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EXHIBIT 10.18
SECURITY AND PLEDGE AGREEMENT AND COMMERCIAL GUARANTY
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BORROWER: mHL Development Company LENDER: The Confederated Tribes of the
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Grand Ronde Community of Oregon
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
GUARANTOR: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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AMOUNT OF GUARANTY. The amount of this Guaranty is the Indebtedness.
CONTINUING GUARANTY. For good and valuable consideration, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (collectively referred to as "Guarantor"), jointly and
severally, absolutely and unconditionally guarantee and promise to pay to The
Confederated Tribes of the Grand Ronde Community of Oregon ("Lender") or its
order, in legal tender of the United States of America, all the Indebtedness (as
that term is defined below) of mHL Development Company ("Borrower") to Lender on
the terms and conditions set forth in this Security and Pledge Agreement and
Commercial Guaranty.
DEFINITIONS. The following wards shall have the following meanings when used in
this Guaranty:
BORROWER. The word "Borrower" means mHL Development Company.
COMMERCIAL DEED OF TRUST. The words "Commercial Deed of Trust" mean a
Trust Deed and Assignment of Rents executed by Guarantor in a form
acceptable to Lender for the real property commonly known as ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, as security for Guarantor's
obligations under this Guaranty.
GUARANTOR. The word "Guarantor" means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇, jointly and severally.
GUARANTY. The word "Guaranty" means this Security and Pledge Agreement
and Commercial Guaranty between Guarantor and Lender dated April 14,
2000.
INDEBTEDNESS. The word "Indebtedness" means the Note, including (a) all
principal, (b) all interest, (c) all late charges, (d) all loan fees and
loan charges, (e) all costs advanced to protect Lender's security
interests in any and all collateral for the Note, (f) all collection
costs and expenses relating to the Note or to any collateral for the
Note, and (g) any extensions or renewals of the Note. Collection costs
and expenses include without limitation all of Lender's attorneys' fees
and legal expenses, whether or not suit is instituted, and attorneys'
fees and legal expenses for bankruptcy proceedings
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(including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection
services.
LENDER. The word "Lender" means The Confederated Tribes of the Grand
Ronde Community of Oregon, its successors and assigns.
NOTE. The word "Note" means the note or credit agreement dated April 14,
2000, in the principal amount of Two Million Five Hundred Thousand and
no/100 Dollars ($2,500,000.00) from Borrower to Lender, together with
all renewals of, extensions of, modifications of, refinancings of,
consolidations of, and substitutions for the Note or credit agreement.
PLEDGED SHARES. The words "Pledged Shares" mean all of the shares of
capital stock of National Applied Science, Inc., that are owned or held
by Guarantor (the "Pledged Shares").
RELATED DOCUMENTS. The words "Related Documents" mean and include
without limitation all promissory notes, credit agreements, loan
agreements, guaranties, security agreements, mortgages, deeds of trust,
and all other instruments, agreements, and documents, whether now or
hereafter existing, executed in connection with the Indebtedness.
MAXIMUM LIABILITY. The maximum liability of Guarantor under this Guaranty shall
not exceed at any one time the amount of the Indebtedness described above, plus
all costs and expenses of (a) enforcement of this Guaranty, and (b) collection
and sale of any collateral securing this Guaranty.
The above limitation on liability is not a restriction on the amount of the
Indebtedness of Borrower to Lender either in the aggregate or at any one time.
If Lender presently holds one or more guaranties, or hereafter receives
additional guaranties from Guarantor, the right of Lender under all guaranties
shall be cumulative. This Guaranty shall not (unless specifically provided below
to the contrary) affect or invalidate any such other guaranties. The liability
of Guarantor will be the aggregate liability of Guarantor under the terms of
this Guaranty and any other unterminated guaranties.
NATURE OF GUARANTY. Guarantor's liability under this Guaranty shall be open and
continuous for so long as this Guaranty remains in force. Guarantor intends to
guarantee at all times the performance and prompt payment when due whether at
maturity or earlier by reason of acceleration or otherwise all Indebtedness.
Accordingly, no payments made upon the Indebtedness will discharge or diminish
the continuing liability of Guarantor in connection with any remaining portions
of the Indebtedness or any of the Indebtedness which subsequently arises or is
thereafter incurred or contracted. Any married person who signs this Guaranty as
the Guarantor hereby expressly agrees that recourse may be had by Lender against
both his or her separate property and community property, whether now owned or
hereafter acquired.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or
to Borrower, and will continue in full force until all Indebtedness incurred or
contracted shall have been fully and finally paid and satisfied and all other
obligations of Guarantor under this Guaranty shall have been performed in full.
This Guaranty is Irrevocable and is binding upon Guarantor and Guarantor's
heirs, successors and assigns so long as any of the guaranteed Indebtedness
remains unpaid.
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GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender without
lessening Guarantor's liability under this Guaranty, from time to time: (a) to
make one or more additional secured or unsecured loans to Borrower, to lease
equipment or other goods to Borrower, or otherwise to extend additional credit
to Borrower; (b) to alter, compromise, renew, extend, accelerate, or otherwise
change one or more times the time for payment or other terms of the Indebtedness
or any part of the Indebtedness, including increases and decreases of the rate
of interest on the Indebtedness; extensions may be repeated and may be for
longer than the original loan term; (c) to take and hold security for the
payment of this Guaranty or the Indebtedness, and exchange, enforce, waive, fail
or decide not to perfect, and release any such security, with or without the
substitution of new collateral; (d) to release, substitute, agree not to ▇▇▇, or
deal with any one or more of Borrower's sureties, endorsers, or other guarantors
on any terms or in any manner Lender may choose; (e) to determine how, when, and
what application of payments and credits shall be made on the Indebtedness; (f)
to apply such security and direct the order or manner of sale thereof, including
without limitation any non-judicial sale permitted by the terms of the
controlling security agreement or deed of trust, as Lender in its discretion may
determine; (g) to sell, transfer, assign, or grant participations in all or any
part of the Indebtedness; and (h) to assign or transfer this Guaranty in whole
or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender that (a) no representations or agreements of any kind have been a made to
Guarantor which would limit or qualify in any way the terms of this Guaranty;
(b) Guarantor has a financial interest in the Borrower and this Guaranty is
executed at Borrower's request and for its benefit; (c) Guarantor has not and
will not, without prior consent of Lender, sell, lease, assign, encumber,
hypothecate, transfer, or otherwise dispose of all or substantially all of
Guarantor's assets, or any interest therein; (d) Lender has made no
representation to Guarantor as to the creditworthiness of Borrower; (e) upon
Lender's request, Guarantor will provide to Lender financial and credit
information in form acceptable to Lender, and all such financial information
provided to Lender is true and correct in all material respects and fairly
presents the financial condition of Guarantor as of the dates thereof, and no
material adverse change has occurred in the financial condition of Guarantor
since the date of the financial statements; (f) Guarantor has established
adequate means of obtaining from Borrower on a continuing basis information
regarding Borrower's financial condition; (g) this Guaranty does not require or
result in the creation or imposition of any sale, transfer, assignment, lien,
encumbrance, pledge, hypothecation, granting of a security interest, or any
other disposition ("Lien") on all or part of any of the Pledged Shares, except
for the Liens in favor of Lender created by this Guaranty; (h) neither the
execution of this Guaranty, the delivery of the Pledged Shares as security, nor
the foreclosure of the Guarantor's interest in the Pledged Shares will result in
violation of the Stock Transfer Restriction Agreement, dated as of
____________________________, by and among National Applied Science, Inc. and
Guarantor; and (i) Guarantor will not enter into any agreement (whether with any
other future shareholder or interest holder of Borrower or any other person)
restricting or otherwise affecting Guarantors' right to vote, receive dividends
with respect to, or transfer any of the Pledged Shares, or any of Lender's
rights under this Guaranty. Guarantor agrees to keep adequately informed from
such means of any facts, events, or circumstances which might in any way affect
Guarantor's risks under this Guaranty, and Guarantor further agrees that, absent
a request for information, Lender shall have no obligation to disclose to
Guarantor any information or documents acquired by Lender in the course of its
relationship with Borrower.
GRANT OF SECURITY INTEREST; PLEDGE OF SHARES. .As security for the full, prompt,
and complete payment when due, whether at maturity or earlier by reason of
acceleration or otherwise, and at all times thereafter, of all Indebtedness and
all obligations of Guarantor under this Guaranty, Guarantor grants to
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Lender a security interest in all of Guarantor's interest in the shares of
National Applied Science, Inc. Pursuant to Guarantor's grant of such security
interest, Guarantor hereby (i) assigns, delivers anal pledges to Lender all of
the shares of capital stock of National Applied Science, Inc., that are owned or
held by Guarantor (the "Pledged Shares"), duly endorsed for transfer or
accompanied by a duly executed stock power, (ii) covenants to assign, deliver,
and pledge to lender any shares of the capital stock of National Applied
Science, Inc., that are owned or held by Guarantor after the date of this
Guaranty, duly endorsed for transfer or accompanied by a duly executed stock
power, and (iii) grants to Lender a security interest in (A) the Pledged Shares
owned by Guarantor, (B) any shares of the capital stock of National Applied
Science, Inc., that are issued to Guarantor after the date of this Guaranty, and
(C) all amounts payable to Guarantor with respect to or by reason of the Pledged
Shares or any shares of the capital stock of National Applied Science, Inc.,
that are issued to Guarantor after the date of this Guaranty, and any proceeds
from the sale or other disposition thereof, subject to the provisions set forth
in this Guaranty. Any shares of the capital stock of National Applied Science,
Inc., that are owned or held by Guarantor after the date of this Guaranty will,
as of the date of issuance, become Pledged Shares.
IRREVOCABLE PROXIES. Notwithstanding any provision in this Guaranty to the
contrary, unless and until a default under this Guaranty shall have occurred,
Guarantor shall be entitled to exercise any and all rights relating to or
pertaining to the Pledged Shares, including, without limitation, the right to:
(a) receive all dividends paid and distributions and other payments (including
redemption or repurchase payments) so made in any way with respect to the
Pledged Shares, other than those paid in shares of capital stock, provided,
however, that all such dividends and distributions so paid and made shall be
held in trust for the benefit of the Lender and shall be paid over to Lender and
applied against the Indebtedness to the extent thereof; (b) vote the Pledged
Shares; and (c) give consent, waivers, and ratifications with respect to the
Pledged Shares. Effective upon the occurrence of a default under this Guaranty
and for so long as any default is continuing, Guarantor hereby appoints Lender
to be Guarantor's proxy agent, with full power of substitution, to vote all of
the Pledged Shares owned by Guarantor, and hereby covenants to appoint Lender to
be Guarantor's proxy agent, with full power of substitution to vote any of the
Pledged Shares, at all meetings of shareholders of National Applied Science,
Inc. or any adjournment or adjournments thereof, and in all unanimous, written
consents of shareholders of National Applied Science, Inc., with respect to all
matters submitted to the shareholders of National Applied Science, Inc., for
approval. For so long as a default hereunder is continuing, Lender will have all
of the power Guarantor would possess with respect to the matters set forth in
this section. Guarantor hereby ratifies and confirms all acts Lender may do or
cause to be done by virtue of and within the limitations of this irrevocable
proxy. Guarantor hereby revokes all previous proxies given by Guarantor with
respect to the Pledged Shares. GUARANTOR HEREBY WAIVES ALL RIGHT TO CANCEL OR
REVOKE THIS IRREVOCABLE PROXY UNTIL ALL OF THE INDEBTEDNESS AND ALL OBLIGATIONS
UNDER THIS GUARANTY HAVE BEEN PAID AND PERFORMED IN THEIR ENTIRETY, AND
ACKNOWLEDGES THAT THIS PROXY IS IRREVOCABLE AND COUPLED WITH AN INTEREST.
TITLE; NO LIENS. Guarantor is the sole record and beneficial owner of the
Pledged Shares, free and clear of all liens, rights, claims and encumbrances of
every kind and nature whatsoever, Guarantor will keep the Pledged Shares free
from any Liens except for the Liens in favor of Lender created by this Guaranty.
Guarantor agrees that it will defend, at its sole expense, the Pledged Shares
against all claims and demands of all Persons at any time claiming the same or
any interest therein.
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TAXES AND ASSESSMENTS. Guarantor will pay or cause to be paid promptly when due
all taxes and assessments on the Pledged Shares, unless the same are being
contested in good faith by appropriate proceedings and as to which such reserves
or other appropriate provisions as may be required by GAAP are being maintained.
ADDITIONAL SECURITY. As additional security for the repayment of all
Indebtedness and the full performance of all of Guarantor's obligations under
this Guaranty, Guarantor shall execute and deliver to Lender a Commercial Deed
of Trust in a form acceptable to Lender for the real property commonly known as
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
WAIVER. Guarantor hereby waives (i) diligence, presentment, demand of payment,
filing of claims with a court in the event of receivership or bankruptcy of
National Applied Science, Inc., protest or notice with respect to the
Indebtedness and all of the obligations of Guarantor and all other demands
whatsoever, (ii) all setoffs and counterclaims (except compulsory counterclaims)
and all presentments, demands for performance, notices of nonperformance,
protests, notices of protest, notices of dishonor, and notices of acceptance of
this Guaranty, (iii) all notices that the principal amount, or any portion
thereof, or any interest on any instrument or document evidencing all or any
part of the Indebtedness is due, (iv) to the extent permitted by law, notices of
exchange, sale, surrender, or other handling of the Pledged Shares, (v) all
defenses based on lack of consideration, breach of warranty, and usury, and (vi)
all rights to notice and a hearing or Lender's posting any bond or security
which might otherwise be required prior to Lender's exercising any of Lender's
remedies.
PERFECTION. Guarantor agrees to execute and deliver to Lender, at Guarantor's
expense, such further documents and assurances and take such further action
promptly upon the request of Lender from time to time reasonably requested in
order more effectively to carry out the intent and purpose of this Guaranty, to
perfect all security interests and pledges in favor of Lender described in this
Guaranty, and to establish and protect the rights and remedies created or
intended to be created in favor of Lender under this Guaranty. Without limiting
the generality of the foregoing, Guarantor agrees to execute and deliver to
Lender, upon Lender's reasonable request, such documents, filing statements or
supplements or amendments thereof, each in recordable form, and to record or
file counterparts thereof in accordance with the laws of the applicable
jurisdiction. Guarantor further authorizes and empowers Lender to execute and
file, on Guarantor's behalf and expense, any such filing statements or
supplements or amendments thereof.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives
any right to require Lender (a) to continue lending money or to extend other
credit to Borrower; (b) to make any presentment, protest, demand, or notice of
any kind, including notice of any nonpayment of the Indebtedness or of any
nonpayment related to any collateral, or notice of any action or nonaction on
the part of Borrower, Lender, any surety, endorser, or other guarantor; (d) to
proceed directly against or exhaust any collateral held by Lender from Borrower,
any other guarantor, or any other person; (e) to give notice of the terms, time,
and place of any public or private sale of personal property security held by
Lender from Borrower or to comply with any other applicable provisions of the
Uniform Commercial Code; (f) to pursue any other remedy within Lender's power;
or (g) to commit any act or omission of any kind, or at any time, with respect
to any matter whatsoever.
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Guarantor also waives any and all rights or defenses arising by reason of (a)
any "one action" or "anti-deficiency" law or any other law which may prevent
Lender from bringing any action, including a claim for deficiency, against
Guarantor, before or after Lender's commencement or completion of any
foreclosure action, either judicially or by exercise of a power of sale; (b) any
election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement, including without limitation any loss of rights Guarantor may
suffer by reason of any law limiting, qualifying, or discharging the
Indebtedness; (c) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower's
liability from any cause whatsoever, other than payment in full in legal tender,
of the Indebtedness; (d) any right to claim discharge of the Indebtedness on the
basis of unjustified impairment of any collateral for the Indebtedness; (e) any
statute of limitations, if at any time any action or suit brought by Lender
against Guarantor is commenced there is outstanding Indebtedness of Borrower to
Lender which is not barred by any applicable statute of limitations; or (f) any
defenses given to guarantors at law or in equity other than actual payment and
performance of the Indebtedness. If payment is made by Borrower, whether
voluntarily or otherwise, or by any third party, on the Indebtedness and
thereafter Lender is forced to remit the amount of that payment to Borrower's
trustee in bankruptcy or to any similar person under any federal or state
bankruptcy law or law for the relief of debtors, the Indebtedness shall be
considered unpaid for the purpose of enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any
deductions to the amount guaranteed under this Guaranty for any claim of setoff,
counterclaim, counter demand, recoupment, or similar right, whether such claim,
demand, or right may be asserted by the Borrower, the Guarantor, of both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by law or public policy.
EVENTS OF DEFAULT. Any of the following events and occurrences will constitute
an event of default under this Guaranty: Borrower defaults on any of the
Indebtedness; Lender declares Borrower in default under the Note; Guarantor
fails to make any payment to Lender on the Indebtedness; Guarantor fails to
perform any obligation due to Lender under this Guaranty or any other agreement
with Lender, including without limitation the Commercial Deed of Trust; any
representation or warranty of Guarantor under this Guaranty or document
delivered to Lender by Guarantor becomes or is found to have been materially
untrue, materially incorrect, or materially misleading as of the time it was
made or confirmed; there is any transfer or attempted transfer by Guarantor of
any portion of the Pledged Shares; or any Lien that is not permitted by this
Guaranty attaches to the Pledged Shares, or any interest therein.
REMEDIES. Upon the occurrence and during the continuance of any default, Lender
may exercise all remedies at law or in equity, all of which are cumulative and
nonexclusive, and all of which may be exercised without notice to or consent by
Guarantor and may realize on all collateral for this Guaranty to the fullest
extent the law allows. Without limiting the foregoing, Lender may immediately
accelerate all Indebtedness and foreclose upon all of Lender's collateral,
including foreclosure of the Commercial Deed of Trust. With respect to the
Pledged Shares, Lender may exercise any rights and remedies available to Lender
under the
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Uniform Commercial Code or exercise any other remedy available to Lender under
any document at any time or times hereafter executed by Guarantor or Borrower
and delivered to Lender. Lender may in its own name or that of Guarantor (and
Guarantor hereby appoints Lender as its irrevocable attorney-in-fact, with full
power of substitution, as to each of the following acts, which appointment is
coupled with an interest and will not be affected by the subsequent disability
or incompetency of Guarantor), transfer to the name of Lender or the name of its
nominee or nominees any or all of the Pledged Shares; transfer the whole or,
from time to time, any part of the Pledged Shares, or any interest therein, at
any private sale or public auction, with or without demand, advertisement, or
notice of the time or place of sale or adjournment thereof or otherwise, for
cash or on credit or for other property, for immediate or future delivery, and
for such price and on such other terms as Lender may deem commercially
reasonable. At any such sale Lender may bid for and purchase all or any of the
Pledged Shares free from any right or equity of redemption. Lender will be
entitled to accept the first offer received at any sale and to offer such
Pledged Shares to only one offeree. Guarantor hereby waives, to the fullest
extent permitted under applicable laws, any claim it may otherwise have that the
price at which such Pledged Shares were sold at any private sale or sales is
less than the price which would have been obtained at a public sale or sales, or
that the proceeds realized upon any sale, public or private, are less than the
amount which could have been realized under other circumstances. Lender will be
entitled to deduct all expenses of every kind incurred in connection with such
sale or auction prior to applying the balance of the payments or proceeds of
such sale or auction, as the case may be, to the payment and performance of all
of Guarantor's obligations under this Guaranty. Lender shall, to the extent, and
only to the extent, of any surplus remaining after payment in full of all of the
Indebtedness, transfer and assign to Guarantor such Pledged Shares and proceeds
held by Lender after the payment in full of all of the Indebtedness.
LENDER'S RIGHT OF SETOFF.
In addition to all liens upon and rights of setoff against the moneys,
securities or other property of Guarantor given to Lender by law, Lender shall
have, with respect to Guarantor's obligations to Lender under this Guaranty and
to the extent permitted by law, a contractual possessory security interest in
and a right of setoff against all moneys, securities and other property of
Guarantor now or hereafter in the possession of Lender. No security interest or
right of setoff shall be deemed to have been waived by any act or conduct on the
part of Lender or by any neglect to exercise such right of setoff or to enforce
such security interest or by any delay in so doing. Every right of setoff and
security interest shall continue in full force and effect until such right of
setoff or security interest is specifically waived or released by an instrument
in writing executed by tender.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the
Indebtedness of Borrower to Lender, whether now or hereafter created, shall be
prior to any claim that Guarantor may now have or hereafter acquire against
Borrower, whether or not Borrower becomes insolvent. Guarantor hereby expressly
subordinates any claim Guarantor may have against Borrower, upon any account
whatsoever, to any claim that Lender may now or hereafter have against Borrower.
In the event of insolvency and consequent liquidation of, the assets of
Borrower, through bankruptcy, by an assignment for the benefit of creditors, by
voluntary liquidation, or otherwise, the assets of Borrower applicable to the
payment of the claims of both Lender and Guarantor shall be paid to Lender and
shall be first applied by Lender to the Indebtedness of Borrower to Lender.
Guarantor does hereby assign to Lender all claims which it may have or acquire
against Borrower or against any assignee or trustee in bankruptcy of Borrower;
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provided however, that such assignment shall be effective only for the purpose
of assuring to Lender full payment in legal tender of Indebtedness. If Lender so
requests, any notes or credit agreements now or hereafter evidencing any debts
or obligations of Borrower to Guarantor shall be marked with a legend that the
same are subject to this Guaranty and shall be delivered to Lender. Guarantor
agrees, and Lender hereby is authorized, in the name of Guarantor, from time to
time to execute and file financing statements and continuation statements and to
execute such other documents and to take such other actions as Lender deems
necessary or appropriate to perfect, preserve and enforce its rights under this
Guaranty.
FINANCIAL STATEMENTS. If requested by Lender, Guarantor shall furnish Lender
with, as soon as available, but in no event later then 90 days after the end of
each fiscal quarter, Guarantor's balance sheet anal income statement for the
year ended, reviewed by a certified public accountant reasonably satisfactory to
Lender.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty:
AMENDMENTS. This Guaranty, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Guaranty. No alteration of or amendment to
this Guaranty shall be effective unless given in writing and signed by
the party or parties sought to be charged or bound by the alteration or
amendment.
APPLICABLE LAW. LENDER AND GUARANTOR HEREBY WAIVE THE RIGHT TO ANY JURY
TRIAL IN ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER LENDER OR
GUARANTOR AGAINST THE OTHER. THIS GUARANTY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OREGON.
ATTORNEY'S FEES; EXPENSES. Guarantor agrees to pay upon demand all of
Lender's costs and expenses, including attorneys' fees and legal
expenses, incurred in connection with the enforcement of this Guaranty.
Lender may pay someone else to help enforce this Guaranty, and Guarantor
shall pay the costs and expenses of such enforcement. Costs and expenses
include Lender's attorneys' fees and legal expenses whether or not there
is a lawsuit, including attorneys' fees and legal expenses for
arbitration and bankruptcy proceedings (and including efforts to modify
or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Guarantor also shall pay
all court costs and such additional fees as may be directed by the
court.
NOTICES. All notices required to be given by either party to the other
under this Guaranty shall be in writing and shall be effective when
actually delivered or when deposited in the United States mail, first
class postage prepaid, addressed to the party to whom the notice is to
be given at, the address shown above or to such other addresses as
either party may designate to the other in writing. If there is more
than one Guarantor, notice to the Guarantor will constitute notice to
all Guarantors. For notice purposes, Guarantor agrees to keep Lender
informed at all times of Guarantor's current address.
INTERPRETATION. In all cases where there is more than one Borrower or
Guarantor, then all words used in this Guaranty in the singular shall be
deemed to have been used in the plural where the context and
construction so require; and where there is more than one Borrower named
in this Guaranty or when
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this Guaranty is executed by more than one Guarantor, the words
"Borrower" and Guarantor" respectively shall mean all and any one or
more of them. Each Guarantor hereunder is jointly and severally liable
with each and every other Guarantor hereunder. The words "Guarantor,"
"Borrower," and "Lender" include the heirs, successors, assigns, and
transferees of each of them. Caption headings in this Guaranty are for
convenience purposes only and are not to be used to interpret or define
the provisions of this Guaranty. If a court of competent jurisdiction
finds any provision invalid or unenforceable as to any person or
circumstance, such finding shall not render that provision invalid or
unenforceable as to any other persons or circumstances, and all
provision of this Guaranty in all other respects shall remain valid and
enforceable. If any one or more of Borrower or Guarantor are
corporations or partnerships, it is not necessary for Lender to inquire
into the powers of Borrower or Guarantor or of the officers, directors,
partners, or agents acting or purporting to act on their behalf, and any
Indebtedness made or created in reliance upon the professed exercise of
such powers shall he guaranteed under this Guaranty.
WAIVER. Lender shall not be deemed to have waived any rights under this
Guaranty unless such waiver is given in writing and signed by Lender. No
delay or omission on the part of Lender in exercising any right shall
operate as a waiver of such right or any other right. A waiver by Lender
of a provision of this Guaranty shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Guaranty. No prior waiver by
Lender. nor any course of dealing between Lender and Guarantor, shall
constitute a waiver of any of Lender's rights or of any of Guarantor's
obligations as to any future transactions. Whenever the consent of
Lender is required under this Guaranty, the granting of such consent by
Lender in any instance shall not constitute continuing consent to
subsequent instances where such consent is required and in all cases
such consent may be granted or withhold in the, sole discretion of
Lender.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT
THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS
GUARANTY TO LENDER. NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS
GUARANTY EFFECTIVE. THIS GUARANTY IS DATED APRIL 17, 2000.
GRANTOR
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Commercial Guaranty
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