1
Exhibit 10.32
COMMERCIAL GUARANTY
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PRINCIPAL LOAN DATE MATURITY LOAN NO CALL COLLATERAL ACCOUNT OFFICER INITIALS
4A 302 178
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References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item. Any item above
containing "***" has been omitted due to text length limitations.
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BORROWER: DYNACS INC, A DELAWARE CORPORATION, AUTHORIZED TO LENDER: FIRST NATIONAL BANK OF FLORIDA
DO BUSINESS IN FLORIDA AS DYNACS WORLDWIDE, INC MAIN OFFICE
00000 X X XXXXXXX 00 X #000 0000 XXXXXXXXX XXXXXX
XXXX XXXXXX, XX 00000 XXXXXXXXXX, XX 00000
(000) 000-0000
GUARANTOR: XXXXXXXX X XXXXX
000 XXXXXX XX
XXXX XXXXXX, XX 00000
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AMOUNT OF GUARANTY. THE AMOUNT OF THIS GUARANTY IS UNLIMITED.
CONTINUING UNLIMITED GUARANTY. FOR GOOD AND VALUABLE CONSIDERATION,
XXXXXXXX X XXXXX ("GUARANTOR") ABSOLUTELY AND UNCONDITIONALLY GUARANTEES
AND PROMISES TO PAY TO FIRST NATIONAL BANK OF FLORIDA ("LENDER") OR ITS
ORDER, ON DEMAND, IN LEGAL TENDER OF THE UNITED STATES OF AMERICA, THE
INDEBTEDNESS (AS THAT TERM IS DEFINED BELOW) OF DYNACS INC, A DELAWARE
CORPORATION, AUTHORIZED TO DO BUSINESS IN FLORIDA AS DYNACS WORLDWIDE, INC
("BORROWER") TO LENDER ON THE TERMS AND CONDITIONS SET FORTH IN THIS
GUARANTY. UNDER THIS GUARANTY, THE LIABILITY OF GUARANTOR IS UNLIMITED AND
THE OBLIGATIONS OF GUARANTOR ARE CONTINUING.
INDEBTEDNESS GUARANTEED. The indebtedness guaranteed by this Guaranty
includes any and all of Borrower indebtedness to Lender and is used in the
most comprehensive sense and means and includes any and all of Borrower's
liabilities, obligations and debts to Lender, now existing or hereinafter
incurred or created, including, without limitation, all loans, advances,
interest, costs, debts, overdraft indebtedness, credit card indebtedness,
lease obligations, other obligations, and liabilities of Borrower, or any
of them, and any present or future judgments against Borrower, or any of
them; and whether any such indebtedness is voluntarily or involuntarily
incurred, due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined; whether Borrower may be liable
individually or jointly with others, or primarily or secondarily, or as
guarantor or surety; whether recovery on the indebtedness may be or may
become barred or unenforceable against Borrower for any reason whatsoever;
and whether the indebtedness arises from transactions which may be
voidable on account of infancy, insanity, ultra xxxxx, or otherwise.
DURATION OF GUARANTY. This Guaranty will take effect when received by
Lender without the necessity of any acceptance by Lender, or any notice to
Guarantor or to Borrower, and will continue in full force until all
indebtedness incurred or contracted before receipt by Lender of any notice
of revocation shall have been fully and finally paid and satisfied and all
Guarantor's other obligations under this Guaranty shall have been performed
in full. If Guarantor elects to revoke this Guaranty, Guarantor may
only do so in writing. Guarantor's written notice of revocation must be
mailed to Lender, by certified mail, at Lender's address listed above or
such other place as Lender may designate in writing. Written revocation of
this Guaranty will apply only to advances or new indebtedness created after
actual receipt by Lender of Guarantor's written revocation. For this
purpose and without limitation, the term "new indebtedness" does not
include indebtedness which at the time of notice of revocation is
contingent, unliquidated, undetermined or not due and which later becomes
absolute, liquidated, determined or due. This Guaranty will continue to
bind Guarantor for all indebtedness incurred by Borrower or committed by
Lender prior to receipt of Guarantor's written notice of revocation,
including any extensions, renewals, substitutions or modifications of the
indebtedness. All renewals, extensions, substitutions, and modifications of
the indebtedness granted after Guarantor's revocation, are contemplated
under this Guaranty and, specifically will not be considered to be new
indebtedness. This Guaranty shall bind Guarantor's estate as to
indebtedness created both before and after Guarantor's death or incapacity,
regardless of Lender's actual notice of Guarantor's death. Subject to the
foregoing, Guarantor's executor or administrator or other legal
representative may terminate this Guaranty in the same manner in which
