UNCONDITIONAL AND CONTINUING GUARANTY
OF PAYMENT AND PERFORMANCE
THIS GUARANTY ("Guaranty") is made as of the 29th day of December,
1997, by MEDICORE, INC., a Florida corporation (the "Guarantor") in favor
of XXXXXXX BANK, N.A., a national banking association ("Lender").
R E C I T A L S :
A. Lender has agreed to make a revolving credit loan facility avail-
able to Techdyne, Inc., a Florida corporation ("Borrower"), in the aggre-
gate principal amount at any one time outstanding of $1,600,000 (all loans
now or hereafter made under such facility are collectively called the
"Loans").
B. The Loans shall be evidenced by a Revolving Promissory Note of
even date herewith executed by Borrower to the order of Lender (as same may
be amended, modified, extended or renewed from time to time, without the
necessity of notice to or the consent of the Guarantor, the "Note").
C. The Loans are to be made pursuant to, and are secured by, among
other documents, a Loan and Security Agreement dated February 8, 1996
between Borrower and Xxxxxxx Bank of South Florida, N.A., as amended by a
First Amendment to Loan and Security Agreement, Loan Agreement, and
Security Agreement dated July 31, 1997, and Second Amendment to Loan
Agreement of even date herewith between Borrower and Lender (as so amended
and as the same may be amended, modified, extended or renewed from time to
time, without the necessity of notice to or the consent of the Guarantor,
the "Loan Agreement").
D. Lender may from time to time issue and renew banker's acceptances
at the request of the Borrower under or in connection with the Loan Agree-
ment (all such banker's acceptances, as the same may be amended, modified,
extended or renewed from time to time, without the necessity of notice to
or the consent of the Guarantor, are collectively called the "Banker's
Acceptances"). All agreements and other documents from time to time
executed in connection with the Banker's Acceptances or any of them, as
such agreements and other documents may be amended, modified, extended or
renewed from time to time, without the necessity of notice to or the
consent of the Guarantor, are collectively called the "Acceptance Agree-
ments".
E. The Borrower is a subsidiary of Guarantor, and accordingly, the
Guarantor will benefit from the Loans, the issuance of the Banker's Accep-
tances and all transactions relating thereto.
F. Lender would not make the Loans or issue any Banker's Acceptances
solely upon the covenants of the Borrower under the Note, Loan Agreement,
Acceptance Agreements and other loan documents, but requires, as further
security therefor, an unconditional and irrevocable guaranty of payment and
performance respecting the Loans and the Acceptance Agreements from
Guarantor.
NOW, THEREFORE, in consideration of the premises, and to induce Lender
to make the Loans and to issue the Banker's Acceptances, and in considera-
tion thereof, Guarantor guarantees and agrees as follows:
1. Recitations. Each and all of the foregoing recitals are true
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and correct and are incorporated herein by reference.
2. Capitalized Terms. All capitalized terms utilized in this
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Guaranty, unless specifically otherwise defined herein, shall have the
meanings assigned to such terms in the Loan Agreement.
