COMMERCIAL GUARANTY
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Borrower: WORLD WIDE STONE CORPORATION Lender: BANK ONE, ARIZONA, NA
0000 X 00XX XXXXXX XXXX XXXXXX XXX
XXXXXXX, XX 00000 AZ1-0311
00 X XXXXXXXXXX, XXX 000
XXXXX, XX 00000
Guarantor: XXXXX XXXXXXXXXX
0000 X 00XX XXXXXX
XXXXXXX, XX 00000
CONTINUING UNLIMITED GUARANTY. FOR GOOD AND VALUABLE CONSIDERATION, XXXXX
XXXXXXXXXX ("GUARANTOR") ABSOLUTELY AND UNCONDITIONALLY GUARANTEES AND PROMISES
TO PAY TO BANK ONE, ARIZONA, NA ("LENDER") OR ITS ORDER, IN LEGAL TENDER OF THE
UNITED STATES OF AMERICA, THE INDEBTEDNESS (AS THAT TERM IS DEFINED BELOW) OF
WORLD WIDE STONE CORPORATION ("BORROWER") TO LENDER ON THE TERMS AND CONDITIONS
SET FORTH IN THIS GUARANTY. UNDER THIS GUARANTY, THE LIABILITY OF GUARANTOR IS
UNLIMITED AND THE OBLIGATIONS OF GUARANTOR ARE CONTINUING.
DEFINITIONS. The following words shall have the following meanings when used in
this Guaranty:
BORROWER. The word "Borrower" means WORLD WIDE STONE CORPORATION.
GUARANTOR. The word "Guarantor" means XXXXX XXXXXXXXXX.
GUARANTY. The word "Guaranty" means this Guaranty made by Guarantor for the
benefit of Lender dated August 13, 1999.
INDEBTEDNESS. The word "Indebtedness" means and includes any and all of
Borrower's liabilities, obligations, debts, and indebtedness to Lender, now
existing or HEREINAFTER incurred or created, including, without limitation,
all loans, advances, interest, costs, debts, overdraft indebtedness, credit
card indebtedness, lease obligations, other obligations, and liabilities of
Borrower, or any of them, any present or future judgments against Borrower,
or any of them, and all renewals, extensions, modifications, substitutions
and rearrangements of the foregoing; and whether any such Indebtedness is
voluntarily or involuntarily incurred, due or not due, absolute or
contingent, direct or indirect, liquidated or unliquidated, determined or
undetermined; whether Borrower may be liable individually or jointly with
others, or primarily or secondarily, or as debtor, maker, comaker, drawer,
endorser, guarantor or surety; whether such Indebtedness arises by note,
draft, acceptance, guaranty, endorsement, letter of credit, assignment,
overdraft, indemnity agreement or otherwise; whether recovery on the
Indebtedness may be or may become barred or unenforceable against Borrower
for any reason whatsoever; and whether the Indebtedness arises from
transactions which may be voidable on account of infancy, insanity, ultra
xxxxx, or otherwise.
LENDER. The word "Lender" means BANK ONE, ARIZONA, NA, its successors and
assigns.
RELATED DOCUMENTS. The words "Related Documents" mean and include without
limitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages, deeds
of trust, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
NATURE OF GUARANTY. This is a guaranty of payment and not of collection.
Guarantor's liability under this Guaranty shall be open and continuous for so
long as this Guaranty remains in force. Guarantor intends to guarantee at all
times the performance and prompt payment when due, whether at maturity or
earlier by reason of acceleration or otherwise, of all Indebtedness.
