exv10w17






Exhibit 10.17




AMENDED AND RESTATED

SECURITY AGREEMENT




January 2010




H. Wayne Huizenga

450 East Las Olas Boulevard

Suite 1500

Fort Lauderdale, Florida 33301

(“Debtor”)




Wachovia Bank, National Association

Charlotte, North Carolina 28202

(Hereinafter referred to as “Bank”)



For value received and to secure payment and performance of the obligations due Bank under the
Application and Agreement for Letter of Credit executed by Service South, LLC and HB Service, LLC
(collectively, “Borrower”) dated April 29, 2009, and any extensions, renewals, modifications or
novations thereof (the “L/C Agreement”), this Amended and Restated Security Agreement (the
“Security Agreement”) and the other Loan Documents, and all costs and expenses incurred by Bank to
obtain, preserve, perfect and enforce the security interest granted herein and to maintain,
preserve and collect the property subject to the security interest (collectively, “Secured
Obligations”), Debtor hereby grants to Bank a continuing security interest in and lien upon, and
for security purposes assigns and transfers to Bank until all of the Secured Obligations are
repaid in full, the following described property, whether now owned or hereafter acquired, and any
additions, replacements, accessions, or substitutions thereof and all cash and non-cash proceeds
and products thereof (collectively, “Collateral”):



Debtor’s deposit account number(s)                      with Bank (“Assigned Deposits”).



Debtor hereby represents and agrees that:



OWNERSHIP. Debtor owns the Collateral. The Collateral is free and clear of all liens, security
interests, and claims except those previously reported in writing to and approved by Bank, and
Debtor will keep the Collateral free and clear from all liens, security interests and claims, other
than those granted to or approved by Bank. Except as otherwise provide herein, until all of the
Secured Obligations are repaid in full, Bank shall have the entire right and interest in and to the
Assigned Deposits. Upon the maturity of the Assigned Deposits, other than Assigned Deposits at Bank
that automatically roll over at maturity, Bank shall reinvest the Assigned Deposits in an
investment of Bank’s choice. Bank shall have no liability to Debtor for any loss incurred in
connection with or arising out of any such reinvestment except for loss resulting from Bank’s gross
negligence or willful misconduct. The assignment evidenced by this
Security Agreement is a
continuing one and is irrevocable so long as any of the Secured Obligations are outstanding or the
Bank shall have any obligations under the Loan Documents and shall terminate only upon payment or
other satisfaction in full of all Secured Obligations or Bank’s acknowledgment in writing that
this Security Agreement has been terminated. Upon termination of this Security Agreement and to
the extent the Assigned Deposits have not been applied in satisfaction of the Secured Obligations,
Bank shall reassign the Assigned Deposits to Debtor and return any passbooks, certificates, and
other documents in Bank’s possession at Debtor’s request.



NAME AND OFFICES. The name and address of Debtor appearing at the beginning of this Security
Agreement are Debtor’s exact legal name and the address of his business. There has been no change
in the name of Debtor, or the name under which Debtor conducts business, within the five years
preceding the date hereof except as previously reported in writing to Bank. Debtor has not moved
his business address or state of residence within the five years preceding the date hereof except
as previously reported in writing to Bank.





 









 







TITLE/TAXES. Debtor has good and marketable title to the Collateral and will warrant and
defend same against all claims. Debtor will not transfer, sell, or
lease Collateral (except as
permitted herein). Debtor agrees to pay promptly all taxes and assessments upon or for the use of
Collateral and on this Security Agreement. At its option, Bank may discharge taxes, liens,
security interests or other encumbrances at any time levied or placed on Collateral. Debtor
agrees to reimburse Bank, on demand, for any such payment made by Bank. Any amounts so paid shall
be added to the Secured Obligations.



WAIVERS AND ACKNOWLEDGMENTS. Debtor agrees not to assert against Bank as a defense (legal or
equitable), as a set-off, as a counterclaim, or otherwise, any claims Debtor may have against any
seller or lessor that provided personal property or services relating to any part of the
Collateral or against any Borrower or any other party liable to Bank for all or any part of the
Secured Obligations. Debtor waives all exemptions and homestead rights with regard to the
Collateral. Debtor waives any and all rights to any bond or security which might be required by
applicable law prior to the exercise of any of Bank’s remedies against any Collateral. All rights
of Bank and security interests hereunder, and all obligations of Debtor hereunder, shall be
absolute and unconditional, not discharged or impaired irrespective of (and regardless of whether
Debtor receives any notice of): (i) any lack of validity or enforceability of any Loan Document;
(ii) any change in the time, manner or place of payment or performance, or in any term, of all or
any of the Secured Obligations or the Loan Documents or any other amendment or waiver of or any
consent to any departure from any Loan Document; or (iii) any exchange, insufficiency,
unenforceability, enforcement, release, impairment or non-perfection of any collateral, or any
release of or modifications to or insufficiency, unenforceability or enforcement of the
obligations of any guarantor or other obligor. To the extent
permitted by law, Debtor hereby
waives any rights under any valuation, stay, appraisement, extension or redemption laws now
existing or which may hereafter exist and which, but for this provision, might be applicable to
any sale or disposition of the Collateral by Bank; and any other circumstance which might
otherwise constitute a defense available to, or a discharge of any party with respect to the
Secured Obligations, including but not limited to the following:



Debtor waives and releases the following rights, demands, and defenses Debtor may have with
respect to Bank and collection of the Secured Obligations: (a) promptness and diligence in
collection of any of the Secured Obligations from the Borrower or any other person liable thereon,
and in foreclosure of any other security interest and sale of any other property serving as
collateral for the Secured Obligations; (b) any law or statute that requires that Bank make demand
upon, assert claims against, or collect from Borrower or other persons or entities, foreclose any
security interest, sell collateral, exhaust any remedies, or take any other action against
Borrower or other persons or entities prior to making demand upon, collecting from or taking
action against Debtor with respect to the Secured Obligations, including any such rights
Debtor might otherwise have had under Va. Code §§ 49-25 and
49-26, et seq., N.C.G.S. §§
26-7, et seq., Tenn. Code Ann. § 47-12-101, as in effect from time to time, O.C.G.A. §
10-7- 24, Mississippi Code Ann. Section 87-5-1 and any successor statute and any other applicable
law; (c) any law or statute that requires that Borrower or any other person be joined in, notified
of or made part of any action against Debtor; (d) notice of extensions, modifications, renewals,
or novations of the Secured  Obligations, of any new transactions or other relationships between
Bank, Borrower and/or any guarantor, and of changes in the financial condition of, ownership of,
or business structure of Borrower or any guarantor; (e) presentment protest, notice of dishonor,
notice of default, demand for payment, notice of intention to accelerate maturity or notice of
acceleration of maturity; (f) any right to which Debtor is or may become entitled to be subrogated
to Bank’s rights against Debtor or to seek contribution, reimbursement, indemnification, payment
or the like, or participation in any claim, right or remedy of Bank against Borrower or any
security which Bank now has or hereafter acquires, until such time as the Secured Obligations have
been fully satisfied beyond the expiration of any applicable preference period; (g) any claim or
defense that acceleration of maturity of the Secured Obligations is stayed against Debtor because
of the stay of assertion or of acceleration of claims against any other person or entity for any
reason including the bankruptcy or insolvency of that person or entity; and (h) the right to
marshalling of Debtor’s assets or the benefit of any exemption claimed by Debtor. Debtor
acknowledges and represents that Debtor has relied upon Debtor’s own due diligence in making an
independent appraisal of Borrower, Borrower’s business affairs and financial condition, and any
collateral; Debtor will continue to be responsible for making its own independent appraisal of
such matters; and Debtor has not relied upon Bank for information regarding Borrower or any
collateral.




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FINANCIAL CONDITION. Debtor warrants, represents and covenants to Bank that on and after the
date hereof: (a) the fair saleable value of Debtor’s assets exceeds its liabilities, Debtor is
meeting its current liabilities as they mature, and Debtor is and shall remain solvent; (b) all
financial statements of Debtor furnished to Bank are correct and accurately reflect the financial
condition of Debtor as of the respective dates thereof; (c) since the date of such financial
statements, there has not occurred a material adverse change in the financial condition of
Debtor; (d) there are not now pending any court or administrative proceedings or undischarged
judgments against Debtor, no federal or state tax liens have been filed or threatened against
Debtor, and Debtor is not in default or claimed default under any agreement; and (e) at such
reasonable times as Bank requests, Debtor will furnish Bank with such other financial information
as Bank may reasonably request.



INTEREST AND APPLICATION OF PAYMENTS. Regardless of any other provision of this Security
Agreement or other Loan Documents, if for any reason the effective interest on any of the Secured
Obligations should exceed the maximum lawful interest, the effective interest shall be deemed
reduced to and shall be such maximum lawful interest, and any sums of interest which have been
collected in excess of such maximum lawful interest shall be applied as a credit against the
unpaid principal balance of the Secured Obligations. Monies received from any source by Bank for
application toward payment of the Secured Obligations may be applied to such Secured Obligations
in any manner or order deemed appropriate by Bank.



NOTIFICATIONS; LOCATION OF COLLATERAL. Debtor will notify Bank in writing at least 30 days prior
to any change in: (i) Debtor’s chief place of business or state of residence; or (ii) Debtor’s
name or identity. In addition, Debtor shall promptly notify Bank of any claims or alleged claims
of any other person or entity to the Collateral or the institution of any litigation,
arbitration, governmental investigation or administrative proceedings against or affecting the
Collateral. Debtor will keep Collateral at the location(s) previously provided to Bank until such
time as Bank provides written advance consent to a change of location. Debtor will bear the cost
of preparing and filing any documents necessary to protect Bank’s liens.



