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TC Res. No. 1997-57RESOLUTION NO. 97-57 A RESOLUTION AUTHORIZING A GUARANTEE OF INDEBTEDNESS. WHEREAS, Section 8.1 of the Charter of the Town of Avon requires that the Town Manager reside within the Town during the tenure of his office; and WHEREAS, it is determined by the Town Council that, by reason of the cost of housing within the Town, the aforesaid provision cannot reasonably be complied with by the Town Manager without the assistance of the Town; and WHEREAS, it is determined by the Town Council that a public purpose will be served if the Town assists the Town Manager in the purchase of housing within the Town; NOW, THEREFORE, BE IT RESOLVED as follows: 1. The Mayor of the Town is authorized, on behalf of the Town, to enter into a guarantee of indebtedness of the Town Manager to FirstBank of Avon, such guarantee to be limited to the amount of $22,500.00 but to include interest and expenses and costs of collection including reasonable attorney's fees. 2. Such guarantee shall be secured by a promissory note and second deed of trust on the real property purchased by the Town Manager. It shall be an event of default thereunder if the Town Manager ceases to be town manager without having secured a release of the Town's guarantee. ADOPTED at a regular meeting the 14th day of October, 1997. Town Clerk AWN OF,4y~~ ~..N.M M.~ O SFAI, Mayo Ile-06 iR OF AVON 0011 West Beaver Creek Boulevard P.O. Drawer 5270 Avon, CO 81620 (970) 949.0100 "LENDER" LIMITED CONTINUING GUARANTY GUARANTOR BORROWER Town Of Avon William Eftinq PO iBOB 975 ADDRESS. PO BOX 975 ADDRESS Avon, CO 81620 Avon, CO 81620 TEtEpHt1NE tf ElEMMICAT60111 NO. NONE NO. CONSIDERATION. This Guaranty is being executed to induce Lender indicated above to enter into one or more loans or other financial accommodations i or on behalf of Borrower. GUARANTY. Guarantor hereby unconditionally guarantees the prompt and full payment and performance and promises to pay all of Borrower's present I future, joint and/or several, direct and indirect, absolute and contingent, express and implied, indebtedness, liabilities, obligations and covenants mulatively "Indebtedness' to Lender when due (whether upon maturity or by demand, acceleration or otherwise) as follows: LIMITED TO AN AMOUNT: Guarantor's liabilities and obligations under this Guaranty ("Obligations") shall includ CLAdk"IMEN the Indebtedness described below but shall be limited to the principal amount of $ 21, together with all interest and all of Lender's expenses and costs, including but not limited to reasonable attorney's fees, incurred in connection with the Indebtedness, including any repeated amendments, extensions, modifications, renewals, replacements or substitutions thereto. The limitation on the liability of Guarantor shall not apply to any costs incurred by Lender in connection with paragraph 22 hereof. LIMITED TO A PERCENTAGE: Guarantor's liabilities and obligations under this Guaranty ("Obligations") shall include all present and future written agreements between Borrower and Lender (whether executed for the same or different purposes), including but not limited to the Indebtedness described below but shall be limited to % of the Indebtedness (as the Indebtedness may change from time to time), together with all interest thereon and all of Lender's expenses and costs, including but not limited to reasonable attorney's fees, incurred in connection with the Indebtedness including any repeated amendments, extensions, modifications, renewals, replacements, or substitutions thereto. This limitation on the liability of Guarantor shall not apply to any costs incurred by Lender pursuant to paragraph 22 hereof. LIMITED TO THE FOLLOWING DESCRIBED NOTES/AGREEMENTS: Guarantor's liabilities and obligations under this Guaranty ("Obligations") shall be limited to the following described promissory notes and agreements between Borrower and Lender, together with all interest and all of Lender's expenses and costs, including but not limited to reasonable attorney's fees, incurred in connection with the Indebtedness, including any repeated amendments, extensions, modifications, renewals, replacements or substitutions thereto: INTEREST RATE PRNI40 AL AliD11NT CRWIT.L8it IT FUNDING AAREENIENT DATE NIATUR1T1r DATE CUSTG1IAM NUMBER LOAN. . "PURER 8.490% $21,915.85 10/16/97 10/16/98 101-23-4864 9859888 is SECURITY INTEREST. F7 If checked, the Obligations under thGuaranty are secured by a lien on and/or security interest in the property described in documents executed in connection with this Guaranty as well as any other property anywhere designated as security for this Guaranty now or