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EXHIBIT 10.1(e)
PAYMENT GUARANTY
This PAYMENT GUARANTY ("Guaranty") is made as of August 6, 1997, by
NHC HOLDINGS CORP., a Nevada corporation ("Guarantor"), in favor of BANK OF
AMERICA TEXAS, N.A. ("Bank").
FACTUAL BACKGROUND
A. Guarantor is executing this Guaranty to induce Bank to make a
loan (defined in Section 2 as the "Loan") to PACIFIC UNITED, L.P., a Texas
limited partnership ("Borrower") in the principal amount of Three Million Six
Hundred Seventy-Five Thousand and No/100 Dollars ($3,675,000.00). The Loan is
being made under a Construction Loan Agreement (the "Loan Agreement") entered
into as of the date hereof, between Bank and Borrower.
B. The Loan is evidenced by a promissory note (the "Note") made
payable to Bank in the principal amount of the Loan. The Note is secured by a
Deed of Trust, Security Agreement, Financing Statement and Assignment of Rental
("Deed of Trust") from the Borrower to Xxxxx X. Xxxxx, Trustee, covering
certain real and personal property, as therein described (all collectively, the
"Property"). The Note may also be secured by other collateral, as more fully
explained in the Loan Agreement.
C. This Guaranty is one of several Loan Documents, as defined and
designated in the Loan Agreement. The Loan Documents also include the Loan
Agreement, the Note, the Deed of Trust and certain other specified instruments
and agreements.
GUARANTY
1. Guaranty of Loan. Each Guarantor irrevocably,
unconditionally, and jointly and severally guarantees to Bank the full payment
of the Loan, and unconditionally agrees to pay Bank the full amount of the
Loan. This is a guaranty of payment, not of collection. Each Guarantor hereby
irrevocably and unconditionally covenants and agrees that it is liable for the
full amount of the Loan as primary obligor. If Borrower fails to pay the Loan,
or any part of it when due in accordance with its terms, after the giving of
all notices required by the Loan Documents or if Borrower fails to pay the Loan
or any part of it following the occurrence of an Event of Default (as such term
is defined in the Note), then Guarantor, or any of them, shall in lawful money
of the United States pay to Bank or order, on demand, all sums due and owing on
the Loan, including all interest, charges, fees and other sums, costs and
expenses. Bank agrees to give to Guarantor a copy of each notice of default
that Bank is required to give to Borrower contemporaneously with the giving of
such notice to Borrower.
2. Loan. In this Guaranty, the term "Loan" is broadly defined to
mean and include all primary, secondary, direct, indirect, fixed and contingent
obligations of Borrower to pay principal, interest, prepayment charges, late
charges, loan fees and any other fees, charges, sums, costs and expenses which
may be owing at any time under the Note or the other Loan Documents, as any or
all of them may from time to time be modified, amended, extended or renewed.
For purposes of this Guaranty, the Loan includes any and all such obligations
which may arise in connection with (a) any set aside letters and (b) any
advances made before recording of the Deed of Trust, and any interest rate
swaps or other transactions between Borrower and Bank which may afford interest
rate protection to all or part of the Loan. If the amount outstanding under
the Loan is determined by a court of competent jurisdiction, that determination
shall be conclusive and binding on Guarantor, regardless of whether Guarantor
was a party to the proceeding in which the determination was made or not.
Notwithstanding the foregoing, this Guaranty shall not extend to modifications
of the Loan Documents entered into without Guarantors written consent, to the
extent such modifications evidence additional advances
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to Borrower for the purpose of acquiring land not included within the Property
or to construct improvements not situated on the Property.
3. Rights of Bank. Guarantor authorizes Bank to perform any or
all of the following acts at any time in its sole discretion, all without
notice to any Guarantor and without affecting any Guarantor's obligations under
this Guaranty:
(a) Bank may alter any terms of the Loan or any part of
it, including renewing, compromising extending or accelerating, or otherwise
changing the time for payment of, or increasing or decreasing the rate of
interest on, the Loan or any part of it; provided, Bank shall not modify the
Loan Documents so as to increase the principal amount of the Note to more than
$3,675,000.00 without the prior written consent of Guarantor.