3. Guaranty. Guarantor hereby absolutely, irrevocably and uncondi-
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tionally guarantees (as primary obligor and not merely as sureties) to
Lender and its successors and assigns the full and prompt payment (whether
at stated maturity, by acceleration, or otherwise) and performance of the
"Obligations" as hereinafter defined. "Obligations" shall mean:
(a) All "Obligations" as such term is defined in the Loan
Agreement;
(b) All principal, interest, attorneys' fees, loan fees, liabil-
ities for costs and expenses and all other indebtedness, obligations
and liabilities of Borrower to Lender at any time created or arising
under or in connection with the Loans, the Banker's Acceptances, the
Note, Loan Agreement, Acceptance Agreements, or any other document
now or hereafter executed in connection with the Loans or the Banker's
Acceptances (or any of them) or as security for the Loans or any of
the Banker's Acceptances or any amendment, extension, renewal, or
modification thereto or substitution therefor (which may be made with
out notice to or the consent of the Guarantor). The Loan Agreement,
Note, Acceptance Agreements and all other documents evidencing,
securing or otherwise relating to the Loans, the Banker's Acceptances
or any of them, whether now or hereafter existing, as the same may be
amended, modified, extended or renewed from time to time, without the
necessity of notice to or the consent of the Guarantor, are sometimes
collectively called the "Loan Documents";
(c) All agreements, covenants, indemnities, terms, conditions,
and other obligations to be performed by, or on behalf of, Borrower
under the Loan Documents; and
(d) All costs, expenses and fees, including but not limited to
court costs and attorneys' fees, arising in connection with, or as a
consequence of the non-payment, non-performance or non-observance of
all amounts, indebtedness, obligations and liabilities of Borrower to
Lender described in items (a), (b) and (c) of this Section 3.
Upon payment and performance in full of the Obligations and the termination
of any further liability of Lender under the Loan Documents and the
Banker's Acceptances, this Guaranty shall terminate, subject, however, to
reinstatement pursuant to Section 10 below if any payment made with respect
to the Obligations is rescinded or must otherwise be restored or returned
by Lender.
4. Guaranty of Payment. This is an irrevocable, absolute, contin-
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uing guaranty of payment (inter alia) and not a guaranty of collection and
is in no way conditioned or contingent upon any attempt to collect from or
enforce performance or compliance by the Borrower or upon any other event,
contingency or circumstance whatsoever. If for any reason the Borrower
shall fail or be unable duly, punctually and fully to pay and perform the
Obligations as and when the same shall become due, the Guarantor, without
demand, presentment, protest or notice of any kind, will forthwith pay or
perform the Obligations in accordance with the terms of such Loan Documents.
All such payments shall be made in lawful money of the United States and
at the place specified in the Note, with interest thereon until paid at
the rate set forth in the Loan
Documents. The Guarantor, promptly after demand, will pay to the Lender
the reasonable costs and expenses of collecting such amounts or otherwise
enforcing this Guaranty, including, without limitation, the reasonable
fees and expenses of counsel (before trial, at trial, at all appellate
levels, in bankruptcy, and otherwise). Guarantor waives any right to
require that any action be brought against Borrower or any other person
or to require that resort be made to any security and Lender may, at its
option, proceed against the Guarantor in the first instance to collect any
monies the payment of which is guaranteed hereby, without first proceeding
against Borrower or any other person and without first resorting to any
security held by it as collateral or to any other remedies. The liability
of the Guarantor hereunder shall be in no way affected or impaired by an
acceptance by Lender of any security for, or other guarantors upon, any
indebtedness, liability or obligation of Borrower to the Lender, or by
any failure, delay, neglect or omission by Lender to realize upon or
protect any such indebtedness, liability or obligation or any notes or
other instruments evidencing same or any collateral or security therefor.
