Sample from Florida Legal Forms, Volume 9, Specialized Forms Copyright 1990, 2019 James W. Martin, Esq. All rights reserved. Provided for background information only, not legal advice.I www.jamesmartinpa.com

CHAPTER 18

GUARANTIES AND SURETIES

Table of Sections

A. INTRODUCTION Sec. 18.1 In General.

B. PAYMENT OF INDEBTEDNESS

18.10 Guaranty of Money Advanced. 18.11 Guaranty of Past Debt in Consideration of Forbearance. 18.12 Guaranty of Past Debt in Consideration of Creditor Discontinuing

Proceedings: 18.13 __ Another Form. 18.14 Guaranty of Past Debt in Consideration of Extension of Time of

Payment. 18.15 Continuing Guaranty of Money to Be Advanced-Limited as to Period

and Amount. 18.16 __ Unlimited as to Period and Amount-With Power of Attorney. 18.17 Continuing Guaranty by Corporation of Money to Be Advanced­

Security Interest Granted to Bank in Guarantor's Tangible and Intangible Personal Property (Uniform Commercial Code).

18.18 Continuing Guaranty to Bank of Past and Future Indebtedness-Limited as to Amount.

18.19 ____ Another Form. 18.20 ____ Another Form. 18.21 Continuing Guaranty of Past and Future Indebtedness-Both Uncondi­

tional Liability and Conditional Liability Limited as to Amount. 18.22 Continuing Guaranty by Stockholders of Past and Future Obligations

of Corporation. 18.23 __ Another Form.

C. PAYMENT FOR GOODS SOLD ON CREDIT

18.50 Guaranty of Payment for Goods Sold-Limited to One Transaction. 18.51 __ Short Form. 18.52 Guaranty of Payment on Installment Sale-Limited to One Transac­

tion. 18.53 Continuing Guaranty of Payment to Merchandise Creditor-Limited as

to Amount. 18.54 Continuing Guaranty for Payment of Goods to Be Supplied-Limited as

to Amount. 18.55 ____ Guarantors Liable in Unequal Sums. 18.56 Continuing Guaranty of Payment on Installment Sale-Limited as to

Amount.

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Ch. 18 GUARANTIES AND SURETIES

Sec. 18.57 Continuing Guaranty Clause. 18.58 Guaranty Agreement.

D. PERFORMANCE OF CONTRACTS

18.90 Guaranty of Performance and Indemnity. 18.91 Guaranty of Performance of Agent's Agreement.

E. NOTICES

18.100 Notice of Acceptance of Guaranty. 18.101 Notice to Guarantor That Principal Has Made Default. 18.102 Notice of Revocation of Guaranty. 18.103 __ Where a Power of Revocation Is Reserved. 18.104 __ By Legal Representative.

§ 18.1

18.105 Consumer Credit Transaction-Notice to Sureties-Federal Trade Com­mission Rule.

F. MISCELLANEOUS

18.120 Guaranty by a Vendor That Earnings From Property Sold Shall Reach a Minimum Amount.

18.121 Guaranty Against Loss Attributable to Misconduct of a Salesman. 18.122 Guaranty of the Fidelity of a Chief Assistant in a Business. 18.123 Guaranty of the Fidelity of a Clerk. 18.124 Guaranty of Number of Subscribers to Publication. 18.125 Guaranty of Payment for Newspaper Advertising.

Library References: C.J.S. Guaranty §§ 18, 25, 55. West's Key No. Digests, Guaranty e=>9, 39.

A. INTRODUCTION

§ 18.1 In General

A guaranty is a collateral undertaking by one person to be answer­able for the payment of some debt or the performance of some contract or act for another person who stands first bound to pay or perform. 1

The contract falls within the statute of frauds, which, in the form in which it is usually enacted, provides that no action shall be brought whereby to charge the defendant upon any special promise to answer

§ 18.1

I. C.J.S. Guaranty § 1.

Compare definition of surety. A surety, in the narrow sense, is one who is liable, in form primarily on the debt or obligation of another. A surety, in the broad sense, is one who is liable for the debt or obligation

of another, whether primarily or secondari­ly, conditionally or unconditionally. See Simpson on Suretyship § 1-7 (1950). The Restatement of Security defines surety in the broad sense in § 82. Similarly, Uni­form Commercial Code § 1-201(40) states: " 'Surety' includes guarantor."

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§ 18.1 GUARANTIES AND SUREl'IES Ch. 18

for the debt, default, or miscarriage of another person unless the agreement upon which the action shall be brought or some note or memorandum thereof shall be in writing and signed by the party to be charged, or some other person by him thereunto lawfully authorized. 2

A guaranty of payment is an undertaking by the guarantor to pay a debt at maturity if the principal debtor does not. A guarantor of collection, on the other hand, is a guaranty that the claim guaranteed is collectable by due diligence, and if not so collectable, that the guarantor will pay.3 A continuing guaranty is generally described as a contract resulting from an offer to answer for the debt of a principal in a series of credit extensions. 4

§§ 18,2-18,9 are reserved for supplementary material.

B. PAYMENT OF INDEBTEDNESS

§ 18.10 Guaranty of Money Advanced To __ _

I hereby guaranty the payment to you of the sum of __ _ dollars, which you have this day advanced to ___ at my request and upon my promise of such guaranty, with interest at the rate of ___ per cent per year from the date of your sending by registered mail to me a written demand for payment of said sum of __ _ dollars.

[Date] [Signature]

§ 18.11 Guaranty of Past Debt in Consideration of Forbear­ance

To __ _

In consideration of your having at my request agreed not to bring any action or proceeding against ___ to enforce payment of the sum of $ ___ due by him to you for goods sold and delivered, I hereby guaranty the payment to you of that sum, with interest at the

2. C.J.S. Frauds, Statute of §§ 12-31. See Simpson on Suretyship §§ 31-40 (1950). F.S.A. § 725.01.

3. C.J.S. Guaranty § 7. See Uniform Commercial Code § 3-416(1) and (2) which reads:

(1) ''Payment guaranteed" or equiva­lent words added to a signature mean that the signer engages that if the in­strument is not paid when due he will pay it according to its tenor without re­sort by the holder to any other party.

244

(2) "Collection guaranteed" or equiva­lent words added to a signature mean that the signer engages that if the in­strument is not paid when due he will pay it according to its tenor, but only after the holder has reduced his claim against the maker or acceptor to judg­ment and execution has been returned unsatisfied, or after the maker or ac­ceptor has become insolvent or it is oth­erwise apparent that it is useless to pro­ceed against him.

4. See Restatement of Security § 82g.

Ch. 18 GUARANTIES AND SURETIFS § 18.14 rate of ___ per cent per year from the ___ day of __ _ 19_, within days from the date hereof.

[Date] [Signature]

§ 18.12 Guaranty of Past Debt in Consideration of Creditor Discontinuing Proceedings

To __ _

In consideration of your having at my request agreed to discontinue all legal and other proceedings which you are entitled to maintain against fprincipal debtor]; of __ _, in respect of the sum of __ _ dollars now due and owing to you from him, I hereby guarantee the payment thereof, together with all reasonable cost.a, charges and ex-penses up to, but not exceeding, ___ dollars, as have already been incurred by you for the purpose of recovering the said sum of __ _ dollars, by equal weekly [or, monthly, or, quarterly] installment.a, com­mencing on the day of __ _, 19_.

[Date] [Signature]

§ 18.13 Guaranty of Past Debt in Consideration of Creditor Discontinuing Proceedings-Another Form

A.B. & Co. having, at my request, agreed to discontinue the proceedings instituted by them against [principal debtor], to enforce payment of ___ dollars due by him to them, I hereby guarantee the payment of that sum, and of ___ dollars as cost.a, within __ _ days from date.

