EXHIBIT 10.6
GUARANTY AGREEMENT
This GUARANTY AGREEMENT (this "Guaranty") is made and entered into as of
April 17, 1998, by LOT$OFF CORPORATION, a Delaware corporation (the
"Guarantor"), in favor of GENERAL ELECTRIC CAPITAL CORPORATION, a New York
corporation having an office at 0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000 ("Lender").
W I T N E S S E T H:
WHEREAS, pursuant to and subject to the terms and conditions of that
certain $15,000,000 Revolving Credit Agreement dated as of June 16, 1997, by and
among the Guarantor, 50-OFF Texas Stores, L.P., a Texas limited partnership,
50-OFF Multistate Operations, Inc., a Nevada corporation, and 50-OFF
Operating Company, a Nevada corporation (collectively referred to as
"Borrowers", and individually as a "Borrower") and Lender (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), Lender has agreed, among other things, to make Advances
to Borrowers pursuant to the Credit Agreement (except as otherwise defined
herein, all other capitalized terms used herein shall have the respective
meanings given to such terms in the Credit Agreement); and
WHEREAS, Lender and Giant Sequoia Corporation, a Delaware corporation (the
"General Partner") and Mountain Laurel Corporation, a Delaware corporation (the
"Limited Partner"), each a wholly-owned Subsidiary of the Guarantor, have
entered into that certain Agreement of Limited Partnership of W(3) L.P., dated
as of April 17, 1998 (the "Partnership Agreement"), and formed W(3), L.P., a
Delaware limited partnership (the "Partnership"); and
WHEREAS, Lender has made a capital contribution to the Partnership in the
amount of $5,800,000 (the "Capital Contribution") and is the sole "Preferred
Limited Partner", as that term is defined in the Partnership Agreement, of the
Partnership; and
WHEREAS, as the "Preferred Limited Partner", Lender is entitled to receive
a preferential distribution from the Partnership as set forth in the Partnership
Agreement (the "Preferential Distribution"); and
WHEREAS, as a condition to entering into the Partnership Agreement and
making the Capital Contribution, Lender has required that the Guarantor execute
and deliver this Guaranty in favor of Lender; and
WHEREAS, the making of the Capital Contribution will result in a direct and
indirect benefit to the Guarantor;
NOW, THEREFORE, in consideration of the premises set forth above and in
order to induce Lender to execute the Partnership Agreement and make the Capital
Contribution, the Guarantor hereby agrees with Lender, for the benefit of
Lender, as follows:
SECTION 1. THE GUARANTY. The guaranty of the Guarantor hereunder is as
follows:
SECTION 1.1 Limited Guaranty of Capital Contribution. The Guarantor
hereby unconditionally and irrevocably guarantees to Lender and its successors,
endorsees, transferees and assigns, the full, prompt and complete repayment by
the Partnership to Lender of the Capital Contribution, whether pursuant to the
making of the Preferential Distribution or otherwise (the "Guaranteed
Obligation"). Notwithstanding anything to the contrary contained herein, the
maximum liability of the Guarantor under this Guaranty is limited to the
principal amount of $3,000,000, plus all costs (including, without limitation,
attorney's fees and expenses) incurred by Lender in collecting any amount due
Lender under this Guaranty or in prosecuting any action against the Partnership,
the Guarantor or any other guarantor with respect to all or any part of the
Guaranteed Obligation. For example,
If the aggregate Then the maximum
Preferential Distribution liability of Guarantor
received by Lender is: under this Guaranty is:
---------------------- -----------------------
$00.00 $3,000,000*
$2,000,000.00 $3,000,000*
$3,000,000.00 $2,800,000*
$4,000,000.00 $1,800,000*
$5,800,000.00 $00.00
* plus all costs of collection.
