GUARANTY
(Continuing Debt - Unlimited)
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DATE AND PARTIES. The date of this Guaranty is _______. The parties and their
addresses are:
LENDER:
FIRST FINANCIAL BANK
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
BORROWER:
MIDWEST CABLE COMMUNICATIONS OF ARKANSAS, INC.
A Corporation
0000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
GUARANTOR:
XXXXXX X. XXXXXXX
0000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
1. DEFINITIONS. As used in this Guaranty, the terms have the following meanings:
A. Pronouns. The pronouns "I", "me", and "my" refer to all persons or
entities signing this Guaranty, individually and together with their heirs,
successors and assigns. "You" and "your" refer to the Lender, with its
participants or syndicators, successors and assigns, or any person or company
that acquires an interest in the Debt.
B. Note. "Note" refers to the document that evidences the Borrower's
indebtedness and any extensions, renewals, modifications and substitutions of
the Note.
C. Debt. "Debt" refers to debts, liabilities and obligations of the
Borrower (including, but not limited to, amounts agreed to be paid under the
terms of any notes or agreements securing the payment of any debt, loan,
liability or obligation, overdrafts, letters of credit, guaranties, advances for
taxes, insurance, repairs and storage, and all extensions, renewals,
refinancings and modifications of these debts) whether now existing or created
or incurred in the future, due or to become due, or absolute or contingent,
including obligations and duties arising from the terms of all documents
prepared or submitted for the transaction such as applications, security
agreements, disclosures, the Note and this Guaranty. Debt does not include any
obligations incurred by the Borrower's own assets and income without the
addition of a guaranty or for which, although you require a guaranty, the
Borrower chooses someone other than me to guaranty the obligation.
D. Property. "Property" means any property, real, personal or
intangible, that secures performance of the obligations of the Note, Debt or
this Guaranty.
2. AGREEMENT TO GUARANTY. For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and to induce you, at your option,
to make loans or engage in any other transactions with the Borrower from time to
time, I absolutely and unconditionally promise to pay and guarantee the full and
prompt payment of the following Debt when due (whether at maturity or upon
acceleration), including without limitation, all principal, accrued interest,
attorneys' fees and collection costs, when allowed by law, that may become due
from the Borrower to you in collecting the Debt and in enforcing this Guaranty
and all other agreements with respect to the Borrower.
3. SPECIFIC AND FUTURE DEBT GUARANTY. I absolutely and unconditionally agree to
all terms of and guarantee to you the payment and performance of each and every
Debt, of every type, purpose and description that the Borrower either
individually, among all or a portion of themselves, or with others, may now or
at any time in the future owe you, including, but not limited to the following
described Debt(s): Promissory note #872000985 for Midwest Cable Communications
of Arkansas, Inc. in the original principal amount of $25,401.00 dated 11/04/99.
You may, without notice, apply this Guaranty to such Debt of the Borrower as you
may select from time to time.
4. EXTENSIONS. I consent to all renewals, extensions, modifications and
substitutions of the Debt which may be made by you upon such terms and
conditions as you may see fit from time to time without further notice to me and
without limitation as to the number of renewals, extensions, modifications or
substitutions.
5. PRIMARY LIABILITY. I am primarily liable under this Guaranty, regardless of
whether or not you pursue any of your remedies against the Borrower, against any
other maker, surety, guarantor or endorser of the Debt or against any property.
You may xxx me alone, or anyone else who is obligated on this Guaranty, or any
number of us together, to collect the Debt. My liability is not conditioned on
the signing of this Guaranty by any other person and further is not subject to
any condition not expressly set forth in this Guaranty or any instrument
executed in connection with the Debt. My obligation to pay according to the
terms of this Guaranty shall not be affected by the illegality, invalidity or
unenforceability of any notes or agreements evidencing the Debt, the violation
of any applicable usury laws, forgery or any other circumstances which make the
indebtedness unenforceable against the Borrower. I will remain obligated to pay
the Debt, including the Borrower, has such obligation discharged in bankruptcy,
foreclosure or otherwise discharged by law.
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6. BANKRUPTCY. If a bankruptcy petition should at any time be filed by or
against the Borrower, the maturity of the Debt, so far as my liability is
concerned, shall be accelerated and the Debt shall be immediately payable by me.
I acknowledge and agree that this Guaranty and the Debt secured hereby, will
remain in full force and effect at all times, notwithstanding any action or
undertakings by, or against you or against any Property, in connection with any
obligation in any proceeding in the United States Bankruptcy Courts. Such action
includes, without limitation, valuation of Property, election of remedies or
imposition of secured or unsecured claim status upon claims by you, pursuant to
the United States Bankruptcy Code, as amended. In the event that any payment of
principal or interest received and paid by any other guarantor, borrower,
surety, endorser or co-maker is deemed, by final order of a court of competent
jurisdiction, to have been a voidable preference under the bankruptcy or
insolvency laws of the United States or otherwise, then my obligation will
remain as an obligation to you and will not be considered as having been
extinguished.
7. REVOCATION. I agree that this is an absolute and unconditional Guaranty. I
agree that this Guaranty will remain binding on me, whether or not there are any
debts outstanding, until you have actually received written notice of my
revocation or written notice of my death or incompetence. Notice of revocation
or notice of my death or incompetence will not affect my obligations under this
Guaranty with respect to any Debts incurred by or for which you have made a
commitment to Borrower before you actually receive such notice, and all
renewals, extensions, refinancings and modifications of such Debts. I agree that
if any other person signing this Guaranty provides a notice of revocation to
you, I will still be obligated under this Guaranty until I provide such a notice
of revocation to you. If any other person signing this Guaranty dies or is
declared incompetent, such fact will not affect my obligations under this
Guaranty.
8. PROPERTY. I agree that any Property may be assigned, exchanged, released in
whole or in part or substituted without notice to me and without defeating,
discharging or diminishing my liability. My obligation is absolute and your
failure to perfect any security interest or any act or omission by you which
impairs the Property will not relieve me or my liability under this Guaranty.
You are under no duty to preserve or protect any Property until you are in
actual or constructive possession. For purposes of this paragraph, you will only
be in "actual" possession when you have physical, immediate and exclusive
control over the Property and have accepted such control in writing. Further,
you will only be deemed to be in "constructive" possession when you have both
the power and intent to exercise control over the Property.
9. DEFAULT. I will be in default if the Borrower defaults on any underlying
obligation on the Debt or if any one or more of the following occur.
A. Payments. I fail to make a payment in full when due.
B. Insolvency. I make an assignment for the benefit of creditors or
become insolvent, either because my liabilities exceed my assets or
I am unable to pay my debts as they become due.
C. Death or Incompetence. I die or am declared incompetent.
D. Failure of Condition or Term. I fail to pay, or perform any
condition or to keep any promise or covenant on this or any debt or
agreement I have with you.
E. Misrepresentation. I make any verbal or written statement or
provide any financial information that is untrue, inaccurate, or
conceals a material fact at the time it is made or provided.
F. Judgment. I fail to pay or discharge any judgment against me for
the payment of money, unless, within 10 days of its entry, the
judgment is satisfied or a stay of enforcement is granted pending
an appeal.
G. Forfeiture. The Property is used in a manner or for a purpose which
threatens confiscation by a legal authority.
H. Name Change. I change my name or assume an additional name without
notifying you before I making the change.
I. Property Transfer. I transfer all or a substantial part of my
money or property.
J. Property Loss. The Property is damaged, destroyed or stolen.
K. Additional Security or Guaranty. I fail to provide any additional
security or guaranty that you may require.
L. Insurance. I fail to keep the Property insured, if required.
M. Other Instruments. A default occurs under the terms of any
instrument evidencing or pertaining to the Debt.
N. Insecurity. Anything else happens that causes you to reasonably
believe that you will have difficulty collecting the amount I owe
you or significantly impairs the value of the Property.
10. WAIVERS AND CONSENT. To the extent not prohibited by law, I waive protest,
presentment for payment, demand, notice of acceleration, notice of intent to
accelerate and notice to dishonor.
A. Additional Waivers. In addition, to the extent permitted by law, I
consent to certain actions you may take and generally waive defenses that may be
available based on these actions or based on the status of a party to the debt
or this Guaranty.
(1) You may renew or extend payments on the Debt, regardless of
the number of such renewals or extensions.
(2) You may release any Borrower, endorser, guarantor, surety,
accommodation maker or any other co-signer.
(3) You may release, substitute or impair any Property securing
the Debt.
(4) You, or any institution participating in the Debt, may invoke
your right to set-off.
(5) You may enter into any sales, repurchases or participations of
the Debt to any person in any amounts and I waive notice of
such sales, repurchases or participations.
(6) I agree that the Borrower is authorized to modify the terms of
the Debt or any instrument securing, guarantying or relating
to the Debt.
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(7) You may undertake a valuation of any Property in connection
with any proceedings under the United States Bankruptcy Code
concerning the Borrower or me, regardless of any such
valuation, or actual amounts received by you arising from the
sale of such Property.
(8) I agree to consent to any waiver granted the Borrower, and
agree that any delay or lack of diligence in the enforcement
of the Debt, or any failure to file a claim or otherwise
protect any of the Debt, in no way affects or impairs my
liability.
(9) I agree to waive reliance on any anti-deficiency statutes,
through subrogation or otherwise, and such statutes in no way
affect or impair my liability. In addition, I waive any right
of subrogation, contribution, reimbursement, indemnification,
exoneration and any other right I hay have to enforce any
remedy which you now have or in the future may have against
the Borrower or another guarantor or as to any Property.
Any Guarantor who is an "insider," as contemplated by the
United States Bankruptcy Code, 11 U.S.C. 101, as amended,
makes these waivers permanent. (An insider includes, among
others, a director, officer, partner or other person in
control of the Borrower, a person or entity that is a
co-partner with the Borrower, an entity in which the Borrower
is a general partner, director, officer or other person in
control or a close relative of any of these other persons.)
Any Guarantor who is not an insider makes these waivers until
all Debt is fully repaid.
B. No Waiver By Lender. Your course of dealing, or your forbearance
from, or delay in, the exercise of any of your rights, remedies, privileges or
right to insist upon my strict performance of any provisions contained in the
Debt Instruments shall not be construed as a waiver by you, unless any such
waiver is in writing and is signed by you.
C. Waiver of Claims. I waive all claims for loss or damage caused by
your acts or omissions where you acted reasonably and in good faith.
11. REMEDIES. After the Borrower or I default, and after you give any legally
required notice and opportunity to cure the default, you may at your option do
any one or more of the following.
A. Acceleration. You may make all or any part of the amount owing by
the terms of this Guaranty immediately due.
B. Additional Security. You may demand security, additional security or
additional parties to be obligated to pay the Debt.
C. Sources. You may use any and all remedies you have under state or
federal law or in any instrument securing the Debt.
D. Insurance benefits. You may make a claim for any and all insurance
benefits or refunds that may be available on default.
E. Payments Made on the Borrower's Behalf. Amounts advanced on the
Borrower's behalf will be immediately due and may be added to the balance owing
under the Debt.
F. Attachment. You may attach or garnish my wages or earnings.
G. Set-Off. You may use the right of set-off. This means you may
set-off any amount due and payable under the terms of this Guaranty against any
right I have to receive money from you. My right to receive money from you
includes any deposit or share account balance I have with you; any money owed to
me on an item presented to you or in your possession for collection or exchange;
any repurchase agreement or other non-deposit obligation. "Any amount due and
payable under the terms of this Guaranty" means the total amount to which you
are entitled to demand payment under the terms of this Guaranty at the time you
set-off.
Subject to any other written contract, if my right to receive money from you is
also owned by someone who has not agreed to pay the Debt, your right to set-off
will be limited to my proportionate interest in the obligation. In the absence
of reasonable proof of net contributions, my proportionate interest equals the
amount of such obligation divided equally by all parties having present rights
to receive such money.
Your right to set-off does not apply to an account or other obligation where my
rights arise only in a representative capacity. It also does not apply to any
Individual Retirement Account or other tax-deferred retirement account.
You will not be liable for the dishonor of any check or share draft when the
dishonor occurs because you set-off against any of my accounts. I agree to hold
you harmless from any such claims arising as a result of your exercise of your
right of set-off.
H. Waiver. Except as otherwise required by law, by choosing any one or
more of these remedies you do not give up your right to use any other remedy.
