GUARANTY AND SURETYSHIP
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THIS GUARANTY AND SURETYSHIP dated February 16, 2006 (together with any
amendments or modifications hereto in effect from time to time, the "Guaranty"),
made by XXXX X. XXXXXX, an adult individual (" Guarantor"), in favor of THE
ESTATE OF XXXXXXXXX X. XXXXXX, A/K/A XXXX X. XXXXXX, A/K/A XXXX XXXXXX, DECEASED
("Estate" or "Lender").
BACKGROUND
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A. The Lender has heretofore provided a loan to Jaindl Associates, L.P., a
Delaware limited partnership (the "Borrower") in the original principal amount
of $4,493,812, the current principal balance being $4,421,297.98 (the "Loan"),
pursuant to the terms and conditions of that certain Promissory Note dated March
1, 2004 executed by the Borrower in favor of the Lender (as amended, modified
and restated from time to time, the "Note").
B. At the request of Lender and as a result of the fact that the Guarantor
is the sole general partner of the Borrower, the Guarantor has agreed to
guaranty and become surety for all of the Borrower's duties, obligations and
liabilities under the Note, pursuant to the terms and conditions hereinafter set
forth.
NOW, THEREFORE, the under, intending to be legally bound, agrees as
follows:
SECTION 1. INTERPRETATION
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1.1 Incorporation of Background. The Background provisions set forth
above (including, but not limited to, all defined terms set forth therein) are
hereby incorporated by reference into this Agreement and made a part hereof as
if set forth in their entirety in this Section 1.1
1.2 Defined Terms. The following terms shall have the following
meanings:
Borrower. Has the meaning ascribed to it in the Background
provisions.
Borrower's Liabilities. Individually and collectively, all
present and future duties, obligations and liabilities of the Borrower to the
Lender under the Note, together with such interest, costs and expenses as are
payable under the Note.
Estate. The Estate of Xxxxxxxxx X. Xxxxxx, a/k/a Xxxx X. Xxxxxx,
a/k/a Xxxx Xxxxxx, Deceased.
Event of Default. As that term is defined in Section 5.1 of this
Guaranty.
Guarantor. Xxxx X. Xxxxxx, an adult individual .
Guarantor's Liabilities. Individually and collectively, all
present and future liabilities of the Guarantor to the Lender under this
Guaranty, together with all reasonable attorneys' fees, costs and expenses of
collection incurred by the Lender in enforcing such liabilities.
Guaranty. This Guaranty and Suretyship, and any future amendments
to this Guaranty and Suretyship.
Lender. The Estate of Xxxxxxxxx X. Xxxxxx, a/k/a Xxxx X. Xxxxxx,
a/k/a Xxxx Xxxxxx, Deceased.
Note. Has the meaning ascribed to it in the Background
provisions.
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Pledge Agreement. The Pledge Agreement dated the date hereof
executed by the Guarantor in favor of the Lender, and any future amendments to
the Pledge Agreement.
Trust. The Xxxxxxxxx X. Xxxxxx Revocable Deed of Trust dated
November 11, 1996, as amended.
1.3 Other Capitalized Terms. All capitalized words and/or phrases not
defined herein which are defined in the Note shall have the meanings ascribed to
them in the Note.
1.4 Other Terms. All terms not defined herein or in the Note which are
defined in the Pennsylvania Uniform Commercial Code shall have the meanings set
forth in the Pennsylvania Uniform Commercial Code.
1.5 Captions. The section and subsection captions of this Guaranty are
included for reference only and are not to be used in the construction of this
Guaranty.
1.6 Severability. Any provision contained in this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
1.7 Construction. This Guaranty and the rights of the Lender and the
obligations of the Guarantor under this Guaranty shall be governed by and
construed in accordance with the domestic, internal laws (but not the law of the
conflict of laws) of the Commonwealth of Pennsylvania.
1.8 Number and Gender. As to all pronouns and other terms in the
Guaranty (whether or not the same shall be a capitalized word and/or phrase),
the singular shall include the plural and the vice versa and any gender shall
include the other two genders, as the context may require.
