Exhibit 5
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NationsBank
NationsBank of Texas, N.A. Continuing and Unconditional Guaranty
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1. Guaranty. For Value Received, and to induce NationsBank of Texas, N.A.
(Banking Center) ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (Attn: ▇▇▇▇▇
▇. ▇▇▇▇▇▇) ("Bank"), to make loans or advances or to extend credit or other
financial accommodations or benefits, with or without security, to or for the
account of Maverick Entrepreneurs Fund, Ltd., a Texas limited partnership
("Borrower"), the undersigned (individually, a "Guarantor" and collectively,
"Guarantors") severally become surety for and irrevocably and unconditionally
guarantee to Bank the full and prompt payment when due, whether by acceleration
or otherwise, of any and all Liabilities (as defined herein) of Borrower to
Bank, together with reasonable attorney's fees, costs and expenses incurred by
Bank in enforcing any and all of such indebtedness. This Guaranty is continuing
but shall be limited as to the amount as provided herein.
Guarantors further unconditionally guarantee the faithful, prompt and complete
compliance by Borrower with all terms, conditions, covenants, agreements and
undertakings of Borrower (herein collectively referred to as the "Obligations")
under all notes and other documents evidencing the Liabilities and under all
deeds to secure debt, deeds of trust, mortgages, security agreements and other
agreements, documents and instruments executed in connection with the
Liabilities or related thereto (all such deeds to secure debt, deeds of trust,
mortgages, security agreements and other documents securing payment of the
Liabilities and all notes and other agreements, documents, and instruments
evidencing or relating to the Liabilities and Obligations being herein
collectively called the "Loan Documents"). The undertakings of Guarantors
hereunder are independent of the Liabilities and Obligations of Borrower and a
separate action or actions for payment, damages or performance may be brought or
prosecuted against any or all Guarantors, whether or not an action is brought
against Borrower or to realize upon the security for the Liabilities and/or
Obligations and whether or not Borrower is joined in any such action or actions,
and whether or not notice is given or demand is made upon Borrower.
Bank shall not be required to proceed first against Borrower, or any other
person, firm or corporation, whether primarily or secondarily liable, or against
any Collateral held by it, or any other guarantor (including any other
Guarantor) before resorting to any Guarantor for payment, and no Guarantor or
any other guarantor (including any other Guarantor) shall be entitled to assert
as a defense to the enforceability of the Guaranty any defense of Borrower or
any other person with respect to any Liabilities or Obligations.
2. Paragraph Headings and Governing Law. Guarantors agree that the
paragraph headings in this Guaranty are for convenience only and that they will
not limit any of the provisions of this Guaranty. Guarantors further agree that
this Guaranty shall be governed by and construed in accordance with the laws of
the State of Texas and applicable United States federal law. Guarantors further
agree that this Guaranty shall be deemed to have been made in the State of Texas
at Bank's address indicated herein, and shall be governed by, and construed in
accordance with, the laws of the State of Texas, or the United States courts
located within the State of Texas, and is performable in Dallas County, Texas.
3. Definitions.
A. "Liability" or "Liabilities" as used herein shall include all
liabilities, overdrafts, indebtedness, and obligations of Borrower to Bank,
whether direct or indirect, absolute or contingent, joint or several, secured or
unsecured, due or not due, liquidated or unliquidated, arising by operation of
law or otherwise, now or hereafter existing, pursuant to that certain Loan
Agreement of even date herewith between Maverick Entrepreneurs Fund, Ltd. and
Bank and the indebtedness of Borrower thereunder, including but not limited to
all extensions or renewals thereof, and all sums payable under or by virtue
thereof, including without limitation, all amounts of principal and interest,
all expenses (including attorney's fees and cost of collection as specified)
incurred in the collection thereof or the enforcement of rights thereunder or in
enforcing this Guaranty (including without limitation, any liability arising
from failure to comply with state or federal laws, rules and regulations
concerning the control of hazardous wastes or substances at or with respect to
any real estate securing any loan guaranteed hereby), whether arising in the
ordinary course of business or otherwise, and whether held or to be held by Bank
for its own account or as agent for another or others. If Borrower is a
partnership, corporation or other entity
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the term "Liability" or "Liabilities" as used herein shall include all
Liabilities to Bank of any successor entity or entities.
B. "Guarantors" as used herein shall mean each Guarantor or any one or
more of them. Anyone executing this Guaranty shall be bound by the terms hereof
without regard to execution by anyone else. This Guaranty is binding upon each
Guarantor, his, their or its executors, administrators, successors or assigns,
and shall inure to the benefit of Bank, its successors, endorsees or assigns.
"Guarantor" as used in this instrument shall be construed as singular or plural
to correspond with the number of persons executing this instrument as Guarantor.
The pronouns used in this Agreement are in the masculine gender but shall be
construed as female or neuter as an occasion may require.
C. "Collateral" means the property subject to a security interest, and
includes accounts and chattel paper which have been sold, including but not
limited to all additions and accessions thereto, all replacements or substitutes
therefor, and all immediate and remote proceeds of the sale or other disposition
thereof.
4. Waivers by Guarantors. Each Guarantor waives notice of acceptance of this
Guaranty, notice of any Liability or Obligations to which it may apply, and
waives presentment, demand for payment, protest, notice of dishonor or
nonpayment of any Liabilities, waives notice of intent to accelerate, notice of
acceleration and notice of any suit or the taking of other action by Bank
against Borrower, any Guarantor or any other person and any other notice to any
party liable thereon (including any other Guarantor) and any applicable statute
of limitations.
Each Guarantor also hereby waives any claim, right or remedy which such
Guarantor may now have or hereafter acquire against Borrower that arises
hereunder and/or from the performance by any Guarantor hereunder including,
without limitation, any claim, remedy or right of subrogation, reimbursement,
exoneration, contribution, indemnification, or participation in any claim, right
or remedy of Bank against Borrower or any security which Bank now has or
hereafter acquires, whether or not such claim, right or remedy arises in equity,
under contract, by statute, under common law or otherwise.
Each Guarantor hereby agrees to waive the benefits of any provision of law
requiring that Bank exhaust any right or remedy, or take any action, against
Borrower, any Guarantor, any other person and/or property including, without
limitation, to the extent permitted by applicable law, the provisions of the
Texas Civil Practice and Remedies Code ss.17.001, Texas Rules of Civil Procedure
Rule 31 and the Texas Business and Commerce Code ss.34.03, as amended, or
otherwise.
Bank may at any time and from time to time (whether before or after revocation
or termination of this Guaranty) without notice to Guarantors (except as
required by law), without incurring responsibility to Guarantors, without
impairing, releasing, or otherwise affecting the obligations of Guarantors, in
whole or in part, and without the endorsement or execution by any Guarantor of
any additional consent, waiver or guaranty: (a) change the manner, place or
terms of payment of the Liabilities and/or the Obligations; (b) change or extend
the time of or renew or alter, any Liability or Obligation or installment
thereof, or any security therefor; (c) loan additional monies or extend
additional credit to Borrower, with or without security, thereby creating new
Liabilities or Obligations the payment or performance of which shall be
guaranteed hereunder, and the Guaranty herein made shall apply to the
Liabilities and Obligations as so changed, extended, surrendered, realized upon
or otherwise altered; (d) sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property at any time
pledged or mortgaged to secure the Liabilities or Obligations and any offset
there against; (e) exercise or refrain from exercising any rights against
Borrower or others (including any Guarantor) or act or refrain from acting in
any other manner; (f) settle or compromise any liability or obligation or any
security therefor and subordinate the payment of all or any part thereof to the
payment of any liability or obligation of any other parties primarily or
secondarily liable on any of the Liabilities or Obligations; (g) release or
compromise any liability of any Guarantor hereunder or any liability or
obligation of any other parties primarily or secondarily liable on any of the
Liabilities or Obligations; or (h) apply any sums from any sources to any
Liability or Obligation without regard to any Liabilities or Obligations
remaining unpaid.
