Xxxxx Xxxxx Fargo Bank,
Fargo National Association Personal Guaranty
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Xxxxx Fargo Bank, National Association American CareSource Holdings, Inc.
000 Xxxxxx Xxxxxx, PO Box 837 0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxx 00000-0000 Xxxxxx, XX 00000
(the "Bank") (the "Borrower")
Dated: August 9, 2005
FOR VALUABLE CONSIDERATION, and to induce the Bank in its sole discretion
to make loans or extend other accommodations to or for the account of the
Borrower, the undersigned gives this Personal Guaranty (the "Guaranty"), and
absolutely and unconditionally guarantees to the Bank the full and prompt
payment of each and every debt, liability or obligation of the Borrower to the
Bank relating to or arising out of the Credit Agreement effective December 1,
2004, together with any deposit account related overdrafts of the Borrower. (All
such obligations, including but not limited to every promissory note,
instrument, or other agreement given by the Borrower evidencing any such
obligations, and any extensions, renewals, replacements or refinancings of same,
to collectively be referred to as the "Indebtedness".)
This Guaranty is an absolute, unconditional and continuing guaranty of
payment of the Indebtedness and shall continue to be binding upon the
undersigned, whether or not all Indebtedness is paid in full, until this
Guaranty is revoked prospectively in writing as to future transactions. Such
revocation shall not be effective until actually received in writing by the Bank
and then shall not be effective as to Indebtedness existing or committed to at
the time of revocation, and shall not be effective as to renewals, extensions,
or refinancings of existing Indebtedness, whether such Indebtedness is renewed
before or after receipt of such notice of revocation. The death or incompetence
of the undersigned shall not revoke this Guaranty until written notice of such
death or incompetence is actually received by the Bank, and then only
prospectively as to future transactions as set forth above.
Notwithstanding the preceding paragraphs, the liability of the undersigned
under this Guaranty shall be limited to a principal amount of $2,925,000, plus
accrued interest on the full amount of the Indebtedness and all attorneys' fees,
collection costs and enforcement expenses incurred by the Bank in collecting on
and enforcing its rights under the Indebtedness and incurred in connection with
the protection, defense or enforcement of this Guaranty in any litigation or
bankruptcy proceedings. The Indebtedness may be created and continued in any
amount, whether or not in excess of such principal amount, without reducing or
impairing the liability of the undersigned under this Guaranty. Any payment made
by the undersigned under this Guaranty shall be effective to reduce or discharge
the undersigned's liability only if accompanied by a written transmittal
document, received by the Bank and advising it that such payment is made under
this Guaranty for such purpose.
The undersigned further acknowledges and agrees with Bank that:
1. No act or event need occur to establish the liability of the undersigned
under this Guaranty, and no act or event, except full payment and discharge of
all Indebtedness, shall exonerate and discharge the liability of the undersigned
under this Guaranty.
2. If the undersigned dies or becomes insolvent (however defined) then the Bank
may declare immediately due and payable the obligations of the undersigned under
this Guaranty, and the undersigned shall immediately pay to the Bank the full
amount of all Indebtedness, whether due and payable or unmatured. If the
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undersigned voluntarily commences or there is commenced involuntarily against
the undersigned a case under the United States Bankruptcy Code, the obligations
of the undersigned under this Guaranty shall immediately be due and payable
without the necessity of demand or notice.
3. The undersigned will not exercise or enforce any right of contribution,
reimbursement, recourse or subrogation available to the undersigned against the
Borrower or any person liable for payment of the Indebtedness, or as to any
collateral securing the Indebtedness, unless and until all of the Indebtedness
shall have first been fully paid and discharged.
4. The Bank may in its discretion enter into transactions resulting in the
creation or continuance of Indebtedness, without notice to or the consent or
approval of the undersigned, regardless of whether or not any existing
relationship between the Borrower and the undersigned has been revoked and
regardless of whether this Guaranty has been revoked.
