Exhibit 6.28
GUARANTY
Overland Park , KS
---------------------- --------
(City) (State)
October 15, 2001
-----------------------------
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and to induce Brooke Credit Corporation (herein, with
its participants, successors and assigns, called "Lender"), at its option, at
any time or from time to time to make loans or extend other accommodations to or
for the account of The Xxxxxxx Agency, L.L.C.
________________________________________________________________________ (herein
called "Borrower") or to engage in any other transactions with Borrower, the
Undersigned hereby absolutely and unconditionally guarantees to the Lender the
full and prompt payment when due, whether at maturity or earlier by reason of
acceleration or otherwise, of the debts, liabilities and obligations described
as follows:
A. If this |_| is checked, the Undersigned guarantees to Lender the
payment and performance of the debt, liability or obligation of
Borrower to Lender evidenced by or arising out of the following:
----------------------------------------------------------------------
and any extensions, renewals or replacements thereof
------------------------------------- (hereinafter referred to as the
"Indebtedness").
B. If this |X| is checked, the Undersigned guarantees to Lender the
payment and performance of each and every debt, liability and
obligation of every type and description which Borrower may now or at
any time hereafter owe to Lender (whether such debt, liability or
obligation now exists or is hereafter created or incurred, and whether
it is or may be direct or indirect, due or to become due, absolute or
contingent, primary or secondary, liquidated or unliquidated, or
joint, several, or joint and several; all such debts, liabilities and
obligations being hereinafter collectively referred to as the
"Indebtedness"). Without limitation, this guaranty includes the
following described debt(s): Promissory note #3537 dated October 15,
2001 in the amount of $440,656.58.
The term "Indebtedness" as used in this guaranty shall not include any
obligations entered into between Borrower and Lender after the date hereof
(including any extensions, renewals or replacements of such obligations) for
which Borrower meets the Lender's standard of creditworthiness based on
Borrower's own assets and income without the addition of a guaranty or for which
a guaranty is required but Borrower chooses someone other than the joint
Undersigned to guaranty the obligation.
The Undersigned further acknowledges and agrees with Lender that:
1. No act or thing need occur to establish the liability of the Undersigned
hereunder, and no act or thing, except full payment and discharge of all
indebtedness, shall in any way exonerate the Undersigned or modify, reduce,
limit or release the liability of the Undersigned hereunder.
2. This is an absolute, unconditional and continuing guaranty of payment of
the Indebtedness and shall continue to be in force and be binding upon the
Undersigned, whether or not all Indebtedness is paid in full, until this
guaranty is revoked by written notice actually received by the Lender, and such
revocation shall not be effective as to Indebtedness existing or committed for
at the time of actual receipt of such notice by the Lender, or as to any
renewals, extensions and refinancings thereof.
The Undersigned represents and warrants to the Lender that the Undersigned
has a direct and substantial economic interest in Borrower and expects to derive
substantial benefits therefrom and from any loans and financial accommodations
resulting in the creation of Indebtedness guaranteed hereby, and that this
guaranty is given for a corporate purpose. The Undersigned agrees to rely
exclusively on the right to revoke this guaranty prospectively as to future
transactions, by written notice actually received by
Lender if at any time, in the opinion of the directors or officers of the
Undersigned, the corporate benefits then being received by the Undersigned in
connection with this guaranty are not sufficient to warrant the continuance of
this guaranty as to future Indebtedness. Accordingly, so long as this guaranty
is not revoked prospectively in accordance with this guaranty, the Lender may
rely conclusively on a continuing warranty, hereby made, that the Undersigned
continues to be benefited by this guaranty and the Lender shall have no duty to
inquire into or confirm the receipt of any such benefits, and this guaranty
shall be effective and enforceable by the Lender without regard to the receipt,
nature or value of any such benefits.
3. If the Undersigned shall be dissolved or shall be or become insolvent
(however defined) or revoke this guaranty, then the Lender shall have the right
to declare immediately due and payable, and the Undersigned will forthwith pay
to the Lender, the full amount of all Indebtedness, whether due and payable or
unmatured. If the Undersigned voluntarily commences or there is commenced
involuntarily against the Undersigned a case under the United States Bankruptcy
Code, the full amount of all Indebtedness, whether due and payable or unmatured,
shall be immediately due and payable without demand or notice thereof.
