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EXHIBIT 2(c)
GUARANTY
Dated as of February 12, 1999
FOR AND IN CONSIDERATION OF One Dollar ($1.00) and other good and
valuable considerations, the receipt whereof is hereby acknowledged, the
undersigned, for itself, and its successors and assigns (the "Guarantor"),
hereby absolutely and unconditionally guarantees to US DIAGNOSTIC INC., a
Delaware corporation, its successors and assigns ("USD"), prompt and full
payment, when and as the same may become due and payable, whether by
acceleration or otherwise, of any and all indebtedness, obligations or
liabilities of UNITED RADIOLOGY ASSOCIATES, INC., a Texas corporation and of its
successors and assigns (collectively, the "Borrower"), under that certain
Promissory Note, dated as of February 12, 1999, between the Borrower and USD, in
the aggregate principal amount of $1,850,000 (One Million, Eight Hundred and
Fifty Thousand Dollars) (the "Note"), including the principal of and interest on
the Note, and all renewals, extensions or replacements of the Note. All of the
above-described indebtedness, obligations and liabilities of Borrower are
sometimes referred to hereinafter as the "indebtedness hereby guaranteed."
Guarantor hereby agrees that its obligations under this Guaranty constitute a
guaranty of payment when due and not of collection.
The Guarantor hereby further agrees as follows:
1. The Guarantor hereby waives demand of payment, presentment, protest
and notice of protest, non-payment, default or dishonor on any and all of the
indebtedness hereby guaranteed and consents to alteration of any such
indebtedness, including, without limitation, alteration of the rate of interest.
The Guarantor consents, without any notice, to any extensions that USD may give
to Borrower, and the Guarantor ratifies and confirms all extensions, renewals or
replacements of the Note. Payments by the Guarantor to USD pursuant to this
Guaranty shall be made at the principal executive offices of USD in West Palm
Beach, Florida, in lawful money of the United States of America. The Guarantor
also hereby agrees to pay to USD any and all expenses of collection and
enforcement under this Guaranty and of the indebtedness hereby guaranteed,
including but not limited to court costs and reasonable attorneys' fees.
2. Any amounts received by USD from whatsoever source on account of the
Borrower's indebtedness, obligations or liabilities may be applied by USD toward
the payment of such of the indebtedness or liabilities, and in such order of
application, as USD may from time to time elect; and, notwithstanding any
payments made by or for the account of Guarantor pursuant to this Guaranty, the
Guarantor shall not be subrogated to any rights of USD until such time as USD
shall have received payment of the full amount of all the indebtedness hereby
guaranteed.
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3. The Guarantor hereby consents to USD from time to time extending the
time of payment in whole or in part of any and all of the indebtedness hereby
guaranteed for such time or times as USD may determine and hereby waives notice
thereof to or obtaining the consent of the Guarantor. Such extension or
extensions may be longer than the time for repayment of the original
indebtedness hereby guaranteed. The Guarantor further agrees that this Guaranty
shall apply with equal force and effect to any renewal or renewals of any of the
indebtedness hereby guaranteed. The Guarantor further consents to USD
exchanging, surrendering, repledging or otherwise dealing with any of the
indebtedness hereby guaranteed without impairing this Guaranty and hereby waives
notice thereof to or obtaining the consent therefor of the Guarantor. The
Guarantor hereby consents to the partial or total release of the Borrower or
other persons primarily or secondarily liable. If at any time all or any part of
any payment theretofore applied by USD to any indebtedness hereby guaranteed is
or must be rescinded or returned by USD for any reason whatsoever (including,
without limitation, the insolvency, bankruptcy or reorganization of the
Borrower) such indebtedness shall for the purpose of this Guaranty, to the
extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence notwithstanding such application by USD, and this
Guaranty shall continue to be effective or be reinstated, as the case may be, as
to such indebtedness as though such application by USD had not been made.
4. Notice by USD of the acceptance of and reliance on this Guaranty is
hereby waived. No act, delay or omission of any kind by USD shall affect or
impair this Guaranty, and USD shall have no duties to the Guarantor. The
Guarantor hereby agrees that its obligations hereunder shall be absolute and
primary and shall be complete and binding as to the Guarantor and subject to no
conditions precedent or otherwise. It is specifically understood and agreed that
this Guaranty shall be in full force and effect and fully enforceable according
to the terms and conditions herein notwithstanding any limitations which may
exist with respect to the liability of the Borrower to pay the indebtedness
guaranteed hereunder. This Guaranty contains the full agreement of the Guarantor
and is not subject to any oral conditions.
5. The obligations hereunder shall be continuing and irrevocable except
as hereinafter provided. The obligation of the Guarantor hereunder with respect
to any and all of the indebtedness, obligations and liabilities of the Borrower
incurred under the Note and hereby guaranteed shall continue until all of such
indebtedness, obligations, and liabilities have been fully paid and performed
and the Note has been terminated or the Guarantor has fully discharged all of
Guarantor's obligations hereunder and has been released from this Guaranty in
writing by USD.
6. The liability of the Guarantor shall remain and continue in full
force and effect notwithstanding (i) the non-liability of the Borrower for any
reason whatsoever for the payment of the indebtedness guaranteed hereunder or
any part thereof, (ii) the voluntary or involuntary liquidation, dissolution,
marshaling of assets and liabilities, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of, or any similar proceeding affecting Borrower or
any of its assets. USD may bring suit against the Guarantor separately without
having to contemporaneously xxx or exhaust its remedies against the Borrower.
