14-DRAFT NURFC Guaranty Agreement - DO NOT USE THIS ONE

Deleted: DRAFT – FOR REVIEW PURPOSES
ONLY
GUARANTY
Formatted: Font: Not Bold
THIS GUARANTY entered into effective this ___ day of ____________, 201_, is made and
delivered by The National Underground Railroad Freedom Center, an Ohio non-profit Deleted: [INSERT YEAR]
corporation, with an address at 50 East Freedom Way, Cincinnati, OH 45202 (“NURFC”) and Formatted: Font: Not Bold
the STATE OF OHIO (the "State"), acting by and through the Ohio Cultural Facilities Deleted: [INSERT LEGAL NAME OF
Commission (the "Commission"), all being duly authorized to execute and deliver this GUARANTOR],
Agreement. Deleted: [insert address]
Deleted: _____
WlTNESSETH:
th
WHEREAS, the 127 Ohio General Assembly appropriated bond funds in the amount of Formatted: Font: Not Bold
$850,000 in Appropriation Line Item C371H2 of House Bill 562 to NURFC for reimbursement of Deleted: [GA#]
construction expenses previously incurred (the "Project"); and Formatted: Font: Not Bold, Superscript
WHEREAS, pursuant to the Ohio Revised Code (the “O.R.C.”) Chapter 154, Article VIII Section
2i of the Ohio Constitution, and pursuant to a General Bond Order issued by the Treasurer of
State of the State of Ohio (the "Treasurer") on August 31, 2005, as thereafter amended and Deleted: [INSERT APPROPRIATION
AMOUNT]
supplemented, there has been issued State of Ohio Cultural and Sports Capital Facilities Bonds
(collectively the "Bonds") for the purpose of providing moneys to pay the costs of acquiring, Deleted: CAP
constructing, reconstructing, rehabilitating, renovating, enlarging and otherwise improving, Deleted: [CAP#]
equipping and furnishing capital facilities; and Formatted: Font: Not Bold
Deleted: [#]
WHEREAS, pursuant to Resolution No. R-11-06 adopted by the Commission on February 8,
Deleted: the [INSERT NAME OF LPS] (the
2011, the Commission entered into an Addendum to Cooperative Use Agreement (“CUA”) with “Project Sponsor”)
NURFC for construction of the Project using a portion of the proceeds of the Bonds (“Project
Bond Funds”); and
Deleted: [SHORT DESCRIPTION OF ... [1]
WHEREAS, John E. Pepper, Jr. and Frances G. Pepper ( “John E. Pepper Jr. and Frances G. Deleted: [R-XX-XX]
Pepper Funds”), supporters of and donors to NURFC. Formatted: Font: Not Bold
Deleted: __________, 2011[INSERT YEAR]
WHEREAS, the Commission, in order to secure repayment of the Bonds if there is a default
under the CUA with NURFC, has requested that John E. Pepper Jr., and Frances G. Pepper
guaranty repayment of the Project Bond Funds with John E. Pepper Jr., and Frances G. Pepper Deleted: the [INSERT NAME OF LPS]
Funds; and Deleted: the [INSERT NAME OR DEFINED
... [2]
Deleted: ,
WHEREAS, John E. Pepper Jr., and Frances G. Pepper desires to so guaranty repayment of
Comment [A1]: Project Specific recital can ...
be [5]
the Project Bond Funds.
Deleted: through funds raised by John E.... [3]
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which Formatted: Font: Not Bold
is hereby acknowledged, stipulating to the veracity of the recitals above and for the purpose of Deleted: the [INSERT NAME OR DEFINED
... [4]
inducing the Commission to enter into the CUA Addendum with NURFC, John E. Pepper Jr., Deleted: and
and Frances G. Pepper as Guarantor and the Commission hereby agree as follows:
Deleted: the [INSERT NAME OF LPS],
Section 1. Defined Terms. Deleted: the [INSERT NAME OR DEFINED