[.Date] [Signature ]

§ 18.14 Guaranty of Past Debt in Consideration of Extension of Time of Payment

In consideration of the execution of the foregoing agreement by ___ Company, which we have read, or heard read, and fully understand and hereby agree and assent to, and it.s promise to sell, and the sale and delivery by it, to the Purchaser as vendee, of goods and other articles, and the extension of the time of payment of the indebted­ness owing by him to said Company, as therein provided, we, the undersigned sureties, do hereby waive notice of the acceptance of this agreement, notice of default or of nonpayment and waive action re­quired, upon notice, by any · statute, against the Purchaser; and we jointly, severally and unconditionally promise, agree and guarantee to pay said indebtedness, the amount of which is now written in said agreement, or if not written therein, we hereby authorize the amount of said indebtedness to be written therein; and we jointly, severally and unconditionally promise to pay for said goods and other articles, and the prepaid transportation charges thereon, at the time and place, and

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§ 18.14 GUARANTIES AND SURETIES Ch. 18

in the manner in said agreement provided. And we further severally agree that, in case of the death of one or more of us, the undersigned sureties, before the expiration or termination of this agreement, his estate shall continue liable with the surviving surety or sureties for all shipments made to the Purchaser prior to receipt by the Company at ___ of written notice by registered mail of such death.

Sureties Sign Here in Ink

Name Occupation Address [Seal] [Seal] [Seal]

§ 18.15 Continuing Guaranty of Money to Be Advanced­Limited as to Period and Amount

To __ _

In consideration of your having at our request agreed to advance to ___ any sums of money he may require during the period of one year from the date hereof, not exceeding in the aggregate the sum of $ __ _, we, the undersigned, hereby guaranty to you the repayment by ___ of all sums of money advanced by you to him as aforesaid, with interest at the rate of ___ per cent per year, subject to the following:

1. Notice of Default. Notice in writing of any default on the part of ___ is to be given by you to us, and within ___ days from its receipt payment shall be made by us of all sums then due from us under this guaranty.

2. Guaranty Continuing. This guaranty is a continuing guaran­ty within the limits aforesaid as to time and amount, and our liability under it is joint and several.

3. Limit of Liability. Under no circumstances shall our total joint and several liability hereunder exceed in the aggregate the sum of $ __ _

4. Withdrawal. Each guarantor shall be at liberty at any time to withdraw from all liability hereunder on payment to you of the sum of $ __ _, or so much thereof as shall not-already have been satisfied by payment or otherwise. In the event of the death of any surety his personal representatives shall be at liberty to exercise a like power of withdrawal, and shall thereby relieve his estate from future liability under this guaranty.

[Date] [Signatures ]

246

Ch. 18 GUARANTIES AND SURETIES § 18.16

§ 18.16 Continuing Guaranty of Money to Be Advanced­Unlimited as to Period and Amount-With Power of Attorney

In consideration of any loans or advances that you may now or hereafter make to either of us, or in consideration of any notes or contracts that you may now or hereafter purchase from either of us, and for the purpose of enabling either of us to obtain credit from you:

Each of us hereby guarantees and as surety individually promises the prompt payment at maturity of any and all indebtedness upon which either of us now is or may hereafter become obligated or bounden to you either as principal, guarantor, surety, endorser, comaker, or assignor on any and all notes or contracts executed, assigned, or sold to, or discounted with you by either of us and endorsed with recourse, partial recourse, repurchase, partial repurchase, or op­tional repurchase;

Each of us hereby agrees that each shall be bound as principal and in the same degree and to the same extent as any one of us upon any obligation of any nature whatsoever, whether direct or. indirect, in respect of which any one of us shall become obligated to you; and the signature of any one of us upon any instrument or document evidencing any such obligation as hereinabove described shall be taken and deemed to be the joint and several signatures of each of us;

Each of us hereby appoints, makes, and designates each of the others his attorney-in-fact and agent for and on his behalf and in his place and stead to obtain loans from you, to receive the proceeds of such loans, and to make, execute and deliver to you any notes and renewal notes evidencing indebtedness to you, and any chattel mortgage, assign­ment, contract, or other written instrument covering or pertaining to any property owned by any one of us individually, jointly, or in common with any one else to secure the repayment of any indebtedness upon which any one of us now is or hereafter may become obligated or bounden to you;

Each of us hereby agrees that the individual signature of any one of us shall be construed to be his signature in his capacity as such agent as well as individually;

Each of us hereby waives presentment and demand for payment, protest and notice of protest for nonpayment and relief from valuation and appraisement laws; consents that extension of time of payment be granted to any of us or any obligor of any notes, contracts, or other evidence of indebtedness executed or assigned to you by any of us without notice to and without releasing the liability of any of us; and waives notice of acceptance of this agreement and of all things done pursuant to this agreement;

Each of us hereby agrees to pay all costs and expenses, including attorney fees, incurred by you in enforcing any obligation of any of us;

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§ 18.16 GUARANTIES AND SURETIFS Ch. 18

Each of us hereby agrees that it shall not be necessary for the holder hereof to resort to legal remedies against any one or all of us before proceeding against any other of them, and that no release of one or more of us, whether by operation of law or by any action of the holder of this agreement, shall release any other of us;

Each of us hereby agrees that all the terms and provisions of this agreement shall be and remain in every particular available to your successors and assigns, and shall be and remain fully binding upon all successors and assigns, including heirs, executors, administrators and personal representatives of each of us; but this agreement shall termi­nate after thirty (30) days following receipt by you from any of us, by registered mail with return receipt, of notice of termination provided, however, that such termination shall not affect your rights arising from any transaction between you and any of us prior to the expiration of such thirty (30) day period;

Each of us hereby ratifies and confirms all that any one of us may do or perform hereunder either for himself individually, or in any other capacity for any one or all of us;

Each of us hereby agrees that the masculine singular pronoun wherever used herein shall mean and include both feminine and plural pronouns wherever applicable.

[Date] [Signatures]

§ 18.17 Continuing Guaranty by Corporation of Money to Be Advanced-Security Interest Granted to Bank in Guarantor's Tangible and Intangible Personal Property (Uniform Commercial Code)

Whereas, ___ (hereinafter referred to as the Borrower), a corporation organized under the laws of Florida, desires or may desire at some time and/ or from time to time to obtain financial accommoda-tion from the ___ Bank (hereinafter, with its successors and assigns, referred to as the Bank); and

Whereas, the undersigned (hereinafter referred to as the Guaran-tor), a corporation organized under the laws of ___ represents that it owns a substantial amount of the stock of the Borrower and expects to derive advantage from each and every such accommodation;

1. Guaranty of Money to Be Advanced. Now, therefore, for valuable considerations, the receipt whereof by the Guarantor is hereby acknowledged, and to induce the Bank, at its option, at any time or from time to time, to extend fmancial accommodation, with or without security, to or for the account of the Borrower, or in respect of which the Borrower may be liable in any capacity (the term fmancial accom­modation including, without limitation, extension of loans, credit or accommodation, or discount or purchase of, or loans on, accounts,

248

Ch. 18 GUARANTIES AND SURETIF.S § 18.17 leases, instruments, securities, documents, chattel paper and other security arrangements, or other property, or entering into exchange contracts), the Guarantor hereby unconditionally guarantees to the Bank, irrespective of the validity, regularity or enforceability of any instrument, writing or arrangement relating to or the subject of any such fmancial accommodation (each such instrument, writing or ar­rangement being hereinafter referred to as, and included in the term, "Credit Arrangement") or of the obligations thereunder and irrespec­tive of any present or future law or order of any government (whether of right or in fact) or of any agency thereof purporting to reduce, amend or otherwise affect any obligation of the Borrower or other obligor or to vary the terms of payment, that the Borrower will promptly perform and observe every agreement and condition in any Credit Arrangement to be performed or observed by the Borrower, that all sums stated to be payable iri, or which become payable under, any Credit Arrangement, and all other sums which may be owing by the Borrower to the Bank now or hereafter, will be promptly paid in full when due, whether at maturity or earlier by reason of acceleration or otherwise, or, if now due, when payment thereof shall be demanded by the Bank, together with interest and any and all legal and other costs and expenses paid or incurred in connection therewith by the Bank, and, in case of one or more extensions of time of payment or renewals, in whole or in part, of any Credit Arrangement or obligation, that the same will be promptly paid or performed when due, according to each such extension or renewal, whether at maturity or earlier by reason of the acceleration or otherwise.

