Exhibit 10.56
NationsBank of Texas, N.A. CONTINUING AND UNCONDITIONAL GUARANTY
1. Guaranty. For Value Received, and to induce NationsBank of Texas, N.A.
Austin Commercial Banking
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Banking Center
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Bank Street Address City State Zip Code
(Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ ) (herein called "Bank"), to make loans or advances or to
extend credit or other financial accommodations or benefits, with or without
security, to or for the account of
American Physicians Service Group, Inc., a Texas corporation
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Borrower's Name
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Street Address City State Zip Code
(herein called "Borrower"), the undersigned (herein called "Guarantor"), if more
than one, then each of them jointly and severally, hereby becomes surety for and
irrevocably and unconditionally guarantees to Bank the full and prompt payment
when due, whether by acceleration or otherwise, of any and all Liabilities (as
hereinafter defined) of Borrower to Bank, together with reasonable attorney's
fees, costs and expenses incurred by Bank in enforcing any and all of such
indebtedness. This Guaranty is continuing and unlimited as to the amount.
Guarantor further unconditionally guarantees the faithful, prompt and complete
compliance by Borrower with all terms, conditions, covenants, agreements and
undertakings of Borrower (herein collectively referred to as the "Obligations")
under all notes and other documents evidencing the Liabilities, as hereinafter
defined, and under all security agreements and other agreements, documents and
instruments executed in connection with the Liabilities or related thereto
including, without limitation, all obligations of Borrower pursuant to that
certain Revolving Credit Loan Agreement dated as of February , 1998, executed by
Bank and Borrower (the "Loan Agreement") (all such security agreements and other
documents securing payment of the Liabilities and all notes and other
agreements, documents, and instruments evidencing or relating to the Liabilities
and Obligations being herein collectively called the "Loan Documents"). The
undertakings of Guarantor hereunder are independent of the Liabilities and
Obligations of the Borrower and a separate action or actions for payment,
damages or performance may be brought or prosecuted against Guarantor, whether
or not an action is brought against the Borrower or to realize upon the security
for the Liabilities and/or Obligations and whether or not Borrower is joined in
any such action or actions, and whether or not notice is given or demand is made
upon the Borrower.
Bank shall not be required to proceed first against Borrower, or any other
person, firm or corporation, whether primarily or secondarily liable, or against
any Collateral held by it, before resorting to Guarantor for payment, and
Guarantor shall not be entitled to assert as a defense to the enforceability of
the Guaranty any defense of Borrower with respect to any Liabilities or
Obligations.
1. PARAGRAPH HEADINGS AND GOVERNING LAW. Guarantor agrees that the paragraph
headings in this Guaranty are for convenience only and that they will not limit
any of the provisions of this Guaranty. Guarantor further agrees that this
Guaranty shall be governed by and construed in accordance with the laws of the
State of Texas and applicable United States federal law. Guarantor further
agrees that this Guaranty shall be deemed to have been made in the State of
Texas at Bank's address indicated herein, and shall be governed by, and
construed in accordance with, the laws of the State of Texas, or the United
States courts located within the State of Texas, and is performable in ▇▇▇▇▇▇,
▇▇▇▇▇▇ County, Texas.
1. DEFINITIONS.
2.
A. "Liability" or "Liabilities" as used herein shall include without limitation,
all liabilities, overdrafts, indebtedness, and obligations of Borrower to Bank,
whether direct or indirect, absolute or contingent, joint or several, secured or
unsecured, due or not due, contractual or tortious, liquidated or unliquidated,
arising by operation of law or otherwise, now or hereafter existing, or held or
to be held by the Bank for its own account or as agent for another or others,
whether created directly, indirectly, or acquired by assignment or otherwise,
including but not limited to all extensions or renewals thereof, and all sums
payable under or by virtue thereof, including without limitation, all amounts of
principal and interest, all expenses (including attorney's fees and cost of
collection as specified) incurred in the collection thereof or the enforcement
of rights thereunder or in enforcing this Guaranty (including without
limitation, any liability arising from failure to comply with state or federal
laws, rules and regulations concerning the control of hazardous wastes or
substances), whether arising in the ordinary course of business or otherwise,
and whether held or to be held by Bank for its own account or as agent for
another or others. If Borrower is a partnership, corporation or other entity the
term "Liability" or "Liabilities" as used herein shall include all Liabilities
to Bank of any successor entity or entities.
A. "Guarantor" as used herein shall mean Guarantor or any one or more of them.
Anyone executing this Guaranty shall be bound by the terms hereof without regard
to execution by anyone else. This Guaranty is binding upon Guarantor, his, their
or its executors, administrators, successors or assigns, and shall inure to the
benefit of Bank, its successors, endorsees or assigns.
B.
C. "Guarantor" as used in this instrument shall be construed as singular or
plural to correspond with the number of persons executing this instrument as
Guarantor. The pronouns used in this Agreement are in the masculine gender but
shall be construed as female or neuter as an occasion may require.
D.
E.
"Collateral" means the property subject to a security interest, and includes
accounts and chattel paper which have been sold, including but not limited to
all additions and accessions thereto, all replacements or substitutes therefor,
and all immediate and remote proceeds of the sale or other disposition thereof.
1. WAIVERS BY GUARANTOR. Guarantor waives notice of acceptance of this Guaranty,
notice of any Liability or Obligations to which it may apply, and waives
presentment, demand for payment, protest, notice of dishonor or nonpayment of
any Liabilities, waiver of notice of intent to accelerate, waiver of notice of
acceleration and notice of any suit or the taking of other action by Bank
against Borrower, Guarantor or any other person and any other notice to any
party liable thereon (including Guarantor) and any applicable statute of
limitations.
Until payment in full of the Liabilities and the Obligations, each Guarantor
also hereby waives any claim, right or remedy which such Guarantor may now have
or hereafter acquire against the Borrower that arises hereunder and/or from the
performance by any Guarantor hereunder including, without limitation, any claim,
remedy or right of subrogation, reimbursement, exoneration, contribution,
indemnification, or participation in any claim, right or remedy of the Bank
against the Borrower or any security which the Bank now has or hereafter
acquires, whether or not such claim, right or remedy arises in equity, under
contract, by statute, under common law or otherwise.
Guarantor hereby agrees to waive the benefits of any provision of law requiring
that the Bank exhaust any right or remedy, or take any action, against the
Borrower, any Guarantor, any other person and/or property including but not
limited to the provisions of the Texas Civil Practice and Remedies Code ss.
17.001, Texas Rules of Civil Procedure Rule 31 and the Texas Business and
Commerce Code ss. 34.03, as amended, or otherwise.
Bank may at any time and from time to time (whether before or after revocation
or termination of this Guaranty) without notice to Guarantor (except as required
by law), without incurring responsibility to Guarantor, without impairing,
releasing, or otherwise affecting the obligations of Guarantor, in whole or in
part, and without the endorsement or execution by Guarantor of any additional
consent, waiver or guaranty: (a) change the manner, place or terms of payment;
(b) change or extend the time of or renew or alter, any Liability or Obligation
or installment thereof, or any security therefor; (c) loan additional monies or
extend additional credit to Borrower, with or without security, thereby creating
new Liabilities or Obligations the payment or performance of which shall be
guaranteed hereunder, and the Guaranty herein made shall apply to the
Liabilities and Obligations as so changed, extended, surrendered, realized upon
or otherwise altered; (d) sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property at any time
pledged or mortgaged to secure the Liabilities or Obligations and any offset
there against; (e) exercise or refrain from exercising any rights against
Borrower or others (including Guarantor) or act or refrain from acting in any
other manner; (f) settle or compromise any Liability or Obligation or any
security therefor and subordinate the payment of all or any part thereof to the
payment of any Liability or Obligation of any other parties primarily or
secondarily liable on any of the Liabilities or Obligations; (g) release or
compromise any liability of Guarantor hereunder or any Liability or Obligation
of any other parties primarily or secondarily liable on any of the Liabilities
or Obligations; or (h) apply any sums from any sources to any Liability without
regard to any Liabilities remaining unpaid.
1. SUBORDINATION. Upon demand of Bank, Guarantor agrees that it will not demand,
take or receive from the Borrower, by set-off or in any other manner, payment of
any liabilities and/or obligations, now and at any time or times hereafter owing
by the Borrower to Guarantor unless and until all the Liabilities shall have
been fully paid, and any security interest, liens or encumbrances which
Guarantor now has and from time to time hereafter may have upon any of the
assets of the Borrower shall be made subordinate, junior and inferior and
postponed in priority, operation and effect to any security interest of Bank in
such assets.
2.
3. WAIVERS BY BANK. No delay on the part of Bank in exercising any of its
options, powers or rights, or any partial or single exercise thereof, shall
constitute a waiver thereof. No waiver of any of its rights hereunder, and no
modification or amendment of this Guaranty, shall be deemed to be made by Bank
unless the same shall be in writing, duly signed on behalf of Bank; and each
such waiver, if any, shall apply only with respect to the specific instance
involved, and shall in no way impair the rights of Bank or the obligations of
Guarantor to Bank in any other respect at any other time.
4.
5. TERMINATION.
This Guaranty shall continue until written notice of revocation signed by each
respective Guarantor or until written notice of the death of such Guarantor
shall actually have been received by Bank, notwithstanding change in name,
location, composition or structure of, or the dissolution, termination or
increase, decrease or change in personnel, owners or partners of Borrower, or
any one or more of Guarantors, provided, however, that no notice of revocation
or termination hereof shall affect in any manner rights arising under this
Guaranty with respect to Liabilities or Obligations that shall have been
created, contracted, assumed or incurred prior to receipt of such written notice
pursuant to any agreement entered into by Bank prior to receipt of such notice,
and the sole effect of such notice of revocation or termination hereof shall be
to exclude from this Guaranty, Liabilities or Obligations thereafter arising
that are unconnected with Liabilities or Obligations theretofore arising or
transactions entered into theretofore.
6.
7. PARTIAL INVALIDITY AND/OR ENFORCEABILITY OF GUARANTY. The unenforceability or
invalidity of any provision of this Guaranty shall not affect the enforceability
or validity of any other provision herein and the invalidity or unenforceability
of any provision of any Loan Document as it may apply to any person or
circumstance shall not affect the enforceability or validity of such provision
as it may apply to other persons or circumstances.
8.
9. In the event Bank is required to relinquish or return the
payments, the Collateral or the proceeds thereof, in whole or in part, which had
been previously applied to or retained for application against any Liability, by
reason of a proceeding arising under the Bankruptcy Code, or for any other
reason, this Guaranty shall automatically continue to be effective
notwithstanding any previous cancellation or release effected by the Bank.
10.
11. OBLIGATIONS OF GUARANTOR. Upon the occurrence of an event of default,
Guarantor shall upon demand by Bank, promptly and with due diligence pay all
Liabilities and perform and satisfy for the benefit of Bank all Obligations.
12.
13. Guarantor will not become a party to a merger or consolidation with any
other company, except as provided in the Loan Agreement. Guarantor further
agrees that this Guaranty Agreement shall be binding, legal and enforceable
against Guarantor in the event Borrower changes its name, status or type of
entity.
14.
15. FINANCIAL AND OTHER INFORMATION. In entering into this Guaranty,
the Guarantor has not relied upon any representation of the Bank as to the
financial condition, operation or creditworthiness of the Borrower. The
Guarantor further agrees that the Bank shall have no duty or responsibility now
or hereafter to make any investigation or appraisal of the Borrower on behalf of
the Guarantor or to provide the Guarantor with any credit or other information
which may come to its attention now or hereafter.
16.
17. NOTICES. All notices
required or permitted to be given to Bank herein shall be sent by registered or
certified mail, return receipt requested to the Bank at the address shown in the
preamble to this agreement. Guarantor agrees that all notices required or
permitted to be given to Guarantor shall be sent by first class mail, postage
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prepaid United States mail. The parties agree that the notice shall be
considered received by Guarantor five (5) days after being placed in the United
States mail.
18.
19. EVENTS OF DEFAULT. The following are events of default
hereunder: (a) an Event of Default as defined in the Loan Agreement shall occur
and be continuing; or (b) termination of Guaranty by Guarantor.
20.
21.
REMEDIES. Upon the occurrence of any event of default hereunder, Bank shall have
all of the remedies of a creditor and, to the extent applicable, of a secured
party, under all applicable law, and without limiting the generality of the
foregoing, Bank may, at its option and without notice of demand: (a) declare any
Liability accelerated and due and payable at once; and (b) take possession of
any Collateral wherever located, and sell, resell, assign, transfer and deliver
all or any part of said Collateral of Borrower or Guarantor at any public or
private sale or otherwise dispose of any or all of the Collateral in its then
condition, for cash or on credit or for future delivery, and in connection
therewith Bank may impose reasonable conditions upon any such sale. Bank, unless
prohibited by law the provisions of which cannot be waived, may purchase all or
any part of said Collateral to be sold, free from and discharged of all trusts,
claims, rights or redemption and equities of the Borrower or Guarantor
whatsoever; Guarantor acknowledges and agrees that the sale of any Collateral
through any nationally recognized broker-dealer, investment banker or any other
method common in the securities industry shall be deemed a commercially
reasonable sale under the Uniform Commercial Code or any other equivalent
statute or federal law, and expressly waives notice thereof except as provided
herein; and (c) set-off against any or all liabilities of Guarantor all money
owed by Bank in any capacity to Guarantor whether or not due, and also set-off
against all other Liabilities of Borrower or Guarantor to Bank all money owed by
Bank in any capacity to any Borrower or Guarantor, and if exercised by Bank,
Bank shall be deemed to have exercised such right of set-off and to have made a
charge against any such money immediately upon the occurrence of such default
although made or entered on the books subsequent thereto.
22.
23. ATTORNEY FEES,
Cost and Expenses. Guarantor shall pay all costs of collection and reasonable
attorney's fees, including reasonable attorney's fees in connection with any
suit, mediation or arbitration proceeding, out of court payment agreement,
trial, appeal, bankruptcy proceedings or otherwise, incurred or paid by Bank in
enforcing the payment of any Liability or enforcing or preserving any right or
interest of Bank hereunder, including the collection, preservation, sale or
delivery of any Collateral from time to time pledged to Bank, and after
deducting such fees, costs and expenses from the proceeds of sale or collection,
Bank may apply any residue to pay any of the Liabilities and Guarantor shall
continue to be liable for any deficiency with interest at the rate specified in
any instrument evidencing the Liability or, at the Bank's option, equal to the
highest lawful rate, which shall remain a liability.
24.
25. PRESERVATION OF PROPERTY. Bank shall not be bound to take any steps
necessary to preserve any rights in any of the property of Guarantor pledged to
Bank to secure Guarantor's obligations against prior parties who may be liable
in connection therewith, and Guarantor hereby agrees to take any such steps.
Bank, nevertheless, at any time, may (a) take any action it deems appropriate
for the care or preservation of such property or of any rights of Guarantor or
Bank therein, (b) demand, ▇▇▇ for, collect or receive any money or property at
any time due, payable or receivable on account of or in exchange for any
property of Guarantor, (c) compromise and settle with any person liable on such
property, or (d) extend the time of payment or otherwise change the terms of the
Loan Documents as to any party liable on the Loan Documents, all without notice
to, without incurring responsibility to, and without affecting any of the
obligations or liabilities of Guarantor.
26.
27. Collateral. Bank shall have a properly perfected security
interest in all of Guarantor's funds on deposit with Bank to secure the balance
of any liabilities and/or obligations that Guarantor may now or in the future
owe the Bank. Bank is granted a contractual right of set-off and will not be
liable for dishonoring checks or withdrawals where the exercise of Bank's
contractual right of set-off or security interest results in insufficient funds
in Guarantor's account. As authorized by law, Guarantor grants to Bank this
contractual right of set-off and security interest in all property of Guarantor
now or at anytime hereafter in the possession of Bank, including but not limited
to any joint account, special account, account by the entireties, tenancy in
common, and all dividends and distributions now or hereafter in the possession
or control of Bank.
28.
29. LIMITATION. It is the intention of Guarantor and the
Bank that the amount of the Liabilities and Obligations guaranteed by Guarantor
by this Guaranty shall be in, but not in excess of, the maximum amount permitted
by fraudulent conveyance, fraudulent transfer or similar laws applicable as to
Guarantor. Accordingly, notwithstanding anything to the contrary contained in
this Guaranty or any other agreement or instrument executed in connection with
the payment of any of the Limitations and the Obligations, the amount of the
Liabilities and the Obligations guaranteed by Guarantor by this Guaranty shall
be limited to that amount which after giving effect thereto would not (i) render
Guarantor insolvent, (ii) result in the fair saleable value of the assets of
Guarantor being less than the amount required to pay its debts and other
liabilities (including contingent liabilities) as they mature, or (iii) leave
Guarantor with unreasonably small capital to carry out its business as now
conducted and as proposed to be conducted, including its capital needs, as such
concepts described in (i), (ii) and (iii) herein are determined under applicable
law, if the obligations of Guarantor hereunder would otherwise be set aside,
terminated, annulled or avoided for such reason by a court of competent
jurisdiction in a proceeding actually pending before such court. For purposes of
this Guaranty, the term "applicable law" means as to Guarantor each statute,
law, ordinance, regulation, order, judgment, injunction or decree of the United
States or any state or commonwealth, any municipality, any foreign country, or
any territory, possession or tribunal applicable to Guarantor.
30.
31.
ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO
INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM BASED ON OR
ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE
APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION
OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC.
(J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY
INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION
AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS
AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES
IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
32.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
BORROWER'S DOMICILE AT THE TIME OF THIS AGREEMENT'S EXECUTION AND ADMINISTERED
BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
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ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
B.
C. RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO
(I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION
OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (II) BE A WAIVER BY
THE BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE BANK HERETO
(A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SET-OFF, OR (B)
TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN
FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO)
INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE BANK
MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH
PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY
ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT. AT BANK'S OPTION,
FORECLOSURE UNDER A DEED OF TRUST OR MORTGAGE MAY BE ACCOMPLISHED BY ANY OF THE
FOLLOWING: THE EXERCISE OF A POWER OF SALE UNDER THE DEED OF TRUST OR MORTGAGE,
OR BY JUDICIAL SALE UNDER THE DEED OF TRUST OR MORTGAGE, OR BY JUDICIAL
FORECLOSURE. NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES
SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN
ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING
RESORT TO SUCH REMEDIES.
D.
33. NOTICE OF FINAL AGREEMENT. THIS WRITTEN
CONTINUING AND UNCONDITIONAL GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
34.
35.
36. Dated: February 10, 1998
37.
38.
NATIONSBANK OF TEXAS, N.A.
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
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Guarantors:
SYNTERA TECHNOLOGIES, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇.▇ ▇▇▇▇
Title: President
APS REALTY, INC., a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇
Title: VP