Exhibit 99(B)(17)
Loan No. 0007365-001
GUARANTY AGREEMENT
(Chicago, Xxxx County, Illinois)
THIS GUARANTY ("Guaranty") is made as of July 30, 2001, by XXXXX
XXXXXXX, a married man ("Guarantor"), whose mailing address is 000 Xxxxxxx Xxxx
Xxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000-0000, in favor of GENERAL ELECTRIC
CAPITAL BUSINESS ASSET FUNDING CORPORATION, a Delaware corporation, its
successors and assigns ( "Lender"), whose address is 00000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, with reference to the recitals
set forth below.
R E C I T A L S:
A. Lender has agreed to lend to Xxxxxxx Family, LLC, a Massachusetts
limited liabilitycompany ("Borrower"), the sum of Four Million Fifty Thousand
and no hundredths Dollars ($4,050,000.00) (the "Loan") in accordance with the
terms and provisions of a Promissory Note of even date herewith (the "Note"), to
be secured by a Mortgage, Security Agreement, Assignment of Leases and Rents,
and Fixture Filing (the "Security Instrument") and other security instruments of
even date herewith (the Note, the Security Instrument and all other documents
executed by Borrower in connection with the Loan including, without limitation,
a certain Environmental Indemnity Agreement Regarding Hazardous Substances, are
collectively called the "Loan Documents").
B. As a condition precedent to making the Loan, Lender requires that
Borrower obtain the execution of this Guaranty by Guarantor and Lender will be
relying on the terms hereof in making the Loan. Guarantor's obligations
hereunder are independent of those it has as a member of Borrower.
C. The making of the Loan by Lender to Borrower is of value to
Guarantor, is reasonably expected to benefit Guarantor, directly or indirectly,
and is in furtherance of Guarantor's personal and business interests. In
consideration of Lender making the Loan, and as an inducement to Lender to do
so, Guarantor hereby agrees, warrants and covenants as follows:
1. Guarantor hereby unconditionally, irrevocably and absolutely
guarantees without demand by Lender the full and prompt payment when due,
whether by acceleration or otherwise, of (a) the entire amount of principal and
accrued interest under the Note, and (b) all other indebtedness, obligations and
liabilities of Borrower under the Loan Documents, including, without limitation,
all costs of collection, attorneys' fees, court costs, and other advances and
extensions thereunder whether such indebtedness, obligations or liabilities have
been incurred prior to the date hereof or are incurred from time to time
hereafter and all without set-off, counterclaim, recoupment, or deduction of any
amounts owing or alleged to be owing by Lender to Borrower. It is expressly
understood that this Guaranty covers, without limitation,(y) any and all
amendments, extensions, modifications, rearrangements and renewals of the Loan
or any of the Loan Documents; and (z) all interest, default interest and other
amounts that would have accrued under the Loan Documents but for the
commencement of a case under the Federal Bankruptcy Code or any other similar
federal or state law. Without limiting the foregoing, Guarantor specifically
guarantees payment of any judgment entered against the Borrower and any damages
that may be awarded in any action brought against the Borrower by Lender arising
out of or relating to the Loan or any Loan Document. All of the indebtedness,
obligations and liabilities described in this paragraph are referred to herein
as the "Guaranteed Obligations." This Guaranty is a guaranty of payment and not
merely of collection.
2. This Guaranty shall take effect when received by Lender without
the necessity of any acceptance by Lender or of any notice to Guarantor or to
Borrower, shall be continuing and irrevocable, and shall remain in full force
and effect until the Guaranteed Obligations are fully and finally paid. If
payment is
made by Borrower, whether voluntarily or otherwise, or by any third party, on
the Guaranteed Obligations and thereafter Lender is forced to remit, rescind or
restore the amount of that payment under any federal or state bankruptcy law or
law for the relief of debtors, or for any other reason, (a) the amount of such
payment shall be considered to have been unpaid at all times for the purposes of
enforcement of this Guaranty, (b) the obligations of Borrower guaranteed herein
shall be automatically reinstated to the extent of such payment, and (c)
Guarantor will, on demand, indemnify for and hold Lender harmless from all
losses and all reasonable costs and expenses, including legal fees, incurred by
Lender in connection with such remission, rescission or restoration. In the
event this Guaranty is preceded or followed by any other agreement of suretyship
or guaranty by the Guarantor or others, all shall be deemed to be cumulative,
and the obligations of the Guarantor hereunder shall be in addition to those
stated in any other suretyship or guaranty agreement.