FINANCING STATEMENTS, CERTIFICATES OF TITLE, POWER OF ATTORNEY. No financing statement (other than
any filed or approved by Bank) covering any Collateral is on file in any public filing office.
Debtor authorizes the filing of one or more financing statements covering the Collateral in form
satisfactory to Bank, and without Debtor’s signature where authorized by law, agrees to deliver
certificates of title on which Bank’s lien has been indicated covering any Collateral subject to a
certificate of title statute, and will pay all costs and expenses of filing or applying for the
same or of filing this Security Agreement in all public filing offices, where filing is deemed by
Bank to be desirable. Debtor hereby constitutes and appoints Bank the true and lawful attorney of
Debtor with full power of substitution to take any and all appropriate action and to execute any
and all documents, instruments or applications that may be necessary or desirable to accomplish
the purpose and carry out the terms of this Security Agreement, including, without limitation, to
ask, demand, collect, receive, receipt for, sue for, compound and give acquaintance for any and
all amounts which may be or become due and payable under the Assigned Deposits; to execute any and
all withdrawal requests, receipts or other orders for the payment of money drawn on the Assigned
Deposits and to endorse the name of Bank on all instruments given in payment or in partial payment
therefor. The foregoing power of attorney is coupled with an interest and shall be irrevocable
until all of the Secured Obligations have been paid in full. Neither Bank nor anyone acting on its
behalf shall be liable for acts, omissions, errors in judgment, or mistakes in fact in such
capacity as attorney-in-fact. Debtor ratifies all acts of Bank as attorney-in-fact. Debtor agrees
to take such other actions, at Debtor’s expense, as might be requested for the perfection,
continuation and assignment, in whole or in part, of the security interests granted herein and to
assure and preserve Bank’s intended priority position. If certificates, passbooks, or other
documentation or evidence is/are issued or outstanding as to any of the Collateral, Debtor will
cause the security interests of Bank to be properly protected, including perfection by notation
thereon or delivery thereof to Bank.



WITHDRAWAL OF ASSIGNED DEPOSITS. So long as the balance of the Assigned Deposits exceeds
$2,842,105, Debtor may withdraw funds and otherwise deal with the Assigned Deposits in the
ordinary




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course of its business. If the balance of the Assigned Deposits is less than or equal to
$2,842,105, Debtor agrees that it will no longer be permitted to withdraw funds from or exercise
any authority of any kind with respect to the Assigned Deposits. At such time, Bank shall have
the exclusive authority to withdraw, or direct the withdrawal of, funds from the Assigned
Deposits. For clarification purposes, the parties agree that Debtor may not withdraw or otherwise
deal funds from the Assigned Deposits, and Bank shall have no obligation to honor any request for
such withdrawal or other action if, after giving effect to such withdrawal or other action, the
balance of the Assigned Deposits would be less than $2,842,105. So long as this Security
Agreement remains in effect, the Assigned Deposits will be titled as directed by Bank. In the
event the amount of the letter of credit issued under the L/C Agreement that the Collateral and
Assigned Deposits secure is reduced below $2,700,000, all references in this section to
“$2,842,105” shall be deemed to automatically be revised to equal an amount (the “New Threshold
Amount”) such that the new reduced amount of the letter of credit issued under the L/C Agreement
is equal to 95% of the New Threshold Amount.



COLLATERAL DUTIES. Bank shall have no custodial or ministerial duties to perform with respect to
Collateral pledged, as a result of this Security Agreement or any of the Loan Documents, except
as set forth herein; and by way of explanation and not by way of limitation. Bank shall incur no
liability for any of the following: (i) loss or depreciation of Collateral (unless caused by its
willful misconduct or gross negligence), (ii) failure to present any paper for payment or
protest, to protest or give notice of nonpayment, or any other notice with respect to any paper
or Collateral. Bank’s sole duty with respect to the custody, safekeeping and physical
preservation of any certificate, passbook, or other documentation evidencing the Assigned
Deposits in its possession shall be to deal with it in the same manner as it deals with similar
property for its own account. Neither Bank, nor any of its employees or agents shall be liable for
failure to demand, collect, or realize upon any of the Assigned Deposits or for any delay in
doing so.



TRANSFER OF COLLATERAL. Bank may assign its rights in Collateral or any part thereof to any
assignee who shall thereupon become vested with all the powers and rights herein given to Bank
with respect to the property so transferred and delivered, and Bank shall thereafter be forever
relieved and fully discharged from any liability with respect to such property so transferred,
but with respect to any property not so transferred, Bank shall retain all rights and powers
hereby given.



INSPECTION, BOOKS AND RECORDS. Debtor will at all times keep accurate and complete records
covering each item of Collateral, including the proceeds therefrom. Bank, or any of its agents,
shall have the right, at intervals to be determined by Bank and without hindrance or delay, at
Debtor’s expense, to inspect, audit, and examine the Collateral during normal business hours and
to make copies of and extracts from the books, records, journals, orders, receipts, correspondence
and other data relating to . Collateral, Debtor’s business or any other transaction between the
parties hereto. Debtor will at its expense furnish Bank copies thereof upon request. For the
further security of Bank, it is agreed that Bank has and is hereby granted a security interest in
all books and records of Debtor pertaining to the Collateral.



COMPLIANCE WITH LAW. Debtor will comply with all federal, state and local laws and regulations,
applicable to it, including without limitation, laws and regulations relating to the environment,
labor or economic sanctions, in the creation, use, operation, manufacture and storage of the
Collateral and the conduct of its business.



REGULATION U. None of the proceeds of the credit secured hereby shall be used directly or
indirectly for the purpose of purchasing or carrying any margin stock in violation of any of the
provisions of Regulation U of the Board of Governors of the Federal Reserve System (“Regulation
U”), or for the purpose of reducing or retiring any indebtedness which was originally incurred to
purchase or carry margin stock or for any other purchase which might render the Loan a “Purpose
Credit” within the meaning of Regulation U.



ATTORNEYS’ FEES AND OTHER COSTS OF COLLECTION. Debtor shall pay all of Bank’s reasonable
expenses incurred in enforcing this Security Agreement and in preserving and liquidating
Collateral,









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including but not limited to, reasonable arbitration, paralegals’, attorneys’ and experts’ fees
and expenses, whether incurred with or without the commencement of a suit, trial, arbitration, or
administrative proceeding, or in any appellate or bankruptcy proceeding.



DEFAULT. If any of the following occurs, a default (“Default”) under this Security Agreement shall
exist: Loan Document Default. A default under any Loan Document Collateral Loss or Destruction. Any
loss, theft, substantial damage, or destruction of Collateral not fully covered by insurance, or
as to which insurance proceeds are not remitted to Bank within 30 days of the loss. Collateral
Sale, Lease or Encumbrance. Any sale, lease, or encumbrance of any Collateral not specifically
permitted herein without prior written consent of Bank. Levy, Seizure or Attachment. The making of
any levy, seizure, or attachment on or of Collateral which is not removed within 10 days.
Cessation; Bankruptcy. The death of, appointment of guardian
for, dissolution of, termination of
existence of, loss of good standing status by, appointment of a receiver for, assignment for the
benefit of creditors of, or commencement of any bankruptcy or insolvency proceeding by or against
Debtor, its Subsidiaries or Affiliates if any, or any general partner of or the holder(s) of the
majority ownership interests in Debtor or any party to the Loan Documents (“Affiliate” shall have
the meaning as defined in 11 U.S.C, § 101, as in effect from time to time; and “Subsidiary” shall
mean any business in which Debtor holds, directly or indirectly, a controlling interest).
Unauthorized Collection of Collateral. Any attempt to collect, cash in or otherwise recover
deposits that are Collateral. Unauthorized Termination. Any attempt to terminate, revoke, rescind,
modify, or violate the terms of this Security Agreement without the prior written consent of Bank.
Material Adverse Change. Bank determines in good faith, in its sole discretion, that the prospects
for payment or performance of the Secured Obligations are impaired or a material adverse change
has occurred in the business or prospects of Debtor or Borrower or any guarantor, financial or
otherwise. Assigned Deposits Balance. The balance of the Assigned Deposits is less than
$2,700,000.



REMEDIES ON DEFAULT (INCLUDING POWER OF SALE). If a Default occurs Bank shall have all the rights
and remedies of a secured party under the Uniform Commercial Code. Without limitation thereto,
Bank shall have the following rights and remedies: (i) to take immediate possession of Collateral,
without notice or resort to legal process, and for such purpose, to enter upon any premises on
which Collateral or any part thereof may be situated and to remove the same therefrom, or, at its
option, to render Collateral unusable or dispose of said Collateral on Debtor’s premises; (ii) to
require Debtor to assemble the Collateral and make it available to Bank at a place to be
designated by Bank; (iii) to exercise its or its affiliate’s right of set-off or Bank lien as to
any monies of Debtor deposited in deposit accounts and investment accounts of any nature
maintained by Debtor with Bank or affiliates of Bank, without advance notice, regardless of
whether such accounts are general or special; (iv) to dispose of Collateral, as a unit or in
parcels, separately or with any real property interests also securing the Secured Obligations, in
any county or place to be selected by Bank, at either private or public sale (at which public sale
Bank may be the purchaser) with or without having the Collateral physically present at said sale;
(v) to apply toward and set-off against and apply to the then unpaid balance of the Secured
Obligations the Assigned Deposits (accelerated to maturity if necessary), even if effecting such
set-off results in a loss or reduction of interest or the imposition of a penalty applicable to
the early withdrawal of time deposits; (vi) to receive any interest or payments in respect of the
Assigned Deposits and apply such amounts and the Assigned Deposits to the Secured Obligations in
such manner as Bank, in its sole discretion, may determine.



Any notice of sale, disposition or other action by Bank required by law and sent to Debtor at
Debtor’s address shown above, or at such other address of Debtor as may from time to time be shown
on the records of Bank, at least 5 days prior to such action, shall constitute reasonable notice
to Debtor. Notice shall be deemed given or sent when mailed postage prepaid to Debtor’s address as
provided herein. Bank shall be entitled to apply the proceeds of any sale or other disposition of
the Collateral, and the payments received by Bank with respect to any of the Collateral, to
Secured Obligations in such order and manner as Bank may determine. Collateral that is perishable
or subject to rapid declines in value or is customarily sold in recognized markets may be disposed
of by Bank without providing notice of sale. Debtor waives any and all requirements that the Bank
sell or dispose of all or any part of the Collateral at any particular time, regardless of whether
Debtor has requested such sale or disposition.





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REMEDIES ARE CUMULATIVE. No failure on the part of Bank to exercise, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise by Bank or any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any right, power or remedy. The remedies herein provided are
cumulative and are not exclusive of any remedies provided by law, in equity, or in other Loan
Documents.



INDEMNIFICATION. Debtor shall protect, indemnify and save harmless Bank from and against all
losses, liabilities, obligations, claims, damages, penalties, fines, causes of action, costs and
expenses (including, without limitation, reasonable attorneys’ fees and expenses) (collectively,
“Damages”) imposed upon, incurred by or asserted or assessed against Bank on account of or in
connection with (i) the Loan Documents or any failure or alleged failure of Debtor to comply with
any of the terms of, or the inaccuracy or breach of any representation in, the Loan Documents,
(ii) the Collateral or any claim of loss or damage to the Collateral or any injury or claim of
injury to, or death of, any person or property that may be occasioned by any cause whatsoever
pertaining to the Collateral or the use, occupancy or operation thereof, (iii) any failure or
alleged failure of Debtor to comply with any law, rule or regulation applicable to it or to the
Collateral or the use, occupancy or operation of the Collateral (including, without limitation, the
failure to pay any taxes, fees or other charges), (iv) any Damages whatsoever by reason of any
alleged action, obligation or undertaking of Bank relating in any way to or any matter
contemplated by the Loan Documents, or (v) any claim for brokerage fees or such other commissions
relating to the Collateral or the Secured Obligations. Nothing contained herein shall require
Debtor to indemnify Bank for any Damages resulting from Bank’s gross negligence or its willful
misconduct, and such indemnity shall be effective only to the extent of any Damages that may be
sustained by Bank in excess of any net proceeds received by it from any insurance of Debtor (other
than self-insurance) with respect to such Damages. The indemnity provided for herein shall survive
payment of the Secured Obligations and shall extend to the officers, directors, employees and duly
authorized agents of Bank. In the event Bank incurs any Damages arising out of or in any way
relating to the transaction contemplated by the Loan Documents (including any of the matters
referred to in this section), the amounts of such Damages shall be added to the Secured
Obligations, shall bear interest, to the extent permitted by law, at the interest rate borne by
the Secured Obligations from the date incurred until paid and shall be payable on demand.



MISCELLANEOUS. (i) Amendments and Waivers. No waiver, amendment or modification of any provision
of this Security Agreement shall be valid unless in writing and signed by Debtor and an officer of
Bank. No waiver by Bank of any Default shall operate as a waiver of any other Default or of the
same Default on a future occasion. (ii) Assignment. All rights of Bank hereunder are freely
assignable, in whole or in part, and shall inure to the benefit of and be enforceable by Bank, its
successors, assigns and affiliates. Debtor shall not assign its rights and interest hereunder
without the prior written consent of Bank, and any attempt by Debtor to assign without Bank’s
prior written consent is null and void. Any assignment shall not release Debtor from the Secured
Obligations. This Security Agreement shall be binding upon Debtor, and the heirs, personal
representatives, successors, and assigns of Debtor. (iii) Organization; Powers. Debtor represents
that Debtor (a) is (1) an adult individual and is sui juris, or (2) a corporation, general
partnership, limited partnership, limited liability company or other legal entity, duly organized,
validly existing and in good standing under the laws of its state of organization, and is
authorized to do business in each other jurisdiction wherein its ownership of property or conduct
of business legally requires such organization; (b) has the power and authority to own its
properties and assets and to carry on its business as now being conducted and as now contemplated;
and (c) has the power and authority to execute, deliver and perform, and by all necessary action
has authorized the execution, delivery and performance of, all of its obligations under this
Security Agreement and any other Loan Document to which it is a party. (iv) Applicable Law;
Conflict Between Documents. This Security Agreement shall be governed by and interpreted in
accordance with federal law and, except as preempted by federal law, the laws of the state named in
Bank’s address on the first page hereof without regard to that state’s conflict of laws
principles, except to the extent that the UCC requires the application of the law of a different
jurisdiction. If any terms of this Security Agreement conflict with the terms of any commitment
letter or loan proposal, the terms of this Security Agreement shall control. (v) Jurisdiction.
Debtor irrevocably agrees to non-exclusive personal jurisdiction in the state named in the Bank’s
address on the first page hereof. (vi) Severability. If any provision of this Security Agreement
shall be prohibited




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by or invalid under applicable law, such provision shall be ineffective but only to the
extent of such prohibition or invalidity, without invalidating the remainder of such provision or
the remaining provisions of this Security Agreement. (vii) Payments. All payments shall be mailed
to Commercial Loan Services, P.O. Box 740502, Atlanta, GA 30374-0502; or such other address as
provided by Bank in writing. (viii) Notices. Any notices to Debtor shall be sufficiently given, if
in writing and mailed or delivered to the address of Debtor shown above or such other address as
provided hereunder; and to Bank, if in writing and mailed or delivered to Wachovia Bank, National
Association, Mail Code VA7628, P.O. Box 13327 Roanoke, VA 24040 or Wachovia Bank, National
Association, Mail Code VA7628, 7711 Plantation Road, Roanoke, VA 24019 or such other address as
Bank may specify in writing from time to time. Notices to Bank must include the mail code. In the
event that Debtor changes Debtor’s mailing address at any time prior to the date the Secured
Obligations are paid in full, Debtor agrees to promptly give written notice of said change of
address by registered or certified mail, return receipt requested, all charges prepaid. (ix)
Captions. The captions contained herein are inserted for convenience only and shall not affect the
meaning or interpretation of this Security Agreement or any provision hereof. The use of the
plural shall also mean the singular, and vice versa. (x) Joint and Several Liability. If more than
one party has signed this Security Agreement, such parties are jointly and severally obligated
hereunder. (xi) Binding Contract. Debtor by execution and Bank by acceptance of this Security
Agreement, agree that each party is bound by all terms and provisions of this Security Agreement.
(xii) LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING
BANK BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY
CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH
THIS SECURITY AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG
THEM OR THE SECURED OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY
HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR
(2) PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM
TO PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH
ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION,
JUDICIALLY OR OTHERWISE. (xiii) Telephone Communication Monitoring. Debtor agrees that Debtor’s
telephone communications with Bank may be monitored and/or recorded to improve customer service
and security. (xiv) Final Agreement. This Security Agreement and the other Loan Documents represent
the final agreement between the parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent agreements of the parties. There are no unwritten agreements between
the parties. (xv) Amendment and Restatement. This Security Agreement amends and restates, in its
entirety, the Security Agreement executed by Debtor in favor of Bank, dated on or about April
29, 2009.



DEFINITIONS.
Loan Documents. The term “Loan Documents” refers to all documents, including this
Security Agreement and the L/C Agreement, whether now or hereafter existing, executed in
connection with or related to the Secured Obligations, and may include, without limitation and
whether executed by Debtor or others, commitment letters that survive closing, loan agreements,
promissory notes, guaranty agreements, deposit or other similar agreements, other security
agreements, letters of credit and applications for letters of credit, security instruments,
financing statements, mortgage instruments, any renewals or modifications, whenever any of the
foregoing are executed, but does not include swap agreements (as defined in 11 U.S.C. § 101, as in
effect from time to time). UCC. “UCC” means the Uniform Commercial Code as presently and hereafter
enacted in the Jurisdiction. Terms defined in the UCC. Any term used in this Security Agreement
and in any financing statement filed in connection herewith which is defined in the UCC and not
otherwise defined in this Security Agreement or any other Loan Document has the meaning given to
the term in the UCC.



ARBITRATION. Upon demand of any party hereto, whether made before or after institution of any
judicial proceeding, any claim or controversy arising out of or relating to the Loan Documents
between parties hereto (a “Dispute”) shall be resolved by binding arbitration conducted under and
governed by the Commercial Financial Disputes Arbitration Rules (the “Arbitration Rules”) of the
American Arbitration Association (the “AAA”) and the Federal Arbitration Act. Disputes may
include, without limitation, tort




Page 7









 





claims, counterclaims, a dispute as to whether a matter is subject to arbitration, or claims
arising from documents executed in the future, but shall specifically exclude claims brought as or
converted to class actions. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding the foregoing, this arbitration provision does not apply to disputes
under or related to swap agreements. Special Rules. All arbitration hearings shall be conducted in
the city named in the address of Bank first stated above. A hearing shall begin within 90 days of
demand for arbitration and all hearings shall conclude within 120 days of demand for arbitration.
These time limitations may not be extended unless a party shows cause for extension and then for
no more than a total of 60 days. The expedited procedures set forth in Rule 51 et seq. of
the Arbitration Rules shall be applicable to claims of less than $1,000,000.00. Arbitrators shall
be licensed attorneys selected from the Commercial Financial Dispute Arbitration Panel of the AAA.
The parties do not waive applicable Federal or state substantive law except as provided herein.
Preservation and Limitation of Remedies. Notwithstanding the preceding binding arbitration
provisions, the parties agree to preserve, without-diminution, certain remedies that any party may
exercise before or after an arbitration proceeding is brought. The parties shall have the right to
proceed in any court of proper jurisdiction or by self-help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any real or personal property or
other security by exercising a power of sale or under applicable law by judicial foreclosure
including a proceeding to confirm the sale; (ii) all rights of self-help including peaceful
occupation of real property and collection of rents, set-off, and peaceful possession of personal
property; (iii) obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and filing an involuntary
bankruptcy proceeding; and (iv) when applicable, a judgment by confession of judgment. Any claim or
controversy with regard to any party’s entitlement to such remedies is a Dispute. Waiver of Jury
Trial. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY
WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL WITH REGARD TO A DISPUTE AS TO WHICH BINDING
ARBITRATION HAS BEEN DEMANDED.




[Signature Page to Follow]




Page 8









 





     IN WITNESS WHEREOF, Debtor, on the day and year first written above, has caused this
Security Agreement to be duly executed under seal.



	 	 	 	 	 	 	 

	 	 	Debtor
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ H. Wayne Huzenga
 

	 	(SEAL)
	 

	 	 	 	H. Wayne Huzenga	 	 
	 
	 	 	 	 	 	 
	 	 	Bank
	 
	 	 	 	 	 	 
	 	 	Wachovia Bank, National Association
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/
Cavan Harris 	 	(SEAL)
	 

	 	 	 	 

Cavan Harris, Senior Vice President
	 	 







Page 9











 






UNCONDITIONAL GUARANTY

 [HUIZENGA]




June      , 2008




Swisher International, Inc.

4725 Piedmont Row Drive, Suite 400

Charlotte, North Carolina 29210

(Hereinafter referred to as “Borrower”)




H. Wayne Huizenga

450 East Las Olas Boulevard

Suite 1500

Fort Lauderdale, Florida 33301

(Hereinafter referred to as “Guarantor”)




Wachovia Bank, National Association

301 South Tryon Street, 28th Floor

Charlotte, North Carolina 28288-0334

(Hereinafter referred to as “Bank”)



To induce Bank to make, extend or renew loans, advances, credit, or other financial accommodations
to or for the benefit of Borrower, which are and will be to the direct interest and advantage of
the Guarantor, and in consideration of loans, advances, credit, or other financial accommodations
made, extended or renewed to or for the benefit of Borrower, which are and will be to the direct
interest and advantage of the Guarantor, Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to Bank and its successors, assigns and affiliates the timely payment
and performance of all liabilities and obligations of Borrower to Bank and its affiliates, under
that certain amended and restated revolving note (the “Revolving Note”) dated
as of March 21, 2008 made by Borrower to the order of Bank, in the original principal amount of
$10,000,000.00, as the same shall be amended, modified, increased or extended from time to time
(the “Note”), that certain Credit Agreement made between the Borrower and Bank, dated as of
November 14, 2005, as amended by that certain First Amendment to Credit Agreement dated as of April
26, 2006, that certain Second Amendment and Waiver to Credit Agreement dated as of September 8,
2006, that certain Third Amendment and Waiver to Credit Agreement (the “Third Amendment”)
dated as of March 21, 2008 and that Fourth Amendment and Waiver to Credit Agreement (the
“Fourth Amendment”) dated as of June _, 2008, providing for the availability of a
$10,000,000 revolving credit facility to the Borrower upon the terms and conditions set forth
therein (as further amended, modified or supplemented from time to time, the “Credit
Agreement”), however and whenever incurred or evidenced, whether primary, secondary, direct,
indirect, absolute, contingent, due or to become due, now existing or hereafter contracted or
acquired, and all modifications, extensions and renewals thereof, (collectively, the “Guaranteed
Obligations”). Any term used herein but not defined shall have the meaning as set forth in the
Credit Agreement.




Guarantor further covenants and agrees:



GUARANTOR’S LIABILITY. This Guaranty is a continuing and unconditional guaranty of payment and
performance and not of collection. Notwithstanding anything contained herein, Guarantor’s
liability hereunder shall not exceed $5,000,000 plus any unpaid interest accrued on such amount.
This Guaranty does not impose any obligation on Bank to extend or continue to extend credit or
otherwise deal with Borrower at any subsequent time. This Guaranty shall




 









 




continue to be effective or be reinstated, as the case may be, if at any time any payment of the
Guaranteed Obligations is rescinded, avoided or for any other reason must be returned by Bank, and
the returned payment shall remain payable as part of the Guaranteed Obligations, all as though such
payment had not been made. Except to the extent the provisions of this Guaranty give Bank
additional rights, this Guaranty shall not be deemed to supersede or replace any other guaranties
given to Bank by Guarantor; and the obligations guaranteed hereby shall be in addition to any other
obligations guaranteed by Guarantor pursuant to any other agreement of guaranty given to Bank and
other guaranties of the Guaranteed Obligations.



TERMINATION OF GUARANTY. Guarantor may terminate this Guaranty (i) upon the determination by Bank
and delivery of written confirmation of such determination to Borrower following the receipt of
the applicable financial statements and the accompanying certificates and other required
deliverables therewith pursuant to Section 5.1 of the Credit Agreement, that (x) the aggregate
Consolidated EBITDA for the Fiscal Year ending December 31, 2008 and (y) the aggregate
Consolidated EBITDA for the four fiscal quarters ending as of March 31, 2009, each are greater
than or equal to $4,000,000 (a “Performance Termination”) or (ii) by written notice,
delivered personally to or received by certified or registered United States Mail by an authorized
officer of Bank at the address for notices provided herein. Such termination shall be effective
only with respect to Guaranteed Obligations arising more than 15 days after the date such written
notice is received by said Bank officer. Guarantor may not terminate this Guaranty as to
Guaranteed Obligations (including any subsequent extensions, modifications or compromises of the
Guaranteed Obligations) then existing, or Guaranteed Obligations arising subsequent to receipt by
Bank of said notice if such Guaranteed Obligations are a result of Bank’s obligation to make
advances pursuant to a commitment, or are based on Borrower’s obligations to make payments
pursuant to any related swap agreement (as defined in 11 U.S.C. § 101, as in effect from time to
time), entered into prior to expiration of the 15 day notice period, or are a result of advances
which are necessary for Bank to protect its collateral or otherwise preserve its interests.
Termination of this Guaranty by any single Guarantor will not affect the existing and continuing
obligations of any other Guarantor hereunder.



CONSENT TO MODIFICATIONS. Guarantor consents and agrees that, with prior written notice to
Guarantor, Bank (and, with respect to swap obligations, its affiliates) may from time to time, in
its sole discretion, without affecting, impairing, lessening or releasing the obligations of
Guarantor hereunder: (a) extend or modify the time, manner, place or terms of payment or
performance and/or otherwise change or modify the credit terms of the Guaranteed Obligations; (b)
increase, renew, or enter into a novation of the Guaranteed Obligations; (c) waive or consent to
the departure from terms of the Guaranteed Obligations; (d) permit any change in the business or
other dealings and relations of Borrower or any other guarantor with Bank; (e) proceed against,
exchange, release, realize upon, or otherwise deal with in any manner any collateral that is or
may be held by Bank in connection with the Guaranteed Obligations or any liabilities or
obligations of Guarantor; and (f) proceed against, settle, release, or compromise with Borrower,
any insurance carrier, or any other person or entity liable as to any part of the Guaranteed
Obligations, and/or subordinate the payment of any part of the Guaranteed Obligations to the
payment of any other obligations, which may at any time be due or owing to Bank; all in such
manner and upon such terms as Bank may deem appropriate, and without consent from Guarantor. No
invalidity, irregularity, discharge or unenforceability of, or action or omission by Bank relating
to any part of the Guaranteed Obligations or any security therefor shall affect or impair this
Guaranty.



WAIVERS AND ACKNOWLEDGMENTS. Guarantor waives and releases the following rights, demands, and
defenses Guarantor may have with respect to Bank (and, with respect to swap obligations, its
affiliates) and collection of the Guaranteed Obligations: (a) promptness and diligence in
collection of any of the Guaranteed Obligations from Borrower or any other person liable thereon,
and in foreclosure of any security interest and sale of any property serving as




2









 







collateral for the Guaranteed Obligations; (b) any law or statute that requires that Bank
(and, with respect to swap obligations, its affiliates) make demand upon, assert claims against,
or collect from Borrower or other persons or entities, foreclose any security interest, sell
collateral, exhaust any remedies, or take any other action against Borrower or other persons or
entities prior to making demand upon, collecting from or taking action against Guarantor with
respect to the Guaranteed Obligations, including any such rights Guarantor might otherwise have
had under Va. Code §§ 49-25 and 49-26, et seq., N.C.G.S.  26-7, et seq., Tenn.
Code Ann. § 47-12-101, O.C.G.A. § 10-7-24, Mississippi Code Ann. Section 87-5-1, and any successor
statute and any other applicable law; (c) any law or statute that requires that Borrower or any
other person be joined in, notified of or made part of any action against Guarantor; (d) that Bank
or its affiliates preserve, insure or perfect any security interest in collateral or sell or
dispose of collateral in a particular manner or at a particular time, provided that Bank’s
obligation to dispose of Collateral in a commercially reasonable manner is not waived hereby; (e)
notice of any new transactions or other relationships between Bank, Borrower and/or any guarantor,
and of changes in the financial condition of, ownership of, or business structure of Borrower or
any other guarantor; (f) presentment, protest, notice of dishonor, notice of default, demand for
payment, notice of intention to accelerate maturity, notice of acceleration of maturity, notice of
sale, and all other notices of any kind whatsoever to which Guarantor may be entitled, except as
otherwise provided in the Loan Documents; (g) the right to assert against Bank or its affiliates
any defense (legal or equitable), set-off, counterclaim, or claim that Guarantor may have at any
time against Borrower or any other party liable to Bank or its affiliates; (h) all defenses
relating to an invalidity, insufficiency, unenforceability, enforcement, release or impairment of
Bank or its affiliates’ lien on any collateral, of the Loan Documents, or of any other guaranties
held by Bank; (i) any right to which Guarantor is or may become entitled to be subrogated to Bank
or its affiliates’ rights against Borrower or to seek contribution, reimbursement,
indemnification, payment or the like, or participation in any claim, right or remedy of Bank or
its affiliates against Borrower or any security which Bank or its affiliates now has or hereafter
acquires, until such time as the Guaranteed Obligations have been fully satisfied beyond the
expiration of any applicable preference period; (j) any claim or defense that acceleration of
maturity of the Guaranteed Obligations is stayed against Guarantor because of the stay of
assertion or of acceleration of claims against any other person or entity for any reason including
the bankruptcy or insolvency of that person or entity; and (k) the right to marshalling of
Borrower’s assets or the benefit of any exemption claimed by Guarantor. Guarantor acknowledges and
represents that Guarantor has relied upon Guarantor’s own due diligence in making an independent
appraisal of Borrower, Borrower’s business affairs and financial condition, and any collateral;
Guarantor will continue to be responsible for making an independent appraisal of such matters; and
Guarantor has not relied upon Bank or its affiliates for information regarding Borrower or any
collateral.



FINANCIAL CONDITION. Guarantor, in all material respects, warrants, represents and covenants to
Bank and its affiliates that on and after the date hereof: (a) the fair saleable value of
Guarantor’s assets exceeds its liabilities, Guarantor is meeting its current liabilities as they
mature, and Guarantor is and shall remain solvent; (b) all financial statements of Guarantor
furnished to Bank are correct and accurately reflect the financial condition of Guarantor as of the
respective dates thereof; (c) since the date of such financial statements, there has not occurred a
material adverse change in the financial condition of Guarantor; and (d) there are not now pending
any court or administrative proceedings or undischarged judgments against Guarantor, no federal or
state tax liens have been filed or threatened against Guarantor, and Guarantor is not in default or
claimed default under any material agreement.



INTEREST AND APPLICATION OF PAYMENTS. Regardless of any other provision of this Guaranty or other
Loan Documents, if for any reason the effective interest on any of the Guaranteed Obligations
should exceed the maximum lawful interest, the effective interest shall be deemed reduced to and
shall be such maximum lawful interest, and any sums of interest which have been collected in
excess of such maximum lawful interest shall be applied as a credit




3









 







against the unpaid principal balance of the Guaranteed Obligations. Monies received from any
source by Bank or its affiliates for application toward payment of the Guaranteed Obligations may
be applied to such Guaranteed Obligations in any manner or order deemed appropriate by Bank and
its affiliates.



DEFAULT. If any of the following events occur, a default (“Default”) under this Guaranty shall
exist: (a) failure of timely payment or performance of the Guaranteed Obligations or a default
under any Loan Document after applicable notice and cure periods, if any; (b) a breach of any
agreement or representation contained or referred to in the Guaranty, or any of the Loan Documents;
(c) one hundred eighty (180) calendar days after the death of Guarantor unless Bank approves a
substitute guarantor; (d) the assignment for the benefit of creditors of, or the commencement of
any insolvency or bankruptcy proceeding by or against Guarantor, provided such event is not cured
or set aside within sixty (60) days of its occurrence; (e) Bank determines in good faith, in its
sole discretion, that the prospects for payment or performance of the Guaranteed Obligations are
materially impaired or a material adverse change has occurred in the business or prospects of
Guarantor, financial or otherwise; and/or (f) a sale or transfer of Guarantor’s ownership interest
in the Borrower which results in Guarantor or his Affiliate(s) no longer controlling Borrower.



If a Default occurs, the Guaranteed Obligations shall be due immediately and payable without
notice, other than Guaranteed Obligations under any swap agreements (as defined in 11 U.S.C. §
101, as in effect from time to time) with Bank or its affiliates, which shall be due in accordance
with and governed by the default and termination provisions of said swap agreements, and, Bank and
its affiliates may exercise any rights and remedies as provided in this Guaranty and other Loan
Documents, or as provided at law or equity. Guarantor shall pay interest on the Guaranteed
Obligations from such Default at the highest rate of interest charged on any of the Guaranteed
Obligations.



ATTORNEYS’ FEES AND OTHER COSTS OF COLLECTION. Guarantor shall pay all of Bank’s and its
affiliates’ reasonable expenses incurred to enforce or collect any of the Guaranteed Obligations,
including, without limitation, reasonable arbitration, paralegals’, attorneys’ and experts’ fees
and expenses, whether incurred without the commencement of a suit, in any suit, arbitration, or
administrative proceeding, or in any appellate or bankruptcy proceeding; provided that reasonable
attorneys fees shall be based on actual hours expended at normal hourly rates.



SUBORDINATION OF OTHER DEBTS. Guarantor agrees: (a) to subordinate the obligations now or
hereafter owed by Borrower to Guarantor (“Subordinated Debt”) to any and all obligations of
Borrower to Bank or its affiliates now or hereafter existing while this Guaranty is in effect,
provided however that Guarantor may receive regularly scheduled principal and interest payments on
the Subordinated Debt so long as (i) all sums then due and payable by Borrower to Bank and its
affiliates have been paid in full on or prior to such date, and (ii) no event or condition which
constitutes or which with notice or the lapse of time would constitute an event of default with
respect to the Guaranteed Obligations shall be continuing on or as of the payment date; (b)
Guarantor will either place a legend indicating such subordination on every note, ledger page or
other document evidencing any part of the Subordinated Debt or deliver such documents to Bank; and
(c) except as permitted by this paragraph, Guarantor will not request or accept payment of or any
security for any part of the Subordinated Debt, and any proceeds of the Subordinated Debt paid to
Guarantor, through error or otherwise, shall immediately be forwarded to Bank by Guarantor,
properly endorsed to the order of Bank, to apply to the Guaranteed Obligations.



MISCELLANEOUS. Assignment. This Guaranty and other Loan Documents shall inure to the benefit of
and be binding upon the parties and their respective heirs, legal representatives,





4









 







successors and assigns. Bank’s interests in and rights under this Guaranty and other Loan Documents
are freely assignable, in whole or in part, by Bank, Any assignment shall not release Guarantor
from the Guaranteed Obligations. Organization; Powers. Guarantor (i) is an adult individual and is
sui juris, (ii) has the power and authority to own its properties and assets and to carry
on its business as now being conducted and as now contemplated; and (iii) has the power and
authority to execute, deliver and perform, and by all necessary action has authorized the
execution, delivery and performance of, all of its obligations under this Guaranty and any other
Loan Document to which it is a party. Applicable Law; Conflict Between Documents. This Guaranty
shall be governed by and construed under the laws of the state named in Bank’s address shown above
without regard to that state’s conflict of laws principles. If the terms of this Guaranty should
conflict with the terms of any commitment letter that survives closing, the terms of this Guaranty
shall control. Jurisdiction. Guarantor irrevocably agrees to non-exclusive personal jurisdiction in
the state named in Bank’s address shown above. Severability. If any provision of this Guaranty or
of the other Loan Documents shall be prohibited or invalid under applicable law, such provision
shall be ineffective but only to the extent of such prohibition or Invalidity, without invalidating
the remainder of such provision or the remaining provisions of this Guaranty or other Loan
Documents. Notices. Any notices to Guarantor shall be sufficiently given if in writing and mailed
or delivered to Guarantor’s address shown above or such other address as provided hereunder, and to
Bank, if in writing and mailed or delivered to Wachovia Bank, National Association, Mail Code
VA7628, P.O. Box 13327, Roanoke, VA 24040 or Wachovia Bank, National Association, Mail Code VA7628,
10 South Jefferson Street, Roanoke, VA 24011 or such other address as Bank may specify in writing
from time to time. Notices to Bank must include the mail code. In the event that Guarantor changes
Guarantor’s address at any time prior to the date the Guaranteed Obligations are paid in full,
Guarantor agrees to promptly give written notice of said change of address to Bank by registered or
certified mail, return receipt requested, all charges prepaid. Plural; Captions. All references in
the Loan Documents to borrower, guarantor, person, document or other nouns of reference mean both
the singular and plural form, as the case may be, and the term “person” shall mean any individual
person or entity. The captions contained in the Loan Documents are inserted for convenience only
and shall not affect the meaning or interpretation of the Loan Documents. Binding Contract.
Guarantor by execution of and Bank by acceptance of this Guaranty agree that each party is bound to
all terms and provisions of this Guaranty. Amendments, Waivers and Remedies. No waivers, amendments
or modifications of this Guaranty and other Loan Documents shall be valid unless in writing and
signed by an officer of Bank. No waiver by Bank or its affiliates of any Default shall operate as a
waiver of any other Default or the same Default on a future occasion. Neither the failure nor any
delay on the part of Bank or its affiliates in exercising any right, power, or privilege granted
pursuant to this Guaranty and other Loan Documents shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise or the exercise of any
other right, power or privilege. All remedies available to Bank or its affiliates with respect to
this Guaranty and other Loan Documents and remedies available at law or in equity shall be
cumulative and may be pursued concurrently or successively. Loan Documents. The term “Loan

Documents” refers to all documents executed in connection with or related to the Guaranteed
Obligations and may include, without limitation, the Note, the Credit Agreement, security
agreements, instruments, financing statements, letters of credit and any amendments or supplements
(excluding swap agreements as defined in 11 U.S.C. § 101, as in effect from time to time).
LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING BANK BY
ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR
CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS
AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE
OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE
LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL




5









 




OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY
EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY
ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME
IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. FINAL AGREEMENT. This Agreement
and the other Loan Documents represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties.
There are no unwritten oral agreements between the parties.



NEGATIVE COVENANTS. Guarantor agrees that from the date hereof and until final payment in full of
the Guaranteed Obligations, unless Bank shall otherwise consent in writing, Guarantor will not:
Default on Other Contracts or Obligations. Default (beyond any applicable cure and grace periods,
if any) on any material contract or contracts with or obligation when due to a third party or
default in the performance of any obligation to a third party incurred for money borrowed which
would result in the acceleration of debt owed in excess of $5,000,000.00 in the aggregate.
Government Intervention. Permit the assertion or making of any seizure, vesting or intervention by
or under authority of any governmental entity, as a result of which the management of Guarantor is
displaced of its authority in the conduct of its respective business or such business is materially
curtailed or materially impaired. Judgment Entered. Permit the entry of any final monetary
judgment(s) which, in the aggregate exceed $25,000,000.00 when taking into account Guarantor and
Huizenga Investments Limited Partnership, a Nevada limited partnership.



PERSONAL FINANCIAL STATEMENTS. Huizenga Investments and Guarantor shall deliver to Bank, within
120 days after the end of each calendar year, combined financial statements including, a balance
sheet, with supporting schedules; all in reasonable detail and prepared on a consistent basis with
prior financial statements furnished to Bank by Huizenga Investments and Guarantor. Such
statements shall be certified as to their correctness by Guarantor.



ARBITRATION. Upon demand of any party hereto, whether made before or after institution of any
judicial proceeding, any claim or controversy arising out of or relating to the Loan Documents
between parties hereto (a “Dispute”) shall be resolved by binding arbitration conducted under and
governed by the Commercial Financial Disputes Arbitration Rules (the “Arbitration Rules”) of the
American Arbitration Association (the “AAA”) and the Federal Arbitration Act. Disputes may include,
without limitation, tort claims, counterclaims, a dispute as to whether a matter is subject to
arbitration, claims brought as class actions, or claims arising from documents executed in the
future. A judgment upon the award may be entered in any court having jurisdiction. Notwithstanding
the foregoing, this arbitration provision does not apply to disputes under or related to swap
agreements. Special Rules. All arbitration hearings shall be conducted in the city named in the
address of Bank first stated above. A hearing shall begin within 90 days of demand for arbitration
and all hearings shall conclude within 120 days of demand for arbitration. These time limitations
may not be extended unless a party shows cause for extension and then for no more than a total of
60 days. The expedited procedures set forth in Rule 51 et seq. of the Arbitration Rules
shall be applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed attorneys
selected from the Commercial Financial Dispute Arbitration Panel of the AAA. The parties do not
waive applicable Federal or state substantive law except as provided herein. Preservation and
Limitation of Remedies. Notwithstanding the preceding binding arbitration provisions, the parties
agree to preserve, without diminution, certain remedies that any party may exercise before or after
an arbitration proceeding is brought. The parties shall have the right to proceed in any court of
proper jurisdiction or by self-help to exercise or prosecute the following remedies, as applicable:
(i) all rights to foreclose against any





6









 







real or personal property or other security by exercising a power of sale or under applicable law
by judicial foreclosure including a proceeding to confirm the sale; (ii) all rights of self-help
including peaceful occupation of real property and collection of rents, set-off, and peaceful
possession of personal property; (iii) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment of receiver and filing an
involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by confession of judgment.
Any claim or controversy with regard to any party’s entitlement to such remedies is a Dispute.
Waiver of Jury Trial. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE
IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL WITH REGARD TO A DISPUTE AS TO WHICH
BINDING ARBITRATION HAS BEEN DEMANDED.




7









 





     IN WITNESS WHEREOF, Guarantor, on the day and year first written above, has caused this
Unconditional Guaranty to be executed under seal.



Signed, sealed and delivered
in the presence of:




	 	 	 	 	 

	/s/ Cris V Branden
 

Print Name: Cris V Branden

	 	/s/ H. Wayne Huizenga
 

H. Wayne Huizenga
	 	 
	 
	 	 	 	 
	/s/ Randy A. Aube
 

Print Name: Randy A. Aube

	 	 	 	 






	 	 	 	 	 

	STATE OF FLORIDA

	 	 )
	 	 
	 

	 	 ) SS:	 	 
	COUNTY OF BROWARD

	 	 )	 	 





The foregoing instrument was acknowledged before me this 23rd day of June, 2008, by H.
Wayne Huizenga. He is personally known to me or has produced a driver’s license as
identification and did not take an oath.




	 	 	 	 	 

	

	 	/s/ Carmen Kramer
 

Print or Stamp Name: Carmen Kramer

Notary Public, State of Florida at Large

Commission No.: DD628227

My Commission Expires: 01/09/2011
	 	 



















 





Exhibit C-1




FORM OF UNCONDITIONAL GUARANTY

[HUIZENGA]



August ___, 2006



Swisher International, Inc.

6849 Fairview Road

Charlotte, North Carolina 28210

(Hereinafter referred to as “Borrower”)




H. Wayne Huizenga

450 East Las Olas Boulevard

Suite 1500

Fort Lauderdale, Florida 33301

(Hereinafter referred to as “Guarantor”)




Wachovia Bank, National Association 

301 South Tryon Street, 28th Floor

 Charlotte, North Carolina 28288-0334

 (Hereinafter referred to as“Bank”)



To induce Bank to make, extend or renew loans, advances, credit, or other financial accommodations
to or for the benefit of Borrower, which are and will be to the direct interest and advantage of
the Guarantor, and in consideration of loans, advances, credit, or other financial accommodations
made, extended or renewed to or for the benefit of Borrower, which are and will be to the direct
interest and advantage of the Guarantor, Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to Bank and its successors, assigns and affiliates the timely payment
and performance of all liabilities and obligations of Borrower to Bank and its affiliates, under
that certain Revolving Note dated of even date herewith made by Borrower to the order of Bank, in
the original principal amount of $15,000,000.00, as the same shall be amended, modified, increased
or extended from time to time (the “Note”), that certain Credit Agreement dated of even date
herewith made between the Borrower and Bank, as the same shall be amended or modified from time to
time (the “Credit Agreement”), and the Loan Documents, as defined below, and all obligations of
Borrower to Bank or any of its affiliates under any related swap agreement (as defined in 11
U.S.C. § 101, as in effect from time to time), however and whenever incurred or evidenced, whether
primary, secondary, direct, indirect, absolute, contingent, due or to become due, now existing or
hereafter contracted or acquired, and all modifications, extensions and renewals thereof,
(collectively, the “Guaranteed Obligations”). Any term used herein but not defined shall have the
meaning as set forth in the Credit Agreement.



Guarantor further covenants and agrees:



GUARANTOR’S LIABILITY. This Guaranty is a continuing and unconditional guaranty of payment and
performance and not of collection. The parties to this Guaranty are jointly and severally obligated
hereunder, provided, however, that notwithstanding anything in this Guaranty
to the contrary, Guarantor’s liability hereunder shall not exceed 50% of the outstanding Guaranteed
Obligations at such time. This Guaranty does not impose any obligation on Bank to extend or
continue to extend credit or otherwise deal with Borrower at any subsequent time. This Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any time




 









 




any payment of the Guaranteed Obligations is rescinded, avoided or for any other reason must be
returned by Bank, and the returned payment shall remain payable as part of the Guaranteed
Obligations, all as though such payment had not been made. Except to the extent the provisions of
this Guaranty give Bank additional rights, this Guaranty shall not be deemed to supersede or
replace any other guaranties given to Bank by Guarantor; and the obligations guaranteed hereby
shall be in addition to any other obligations guaranteed by Guarantor pursuant to any other
agreement of guaranty given to Bank and other guaranties of the Guaranteed Obligations.



TERMINATION OF GUARANTY. Guarantor may terminate this Guaranty only by written notice, delivered
personally to or received by certified or registered United States Mail by an authorized officer
of Bank at the address for notices provided herein. Such termination shall be effective only with
respect to Guaranteed Obligations arising more than 15 days after the date such written notice is
received by said Bank officer. Guarantor may not terminate this Guaranty as to Guaranteed
Obligations (including any subsequent extensions, modifications or compromises of the Guaranteed
Obligations) then existing, or Guaranteed Obligations arising subsequent to receipt by Bank of
said notice if such Guaranteed Obligations are a result of Bank’s obligation to make advances
pursuant to a commitment, or are based on Borrower’s obligations to make payments pursuant to any
related swap agreement (as defined in 11 U.S.C. § 101, as in effect from time to time), entered
into prior to expiration of the 15 day notice period, or are a result of advances which are
necessary for Bank to protect its collateral or otherwise preserve its interests. Termination of
this Guaranty by any single Guarantor will not affect the existing and continuing obligations of
any other Guarantor hereunder.




