*1360000522187363335009528*
COMMERCIAL GUARANTY
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PRINCIPAL LOAN MATURITY LOAN CALL COLLATERAL ACCOUNT OFFICER INITIALS
DATE NO. 0095 78 FKW
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References in the shaded area are for Lender's use only and do not limit the applicability of this document to
any particular loan or item. Any item above containing "***" has been omitted due to text length limitations.
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Borrower: P.P.C.T. Products, L.L.C. (TIN: 65-0888611) Lender: SouthTrust Bank, N.A.
7635 W. 28th Avenue Pembroke Pines Office
Hialeah, FL 33016 12440 S. W. Pines Boulevard
Pembroke Pines, FL 33027
(954) 432-6900
Guarantor: Gerald F. O'Connell (SSN: ###-##-####)
103 Clearview Lane
New Canoon, CT 06840
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AMOUNT OF GUARANTY. The amount of this Guaranty is Unlimited.
CONTINUING UNLIMITED GUARANTY. For good and valuable consideration, Gerald
F. O'Connell ("Guarantor") absolutely and unconditionally guarantees and
promises to pay to SouthTrust Bank, N.A. ("Lender") or its order, on
demand, in legal tender of the United States of America, the Indebtedness (as
that term is defined below) of P.P.C.T. Products, L.L.C. ("Borrower") to
Lender on the terms and conditions set forth in this Guaranty. Under this
Guaranty, the liability of Guarantor is unlimited and the obligations of
Guarantor are continuing.
INDEBTEDNESS GUARANTEED. The Indebtedness guaranteed by this Guaranty
includes any and all of Borrower indebtedness to Lender and is used in the
most comprehensive sense and means and includes any and all of Borrower's
liabilities, obligations and debts to Lender, now existing or hereinafter
incurred or created, including, without limitation, all loans, advances,
interest, costs, debts, overdraft indebtedness, credit card indebtedness,
lease obligations, other obligations, and liabilities of Borrower, or any of
them, and any present or future judgments against Borrower, or any of them;
and whether any such Indebtedness is voluntarily or involuntarily incurred,
due or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined; whether Borrower may be liable individually or
jointly with others, or primarily or secondarily, or as guarantor or surety;
whether recovery on the Indebtedness may be or may become barred or
unenforceable against Borrower for any reason whatsoever; and whether the
Indebtedness arises from transactions which may be voidable on account of
infancy, insanity, ultra vires, or otherwise.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor
or to Borrower, and will continue in full force until all Indebtedness
incurred or contracted before receipt by Lender of any notice of revocation
shall have been fully and finally paid and satisfied and all of Guarantor's
other obligations under this Guaranty shall have been performed in full. If
Guarantor elects to revoke this Guaranty, Guarantor may only do so in
writing. Guarantor's written notice of revocation must be mailed to Lender,
by certified mail, at Lender's address listed above or such other place as
Lender may designate in writing. Written revocation of this Guaranty will
apply only to advances or new indebtedness created after actual receipt by
Lender of Guarantor's written revocation. For this purpose and without
limitation, the term "new indebtedness" does not include Indebtedness which
at the time of notice of revocation is contingent, unliquidated, undetermined
or not due and which later becomes absolute, liquidated, determined or due.