5. The liability of the undersigned shall not be reduced or impaired by any of
the following acts or events (which the Bank, after advance notification to the
Undersigned, is expressly authorized to do, omit or suffer from time to time,
both before and after revocation of this Guaranty, without the consent or
approval of the undersigned): (a) any acceptance of collateral security,
guarantors, accommodation parties or sureties for any or all of the
Indebtedness; (b) any one or more extensions or renewals of Indebtedness
(whether or not for a period longer than the original period) or any
modification of the interest rate, maturity or other contractual terms
applicable to all or part of the Indebtedness; (c) any waiver or indulgence
granted to Borrower, any delay or lack of diligence in the enforcement of the
Indebtedness, or any failure to institute proceedings, file a claim, give any
required notices or otherwise protect any of the Indebtedness; (d) any full or
partial release of, settlement with, or agreement not to xxx, Borrower or any
other guarantor or other person liable with respect to any of the Indebtedness;
(e) any discharge of any evidence of Indebtedness or the acceptance of any
instrument renewing or refinancing the Indebtedness; (f) any failure to obtain
collateral security (including rights of setoff) for the Indebtedness, or to
assure its proper or sufficient creation, perfection, or priority, or to
protect, insure, or enforce any collateral security; or any modification,
substitution, discharge, impairment, or loss of such collateral security; (g)
any foreclosure or enforcement of any collateral security by the Bank or any
other creditor of the Borrower with a security interest in the collateral
security; (h) any assignment or transfer of any Indebtedness or documentation
evidencing the Indebtedness; (i) any order of application of any payments or
credits upon the Indebtedness from the Borrower, the undersigned, or any other
person; and (j) any election by the Bank under ss.1111(b)(2) of the United
States Bankruptcy Code.
6. The undersigned waives any and all defenses, claims and discharges of
Borrower, or any other obligor, pertaining to the Indebtedness, except the
defense of discharge by payment in full. Without limiting the generality of the
preceding sentence, the undersigned will not assert, plead or enforce against
the Bank any defense of waiver, release, discharge in bankruptcy, statute of
limitations, res judicata, statute of frauds, anti-deficiency statute,
misrepresentation or fraud, incapacity, minority, usury, illegality or
unenforceability which may be available to Borrower or any other party liable
for payment of any of the Indebtedness, or any setoff available against the Bank
to Borrower or any such other person, whether or not on account of a related
transaction. The undersigned shall be liable for any deficiency remaining after
foreclosure of any mortgage, deed of trust or security interest securing the
Indebtedness, whether or not the liability of the Borrower or any other obligor
for such deficiency is discharged pursuant to statute or judicial decision.
7. The Bank may in its sole discretion demand that the undersigned discharge its
obligations under this Guaranty at any time, whether at the time of the
scheduled or accelerated maturity of the Indebtedness or at any earlier or later
time, and regardless of whether there has been a default with respect to the
Indebtedness. The Bank shall not be required to first resort for payment of the
Indebtedness to the Borrower or to any other person or their properties, or to
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first enforce, realize upon, or exhaust any collateral security given to secure
the Indebtedness before enforcing this Guaranty. The undersigned waives
presentment, demand for payment, notice of dishonor or nonpayment, and protest
of any instrument evidencing part or all of the Indebtedness.
8. If any payment applied by the Bank to the Indebtedness is later set aside,
recovered, rescinded or required to be returned for any reason (including,
without limitation, the bankruptcy, insolvency or reorganization of the Borrower
or any other obligor), the Indebtedness to which such payment was applied shall
for the purposes of this Guaranty be deemed to have continued in existence,
notwithstanding such application, and this Guaranty shall be enforceable as to
such Indebtedness as fully as if such application had never been made.
9. The liability of the undersigned under this Guaranty is in addition to and
cumulative with all other liabilities of the undersigned to the Bank as a
guarantor or otherwise, without limitation as to amount, unless the instrument
or agreement evidencing or creating such other liability specifically provides
to the contrary.
10. This Guaranty shall be enforceable regardless of the failure of other
persons to sign other guaranties of the Indebtedness. This Guaranty shall be
effective upon delivery to the Bank, without further act, condition or
acceptance by the Bank, shall be binding upon the undersigned and the heirs,
representatives, successors and assigns of the undersigned for the benefit of
the Bank and its participants, successors and assigns. Any invalidity or
unenforceability of any provision or application shall not affect other lawful
provisions and applications of this Guaranty, which is severable. This Guaranty
may not be waived, modified, amended, terminated, released or otherwise changed
except by a writing signed by both the undersigned and the Bank. This Guaranty
is issued in and shall be governed by the laws of the State of Iowa.
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WAIVER OF RIGHT TO TRIAL BY JURY
The undersigned hereby waives the right to a trial by jury in any action
relating to this Guaranty
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IN WITNESS WHEREOF, this Guaranty has been duly executed on the above date
by the undersigned. Undersigned acknowledges receipt of a copy of this
agreement.
/s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
Address:
2116 Financial Center
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
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