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EXHIBIT 10.27
CONTINUING GUARANTY
THIS CONTINUING GUARANTY ("Guaranty"), dated as of October 9, 1998, is
executed and delivered by LEISURE TIME TECHNOLOGY, INC., a Georgia corporation
("Guarantor"), in favor of FOOTHILL CAPITAL CORPORATION, a California
corporation ("Foothill"), with reference to the following:
RECITALS
A. Leisure Time Cruise Corporation, a Colorado corporation
("Borrower"), and Foothill are, contemporaneously herewith, entering into
certain Loan Documents (as defined below); and
B. In order to induce Foothill to extend financial accommodations to
Borrower pursuant to the Loan Documents, and in consideration thereof, and in
consideration of any loans or other financial accommodations heretofore or
hereafter extended by Foothill to Borrower, whether pursuant to the Loan
Documents or otherwise, Guarantor has agreed to guarantee the Guaranteed
Obligations (defined below).
NOW, THEREFORE, in consideration of the foregoing, Guarantor hereby
agrees, in favor of Foothill, as follows:
1. Definitions and Construction.
(a) Definitions. The following terms, as used in this Guaranty,
shall have the following meanings:
"Bankruptcy Code" means The Bankruptcy Reform Act of 1978 (11
U.S.C. Sections 101-1330), as amended or supplemented from time to time, and any
successor statute, and any and all rules issued or promulgated in connection
therewith.
"Guaranteed Obligations" means any and all obligations,
indebtedness, or liabilities of any kind or character owed by Borrower to
Foothill including all such obligations, indebtedness, or liabilities, whether
for principal, interest (including any interest which, but for the application
of the provisions of the Bankruptcy Code, would have accrued on such amounts),
premium, reimbursement obligations, fees, costs, expenses (including, attorneys'
fees), or indemnity obligations, whether heretofore, now, or hereafter made,
incurred, or created, whether voluntarily or involuntarily made, incurred, or
created, whether secured or unsecured (and if secured, regardless of the nature
or extent of the security), whether absolute or contingent, liquidated or
unliquidated, determined or indeterminate, whether Borrower is liable
individually or jointly with others, and whether recovery is or hereafter
becomes barred by any statute of limitations or otherwise becomes
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unenforceable for any reason whatsoever, including any act or failure to act by
Foothill.
"Loan Documents" shall mean that certain Security Agreement,
of even date herewith, between Foothill and Borrower, that certain Secured
Promissory Note in the principal amount of THREE MILLION DOLLARS ($3,000,000)
issued by Borrower in connection therewith, and those documents, instruments,
and agreements which either now or in the future exist among Borrower,
Guarantor, or any affiliate of Borrower, on the one hand, and Foothill, on the
other hand, and any amendments, modifications, or supplements to any of the
foregoing.
(b) Construction. Unless the context of this Guaranty clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, and the term "including" is not limiting. The
words "hereof," "herein," "hereby," "hereunder," and other similar terms refer
to this Guaranty as a whole and not to any particular provision of this
Guaranty. Any reference herein to any of the Loan Documents includes any and all
alterations, amendments, extensions, modifications, renewals, or supplements
thereto or thereof, as applicable. Neither this Guaranty nor any uncertainty or
ambiguity herein shall be construed or resolved against Foothill or Guarantor,
whether under any rule of construction or otherwise. On the contrary, this
Guaranty has been reviewed by Guarantor, Foothill, and their respective counsel,
and shall be construed and interpreted according to the ordinary meaning of the
words used so as to fairly accomplish the purposes and intentions of Foothill
and Guarantor.
2. Guaranteed Obligations. Guarantor hereby irrevocably and
unconditionally guarantees to Foothill, as and for its own debt, until final and
indefeasible payment thereof has been made, (a) payment of the Guaranteed
Obligations, in each case when and as the same shall become due and payable,
whether at maturity, pursuant to a mandatory prepayment requirement, by
acceleration, or otherwise; it being the intent of Guarantor that the guaranty
set forth herein shall be a guaranty of payment and not a guaranty of
collection; and (b) the punctual and faithful performance, keeping, observance,
and fulfillment by Borrower of all of the agreements, conditions, covenants, and
obligations of Borrower contained in the Loan Documents.
3. Continuing Guaranty. This Guaranty includes Guaranteed
Obligations arising under successive transactions continuing, compromising,
extending, increasing, modifying, releasing, or renewing the Guaranteed
Obligations, changing the interest rate, payment terms, or other terms and
conditions thereof, or creating new or additional Guaranteed Obligations after
prior Guaranteed Obligations have been satisfied in whole or in part. To the
maximum extent permitted by law, Guarantor hereby waives any right to revoke
this Guaranty as to future indebtedness. If such a revocation is effective
notwithstanding the foregoing waiver, Guarantor acknowledges and agrees that (a)
no such revocation shall be effective until written notice thereof has been
received by Foothill, (b) no such revocation shall apply to any Guaranteed
Obligations in existence on such date (including, any subsequent
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continuation, extension, or renewal thereof, or change in the interest rate,
payment terms, or other terms and conditions thereof), (c) no such revocation
shall apply to any Guaranteed Obligations made or created after such date to the
extent made or created pursuant to a legally binding commitment of Foothill in
existence on the date of such revocation, (d) no payment by Guarantor, Borrower,
or from any other source, prior to the date of such revocation shall reduce the
maximum obligation of Guarantor hereunder, and (e) any payment by Borrower or
from any source other than Guarantor, subsequent to the date of such revocation,
shall first be applied to that portion of the Guaranteed Obligations as to which
the revocation is effective and which are not, therefore, guaranteed hereunder,
and to the extent so applied shall not reduce the maximum obligation of
Guarantor hereunder.
4. Performance Under This Guaranty. In the event that Borrower fails
to make any payment of any Guaranteed Obligations on or before the due date
thereof, or if Borrower shall fail to perform, keep, observe, or fulfill any
other obligation referred to in clause (b) of Section 2 hereof in the manner
provided in the Loan Documents, Guarantor immediately shall cause such payment
to be made or each of such obligations to be performed, kept, observed, or
fulfilled.
5. Primary Obligations. This Guaranty is a primary and original
obligation of Guarantor, is not merely the creation of a surety relationship,
and is an absolute, unconditional, and continuing guaranty of payment and
performance which shall remain in full force and effect without respect to
future changes in conditions, including any change of law or any invalidity or
irregularity with respect to the Loan Documents. Guarantor agrees that it is
directly, jointly and severally with any other guarantor of the Guaranteed
Obligations, liable to Foothill, that the obligations of Guarantor hereunder are
independent of the obligations of Borrower or any other guarantor, and that a
separate action may be brought against Guarantor whether such action is brought
against Borrower or any other guarantor or whether Borrower or any such other
guarantor is joined in such action. Guarantor agrees that its liability
hereunder shall be immediate and shall not be contingent upon the exercise or
enforcement by Foothill of whatever remedies it may have against Borrower or any
other guarantor, or the enforcement of any lien or realization upon any security
Foothill may at any time possess. Guarantor agrees that any release which may be
given by Foothill to Borrower or any other guarantor shall not release
Guarantor. Guarantor consents and agrees that Foothill shall be under no
obligation to marshal any assets of Borrower or any other guarantor in favor of
Guarantor, or against or in payment of any or all of the Guaranteed Obligations.
6. Waivers.
(a) To the maximum extent permitted by law, Guarantor hereby
waives: (1) notice of acceptance hereof; (2) notice of any loans or other
financial accommodations made or extended under the Loan Documents or the
creation or existence of any Guaranteed Obligations; (3) notice of the amount of
the Guaranteed Obligations, subject, however, to Guarantor's right to make
inquiry of Foothill to ascertain the amount of the
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Guaranteed Obligations at any reasonable time; (4) notice of any adverse change
in the financial condition of Borrower or of any other fact that might increase
Guarantor's risk hereunder; (5) notice of presentment for payment, demand,
protest, and notice thereof as to any promissory notes or other instruments
among the Loan Documents; (6) notice of any event of default under the Loan
Documents; and (7) all other notices (except if such notice is specifically
required to be given to Guarantor hereunder or under any Loan Document to which
Guarantor is a party) and demands to which Guarantor might otherwise be
entitled.
(b) To the maximum extent permitted by law, Guarantor hereby
waives the right by statute or otherwise to require Foothill to institute suit
against Borrower or to exhaust any rights and remedies which Foothill has or may
have against Borrower. In this regard, Guarantor agrees that it is bound to the
payment of all Guaranteed Obligations, whether now existing or hereafter
accruing, as fully as if such Guaranteed Obligations were directly owing to
Foothill by Guarantor. Guarantor further waives any defense arising by reason of
any disability or other defense (other than the defense that the Guaranteed
Obligations shall have been fully and finally performed and indefeasibly paid)
of Borrower or by reason of the cessation from any cause whatsoever of the
liability of Borrower in respect thereof.
(c) To the maximum extent permitted by law, Guarantor hereby
waives: (1) any rights to assert against Foothill any defense (legal or
equitable), set-off, counterclaim, or claim which Guarantor may now or at any
time hereafter have against Borrower or any other party liable to Foothill; (2)
any defense, set-off, counterclaim, or claim, of any kind or nature, arising
directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of the Guaranteed Obligations or any
security therefor; (3) any defense based upon or arising out of an election of
remedies by Foothill including any defense based upon an election of remedies by
Foothill under the provisions of Sections 580d and 726 of the California Code of
Civil Procedure, or any similar law of California or any other jurisdiction; (4)
the benefit of any statute of limitations affecting Guarantor's liability
hereunder or the enforcement thereof, and any act which shall defer or delay the
operation of any statute of limitations applicable to the Guaranteed Obligations
shall similarly operate to defer or delay the operation of such statute of
limitations applicable to Guarantor's liability hereunder; (5) all rights and
defenses arising out of an election of remedies by Foothill, even though that
election of remedies, such as nonjudicial foreclosure with respect to security
for the Guaranteed Obligations, has destroyed the Guarantors' rights of
subrogation and reimbursement against Borrower by the operation of Section 580d
of the California Code of Civil Procedure or otherwise; and (6) all rights and
defenses that Guarantor may have because the Guaranteed Obligations are secured
by real property or an estate for years. As to clause "(6)" of this paragraph
6(c), this waiver means, among other things: (i) Foothill may collect from
Guarantor without first foreclosing on any real or personal property collateral
pledged by Borrower; and (ii) if Foothill forecloses on any real property (or an
estate for years) pledged by Borrower: (A) the amount of the Guaranteed
Obligations may be reduced only by the price for which that collateral is sold
at the foreclosure sale, even if the
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collateral is worth more than the sale price, and (B) Foothill may collect from
Guarantor even if Foothill, by foreclosing on the real property collateral, has
destroyed any right Guarantor may have to collect from Borrower. The waiver in
clause "(6)" of this paragraph 6(c) is an unconditional and irrevocable waiver
of any rights and defenses that Guarantor may have because Borrower's debt is
secured by real property or an estate for years. These rights and defenses
include, but are not limited to, any rights or defenses based upon Section 580a,
580b, 580d, or 726 of the California Code of Civil Procedure.
(d) To the maximum extent permitted by law, Guarantor hereby
waives any right of subrogation or reimbursement Guarantor has or may have as
against Borrower with respect to the Guaranteed Obligations. In addition,
Guarantor hereby waives any right to proceed against Borrower, now or hereafter,
for contribution, indemnity, reimbursement, and any other suretyship rights and
claims, whether direct or indirect, liquidated or contingent, whether arising
under express or implied contract or by operation of law, which Guarantor may
now have or hereafter have as against the Borrower with respect to the
Guaranteed Obligations. Guarantor also hereby waives any rights to recourse to
or with respect to any asset of Borrower. Guarantor agrees that in light of the
immediately foregoing waivers, the execution of this Guaranty shall not be
deemed to make Guarantor a "creditor" of Borrower, and that for purposes of
Sections 547 and 550 of the Bankruptcy Code Guarantor shall not be deemed a
"creditor" of Borrower.
(e) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER
PROVISION SET FORTH IN THIS GUARANTY, GUARANTOR HEREBY WAIVES, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHTS, BENEFITS, SANCTIONS, OR DEFENSES
ARISING DIRECTLY OR INDIRECTLY UNDER ANY ONE OR MORE OF CALIFORNIA CIVIL CODE
SECTIONS 2787 TO 2855, INCLUSIVE, CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS
580a, 580b, 580c, 580d, AND 726, AND CHAPTER 2 OF TITLE 14 OF THE CALIFORNIA
CIVIL CODE.
7. Releases. Guarantor consents and agrees that, without notice to or
by Guarantor and without affecting or impairing the obligations of Guarantor
hereunder, Foothill may, by action or inaction:
(a) compromise, settle, extend the duration or the time for the
payment of, or discharge the performance of, or may refuse to or otherwise not
enforce the Loan Documents;
(b) release all or any one or more parties to any one or more of the
Loan Documents or grant other indulgences to Borrower in respect thereof;
(c) amend or modify in any manner and at any time (or from time to
time) any of the Loan Documents;
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(d) increase or decrease at any time (or from time to time) the
amount of the Guaranteed Obligations, the amount or rate of interest applicable
thereto, and/or the amount of fees or other charges imposed in connection
therewith; or
(e) release or substitute any other guarantor, if any, of the
Guaranteed Obligations, or enforce, exchange, release, or waive any security for
the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations,
or any portion thereof.
8. No Election. Foothill shall have the right to seek recourse against
Guarantor to the fullest extent provided for herein, and no election by Foothill
to proceed in one form of action or proceeding, or against any party, or on any
obligation, shall constitute a waiver of Foothill's right to proceed in any
other form of action or proceeding or against other parties unless Foothill has
expressly waived such right in writing. Specifically, but without limiting the
generality of the foregoing, no action or proceeding by Foothill under any
document or instrument evidencing the Guaranteed Obligations shall serve to
diminish the liability of Guarantor under this Guaranty except to the extent
that Foothill finally and unconditionally shall have realized indefeasible
payment by such action or proceeding.
9. Indefeasible Payment. The Guaranteed Obligations shall not be
considered indefeasibly paid for purposes of this Guaranty unless and until all
payments to Foothill are no longer subject to any right on the part of any
person, including Borrower, Borrower as a debtor in possession, or any trustee
(whether appointed under the Bankruptcy Code or otherwise) of Borrower's assets
to invalidate or set aside such payments or to seek to recoup the amount of such
payments or any portion thereof, or to declare same to be fraudulent or
preferential. Until such full and final performance and indefeasible payment of
the Guaranteed Obligations whether by Guarantor or Borrower, Foothill shall have
no obligation whatsoever to transfer or assign its interest in the Loan
Documents to Guarantor. In the event that, for any reason, any portion of such
payments to Foothill is set aside or restored, whether voluntarily or
involuntarily, after the making thereof, then the obligation intended to be
satisfied thereby shall be revived and continued in full force and effect as if
said payment or payments had not been made, and Guarantor shall be liable for
the full amount Foothill is required to repay plus any and all costs and
expenses (including attorneys' fees) paid by Foothill in connection therewith.
10. Financial Condition of Borrower. Guarantor represents and warrants
to Foothill that Guarantor is currently informed of the financial condition of
Borrower and of all other circumstances which a diligent inquiry would reveal
and which bear upon the risk of nonpayment of the Guaranteed Obligations.
Guarantor further represents and warrants to Foothill that Guarantor has read
and understands the terms and conditions of the Loan Documents. Guarantor hereby
covenants that Guarantor will continue to keep informed of Borrower's financial
condition, the financial condition of other guarantors, if any, and of all other
circumstances which bear upon the risk of nonpayment or nonperformance of the
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Guaranteed Obligations.
11. Subordination. Guarantor hereby agrees that any and all present and
future indebtedness of Borrower owing to Guarantor is postponed in favor of and
subordinated to payment, in full, in cash, of the Guaranteed Obligations. In
this regard, no payment of any kind whatsoever shall be made with respect to
such indebtedness until the Guaranteed Obligations have been indefeasibly paid
in full.
12. Payments; Application. All payments to be made hereunder by
Guarantor shall be made in lawful money of the United States of America at the
time of payment, shall be made in immediately available funds, and shall be made
without deduction (whether for taxes or otherwise) or offset. All payments made
by Guarantor hereunder shall be applied as follows: first, to all costs and
expenses (including attorneys' fees) incurred by Foothill in enforcing this
Guaranty or in collecting the Guaranteed Obligations; second, to all accrued and
unpaid interest, premium, if any, and fees owing to Foothill constituting
Guaranteed Obligations; and third, to the balance of the Guaranteed Obligations.
13. Attorneys' Fees and Costs. Guarantor agrees to pay, on demand, all
reasonable attorneys' fees and all other costs and expenses which may be
incurred by Foothill in the enforcement of this Guaranty or in any way arising
out of, or consequential to the protection, assertion, or enforcement of the
Guaranteed Obligations (or any security therefor), whether or not suit is
brought.
14. Indemnification. Guarantor agrees to indemnify Foothill and hold
Foothill harmless against all obligations, demands, or liabilities asserted by
any party and against all losses in any way suffered, incurred, or paid by
Foothill as a result of or in any way arising out of, following, or
consequential to Foothill's transactions with Borrower.
15. Notices. All notices or demands by Guarantor or Foothill to the
other relating to this Guaranty shall be in writing and either personally served
or sent by registered or certified mail, postage prepaid, return receipt
requested, or by prepaid telex, telefacsimile, or telegram, and shall be deemed
to be given for purposes of this Guaranty on the day that such writing is
received by the party to whom it is sent. Unless otherwise specified in a notice
sent or delivered in accordance with the provisions of this section, such
writing shall be sent, if to Guarantor, at Guarantor's address set forth on the
signature page hereof, and if to Foothill, then as follows:
Foothill Capital Corporation
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Small Business Lending Division
16. Cumulative Remedies. No remedy under this Guaranty or under any
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Loan Document is intended to be exclusive of any other remedy, but each and
every remedy shall be cumulative and in addition to any and every other remedy
given hereunder or under any Loan Document, and those provided by law or in
equity. No delay or omission by Foothill to exercise any right under this
Guaranty shall impair any such right nor be construed to be a waiver thereof. No
failure on the part of Foothill to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right.
17. Books and Records. Guarantor agrees that Foothill's books and
records showing the account between Foothill and Borrower shall be admissible in
any action or proceeding and shall be binding upon Guarantor for the purpose of
establishing the items therein set forth and shall constitute prima facie proof
thereof.
18. Severability of Provisions. Any provision of this Guaranty which is
prohibited or unenforceable under applicable law, shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
19. Entire Agreement; Amendments. This Guaranty constitutes the entire
agreement between Guarantor and Foothill pertaining to the subject matter
contained herein. This Guaranty may not be altered, amended, or modified, nor
may any provision hereof be waived or noncompliance therewith consented to,
except by means of a writing executed by both Guarantor and Foothill. Any such
alteration, amendment, modification, waiver, or consent shall be effective only
to the extent specified therein and for the specific purpose for which given. No
course of dealing and no delay or waiver of any right or default under this
Guaranty shall be deemed a waiver of any other, similar or dissimilar right or
default or otherwise prejudice the rights and remedies hereunder.
20. Successors and Assigns. The death of Guarantor shall not terminate
this Guaranty. This Guaranty shall be binding upon Guarantor's heirs, executors,
administrators, representatives, successors, and assigns and shall inure to the
benefit of the successors and assigns of Foothill; provided, however, Guarantor
shall not assign this Guaranty or delegate any of its duties hereunder without
Foothill's prior written consent. Any assignment without the consent of Foothill
shall be absolutely void. In the event of any assignment or other transfer of
rights by Foothill, the rights and benefits herein conferred upon Foothill shall
automatically extend to and be vested in such assignee or other transferee.
21. Separate Property. Any married individual who signs this Guaranty
in his or her individual capacity hereby expressly agrees that recourse may be
had against his or her separate property for all Guaranteed Obligations
hereunder.
22. Choice of Law and Venue. THE VALIDITY OF THIS GUARANTY, ITS
CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT, AND THE RIGHTS
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OF GUARANTOR AND FOOTHILL, SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
GUARANTOR HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION
WITH THIS GUARANTY SHALL BE TRIED AND DETERMINED ONLY IN THE STATE AND FEDERAL
COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, OR, AT THE
SOLE OPTION OF FOOTHILL, IN ANY OTHER COURT IN WHICH FOOTHILL SHALL INITIATE
LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER
THE MATTER IN CONTROVERSY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GUARANTOR
HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO ASSERT THE DOCTRINE OF FORUM
NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN
ACCORDANCE WITH THIS SECTION.
23. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY ACTION,
CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO
THIS GUARANTY, OR IN ANY WAY CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
DEALINGS OF GUARANTOR AND FOOTHILL WITH RESPECT TO THIS GUARANTY, OR THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, GUARANTOR HEREBY AGREES THAT ANY SUCH ACTION, CAUSE OF
ACTION, CLAIM, DEMAND, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A
JURY AND THAT FOOTHILL MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY
COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF GUARANTOR TO THE
WAIVER OF ITS RIGHT TO TRIAL BY JURY.
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IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty
as of the date set forth in the first paragraph hereof.
LEISURE TIME TECHNOLOGY, INC.,
a Georgia corporation
By: /s/
-------------------------------------
Print Name:
Title:
Guarantor's
Address: 0000 Xxxxxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
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