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7. USD shall not assign the indebtedness hereby guaranteed or this
Guaranty, except (i) by operation of law or otherwise in connection with a
merger, consolidation, reorganization, recapitalization, dissolution or a
business combination to which USD is a party or in which USD is involved, (ii) a
change in the ownership of, or the power to vote, a majority or more of the
voting stock of USD, or (iii) in connection with a sale of 50% or more of the
assets of USD (each, a "Permitted Assignment"). In the event of a Permitted
Assignment, the indebtedness hereby guaranteed shall be and remain indebtedness
for the purposes of this Guaranty, and each and every immediate and successive
assignee or transferee of any of the indebtedness hereby guaranteed or of any
interest therein shall, to the extent of the interest of such assignee or
transferee in the indebtedness hereby guaranteed be entitled to the benefits of
this Guaranty to the same extent as if such assignee or transferee were USD;
provided, however, that, unless USD shall otherwise consent in writing, USD
shall have an unimpaired right, prior and superior to that of any such assignee
or transferee, to enforce this Guaranty for the benefit of USD as to the
indebtedness hereby guaranteed which USD has not assigned or transferred. For
the purposes of this Guaranty, indebtedness shall include the indebtedness
hereby guaranteed to USD, notwithstanding any right or power of the Borrower or
anyone else to assert any claim or defense as to the invalidity or
unenforceability of any such obligation, and no such claim or defense shall
affect or impair the obligations of the Guarantor hereunder.
8. No modification or waiver hereof shall be binding on USD unless in
writing signed by an officer of USD. This Guaranty shall be construed in
accordance with and governed by the laws of the State of Texas, without regard
to conflict of laws principles thereunder. Wherever possible, each provision of
this Guaranty shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Guaranty shall be prohibited
by or invalid under such 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 Guaranty.
9. The Guarantor (a) hereby irrevocably and unconditionally submits to
the exclusive jurisdiction of the courts of the State of Texas located in Xxxxxx
County or in the United States District Court for the Southern District of Texas
for purposes of any suit, action or other proceeding arising out of this
Guaranty or the subject matter hereof brought by USD, Guarantor, or Borrower,
and (b) hereby waives and agrees not to assert, by way of motion, as a defense,
or otherwise, in any such suit, action or proceeding, any claim that it is not
subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that the suit, action
or proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper, or that this Agreement or the subject matter
hereof may not be enforced in or by such court, and (c) hereby waives in any
such action, suit, or proceeding any offsets or counterclaims. Guarantor hereby
consents to service of process by certified mail to Xxxxx X. Xxxxxx, P.C. at
0000 Xxxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 and agrees that its submission
to jurisdiction and its consent to service of process by mail is made for the
express benefit of USD and Borrower. Final judgment against Guarantor in any
action, suit or proceeding shall be conclusive, and may be enforced in other
jurisdictions by suit, action or proceeding on the conclusive evidence of the
fact and of the amount of any indebtedness or liability of such party therein
described.
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10. USD is hereby granted a security interest for the full amount of
the indebtedness hereby guaranteed, whether or not due and payable, upon all
property and securities now or hereafter in the possession or custody of USD by
or for the account of the Guarantor or in which the Guarantor may have an
interest (all remittances and property to be deemed to be in the possession of
USD as soon as put in transit to it by mail or carrier) and also upon the
balance of any deposit accounts of the Guarantor with USD existing from time to
time, and USD is hereby authorized and empowered at its option to appropriate
any and all thereof and to apply any and all thereof and the proceeds thereof to
the payment and extinguishment of the indebtedness hereby guaranteed at any time
after such indebtedness becomes due and payable. The security interest hereby
granted shall come into existence and continue whether or not any such
collateral is deposited to secure other obligations of the Guarantor to USD, and
USD is authorized to retain and keep any such collateral until payment and
extinguishment of the indebtedness hereby guaranteed. The Guarantor agrees to
pay any deficiency remaining after USD realizes on any security (whether
furnished by the Borrower, the Guarantor or a third party) but USD shall not be
required to first proceed against any such security.
11. It is not the intention of USD nor the Guarantor to obligate the
Guarantor to pay interest in excess of that legally permitted to be paid by
Guarantor under applicable law and should it be determined that Guarantor is
required to pay usurious interest under the Note, the obligations of the
Guarantor shall be limited to paying the maximum rate permitted under said
applicable law. This provision shall not limit in any respect, other than the
payment of such interest as may be usurious, the obligation of the Guarantor to
pay the principal amount due plus other substitute amounts due under the terms
of the Note.
12. Guarantor hereby warrants and represents to USD that, except as may
be set out in any exhibit attached hereto, (i) there are no legal proceedings,
material claims or demands pending against, or to the knowledge of Guarantor,
threatened against Guarantor or any of Guarantor's assets, (ii) Guarantor is not
in material breach or material default of any legal obligations it may have and
(iii) no event, including specifically Guarantor's execution and delivery of
this Guaranty) has occurred, which, with the passage of time or action by a
third party, could result in Guarantor's material breach of material default
under this Guaranty.
13. No failure, omission or delay on the part of USD in exercising any
rights hereunder or in taking any action to collect or enforce payment of any
obligation to which this Guaranty applies or in enforcing observance or
performance of any agreement, covenant, term or condition to be performed or
observed under the Note or any other document executed in connection therewith,
either against the Borrower or any other person primarily or secondarily liable
with the Borrower, shall operate as a waiver of any such right or in any manner
prejudice the rights of USD against the Guarantor.
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14. THE GUARANTOR HEREBY, AND USD BY ITS ACCEPTANCE OF THIS GUARANTY,
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 USD ACCEPTING THIS GUARANTY AND MAKING
ANY LOAN OR OTHER EXTENSION OF CREDIT TO THE BORROWER.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be dated
for convenience as of the date first written above.
/s/ X.X. Xxxxxx
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Xx. X.X. Xxxxxx, M.D.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF:
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