EXHIBIT 10.23
[COMERICA LOGO]
GUARANTY
As of June 6, 2003, the undersigned, for value received, unconditionally and
absolutely guarantee to Comerica Bank ("Bank"), a Michigan banking corporation,
payment when due, whether by stated maturity, demand, acceleration or otherwise,
of all existing and future indebtedness ("Indebtedness") to the Bank of
Renaissance Alliance Insurance Services, LLC, a Massachusetts limited liability
company ("Borrower"). Indebtedness includes without limit any and all
obligations or liabilities of the Borrower to the Bank, whether absolute or
contingent, direct or indirect, voluntary or involuntary, liquidated or
unliquidated, joint or several, known or unknown; any and all indebtedness,
obligations or liabilities for which Borrower would otherwise be liable to the
Bank were it not for the invalidity, irregularity or unenforceability of them by
reason of any bankruptcy, insolvency or other law or order of any kind, or for
any other reason; any and all amendments, modifications, renewals and/or
extensions of any of the above; and all costs of collecting Indebtedness,
including, without limit, attorney fees. Any reference in this Guaranty to
attorney fees shall be deemed a reference to reasonable fees, charges, costs and
expenses of both in-house and outside counsel and paralegals, whether or not a
suit or action is instituted, and to court costs if a suit or action is
instituted, and whether attorney fees or court costs are incurred at the trial
court level, on appeal, in a bankruptcy, administrative or probate proceeding or
otherwise. All costs shall be payable immediately by the undersigned when
incurred by the Bank, without demand, and until paid shall bear interest at the
highest per annum rate applicable to any of the Indebtedness, but not in excess
of the maximum rate permitted by law.
1. LIMITATION: The total obligation of the undersigned under this Guaranty is
UNLIMITED unless specifically limited in the Additional Provisions of this
Guaranty, and this obligation (whether unlimited or limited to the extent
specified in the Additional Provisions) shall include, IN ADDITION TO any
limited amount of principal guaranteed, all interest on that limited
amount, and all costs incurred by the Bank in collection efforts against
the Borrower and/or the undersigned or otherwise incurred by the Bank in
any way relating to the Indebtedness, or this Guaranty, including without
limit attorney fees. The undersigned agree(s) that (a) this limitation
shall not be a limitation on the amount of Borrower's Indebtedness to the
Bank; (b) any payments by the undersigned shall not reduce the maximum
liability of the undersigned under this Guaranty unless written notice to
that effect is actually received by the Bank at, or prior to, the time of
the payment; and (c) the liability of the undersigned to the Bank shall at
all times be deemed to be the aggregate liability of the undersigned under
this Guaranty and any other guaranties previously or subsequently given to
the Bank by the undersigned and not expressly revoked, modified or
invalidated in writing.
2. NATURE OF GUARANTY: This is a continuing Guaranty of payment and not of
collection and remains effective whether the Indebtedness is from time to
time reduced and later increased or entirely extinguished and later
reincurred. The undersigned deliver this Guaranty based solely on the
undersigned's independent investigation of (or decision not to investigate)
the financial condition of Borrower and are not relying on any information
furnished by the Bank. The undersigned assume full responsibility for
obtaining any further information concerning the Borrower's financial
condition, the status of the Indebtedness or any other matter which the
undersigned may deem necessary or appropriate now or later. The undersigned
knowingly accept the full range of risk encompassed in this Guaranty, which
risk includes, without limit, the possibility that Borrower may incur
Indebtedness to the Bank after the financial condition of the Borrower, or
the Borrower's ability to pay debts as they mature, has deteriorated.
3. APPLICATION OF PAYMENTS: The undersigned authorize the Bank, either before
or after termination of this Guaranty, without notice to or demand on the
undersigned and without affecting the undersigned's liability under this
Guaranty, from time to time to: (a) apply any security and direct the order
or manner of sale; and (b) apply payments received by the Bank from the
Borrower to any indebtedness of the Borrower to the Bank, in such order as
the Bank shall determine in its sole discretion, whether or not this
indebtedness is covered by this Guaranty, and the undersigned waive any
provision of law regarding application of
payments which specifies otherwise. The undersigned agree to provide to the
Bank copies of the undersigned's financial statements upon request.
