Date: June 26, 1998
Guaranty
Between and
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BANK: GUARANTOR:
NationsBank, N.A. Xxxxxxxx X. Xxxxxxxxx
000 Xxxxx Xxxxx Xxxxxx 0000 Xxxxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
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"BORROWER": Wise Partners, L.P., a Delaware limited partnership
I. Guaranty. FOR VALUE RECEIVED, and to induce NationsBank, N.A., a
national banking association (the "Bank"), to make the loans or advances
contemplated by the Loan Agreement (as hereinafter defined), the undersigned,
Xxxxxxxx X. Xxxxxxxxx ("Guarantor"), hereby irrevocably and unconditionally
guarantees to the Bank the full and prompt payment when due, whether by
acceleration or otherwise, of any and all the obligations of the Borrower to
pay, as and when due and payable (by mandatory prepayment, by scheduled maturity
or upon the occurrence of any Event of Default), all amounts from time to time
owing by the Borrower pursuant to any Loan Documents as in effect on the Closing
Date (or modified or amended with the consent of the Guarantor), whether for
principal, interest, fees or otherwise (collectively, the "Obligations"). This
Guaranty is intended to provide a continuing guarantee of the payment of the
Obligations without limitation as to amounts guaranteed hereunder. Capitalized
terms used herein without definition shall have the meanings ascribed thereto in
the Loan Agreement, dated as of the date hereof (the "Loan Agreement"), between
the Borrower and the Bank.
II. Nature of Obligations. (a) The undertakings of Guarantor hereunder are
independent of the Obligations and, subject to the provisions of Section 2(b), a
separate action or actions for payment, damages or performance may be brought or
prosecuted against Guarantor, regardless of whether (i) an action is brought
against Borrower or Xxxx X. Xxxxxxxxx or to realize upon any security for the
Obligations or, (ii) Borrower is joined in any such action or actions. The
obligations of Guarantor hereunder are joint and several with the obligations of
Xxxx X. Xxxxxxxxx under the Guaranty, dated the date hereof, of Xxxx X.
Xxxxxxxxx to the Bank. Guarantor shall not be entitled to assert as a defense to
the enforceability of this Guaranty any defense of Borrower with respect to any
Obligations.
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(b) Notwithstanding anything to the contrary contained herein or in
any other Loan Document, it is understood and agreed that the Bank shall
make demand for payment of any Obligation that is due and payable pursuant
to the terms of the Loan Documents (whether on the due date thereof, at
maturity or upon acceleration) first on the Borrower (with a copy of such
notice of demand provided to Guarantor) and shall not make demand on
Guarantor for payment of any such Obligation until five days have elapsed
since the date of such demand by the Bank on the Borrower.
III. Paragraph Headings, Governing Law and Binding Effect. The paragraph
headings in this Guaranty are for convenience only and that they will not limit
any of the provisions of this Guaranty. This Guaranty shall be governed by and
construed in accordance with the laws of the State of New York and applicable
United States federal law. This Guaranty shall be deemed to have been made in
the State of New York at the Bank's New York address indicated in Section VIII
of the Loan Agreement, and may be enforced in the courts of the State of New
York, or the United States courts located within the State of New York, and is
performable in the State of New York. This Guaranty is binding upon Guarantor
and his heirs, representatives, estate, successors and assigns, and the Bank and
its successors and assigns, and shall inure to the benefit of the Bank, its
successors, endorsees or assigns.
IV. Waiver by Guarantor. Guarantor waives notice of acceptance of this
Guaranty, notice of any Obligations, presentment, demand for payment, protest,
notice of dishonor or nonpayment of any Obligations, notice of intent to
accelerate, notice of acceleration, and notice of any suit or the taking of
other action by the Bank against Borrower, Guarantor or any other person, any
applicable statute of limitations and any other notice to any party liable on
any Loan Document (including Guarantor), except as is specifically provided in
Section 12 and Section 13 hereof.
Subject to the provisions of Section 2(b) hereof, Guarantor also waives the
benefits of any provision of law requiring that the Bank exhaust any right or
remedy, or take any action, against the Borrower, any other guarantor or any
other person or property prior to or simultaneously with proceeding against
Guarantor hereunder.
The Bank may at any time and from time to time (whether before or after
revocation or termination of this Guaranty) without notice to Guarantor (except
as required by Section 1, Section 2(b), Section 12 or Section 13 hereof or any
other notice required under any Loan Document which may not be waived under
applicable law), without incurring responsibility to Guarantor, without
impairing, releasing or otherwise affecting the obligations of Guarantor, in
whole or in part, and without the endorsement or execution by Guarantor of any
additional consent, waiver or guaranty: (a) change the manner, place or terms of
payment, or change or extend the time of or renew, or change any interest rate
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or alter any Obligation or installment thereof, or any security therefor; (b)
sell, exchange, release, surrender, realize upon or otherwise deal with in any
manner and in any order any Collateral and offset against any Collateral or
other property as provided in the Loan Documents; (c) exercise or refrain from
exercising any rights against Borrower or others or act or refrain from acting
in any other manner; (d) settle or compromise any Obligation or any security
therefor and subordinate the payment of all or any part thereof to the payment
of any Obligation of any other parties primarily or secondarily liable on any of
the Obligations; (e) release or compromise any liability of Guarantor hereunder
or any liability or obligation of any other parties primarily or secondarily
liable on any of the Obligations; or (f) apply any sums from any sources to any
Obligation without regard to any Obligations remaining unpaid.
V. Subordination. Guarantor agrees that it will not demand, take or receive
from Borrower, by set-off or in any other manner, payment of any debt, now and
at any time or times hereafter owing by Borrower to Guarantor unless and until
all the Obligations shall have been fully paid and the Obligations fully
performed, and any security interest, liens or encumbrances which Guarantor now
has and from time to time hereafter may have upon any of the assets of Borrower
shall be made subordinate, junior and inferior and postponed in priority,
operation and effect to any security interest of the Bank in such assets.
VI. Waivers by the Bank. No delay on the part of the Bank in exercising any
of its options, powers or rights, and no partial or single exercise thereof,
shall constitute a waiver thereof. No waiver of any of its rights hereunder, and
no modification or amendment of this Guaranty, shall be deemed to be made by the
Bank unless the same shall be in writing, duly signed on behalf of the Bank; and
each such waiver, if any, shall apply only with respect to the specific instance
involved, and shall in no way impair the rights of the Bank or the obligations
of Guarantor to the Bank in any other respect at any other time.
VII. Partial Invalidity and/or Enforceability of Guaranty. The
unenforceability or invalidity of any provision of this Guaranty shall not
affect the enforceability or validity of any other provision herein and the
invalidity or unenforceability of any provision of any Loan Document as it may
apply to any person or circumstance shall not affect the enforceability or
validity of such provision as it may apply to other persons or circumstances.
In the event the Bank is required to relinquish or return any payments, any
Collateral or the proceeds thereof, in whole or in part, which had been
previously applied to or retained for application against any Obligation, by
reason of a proceeding arising under any applicable bankruptcy or insolvency
law, or for any other reason, this Guaranty shall automatically continue to be
effective notwithstanding any previous cancellation or release effected by the
Bank.
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VIII. Change of Status. Guarantor hereby agrees that this Guaranty shall
remain the binding, legal and enforceable obligation of Guarantor, irrespective
of any change in name by Guarantor or Borrower or change in type of entity of
Borrower.
IX. Financial and Other Information. For any year in which any Obligations
remain outstanding, Guarantor will furnish the Bank with his annual financial
statements in form satisfactory to the Bank within ninety (90) days after the
end of the calendar year, which financial statements shall consist of a balance
sheet for the previous twelve months. Guarantor will furnish to the Bank within
fifteen (15) days of filing, all tax returns filed by Guarantor. Guarantor will
also furnish to the Bank financial information regarding Guarantor reasonably
requested in writing by the Bank within thirty (30) days of the date of the
request. Guarantor has made an independent investigation of the financial
condition and affairs of Borrower prior to entering into this Guaranty, and
Guarantor will continue to make such investigation, and in entering into this
Guaranty, Guarantor has not relied upon any representation of the Bank as to the
financial condition, operation or creditworthiness of Borrower. Guarantor
further agrees that the Bank shall have no duty or responsibility now or
hereafter to make any investigation or appraisal of Borrower on behalf of
Guarantor or to provide Guarantor with any credit or other information which may
come to its attention now or hereafter.
X. Guarantor Representations and Warranties. 1. The financial statements of
Guarantor, dated March 12, 1998, which have been delivered to the Bank fairly
present Guarantor's financial condition as of the date thereof. Guarantor has
not failed to disclose to the Bank any information that could materially affect
Guarantor's properties, prospects or financial condition. There has occurred no
material adverse change in the financial condition of Guarantor since the date
of such financial statements.
2. This Guaranty and each of the other Loan Documents to which
Guarantor is a party have been duly executed and delivered by Guarantor and
constitute the legal, valid and binding obligations of Guarantor and are
enforceable against Guarantor in accordance with their terms; Guarantor has
full capacity and power to execute and deliver this Guaranty and such other
Loan Documents; and the execution and delivery by Guarantor of this
Guaranty and such other Loan Documents and the performance by Guarantor of
Guarantor's obligations hereunder and thereunder, do not violate, or
conflict with, any agreement, instrument, note, judgment, order or decree
binding on Guarantor or under any law, rule or regulation applicable to
Guarantor, which violation or conflict would have a material and adverse
effect on Guarantor's ability to perform its obligations under the Loan
Documents or the rights and remedies of the Bank under the Loan Documents.
XI. Notices. Notices provided hereunder shall be delivered personally or
sent certified mail, postage prepaid, to Guarantor (at Guarantor's address
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indicated at the beginning of this Guaranty) or the Bank (at its address
indicated in Section VIII of the Loan Agreement), or to such other address as
any party may designate by written notice to the other party. Each notice,
request and demand shall be deemed given or made, if sent by mail, upon the
earlier of the date of receipt or five (5) days after deposit in the U.S. Mail,
certified and postage prepaid, or if delivered personally, upon delivery.
XII. Guarantor Duties. Subject to the provisions of Section 2(b) hereof,
Guarantor shall upon notice or demand by the Bank promptly and with due
diligence, pay all and satisfy all Obligations for the benefit of the Bank in
the event of the occurrence of any Event of Default.
XIII. Remedies. Subject to the provisions of Section 2(b) hereof, upon the
failure of Guarantor to fulfill its duty to pay and satisfy all Obligations as
required hereunder, the Bank shall have available all of the remedies of a
creditor of Guarantor under all applicable law, and without limiting the
generality of the foregoing, the Bank may, at its option and without further
notice or demand declare any Obligation to be immediately due and payable.
XIV. Attorney Fees, Cost and Expenses. Guarantor shall pay all reasonable
costs of collection and reasonable attorney's fees, including reasonable
attorney's fees in connection with any suit, mediation or arbitration
proceeding, out of court payment agreement, trial, appeal, bankruptcy
proceedings or otherwise, incurred or paid by the Bank in enforcing the payment
of any Obligation.
XV. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED INSTRUMENTS,
AGREEMENTS OR DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED
TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF
J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL
RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES
SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION. ANY PARTY TO THIS AGREEMENT MAY BRING AN ACTION, INCLUDING
A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
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A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN NEW YORK
COUNTY AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF
J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION,
THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION
HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION;
FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED
TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL
BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE
STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS
AGREEMENT OR (II) BE A WAIVER BY THE BANK OF THE PROTECTION AFFORDED TO IT
BY 12 U.S.C. ss. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III)
LIMIT THE RIGHT OF THE BANK HERETO (A) TO FORECLOSE AGAINST ANY REAL OR
PERSONAL PROPERTY COLLATERAL, OR (B) TO OBTAIN FROM A COURT PROVISIONAL OR
ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF
POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE BANK MAY EXERCISE
FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY
REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING
BROUGHT PURSUANT TO THIS AGREEMENT. THE INSTITUTION OR MAINTENANCE OF AN
ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL NOT
CONSTITUTE A WAIVER OF THE RIGHTS OF ANY PARTY, INCLUDING THE CLAIMANT IN
ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM
OCCASIONING RESORT TO SUCH REMEDIES.
XVI. Controlling Document. To the extent that this Guaranty conflicts with
or is in any way incompatible with any provision of any other Loan Document, the
terms of the Note shall govern over any issue addressed therein, and issues not
addressed in the Note shall be governed by the terms of the Loan Document that
most specifically addresses such issues.
XVII. Notice of Final Agreement. THIS WRITTEN GUARANTY REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
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CONTEMPORANEOUS, OR SUBSEQUENTIAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be executed
on the 26th day of June, 1998.
Guarantor:
______________________________
Name: Xxxxxxxx X. Xxxxxxxxx