CONSENT TO MODIFICATIONS. Guarantor consents and agrees that, with prior written notice to
Guarantor, Bank (and, with respect to swap obligations, its affiliates) may from time to time, in
its sole discretion, without affecting, impairing, lessening or releasing the obligations of
Guarantor hereunder: (a) extend or modify the time, manner, place or terms of payment or
performance and/or otherwise change or modify the credit terms of the Guaranteed Obligations; (b)
increase, renew, or enter into a novation of the Guaranteed Obligations; (c) waive or consent to
the departure from terms of the Guaranteed Obligations; (d) permit any change in the business or
other dealings and relations of Borrower or any other guarantor with Bank; (e) proceed against,
exchange, release, realize upon, or otherwise deal with in any manner any collateral that is or
may be held by Bank in connection with the Guaranteed Obligations or any liabilities or
obligations of Guarantor; and (f) proceed against, settle, release, or compromise with Borrower,
any insurance carrier, or any other person or entity liable as to any part of the Guaranteed
Obligations, and/or subordinate the payment of any part of the Guaranteed Obligations to the
payment of any other obligations, which may at any time be due or owing to Bank; all in such
manner and upon such terms as Bank may deem appropriate, and without consent from Guarantor. No
invalidity, irregularity, discharge or unenforceability of, or action or omission by Bank relating
to any part of the Guaranteed Obligations or any security therefor shall affect or impair this
Guaranty.




WAIVERS AND ACKNOWLEDGMENTS. Guarantor waives and releases the following rights, demands, and
defenses Guarantor may have with respect to Bank (and, with respect to swap obligations, its
affiliates) and collection of the Guaranteed Obligations: (a) promptness and diligence in
collection of any of the Guaranteed Obligations from Borrower or any other person liable thereon,
and in foreclosure of any security interest and sale of any property serving as collateral for the
Guaranteed Obligations; (b) any law or statute that requires that Bank (and, with respect to swap
obligations, its affiliates) make demand upon, assert claims against, or collect from Borrower or
other persons or entities, foreclose any security interest, sell collateral, exhaust any remedies,
or take any other action against Borrower or other persons or entities prior to making demand upon,
collecting from or taking action against Guarantor with respect to the Guaranteed Obligations,
including any such rights Guarantor might otherwise have had under Va. Code §§ 49-25 and 49-26,
et seq., N.C.G.S. §§ 26-7, et seq., Tenn. Code Ann. § 47-12-101,




2









 




O.C.G.A. § 10-7-24, Mississippi Code Ann. Section 87-5-1, and any successor statute and any other
applicable law; (c) any law or statute that requires that Borrower or any other person be joined
in, notified of or made part of any action against Guarantor; (d) that Bank or its affiliates
preserve, insure or perfect any security interest in collateral or sell or dispose of collateral
in a particular manner or at a particular time, provided that Bank’s obligation to dispose of
Collateral in a commercially reasonable manner is not waived hereby; (e) notice of any new
transactions or other relationships between Bank, Borrower and/or any guarantor, and of changes in
the financial condition of, ownership of, or business structure of Borrower or any other
guarantor; (f) presentment, protest, notice of dishonor, notice of default, demand for payment,
notice of intention to accelerate maturity, notice of acceleration of maturity, notice of sale,
and all other notices of any kind whatsoever to which Guarantor may be entitled, except as
otherwise provided in the Loan Documents; (g) the right to assert against Bank or its affiliates
any defense (legal or equitable), set-off, counterclaim, or claim that Guarantor may have at any
time against Borrower or any other party liable to Bank or its affiliates; (h) all defenses
relating to an invalidity, insufficiency, unenforceability, enforcement, release or impairment of
Bank or its affiliates’ lien on any collateral, of the Loan Documents, or of any other guaranties
held by Bank; (i) any right to which Guarantor is or may become entitled to be subrogated to Bank
or its affiliates’ rights against Borrower or to seek contribution, reimbursement,
indemnification, payment or the like, or participation in any claim, right or remedy of Bank or
its affiliates against Borrower or any security which Bank or its affiliates now has or hereafter
acquires, until such time as the Guaranteed Obligations have been fully satisfied beyond the
expiration of any applicable preference period; (j) any claim or defense that acceleration of
maturity of the Guaranteed Obligations is stayed against Guarantor because of the stay of
assertion or of acceleration of claims against any other person or entity for any reason including
the bankruptcy or insolvency of that person or entity; and (k) the right to marshalling of
Borrower’s assets or the benefit of any exemption claimed by Guarantor. Guarantor acknowledges and
represents that Guarantor has relied upon Guarantor’s own due diligence in making an independent
appraisal of Borrower, Borrower’s business affairs and financial condition, and any collateral;
Guarantor will continue to be responsible for making an independent appraisal of such matters; and
Guarantor has not relied upon Bank or its affiliates for information regarding Borrower or any
collateral.



FINANCIAL CONDITION. Guarantor, in all material respects, warrants, represents and covenants to
Bank and its affiliates that on and after the date hereof: (a) the fair saleable value of
Guarantor’s assets exceeds its liabilities, Guarantor is meeting its current liabilities as they
mature, and Guarantor is and shall remain solvent; (b) all financial statements of Guarantor
furnished to Bank are correct and accurately reflect the financial condition of Guarantor as of
the respective dates thereof; (c) since the date of such financial statements, there has not
occurred a material adverse change in the financial condition of Guarantor; and (d) there are not
now pending any court or administrative proceedings or undischarged judgments against Guarantor,
no federal or state tax liens have been filed or threatened against Guarantor, and Guarantor is
not in default or claimed default under any material agreement.



INTEREST AND APPLICATION OF PAYMENTS. Regardless of any other provision of this Guaranty or other
Loan Documents, if for any reason the effective interest on any of the Guaranteed Obligations
should exceed the maximum lawful interest, the effective interest shall be deemed reduced to and
shall be such maximum lawful interest, and any sums of interest which have been collected in excess
of such maximum lawful interest shall be applied as a credit against the unpaid principal balance
of the Guaranteed Obligations. Monies received from any source by Bank or its affiliates for
application toward payment of the Guaranteed Obligations may be applied to such Guaranteed
Obligations in any manner or order deemed appropriate by Bank and its affiliates.



DEFAULT. If any of the following events occur, a default (“Default”) under this Guaranty shall
exist: (a) failure of timely payment or performance of the Guaranteed Obligations or a default




3









 




under any Loan Document after applicable notice and cure periods, if any; (b) a breach of any
agreement or representation contained or referred to in the Guaranty, or any of the Loan
Documents; (c) one hundred eighty (180) calendar days after the death of Guarantor unless Bank
approves a substitute guarantor; (d) the assignment for the benefit of creditors of, or the
commencement of any insolvency or bankruptcy proceeding by or against Guarantor, provided such
event is not cured or set aside within sixty (60) days of its occurrence; (e) Bank determines in
good faith, in its sole discretion, that the prospects for payment or performance of the
Guaranteed Obligations are materially impaired or a material adverse change has occurred in the
business or prospects of Guarantor, financial or otherwise; and/or (f) a sale or transfer of
Guarantor’s ownership interest in the Borrower which results in Guarantor or his Affiliate(s) no
longer controlling Borrower.



If a Default occurs, the Guaranteed Obligations shall be due immediately and payable without
notice, other than Guaranteed Obligations under any swap agreements (as defined in 11 U.S.C. §
101, as in effect from time to time) with Bank or its affiliates, which shall be due in accordance
with and governed by the default and termination provisions of said swap agreements, and, Bank and
its affiliates may exercise any rights and remedies as provided in this Guaranty and other Loan
Documents, or as provided at law or equity. Guarantor shall pay interest on the Guaranteed
Obligations from such Default at the highest rate of interest charged on any of the Guaranteed
Obligations.



ATTORNEYS’ FEES AND OTHER COSTS OF COLLECTION. Guarantor shall pay all of Bank’s and its
affiliates’ reasonable expenses incurred to enforce or collect any of the Guaranteed Obligations,
including, without limitation, reasonable arbitration, paralegals’, attorneys’ and experts’ fees
and expenses, whether incurred without the commencement of a suit, in any suit, arbitration, or
administrative proceeding, or in any appellate or bankruptcy proceeding.



SUBORDINATION OF OTHER DEBTS. Guarantor agrees: (a) to subordinate the obligations now or
hereafter owed by Borrower to Guarantor (“Subordinated Debt”) to any and all obligations of
Borrower to Bank or its affiliates now or hereafter existing while this Guaranty is in effect,
provided however that Guarantor may receive regularly scheduled principal and interest payments on
the Subordinated Debt so long as (i) all sums then due and payable by Borrower to Bank and its
affiliates have been paid in full on or prior to such date, and (ii) no event or condition which
constitutes or which with notice or the lapse of time would constitute an event of default with
respect to the Guaranteed Obligations shall be continuing on or as of the payment date; (b)
Guarantor will either place a legend indicating such subordination on every note, ledger page or
other document evidencing any part of the Subordinated Debt or deliver such documents to Bank; and
(c) except as permitted by this paragraph, Guarantor will not request or accept payment of or any
security for any part of the Subordinated Debt, and any proceeds of the Subordinated Debt paid to
Guarantor, through error or otherwise, shall immediately be forwarded to Bank by Guarantor,
properly endorsed to the order of Bank, to apply to the Guaranteed Obligations.



MISCELLANEOUS. Assignment. This Guaranty and other Loan Documents shall inure to the benefit of and
be binding upon the parties and their respective heirs, legal representatives, successors and
assigns. Bank’s interests in and rights under this Guaranty and other Loan Documents are freely
assignable, in whole or in part, by Bank. Any assignment shall not release Guarantor from the
Guaranteed Obligations. Organization; Powers. Guarantor (i) is an adult individual and is sui
juris, (ii) has the power and authority to own its properties and assets and to carry on its
business as now being conducted and as now contemplated; and (iii) has the power and authority to
execute, deliver and perform, and by all necessary action has authorized the execution, delivery
and performance of, all of its obligations under this Guaranty and any other Loan Document to which
it is a party. Applicable Law; Conflict Between Documents. This




4









 




Guaranty shall be governed by and construed under the laws of the state named in Bank’s address
shown above without regard to that state’s conflict of laws principles. If the terms of this
Guaranty should conflict with the terms of any commitment letter that survives closing, the terms
of this Guaranty shall control. Jurisdiction. Guarantor irrevocably agrees to non-exclusive
personal jurisdiction in the state named in Bank’s address shown above. Severability. If any
provision of this Guaranty or of the other Loan Documents shall be prohibited or invalid under
applicable law, such provision shall be ineffective but only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the remaining provisions of
this Guaranty or other Loan Documents. Notices. Any notices to Guarantor shall be sufficiently
given if in writing and mailed or delivered to Guarantor’s address shown above or such other
address as provided hereunder, and to Bank, if in writing and mailed or delivered to Wachovia Bank,
National Association, Mail Code VA7628, P.O. Box 13327, Roanoke, VA 24040 or Wachovia Bank,
National Association, Mail Code VA7628, 10 South Jefferson Street, Roanoke, VA 24011 or such other
address as Bank may specify in writing from time to time. Notices to Bank must include the mail
code. In the event that Guarantor changes Guarantor’s address at any time prior to the date the
Guaranteed Obligations are paid in full, Guarantor agrees to promptly give written notice of said
change of address to Bank by registered or certified mail, return receipt requested, all charges
prepaid. Plural; Captions. All references in the Loan Documents to borrower, guarantor, person,
document or other nouns of reference mean both the singular and plural form, as the case may be,
and the term “person” shall mean any individual person or entity. The captions contained in the
Loan Documents are inserted for convenience only and shall not affect the meaning or interpretation
of the Loan Documents. Binding Contract. Guarantor by execution of and Bank by acceptance of this
Guaranty agree that each party is bound to all terms and provisions of this Guaranty. Amendments,
Waivers and Remedies. No waivers, amendments or modifications of this Guaranty and other Loan
Documents shall be valid unless in writing and signed by an officer of Bank. No waiver by Bank or
its affiliates of any Default shall operate as a waiver of any other Default or the same Default on
a future occasion. Neither the failure nor any delay on the part of Bank or its affiliates in
exercising any right, power, or privilege granted pursuant to this Guaranty and other Loan
Documents shall operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise or the exercise of any other right, power or privilege. All
remedies available to Bank or its affiliates with respect to this Guaranty and other Loan Documents
and remedies available at law or in equity shall be cumulative and may be pursued concurrently or
successively. Loan Documents. The term “Loan Documents” refers to all documents executed in
connection with or related to the Guaranteed Obligations and may include, without limitation, the
Note, the Credit Agreement, the Unconditional Guaranty executed by Steve Berrard dated of even date
herewith, security agreements, instruments, financing statements, letters of credit and any
amendments or supplements (excluding swap agreements as defined in 11 U.S.C. § 101, as in effect
from time to time). LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES
HERETO, INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION
PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY
CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR
AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE
A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2)
PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO
PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY
SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION,
JUDICIALLY OR OTHERWISE. FINAL AGREEMENT. This Agreement and the other Loan Documents represent the
final agreement between the parties and may not be




5









 




contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties.
There are no unwritten oral agreements between the parties.



NEGATIVE COVENANTS. Guarantor agrees that from the date hereof and until final payment in full of
the Guaranteed Obligations, unless Bank shall otherwise consent in writing, Guarantor will not:
Default on Other Contracts or Obligations. Default (beyond any applicable cure and grace periods,
if any) on any material contract or contracts with or obligation when due to a third party or
default in the performance of any obligation to a third party incurred for money borrowed which
would result in the acceleration of debt owed in excess of $5,000,000.00 in the aggregate.
Government Intervention. Permit the assertion or making of any seizure, vesting or intervention by
or under authority of any governmental entity, as a result of which the management of Guarantor is
displaced of its authority in the conduct of its respective business or such business is
materially curtailed or materially impaired. Judgment Entered. Permit the entry of any final
monetary judgment(s) which, in the aggregate exceed $25,000,000.00 when taking into account
Guarantor and Huizenga Investments Limited Partnership, a Nevada limited partnership.



PERSONAL FINANCIAL STATEMENTS. Huizenga Investments and Guarantor shall deliver to Bank, within
120 days after the end of each calendar year, combined financial statements including, a balance
sheet, with supporting schedules; all in reasonable detail and prepared on a consistent basis with
prior financial statements furnished to Bank by Huizenga Investments and Guarantor. Such
statements shall be certified as to their correctness by Guarantor.



ARBITRATION. Upon demand of any party hereto, whether made before or after institution of any
judicial proceeding, any claim or controversy arising out of or relating to the Loan Documents
between parties hereto (a “Dispute”) shall be resolved by binding arbitration conducted under and
governed by the Commercial Financial Disputes Arbitration Rules (the “Arbitration Rules”) of the
American Arbitration Association (the “AAA”) and the Federal Arbitration Act. Disputes may include,
without limitation, tort claims, counterclaims, a dispute as to whether a matter is subject to
arbitration, claims brought as class actions, or claims arising from documents executed in the
future. A judgment upon the award may be entered in any court having jurisdiction. Notwithstanding
the foregoing, this arbitration provision does not apply to disputes under or related to swap
agreements. Special Rules. All arbitration hearings shall be conducted in the city named in the
address of Bank first stated above. A hearing shall begin within 90 days of demand for arbitration
and all hearings shall conclude within 120 days of demand for arbitration. These time limitations
may not be extended unless a party shows cause for extension and then for no more than a total of
60 days. The expedited procedures set forth in Rule 51 et seq. of the Arbitration Rules
shall be applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed attorneys
selected from the Commercial Financial Dispute Arbitration Panel of the AAA. The parties do not
waive applicable Federal or state substantive law except as provided herein. Preservation and
Limitation of Remedies. Notwithstanding the preceding binding arbitration provisions, the parties
agree to preserve, without diminution, certain remedies that any party may exercise before or after
an arbitration proceeding is brought. The parties shall have the right to proceed in any court of
proper jurisdiction or by self-help to exercise or prosecute the following remedies, as applicable:
(i) all rights to foreclose against any real or personal property or other security by exercising a
power of sale or under applicable law




6









 




by judicial foreclosure including a proceeding to confirm the sale; (ii) all rights of self-help
including peaceful occupation of real property and collection of rents, set-off, and peaceful
possession of personal property; (iii) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment of receiver and filing an
involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by confession of judgment.
Any claim or controversy with regard to any party’s entitlement to such remedies is a Dispute.
Waiver of Jury Trial. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE
IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL WITH REGARD TO A DISPUTE AS TO WHICH
BINDING ARBITRATION HAS BEEN DEMANDED.




7









 





     IN WITNESS WHEREOF, Guarantor, on the day and year first written above, has caused this
Unconditional Guaranty to be executed under seal.


Signed, sealed and delivered in the presence of:




	 	 	 	 	 	 	 

	/s/ Judith Harper
 


	 	 
	 	/s/ H. Wayne Huizenga
 

	 	 
	Print Name: Judith Harper

	 	 	 	H. Wayne Huizenga	 	 






	 	 	 

	/s/ Sylvia Carrizales
 


	 	 
	Print Name: Sylvia Carrizales
	 	 






	 	 	 	 	 	 	 

	STATE OF FLORIDA

	 	 	)	 	 	 
	 

	 	 	)	 	 	SS:
	COUNTY OF BROWARD

	 	 	)	 	 	 





The foregoing instrument was acknowledged before me this 25th day of August, 2006, by H. Wayne
Huizenga. He is personally known to me or has produced a driver’s license as
identification and did not take an oath.




	 	 	 	 	 

	

	 	/s/ Lourdes Steib
 

Print or Stamp Name: Lourdes Steib

Notary Public, State of Florida at Large

Commission No: DDO 384972 

My Commission Expires: 2/13/2009
	 	 











 









 








     IN WITNESS WHEREOF, Guarantor, on the day and year first written above, has caused this
Unconditional Guaranty to be executed under seal.


Signed, sealed and delivered
in the presence of:




	 	 	 	 	 	 	 

	/s/ Judith Harper
 


	 	 
	 	/s/ H. Wayne Huizenga
 

	 	 
	Print Name: Judith Harper

	 	 	 	H. Wayne Huizenga	 	 






	 	 	 

	/s/ Sylvia Carrizales
 


	 	 
	Print Name: Sylvia Carrizales
	 	 






	 	 	 	 	 	 	 

	STATE OF FLORIDA

	 	 	)	 	 	 
	 

	 	 	)	 	 	SS:
	COUNTY OF BROWARD

	 	 	)	 	 	 





The foregoing instrument was acknowledged before me this 25th day of August, 2006, by H. Wayne
Huizenga. He is personally known to me or has produced a driver’s license as
identification and did not take an oath.




	 	 	 	 	 

	

	 	/s/ Lourdes Steib
 

Print or Stamp Name: Lourdes Steib

Notary Public, State of Florida at Large

Commission No.: DDO 384972 

My Commission Expires: 2/13/2009