Exhibit (a)(13)
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Chemung Canal Trust Company
Xxx Xxxxxxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, 00000
(000) 000-0000
"LENDER"
COMMERCIAL CONTINUING
GUARANTY
(LIMITED)
XXXXXXXXX XXXXXXXX
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Xxxxxx Xxxxx Xxxxxx X Xxxxxxx
Xxxxxxxxx X Xxxxxxx
ADDRESS ADDRESS
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850 Euclid Avenue 000 Xxxxx X Xxxxxxxxx Xxxx
Xxxxxx, XX 00000-0000 Xxxxxx, XX 00000
TELEPHONE NO. IDENTIFICATION NO. TELEPHONE NO. IDENTIFICATION NO.
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734-0102 735-4555
1. Consideration. This Guaranty is being executed to induce Xxxxxx
indicated above to enter into one or more loans or other financial
accommodations with or on behalf of Borrower.
2. Guaranty. Guarantor hereby unconditionally guarantees the prompt and
full payment and performance of Xxxxxxxx's present and future, joint and/or
several, direct and indirect, absolute and contingent, express and implied,
indebtedness, liabilities, obligations and covenants (cumulatively
"indebtedness") to Lender when due (whether upon maturity or by demand,
acceleration or otherwise) as follows:
|X| LIMITED TO AN AMOUNT: Guarantor's liabilities and obligations under this
Guaranty ("Obligations") shall include all present or future written
agreements between Borrower and Lender (whether executed for the same or
different purposes), but shall be limited to the principal amount of
ONE MILLION AND NO/100 Dollars, together with all interest and all of
Lender's expenses and costs, incurred in connection with the indebtedness,
including any amendments, extensions, modifications, renewals, replacements
or substitutions thereto. The limitation on the liability of Guarantor shall
not apply to any costs incurred by Lender in connection with paragraph 24
hereof.
|_| LIMITED TO A PERCENTAGE: Guarantor's liabilities and obligations under
this Guaranty ("Obligations") shall include all present and future written
agreements between Borrower and Lender (whether executed for the same or
different purposes) evidencing the indebtedness, but shall be limited to
________% of the indebtedness (as the same may change from time to time),
together with all interest thereon and all of Lender's expenses and costs
incurred in connection with the indebtedness. This limitation on the
liability of Guarantor shall not apply to any costs incurred by Lender
pursuant to paragraph 24 hereof.
|X| LIMITED TO THE FOLLOWING DESCRIBED NOTES/AGREEMENTS: Guarantor's
liabilities and obligations under this Guaranty ("Obligations") shall be
limited to the following described promissory notes and agreements between
Borrower and Lender, together with all interest and all of Lender's
expenses and costs, incurred in connection with the indebtedness,
including any amendments, extensions, modifications, renewals,
replacements or substitutions thereto:
INTEREST RATE PRINCIPAL AMOUNT/CREDIT LIMIT FUNDING/AGREEMENT DATE MATURITY/DATE CUSTOMER NUMBER LOAN NUMBER
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VARIABLE $750,000 05/08/98 05/01/03
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3. SECURITY INTEREST: [X] If checked, the Obligations under this Guaranty
are secured by a lien on and/or security interest in the property described in
the documents executed in connection with this Guaranty as well as any other
property designated as security now or in the future.
