GUARANTY
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IN CONSIDERATION of the sum of One Dollar ($1.00), cash in hand paid, and
other valuable consideration, as well as for the purpose of seeking to induce
BRANCH BANKING AND TRUST COMPANY, having a principal office at 0000 Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000 (hereinafter termed the "Bank"), to
extend credit to ________________, a ___________ corporation (hereinafter termed
the "Principal"), the undersigned (hereinafter termed the "Guarantor") does
hereby absolutely and unconditionally guarantee to said Bank and to its
endorsers, transferees, successors or assigns of either this guaranty or any of
the obligations secured hereunder, the prompt payment and performance, according
to their respective terms, of all liabilities (as hereinafter defined) of the
Principal to the Bank.
1. The term "Liability" or "Liabilities" as used herein shall include, without
limitation, all of the obligations of the Guarantor hereunder, and all
liabilities and obligations of Principal to Bank arising from or in
connection with a Commitment Letter dated July 18, 2005 between Principal
and Bank, and all payment and performance obligations of Principal under
the Loan Documents executed pursuant to the Commitment Letter. This
guaranty is additional and supplemental to any and all other guaranties
heretofore and hereafter executed by any Guarantor for benefit of Bank,
whether or not relating to the Liabilities, and shall not supersede or be
superseded by any other document or guaranty executed by any Guarantor or
any other person or entity for any purpose.
2. The Guarantor waives notice of acceptance of this guaranty and notice of
any Liability to which it may apply, and waives presentment, demand for
payment, protest, notice of dishonor or nonpayment of any Liabilities and
any suit or the taking of other action by Bank against and any other notice
to any party liable thereon (including the Guarantor).
3. Bank may at any time and from time to time without notice to the Guarantor
(except as required by law), without incurring responsibility to the
Guarantor, without impairing, releasing or otherwise affecting the
obligations of the Guarantor, in whole or in part, and without the
endorsement or execution by the Guarantor of any additional consent, waiver
or guaranty (a) change the manner, place or terms of payment, and change or
extend the time of or renew or alter, any Liability or installment thereof,
or any security therefor, and may lend additional monies or extend
additional credit to Principal, with or without security, thereby creating
new Liabilities, the payment of which shall be guaranteed hereunder, and
the guaranty herein made shall apply to the Liabilities as so changed,
extended, renewed, increased or otherwise altered; (b) sell, exchange,
release, surrender, realize upon or otherwise deal with in any manner and
in any order any property at any time pledged or mortgaged to secure the
Liabilities and any offset thereagainst; (c) exercise or refrain from
exercising any rights against Principal or others (including the Guarantor)
or act or refrain from acting in any other manner; (d) settle or compromise
any Liability or any security therefor and may subordinate the payment of
all or any part thereof to the payment of any Liability (whether or not
due) of Principal to creditors of Principal other than Bank and the
Guarantor; and (e) apply
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any sums from any sources to any Liability without regard to any
Liabilities remaining unpaid.
4. No invalidity, irregularity or unenforceability of all or any part of the
Liabilities or of any security therefor shall affect, impair or be a
defense to this guaranty, and this guaranty is a primary and absolute
obligation of the Guarantor.
5. This guaranty is a continuing one, and all Liabilities to which it applies
or may apply under the terms hereof shall be conclusively presumed to have
been created in reliance hereon. The death or insanity of any Guarantor
shall have the effect of a notice of termination only after the Bank has
actually received written notice from such Guarantor's legal
representative; provided, however, that no notice of such death or insanity
shall affect, in any manner, rights arising under this guaranty with
respect to Liabilities that shall have been created, contracted, assumed or
incurred prior to receipt by Bank of written notice of such death or
insanity, or Liabilities that shall have been created, contracted for,
assumed or incurred after receipt of such written notice pursuant to any
agreement entered into by Bank prior to receipt of such notice, and the
estate of such Guarantor shall then remain liable for any such Liabilities,
and the sole effect of such notice of such death or insanity shall be to
exclude (as to that Guarantor only) from this guaranty Liabilities
thereafter arising that are unconnected with Liabilities theretofore
arising or transactions theretofore entered into. The obligations of any
other Guarantor shall remain unaffected by the death or insanity of any one
or more Guarantors.
6. Notwithstanding anything to the contrary contained herein, this guaranty
shall stand as and for the Guarantor's guaranty of those certain credits
granted by Bank to Principal evidenced by that certain revolving line of
credit promissory note of Principal to Bank dated of even date herewith in
the original principal amount of _____ MILLION AND NO/100 DOLLARS
($___________) according to the terms thereof, and to all renewals,
extensions, and modifications thereof, plus interest thereon, and any
disbursements made for the payment of taxes, levies, or insurance on the
mortgaged property, and for maintenance, repair, protection, and
preservation of the mortgaged property, with interest on such
disbursements. Bank, by its acceptance hereof, agrees that upon payment to
Bank in full of the herein described indebtedness, this guaranty shall be
of no further force and effect.
7. All notices provided to be given to Bank herein shall be sent by registered
or certified mail, return receipt requested, to the address shown in the
preamble to this agreement.
8. Any and all rights and claims of the Guarantor against Principal or any of
its property shall be subordinate and subject in right of payment to the
prior payment in full of all Liabilities.
9. Bank at all times, and from time to time, following any material adverse
change in the financial condition of any one of the Guarantor shall have
the right to require the Guarantor to deliver to Bank, as security for the
Liabilities, collateral security, original or additional, satisfactory to
Bank.
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10. As security for the Liabilities, Bank is hereby given a lien upon, security
title to and a security interest in all property of the Guarantor now or at
any time hereafter in possession of Bank in any capacity whatsoever, and
whether joint or by the entireties, including but not limited to any
balance or share of any deposit, account, trust, agency or special account,
or items of monies of the Guarantor now or hereafter in the possession or
control of or otherwise with Bank, to include all dividends and
distributions thereon or other rights in connection therewith, and Bank
shall have such right to such property as authorized by law. Without
limiting the generality of the foregoing, Bank shall have a prior perfected
security interest to secure the Liabilities and may, at any time or from
time to time at its option and without notice: (a) appropriate and apply
towards the payment of any of the Liabilities the balance of any such
account of the Guarantor, and (b) transfer into its own name or that of its
nominee any such property in the possession or custody of Bank.
11. The Guarantor shall be in default hereunder upon: (a) non-payment of any
Liability when due; (b) failure of Principal or the Guarantor to perform
any agreement creating or otherwise affecting any Liability or any
provision hereof, or to pay in full, when due, any other obligation of
Principal or the Guarantor; (c) the dissolution, death or insanity,
termination of existence, insolvency, or business failure of Principal or
the Guarantor, appointment of a receiver of any part of the property of
Principal or of any material part of the property of Guarantor, assignment
for the benefit of creditors or the commencement of any proceedings in
bankruptcy or insolvency by Principal or by the Guarantor or the failure to
timely contest to or to dismiss within thirty (30) days of filing, any
involuntary proceeding seeking the adjudication of Principal, or the
Guarantor as bankrupt or insolvent; (d) the entry of a final, unappealable
judgment having a material adverse effect against Principal or the
Guarantor; (e) the taking of possession of any substantial part of the
property of Principal or the Guarantor at the instance of any governmental
authority; (f) the merger, consolidation or reorganization of Principal or
the Guarantor; (g) the determination by Bank that a material adverse change
has occurred in the financial condition of Principal or the Guarantor from
the conditions set forth in the most recent financial statement of any such
party heretofore furnished to Bank or from the condition of such party as
heretofore most recently disclosed to Bank in any manner; or (h) falsity in
any material respect of, or any material omission in any representation or
statement made to Bank by or on behalf of Principal or the Guarantor in
connection with any Liability or other obligation of such parties.
12. Upon the occurrence of any default hereunder, Bank shall have all of the
remedies of a creditor and to the extent applicable, of a secured party,
under all applicable law. Without limiting the generality of the foregoing,
Bank may, at its option and without notice or demand: (a) declare any
Liability accelerated and due and payable at once, and (b) take possession
of any collateral security wherever located, and sell, resell, assign,
transfer and deliver all or any part of said property of Principal or the
Guarantor, at any public or private sale, for cash or on credit, and upon
any such sale, Bank, unless prohibited by law the provisions of which
cannot be waived, may purchase all or any part of said property to be sold,
free from and discharged of all trusts, claims, right of redemption and
equities of the Principal or Guarantor whatsoever; and (c) set off
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against any or all Liabilities or other obligations of the Guarantor all
money owed by Bank in any capacity to the Guarantor whether or not due, and
also set off against all other Liabilities of Principal or obligations of
the Guarantor to Bank all money owed by Bank in any capacity to any
Principal or the Guarantor, and Bank shall be deemed to have exercised such
right of setoff and to have made a charge against any such money
immediately upon the occurrence of such default although made or entered on
the books subsequent thereto. Until all of the obligations of Principal to
Bank have been paid and performed in full, Guarantor shall have no right of
subrogation to Bank against Principal, and Guarantor hereby waives any
rights to enforce any remedy which Bank may have against Principal and any
rights to participate in any security for the note.