3. The obligations of Guarantor hereunder are separate and
independent of the obligations of Borrower. Guarantor expressly agrees that a
separate action may be brought against Guarantor whether or not Borrower is
joined in such action.
4. Guarantor represents, warrants, and covenants to Lender that (a)
the financial statements of Guarantor heretofore delivered to Lender are true
and correct in all material respects and fairly present the financial condition
of Guarantor as of the respective dates thereof, and no material adverse change
has occurred in the financial condition of Guarantor since the date of the most
recent of such financial statements; (b) Guarantor has derived or expects to
derive financial and other advantages and benefits, directly or indirectly, from
the making of this Guaranty and the Guaranteed Obligations; (c) no
representations or agreements of any kind have been made to Guarantor which
would limit or qualify in any way the terms of this Guaranty; (d) this Guaranty
is executed at Borrower's request and not at the request of Lender; (e) Lender
has made no representation to Guarantor as to the creditworthiness of Borrower;
(f) Guarantor has established adequate means of obtaining from Borrower on a
continuing basis information regarding Borrower's financial condition; (g)
Guarantor will keep adequately informed of any facts, events or circumstances
which might in any way affect Guarantor's risks under this Guaranty; (h) Lender
shall have no obligation to disclose to Guarantor any information or documents
(financial or otherwise) heretofore or hereafter acquired by Lender in the
course of its relationship with Borrower; and (i) Guarantor will not, without
the prior written consent of Lender, sell, lease, assign, encumber, hypothecate,
transfer, or otherwise dispose of all or substantially all of Guarantor's
assets, or take any other action which might reasonably be expected to have a
material adverse effect to Guarantor's financial condition.
5. The Guarantor hereby consents to all terms and conditions of
agreements heretofore or hereafter made between Lender and the Borrower
(including without limitation the Note and other Loan Documents) and further
agrees that Lender may without further consent or disclosure and without
affecting or releasing the obligations of Guarantor hereunder: (a) surrender,
exchange, release, assign, or sell any collateral or waive, release, assign,
sell, or subordinate any security interest, in whole or in part; (b) waive,
delay the exercise of, release, compromise, or grant indulgences in respect of
any rights or remedies of Lender against the Borrower or any surety or guarantor
(including, without limitation, rights or remedies of Lender against Guarantor
under this Guaranty); (c) waive or delay the exercise of any rights or remedies
of Lender in respect of any collateral or security interest now or hereafter
held; (d) renew, extend, waive, accelerate, or modify the terms of any
Guaranteed Obligation or the obligations of any surety or guarantor, including,
without limitation, changes to the rate of interest, or any instrument or
agreement (including, without limitation, the Loan Documents) evidencing or
relating to the same; (e) realize on any security interest, judicially or
nonjudicially, with or without preservation of a deficiency judgment; (f) apply
payments received from Borrower or any surety or guarantor (including Guarantor)
or from any collateral, to any indebtedness, liability, or obligations of
Borrower or such sureties or guarantors whether or not a Guaranteed Obligation
hereunder; or (g) adjust, compromise or receive less than the amount due upon
any collateral or the Guaranteed Obligations, and enter into any accord and
satisfaction or novation agreement with respect to the same as Lender shall deem
advisable.
6. Guarantor waives notice of (a) Lender's acceptance of this
Guaranty or its intention to act or its actions in reliance hereon; (b) the
present existence or future incurring of any Guaranteed
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Obligations or any terms or amounts thereof or any change therein; (c) any
default by the Borrower or any surety or guarantor; (d) the obtaining of any
guaranty or surety agreement (in addition to this Guaranty); (e) the obtaining
of any pledge, assignment or other security for any Guaranteed Obligations; (f)
the release of the Borrower or any surety or guarantor; (g) the release of any
collateral; (h) any change in Guarantor's business or financial condition; (i)
any renewal, extension or modification of the terms of any Guaranteed Obligation
or of the obligations or liabilities of any surety or guarantor or of any
instruments or agreements evidencing the same; (j) any acts or omissions of
Lender consented to in Section 5 hereof; and (k) any other demands or notices
whatsoever with respect to the Guaranteed Obligations or this Guaranty. The
Guarantor further waives notice of presentment, demand, protest, notice of
nonpayment, notice of intent to accelerate, and notice of protest in relation to
any instrument or agreement evidencing any Guaranteed Obligation.
