GUARANTY AGREEMENT
FOR VALUE RECEIVED, and intending to be legally bound,
each of XXXXXXXXX & XXXXX GROUP, a California corporation
("H&Q"), XXXXXXX X. XXXXXX, an individual ("Xxxxxx"), XXXXXX X.
XXXXXX, an individual ("Xxxxxx"), and STARWOOD INVESTMENTS, L.P.,
a Kansas limited partnership ("Starwood")(each, a "Guarantor" and
collectively, the "Guarantors"), do hereby absolutely, uncondi-
tionally, and irrevocably guarantee to BANK IV, N.A., a national
banking association, and its successors and assigns ("Lender"),
the due and punctual payment and performance of the Obligations
(as hereinafter defined), as and when such payment or performance
shall respectively become due, payable and/or performable in
accordance with the terms of the Obligations, whether at maturity
or by declaration, acceleration, or otherwise.
As used herein, the following terms shall have the
indicated meanings:
"Borrower" shall mean VANGUARD AIRLINES, INC., a
Delaware corporation.
"Borrower Collection Costs" shall mean all costs, fees
and expenses incurred by or on behalf of Lender to enforce any of
Lender's rights or remedies against Borrower or any of its
properties arising out of or relating in any respect to the Loan
Documents or to otherwise collect any Obligations of Borrower,
including, without limitation, reasonable attorneys' fees and
expenses, irrespective of whether litigation is commenced in
pursuance of any of the foregoing, and all costs, fees and
expenses incurred by or on behalf of Lender in respect of any
bankruptcy or other insolvency proceeding relating to Borrower or
any of its properties.
"Guaranty Amount" shall mean:
(i) with respect to H&Q, the sum of (a) H&Q's
Principal Amount, (b) accrued but unpaid interest under the
Note in respect of H&Q's Principal Amount, (c) H&Q's Pro
Rata Share of Borrower Collection Costs incurred by or on
behalf of Lender (excluding, however, any Borrower
Collection Costs arising after the date H&Q has satisfied
its then-existing obligations under this Guaranty
Agreement), and (d) Guarantor Collection Costs incurred by
or on behalf of Lender in respect of H&Q;
(ii) with respect to Xxxxxx, the sum of (a) Xxxxxx'x
Principal Amount, (b) accrued but unpaid interest under the
Note in respect of Xxxxxx'x Principal Amount, (c) Xxxxxx'x
Pro Rata Share of Borrower Collection Costs incurred by or
on behalf of Lender (excluding, however, any Borrower
Collection Costs arising after the date Xxxxxx has satisfied
his then-existing obligations under this Guaranty
Agreement), and (d) Guarantor Collection Costs incurred by
or on behalf of Lender in respect of Xxxxxx;
(iii) with respect to Xxxxxx, the sum of (a)
Xxxxxx'x Principal Amount, (b) accrued but unpaid interest
under the Note in respect of Xxxxxx'x Principal Amount, (c)
Xxxxxx'x Pro Rata Share of Borrower Collection Costs
incurred by or on behalf of Lender (excluding, however, any
Borrower Collection Costs arising after the date Xxxxxx has
satisfied his then-existing obligations under this Guaranty
Agreement), and (d) Guarantor Collection Costs incurred by
or on behalf of Lender in respect of Xxxxxx;
(iv) with respect to Starwood, the sum of (a)
Starwood's Principal Amount, (b) accrued but unpaid interest
under the Note in respect of Starwood's Principal Amount,
(c) Starwood's Pro Rata Share of Borrower Collection Costs
incurred by or on behalf of Lender (excluding, however, any
Borrower Collection Costs arising after the date Starwood
has satisfied its then-existing obligations under this
Guaranty Agreement), and (d) Guarantor Collection Costs
incurred by or on behalf of Lender in respect of Starwood;
"Guarantor Collection Costs" shall mean all costs, fees
and expenses incurred by or on behalf of Lender to enforce any of
Lender's rights or remedies against any Guarantor or any of its
properties arising out of or relating in any respect to this
Guaranty Agreement or to otherwise collect any amounts due to
Lender from any Guarantor arising out of this Guaranty Agreement,
including, without limitation, reasonable attorneys' fees and
expenses, irrespective of whether litigation is commenced in
pursuance of any of the foregoing, and all costs, fees and
expenses incurred by or on behalf of Lender in respect of any
bankruptcy or other insolvency proceeding relating to any
Guarantor or any of its properties.
"Loan Amount" shall mean $4,000,000.00.
"Loan Document" or "Loan Documents" shall mean any or
all, respectively, of the Note and all other documents executed
in connection with or evidencing or securing the indebtedness
evidenced by the Note, as any of the same may be amended,
modified, supplemented or replaced from time to time.
"Note" shall mean that certain Revolving Promissory
Note in the original principal amount of $4,000,000.00, dated on
or about the date hereof, made by Borrower and payable to the
order of Lender, as the same may be amended, modified,
supplemented, replaced, rearranged, renewed or extended from time
to time.
"Obligations" shall mean and include (i) all
indebtedness of Borrower to Lender heretofore or hereafter
created under the Note and the Loan Documents, together with any
and all indebtedness created or incurred under any extension,
renewal, refinancing, or refunding of such indebtedness in whole
or in part, whether on account of principal, interest, or
otherwise, (ii) payment, performance, and discharge of all
obligations, covenants, agreements, terms, and conditions of
Borrower under the Loan Documents, (iii) all taxes incurred by
Lender in connection with the Loan Documents and/or Borrower,
including, specifically but not by way of limitation, any
federal, state or local payroll taxes in respect of Borrower
incurred by Lender, but excluding in any event any taxes based
upon the income or revenues of Lender, (iv) all Borrower
Collection Costs, (v) all future advances made by Lender for the
maintenance, preservation, protection, or enforcement of, or
realization upon, the property, or any portion thereof, subjected
and intended to be subjected to the lien and security interest
created by any of the Loan Documents, including, without
limitation, advances for storage, transportation charges, taxes,
insurance, repairs, and the like, and (vi) any extensions,
modifications, or renewals of (i) through (v) above.
NOTWITHSTANDING THE FOREGOING, THE LIABILITY OF EACH GUARANTOR
UNDER THIS GUARANTY AGREEMENT SHALL NOT EXTEND TO RENEWALS OR
EXTENSIONS OF THE NOTE BEYOND THE ORIGINAL MATURITY DATE OF THE
NOTE UNLESS CONSENTED TO IN WRITING BY SUCH GUARANTOR. FURTHER,
NOTWITHSTANDING THE FOREGOING, THE LIABILITY OF EACH GUARANTOR AT
ANY TIME AND FROM TIME TO TIME UNDER THIS GUARANTY AGREEMENT
SHALL BE LIMITED TO SUCH GUARANTOR'S PRO RATA SHARE OF THE
OBLIGATIONS PLUS ANY GUARANTOR COLLECTION COSTS INCURRED BY
LENDER IN RESPECT OF SUCH GUARANTOR (BUT IN NO EVENT SHALL EXCEED
SUCH GUARANTOR'S GUARANTY AMOUNT). EXCEPT AS EXPRESSLY PROVIDED
ABOVE, THE LIABILITY OF THE GUARANTORS SHALL NOT BE DISCHARGED,
REDUCED OR OTHERWISE IMPAIRED BY (A) ANY REDUCTION OF THE
PRINCIPAL BALANCES OF THE NOTE, WHETHER BY REGULARLY SCHEDULED
PAYMENTS OR OTHERWISE, (B) ANY APPLICATION OF ANY SECURITY HELD
BY LENDER TO THE PRINCIPAL BALANCES OF THE NOTE, (C) ANY FAILURE
OF LENDER TO ADVANCE THE ENTIRE PRINCIPAL AMOUNT OF THE NOTE, OR
(D) ANY OTHER ACTION, OMISSION, FORBEARANCE OR INDULGENCE BY
LENDER IN CONNECTION WITH THE NOTE, ANY OF THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED THEREBY. EXCEPT AS
EXPRESSLY PROVIDED ABOVE, NO OBLIGATIONS SHALL BE IN ANY WAY
DISCHARGED, REDUCED, IMPAIRED OR OTHERWISE AFFECTED BY THE
FOREGOING PROVISIONS.
"Principal Amount" shall mean (i) as to H&Q,
$2,700,000, (ii) as to Xxxxxx, $600,000, (iii) as to Xxxxxx,
$400,000, and (iv) as to Starwood, $300,000.
"Pro Rata Share" shall mean, as to each Guarantor, the
proportion (expressed as a percentage) that such Guarantor's
Principal Amount bears to the Loan Amount.
This is a continuing Guaranty Agreement related to the
Obligations, including without limitation, those arising under
successive transactions which either continue the Obligations or
from time to time renew them. Except as expressly provided
above, the liability of each Guarantor hereunder shall be
unlimited.
The respective obligations of Guarantors hereunder are
irrevocable, continuing, absolute, and unconditional,
irrespective of the value, genuineness, validity, regularity, or
enforceability of the Note or any of the Obligations, or any of
the Loan Documents or any other guaranty of, or security for, any
thereof or any other instruments or documents contemplated
thereby or executed and delivered in connection therewith, and
irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of
a guarantor or surety. Without limiting the generality of the
foregoing, the obligations of Guarantors hereunder shall remain
in full force and effect without regard to, and shall not be
impaired, released, discharged, or in any way affected by:
(1) any amendment or modification of or supplement to
the Note or any other instrument or agreement made at any
time in respect of the indebtedness evidenced by the Note or
any other Loan Document; or
(2) any change in the identity, structure or
capitalization of Borrower, any Guarantor or any other
person or entity; or
(3) any exercise or non-exercise of or delay in
exercising any right, remedy, power, or privilege under or
in respect of this Guaranty Agreement, the Note or any other
Loan Document (even if any such right, remedy, power, or
privilege shall be lost thereby), or any waiver, consent,
indulgence, or other action or inaction in respect thereof;
or
(4) any bankruptcy, insolvency, reorganization,
arrangement, composition, assignment for the benefit of
creditors, or similar proceeding commenced by or against
Borrower, any Guarantor or any other person or entity; or
(5) any impairment of any collateral (whether real or
personal) securing the Obligations, including but not
limited to any failure to perfect or continue perfection of,
or any release or waiver of, any right given to Lender in
any property serving as security for the performance of any
of Borrower's obligations under the Note or any other Loan
Document, and also including any surrender, release, ex-
change, substitution, dealing with, or alteration of any
collateral or other property directly or indirectly securing
the Note; or
(6) any forbearance, renewal, or extension of time for
payment or performance of any of the Obligations; or
(7) the failure of Lender to give notice of default on
the part of Borrower, any Guarantor or any other person or
entity (whether or not such notice is required to be given
under any Loan Document or by law); or
(8) the death, incompetency or divorce of any
individual Guarantor; or
(9) abstaining from taking advantage of or realizing
upon any lien or other security interest, or other guaranty;
or
(10) the genuineness, validity, or enforceability of
the Note or any other Loan Document; or
(11) the forged signature of any Guarantor to this
Guaranty Agreement or the failure of any Guarantor to
execute this Guaranty Agreement; or
(12) changing the place of payment set forth in the
Note; or
(13) the addition of new parties who have liability to
pay and/or perform all or any part of the Obligations; or
(14) any limitation of liability of Borrower, any
Guarantor or any other person or entity contained in any
Loan Document except in this Guaranty Agreement; or
(15) any defense that may arise by reason of the
failure of Lender to file or enforce a claim against the
estate of Borrower, any Guarantor or any other person or
entity in any bankruptcy, probate or other proceeding; or
(16) any voluntary or involuntary liquidation,
dissolution, termination or winding-up of, or sale or other
transfer of all or substantially all of the assets of
Borrower, any Guarantor or any other person or entity, or
any marshalling of assets and liabilities, or other similar
proceeding affecting Borrower, any Guarantor or any other
person or entity or any of their respective assets,
properties or revenues; or
(17) the release of Borrower, any Guarantor or any
other person or entity (other than the voluntary release by
Lender of Borrower or any Guarantor) from the payment, per-
formance or observance of any of the agreements, covenants,
terms, or conditions contained in any of the Loan Documents
by operation of law or otherwise; or
(18) the foreclosure of any security interest securing
the Note, notwithstanding any provisions of law or of the
Loan Documents that may prevent Lender from seeking or
enforcing any deficiency remaining after a foreclosure of
such security interest; or
(19) the endorsement, assignment, or transfer of any of
the Loan Documents by Lender to any other party; or
(20) any legal or equitable defenses which Borrower,
any Guarantor or any other person or entity may assert with
respect to any of the Obligations or any obligations of any
other Guarantor under this Guaranty Agreement, including
without limitation, failure of consideration, breach of
warranty, payment, statute of frauds, statute of
limitations, accord and satisfaction, laches and usury.
No set-off, claim, counterclaim, reduction, or
diminution of any Obligation, or any defense of any kind or
nature which Borrower or any Guarantor now has or hereafter may
have against Lender shall be available hereunder to any Guarantor
against Lender. The Obligations of Guarantors hereunder shall be
automatically reinstated if for any reason any payment by or on
behalf of Borrower is rescinded or must otherwise be restored,
whether as a result of any proceedings in bankruptcy,
reorganization, or otherwise, notwithstanding any termination of
this Guaranty Agreement or the cancellation of the Note, any
other Loan Document or other agreement evidencing the Obliga-
tions.
Neither Lender nor any of its officers, directors,
employees or agents shall be liable for failure to use diligence
in collecting any Obligation or any obligation hereunder, or in
realizing upon any collateral securing the Obligations, in
creating or preserving the liability of any person or entity with
respect to any of the Obligations or any obligations hereunder,
or in creating or perfecting any lien on, or preserving, any
collateral securing the Obligations. Each Guarantor also
expressly and irrevocably waives (a) presentment for payment of,
notice of dishonor or nonpayment of, demand for, protest or
notice of protest with respect to, notice of any default with
respect to, or notice of acceleration of or intention to
accelerate, any of the Obligations, (b) all other notices or
formalities of any kind or nature whatsoever, including without
limitation, any notice of advances made to Borrower from time to
time under the Note or any of the other Loan Documents, any
notice of acceptance hereof or reliance hereon by Lender or any
owner or holder of any of the Obligations, any notice of any
other act or omission on the part of Lender, Borrower, any other
Guarantor or any other person or entity, (c) any notice of, or
defense based upon, any errors and omissions in connection with
Lender's administration of the loans evidenced by the Note or any
of the other Loan Documents, (d) any notice of, or defense based
upon, any and all other acts or omissions of Lender which change
the scope of such Guarantor's risk, (e) any requirement that any
right, power or remedy be exhausted, or asserted against,
Borrower, any Guarantor, any other person or entity, or any
collateral securing the Obligations, (f) any right to require the
marshalling of assets of Borrower, any other Guarantor, or any
other person or entity, (g) any defense based upon any election
of remedies by Lender, including without limitation, any defense
based upon any foreclosure on any collateral securing the
Obligations by nonjudicial means, and, until such time as the
Obligations are indefeasibly paid in full, (h) all rights of
subrogation, reimbursement, and indemnity whatsoever arising from
or in respect to any payment made by any Guarantor hereunder, and
(i) all rights of recourse to or to participate in any collateral
securing the Obligations. Furthermore, except as expressly set
forth herein, no set-off, claim, counterclaim, reduction, or
diminution of any Obligation, or any defense of any kind or
nature whatsoever which any Guarantor now has or hereafter may
have against Borrower, any other Guarantor, any other person or
entity, or Lender shall be available hereunder to such Guarantor
against Lender.
In addition to all liens upon and rights of set-off
against moneys, securities, or other property of Guarantors, or
any of them, given to Lender at law or in equity, Lender shall
have a lien upon, security interest in, and right of set-off
against, all moneys, securities, and other property of Guarantors
or of any of them now or hereafter in the possession of or on de-
posit with Lender, whether held in a general or special account
for deposit, or for safe-keeping, or otherwise. Every such lien
and right of set-off may be exercised after the occurrence of a
default by any Guarantor under this Guaranty Agreement without
notice to Guarantors.
Each and every right, remedy, and power hereby granted
to Lender or allowed it by law or other agreement shall be
cumulative and not exclusive of any other, and may be exercised
by Lender at any time and from time to time.
If one or more of the following shall occur and be con-
tinuing or shall exist:
(a) A proceeding shall have been instituted in a
court having jurisdiction seeking a decree or order for
relief in respect of any of the Guarantors, in an
involuntary case under any applicable bankruptcy,
insolvency, or other similar law now or hereafter in effect,
or for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator, or other similar official
of or for any of the Guarantors, or for any substantial part
of such Guarantor's property, or for the winding-up or
liquidation of such Guarantor's affairs; or
(b) Any of the Guarantors shall commence a
voluntary case under any applicable bankruptcy, insolvency,
or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the
appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator, or
other similar official, of any Guarantor or of any
substantial part of any Guarantor's property, or makes a
general assignment for the benefit of creditors, or admits
in writing their inability to pay their debts as they become
due, or fails generally to pay such Guarantor's debts as
they become due, or takes any action in furtherance of any
of the foregoing; or
(c) Any Guarantor shall fail to pay or perform
any of the Obligations immediately upon demand by Lender
following a default in the payment or performance thereof by
Borrower; or
(d) Any Guarantor shall fail or refuse to perform
any obligation or covenant of such Guarantor under this
Guaranty Agreement when such performance is required under
the terms hereof; or
(e) Any Guarantor revokes his or its obligations
under this Guaranty Agreement or this Guaranty Agreement
becomes ineffective or unenforceable in any manner; or
(f) Any representation or warranty made by any
Guarantor shall prove to be false or misleading as of the
time it was made or furnished; or
(g) Lender reasonably determines that there is
any material adverse change in the financial condition of
any Guarantor;
then the Guarantors shall be in default under this Guaranty
Agreement. Upon the occurrence of any such default, Lender may,
at its option, as to the Guarantors, accelerate the indebtedness
evidenced and secured by the Loan Documents (if not previously
accelerated), and exercise any other remedies available to Lender
at law, in equity, under any Loan Document, or otherwise.
This Guaranty Agreement is a guaranty of payment and
performance and not of collection. Without waiving any rights
against other persons, entities, or property, Lender may proceed
directly against any and all of the Guarantors (to the extent of
such Guarantor's Pro Rata Share of the Obligations plus any
Guarantor Collection Costs incurred by Lender in respect of such
Guarantor, but in any event not to exceed such Guarantor's
Guaranty Amount) whenever any payment or performance required
pursuant to the Obligations is not made or rendered to Lender
without being required to proceed first against Borrower or any
other person or entity, or to enforce any remedies against them,
or to foreclose on, sell, or otherwise dispose of or collect or
apply any property, real or personal, which is security for the
Obligations or for Guarantor's obligations hereunder. Lender
also may proceed against Borrower or any other person or entity,
or enforce any remedies against them, or foreclose on, sell, or
otherwise dispose of or collect or apply any property, real or
personal, securing the Obligations, without notice to and either
before, after, or concurrently with any proceeding against the
undersigned. Furthermore, the Guarantors waive as defenses to
the Obligations the pleading or defense based upon any election
of remedies by Lender, including but not limited to an election
to foreclose by nonjudicial sale or pursue any other remedy.
The Guarantors irrevocably: (i) agree that Lender or
any other holder or holders of the Note may bring suit, action,
or other legal proceedings arising out of this Guaranty Agreement
or the transaction contemplated hereby in the courts of Sedgwick
County, Kansas or the courts of the United States District Court
for the District of Kansas, but shall not be restricted to such
courts; (ii) consent to the jurisdiction of each such court in
any such suit, action, or proceeding; and (iii) consent to and
waive any objection which the Guarantors may have to proper venue
existing in any such courts.
H&Q covenants that until termination of this Guaranty
Agreement, H&Q will furnish to Lender: (i) within 120 days of
the close of each fiscal year of H&Q, certified year-end
financial statements of H&Q, prepared by independent certified
public accountants, prepared in accordance with GAAP,
consistently applied to the books and records; and (ii) within 45
after the end of each fiscal quarter, quarterly financial
statements of H&Q, prepared on a basis consistent with GAAP, as
applied to the annual financial statements of H&Q, certified as
true and correct to the best knowledge of the chief executive
officer, controller or chief financial officer of H&Q.
Each of Xxxxxx and Xxxxxx covenants that until
termination of this Guaranty Agreement, such Guarantor will
furnish to Lender, within 90 days of the end of each calendar
year, such Guarantor's personal balance sheet (which shall
include full disclosure and detail of any and all contingent
liabilities) and such Guarantor's personal income statement on
such forms (which Lender has agreed may be in the form of such
Guarantor's complete Federal Income Tax return) as Lender shall
reasonably require.
Starwood covenants that until termination of this
Guaranty Agreement, Starwood will furnish to Lender, within 90
days of the close of each fiscal year of Starwood, compiled
year-end financial statements of Starwood, prepared by independent
certified public accountants, prepared in accordance with GAAP,
consistently applied to the books and records.
Each of the Guarantors shall furnish to Lender,
promptly upon request by Lender, such additional financial and
other information concerning such Guarantor as Lender may
request.
Any notice, demand, or request by Lender to the
Guarantors, or any of them, or by the Guarantors, or any of them,
to Lender shall be in writing and shall be deemed to have been
duly given or made if either delivered personally or if mailed by
certified or registered mail, postage prepaid, addressed, in the
case of Lender, to Bank IV, N.A., 000 Xxxxx Xxxxxxxx, Xxxxxxx,
Xxxxxx 00000, Attention: Xx. Xxx Xxxxxx (or to the correct
address of any assignee of Lender), and in the case of each of
the Guarantors, to the address set forth below the signature of
such Guarantor to this Guaranty Agreement. Notice by mail shall
be deemed given upon deposit in the United States mail in such
manner.
Guarantors agree that Lender shall have no duty to
disclose to the Guarantors any information it may now or
hereafter have about Borrower or any of the Guarantors,
regardless of whether Lender has reason to believe that any such
information materially increases the risk beyond that which the
Guarantors intend to assume or has reason to believe that such
information is unknown to the Guarantors or has a reasonable
opportunity to communicate such information to the Guarantors.
It is expressly understood and agreed by the Guarantors that the
Guarantors are fully responsible for being and keeping themselves
informed of the financial condition of Borrower and each other
and of all circumstances bearing on the risk of non-payment and
non-performance of any of the Obligations. Without limiting the
generality of the foregoing or any other provision hereof, each
Guarantor represents, warrants and covenants to Lender that (i)
such Guarantor has independently obtained information, financial
and otherwise, about the financial condition and operations of
Borrower and has not relied on Lender for any such information,
(ii) such Guarantor is aware that Borrower has not been operating
profitably, (iii) such Guarantor has reviewed and is familiar
with the financial statements of Borrower dated on or about June
30, 1996, (iv) notwithstanding the contents of such financial
statements or the financial condition of Borrower as reflected
therein, such Guarantor has requested that Lender extend credit
to Borrower pursuant to the Note, (v) such Guarantor will
benefit from the extension of credit to Borrower pursuant to the
Note, (vi) such Guarantor acknowledges that Lender would not
extend such credit to Borrower pursuant to the Note but for such
Guarantor's promises hereunder, and (vii) the present or future
financial condition of Borrower, or Lender's or such Guarantor's
knowledge or lack of knowledge thereof, shall not constitute a
defense to or otherwise affect such Guarantor's obligations
hereunder.
After the occurrence and during the continuance of any
default under this Guaranty Agreement, the Note or any other Loan
Document, all existing and future indebtedness of Borrower to any
of the Guarantors is hereby subordinated to all indebtedness
hereby guaranteed and, without the prior written consent of
Lender, which consent may be withheld at Lender's sole
discretion, shall not be paid or withdrawn in whole or in part,
nor will any of the Guarantors accept any payment of or on
account of any such indebtedness or as a withdrawal of capital
while this Guaranty Agreement is in effect. Immediately upon
Lender's request, Borrower shall pay to Lender all or any part of
such subordinated indebtedness and any capital which any of the
Guarantors is entitled to withdraw. Each payment by Borrower to
any of the Guarantors in violation of this Guaranty Agreement
shall be received by such Guarantor in trust for Lender and shall
be paid to Lender immediately on account of the indebtedness of
Borrower to Lender. No such payment shall reduce or affect in
any manner the liability of any of the Guarantors under this
Guaranty Agreement.
Guarantors will file all claims against Borrower in any
bankruptcy or other proceeding in which the filing of claims is
required by law upon any indebtedness of Borrower to Guarantors
and will assign to Lender all rights of Guarantors thereunder.
If Guarantors do not file any such claim, Lender, as attorney-
in-fact for the undersigned hereby irrevocably appointed, is hereby
authorized to do so in the name of the undersigned or, in
Lender's discretion, to assign the claim and to cause proof of
claim to be filed in the name of Lender's nominee. In all such
cases, whether in administration, bankruptcy, or otherwise, the
person or persons authorized to pay such claims shall pay to
Lender the full amount thereof and, to the full extent necessary
for that purpose, Guarantors hereby assign to Lender all of
Guarantors' rights to any such payments or distributions to which
Guarantors otherwise would be entitled.
Each of the Guarantors represents, warrants, and
covenants to and with Lender that:
(i) There is no action or proceeding pending or,
to the knowledge of such Guarantor, threatened against such
Guarantor before any court or administrative agency which is
reasonably likely to result in any material adverse change
in the business or financial condition of such Guarantor or
in the property of such Guarantor;
(ii) Such Guarantor has filed all federal and
state income tax returns which such Guarantor has been
required to file, and has paid all taxes as shown on said
returns and on all assessments received by such Guarantor to
the extent that such taxes have become due;
(iii) The execution and delivery of this Guaranty
Agreement, the fulfillment of and compliance with the terms
and provisions hereof, and the failure to give notice to or
to obtain the consent, authorization, or approval of any
person or entity, private or public, will not conflict with
or violate any applicable law, regulation or statute, nor
conflict with or result in a breach of the terms, condi-
tions, or provisions of, or constitute a default under, any
agreement, contract, instrument, order, decree, or judgment
to which any of the Guarantors are parties or by which any
of them are bound, where such breach or default would have a
material adverse effect on the business or financial
condition of such Guarantor, or result in the creation of
any lien, charge, or encumbrance upon any property or assets
of any of the undersigned;
(iv) This Guaranty Agreement has been duly and
validly executed and delivered by each Guarantor and this
Guaranty Agreement is a valid and legally binding agreement
of such Guarantor and is enforceable against such Guarantor
in accordance with its terms;
(v) Such Guarantor has either examined the Loan
Documents or has had an opportunity to examine the Loan
Documents and has waived the right to examine them;
(vi) Such Guarantor has the full power, authority,
and legal right to execute and deliver this Guaranty
Agreement;
(vii) Such Guarantor's financial statements and
all other financial data and information furnished by it to
Lender fairly and accurately represent the financial
condition of such Guarantor. As of the date hereof, there
has been no material change in the financial position of
such Guarantor of a material adverse nature which could
reasonably be expected to impair its ability to perform the
Obligations; and
(viii) To the best of such Guarantor's knowledge,
such Guarantor is not violating any law, regulation,
ordinance, or order of any court or federal, state,
municipal, or other governmental agency, commission, board,
bureau, agency, or instrumentality, the violation of which
would have a material adverse effect on the business or
financial condition of such Guarantor.
H&Q further represents, warrants, and covenants to and
with Lender that:
(a) It is duly organized and validly existing
pursuant to the laws of the State of California, is in good
standing in the State of California, and is qualified to do
business in all states in which qualification is so
required; and
(b) H&Q has duly and validly authorized
execution, delivery and performance of this Guaranty
Agreement by all necessary corporate action and this
Guaranty Agreement in fact has been duly and validly
executed and delivered; and
(c) H&Q has good and marketable title to all of
its property and assets as disclosed in the financial
information provided Lender and there are no mortgages,
deeds of trust, liens, pledges, or other encumbrances of any
character on such property other than liens for current
taxes and governmental assessments not yet due and payable
and liens in favor of Lender or approved in writing by
Lender; and
(d) There are no legal or governmental claims,
actions, suits, or proceedings pending against or, to the
best of H&Q's knowledge, affecting H&Q or any of H&Q's
property, at law or in equity, which, if determined ad-
versely to H&Q, would individually or in the aggregate
result in a material adverse change in the conditions
(financial or otherwise), business, or results of operations
of H&Q, and, to the best of H&Q's knowledge, no such claims,
actions, suits, or proceedings are threatened or
contemplated by any governmental authorities or by others.
Each of Xxxxxx and Xxxxxx further represents,
warrants, and covenants to and with Lender that:
(a) such Guarantor has good and marketable title
to all of his property and assets as disclosed in the
financial information provided Lender and there are no
mortgages, deeds of trust, liens, pledges, or other
encumbrances of any character on such property other than
liens for current taxes and governmental assessments not yet
due and payable and liens in favor of Lender or approved in
writing by Lender; and
(b) There are no legal or governmental claims,
actions, suits, or proceedings pending against or, to the
best of such Guarantor's knowledge, affecting such Guarantor
or any of such Guarantor's property, at law or in equity,
which, if determined adversely to such Guarantor, would
individually or in the aggregate result in a material
adverse change in the condition (financial or otherwise) of
such Guarantor, and, to the best of such Guarantor's
knowledge, no such claims, actions, suits, or proceedings
are threatened or contemplated by any governmental author-
ities or by others.
Starwood further represents, warrants, and covenants to
and with Lender that:
(a) It is a limited partnership duly organized
and validly existing pursuant to the laws of the State of
Kansas, is in good standing in the State of Kansas, and is
qualified to do business in all states in which
qualification is so required; and
(b) Starwood has duly and validly authorized
execution, delivery and performance of this Guaranty
Agreement by all necessary partnership action and this
Guaranty Agreement in fact has been duly and validly
executed and delivered; and
(c) The Xxxxxx X. Xxxxx Revocable Trust dated
October 13, 1993 is the sole manager of Starwood, and Xxxxxx
X. Xxxxx is the sole trustee of the Xxxxxx X. Xxxxx
Revocable Trust dated October 13, 1993; and
(d) Starwood has good and marketable title to all
of its property and assets as disclosed in the financial
information provided Lender and there are no mortgages,
deeds of trust, liens, pledges, or other encumbrances of any
character on such property other than liens for current
taxes and governmental assessments not yet due and payable
and liens in favor of Lender or approved in writing by
Lender; and
(e) There are no legal or governmental claims,
actions, suits, or proceedings pending against or, to the
best of Starwood's knowledge, affecting Starwood or any of
Starwood's property, at law or in equity, which, if
determined adversely to Starwood, would individually or in
the aggregate result in a material adverse change in the
conditions (financial or otherwise), business, or results of
operations of Starwood, and, to the best of Starwood's
knowledge, no such claims, actions, suits, or proceedings
are threatened or contemplated by any governmental author-
ities or by others.
All of the foregoing representations, warranties, and
covenants shall survive the execution hereof and be continuing
and will not terminate until Lender has received payment and per-
formance in full of all Obligations.
Each Guarantor shall promptly give Lender notice of all
litigation or proceedings before any court or governmental
authority affecting said Guarantor or its property, except
litigation or proceedings which, if adversely determined, would
not have a material adverse effect on the financial condition or
operations of said Guarantor or its ability to perform any of its
obligations hereunder.
Each Guarantor shall give any representative of Lender
access to, and permit such representative to examine, copy, or
make extracts from, any and all books, records, and documents in
the possession of said Guarantor relating to the performance of
said Guarantor's obligations hereunder and under any other Loan
Document, all at such times during normal business hours after
reasonable notice and as often as Lender may reasonably request.
No failure to exercise, nor any delay in exercising or
course of dealing in respect of, any right, power, or remedy
hereunder or under any other Loan Document by Lender shall
operate as a waiver thereof, nor shall any single or partial
exercise by Lender of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any
other right. The remedies provided herein and in any other Loan
Document shall be cumulative and not exclusive of any remedies
provided by law.
Each Guarantor shall pay, and will reimburse Lender
upon demand for, all Guarantor Collection Costs incurred by or on
behalf of Lender in respect of such Guarantor. This Guaranty
Agreement shall terminate upon the full payment and performance
of the Obligations, except that each Guarantor's obligations
under this paragraph shall survive the payment or performance of
the Obligations.
This Guaranty Agreement may be executed in two or more
counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed an original, but all
such counterparts shall together constitute but one and the same
instrument. The Guaranty Agreement may be executed and
delivered by fax or other electronic transmission and any such
execution and delivery shall be fully effective, as if an
original hereof had been executed and delivered in person.
This Guaranty Agreement constitutes the entire
agreement, and supersedes all prior agreements and
understandings, both written and oral, between Guarantors and
Lender with respect to the subject matter hereof. No course of
dealing between the parties, no course of performance, no usage
of trade, and no parol or extrinsic evidence of any nature shall
be used to supplement or modify any term hereof, nor are there
any conditions to the full effectiveness of this Guaranty
Agreement. If any clause, provision, or section of this Guaranty
Agreement shall be held illegal or invalid by any court, the
validity of such clause, provision, or section shall not affect
any of the remaining clauses, provisions, or sections hereof, and
this Guaranty Agreement shall be construed and enforced as if
such illegal or invalid clause, provision, or section had not
been contained herein. In case any agreement or obligation
contained in this Guaranty Agreement be held to be in violation
of law, then such agreement or obligation shall be deemed to be
the agreement or obligation of Guarantors, as the case may be, to
the full extent permitted by law. No waiver of any breach of
this Guaranty Agreement or of any warranty or representation
hereunder by Lender shall be deemed to be a waiver of any other
breach by the Guarantors (whether preceding or succeeding and
whether or not of the same or similar nature), and no acceptance
of payment or performance by Lender after any breach by the
Guarantors shall be deemed to be a waiver of any breach of this
Guaranty Agreement or of any representation or warranty hereunder
by the Guarantors, whether or not Lender knows of such breach at
the time it accepts such payment or performance. Except as
otherwise expressly provided herein, any approval or consent
provided to be given by a party hereunder may be given or
withheld in the absolute discretion of such party.
As expressly provided herein, the obligations and
liabilities of the Guarantors under this Guaranty Agreement are
several and not joint. The obligations of Guarantors hereunder
extend to the separate and community property of each of the
Guarantors. The unconditional liability of each Guarantor
applies notwithstanding that such Guarantor is severally liable
only for such Guarantor's Pro Rata Share of the Obligations and
any Guarantor Collection Costs incurred by Lender in respect of
such Guarantor as expressly set forth herein. As used herein,
the singular shall mean the plural, the male the female, the
personal the impersonal, and vice versa.
This Guaranty Agreement is executed to induce Lender to
extend credit to Borrower and in consideration of such credit
extended to be extended by Lender to Borrower and Lender is
relying upon this Guaranty Agreement in agreeing to extend credit
to Borrower.
Each Guarantor may give written notice to Xx. Xxx
Xxxxxx of Lender that the Guarantor giving such notice will not
be liable under this Guaranty Agreement for any Obligations
created, incurred or arising after the giving of such notice, and
such notice will be effective as to the Guarantor who gives such
notice from and after (but not before) such time as said written
notice is actually delivered to and received by, and receipted
for in writing by, Xx. Xxx Xxxxxx of Lender; provided that such
notice shall not in anyway impair, limit or otherwise affect the
liability and responsibility of any other Guarantor hereunder
with respect to any Obligations theretofore or thereafter
existing or arising; and provided further, that such notice shall
not discharge, impair or otherwise affect the liability and
responsibility of the Guarantor giving such notice with respect
to all Obligations created, incurred or arising prior to the
receipt of such notice by Xx. Xxx Xxxxxx of Lender as aforesaid,
or with respect to any renewals or extensions of such
Obligations, or with respect to interest or costs of collection
(including, without limitation, reasonable attorneys' fees)
thereafter accruing on or with respect to such Obligations.
This Guaranty Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be
governed by, the laws of the State of Kansas.
This Guaranty Agreement is fully assignable by Lender,
together with the Obligations.
These presents shall bind the Guarantors and the
Guarantors' heirs, personal representative, successors, and
assigns, and the benefits hereof shall inure to Lender, its
successors and assigns.
LENDER SHALL NOT BE LIABLE FOR ANY CLAIMS, DEMANDS,
LOSSES, OR DAMAGES MADE, CLAIMED, OR SUFFERED BY BORROWER OR ANY
AND ALL GUARANTOR(S), EXCEPT THOSE CAUSED BY LENDER'S WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE.
EACH OF THE UNDERSIGNED WAIVES TRIAL BY JURY IN ANY
LAWSUIT, ACTION, PROCEEDING, COUNTERCLAIM, OR CROSS-CLAIM ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THIS GUARANTY AGREEMENT OR
THE LOAN OR THE TRANSACTIONS CONTEMPLATED HEREBY.
WITNESS the due execution hereof this 30th day of July,
1996.
XXXXXXXXX & XXXXX GROUP, a
California corporation
By:________________________________
Name:______________________________
Title:_____________________________
Address:___________________________
___________________________________
___________________________________
XXXXXXX X. XXXXXX, an individual
Address:___________________________
___________________________________
XXXXXX X. XXXXXX, an individual
Address:___________________________
___________________________________
STARWOOD INVESTMENTS, L.P., a
Kansas limited partnership
By: Xxxxxx X. Xxxxx Revocable
Trust Dated October 13, 1993,
Manager of Starwood
Investments, L.P.
By: ______________________________
Xxxxxx X. Xxxxx, Trustee
Address:
STATE OF CALIFORNIA )
) ss.
COUNTY OF ________ )
The foregoing instrument was acknowledged before me this
____ day of _________, 1996, by _____________________, the/a
_________________ of XXXXXXXXX & XXXXX GROUP, a California
corporation, on behalf of the corporation.
[SEAL] _____________________________
Notary Public
My Commission Expires:
______________________
STATE OF KANSAS )
) ss.
COUNTY OF _________ )
On this ____ day of ________, 1996, before me, a notary
public in and for said state, personally appeared XXXXXXX X.
XXXXXX to me personally known, who being duly sworn, acknowledged
that he had executed the foregoing instrument for purposes
therein mentioned and set forth.
____________________________________
Notary Public
My Commission Expires:
______________________
STATE OF KANSAS )
) ss.
COUNTY OF _________ )
On this ____ day of ________, 1996, before me, a notary
public in and for said state, personally appeared XXXXXX X.
XXXXXX, to me personally known, who being duly sworn,
acknowledged that he had executed the foregoing instrument for
purposes therein mentioned and set forth.
____________________________________
Notary Public
My Commission Expires:
______________________
STATE OF KANSAS )
) ss.
COUNTY OF _________ )
On this ____ day of ________, 1996, before me, a notary
public in and for said state, personally appeared XXXXXX X.
XXXXX, trustee of the Xxxxxx X. Xxxxx Revocable Trust dated
October 13, 1993, to me personally known, who being duly sworn,
acknowledged that he had executed the foregoing instrument for
purposes therein mentioned and set forth.
____________________________________
Notary Public
My Commission Expires:
______________________
Borrower joins in this Guaranty Agreement for the sole
purpose of consenting to and agreeing to any provisions hereof
affecting Borrower.
VANGUARD AIRLINES, INC.
By:________________________________
Name:______________________________
Title: ____________________________