4. ABSOLUTE AND CONTINUING NATURE OF GUARANTY. Guarantor's Obligations are
absolute and continuing and shall not be affected or impaired if Lender amends,
renews, extends, compromises, exchanges, fails to exercise, impairs or releases
any of the indebtedness owed by any Borrower, Co-guarantor, or third party or
any of Lender's rights against any Borrower, Co-guarantor, third party, or
collateral. In addition, the Obligations shall not be affected or impaired by
the death, incompetency, termination, dissolution, insolvency, business
cessation, or other financial deterioration or any Borrower, Guarantor, or third
party or by any state of facts or the happening from time to time of any event,
including without limitation: The invalidity, irregularity, illegality or
unenforceability of, or any defect in, the promissory note or any agreement or
any collateral security for the Obligation (the "Collateral"); Any present or
future law or order of any government (de jure or de facto) or of any agency
thereof purporting to reduce, amend or otherwise affect the indebtedness of the
Borrower or any other obligor or to any other terms of payment; The waiver,
compromise, settlement, release or termination of any or all of the Obligations,
covenants or agreements of the Borrower under the promissory note or any
agreement or of any party named as a Guarantor under this Guaranty; The failure
to give notice to the Guarantor of the occurrence of an event of default under
the promissory note or any other agreement; The loss, release, sale, exchange,
surrender or other change in any Collateral; The extension of the time for
payment of any principal of or interest on the indebtedness or of the time for
performance of any obligations, covenants or agreements under or arising out of
the promissory note or any agreement or the extension or the renewal of any
thereof; The modification or amendment (whether material or otherwise) of any
obligation, covenant or agreement set forth in the promissory note or any
agreement; The taking of, or the omission to take, any of the actions referred
to in the promissory note or any agreement; Any failure, omission or delay on
the part of the Lender to enforce, assert or exercise any right, power or
remedy conferred on the Lender in the promissory note or any agreement; The
voluntary or involuntary liquidation, dissolution, sale or other disposition of
all or substantially all the assets, marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition with creditors or readjustment of, or
other similar proceedings affecting the Guarantor or the Borrower or any of
their assets, or any allegation or contest of the validity of the promissory
note or any agreement; The default or failure of the Guarantor to fully perform
any Obligations set forth in this Guaranty; Any event or action that would, in
the absence of this paragraph, result in the release or discharge of the
Guarantor from the performance or observance of any Obligation, covenant or
agreement contained in this Guaranty; and Any other circumstances which might
otherwise constitute a legal or equitable discharge or defense of a surety or a
guarantor.
5. DIRECT AND UNCONDITIONAL NATURE OF GUARANTY. Guarantor's Obligations
are direct and unconditional and may be enforced without requiring Lender to
exercise, enforce, or exhaust any right or remedy against any Borrower,
Co-guarantor, third party, or any security or the Collateral.
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GUARANTOR ACKNOWLEDGES GUARANTOR HAS READ, UNDERSTANDS, AND AGREES TO THE TERMS
AND CONDITIONS OF THIS AGREEMENT INCLUDING THE TERMS AND CONDITIONS ON THE
REVERSE SIDE. XXXXXXXXX HAS EXECUTED THIS AGREEMENT WITH THE INTENT TO BE
LEGALLY BOUND. GUARANTOR ACKNOWLEDGES RECEIPT OF AN EXACT COPY OF THIS
AGREEMENT.
DATED:
GUARANTOR: Xxxxxx Xxxxx GUARANTOR:
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Xxxxxx Xxxxx
GUARANTOR: GUARANTOR:
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6. WAIVER. Guarantor hereby waives notice of the acceptance of this
Guaranty; notice of present and future extensions of credit and other financial
accommodations by Lender to any Borrower; notice of the obtaining or release of
any guaranty, assignment, or other security for any of the indebtedness notices
of presentment for payment, demand, protest, dishonor, default, and nonpayment
pertaining to the indebtedness and this Guaranty and all other notices and
demands pertaining to the indebtedness and this Guaranty; any and all defenses
to payment as permitted by law.
7. WAIVER OF JURY TRIAL. XXXXXX AND GUARANTOR KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO
ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THE
INDEBTEDNESS GUARANTEED HEREBY, THIS GUARANTY AND ANY OTHER AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER MAKING THE LOAN OR
LOANS GUARANTEED HEREBY.
