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Joseph M. Harris First Charter National Bank Hansen Lind Meyer Inc.
21120 Blakely Shores Drive Post Office Box 228 Suite 2950
Davidson, NC 28036 Concord, NC 28025 121 West Trade Street
Charlotte, NC 28202
GUARANTOR'S NAME AND ADDRESS LENDER'S NAME AND ADDRESS BORROWER'S NAME AND ADDRESS
"I" indicates each guarantor above, "You" means the Lender, its successors and assigns. "Borrower" means each person above
jointly and severally.
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GUARANTY
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and to induce you, at your option, to make loans or engage
in any other transactions with borrower from time to time, I absolutely and
unconditionally guarantee the full payment of the following debts (as defined
herein) when due (whether at maturity or upon acceleration):
PRESENT DAY GUARANTY
[X] I absolutely and unconditionally guarantee to you the payment and
performance of the following described debt (including all renewals,
extensions, refinancings and modifications) of the
borrower: NOTE DATED 12/10/96 for $500,000.00 .
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PRESENT AND FUTURE DEBT GUARANTY
[ ] I absolutely and unconditionally guarantee to you the payment and
performance of each and every debt, of every type and description, that
the borrower may not or at any time in the future owe you including,
but not limited to, the following described debt(s):___________________
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[ ] I absolutely and unconditionally guarantee to you the payment and
performance of each and every debt, of every type and description, that
the borrower may now or at any time in the future owe you, up to the
principal amount of $____________ plus accrued interest, attorney's
fees and collection costs referable thereto (when permitted by law),
and all other amounts agreed to be paid under all agreements evidencing
the debt and securing the payment of the debt. You may, without notice,
apply this guaranty to such debts of the borrower as you may select
from time to time.
DEFINITIONS - As used in this agreement, the terms "I," "we," and "my" mean all
persons signing this guaranty agreement, individually and jointly, and their
heirs, executors, administrators and assigns.
The term "debt" means all debts, liabilities, and obligations of the
borrower (including, but not limited to, all amounts agreed to be paid under the
terms of any notes or agreements securing the payment of any debt, liability or
obligation, overdrafts, letters of credit, guaranties, advances for taxes,
insurance, repairs and storage, and all extensions, renewals, refinancings and
modification of the debts) whether now existing or created or incurred in the
future, due or to become due, or absolute or contingent, except for any
obligations incurred by borrower after the date of this guaranty for which the
borrower meets your standard of creditworthiness based on the borrower's own
assets and income without the addition of a guaranty, or to which, although you
require the addition of a guaranty, the borrower chooses someone other than me
to guaranty the obligation.
APPLICABLE LAW - This agreement is governed by the law of the state in which you
are located. Any term of this agreement that does not comply with applicable law
will not be effective if that law does not expressly or impliedly permit
variations by agreement. If any part of this agreement cannot be enforced
according to its terms, this fact will not affect the balance of this agreement.
REVOCATION - I agree that this is an absolute and continuing guaranty. If this
guaranty is limited to the payment of a specific debt of the borrower described
above, this agreement cannot be revoked and will remain in effect until the debt
is paid in full. If this guaranty covers both the borrower's present and future
debts, I agree that this guaranty will remain binding on me, whether or not
there are any debts outstanding, until you have actually received written notice
of my revocation or written notice of my death or incompetence.
Notice of revocation or notice of my death or incompetence will not
affect my obligations under this guaranty with respect to any debts incurred by
or for which you have made a commitment to borrower before you actually receive
such notice, and all renewals, extensions, refinancings, and modifications of
such debts. I agree that if any other person signing this agreement provides a
notice of revocation to you, I will still be obligated under this agreement
until I provide a notice of revocation to you. If any other person signing this
agreement dies or is declared incompetent, such fact will not affect my
obligations under this agreement.
OBLIGATIONS INDEPENDENT - I agree that I am obligated to pay according to the
terms of this guaranty even if any other person has agreed to pay the borrower's
debt. My obligation to pay according to the terms of this guaranty shall not be
affected by the illegality, invalidity or unenforceability of any notes or
agreements evidencing the debt, the violation of any applicable usury laws,
forgery, or any other circumstances which make the indebtedness unenforceable
against the borrower.
I will remain obligated to pay on this guaranty even if any other
person who is obligated to pay the borrower's debt, including the borrower, has
such obligation discharged in bankruptcy, foreclosure, or otherwise discharged
by law. In such situations, my obligations shall include post-bankruptcy
petition interest and attorneys' fees and any other amounts which borrower is
discharged from paying or which do not otherwise accrue to borrower's
indebtedness due to borrower's discharge. I will also be obligated to pay you,
to the fullest extent permitted by law, any deficiency remaining after
foreclosure of any mortgage or security interest securing borrower's debt,
whether or not the liability of borrower or any other obligor for such
deficiency is discharged by statute or judicial decision. If any payments by
borrower to you are thereafter set aside, recovered, rescinded, in whole or in
part, are settled by you at your discretion, or are in any way recouped or
recovered from you for any reason (including, without limitation, the
bankruptcy, insolvency, or reorganization of borrower or any other obligor),
then I am obligated to reimburse or indemnify you for the full amount you so pay
together with costs, interest, attorneys' fees and all other expenses which you
incur in connection therewith. I also agree that if my liability is limited to a
stated principal amount (plus other agreed charges), you may allow the borrower
to incur debt in excess of the specified amount and apply to the payment of such
excess any amounts you receive for payment of the debt from the borrower or any
other person, any amounts resulting from any collateral, or amounts received
from any other source, without affecting my obligations under this agreement.
No modification of this agreement is effective unless in writing and
signed by you and me, except that you may, without notice to me and without the
addition of a signed writing or my approval: (1) release any borrower or other
person who may be liable for borrower's debt, (2) release or substitute any
collateral, (3) fail to perfect any security interest or otherwise impair any
collateral, (4) waive or impair any right you may have against any borrower or
other person who may be liable for borrower's debt, (5) settle or compromise any
claim against the borrower or any person who may be liable for the borrower's
debt, (6) procure any additional security or persons who agree to be liable for
borrower's debt, (7) delay or fail to pursue enforcement of the debt, (8) apply
amounts you receive from the borrower or other persons to payment of the debt in
any order you select, (9) make any election with respect to the debt provided by
law or any agreement with any person liable for the debt, (10) exercise or fail
to exercise any rights you have with respect to the debt, (11) extend new credit
to the borrower, or (12) renew, extend, refinance or modify the borrower's debt
on any terms agreed to by you and the borrower (including, but not limited to,
changes in the interest rate or in the method, time, place or amount of payment)
without affecting my obligation to pay under this guaranty.
WAIVER - I waive presentment, demand, protest, notice of dishonor, and notice of
acceptance of this guaranty. I also waive, to the extent permitted by law, all
notices, all defenses and claims that the borrower could assert, any right to
require you to pursue any remedy or seek payment from any other person before
seeking payment under this agreement, and all other defenses to the debt, except
payment in full. You may without notice to me and without my consent, enter into
agreements with the borrower from time to time for purposes of creating or
continuing the borrower's debt as allowed by this guaranty. I agree that I will
be liable, to the fullest extent permitted by applicable law, for any deficiency
remaining after foreclosure (or repossession) and sale of any collateral without
regard to whether borrower's obligation to pay such deficiency is discharged by
law. If any payments on the debt are set aside, recovered or required to be
returned in the event of the insolvency, bankruptcy or reorganization of the
borrower, my obligations under this agreement will continue as if such payments
had never been made.
I also waive and relinquish all present and future claims, rights,
and remedies against borrower or any other obligated party arising out of the
creation or my performance of this guaranty. My waiver includes, but is not
limited to, the right of contribution, reimbursement, indemnification,
subrogation, exoneration, and any right to participate in any claim or remedy
you may have against the borrower, collateral, or other party obligated for
borrower's debts, whether or not such claim, remedy, or right arises in equity,
or under contract, statute or common law.
REMEDIES - If I fail to keep any promise contained in this agreement or any
agreement securing this agreement, you may, make this agreement and the
borrower's debt immediately due and payable, you may set-off this obligation
against any right I have to receive money from you (however, you may not set-off
against any accounts in which my rights are only as a fiduciary or my IRA or
other tax-deferred retirement account), you may use any remedy you have under
state or federal law, and you may use any remedy given to you by any agreement
securing this agreement. If I die, am declared incompetent, or become insolvent
(either because my liabilities exceed my assets or because I am unable to pay my
debts as they become due), you may make the debt immediately due and payable.
COLLECTION COSTS - Except when prohibited by law, I agree to pay the reasonable
costs and expenses you incur to enforce and collect this agreement, including
attorneys' fees and court costs.
SECURITY - This guaranty is [X] unsecured [ ] secured by .
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NOTICE TO COSIGNER
You are being asked to guarantee the debts described above. If you are
making a "Present and Future Debt Guaranty" as identified above, you are being
asked to guarantee PRESENT as well as FUTURE debts of the borrower entered into
with this lender. Think carefully before you do. If the borrower doesn't pay
these debts, you will have to. Be sure you can afford to pay if you have to, and
that you want to accept this responsibility.
You may have to pay up to the full amount of these debts if the borrower
does not pay. You may also have to pay late fees or collection costs, which
increase this amount.
The lender can collect these debts from you without first trying to collect
from the borrower. The lender can use the same collection methods against you
that can be used against the borrower, such as suing you, garnishing your wages,
etc. If these (SEAL) debts are ever in default, that fact may become part of
YOUR credit record.
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In witness whereof, I have signed my name and affixed my seal on this 10 day of
DECEMBER, 1996 , and, by doing so, agree to the terms of this guaranty and
acknowledge having read the Notice to Cosigner.
\s\ Joseph M. Harris (SEAL)
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Joseph M. Harris
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(SEAL)
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(SEAL)
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2
STATE OF North Carolina
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COUNTY OF Mecklenburg
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I, Dianne E. McNeff , a notary public for said state and county,
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(NAME OF NOTARY PUBLIC)
do hereby certify that Joseph M. Harris personally appeared
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before me this day and acknowledged the due execution of the foregoing
instrument in writing.
WITNESS my hand and notarial seal, this 13th day of December , 1996 .
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/s/ Dianne E. McNeff
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(SIGNATURE OF NOTARY PUBLIC)
My Commission Expires:
March 2, 1999
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(NOTARY SEAL)
STATE OF __________________________
COUNTY OF _________________________
This the day of , 19 ,
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personally appeared before me
__________________________________________ , who, being by me first duly sworn,
(NAME OF (VICE) PRESIDENT OF CORPORATE GUARANTOR)
says that he is the (Vice) President of ______________________________________;
(NAME OF CORPORATE GUARANTOR)
that the seal affixed to the foregoing instrument in writing is the corporate
seal of said corporation, and that the said writing was signed and sealed by
him/her on behalf of said corporation by its authority duly given. And the said
(Vice) President acknowledged the said writing to be the act and deed of said
corporation.
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(SIGNATURE OF NOTARY PUBLIC)
My Commission Expires:
______________________________
(NOTARY SEAL)