2. Waiver. The Guarantor hereby consents that from time to time, without notice to or further consent of the Guarantor, the performance or observance by the Borrower of any Credit Arrangement or obligation may be waived or the time of performance thereof extend­ed by the Bank, and payment of any obligation hereby guaranteed may be accelerated in accordance with any agreement between the Bank and any party liable with respect thereto, or may be extended, or any Credit Arrangement may be renewed in whole or in part or any collateral therefor may be exchanged, surrendered or otherwise dealt with as the Bank may determine, and any of the acts mentioned in any Credit Arrangement may be done, all without affecting the liability of the Guarantor hereunder. The Guarantor hereby waives presentment of any instrument, demand of payment, protest and notice of nonpay­ment or protest thereof or of any exchange, sale, surrender or other handling or disposition of any such collateral.

3. Guaranty Continuing Until Notice. This guaranty shall be a continuing guaranty, and the co-guarantor or co-guarantors, if any, or any other party liable upon or in respect of any obligation hereby guaranteed may be released without affecting the liability of the Guarantor, and the Bank may continue to act in reliance hereon until

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§ 18.17 GUARANTIES AND SURETIES Ch. 18

the receipt by the Bank of written notice from the Guarantor not to give further accommodation in reliance hereon.

4. Assignment. The Bank may assign this guaranty or any of its rights and powers hereunder, with all or any of the obligations hereby guaranteed, and may assign and/ or deliver to any such assignee any of the Security herefor and, in the event of such assignment, the assignee hereof or of such rights and powers and of such Security, if any of such Security be so assigned and/ or delivered, shall have the same rights and remedies as if originally named herein in place of the Bank, and the Bank shall be thereafter fully discharged from all responsibility with respect to any such Security so assigned and/or delivered.

5. Governing Laws. Notice of acceptance of this guaranty and of the incurring of any and all of the obligations of the Borrower hereinbefore mentioned is hereby waived. This guaranty and all rights, obligations and liabilities arising hereunder shall be construed according to the laws of the State of Florida. Unless the context otherwise requires, all terms used herein which are defined in the Uniform Commercial Code shall have the meanings therein stated.

6. Grant of Security Interest. As security for its obligations hereunder, the Guarantor hereby grants to the Bank a security interest in, a general lien upon and/or right of set-off of, the following (herein referred to as the Security): All personal property and fixtures of the Guarantor, whether now or hereafter existing or now owned or hereaf­ter acquired and wherever located, of every kind and description, tangible or intangible, including, but not limited to, the balance of every deposit account, now or hereafter existing, of the Guarantor with the Bank and any other claim of the Guarantor against the Bank, now or hereafter existing, and all money, goods, instruments, securities, documents, chattel paper, accounts, contract rights, general intangibles, credits, claims, demands and any other property, rights and interests of the Guarantor, and shall include the proceeds, products and accessions of and to any thereof. The right is expressly granted to the Bank, at its discretion, to file one or more financing statements under the Uniform Commercial Code naming the Guarantor as debtor and the Bank as secured party and indicating therein the types or describing the items of Security herein specified. Without the prior written consent of the Bank the Guarantor will not file or authorize or permit to be filed in any jurisdiction any such financing or like statement in which the Bank is not named as the sole secured party. The Bank shall not be required to take any steps necessary to preserve any rights against prior parties to any of the Security.

7. Remedies on Default. In the event of default under this guaranty, the Guarantor shall, at the request of the Bank, assemble the Security at such place or places as the Bank designates in its request. The Bank shall have the rights and remedies with respect to the Security of a secured party under the Uniform Commercial Code

250

Ch. 18 GUARANTIES AND SURETIES § 18.17 (whether or not the Code is in effect in the jurisdiction where the rights and remedies are asserted). In addition, with respect to the Security, or any part thereof, which shall then be or shall thereafter come into the possession or custody of the Bank or any of its agents, associates or correspondents, the Bank may sell or cause to be sold in the City of __ _, County of __ _, Florida, or elsewhere, in one or more sales or parcels, at such price as the Bank may deem best, and for cash or on credit or for future delivery, without assumption of any credit risk, all or any of the Security (including any further collateral furnished under paragraph 8), at any broker's board or at public or private sale, without demand of performance or notice of intention to sell or of time or place of sale (except such notice as is required by applicable statute and cannot be waived), and the Bank or anyone else may be the purchaser of any or all of the Security so sold and thereafter hold the same absolutely, free from any claim or right of whatsoever kind, including any equity of redemption, of the Guarantor, any such demand, notice or right and equity being hereby expressly waived and released. The Bank shall be deemed to have possession of any of the Security in transit to or set apart for it or any of its agents, associates or correspon­dents.

8. Foreign Currency Obligations. With respect to each obliga­tion, if any, hereby guaranteed which is payable in a foreign currency, the following provisions shall apply: The Guarantor shall be obligated to pay to the Bank either the unpaid amount of such guaranteed obligation in the same foreign currency and place in which such guaranteed obligation is payable by its terms, or to pay to the Bank at its Head Office in the City of ___ the equivalent thereof in United States currency computed at the Bank's current selling rate on the date such guaranteed obligation shall become due for cable transfers of such foreign currency to the place where such guaranteed obligation is payable, and to hold the Bank harmless from any loss incurred by it arising from any change in the value in United States currency of such foreign currency between the date such guaranteed obligation shall become due and the date of payment thereof. The term "foreign currency" as used herein shall be deemed to refer to that type of such currency which under applicable laws and regulations may be used to pay and discharge such guaranteed obligation. If on the date such guaranteed obligation shall become due no selling rate is quoted by the Bank for cable transfers of such foreign currency to the place where the guaranteed obligation is payable or if at any time the Bank is unable, due to interruption of communications between the Bank and any Branch at which the records of such guaranteed obligation are main­tained or to acts of war, insurrection or civil uprising at the location of such Branch, to establish the amount of such guaranteed obligation, the Bank may estimate the equivalent in United States currency of the amount of such guaranteed obligation on the basis of the last statement or statements received by the Bank from such Branch and the last

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§ 18.17 GUARANTIES AND SURETIES Ch. 18

quoted selling rate for cable transfers of such foreign currency to the place where the guaranteed obligation is payable, and the Guarantor shall be obligated, on demand, to furnish such further collateral or to make such payments on account of its liabilities under this guaranty as the Bank shall request. The Bank will hold such further collateral as a part of the Security for the obligations of the Guarantor under this guaranty and the Guarantor shall remain liable for the amount of the guaranteed obligations, and the interest thereon and costs and ex­penses.

In Witness Whereof, the Guarantor has caused this instrument to be duly executed by its proper officers this ___ day of __ _, 19 __

[ Co,poration ] By------------[President ]

Attest:

[Secretary]

[Acknowledgment ] I, __ _, as Secretary of __ _, a corporation duly organized

and existing under the laws of the State of Florida, hereby certify that a meeting of the Board of Directors of said Corporation was duly called and held on the ___ day of __ _, 19_, and that at said meeting, at which a quorum was present and voting throughout, the following preambles and resolution, upon motion duly made and seconded, were duly and unanimously adopted:

"Whereas, ___ (hereinafter referred to as the Borrower), a corporation organized and existing under the laws of the State of Florida, desires or may desire at some time and/ or from time to time to obtain loans or other financial accommodation from or conduct transac-tions with ___ Bank (hereinafter referred to as the Bank); and

"Whereas, this Corporation owns a substantial amount of the stock of the Borrower and is financially interested in its affairs and expects to derive advantage from each and every such loan, accommodation and/ or transaction,

"Now, therefore, be it "Resolved, that this Corporation guarantee the liabilities and obli­

gations of the Borrower and of others to the Bank in the manner set forth in the agreement of guaranty presented to this meeting, which said agreement of guaranty and all of the terms and provisions thereof are in all respects approved and adopted, and that any of the officers of this Corporation be and hereby are, and each of them hereby is

252

Ch. 18 GUARANTIES AND SURETIF8 § 18.18 authorimd and directed to execute in the name and on behalf of this Corporation and to deliver to the Bank an agreement of guaranty in said form with such changes, if any, as the officer or officers of this Corporation executing the same may approve, and to do such other acts and things as may be necessary or advisable in order to carry out and perform on the part of this Corporation the covenants, conditions and agreements on its part to be carried out and performed as provided in said agreement of guaranty and in order to carry out and effect the full intent and purposes of this resolution."