5. Obligations of Guarantor Unconditional. The obligations of the
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Guarantor under this Guaranty shall be primary, absolute and unconditional
obligations of the Guarantor, shall not be subject to any counterclaim,
set-off, deduction, diminution, abatement, recoupment, suspension, defer-
ment, reduction or defense based upon any claim the Guarantor or any other
person may have against the Borrower, the Lender or any other person, and
shall remain in full force and effect without regard to, and shall not be
released, discharged or in any way affected by, any circumstance, contin-
gency or condition whatsoever (whether or not the Guarantor, the Borrower
or the Lender shall have any knowledge or notice thereof and whether
occurring prior to or after the date of this Guaranty), including, without
limitation:
(a) Any termination (other than by payment in full, subject to
the provisions of Section 10 below), amendment or modification of or
deletion from or addition or supplement to or other change, modifica-
tion, extension, substitution or renewal of any of the Loan Documents
or any other instrument or agreement applicable to any of the parties
to any of the Loan Documents;
(b) Any furnishing or acceptance of any security, or any release
of any security, for the Obligations, or the failure of any security
or the failure of any person to perfect any interest in any collateral;
(c) Any failure, omission or delay on the part of the Borrower
to conform or comply with any term of any of the Loan Documents or any
other instrument or agreement referred to in subsection (a) above,
including, without limitation, failure to give notice to the Guarantor
of the occurrence of a default under any Loan Document;
(d) Any waiver of the payment, performance or observance of any
of the obligations, conditions, covenants or agreements contained in
any Loan Document or any other waiver, consent, extension, indulgence,
compromise, settlement, release or other action or inaction under or
in respect of any of the Loan Documents or any other instrument or
agreement referred to in subsection (a) above, or any obligation or
liability of the Borrower, or any exercise or non-exercise of any
right, remedy, power or privilege under or in respect of any such
instrument or agreement or any such obligation or liability;
(e) Any failure, omission or delay on the part of the Lender to
enforce, assert or exercise any right, power or remedy conferred on
it in this Guaranty, or any such
failure, omission or delay on the part of the Lender in connection
with any Loan Document or any other action or inaction on the part of
the Lender;
(f) Any voluntary or involuntary bankruptcy, insolvency, reor-
ganization, arrangement, readjustment, assignment for the benefit of
creditors, composition, receivership, conservatorship, custodianship,
liquidation, marshalling of assets and liabilities or similar pro-
ceedings with respect to the Borrower, the Guarantor or any other
person or any of their respective properties or creditors, or any
action taken by any trustee or receiver or by any court in any such
proceeding;
(g) Any limitation on the liability or obligations of the
Borrower or any other person under any of the Loan Documents or any
discharge, termination or cancellation (other than by payment in
full), frustration, irregularity, invalidity or unenforceability, in
whole or in part, of any of the Loan Documents or any other agreement
or instrument referred to in subsection (a) above or any term hereof;
(h) Any merger or consolidation of the Borrower or the Guarantor
into or with any other corporation, or any sale, lease or transfer or
any of the assets of the Borrower or the Guarantor to any other person;
(i) Any change in the relationship between the Borrower and the
Guarantor or any termination of such relationship;
(j) Any law, regulation, or decree now or hereafter in effect in
any jurisdiction which might in any manner affect any of the Obliga
tions or the rights of Lender with respect thereto;
(k) Any release or discharge, by operation of law, of the
Guarantor from the performance or observance of any particular obli-
gation, covenant or agreement contained in this Guaranty;
(l) Any counterclaim, defense, reduction or set-off the Borrower
may have with respect to any of the Obligations; or
(m) Any other occurrence, circumstance, happening or event what-
soever, whether similar or dissimilar to the foregoing, whether
foreseen or unforeseen, and any other circumstance which might other-
wise constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or which might otherwise limit
recourse against the Guarantor.
6. Full Recourse Obligations. The obligations and liabilities of
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the Guarantor set forth herein constitute the full recourse obligations of
the Guarantor enforceable against the Guarantor to the full extent of all
its assets and properties.
