GUARANTY OF PAYMENT AND PERFORMANCE
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("Guaranty")
Dated as of December 28, 1999
1. FOR VALUE RECEIVED and in order to induce BANK ONE, KENTUCKY,
NA, a national banking association, and its successors and assigns, 000
Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (the "Bank"), to enter
into that certain Loan Agreement of even date and to continue to extend
credit to COMMONWEALTH PREMIUM FINANCE CORPORATION (the "Borrower"), the
undersigned, UNIFIED FINANCIAL SERVICES, INC. (the "Guarantor") does
hereby personally and unconditionally guarantee to the holder of the
Renewal Revolving Credit Note dated as of December 28, 1999, and made by
Borrower payable to the order of Bank in the original principal amount
of $2,500,000.00 (the "Note") the due and punctual payment of all
installments of principal and interest now or in the future due under
the Note, as and when the same shall be due and payable thereunder in
accordance with its terms, and whether the same be declared due by the
holder of the Note prior to its stated maturity date by virtue of
default thereunder. The undersigned further guarantees the prompt
performance by Borrower of all non-monetary undertakings, covenants and
agreements to be performed by Borrower under the Note.
2. Guarantor consents and agrees that the whole or any part of
the security now or hereafter held for the Note may be exchanged,
compromised, surrendered or released from time to time; that the time or
place of payment of the Note or of any security therefor may be
exchanged or extended, in whole or in part, to a time certain or
otherwise, and the Note may be renewed or accelerated, in whole or in
part; that Borrower may be extended further loans and be granted
indulgences generally; that any of the provisions of the Note, or of any
instrument securing or pertaining to the security for the same, may be
modified or waived (either expressly or through tacit acquiescence);
that any party liable for the payment of the Note may be granted
indulgences or released; that neither the death, insolvency, bankruptcy,
dissolution, nor disability of Borrower or of Guarantor shall affect the
obligations hereunder of Guarantor; that no claim need be asserted
against the personal representatives, guardian, trustee in bankruptcy or
receiver of any deceased, incompetent, bankrupt or insolvent Borrower or
guarantor; that any deposit balance to the credit of Borrower, Guarantor
or any other party liable for payment of the Note or liable upon any
security therefor may be released from time to time in whole or in part,
at, before or after the stated, extended or accelerated maturity date of
the Note; and that the undersigned Guarantor shall remain bound
hereunder, notwithstanding any such exchange, compromise, surrender,
extension, renewal, acceleration, modification, waiver, indulgence,
release or other action, all of which may be affected without notice to
or further assent or agreement by Guarantor.
3. Guarantor expressly waives:
(a) Notice of acceptance of this Guaranty;
(b) Presentment and demand for payment of the Note;
(c) Protest and notice of protest, dishonor or
default to Guarantor or to any other party with
respect to the Note or any security for the Note;
(d) Demand for payment under this Guaranty;
(e) Notice of disposition of any security for the
Note; and
(f) All rights of indemnity, exoneration,
reimbursement, contribution and/or subrogation
of Guarantor against Borrower.
4. This is a guaranty of payment as to monetary obligations and
not of collection. The liability of Guarantor under this Guaranty shall
be direct and immediate and not conditional or contingent upon the
pursuit of any remedies against Borrower or any other guarantor or other
person nor against the security or liens available to the holder for the
payment of the Note. Guarantor waives any claim to marshaling of assets
and waives any right to require that an action be brought against
Borrower or any other person prior to action against Guarantor hereunder
and waives any right to require that resort be had to any security for
the Note or to any balance of any deposit account or credit on the books
of the holder of the Note in favor of Borrower or any other party prior
to action by the holder of the Note against Guarantor hereunder. If the
Note is partially paid through the election of the holder thereof to
pursue any of the remedies mentioned in this literary paragraph or if
the Note is otherwise partially paid, Guarantor shall remain personally
liable for the entire unpaid principal balance of, and all accrued
interest on, the Note.
5. The Note shall constitute the primary independent and
continuing obligation of Guarantor, who shall be liable for payment of
the debt evidenced by the Note, notwithstanding the partial or total
invalidity of the Note.
6. The obligations of Guarantor under this Guaranty shall not be
subject to any counterclaim, set off, deduction or defense based upon
any claim Guarantor may have against Borrower or Bank, and the
obligations of Guarantor under this Guaranty shall remain in full force
and effect, without regard to, and shall not be released, discharged or
in any way modified or affected by, any circumstance or condition
(whether or not Guarantor shall have any knowledge or notice thereof)
including, but not limited to, any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or
similar proceeding with respect to Borrower or its properties or its
creditors, or any action taken by any trustee or receiver or by any
court in any such proceeding.