Accordingly, no payments made upon the Indebtedness will discharge or diminish
the continuing liability of Guarantor in connection with any remaining portions
of the Indebtedness or any of the Indebtedness which subsequently arises or is
thereafter incurred or contracted. Any married person who signs this Guaranty
hereby expressly agrees that recourse under this agreement may be had against
both his or her separate property and community property, whether now owned or
hereafter acquired.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or
to Borrower, and will continue in full force until all Indebtedness incurred or
contracted before receipt by Lender of any notice of revocation shall have been
fully and finally paid and satisfied and all other obligations of Guarantor
under this Guaranty shall have been performed in full. If Guarantor elects to
revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written
notice of revocation must be delivered to Lender at the address of Lender listed
above or such other place as Lender may designate in writing. This Guaranty may
be revoked only with respect to Indebtedness incurred or contracted by Borrower,
or acquired or committed to by Lender after the date on which written notice of
revocation is actually received by Lender. No notice of revocation hereof shall
be effective as to any Indebtedness: (a) existing at the date of receipt of such
notice; (b) incurred or contracted by Borrower, or acquired or committed to by
Lender, prior to receipt of such notice; (c) now existing or hereafter created
pursuant to or evidenced by a loan agreement or commitment in existence prior to
receipt of such notice under which Borrower is or may become obligated to
Lender; or (d) renewals, extensions, consolidations, substitutions, and
refinancings of the foregoing. Guarantor waives notice of revocation given by
any other guarantor of the Indebtedness. If Guarantor is an individual, this
Guaranty shall bind the estate of Guarantor as to Indebtedness created both
before and after the death or incapacity of Guarantor, regardless of Lender's
actual notice of Guarantor's death or incapacity. Subject to the foregoing,
Guarantor's executor or administrator or other legal representative may
terminate this Guaranty in the same manner in which Guarantor might have
terminated it and with the same effect. Guarantor shall be liable, jointly and
severally, with Borrower and any other guarantor of all or any part of the
Indebtedness and release of any other guarantor of the Indebtedness, or
termination or revocation of any other guaranty of the Indebtedness, shall not
affect the liability of Guarantor under this Guaranty. IT IS ANTICIPATED THAT
FLUCTUATIONS MAY OCCUR IN THE AGGREGATE AMOUNT OF INDEBTEDNESS COVERED BY THIS
GUARANTY, AND IT IS SPECIFICALLY ACKNOWLEDGED AND AGREED BY GUARANTOR THAT
REDUCTIONS IN THE AMOUNT OF INDEBTEDNESS, EVEN TO ZERO DOLLARS ($0.00), SHALL
NOT CONSTITUTE A TERMINATION OF THIS GUARANTY.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before
or after any revocation hereof, WITHOUT NOTICE OR DEMAND AND WITHOUT LESSENING
GUARANTOR'S LIABILITY UNDER THIS GUARANTY, FROM TIME TO TIME: (A) TO MAKE ONE OR
MORE ADDITIONAL SECURED OR UNSECURED LOANS TO BORROWER, TO LEASE EQUIPMENT OR
OTHER GOODS TO BORROWER, OR OTHERWISE TO EXTEND ADDITIONAL CREDIT TO BORROWER;
(B) TO ALTER, COMPROMISE, RENEW, EXTEND, ACCELERATE, OR OTHERWISE CHANGE ONE OR
MORE TIMES THE TIME FOR PAYMENT OR OTHER TERMS OF THE INDEBTEDNESS OR ANY PART
OF THE INDEBTEDNESS, INCLUDING INCREASES AND DECREASES OF THE RATE OF INTEREST
ON THE INDEBTEDNESS; EXTENSIONS MAY BE REPEATED AND MAY BE FOR LONGER THAN THE
ORIGINAL LOAN TERM; (C) TO TAKE AND HOLD SECURITY FOR THE PAYMENT OF THIS
GUARANTY OR THE INDEBTEDNESS, AND EXCHANGE, ENFORCE, WAIVE, FAIL OR DECIDE NOT
TO PERFECT, AND RELEASE ANY SUCH SECURITY, WITH OR WITHOUT THE SUBSTITUTION OF
NEW COLLATERAL; (D) TO RELEASE, SUBSTITUTE, AGREE NOT TO XXX, OR DEAL WITH ANY
ONE OR MORE OF BORROWER'S SURETIES, ENDORSERS, OR OTHER GUARANTORS ON ANY TERMS
OR IN ANY MANNER LENDER MAY CHOOSE; (E) TO DETERMINE HOW, WHEN AND WHAT
APPLICATION OF PAYMENTS AND CREDITS SHALL BE MADE ON THE INDEBTEDNESS; (F) TO
APPLY ANY PROCEEDS IT RECEIVES AS A RESULT OF THE FORECLOSURE OR OTHER
REALIZATION ON ANY COLLATERAL FOR THE INDEBTEDNESS TO THAT PORTION, IF ANY, OF
THE INDEBTEDNESS NOT GUARANTEED HEREUNDER OR TO ANY OTHER INDEBTEDNESS SECURED
BY SUCH COLLATERAL, AS LENDER IN ITS DISCRETION MAY DETERMINE; (G) TO SELL,
TRANSFER, ASSIGN, OR GRANT PARTICIPATIONS IN ALL OR ANY PART OF THE
INDEBTEDNESS; AND (H) TO ASSIGN OR TRANSFER THIS GUARANTY IN WHOLE OR IN PART.