13. Guarantor shall pay all costs of collection and reasonable attorneys' fees,
including reasonable attorneys' fees of any suit out of court, in trial, on
appeal, in bankruptcy proceedings or otherwise, incurred or paid by Bank in
enforcing the payment of any Liability or enforcing or preserving any right
or interest of Bank hereunder, including the collection, sale or delivery
of any collateral security from time to time pledged hereunder, and after
deducting such fees, costs and expenses from the proceeds of sale or
collection, Bank may apply any residue to pay any of the Liabilities and
the Guarantor shall continue to be liable for any deficiency with interest,
which shall remain a Liability.
14. If claim is ever made upon Bank for repayment or recovery of any amount or
amounts received by Bank in payment or on account of any of the Liabilities
and Bank repays all or part of said amount by reason of any judgment,
decree or order of any court or administrative body having jurisdiction
over Bank or any of its property or any settlement or compromise of any
such claim effected by Bank with any such claimant (including Principal),
then the Guarantor agrees that any such judgment, decree, order, settlement
or compromise shall be binding upon the Guarantor, notwithstanding any
revocation hereof or the cancellation of any note or other instrument
evidencing any Liability, and the Guarantor shall be and remain liable to
Bank hereunder for the amount so repaid or recovered to the same extent as
if such amount had never originally been received by Bank.
15. Any acknowledgment, new promise, payment of principal or interest, or
otherwise, whether by Principal or others (including the Guarantor), with
respect to any of the Liabilities shall, if the statute of limitations in
favor of the Guarantor against Bank shall have commenced to run, toll the
running of such statute of limitations and, if the period of such statute
of limitations shall have expired, prevent the operation of such statute of
limitations.
16. Bank shall not be bound to take any steps necessary to preserve any rights
in any of the property of the Guarantor against prior parties who may be
liable in connection therewith, and the Guarantor hereby agrees to take any
such steps. Bank may, nevertheless, at any time after and during the
continuance of a default (a) take any action it may deem appropriate for
the care or preservation of such property or of any rights of the Guarantor
or Bank therein; (b) demand, sue for, collect or receive any money or
property at any time due, payable or receivable on account of or in
exchange
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for any property of the Guarantor; (c) compromise and settle with any
person liable on such property, or (d) extend the time of payment or
otherwise change the terms thereof as to any party liable thereon, all
without notice to, without incurring responsibility to, and without
affecting any of the obligations of the Guarantor.
17. No delay on the part of Bank in exercising any of its options, powers or
rights, or partial or single exercise thereof, shall constitute a waiver
thereof. No waiver of any of its rights hereunder, and no modification or
amendment of this guaranty, shall be deemed to be made by Bank unless the
same shall be in writing, duly signed on behalf of Bank, and each such
waiver, if any, shall apply only with respect to the specific instance
involved, and shall in no way impair the rights of Bank or the obligations
of the Guarantor to Bank in any other respect at any other time.
18. Bank shall not be required to proceed first against Principal, or any other
person, firm or corporation, whether primarily or secondarily liable, or
against any collateral security held by it, before resorting to the
Guarantor for payment, and the Guarantor shall not be entitled to assert as
a defense to the enforceability of the guaranty set forth herein any
defense of Principal with respect to any Liability.
19. Guarantor hereby subordinates any and all indebtedness of Principal now or
hereafter owed to Guarantor to all indebtedness of Principal to Bank, and
agrees with Bank that Guarantor shall not demand or accept any payment of
principal or interest from Principal, shall not claim any offset or other
reduction of Guarantor's obligations hereunder because of any such
indebtedness and shall not take any action to obtain any of the security
described in and encumbered by the security instruments; provided, however,
that, if Bank so requests, such indebtedness shall be collected, enforced
and received by Guarantor as trustee for Bank and be paid over to Bank on
account of the indebtedness of Principal to Bank, but without reducing or
affecting in any manner the Liability of Guarantor under the other
provisions of this Guaranty.
20. Each Guarantor warrants and represents to Bank that all financial
statements heretofore delivered by said Guarantor to Bank are true and
correct in all respects as of the date hereof.
a. Guarantor shall promptly, from time to time, furnish Bank with such
financial reports and data as Bank may request.
b. Bank shall have no duty to pass on to Guarantor at any time its
knowledge about the financial affairs or condition of Principal or of
any other Guarantor of the Liabilities. Guarantor warrants that it has
independent means to keep itself informed about these matters.
c. The Bank is hereby authorized to deliver a copy of any financial
statements, tax returns or any other information relating to the
business operations or financial condition of any Guarantor which may
be furnished to it or come to its attention pursuant to the Loan
Documents or otherwise, to any regulatory body or agency having
jurisdiction over Bank or to any person which shall, or shall have the
right
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or obligation to, succeed to all or any part of Bank's interest (or
any interest) in the Loan Documents.