7. In the event of any default by Borrower under the Note,
Guarantor shall pay to Bank, to the extent allowable by law, such
further amount as shall be sufficient to fully reimburse Bank for all of
its costs and expenses of enforcing its rights and remedies under the
Note including, without limitation, Bank's reasonable attorneys' fees
and court costs, and all of same shall be evidenced by the Note and this
Guaranty.
8. This Guaranty shall be construed in accordance with and
governed by the laws of the Commonwealth of Kentucky, without reference
to its principles of conflicts of laws.
9. GUARANTOR HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR
AMONG THEM ARISING OUT OF OR IN ANY WAY
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RELATED TO THIS GUARANTY, ANY OTHER LOAN DOCUMENT OR ANY RELATIONSHIP
BETWEEN BANK AND BORROWER. THIS PROVISION IS A MATERIAL INDUCEMENT TO
BANK TO PROVIDE THE FINANCING DESCRIBED HEREIN OR IN THE OTHER LOAN
DOCUMENTS.
10. Guarantor agrees that the sole proper venue for the
determination of any litigation commenced by either Guarantor or Bank on
any basis shall be in a court of competent jurisdiction which is located
in Fayette County, Kentucky, and the parties hereby expressly declare
that any other venue shall be improper and Guarantor expressly waives
any right to a determination of any such litigation against Guarantor by
a court in any other venue. Guarantor further agrees that service of
process by any judicial officer or by registered or certified U.S. mail
shall establish personal jurisdiction over Guarantor, and Guarantor
waives any rights under the laws of any state to object to jurisdiction
within the Commonwealth of Kentucky. The aforesaid means of obtaining
personal jurisdiction and perfecting service of process are not intended
to be exclusive, but are cumulative and in addition to all other means
of obtaining personal jurisdiction and perfecting service of process now
or hereafter provided by the laws of the Commonwealth of Kentucky or by
any other state in an action brought by Bank in such state. Provided,
however, nothing herein shall in any way be deemed to limit the ability
of Bank to serve any writs, process or summons in any other manner
permitted by applicable law or to obtain jurisdiction over Guarantor in
such other jurisdictions and in such manner as may be permitted by
applicable law.
11. The undersigned does hereby agree and acknowledge that the
maximum aggregate liability of Guarantor shall be the sum of Two Million
Five Hundred Thousand and 00/100 Dollars ($2,500,000.00), plus interest
accruing on said amount, plus fees, charges and costs of collecting the
guaranteed indebtedness (including reasonable attorneys' fees).
12. This Guaranty shall terminate on June 30, 2000. Provided,
however, the undersigned acknowledges and agrees that such termination
shall not affect its liability with respect to: (a) obligations created
or incurred prior to such date (which specifically includes the Note),
or (b) extensions or renewals of, interest accruing on, or fees, costs
or expenses incurred with respect to such obligations (which
specifically includes the Note), on or after such date.
13. If any payment made on the Note shall be required to be
repaid or refunded by Bank as a result of any bankruptcy or insolvency
of Borrower or of Guarantor or by virtue of any claim of preference,
invalidity, unenforceability or right of rescission, Guarantor hereby
acknowledges and agrees that Guarantor shall remain liable for the
amount of such payment refunded, to the extent provided herein, as if
such payment had never been made by Borrower or by Guarantor to Bank.
14. This Guaranty shall remain fully enforceable irrespective of
any claim, defense or counterclaim which Borrower may or could assert as
to the Note including, but not limited to, failure of consideration,
breach of warranty, payment, statute of frauds, statute of limitations,
fraud, bankruptcy, and usury, all of which Guarantor hereby waives along
with any standing by Guarantor to assert any said claim, defense or
counterclaim. This Guaranty is in addition to and not in lieu of, nor
does it supercede, any prior Guaranties signed by Guarantor.
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15. Guarantor has, to its satisfaction, independently
investigated: (a) Borrower's credit history; (b) Borrower's payment
history with Bank; (c) Borrower's past, current and projected financial
condition; and (d) the sufficiency of any collateral supporting
Borrower's obligations under the Note. Guarantor represents and
warrants that it has relied exclusively on his own independent
investigation of Borrower for its decision to guarantee the Note.
Guarantor agrees that it has sufficient knowledge of Borrower to make an
informed decision about this Guaranty, and that Bank has no duty or
obligation to disclose any information in its possession or control
about Borrower to Guarantor.
16. In the event that any one or more of the provisions contained
herein shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof and this
Guaranty shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
17. The provisions of this Guaranty shall be binding upon
Guarantor and its, successors, and assigns and shall inure to the
benefit of the holder of the Note, and its successors, endorsees and
assigns.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty to be
effective as of the date and year first above written.
UNIFIED FINANCIAL SERVICES, INC.
BY: /s/ Xxxx X. Xxxx
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TITLE: Executive Vice President
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