7. Waiver. The Guarantor unconditionally waives, to the fullest
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extent permitted by applicable law:
(a) Notice of acceptance of this Guaranty by Lender, or of the
creation, renewal or accrual of any liability of Borrower, present or
future, or of the reliance of Lender upon this Guaranty (it being
understood that every indebtedness, liability and obligation
of Borrower to Lender shall conclusively be presumed to have been
created, contracted or incurred in reliance upon this Guaranty);
(b) Notice of any of the matters referred to in Section 5;
(c) Notice to the Guarantor of the incurrence of any of the
Obligations, notice to the Guarantor or the Borrower of any breach or
default by the Borrower with respect to any of the Obligations, notice
of acceleration or intent to accelerate, or any other notice that may
be required, by statute, rule of law or otherwise, to preserve any
rights of the Lender against the Borrower or the Guarantor;
(d) Presentment to or demand of payment from the Borrower, the
Guarantor or any other person with respect to the Note or protest for
nonpayment or dishonor;
(e) Any right to require Lender to enforce, assert or exercise
any right, power, privilege or remedy conferred in any Loan Document
or otherwise and notice of Lender's exercise of any such right,
privilege or remedy;
(f) Any requirement of diligence on the part of the Lender;
(g) Any requirement to exhaust any remedies or to mitigate the
damages resulting from any default under any Loan Document;
(h) Defense of the statute of limitations in any action here-
under or for the collection of any indebtedness or the performance of
any Obligations hereby guaranteed; and any defense arising by virtue
of (i) the lack of authority of the Borrower or any other person, or
(ii) the failure of Lender to file or enforce a claim of any kind;
(i) Any notice of sale, transfer or other disposition of any
right, title to or interest in the Loan Documents by the Lender;
(j) Any duty on the part of Lender to disclose to Guarantor any
facts which Lender may now or hereafter know about Borrower, regard-
less of whether Lender has reason to believe that any such facts
materially increase the risk beyond that which the Guarantor intends
to assume, has reason to believe that such facts are unknown to
Guarantor or has a reasonable opportunity to communicate such facts
to Guarantor, it being understood and agreed the Guarantor is fully
responsible for being and keeping informed of the financial condition
of Borrower and of all circumstances bearing on the risk of non-payment
of all Obligations hereby guaranteed; and
(k) Any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge, release or defense of a
guarantor or surety or which might otherwise limit recourse against
the Guarantor.
8. Waiver of Subrogation. The Guarantor hereby irrevocably and
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forever waives any claim, remedy or right which the Guarantor may now have
or hereafter acquire against the Borrower that arises hereunder and/or as a
result of the payment or performance by the Guarantor under this Guaranty,
including, without limitation, any claim, remedy or right of subrogation,
reimbursement, exoneration, indemnification, or participation in any claim,
remedy or right of Lender against the Borrower or any security which Lender
now has or hereafter acquires, whether
or not such claim, remedy or right arises in equity, under contract, by
statute, under common law or otherwise.
9. Consent to Extensions, Renewals and Releases. Guarantor hereby
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agrees that Lender may, from time to time, before or after any default by
Borrower, with or without further notice to or assent from the Guarantor,
without in any manner affecting the liability of Guarantor, and upon such
terms and conditions as it may deem advisable: (a) extend in whole or in
part (by renewal or otherwise), modify, accelerate, change or release any
indebtedness, liability or obligation of Borrower or of any other person
liable for any indebtedness, liability or obligation of Borrower, or waive
any default with respect thereto; (b) sell, release, surrender, modify,
impair, exchange, substitute or (if a chose or choses in action) extend
the duration or the time for performance or payment of any and all
property, of any nature and from whomsoever received, held by Lender as
security for the payment or performance of any indebtedness, liability or
obligation of Borrower to Lender; and (c) settle, adjust or compromise any
claim of Lender against Borrower or any other person liable for any
indebtedness, liability or obligation of Borrower. Guarantor hereby rati-
fies and confirms any such extension, renewal, change, release, waiver,
surrender, exchange, modification, impairment, substitution, settlement,
adjustment or compromise and agree that the same shall be binding upon
Guarantor, and Guarantor hereby expressly waives any and all defenses,
counterclaims or offsets which Guarantor might or could have by reason
thereof, it being understood that Guarantor shall at all times be bound
by this Guaranty and remain fully liable to Lender hereunder.