This Guaranty will continue to bind Guarantor for all Indebtedness incurred
by Borrower or committed by Lender prior to receipt of Guarantor's written
notice of revocation, including any extensions, renewals, substitutions or
modifications of the Indebtedness. All renewals, extensions, substitutions,
and modifications of the Indebtedness granted after Guarantor's revocation,
are contemplated under this Guaranty and, specially will not be considered to
be new Indebtedness. This Guaranty shall bind Guarantor's estate as to
Indebtedness created both before and after Guarantor's death or incapacity,
regardless of Lender's actual notice of Guarantor's death. Subject to the
foregoing, Guarantor's executor or administrator or other legal
representative may terminate this Guaranty in the same manner in which
Guarantor might have terminated it and with the same effect. Release of any
other guarantor or termination of any other Guarantors shall not affect the
liability of any remaining Guarantors under this Guaranty. A revocation
Lender receives from any one or more Guarantors shall not affect the liability
of any remaining Guarantors under this Guaranty. IT IS ANTICIPATED
THAT FLUCTUATIONS MAY OCCUR IN THE AGGREGATE AMOUNT OF INDEBTEDNESS COVERED
BY THIS GUARANTY, AND GUARANTOR SPECIFICALLY ACKNOWLEDGES AND AGREES THAT
REDUCTIONS IN THE AMOUNT OF INDEBTEDNESS, EVEN TO ZERO DOLLARS ($0.00), PRIOR
TO GUARANTOR'S WRITTEN REVOCATION OF THIS GUARANTY SHALL NOT CONSTITUTE A
TERMINATION OF THIS GUARANTY. THIS GUARANTY IS BINDING UPON GUARANTOR AND
GUARANTOR'S HEIRS, SUCCESSORS AND ASSIGNS SO LONG AS ANY OF THE GUARANTEED
INDEBTEDNESS REMAINS UNPAID AND EVEN THOUGH THE INDEBTEDNESS GUARANTEED MAY
FROM TIME TO TIME BE ZERO DOLLARS ($0.00).
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either
before or after any revocation hereof, WITHOUT NOTICE OR DEMAND AND WITHOUT
LESSENING GUARANTOR'S LIABILITY UNDER THIS GUARANTY, FROM TIME TO TIME: (A)
prior to revocation as set forth above, to make one or more additional
secured or unsecured loans to Borrower, to lease equipment or other goods to
Borrower, or otherwise to extend additional credit to Borrower; (B) to alter,
compromise, renew, extend, accelerate, or otherwise change one or more times
the time for payment or other terms of the Indebtedness or any part of the
Indebtedness, including increases and decreases of the rate of interest on
the Indebtedness; extensions may be repeated and may be for longer than the
original loan term; (C) to take and hold security for the payment of this
Guaranty or the Indebtedness, and exchange, enforce, waive, subordinate, fail
or decide not to perfect, and release any such security, with or without the
substitution of new collateral; (D) to release, substitute, agree not to sue,
or deal with any one or more of Borrower's sureties, endorsers, or other
guarantors on any terms or in any manner Lender may choose; (E) to determine
how, when and what application of payments and credits shall be made on the
Indebtedness; (F) to apply such security and direct the order or manner of
sale thereof, including without limitation, any nonjudicial sale permitted by
the terms of the controlling security agreement or deed of trust, as Lender
in its discretion may determine; (G) to sell, transfer, assign or grant
participations in all or any part of the Indebtedness and (H) to assign or
transfer this Guaranty in whole or part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and
warrants to Lender that (A) no representations or agreements of any kind have
been made to Guarantor which would limit or qualify in any way the terms of
this Guaranty; (B) this Guaranty is executed at Borrower's request and not
at the request of Lender; (C) Guarantor has full power, right and authority
to enter into this Guaranty; (D) the provisions of this Guaranty do not
conflict with or result in a default under any agreement or other instrument
binding upon Guarantor and do not result in a violation of any law,
regulation, court decree or order applicable to Guarantor; (E) Guarantor has
not and will not, without the prior written consent of Lender, sell, lease,
assign, encumber, hypothecate, transfer, or otherwise dispose of all or
substantially all of Guarantor's assets, or any interest therein; (F) upon
Lender's request, Guarantor will provide to Lender financial and credit
information in form acceptable to Lender, and all such financial information
which currently has been, and all future financial information which will be
provided to Lender is and will be true and correct in all material respects
and fairly present Guarantor's financial condition as of the dates the
financial information is provided; (G) no material adverse change has
occurred in Guarantor's financial condition since the date of the most recent
financial statements provided to Lender and no event has occurred which may
materially adversely affect Guarantor's financial condition; (H) no
litigation, claim, investigation, administrative proceeding or similar action
(including those for unpaid taxes) against Guarantor is pending or
threatened; (I) Lender has made no representation to Guarantor as to the
creditworthiness of Borrower; and (J)Guarantor has established adequate means
of obtaining from Borrower on a continuing basis information regarding
Borrower's financial condition. Guarantor agrees to keep adequately informed
from such means of any facts, events, or circumstances which might in any way
affect Guarantor's risks under this Guaranty, and Guarantor further agrees
that, absent a request for information, Lender shall have no obligation to
disclose to Guarantor any information or documents acquired by Lender in the
course of its relationship with Borrower.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor
waives any right to require Lender (A) to continue lending money or to extend
other credit to Borrower; (B) to make any presentment, protest, demand, or
notice of any kind, including notice of any nonpayment of the Indebtedness or
of any nonpayment related to any collateral, or notice of any action or
nonaction on the part of Borrower, Lender, any surety, endorser, or other
guarantor in connection with the Indebtedness or in connection with the
creation of new or additional loans or obligations; (C) to resort for payment
or to proceed directly or at once against any person, including Borrower or
any other guarantor; (D) to proceed directly against or exhaust any
collateral held by Lender from Borrower, any other guarantor, or any other
person; (E) (F) to pursue any other remedy within Lender's power; or (G) to
commit any act or omission of any kind, or at any time, with respect to any
matter whatsoever.
In addition to the waivers set forth above, if now or hereafter Borrower is
or shall become insolvent and the Indebtedness shall not at all times until
paid be fully secured by collateral pledged by Borrower, Guarantor hereby
forever waives and gives up in favor of Lender and Borrower, and Lender's and
Borrower's respective
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COMMERCIAL GUARANTY PAGE 2
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successors, any claim or right to payment Guarantor may now have or hereafter
have or acquire against Borrower, by subrogation or otherwise, so that at no
time shall Guarantor be or become a "creditor" of Borrower within the meaning
of 11 U.S.C. section 547(b), or any successor provision of the Federal
bankruptcy laws.
Guarantor also waives any and all rights or defenses arising by reason of (A)
any "one action" or "anti-deficiency" law or any other law which may prevent
Lender from bringing any action, including a claim for deficiency, against
Guarantor, before or after Lender's commencement or completion of any
foreclosure action, either judicially or by exercise of a power of sale; (B)
any election of remedies by Lender which destroys or otherwise adversely
affects Guarantor's subrogation rights or Guarantor's rights to proceed
against Borrower for reimbursement, including without limitation, any loss of
rights Guarantor may suffer by reason of any law limiting, qualifying, or
discharging the Indebtedness; (C) any disability or other defense of
Borrower, of any other guarantor, or of any other person, or by reason of the
cessation of Borrower's liability from any cause whatsoever, other than
payment in full in legal tender, of the Indebtedness; (D) any right to claim
discharge of the Indebtedness on the basis of unjustified impairment of any
collateral for the Indebtedness; (E) any statute of limitations, if at any
time any action or suit brought by Lender against Guarantor is commenced
there is outstanding Indebtedness of Borrower to Lender which is not barred
by any applicable statute of limitations; or (F)any defenses given to
guarantors at law or in equity other than actual payment and performance of
the Indebtedness. If payment is made by Borrower, whether voluntarily or
otherwise, or by any third party, on the Indebtedness and thereafter Lender
is forced to remit the amount of that payment to Borrower's trustee in
bankruptcy or to any similar person under any federal or state bankruptcy law
or law for the relief of debtors, the Indebtedness shall be considered unpaid
for the purpose of the enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any
deductions to the amount guaranteed under this Guaranty for any claim of
setoff, counterclaim, counter demand, recoupment or similar right, whether
such claim, demand or right may be asserted by the Borrower, the Guarantor,
or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and
agrees that each of the waivers set forth above is made with Guarantor's full
knowledge of its significance and consequences and that, under the
circumstances, the waivers are reasonable and not contrary to public policy
or law. If any such waiver is determined to be contrary to any applicable
law or public policy, such waiver shall be effective only to the extent
permitted by law or public policy.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the
Indebtedness of Borrower to Lender, whether now existing or hereafter
created, shall be superior to any claim that Guarantor may now have or
hereafter acquire against Borrower, whether or not Borrower becomes
insolvent. Guarantor hereby expressly subordinates any claim Guarantor may
have against Borrower, upon any account whatsoever, to any claim that Lender
may now or hereafter have against Borrower. In the event of insolvency and
consequent liquidation of the assets of Borrower, through bankruptcy, by an
assignment for the benefit of creditors, by voluntary liquidation, or
otherwise, the assets of Borrower applicable to the payment of the claims of
both Lender and Guarantor shall be paid to Lender and shall be first applied
by Lender to the Indebtedness of Borrower to Lender. Guarantor does hereby
assign to Lender all claims which it may have or acquire against Borrower or
against any assignee or trustee in bankruptcy of Borrower; provided, however,
that such assignment shall be effective only for the purpose of assuring to
Lender full payment in legal tender of the Indebtedness. If Lender so
requests, any notes or credit agreements now or hereafter evidencing any
debts or obligations of Borrower to Guarantor shall be marked with a legend
that the same are subject to this Guaranty and shall be delivered to Lender.
