EXHIBIT 10.2
GUARANTY
GUARANTOR: Xxxxxxx X. Xxxxxx, c/o Fur Investors, LLC, 000 Xxxxxxx
Xxxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxx 00000 (the "Guarantor).
GUARANTEE: First Union Real Estate Equity Mortgage Investments, 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, an Ohio business trust (the
"Company").
PURCHASER: FUR Investors, LLC, 000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxx Xxxx 00000,x Delaware limited liability Company ("FUR").
1. GUARANTY. Guarantor guarantees to the Company the
full and immediate payment in cash of the Company Stock Escrowed Funds and the
Offer Escrowed Funds (as such terms are defined in the Escrow Agreement
contemplated by the Stock Purchase Agreement (the "Stock Purchase Agreement"),
dated the date hereof, between the Company and FUR) when due(the "Obligations")
This is a guaranty of payment and not of collection.
2. CONTINUING AND UNCONDITIONAL GUARANTY; TERMINATION.
This Guaranty is irrevocable, continuing, and unconditional. This Guaranty shall
terminate upon the earlier to occur of (i) deposit of the Obligations with the
escrow agent under the Escrow Agreement either by FUR or the Guarantor and (ii)
termination of the Stock Purchase Agreement.
3. GUARANTOR'S WAIVERS. (a) Guarantor's obligations
shall not be released, impaired or affected in any way by (i) FUR's bankruptcy,
reorganization or insolvency under any law or that of any other party, or by any
action of a trustee or other fiduciary in any such proceeding; (ii) other than
the Company with respect to its obligations under the Stock Purchase Agreement
and the agreements annexed thereto, failure of any party to perform their
obligations to FUR; or (iii) any amendment or modification to, or waiver of any
of the terms or conditions of the Escrow Agreement or the Stock Purchase
Agreement approved by FUR.
(b) WAIVERS OF NOTICE, ETC. The Guarantor waives
acceptance, assent and all rights of notice or demand including, without
limitation, (i) notice of acceptance of this Guaranty; (ii) FUR's nonpayment of
the Obligations; (iii) presentment, protest and demand for payment; and (iv) any
other notice, demand or condition to which Guarantor might otherwise be entitled
prior to the Company's reliance on or enforcement of this Guaranty.
4. EXPENSES. Guarantor agrees to reimburse the Company
on demand for all of the Company's expenses, costs, damages and losses of any
kind or nature, including without limitation actual attorneys' fees and
disbursements incurred by the Company in the successful enforcement of this
Guaranty.
5. NON-WAIVER BY THE COMPANY; MISCELLANEOUS. This is the
entire agreement between Guarantor and the Company with respect to the Guaranty.
This Guaranty may not be assigned by either party, shall inure to the benefit of
the Company and its successors and assigns, and shall be binding upon Guarantor
and its successors and assigns. All rights and
remedies of the Company are cumulative and no such right or remedy shall be
exclusive of any other right or remedy. No single, partial or delayed exercise
by the Company of any right or remedy shall preclude exercise by the Company at
any time at its sole option of the same or any other right or remedy of the
Company without notice. No course of dealing or other conduct, no oral agreement
or representation made by the Company or usage of trade shall operate as a
waiver of any right or remedy of the Company. No waiver or amendment of any
right or remedy of the Company or release by the Company shall be effective
unless made specifically in writing by the Company. This Guaranty shall be
governed by the laws of the State of New York, without regard to its principles
of conflict of laws. Each provision of this Guaranty shall be interpreted as
consistent with existing law and shall be deemed amended to the extent necessary
to comply with any conflicting law. If any provision is nevertheless held
invalid the other provisions shall remain in effect. Captions are solely for
convenience and are not part of the substance of this Guaranty.
6. GUARANTOR'S CONSENT TO JURISDICTION. In any action or
other legal proceeding relating to this Guaranty, Guarantor (a) consents to the
personal jurisdiction of any State or Federal court located in the State of New
York; (b) waives objection to the laying of venue; (c) waives personal service
of process and subpoenas; (d) consents to service of process and subpoenas by
registered or certified mail directed to Guarantor at the address set forth
above, with such service to be deemed completed five days after mailing; and (e)
consents to a final judgment hereunder being sued upon in any court having
jurisdiction.
7. WAIVER OF JURY TRIAL. Guarantor and the Company each
waive any right to trial by jury in any action with respect to this Guaranty.
GUARANTOR:
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Date: November 26, 2003
Witnessed by:
/s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Address: 000 Xxxxxxx Xxxxxxxxxx, Xxxxxxx, XX 00000
Date: November 26, 0000
XXXXX XXXXX XXXX XXXXXX EQUITY MORTGAGE INVESTMENTS
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
Date: November 26, 2003
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