LOAN NO. 400030964
GUARANTY
This GUARANTY ("Guaranty") is executed as of August 14, 1998, by JANUS
AMERICAN GROUP, INC., a Delaware corporation (singularly and collectively
referred to as "Guarantor"), for the benefit of AMRESCO CAPITAL, L.P., a
Delaware limited partnership ("Lender").
A. JAGI XXXXXXXXX - XXXXXX, LLC, a Delaware limited liability company
("Borrower"), is indebted to Lender with respect to a loan ("Loan") pursuant to
that certain Note dated of even date herewith, payable to the order of Lender in
the original principal amount of $13,300,000 (together with all renewals,
modifications, increases and extensions thereof, the "Note"), which is secured
by the liens and security interests of that certain Mortgage and Security
Agreement, of even date herewith granted by Borrower to Lender with respect to
certain property located in the Village of Boston Heights, County of Summit, and
State of Ohio (the "Mortgage"), and further evidenced, secured or governed by
the other Loan Documents (as defined in the Note); and
B. Lender is not willing to make the Loan, or otherwise extend credit, to
Borrower unless Guarantor unconditionally guarantees payment and performance to
Lender of the Guaranteed Obligations (as herein defined); and
C. Guarantor is the owner of a direct or indirect interest in Borrower, and
Guarantor will directly benefit from Lender's making the Loan to Borrower.
NOW, THEREFORE, as an inducement to Lender to make the Loan to Borrower
thereunder, and to extend such additional credit as Lender may from time to time
agree to extend under the Loan Documents, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:
ARTICLE I
NATURE AND SCOPE OF GUARANTY
I.1 Guaranty of Obligation. Guarantor hereby irrevocably and
unconditionally guarantees to Lender (and its successors and assigns), jointly
and severally, the payment and performance of the Guaranteed Obligations as and
when the same shall be due and payable, whether by lapse of time, by
acceleration of maturity or otherwise. Guarantor hereby irrevocably and
unconditionally covenants and agrees that it is liable, jointly and severally,
for the Guaranteed Obligations as a primary obligor, and that each Guarantor
shall fully perform, jointly and severally, each and every term and provision
hereof.
I.2 Definition of Guaranteed Obligations. As used herein, the term
"Guaranteed Obligations" shall mean the unpaid balance of the Debt (as defined
in the Note) in the event of (i) any fraud or material misrepresentation by
Borrower or any Guarantor in connection with the Loan or (ii) Borrower's failure
to make the first full payment of principal and interest due under the Note. In
addition, the Guaranteed Obligations shall also include and Guarantor shall also
be liable for, and shall indemnify, defend and hold Lender harmless from and
against, any and all loss, cost, expense, damage, claim or other obligation
(including without limitation reasonable attorney=s fees and costs of defense)
incurred or suffered by Lender and arising out of or in connection with the
matters listed in subparagraph (a) through (k) immediately below.
(a) any breach by Borrower of the Environmental Agreement (as defined in
the Note), including the indemnification provisions contained therein;
(b) Borrower's failure to obtain Lender's prior written consent to (a) any
subordinate financing or any other encumbrance on the Mortgaged Property (as
defined in the Mortgage), or (b) any transfer of the Mortgaged Property or
majority ownership in Borrower in violation of the Mortgage;
(c) any litigation or other legal proceeding related to the Debt that
delays or impairs Lender's ability to preserve, enforce or foreclose its lien on
the Security Property (as defined in the Note), including, but not limited to,
the filing of a voluntary or involuntary petition concerning Borrower under 11
U.S.C. ' 101 et seq. (the "Bankruptcy Code"), in which action a claim,
counterclaim, or defense is asserted against Lender, other than any litigation
or other legal proceeding in which a final, non-appealable judgment for money
damages or injunctive relief is entered against Lender;
(d) Borrower's failure to pay required taxes, assessments, and insurance
premiums payable with respect to the Mortgaged Property or to maintain the
required escrows therefor, to the extent that monies are not paid by Borrower in
escrow for the payment of such amounts, except for any amounts applicable to the
period after foreclosure of Lender=s lien on the Mortgaged Property, or the
delivery by Borrower of a deed to the Mortgaged Property in lieu of foreclosure
(which deed has been accepted by Lender in writing), or the appointment of a
receiver for the Mortgaged Property;
(e) the gross negligence or willful misconduct of Borrower, its agents,
affiliates, officers or employees which causes or results in a diminution, or
