1
EXHIBIT 10.32
This instrument was prepared by:
Mr. Robert J. Stambaugh
SHARIT, BUNN, CHILTON & HOLDEN, P. A.
Attorneys at Law
Post Office Box 9498
Winter Haven, FL 33883-9498
MORTGAGE MODIFICATION, CONSOLIDATION, SPREADER,
AND EXTENSION AGREEMENT
THIS AGREEMENT made and entered into as of the 31st day of March, 1995,
by and between AGRICULTURAL PRODUCTS, INC., a California corporation,
hereinafter referred to as "Mortgagor", CALNETICS CORPORATION, a California
corporation, hereinafter referred to as "Guarantor", and FIRST UNION NATIONAL
BANK OF FLORIDA, hereinafter referred to as "Mortgagee".
WITNESSETH:
WHEREAS, the Mortgagee is the present owner and holder of the below
described instruments executed by Mortgagor in connection with the following
described Mortgage loans from Mortgagor encumbering real estate situated in Polk
County, Florida, said instruments being specifically:
1. Promissory Note from Mortgagor to Mortgagee dated February 20,
1990, evidencing an original principal indebtedness of $162,000.00 secured by
that certain Mortgage dated February 20, 1990 and recorded February 26, 1990 in
O. R. Book 2827, page 1519 of the public records of Polk County, Florida.
2. Promissory Note from Mortgagor to Mortgagee dated May 25, 1990
evidencing an original principal indebtedness of $90,000.00 secured by that
certain Mortgage dated May 25, 1990, recorded July 19, 1990 in O. R. Book 2866,
page 1067, public records of Polk County, Florida.
3. Renewal/Consolidated Promissory Note from Mortgagor to Mortgagee
(renewing and consolidating the Promissory Notes described in paragraphs 1 and
2 above) in the amount of $233,945.01 dated March 13, 1992.
4. Mortgage Modification, Consolidation, and Extension Agreement
entered into between Mortgagor and Mortgagee (modifying, consolidating and
extending the Mortgages described at paragraphs 1 and 2 above) dated March 13,
1992, and recorded March 30, 1992 in O. R. Book 3081, page 1491, public records
of Polk County, Florida.
5. Promissory Note from Mortgagor to Mortgagee dated March 27, 1991
evidencing an original indebtedness of $130,500.00 secured by that certain
Mortgage dated March 27, 1991, and recorded March 28, 1991 in O. R. Book 2955,
page 1818, public records of Polk County, Florida.
WHEREAS, the Mortgages described at paragraphs 1 and 2 above, as
modified by the Agreement described at paragraph 4 above, encumber the real
property described in Exhibit A attached hereto; and
WHEREAS, the Mortgage described 5, above, encumbers the real property
described in Exhibit B attached hereto; and
WHEREAS, the present cumulative total unpaid principal balance due on
the Promissory Notes described at paragraphs 3 and 5, above, is presently the
sum of TWO HUNDRED NINETY-NINE THOUSAND SIX HUNDRED TWENTY-SIX AND 21/100
DOLLARS ($299,626.21); and
WHEREAS, Mortgagor has requested the Mortgagee to adjust certain of the
loan terms, and to consolidate and modify the payment provisions of the above
described Promissory Notes and Mortgages, all as more specifically set forth in
this Agreement, and the Renewal Consolidated Promissiory Note; and
WHEREAS, the Mortgagee has agreed to make the adjustments and changes
requested by Mortgagor as hereinafter set forth on the condition that the lien
of each of the Mortgages be spread to include all of the real property
described in Exhibits A and B attached hereto.
NOW, THEREFORE, in consideration of the aforesaid premises, the mutual
benefits to and the mutual promises of the parties hereto, the sums hereinafter
stipulated to be paid, and other good and valuable considerations, it is hereby
agreed by the Mortgagor, Guarantor, and the Mortgagee as follows:
I.
All interest due and owing on said notes and mortgages has been paid
through March 30, 1995.
2
II.
As evidence of the said sum due Mortgagee by Mortgagor, Mortgagor has
this day simultaneously executed and a Renewal Consolidated Promissory Note in
the amount of TWO HUNDRED NINETY-NINE THOUSAND SIX HUNDRED TWENTY-SIX AND 21/100
DOLLARS ($299,626.21), combining the remaining indebtedness due on the
Promissory Notes described in the preceding paragraphs 3 and 5 of this
agreement, bearing interest at the rate of Mortgagee's Prime, plus
three-quarters percent (0.75%) per annum, as that rate may change from time to
time with changes to occur on the date that Mortgagee's prime rate changes,
calculated on a 360 day basis based on the actual elapsed, said Consolidate
Renewal Note payable as follows:
Principal shall be paid in fifty-nine (59) equal monthly installments
of $1,664.59 each, commencing on May 2, 1995, together with accrued
interest thereon at the rate set forth above, and continuing on the
same day of each successive month thereafter, with a final payment of
all unpaid principal and interest thereon on April 2, 2000.
III.
The liens of the Mortgage described in paragraphs 1 and 2 (as
consolidated by Agreement described in paragraph 4) and paragraph 5, are hereby
spread, consolidated and modified so that they, and each of them, shall now
constitute a single valid first mortgage lien on all of the real property
described in Exhibits A and B, attached, which shall secure the payment of the
obligations secured in the Mortgages, as fully as if set forth herein.
IV.
The parties to this Agreement hereby consent to the said Modification,
Consolidation, Spreader and Extension and agree that the statute of limitations
shall not commence to run against the same until the expiration of time for
payment of the indebtedness as herein extended.
V.
The terms, provisions and covenants of the Letter Commitment issued by
Mortgagee to Mortgagor dated March 22, 1995, and accepted by Mortgagor on April
4, 1995, are incorporated herein by reference, and the failure of Mortgagor to
comply with and fulfill the obligations thereunder shall constitute an event of
default entitling Mortgagee, at its option, to declare the notes and mortgages,
as modified, herein described immediately due and payable entitling Mortgagee
to foreclose on the security therefor and to exercise any other remedies then
available to Mortgagee.
VI.
It is the intent of the parties hereto that this instrument shall not
constitute a novation and shall in no way adversely affect or impair the lien
priority of the Mortgages. In the event this instrument, or any part hereof, or
any of the instruments executed in connection herewith shall be construed or
shall operate to affect the lien priority of the Mortgages, then to the extent
such instrument creates a charge upon the real property encumbered by the
Mortgages in excess of that contemplated and permitted by the Mortgages, and to
the extent third persons acquiring an interest in such property between the
time of recording of the Mortgages and the recording hereof are prejudiced
thereby, if any, this instrument shall be void and of no force or effect;
provided, however, that notwithstanding the foregoing, the parties hereto, as
between themselves, shall be bound by all the terms and conditions hereof until
all indebtedness owing from Mortgagor to Mortgagee shall have been paid.
VII.
Environmental Conditions of Property; Indemnification. Mortgagor
warrants and represents to Mortgagee, after appropriate inquiry and
investigation that: (a) while Mortgagee has any interest in or lien on the
Property, the Property described herein is, and at all times hereafter, will
continue to be in full compliance with all Federal, State and local
environmental laws and regulations, including but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(CERCLA), Public Law No. 96-510, 94 Stat. 2767, 42 USC 9601, et. seq, and the
Superfund Amendments and Reauthorization Act of 1986 (SARA), Public Law No.
99-499, 100 Stat. 1613, and (b) (i), as of the date hereof there are no
hazardous materials, substances, wastes or other environmentally regulated
substances (including without limitation, any materials containing asbestos)
located on, in, or under the Property or used in connection therewith, or (ii)
Mortgagor has fully disclosed to Mortgagee in writing the existence, extent, and
nature of any such hazardous materials, substances, wastes, or other
environmentally regulated substances, which Mortgagor is legally authorized and
empowered to maintian on, in, or under the Property or use in connection
therewith, and Mortgagor has obtained and will maintain all licenses, permits,
and approvals required with respect thereto, and is in full compliance
3
with all of the terms, conditions, and requirements of such licenses, permits,
and approvals. Mortgagor further warrants and represents that it will promptly
notify Mortgagee of any change in the nature or extent of any hazardous
materials, substances or wastes maintained on, in, or under the Property or
used in connection therewith, and will transmit the Mortgagee copies of any
citations, orders, notices, or other material governmental or other
communication received with respect to any other hazardous materials,
substances, wastes, or other environmentally regulated substances affecting the
Property.
Mortgagor shall indemnify and hold Mortgagee harmless from and against
any and all damages, penalties, fines, claims, liens, suits, liabilities, costs
(including clean-up costs), judgments, and expenses (including attorneys',
consultants', or experts' fees and expenses) of every kind and nature suffered
by or asserted against Mortgagee as a direct or indirect result of any warranty
or representation made by Mortgagor in the preceding paragraph being false or
untrue in any material respect or any requirement under any law, regulation, or
ordinance, local, state, or federal, which requires the elimination or removal
of any hazardous materials, substances, wastes or other environmentally
regulated substances by Mortgagee.
Mortgagor's obligations to Mortgagee hereunder shall terminate upon
payment in full of the Note secured hereby and satisfaction and release of the
Mortgage, except, as to any act or occurrence prior to such payment and
satisfaction which gives rise to liability hereunder, the Mortgagor's liability
shall continue, survive, and remain in full force and effect notwithstanding
payment in full and satisfaction of said Note and this Mortgage or foreclosure
under this Mortgage, or delivery of a deed in lieu of foreclosure.
VIII.
Except as modified herein, the notes described above, as well as all
other loan documentation executed in connection with this loan transaction,
including all amendments or modifications thereof, are ratified, approved and
affirmed in all their terms and conditions, and shall remain in full force and
effect, and the execution of this instrument on behalf of the Mortgagee shall
not be deemed a waiver of any default in any of the above described notes
existing as of this date, or shall this instrument be deemed to eliminate any
right which Mortgagee may otherwise have to accelerate the indebtedness on
account of any default by Mortgagor.
IX.
This Agreement shall bind jointly and severally the parties
hereto, their heirs, personal representatives, successors and assigns.
IN WITNESS WHEREOF, the Mortgagor, the Guarantor, and the Mortgagee
have caused this Agreement to be executed as of this 31st day of March, 1995.
Signed, Sealed and Delivered AGRICULTURAL PRODUCTS, INC.
in the Presence of:
/s/ K. BRIDGERS By /s/ LON SCHULTZ
- ------------------------------ ----------------------------------------
K. BRIDGERS Lon Schultz, President
- ------------------------------ 3857 West Lake Hamilton Drive
Print/Type Name of Witness Winter Haven, FL 33881
/s/ LOUISE A. MANZANO (CORPORATE SEAL)
- ------------------------------
LOUISE A. MANZANO MORTGAGOR
- ------------------------------
Print/Type Name of Witness
AS TO MORTGAGOR CALNETICS CORPORATION
By /s/ CLINTON G. GERLACH
/s/ MARY LIVINGSTON ----------------------------------------
- ------------------------------ Clinton G. Gerlach, President
MARY LIVINGSTON 20401 Prairie Street
- ------------------------------ Chatsworth, CA 91311
Print/Type Name of Witness
/s/ BARBARA GUYER (CORPORATE SEAL)
- ------------------------------
BARBARA GUYER (GUARANTOR)
- ------------------------------
Print/Type Name of Witness
AS TO GUARANTOR
/s/ CHARLES D. CHITTON
- ------------------------------ FIRST UNION NATIONAL BANK OF FLORIDA
CHARLES D. CHITTON
- ------------------------------ By /s/ J. EARL MORGAN
Print/Type Name of Witness ---------------------------------------
J. Earl Morgan, III, Vice President
/s/ LYNN S. SCOTT Post Office Box 193
- ------------------------------ Winter Haven, FL 33882-0193
LYNN S. SCOTT
- ------------------------------ (CORPORATE SEAL)
Print/Type Name of Witness
AS TO MORTGAGEE (MORTGAGEE)
3
4
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
The foregoing document was acknowledged before me by LON SCHULTZ as
President of AGRICULTURAL PRODUCTS, INC., a California corporation, on behalf
of said corporation, who is personally known to me or who has produced
B1536807, as identification, this 8th day of May, 1995.
[SEAL] /s/ CONSUELO UNTALAN
-------------------------------------
CONSUELO UNTALAN
-------------------------------------
Print/Type Name of Notary Public
Commission No.
----------------------
My Commission Expires:
--------------
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
The foregoing document was acknowledged before me by CLINTON G.
GERLACH, as President of CALNETICS, INC., a California corporation, on behalf
of said corporation, who is personally known to me or who has produced
, as identification, this day of May, 1995.
- ----------- ----
[SEAL] /s/ ROBERT WALTER MATLOSZ
-------------------------------------
ROBERT WALTER MATLOSZ
-------------------------------------
Print/Type Name of Notary Public
Commission No. 1014700
My Commission Expires: Jan. 20, 1998
STATE OF FLORIDA
COUNTY OF POLK
The foregoing document was acknowledged before me by J. EARL MORGAN,
III, as Vice President of FIRST UNION NATIONAL BANK OF FLORIDA, who is
personally known to me, this 15th day of May, 1995.
[SEAL] /s/ LYNN S. SCOTT
-------------------------------------
LYNN S. SCOTT
-------------------------------------
Print/Type Name of Notary Public
Commission No. CC207265
My Commission Expires: Jul. 16, 1996
EXHIBIT A
The North 457.50 feet of Lot 180, lying East of canal in Lucern Park Fruit
Association, as shown by map or plat thereof recorded in the office of the
Clerk of the Circuit Court in and for Polk County, Florida, in Plat Book 3,
Page 67, LESS AND EXCEPT the North 307.5 feet thereof and LESS AND EXCEPT
roadways of record.
EXHIBIT B
Commence at the Southeast corner of Lot 180 of Lucerne Park Fruit Association
Subdivision, as recorded in Plat Book 3B, page 67, of the public records of
Polk County, Florida, run thence North 00 degrees 27 minutes 13 seconds West
along the East boundary of said lot, 31.22 feet to the point of beginning.
Thence continue North 00 degrees 27 minutes, 13 seconds West, 150.00 feet;
thence South 89 degrees 41 minutes 41 seconds West, 308.63 feet to the Easterly
right of way of the Lake Henry-Lake Hamilton Canal, thence South 00 degrees 19
minutes 40 seconds East along said right of way, 150.00 feet, thence North 89
degrees 41 minutes 41 seconds East, 308.96 feet to the point of beginning.
Subject to maintained right of way along the East boundary thereof.
4
5
[FIRST UNION LOGO]
March 22, 1995
Mr. Lon Schultz, President
Agricultural Products, Inc.
Post Office Box 3760
Ontario, CA 91761
Dear Mr. Schultz:
We are pleased to advise you that the First Union National Bank of Florida
(hereinafter referred to as "Bank") has approved the renewal and consolidation
of your mortgage loans secured by first mortgages on the real property
(hereinafter referred to as the "Mortgaged Premises") located at 3855 and 3857
Lake Hamilton Drive in Winter Haven, Florida. This commitment is being offered
subject to the following terms and conditions.
A. TERMS OF LOAN
1. Borrower: The loan shall be made to Agricultural Products, Inc.
(hereinafter referred to as "Borrower"), which shall be responsible for the
repayment of the loan.
2. Amount of Loan: The loan shall be in an amount not to exceed Two
Hundred Ninety Nine Thousand Six Hundred Twenty Six and 21/100 Dollars
($299,626.21).
3. Term of Loan: The principal amount of the loan shall be repayable over
the term of five (5) years from the date of closing, effective as of March
31, 1995, with repayment terms set forth in paragraph 5 below.
4. Interest Rate: The loan shall bear interest at a rate of
three-quarters of one percent (0.75%) above the Bank's Prime Rate per annum.
Prime Rate is defined as that rate of interest announced from time to time by
the Bank as its Prime Rate. Interes shall be calculated using a year base of
360 days and charged for the actual number of days elapsed in an interest
period.
5. Repayment: Commencing on the fifth day of the first month of the
loan term and continuing on the fifth day of each month thereafter, principal
payments of $1,664.59 plus interest shall be due in fifty-nine (59) monthly
installments, with the principal balance of the loan, if not sooner paid, being
payable at maturity, which shall be the fifth day of the sixtieth (60th) month
of the loan term.
6
Mr. Lon Schultz, President
Agricultural Products, Inc.
March 22, 1995
Page 2
6. Prepayment: The loan may be prepaid in whole or in part at any time
without any prepayment premium, penalty, or fee whatsoever. Prepayments will be
applied to the principal balance of the loan in inverse order of maturity.
7. Loan Purpose: The loan shall be used by the Borrower for the
purpose of renewing and consolidating First Union notes #42 and #67 and for no
other purpose.
8. Loan Security: The repayment of the loan shall be secured by:
(a) A mortgage constituting a valid first lien on the Mortgaged
Premises, together with all Improvements presently located or hereafter
to be constructed thereon. The final legal description of the Mortgaged
Premises must be approved by the Bank and its attorneys.
(b) A Security Agreement, constituting a valid first lien on and prior
perfected security interest in such fixtures, equipment, and personal
property (including additions, replacements, substitutions thereto or
thereof, and after-acquired property) to be located in or upon which
are used or useful on, in, or about the Mortgaged Premises.
9. Unlimited Guaranty: The repayment of the loan and all interest
accrued thereon and the performance of the Borrower and the terms shall be
unconditionally guaranteed by Calnetics Corporation (hereinafter referred to as
"Guarantor"). The Guaranty shall remain in full force on this obligation, as
amended.
10. Loan Administration Fee: Upon acceptance of this Commitment,
Borrower shall pay to Bank a nonrefundable Loan Administration Fee in the
amount of $500.00 to compensate the Bank for costs and expenses incurred to
underwrite, document, and close the loan herein contemplated.
B. REQUIREMENTS OF LOAN
1. Title Assurance: The Bank's obligation to provide the financing
contemplated herein is expressly conditioned upon it's receipt of a title
opinion letter from it's attorney verifying that it will have a valid first
mortgage in the real property.
7
Mr. Lon Schultz, President
Agricultural Products, Inc.
March 22, 1995
Page 3
2. Insurance: At the time of loan closing, Borrower shall furnish a
permanent policy or policies of fire and extended coverage insurance and
general comprehensive liability insurance policy or policies, which shall be
written in such amounts, on such forms, and by such companies as shall be
acceptable to and approved by the Bank and shall contain a written
noncontributing standard long-form mortgage/loss payable clause in favor of the
Bank, as its interest may from time to time appear, and, in addition shall
contain the written obligation on the part of the issuing carrier or carriers
to provide to the Bank with at least ten (10) days prior written notice of the
expiration or any contemplated termination or cancellation of such policy or
policies.
3. Annual Reports: The Guarantor shall furnish to the Bank within
ninety (90) days after the end of each fiscal year the Annual Report pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934, more commonly
known as the 10-K report. The report shall be prepared in accordance with
generally accepted accounting principles.
4. Closing Attorneys: The loan shall be closed by Attorneys of the
Bank's choosing who shall represent the Bank in this transaction. All matters
pertaining to the Commitment requirements and the loan documents must be
satisfactory to said attorneys.
C. DOCUMENTATION OF LOAN
1. General Provisions: The documents used to evidence and secure the
loan transaction contemplated herein shall be those documents customarily used
by the Bank in connection with loan transactions of the nature and size
contemplated herein and/or such other documents as the Bank and its attorneys,
in their sole discretion, may deem necessary or expedient for the Bank's
protection. All required loan documents shall be prepared by and acceptable to
the Bank's attorneys. In addition to all other documents which may be
required, the following specific loan documents shall be required, to
wit:
(a) A Renewal Consolidated Promissory Note evidencing the loan.
(b) A Mortgage Deed, granting a first lien on the Borrower's fee
simple title to the Mortgage Premises.
(c) A Security Agreement granting a first lien and prior perfected
security interest in all construction materials, fixtures, equipment,
and items of personal property as aforesaid.
8
Mr. Lon Schultz, President
Agricultural Products, Inc.
March 22, 1995
Page 4
(d) Uniform Commercial Code Financing Statements to be filed with
the Office of the Secretary of State of Florida and the Clerk of the
Circuit Court of Polk County, Florida, evidencing the security
interests granted by the aforesaid Security Agreements.
(e) An Environmental Rider.
(f) A Closing Statement.
2. Special Provisions: The loan documents shall provide that, so long as
any part of the loan contemplated hereby is outstanding, the Mortgaged Premises
referred to above shall remain free and clear of all liens, encumbrances,
mortgages, security interests, and secondary financing whatsoever, and shall
not be sold, conveyed, or transferred, or leased, except for those transactions
which may be approved in writing by the Bank. The loan documents shall provide
that occurrence of any of the foregoing shall, at the option of the Bank,
constitute grounds for accelerating any and all sums unpaid under the loan.
D. MISCELLANEOUS
1. Environmental Certification: Borrower certifies by acceptance of this
agreement, or shall furnish evidence satisfactory to Bank, that to the best of
its knowledge the property does not contain: (a) asbestos in any form, (b)
urea formaldehyde foam insulation, (c) transformers or other equipment
containing polychlorinated biphenyls (PCBs) in amounts that exceed acceptable
standard levels, (d) underground storage tanks, nor (e) any other materials or
substances that are regulated or prohibited by Federal, State, or local laws,
or that are known to pose a hazard to the environment or to human health.
Borrower also certifies, or shall furnish evidence satisfactory to Bank, that
to the best of its knowledge the property and operations at the property are
in compliance with all applicable Federal, State, and local statutes, laws, and
regulations. Borrower further certifies that no notices claiming a violation of
regulations or statutes, nor notices requiring compliance with regulations or
statutes, nor notices demanding payment or contribution for injury to the
environment or human health have been served on Borrower, or, to the best of
Borrower's knowledge, on any former owner/operator of the Mortgaged Premises,
by any government agency, individual, or other entity. Borrower agrees to
forward a copy of any such notices received after settlement to
9
Mr. Lon Schultz, President
Agricultural Products, Inc.
March 22, 1995
Page 5
Bank within three (3) days of their receipt. Borrower acknowledges that Bank
shall not be obligated to make any disbursements if condemnation proceedings
are commenced or threatened against any part of the property.
Borrower further certifies that any hazardous or potentially hazardous
materials used in Borrower's operation or generated as a product or by-product
are now and will continue to be stored, used, and maintained in accordance with
applicable Federal, State, and local laws and regulations, and that all
hazardous wastes will be disposed of by duly licensed contractors in accordance
with all governing regulations. In the sole and absolute discretion of Bank,
Borrower may be required to submit a report, satisfactory to Bank, prepared by
a consultant acceptable to Bank, certifying that Borrower has complied and is
complying with this clause. Bank further reserves the right to require
systematic and periodic monitoring of the property throughout the term of the
loan.
By execution of a rider attached to the mortgage/security instrument at loan
closing, Borrower shall provide additional warranties and representations
concerning the environmental conditions of the property. Borrower shall also
indemnify Bank against any and all damages arising from any claims of
environmental contamination of the property. A copy of this rider is attached
for Borrower's review.
2. Representations of Borrower: The validity of this Commitment is
subject to the accuracy of all information, representations, and materials
provided, made, or submitted with or in support of the application for the loan
contemplated herein; and the failure of the accuracy thereof or any material
changes therein shall, at the option of the Bank, operate to terminate this
Commitment and all of the Bank's obligations hereunder if the same shall occur
prior to closing and shall constitute grounds for accelerating any and all sums
unpaid under the loan documents if the same shall occur subsequent to closing.
3. Costs and Expenses: The Bank shall not be put to any expense
whatsoever in connection with the issuance of this Commitment or the closing of
the loan transaction contemplated hereby. Accordingly, the Borrower shall pay
directly or reimburse the Bank for all costs and expenses incurred in
connection with the preparation for and the closing of the loan whether said
loan is closed or not, including, without limitation, all appraisal fees,
surveys, legal fees, documentary stamp taxes, intangible taxes, recording
costs, license and permit fees, and all title insurance and other insurance
premiums required in connection with the loan transaction contemplated herein.
10
Mr. Lon Schultz, President
Agricultural Products, Inc.
March 22, 1995
Page 6
4. Voidability of Commitment: This Commitment shall be voidable, at the
option of the Bank, if any of the following events shall occur, to wit:
(a) If Borrower commits an act of bankruptcy.
(b) If a proceeding is commenced by or against Borrower under any
bankruptcy or insolvency law.
(c) If Borrower's business is discontinued or suspended for any
reason.
(d) If there is any material adverse change in Borrower's business or
financial condition.
(e) If Borrower defaults on any other obligation it may have to the
Bank.
5. Depository Accounts: Certain of Borrower's depository accounts will be
maintained at the Bank.
6. Cross-Default: A default under any commitment and/or loan made by any
lending institution to Borrower shall constitute a default under all
commitments and/or loans made to Borrower by the Bank.
7. Non-Assignability: Neither this Commitment nor the proceeds of the
loan contemplated herein shall be assignable by Borrower, except to Guarantor,
without the prior written consent of the Bank, and any attempt at such
assignment, without the Bank's prior written consent, shall be void.
8. Modifications and Amendments: No change in the provisions of this
Commitment shall be binding unless in writing and executed in the name of the
Bank and the Borrower by a duly authorized officer of the Bank and the
Borrower, respectively.
9. Governing Law: This Commitment, the loan transaction contemplated
hereby, and all loan documents executed pursuant hereto shall be construed
according to and governed by the laws of the State of Florida.
11
Mr. Lon Schultz, President
Agricultural Products, Inc.
March 22, 1995
Page 7
10. Closing: The loan transaction contemplated herein shall be closed on
or before April 12, 1995, to be effective as of March 31, 1995. Failure to
close by this date shall render this commitment null and void.
11. Commitment Provisions Survive Closing: The provisions of this
Commitment shall survive the closing of the loan transaction contemplated here.
12. Commitment Expiration: This Commitment shall expire unless it has been
accepted in writing and the acceptance received by the undersigned on or before
April 5, 1995.
13. Waiver of Jury Trial: THE UNDERSIGNED HEREBY KNOWINGLY, VOLUNTARILY,
AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED ON THIS AGREEMENT OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS AGREEMENT OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT
HERETO OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK
ACCEPTING AND/OR ENTERING INTO THIS AGREEMENT (OR ANY AGREEMENT EXECUTED IN
CONNECTION WITH THIS AGREEMENT) FROM, OR WITH, BORROWER AND/OR GUARANTOR(S).
If the Bank chooses to waive any covenant, paragraph, or provision of this
Commitment, or if any covenant, paragraph, or provision of this Commitment is
construed by a court of competent jurisdiction to be invalid, it shall not
affect the applicability, validity, or enforceability of the remaining
covenants, paragraphs, or provisions.
Please indicate your acceptance of this Commitment and the terms and conditions
contained herein by executing your acceptance immediately below and returning
the executed original Commitment Letter to the Bank on or before April 5, 1995.
Sincerely,
/s/ EARL MORGAN
- ---------------------------
Earl Morgan, Vice President
12
Mr. Lon Schultz, President
Agricultural Products, Inc.
March 22, 1995
Page 8
BORROWER'S ACCEPTANCE OF COMMITMENT AND AGREEMENT
The above Mortgage Loan Commitment is hereby accepted on the terms and
conditions outlined therein. If I fail to comply with any of the above
conditions or requirements or if my application is withdrawn or canceled by me,
or the loan contemplated therein cannot be closed within the time above
provided due to title difficulty, or other reasons within my control, I
understand that the Loan Commitment will expire immediately. I further agree
that, notwithstanding any such expiration of the Commitment, I shall be
obligated to pay all reasonable costs, expenses, and attorneys' fees incurred
by the Bank to the time of such expiration in connection with the issuance of
this Commitment and the preparation for the closing.
Agricultural Products, Inc.
By: /s/ LON SCHULTZ Date: 4/4/95
------------------------------------------- ---------------------
Lon Schultz, President
GUARANTOR'S ACCEPTANCE OF COMMITMENT AND AGREEMENT
Calnetics Corporation
By: /s/ CLINTON G. GERLACH Date: 4/5/95
------------------------------------------- ---------------------
Clinton G. Gerlach, Chairman
13
FIRST UNION NATIONAL BANK
OF FLORIDA
Commercial Banking
Post Office Box 193
Winter Haven, Florida 33880
813 291-6620
FAX 813 291-6618
[FIRST UNION LOGO]
Via Facsimile to (909) 390-1889
March 13, 1995
Mr. Lon Schultz, President
Agricultural Products, Inc.
Post Office 3760
Ontario, California 91761
Re: RENEWAL AND CONSOLIDATION OF AGRICULTURAL PRODUCTS, INC.'S NOTES #42 AND 67
Dear Mr. Schultz:
This letter supercedes and replaces my letter to you dated March 8,
1995, in which I responded to your request that First Union National Bank of
Florida ("Bank") would renew and consolidate the two mortgage notes referenced
above. We would entertain such a consolidation and renewal, subject to the
terms and conditions outlined herein.
BORROWER:
The borrower would continue to be Agricultural Products, Inc.
("Borrower"), or, at the option of Calnetics, Agricultural Products, Inc.'s
parent company, Calnetics may be substituted as the Borrower.
AMOUNT:
The amount of the consolidated renewal note would be the unpaid
principal balance of the two existing notes, referenced above, as of the
closing date.
TERM:
The renewal term would be sixty months, based upon a fifteen-year
amortization of principal plus interest monthly with a balloon payment due in
the sixtieth month from the date of the renewal/consolidation.
Page One
14
Mr. Schultz
March 13, 1995
Page Two
SECURITY:
The security for the loan would continue to be that collateral which
currently secures the two notes to be renewed and consolidated. There would be
no change in the existing collateral.
INTEREST RATE:
The interest rate would be First Union National Bank of Florida's Prime
Rate of interest plus three-quarters (.75 percent), adjustable with daily
changes in said index.
GUARANTOR:
The consolidated renewal note would be guaranteed by the parent
corporation, Calnetics.
FINANCIAL REVIEW BY THE BANK:
The Bank's final approval of this renewal and consolidation is subject
to our receipt and satisfactory review of Calnetics' December 31, 1994 10-Q
report and its June 30, 1994 10-K report. You may expedite our review of these
data by transmitting them via facsimile to (407) 649-5757 to the attention of
Mr. Chuck Beverly. We would also need originals for our files.
FEES AND COSTS OF RENEWAL/CONSOLIDATION:
The Borrower will bear any fees, costs or expenses in conjunction with
the renewal and consolidation of these two loans, including but not limited to
attorney's fees, Florida documentary stamps, recording fees, etc., with the
Borrower specifically agreeing to reimburse the Bank for up to $500.00 for an
internal evaluation of the real property securing the loan.
OTHER TERMS AND CONDITIONS:
All the other terms and conditions of the consolidated renewal note
would continue to be the same as those which currently prevail for the existing
two notes separately. For example, the Borrower will continue to maintain
hazard insurance covering the property, will provide periodic financial
reporting to the Bank, etc. Obviously, this letter is not intended to recite a
litany of detailed terms and conditions, but rather is sent to hasten you an
indication of our interest in providing you with the renewal and consolidation
requested. Should you choose to accept these broad and general terms, we will
forward you a somewhat more lengthy commitment letter after completing our
financial review, outlining the specifics of the anticipated closing.
15
Mr. Schultz
March 13, 1995
Page Three
PREPAYMENT:
As you know from our prior discussion, there will be no prepayment
penalty. In regard to your request that we apply any prepayments to the front
end of the loan rather than to its balloon balance, however, we must decline.
Any prepayment you wish to make which you would wish to alter any of the stated
repayment terms, such as the amortization of the loan, would need to be
negotiated at the time of the proposed prepayment and would require our review
of the Borrower's current financial condition and payment history.
We hope this offer to renew and consolidate pleases you. If you wish to
accept its terms and proceed toward a closing, please sign where indicated
below and send us a copy of Calnetics' December 31, 1994 10-Q and June 30, 1994
10-K reports at your earliest convenience, so that we may expedite our review.
This offer to renew and consolidate will expire on April 30, 1995, if not
accepted in writing prior to that date.
Thank you for the opportunity to submit this proposal, and for the
favor of handling your financing needs.
Sincerely,
/s/ EARL MORGAN
-------------------------------------
Earl Morgan
Vice President and Commercial
Relationship Manager
Accepted by: Agricultural Products, Inc.
/s/ LON SCHULTZ 3/14/95
---------------------------------- -----------------
Lon Schultz Date
President
16
March 31, 1995
First Union National Bank of Florida
Post Office Box 193
Winter Haven, FL 33882-0193
ATTENTION: MR. J. EARL MORGAN, III, VICE PRESIDENT
Gentlemen:
As required by the terms of your Commitment Letter issued to the undersigned
dated March 22, 1995, I represent and certify to you that Agricultural
Products, Inc. is not the subject of any pending or threatened administrative,
governmental, judicial, or quasi-judicial proceeding or investigation which
might adversely affect said corporation's ability to perform its obligations
under such Commitment Letter and/or the loan implementing documents.
The undersigned further certifies that no eminent domain or other condemnation
proceedings have been threatened or commenced against any part of the property
located at 3857 West Lake Hamilton, Winter Haven, FL 33881.
Very truly yours,
AGRICULTURAL PRODUCTS, INC.
By /s/ LON SCHULTZ
----------------------------------
Lon Schultz, President
17
LOAN CLOSING STATEMENT
RE: FIRST UNION NATIONAL BANK OF FLORIDA LOAN TO AGRICULTURAL PRODUCTS,
INC.
DATE: MARCH 31, 1995
PROPERTY: The North 457.50 feet of Lot 180, lying East of canal in Lucerne
Park Fruit Association, as shown by map or plat thereof recorded
in the office of the Clerk of the Circuit Court in and for Polk
County, Florida, in Plat Book 3, Page 67, LESS AND EXCEPT the North
307.5 feet thereof and LESS AND EXCEPT roadways of record.
AND
Commence at the Southeast corner of Lot 180 of Lucerne Park Fruit
Association Subdivision, as recorded in Plat Book 3B, page 67, of
the public records of Polk County, Florida, run thence North 00
degrees 27' 13" West along the East boundary of said lot, 31.22
feet to the point of beginning. Thence continue North 00 degrees
27' 13" West, 150.00 feet; thence South 89 degrees 41' 41" West,
308.63 feet to the Easterly right of way of the Lake Henry-Lake
Hamilton Canal, thence South 00 degrees 19' 40" East along said
right of way, 150.00 feet, thence North 89 degrees 41' 41" East,
308.96 feet to the point of beginning. Subject to maintained right
of way along the East boundary thereof.
*******************************************************************************
CLOSING COSTS
Recording Mortgage
Modification, etc. $ 19.50
Loan Fee 500.00
April 2, 1995 payments on 2 loans
(pre-consolidated & renewal)
#00067 2,766.84
#00042 1,447.58
UCC Searches (pre-and post) 40.00
Filing UCC-1 Financing Statement
(Clerk, Polk County, FL) 15.00
Filing UCC-1 Financing Statement
(Secretary of State, FL) 31.00
Federal Express (2) 50.00
Title Opinion 350.00
Attorneys' Fees and costs 1,968.00
---------
TOTAL $7,187.92
LESS: AMOUNTS PREVIOUSLY PAID BY BORROWER 6,468.52
---------
AMOUNT DUE $ 719.40
I HEREBY CERTIFY THAT I HAVE READ AND APPROVED THE ABOVE LOAN
CLOSING STATEMENT. I ACKNOWLEDGE THAT SHARIT, BUNN, CHILTON & HOLDEN,
P.A. REPRESENT THE BANK ONLY; THAT I AM PAYING THEIR ATTORNEY'S FEES AS
A COST OF THE LOAN; THAT I WAS ADVISED TO RETAIN MY OWN COUNSEL.
/s/ LON SCHULTZ
----------------------------------
LON SCHULTZ, PRESIDENT
AGRICULTURAL PRODUCTS, INC.
18
CONSOLIDATED RENEWAL
REAL ESTATE PROMISSORY NOTE
$299,626.21 No. March 31, 1995
----------- ----------- --------------------------------
(Date of Execution and Delivery)
LENDER: FIRST UNION NATIONAL BANK OF FLORIDA (hereinafter termed "LENDER"),
Winter Haven, Florida
-------------------------
(City)
BORROWER(S): AGRICULTURAL PRODUCTS, INC., a California Corporation
-----------------------------------------------------------------
(Name)
3857 West Lake Hamilton Drive, Winter Haven, Polk, FL 33881
-----------------------------------------------------------------
(No., Street or RFD) (City) (County) (State) (Zip Code)
BORROWER(S) REPRESENT HEREWITH THAT THE LOAN EVIDENCED HEREBY IS BEING OBTAINED
FOR THE FOLLOWING PRIMARY PURPOSE:
[X] BUSINESS: [ ] PERSONAL; [ ] FAMILY OR HOUSEHOLD; [ ] AGRICULTURAL
FOR VALUE RECEIVED: to wit, money loaned, the above named; the undersigned
BORROWER(S) (hereinafter collectively termed "BORROWER"), jointly and severally
(if more than one BORROWER), promise(s) to pay to the order of LENDER at its
office in the above city, or wherever else LENDER may specify, the sum of
TWO HUNDRED NINETY-NINE THOUSAND SIX HUNDRED TWENTY-SIX AND 21/100-------
- ------------------------------------------------------------------------------
($299,626.21) DOLLARS, witht interest until paid,
CONTRACT [ ] at the rate of percent ( %);
RATE OF ------------- -----
INTEREST [X] at the rate of LENDER'S PRIME RATE Plus three-quarters percent
(0.75%) as that rate may change from time to time with changes
to occur on the date the LENDER'S PRIME RATE changes;
[ ] at the rate of
--------------------------------------------------
to be adjusted beginning ;
-------------------- -------------------
[ ] payable in full on
----------------------------------------------
[ ] with interest payable commencing on and each
thereafter, -------- ------ --------
TERMS [X] payable in consecutive monthly payments of principal; commencing
OF on May 2, 1995, in 59 equal payments of $1,664.59 plus an
PAYMENT irregular payment of $201,415.40 due on April 2, 2000, with
interest payable monthly commencing on May 2, 1995, and each
month thereafter;
[ ] payable in consecutive payments of principal and
---------
interest; commencing on in equal payments
------------ ---
of $ plus an irregular payment of all remaining
----------
principal and interest due on
--------------------------------;
[ ] see attached Schedule "B", terms of which are incorporated
herein by reference;
(TERMS ABOVE NOT COMPLETED ARE DELETED)
The undersigned agrees to pay a late charge equal to 5% of each payment of
principal and/or interest which is not paid within 10 days of the date on which
it is due. At LENDER'S option, the contract rate shall become the highest rate
allowed by the law of the state of LENDER'S office as set forth herein
commencing with and continuing for so long as the loan or any portion thereof
is in Default (as hereinafter defined). Further, upon BORROWER'S Default and
where LENDER deems it necessary or proper to employ an attorney to enforce
collection of any unpaid balance or to otherwise protect its interests
hereunder; then BORROWER agrees to pay LENDER'S reasonable attorneys fees
(including appellate costs, if any) and collection costs. Liability for
reasonable attorneys fees and costs shall exist whether or not any suit or
proceeding is commenced.
INTEREST is computed on the basis of a 360 day year for the actual number of
days in the interest period (Actual/360 Computation) unless indicated below.
not applicable
- ------------------------------------------------------------------------------
DEFINITION OF LENDER'S PRIME RATE AND COMPUTATION FORMULAE APPEAR ON OTHER SIDE
All payments received during normal banking hours after 2:00 P.M. shall be
deemed received at the opening of the next banking day.
If the scheduled payment amount is insufficient to pay accrued interest,
BORROWER shall make an additional payment of the amount of the accrued interest
in excess of the scheduled payment.
Each of the undersigned, whether BORROWER, sureties, or endorsers; and all
others who may become liable for all or any part of the OBLIGATIONS evidenced
hereby, do hereby, jointly and severally; waive presentment, demand, protest,
notice of protest and/or of dishonor, and also notice of acceleration of
maturity of Default or otherwise. Further, they agree that Lender may, from
time to time, extend, modify, amend or renew this Note for any period (whether
or not longer than the original period of the Note) and grant any releases,
compromises or indulgences with respect to the Note or any extensions,
modifications, amendments or renewals thereof or any security therefor, or to
any party liable thereunder or hereunder, all without notice to or consent of
any of the undersigned and without affecting the liability of the undersigned
hereunder.
PAYMENT of this Note, all obligations of the undersigned BORROWER
hereunder "OBLIGATIONS" to LENDER, its successors and assigns, is secured
interalia, (and includes the terms and obligations set forth therein), by a
valid, subsisting Mortgage and Security Agreement (the "Mortgage") recordoed or
to be recorded in the county in which the real property described in the
Mortgage (the "Property") is located, and by this reference is incorporated
herein. If this Note is issued pursuant to a loan agreement of even date
herewith, made by and between Borrower and Lender (the "Loan Agreement", which
term shall be deemed to include any construction loan agreement or development
loan agreement), then by this reference, the Loan Agreement is specifically
incorporated herein;
If default be made in the payment of any installment under this Note or if
the Borrower violates any of the terms or breaches any of the conditions of the
Mortgage or the Loan Agreement, the entire principal sum and accrued interest
shall become due and payable without notice unless otherwise provided in the
Loan Agreement at the option of the Lender. Failure to exercise this option
shall not constitute a waiver of the right to exercise the same at any other
time. Upon such default, the principal of the Note and any part thereof, and
accrued unpaid interest, if any, shall bear interest at the rate of either
eighteen percent (18%) simple interest per annum after default until paid or at
the then highest legal rate permissable by law. All parties liable for the
payment of this Note agree to pay the Lender reasonable attorney's fees for the
services and expenses of counsel employed after maturity or default to collect
this Note (including any appeals relating to such enforcement proceedings), or
to protect or enforce the security hereto, whether or not suit be brought.
The remedies of Lender as provided herein, in the Mortgage and Loan
Agreement shall be cumulative and concurrent, and may be pursued singly,
successively or together, at the sale discretion of Lender and may be exercised
as often as occasion therefor shall arise. No act of omission or commission of
Lender, including specifically any failure to exercise any right, remedy or
recourse, shall be effective as a waiver thereof unless it is set forth in a
written document executed by Lender and then only to the extent specifically
recited therein. A waiver or release with reference to one event shall not be
construed as continuing, as a bar to, or as a waiver or release of, any
subsequent right, remedy or recourse as to any subsequent event.
Borrower and all sureties, endorsers and guarantors of this Note hereby
(a) waive demand, presentment for payment, notice of nonpayment, protest,
notice of protest and all other notice, filing of suit and diligence in
collecting this Note, in enforcing any of the security rights or in proceeding
against the Property; (b) agree to any substitution, exchange, addition or
release of any of the Property or the addition of release of any party or
person primarily or secondarily liable hereon; (c) agree that Lender shall not
be required first to institute any suit, or to exhaust his, their or its
remedies against Borrower or any other person or party to become liable
hereunder or against the Property in order to enforce payment of this Note; (d)
consent to any extension, rearrangement, renewal or postponement of time of
payment of this Note and to any other indulgency with respect hereto without
notice; consent or consideration to any of the foregoing (except the express
written release by Lender of any such person), they shall be and remain jointly
and severally, directly and primarily, liable for all sums due under this Note,
the Mortgage and the Loan Agreement.
As used herein, the words, "Borrower" and "Lender" shall be deemed to
include Borrower and Lender as defined herein and their respective heirs,
personal representatives, successors and assigns.
This Note is executed and delivered at the Place of Execution and shall be
construed and enforced in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the Borrower, on the day and year first written above, has
caused this Note to be executed under seal by (i) if a corporation, adoption of
the facsimile seal printed hereon for such special occasion and purpose (or if
an impression seal appears hereon by affixing such impression seal) by its duly
authorized officer(s) or, (ii) if by individuals, hereunto setting their hands
and seals.
CORPORATE BORROWER SEAL AGRICULTURAL PRODUCTS, INC., a California
Corporation
----------------------------------------
Name of Corporation
BY: BY: LON SCHULTZ
---------------------------- ----------------------------------------
Lon Schultz, President
INDIVIDUAL BORROWER(S), BY:
PROPRIETORSHIPS, PARTNERSHIPS ----------------------------------------
(Seal) (Seal)
- --------------------------- --------------------------------------
(Seal) (Seal)
- --------------------------- --------------------------------------
Taxpayer Identification Number(s)
-------------
19
FIRST UNION REAL ESTATE MARCH 31, 1995
UNCONDITIONAL GUARANTY --------------------------
(Date of Execution and
Delivery)
OBLIGOR(S): AGRICULTURAL PRODUCTS, INC., 3857 West Lake Hamilton Drive,
-------------------------------------------------------------------
(Print Full Name) (No. Street or RFD)
Winter Haven, Polk, FL 33881
-------------------------------------------
(City) (County) (State) (Zip)
GUARANTOR(S): CALNETICS CORPORATION, 20401 Prairie Street,
--------------------------------------------------
(Print Full Name) (No. Street or RFD)
Chatsworth, Los Angeles, CA 91311
--------------------------------------------------
(City) (County) (State) (Zip)
OBLIGEE: FIRST UNION NATIONAL BANK OF FLORIDA
P.O. Box 193, 203 Avenue A, N.W., Winter Haven, Polk, FL 33880
---------------------------------------------------------------------
(Mailing Address) (No. and Street) (City) (County) (State) (Zip)
WHEREAS, the above OBLIGOR(S) (hereinafter jointly and severally termed
"Customer"), desire(s) to obtain extensions of credit and/or a continuation of
credit extensions and/or to engage in business transactions and enter into
various contractual relationships and otherwise to deal with FIRST UNION
NATIONAL BANK OF FLORIDA (hereinafter termed "FUNB") and
WHEREAS, FUNB is unwilling to extend or continue to extend credit to and/or
engage in business transactions and enter into various contractual
relationships with, and otherwise to deal with Customer; unless it receives and
unconditional and continuing, joint and several guaranty from the above
identified, undersigned GUARANTOR(S) (hereinafter collectively termed
"Guarantor"), covering all "Obligations of Customer," as hereinafter defined.
NOW, THEREFORE, in consideration of the premises and of other good and valuable
consideration, and in order to induce FUNB to extend or continue to extend
credit to Customer in the principal amount of TWO HUNDRED NINETY-NINE THOUSAND
SIX HUNDRED SEVENTY-SIX AND 31/100 dollars ($299,676.21), plus interest, as
evidenced by that certain promissory note dated March 31, 1995 in favor of
Lender (the "Note"), and to enter into any loan agreement of even date
therewith executed in conjunction with the transaction (the "Loan Agreement"),
which term shall be deemed to include any construction loan and/or development
agreement),which Note is secured by that certain Mortgage and Security
Agreement of even date therwith encumbering the real and personal property
described therein, (the "Mortgage"), (with or without recourse) pursuant to
which Customer, jointly or severally, is liable as maker, or otherwise, and to
otherwise deal with Customer, Guarantor (jointly and severally, if more than
one) hereby absolutely and unconditionally guarantees to FUNB and to
successors and assigns, the due and punctual payment of all Obligations of
Customer. The full and prompt payment of principal, interest and any other
amounts due or to become due, whether by acceleration or otherwise, under the
Note or the Loan Agreement; the performance of any and all obligations of
Customer under the Loan Agreement, the Note, the Mortgage and any other Loan
Documents (as that term is hereinafter defined) including, without limitation,
obligations for the payment of insurance premiums and taxes, assessments and
other impositions with respect to or against the Property; and the full payment
and performance of all Customer's obligations, now or hereafter existing, to
any person who shall heretofore or hereafter deposit any sum of money with
Customer or any agent or escrow agent designated by Customer, on account of any
contract of agreement regarding the purchase of any condominium unit or other
portion of the property, including all renewals, extensions and/or
modifications thereof (all liabilities and obligations of the Customer to FUNB,
pursuant to the foregoing, being hereinafter termed "Obligations of Customer")
provided, however, that if and only if an amount is here specified; to wit:
$279,626.21 $ (LEAVE BLANK, IF LIABILITY HEREUNDER IS UNLIMITED.)
- -----------
then, the maximum liability, jointly and severally, of the undersigned
Guarantors hereunder, at any one time outstanding, with respect to the
aggregate principal amount of the "Obligations of Customer," shall not exceed
the sum of money above specified, plus all interest or Finance Charges, Costs
of Court, penalty interest, late payment charges and the reasonable attorney's
fees of FUNB (the Note, Mortgage, Loan Agreement and all other agreements,
documents and instruments evidencing or securing the obligations of Customer
being herein collectively called the "Loan Documents").
/ / If checked here, this Unconditional Guaranty is secured by a Mortgage,
incorporated herein by reference.
This Guaranty is in addition to and is not intended to supercede any prior
existing Guaranty of Guarantor.
Further, whether or not suit is brought by FUNB to acquire possession of any
collateral of Guarantor or Customer or to enforce collection of any unpaid
balance(s) hereunder, Guarantor expressly hereby agrees to pay all legal
expenses and the reasonable attorney's fees (including those relative to
appellate proceedings, if any) actually incurred by FUNB.
(If no amount is specified in the blank above provided, the joint and several
liability of the undersigned Guarantors hereunder shall be unlimited.)
In order to implement the foregoing and as additional inducements to FUNB,
Guarantor further covenants and agrees:
1. This guaranty is and shall remain an unconditional and continuing
guaranty of payment and not of collection, shall remain in full force and
effect irrespective of any interruption(s) in the business or other dealings
and relations of Customer with FUNB and shall apply to and guarantee the due
and punctual payment of all "Obligations of Customer" due by Customer to FUNB.
To that end, Guarantor hereby expressly waives any right to require FUNB to
bring any action against any Customer or any other person(s) or to require that
resort be had to any security or to any balance(s) of any deposit or other
account(s) or debt(s) or credit(s) on the books of FUNB in favor of Customer or
any other person(s) Guarantor acknowledges that its liabilities and obligations
hereunder are primary rather than secondary, recognizing that Customer is first
above identified as "OBLIGOR" and undersigned are identified first above as
"GUARANTOR(S)", solely for convenience in identification of the parties involved
in this Guaranty Agreement and in the obligation being secured hereby. To that
end and without limiting the generality of the foregoing, undersigned Guarantor
herewith expressly waives any rights he otherwise might have had under
provisions of the law of the state of the FUNB office set forth herein to
require FUNB to attempt to recover against Customer and/or to realize upon any
securities or collateral security which FUNB holds for the obligation evidenced
or secured nhereby. Notwithstanding the satisfaction or performance of the
"Obligations of Customer," Guarantor's liability shall continue to exist for so
long as the satisfaction of the "Obligations of Customer" could be set aside or
such "Obligations of Customer" otherwise be reinstated under the bankruptcy,
insolvency, fraudulent conveyance, debtor relief, or other similar laws of any
Federal, State or other competent jurisdiction.
2. TIME IS OF THE ESSENCE HEREOF. Any notice(s) to Guarantor shall be
sufficiently given, if mailed to the first above stated address(es) of
Guarantor.
3. If any process is issued or ordered to be served upon FUNB, seeking
to seize Customer's and/or Guarantor's rights and/or interests in any deposit
or other account(s) maintained with FUNB, the balance(s) in any such account(s)
shall immediately be deemed to have been and shall be set-off against any and
all "Obligations of Customer" and/or all obligations and liabilities of
Guarantor hereunder, as of the time of the issuance of any such writ or
process; whether or not Customer, Guarantor and/or FUNB shall then have been
served therewith.
4. All moneys available to and/or received by FUNB for application
toward payment of (or reduction of) the "Obligations of Customer" may be
applied by FUNB to such individual debt(s) in such manner, and apportioned in
such amount(s) and at such time(s), as FUNB, in its sole discretion, may deem
suitable or desirable.
(CONTINUED ON REVERSE SIDE)
WITNESS the Hand(s) and Seal(s) of the undersigned, this Unconditional
Guaranty Agreement being executed and delivered on the date first above
written. Each Guarantor has adopted as his seal the word "SEAL" appearing
beside his signature.
CALNETICS CORPORATION
WITNESS MARY LIVINGSTON BY: CLINTON G. GERLACH [SEAL]
------------------------------- ------------------------------
Clinton G. Gerlach,
Chairman of the Board & President
WITNESS [SEAL]
------------------------------ ---------------------------------
(GUARANTOR)
WITNESS [SEAL]
------------------------------ ---------------------------------
(GUARANTOR)
WITNESS [SEAL]
------------------------------ ---------------------------------
(GUARANTOR)
(If Guarantor is a corporation, a Corporate Resolution is required and the
corporate name should be signed by a duly authorized officer, with the Seal of
the Corporation affixed and attested by the Secretary or Assistant Secretary of
the corporation.)
20
CERTIFICATE OF INCUMBENCY
The undersigned, being the Secretary of AGRICULTURAL PRODUCTS, INC., a
California corporation, (the "Corporation"), hereby certifies to the following:
1. The undersigned is the Secretary of the Corporation.
2. The officers and directors of the Corporation are as follows:
Officers
--------
Clinton G. Gerlach Chairman of the Board
Lon Schultz President/Chief
Financial Officer
Mary Livingston Secretary
Directors
---------
/s/ CLINTON G. GERLACH
---------------------------------
/s/ LON SCHULTZ
---------------------------------
---------------------------------
---------------------------------
3. Attached hereto as Exhibit "A" is a true and accurate copy of
the Articles of Incorporation of the Corporation.
5. Attached hereto as Exhibit "B" is a true and accurate copy of
the by-Laws of the Corporation.
Dated this 14 day of April, 1995.
AGRICULTURAL PRODUCTS, INC.
BY /s/ MARY LIVINGSTON
----------------------------
Mary Livingston, Secretary
21
State
of
California
SECRETARY OF STATE
CERTIFICATE OF STATUS
DOMESTIC CORPORATION
I, BILL JONES, Secretary of State of the State of California, hereby
certify:
That on the 21st day of February, 1974, AGRICULTURAL PRODUCTS, INC.
became incorporated under the laws of the State of California by filing its
Articles of Incorporation in this office; and
That no record exists in this office of a certificate of dissolution of
said corporation nor of a court order declaring dissolution thereof, nor of a
merger or consolidation which terminated its existence; and
That said corporation's corporate powers, rights and privileges are not
suspended on the records of this office; and
That according to the records of this office, the said corporation is
authorized to exercise all its corporate powers, rights and privileges and is
in good legal standing in the State of California; and
That no information is available in this office on the financial
condition, business activity or practices of this corporation.
IN WITNESS WHEREOF, I execute this
certificate and affix the Great Seal
of the State of California this
31st day of March, 1995
[SEAL OF THE STATE OF CALIFORNIA]
/s/ BILL JONES
BILL JONES
Secretary of State
22
[FIRST CERTIFIED CORPORATE RESOLUTION FOR BORROWING AUTHORIZATION
UNION LOGO]
I, the undersigned, hereby certify to FIRST UNION NATIONAL BANK OF
FLORIDA that I am
-------------------------------------------------------------
Secretary of AGRICULTURAL PRODUCTS, INC. , a corporation duly organized and
-------------------------------
(Full name of Corporation)
existing under the laws of the State of California; and in good standing and
fully authorized to transact business in the State of Florida; that the
following is a true copy of Resolutions duly adopted by the Board of Directors
of said Corporation at its meeting duly held on the day of February
---------
23, 1995, at which a quorum was present and acted throughout; and that such
Resolutions are in full force and effect, have not been amended or rescinded,
and that there is not provision in the Articles of Incorporation, Charter or
By-Laws of said Corporation limiting the power of the Board of Directors of
said Corporation to pass the following Resolutions, which are in full
conformity with the provisions of said Articles of Incorporation, Charter and
By-Laws:
1. RESOLVED, that / /, ONLY IF CHECKED HERE, ANY TWO - otherwise, EACH; of
the present holders of the following offices and/or positions of this
Corporation and his (their) successors in office or position, to wit:
President
- --------------------------------------------------------------------------------
(Here insert Title(s) of the Office(s) or Position(s) with Corporation)
- --------------------------------------------------------------------------------
is/are hereby authorized, on behalf of, in the name of and for the account of
this Corporation, upon such terms and conditions as he (they) deem desirable,
to borrow money and obtain or continue credit (with or without security) from
First Union National Bank of Florida (hereinafter termed the "Bank"), in such
amounts as he (they) deem desirable, to guarantee the obligations of others to
the Bank, to engage in business transactions of all nature and kind and/or to
enter into all manner and kinds of contractual relationships with said Bank.
2. RESOLVED FURTHER, that (without limiting the generality of the above
resolutions) the above identified or described officers or representatives of
this Corporation are herewith expressly authorized (on behalf of, in the name
of and for the account of this Corporation; and on behalf of, in the name of
and for the account of subsidiary, parent and affiliated corporations): To
pledge, assign, grant a security or other interest in, encumber or mortgage (as
security for payment or performance of any existing or hereafter arising or
contracted liabilities or obligations of said Corporation and of subsidiary,
parent and affiliated corporations to said Bank), and/or to sell, assign or
discount (with or without recourse) any acceptances, Accounts, Chattel Paper,
checks, drafts, contracts, contract rights, Choses in action, general
intangibles, Instruments, Investment Securities, Land Contracts, deeds of
trust, security deeds, real estate mortgages, Security Agreement, Purchase
Money Security Agreements (Conditional Sale Contracts of real and/or personal
property), Real and/or Personal Property Leases, real, personal or mixed
property of said Corporation, Bonds, Certificates of Deposit, moneys now or
hereafter on deposit with said Bank or any other financial institution, or any
other property and/or other instruments or evidences of indebtedness payable
to, owned or held by this Corporation to said Bank; to execute and/or indorse
all of the foregoing documents and any documents as may be necessary or
required by said Bank to evidence or consummate any such indebtedness, business
transactions and/or contractual relationships; and/or to lease and/or purchase
real, personal and/or mixed property from said Bank; and
3. RESOLVED FURTHER, that (without limiting the generality of any of the
foregoing resolutions) this Corporation, through the above identified or
described officers or representatives of this Corporation, is hereby expressly
authorized to enter into, execute and deliver, and perform this Corporation's
obligations under interest rate exchange agreements, interest rate cap
agreements and other interest rate hedging agreements and Instruments with the
Bank on such terms and in such manner as such officers and representatives
shall deem desirable; and such officers and representatives are hereby
authorized, on behalf of, in the name of and for the account of this
Corporation, to execute any and all documents as may be necessary or required
by said Bank in connection with this Corporation's execution, delivery and
performance of any such agreements; and
4. RESOLVED FURTHER, that the Secretary or Assistant Secretary of this
Corporation shall furnish said Bank a certified copy of these Resolutions, and
said Bank is hereby authorized to deal with the above named or described
persons, officers, representatives and/or employees under the authority of
these Resolutions unless and until it shall be expressly notified in writing to
the contrary by this Corporation; and
5. RESOLVED FURTHER, that the Secretary or Assistant Secretary of this
Corporation shall, from time to time hereafter, as changes in the personnel of
said offices, positions, officers, representatives and/or employees of this
Corporation named or described in the foregoing Resolutions are made,
immediately certify such changes to said Bank. Said Bank shall be fully
protected in relying upon such certifications of the Secretary or Assistant
Secretary, and shall be indemnified and saved harmless from any claims,
demands, expenses, losses and/or damages resulting from, or growing out of,
honoring the signature of any officer(s), representative(s), agent(s), or
employee(s) so certified, or refusing to honor any signature not so certified
which is not described or stated in the foregoing Resolutions; and
6. RESOLVED FURTHER, that the Secretary or Assistant Secretary of this
Corporation is authorized and directed to certify to said Bank that the
foregoing Resolutions were duly adopted, and that the provisions thereof are in
full conformity with the Articles of Incorporation, Charter and By-Laws of this
Corporation; and
7. RESOLVED FURTHER, that all transactions by any officers,
representatives, employees or agents of this Corporation, on its behalf and in
its name with the Bank prior to delivery of a certified copy of the foregoing
Resolutions, are, in all respects, hereby ratified, confirmed and adopted, nunc
pro tunc.
I, finally, certify that the following are the persons who now hold the
offices and/or positions referred to in the first RESOLUTION above and that
their bonafide signatures are set forth below:
TYPED OR PRINTED NAMES: TITLES SIGNATURES
Lon Schultz President /s/ LON SCHULTZ
- ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the Seal of
this Corporation, this 14th day of April, 1995.
/s/ MARY LIVINGSTON
-------------------------------
Secretary
[AFFIX CORPORATE
SEAL HERE]
23
CERTIFICATE OF INCUMBENCY
The undersigned, being the Secretary of CALNETICS CORPORATION, a
California corporation, (the "Corporation"), hereby certifies to the following:
1. The undersigned is the Secretary of the Corporation.
2. The officers and directors of the Corporation are as follows:
Officers
--------
Clinton G. Gerlach Chairman of the Board/
President
Michael A. Hornak Vice President
Steven L. Strawn Vice President
Teresa S. Louie Treasurer
Mary Livingston Secretary
Directors
---------
Fred E. Edward
Clinton G. Gerlach
Raymond H. Heller
Michael A. Hornak
Steven L. Strawn
3. Attached hereto as Exhibit "A" is a true and accurate copy of the
Articles of Incorporation of the Corporation.
5. Attached hereto as Exhibit "B" is a true and accurate copy of the
by-Laws of the Corporation.
Dated this 14th day of April, 1995.
CALNETICS CORPORATION
BY /s/ MARY LIVINGSTON
------------------------------------
Mary Livingston, Secretary
24
STATE
OF
CALIFORNIA
SECRETARY OF STATE
CERTIFICATE OF STATUS
DOMESTIC CORPORATION
I, BILL JONES, Secretary of State of the State of California, hereby
certify:
That on the 18th day of July, 1960,
CALNETICS CORPORATION
became incorporated under the laws of the State of California by filing its
Articles of Incorporation in this office; and
That no record exists in this office of a certificate of dissolution of
said corporation nor of a court order declaring dissolution thereof, nor of a
merger or consolidation which terminated its existence; and
That said corporation's corporate powers, rights and privileges are
not suspended on the records of this office; and
That according to the records of this office, the said corporation is
authorized to exercise all its corporate powers, rights and privileges and is
in good legal standing in the State of California; and
That no information is available in this office on the financial
condition, business activity or practices of this corporation.
IN WITNESS WHEREOF; I execute this
certificate and affix the Great Seal
[SEAL OF THE STATE OF CALIFORNIA] of the State of California this
31st day of March, 1995
/s/ BILL JONES
BILL JONES
Secretary of State
25
[FIRST CERTIFIED CORPORATE RESOLUTION FOR BORROWING AUTHORIZATION
UNION LOGO]
I, the undersigned, hereby certify to FIRST UNION NATIONAL BANK OF
FLORIDA that I am
-------------------------------------------------------------
Secretary of CALNETICS CORPORATION , a corporation duly organized and
-------------------------------
(Full name of Corporation)
existing under the laws of the State of California; and in good standing and
fully authorized to transact business in the State of Florida; that the
following is a true copy of Resolutions duly adopted by the Board of Directors
of said Corporation at its meeting duly held on the day of February
---------
23, 1995, at which a quorum was present and acted throughout; and that such
Resolutions are in full force and effect, have not been amended or rescinded,
and that there is not provision in the Articles of Incorporation, Charter or
By-Laws of said Corporation limiting the power of the Board of Directors of
said Corporation to pass the following Resolutions, which are in full
conformity with the provisions of said Articles of Incorporation, Charter and
By-Laws:
1. RESOLVED, that /X/, ONLY IF CHECKED HERE, ANY TWO - otherwise, EACH; of
the present holders of the following offices and/or positions of this
Corporation and his (their) successors in office or position, to wit:
President
- --------------------------------------------------------------------------------
(Here insert Title(s) of the Office(s) or Position(s) with Corporation)
- --------------------------------------------------------------------------------
is/are hereby authorized, on behalf of, in the name of and for the account of
this Corporation, upon such terms and conditions as he (they) deem desirable,
to borrow money and obtain or continue credit (with or without security) from
First Union National Bank of Florida (hereinafter termed the "Bank"), in such
amounts as he (they) deem desirable, to guarantee the obligations of others to
the Bank, to engage in business transactions of all nature and kind and/or to
enter into all manner and kinds of contractual relationships with said Bank.
2. RESOLVED FURTHER, that (without limiting the generality of the above
resolutions) the above identified or described officers or representatives of
this Corporation are herewith expressly authorized (on behalf of, in the name
of and for the account of this Corporation; and on behalf of, in the name of
and for the account of subsidiary, parent and affiliated corporations): To
pledge, assign, grant a security or other interest in, encumber or mortgage (as
security for payment or performance of any existing or hereafter arising or
contracted liabilities or obligations of said Corporation and of subsidiary,
parent and affiliated corporations to said Bank), and/or to sell, assign or
discount (with or without recourse) any acceptances, Accounts, Chattel Paper,
checks, drafts, contracts, contract rights, Choses in action, general
intangibles, Instruments, Investment Securities, Land Contracts, deeds of
trust, security deeds, real estate mortgages, Security Agreement, Purchase
Money Security Agreements (Conditional Sale Contracts of real and/or personal
property), Real and/or Personal Property Leases, real, personal or mixed
property of said Corporation, Bonds, Certificates of Deposit, moneys now or
hereafter on deposit with said Bank or any other financial institution, or any
other property and/or other instruments or evidences of indebtedness payable
to, owned or held by this Corporation to said Bank; to execute and/or indorse
all of the foregoing documents and any documents as may be necessary or
required by said Bank to evidence or consummate any such indebtedness, business
transactions and/or contractual relationships; and/or to lease and/or purchase
real, personal and/or mixed property from said Bank; and
3. RESOLVED FURTHER, that (without limiting the generality of any of the
foregoing resolutions) this Corporation, through the above identified or
described officers or representatives of this Corporation, is hereby expressly
authorized to enter into, execute and deliver, and perform this Corporation's
obligations under interest rate exchange agreements, interest rate cap
agreements and other interest rate hedging agreements and Instruments with the
Bank on such terms and in such manner as such officers and representatives
shall deem desirable; and such officers and representatives are hereby
authorized, on behalf of, in the name of and for the account of this
Corporation, to execute any and all documents as may be necessary or required
by said Bank in connection with this Corporation's execution, delivery and
performance of any such agreements; and
4. RESOLVED FURTHER, that the Secretary or Assistant Secretary of this
Corporation shall furnish said Bank a certified copy of these Resolutions, and
said Bank is hereby authorized to deal with the above named or described
persons, officers, representatives and/or employees under the authority of
these Resolutions unless and until it shall be expressly notified in writing to
the contrary by this Corporation; and
5. RESOLVED FURTHER, that the Secretary or Assistant Secretary of this
Corporation shall, from time to time hereafter, as changes in the personnel of
said offices, positions, officers, representatives and/or employees of this
Corporation named or described in the foregoing Resolutions are made,
immediately certify such changes to said Bank. Said Bank shall be fully
protected in relying upon such certifications of the Secretary or Assistant
Secretary, and shall be indemnified and saved harmless from any claims,
demands, expenses, losses and/or damages resulting from, or growing out of,
honoring the signature of any officer(s), representative(s), agent(s), or
employee(s) so certified, or refusing to honor any signature not so certified
which is not described or stated in the foregoing Resolutions; and
6. RESOLVED FURTHER, that the Secretary or Assistant Secretary of this
Corporation is authorized and directed to certify to said Bank that the
foregoing Resolutions were duly adopted, and that the provisions thereof are in
full conformity with the Articles of Incorporation, Charter and By-Laws of this
Corporation; and
7. RESOLVED FURTHER, that all transactions by any officers,
representatives, employees or agents of this Corporation, on its behalf and in
its name with the Bank prior to delivery of a certified copy of the foregoing
Resolutions, are, in all respects, hereby ratified, confirmed and adopted, nunc
pro tunc.
I, finally, certify that the following are the persons who now hold the
offices and/or positions referred to in the first RESOLUTION above and that
their bonafide signatures are set forth below:
TYPED OR PRINTED NAMES: TITLES SIGNATURES
Chairman of the Board &
Clinton G. Gerlach President /s/ CLINTON G. GERLACH
- ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the Seal of
this Corporation, this 14 day of April, 1995.
/s/ MARY LIVINGSTON
-------------------------------
Mary Livingston, Secretary
[AFFIX CORPORATE
SEAL HERE]
26
FIRST UNION UNCONDITIONAL GUARANTY MARCH 31, 1995
--------------------------
(Date of Execution and
Delivery)
OBLIGOR(S): AGRICULTURAL PRODUCTS, INC., 3857 West Lake Hamilton Drive,
-------------------------------------------------------------------
(Print Full Name) (No. Street or RFD)
Winter Haven, Polk, FL 33881
-------------------------------------------
(City) (County) (State) (Zip)
GUARANTOR(S): CALNETICS CORPORATION, 20401 Prairie Street,
--------------------------------------------------
(Print Full Name) (No. Street or RFD)
Chatsworth, Los Angeles, CA 91311
--------------------------------------------------
(City) (County) (State) (Zip)
OBLIGEE: FIRST UNION NATIONAL BANK OF FLORIDA
P.O. Box 193, 203 Avenue A, N.W., Winter Haven, Polk, FL 33880
---------------------------------------------------------------------
(Mailing Address) (No. and Street) (City) (County) (State) (Zip)
WHEREAS, the above OBLIGOR(S) (hereinafter jointly and severally termed
"Customer"), desire(s) to obtain extensions of credit and/or a continuation of
credit extensions and/or to engage in business transactions and enter into
various contractual relationships and otherwise to deal with FIRST UNION
NATIONAL BANK OF FLORIDA (hereinafter termed "FUNB") and
WHEREAS, FUNB is unwilling to extend or continue to extend credit to and/or
engage in business transactions and enter into various contractual
relationships with, and otherwise to deal with Customer; unless it receives and
unconditional and continuing, joint and several guaranty from the above
identified, undersigned GUARANTOR(S) (hereinafter collectively termed
"Guarantor"), covering all "Obligations of Customer," as hereinafter defined.
NOW, THEREFORE, in consideration of the premises and of other good and valuable
consideration, and in order to induce FUNB to extend or continue to extend
credit to Customer in the principal amount of TWO HUNDRED SEVENTY-NINE THOUSAND
SIX HUNDRED TWENTY-SIX AND 21/100 dollars ($279,626.21), plus interest, as
evidenced by that certain promissory note dated March 31, 1995 in favor of
Lender (the "Note"), and to enter into any loan agreement of even date
therewith executed in conjunction with the transaction (the "Loan Agreement"),
which term shall be deemed to include any construction loan and/or development
agreement),which Note is secured by that certain Mortgage and Security
Agreement of even date therwith encumbering the real and personal property
described therein, (the "Mortgage"), (with or without recourse) pursuant to
which Customer, jointly or severally, is liable as maker, or otherwise, and to
otherwise deal with Customer, Guarantor (jointly and severally, if more than
one) hereby absolutely and unconditionally guarantees to FUNB and to
successors and assigns, the due and punctual payment of all Obligations of
Customer. The full and prompt payment of principal, interest and any other
amounts due or to become due, whether by acceleration or otherwise, under the
Note or the Loan Agreement; the performance of any and all obligations of
Customer under the Loan Agreement, the Note, the Mortgage and any other Loan
Documents (as that term is hereinafter defined) including, without limitation,
obligations for the payment of insurance premiums and taxes, assessments and
other impositions with respect to or against the Property; and the full payment
and performance of all Customer's obligations, now or hereafter existing, to
any person who shall heretofore or hereafter deposit any sum of money with
Customer or any agent or escrow agent designated by Customer, on account of any
contract of agreement regarding the purchase of any condominium unit or other
portion of the property, including all renewals, extensions and/or
modifications thereof (all liabilities and obligations of the Customer to FUNB,
pursuant to the foregoing, being hereinafter termed "Obligations of Customer")
provided, however, that if and only if an amount is here specified; to wit:
$279,626.21 $ (LEAVE BLANK, IF LIABILITY HEREUNDER IS UNLIMITED.)
- -----------
then, the maximum liability, jointly and severally, of the undersigned
Guarantors hereunder, at any one time outstanding, with respect to the
aggregate principal amount of the "Obligations of Customer," shall not exceed
the sum of money above specified, plus all interest or Finance Charges, Costs
of Court, penalty interest, late payment charges and the reasonable attorney's
fees of FUNB (the Note, Mortgage, Loan Agreement and all other agreements,
documents and instruments evidencing or securing the obligations of Customer
being herein collectively called the "Loan Documents").
/ / If checked here, this Unconditional Guaranty is secured by a Mortgage,
incorporated herein by reference.
This Guaranty is in addition to and is not intended to supercede any prior
existing Guaranty of Guarantor.
Further, whether or not suit is brought by FUNB to acquire possession of any
collateral of Guarantor or Customer or to enforce collection of any unpaid
balance(s) hereunder, Guarantor expressly hereby agrees to pay all legal
expenses and the reasonable attorney's fees (including those relative to
appellate proceedings, if any) actually incurred by FUNB.
(If no amount is specified in the blank above provided, the joint and several
liability of the undersigned Guarantors hereunder shall be unlimited.)
In order to implement the foregoing and as additional inducements to FUNB,
Guarantor further covenants and agrees:
1. This guaranty is and shall remain an unconditional and continuing
guaranty of payment and not of collection, shall remain in full force and
effect irrespective of any interruption(s) in the business or other dealings
and relations of Customer with FUNB and shall apply to and guarantee the due
and punctual payment of all "Obligations of Customer" due by Customer to FUNB.
To that end, Guarantor hereby expressly waives any right to require FUNB to
bring any action against any Customer or any other person(s) or to require that
resort be had to any security or to any balance(s) of any deposit or other
account(s) or debt(s) or credit(s) on the books of FUNB in favor of Customer or
any other person(s) Guarantor acknowledges that its liabilities and obligations
hereunder are primary rather than secondary, recognizing that Customer is first
above identified as "OBLIGOR" and undersigned are identified first above as
"GUARANTOR(S)", solely for convenience in identification of the parties involved
in this Guaranty Agreement and in the obligation being secured hereby. To that
end and without limiting the generality of the foregoing, undersigned Guarantor
herwith expressly waives any rights he otherwise might have had under
provisions of the law of the state of the FUNB office set forth herein to
require FUNB to attempt to recover against Customer and/or to realize upon any
securities or collateral security which FUNB holds for the obligations evidenced
or secured nhereby. Notwithstanding the satisfaction or performance of the
"Obligations of Customer," Guarantor's liability shall continue to exist for so
long as the satisfaction of the "Obligations of Customer" could be set aside or
such "Obligations of Customer" otherwise be reinstated under the bankruptcy,
insolvency, fraudulent conveyance, debtor relief, or other similar laws of any
Federal, State or other competent jurisdiction.
2. TIME IS OF THE ESSENCE HEREOF. Any notice(s) to Guarantor shall be
sufficiently given, if mailed to the first above stated address(es) of
Guarantor.
3. If any process is issued or ordered to be served upon FUNB, seeking
to seize Customer's and/or Guarantor's rights and/or interests in any deposit
or other account(s) maintained with FUNB, the balance(s) in any such account(s)
shall immediately be deemed to have been and shall be set-off against any and
all "Obligations of Customer" and/or all obligations and liabilities of
Guarantor hereunder, as of the time of the issuance of any such writ or
process; whether or not Customer, Guarantor and/or FUNB shall then have been
served therewith.
4. All moneys available to and/or received by FUNB for application
toward payment of (or reduction of) the "Obligations of Customer" may be
applied by FUNB to such individual debt(s) in such manner, and apportioned in
such amount(s) and at such time(s), as FUNB, in its sole discretion, may deem
suitable or desirable.
(CONTINUED ON REVERSE SIDE)
WITNESS the Hand(s) and Seal(s) of the undersigned, this Unconditional
Guaranty Agreement being executed and delivered on the date first above
written. Each Guarantor has adopted as his seal the word "SEAL" appearing
beside his signature.
CALNETICS CORPORATION
WITNESS MARY LIVINGSTON BY: CLINTON G. GERLACH [SEAL]
------------------------------- ------------------------------
Clinton G. Gerlach,
Chairman of the Board & President
WITNESS [SEAL]
------------------------------ ---------------------------------
(GUARANTOR)
WITNESS [SEAL]
------------------------------ ---------------------------------
(GUARANTOR)
WITNESS [SEAL]
------------------------------ ---------------------------------
(GUARANTOR)
(If Guarantor is a corporation, a Corporate Resolution is required and the
corporate name should be signed by a duly authorized officer, with the Seal of
the Corporation affixed and attested by the Secretary or Assistant Secretary of
the corporation.)