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Techdyne - Unconditional Guaranty
UNCONDITIONAL AND CONTINUING GUARANTY
OF PAYMENT AND PERFORMANCE
THIS GUARANTY ("Guaranty") is made as of the 29th day of December, 1997, by MEDICORE, INC., a Florida corporation (the "Guarantor") in favor of BARNETT BANK, N.A., a national banking association ("Lender").
R E C I T A L S :
A. Lender has agreed to make a revolving credit loan facility avail- able to Techdyne, Inc., a Florida corporation ("Borrower"), in the aggre- gate principal amount at any one time outstanding of $1,600,000 (all loans now or hereafter made under such facility are collectively called the "Loans").
B. The Loans shall be evidenced by a Revolving Promissory Note of even date herewith executed by Borrower to the order of Lender (as same may be amended, modified, extended or renewed from time to time, without the necessity of notice to or the consent of the Guarantor, the "Note").
C. The Loans are to be made pursuant to, and are secured by, among other documents, a Loan and Security Agreement dated February 8, 1996 between Borrower and Barnett Bank of South Florida, N.A., as amended by a First Amendment to Loan and Security Agreement, Loan Agreement, and Security Agreement dated July 31, 1997, and Second Amendment to Loan Agreement of even date herewith between Borrower and Lender (as so amended and as the same may be amended, modified, extended or renewed from time to time, without the necessity of notice to or the consent of the Guarantor, the "Loan Agreement").
D. Lender may from time to time issue and renew banker's acceptances at the request of the Borrower under or in connection with the Loan Agree- ment (all such banker's acceptances, as the same may be amended, modified, extended or renewed from time to time, without the necessity of notice to or the consent of the Guarantor, are collectively called the "Banker's Acceptances"). All agreements and other documents from time to time executed in connection with the Banker's Acceptances or any of them, as such agreements and other documents may be amended, modified, extended or renewed from time to time, without the necessity of notice to or the consent of the Guarantor, are collectively called the "Acceptance Agree- ments".
E. The Borrower is a subsidiary of Guarantor, and accordingly, the Guarantor will benefit from the Loans, the issuance of the Banker's Accep- tances and all transactions relating thereto.
F. Lender would not make the Loans or issue any Banker's Acceptances solely upon the covenants of the Borrower under the Note, Loan Agreement, Acceptance Agreements and other loan documents, but requires, as further security therefor, an unconditional and irrevocable guaranty of payment and performance respecting the Loans and the Acceptance Agreements from Guarantor.
NOW, THEREFORE, in consideration of the premises, and to induce Lender to make the Loans and to issue the Banker's Acceptances, and in considera- tion thereof, Guarantor guarantees and agrees as follows:
1. Recitations. Each and all of the foregoing recitals are true
----------- and correct and are incorporated herein by reference.
2. Capitalized Terms. All capitalized terms utilized in this
----------------- Guaranty, unless specifically otherwise defined herein, shall have the meanings assigned to such terms in the Loan Agreement.
3. Guaranty. Guarantor hereby absolutely, irrevocably and uncondi-
-------- tionally guarantees (as primary obligor and not merely as sureties) to Lender and its successors and assigns the full and prompt payment (whether at stated maturity, by acceleration, or otherwise) and performance of the "Obligations" as hereinafter defined. "Obligations" shall mean:
(a) All "Obligations" as such term is defined in the Loan
Agreement;
(b) All principal, interest, attorneys' fees, loan fees, liabil-
ities for costs and expenses and all other indebtedness, obligations
and liabilities of Borrower to Lender at any time created or arising
under or in connection with the Loans, the Banker's Acceptances, the
Note, Loan Agreement, Acceptance Agreements, or any other document
now or hereafter executed in connection with the Loans or the Banker's
Acceptances (or any of them) or as security for the Loans or any of
the Banker's Acceptances or any amendment, extension, renewal, or
modification thereto or substitution therefor (which may be made with
out notice to or the consent of the Guarantor). The Loan Agreement,
Note, Acceptance Agreements and all other documents evidencing,
securing or otherwise relating to the Loans, the Banker's Acceptances
or any of them, whether now or hereafter existing, as the same may be
amended, modified, extended or renewed from time to time, without the
necessity of notice to or the consent of the Guarantor, are sometimes
collectively called the "Loan Documents";
(c) All agreements, covenants, indemnities, terms, conditions,
and other obligations to be performed by, or on behalf of, Borrower
under the Loan Documents; and
(d) All costs, expenses and fees, including but not limited to
court costs and attorneys' fees, arising in connection with, or as a
consequence of the non-payment, non-performance or non-observance of
all amounts, indebtedness, obligations and liabilities of Borrower to
Lender described in items (a), (b) and (c) of this Section 3.
