EXHIBIT 10(e)
GUARANTY AGREEMENT
WHEREAS, the execution of this Guaranty Agreement is a condition to XXXXX
RAVINIA, LLC, a Delaware limited liability company ("Borrower") borrowing from
METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation having its principal
place of business at Xxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as Lender
("Lender"), the aggregate principal amount of $85,000,000.00;
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the undersigned, XXXXX EQUITY, INC., a Florida
corporation ("Guarantor"), whose address is 000 Xxxxx Xxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000, hereby irrevocably and unconditionally guarantees to
Lender the full and prompt payment and performance of the Guaranteed Obligations
(as defined below), this Guaranty Agreement being upon the following terms:
1. The term "Indebtedness" as used herein shall mean all obligations,
indebtedness and liabilities of Borrower to Lender evidenced by (i) that certain
Promissory Note (the "Note") of even date herewith executed by Borrower and
payable to the order of Lender in the principal amount of Eighty-Five Million
and No/100 Dollars ($85,000,000.00), (ii) the other Loan Documents (as defined
in the Note) and (iii) the Unsecured Indemnity Agreement (as defined in the Deed
to Secure Debt).
2. The term "Guaranteed Obligations" as used herein means: (a) payment and
performance by Borrower of all of Borrower's liability under: (i) the Unsecured
Indemnity Agreement, and (ii) Paragraph 11 of the Note (such amounts under
subsections (i) and (ii) of this Section 2(a) being herein called the
"Performance Sums") plus (b) interest at the Default Rate (as defined in the
Note) which accrues on the Performance Sums from the date of written demand for
payment under this Guaranty Agreement from Lender to Guarantor until the
Performance Sums are paid in full plus (c) all costs, including, without
limitation, all reasonable attorney's fees and expenses incurred by Lender in
connection with collection of the Guaranteed Obligations.
3. This instrument is an absolute, continuing, irrevocable, and
unconditional guaranty of payment and performance, and not a guaranty of
collection, and Guarantor shall remain liable on its obligations hereunder until
the payment and performance in full of the Guaranteed Obligations. No set-off,
counterclaim, recoupment, reduction, or diminution of any obligation, or any
defense of any kind or nature which Borrower may have against Lender or any
other party, or which Guarantor may have against Borrower, Lender, or any other
party, shall be available to, or shall be asserted by, Guarantor against Lender
or any subsequent beneficiary of this Guaranty Agreement or any portion of the
Indebtedness other than complete payment and performance in full of the
Guaranteed Obligations.
4. If Guarantor becomes liable for any indebtedness owing by Borrower to
Lender by endorsement or otherwise, other than under this Guaranty Agreement,
such liability shall not be in any manner impaired or affected hereby, and the
rights of Lender hereunder shall be in addition to 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. In the event of default by Borrower in payment or performance of the
Guaranteed Obligations, or any part thereof, when such Guaranteed Obligations
are due to be paid or performed by Borrower, Guarantor shall promptly pay or
perform the Guaranteed Obligations then due in full without notice or demand,
and it shall not be necessary for Lender, in order to enforce such payment by
Guarantor, first to institute suit or exhaust its remedies against Borrower or
others, or to enforce any rights against any collateral which shall ever have
been given to secure such Indebtedness. Without limiting any other provisions of
this Guaranty Agreement, Guarantor acknowledges and agrees that, to the extent
Lender realizes any proceeds under any documents which secure the Indebtedness
(including, without limitation, voluntary payments, insurance or condemnation
proceeds or proceeds from the sale at foreclosure of any collateral securing the
Indebtedness), such proceeds shall, to the extent permitted by law, not be
applied to or credited against the Guaranteed Obligations. FURTHER,
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS GUARANTY AGREEMENT,
GUARANTOR HEREBY IRREVOCABLY AGREES THAT, UNTIL PAYMENT IN FULL TO LENDER OF THE
INDEBTEDNESS AND THE GUARANTEED OBLIGATIONS, GUARANTOR SHALL HAVE NO RIGHT TO
RECOVER FROM BORROWER ANY CLAIMS GUARANTOR HAS OR MIGHT HAVE AGAINST BORROWER
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(AS SUCH TERM "CLAIM" IS DEFINED IN THE UNITED STATES BANKRUPTCY CODE 11 U.S.C.