8. NATURE OF GUARANTY. This Guaranty is a guaranty of payment and not of
collection and the Guarantor hereby waives the right to require that any action
be brought first against the Borrower or any other Guarantor, or any security,
or to require that resort be made to any security or to any balance of any
deposit account on credit on the books of the Lender in favor of the Borrower or
of any Guarantor.
9. DEFAULT. Guarantor shall be in default under this Guaranty in the event
that any Borrower or Guarantor:
(a) fails to pay any amount under this Guaranty or any indebtedness to
Lender when due (whether such amount is due at maturity by
acceleration or otherwise);
(b) fails to perform any obligation or breaches any warranty or covenant
to Lender contained in any loan document or this Guaranty or any
other present or future promissory note or written agreement;
(c) provides or causes any false or misleading signature or
representation to be provided to Lender;
(d) allows any collateral for the indebtedness or this Guaranty to be
destroyed, lost or stolen, or damaged in any material respect;
(e) permits the entry or service of any garnishment, judgment, tax levy,
attachment or lien against Xxxxxxxx, Guarantor, or any of their
property;
(f) dies, becomes legally incompetent, is dissolved or terminated,
ceases to operate its business, becomes insolvent, makes an
assignment for the benefit of creditors, or becomes the subject of
any bankruptcy, insolvency or debtor rehabilitation proceeding; or
(g) causes Lender to deem itself insecure due to a significant decline
in the value of any security securing the indebtedness or any
Collateral securing this Guaranty.
10. RIGHTS OF LENDER ON DEFAULT. If there is a default under this
Guaranty, Lender shall be entitled to exercise one or more of the following
remedies without notice or demand (except as required by law):
(a) to declare Guarantor's obligations under this Guaranty immediately
due and payable in full;
(b) to collect the outstanding Obligations under this Guaranty with or
without resorting to judicial process;
(c) to take possession of any Collateral in any manner permitted by law;
(d) to require Guarantor to deliver and make available to Lender any
Collateral at a place reasonably convenient to Guarantor and Lender;
(e) to sell, lease or otherwise dispose of any Collateral and collect
any deficiency balance with or without resorting to judicial
process;
(f) to set-off Guarantor's obligations under this Guaranty against any
amounts due to Guarantor including, but not limited to, monies,
instruments, and deposit accounts maintained with Lender; and
(g) to exercise all other rights available to Lender under any other
written agreement or applicable law.
Xxxxxx's rights are cumulative and may be exercised together, separately, and in
any order. Xxxxxx's remedies under this paragraph are in addition to those
available at common law, including, but not limited to, the right to set-off.
11. SUBORDINATION. The payment of any present or future indebtedness of
Borrower to Guarantor will be postponed and subordinated to the payment in full
of any present or future indebtedness of Borrower to Lender during the term of
this Agreement. In the event that Guarantor receives any monies, instruments, or
other remittances to be applied against Borrower's obligations to Guarantor,
Guarantor will hold these funds in trust for Lender and immediately endorse or
assign (if necessary) and deliver these monies, instruments and other
remittances to Lender. Guarantor agrees that Xxxxxx shall be preferred to
Guarantor in any assignment for the benefit of Xxxxxxxx's creditors in any
bankruptcy, insolvency, liquidation, or reorganization proceeding commenced by
or against Borrower in any federal or state court.
12. INDEPENDENT INVESTIGATION. Guarantor's execution and delivery to
Lender of this Guaranty is based solely upon Guarantor's independent
investigation of Xxxxxxxx's financial condition and not upon any written or oral
representation of Lender in any manner. Guarantor assumes full responsibility
for obtaining any additional information regarding Xxxxxxxx's financial
condition and Lender shall not be required to furnish Guarantor with any
information of any kind regarding Borrower's financial condition.
13. ACCEPTANCE OF RISKS. Guarantor acknowledges the absolute and
continuing nature of this Guaranty and voluntarily accepts the full range of
risks associated herewith including, but not limited to, the risk that
Borrower's financial condition shall deteriorate or, if this Guaranty is
unlimited, the risk that Borrower shall incur additional indebtedness to Lender
in the future.