loss of value, of the Security Property that is not reimbursed by insurance or
which gross negligence or willful misconduct exposes Lender to claims, liability
or costs of defense in any litigation or other legal proceeding;
(f) the seizure or forfeiture of the Security Property, or any portion
thereof, or Lender's interest therein, resulting from criminal wrongdoing by any
person or entity other than Lender under any federal, state or local law;
(g) (i) any physical waste of the Mortgaged Property caused by the
intentional or grossly negligent act(s) or omission(s) of Borrower, its agents,
affiliates, officers and employees, (ii) the failure by Borrower to maintain,
repair or restore any part of the Mortgaged Property as may be required by the
Mortgage or any of the other Loan Documents to the extent
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of all gross revenues that have been generated by the Mortgaged Property
following the date which is eighteen (18) months prior to notice to Borrower
from Lender of such failure to maintain, repair or restore any part of the
Mortgaged Property and that have not been applied to pay any portion of the
Debt, reasonable and customary operating expenses and capital expenditures for
the Mortgaged Property paid to third parties not affiliated (directly or
indirectly) with Borrower, taxes and insurance premiums for the Mortgaged
Property and escrows deposited with Lender, or (iii) the removal or disposal of
any portion of the Mortgaged Property after an Event of Default under the Loan
Documents (as defined in the Loan Documents) to the extent such Mortgaged
Property is not replaced by Borrower with like property of equivalent value,
function and design;
(h) the misapplication or conversion by Borrower of any insurance proceeds
paid by reason of any loss, damage or destruction to the Mortgaged Property; and
any awards or amounts received in connection with the condemnation of all or a
portion of the Mortgaged Property and not used by Borrower for restoration or
repair of the Mortgaged Property;
(i) Borrower's failure to pay in accordance with the terms of the Mortgage
any charges for labor or materials or other charges for work performed or
materials furnished prior to foreclosure that can create liens on any portion of
the Mortgaged Property, to the extent of the amount rightfully claimed by the
lien claimant, or found in any legal proceeding to be owed to the lien claimant,
and not so paid;
(j) Borrower=s failure to deliver any security deposits collected with
respect to the Mortgaged Property to Lender or any other party entitled to
receive such security deposits under the Loan Documents following an Event of
Default; and
(k) any rents (including advanced or prepaid rents), issues, profits,
accounts or other amounts generated by or related to the Mortgaged Property
attributable to, or accruing after an Event of Default, which amounts were
collected by Borrower or its property manager and not turned over to the Lender
or used to pay unaffiliated third parties for reasonable and customary operating
expenses and capital expenditures for the Mortgaged Property, taxes and
insurance premiums with respect to the Mortgaged Property and any other amounts
required to be paid under the Loan Documents with respect to the Mortgaged
Property.
I.3 Nature of Guaranty. This Guaranty is an irrevocable, absolute,
continuing guaranty of payment and performance, is joint and several and is not
a guaranty of collection. This Guaranty may not be revoked by Guarantor and
shall continue to be effective with respect to any Guaranteed Obligations
arising or created after any attempted revocation by Guarantor and after (if
Guarantor is a natural person) Guarantor's death (in which event this Guaranty
shall be binding upon Guarantor's estate and Guarantor's legal representatives
and heirs). The fact that at any time or from time to time the Guaranteed
Obligations may be increased or reduced shall not release or discharge the
obligation of Guarantor to Lender with respect to Guaranteed Obligations. This
Guaranty may be enforced by Lender and any subsequent holder of the Note and
shall not be discharged by the assignment or negotiation of all or part of the
Note.
I.4 Guaranteed Obligations Not Reduced by Offset. The Guaranteed
Obligations and the liabilities and obligations of Guarantor to Lender
hereunder, shall not be reduced, discharged
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or released because or by reason of any existing or future offset, claim or
defense of Borrower, or any other party, against Lender or against payment of
the Guaranteed Obligations, whether such offset, claim or defense arises in
connection with the Guaranteed Obligations (or the transactions creating the
Guaranteed Obligations) or otherwise.
I.5 Payment by Guarantor. If all or any part of the Guaranteed Obligations,
as limited by Paragraph 1.2, shall not be punctually paid when due, whether at
maturity or earlier by acceleration or otherwise, Guarantor shall, immediately
upon demand by Lender, and without presentment, protest, notice of protest,
notice of non-payment, notice of intention to accelerate the maturity, notice of
acceleration of the maturity, or any other notice whatsoever, pay in lawful
money of the United States of America, the amount due on the Guaranteed
Obligations to Lender at Lender's address as set forth herein. Such demand(s)
may be made at any time coincident with or after the time for payment of all or
part of the Guaranteed Obligations, and may be made from time to time with
respect to the same or different items of Guaranteed Obligations. Such demand
shall be deemed made, given and received in accordance with the notice
provisions hereof.
I.6 No Duty to Pursue Others. It shall not be necessary for Lender (and
Guarantor hereby waives any rights which Guarantor may have to require Lender),
in order to enforce such payment by Guarantor, first to (i) institute suit or
exhaust its remedies against Borrower or others liable on the Loan or the
Guaranteed Obligations or any other person, (ii) enforce or exhaust any of
Lender's rights or remedies against any collateral which shall ever have been
given to secure the Loan, (iii) enforce Lender's rights or remedies available to
Lender against any other guarantors of the Guaranteed Obligations, (iv) join
Borrower or any others liable on the Guaranteed Obligations in any action
seeking to enforce this Guaranty, or (v) resort to any other means of obtaining
payment of the Guaranteed Obligations. Lender shall not be required to mitigate
damages or take any other action to reduce, collect or enforce the Guaranteed
Obligations.
I.7 Waivers. Guarantor agrees to the provisions of the Loan Documents, and
hereby waives notice of (i) any loans or advances made by Lender to Borrower,
(ii) acceptance of this Guaranty, (iii) any amendment or extension of the Note
or of any other Loan Documents, (iv) the execution and delivery by Borrower and
Lender of any other loan or credit agreement or of Borrower's execution and
delivery of any promissory notes or other documents arising under the Loan
Documents or in connection with the Mortgaged Property, (v) the occurrence of
any breach by Borrower or Event of Default, (vi) Lender's transfer or
disposition of the Guaranteed Obligations, or any part thereof, (vii) sale or
foreclosure (or posting or advertising for sale or foreclosure) of any
collateral for the Guaranteed Obligations, (viii) protest, proof of non-payment
or default by Borrower, or (ix) any other action at any time taken or omitted by
Lender, and, generally, all demands and notices of every kind in connection with
this Guaranty, the Loan Documents, any documents or agreements evidencing,
securing or relating to any of the Guaranteed Obligations and the obligations
hereby guaranteed.
I.8 Payment of Expenses. In the event that Guarantor should breach or fail
to timely perform any provisions of this Guaranty, Guarantor shall, immediately
upon demand by Lender, pay Lender all costs and expenses (including court costs
and reasonable attorneys' fees) incurred by Lender in the enforcement hereof or
the preservation of Lender's rights hereunder. The
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covenant contained in this section shall survive the payment and performance of
the Guaranteed Obligations.
I.9 Effect of Bankruptcy. In the event that, pursuant to any insolvency,
bankruptcy, reorganization, receivership or other debtor relief law, or any
judgment, order or decision thereunder, Lender must rescind or restore any
payment, or any part thereof, received by Lender in satisfaction of the
Guaranteed Obligations, as set forth herein, any prior release or discharge from
the terms of this Guaranty given to Guarantor by Lender shall be without effect,
and this Guaranty shall remain in full force and effect. It is the intention of
Borrower and Guarantor that Guarantor's obligations hereunder shall not be
discharged except by Guarantor's performance of such obligations and then only
to the extent of such performance.
I.10 Deferment of Rights of Subrogation, Reimbursement and Contribution.
(a) Notwithstanding any payment or payments made by any Guarantor
hereunder, no Guarantor will assert or exercise any right of Lender or of such
Guarantor against Borrower to recover the amount of any payment made by such
Guarantor to Lender by way of subrogation, reimbursement, contribution,
indemnity, or otherwise arising by contract or operation of law, and such
Guarantor shall not have any right of recourse to or any claim against assets or
property of Borrower, whether or not the obligations of Borrower have been
satisfied, all of such rights being herein expressly waived by such Guarantor.
