UNLIMITED GUARANTY AGREEMENT
Exhibit
10.5
THIS
GUARANTY AGREEMENT
("Guaranty")
is
made as of the 20th
day of
February, 2007, by Guarantor (as hereinafter defined) for the benefit of Lender
(as hereinafter defined).
1. Definitions.
As used
in this Guaranty, the following terms shall have the meanings indicated
below:
(a) The
term
"Lender"
shall
mean AMEGY BANK NATIONAL ASSOCIATION, a national banking association, whose
address for notice purposes is the following: 0000 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000.
(b) The
term
"Borrower"
shall
mean the following (whether one or more): XXXXXXXXX’X PHARMACY, INC., a Texas
corporation, ALVIN MEDICINE MAN, LP, a Texas limited partnership, ANGLETON
MEDICINE MAN, LP, a Texas limited partnership, and SANTA FE MEDICINE MAN, LP,
a
Texas limited partnership.
(c) The
term
"Guaranteed
Indebtedness"
shall
mean (i) all principal indebtedness owing by Borrower to Lender now existing
or
hereafter, (ii) all accrued but unpaid interest on any of the indebtedness
owing
under the instrument described in (i) above, (iii) all obligations and other
indebtedness of Borrower to Lender under
any
documents, instruments and/or agreements evidencing, securing, governing and/or
pertaining to all or any part of the indebtedness described in (i) and (ii)
above (collectively, the "Loan
Documents"),
(iv)
all costs and expenses incurred by Lender in connection with the collection
and
administration of all or any part of the indebtedness and obligations described
in (i), (ii) and (iii) above or the protection or preservation of, or
realization upon, the collateral securing all or any part of such indebtedness
and obligations, including without limitation all reasonable attorneys' fees,
and (v) all renewals, extensions, modifications and rearrangements of the
indebtedness and obligations described in (i), (ii), (iii) and (iv)
above.
(d) The
term
"Guarantor"
shall
mean _______________, a __________(Entity), whose address for notice
purposes is the following: 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000-0000.
2. Obligations.
As an
inducement to Lender to extend or continue to extend credit and other financial
accommodations to Borrower, Guarantor, for value received, does hereby
unconditionally and absolutely guarantee the prompt and full payment and
performance of the Guaranteed Indebtedness when due or declared to be due and
at
all times thereafter.
3. Character
of Obligations.
(a) This
is
an absolute, continuing and unconditional guaranty of payment and not of
collection and if at any time or from time to time there is no outstanding
Guaranteed Indebtedness, the obligations of Guarantor with respect to any and
all Guaranteed Indebtedness incurred thereafter shall not be affected. This
Guaranty and the Guarantor's obligations hereunder are irrevocable. All of
the
Guaranteed Indebtedness shall be conclusively presumed to have been made or
acquired in acceptance hereof. Guarantor shall be liable, jointly and severally,
with Borrower and any other guarantor of all or any part of the Guaranteed
Indebtedness.
(b) Lender
may, at its sole discretion and without impairing its rights hereunder, apply
any payments on the Guaranteed Indebtedness that Lender receives to that portion
of the Guaranteed Indebtedness, if any, not guaranteed hereunder.
(c) Guarantor
agrees that its obligations hereunder shall not be released, diminished,
impaired, reduced or affected by the existence of any other guaranty or the
payment by any other guarantor of all or any part of the Guaranteed
Indebtedness.
(d) Guarantor's
obligations hereunder shall not be released, diminished, impaired, reduced
or
affected by, nor shall any provision contained herein be deemed to be a
limitation upon, the amount of credit which Lender may extend to Borrower,
the
number of transactions between Lender and Borrower, payments by Borrower to
Lender or Lender's allocation of payments by Borrower.
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4. Representations
and Warranties.
