GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this “Guaranty”) dated as of the ___ day of _________, 2005, made by _________________, having an address of __________________________________ (“Guarantor”), to ___________________________ (“Lender”) having an address of ______________________________________.
W I T N E S S E T H :
WHEREAS, pursuant to a Commitment Letter dated _______________, 200__ (as may be amended from time to time, the “Commitment”), Lender has agreed to make a loan (the “Loan”) to ___________________, a Pennsylvania limited liability company (“Borrower”) in the principal amount of $______________.00;
WHEREAS, the Loan is to be evidenced by Borrower's Note to Lender of even date herewith in the principal amount of $___________________.00 (as the same may be extended, renewed, refinanced, refunded, amended, modified or supplemented from time to time, the “Note”) and governed by a Construction Loan Agreement of even date herewith between Lender and Borrower (the “Loan Agreement”) (capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Loan Agreement);
WHEREAS, the Note is to be secured by, among other things, a Mortgage and Security Agreement (as the same may be amended, modified or supplemented from time to time, the “Mortgage”) and an Assignment of Leases and Rents (as the same may be amended, modified or supplemented from time to time, the “Assignment”), each of even date herewith and each intended to be recorded in the Office of the Recorder of Clearfield County, Pennsylvania;
WHEREAS, Guarantor expects to derive material benefits from the contemplated uses of the proceeds of the Loan, and desire that Lender make the Loan;
WHEREAS, Guarantor acknowledges receipt of copies of the Loan Agreement, the Note, the Mortgage, the Assignment, and the other Loan Documents (as such term is defined in the Mortgage) (capitalized terms used herein and not otherwise defined herein having the respective meanings assigned thereto in the Mortgage); and
WHEREAS, the execution and delivery by Guarantor of this Guaranty is a condition to Lender's obligation to make the Loan to Borrower pursuant to the Commitment.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt of which is hereby acknowledged by Guarantor, and intending to be legally bound, Guarantor hereby jointly and severally agrees as follows:
1.01. Guaranteed Obligations. Guarantor hereby unconditionally and irrevocably and jointly and severally guarantees to Lender and becomes surety to Lender for the due, punctual and full payment and performance of, and covenants with Lender to duly, punctually and fully pay and perform the following (collectively, the “Guaranteed Obligations”):
(a) the full and complete construction of the Improvements in a good and workmanlike manner in accordance with the Plans and Specifications approved by Lender and in compliance with all laws, all applicable permits, licenses and approvals of appropriate Governmental Authorities and all applicable private covenants on or before the Completion Date, free and clear of all liens;
(b) all indebtedness of Borrower to Lender evidenced by the Note and/or incurred under the Loan Agreement with respect to such indebtedness, both principal and interest, and any refinancing or refunding of any thereof, and all other amounts due or to become due under the Note and the other Loan Documents with respect to such indebtedness, and any refinancing or refunding of any thereof, whether now existing or hereafter arising, contracted or incurred as and when such payment or performance shall become due (whether by acceleration or otherwise) in accordance with the terms of the Loan Documents;
(c) the payment of all project costs to construct and complete the Improvements, including overruns, required for or incurred prior to completion of construction of the Improvements as described in subsection (a) above (“Guaranteed Project Costs”), as and when such payment shall become due; and
(d) the payment of any and all costs and expenses (including without limitation attorneys’ fees) incurred by Lender in connection with the enforcement of Borrower’s obligation to complete construction of the Improvements in accordance with the terms of the Loan Agreement as and when demanded by Lender.
1.02. Guarantee Unconditional. The obligations of Guarantor hereunder are continuing, absolute and unconditional, irrespective of any circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety. Without limiting the generality of the foregoing, the obligations of Guarantor hereunder shall remain in full force and effect without regard to, and shall not be released, discharged or in any way affected by:
(a) any amendment, modification or supplement to the Loan Agreement, the Mortgage, the Note or any other Loan Document or to the Construction Contract or the Plans and Specifications;
(b) any exercise or nonexercise of or delay in exercising any right, remedy, power or privilege under or in respect of this Guaranty, the Loan Agreement, the Mortgage, the Note or any other Loan Document (even if any such right, remedy, power or privilege shall be lost thereby), or any waiver, consent, indulgence or other action or inaction in respect thereof;
(c) any bankruptcy, insolvency, arrangement, composition, assignment for the benefit of creditors or similar proceeding commenced by or against Borrower;
(d) any failure to perfect or continue perfection of, or any release or waiver of, any rights given to Lender in any property as security for the performance of any of the Guaranteed Obligations;
(e) any extension of time for payment or performance of any of the Guaranteed Obligations;
(f) any limitation of liability of Borrower contained in any Loan Document;
(g) any defense that may arise by reason of the failure of Lender to file or enforce a claim against the estate of Borrower in any bankruptcy or other proceeding;
(h) any voluntary or involuntary liquidation, dissolution, sale of all or substantially all of the property of Borrower, or any marshaling of assets and liabilities, or other similar proceeding affecting Borrower or any of its assets;
(i) the release of Borrower from performance or observance of any of the agreements, covenants, terms or conditions contained in the Loan Documents by operation of law;
(j) the failure of Lender to keep Guarantor advised of Borrower's financial condition, regardless of the existence of any duty to do so;
(k) any damage or destruction to or condemnation of the Improvements prior to initial completion thereof; or
(l) any sale or other transfer of the Mortgaged Property or any part thereof or any foreclosure by Lender on the Mortgaged Property or any part thereof.
