Guaranty and Suretyship Agreement
Exhibit
10.8
THIS GUARANTY AND SURETYSHIP AGREEMENT (this “Guaranty”) is made and entered into as of
this 11 day of February, 2011, by LIBERATOR HEALTH AND WELLNESS, INC. (the “Guarantor”), with
an address at 0000 XX Xxxx Xxxx Xxx, Xxxxxx, Xxxxxxx 00000, in consideration of the extension of
credit by PNC BANK, NATIONAL ASSOCIATION (the “Bank”), with an address at 000 Xxxxxx Xxxxxx, Xxxx
Xxxx Xxxxx, Xxxxxxx 00000, to LIBERATOR MEDICAL HOLDINGS, INC. and LIBERATOR MEDICAL SUPPLY, INC.
(the “Borrower”), and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged.
1. Guaranty of Obligations. The Guarantor hereby unconditionally guarantees, as a
primary obligor, and becomes surety for, the prompt payment and performance of all loans, advances,
debts, liabilities, obligations, covenants and duties owing by the Borrower to the Bank or to any
other direct or indirect subsidiary of The PNC Financial Services Group, Inc., of any kind or
nature, present or future (including any interest accruing thereon after maturity, or after the
filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding relating to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or indirect (including those acquired by
assignment or participation), absolute or contingent, joint or several, due or to become due, now
existing or hereafter arising, whether or not (i) evidenced by any note, guaranty or other
instrument, (ii) arising under any agreement, instrument or document, (iii) for the payment of
money, (iv) arising by reason of an extension of credit, opening of a letter of credit, loan,
equipment lease or guarantee, (v) under any interest or currency swap, future, option or other
interest rate protection or similar agreement, (vi) under or by reason of any foreign currency
transaction, forward, option or other similar transaction providing for the purchase of one
currency in exchange for the sale of another currency, or in any other manner, or (vii) arising
out of overdrafts on deposit or other accounts or out of electronic funds transfers (whether by
wire transfer or through automated clearing houses or otherwise) or out of the return unpaid of, or
other failure of the Bank to receive final payment for, any check, item, instrument, payment order
or other deposit or credit to a deposit or other account, or out of the Bank’s non-receipt of or
inability to collect funds or otherwise not being made whole in connection with depository or other
similar arrangements; and any amendments, extensions, renewals and increases of or to any of the
foregoing, and all costs and expenses of the Bank incurred in the documentation, negotiation,
modification, enforcement, collection and otherwise in connection with any of the foregoing,
including reasonable attorneys’ fees and expenses (collectively, the “Obligations”). If the
Borrower defaults under any such Obligations, the Guarantor will pay the amount due to the Bank.
2. Nature of Guaranty; Waivers. This is a guaranty of payment and not of collection
and the Bank shall not be required or obligated, as a condition of the Guarantor’s liability, to
make any demand upon or to pursue any of its rights against the Borrower, or to pursue any rights
which may be available to it with respect to any other person who may be liable for the payment of
the Obligations.
This is an absolute, unconditional, irrevocable and continuing guaranty and will remain in
full force and effect until all of the Obligations have been indefeasibly paid in full, and the
Bank has terminated this Guaranty. This Guaranty will remain in full force and effect even if there
is no principal balance outstanding under the Obligations at a particular time or from time to
time. This Guaranty will not be affected by any surrender, exchange, acceptance, compromise or
release by the Bank of any other party, or any other guaranty or any security held by it for any of
the Obligations, by any failure of the Bank to take any steps to perfect or maintain its lien or
security interest in or to preserve its rights to any security or other collateral for any of the
Obligations or any guaranty, or by any irregularity, unenforceability or invalidity of any of the
Obligations or any part thereof or any security or other guaranty thereof. The Guarantor’s
obligations hereunder shall not be affected, modified
Form 9A — MI/DC/FL (NCOJ) Rev. 6/10
or impaired by any counterclaim, set-off,
recoupment, deduction or defense based upon any claim the Guarantor may have (directly or
indirectly) against the Borrower or the Bank, except payment or performance of the Obligations.
Notice of acceptance of this Guaranty, notice of extensions of credit to the Borrower from
time to time, notice of default, diligence, presentment, notice of dishonor, protest, demand for
payment, and any defense based upon the Bank’s failure to comply with the notice requirements under
Sections 9-611 and 9-612 of the Uniform Commercial Code as in effect from time to time are hereby
waived. The Guarantor waives all defenses based on suretyship or impairment of collateral.
