11-DRAFT NURFC Guaranty Agreement _4_

8/7/2019 11-DRAFT NURFC Guaranty Agreement _4_

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GUARANTY

THIS GUARANTY entered into effective this ___ day of ____________, 201_[INSERT YEAR],is made and delivered by The National Underground Railroad Freedom Center, [INSERTLEGAL NAME OF GUARANTOR], an Ohio non-profit corporation, with an address at 50 EastFreedom Way, Cincinnati, OH 45202[insert address] (“NURFC_____ ”) and the STATE OFOHIO (the "State"), acting by and through the Ohio Cultural Facilities Commission (the"Commission"), all being duly authorized to execute and deliver this Agreement.

WlTNESSETH: WHEREAS, the 127th[GA#] Ohio General Assembly appropriated bond funds in the amount of$850,000 [INSERT APPROPRIATION AMOUNT] in AppropriationCAP Line ItemC371H2[CAP#] of House Bill 562[#] to NURFCthe [INSERT NAME OF LPS] (the “ProjectSponsor”) for reimbursement of construction expenses previously incurred[SHORT

DESCRIPTION OF PROJECT] (the "Project"); and

WHEREAS, pursuant to the Ohio Revised Code (the “O.R.C.”) Chapter 154, Article VIII Section2i of the Ohio Constitution, and pursuant to a General Bond Order issued by the Treasurer ofState of the State of Ohio (the "Treasurer") on August 31, 2005, as thereafter amended andsupplemented, 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,constructing, reconstructing, rehabilitating, renovating, enlarging and otherwise improving,equipping and furnishing capital facilities; and

WHEREAS, pursuant to Resolution No. [R-XX-XX] adopted by the Commission on__________, 2011[INSERT YEAR], the Commission entered into a Cooperative UseAgreement (“CUA”) with the [INSERT NAME OF LPS]NURFC for construction of the Projectusing a portion of the proceeds of the Bonds (“Project Bond Funds”); and

WHEREAS, the [INSERT NAME OR DEFINED TERM FOR GUARANTOR],John E. Pepper,Jr., and Frances G. Pepper, through funds raised by John E. Pepper Jr., and Frances G.Pepperthe [INSERT NAME OR DEFINED TERM FOR GUARANTOR] through a bed tax andother sources (“John E. Pepper Jr., and Frances G. Pepper [INSERT NAME OR DEFINEDTERM FOR GUARANTOR] Funds”), supports the [INSERT NAME OF LPS]NURFC withpayments totaling approximately $XX00 annually; and

WHEREAS, the Commission, in order to secure repayment of the Bonds if there is a defaultunder the CUA with the [INSERT NAME OF LPS],NURFC, has requested that John E. PepperJr., and Frances G. Pepperthe [INSERT NAME OR DEFINED TERM FOR GUARANTOR] guaranty repayment of the Project Bond Funds with John E. Pepper Jr., and Frances G. Pepper [INSERT NAME OR DEFINED TERM FOR GUARANTOR] Funds; and

WHEREAS, John E. Pepper Jr., and Frances G. Pepper [INSERT NAME OR DEFINED TERMFOR GUARANTOR] desires to so guaranty repayment of the Project Bond Funds. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of whichis hereby acknowledged, stipulating to the veracity of the recitals above and for the purpose ofinducing the Commission to enter into the CUA with NURFCthe [INSERT NAME OF LPS], John

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Comment [A1]: Project Specific recital c

used here to describe the relationship betwee

Guarantor and the LPS




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E. Pepper Jr., and Frances G. Pepper [INSERT NAME OR DEFINED TERM FOR

GUARANTOR] as Guarantor and the Commission hereby agree as follows:

Section 1. Defined Terms.

In addition to the terms defined elsewhere in this Guaranty, the following terms shall have therespective meanings set forth below:

(a) “Business Day” means any day other than a Saturday, Sunday, public holiday or other dayon which banking institutions in Columbus, Ohio, are generally closed and do not conductbanking business.