in the ire. ABSOLUTE AND CONTINUING NATURE OF GUARANTY. Guarantor's Obligations are absolute and continuing and shall not be affected or impaired if ider repeatedly and unconditionally amends, renews, extends, compromises, exchanges, fails to exercise or perfect rights in, impairs or releases any ateral or any of the Indebtedness owed by any Borrower, Co-guarantor or third party or any of Lender's rights against any Borrower, Co-guarantor, third ty, or collateral. In addition, the Obligations shall not be affected or impaired by the discharge (including but not limited to any inability to collect a iciency judgment against) death, incompetency, termination, dissolution, insolvency, business cessation, or other financial deterioration of any Borrower, arantor, or third parry or by any state of facts or the happening from time to time of any event, including without limitation: The invalidity, irregularity, )silty or unenforceability of, or any defect in, the promissory note or any agreement or any collateral security for the Obligation (the "Collateral"); Any sent or future law or order of any government de lure or de facto or of any agency thereof purporting to reduce, amend or otherwise affect the ebtedness of the Borrower or any other obligor or any other terms of payment; The waiver, compromise, settlement, release or termination of any or all of obligations, covenants or agreements of the Borrower under the promissory note or any agreement or of any party named as a Guarantor under this aranty; The failure to give notice to the Guarantor of the occurrence of an event of default under the promissory note or any other agreement; The loss, lase, sale, exchange, surrender or other change in any Collateral; The repeated extension of the time for payment of any principal of or interest on the ebtedness or of the time for performance of any obligations, covenants or agreements under or arising out of the promissory note or any agreement or the anion or the repeated renewal of any thereof; The modification or amendment (whether material or otherwise) of any obligation, covenant or agreement forth in the promissory note or any agreement; The taking of, or the omission to take, any of the actions referred to in the promissory note or any eement; Any failure, omission or delay on the part of the Lender to enforce, assert or exercise any right, power or remedy conferred on the Lender in the missory note or any agreement, The voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, rshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition creditors or readjustment of, or other similar proceedings affecting the Guarantor or the Borrower or any of their assets, or any allegation or contest of the dity of the promissory note or any agreement; The default or failure of the Guarantor to fully perform any Obligations set forth in this Guaranty; Any event action that would, in the absence of this paragraph, result in the release or discharge of the Guarantor from the performance or observance of any ligation, covenant or agreement contained in this Guaranty; and Any other circumstances which might otherwise constitute a legal or equitable discharge iefense of a surety or a guarantor. ARANTOR ACKNOWLEDGES GUARANTOR HAS READ, UNDERSTANDS, AND AGREES TO THE TERMS AND CONDITIONS OF THIS GUARANTY ;LUDING THE TERMS AND CONDITIONS ON THE REVERSE SIDE. GUARANTOR HAS EXECUTED THIS AGREEMENT WITH THE INTENT TO BE LEGALLY UND NOTWITHSTANDING ANY FAILURE BY ANY OTHER PERSON TO SIGN THIS GUARANTY. GUARANTOR ACKNOWLEDGES RECEIPT OF AN EXACT ,PY OF THIS GUARANTY. sd: October 16, 1997 RANTOR: Town Of Avon lc iP8wC@LL ly RANTOR: )I208 © FormAtion Technologies, Inc. (2/8/85) (800) 937-3799 GUARANTOR: GUARANTOR: \ 4.,,y.~ 4.✓ ~ t & DIRECT AND UNCONDITIONAL NATURE OF GUARANTY. Guarantor's Obligations are direct and unconditional and may be enforced without requh Lender to exercise, enforce, or exhaust any right or remedy against any Borrower, Co-guarantor, third party, or any security or the Collateral. 6. WAIVER. Guarantor hereby waives notice of the acceptance of this Guaranty; notice of present and future extensions of credit and other finan accommodations by Lender to any Borrower; notice of the obtaining or release of any guaranty, assignment, or other security for any of the Indebtedne notice of presentment for payment, demand, protest, dishonor, default, and nonpayment pertaining to the Indebtedness and this Guaranty and all of notices and demands pertaining to the Indebtedness and this Guaranty; any and all defenses to payment as permitted by law. 7. NATURE OF GUARANTY. This Guaranty is a guaranty of payment and not of collection and the Guarantor hereby waives the right to require that action be brought first against the Borrower or any other Guarantor, or any security, or to require that resoh be made to any security or to any balance of deposit account or credit on the books of the Lender in favor of the Borrower or of any Guarantor. 