Guarantor might have terminated it and with the same effect. Release of
any other guarantor or termination of any other guaranty of the
indebtedness shall not affect the liability of Guarantor under this
Guaranty. A revocation Lender receives from any one or more Guarantors
shall not affect the liability of any remaining Guarantors under this
Guaranty. IT IS ANTICIPATED THAT FLUCTUATIONS MAY OCCUR IN THE AGGREGATE
AMOUNT OF INDEBTEDNESS COVERED BY THIS GUARANTY, AND GUARANTOR SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT REDUCTIONS IN THE AMOUNT OF INDEBTEDNESS, EVEN
TO ZERO DOLLARS ($0.00), PRIOR TO GUARANTOR'S WRITTEN REVOCATION OF THIS
GUARANTY SHALL NOT CONSTITUTE A TERMINATION OF THIS GUARANTY. THIS GUARANTY
IS BINDING UPON GUARANTOR AND GUARANTOR'S HEIRS, SUCCESSORS AND ASSIGNS SO
LONG AS ANY OF THE GUARANTEED INDEBTEDNESS REMAINS UNPAID AND EVEN THOUGH
THE INDEBTEDNESS GUARANTEED MAY FROM TIME TO TIME BE ZERO DOLLARS ($0.00).
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either
before or after any revocation hereof, WITHOUT NOTICE OR DEMAND AND
WITHOUT LESSENING GUARANTOR'S LIABILITY UNDER THIS GUARANTY, FROM TIME TO
TIME: (A) prior to revocation as set forth above, to make one or more
additional secured or unsecured loans to Borrower, to lease equipment or
other goods to Borrower, or otherwise to extend additional credit to
Borrower; (B) to alter, compromise, renew, extend, accelerate, or
otherwise change one or more times the time for payment or other terms of
the indebtedness or any part of the indebtedness, including increases and
decreases of the rate of interest on the indebtedness; extensions may be
repeated and may be for longer than the original loan term; (C) to take
and hold security for the payment of this Guaranty or the indebtedness,
and exchange, enforce, waive, subordinate, fail or decide not to perfect,
and release any such security, with or without the substitution of new
collateral; (D) to release, substitute, agree not to xxx, or deal with any
one or more of Borrower's sureties, endorsers, or other guarantors on any
terms or in any manner Lender may choose; (E) to determine how, when and
what application of payments and credits shall be made on the indebtedness
(F) to apply such security and direct the order or manner of sale thereof,
including without limitation, any nonjudicial sale permitted by the terms
of the controlling security agreement or deed of trust, as Lender in its
discretion may determine; (G) to sell, transfer, assign or grant
participations in all or any part of the indebtedness; and (H)
to assign or transfer this Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and
warrants to Lender that (A) no representations or agreements of any kind
have been made to Guarantor which would limit or qualify in any way the
terms of this Guaranty; (B) this Guaranty is executed at Borrower's
request and not at the request of Lender; (C) Guarantor has full power,
right and authority to enter into this Guaranty; (D) the provisions of
this Guaranty do not conflict with or result in a default under any
agreement or other instrument binding upon Guarantor and do not result in
a violation of any law, regulation, court decree or order applicable to
Guarantor; (E) Guarantor has not and will not, without the prior written
consent of Lender, sell, lease, assign, encumber, hypothecate, transfer,
or otherwise dispose of all or substantially all of Guarantor's assets, or
any interest therein; (F) upon Lender's request, Guarantor will provide to
Lender financial and credit information in form acceptable to Lender, and
all such financial information which currently has been, and all future
financial information which will be provided Lender is and will be true
and correct in all material respects and fairly present Guarantor's
financial condition as of the dates the financial information is provided;
(G) no material adverse change has occurred in Guarantor's financial
condition since the date of the most recent financial statements provided
to Lender and no event has occurred which may materially adversely affect
Guarantor's financial condition; (H) no litigation, claim, investigation,
administrative proceeding or similar action (including those for unpaid
taxes) against Guarantor is pending or threatened; (I) Lender has made no
representation to Guarantor as to the creditworthiness of Borrower; and
(J) Guarantor has established adequate means of obtaining from Borrower on
a continuing basis information regarding Borrower's financial condition.