As said Secretary, I further certify that the foregoing preambles and resolution have not been repealed, annulled, altered or amended in any respect but remain in full force and effect and that the annexed instrument is the form of the agreement of guaranty presented to said meeting and referred to in and approved by the aforesaid resolution.

In Witness Whereof, I have hereunto set my hand and affixed the seal of the said Corporation this ___ day of ___ 19_,

[Secretary of Corporation ]

§ 18.18 Continuing Guaranty to Bank of Past and Future Indebtedness-Limited as to Amount

To Bank of __ _

[Date]

(1) The undersigned Guarantors jointly and severally uncondition-ally guarantee and promise to pay to the Bank of ___ on demand, any and all indebtedness of __ _, a corporation (hereinafter called Borrowers), to Bank.

(2) The liability of Guarantors shall not exceed at any one time the sum of $___ Notwithstanding the foregoing, Bank may permit the indebtedness of Borrowers to exceed Guarantors' liability. This is a continuing guaranty relating to any indebtedness, including that aris­ing under successive transactions which shall either continue the indebtedness or from time to time renew it after it has been satisfied. Any payment by Guarantors shall not reduce their maximum obliga­tion hereunder, unless written notice to that effect be actually received by Bank at or prior to the time of such payment.

(3) The obligations hereunder are joint and several, and indepen­dent of the obligations of Borrowers.

(4) Guarantors authorize Bank, without notice or demand and without affecting their liability hereunder to take and hold security for the payment of this guaranty or the indebtedness guaranteed, and exchange, enforce, waive and release any such security; and to apply such security and direct the order or manner of sale thereof as Bank in its discretion may determine.

9 Fla.Legal Forma-Spedalized Forma--10 253

§ 18.18 GUARANTIES AND SURETIES Ch. 18

(5) Guarantors waive any right to require Bank to (a) proceed against Borrowers; (b) proceed against or exhaust any security held from Borrowers; or (c) pursue any other remedy in Bank's power whatsoever. Guarantors waive any defense arising by reason of any disability or other defense of Borrowers or by reason of the cessation from any cause whatsoever of Borrowers. Until all indebtedness of Borrowers to Bank shall have been paid in full, Guarantors shall have no right of subrogation, and waive any right to enforce any remedy which Bank now has or may hereafter have against Borrowers, and waive any benefit of, and any right to participate in any security now or hereafter held by Bank.

(6) Guarantors agree to pay a reasonable attorneys' fee and all other costs and expenses which may be incurred by Bank in the enforcement of this Guaranty.

[Signatures]

§ 18.19 Continuing Guaranty to Bank of Past and Future Indebtedness-Limited as to Amount-Another Form

Whereas, __ _, having its principal office at __ _, in the county of __ _, and state of ___ (hereinafter called "Customer") desires to keep an account with the ___ Bank of ___ (hereinaf-ter called "Bank"), and to borrow money from the bank from time to time, and to sell its notes or securities to the Bank, either absolutely or subject to repurchase:

Now, therefore, the undersigned, jointly and severally, agree to indemnify the bank in an amount not exceeding ___ dollars, from any loss, expense or damages by reason of any loans, discounts, credits or other accommodations, already made or granted, or which may be hereafter made or granted, by the Bank to the Customer, and do hereby guarantee the payment by the Customer of all the Customer's indebted­ness and liabilities of every kind to the Bank which now exist or which may be hereafter contracted, not exceeding said sum, hereby waiving notice of acceptance of this guaranty and notice of the making or renewal of notes, or defaults in payment, and waiving presentment, demand, notice and protest.

Each of the undersigned acknowledges that this guaranty is opera­tive and binding without reference to whether it is signed by any other person or persons.

It is further agreed that, in addition to the limited liability above assumed, the undersigned guarantee the payment to the holder of all commercial paper of the Customer sold by the Bank to any individual or to any other bank or trust company; it being understood that the holder of any such paper shall be entitled to the benefit of this guaranty without being named herein. This guaranty, as to both

254

Ch. 18 GU~ AND SURETIES § 18.21 classes of obligations, shall be a continuing one, until revoked by proper notice in writing, served personally on the president or vice president or cashier of the Bank and, notwithstanding the service of any such notice, this guaranty shall continue in force, and shall be binding upon the undersigned until all amounts and all liabilities owing from the Customer to the Bank, of every kind, existing at the time of the service of said notice, and all such commercial paper in the hands of third parties, shall be paid. Notice of cancellation of this contract shall not be effective unless all the signers hereof join therein, and the provisions hereof shall apply to, and bind, the heirs, executors, administrators, personal representatives and assigns of each of the signers hereof.

In Witness Whereof, etc.

§ 18.20 Continuing Guaranty to Bank of Past and Future Indebtedness-Limited as to Amount-Another Form

For value received, we hereby jointly and severally guarantee the payment, when due, of any and all indebtedness or liability now due or owing or incurred, or which may hereafter become due or owing or incurred, from ___ to the ___ Bank of __ _, to the amount of __ _, whether such indebtedness or liability arises upon notes made or indorsed by said __ _, or in any other manner, and hereby waive notice of the acceptance of this guaranty, which shall be a continuing one, and of any and all indebtedness or liability at any time covered by the same, including presentment, demand, protest, and notice of protest, and we hereby consent to the renewal, from time to time, of any paper evidencing any of said indebtedness or liability.

This guaranty shall continue until written notice from us of the discontinuance thereof shall be received by the ___ Bank, and until any and all indebtedness or liability then outstanding from the said ___ to the ___ Bank covered by this guaranty has been fully paid and discharged.

Witness our hands and seals this ___ day of __ _, 19_.

_________ [Seal]

_________ [Seal]

---------[Seal]

§ 18.21 Continuing Guaranty of Past and Future Indebted­ness-Both Unconditional Liability and Conditional Liability Limited as to Amount

In consideration of the sum of one dollar and other good and valuable considerations, in hand paid to the undersigned guarantors by ___ of __ _, hereinafter called creditor, and in consideration of credit already given and to be given to __ _, of __ _, hereinafter

255

§ 18.21 GUARANTIES AND SURETIES Ch. 18

called debt.or, and at the special instance and request of the credit.or, we do hereby jointly and severally guarantee the prompt payment, at maturity, of any and all notes, drafts, checks, and any and all indebted­ness, . direct or indirect, absolute or contingent, which may now be outstanding or owing from, or which may be hereafter executed or incurred by, the debt.or t.o the credit.or, t.o the amount of __ _ dollars.

This guaranty is an absolute and completed one, and shall extend t.o and cover any and all forms of indebtedness and liability on the part of the debt.or t.o the credit.or heret.ofore accrued or hereafter accruing or arising on note, draft, check, or other express obligation, or on open account, or by way of indorsement or guaranty, or any other form of secondary liability, and shall be a continuing one and no notice of any indebtedness already or hereafter contracted or renewed by the debtor need be given to the guarant.ors, or any of them. The guarant.ors hereby expressly waive presentment, demand, protest, and notice of protest on any and all forms of such indebtedness, and also notice of acceptance of this guaranty, acceptance on the part of the credit.or being conclusively presumed by its request for this guaranty and delivery of the same to it.

Each of the undersigned acknowledges that this guaranty is opera­tive and binding without reference to whether it is signed by any other person or persons.

In case the indebtedness or liability, in any form, of the debtor t.o the credit.or shall exceed the sum of ___ dollars, then (if the credit.or shall so elect) the guarant.ors agree to indemnify the credit.or against any and all loss on account of, or by reason of, said indebtedness or liability to the extent or amount of ___ dollars, it being express-ly underst.ood and agreed that the liability of the guarantors hereon is twofold, t.o wit:

First, in the case the indebtedness or liability of the debt.or shall not exceed the sum of ___ dollars, it shall be an absolute guaranty of payment.

Second, in case the indebtedness or liability of the debt.or shall exceed the sum of ___ dollars, at the election of the creditor, it shall be a contract of indemnity against loss thereon, the limit of obligation or liability hereon, in either case, being the sum of __ _ dollars.