(b) “Event of Default” means the occurrence of any breach or default under the CUA, any otherdocument executed in relation thereto, or this Guaranty which remains uncured followingthe expiration of any period of notice or grace applicable thereto under the pertinentagreement.

(c) “Guaranteed Obligation” means the payment when due, by acceleration or otherwise, of allof the indebtedness of the [INSERT NAME OF LPS]NURFC under the CUA for the ProjectBond Funds or in any other documents executed in relation thereto, which may be orbecome payable in accordance with the CUA or in any other documents executed inrelation thereto.

(d) “Guarantor” means John E. Pepper Jr., and Frances G. Pepper.the [LEGAL NAME OFTHE GUARANTOR]

(e) “Project Bond Funds” means the portion of the State of Ohio Cultural and Sports CapitalFacilities Bonds funds expended by the Commission on NURFC the [INSERT NAME OFLPS] project as set forth in the CUA.

(f) “Net Proceeds of Collateral” means an amount realized from the liquidation sale or othertransfer of collateral purchased by the [INSERT NAME OF LPS]NURFC using Project Bond

Funds after payment of all expenses of recovery.

(g) “CUA” means the Cooperative Use Agreement dated _____________, July 1, 2008 [INSERT YEAR] entered into by and between the [INSERT NAME OF LPS]NURFC andthe Commission.

Section 2. Guaranty Unconditional.

Guarantor, absolutely and unconditionally, guarantees the prompt payment and performancewhen due of the Guaranteed Obligation. Guarantor undertakes this continuing, absolute, andunconditional guaranty of the aforementioned payment and performance by NURFCthe[INSERT NAME OF LPS] notwithstanding that any portion of the Guaranteed Obligation may bevoid, voidable or unenforceable as between NURFC the [INSERT NAME OF LPS] and theCommission.

Section 3. Guaranty of Payment.






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This instrument is a guaranty of payment and performance, and not a guaranty of collection.

Upon the [INSERT NAME OF LPS]NURFC’s failure to pay or perform any of its obligationsunder the CUA or in any other documents executed in relation thereto to which it is a partypromptly as and when due and prior to the expiration of any applicable period of notice or gracethereunder, the Commission may proceed against the undersigned Guarantor to collect theGuaranteed Obligation, with or without proceeding against the [INSERT NAME OFLPS],NURFC any co-maker or co-surety or co-guarantor, any indorser or any other collateralwhich may then be held as security for the Guaranteed Obligation. Notwithstanding theforegoing, the Commission acknowledges and agrees that in proceeding against the Guarantorhereunder for payment of Guaranteed Obligation, the Guarantor shall not be required to paymore than [INSERT APPROPRIATION AMOUNT].$850,000.

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 ofGuarantor and the rights of the Commission under this Guaranty shall not be impaired oraffected in any manner by, and Guarantor hereby consents in advance to, and waives anyrequirement of notice for, any (1) disposition, impairment, release, surrender, substitution, ormodification of any collateral securing the Guaranteed Obligation or the obligations created bythis Guaranty or failure to perfect a security interest in any collateral; (2) release (includingadjudication or discharge in bankruptcy) or settlement with the [INSERT NAME OFLPS]NURFC or any other party which may be or become liable for the Guaranteed Obligat ion(including, without limitation, any maker, indorser, guarantor or surety); (3) delay in enforcementof 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 GuaranteedObligation or this Guaranty; (5) defense arising from the enforceability, validity or genuinenessof the CUA or the Bonds; (6) defenses or counterclaims that the [INSERT NAME OFLPS]NURFC may assert under or in respect of the CUA or in any other documents executed inrelation 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 andsatisfaction and usury; (7) extensions or modifications of the Guaranteed Obligation; or (8) otheract or omission which might otherwise constitute a legal or equitable discharge of theundersigned. 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 GuaranteedObligation and notice of any other kind in connection with the Guaranteed Obligation or thisGuaranty. In the event the Commission shall realize upon any collateral given to secure theCUA or the Project Bond Funds or other obligations of Nthe [INSERT NAME OF LPSURFC], theNet Proceeds of Collateral will be applied first to such portion and percentage of the GuaranteedObligation, not guaranteed by the undersigned Guarantor. The Commission has sole authorityto determine whether to proceed against the Collateral or to seek payment of the GuaranteedObligation by Guarantor.

