Exhibit (3)(d)
GUARANTY AGREEMENT
dated as of August 15, 2000
among
BANK OF LOUISVILLE
as the Lender
ORIG, LLC
as the Borrower
and
XXXXX X. XXXXX
as the Guarantor
GUARANTY AGREEMENT
------------------
This is a Guaranty Agreement dated as of August 15, 2000, (this
"Agreement"), among BANK OF LOUISVILLE (the "Lender"); ORIG, LLC (the
"Borrower"); XXXXX X. XXXXX (the "Guarantor").
SECTION 1
Recitals and Definitions
------------------------
This Agreement is entered into concurrently with and pursuant to a Loan
Agreement (the "Loan Agreement"), dated as of August 15, 2000, between the
Lender and the Borrower and joined in by the Guarantor. Capitalized terms not
otherwise defined herein shall have the meanings given them in the Loan
Agreement. Pursuant to the Loan Agreement, the Borrower has executed and
delivered to the Lender three Revolving Credit Notes each dated August 15, 2000
and in the principal amount Two Million Dollars ($2,000,000) (for a total of Six
Million Dollars ($6,000,000.00)) and payable to the order of the Lender (such
three Revolving Credit Notes, including any notes or other instruments issued in
renewal, replacement, extension, modification, novation and/or revival thereof,
the "Revolving Credit Notes") and various other Borrower Documents (as that term
is defined in the Loan Agreement).
SECTION 2
Guaranty of Payment and Performance
-----------------------------------
The Guarantor, intending to be bound as an accommodation party for the
Borrower, jointly and severally, absolutely and unconditionally guarantees the
following obligations and/or liabilities (collectively, the "Guaranteed
Principal"): (a) the prompt payment in full by the Borrower of all obligations
under the Revolving Credit Notes; and (b) the punctual and faithful performance
and observance by the Borrower of all other obligations and undertakings to be
performed or observed pursuant to the Loan Agreement and the other Borrower
Documents. In addition to the Guaranteed Principal, the Guarantor, intending to
be bound as an accommodation party for the Borrower, jointly and severally,
absolutely and unconditionally guarantee the following obligations and/or
liabilities (collectively, the "Other Guaranteed Amounts"): (x) any and all
interest accruing on the Guaranteed Principal under the Revolving Credit Notes,
the Loan Agreement, and/or any other of the Borrower Documents; and (y) that the
Guarantor will, upon demand, pay to the Lender any and all fees, charges and
costs of collecting the Guaranteed Principal or otherwise enforcing the Lender's
rights under this Agreement, including without limitation the reasonable fees
and expenses of the Lender's counsel. Notwithstanding the foregoing, the maximum
aggregate liability of the Guarantor under this Agreement for the Guaranteed
Principal shall not exceed the Guarantor Maximum. (For purposes of this Section,
"Guarantor Maximum" at any time shall mean the lesser of (i) $6,000,000.00, or
(ii) the greater of (A) the Guaranteed Principal multiplied by the percentage of
the equity interests of the Borrower owned by the Guarantor (directly or
indirectly, and legally or beneficially) on either (I) the date of an Event of
Default under the Loan Agreement or (II) the date on which the Lender makes a
demand for payment from the Guarantor under this Agreement (it being within the
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discretion of the Lender to choose between the dates in (I) and (II)), or (B)
$600,000.00). The Guaranteed Principal, limited to the Guarantor Maximum, and
the Other Guaranteed Amounts are sometimes referenced in this Agreement as the
"Guaranteed Obligations." The Guaranteed Obligations under this Agreement shall
be in addition to the maximum aggregate liability of the Guarantor or any other
guarantor to the Lender under any guaranty agreement of the Guarantor or any
other guarantor heretofore or hereafter given.
SECTION 3
Obligations Unconditional
-------------------------
This is an unconditional and absolute guaranty of payment and performance.
If, for any reason, the Borrower fails to observe or perform any obligation,
undertaking or condition (whether affirmative or negative) in the Loan Agreement
or any other of the Borrower Documents, to be performed or observed by the
Borrower or if any amounts payable by the Borrower pursuant to the Revolving
Credit Note or the Loan Agreement are not paid promptly when due or any Event of
Default occurs, the Guarantor shall promptly perform or observe or cause to be
performed or observed each such obligation, undertaking or condition and
forthwith shall pay such amount at the place and to the person entitled thereto
pursuant to the Revolving Credit Note or the Loan Agreement, regardless of any
set-off or counterclaim which the Borrower may have or assert, and regardless of
whether or not the Lender or anyone on behalf of the Lender shall have
instituted any suit, action or proceeding or exhausted their remedies or taken
any steps to enforce any rights against the Borrower or any other person to
compel such performance or to collect all or any part of such amount pursuant to
the provisions of the Revolving Credit Note, the Loan Agreement or any other of
the Borrower Documents, or at law or in equity, or otherwise, and regardless of
any other condition or contingency. The liability of the Guarantor shall be for
the payment in full of the entire amount of the Guaranteed Obligations, jointly
and severally with that of the Borrower, any co-maker, or accommodation party,
or other guarantor, subject to the Maximum Liability Amount. This Agreement
shall not, however, be construed to require the Guarantor to make any payment
which is duplicative of a payment already made by the Guarantor or by the
Borrower, any co-maker, accommodation party, or any other guarantor, except as
provided in Section 8 of this Agreement.
SECTION 4
Waivers and Agreements
----------------------
The Guarantor hereby unconditionally:
4.01 Waives any requirement that the Lender first seek to enforce remedies
against the Borrower or any other person or entity before seeking to enforce
this Agreement against either Guarantor.
4.02 Waives any requirement that the Lender first make demand upon, or seek
to enforce remedies against, to Guarantor, or against any other guarantor of any
of the Guaranteed Obligations in any particular order, before demanding payment
from, or seeking to enforce this
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Agreement against, the Guarantor or any other guarantor. The Guarantor
acknowledges that the Lender, in the Lender's sole discretion, may enforce
remedies against the Guarantor pursuant to this Agreement and not enforce
similar remedies against any other guarantor with respect to the Guaranteed
Obligations or vice versa. The Guarantor further acknowledges that the
enforcement of remedies against the Guarantor in lieu of enforcing remedies
against any other guarantor, or vice versa, shall not affect the validity or
enforceability of the Lender's rights and/or remedies under this Agreement or
any other guaranty agreement guarantying any of the Guaranteed Obligations.
4.03 Waives any requirement that the Lender first seek to enforce remedies
against any property in which the Lender may have any interest securing any (a)
indebtedness which either Guarantor has guaranteed under this Agreement, or (b)
guaranty obligations of any other guarantor, or enforcing any such rights in any
particular order, before demanding payment from, or seeking to enforce this
Agreement against, either Guarantor.
4.04 Covenants that the Guarantor's obligation under this Agreement will
not be discharged except by complete payment and performance of all of the
Guaranteed Obligations, including, without limitation, all obligations of the
Borrower under the Revolving Credit Note, and all other obligations of the
Borrower under the Loan Agreement and the other Borrower Documents, or by
payment in full by the Guarantor of the Guaranteed Obligations in accordance
with the terms of this Agreement.
4.05 Agrees that this Agreement shall remain in full force and effect
without regard to, and shall not be affected or impaired by any invalidity,
irregularity or unenforceability in whole or in part of the Revolving Credit
Note, the Loan Agreement, any other of the Borrower Documents, or any limitation
of the liability of the Borrower thereunder, or any limitation on the method or
terms of payment thereunder which may now or hereafter be caused or imposed in
any manner whatsoever.
4.06 Waives any obligation that the Lender might otherwise have to marshal
assets or to proceed against any particular persons or assets in any particular
order.
4.07 Waives any defenses either Guarantor may have arising out of or in any
way related to any or all of the following:
(a) Any failure on the part of the Lender to perfect the Lender's security
interest in or lien against, or any lack of diligence in connection with or
failure to foreclose or realize upon, any property, whether real or personal,
tangible or intangible, now or hereafter granted to the Lender as collateral
security for any of (1) the Borrower's liabilities or obligations, or (2) either
Guarantor's liabilities or obligations hereunder, or (3) any other guarantor's
liabilities or obligations under any other guaranty agreement relating to all or
any part of the Guaranteed Obligations.
(b) The voluntary or involuntary discharge or release of any of the
Guaranteed Obligations, or of any co-maker, accommodation party, surety or any
other person or entity,
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including but not limited to, any other guarantor, whether voluntarily or by
reason of bankruptcy, insolvency, or other laws affecting the rights of
creditors generally or otherwise.
(c) The receipt by the Lender of any provisional, invalid or refundable
payment if such payment is thereafter revoked or if such payment is returned by
the Lender to or for the benefit of the Borrower, either Guarantor or any other
guarantor or the creditors of either.
(d) Any right of set-off or counterclaim against the Lender which would
otherwise impair the Lender's rights against either Guarantor or any other
guarantor.
(e) Any change in the composition, ownership or business of the Borrower,
the Guarantor or any other guarantor.
SECTION 5
Obligations Not Impaired
------------------------
The obligations of the Guarantor under this Agreement are joint and
several, and intended to be in addition to and independent of those of the
Borrower under the Guaranteed Obligations. In addition, the Guarantor
acknowledges that the Guarantor's obligations under this Agreement are
independent of and in addition to the obligations of any other guarantor(s)
under any other guaranty agreement(s) related to all or any part of the
Guaranteed Obligations. To that end, the obligations, undertakings and
conditions to be performed or observed by the Guarantor under this Agreement
shall not be affected or impaired by reason of the happening from time to time
and one or more times of any of the following with respect to the Revolving
Credit Note, the Loan Agreement, or any assignment of the rights of the Lender
under this Agreement whether or not with notice to, or further consent of, the
Guarantor:
5.01 Waiver by the Lender or any other person(s) of the observance or
performance by (a) the Borrower of any obligation, undertaking or condition
contained in the Revolving Credit Note, the Loan Agreement or any other of the
Borrower Documents, or (b) any other guarantor of any liability or obligation
contained in its guaranty agreement (except for the particular observance or
performance so waived).
5.02 Extension of the time for payment by the Borrower or any guarantor of
any amount owing or payable under the Revolving Credit Note, the Loan Agreement,
or any other guaranty agreement or of the time for payment or performance by the
Borrower, any other guarantor(s) or any other person of any other obligation
under or arising out of the Guaranteed Obligations, or otherwise under or with
respect to the Revolving Credit Note, the Loan Agreement, any other of the
Borrower Documents, or any other guaranty agreement related to all or any part
of the Guaranteed Obligations or the extension or the renewal of any thereof
(except for the particular extension or renewal so granted).
5.03 Modification or amendment (whether material or otherwise) of any term,
obligation, undertaking or condition to be performed by the Borrower or any
other guarantor(s) under the Guaranteed Obligations, or otherwise under or with
respect to the Revolving Credit
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Note, the Loan Agreement, any other of the Borrower Documents, or any other
guaranty agreement.
5.04 Taking or omitting to take any action referred to in the Revolving
Credit Note, the Loan Agreement, any other of the Borrower Documents, or any
other guaranty agreement.
5.05 Any failure, omission, delay or lack on the part of the Lender or any
other person, to enforce, assert or exercise any right, power or remedy
conferred on the Lender or any other person in the Revolving Credit Note, the
Loan Agreement, any other of the Borrower Documents, or any other guaranty
agreement, or any action on the part of the Lender or any other person granting
indulgence or extension in any form, or suspending any such right, power or
remedy as to any person or entity.
5.06 Voluntary or involuntary liquidation, dissolution, sale or other
disposition of all or substantially all of the assets, marshalling of assets and
liability, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of, or other
similar proceeding affecting the Borrower or any other guarantor(s), or the
assets of the Borrower or any other guarantor(s), or the disaffirmance,
rejection or postponement in any such proceeding of any other obligations or
undertakings of the Borrower or any other guarantor(s) set forth in the
Revolving Credit Note, the Loan Agreement, any of the Borrower Documents or any
other guaranty agreement.
5.07 Release or discharge of the Borrower or any other guarantor(s) from
the performance or observance of any obligation, undertaking or condition to be
performed by the Borrower or any other guarantor(s) under the Revolving Credit
Note, the Loan Agreement, any other of the Borrower Documents or any other
guaranty agreement by operation of law or otherwise.
5.08 Release, substitution, exchange, dissipation, surrender or replacement
of any collateral security for any liability or obligation of the Borrower or
any other guarantor(s), with respect to all or any part of the Guaranteed
Obligations or otherwise, under or with respect to the Borrower Documents or any
other guaranty agreement, whether or not permitted in any of the Borrower
Documents.
5.09 Receipt and acceptance by the Lender or any other person or entity of
notes, checks or other instruments for the payment of money made by the Borrower
or other person or entity, and extension or renewals of such instrument (except
to the extent that such instruments are paid or converted into cash).
5.10 Any failure of title with respect to the interest of the Borrower or
Lender in the collateral security for any liability or obligation of the
Borrower for any other guarantor(s) or any parts or components thereof.
5.11 The dissolution, merger or consolidation of the Borrower, either
Guarantor or any other guarantor(s) or the sale, divesture or other disposition
of any or all of the interest of the Borrower, either Guarantor or any other
guarantor(s) in any collateral.
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5.12 Any action or inaction (including, without limitation, the election of
the Lender to proceed with a judicial or nonjudicial foreclosure against any
real or personal property security it holds) by the Lender or any other persons
which results in any impairment or destruction of (a) any subrogation or rights
of either Guarantor, (b) any rights of either Guarantor to proceed against the
Borrowers, and other guarantor(s) or any other person for reimbursement, or (c)
any rights of Lender with respect to any collateral security for any liability
or obligation of the Borrowers with respect to all or any part of the Guaranteed
Obligations, or otherwise under or with respect to the Borrower Documents, or
for any obligation under any other guaranty agreement.
5.13 Any action taken by the Lender or any other person or entity against
the Borrower or Guarantor which would afford the Borrower or any guarantor a
defense based on any anti-deficiency protection under the laws of any
jurisdiction.
5.14 Change, exchange, waiver, release or subordination, in whole or in
part, of any security interest, mortgage, pledge or other lien now or hereafter
held by the Lender as collateral security for any of the Guaranteed Obligations,
or any other liability or obligation of the Borrower under the Borrower
Documents, or for any obligations under any other guaranty agreement and the
justifiable or unjustifiable impairment of any such collateral security, or
suspension of the right to enforce against any such collateral security.
5.15 Grant of indulgences, forbearances or compromises with respect to, and
any settlement made with, Borrower, or any co-maker, accommodation party,
surety, any other guarantor(s) or any other person or entity, or with respect to
any of the Guaranteed Obligations or the obligations under any other guaranty
agreement.
5.16 Extension of loans, credit, advances, discounts and other financial
accommodations to the Borrower by the Lender in addition to, or in excess of,
the amount of the Guaranteed Obligations.
5.17 Acceptance by the Lender of any late, partial or interest-only payment
with respect to the Guaranteed Obligations.
5.18 Lack of diligence by the Lender in collecting, or attempting to
collect, the Guaranteed Obligations, the obligations under any other guaranty
agreement or any other obligations or liabilities or in otherwise dealing with
the Borrower, the Guaranteed Obligations or any co-maker, accommodation party,
surety, or any other guarantor(s), or any other person or entity.
5.19 The calling for and accepting, at any time the Lender deems necessary
or appropriate, as additional security, the signature or signatures of
additional parties, or a security interest in property of any kind or
description, or both.
5.20 Any other cause, whether similar or dissimilar to the foregoing. It is
the intention of the Guarantor that this Agreement constitutes an absolute and
unconditional guaranty in any
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and all circumstances, and this Agreement shall be discharged only by the
payment in full of all sums guaranteed and by the performance in full of all of
the Guaranteed Obligations.
SECTION 6
Waiver of Notice
----------------
The Guarantor waives notice of acceptance of this Agreement by the Lender,
notice of execution and delivery of the Revolving Credit Note, the Loan
Agreement any other of the Borrower Documents, and any other guaranty agreement,
or any instrument referred to in such documents. The Guarantor further waives,
to the fullest extent permitted by applicable law, each ande very notice to
which the Guarantor would otherwise be entitled under principles of guaranty or
suretyship law. Without limiting the generality of the foregoing, the Guarantor
hereby expressly waives all notices and defenses whatsoever with respect to this
Agreement or with respect to the Guaranteed Obligations, including, but not
limited to, notice of the Lender's acceptance of the Agreement or its intention
to act, or its action, in reliance upon this Agreement; notice of the present
existence or future incurring by the Borrower of any Guaranteed Obligations or
any other obligations or liability or any terms or amount thereof or any change
therein; notice of any default or nonpayment (whether to the Guaranteed
Obligations or of any other obligation or liability) by the Borrower or any
accommodation party, co-maker, surety, pledgor, mortgagor, grantor of security,
any other guarantor(s) or any other person or entity; notice of the obtaining or
release of any guaranty or surety agreement (in addition to this Agreement),
pledge, mortgage, security interest, assignment, or other security for any of
the Guaranteed Obligations; notice of dishonor; notice of nonpayment; notice of
acceleration of the Guaranteed Obligations; notice of the making of a demand for
payment of the liability or obligations of the Borrower; presentment and notice
of presentment; protest and notice of protest; demand and notice of demand;
nonpayment and notice of nonpayment; notice of the disposition of any collateral
held to secure the Guaranteed Obligations; and any other notice required by law
or otherwise. The Guarantor recognizes and hereby guarantees a Revolving Credit
Note which may vary in the amount of aggregate principal outstanding, and waives
notice of all disbursements made to the Borrower pursuant to the Loan Agreement.
In any event, the Guarantor's obligations under this Agreement shall not exceed
the limitations provided in Section 2 of this Agreement.
SECTION 7
Waiver of Subrogation
---------------------
The Guarantor hereby unconditionally waives any right of subrogation which
they might have acquired by way of any payment made under this Agreement or
otherwise. Accordingly, the Guarantor shall not become a creditor of the
Borrower as a result of the payment made by any Guarantor under this agreement.
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SECTION 8
Rescission of Payment
---------------------
Notwithstanding Section 9 below, this Agreement shall continue to be
effective, or be reinstated as the case may be, as though such payment had not
been made, if any payment by the Borrower pursuant to the terms and conditions
of the Revolving Credit Note, the Loan Agreement, this Agreement or any other of
the Borrower Documents is rescinded or must otherwise be restored or returned by
the Lender for any reason, including, without limitation (a) the invalidity or
unenforceability of the obligation paid, for any reason; (b) failure or
insufficiency of consideration for the obligation paid, or (c) the insolvency,
bankruptcy or reorganization of the Borrower or any of any other guarantor(s).
SECTION 9
Termination
-----------
This Agreement shall remain in full force and effect until, and shall
terminate (as "terminate" is used in Kentucky Revised Statutes ss. 371.065) on
the earlier of (a) the day following the date of (1) payment in full upon
maturity of all sums payable by the Borrower under, and (2) performance in full
of all other obligations of the Borrower in accordance with the provisions of,
the Revolving Credit Note, the Loan Agreement, this Agreement, all of the other
Borrower Documents, and any extension and renewals thereof; or (b) August 31,
2006; provided, however, that termination of this Agreement on such termination
date shall not affect in any manner the liability of the Guarantor with respect
to (1) the Guaranteed Obligations which are created or incurred prior to such
termination date ("Prior Obligations"), or (2) extension or renewals of,
interest accruing on, or fees, costs or expenses incurred with respect to, such
Prior Obligations prior to, on or after such termination date.
SECTION 10
Acknowledgment
--------------
The Guarantor acknowledges that (a) pursuant to Section 2.02 of the Loan
Agreement, the Revolving Credit (as that term is defined in the Loan Agreement)
shall be effective as of the date of the Loan Agreement, and unless the
Revolving Credit is sooner terminated (or extended in the Lender's sole
discretion) as provided in the Loan Agreement, shall continue in effect until
August 31, 2005; (b) the Lender is under no duty to extend the period of the
Revolving Credit beyond August 31, 2005; (c) neither the Borrower nor the
Guarantor is relying upon or anticipating any such extension; and (d) if the
Lender chooses to extend the Revolving Credit pursuant to Section 2.03(d) of the
Loan Agreement, the Lender may require as a condition precedent to any
extension, such modification(s), or amendment(s) of any kind or nature
whatsoever, as the Lender determines in its sole discretion, to the Loan
Agreement and/or any other Borrower Documents, including, but not limited to,
the grant or increase of collateral security for the obligations of the
Guarantor under the Agreement. The Guarantor further acknowledges that upon any
extension of the period of the Revolving Credit, this Agreement
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shall remain in full force and effect and shall continue to apply to the
Revolving Credit Notes, as extended (and to any renewal or replacement note or
notes for one or more of the Revolving Credit Notes, or any replacement for all
or any of them), until that Revolving Credit Notes, as extended, renewed or
replaced, shall have been paid in full.
SECTION 11
Miscellaneous
-------------
11.01 This Agreement shall be binding upon the Guarantor and the
Guarantor's heirs, personal representatives, successors and assigns, and shall
inure to the benefit of, and be enforceable by, the Lender and the Lender's
successors, transferees and assigns, including each and every holder of any
indebtedness, obligation or liability of the Borrower constituting all or a
portion of the Guaranteed Obligations.
11.02 The Lender may enforce this Agreement with respect to one or more
breaches either separately or cumulatively.
11.03 This Agreement may not be modified or amended without the prior
written consent of the Lender, and any attempted modification or amendment
without such consent shall be void.
11.04 This Agreement shall in all respects be governed by, and construed
and enforced in accordance with, the laws (without regard to the conflicts of
laws rules) of the Commonwealth of Kentucky.
11.05 If any part, term or provision of this Agreement is unenforceable or
prohibited by any law applicable to this Agreement the rights and obligations of
the parties shall be construed and enforced with that part, term or provision
limited so as to make it enforceable to the greatest extent allowed by law, or
if it is totally unenforceable, as if this did not contain that particular part,
term or provision. A determination in one jurisdiction that any part, term or
provision of this Agreement is unenforceable or prohibited by law does not
affect the validity of such part, term or provision in any other jurisdiction.
11.06 The headings in this Agreement have been included for ease of
reference only, and shall not be considered in the construction or
interpretation of this Agreement.
11.07 This Agreement may be signed by each party hereto upon a separate
copy, and in such case one counterpart of this Agreement shall consist of enough
of such copies to reflect the signature of each party.
11.08 This Agreement may be executed by each party in multiple
counterparts, each of which shall be deemed an original. It shall not be
necessary in making proof of this Agreement or its terms to account for more
than one such counterpart.
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11.09 THE GUARANTOR CONSENTS TO ONE OR MORE ACTIONS BEING INSTITUTED AND
MAINTAINED IN THE JEFFERSON COUNTY, KENTUCKY, CIRCUIT COURT AND/OR THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY (AT THE LENDER'S
DISCRETION) TO ENFORCE THIS AGREEMENT AND/OR ONE OR MORE OF THE OTHER BORROWER
DOCUMENTS, AND WAIVES ANY OBJECTION TO ANY SUCH ACTION BASED UPON LACK OF
PERSONAL OR SUBJECT MATTER JURISDICTION OR IMPROPER VENUE. THE GUARANTOR AGREE
THAT ANY PROCESS OR OTHER LEGAL SUMMONS IN CONNECTION WITH ANY SUCH ACTION OR
PROCEEDING MAY BE SERVED BY MAILING A COPY THEREOF BY CERTIFIED MAIL, OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL, ADDRESSED TO THE BORROWER AS PROVIDED IN
SECTION 12.12 BELOW. THE BORROWER ALSO AGREES THAT IT SHALL NOT COMMENCE OR
MAINTAIN ANY ACTION IN ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL OTHER
THAN THE JEFFERSON COUNTY, KENTUCKY, CIRCUIT COURT OR THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF KENTUCKY WITH RESPECT TO THIS AGREEMENT, ANY
OTHER OF THE BORROWER DOCUMENTS, ANY OF THE TRANSACTIONS PROVIDED FOR OR
CONTEMPLATED IN ANY OF THE BORROWER DOCUMENTS, OR ANY CAUSE OF ACTION OR ALLEGED
CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH ANY DEBTOR AND CREDITOR
RELATIONSHIP BETWEEN OR AMONG THE GUARANTOR, THE BORROWER AND/OR THE LENDER THAT
MAY EXIST FROM TIME TO TIME.
11.10 In the event that any of the Guaranteed Obligations arise out of or
are evidenced by more than one obligation or liability of the Borrower to the
Lender, this Agreement may be enforced as to each separate liability or
obligation constituting one of the Guaranteed Obligations, either separately or
cumulatively.
11.11 The use of any gender in this Agreement shall be deemed to include
each other gender to the extent the context requires.
11.12 (a) Any requirement of the Uniform Commercial Code or other
applicable law of reasonable notice shall be met if such notice is given at
least ten (10) business days before the time of sale, disposition or other event
or thing giving rise to the requirement of notice.
(b) All notices or communications under this Agreement shall be in
writing and shall be (1) mailed by registered or certified mail, return receipt
requested, (2) hand delivered, or (3) delivered by overnight carrier, to the
parties at the addresses set forth below their names on the signature page(s) to
this Agreement, and any notice so addressed and mailed or delivered to and/or
deposited with such carrier, freight prepaid, shall be deemed to have been given
when so mailed if mailed; or delivered if hand-delivered; or delivered to such
overnight courier if delivered by overnight courier.
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(c)The parties hereto may at any time,and from time to time,change the
address(es) to which notice shall be mailed, transmitted or otherwise delivered
by written notice setting forth the changed address(es).
11.13 THE BORROWER AND EACH GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT, THE LOAN AGREEMENT, THE REVOLVING CREDIT NOTE, THE PLEDGE AGREEMENT
AND/OR ANY OTHER OF THE BORROWER DOCUMENTS. THIS WAIVER IS INTENDED TO APPLY TO
ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT THAT RELATE TO THE SUBJECT
MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
THE BORROWER AND GUARANTOR ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT FOR THE LENDER TO ENTER INTO A BUSINESS RELATIONSHIP, AND THAT THE
LENDER HAS ALREADY RELIED ON THIS WAIVER IN ITS DEALINGS WITH THE BORROWER AND
THE GUARANTOR. THE BORROWER AND GUARANTOR FURTHER WARRANTS AND REPRESENTS THAT
EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, THE LOAN AGREEMENT,
THE REVOLVING CREDIT NOTE, THE PLEDGE AGREEMENT AND/OR THE OTHER BORROWER
DOCUMENTS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO TRIAL BY THE COURT.
11.14 The Guarantor acknowledges that the Guarantor has received a copy of
the Loan Agreement and each of the other Borrower Documents, as fully executed
by the parties thereto. The Guarantor represent and warrants that the Guarantor
(a) HAS READ THE LOAN AGREEMENT AND THE OTHER BORROWER DOCUMENTS OR HAS CAUSED
SUCH DOCUMENTS TO BE EXAMINED BY THE GUARANTOR'S REPRESENTATIVES OR ADVISORS;
(b) is thoroughly familiar with the transactions contemplated in the Loan
Agreement and the other Borrower Documents; and (c), together with the
Guarantor's representatives or advisors, if any, has had the opportunity to ask
such questions to representatives of the Borrower and the Lender, respectively,
and receive answers thereto, concerning the terms and conditions of the
transactions contemplated in the Loan Agreement and the other Borrower Documents
as the Guarantor deem necessary in connection with the Guarantor's decision to
enter into this Agreement.
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IN WITNESS WHEREOF, the parties have executed this as of the date set out
on the preamble hereto, but actually on the date(s) set forth below.
GUARANTOR: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
XXXXX X. XXXXX
Date: August 15, 2000
------------------------------------------
Address:
00000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
BORROWER: ORIG, LLC
By /s/ X. X. Xxxxxxx
--------------------------------------------
X. X. XXXXXXX, MANAGER
Date: August 15, 2000
------------------------------------------
Address:
00000 Xxxx Xxxxxxx Xxxx #000
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
12
