EXHIBIT 10.5
INDIVIDUAL GUARANTY OF XXXXX XXXX
DATED JUNE 2, 2006
INDIVIDUAL GUARANTY
INDIVIDUAL GUARANTY (this "GUARANTY"), dated June 2, 2006, made by
XXXXX XXXX (the "GUARANTOR"), in favor of NORTH FORK BANK, a New York banking
corporation ("LENDER").
RECITALS
SEAENA, Inc. (the "BORROWER") and Lender have entered into a Credit
Agreement, dated the date hereof the ("CREDIT AGREEMENT").
Guarantor is a shareholder of Borrower and will materially benefit from
the Loans made and to be made under the Credit Agreement.
A material part of the consideration given in connection with and as an
inducement to the execution and delivery of the Credit Agreement is the
execution and delivery of this Guaranty, and Lender is unwilling to extend and
maintain the credit facilities provided under the Credit Agreement unless
Guarantor enters into this Guaranty.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, and in order to induce Lender to make Loans under the Credit
Agreement, the undersigned hereby acknowledges, agrees and confirms that all of
the above recitals are true, correct and complete and hereby covenants and
agrees with Lender as follows:
1. Definitions and Interpretation.
(a) DEFINITIONS. When used herein, capitalized terms used but
not defined in this Guaranty have the meanings assigned to such terms in the
Credit Agreement.
(b) RULES OF INTERPRETATION.
(i) A reference to any document or agreement shall
include such document or agreement as amended, modified, replaced, restated or
supplemented from time to time (provided that nothing contained in this
subsection (b) shall be deemed to permit or authorize any such amendment,
modification, restatement or supplement that is not in accordance with the terms
of such document or agreement or the terms of this Guaranty).
(ii) The singular includes the plural and the plural
includes the singular.
(iii) A reference to any law includes any amendment or
modification to such law.
(iv) A reference to any Person includes its permitted
successors and permitted
assigns.
(v) The words "include," "includes" and "including" are
not limiting.
(vii) The words "herein," "hereof," "hereunder" and words
of like import shall refer to this Guaranty as a whole and not to any particular
section or subdivision of this Guaranty.
(viii) References to Articles, Sections and the like refer
to the Articles, Sections and the like of this Guaranty unless otherwise
indicated.
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2. GUARANTY. Subject to Article 25, Guarantor hereby absolutely,
unconditionally and irrevocably guarantees that the Obligations will be paid
strictly in accordance with the terms of the Credit Agreement and the other Loan
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of Lender with
respect thereto. This Guaranty is a guaranty of payment and not of collection
only. Without limiting the generality of the foregoing, subject to Article 25,
Guarantor's liability shall extend to all amounts which constitute part of the
Obligations and would be owed by Borrower under the Credit Agreement and the
other Loan Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving Borrower. Guarantor agrees that, as between Guarantor and
Lender, the Obligations may be declared to be due and payable for the purposes
of this Guaranty notwithstanding any stay, injunction or other prohibition which
may prevent, delay or vitiate any declaration as regards Borrower and that, in
the event of a declaration or attempted declaration, the Obligations shall
immediately become due and payable by Guarantor for the purposes of this
Guaranty. Notwithstanding the foregoing, the liability of Guarantor with respect
to the Obligations shall be limited to the lesser of: (a) the amount provided in
Article 25, or (b)an aggregate amount equal to the largest amount that would not
render his obligations hereunder subject to avoidance under Section 548 of the
United States Bankruptcy Code or any comparable provisions of any applicable
state law.
3. GUARANTY ABSOLUTE. The obligations of Guarantor under this
Guaranty are independent of the Obligations. Lender shall not be required to
seek payment of the Obligations from Borrower, any other guarantor or any other
Person prior to Lender making demand for payment of the Obligations on Guarantor
or prior to exercising Lender's rights and enforcing Lender's remedies under
this Guaranty and the other Loan Documents. It shall not be necessary for
Lender, in order to exercise Lender's rights and enforce Lender's remedies under
this Guaranty against Guarantor: (x) to first institute suit or exhaust Lender's
remedies against: (i) any collateral given as security for the Loan or (ii)
Borrower, any other guarantor or any other Person, or (y) to have joined with
Guarantor, in any suit brought to enforce this Guaranty, Borrower, any other
guarantor or any other Person. The liability of Guarantor under this Guaranty
shall be absolute and unconditional irrespective of and Guarantor hereby
expressly waives, to the extent permitted by applicable law, any defense to his
obligations under this Agreement by reason of:
(a) any lack of validity, genuineness or enforceability of the
Credit Agreement, any Loan Document or any other agreement or instrument
relating thereto;
(b) non-perfection of any collateral, or any taking, release
or amendment or waiver of or consent to departure from any other guaranty, for
all or any of the Obligations;
(c) any manner of application of collateral, or proceeds
thereof, to all or any of the Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Obligations or any other
assets of Borrower or any of its Subsidiaries;
(d) any change, restructuring or termination of the corporate
structure or existence of Borrower or any of its Subsidiaries; or
(e) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Borrower or Guarantor, other than
payment in full of the Obligations.
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This Guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the Obligations is
rescinded or must otherwise be returned by Lender upon the insolvency,
bankruptcy or reorganization of Borrower or otherwise, all as though such
payment had not been made.
4. WAIVER. Guarantor hereby expressly waives:
(a) Notice of the acceptance by Lender of this Guaranty,
notice of the existence, creation or non-payment of any of the Obligations,
presentment, demand, notice of dishonor, protest, notice of protest and all
other notices except any specifically required by this Guaranty.
(b) Any obligation Lender may have to disclose to Guarantor
any facts Lender now or hereafter may know or have reasonably available to it
regarding Borrower or its financial condition, whether or not Lender has a
reasonable opportunity to communicate such facts or has reason to believe that
any such facts are unknown to Guarantor or materially increase the risk to
Guarantor beyond the risk Guarantor intend to assume hereunder. Guarantor shall
be fully responsible for keeping informed of the financial condition of Borrower
and of all other circumstances bearing on the risk of non-payment or
non-performance of the Obligations.
(c) All diligence in collection of any of the Obligations, any
obligation hereunder, or any guaranty or other security for any of the
foregoing.
(d) The benefit of all appraisement, valuation, marshaling,
forbearance, stay, extension, redemption, homestead, exemption and moratorium
laws now or hereafter in effect, or any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in any
other respect more burdensome than that of a principal.
(e) Any defense based on any statute of limitations.
(f) Any defense based upon Lender's election, in any proceeding
instituted under the Bankruptcy Code, under Section 1111(b)(2) of the Bankruptcy
Code, or any defense based upon any borrowing or any grant of a security
interest under Section 364 of the Bankruptcy Code.
(g) Any defense based upon the application by Borrower of the
proceeds of the Loan for purposes other than the purposes represented by
Borrower to Lender or intended or understood by Lender or Guarantor.
(h) Any defense based on the incapacity, lack of authority,
death or disability of any Person or the failure of Lender to file or enforce a
claim against the estate of any Person in any administrative, bankruptcy or
other proceeding.
(i) Any defense based on an election of remedies by Lender,
whether or not such election might affect in any way the recourse, subrogation
or other rights of Guarantor against Borrower or any other Person in connection
with the Obligations.
(j) Any defense based on the failure of Lender to: (i) provide
notice to Guarantor of a sale or other disposition (including any collateral
sale pursuant to the Uniform Commercial Code) of
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any of the security for any of the Obligations or (ii) conduct such a sale or
disposition in a commercially reasonable manner.
(k) Any defense based on the negligence of Lender in
administering the Loan, or taking or failing to take any action in connection
therewith.
(l) Any right to require Lender to proceed against Borrower or
any other Person or to proceed against or exhaust any security held by Lender at
any time or to pursue any other remedy in Lender's power before proceeding
against Guarantor.
(m) Any defense based upon any lack of authority of the
officers, directors, members or agents acting or purporting to act on behalf of
Borrower or any principal of Borrower or any defect in the formation of Borrower
or any principal of Borrower.
(n) Any defense based upon any failure by Lender to obtain
collateral for the indebtedness or failure by Lender to perfect a lien on any
Collateral.
(o) Any defense based upon any use of cash collateral under
Section 363 of the United States Bankruptcy Code.
(p) Any defense based upon any agreement or stipulation
entered into by Lender with respect to the provision of adequate protection in
any bankruptcy proceeding.
(q) Any defense based upon the avoidance of any security
interest in favor of Lender for any reason.
(r) Any defense based upon any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, liquidation or dissolution
proceeding, including any discharge of, or bar or stay against collecting, all
or any of the Obligations.
(s) Any defense or benefit based upon Borrower's, or any other
party's, designation of the portion of any obligation guaranteed by this
Guaranty to be satisfied by any payment from Borrower or any such party.
(t) Any claim or other right which Guarantor might now have or
hereafter acquire against Borrower or any other Person that arises from the
existence or performance of any obligations under this Guaranty, including,
without limitation, any of the following: (i) any right of subrogation,
reimbursement, exoneration, contribution or indemnification, or (ii) any right
to participate in any claim or remedy of Lender against Borrower or any
collateral security therefore, whether or not such claim, remedy or right arises
in equity or under contract, statute or common law.
It is the express purpose and intent of the parties hereto that this Guaranty
and Guarantor's obligations hereunder shall be absolute and unconditional under
any and all circumstances and shall not be discharged except by payment as
herein provided.
5. DEALINGS WITH BORROWER AND OTHER PERSONS. The obligations of
Guarantor hereunder shall not be released, discharged, limited or affected in
any manner by anything done, suffered or permitted by Lender in connection with
its dealings with Borrower or any other Person. Without limiting the foregoing,
it is agreed that, without releasing, discharging, limiting or otherwise
affecting in whole or
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in part Guarantor's obligations hereunder, Lender may from time to time without
notice to or consent of Guarantor:
(a) Grant time, renewals, extensions, indulgences, releases,
waivers, modifications or discharges to Borrower or any of the Guarantors.
(b) Otherwise extend, amend, modify, supplement, subordinate,
settle, waive, compromise or exchange any of the Obligations or any of the Loan
Documents or any term, condition or provision thereof.
(c) Release one or more guarantors from any of their
obligations hereunder (or settle or compromise a guarantor's obligations),
without in any way releasing or affecting the liability of Guarantor.
(d) Release Borrower from any of the Obligations.
(e) Release, exchange, take or abstain from taking security or
collateral from Borrower, Guarantor or any other Person, or release, substitute
or add any one or more guarantors of any of the Obligations, or otherwise
modify, subordinate, exchange or release its security interest or mortgage lien
on any security or collateral for any of the Obligations.
(f) Take, or delay in taking or refusing to take, any and all
action with respect to this Guaranty or the other Loan Documents (regardless of
whether the same might vary the risk or alter the rights, remedies or recourses
of Guarantor), including specifically (but without limitation) the settlement or
compromise of any amount allegedly due thereunder.
(g) Accelerate the Loan, foreclose on, take possession of or
sell any of the collateral or security for the Obligations or enforce any other
rights under any other Loan Document, or decline or fail to do any of the
foregoing.
(h) Otherwise deal with Borrower or any Guarantor as Lender
may see fit.
6. SUBROGATION. Guarantor shall not exercise any rights that he may
acquire by way of subrogation, by any payment made under this Guaranty or
otherwise, until all the Outstanding Obligations (as defined below) have been
indefeasibly paid in full. If any amount is paid to Guarantor on account of
subrogation rights under this Guaranty at any time when all the Outstanding
Obligations have not been indefeasibly paid in full, the amount shall be held in
trust for the benefit of Lender and shall be promptly paid to Lender to be
credited and applied to the Obligations, whether matured or unmatured or
absolute or contingent, in accordance with the terms of the Credit Agreement. If
Guarantor makes payment to Lender of all or any part of the Obligations and all
the Outstanding Obligations are indefeasibly paid in full, Lender shall, at
Guarantor's request, execute and deliver to Guarantor appropriate documents,
without recourse and without representation or warranty, necessary to evidence
the transfer by subrogation to Guarantor of any interest in the Obligations
resulting from the payment. As used in this Guaranty, "OUTSTANDING OBLIGATIONS"
means, at a given time, all sums then owing by Borrower under the Credit
Agreement and the other Loan Documents and all then outstanding claims asserted
by Lender against Borrower under the Loan Documents, to the extent not: (i)
fully covered by insurance or (ii) fully bonded or otherwise secured to the
reasonable satisfaction of Lender.
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7. REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents and
warrants to Lender as follows:
(a) REVIEW OF GUARANTY AND LOAN DOCUMENTS. Guarantor has
reviewed, with the advice and benefit of his legal counsel, the terms and
provisions of this Guaranty and each other Loan Document.
(b) FINANCIAL BENEFIT TO GUARANTOR. Guarantor is deriving a
material financial benefit from Lender's making of Loans under the Credit
Agreement.
(c) ENFORCEABILITY. This Guaranty has been duly executed and
delivered by Guarantor, and this Guaranty, and each term and provision hereof,
is the legal, valid and binding obligation of Guarantor enforceable against
Guarantor in accordance with its terms.
(d) PENDING LITIGATION. No actions, suits or proceedings are
pending or, to Guarantor's knowledge, threatened against or affecting Guarantor
before any Governmental Authority which could, if adversely decided, result in a
material adverse effect with respect to Guarantor.
(e) NO VIOLATION. The execution, delivery and performance of
this Guaranty do not conflict with or result in any breach or violation of, or
default under: (i) any Requirement of Law applicable to Guarantor or (ii) any
Contractual Obligation applicable to Guarantor or binding upon any of his
property.
(f) NO CONSENT. No consent, approval or authorization of, or
registration, declaration, or filing with, any Governmental Authority or any
other Person, is required and has not been obtained in writing by Guarantor, in
connection with the execution, delivery and performance by Guarantor of this
Guaranty or any of the transactions contemplated by this Guaranty.
(g) INSOLVENCY. Guarantor is not insolvent (as such term is
defined or determined for purposes of the Bankruptcy Code or any other
applicable law), and the execution and delivery of this Guaranty will not make
Guarantor insolvent (as such term is defined or determined for purposes of the
Bankruptcy Code or any other applicable law).
(h) MONITORING BORROWER. Guarantor has adequate means of
obtaining from sources other than Lender, on a continuing basis, financial and
other information pertaining to Borrower's financial condition, the condition
(financial and otherwise) of the Property and Borrower's activities relating
thereto and the status of Borrower's performance of the Obligations under the
Loan Documents, and Guarantor shall keep adequately informed from such means of
any facts, events or circumstances which might in any way affect Guarantor's
risks hereunder.
(i) CONDITIONS PRECEDENT. There are no conditions precedent to
the effectiveness of this Guaranty.
8. REPRESENTATIONS AND WARRANTIES TO BE CONTINUING. All of the
representations and warranties in this Guaranty are true as of the Closing Date
and will continue to be true throughout the term of the Credit Agreement as if
remade at all times afterwards and shall survive the making of the Loans.
Guarantor shall inform Lender in writing within five days upon his discovering
any breach of such representations or warranties.
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9. SUBORDINATION. Without limiting Lender's rights under any other
agreement, until this Guaranty is terminated in accordance with its terms,
Guarantor hereby unconditionally subordinates all present and future debts,
liabilities or obligations now or hereafter owing to Guarantor (i) of Borrower,
to the payment in full of the Obligations, (ii) of every other guarantor of the
Obligations (an "OBLIGATED GUARANTOR"), to the payment in full of the
obligations of such obligated guarantor to Lender and arising under the Loan
Documents, and (iii) of each other Person now or hereafter constituting a Loan
Party, to the payment in full of the obligations of such Loan Party owing to
Lender and arising under the Loan Documents. All amounts due under such
subordinated debts, liabilities, or obligations shall, upon the occurrence and
during the continuance of an Event of Default, be collected and, upon request by
Lender, paid over forthwith to Lender on account of the Obligations, and, after
such request and pending such payment, shall be held by Guarantor as agent and
bailee of Lender separate and apart from all other funds, property and accounts
of Guarantor.
10. PAYMENTS GENERALLY. All payments by Guarantor shall be made in the
manner, at the place and in the currency required by the Loan Documents.
11. AMENDMENTS, ETC. No amendment of this Guaranty shall in any event
be effective unless the same shall be in writing and signed by Lender and
Guarantor. No waiver of any provision of this Guaranty, and no consent to any
departure by Guarantor herefrom, shall in any event be effective unless the same
shall be in writing and signed by Lender, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given.
12. NOTICES. Any notice required or permitted hereunder shall be
given, (a) with respect to Guarantor, at the address for Guarantor set forth
below his signature on this Guaranty and (b) with respect to Lender, at Lender's
address set forth in Section 9.3 of the Credit Agreement. All such addresses may
be modified, and all such notices shall be given and shall be effective, as
provided in Section 9.3 of the Credit Agreement for the giving and effectiveness
of notices and modifications of addresses thereunder.
13. NO WAIVER. No failure on the part of Lender to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right.
14. REMEDIES GENERALLY. The remedies provided in this Guaranty are
cumulative and not exclusive of any remedies provided by law.
15. HEADINGS. The headings and captions hereunder are for convenience
only and shall not affect the interpretation or construction of this Guaranty.
16. FACSIMILE AND PHOTOCOPY. Lender and Guarantor hereby agree that
any facsimile or photocopy signature on any Loan Document or on any notice,
document or other certificate delivered pursuant to the Loan Documents shall be
deemed to have the same force and effect as an original signature, and to the
fullest extent permitted by Legal Requirements may be used in lieu of an
original signature to evidence the execution and delivery of the document,
certificate or instrument to which such facsimile or photocopy signature is
attached.
17. INTEGRATION. This Guaranty sets forth the entire agreement between
the parties hereto relating to the subject matter hereof and supersedes any
prior oral or written statements or agreements with respect to such subject
matter.
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18. SEVERABILITY. The provisions of this Guaranty are intended to be
severable. If for any reason any provision of this Guaranty shall be held
invalid or unenforceable in whole or in part in any jurisdiction, such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
19. EXPENSES. Guarantor shall reimburse Lender on demand for all
costs, expenses and charges (including without limitation reasonable fees and
charges of external legal counsel for Lender and costs reasonably allocated by
its internal legal department) incurred by Lender in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Guaranty ("COLLECTION COSTS"). The obligations of Guarantor under this
Article 19 shall survive the termination of this Guaranty.
20. CONSTRUCTION. The parties hereto acknowledge that they were
represented by competent counsel in connection with the negotiation, drafting
and execution of this Guaranty and agree that this Guaranty shall not be subject
to the principle of construing its meaning against the party which drafted it.
21. CONTINUING GUARANTY; ASSIGNMENTS UNDER CREDIT AGREEMENT. This
Guaranty is a continuing guaranty and shall: (i) remain in full force and effect
until the Facility has been terminated, no Note under the Credit Agreement is
outstanding (and all Loans have been repaid in full) and all Obligations then
outstanding (other than any indemnities described herein and in the other Loan
Documents with respect to which no claim has been asserted) have been paid in
full in cash, (ii) be binding upon Guarantor and its successors and permitted
assigns, and (iii) inure to the benefit of, and be enforceable by, Lender and
its successors, transferees and assigns; provided, however, that Guarantor will
in no event nor under any circumstance have the right, without obtaining the
prior written consent of Lender, to assign or transfer their obligations and
liabilities under this Agreement, in whole or in part, to any other Person.
Without limiting the generality of the foregoing clause, Lender, but not
Guarantor, may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement to any other Person, and such other
Person shall thereupon become vested with all the benefits in respect thereof
granted to Lender herein or otherwise.
22. INFORMED WAIVER. Guarantor acknowledges and agrees that Guarantor
has had the benefit of legal counsel in connection with the execution and
delivery of this Guaranty and Guarantor has not executed and delivered this
Guaranty under any fraud, duress, undue influence or coercion of any kind.
Guarantor hereby acknowledges that: (a) the obligations undertaken by Guarantor
in this Guaranty are complex in nature, (b) numerous possible defenses to the
enforceability of the Obligations may presently exist and/or may arise hereafter
and (c) as part of Lender's consideration for entering into the Credit
Agreement, Lender has specifically bargained for the waiver and relinquishment
by Guarantor of all such defenses. Given all of the above, Guarantor does hereby
represent and confirm to Lender that Guarantor is fully informed regarding, and
that Guarantor does thoroughly understand: (i) the nature of all such possible
defenses, (ii) the circumstances under which such defenses may arise, (iii) the
benefits which such defenses might confer upon Guarantor and (iv) the legal
consequences to Guarantor of having waived such defenses. Guarantor acknowledges
that Guarantor makes this Guaranty with the intent that this Guaranty and all of
the waivers herein shall each and all be fully enforceable by Lender, and that
Lender is induced to enter into this transaction in material reliance upon the
presumed full enforceability thereof.
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23. INSTRUMENT FOR THE PAYMENT OF MONEY. Guarantor hereby acknowledges
that this Guaranty constitutes an instrument for the payment of money, and
consents and agrees that Lender, at its sole option, in the event of a dispute
by Guarantor in the payment of any moneys due hereunder, shall have the right to
bring motion-action under New York CPLR Section 3213.
24. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES; COUNTERCLAIMS.
(a) AS PART OF THE CONSIDERATION FOR NEW VALUE RECEIVED, AND
REGARDLESS OF ANY PRESENT OR FUTURE DOMICILE OR PRINCIPAL PLACE OF BUSINESS OF
GUARANTOR OR LENDER, GUARANTOR HEREBY CONSENTS AND AGREES THAT THE SUPREME COURT
OF NEW YORK, COUNTY OF SUFFOLK, OR THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN GUARANTOR AND LENDER PERTAINING TO THIS
GUARANTY OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS GUARANTY. GUARANTOR
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
SUIT COMMENCED IN ANY SUCH COURT, AND GUARANTOR HEREBY WAIVES ANY OBJECTION
WHICH GUARANTOR MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER
VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL
OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
(b) GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO GUARANTOR AT THE ADDRESS SET FORTH IN THIS
GUARANTY AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF
GUARANTOR'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE U.S.
MAILS, PROPER POSTAGE PREPAID. NOTHING IN THIS GUARANTY SHALL BE DEEMED OR
OPERATE TO AFFECT THE RIGHT OF LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW, OR TO PRECLUDE THE ENFORCEMENT BY LENDER OF ANY JUDGMENT OR
ORDER OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO
ENFORCE SAME IN ANY OTHER APPROPRIATE FORUM OR JURISDICTION.
(c) Guarantor hereby waives the right to assert a
counterclaim, other than a compulsory counterclaim, in any action or proceeding
brought against him by Lender or its agents or otherwise to offset any
obligations to make the payments required by the Loan Documents. No failure by
Lender to perform any of its obligations hereunder shall be a valid defense to,
or result in any offset against, any payments that Guarantor are obligated to
make under any of the Loan Documents.
(d) Guarantor hereby waives, to the maximum extent not
prohibited by law, any right Guarantor may have to claim or recover in any legal
action or proceeding any special, exemplary, punitive or consequential damages.
25. LIMITATION OF LIABILITY. Notwithstanding anything to the contrary
contained in this Guaranty, the maximum liability of Guarantor under this
Guaranty shall be limited to One Million
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Dollars ($1,000,000.00) of the Obligations, plus Collection Costs, less any
amounts recovered by Lender from collateral pledged by Guarantor as provided in
the Individual Guarantor Pledge Agreement by and between Guarantor and Lender of
even date herewith.
26. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
27. WAIVER OF JURY TRIAL. GUARANTOR WAIVES THE RIGHT TO TRIAL BY JURY
(WHICH LENDER HEREBY ALSO WAIVES) IN ANY ACTION, SUIT, PROCEEDING OR
COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS GUARANTY. GUARANTOR
AND LENDER ACKNOWLEDGE THAT THE FOREGOING WAIVER IS A MATERIAL INDUCEMENT TO
LENDER'S ACCEPTING AND GUARANTOR'S ENTERING INTO THIS GUARANTY AND THAT THE
OTHER PARTY IS RELYING UPON THE FOREGOING WAIVER IN HIS AND ITS FUTURE DEALINGS
WITH THE WAIVING PARTY. GUARANTOR WARRANTS AND REPRESENTS THAT HE HAS REVIEWED
THE FOREGOING WAIVER WITH HIS LEGAL COUNSEL AND HAS KNOWINGLY AND VOLUNTARILY
WAIVED HIS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.
IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty
as of the date first above written.
/s/ XXXXX X. XXXX
---------------------------------
XXXXX XXXX
Address: 0000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
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