Exhibit 99(iii)
UNCONDITIONAL AND CONTINUING GUARANTY
OF PAYMENT AND PERFORMANCE
THIS GUARANTY ("Guaranty") is made as of this ____ day of July, 1997, by
MEDICORE, INC., a Florida corporation (the "Guarantor") in favor of XXXXXXX
BANK, N.A., a national banking association ("Lender").
R E C I T A L S :
A. Lender has agreed to make a revolving credit loan facility available
to Techdyne, Inc., a Florida corporation ("Borrower"), in the aggregate
principal amount at any one time outstanding of $2,500,000 (all loans now or
hereafter made under such facility are collectively called the "Loans").
B. The Loans shall be evidenced by a Revolving Demand Promissory Note of
even date herewith executed by Borrower to the order of Lender (as same may be
amended, modified, extended or renewed from time to time, without the necessity
of notice to or the consent of the Guarantor, the "Note").
C. The Loans are to be made pursuant to, and are secured by, among other
documents, a Loan and Security Agreement dated February 8, 1996 between Borrower
and Xxxxxxx Bank of South Florida, N.A., as amended by a First Amendment to Loan
and Security Agreement of even date herewith between Borrower and Lender (as so
amended and as the same may be amended, modified, extended or renewed from time
to time, without the necessity of notice to or the consent of the Guarantor, the
"Loan Agreement").
D. Lender may from time to time issue and renew banker's acceptances at
the request of the Borrower under or in connection with the Loan Agreement (all
such banker's acceptances, as the same may be amended, modified, extended or
renewed from time to time, without the necessity of notice to or the consent of
the Guarantor, are collectively called the "Banker's Acceptances"). All
agreements and other documents from time to time executed in connection with the
Banker's Acceptances or any of them, as such agreements and other documents may
be amended, modified, extended or renewed from time to time, without the
necessity of notice to or the consent of the Guarantor, are collectively called
the "Acceptance Agreements".
E. The Borrower is a subsidiary of Guarantor, and accordingly, the
Guarantor will benefit from the Loans, the issuance of the Banker's Acceptances
and all transactions relating thereto.
F. Lender would not make the Loans or issue any Banker's Acceptances
solely upon the covenants of the Borrower under the Note, Loan Agreement,
Acceptance Agreements and other loan documents, but requires, as further
security therefor, an unconditional and irrevocable guaranty of payment and
performance respecting the Loans and the Acceptance Agreements from Guarantor.
NOW, THEREFORE, in consideration of the premises, and to induce Lender to
make the Loans and to issue the Banker's Acceptances, and in consideration
thereof, Guarantor guarantees and agrees as follows:
1. Recitations. Each and all of the foregoing recitals are true and
correct and are incorporated herein by reference.
2. Capitalized Terms. All capitalized terms utilized in this Guaranty,
unless specifically
otherwise defined herein, shall have the meanings assigned to such terms in
the Loan Agreement.
3. Guaranty. Guarantor hereby absolutely, irrevocably and
unconditionally guarantees (as primary obligor and not merely as sureties) to
Lender and its successors and assigns the full and prompt payment (whether at
stated maturity, by acceleration, or otherwise) and performance of the
"Obligations" as hereinafter defined. "Obligations" shall mean:
(a) All "Obligations" as such term is defined in the Loan Agreement;
(b) All principal, interest, attorneys' fees, loan fees, liabilities
for costs and expenses and all other indebtedness, obligations and
liabilities of Borrower to Lender at any time created or arising under or
in connection with the Loans, the Banker's Acceptances, the Note, Loan
Agreement, Acceptance Agreements, or any other document now or hereafter
executed in connection with the Loans or the Banker's Acceptances (or any
of them) or as security for the Loans or any of the Banker's Acceptances or
any amendment, extension, renewal, or modification thereto or substitution
therefor (which may be made without notice to or the consent of the
Guarantor). The Loan Agreement, Note, Acceptance Agreements and all other
documents evidencing, securing or otherwise relating to the Loans, the
Banker's Acceptances or any of them, whether now or hereafter existing, as
the same may be amended, modified, extended or renewed from time to time,
without the necessity of notice to or the consent of the Guarantor, are
sometimes collectively called the "Loan Documents";
(c) All agreements, covenants, indemnities, terms, conditions, and
other obligations to be performed by, or on behalf of, Borrower under the
Loan Documents; and
(d) All costs, expenses and fees, including but not limited to court
costs and attorneys' fees, arising in connection with, or as a consequence
of the non-payment, non-performance or non-observance of all amounts,
indebtedness, obligations and liabilities of Borrower to Lender described
in items (a), (b) and (c) of this Section 3.
Upon payment and performance in full of the Obligations and the termination of
any further liability of Lender under the Loan Documents and the Banker's
Acceptances, this Guaranty shall terminate, subject, however, to reinstatement
pursuant to Section 10 below if any payment made with respect to the Obligations
is rescinded or must otherwise be restored or returned by Lender.
4. Guaranty of Payment. This is an irrevocable, absolute, continuing
guaranty of payment (inter alia) and not a guaranty of collection and is in
no way conditioned or contingent upon any attempt to collect from or enforce
performance or compliance by the Borrower or upon any other event,
contingency or circumstance whatsoever. If for any reason the Borrower shall
fail or be unable duly, punctually and fully to pay and perform the
Obligations as and when the same shall become due, the Guarantor, without
demand, presentment, protest or notice of any kind, will forthwith pay or
perform the Obligations in accordance with the terms of such Loan Documents.
All such payments shall be made in lawful money of the United States and at
the place specified in the Note, with interest thereon until paid at the rate
set forth in the Loan Documents. The Guarantor, promptly after demand, will
pay to the Lender the reasonable costs and expenses of collecting such
amounts or otherwise enforcing this Guaranty, including, without limitation,
the reasonable fees and expenses of counsel (before trial, at trial, at all
appellate levels, in bankruptcy, and otherwise). Guarantor waives any right
to require that any action be brought against Borrower or any other person or
to require that resort be made to any security and Lender may, at its option,
proceed against the Guarantor in the first instance
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to collect any monies the payment of which is guaranteed hereby, without
first proceeding against Borrower or any other person and without first
resorting to any security held by it as collateral or to any other remedies.
The liability of the Guarantor hereunder shall be in no way affected or
impaired by an acceptance by Lender of any security for, or other guarantors
upon, any indebtedness, liability or obligation of Borrower to the Lender, or
by any failure, delay, neglect or omission by Lender to realize upon or
protect any such indebtedness, liability or obligation or any notes or other
instruments evidencing same or any collateral or security therefor.
5. Obligations of Guarantor Unconditional. The obligations of the
Guarantor under this Guaranty shall be primary, absolute and unconditional
obligations of the Guarantor, shall not be subject to any counterclaim, set-off,
deduction, diminution, abatement, recoupment, suspension, deferment, reduction
or defense based upon any claim the Guarantor or any other person may have
against the Borrower, the Lender or any other person, and shall remain in full
force and effect without regard to, and shall not be released, discharged or in
any way affected by, any circumstance, contingency or condition whatsoever
(whether or not the Guarantor, the Borrower or the Lender shall have any
knowledge or notice thereof and whether occurring prior to or after the date of
this Guaranty), including, without limitation:
(a) Any termination (other than by payment in full, subject to the
provisions of Section 10 below), amendment or modification of or deletion
from or addition or supplement to or other change, modification, extension,
substitution or renewal of any of the Loan Documents or any other
instrument or agreement applicable to any of the parties to any of the Loan
Documents;
(b) Any furnishing or acceptance of any security, or any release of
any security, for the Obligations, or the failure of any security or the
failure of any person to perfect any interest in any collateral;
(c) Any failure, omission or delay on the part of the Borrower to
conform or comply with any term of any of the Loan Documents or any other
instrument or agreement referred to in subsection (a) above, including,
without limitation, failure to give notice to the Guarantor of the
occurrence of a default under any Loan Document;
(d) Any waiver of the payment, performance or observance of any of
the obligations, conditions, covenants or agreements contained in any Loan
Document or any other waiver, consent, extension, indulgence, compromise,
settlement, release or other action or inaction under or in respect of any
of the Loan Documents or any other instrument or agreement referred to in
subsection (a) above, or any obligation or liability of the Borrower, or
any exercise or non-exercise of any right, remedy, power or privilege under
or in respect of any such instrument or agreement or any such obligation or
liability;
(e) Any failure, omission or delay on the part of the Lender to
enforce, assert or exercise any right, power or remedy conferred on it in
this Guaranty, or any such failure, omission or delay on the part of the
Lender in connection with any Loan Document or any other action or inaction
on the part of the Lender;