You do not waive a default if you choose not to use a remedy. By electing not to
use any remedy, you do not waive your right to later consider the event a
default and to use any remedies if the default continues or occurs again.
12. COLLECTION EXPENSES AND ATTORNEYS' FEES. On or after Default, to the extent
permitted by law, I agree to pay all expenses of collection, enforcement or
protection of your rights and remedies under this Guaranty or any instrument
executed in connection with the creation of any Debt guaranteed by this
Guaranty. All fees and expenses will be secured by the Property I have granted
to you, if any. To the extent permitted by the United States Bankruptcy Code, I
agree to pay the reasonable attorneys' fees you incur to collect the Debt
guaranteed by this Guaranty as awarded by any court exercising jurisdiction
under the Bankruptcy Code.
13. WARRANTIES AND REPRESENTATIONS. I have the right and authority to enter into
this Guaranty. The execution and delivery of this Guaranty will not violate any
agreement governing me or to which I am a party.
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In addition, I represent and warrant that this Guaranty was entered into at the
request of the Borrower, and that I am satisfied regarding the Borrower's
financial condition and existing indebtedness, authority to borrow and the use
and intended use of all Debt proceeds. I further represent and warrant that I
have not relied on any representations or omissions from you or any information
provided by you respecting the Borrower, the Borrower's financial condition and
existing indebtedness, the Borrower's authority to borrow or the Borrower's use
and intended use of all Debt proceeds.
14. RELIANCE. I acknowledge that you are relying on this Guaranty in extending
credit to the Borrower, and I have signed this Guaranty to induce you to extend
such credit. I represent and warrant to you that I have a direct and substantial
economic interest in the Borrower and expect to derive substantial benefits from
any loans and financial accommodations resulting in the creation of indebtedness
guaranteed hereby. I agree to rely exclusively on the right to revoke this
Guaranty prospectively as to future transactions in the manner as previously
described in this Guaranty if at any time, in my opinion, the benefits then
being received by me in connection with this Guaranty are not sufficient to
warrant the continuance of this Guaranty. You may rely conclusively on a
continuing warranty that I continue to be benefited by this Guaranty and you
will have no duty to inquire into or confirm the receipt of any such benefits,
and this Guaranty will be effective and enforceable by you without regard to the
receipt, nature or value of any such benefits.
15. APPLICABLE LAW. This Guaranty is governed by the laws of Arkansas, the
United States of America and to the extent required by the laws of the
jurisdiction where the Property is located.
16. AMENDMENT, INTEGRATION AND SEVERABILITY. This Guaranty may not be amended or
modified by oral agreement. No amendment or modification of this Guaranty is
effective unless made in writing and executed by you and me. This Guaranty is
the complete and final expression of the agreement. If any provision of this
Guaranty is unenforceable, then the unenforceable provision will be severed and
the remaining provisions will still be enforceable.
17. INTERPRETATION. Whenever used, the singular includes the plural and the
plural includes the singular. The section headings are for convenience only and
are not to be used to interpret or define the terms of this Guaranty.
18. NOTICE, FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Unless otherwise
required by law, any notice will be given by delivering it or mailing it by
first class mail to the appropriate party's address listed in the DATE AND
PARTIES section, or to any other address designated in writing. Notice to one
party will be deemed to be notice to all parties. I will inform you in writing
of any change in my name, address or other application information. I will
provide you any financial statement or information you request. All financial
statements and information I give you will be correct and complete. I agreed to
sign, deliver and file any additional documents or certifications that you may
consider necessary to perfect, continue and preserve my obligations under this
Guaranty and to confirm you lien status on any Property. Time is of the essence.
19. CREDIT INFORMATION. I agree that from time to time you may obtain credit
information about me from others, including other lenders and credit reporting
agencies, and report to others (such as a credit reporting agency) your credit
experience with me. I agree that you will not be liable for any claim arising
from the use of information provided to you by others or for providing such
information to others.
20. SIGNATURES. By signing, I agree to the terms contained in this Guaranty. I
also acknowledge receipt of a copy of this Guaranty.
GUARANTOR:
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Xxxxxx X. Xxxxxxx
LENDER:
First Financial Bank
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Xxx X. Xxxxxxx, Consumer Loan Officer
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