The Bank at any time and from time to time, without notice to or the consent of the Guarantor,
and without impairing or releasing, discharging or modifying the Guarantor’s liabilities hereunder,
may (a) change the manner, place, time or terms of payment or performance of or interest rates on,
or other terms relating to, any of the Obligations; (b) renew, substitute, modify, amend or alter,
or grant consents or waivers relating to any of the Obligations, any other guaranties, or any
security for any Obligations or guaranties; (c) apply any and all payments by whomever paid or
however realized including any proceeds of any collateral, to any Obligations of the Borrower in
such order, manner and amount as the Bank may determine in its sole discretion; (d) settle,
compromise or deal with any other person, including the Borrower or the Guarantor, with respect to
any Obligations in such manner as the Bank deems appropriate in its sole discretion; (e)
substitute, exchange or release any security or guaranty; or (f) take such actions and exercise
such remedies hereunder as provided herein.
3. Repayments or Recovery from the Bank. If any demand is made at any time upon the
Bank for the repayment or recovery of any amount received by it in payment or on account of any of
the Obligations and if the Bank repays all or any part of such amount by reason of any judgment,
decree or order of any court or administrative body or by reason of any settlement or compromise of
any such demand, the Guarantor will be and remain liable hereunder for the amount so repaid or
recovered to the same extent as if such amount had never been received originally by the Bank. The
provisions of this section will be and remain effective notwithstanding any contrary action which
may have been taken by the Guarantor in reliance upon such payment, and any such contrary action so
taken will be without prejudice to the Bank’s rights hereunder and will be deemed to have been
conditioned upon such payment having become final and irrevocable.
4. Financial Statements. Unless compliance is waived in writing by the Bank or until
all of the Obligations have been paid in full, the Guarantor will promptly submit to the Bank such
information relating to the Guarantor’s affairs (including but not limited to annual financial
statements and tax returns for the Guarantor) or any security for the Guaranty as the Bank may
reasonably request.
5. Enforceability of Obligations. No modification, limitation or discharge of the
Obligations arising out of or by virtue of any bankruptcy, reorganization or similar proceeding for
relief of debtors under federal or state law will affect, modify, limit or discharge the
Guarantor’s liability in any manner whatsoever and this Guaranty will remain and continue in full
force and effect and will be enforceable against the Guarantor to the same extent and with the same
force and effect as if any such proceeding had not been instituted. The Guarantor waives all
rights and benefits which might accrue to it by reason of any such proceeding and will be liable to
the full extent hereunder, irrespective of any modification, limitation or discharge of the
liability of the Borrower that may result from any such proceeding.
6. Events of Default. The occurrence of any of the following shall be an “Event of
Default”: (i) any Event of Default (as defined in any of the Obligations); (ii) any default under
any of the Obligations that does not have a defined set of “Events of Default” and the lapse of any
notice or cure period provided in such Obligations with respect to such default; (iii) demand by
the Bank under any of the Obligations that have a demand feature; (iv) the Guarantor’s failure to
perform any of its obligations hereunder; (v) the falsity, inaccuracy or material breach by the
Guarantor of any written warranty, representation or statement made or
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furnished to the Bank by or on behalf of the Guarantor; or (vi) the termination or attempted termination of this Guaranty.
Upon the occurrence of any Event of Default, (a) the Guarantor shall pay to the Bank the amount of
the Obligations; or (b) on demand of the Bank, the Guarantor shall immediately deposit with the
Bank, in U.S. dollars, all amounts due or to become due under the Obligations, and the Bank may at
any time use such funds to repay the Obligations; or (c) the Bank in its discretion may exercise
with respect to any collateral any one or more of the rights and remedies provided a secured party under the applicable version of the Uniform Commercial
Code; or (d) the Bank in its discretion may exercise from time to time any other rights and
remedies available to it at law, in equity or otherwise.
