Exhibit 10.2
RBC CENTURA UNCONDITIONAL
GUARANTY AGREEMENT
(Single Loan)
THIS SINGLE LOAN GUARANTY AGREEMENT ("Guaranty Agreement"), entered into as of
the September 30, 2005, by XXXXX CORPORATION, an Indiana corporation
("Guarantor", whether one or more) with a mailing address of 000 Xxxxxxxxx
Xxxxxx, 0xx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, to RBC CENTURA BANK ("Bank"),
with a mailing address of 000 X. Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxxxx
00000
A. M-TRON INDUSTRIES, INC., a Delaware corporation and PIEZO TECHNOLOGY, INC., a
Florida corporation ("Customer", whether one or more) desires to obtain a loan
or other extension of credit from Bank.
B. Bank is willing to make the loan or otherwise extend credit to Customer, but
has conditioned the making of the loan or other extension of credit on Guarantor
executing and delivering to Bank this Guaranty Agreement.
NOW, THEREFORE, in consideration of the premises and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce Bank to make the loan contemplated by that certain Loan
Agreement by and between Customer and Bank, dated as of the date hereof (the
"Loan Agreement"), that certain Consolidated, Amended and Restated Renewal
Commercial Promissory Note by Customer in favor of Bank dated September 30, 2005
in the original principal amount of Three Million Forty Thousand Dollars
($3,040,000.00) (the "Note") and the documents ancillary to the Loan Agreement
(together with the Note and the Loan Agreement, the "Loan Documents", which may
be in a written or tangible medium, electronic medium or some other medium and
include all renewals, extensions, amendments, modifications, replacements and
substitutions thereof and therefor) and to otherwise extend the credit requested
by Customer under the Loan Documents, Guarantor jointly and severally, if more
than one, hereby absolutely and unconditionally guarantees to Bank, its
successors and assigns: (1) the punctual payment when due (whether by
acceleration or otherwise) of all outstanding principal under the Note or other
instrument, chattel paper, account, payment intangible or other general
intangible, agreement or other evidence of the indebtedness incurred under the
Note to Bank, together with all due and unpaid interest (to include default
interest), finance charges, late payment fees and other fees and charges,
prepayment premiums and all costs and expenses (to include reasonable attorneys'
fees and fees of legal assistants, reasonable fees of accountants appraisers,
adjusters, engineers, surveyors or other professionals employed or retained by
and on behalf of Bank, incurred in connection with the Loan Documents, and
intangible personal property taxes, documentary stamp taxes, excise taxes and
other similar taxes) payable and to be payable thereunder, and incurred and to
be incurred in connection therewith; (2) the punctual payment by Customer of all
of their Obligations under the other Loan Documents; and (3) the punctual
payment of any and all sums advanced and paid by Bank, at its option, under the
Loan Documents, including, but not limited to, sums advanced and paid by Bank
for taxes and insurance premiums and sums advanced and paid by Bank to protect
any collateral and other security given for said indebtedness (all of the
foregoing, including, without limitation, the principal, interest, fees,
charges, premiums and costs and expenses under the Loan Agreement, Customer's
and other persons' covenants, agreements and obligations and the sums advanced
and paid by the Bank, being hereinafter collectively terms "Obligations of
Customer"); provided, however, that the maximum liability of Guarantor under
this Guaranty Agreement, at any one time outstanding, shall not exceed the
original principal amount of the Note plus all due and unpaid interest (to
include default interest), finance charges, late payment fees, and other fees
and charges, prepayment premiums, all costs and expenses due and payable by
Customer in connection with the Obligations of Customer.