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5. Subordination. Upon demand of Bank, each Guarantor agrees that it will not
demand, take or receive from Borrower, by set-off or in any other manner,
payment of any liabilities and/or obligations, now and at any time or times
hereafter owing by Borrower to such Guarantor unless and until all the
Liabilities shall have been fully paid and all the Obligations have been
performed, and any security interest, liens or encumbrances which such Guarantor
now has and from time to time hereafter may have upon any of the assets of
Borrower shall be made subordinate, junior and inferior and postponed in
priority, operation and effect to any security interest of Bank in such assets.
6. Waivers by Bank. No delay on the part of Bank in exercising any of its
options, powers or rights, or any partial or single exercise thereof, shall
constitute a waiver thereof. No waiver of any of its rights hereunder, and no
modification or amendment of this Guaranty, shall be deemed to be made by Bank
unless the same shall be in writing, duly signed on behalf of Bank; and each
such waiver, if any, shall apply only with respect to the specific instance
involved, and shall in no way impair the rights of Bank or the obligations of
any such Guarantor to Bank in any other respect at any other time.
7. Termination. This Guaranty shall continue until written notice of revocation
signed by each respective Guarantor or until written notice of the death of such
Guarantor shall actually have been received by Bank, notwithstanding change in
name, location, composition or structure of, or the dissolution, termination or
increase, decrease or change in personnel, owners or partners of Borrower, or
any one or more of Guarantors, provided, however, that no notice of revocation
or termination hereof shall affect in any manner rights arising under this
Guaranty with respect to Liabilities or Obligations that shall have been
created, contracted, assumed or incurred prior to receipt of such written notice
pursuant to any agreement entered into by Bank prior to receipt of such notice,
and the sole effect of such notice of revocation or termination hereof shall be
to exclude from this Guaranty Liabilities or Obligations thereafter arising that
are unconnected with Liabilities or Obligations theretofore arising or
transactions entered into theretofore.
In the event of the death of a Guarantor, the liabilities of the estate of the
deceased Guarantor shall continue in full force and effect as to (i) the
Liabilities existing at the date of death, and any renewals or extensions
thereof, and (ii) loans or advances made to or for the account of Borrower after
the date of death of the deceased Guarantor pursuant to the liabilities of Bank
under a commitment made to Borrower prior to the date of such death. As to all
surviving Guarantors, this Guaranty shall continue in full force and effect
after the death of a Guarantor, not only as to the Liabilities existing at that
time, but also as to Liabilities thereafter incurred by Borrower to Bank.
This Guaranty shall automatically terminate when all Liabilities have been paid
in full and Bank has no further obligation to advance funds to Borrower under
the Loan Documents.
8. Partial Invalidity and/or Enforceability of Guaranty. The unenforceability or
invalidity of any provision of this Guaranty shall not affect the enforceability
or validity of any other provision herein and the invalidity or unenforceability
of any provision of any Loan Document as it may apply to any person or
circumstance shall not affect the enforceability or validity of such provision
as it may apply to other persons or circumstances.
In the event Bank is required to relinquish or return the payments, the
Collateral or the proceeds thereof, in whole or in part, which had been
previously applied to or retained for application against any Liability or
Obligation, by reason of a proceeding arising under the Bankruptcy Code, or for
any other reason, this Guaranty shall automatically continue to be effective
notwithstanding any previous cancellation or release effected by Bank.
9. Obligations of Guarantors. In the event that Borrower fails to perform any of
the Obligations or pay any of the Liabilities, Guarantors shall upon demand by
Bank, promptly and with due diligence pay all Liabilities and perform and
satisfy for the benefit of Bank all Obligations.