... [6]
Deleted: [INSERT NAME OR DEFINED TERM
... [7]
In addition to the terms defined elsewhere in this Guaranty, the following terms shall have the Deleted: [INSERT NAME OR DEFINED TERM
... [8]
respective meanings set forth below:
Deleted: the [INSERT NAME OF LPS]
Deleted: [INSERT NAME OR DEFINED TERM
... [9]
(a) “Business Day” means any day other than a Saturday, Sunday, public holiday or other day
on which banking institutions in Columbus, Ohio, are generally closed and do not conduct
banking business.
(b) “Event of Default” means the occurrence of any breach or default under the CUA, any other
document executed in relation thereto, or this Guaranty which remains uncured following
the expiration of any period of notice or grace applicable thereto under the pertinent
agreement.
(c) “Guaranteed Obligation” means the payment when due, by acceleration or otherwise, of all
of the indebtedness of NURFC under the CUA for the Project Bond Funds or in any other Deleted: the [INSERT NAME OF LPS]
documents executed in relation thereto, which may be or become payable in accordance
with the CUA or in any other documents executed in relation thereto.
(d) “Guarantor” means John E. Pepper Jr., and Frances G. Pepper. Deleted: the [LEGAL NAME OF THE
GUARANTOR]
(e) “Project Bond Funds” means the portion of the State of Ohio Cultural and Sports Capital
Facilities Bonds funds expended by the Commission on NURFC project as set forth in the Deleted: the [INSERT NAME OF LPS]
CUA.
(f) “Net Proceeds of Collateral” means an amount realized from the liquidation sale or other
transfer of collateral purchased by NURFC using Project Bond Funds after payment of all Deleted: the [INSERT NAME OF LPS]
expenses of recovery.
Deleted: _____________,
(g) “CUA” means the Cooperative Use Agreement dated July 1, 2008 entered into by and
Deleted: [INSERT YEAR]
between NURFC and the Commission.
(h) “CUA Addendum” means the 1st addendum to the CUA. Deleted: the [INSERT NAME OF LPS]
Formatted: Superscript
Section 2. Guaranty Unconditional.
Guarantor, absolutely and unconditionally, guarantees the prompt payment and performance Deleted: the [INSERT NAME OF LPS]
when due of the Guaranteed Obligation. Guarantor undertakes this continuing, absolute, and Deleted: the [INSERT NAME OF LPS]
unconditional guaranty of the aforementioned payment and performance by NURFC Deleted: the [INSERT NAME OF LPS]
notwithstanding that any portion of the Guaranteed Obligation may be void, voidable or Deleted: thereunder
unenforceable as between NURFC and the Commission.
Deleted: the [INSERT NAME OF LPS],
Section 3. Guaranty of Payment. Deleted: indorser

