GUARANTY OF PAYMENT AND PERFORMANCE
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("Guaranty")
Dated as of February 27, 2001
1. FOR VALUE RECEIVED and in order to induce BANK ONE, KENTUCKY, NA,
a national banking association, and its successors and assigns, 000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (the "Bank"), to enter into
that certain Third Amendment to Loan Agreement of even date and to continue
to extend credit to COMMONWEALTH PREMIUM FINANCE CORPORATION (the
"Borrower"), the undersigned, UNIFIED FINANCIAL SERVICES, INC., (the
"Guarantor") does hereby personally and unconditionally guarantee to the
holder of the Renewal Revolving Credit Note dated as of June 28, 2000, and
made by Borrower payable to the order of Bank in the original principal
amount of $2,500,000.00 (the "Note") the due and punctual payment of all
installments of principal and interest now or in the future due under the
Note, as and when the same shall be due and payable thereunder in accordance
with its terms, and whether the same be declared due by the holder of the
Note prior to its stated maturity date by virtue of default thereunder. The
undersigned further guarantees the prompt performance by Borrower of all
non-monetary undertakings, covenants and agreements to be performed by
Borrower under the Note, and all obligations of Borrower under the Loan
Agreement as amended by the Third Amendment thereto.
2. Guarantor consents and agrees that the whole or any part of the
security now or hereafter held for the Note may be exchanged, compromised,
surrendered or released from time to time; that the time or place of payment
of the Note or of any security therefor may be exchanged or extended, in
whole or in part, to a time certain or otherwise, and the Note may be
renewed or accelerated, in whole or in part; that Borrower may be extended
further loans and be granted indulgences generally; that any of the
provisions of the Note, or of any instrument securing or pertaining to the
security for the same, may be modified or waived (either expressly or
through tacit acquiescence); that any party liable for the payment of the
Note may be granted indulgences or released; that neither the death,
insolvency, bankruptcy, dissolution, nor disability of Borrower or of
Guarantor shall affect the obligations hereunder of Guarantor; that no claim
need be asserted against the personal representatives, guardian, trustee in
bankruptcy or receiver of any deceased, incompetent, bankrupt or insolvent
Borrower or guarantor; that any deposit balance to the credit of Borrower,
Guarantor or any other party liable for payment of the Note or liable upon
any security therefor may be released from time to time in whole or in part,
at, before or after the stated, extended or accelerated maturity date of the
Note; and that the undersigned Guarantor shall remain bound hereunder,
notwithstanding any such exchange, compromise, surrender, extension,
renewal, acceleration, modification, waiver, indulgence, release or other
action, all of which may be affected without notice to or further assent or
agreement by Guarantor.
3. Guarantor expressly waives:
(a) Notice of acceptance of this Guaranty;
(b) Presentment and demand for payment of the Note;
(c) Protest and notice of protest, dishonor or default to Guarantor or
to any other party with respect to the Note or any security for the Note;
(d) Demand for payment under this Guaranty;
(e) Notice of disposition of any security for the Note; and
(f) all rights of indemnity, exoneration, reimbursement, contribution
and/or subrogation of Guarantor against Borrower.
4. This is a guaranty of payment as to monetary obligations and not of
collection. The liability of Guarantor under this Guaranty shall be direct
and immediate and not conditional or contingent upon the pursuit of any
remedies against Borrower or any other guarantor or other person nor against
the security or liens available to the holder for the payment of the Note.
Guarantor waives any claim to marshaling of assets and waives any right to
require that an action be brought against Borrower or any other person prior
to action against Guarantor hereunder and waives any right to require that
resort be had to any security for the Note or to any balance of any deposit
account or credit on the books of the holder of the Note in favor of
Borrower or any other party prior to action by the holder of the Note
against Guarantor hereunder. If the Note is partially paid through the
election of the holder thereof to pursue any of the remedies mentioned in
this literary paragraph or if the Note is otherwise partially paid,
Guarantor shall remain personally liable for the entire unpaid principal
balance of, and all accrued interest on, the Note.
5. The Note shall constitute the primary independent and continuing
obligation of Guarantor, who shall be liable for payment of the debt
evidenced by the Note, notwithstanding the partial or total invalidity of
the Note.
6. The obligations of Guarantor under this Guaranty shall not be subject
to any counterclaim, set off, deduction or defense based upon any claim
Guarantor may have against Borrower or Bank, and the obligations of
Guarantor under this Guaranty shall remain in full force and effect, without
regard to, and shall not be released, discharged or in any way modified or
affected by, any circumstance or condition (whether or not Guarantor shall
have any knowledge or notice thereof) including, but not limited to, any
bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation or similar proceeding with respect to Borrower or
its properties or its creditors, or any action taken by any trustee or
receiver or by any court in any such proceeding.
