of Guarantor hereunder to Lender all
money owed by Lender in any capacity to Borrower or Guarantor, and Lender shall
be deemed to have exercised such right of set-off and to have made a charge
against any such money immediately upon the occurrence of such default although
made or entered on the books subsequent thereto.
11. Guarantor shall pay all costs of collection and reasonable attorney's
fees, including attorneys' fees incurred with or without suit (and with suit,
including out of court resolution or at trial and appellate levels of
litigation), in bankruptcy proceeding or otherwise, incurred or paid by Lender
in enforcing the payment of any Liability or enforcing or preserving any right
or interest of Lender hereunder, including the collection, sale or delivery of
any collateral security from time to time pledged hereunder; and after deducting
such fees, cost and expenses from the proceeds of sale or collection, Lender may
apply any residue to pay any of the Liabilities and Guarantor shall continue to
be liable for any deficiency with interest, which shall remain a Liability.
12. in the event Lender pays, repays or recovers any amount or amounts in
payment or on account of any of the Liabilities, then Guarantor agrees that any
such payment, repayment or recovery shall be binding upon Guarantor,
notwithstanding any revocation hereof or the cancellation of any note or other
instrument evidencing any Liability, and Guarantor shall be and remain liable to
Lender hereunder for the amount so paid, repaid or recovered.
13. Lender shall not be bound to take any steps necessary to preserve any
right in any of the property of Guarantor against prior parties who may be
liable in connection therewith, and Guarantor hereby agrees to take any such
steps. Lender may nevertheless at any time: (a) take any action it may deem
appropriate for the care or preservation of such property or of any rights of
Guarantor or Lender therein; (b) demand, sue for, collect or receive any money
or property at any time due, payable or receivable on account of or in exchange
for any property of Guarantor, (c) compromise and settle with any person liable
on such property, or (d) extend the time of payment or otherwise change the term
thereof as to any party liable thereon, all without notice to, without incurring
responsibility to, and without affecting any of the obligations of Guarantor
hereunder.
14. Guarantor hereby acknowledges that its obligations hereunder are
primary and not secondary and that Lender shall not be required to proceed first
against Borrower, or any other person, firm or corporation, whether primarily or
secondarily liable, or against any collateral security held by it, before
resorting to Guarantor for payment, and Guarantor shall not be entitled to
assert as a defense to the enforceability of the guaranty set forth hereunder
any defense of Borrower with respect to any Liability.
15. Lender shall have the right, at any time, without notice, to: (a)
transfer into its own name or that of its nominee any of the property of
Guarantor; (b) notify any obligor on any of such
property to make payment to Lender of any amounts due thereon; and (c) take
control of any proceeds of any such property.
16. This Guaranty is assignable by Lender and shall bind the heir,
devisees, personal representatives, successors and assigns of the parties hereto
and shall inure to the benefit of any successor or assign of Lender.
17. Guarantor hereby waives notice of acceptance of this Guaranty and all
of presentment, demand, protest, notice of protest and of dishonor, notice of
default and all other notices relative to this Guaranty of every kind and
description set forth in the Note or Mortgage, or provided by statute or role of
law.
18. Any notice, demand or request by Lender to Guarantor or from Guarantor
to Lender shall be in writing and shall be deemed to have been duly give or made
if either delivered personally or if mailed by certified or registered mail,
postage prepaid, addressed to the address set forth below (or at the correct
address of any assignee of Lender), except that mailed written notices shall not
be deemed given or served until three (3) days after the date of mailing
thereof.
If to Lender: Transohio Savings Bank
1250 Superior Avenue, N.E.
Cleveland, Ohio 44114
If to Guarantor: American Builders & Contractors Supply Co., Inc.
820 Broad Street
Beloit, Wisconsin 53511
19. This Guaranty shall, in all respect, be governed by and construed in
accordance with the laws of the State of Florida, including all matters of
construction, validity and performance. To the extent permitted by law,
Guarantor hereby waives any provision of law that renders any provision
hereunder prohibited or unenforceable in any respect.
20. In the event that any provision of this Guaranty is held to be void or
unenforceable, all other provisions shall remain unaffected and be enforceable.
21. No invalidity, irregularity or unenforceability of all or any part of
the Liabilities or of any security therefor shall affect, impair or be a defense
to this Guaranty, and this Guaranty is a primary and absolute obligation of
Guarantor.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty on the date
specified below:
WITNESSES: AMERICAN BUILDERS &
CONTRACTORS SUPPLY CO., INC.
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Name: By: Kenneth A. Hendricks, President
(please print)
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Name:
(please print)
EXHIBIT "A"
LEGAL DESCRIPTION
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The West 17.5 feet of Lot 2, all of Lots 3 through 18 inclusive and the West
17.5 feet of Lot 19, all being in Block 27, ALTA VISTA PARK according to the
Plat thereof, as recorded in Plat Book 13, Page 24, of the Public Records of
Palm Beach County, Florida.