7. Guarantor expressly waives any and all rights to defenses arising
by reason of (a) any "one-action" or "anti-deficiency" law or any other law
which may prevent Lender from bringing any action, including a claim for
deficiency against Guarantor, before or after Lender's commencement or
completion of any foreclosure action, either judicially or by exercise of a
power of sale; (b) any election of remedies by Lender which destroys or
otherwise adversely affects Guarantor's subrogation rights or Guarantor's rights
to proceed against Borrower for reimbursement, including without limitation any
loss of rights Guarantor may suffer by reason of any law limiting, qualifying,
or discharging the Guaranteed Obligations; (c) any disability or other defense
of Borrower, of any other Guarantor, or of any other person, or by reason of the
cessation of Borrower's liability from any cause whatsoever, other than full and
final payment in legal tender of the Guaranteed Obligations; or (d) any right to
claim discharge of the Guaranteed Obligations on the basis of unjustified
impairment of any collateral for the Guaranteed Obligations. Guarantor further
waives (a) to the extent permitted by law, the defense of any statute of
limitations in any action to enforce this Guaranty and agrees that any part
payment by Borrower or other circumstance which operates to toll any statute of
limitations as to Borrower shall toll the statute of limitations as to
Guarantor, (b) any right to cause a marshalling of Borrower's assets, (c) all
exemptions and homestead laws, and (d) all rights of set-off and counterclaims.
Guarantor agrees that Lender may proceed against any collateral securing the
Guaranteed Obligations by way of either judicial or nonjudicial foreclosure.
Guarantor understands that a nonjudicial foreclosure of any deed of trust or
mortgage securing the Guaranteed Obligations could impair or eliminate any
subrogation or reimbursement rights Guarantor may have against Borrower,
nevertheless Guarantor hereby waives and relinquishes any defense based upon the
loss of any such reimbursement or subrogation rights or any other defense which
may otherwise arise therefrom and any defense that may arise out of election of
remedies, discharge or satisfaction of the Guaranteed Obligations. In the event
any such deed of trust or mortgage is foreclosed judicially or nonjudicially,
Guarantor's liability under this Guaranty shall be that portion of the
Guaranteed Obligations representing a deficiency resulting from a judicial or
nonjudicial sale, i.e., the difference between the amount due and owing on the
Guaranteed Obligations on the day of the foreclosure sale (including without
limitation principal, accrued interest, attorneys' fees, late payments, if any,
and costs of foreclosure) and the amount of the successful bid at any such
judicial or nonjudicial foreclosure sale. Guarantor hereby waives the right to
object to the amount which may be bid by Lender at such foreclosure sale.
GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN ELECTION
OF REMEDIES BY LENDER OR ITS SUCCESSORS OR ASSIGNS, EVEN THOUGH THAT
ELECTION OF REMEDIES, SUCH AS NONJUDICIAL FORECLOSURE WITH RESPECT
TO SECURITY FOR A GUARANTEED OBLIGATION, HAS DESTROYED THE
GUARANTOR'S RIGHTS OF SUBROGATION AND REIMBURSEMENT AGAINST THE
PRINCIPAL BY STATUTE OR OTHERWISE.