Guarantor agrees, and Lender is hereby authorized, in the name of Guarantor,
from time to time to execute and file financing statements and continuation
statements and to execute such other documents and to take such other actions
as Lender deems necessary or appropriate to perfect, preserve and enforce its
rights under this Guaranty.
GARNISHMENT. Guarantor consents to the issuance of a continuing writ of
garnishment or attachment against Guarantor's disposable earnings, in
accordance with Section 222.11, Florida Statutes, in order to satisfy, in
whole or in part, any money judgment entered in favor of Lender.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part
of this Guaranty:
AMENDMENTS. This Guaranty, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Guaranty. No alteration of or
amendment to this Guaranty shall be effective unless given in
writing and signed by the party or parties sought to be charged or
bound by the alteration or amendment.
ATTORNEYS' FEES; EXPENSES. Guarantor agrees to pay upon demand all
of Lender's costs and expenses, including Lender's reasonable
attorneys' fees and Lender's legal expenses, incurred in connection
with the enforcement of this Guaranty. Lender may hire or pay
someone else to help enforce this Guaranty, and Guarantor shall pay
the costs and expenses of such enforcement. Costs and expenses
include Lender's reasonable attorneys' fees and legal expenses
whether or not there is a lawsuit, including reasonable attorneys'
fees and legal expenses for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection services.
Guarantor also shall pay all court costs and such additional fees as
may be directed by the court.
CAPTION HEADINGS. Caption headings in this Guaranty are for
convenience purposes only and are not to be used to interpret or
define the provisions of this Guaranty.
GOVERNING LAW. This Guaranty will be governed by, construed and
enforced in accordance with federal law and the laws of the State of
Florida. This Guaranty has been accepted by Lender in the State of
Florida.
INTEGRATION. Guarantor further agrees that Guarantor has read and
fully understands the terms of this Guaranty; Guarantor has had the
opportunity to be advised by Guarantor's attorney with respect to
this Guaranty; the Guaranty fully reflects Guarantor's intentions
and parol evidence is not required to interpret the terms of this
Guaranty. Guarantor hereby indemnifies and holds Lender harmless
from all losses, claims, damages, and costs (including Lender's
attorneys' fees) suffered or incurred by Lender as a result of any
breach by Guarantor of the warranties, representations and
agreements of this paragraph.
INTERPRETATION. In all cases where there is more than one Borrower
or Guarantor, then all words used in this Guaranty in the singular
shall be deemed to have been used in the plural where the context
and construction so require; and were there is more than one
Borrower named in this Guaranty or when this Guaranty is executed by
more than one Guarantor, the words "Borrower" and "Guarantor"
respectively shall mean all and any one or more of them. The words
"Guarantor," Borrower," and "Lender" include the heirs, successors,
assigns, and transferees of each of them. If a court finds that any
provision of this Guaranty is not valid or should not be enforced,
that fact by itself will not mean that the rest of this Guaranty
will not be valid or enforced. Therefore, a court will enforce the
rest of the provisions of this Guaranty even if a provision of this
Guaranty may be found to be invalid or unenforceable. If any one or
more of Borrower or Guarantor are corporations, partnerships,
limited liability companies, or similar entities, it is not
necessary for Lender to inquire info the powers of Borrower or
Guarantor or of the officers, directors, partners, managers, or
other agents acting or purporting to act on their behalf, and any
Loan indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed under this Guaranty.
NOTICES. Any notice required to be given under this Guaranty shall
be given in writing, and, except for revocation notices by
Guarantor, shall be effective when actually delivered, when actually
received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if
mailed, when deposited in the United States mail, as first class,
certified or registered mail postage prepaid, directed to the
addresses shown near the beginning of this Guaranty. All revocation
notices by Guaranty shall be in writing and shall be effective upon
delivery to Lender as provided in the section of this Guaranty
entitled "DURATION OF GUARANTY." Any party may change its address
for notices under this Guaranty by giving written notice to the
other parties, specifying that the purpose of the notice is to
change the party's address. For notice purposes, Guarantor agrees
to keep Lender informed at all times of Guarantor's current address.
Unless otherwise provided or required by law, if there is more than
one Guarantor, any notice given by Lender to any Guarantor is deemed
to be notice given to all Guarantors.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any
rights under this Guaranty unless such waiver is given in writing
and signed by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision of this Guaranty
shall not prejudice or constitute a waiver of Lender's right
otherwise to demand strict compliance with that provision or any
other provision of this Guaranty. No prior waiver by Lender, nor
any course of dealing between Lender and Guarantor, shall constitute
a waiver of any of Lender's rights or of any of Guarantor's obligations
as to any future transactions. Whenever the consent of Lender is
required under this Guaranty, the granting of such consent by Lender
in any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent
may be granted or withheld in the sole discretion of Lender.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this
Guaranty on transfer of Guarantor's interest, this Guaranty shall be
binding upon and inure to the benefit of the parties, their
successors and assigns.
WAIVE JURY. Lender and Guarantor hereby waive the right to any jury
trial in any action, proceeding, or counterclaim brought by either
Lender or Borrower against the other. (Initial Here ________)
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COMMERCIAL GUARANTY PAGE 3
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DEFINTIONS. The following capitalized words and terms shall have the
following meanings when used in this Guaranty. Unless specifically stated to
the contrary, all references to dollar amounts shall mean amounts in lawful
money of the United States of America. Words and terms used in the singular
shall include the plural, and the plural shall include the singular, as the
context may require. Words and terms not otherwise defined in this Guaranty
shall have the meaning attributed to such terms in the Uniform Commercial
Code:
BORROWER. The word "Borrower" means P.P.C.T. Products, L.L.C., and
all other persons and entities signing the Note in whatever capacity.
GUARANTOR. The word "Guarantor" means each and every person or
entity signing this Guaranty, including without limitation Gerald F.
O'Connell.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to
Lender, including without limitation a guaranty of all or part of
the Note.
INDEBTEDNESS. The word "Indebtedness" means Borrower's indebtedness
to Lender as more particularly described in this Guaranty.
LENDER. The word "Lender" means SouthTrust Bank, N.A., its
successors and assigns.
RELATED DOCUMENTS. The words "Related Documents" mean all
promissory notes, credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of
trust, security deeds, collateral mortgages, and all other
instruments, agreements and documents, whether now or hereafter
existing, executed in connection with the Indebtedness.
GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS COMMERCIAL
GUARANTY AND GUARANTOR AGREES TO ITS TERMS. THIS COMMERCIAL GUARANTY IS
DATED OCTOBER 29, 2000.
GUARANTOR:
X /s/ Gerald F. O'Connell
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Gerald F. O'Connell, Individually
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INDIVIDUAL ACKNOWLEDGMENT
STATE OF FLORIDA) )
) SS
COUNTY OF _______) )
The foregoing instrument was acknowledged before me this _______ day of _______
20__ by Gerald F. O'Connell, who is personally known to me or has produced
_________ as identification and did / did not take an oath.
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(Signature of Person Taking Acknowledgment)
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(Name of Acknowledger Typed, Printed or Stamped)
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(Title or Rank)
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(Serial Number, if any)