Each Guarantor agrees not to seek contribution or indemnity or other recourse
from any other guarantor. If any amount shall nevertheless be paid to a
Guarantor by Borrower or another Guarantor prior to payment in full of the
Obligations (hereinafter defined), such amount shall be held in trust for the
benefit of Lender and shall forthwith be paid to Lender to be credited and
applied to the Obligations, whether matured or unmatured. The provisions of this
paragraph shall survive the termination of this Guaranty, and any satisfaction
and discharge of Borrower by virtue of any payment, court order or any
applicable law.
(b) Notwithstanding the Provisions of Section 1.10(a), each Guarantor shall
have and be entitled to (1) all rights of subrogation otherwise provided by
applicable law in respect of any payment it may make or be obligated to make
under this Guaranty and (2) all claims it would have against Borrower in the
absence of Section 1.10(a) and to assert and enforce same, in each case on and
after, but at no time prior to, the date (the ASubrogation Trigger Date@) which
is 91 days after the date on which all sums owed to Lender under the Loan
Documents (the AObligations@) have been paid in full, if and only if (x) no
Event of Default of the type described in Section 23(f) or 23(g) of the Mortgage
with respect to Lender or any other Guarantor has existed at any time on and
after the date of this Guaranty to and including the Subrogation Trigger Date
and (y) the existence of each Guarantor=s rights under this Section 1.10(b)
would not make such Guarantor a creditor (as defined in the Code, as such term
is hereinafter defined) of Borrower or any other Guarantor in any insolvency,
bankruptcy, reorganization or similar proceeding commenced on or prior to the
Subrogation Trigger Date.
I.11 Bankruptcy Code Waiver. It is the intention of the parties that the
Guarantor shall not be deemed to be a "creditor" or "creditors" (as defined in
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code [the "Bankruptcy Code"]) of
Borrower, or any such guarantor, by reason of the existence of this Guaranty, in
the event that Borrower or any such guarantor, becomes a debtor in
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any proceeding under the Bankruptcy Code, and in connection herewith, Guarantor
hereby waives any such right as a "creditor" under the Bankruptcy Code. This
waiver is given to induce Lender to make the Loan evidenced by the Note to
Borrower. After the Loan is paid in full and there shall be no obligations or
liabilities under this Guaranty outstanding, this waiver shall be deemed to be
terminated.
I.12 "Borrower." The term "Borrower" as used herein shall include any new
or successor corporation, association, partnership (general or limited), joint
venture, trust or other individual or organization formed as a result of any
merger, reorganization, sale, transfer, devise, gift or bequest of Borrower or
any interest in Borrower.
ARTICLE II
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR'S OBLIGATIONS
Guarantor hereby consents and agrees to each of the following, and agrees
that Guarantor's obligations under this Guaranty shall not be released,
diminished, impaired, reduced or adversely affected by any of the following, and
waives any common law, equitable, statutory or other rights (including without
limitation rights to notice) which Guarantor might otherwise have as a result of
or in connection with any of the following:
II.1 Modifications. Any renewal, extension, increase, modification,
alteration or rearrangement of all or any part of the Guaranteed Obligations,
Note, Loan Documents, or other document, instrument, contract or understanding
between Borrower and Lender, or any other parties, pertaining to the Guaranteed
Obligations or any failure of Lender to notify Guarantor of any such action.
II.2 Adjustment. Any adjustment, indulgence, forbearance or compromise that
might be granted or given by Lender to Borrower or any Guarantor.
II.3 Condition of Borrower or Guarantor. The insolvency, bankruptcy,
arrangement, adjustment, composition, liquidation, disability, dissolution or
lack of power of Borrower, Guarantor or any other party at any time liable for
the payment of all or part of the Guaranteed Obligations; or any dissolution of
Borrower or Guarantor, or any sale, lease or transfer of any or all of the
assets of Borrower or Guarantor, or any changes in the shareholders, partners or
members of Borrower or Guarantor; or any reorganization of Borrower or
Guarantor.
