NationsBank of Texas, N.A. Customer# 4556900
Date: October 1, 1996
CONTINUING AND UNCONDITIONAL GUARANTY
BANK: GUARANTOR:
NationsBank of Texas, N.A. XXXX X. XXXXXXXX
Banking Center: PRIVATE CLIENT GROUP 000 XXXXXXXX XXXXX, XXXXX 0000
XXXXXX, XXXXX 00000
000 XXXX XXXXXX
XXXXXX, XXXXX 00000-0000
County: DALLAS County: Dallas
"BORROWER": JAYHAWK MEDICAL ACCEPTANCE CORPORATION
1. GUARANTY. FOR VALUE RECEIVED, and to induce NationsBank of Texas, N.A.
(Attn: Private Client Group) ("Bank") to make loans or advances or to extend
credit or other financial accommodations or benefits, with or without
security, to or for the account of Borrower, the undersigned "Guarantor", if
more than one, then each of them jointly and severally, hereby irrevocably and
unconditionally guarantees to Bank the full and prompt payment when due,
whether by acceleration or otherwise, of any and all Liabilities (as
hereinafter defined) of Borrower to Bank. This Guaranty is continuing and
unlimited as to the amount, and is cumulative to and does not supersede any
other guaranties.
The undertakings of Guarantor hereunder are independent of the Liabilities of
Borrower and a separate action or actions for payment, damages or performance
may be brought or prosecuted against Guarantor, whether or not an action is
brought against Borrower or to realize upon the security for the Liabilities,
whether or not Borrower is joined in any such action or actions, and whether
or not notice is given or demand is made upon Borrower.
Bank shall not be required to proceed first against Borrower, or any other
person, or entity, whether primarily or secondarily liable, or against any
collateral held by it, before resorting to Guarantor for payment, and
Guarantor shall not be entitled to assert as a defense to the enforceability
of the Guaranty any defense of Borrower with respect to any Liabilities.
2. PARAGRAPH HEADINGS, GOVERNING LAW AND BINDING EFFECT. Xxxxxxxxx agrees
that the paragraph headings in this Guaranty are for convenience only and that
they will not limit any of the provisions of this Guaranty. Guarantor further
agrees that this Guaranty shall be deemed to have been made in the State of
Texas at Bank's address indicated at the beginning of this Guaranty and shall
be governed by, and construed in accordance with, the laws of the State of
Texas, and is performable in the City and County of Texas at Bank's address
indicated at the beginning of this Guaranty. In any litigation in connection
with or to enforce this Guaranty or any other Loan Documents, Guarantor, and
each of them, irrevocably consent to and confer personal jurisdiction on the
courts of the State of Texas or the United States courts located within the
State of Texas. Nothing contained herein shall, however, prevent Bank from
bringing any action or exercising any rights within any other state or
jurisdiction or from obtaining personal jurisdiction by any other means
available by applicable law. This Guaranty is binding upon Guarantor, his,
their or its executors, administrators, successors or assigns, and shall inure
to the benefit of Bank, its successors, indorsees or assigns. Anyone
executing this Guaranty shall be bound by the terms hereof without regard to
execution by anyone else.
3. DEFINITIONS.
A. "Guarantor" shall mean Guarantor or any one or more of them.
B. "Liability" or "Liabilities" shall mean without limitation, all
liabilities, indebtedness, and obligations of Borrower under that certain
Promissory Note of even date herewith to Bank, whether direct or indirect,
absolute or contingent, joint or several, secured or unsecured, due or not
due, contractual or tortious, liquidated or unliquidated, arising by operation
of law or otherwise, now or hereafter existing, or held or to be held by Bank
for its own account or as agent for another or others, including but not
limited to all extensions or renewals thereof, and all sums payable under or
by virtue thereof, including without limitation, all amounts of principal and
interest, all expenses (including reasonable attorney's fees and cost of
collection) incurred in the collection thereof or the enforcement of rights
thereunder (including without limitation, any liability arising from failure
to comply with state or federal laws, rules and regulations concerning the
control of hazardous waste or substances at or with respect to any real estate
securing any loan guaranteed hereby), whether arising in the ordinary course
of business or otherwise. If Borrower is a partnership, corporation or other
entity the term "Liability" or "Liabilities" as used herein shall include all
Liabilities to Bank of any successor entity or entities.
C. "Loan Documents" shall mean all deeds to secure debt, deeds of trust,
mortgages, security agreements and other documents securing payment of the
Liabilities and all notes and other agreements, documents, and instruments
evidencing or relating to the Liabilities.
4. WAIVERS BY GUARANTOR. Guarantor waives notice of acceptance of this
Guaranty, notice of any Liabilities or Obligations to which it may apply,
presentment, demand for payment, protest, notice of dishonor or nonpayment of
any Liabilities, notice of intent to accelerate, notice of acceleration, and
notice of any suit or the taking of other action by Bank against Borrower,
Guarantor or any other person, any applicable statute of limitations and any
other notice to any party liable on any Loan Document (including Guarantor).
Each Guarantor also hereby subordinates to the claims, rights and remedies of
Bank any claim, right or remedy which such Guarantor may now have or hereafter
acquire against Borrower that arises hereunder and/or from the performance by
any other Guarantor hereunder including, without limitation, any claim, remedy
or right of subrogation, reimbursement, exoneration, contribution,
indemnification, or participation in any claim, right or remedy of Bank
against Borrower or against any security which Bank now has or hereafter
acquires, whether or not such claim, right or remedy arises in equity, under
contract, by statute, under common law or otherwise. Each Guarantor agrees
that such Guarantor will not exercise any claim, right or remedy against
Borrower unless and until all Liabilities have been paid in full.
Guarantor also waives the benefits of any provision of law requiring that Bank
exhaust any right or remedy, or take any action, against Borrower, any
Guarantor, any other person and/or property including but not limited to the
provisions of the Texas Civil Practice and Remedies Code 17.001, Texas Rules
of Civil Procedure Rule 31 and the Texas Business and Commerce Code Chapter
34, as amended, or otherwise.
Bank may at any time and from time to time (whether before or after revocation
or termination of this Guaranty) without notice to Guarantor (except as
required by law), without incurring responsibility to Guarantor, without
impairing, releasing or otherwise affecting the obligations of Guarantor, in
whole or in part, and without the indorsement or execution by Guarantor of any
additional consent, waiver or guaranty: (a) change the manner, place or terms
of payment, or change or extend the time of or renew, or change any interest
rate or alter any Liability or installment thereof, or any security therefor;
(b) loan additional monies or extend additional credit to Borrower, with or
without security, thereby creating new Liabilities the payment of which shall
be guaranteed hereunder, and the Guaranty herein made shall apply to the
Liabilities as so changed, extended, surrendered, realized upon or otherwise
altered; (c) sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any property at any time pledged or
mortgaged to secure the Liabilities and any offset there against; (d) exercise
or refrain from exercising any rights against Borrower or others (including
Guarantor) or act or refrain from acting in any other manner; (e) settle or
compromise any Liability or any security therefor and subordinate the payment
of all or any part thereof to the payment of any Liability of any other
parties primarily or secondarily liable on any of the Liabilities; (f)
release or compromise any Liability of Guarantor hereunder or any Liability of
any other parties primarily or secondarily liable on any of the Liabilities;
or (g) apply any sums from any sources to any Liability without regard to any
Liabilities remaining unpaid.
5. SUBORDINATION. Upon demand of Bank, Guarantor agrees that it will not
demand, take or receive from Borrower, by set-off or in any other manner,
payment of any debt now and at any time or times hereafter owing by Borrower
to Guarantor unless and until all the Liabilities shall have been fully paid
and performed, and any security interest, liens or encumbrances which
Guarantor now has and from time to time hereafter may have upon any of the
assets of Borrower shall be made subordinate, junior and inferior and
postponed in priority, operation and effect to any security interest of Bank
in such assets.
6. WAIVERS BY BANK. No delay on the part of Bank in exercising any of its
options, powers or rights, and no partial or single exercise thereof, shall
constitute a waiver thereof. No waiver of any of its rights hereunder, and no
modification or amendment of this Guaranty, shall be deemed to be made by Bank
unless the same shall be in writing, duly signed on behalf of Bank; and each
such waiver, if any, shall apply only with respect to the specific instance
involved, and shall in no way impair the rights of Bank or the obligations of
Guarantor to Bank in any other respect at any other time.
7. TERMINATION. This Guaranty shall be binding on each Guarantor until
written notice of revocation signed by such Guarantor or written notice of the
death of such Guarantor shall have been received by Bank, notwithstanding
change in name, location, composition or structure of, or the dissolution,
termination or increase, decrease or change in personnel, owners or partners
of Borrower, or any one or more of Guarantors. No notice of revocation or
termination hereof shall affect in any manner rights arising under this
Guaranty with respect to Liabilities that shall have been committed, created,
contracted, assumed or incurred prior to receipt of such written notice
pursuant to any agreement entered into by Bank prior to receipt of such
notice. The sole effect of such notice of revocation or termination hereof
shall be to exclude from this Guaranty, Liabilities thereafter arising that
are unconnected with Liabilities theretofore arising or transactions entered
into theretofore.