Guarantor agrees to keep adequately informed from such means of any facts,
events, or circumstances which might in any way affect Guarantor's risks
under this Guaranty, and Guarantor further agrees that, absent a request
for information, Lender shall have no obligation to disclose to Guarantor
any information or documents acquired by Lender in the course of its
relationship with Borrower.
GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with
the following:
(A) ANNUAL STATEMENTS. As soon as available after the end of each
fiscal year, Guarantor's balance sheet and income statement for the
year ended, prepared by Guarantor in form satisfactory to Lender.
(B) TAX RETURNS. As soon as available after the applicable filing date
for the tax reporting period ended, Federal and other governmental tax
returns, prepared by a tax professional satisfactory to Lender.
All financial reports required to be provided under this Guaranty shall
be prepared in accordance with GAAP, applied on a consistent basis, and
certified by Guarantor as being true and correct.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor
waives any right to require Lender (A) to continue lending money or to
extend other credit to Borrower; (B) to make any presentment, protest,
demand, or notice of any kind, including notice of any nonpayment of the
indebtedness or of any nonpayment related to any collateral, or notice of
any action or nonaction on the part of Borrower, Lender, any surety,
endorser, or other guarantor in connection with the indebtedness or in
connection with the creation of new or additional loans or obligations; (C)
to resort for payment or to proceed directly or at once against any person,
including Borrower or any other guarantor; (D) to proceed directly against
or exhaust any collateral held by Lender from Borrower, any other
guarantor, or any other person; (E) (F) to pursue any other remedy within
Lender's power; or (G) to commit any act or omission of any kind, or at any
time, with respect to any matter whatsoever.
In addition to the waivers set forth above, if now or hereafter Borrower is
or shall become insolvent and the indebtedness shall not at all times until
paid be fully secured by collateral pledged by Borrower, Guarantor hereby
forever waives and gives up in favor of Lender and Borrower, and Lender's
and Borrower's respective successors, any claim or right to payment
Guarantor may now have or hereafter have or acquire against Borrower, by
subrogation or otherwise, so that at no time shall Guarantor be or become a
"creditor" of Borrower within the meaning of 11 U.S.C. section 547(b), or
any successor provision of the Federal bankruptcy laws.
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COMMERCIAL GUARANTY PAGE 2
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Guarantor also waives any and all rights or defenses arising by reason of (A)
any "one action" or "anti-deficiency" law or any other law which may prevent
Lender from bringing any action, including a claim for deficiency, against
Guarantor, before or after Lender's commencement or completion of any
foreclosure action, either judicially or by exercise of a power of sale; (B) any
election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement, including without limitation, any loss of rights Guarantor
may suffer by reason of any law limiting, qualifying, or discharging the
indebtedness; (C) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower's
liability from any cause whatsoever, other than payment in full in legal tender,
of the indebtedness; (D) any right to claim discharge of the indebtedness on the
basis or unjustified impairment of any collateral for the indebtedness; (E) any
statute of limitations, if at any time any action or suit brought by Lender
against Guarantor is commenced there is outstanding indebtedness of Borrower to
Lender which is not barred by any applicable statute of limitations; or (F) any
defenses given to guarantors at law or in equity other than actual payment and
performance of the indebtedness. If payment is made by Borrower, whether
voluntarily or otherwise, or by any third party, on the indebtedness and
thereafter Lender is forced to remit the amount of that payment to Borrower's
trustee in bankruptcy or to any similar person under any federal or state
bankruptcy law or law for the relief of debtors, the indebtedness shall be
considered unpaid for the purpose of the enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any
deductions to the amount guaranteed under this Guaranty for any claim of setoff,
counterclaim, counter demand, recoupment or similar right, whether such claim,
demand or right may be asserted by the Borrower, the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by law or public policy.