(b) Bank may take and hold security for the Loan or this
Guaranty, accept additional or substituted security for either, and
subordinate, exchange, enforce, waive, release, compromise, fail to perfect and
sell or otherwise dispose of any such security.
(c) Bank may direct the order and manner of any sale of
all or any part of any security now or later to be held for the Loan or this
Guaranty, and Bank may also bid at any such sale.
(d) Bank may apply any payments or recoveries from
Borrower, any Guarantor or any other source, and any proceeds of any security,
to Borrower's obligations under the Loan Documents in such manner, order and
priority as Bank may elect, whether or not those obligations are guarantied by
this Guaranty or secured at the time of the application.
(e) Bank may release Borrower of its liability for the
Loan or any part of it.
(f) Bank may substitute, add or release any one or more
guarantors or endorsers.
(g) In addition to the Loan, Bank may extend other credit
to Borrower, and may take and hold security for the credit so extended, all
without affecting Guarantor's liability under this Guaranty.
4. Guaranty to be Absolute and Continuing. Guarantor expressly
agrees that until the Loan is paid and performed in full and each and every
term, covenant and condition of this Guaranty is fully performed, this Guaranty
shall continue in full force and Guarantor shall not be released by or because
of:
(a) Any act or event which might otherwise discharge,
reduce, limit or modify any Guarantor's obligations under this Guaranty other
than a breach by Bank of its obligations hereunder (provided that if Bank
breaches its obligations hereunder, such breach shall not release Guarantor
from its liability hereunder, but Guarantor may assert a right of set-off to
reduce its liability hereunder by an amount equal to actual damages sustained
by Guarantor by reason of such breach by Bank);
(b) Any waiver, extension, modification, forbearance,
delay or other act or omission of Bank, or its failure to proceed promptly or
otherwise as against Borrower, any Guarantor or any security;
(c) Any action, omission or circumstance which might
increase the likelihood that Guarantor may be called upon to perform under this
Guaranty or which might affect the rights or remedies of any Guarantor as
against Borrower; or
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(d) Any dealings occurring at any time between Borrower
and Bank, whether relating to the Loan or otherwise.
Each Guarantor expressly waives and surrenders any defense to its
liability under this Guaranty based upon any of the foregoing acts, omissions,
agreements, waivers or matters. It is the purpose and intent of this Guaranty
that the obligations of each Guarantor under it shall be absolute and
unconditional under any and all circumstances.
5. Guarantor's Waivers. Each Guarantor waives:
(a) [Intentionally omitted];
(b) Any right it may have to require Bank to proceed
against Borrower, proceed against or exhaust any security held from Borrower,
or pursue any other remedy in Bank's power to pursue;
(c) Any defense based on any claim that any Guarantor's
obligations exceed or are more burdensome than those of Borrower or any other
Guarantor;
(d) Any defense based on: W any legal disability of
Borrower, (ii) any release, discharge, modification, impairment or limitation
of the liability of Borrower to Bank from any cause, whether consented to by
Bank or arising by operation of law or from any bankruptcy or other voluntary
or involuntary proceeding, in or out of court, for the adjustment of
debtor-creditor relationships ("Insolvency Proceeding") and (iii) any rejection
or disaffirmance of the Loan, or any part of it, or any security held for it,
in any such Insolvency Proceeding;
(e) Any defense based on any action taken or omitted by
Bank in any Insolvency Proceeding involving Borrower, including any election to
have Bank's claim allowed as being secured, partially secured or unsecured, any
extension of credit by Bank to Borrower in any Insolvency Proceeding, and the
taking and holding by Bank of any security for any such extension of credit;
(f) All presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, notices of
acceptance of this Guaranty, notices Of intention to accelerate and
acceleration and of the existence, creation, or incurring of new or additional
indebtedness, and demands and notices of every kind except for any demand or
notice by Bank to Guarantor expressly provided for in Section 1; and
(g) Any defense based on or arising out of any defense
that Borrower may have to the payment or performance of the Loan or any part of
it.