10. Effect of Bankruptcy Proceedings, etc. This Guaranty shall
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continue to be effective or be automatically reinstated, as the case may
be, if at any time payment, in whole or in part, of any of the sums due to
the Lender pursuant to the terms of any Loan Document is rescinded or must
otherwise be restored or returned by the Lender upon the insolvency, bank-
ruptcy, dissolution, liquidation or reorganization of the Borrower or any
other person, or upon or as a result of the appointment of a custodian,
receiver, trustee or other officer with similar powers with respect to the
Borrower or other person or any substantial part of its property, or other-
wise, all as though such payment had not been made. If an event permitting
the acceleration of the maturity of the principal amount of the Note or
any of the obligations of Borrower under the Acceptance Agreements shall
at any time have occurred and be continuing, and such acceleration shall
at such time be prevented by reason of the pendency against the Borrower
or any other person of a case or proceeding under a bankruptcy or insol-
vency law, the Guarantor agrees that, for purposes of this Guaranty and
its obligations hereunder, the maturity of the principal amount of the
Note or such other obligations shall be deemed to have been accelerated
with the same effect as if the Lender had accelerated the same in ac-
cordance with the terms of the Loan Documents and the Guarantor shall
forthwith pay such principal amount, any interest thereon and any other
amounts guaranteed hereunder, without further notice or demand.
11. Remedies. In the event that Guarantor shall fail to perform
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promptly as herein provided, Lender shall have the right (from time to
time, without first requiring performance on the part of the Borrower) to
require payment and performance by the Guarantor of any Obligations, by
action at law or in equity or both, and further to collect in any such
action reasonable compensation for all loss, costs, damage, injury and
expense sustained or incurred by Lender as a consequence of such breach.
12. Interest and Expenses of Enforcement. Any sum required to be
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paid by Guarantor to Lender pursuant to the terms hereof shall bear
interest at the non-default rate set forth in the Loan Documents from the
due date thereof until 10 days after demand from Lender
and thereafter all such sums shall bear interest at the Post-Default Rate
(as such term is defined in the Note) until paid. Guarantor agrees to
pay any and all costs and expenses incurred by Lender in enforcing any
rights or remedies under this Guaranty, including, without limitation, all
reasonable fees and expenses of the Lender's attorneys, including fees and
expenses of any appeals, regardless of whether any specific legal pro-
ceedings should be commenced or initiated.
13. Consideration. Guarantor acknowledges that its undertakings
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hereunder are given in consideration of the Lender making the Loans to
Borrower and issuing the Banker's Acceptances at the Borrower's request
and that Lender would not make the Loans to Borrower or issue any Banker's
Acceptance were it not for the execution and delivery of this Guaranty.
14. No Waiver. No failure on the part of Lender to pursue any remedy
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hereunder or under the Loan Documents shall constitute a waiver on its part
of the right to pursue said remedy on the basis of the same or a subsequent
breach. No extension, substitution, modification, amendment or renewal of
the Loan Documents shall serve to waive the provisions hereof or discharge
Guarantor from any obligation or liability herein contained in whole or in
part, except to the extent expressly provided by Lender in writing.
15. Guaranty Independent. Guarantor agrees that all of the obliga-
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tions, agreements and liabilities hereunder are joint and several and are
independent of and in addition to the undertakings of the Borrower pursuant
to the Loan Documents and any other obligations of Guarantor to Lender. A
separate action may be brought to enforce the provisions hereof whether or
not Borrower is a party in any such action. Borrower and Guarantor may be
sued together, or any of them may be sued separately without first or
contemporaneously suing the other.
16. Representations and Warranties. The Guarantor hereby represents
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and warrants the following:
(a) Financial Statements.
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(i) All financial statements and data that have been given
to Lender by Guarantor with respect to Guarantor (A) are complete
and correct in all material respects as of the date given; and
(B) accurately present the financial condition of Guarantor on
each date as of which, and the results of such Guarantor's opera-
tions for the periods for which, the same have been furnished.
(ii) All financial statements, balance statements, and any
notes thereto with respect to Guarantor furnished to Lender
disclose all material liabilities of Guarantor, fixed and contin-
gent, as of their respective dates.