RIGHT OF SETOFF. Guarantor grants to Lender a contractual security interest in
all Guarantor's accounts with Lender (whether checking, savings, or some other
account). This includes all accounts Guarantor holds jointly with someone else
and all accounts Guarantor may open in the future. However, this does not
include any XXX or Xxxxx accounts, or any trust accounts for which the grant of
a security interest would be prohibited by law. Guarantor authorizes Lender, to
the extent permitted by applicable law, to hold these funds if there is a
default, and Lender may apply the funds in these accounts to pay what Guarantor
owes under the terms of this Guaranty.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the
indebtedness of Borrower to Lender, whether now existing or hereafter created,
shall be superior to any claim that Guarantor may now have or hereafter acquire
against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby
expressly subordinates any claim Guarantor may have against Borrower, upon any
account whatsoever, to any claim that Lender may now or hereafter have against
Borrower. In the event of insolvency and consequent liquidation of the assets of
Borrower, through bankruptcy, by an assignment for the benefit of creditors, by
voluntary liquidation, or otherwise, the assets of Borrower applicable to the
payment of the claims of both Lender and Guarantor shall be to Lender and
shall be first applied by Lender to the indebtedness of Borrower to Lender.
Guarantor does hereby assign to Lender all claims which it may have or acquire
against Borrower or against any assignee or trustee in bankruptcy of Borrower
provided however, that such assignment shall be effective only for the purpose
of assuring to Lender full payment in legal tender of the indebtedness. If
Lender so requests, any notes or credit agreements now or hereafter evidencing
any debts or obligations of Borrower to Guarantor shall be marked with a legend
that the same are subject to this Guaranty and shall be delivered to Lender.
Guarantor agrees, and Lender is hereby authorized, in the name of Guarantor,
from time to time to execute and file financing statements and continuation
statements and to execute such other documents and to take such other actions as
Lender deems necessary or appropriate to perfect, preserve and enforce its
rights under this Guaranty.
GARNISHMENT. Guarantor consents to the issuance of a continuing writ of
garnishment or attachment against Guarantor's disposable earnings, in accordance
with Section 222.11, Florida Statutes, in order to satisfy, in whole or in part,
any money judgment entered in favor of Lender.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty:
AMENDMENTS. This Guaranty, together with any Related Documents, constitutes
the entire understanding and agreement of the parties as to the matters set
forth in this Guaranty. No alteration of or amendment to this Guaranty
shall be effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or amendment.
ATTORNEYS' FEES; EXPENSES. Guarantor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's reasonable attorneys' fees
and Lender's legal expenses, incurred in connection with the enforcement
of this Guaranty. Costs and expenses include Lender's reasonable
attorneys' fees and legal expenses whether or not there is a lawsuit,
including reasonable attorneys' fees and legal expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection
services. Guarantor also shall pay all court costs and such additional
fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Guaranty are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Guaranty.
GOVERNING LAW. THIS GUARANTY WILL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF FLORIDA. THIS
GUARANTY HAS BEEN ACCEPTED BY LENDER IN THE STATE OF FLORIDA.
CHOICE OF VENUE. If there is a lawsuit, Guarantor agrees upon Lender's
request to submit to the jurisdiction of the courts of Pinellas County,
State of Florida.
INTEGRATION. Guarantor further agrees that Guarantor has read and fully
understands the terms of this Guaranty; Guarantor has had the opportunity
to be advised by Guarantor's attorney with respect to this Guaranty; the
Guaranty fully reflects Guarantor's intentions and parol evidence is not
required to interpret the terms of this Guaranty. Guarantor hereby
indemnifies and holds Lender harmless from all losses, claims, damages, and
costs (including Lender's attorneys' fees) suffered or incurred by Lender
as a result of any breach by Guarantor of the warranties, representations
and agreements of this paragraph.
INTERPRETATION. In all cases where there is more than one Borrower or
Guarantor, then all words used in this Guaranty in the singular shall be
deemed to have been used in the plural where the context and construction
so require; and where there is more than one Borrower named in this
Guaranty or when this Guaranty is executed by more than one Guarantor, the
words "Borrower" and "Guarantor" respectively shall mean all and any one
or more of them. The words "Guarantor," "Borrower," and "Lender" include
the heirs, successors, assigns, and transferees of each of them. If a
court finds that any provision of this is not valid or should not be
enforced, that fact by itself will not mean that the rest of this Guaranty
will not be valid or enforced. Therefore, a court will enforce the rest of
the provisions of this Guaranty even if a provision of this Guaranty may
be found to be invalid or unenforceable. If any one or more of Borrower or
Guarantor are corporations, partnerships, limited liability companies, or
similar entities, it is not necessary for Lender to inquire into the
powers of Borrower or Guarantor or of the officers, directors, partners,
managers, or other agents acting or purporting to act on their behalf, and
any Loan indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed under this Guaranty.