6. Waivers of Subrogation and Other Rights.
(a) Upon the occurrence of an Event of Default (as such
term is defined in the Note), Bank in its sole discretion, without prior notice
to Guarantor (except as provided in Section 1 hereof) and without consent of
Guarantor, may elect to do any one or more of the following: W foreclose either
judicially or nonjudicially against any real or personal property security it
may hold for the Loan, (ii) accept a transfer of any such security in lieu of
foreclosure, (iii) compromise or adjust the Loan or any part of it or make any
other accommodation with Borrower or any Guarantor, and/or (iv) exercise any
other remedy against Borrower or any security. No such action by Bank shall
release or limit the liability of any Guarantor, each of whom shall remain
liable under this Guaranty after the action, even if the effect of the action
is to deprive a Guarantor of any subrogation rights, rights of indemnity, or
other rights to collect reimbursement from Borrower for any
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sums paid to Bank, whether contractual or arising by operation of law or
otherwise. Each Guarantor expressly agrees that under no circumstances shall
he or it be deemed to have any right, title, interest or claim in or to any
real or personal property to be held by Bank or any third party after any
foreclosure or transfer in lieu of foreclosure of any security for the Loan.
(b) Regardless of whether any Guarantor may have made any
payments to Bank, until the Loan has been paid and performed in full, each
Guarantor hereby waives: W all rights of subrogation, all rights of indemnity,
and any other rights to collect reimbursement from Borrower for any sums paid
to Bank, whether contractual or arising by operation of law (including the
United States Bankruptcy Code or any successor or similar statute) or
otherwise, (ii) all rights to enforce any remedy that Bank may have against
Borrower, and (iii) all rights to participate in any security now or later to
be held by Bank for the Loan. Further, each Guarantor expressly waives each
and every right to which it may be entitled by virtue of the suretyship law of
the State of Texas, including without limitation, any rights pursuant to Rule
31, Texas Rules of Civil Procedure, Articles 1986 and 1987, Revised Civil
Statutes of Texas and Chapter 34 of the Texas Business and Commerce Code.
(c) Guarantor understands and acknowledges that if Bank
forecloses judicially or nonjudicially against any real property security for
the Loan, that foreclosure could impair or destroy any ability that a Guarantor
may have to seek reimbursement, contribution or indemnification from Borrower
or others based on any right a Guarantor may have of subrogation,
reimbursement, contribution or indemnification for any amounts paid by any
Guarantor under this- Guaranty. By executing this Guaranty, each Guarantor
freely, irrevocably and unconditionally: W waives and relinquishes any defense
to this Guaranty that he or it may have by law as a result of such action by
Bank and agrees that each Guarantor will be fully liable under this Guaranty
even though Bank may foreclose judicially or nonjudicially against any real
property security for the Loan; (ii) agrees that he or it will not assert any
such defense in any action or proceeding which Bank may commence to enforce
this Guaranty; and (iii) acknowledges and agrees that Bank is relying on this
waiver in making the Loan, and that this waiver is a material part of the
consideration which Bank is receiving for making the Loan.
7. Revival and Reinstatement. If Bank is required to pay, return
or restore to Borrower or any other person any amounts previously paid on the
Loan because of any Insolvency Proceeding of Borrower, any stop notice or any
other reason, the obligations of Guarantor shall be reinstated and revived and
the rights of Bank shall continue with regard to such amounts, all as though
they had never been paid.
8. Information Regarding Borrower and the Property. Before
signing this Guaranty, each Guarantor investigated the financial condition and
business operations of Borrower, the present and former condition, uses and
ownership of the Property, and such other matters as he or it deemed
appropriate to assure himself or itself of Borrower's ability to discharge its
obligations under the Loan Documents. Each Guarantor assumes full
responsibility for that due diligence, as well as for keeping informed of all
matters which may affect Borrower's ability to pay and perform its obligations
to Bank. Bank has no duty to disclose to any Guarantor any information which
Bank may have or receive about Borrower's financial condition or business
operations, the condition or uses of the Property, or any other circumstances
bearing on Borrower's ability to perform.
