EXHIBIT 10.58
AMENDED AND RESTATED SPECIFIC GUARANTY
THIS AMENDED AND RESTATED SPECIFIC GUARANTY (this "Guaranty") dated the 17th day
of May, 2000, is executed by the undersigned, ▇▇▇▇, L.L.C., whose address for
notice hereunder is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Guarantor") in favor of THE ▇▇▇▇▇▇▇▇▇ FOUNDATION, whose address for notice
hereunder is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇").
1. Obligations. As an inducement to ▇▇▇▇▇▇▇▇▇ to extend or continue to
extend credit and other financial accommodations to KARTS INTERNATIONAL
INCORPORATED, a Nevada corporation ("Borrower") pursuant to the terms
of that certain Amended and Restated Loan Agreement dated as of May 17,
2000 between Borrower and ▇▇▇▇▇▇▇▇▇ (as the same may be amended from
time to time, the "Loan Agreement"), Guarantor, for value received,
does hereby unconditionally and absolutely guarantee the prompt and
full payment and performance of the Guaranteed Indebtedness when due or
declared to be due and at all times thereafter. The term "Guaranteed
Indebtedness" shall mean (i) all amounts owing by Borrower under that
certain Amended and Restated Term Note of even date herewith payable by
Borrower to the order of ▇▇▇▇▇▇▇▇▇ in the stated principal amount of
$2,500,000.00, (the "Note"), (ii) all other Obligations (hereinafter as
defined in the Loan Agreement) of Borrower to ▇▇▇▇▇▇▇▇▇, (iii) all
costs and expenses incurred by ▇▇▇▇▇▇▇▇▇ in connection with the
collection of all or any part of the indebtedness and obligations owing
by Borrower under the Note and/or any of the other Loan Documents
(hereinafter as defined in the Loan Agreement), or the protection of,
or realization upon, the collateral securing all or any part of such
indebtedness and obligations, (iv) all renewals, extensions,
modifications and rearrangements of the Obligations. This is an
absolute, continuing and unconditional guarantee of payment and not of
collection and if at any time or from time to time there is no
outstanding Guaranteed Indebtedness, the obligations of Guarantor with
respect to any and all Guaranteed Indebtedness incurred thereafter
shall not be affected. This Guaranty and the Guarantor's obligations
hereunder are irrevocable and, in the event of Guarantor's death, shall
be binding upon Guarantor's estate pursuant to paragraph 8 herein. All
of the Guaranteed Indebtedness shall be conclusively presumed to have
been made or acquired in acceptance hereof. Guarantor shall be liable,
jointly and severally, with Borrower and any other guarantor of all or
any part of the Guaranteed Indebtedness.
2. Representations and Warranties. Guarantor hereby represents and
warrants the following to ▇▇▇▇▇▇▇▇▇:
(a) This Guaranty may reasonably be expected to benefit, directly
or indirectly, Guarantor, and (i) if Guarantor is a
corporation, the Board of Directors of Guarantor has
determined that this Guaranty may reasonably be expected to
benefit, directly or indirectly, Guarantor, or (ii) if
Guarantor is a partnership, the requisite number of its
partners have determined that this Guaranty may reasonably be
expected to benefit, directly or indirectly, Guarantor; and
(b) Guarantor has adequate means to obtain from Borrower on a
continuing basis information concerning the financial
condition of Borrower and Guarantor is not relying on
▇▇▇▇▇▇▇▇▇ to provide such information to Guarantor either now
or in the future; and
Specific Guaranty 05/28/99
1
(c) Guarantor has the power and authority to execute, deliver and
perform this Guaranty and any other agreements executed by
Guarantor contemporaneously herewith, and the execution,
delivery and performance of this Guaranty and any other
agreements executed by Guarantor contemporaneously herewith do
not and will not violate (i) any agreement or instrument to
which Guarantor is a party, (ii) any law, rule, regulation or
order of any governmental authority to which Guarantor is
subject, or (iii) its articles or certificate of incorporation
or bylaws, if Guarantor is a corporation, or its partnership
agreement, if Guarantor is a partnership; and
(d) Neither ▇▇▇▇▇▇▇▇▇ nor any other party has made any
representation, warranty or statement to Guarantor in order to
induce Guarantor to execute this Guaranty; and
(e) The financial statements and other financial information
