EXHIBIT 10b
THIRD AMENDMENT TO LOAN AGREEMENT
This Third Amendment to Loan Agreement ("Amendment") is dated March
______, 1998 and is effective as of March 8, 1998, by and between XXXXX-MIDLAND
CORPORATION, a Virginia corporation, XXXXX-MIDLAND CORPORATION, a Delaware
corporation, EASI-SET INDUSTRIES, INC., a Virginia corporation, XXXXX-CAROLINA
CORPORATION, a North Carolina Corporation, CONCRETE SAFETY SYSTEMS, INC., a
Virginia corporation, MIDLAND ADVERTISING AND DESIGN, INC., a Virginia
corporation (collectively, "Borrower"), and XXXXX BANK N.A., a national banking
association ("Lender").
R E C I T A L S
This Amendment is made with reference to the following facts:
A. Borrower is indebted to Lender in the original principal sum of Nine
Hundred Fifty Thousand and No/100 Dollars ($950,000.00) (the "Loan"), which
indebtedness is evidenced by that certain Promissory Note, dated July 22, 1996
executed by Borrower, as maker, to the order of Lender (together with any prior
amendments, a First Amendment dated August 15, 1997, a Second Amendment dated
December 30, 1997, and a Third Amendment of even date herewith, the "Promissory
Note")
B. Repayment of the Promissory Note is secured by that certain
Commercial Security Agreement, dated July 22, 1996, and an additional Commercial
Security Agreements dated December 30, 1997, (the "Security Agreements").
C. Advances of moneys under the Loan are governed by the terms and
conditions of that certain Loan Agreement, dated July 22, 1996, between Borrower
and Lender (together with any prior amendments, a First Amendment dated August
15, 1997, and a Second Amendment dated December 30, 1997 the "Agreement").
D. Borrower has requested that Lender extend the maturity date of the
Promissory Note until July 8, 1998, and Lender has so extended the maturity
date, upon and subject to the terms and conditions set forth in that certain
Third Amendment to Promissory Note of even date herewith.
E. Borrower and Lender desire to amend the Agreement as set forth
herein.
F. Terms defined in the Agreement and not otherwise defined herein
shall have the meanings set forth in the Agreement.
NOW, THEREFORE, in consideration of the foregoing, Borrower and Lender hereby
agree as follows:
1. As a condition precedent to the effectiveness of this Amendment and
the extension of the maturity date, Xxxxxx Xxxxx, as Guarantor, shall consent to
this Third Amendment to Loan Agreement and to the Third Amended Promissory Note.
2. Borrower affirms that the Security Agreements continue in force and
effect.
3. Borrower hereby agrees that Lender may, at its sole discretion,
require a collateral audit to be performed by a third party at the expense of
Borrower.
4. Borrower agrees to pay all costs and expenses of Lender incident to
the preparation hereof and the consummation of the transactions specified
herein, including without limitation, fees and expenses of Lender's in-house
legal counsel of $300.
5. Borrower hereby reaffirms the Agreement as amended hereby and agrees
that in all respects except as explicitly modified by the terms of this
Amendment that the Agreement shall remain in full force and effect.
6. In consideration of the Amendment contained herein, Borrower
represents, warrants and agrees that (i) there are no claims, defenses or
set-offs with respect to the Agreement, any Loan or any Note, or with respect to
the indebtedness evidenced or secured thereby or with respect to the collection
or enforcement of any of them or with respect to the collateral, (and to the
extent any claim, set-off or defense exists they are each hereby waived and
relinquished in their entirety), (ii) no Event of Default, as defined in the
Agreement, the Note or any other Loan Document, and no event which with the
lapse of time or the giving of notice or both would constitute such an Event of
Default, has occurred; (iii) Lender has made no representations or commitments,
oral or written, or undertaken any obligations other than as expressly set forth
in the Agreement, the Loan Documents and this Amendment, (iv) except as
otherwise previously disclosed in writing to the Lender, each of the
representations and warranties contained in the Agreement are true and correct
as of the date hereof and shall be deemed to be restated and remade as of the
date of this Amendment as if set out herein in their entirety; and (v) the
making, delivery and performance by the Borrower of this Amendment and all
instruments, documents and notes executed contemporaneously herewith, have been
duly authorized by all necessary corporate action, and constitute the valid and
binding obligations of the Borrower enforceable in accordance with their terms.
7. All capitalized terms not otherwise defined in this Amendment shall
have the meanings ascribed thereto in the Agreement. Each and every of the terms
and provisions of this Amendment shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors, personal
representatives and assigns.
BORROWER EXPRESSLY REPRESENTS AND WARRANTS TO LENDER THAT IT (A) HAS
READ EACH AND EVERY PROVISION OF THIS INSTRUMENT; (B) HAS BEEN GIVEN THE
OPPORTUNITY TO HAVE THIS INSTRUMENT REVIEWED BY COMPETENT LEGAL COUNSEL OF ITS
OWN CHOOSING; AND (C) UNDERSTANDS, AGREES TO AND ACCEPTS THE PROVISIONS HEREOF.
[CONTINUED ON NEXT PAGE]
IN WITNESS WHEREOF, this Amendment has been executed as of the day
first above written.
Attest: BORROWER:
XXXXX-MIDLAND CORPORATION (Virginia)
By: _______________________ By: ____________________________ (SEAL)
Name: ___________________________
Title: ___________________________
XXXXX-MIDLAND CORPORATION (Delaware)
By: _______________________ By: ____________________________ (SEAL)
Name: ___________________________
Title: ___________________________
EASI-SET INDUSTRIES, INC.
By: _______________________ By: ____________________________ (SEAL)
Name: ___________________________
Title: ___________________________
XXXXX-CAROLINA CORPORATION
By: _______________________ By: ____________________________ (SEAL)
Name: ___________________________
Title: ___________________________
CONCRETE SAFETY SYSTEMS
By: _______________________ By: ____________________________ (SEAL)
Name: ___________________________
Title: ___________________________
MIDLAND ADVERTISING & DESIGN, INC.
By: _______________________ By: ____________________________ (SEAL)
Name: ___________________________
Title: ___________________________
LENDER:
XXXXX BANK N.A.
By: _______________________ By: ____________________________ (SEAL)
Name: ___________________________
Title: ___________________________
THIRD AMENDMENT TO PROMISSORY NOTE
This Third Amendment To Promissory Note (this "Amendment") is dated
March ______, 1998 and is effective as of March 8, 1998, by and between
XXXXX-MIDLAND CORPORATION, a Virginia corporation, XXXXX-MIDLAND CORPORATION, a
Delaware corporation, EASI-SET INDUSTRIES, INC., a Virginia corporation,
XXXXX-CAROLINA CORPORATION, a North Carolina Corporation, CONCRETE SAFETY
SYSTEMS, INC., a Virginia corporation, MIDLAND ADVERTISING AND DESIGN, INC., a
Virginia corporation (collectively, "Borrower"), and XXXXX BANK N.A., a national
banking association ("Holder").
R E C I T A L S
This Amendment is made with reference to the following facts:
A. Borrower is indebted to Holder in the original principal sum of Nine
Hundred Fifty Thousand and No/100 Dollars ($950,000.00) (the "Loan"), which
indebtedness is evidenced by that certain Promissory Note, dated July 22, 1996
executed by Borrower, as maker, to the order of Holder (together with any prior
amendments, a First Amendment dated August 15, 1997, and a Second Amendment
dated December 30, 1997, the "Promissory Note")
B. Repayment of the Promissory Note is secured by that certain
Commercial Security Agreement, dated July 22, 1996 (together with any prior
amendments), and an additional Commercial Security Agreement dated December 30,
1997 (the "Security Agreement").
C. Advances of moneys under the Loan are governed by the terms and
conditions of that certain Loan Agreement, dated July 22, 1996, between Borrower
and Holder (together with any prior amendments, a First Amendment dated August
15, 1997, a Second Amendment dated December 30,. 1997, and a Third Amendment of
even date herewith, the "Loan Agreement").
D. Borrower has requested that Holder extend the maturity date of the
Promissory Note until July 8, 1998, and Holder is willing so to extend the
maturity date, upon and subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, Borrower and Holder
hereby agree as follows:
1. The Promissory Note is hereby amended to provide that the maturity
date thereof shall be July 8, 1998.
2. The Promissory Note is hereby further amended to provide that in
addition to the regular monthly payments of interest, Borrower shall pay monthly
principal payments, payable on the last business day of each month, commencing
April 30, 1998, in the amount of $2,000.00 per month. In addition, Borrower
hereby agrees to make a principal curtailment of $7,500.00 upon execution of
this Amendment.
3. An executed copy of this Third Amendment shall be affixed to the
Promissory Note.
4. All of the terms, covenants and conditions of the Promissory Note
shall continue in full force and effect as modified herein. This Amendment is
not intended to be, and shall not constitute, a substitution or novation of the
Promissory Note or of any of the instruments securing the repayment of the
Promissory Note.
5. Borrower hereby renews its covenant and agreement to pay the
indebtedness evidenced by the Promissory Note in accordance with the terms and
provisions thereof, as modified by this Amendment. Borrower further renews its
covenant and agreement to perform, comply with and be bound by each and every of
the other terms and provisions of the Promissory Note, as modified by this
Amendment, and each and every of the terms and provisions of the Security
Agreement. Borrower hereby reaffirms all of the representations and warranties
made to the Holder at the time the Loan was made and declares the same to be
true and correct as of such date and as of the date hereof.
6. Borrower represents, warrants and agrees that (i) there are no
claims, defenses or set-offs with respect to the Promissory Note, as amended by
the terms of this Amendment, or with respect to the Security Agreement, or with
respect to the indebtedness evidenced or secured thereby or with respect to the
collection or enforcement of any of the same (ii) no event of default has
occurred and is continuing under the Loan Documents, (iii) no claim, set-off or
defense exists for the benefit of Borrower against Holder in connection with the
Loan or under the Loan Documents (and to the extent any claim, set-off or
defense exists they are each hereby waived and relinquished in their entirety),
(iv) Holder has made no representations or commitments, oral or written, or
undertaken any obligations other than as expressly set forth in the Loan
Documents and this Amendment, and (v) each and every of the provisions of the
Promissory Note, as modified by the terms of this Amendment, and each and every
of the provisions of the Security Agreement and the other Loan Documents are,
and shall remain in full force and effect and lawful and binding obligations of
Borrower, duly authorized by all necessary corporate action, and enforceable in
accordance with their respective terms.
7. Each and every of the terms and provisions of this Amendment shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, successors, personal representatives and assigns. This
Amendment shall be governed by and construed in accordance with the laws of the
Commonwealth of Virginia, without reference to its conflict of laws principles.
As used herein, the singular shall include the plural and vice versa, and
masculine, feminine, and neuter pronouns shall be fully interchangeable, where
the context so requires.
BORROWER EXPRESSLY REPRESENTS AND WARRANTS TO HOLDER THAT IT (A) HAS
READ EACH AND EVERY PROVISION OF THIS INSTRUMENT; (B) HAS BEEN GIVEN THE
OPPORTUNITY TO HAVE THIS INSTRUMENT REVIEWED BY COMPETENT LEGAL COUNSEL OF ITS
OWN CHOOSING; AND (C) UNDERSTANDS, AGREES TO AND ACCEPTS THE PROVISIONS HEREOF.
This Amendment may be executed in multiple counterparts, no one of
which needs to be executed by all the parties hereto, which together shall
constitute a single instrument and, regardless of whether it is executed by all
parties, shall be binding upon all parties who have executed a counterpart.
[continued on next page]
IN WITNESS WHEREOF, this Amendment has been executed as of the
day first above written.
Attest: BORROWER:
XXXXX-MIDLAND CORPORATION (Virginia)
By: _______________________ By: ____________________________ (SEAL)
Name: ___________________________
Title: ___________________________
XXXXX-MIDLAND CORPORATION (Delaware)
By: _______________________ By: ____________________________ (SEAL)
Name: ___________________________
Title: ___________________________
EASI-SET INDUSTRIES, INC.
By: _______________________ By: ____________________________ (SEAL)
Name: ___________________________
Title: ___________________________
XXXXX-CAROLINA CORPORATION
By: _______________________ By: ____________________________ (SEAL)
Name: ___________________________
Title: ___________________________
CONCRETE SAFETY SYSTEMS
By: _______________________ By: ____________________________ (SEAL)
Name: ___________________________
Title: ___________________________
MIDLAND ADVERTISING & DESIGN, INC.
By: _______________________ By: ____________________________ (SEAL)
Name: ___________________________
Title: ___________________________
HOLDER:
XXXXX BANK N.A.
By: _______________________ By: ____________________________ (SEAL)
Name: ___________________________
Title: ___________________________
UNCONDITIONAL GUARANTY
This Unconditional Guaranty (this "Guaranty"), dated August 15, 1997
and effective as of July 8, 1997 is made by XXXXXX X. XXXXX (whether one or
more, the "Guarantor") to and for the benefit of XXXXX BANK N.A.
("Lender"), a national banking association.
R E C I T A L S
This Guaranty is made with reference to the following facts:
A. Borrower is indebted to Lender in the principal sum of Nine Hundred
Fifty Thousand and No/100 Dollars ($950,000.00) (the "Loan"), which indebtedness
is evidenced by that certain Promissory Note, dated July 22, 1996 executed by
Borrower, as maker, to the order of Lender (together with any prior amendments
and an amendment of even date herewith, the "Promissory Note")
B. Repayment of the Promissory Note is secured by that certain
Commercial Security Agreement, dated July 22, 1996 (together with any prior
amendments, the "Security Agreement").
C. Advances of moneys under the Loan are governed by the terms and
conditions of that certain Loan Agreement, dated July 22, 1996, between Borrower
and Lender (together with any prior amendments and an amendment of even date
herewith, the "Loan Agreement").
D. Borrower has requested that Lender extend the maturity date of the
Promissory Note until November 8, 1997, and Lender has so extended the maturity
date, upon and subject to the terms and conditions set forth in that certain
Amendment to Promissory Note and Amendment to Loan Agreement, each of even date
herewith.
E. Lender is unwilling to extend the maturity date of the Promissory
Note unless the Guarantor executes and delivers this Guaranty.
In order to induce Lender to extend and continue to extend credit, to
make and continue to make loans and advances and/or to forbear from exercising
any rights Lender may have to require repayment of or security for any such
loans and advances heretofore made by Lender, to XXXXX-MIDLAND CORPORATION, a
Virginia corporation, XXXXX-MIDLAND CORPORATION, a Delaware corporation,
EASI-SET INDUSTRIES, INC., a Virginia corporation, XXXXX-CAROLINA CORPORATION, a
North Carolina Corporation, CONCRETE SAFETY SYSTEMS, INC., a Virginia
corporation, and MIDLAND ADVERTISING AND DESIGN, INC., a Virginia corporation
(the "Borrower(s)"), the Guarantor:
(1) Guaranty of Payment. Unconditionally and absolutely guarantees the
punctual payment when due (whether at stated maturity, by acceleration of
maturity or otherwise) of all obligations of the Borrower(s) arising under the
Promissory Note, the Loan Agreement and the Security Agreement, and any other
documents and instruments executed by the Borrower(s) pursuant thereto, and all
renewals, extensions and modifications thereof, such obligations and the
interest thereon and all other sums payable with respect thereto being referred
to herein as the "Indebtedness" and all documents and instruments executed by
the Borrower(s) or any of them in connection therewith being referred to as the
"Loan Documents." This is a guaranty of payment and not of collection and shall
be binding upon the Guarantor irrespective of the genuineness, validity or
enforceability of any underlying obligations of the Borrower(s) or any of them
or the existence, validity, enforceability or perfection of any security
therefor, it being the intention of the Guarantor that this Guaranty be absolute
and unconditional in all events and not dischargeable or affected by any
circumstances which may constitute a legal or equitable discharge. This Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment of the Indebtedness or any part thereof is rescinded or must
otherwise be returned by Lender upon the insolvency, bankruptcy or
reorganization of any Borrower or Guarantor, or otherwise, all as though such
payment had not been made.
(2) Waivers by Guarantor. Waives diligence, presentment, protest,
notice of dishonor, demand for payment, extension of time of payment, notice of
acceptance of this Guaranty, non-payment at maturity and indulgences and notices
of every kind, and consent to any and all forbearances and extensions of the
time of payment of the Indebtedness, and to any and all changes in the terms,
agreements and conditions of the Indebtedness or any part thereof hereafter made
or granted, and to any and all substitutions and exchanges or releases of all or
any part of any collateral security given therefor and any and all releases of
any other party who is or may be liable upon any of the Indebtedness.
(3) No Subrogation. Agrees that no payment by any Guarantor pursuant to
any provision of this Guaranty or other satisfaction of Guarantor's obligations
under this Guaranty shall entitle Guarantor, by subrogation to the rights of
Lender, by right of contribution or indemnity or under any agreement or
otherwise, to any payment by the Borrower(s) or by any other party obligated to
Lender for payment of the Indebtedness or out of the assets of the Borrower(s)
or any such other party, except after payment in full of the Indebtedness.
(4) No Waiver By Lender; Remedies Cumulative. Agrees that no delay on
the part of Lender in the exercise of any rights hereunder or failure to
exercise the same shall operate as a waiver of such rights, and that no notice
to or demand on the maker of any promissory note shall be deemed to be a waiver
of the obligation of the Guarantor or of the right of Lender to take further
action without notice or demand as provided herein. Each right, power, and
remedy of Lender against Borrower(s) or Guarantor arising hereunder or pursuant
to any of the Loan Documents or by law shall be cumulative and concurrent. The
exercise of any right, power or remedy or the failure or forbearance in the
exercise thereof against Borrower(s) or Guarantor shall not preclude or require
the exercise of any other right, power or remedy.
(5) No Suit or Claim Required. Agrees that it shall not be necessary
for Lender, to enforce this contract of Guaranty, to first institute suit
against the Borrower(s) or any of them to recover the amount of the Indebtedness
or any part thereof. Lender shall not be obligated to file any claim relating to
the Indebtedness in the event that the Borrower(s) or any of them become subject
to a bankruptcy, reorganization or similar proceeding, and the failure of Lender
so to file shall not affect the Guarantor's obligations hereunder.
(6) Expenses and Attorneys' Fees. Agrees that the Guarantor will
reimburse Lender for all costs and expenses incurred by Lender (including
reasonable attorneys' fees) in enforcing any rights under this Guaranty,
collecting any of the Indebtedness or protecting or realizing on any collateral
therefor. Attorneys' fees shall include, in the case of a staff attorney
employed by Lender, the cost to Lender of the services of such attorney, on an
hourly basis, as determined by Lender.
(7) Representations of Guarantor. Represents and warrants and shall be
deemed to represent and warrant on each day that any of the Indebtedness is
outstanding that (a) all statements and information heretofore or hereafter
provided by the Guarantor in connection with this Guaranty or the Indebtedness
are and will be true and correct in all material respects and do not and will
not omit to state any material fact, (b) Guarantor, if a corporation, is duly
organized and validly existing as such under the laws of its jurisdiction of
incorporation or organization, (c) Guarantor has full power and authority to
execute, deliver and perform this Guaranty and this Guaranty constitutes the
legal, valid and binding obligation of Guarantor enforceable against Guarantor
in accordance with its terms, (d) except as otherwise disclosed to Lender in
writing, there is no suit, action, proceeding or investigation pending in which
an adverse decision could materially adversely affect the financial condition of
Guarantor, and (e) Guarantor has made its own credit analysis with respect to
the Borrower(s) and the Indebtedness and has not relied on Lender for any
information with respect thereto.
(8) Acceleration of Maturity. Agrees that upon (a) a breach by
Guarantor of any of its agreements, representations and warranties hereunder,
(b) a denial by Guarantor of its liability hereunder, (c) a failure by Guarantor
to pay or perform when due any other obligations of Guarantor to Lender, (d) the
death, declaration of legal incompetence, dissolution, termination of existence,
change of ownership or control, insolvency, business failure or appointment of a
receiver of any part of the property of, commencement of any bankruptcy or
insolvency proceeding by or against, assignment for the benefit of creditors by,
default under a material obligation by or issuance of an attachment, levy or
execution against the property of, Guarantor, or (e) occurrence of a change in
the operations, prospects, business or financial condition of Guarantor which
change, in the sole judgment of the Bank, is materially adverse, all of the
Indebtedness, regardless of its terms, shall be deemed for purposes of this
Guaranty to have become matured and the Guarantor, at the election of Lender,
shall promptly pay to Lender all of the Indebtedness.
(9) Subordination. Agrees (a) that all of the present and future
indebtedness of the Borrower(s) or any of them to the Guarantor shall be and
hereby is subordinated to, assigned and transferred to Lender and pledged and
made security for the payment of the Indebtedness, (b) that the Guarantor
contemporaneously herewith and from time to time hereafter shall on request
execute such further endorsement's, assignments or other proper transfers as
Lender may request further to evidence the assignment hereby agreed to and made,
and (c) that Guarantor hereby appoints Lender and each of its Vice Presidents
Guarantor's attorney to demand and enforce payment in any way of said
indebtedness, to prove all claims, receive all interest or dividends and take
all other action, either in the name of Lender or of Guarantor, with respect to
said indebtedness in any liquidation or any proceedings whatsoever affecting the
Borrower(s) or any of them or their respective properties under any bankruptcy
or other laws, now or hereafter in effect for the relief of debtors, and in
general to do any act or take any action in regard to said indebtedness which
Guarantor might otherwise do.
(10) Set Off. Agrees that, without limiting any other right of Lender,
whenever Lender has the right to declare any of the Indebtedness to be
immediately due and payable (whether or not it has so declared), Lender and any
branch or affiliate acting on its behalf is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final,
but excluding any third party funds held in escrow or in trust by Guarantor,
which funds have been identified to Lender as such escrow or trust funds) at any
time held and other indebtedness at any time owing by Lender or any branch or
affiliate of Lender acting on its behalf to or for the credit or the account of
Guarantor against any and all of the obligations of the Guarantor now or
hereafter existing under this Guaranty, irrespective of whether or not Lender
shall have made any demand under this Guaranty and although such obligations may
be unmatured. Lender agrees promptly to notify Guarantor after any such set-off
and application, provided, that, the failure to give such notice shall not
affect the validity of such set-off and application. Although Lender may in its
discretion take any act to confirm, indicate, or otherwise evidence a set-off,
such act shall not be deemed to be necessary for an effective set-off. The
rights of Lender under this paragraph are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which Lender
may have.
(11) Property in Possession of Lender. Agrees that Lender shall have a
lien on and a continuing security interest in all instruments, documents,
securities, cash, property and the proceeds of any of the foregoing, owned by
the Guarantor or in which the Guarantor has an interest, which now or hereafter
are at any time in possession or control of Lender or in transit by mail or
carrier to or from Lender or in the possession of any third party acting on
behalf of Lender, without regard to whether Lender received the same in pledge,
for safekeeping, as agent for collection or transmission or otherwise or whether
Lender had conditionally released the same, all of which shall at all times
constitute additional security for the Indebtedness and the obligations of the
Guarantor hereunder.
(12) Books and Records, etc. Agrees that the books and records of
Lender or any schedule, certificate or statement provided for in any agreement
between Lender and the Borrower(s) or any of them showing the amount owed by the
Borrower(s) or any of them to Lender from time to time or the rate of interest
on such amount shall be admissible in any action or proceeding against Guarantor
hereunder and shall be binding upon the Guarantor to the same extent as upon the
Borrower(s) or any of them pursuant to any of the Loan Documents.
(13) Financial Information. Agrees to provide Lender with such
financial statements and other information with respect to the financial
condition of Guarantor as Lender may from time to time request and notify Lender
promptly of any substantial change in such financial condition or the
commencement of any material litigation by or against Guarantor.
(14) Successors and Assigns. Agrees that this Guaranty shall inure to
the benefit of and may be enforced by Lender, its successors and assigns and any
assignee from Lender of the Indebtedness or any part thereof, and shall be
binding upon and enforceable upon the Guarantor and the successors, personal
representatives and assigns of the Guarantor including (a) any successor person,
association, partnership or corporation acquiring all or a substantial part of
the assets of Guarantor, (b) any successor partnership created by reason of the
admission of a new partner or the dissolution of an existing partnership by
reason of the death, resignation or other withdrawal of a partner, and (c) any
corporation into which Guarantor shall have been merged, consolidated,
reorganized or otherwise absorbed.
(15) Governing Law; Jurisdiction. Agrees that this Guaranty shall be
deemed to be a contract under the laws of the District of Columbia (except for
the conflict of law provisions thereof) and shall be governed by, and construed
in accordance with, the laws of such jurisdiction, except to the extent that the
rights and remedies of Lender with respect to collateral located in any other
jurisdiction are governed by the laws of such jurisdiction and except that in
any legal proceeding in any other jurisdiction, Lender shall be entitled to the
benefit of all legal remedies available under the laws of such jurisdiction.
Wherever possible each provision of this Guaranty shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Guaranty shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Guaranty. If any action arising out of this Guaranty is commenced by
Lender in any District of Columbia court, or Federal court located in the
District of Columbia, Guarantor hereby consents to the jurisdiction of any such
court in any such action and to the laying of venue in the District of Columbia.
Any process in any such action shall be duly served upon Guarantor if mailed by
registered mail, postage prepaid, to Guarantor at its last known residence or
business address as shown by the records of Lender or otherwise served in
accordance with law. The pleading of any statute of limitations and any right of
Guarantor to TRIAL BY JURY in any suit, action or proceeding in connection
herewith are hereby expressly WAIVED.
(16) Other Guarantors. Agrees that unless the context in which used
clearly indicates otherwise, "Guarantor" shall mean the guarantors hereunder or
any one of them, and the use of any gender shall be applicable to all genders.
The obligations of such guarantors hereunder, if there be more than one, are and
shall be joint and several. The obligations and liabilities of Guarantor
hereunder shall not be reduced or limited by reason of any similar or dissimilar
guaranty executed in favor of Lender by any other person or entity, and this
Guaranty shall be enforceable against Guarantor without regard to such other
guaranty or guaranties.
(17) Counterparts. Agrees that this Guaranty may be executed in
multiple counterparts, no one of which needs to be executed by all the
guarantors hereunder, which together shall constitute a single instrument and,
regardless of whether all guarantors have executed a counterpart hereof, shall
be binding on all guarantors who have executed a counterpart.
IN WITNESS WHEREOF, the Guarantor has executed this instrument the day
and year first above written.
Witness: GUARANTOR:
_____________________________ __________________________________(SEAL)
XXXXXX X. XXXXX
