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EXHIBIT D
SPECIFIC GUARANTY
This guaranty, dated the 12th day of June, 1998, is executed by the
undersigned, XXXXX X. XXXXXX (hereinafter referred to as "Guarantor"), in favor
of (hereinafter referred to as "Obligee").
W I T N E S S E T H:
WHEREAS, HOUSTON POST OAK PARTNERS, LTD. (hereinafter referred to as
"Borrower"), and Guarantor desire Obligee to extend financial and credit
accommodations to Borrower;
WHEREAS, Obligee is willing to Extend credit and financial accommodations
to Borrower only upon the condition that Guarantor execute and deliver to
Obligee This Specific Guaranty and undertake the obligations of Guarantor set
out herein;
NOW, THEREFORE, in consideration of financial and credit accommodations
extended or to be extended by Obligee to Borrower and other good and valuable
consideration, receipt of which is hereby acknowledged, Guarantor agrees as
follows:
1. OBLIGATION OF GUARANTOR.
Guarantor absolutely and unconditionally guarantees to the Obligee the
payment and performance of all indebtedness, obligations and liabilities (the
"Indebtedness") of or owed by Borrower to Obligee (and also to others, to the
extent of participations granted them by Obligee) now existing or hereafter
incurred or created, direct or indirect, absolute or contingent, arising in
connection with that one certain Promissory Note of even date herewith from
Borrower to Obligee in the original principal amount of $1,650,000.00. The
obligations of Guarantor contained in this guaranty shall be absolute and
unconditional, without regard to the validity, legality, regularity or
enforceability of the Indebtedness or any instrument evidencing, securing or
relating to said Indebtedness and shall not be reduced or affected in any way by
any failure or omission to enforce any right against Borrower or Guarantor or by
any other action which may in any manner or to any extent vary the risks of
Guarantor or which might otherwise constitute a legal or equitable discharge of
Guarantor; it being the purpose and intent of the parties hereto that this
guaranty and the obligations of Guarantor hereunder shall be absolute and
unconditional under any and all circumstances and shall not be discharged except
by payment and performance as herein provided. Guarantor agrees that, without
the necessity of any reservation of rights against Guarantor and without notice
to or further assent by Guarantor, (1) any demand for payment of any or all of
the Indebtedness may be rescinded by the party making such demand and the
Indebtedness reinstated or continued, and (2) the Indebtedness or any collateral
security therefor or rights of offset with respect thereto may, from time to
time, in whole or in part, be renewed, extended, modified, rearranged,
compromised or released by Obligee or, without notice to or further assent by
Guarantor, who will remain bound hereunder; notwithstanding any such rescission,
renewal, extension, modification, rearrangement, compromise or release.
2. WAIVER BY GUARANTOR.
Guarantor waives:
(a) Notice of the granting of any loan to Borrower or the incurring of any
indebtedness of Borrower or the terms or conditions thereof;
(b) Presentment, demand for payment, protest or notice of dishonor of any
indebtedness of Borrower;
(c) Any other notice to which Guarantor might be entitled;
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(d) Joinder of the Borrower in any suit or action to enforce this guaranty,
in particular, and without in any way limiting the foregoing, Guarantor
waives any right to have Obligee xxx Borrower or take any other action
against Borrower as a prerequisite to Obligee's taking any action or
bringing any suit against Guarantor under this guaranty; and
(e) The right to interpose against Obligee any setoff or counterclaim of
any nature or description, whether of Borrower or Guarantor, in the
computation of any amounts payable by Guarantor hereunder or in any
litigation arising out of or relating to this guaranty; and Guarantor
further agrees that his obligations and liabilities hereunder shall not be
affected or impaired, regardless of any impossibility or illegality of
performance on the part of the Borrower.
3. RIGHTS OF OBLIGEE.
Obligee may, at any time, without consent of or notice to Guarantor,
without incurring responsibility to the Guarantor, without impairing or
releasing the obligations of the Guarantor, upon or without terms or conditions
and in whole or in part:
(a) Change the manner, place or terms of payment or change or extend the
time of payment of, renew or alter any indebtedness, obligation or
liability of Borrower hereby guaranteed or any liabilities incurred
directly or indirectly hereunder and the guaranty herein made shall apply
to the indebtedness, obligations and liabilities of the Borrower, changed,
extended, renewed or altered in any manner;
(b) Sell, exchange, release, surrender, realize, upon or otherwise, deal
with in any manner and in any order, any property at any time pledged or
mortgaged to secure or securing the indebtedness, obligations or
liabilities hereby guaranteed or pledged or mortgaged to secure this
guaranty or any indebtedness, obligations or liabilities incurred directly
or indirectly hereunder or any offset against any of said indebtedness,
obligations or liabilities;
(c) Exercise or refrain from exercising any rights against Borrower or
others or otherwise act or refrain from acting;
(d) Settle or compromise any indebtedness, obligations or liabilities
hereby guaranteed or hereby incurred and may subordinate the payment of all
or any part of such liabilities to the payment of any liabilities which may
be due Obligee or others;
(e) Apply any sums paid to any Indebtedness of Borrower to Obligee,
regardless of what Indebtedness of Borrower to Obligee remains unpaid; and
(f) Release Borrower or any other guarantor of Borrower's Indebtedness to
Obligee from any liability to Obligee.
4. TERMINATION OF GUARANTY.
The obligations of Guarantor hereunder shall terminate upon, and only upon,
written release of Guarantor by Obligee; provided, however, no termination
hereof shall affect in any manner any rights of Obligee arising under this
guaranty with respect to liabilities arising prior to such written release by
Obligee and the sole effect of any such written release by Obligee shall be to
exclude from this guaranty liabilities arising thereafter which are unrelated to
liabilities theretofore arising or transactions theretofore entered into.
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5. PARTIES IN INTEREST.
This guaranty shall continue in full force and effect, notwithstanding the
death, incapacity or legal disability of Guarantor and shall be binding on the
successors, assigns, estate, personal representatives and heirs, as the case may
be, of Guarantor and shall inure to the benefit of Obligee, its successors,
heirs and assigns.
6. PLACE OF PERFORMANCE.
The obligations of Guarantor hereunder shall be payable and performable at
Houston, Xxxxxx County, Texas.
7. ADDITIONAL OBLIGATIONS OF GUARANTOR.
In addition to obligations of Guarantor set forth elsewhere herein,
Guarantor agrees to pay to Obligee:
(a) All costs, attorney's fees and other expenses incurred by Obligee in an
effort to enforce and/or collect all or any part of the Indebtedness; and
(b) All costs, attorney's fees and expenses incurred by Obligee in an
effort to enforce or collect the obligations of Guarantor pursuant to this
guaranty.
8. COMPLIANCE WITH LAWS.
It is the intention of the parties hereto to comply with all laws in force
and applicable hereto; accordingly, it is agreed that, notwithstanding any
provision to the contrary herein or in any note, instrument or other document
evidencing or securing the Indebtedness or otherwise related hereto or thereto,
no such provision shall require the payment or permit the collection of interest
from Guarantor in excess of the maximum non-usurious rate permitted by
applicable law. If any excess of interest in such respect is provided for or
shall be adjudged to be so provided for, then in such event, (i) the provisions
of this paragraph shall govern and control, (ii) neither Guarantor nor his
heirs, executors or administrators, successors or assigns or any other party
liable under Guarantor, shall be obligated to pay the amount of such interest,
to the extent that it is in excess of the maximum non-usurious amount permitted
by applicable law, (iii) any such excess which may have been collected shall be,
at Obligee's option, either refunded or applied to the Indebtedness, and (iv)
the effective rate of interest covered by this guaranty shall be automatically
subject to reduction to the maximum non-usurious lawful contract rate allowed
under the applicable law as now or hereafter construed by the courts having
jurisdiction thereof.
9. NO WAIVER BY OR ESTOPPEL AGAINST OBLIGEE.
No failure to exercise and no delay in exercising on the part of Obligee
any right, power or privilege hereunder or at law or in equity shall operate as
waiver thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude any other or future exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
are cumulative and not exclusive of any rights or remedies provided by law or in
equity.
10. SUBROGATION AND SUBORDINATION.
Guarantor hereby agrees that Guarantor shall not be entitled to be
subrogated to any of the rights of Obligee or my of its successors, endorsees
and assigns against the Borrower of any collateral security held for payment of
the Indebtedness until all of the Indebtedness has been paid in full, performed
and discharged. Guarantor further agrees that any indebtedness of Borrower to
Guarantor, whether now existing or hereafter incurred, shall be subordinate to
the Indebtedness of Borrower to Obligee and shall not be paid or entitled to be
paid in whole or in part until the Indebtedness of Borrower to Obligee has been
paid and satisfied in full.
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11. REINSTATEMENT OF OBLIGATIONS.
This guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time payment of any of the Indebtedness is rescinded or must
otherwise be restored or returned to the Borrower upon insolvency, bankruptcy or
reorganization of Borrower or otherwise, all as though such payment had never
been made.
12. GOVERNING LAW.
This guaranty has been executed and delivered in and shall be construed
and enforced in accordance with the laws of the State of Texas.
13. JURISDICTION AND VENUE.
Any suit or action by Guarantor to enforce any right under this agreement
or to obtain a declaration thereof shall be brought in a court of competent
jurisdiction in Xxxxxx County, Texas. Any suit by Obligee to enforce any right
hereunder or to obtain a declaration of any right or obligation hereunder may,
at the sole option of Obligee, be brought (i) in any court of competent
jurisdiction in Houston, Xxxxxx County, Texas, or (ii) in any court of competent
jurisdiction where jurisdiction may be had over Guarantor. Guarantor hereby
expressly consents to the jurisdiction of the foregoing courts for such purpose,
14. SEVERABILITY.
If any clause or portion of this guaranty shall be declared unenforceable,
invalid or illegal, the remaining clauses and portions shall not be affected
thereby.
15. PAROL EVIDENCE.
Guarantor hereby acknowledges that this guaranty sets forth all the terms
of the agreement between Obligee and Guarantor and that any statements,
representations or affirmations made by the Obligee and its agents or Guarantor
prior to or contemporaneously with the execution of this guaranty are to be of
no force and effect whatever in determining the liability of Guarantor under
this guaranty. Without limiting the foregoing, Guarantor warrants, represents
and acknowledges that Obligee has made no representations or statements to
Guarantor which have been relied upon by Guarantor in executing this guaranty
concerning the financial condition of Borrower, the likelihood that Guarantor
will be required to pay or perform the Indebtedness hereby guaranteed or
otherwise.
16. INDEPENDENT GUARANTY.
This guaranty shall be independent of, in addition to and cumulative of any
other guaranty which may be executed by any guarantor in favor of the Obligee.
17. MULTIPLE PARTIES.
Anyone signing this guaranty shall be bound thereby, whether or not any
other party signs this guaranty or is released therefrom at any time.
18. INSOLVENCY OF GUARANTOR.
Without limiting the other provisions hereof, in the event of bankruptcy or
insolvency of Guarantor, the entire Indebtedness of Borrower, whether direct or
indirect, absolute or contingent, due or to become due, shall become due and
payable from Guarantor to Obligee and shall be paid immediately by Guarantor to
Obligee.
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EXECUTED AND EFFECTIVE as of the date first set forth above.
/s/ XXXXX X. XXXXXX
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XXXXX X. XXXXXX
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