8. No act of commission or omission of any kind or at any time on
the part of Lender with respect to any matter whatsoever shall in any way affect
or impair this Guaranty. Without limiting the foregoing, the obligations,
covenants, agreements and duties of Guarantor under this Guaranty shall not be
released or impaired in any manner whatsoever, without the written consent of
Lender, on account of any or all of the following: (a) any act or omission of
Lender consented to in Section 5 hereof; (b) the failure to receive any notice,
demand, presentment or protest waived in Sections 4 and 6 hereof; (c) the
occurrence
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of any event as to which Guarantor has provided its waiver under Section 7
hereof: (d) any failure by the Borrower or any other guarantor or surety to
perform or comply with the Guaranteed Obligations or the terms of any instrument
or agreement relating thereto; (e) any change in the name, purpose, capital
stock or constitution of the Borrower or any other guarantor or surety; (f) any
irregularity, defect or unauthorized action by Lender, Borrower or any other
guarantor or surety or any of their respective officers, directors or other
agents in executing and delivering any instrument or agreements relating to the
Guaranteed Obligations or in carrying out or attempting to carry out the terms
of any such agreements; (g) any receivership, insolvency, bankruptcy,
reorganization or similar proceeding by or against Borrower, Lender, Guarantor
or any other surety or guarantor; (h) any setoff, counterclaim, recoupment,
deduction, defense or other right which Guarantor may have against Lender,
Borrower or any other person for any reason whatsoever whether related to the
Guaranteed Obligations or otherwise; (i) any assignment, endorsement or
transfer, in whole or in part, of the Guaranteed Obligations, whether made with
or without notice to or the consent of Guarantor; (j) the voluntary or
involuntary liquidation, sale or other disposition of all or substantially all
of the assets of Borrower or any guarantor; (k) the acceptance of additional or
substitute property as security for or any additional guaranty as surety for any
Guaranteed Obligation; (l) the operation of law or any other cause, whether
similar or dissimilar to the foregoing; (m) the failure by Lender to file or
enforce a claim against the estate (either in administration, bankruptcy or
other proceeding) of Borrower or any other person or entity (including, without
limitation, any guarantor); (n) if the recovery from Borrower or any other
person or entity (including, without limitation, any other guarantor) becomes
barred by any statute of limitations or is otherwise prevented; (o) any
impairment, modification, change, release or limitation of liability of, or stay
of actions of lien enforcement proceedings against Borrower, Borrower's
property, or its estate in bankruptcy resulting from the operation of any
present or future provision of the Federal Bankruptcy Code or any other similar
federal or state statute, or from the decision of any court; or (p) any neglect,
delay, omission, failure or refusal of Lender to take or prosecute any action
for the collection of any of the Guaranteed Obligations or to foreclose or take
or prosecute any action in connection with any lien or right of security
(including perfection thereof) existing or to exist in connection with, or as
security for, any of the Guaranteed Obligations, it being the intention hereof
that Guarantor shall remain liable as a principal on the Guaranteed Obligations
notwithstanding any act, omission or event which might, but for the provisions
hereof, otherwise operate as a legal or equitable discharge of Guarantor.
Guarantor hereby waives all defenses of a surety to which it may be entitled by
statute or otherwise.
9. Guarantor acknowledges that Lender intends to obtain other
guaranties and collateral to secure the repayment of the Guaranteed Obligations.
Guarantor represents and warrants to Lender, however, that in making this
Guaranty it is not relying upon the Lender's obtaining any guaranty agreements
(other than this Guaranty) or any collateral pledged or assigned to secure
repayment of the Guaranteed Obligations. Guarantor specifically acknowledges
that Lender's obtaining any such guaranty agreements or collateral is not a
condition to the enforcement of this Guaranty. If Lender should simultaneously
or hereafter elect to attempt to take additional guaranty agreements or
collateral to secure repayment of the Guaranteed Obligations and if its efforts
to do so should fail in any respect including, without limitation, a
determination that the agreement purporting to provide such additional guaranty
or security interest is invalid or unenforceable for any reason, this Guaranty
shall, nonetheless, remain in full force and effect.
10. Guarantor hereby irrevocably waives all claims it has or may
acquire against Borrower in respect of the Guaranteed Obligations, including
rights of exoneration, reimbursement and subrogation. Guarantor has received no
indemnification or other agreement of reimbursement from Borrower in connection
with the execution and delivery of this Guaranty.
11. This Guaranty shall inure to the benefit of Lender, and Lender's
successors and assigns, and shall be binding upon Guarantor and his heirs,
personal or legal representatives, administrators,executors, successors and
assigns. Lender may, without any notice whatsoever to Guarantor, or to anyone
else, sell, assign or transfer the Note, with or without any security therefor,
and in that event each and every immediate and successive assignee, transferee
or holder of all or any part of the Loan and the Note shall
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have the right to enforce this Guaranty, by suit or otherwise, for the benefit
of such assignee, transferee or holder as though such parties were herein by
name specifically given those rights, powers and benefits.
12. Guarantor agrees to pay all costs and expenses which may be
incurred by Lender in the enforcement or interpretation of this Guaranty,
including reasonable attorneys' fees (to be determined by the court and not by a
jury), and including all costs and reasonable attorneys' fees incurred in any
bankruptcy or insolvency proceeding or on appeal to one or more appellate
courts.
13. This Guaranty shall be governed by and construed and enforced
under the laws of the State of Illinois.
14. No delay on the part of Lender in exercising any right, power or
privilege under this Guaranty shall operate as a waiver of any such right, power
or privilege, nor shall any exercise or waiver of any privilege or right
preclude any other or further exercise of such privilege or right or the
exercise of any other right, power or privilege. All of Lender's rights and
remedies shall be cumulative. In the event Lender in its sole discretion elects
to give notice of any action with respect to the sale of collateral, if any,
securing the Guaranteed Obligations or any part thereof, Guarantor agrees that
ten (10) days prior written notice shall be deemed reasonable notice of any
matters contained in such notice.
15. Any indebtedness of Borrower now or hereafter held by Guarantor
is hereby subordinated to the Guaranteed Obligations. If Lender so requests,
such indebtedness of Borrower to Guarantor shall be collected, enforced and
received by Guarantor in trust for Lender, and be paid over to Lender on account
of the Guaranteed Obligations, but without reducing or affecting in any manner
the liability of Guarantor under the other provisions of this Guaranty.
Guarantor shall file all claims against Borrower in any bankruptcy or other
proceeding in which the filing of claims is required by law upon any
indebtedness of Borrower to Guarantor and will assign to Lender all rights of
Guarantor thereunder. If Guarantor does not file any such claim, Guarantor
hereby appoints and constitutes Lender as Guarantor's attorney-in-fact and
hereby authorizes Lender to do so in the name of Guarantor or, in Lender's
discretion, to assign the claim and to cause the claim to be filed in the name
of Lender's nominee. In all such cases, whether in administration, bankruptcy or
otherwise, the person or persons authorized to pay such claim shall pay to
Lender the full amount thereof, and Guarantor hereby assigns to Lender, to the
full extent necessary for that purpose, all of Guarantor's rights to any such
payments or distributions to which Guarantor would otherwise be entitled.
Nothing in this paragraph shall be construed to create a duty in Lender to take
any action whatsoever to protect any right Guarantor may have as to Borrower.
16. If any provision of this Guaranty or any portion of any
provision of this Guaranty shall be deemed to be invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability shall not alter
the remaining portion of such provision, or any other provision hereof, as each
provision of this Guaranty shall be deemed severable from all other provisions
hereof.
17. This Guaranty shall be so construed that, wherever applicable,
the use of the singular number shall include the plural number, the use of the
plural number shall include the singular number, and the use of any gender shall
be applicable to all genders, and shall likewise be so construed as applicable
to and including a corporation, partnership, or other entity. Each married
individual who executes this Guaranty intends to bind both his or her separate
estate and the jointly held or community estate of that married individual and
his or her spouse. If this Guaranty is executed by more than one person or
entity, the obligations of each Guarantor hereunder shall be joint and several
and this Guaranty shall apply to each of the individuals or entities comprising
Guarantor as if each had executed a separate guaranty and shall not be deemed to
have been revoked or diminished with respect to any of them by the death of all,
some, or one of such persons, or by the revocation or release of any obligation
hereunder, by or against all or any of such other persons. Each Guarantor agrees
that Lender, in its discretion, may (i) bring suit against all Guarantors
jointly and severally or against any one or more of them, (ii) compromise or
settle with any one or more of Guarantors for such consideration as Lender may
deem proper, and (iii) release any one or more of Guarantors from liability
hereunder, and that no such action shall impair the rights of Lender to collect
the
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Guaranteed Obligations (or the unpaid balance thereof) from the other Guarantors
not so sued, settled with or released.
18. All agreements between Guarantor and Lender, whether now
existing or hereafter arising and whether written or oral, are hereby limited so
that in no contingency, whether by reason of demand or acceleration of the final
maturity of the Loan or otherwise, shall the interest contracted for, charged,
received, paid or agreed to be paid to Lender under or in connection with the
Loan exceed the maximum amount permissible under applicable law. All interest
paid or agreed to be paid to Lender shall, to the extent permitted by applicable
law, be amortized, prorated, allocated, and spread throughout the full period
(including any renewal or extension) until payment in full of the principal
balance of the Loan so that the interest hereon for such full period shall not
exceed the maximum amount permissible under applicable law. Lender expressly
disavows any intent to contract for, charge or receive interest in an amount
which exceeds the maximum amount permissible under applicable law. This
paragraph shall control all agreements between Guarantor and Lender.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty under seal
as of the date written above.
GUARANTOR:
Residence Address: /s/ Xxxxx Xxxxxxx [L.S.]
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XXXXX XXXXXXX
00 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000 Social Security No. ###-##-####
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