<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
McNEIL REAL ESTATE FUND XXVII, L.P.
- --------------------------------------------------------------------------------
(Name of Issuer)
Units of Limited Partnership Interest
- --------------------------------------------------------------------------------
(Title of Class of Securities)
Not Applicable
- --------------------------------------------------------------------------------
(CUSIP Number)
Robert A. McNeil
13760 Noel Road, Suite 700, Dallas, Texas 75240, (214) 448-5800
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
Copies to:
W. Scott Wallace
Haynes and Boone, L.L.P.
3100 NationsBank Plaza
901 Main Street
Dallas, Texas 75202-3789
(214) 651-5000
October 4, 1995
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D,
and is filing this schedule because of Rule 13d-1(b)(3) or (4), check
the following box ___.
Check the following box if a fee is being paid with this statement.
_X_ (A fee is not required only if the reporting person: (1) has
a previous statement on file reporting beneficial ownership of more
than five percent of the class of securities described in Item 1;
and (2) has filed no amendment subsequent thereto reporting
beneficial ownership of less than five percent of such class.) (See
Rule 13d-7.)
<PAGE>
SCHEDULE 13D
CUSIP No. Not Applicable Page 2 of 28 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Robert A. McNeil
McNeil Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) __X__
(b) _____
3 SEC USE ONLY
4 SOURCE OF FUNDS
Robert A. McNeil: PF and BK
McNeil Partners, L.P.: WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Robert A. McNeil -- U.S.A.
McNeil Partners, L.P. -- Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
Robert A. McNeil -- 399,500 Units
McNeil Partners, L.P. -- 1,500 Units
See Item 5*.
8 SHARED VOTING POWER
See Item 5*.
9 SOLE DISPOSITIVE POWER
See Item 5*.
10 SHARED DISPOSITIVE POWER
See Item 5.*
* Voting and dispositive power is exercised
on behalf of McNeil Partners, L.P. by its
general partner, McNeil Investors, Inc., a
Delaware corporation, which is wholly-owned
by Robert A. McNeil.
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
Robert A. McNeil -- 399,500 Units
McNeil Partners, L.P. -- 1,500 Units
See Item 5*.
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES ____
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.55%
14 TYPE OF REPORTING PERSON*
IN, PN
<PAGE>
Item 1. Security and Issuer.
--------------------
The class of equity securities to which this
statement relates is Units of Limited Partnership Interest
("Units") of McNeil Real Estate Fund XXVII, L.P., a Delaware
limited partnership ("Issuer"). The principal executive
offices of Issuer are located at 13760 Noel Road, Suite 700,
Dallas, Texas 75240.
Item 2. Identity and Background.
------------------------
This statement is being filed by Robert A. McNeil
and McNeil Partners, L.P., a Delaware limited partnership
("MP"). Mr. McNeil's address is 13760 Noel Road, Suite 700,
Dallas, Texas 75240. Mr. McNeil is the President of
Investors (defined below) whose principal address is
13760 Noel Road, Suite 700, Dallas, Texas 75240.
During the last five years, Mr. McNeil
(a) has not been convicted in a criminal
proceeding (excluding traffic violations or
similar misdemeanors), or
(b) has not been a party to a civil proceeding of
a judicial or administrative body of competent
jurisdiction and as a result of such proceeding is
or was subject to a judgment, decree or final
order enjoining future violations of, or
prohibiting or mandating activities subject to,
federal or state securities laws or finding any
violations with respect to such laws.
Mr. McNeil is a citizen of the United States.
MP is a limited partnership organized under the
laws of the state of Delaware and is the sole general
partner of Issuer. The principal executive offices of MP
are located at 13760 Noel Road, Suite 700, Dallas, Texas
75240. MP is engaged in the business of real estate
management.
The general partner of MP is McNeil Investors,
Inc., a Delaware corporation ("Investors"). All of the
issued and outstanding shares of Investors are beneficially
owned by Robert A. McNeil. Mr. McNeil is also the sole
limited partner of MP.
During the last five years, to the best knowledge
of MP, neither MP nor its general partner or any director or
executive officer of its general partner
(a) has been convicted in a criminal proceeding
(excluding traffic violations or similar
misdemeanors), or
(b) has been a party to a civil proceeding of a
judicial or administrative body of competent
jurisdiction and as a result of such proceeding is
or was subject to a judgment, decree or final
order enjoining future violations of, or
prohibiting or mandating activities subject to,
federal or state securities laws or finding any
violations with respect to such laws.
<PAGE>
The following information is provided with respect
to natural persons who are executive officers, directors or
controlling persons of Investors, the general partner of MP:
(a) Robert C. Irvine and Donald K. Reed are
executive officers; Robert A. McNeil, Carole J.
McNeil and Donald K. Reed are directors; Robert A.
McNeil and Carole J. McNeil are Co-Chairmen of the
Board.
(b) The business address of each person listed
above is 13760 Noel Road, Suite 700, Dallas, Texas
75240.
(c) The principal occupation or employment of
each person listed above is:
Robert C. Irvine - Vice President and Secretary
of Investors
Robert A. McNeil - Director and Co-Chairman of
the Board of Investors
Carole J. McNeil - Co-Chairman of the Board of
Investors
Donald K. Reed - Chief Executive Officer,
President and Director of
Investors
(d)-(e) During the last five years, to the best
knowledge of MP and Robert A. McNeil, none of the
persons listed in (a) above, (i) have been
convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors), or
(ii) was a party to a civil proceeding of a
judicial or administrative body of competent
jurisdiction and as a result of such proceeding
were or are subject to a judgment, decree or final
order enjoining future violations of, or
prohibiting or mandating activities subject to,
federal or state securities laws or finding any
violation with respect to such laws.
(f) Each person listed above in (a) is a citizen
of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
--------------------------------------------------
As of October 4, 1995, Mr. McNeil purchased
399,500 Units of Issuer for a price of $5.12 per Unit. Such
Units were acquired in a private purchase conducted through
an auction process. Mr. McNeil acquired the 399,500 Units
with (i) his own personal funds and (ii) $1,000,000 borrowed
under Mr. McNeil's personal line of credit with a commercial
bank. The line of credit is a demand note that bears
interest at a variable rate and is secured by certain
marketable securities. Additionally, MP owns 1,500 Units of
Issuer.
<PAGE>
Item 4. Purpose of Transaction.
-----------------------
The Units were acquired by Mr. McNeil and MP for
investment purposes. Although neither Mr. McNeil nor MP has
any present intention to commence a tender offer for
additional Units, MP has announced it is contemplating
tender offers for units of other public real estate limited
partnerships for which MP is the general partner. It is
possible that in connection with such other tender offers,
if any, MP or Mr. McNeil may commence a tender offer for
additional Units.
Except as set forth above, MP does not have any
plans or proposals with respect to the purchase of Units of
the Issuer that relate to or would result in any of the
actions specified in clauses (a) through (j) of Item 4 of
Schedule 13D.
Item 5. Interest in Securities of the Issuer.
-------------------------------------
(a) The aggregate number of Units owned by (i)
Mr. McNeil is 399,500 and (ii) MP is 1,500. The
401,000 Units owned by Mr. McNeil and MP
constitute 7.55% of the class of the securities
identified pursuant to Item 1.
(b) Mr. McNeil has the sole power to vote and to
dispose of the 401,000 Units (subject to
applicable restrictions on transferability
contained in the Issuer's limited partnership
agreement). As MP's sole general partner,
Investors has the sole power to control the
business affairs of MP and Robert A. McNeil, as
the owner of all the stock of Investors,
ultimately controls the business affairs of
Investors.
(c) See Item 3.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
--------------------------------------------------
Relationships with Respect to Securities of the
--------------------------------------------------
Issuer.
-------
See Item 5(b) and Item 2.
Item 7. Material to be Filed as Exhibits.
---------------------------------
7.1: Form of Robert A. McNeil's personal line of
credit, including the demand note and collateral documents,
referenced in Item 3.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set
forth in this statement is true, complete and correct.
Dated: October 13, 1995
McNEIL PARTNERS, L.P.
By: McNeil Investors, Inc.,
its general partner
By: /s/ Robert A. McNeil
----------------------
Name: Robert A. McNeil
Title: Chairman
/s/ Robert A. McNeil
--------------------
Robert A. McNeil
<PAGE>
EXHIBIT INDEX
Exhibit Description Page
- ------- ----------- ----
7.1 Form of Robert A. McNeil's 8
personal line of credit,
including the demand note
and collateral documents.
<PAGE>
EXHIBIT 7.1
-----------
DEMAND NOTE (Multiple Advances)
Interest Bearing--Stated Rate/Quoted Rate
Not for Consumer Transactions
, 19
------------------- ------------- ---
(City and State) (Date)
$__________
ON DEMAND, for value received, the undersigned, jointly
and severally (if executed by two or more parties), hereby
promises to pay to the order of_____________________________
(the "Lender"), at its Office or Branch at__________________
_____________________ the principal sum of__________________
DOLLARS ($___________________), or if less, the aggregate
unpaid principal amount of all advances made hereunder by
the Lender to the undersigned during the period from the
date hereof to the date of demand for payment hereunder and
outstanding on such date of demand; together with interest
on any and all principal amounts hereunder from time to time
outstanding from and including the date hereof to the
Business Day (as defined herein), of the Lender on which
said principal amounts are paid in full, at a fluctuating
interest rate per annum (the "Stated Rate") equal at all
times to ________% computed on a 360 day basis and payable
monthly over the Base Rate (as defined herein), each change
in such fluctuating interest rate to take effect
simultaneously with the corresponding change in the Base
Rate, but in no event in excess of the maximum interest rate
permitted by applicable law; provided, however, that it from
time to time the undersigned and the Lender mutually agree,
all or any portion of the unpaid principal amount of such
advances shall, for a term mutually agreeable to the
undersigned (the "Quoted Rate"). Promptly after the
undersigned and the Lender so mutually agree on the Quoted
Rate and the term therefor, the Lender shall send to the
undersigned a written confirmation of such Quoted Rate, the
term thereof, and the unpaid principal amount subject
thereto, which confirmation shall be conclusive and binding
for all purposes, provided, that after any such mutually
agreed term expires, such unpaid principal amount shall bear
interest at the Stated Rate. The duration of any term used
in connection with a Quoted Rate shall in no way affect the
Lender's right to demand payment hereunder at any time;
provided, however, that unless the Lender shall have made a
demand hereunder for payment, the undersigned shall have no
right to prepay any unpaid principal amount bearing interest
at a Quoted Rate prior to the last day of the term thereof.
The undersigned further agrees to pay interest on any amount
of principal which is not paid when due, from the date on
which such amount is due until such amount is paid in full,
payable on demand, at a rate per annum (in lieu of the
Stated Rate or the Quoted Rate in effect at such time) equal
at all times to _____% per annum above the Stated Rate. All
advances made by the Lender to the undersigned and all
payments made on account of the principal hereof shall be
recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached herein.
<PAGE>
I. As collateral security for the payment of (i) the
indebtedness evidenced by this Note or by any note or notes
which may be given in renewal or extension of all or any
part of such indebtedness (each of which being an "Other
Note"), and (ii) any and all other obligations and/or
liabilities, direct or contingent, of the undersigned to the
Lender, due or to become due, whether now existing or
hereafter arising (the indebtedness evidenced hereby, by any
Other Note, and any and all such other obligations and
liabilities being hereinafter referred to as the
"Obligations"), the undersigned hereby grants and transfers
to the Lender a lien upon and a security interest in any and
all property (together with the proceeds thereof) in which
the undersigned at any time has rights and which at any time
has been delivered, transferred, pledged, mortgaged or
assigned to, or deposited in or credited to an account with,
the Lender or any third party(ies) acting in its behalf or
designated by it, or otherwise at any time is in the
possession or under the control or recorded on the books of
the Lender, or any third party(ies) acting in its behalf or
designated by it, whether expressly as collateral or for
safekeeping or for any other or different purpose, including
(without limitation) any property which may be in transit by
mail or carrier for any purpose, or covered or affected by
any documents in the Lender's possession or in the
possession of any such third party(ies), and in any and all
property in which the undersigned at any time has rights and
in which at any time a security interest has been
transferred to the Lender. The Lender may at its option and
at any time, with our without notice to the undersigned,
appropriate and apply to the payment or reduction, either in
whole or in part, of the amount owing on all or any of the
Obligations (whether or not then due) any and all moneys now
or hereafter with the Lender, on deposit or otherwise, to
the credit of or belonging to the undersigned. The Lender
shall not be obligated to assert or enforce any rights,
liens or security interest hereunder or to take any action
in reference thereto, and the Lender may in its discretion
at any time relinquish its rights hereunder as to particular
property, in each case without thereby affecting or
invalidating its rights hereunder as to all or any other
property securing or purporting to secure the Obligations.
<PAGE>
II. Furthermore, the undersigned agrees that: (a) in
the event of any new or additional certificates of stock
being issued (as stock dividends or otherwise) relative to
any stock held by the Lender at the time as security
hereunder, or in the event of any additional shares of such
stock being issued in uncertificated form, such certificates
or shares shall be deemed an increment to the stock so held
and under pledge to the Lender and that, therefore, such
certificates or shares will, to the extent received by,
issued or transferred to or placed under the control of the
undersigned, be held or controlled in trust for the Lender
and such certificates or shares, or a security interest
therein, will be promptly delivered or transferred to the
Lender (in form for transfer) to be held hereunder; (b)
should the aggregate market value of all property held as
security hereunder at any time suffer any decline or should
any such property be deemed by the Lender to be
unsatisfactory or inadequate, the undersigned will forthwith
upon request deliver or transfer to the Lender additional
property or a security interest therein or will make one or
more prepayments of this Note, in each case to the
satisfaction of the Lender; (c) the Lender shall exercise
reasonable care in the custody of any property upon or in
which a lien and security interest has been created
hereunder at any time but shall be deemed to have exercised
reasonable care if such property is accorded treatment
substantially equal to that which the Lender accords its own
property, or if the Lender takes such actions with respect
to the property as the undersigned shall reasonably request
in writing, but no failure to comply with any such request
nor any omission to do any such act requested by the
undersigned shall be deemed a failure to exercise reasonable
care, nor shall any failure of the Lender to take necessary
steps to preserve rights against any parties with respect to
any property in its possession be deemed a failure to
exercise reasonable care; and (d) the Lender may, in its
discretion and in the absence of other express instructions
in writing, apply any amounts which may be paid to and/or
received or held by it relative hereto at any time to the
payment or reduction either in whole or in part, of the
principal and/or interest (as the Lender may elect) then
owing on all or any of the Obligations.
<PAGE>
III. Upon the non-payment of any of the Obligations
when due, and, in the case of Obligations evidenced hereby
or other Obligations payable on demand, when payment is
demanded, the Lender shall have all of the rights and
remedies provided to a secured party by the Uniform
Commercial Code in effect in New York State at that time
and, in addition thereto, the undersigned further agrees
that (1) in the event that notice is necessary, written
notice mailed to the undersigned at the address given below
three business days prior to the date of public sale of the
property subject to the lien and security interest created
herein or prior to the date after which private sale or any
other disposition of said property will be made shall
constitute reasonable notice, but notice given in any other
reasonable manner or at any other reasonable time shall be
sufficient, (2) in the event of sale or other disposition of
such property, the Lender may apply the proceeds of any such
sale or disposition to the satisfaction of its reasonable
attorney's fees, legal expenses and other costs and expenses
incurred in connection with its retaking, holding, preparing
for sale, and selling of the property, and (3) without
precluding any other methods of sale, the sale of property
shall have been made in a commercially reasonable manner if
conducted in conformity with reasonable commercial practices
of banks disposing of similar property, but in any event the
Lender may sell on such terms as it may choose, without
assuming any credit risk and without any obligation to
advertise.
IV. The word "property" as used herein includes goods
and merchandise together with the proceeds thereof, as well
as any and all documents relative thereto; also funds, cash
credit balances, securities (including certificated,
uncertificated, and book-entry securities), choses in action
and any and all other forms of property, together with the
proceeds thereof, whether real, personal or mixed, and any
right, title or interest of the undersigned therein or
thereto.
V. "Base Rate", as used herein, means a fluctuating
interest rate per annum which shall at all times be equal to
the higher of (a) the rate of interest announced publicly by
________________ (hereinafter referred to as the "Bank") in
New York, New York, from time to time, as the Bank's base
rate; or (b) the sum (adjusted to the nearest 1/4 of one
percent or, if there is no nearest 1/4 of one percent, to
the next higher 1/4 of one percent) of (i) 1/2 of one
percent per annum, plus (ii) the rate per annum obtained by
dividing (A) the latest three-week moving average of
secondary market morning offering rates in the United
States for three-month certificates of deposit of major
United States money market banks, such three-week moving
average being determined weekly on each Monday (of, if
any such day is not a Business Day (as defined below),
on the next succeeding Business Day) for the three-week
period ending on the previous Friday by the Bank on the
basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank
of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates
received by the Bank from three New York certificate of
deposit dealers of recognized standing selected by the Bank,
by (B) a percentage equal to 100% minus the average of the
daily percentages specified during such three-week period by
<PAGE>
the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental
or other marginal reserve requirement) for the Bank in
respect of liabilities consisting of or including (among
other liabilities) three-month U.S. dollar nonpersonal time
deposits in the United States, plus (iii) the average during
such three-week period of the annual assessment rates
estimated by the Bank for determining the then current
annual assessment payable by the Bank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S.
dollar deposits of the Bank in the United States. "Business
Day", as used above, means a day of the year on which banks
are not required or authorized to close in New York City.
VI. The undersigned agrees to pay on demand all costs
and expenses in connection with the preparation, execution,
delivery, administration, modification, amendment and
enforcement (whether through legal proceedings, negotiations
or otherwise) of this Note and any other document to be
delivered hereunder (such costs and expenses shall include,
without limitation, the reasonable fees and expenses of
legal counsel). The undersigned agrees to indemnify and
hold harmless the Lender and each of its directors,
officers, employees, agents, affiliates and advisors from
and against any and all claims, damages, losses, liabilities
and expenses (including, without limitation, fees and
disbursements of counsel) which may be incurred by or
asserted against the Lender or any such director, officer,
employee, agent, affiliate or advisor in connection with or
arising out of any investigation, litigation or proceeding
related to or arising out of this Note or any other document
to be delivered hereunder or any transaction contemplated
hereby or thereby (but in any case excluding any such
claims, damages, losses, liabilities or expenses incurred by
reason of the gross negligence or willful misconduct of the
Indemnitee). The obligations of the undersigned under this
Paragraph VI shall survive the payment in full of this Note.
VII. The Lender and the Bank are hereby authorized, at
their option and without any obligation to do so, to
transfer to or register in the name of its nominee(s),
including any Clearing Corporation or Custodian Bank, as
defined in the Uniform Commercial Code in effect from time
to time in New York State, and any nominee(s) thereof all or
any part of the property referred to hereinabove, and to do
so before or after the maturity of any of the Obligations,
and with or without notice to the undersigned.
VIII. The Lender may assign to one or more banks or
other entities all or a portion of its rights under this
Note. In the event of an assignment of all of its rights,
the Lender may transfer this Note to the assignee. In the
event of an assignment of a portion of its rights under this
Note, the Lender shall deliver to the undersigned a new note
to the order of the assignee in an amount equal to the
principal amount assigned to the assignee and a new note to
the order of the Lender in an amount equal to the principal
amount retained by the Lender (collectively, the "New
Notes"). Such New Notes shall be in an aggregate principal
<PAGE>
amount equal to the principal amount of this Note, shall be
dated the effective date of the assignment and otherwise
shall be substantially identical to this Note. Upon receipt
of the New Notes from the Lender, the undersigned shall
execute such New Notes and, at the expense of the
undersigned, promptly delivery such New Notes to the Lender.
Upon receipt of the executed New Notes from the undersigned,
the Lender shall return this Note to the undersigned. The
Lender and the assignee shall make all appropriate
adjustments in payments under this Note for periods prior to
such effective date directly between themselves. In the
event of an assignment of all or any portion of its rights
hereunder, the Lender may transfer and deliver all or any of
the property then held by it as security hereunder and the
assignee shall thereupon become vested with all the powers
and rights herein given to the Lender with respect thereto.
After any such assignment or transfer, the Lender shall be
forever relieved and fully discharged from any liability or
responsibility in the matter, and the Lender shall retain
all rights and powers hereby given with respect to property
not so transferred. The Lender may sell participations to
one or more banks or other entities in or to all or a
portion of its rights under this Note; provided, however,
that the Lender shall remain the holder of this Note and
accordingly the undersigned shall continue to deal solely
and directly with the Lender in connection with the Lender's
rights under this Note. The Lender may, in connection with
any assignment or participation or proposed assignment or
proposed participation, disclose to the assignee or
participant or proposed assignee or proposed participant
any information relating to the undersigned furnished to the
Lender by or on behalf of the undersigned; provided that,
prior to any such disclosure, the assignee or participant
shall agree to preserve the confidentiality of any
confidential information related to the undersigned received
by it from the Lender.
IX. The word "undersigned" wherever used herein shall
be construed to refer separately to each of us and
collectively to any two or more of us, and this Note shall
not be revoked or impaired as to any one or more of us by
the revocation or release of any obligations hereunder of
any other(s) of us.
X. The undersigned hereby waives presentment for
payment, demand, notice of dishonor and protest of this Note
and further agrees that this Note shall be deemed to have
been made under and shall be governed by the laws of the
State of New York in all respects, including matters of
construction, validity and performance, except with respect
to interest rate, which shall be governed by applicable law,
and that none of its terms or provisions may be waived,
altered, modified or amended except as the Lender may
consent thereto in writing duly signed for and on its
behalf.
<PAGE>
XI. The Lender is authorized, at its option, to file
Financing Statement(s) without the signature of the
undersigned with respect to any of the above described
property; the undersigned agrees to pay the cost of any such
filing, and to sign upon request any instruments, documents,
or other papers which the Lender may require to perfect its
security interest in the property.
XII. Without limiting the right of the Lender to bring
any action or proceeding against the undersigned or against
property of the undersigned arising out of or relating to
any Obligation or this Note (an "Action") in the courts of
other jurisdictions, the undersigned hereby irrevocably
submits to the jurisdiction of any New York State or Federal
court sitting in New York City, and the undersigned hereby
irrevocably agrees that any Action may be heard and
determined in such New York State court or in such Federal
court. The undersigned hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of any Action in any
jurisdiction. The undersigned hereby irrevocably agrees
that the summons and complaint or any other process in any
Action in any jurisdiction may be served by mailing to any
of the addresses set forth below or by hand delivery to a
person of suitable age and discretion at any of the
addresses set forth below. Such service will be complete on
the date such process is so mailed or delivered, and the
undersigned will have thirty days from such completion of
service in which to respond in the manner provided by law.
The undersigned may also be served in any other manner
permitted by law, in which event the undersigned's time to
respond shall be the time provided by law.
XIII. Both the undersigned and the Lender hereby
irrevocably waive all right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to any
Obligation or this Note.
XIV. - XX. (See attached Rider.)
____________________ ____________________
Name of Borrower Name of Borrower
____________________ ____________________
Signature Signature
____________________ ____________________
Address Address
<PAGE>
Advances and Payments of Principal and Interest
<TABLE>
<CAPTION>
Amount of Advance and,
if Advance or portion
thereof bears interest
at the Quoted Rate, the UNPAID
amount thereof, the AMOUNT OF PRINCIPAL
Quoted Rate and Term PRINCIPAL PAID AMOUNT OF BALANCE OF NOTATION
DATE therefor OR PREPAID INTEREST PAID ADVANCES MADE BY
- -------- ------------------------ -------------- ------------- ---------- --------
<S> <C> <C> <C> <C> <C>
- -------- ------------------------ -------------- ------------- ---------- --------
- -------- ------------------------ -------------- ------------- ---------- --------
- -------- ------------------------ -------------- ------------- ---------- --------
- -------- ------------------------ -------------- ------------- ---------- --------
</TABLE>
FOR VALUE RECEIVED, the undersigned hereby (jointly and
severally) unconditionally guarantee(s) unto the payee
and/or any subsequent owner or holder of the Note (the
"Note"), the punctual payment when due of all amounts
payable under the Note, and any and all Indebtedness
evidenced thereby, in accordance with the terms and
conditions thereof. Notice of the acceptance hereof, and
promptness in making any demand hereunder for the payment,
or in giving notice of any default in the payment, of all or
any part of said indebtedness, are hereby waived. In the
event this Guaranty is referred to an attorney for
collection, the undersigned further agrees to pay an
attorney's fee equal to 15 percent of the full amount due
hereunder, plus court costs and disbursements.
The liability of the undersigned under this Guaranty
shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of the
Note or any other agreement or instrument relating
thereto;
(ii) any change in the time, manner or place of
payment of, or in any other term of, the Note, or
any other amendment or waiver of, or any consent
to departure from, the Note;
(iii) any exchange, release or non-perfection
of any collateral, or any release or amendment or
waiver of or consent to departure from any other
guaranty of the Note; or
(iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge
of, the borrower (or any of them under the Note)
or a guarantor.
<PAGE>
Without limiting the right of the Lender to bring any
action or proceeding against the undersigned or against
property of the undersigned arising out of or relating to
the Note, this Guaranty or any Indebtedness evidenced
thereby, respectively (an "Action"), in the courts of other
jurisdictions, the undersigned hereby irrevocably submits to
the jurisdiction of any New York State or Federal court
sitting in New York City, and the undersigned hereby
irrevocably agrees that any Action may be heard and
determined in such New York State court or in such Federal
court. The undersigned hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of any action in any
jurisdiction. The undersigned hereby irrevocably agrees
that the summons and complaint or any other process in any
Action in any jurisdiction may be served by mailing to any
of the addresses set forth below or by hand delivery to a
person of suitable age and discretion at any of the
addresses set forth below. Such service will be complete on
the date such process is so mailed or delivered, and the
undersigned will have thirty days from such completion of
service in which to respond in the manner provided by law.
The undersigned may also be served in any other manner
permitted by law, in which event the undersigned's time to
respond shall be the time provided by law.
Both the undersigned and the Lender hereby irrevocably
waive all right to trial by jury in any action, proceeding
or counterclaim arising out of or relating to any Obligation
or this Guaranty.
Dated: _______________________ Dated: ___________________
Guarantors:
______________________________ __________________________
Name Name
______________________________ __________________________
Signature Signature
______________________________ __________________________
Address Address
<PAGE>
RIDER TO DEMAND NOTE DATED ________________
XIV. This Note does not constitute a commitment to
lend, and the Lender expressly reserves the right to demand
payment of outstanding advances under this Note at any time
upon sixty (60) days prior written notice to the undersigned
of termination of the line of credit evidenced by this Note,
on which date all outstanding advances hereunder, accrued
interest thereon and all other related liabilities of the
undersigned to the Lender shall be due and payable in full.
The Lender reserves the right not to make any further
advances under this Note during said 60-day notice period.
The undersigned shall comply fully with all other
obligations under this Note (including the payment of
periodic interest when due) and related documents and
instruments during said 60-day period.
XV. Notwithstanding the foregoing Paragraph XIV, the
Lender reserves the right to demand payment in full of all
obligations under this Note, and to terminate the line of
credit evidenced hereby, pursuant to written notice to the
undersigned at any time after the occurrence of (a) any
breach or default under any term, covenant, condition,
representation or warranty by the undersigned or the
_______________under this Note or any Security Agreement,
Hypothecation Agreement (Third Party), Certificate or other
document or instrument executed and delivered to the
Lender in connection with the establishment of the line
of credit evidenced by this Note, or (b) any breach or
default by _____________________ under the_________________
line of credit established contemporaneously with the line
of credit evidenced by this Note (or under any other
obligation from time to time incurred by _______________
in favor of the Lender, the Bank or any affiliate.)
XVI. Without limiting the general right of Lender to
demand payment hereunder, the undersigned promises
immediately to repay indebtedness hereunder to the extent
necessary to eliminate any excess of outstanding principal
over the then borrowing base as determined by Lender, all in
accordance with the provisions of the Security Agreement
dated ________________________, executed in connection with
this Note by the ______________________.
XVII. Without limiting any provision of this Note, the
undersigned shall compensate the Lender, upon written
request by the Lender, for all losses, expenses and
liabilities (including, without limitation, any loss or
expense arising rom the re-employment of funds by the
Lender) that Lender may sustain if any payment or repayment
(whether upon demand or otherwise) of any advance under this
Note bearing interest at a Quoted Rate is made prior to the
rate period therefor agreed upon by the undersigned and the
Lender. The determination of such amount by the Lender
shall be conclusive and binding in all matters in the
absence of manifest error. This covenant shall survive the
payment of outstanding advances under this Note.
<PAGE>
XVIII. The undersigned further agrees that, with
respect to amounts evidenced hereby bearing interest at a
Quoted Rate, if, due to either (i) the introduction of any
change (including, without limitation, any change by way of
imposition or increase of reserve, special deposit or
similar requirements or any increase in the amount of
capital required or expected to be maintained by the Lender)
in or in the interpretation of any law or regulation, or
(ii) the compliance by the Bank with any guideline or
request from any central bank or other governmental
authority (whether or not having the force of law), there
shall be any increase in the cost to the Lender of agreeing
to make or making, funding or maintaining advances under the
Quoted Rate, then the undersigned shall, upon demand by the
Lender, pay to the Lender additional amounts sufficient to
reimburse the Lender for such increased cost. Each
notification delivered to the undersigned by the Lender as
to the amount of any such cost shall be conclusive as to the
amount thereof. It shall be assumed, for purposes of
computing any such cost to the Lender, that the making,
funding and maintaining of advances under this Note by the
Lender which bear interest at a Quoted Rate have been made
by the Bank.
XIX. All advances under this Note may be requested by
and made to or for the account of the undersigned. All such
advances shall be used for general working capital purposes,
including investments other than purchase or carrying of
margin stock as defined in Regulation U of the Federal
Reserve Board.
XX. The undersigned, as well as the _______________,
shall provide to the Lender (a) personal financial
statements (including income statement and balance sheet),
prepared as of year-end, not later than 120 days following
the end of each calendar year, and (b) a copy of each
federal income tax return not later than 90 days from the
date of filing. The foregoing financial statements shall be
certified as true and correct by the person or entity
covered thereby, shall be prepared on a basis consistent
with the financial statements heretofore provided to the
Lender, and shall be accompanied by such additional
information and detail as the Lender may from time to time
request.
_____________________________
<PAGE>
EXHIBIT A TO 7.1
----------------
Date: ___________________
SECURITY AGREEMENT
Gentlemen:
_________________________ (the "Borrower") has applied for a
$_________________________ (_______________________________)
line of credit from ___________________________ (the
"Lender"). This line of credit is to be secured by
investment assets held in Custody Account No. _____
and Active Portfolio Account Nos. _________________ in the
name of the ____________ dated _____________________ (the
"Accounts") with _______________________ (the "Depository").
In consideration of the extension of the line of credit to
the Borrower, the undersigned hereby grants a security
interest to the Lender, its successors and assigns, in all
of the right, title and interest of the undersigned in and
to the Accounts and all securities, instruments, cash and
other assets therein, together with all monies, proceeds or
sums due or to become due thereon or therefrom by way of
interest, dividend, bonus, redemption, repurchase, repayment
or otherwise and all certificates, instruments or
investments contained in or evidenced by such Accounts (the
"Collateral"). The undersigned acknowledges that all or a
portion of the Collateral may also be registered or held
from time to time by or in the name of _________________, or
its respective affiliates, and that any such entity shall
for those purposes be acting as the bailee and agent of the
Lender for possession of the Collateral and the perfection
of the Lender's security interest therein.
The undersigned represents and warrants that it has not made
and will not make any assignment or transfer of, and has not
placed and will not place any encumbrance of any kind on,
the Collateral other than in favor of the Lender. The
undersigned hereby incorporates by reference the provisions
of the Hypothecation Agreement (Third Party) dated _________
given by the undersigned to the Lender (as it may be amended
from time to time, (the "Hypothecation Agreement (Third
Party)") and the terms of such Hypothecation Agreement
(Third Party) shall be applicable to the terms of the
security interest granted by this Security Agreement. This
Security Agreement is made by the undersigned as collateral
security for (collectively the "Indebtedness") (i) the line
of credit and (ii) all other Indebtedness, obligations or
liabilities of any kind of the Borrower to the Lender and
any of its affiliates, now or hereafter existing, arising
directly between the Borrower and the Lender and any of its
affiliates or acquired from another by the Lender and any
of its affiliates.
In the event of default (i) in the due payment of any of the
Indebtedness or otherwise under the Demand Note (referred to
below) evidencing the line of credit or (ii) under this
Security Agreement or the Hypothecation Agreement (Third
Party), the undersigned hereby irrevocably authorizes and
empowers the Lender at its option, at any time, and from
time to time, for its own use and benefit, either in its own
name or in the name of the undersigned (i) to demand,
<PAGE>
collect and receive payment of any and all monies or
proceeds due or to become due under the Collateral or any
part thereof, (ii) to execute any and all instruments
required for the withdrawal or repayment of all or any part
of the Collateral, (iii) to complete in any respect any
instrument for the withdrawal or repayment of funds signed
by the undersigned, (iv) to sell assets in the Accounts, at
times and in any order as the Lender in its sole discretion
may elect, and apply such proceeds or other cash in the
Accounts in whole or partial payment of the Indebtedness,
(v) to in all respects deal with and control said Accounts
and/or the Collateral as the holder thereof, and (vi) to
exercise other rights or remedies under the Hypothecation
Agreement (Third Party) or applicable law, and the
undersigned hereby irrevocably constitutes and appoints the
Lender as the attorney of the undersigned to do any and all
of the aforesaid.
"Loan Value" is defined herein as a percentage of the
current market value of assets acceptable to the Lender in
Custody Account No. ___________ as follows:
<TABLE>
<CAPTION>
<S> <C>
Cash 100%
U.S. Government Obligations 90%
State and Municipal Obligations 80%
Corporate Debt Obligations (AAA-AA rated) 80%
Corporate Debt Obligations (A-BAA rated) 75%
New York Stock Exchange listed securities 70%
American Stock Exchange listed securities 60%
NASDAQ listed Securities 50%
Foreign Stocks 50%
</TABLE>
Without in any manner limiting the Lender's rights under the
Demand Note (Multiple Advances) dated _____________ by the
Borrower in the original principal amount of $______________
(the "Demand Note"), this Security Agreement and the
Hypothecation Agreement (Third Party), the undersigned
acknowledges that should the outstanding amount of all
advances made by the Lender to the Borrower under the Demand
Note exceed at any time the "Loan Value" of Custody Account
No. ____ as listed above plus 70% of the market value of the
Active Portfolio Account Nos._________, then the undersigned
shall, within two business days of such occurrence, and
without further notice, either (i) pay to the Lender the
entire amount of such excess or (ii) deposit such additional
collateral acceptable to the Lender into the Accounts as may
be required, after giving effect to the advance ratios set
forth above, to eliminate such excess. Should the
undersigned fail to eliminate such excess, the Lender may
immediately, and without further notice, sell and otherwise
dispose of all or any portion of such Collateral and
exercise other rights and remedies referred to above. Lender
shall be free to proceed against all or any part of the
Collateral, in any order or sequence, at Lender's sole
discretion, without any obligation to marshal or apportion
such recourse in any manner.
<PAGE>
Lender reserves the right to exclude assets from the
collateral pool (but only for purposes of determining the
available borrowing base under the Demand Note pursuant to
the preceding paragraph, and not by way of limitation on
Lender's security interests hereunder) at its sole
discretion. An original counterpart of this Security
Agreement may be delivered by the Lender to the Depository,
and the undersigned hereby instructs the Depository not to
release or terminate the Accounts or to permit withdrawals
therefrom or changes in the specific assets therein which
would cause the outstanding principal under the Demand Note
to exceed said Loan Value of Custody Account No._____ plus
70% of the market value of Active Portfolio Account Nos.___.
The Depository shall be entitled to rely conclusively upon
any notice from the Lender as to the existence and status
of any Indebtedness.
This Security Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
The Depository is currently acting as the custodian only,
and not investment advisor, in connection with the assets in
Custody Account No. __________. However, should at any time
the Depository act in the capacity of investment advisor,
the undersigned understands that the investment advice which
the undersigned receives, and may continue to receive, from
the Depository is not dependent on the Borrower borrowing
from the Lender and that the Borrower is free to seek funds
from other sources so long as any such borrowings are not in
violation of any then outstanding agreement with the Lender.
The Depository is acting as the investment advisor in
connection with the assets in Active Portfolio Account
Nos. __________. The undersigned understands that the
investment advice (and the discretionary investment
decisions made by the Depository in connection therewith)
which the undersigned receives, and may continue to receive,
from the Depository is not dependent on the Borrower
borrowing from the Lender and that the Borrower is free to
seek funds from other sources so long as any such borrowings
are not in violation of any then outstanding agreement with
the Lender.
<PAGE>
Pursuant to a separate Continuing Guaranty executed
concurrently herewith, the undersigned will be responsible
for repayment of Borrower's indebtedness to the Lender under
the terms of the Demand Note or other notes or other
agreements which evidence such Indebtedness, and the
responsibilities of the undersigned for repayment will not
be dependent upon the performance of the investment assets
in the Accounts. The undersigned further understands that
the Depository is in all cases to follow the instructions of
the Lender rather than the undersigned if there is a
conflict in instructions. The undersigned acknowledges
receipt of a copy of Memoranda from the Depository to Lender
respecting reporting requirements and other limitations
concerning the Accounts and confirms its agreement
therewith.
Very truly yours,
By: _____________________________
cc:
<PAGE>
EXHIBIT B TO 7.1
----------------
Note: All blanks herein to be filled in before signing.
- -----------------------------------------------------------
HYPOTHECATION AGREEMENT
(Third Party)
Commercial Transactions
Not To Be Used For Consumer Transactions Date_______, 19__
- ---------------------------------------
(Office or Branch)
For and in consideration of any existing indebtedness or
other liability of:
- ------------------------------------------------------------
(Complete Name)
- ------------------------------------------------------------
(Address)
(hereinafter called the "Borrower") to you and/or in order
to induce you, acting in your discretion in each instance,
to make loans or otherwise to give, grant or extend credit
at any time(s) to the Borrower, the undersigned hereby
agrees and consents:
1. That, as security for any and all Indebtedness
and/or other liabilities of the Borrower to you, now or
hereafter existing and whether direct or contingent
(hereinafter referred to as the "Obligations"), you shall
have and are hereby given a lien upon and a security
interest in the following property and the proceeds thereof,
in all forms, owned by the undersigned and in due form for
transfer and all of which has been or is herewith deposited
with you (if necessary, list additional collateral being
pledged on a separate schedule);
Custody Account No.
and Active Portfolio Account Nos.
with _____________________
and you shall exercise reasonable care in the custody of any
property upon or in which a lien and security interest has
been crated hereunder at any time(s), but shall be deemed to
have exercised reasonable care if such property is accorded
treatment substantially equal to that which you accord your
own property, or if you take such action with respect to the
property as the undersigned shall reasonably request in
writing, but no failure to comply with any such request nor
any omission to do any such act requested by the undersigned
shall be deemed a failure to exercise reasonable care, nor
shall your failure to take necessary steps to preserve
rights against any parties with respect to any property in
its possession be deemed a failure to exercise reasonable
care, and to the extent that the aforesaid property may
<PAGE>
consist of capital stock, it is further agreed that, in
event of any new or additional certificate(s) of stock being
issued (as stock dividends or otherwise) relative to any
such capital stock, held at the time as security hereunder,
such certificate(s) shall be deemed an increment to the
stock so held and under pledge to you and that, therefore,
such certificate(s) will--to the extent received by or
placed under the control of the undersigned--be held or
controlled in trust for you and will be promptly delivered
to you (in form for transfer) to be held hereunder. With
reference to certificates of deposit which we maintain with
you and which certificates are in your possession from time
to time, such certificates or any extensions or renewals
thereof or substitutions therefor shall be subject to the
provisions of this Hypothecation Agreement.
II. That, in event of the happening of any one or more
of the following events, any one of which shall constitute
an event of default, to wit: (a) the non-payment to you when
due of all or any part of the Obligations; (b) the failure
of the Borrower to furnish satisfactory additional
collateral for, or to make payments on account of, the
Obligations in accordance with any agreement(s) heretofore
or hereafter made or entered into with you by the Borrower
or to perform or to comply with any of the other terms or
provisions of any such agreement(s); (c) the death, failure
in business, dissolution or termination of existence of the
Borrower; (d) any petition in bankruptcy being filed by or
against the Borrower, or any proceedings in bankruptcy, or
under any Acts of Congress relating to the relief of
debtors, being commenced for the relief or readjustment of
any indebtedness of the Borrower either through
reorganization, composition, extension or otherwise; (e) a
receiver of any property of the Borrower being appointed at
any time; (f) the Borrower making an assignment for the
benefit of creditors, or taking advantage of any insolvency
law; (g) any funds or other property of the Borrower which
may be in or come into your possession or control, or that
of any third party as agent or pledgeholder for you, being
attached or distrained, or becoming subject to any mandatory
order of court or other legal process; and (h) any seizure,
vesting or intervention by or under authority of a
government, by which the management of the Borrower is
displaced or its authority in the conduct of its business is
curtailed-then, upon or at any time after the occurrence of
any such event of default you shall have all of the rights
and remedies provided to a secured party by the Uniform
Commercial Code in effect in New York State at that time
and, in addition thereto, the undersigned further agrees
that (1) in the event that notice is necessary, written
notice mailed to the undersigned at the address given below
three business days prior to the date of public sale of the
property subject to the lien and security interest created
herein or prior to the date after which private sale or any
other disposition of said property will be made shall
constitute reasonable notice, but notice given in any other
reasonable manner or at any other reasonable time shall be
sufficient, (2) in the event of sale or other disposition of
such property, you may apply the proceeds of any such sale
or disposition to the satisfaction of your reasonable
attorney's fees, legal expenses and other costs and expenses
<PAGE>
incurred in connection with your retaking, holding,
preparing for sale, and selling of the property, and (3)
without precluding any other methods of sale, the sale of
property shall have been made in a commercially reasonable
manner if conducted in conformity with reasonable commercial
practices of banks disposing of similar property, but in any
event, you may sell on such terms as you may choose, without
assuming any credit risk and without any obligations to
advertise.
III. That you may at any time(s), acting in each
instance in your discretion: (1) extend or change the time
of payment and/or the manner, place or terms of payment of
all or any of the Obligations; (2) exchange, release and/or
surrender all or any of the collateral security, by
whomsoever deposited, which is now or may hereafter be held
by you in connection with the Obligations; (3) sell and/or
purchase all or any such collateral security and dispose of
the proceeds thereof, as the owner(s) thereof have
authorized or may authorize, and (4) settle or compromise
with the Borrower, and/or any other party(ies) liable
thereon, all or any of the Obligations, and/or subordinate
the payment of all or any part(s) of the same, to the
payment of any other debts or claims which may be due or
owing at any time(s) to you and/or any other party(ies)--all
in such manner and upon such terms as you may deem proper,
and without notice to or further assent from the
undersigned, who hereby agrees that the lien, security
interest, options and other rights hereby given you shall
remain unimpaired and unprejudiced by any such action(s) on
your part.
IV. That you may, at your option and without any
obligation to do so, transfer to or register in the name of
your nominee(s) including any "clearing corporation" or
"custodian bank" as defined in the Uniform Commercial Code
in effect in New York State and any nominee(s) thereof all
or any part of property in which you may have a security
interest hereunder at any time, and to do so before or after
the maturity of all or any part of the Obligations, and with
or without notice to the undersigned.
V. That you may assign or transfer this agreement, or
any instrument evidencing all or any part of the
Obligations, and you may deliver all or any of the property
then held as security hereunder to the transferee(s), who
shall thereupon become vested with all the powers and rights
in respect thereto given to you hereby, and you shall
thereafter be forever relieved and fully discharged from any
liability or responsibility with respect thereto, but you
shall retain all rights and powers hereby given with respect
to any and all instruments, rights or property not so
transferred.
<PAGE>
VI. That you may not release or surrender at any
-----------
time(s) all or any of the property in which you may have a
security interest hereunder at any time, together with any
substitution(s) therefor and/or any addition(s) thereto
and/or any proceeds thereof, to or upon the order of the
Borrower.
VII. That this is a continuing agreement and, unless
terminated as regards the undersigned by operation of law,
shall remain in full force and effect and be binding upon
the undersigned, and the legal representatives, successors
or assigns of the undersigned, until receipt by you of
written notice from the undersigned, or from any legal
representative, successor or assign of the undersigned, that
it has been terminated or revoked with respect to any
indebtedness or obligations of the Borrower which might
thereafter be incurred. Notwithstanding any such
termination or revocation, any and all property in which you
may then have a security interest hereunder shall continue
as security for the Obligations to the extent by which it
may have been theretofore incurred and be outstanding as of
the date of the receipt by you of such notice in all
respects as if this agreement had been continued in full
force and effect. That, if this agreement should be
terminated or revoked by operation of law as regards the
undersigned, the undersigned will indemnify and save you,
your successors and assigns, harmless from any loss which
might be suffered or incurred by you or them in making,
giving, granting or extending any loan(s) or other credit,
or otherwise acting hereunder, prior to the receipt by you
of a notice in writing from or in behalf of the undersigned
of such termination or revocation.
VIII. That this agreement shall be deemed to be
made under and shall be governed by the laws of the State of
New York in all respects, including matter of construction,
validity and performance, and it is understood and agreed
that none of its terms or provisions may be waived, altered,
modified or amended except as you may consent thereto in
writing duly signed for and on your behalf.
IX. Both of us, the Bank and the undersigned, hereby
waive the right to a trial by jury in any action, proceeding
or counterclaim arising or relating to this Agreement.
Signature Verified:
By:
______________________ ________________________________
________________________________
Address:
________________________________
<PAGE>
EXHIBIT C TO 7.1
----------------
CONTINUING GUARANTY
NOT FOR CONSUMER TRANSACTIONS
________________________
(Date)
I. For and in consideration of any existing
indebtedness to you of _____________________________________
(Name and Address)
(hereinafter called the "Borrower"), for the payment of
which the undersigned is now obligated to you, either as
guarantor or otherwise, and/or to induce you, in your
discretion, at any time(s) hereafter, to make any loan(s) or
advance(s) or to extend credit in any other manner to, or at
the request or for the account of the Borrower, either with
or without security, and/or to purchase or discount any
notes, bills receivable, drafts, acceptances, checks or
other instruments or evidences of indebtedness upon which
the Borrower is or may become liable as maker, endorser,
acceptor, or otherwise (all liabilities and obligations of
the Borrower to you, now or hereafter existing, being
hereinafter referred to as "Obligations"), the undersigned
does hereby GUARANTEE the punctual payment at maturity to
you of each and all of the Obligations, together with
interest thereon and any and all expenses which may be
incurred by you in collecting all or any of the Obligations
and/or in enforcing any rights hereunder; provided, however,
that if and only if an amount of a designated currency is
here specified
- ------------------------------------------------------------
- ------------------------------------------------------------
(Indicate Amount and Country of which that Amount is Lawful
Currency)
- ---------------------------------- ($ __US________________),
then the liability of the undersigned hereunder shall not
exceed at any one time with respect to the aggregate
principal amount of Obligations, and irrespective of the
currency(ies) in which the Obligations are payable, the
amount of currency here specified.
<PAGE>
II. As implementing the foregoing, it is understood
and agreed that (i) the undersigned guarantees that the
Obligations will be paid to you strictly in accordance with
the terms and provisions of any agreement(s), express or
implied, which has (have) been or may hereafter be made or
entered into by the Borrower in reference thereto,
regardless of any law, regulation or decree, now or
hereafter in effect, which might in any manner affect any of
the terms or provisions of any such agreement(s) or your
rights with respect thereto as against the Borrower, or
cause or permit to be invoked any alteration in the time,
amount or manner of payment by the Borrower of any of the
Obligations, and (ii) in each instance when the Borrower
shall have agreed, relative to any one or more of the
Obligations, to pay or provide your Head Office or any of
your Branches or correspondents with any amount of money
that is other than that which is locally in common
circulation at the time as currency in the place where such
agreement is made, and such amount is not actually paid or
provided as and when agreed or within such time as you may
deem reasonable, the undersigned will, upon request and as
you may elect, either pay or provide the amount in the exact
currency and place as agreed by the Borrower or pay or
provide you in the City of New York with the equivalent of
the amount in U.S. dollars at your then prevailing rate for
sales of the kind of currency agreed to be paid or provided
for transfer by cable to a place where it is current.
III. As security for any and all liabilities of the
undersigned to you, now existing or hereafter arising
hereunder, or otherwise, you are hereby given the right to
retain, and you are hereby given a lien upon and a security
interest in any and all moneys or other property (i.e.,
goods and merchandise, as well as any and all documents
relative thereto; also, funds, securities, choses in action
and any and all other forms of property whether real,
personal or mixed, and any right, title or interest of the
undersigned therein or thereto), and/or the proceeds
thereof, which have/has been, or may hereafter be, deposited
or left with you (or with any third party acting on your
behalf) by or for the account or credit of the undersigned,
including (without limitation of the foregoing) that in
safekeeping or in which the undersigned may have any
interest. All remittances and property shall be deemed left
with you as soon as put in transit to you by mail or
carrier. In event of the happening of any one or more of
the following events, any one of which shall constitute an
event of default to wit: (a) the non-payment of any of the
Obligations; (b) the death, failure in business, dissolution
or termination of existence of the Borrower or the
<PAGE>
undersigned; (c) any petition in bankruptcy being filed by
or against the Borrower or the undersigned, or any
proceedings in bankruptcy, or under any laws or regulations
of any jurisdiction relating to the relief of debtors, being
commenced for the relief or readjustment of any indebtedness
of the Borrower or the undersigned, either through
reorganization, composition, extension or otherwise; (d) the
making by the Borrower or the undersigned of an assignment
for the benefit of creditors or the taking advantage by
either of the same of any insolvency law; (e) the
appointment of a receiver of any property of the Borrower or
the undersigned; (f) any seizure, vesting or intervention by
or under authority of a government, by which the management
of either the Borrower or the undersigned is displaced or
its authority in the conduct of its business is curtailed;
(g) the attachment or distraint of any funds or other
property of the Borrower or the undersigned which may be in,
or come into, your possession or under your control, or that
of any third party acting for you, or of the same becoming
subject at any time to any mandatory order of court or other
legal process--then, or at any time(s) after the happening
of any such event of default, any or all of the Obligations
shall, at your option, become (for the purposes of this
guaranty) immediately due and payable by the undersigned,
without demand or notice. Furthermore, upon the occurrence
of any such event of default you shall have all of the
rights and remedies provided to a secured party by the
Uniform Commercial Code in effect in New York State at that
time and, in addition thereto, the undersigned further
agrees that (1) in the event that notice is necessary,
written notice mailed to the undersigned at the address
given below three business days prior to the date of public
sale of the property subject to the lien and security
interest created herein or prior to the date after which
private sale or any other disposition of said property will
be made shall constitute reasonable notice, but notice given
in any other reasonable manner or at any other reasonable
time shall be sufficient, (2) in the event of sale or other
disposition of such property, you may apply the proceeds of
any such sale or disposition to the satisfaction of your
reasonable attorney's fees, legal expenses and other costs
and expenses incurred in connection with your retaking,
holding, preparing for sale, and selling of the property,
and (3) without precluding any other methods of sale, the
sale of property shall have been made in a commercially
reasonable manner if conducted in conformity with reasonable
commercial practices of banks disposing of similar property,
but in any event, you may sell at your option on such terms
as you may choose without assuming any credit risk and
without any obligation to advertise.
<PAGE>
IV. The undersigned hereby consents and agrees that
you may at any time, or from time to time, in your
discretion: (1) extend or change the time of payment, and/or
the manner, place or terms of payment of all or any of the
Obligations; (2) exchange, release and/or surrender all or
any of the collateral security, or any part(s) thereof, by
whomsoever deposited, which is now or may hereafter be held
by you in connection with all or any of the Obligations; (3)
sell and/or purchase all or any such collateral at public or
private sale, or at any broker's board, and after deducting
all costs and expenses of every kind for collection, sale or
delivery, the net proceeds of any such sale(s) may be
applied by you upon all or any of the Obligations, and (4)
settle or compromise with the Borrower, and/or any other
person(s) liable thereon, any and all of the Obligations,
and/or subordinate the payment of same, or any part(s)
thereof, to the payment of any other debts or claims, which
may at any time(s) be due or owing to you and/or any other
person(s) or corporation(s); all in such manner and upon
such terms as you may deem proper, and without notice to or
further assent from the undersigned, it being hereby agreed
that the undersigned shall be and remain bound upon this
guaranty, irrespective of the existence, value or condition
of any collateral, and notwithstanding any such change,
exchange, settlement, compromise, surrender, release, sale,
application, renewal or extension, and notwithstanding also
that the Obligations may at any time(s) exceed the aggregate
principal sum hereinabove prescribed.
V. The undersigned hereby waives notice of acceptance
of this guaranty, and also presentment, demand, protests and
notice of dishonor of any and all of the Obligations, and
promptness in commencing suit against any party thereto or
liable thereon, and/or in giving any notice to or of making
any claim or demand hereunder upon the undersigned. No act
or omission of any kind of your part in the premises shall
in any event affect or impair this guaranty, nor shall same
be affected by any change which may arise by reason of the
death of the undersigned, or of any partner(s) of the
undersigned, or of the Borrower, or of the accession to any
such partnership of any one or more new partners. The
undersigned further agrees that this Guaranty shall continue
to be effective or be reinstated, as the case may be, if at
any time payment, or any part thereof, of the principal of
or interest on any of the obligations is rescinded or must
otherwise be restored or returned by you upon the
insolvency, bankruptcy or reorganization of the Borrower, or
otherwise, all as though such payment has not been made.
<PAGE>
VI. This is a continuing guaranty and shall (i) remain
in full force and effect until written notice shall have
been received by you from the undersigned (or the successor
or legal representative of the undersigned) that it has been
revoked, but any such notice shall not release the
undersigned from any liability as to any Obligations which
may be held by you, or in which you may have any interest,
at the time of the receipt of such notice; (ii) be binding
upon the undersigned, the heirs, executors, administrators,
successors and assigns of the undersigned, and shall inure
to the benefit of, and be enforceable by you, your
successors, transferees and assigns, and (iii) be deemed to
have been made under and shall be governed by the laws of
the State of New York in all respects, including matter of
construction, validity and performance, and it is understood
and agreed that none of its terms or provisions may be
waived, altered, modified or amended except in writing duly
signed for and on your behalf.
VII. If this guaranty is executed by two or more
parties, they shall be severally liable hereunder, and the
word "undersigned" wherever used herein shall be construed
to refer to each of such parties separately, all in the same
manner and with the same effect as if each of them had
signed separate instruments; and in any such case this
guaranty shall not be revoked or impaired as to any one or
more of such parties by the death of any of the others or by
the revocation or release of any liabilities hereunder of
any one or more of such other parties.
VIII. Both the undersigned and the Bank hereby
waive all right to trial by jury in any action, proceeding
or counterclaim arising or relating to any Obligation or
this Guaranty.
By:
Signature: ___________________ Address: __________________
Signature: ___________________ Address: __________________