4. The liability of the Undersigned hereunder shall be limited to 50% of
the outstanding principle balance (if unlimited or if no amount is stated, the
Undersigned shall be liable for all Indebtedness, without any limitation as to
amount), plus accrued interest thereon and all attorneys' fees, collection costs
and enforcement expenses referable thereto. Indebtedness may be created and
continued in any amount, whether or not in excess of such principal amount,
without affecting or impairing the liability of the Undersigned hereunder. The
Lender may apply any sums received by or available to Lender on account of the
Indebtedness from Borrower or any other person (except the Undersigned), from
their properties, out of any collateral security or from any other source to
payment of the excess. Such application of receipts shall not reduce, affect or
impair the liability of the Undersigned hereunder. If the liability of the
Undersigned is limited to a stated amount pursuant to this paragraph 4, any
payment made by the Undersigned under this guaranty shall be effective to reduce
or discharge such liability only if accompanied by a written transmittal
document, received by the Lender, advising the Lender that such payment is made
under this guaranty for such purpose.
5. The Undersigned will pay or reimburse Lender for all costs and expenses
(including reasonable attorneys' fees and legal expenses) incurred by Lender in
connection with the protection, defense or enforcement of this guaranty in any
litigation or bankruptcy or insolvency proceedings.
THIS GUARANTY INCLUDES THE ADDITIONAL PROVISIONS ON PAGE 2, ALL OF WHICH
ARE MADE A PART HEREOF.
This guaranty is |X| unsecured; |_| secured by a mortgage or security
agreement dated ___________; |_| secured by ___________________________________.
IN WITNESS WHEREOF, this guaranty has been duly executed by the Undersigned
the day and year first above written.
American Financial Group, L.L.C.
------------------------------------
By /s/ Xxxx Xxxxx (Title)
---------------------------------
Xxxx Xxxxx, Operating Manager
By _________________________________
"Undersigned" shall refer to all
persons who sign this guaranty,
severally and jointly.
ADDITIONAL PROVISIONS
6. Whether or not any existing relationship between the Undersigned and
Borrower has been changed or ended and whether or not this guaranty has been
revoked, the Lender may, but shall not be obligated to, enter into transactions
resulting in the creation or continuance of Indebtedness, without any consent or
approval by the Undersigned and without any notice to the Undersigned. The
liability of the Undersigned shall not be affected or impaired by any of the
following acts or things (which the Lender is expressly authorized to do, omit
or suffer from time to time, both before and after revocation of this guaranty,
without notice to or approval by the Undersigned): (i) any acceptance of
collateral security, guarantors, accommodation parties or sureties for any or
all Indebtedness; (ii) any one or more extensions or renewals of Indebtedness
(whether or not for longer than the original period) or any modification of the
interest rates, maturities or other contractual terms applicable to any
Indebtedness; (iii) any waiver adjustment, forbearance, compromise or indulgence
granted to Borrower, any delay or lack of diligence in the enforcement of
Indebtedness, or any failure to institute proceedings, file a claim, give any
required notices or otherwise protect any Indebtedness; (iv) any full or partial
release of, settlement with, or agreement not to xxx, Borrower or any other
guarantor or other person liable in respect of any Indebtedness; (v) any
discharge of any evidence of Indebtedness or the acceptance of any instrument in
renewal thereof or substitution therefor; (vi) any failure to obtain collateral
security (including rights of setoff) for Indebtedness, or to see the proper or
sufficient creation and perfection thereof, or to establish the priority
thereof, or to protect, insure, or enforce any collateral security; or any
release, modification, substitution, discharge, impairment, deterioration,
waste, or loss of any collateral security; (vii) any foreclosure or enforcement
of any collateral security; (viii) any transfer of any Indebtedness or any
evidence thereof; (ix) any order of application of any payments or credits upon
Indebtedness; (x) any election by the Lender under ss.1111(b)(2) of the United
States Bankruptcy Code.
