EXHIBIT 10.27
GUARANTY OF PAYMENT AND PERFORMANCE
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("Guaranty")
Dated as of December 30, 1997
1. FOR VALUE RECEIVED, and in order to induce BANK ONE,
KENTUCKY, NA, a national banking association, and its successors and
assigns, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (the
"Bank"), to make the loan evidenced by that certain Amended and Restated
Revolving Credit Note dated December 30, 1997, in the face principal
amount of Two Hundred Thousand Dollars ($200,000.00) (the "Note") and
made by 21ST CENTURY CLAIM SERVICE, INC. ("Borrower"), the undersigned,
EQUITY INSURANCE MANAGERS, INC. (the "Guarantor") does hereby personally
guarantee unconditionally to the holder of the Note the due and punctual
payment of all installments of principal and interest now or in the
future due under the Note, as and when the same shall be due and payable
thereunder in accordance with their respective terms, and whether the
same be declared due by the holder of the Note prior to its stated
maturity date by virtue of default thereunder. The undersigned further
guarantees the prompt performance by Borrower of all non-monetary
undertakings, covenants and agreements to be performed by Borrower under
the Note.
2. The Guarantor consents and agrees that the whole or any part
of the security now or hereafter held for the Note may be exchanged,
compromised, surrendered or released from time to time; that the time or
place of payment of the Note or of any security therefor may be
exchanged or extended, in whole or in part, to a time certain or
otherwise, and the Note may be renewed or accelerated, in whole or in
part; that Borrower may be extended further loans and be granted
indulgences generally; that any of the provisions of the Note, or of any
instrument securing or pertaining to the security for the same, may be
modified or waived (either expressly or through tacit acquiescence);
that any party liable for the payment of the Note may be granted
indulgences or released; that neither the death, insolvency, bankruptcy,
dissolution, nor disability of the Borrower or of the Guarantor shall
affect the obligations hereunder of the Guarantor; that no claim need be
asserted against the personal representatives, guardian, trustee in
bankruptcy or receiver of any deceased, incompetent, bankrupt or
insolvent Borrower or guarantor; that any deposit balance to the credit
of Borrower, Guarantor, or any other party liable for payment of the
Note or liable upon any security therefor may be released from time to
time in whole or in part, at, before or after the stated, extended or
accelerated maturity date of the Note; and that the undersigned
Guarantor shall remain bound hereunder, notwithstanding any such
exchange, compromise, surrender, extension, renewal, acceleration,
modification, waiver, indulgence, release or other action, all of which
may be affected without notice to or further asset or agreement by
Guarantor.
3. The Guarantor expressly waives:
(a) Notice of acceptance of this Guaranty;
(b) Presentment and demand for payment of the Note;
(c) Protest and notice of protest, dishonor or
default to Guarantor or to any other party with
respect to the Note or any security for the
Note;
(d) All other notices to which Guarantor may
otherwise be entitled;
(e) Demand for payment under this Guaranty;
(f) Notice of disposition of any security for the
Note;
(g) All rights of indemnity, exoneration,
reimbursement, contribution and/or subrogation
of Guarantor against Borrower; and
(h) All suretyship and guarantor's defenses
generally.
4. This is a guaranty of payment as to monetary obligations and
not of collection. The liability of Guarantor under this Guaranty shall
be direct and immediate and not conditional or contingent upon the
pursuit of any remedies against Borrower or any other guarantor or other
person nor against the security or liens available to holder for the
payment of the Note. The Guarantor waives any claim to marshaling of
assets and waives any right to require that an action be brought against
Borrower or any other person prior to action against the Guarantor
hereunder and waives any right to require that resort be had to any
security for the Note or to any balance of any deposit account or credit
on the books of the holder of the Note in favor of Borrower or any other
party prior to action by the holder of the Note against the Guarantor
hereunder. If the Note is partially paid through the election of the
holder thereof to pursue any of the remedies mentioned in this literary
paragraph or if the Note is otherwise partially paid, Guarantor shall
remain personally liable for the entire unpaid principal balance of, and
all accrued interest on, the Note.
5. The Note shall constitute the primary independent and
continuing obligation of the Guarantor, who shall be liable for payment
of the debt evidenced by the Note, notwithstanding the partial or total
invalidity of the Note.
6. The obligations of the Guarantor under this Guaranty shall
not be subject to any counterclaim, set off, deduction or defense based
upon any claim Guarantor may have against Borrower or Bank, and the
obligations of Guarantor under this Guaranty shall remain in full force
and effect, without regard to, and shall not be released, discharged or
in any way modified or affected by, any circumstance or condition
(whether or not Guarantor shall have any knowledge or notice thereof),
including, but not limited to, any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or
similar proceeding with respect to Borrower or its properties or its
creditors, or any action taken by any trustee or receiver or by any
court in any such proceeding.
