EXHIBIT 10.5
EXHIBIT E
GUARANTY
THIS GUARANTY (the "Guaranty") is executed as of [________], 2004, by
XXXXXXXXXXX INDUSTRIES, INC., an Indiana Corporation (the "Guarantor"), in favor
of FORETHOUGHT LIFE INSURANCE COMPANY, an Indiana corporation ("FLIC").
RECITALS:
WHEREAS, FFS Holdings, Inc., a Delaware corporation ("HoldCo") and the
Guarantor have entered into a Stock Purchase Agreement, dated as of February
[__], 2004 (the "Stock Purchase Agreement"), pursuant to which the Guarantor has
sold to HoldCo or to one or more of its Affiliates all of the outstanding common
shares of Forethought Financial Services, Inc., an Indiana corporation, FLIC and
Forethought Life Assurance Company, an Indiana corporation;
WHEREAS, prior to the consummation of the transactions contemplated in the
Stock Purchase Agreement, FLIC owned a 65% membership interest in Cornerstone
Partners I, LLC ("Cornerstone I") pursuant to the First Amended and Restated
Limited Liability Company Agreement of Cornerstone Partners I, LLC, dated
October 1, 2002, and a 65% membership interest in Cambridge Hotel, LLC, formerly
a wholly-owned subsidiary of Cornerstone I ("Cornerstone II"), pursuant to the
First Amended and Restated Limited Liability Company Agreement of Cambridge
Hotel, LLC, dated October 1, 2002.
WHEREAS, as contemplated in the Stock Purchase Agreement, Guarantor has
acquired certain real estate interests from FLIC, including FLIC's 65%
membership interest in each of Cornerstone I and Cornerstone II.
WHEREAS, Cornerstone I executed a secured promissory note in the principal
amount of $22,750,000, dated as of June 8, 2001, in favor of Massachusetts
Mutual Life Insurance Company (the "Mandarin Note"), for the purchase and
operation of the Mandarin Hotel in San Francisco, California, and secured by a
Deed of Trust and Security Agreement and Fixture Filing, dated as of June 8,
2001, covering real property and other property described therein;
WHEREAS, FLIC and Massachusetts Mutual Life Insurance Company entered into
a Loan Participation Agreement, dated as of June 7, 2001 (the "Mandarin Note
Participation Agreement"), pursuant to which Massachusetts Mutual Life Insurance
Company sold FLIC an undivided 65% loan participation interest in the Mandarin
Note ("FLIC's Mandarin Note Participation Interest");
WHEREAS, Cornerstone I executed an unsecured promissory note in the
principal amount of $39,650,000, dated as of May 18, 2001, in favor of FLIC, for
the financing the construction of the Xxxxxxx Hotel in Cambridge, Massachusetts
(the "Xxxxxxx Note" and together with the Mandarin Note, the "Cornerstone
Notes");
WHEREAS, Cornerstone I's obligations under the Xxxxxxx Note were assigned
to and assumed by Cornerstone II under an Assignment and Assumption Agreement
among FLIC, Cornerstone I, and Cornerstone II, dated as of October 1, 2002;
WHEREAS, the execution and delivery of this Guaranty by the parties hereto
is a condition to the closing of the transaction contemplated by the Stock
Purchase Agreement;
NOW, THEREFORE, in consideration of the above premises and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the Guarantor, intending to be legally bound, does hereby agree as
follows:
Section 1. Definitions. Capitalized terms used herein and not defined
herein, unless otherwise indicated, have the respective meanings assigned to
them in the Stock Purchase Agreement.
Section 2. Guaranty. Guarantor does hereby fully, irrevocably and
unconditionally guaranty the due, regular and punctual payment of all principal,
interest, and other sums of any kind, nature or description whatsoever that
Cornerstone I and Cornerstone II (collectively, the "Original Obligors"), or
either of them, owe (whether at maturity or earlier, by reason of acceleration
or otherwise, and at all times thereafter) under FLIC's Mandarin Note
Participation Interest or under the Xxxxxxx Note (collectively, the "Guaranteed
Obligations"); provided, however, that any pre-payment fees, penalties or
similar expenses relating to the pre-payment or refinancing of the Cornerstone
Notes shall be excluded from this Guaranty. This is a guarantee of payment and
not of collection. If any of the Original Obligors fails to pay any Guaranteed
Obligation, Guarantor will pay such Guaranteed Obligation forthwith directly to
FLIC upon FLIC's demand therefor in accordance with Sections 4 and 10.