In order to implement the foregoing and as additional inducements to Bank,
Guarantor further covenants and agrees:
Section 1. GUARANTY OF PAYMENT. This guaranty is and shall remain an
unconditional guaranty of payment and performance and not a guaranty of
1
collection, shall remain in full force and effect irrespective of any
interruption in the business and other dealings and relations of Customer with
Bank and shall apply to and guarantee the due and punctual payment and
performance of all Obligations of Customer due by Customer to Bank and as
otherwise provided herein. To that end, Guarantor hereby expressly waives (1)
any right to require Bank to bring any action against Customer, (2) any right to
require Bank to bring any action against any other person, (3) any right to
require Bank to recover from any collateral and other security, and (4) any
right to require Bank to recover from any balance of any deposit or other
account on the books of Bank in favor of Customer or any other person through
set-off, recoupment or otherwise; and, without limiting the generality of the
foregoing, Guarantor herewith expressly waives any right Guarantor otherwise
might have or might have had under the provisions of the Florida Statutes and
laws to require Bank to attempt to recover against Customer and to realize upon
any collateral and other security which Bank holds for the Obligations of
Customer. Any Guarantor, by a written notice, delivered personally to or
received by certified or registered United States Mail by an authorized officer
of Bank in the Bank's Loan Servicing Center (or successor thereto), at the
address of Bank first above given, or any subsequent address of Bank (as set
forth in any written notice to Guarantor of such address change) may terminate
its guaranty hereunder with respect to only those Obligations of Customer which
arise more than thirty (30) business days after the date on which such written
notice is so delivered to or received by said Bank officer. Such written notice
of termination shall be the sole and exclusive method of terminating this
guaranty as to future Obligations of Customer and notwithstanding such
termination, this Guaranty Agreement and the guaranty created hereby and all
security given for this guaranty or the Obligations of Customer shall remain in
full force and effect as to all Obligations of Customer incurred, existing or
arising in any manner prior to such termination, including, without limitation,
all Obligations of Customer arising under loan commitments which exist prior to
such termination, all Obligations of Customer under lines of credit and
revolving lines of credit for advances prior to or subsequent to such
termination and all Obligations of Customer arising from renewals, extensions,
replacements, substitutions, amendments and modifications of the Obligations of
Customer, in whole or in part, whether any of the foregoing are made with or
without notice to Guarantor before or after the effective date of such
termination.
Section 2. GUARANTIES NOT DEPENDENT. The obligation of any Guarantor executing
this Guaranty Agreement is not and the same shall not be dependent upon the
subsequent execution hereof by any other person. And, the termination of
guaranty by one or more Guarantors, or the release, settlement or compromise by
Bank from time to time and at any number of times with respect to any one or
more Guarantors, shall not affect the obligations and liability of the remaining
Guarantors hereunder, and as to the remaining Guarantors, this Guaranty
Agreement shall continue in effect as if such Guarantors had been the only
Guarantors executing this Guaranty Agreement.
Section 3. GUARANTY NOT DIMINISHED BY BANK'S ACTIONS.
3.1. FAILURE TO PERFECT LIENS. Guarantor agrees that Guarantor's liability
hereunder shall not be diminished by any failure on the part of Bank to perfect
and continue perfection of (by filing, recording or otherwise) any lien and
security interest it may now have or hereafter acquire in any property securing
this Guaranty Agreement or the Obligations of Customer.
3.2. RELEASE OR SURRENDER OF RIGHTS. Guarantor covenants and agrees that
Bank may at any time, and from time to time, in its sole discretion, do or cause
to be done any one or more of the following: (1) renew, extend and otherwise
change the time, manner, place and terms of payment of any and all of the
Obligations of Customer, and otherwise modify the Obligations of Customer; (2)
grant indulgences generally from time to time to Customer and any other person
liable for the Obligations of Customer; (3) exchange, release and surrender any
and all of the collateral and other security, or any part thereof or interest
therein, by whomsoever deposited, given or made, which is or may hereafter be
held by Bank or others on its behalf, or in which it has a lien and security
interest in connection with any and all of the Obligations of Customer and any
liabilities and obligations of Guarantor hereunder; (4) sell and otherwise
dispose of, and purchase all or parts of, or interests in, such collateral and
other security at public and private sale, or to or through any securities
intermediary or other person, and after deducting all costs and expenses of
every kind for collection, preparation for sale, sale and delivery, the net
proceeds of any such sales and other dispositions may be applied by Bank toward
payment and satisfaction of the Obligations of Customer, in such order as Bank
in its discretion may elect, or in such order as Bank may be required to apply
