EXHIBIT 10.12
GUARANTY
(SPECIFIC DEBT)
This Guaranty is executed at COLUMBUS, OH, as of February 22, 2002.
1. To Induce NATIONAL CITY BANK, A NATIONAL BANKING ASSOCIATION ("Bank"),
having a banking office at 000 XXXX XXXXX XXXXXX, XXXXXXXX, XX 00000, to
extend or continue to extend credit to SAFE AUTO GROUP, INC. ("Borrower"),
in the original principal amount of FIVE MILLION AND 00/100 Dollars
($5,000,000.00) as evidenced by a certain COMMERCIAL NOTE: TERM MULTIPLE
ADVANCE/ONE MONTH LIBOR DAILY INDEXED (the "Guaranteed Debt"), the
undersigned, XXX XXXXXXX AND XXX XXXXX (collectively "Guarantor"),
intending to be legally bound, hereby unconditionally guarantees to Bank
the prompt payment of the Guaranteed Debt when due, including but not
limited to, payment of all principal, interest and other sums due, whether
by acceleration or otherwise, together with all late charges,
disbursements, expenses, and deficiencies together with the performance of
Borrower's obligations under any documents or instruments executed in
connection with or given to secure the Guaranteed Debt. Guarantor also
agrees to pay all expenses, legal and otherwise (including court costs and
reasonable attorney's fees), paid or incurred by Bank in endeavoring to
collect such Guaranteed Debt, or any part thereof, and in enforcing this
Guaranty.
Anything herein to the contrary notwithstanding, the total liability of
Guarantor to Bank under this Guaranty shall not exceed the principal sum
of TWO MILLION FIVE HUNDRED THOUSAND AND 00/100 Dollars ($2,500,000.00)
plus all interest thereon and late charges applicable thereto plus all
expenses, legal and otherwise (including court costs and reasonable
attorney's fees), paid or incurred by Bank in endeavoring to collect such
Guaranteed Debt, or any part thereof, and in enforcing this Guaranty.
2. This is a continuing Guaranty and shall remain in full force and effect
until revoked by Guarantor in writing and a signed copy thereof is duly
served upon Bank; provided, however, that any such revocation shall not
affect any outstanding obligation or liability hereunder created or
incurred prior to Bank's receipt of such notice of revocation or which is
subsequently created or incurred pursuant to a binding commitment to lend
in effect prior to Bank's receipt of such notice of revocation, or any
unpaid portion thereof which may be renewed or extended. This Guaranty
shall be construed as an absolute and unconditional guaranty of payment
and not a guaranty of collection and Guarantor's liability shall be
direct, immediate and not conditional or contingent upon the pursuit by
Bank of any remedies it may have or the requirement to resort first to the
Borrower, any other guarantor of the Guaranteed Debt, any collateral or
security or any other remedy whatsoever. Guarantor shall have no right of
contribution, subrogation, reimbursement or indemnity whatsoever against
or from the Borrower or any other guarantor of the Guaranteed Debt, nor
any right to recourse to security for the Guaranteed Debt from the
Borrower or any other entity or person who has granted security for the
Guaranteed Debt unless and until all of the Guaranteed Debt has been paid
in full. The obligations of Guarantor hereunder shall not be released,
discharged or in any way affected nor shall Guarantor have any rights
against Bank by reason of: (a) the fact that any collateral or security,
securing the Guaranteed Debt or the obligations of Guarantor hereunder,
may be subject to equitable claims or defenses in favor of others or may
be invalid or defective in any way; (b) the failure to convey, perfect or
create a valid lien in any such collateral or security; (c) the invalidity
or unenforceability for any reason of any part of the Guaranteed Debt; (d)
the change, loss, or deterioration in value of any collateral or of the
financial condition of the Borrower, whether due to incorrect estimates of
such value or financial condition, failure to protect or insure, or
because of any other reason; (e) the exchange, sale, release or surrender
of any such collateral or security; (f) any defense based upon suretyship
or impairment of collateral; or (g) any other defense in law or equity to
which Guarantor or Borrower may be entitled. Bank may pursue all or any of
its remedies at one or at different times. Bank's books and records
showing the account between Bank and the Borrower shall be admissible in
any action or proceeding, shall be binding upon Guarantor for the purpose
of establishing the items therein set forth, and shall constitute prima
facie proof thereof.
3. Guarantor hereby waives any notice of acceptance of this Guaranty, or any
notice of the incurring by the Borrower at any time of any obligation or
liability covered hereunder. Guarantor also waives any and all
presentment, demand of payment, protest or notice of protest, notice of
dishonor, notice of nonpayment or other default with respect to any
obligation or liability covered hereunder, and all defenses in law or
equity. Any and all present and future debts and obligations of the
Borrower to Guarantor are hereby postponed in favor of and subordinated to
the full payment and performance of all present and future obligations and
liabilities of the Borrower to Bank. Guarantor hereby grants to Bank full
power, in its absolute discretion
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and without notice to Guarantor, to: (a) modify, accelerate, or otherwise
change the terms of the Guaranteed Debt in accordance with its provisions;
(b) renew or extend the Guaranteed Debt at one or more times; (c) release,
compromise, or settle the Guaranteed Debt in settlement, liquidation,
adjustment, bankruptcy proceedings or otherwise as Bank deems advisable;
(d) delay or forbear to act in respect to the Guaranteed Debt or any
collateral, or the enforcement thereof whether such delay or forbearance
is deliberate or by omission; (e) consent to the substitution, exchange or
release of any collateral or security for the Guaranteed Debt or forbear
from calling for additional security; or (f) take an additional guaranty
or guaranties, or settle, compromise or release one or more other
guaranties. All sums at any time to the credit of Guarantor and any
property of Guarantor at any time in Bank's possession may be held by Bank
as security for all obligations of Guarantor to Bank arising out of this
Guaranty.
4. If any payment received by Bank from the Borrower in respect of the
Guaranteed Debt is subsequently recovered from or repaid by Bank as the
result of any bankruptcy, dissolution, reorganization, arrangement or
liquidation proceedings (or proceedings similar thereto), Guarantor's
payment obligation hereunder shall continue to be effective as though such
payment had not been made. The provisions of this paragraph shall survive
the termination of this Guaranty.
5. Guarantor hereby represents and warrants to Bank that the execution and
delivery of this Guaranty and the performance of all of Guarantor's
obligations hereunder does not violate any law or regulation to which
Guarantor is subject; that Guarantor's execution of this Guaranty is duly
authorized; and that this Guaranty constitutes a valid, binding and
legally enforceable obligation of Guarantor subject only to laws relating
to bankruptcy and creditor's rights generally. Guarantor further agrees to
execute and deliver any and all other documents and take any and all other
steps or actions reasonably deemed necessary by Bank to effectuate this
Guaranty.
6. Guarantor has established adequate means of obtaining, on a continuing
basis, all facts pertaining to the risks hereunder. Guarantor assumes the
responsibility for being and keeping informed of all facts pertaining to
the risks hereunder, and Guarantor agrees that Bank shall have no duty to
disclose to Guarantor any such facts. Guarantor recognizes that Guarantor
is subject to risks under this Guaranty and that those risks may increase
in the future due to changing circumstances. To induce Bank to make the
credit extensions to Borrower described in this Guaranty, Guarantor hereby
assumes all present and future risks hereunder.
7. Guarantor will furnish to Bank, without expense to Bank and forthwith upon
each request of Bank made upon Guarantor therefor, such information in
writing regarding Guarantor's financial condition, income taxes,
properties, business operations, if any, and pension plans, if any,
prepared, in the case of financial information, in accordance with
generally accepted accounting principles consistently applied and
otherwise in form and detail satisfactory to Bank. Guarantor hereby
authorizes Bank to share all credit and financial information relating to
Guarantor with Bank's parent company, with any subsidiary or affiliate
company of Bank or of Bank's parent company or with such other persons or
entities as Bank shall deem advisable for the conduct of its business.
8. The obligations and liabilities hereunder shall be binding upon the heirs,
executors, administrators, successors, and assigns of the parties hereto.
If there is more than one guarantor of the Guaranteed Debt, the
obligations of each guarantor shall be joint and several with any other
guarantor. This Agreement shall be governed by the law (excluding conflict
of laws rules) of the jurisdiction in which Bank's banking office is
located.
9. This Guaranty contains the entire guaranty agreement between Guarantor and
Bank with respect to all indebtedness arising hereunder and may be in
addition to other contracts of guaranty executed by the undersigned in
favor of Bank. The provisions of this Guaranty may be modified, altered or
amended only by written agreement signed by Guarantor and Bank.
10. Any action, claim, counterclaim, crossclaim, proceeding, or suit arising
under or in connection with this Guaranty (each such action, claim,
counterclaim, crossclaim, proceeding, or suit, an "Action") may be brought
in any federal or state court located in the city in which Bank's banking
office is located. Guarantor hereby unconditionally submits to the
jurisdiction of any such court with respect to each such Action and hereby
waives any objection Guarantor may now or hereafter have to the venue of
any such Action brought in any such court. GUARANTOR HEREBY, AND EACH
HOLDER OF THE GUARANTEED DEBT OR ANY PART THEREOF, KNOWINGLY AND
VOLUNTARILY WAIVES JURY
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TRIAL IN RESPECT OF ANY ACTION, CLAIM, COUNTERCLAIM, CROSSCLAIM,
PROCEEDING, OR SUIT AT ANY TIME ARISING UNDER OR IN CONNECTION WITH THIS
GUARANTY.
11. Guarantor hereby authorizes any attorney-at-law on Guarantor's behalf or
on behalf of Guarantor's successors or survivors: to appear in an action
on this Guaranty at any time after the Guaranty becomes due in any court
of record in Ohio or elsewhere; to waive the issuing and service of
process and to confess judgment in favor of the holder hereof for the
amount due plus interest and costs; and to release and waive all errors
and appeals in the actions and judgments. No judgment against Guarantor
shall be a bar to a subsequent judgment or judgments pursuant to this
warrant of attorney against Guarantor.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
GUARANTOR:
/s/ Xxxx X. Xxxxxx /s/ Xxx Xxxxxxx
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Witness (as to all) Xxx Xxxxxxx, Social Security #:
Print: Xxxx X. Xxxxxx
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/s/ Xxxxx X. Xxxxxxx /s/ Xxx Xxxxx
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Witness (as to all) Xxx Xxxxx, Social Security #:
Print: Xxxxx X. Xxxxxxx
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