Exhibit 10.86
GUARANTY AGREEMENT
This Guaranty Agreement dated as of August 31, 1999 (as amended or
otherwise modified from time to time, this "Guaranty") is by FemPartners, Inc.,
a Delaware corporation ("Guarantor") in favor of American Physicians Service
Group, Inc., a Texas corporation ("Lender").
WHEREAS, (i) Lender, Syntera HealthCare Corporation, a Texas
corporation ("Syntera"), Guarantor and FemPartners of Central Texas, Inc., a
Delaware corporation and wholly-owned subsidiary of Guarantor ("Obligor") have
entered into an Agreement and Plan of Merger of even date herewith whereby
Syntera is merging with and into Obligor with Obligor being the surviving
corporation, (ii) certain debt owing to Lender from Syntera is evidenced by the
Promissory Note dated November 1, 1998, and is being contemporaneously amended,
restated and replaced in its entirety by the Replacement Promissory Note dated
of even date herewith (as may be amended and or otherwise modified from time to
time, the "Note"), (iii) Guarantor will directly and indirectly benefit from the
Note, and (iv) as a condition precedent to the consummation of the merger of
Syntera into Obligor, Lender has required that Guarantor guarantee to Lender all
payment obligations of Obligor under the Note.
NOW THEREFORE, Guarantor agrees with Lender as follows:
1. PAYMENT GUARANTY. Guarantor absolutely, irrevocably and
unconditionally guarantees to Lender, and to its successors, endorsees,
transferees and assigns, the prompt and complete payment when due, whether at
the stated maturity, by acceleration or otherwise, of the obligations of Obligor
set forth in the Note (collectively, the "Obligations"). No termination of the
Note shall affect any obligations incurred by Guarantor under this Guaranty at
the time of termination. No notice of the Obligations need be given in any form
to Guarantor at any time and Guarantor waives any such notice and the right to
consent to the Obligations. Guarantor waives any right to require as a condition
to its obligations hereunder that collateral be applied to the Obligations, that
presentment or demand be made upon Obligor or that action be brought against
Obligor or any other person or entity except Guarantor, should Lender seek to
enforce the obligations of Guarantor. Specifically, without limitation,
Guarantor waives any right to require that a judgment previously be rendered
against Obligor or any other person or entity except Guarantor, that Obligor or
any other person or entity be joined in any action against Guarantor or that an
action separate from one against Guarantor be brought against Obligor or any
other person or entity. The obligations of Guarantor are several from those of
Obligor or any other person or entity, and are primary payment obligations
concerning which Guarantor is the principal obligor. If all or any part of the
Obligations are not paid when due, Guarantor hereby guarantees that it will pay
the same to Lender, upon demand, without set-off or counterclaim and without
reduction by reason of any taxes, levies, imposts, charges and withholdings,
restrictions or conditions of any nature that are now or may hereafter be
imposed, levied or assessed by any country, political subdivision or taxing
authority, all of which will be for the account of and paid by Guarantor, and
Lender need not first proceed to preserve, utilize or exhaust any other right or
remedy against Obligor, any other guarantor, any collateral or any other
security that Lender may have in order to obtain payment hereunder. The
obligations of Guarantor hereunder shall in no way be affected or impaired by
reason of the happening from time to time of any of the following: (i)
extensions (whether or not material) of the time for payment of all or any
portion of the Obligations, (ii) the modification or amendment in any manner
(whether or not material) of the Note or the Obligations, (iii) except for
applicable statutes of limitations, any failure, delay or lack of diligence on
the part of Lender, or any other person or entity to enforce, assert or exercise
any right, privilege, power or remedy conferred on Lender or any other person or
entity in the Note or at law, or any action on the part of Lender or such other
person or entity granting indulgence or extension of any kind, (iv) the
settlement or compromise of any Obligations and (v) the status, composition,
structure or name of Obligor change, including, without limitation, by reason of
merger, dissolution, consolidation or reorganization. NOTWITHSTANDING THE
FOREGOING, THE LIABILITY OF GUARANTOR HEREUNDER SHALL BE LIMITED TO DIRECT,
ACTUAL DAMAGES AND GUARANTOR SHALL NOT BE LIABLE UNDER THIS GUARANTY FOR
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS
OR OTHER BUSINESS INTERRUPTION DAMAGES, IN TORT, CONTRACT OR OTHERWISE. Upon 30
Days written notice and with the prior written consent of Lender, which consent
shall not be unreasonably withheld, this Guaranty may be replaced by (x) a
guaranty in substantially similar form made by a guarantor of equal or better
creditworthiness or (y) a letter of credit in favor of Lender in the amount of
the maximum Limit (below defined), issued by a bank and in a form, each of which
shall be reasonably satisfactory to Lender.