the proceeds under applicable law - if applicable law directs a specific manner
of application of proceeds; or (5) settle and compromise with the Customer, any
insurance carrier and any other person liable thereon, any and all of the
2
Obligations of Customer, or subordinate the payment of all and any part of same
to the payment of any other debts and claims which may at any time be due and
owing to Bank or any other persons, all in such manner and upon such terms as
Bank may deem proper or desirable, and without notice to or further assent from
Guarantor, it being agreed that Guarantor shall be and remain bound by this
Guaranty Agreement irrespective of the existence, value and condition of any
collateral and other security, or the impairment of any collateral and other
security (to include, without limitation, impairment due to any failure to
perfect or continue perfection of a lien and a security interest and any other
act or inaction by Bank or other persons relative to the administration of this
Guaranty Agreement, the Obligations of Customer and any collateral and other
security), or the unenforceability of any of the Obligations of Customer or the
discharge and release of Customer from liability for any of the Obligations of
Customer and notwithstanding any such change, exchange, settlement, compromise,
surrender, release, failure to perfect or continue perfection and other act or
inaction relative to administration, sale and other disposition, application,
renewal or extension and notwithstanding also that the Obligations of Customer
may at any time exceed the aggregate principal sum hereinabove prescribed (if
any such limiting sum appears). If Bank should request Guarantor to consent to
any of the foregoing, such request by Bank or consent by Guarantor shall not
constitute a waiver by Bank of the provisions of this Section which permit such
actions without Guarantor's consent, nor of any other provision of this Guaranty
Agreement relating to acts and inactions of Bank and such request or consent
shall not create a course of dealing between Bank and Guarantor that would
require the consent of Guarantor to any of the foregoing in the future.
Furthermore, this Guaranty Agreement shall not be construed to impose any
obligation on Bank to extend or continue to extend credit, to otherwise deal
with Customer at any time, or to take or refrain from taking any acts relative
to the administration of any of the Obligations of Customer and any collateral
and other security for the Obligations of Customer or this Guaranty Agreement.
3.3. WAIVER OF DEFAULT; FORBEARANCE. No waiver by Bank of any default by
Guarantor or Customer, or forbearance with respect to any default by either,
shall operate as a waiver of any other default or of the same default on a
future occasion - or require the forbearance with respect thereto - and no
waiver or forbearance by Bank shall limit Guarantor's liability under this
Guaranty Agreement or negatively affect the validity and enforceability of this
Guaranty Agreement in accordance with its stated terms.
Section 4. SET-OFF; APPLICATION OF PAYMENTS; SECURITY.
4.1. SET-OFF ON SERVICE OF PROCESS. If any process is issued or ordered to
be served upon Bank, seeking to seize Customer's or Guarantor's rights or
interests in any deposit account, such deposit account shall be deemed to have
been and shall be set-off against any and all Obligations of Customer or all
obligations and liabilities of Guarantor hereunder, as applicable, as of the
time of the issuance of any such writ or process, whether or not Customer,
Guarantor or Bank shall then have been served with notice thereof.
4.2. APPLICATION OF MONEYS AND OTHER VALUE. All moneys and other things of
value available to and received by Bank for application toward payment of (or
reduction of) the Obligations of Customer may be applied by Bank to such
individual debts, liabilities, obligations and claims in such manner, and
apportioned in such amounts and at such times, as Bank, in its sole discretion,
may deem suitable or desirable, or in such order as Bank may be required to
apply the money or other things of value under applicable law - if applicable
law directs a specific manner of application.
4.3. SECURITY; SET-OFF. Where any obligation of Guarantor is due and unpaid
Bank hereunder, Bank is herewith authorized to exercise its right of set-off or
"bank lien" as to any demand, checking, time, savings, and other deposit
accounts of any nature maintained in and with it by Guarantor, without advance
notice. Such right of set-off shall also be applicable and exercised by Bank, in
its sole discretion, where Bank is indebted to any Guarantor by reason of any
certificate of deposit, bond, instrument or otherwise. Bank also is granted and
shall otherwise have recoupment rights and may exercise such recoupment rights
where any obligation of Guarantor is due and unpaid to Bank hereunder.
Section 5. FINANCIAL INFORMATION OF GUARANTOR; BANK'S RECORDS CONTROLLING.
Guarantor shall furnish Bank with the following financial statements: (i)
audited, annual financial statements of Guarantor within 90 days of the close of
3
Guarantor's fiscal year, with no limitations of scope and prepared by an
independent certified public accountant acceptable to Bank; and (ii) quarterly
financial statements, certified by an officer of Guarantor to be true, correct
and stated on a basis consistent with the annual statements required to be
supplied by Guarantor to Bank.