SECTION 2. GUARANTY OF PAYMENT
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2.1 Guaranty of Payment. The Guarantor irrevocably and unconditionally
guarantees to the Lender, and becomes surety to the Lender for, the prompt
payment when due, whether by acceleration or otherwise, of the Borrower's
Liabilities. This Guaranty is a primary obligation of Guarantor and shall be a
continuing Guaranty. This is a guaranty of payment and not of collection. Lender
may require Guarantor to pay and perform its liabilities and obligations under
this Guaranty and may proceed immediately against Guarantor without being
required to bring any proceeding or take any action against Borrower, any other
Guarantor or any other person, entity or property prior thereto, the liability
of Guarantor hereunder being independent of and separate from the liability of
Borrower, any other Guarantor or person, and the availability of other
collateral security for the Note.
2.2 Unconditional Liability. The liability of the Guarantor hereunder
is absolute and unconditional and shall not be affected in any way by reason of
(a) any failure to retain or preserve, or the lack of prior enforcement of, any
rights against any person or persons (including the Borrower and the Guarantor)
or in any property, (b) the invalidity of any such rights which may be attempted
to be obtained, (c) any delay in enforcing or failure to enforce any such rights
even if such rights are thereby lost, or (d) any delay in making demand on the
Guarantor for performance or payment of the Guarantor's obligation hereunder.
2.3 Continuing Guaranty. This Guaranty is and shall be construed to be
an absolute, unlimited, and continuing guaranty of payment, regardless of the
present or future composition of the Borrower, and all of the Borrower's
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Liabilities to which this Guaranty applies, or may apply under the terms hereof,
shall be conclusively presumed to have been created in reliance hereon. The
Guarantor hereby unconditionally guarantees to the Lender, and becomes surety
for, the due performance, including, but not being limited to, the prompt
payment when due, of the Borrower's Liabilities to the Lender. This Guaranty is
a continuing one and shall be effective and binding on the Guarantor regardless
of how long before or after the date hereof any of the Borrower's Liabilities to
the Lender were or are incurred. Additionally, the Guarantor hereby approves and
consents to the terms and conditions of all documents evidencing Borrower's
Liabilities to the Lender, including, but not limited to the Note, and agrees to
be bound by such terms and conditions as they apply to the Guarantor.
2.4 Invalidity, Irregularity, Unenforceability, Etc. No Defense. No
invalidity, irregularity or unenforceability of, lack of prior enforcement of,
delay in enforcement of, or failure to preserve or enforce, any of the
Borrower's Liabilities or of any security for the payment of the Borrower's
Liabilities (although the Lender's rights have been lost) shall affect, impair
or be a defense to this Guaranty. This Guaranty is and shall remain a primary
obligation of the Guarantor.
2.5 Waivers. Any notice to, consent by, agreement with or waiver by
Jaindl Associates, shall constitute, respectively, a notice to, consent by,
agreement with or waiver by Guarantor.
2.6 Statute of Limitations. Any acknowledgment or new promise with
regard to the Borrower's Liabilities, whether by payment of principal or
interest or otherwise, and whether by the Borrower or others (including the
Guarantor) shall:
(a) toll the running of the statute of limitations in favor of
the Guarantor against the Lender, if the statute of limitations shall have begun
to run; and
(b) prevent the operation of the statute of limitations, if the
period of such statute of limitations shall have expired.
2.7 Place, Mode of Payment. The Guarantor shall make all payments
under this Guaranty to the Lender at its address set forth in Section 6.4
hereof. Payments shall be in lawful money of the United States of America in
funds immediately available to the Lender.
SECTION 3. BORROWER'S LIABILITIES; LENDER ACTIONS
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The Lender may take any or all of the following actions at any time and from
time to time without notice to the Guarantor, without incurring any
responsibility to the Guarantor and without impairing or releasing the
Guarantor's obligations under this Guaranty.
3.1 Exercise of Rights. The Lender may exercise -- if granted the
right to do so under the Note or the Agreement -- or refrain from exercising any
rights against the Borrower, the Guarantor or others arising out of the
Borrower's Liabilities, or otherwise act or refrain from acting.
SECTION 4. SECURITY FOR LIABILITIES
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4.1 Grant of Security Interests. The Guarantor's Liabilities are
secured pursuant to the Pledge Agreement, as provided therein.
