EXHIBIT 10.24
GUARANTY OF PAYMENT AND PERFORMANCE
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("Guaranty")
Dated as of February 25, 1999
1. FOR VALUE RECEIVED, and in order to induce BANK ONE,
KENTUCKY, NA, a national banking association, and its successors and
assigns, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Bank"), to enter into certain loan modifications and to extend
additional or to continue to extend credit to EQUITY UNDERWRITING GROUP,
INC. ("EIMI") and EQUITY INSURANCE MANAGERS, INC. ("EUGI") (EUGI, EIMI,
and Commonwealth Premium Finance Corporation are collectively referred
to herein as the "Borrower"), the undersigned, UNIFIED FINANCIAL
SERVICES, INC. (the "Guarantor") does hereby personally guarantee
unconditionally to the holder of the Notes listed in Exhibit "A"
attached hereto (the "Notes") the due and punctual payment of all
installments of principal and interest now or in the future due under
the Notes, as and when the same shall be due and payable thereunder in
accordance with their respective terms, and whether the same be declared
due by the holder of the Notes prior to its stated maturity date by
virtue of default thereunder. The undersigned further guarantees the
prompt performance by Borrower of all non-monetary undertakings,
covenants and agreements to be performed by Borrower under the Notes.
2. The Guarantor consents and agrees that the whole or any part
of the security now or hereafter held for the Notes may be exchanged,
compromised, surrendered or released from time to time; that the time or
place of payment of the Notes or of any security therefor may be
exchanged or extended, in whole or in part, to a time certain or
otherwise, and the Notes may be renewed or accelerated, in whole or in
part; that Borrower may be extended further loans and be granted
indulgences generally; that any of the provisions of the Notes, or of
any instrument securing or pertaining to the security for the same, may
be modified or waived (either expressly or through tacit acquiescence);
that any party liable for the payment of the Notes may be granted
indulgences or released; that neither the death, insolvency, bankruptcy,
dissolution, nor disability of the Borrower or of the Guarantor shall
affect the obligations hereunder of the Guarantor; that no claim need be
asserted against the personal representatives, guardian, trustee in
bankruptcy or receiver of any deceased, incompetent, bankrupt or
insolvent Borrower or guarantor; that any deposit balance to the credit
of Borrower, Guarantor or any other party liable for payment of the
Notes or liable upon any security therefor may be released from time to
time in whole or in part, at, before or after the stated, extended or
accelerated maturity date of the Notes; and that the undersigned
Guarantor shall remain bound hereunder, notwithstanding any such
exchange, compromise, surrender, extension, renewal, acceleration,
modification, waiver, indulgence, release or other action, all of which
may be affected without notice to or further assent or agreement by
Guarantor.
3. The Guarantor expressly waives:
(a) Notice of acceptance of this Guaranty;
(b) Presentment and demand for payment of the Notes;
(c) Protest and notice of protest, dishonor or
default to Guarantor or to any other party with
respect to the Notes or any security for the
Notes;
(d) Demand for payment under this Guaranty;
(e) Notice of disposition of any security for the
Notes; and
(f) All rights of indemnity, exoneration,
reimbursement, contribution and/or subrogation
of Guarantor against Borrower.
4. This is a guaranty of payment as to monetary
obligations and not of collection. The liability of Guarantor
under this Guaranty shall be direct and immediate and not
conditional or contingent upon the pursuit of any remedies against
Borrower or any other guarantor or other person nor against the
security or liens available to holder for the payment of the
Notes. The Guarantor waives any claim to marshaling of assets and
waives any right to require that an action be brought against
Borrower or any other person prior to action against the Guarantor
hereunder and waives any right to require that resort be had to
any security for the Notes or to any balance of any deposit
account or credit on the books of the holder of the Notes in favor
of Borrower or any other party prior to action by the holder of
the Notes against the Guarantor hereunder. If the Notes are
partially paid through the election of the holder thereof to
pursue any of the remedies mentioned in this literary paragraph or
if the Notes is otherwise partially paid, Guarantor shall remain
personally liable for the entire unpaid principal balance of, and
all accrued interest on, the Notes.
5. The Notes shall constitute the primary independent and
continuing obligation of the Guarantor, who shall be liable for
payment of the debt evidenced by the Notes, notwithstanding the
partial or total invalidity of the Notes.
6. The obligations of the Guarantor under this Guaranty
shall not be subject to any counterclaim, set off, deduction or
defense based upon any claim Guarantor may have against Borrower
or Bank, and the obligations of Guarantor under this Guaranty
shall remain in full force and effect, without regard to, and
shall not be released, discharged or in any way modified or
affected by, any circumstance or condition (whether or not
Guarantor shall have any knowledge or notice thereof), including,
but not limited to, any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or similar
proceeding with respect to Borrower or its properties or its
creditors, or any action taken by any trustee or receiver or by
any court in any such proceeding.
7. In the event of any default by Borrower under the
Notes, Guarantor will pay, to the extent allowable by law to Bank
such further amount as shall be sufficient to reimburse fully Bank
for all of its costs and expenses of enforcing its rights and
remedies under the Notes, including, without limitation, Bank's
reasonable attorney's fees and court costs, and all of same shall
be evidenced by the Notes and this Guaranty.
8. This Guaranty shall be construed in accordance with
and governed by the laws of the Commonwealth of Kentucky, without
reference to its principles of conflicts of laws.
9. GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS GUARANTY, THE LOAN AGREEMENT OR ANY OTHER
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF BANK, BORROWER OR ANY
GUARANTOR. GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT TO BANK.
10. The Guarantor agrees that the sole proper venue for
the determination of any litigation commenced by either Guarantor
or Bank on any basis shall be in a court of competent jurisdiction
which is located in Fayette County, Kentucky, and the parties
hereby expressly declare that any other venue
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shall be improper and Guarantor expressly waives any right to a
determination of any such litigation against Guarantor by a court
in any other venue. Guarantor further agrees that service of
process by any judicial officer or by registered or certified U.S.
mail shall establish personal jurisdiction over Guarantor, and
Guarantor waives any rights under the laws of any state to object
to jurisdiction within the Commonwealth of Kentucky. The
aforesaid means of obtaining personal jurisdiction and perfecting
service of process are not intended to be exclusive, but are
cumulative and in addition to all other means of obtaining
personal jurisdiction and perfecting service of process now or
hereafter provided by the laws of the Commonwealth of Kentucky or
by any other state in an action brought by Bank in such state.
Provided, however, nothing herein shall in any way be deemed to
limit the ability of Bank to serve any writs, process or summons
in any other manner permitted by applicable law or to obtain
jurisdiction over Guarantor in such other jurisdictions and in
such manner as may be permitted by applicable law.
11. The undersigned does hereby agree and acknowledge that
the maximum aggregate liability of the Guarantor shall be the sum
of Four Million Four Hundred Fifty Thousand Dollars
($4,450,000.00), plus interest accruing on said amount, plus fees,
charges and costs of collecting the guaranteed indebtedness
(including reasonable attorneys fees).
12. This Guaranty shall terminate on June 30, 2000.
Provided, however, the undersigned acknowledges and agrees that
such termination shall not affect its liability with respect to:
(a) obligations created or incurred prior to such date (which
specifically includes the Notes), or (b) extensions or renewals
of, interest accruing on, or fees, costs or expenses incurred with
respect to such obligations (which specifically includes the
Notes), on or after such date.
13. If any payment made on the Notes shall be required to
be repaid or refunded by Bank as a result of any bankruptcy or
insolvency of Borrower or of Guarantor or by virtue of any claim
of preference, invalidity, unenforceability or right of
rescission, Guarantor hereby acknowledges and agrees that
Guarantor shall remain liable for the amount of such payment
refunded, to the extent provided herein, as if such payment had
never been made by Borrower or by Guarantor to Bank.
14. This Guaranty shall remain fully enforceable
irrespective of any claim, defense or counterclaim which Borrower
may or could assert as to the Notes, including, but not limited
to, failure of consideration, breach of warranty, payment, statute
of frauds, statute of limitations, fraud, bankruptcy, and usury,
all of which Guarantor hereby waives along with any standing by
Guarantor to assert any said claim, defense or counterclaim. This
Guaranty is in addition to and not in lieu of, nor does it
supercede, any prior Guaranties signed by Guarantor.
15. The Guarantor has, to its satisfaction, independently
investigated: (a) Borrower's credit history; (b) Borrower's
payment history with Bank; (c) Borrower's past, current and
projected financial condition; and (d) the sufficiency of any
collateral supporting Borrower's obligations under the Notes.
Guarantor represents and warrants that it has relied exclusively
on his own independent investigation of Borrower for its decision
to guarantee the Notes. Guarantor agrees that it has sufficient
knowledge of Borrower to make an informed decision about this
Guaranty, and that Bank has no duty or obligation to disclose any
information in its possession or control about Borrower to
Guarantor.
16. In the event that any one or more of the provisions
contained herein shall for any reason be held to be invalid,
illegal, or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other
provision hereof and this Guaranty shall be construed as if such
invalid, illegal or unenforceable provision had never been
contained herein.
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17. The provisions of this Guaranty shall be binding upon
the Guarantor and its, successors, and assigns and shall inure to
the benefit of the holder of the Notes, and its successors,
endorsees and assigns.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty
to be effective as of the date and year first above written.
UNIFIED FINANCIAL SERVICES, INC.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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TITLE: Chairman, CEO, President
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EXHIBIT "A"
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(a) a Revolving Credit Note dated as of December 30, 1997,
and made by Equity Insurance Managers, Inc. payable to the order
of Bank One in the original principal amount of $400,000.00;
(b) an Amended and Restated Term Note dated as of
February 18, 1999, and made by Equity Insurance Managers, Inc. and
Equity Underwriting Group, Inc. payable to the order of Bank One
in the original principal amount of $1,250,000.00;
(c) a Term Note dated as of February 18, 1999, and made by
Equity Insurance Managers, Inc. and Equity Underwriting Group,
Inc. payable to the order of Bank One in the original principal
amount of $800,000.00; and
(d) a Renewed Revolving Credit Note dated as of June 18,
1998, and made by Commonwealth Premium Finance Corporation payable
to the order of the Bank One in the original principal amount of
$2,000,000.00