GUARANTY
Exhibit 10.72
| Wilmington, Delaware | December 31, 2008 |
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and to induce Ullico Inc., a Maryland corporation (herein, with its participants,
successors and assigns, called “Lender”), at its option, at any time or from time to time
to make loans or extend other accommodations to or for the account of any of Patriot Risk
Management, Inc., a Delaware corporation (formerly known as SunCoast Holdings, Inc.)
(“PRM”), PRS Group, Inc., a Delaware corporation (formerly known as Patriot Risk
Management, Inc.), Guarantee Insurance Group, Inc., a Delaware corporation (formerly known as
Brandywine Insurance Holdings, Inc.), Patriot Risk Services, Inc., a Delaware corporation, Patriot
Risk Management of Florida, Inc., a Delaware corporation, and SunCoast Capital, Inc., a Delaware
corporation (herein collectively called “Borrower”), or to engage in any other transactions
with Borrower, the Undersigned hereby absolutely and unconditionally guarantees to Lender the full
and prompt payment when due, whether at maturity or earlier by reason of acceleration or otherwise,
of the debts, liabilities and obligations described as follows:
| A. | If this o is checked, the Undersigned guarantees to Lender the payment and performance of the debt, liability or obligation of Borrower to Lender evidenced by or arising out of the following: and any extensions, renewals or replacements thereof (hereinafter referred to as the “Indebtedness”). | ||
| B. | If this þ is checked, the Undersigned guarantees to Lender the payment and performance of each and every debt, liability and obligation of every type and description which Borrower may now or at any time hereafter owe to Lender (whether such debt, liability or obligation now exists or is hereafter created or incurred, and whether it is or may be direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or joint, several, or joint and several; all such debts, liabilities and obligations being hereinafter collectively referred to as the “Indebtedness”). Without limitation, this guaranty includes the following described debt(s): Commercial Loan Agreement, Commercial Promissory Note, Stock Pledge Agreement and Commercial Security Agreement each of even date herewith by and among Borrower and Lender. |
The Undersigned further acknowledges and agrees with Xxxxxx that:
1. No act or thing need occur to establish the liability of the Undersigned hereunder, and no
act or thing, except full payment and discharge of all Indebtedness, shall in any way exonerate the
Undersigned or modify, reduce, limit or release the liability of the Undersigned hereunder.
2. This is an absolute, unconditional and continuing guaranty of payment of the Indebtedness
and shall continue to be in force and be binding upon the Undersigned, whether or not all
Indebtedness is paid in full, until this guaranty is revoked by written notice actually
received by the Lender, and such revocation shall not be effective as to Indebtedness existing or
committed for at the time of actual receipt of such notice by the Lender, or as to any renewals,
extensions and refinancings thereof. If there be more than one Undersigned, such revocation shall
be effective only as to the one so revoking. The death or incompetence of the Undersigned shall not
revoke this guaranty, except upon actual receipt of written notice thereof by Xxxxxx and then only
as to the decedent or the incompetent and only prospectively, as to future transactions, as herein
set forth.
3. If the Undersigned shall be dissolved, shall die, shall be or become insolvent (however
defined) or shall revoke this guaranty, then the Lender shall have the right to declare immediately
due and payable, and the Undersigned will forthwith pay to the Lender, the full amount of all
Indebtedness, whether due and payable or unmatured. If the Undersigned voluntarily commences or
there is commenced involuntarily against the Undersigned a case under the United States Bankruptcy
Code, the full amount of all Indebtedness, whether due and payable or unmatured, shall be
immediately due and payable without demand or notice thereof.
4. The liability of the Undersigned hereunder shall be unlimited to a principal amount (if
unlimited or if no amount is stated, the Undersigned shall be liable for all Indebtedness, without
any limitation as to amount), plus accrued interest thereon and all attorneys’ fees, collection
costs and enforcement expenses referable thereto. Indebtedness may be created and continued in any
amount, whether or not in excess of such principal amount, without affecting or impairing the
liability of the Undersigned hereunder. The Lender may apply any sums received by or available to
Lender on account of the Indebtedness from Borrower or any other person (except the Undersigned),
from their properties, out of any collateral security or from any other source to payment of the
excess. Such application of receipts shall not reduce, affect or impair the liability of the
Undersigned hereunder. If the liability of the Undersigned is limited to a stated amount pursuant
to this paragraph 4, any payment made by the Undersigned under this guaranty shall be effective to
reduce or discharge such liability only if accompanied by a written transmittal document, received
by the Lender, advising the Lender that such payment is made under this guaranty for such purpose.
