- 18 - repayment of the loan. See Restatement 3d, Suretyship and Guaranty, sec. 15 (1996) (Restatement). Nevertheless, petitioner’s guarantor (suretyship) status indicates that, as between the corporation and the petitioner, it is the corporation which ought to perform the underlying obligation or bear the cost of performance. See Restatement, sec. 1(c); 28 Fla. Jur. 2d Guaranty and Suretyship, sec. 1 (1988). The guaranty agreement does not alter our conclusion that the parties to the loans intended to create indebtedness in the corporation, and we so find. Indeed, the loan agreement specifically prohibits the assumption of the resulting indebtedness “unless required by law.” Nevertheless, petitioners argue, there was no indebtedness of the corporation because the corporation was thinly capitalized, the proceeds of the loans were used to purchase capital assets, and the corporation had no capacity to repay the loans. We grant the first two claims. Petitioner has failed to prove the third. Petitioner has offered no economic analysis leading to the conclusion that, at the time of the loans, the business of the corporation would not generate sufficient cash to pay off the loans. Moreover, the loans were to be used to construct productive resources and were secured by those resources. Mr. Sunderland, vice chairman of the bank, testified as follows: The guarantees, although a necessary condition forPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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