(f) Any voluntary or involuntary bankruptcy, insolvency,
reorganization, arrangement, readjustment, assignment for the benefit of
creditors, composition, receivership, conservatorship, custodianship,
liquidation, marshalling of assets and liabilities or similar proceedings
with respect to the Borrower, the Guarantor or any other person or any of
their
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respective properties or creditors, or any action taken by any trustee or
receiver or by any court in any such proceeding;
(g) Any limitation on the liability or obligations of the Borrower or
any other person under any of the Loan Documents or any discharge,
termination or cancellation (other than by payment in full), frustration,
irregularity, invalidity or unenforceability, in whole or in part, of any
of the Loan Documents or any other agreement or instrument referred to in
subsection (a) above or any term hereof;
(h) Any merger or consolidation of the Borrower or the Guarantor into
or with any other corporation, or any sale, lease or transfer or any of the
assets of the Borrower or the Guarantor to any other person;
(i) Any change in the relationship between the Borrower and the
Guarantor or any termination of such relationship;
(j) Any law, regulation, or decree now or hereafter in effect in any
jurisdiction which might in any manner affect any of the Obligations or the
rights of Lender with respect thereto;
(k) Any release or discharge, by operation of law, of the Guarantor
from the performance or observance of any particular obligation, covenant
or agreement contained in this Guaranty;
(l) Any counterclaim, defense, reduction or set-off the Borrower may
have with respect to any of the Obligations; or
(m) Any other occurrence, circumstance, happening or event
whatsoever, whether similar or dissimilar to the foregoing, whether
foreseen or unforeseen, and any other circumstance which might otherwise
constitute a legal or equitable defense or discharge of the liabilities of
a guarantor or surety or which might otherwise limit recourse against the
Guarantor.
6. Full Recourse Obligations. The obligations and liabilities of the
Guarantor set forth herein constitute the full recourse obligations of the
Guarantor enforceable against the Guarantor to the full extent of all its assets
and properties.
7. Waiver. The Guarantor unconditionally waives, to the fullest extent
permitted by applicable law:
(a) Notice of acceptance of this Guaranty by Lender, or of the
creation, renewal or accrual of any liability of Borrower, present or
future, or of the reliance of Lender upon this Guaranty (it being
understood that every indebtedness, liability and obligation of Borrower to
Lender shall conclusively be presumed to have been created, contracted or
incurred in reliance upon this Guaranty);
(b) Notice of any of the matters referred to in Section 5;
(c) Notice to the Guarantor of the incurrence of any of the
Obligations, notice to the Guarantor or the Borrower of any breach or
default by the Borrower with respect to any of the Obligations, notice of
acceleration or intent to accelerate, or any other notice that may be
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required, by statute, rule of law or otherwise, to preserve any rights of
the Lender against the Borrower or the Guarantor;
(d) Presentment to or demand of payment from the Borrower, the
Guarantor or any other person with respect to the Note or protest for
nonpayment or dishonor;
(e) Any right to require Lender to enforce, assert or exercise any
right, power, privilege or remedy conferred in any Loan Document or
otherwise and notice of Lender's exercise of any such right, privilege or
remedy;
(f) Any requirement of diligence on the part of the Lender;
(g) Any requirement to exhaust any remedies or to mitigate the
damages resulting from any default under any Loan Document;
(h) Defense of the statute of limitations in any action hereunder or
for the collection of any indebtedness or the performance of any
Obligations hereby guaranteed; and any defense arising by virtue of (i) the
lack of authority of the Borrower or any other person, or (ii) the failure
of Lender to file or enforce a claim of any kind;
(i) Any notice of sale, transfer or other disposition of any right,
title to or interest in the Loan Documents by the Lender;
(j) Any duty on the part of Lender to disclose to Guarantor any
facts which Lender may now or hereafter know about Borrower, regardless of
whether Lender has reason to believe that any such facts materially
increase the risk beyond that which the Guarantor intends to assume, has
reason to believe that such facts are unknown to Guarantor or has a
reasonable opportunity to communicate such facts to Guarantor, it being
understood and agreed the Guarantor is fully responsible for being and
keeping informed of the financial condition of Borrower and of all
circumstances bearing on the risk of non-payment of all Obligations hereby
guaranteed; and
(k) Any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge, release or defense of a
guarantor or surety or which might otherwise limit recourse against the
Guarantor.
8. Waiver of Subrogation. The Guarantor hereby irrevocably and forever
waives any claim, remedy or right which the Guarantor may now have or hereafter
acquire against the Borrower that arises hereunder and/or as a result of the
payment or performance by the Guarantor under this Guaranty, including, without
limitation, any claim, remedy or right of subrogation, reimbursement,
exoneration, indemnification, or participation in any claim, remedy or right of
Lender against the Borrower or any security which Lender now has or hereafter
acquires, whether or not such claim, remedy or right arises in equity, under
contract, by statute, under common law or otherwise.
9. Consent to Extensions, Renewals and Releases. Guarantor hereby agrees
that Lender may, from time to time, before or after any default by Borrower,
with or without further notice to or assent from the Guarantor, without in any
manner affecting the liability of Guarantor, and upon such terms and conditions
as it may deem advisable: (a) extend in whole or in part (by renewal or
otherwise), modify, accelerate, change or release any indebtedness, liability or
obligation of Borrower or of any other person liable for any indebtedness,
liability or obligation of Borrower, or waive any
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default with respect thereto; (b) sell, release, surrender, modify, impair,
exchange, substitute or (if a chose or choses in action) extend the duration
or the time for performance or payment of any and all property, of any nature
and from whomsoever received, held by Lender as security for the payment or
performance of any indebtedness, liability or obligation of Borrower to
Lender; and (c) settle, adjust or compromise any claim of Lender against
Borrower or any other person liable for any indebtedness, liability or
obligation of Borrower. Guarantor hereby ratifies and confirms any such
extension, renewal, change, release, waiver, surrender, exchange,
modification, impairment, substitution, settlement, adjustment or compromise
and agree that the same shall be binding upon Guarantor, and Guarantor hereby
expressly waives any and all defenses, counterclaims or offsets which
Guarantor might or could have by reason thereof, it being understood that
Guarantor shall at all times be bound by this Guaranty and remain fully
liable to Lender hereunder.
10. Effect of Bankruptcy Proceedings, etc. This Guaranty shall continue
to be effective or be automatically reinstated, as the case may be, if at any
time payment, in whole or in part, of any of the sums due to the Lender pursuant
to the terms of any Loan Document is rescinded or must otherwise be restored or
returned by the Lender upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Borrower or any other person, or upon or as a result of
the appointment of a custodian, receiver, trustee or other officer with similar
powers with respect to the Borrower or other person or any substantial part of
its property, or otherwise, all as though such payment had not been made. If an
event permitting the acceleration of the maturity of the principal amount of the
Note or any of the obligations of Borrower under the Acceptance Agreements shall
at any time have occurred and be continuing, and such acceleration shall at such
time be prevented by reason of the pendency against the Borrower or any other
person of a case or proceeding under a bankruptcy or insolvency law, the
Guarantor agrees that, for purposes of this Guaranty and its obligations
hereunder, the maturity of the principal amount of the Note or such other
obligations shall be deemed to have been accelerated with the same effect as if
the Lender had accelerated the same in accordance with the terms of the Loan
Documents and the Guarantor shall forthwith pay such principal amount, any
interest thereon and any other amounts guaranteed hereunder, without further
notice or demand.
11. Remedies. In the event that Guarantor shall fail to perform promptly
as herein provided, Lender shall have the right (from time to time, without
first requiring performance on the part of the Borrower) to require payment and
performance by the Guarantor of any Obligations, by action at law or in equity
or both, and further to collect in any such action reasonable compensation for
all loss, costs, damage, injury and expense sustained or incurred by Lender as a
consequence of such breach.
12. Interest and Expenses of Enforcement. Any sum required to be paid by
Guarantor to Lender pursuant to the terms hereof shall bear interest at the
non-default rate set forth in the Loan Documents from the due date thereof until
10 days after demand from Lender and thereafter all such sums shall bear
interest at the Post-Default Rate (as such term is defined in the Note) until
paid. Guarantor agrees to pay any and all costs and expenses incurred by
Lender in enforcing any rights or remedies under this Guaranty, including,
without limitation, all reasonable fees and expenses of the Lender's attorneys,
including fees and expenses of any appeals, regardless of whether any specific
legal proceedings should be commenced or initiated.
13. Consideration. Guarantor acknowledges that its undertakings hereunder
are given in consideration of the Lender making the Loans to Borrower and
issuing the Banker's Acceptances at the Borrower's request and that Lender would
not make the Loans to Borrower or issue any Banker's Acceptance were it not for
the execution and delivery of this Guaranty.
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14. No Waiver. No failure on the part of Lender to pursue any remedy
hereunder or under the Loan Documents shall constitute a waiver on its part of
the right to pursue said remedy on the basis of the same or a subsequent breach.
No extension, substitution, modification, amendment or renewal of the Loan
Documents shall serve to waive the provisions hereof or discharge Guarantor from
any obligation or liability herein contained in whole or in part, except to the
extent expressly provided by Lender in writing.
15. Guaranty Independent. Guarantor agrees that all of the obligations,
agreements and liabilities hereunder are joint and several and are independent
of and in addition to the undertakings of the Borrower pursuant to the Loan
Documents and any other obligations of Guarantor to Lender. A separate action
may be brought to enforce the provisions hereof whether or not Borrower is a
party in any such action. Borrower and Guarantor may be sued together, or any
of them may be sued separately without first or contemporaneously suing the
other.
16. Representations and Warranties. The Guarantor hereby represents and
warrants the following:
(a) Financial Statements.
(i) All financial statements and data that have been given
to Lender by Guarantor with respect to Guarantor (A) are complete and
correct in all material respects as of the date given; and
(B) accurately present the financial condition of Guarantor on each
date as of which, and the results of such Guarantor's operations for
the periods for which, the same have been furnished.
(ii) All financial statements, balance statements, and any
notes thereto with respect to Guarantor furnished to Lender disclose
all material liabilities of Guarantor, fixed and contingent, as of
their respective dates.
(iii) There has been no adverse change in the financial
condition or operations of Guarantor since the date of the most recent
financial statement given to Lender with respect to Guarantor other
than changes in the ordinary course of business, none of which changes
have been materially adverse individually or in the aggregate.
(b) Other Arrangements. Guarantor is not in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions set forth in any agreement or instrument to which Guarantor is a
party, a default which would or may materially and adversely affect Guarantor's
ability to fulfill its obligations under this Guaranty.
(c) Other Information. All other reports, papers and written data
and information given to Lender by Guarantor with respect to Guarantor are
accurate and correct in all material respects and complete insofar as
completeness may be necessary to give Lender a true and accurate knowledge of
the subject matter.
(d) Litigation. There is not now pending against or affecting
Guarantor, nor to the knowledge of Guarantor is there threatened, any action,
suit or proceeding at law or in equity or by or before any administrative agency
or arbitrator which, if decided adversely to the Guarantor, would
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individually or collectively have a material adverse effect on the Guarantor.
(e) Taxes. Guarantor has filed all federal, state, provincial,
county, municipal and other income tax returns required to have been filed by
Guarantor and has paid all taxes that have become due pursuant to such returns
or pursuant to any assessments received by Guarantor, and Guarantor does not
know of any basis for any material additional assessment against it in respect
of such taxes.
(g) Existence and Good Standing. Guarantor is a validly existing
Florida corporation in good standing in the State of Florida and in all other
jurisdictions where the nature of its business requires that it qualify as a
foreign corporation.
Guarantor knows of no facts which would, in any manner, indicate that the
statements and the implications therefrom set forth in the representations and
warranties contained in this Section 16 are not true and complete.
17. Affirmative Covenants. Guarantor covenants and agrees that, so long
as this Guaranty shall remain in effect, each Guarantor will, unless the Lender
shall otherwise consent in writing:
(a) Financial Statements. Furnish or cause to be furnished to Lender
(i) the financial statements and other information relating to the Guarantor
required to be delivered pursuant to the Loan Documents; and (ii) such other
information as Lender may from time to time reasonably request.
(b) Taxes Affecting the Guarantor. File all United States, state,
provincial, county, municipal and other income tax returns required to be filed
by them and pay before the same become delinquent all taxes that become due
pursuant to such returns or pursuant to any assessments received by the
Guarantor.
(c) Compliance with Laws. Promptly and faithfully comply in all
material respects with all laws, ordinances, rules, regulations and
requirements, both present and future, of every duly constituted governmental
authority or agency having jurisdiction that may be applicable to them.
(d) Books and Records. Maintain full and complete books of account
and other records, in form reasonably satisfactory to Lender, and furnish to
Lender such information concerning the financial condition of Guarantor as
Lender shall reasonably request.
(e) Notice. Give prompt written notice to Lender (i) of any action
or proceeding instituted by or against the Guarantor or as to which Guarantor
shall have received written notice in any court or by any commission or other
regulatory body, or of any such proceedings threatened against the Guarantor
which has a reasonable likelihood of resulting in a judgment or judgments in
excess of $200,000 and (ii) of any other action, event or condition of any
nature known to Guarantor or of which it should have knowledge which constitutes
a default under this Guaranty or any of the Loan Documents or which, with notice
or lapse of time or both, would constitute such a default, or a default of the
Borrower or any other guarantor under any other contract, instrument or
agreement to which any of them is a party or by which any of them or any of
their respective properties or assets may be bound or to which any may be
subject, which default might have a material adverse effect upon the business,
operations, properties, assets or financial condition of the Guarantor.
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18. Amendments, Etc. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by the Guarantor therefrom shall in any
event be effective unless the same shall be in writing and signed by Lender, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
19. Notices, Demand and Other Instruments. All notices, offers,
acceptances, rejections, consents, requests and other communications to the
Guarantor hereunder shall be in writing and shall be deemed to have been given
(i) when delivered in person, or (ii) when sent by certified mail, return
receipt requested, or (iii) when sent by telecopier, telex or other telegraphic
means (with receipt confirmed) or (iv) on receipt after being sent by express
mail or delivery service guaranteeing overnight delivery, to the following
address:
Medicore, Inc.
0000 X. 00xx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
with a copy to:
Xxxxxxxx X. Xxxxx, Esq.
000 Xxxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxxx Xxxxxxx, XX 00000
or to such other address as the Guarantor shall furnish by notice to the Lender
in writing. Notices need not be given or made by an officer of either party but
shall be deemed sufficiently given if made by the counsel of such party, and all
of such notices shall be deemed in compliance hereof provided only they be given
in the manner specified herein.
20. Breach of Warranty. Guarantor shall be deemed to be in default of
this Guaranty if any representation or warranty made by Guarantor hereunder,
under any statement, instrument or certificate delivered by Guarantor to Lender
pursuant to the provisions hereof, or under any other agreement between
Guarantor and Lender made in connection with the Loans or any Banker's
Acceptance shall be incapable of being given by Guarantor, or, if given, shall
be determined by Lender to have been false or misleading in any material respect
as of the date on which the same was made, or shall be breached, and in such
case, Lender shall be entitled to exercise the remedies described in Section 11
hereof.
21. Separate Property. Guarantor shall be fully liable under this
Guaranty, and Guarantor does further agree that any and all of the property of
the Guarantor shall be subject to execution for any judgment or decree on or
enforcing this Guaranty by a court of competent jurisdiction against Guarantor.
Guarantor agrees that any property held by Guarantor as tenants-in-common or any
other form of joint ownership shall also be subject to enforcement of this
Guaranty, and the Guarantor hereby waives any exemption under the constitution
and laws of each jurisdiction where any such separate property or other property
is located.
22. Withholding Laws. If under any applicable law or regulation or the
interpretation thereof by any governmental authority charged with the
administration thereof, Guarantor shall be required to make any withholding or
deduction from any payment (whether of interest or otherwise) to be made by
Guarantor to Lender hereunder for or in respect of any present or future taxes,
levies, imposts, duties, charges or fees of any nature, the amount due to Lender
from Guarantor in respect of
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such payment shall be increased to the extent necessary to insure that after
making such withholding or deduction, and any withholdings or deductions
required to be made in respect of any such increase, Lender shall receive an
amount equal to the amount which Lender would have received had no such
withholding or deduction been required to be made. In the event of any such
withholding or deduction, Guarantor shall deliver to Lender, forthwith after
receipt by Guarantor, the official receipt or other official documentation
evidencing the payment of the amount so withheld or deducted.
23. Loan Documents. Guarantor acknowledges that its is fully familiar
with the terms, provisions and conditions of the Loan Documents and that its
execution of this Guaranty shall also serve as its consent to and approval of
the terms and provisions thereof.
