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EXHIBIT "D"
SPECIFIC GUARANTY
This guaranty, dated the 10th day of September, 1997, is executed by
the undersigned, XXXXX X. XXXXXX (hereinafter referred to as "Guarantor"), in
favor of _________________ (hereinafter referred to as "Obligee").
WITNESSETH:
WHEREAS, RICHMOND 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 $175,000,000.00. 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 the 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 waive 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, obligations 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 or Borrower to Obligee remains unpaid;
and
(f) Release Borrower or any other guarantor of Borrower's Indebtedness
of 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 any 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 of 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 PARTS.
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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