4. SECURITY: The undersigned grant to the Bank a security interest in and the
right of setoff (which shall only be exercisable upon the occurrence and
during the continuance of an Event of Default on the Indebtedness) as to
any and all property of the undersigned now or later in the possession of
the Bank. The undersigned further assign to the Bank as collateral for the
obligations of the undersigned under this Guaranty all claims of any nature
that the undersigned now or later have against the Borrower (other than any
claim under a deed of trust or mortgage covering California real property)
with full right on the part of the Bank, in its own name or in the name of
the undersigned, to collect and enforce these claims. The undersigned agree
that no security now or later held by the Bank for the payment of any
Indebtedness, whether from the Borrower, any guarantor, or otherwise, and
whether in the nature of a security interest, pledge, lien, assignment,
setoff, suretyship, guaranty, indemnity, insurance or otherwise, shall
affect in any manner the unconditional obligation of the undersigned under
this Guaranty, and the Bank, in its sole discretion, without notice to the
undersigned, may release, exchange, enforce and otherwise deal with any
security without affecting in any manner the unconditional obligation of
the undersigned under this Guaranty. The undersigned acknowledge and agree
that the Bank has no obligation to acquire or perfect any lien on or
security interest in any asset(s), whether realty or personalty, to secure
payment of the Indebtedness, and the undersigned are not relying upon any
asset(s) in which the Bank has or may have a lien or security interest for
payment of the Indebtedness.
5. OTHER GUARANTORS: If any Indebtedness is guaranteed by two or more
guarantors, the obligation of the undersigned shall be several and also
joint, each with all and also each with any one or more of the others, and
may be enforced at the option of the Bank against each severally, any two
or more jointly, or some severally and some jointly. The Bank, in its sole
discretion, may release any one or more of the guarantors for any
consideration which it deems adequate, and may fail or elect not to prove a
claim against the estate of any bankrupt, insolvent, incompetent or
deceased guarantor; and after that, without notice to any guarantor, the
Bank may extend or renew any or all Indebtedness and may permit the
Borrower to incur additional Indebtedness, without affecting in any manner
the unconditional obligation of the remaining guarantors. The undersigned
acknowledge that the effectiveness of this Guaranty is not conditioned on
any or all of the indebtedness being guaranteed by anyone else.
6. TERMINATION: Any of the undersigned may terminate their obligation under
this Guaranty as to future Indebtedness (except as provided below) by (and
only by) delivering written notice of termination to an officer of the Bank
and receiving from an officer of the Bank written acknowledgment of
delivery; provided, however, the termination shall not be effective until
the opening of business on the fifth (5th) day ("effective date") following
written acknowledgment of delivery. Any termination shall not affect in any
way the unconditional obligations of the remaining guarantors, whether or
not the termination is known to the remaining guarantors. Any termination
shall not affect in any way the unconditional obligations of the
terminating guarantors as to any Indebtedness existing at the effective
date of termination or any Indebtedness created after that pursuant to any
commitment or agreement of the Bank or pursuant to any Borrower loan with
the Bank existing at the effective date of termination (whether advances or
readvances by the Bank after the effective date of termination are optional
or obligatory), or any modifications, extensions or renewals of any of this
Indebtedness, whether in whole or in part, and as to all of this
Indebtedness and modifications, extensions or renewals of it, this Guaranty
shall continue effective until the same shall have been fully paid. The
Bank has no duty to give notice of termination by any guarantors to any
remaining guarantors. The undersigned shall indemnify the Bank against all
claims, damages, costs and expenses, including, without limit, reasonable
attorney fees, incurred by the Bank in connection with any suit, claim or
action against the Bank arising out of any modification or termination of a
Borrower loan or any refusal by the Bank to extend additional credit in
connection with the termination of this Guaranty.
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7. REINSTATEMENT: Notwithstanding any prior revocation, termination, surrender
or discharge of this Guaranty (or of any lien, pledge or security interest
securing this Guaranty) in whole or in part, the effectiveness of this
Guaranty, and of all liens, pledges and security interests securing this
Guaranty, shall automatically continue or be reinstated in the event that
any payment received or credit given by the Bank in respect of the
Indebtedness is returned, disgorged or rescinded under any applicable state
or federal law, including, without limitation, laws pertaining to
bankruptcy or insolvency, in which case this Guaranty, and all liens,
pledges and security interests securing this Guaranty, shall be enforceable
against the undersigned as if the returned, disgorged or rescinded payment
or credit had not been received or given by the Bank, and whether or not
the Bank relied upon this payment or credit or changed its position as a
consequence of it. In the event of continuation or reinstatement of this
Guaranty and the liens, pledges and security interests securing it, the
undersigned agree upon demand by the Bank, to execute and deliver to the
Bank those documents which the Bank determines are appropriate to further
evidence (in the public records or otherwise) this continuation or
reinstatement, although the failure of the undersigned to do so shall not
affect in any way the reinstatement or continuation. If the undersigned do
not execute and deliver to the Bank upon demand such documents, the Bank
and each Bank officer is irrevocably appointed (which appointment is
coupled with an interest) the true and lawful attorney of the undersigned
(with full power of substitution) to execute and deliver such documents in
the name and on behalf of the undersigned.
8. WAIVERS: The undersigned , to the extent not expressly prohibited by
applicable law, waive any right to require the Bank to: (a) proceed against
any person or property; (b) give notice of the terms, time and place of any
public or private sale of personal property security held from the Borrower
or any other person, or otherwise comply with the provisions of Sections
9-611 or 9-621 of the Michigan or other applicable Uniform Commercial Code,
as the same may be amended, revised or replaced from time to time; or (c)
pursue any other remedy in the Bank's power. The undersigned waive notice
of acceptance of this Guaranty and presentment, demand, protest, notice of
protest, dishonor, notice of dishonor, notice of default, notice of intent
to accelerate or demand payment of any Indebtedness, any and all other
notices to which the undersigned might otherwise be entitled, and diligence
in collecting any Indebtedness, and agree that the Bank may, once or any
number of times, modify the terms of any Indebtedness, compromise, extend,
increase, accelerate, renew or forbear to enforce payment of any or all
Indebtedness, or permit the Borrower to incur additional Indebtedness, all
without notice to the undersigned and without affecting in any manner the
unconditional obligation of the undersigned under this Guaranty.
The undersigned unconditionally and irrevocably waive each and every
defense and setoff of any nature which, under principles of guaranty or
otherwise, would operate to impair or diminish in any way the obligation of
the undersigned under this Guaranty, and acknowledge that each such waiver
is by this reference incorporated into each security agreement, collateral
assignment, pledge and/or other document from the undersigned now or later
securing this Guaranty and/or the Indebtedness, and acknowledge that as of
the date of this Guaranty no such defense or setoff exists.
9. WAIVER OF SUBROGATION: The undersigned waive any and all rights (whether by
subrogation, indemnity, reimbursement, or otherwise) to recover from the
Borrower any amounts paid by the undersigned pursuant to this Guaranty.
10. SALE/ASSIGNMENT: The undersigned acknowledge that the Bank has the right to
sell, assign, transfer, negotiate, or grant participations in all or any
part of the Indebtedness and any related obligations, including, without
limit, this Guaranty, without notice to the undersigned and that the Bank
may disclose any documents and information which the Bank now has or later
acquires relating to the undersigned or to the Borrower in connection with
such sale, assignment, transfer, negotiation, or grant. The undersigned
agree that the Bank may provide information relating to this Guaranty or
relating to the undersigned to the Bank's parent, affiliates, subsidiaries
and service providers.
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11. GENERAL: This Guaranty constitutes the entire agreement of the undersigned
and the Bank with respect to the subject matter of this Guaranty. No
waiver, consent, modification or change of the terms of the Guaranty shall
bind any of the undersigned or the Bank unless in writing and signed by the
waiving party or an authorized officer of the waiving party, and then this
waiver, consent, modification or change shall be effective only in the
specific instance and for the specific purpose given. This Guaranty shall
inure to the benefit of the Bank and its successors and assigns and shall
be binding on the undersigned and the undersigned's heirs, legal
representatives, successors and assigns including, without limit, any
debtor in possession or trustee in bankruptcy for any of the undersigned.
The undersigned have knowingly and voluntarily entered into this Guaranty
in good faith for the purpose of inducing the Bank to extend credit or make
other financial accommodations to the Borrower. If any provision of this
Guaranty is unenforceable in whole or in part for any reason, the remaining
provisions shall continue to be effective. THIS GUARANTY SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
MICHIGAN, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
12. HEADINGS: Headings in this Agreement are included for the convenience of
reference only and shall not constitute a part of this Agreement for any
purpose.
13. ADDITIONAL PROVISIONS: None.
14. JURY TRIAL WAIVER: THE UNDERSIGNED AND BANK ACKNOWLEDGE THAT THE RIGHT TO
TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH
PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH
COUNSEL OF THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL
BENEFIT WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION
REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS
GUARANTY OR THE INDEBTEDNESS.
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IN WITNESS WHEREOF, Guarantors have signed and delivered this Guaranty the day
and year first written above.
________________________________________
J. XXXXX XXXXXXXX
MEADOWBROOK INSURANCE GROUP, INC.
By:_____________________________________
Its:____________________________________
RENAISSANCE INSURANCE AGENCY, INC.
By:_____________________________________
Its:____________________________________
COCHRANE & XXXXXX INSURANCE AGENCY, INC.
By:_____________________________________
Its:____________________________________
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