Guarantor hereby represents and warrants the following to Lender:
(a) This
Guaranty may reasonably be expected to benefit, directly or indirectly,
Guarantor; and
(b) Guarantor
is familiar with, and has independently reviewed the books and records
regarding, the financial condition of Borrower and is familiar with the value
of
any and all collateral intended to be security for the payment of all or any
part of the Guaranteed Indebtedness; provided, however, Guarantor is not relying
on such financial condition or collateral as an inducement to enter into this
Guaranty; and
(c) Guarantor
has adequate means to obtain from Borrower on a continuing basis information
concerning the financial condition of Borrower and Guarantor is not relying
on
Lender to provide such information to Guarantor either now or in the future;
and
(d) Guarantor
has the power and authority to execute, deliver and perform this Guaranty and
any other agreements executed by Guarantor contemporaneously herewith, and
the
execution, delivery and performance of this Guaranty and any other agreements
executed by Guarantor contemporaneously herewith do not and will not violate
(i)
any agreement or instrument to which Guarantor is a party, or (ii) any law,
rule, regulation or order of any governmental authority to which Guarantor
is
subject; and
(e) Neither
Lender nor any other party has made any representation, warranty or statement
to
Guarantor in order to induce Guarantor to execute this Guaranty;
and
(f) The
financial statements and other financial information regarding Guarantor
heretofore and hereafter delivered to Lender are and shall be true and correct
in all material respects and fairly present the financial position of Guarantor
as of the dates thereof, and no material adverse change has occurred in the
financial condition of Guarantor reflected in the financial statements and
other
financial information regarding Guarantor heretofore delivered to Lender since
the date of the last statement thereof; and
(g) As
of the
date hereof, and after giving effect to this Guaranty and the obligations
evidenced hereby, (i) Guarantor is and will be solvent, (ii) the fair saleable
value of Guarantor's assets exceeds and will continue to exceed its liabilities
(both fixed and contingent), and (iii) Guarantor is and will continue to be
able
to pay its debts as they mature.
5. Covenants.
Guarantor hereby covenants and agrees with Lender as follows:
(a) Guarantor
shall not, so long as its obligations under this Guaranty continue, transfer
or
pledge any material portion of its assets for less than full and adequate
consideration; and
(b) Guarantor
shall promptly furnish to Lender on a timely basis the financial statements
and
other financial information of Guarantor as set forth in that certain Loan
Agreement of even date herewith, by and between Borrowers and Lenders, as the
same may be amended from time to time; and
(c) Guarantor
shall comply with all terms and provisions of the Loan Documents that apply
to
Guarantor; and
(d) Guarantor
shall promptly inform Lender of (i) any litigation or governmental investigation
against Guarantor or affecting any security for all or any part of the
Guaranteed Indebtedness or this Guaranty which, if determined adversely, might
have a material adverse effect upon the financial condition of Guarantor or
upon
such security or might cause a default under any of the Loan Documents, (ii)
any
claim or controversy which might become the subject of such litigation or
governmental investigation, and (iii) any material adverse change in the
financial condition of Guarantor.
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6. Consent
and Waiver.
(a) Guarantor
waives (i) promptness, diligence and notice of acceptance of this Guaranty
and
notice of the incurring of any obligation, indebtedness or liability to which
this Guaranty applies or may apply and waives presentment for payment, notice
of
nonpayment, protest, demand, notice of protest, notice of intent to accelerate,
notice of acceleration, notice of dishonor, diligence in enforcement and
indulgences of every kind, (ii) the taking of any other action by Lender,
including without limitation giving any notice of default or any other notice
to, or making any demand on, Borrower, any other guarantor of all or any part
of
the Guaranteed Indebtedness or any other party, and (iii) to the maximum extent
allowed by law the provisions of §51.003 of the Texas Property Code, as in
effect on the date of this Guaranty or as it may be amended from time to
time.
(b) Guarantor
waives any rights Guarantor has under, or any requirements imposed by, Chapter
34 of the Texas Business and Commerce Code, as in effect on the date of this
Guaranty or as it may be amended from time to time.