II.4 Invalidity of Guaranteed Obligations. The invalidity, illegality or
unenforceability of all or any part of the Guaranteed Obligations, or any
document or agreement executed in connection with the Guaranteed Obligations,
for any reason whatsoever, including without limitation the fact that (i) the
Guaranteed Obligations, or any part thereof, exceeds the amount permitted by
law, (ii) the act of creating the Guaranteed Obligations or any part thereof is
ultra xxxxx, (iii) the officers or representatives executing the Note or the
other Loan Documents or otherwise creating the Guaranteed Obligations acted in
excess of their authority, (iv) the Guaranteed Obligations violate applicable
usury laws, (v) Borrower has valid defenses, claims or
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offsets (whether at law, in equity or by agreement) which render the Guaranteed
Obligations wholly or partially uncollectible from Borrower, (vi) the creation,
performance or repayment of the Guaranteed Obligations (or the execution,
delivery and performance of any document or instrument representing part of the
Guaranteed Obligations or executed in connection with the Guaranteed
Obligations, or given to secure the repayment of the Guaranteed Obligations) is
illegal, uncollectible or unenforceable, or (vii) the Note or any of the other
Loan Documents have been forged or otherwise are irregular or not genuine or
authentic, it being agreed that Guarantor shall remain liable hereon regardless
of whether Borrower or any other person be found not liable on the Guaranteed
Obligations or any part thereof for any reason.
II.5 Release of Obligors. Any full or partial release of the liability of
Borrower on the Guaranteed Obligations, or any part thereof, or of any
co-guarantors, or any other person or entity now or hereafter liable, whether
directly or indirectly, jointly, severally, or jointly and severally, to pay,
perform, guarantee or assure the payment of the Guaranteed Obligations, or any
part thereof, it being recognized, acknowledged and agreed by Guarantor that
Guarantor may be required to pay the Guaranteed Obligations in full without
assistance or support of any other party, and Guarantor has not been induced to
enter into this Guaranty on the basis of a contemplation, belief, understanding
or agreement that other parties will be liable to pay or perform the Guaranteed
Obligations, or that Lender will look to other parties to pay or perform the
Guaranteed Obligations.
II.6 Other Collateral. The taking or accepting of any other security,
collateral or guaranty, or other assurance of payment, for all or any part of
the Guaranteed Obligations.
II.7 Release of Collateral. Any release, surrender, exchange,
subordination, deterioration, waste, loss or impairment (including without
limitation negligent, willful, unreasonable or unjustifiable impairment) of any
collateral, property or security, at any time existing in connection with, or
assuring or securing payment of, all or any part of the Guaranteed Obligations.
II.8 Care and Diligence. The failure of Lender or any other party to
exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of such
collateral, property or security, including but not limited to any neglect,
delay, omission, failure or refusal of Lender (i) to take or prosecute any
action for the collection of any of the Guaranteed Obligations, or (ii) to
foreclose, or initiate any action to foreclose, or, once commenced, prosecute to
completion any action to foreclose upon any security therefor, or (iii) to take
or prosecute any action in connection with any instrument or agreement
evidencing or securing all or any part of the Guaranteed Obligations.
II.9 Unenforceability. The fact that any collateral, security, security
interest or lien contemplated or intended to be given, created or granted as
security for the repayment of the Guaranteed Obligations, or any part thereof,
shall not be properly perfected or created, or shall prove to be unenforceable
or subordinate to any other security interest or lien, it being recognized and
agreed by Guarantor that Guarantor is not entering into this Guaranty in
reliance on, or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of any of the collateral for the
Guaranteed Obligations.
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II.10 Offset. The Note, the Guaranteed Obligations and the liabilities and
obligations of Guarantor to Lender hereunder, shall not be reduced, discharged
or released because of or by reason of any existing or future right of offset,
claim or defense of Borrower against Lender, or any other party, or against
payment of the Guaranteed Obligations, whether such right of offset, claim or
defense arises in connection with the Guaranteed Obligations (or the
transactions creating the Guaranteed Obligations) or otherwise.
II.11 Merger. The reorganization, merger or consolidation of Borrower into
or with any other corporation or entity.
II.12 Preference. Any payment by Borrower to Lender is held to constitute a
preference under bankruptcy laws, or for any reason Lender is required to refund
such payment or pay such amount to Borrower or someone else.
