Exhibit 99.2
CORPORATE GUARANTY
Date: _____________ ___, 2004
General Electric Capital Corporation, together with its successors and assigns
0 Xxxxx Xxxx Xxxxx Xxxxx 000
Xxxx Xxxxxx, XX 00000
To induce you to enter into, purchase or otherwise acquire, now or at
any time hereafter, any promissory notes, security agreements, chattel
mortgages, pledge agreements, conditional sale contracts, lease agreements,
and/or any other documents or instruments evidencing, or relating to, any lease,
loan, extension of credit or other financial accommodation (collectively
"Account Documents" and each an "Account Document") to Xxxxx & Xxxxxxxxx of
Boston, LLC, a Delaware Limited Liability Company, Houston, S&W, L.P., a Texas
Limited Partnership, and Dallas S & W, L.P., a Texas Limited Partnership (each a
and collectively the "Customer"), but without in any way binding you to do so,
the undersigned, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, does hereby guarantee to you, your
successors and assigns, the due regular and punctual payment of any sum or sums
of money which any Customer may owe to you now or at any time hereafter, whether
evidenced by an Account Document, on open account or otherwise, and whether it
represents principal, interest, rent, late charges, indemnities, an original
balance, an accelerated balance, liquidated damages, a balance reduced by
partial payment, a deficiency after sale or other disposition of any leased
equipment, collateral or security, or any other type of sum of any kind
whatsoever that any Customer may owe to you now or at any time hereafter, and
does hereby further guarantee to you, your successors and assigns, the due,
regular and punctual performance of any other duty or obligation of any kind or
character whatsoever that any Customer may owe to you now or at any time
hereafter (all such payment and performance obligations being collectively
referred to as "Obligations"). Undersigned does hereby further guarantee to pay
upon demand all losses, costs, attorneys' fees and expenses which may be
suffered by you by reason of any Customer's default or default of the
undersigned. As used in this Guaranty, "you" shall mean General Electric Capital
Corporation and all its subsidiaries and "Customer" shall mean any or all of the
Customers.
This Guaranty is a guaranty of prompt payment and performance (and not
merely a guaranty of collection). Nothing herein shall require you to first seek
or exhaust any remedy against the Customer, its successors and assigns, or any
other person obligated with respect to the Obligations, or to first foreclose,
exhaust or otherwise proceed against any leased equipment, collateral or
security which may be given in connection with the Obligations. It is agreed
that you may, upon any breach or default of the Customer, or at any time
thereafter, make demand upon the undersigned and receive payment and performance
of the Obligations, with or without notice or demand for payment or performance
by the Customer, its successors or assigns, or any other person. Suit may be
brought and maintained against the undersigned, at your election, without
joinder of the Customer or any other person as parties thereto. The obligations
of each signatory to this Guaranty shall be joint and several.
The undersigned agrees that its obligations under this Guaranty shall
be primary, absolute, continuing and unconditional, irrespective of and
unaffected by any of the following actions or circumstances (regardless of any
notice to or consent of the undersigned): (a) the genuineness, validity,
regularity and enforceability of the Account Documents or any other document;
(b) any extension, renewal, amendment, change, waiver or other modification of
the Account Documents or any other document; (c) the
absence of, or delay in, any action to enforce the Account Documents, this
Guaranty or any other document; (d) your failure or delay in obtaining any other
guaranty of the Obligations (including, without limitation, your failure to
obtain the signature of any other guarantor hereunder); (e) the release of,
extension of time for payment or performance by, or any other indulgence granted
to the Customer or any other person with respect to the Obligations by operation
of law or otherwise; (f) the existence, value, condition, loss, subordination or
release (with or without substitution) of, or failure to have title to or
perfect and maintain a security interest in, or the time, place and manner of
any sale or other disposition of any leased equipment, collateral or security
given in connection with the Obligations, or any other impairment (whether
intentional or negligent, by operation of law or otherwise) of the rights of the
undersigned; (g) the Customer's voluntary or involuntary bankruptcy, assignment
for the benefit of creditors, reorganization, or similar proceedings affecting
the Customer or any of its assets; or (h) any other action or circumstances
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor.
This Guaranty, the Account Documents and the Obligations may be
assigned by you, without the consent of the Undersigned. The Undersigned agrees
that if it receives written notice of an assignment from you, the Undersigned
will pay all amounts due hereunder to such assignee or as instructed by you. The
Undersigned also agrees to confirm in writing receipt of the notice of
assignment as may be reasonably requested by assignee. The Undersigned hereby
waives and agrees not to assert against any such assignee any of the defenses
set forth in the immediate preceding paragraph.
This Guaranty may be terminated upon delivery to you (at your address
shown above) of a written termination notice from the undersigned. However, as
to all Obligations (whether matured, unmatured, absolute, contingent or
otherwise) incurred by the Customer prior to your receipt of such written
termination notice (and regardless of any subsequent amendment, extension or
other modification which may be made with respect to such Obligations), this
Guaranty shall nevertheless continue and remain undischarged until all such
Obligations are indefeasibly paid and performed in full.