9. Subordination. Commencing automatically upon the occurrence
of a monetary Event of Default and continuing so long as such monetary Event of
Default remains uncured, any rights of Guarantor, whether now existing or later
arising, to receive payment on account of any indebtedness (including interest)
owed to it by Borrower or any subsequent owner of the Property, or to withdraw
capital invested by it in Borrower, or to receive distributions from Borrower,
shall be subordinate as to lien and time of payment and in all other respects
to the full and prior repayment to Bank of the Loan. No Guarantor shall be
entitled to
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enforce or receive payment of any sums hereby subordinated until the Loan has
been paid and performed in full and any such sums received in violation of this
Guaranty shall be received by each Guarantor in trust for Bank. The provisions
of this Section 9 shall not be operative until the occurrence of a monetary
Event of Default. For purposes of this Section 9, a "monetary Event of
Default" means an Event of Default under any of the Loan Documents that is
curable by the payment of money which neither Borrower nor Guarantor have paid.
10. Financial Information. Guarantor shall keep true and correct
financial books and records, using sound accounting principles consistently
applied. Within one hundred twenty (120) days after the end of each fiscal
year, Guarantor shall deliver to Bank an audited financial statement, together
with a statement showing all changes in its financial condition which occurred
during the preceding fiscal year. Guarantor shall promptly provide Bank with
any additional audited financial information that such Guarantor may obtain.
Guarantor shall deliver to Bank, within thirty (30) days after filing with the
Internal Revenue Service, copies of signed tax returns and shall deliver such
other information concerning its affairs and properties as Bank may reasonably
request.
11. Guarantor's Representations and Warranties. Guarantor
represents and warrants that:
(a) All financial statements and other financial
information furnished or to be furnished to Bank are or will be true and
correct in all material respects and do or will fairly represent the financial
condition of each Guarantor (including all contingent liabilities);
(b) There has been no material adverse change in any
Guarantor's financial condition since the dates of the statements most recently
furnished to Bank.
12. Events of Default. After the giving of any notice required by
Section 1 hereof, Bank may declare Guarantor to be in default under this
Guaranty upon the occurrence of any of the following events ("Events of
Default"):
(a) Any Guarantor fails to perform any of its obligations
under this Guaranty; or
(b) Any Guarantor revokes this Guaranty or this Guaranty
becomes ineffective for any reason; or
(c) Any representation or warranty made or given by any
Guarantor to Bank proves to be false or misleading in any material respect; or
(d) Any Guarantor becomes insolvent or the subject of any
Insolvency Proceeding.
13. Arbitration. Any controversy or claim between or among the
parties, including those arising out of or relating to this Guaranty or the
Loan Documents and any claim based on or arising from an alleged tort, shall at
the request of any party be determined by arbitration conducted in Dallas,
Texas. THE ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH THE UNITED STATES
ARBITRATION ACT (TITLE 9, U.S. CODE), NOTWITHSTANDING ANY CHOICE OF LAW
PROVISION IN THIS AGREEMENT, AND UNDER THE COMMERCIAL RULES OF THE AMERICAN
ARBITRATION ASSOCIATION. The arbitrator(s) shall be an attorney(s) having no
less than seven (7) years experience in contracts and litigation relating to
commercial construction. The arbitrator(s) shall give effect to statutes of
limitation in determining any claim. Any controversy concerning whether an
issue is arbitrable shall be determined by the arbitrator(s). Judgment upon
the arbitration award may be entered in any court having jurisdiction. The
institution and maintenance of an action for judicial relief or pursuit of a
provisional
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or ancillary remedy shall not constitute a waiver of the right of any party,
including the plaintiff, to submit the controversy or claim to arbitration if
any other party contests such action for judicial relief. No provision of this
Section 13 shall limit the right of any party to this Agreement (i) to exercise
self-help remedies such as setoff, foreclosure against or sale of any real or
personal property collateral or security, or to obtain provisional or ancillary
remedies from a court of competent jurisdiction before, after or during the
pendency of any arbitration or other proceeding or (ii) seek or obtain
injunctive or similar relief during the pendency of any arbitration or other
proceeding except relating directly to the subject matter of the arbitration
proceeding. Notwithstanding the foregoing, during the pendency of arbitration
proceedings that are initiated at the request of Bank and which are limited to
matters for which Bank has requested arbitration (including any related matters
for which Guarantor has requested concurrent arbitration), Bank hereby agrees
that it will not exercise its self-help remedies such as setoff, foreclosure
against or sale of any real or personal property collateral or security.