No set-off, which Borrower or Guarantor now has or hereafter may have against Lender, shall be available hereunder to Guarantor against Lender. Guarantor acknowledges that Lender may agree that it shall not in any foreclosure proceeding in respect of all or any portion of the Mortgaged Property seek or obtain a deficiency judgment against Borrower, and that the obligations of Borrower shall in no way be diminished or otherwise affected by the failure to seek or obtain a deficiency judgment.
1.03. No Notice or Duty to Exhaust Remedies. Guarantor hereby waives diligence, presentment, demand, protest and all notices of any kind, and waives any requirement that Lender exhaust any right or remedy, or proceed first or at any time, against Borrower or any other guarantor of, or any security for, any of the Guaranteed Obligations. This Guaranty constitutes an agreement of suretyship as well as of guaranty, and Lender may pursue its rights and remedies under this Guaranty and under the other Loan Documents in whatever order, or collectively, and shall be entitled to payment and performance hereunder notwithstanding such other Loan Documents and notwithstanding any action taken by Lender or inaction by Lender to enforce any of its rights or remedies against any other guarantor or any other Person or property whatsoever.
1.04. Loan Proceeds, Insurance Proceeds and Condemnation Proceeds. If, upon request by Lender, Guarantor do in fact commence and diligently proceed toward completion of construction of the Improvements, Lender will make available to Guarantor, from time to time as construction progresses, for payment of Guaranteed Project Costs (a) Loan advances from amounts remaining in the "Loan Reserve" of the categories of cost in the Cost Breakdown which represent Guaranteed Project Costs, subject to compliance by Guarantor with, and the satisfaction of, all of the terms and conditions of the Loan Agreement applicable to the making of such Loan advances, and (b) insurance proceeds and condemnation proceeds with respect to the Improvements to the extent they are required to be made available to Borrower under the Mortgage for restoration or rebuilding of any damaged or taken portion of the Improvements, subject to compliance by Guarantor with, and the satisfaction of, all of the terms and conditions of the Mortgage applicable to the disbursement by Lender of such proceeds. Notwithstanding the foregoing provisions of this Section 1.04, Lender shall not be obligated to advance funds (whether Loan advances, proceeds of insurance or proceeds from a condemnation award) to Guarantor if (a) an Event of Default specified in subsections (i) or (j) of Section 5.1 of the Mortgage occurs, (b) an Event of Default occurs as a result of an act or omission of the Guarantors or (c) in the case of any Loan advance, such Loan advance would for any reason not be secured by the Mortgage and the other Loan Documents.
1.05. Indemnity. Guarantor shall fully indemnify and save Lender harmless from any and all costs, expenses and losses Lender may incur with regard to the construction of the Improvements as described in Section 1.01 hereof by Borrower or Guarantor, including without limitation any and all costs, expenses and losses arising from any default by Borrower or Guarantor in the payment or performance of any of the Guaranteed Obligations.
REPRESENTATIONS, WARRANTIES AND COVENANTS
2.01. Representations and Warranties. Guarantor hereby represents, warrants and certifies to Lender that the representations and warranties made by Borrower under Article I of the Mortgage and Article II of the Loan Agreement are true and correct on the date hereof. In addition, Guarantor hereby covenants, represents and warrants that:
(a) This Guaranty is the valid and binding, joint and several obligation of Guarantor enforceable in accordance with its terms.
(b) That Guarantor is not insolvent and will not be rendered insolvent by the making of this Guaranty and that the financial statements of Guarantor heretofore delivered to Lender are true, complete and correct in all material respects.
(c) That Guarantor has received and examined complete copies of each of the Loan Documents and that all representations of Borrower set forth therein are true and correct in all material respects to the extent the same relate to Guarantor and are in all other respects true and correct to the best of Guarantor’s knowledge.
(d) That Guarantor will be benefited, directly and/or indirectly, by the making of the Loan to the Borrower.
2.02. Covenants. Guarantor hereby covenants to Lender that:
(a) Promptly upon becoming aware thereof, Guarantor shall give Lender notice of (i) the commencement, existence or threat of any proceeding by or before any Governmental Authority against or affecting Guarantor which, if adversely decided, could have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of Guarantor or on his ability to perform his obligations hereunder or (ii) any material adverse change in the business, operations, condition (financial or otherwise) or prospects of Guarantor.