Upon payment and performance in full of the Obligations and the termination of any further liability of Lender under the Loan Documents and the Banker's Acceptances, this Guaranty shall terminate, subject, however, to reinstatement pursuant to Section 10 below if any payment made with respect to the Obligations is rescinded or must otherwise be restored or returned by Lender.
4. Guaranty of Payment. This is an irrevocable, absolute, contin-
------------------- uing guaranty of payment (inter alia) and not a guaranty of collection and is in no way conditioned or contingent upon any attempt to collect from or enforce performance or compliance by the Borrower or upon any other event, contingency or circumstance whatsoever. If for any reason the Borrower shall fail or be unable duly, punctually and fully to pay and perform the Obligations as and when the same shall become due, the Guarantor, without demand, presentment, protest or notice of any kind, will forthwith pay or perform the Obligations in accordance with the terms of such Loan Documents. All such payments shall be made in lawful money of the United States and at the place specified in the Note, with interest thereon until paid at the rate set forth in the Loan
Documents. The Guarantor, promptly after demand, will pay to the Lender the reasonable costs and expenses of collecting such amounts or otherwise enforcing this Guaranty, including, without limitation, the reasonable fees and expenses of counsel (before trial, at trial, at all appellate levels, in bankruptcy, and otherwise). Guarantor waives any right to require that any action be brought against Borrower or any other person or to require that resort be made to any security and Lender may, at its option, proceed against the Guarantor in the first instance to collect any monies the payment of which is guaranteed hereby, without first proceeding against Borrower or any other person and without first resorting to any security held by it as collateral or to any other remedies. The liability of the Guarantor hereunder shall be in no way affected or impaired by an acceptance by Lender of any security for, or other guarantors upon, any indebtedness, liability or obligation of Borrower to the Lender, or by any failure, delay, neglect or omission by Lender to realize upon or protect any such indebtedness, liability or obligation or any notes or other instruments evidencing same or any collateral or security therefor.
