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HomeMy WebLinkAboutCedar Skyeline Corporation - Commercial Guaranty - 3.20.2006 COMMERCIAL GUARANTY .......... .......... It Ur :::::::: ......................... ..... ...... ......... ........ M ............... 0 ...... .......... .......... ......... ..... ............ ts X., 34 611> XXX 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. Borrower: Cedar Skyline Corporation Lender: MidWestOne Bank 329 E.4th St. Waterloo Office Waterloo, IA 50703-4703 405 Jefferson Street Waterloo, IA 50701 (877)842-5358 Guarantor: City of Waterloo 715 Mulberry St. Waterloo, [A 50703 GUARANTEE OF PAYMENT AND PERFORMANCE. For good and valuable consideration, Guarantor absolutely and unconditionally guarantees full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender, and the performance and discharge of all Borrower's obligations under the Note and the Related Documents. This is a guaranty of payment and performance and not of collection, so Lender can enforce this Guaranty against Guarantor even when Lender has not exhausted Lender's remedies against anyone else obligated to pay the Indebtedness or against any collateral securing the Indebtedness, this Guaranty or any other guaranty of the Indebtedness. Guarantor will make any payments to Lender or its order, on demand, in legal tender of the United States of America, in same-day funds, without set-off or deduction or counterclaim, and will otherwise perform Borrower's obligations under the Note and Related Documents. INDEBTEDNESS. The word "Indebtedness" as used in this Guaranty means all of the principal amount outstanding from time to time and at any one or more times, accrued unpaid interest thereon and all collection costs and legal expenses related thereto permitted by law, attorneys' fees, arising from any and all debts, liabilities and obligations that Borrower individually or collectively or interchangeably with others, owes or will owe Lender under the Note and Related Documents and any renewals, extensions, modifications, refinancings, consolidations and substitutions of the Note and Related Documents. If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Lender's rights under all guaranties shall be cumulative. This Guaranty shall not (unless specifically provided below to the contrary) affect or invalidate any such other guaranties. Guarantor's liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties. CONTINUING GUARANTY. THIS GUARANTY ENCOMPASSES A LINE OF CREDIT AND GUARANTOR UNDERSTANDS AND AGREES THAT THIS GUARANTY SHALL BE OPEN AND CONTINUOUS UNTIL THE INDEBTEDNESS IS PAID IN FULL AND THE LENDER DECLARES THAT THE LINE OF CREDIT IS FULLY SATISFIED, PERFORMED AND TERMINATED. 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 the Indebtedness 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. Release of any other guarantor or termination of any other guaranty of the Indebtedness shall not affect the liability of Guarantor 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. GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, without notice or demand and without lessening Guarantor's liability under this Guaranty, from time to time: (A) 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 in 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; (1) 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) to give notice of the terms, time, and place of any public or private sale of personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial Code; (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. Guarantor also waives any and all rights or defenses based on suretyship or impairment of collateral including, but not limited to, any 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 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. COMMERCIAL GUARANTY Page 3 (Continued) HIS GUARANTY AND AGREES TO ITS EACH UNDERSIGNED ,GUARANTORE RANTOR UNE RSTANDSGES IITHAT THIS GUARANTY SG READ ALL THE ISEONS OF FFECTIIVETUPON GUARANTOR'S EXECUTION AND TERMS. IN ADDITION, EACH GY WILL NATED IN THE MANNER SET FORTH DELIVERY OF THIS GUARANTY TON OD R AND THAT HE GUA FORMAL CEPTANOCETBY LENDER IS NECIESSARY TO MAKE THIS GUARANTY IN THE SECTION TITLED "DURAT EFFECTIVE. THIS GUARANTY IS DATED MAY 26, 2006. GUARANTOR ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS COMMERCIAL GUARANTY AND ALL OTHER DOCUMENTS RELATING TO THIS DEBT. GUARANTOR: CITY OF WATERLOO By: Tim Hurley, Mayor of City of Waterloo LASER PRO Lending,Ver.5,31.00.004 Cope,Harland Finenciel Solusions,Inc,1997,2008, All Righrs fleservad. -IA LACFI1LPL1E20.FC TR-24248 PR-41 NOTICE OF FINAL AGREEMENT Prv. inCtpal L4� r D #e M� urit Ldn 5tl carr t c 34 Ac�ourtt 67 Bir. #nitia#s 257:6CJQ.UQ.: 05-Zt3-2Qi16 U6-fl1-21310 References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular an or item. Any item above containing " ' has been omitted due to text length limitations. Lender: MidWestOne Bank Borrower: Cedar Skyline Corporation Waterloo Office 329 E. 4th St. 405 Jefferson Street Waterloo, IA 50703-4703 Waterloo, IA 50701 (877) 842-5358 IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THE LOAN AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED CHANGE THE TERMS OFTHELOANEN AGREEMENT B AGREEMENT ONLY BY ANOTHER ENFORCED.EGALLY BORROWER MAY WRITTEN AGREEMENT. As used in this Notice,the following terms have the following meanings: Loan. The term "Loan" means the following described loan: a Fixed Rate (7.250%) Nondisclosable Draw Down Line of Credit Loan to a Corporation for $257,600.00 due on June 1, 2010. Loan Agreement. The term "Loan Agreement" means one or more promises, promissory notes, agreements, undertakings, security agreements, deeds of trust or other documents, or commitments, or any combination of those actions or documents, relating to the Loan, including without limitation the following: LOAN DOCUMENTS Corporate Resolution: Cedar Skyline Corporation Customer Information Profile: Cedar Skyline Corporation Promissory Note IA Commercial Guaranty: City of Waterloo IA Mortgage for Real Property located Parking Lot accessing Ao Agreement e to Provide near Insurance:Lafayette Real Propeoo,rty l ca ed Parking near 614 Lafayette St., Waterloo, IA 50703 Notice of Insurance Requirements: Real Property located owned by Cedar Skyline Corporation Parking Lot accessing near 614 Lafayette St., Waterloo, IA Disbursement Request and Authorization 50703 Notice of Final Agreement W-9 Request for Taxpayer ID Number and Certification Parties. The term "Parties" means MidWestOne Bank and any and all entities or individuals who are obligated to repay the loan or have pledged property as security for the Loan, including without limitation the following: Borrower: Cedar Skyline Corporation Grantor(s): Cedar Skyline Corporation Guarantor 1: City of Waterloo Each Party who signs below, other than MidWestOne Bank, acknowledges, represents, and warrants to MidWestOne Bank that it has received, read and understood this Notice of Final Agreement. This Notice is dated May 26, 2006. BORROWER: CEDAR SKYLINE CORPORATION By: By: Sherryl Newton, President of Cedar Skyline Michael Butler, SeclTreas of Cedar Skyline Corporation Corporation GUARANTOR: CITY OF WATERLOO By: Tim Hurley, Mayor of City of Waterloo LENDER: MIDWESTONE BANK X Authorized Signer LASER PRO Lendin B.Ver.5.31.00.004 Cop,.Harland Financial S-i.—Inc.1997.2006, All Rights Reserved. -IA L:\CFALPL 121.FC TR 24248 PR-41