No Guarantor will, without the prior written consent of Bank, become a party to
a merger or consolidation with any other company, except where such Guarantor is
the surviving corporation or entity, and all covenants under this Guaranty are
assumed by the surviving corporation. Further, no Guarantor may change the
status of or type
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of entity that Guaranty is, without the written consent of Bank and all
covenants under this Guaranty are assumed by the new or surviving entity. Each
Guarantor further agrees that this Guaranty shall be binding, legal and
enforceable against such Guarantor in the event Borrower changes its name,
status or type of entity.
10. Financial and Other Information. Guarantors agree to furnish to Bank any and
all financial information and any other information regarding Guarantors and/or
Collateral requested in writing by Bank within ten (10) days of the date of the
request. Each Guarantor has made an independent investigation of the financial
condition and affairs of Borrower prior to entering into this Guaranty, and each
Guarantor has made and will continue to make an independent appraisal of the
creditworthiness of Borrower; and in entering into this Guaranty, no Guarantor
has relied upon any representation of Bank as to the financial condition,
operation or creditworthiness of Borrower. Guarantors further agree that Bank
shall have no duty or responsibility now or hereafter to make any investigation
or appraisal of Borrower on behalf of such Guarantor or to provide Guarantor
with any credit or other information which may come to its attention now or
hereafter.
11. Notices. All notices required or permitted to be given herein shall be sent
by registered or certified mail, return receipt requested, to the Bank at the
address shown in the preamble to this Guaranty and to Guarantors at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ or such other address
provided to Bank by like notice. The parties agree that the notice shall be
considered received five (5) days after being placed in the United States mail.
12. Events of Default. The following are events of default hereunder: (a) the
failure to pay or perform any Obligation or Liability of any Guarantor to Bank,
or to any affiliate of Bank, whether under this Guaranty or any other agreement,
note or instrument now or hereafter existing which relates to the Liabilities,
as and when due (whether upon demand, at maturity or by acceleration); (b) the
failure to pay or perform any other obligation, liability or indebtedness of any
Guarantor as and when due, which results in the acceleration thereof, whether to
Bank or some other party, the Collateral for which constitutes an encumbrance on
the Collateral for this Guaranty; (c) death of a Guarantor (if an individual),
revocation or termination (if a trust) without prior consent of Bank, or a
proceeding being filed or commenced against any Guarantor for dissolution or
liquidation, or any Guarantor voluntarily or involuntarily terminating or
dissolving or being terminated or dissolved; (d) the insolvency of, the
appointment of a custodian, trustee, liquidator or receiver for or for any of
the property of, or an assignment for the benefit of creditors by, or the filing
of a petition under any bankruptcy, insolvency or debtor's relief law or for any
adjustment of indebtedness, composition or extension by or against any
Guarantor; (e) any lien or additional security interest being placed upon any of
the Collateral which is security for this Guaranty; (f) acquisition at any time
or from time to time of title to the whole of or any part of the Collateral
which is security for this Guaranty by any person, partnership, corporation or
other entity; (g) Bank determining that any representation or warranty made by
any Guarantor to Bank is, or was, untrue or materially misleading; (h) failure
of any Guarantor to timely deliver such financial statements and other
statements of condition; (i) any default under any Loan Documents; (j) entry of
a judgment against any Guarantor which Bank deems to be of a material nature, in
Bank's sole discretion; (k) the seizure or forfeiture of, or the issuance of any
writ of possession, garnishment or attachment, or any turnover order for any
property of any Guarantor; (l) termination of Guaranty by a Guarantor; or (m)
the inability of any Guarantor to pay debts as they mature whether owing to Bank
or any other party.