In the event of the death of a Guarantor, the liability of the estate of the
deceased Guarantor shall continue in full force and effect as to (i) the
Liabilities existing at the date of death, and any renewals or extensions
thereof, and (ii) loans or advances made to or for the account of Borrower
after the date of death of the deceased Guarantor pursuant to a commitment
made by Bank to Borrower prior to the date of such death. As to all surviving
Guarantors, this Guaranty shall continue in full force and effect after the
death of a Guarantor, not only as to the Liabilities existing at that time,
but also as to Liabilities thereafter incurred by Borrower to Bank.
8. PARTIAL INVALIDITY AND/OR ENFORCEABILITY OF GUARANTY. The
unenforceability or invalidity of any provision of this Guaranty shall not
affect the enforceability or validity of any other provision herein and the
invalidity or unenforceability of any provision of any Loan Document as it may
apply to any person or circumstance shall not affect the enforceability or
validity of such provision as it may apply to other persons or circumstances.
In the event Bank is required to relinquish or return the payments, the
collateral or the proceeds thereof, in whole or in part, which had been
previously applied to or retained for application against any Liability, by
reason of a proceeding arising under the Bankruptcy Code, or for any other
reason, this Guaranty shall automatically continue to be effective
notwithstanding any previous cancellation or release effected by Bank.
9. CHANGE OF STATUS. Guarantor will not become a party to a merger or
consolidation with any other company, except where Guarantor is the surviving
corporation or entity, and all covenants under this Guaranty are assumed by
the surviving entity. Further, Guarantor may not change its legal structure,
without the written consent of Bank and all covenants under this Guaranty are
assumed by the new or surviving entity. Guarantor further agrees that this
Guaranty shall be binding, legal and enforceable against Guarantor in the
event Borrower changes its name, status or type of entity.
10. FINANCIAL AND OTHER INFORMATION. Guarantor has made an independent
investigation of the financial condition and affairs of Borrower prior to
entering into this Guaranty, and Guarantor will continue to make such
investigation; and in entering into this Guaranty Guarantor has not relied
upon any representation of Bank as to the financial condition, operation or
creditworthiness of Borrower. Guarantor further agrees that Bank shall have
no duty or responsibility now or hereafter to make any investigation or
appraisal of Borrower on behalf of Guarantor or to provide Guarantor with any
credit or other information which may come to its attention now or hereafter.
11. NOTICES. Notice shall be deemed reasonable if mailed postage prepaid
at least five (5) days before the related action to the address of Guarantor
or Bank, at their respective addresses indicated at the beginning of this
Guaranty, or to such other address as any party may designate by written
notice to the other party. Each notice, request and demand shall be deemed
given or made, if sent by mail, upon the earlier of the date of receipt or
five (5) days after deposit in the U.S. Mail, first class postage prepaid, or
if sent by any other means, upon delivery.
12. GUARANTOR DUTIES. Guarantor shall upon notice or demand by Bank promptly
and with due diligence pay all Liabilities for the benefit of Bank in the
event of (a) the occurrence of any monetary default under any Loan Documents;
(b) the failure of any Borrower or Guarantor to pay any material liability or
indebtedness of any Borrower or Guarantor to Bank, or to any affiliate of Bank
and the continuation of such failure for five (5) days after Bank provides
Guarantor with notice thereof
.
13. REMEDIES. Upon the failure of Guarantor to fulfill its duty to pay
all Liabilities as required hereunder, Bank shall have all of the remedies of
a creditor and, to the extent applicable, of a secured party, under all
applicable law, and without limiting the generality of the foregoing, Bank
may, at its option and without notice or demand: (a) declare any Liability
due and payable at once; and (b) take possession of any collateral pledged by
Borrower or Guarantor wherever located, and sell, resell, assign, transfer and
deliver all or any part of said collateral of Borrower or Guarantor at any
public or private sale or otherwise dispose of any or all of the collateral in
its then condition, for cash or on credit or for future delivery, and in
connection therewith Bank may impose reasonable conditions upon any such sale,
and Bank, unless prohibited by law the provisions of which cannot be waived,
may purchase all or any part of said collateral to be sold, free from and
discharged of all trusts, claims, rights or redemption and equities of
Borrower or Guarantor whatsoever; Guarantor acknowledges and agrees that the
sale of any collateral through any nationally recognized broker-dealer,
investment banker or any other method common in the securities industry shall
be deemed a commercially reasonable sale under the Uniform Commercial Code or
any other equivalent statute or federal law, and expressly waives notice
thereof except as provided herein; and (c) set-off against any or all
liabilities of Guarantor all money owed by Bank or any of its agents or
affiliates in any capacity to Guarantor whether or not due, and also set-off
against all other Liabilities of Guarantor to Bank all money owed by Bank in
any capacity to Guarantor, and if exercised by Bank, Bank shall be deemed to
have exercised such right of set-off and to have made a charge against any
such money immediately upon the occurrence of such default although made or
entered on the books subsequent thereto.
Bank shall have a properly perfected security interest in all of Guarantor's
funds on deposit with Bank to secure the balance of any Liabilities and/or
Obligations that Guarantor may now or in the future owe Bank. Bank is granted
a contractual right of set-off and will not be liable for dishonoring checks
or withdrawals where the exercise of Bank's contractual right of set-off or
security interest results in insufficient funds in Guarantor's account. As
authorized by law, Guarantor grants to Bank this contractual right of set-off
and security interest in all property of Guarantor now or at anytime hereafter
in the possession of Bank, including but not limited to any joint account,
special account, account by the entireties, tenancy in common, and all
dividends and distributions now or hereafter in the possession or control of
Bank.
14. ATTORNEY FEES, COST AND EXPENSES. Guarantor shall pay all costs of
collection and reasonable attorney's fees, including reasonable attorney's
fees in connection with any suit, mediation or arbitration proceeding, out of
Court payment agreement, trial, appeal, bankruptcy proceedings or otherwise,
incurred or paid by Bank in enforcing the payment of any Liability or
defending this agreement.
15. PRESERVATION OF PROPERTY. Bank shall not be bound to take any steps
necessary to preserve any rights in any property pledged as collateral to Bank
to secure Borrower and/or Guarantor's Liabilities and Obligations as against
prior parties who may be liable in connection therewith, and Borrower and
Guarantor hereby agree to take any such steps. Bank, nevertheless, at any
time, may (a) take any action it deems appropriate for the care or
preservation of such property or of any rights of Borrower and/or Guarantor or
Bank therein; (b) demand, sue for, collect or receive any money or property at
any time due, payable or receivable on account of or in exchange for any
property pledged as collateral, to Bank to secure Borrower and/or Guarantor's
Liabilities to Bank; (c) compromise and settle with any person liable on such
property; or (d) extend the time of payment or otherwise change the terms of
the Loan Documents as to any party liable on the Loan Documents, all without
notice to, without incurring responsibility to, and without affecting any of
the Obligations or Liabilities of Guarantor.
16. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF
J.A.M.S./XXXXXXXXX OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL
RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES
SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY
COURT HAVING JURISDICTION. ANY PARTY TO THIS INSTRUMENT, AGREEMENT OR
DOCUMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES
IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF
ANY BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS INSTRUMENT,
AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN
ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL
60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL
BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES
OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT,
AGREEMENT OR DOCUMENT; OR (II) BE A WAIVER BY BANK OF THE PROTECTION AFFORDED
TO IT BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III)
LIMIT THE RIGHT OF BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT
NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY
REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR
THE APPOINTMENT OF A RECEIVER. BANK MAY EXERCISE SUCH SELF HELP RIGHTS,
FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES
BEFORE, DURING OR AFTER THE PENDENCY
OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS INSTRUMENT, AGREEMENT
OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION
OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY
REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE
CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR
CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
18. CONTROLLING DOCUMENT. To the extent that this Continuing and
Unconditional Guaranty conflicts with or is in any way incompatible with any
other Loan Document concerning this Obligation, any promissory note shall
control over any other document, and if such promissory note does not address
an issue, then each other document shall control to the extent that it deals
most specifically with an issue.
19. NOTICE OF FINAL AGREEMENT.
THIS WRITTEN CONTINUING AND UNCONDITIONAL GUARANTY REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the undersigned has caused this guaranty to be executed on
this 1st day of October, 1996.
NATIONSBANK OF TEXAS, N.A. GUARANTOR:
By:/s/ Xxxxxx X. Xxxxx /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx, Vice President
INDIVIDUAL ACKNOWLEDGMENT
State of Texas_________________ )
)
County of Dallas_______________ )
This instrument was acknowledged before me on Oct. 1_____________, 1996____, by
_______________________________________________. /s/ Xxxx X. Xxxxxxxx
(Guarantor)
(Seal)
/s/ Xxxxxx Xxxxxx XxXxxx
Notary Public
in and for the State of
Texas
12/12/96 Xxxxxx Xxxxxx XxXxxx
My Commission Expires Print Name of Notary