NOTICES. Any notice required to be given under this Guaranty shall be
given in writing, and, except for revocation notices by Guarantor, shall
be effective when actually delivered, when actually received by
telefacsimile (unless otherwise required by law), when deposited with a
nationally recognized overnight courier, or, if mailed, when deposited in
the United States mail, as first class, certified or registered mail
postage prepaid, directed to the addresses shown near the beginning of
this Guaranty. All revocation notices by Guarantor shall be in writing and
shall be effective upon delivery to Lender as provided in the section of
this Guaranty entitled "DURATION OF GUARANTY." Any party may change its
address for notices under this Guaranty by giving written notice to the
other parties, specifying that the purpose of the notice is to change the
party's address. For notice purposes, Guarantor agrees to keep Lender
informed at all times of Guarantor's current address. Unless otherwise
provided or required by law, if there is more than one Guarantor, any
notice given by Lender to any Guarantor is deemed to be notice given to
all Guarantors.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights
under this Guaranty unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Guaranty shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Guaranty. No prior waiver by
Lender, nor any course of dealing between Lender and Guarantor, shall
constitute a waiver of any of Lender's rights or of any of Guarantor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Guaranty, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Lender.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Guaranty
on transfer of Guarantor's interest, this Guaranty shall be binding upon
and inure to the benefit of the parties, their successors and assigns.
WAIVE JURY. Lender and Guarantor hereby waive the right to any jury trial
in any action, proceeding, or counterclaim brought by either Lender or
Borrower against the other.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Guaranty. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money
of the United States of America. Words and terms used in the singular shall
include the plural, and the plural shall include the singular, as the context
may require. Words and terms not otherwise defined in this
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COMMERCIAL GUARANTY PAGE 3
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Guaranty shall have the meanings attributed to such terms in the Uniform
Commercial Code:
BORROWER. The word "Borrower" means Dynacs Inc, a Delaware Corporation,
authorized to do business in Florida as Dynacs Worldwide, Inc, and all
other persons and entities signing the Note in whatever capacity.
GAAP. The word "GAAP" means generally accepted accounting principles.
GUARANTOR. The word "Guarantor" means each and every person or entity
signing this Guaranty, including without limitation Xxxxxxxx X Xxxxx.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
INDEBTEDNESS. The word "Indebtedness" means Borrower's indebtedness to
Lender as more particularly described in this Guaranty.
LENDER. The word "Lender" means First National Bank of Florida, its
successors and assigns.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection with
the indebtedness.
GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS COMMERCIAL
GUARANTY AND GUARANTOR AGREES TO ITS TERMS. THIS COMMERCIAL GUARANTY IS DATED
JULY 7, 2000.
GUARANTOR:
/s/ X X XXXXX
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XXXXXXXX X XXXXX, INDIVIDUALLY
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STATE OF GEORGIA
COUNTY OF XXXXXXX
Before me, the undersigned, a Notary Public in and for the State aforesaid,
personally appeared Xxxxx Xxxxxxxx, Assistant Vice President of First National
Bank of Florida ("Bank") and Xxxxxxxx X. Xxxxx (hereafter "Guarantor"), who,
being by me first duly sworn, stated:
I. On the date hereof, the Guarantor executed the foregoing attached
Commercial Guaranty (the "Guraanty") in favor of Bank at Xxxxxxxxxx
International Airport in Xxxxxxx County, Georgia.
II. The Guarantor personally delivered the Guaranty to Bank and Bank
accepted the Promissory Note on the date hereof at Xxxxxxxxxx International
Airport in Xxxxxxx County, Georgia.
DATED this 7th day of July, 2000.
/s/ X X XXXXX
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Xxxxxxxx X. Xxxxx, Guarantor
FIRST NATIONAL BANK OF FLORIDA
By:
/s/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx, Assistant Vice President
Sworn to and subscribed before
me on this 7th day of July, 2000.
/s/ XXXXXX X. XXXXXXXXXX
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Notary Public
Print Name: Xxxxxx X. Xxxxxxxxxx
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State and County Aforesaid
My Commission Expires: Notary Public, Xxxxxxx County, Georgia
My Commission Expires March 8, 2003