(b) Guarantor shall permit such persons as Lender may designate to examine such Guarantor’s books and records and take copies and extracts therefrom and to discuss the affairs of Guarantor with his independent accountants at such times and as often as Lender may reasonably request upon reasonable prior written notice to Guarantor. Guarantor hereby authorizes such independent accountants to discuss with Lender the financial affairs of Guarantor.
(c) Guarantor shall not undertake any transfers of his personal assets to third parties (including without limitation, foreign trusts) without adequate consideration intended to defraud creditors or otherwise violate any fraudulent conveyance laws.
(d) Guarantor shall furnish Lender with copies of signed and dated federal tax returns within one hundred twenty (120) days of the fiscal year end, together with personal financial statements prepared, as applicable, in accordance with generally accepted accounting principles in the United States and such other information as Lender may reasonably request from time to time.
(e) Guarantor shall indemnify, jointly and severally along with the Borrower, the Lender from any and all environmental matter and liability relating to the Project.
3.01. Effect Of Bankruptcy Proceedings. 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 Guaranteed Obligations is rescinded or must otherwise be restored or returned by Lender as a preference, fraudulent conveyance or otherwise under any bankruptcy, insolvency or similar Law, all as though such payment had not been made. If an Event of Default at any time shall have occurred and be continuing or exist and declaration of default or acceleration under or with respect to any of the Loan Documents shall at such time be prevented by reason of the pendency against Borrower of a case or proceeding under any bankruptcy or insolvency Law, Guarantor agrees that, for purposes of this Guaranty and his obligations hereunder, such Loan Documents shall be deemed to have been declared in default or accelerated with the same effect as if such Loan Documents had been declared in default and accelerated in accordance with the terms thereof, and Guarantor shall forthwith pay the Guaranteed Obligations in full without further notice or demand.
3.02. Lender's Right of Set-Off. If an Event of Default shall occur, Lender and the holder of any participation in the Loan Documents shall have the right, in addition to all other rights and remedies available to it, to set-off against and to appropriate and apply to the unpaid balance of the Guaranteed Obligations any debt owing to, and any other funds held in any manner for the account of Guarantor by Lender or such holder, including without limitation all funds in all deposit accounts (general or special) now or hereafter maintained by Guarantor with Lender or such holder. Such right shall exist whether or not Lender or any such holder shall have made any demand under this Guaranty or any such participation or any other Loan Document and whether or not the Guaranteed Obligations or such participation is matured or unmatured. Guarantor hereby confirms the foregoing arrangements and each such holder's and the Lender's right of lien and set-off and nothing in this Guaranty or any other Loan Document shall be deemed any waiver or prohibition of any such holder's or of Lender's right of lien or set-off.
3.03. Further Assurances. From time to time upon the request of Lender, Guarantor shall promptly and duly execute, acknowledge and deliver any and all such further instruments and documents as Lender may deem necessary or desirable to confirm this Guaranty, to carry out the purpose and intent hereof or to enable Lender to enforce any of its rights hereunder.
3.04. Amendments, Waivers, Etc. This Guaranty cannot be amended, modified, waived, changed, discharged or terminated except by an instrument in writing signed by the party against whom enforcement of such amendment, modification, waiver, change, discharge or termination is sought.
3.05. No Implied Waiver; Cumulative Remedies. No course of dealing and no delay or failure of Lender in exercising any right, power or privilege under this Guaranty or any other Loan Document shall affect any other or future exercise thereof or exercise of any other right, power or privilege; nor shall any single or partial exercise of any such right, power or privilege or any abandonment or discontinuance of steps to enforce such a right, power or privilege preclude any further exercise thereof or of any other right, power or privilege. The rights and remedies of Lender under this Guaranty are cumulative and not exclusive of any rights or remedies which Lender would otherwise have under the other Loan Documents, at law or in equity.
3.06. Notices. All notices, requests, demands, directions and other communications (collectively “Notices”) under the provisions of this Guaranty shall be in writing unless otherwise expressly permitted hereunder and shall be sent by first-class or first-class express mail, in all cases with charges prepaid, and any such properly given notice shall be effective when received. All notices shall be sent to the applicable party addressed, if to Lender, c/o First Commonwealth Bank, 654 Philadelphia Street, Indiana, Pennsylvania 15701‑0400, and, if to Guarantor, at the address for Guarantor set forth on page 1 hereto, or in accordance with the last unrevoked written direction from such party to the other parties hereto.