Deleted: [INSERT APPROPRIATION
This instrument is a guaranty of payment and performance, and not a guaranty of collection. AMOUNT].
Upon NURFC’s failure to pay or perform any of its obligations under the CUA Addendum or in Formatted: Font: Not Bold
any other documents executed in relation thereto to which it is a party promptly as and when Formatted: Font: Not Bold
due and prior to the expiration of any applicable period of notice or grace there under, the
Deleted: C:\Documents and
Commission may proceed against the undersigned Guarantor to collect the Guaranteed Settings\jessicad\Desktop\NURFC Guaranty
Obligation, with or without proceeding against NURFC any co-maker or co-surety or co- Agreement.dotx
guarantor, any endorser or any other collateral which may then be held as security for the Deleted: C:\Documents and
Guaranteed Obligation. Notwithstanding the foregoing, the Commission acknowledges and Settings\jessicad\Desktop\NURFC Guaranty
Agreement.dotxhttp://ocfcsp/legal/Shared
agrees that in proceeding against the Guarantor hereunder for payment of Guaranteed Documents/Guaranty Agreement.dotx
Obligation, the Guarantor shall not be required to pay more than $850,000.
Deleted: 12/8/2010
Deleted: 12/8/201012/8/201012/8/201012/8/20
10
I:\nurfc request pdfs\files from PS NURFC Doc Library\DRAFT NURFC Guaranty Agreement - DO NOT USE THIS ONE.dotx
3/14/2011
-2-
Section 4. Obligations Unaffected.
The obligations of the undersigned Guarantor under this Guaranty extends to all amendments,
supplements, modifications, renewals, replacements or extensions of the CUA. The liability of
Guarantor and the rights of the Commission under this Guaranty shall not be impaired or
affected in any manner by, and Guarantor hereby consents in advance to, and waives any
requirement of notice for, any (1) disposition, impairment, release, surrender, substitution, or
modification of any collateral securing the Guaranteed Obligation or the obligations created by
this Guaranty or failure to perfect a security interest in any collateral; (2) release (including
adjudication or discharge in bankruptcy) or settlement with NURFC or any other party which Deleted: the [INSERT NAME OF LPS]
may be or become liable for the Guaranteed Obligation (including, without limitation, any maker,
indorser, guarantor or surety); (3) delay in enforcement of payment of the Guaranteed
Obligation or delay in enforcement of this Guaranty; (4) delay, omission, waiver, or forbearance
in exercising any right or power with respect to the Guaranteed Obligation or this Guaranty; (5)
defense arising from the enforceability, validity or genuineness of the CUA or the Bonds; (6)
defenses or counterclaims that NURFC may assert under or in respect of the CUA or in any Deleted: the [INSERT NAME OF LPS]
other documents executed in relation thereto, including, but not limited to, failure of
consideration, breach of warranty, fraud, payment, statute of frauds, bankruptcy, infancy, statute
of limitations, lender liability, accord and satisfaction and usury; (7) extensions or modifications
of the Guaranteed Obligation; or (8) other act or omission which might otherwise constitute a
legal or equitable discharge of the undersigned. Guarantor waives all defenses based on
suretyship or impairment of collateral, presentment, protest, demand for payment, any right of
set-off, notice of dishonor or default, notice of acceptance of this Guaranty, notice of the
incurring of any of the Guaranteed Obligation and notice of any other kind in connection with the
Guaranteed Obligation or this Guaranty. In the event the Commission shall realize upon any
collateral given to secure the CUA or the Project Bond Funds or other obligations of NURFC, Deleted: the [INSERT NAME OF LPS
the Net Proceeds of Collateral will be applied first to such portion and percentage of the Deleted: ]
Guaranteed Obligation, not guaranteed by the undersigned Guarantor. The Commission has Formatted: Font: Not Bold
sole authority to determine whether to proceed against the Collateral or to seek payment of the
Guaranteed Obligation by Guarantor.
Section 5. Certain Waivers.
Until such time as the Guaranteed Obligation shall have been satisfied or discharged in full,
regardless of the amount of Guarantor’s obligation to the Commission hereunder, Guarantor
hereby waives, releases and discharges any claim, right or remedy which the undersigned may
now have or may hereafter acquire against NURFC that arises hereunder or from the Deleted: the [INSERT NAME OF LPS]
performance by Guarantor hereunder including, without limitation, any claim, remedy or right of
subrogation, reimbursement, exoneration, contribution, indemnification, or participation in any Deleted: the [INSERT NAME OF LPS]
claim, right or remedy of the Commission against NURFC or any security which the Commission Deleted: the [INSERT NAME OF LPS]
may have or acquire, without regard to whether or not such claim, right or remedy arises in Deleted: C:\Documents and
equity, under contract, by statute, under common law or otherwise. Additionally, Guarantor Settings\jessicad\Desktop\NURFC Guaranty
Agreement.dotx
waives any requirement that the Commission exhaust any right or remedy, or proceed first
against NURFC or any security for the Guaranteed Obligation before calling upon Guarantor for Deleted: C:\Documents and
Settings\jessicad\Desktop\NURFC Guaranty
payment of the Guaranteed Obligation. Agreement.dotxhttp://ocfcsp/legal/Shared
Documents/Guaranty Agreement.dotx
Deleted: 12/8/2010
Deleted: 12/8/201012/8/201012/8/201012/8/20
10
3/14/2011
-3-
Section 6. Subrogation and Subordination.
UNTIL SUCH TIME AS ONE HUNDRED PERCENT (100%) OF THE GUARANTEED