SECTION 1.2 Absolute Guarantee of Payment and Performance. The Guarantor
agrees that this Guaranty is a guaranty of payment and performance and not of
collection, and that its obligations under this Guaranty shall be joint and
several with every other guarantor and any other Persons which may at any time
or from time to time be or become directly or indirectly financially responsible
to Lender with respect to the Guaranteed Obligation and shall be under all
circumstances primary, absolute and unconditional, irrespective of, and
unaffected by:
(a) the genuineness, validity, regularity, enforceability or any future
amendment of, or change in this Guaranty, the Partnership Agreement or other
agreement, document or instrument to which the Partnership or the Guarantor is
or may become a party;
(b) the absence of any action to enforce this Guaranty or the Partnership
Agreement, or the waiver or consent by Lender with respect to any of the
provisions thereof;
(c) the existence, value or condition of, or failure of Lender to perfect
its Lien against any security for the Guaranteed Obligation or any action, or
the absence of any action, by Lender in respect thereof (including, without
limitation, the release of any such security);
(d) any bankruptcy, insolvency, reorganization, arrangement, adjustment,
composition, liquidation or the like of the Partnership or the Guarantor;
(e) any merger or consolidation of the Partnership or the Guarantor into
or with any other Person, or any sale, lease or transfer of any or all of the
assets of the Partnership or the Guarantor to any other Person;
(f) any circumstance other than full and final payment which might
constitute a defense available to, or a discharge of, the Partnership or the
Guarantor;
(g) absence of any notice to, or knowledge by, the Guarantor of the
existence or occurrence of any of the matters or events set forth in the
foregoing subdivisions (a) through (f);
(h) any sale, transfer or other disposition by the Guarantor of any stock
of the General Partner or the Limited Partner, or any sale, transfer or other
disposition by the General Partner or the Limited Partner of any interest in the
Partnership; or
(i) the amount of the Preferential Distribution;
it being agreed by the Guarantor that its obligations under this Guaranty
shall not be discharged until (i) the payment in full of the Guaranteed
Obligation (whether by payment from the Guarantor pursuant to this Guaranty or
receipt by Lender of the Preferential Distribution in an aggregate amount equal
to the Capital Contribution) or (ii) the release in writing of the Guarantor by
Lender of the Guarantor's obligations hereunder, whichever shall occur first.
The Guarantor shall be regarded, and shall be in the same position, as principal
debtor with respect to the Guaranteed Obligation and specifically agrees that,
notwithstanding any discharge of the Partnership or any other Person or the
operation of any provision of the Bankruptcy Code with respect to the Guaranteed
Obligation or any such Persons, the Guarantor shall be fully responsible for
paying the Guaranteed Obligation and all costs of enforcement which may at any
time accrue with respect to the Guaranteed Obligation. The Guarantor expressly
waives all rights it may have now or in the future under any statute, or at
common law, or at law or in equity, or otherwise, to compel Lender to proceed in
respect of the Guaranteed Obligation against the Partnership or any other Person
or against any security for the payment and performance of the Guaranteed
Obligation before proceeding against, or as a condition to proceeding against,
the Guarantor. The Guarantor agrees that any notice or directive given at any
time to Lender which is inconsistent with the waiver in the immediately
preceding sentence shall be null and void and may be ignored, and, in addition,
may not be pleaded or introduced as evidence in any litigation relating to this
Guaranty for the reason that such pleading or introduction would be at variance
with the written terms of this Guaranty unless Lender has specifically agreed
otherwise in writing. It is agreed between the Guarantor and Lender that the
foregoing waivers are of the essence of the transaction contemplated by the
Partnership Agreement and that, but for this Guaranty and such waivers, Lender
would decline to execute the Partnership Agreement and make the Capital
Contribution.
SECTION 1.3 Enforcement of Guaranty. In no event shall Lender have any
obligation (although it is entitled, at its option) to proceed against the
Partnership or any other Person or any real or personal property pledged to
secure the Guaranteed Obligation before seeking satisfaction from the Guarantor,
and Lender may proceed, prior or subsequent to, or simultaneously with, the
enforcement of Lender's rights hereunder, to exercise any right or remedy which
it may have against any property, real or personal, as a result of any Lien it
or they may have as security for all or any portion of the Guaranteed
Obligation.
