EXHIBIT 10.32
GUARANTY BY CORPORATION
WAYCROSS , GEORGIA
(County) (State)
December 30, 1993
For the good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and to induce THE XXXXXXXXX BANK
(herein, with its participants, successors and assigns, called "Bank"),
at its option, at any time or from time to time to make loans or extend
other accommodations to or for the account of WAYCROSS AND WARE COUNTY
DEVELOPMENT AUTHORITY (herein called "Borrower") or to engage in any other
transactions with Borrower, the undersigned hereby absolutely and
unconditionally guarantees to the Bank 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 Bank
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 Bank (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").
B. If this [ ] is checked, the undersigned guarantees to Bank
the payment and performance of the debt, liability or obligation
of Borrower to Bank evidenced by or arising out of the following:
ADJUSTABLE RATE INSTALLMENT PROMISSORY NOTE DATED 12/30/93 IN THE
PRINCIPAL SUM OF $613,727.63 and any extensions, renewals or
replacements thereof (hereinafter referred to as the
"Indebtedness").
The undersigned further acknowledges and agrees with Bank 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. If paragraph A is checked, 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 prospectively
as to future transactions, by written notice actually received by the Bank,
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 Bank, or
as to any renewals, extensions and refinancings thereof. The undersigned
represents and warrants to the Bank 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, in accordance with this paragraph, 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 paragraph, the Bank may rely
conclusively on a continuing warranty, hereby made, that the undersigned
continues to be benefited by this guaranty and the Bank 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 Bank 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) then the Bank shall have the right to declare
immediately due and payable, and the undersigned will forthwith pay to the
Bank, 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 a
principal amount of $________________ (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 Bank may apply any sums
received by or available to the Bank 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 Bank, advising the Bank that
such payment is made under this guaranty for such purpose.
5. The undersigned will not exercise or enforce any right of
contribution, reimbursement, recourse or subrogation available to the
undersigned against any person liable for payment of the Indebtedness, or
as to any collateral security therefor, unless and until all of the
Indebtedness shall have been fully paid and discharged.
6. The undersigned will pay or reimburse the Bank for all costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred
by the Bank 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 THE REVERSE SIDE
HEREOF, ALL OF WHICH ARE MADE A PART HEREOF.
This guaranty is [ ] 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
GENERAL MANUFACTURED HOUSING, INC.
/S/ XXXXXX X. XXXXXX PRESIDENT
PRESIDENT (TITLE)
/S/ [ILLEGIBLE] SECRETARY (TITLE)
XXX X. XXXXX The Xxxxxxxxx Bank WAYCROSS AND WARE COUNTY DEVELOPMENT
000 X. XXXXXXXX XXXX. P.O. Box 218 AUTHORITY
FERNANDINA BEACH, FL 00000 Xxxxxxxx, Xxxxxxx 00000 P.O. BOX 137
WAYCROSS, GA 31502
GUARANTOR'S NAME AND ADDRESS XXXXXX'S NAME AND ADDRESS
"I" includes each guarantor above, "You" means the Lender,
jointly and severally. its successors XXXXXXXX'S NAME AND ADDRESS
and assigns. "Borrower" means each person above.
GUARANTY
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and to induce you, at your option,
to make loans or engage in any other transactions with borrower
from time to time, I absolutely and unconditionally guarantee the
full payment of the following debts (as defined herein) when due
(whether at maturity or upon acceleration):
PRESENT DEBT GUARANTY
[X] I absolutely and unconditionally guarantee to you the
payment and performance of the following described debt (including
all renewals, extensions, refinancings and modifications) of the
borrower: LOAN DATED 12/30/93 TO WAYCROSS AND WARE COUNTY
DEVELOPMENT AUTHORITY IN THE PRINCIPAL AMOUNT OF $613,727.63
PRESENT AND FUTURE DEBT GUARANTY
[ ] I absolutely and unconditionally guarantee to you the
payment and performance of each and every debt, of every type and
description, that the borrower may now or at any time in the future
owe you including, but not limited to, the following described
debt(s):
[ ] I absolutely and unconditionally guarantee to you the
payment and performance of each and every debt, of every type and
description, that the borrower may now or at any time in the future
owe you, up to the principal amount of $ plus
accrued interest, attorneys' fees and collection costs referable
thereto (when permitted by law), and all other amounts agreed to be
paid under all agreements evidencing the debt and securing the
payment of the debt. You may, without notice, apply this guaranty
to such debts of the borrower as you may select from time to time.