II.13 Other Actions Taken or Omitted. Any other action taken or omitted to
be taken with respect to the Loan Documents, the Guaranteed Obligations, or the
security and collateral therefor, whether or not such action or omission
prejudices Guarantor or increases the likelihood that Guarantor will be required
to pay the Guaranteed Obligations pursuant to the terms hereof, it is the
unambiguous and unequivocal intention of Guarantor that Guarantor shall be
obligated to pay the Guaranteed Obligations when due, notwithstanding any
occurrence, circumstance, event, action, or omission whatsoever, whether or not
contemplated, and whether or not otherwise or particularly described herein,
which obligation shall be deemed satisfied only upon the full and final payment
and satisfaction of the Guaranteed Obligations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into the Loan Documents and extend credit to
Borrower, Guarantor represents and warrants to Lender as follows:
III.1 Benefit. Guarantor is an affiliate of Borrower, is the owner of a
direct or indirect interest in Borrower, and has received, or will receive,
direct or indirect benefit from the making of this Guaranty with respect to the
Guaranteed Obligations.
III.2 Familiarity and Reliance. Guarantor is familiar with, and has
independently reviewed books and records regarding, the financial condition of
Borrower and is familiar with the value of any and all collateral intended to be
created as security for the payment of the Note or Guaranteed Obligations;
however, Guarantor is not relying on such financial condition or the collateral
as an inducement to enter into this Guaranty.
III.3 No Representation by Lender. Neither Lender nor any other party has
made any representation, warranty or statement to Guarantor in order to induce
Guarantor to execute this Guaranty.
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III.4 Guarantor's Financial Condition. As of the date hereof, and after
giving effect to this Guaranty and the contingent obligation evidenced hereby,
Guarantor is, and will be, solvent, and has and will have assets which, fairly
valued, exceed its obligations, liabilities (including contingent liabilities)
and debts, and has and will have property and assets sufficient to satisfy and
repay its obligations and liabilities.
III.5 Legality. The execution, delivery and performance by Guarantor of
this Guaranty and the consummation of the transactions contemplated hereunder do
not, and will not, contravene or conflict with any law, statute or regulation
whatsoever to which Guarantor is subject or constitute a default (or an event
which with notice or lapse of time or both would constitute a default) under, or
result in the breach of, any indenture, mortgage, deed of trust, charge, lien,
or any contract, agreement or other instrument to which Guarantor is a party or
which may be applicable to Guarantor. This Guaranty is a legal and binding
obligation of Guarantor and is enforceable in accordance with its terms, except
as limited by bankruptcy, insolvency or other laws of general application
relating to the enforcement of creditors' rights.
III.6 Survival. All representations and warranties made by Guarantor herein
shall survive the execution hereof.
III.7 Review of Documents. Guarantor has examined the Note and all of the
Loan Documents.
III.8 Litigation. Except as otherwise disclosed to Lender, there are no
proceedings pending or, so far as Guarantor knows, threatened before any court
or administrative agency which, if decided adversely to Guarantor, would
materially adversely affect the financial condition of Guarantor or the
authority of Guarantor to enter into, or the validity or enforceability of this
Guaranty.
III.9 Tax Returns. Guarantor has filed all required federal, state and
local tax returns and has paid all taxes as shown on such returns as they have
become due. No claims have been assessed and are unpaid with respect to such
taxes.
ARTICLE IV
SUBORDINATION OF CERTAIN INDEBTEDNESS
IV.1 Subordination of All Guarantor Claims. As used herein, the term
"Guarantor Claims" shall mean all debts and liabilities of Borrower to
Guarantor, whether such debts and liabilities now exist or are hereafter
incurred or arise, or whether the obligations of Borrower thereon be direct,
contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or liabilities be evidenced by note,
contract, open account, or otherwise, and irrespective of the person or persons
in whose favor such debts 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. The Guarantor Claims shall include without limitation
all rights and claims of Guarantor against Borrower (arising as a result of
subrogation or otherwise) as a result of Guarantor's payment of all or a portion
of the Guaranteed Obligations
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to the extent the provisions of Section 1.4 hereof are unenforceable. Upon the
occurrence of an Event of Default or the occurrence of an event which would,
with the giving of notice or the passage of time, or both, constitute an Event
of Default, Guarantor shall not receive or collect, directly or indirectly, from
Borrower or any other party any amount upon the Guarantor Claims.