5. The Undersigned will pay or reimburse Lender for all costs and expenses (including
reasonable attorneys’ fees and legal expenses) incurred by Lender in connection with the
protection, defense or enforcement of this guaranty in any litigation or bankruptcy or insolvency
proceedings.
6. This guaranty is o unsecured; o secured by a mortgage or security agreement
dated ; þ secured by a pledge of the Undersigned’s stock of PRM.
7. Whether or not any existing relationship between the Undersigned and Borrower has been
changed or ended and whether or not this guaranty has been revoked, Lender may, but shall not be
obligated to, enter into transactions resulting in the creation or continuance of Indebtedness,
without any consent or approval by the Undersigned and without any notice to the Undersigned. The
liability of the Undersigned shall not be affected or impaired by any of the following acts or
things (which Lender is expressly authorized to do, omit or suffer from time to time, both before
and after revocation of this guaranty, without notice to or approval by the Undersigned): (i) any
acceptance of collateral security, guarantors, accommodation parries or
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sureties for any or all indebtedness; (ii) any one or more extensions or renewals of Indebtedness
(whether or not for longer than the original period) or any modification of the interest rates,
maturities or other contractual terms applicable to any Indebtedness; (iii) any waiver, adjustment,
forbearance, compromise or indulgence granted to Borrower, any delay or lack of diligence in the
enforcement of Indebtedness, or any failure to institute proceedings, file a claim, give any
required notices or otherwise protect any Indebtedness; (iv) any full or partial release of,
settlement with, or agreement not to sue, Borrower or any other guarantor or other person liable in
respect of any Indebtedness; (v) any discharge of any evidence of Indebtedness or the acceptance of
any instrument in renewal thereof or substitution therefor; (vi) any failure to obtain collateral
security (including rights of setoff) for Indebtedness, or to see to the proper or sufficient
creation and perfection thereof, or to establish the priority thereof, or to protect, insure, or
enforce any collateral security; or any release, modification, substitution, discharge, impairment,
deterioration, waste, or loss of any collateral security; (vii) any foreclosure or enforcement of
any collateral security; (viii) any transfer of any Indebtedness or any evidence thereof; (ix) any
order of application of any payments or credits upon Indebtedness; (x) any election by the Lender
under §1111(b)(2) of the United States Bankruptcy Code.
8. The Undersigned waives any and all defenses, claims and discharges of Borrower, or any
other obligor, pertaining to Indebtedness, except the defense of discharge by payment in full.
Without limiting the generality of the foregoing, the Undersigned will not assert, plead or enforce
against Lender any defense of waiver, release, statute of limitations, res judicata, statute of
frauds, fraud, incapacity, minority, usury, illegality or unenforceability which may be available
to Borrower or any other person liable in respect of any Indebtedness, or any setoff available
against Lender to Borrower or any such other person, whether or not an account of a related
transaction. The Undersigned expressly agrees that the Undersigned shall be and remain liable, to
the fullest extent permitted by applicable law, for any deficiency remaining after foreclosure of
any mortgage or security interest securing Indebtedness, whether or not the liability of Borrower
or any other obligor for such deficiency is discharged pursuant to statute or judicial decision.
The Undersigned shall remain obligated, to the fullest extent permitted by law, to pay such amounts
as though the Borrower’s obligations had not been discharged.
9. The Undersigned further agrees that the Undersigned shall be and remain obligated to pay
Indebtedness even though any other person obligated to pay Indebtedness, including Borrower, has
such obligation discharged in bankruptcy or otherwise discharged by law. “Indebtedness” shall
include post-bankruptcy petition interest and attorneys’ fees and any other amounts which Borrower
is discharged from paying or which do not otherwise accrue to Indebtedness due to Borrower’s
discharge, and the Undersigned shall remain obligated to pay such amounts as though Borrower’s
obligations had not been discharged.