Dated this ___ day of __ _, 19_,

256

Ch. 18 GUARANTIES AND SURETIES § 18.22

§ 18.22 Continuing Guaranty by Shareholders of Past and Future Obligations of Corporation

__ _, 19_

To __ _

To induce you to loan money and extend credit to __ _, herein­after called the Borrower, I hereby guarantee, unconditionally, the payment, when due, of each and every obligation, direct or contingent, now existing or hereafter arising, owing to you by the Borrower.

This Guaranty is a continuing guaranty, and shall remain in force until revoked by notice in writing to you, and revocation hereof shall not prejudice your claim hereunder with respect to any obligation arising prior to revocation.

This Guaranty shall extend to and cover every extension or renew­al of, and every obligation accepted in substitution for, any obligation guaranteed hereby, and I shall be bound hereby irrespective of the existence, value or condition of any collateral security you may at any time hold.

I hereby waive notice of acceptance of this Guaranty, and also presentment, demand, protest and notice of dishonor of any note or other obligation hereby guaranteed.

I hereby consent and agree that you may, without prejudice to any claim against me hereunder, at any time, or from time to time, in your discretion, and without notice to me, (1) extend or change the time of payment, and the manner, place or terms of payment of any obligation hereby guaranteed, (2) exchange, release or surrender all or any collat­eral security which you may at any time hold in connection with any obligation hereby guaranteed, (3) sell, and yourself purchase, any such collateral at public or private sale or at any broker's board, crediting net proceeds upon any obligation secured thereby, and (4) settle or compromise with the Borrower, or with any other person primarily or secondarily liable with the Borrower, any obligation hereby guaranteed, or subordinate the payment of any such obligation of the Borrower or other person to the payment of any other debt which may be owing to you.

No delay on your part in exercising any right hereunder, or in taking any action to collect or enforce payment of any obligation hereby guaranteed, either as against the Borrower or any other person prima­rily or secondarily liable with the Borrower, shall operate as a waiver of any such right or in any manner prejudice your rights against me.

I agree that, if the maturity of any obligation hereby guaranteed is accelerated, by bankruptcy or otherwise, as against the Borrower, such maturity shall also be deemed accelerated for the purposes of this Guaranty, and without demand upon or notice to me.

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§ 18.22 GUARANTIES AND SURETIES Ch. 18

As security for the performance of my obligations hereunder, I hereby give you a general lien upon, or right of setoff of, any balance of deposit account at any time to my credit with you, and any other of my funds or assets at any time in your custody or control.

If the obligations of the Borrower are also guaranteed by any other person, by continuing guaranty or by endorsement of any note of the Borrower or otherwise, the obligation of such other person and my obligation hereunder shall be deemed to be several; and the release by you of any such other guarantor, or settlement with him, or the revocation or impairment of his guaranty, shall not operate to prejudice your rights against me hereunder.

In Witness Whereof, etc.

§ 18.23 Continuing Guaranty by Shareholders of Past and Future Obligations of Corporation-Another Form

Whereas, ___ is desirous of discounting with __ _, of __ _, from time to time, certain promissory notes, drafts and securi­ties, and of indorsing said promissory notes, drafts and securities to __ _, of __ _, without recourse, or discounting the same without indorsement:

Now, therefore, we, the undersigned, stockholders of __ _, in consideration of the sale, discount, and indorsement, as aforesaid, by __ _, of---, to __ _, of ___ of such promissory notes, drafts and securities as the former may, from time to time, see fit to sell or discount to the latter, and for value received do hereby jointly and severally guarantee the prompt payment, at maturity, of any and all such promissory notes, drafts and securities which may from time to time be sold, or discounted to ___ of __ _, as aforesaid, up to and including the sum of ___ dollars, outstanding at any one time, it being expressly understood and agreed that this guaranty shall be a continuing one and cover all promissory notes, drafts and securities which may be sold or discounted as aforesaid, and all renewals of the same, or any of the same, and all notes, drafts and securities which may, from time to time, be substituted for the same, or any of the same.

In consideration of the aforesaid, the undersigned hereby expressly waive presentment, demand, protest, and notice of protest on any and all of such promissory notes, drafts and securities which may be sold or discounted; it being, however, expressly understood that the total liability of the undersigned on this guaranty shall at all times be limited to an amount not exceeding ___ dollars outstanding at any one time.

Dated __ _, 19_.

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Ch. 18 GUARANTIES AND SURETIES § 18.52

§§ 18.24-18,49 are reserved for supplementary material.

C. PAYMENT FOR GOODS SOLD ON CREDIT

§ 18.50 Guaranty of Payment for Goods Sold-Limited to One Transaction

To __ _, of __ _

In consideration of your agreeing to supply ___ of __ _ with goods in the way of his trade and business as a ___ up to but not exceeding the sum of $, __ _, I hereby guarantee to you the payment of the said sum.

This guaranty is not a continuing security and shall not extend or apply to any goods that shall be supplied by you, whether at one time or otherwise, to the said ___ in excess of the said sum of$, __ _, and all payments made by the said ___ to you after the date hereof on account of goods supplied to him by you as aforesaid shall be appropriated by you in reduction of my liability under this guaranty until the said sum of$--- shall have been wholly paid or satisfied by the said ___ and my liability hereunder shall have been thereby or in some other way discharged.

Dated __ _, 19_ [Signature]

§ 18.51 Guaranty of Payment for Goods Sold-Short Form To __ _, of __ _

I __ _, of __ _, hereby agree to be answerable to you for the price of __ _, to be delivered to ______ of __ _, payable in one month from the date of delivery.

This guaranty is not a continuing guaranty.

Dated __ _, 19_. [Signature ]

§ 18.52 Guaranty of Payment on Installment Sal~Limited to One Transaction

___ 19_

Seller's Name ___________________ _

Address-----------------------Gentlemen:

In consideration of your selling ___________ _

(description of goods or transaction)

259

§ 18.52 GUARANTIES AND SURETIES Ch. 18

to _______ under _______ dat.ed __ _, on which (name of purchaser) (form of agreement)

there is a balance of $, ___ payable at ____ in installments of (address)

$. ___ each, on the ___ day of each ___ commencing one month from dat.e or on __ _, 19_, I (meaning all guarantors, if more than one, jointly and severally) guarantee to you, your successors and assigns the prompt payment of all sums as and when due thereun­der, without first requiring you to proceed against said purchaser. I waive notice of acceptance hereof and of defaults thereunder and agree that my liability shall not be impaired by any extension of time or other indulgence to any obligor or by any exchange or substitution of goods.

Witness:

THIS IS A GUARANTEE

Guarantors' Signature and Address

I have received a true copy of this guarant.ee.

Guarantors' Signature

{ l r

§ 18.53 Continuing Guaranty of Payment to Merchandise Creditor-Limited as to Amount

City of __ _, Stat.e of __ _

[Date]

[Name and Address ]

Gentlemen:

In consideration of the further ext.ension of credit granted by ___ to __ _, I hereby unconditionally guarantee payment of what.ever amount ___ shall at any time be owing to ___ on account of goods hereafter delivered, whether said indebtedness is in the form of notes, drafts or open account. This shall be an open and continuing guaranty and shall continue in force notwithstanding any change in the form of such indebtedness, or renewals or extensions grant.ed by you, without obtaining any consent thereto, and until expressly revoked by writt.en notice from me to you, and any such revocation shall not in any manner affect my liability as to any indebtedness contracted prior thereto.

260

Ch. 18 GUARANTIES AND SUREl'IES § 18.54 Notice of indebtedness and of default in payment are hereby

waived. Liability under this guaranty shall at no time exceed the sum of ___ Dollars ($, ___ ).

§ 18.54 Continuing Guaranty for Payment of Goods to Be Supplied-Limited as to Amount

This agreement, made this ___ day of __ _, 19_, between __ _, hereinafter called the Guarantor, and hereinafter called the Creditor, witnesseth that:

Whereas, the Creditor has at the request of the Guarantor agreed to supply to __ _, hereinafter called the Debtor, from time to time in the course of his business of a retail grocer with goods on credit.