DEFINITIONS - As used in this agreement, the terms "I," "we," and
"my" mean all persons signing this guaranty agreement, individually
and jointly, and their heirs, executors, administrators and
assigns.
The term "debt" means all debts, liabilities, and obligations of
the borrower (including, but not limited to, all amounts agreed to
be paid under the terms of any notes or agreements securing the
payment of any debt, liability or obligation, overdrafts, letters
of credit, guaranties, advances for taxes, insurance, repairs and
storage, and all extensions, renewals, refinancings and
modifications of these debts) whether now existing or created or
incurred in the future, due or to become due, or absolute or
contingent, except for any obligations incurred by borrower after
the date of this guaranty for which the borrower meets your
standard of creditworthiness based on the borrower's own assets and
income without the addition of a guaranty, or to which, although
you require the addition of a guaranty, the borrower chooses
someone other than me to guaranty the obligation.
APPLICABLE LAW - This agreement is governed by the law of the state
in which you are located. Any term of this agreement that does not
comply with applicable law will not be effective if that law does
not expressly or impliedly permit variations by agreement. If any
part of this agreement cannot be enforced according to its terms,
this fact will not affect the balance of this agreement.
REVOCATION - I agree that this is an absolute and continuing
guaranty. If this guaranty is limited to the payment of a specific
debt of the borrower described above, this agreement cannot be
revoked and will remain in effect until the debt is paid in full.
If this guaranty covers both the borrower's present and future
debts, I agree that this guaranty will remain binding on me,
whether or not there are any debts outstanding, until you have
actually received written notice of my revocation or written notice
of my death or incompetence.
Notice of revocation or notice of my death or incompetence will not
affect my obligations under this guaranty with respect to any debts
incurred by or for which you have made a commitment to borrower
before you actually receive such notice, and all renewals,
extensions, refinancings, and modifications of such debts. I agree
that if any other person signing this agreement provides a notice
of revocation to you, I will still be obligated under this
agreement until I provide a notice of revocation to you. If any
other person signing this agreement dies or is declared
incompetent, such fact will not affect my obligations under this
agreement.
OBLIGATIONS INDEPENDENT - I agree that I am obligated to pay
according to the terms of this guaranty even if any other person
has agreed to pay the borrower's debt. My obligation to pay
according to the terms of this guaranty shall not be affected by
the illegality, invalidity or unenforceability of any notes or
agreements evidencing the debt, the violation of any applicable
usury laws, forgery, or any other circumstances which make the
indebtedness unenforceable against the borrower.
I will remain obligated to pay on this guaranty even if any other
person who is obligated to pay the borrower's debt, including the
borrower, has such obligation discharged in bankruptcy,
foreclosure, or otherwise discharged by law. In such situations,
my obligation shall include post-bankruptcy petition interest and
attorneys' fees and any other amounts which borrower is discharged
from paying or which do not otherwise accrue to borrower's
indebtedness due to borrower's discharge. I will also be obligated
to pay you, to the fullest extent permitted by law, any deficiency
remaining after foreclosure of any mortgage or security interest
securing borrower's debt, whether or not the liability of borrower
or any other obligor for such deficiency is discharged by statute
or judicial decision. If any payments by borrower to you are
thereafter set aside, recovered, rescinded, in whole or in part,
are settled by you at your discretion, or are in any way recouped
or recovered from you for any reason (including, without
limitation, the bankruptcy, insolvency, or reorganization of
borrower or any other obligor), then I am obligated to reimburse or
indemnify you for the full amount you so pay together with costs,
interest, attorneys' fees and all other expenses which you incur in
connection therewith. I also agree that if my liability is limited
to a stated principal amount (plus other agreed charges), you may
allow the borrower to incur debt in excess of the specified amount
and apply to the payment of such excess any amounts you receive for
payment of the debt from the borrower or any other person, any
amounts resulting from any collateral, or amounts received from any
other source, without affecting my obligations under this
agreement.
No modification of this agreement is effective unless in writing
and signed by you and me, except that you may, without notice to me
and without the addition of a signed writing or my approval:
(1) release any borrower or other person who may be liable for
borrower's debt, (2) release or substitute any collateral, (3) fail
to perfect any security interest or otherwise impair any
collateral, (4) waive or impair any right you may have against any
borrower or other person who may be liable for borrower's debt,
(5) settle or compromise any claim against the borrower or any
person who may be liable for the borrower's debt, (6) procure any
additional security or persons who agree to be liable for
borrower's debt, (7) delay or fail to pursue enforcement of the
debt, (8) apply amounts you receive from the borrower or other
persons to payment of the debt in any order you select, (9) make
any election with respect to the debt provided by law or any
agreement with any person liable for the debt, (10) exercise or
fail to exercise any rights you have with respect to the debt, (11)
extend new credit to the borrower, or (12) renew, extend, refinance
or modify the borrower's debt on any terms agreed to by you and the
borrower (including, but not limited to, changes in the interest
rate or in the method, time, place or amount of payment) without
affecting my obligation to pay under this guaranty.
WAIVER - I waive presentment, demand, protest, notice of dishonor,
and notice of acceptance of this guaranty. I also waive, to the
extent permitted by law, all notices, all defenses and claims that
the borrower could assert, any right to require you to pursue any
remedy or seek payment from any other person before seeking payment
under this agreement, and all other defenses to the debt, except
payment in full. You may without notice to me and without my
consent, enter into agreements with the borrower from time to time
for purposes of creating or continuing the borrower's debt as
allowed by this guaranty. I agree that I will be liable, to the
fullest extent permitted by applicable law, for any deficiency
remaining after foreclosure (or repossession) and sale of any
collateral without regard to whether borrower's obligation to pay
such deficiency is discharged by law. If any payments on the debt
are set aside, recovered or required to be returned in the event of
the insolvency, bankruptcy or reorganization of the borrower, my
obligations under this agreement will continue as if such payments
had never been made.
I also waive and relinquish all present and future claims, rights,
and remedies against borrower or any other obligated party arising
out of the creation or my performance of this guaranty. My waiver
includes, but is not limited to, the right of contribution,
reimbursement, indemnification, subrogation, exoneration, and any
right to participate in any claim or remedy you may have against
the borrower, collateral, or other party obligated for borrower's
debts, whether or not such claim, remedy, or right arises in
equity, or under contract, statute or common law.
REMEDIES - If I fail to keep any promise contained in this
agreement or any agreement securing this agreement, you may, make
this agreement and the borrower's debt immediately due and payable,
you may set-off this obligation against any right I have to receive
money from you (however, you may not set-off against any accounts
in which my rights are only as a fiduciary or my IRA or other
tax-deferred retirement account), you may use any remedy you have
under state or federal law, and you may use any remedy given to you
by any agreement securing this agreement. If I die, am declared
incompetent, or become insolvent (either because my liabilities
exceed my assets or because I am unable to pay my debts as they
become due), you may make the debt immediately due and payable.
COLLECTION COSTS - Except when prohibited by law, I agree to pay
the reasonable costs and expenses you incur to enforce and collect
this agreement, including attorneys' fees and court costs.
SECURITY - This guaranty is unsecured secured
by
.
NOTICE TO COSIGNER
You are being asked to guarantee the debts described
above. If you are making a "Present and Future Debt
Guaranty" as identified above, you are being asked to
guarantee PRESENT as well as FUTURE debts of the
borrower entered into with this lender. Think carefully
before you do. If the borrower doesn't pay these debts,
you will have to. Be sure you can afford to pay if you
have to, and that you want to accept this
responsibility.
You may have to pay up to the full amount of these debts
if the borrower does not pay. You may also have to pay
late fees or collection costs, which increase this
amount.
The lender can collect these debts from you without
first trying to collect from the borrower. The lender
can use the same collection methods against you that can
be used against the borrower, such as suing you,
garnishing you wages, etc. If these debts are ever in
default, that fact may become part of your credit
record.
In witness whereof, I have signed my name and affixed
my seal on this 30 day of DECEMBER, 1993, and, by
doing so, agree to the terms of this guaranty and
acknowledge having read the Notice to Consigner.
/s/ Xxx X. Xxxxx (seal)
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XXX X. XXXXX
(seal)
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