regarding Guarantor heretofore and hereafter delivered to
▇▇▇▇▇▇▇▇▇ are and shall be true and correct in all material
respects and fairly present the financial position of
Guarantor as of the dates thereof, and no material adverse
change has occurred in the financial condition of Guarantor
reflected in the financial statements and other financial
information regarding Guarantor heretofore delivered to
▇▇▇▇▇▇▇▇▇ since the date of the last statement thereof; and
(f) As of the date hereof, and after giving effect to this
Guaranty and the obligations evidenced hereby, (i) Guarantor
is and will be solvent, (ii) the fair saleable value of
Guarantor's assets exceeds and will continue to exceed its
liabilities (both fixed and contingent), (iii) Guarantor is
and will continue to be able to pay its debts as they mature,
and (iv) if Guarantor is not an individual, Guarantor has and
will continue to have sufficient capital to carry on its
business and all businesses in which it is about to engage;
and
(g) Guarantor, together with Borrower and the other Obligors
defined in the Loan Agreement, are a combined enterprise with
a common purpose, each dependent on the other, and the
successful operations and viability of any one of them enures
to the benefit of each of them. Guarantor has determined that
the availability of credit to Borrower, and the ability of
Borrower to make proceeds of such credit available for its
respective subsidiaries, is of direct and indirect benefit to
it, of equivalent value, and that execution and performance of
this Guaranty is in its best interest; and
(h) Except as may be set out on any exhibit attached hereto or as
disclosed in the Borrower's annual report on form 10-K filed
with the SEC for the year ended December 31, 1999 or the
Borrower's quarterly report on form 10-Q filed with the SEC
for the quarter ended March 31, 2000, (i) there are no legal
proceedings, material claims or demands pending or, to the
knowledge of Guarantor, threatened against Guarantor or any of
Guarantor's assets, (ii) Guarantor is not in material breach
or material default of any legal requirement; and (iii) no
event has occurred which, with a lapse of time or action by a
third party, could result in Guarantor's material breach or
material default under any legal requirement.
Specific Guaranty 05/28/99
2
3. Covenants. Guarantor hereby covenants and agrees with ▇▇▇▇▇▇▇▇▇ as
follows:
(a) Guarantor shall not, so long as its obligations under this
Guaranty continue, transfer or pledge any material portion of
its assets for less than full and adequate consideration; and
(b) Guarantor shall promptly furnish to ▇▇▇▇▇▇▇▇▇ at any time and
from time to time such financial statements and other
financial information of Guarantor as ▇▇▇▇▇▇▇▇▇ may require,
in form and substance satisfactory to ▇▇▇▇▇▇▇▇▇ (including,
without limitation, annual financial statements within 45 days
after the end of each calendar year); and
(c) Guarantor shall promptly inform ▇▇▇▇▇▇▇▇▇ of (i) any
litigation or governmental investigation against Guarantor or
affecting any security for all or any part of the Guaranteed
Indebtedness or this Guaranty which, if determined adversely,
might have a material adverse effect upon the financial
condition of Guarantor or upon such security or might cause a
default under any of the Loan Documents, (ii) any claim or
controversy which might become the subject of such litigation
or governmental investigation, and (iii) any material adverse
change in the financial condition of Guarantor; and
(d) Guarantor hereby subordinates all indebtedness now or
hereafter owing by Borrower to Guarantor to the Guaranteed
Indebtedness.
4. Consent and Waiver.
(a) Guarantor waives (i) promptness, diligence and notice of
acceptance of this Guaranty and notice of the incurring of any
obligation, indebtedness or liability to which this Guaranty
applies or may apply and waives presentment for payment,
notice of nonpayment, protest, demand, notice of protest,
notice of intent to accelerate, notice of acceleration, notice
of dishonor, diligence in enforcement and indulgences of every
kind, and (ii) the taking of any other action by ▇▇▇▇▇▇▇▇▇,
including without limitation giving any notice of default or
any other notice to, or making any demand on, Borrower, any
other guarantor of all or any part of the Guaranteed
Indebtedness or any other party.