And;
The Southerly 25 feet of the 45 foot right-of-way of 14th Avenue as abandoned
(now known as 4th Avenue North), abutting the West 17.5 feet of Lot 2 and Lots 3
through 10 inclusive, Block 27, as shown on said plat of .ALTA VISTA PARK.
And:
The Northerly 25 feet of the 50 foot right-of-way of 13th Avenue, as abandoned
(now known as 3rd Avenue North), abutting Lots 11 through 18 inclusive and, the
West 17.5 feet of Lot 19, Block 27, as shown on said plat of ALTA VISTA PARK.
Together with a non exclusive easement for ingress and egress over the West
30.00 feet of the East 383.00 feet of Tract 22, and the West 30.00 feet of the
East 383.00 feet of Tract 19, SAWYER SUBDIVISION as recorded in Plat Book 5,
Page 12, Public Records of Palm Beach County, Florida, and the West 30.00 feet
of the East 383.00 feet of the North 20.00 feet of 14th Avenue, as abandoned,
(now known as 4th Avenue North): as shown on the plat of ALTA VISTA PARK,
according to the plat thereof, as recorded in Plat Book 13, Page 24, Public
Records of Palm Beach County, Florida.
PREPARED BY AND RETURN TO:
Karl W. Leo
Leo and Associates
200 Randolph Avenue, Suite 200
Huntsville, Alabama 35901
Property Tax I.D. No.:
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Grantee's I.D. No.:
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THIS WARRANTY DEED made this 22nd day of December, 1992, by Kenneth A.
Hendricks, a married man (hereinafter called "Grantor"), whose mailing address
is: 822 Broad Street, Beloit, Wisonsin 53511, and American Builders &
Contractors Supply Co., Inc., a Texas corporation (hereinafter called
"Grantee"), whose mailing address is 820 Broad Street, Boloit, Wisconsin 53511.
(Whenever used herein the terms"(Grantor" and "Grantee" include all the
parties to this instrument and the here, legal representatives and assigns
of individuals, and the successors ad assigns of corporations)
WITNESSETH:
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That the Grant, for and in consideration of the sum of TEN and 00/100
Dollars ($10.00), to him and in had paid by the Grantee, the receipt whereof is
hereby acknowledged, has granted, bargained and sole to the Grantee, all that
certain land situate and being in Duval County, Florida, more particularly
described as follows:
South 10 feet of the West 622.5 feet of Tract 6. Bowden Farms, Plat Book
Page 91, current public records.
Also that part of Tract 7, Bowden Farms, according to plat aforesaid,
described as: Beginning at the Northwest corner of said tract 7, thence
North 58 degrees 35 minutes past along the North line of said Tract 7,
622.5 feet to the interaction of said North line aforesaid with the
Westerly right-of-way line of U.S. Highway No. 1, also known as Florida
State Rad No. 4, as now established; thence South 31 degrees 25 minutes
East along said right-of-way line 215.6 feet to a point, thence South 58
degrees 35 minutes West 369.5 feet to a point, thence South 31 degrees 25
minutes East 444.4 feet to a point in the South line of said Tract 7, the
South 58 35 minutes West along the Southerly line of said Tract 7, 253 feet
to the Southwest corner of said Tract 7, thence North 31 degrees 25 minutes
West along the Westerly line of said Tract 7, 660 feet to the point of
beginning, being the North 215.6 feet of the West 622.5 feet and the South
444.4 feet of the West 253 feet of said Tract 7.
SUBJECT TO a Mortgage to Medlife Capital Credit Corporation, dated
September 1, 1991, recorded in the Official Record Books of the Public Records
of Duval County, Florida.
SUBJECT TO taxes and assessments for the year 1992 and all subsequent
years; all applicable environmental zoning and land use ordinances,
restrictions, prohibitions and other requirements imposed by governmental
authority; and all matters appearing in the Plat of the Property.
GRANTOR warrants that this property is not and has never been his homestead
and does hereby covenant with Grantee that, except as noted above, at the time
of delivery of this Deed, the Premises were free from all encumbrances made by
Grantor, and that Grantor will warrant and defend the same against lawful claims
of persons whomsoever.
IN WITNESS WHEREOF, Grantor has caused these presents to be executed the
day and year first above written.
SIGNED, SEALED AND DELIVERED:
in the presence of:
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Print: KENNETH A. HENDRICKS
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Print:
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STATE OF WISCONSIN )
) ss.
COUNTY OF ROCK )
The foregoing instrument was acknowledged before me this ______ day of
________________, 1992, by Kenneth A. Hendricks. The above-named individual is
personally known to me and who did take an oath.
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Notary Public:
Print Name:
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Commission No.:
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(NOTARY SEAL) My Commission expires:
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