Section 5. Certain Waivers.







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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, Guarantorhereby waives, releases and discharges any claim, right or remedy which the undersigned maynow have or may hereafter acquire against the [INSERT NAME OF LPS]NURFC that ariseshereunder or from the performance by Guarantor hereunder including, without limitation, anyclaim, remedy or right of subrogation, reimbursement, exoneration, contribution, indemnification,or participation in any claim, right or remedy of the Commission against the [INSERT NAME OFLPS]NURFC or any security which the Commission may have or acquire, without regard towhether or not such claim, right or remedy arises in equity, under contract, by statute, undercommon law or otherwise. Additionally, Guarantor waives any requirement that the Commissionexhaust any right or remedy, or proceed first against the [INSERT NAME OF LPS]NURFC orany security for the Guaranteed Obligation before calling upon Guarantor for payment of theGuaranteed Obligation.

Section 6. Subrogation and Subordination.

UNTIL SUCH TIME AS ONE HUNDRED PERCENT (100%) OF THE GUARANTEEDOBLIGATION SHALL HAVE BEEN SATISFIED OR DISCHARGED, REGARDLESS OF THEAMOUNT OF GUARANTOR’S OBLIGATION TO THE COMMISSION HEREUNDER,GUARANTOR IRREVOCABLY WAIVES ANY AND ALL RIGHTS GUARANTOR MAY HAVE ATANY TIME (WHETHER ARISING DIRECTLY OR INDIRECTLY, BY OPERATION OF LAW ORCONTRACT) TO ASSERT ANY CLAIM AGAINST THE [INSERT NAME OF LPS]NURFC ONACCOUNT OF PAYMENTS 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 HUNDREDPERCENT (100%) OF THE GUARANTEED OBLIGATION SHALL HAVE BEEN SATISFIED ORDISCHARGED, REGARDLESS OF THE AMOUNT OF GUARANTOR’S OBLIGATION TO THECOMMISSION HEREUNDER, GUARANTOR IRREVOCABLY SUBORDINATES ANY AND ALLINDEBTEDNESS OF THE [INSERT NAME OF LPS]NURFC TO THE GUARANTOR,PRESENT AND FUTURE, HOWEVER EVIDENCED, TO THE PRIOR PAYMENT OF THEGUARANTEED 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 mustotherwise be restored or returned by the Commission upon the insolvency, bankruptcy,dissolution, liquidation or reorganization of the [INSERT NAME OF LPS]NURFC or upon or asa result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officerfor, NURFCthe [INSERT NAME OF LPS], this Guaranty will continue to be effective, or bereinstated, as the case may be, all as though such payment had not been made.

Section 8. Miscellaneous Provisions.

(a) From time to time at the Commission’s request, the undersigned Guarantor will execute anddeliver to or as directed by the Commission any and all documents, instruments oragreements of further assurance that the Commission may reasonably require to confirmthis Guaranty or to carry out the purpose and intent hereof.





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(b) This Guaranty may not be modified, amended, discharged or terminated except by a written

instrument executed by each party against whom such modification, amendment, dischargeor termination is sought.

(c) No course of dealing and no delay by the Commission in exercising any right or remedyhereunder will affect or impair any other or future exercise of any such right or remedy. Therights and remedies of the Commission under this Guaranty are cumulative and notexclusive of any rights or remedies which may be available to the Commission under theCUA or in any other documents executed in relation thereto, at law or in equity; any or allsuch remedies may be exercised concurrently or successively.