IV.2 Claims in Bankruptcy. In the event of receivership, bankruptcy,
reorganization, arrangement, debtor's relief, or other insolvency proceedings
involving Guarantor as debtor, Lender shall have the right to prove its claim in
any such proceeding so as to establish its rights hereunder and receive directly
from the receiver, trustee or other court custodian dividends and payments which
would otherwise be payable upon Guarantor Claims. Guarantor hereby assigns such
dividends and payments to Lender. Should Lender receive, for application upon
the Guaranteed Obligations, any such dividend or payment which is otherwise
payable to Guarantor, and which, as between Borrower and Guarantor, shall
constitute a credit upon the Guarantor Claims, then upon payment to Lender in
full of the Guaranteed Obligations, Guarantor shall become subrogated to the
rights of Lender to the extent that such payments to Lender on the Guarantor
Claims have contributed toward the liquidation of the Guaranteed Obligations,
and such subrogation shall be with respect to that proportion of the Guaranteed
Obligations which would have been unpaid if Lender had not received dividends or
payments upon the Guarantor Claims.
IV.3 Payments Held in Trust. In the event that, notwithstanding anything to
the contrary in this Guaranty, Guarantor should receive any funds, payment,
claim or distribution which is prohibited by this Guaranty, Guarantor agrees to
hold in trust for Lender an amount equal to the amount of all funds, payments,
claims or distributions so received, and agrees that it shall have absolutely no
dominion over the amount of such funds, payments, claims or distributions so
received except to pay them promptly to Lender, and Guarantor covenants promptly
to pay the same to Lender.
IV.4 Liens Subordinate. Guarantor agrees that any liens, security
interests, judgment liens, charges or other encumbrances upon Borrower's assets
securing payment of the Guarantor Claims shall be and remain inferior and
subordinate to any liens, security interests, judgment liens, charges or other
encumbrances upon Borrower's assets securing payment of the Guaranteed
Obligations, regardless of whether such encumbrances in favor of Guarantor or
Lender presently exist or are hereafter created or attach. Without the prior
written consent of Lender, Guarantor shall not (i) exercise or enforce any
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, mortgages, deeds of trust, security
interest, collateral rights, judgments or other encumbrances on assets of
Borrower held by Guarantor.
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ARTICLE V
MISCELLANEOUS
V.1 Waiver. No failure to exercise, and no delay in exercising, on the part
of Lender, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right. The rights of Lender hereunder shall
be in addition to all other rights provided by law. No modification or waiver of
any provision of this Guaranty, nor consent to departure therefrom, shall be
effective unless in writing and no such consent or waiver shall extend beyond
the particular case and purpose involved. No notice or demand given in any case
shall constitute a waiver of the right to take other action in the same, similar
or other instances without such notice or demand.
V.2 Notices. Any notice, demand, statement, request or consent made
hereunder shall be in writing and shall be deemed to be received by the
addressee on the day such notice is tendered to a nationally recognized
overnight delivery service or on the third day following the day such notice is
deposited with the United States Postal Service first class certified mail,
return receipt requested, in either instance, addressed to the address, as set
forth below, of the party to whom such notice is to be given, or to such other
address as either party shall in like manner designate in writing. The addresses
of the parties hereto are as follows:
Guarantor:
JANUS AMERICAN GROUP, INC.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Lender:
AMRESCO CAPITAL, L.P.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000, XX #000
Xxxxxx, Xxxxx 00000-0000
Attn: Loan Servicing
V.3 Governing Law; Jurisdiction. This Guaranty shall be governed by and
construed in accordance with the laws of the State in which the real property
encumbered by the Mortgage is located and the applicable laws of the United
States of America. Guarantor hereby irrevocably submits to the jurisdiction of
any court of competent jurisdiction located in the state in which the Mortgaged
Property is located in connection with any proceeding out of or relating to this
Guaranty.
V.4 Invalid Provisions. If any provision of this Guaranty is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term of this Guaranty, such provision shall be fully severable and this
Guaranty shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Guaranty, and the
remaining provisions of this Guaranty shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Guaranty, unless such continued effectiveness of this
Guaranty, as modified, would be contrary to the basic understandings and
intentions of the parties as expressed herein.
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V.5 Amendments. This Guaranty may be amended only by an instrument in
writing executed by the party or an authorized representative of the party
against whom such amendment is sought to be enforced.
