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EXHIBIT 6.9
GUARANTY AGREEMENT
This GUARANTY AGREEMENT (the "Agreement") is dated as of
December 13, 2000, by and between HISPANIC EXPRESS, INC., a Delaware
corporation ("HEX") and BANNER CENTRAL FINANCE COMPANY, a Delaware corporation
("Banner"), with respect to the following facts:
WHEREAS, the parties hereto entered into that certain
Operating Agreement dated as of September 6, 2000 under which, among other
things, HEX agreed to assume all liabilities and responsibilities for the
Supplemental Executive Retirement Plan (the "Plan") of Central Financial
Acceptance Corporation.
WHEREAS, the parties hereto desire that Banner guarantee all
of HEX's liabilities and responsibilities under the SERP with sole and
exclusive respect to Xxxx X. Xxxxxx ("Cypres") so that Banner would pay all
benefits due under the SERP to Cypres if HEX is unable to do so.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and conditions herein contained, the parties agree as follows:
1. Guarantee. Banner hereby guarantees all liabilities and
responsibilities of HEX under the SERP with sole and exclusive respect to
Cypres, and shall pay all benefits due under the SERP to Cypres if HEX is
unable to do so.
2. Term and Termination. This Agreement and the obligations
of Banner hereunder shall survive indefinitely unless terminated by the mutual
agreement of the parties hereto.
3. Successors and Assigns; Third Parties. This Agreement
shall be binding upon and shall inure to the benefit of the parties and their
respective successors and permitted assigns. Neither party may assign this
agreement or any of its rights or obligations under it without the prior
written consent of the other party.
4. Notices. All notices, requests, demands and other
communications provided for by this Agreement shall be in writing (including
telecopier or similar writing) and shall be deemed to have been given at the
time when mailed in any general or branch office of the United States Postal
Service, enclosed in a registered or certified postpaid envelope, or sent by
Federal Express or other similar overnight courier service, addressed to the
appropriate party at 0000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Secretary, or to such changed address as such party may have fixed
by notice or, if given by telecopier, when such telecopy is transmitted and the
appropriate answer-back is received.
5. Governing Law. This Agreement shall be governed by the
laws of the State of California without giving effect to the principles of
conflicts of law.
6. Entire Agreement. This Agreement sets forth the entire
agreement among the parties with respect to its subject matter. This Agreement
may not be
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amended or otherwise modified except in writing duly executed by all of the
parties. No waiver of any provision or breach of this Agreement shall be
effective unless such waiver is in writing and signed by the party against
which enforcement of such waiver is sought. A waiver by any party of any breach
or violation of this Agreement shall not be deemed or construed as a waiver of
any subsequent breach or violation thereof.
7. Severability. Should any part, term or condition hereof be
declared illegal or unenforceable or in conflict with any other law, the
validity of the remaining portions or provisions of this Agreement shall not be
affected thereby, and the illegal or unenforceable portions of the Agreement
shall be and hereby are redrafted to conform with applicable law, while leaving
the remaining portions of this Agreement intact.
8. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
9. Headings. Section headings are for convenience only and do
not control or affect the meaning or interpretation of any terms or provisions
of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
HISPANIC EXPRESS, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx,
Chief Executive Officer, President and
Secretary
BANNER CENTRAL FINANCE COMPANY
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Chief Executive Officer,
Chief Financial Officer and Secretary
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