SECTION 1.4 Events of Default. Upon the occurrence of any of the
following events (each, an "Event of Default"), Lender may, without notice to
the Partnership or the Guarantor, declare the Guaranteed Obligation, whether or
not then due, immediately due and payable by the Guarantor under the Guaranty,
and Lender shall be entitled to enforce the obligations of the Guarantor
hereunder:
(a) There shall occur any Event of Default (as defined in the Credit
Agreement) under the Credit Agreement;
(b) Any of the assets of the Partnership shall be attached, seized,
levied upon or subjected to a writ or distress warrant, or come within the
possession of any receiver, trustee, custodian or assignee for the benefit of
creditors of the Partnership and shall remain unstayed or undismissed for
thirty (30) consecutive days; or any Person other than the Partnership shall
apply for the appointment of a receiver, trustee or custodian for the
Partnership's assets and shall remain unstayed or undismissed for thirty (30)
consecutive days; or the Partnership shall have concealed, removed or
permitted to be concealed or removed, any part of its property, with intent
to hinder, delay or defraud its creditors or any of them or made or suffered
a transfer of any of its property or the incurring of an obligation which may
be fraudulent under any bankruptcy, fraudulent conveyance or other similar
law;
(c) A case or proceeding shall have been commenced against the
Partnership in a court having competent jurisdiction seeking a decree or
order (i) under the Bankruptcy Code, as now constituted or hereafter
amended, or any other applicable federal, state or foreign bankruptcy or
other similar law, (ii) appointing a custodian, receiver, liquidator,
assignee, trustee or sequestrator (or similar official) of the Partnership or
of any substantial part of its properties, or (iii) ordering the winding up
or liquidation of the affairs of the Partnership and such case or proceeding
shall remain undismissed or unstayed for sixty (60) consecutive days or such
court shall enter a decree or order granting the relief sought in such case
or proceeding;
(d) The Partnership (i) shall file a petition seeking relief under the
Bankruptcy Code, as now constituted or hereafter amended, or any other
applicable federal, state or foreign bankruptcy or other similar law, (ii) shall
consent to the institution of proceedings thereunder or to the filing of any
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or similar official) of
the Partnership or of any substantial part of the Partnership's properties,
(iii) shall fail generally to pay its debts as such debts become due, or (iv)
shall take any corporate action in furtherance of any such action;
(e) The General Partner or the Limited Partner shall sell, assign,
transfer, convey, pledge or otherwise encumber any of its partnership interests
in the Partnership (except pursuant to the Loan Documents);
(f) There shall occur a sale, transfer or other disposition of, or a Lien
or other encumbrance shall be placed upon, any of the Judgment, the Cause of
Action or the Proceeds(each as defined in the Partnership Agreement) other than
Permitted Liens (as defined in the Partnership Agreement);
(g) The Judgment (as defined in the Partnership Agreement) shall be
reversed by any final, non-appealable judgment or order of any court;
(h) There shall occur any material violation or default by the
Partnership, the General Partner or the Limited Partner under the Partnership
Agreement which adversely affects the Partnership or the rights of the Preferred
Limited Partner (as defined in the Partnership Agreement);
(i) The Guarantor fails to perform any of its material obligations under
this Guaranty or any agreement under which security is given therefor, or this
Guaranty is revoked or terminated by the Guarantor, or any representation or
warranty made or given by the Guarantor to Lender proves to be false or
misleading in any material respect; or
(j) The Partnership shall not have repaid to Lender the full amount of
the Capital Contribution (whether pursuant to the making of the Preferential
Distribution or otherwise) on or before April 17, 2003, or the Partnership
shall have received all Proceeds (as defined in the Partnership Agreement),
and such Proceeds shall result in an aggregate Preferential Distribution to
Lender in an amount less than the Capital Contribution.
SECTION 1.5 Waiver. The Guarantor hereby waives diligence, presentment
and demand (whether for nonpayment or protest or of acceptance, maturity,
extension of time, change in nature or form of the Guaranteed Obligation,
acceptance of further security, release of further security, composition or
agreement arrived at as to the amount of, or the terms of, the Guaranteed
Obligation, notice of adverse change in the Partnership's financial condition or
any other fact which might materially increase the risk to the Guarantor) with
respect to the Guaranteed Obligation or all other demands whatsoever and waives
the benefit of all provisions of law which are or might be in conflict with the
terms of this Guaranty. Lender will use reasonable efforts to mitigate the
damages resulting from any default under the Guaranteed Obligation.
Notwithstanding the foregoing, however, the Guarantor hereby waives any defense
based on the failure of Lender or any holder of the Guaranteed Obligation to
mitigate the damages resulting from any default with respect to the Guaranteed
Obligation. The Guarantor represents, warrants and agrees that, as of the date
of this Guaranty, its obligations under this Guaranty are not subject to any
offsets or defenses of any kind against Lender, the Partnership or any other
Person that executes the Partnership Agreement. The Guarantor hereby waives, to
the extent permitted by applicable law: (a) defenses and offsets of any kind
which may arise in the future against Lender, the Partnership or any other
Person that executes the Partnership Agreement, and (b) the right to interpose
any counterclaim or cross-claim, except to the extent that the failure to assert
any such counterclaim or
cross-claim would permanently preclude the prosecution of or recovery upon
same; provided that the Guarantor agrees that any such counterclaim will not
be used as an offset against any recovery by Lender hereunder.
SECTION 1.6 Benefit of Guaranty. The provisions of this Guaranty are
for the benefit of Lender and its respective successors, transferees, endorsees
and assigns. In the event all or any part of the Guaranteed Obligation is
transferred, endorsed or assigned by Lender to any Person or Persons, any
reference to "Lender" herein shall be deemed to refer equally to such Person or
Persons.
SECTION 1.7 Modification of Obligations. If Lender shall at any time or
from time to time, with or without the consent of, or notice to, the Guarantor:
(a) change or extend the manner, place or terms of payment of, or
renew or alter all or any portion of, the Guaranteed Obligation;
(b) take any action under or in respect of the Partnership Agreement in
the exercise of any remedy, power or privilege contained therein or available to
it at law, equity or otherwise, or waive or refrain from exercising any such
remedies, powers or privileges;
(c) amend or modify, in any manner whatsoever, the Partnership Agreement;
(d) extend or waive the time for the Guarantor's or any other Person's
performance of, or compliance with, any term, covenant or agreement on the
Guarantor's or any other Person's part to be performed or observed under the
Partnership Agreement, or waive such performance or compliance or consent to a
failure of, or departure from, such performance or compliance;
(e) take and hold security or collateral for the payment of the
Guaranteed Obligation, or sell, exchange, release, dispose of, or otherwise
deal with, any property pledged, mortgaged or conveyed, or in which Lender
has been granted a Lien, to secure any indebtedness of the Guarantor or the
Partnership to Lender;
(f) release or limit the liability of anyone who may be liable in any
manner for the payment of any amounts owed by the Guarantor or the Partnership
to Lender;
(g) modify or terminate the terms of any intercreditor or subordination
agreement pursuant to which claims of other creditors of the Guarantor or the
Partnership are subordinated to the claims of Lender; and/or
(h) apply any sums by whomever paid or however realized to any amounts
owing by the Guarantor or the Partnership to Lender in such manner as Lender
shall determine in its discretion;
then Lender shall not incur any liability to the Guarantor pursuant hereto
as a result thereof and no such action shall impair or otherwise affect or
release the obligations of the Guarantor under this Guaranty.
SECTION 1.8 Reinstatement. This Guaranty shall remain in full force and
effect and continue to be effective in the event any petition is filed by or
against the Guarantor for liquidation or reorganization, in the event the
Guarantor becomes insolvent or makes an assignment for the benefit of creditors
or in the event a receiver or trustee is appointed for all or any significant
part of the Guarantor's assets, and shall continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Guaranteed Obligation, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by
Lender, whether as a "voidable preference," "fraudulent conveyance," or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Guaranteed Obligation shall be reinstated and deemed reduced only
by such amount paid and not so rescinded, reduced, restored or returned.
SECTION 1.9 No Subrogation. Notwithstanding any payment or payments
made by the Guarantor hereunder, or any set-off or application of funds of the
Guarantor by Lender, the Guarantor shall not be entitled to be subrogated to any
of the rights of Lender against the Partnership or against any collateral
security or guaranty or right of offset held by Lender for the payment of the
Guaranteed Obligation, nor shall the Guarantor seek any reimbursement from the
Partnership in respect of payments made by the Guarantor hereunder, until the
Guaranteed Obligation has been paid in full and Lender shall no longer be a
partner in the Partnership. If any amount shall be paid to the Guarantor on
account of such subrogation rights at any time prior to time that the Guaranteed
Obligation has been paid in full and Lender is no longer a partner in the
Partnership, such amount shall be held by the Guarantor in trust for Lender,
segregated from other funds of the Guarantor, and shall, forthwith upon receipt
by the Guarantor, be turned over to Lender in the exact form received by the
Guarantor (duly indorsed by the Guarantor to Lender, if required), to be applied
against the Guaranteed Obligation, whether matured or unmatured.
SECTION 1.10 Continuing Guaranty. This Guaranty is a continuing
guaranty and shall (i) remain in full force and effect until the Guaranteed
Obligation has been paid in full and Lender shall no longer be a partner in
the Partnership, (ii) be binding upon the Guarantor and its respective
successors and permitted assigns, and (iii) inure, together with the rights
and remedies of the Lender hereunder, to the benefit of Lender and its
respective successors, transferees and assigns.
SECTION 2. INTENTIONALLY OMITTED
SECTION 3. REPRESENTATIONS WARRANTIES AND COVENANTS.
(a) The Guarantor hereby makes all representations and warranties, and
agrees to comply with all of the obligations, requirements and restrictions in
the representations, warranties and covenants contained in the Partnership
Agreement, to the extent such obligations, requirements and restrictions are
expressly applicable to the Guarantor.
(b) The Guarantor further represents and warrants to Lender that: (i) the
execution, delivery and performance by the Guarantor of this Guaranty are within
the Guarantor's corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
governmental authority, do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of incorporation
or bylaws of the Guarantor, or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Guarantor and will not result in the
creation or imposition of any Lien on any asset of the Guarantor (other than
pursuant to the Loan Documents); and (ii) this Guaranty has been duly
authorized, executed and delivered by the Guarantor and constitutes a legal,
valid and binding obligation of the Guarantor, enforceable against the Guarantor
in accordance with its terms, except as such enforceability may be limited by
the effect of any applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and general
principles of equity.
SECTION 4. FURTHER ASSURANCES. The Guarantor agrees, upon the written
request of Lender, and at the Guarantor's expense, to execute and deliver to
Lender, from time to time, any additional instruments or documents considered
reasonably necessary by Lender to cause this Guaranty to be, become or remain
valid and effective in accordance with its terms.
SECTION 5. RIGHT OF SET-OFF. In addition to and not in limitation of
all rights of offset that Lender or any other holder of the Guaranteed
Obligation may have under applicable law or under the Credit Agreement, Lender
or any other holder of the Guaranteed Obligation shall, upon the occurrence of
any Event of Default and whether or not Lender or such holder has made any
demand or whether the Guarantor's obligations are matured, have the right to
appropriate and apply to the payment of the Guarantor's obligations hereunder,
all deposits (general or special, time or demand, provisional or final) then or
thereafter held by, and other indebtedness or property then or thereafter owing,
Lender whether or not related to this Guaranty or any transaction hereunder.
SECTION 6. MISCELLANEOUS PROVISIONS.
SECTION 6.1 Amendments. Any amendment or waiver of any provision of
this Guaranty and any consent to any departure by the Guarantor from any
provision of this Guaranty, shall be effective only if made pursuant to a
written instrument executed by the Guarantor and Lender (or, if a waiver or a
consent, a written letter or agreement executed by Lender).
SECTION 6.2 Defined Terms. All capitalized terms used herein shall have
the meanings ascribed thereto in the Credit Agreement unless otherwise defined
or limited herein.
SECTION 6.3 Loan Document. This Guaranty shall be deemed to be a Loan
Document for all purposes.
SECTION 6.4 Headings. The headings in this Guaranty are for purposes of
reference only and shall not otherwise affect the meaning or construction or any
provision of this Guaranty.
SECTION 6.5 Severability. The provisions of this Guaranty are
severable, and if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction, or any other clause or provision of this
Guaranty in any jurisdiction.
SECTION 6.6 Notices. Except as otherwise provided herein, whenever it
is provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by any other party, or whenever either of the parties desires to
give or serve upon any communication with respect to this Guaranty, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and shall be given in the manner provided for in Section
10.9 of the Credit Agreement.
SECTION 6.7 Remedies Cumulative. Each right, power and remedy of Lender
provided in this Guaranty or now or hereafter existing at law or in equity or by
statute or otherwise shall be cumulative and concurrent and shall be in addition
to every other right, power or remedy provided for in this Guaranty or now or
hereafter existing at law or in equity or by statute or otherwise. The exercise
or partial exercise by Lender of any one or more of such rights, powers or
remedies shall not preclude the simultaneous or later exercise by Lender of all
such other rights, powers or remedies, and no failure or delay on the part of
Lender to exercise any such right, power or remedy shall operate as a waiver
thereof.
SECTION 6.8 Statute of Limitations. To the full extent permitted by
applicable law, the Guarantor hereby waives the right to plead any statute of
limitations as a defense to performance of its obligations under, or enforcement
of, this Guaranty.
SECTION 6.9 Final Expression. This Guaranty, together with any other
agreement executed in connection herewith, is intended by the parties as a final
expression of this Guaranty and is intended as a complete and exclusive
statement of the terms and conditions thereof. Acceptance of or acquiescence in
a course of performance rendered under this Guaranty shall not be relevant to
determine the meaning of this Guaranty even though the accepting or acquiescing
party had knowledge of the nature of the performance and opportunity for
objection.
SECTION 6.10 Financial Status. The Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Partnership and any and all endorsers and/or other guarantors of any instrument
or document evidencing all or any part of the Guaranteed Obligation and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligation or any part thereof that diligent inquiry would reveal, and the
Guarantor hereby agrees that Lender shall have no duty to advise the Guarantor
of information known to Lender regarding such condition or any such
circumstances.
SECTION 6.11 Assignability. This Guaranty shall be binding on the
Guarantor and its respective successors and shall inure to the benefit of Lender
and its respective successors and assignees. This Guaranty may not be assigned
by the Guarantor without the prior written consent of Lender.
SECTION 6.12 Non-Waiver. The failure of Lender to enforce any right or
remedy hereunder, or promptly to enforce any such right or remedy, shall not
constitute a waiver thereof, nor give rise to any estoppel against Lender, nor
excuse the Guarantor from its obligations hereunder.
SECTION 6.13 Governing Law. CONSENT TO JURISDICTION AND VENUE. EXCEPT
AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN DOCUMENTS, IN ALL RESPECTS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS GUARANTY
AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE, AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA. THE GUARANTOR HEREBY CONSENTS AND AGREES THAT THE
STATE OR FEDERAL COURTS LOCATED IN THE STATE OF GEORGIA, SHALL HAVE JURISDICTION
TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE GUARANTOR AND LENDER
PERTAINING TO THIS GUARANTY OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
GUARANTY, THE CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, PROVIDED,
THAT NOTHING IN THIS GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE LENDER FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO ENFORCE
A JUDGEMENT OR OTHER COURT ORDER IN FAVOR OF LENDER. THE GUARANTOR EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND THE GUARANTOR HEREBY WAIVES ANY OBJECTION WHICH
THE GUARANTOR MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE
OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. THE GUARANTOR HEREBY
WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINTS AND OTHER PROCESS ISSUED IN
ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND
OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL OR BY FEDERAL EXPRESS
OR OTHER COURIER SERVICE ADDRESSED TO THE GUARANTOR AT ITS ADDRESS SET FORTH FOR
NOTICES IN THE CREDIT AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE GUARANTOR'S ACTUAL RECEIPT THEREOF.
SECTION 6.14 Mutual Waiver of Jury Trial. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY
RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE
STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES
DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL
SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN THE PARTIES ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH, THIS GUARANTY, THE CREDIT AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS OR THE TRANSACTION THERETO.
SECTION 6.15 Acknowledgments. The Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Guaranty;
(b) Lender has no fiduciary relationship to the Guarantor, and the
relationship between Lender, on the one hand, and the Guarantor, on the other
hand, is solely that of creditor and debtor, respectively; and
(c) no joint venture exists among Lender or among the Guarantor and
Lender.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered as of the date first above written.
GUARANTOR: LOT$OFF CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx XX
--------------------------------
Xxxxxxx X. Xxxxxxxx XX
President