V.6 Parties Bound; Assignment. This Guaranty shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
assigns and legal representatives; provided, however, that Guarantor may not,
without the prior written consent of Lender, assign any of its rights, powers,
duties or obligations hereunder.
V.7 Headings. Section headings are for convenience of reference only and
shall in no way affect the interpretation of this Guaranty.
V.8 Recitals. The recital and introductory paragraphs hereof are a part
hereof, form a basis for this Guaranty and shall be considered prima facie
evidence of the facts and documents referred to therein.
V.9 Counterparts. To facilitate execution, this Guaranty may be executed in
as many counterparts as may be convenient or required. It shall not be necessary
that the signature or acknowledgment of, or on behalf of, each party, or that
the signature of all persons required to bind any party, or the acknowledgment
of such party, appear on each counterpart. All counterparts shall collectively
constitute a single instrument. It shall not be necessary in making proof of
this Guaranty to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, and the respective
acknowledgments of, each of the parties hereto. Any signature or acknowledgment
page to any counterpart may be detached from such counterpart without impairing
the legal effect of the signatures or acknowledgments thereon and thereafter
attached to another counterpart identical thereto except having attached to it
additional signature or acknowledgment pages.
V.10 Financial Statements: Guarantor shall furnish or cause to be furnished
to Lender the following:
(a) within ninety (90) days after the close of each fiscal year of
Guarantor, a balance sheet of Guarantor dated as of the close of such
fiscal year;
(b) contemporaneously with its delivery to the Internal Revenue
Service, copies of any and all tax returns, requests for extension and
other similar items; and
(c) from time to time, such additional financial statements and
financial information as Lender shall require.
All balance sheets shall include, among other things, disclosure of all
contingent liabilities and changes in financial condition, together with such
supporting schedules and documentation as Lender shall require. All balance
sheets shall be certified by Guarantor and by Guarantor's independent certified
public accountant.
V.11 Rights and Remedies. If Guarantor becomes liable for any indebtedness
owing by Borrower to Lender, by endorsement or otherwise, other than under this
Guaranty, such liability
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shall not be in any manner impaired or affected hereby and the rights of Lender
hereunder shall be cumulative of 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.
V.12 ENTIRETY. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT 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 IS INTENDED BY GUARANTOR AND LENDER AS A
FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, 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.
V.13 WAIVER OF RIGHT TO TRIAL BY JURY. GUARANTOR HEREBY AGREES NOT TO ELECT
A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THIS GUARANTY, THE MORTGAGE, OR THE OTHER LOAN DOCUMENTS,
OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY
GUARANTOR, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH
ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS
HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY GUARANTOR.
(The balance of this page is intentionally left blank.)
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EXECUTED under seal as of the day and year first above written.
GUARANTOR:
JANUS AMERICAN GROUP, INC., a
Delaware corporation
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
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SCHEDULE TO EXHIBIT 10.31
OTHER GUARANTIES
I.
------------------------------------------------------------ ---------------------------------------------------------
Name of Borrower JAGI Cleveland - Independence, LLC, a Delaware limited
liability company
------------------------------------------------------------ ---------------------------------------------------------
Amount of Note $21,800,000
------------------------------------------------------------ ---------------------------------------------------------
Property Location City of Independence, County of Cuyahoga, State of Ohio
------------------------------------------------------------ ---------------------------------------------------------
II.
------------------------------------------------------------ ---------------------------------------------------------
Name of Borrower JAGI Montose West LLC, a Delaware limited liability
company
------------------------------------------------------------ ---------------------------------------------------------
Amount of Note $3,500,000
------------------------------------------------------------ ---------------------------------------------------------
Property Location Township of Xxxxxx, County of Summit, State of Ohio
------------------------------------------------------------ ---------------------------------------------------------
III.
------------------------------------------------------------ ---------------------------------------------------------
Name of Borrower JAGI North Canton, LLC, a Delaware limited liability
company
------------------------------------------------------------ ---------------------------------------------------------
Amount of Note $5,400,000
------------------------------------------------------------ ---------------------------------------------------------
Property Location Township of Xxxxxxx, County of Xxxxx, State of Ohio
------------------------------------------------------------ ---------------------------------------------------------