7. In the event of any default by Borrower under the Note, Guarantor shall
pay to Bank, to the extent allowable by law, such further amount as shall be
sufficient to fully reimburse Bank for all of its costs and expenses of
enforcing its rights and remedies under the Note including, without limitation,
Bank's reasonable attorneys' fees and court costs, and all of same shall be
evidenced by the Note and this Guaranty.
8. This Guaranty shall be construed in accordance with and governed by the
laws of the Commonwealth of Kentucky, without reference to its principles of
conflicts of laws.
9. GUARANTOR HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG THEM ARISING OUT OF
OR IN ANY WAY
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RELATED TO THIS GUARANTY, ANY OTHER LOAN DOCUMENT OR ANY RELATIONSHIP
BETWEEN BANK AND BORROWER. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK
TO PROVIDE THE FINANCING DESCRIBED HEREIN OR IN THE OTHER LOAN DOCUMENTS.
10. Guarantor agrees that the sole proper venue for the determination of
any litigation commenced by either Guarantor or Bank on any basis shall be
in a court of competent jurisdiction which is located in Fayette County,
Kentucky, and the parties hereby expressly declare that any other venue
shall be improper and Guarantor expressly waives any right to a
determination of any such litigation against Guarantor by a court in any
other venue. Guarantor further agrees that service of process by any
judicial officer or by registered or certified U.S. mail shall establish
personal jurisdiction over Guarantor, and Guarantor waives any rights under
the laws of any state to object to jurisdiction within the Commonwealth of
Kentucky. The aforesaid means of obtaining personal jurisdiction and
perfecting service of process are not intended to be exclusive, but are
cumulative and in addition to all other means of obtaining personal
jurisdiction and perfecting service of process now or hereafter provided by
the laws of the Commonwealth of Kentucky or by any other state in an action
brought by Bank in such state. Provided, however, nothing herein shall in
any way be deemed to limit the ability of Bank to serve any writs, process
or summons in any other manner permitted by applicable law or to obtain
jurisdiction over Guarantor in such other jurisdictions and in such manner
as may be permitted by applicable law.
11. The undersigned does hereby agree and acknowledge that the maximum
aggregate liability of Guarantor shall be the sum of Two Million Five
Hundred Thousand and 00/100 Dollars ($2,500,000.00), plus interest accruing
on said amount, plus fees, charges and costs of collecting the guaranteed
indebtedness (including reasonable attorneys' fees).
12. This Guaranty shall terminate on April 30, 2002. Provided, however,
the undersigned acknowledges and agrees that such termination shall not
affect its liability with respect to: (a) obligations created or incurred
prior to such date (which specifically includes the Note), or (b) extensions
or renewals of, interest accruing on, or fees, costs or expenses incurred
with respect to such obligations (which specifically includes the Note), on
or after such date.
13. If any payment made on the Note shall be required to be repaid or
refunded by Bank as a result of any bankruptcy or insolvency of Borrower
or of Guarantor or by virtue of any claim of preference, invalidity,
unenforceability or right of rescission, Guarantor hereby acknowledges and
agrees that Guarantor shall remain liable for the amount of such payment
refunded, to the extent provided herein, as if such payment had never been
made by Borrower or by Guarantor to Bank.
14. This Guaranty shall remain fully enforceable irrespective of any claim,
defense or counterclaim which Borrower may or could assert as to the Note
including, but not limited to, failure of consideration, breach of warranty,
payment, statute of frauds, statute of limitations, fraud, bankruptcy, and
usury, all of which Guarantor hereby waives along with any standing by
Guarantor
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to assert any said claim, defense or counterclaim. This Guaranty is in
addition to and not in lieu of, nor does it supercede, any prior Guaranties
signed by Guarantor.
15. Guarantor has, to its satisfaction, independently investigated: (a)
Borrower's credit history; (b) Borrower's payment history with Bank; (c)
Borrower's past, current and projected financial condition; and (d) the
sufficiency of any collateral supporting Borrower's obligations under the
Note. Guarantor represents and warrants that it has relied exclusively on
his own independent investigation of Borrower for its decision to guarantee
the Note. Guarantor agrees that it has sufficient knowledge of Borrower to
make an informed decision about this Guaranty, and that Bank has no duty or
obligation to disclose any information in its possession or control about
Borrower to Guarantor.
16. In the event that any one or more of the provisions contained herein
shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect
any other provision hereof and this Guaranty shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
17. The provisions of this Guaranty shall be binding upon Guarantor and
its, successors, and assigns and shall inure to the benefit of the holder of
the Note, and its successors, endorsees and assigns.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty to be
effective as of the date and year first above written.
UNIFIED FINANCIAL SERVICES, INC.
By: /s/ Xxxx X. Xxxx
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Title: President
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