The undersigned agrees that this Guaranty shall remain in full force
and effect or be reinstated (as the case may be) if at any time payment or
performance of any of the Obligations (or any part thereof) is rescinded,
reduced or must otherwise be restored or returned by you, all as though such
payment or performance had not been made. If, by reason of any bankruptcy,
insolvency or similar laws effecting the rights of creditors, you shall be
prohibited from exercising any of your rights or remedies against the Customer
or any other person or against any property, then, as between you and the
undersigned, such prohibition shall be of no force and effect, and you shall
have the right to make demand upon, and receive payment from, the undersigned of
all amounts and other sums that would be due to you upon a default with respect
to the Obligations.
The undersigned covenants and agrees that: (a) it will provide to you:
(1) within ninety (90) days after the end of each of its fiscal years, its
balance sheet and related statement of income and statement of cash flows of
Guarantor, prepared in accordance with generally accepted accounting principles
consistently applied ("GAAP"), all in reasonable detail and certified by
independent certified public accountants of recognized standing selected by the
undersigned; (2) within sixty (60) days after the end of each quarter of its
fiscal year, its balance sheet and related statement of income and statement of
cash flows for such quarter, internally prepared in accordance with GAAP and
certified by its chief financial officer; and (3) within thirty (30) days after
the date on which they are filed, all regular periodic reports, forms and other
filings required to be made by the undersigned to the Securities and Exchange
Commission, including (without limitation) Forms 8Q, 10K and 10Q; and (b) it
will promptly execute and deliver to you such further documents, instruments and
assurances and take such further action as you from time to time reasonably may
request in order to carry out the intent and purpose of this Guaranty and to
establish and protect the rights and remedies created or intended to be created
in your favor hereunder.
Notice of acceptance of this Guaranty and of any default by the
Customer or any other person is hereby waived. Presentment, protest demand, and
notice of protest, demand and dishonor of any of the Obligations, and the
exercise of possessory, collection or other remedies for the Obligations, are
hereby
waived. The undersigned warrants that it has adequate means to obtain from the
Customer on a continuing basis financial data and other information regarding
the Customer and is not relying upon you to provide any such data or other
information. Without limiting the foregoing, notice of adverse change in the
Customer's financial condition or of any other fact which might materially
increase the risk of the undersigned is also waived. All settlements,
compromises, accounts stated and agreed balances made in good faith between the
Customer, its successors or assigns, and you shall be binding upon and shall not
affect the liability of the undersigned.
Payment of all amounts now or hereafter owed to the undersigned by the
Customer or any other obligor for any of the Obligations is hereby subordinated
in right of payment to the indefeasible payment in full to you of all
Obligations and is hereby assigned to you as a security therefor. The
undersigned hereby irrevocably and unconditionally waives and relinquishes all
statutory, contractual, common law, equitable and all other claims against the
Customer, any other obligor for any of the Obligations, any collateral therefor,
or any other assets of the Customer or any such other obligor, for subrogation,
reimbursement, exoneration, contribution, indemnification, setoff or other
recourse in respect of sums paid or payable to you by the undersigned hereunder,
and the undersigned hereby further irrevocably and unconditionally waives and
relinquishes any and all other benefits which it might otherwise directly or
indirectly receive or be entitled to receive by reason of any amounts paid by,
or collected or due from, it, the Customer or any other obligor for any of the
Obligations, or realized from any of their respective assets.
THE UNDERSIGNED HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, ANY OF THE RELATED
DOCUMENTS, ANY DEALINGS BETWEEN US RELATING TO THE SUBJECT MATTER HEREOF OR
THEREOF, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN US. THE SCOPE
OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT
MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS).
THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
IN WRITING, AND SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, OR ANY
RELATED DOCUMENTS. IN THE EVENT OF LITIGATION, THIS GUARANTY MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
As used in this Guaranty, the word "person" shall include any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, or any government or any political
subdivision thereof.
This Guaranty is intended by the parties as a final expression of the
guaranty of the undersigned and is also intended as a complete and exclusive
statement of the terms thereof. No course of dealing, course of performance or
trade usage, nor any paid evidence of any kind, shall be used to supplement or
modify any of the terms hereof. Nor are there any conditions to the full
effectiveness of this Guaranty. This Guaranty and each of its provisions may
only be waived, modified, varied, released, terminated or surrendered, in whole
or in part, by a duly authorized written instrument signed by you. No failure by
you to exercise your rights hereunder shall give rise to any estoppel against
you, or excuse the undersigned from performing hereunder. Your waiver of any
right to demand performance hereunder shall not be a waiver of any subsequent or
other right to demand performance hereunder.
This Guaranty shall bind the undersigned's successors and assigns and
the benefits thereof shall extend to and include your successors and assigns. In
the event of default hereunder, you may at any time inspect undersigned's
records, or at your option, undersigned shall furnish you with a current
independent audit report.
If any provisions of this Guaranty are in conflict with any applicable
statute, rule or law, then such provisions shall be deemed null and void to the
extent that they may conflict therewith, but without invalidating any other
provisions hereof.
Each signatory on behalf of a corporate guarantor warrants that he had
authority to sign on behalf of such corporation and by so signing, to bind said
guarantor corporation hereunder.
THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERENED BY AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, REGARDLESS OF THE LOCATION OF ANY COLLATERAL OR THE CUSTOMER OR
GUARANTOR.
IN WITNESS WHEREOF, this Guaranty is executed the day and year above
written.
___________________________________
By: ___________________________________
(Signature)
Title: ___________________________________
(Officer's Title)
ATTEST: ___________________________________
Secretary/Assistant Secretary
