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Exhibit 10.58
EXECUTION COPY
GUARANTEE
GUARANTEE dated as of April 4, 1997, made by XXX XXXXXX
COMPANIES, L.L.C., a Georgia limited liability company
("Guarantor"), in favor of Mill Creek Land, L.L.C., a Delaware
limited liability company (the "Company") and CORPORATE REALTY
CONSULTANTS, INC., a Delaware corporation (collectively, the
"Beneficiaries"), pursuant to the Limited Liability Company
Agreement dated as of the date hereof, between BUFORD
ACQUISITION COMPANY, L.L.C., a Georgia limited liability
company (the "Member"), and CORPORATE REALTY CONSULTANTS,
INC., as the same may be amended, supplemented or modified
from time to time (the "LLC Agreement").
WHEREAS, the parties to the LLC Agreement have entered into a
venture to acquire and develop certain land located in Gwinnett County, Georgia;
WHEREAS, pursuant to the LLC Agreement, the parties thereto have
agreed to make certain capital contributions to the Company as specified in
Article III of the LLC Agreement; and
WHEREAS, as an inducement to the parties to enter into the LLC
Agreement and as a requirement thereunder, each party thereof has agreed to have
certain affiliates guarantee certain of its capital obligations.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor hereto agrees as
follows:
1. Defined Terms. (a) Unless otherwise defined herein, capitalized
terms used in this Guarantee shall have the meanings assigned to them in the LLC
Agreement and the following terms have the following meanings:
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"Guarantee" means this Guarantee, as the same may be amended,
supplemented, waived or otherwise modified from time to time.
"Obligations" means the due and punctual payment and performance of
the obligations of the Member under Section 3.02(b) and 3.03(a) of the LLC
Agreement.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guarantee shall refer to this Guarantee as a
whole and not to any particular provision of this Guarantee, and section and
paragraph references are to this Guarantee unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guarantee. (a) Subject to the provisions of paragraph 2(b), the
Guarantor hereby unconditionally and irrevocably guarantees to the
Beneficiaries, for the benefit of the Beneficiaries and their respective
successors and assigns, the prompt and complete payment and performance by the
Member when due of the Obligations. Guarantor further agrees to pay any and all
expenses (including, without limitation, all reasonable fees and disbursements
of counsel) which may be reasonably paid or incurred by the Beneficiaries in
enforcing, or obtaining advice of counsel in respect of, any rights with respect
to, or collecting, any or all of the Obligations and/or enforcing any rights
with respect to, or collecting against, Guarantor under this Guarantee. This
Guarantee shall remain in full force and effect until the Obligations have been
satisfied or discharged in full.
(b) No payment or payments made by any Person other than the
Guarantor or received or collected by the Company from the Member, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of Guarantor hereunder which shall,
notwithstanding any such payment or payments, remain liable for the Obligations
up to the maximum liability of such Guarantor hereunder until the Obligations
have been satisfied or discharged in full.
3. Right of Set-Off. Upon the occurrence and during the continuance
of any failure of the Member to make
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a capital contribution as and when required pursuant to Section 3.02(b) of the
LLC Agreement, the Company is hereby irrevocably authorized at any time and from
time to time without notice to Guarantor, any such notice being expressly waived
by Guarantor to the extent permitted by applicable law, to set-off and
appropriate and apply any and all sums of money and other property at any time
held or owing by the Company to or for the credit or the account of Guarantor or
the Member, or any part thereof in such amounts as the Company may elect,
against and on account of the obligations and liabilities of Guarantor to the
Company hereunder, and claims of every nature and description of the Company
against Guarantor, whether arising hereunder, under the LLC Agreement, or
otherwise, as the Company shall elect, whether or not the Company has made any
demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Company shall notify Guarantor promptly of any such
set-off and the application made by the Company of the proceeds thereof;
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the Company under this Section are
in addition to other rights and remedies (which the Company may have under the
LLC Agreement).
4. Limits on Subrogation. Notwithstanding anything to the contrary
contained herein or in the LLC Agreement and notwithstanding any payment or
payments made by Guarantor hereunder or pursuant to the LLC Agreement or any
right of set-off of the Company against Guarantor, Guarantor shall not be
entitled to be subrogated to any of the rights of the Beneficiaries against the
Member or any collateral security or guarantee or right of offset held by any
Beneficiaries for the payment of the Obligations, nor shall Guarantor seek or be
entitled to seek any contribution or reimbursement from the Member in respect of
payments made by Guarantor hereunder or under the LLC Agreement, until all
amounts owing to the Company by the Member on account of the Obligations are
paid in full. If any amount shall be paid to Guarantor on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full, such amount shall be held by Guarantor in trust for the
Beneficiaries, segregated from other funds of Guarantor, and shall, forthwith
upon receipt by Guarantor, be turned over to the Company in the exact form
received by Guarantor (duly indorsed by Guarantor to the Company, if required),
to be applied against the Obligations.
5. Amendments, etc. With Respect to the Obligations, Waiver of
Rights. Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against Guarantor and without notice
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to or further assent by Guarantor, any demand for payment of any of the
Obligations made by the Company may be rescinded by the Company and any of the
Obligations continued, and the Obligations, or the liability of any other Person
upon or for any part thereof, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Company, and the LLC Agreements and any other
documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Company may
deem advisable from time to time. When making any demand hereunder against the
Guarantor, the Company may, but shall be under no obligation to, make a similar
demand on the Member, and any failure by the Company to make any such demand or
to collect any payments from the Member shall not relieve Guarantor of its
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Company against
Guarantor. For the purposes hereof, "demand" shall include the commencement and
continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional. Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof or reliance by the Beneficiaries upon this
Guarantee or acceptance of this Guarantee; the Obligations shall conclusively be
deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon this Guarantee; and all dealings between the
Member and the Guarantor, on the one hand, and the Beneficiaries, on the other
hand, likewise shall be conclusively presumed to have been had or consummated in
reliance upon this Guarantee. Guarantor waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon the Member or
the Guarantor with respect to the Obligations. Guarantor understands and agrees
that this Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or
enforceability of the LLC Agreement, (b) any defense, set-off or counterclaim
which may at any time be available to or be asserted by the Member against the
Company or (c) any other circumstance whatsoever (with or without notice to or
knowledge of the Member or Guarantor) which constitutes, or might be construed
to constitute, an equitable or legal discharge of the Member for the
Obligations, or of Guarantor under this Guarantee, in bankruptcy or in any other
instance. When pursuing its rights and remedies hereunder against Guarantor, the
Company may, but shall be under no obligation to, pursue such rights and
remedies as it may
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have against the Member or any other Person, and any failure by the Company to
pursue such other rights or remedies or to collect any payments from the Member
or any such other Person or shall not relieve Guarantor of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Company against
Guarantor.
7. Reinstatement. This Guarantee shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or returned
by the Beneficiaries upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Member or Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Member or Guarantor or any substantial part of its property, or
otherwise, all as though such payments had not been made.
8. Payments. Guarantor hereby agrees that payments hereunder will be
paid to the Company without set-off or counterclaim in U.S. Dollars at the
office of the Company.
9. Representations and Warranties. (a) Guarantor hereby represents
and warrants that:
(i) it is a limited liability company duly formed, validly existing
and in good standing under the laws of the jurisdiction of its formation
and has the power and authority and the legal right to own and operate its
property, to lease the property it operates and to conduct the business in
which it is currently engaged;
(ii) it has the power and authority and the legal right to execute
and deliver, and to perform its obligations under, this Guarantee, and has
taken all necessary action to authorize its execution, delivery and
performance of this Guarantee;
(iii) this Guarantee has been duly executed and delivered on behalf
of Guarantor and constitutes a legal, valid and binding obligation of
Guarantor enforceable against Guarantor in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting the enforcement of creditors' rights generally,
general equitable principles (whether enforcement is sought by proceedings
in equity or at
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law) and an implied covenant of good faith and fair dealing;
(iv) the execution, delivery and performance of this Guarantee will
not violate any provision of any requirement of law or contractual
obligation of Guarantor in any respect that, in the aggregate for all such
violations, could reasonably be expected to have a material adverse effect
on the Guarantor and will not result in or require the creation or
imposition of any lien on any of the properties or revenues of Guarantor
pursuant to any such requirement of law or contractual obligation of
Guarantor;
(v) no consent or authorization of, filing with, or other act by or
in respect of, any arbitrator or governmental authority and no consent of
any other Person (including, without limitation, any stockholder or
creditor of Guarantor) is required in connection with the execution,
delivery, performance, validity or enforceability of this Guarantee, other
than those which have been duly obtained or made and are in full force and
effect on the date of this agreement and except for those the absence of
which in the aggregate, could not reasonably be expected to have a
material adverse effect on the Guarantor;
(vi) no litigation, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the knowledge of
Guarantor, threatened by or against Guarantor or against any of its
properties or revenues (1) with respect to this Guarantee or any of the
transactions contemplated hereby by (2) which could reasonably be expected
to have a material adverse effect on the Guarantor.
10. Covenants; Further Assurances. Guarantor hereby covenants and
agrees with the Beneficiaries that, from and after the date of this Guarantee
until payment in full of the Obligations at any time and from time to time, upon
the written request of the Company, and at the sole expense of Guarantor,
Guarantor will promptly and fully execute and deliver such further instruments
and documents and take such further actions as the Company may reasonably
request for the purpose of obtaining or preserving the full benefits of this
Guarantee and of the rights and powers herein granted.
11. Notices. All notices, requests and demands to or upon the
Beneficiaries or Guarantor to be effective shall be in writing (or by telex, fax
or similar electronic
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transfer confirmed in writing) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made (1) when delivered by hand or
(2) if given by mail, three days after being deposited in the mails by certified
mail, return receipt requested, postage prepaid or (3) if by telex, fax or
similar electronic transfer, when sent and receipt has been confirmed, addressed
as follows:
(a) if to the Beneficiaries, at their address or transmission number
for notices provided in the LLC Agreement; and
(b) if to Guarantor, at its address or transmission number for
notices set forth under its signature below or to such other address as
may be hereafter notified by the respective parties hereto.
The Beneficiaries and Guarantor may change their address and
transmission numbers for notices by notice in the manner provided in this
Section.
Guarantor agrees that any notice delivered to the Beneficiaries
shall be deemed to be received by the Beneficiaries.
12. Counterparts. This Guarantee may be executed by counterpart, and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.
13. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14. Integration. This Guarantee represents the entire agreement of
Guarantor with respect to the subject matter hereof and there are no promises or
representations by Guarantor or the Beneficiaries relative to the subject matter
hereof not reflected or referred to herein.
15. Amendments in Writing; No Waiver, Cumulative Remedies. (a) None
of the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
Guarantor and the Beneficiaries; provided that any provision of this Guarantee
may be waived by the Beneficiaries in a
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letter or agreement executed by the Beneficiaries or by telex or facsimile
transmission from the Beneficiaries.
(b) The Beneficiaries shall not by any act (except by a written
instrument pursuant to paragraph 15(a) hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of the Beneficiaries any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Beneficiaries of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy which
the Beneficiaries would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
16. Section Headings. The section headings used in this Guarantee
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
17. Submission to Jurisdiction; Waivers. (a) Guarantor hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Guarantee to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of New York,
the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy
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thereof by registered or certified mail (or any substantially similar form
of mail), postage prepaid, to Guarantor at its address referred to in
Section 11 or at such other address of which the Beneficiaries shall have
been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service or process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction.
(b) Guarantor and the Beneficiaries hereby unconditionally and
irrevocably waive, to the maximum extent not prohibited by law, any right they
may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
18. Acknowledgments. Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Guarantee; and
(b) the Beneficiaries has no fiduciary relationship with or duty to
it or the Member arising out of or in connection with this Guarantee, and the
relationship between the Beneficiaries, on one hand, and the Guarantor and the
Member, on the other hand, in connection herewith is solely that of debtor and
creditor.
19. WAIVERS OF JURY TRIAL. GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS GUARANTEE AND FOR ANY COUNTERCLAIM THEREIN.
20. Successors and Assigns. This Guarantee shall be binding upon the
successors and assigns of Guarantor, shall inure to the benefit of the
Beneficiaries and its respective indorsees, transferees, successors and assigns.
The Guarantor may not assign, transfer or delegate any of its rights or
obligations under this Guarantee without the prior written consent of the
Beneficiaries.
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21. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF
NEW YORK.
22. No Third Party Beneficiaries. None of the provisions of this
Guarantee shall be for the benefit or enforceable by any creditor of the
Company. Except as expressly provided for herein, nothing in this Guarantee
shall be deemed to create any right in any Person not a party hereto, and this
instrument shall not be construed in any respect to be a contract in whole or in
part for the benefit of any third Person.
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IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
duly executed and delivered by its duly authorized officer as of the day and
year first above written.
XXX XXXXXX COMPANIES, L.L.C., as
GUARANTOR,
by /s/ Xxx Xxxxxx Companies, L.L.C.
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Name:
Title:
Address for Notices:
Xxx Xxxxxxx Xxxxx
000 X. Xxxxx Xxxxx Xx.
Xxxxx 000
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx, Xx., Esq.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
MILL CREEK LAND, L.L.C.,
by Corporate Realty Consultants,
Inc.,
by /s/ Corporate Realty Consultants, Inc.
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Name:
Title:
CORPORATE REALTY CONSULTANTS, INC.,
by /s/ Corporate Realty Consultants, Inc.
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Name:
Title:
