GUARANTY AGREEMENT dated as of November 16, 1998 from A. Xxxx
Xxxxxxxxxx, of ________, MA (the "Guarantor") to Fleet National Bank (the
"Bank").
WITNESSETH:
WHEREAS, pursuant to a letter agreement of even date herewith (the
"Loan Agreement") between the Bank and Palomar Medical Technologies, Inc., a
Delaware corporation (the "Borrower"), the Bank is establishing a revolving
credit facility for the Borrower on the terms and conditions set forth therein;
and
WHEREAS, it is a condition precedent to the making of loans and the
issuance of letters of credit by the Bank pursuant to the Loan Agreement that
the Guarantor shall have executed and delivered this Agreement to the Bank; and
WHEREAS, the establishment of a revolving credit facility for, the
making of loans to, and the issuance of letters of credit for the account of,
the Borrower pursuant to the Loan Agreement are and will be beneficial to the
Guarantor inasmuch as the Guarantor is an investor in the Borrower and has
received and expects to receive certain fees from the Borrower and, therefore,
has a direct ownership and economic interest in the Borrower;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as
follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings set out respectively after each:
"Agreement" - This Guaranty Agreement, as same may be from time to time
amended.
"Event of Default" - As defined in Section 5.01 below.
"Guaranteed Obligations" - Any and all indebtedness, liabilities or
obligations of the Borrower, whether joint or several, direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising,
to or for the benefit of the Bank, including, without limitation, those now or
hereafter arising under any Loan Document.
"Guaranty" - The guaranty of the Guarantor set forth in Article II.
"Loan Documents" - The Loan Agreement, the Revolving Note and any other
instrument, document or other agreement relating to extension of financial
accommodations or other banking services between the Borrower and the Bank or
made by the Borrower in favor of the Bank, all whether now existing or hereafter
entered into or delivered.
"Person" - As defined in the Loan Agreement.
"Prime Rate" - As defined in the Loan Agreement.
"Revolving Loans" - As defined in the Loan Agreement.
"Revolving Note" - As defined in the Loan Agreement.
Section 1.02. Use of Defined Terms. Any defined term used in the plural
preceded by the definite article shall be taken to encompass all members of the
relevant class. Any defined term used in the singular preceded by "any" shall be
taken to indicate any number of the members of the relevant class.
ARTICLE II
GUARANTY
Section 2.01. Guaranty. In consideration of the Bank making loans to
the Borrower pursuant to the Loan Agreement, the Guarantor hereby guaranties to
the Bank the due and punctual payment and performance of all of the Guaranteed
Obligations, as and when the same shall become due and payable, whether on
demand or at maturity, by declaration or otherwise, according to the terms
thereof, and all losses, costs, expenses and reasonable attorneys' fees and
disbursements incurred by reason of a default under any of said Guaranteed
Obligations. In case of failure by the Borrower punctually to pay any of the
Guaranteed Obligations, the Guarantor unconditionally agrees to cause such
payment to be made punctually as and when the same shall become due and payable,
whether at maturity or by declaration or otherwise, and as if such payment were
made by the Borrower. This Guaranty is an absolute, unconditional, unlimited and
continuing guaranty of the full and punctual payment and performance by the
Borrower of the Guaranteed Obligations and not merely of their collectibility
and is in no way conditioned upon any requirement that the Bank first collect or
attempt to collect the Guaranteed Obligations or any portion thereof from the
Borrower or from any other guarantor of any of same or resort to any security or
other means of obtaining payment of any of the Guaranteed Obligations which the
Bank now has or may acquire after the date hereof, or upon any other contingency
whatsoever. Upon and during th continuance of any Event of Default (as defined
herein), all liabilities and obligations of the Guarantor to the Bank, hereunder
or otherwise, shall, at the option of the Bank, become forthwith due and payable
to the Bank without further demand or notice of any nature, all of which are
expressly waived by the Guarantor. Payments by the Guarantor hereunder may be
required by the Bank on any number of occasions.
Section 2.02. Guarantor's Further Agreements to Pay. The Guarantor
further agrees, as principal obligor and not as guarantor, to pay to the Bank
forthwith upon demand, in lawful currency of the United States in funds
immediately available to the Bank, all costs and expenses (including court costs
and reasonable attorneys' fees and disbursements) incurred or expended by
the Bank in connection with this Guaranty and the enforcement hereof, together
with interest on any sum now or hereafter payable by the Guarantor under this
Agreement, such interest to accrue from the date of any demand for payment of
such sum to the date of payment. Such interest will be payable at the rate set
forth in Section 6.04 below.
Section 2.03. Bank's Freedom to Deal with Borrower and Other Parties.
The Bank shall be at liberty, without giving notice to or obtaining the assent
of the Guarantor and without relieving the Guarantor of any liability hereunder,
to deal with the Borrower and with each other party who now is or after the date
hereof becomes liable in any manner for any of the Guaranteed Obligations in
such manner as the Bank in its sole discretion deems fit. The Bank has full
authority in its sole discretio to do any or all of the following things, none
of which shall discharge or affect the Guarantor's liability hereunder: (i)
extend credit, make loans and afford other financial accommodations to the
Borrower at such times, in such amounts and on such terms as the Bank may
approve; (ii) modify, amend, vary the terms and grant extensions or renewals of
any present or future indebtedness or of all or any of the Guaranteed
Obligations or any instrument relating to or securing same, and, without
limitation, this Guaranty shall survive payment of the Revolving Note; (iii)
grant time, waivers and other indulgences in respect thereto; (iv) vary,
exchange, release or discharge, wholly or partially, or delay or abstain from
perfecting and enforcing any security or guaranty or other means of obtaining
payment of any of the Guaranteed Obligations which the Bank now has or acquires
after the date hereof; (v) take or omit to take any of the actions referred to
in any Loan Document or other instrument evidencing, securing or relating to any
of the Guaranteed Obligations or any actions under this Guaranty; (vi) fail,
omit or delay to enforce, assert or exercise any right, power or remedy
conferred on the Bank in this Guaranty or in any other Loan Document or other
instrument evidencing, securing or relating to any of the Guaranteed Obligations
or take or refrain from taking any other action; (vii) accept partial payments
from the Borrower or any other party; (viii) release or discharge, wholly or
partially, the Borrower, any endorser or any guarantor, or accept additional
collateral for the payment of any Guaranteed Obligations; (ix) compromise or
make any settlement or other arrangement with the Borrower or any such other
party; and (x) consent to and participate in the proceeds of any assignment,
trust or mortgage for the benefit of creditors.
Section 2.04. Unenforceability of Guaranteed Obligations; Invalidity of
Security or Other Guaranties. If for any reason now or hereafter the Borrower
has no legal existence or is under no legal obligation to discharge any of the
Guaranteed Obligations undertaken or purported to be undertaken by it or on its
behalf, or if any of the moneys included in the Guaranteed Obligations have
become irrecoverable from the Borrower by operation of law or for any other
reason, this Guaranty shall nevertheless be binding on the Guarantor to the same
extent as if the Guarantor at all times had been the principal debtor on all
such Guaranteed Obligations. This Guaranty shall be in addition to any other
guaranty or other security for the Guaranteed Obligations, and it shall not be
prejudiced or rendered unenforceable by the invalidity of any such other
guaranty or security. The liability of the Guarantor under this Guaranty shall
remain in full force and effect until payment and performance in full of all of
the Guaranteed Obligations. This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be
restored or returned by the Bank, upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as though such payment had not
been made.
Section 2.05. Waivers by Guarantor. The Guarantor waives: notice of
acceptance hereof and reliance hereon, notice of any action taken or omitted by
the Bank in reliance hereon, any requirement that the Bank be diligent or prompt
in making demands hereunder, any requirement as to any presentment, demand,
protest, giving notice of any default by the Borrower or asserting any other
right of the Bank hereunder and all demands, notices (other than any demands and
notices which are specifically provided for in the Loan Agreement) and all
suretyship defenses generally. The Guarantor also irrevocably waives, to the
fullest extent permitted by law, all defenses which at any time may be available
in respect of the Guarantor's obligations hereunder by virtue of any statute of
limitations, valuation, stay, homestead or moratorium law or other similar law
now or hereafter in effect.
Without limiting the generality of the foregoing provisions of this
Guaranty, the liability of the Guarantor shall not be released, discharged or
otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower or any
other guarantor of any of the Guaranteed Obligations;
(ii) any change in the time, manner, amount or place of payment of
any Guaranteed Obligation or any modification or amendment of
or supplement to any Loan Document or this Agreement;
(iii) any release, non-perfection or invalidity of any direct or
indirect security for any obligation of the Borrower, the
Guarantor or any other guarantor of any of the Guaranteed
Obligations;
(iv) any change in the legal existence, structure, record or
beneficial ownership or control of the Borrower or any other
guarantor of any of the Guaranteed Obligations, or any
insolvency, bankruptcy, reorganization or other similar
proceeding affecting any such Person or its assets;
(v) the existence of any claim, set-off or other rights which the
Guarantor may have at any time against the Borrower, the Bank
or any other guarantor of any of the Guaranteed Obligations or
any other Person, whether or not arising in connection with
this Agreement;
(vi) any invalidity or unenforceability relating to or against the
Borrower or the Guarantor for any reason under any Loan
Document or under this Agreement; or any provision of
applicable law or regulation purporting to prohibit the
payment by any Person of the principal of or interest on the
Revolving Note or any other amount payable under any Loan
Document or this Agreement; or
(vii) any other act or omission to act or delay of any kind by the
Borrower, the Bank or any other Person or any other
circumstances whatsoever which might, but for the provisions
of this paragraph, constitute a legal or equitable discharge
of the Guarantor's obligations hereunder.
Section 2.06. Subrogation. Unless and until all of the Guaranteed
Obligations shall have been indefeasibly paid in full and all commitments for
further extensions of credit to the Borrower by the Bank shall have been
terminated, the Guarantor hereby irrevocably and unconditionally waives
enforcement of any and all rights of subrogation, contribution or similar rights
which, but for this Section 2.06, he might otherwise have in relation to the
Borrower or any other guarantor as a result of this Agreement. No right of
subrogation, contribution or any similar right will in any event be deemed to
give the Guarantor any claim against the Bank on account of the Bank's release,
failure to perfect or other dealing or failing to deal with any collateral or
with any Person, even if the value of such subrogation, contribution or similar
rights is thereby diminished or jeopardized.
Section 2.07. No Contest with Bank. No set-off, counterclaim, reduction
or diminution of any obligation, or any claim or defense of any kind or nature
which the Guarantor has or may have against the Borrower, any other guarantor or
the Bank shall be available hereunder to the Guarantor. The Guarantor will not,
in any proceedings under the Bankruptcy Code or insolvency proceedings of any
nature, prove in competition with the Bank in respect of any payment hereunder
or be entitled to have the benefit of any counterclaim or proof of claim or
dividend or payment by or on behalf of the Borrower or the benefit of any other
security for any Guaranteed Obligation which, now or hereafter, the Guarantor
may hold in competition with the Bank.
Section 2.08. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Borrower under any Loan Document is stayed
upon the insolvency, bankruptcy or reorganization of the Borrower, all such
amounts otherwise subject to acceleration under the terms of this Guaranty shall
nonetheless be payable by the Guarantor hereunder forthwith on demand by the
Bank.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. General Representations and Warranties. The Guarantor
hereby represents and warrants that:
(a) The execution, delivery and performance by the Guarantor
of this Agreement do not and will not:
(i) violate any provision of, or require any filing,
registration, consent or approval under, any law,
rule, regulation (including, without limitation,
Regulation U), order, writ, judgment, injunction,
decree, determination or award presently in effect
having applicability to the Guarantor;
(ii) result in a breach of or constitute a default or
require any consent under any indenture or loan or
credit agreement or any other agreement, lease or
instrument to which the Guarantor is a party or by
which the Guarantor or any of his properties may be
bound or affected; or
(iii) result in, or require, the creation or imposition of
any lien, security interest or other encumbrance upon
or with respect to any of the properties now owned or
hereafter acquired by the Guarantor.
(b) This Agreement has been duly executed and delivered on
behalf of the Guarantor and is a legal, valid and binding obligation of
the Guarantor, enforceable against the Guarantor in accordance with its
terms.
(c) The Guarantor is an investor in the Borrower and has
received and expects to receive certain fees from the Borrower.
(d) After giving effect to this Agreement and the transactions
contemplated hereby, the Guarantor (A) is and will be able to pay his
debts as they become due, (B) has and will have funds and capital
sufficient to carry on his business as now conducted or as contemplated
to be conducted, (C) owns property having a value both at fair
valuation and at present fair saleable value greater than the amount
required to pay his debts as they become due, and (D) is not insolvent
and will not be rendered insolvent as determined by applicable law,
after taking into account the reasonable likelihood of payments being
required hereunder.
ARTICLE IV
COVENANTS
Section 4.01. Covenants. So long as any of the Guaranteed Obligations
remain outstanding, the Guarantor will provide to the Bank, promptly upon
request, such financial and other information as the Bank may from time to time
reasonably request.
ARTICLE V
DEFAULT AND REMEDIES
Section 5.01. Events of Default. An Event of Default will be deemed to
have occurred under this Agreement upon the occurrence of any one or more of the
following:
(i) The Guarantor shall fail to make any monetary payment
hereunder when due; or
(ii) Any representation or warranty of the Guarantor
contained herein shall at any time prove to have been
incorrect in any material respect when made; or
(iii) The Guarantor shall fail to perform or observe any
other obligation or agreement contained herein and
such failure shall continue uncured for thirty (30)
days after written notice of such failure is given by
the Bank to the Guarantor; or
(iv) Any default on the part of the Guarantor or any
Person controlled by the Guarantor shall exist, and
shall remain unwaived or uncured beyond the
expiration of any applicable notice and/or grace
period, under any other contract, agreement or
undertaking now existing or hereafter entered into
with or for the benefit of the Bank (or any affiliate
of the Bank); or
(v) Any "Event of Default" (as defined in the Loan
Agreement) shall occur and shall continue uncured
beyond the expiration of any applicable notice and/or
grace period.
Section 5.02. Rights and Remedies Upon Default. Upon the occurrence of
any Event of Default and at any time thereafter during the continuance thereof,
in addition to any other rights and remedies available to the Bank hereunder or
otherwise, the Bank may exercise any one or more of the following rights and
remedies (all of which shall be cumulative):
(a) Enforce the provisions of this Agreement by legal
proceedings for the specific performance of any covenant or agreement
contained herein or for the enforcement of any other appropriate legal
or equitable remedy, and the Bank may recover damages caused by any
breach by the Guarantor of the provisions of this Agreement, including
court costs, reasonable attorneys' fees and other costs and expenses
incurred in the enforcement of the obligations of the Guarantor
hereunder.
(b) Exercise all rights and remedies hereunder, under the Loan
Documents, and under any other agreement with the Bank, and exercise
all other rights and remedies which the Bank may have under applicable
law.
Section 5.03. Set-off. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of any Event of Default and during the continuance thereof,
the Bank is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the Guarantor or to
any other Person, all of which are hereby expressly waived, to set off and to
appropriate and apply any and all deposits and any other Indebtedness at any
time held or owing by the Bank or any affiliate of the Bank to or for the credit
or the account of the Guarantor against and on account of the obligations and
liabilities of the Guarantor to the Bank, under this Agreement or otherwise,
irrespective of whether or not the Bank shall have made any demand for payment
and although said obligations, liabilities or claims, or any of them, may then
be contingent or unmatured and without regard for the availability or adequacy
of other collateral. The Guarantor also grants to the Bank a security interest
with respect to all his deposits and all securities or
other property in the possession of the Bank or any affiliate of the Bank from
time to time, and, upon the occurrence of any Event of Default, the Bank may
exercise all rights and remedies of a secured party under the Uniform Commercial
Code. ANY AND ALL RIGHTS TO REQUIRE THE BANK TO EXERCISE ITS RIGHTS OR REMEDIES
WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES ANY OF TH GUARANTEED
OBLIGATIONS PRIOR TO THE EXERCISE BY THE BANK OF ITS RIGHT OF SET-OFF UNDER THIS
SECTION ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
ARTICLE VI
MISCELLANEOUS
Section 6.01. No Waiver; Cumulative Remedies. No failure or delay on
the part of any party in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law or
otherwise available to the Bank. Such remedies may be exercised without resort
or regard to the other source of satisfaction of any liabilities of the
Guarantor to the Bank. The provisions of this Agreement are not limited by nor
in the limitation of any additional or inconsistent provisions contained in the
Loan Agreement or elsewhere.
Section 6.02. Amendments, Waivers and Consents. Neither this Agreement
nor any provision hereof may be amended, waived discharged or terminated orally.
Any such amendment, waiver, discharge or termination must be in writing signed
by the party against whom enforcement of the amendment, waiver, discharge or
termination is sought. Any waiver or consent may be given subject to
satisfaction of conditions stated therein and any waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
Section 6.03. Addresses for Notices, etc. Except as otherwise expressly
provided in this Agreement, all notices, requests, demands and other
communications provided for hereunder shall be in writing and shall be mailed or
delivered to the applicable party at the address indicated below:
If to the Guarantor
Mr. A. Xxxx Xxxxxxxxxx
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
If to the Bank:
Fleet National Bank
High Technology Division
One Federal Street
Mail Stop: MA XX XX0X
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx, Vice President
or, as to each of the foregoing, at such other address as shall be designated by
such Person in a written notice to the other party complying as to delivery with
the terms of this Section. Except as otherwise provided herein, all such
notices, requests, demands and other communications shall be deemed delivered on
the earlier of (i) the date received or (ii) the date of delivery, refusal or
non-delivery indicated on the return receipt if deposited in the United States
mails, sent postage prepaid, registered or certified mail, return receipt
requested, postage and registration or certification charges prepaid, addressed
as aforesaid.
Section 6.04. Costs, Expenses and Taxes. The Guarantor agrees to pay on
demand all costs and expenses (including, without limitation, reasonable legal
fees) of the Bank in connection with the preparation, execution and delivery of
this Agreement and all other instruments and documents to be delivered hereunder
and any amendments or modifications of any of the foregoing, or in connection
with the examination, review or administration of any of the foregoing, as well
as the costs and expenses (including, without limitation the reasonable fees and
out-of-pocket expenses of legal counsel) incurred by the Bank in connection with
preserving, enforcing or exercising any rights or remedies under this Agreement
and all other instruments and documents to be delivered hereunder, all whether
or not legal action is instituted. In addition, the Guarantor shall be obligated
to pay any and all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of this Agreement and all other
instruments and documents to be delivered hereunder, and the Guarantor agrees to
save the Bank harmless from and against any and all liabilities with respect to
or resulting from any delay in paying or omission to pay such taxes. Any fees,
expenses or other charges which the Bank is entitled to receive from the
Guarantor hereunder shall bear interest from the date of demand for payment
until paid at the lesser of (i) a fluctuating rate per annum which shall at all
times be equal t the sum of four (4%) percent per annum plus the Prime Rate as
in effect from time to time or (ii) the maximum rate permitted by then
applicable law.
Section 6.05. Representations and Warranties. All covenants,
agreements, representations and warranties made herein or in any other document
delivered by or on behalf of the Guarantor pursuant to or in connection with
this Agreement are material and shall be deemed to have been relied upon by the
Bank, notwithstanding any investigation heretofore or hereafter made by the Bank
and shall survive the making of the Revolving Loans as contemplated in the Loan
Agreement, and shall continue in full force and effect so long as any of the
Guaranteed Obligations remain outstanding and unpaid or any facility for the
making of loans to the Borrower remains in effect. All statements contained in
any certificate or other paper delivered
to the Bank at any time by or on behalf of the Guarantor pursuant hereto shall
constitute representations and warranties by the Guarantor hereunder.
Section 6.06. Binding Effect; Assignment. This Agreement shall be
binding upon the Guarantor and his heirs, executors, administrators, successors
and assigns and shall inure to the benefit of the Bank and its successors and
assigns. The Guarantor may not assign this Agreement or any rights hereunder
without the express written consent of the Bank.
Section 6.07. Reproduction of Agreement. This Agreement and all other
instruments, documents and papers which relate thereto which have been or may be
hereafter furnished to the Bank may be reproduced by the Bank by any
photographic, photostatic, micro-card, miniature photographic, xerographic or
similar process, and the Bank may destroy the original from which any document
was so reproduced. Any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made in the
regular course of business).
Section 6.08. Consent to Jurisdiction. The Guarantor irrevocably
submits to the non-exclusive jurisdiction of any Massachusetts court or any
federal court sitting within The Commonwealth of Massachusetts over any suit,
action or proceeding arising out of or relating to this Agreement. The Guarantor
irrevocably waives, to the fullest extent permitted by law, any objection which
he may now or hereafter have to the laying of venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding has been brought in an inconvenient forum. The Guarantor agrees that
final judgment in any such suit, action or proceeding brought in such a court
shall be enforced in any court of proper jurisdiction by a suit upon such
judgment, provided that service of process in such action, suit or proceeding
shall have been effected upon the Guarantor in one of the manners specified in
the following paragraph of this Section 6.08 or as otherwise permitted by law.
The Guarantor hereby consents to process being served in any suit,
action or proceeding of the nature referred to in the preceding paragraph of
this Section 6.08 either (i) by mailing a copy thereof by registered or
certified mail, postage prepaid, return receipt requested, to him at his address
set forth in Section 6.03 or (ii) by serving a copy thereof upon him at his
address set forth in Section 6.03. The Guarantor irrevocably waives, to the
fullest extent permitted by law, all claims of erro by reason of any service as
contemplated herein and agrees that such service shall (x) be deemed in every
respect effective service upon such Guarantor in any such suit, action or
proceeding and (y) to the fullest extent permitted by law, be taken and held to
be valid personal service upon and personal delivery to the Guarantor.
Section 6.09. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of The Commonwealth of Massachusetts.
Section 6.10. Severability. In the event that any provision of this
Agreement or the application thereof to any Person, property or circumstances
shall be held to any extent to be invalid or unenforceable, the remainder of
this Agreement and the application of such provision
to Persons, properties or circumstances other than those as to which it has been
held invalid or unenforceable shall not be affected thereby, and each provision
of this Agreement shall be valid and enforceable to the fullest extent permitted
by law.
Section 6.11. Headings. Article and Section headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
Section 6.12. WAIVER OF JURY TRIAL. THE GUARANTOR AND THE BANK HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY MUTUALLY WAIVE THE RIGHT TO A TRIAL BY
JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT, THE LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENTS
OR OUT OF ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT
FOR THE BANK TO ENTER INTO THE LOAN AGREEMENT AND TO MAKE LOANS AS CONTEMPLATED
THEREIN.
IN WITNESS WHEREOF, the Guarantor has executed this Agreement, as an
instrument under seal, as of the day and year first above written.
BY HIS SIGNATURE, THE BORROWER ACKNOWLEDGES: (A) THAT HE HAS RECEIVED A
COPY OF THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS AND HAS HAD AN
OPPORTUNITY TO REVIEW SAME, (B) THAT HE HAS HAD AN OPPORTUNITY TO REQUEST
FINANCIAL INFORMATION FROM THE BORROWER AND HAS RECEIVED ALL INFORMATION
REQUESTED, AND (C) THAT HE HAS HAD AN OPPORTUNITY TO CONSULT WITH HIS COUNSEL
AND FINANCIAL ADVISORS WITH RESPECT TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND HAS SO CONSULTED TO THE EXTENT HE HAS DEEMED APPROPRIATE.
WITNESS: ____________________________
A. Xxxx Xxxxxxxxxx
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