West Bank
West Des Moines State Bank
0000 00xx Xxxxxx
P.O. Box 65020
West Des Moines, IA 50265-0020
000-000-0000
CONTINUING
GUARANTY
(UNLIMITED)
--------------------------------------------------------------------------------
GUARANTOR BORROWER
--------------------------------------------------------------------------------
XXXX XXXXXXXXX ALLION HEALTHCARE, INC.
% EQUITY DYNAMICS
ADDRESS ADDRESS
------- -------
2116 FINANCIAL CENTER 00 XXXX XXXXXXX XXXX, XXXXX 000X
XXX XXXXXX, XX 00000 XXXXXXXXXX XXXXXXX, XX 00000
TELEPHONE NO. IDENTIFICATION TELEPHONE NO. IDENTIFICATION
------------- -------------- ------------- --------------
000-000-0000 00-0000000
--------------------------------------------------------------------------------
1. CONSIDERATION. This Guaranty is being executed to induce Xxxxxx indicated
above to enter into one or more loans or other financial accommodations with or
on behalf of Borrower.
2. GUARANTY. Guarantor hereby unconditionally guarantees the prompt and full
payment and performance of Xxxxxxxx's present and future, joint and/or several,
direct and indirect, absolute and contingent, express and implied, indebtedness,
liabilities, obligations and covenants (cumulatively "indebtedness") to Lender
when due (whether upon maturity or by demand, acceleration or otherwise).
Guarantor's liabilities and obligations under this Guaranty ("Obligations")
shall be unlimited and shall include all present and future written agreements
between Borrower and Lendor (whether executed for the same or different purposes
than the foregoing), evidencing the indebtedness, together with all interest and
all of Lender's expenses and costs, incurred in connection with the
indebtedness, including any amendments, extensions, modifications, renewals,
replacements or substitutions thereto.
0.XXXXXXXX INTEREST. If checked, the Obligations under this Guaranty are secured
by a lien on or security interest in the property described in the documents
executed in connection with this Guaranty as well as any other property
designated as security for this Guaranty now or in the future.
4. ABSOLUTE AND CONTINUING NATURE OF GUARANTY. Guarantor's Obligations are
absolute and continuing and shall not be affected or impaired if Lender amends,
renews, extends, compromises, exchanges, fails to exercise, impairs or releases
any of the indebtedness owed by any Borrower, Co-guarantor or third party to
Lender or any of Lender's rights against any Borrower, Co-guarantor, third party
or collateral. In addition, the Obligations shall Borrower, Guarantor, or
third party or by any of the following: The invalidity, illegality or
unenforceability or, or any defect in, the promissory note or any agreement or
any collateral security for the Obligations; Any present or future law or order
of any government or of any agency thereof purporting to reduce, amend or
otherwise affect the indebtedness of the Borrower or any other obligor or to any
other terms of payment; The waiver, compromise, settlement, release or
termination of any or all of the Obligations, covenants or agreements of the
Borrower under the promissory note or any agreement or of any party named as a
Guarantor under this Guaranty; The failure to give notice to the Guarantor of
the occurrence of any event of default under the promissory note or any other
agreement; The loss, release, sale exchange, surrender or other change in any
collateral; The extension of the time for payment of any principal of or
interest on the indebtedness or of the time for performance of any obligations,
covenants or agreements under or arising out of the promissory note or any
agreement or the extension or the renewal of any thereof; The modification or
amendment (whether material or otherwise) of any obligation, covenant or
agreement set forth in the promissory note or any agreement; The taking of, or
the omission to take, any of the actions referred to in the promissory note or
any agreement; Any failure, omission or delay on the part of the Lender to
enforce, asset or exercise any right, power or remedy conferred on the Lender in
the promissory note or any agreement; The voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all the assets,
marshalling of assets, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization or other similar proceedings affecting the
Guarantor or the Borrower or any of their assets, or any allegation or contest
of the validity of the promissory note or any agreement; The default or failure
of the Guarantor to fully perform any Obligations set forth in the Guaranty; Any
event or action that would, in the absence of this paragraph, result in the
release of discharge of the Guarantor from the performance or observance of any
Obligation, covenant or agreement contained in this Guaranty; and Any other
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a surety or a guarantor.
5. DIRECT AND UNCONDITIONAL NATURE OF GUARANTY. Guarantor's Obligations are
direct and unconditional and may be enforced without requiring Lender to
exercise, enforce, or exhaust any right or remedy against any Borrower,
Co-Guarantor, third party or any security or collateral.
6. WAIVER. Guarantor hereby waives notice of the acceptance of this Guaranty;
notice of present and future extensions of credit and other financial
accommodations by Lender to any Borrower; notice of the obtaining or release of
any guaranty, assignment, or other security for any of the indebtedness; notice
of presentment for payment, demand, protest, dishonor, default, and nonpayment
pertaining to the indebtedness and this Guaranty and all other notices and
demands pertaining to the indebtedness and this Guaranty; any and all defenses
to payment as permitted by law. The Guarantor hereby waives the right to require
that any action be brought first against the Borrower or any other guarantor, or
any security or the collateral, or to require that resort be made to any
security or the Collateral or to any balance of any deposit account on credit on
the books of the Lender in favor of the Borrower or of any Guarantor. The
Guarantor will not assert against the Lender any defense of waiver, release,
discharge in bankruptcy, statute of limitations, res judicata statute of frauds,
anti-deficiency statute, fraud, incapacity, illegality or unenforceability which
may be available to Borrower or any third party, whether or not on account or a
related transaction. The Guarantor agrees that the Guarantor shall be liable for
any deficiency remaining after foreclosure of any mortgage or security interest
securing the Obligations, whether or not the liability of Borrower or any other
third party for the deficiency is discharged by statute or judicial decision.
7. DEFAULT: Guarantor shall be in default under this Guaranty in the event that
any Borrower or Guarantor:
(a) fails to pay any amount under this Guaranty or any indebtedness to Lender
when due (whether such amount is due at maturity by acceleration or otherwise);
(b) fails to perform any obligation or breaches any warranty or covenant to
Lender contained in any loan document or this Guaranty or any other present or
future promissory note or written agreement;
(c) provides of causes any false or misleading signature or representation to be
provided to Lender;
(d) allows any collateral for the indebtedness or this Guaranty to be destroyed,
lost or stolen, or damaged in any material respect;
(e) permits the entry or service of any garnishment, tax levy, attachment or
lien against Borrower, Guarantor, or any of their property;
(f) dies, becomes legally incompetent, is dissolved or terminated, ceases to
operate its business, becomes insolvent, makes an assignment for the benefit or
creditors, has an adverse material change in its financial condition, or becomes
the subject of any bankruptcy, insolvency or debtor rehabilitation proceeding;
or
(g) causes Lender, in good faith, to believe the prospect of payment or
performance is impaired.
8. RIGHTS OF LENDER ON DEFAULT. If there is a default under this Guaranty,
Lender shall be entitled to exercise one or more of the following remedies
without notice or demand (except as required by law):
(a) to declare Guarantor's Obligations under this Guaranty immediately due and
payable in full;
(b) to collect the outstanding obligations under this Guaranty with or without
resorting to judicial process;
(c) to take possession of any collateral in any manner permitted by law;
(d) to require Guarantor to deliver and make available to Lender any collateral
at a place reasonably convenient to Guarantor and Lender;
(e) to sell, lease or otherwise dispose of any collateral and collect any
deficiency balance with or without resorting to judicial process;
(f) to set-off Guarantor's Obligations under this Guaranty against any amounts
due to Guarantor including, but not limited to, monies, instruments, and deposit
accounts maintained with Lender; and
(g) to exercise all other rights available to Lender under any other written
agreement or applicable law.
Xxxxxx's rights are cumulative and may be exercised together, separately, and in
any order. Xxxxxx's remedies under this paragraph are in addition to those
available at common law, including, but not limited to the right of set-off.
9. SUBORDINATION. The payment of any present or future indebtedness of Borrower
to Guarantor will be postponed and subordinated to the payment in full of any
present or future indebtedness of Borrower to Lender during the term of this
Agreement. In the event that Guarantor receives any monies, instruments or other
remittances to be applied against Xxxxxxxx's obligations to Guarantor, Guarantor
will hold these funds in trust for Lender and immediately endorse or assign (if
necessary) and deliver these monies, instruments and other remittances to
Lender. Guarantor agrees that Xxxxxx shall be preferred to Guarantor in any
assignment for the benefit of Xxxxxxxx's creditors in any bankruptcy,
insolvency, liquidation, or reorganization proceeding commenced by or against
Borrower in any federal or state court.
10. INDEPENDENT INVESTIGATION. Guarantor's execution and delivery to Lender of
this Guaranty is based solely upon Guarantor's independent investigation of
Xxxxxxxx's financial condition and not upon any written or oral representation
of Lender in any manner. Guarantor assumes full responsibility for obtaining
any additional information regarding Xxxxxxxx's financial condition and Lender
shall not be required to furnish Guarantor with any information of any kind
regarding Borrower's financial condition.
11. ACCEPTANCE OF RISKS. Guarantor acknowledges the absolute and continuing
nature of this Guaranty and voluntarily accepts the full range of risks
associated herewith including, but not limited to, the risk that Borrower's
financial condition shall deteriorate or, if this Guaranty is unlimited, the
risk that Borrower shall incur additional indebtedness to Lender in the future.
12. SUBROGATION. The Guarantor hereby irrevocably waives and releases the
Borrower from all "claims" (as defined in Section 101(5) of the Bankruptcy
Code) to which the Guarantor is or would, at any time, be entitled by virtue of
its obligations under this Guaranty, including, without limitation, any right of
subrogation (whether contractual, under Section 509 of the Bankruptcy Code or
otherwise), reimbursement, contribution, exoneration or similar right against
the Borrower.
13. APPLICATION OF PAYMENTS. Lender will be entitled to apply any payments or
other monies received from Borrower, any third party, or any collateral against
Xxxxxxxx's present and future indebtedness to Lender in any order.
14. ESSENCE OF TIME. Guarantor and Xxxxxx agree that time is of the essence.
15. TERMINATION. This Guaranty shall remain in full force and effect until
Xxxxxx executes and delivers to Guarantor a written release thereof.
Notwithstanding the foregoing, Guarantor shall be entitled to terminate any
unlimited guaranty of Xxxxxxxx's future indebtedness to Lender following any
anniversary of this Guaranty by providing Lender with sixty (60) or more days'
written notice of such termination by hand-delivery or certified mail. Notice
shall be deemed given when received by Xxxxxx. Such notice of termination shall
not affect or impair any of the agreements and Obligations of the Guarantor
under this Agreement with respect to any indebtedness existing prior to the time
of actual receipt of such notice by Lender, any extensions, modifications,
amendments, replacements or renewals thereof, and any interest on any of the
foregoing.
16. ASSIGNMENT. Guarantor shall not be entitled to assign any of its rights or
Obligations described in this Guaranty without Xxxxxx's prior written consent
which may be withheld by Xxxxxx in its sole discretion. Lender shall be
entitled to assign some or all of its rights and remedies described in this
Guaranty without notice to or the prior consent of Guarantor in any manner.
Unless the Lender shall otherwise consent in writing, the Lender shall have any
unimpaired right prior and superior to that of any assignee, to enforce this
Guaranty for the benefit of the Lender, as to those Obligations that the Lender
has not assigned.
17. MODIFICATION AND WAIVER. The modification or waiver of any of Guarantor's
Obligations or Lender's rights under this Guaranty must be contained in a
writing signed by Xxxxxx. Lender may delay in exercising or fail to exercise
any of its rights without causing a waiver or those rights. A waiver on one
occasion shall not constitute a waiver on any other occasion.
18. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon and inure to
the benefit of Guarantor and Xxxxxx and their respective successors, assigns,
trustees, receivers, administrators, personal representatives, legatees and
devisees.
19. NOTICE. Any notice or other communication to be provided under this
Guaranty shall be in writing and sent to the parties at the addresses described
in this Guaranty or such other addresses as the parties may designate in writing
from time to time.
20. SEVERABILITY. If any provision of this Guaranty violates the law or is
unenforceable, the rest of the Guaranty shall remain valid.
21. APPLICABLE LAW. This Guaranty shall be governed by the laws of the state
indicated in Lender's address. Guarantor consents to the jurisdiction and
venue of any court located in such state in the event of any legal proceeding
under this Guaranty.
22. COLLECTION COSTS. If Xxxxxx hires an attorney to assist in collecting any
amount due or enforcing any right or remedy under this Guaranty, Guarantor
agrees to pay Xxxxxx's reasonable attorneys' fees, legal expenses and other
costs as permitted by law.
23. REPRESENTATIONS OF GUARANTOR. Guarantor acknowledges receipt of reasonably
equivalent value in consideration for the execution of this Guaranty and
represents that, after giving effect to this Guaranty, the fair market value of
Guarantor's assets exceeds Guarantor's total liabilities, including contingent,
subordinate and unliquidated liabilities, that Guarantor has sufficient cash
flow to meet debts as they mature, and that Guarantor does not have unreasonably
small capital. Guarantor represents that all required director and shareholder
consents to enter into this Guaranty have been obtained.
24. MISCELLANEOUS. Guarantor will provide Lender with a current financial
statement and other financial information upon request. All references to
Guarantor in this Guaranty shall include all entities or persons signing this
Guaranty. If there is more than one Guarantor, their obligations shall be joint
and several. This Guaranty and any related documents represent the complete and
integrated understanding between Guarantor and Lender pertaining to the terms
and conditions of those documents.
25. WAIVER OF JULY TRIAL. LENDER AND GUARANTOR KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO
ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THE
INDEBTEDNESS GUARANTEED HEREBY, THIS GUARANTY AND ANY OTHER AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER
PARTY, THIS PROVISION IS A MATERIAL INDUCEMENT FOR XXXXXX MAKING THE LOAN OR
LOANS GUARANTEED HEREBY.
26. ADDITIONAL TERMS.
--------------------------------------------------------------------------------
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS
OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
THIS NOTICE ALSO APPLIES TO ANY OTHER CREDIT AGREEMENTS (EXCEPT EXEMPT
TRANSACTIONS) NOW IN EFFECT BETWEEN YOU AND THIS LENDER.
--------------------------------------------------------------------------------
XXXXXXXXX ACKNOWLEDGES GUARANTOR HAS READ, UNDERSTANDS, AND AGREES TO THE TERMS
AND CONDITIONS OF THIS AGREEMENT INCLUDING THE TERMS AND CONDITIONS ON THE
REVERSE SIDE, GUARANTOR HAS EXECUTED THIS AGREEMENT WITH THE INTENT TO BE
LEGALLY BOUND. GUARANTOR ACKNOWLEDGES RECEIPT OF AN EXACT COPY OF THIS
AGREEMENT.
DATED: DECEMBER 16, 1999
GUARANTOR: XXXX XXXXXXXXX GUARANTOR:
/S/XXXX XXXXXXXXX
----------------------- ------------------------
GUARANTOR: GUARANTOR:
----------------------- ------------------------