7. In the event of any default by Borrower under the Note,
Guarantor will pay, to the extent allowable by law to Bank such further
amount as shall be sufficient to reimburse fully Bank for all of its
costs and expenses of enforcing its rights and remedies under the Note,
including, without limitation, Bank's reasonable attorney's fees and
court costs, and all of same shall be evidenced by the Note and this
Guaranty.
8. This Guaranty shall be construed in accordance with and
governed by the laws of the Commonwealth of Kentucky, without reference
to its principles of conflicts of laws.
9. GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHTS HE 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, THE LOAN AGREEMENT OR ANY OTHER DOCUMENT, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF BANK, BORROWER OR ANY GUARANTOR. GUARANTOR ACKNOWLEDGES AND
AGREES THAT HE HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK.
10. The Guarantor agrees that the sole proper venue for the
determination of any litigation commenced by either Guarantor or Bank on
any basis shall be in a court of competent jurisdiction which is located
in Fayette County, Kentucky, and the parties hereby expressly declare
that any other venue shall be improper and Guarantor expressly waives
any right to a determination of any such litigation against Guarantor by
a court in any other venue. Guarantor further agrees that service of
process by any
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judicial officer or by registered or certified U.S. mail shall establish
personal jurisdiction over Guarantor, and Guarantor waives any rights
under the laws of any state to object to jurisdiction within the
Commonwealth of Kentucky. The aforesaid means of obtaining personal
jurisdiction and perfecting service of process are not intended to be
exclusive, but are cumulative and in addition to all other means of
obtaining personal jurisdiction and perfecting service of process now or
hereafter provided by the laws of the Commonwealth of Kentucky or by any
other state in an action brought by Bank in such state. Provided,
however, nothing herein shall in any way be deemed to limit the ability
of Bank to serve any writs, process or summons in any other manner
permitted by applicable law or to obtain jurisdiction over Guarantor in
such other jurisdictions and in such manner as may be permitted by
applicable law.
11. The undersigned does hereby agree and acknowledge that the
maximum aggregate liability of the Guarantor shall be the sum of Two
Hundred Thousand Dollars ($200,000.00), plus interest accruing on said
amount, plus fees, charges and costs of collecting the guaranteed
indebtedness (including reasonable attorneys fees).
12. This Guaranty shall terminate on January 30, 1999.
Provided, however, the undersigned acknowledges and agrees that such
termination shall not affect his liability with respect to:
(a) obligations created or incurred prior to such date (which
specifically includes the Note), or (b) extensions or renewals of,
interest accruing on, or fees, costs or expenses incurred with respect
to such obligations (which specifically includes the Note), on or after
such date.
13. If any payment made on the Note shall be required to be
repaid or refunded by Bank as a result of any bankruptcy or insolvency
of Borrower or of Guarantor or by virtue of any claim of preference,
invalidity, unenforceability or right of rescission, Guarantor hereby
acknowledges and agrees that Guarantor shall remain liable for the
amount of such payment refunded, to the extent provided herein, as if
such payment had never been made by Borrower or by Guarantor to Bank.
14. This Guaranty shall remain fully enforceable irrespective of
any claim, defense or counterclaim which Borrower may or could assert as
to the Note, including, but not limited to, failure of consideration,
breach of warranty, payment, statute of frauds, statute of limitations,
fraud, bankruptcy, and usury, all of which Guarantor hereby waives along
with any standing by Guarantor to assert any said claim, defense or
counterclaim.
15. The Guarantor has, to his satisfaction, independently
investigated: (a) Borrower's credit history; (b) Borrower's payment
history with Bank; (c) Borrower's past, current and projected financial
condition; and (d) the sufficiency of any collateral supporting
Borrower's obligations under the Note. Guarantor represents and
warrants that he has relied exclusively on his own independent
investigation of Borrower for his decision to guarantee the Note.
Guarantor agrees that he has sufficient knowledge of Borrower to make an
informed decision about this Guaranty, and that Bank has no duty or
obligation to disclose any information in its possession or control
about Borrower to Guarantor.
I. In the event that any one or more of the provisions contained
herein shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof and this
Guaranty shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
II. The provisions of this Guaranty shall be binding upon the
Guarantor and his respective heirs, successors, legal representatives
and assigns and shall inure to the benefit of the holder of the Note,
and its successors, endorsees and assigns.
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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty to be
effective as of the date and year first above written.
/s/ Xxxx X. Xxxxx, President
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EQUITY INSURANCE MANAGERS, INC.
STATE OF KENTUCKY
COUNTY OF FAYETTE
Subscribed, acknowledged and sworn to before me this 30th day of
December, 1997, by Xxxx Xxxxxx Xxxxx, as President of Equity Insurance
Managers, Inc., as Guarantor.
My Commission Expires: July 11, 2000
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/s/ Xxxxxx X. Xxx
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NOTARY PUBLIC, STATE AT LARGE
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