Now, therefore, it is agreed as follows: 1. Undertaking of Guarantor. The Guarantor will pay to the

Creditor such sum of money as shall from time to time during the continuance of this agreement become due to the Creditor from the Debtor for goods so to be supplied, and not paid for by the Debtor. The liability of the Guarantor hereunder shall not at any time exceed ___ dollars, but subject thereto this guaranty shall be a guaranty of the whole of such sum.

2. Nature and Extent of Guarantor's Liability. The guaranty hereby given shall be a continuing guaranty, but the Guarantor shall not at any time be responsible for or liable to pay to the Creditor more than the balance which may for the time being be due to him from the Debtor, not exceeding in the whole the said sum of ___ dollars, and no proceeding whatever shall be taken against the Guarantor for the recovery of such sum, or any part thereof, until the expiration of ___ days' notice, which shall be given in writing to him, of default having been made by the Debtor in payment thereof, or of some part thereof, and requiring the Guarantor to pay the same.

3. When Creditor May Require Payment. In the event of the Debtor refusing or neglecting to pay any such sum of money as may for the time being be due from him for goods so supplied, or of his becoming bankrupt or filing a petition in bankruptcy, or of his com­pounding or attempting to compromise with his creditors, the Creditor shall resort to and recover from the Debtor, or his estate, or any other securities held by the Creditor, so much of the said sum as can be obtained or recovered, before requiring payment thereof, or of any part thereof, from the Guarantor.

261

§ 18.54 GUARANTIES AND SURETIES Ch. 18

4. Indulgence to Debtor. The liability of the Guarantor shall not be affected by any time or other indulgence given to the Debtor, or by the acceptance by the Creditor of any negotiable or other securities from the Debtor or others in respect of any sum for the time being owing.

5. Creditor to Keep Guarantor Informed. The Creditor will at all times during the continuance of this guaranty give to the Guarantor when by the Guarantor requested in writing so to do full and accurate information as to the amount of the indebtedness of the Debtor to the Creditor.

6. Determination. This guaranty may be determined at any time by the Guarantor by notice in writing given to the Creditor to that effect and payment to the Creditor of the amount, if any, for the time being owing by the Debtor up to the limit specified in paragraph 1 hereof. And this guaranty shall absolutely determine on the death of the Guarantor.

In Witness Whereof, etc.

§ 18.55 Continuing Guaranty for Payment of Goods to Be Supplied-Limited as to Amount-Guarantors Lia­ble in Unequal Sums

In consideration of your having at our request agreed to supply ___ of __ _, hereinafter called the Debtor, with goods in the way of his trade carried on by him at --~

We, the undersigned, agree as follows:

1. Scope of Guaranty. To guarantee to you the payment by the Debtor of all goods so supplied by you, but subject to the limit on our aggregate and individual liability hereinafter expressed.

2. Nature and Extent of Liability. This guaranty shall be a continuing guaranty, but our aggregate liability shall not under any circumstances exceed the sum of $ · and the proportionate share or liability of each of us individually in respect of the said sum shall not (save in the event of any one or more of us becoming bankrupt, insolvent, or otherwise unable to discharge and satisfy his individual liability hereunder, in which case any deficiency thereby caused shall be made good by the remainder of us in proportion to our individual liability hereunder) exceed in amount the sum placed oppo­site our respective signatures at the foot hereof, and should the com­mon liability be less than the said maximum aggregate sum, the share due from each one of us in respect thereof shall be in strict proportion to his individual liability hereunder, and not otherwise.

3. Guaranty to Apply to Whole Debt. Within the aforesaid limits of liability this guaranty shall extend and be applicable to the whole debt that shall ultimately be due to you from the Debtor in respect of goods supplied by you to him as aforesaid, and not merely to

262

Ch. 18 GUARANTIES AND SURETIES § 18.56 so much thereof as shall be co-extensive with our maximum aggregate liability hereunder.

4. Authority to Grant Time to Debtor. You shall be at liberty without discharging us from our liability hereunder to grant time or other indulgence to the Debtor in respect of goods supplied by you to him as aforesaid, and to accept payment from him in cash or by means of negotiable instruments and to treat him in all respects as though we were jointly liable with him as debtors to you instead of being merely sureties for the Debtor.

5. Waiver of Rights of Suretyship. In order to give full effect to the provisions of this guaranty we hereby waive all suretyship and other rights inconsistent with such provisions and which we might otherwise be entitled to claim and enforce.

6. Revocation. This guaranty shall at our option be revocable by ___ days' notice in writing given to you by us.

Dated __ _, 19_.

[Signatures ] [Amount Guaranteed ]

§ 18.56 Continuing Guaranty of Payment on Installment Sale-Limited as to Amount

__ _,, 19_ Seller's Name ___________________ _

Address---------------------Gentlemen:

In consideration of your selling _,..,,--.,......,.--=--......,...----,--,-- to (description of goods or transaction)

--,-----,,--,,..---under.....,.,,---,-----,-- dated __ _,, on which there (name of purchaser) (form of agreement)

is a balance of $,___ payable at ___ in installments of (address)

$ ___ each, on the ___ day of each ___ commencing one month from date or on __ _, 19_, I (meaning all guarantors, if more than one jointly and severally) guarantee to you, your successors and assigns the prompt payment of all sums as and when due thereun­der, without first requiring you to proceed against said purchaser.

I waive notice of acceptance hereof and of defaults thereunder and agree that my liability shall not be impaired by any extension of time or other indulgence to any obligor or by any exchange or substitution of goods.

For like consideration, I similarly guarantee payment for all subse­quent purchases made on or before __ __, 19_, by the buyer from you, but my maximum liability at any one time is limited to $ __ _

263

§ 18.56

Witness:

GUARANTIES AND SURETIES

TIBS IS A CONTINUING GUARANTEE

Guarantors' Signature and Address

i

I

Ch. 18

I have received a true copy of this guarantee.

Guarantors' Signature

§ 18.57 Continuing Guaranty Clause

~ l f

This instrument is a continuing guaranty, and shall apply to and cover all indebtedness and renewals thereof above described. The Guarantors, or one or more of them, may give to the Creditor written notice that the Guarantor or Guarantors giving such notice will not be liable hereunder for any indebtedness created, incurred or arising after the giving of such notice; but the obligation of all Guarantors who shall not have given such notice shall, as to all indebtedness created, in­curred, or arising after the giving of such notice, remain and continue as if such Guarantors had been the only Guarantors signing this instrument. The notice above provided for shall not be considered as given until actually received and acknowledged in writing by an officer of the Creditor. In the event of the death of any Guarantor hereunder, the obligation of the deceased shall continue in full force and effect against his estate as to all indebtedness which shall have been created or incurred by the Debtor prior to the time when the Creditor shall have received notice in writing of such death; and this guaranty shall from the date of such death as to all indebtedness created, incurred or arising after such death remain and continue in full force as a guaranty by the surviving Guarantors.

§ 18.58 Guaranty Agreement Date: __ _, 19_ "Debtor": Debtor's Address: "Guarantors":

Guarantors' Addresses:

Guarantors' Phones: Home: Home:

_____ Work: _____ Work:

264

Ch. 18 GUARANTIE9 AND SURETIES § 18.58 THIS GUARANTY AGREEMENT (the "Agreement") is entered

into by the above-named Guarantors in favor of ___ Inc., a Florida corporation (the "Creditor"), of ______ County, Florida, and is made in reference to the following-recited facts:

(A) Creditor is in the business of selling __ _

(B) Debtor desires to purchase ___ from Creditor and desires for Creditor to extend credit to Debtor for some or all of said purchases;

(C) Creditor is not willing to extend any credit to Debtor unless the Guarantors en.ter into this Guaranty Agreement;

(D) This is not a consumer transaction; all ___ sold by Creditor to Debtor is for business purposes only; Debtor is not a consumer. NOW, THEREFORE, in consideration of the premises and for other

good and valuable considerations, and to induce the Creditor to extend credit to Debtor, the Guarantors, jointly and severally with each other, jointly and severally with Debtor, and jointly and severally with all other guarantors, do hereby covenant and agree as follows:

1. Recitals. The statements contained in the recitals of fact set forth above (the "Recitals") are true and correct and the Recitals by this reference are made a part of this Agreement.