14. SUBROGATION. The Guarantor hereby irrevocably waives and releases the
Borrower from all "claims" (as defined in Section 101(5) of the Bankruptcy Code)
to which the Guarantor is or would, at any time, be entitled by virtue of its
obligations under this Guaranty, including, without limitation, any right of
subrogation (whether contractual, under Section 509 of the Bankruptcy Code or
otherwise), reimbursement, contribution, exoneration or similar right against
the Borrower.
15. APPLICATION OF PAYMENTS. Lender will be entitled to apply any payments
or other monies received from Borrower, any third party, or any collateral
against Xxxxxxxx's present and future indebtedness to Lender in any order.
16. ESSENCE OF TIME. Guarantor and Xxxxxx agree that time is of the
essence.
17. TERMINATION. The Guaranty shall remain in full force and effect until
Xxxxxx executes and delivers to Guarantor a written release thereof.
18. ASSIGNMENT. Guarantor shall not be entitled to assign any of its
rights or Obligations described in this Guaranty without Xxxxxx's prior written
consent which may be withheld by Xxxxxx in its sole discretion. Lender shall be
entitled to assign some or all of its rights and remedies described in this
Guaranty without notice to or the prior consent of Guarantor in any manner.
Unless the Lender shall otherwise consent in writing, the Lender shall have an
unimpaired right prior and superior to that of any assignee, to enforce this
Guaranty for the benefit of the Lender, as to those Obligations that the Lender
has not assigned.
19. MODIFICATION AND WAIVER. The modification or waiver of any of
Guarantor's Obligations or Lender's rights under this Guaranty must be contained
in a writing signed by Xxxxxx. Lender may delay in exercising or fail to
exercise any of its rights without causing a waiver of those rights. A waiver on
one occasion shall not constitute a waiver on any other occasion.
20. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon and inure
to the benefit of Guarantor and Xxxxxx and their respective successors, assigns,
trustees, receivers, administrators, personal representatives, legatees, and
devisees.
21. NOTICE. Any notice or other communications to be provided under this
Guaranty shall be in writing and sent to the parties at the addresses described
in the Guaranty or such other addresses as the parties may designate in writing
from time to time.
22. SEVERABILITY. If any provision of this Guaranty violates the law or is
unenforceable, the rest of the Guaranty shall remain valid.
23. APPLICABLE LAW. This Guaranty shall be governed by the laws of the
state indicated in Lender's address. Guarantor consents to the jurisdiction and
venue of any court located in such state in the event of any legal proceeding
under this Guaranty.
24. COLLECTION COSTS. If Xxxxxx hires an attorney to assist in collecting
any amount due or enforcing any right or remedy under this Guaranty, Guarantor
agrees to pay Xxxxxx's reasonable attorneys' fees, legal expenses and other
costs as permitted by law.
25. REPRESENTATIONS OF GUARANTOR. Guarantor acknowledges receipt of
reasonably equivalent value in consideration for the execution of this Guaranty
and represents that, after giving effect to this Guaranty, the fair market value
of Guarantor's assets exceeds Guarantor's total liabilities, including
contingent, subordinate and unliquidated liabilities, that Guarantor has
sufficient cash flow to meet debts as they mature, and that Guarantor does not
have unreasonably small capital. Guarantor represents that all required director
and shareholder consents to enter into this Guaranty have been obtained.
26. MISCELLANEOUS. This Guaranty is executed in connection with a
commercial or agricultural loan. Guarantor will provide Lender with a current
financial statement upon request. All references to Guarantor in this Guaranty
shall include all entities or persons signing this Guaranty. If there is more
than one Guarantor, their obligations shall be joint and several. This Guaranty
and any related documents represent the complete and integrated understanding
between Guarantor and Lender pertaining to the terms and conditions of those
documents.
27. ADDITIONAL TERMS.
