CONTINUING UNCONDITIONAL GUARANTY
To induce the Provident Bank ("Provident") to give and continue to give
credit to Xxxx of All Games, Inc. ("Borrower"), whether to Borrower alone or to
Borrower and others, and in consideration of the extension of such credit, the
undersigned, jointly and severally if more than one, hereby absolutely and
unconditionally guarantees prompt payment when due of any and all existing and
future indebtedness or liability of every kind, nature or character (including,
without limitation, principal, interest, all costs of collection and attorneys'
fees) owing to Provident by Xxxxxxxx, all whether direct or indirect, absolute
or contingent and whether incurred as primary debtor, co-maker or guarantor
(hereinafter the "Indebtedness"). The undersigned further absolutely and
unconditionally guarantees the prompt performance when due of all terms,
covenants and conditions of any agreement between the Borrower and Provident
that relates to the Indebtedness. The undersigned undertakes this continuing,
absolute and unconditional guaranty of the aforementioned payment and
performance by Borrower notwithstanding that any portion of the Indebtedness
shall be void, voidable or unenforceable as between the Borrower and Provident.
It is understood that while the amount of credit that may be extended to, and
the amount of the Indebtedness or liability that may be incurred by Xxxxxxxx is
not limited, the liability of each of the undersigned to Provident hereunder is
(check one of the following):
_X_ Unlimited in amount
| | Limited to _____________________________________________________
| | Limited to a principal amount of _______________, plus interest
thereon and all expenses reimbursable pursuant to the following
paragraph.
If none of the above boxes are checked, this guaranty shall be unlimited in
amount.
This absolute, continuing, unconditional and unrestricted guaranty is a
guaranty of payment and not a guaranty of collection. Upon Xxxxxxxx's failure to
pay the Indebtedness promptly when due, Provident, at its sole option, may
proceed against the undersigned (or any one or more of them if more than one) to
collect the Indebtedness, with or without proceeding against the Borrower, any
co-maker or co-surety or co-guarantor, any indorser or any collateral held as
security for the Indebtedness. Any and all payments upon the Indebtedness made
by the Borrower, the undersigned, or any other person, and the proceeds of any
and all collateral securing the payment o the Indebtedness and this guaranty,
may be applied by Provident in whatever manner it may determine, it its sole
discretion. The undersigned agrees to reimburse Provident for all expenses of
any nature whatsoever including, without limitation, attorneys' fees incurred or
paid by Provident in exercising any right, power or remedy conferred by this
guaranty.
The obligations of the undersigned set forth in this guaranty shall extend
to all amendments, supplements, modifications, renewals, replacements or
extensions of the Indebtedness at any rate of interest. The liability of the
undersigned and the rights of Provident under this guaranty shall
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not be impaired or affected in any manner by, and the undersigned hereby
consents in advance to and waives any requirement of notice for, any (1)
disposition, impairment, release, surrender, substitution, or modification of
any collateral securing the Indebtedness or the obligations created by this
guaranty or any failure to perfect a security interest in any collateral; (2)
release (including adjudication or discharge in bankruptcy) or settlement with
any person primarily or secondarily liable for ht Indebtedness (including,
without limitation, any maker, indorser, guarantor or surety); (3) delay in
enforcement of payment of the Indebtedness or delay in enforcement of this
guaranty; (4) delay, omission, waiver, or forbearance in exercising any right or
power with respect to the Indebtedness or this guaranty; (5) defense arising
from the enforceability or validity of the Indebtedness or any part thereof or
the genuineness, enforceability or validity of any agreement relating thereto;
(6) defenses or counterclaims that the Borrower may assert on the Indebtedness,
including, but not limited to, failure of consideration, breach of warranty,
fraud, payment, statute of frauds, bankruptcy, infancy, statute of limitations,
lender liability, accord and satisfaction and usury; (7) extensions or
modifications of any indebtedness; or (8) other act or omission which might
constitute a legal or equitable discharge of the undersigned. The undersigned
waives all defenses based on suretyship or impairment of collateral,
presentment, protest, demand for payment, any right of set-off, notice of
dishonor or default, notice of acceptance of this guaranty, notice of the
incurring of any of
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the Indebtedness and notice of any other kind in connection with the
Indebtedness or this guaranty. The undersigned also waives any right to require
a commercially reasonable disposition of any collateral securing the
Indebtedness.
The undersigned agrees that in the event of (i) the dissolution or
insolvency of Borrower, (ii) the inability of Borrower to pay its debts as they
become due, (iii) an assignment by Borrower for the benefit of its creditors, or
(iv) the institution of any bankruptcy or other proceeding by or against the
Borrower alleging that Borrower is insolvent or unable to pay its debts as they
become due, and whether or not such event shall occur at a time when the
Indebtedness is not then due and payable, the undersigned shall pay the
Indebtedness to Provident promptly upon demand as if the Indebtedness was then
due and payable. The undersigned hereby waives, releases and discharges any
claim, right or remedy which the undersigned may now have or hereafter acquire
against Borrower that arises hereunder and/or from the performance by the
undersigned hereunder including, without limitation, any claim, remedy or right
of subrogation, reimbursement, exoneration, contribution, indemnification, or
participation in any claim, right or remedy of Provident against Borrower or any
security which Provident now has or hereafter acquires, whether or not such
claim, right or remedy arises in equity, under contract, by statute, under
common law or otherwise.
The undersigned agrees that this guaranty shall continue to be effective or
be reinstated, as the case may be, if
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at any time payment, or any part thereof, of principal, interest or any other
amount with respect to the Indebtedness is avoided, rescinded or must otherwise
by restored by Provident upon the bankruptcy or reorganization of Borrower or
any other person or otherwise.
Upon any portion of the Indebtedness becoming due and not being fully paid
and satisfied, the total sum then due hereunder may immediately be charged
against any account or accounts maintained by the undersigned with Provident,
without notice to or further consent from the undersigned. The undersigned shall
promptly provide such financial information as the holder shall reasonably
request from time to time.
As a specially bargained inducement for Provident to extend credit to
Borrower: (i) THE UNDERSIGNED HEREBY EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY
IN ANY LAWSUIT OR PROCEEDING RELATED TO THIS GUARANTY OR ARISING IN ANY WAY FROM
THE INDEBTEDNESS OR TRANSACTIONS INVOLVING PROVIDENT AND THE BORROWER AND (ii)
THE UNDERSIGNED HEREBY DESIGNATE(S) ALL COURTS OF RECORD SITTING IN CINCINNATI,
OHIO AND HAVING JURISDICTION OVER THE SUBJECT MATTER, STATE AND FEDERAL, AS
FORUMS WHERE ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING FROM OR OUT
OF THIS GUARANTY, ITS MAKING, VALIDITY OR PERFORMANCE, MAY BE PROSECUTED AS TO
ALL PARTIES, THEIR SUCCESSORS AND ASSIGNS, AND BY THE FOREGOING DESIGNATION THE
UNDERSIGNED CONSENT(S) TO THE JURISDICTION AND VENUE OF SUCH COURTS.
The undersigned authorizes any attorney at law, including an attorney
engaged by Provident, to appear in any
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court of record in the State of Ohio or any other State or Territory of the
United States, after the indebtedness evidenced hereby, or any part thereof,
becomes due and waive the issuance and service of process and confess judgment
against any one or more than one of the undersigned in favor of Provident, for
the amount then appearing due, together with costs of suit and, thereupon, to
release all errors and waive all rights of appeal and stay of execution, but no
such judgment or judgments against any one of the undersigned shall be a bar to
subsequent judgment or judgments against any one or more than one of such
persons against the undersigned. The undersigned hereby expressly waives any
conflict of interest that Provident's attorney may have in confessing such
judgment against the undersigned. This warrant of attorney to confess judgment
is a joint and several warrant of attorney. The forgoing warrant of attorney
shall survive any judgment, and if any judgment be vacated for any reason, the
holder thereof nevertheless may thereafter use the foregoing warrant of attorney
to obtain an additional judgment or judgments against the undersigned, or any
one or more of them.
This guaranty shall inure to the benefit of any bind the parties hereto,
their successors and assigns, and their legal representatives or heirs.
Provident may, at its option, assign this guaranty to any other party who is or
becomes the indorsee or assignee of any part of the Indebtedness or who is in
possession of or the bearer of any part of the Indebtedness that is payable to
the bearer, and the undersigned shall continue to be liable under this guaranty
to such other part to the extent of
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such indorsed, assigned or possessed indebtedness. This guaranty shall be deemed
to be a contract entered into and made pursuant to the laws of the State of Ohio
and shall in all respects be governed, construed, applied and enforced in
accordance with the laws of said state.
Each of the undersigned that is a corporation warrants that it has the
corporate power to execute this guaranty, that all the necessary corporate
actions have been taken to permit the undersigned to give this guaranty and that
the person(s) executing this guaranty is (are) duly empowered to do so on behalf
of the undersigned. Each of the undersigned that is a partnership warrants that
it has the power to execute this guaranty, that all necessary partnership
actions have been taken to permit the undersigned to give this guaranty, and
that the person(s) executing this guaranty is (are) duly empowered to do so on
behalf of the undersigned
Signed and delivered by the undersigned at Cincinnati, Ohio, on August 31,
1998.
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WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
WITNESS(S) GUARANTOR(S)
TAKE-TWO INTERACTIVE SOFTWARE, INC.
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Xxxxxxx X. Xxx, Secretary
By:
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Xxxx X. Xxxxx, President
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