EXHIBIT 10.29
GUARANTY OF NON-RECOURSE EXCEPTIONS AGREEMENT
THIS GUARANTY OF NON-RECOURSE EXCEPTIONS AGREEMENT (the
"GUARANTY") is executed as of December 13, 2002, by WESCO INTERNATIONAL, INC., a
Delaware corporation, having an address at 0000-00 Xxxxxxxxxxx Xxxxx, Xxx Xxxxx,
Xxxxxx (hereinafter referred to as "GUARANTOR"), for the benefit of BEAR XXXXXXX
COMMERCIAL MORTGAGE, INC., a New York corporation, having an address at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("LENDER").
W I T N E S S E T H :
WHEREAS, pursuant to that certain Promissory Note, dated of
even date herewith, executed by WESCO REAL ESTATE IV, LLC, a Delaware limited
liability company ("BORROWER"), and payable to the order of Lender in the
original principal amount of $13,340,000.00 (together with all renewals,
modifications, increases and extensions thereof, the "NOTE"), Borrower has
become indebted, and may from time to time be further indebted, to Lender with
respect to a loan ("LOAN") which is secured by the liens and security interests
of that certain mortgage of even date herewith (the "MORTGAGE"), and is further
evidenced by that certain Loan Agreement, of even date herewith between Borrower
and Lender (as the same may hereinafter be amended, modified, restated, renewed
or replaced the "LOAN AGREEMENT") and further evidenced, secured or governed by
other instruments and documents executed in connection with the Loan (together
with the Note, the Loan Agreement and Mortgage, the "LOAN DOCUMENTS"); and
WHEREAS, Lender is not willing to make the Loan, or otherwise
extend credit, to Borrower unless Guarantor unconditionally guarantees payment
and performance to Lender of the Guaranteed Obligations (as herein defined); and
WHEREAS, Guarantor is the owner of a direct or indirect
interest in Borrower.
NOW, THEREFORE, as an inducement to Lender to make the Loan to
Borrower and for other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
ARTICLE I
NATURE AND SCOPE OF GUARANTY
1.1 GUARANTY OF OBLIGATION. Guarantor hereby irrevocably
and unconditionally guarantees to Lender and its successors and assigns the
payment and performance of the Guaranteed Obligations as and when the same shall
be due and payable, whether by lapse of time, by acceleration of maturity or
otherwise. Guarantor hereby irrevocably and unconditionally covenants and agrees
that it is liable for the Guaranteed Obligations as a primary obligor.
1.2 DEFINITION OF GUARANTEED OBLIGATIONS. As used herein,
the term "Guaranteed Obligations" means the obligations or liabilities of
Borrower to Lender for any loss, damage, cost, expense, liability, claim or
other obligation incurred by Lender (including
attorneys' fees and costs reasonably incurred) that may arise pursuant to
Section 9.3 of the Loan Agreement.
1.3 NATURE OF GUARANTY. This Guaranty is an irrevocable,
absolute, continuing guaranty of payment and performance and not a guaranty of
collection. This Guaranty may not be revoked by Guarantor and shall continue to
be effective with respect to any Guaranteed Obligations arising or created after
any attempted revocation by Guarantor and after (if Guarantor is a natural
person) Guarantor's death (in which event this Guaranty shall be binding upon
Guarantor's estate and Guarantor's legal representatives and heirs). The fact
that at any time or from time to time the Guaranteed Obligations may be
increased or reduced shall not release or discharge the obligation of Guarantor
to Lender with respect to the Guaranteed Obligations. This Guaranty may be
enforced by Lender and any subsequent holder of the Note and shall not be
discharged by the assignment or negotiation of all or part of the Note.
1.4 GUARANTEED OBLIGATIONS NOT REDUCED BY OFFSET. The
Guaranteed Obligations and the liabilities and obligations of Guarantor to
Lender hereunder, shall not be reduced, discharged or released because or by
reason of any existing or future offset, claim or defense of Borrower, or any
other party, against Lender or against payment of the Guaranteed Obligations,
whether such offset, claim or defense arises in connection with the Guaranteed
Obligations (or the transactions creating the Guaranteed Obligations) or
otherwise.
1.5 PAYMENT BY GUARANTOR. If all or any part of the
Guaranteed Obligations shall not be punctually paid when due, whether at demand,
maturity, acceleration or otherwise, Guarantor shall, immediately upon demand by
Lender, and without presentment, protest, notice of protest, notice of
non-payment, notice of intention to accelerate the maturity, notice of
acceleration of the maturity, or any other notice whatsoever, pay in lawful
money of the United States of America, the amount due on the Guaranteed
Obligations to Lender at Lender's address as set forth herein. Such demand(s)
may be made at any time coincident with or after the time for payment of all or
part of the Guaranteed Obligations, and may be made from time to time with
respect to the same or different items of Guaranteed Obligations. Such demand
shall be deemed made, given and received in accordance with the notice
provisions hereof.
1.6 NO DUTY TO PURSUE OTHERS. It shall not be necessary
for Lender (and Guarantor hereby waives any rights which Guarantor may have to
require Lender), in order to enforce the obligations of Guarantor hereunder,
first to (i) institute suit or exhaust its remedies against Borrower or others
liable on the Loan or the Guaranteed Obligations or any other person, (ii)
enforce Lender's rights against any collateral which shall ever have been given
to secure the Loan, (iii) enforce Lender's rights against any other guarantors
of the Guaranteed Obligations, (iv) join Borrower or any others liable on the
Guaranteed Obligations in any action seeking to enforce this Guaranty, (v)
exhaust any remedies available to Lender against any collateral which shall ever
have been given to secure the Loan, or (vi) resort to any other means of
obtaining payment of the Guaranteed Obligations. Lender shall not be required to
mitigate damages or take any other action to reduce, collect or enforce the
Guaranteed Obligations.
1.7 WAIVERS. Guarantor agrees to the provisions of the
Loan Documents, and hereby waives notice of (i) any loans or advances made by
Lender to Borrower, (ii) acceptance of this Guaranty, (iii) any amendment or
extension of the Note, the Loan Agreement or of any
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other Loan Documents, (iv) the execution and delivery by Borrower and Lender of
any other loan or credit agreement or of Borrower's execution and delivery of
any promissory notes or other documents arising under the Loan Documents or in
connection with the Property, (v) the occurrence of any breach by Borrower or an
Event of Default, (vi) Lender's transfer or disposition of the Guaranteed
Obligations, or any part thereof, (vii) sale or foreclosure (or posting or
advertising for sale or foreclosure) of any collateral for the Guaranteed
Obligations, (viii) protest, proof of non-payment or default by Borrower, or
(ix) any other action at any time taken or omitted by Lender, and, generally,
all demands and notices of every kind in connection with this Guaranty, the Loan
Documents, any documents or agreements evidencing, securing or relating to any
of the Guaranteed Obligations and the obligations hereby guaranteed.
1.8 PAYMENT OF EXPENSES. In the event that Guarantor
should breach or fail to timely perform any provisions of this Guaranty,
Guarantor shall, immediately upon demand by Lender, pay Lender all costs and
expenses (including court costs and reasonable attorneys' fees) incurred by
Lender in the enforcement hereof or the preservation of Lender's rights
hereunder. The covenant contained in this Section shall survive the payment and
performance of the Guaranteed Obligations.
1.9 EFFECT OF BANKRUPTCY. In the event that, pursuant to
any insolvency, bankruptcy, reorganization, receivership or other debtor relief
law, or any judgment, order or decision thereunder, Lender must rescind or
restore any payment, or any part thereof, received by Lender in satisfaction of
the Guaranteed Obligations, as set forth herein, any prior release or discharge
from the terms of this Guaranty given to Guarantor by Lender shall be without
effect, and this Guaranty shall remain in full force and effect. It is the
intention of Borrower and Guarantor that Guarantor's obligations hereunder shall
not be discharged except by Guarantor's performance of such obligations and then
only to the extent of such performance.
1.10 WAIVER OF SUBROGATION, REIMBURSEMENT AND
CONTRIBUTION. Notwithstanding anything to the contrary contained in this
Guaranty, Guarantor hereby unconditionally and irrevocably waives, releases and
abrogates any and all rights it may now or hereafter have under any agreement,
at law or in equity (including, without limitation, any law subrogating the
Guarantor to the rights of Lender), to assert any claim against or seek
contribution, indemnification or any other form of reimbursement from Borrower
of any or all of the Guaranteed Obligations for any payment made by Guarantor
under or in connection with this Guaranty or otherwise.
1.11 BORROWER. The term "Borrower" as used herein shall
include any new or successor corporation, association, partnership (general or
limited), joint venture, trust or other individual or organization formed as a
result of any merger, reorganization, sale, transfer, devise, gift or bequest of
Borrower or any interest in Borrower.
ARTICLE II
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR'S OBLIGATIONS
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Guarantor hereby consents and agrees to each of the following,
and agrees that Guarantor's obligations under this Guaranty shall not be
released, diminished, impaired, reduced or adversely affected by any of the
following, and waives any common law, equitable, statutory or other rights
(including without limitation rights to notice) which Guarantor might otherwise
have as a result of or in connection with any of the following:
2.1 MODIFICATIONS. Any renewal, extension, increase,
modification, alteration or rearrangement of all or any part of the Guaranteed
Obligations, the Note, the Loan Agreement, the other Loan Documents, or any
other document, instrument, contract or understanding between Borrower and
Lender, or any other parties, pertaining to the Guaranteed Obligations or any
failure of Lender to notify Guarantor of any such action.
2.2 ADJUSTMENT. Any adjustment, indulgence, forbearance
or compromise that might be granted or given by Lender to Borrower or any
Guarantor.
2.3 CONDITION OF BORROWER OR GUARANTOR. The insolvency,
bankruptcy, arrangement, adjustment, composition, liquidation, disability,
dissolution or lack of power of Borrower, Guarantor or any other party at any
time liable for the payment of all or part of the Guaranteed Obligations; or any
dissolution of Borrower or Guarantor, or any sale, lease or transfer of any or
all of the assets of Borrower or Guarantor, or any changes in the shareholders,
partners or members of Borrower or Guarantor; or any reorganization of Borrower
or Guarantor.
2.4 INVALIDITY OF GUARANTEED OBLIGATIONS. The invalidity,
illegality or unenforceability of all or any part of the Guaranteed Obligations,
or any document or agreement executed in connection with the Guaranteed
Obligations, for any reason whatsoever, including without limitation the fact
that (i) the Guaranteed Obligations, or any part thereof, exceeds the amount
permitted by law, (ii) the act of creating the Guaranteed Obligations or any
part thereof is ultra xxxxx, (iii) the officers or representatives executing the
Note, the Loan Agreement or the other Loan Documents or otherwise creating the
Guaranteed Obligations acted in excess of their authority, (iv) the Guaranteed
Obligations violate applicable usury laws, (v) the Borrower has valid defenses,
claims or offsets (whether at law, in equity or by agreement) which render the
Guaranteed Obligations wholly or partially uncollectible from Borrower, (vi) the
creation, performance or repayment of the Guaranteed Obligations (or the
execution, delivery and performance of any document or instrument representing
part of the Guaranteed Obligations or executed in connection with the Guaranteed
Obligations, or given to secure the repayment of the Guaranteed Obligations) is
illegal, uncollectible or unenforceable, or (vii) the Note, the Loan Agreement
or any of the other Loan Documents have been forged or otherwise are irregular
or not genuine or authentic, it being agreed that Guarantor shall remain liable
hereon regardless of whether Borrower or any other person be found not liable on
the Guaranteed Obligations or any part thereof for any reason.
2.5 RELEASE OF OBLIGORS. Any full or partial release of
the liability of Borrower on the Guaranteed Obligations, or any part thereof, or
of any co-guarantors, or any other person or entity now or hereafter liable,
whether directly or indirectly, jointly, severally, or jointly and severally, to
pay, perform, guarantee or assure the payment of the Guaranteed Obligations, or
any part thereof, it being recognized, acknowledged and agreed by Guarantor that
Guarantor may be required to pay the Guaranteed Obligations in full without
assistance or
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support of any other party, and Guarantor has not been induced to enter into
this Guaranty on the basis of a contemplation, belief, understanding or
agreement that other parties will be liable to pay or perform the Guaranteed
Obligations, or that Lender will look to other parties to pay or perform the
Guaranteed Obligations.
2.6 OTHER COLLATERAL. The taking or accepting of any
other security, collateral or guaranty, or other assurance of payment, for all
or any part of the Guaranteed Obligations.
2.7 RELEASE OF COLLATERAL. Any release, surrender,
exchange, subordination, deterioration, waste, loss or impairment (including
without limitation negligent, willful, unreasonable or unjustifiable impairment)
of any collateral, property or security at any time existing in connection with,
or assuring or securing payment of, all or any part of the Guaranteed
Obligations.
2.8 CARE AND DILIGENCE. The failure of Lender or any
other party to exercise diligence or reasonable care in the preservation,
protection, enforcement, sale or other handling or treatment of all or any part
of such collateral, property or security, including but not limited to any
neglect, delay, omission, failure or refusal of Lender (i) to take or prosecute
any action for the collection of any of the Guaranteed Obligations or (ii) to
foreclose, or initiate any action to foreclose, or, once commenced, prosecute to
completion any action to foreclose upon any security therefor, or (iii) to take
or prosecute any action in connection with any instrument or agreement
evidencing or securing all or any part of the Guaranteed Obligations.
2.9 UNENFORCEABILITY. The fact that any collateral,
security, security interest or lien contemplated or intended to be given,
created or granted as security for the repayment of the Guaranteed Obligations,
or any part thereof, shall not be properly perfected or created, or shall prove
to be unenforceable or subordinate to any other security interest or lien, it
being recognized and agreed by Guarantor that Guarantor is not entering into
this Guaranty in reliance on, or in contemplation of the benefits of, the
validity, enforceability, collectibility or value of any of the collateral for
the Guaranteed Obligations.
2.10 OFFSET. The Note, the Loan Agreement, the Guaranteed
Obligations and the liabilities and obligations of the Guarantor to Lender
hereunder shall not be reduced, discharged or released because of or by reason
of any existing or future right of offset, claim or defense of Borrower against
Lender, or any other party, or against payment of the Guaranteed Obligations,
whether such right of offset, claim or defense arises in connection with the
Guaranteed Obligations (or the transactions creating the Guaranteed Obligations)
or otherwise.
2.11 MERGER. The reorganization, merger or consolidation
of Borrower into or with any other corporation or entity.
2.12 PREFERENCE. Any payment by Borrower to Lender is held
to constitute a preference under bankruptcy laws, or for any reason Lender is
required to refund such payment or pay such amount to Borrower or someone else.
2.13 OTHER ACTIONS TAKEN OR OMITTED. Any other action
taken or omitted to be taken with respect to the Loan Documents, the Guaranteed
Obligations, or the security and
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collateral therefor, whether or not such action or omission prejudices Guarantor
or increases the likelihood that Guarantor will be required to pay the
Guaranteed Obligations pursuant to the terms hereof, it is the unambiguous and
unequivocal intention of Guarantor that Guarantor shall be obligated to pay the
Guaranteed Obligations when due, notwithstanding any occurrence, circumstance,
event, action, or omission whatsoever, whether contemplated or uncontemplated,
and whether or not otherwise or particularly described herein, which obligation
shall be deemed satisfied only upon the full and final payment and satisfaction
of the Guaranteed Obligations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into the Loan Documents and extend
credit to Borrower, Guarantor represents and warrants to Lender as follows:
3.1 BENEFIT. Guarantor is the owner of a direct or
indirect interest in Borrower.
3.2 INTENTIONALLY DELETED.
3.3 NO REPRESENTATION BY LENDER. Neither Lender nor any
other party has made any representation, warranty or statement to Guarantor in
order to induce the Guarantor to execute this Guaranty.
3.4 GUARANTOR'S FINANCIAL CONDITION. As of the date
hereof, and after giving effect to this Guaranty and the contingent obligation
evidenced hereby, Guarantor is, and will be, solvent, and has and will have
assets which, fairly valued, exceed its obligations, liabilities (including
contingent liabilities) and debts, and has and will have property and assets
sufficient to satisfy and repay its obligations and liabilities.
3.5 LEGALITY. The execution, delivery and performance by
Guarantor of this Guaranty and the consummation of the transactions contemplated
hereunder do not, and will not, contravene or conflict with any law, statute or
regulation whatsoever to which Guarantor is subject or constitute a default (or
an event which with notice or lapse of time or both would constitute a default)
under, or result in the breach of, any indenture, mortgage, deed of trust,
charge, lien, or any contract, agreement or other instrument to which Guarantor
is a party or which may be applicable to Guarantor. This Guaranty is a legal and
binding obligation of Guarantor and is enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency or other laws of general application
relating to the enforcement of creditors' rights.
3.6 SURVIVAL. All representations and warranties made by
Guarantor herein shall survive the execution hereof.
ARTICLE IV
SUBORDINATION OF CERTAIN INDEBTEDNESS
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4.1 SUBORDINATION OF ALL GUARANTOR CLAIMS. As used
herein, the term "GUARANTOR CLAIMS" shall mean all debts and liabilities of
Borrower to Guarantor, whether such debts and liabilities now exist or are
hereafter incurred or arise, or whether the obligations of Borrower thereon be
direct, contingent, primary, secondary, several, joint and several, or
otherwise, and irrespective of whether such debts or liabilities be evidenced by
note, contract, open account, or otherwise, and irrespective of the person or
persons in whose favor such debts or liabilities may, at their inception, have
been, or may hereafter be created, or the manner in which they have been or may
hereafter be acquired by Guarantor. The Guarantor Claims shall include without
limitation all rights and claims of Guarantor against Borrower (arising as a
result of subrogation or otherwise) as a result of Guarantor's payment of all or
a portion of the Guaranteed Obligations. Upon the occurrence of an Event of
Default and during the continuance thereof or the occurrence of an event which
would, with the giving of notice or the passage of time, or both, constitute an
Event of Default, Guarantor shall not receive or collect, directly or
indirectly, from Borrower or any other party any amount upon the Guarantor
Claims.
4.2 CLAIMS IN BANKRUPTCY. In the event of receivership,
bankruptcy, reorganization, arrangement, debtor's relief, or other insolvency
proceedings involving Guarantor as debtor, Lender shall have the right to prove
its claim in any such proceeding so as to establish its rights hereunder and
receive directly from the receiver, trustee or other court custodian dividends
and payments which would otherwise be payable upon Guarantor Claims. Guarantor
hereby assigns such dividends and payments to Lender. Should Lender receive, for
application upon the Guaranteed Obligations, any such dividend or payment which
is otherwise payable to Guarantor, and which, as between Borrower and Guarantor,
shall constitute a credit upon the Guarantor Claims, then upon payment to Lender
in full of the Guaranteed Obligations, Guarantor shall become subrogated to the
rights of Lender to the extent that such payments to Lender on the Guarantor
Claims have contributed toward the liquidation of the Guaranteed Obligations,
and such subrogation shall be with respect to that proportion of the Guaranteed
Obligations which would have been unpaid if Lender had not received dividends or
payments upon the Guarantor Claims.
4.3 PAYMENTS HELD IN TRUST. In the event that,
notwithstanding anything to the contrary in this Guaranty, Guarantor should
receive any funds, payment, claim or distribution which is prohibited by this
Guaranty, Guarantor agrees to hold in trust for Lender an amount equal to the
amount of all funds, payments, claims or distributions so received, and agrees
that it shall have absolutely no dominion over the amount of such funds,
payments, claims or distributions so received except to pay them promptly to
Lender, and Guarantor covenants promptly to pay the same to Lender.
4.4 LIENS SUBORDINATE. Guarantor agrees that any liens,
security interests, judgment liens, charges or other encumbrances upon
Borrower's assets securing payment of the Guarantor Claims shall be and remain
inferior and subordinate to any liens, security interests, judgment liens,
charges or other encumbrances upon Borrower's assets securing payment of the
Guaranteed Obligations, regardless of whether such encumbrances in favor of
Guarantor or Lender presently exist or are hereafter created or attach. Without
the prior written consent of Lender, Guarantor shall not (i) exercise or enforce
any creditor's right it may have against Borrower, or (ii) foreclose, repossess,
sequester or otherwise take steps or institute any action or proceedings
(judicial or otherwise, including without limitation the commencement of, or
joinder
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in, any liquidation, bankruptcy, rearrangement, debtor's relief or insolvency
proceeding) to enforce any liens, mortgage, deeds of trust, security interests,
collateral rights, judgments or other encumbrances on assets of Borrower held by
Guarantor.
ARTICLE V
MISCELLANEOUS
5.1 WAIVER. No failure to exercise, and no delay in
exercising, on the part of Lender, any right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right. The rights of
Lender hereunder shall be in addition to all other rights provided by law. No
modification or waiver of any provision of this Guaranty, nor consent to
departure therefrom, shall be effective unless in writing and no such consent or
waiver shall extend beyond the particular case and purpose involved. No notice
or demand given in any case shall constitute a waiver of the right to take other
action in the same, similar or other instances without such notice or demand.
NOTICES. Any notice, demand, statement, request or consent
made hereunder shall be in writing and shall be deemed to be received by the
addressee on the third day following the day such notice is deposited with the
United States Postal Service first class certified mail, return receipt
requested, addressed to the address, as set forth below, of the party to whom
such notice is to be given, or to such other address as either party shall in
like manner designate in writing. The addresses of the parties hereto are as
follows:
Guarantor: WESCO International, Inc.
000 Xxxx Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx
Attention: Xxxxxx X. Xxxxxxx
Facsimile No. (000) 000-0000
Lender: Bear Xxxxxxx Commercial Mortgage, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx Xxxxxxx
Facsimile No. (000) 000-0000
5.2 GOVERNING LAW. This Guaranty shall be governed in
accordance with the State of New York and the applicable law of the United
States of America.
5.3 INVALID PROVISIONS. If any provision of this Guaranty
is held to be illegal, invalid, or unenforceable under present or future laws
effective during the term of this Guaranty, such provision shall be fully
severable and this Guaranty shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of this Guaranty,
and the remaining provisions of this Guaranty shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Guaranty,
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unless such continued effectiveness of this Guaranty, as modified, would be
contrary to the basic understandings and intentions of the parties as expressed
herein.
5.4 AMENDMENTS. This Guaranty may be amended only by an
instrument in writing executed by the party or an authorized representative of
the party against whom such amendment is sought to be enforced.
5.5 PARTIES BOUND; ASSIGNMENT; JOINT AND SEVERAL. This
Guaranty shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, assigns and legal representatives; provided,
however, that Guarantor may not, without the prior written consent of Lender,
assign any of its rights, powers, duties or obligations hereunder. If Guarantor
consists of more than one person or party, the obligations and liabilities of
each such person or party shall be joint and several.
5.6 HEADINGS. Section headings are for convenience of
reference only and shall in no way affect the interpretation of this Guaranty.
5.7 RECITALS. The recital and introductory paragraphs
hereof are a part hereof, form a basis for this Guaranty and shall be considered
prima facie evidence of the facts and documents referred to therein.
5.8 COUNTERPARTS. To facilitate execution, this Guaranty
may be executed in as many counterparts as may be convenient or required. It
shall not be necessary that the signature of, or on behalf of, each party, or
that the signature of all persons required to bind any party, appear on each
counterpart. All counterparts shall collectively constitute a single instrument.
It shall not be necessary in making proof of this Guaranty to produce or account
for more than a single counterpart containing the respective signatures of, or
on behalf of, each of the parties hereto. Any signature page to any counterpart
may be detached from such counterpart without impairing the legal effect of the
signatures thereon and thereafter attached to another counterpart identical
thereto except having attached to it additional signature pages.
5.9 RIGHTS AND REMEDIES. If Guarantor becomes liable for
any indebtedness owing by Borrower to Lender, by endorsement or otherwise, other
than under this Guaranty, such liability shall not be in any manner impaired or
affected hereby and the rights of Lender hereunder shall be cumulative of any
and all other rights that Lender may ever have against Guarantor. The exercise
by Lender of any right or remedy hereunder or under any other instrument, or at
law or in equity, shall not preclude the concurrent or subsequent exercise of
any other right or remedy.
5.10 OTHER DEFINED TERMS. Any capitalized term utilized
herein shall have the meaning as specified in the Loan Agreement, unless such
term is otherwise specifically defined herein.
5.11 ENTIRETY. THIS GUARANTY EMBODIES THE FINAL, ENTIRE
AGREEMENT OF GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR'S GUARANTY OF THE
GUARANTEED OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
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RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR
AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND
NO COURSE OF DEALING BETWEEN GUARANTOR AND LENDER, NO COURSE OF PERFORMANCE, NO
TRADE PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE
USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY
AGREEMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND LENDER.
5.12 WAIVER OF RIGHT TO TRIAL BY JURY. GUARANTOR HEREBY
AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND
WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL
NOW OR HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE NOTE, THE LOAN
AGREEMENT, THE MORTGAGE, OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM
OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL
BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY GUARANTOR, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY
OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY
GUARANTOR.
5.13 REINSTATEMENT IN CERTAIN CIRCUMSTANCES. If at any
time any payment of the principal of or interest under the Note or any other
amount payable by the Borrower under the Loan Documents is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, the Guarantor's obligations hereunder with respect
to such payment shall be reinstated as though such payment has been due but not
made at such time.
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EXECUTED as of the day and year first above written.
GUARANTOR:
WESCO INTERNATIONAL, INC., a Delaware
corporation
By: _____________________________
Name:
Title:
