Exhibit 7.3
A FIFTH THIRD BANCORP BANK
OHIO AFFILIATES
Cleveland, Ohio
April 24, 2000
UNLIMITED PAYMENT GUARANTY
--------------------------
XXXXXXX X. XXXXXXX located at___________________________________________________
(hereinafter called "Guarantor"), jointly and severally if more than one,
agree(s) to guarantee the payment of all monies due or which may hereafter
become due to Fifth Third Bank, Northeastern Ohio, 0000 X. Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000 and all affiliates of Fifth Third Bancorp (hereinafter
collectively called "Bank") by XXXXXXX X. XXXXXXX TRUST U/A DATED JANUARY 13,
1995 located at 0000 XXXXXXX XXXXXX, XXXXX 000, XXXX XXXXXX, XXXXXX, XXXX 00000
(hereinafter called "Borrower").
1. GUARANTY: In consideration of an extension of a loan, credit or other
financial accommodation given pursuant to a note or notes, or given pursuant to
any extensions or renewals thereof, or pursuant to any other agreements to
extend credit of any kind or nature to Borrower, Guarantor guarantees the prompt
payment when due of all indebtedness and liabilities of Borrower of every kind,
nature, and character including principal and interest and all renewals,
extensions, and modifications thereof (hereinafter collectively called
"Obligation") now existing or which hereafter may be incurred by Borrower to
Bank. The liability of Guarantor hereunder shall be unconditional,
notwithstanding the unenforceability or invalidity of any Obligation of Borrower
and shall survive the adjudication in bankruptcy of Borrower, any compromise of
any Obligation of Borrower to Bank by any order of any federal bankruptcy court
or any other court of competent jurisdiction. In the event of the payment of any
Obligation of Borrower owing to Bank and any subsequent order by a federal
bankruptcy court or any other court of competent jurisdiction that such payment
was fraudulent, preferential, invalid or void for any reason requiring the
repayment by Bank of the sum so paid to Bank to any bankruptcy trustee,
receiver, or other duly appointed representative of Borrower for the benefit of
Borrower or its creditors, Guarantor shall immediately pay to Bank such
Obligation.
2. LIMITATION BY GUARANTOR: Upon Guarantor's written request to Bank, this
payment guaranty shall terminate as to any future new Obligation of Borrower
arising after ninety (90) calendar days subsequent to the date of Bank's written
acknowledgment to Guarantor of receipt of the request. Guarantor shall remain
liable for the guaranty of payment in accordance with the terms hereof of any
Obligation arising on or before ninety (90) calendar days subsequent to the date
of Bank's written acknowledgment including any Obligation arising before said
date but renewed, extended or modified after said date.
3. RELEASE OF GUARANTOR: Without affecting the liability of any of the
undersigned not released, Bank may, without notice to the undersigned, release
and discharge from liability to it any of the undersigned if there be more than
one, or any other guarantor of, or surety for, the payment of any Obligation of
Borrower to Bank.
4. WAIVER OF NOTICE: Guarantor hereby waives notice of any change in the
Obligation, including without limitation renewals, extensions or modifications
of any Obligation of Borrower and hereby waives presentment, demand, protest,
notice of non-payment and notice of dishonor. No delay on the part of Bank in
exercising its rights hereunder shall operate as a waiver of guaranty by
Guarantor or operate as a release of Guarantor's obligations hereunder.
Xxxxxxxxx agrees that Bank may accept, surrender, or exchange collateral or
security, if any, without notice to Guarantor. Guarantor consents to any
impairment
Page 7.3-1
of collateral, including without limitation release of the collateral to a third
party or failure to perfect any security interest.
5. WAIVER OF IMPAIRMENT OF COLLATERAL: No Guarantor shall be released or
discharged, either in whole or in part, by Bank's failure or delay to perfect or
continue the perfection of any security interest in any property which secures
the obligations of the Borrower or any of the Guarantors to Bank, or to protect
the property covered by such security interest.