21. This guaranty may not be changed orally or by implication, and no
obligation of Guarantor can be released or waived by Bank or any officer or
agent of Bank, except by a writing, signed by a duly authorized officer of
Bank. This guaranty shall be irrevocable by Guarantor until all
indebtedness guaranteed hereby has been completely repaid and all
obligations and undertakings of Principal under, by reason of, or pursuant
to the note and loan documents have been completely performed.
22. If from any circumstances whatsoever fulfillment of any provisions of this
guaranty, at the time performance of such provision shall be due, shall
involve transcending the limit of validity prescribed by any applicable
usury statute or any other applicable law as of the date hereof, with
regard to obligations of like character and amount, then ipso facto the
obligation to be fulfilled shall be reduced to the limit of such validity,
so that in no event shall any exaction be possible under this guaranty that
is in excess of the limit of such validity as of the date hereof, but such
obligation shall be fulfilled to the limit of such validity. The provisions
of this paragraph shall control over every other provision of this
guaranty.
23. The failure of any other person to sign this guaranty shall not release or
affect the obligations or liability of the Guarantor. If more than one
party executes this Guaranty, the obligations of the Guarantor hereunder
shall be joint and several and the term "Guarantor" shall include each as
well as all of them. This Guaranty may be executed in any number of
counterparts, each of which shall be deemed an original instrument, but all
such counterparts together shall constitute one and the same instrument.
24. The term "Guarantor" wherever used herein shall mean the Guarantor or any
one or more of them. Anyone executing this guaranty shall be bound by the
terms hereof without regard to execution by anyone else. This guaranty is
binding upon the Guarantor, his, their, or its executors, administrators,
successors or assigns, and shall inure to the benefit of Bank, its
successors, endorsees or assigns. This Guaranty shall in no event be
impaired by any change which may arise by reason of the death of Principal
or Guarantor, if individuals, or by reason of the dissolution of Principal
or Guarantor, if Principal or Guarantor is a corporation or partnership.
25. Notwithstanding anything to the contrary in this guaranty, the Guarantor
hereby irrevocably waives all rights it may have at law or in equity
(including, without limitation, any law subrogating the Guarantor to the
rights of the Bank) to seek contribution, indemnification, or any other
form of reimbursement from the Principal, or any other person now or
hereafter primarily liable for any obligation of the Principal to the Bank,
for any disbursement made by the Guarantor under or in connection with this
guarantee or otherwise.
26. This agreement has been delivered in the State of Florida and shall be
construed in accordance with the laws of Florida. Wherever possible, each
provision of this agreement shall be interpreted in such manner as to be
effective and valid under
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applicable law, but if any provision of this agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this agreement.
To the extent permitted by applicable law, the Guarantor hereby waives any
provision of law that renders any provision hereof prohibited or
unenforceable in any respect. Guarantor, whether or not a Florida resident,
hereby waives any plea or claim of lack of personal jurisdiction or
improper venue in any action, suit or proceeding brought upon to enforce
this Guaranty or the Liabilities. The Guarantor specifically authorizes any
such action to be instituted and prosecuted in any Circuit Court in
Florida, or United States District Court of Florida, at the election of
Bank, where venue would lie and be proper against any Principal.
27. XXXXXXXXX AND BANK HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY
AND ANY 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 THE BANK MAKING THE LOAN OR EXTENSION OF CREDIT EVIDENCED BY
THIS AGREEMENT.
Signatures on following page
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Dated this August _____, 2005.
Signed, sealed and delivered
in the presence of: "GUARANTOR"
____________________________,
a _________ corporation
____________________________________ By:_______________________________
Print Name: ________________________ XXXXXXX X. XXXXXX
Treasurer
____________________________________
Print Name: ________________________
STATE OF FLORIDA
COUNTY OF ______________
The foregoing instrument was executed and acknowledged before me this
August ____, 2005, by XXXXXXX X. XXXXXX, as Treasurer of ___________________, a
_____ corporation, on its behalf.
________________________________
(SEAL) Signature of Notary Public
________________________________
Name of Notary Public
(Typed, Printed or stamped)
Personally Known ____________ OR Produced Identification _____________________
Type of Identification Produced: ______________________________________________
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