Exhibit 10.40
Bank of America, N.A.
Date September 22, 2000
LIMITED GUARANTY
BANK: GUARANTOR:
Bank of America, N.A. CSX Corporation
Banking Center: 000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Private Bank Attn: Corporate Secretary
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
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"BORROWER": Xxxxx X. Xxxxxxxxx
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1. GUARANTY. FOR VALUE RECEIVED, and to induce Bank of America, N.A. (Attn:
Private Bank) ("Bank") to make loans or advances or to extend credit or other
financial accommodations or benefits, with or without security, to or for the
account of Borrower, the undersigned "Guarantor", if more than one, then each of
them jointly and severally, hereby becomes surety for and irrevocably and
unconditionally guarantees to Bank prompt payment in an amount as provided
herein, when due, whether by acceleration or otherwise, of any Liabilities of
Borrower to Bank. This Guaranty is cumulative to and does not supersede any
other guaranties.
Notwithstanding any provision of this Guaranty to the contrary, this Guaranty is
limited to the amount of $7,929,500.51 dollars principal plus interest incurred
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by Borrower pursuant to that certain promissory note or other Loan Documents
from Borrower to Bank, dated September 22, 2000 in the principal amount of
$7,929,500.51 dollars, including, without limitation, all principal plus
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interest owing at any time thereunder whether arising by renewal or advance of
additional principal which may accrue or be incurred with respect to said
promissory note or other Loan Documents, plus attorney's fees, cost of expenses
of collection incurred and/or the cost of the enforcement of rights in enforcing
this Guaranty (including, without limitation, any liability arising from failure
to comply with any state or federal laws, rules and regulations concerning the
control of hazardous waste or substances at or with respect to any real estate
securing any loan guaranteed hereby), plus interest on such attorney'' fees and
cost of collection.
Except to the extend limited above, Guarantor unconditionally guarantees the
faithful, prompt and complete compliance by Borrower with all Obligations (as
hereinafter defined). The undertakings of Guarantor hereunder are independent
of the Liabilities and Obligations of Borrower and a separate action or actions
for payment, damages or performance may be brought or prosecuted against
Guarantor, whether or not an action is brought against Borrower or to realize
upon the security for the Liabilities and/or Obligations, whether or not
Borrower is joined in any such action or actions, and whether or not notice is
given or demand is made upon Borrower.
Bank shall not be required to proceed first against Borrower, or any other
person or entity, whether primarily or secondarily liable, or against any
collateral held by it, before resorting to Guarantor for payment, and Guarantor
shall not be entitled to assert as a defense to the enforceability of the
Guaranty any defense of Borrower with respect to any Liabilities or Obligations.
2. PARAGRAPH HEADINGS, GOVERNING LAW AND BINDING EFFECT. Guarantor agrees
that the paragraph headings in this Guaranty are for convenience only and that
they will not limit any of the provisions of this Guaranty. Guarantor further
agrees that this Guaranty shall be governed by and construed in accordance with
the laws of the Commonwealth of Virginia and applicable United States federal
law. Guarantor further agrees that this Guaranty shall be deemed to have been
made in the Commonwealth of Virginia at Bank's address indicated above, and
shall be governed by, and construed in accordance with, the laws of the
Commonwealth of Virginia, or the United States courts located within the
Commonwealth of Virginia, and is performable in the Commonwealth of Virginia.
This Guaranty is binding upon Guarantor, his, their or its executors,
administrators, successors or assigns, and shall inure to the benefit of Bank,
its successors, indorsees or assigns. Anyone executing this Guaranty shall be
bound by the terms hereof without regard to execution by anyone else.
3. DEFINITIONS.
A. "Guarantor" shall mean Guarantor or any one or more of them.
B. "Liability" or "Liabilities" shall mean without limitation, all
liabilities, overdrafts, indebtedness, and obligations of Borrower and/or
Guarantor to Bank, whether direct or indirect, absolute or contingent, joint or
several, secured or unsecured, due or not due, contractual or tortious,
liquidated or
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unliquidated, arising by operation of law or otherwise, now or hereafter
existing, or held or to be held by Bank for its own account or as agent for
another or others, whether created directly, indirectly, or acquired by
assignment or otherwise, including but not limited to all extensions or renewals
thereof, and all sums payable under or by virtue thereof, including without
limitation, all amounts of principal and interest, all expenses (including
reasonable attorney's fees and cost of collection) incurred in the collection
thereof or the enforcement of rights thereunder (including without limitation,
any liability arising from failure to comply with state or federal laws, rules
and regulations concerning the control of hazardous waste or substances at or
with respect to any real estate securing any loan guaranteed hereby), whether
arising in the ordinary course of business or otherwise. If Borrower is a
partnership, corporation or other entity the term "Liability" or "Liabilities"
as used herein shall include all Liabilities to Bank of any successor entity or
entities.
C. "Loan Documents" shall mean all deeds to secure debt, deeds of trust,
mortgages, security agreements and other documents securing payment of the
Liabilities and all notes and other agreements, documents, and instruments
evidencing or relating to the Liabilities and Obligations.
D. "Obligation" or "Obligations" shall mean all terms, conditions,
covenants, agreements and undertakings of Borrower and/or Guarantor under all
notes and other documents evidencing the Liabilities, and under all deeds to
secure debt, deeds of trust, mortgages, security agreements and other
agreements, documents and instruments executed in connection with the
Liabilities or related thereto.
4. WAIVERS BY GUARANTOR. Guarantor waives notice of acceptance of this
Guaranty, notice of any Liabilities or Obligations to which it may apply,
presentment, demand for payment, protest, notice of dishonor or nonpayment of
any Liabilities, notice of intent to accelerate, notice of acceleration, and
notice of any suit or the taking of other action by Bank against Borrower,
Guarantor or any other person, any applicable statute of limitations and any
other notice to any party liable on any Loan Document (including Guarantor).
Each Guarantor also hereby waives any claim, right or remedy which such
Guarantor may now have or hereafter acquire against Borrower that arises
hereunder and/or from the performance by any other Guarantor hereunder
including, without limitation, any claim, remedy or right of subrogation,
reimbursement, exoneration, contribution, indemnification, or participation in
any claim, right or remedy of Bank against Borrower or against any security
which Bank now has or hereafter acquires, whether or not such claim, right or
remedy arises in equity, under contract, by statute, under common law or
otherwise.
Guarantor also waives the benefits of any provision of law requiring that Bank
exhaust any right or remedy, or take any action, against Borrower, any
Guarantor, any other person and/or property including but not limited to the
provisions of the Virginia Code (S)49-25 and the Virginia Code (S)49-26, as
amended, or otherwise.
Bank may at any time and from time to time (whether before or after revocation
or termination of this Guaranty) without notice to Guarantor (except as required
by law), without incurring responsibility to Guarantor, without impairing,
releasing or otherwise affecting the Obligations of Guarantor, in whole or in
part, and without the indorsement or execution by Guarantor of any additional
consent, waiver or guaranty: (a) change the manner, place or terms of payment,
or change or extend the time of or renew, or change any interest rate or alter
any Liability or Obligation or installment thereof, or any security therefor;
(b) loan additional monies or extend additional credit to Borrower, with or
without security, thereby creating new Liabilities or Obligations the payment or
performance of which shall be guaranteed hereunder, and the Guaranty herein made
shall apply to the Liabilities and Obligations as so changed, extended,
surrendered, realized upon or otherwise altered; (c) sell, exchange, release,
surrender, realize upon or otherwise deal with in any manner and in any order
any property at any time pledged or mortgaged to secure the Liabilities or
Obligations and any offset there against; (d) exercise or refrain from
exercising any rights against Borrower or others (including Guarantor) or act or
refrain from acting in any other manner; (e) settle or compromise any Liability
or Obligation or any security therefor and subordinate the payment of all or any
part thereof to the payment of any Liability or Obligation of any other parties
primarily or secondarily liable on any of the Liabilities or Obligations; (f)
release or compromise any Liability of Guarantor hereunder or any Liability or
Obligation of any other parties primarily or secondarily liable on any of the
Liabilities or Obligations; or (g) apply any sums from any sources to any
Liability without regard to any Liabilities remaining unpaid.
5. SUBORDINATION. Upon demand of Bank, Guarantor agrees that it will not
demand, take or receive from Borrower, by set-off or in any other manner,
payment of any debt, now and at any time or times hereafter owing by Borrower
to Guarantor, unless and until all the Liabilities and Obligations shall have
been fully paid and performed, and any security interest, liens or encumbrances
which Guarantor now has and from time to time hereafter may have upon any of the
assets of Borrower shall be made subordinate,
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junior and inferior and postponed in priority, operation and effect to any
security interest of Bank in such assets.
6. WAIVERS BY BANK. No delay on the part of Bank in exercising any of its
options, powers or rights, and no partial or single exercise thereof, shall
constitute a waiver thereof. No wavier of any of its rights hereunder, and no
modification or amendment of this Guaranty, shall be deemed to be made by Bank
unless the same shall be in writing, duly signed on behalf of Bank; and each
such waiver, if any, shall apply only with respect to the specific instance
involved, and shall in no way impair the rights of Bank or the obligations of
Guarantor to Bank in any other respect at any other time.
7. TERMINATION. This Guaranty shall be binding on each Guarantor until
written notice of revocation signed by such Guarantor or written notice of the
death of such Guarantor shall have been received by Bank, notwithstanding change
in name, location, composition or structure of, or the dissolution, termination
or increase, decrease or change in personnel, owners or partners of Borrower, or
any one ore more of Guarantors. No notice of revocation or termination hereof
shall affect in any manner rights arising under this Guaranty with respect to
Liabilities or Obligations that shall have been committed, created, contracted,
assumed or incurred prior to receipt of such written notice pursuant to any
agreement entered into by Bank prior to receipt of such notice. The sole effect
of such notice of revocation or termination hereof shall be to exclude from this
Guaranty, Liabilities or Obligations thereafter arising that are unconnected
with Liabilities or Obligations theretofore arising or transactions entered into
theretofore.
In the event of the death of a Guarantor, the liability of the estate of the
deceased Guarantor shall continue in full force and effect as to (i) the
Liabilities existing at the date of death, and any renewals or extensions
thereof, and (ii) loans or advances made to or for the account of Borrower after
the date of the death of the deceased Guarantor pursuant to a commitment made by
Bank to Borrower prior to the date of such death. As to all surviving
Guarantors, this Guaranty shall continue in full force and effect after the
death of a Guarantor, not only as to the Liabilities existing at that time, but
also as to Liabilities thereafter incurred by Borrower to Bank.
8. PARTIAL INVALIDITY AND/OR ENFORCEABILITY OF GUARANTY. The unenforceability
or invalidity of any provision of this Guaranty shall not affect the
enforceability or validity of any other provision herein and the invalidity or
unenforceability of any provision of any Loan Document as it may apply to any
person or circumstance shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.
In the event Bank is required to relinquish or return the payments, the
collateral or the proceeds thereof, in whole or in part, which had been
previously applied to or retained for application against any Liability, by
reason of a proceeding arising under the Bankruptcy Code, or for any other
reason, this Guaranty shall automatically continue to be effective
notwithstanding any previous cancellation or release effected by Bank.
9. CHANGE OF STATUS. Guarantor will not merge into or consolidate with any
other entity, or permit any other entity to merge into or consolidate with it,
or sell, transfer, lease or otherwise dispose of (in one transaction or a series
of transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) unless (a) the surviving corporation in such transaction
(whether the Guarantor or another entity, the "Surviving Corporation") shall be
a corporation organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia, and the Surviving
Corporation shall expressly assume all of the Guarantor's obligations under this
Guaranty and any other Loan Document to which Guarantor is a party in writing,
(b) immediately after giving effect to such transaction, no default (or any
event described in Section 12 of this Guaranty) shall have occurred hereunder or
under any other Loan Document to which Guarantor is a party, and (c) immediately
after giving effect to any such transaction, the Net Worth of the Surviving
Corporation, calculated in accordance with generally accepted accounting
principles, shall be equal to or greater than the Net Worth of Guarantor as of
the last day of the immediately preceding fiscal quarter of Guarantor, and the
Surviving Corporation shall deliver to Bank such certificates of financial
officers and opinions of counsel and other documents as Bank may request to
confirm compliance with all of the foregoing conditions. Guarantor further
agrees that this Guaranty shall be binding, legal and enforceable against
Guarantor in the event Borrower changes its name, status or type of entity.
10. FINANCIAL AND OTHER INFORMATION. Guarantor agrees to furnish to Bank any
and all financial information and any other information regarding Guarantor
and/or collateral requested in writing by Bank within ten (10) days of the date
of the request. Guarantor has made an independent investigation of the
financial condition and affairs of Borrower prior to entering into this
Guaranty, and Guarantor will continue to make such investigation; and in
entering into this Guaranty Guarantor has not relied upon any representation of
Bank as to the financial condition, operation or creditworthiness of Borrower.
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Guarantor further agrees that Bank shall have no duty or responsibility now or
hereafter to make any investigation or appraisal of Borrower on behalf of
Guarantor or to provide Guarantor with any credit or other information which may
come to its attention now or hereafter.
11. NOTICES. Notice shall be deemed reasonable if mailed postage prepaid at
least five (5) days before the related action to the address of Guarantor or
Bank, at their respective addresses indicated at the beginning of this Guaranty,
or to such other address as any party may designate by written notice to the
other party. Each notice, request and demand shall be deemed given or made, if
sent by mail, upon the earlier of the date of receipt or five (5) days after
deposit in the U.S. Mail, first class postage prepaid, or if sent by any other
means, upon delivery.
12. GUARANTOR DUTIES. Guarantor shall upon notice or demand by Bank promptly
and with due diligence pay all Liabilities and perform and satisfy all
Obligations for the benefit of Bank in the event of (a) the occurrence of any
default under any Loan Documents; (b) the failure of any Borrower or Guarantor
to perform any obligation or pay any liability or indebtedness of any Borrower
or Guarantor to Bank, or to any affiliate of Bank, whether under any Note,
Guaranty, or any other agreements, now or hereafter existing, as and when due
(whether upon demand, at maturity or by acceleration); (c) the failure of any
Borrower or Guarantor to pay or perform any other liability, obligation or
indebtedness of any Borrower or Guarantor to any other party; (d) the death of
any Borrower or Guarantor (if an individual); (e) the resignation or withdrawal
of any partner or a material owner/Guarantor of Borrower, as determined by Bank
in its sole discretion; (f) the commencement of a proceeding against any
Borrower or Guarantor for dissolution or liquidation, the voluntary or
involuntary termination or dissolution of any Borrower or Guarantor or the
merger or consolidation of any Borrower or Guarantor with or into another
entity; (g) the insolvency, or the business failure of, or the appointment of a
custodian, trustee, liquidator or receiver for or of any of the property of, or
the assignment for the benefit of creditors by, or the filing of a petition
under bankruptcy, insolvency or debtor's relief law or the filing of a petition
for any adjustment of indebtedness, composition or extension by or against any
Borrower or Guarantor; (h) the sole determination by Bank that any
representation or warranty to Bank in any Loan Document or otherwise to Bank was
untrue or materially misleading when made; (i) the failure of Guarantor or
Borrower to timely deliver such financial statements including tax returns and
all schedules, or other statements of condition or other information, as Bank
shall request from time to time; (j) the entry of a judgment against Borrower or
Guarantor which Bank deems to be of a material nature in the sole discretion of
Bank; (k) the seizure or forfeiture of any of Borrower or Guarantor's property,
or the issuance of any writ of possession, garnishment or attachment, or any
turnover order; (l) the sole determination by Bank that Guarantor or Borrower
jointly or severally, has suffered a material adverse change in its financial
condition; (m) the determination by Bank that for any reason it is insecure; (n)
any lien or additional security interest being place upon any collateral which
is security for any Loan Document; or (o) the failure of Borrower's business to
comply with any law or regulation controlling the operation of Borrower's
business.
13. REMEDIES. Upon the failure of Guarantor to fulfill its duty to pay all
Liabilities and perform and satisfy all Obligations as required hereunder, Bank
shall have all of the remedies of a creditor and, to the extent applicable, of a
secured party, under all applicable law, and without limiting the generality of
the foregoing, Bank may, at its option and without notice or demand: (a)
declare any Liability due and payable at once; (b) take possession of any
collateral pledged by Borrower or Guarantor wherever located, and sell, resell,
assign, transfer and deliver all or any part of said collateral of Borrower or
Guarantor at any public or private sale or otherwise dispose of any or all of
the collateral in its then condition, for cash or on credit or for future
delivery, and in connection therewith Bank may impose reasonable conditions upon
any such sale, and Bank, unless prohibited by law the provisions of which cannot
be waived, may purchase all or any part of said collateral to be sold, free from
and discharged of all trusts, claims rights or redemption and equities of
Borrower or Guarantor whatsoever; Guarantor acknowledges and agrees that the
sale of any collateral through any nationally recognized broker-dealer,
investment banker or any other method common in the securities industry shall be
deemed a commercially reasonable sale under the Uniform Commercial Code or any
other equivalent statute or federal law, and expressly waives notice thereof
except as provided herein; and (c) set-off against any or all liabilities of
Guarantor all money owed by Bank or any of its agents or affiliates in any
capacity to Guarantor whether or not due, and also set-off against all other
Liabilities of Guarantor to Bank all money owed by Bank in any capacity of
Guarantor, and if exercised by Bank, Bank shall be deemed to have exercised such
right of set-off and to have made a charge against any such money immediately
upon the occurrence of such default although made or entered on the books
subsequent thereto.
Bank shall have a properly perfected security interest in all of Guarantor's
funds on deposit with Bank to secure the balance of any Liabilities and/or
Obligations that Guarantor may now or in the future owe Bank. Bank is granted a
contractual right of set-off and will not be liable for dishonoring checks or
withdrawals where the exercise of Bank's contractual right of set-off or
security interest results in insufficient funds in Guarantor's account. As
authorized by law, Guarantor grants to Bank this
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contractual right of set-off and security interest in all property of Guarantor
now or at anytime hereafter in the possession of Bank, including but not limited
to any joint account, special account, account by the entireties, tenancy in
common, and all dividends and distributions now or hereafter in the possession
or control of Bank.
14. ATTORNEY FEES, COST AND EXPENSES. Guarantor shall pay all costs of
collection and reasonable attorney's fees, including reasonable attorney's fees
in connection with any suit, mediation or arbitration proceeding, out of Court
payment agreement, trial, appeal, bankruptcy proceedings or otherwise, incurred
or paid by Bank in enforcing the payment of any Liability or defending this
agreement.
15. PRESERVATION OF PROPERTY. Bank shall not be bound to take any steps
necessary to preserve any rights in any property pledged as collateral to Bank
to secure Borrower and/or Guarantor's Liabilities and Obligations as against
prior parties who may be liable in connection therewith, and Borrower and
Guarantor hereby agree to take any such steps. Bank, nevertheless, at any time,
may (a) take any action it deems appropriate for the care or preservation of
such property or of any rights of Borrower and/or Guarantor or Bank therein; (b)
demand, xxx for, collect or receive any money or property at any time due,
payable or receivable on account of or in exchange for any property pledged as
collateral, to Bank to secure Borrower and/or Guarantor's Liabilities to Bank;
(c) compromise and settle with any person liable on such property; or (d) extend
the time of payment or otherwise change the terms of the Loan Documents as to
any party liable on the Loan Documents, all without notice to, without incurring
responsibility to, and without affecting any of the Obligations or Liabilities
of Guarantor.
16. ARBITRATION AND WAIVER OF JURY TRIAL.
(a) This paragraph concerns the resolution of any controversies or claims
between Guarantor and Bank, whether arising in contract, tort or by statute,
including but not limited to controversies or claims that arise out of or relate
to: (i) this Guaranty (including any renewals, extensions or modifications); or
(ii) any document related to this Guaranty (collectively a "Claim").
(b) At the request of Guarantor or Bank, any Claim shall be resolved by
binding arbitration in accordance with the Federal Arbitration Act (Title 9,
United States Code) (the "Act"). The Act will apply even thought this Guaranty
provides that it is governed by the law of a specified state.
(c) Arbitration proceedings will be determined in accordance with the Act,
the applicable rules and procedures for the arbitration of disputes of JAMS or
any successor thereof ("JAMS"), and the terms of this paragraph. In the event
of any inconsistency, the terms of this paragraph shall control.
(d) The arbitration shall be administered by JAMS and conducted in any
U.S. state where real or tangible personal property collateral for this Guaranty
is located or if there is no such collateral, the Commonwealth of Virginia. All
Claims shall be determined by one arbitrator, however, if Claims exceed Five
Million U.S. Dollars ($5,000,000), upon the request of any party, the Claims
shall be decided by three arbitrators. All arbitration hearings shall commence
within 90 days of the demand for arbitration and close within 90 days of
commencement, and the award of the arbitrator(s) shall be issued within 30 days
of the close of the hearing. However, the arbitrator(s), upon a showing of good
cause, may extend the commencement of the hearing for up to an additional 60
days. The arbitrator(s) shall provide a concise written statement of reasons
for the award. The arbitration award may be submitted to any court having
jurisdiction to be confirmed and enforced.
(e) The arbitrator(s) will have the authority to decide whether any Claim
is barred by the statute of limitations and, if so, to dismiss the arbitration
on that basis. For purposes of the application of the statute of limitations,
the service on JAMS under applicable JAMS rules of a notice of claim is the
equivalent of the filing of a lawsuit. Any dispute concerning this arbitration
provision or whether a Claim is arbitrable shall be determined by the
arbitrator(s). The arbitrator(s) shall have the power to award legal fees
pursuant to the terms of this Guaranty.
(f) This paragraph does not limit the right of Guarantor or Bank to: (i)
exercise self-help remedies, such as but not limited to, setoff, (ii) initiate
judicial or nonjudicial foreclosure against any real or personal property
collateral, (iii) exercise any judicial or power of sale rights, or (iv) act in
a court of law to obtain an interim remedy, such as but not limited to,
injunctive relief, writ of possession or appointment of a receiver, or
additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a waiver of
the right of Guarantor or Bank, including the suing party, thereafter to require
submittal of the Claim to arbitration.
(h) By agreeing to binding arbitration, the parties irrevocably and
voluntarily waive any right they may have to a trial by jury in respect of any
Claim. Furthermore, without intending in any way to
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limit this agreement to arbitrate, to the extent any Claim is not arbitrated,
the parties irrevocably and voluntarily waive any right they may have to a trial
by jury in respect of such Claim. This provision is a material inducement for
the parties entering into this Guaranty.
17. CONTROLLING DOCUMENT. To the extent that this Limited Guaranty conflicts
with or is in any way incompatible with any other Loan Document concerning this
Obligation, any promissory note shall control over any other document, and if
such promissory note does not address an issue, then each other document shall
control to the extent that it deals most specifically with an issue.
18. EXECUTION UNDER SEAL. This Guaranty is being executed under seal by
Guarantor.
19. NOTICE OF FINAL AGREEMENT. THIS WRITTEN LIMITED GUARANTY REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be executed
under seal on this 22nd day of September, 2000.
WITNESSED BY: GUARANTOR:
/s/Xxxxxx X. Xxxxxxx CSX CORPORATION
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By: /s/Xxxxxxx X. Xxxxx
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(Seal)
Xxxxxx X. Xxxxxxx Name: X. X. Xxxxx
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Staff Assistant
Print Name and Title Title: Vice President & Treasurer
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/s/Xxxxxx X. Xxxxxxxxxx
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Attest (If Applicable)
[Corporate Seal]
CORPORATE ACKNOWLEDGEMENT
State of Virginia )
)
City of Richmond )
This instrument was acknowledged before me on September 25, 2000, by X. X.
Xxxxx, Vice President & Treasurer of CSX Corporation, a Virginia corporation, on
behalf of said corporation.
/s/Xxxxx X. Xxxxxxx
---------------------------------
Notary Public
(Seal) in and for the State of Virginia
August 31, 2003 Xxxxx X. Xxxxxxx
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My Commission Expires Print Name of Notary
Bank of America -6- Limited Guaranty