24. Miscellaneous.
(a) This Guaranty shall be governed by and construed in accordance
with the laws of the State of Florida.
(b) Time is of the essence hereof with respect to all obligations
hereunder.
(c) The obligations and promises set forth herein shall be joint and
several undertakings and liabilities of each party executing this Guaranty, and
Lender may proceed hereunder against any one or more of said parties without
waiving its right to proceed against any of the others.
(d) Guarantor agrees to pay any present or future stamp or
documentary taxes, or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to this Guaranty.
(e) If any term, provision, covenant or condition hereof or any
application thereof should be held by a court of competent jurisdiction to be
invalid, void or unenforceable, all terms, provisions, covenants and conditions
hereof, and all applications thereof not held invalid, void or unenforceable
shall continue in full force and effect and shall in no way be affected,
impaired or invalidated thereby.
(f) This Guaranty may be executed in any number of counterparts, each
of which shall be deemed an original hereof and all of which together shall
constitute but one and the same instrument.
(g) The use of the words "herein", "hereof", "hereunder" and any
other words of similar import refer to this Guaranty as a whole and not to any
particular paragraph, subparagraph or other subdivision of this Guaranty unless
specifically noted otherwise in this Guaranty. The use of the word "person" in
this Guaranty shall refer to and include any natural person, entity,
corporation, partnership, association, firm, company, joint venture and
governmental authority.
(h) The headings of the paragraphs of this Guaranty are for
convenience of reference only, and are not to be considered a part hereof, and
shall not limit or expand or otherwise affect any of the terms hereof.
(i) GUARANTOR AND LENDER (BY ITS ACCEPTANCE HEREOF) DO HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS GUARANTY, OR ANY COURSE OF
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CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PERSON IN CONNECTION WITH THE LOANS, THE BANKER'S ACCEPTANCES OR THE
LOAN DOCUMENTS. THIS WAIVER BY GUARANTOR OF ITS RIGHT TO A JURY TRIAL IS A
MATERIAL INDUCEMENT FOR LENDER TO MAKE THE LOANS AND ISSUE THE BANKER'S
ACCEPTANCES.
(j) In the event Lender seeks to enforce this Guarantor by legal
action, Guarantor hereby waives the right to be sued in the city or county of
Guarantor's principal place of business. The Guarantor does hereby irrevocably
and unconditionally submit to the non-exclusive jurisdiction of any United
States Federal or Florida state court sitting in Dade County, Florida, in any
action or proceeding arising out of or connected (directly or indirectly) to
this Guaranty. Guarantor agrees that any final judgment in any such action
shall be conclusive and may be enforced in any other jurisdiction by suit on the
judgment or in any other manner provided by law. Nothing in this Section shall
affect the right of Lender to bring any action or proceeding against Guarantor
or its property in the courts of any other jurisdiction. The foregoing consent,
in advance, to the jurisdiction of the above-mentioned courts is a material
inducement for Lender to make the Loans and issue the Banker's Acceptances. The
Guarantor agrees and consents to the service of process upon Guarantor in
connection with any suit, action or proceeding arising out of or related to
(directly or indirectly) this Guaranty by certified mail, return receipt
requested, to the address of the Guarantor provided in Section 19 above;
provided, however, that the foregoing shall not affect the right of Lender to
effect the service of process in any other manner provided by law.
(k) In this Guaranty, wherever the context so requires, the neuter
gender includes the masculine and/or feminine gender, the singular numbers
include the plural, and the plural numbers include the singular.
(l) This Guaranty creates a continuing obligation and the obligation
of Guarantor hereunder shall be binding upon Guarantor and its successors,
heirs, representatives and assigns and shall inure to the benefit of and be
enforceable by Lender and its successors and assigns.
IN WITNESS WHEREOF, the Guarantor has duly executed this Guaranty as of the
day and year first above written.
Signed, sealed and delivered MEDICORE, INC., a Florida
in the presence of: corporation
By____________________________
_________________________ Name:
Title:
_________________________
)
)ss.:
)
The foregoing instrument was acknowledged before me this ____ day of July,
1997, by ___________________, the ______________________ of MEDICORE, INC., a
Florida corporation, on behalf of such corporation. Such individual:
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_____ is personally known to me or
_____ produced __________________ as identification.
____________________________
Notary Public
Printed Name of Notary:
____________________________
My Commission Expires:
[Notarial Seal]
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