Any statement of account or records that bind the Customer shall be binding
against the Guarantor and the records of Bank maintained in the ordinary course
of its business with respect to the Obligations of Customer shall be binding on
Guarantor in all respects, including, without limitation, the extent and nature
of the Obligations of Customer and the liabilities of Guarantor under this
Guaranty Agreement.
Section 6. CUSTOMER'S ORGANIZATION STATUS.
6.1. AUTHORITY OF CUSTOMER'S OFFICERS AND EMPLOYEES. If Customer is not an
individual but a registered organization or other form of organization, this
Guaranty Agreement covers all Obligations of Customer purporting to be created
or undertaken on behalf of such organization by any one or more shareholder,
director, officer, executive, employee, partner, manager, member or agent of
such organization, without regard to the actual authority of any such person,
whether or not organization resolutions, proper or otherwise, are given by any
Customer to Bank, and whether or not such purported organizations are legally
chartered, registered or organized.
6.2. CHANGE IN LEGAL STATUS. In the event of a change in, or amendment or
modification of the legal status or existence of the Customer, this Guaranty
Agreement shall continue and shall also cover the indebtedness of the Customer
under the new or amended status, according to the terms hereof guaranteeing the
obligations of the original Customer.
Section 7. GUARANTOR'S WAIVER OF RIGHTS.
7.1. INTENTIONALLY OMITTED.
7.2. REINSTATEMENT OF OBLIGATIONS OF CUSTOMER. Guarantor agrees that in the
event any judgment or any court order or any administrative order for turnover
or recovery is entered against Bank (whether by consent, compromise, settlement
or otherwise) for, or Bank is required or agrees to repay (1) the amount of any
monetary payment or transfer of any property (whether real, personal or mixed,
tangible or intangible, or the value thereof) made to Bank by or on behalf of
the Customer or Guarantor for credit to the Obligations of Customer, or (2) the
amount of any set-off or recoupment exercised by Bank and credited to
Obligations of Customer, then in such event (and notwithstanding the prior
discharge or satisfaction in whole or in part of any or all Obligations of
Customer due Bank or the written or stamped notation of cancellation, release,
or satisfaction affixed to this Guaranty Agreement or any instrument of
indebtedness evidencing the Obligations of Customer, or any prior notice of the
termination of this Guaranty Agreement as to future debts of Customer) the
amount or value of any such payments, property, set-off and recoupment recovered
from Bank shall be deemed to be Obligations of Customer and this Guaranty
Agreement and the liabilities of Guarantor hereunder shall be automatically
revived and reinstated and shall continue and remain in full force and effect as
to the same, together with interest thereon from date of recovery at the rate
applicable to the Obligations of Customer to which any such payments, transfers
and set-off were credited, costs of court, and the reasonable attorneys' fees
incurred by Bank in connection therewith.
7.3. WAIVER OF SUBROGATION. Until payment in full of the Obligations of
Customer, Guarantor expressly waives, for Bank's benefit and the benefit of
Customer and any other guarantor, maker, endorser, obligor and debtor on the
Obligations of Customer, any and all rights of recourse against Customer, and
any other guarantor, maker, endorser, obligor and debtor on the Obligations of
Customer, and property and assets of the same, arising out of any payment made
under or pursuant to this Guaranty Agreement, including any claim of
subrogation, reimbursement, exoneration, contribution and indemnity that
Guarantor may have against the Customer, any other guarantor, maker, endorser,
obligor and debtor on the Obligations of Customer. Guarantor will not enter into
any contract or agreement in violation of the provisions hereinabove, and any
such purported contract or agreement shall be void ab initio.
4
Section 8. EVENTS OF DEFAULT; REMEDIES.
