Exhibit 99.3
GUARANTY OF PROMISSORY NOTE
WHEREAS, XXXXXXXX, INC., a Delaware corporation (hereinafter referred to
as the "Guarantor"), agrees to guarantee that certain Promissory Note, dated
July 6, 2004, between its subsidiary, XXXXXXXX ACQUISITION CORP., INC., a
Delaware corporation, as "Maker" therein, and X. X. XXXXXXX CO., a Georgia
corporation, as "Holder" therein (the "Note"); and
WHEREAS, the Holder has refused to enter into the Note unless the
Guarantor guaranties the Note in the manner herein set forth; and
WHEREAS, Guarantor, as the Maker's parent company, is receiving a valuable
benefit through the Note.
NOW, THEREFORE, to induce the Holder to enter into the Note, together
with other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Guarantor hereby agrees as follows:
1. This Guaranty Of Promissory Note is subject in all respects to the
terms and conditions set forth and in that certain Subordination Agreement dated
as of July 6, 2004 by and between X.X. Xxxxxxx Co, a Georgia corporation (the
"Secured Party") and Union Bank of California, N.A.
2. (a) The Guarantor unconditionally guaranties to the Holder and the
successors and assigns of the Holder the full and punctual payment, performance,
and observance, by the Maker, of all the terms, covenants and conditions in the
Note contained on Maker's part to be paid, performed or observed.
(b) If, at any time, default shall be made by the Maker in the
performance or observance of any of the terms, covenants and conditions in the
Note contained on the Maker's
part to be kept, performed or observed, the Guarantor will keep, perform and
observe the same, as the case may be, in place and stead of the Maker.
(c) This is a guaranty of payment, performance, and observance and
not merely of collection. The liability of the Guarantor under this Guaranty
shall be direct and immediate and not conditional or contingent upon the pursuit
of any remedies against the Maker or any other person, nor against securities or
liens available to the Holder, its successors, successors-in-title, endorsees,
or assigns.
3. Any act of the Holder, or the successors or assigns of the Holder,
consisting of a waiver of any of the terms or conditions of the Note, or the
giving of any consent to any manner or thing relating to the Note, or the
modification of the Note, may be done without releasing the obligations of the
Guarantor hereunder.
4. The obligations of the Guarantor hereunder shall not be released by
Holder's receipt, application or release of security given for the performance
and observance of covenants and conditions in the Note contained on Maker's part
to be performed or observed; nor by any modification of the Note, but in case of
any such modification the liability of the Guarantor, shall be deemed modified
in accordance with the terms of any such modification of the Note.
5. The Guarantor hereby waives to the fullest extent possible and as
against the Maker and its assets any and all rights, whether at law, in equity,
by agreement or otherwise, to subrogation, indemnity, reimbursement,
contribution, or any other similar claim, cause of action or remedy that
otherwise would arise out of the Guarantor's performance of its obligations to
the Holder under this Guaranty. The preceding waiver is intended by both the
Guarantor and the Maker to be for the benefit of the Holder, and the waiver
shall be enforceable by any of Holder's
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heirs, successors or assigns as an absolute defense to any action by the
Guarantor against the Maker or its assets which arises out of the Guarantor's
having made any payment to the Holder with respect to any of the Maker's
liabilities guarantied hereunder. If any amount shall be paid to the Guarantor
on account of such subrogation or other rights at any time, such amount shall be
held in trust for the benefit of the Guarantor and shall forthwith be paid to
the Guarantor to be credited and applied to payment of the obligations
guaranteed hereby whether matured or unmatured, in accordance with the terms
hereof.
6. This Guaranty shall apply to the Note, any extension or renewal thereof
and to any holdover term following the term thereby granted or any extension or
renewal thereof.
7. This instrument may not be changed, modified, discharged or terminated
orally or in any manner other than by an agreement in writing signed by the
Guarantor and the Holder.
8. The parties agree that this Guaranty is governed by the laws of the
State of Georgia and that its enforcement shall be in Superior Court of the
County of Muscogee, State of Georgia, the venue and jurisdiction of which the
parties do hereby consent to.
IN WITNESS WHEREOF, Guarantor has duly executed this 6th day of July, 2004
GUARANTOR:
XXXXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Title: CEO
Attest: /s/ Xxxxxx Xxxxx
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Title: Corporate Secretary
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