(d) If, after payment of the Guaranteed Obligation is sought by the Commission, John E.Pepper Jr., and Frances G. Pepper, [INSERT NAME OR DEFINED TERM FORGUARANTOR] areis unable to pay the outstanding Project Bond Funds in a singlepayment, John E. Pepper Jr., and Frances G. Pepper [INSERT NAME OR DEFINEDTERM FOR GUARANTOR], if it is in control of the [INSERT NAME OF LPS]NURFC facility,

shall ensure that the improvements paid for with the Project Bond Funds are not in anymanner which would adversely affect (i) the validity of the Bonds, or (ii) the exclusion of theinterest on the Bonds from the gross income of the holders of the Bonds for federal incometax purposes.

(e) Guarantor agrees to pay, or to reimburse the Commission for, any and all out-of-pocketexpenses reasonably incurred by the Commission (including, without limitation, reasonableattorneys’ fees and costs) in connection with the enforcement of the Commission’s rightsunder this Guaranty.

(f) If any provision of this Guaranty, or the application of any such provision to any person orcircumstance, is held invalid or unenforceable, the remainder of this Guaranty or theapplication of any such provision to other persons or circumstances will not be affectedthereby, 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, anobligation of such Guarantor’s successors and assigns, and will inure to the benefit of theCommission 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 beenproperly given (1) one Business Day after having been deposited for overnight delivery withany reputable overnight courier service or (2) three Business Days after having beendeposited in any post office or mail depository regularly maintained by the U.S. PostalService 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 forthon the first page of this Guaranty or addressed as such party may from time to timedesignate by written notice to the other parties. Either party by notice to the other maydesignate additional or different addresses for subsequent notices or communications.

(j) To the greatest extent permitted by law, Guarantor hereby waives any and all rights torequire marshalling of (1) the [INSERT NAME OF LPS]NURFC’s assets or (2) any other





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collateral for the CUA by the 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 havingjurisdiction in the city of Columbus and the State of Ohio, and (b) waives any objectionwhich it may have at any time to the laying of venue of any proceeding brought in any suchcourt, waives any claim that any proceeding has been brought in an inconvenient forum andfurther waives the right to object, with respect to such proceeding, that such court does nothave jurisdiction over such party. Nothing in this Guaranty shall preclude the Commissionfrom bringing a proceeding in any other jurisdiction nor will the bringing of a proceeding inany 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 onany counterpart may be attached to any other counterpart; all such signed counterpartsshall together comprise a single unified instrument.

(l) Guarantor hereby authorizes any attorney at law (which attorney may be an attorney

associated with the Commission’s counsel and the Guarantor hereby waiving any conflict ofinterest) at any time or times to appear in any state or federal court of record in the UnitedStates of America after all or any part of the Guaranteed Obligation shall have become due,whether by lapse of time, acceleration, or otherwise, and in each case to waive theissuance and service of process, to present to the court this Guaranty and any note or otherwriting (if any) evidencing the obligation or obligations in question, to admit the due datethereof and the nonpayment thereof when due, to confess judgment against theundersigned 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 allrights of appeal and any stay of execution. Such attorney confessing judgment on behalf ofand against the undersigned Guarantor shall be entitled to a fee which may be paid by theCommission and for which Guarantor shall indemnify the Commission. The foregoingwarrant of attorney shall survive any judgment, it being understood that should anyjudgment against Guarantor be vacated for any reason, the Commission may neverthelessutilize the foregoing warrant of attorney in thereafter obtaining one or more additional

judgments against the undersigned Guarantor. The Guarantor waives any conflict ofinterest in an attorney retained by the Commission to confess judgment against it upon thisGuaranty.

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 ANDCOURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKENAGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURTCAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAYHAVE 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:




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_______________________________ Signature

_______________________________ By: __________________________________ Printed Name

_____________________________________ _______________________________ Printed NameSignature

Title: ________________________________ _______________________________ Printed Name By: __________________________________

_____________________________________ Printed Name

Title: _________________________________

Signed in the presence of: STATE OF OHIO, by and through theOHIO CULTURAL FACILITIES COMMISSION

_______________________________ Signature

_______________________________ By: __________________________________ Printed Name Kathleen M. Fox, Executive Director

_______________________________ Signature

_______________________________ Printed Name




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Approved as to form:

Richard Cordray, Ohio Attorney Generalon attached approval form dated: ___________