Exhibit 10.5
COMMERCIAL GUARANTY
CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. For good and
valuable
consideration, Guarantor absolutely and unconditionally guarantees
full and
punctual payment and satisfaction of the Indebtedness of Borrower
to Lender, and
the performance and discharge of all Borrower's obligations under
the Note and
the Related Documents. This is a guaranty of payment and
performance and not of
collection, so Lender can enforce this Guaranty against Guarantor
even when
Lender has not exhausted Lender's remedies against anyone else
obligated to pay
the Indebtedness or against any collateral securing the
Indebtedness, this
Guaranty or any other guaranty of the Indebtedness. Guarantor will
make any
payments to Lender or its order, on demand, in legal tender of the
United States
of America, in same-day funds, without set-off or deduction or
counterclaim, and
will otherwise perform Borrower's obligations under the Note and
Related
Documents. Under this Guaranty, Guarantor's liability is unlimited
and
Guarantor's obligations are continuing.
INDEBTEDNESS. The word Indebtedness as used in this Guaranty means
all of the
principal amount outstanding from time to time and at any one or
more times,
accrued unpaid interest thereon and all collection costs and legal
expenses
related thereto permitted by law, attorneys' fees, arising from any
and all
debts, liabilities and obligations of every nature or form, now
existing or
hereafter arising or acquired, that Borrower individually or
collectively or
interchangeably with others, owes or will owe Lender. Indebtedness
includes,
without limitation, loans, advances, debts, overdraft indebtedness,
credit card
indebtedness, lease obligations, liabilities and obligations under
any interest
rate protection apreements or foreign currency exchange agreements
or commodity
price protection agreements, other obligations, and liabilities of
Borrower, and
any present or future judgments against Borrower, future advances,
loans or
transactions that renew, extend, modify, refinance, consolidate or
substitute
these debts, liabilities and obligations whether: voluntarily or
involuntarily
incurred; due or to become due by their terms or acceleration;
absolute or
contingent; liquidated or unliquidated; determined or undetermined;
direct or
indirect; primary or secondary in nature or arising from a guaranty
or surety;
secured or unsecured; joint or several or joint and several;
evidenced by a
negotiable or non-negotiable instrument or writing; originated by
Lender or
another or others; barred or unenforceable against Borrower for any
reason
whatsoever; for any transactions that may be voidable for any
reason (such as
infancy, insanity, ultra vires or otherwise); and originated then
reduced or
extinguished and then afterwards increased or reinstated. If Lender
presently
holds one or more guaranties, or hereafter receives additional
guaranties from
Guarantor, Lender's rights under all guaranties shall be
cumulative. This
Guaranty shall not (unless specifically provided below to the
contrary) affect
or invalidate any such other guaranties. Guarantor's liability will
be
Guarantor's aggregate liability under the terms of this Guaranty
and any such
other unterminated guaranties.
CONTINUING GUARANTY. THIS IS A `CONTINUING GUARANTY UNDER WHICH
GUARANTOR AGREES
TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND
SATISFACTION OF THE
INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR HEREAFTER
ARISING OR
ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY
PAYMENTS MADE ON THE
INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S OBLIGATIONS
AND
LIABILITY UNDER THIS GUARANTY FOR ANY REMAINING AND SUCCEEDING
INDEBTEDNESS EVEN
WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO
BALANCE FROM TIME
TO TIME.
DURATION OF GUARANTY. This Guaranty will take effect when received
by Lender
without the necessity of any acceptance by Lender, or any notice to
Guarantor or
to Borrower, and will continue in full force until all the
Indebtedness incurred
or contracted before receipt by Lender of any notice of revocation
shall have
been fully and finally paid and satisfied and all of Guarantor's
other
obligations under this Guaranty shall have been performed in full.
If Guarantor
elects to revoke this Guaranty, Guarantor may only do so in
writing. Guarantor's
written notice of revocation must be mailed to Lender, by certified
mail, at
Lender's address listed above or such other place as Lender may
designate in
writing. Written revocation of this Guaranty will apply only to new
Indebtedness
created after actual receipt by Lender of Guarantor's written
revocation. For
this purpose and without limitation, the term `new Indebtedness'
does not
include the Indebtedness which at the time of notice of revocation
is
contingent, unliquidated, undetermined or not due and which later
becomes
absolute, liquidated, determined or due. For this purpose and
without
limitation, `new Indebtedness' does not include all or part of the
Indebtedness
that is: incurred by Borrower prior to revocation; incurred under a
commitment
that became binding before revocation; any renewals, extensions,
substitutions,
and modifications of the Indebtedness. This Guaranty shall bind
Guarantor's
estate as to the Indebtedness created both before and after
Guarantor's death or
incapacity, regardless of Lender's actual notice of Guarantor's
death. Subject
to the foregoing, Guarantor's executor or administrator or other
legal
representative may terminate this Guaranty in the same manner in
which Guarantor
might have terminated it and with the same effect. Release of any
other
guarantor or termination of any other guaranty of the Indebtedness
shall not
affect the liability of Guarantor under this Guaranty. A revocation
Lender
receives from any one or more Guarantors shall not affect the
liability of any
remaining Guarantors under this Guaranty. Guarantor's obligations
under this
Guaranty shall be in addition to any of Guarantor's obligations, or
any of them,
under any other guaranties of the Indebtedness or any other person
heretofore or
hereafter given to Lender unless such other guaranties are modified
or revoked
in writing; and this Guarantor shall not, unless provided in this
Guaranty,
affect, invalidate, or supersede any such other guaranty. It is
anticipated that
fluctuations may occur in the aggregate amount of the Indebtedness
covered by
this Guaranty, and Guarantor specifically acknowledges and agrees
that
reductions in the amount of the Indebtedness, even to zero dollars
l$0.00).
shall not constitute a termination of this Guaranty. This Guaranty
is binding
upon Guarantor and Guarantor's heirs, successors and assigns so
long as any of
the Indebtedness remains unpaid and even though the Indebtedness
may from time
to time be zero dollars l$0.00).
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender,
either before
or after any revocation hereof, without notice or demand and
without lessening
Guarantor's liability under this Guaranty, from time to time: (A)
prior to
revocation as set forth above, to make one or more additional
secured or
unsecured loans to Borrower, to lease equipment or other goods to
Borrower, or
otherwise to extend additional credit to Borrower; (B) to alter,
compromise,
renew, extend, accelerate, or otherwise change one or more times
the time for
payment or other terms of the Indebtedness or any part of the
Indebtedness,
including increases and decreases of the rate of interest on the
Indebtedness;
extensions may be repeated and may be for longer than the original
loan term;
(C) to take and hold security for the payment of this Guaranty or
the
Indebtedness, and exchange, enforce, waive, subordinate, fail or
decide not to
perfect, and release any such security, with or without the
substitution of new
collateral; (D) to release, substitute, agree not to sue, or deal
with any one
or more of Borrower's sureties, endorsers, or other guarantors on
any terms or
in any manner Lender may choose; (E) to determine how, when and
what application
of payments and credits shall be made on the Indebtedness; (F) to
apply such
security and direct the order or manner of sale thereof, including
without
limitation, any nonjudicial sale permitted by the terms of the
controlling
security agreement or deed of trust, as Lender in its discretion
may determine;
(G) to sell, transfer, assign or grant participations in all or any
part of the
Indebtedness; and (H) to assign or transfer this Guaranty in whole
or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents
and warrants to
Lender that (A) no representations or agreements of any kind have
been made to
Guarantor which would limit or qualify in any way the terms of this
Guaranty;
(B) this Guaranty is executed at Borrower's request and not at the
request of
Lender; (C) Guarantor has full power, right and authority to enter
into this
Guaranty; (D) the provisions of this Guaranty do not conflict with
or result in
a default under any agreement or other instrument binding upon
Guarantor and do
not result in a violation of any law, regulation, court decree or
order
applicable to Guarantor; (E) Guarantor has not and will not,
without the prior
written consent of Lender, sell, lease, assign, encumber,
hypothecate, transfer,
or otherwise dispose of all or substantially all of Guarantor's
assets, or any
interest therein; (F) upon Lender's request, Guarantor will provide
to Lender
financial and credit information in form acceptable to Lender, and
all such
financial information which currently has been, and all future
financial
information which will be provided to Lender is and will be true
and correct in
all material respects and fairly present Guarantor's financial
condition as of
the dates the financial information is provided; (G) no material
adverse change
has occurred in Guarantor's financial condition since the date of
the most
recent financial statements provided to Lender and no event has
occurred which
may materially adversely affect Guarantor's financial condition;
(H) no
litigation, claim, investigation, administrative proceeding or
similar action
(including those for unpaid taxes) against Guarantor is pending or
threatened;
(I) Lender has made no representation to Guarantor as to the
creditworthiness of
Borrower; and (J) Guarantor has established adequate means of
obtaining from
Borrower on a continuing basis information regarding Borrower's
financial
condition. Guarantor agrees to keep adequately informed from such
means of any
facts, events, or circumstances which might in any way affect
Guarantor's risks
under this Guaranty, and Guarantor further agrees that, absent a
request for
information, Lender shall have no obligation to disclose to
Guarantor any
information or documents acquired by Lender in the course of its
relationship
with Borrower.
GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish
Lender with the
following: Tax Returns. As soon as available, but in no event later
than
one-hundred-twenty (120) days after the applicable filing date for
the tax
reporting period ended, Federal and other governmental tax returns,
prepared by
a tax professional satisfactory to Lender.
All financial reports required to be provided under this Guaranty
shall be
prepared in accordance with GAAP, applied on a consistent basis,
and certified
by Guarantor as being true and correct.
GUARANTOR'