8. DEFAULT. Guarantor shall be in default under this Guaranty in the event that any Guarantor: (a) fails to pay any amount under this Guaranty, or any Obligation to Lender when due (whether such amount is due at maturity, by acceleration, o otherwise); (b) fails to perform any obligation or breaches any warranty or covenant to Lender contained in any loan document or this Guaranty or any othe present or future promissory note or written agreement; (c) provides or causes any false or misleading signature or representation to be provided to Lender; (d) sells, conveys, or transfers rights in any Collateral securing this Guaranty without the written approval of Lender, or destroys, loses or damages suct collateral in any material respect, or subjects such Collateral to seizure or confiscation; (e) has a garnishment, judgment, tax levy, attachment or lien entered or served against any Guarantor, or any of their property; (f) dies; becomes legally incompetent, is dissolved or terminated, ceases to operate its business, becomes insolvent, makes an assignment for thi benefit of creditors, or becomes the subject of any bankruptcy, insolvency or debtor rehabilitation proceeding; or (g) causes Lender to deem itself insecure due to a significant decline in the value of any real or personal property securing payment of this Guaranty, o Lender, in good faith, to believe the prospect of payment or performance is impaired. 9. RIGHTS bF LENDER ON DEFAULT. If there is a default under this Guaranty, Lender shall be entitled to exercise one or more of the following remec without notice or demand (except as required by law): (a) to declare Guarantor's Obligations under this Guaranty immediately due and payable in full; (b) to collecGthe outstanding Obligations under this Guaranty with or without resorting to judicial, process; (c) to take possession of any Collateral in any manner, permitted by law; (d) to require Guarantor to deliver and make available to Lender any Collateral at a place reasonably convenient to Guarantor and Lender; (e) to sell, lease or otherwise dispose of any Collateral and collect any deficiency balance with or without resorting to judicial process; (f) to set-off Guarantor's Obligations against any amounts'due to Guarantor including, but not limited to, monies, instruments, and deposit account( maintained with Lender; and (g) to exercise all other rights available to Lender under any other written agreement or applicable law. Lender's rights are cumulative and may be exercised together, separately, and in any order. Lender's remedies under this paragraph are in addition to th available at common law, including, but not limited to, the right of set-off. 10. SUBORDINATION. The payment of any present or future indebtedness of Borrower to Guarantor will be postponed and subordinated to the paymer full of any present or, future Indebtedness of Borrower to Lender 'during the term of this Agreement. In the event that Guarantor receives any man instruments, or other remittances to be applied against Borrower's obligations to Guarantor, Guarantor will hold these funds in trust for Lender immediately endorse or assign (if necessary) and deliver these monies, instruments and other remittances to Lender. Guarantor agrees that Lender shat preferred to Guarantor in any assignment for the benefit of Borrower's creditors in any bankruptcy, insolvency, liquidation, or reorganization proceed commenced by or against Borrower in any federal or state court. 11. INDEPENDENT INVESTIGATION. Guarantor's execution and delivery'to Lender of this Guaranty is based solely upon: Guarantor's indepenc investigation of Borrower's financial condition and not upon any written or oral representation of Lender in any manner. Guarantor assumes full responsit for obtaining any additional information regarding Borrower's financial condition and Lender shall not be required to furnish Guarantor with any informatio any kind regarding Borrower's financial condition. 12. ACCEPTANCE OF RISKS. Guarantor acknowledges the absolute and continuing nature of this Guaranty and voluntarily accepts the full range of r associated herewith including; but not limited to, the risk that Borrower's financial condition shall deteriorate or, if this Guaranty is unlimited, the risk Borrower shall incur additional Indebtedness to Lender in the future. 13. SUBROGATION. Guarantor hereby irrevocably waives and releases the Borrower from all "claims" (as defined in Section 101(5) of the Bankruptcy Cc to which Guarantor is or would, at any time, be entitled by virtue of its obligations under this Guaranty, including, without limitation, any right of subroga (whether contractual, under Section 509 of the Bankruptcy Code or otherwise), reimbursement, contribution, exoneration or similar right against the Borroi any co-guarantor, any third party or any Collateral. 14. APPLICATION OF PAYMENTS. Lender will be entitled to apply any payments or other monies received from Borrower, any third party, or any collat against Borrower's present and future Indebtedness to Lender in any order. 15. TERMINATION. This Guaranty shall remain in full force and effect until Lender executes and delivers to Guarantor a written release thereof. I& ASSIGNMENT. Guarantor agrees not to assign any of Guarantor's rights or Obligations described in this Guaranty without Lender's prior written cone which may be withheld by Lender in its sole discretion. Guarantor agrees that Lender is entitled to assign some, or all of its rights and remedies describe this Guaranty without notice to or the prior'oonsent of Guarantor in any manner. Unless the Lender shall otherwise consent in writing,'the Lender shall h an unimpaired right prior and superior to that of any assignee, to enforce this Guaranty for the benefit of the Lender, as to those Obligations that the Ler ties not assigned. 17: MODIFICATION AND WAIVER. The modification or waiver of any of Guarantor's Obligations or Lender's rights under this Guaranty must be contain a writing signed by Lender. Lender may delay in exercising or fail to exercise any of its rights without causing a waiver of those rights. A waiver on occasion shall not constitute a waiver on any other occasion. I& SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon and inure to the benefit of Guarantor and Lender and their respective success assigns, trustees, receivers, administrators, personal representatives, legatees, and devisees. 19. NOTICE. Any notice or other communication to be provided under this Guaranty shall be in writing and sent to the parties at the addresses describe this Guaranty or such other addresses as the parties may designate in writing from time to time. 20.• SEVERABILITY. If any provision of this Guaranty is invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisi shall not in any way be affected or impaired thereby. 21. APPLICABLE LAW. This Guaranty shall be governed by the, laws of the state indicated in Lender's. address. Unless applicable law provides otherw Guarantor consents to the jurisdiction and venue of any court located in such state selected by Lender, in its discretion, in the'event of any legal proceed under this Guaranty. 22. COLLECTION COSTS. To the extent permitted by law, Guarantor agrees to pay Lender's reasonable fees and costs, including but not limited to f and costs of attorneys and other agents (including without. limitation paralegals, clerks and consultants), whether or not any attorney or agent is an emplo of Lender, which are incurred by Lender in collecting any, amount due or enforcing any right or remedy under this Guaranty, including, but not limited to fees and costs incurred on appeal, in bankruptcy; and for post judgment collection actions, and whether or not suit is brought. . 23. REPRESENTATIONS OF GUARANTOR. Guarantor acknowledges receipt of reasonably equivalent value in consideration fo- r_ the execution of Guaranty and represents that, after giving effect to this Guaranty, the fair market value of Guarantor's assets exceeds Guarantor's total liabilities, ineiud contingent, subordinate and unliquidated liabilities, that Guarantor has sufficient cash flow to meet debts as they mature, and that Guarantor does not h unreasonably small capital.- Guarantor represents that all required director and shareholder consents to enter into this Guaranty have been obtained. 24. MISCELLANEOUS. Guarantor and Lender agree that time is of the essence. Guarantor will provide Lender with a current financial statement ul request. All references to Guarantor in this Guaranty shall include all entities or persons signing this Guaranty. If there is more than one Guarantor, ti obligations under this Guaranty shall be joint and several. This Guaranty represents the complete and integrated understanding between Guarantor i Lender regarding the terms hereof. 25. WAIVER OF JURY TRIAL LENDER AND GUARANTOR HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY CIVIL ACTION ARISING OUT OR BASED UPON, THIS GUARANTY. 26. ADDITIONAL TERMS: - - MAST2088 0 FormAtion Technologies, Inc. (2/8/85) (800) 837-3788