7. Right of Setoff. In addition to all liens upon and rights of setoff against the
Guarantor’s money, securities or other property given to the Bank by law, the Bank shall have, with
respect to the Guarantor’s obligations to the Bank under this Guaranty and to the extent permitted
by law, a contractual possessory security interest in and a contractual right of setoff against,
and the Guarantor hereby grants Bank a security interest in, and hereby assigns, conveys, delivers,
pledges and transfers to the Bank all of the Guarantor’s right, title and interest in and to, all
of the Guarantor’s deposits, moneys, securities and other property now or hereafter in the
possession of or on deposit with, or in transit to, the Bank or any other direct or indirect
subsidiary of The PNC Financial Services Group, Inc., whether held in a general or special account
or deposit, whether held jointly with someone else, or whether held for safekeeping or otherwise,
excluding, however, all XXX, Xxxxx, and trust accounts. Every such security interest and right of
setoff may be exercised without demand upon or notice to the Guarantor. Every such right of setoff
shall be deemed to have been exercised immediately upon the occurrence of an Event of Default
hereunder without any action of the Bank, although the Bank may enter such setoff on its books and
records at a later time.
8. Collateral. This Guaranty is secured by the property described in any collateral
security documents which the Guarantor executes and delivers to the Bank and by such other
collateral as previously may have been or may in the future be granted to the Bank to secure any
Obligations of the Guarantor to the Bank.
9. Costs. To the extent that the Bank incurs any costs or expenses in protecting or
enforcing its rights under the Obligations or this Guaranty, including reasonable attorneys’ fees
and the costs and expenses of litigation, such costs and expenses will be due on demand, will be
included in the Obligations and will bear interest from the incurring or payment thereof at the
Default Rate (as defined in any of the Obligations).
10. Postponement of Subrogation. Until the Obligations are indefeasibly paid in full,
expire, are terminated and are not subject to any right of revocation or rescission, the Guarantor
postpones and subordinates in favor of the Bank or its designee (and any assignee or potential
assignee) any and all rights which the Guarantor may have to (a) assert any claim whatsoever
against the Borrower based on subrogation, exoneration, reimbursement, or indemnity or any right of
recourse to security for the Obligations with respect to payments made hereunder, and (b) any
realization on any property of the Borrower, including participation in any marshalling of the
Borrower’s assets.
11. Notices. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder (“Notices”) must be in writing and will be effective
upon receipt. Notices may be given in any manner to which the Bank and the Guarantor may
separately agree, including electronic mail. Without limiting the foregoing, first-class mail,
facsimile transmission and commercial courier service are hereby agreed to as acceptable methods
for giving Notices. Regardless of the manner in which provided, Notices may be sent to addresses
for the Bank and the Guarantor as set forth above or to such other address as either may give to
the other for such purpose in accordance with this section.
12. Preservation of Rights. No delay or omission on the Bank’s part to exercise any
right or power arising hereunder will impair any such right or power or be considered a waiver of
any such right or power, nor will the Bank’s action or inaction impair any such right or power.
The Bank’s rights and remedies hereunder are cumulative and not exclusive of any other rights or
remedies which the Bank may have under other agreements,
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at law or in equity. The Bank may proceed in any order against the Borrower, the Guarantor or any other obligor of, or any collateral
securing, the Obligations.
13. Illegality. If any provision contained in this Guaranty should be invalid,
illegal or unenforceable in any respect, it shall not affect or impair the validity, legality and
enforceability of the remaining provisions of this Guaranty.
14. Changes in Writing. No modification, amendment or waiver of, or consent to any
departure by the Guarantor from, any provision of this Guaranty will be effective unless made in a
writing signed by the Bank, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on the Guarantor will entitle
the Guarantor to any other or further notice or demand in the same, similar or other circumstance.
15. Entire Agreement. This Guaranty (including the documents and instruments referred
to herein) constitutes the entire agreement and supersedes all other prior agreements and
understandings, both written and oral, between the Guarantor and the Bank with respect to the
subject matter hereof; provided, however, that this Guaranty is in addition to, and not in
substitution for, any other guarantees from the Guarantor to the Bank.
16. Successors and Assigns. This Guaranty will be binding upon and inure to the
benefit of the Guarantor and the Bank and their respective heirs, executors, administrators,
successors and assigns; provided, however, that the Guarantor may not assign this
Guaranty in whole or in part without the Bank’s prior written consent and the Bank at any time may
assign this Guaranty in whole or in part.
17. Interpretation. In this Guaranty, unless the Bank and the Guarantor otherwise
agree in writing, the singular includes the plural and the plural the singular; references to
statutes are to be construed as including all statutory provisions consolidating, amending or
replacing the statute referred to; the word “or” shall be deemed to include “and/or”, the words
“including”, “includes” and “include” shall be deemed to be followed by the words “without
limitation”; and references to sections or exhibits are to those of this Guaranty. Section
headings in this Guaranty are included for convenience of reference only and shall not constitute a
part of this Guaranty for any other purpose. If this Guaranty is executed by more than one party
as Guarantor, the obligations of such persons or entities will be joint and several.
18. Indemnity. The Guarantor agrees to indemnify each of the Bank, each legal entity,
if any, who controls, is controlled by or is under common control with the Bank, and each of their
respective directors, officers and employees (the “Indemnified Parties”), and to defend and hold
each Indemnified Party harmless from and against, any and all claims, damages, losses, liabilities
and expenses (including all fees and charges of internal or external counsel with whom any
Indemnified Party may consult and all expenses of litigation and preparation therefor) which any
Indemnified Party may incur or which may be asserted against any Indemnified Party by any person,
entity or governmental authority (including any person or entity claiming derivatively on behalf of
the Guarantor), in connection with or arising out of or relating to the matters referred to in this
Guaranty, whether (a) arising from or incurred in connection with any breach of a representation,
warranty or covenant by the Guarantor, or (b) arising out of or resulting from any suit, action,
claim, proceeding or governmental investigation, pending or threatened, whether based on statute,
regulation or order, or tort, or contract or otherwise, before any court or governmental authority;
provided, however, that the foregoing indemnity agreement shall not apply to any
claims, damages, losses, liabilities and expenses solely attributable to an Indemnified Party’s
gross negligence or willful misconduct. The indemnity agreement contained in this Section shall
survive the termination of this Guaranty and assignment of any rights hereunder. The Guarantor may
participate at its expense in the defense of any such claim.
19. Governing Law and Jurisdiction. This Guaranty has been delivered to and accepted
by the Bank and will be deemed to be made in the State where the Bank’s office indicated above is
located. This Guaranty will be interpreted and the rights and liabilities of the Bank and the
Guarantor
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determined in accordance with the laws of the State where the Bank’s office indicated
above is located, excluding its conflict of laws rules. The Guarantor hereby irrevocably
consents to the exclusive jurisdiction of any state or federal court in the county or judicial
district where the Bank’s office indicated above is located; provided that nothing contained in
this Guaranty will prevent the Bank from bringing any action, enforcing any award or judgment or
exercising any rights against the Guarantor individually, against any security or against any
property of the Guarantor within any other county, state or other foreign or domestic jurisdiction.
The Guarantor acknowledges and agrees that the venue provided above is the most convenient forum for both the Bank and the Guarantor. The Guarantor waives any objection to venue and any objection
based on a more convenient forum in any action instituted under this Guaranty.
20. Equal Credit Opportunity Act. If the Guarantor is not an “applicant for credit”
under Section 202.2 (e) of the Equal Credit Opportunity Act of 1974 (“ECOA”), the Guarantor
acknowledges that (i) this Guaranty has been executed to provide credit support for the
Obligations, and (ii) the Guarantor was not required to execute this Guaranty in violation of
Section 202.7(d) of the ECOA.
21. Authorization to Obtain Credit Reports. By signing below, each Guarantor who is
an individual provides written authorization to the Bank or its designee (and any assignee or
potential assignee) to obtain the Guarantor’s personal credit profile from one or more national
credit bureaus. Such authorization shall extend to obtaining a credit profile in considering this
Guaranty and subsequently for the purposes of update, renewal or extension of such credit or
additional credit and for reviewing or collecting the resulting account.
22. Waiver of Jury Trial. The Guarantor irrevocably waives any and all right the
Guarantor may have to a trial by jury in any action, proceeding or claim of any nature relating to
this Guaranty, any documents executed in connection with this Guaranty or any transaction
contemplated in any of such documents. The Guarantor acknowledges that the foregoing waiver is
knowing and voluntary.
The Guarantor acknowledges that it has read and understood all the provisions of this
Guaranty, including the waiver of jury trial, and has been advised by counsel as necessary or
appropriate.
WITNESS the due execution hereof as a document under seal, as of the date first written above,
with the intent to be legally bound hereby.
| WITNESS / ATTEST: | LIBERATOR HEALTH AND WELLNESS, INC. | |||||||
/s/ Xxxxx X. Xxxxxx
|
By: | /s/ Xxxx Xxxxxxxxx | ||||||
Print Name: Xxxxx X. Xxxxxx
|
Xxxx Xxxxxxxxx | (SEAL) | ||||||
Title: Officer
|
Chief Executive Officer | |||||||
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