5. Obligations of Guarantor Unconditional. The obligations of the
-------------------------------------- Guarantor under this Guaranty shall be primary, absolute and unconditional obligations of the Guarantor, shall not be subject to any counterclaim, set-off, deduction, diminution, abatement, recoupment, suspension, defer- ment, reduction or defense based upon any claim the Guarantor or any other person may have against the Borrower, the Lender or any other person, and shall remain in full force and effect without regard to, and shall not be released, discharged or in any way affected by, any circumstance, contin- gency or condition whatsoever (whether or not the Guarantor, the Borrower or the Lender shall have any knowledge or notice thereof and whether occurring prior to or after the date of this Guaranty), including, without limitation:
(a) Any termination (other than by payment in full, subject to
the provisions of Section 10 below), amendment or modification of or
deletion from or addition or supplement to or other change, modifica-
tion, extension, substitution or renewal of any of the Loan Documents
or any other instrument or agreement applicable to any of the parties
to any of the Loan Documents;
(b) Any furnishing or acceptance of any security, or any release
of any security, for the Obligations, or the failure of any security
or the failure of any person to perfect any interest in any collateral;
(c) Any failure, omission or delay on the part of the Borrower
to conform or comply with any term of any of the Loan Documents or any
other instrument or agreement referred to in subsection (a) above,
including, without limitation, failure to give notice to the Guarantor
of the occurrence of a default under any Loan Document;
(d) Any waiver of the payment, performance or observance of any
of the obligations, conditions, covenants or agreements contained in
any Loan Document or any other waiver, consent, extension, indulgence,
compromise, settlement, release or other action or inaction under or
in respect of any of the Loan Documents or any other instrument or
agreement referred to in subsection (a) above, or any obligation or
liability of the Borrower, or any exercise or non-exercise of any
right, remedy, power or privilege under or in respect of any such
instrument or agreement or any such obligation or liability;
(e) Any failure, omission or delay on the part of the Lender to
enforce, assert or exercise any right, power or remedy conferred on
it in this Guaranty, or any such
failure, omission or delay on the part of the Lender in connection
with any Loan Document or any other action or inaction on the part of
the Lender;
(f) Any voluntary or involuntary bankruptcy, insolvency, reor-
ganization, arrangement, readjustment, assignment for the benefit of
creditors, composition, receivership, conservatorship, custodianship,
liquidation, marshalling of assets and liabilities or similar pro-
ceedings with respect to the Borrower, the Guarantor or any other
person or any of their respective properties or creditors, or any
action taken by any trustee or receiver or by any court in any such
proceeding;
(g) Any limitation on the liability or obligations of the
Borrower or any other person under any of the Loan Documents or any
discharge, termination or cancellation (other than by payment in
full), frustration, irregularity, invalidity or unenforceability, in
whole or in part, of any of the Loan Documents or any other agreement
or instrument referred to in subsection (a) above or any term hereof;
(h) Any merger or consolidation of the Borrower or the Guarantor
into or with any other corporation, or any sale, lease or transfer or
any of the assets of the Borrower or the Guarantor to any other person;
(i) Any change in the relationship between the Borrower and the
Guarantor or any termination of such relationship;
(j) Any law, regulation, or decree now or hereafter in effect in
any jurisdiction which might in any manner affect any of the Obliga
tions or the rights of Lender with respect thereto;
(k) Any release or discharge, by operation of law, of the
Guarantor from the performance or observance of any particular obli-
gation, covenant or agreement contained in this Guaranty;
(l) Any counterclaim, defense, reduction or set-off the Borrower
may have with respect to any of the Obligations; or
(m) Any other occurrence, circumstance, happening or event what-
soever, whether similar or dissimilar to the foregoing, whether
foreseen or unforeseen, and any other circumstance which might other-
wise constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or which might otherwise limit
recourse against the Guarantor.
6. Full Recourse Obligations. The obligations and liabilities of
------------------------- the Guarantor set forth herein constitute the full recourse obligations of the Guarantor enforceable against the Guarantor to the full extent of all its assets and properties.
