EXHIBIT C
GUARANTY AGREEMENT
Section 1. Guaranty. For value received, FAMILY GOLF
CENTERS, INC., a Delaware corporation ("Guarantor"), hereby absolutely and
unconditionally guarantees to CAROLINA CAPITAL VENTURES, LTD., a North
Carolina corporation ("Beneficiary"), and its successors or assigns, the full,
prompt and faithful performance of each and every obligation of RALEIGH FAMILY
GOLF CENTERS, INC., a Delaware corporation ("Tenant"), under the Lease
Agreement between Beneficiary, as landlord, and Tenant, as tenant, relating to
the lease of certain property in Wake County, North Carolina (as the same may
have been amended from time to time, the "Lease"). As used in this Guaranty
Agreement (this "Guaranty"), "Guaranteed Obligations" means all obligations of
Tenant guaranteed by Guarantor in this Section 1.
Section 2. Term. The obligations of Guarantor as to the
Guaranteed Obligations shall continue in full force and effect against
Guarantor until Guarantor has performed the Guaranteed Obligations as set
forth herein. This Guaranty covers any and all of the Guaranteed Obligations,
whether presently outstanding or arising subsequent to the date hereof. This
Guaranty is binding upon and enforceable against Guarantor and the assigns and
successors of Guarantor.
Section 3. Representation and Warranty of Guarantor.
Guarantor hereby represents and warrants to Beneficiary that Guarantor has
received, or will receive, direct or indirect benefit from the making of this
Guaranty.
Section 4. Waiver of Rights. Guarantor hereby waives (a)
notice of acceptance hereof; (b) grace, demand, presentment and protest with
respect to the Guaranteed Obligations or to any instrument, agreement or
document evidencing or creating same; (c) notice of grace, demand, presentment
and protest; (d) notice of non-payment or other defaults, of intention to
accelerate and of acceleration of the Guaranteed Obligations; (e) notice of
and/or any right to consent or object to the assignment of any interest in the
Lease or the Guaranteed Obligations; (f) notice of the renewal, extension,
amendment and/or modification of any of the terms and provisions of the Lease;
(g) notice of the filing of suit and diligence by Beneficiary in collection or
enforcement of the Guaranteed Obligations; and (h) any other notice regarding
the Guaranteed Obligations.
Section 5. Primary Liability of Guarantor. The liability of
Guarantor shall not be impaired, reduced or in any way affected by: (a)
Beneficiary's failure, refusal, or neglect to collect or enforce the
Guaranteed Obligations, by way of, without limitation, any indulgence,
forbearance, compromise, settlement or waiver of performance which may be
extended to Tenant by Beneficiary or agreed upon by Beneficiary and Tenant; or
(b) any
termination of the Lease to the extent that Tenant thereafter continues to be
liable. This Guaranty constitutes a primary obligation of Guarantor. This is
an absolute, unconditional, irrevocable and continuing guaranty of payment and
performance and not of collection and is in no way conditioned upon any
attempt to collect from Tenant or upon any other event or contingency.
Guarantor agrees that Beneficiary is not required, as a condition to
establishing Guarantor's liability hereunder, to proceed against any person
(including, without limitation, Tenant or any other guarantor). Guarantor
hereby expressly waives any right or claim to force Beneficiary to proceed
first against Tenant or any other guarantor as to any of the Guaranteed
Obligations or other obligations of Tenant, and agrees that no delay or
refusal of Beneficiary to exercise any right or privilege which Beneficiary
has or may have against Tenant, whether arising from any documents executed by
Tenant, any common law, applicable statute or otherwise, shall operate to
impair the liability of Guarantor hereunder. The obligations of Guarantor
hereunder shall not be reduced, impaired or in any way affected by: (a)
receivership, insolvency, bankruptcy or other proceedings affecting Tenant or
any of Tenant's assets; (b) receivership, insolvency, bankruptcy or other
proceedings affecting Guarantor or any of Guarantor's assets; and (c) any
allegation of fraud, failure of consideration, forgery or other defense,
whether or not known to Beneficiary (even though rendering all or any part of
the Guaranteed Obligations void or unenforceable or uncollectible as against
Tenant or any other guarantor). 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
Guaranteed Obligations is rescinded or must otherwise be returned by
Beneficiary upon the insolvency, bankruptcy or reorganization of Tenant or
otherwise.
Section 6. Place of Performance; Attorneys' Fees. All
payments to be made and obligations to be performed hereunder shall be paid or
performed in the location for payment or performance (as applicable) set forth
in the Lease. If it becomes necessary for Beneficiary to enforce this Guaranty
by legal action, Guarantor hereby waives the right to be sued in the county or
state of such Guarantor's residence and agrees to submit to the jurisdiction
and venue of the appropriate federal, state or other governmental court in
Wake County, North Carolina. Guarantor unconditionally agrees to pay
Beneficiary's collection expenses, including, without limitation, court costs
and reasonable attorneys' fees if enforcement hereof is placed in the hands of
an attorney, including, but expressly not limited to, enforcement by suit or
through probate, bankruptcy or any judicial proceedings.
Section 7. Applicable Law. This Guaranty shall be governed
by and construed in accordance with the laws of the United States of America
and the State of North Carolina, and is intended to be performed in accordance
with and as permitted by such laws.
Section 8. Entire Agreement. This Guaranty constitutes the
entire agreement of the parties with respect to the subject matter hereof, and
all prior correspondence, memoranda, agreements or understandings (written or
oral) with respect hereto are merged into and superseded by this Guaranty.
This Guaranty may not be changed,
modified, discharged or terminated in any manner other than by an agreement in
writing signed by Guarantor and Beneficiary.
Section 9. Severability. In case any one or more of the
provisions contained in this Guaranty shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
other provisions contained herein shall not in any way be affected or impaired
thereby.
EXECUTED as of the ________ day of ________ , 1997.
GUARANTOR:
FAMILY GOLF CENTERS, INC.
By:______________________
Name:____________________
Title:___________________