Notwithstanding the foregoing, Bank, shall have the unilateral right to dismiss
any arbitration proceeding commenced at Bank's request and following three (3)
days' notice to Guarantor of Bank's election to dismiss such arbitration
proceeding, the provisions of the preceding sentence shall not apply. In any
subsequent judicial proceeding, Bank's election to dismiss such arbitration
proceeding shall be without prejudice to Bank's or Guarantor's claims or
defenses in respect of the subject matter of that arbitration proceeding. The
exercise of a remedy does not waive the right of either party to resort to
arbitration. At Bank's option, foreclosure under the deed of trust may be
accomplished either by exercise of power of sale under the deed of trust or by
judicial foreclosure.
14. Authorization, No Violation. Each Guarantor is authorized to
execute, deliver and perform under this Guaranty, which is a valid and binding
obligation of each Guarantor. No provision or obligation of Guarantor
contained in this Guaranty violates any applicable law, regulation or
ordinance, or any order or ruling of any court or governmental agency. No such
provision or obligation conflicts with, or constitutes a breach or default
under, any agreement to which a Guarantor is a party.
15. Additional and Independent Obligations. Each Guarantor's
obligation under this Guaranty are in addition to its obligations under any
other existing or future guaranties to Bank, each of which shall remain in full
force and effect until it is expressly modified or released in a writing signed
by Bank. Each Guarantor's obligations under this Guaranty are independent of
those of Borrower on the Loan. Bank may bring a separate action, or commence a
separate arbitration proceeding against Guarantor or any of them without first
proceeding against Borrower, any other person or any security that Bank may
hold, and without pursuing any other remedy. Bank's rights under this Guaranty
shall not be exhausted by any action by Bank until the Loan has been paid and
performed in full.
16. No Waiver: Consents: Cumulative Remedies. Each waiver by Bank
must be in writing, and no waiver shall be construed as a continuing waiver.
No waiver shall be implied from Bank's delay in exercising or failure to
exercise any right or remedy against Borrower, any Guarantor or any security.
Consent by Bank to any act or omission by Borrower or any Guarantor shall not
be construed as a consent to any other or subsequent act or omission, or as a
waiver of the requirement for Bank's consent to be obtained in any future or
other instance. All remedies of Bank against Borrower and Guarantor are
cumulative.
17. No Release. No Guarantor shall be released from its
obligations under this Guaranty except by a writing signed by Bank.
18. Heirs, Successors and Assigns: Participations. The terms of
this Guaranty shall bind and benefit the heirs, legal representatives,
successors and assigns of Bank and each Guarantor, respectively; provided,
however, that no Guarantor may assign this Guaranty, or assign or delegate any
of his or its rights or obligations under this Guaranty, without the prior
written consent of Bank in each instance. Bank in its sole discretion may sell
or assign participations or other interests in the Loan and this Guaranty, in
whole of in part,
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all without notice to or the consent of Guarantor and without affecting
Guarantor's obligations under this Guaranty. Also without notice to or the
consent of any Guarantor, Bank may disclose any and all information in its
possession concerning any Guarantor, this Guaranty and any security for this
Guaranty to any actual or prospective purchaser of any securities issued or to
be issued by Bank, and to any actual or prospective purchaser or assignee of
any participation or other interest in the Loan and this Guaranty.
19. Notices. All notices given under this Guaranty must be in
writing and shall be effectively served upon delivery, or if mailed, upon the
first to occur of receipt or the expiration of forty-eight (48) hours after
deposit in certified United States mail, postage prepaid, sent to the party at
its address given at the end of this Guaranty. Those addresses may be changed
by Bank or any Guarantor by written notice to the other party. Service of any
notice on any one Guarantor signing this Guaranty shall be effective service on
Guarantor for a purposes.