7. Waiver. The Guarantor unconditionally waives, to the fullest
------ extent permitted by applicable law:
(a) Notice of acceptance of this Guaranty by Lender, or of the
creation, renewal or accrual of any liability of Borrower, present or
future, or of the reliance of Lender upon this Guaranty (it being
understood that every indebtedness, liability and obligation
of Borrower to Lender shall conclusively be presumed to have been
created, contracted or incurred in reliance upon this Guaranty);
(b) Notice of any of the matters referred to in Section 5;
(c) Notice to the Guarantor of the incurrence of any of the
Obligations, notice to the Guarantor or the Borrower of any breach or
default by the Borrower with respect to any of the Obligations, notice
of acceleration or intent to accelerate, or any other notice that may
be required, by statute, rule of law or otherwise, to preserve any
rights of the Lender against the Borrower or the Guarantor;
(d) Presentment to or demand of payment from the Borrower, the
Guarantor or any other person with respect to the Note or protest for
nonpayment or dishonor;
(e) Any right to require Lender to enforce, assert or exercise
any right, power, privilege or remedy conferred in any Loan Document
or otherwise and notice of Lender's exercise of any such right,
privilege or remedy;
(f) Any requirement of diligence on the part of the Lender;
(g) Any requirement to exhaust any remedies or to mitigate the
damages resulting from any default under any Loan Document;
(h) Defense of the statute of limitations in any action here-
under or for the collection of any indebtedness or the performance of
any Obligations hereby guaranteed; and any defense arising by virtue
of (i) the lack of authority of the Borrower or any other person, or
(ii) the failure of Lender to file or enforce a claim of any kind;
(i) Any notice of sale, transfer or other disposition of any
right, title to or interest in the Loan Documents by the Lender;
(j) Any duty on the part of Lender to disclose to Guarantor any
facts which Lender may now or hereafter know about Borrower, regard-
less of whether Lender has reason to believe that any such facts
materially increase the risk beyond that which the Guarantor intends
to assume, has reason to believe that such facts are unknown to
Guarantor or has a reasonable opportunity to communicate such facts
to Guarantor, it being understood and agreed the Guarantor is fully
responsible for being and keeping informed of the financial condition
of Borrower and of all circumstances bearing on the risk of non-payment
of all Obligations hereby guaranteed; and
(k) Any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge, release or defense of a
guarantor or surety or which might otherwise limit recourse against
the Guarantor.
8. Waiver of Subrogation. The Guarantor hereby irrevocably and
--------------------- forever waives any claim, remedy or right which the Guarantor may now have or hereafter acquire against the Borrower that arises hereunder and/or as a result of the payment or performance by the Guarantor under this Guaranty, including, without limitation, any claim, remedy or right of subrogation, reimbursement, exoneration, indemnification, or participation in any claim, remedy or right of Lender against the Borrower or any security which Lender now has or hereafter acquires, whether
or not such claim, remedy or right arises in equity, under contract, by statute, under common law or otherwise.
9. Consent to Extensions, Renewals and Releases. Guarantor hereby
-------------------------------------------- agrees that Lender may, from time to time, before or after any default by Borrower, with or without further notice to or assent from the Guarantor, without in any manner affecting the liability of Guarantor, and upon such terms and conditions as it may deem advisable: (a) extend in whole or in part (by renewal or otherwise), modify, accelerate, change or release any indebtedness, liability or obligation of Borrower or of any other person liable for any indebtedness, liability or obligation of Borrower, or waive any default with respect thereto; (b) sell, release, surrender, modify, impair, exchange, substitute or (if a chose or choses in action) extend the duration or the time for performance or payment of any and all property, of any nature and from whomsoever received, held by Lender as security for the payment or performance of any indebtedness, liability or obligation of Borrower to Lender; and (c) settle, adjust or compromise any claim of Lender against Borrower or any other person liable for any indebtedness, liability or obligation of Borrower. Guarantor hereby rati- fies and confirms any such extension, renewal, change, release, waiver, surrender, exchange, modification, impairment, substitution, settlement, adjustment or compromise and agree that the same shall be binding upon Guarantor, and Guarantor hereby expressly waives any and all defenses, counterclaims or offsets which Guarantor might or could have by reason thereof, it being understood that Guarantor shall at all times be bound by this Guaranty and remain fully liable to Lender hereunder.
10. Effect of Bankruptcy Proceedings, etc. 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 sums due to the Lender pursuant to the terms of any Loan Document is rescinded or must otherwise be restored or returned by the Lender upon the insolvency, bank- ruptcy, dissolution, liquidation or reorganization of the Borrower or any other person, or upon or as a result of the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to the Borrower or other person or any substantial part of its property, or other- wise, all as though such payment had not been made. If an event permitting the acceleration of the maturity of the principal amount of the Note or any of the obligations of Borrower under the Acceptance Agreements shall at any time have occurr...
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