ss.101[5] AS AMENDED FROM TIME TO TIME) IN CONNECTION WITH PAYMENTS MADE BY OR
ON BEHALF OF GUARANTOR TO LENDER UNDER THIS GUARANTY AGREEMENT INCLUDING,
WITHOUT IMPLIED LIMITATION, ALL RIGHTS GUARANTOR MAY NOW OR HEREAFTER HAVE UNDER
ANY AGREEMENT OR 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 OR ANY OTHER PARTY LIABLE FOR PAYMENT OF ANY OR ALL OF THE
INDEBTEDNESS.
6. If acceleration of the time for payment by Borrower of all or any
portion of the Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower, the Guaranteed Obligations shall nonetheless be
payable by Guarantor hereunder forthwith on demand by Lender.
7. Guarantor hereby agrees that its obligations under this Guaranty
Agreement shall not be released, discharged, diminished, impaired, reduced, or
affected for any reason or by the occurrence of any event, including, without
limitation, one or more of the following events, whether or not with notice to
or the consent of Guarantor: (a) the taking or accepting of collateral as
security for any or all of the Indebtedness or the release, surrender, exchange,
or subordination of any collateral now or hereafter securing any or all of the
Indebtedness; (b) the full or partial release of Borrower or any other guarantor
from liability for any or all of the Indebtedness or the Guaranteed Obligations;
(c) the dissolution, insolvency, or bankruptcy of Borrower, Guarantor, or any
other party at any time liable for the payment of any or all of the
Indebtedness; (d) any renewal, extension, modification, waiver, amendment, or
rearrangement of any or all of the Indebtedness or any instrument, document, or
agreement evidencing, securing, or otherwise relating to any or all of the
Guaranteed Obligations; (e) any adjustment, indulgence, forbearance, waiver, or
compromise that may be granted or given by Lender to Borrower or any other party
ever liable for any or all of the Indebtedness; (f) any neglect, delay,
omission, failure, or refusal of Lender to take or prosecute any action for the
collection of any of the Guaranteed Obligations from Borrower or Guarantor or to
foreclose or take or prosecute any action in connection with any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or all
of the Indebtedness or any or all of the Guaranteed Obligations; (g) the
unenforceability or invalidity of any or all of the Indebtedness or the
Guaranteed Obligations or any instrument, document, or agreement evidencing,
securing, or otherwise relating to any or all of the Indebtedness or the
Guaranteed Obligations; (h) any payment by Borrower or any other party to Lender
is held to constitute a preference under applicable bankruptcy or insolvency law
or if for any other reason Lender is required to refund any payment or pay the
amount thereof to someone else; (i) the settlement or compromise of any of the
Indebtedness or the Guaranteed Obligations; (j) the non-perfection of any
security interest or lien securing any or all of the Indebtedness; (k) any
impairment of any collateral securing any or all of the Indebtedness; (l) the
failure of Lender to sell any collateral securing any or all of the Indebtedness
in a commercially reasonable manner or as otherwise required by law; (m) any
change in the corporate existence, structure, or ownership of Borrower; (n) the
application against the Indebtedness of the proceeds realized by Lender under
any documents which secure the Indebtedness (including, without limitation,
voluntary payments, insurance or condemnation proceeds or proceeds from the sale
at foreclosure of any collateral securing the Indebtedness), except as provided
in Section 5 of this Guaranty Agreement; or (o) any other circumstance which
might otherwise constitute a defense available to, or discharge of, Borrower or
Guarantor, or any other party liable for any or all of the Indebtedness or the
Guaranteed Obligations. Guarantor further expressly waives any right or option
under applicable law or otherwise to be released or discharged, in whole or in
part, by reason of any of the matters set forth in (a) through (o) of this
Section, and further expressly waives any defense to the full payment and
performance of the Guaranteed Obligations arising from the matters set forth in
(a) through (o) of this Section. In addition, Guarantor expressly waives: (i)
any duty or obligation on the Lender to proceed to collect payment of the
Indebtedness from, or to commence an action against, the Borrower or any other
person, or to resort to any security or to any balance of any deposit account or
credit on the books of the Lender in favor of the Borrower or any other person,
despite any notice or request of the undersigned to do so; and (ii) any and all
rights Guarantor may have under Georgia Code Section 10-7-24 and Georgia Code
Section 00-00-000 (it being intended that Guarantor shall be primarily liable
hereunder notwithstanding Lender's failure to confirm any foreclosure sale
pursuant to said provision).
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8. Guarantor represents and warrants to Lender as follows:
(a) Guarantor has the power and authority and legal right to execute,
deliver, and perform its obligations under this Guaranty Agreement and this
Guaranty Agreement constitutes the legal, valid, and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its terms, except as
limited by bankruptcy, insolvency, or other laws of general application relating
to the enforcement of creditor's rights.
(b) The execution, delivery, and performance by Guarantor of this
Guaranty Agreement do not and will not violate or conflict with any law, rule,
or regulation or any order, writ, injunction, or decree of any court,
governmental authority or agency, or arbitrator and do not and will not conflict
with, result in a breach of, or constitute a default under, or result in the
imposition of any lien upon any assets of Guarantor pursuant to the provisions
of any indenture, mortgage, deed of trust, security agreement, franchise,
permit, license, or other instrument or agreement to which Guarantor or his
properties are bound.
(c) No authorization, approval, or consent of, and no filing or
registration with, any court, governmental authority, or third party is
necessary for the execution, delivery, or performance by Guarantor of this
Guaranty Agreement or the validity or enforceability thereof.
(d) The value of the consideration received and to be received by
Guarantor as a result of Lender making extensions of credit to Borrower and
Guarantor executing and delivering this Guaranty Agreement is reasonably worth
at least as much as the liability and obligation of Guarantor hereunder, and
such liability and obligation and such extensions of credit have benefited and
may reasonably be expected to benefit Guarantor directly and indirectly.
(e) Guarantor has, independently and without reliance upon Lender and
based upon such documents and information as Guarantor has deemed appropriate,
made its own analysis and decision to enter into this Guaranty Agreement.
9. Guarantor covenants and agrees that, as long as the Indebtedness or the
Guaranteed Obligations or any part thereof is outstanding:
(a) Guarantor will furnish to Lender as soon as available, and in any
event within ninety (90) days after the end of each fiscal year of Guarantor,
beginning with the fiscal year ending December 31, 2002, (i) a copy of the
financial statements of Guarantor for such fiscal year and (ii) a certificate of
Guarantor to Lender (A) stating that no default under this Guaranty Agreement
and no event which with notice or lapse of time or both would be a default under
this Guaranty Agreement has occurred and is continuing, or if in Guarantor's
opinion a default under this Guaranty Agreement has occurred and is continuing,
a statement as to the nature thereof and (B) disclosing and certifying as to all
material changes in Guarantor's debt or net worth or otherwise certifying that
there has been no material change in Guarantor's personal debt or net worth
since the previous financial statement delivered to Lender.
(b) Guarantor will furnish promptly to Lender written notice of the
occurrence of any default under this Guaranty Agreement.
(c) Guarantor will furnish promptly to Lender such additional
information concerning Guarantor as Lender may reasonably request.
(d) Guarantor will obtain at any time and from time to time all
authorizations, licenses, consents or approvals as shall now or hereafter be
necessary or desirable under all applicable laws or regulations or otherwise in
connection with the execution, delivery and performance of this Guaranty
Agreement and will promptly furnish copies thereof to Lender.
(e) Except for transfers permitted under the Note and the other Loan
Documents, Guarantor will at all times own directly or indirectly and free and
clear of all liens and encumbrances whatsoever at least the same percentage
interest in Borrower, if any, as it owns directly or indirectly on the date
hereof.
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10. (a) From and after the occurrence of an Event of Default (as defined in
the Note), Guarantor hereby agrees that the Subordinated Indebtedness (as
hereinafter defined) shall be subordinate and junior in right of payment to the
prior payment in full of all Indebtedness, and Guarantor hereby assigns the
Subordinated Indebtedness to Lender as security for the payment of the
Guaranteed Obligations. If any sums shall be paid to Guarantor by Borrower or
any other person or entity on account of the Subordinated Indebtedness, such
sums shall be held in trust by Guarantor for the benefit of Lender and shall
forthwith be paid to Lender without affecting the liability of Guarantor under
this Guaranty Agreement and may be applied by Lender against the Indebtedness or
the Guaranteed Obligations in such order and manner as Lender may determine in
its sole discretion. Upon the request of Lender, Guarantor shall execute,
deliver, and endorse to Lender such documents and instruments as Lender may
request to perfect, preserve, and enforce its rights hereunder. For purposes of
this Guaranty Agreement, the term "Subordinated Indebtedness" means all
indebtedness, liabilities, and obligations of Borrower to Guarantor, whether
such indebtedness, liabilities, and obligations now exist or are hereafter
incurred or arise, or whether the obligations of Borrower thereon are direct,
indirect, contingent, primary, secondary, several, joint and several, or
otherwise, and irrespective of whether such indebtedness, liabilities, or
obligations are evidenced by a note, contract, open account, or otherwise, and
irrespective of the person or persons in whose favor such indebtedness,
obligations, 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; provided, however, that the term "Subordinated Indebtedness" shall
not mean or include any distributions by Borrower to its members pursuant to the
operating agreement of Borrower at any time when no Event of Default exists.
(b) Guarantor agrees that any and all liens, security interests,
judgment liens, charges, or other encumbrances upon Borrower's assets securing
payment of any Subordinated Indebtedness shall be and remain inferior and
subordinate to any and all liens, security interests, judgment liens, charges,
or other encumbrances upon Borrower's assets securing payment of the
Indebtedness or any part thereof, regardless of whether such encumbrances in
favor of Guarantor or Lender presently exist or are hereafter created or
attached. Without the prior written consent of Lender until the Indebtedness has
been paid in full, Guarantor shall not (i) file suit against Borrower or
exercise or enforce any other 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 in, any liquidation, bankruptcy, rearrangement,
debtor's relief or insolvency proceeding) to enforce any liens, security
interests, collateral rights, judgments or other encumbrances held by Guarantor
on assets of Borrower.
(c) In the event of any receivership, bankruptcy, reorganization,
rearrangement, debtor's relief, or other insolvency proceeding involving
Borrower as debtor, Lender shall have the right to prove and vote any claim
under the Subordinated Indebtedness and to receive directly from the receiver,
trustee or other court custodian all dividends, distributions, and payments made
in respect of the Subordinated Indebtedness. Lender may apply any such
dividends, distributions, and payments against the Guaranteed Obligations in
such order and manner as Lender may determine in its sole discretion. Guarantor
hereby appoints Lender as Guarantor's attorney-in-fact, which appointment is
coupled with an interest and is irrevocable, to enable Lender to act in the
place of Guarantor with respect to (i) any claim under the Subordinated
Indebtedness or (ii) the receipt of any such dividends, distributions and
payments.
(d) Guarantor agrees that all promissory notes, accounts receivable,
ledgers, records, or any other evidence of Subordinated Indebtedness shall
contain a specific written notice thereon that the indebtedness evidenced
thereby is subordinated under the terms of this Guaranty Agreement.
11. No amendment or waiver of any provision of this Guaranty Agreement nor
consent to any departure by the Guarantor therefrom shall in any event be
effective unless the same shall be in writing and signed by Lender. No failure
on the part of Lender to exercise, and no delay in exercising, any right, power,
or privilege hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power, or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, power, or
privilege. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
12. Any acknowledgment or new promise, whether by payment of principal or
interest or otherwise and whether by Borrower or others (including Guarantor),
with respect to any of the Indebtedness shall, if the statute of limitations in
favor of Guarantor against Lender shall have commenced to run, toll the running
of such statute of limitations and, if the period of such statute of limitations
shall have expired, prevent the operation of such statute of limitations.
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13. This Guaranty Agreement is for the benefit of Lender and its successors
and assigns, and in the event of an assignment of the Indebtedness, or any part
thereof, the rights and benefits hereunder, to the extent applicable to the
portion of the Indebtedness so assigned, may be transferred with such
Indebtedness. This Guaranty Agreement is binding not only on Guarantor, but on
Guarantor's successors and assigns.
14. Guarantor recognizes that Lender is relying upon this Guaranty
Agreement and the undertakings of Guarantor hereunder in making extensions of
credit to Borrower and further recognizes that the execution and delivery of
this Guaranty Agreement is a material inducement to Lender in making extensions
of credit to Borrower. Guarantor hereby acknowledges that there are no
conditions to the full effectiveness of this Guaranty Agreement.
15. This Guaranty Agreement is executed and delivered as an incident to a
lending transaction negotiated, consummated, and performable in DeKalb County,
Georgia, and shall be governed by and construed in accordance with the laws of
the State of Georgia. Any action or proceeding against Guarantor under or in
connection with this Guaranty Agreement may be brought in any state court in
DeKalb County, Georgia or in any federal court in DeKalb County or Atlanta,
Georgia. Guarantor hereby irrevocably (i) submits to the nonexclusive
jurisdiction of such courts, and (ii) waives any objection it may now or
hereafter have as to the venue of any such action or proceeding brought in such
court or that such court is an inconvenient forum. Guarantor agrees that service
of process and/or notice upon it may be made by certified or registered mail,
return receipt requested, at its address specified on the first page hereof.
Nothing herein shall affect the right of Lender to serve process in any other
matter permitted by law or shall limit the right of Lender to bring any action
or proceeding against Guarantor or with respect to any of Guarantor's property
in courts in other jurisdictions. Any action or proceeding by Guarantor against
Lender shall be brought only in a court located in DeKalb County, Georgia or in
any federal court in DeKalb County or Atlanta, Georgia.
16. Guarantor hereby waives promptness, diligence, notice of any default
under the Indebtedness or of Borrower's failure to pay or perform the Guaranteed
Obligations, demand of payment, notice of acceptance of this Guaranty Agreement,
presentment, notice of protest, notice of dishonor, notice of the incurring by
Borrower of additional indebtedness, and all other notices and demands with
respect to the Indebtedness and this Guaranty Agreement.
17. Guarantor hereby represents and warrants to Lender that Guarantor has
adequate means to obtain from Borrower on a continuing basis information
concerning the financial condition and assets of Borrower and that Guarantor is
not relying upon Lender to provide (and Lender shall have no duty to provide)
any such information to Guarantor either now or in the future.
18. In case any one or more of the provisions contained in this Guaranty
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision hereof, and this Guaranty Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein.
19. THIS GUARANTY AGREEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT OF PAYMENT
AND PERFORMANCE 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,
RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY AGREEMENT IS INTENDED BY
GUARANTOR AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE
GUARANTY AGREEMENT, 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.
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EXECUTED under seal effective December 17, 2002.
GUARANTOR:
XXXXX EQUITY, INC.,
a Florida corporation
By: /S/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
[Corporate Seal]
Signed, sealed and delivered in the presence of:
/S/ Xxxxxxxxx Xxxx
--------------------------------
Unofficial Witness
/S/ Xxxxx Xxxxxxx
--------------------------------
Notary Public
(Notarial Seal)
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