8.1. EVENTS OF DEFAULT. Guarantor shall be in default under this Guaranty
Agreement upon the happening of any of the following events, circumstances and
conditions, or the occurrence of an event which, with the giving of notice or a
lapse of time, or both, would become an event of default hereunder, to wit:
(a) default, beyond any applicable cure period, in the payment or
performance of any of the Obligations of Customer whether now existing
or hereafter arising;
(b) any warranty, representation or statement made or furnished,
or hereafter made or furnished, to Bank or others for the benefit of
Bank, by or on behalf of Guarantor, in connection with this Guaranty
Agreement, or to induce Bank to extend credit or deal with Guarantor
or otherwise with respect to the Obligations of Customer proving to
have been false or inaccurate in any material respect when made or
furnished; and
(c) insolvency, business failure, appointment of a receiver for
any part of the property of, assignment for the benefit of creditors
by, or the commencement of any proceeding under any state or federal
bankruptcy or insolvency laws by or against Guarantor.
8.2. REMEDIES. Upon the occurrence of any of the foregoing events,
circumstances or conditions of default set forth in SECTION 8.1 above, at Bank's
option, all of the obligations evidenced and created in this Guaranty Agreement
and secured or guaranteed hereby shall immediately be due and payable without
demand or notice. Furthermore, whether or not Bank accelerates the aforesaid
obligations because of the occurrence of an event of default, Bank may exercise,
and cause to be exercised by others on its behalf, all of the rights and
remedies granted hereunder that may be exercisable by Bank upon the occurrence
of an event of default, all of the rights or remedies of a secured party or
holder-in-due course under the Uniform Commercial Code in the jurisdiction whose
laws govern this Guaranty Agreement, as the same is in effect from time to time,
and all rights and remedies otherwise afforded in law and in equity under other
laws of the aforementioned jurisdiction.
Section 9. MISCELLANEOUS.
9.1. NO EFFECT ON OTHER GUARANTIES. This Guaranty Agreement does not
terminate, cancel, supersede, renew or substitute for any existing guaranty or
other supporting obligation to Bank by any Guarantor, unless expressly provided
herein, and the execution and delivery hereafter to Bank by any Guarantor of a
new guaranty and other supporting obligation shall not terminate, cancel,
supersede, or be a renewal or substitution for this Guaranty Agreement, unless
expressly provided therein, and all rights and remedies of Bank hereunder, under
any other existing guaranty agreement and other supporting obligation, and under
any guaranty agreement and other supporting obligation hereafter given to Bank
by any Guarantor shall be cumulative and may be enforced singly, successively,
alternately and concurrently.
9.2. NO RELIANCE BY GUARANTOR ON BANK. Guarantor warrants and covenants
that Guarantor has made such inquiries as Guarantor deems necessary in order to
ascertain the financial condition of Customer, and has, in fact, ascertained the
financial condition of Customer and is satisfied with such financial condition,
that Guarantor has adequate means to obtain from Customer, on a continuing
basis, information concerning the financial condition of Customer, and that
Guarantor has not relied, and will not rely, on Bank to provide such
information, now or in the future. The relationship of Bank to Guarantor is that
of a creditor to an obligor or debtor; and in furtherance thereof and in
explanation thereof, Bank has no fiduciary, trust, guardian, representative,
partnership, joint venturer or other similar relationship to or with Guarantor
and no such relationship shall be drawn or implied from (1) this Guaranty
Agreement and any security documents relative to this Guaranty Agreement, (2)
the Obligations of Customer and any of the Loan Documents and (3) any of Bank's
actions or inactions hereunder or thereunder, or with respect hereto or thereto
- and, Bank has no obligation to Guarantor and any other person relative to
administration of the Obligations of Customer, the Loan Documents, this Guaranty
Agreement and any collateral and other security for any of the foregoing, or any
part or parts thereof or interests therein.
5
9.3. CREDIT INVESTIGATIONS; SHARING OF INFORMATION. Bank is irrevocably
authorized by Guarantor to make or have made such credit investigations as it
deems appropriate to evaluate Guarantor's credit, personal and financial
standing and employment, and Guarantor authorizes Bank to share with consumer
reporting agencies and creditors its experiences with Guarantor and other
information in Bank's possession relative to Guarantor. Bank shall not have any
obligation or responsibility to do any one or more of the following: (1) protect
or preserve any collateral and other security given or to be given in connection
herewith against the rights of third persons having an interest therein; (2)
provide information to third persons relative to the Obligations of Customer,
Bank's liens or security interests in any collateral and other security, this
Guaranty Agreement or otherwise with respect to Guarantor; or (3) subordinate
its security interests in any collateral and other security to the interests of
any third persons or to enter into control agreements relative to such
collateral and other security.