Section 3. Term. The obligations of the Guarantor as to the Guaranteed
Obligations are continuing and irrevocable, and shall continue in full force and
effect against the Guarantor until the Guaranteed Obligations have been
indefeasibly repaid in full. Notwithstanding anything in this Guaranty to the
contrary, this Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any portion of the Guaranteed
Obligations is revoked, terminated, rescinded or reduced or must otherwise be
restored or returned upon the insolvency, bankruptcy or reorganization of either
of the Original Obligors or any other person or entity or otherwise, as if such
payment had not been made and whether or not FLIC is in possession of or has
released this Guaranty and regardless of any prior revocation, rescission,
termination or reduction.
Section 4. Enforcement of Guaranty. FLIC shall give Guarantor written
notice of non-payment of an obligation due and payable by an Original Obligor
under the Cornerstone Notes at the same time it gives notice of such non-payment
to the applicable Original Obligor in accordance with the related Cornerstone
Note. Guarantor shall have the right to cure a default (to the extent capable of
cure by Guarantor) under the applicable Cornerstone Note within the cure period
provided for therein, if any (the "Cure Period"). This Guaranty shall be
enforceable against the Guarantor only at written notice to Guarantor stating
that the amount claimed has become due and payable to FLIC by the Original
Obligors and remains unpaid after the expiration of any applicable Cure Period
(the "Payment Demand"). All payments to be made and obligations to be performed
hereunder shall be payable to FLIC within 10 Business Days after receipt of the
Payment Demand. All payments by the Guarantor hereunder shall be paid in full,
without setoff or counterclaim or any deduction or withholding whatsoever,
including, without limitation, for any and all present and future taxes.
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Section 5. Authorization; Other Agreements. Subject to Section 4, FLIC is
hereby authorized, without notice to, or demand upon, the Guarantor, which
notice and demand requirements each are expressly waived hereby, and without
discharging or otherwise affecting the Guaranteed Obligations of the Guarantor
hereunder (which Guaranteed Obligations shall remain absolute and unconditional
notwithstanding any such action or omission to act), from time to time, to do
each of the following:
(a) supplement, renew, extend or otherwise change the time for
payment of, or other terms relating to, the Guaranteed Obligations, or any part
of them, or otherwise modify, amend or change the terms of any Cornerstone Notes
or other agreement, document or instrument now or hereafter executed by the
Original Obligors or any of them, other than any increase of principal or the
rate of interest thereon;
(b) waive or otherwise consent to noncompliance with any provision
of any instrument evidencing the Guaranteed Obligations, or any part thereof, or
any other instrument or agreement in respect of the Guaranteed Obligations
(including the Cornerstone Notes);
(c) accept partial payments on the Guaranteed Obligations;
(d) receive, take and hold additional security or collateral for the
payment of the Guaranteed Obligations or any part of them and exchange, enforce,
waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate,
transfer, otherwise alter and release any such additional security or
collateral;
(e) settle, release, compromise, collect or otherwise liquidate the
Guaranteed Obligations or accept, substitute, release, exchange or otherwise
alter, affect or impair any security or collateral for the Guaranteed
Obligations or any part of them or any other guaranty therefor, in any manner;
(f) add, release or substitute any one or more other guarantors,
makers or endorsers of the Guaranteed Obligations or any part of them and
otherwise deal with the Original Obligors or any other guarantor, maker or
endorser;
(g) apply to the Guaranteed Obligations any payment or recovery (x)
from the Original Obligors, from any other guarantor, maker or endorser of the
Guaranteed Obligations or any part of them or (y) from any Guarantor in such
order as provided herein, in each case whether such Guaranteed Obligations are
secured or unsecured or guaranteed or not guaranteed by others;
(h) apply to the Guaranteed Obligations any payment or recovery from
the Guarantor of any sum realized from security furnished by such Guarantor upon
its indebtedness to FLIC, whether or not such indebtedness relates to the
Guaranteed Obligations; and
(i) refund at any time any payment received by FLIC in respect of
any Guaranteed Obligations, and payment to such Guarantied Party of the amount
so refunded shall be fully guaranteed hereby even though prior thereto this
Guaranty shall have been cancelled or surrendered (or any release or termination
of any Collateral by virtue thereof), and such prior cancellation or surrender
shall not diminish, release, discharge, impair or otherwise affect the
Guaranteed Obligations of any Guarantor hereunder in respect of the amount so
refunded (and any Collateral so released or terminated shall be reinstated with
respect to such Guaranteed Obligations);
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even if any right of reimbursement or subrogation or other right or remedy of
any Guarantor is extinguished, affected or impaired by any of the foregoing
(including any election of remedies by reason of any judicial, non-judicial or
other proceeding in respect of the Guaranteed Obligations that impairs any
subrogation, reimbursement or other right of such Guarantor). For the avoidance
of doubt, the provisions in this Section 5 do not require the Original Obligors
to agree to do any of the foregoing.