2. COSTS AND EXPENSES. In addition to its guarantee of Obligor's
payment of the Obligations, Guarantor shall pay all actual costs and expenses
(including reasonable attorney's fees) paid or incurred by Lender in connection
with the enforcement of this Guaranty.
3. CONTINUING GUARANTY. This is intended to be and shall be construed
as a continuing guarantee and shall remain in full force and effect and shall be
binding in accordance with and to the extent of its terms upon Guarantor and its
successors and assigns, and shall inure to the benefit of Lender, and its
successors, endorsees, transferees and assigns. The obligations of Guarantor
under this Guaranty shall continue in full force and effect and shall remain in
operation until all of the Obligations shall have been paid in full or otherwise
fully satisfied, and continue to be effective or be reinstated, as the case may
be, if at any time payment or other satisfaction of any of the Obligations is
rescinded or must otherwise be restored or returned upon the bankruptcy,
insolvency, or reorganization of Obligor, or otherwise, as though such payment
had not been made or other satisfaction occurred. No invalidity, irregularity or
unenforceability by reason of applicable bankruptcy laws or any other similar
law, or any law or order of any government or government agency purporting to
reduce, amend or otherwise affect, the Obligations, shall impair, affect, be a
defense to or claim against the obligations of Guarantor under this Guaranty.
4. SUBROGATION. Notwithstanding any payment or payments made by
Guarantor under this Guaranty or any setoff or application of funds of Guarantor
by Lender, Guarantor shall not be entitled to be subrogated to any of the rights
of Lender against Obligor or any collateral or other security or guarantee or
right of offset held by Lender for the payment or performance of the
Obligations, nor shall Guarantor seek any reimbursement from Obligor in respect
of payments made by Guarantor under this Guaranty, until all amounts then owing
and any other performance then due to Lender by Obligor for or on account of the
Obligations are paid and satisfied in full. Upon such payment and satisfaction
in full, Guarantor shall be subrogated to all rights of Lender against Obligor
or any collateral or other security or guarantee or right of offset held by
Lender for the payment and performance of the Obligations.
5. SUBORDINATION. Any and all indebtedness of Obligor now or hereafter
owed to or held by Guarantor is hereby subordinated to the Obligations and all
other indebtedness of Obligor to Lender; and such indebtedness of Obligor to
Guarantor, if Lender so requests, shall be collected, enforced and received by
Guarantor as trustee for Lender and be paid over to Lender on account of the
indebtedness of Obligor to Lender but without reducing or affecting in any
manner the liability of Guarantor under the other provisions of this Guaranty.
6. DEFAULT. If Obligor fails or refuses to timely pay any Obligations,
Lender may at its option exercise any or all of its rights, powers and remedies
afforded hereunder and may declare the unpaid amounts of all Obligations then
owing under the Note to be immediately due and payable, and thereupon such
amounts shall be immediately due and payable without presentation and demand for
payment, protest, notice of protest or dishonor, notice of default, notice of
intent to accelerate or notice of acceleration to Guarantor or any other person
or entity, all of which Guarantor waives.
7. NO WAIVER. No failure to exercise and no delay in exercising, on the
part of Lender, any right, power or privilege under this Guaranty shall operate
as a waiver of the right, power or privilege, nor shall any single or partial
exercise of any right, power or privilege preclude any other or further exercise
of the right, power or privilege, or the exercise of any other power or right.
The rights and remedies provided in this Guaranty are cumulative and not
exclusive of any rights or remedies provided by law.
8. NOTICE. All notices and communications made pursuant to this
Guaranty shall be in writing and delivered personally or mailed by certified
mail, postage prepaid and return receipt requested, or sent by facsimile, as
follows:
To Guarantor:
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FemPartners, Inc.
0000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn.: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
To Lender:
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American Physicians Service Group, Inc.
0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx X-000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxxx Xxxx
Facsimile: (000) 000-0000
Notice given by person, delivery or mail shall be effective upon actual receipt.
Notice given by facsimile shall be effective upon actual receipt if received
during recipient's normal business hours or at the beginning of recipient's next
business day after receipt if not received during recipient's normal business
hours. Any party may change its address to which notice is to be given hereunder
by providing notice of same in accordance with this Section 8.
9. MISCELLANEOUS. THIS GUARANTY SHALL IN ALL RESPECTS BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS. Guarantor waives notice of acceptance of
this Guaranty. No term or provision of this Guaranty shall be amended, modified,
altered, waived, supplemented or terminated except in a writing signed by the
parties hereto. This Guaranty shall be binding upon and inure to the benefit of
an be enforceable by the respective successors and assigns of Guarantor and
Lender. This Guaranty embodies the entire agreement and understanding between
Guarantor and Lender and supersedes all prior agreements and understandings
relating to the subject matter hereof. The headings in this Guaranty are for
purposes of reference only, and shall not affect the meaning hereof. This
Guaranty may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one document.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty Agreement
on the date first above written.
FEMPARTNERS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Executive Vice President