2. Guaranty. Guarantors, jointly and severally, do hereby irrev­ocably and unconditionally personally guarantee to the Creditor the prompt payment of all debts and amounts now or hereafter due from Debtor to Creditor, plus interest on amounts now or hereafter past due, as well · as the performance and observance by Debtor of the terms, conditions, covenants, stipulations and agreements of the Debtor con­tained in any invoice, instrument of security, or other document, including any extensions, modifications, renewals or amendments of any of the foregoing, all of the foregoing being herein called the "Debt".

3. Indemnity. Guarantors agree to indemnify and save harmless the Creditor from and against, and Debtor also agrees to pay, all reasonable costs, expenses and attorneys' fees that may be incurred by the Creditor in connection with the collection or enforcement of the Debt, including but not limited to reasonable attorneys fees and costs, as well as such fees and costs in any pre-trial, trial, post-trial, appeal, and bankruptcy proceedings.

4. Financial and Other Information. Guarantors and Debtor shall deliver to Creditor and its representatives such income and expense statements, balance sheets, financial statements, and other personal and business financial information concerning Guarantors and Debtor, or any of them, as Creditor demands at any time and from time to time. The information shall, if Creditor requests, be prepared by an independent certified public accountant, who shall be paid by Debtor and Guarantors.

265

§ 18.58 GUARANTIES AND SURETIES Ch. 18

5. Default; Acceleration; Liens. A default in payment of any part of the Debt shall be and constitute a default under the entire Debt and Creditor has the option to accelerate the entire Debt so that it is all due and payable in its entirety immediately and at. once without notice or demand. The Creditor is hereby granted a lien upon and a security interest in all property of Guarantors now or at any time hereafter in the possession of the Creditor in any capacity whatsoever as security for the payment of the Debt, and the Creditor is hereby authorized to apply, on or after maturity (whether by acceleration or otherwise) to the payment of this debt any such funds or property in possession of the Creditor belonging to Guarantors, in such order of application as Creditor may from time to time elect, without advance notice.

6. Enforcement. The Creditor may enforce the provisions hereof from time to time as often as occasion therefor may arise. Creditor shall not be required to first exercise any rights against any other person or party primarily or secondarily liable in respect to the Debt or the obligations of Guarantors hereunder and shall not be required first to initiate, pursue or exhaust any remedies available to Creditor against any other person or party or to resort to or enforce any security in its possession or under its control. Guarantors are jointly and severally liable on the Debt along with the Debtor and all other guarantors thereof. Guarantors' spouses (if any) are also guarantors of this loan and are signing this or a Guaranty Agreement identical to this Guaranty Agreement so that this guaranty shall be binding upon them both as individuals and as a married couple.

7. Waiver. No course of dealing, delay or omission on the part of the Creditor in exercising or enforcing any of its rights or remedies regarding the Debt or this Guaranty Agreement shall impair or be prejudicial to the rights and remedies of the Creditor hereunder and the enforcement hereof. The Creditor may extend, modify or postpone the time and manner of payment and performance of the Debt and this Agreement without notice to or consent by the Guarantors and without thereby releasing, discharging or diminishing Creditor's rights and remedies against the Guarantors hereunder. Guarantors waive each of the following: notice of acceptance of this Agreement; notice of the occurrence of any default; presentments; demands; protests; and notices of any and all action at any time taken or omitted by the Creditor in connection with the Debt or this Agreement.

8. No Obligation to Extend Credit. Creditor is not obligated by this Guaranty Agreement to extend credit to Debtor or to Guarantors or to sell seafood to either of them. Creditor has the right to refuse the extension of credit at any time and from time to time. Creditor has the right to refuse the extension of credit as to part or all of any purchase.

9. Florida Law; Miscellaneous. This Guaranty Agreement is delivered in the State of Florida and shall be construed according to the laws of Florida. This Guaranty Agreement shall inure to the benefit of

266

Ch. 18 GUARANTIES AND SURETIES § 18.58 and be enforceable by the Creditor and its successors and assigns and shall be enforceable against and binding upon Guarantors and Guaran­tors' representatives, successors and assigns. Paragraph headings are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of this Guaranty Agreement. Wherever used herein, the singular shall include the plural, the plural shall include the singular, and pronouns shall be read as masculine, feminine or neuter as the context requires. ___ County, Florida, shall be proper venue for any litigation involving the Debt or this Guaranty Agreement.

IN WITNESS WHEREOF, the Guarantors have executed this Guaranty Agreement on the day and year first above written.

GUARANTORS:

(SEAL)

Witnesses

(SEAL)

Witnesses

(SEAL)

Witnesses

(SEAL)

Witnesses

DEBTOR:

By: (SEAL)

Title: Witnesses

STATE OF FLORIDA } COUNTY OF

BEFORE ME personally appeared __ _, to me well known and known to me to be the persons described in and who executed the foregoing instrument, and acknowledged to and before me that they executed said instrument for the purposes therein expressed.

267

§ 18.58 GUARANTIES AND SURETms Ch. 18

WITNESS my hand and official seal this ___ day of __ _, 19_,

_________ (SEAL)

NOTARY PUBLIC My commission expires:

§§ 18.59-18.89 are resened for supplementary material.

D. PERFORMANCE OF CONTRACTS

§ 18.90 Guaranty of Performance and Indemnity In consideration of the execution of the within contract by YZ I

hereby guaranty the due performance by AB of all the covenants and agreements on his part therein contained, and the payment of all damages, costs, and expenses which by virtue of the said contract may become recoverable from him by YZ.

Dated __ _, 19_ [Signature]

§ 18.91 Guaranty of Performance of Agent's Agreement AB an inducement to ___ (hereinafter designated as Principal)

to execute the contract appearing on the reverse side of this sheet, without which it is understood the Principal would not have signed the same, the undersigned, jointly and severally, hereby guarantee the full, prompt and complete performance by ___ (hereinafter designated as Agent) of all the terms and conditions contained in contract appear­ing on the reverse side of this sheet, to be by the Agent kept and performed, and the undersigned hereby jointly and severally further promise and guarantee the unconditional payment at maturity of all accounts receivable, acceptances, notes, and other obligations of every nature and kind arising out of or in connection with the said contract, whether now owing or due by whomsoever or howsoever, heretofore or hereafter, created, or arising, or evidenced, and hereby waive demand, protest, and notice of nonpayment of any and all said indebtedness, liabilities, and obligations.

Authority and consent are hereby expressly given the Principal from time to time, and without any notice to the undersigned, to give and make such extensions, renewals, settlements, and compromises as it may deem proper with respect to any of the indebtedness, liabilities, and obligations covered by this guaranty. This guaranty shall bind the parties by whom it is signed, whether the same be signed by one or more guarantors.

It is understood that this is a continuing, absolute and uncondition­al guaranty, co-extensive with said contract between the Principal and the Agent, and the undersigned and each of them hereby expressly

268

Ch. 18 GUARANTIES AND SURETIFB § 18.102 waives notice of acceptance of this guaranty and of all defaults by the Agent and of nonpayment and nonfulfillment of any and all of said indebtedness, liabilities, and obligations.

Signed and sealed by the undersigned this ___ day of __ _, 19_.

[Signatures ]

§§ 18.92-18.99 are rese"ed for supplementary material.

E. NOTICES

§ 18.100 Notice of Acceptance of Guaranty To __ _

Take notice that, relying on your written guaranty [or, letter of credit], dated the ___ day of __ _, 19_, for the benefit of __ _, which you heretofore delivered to us, we have this day sold and delivered to ___ merchandise of the value of$, ___ [or, loaned to ___ the sum of $, ___ ].

[Date ] [Signature ]

§ 18.101 Notice to Guarantor That Principal Has Made De­fault

To __ _

Take notice that ___ of __ __, for whom you became guar-antor [or, surety] under an agreement in writing dated __ _, 19_, has made default in the payment of the sum of $, ___ due to me in respect of goods supplied [or, advances made] to him, and secured by said agreement of guaranty, and that said sum·is still unpaid and due and owing to me, and I hereby call upon you to pay or cause to be paid said sum before __ _, 19_, otherwise legal proceedings to enforce and recover payment thereof will at the expiration of ___ days from the date hereof be taken against you.