GUARANTOR'S REPRESENTATIONS, WARRANTIES, AND COVENANTS. Guarantor represents,
warrants and covenants to Lender that (a) no representations or agreements of
any kind have been made to Guarantor which would limit or qualify in any way the
terms of this Guaranty; (b) this Guaranty is executed at Borrower's request and
not at the request of Lender; (c) Guarantor has full power, right and authority
to enter into this Guaranty; (d) the provisions of this Guaranty do not
conflict with or result in a default under any agreement or other instrument
binding upon Guarantor and do not result in a violation of any law, regulation,
court decree or order applicable to Guarantor; (e) Guarantor has not and will
not, without the prior written consent of Lender, sell, lease, assign, encumber,
hypothecate, transfer, or otherwise dispose of all or substantially all of
Guarantor's assets, or any interest therein; (f) Lender has made no
representation to Guarantor as to the creditworthiness of Borrower; (g)
Guarantor will provide to Lender financial statements and other financial
information regarding Guarantor as Lender may request from time to time, in form
and detail acceptable to Lender, and all such financial information heretofore
and hereafter provided to Lender is and shall be true and correct in all
material respects and fairly presents the financial condition of Guarantor as of
the dates thereof, and no material adverse change has occurred in the financial
condition of Guarantor since the date of the most current financial statements
provided to Lender; (h) Guarantor is familiar with the current financial
condition of Borrower and has established adequate means of obtaining from
Borrower on a continuing basis information regarding Borrower's future financial
condition and is not relying on Lender to provide such information to Guarantor;
(i) as of the date hereof, and after giving effect to this Guaranty, (1)
Guarantor is and will be solvent, (2) the fair saleable value of Guarantor's
assets exceeds and will continue to exceed Guarantor's liabilities (both fixed
and contingent), (3) Guarantor is and will continue to be able to pay
Guarantor's debts as they mature, and (4) if Guarantor is not an individual,
Guarantor has and will continue to have sufficient capital to carry on its
business and all businesses in which it is about to engage; and (j) Guarantor
has the power and authority to execute, deliver and perform this Guaranty and
the other Related Documents executed by Guarantor. Guarantor agrees to keep
adequately informed from such means of any facts, events, or circumstances which
might in any way affect Guarantor's risks under this Guaranty, and Guarantor
further agrees that Lender shall have no obligation to disclose to Guarantor any
information or documents acquired by Lender in the course of its relationship
with Borrower.
GUARANTOR'S WAIVERS. Guarantor waives any right to require Lender (a) to
continue lending money or to extend other credit to Borrower;
08-13-1999 COMMERCIAL GUARANTY Page 2
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(b) to make any presentment, protest, demand, or notice of any kind, including
notice of any nonpayment of the Indebtedness or of any nonpayment related to any
collateral, or notice of any action or nonaction on the part of Borrower,
Lender, any surety, endorser, or other guarantor in connection with the
Indebtedness or in connection with the creation of new or additional loans or
obligations; (c) to notify Guarantor of any change in the manner, place, time or
terms of payment of any of the Indebtedness (including, without limitation, any
renewal, extension or other modification of any of the Indebtedness); or (d) to
notify Guarantor of any change in the interest rate accruing on any of the
Indebtedness (including, without limitation, any periodic change in such
interest rate that occurs because such Indebtedness accrues interest at a
variable rate which may fluctuate from time to time). Should Lender seek to
enforce the obligations of Guarantor hereunder, Guarantor waives any right to
require Lender to first (a) resort for payment or to proceed directly or at once
against any person, including Borrower or any other guarantor of the
Indebtedness; (b) to proceed directly against, xxxxxxxx, enforce, or exhaust any
collateral held by Lender from Borrower, Guarantor, any other guarantor, or any
other person; or (c) to pursue any other remedy within Lender's power.
Guarantor also waives any and all rights or defenses arising by reason of (a)
any election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement, including without limitation, any loss of rights Guarantor
may suffer by reason of any law limiting, qualifying, or discharging the
Indebtedness; (b) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower's
liability from any cause whatsoever, other than payment in full in legal tender,
of the Indebtedness; (c) any right to claim discharge of the Indebtedness on the
basis of unjustified impairment of any collateral for the Indebtedness; or (d)
any defenses given to guarantors at law or in equity other than actual payment
and performance of the Indebtedness. This Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
all or any part of the Indebtedness is rescinded or must otherwise be returned
by Lender upon the insolvency, bankruptcy or reorganization of Borrower,
Guarantor, any other guarantor of all or any part of the Indebtedness, or
otherwise, all as though such payment had not been made.