9.4. MAINTENANCE OF RECORDS BY BANK. Bank is authorized to maintain, store
and otherwise retain this Guaranty Agreement, any separate security documents
and other agreements executed and delivered or to be executed and delivered by
Guarantor and others on Guarantor's behalf to Bank in their original, inscribed
tangible form or a record thereof in an electronic medium or other non-tangible
medium which permits such record to be retrieved in a perceivable form; and a
record of this Guaranty Agreement and such other documents and agreements in a
non-tangible medium which is retrievable in a perceivable form shall be the
agreement of Guarantor and others on Guarantor's behalf, as applicable, to the
same extent as if this Guaranty Agreement and such other documents and
agreements were in their original, inscribed tangible medium and such a record
shall be binding on and enforceable against Guarantor and such others
notwithstanding the same are in a non-tangible form and notwithstanding the
signatures of the signatories thereof are electronic, typed, printed, computer
generated, facsimiles or other reproductions, representations or forms.
9.5. INTENTIONALLY OMITTED.
9.6. DOCUMENTARY AND INTANGIBLES TAXES. To the extent not prohibited by law
and notwithstanding who is liable for payment of the taxes and fees, Guarantor
shall pay, on Bank's demand, all intangible personal property taxes, documentary
stamp taxes, excise taxes and other similar taxes assessed, charged or required
to be paid in connection with this Guaranty Agreement.
9.7. PAYMENT OF EXPENSES. Without limiting any other provision of this
Guaranty Agreement relating to Guarantor's payment of costs and expenses
incurred by and on behalf of Bank, but in addition thereto, Guarantor shall pay
to Bank on demand any and all costs and expenses of collection, including
reasonable attorneys' fees after default and, if applicable law prohibits
payment of attorneys' fees when collection is through an attorney who is a
salaried employee of Bank, referral to an attorney not a salaried employee of
Bank. Guarantor shall also pay all cost and expenses incurred or paid by and on
behalf of Bank in protecting its interest in any collateral and other security
securing this Guaranty Agreement and in enforcing and protecting its rights
hereunder. All of the foregoing costs and expenses shall be paid with interest
thereon at the contract rate at which interest accrues from time to time on the
Obligations of Customer - or if interest accrues at different contract rates,
any one of the contract rates at which interest accrues as selected by Bank, in
its sole discretion, which rate may be fixed or variable - from the earlier of
the date paid, incurred or on which they become due until such costs and
expenses are paid by Guarantor. All sums so paid and expended by Bank, and the
interest thereon, shall be added to the amounts payable under this Guaranty
Agreement.
9.8. WAIVER OF NOTICE AND PRESENTMENT; DEFENSES. Guarantor hereby waives to
the extent permitted by law: (1) notice of acceptance of this Guaranty
Agreement; (2) notice of extensions of credit and continuations of credit
extensions to Customer by Bank; (3) notice of entering into and engaging in
business transactions and contractual relationships and any other dealings
between Customer and Bank; (4) presentment and demand for payment of any of the
Obligations of Customer; (5) protest and notice of dishonor or default to
Guarantor and to any other person with respect to any of the Obligations of
Customer and with respect to any security therefor; (6) all other notices to
which Guarantor might otherwise be entitled; (7) any demand for payment under
this Guaranty Agreement; (8) any defense of any kind which the Customer might
have; and (9) application of any other defenses available to Guarantor.
6
9.9. JURY, VENUE, JURISDICTION. This Guaranty Agreement shall be deemed to
have been executed and delivered in the State of Florida, regardless of where
the signatories may be located at the time of execution, and this Guaranty
Agreement shall be governed by and construed in accordance with the substantive
laws of such jurisdiction, excluding, however, the conflict of law and choice of
law provisions thereof. Grantor: (a) TO THE EXTENT PERMITTED BY LAW, WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING FROM OR RELATED TO THIS GUARANTY
AGREEMENT OR ANY OF THE OBLIGATIONS OF Customer; (b) irrevocably submits to the
jurisdiction of either (1) the state courts of the jurisdiction identified above
in this Section or (2) a United States District Court for any federal district
in such jurisdiction over any action or proceeding arising from or related to
this Guaranty Agreement or any of the Obligations of Customer; and (c)
irrevocably waives, to the fullest extent Grantor may effectively do so, the
defense of improper venue or an inconvenient forum to the maintenance of any
such action or proceeding. Nothing in this Section shall affect or impair Bank's
right to serve legal process in any manner permitted by law or Bank's right to
bring any action or proceeding against Guarantor or Guarantor's property in the
courts of any other jurisdiction.
9.10. NO USURY; NO ILLEGAL PROVISIONS. Anything contained herein to the
contrary notwithstanding, if for any reason the effective rate of interest on
any of the Obligations of Customer should exceed the maximum lawful contract
rate, the effective rate of such obligations shall be deemed reduced to and
shall be such maximum lawful contract rate. Any sums of interest which have been
collected in excess of such maximum lawful contract rate shall be applied, at
Bank's election - if permitted by applicable law, as a credit against the unpaid
principal balance due on the Obligations of Customer, or hereunder, or returned
to the person who paid the interest that exceeded the maximum lawful contract
rate. Wherever possible each provision of this Guaranty Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty Agreement shall be prohibited 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 Agreement
9.11. JOINT AND SEVERAL LIABILITY; USE OF TERMS. If more than one person
has signed this Guaranty Agreement, such parties are jointly and severally
obligated hereunder. Further, (1) words in the masculine gender mean and include
correlative words of the feminine and neuter genders and words importing the
singular numbered meaning include the plural number, and vice versa; (2) words
importing persons include firms, companies, associations, general partnerships,
limited partnerships, limited liability partnerships, limited liability limited
partnerships, limited liability companies, trusts, business trusts, corporations
and other organizations, including public and quasi-public bodies, as well as
individuals; (3) as the context requires, the word "and" may have a joint
meaning or a several meaning and the word "or" may have an inclusive meaning or
an exclusive meaning; (4) the term "Guarantor", as used herein, shall (if signed
by more than one person) mean the "Guarantors and each of them"; (5) the term
"subsidiary" means any registered organization or other organization (i) the
majority (by number of votes) of the outstanding voting interests of which is at
the time owned or controlled by Guarantor or Customer, or by one or more
Subsidiaries of Guarantor or Customer, or Guarantor or Customer and one or more
Subsidiaries of Guarantor or Customer, or (ii) otherwise controlled by or within
the control of Guarantor, Customer or any Subsidiary of either; (6) terms used
in this Guaranty Agreement which are not defined herein shall have the meaning
ascribed thereto in the Uniform Commercial Code in effect from time to time in
the jurisdiction whose laws govern this Guaranty Agreement; (7) all references
to "Guaranty Agreement" mean this Guaranty Agreement and all amendments,
modifications, renewals, extensions, replacements and substitutions thereof and
therefor; and (8) this Guaranty Agreement shall not be applied, interpreted and
construed more strictly against a person because that person or that person's
attorney drafted this Guaranty Agreement.
9.12. SUCCESSORS AND ASSIGNS. This Guaranty Agreement shall be binding upon
Guarantor, and the heirs, executors, administrators, successors and assigns of
Guarantor; it shall inure to the benefit of, and be enforceable by Bank, and its
successors, transferees and assigns; and Guarantor waives and will not assert
against any transferee or assignee any claims, defenses, set-offs and rights of
recoupment which Guarantor could assert against Bank, except defenses which
Guarantor cannot waive. The death of Guarantor shall not terminate any liability
hereunder. This Guaranty Agreement shall remain in force after Guarantor's death
until written notice of termination, sent by a legal representative of
Guarantor, is received by Bank as set forth in SECTION 1 above and such
termination shall be limited as provided in SECTION 1 above.
7
9.13. ENTIRE AGREEMENT. This Guaranty Agreement constitutes the entire
agreement between the Guarantor and Bank with respect to this guaranty, and no
waivers and modifications shall be valid unless they are in writing and duly
executed by the party to be charged thereby, and further expressly approved in
writing by an authorized officer of Bank in the Bank's Loan Servicing Center (or
successor thereto). Notwithstanding the foregoing, in the event any provision of
this Guaranty Agreement should be left blank or incomplete, Guarantor hereby
authorizes and empowers Bank to supply and complete the necessary information to
complete or fill in the blank provision and Bank, or any other holder hereof,
may correct patent errors in this Guaranty Agreement.
9.14. TIME OF ESSENCE; NOTICES. TIME IS OF THE ESSENCE UNDER THIS GUARANTY
AGREEMENT. All notices, certificates and other communications hereunder shall be
deemed given five (5) days after mailing by registered or certified mail,
postage prepaid, return receipt requested, addressed to the addresses set forth
herein. Guarantor and Bank may, by written notice given hereunder, designate a
different address where communications should be sent. Bank may direct, by
notice to Guarantor, that notices, requests and other communications shall be
sent electronically or in some other non-tangible medium.
9.15. GUARANTOR'S ACKNOWLEDGMENT. Guarantor acknowledges that Guarantor has
read this Guaranty and fully understands the rights granted to Bank herein, and
the waiver of rights of Guarantor. Guarantor further acknowledges that each of
the terms contained herein is a material inducement to Bank to extend credit to
the Customer and is necessary in order for the Bank to fully realize the
benefits of Bank's bargained for agreement with the Customer and Guarantor.
Guarantor: (1) represents to Bank the information contained in this Guaranty
Agreement is true, accurate and correct; (2) agrees to promptly notify Bank in
writing of any changes therein and any inaccuracies thereto, such notification
to be addressed to Bank at Bank's address set forth herein; and (3) acknowledges
that Bank is relying upon the information being complete, accurate and correct
and that Bank is under no obligation to make an independent investigation with
respect to the accuracy and correctness thereof and has not made an independent
investigation regarding same.
9.16. AML REPRESENTATIONS, WARRANTIES AND COVENANTS. Guarantor represents
and warrants to Bank as follows, and acknowledges that the following
representations and warranties shall be continuing representations and
warranties from Guarantor to Bank:
(a) Guarantor is and shall remain in compliance with the Trading with the Enemy
Act, as amended, and each of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended)
and any other enabling legislation, regulations or executive orders relating
thereto, and the Uniting and Strengthening America By Providing Appropriate
Tools Required To Intercept and Obstruct Terrorism Act (USA Patriot Act of
2001), as amended, and any other enabling legislation, regulations or executive
orders relating thereto;
(b) Guarantor is and shall remain in compliance with 31 U.S.C., Section 5313, as
amended, 31 C.F.R. Section 103.22, as amended, and any similar laws or
regulations involving currency transaction reports or disclosures relating to
transactions in currency of more than $10,000.00, or of more than any other
minimum amount specified by any laws or regulations; and
(c) Guarantor (i) is not a person whose property or interest in property is
blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of
September 23, 2001 Blocking Property and Prohibiting Transactions With Persons
Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079
(2001)), (ii) does not engage in any dealings or transactions prohibited by
Section 2 of such executive order, or are otherwise associated with any such
person in any manner violative of Section 2, or (iii) is not a person on the
list of Specially Designated Nationals and Blocked Persons or subject to the
limitations or prohibitions under any other U.S. Department of Treasury's Office
of Foreign Assets Control regulation or executive order.
Guarantor covenants and agrees with Bank that no part of any loan proceeds or
advances, and no part of any other amounts or sums derived from any property
which secures repayment of such loan proceeds or advances, including, without
limitation, any accounts, payment intangibles, money, rents, issues or profits,
will be used, directly or indirectly, for any payments to any governmental
official or employee, political party, official of a political party, candidate
for political office, or anyone else acting in an official capacity, in order to
8
obtain, retain or direct business or obtain any improper advantage, in violation
of the United States Foreign Corrupt Practices Act of 1977, as amended.
(SIGNATURES ON FOLLOWING PAGES)
9
The undersigned has executed this Guaranty Agreement as of the day and year
first above stated.
XXXXX CORPORATION,
an Indiana corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Print Name: Xxxx X. Xxxxxxx
Title: President
10
EXHIBIT A
ATTACHED
TO
UNCONDITIONAL GUARANTY AGREEMENT
(Single Loan)
Description of Security Documents (List or describe agreements and documents
that secure this Guaranty Agreement): None
11