20. Rules of Construction. In this Guaranty, the word "Borrower"
includes both the named Borrower and any other person who at any time assumes
or otherwise becomes primarily liable for all or any part of the obligations of
the named Borrower on the Loan. The word "person" includes any individual,
company, trust or other legal entity of any kind. If this Guaranty is executed
by more than one person, the word "Guarantor" includes all such persons. The
word "include(s)" means "include(s), without limitation," and the word
"including" means "including, but not limited to." When the context and
construction so require, all words used in the singular shall be deemed to have
been used in the plural and vice versa. No listing of specific instances,
items or matters in any way limits the scope or generality of any language of
this Guaranty. All headings appearing in this Guaranty are for convenience
only and shall be disregarded in construing this Guaranty.
21. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
22. Costs and Expenses. If any lawsuit or arbitration is
commenced which arises out of, or which relates to this Guaranty, the Loan
Documents or the Loan, the prevailing party shall be entitled to recover from
each other party such sums as the court or arbitrator may adjudge to be
reasonable attorneys' fees (including reasonable allocated costs for services
of in-house counsel) in the action or proceeding, in addition to costs and
expenses otherwise allowed by law. In all other situations, including any
Insolvency Proceeding, Guarantor agree to pay all of Bank's costs and expenses,
including reasonable attorneys' fees (including reasonable allocated costs for
services of Bank's in-house counsel) which may be incurred in any effort to
collect or enforce the Loan or any part of it or any term of this Guaranty.
From the time(s) incurred until paid in full to Bank, all sums shall bear
interest at the Default Rate, as defined in the Note.
23. Consideration. Each Guarantor acknowledges that he or it
expects to benefit from Bank's extension of the Loan to Borrower because of his
or its relationship to Borrower, and that it is executing this Guaranty in
consideration of that anticipated benefit.
24. Miscellaneous. The death or legal incapacity of any Guarantor
shall not terminate the obligations of such Guarantor or any other Guarantor
under this Guaranty, including its obligations with regard to future advances
under the Loan Documents. The liability of all persons who are in any manner
obligated under this Guaranty shall be joint and several. The illegality or
unenforceability of one or more provisions of this Guaranty shall not affect
any other provision. Any Guarantor who is married agrees that Bank may look to
all of his or her community property and separate property to satisfy his or
her obligations under this Guaranty. Time is of the essence in the performance
of this Guaranty by each Guarantor.
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25. Integration, Modifications. This Guaranty (a) integrates all
the terms and conditions mentioned in or incidental to this Guaranty, (b)
supersedes all oral negotiations and prior writings with respect to its subject
matter, and (c) is intended by Guarantor and Bank as the final expression of
the agreement with respect to the terms and conditions set forth in this
Guaranty and as the complete and exclusive statement of the terms agreed to by
Guarantor and Bank. No representation, understanding, promise or condition
shall be enforceable against any party unless it is contained in this Guaranty.
This Guaranty may not be modified except in a writing signed by both Bank and a
Guarantor.
26. Release. Conditioned upon the payment in full of the Loan and
the performance of all obligations of Borrower and Guarantor under the Loan
Documents, within a reasonable time after Guarantor's written request, Bank
will confirm to Guarantor in writing that Guarantor's obligations under this
Guaranty are released.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
GUARANTOR.
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NHC HOLDINGS CORP.,
a Nevada corporation
By: /s/ XXXX XXXXXXX
---------------------------------
Name: Xxxx Xxxxxxx
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Title:
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Addresses Where Notices to
Guarantor are to be-Sent.
NHC Holdings Corp.
c/o Pacific USA Holding Corp.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Title: Chief General Counsel
Address Where Notices to
Bank are to be Sent.
Bank of America Texas, NA.
0000 X. Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Payment Guaranty/Pacific United, L.P. Page 8
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THE STATE OF TEXAS )
)
COUNTY OF _____________ )
This instrument was acknowledged before me on this 8th day of August,
1997, by Xxxx Xxxxxxx of NHC HOLDINGS CORP., a Nevada corporation, on behalf of
said corporation.
/s/ XXXXX SOLAIDONE
----------------------------------
Notary Public Signature
(PERSONALIZED SEAL)
Payment Guaranty/Pacific United, L.P. Page 9