7. The Undersigned waives any and all defenses, claims and discharges of
Borrower, or any other obligor, pertaining to Indebtedness, except the defense
of discharged by payment in full. Without limiting the generality of the
foregoing, the Undersigned will not assert, plead or enforce against the Lender
any defense of waiver, release, estoppel, statute of limitations, res judicata,
statute of frauds, fraud, forgery, incapacity, minority, usury, illegality or
unenforceability which may be available to Borrower or any other person liable
in respect of any Indebtedness, or any setoff available against the Lender to
Borrower or any such other person, whether or not on account of a related
transaction. The Undersigned expressly agrees that the Undersigned shall be and
remain liable, to the fullest extent permitted by applicable law, for any
deficiency remaining after foreclosure of any mortgage or security interest
securing Indebtedness, whether or not the liability of Borrower or any other
obligor for such deficiency is discharged pursuant to statute or judicial
decision. The Undersigned shall remain obligated, to the fullest extent
permitted by law, to pay such amounts as though Borrower's obligations had not
be discharged.
8. The Undersigned further agree(s) that Undersigned shall be and remain
obligated to pay Indebtedness even though any other person obligated to pay
Indebtedness, including Borrower, has such obligation discharged in bankruptcy
or otherwise discharged by law. "Indebtedness" shall include post-bankruptcy
petition interest and attorneys' fees and any other amounts which Borrower is
discharged from paying or which do no accrue to Indebtedness due to Borrower's
discharge, and Undersigned shall remain obligated to pay such amounts as fully
as if Borrower's obligations had not be discharged.
9. If any payment applied by the Lender to Indebtedness is thereafter set
aside, recovered, rescinded or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or reorganization of
Borrower or any other obligor), the Indebtedness to which such payment was
applied shall for the purposes of this guaranty be deemed to have continued in
existence, notwithstanding such application, and this guaranty shall be
enforceable as to such Indebtedness as fully as if such application had never
been made.
10. The Undersigned waive(s) any claim, remedy or other right which the
Undersigned may now have or hereafter acquire against Borrower or any other
person obligated to pay Indebtedness arising out of the creation or performance
of the Undersigned's obligation under this guaranty, including, without
limitation, any right of subrogation, contribution, reimbursement,
indemnification, exoneration or any right to participate in any claim or remedy
the Undersigned may have against the Borrower, collateral, or other party
obligated for Borrower's debt, whether or not such claim, remedy, or right
arises in equity, or under contract, statute or common law.
11. The Undersigned waives presentment, demand for payment, notice of
dishonor or nonpayment, and protest of any instrument evidencing Indebtedness.
The Lender shall not be required first to resort for payment of the Indebtedness
to Borrower or other persons or their properties, or first to enforce, realize
upon or exhaust any collateral security for Indebtedness, before enforcing this
guaranty.
12. The liability of the Undersigned under this guaranty is in addition to
and shall be cumulative with all other liabilities of the Undersigned to the
Lender as guarantor or otherwise, without any limitation as to amount, unless
the instrument or agreement evidencing or creating such other liability
specifically provides the contrary.
13. The Undersigned represents and warrants to the Lender that (i) the
Undersigned is a corporation duly organized and existing in good standing and
has full power and authority to make and deliver this guaranty; (ii) the
execution, delivery and performance of this guaranty by the Undersigned have
been duly authorized by all necessary action of its directors and shareholders
and do not and will not violate the provisions of, or constitute a default
under, any presently applicable law or its articles of incorporation or by-laws
or any agreement presently binding on it; (iii) this guaranty has been duly
executed and delivered by the authorized officers of the Undersigned and
constitutes its lawful, binding and legally enforceable obligation (subject to
the United States Bankruptcy Code and other similar laws generally affecting the
enforcement of creditors' rights); and (iv) the authorization, execution,
delivery and performance of this guaranty do not require notification to,
registration with, or consent or approval by, any federal, state or local
regulatory body or administrative agency.
14. This guaranty shall be effective upon delivery to the Lender, without
further act, condition or acceptance by the Lender, shall be binding upon the
Undersigned and the successors and assigns of the undersigned and shall inure to
the benefit of the Lender and its participants, successors and assigns. Any
invalidity or unenforceability of any provision of application of this guaranty
shall not affect other lawful provisions and application hereof, and to this end
the provisions of this guaranty are declared to be severable. Except as allowed
by the terms herein, this guarantee may not be waived, modified, amended,
terminated, released or otherwise changed except by a writing signed by the
Undersigned and the Lender. This guaranty shall be governed by the laws of the
State in which it is executed. The undersigned waives notice of the Lender's
acceptance hereof.