(iii) There has been no adverse change in the financial con-
dition or operations of Guarantor since the date of the most
recent financial statement given to Lender with respect to Guar-
antor other than changes in the ordinary course of business,
none of which changes have been materially adverse individually
or in the aggregate.
(b) Other Arrangements. Guarantor is not in default in the
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performance,observance or fulfillment of any of the obligations, covenants
or conditions set forth in any
agreement or instrument to which Guarantor is a party, a default which
would or may materially and adversely affect Guarantor's ability to fulfill
its obligations under this Guaranty.
(c) Other Information. All other reports, papers and written
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data and information given to Lender by Guarantor with respect to Guarantor
are accurate and correct in all material respects and complete insofar as
completeness may be necessary to give Lender a true and accurate knowledge
of the subject matter.
(d) Litigation. There is not now pending against or affecting
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Guarantor, nor to the knowledge of Guarantor is there threatened, any
action, suit or proceeding at law or in equity or by or before any admin-
istrative agency or arbitrator which, if decided adversely to the Guaran-
tor, would individually or collectively have a material adverse effect on
the Guarantor.
(e) Taxes. Guarantor has filed all federal, state, provincial,
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county, municipal and other income tax returns required to have been filed
by Guarantor and has paid all taxes that have become due pursuant to such
returns or pursuant to any assessments received by Guarantor, and Guarantor
does not know of any basis for any material additional assessment against
it in respect of such taxes.
(g) Existence and Good Standing. Guarantor is a validly
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existing Florida corporation in good standing in the State of Florida and
in all other jurisdictions where the nature of its business requires that
it qualify as a foreign corporation.
Guarantor knows of no facts which would, in any manner, indicate that
the statements and the implications therefrom set forth in the represen-
tations and warranties contained in this Section 16 are not true and
complete.
17. Affirmative Covenants. Guarantor covenants and agrees that, so
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long as this Guaranty shall remain in effect, each Guarantor will, unless
the Lender shall otherwise consent in writing:
(a) Financial Statements. Furnish or cause to be furnished to
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Lender (i) the financial statements and other information relating to the
Guarantor required to be delivered pursuant to the Loan Documents; and
(ii) such other information as Lender may from time to time reasonably
request.
(b) Taxes Affecting the Guarantor. File all United States,
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state, provincial, county, municipal and other income tax returns required
to be filed by them and pay before the same become delinquent all taxes
that become due pursuant to such returns or pursuant to any assessments
received by the Guarantor.
(c) Compliance with Laws. Promptly and faithfully comply in
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all material respects with all laws, ordinances, rules, regulations and
requirements, both present and future, of every duly constituted govern-
mental authority or agency having jurisdiction that may be applicable to
them.
(d) Books and Records. Maintain full and complete books of
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account and other records, in form reasonably satisfactory to Lender, and
furnish to Lender such information concerning the financial condition of
Guarantor as Lender shall reasonably request.
(e) Notice. Give prompt written notice to Lender (i) of any
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action or proceeding instituted by or against the Guarantor or as to which
Guarantor shall have received written notice in any court or by any com-
mission or other regulatory body, or of any such proceedings threatened
against the Guarantor which has a reasonable likelihood of resulting in
a judgment or judgments in excess of $200,000 and (ii) of any other action,
event or condition of any nature known to Guarantor or of which it should
have knowledge which constitutes a default under this Guaranty or any of
the Loan Documents or which, with notice or lapse of time or both, would
constitute such a default, or a default of the Borrower or any other
guarantor under any other contract, instrument or agreement to which any
of them is a party or by which any of them or any of their respective
properties or assets may be bound or to which any may be subject, which
default might have a material adverse effect upon the business, operations,
properties, assets or financial condition of the Guarantor.