Guarantor further waives and agrees not to assert or claim at any time any
deductions to the amount guaranteed under this Guaranty for any claim of setoff,
counterclaim, counter demand, recoupment or similar right, whether such claim,
demand or right may be asserted by the Borrower, the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by law or public policy.
LENDER'S RIGHT OF SETOFF. Unless a lien would be prohibited by law or would
render a nontaxable account taxable, Guarantor hereby grants Lender a
contractual security interest in and hereby assigns, conveys, delivers, pledges
and transfers all of Guarantor's right, title, and interest in and to
Guarantor's accounts with Lender (whether checking, savings, or any other
account), including all accounts held jointly with someone else and all accounts
Guarantor may open in the future. Guarantor authorizes Lender, to the extent
permitted by applicable law, to charge or setoff all Indebtedness against any
and all such accounts.
ACTIONS AGAINST AND PAYMENTS BY GUARANTOR. In the event of a default in the
payment or performance of all or any part of the Indebtedness when such
Indebtedness becomes due, whether by its terms, by acceleration or otherwise,
Guarantor shall, without notice or demand, promptly pay the amount due thereon
by Guarantor to Lender, in lawful money of the United States. The exercise by
Lender of any right or remedy under this Guaranty or under any other agreement
or instrument, at law, in equity or otherwise, shall not preclude concurrent or
subsequent exercise of any other right or remedy. Whenever Guarantor pays any
sum which is or may become due under this Guaranty, written notice must be
delivered to Lender contemporaneously with such payment. In the absence of such
notice to Lender by Guarantor, any sum received by Lender on account of the
Indebtedness shall be conclusively deemed paid by Borrower.
MISCELLANEOUS PROVISIONS.
AMENDMENTS. This Guaranty, together with any Related Documents, constitutes
the entire understanding and agreement of the parties as to the matters set
forth in this Guaranty and supercedes all prior written and oral agreements
and understandings, if any, regarding same. No alteration of or amendment
to this Guaranty shall be effective unless given in writing and signed by
the party or parties sought to be charged or bound by the alteration or
amendment.
APPLICABLE LAW. This Guaranty has been delivered to Lender and accepted by
Lender in the State of Arizona. Subject to the provisions on arbitration,
this Guaranty shall be governed by and construed in accordance with the
laws of the State of Arizona without regard to any conflict of laws or
provisions thereof.
JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND LENDER
ARISING OUT OF OR IN ANY WAY RELATED TO THIS DOCUMENT, AND ANY OTHER
RELATED DOCUMENT, OR ANY RELATIONSHIP BETWEEN LENDER AND THE BORROWER. THIS
PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE FINANCING
DESCRIBED HEREIN OR IN THE OTHER RELATED DOCUMENTS.
ARBITRATION. Lender and Guarantor agree that upon the written demand of
either party, whether made before or after the institution of any legal
proceedings, but prior to the rendering of any judgment in that proceeding,
all disputes, claims and controversies between them, whether individual,
joint, or class in nature, arising from this Guaranty, any Related Document
or otherwise, including without limitation contract disputes and tort
claims, shall be resolved by binding arbitration pursuant to the Commercial
Rules of the American Arbitration Association ("AAA"). Any arbitration
proceeding held pursuant to this arbitration provision shall be conducted
in the city nearest the Borrower's address having an AAA regional office,
or at any other place selected by mutual agreement of the parties. No act
to take or dispose of any collateral shall constitute a waiver of this
arbitration agreement or be prohibited by this arbitration agreement. This
arbitration provision shall not limit the right of either party during any
dispute, claim or controversy to seek, use, and employ ancillary, or
preliminary rights and/or remedies, judicial or otherwise, for the purposes
of realizing upon, preserving, protecting, foreclosing upon or proceeding
under forcible entry and detainer for possession of, any real or personal
property, and any such action shall not be deemed an election of remedies.
Such remedies include, without limitation, obtaining injunctive relief or a
temporary restraining order, invoking a power of sale under any deed of
trust or mortgage, obtaining a writ of attachment or imposition of a
receivership, or exercising any rights relating to personal property,
including exercising the right of set-off, or taking or disposing of such
property with or without judicial process pursuant to the Uniform
Commercial Code. Any disputes, claims, or controversies concerning the
lawfulness or reasonableness of an act, or exercise of any right or remedy,
concerning any collateral, including any claim to rescind, reform, or
otherwise modify any agreement relating to the collateral, shall also be
arbitrated; provided, however that no arbitrator shall have the right or
the power to enjoin or restrain any act of either party. Judgment upon any
award rendered by any arbitrator may be entered in any court having
jurisdiction. The statute of limitations, estoppel, waiver, laches and
similar doctrines which would otherwise be applicable in an action brought
by a party shall be applicable in any arbitration proceeding, and the
commencement of an arbitration proceeding shall be deemed the commencement
of any action for these purposes. The Federal Arbitration Act (Title 9 of
the United States Code) shall apply to the construction, interpretation,
and enforcement of this arbitration provision.
