EXHIBIT 10.2
BB&T
GUARANTY AGREEMENT
BRANCH BANKING AND TRUST COMPANY 09/29/2005
TALLAHASSEE, FL
Dear Sirs:
As an inducement to Branch Banking and Trust Company ("Bank") to
extend credit to and to otherwise deal with XXXXX SYSTEMS, INC. ("Borrower"),
and in consideration thereof, the undersigned (and each of the undersigned
jointly and severally if more than one) hereby absolutely and unconditionally
guarantees to Bank and its successors and assigns the due end punctual payment
of any and all notes, drafts, debts, obligations and liabilities, primary or
secondary (whether by way of endorsement or otherwise), of Borrower, at any
time, now or hereafter, incurred with or held by Bank, together with interest,
as and when the same become due and payable, whether by acceleration or
otherwise, in accordance with the terms of any such notes, drafts, debts,
obligations or liabilities or agreements evidencing any such indebtedness,
obligation or liability including all renewals, extensions and modifications
thereof. The obligation of the undersigned is a guarantee of payment and not of
collection.
The undersigned is Bank's debtor for all indebtedness, obligations
and liabilities for which this Guaranty is made, and Bank shall also at all
times have a lien on and security interest in all stocks, bonds and other
securities of the undersigned at any time in Bank's possession and the same
shall at Bank's option be held, administered and disposed of as collateral to
any such indebtedness, obligation or liability of the Borrower, and Bank shall
also at all times have the right of set-off against any deposit account of the
undersigned with Bank in the same manner and to the same extent that the right
of set-off may exist against the Borrower.
It is understood that any such notes, drafts, debts, obligations and
liabilities may be accepted or created by or with Bank at any time and from time
to time without notice to the undersigned, and the undersigned hereby expressly
waives presentment, demand, protest, and notice of dishonor of any such notes,
drafts, debts, obligations and liabilities or other evidences of any such
indebtedness, obligation or liability.
Bank may receive and accept from time to time any securities or
other property as a collateral to any such notes, drafts, debts, obligations and
liabilities, and may surrender, compromise, exchange and release absolutely the
same or any part thereof at any time without notice to the undersigned and
without in any manner affecting the obligation and liability of the undersigned
hereby created. The undersigned agrees that Bank shall have no obligation to
protect, perfect, secure or insure any security interests, liens or encumbrances
now or hereafter held for the indebtedness, obligations and liabilities for
which this Guaranty is made.
This obligation and liability on the part of the undersigned shall
be a primary, and not a secondary, obligation and liability, payable immediately
upon demand without recourse first having been had by Bank against the Borrower
or any other guarantor, person, firm or corporation, and without first resorting
to any property held by Bank as collateral security; and the undersigned hereby
waives the benefits of all provisions of law, for stay or delay of execution or
sale of property or other satisfaction of judgment against the undersigned on
account of obligation and liability hereunder until judgment be obtained
therefor against the Borrower and execution thereon returned unsatisfied, or
until it is shown that the Borrower has no property available for the
satisfaction of the indebtedness, obligation or liability guaranteed hereby, or
until any other proceedings can be had; and the undersigned hereby agrees to
Indemnify the Bank for all costs of collection, including but not limited to the
costs of repossession, foreclosure, reasonable attorneys' fees, and court costs
incurred by the Bank in the event that the Bank should first be required by the
undersigned to resort to any property held by the Bank or in which the Bank has
a security interest or to obtain execution or other satisfaction of a judgment
against the Borrower on account of Borrower's obligation and liability for its
indebtedness guaranteed hereby; and the undersigned further agrees that the
undersigned is responsible for any obligation or debt, or portion thereof, of
the Borrower to the Bank which has been paid by the Borrower to the Bank and
which the Bank is subsequently required to return to the Borrower or a trustee
for the Borrower in any bankruptcy or insolvency proceeding; and the undersigned
further agrees that none of the undersigned shall have any right of subrogation,
reimbursement or Indemnity whatsoever, nor any right of recourse to security for
the debts and obligations of the Borrower to Bank unless and until all of the
debts and obligations of the Borrower to Bank have been paid in full. The
undersigned hereby waives, to the extent avoidable under any provision of the
Bankruptcy Code, any right arising upon payment by the undersigned of any
obligation under this Guaranty to assert a claim against the bankruptcy estate
of the Borrower.
Check applicable box:
[X] This Guaranty is unlimited and applies to all Indebtedness of
Borrower, whether now existing or hereafter arising.
[ ] This Guaranty applies to all indebtedness of Borrower evidenced by
its promissory note number _____ dated __________ (including all
extensions, renewals, and modifications thereof) in the principal
amount of $_______________.
[ ] This Guaranty is limited to an amount of $_______________ plus
accrued interest, late fees, costs of collection (including all
attorneys' fees) and all other obligations and indebtedness which
may accrue or be incurred with respect to the Borrower's
indebtedness and obligations to Bank.
To secure the payment of all obligations of the undersigned
hereunder, the undersigned hereby grants a security interest and lien in the
following goods and property owned by the undersigned:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________ ("Collateral").
The undersigned hereby agrees to execute and deliver to Bank any security
agreement, deed of trust, mortgage, UCC financing statement or other document
required by the Bank in order to protect its security interest or lien in the
Collateral. This document shall constitute a security agreement under the
Uniform Commercial Code of Florida ("Code"), and in addition to having all other
legal rights and remedies, the Bank shall have all rights and remedies of a
secured party under the Code.
This agreement shall inure to the benefit of Bank, its successors
and assigns, and the owners and holders of any of the indebtedness, obligations
and liabilities hereby guaranteed, and shall remain in force until a written
notice revoking it has been received by Bank; but such revocation shall not
release the undersigned from liability to Bank, its successors and assigns, or
the owners and holders of any of the indebtedness, obligations and liabilities
hereby guaranteed, for any indebtedness, obligation or liability of the Borrower
which is hereby guaranteed and then in existence or from any renewals,
extensions or modifications thereof in whole or in part, whether such renewals,
extensions or modifications are made before or after such revocation, with or
without notice to the undersigned. The undersigned waives presentment, demand,
protest and notices of every kind and assents to any one or more extensions,
modifications, renewals or postponements of the time or amount of payment or any
other indulgences given to Borrower. The undersigned shall be responsible for
and shall reimburse the Bank for all costs and expenses (including reasonable
attorneys' fees) incurred by the Bank in connection with the enforcement of this
Guaranty or the protection or preservation of any right or claim of the Bank in
connection herewith, including without limitation costs and expenses incurred by
the Bank in connection with its attempts to collect the indebtedness,
obligations, and liabilities guaranteed hereby.
If the Borrower is a corporation, general partnership, limited
partnership, limited liability company, limited liability partnership, or
limited liability limited partnership, this instrument covers all indebtedness,
obligations and liabilities to Bank purporting to be made or undertaken on
behalf of such entity by any such officer, partner, manager, member or agent of
said entity without regard to the actual authority of such officer or agent. The
term "corporation" shall include associations of all kinds and all purported
corporations, whether correctly and legally chartered and organized.
The undersigned covenants, warrants, and represents to the Bank
that: (i) this guaranty is enforceable against the undersigned in accordance
with its terms; (ii) the execution and delivery of this Guaranty does not
violate or constitute a breach of any agreement to which the undersigned is a
party; (iii) that there is no litigation, claim, action or proceeding pending
or, to the best knowledge of the undersigned, threatened against the undersigned
which would materially adversely affect the financial condition of the
undersigned or his ability to fulfill his obligations hereunder; (iv) that the
undersigned has knowledge of the Borrower's financial condition and affairs; and
(v) unless otherwise required in a Loan Agreement, if applicable, as long as any
Obligations remain outstanding or as long as Bank remains obligated to make
advances, the undersigned shall furnish annually an updated financial statement
in a form satisfactory to Bank, which, when delivered shall be the property of
Bank.
This Guaranty is made in and shall be construed in accordance with
the laws and judicial decisions of the State of Florida. The undersigned agrees
that any dispute arising out of this Guaranty shall be adjudicated in either the
state or federal courts of Florida and in no other forum. For that purpose, the
undersigned hereby submits to the jurisdiction of the state and/or federal
courts of Florida. The undersigned waives any defense that venue is not proper
for any action brought in any federal or state court in the State of Florida.
WAIVER OF TRIAL BY JURY. UNLESS EXPRESSLY PROHIBITED BY APPLICABLE LAW, THE
UNDERSIGNED HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS OR CLAIMS
ARISING OUT OF THIS GUARANTY OR THE BORROWER'S NOTE(S), AND THE RELATED LOAN
DOCUMENTS EXECUTED IN CONNECTION HEREWITH OR OUT OF THE CONDUCT OF THE
RELATIONSHIP BETWEEN THE UNDERSIGNED AND THE BANK OR THE BORROWER AND THE BANK.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK TO ACCEPT THIS GUARANTY AND TO
MAKE THE LOAN(S) TO THE BORROWER. FURTHER, THE UNDERSIGNED HEREBY CERTIFY THAT
NO REPRESENTATIVE OR AGENT OF BANK, NOR BANK'S COUNSEL, HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT BANK WOULD NOT SEEK TO ENFORCE THIS WAIVER OR RIGHT
TO JURY TRIAL PROVISION IN THE EVENT OF LITIGATION. NO REPRESENTATIVE OR AGENT
OF BANK, NOR BANK'S COUNSEL, HAS THE AUTHORITY TO WAIVE, CONDITION OR MODIFY
THIS PROVISION.
Witness the signature and seal of each of the undersigned.
IF GUARANTOR IS A CORPORATION:
WITNESS: XXXXX CORPORATION
/s/ Xxxxxxxx Xxxxx By: /s/ Xxxx X. Xxxxxxx (SEAL)
----------------------------------- ---------------------------------
Title: President
/s/ Xxxxxxxx Xxxx By: /s/ Xxxxxx Xxxx (SEAL)
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Title: Vice President
IF GUARANTOR IS A PARTNERSHIP, LIMITED LIABILITY COMPANY, LIMITED LIABILITY
PARTNERSHIP OR LIMITED LIABILITY LIMITED PARTNERSHIP:
WITNESS: ______________________________________
NAME OF PARTNERSHIP, LLC, LLP, OR LLLP
___________________________________ By:___________________________________
GENERAL PARTNER OR MANAGER (SEAL)
___________________________________ By:___________________________________
GENERAL PARTNER OR MANAGER (SEAL)
___________________________________ By:___________________________________
GENERAL PARTNER OR MANAGER (SEAL)
IF GUARANTOR IS AN INDIVIDUAL:
WITNESS:
__________________________________ ______________________________________
NOTARIZATION OF ACKNOWLEDGEMENT IN AN INDIVIDUAL CAPACITY
STATE OF FLORIDA
COUNTY OF ______________________
The foregoing instrument was acknowledged before me this _____ day
of __________, ______, by ____________________________________________.
(Name of Person Acknowledging)
_______________________________________________
(Signature of Notary Public - State of Florida)
_______________________________________________
(Print, Type, or Stamp Commissioned
Name of Notary Public)
Personally Known _____ OR
Produced Identification _____
Type of Identification Produced ___________
NOTARIZATION OF ACKNOWLEDGEMENT IN REPRESENTATIVE CAPACITY
STATE OF CONN
COUNTY OF FAIRFIELD
The foregoing instrument was acknowledged before me this 30th day of
Sept, 2005, by
XXXX XXXXXXX as PRESIDENT
--------------------------------- ---------------------------------
(Name of Person) (Type of Authority)
for XXXXX CORPORATION
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(Name of Party on Behalf of Whom Instrument Was Executed)
/s/ Xxxxxxx XxXxxxxx
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(Signature of Notary Public - State of Florida)
Xxxxxxx XxXxxxxx
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(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known _____ OR
Produced Identification X
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Type of Identification Produced CT DRIV LIC
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