CAPITAL BANK -- CONTINUING GUARANTY
FOR VALUABLE CONSIDERATION, the undersigned, AQUAGENIX, INC. (hereinafter
called "Guarantor"), for itself, their heirs, personal representatives,
successors and assigns, hereby, jointly and severally, unconditionally guarantee
to CAPITAL BANK, a Florida banking corporation (hereinafter called "Lender"),
and its successors, participants, endorsees or assigns, the due performance and
full and prompt payment when due, whether at maturity or by acceleration, or
otherwise, of any and all obligations and indebtedness of AQUAGENIX LAND-WATER
TECHNOLOGIES, INC. (hereinafter called "Borrower") to Lender.
The word "indebtedness" is used herein in its most comprehensive sense and
includes any and all advances, debts, obligations and liabilities, including
interest of Borrower heretofore, now or hereafter made, incurred or created or
held or to be held, by Lender for its own account or as agent for another, or
otherwise, whether created directly or acquired by assignment, or otherwise,
whether voluntary or involuntary, and however arising, whether due or not,
absolute or contingent, liquidated or non-liquidated, and whether Borrower may
be liable individually or jointly with others, or whether recovery upon such
indebtedness may be or hereafter become barred by any statute of limitations, or
whether such indebtedness may be or hereafter become otherwise unenforceable.
This is a Continuing Guaranty relating to said indebtedness, including that
arising under subsequent or successive transactions between Borrower and Lender,
which shall either continue or increase the indebtedness and is not limited as
to amount.
The obligations hereunder are joint and several, and independent of the
obligations of Borrower, and a separate action or actions may be brought and
prosecuted against Guarantor, whether action is brought against Borrower or
whether Borrower may be joined in any such action or actions. This is a guaranty
of payment and not of collection.
Guarantor acknowledges that the loan referred to herein is a valid and
binding obligation of the Borrower. Guarantor authorizes Lender, without notice
of demand, and without affecting their liability hereunder, from time to time,
and on any number of occasions, to (a) renew, amend, compromise, extend,
accelerate, reinstate or otherwise change the time for payment of, or otherwise
change the terms of the indebtedness or any part thereof, including increase or
decrease of the rate of interest thereon; (b) take and hold security of the
payment of this guaranty or the indebtedness guaranteed, exchange, enforce,
waive and release any such security; (c) apply such security and direct the
order or manner of sale thereof as Lender in its discretion may determine; and
(d) release or substitute any one or more of the endorsers or guarantors.
Guarantor acknowledges and agrees that no act or omission of any kind by Lender,
including, but not limited to, the failure to take or perfect a security
interest in any security for the indebtedness guaranteed, shall affect or impair
this guaranty and the Lender shall have no duties in respect thereof to
Guarantor. Lender, may, without notice, assign this guaranty in whole or in
part.
1
Guarantor waives any right to require Lender to (a) proceed against
Borrower; (b) proceed against or exhaust any security held from Borrower; or (c)
pursue any other remedy in Lender's power whatsoever. Guarantor waives any
defense arising by reason of any disability or other defense of Borrower or by
reason of the cessation from any cause whatsoever of the liability of Borrower.
Until all indebtedness of Borrower to Lender shall have been paid in full,
Guarantor shall have no right of subrogation, and waive any right to enforce any
remedy which Lender now has or may hereafter have against Borrower, and waive
any benefit of, and any right to participate in, any security now or hereafter
held by Lender. Guarantor waives all presentments, demands for performance,
notices of nonperformance, protests, notices of dishonors and notices of
acceptance of this guaranty and of the existence, creation or incurring of new
or additional indebtedness. Guarantor covenants to cause the Borrower to
maintain and preserve the enforceability of any instruments now or hereafter
executed in favor of the Lender, and to take no action of any kind which might
be the basis for a claim that the Guarantor have any defense hereunder other
than payment in full of all indebtedness of the Borrower to Lender. Guarantor
hereby indemnifies Lender against loss, cost or expense by reason of the
assertion by the Guarantor of any defense hereunder based upon any such action
or inaction of the Borrower. Guarantor waives any right or claim of right to
cause a marshaling of the Borrower's assets or to require the Lender to proceed
against the Guarantor in any particular order. No delay on the part of the
Lender in the exercise of any right, power or privilege under the documentation
with the Borrower or under this guaranty shall operate as a waiver of any such
privilege, power or right.
In addition to all liens upon, and rights of setoffs against, the monies,
securities, or other property of Guarantor, or any of them, given to Lender by
law, Lender shall have a lien upon, and a right of setoff against, all monies,
securities and other property of Guarantor, or any of them, now or hereafter in
the possession of or on deposit with Lender, whether held in a general or
special account of deposit, or for safekeeping, or otherwise; and every such
lien and right of setoff may be exercised without demand upon or notice to
Guarantor. No lien or right of setoff shall be deemed to have been waived by any
act or conduct on the part of the Lender, or by any neglect to exercise such
right of setoff or to enforce such lien, or by any delay in so doing; and every
right of setoff and lien shall continue in full force and effect until such
right of setoff or lien is specifically waived or released by an instrument in
writing executed by Lender.
Any indebtedness of Borrower now or hereafter held by Guarantor is hereby
subordinated to the indebtedness of Borrower to Lender; and such indebtedness of
Borrower to Guarantor if Lender so requests shall be collected, enforced and
received by Guarantor as trustees for Lender and be paid over to Lender on
account of the indebtedness of Borrower to Lender, but without reducing or
affecting in any manner the liability of Guarantor under the other provisions of
this guaranty.
Guarantor agrees to pay a reasonable attorneys' fee and all other costs
and expenses which may be incurred or expended by Lender in the enforcement of
the Borrower's obligation and of this guaranty, whether suit be brought or not,
and in the event suit is brought, then for all services in trial and appellate
courts. Guarantor does hereby waive the right to trial by jury of any claims or
actions arising hereunder or resulting from the indebtedness referred to herein.
2
Upon the default of the Borrower with respect to any of its obligations or
liabilities to Lender, or in case Borrower or any Guarantor shall become
insolvent or make an assignment for the benefit of creditors, or if a petition
in bankruptcy or for corporate reorganization or for an arrangement be filed by
or against Borrower or any Guarantor, or in the event of the appointment of a
receiver for Borrower or for any Guarantor or their properties, or in the even
that a judgment is obtained or warrant of attachment issued against Borrower or
any Guarantor, or in the event Lender deems itself insecure, or should Lender
request additional security and Guarantor or Borrower should fail to provide
same, all or any part of the indebtedness of the Borrower and of the obligations
and liabilities of the Guarantor to Lender, whether direct or contingent, and of
every kind and description, shall, without notice or demand, at the option of
the Lender, become immediately due and payable and shall be paid forthwith by
the Guarantor.
Where the Borrower is a corporation or a partnership, it is not necessary
for the Lender to inquire into the powers of the Borrower, or the officers,
directors, partners or agents acting or purporting to act in the Borrower's
behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
Notwithstanding any provision herein or in any instrument now or hereafter
evidencing said indebtedness, the total liability for payments in the nature of
interest shall not exceed the limits imposed from time to time by the usury laws
of the State of Florida. This guaranty and the rights and obligations of the
Lender and the Guarantor shall be governed and construed in accordance with the
laws of the State of Florida.
The terms "Borrower," "Borrowers," "Guarantor" or "Guarantors" shall
denote the single or the plural, and natural or artificial persons whenever and
wherever the context so requires or admits.
The Guarantor acknowledges that the Lender has been induced by this
Guaranty to make financial accommodations, now and in the future, to the
Borrower, and would not make such financial accommodations without this
Guaranty, and this Guaranty agreement shall, without further reference or
assignment, pass to, and may be relied upon and enforced by, any successor or
participant or assignee of the Lender.
As to each of the undersigned, this Guaranty shall continue until written
notice of revocation signed by such undersigned, or until written notice of the
death of such undersigned shall in each case have been actually received by the
Lender, notwithstanding revocation by, or the death of, or complete or partial
release for any cause of, any one or more of the remainder of the undersigned,
or of the Borrower or of anyone liable in any manner for the indebtedness hereby
guaranteed or for the indebtedness (including those hereunder) incurred directly
or indirectly in respect thereof or hereof, and notwithstanding the dissolution,
termination or increase, decrease or change in personnel of any one or more of
the undersigned which may be partnerships. No revocation or termination hereof
shall affect in any manner rights arising under this Guaranty with respect to
(a) liabilities which shall have been created, contracted, assumed or incurred
prior to receipt by the Lender of written notice of such revocation or
3
termination, or (b) liabilities which shall have been created, contracted,
assumed or incurred after receipt of such written notice pursuant to any
contract entered into by the Lender prior to receipt of such notice; and the
sole effect of revocation or termination hereof shall be to exclude from this
Guaranty liabilities thereafter arising which are unconnected with liabilities
theretofore arising or transactions theretofore entered into.
All notices required or permitted to be given to the Lender herein shall
be sent by registered or certified mail, return receipt requested, directed to
the President of the Lender.
Wherever possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law; however, if
any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
seals this _10th_ day of April, 1997.
Signed, sealed and delivered
in the presence of: AQUAGENIX, INC.
/s/ Christine Lenoir By: /s/ Andrew Chesler
- -------------------------- -----------------------------------------
/s/ Jami Looney Print Name: Andrew Chesler, President
- --------------------------
4