Exhibit 10.5
BB&T
GUARANTY AGREEMENT
BRANCH BANKING AND TRUST COMPANY October 5, 2004
Dear Sirs:
As an inducement to Branch Banking and Trust Company ("Bank") to extend credit
to and to otherwise deal with Community Resource Mortgage, 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 and 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 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 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
from 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 any claim or right to be a creditor of the Borrower's
bankruptcy estate which may arise upon payment by the undersigned of any
obligation under this Guaranty.
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Initials:__________
Check applicable box:
|_| This Guaranty is unlimited and applies to all indebtedness of Borrower,
whether now existing or hereinafter arising.
|X| This Guaranty applies to all indebtedness of Borrower evidenced by its
promissory note dated October 5, 2004 (including all extensions, renewals, and
modifications thereof) in the principal amount of $20,000,000.00.
|_| This Guaranty is limited to an amount of $ plus accrued interest, late fees,
costs of collection (including 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 following undersigned: N/A
-------
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-----------------------------------------------------------------("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 South Carolina ("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 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. Cost and expenses shall include reasonable attorneys' fees
which the undersigned agrees shall be equal to 15% of the principal and interest
outstanding at the time of action by Lender described above, unless the actual
attorney' fees incurred, based upon Bank's counsel's normal hourly fees
chargeable to Bank, shall be greater than 15% of principal and interest in which
case such billed amount based on such hourly rate shall be the attorneys' fee
payable hereunder.
If the Borrower is a corporation, this instrument covers all
indebtedness, obligations and liabilities to Bank purporting to be made or
undertaken on behalf of such corporation by any such officer or agent of said
corporation 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.
This Guaranty is made in and shall be construed in accordance with the
laws and judicial decisions of the State of South Carolina. The undersigned
agrees that any dispute arising out of this Guaranty shall be adjudicated in
either the state or federal courts of South Carolina and in no other forum. For
that purpose, the undersigned hereby submits to the jurisdiction of the state
and/or federal courts of South Carolina. The undersigned waives any defense that
venue is not proper for any action brought in any federal or state court in the
State of South Carolina.
Waiver of Appraisal Rights. The laws of South Carolina provide that in any real
estate foreclosure proceeding a defendant against whom a personal judgment is
taken or asked may within thirty days after the sale of the mortgaged property
apply to the court for an order of appraisal. The statutory appraisal value as
approved by the court would be substituted for the high bid and may decrease the
amount of any deficiency owing in connection with the transaction. TO THE
FULLEST EXTENT PERMITTED BY LAW AND AS A MATERIAL INDUCEMENT FOR LENDER TO MAKE
THE LOAN, GUARANTOR HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL
RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED
TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE MORTGAGED PROPERTY.
Witness the signature and seal of each of the undersigned.
WITNESS Community Bankshares, Inc.
_________________________________ By:_______________________________ (SEAL)
Xxxxxxx X. Xxxxxxxx, Xx.
President
Address of Guarantor(s): X.X. Xxx 0000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Xxxxxxxx: _____________ County
I, _______________, Notary Public of _________________ County, do hereby certify
that Xxxxxxx X. Xxxxxxxx, Xx., as President of Community Bankshares, Inc.,
personally appeared before me this day and acknowledged the due execution of the
foregoing instrument in writing.
Witness my hand and seal, this _______ day of October, 2004.
My Commission Expires: ---------------------------------
NOTARY PUBLIC
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