EXHIBIT 10(c)
GUARANTY
FOR AND IN CONSIDERATION OF the sum of Ten and No/100 Dollars
($10.00) and other good and valuable consideration paid or delivered to the
undersigned XXXXX RAVINIA, LLC, a Delaware limited liability company
(hereinafter referred to as "Guarantor"), the receipt and sufficiency whereof
are hereby acknowledged by Guarantor, and for the purpose of seeking to induce
FLEET NATIONAL BANK, a national banking association (hereinafter referred to as
"Agent"), as agent for itself and the other lending institutions which are now
or hereafter Lenders (hereinafter referred to as "Lenders") under the Credit
Agreement described below, to extend credit or otherwise provide financial
accommodations to XXXXX EQUITY, INC., a Florida corporation (hereinafter
referred to as "Borrower"), which extension of credit and provision of financial
accommodations will be to the direct interest, advantage and benefit of
Guarantor, Guarantor does hereby absolutely, unconditionally and irrevocably
guarantee to Agent and Lenders:
(a) the full and prompt payment when due, whether by acceleration or
otherwise, either before or after maturity thereof, of certain
Revolving Credit Notes made by Borrower to the order of Lenders in
the aggregate principal face amount of One Hundred Twenty-Five
Million Dollars ($125,000,000.00) and that certain Swingline Note
made by Borrower in the principal amount of Two Million Five Hundred
Thousand and No/100 Dollars ($2,500,000) each as originally executed,
or if varied, extended, supplemented, replaced, consolidated, amended
or restated from time to time, as so varied, extended, supplemented,
replaced, consolidated, amended or restated (hereinafter referred to
as the "Notes"), together with interest as provided in such Notes;
and
(b) the full and prompt payment and performance of all obligations of
Borrower to Agent and Lenders under the terms of that certain
Revolving Credit Loan Agreement dated as December 28, 2001 among
Borrower, Agent and Lenders, as amended by First Amendment to
Revolving Credit Loan Agreement dated as April 5, 2002 and by Second
Amendment to Revolving Credit Loan Agreement of even date herewith,
or if further varied, extended, supplemented, consolidated, amended
or restated from time to time as so varied, extended, supplemented,
consolidated, amended or restated (hereinafter referred to as the
"Credit Agreement"); and
(c) the full and prompt payment and performance of any and all
obligations of Borrower to Agent under the terms of those certain
Mortgage and Security Agreements, Deed to Secure Debt and Security
Agreements and Deed of Trust and Security Agreements made by Borrower
in favor of Agent, whether executed prior to or on the date hereof or
hereafter executed and delivered pursuant to ss.5.3 of the Credit
Agreement, as originally executed, or if varied, extended,
supplemented, consolidated, amended or restated from time to time, as
so varied, extended, supplemented, consolidated, amended or restated
(hereinafter referred to as the "Security Deeds") conveying or
granting a first mortgage lien on certain real properties to secure
the Notes; and
(d) the full and prompt payment and performance of all obligations of
Borrower to Agent
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and Lenders under the terms of those certain Indemnity Agreements
Regarding Hazardous Materials from Borrower to and for the benefit
of Agent and Lenders with respect to the real properties described
in the Security Deeds whether executed prior to or on the date hereof
or hereafter executed and delivered pursuant to ss.5.3 of the Credit
Agreement, as originally executed, or if varied, extended,
supplemented, consolidated, amended or restated from time to time as
so varied, extended, supplemented, consolidated, amended or restated
(hereinafter referred to as the "Indemnity Agreements");
and
(e) the full and prompt payment and performance of any and all other
obligations of Borrower to Agent and Lenders under any other
agreements, documents or instruments now or hereafter evidencing,
securing or otherwise relating to the indebtedness evidenced by the
Notes and the Credit Agreement.
The Notes, the Credit Agreement, the Security Deeds, the Indemnity
Agreements and such other agreements, documents and instruments are hereinafter
collectively referred to as the "Loan Documents" and individually referred to as
a "Loan Document". The obligations to the Agent and Lenders for full and prompt
payment and performance under the Loan Documents as described above are
hereinafter collectively referred to as the "Obligations".
1. Agreement to Pay and Perform; Costs of Collection. Guarantor does
hereby agree that if the Notes are not paid by Borrower in accordance with their
terms, or if any and all sums which are now or may hereafter become due from
Borrower to Agent or Lenders under the Loan Documents are not paid by Borrower
in accordance with their terms, or if any and all other Obligations of Borrower
to Agent or Lenders under the Notes and the Loan Documents are not performed by
Borrower in accordance with their terms, Guarantor will immediately make such
payments and perform such Obligations. Guarantor further agrees to pay Agent on
demand all costs and expenses (including court costs and reasonable attorneys'
fees and disbursements) paid or incurred by Agent in endeavoring to collect the
indebtedness guaranteed hereby, to enforce any of the other obligations of
Borrower guaranteed hereby, or any portion thereof, or to enforce this Guaranty,
and until paid to Agent, such sums shall bear interest at the rate applicable to
overdue amounts set forth in ss.4.9 of the Credit Agreement unless collection
from Guarantor of interest at such rate would be contrary to applicable law, in
which event such sums shall bear interest at the highest rate which may be
collected from Guarantor under applicable law.
2. Reinstatement of Refunded Payments. If, for any reason, any
payment to Agent or any of the Lenders of any of the Obligations guaranteed
hereunder is required to be refunded by Agent or such Lender to Borrower, or
paid or turned over by Agent or such Lender to any other person, including
without limitation by reason of the operation of bankruptcy, reorganization,
receivership or insolvency laws or similar laws of general application relating
to creditors' rights and remedies now or hereafter enacted (all such refunds,
turnovers or payments being collectively referred to herein as "Turnover
Payments"), Guarantor agrees to pay to the Agent or Lenders on demand an amount
equal to all such Turnover Payments and the obligations of Guarantor hereunder
shall not be treated as having been discharged by the original payment to Agent
or
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Lenders giving rise to the Turnover Payment and this Guaranty shall be
treated as having remained in full force and effect for any such Turnover
Payment so made by Agent or Lenders, as well as for any amounts not theretofore
paid to Agent or Lenders on account of such obligations.
3. Rights of Agent to Deal with Collateral, Borrower and Other
Persons. Guarantor hereby consents and agrees that Agent may at any time, and
from time to time, without thereby releasing Guarantor from any liability
hereunder and without notice to or further consent from Guarantor, either with
or without consideration: release or surrender any lien or other security of any
kind or nature whatsoever held by it or by any person, firm or corporation on
its behalf or for its account, securing any indebtedness or liability hereby
guaranteed; substitute for any collateral so held by it, other collateral of
like kind, or of any kind; modify the terms of the Notes or the Loan Documents;
extend or renew the Notes for any period; grant releases, compromises and
indulgences with respect to the Notes or the Loan Documents and to any persons
or entities now or hereafter liable thereunder or hereunder; release any other
Guarantor, surety, endorser or accommodation party of the Notes or any other
Loan Documents; or take or fail to take any action of any type whatsoever. No
such action which Agent or any Lender shall take or fail to take in connection
with the Notes or the Loan Documents, or any of them, or any security for the
payment of the indebtedness of Borrower to Agent and Banks or for the
performance of any Obligations or undertakings of Borrower, nor any course of
dealing with Borrower or any other person, shall release Guarantor's obligations
hereunder, affect this Guaranty in any way or afford Guarantor any recourse
against Agent or Lenders. The provisions of this Guaranty shall extend and be
applicable to all renewals, amendments, extensions, consolidations, restatements
and modifications of the Notes and the Loan Documents, and any and all
references herein to the Notes and the Loan Documents shall be deemed to include
any such renewals, extensions, amendments, restatements, consolidations or
modifications thereof.
4. No Contest With Agent; Subordination. So long as any Obligation
remains unpaid or undischarged, Xxxxxxxxx agrees that it will not, by paying any
sum recoverable hereunder (whether or not demanded by the Agent ) or by any
means or any other ground, claim, set-off or counterclaim against the Borrower
in respect of any liability of Guarantor to the Borrower or, in proceedings
under the Bankruptcy Code or insolvency proceedings of any nature, prove in
competition with the Agent or the Lenders in respect of any payment hereunder or
be entitled to have the benefit of any counterclaim or proof of claim or
dividend or payment by or on behalf of the Borrower or the benefit of any other
security for any Obligation which, now or hereafter, the Agent or the Lenders
may hold or in which it may have any share. Guarantor hereby subordinates any
and all indebtedness of Borrower now or hereafter owed to Guarantor to all
indebtedness of Borrower to the Agent and Lenders, and agrees with the Agent and
Lenders that (a) Guarantor shall not demand or accept any payment from Borrower
on account of such indebtedness, (b) Guarantor shall not claim any offset or
other reduction of Guarantor's obligations hereunder because of any such
indebtedness, and (c) Guarantor shall not take any action to obtain any interest
in any of the security described in and encumbered by the Loan Documents because
of any such indebtedness; provided, however, that, if the Agent so requests,
such indebtedness shall be collected, enforced and received by the applicable
Guarantor as trustee for the Agent and be paid over to the Agent on account of
the indebtedness of Borrower to the Lenders, but without reducing or affecting
in any manner the liability of Guarantor under the other provisions of this
Guaranty except to the extent the principal amount of such outstanding
indebtedness shall have been reduced by such payment.
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5. Waiver of Defenses. Guarantor hereby agrees that its obligations
hereunder shall not be affected or impaired by, and to the extent permitted by
applicable law, hereby waives and agrees not to assert or take advantage of any
defense based on:
(a) any statute of limitations in any action hereunder or for the
collection of the Notes or for the payment or performance of any
obligation hereby guaranteed;
(b) the incapacity or lack of authority of Borrower or any other
person or entity;
(c) the dissolution or termination of existence of Borrower;
(d) the voluntary or involuntary liquidation, sale or other
disposition of all or substantially all of the assets of Borrower;
(e) the voluntary or involuntary receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
assignment, composition, or readjustment of, or any similar
proceeding affecting, Borrower or Guarantor, or any of Borrower's or
Guarantor's properties or assets;
(f) the damage, destruction, condemnation, foreclosure or surrender
of all or any part of the property described in the Security Deeds;
(g) the failure of Agent or Lenders to give notice of the existence,
creation or incurring of any new or additional indebtedness or
obligation or of any action or nonaction on the part of any other
person whomsoever in connection with any obligation hereby
guaranteed;
(h) any failure or delay of Agent or Lenders to commence an action
against Xxxxxxxx, to assert or enforce any remedies against Borrower
under the Notes or the Loan Documents, or to realize upon any
security;
(i) any failure of any duty on the part of Agent or Lenders to
disclose to Guarantor any facts it may now or hereafter know
regarding Borrower, whether such facts materially increase the risk
to Guarantor or not;
(j) failure to accept or give notice of acceptance of this Guaranty
by Agent or Xxxxxxx;
(k) failure to make or give notice of presentment and demand for
payment of any of the indebtedness or performance of any of the
obligations hereby guaranteed;
(l) failure to make or give protest and notice of dishonor or of
default to Guarantor or to any other party with respect to the
indebtedness or performance of obligations hereby guaranteed;
(m) any and all other notices whatsoever to which Guarantor might
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otherwise be entitled;
(n) any lack of diligence by Agent or Lenders in collection,
protection or realization upon any collateral securing the payment of
the indebtedness or performance of obligations hereby guaranteed;
(o) the invalidity or unenforceability of the Notes or any of the
Loan Documents;
(p) the compromise, settlement, release or termination of any or all
of the obligations of Borrower under the Notes or
the Loan Documents;
(q) any exculpation of liability contained in the Notes or in the
Loan Documents;
(r) any transfer by Borrower or any of its subsidiaries of all or
any part of security described in and encumbered by the
Loan Documents;
(s) the failure of Agent or Banks to perfect any security or to
extend or renew the perfection of any security; or
(t) to the full extent permitted by law any and all other legal,
equitable or surety defenses whatsoever to which Guarantor might
otherwise be entitled, it being the intention that the obligations of
all Guarantor hereunder are absolute, unconditional and irrevocable.
6. Guaranty of Payment and Performance and Not of Collection. This is
a Guaranty of payment and performance and not of collection. The liability of
Guarantor under this Guaranty shall be primary, direct and immediate and not
conditional or contingent upon the pursuit of any remedies against Borrower or
any other person, nor against securities or liens available to Agent or Xxxxxxx,
its successors, successors in title, endorsees or assigns. Guarantor hereby
waives any right to require that an action be brought against Borrower or any
other person or to require that resort be had to any balance of any deposit
account or credit on the books of Agent or Lenders in favor of Borrower or any
Collateral securing the Obligations, including, without limitation, Collateral
pursuant to the Deed to Secure Debt and Security Agreement and the Assignment of
Leases and Rents, both of even date herewith from Guarantor to the Agent
relating to the real property owned by Guarantor at Three Ravinia Drive,
Atlanta, DeKalb County, Georgia.
7. Rights and Remedies of Agent . In the event of a default under the
Notes or the Loan Documents, or any of them, Agent shall have the right to
enforce its rights, powers and remedies thereunder or hereunder or under any
other agreement, document or instrument now or hereafter evidencing, securing or
otherwise relating to the indebtedness evidenced by the Notes or secured by the
Loan Documents, in any order, and all rights, powers and remedies available to
Agent in such event shall be nonexclusive and cumulative of all other rights,
powers and remedies provided thereunder or hereunder or by law or in equity.
Accordingly, Guarantor hereby authorizes and empowers Agent upon the occurrence
of any event of default under the Notes or the Loan Documents, at its sole
discretion, and without notice to Guarantor, to exercise any right or remedy
which Agent may have, including, but not limited to, judicial foreclosure,
exercise of rights of power of sale, acceptance of a deed or assignment in lieu
of foreclosure, appointment of
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a receiver to collect rents and profits, exercise of remedies against
personal property, or enforcement of any assignment of leases, as to any
security, whether real, personal or intangible. At any public or private sale of
any security or collateral for any indebtedness or any part thereof guaranteed
hereby, whether by foreclosure or otherwise, Agent may, in its discretion,
purchase all or any part of such security or collateral so sold or offered for
sale for its own account and may apply against the amount bid therefor all or
any part of the balance due it pursuant to the terms of the Notes or Security
Deeds or any other Loan Document without prejudice to Agent's remedies hereunder
against Guarantor for deficiencies. If the indebtedness guaranteed hereby is
partially paid by reason of the election of Agent to pursue any of the remedies
available to Agent, or if such indebtedness is otherwise partially paid, this
Guaranty shall nevertheless remain in full force and effect, and Guarantor shall
remain liable for the entire balance of the indebtedness guaranteed hereby even
though any rights which Guarantor may have against Borrower may be destroyed or
diminished by the exercise of any such remedy.
8. Setoff; Application of Payments. Guarantor hereby grants to each
Lender, a continuing lien, security interest and right of setoff as security for
all liabilities and obligations to such Lender hereunder, whether now existing
or hereafter arising, upon and against all deposits, credits, collateral and
property, now or hereafter in the possession, custody, safekeeping or control of
such Lender or in transit to it. At any time, without demand or notice (any such
notice being expressly waived by Guarantor), any Lender may, WITH THE PRIOR
APPROVAL OF THE AGENT (which approval will not be unreasonably withheld), setoff
the same or any part thereof and apply the same to any liability or obligation
of Guarantor hereunder even though unmatured and regardless of the adequacy of
any other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE ANY
LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL
WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH
RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF XXXXXXXX, ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Guarantor hereby authorizes Agent
and each Lender, without notice to Guarantor, to apply all payments and credits
received from Borrower or from Guarantor or realized from any security in such
manner and in such priority as Agent in its sole judgment shall see fit to the
indebtedness, obligation and undertakings which are the subject of this
Guaranty.
9. Business Failure, Bankruptcy or Insolvency. In the event of the
business failure of Guarantor or if there shall be pending any bankruptcy or
insolvency case or proceeding with respect to Guarantor under federal bankruptcy
law or any other applicable law or in connection with the insolvency of
Guarantor, or if a liquidator, receiver, or trustee shall have been appointed
for Guarantor or Guarantor's properties or assets, Agent may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to
have the claims of Agent allowed in any proceedings relative to Guarantor, or
any of Guarantor's properties or assets, and, irrespective of whether the
indebtedness or other obligations of Borrower guaranteed hereby shall then be
due and payable, by declaration or otherwise, Agent shall be entitled and
empowered to file and prove a claim for the whole amount of any sums or sums
owing with respect to the indebtedness or other obligations of Borrower
guaranteed hereby, and to collect and receive any moneys or other property
payable or deliverable on any such claim.
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10. Guarantor Covenants. Guarantor hereby covenants and agrees that until
all indebtedness guaranteed hereby has been completely repaid and all
obligations and undertakings of Borrower under, by reason of, or pursuant to the
Notes and the Loan Documents have been completely performed, Guarantor shall
comply with all of the covenants and agreements of Borrower contained in the
Credit Agreement wherein the Borrower agreed to cause a Related Company to
perform and observe certain covenants and undertakings which were required by
the Agent, all as more fully described in the Credit Agreement.
11. Changes in Writing; No Revocation. This Guaranty may not be changed
orally, and no obligation of Guarantor can be released or waived by Agent or
Xxxxxxx except by a writing signed by a duly authorized officer of Agent. This
Guaranty shall be irrevocable by Guarantor until all indebtedness guaranteed
hereby has been completely repaid and all obligations and undertakings of
Borrower under, by reason of, or pursuant to the Notes and the Loan Documents
have been completely performed.
12. Notices. All notices, demands or requests provided for or permitted
to be given pursuant to this Guaranty (hereinafter in this paragraph referred to
as "Notice") shall be in writing and shall be delivered in hand, mailed by
United States registered or certified first class mail, postage prepaid, sent by
overnight courier, or sent by telegraph, telecopy, telefax or telex and
confirmed by delivery via courier or postal service, addressed as follows:
(a) The Address of Guarantor is: 000 Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000 Attention: Chief Financial Officer Telefax No. 000-000-0000, with
a copy to Guarantor's counsel, White & Case, LLP, 000 Xxxxx Xxxxxxxx Xxxxxxxxx,
Xxxxx 0000, Xxxxx, XX 00000-0000, Attn: Real Estate Notices, Telefax No.
000-000-0000; and
(b) The Address of Agent is: 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Attention: Structured Real Estate, and to 000 Xxxxxxxxx Xxxxxx Xxxxx,
X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attn: Xxxx X. Xxxxx, Director, Telefax
No. 000-000-0000.
Rejection or other refusal to accept or the inability to deliver because of
changed address of which no Notice was given shall be deemed to be receipt of
the Notice sent. By giving at least thirty (30) days prior Notice thereof,
Guarantor or Agent shall have the right from time to time and at any time during
the term of this Guaranty to change their respective addresses and each shall
have the right to specify as its address any other address within the United
States of America
13. Governing Law; Consent To Jurisdiction And Service. This Guaranty,
and the rights and obligations of the parties hereunder shall be construed and
interpreted in accordance with the laws of the Commonwealth of Massachusetts
(excluding the laws applicable to conflicts or choice of law). XXXXXXXXX AGREES
THAT ANY SUIT BY IT FOR THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS MAY BE BROUGHT ONLY IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND GUARANTOR CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT FOR ANY SUIT BY AGENT OR ANY LENDER AND
THE SERVICE OF PROCESS IN ANY SUCH
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SUIT BEING MADE UPON THE GUARANTOR BY MAIL AT THE ADDRESS SPECIFIED IN
PARAGRAPH 12 HEREOF. GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT FORUM. IN ADDITION TO THE COURTS OF THE
COMMONWEALTH OR ANY FEDERAL COURT SITTING THEREIN, THE AGENT OR ANY LENDER MAY
BRING ACTION(S) FOR ENFORCEMENT ON A NONEXCLUSIVE BASIS WHERE ANY COLLATERAL
EXISTS AND THE GUARANTOR CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH
COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE GUARANTOR
BY MAIL AT THE ADDRESS SPECIFIED IN PARAGRAPH 12 HEREOF.
14. Successors and Assigns. The provisions of this Guaranty shall be
binding upon Guarantor and its heirs, successors, successors in title, legal
representatives, and assigns, and shall inure to the benefit of Agent and
Xxxxxxx, their respective successors, successors in title, legal representatives
and assigns.
15. Assignment by Agent and Lenders. This Guaranty is assignable by any
Lender in whole or in part in conjunction with any assignment of the Notes held
by such Lender or portions thereof, and any assignment hereof or any transfer or
assignment of the Notes or portions thereof by any Lender shall operate to vest
in any such assignee the rights and powers, in whole or in part, as appropriate,
herein conferred upon and granted to such Lender.
16. Severability. If any term or provision of this Guaranty shall be
determined to be illegal or unenforceable, all other terms and provisions hereof
shall nevertheless remain effective and shall be enforced to the fullest extent
permitted by law.
17. Limitation on Amount Guarantied. Anything contained in this Guaranty
to the contrary notwithstanding, if any Fraudulent Transfer Law (as hereinafter
defined) is determined by a court of competent jurisdiction to be applicable to
the obligations of Guarantor under this Guaranty, the obligations of Guarantor
hereunder shall be limited to a maximum aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title 11 of the United
States Code or any applicable provisions of comparable state law (collectively,
the "Fraudulent Transfer Laws"), in each case after giving effect to all other
liabilities of Guarantor, contingent or otherwise, that are relevant under the
Fraudulent Transfer Laws (specifically excluding, however, any liabilities of
Guarantor (x) in respect of intercompany indebtedness to the Borrower or other
affiliates of the Borrower to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by Guarantor hereunder and (y)
under any guaranty of subordinated Indebtedness which guaranty contains a
limitation as to maximum amount similar to that set forth in this subsection,
pursuant to which the liability of Guarantor hereunder is included in the
liabilities taken into account in determining such maximum amount) and after
giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
reimbursement, indemnification or contribution of Guarantor pursuant to
applicable law or pursuant to the terms of any agreement.
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18. Waiver of Jury Trial and Certain Damage Claims THE GUARANTOR, HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN
CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT
LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF
BANK RELATING TO THE ADMINISTRATION OF THE LOANS OR ENFORCEMENT OF THE LOAN
DOCUMENTS, AND AGREE THAT NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH
ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT
AS PROHIBITED BY LAW, GUARANTOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. GUARANTOR
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF AGENT OR ANY XXXXXX HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT AGENT OR ANY LENDER WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR LENDERS TO PROVIDE THE COMMITMENTS AND
MAKE THE LOANS.
IN WITNESS WHEREOF the undersigned has executed this Guaranty as of the
10th day of June, 2002.
Signed, sealed and delivered
company by Assignor in the presence of: XXXXX XXXXXXX, LLC, a Delaware
limited liability
By: XXXXX EQUITY, INC., a Florida
corporation, Its sole Member
/S/ Xxxxx Xxxxxx By: /S/ Xxxxxxxxxxx X. Xxxxxx
------------------------------------- ------------------------------------
Unofficial Witness Printed Name: Xxxxxxxxxxx X. Xxxxxx
------------------------
Printed Title: Senior Vice President
/S/ Xxx X. Xxxxx
Notary Public
Commission Expiration Date:
[NOTARIAL SEAL]
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