6. SURETYSHIP DEFENSES: Each Guarantor hereby waives all suretyship defenses,
including but not limited to, all defenses set forth in Section 3-605 of the
Uniform Commercial Code, as revised in 1990 (the "UCC") Such waiver is entered
to the full extent permitted by Section 3-605 (i) of the UCC.
7. MISCELLANEOUS PROVISIONS:
a) All rights of Bank shall inure to the benefit of its successors and
assigns and all obligations of' Guarantor shall bind the heirs, executors,
administrators, successors and assigns of Guarantor, and if there be more than
one Guarantor, their obligations shall be joint and several.
b) Guarantor shall promptly notify Bank in writing of any change in mailing
address.
c) Xxxxxxxxx agrees that expenses and reasonable attorney fees incurred by
Bank as the result of Guarantor's breach of any of the terms and conditions of
this Unlimited Payment Guaranty shall be paid by Guarantor to Bank.
d) Within 90 days after the end of each calendar year and from time to
time, as reasonably requested by Bank, Xxxxxxxxx agrees to deliver to Bank
updated financial statements of Guarantor in form and substance reasonably
satisfactory to Bank.
e) This Guaranty contains the entire agreement of the parties and no oral
agreement whatsoever, whether made contemporaneously herewith or hereafter,
shall amend, modify or otherwise affect the terms of this Guaranty unless in
writing and signed by the Bank.
f) This Unlimited Payment Guaranty shall be construed in accordance with
the laws of the State of Ohio. Any provision hereof which may prove
unenforceable shall not affect the enforceability of the remainder of the
provisions hereof.
g) Guarantor hereby irrevocably waives all legal and equitable rights to
recover from the Borrower any sums paid by the Guarantor under the terms of this
Guaranty, including without limitation all rights of subrogation and all other
rights that would result in Guarantor being deemed a creditor of Borrower under
the federal Bankruptcy Code or any other law.
h) Each Guarantor agrees that the state and federal courts in the county
and state where the Bank's principal place of business is located or any other
Court in which Bank initiates proceedings will have exclusive jurisdiction over
all matters arising out of this Guaranty.
i) EACH GUARANTOR AND BANK WAIVE, THE RIGHT TO TRIAL BY JURY FOR ANY
MATTERS ARISING IN CONNECTION WITH THIS GUARANTY OR THE, TRANSACTIONS RELATED
THERETO.
j) Each and every Guarantor hereunder authorizes any attorney of record to
appear for them in any court of record in the State of Ohio, after the
Obligation becomes due and payable, whether by its terms or upon default, waive
the issuance and service of process, and release all errors, and confess a
judgment against them in favor of the Bank or any holder of the Obligation, for
the principal amount of the Obligation plus interest as provided for; together
with court costs and attorney's fees. Stay of execution and all exemptions are
hereby waived. Each Guarantor also agrees that the attorney acting for Guarantor
as set forth in this paragraph may be compensated by Bank for such services, and
Guarantor waives any conflict of interest caused by such representation and
compensation arrangement. If the Obligation is referred to an attorney for
collection and the payment is obtained without the entry of a judgment, the
Guarantor shall pay to the Bank or holder of the Obligation its attorney's fees.
This warrant of attorney to confess judgement shall be construed under the laws
of the state of Ohio.
Page 7.3-2
WARNING: BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKE, N AGAINST YOU WITHOUT
YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WIT THE AGREEMENT, OR ANY
OTHER CAUSE.
Accepted by: XXXXXXX X. XXXXXXX , Individually
FIFTH THIRD BANK, NORTHEASTERN 0HIO /s/ Xxxxxxx X. Xxxxxxx
----------------------
By: /s/ Xxxxx X. Xxxxxx Guarantor(s)
-------------------
Xxxxx X. Xxxxxx
Vice President ADDRESS OF GUARANTOR(S)
Page 7.3-3
