GUARANTY
THIS GUARANTY is made and entered into as of this 21st day of April, 1997,
by XXXX COMPANIES US, INC., a Minnesota corporation ("Guarantor"), in favor of
EXCELSIOR-XXXXXXXXX MOTORCYCLE MANUFACTURING COMPANY, a Minnesota corporation
(the "Company").
WITNESSETH:
A. The Belle Plaine Economic Development Authority (the "Authority"),
the City of Belle Plaine, Minnesota (the "City") and the Company have entered
into that certain Contract For Private Development dated as of December 31,
1996 (the "Original Contract"), pursuant to which the Authority and City
agreed to provide certain assistance to facilitate development of the
Development Property (as defined in the Original Contract), and the Company
agreed to construct certain improvements thereon and undertake various other
obligations in connection with such development.
B. The Company has partially assigned its rights and obligations under
the Original Contract to Ryan Belle Plaine, LLC, a Minnesota limited
liability company ("Xxxx"), and the Original Contract was amended in certain
respects pursuant to certain terms and conditions set forth in that certain
Assignment, Assumption and Amendment of Development Contract dated as of even
date herewith by and among the Company, the City, the Authority and Xxxx (the
"Assignment", while the Original Contract and the Assignment being
hereinafter collectively referred to as the "Development Contract").
X. Xxxx and the Company have entered into that certain Construction
Agreement dated as of even date herewith (the "Construction Agreement")
pursuant to which Xxxx agreed to perform certain improvements at and around
the Development Property.
D. In fulfillment of certain obligations imposed pursuant to the
Development Contract, the Authority, Xxxx, the Company and Commonwealth Land
Title Insurance Company have entered into that certain Escrow Agreement dated
as of even date hereunder (the "Escrow Agreement"), pursuant to which, in
part, the Company deposited the Company Funds (as defined in the Escrow
Agreement and the Construction Agreement) into escrow to be held pending
disbursement on account of costs incurred by Xxxx in performing the work
required under the Construction Agreement.
X. Xxxx, as landlord, and the Company, as tenant, have entered into
that certain Lease Agreement dated as of even date herewith (the "Lease"),
pursuant to which Xxxx leased to the Company, and the Company leased from
Xxxx, the entire Development Property, together with the improvements to be
constructed pursuant to the Construction Agreement.
F. Certain payment obligations of Xxxx under the Construction
Agreement are secured by that certain Mortgage dated as of even date herewith
by Xxxx in favor of the Company and encumbering the Development Property (the
"Mortgage").
G. As a condition to entering into the Assignment, the Escrow
Agreement, the Lease and the Construction Agreement, the Company has required
that Guarantor execute and deliver this Guaranty.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Guarantor hereby agrees as
follows:
Section 1. GUARANTY. Guarantor hereby unconditionally guarantees (a)
the full, complete and punctual payment, performance and compliance with when
due of all payments and other obligations of Xxxx now or hereafter existing
under the Construction Agreement, including, without limitation, as modified
by any subsequent instrument, and (b) payment of all fees, expenses or
damages incurred by the Company by reason of Ryan's failure to so pay and
perform and/or comply (the foregoing being collectively referred to herein as
the "Obligations"). Guarantor further agrees to pay any and all expenses
incurred by the Company in enforcing any rights under this Guaranty.
Section 2. GUARANTY ABSOLUTE. Guarantor unconditionally guarantees
that the Obligations will be paid or performed strictly in accordance with
the terms of the Construction Agreement, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Company with respect thereto. The liability of
Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of the Development
Contract, the Escrow Agreement, the Lease, the Construction Agreement, the
Mortgage, or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment or performance
of, or in any other term of, all or any of the Obligations or any other
amendment or waiver of or any consent to departure from the Development
Contract, the Escrow Agreement, the Lease, the Construction Agreement, the
Mortgage, or any other agreement or instrument relating thereto;
(iii) any exchange, release or non-perfection of any collateral or
any release or amendment or waiver of or consent to departure from any
other guaranty, for all or any of the Obligations;
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(iv) any discharge of Xxxx from any of the Obligations pursuant to any
bankruptcy, reorganization, insolvency or liquidation proceedings, or any
similar proceedings for relief under any bankruptcy or under laws for the
relief of debtors; or
(v) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, Xxxx in respect of the Obligations unless
based upon the default of the Company under the Construction Agreement.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment or performance of any of the Obligations is
rescinded or must otherwise be returned by the Company upon the insolvency,
bankruptcy or reorganization of Xxxx or otherwise, all as though such payment
had not been made. Guarantor expressly agrees it shall remain liable for any
deficiency remaining after foreclosure of the Mortgage (by any means) whether or
not the liability of Xxxx or any other obligor for such deficiency is discharged
pursuant to statute or judicial decision.
Section 3. WAIVER. Guarantor hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Obligations
and this Guaranty and any requirement that the Company protect, secure, perfect
or insure any security interest or lien or any property subject thereto or
exhaust any right or take any action against Xxxx or any other person or entity,
including, without limitation, any other guarantor or any collateral. Guarantor
further waives any notice to which it may be entitled regarding changes,
amendments, waivers or other modifications of, or defaults under, the
Development Contract, the Escrow Agreement, the Lease, the Construction
Agreement, the Mortgage, or any other agreement or instrument relating thereto,
as well as any notices regarding disposition or retention of any collateral by
the Company.
Section 4. SUBROGATION. Guarantor shall not exercise any rights which
it may acquire by way of subrogation under this Guaranty, by any payment or
performance made hereunder or otherwise, until all the Obligations shall have
been paid or performed in full. If any amount shall be paid to the Guarantor on
account of such subrogation rights at any time when all the Obligations shall
not have been paid in full, such amount shall be held in trust for the benefit
of the Company and shall forthwith be paid to the Company to be credited and
applied upon the Obligations, whether matured or unmatured. If (i) Guarantor
shall make payment to the Company of all or any part of the Obligations, or
perform all or any part of the Obligations and (ii) all the Obligations shall be
paid or performed in full, the Company will, 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 an interest in the Obligations resulting from such payment or
performance by Guarantor.
Section 5. REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents
and warrants that: (a) it is a corporation duly organized and in good standing
under the laws of
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the State of Minnesota, is not in violation of any provisions of its articles
of incorporation, bylaws or the laws of the State, is duly authorized to
transact business in the State, has full power and authority to enter into
and perform its obligations under this Guaranty and has duly authorized the
execution, delivery and performance of this Guaranty by proper action of its
directors; and (b) the execution and delivery and compliance with the terms
hereof shall not contravene or constitute a default under any indenture,
commitment, agreement or other instrument to which Guarantor is bound or any
judgment, order or decree to which it is subject.
Section 6. CONSIDERATION. As a condition to entering into the
Assignment, the Escrow Agreement, the Lease and the Construction Agreement,
the Company has required that Guarantor execute and deliver this Guaranty.
Section 7. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by Guarantor herefrom shall in any
event be effective unless the same shall be in writing and signed by the
Company, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 8. ADDRESSES FOR NOTICES. All notices and other communications
provided for hereunder shall be in writing (including facsimile
communication) and, if to Guarantor, mailed or telegraphed or delivered to
it, addressed to the Guarantor at 700 International Centre, 000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxx; if to the Company,
mailed or delivered to it at 000 Xxxx Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxx
00000, Attention: Xxx Xxxxxx, addressed to such party at, or as to each party
as such other address as shall be designated by such party in a written
notice to the other party. All such notices and other communications shall,
when mailed or telegraphed, respectively, be effective when deposited in the
mails or delivered by facsimile, respectively, addressed as aforesaid.
Section 9. NO WAIVER; REMEDIES. No failure on the part of the Company
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. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 10. CONTINUING GUARANTY. This Guaranty is a continuing,
irrevocable guaranty and shall: (i) remain in full force and effect until
payment and performance in full of the Obligations and all other amounts payable
under this Guaranty; (ii) be binding upon Guarantor, its successors, transferees
and assigns; and (iii) inure to the benefit of and be enforceable by the Company
and its successors, transferees and assigns.
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Section 11. GOVERNING LAW; SEVERABILITY. This Guaranty shall be
governed by, and construed in accordance with the laws of the State of
Minnesota. If any provision of this Guaranty shall be held to be invalid by
any court of competent jurisdiction, the invalidity of such provision shall
not affect any of the remaining provisions.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly executed
and delivered as of the date first above written.
GUARANTOR:
XXXX COMPANIES US, INC.
By [Illegible]
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Its V-Pres.
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