COSTS AND EXPENSES. Guarantor shall also pay on demand by Lender all costs
and expenses, including, without limitation, all reasonable attorneys'
fees, incurred by Lender in connection with the enforcement and/or
collection of this Guaranty and with the collection and/or sale of any
collateral securing this Guaranty. This convenant shall survive the payment
of the Indebtedness.
NOTICES. All notices required to be given by either party to the other
under this Guaranty shall be in writing and except for revocation notices
by Guarantor, shall be effective when actually delivered or when deposited
with a nationally recognized overnight courier, or when deposited in the
United States mail, first class postage prepaid, addressed to the party to
whom the notice is to be given at the address shown above or to such other
addresses as either party may designate to the other in writing. All
revocation notices by Guarantor shall be in writing and shall be effective
only upon delivery to Lender as provided above in the section titled
"DURATION OF GUARANTY." For notice purposes, Guarantor agrees to keep
Lender informed at all times of Guarantor's current address. In the event
that Guarantor is entitled to receive any notice under the Uniform
Commercial Code, as it exists in the state governing any such notice, of
the sale or other disposition of any collateral securing all or any part of
the Indebtedness or this Guaranty, reasonable notice shall be deemed given
when such notice is given pursuant to the terms of this Subsection ten (10)
days prior to the date any public sale, or after which any private sale, of
any such collateral is to be held.
INTERPRETATION. In all cases where there is more than one Borrower, then
all words used in this Guaranty in the singular shall be deemed to have
been used in the plural where the context and construction so require; and
where there is more than one Borrower named in this Guaranty, the word
"Borrower" shall mean all and any one or more of them. This Guaranty is for
the benefit of Lender, its successors and assigns. This Guaranty is binding
upon Guarantor and Guarantors's heirs, executors, administrators, personal
representatives and successors. Caption headings in this Guaranty are for
convenience purposes only and are not to be used to interpret or define the
provisions of this Guaranty. If a court of competent jurisdiction finds any
provision of this Guaranty to be invalid or unenforceable as to any person
or circumstance, such finding shall not render that provision invalid or
unenforceable as to any other persons or circumstances, and all provisions
of this Guaranty in all other respects shall remain valid and enforceable.
If any one or more of Borrower or Guarantor are corporations or
partnerships, it is not necessary for Lender to inquire into the powers of
Borrower or Guarantor or of the officers, directors,
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partners, or agents acting or purporting to act on their behalf, and any
Indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed under this Guaranty.
WAIVER. Lender shall not be deemed to have waived any rights under this Guaranty
unless such waiver is given in writing and signed by Lender, and then only in
the specific instance and for the purpose given. No delay or omission on the
part of Lender in exercising any right shall operate as a waiver of such right
or any other right. A waiver by Lender of a provision of this Guaranty shall not
prejudice or constitute a waiver of Lender's right to thereafter demand strict
compliance with that provision or any other provision of this Guaranty. No prior
waiver by Lender, nor any course of dealing between Lender and Guarantor, shall
constitute a waiver of any of Lender's rights or of any of Guarantor's
obligations as to any future transactions. Whenever the consent of Lender is
required under this Guaranty, the granting of such consent by Lender in any
instance shall not constitute continuing consent to subsequent instances where
such consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
ANNUAL TAX RETURNS OF GUARANTOR. So long as this Guaranty is in effect,
Guarantor shall provide Lender, within ninety (90) days of the filing thereof
each year, a true and complete copy of his/her Federal Income Tax return,
including all exhibits and schedules attached and being signed and dated.
ANNUAL FINANCIAL STATEMENTS OF GUARANTOR. So long as this Guaranty is in effect,
Guarantor shall provide Lender, on or before October 19th, each year within
ninety (90) days, a financial statement, said financial statements to be in form
and with such detail as reasonably acceptable to Lender.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT
THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS
GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE
MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL
ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY
IS DATED AUGUST 13, 1999.
GUARANTOR:
X /s/ Xxxxx Xxxxxxxxxx
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