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11-DRAFT NURFC Guaranty Agreement _4_

11-DRAFT NURFC Guaranty Agreement _4_

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Published by: COAST on Apr 05, 2011
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DRAFT
 
– FOR REVIEW PURPOSES ONLY 
GUARANTY
 THIS GUARANTY entered into effective this ___ day of ____________,201_[INSERT YEAR],is made and delivered byThe National Underground Railroad Freedom Center,
[INSERTLEGAL NAME OF GUARANTOR]
,an Ohio non-profit corporation, with an address at50 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, the127
th
[GA#]Ohio General Assembly appropriated bond funds in the amount of$850,000
[INSERT APPROPRIATION AMOUNT]
 inAppropriationCAPLine Item C371H2
[
 
CAP#]
of House Bill562
[#]
toNURFCthe
[INSERT NAME OF LPS]
(the “ProjectSponsor”)forreimbursement of construction expenses previously incurred[SHORTDESCRIPTION OF PROJECT](the "Project"); andWHEREAS, 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; andWHEREAS, pursuant to Resolution No.
[R-XX-XX]
adopted by the Commission on__________,2011
[INSERT YEAR]
, the Commission entered into a Cooperative UseAgreement (“CUA”) withthe
[INSERT NAME OF LPS]
NURFCfor 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 byJohn E. Pepper Jr., and Frances G.
 
Pepperthe
[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”), supportsthe
[INSERT NAME OF LPS]
NURFCwith
 
payments totaling approximately $
XX00
annually; andWHEREAS, the Commission, in order to secure repayment of the Bonds if there is a defaultunder the CUA withthe
[INSERT NAME OF LPS]
,NURFC,has requested thatJohn E. Pepper
 
Jr., 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; andWHEREAS,
 
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 withNURFCthe
[INSERT NAME OF LPS]
,John
 
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Comment [A1]:
Project Specific recital can beused here to describe the relationship between theGuarantor and the LPS
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C:\Documents and Settings\kathy\Local Settings\Temporary Internet Files\Content.Outlook\UBZ8BLGV\DRAFT NURFC GuarantyAgreement (4).dotxC:\Documents
 
and Settings\jessicad\Desktop\NURFC Guaranty Agreement.dotx
 
C:\Documents andSettings\jessicad\Desktop\NURFC Guaranty Agreement.dotxhttp://ocfcsp/legal/Shared Documents/Guaranty Agreement.dotx 1/29/201112/8/201012/8/201012/8/201012/8/201012/8/2010 
- 2 -
 
E. Pepper Jr., and Frances G. Pepper
[INSERT NAME OR DEFINED TERM FORGUARANTOR]
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 ofthe
[INSERT NAME OF LPS]
NURFCunder 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 onNURFC 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 bythe
[INSERT NAME OF LPS]
NURFCusing Project BondFunds after payment of all expenses of recovery.(g) “CUA” means the Cooperative Use Agreement dated_____________,
 
July 1, 2008
 [INSERT YEAR]
 
 
entered into by and betweenthe
[INSERT NAME OF LPS]
NURFCandthe 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 byNURFCthe
[INSERT NAME OF LPS]
notwithstanding that any portion of the Guaranteed Obligation may bevoid, voidable or unenforceable as betweenNURFC the
[INSERT NAME OF LPS]
and theCommission.Section 3. Guaranty of Payment.
 
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C:\Documents and Settings\kathy\Local Settings\Temporary Internet Files\Content.Outlook\UBZ8BLGV\DRAFT NURFC GuarantyAgreement (4).dotxC:\Documents
 
and Settings\jessicad\Desktop\NURFC Guaranty Agreement.dotx
 
C:\Documents andSettings\jessicad\Desktop\NURFC Guaranty Agreement.dotxhttp://ocfcsp/legal/Shared Documents/Guaranty Agreement.dotx 1/29/201112/8/201012/8/201012/8/201012/8/201012/8/2010 
- 3 -
This instrument is a guaranty of payment and performance, and not a guaranty of collection.Uponthe
[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 againstthe
[INSERT NAME OFLPS]
,NURFCany 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 AM
 
OUNT].$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 withthe
[INSERT NAME OFLPS]
NURFCor any other party which may be or become liable for the Guaranteed Obligation(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 thatthe
[INSERT NAME OFLPS]
NURFCmay 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 ofNthe [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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