13. Remedies. Upon the occurrence of any event of default hereunder, Bank shall
have all of the remedies of a creditor and, to the extent applicable, of a
secured party, under all applicable law, and without limiting the generality of
the foregoing, Bank may, at its option and without notice or demand: (a) declare
any Liability accelerated and due and payable at once; and (b) take possession
of any Collateral wherever located, and sell, resell, assign, transfer and
deliver all or any part of said Collateral of any Guarantor at any public or
private sale or otherwise dispose of any or all of the Collateral in its then
condition, for cash or on credit or for future delivery, and in connection
therewith Bank may impose reasonable conditions upon any such sale. Bank, unless
prohibited by law the provisions of which cannot be waived, may purchase all or
any part of said Collateral to be sold, free from and discharged of all trusts,
claims, rights or redemption and equities of Borrower or Guarantors whatsoever;
Guarantors acknowledge and agree that the sale of any Collateral through any
nationally recognized broker-dealer, investment banker or any other method
common in the securities industry shall be
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deemed a commercially reasonable sale under the Uniform Commercial Code or any
other equivalent statute or federal law, and expressly waives notice thereof
except as provided herein; and (c) set-off against any or all liabilities of any
Guarantor all money owed by Bank in any capacity to such Guarantor whether or
not due, and also set-off against all other liabilities of Borrower to Bank all
money owed by Bank in any capacity to Borrower or a Guarantor, and if exercised
by Bank, Bank shall be deemed to have exercised such right of set-off and to
have made a charge against any such money immediately upon the occurrence of
such default although made or entered on the books subsequent thereto.
14. Attorney Fees, Costs and Expenses. Guarantors shall pay all costs of
collection and reasonable attorney's fees, including fees in connection with any
suit, mediation or arbitration proceeding, out of court payment agreement,
trial, appeal, bankruptcy proceedings or otherwise, incurred or paid by Bank in
enforcing the payment of any Liability or enforcing or preserving any right or
interest of Bank hereunder, including the collection, preservation, sale or
delivery of any Collateral from time to time pledged to Bank, and after
deducting such fees, costs and expenses from the proceeds of sale or collection,
Bank may apply any residue to pay any of the Liabilities and Guarantors shall
continue to be liable for any deficiency with interest at the rate specified in
any instrument evidencing the Liability or, at the Bank's option, equal to the
highest lawful rate, which shall remain a liability.
15. Preservation of Property. Bank shall not be bound to take any steps
necessary to preserve any rights in any of the property of Guarantors pledged to
Bank to secure Guarantors' obligations against prior parties who may be liable
in connection therewith, and Guarantors hereby agree to take any such steps.
Bank, nevertheless, at any time, may (a) take any action it deems appropriate
for the care or preservation of such property or of any rights of Guarantors or
Bank therein, (b) demand, ▇▇▇ for, collect or receive any money or property at
any time due, payable or receivable on account of or in exchange for any
property of Guarantors, (c) compromise and settle with any person liable on such
property, or (d) extend the time of payment or otherwise change the terms of the
Loan Documents as to any party liable on the Loan Documents, all without notice
to, without incurring responsibility to, and without affecting any of the
obligations or liabilities of Guarantors.
16. Collateral. Bank at all times and from time to time shall have the right to
require Guarantors to deliver to Bank Collateral satisfactory to Bank to secure
Guarantors' undertakings hereunder and/or the liabilities of Guarantors
hereunder.
Bank is granted a contractual right of set-off and will not be liable for
dishonoring checks or withdrawals where the exercise of Bank's contractual right
of set-off results in insufficient funds in any Guarantor's account. As
authorized by law, each Guarantor grants to Bank this contractual right of
set-off in all deposits of such Guarantor now or at anytime hereafter in the
possession of Bank, including but not limited to any joint account, special
account, account by the entireties, tenancy in common, and all dividends and
distributions now or hereafter in the possession or control of Bank.
|_| Check if applicable. In addition to the provisions stated above, Guarantor
hereby pledges, assigns and grants to Bank a security interest in and title to
the Collateral described in the security agreement, deed of trust, deed to
secure debt, mortgage or other Collateral instrument dated _____________, 19__
which Collateral, except for any margin stock (as defined in Regulation U of the
Board of Governors of the Federal Reserve System), shall secure this Guaranty,
whether currently existing or arising in the future. Guarantor agrees to execute
such security agreements, financing statements and other documents as Bank may
reasonably require or request to obtain and perfect its security interest in
said Collateral.
17. Limitation on Liability. Each Guarantor's liability hereunder shall be
limited to (i) the amount set forth next to such Guarantor's name on Schedule I
attached hereto, which represents a percentage of the total loan commitment
under the Loan Documents, plus (ii) accrued interest thereon as provided in the
Loan Documents, and (iii) fees and expenses owing under the Loan Documents. The
liability of each such Guarantor under this Guaranty shall not be reduced by any
payments on the Liabilities except payments which reduce the principal balance
of the loan and the total loan commitment to an amount less than the amount set
forth on Schedule I.
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Further, the liability on any Guarantor hereunder shall not be reduced by any
amounts credited against the Liabilities on account of the purchase price paid
upon the sale (whether at a foreclosure sale or otherwise) of property pledged
or in which a security interest has been granted to Bank pursuant to any
security agreement as part of the Loan Documents, except to the extent that the
amounts credited against the Liabilities as a result of such sale reduce the
principal balance of the loan and the total loan commitment to an amount less
than the amount set forth on Schedule I.
18. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO
INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS GUARANTY
OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM BASED ON OR
ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE
APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION
OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC.
(J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY
INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION
AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS
GUARANTY MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS GUARANTY APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN DALLAS, TEXAS
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ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE
OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED
WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL
ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH
HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS GUARANTY SHALL BE DEEMED TO (i)
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LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS GUARANTY; OR (ii) BE A WAIVER BY THE
BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. ss. 91 OR ANY SUBSTANTIALLY
EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF THE BANK HERETO (A) TO
EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO
FORECLOSURE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN
FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO)
INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. BANK MAY
EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH
PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY
ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS GUARANTY. AT BANK'S OPTION,
FORECLOSURE UNDER A DEED OF TRUST OR MORTGAGE MAY BE ACCOMPLISHED BY ANY OF THE
FOLLOWING: THE EXERCISE OF A POWER OF SALE UNDER THE DEED OF TRUST OR MORTGAGE,
OR BY JUDICIAL SALE UNDER THE DEED OF TRUST OR MORTGAGE, OR BY JUDICIAL
FORECLOSURE. NEITHER THIS EXERCISE OR SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES
SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN
ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING
RESORT TO SUCH REMEDIES.
19. NOTICE OF FINAL AGREEMENT. THIS WRITTEN CONTINUING AND UNCONDITIONAL
GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
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AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
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IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be
executed as of November 22, 1994.
BANK: GUARANTORS:
NationsBank of Texas, N.A. Tallulah, Ltd.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Vice President, Private Banking General Partner
Brush Creek, Ltd.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
General Partner
▇▇▇▇▇▇ ▇. ▇▇▇▇ Revocable Trust
By: /s/ ▇▇▇ ▇▇▇▇
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▇▇▇ ▇▇▇▇, Trustee
▇▇▇▇ ▇▇▇▇ Revocable Trust
By: /s/ ▇▇▇ ▇▇▇▇
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▇▇▇ ▇▇▇▇, Trustee
▇▇▇▇▇ ▇▇▇▇ Elliot Trust
By: /s/ ▇▇▇ ▇▇▇▇
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▇▇▇ ▇▇▇▇, Trustee
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Trust
By: /s/ ▇▇▇ ▇▇▇▇
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▇▇▇ ▇▇▇▇, Trustee
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▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Trust
By: /s/ ▇▇▇ ▇▇▇▇
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▇▇▇ ▇▇▇▇, Trustee
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, III Trust
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., Trustee
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Trust
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., Trustee
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Trust
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., Trustee
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Trust
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
/s/ ▇▇▇ ▇▇▇▇
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▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
/s/ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇ ▇▇▇▇
-9-
SCHEDULE I
Guarantor Maximum Liability
--------- -----------------
Tallulah, Ltd. $
Brush Creek, Ltd.
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇ Revocable Trust
▇▇▇▇ ▇▇▇▇ Revocable Trust
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Trust
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Trust
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Trust
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Trust
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, III Trust
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Trust
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Trust
-10-