(c) Lender
may at any time, without the consent of or notice to Guarantor, without
incurring responsibility to Guarantor and without impairing, releasing, reducing
or affecting the obligations of Guarantor hereunder: (i) change the manner,
place or terms of payment of all or any part of the Guaranteed Indebtedness,
or
renew, extend, modify, rearrange or alter all or any part of the Guaranteed
Indebtedness; (ii) sell, exchange, release, surrender, subordinate, realize
upon
or otherwise deal with in any manner and in any order any collateral for all
or
any part of the Guaranteed Indebtedness or this Guaranty or setoff against
all
or any part of the Guaranteed Indebtedness; (iii) neglect, delay, omit, fail
or
refuse to take or prosecute any action for the collection of all or any part
of
the Guaranteed Indebtedness or this Guaranty or to take or prosecute any action
in connection with any of the Loan Documents, including, but not limited to,
the
Other Guaranty; (iv) exercise or refrain from exercising any rights against
Borrower or others, or otherwise act or refrain from acting; (v) settle or
compromise all or any part of the Guaranteed Indebtedness and subordinate the
payment of all or any part of the Guaranteed Indebtedness to the payment of
any
obligations, indebtedness or liabilities which may be due or become due to
Lender or others; (vi) apply any deposit balance, fund, payment, collections
through process of law or otherwise or other collateral of Borrower to the
satisfaction and liquidation of the indebtedness or obligations of Borrower
to
Lender not guaranteed under this Guaranty; and (vii) apply any sums paid to
Lender by Guarantor, Borrower or others to the Guaranteed Indebtedness in such
order and manner as Lender, in its sole discretion, may determine.
(d) Notwithstanding
any provision in this Guaranty to the contrary, Guarantor hereby waives and
releases, until payment in full of the Guaranteed Indebtedness, (i) any and
all
rights of subrogation, reimbursement, indemnification or contribution which
it
may have after payment in full or in part of the Guaranteed Indebtedness against
others liable on all or any part of the Guaranteed Indebtedness, (ii) any and
all rights to be subrogated to the rights of Lender in any collateral or
security for all or any part of the Guaranteed Indebtedness after payment in
full or in part of the Guaranteed Indebtedness, and (iii) any and all other
rights and claims of Guarantor against Borrower as a result of Guarantor's
payment of all or any part of the Guaranteed Indebtedness.
(e) Should
Lender seek to enforce the obligations of Guarantor hereunder by action in
any
court or otherwise, Guarantor waives any requirement, substantive or procedural,
that (i) Lender first enforce any rights or remedies against Borrower or any
other person or entity liable to Lender for all or any part of the Guaranteed
Indebtedness, including without limitation that a judgment first be rendered
against Borrower or any other person or entity, or that Borrower or any other
person or entity should be joined in such cause, or (ii) Lender first enforce
rights against any collateral which shall ever have been given to secure all
or
any part of the Guaranteed Indebtedness or this Guaranty. Such waiver shall
be
without prejudice to Lender's right, at its option, to proceed against Borrower
or any other person or entity, whether by separate action or by joinder.
(f) IN
ADDITION TO ANY OTHER WAIVERS, AGREEMENTS AND COVENANTS OF GUARANTOR SET FORTH
HEREIN, GUARANTOR HEREBY FURTHER WAIVES AND RELEASES ALL CLAIMS, CAUSES OF
ACTION, DEFENSES AND OFFSETS FOR ANY ACT OR OMISSION OF LENDER, ITS DIRECTORS,
OFFICERS, EMPLOYEES, REPRESENTATIVES OR AGENTS IN CONNECTION WITH LENDER'S
ADMINISTRATION OF THE GUARANTEED INDEBTEDNESS, EXCEPT FOR LENDER'S WILLFUL
MISCONDUCT AND GROSS NEGLIGENCE.
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7. Obligations
Not Impaired.
(a) Guarantor
agrees that its obligations hereunder shall not be released, diminished,
impaired, reduced or affected by the occurrence of any one or more of the
following events: (i) the lack of corporate power of Borrower, Guarantor or
any
other guarantor of all or any part of the Guaranteed Indebtedness, (ii) any
receivership, insolvency, Bankruptcy or other proceedings affecting Borrower,
Guarantor or any other guarantor of all or any part of the Guaranteed
Indebtedness, or any of their respective property; (iii) the partial or total
release or discharge of Borrower or any other guarantor of all or any part
of
the Guaranteed Indebtedness, or any other person or entity from the performance
of any obligation contained in any instrument or agreement evidencing, governing
or securing all or any part of the Guaranteed Indebtedness, whether occurring
by
reason of law or otherwise; (iv) the taking or accepting of any collateral
for
all or any part of the Guaranteed Indebtedness or this Guaranty; (v) the taking
or accepting of any other guaranty for all or any part of the Guaranteed
Indebtedness; (vi) any failure by Lender to acquire, perfect or continue any
lien or security interest on collateral securing all or any part of the
Guaranteed Indebtedness or this Guaranty; (vii) the impairment of any collateral
securing all or any part of the Guaranteed Indebtedness or this Guaranty; (viii)
any failure by Lender to sell any collateral securing all or any part of the
Guaranteed Indebtedness or this Guaranty in a commercially reasonable manner
or
as otherwise required by law; (ix) any invalidity or unenforceability of or
defect or deficiency in any of the Loan Documents; or (x) any other circumstance
which might otherwise constitute a defense available to, or discharge of,
Borrower or any other guarantor of all or any part of the Guaranteed
Indebtedness.
(b) This
Guaranty shall continue to be effective or be reinstated, as the case may be,
if
at any time any payment of all or any part of the Guaranteed Indebtedness is
rescinded or must otherwise be returned by Lender upon the insolvency,
Bankruptcy or reorganization of Borrower, Guarantor, any other guarantor of
all
or any part of the Guaranteed Indebtedness, or otherwise, all as though such
payment had not been made.
(c) In
the
event Borrower is a corporation, joint stock association or partnership, or
is
hereafter incorporated, none of the following shall affect Guarantor's liability
hereunder: (i) the unenforceability of all or any part of the Guaranteed
Indebtedness against Borrower by reason of the fact that the Guaranteed
Indebtedness exceeds the amount permitted by law; (ii) the act of creating
all
or any part of the Guaranteed Indebtedness is ultra xxxxx; or (iii) the officers
or partners creating all or any part of the Guaranteed Indebtedness acted in
excess of their authority. Guarantor hereby acknowledges that withdrawal from,
or termination of, any ownership interest in Borrower now or hereafter owned
or
held by Guarantor shall not alter, affect or in any way limit the obligations
of
Guarantor hereunder.
8. Actions
against Guarantor.
In the
event of a default in the payment or performance of all or any part of the
Guaranteed Indebtedness when such Guaranteed Indebtedness becomes due, whether
by its terms, by acceleration or otherwise, Guarantor shall, without notice
or
demand, promptly pay the amount due thereon to Lender, in lawful money of the
United States, at Lender's address set forth in Subsection 1(a) above. One
or
more successive or concurrent actions may be brought against Guarantor, either
in the same action in which Borrower is sued or in separate actions, as often
as
Lender deems advisable. The exercise by Lender of any right or remedy under
this
Guaranty or under any other agreement or instrument, at law, in equity or
otherwise, shall not preclude concurrent or subsequent exercise of any other
right or remedy. The books and records of Lender shall be admissible in evidence
in any action or proceeding involving this Guaranty and shall be prima facie
evidence
of the payments made on, and the outstanding balance of, the Guaranteed
Indebtedness.
9. Payment
by Guarantor.
If
reasonably requested by Lender, whenever Guarantor pays any sum which is or
may
become due under this Guaranty, written notice must be delivered to Lender
contemporaneously with such payment. Such notice shall be effective for purposes
of this paragraph when contemporaneously with such payment Lender receives
such
notice either by: (a) personal delivery to the address and designated department
of Lender identified in Subsection 1(a) above, or (b) United States mail,
certified or registered, return receipt requested, postage prepaid, addressed
to
Lender at the address shown in subparagraph 1(a) above. In the absence of such
notice to Lender by Guarantor in compliance with the provisions hereof, any
sum
received by Lender on account of the Guaranteed Indebtedness shall be
prima facie
evidence
of payment by Borrower.
10. Omitted.
11. Waiver
by Lender.
No
delay on the part of Lender in exercising any right hereunder or failure to
exercise the same shall operate as a waiver of such right. In no event shall
any
waiver of the provisions of this Guaranty be effective unless the same be in
writing and signed by an officer of Lender, and then only in the specific
instance and for the purpose given.
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12. Successors
and Assigns.
This
Guaranty is for the benefit of Lender, its successors and assigns. This Guaranty
is binding upon Guarantor and Guarantor's heirs, executors, administrators,
personal representatives and successors, including without limitation any person
or entity obligated by operation of law upon the reorganization, merger,
consolidation or other change in the organizational structure of
Guarantor.
13. Costs
and Expenses.
Guarantor shall pay on demand by Lender all costs and expenses, including
without limitation all reasonable attorneys' fees, incurred by Lender in
connection with the enforcement and/or collection of this Guaranty. This
covenant shall survive the payment of the Guaranteed Indebtedness.
14. Severability.
If any
provision of this Guaranty is held by a court of competent jurisdiction to
be
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable, shall not impair or invalidate the remainder of this
Guaranty and the effect thereof shall be confined to the provision held to
be
illegal, invalid or unenforceable.
15. No
Obligation.
Nothing
contained herein shall be construed as an obligation on the part of Lender
to
extend or continue to extend credit to Borrower.
16. Amendment.
No
modification or amendment of any provision of this Guaranty, nor consent to
any
departure by Guarantor therefrom, shall be effective unless the same shall
be in
writing and signed by an officer of Lender, and then shall be effective only
in
the specific instance and for the purpose for which given.
17. Cumulative
Rights.
All
rights and remedies of Lender hereunder are cumulative of each other and of
every other right or remedy which Lender may otherwise have at law or in equity
or under any instrument or agreement, and the exercise of one or more of such
rights or remedies shall not prejudice or impair the concurrent or subsequent
exercise of any other rights or remedies.
18. GOVERNING
LAW.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF TEXAS AND APPLICABLE FEDERAL LAWS.
19. Venue.
This
Guaranty has been entered into in the county in Texas where Lender's address
for
notice purposes is located, and it shall be performable for all purposes in
such
county. Courts within the State of Texas shall have jurisdiction over any and
all disputes arising under or pertaining to this Guaranty and venue for any
such
disputes shall be in the county or judicial district where the Lender's address
for notice purposes is located.
20. Compliance
with Applicable Usury Laws.
Notwithstanding any other provision of this Guaranty or of any instrument or
agreement evidencing, governing or securing all or any part of the Guaranteed
Indebtedness, Guarantor and Lender by its acceptance hereof agree that Guarantor
shall never be required or obligated to pay interest in excess of the maximum
nonusurious interest rate as may be authorized by applicable law for the written
contracts which constitute the Guaranteed Indebtedness. It is the intention
of
Guarantor and Lender to conform strictly to the applicable laws which limit
interest rates, and any of the aforesaid contracts for interest, if and to
the
extent payable by Guarantor, shall be held to be subject to reduction to the
maximum nonusurious interest rate allowed under said law.
21. Descriptive
Headings.
The
headings in this Guaranty are for convenience only and shall not define or
limit
the provisions hereof.
22. Gender.
Within
this Guaranty, words of any gender shall be held and construed to include the
other gender.
23. Entire
Agreement.
This
Guaranty contains the entire agreement between Guarantor and Lender regarding
the subject matter hereof and supersedes all prior written and oral agreements
and understandings, if any, regarding same; provided, however, this Guaranty
is
in addition to and does not replace, cancel, modify or affect any other guaranty
of Guarantor now or hereafter held by Lender that relates to Borrower or any
other person or entity.
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EXECUTED
as of the date first above written.
GUARANTOR:
(Guarantor)
a________________(Entity)
By:
/s/
Xxxxx X. Xxxx
Name: Xxxxx
X.
Xxxx
Title:
President and Chief Executive Officer
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