SECTION 5. EVENTS OF DEFAULT; REMEDIES
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5.1 Events of Default. The occurrence of any one or more of the
following shall be deemed an Event of Default hereunder:
(a) The occurrence of an Event of Default under and as defined in
the Note.
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(b) Failure by the Guarantor to pay any monies due under this
Guaranty upon demand by Lender, subject to the cure period specified below.
(c) Failure by the Guarantor to observe or perform any other
covenant, condition, term, or provision contained in this Guaranty, subject to
the cure period specified below.
(d) The insolvency (however evidenced) of the Borrower or the
Guarantor in accordance with the terms of the Note.
(e) The making by the Borrower or the Guarantor of an assignment
for the benefit of creditors, or a trustee or receiver being appointed for the
Borrower or the Guarantor or for any property of either of them in accordance
with the terms of the Note.
(f) Any proceeding being commenced by or against the Borrower or
the Guarantor under any bankruptcy, reorganization, arrangement of debt,
insolvency, readjustment of debt, receivership, liquidation or dissolution law
or statute in accordance with the terms of the Note.
With respect to any default or breach of this Guaranty which is not based
on an Event of Default occurring under the Note, an Event of Default shall not
be deemed to have occurred until the Estate has given the Guarantor written
notice of the alleged breach or default, and no cure has been effected within
sixty (60) days thereafter.
5.2 Remedies. Upon an Event of Default, all liabilities of Guarantor
hereunder shall become immediately due and payable without demand or notice and,
in addition to any other remedies provided by law, Lender may:
(a) enforce the obligations of Guarantor under this Guaranty;
(b) to the extent not prohibited by and in addition to any other
remedy provided by law, setoff against any of the Guarantor's Liabilities any
sum owed to Lender by Guarantor whether due or not (specifically including, but
not limited to, any and all Estate and Trust distributions to the Guarantor, or
if he is deceased, any distribution to any of Guarantor's descendants or any
other person claiming distribution as a result of a relationship to the
Guarantor);
(c) exercise any of its rights and remedies provided by the laws
of the Commonwealth of Pennsylvania or any other jurisdiction;
(d) the Lender may exercise any of its rights and remedies
provided by the Pledge Agreement and the laws of the Commonwealth of
Pennsylvania or any other jurisdiction.
5.3 Lender's Expenses. The Guarantor shall pay to the Lender all
reasonable costs and expenses, including filing fees and reasonable attorneys'
fees, incurred by the Lender in connection with any proceedings to collect any
of the Guarantor's Liabilities.
5.4 Application of Funds. After deducting all costs and expenses
described in subsection 5.3 of this Guaranty, the Lender shall apply the balance
of the proceeds of any sale or collection to the Borrower's Liabilities and the
Guarantor shall continue to be liable for any deficiency, with interest at the
annual rates set forth in the Note.
5.5 No Marshalling, Etc., Required. If any Event of Default shall have
occurred, the Lender shall not be required to xxxxxxxx any present or future
security for, or guarantee of, the Borrower's Liabilities held by it or to
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resort to any such security or guarantee in any particular order. The Guarantor
waives, to the fullest extent the Guarantor lawfully can (a) any right the
Guarantor might have to require the Lender to pursue any particular remedy
before proceeding against the Guarantors, and (b) any right to the benefit of,
or to direct application of the proceeds of, any collateral until the Borrower's
Liabilities have been paid in full.
SECTION 6. MISCELLANEOUS
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6.1 Representations and Warranties. As a material inducement for the
Lender to extend credit to the Borrower, the Guarantor represents and warrants
to the Lender as follows:
(a) The Guarantor is sui juris.
(b) The Guarantor has the power, capacity and authority to
execute, deliver and perform under this Guaranty.
(c) This Guaranty, when executed and delivered, will constitute
valid obligations of the Guarantor legally binding upon him and enforceable in
accordance with their respective terms.
(d) The execution and delivery of this Guaranty will not violate
or contravene any provision of any mortgage, indenture, security agreement,
undertaking or other agreement to which Guarantor is a party or by which
Guarantor or any of his properties is bound or subject and will not result in
the creation or imposition of any lien, security interest or other encumbrance
on any of its properties pursuant to the provisions of any such mortgage,
indenture, security agreement, undertaking or other agreement.
(e) The Guarantor has reviewed and is familiar with all of the
provisions of the Note.
(f) The Guarantor is being benefitted, directly or indirectly, by
the transaction pursuant to which this Guaranty is being given.
6.2 Waivers.
(a) No delay by the Lender in exercising, or any partial or
single exercise of, any of its options, powers or rights, shall constitute a
waiver of such option, power or right.
(b) No waiver of any of the Lender's rights under this Guaranty,
and no amendment of this Guaranty shall be deemed to be made by the Lender
unless in writing and duly signed on behalf of the Lender.
(c) Any written waiver shall apply only with respect to the
specific instance involved and shall in no way impair the rights of the Lender
or the obligations of the Guarantor under this Guaranty in any other respect at
any other time.
6.3 Subordination, Subrogation.
(a) The Guarantor shall not collect or enforce, attempt to
collect or enforce or receive any payment or property from the Borrower in
respect of any present or future obligation of the Borrower to the Guarantor
until the Borrower's Liabilities have been paid or otherwise discharged in full.
(b) The Guarantor, but only after all of the Borrower's
Liabilities are paid, shall be subrogated to the rights of the Lender under the
Note as the result of the payment in full of Borrower's Liabilities. Guarantor
also waives all rights to participate in any security held by the Lender for the
Borrower's Liabilities, except if payment in full on the Note has been made.
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6.4 Notices. All notices, requests and demands to or upon the parties
shall have been duly given and effective (i) when delivered, (ii) when
transmitted via telecopy (or other facsimile device) to the number set forth
below, (iii) the Business Day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service, or (iv)
the third Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in each case to the respective parties at
the address or telecopy numbers set forth below or at such other address as such
party may specify by written notice to the other parties hereto:
The Lender: The Estate of Xxxxxxxxx X. Xxxxxx,
a/k/a Xxxx X. Xxxxxx, a/k/a Xxxx Xxxxxx,
Deceased
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Co-Executor,
Xxxx X. Xxxxxx, Co-Executor, Xxxx X.
Xxxxxxx, Co-Executor
with a copy to: Xxxxxxx & Xxx
000 Xxxxxxxx Xxxx, Xxxxx 000
X.X. Xxx 00000
Xxxxxx Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esquire
The Guarantor: Xxxx X. Xxxxxx
0000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
with a copy to: Law Offices of Xxxxx X. Xxxxxxx
Mill Run Office Center
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esquire
6.5 Legal Effect.
(a) This Guaranty shall be binding upon the Guarantor and the
Guarantor's heirs, personal representatives, successors and assigns; provided,
however, the Guarantor shall not assign the Guarantor's duties under this
Guaranty without the prior written consent of Lender.
(b) This Guaranty shall be binding upon and shall inure to the
benefit of, the Lender and its successors, and Lender shall not assign its
rights, duties or entitlements under this Guaranty without the prior written
consent of Guarantor. The term "Lender" includes any agent of the Lender acting
for it.
6.6 Venue. Guarantor and Lender agree that any such suit, action or
proceeding may be instituted in the courts of Lehigh County, Commonwealth of
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Pennsylvania or the United States District Court for the Eastern District of
Pennsylvania, and irrevocably and unconditionally submits to the jurisdiction of
any such court for such purpose.
6.7 Waiver of Trial by Jury. The Guarantor and the Estate agree that
any suit, action, or proceeding, whether claim or counterclaim, brought or
instituted by the Guarantor, by the Lender or by any successor or assign of any
party on or with respect to this Guaranty or the Note, or which in any way
relates, directly or indirectly, to the Note or any event, transaction, or
occurrence arising out of or in any way connected with the Note, or the dealings
of the parties with respect thereto, shall be tried only by a court and not by a
jury. GUARANTOR AND LENDER HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY
IN ANY SUCH SUIT, ACTION, OR PROCEEDING. GUARANTOR AND LENDER ACKNOWLEDGE AND
AGREE THAT THIS SECTION 6.7 IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT
BETWEEN THE PARTIES.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Guarantor
has executed this Guaranty the day and year first above written.
/s/ Xxxx X. Xxxxxx
---------------------------------(SEAL)
Xxxx X. Xxxxxx
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