OBLIGATION SHALL HAVE BEEN SATISFIED OR DISCHARGED, REGARDLESS OF THE
AMOUNT OF GUARANTOR’S OBLIGATION TO THE COMMISSION HEREUNDER,
GUARANTOR IRREVOCABLY WAIVES ANY AND ALL RIGHTS GUARANTOR MAY HAVE AT
ANY TIME (WHETHER ARISING DIRECTLY OR INDIRECTLY, BY OPERATION OF LAW OR
CONTRACT) TO ASSERT ANY CLAIM AGAINST NURFC ON ACCOUNT OF PAYMENTS Deleted: THE [INSERT NAME OF LPS]
MADE BY GUARANTOR UNDER THIS GUARANTY, INCLUDING, WITHOUT LIMITATION,
ANY AND ALL RIGHTS OF SUBROGATION, REIMBURSEMENT, EXONERATION,
CONTRIBUTION OR INDEMNITY. UNTIL SUCH TIME AS ONE HUNDRED PERCENT (100%)
OF THE GUARANTEED OBLIGATION SHALL HAVE BEEN SATISFIED OR DISCHARGED,
REGARDLESS OF THE AMOUNT OF GUARANTOR’S OBLIGATION TO THE COMMISSION
HEREUNDER, GUARANTOR IRREVOCABLY SUBORDINATES ANY AND ALL
INDEBTEDNESS OF NURFC TO THE GUARANTOR, PRESENT AND FUTURE, HOWEVER Deleted: THE [INSERT NAME OF LPS]
EVIDENCED, TO THE PRIOR PAYMENT OF THE GUARANTEED OBLIGATION TO THE
COMMISSION.
Section 7. Effect of Bankruptcy Proceeding, Etc.
If at any time any whole or partial payment of the Guaranteed Obligation is rescinded or must
otherwise be restored or returned by the Commission upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of NURFC or upon or as a result of the appointment of Deleted: the [INSERT NAME OF LPS]
a receiver, intervener or conservator of, or trustee or similar officer for, NURFC, this Guaranty Deleted: intervenor
will continue to be effective, or be reinstated, as the case may be, all as though such payment Formatted: Font: Not Bold
had not been made.
Deleted: the [INSERT NAME OF LPS]
Section 8. Miscellaneous Provisions.
(a) From time to time at the Commission’s request, the undersigned Guarantor will execute and
deliver to or as directed by the Commission any and all documents, instruments or
agreements of further assurance that the Commission may reasonably require to confirm
this Guaranty or to carry out the purpose and intent hereof.
(b) This Guaranty may not be modified, amended, discharged or terminated except by a written
Deleted: , [INSERT NAME OR DEFINED
instrument executed by each party against whom such modification, amendment, discharge TERM FOR GUARANTOR]
or termination is sought.
Deleted: is
(c) No course of dealing and no delay by the Commission in exercising any right or remedy Deleted: [INSERT NAME OR DEFINED
TERM FOR GUARANTOR]
hereunder will affect or impair any other or future exercise of any such right or remedy. The
rights and remedies of the Commission under this Guaranty are cumulative and not Deleted: [INSERT NAME OF LPS]
exclusive of any rights or remedies which may be available to the Commission under the Formatted: Font: Not Bold
CUA or in any other documents executed in relation thereto, at law or in equity; any or all Deleted: C:\Documents and
such remedies may be exercised concurrently or successively. Settings\jessicad\Desktop\NURFC Guaranty
Agreement.dotx
(d) If, after payment of the Guaranteed Obligation is sought by the Commission, John E. Deleted: C:\Documents and
Pepper Jr., and Frances G. Pepper are unable to pay the outstanding Project Bond Funds Agreement.dotxhttp://ocfcsp/legal/Shared
in a single payment, John E. Pepper Jr., and Frances G. Pepper, if it is in control of the Documents/Guaranty Agreement.dotx
NURFC facility, shall ensure that the improvements paid for with the Project Bond Funds Deleted: 12/8/2010
are not in any manner which would adversely affect (i) the validity of the Bonds, or (ii) the
Deleted: 12/8/201012/8/201012/8/201012/8/20
10
3/14/2011
-4-
exclusion of the interest on the Bonds from the gross income of the holders of the Bonds for
federal income tax purposes.
(e) Guarantor agrees to pay, or to reimburse the Commission for, any and all out-of-pocket
expenses reasonably incurred by the Commission (including, without limitation, reasonable
attorneys’ fees and costs) in connection with the enforcement of the Commission’s rights
under this Guaranty.
(f) If any provision of this Guaranty, or the application of any such provision to any person or
circumstance, is held invalid or unenforceable, the remainder of this Guaranty or the
application of any such provision to other persons or circumstances will not be affected
thereby, and will remain valid and enforceable to the fullest extent permitted by law.
(g) This Guaranty will continue to be binding upon and constitute an obligation of Guarantor, an
obligation of such Guarantor’s successors and assigns, and will inure to the benefit of the
Commission and its successors and assigns.
(h) This Guaranty shall be governed by the laws of the State of Ohio.
(i) All notices or other written communications hereunder will be deemed to have been
properly given (1) one Business Day after having been deposited for overnight delivery with
any reputable overnight courier service or (2) three Business Days after having been
deposited in any post office or mail depository regularly maintained by the U.S. Postal
Service and sent by registered or certified mail, postage prepaid, return receipt requested,
addressed to Guarantor or the Commission, as the case may be, at the addresses set forth
on the first page of this Guaranty or addressed as such party may from time to time
designate by written notice to the other parties. Either party by notice to the other may
designate additional or different addresses for subsequent notices or communications.
(j) To the greatest extent permitted by law, Guarantor hereby waives any and all rights to
require marshalling of (1) NURFC’s assets or (2) any other collateral for the CUA by the Deleted: the [INSERT NAME OF LPS]
Commission. With respect to any suit, action or proceedings relating to this Guaranty (each,
a “proceeding”), the Commission and Guarantor irrevocably (a) submits to the non-
exclusive jurisdiction of the state and federal courts having jurisdiction in the city of
Columbus and the State of Ohio, and (b) waives any objection which it may have at any
time to the laying of venue of any proceeding brought in any such court, waives any claim
that any proceeding has been brought in an inconvenient forum and further waives the right
to object, with respect to such proceeding, that such court does not have jurisdiction over
such party. Nothing in this Guaranty shall preclude the Commission from bringing a
proceeding in any other jurisdiction nor will the bringing of a proceeding in any one or more
jurisdictions preclude the bringing of a proceeding in any other jurisdiction.
(k) This Guaranty may be executed in multiple counterparts, and the signature of any party on Deleted: C:\Documents and
any counterpart may be attached to any other counterpart; all such signed counterparts Settings\jessicad\Desktop\NURFC Guaranty
shall together comprise a single unified instrument. Agreement.dotx
(l) Guarantor hereby authorizes any attorney at law (which attorney may be an attorney Settings\jessicad\Desktop\NURFC Guaranty
associated with the Commission’s counsel and the Guarantor hereby waiving any conflict of Documents/Guaranty Agreement.dotx
interest) at any time or times to appear in any state or federal court of record in the United Deleted: 12/8/2010
States of America after all or any part of the Guaranteed Obligation shall have become due,
Deleted: 12/8/201012/8/201012/8/201012/8/20
whether by lapse of time, acceleration, or otherwise, and in each case to waive the 10
3/14/2011
-5-
issuance and service of process, to present to the court this Guaranty and any note or other
writing (if any) evidencing the obligation or obligations in question, to admit the due date
thereof and the nonpayment thereof when due, to confess judgment against the
undersigned Guarantor in favor of the Commission for the full amount then appearing due,
together with interest and costs of suit, and thereupon to release all errors and waive all
rights of appeal and any stay of execution. Such attorney confessing judgment on behalf of
and against the undersigned Guarantor shall be entitled to a fee which may be paid by the
Commission and for which Guarantor shall indemnify the Commission. The foregoing
warrant of attorney shall survive any judgment, it being understood that should any
judgment against Guarantor be vacated for any reason, the Commission may nevertheless
utilize the foregoing warrant of attorney in thereafter obtaining one or more additional
judgments against the undersigned Guarantor. The Guarantor waives any conflict of
interest in an attorney retained by the Commission to confess judgment against it upon this
Guaranty.
This Guaranty is executed as of the date and date set forth above.
“WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND
COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN
AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT
CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY
HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS,
FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.”
Signed in the presence of: GUARANTOR:
_______________________________
Signature
_______________________________ By: __________________________________