10. If any payment applied by Lender to Indebtedness is thereafter set aside, recovered,
rescinded or required to be returned for any reason (including, without limitation, the bankruptcy,
insolvency or reorganization of Borrower or any other obligor), the Indebtedness to which such
payment was applied shall for the purposes of this guaranty be deemed to have continued in
existence, notwithstanding such application, and this guaranty shall be enforceable as to such
Indebtedness as fully as if such application had never been made.
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11. The Undersigned waives any claim, remedy or other right which the Undersigned may now have
or hereafter acquire against Borrower or any other person obligated to pay Indebtedness arising out
of the creation or performance of the Undersigned’s obligation under this guaranty, including,
without limitation, any right of subrogation, contribution, reimbursement, indemnification,
exoneration, and any right to participate in any claim or remedy the Undersigned may have against
the Borrower, collateral, or other party obligated for Borrower’s debts, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law.
12. The Undersigned waives presentment, demand for payment, notice of dishonor or nonpayment
and protest of any instrument evidencing Indebtedness. Lender shall not be required first to resort
for payment of the Indebtedness to Borrower or other persons or their properties, or first to
enforce, realize upon or exhaust any collateral security for Indebtedness, before enforcing this
guaranty.
13. The liability of the Undersigned under this guaranty is in addition to and shall be
cumulative with all other liabilities of the Undersigned to Lender as guarantor or otherwise,
without any limitation as to amount, unless the instrument or agreement evidencing or creating such
other liability specifically provides to the contrary.
14. This guaranty shall be enforceable against each person signing this guaranty, even if only
one person signs and regardless of any failure of other persons to sign this guaranty. If there be
more than one signer, all agreements and promises herein shall be construed to be, and are hereby
declared to be, joint and several in each of every particular and shall be fully binding upon and
enforceable against either, any or all of the Undersigned. This guaranty shall be effective upon
delivery to Lender, without further act, condition or acceptance by Lender, shall be binding upon
the Undersigned and the heirs, representatives, successors and assigns of the Undersigned and shall
inure to the benefit of Lender and its participants, successors and assigns. Any invalidity or
unenforceability of any provision or application of this guaranty shall not affect other lawful
provisions and application hereof, and to this end the provisions of this guaranty are declared to
be severable. Except as authorized by the terms herein, this guaranty may not be waived, modified,
amended, terminated, released or otherwise changed except by a writing signed by the Undersigned
and Lender. This guaranty shall be governed by the laws of the State of Delaware, without regard to
any of its conflict of law principles. The Undersigned waives notice of Xxxxxx’s acceptance hereof.
The undersigned also irrevocably waives any and all rights he may have to a trial by jury in any
action, proceeding or claim of any nature relating to this guaranty.
15. Notwithstanding any other provision of this guaranty, in the event Xxxxxx executes upon
this guaranty, Xxxxxx will not seek to attach, and waives its right to proceed against, guarantor’s
residential real property, household personal property or personal automobile.
16. Any loan which has been or may be extended by the Undersigned to Borrower shall be
postponed and subordinated in right of payment to all amounts due and owing to Lender in connection
with the Indebtedness. The Undersigned shall not accept any payment from Borrower with respect to
any such subordinated loan made by the Undersigned to Borrower until
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such time as the Indebtedness shall have been paid in full and the Commercial Loan Agreement shall
have been terminated. In the event the Undersigned collects or receives any payment with respect to
his subordinated indebtedness at a time when the Undersigned is not permitted to receive any such
payment, then the Undersigned will forthwith deliver, or cause to be delivered, the same to Lender
in precisely the form held by the Undersigned and until so delivered, the same shall be held in
trust by the Undersigned as the property of Lender and shall not be commingled with other property
of the Undersigned.
[Signature Page Follows]
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IN WITNESS WHEREOF, this guaranty has been duly executed by the Undersigned the day and year
first above written.
| /s/ Xxxxxx X. Xxxxxxx | ||||
| Xxxxxx X. Xxxxxxx, Individually | ||||
| “Undersigned” shall refer to all persons who sign this guaranty, severally and jointly. | ||||