[Date ] [Signature of Creditor]

§ 18.102 Notice of Revocation of Guaranty To __ _

This is to notify you that I hereby revoke that certain agreement of guaranty signed by me, dated ___ day of __ __, 19_, and covering the indebtedness of ___ to you, and that my liability thereunder shall from the ___ day of __ _, 19_ wholly cease.

[Date] [Signature]

269

GUARANTIES AND SURETIES Ch. 18 § 18.103

§ 18.103 Notice of Revocation of Guaranty-Where a Power of Revocation Is Reserved

To __ _

Whereas, by a written agreement of guaranty, dated the __ _ day of __ _, 19_, I became guarantor [or, surety] to you for __ _, of __ _, I, the undersigned, in pursuance of a power for that purpose reserved in the said agreement, now give you notice that I hereby revoke the said agreement from the ___ day of __ _ 19-, and that my liability thereunder shall from and after the said last-mentioned date wholly cease.

Dated __ _, 19_. [Signature]

§ 18.104 Notice of Revocation of Guaranty-By Legal Repre­sentative

To __ _

Take notice that I, __ _, hereby notify you that ___ died on ___ day of __ _, 19_ and that I have been appointed his executor [or, administrator], [or, personal representative], [or, am one of his heirs], and that this notice is given you for the purpose of terminat­ing all further liability on my part or that of the estate of said deceased on account of that certain agreement signed by said deceased, dated __ _, 19_, and guaranteeing the indebtedness of ___ to you.

[Date] [Signature]

§ 18.105 Consumer Credit Transaction-Notice to Sureties­Federal Trade Commission Rule

NOTICE TO CO-SIGNER

You are being asked to guarantee this debt. Think carefully before you do. If the borrower doesn't pay the debt, you will have to. Be sure you can afford to pay it if you have to, and that you want to accept this responsibility.

You may have to pay the full amount of the debt if the borrower does not pay. You may also have to pay late fees or collection costs, which increase this amount.

The creditor can collect this debt from you without first trying to collect from the borrower. The creditor can use the same collection methods against you that can be used against the borrower, such as suing you, garnishing your wages, etc. If this debt is ever in default, that fact may become part of your credit record.

This notice is not the contract that makes you liable for the debt.

§§ 18.106-18.119 are reserved for supplementary material.

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Ch. 18 GUARANTIES AND SURETIES § 18.121

F. MISCELLANEOUS

§ 18.120 Guaranty by a Vendor That Earnings From Proper­ty Sold Shall Reach a Minimum Amount

To __ _

I, the undersigned, of __ _, being the vendor of a [business of ___ carried on by me at __ _, under the name of __ _, or, of an estate called __ _, situate at __ _, or, of letters patent No. __ _, etc. ] to the [purchasing company], in consideration of the sum of ___ dollars, being the agreed purchase money received by me this day from [purchasing company] for the [good will, etc., of the said business, or, for the said estate, or, for the said patented invention ], hereby guarantee and warrant that a dividend (duly earned during the year) of not less than ___ per cent per year shall be paid to the stockholders of the said company for the year ending the ___ day of __ _, 19_ and afterwards that there shall be paid to them a yearly dividend of not less than ___ per cent per year (duly earned during the year) for a period of ___ years, and I undertake and agree within ___ calendar months after the end of any and every year to pay to you any sum or additional sum required to pay the agreed minimum dividends, if the company has not fully earned it.

Dated __ _, 19_. [Signature]

COMMENT

The federal and state securities laws should be considered before using this form.

§ 18.121 Guaranty Against Loss Attributable to Misconduct of a Salesman

To __ _

In consideration of your having at my request agreed to engage [principal], of __ _, as a salesman for the business of ___ now carried on by you at __ _, I hereby agree to guarantee and indemni­fy you to the extent of $ __ _, but no further, against all loss or damage you may directly or indirectly sustain or incur through the misconduct, negligence, or disobedience of [principal ] while acting and continuing to be employed by you. This guaranty is to be a continuing guaranty and to remain in force for a period of ___ years, should [principal ] continue without intermission so long in your service and employment, but not otherwise, notwithstanding any change that may from time to time take place in the membership of your firm.

Dated __ _, 19_. [Signature]

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GUARANTIES AND SURETIES Ch. 18 § 18.122

§ 18.122 Guaranty of the Fidelity of a Chief Assistant in a Business

To __ _

In consideration of your employing [principal], of __ _, as chief assistant in your business of ___ for such term, at such salary, and subject to such stipulations, provisions, and conditions as are contained in an agreement dated the ___ day of __ _, 19-, between you and him,

I hereby agree: 1. To indemnify you within the limits hereinafter mentioned

against all losses, costs, charges, damages, and expenses which you may sustain or incur by reason of any dishonesty or want of diligence on the part of [principal ] towards you while he shall continue to be in your employment.

2. This guarantee shall be a continuing guarantee up to, but not exceeding, the sum of ___ dollars for the whole balance that shall be due to you from [principal] in respect of any of the losses, costs, charges, damages, and expenses referred to in the preceding paragraph.

3. No changes in the membership of your firm shall affect my liability hereunder, and this guaranty shall be revocable by calendar months' notice in writing given to you by myself, or after my death by my personal representatives.

Dated __ _, 19_. [Signature]

§ 18.123 Guaranty of the Fidelity of a Clerk To __ _

In consideration of your having at my request agreed to take into your employment [clerk ], of __ _, as your clerk upon certain terms and conditions contained in an agreement in writing dated the __ _ day of __ _, 19_, between you and [clerk ],

I hereby agree: 1. To be answerable and responsible to you for the fidelity of

[clerk] so long as he shall remain in your employment as such clerk, and for the true, faithful, honest, and diligent discharge by him of all the duties properly devolving upon him, and for his performance of all the terms of the said agreement which are on his part to be performed.

2. To indemnify you to the extent of ___ dollars, but no further, against all losses, costs, damages, and expenses that you may sustain or incur by reason of any misconduct, neglect, or default of which [clerk ] may be guilty while in your employment.

3. This guaranty shall be a continuing guaranty to you (determi­nable as hereinafter mentioned), but my liability hereunder shall not exceed in the aggregate the said sum of ___ dollars.

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Ch. 18 GUARANTIES AND SURETIES § 18.125 4. Within the limit aforesaid this guaranty shall apply to the

whole indebtedness to you of [clerk ], and not merely to so much thereof as shall equal the said sum of ___ dollars.

5. No subsequent changes that may occur in the membership of your firm shall impair or discharge my liability hereunder.

6. Notice in writing of any act, neglect, default or misconduct on the part of [ clerk ] causing loss to you, or legally justifying his dismissal from your employment, and constituting a breach on his part of the said agreement, shall be given by you to me within one month after you shall have first discovered or become aware of the same, and thereupon I shall be at liberty to revoke this guaranty as to any subsequent transactions by notice to you in writing.

7. Before any payment shall be made under this guaranty, full particulars in writing of your claim shall be delivered by you to me, and thereupon I shall be entitled to call for and obtain at your expense such information and proofs of its correctness, origin, nature, and extent as I may reasonably require.

Dated ___ 19_. [Signature]

§ 18.124 Guaranty of Number of Subscribers to Publication

The Guarantor does hereby guarantee that the average circulation of the above mentioned publication shall not be less than __ _ copies per issue for the time during which the above advertisement shall run, and it is understood and agreed that the term "circulation," for the purposes above mentioned, shall be construed as follows: The total number of copies of each issue of the publication above mentioned, which shall be published and sold and delivered by the publishers thereof both to paid subscribers and to news agencies exclusive of all returns from news agencies and copies given away in any manner whatsoever.

§ 18.125 Guaranty of Payment for Newspaper Advertising

--- 19_.

Mr./Mrs. ________ _

Credit Manager

Dear Mr./Mrs. __ _

___ Company of ___ hereby guarantees payment at full national rates of any advertising placed with the __ _

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§ 18.125 GUARANTIES AND SURETIES Ch. 18

Times. This guarantee remains in full force and effect until you are notified in writing to the contrary. Any such revocation of this guarantee will affect only such advertising as runs on dates subsequent to the receipt of the revocation by the ___ Times.

_________ Company

By------------Co-partner

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