WITNESSETH
Self-Bond No. ______________
WHEREAS, (hereinafter referred to as Guarantor) owns or controls (hereinafter referred to as Operator);
WHEREAS, Guarantor satisfies the financial requirements and criteria set by the McCracken County Subdivision Regulations pertaining to self-funded Bond guarantees;
WHEREAS, Operator has requested and desires to place with the McCracken County Fiscal Court its self-bond to secure public improvement as set forth in the Subdivision Public Improvements Agreement;
WHEREAS, Guarantor desires to guarantee the funds pledged under Operator’s self-bond;
WHEREAS, Guarantor has the full authority under the laws of the Commonwealth of Kentucky, under which it is incorporated, its articles of incorporation and by-laws to enter into this guarantee;
WHEREAS, Guarantor has full approval from its Board of Directors to enter into this guarantee;
WHEREAS, it is in the best interests of Guarantor, in the legitimate furtherance of its purposes and business, to enter into this guarantee;
I) NOW, for value received, and in consideration of the approval and execution of Self-Bond No. __________, Guarantor, a corporation created and existing under the laws of the Commonwealth of Kentucky, their successors and assigns, jointly and severally, do hereby covenant, guarantee, promise and agree to make prompt payment upon demand of the full amount, or portions thereof, of the self-bond of Operator, on the terms and conditions described herein, said payment of monies to be used for the completion of public improvements in strict compliance with the terms of the Subdivision Public Improvements agreement. This guarantee covers any and all demands, liabilities, charges, and expenses of whatsoever kind or nature, which McCracken County may at any time sustain or incur by reason of or in consequence of having accepted the self-bond or Operator, including all litigation costs and all administrative costs reasonably incurred by McCracken County in any successful effort to enforce obligations and requirements of the Operator with respect to the operation or activity that is bonded.
II) This Corporate Guarantee is a continuing guarantee and is to be in full force and effect until all of the terms of Operator’s self-bond and Subdivision Public Improvements Agreement has been satisfactorily performed or otherwise discharged to the satisfaction of McCracken County.
III) Guarantor hereby fully consents to the following, any of which shall not affect nor change or discharge the obligations of this guarantee:
A) Any renewals, revisions, modifications to the terms of the self-bond, including increases or decreases in the dollar amount of the bond, or the lands to which it applies.
B) Any extension of time for performance of the whole or any part of the conditions of the self-bond.
C) Any changes, revisions, modifications or renewals to the terms of the permits, including the mining and reclamation plans contained therein.
IV) Guarantor expressly waived the following:
A) Notice of the acceptance of this Corporate Guarantee by McCracken County.
B) Notice of renewals, revisions, modifications to the self-bond.
C) Notice of changes, revision, modifications or renewals of the terms of the permits of the Operator.
D) Notice of any extensions of time for performance of the whole or any part the condition of the self-bond.
E) Notice of bond forfeiture proceedings, notice of any demand for payment of self-bond; or any dishonor thereof.
F) All other notices to which Guarantor might otherwise be entitled in connection with this Corporate Guarantee or the obligation hereby guaranteed.
G) The institution of any civil actions or the exhaustion of legal remedies against the Operator as a condition to enforce of this Corporate Guarantee.
V) This Corporate Guarantee is subject to the following conditions, to-wit:
A) Any demand for funds shall be accompanied by a signed statement that McCracken County has forfeited, in whole or in part, the self-bond.
B) This Corporate Guarantee shall be limited in amount as follows:
1) Public Improvement costs: the indebtedness reflected by the cost of completion of the Public Improvements in compliance with the Subdivision Public Improvements Agreement.
2) Litigation and administrative costs: the actual amount of such costs reasonably incurred in any successful effort to enforce requirements and obligations of the Operator and/or the obligations of the Guarantor under this agreement. Litigation and administrative costs shall not be limited by the indebtedness reflected by the approved self-bond.
C) If the Operator fails to complete the Public Improvements in compliance with the Subdivision Public Improvements Agreement, the Guarantor shall be required to pay to McCracken County the amount in full necessary to complete the approved reclamation plan, no to exceed the bond amount, within ten (10) business days after receipt of McCracken County demand for payment. Guarantor hereby agrees that demands for payment may be based and are payable on projections of costs or their actual accrual and that liability for payment shall not be contingent on the costs having been presently sustained.
D) This Corporate Guarantee may be canceled only upon notice of said cancellation being sent to the Operator and McCracken County at least ninety (90) days in advance of the proposed cancellation date and then only upon acceptance of the cancellation by McCracken County. The cancellation shall be accepted by McCracken County if the Operator obtains a suitable replacement bond before the proposed cancellation date or if the lands for which the self-bond, or portion thereof, was accepted have not and will not be disturbed under the terms of the permit, or the self-bond has been released in accordance with the provisions of Chapter 22, Article 3 and the rules and regulations promulgated thereunder.
VI) This Corporate Guarantee shall be and continue effective notwithstanding any present or future legal disability of the Operator.
VII) There are no conditions or limitations to this Corporate Guarantee except those contained herein at the date hereof, and thereafter no alteration, change or modification hereof shall be binding or effective unless executed in writing, signed by the guarantor, and approved by McCracken County.
VIII) Guarantor agrees to pay all costs and expenses incurred by McCracken County which are expended in any successful action instituted to enforce the terms of this guarantee.
IX) This guarantee shall be good and effective notwithstanding any change or changes in the business name of the operator.
X) No changes, revisions, modifications or renewals to the self-bond of the Operator or the terms of permits shall act as a release of the Guarantor from this Corporate Guarantee.
XI) All notices required to, or which may be given shall be effective when received by the addressees at the addresses specified below. Personal delivery shall have the same effect as notice given by mail. Notices given by mail shall be sent certified.
GUARANTOR
Name | Address |
FOR
Name | Address |
XII) In case of the insolvency, bankruptcy or dissolution of the Operator, all funds represented by the self-bond shall immediately become due and payable and this Corporate Guarantee may thereupon be enforced.
XIII) This Corporate Guarantee is one of payment and not of collection.
XIV) The failure of any person or persons to sign this Corporate Guarantee shall not release or affect the liability of Guarantor.
XV) This Corporate Guarantee is a binding contract and shall be construed under and subject to the laws of the Commonwealth of Kentucky with jurisdiction and venue rested solely in the McCracken County Circuit Court.
(Ord. passed 11-27-2017)