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EXHIBIT 10.23
CONTINUING AND UNCONDITIONAL GUARANTY
March 12, 1997
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BANK: GUARANTOR:
NationsBank of Texas, N.A. Applied Quoting Systems, Inc.
Fort Worth Banking Center 000 Xxxxxx Xxxxx Xxxxx
000 X. 0xx Xxxxxx Xxxxxxxx, Xxxxxxxx Xxxxxx, XX 00000
Xxxx Xxxxx, Xxxxxxx Xxxxxx, XX 00000-0000
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"BORROWER": MiliRisk, Inc.
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(Borrower's Name)
1. GUARANTY. FOR VALUE RECEIVED, and to induce NationsBank of
Texas, N.A. (Attn: Xxxxx Xxxxxxx) ("Bank") to make loans or advances or to
extend credit or other financial accommodations or benefits, with or without
security, to or for the account of Borrower, the undersigned "Guarantor", if
more than one, then each of them jointly and severally, hereby irrevocably and
unconditionally guarantees to Bank the full and prompt payment when due,
whether by acceleration or otherwise, of any and all Liabilities (as
hereinafter defined) of Borrower to Bank. This Guaranty is continuing and
unlimited as to the amount, and is cumulative to and does not supersede any
other guaranties.
Guarantor further unconditionally guarantees the faithful, prompt and complete
compliance by Borrower with all Obligations (as hereinafter defined). The
undertakings of Guarantor hereunder are independent of the Liabilities and
Obligations of Borrower and a separate action or actions for payment, damages
or performance may be brought or prosecuted against Guarantor, whether or not
an action is brought against Borrower or to realize upon the security for the
Liabilities and/or Obligations, whether or not Borrower is joined in any such
action or actions, and whether or not notice is given or demand is made upon
Borrower.
Bank shall not be required to proceed first against Borrower, or any other
person, or entity, whether primarily or secondarily liable, or against any
collateral held by it, before resorting to Guarantor for payment, and Guarantor
shall not be entitled to assert as a defense to the enforceability of the
Guaranty any defense of Borrower with respect to any Liabilities or
Obligations.
2. PARAGRAPH HEADINGS, GOVERNING LAW AND BINDING EFFECT. Guarantor
agrees that the paragraph headings in this Guaranty are for convenience only
and that they will not limit any of the provisions of this Guaranty. Guarantor
further agrees that this Guaranty shall be deemed to have been made in the
State of Texas at Bank's address indicated at the beginning of this Guaranty
and shall be governed by, and construed in accordance with, the laws of the
State of Texas, and is performable in the City and County of Texas at Bank's
address indicated at the beginning of this Guaranty. In any litigation in
connection with or to enforce this Guaranty or any other Loan Documents,
Guarantor, and each of them, irrevocably consent to and confer personal
jurisdiction on the courts of the State of Texas or the United States courts
located within the State of
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Texas. Nothing contained herein shall, however, prevent Bank from bringing any
action or exercising any rights within any other state or jurisdiction or from
obtaining personal jurisdiction by any other means available by applicable law.
This Guaranty is binding upon Guarantor, his, their or its executors,
administrators, successors or assigns, and shall inure to the benefit of Bank,
its successors, indorsees or assigns. Anyone executing this Guaranty shall be
bound by the terms hereof without regard to execution by anyone else.
3. DEFINITIONS.
A. Terms defined in that certain Loan Agreement between
Borrower and Bank dated as of March 12, 1997 (such agreement, as
amended from time to time, being the "Loan Agreement"), as used herein
as so defined unless otherwise defined herein.
B. "Liability" or "Liabilities" shall mean without
limitation, all liabilities, overdrafts, indebtedness, and obligations
of Borrower and/or Guarantor to Bank, whether direct or indirect,
absolute or contingent, joint or several, secured or unsecured, due or
not due, contractual or tortious, liquidated or unliquidated, arising
by operation of law or otherwise, now or hereafter existing, or held
or to be held by Bank for its own account or as agent for another or
others, arising pursuant to or in connection with the Loan Documents,
including but not limited to all extensions or renewals thereof, and
all sums payable under or by virtue thereof, including without
limitation, all amounts of principal and interest, all expenses
(including reasonable attorney's fees and cost of collection) incurred
in the collection thereof or the enforcement of rights thereunder
(including without limitation, any liability arising from failure to
comply with state or federal laws, rules and regulations concerning
the control of hazardous waste or substances at or with respect to any
real estate securing any loan guaranteed hereby), whether arising in
the ordinary course of business or otherwise. If Borrower is a
partnership, corporation or other entity the term "Liability" or
"Liabilities" as used herein shall include all Liabilities to Bank of
any successor entity or entities.
C. "Obligation" or "Obligations" shall mean all terms,
conditions, covenants, agreements and undertakings of Borrower and/or
Guarantor under all notes and other documents evidencing the
Liabilities, and under all deeds to secure debt, deeds of trust,
mortgages, security agreements and other agreements, documents and
instruments executed in connection with the Liabilities or related
thereto.
4. WAIVERS BY GUARANTOR. Guarantor waives notice of acceptance of
this Guaranty, notice of any Liabilities or Obligations to which it may apply,
presentment, demand for payment, protest, notice of dishonor or nonpayment of
any Liabilities, notice of intent to accelerate, notice of acceleration, and
notice of any suit or the taking of other action by Bank against Borrower,
Guarantor or any other person, any applicable statute of limitations and any
other notice to any party liable on any Loan Document (including Guarantor).
Each Guarantor subordinates to the payment in full of the Liabilities and the
Obligations, any claim, right or remedy which such Guarantor may now have or
hereafter acquire against Borrower that arises hereunder and/or from the
performance by any other Guarantor hereunder including, without limitation, any
claim, remedy or right of subrogation, reimbursement, exoneration,
contribution, indemnification, or participation in any claim, right or remedy
of Bank against Borrower or against any security which Bank now has or
hereafter acquires, whether or not such claim, right or remedy arises in
equity, under contract, by statute, under common law or otherwise.
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Guarantor also waives the benefits of any provision of law requiring that Bank
exhaust any right or remedy, or take any action, against Borrower, any
Guarantor, any other person and/or property including but not limited to the
provisions of the Texas Civil Practice and Remedies Code Section 17.001, Texas
Rules of Civil Procedure Rule 31 and the Texas Business and Commerce Code
Chapter 34, as amended, or otherwise.
Bank may at any time and from time to time (whether before or after revocation
or termination of this Guaranty) without notice to Guarantor (except as
required by law), without incurring responsibility to Guarantor, without
impairing, releasing or otherwise affecting the Obligations of Guarantor, in
whole or in part, and without the indorsement or execution by Guarantor of any
additional consent, waiver or guaranty: (a) change the manner, place or terms
of payment, or change or extend the time of or renew, or change any interest
rate or alter any Liability or Obligation or installment thereof, or any
security therefor; (b) loan additional monies or extend additional credit to
Borrower, with or without security, thereby creating new Liabilities or
Obligations the payment or performance of which shall be guaranteed hereunder,
and the Guaranty herein made shall apply to the Liabilities and Obligations as
so changed, extended, surrendered, realized upon or otherwise altered; (c)
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
the Liabilities or Obligations and any offset there against; (d) exercise or
refrain from exercising any rights against Borrower or others (including
Guarantor) or act or refrain from acting in any other manner; (e) settle or
compromise any Liability or Obligation or any security therefor and subordinate
the payment of all or any part thereof to the payment of any Liability or
Obligation of any other parties primarily or secondarily liable on any of the
Liabilities or Obligations; (f) release or compromise any Liability of
Guarantor hereunder or any Liability or Obligation of any other parties
primarily or secondarily liable on any of the Liabilities or Obligations; or
(g) apply any sums from any sources to any Liability without regard to any
Liabilities remaining unpaid.
5. SUBORDINATION. Upon demand of Bank, Guarantor agrees that it
will not demand, take or receive from Borrower, by set-off or in any other
manner, payment of any debt, now and at any time or times hereafter owing by
Borrower to Guarantor unless and until all the Liabilities and Obligations
shall have been fully paid and performed, and any security interest, liens or
encumbrances which Guarantor now has and from time to time hereafter may have
upon any of the assets of Borrower shall be made subordinate, junior and
inferior and postponed in priority, operation and effect to any security
interest of Bank in such assets.
6. WAIVERS BY BANK. No delay on the part of Bank in exercising
any of its options, powers or rights, and no partial or single exercise
thereof, shall constitute a waiver thereof. No waiver of any of its rights
hereunder, and no modification or amendment of this Guaranty, shall be deemed
to be made by Bank unless the same shall be in writing, duly signed on behalf
of Bank; and each such waiver, if any, shall apply only with respect to the
specific instance involved, and shall in no way impair the rights of Bank or
the obligations of Guarantor to Bank in any other respect at any other time.
7. TERMINATION. This Guaranty shall be binding on each Guarantor
until written notice of revocation signed by such Guarantor or written notice
of the death of such Guarantor shall have been received by Bank,
notwithstanding change in name, location, composition or structure of, or the
dissolution, termination or increase, decrease or change in personnel, owners
or partners of Borrower, or any one or more of Guarantors. No notice of
revocation or termination hereof shall affect in any manner rights arising
under this Guaranty with respect to Liabilities or Obligations that shall have
been committed, created, contracted, assumed or incurred prior to receipt of
such written notice pursuant to any agreement entered into by Bank prior to
receipt of such notice. The sole effect of such notice of revocation or
termination hereof shall be to exclude
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from this Guaranty, Liabilities or Obligations thereafter arising that are
unconnected with Liabilities or Obligations theretofore arising or transactions
entered into theretofore.
8. PARTIAL INVALIDITY AND/OR ENFORCEABILITY OF GUARANTY. The
unenforceability or invalidity of any provision of this Guaranty shall not
affect the enforceability or validity of any other provision herein and the
invalidity or unenforceability of any provision of any Loan Document as it may
apply to any person or circumstance shall not affect the enforceability or
validity of such provision as it may apply to other persons or circumstances.
In the event Bank is required to relinquish or return the payments, the
collateral or the proceeds thereof, in whole or in part, which had been
previously applied to or retained for application against any Liability, by
reason of a proceeding arising under the Bankruptcy Code, or for any other
reason, this Guaranty shall automatically continue to be effective
notwithstanding any previous cancellation or release effected by Bank.
9. CHANGE OF STATUS. Guarantor will not become a party to a
merger or consolidation with any other company, except where Guarantor is the
surviving corporation or entity, and all covenants under this Guaranty are
assumed by the surviving entity. Further, Guarantor may not change its legal
structure, without the written consent of Bank and all covenants under this
Guaranty are assumed by the new or surviving entity. Guarantor further agrees
that this Guaranty shall be binding, legal and enforceable against Guarantor in
the event Borrower changes its name, status or type of entity.
10. FINANCIAL AND OTHER INFORMATION. Guarantor agrees to furnish
to Bank any and all financial information and any other information regarding
Guarantor and/or collateral reasonably requested in writing by Bank within ten
(10) days of the date of the request. Guarantor has made an independent
investigation of the financial condition and affairs of Borrower prior to
entering into this Guaranty, and Guarantor will continue to make such
investigation; and in entering into this Guaranty Guarantor has not relied upon
any representation of Bank as to the financial condition, operation or
creditworthiness of Borrower. Guarantor further agrees that Bank shall have no
duty or responsibility now or hereafter to make any investigation or appraisal
of Borrower on behalf of Guarantor or to provide Guarantor with any credit or
other information which may come to its attention now or hereafter.
11. NOTICES. Notice shall be deemed reasonable if mailed postage
prepaid at least five (5) days before the related action to the address of
Guarantor or Bank, at their respective addresses indicated at the beginning of
this Guaranty, or to such other address as any party may designate by written
notice to the other party. Each notice, request and demand shall be deemed
given or made, if sent by mail, upon the earlier of the date of receipt or five
(5) days after deposit in the U.S. Mail, first class postage prepaid, or if
sent by any other means, upon delivery.
12. GUARANTOR DUTIES. Guarantor shall upon notice or demand by
Bank following the occurrence of an Event of Default and while such Event of
Default is continuing, promptly and with due diligence pay all Liabilities and
perform and satisfy all Obligations for the benefit of Bank.
13. REMEDIES. Upon the failure of Guarantor to fulfill its duty to
pay all Liabilities and perform and satisfy all Obligations as required
hereunder following demand by Bank following the occurrence of an Event of
Default and while such Event of Default is continuing, Bank shall have all of
the remedies of a creditor and, to the extent applicable, of a secured party,
under all applicable law, and without limiting the
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generality of the foregoing, Bank may, at its option and without notice or
demand: (a) declare any Liability due and payable at once; (b) take possession
of any collateral pledged by Borrower or Guarantor wherever located, and sell,
resell, assign, transfer and deliver all or any part of said collateral of
Borrower or Guarantor at any public or private sale or otherwise dispose of any
or all of the collateral in its then condition, for cash or on credit or for
future delivery, and in connection therewith Bank may impose reasonable
conditions upon any such sale, and Bank, unless prohibited by law the
provisions of which cannot be waived, may purchase all or any part of said
collateral to be sold, free from and discharged of all trusts, claims, rights
or redemption and equities of Borrower or Guarantor whatsoever; Guarantor
acknowledges and agrees that the sale of any collateral through any nationally
recognized broker-dealer, investment banker or any other method common in the
securities industry shall be deemed a commercially reasonable sale under the
Uniform Commercial Code or any other equivalent statute or federal law, and
expressly waives notice thereof except as provided herein; and (c) set-off
against any or all liabilities of Guarantor all money owed by Bank or any of
its agents or affiliates in any capacity to Guarantor whether or not due, and
also set-off against all other Liabilities of Guarantor to Bank all money owed
by Bank in any capacity to Guarantor, and if exercised by Bank, Bank shall be
deemed to have exercised such right of set-off and to have made a charge
against any such money immediately upon the occurrence of such default although
made or entered on the books subsequent thereto.
Bank shall have a properly perfected security interest in all of Guarantor's
funds on deposit with Bank to secure the balance of any Liabilities and/or
Obligations that Guarantor may now or in the future owe Bank. Bank is granted a
contractual right of set-off and will not be liable for dishonoring checks or
withdrawals where the exercise of Bank's contractual right of set-off or
security interest results in insufficient funds in Guarantor's account. As
authorized by law, Guarantor grants to Bank this contractual right of set-off
and security interest in all property of Guarantor now or at anytime hereafter
in the possession of Bank, including but not limited to any joint account,
special account, account by the entireties, tenancy in common, and all
dividends and distributions now or hereafter in the possession or control of
Bank.
14. ATTORNEY FEES, COST AND EXPENSES. Guarantor shall pay all
costs of collection and reasonable attorney's fees, including reasonable
attorney's fees in connection with any suit, mediation or arbitration
proceeding, out of court payment agreement, trial, appeal, bankruptcy
proceedings or otherwise, incurred or paid by Bank in enforcing the payment of
any Liability or defending this agreement.
15. PRESERVATION OF PROPERTY. In the absence of gross negligence
or willful misconduct, Bank shall not be bound to take any steps necessary to
preserve any rights in any property pledged as collateral to Bank to secure
Borrower and/or Guarantor's Liabilities and Obligations as against prior
parties who may be liable in connection therewith, and Borrower and Guarantor
hereby agree to take any such steps. Bank, nevertheless, at any time after an
Event of Default has occurred and is continuing, may (a) take any action it
deems appropriate for the care or preservation of such property or of any
rights of Borrower and/or Guarantor or Bank therein; (b) demand, xxx for,
collect or receive any money or property at any time due, payable or receivable
on account of or in exchange for any property pledged as collateral, to Bank to
secure Borrower and/or Guarantor's Liabilities to Bank; (c) compromise and
settle with any person liable on such property; or (d) extend the time of
payment or otherwise change the terms of the Loan Documents as to any party
liable on the Loan Documents, all without notice to, without incurring
responsibility to, and without affecting any of the Obligations or Liabilities
of Guarantor.
16. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE
PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO
THIS
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INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR
ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN
THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON
ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY
PARTY TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING AN ACTION, INCLUDING
A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER
SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN
THE COUNTY OF ANY BORROWER'S DOMICILE, OR IF THERE IS REAL OR PERSONAL
PROPERTY COLLATERAL, IN THE COUNTY WHERE SUCH REAL OR PERSONAL
PROPERTY IS LOCATED AT THE TIME OF THE EXECUTION OF THIS INSTRUMENT,
AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN
ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM
ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WELL BE COMMENCED
WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR
SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE
COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION
PROVISION SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY
OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS
CONTAINED IN THIS INSTRUMENT, AGREEMENT OR DOCUMENT; OR (II) BE A
WAIVER BY BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91
OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF
BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT
LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR
ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF,
WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. BANK MAY EXERCISE
SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH
PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY
OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS INSTRUMENT,
AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR
THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR
PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE
RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO
SUCH REMEDIES.
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17. CONTROLLING DOCUMENT. To the extent that this Continuing and
Unconditional Guaranty conflicts with or is in any way incompatible with any
other Loan Document concerning this Obligation, the Loan Agreement shall
control over any Loan Document, and if the Loan Agreement does not address an
issue, then each Loan Document shall control to the extent that it deals most
specifically with an issue.
18. NOTICE OF FINAL AGREEMENT. THIS WRITTEN CONTINUING AND
UNCONDITIONAL GUARANTY 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.
19. LIMITATION ON LIABILITY. The liability of Guarantor with
respect to the Obligations shall not exceed the Maximum Amount (as defined
below) for Guarantor. "Maximum Amount" means the greater of (a) the amount of
the economic benefit received by Guarantor from the Obligations whether by loan
proceeds to purchase assets or perform contracts for Guarantor or by loan
proceeds being otherwise available to Guarantor through intercompany loans,
advances, capital contributions or otherwise, or (b) the highest of (i) 95% of
the Adjusted Net Worth (as defined below) of Guarantor as of the date hereof,
(ii) 95% of the Adjusted Net Worth of Guarantor as of the date of the
commencement of a case under Title 11 of the United States Bankruptcy Code
involving Borrower or Guarantor, or (iii) 95% of the Adjusted Net Worth of
Guarantor as of the date enforcement hereunder is sought; provided however,
notwithstanding anything herein to the contrary, the Maximum Amount for
Guarantor shall be limited to the Maximum Amount of liability of Guarantor that
can be incurred without rendering this Guaranty voidable under applicable law
relating to fraudulent conveyances or fraudulent transfers. "Adjusted Net
Worth" means the following, all determined in accordance with applicable
federal and state laws governing determinations of the insolvency of debtors
generally: (x) the aggregate fair salable value of the assets of Guarantor,
minus (y) the amount of all liabilities of Guarantor (including contingent
liabilities, but excluding liabilities of Guarantor under this Guaranty, and
any other Loan Documents executed by Guarantor for the benefit of Lender).
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be
executed on this 12th day of March, 1997.
NationsBank of Texas, N.A. GUARANTOR:
APPLIED QUOTING SYSTEMS, INC.,
a Wisconsin Corporation
By /s/ XXXXX XXXXXXX By /s/ F. XXXXXX XXXXXX, III
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Xxxxx Xxxxxxx F. Xxxxxx Xxxxxx, III
Vice President Chairman of the Board
By /s/ XXX X. XXXXXX
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Xxx X. Xxxxxx
Secretary
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CORPORATE ACKNOWLEDGMENT
State of Texas )
)
County of Tarrant )
This instrument was acknowledged before me on March 12, 1997, by F. Xxxxxx
Xxxxxx, III, Chairman of the Board and Xxx X. Xxxxxx, Secretary of Applied
Quoting Systems, Inc., a Wisconsin corporation, on behalf of said corporation.
[SEAL] /s/ XXXXXX XXXX
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Notary Public, State of Texas
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Printed Name of Notary
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My commission expires:
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[NOTARY STAMP - XXXXXX XXXX
MY COMMISSION EXPIRES
FEBRUARY 8, 2000]
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