18. Amendments, Etc. No amendment or waiver of any provision of this
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Guaranty nor consent to any departure by the Guarantor therefrom shall in
any event be effective unless the same shall be in writing and signed by
Lender, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
19. Notices, Demand and Other Instruments. All notices, offers,
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acceptances, rejections, consents, requests and other communications to
the Guarantor hereunder shall be in writing and shall be deemed to have
been given (i) when delivered in person, or (ii) when sent by certified
mail, return receipt requested, or (iii) when sent by telecopier, telex
or other telegraphic means (with receipt confirmed) or (iv) on receipt
after being sent by express mail or delivery service guaranteeing over-
night delivery, to the following address:
Medicore, Inc.
0000 X. 00xx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
with a copy to:
Xxxxxxxx X. Xxxxx, Esq.
000 Xxxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxxx Xxxxxxx, XX 00000
or to such other address as the Guarantor shall furnish by notice to the
Lender in writing. Notices need not be given or made by an officer of
either party but shall be deemed sufficiently given if made by the counsel
of such party, and all of such notices shall be deemed in compliance hereof
provided only they be given in the manner specified herein.
20. Breach of Warranty. Guarantor shall be deemed to be in default
------------------
of this Guaranty if any representation or warranty made by Guarantor here-
under, under any statement, instrument or certificate delivered by
Guarantor to Lender pursuant to the provisions hereof, or under any other
agreement between Guarantor and Lender made in connection with the Loans
or any Banker's Acceptance shall be incapable of being given by Guarantor,
or, if given, shall be determined by Lender to have been false or mis-
leading in any material respect as of the date on which the same was made,
or shall be breached, and in such case, Lender shall be entitled to
exercise the remedies described in Section 11 hereof.
21. Separate Property. Guarantor shall be fully liable under this
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Guaranty, and Guarantor does further agree that any and all of the property
of the Guarantor shall be subject to execution for any judgment or decree
on or enforcing this Guaranty by a court of competent jurisdiction against
Guarantor. Guarantor agrees that any property held by Guarantor as
tenants-in-common or any other form of joint ownership shall also be
subject to enforcement of this Guaranty, and the Guarantor hereby waives
any exemption under the constitution and laws of each jurisdiction where
any such separate property or other property is located.
22. Withholding Laws. If under any applicable law or regulation or
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the interpretation thereof by any governmental authority charged with the
administration thereof, Guarantor shall be required to make any withholding
or deduction from any payment (whether of interest or otherwise) to be made
by Guarantor to Lender hereunder for or in respect of any present or future
taxes, levies, imposts, duties, charges or fees of any nature, the amount
due to Lender from Guarantor in respect of such payment shall be increased
to the extent necessary to insure that after making such withholding or
deduction, and any withholdings or deductions required to be made in
respect of any such increase, Lender shall receive an amount equal to the
amount which Lender would have received had no such withholding or
deduction been required to be made. In the event of any such withholding
or deduction, Guarantor shall deliver to Lender, forthwith after receipt
by Guarantor, the official receipt or other official documentation evi-
dencing the payment of the amount so withheld or deducted.
23. Loan Documents. Guarantor acknowledges that its is fully famil-
--------------
iar with the terms, provisions and conditions of the Loan Documents and
that its execution of this Guaranty shall also serve as its consent to and
approval of the terms and provisions thereof.
24. Miscellaneous.
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(a) This Guaranty shall be governed by and construed in accor-
dance with the laws of the State of Florida.
(b) Time is of the essence hereof with respect to all obliga-
tions hereunder.
(c) The obligations and promises set forth herein shall be joint
and several undertakings and liabilities of each party executing this
Guaranty, and Lender may proceed hereunder against any one or more of said
parties without waiving its right to proceed against any of the others.
(d) Guarantor agrees to pay any present or future stamp or docu-
mentary taxes, or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to this Guaranty.
(e) If any term, provision, covenant or condition hereof or any
application thereof should be held by a court of competent jurisdiction to
be invalid, void or unenforceable, all terms, provisions, covenants and
conditions hereof, and all applications thereof not held invalid, void or
unenforceable shall continue in full force and effect and shall in no way
be affected, impaired or invalidated thereby.
(f) This Guaranty may be executed in any number of counterparts,
each of which shall be deemed an original hereof and all of which together
shall constitute but one and the same instrument.
(g) The use of the words "herein", "hereof", "hereunder" and any
other words of similar import refer to this Guaranty as a whole and not to
any particular paragraph, subparagraph or other subdivision of this
Guaranty unless specifically noted otherwise in this Guaranty. The use
of the word "person" in this Guaranty shall refer to and include any natural
person, entity, corporation, partnership, association, firm, company,
joint venture and governmental authority.
(h) The headings of the paragraphs of this Guaranty are for con-
venience of reference only, and are not to be considered a part hereof,
and shall not limit or expand or otherwise affect any of the terms hereof.
(i) GUARANTOR AND LENDER (BY ITS ACCEPTANCE HEREOF) DO HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON
IN CONNECTION WITH THE LOANS, THE BANKER'S ACCEPTANCES OR THE LOAN DOCU-
MENTS. THIS WAIVER BY GUARANTOR OF ITS RIGHT TO A JURY TRIAL IS A MATERIAL
INDUCEMENT FOR LENDER TO MAKE THE LOANS AND ISSUE THE BANKER'S ACCEPTANCES.
(j) In the event Lender seeks to enforce this Guarantor by legal
action, Guarantor hereby waives the right to be sued in the city or county
of Guarantor's principal place of business. The Guarantor does hereby
irrevocably and unconditionally submit to the non-exclusive jurisdiction
of any United States Federal or Florida state court sitting in Dade County,
Florida, in any action or proceeding arising out of or connected (directly
or indirectly) to this Guaranty. Guarantor agrees that any final judgment
in any such action shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any other manner provided by law.
Nothing in this Section shall affect the right of Lender to bring any
action or proceeding against Guarantor or its property in the courts of
any other jurisdiction. The foregoing consent, in advance, to the juris-
diction of the above-mentioned courts is a material inducement for Lender
to make the Loans and issue the Banker's Acceptances. The Guarantor agrees
and consents to the service of process upon Guarantor in connection with
any suit, action or proceeding arising out of or related to (directly or
indirectly) this Guaranty by certified mail, return receipt requested, to
the address of the Guarantor provided in Section 19 above; provided, how-
ever, that the foregoing shall not affect the right of Lender to effect
the service of process in any other manner provided by law.
(k) In this Guaranty, wherever the context so requires, the
neuter gender includes the masculine and/or feminine gender, the singular
numbers include the plural, and the plural numbers include the singular.
(l) This Guaranty creates a continuing obligation and the obli-
gation of Guarantor hereunder shall be binding upon Guarantor and its
successors, heirs, representatives and assigns and shall inure to the
benefit of and be enforceable by Lender and its successors and assigns.
IN WITNESS WHEREOF, the Guarantor has duly executed this Guaranty as
of the day and year first above written.
Signed, sealed and delivered MEDICORE, INC., a Florida
in the presence of: corporation
/s/Xxxxxx X. Xxxxxxxx
_________________________ By____________________________
Name: XXXXXX X. XXXXXXXX
Title: Chairman of the Board,
_________________________ CEO & President
STATE OF NEW JERSEY )
)ss.:
COUNTY OF BERGEN )
The foregoing instrument was acknowledged before me this ____ day of
Deember, 1997, by Xxxxxx X. Xxxxxxxx, the Chairman of the Board, CEO &
------- ------------------ ----------------------------
President of MEDICORE, INC., a Florida corporation, on behalf of such
---------
corporation. Such individual:
----- is personally known to me or
X
----- produced U.S. Passport as identification.
/s/ Xxxxx X. Xxx
----------------------------
Notary Public
Printed Name of Notary:
My Commission Expires: Xxxxx X. Xxx
Notary Public of New Jersey
My Commission Expires March 6, 2000
[Notarial Seal]