(b) ▇▇▇▇▇▇▇▇▇ may at any time, without the consent of or notice to
Guarantor, without incurring responsibility to Guarantor and
without impairing, releasing, reducing or affecting the
obligations of Guarantor hereunder: (i) change the manner,
place or terms of payment of all or any part of the Guaranteed
Indebtedness, or renew, extend, modify, rearrange or alter all
or any part of the Guaranteed Indebtedness; (ii) change the
interest rate accruing on any of the Guaranteed Indebtedness
(including, without limitation, any periodic change in such
interest rate that occurs because such Guaranteed Indebtedness
accrues interest at a variable rate which may fluctuate from
time to time); (iii) sell, exchange, release, surrender,
subordinate, realize upon or otherwise deal with in any manner
and in any order any collateral for all or any part of the
Guaranteed Indebtedness or this Guaranty or setoff against all
or any part of the Guaranteed Indebtedness; (iv) neglect,
delay, omit, fail or refuse to take or prosecute any action
for the collection of all or any part of the Guaranteed
Indebtedness or this Guaranty or to take or prosecute any
action in connection with any of the Loan Documents; (v)
exercise or refrain from exercising any rights against
Borrower or others, or otherwise act or refrain from acting;
(vi) settle or compromise all or any part of the Guaranteed
Indebtedness and subordinate the payment of all or any part of
the Guaranteed Indebtedness to the payment of any obligations,
indebtedness or liabilities which may be due or become due to
▇▇▇▇▇▇▇▇▇ or others; (vii) apply any payment, collections
through process of law or otherwise or other collateral of
Borrower to the satisfaction and liquidation of the
indebtedness or obligations of Borrower to ▇▇▇▇▇▇▇▇▇ not
guaranteed under this Guaranty; and (viii) apply any sums paid
to ▇▇▇▇▇▇▇▇▇ by Guarantor, Borrower or others to the
Guaranteed Indebtedness in such order and manner as ▇▇▇▇▇▇▇▇▇,
in its sole discretion, may determine.
Specific Guaranty 05/28/99
3
(c) Should ▇▇▇▇▇▇▇▇▇ seek to enforce the obligations of Guarantor
hereunder by action in any court or otherwise, Guarantor
waives any requirement, substantive or procedural, that (i)
▇▇▇▇▇▇▇▇▇ first enforce any rights or remedies against
Borrower or any other person or entity liable to ▇▇▇▇▇▇▇▇▇ for
all or any part of the Guaranteed Indebtedness, including
without limitation that a judgment first be rendered against
Borrower or any other person or entity, or that Borrower or
any other person or entity should be joined in such cause, or
(ii) ▇▇▇▇▇▇▇▇▇ first enforce rights against any collateral
which shall ever have been given to secure all or any part of
the Guaranteed Indebtedness or this Guaranty. Such waiver
shall be without prejudice to ▇▇▇▇▇▇▇▇▇'▇ right, at its
option, to proceed against Borrower or any other person or
entity, whether by separate action or by joinder.
(d) In addition to any other waivers, agreements and covenants of
Guarantor set forth herein, Guarantor hereby further waives
and releases all claims, causes of action, defenses and
offsets for any act or omission of ▇▇▇▇▇▇▇▇▇, its directors,
officers, employees, representatives or agents in connection
with ▇▇▇▇▇▇▇▇▇'▇ administration of the Guaranteed
Indebtedness, except for ▇▇▇▇▇▇▇▇▇'▇ willful misconduct and
gross negligence.
5. Obligations Not Impaired.
(a) Guarantor agrees that its obligations hereunder shall not be
released, diminished, impaired, reduced or affected by the
occurrence of any one or more of the following events: (i) the
death, disability or lack of corporate power of Borrower,
Guarantor (except as provided in paragraph 8 herein) or any
other guarantor of all or any part of the Guaranteed
Indebtedness, (ii) any receivership, insolvency, bankruptcy or
other proceedings affecting Borrower, Guarantor or any other
guarantor of all or any part of the Guaranteed Indebtedness,
or any of their respective property; (iii) the partial or
total release or discharge of Borrower or any other guarantor
of all or any part of the Guaranteed Indebtedness, or any
other person or entity from the performance of any obligation
contained in any instrument or agreement evidencing, governing
or securing all or any part of the Guaranteed Indebtedness,
whether occurring by reason of law or otherwise; (iv) the
taking or accepting of any collateral for all or any part of
the Guaranteed Indebtedness or this Guaranty; (v) the taking
or accepting of any other guaranty for all or any part of the
Guaranteed Indebtedness; (vi) any failure by ▇▇▇▇▇▇▇▇▇ to
acquire, perfect or continue any lien or security interest on
collateral securing all or any part of the Guaranteed
Indebtedness or this Guaranty; (vii) the impairment of any
collateral securing all or any part of the Guaranteed
Indebtedness or this Guaranty; (viii) any failure by ▇▇▇▇▇▇▇▇▇
to sell any collateral securing all or any part of the
Guaranteed Indebtedness or this Guaranty in a commercially
reasonable manner or as otherwise required by law; (ix) any
invalidity or unenforceability of or defect or deficiency in
any of the Loan Documents; or (x) any other circumstance which
might otherwise constitute a defense available to, or
discharge of, Borrower or any other guarantor of all or any
part of the Guaranteed Indebtedness.
Specific Guaranty 05/28/99
4
(b) This Guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of all or any
part of the Guaranteed Indebtedness is rescinded or must
otherwise be returned by ▇▇▇▇▇▇▇▇▇ upon the insolvency,
bankruptcy or reorganization of Borrower, Guarantor, any other
guarantor of all or any part of the Guaranteed Indebtedness,
or otherwise, all as though such payment had not been made.
(c) Guarantor agrees that its obligations hereunder shall not be
released, diminished, impaired, reduced or affected by the
existence of any other guaranty or the payment by any other
guarantor of all or any part of the Guaranteed Indebtedness.
(d) Guarantor's obligations hereunder shall not be released,
diminished, impaired, reduced or affected by, nor shall any
provision contained herein be deemed to be a limitation upon,
the amount of credit which ▇▇▇▇▇▇▇▇▇ may extend to Borrower,
the number of transactions between ▇▇▇▇▇▇▇▇▇ and Borrower,
payments by Borrower to ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇'▇ allocation of
payments by Borrower.
(e) In the event Borrower is a corporation or partnership, none of
the following shall affect Guarantor's liability hereunder:
(i) the unenforceability of all or any part of the Guaranteed
Indebtedness against Borrower by reason of the fact that the
Guaranteed Indebtedness exceeds the amount permitted by law;
(ii) the act of creating all or any part of the Guaranteed
Indebtedness is ultra ▇▇▇▇▇; or (iii) the officers or partners
creating all or any part of the Guaranteed Indebtedness acted
in excess of their authority. Guarantor hereby acknowledges
that withdrawal from, or termination of, any ownership
interest in Borrower now or hereafter owned or held by
Guarantor shall not alter, affect or in any way limit the
obligations of Guarantor hereunder.
6. Actions against Guarantor. In the event of a default in the payment or
performance of all or any part of the Guaranteed Indebtedness when such
Guaranteed Indebtedness becomes due, whether by its terms, by
acceleration or otherwise, Guarantor shall pay the amount due thereon
to ▇▇▇▇▇▇▇▇▇, in lawful money of the United States, at ▇▇▇▇▇▇▇▇▇'▇
address set forth above within 5 days after demand thereof by
▇▇▇▇▇▇▇▇▇. One or more successive or concurrent actions may be brought
against Guarantor, either in the same action in which Borrower is sued
or in separate actions, as often as ▇▇▇▇▇▇▇▇▇ deems advisable. The
exercise by ▇▇▇▇▇▇▇▇▇ of any right or remedy under this Guaranty or
under any other agreement or instrument, at law, in equity or
otherwise, shall not preclude concurrent or subsequent exercise of any
other right or remedy. The books and records of ▇▇▇▇▇▇▇▇▇ shall be
admissible in evidence in any action or proceeding involving this
Guaranty and shall be prima facie evidence of the payments made on, and
the outstanding balance of, the Guaranteed Indebtedness.
Specific Guaranty 05/28/99
5
7. Payment by Guarantor. Whenever Guarantor pays any sum which is or may
become due under this Guaranty, written notice must be delivered to
▇▇▇▇▇▇▇▇▇ contemporaneously with such payment. In the absence of such
notice to ▇▇▇▇▇▇▇▇▇ by Guarantor in compliance with the provisions
hereof, any sums received by ▇▇▇▇▇▇▇▇▇ on account of the Guaranteed
Indebtedness shall be conclusively deemed paid by Borrower.
8. Death of Guarantor. In the event of the death of Guarantor, the
obligations of the deceased Guarantor under this Guaranty shall
continue as an obligation against Guarantor's estate as to (a) all of
the Guaranteed Indebtedness that is outstanding on the date of
Guarantor's death, and any renewals or extensions thereof, and (b) all
loans, advances and other extensions of credit made to or for the
account of Borrower on or after the date of Guarantor's death pursuant
to an obligation of ▇▇▇▇▇▇▇▇▇ under a commitment or agreement described
in paragraph 1 above and made to or with Borrower prior to the date of
Guarantor's death. The terms and conditions of this Guaranty, including
without limitation the consents and waivers set forth in paragraph 4
hereof, shall remain in effect with respect to the Guaranteed
Indebtedness described in the preceding sentence in the same manner as
if Guarantor had not died.
9. Notice of Sale. In the event that Guarantor is entitled to receive any
notice under the Uniform Commercial Code, as it exists in the state
governing any such notice, of the sale or other disposition of any
collateral securing all or any part of the Guaranteed Indebtedness or
this Guaranty, reasonable notice shall be deemed given when such notice
is deposited in the United States mail, postage prepaid, at the address
for Guarantor set forth on the first page of this Guaranty, five (5)
days prior to the date any public sale, or after which any private
sale, of any such collateral is to be held; provided, however, that
notice given in any other reasonable manner or at any other reasonable
time shall be sufficient.
10. Waiver by ▇▇▇▇▇▇▇▇▇. No delay on the part of ▇▇▇▇▇▇▇▇▇ in exercising
any right hereunder or failure to exercise the same shall operate as a
waiver of such right. In no event shall any waiver of the provisions of
this Guaranty be effective unless the same be in writing and signed by
an officer of ▇▇▇▇▇▇▇▇▇, and then only in the specific instance and for
the purpose given.
11. Successors and Assigns. This Guaranty is for the benefit of ▇▇▇▇▇▇▇▇▇,
its successors and assigns, and in the event of an assignment by
▇▇▇▇▇▇▇▇▇ of the Guaranteed Indebtedness, or any part thereof, the
rights and benefits hereunder shall be transferred with such
indebtedness. This Guaranty is binding upon Guarantor and Guarantor's
heirs, executors, administrators, personal representatives and
successors, including without limitation any person or entity obligated
by operation of law upon the reorganization, merger, consolidation or
other change in the organizational structure of Guarantor.
Specific Guaranty 05/28/99
6
12. Costs and Expenses. Guarantor shall pay on demand by ▇▇▇▇▇▇▇▇▇ all
costs and expenses, including without limitation all reasonable
attorneys' fees, incurred by ▇▇▇▇▇▇▇▇▇ in connection with the
enforcement and/or collection of this Guaranty. This covenant shall
survive the payment of the Guaranteed Indebtedness.
13. Severability. If any provision of this Guaranty is held by a court of
competent jurisdiction to be illegal, invalid or unenforceable under
present or future laws, such provision shall be fully severable, shall
not impair or invalidate the remainder of this Guaranty and the effect
thereof shall be confined to the provision held to be illegal, invalid
or unenforceable.
14. No Obligation. Nothing contained herein shall be construed as an
obligation on the part of ▇▇▇▇▇▇▇▇▇ to extend or continue to extend
credit to Borrower.
15. Amendment. No modification or amendment of any provision of this
Guaranty, nor consent to any departure by Guarantor therefrom, shall be
effective unless the same shall be in writing and signed by an officer
of ▇▇▇▇▇▇▇▇▇, and then shall be effective only in the specific instance
and for the purpose for which given.
16. Cumulative Rights. All rights and remedies of ▇▇▇▇▇▇▇▇▇ hereunder are
cumulative of each other and of every other right or remedy which
▇▇▇▇▇▇▇▇▇ may otherwise have at law or in equity or under any
instrument or agreement, and the exercise of one or more of such rights
or remedies shall not prejudice or impair the concurrent or subsequent
exercise of any other rights or remedies.
17. Governing Law; Venue; Submission to Jurisdiction. THIS GUARANTY SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF TEXAS WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS
THEREOF. THIS GUARANTY IS PERFORMABLE IN DALLAS COUNTY, TEXAS.
GUARANTOR AGREES THAT DALLAS COUNTY, TEXAS SHALL BE THE EXCLUSIVE VENUE
FOR LITIGATION OF ANY DISPUTE OR CLAIM ARISING UNDER OR RELATING TO
THIS GUARANTY, AND THAT SUCH COUNTY IS A CONVENIENT FORUM IN WHICH TO
DECIDE ANY SUCH DISPUTE OR CLAIM. GUARANTOR CONSENTS TO THE PERSONAL
JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN DALLAS COUNTY,
TEXAS FOR THE LITIGATION OF ANY SUCH DISPUTE OR CLAIM. GUARANTOR
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
Specific Guaranty 05/28/99
7
18. Compliance with Applicable Usury Laws. Notwithstanding any other
provision of this Guaranty or of any instrument or agreement
evidencing, governing or securing all or any part of the Guaranteed
Indebtedness, Guarantor and ▇▇▇▇▇▇▇▇▇ by its acceptance hereof agree
that Guarantor shall never be required or obligated to pay interest in
excess of the maximum nonusurious interest rate as may be authorized by
applicable law for the written contracts which constitute the
Guaranteed Indebtedness. It is the intention of Guarantor and ▇▇▇▇▇▇▇▇▇
to conform strictly to the applicable laws which limit interest rates,
and any of the aforesaid contracts for interest, if and to the extent
payable by Guarantor, shall be held to be subject to reduction to the
maximum nonusurious interest rate allowed under said law.
19. Descriptive Headlines. The headings in this Guaranty are for
convenience only and shall not define or limit the provisions hereof.
20. Gender. Within this Guaranty, words of any gender shall be held and
construed to include the other gender.
21. Limitation regarding Guaranteed Indebtedness. Notwithstanding anything
to the contrary contained in this Guaranty, the Guaranteed Indebtedness
of Guarantor hereunder shall not exceed an aggregate amount equal to
the greatest amount that would not render Guarantor's indebtedness,
liabilities or obligations under this Guaranty subject to avoidance
under Sections 544, 548 or 550 of the Federal Bankruptcy Code or
subject to being set aside or annulled under any applicable state law
relating to fraud on creditors; provided, however, that, for purposes
of the immediately preceding clause, it shall be presumed that the
Guaranteed Indebtedness of Guarantor under this Guaranty do not equal
or exceed any aggregate amount which would render Guarantor's
indebtedness, liabilities or obligations under this Guaranty subject to
being so avoided, set aside or annulled, and the burden of proof to the
contrary shall be on the party asserting to the contrary. Subject to
but without limiting the generality of the foregoing sentence, the
provisions of this Guaranty are severable and, in any legally binding
action or proceeding involving any state corporate law or any
bankruptcy, insolvency or other laws of general application relating to
the enforcement of creditors' rights and general principles of equity,
if the indebtedness, liabilities or obligations of Guarantor under this
Guaranty would otherwise be held or determined to be void, invalid or
unenforceable on account of the amount of its indebtedness, liabilities
or obligations under this Guaranty, then, notwithstanding any other
provision of this Guaranty to the contrary, the amount of such
indebtedness, liabilities or obligations shall, without any further
action by Guarantor or ▇▇▇▇▇▇▇▇▇, be automatically limited and reduced
to the greatest amount which is valid and enforceable as determined in
such action or proceeding.
22. Notices. All notices hereunder shall be in writing and shall be
personally delivered or sent by registered or certified mail, return
receipt requested, to the address for ▇▇▇▇▇▇▇▇▇ and Guarantor set forth
on the first page of this Guaranty. ▇▇▇▇▇▇▇▇▇ and Guarantor may, by
proper written notice hereunder, change the address to which notices
may be sent thereafter to such party.
23. Entire Agreement. This Guaranty contains the entire agreement between
Guarantor and ▇▇▇▇▇▇▇▇▇ regarding the subject matter hereof and
supersedes all prior written and oral agreements and understandings, if
any, regarding same; provided, however, this Guaranty is in addition to
and does not replace, cancel, modify or affect any other guaranty of
Guarantor now or hereafter held by ▇▇▇▇▇▇▇▇▇ that relates to Borrower
or any other person or entity.
Specific Guaranty 05/28/99
8
24. WAIVER OF JURY TRIAL. GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE
MAXIMUM EXTENT PERMITTED BY LAW, ANY RIGHT GUARANTOR MAY HAVE TO A
TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY AT
ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR
ANY TRANSACTION CONTEMPLATED HEREBY OR ASSOCIATED HEREWITH.
25. NOTICE OF NO ORAL AGREEMENTS. THIS GUARANTY REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES HERETO WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED HEREIN AND MAY NOT CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
26. Amendment and Restatement of Original Guaranty. Effective as of the
date hereof, this Agreement shall constitute an amendment and
restatement of all, but not an extinguishment, discharge, satisfaction
or novation of any, indebtedness liabilities and/or obligations of
Borrower under that certain Specific Guaranty dated June 3, 1999
executed by Guarantor to and in favor of ▇▇▇▇▇▇▇▇▇.
EXECUTED AND EFFECTIVE as of the date first set forth above.
GUARANTOR:
▇▇▇▇, L.L.C.
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Specific Guaranty 05/28/99
9