3.07. Expenses. Guarantor agrees to pay or cause to be paid and to save Lender harmless against liability for the payment of all out-of-pocket expenses, including fees and expenses of counsel for Lender, incurred by Lender from time to time arising in connection with Lender's enforcement or preservation of rights under this Guaranty, including but not limited to such expenses as may be incurred by Lender in connection with any default by Guarantor of any of his obligations hereunder.
3.08. Survival. All obligations of Guarantor to make payments under Sections 3.01 or 3.07 hereof or to indemnify Lender (including indemnities by Borrower of Lender under the Loan Documents) shall survive the payment and performance in full of the Guaranteed Obligations.
3.09. Jurisdiction; Etc. Guarantor irrevocably (a) agrees that Lender may bring suit, action or other legal proceedings arising out of this Guaranty in the courts of the Commonwealth of Pennsylvania; (b) consent to the jurisdiction of each such court in any such suit, action or proceeding; (c) waive any objection which Guarantor may have to the laying of the venue of any such suit, action or proceeding in any of such courts; and (d) waive any right Guarantor may have to a jury trial in connection with any such suit, action or proceeding.
3.10. Severability. If any term or provision of this Guaranty or the application thereof to any Person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Guaranty, or the application of such term or provision to Persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Guaranty shall be valid and enforceable to the fullest extent permitted by law.
3.11. Governing Law. This Guaranty shall be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania without regard to its conflict of law provisions.
3.12. Successors and Assigns. This Guaranty shall bind Guarantor and his successors and assigns, and shall inure to the benefit of Lender and its successors and assigns.
3.13. Joint and Several. Guarantor further acknowledges and agrees that the Guaranteed Obligations are the subject of separate guaranty and suretyship agreements with other parties, and that the obligations of Guarantor hereunder shall in no way be released, discharged, diminished or in any way affected by the existence of such other guaranties or the pursuit of or for failure to pursue such other Guarantors.
3.14. FORUM. THE PARTIES HERETO AGREE THAT ANY ACTION OR PROCEEDING AGAINST GUARANTOR OR LENDER ARISING OUT OF THIS AGREEMENT MAY BE COMMENCED IN THE COURT OF COMMON PLEAS OF INDIANA COUNTY, PENNSYLVANIA, OR THE UNITED STATES DISTICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA AND FURTHER AGREE THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION OR PROCEEDING IN EITHER OF SUCH COURTS SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION IF SERVED PERSONALLY OR BY CERTIFIED MAIL TO GUARANTOR OR LENDER AT HIS RESPECTIVE ADDRESSES DESIGNATED PURSUANT HERETO, OR AS OTHERWISE PROVIDED UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA. FURTHER, GUARANTOR AND LENDER HEREBY SPECIFICALLY CONSENT TO THE PERSONAL JURISDICTION OF THE COURT OF COMMON PLEAS OF INDIANA COUNTY, PENNSYLVANIA AND THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA AND HEREBY WAIVE AND ACKNOWLEDGE THAT THEY ARE ESTOPPED FROM RAISING ANY OBJECTION BASED ON FORUM NON CONVENIENS, ANY CLAIM THAT EITHER SUCH COURT LACKS PROPER VENUE OR ANY OBJECTION THAT EITHER SUCH COURT LACKS PERSONAL JURISDICTION OVER GUARANTOR OR LENDER SO AS TO PROHIBIT EITHER SUCH COURT FROM ADJUDICATING ANY ISSUES RAISED IN A COMPLAINT FILED WITH EITHER SUCH COURT AGAINST GUARANTOR OR LENDER CONCERNING THIS AGREEMENT. GUARANTOS AND LENDER HEREBY ACKNOWLEDGE AND AGREE THAT THE CHOICE OF FORUM CONTAINED IN THIS SECTION 3.14 SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OBTAINED IN ANY FORUM OR THE TAKING OF ANY ACTION HEREUNDER TO ENFORCE THE SAME IN ANY APPROPRIATE JURISDICTION.
3.15. CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZE AND EMPOWER ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF COURT IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE TO APPEAR AT ANY TIME FOR GUARANTOR AND WITH OR WITHOUT COMPLAINT FILED, AS OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE OUTSTANDING PRINCIPAL BALANCE OF THE NOTE AND ALL ACCRUED INTEREST, TOGETHER WITH COSTS OF SUIT AND REASONABLE ATTORNEYS' FEES AND EXPENSES; AND FOR SO DOING, A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED HEREBY TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY.
IN WITNESS WHEREOF, Guarantor has duly executed and delivered this Guaranty as of the date first above written.
COMMONWEALTH OF PENNSYLVANIA )
COUNTY OF _________________ )
On this the ____ day of _____________, 200__, before me personally appeared ______________________, who is personally known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument and who did acknowledge that he executed said instrument and who did acknowledge that he executed said instrument for the purposes therein contained.
WITNESS my hand and official seal.
Notary Public - Signature
My commission expires: