GUARANTY AGREEMENT (“Agreement”), dated as of ______________,
20___, is by ___________________ (the “Guarantor”) for the
benefit of the State of Oregon, acting by and through its Department
of State Lands (the “Department”), each (a “Party”) and
jointly, (the “Parties”).
consideration of the Department issuing or renewing a removal-fill
permit to _____________________ (the “Permit Applicant”),
Guarantor agrees as follows:
STATEMENT OF GUARANTY
Guaranty of full and prompt payment.
By executing this Joint and Several Personal Guaranty, Guarantor, as
Principal, unconditionally and irrevocably guarantees full and prompt
Reimbursement to Department. Guarantor’s obligations for
Reimbursement are initiated upon Department’s written determination
that Permit Applicant has failed to implement the mitigation project
required by removal-fill permit number _____________ and that
Department will need to implement the mitigation. Guarantor also
unconditionally and irrevocably guarantees full and prompt payment
when due of any and all expenses (including, without limitation,
reasonable attorney fees and expenses, whether incurred at the trial
or appellate level, in an arbitration or administrative proceeding,
in bankruptcy (including, without limitation, any adversary
proceeding, contested matter, or motion), or otherwise) reasonably
incurred by the Department in pursuing Reimbursement and enforcing
any rights under this Agreement.
Guaranty to indemnify and hold Department harmless. Guarantor
indemnify and defend the State of Oregon, the Department and its
officers, employees and agents from and against all claims, suits,
actions, losses, damages, liabilities, costs and expenses of any
nature whatsoever, including attorney fees (“Claims”), arising
or relating to implementation of the mitigation project required by
removal-fill permit ____________.
GUARANTY IS PERPETUAL AND ABSOLUTE
Agreement is a perpetual and absolute continuing guaranty of payment
and is not a guaranty of collection, and represents a continuing
obligation of Guarantor and will not be discharged until the
Department releases Guarantor, or except by indefeasible payment in
cash of the Reimbursement and full performance of Guarantor’s other
obligations under this Agreement. Guarantor guarantees that
Reimbursement will be made in full to the Department within thirty
(30) days of receipt of written demand, regardless of any law,
regulation, or order now or hereafter in effect in any jurisdiction
affecting any rights of the Department with respect to the
Time is of the essence. Without
limitation, the liability of Guarantor under this Agreement is
absolute and unconditional, and The Guarantor waives any discharge of
Guarantor’s obligations under this Agreement that may arise BY
OPERATION OF LAW.
All notices other than demand for payment;(b)
The filing of any claim with a court in the event of receivership or
bankruptcy of the Permit Applicant;(c)
Protest or notice regarding nonpayment of the Reimbursement; and(d)
All demands, including, without limitation, any requirement that
demand be made on the Permit Applicant as a condition precedent to
Guarantor’s obligations under this Agreement.
If, in the good-faith exercise of any of its rights and remedies,
the Department forfeits any of its rights or remedies, including,
without limitation, its right to enter a deficiency judgment against
the Permit Applicant or any other Person, the Guarantor hereby
consents to such action by the Department and waives any claim based
on such action.
If applicable law prevents the Department from collecting interest on
the Reimbursement, or to enforce or exercise any other right or
remedy with respect to the Reimbursement, Guarantor will pay to the
Department, on demand, the amount that otherwise would have been due
Guarantor assumes responsibility for keeping informed of the
financial condition of the Permit Applicant and of each other
guarantor, if any, and of all other circumstances bearing on the risk
of nonpayment of the Reimbursement that diligent inquiry would
reveal. The Department will have no duty to advise Guarantor of
information known to the Department regarding any condition or
circumstance bearing on such risks.
The Department will be under no obligation to marshal any assets in
favor of Guarantor or otherwise.
Until Reimbursement has been fully and indefeasibly paid in cash and
performed, Guarantor will have no right of subrogation, and Guarantor
waives any right to enforce any remedy that the Department now has or
may hereafter have against the Permit Applicant or any other person.
The Department’s delay in exercising or failure to exercise any
right under this Agreement will not operate as a waiver of this
Agreement, nor will any single or partial exercise of any right
preclude any other or further exercise thereof or the exercise of any
other right. The Department’s remedies under this Agreement are
cumulative and not exclusive of any remedies provided by law. The
Department’s failure at any time to require strict performance by
the Permit Applicant, Guarantor, or any other Person of this
Agreement, will not waive, affect, or diminish any right of the
Department at any time to demand strict performance thereof. No
action by the Department permitted hereunder will in any way affect
or impair any of the Department’s rights to seek any remedy
provided by law, or the Guarantor’s obligations. Any determination
by a court of competent jurisdiction of the amount of Reimbursement
will be conclusive and binding on the Guarantor.
understands that the Department does not have to pursue the Permit
Applicant or pursue any other remedies before demanding payment from
guarantor. guarantor further understands that he or she must pay
amounts then due even if the Permit Applicant or any other guarantor
does not make the payments or are otherwise relieved of the
obligation to make payments.
Assignment, Delegation, Transfer
Department may assign or otherwise transfer obligations owing to it
under this Agreement.
Guarantor shall not assign, delegate or otherwise transfer any of
its rights or obligations under this Agreement.
Agreement will remain in full force and effect and continue to be
effective into perpetuity notwithstanding the following: (a) The
filing of any petition by or against the Permit Applicant for
liquidation or reorganization; (b) The Permit Applicant’s
insolvency; (c) The Permit Applicant’s making of an assignment for
the benefit of creditors; or (d) The appointment of a receiver or
trustee for any of the Permit Applicant’s assets, and will, to the
fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and
performance of any part of the Reimbursement is avoided, rescinded,
or reduced in amount, or must otherwise be restored or returned,
whether as a “voidable preference,” a “fraudulent transfer,”
or otherwise, all as though such Reimbursement had not been made.
GOVERNING LAW AND FORUM
The laws of the State of Oregon
govern all matters arising out of or relating to this Agreement. Any
action or suit brought by the Parties relating to this Agreement must
be brought and conducted solely and exclusively in the Circuit Court
of Marion County for the State of Oregon in Salem, Oregon.
TO MAINTAIN BUSINESS ENTITY
agrees to make all reasonable efforts to maintain the business entity
in active status until all mitigation obligations have been
a permit issued by the Department under the Removal-Fill Law, ORS
196.800 et seq.
and Several Personal Guaranty” means
a guaranty executed by a Principal that allows the Department to seek
Reimbursement directly from a Guarantor’s personal assets, and that
requires Guarantor to indemnify the Department.
a shareholder, stockholder, limited partner, general partner, member,
trustee, current beneficiary, or other principal of the Permit
payment to the State of Oregon for expenses incurred by the State of
Oregon in implementing the mitigation required by removal-fill permit
number ________(the “Permit”) if and when the Permit Applicant
has failed to implement such mitigation in accordance with the
enters into this Agreement as of the date first written above.