Printed Name
_____________________________________
_______________________________ Printed Name
Signature
Title: ________________________________
_______________________________
Printed Name By: __________________________________
_____________________________________
Printed Name Deleted: ¶
Title: _________________________________ Settings\jessicad\Desktop\NURFC Guaranty
Agreement.dotx
Deleted: 12/8/2010
Deleted: 12/8/201012/8/201012/8/201012/8/20
10
3/14/2011
-6-
Signed in the presence of: STATE OF OHIO, by and through the
OHIO CULTURAL FACILITIES COMMISSION
_______________________________
Signature
_______________________________ By: __________________________________

Printed Name Kathleen M. Fox, Executive Director
_______________________________
Signature
_______________________________
Printed Name
Approved as to form:
Richard Cordray, Ohio Attorney General

on attached approval form dated: ___________

Agreement.dotx
Deleted: 12/8/2010
Deleted: 12/8/201012/8/201012/8/201012/8/20
10
3/14/2011
-7-
Page 1: [1] Deleted Author
[SHORT DESCRIPTION OF PROJECT]

the [INSERT NAME OR DEFINED TERM FOR GUARANTOR],

through funds raised by John E. Pepper Jr., and Frances G. Pepper

the [INSERT NAME OR DEFINED TERM FOR GUARANTOR] through a bed tax and other
sources (“John E. Pepper Jr., and Frances G. Pepper [INSERT NAME OR DEFINED TERM
FOR GUARANTOR] Funds”), supports the [INSERT NAME OF LPS]NURFC with payments
totaling approximately $XX00 annually;
Page 1: [5] Comment [A1] Author
Project Specific recital can be used here to describe the relationship between the Guarantor and
the LPS

the [INSERT NAME OR DEFINED TERM FOR GUARANTOR]

[INSERT NAME OR DEFINED TERM FOR GUARANTOR]



14-DRAFT NURFC Guaranty Agreement - DO NOT USE THIS ONE

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

14-DRAFT NURFC Guaranty Agreement - DO NOT USE THIS ONE

Uploaded by

Copyright:

Available Formats

Deleted: DRAFT – FOR REVIEW PURPOSES

Section 1. Defined Terms. Deleted: the [INSERT NAME OR DEFINED

Section 3. Guaranty of Payment. Deleted: indorser

Section 5. Certain Waivers.

UNTIL SUCH TIME AS ONE HUNDRED PERCENT (100%) OF THE GUARANTEED

Section 7. Effect of Bankruptcy Proceeding, Etc.

Section 8. Miscellaneous Provisions.

Signed in the presence of: GUARANTOR:

_ By: ____

_ By: ____

Richard Cordray, Ohio Attorney General

Deleted: C:\Documents and

Page 1: [2] Deleted Author

Page 1: [3] Deleted Author

Page 1: [4] Deleted Author

Page 1: [5] Comment [A1] Author

Page 1: [6] Deleted Author

Page 1: [7] Deleted Author

Page 1: [8] Deleted Author

Page 1: [9] Deleted Author

You might also like