Section 6. Guaranty Absolute and Unconditional. The Guarantor hereby
waives any defense of a surety or guarantor or any other obligor on any
Guaranteed Obligations arising in connection with or in respect of any of the
following and hereby agrees that its Guaranteed Obligations under this Guaranty
are absolute and unconditional and shall not be discharged or otherwise affected
as a result of any of the following:
(a) the invalidity or unenforceability of any of the Original
Obligors' Guaranteed Obligations under the Cornerstone Notes or any other
agreement or instrument relating thereto, or any security for, or other guaranty
of the Guaranteed Obligations or any part of them, or the lack of perfection or
continuing perfection or failure of priority of any security for the Guaranteed
Obligations or any part of them;
(b) the absence of any attempt to collect the Guaranteed Obligations
or any part of them from the Original Obligors or other action to enforce the
same;
(c) failure by FLIC to take any steps to perfect and maintain any
Lien on, or to preserve any rights to, any Collateral;
(d) FLIC's election, in any proceeding instituted under chapter 11
of the Bankruptcy Code, of the application of Section 1111(b)(2) of the
Bankruptcy Code;
(e) any borrowing or grant of a lien by the Original Obligors, as
debtor-in-possession, or extension of credit, under Section 364 of the
Bankruptcy Code;
(f) the disallowance, under Section 502 of the Bankruptcy Code, of
all or any portion of FLIC's claim (or claims) for repayment of the Guaranteed
Obligations ;
(g) any use of cash collateral under Section 363 of the Bankruptcy
Code;
(h) any agreement or stipulation as to the provision of adequate
protection in any bankruptcy proceeding;
(i) the avoidance of any lien in favor of the FLIC or any of them
for any reason;
(j) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced by or
against the Original Obligors, any Guarantor or any of the Original Obligors'
other Subsidiaries, including any discharge of, or bar or stay against
collecting, any Guaranteed Obligation (or any part of them or interest thereon)
in or as a result of any such proceeding;
(k) failure by FLIC to file or enforce a claim against the Original
Obligors or its estate in any bankruptcy or insolvency case or proceeding;
(l) any action taken by FLIC if such action is authorized hereby;
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(m) any election following the occurrence of an event of default by
FLIC to proceed separately against the personal property collateral in
accordance with it's rights under the UCC or, if the collateral consists of both
personal and real property, to proceed against such personal and real property
in accordance with such Guarantied Party's rights with respect to such real
property; or
(n) any other circumstance that might otherwise constitute a legal
or equitable discharge or defense of a surety or guarantor or any other obligor
on any Guaranteed Obligations, other than the payment in full of the Guaranteed
Obligations.
Section 7. Waivers. Other than for the notices to Guarantor set forth in
this Agreement, Guarantor hereby waives diligence, promptness, presentment,
demand for payment or performance and protest and notice of protest, notice of
acceptance and any other notice in respect of the Guaranteed Obligations or any
part of them, and any defense arising by reason of any disability or other
defense of the Original Obligors. Guarantor shall not, until the Guaranteed
Obligations are irrevocably paid in full, assert any claim or counterclaim it
may have against the Original Obligors or set off any of its Guaranteed
Obligations to the Original Obligors against any Guaranteed Obligations of the
Original Obligors to it. In connection with the foregoing, Guarantor covenants
that its Guaranteed Obligations hereunder shall not be discharged, except by
complete performance.
Section 8. Subrogation. Upon payment of the Guaranteed Obligations to FLIC
in full, the Guarantor shall be subrogated to the rights of FLIC against the
Original Obligors with respect to the Guaranteed Obligations, and FLIC agrees to
take at the Guarantor's expense such steps as the Guarantor may reasonably
request to implement such subrogation.
Section 9. Representations and Warranties of Guarantor. Guarantor hereby
represents and warrants to FLIC that it has all necessary corporate power and
authority to enter into this Guaranty, this Guaranty has been duly executed and
delivered by Guarantor and constitutes a valid and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its terms.
Section 10. Notices. Notices under this Guaranty shall be deemed received
if sent to the address specified below: (i) on the day received if served by
overnight express delivery, (ii) on the next Business Day if served by facsimile
transmission when sender has machine confirmation that facsimile was transmitted
to the correct fax number listed below; it being understood and agreed, however,
that a Payment Demand shall not be made by facsimile transmission, and (iii)
five Business Days after mailing if sent by certified, first class mail, return
receipt requested. Any party hereto may change its address to which notice is
given hereunder by providing notice thereof in accordance with this Section 10.
If to FLIC:
[ ]
[ ]
[ ]
Facsimile: [ ]
Attention: [ ]
If to Guarantor:
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[ ]
[ ]
[ ]
Facsimile: [ ]
Attention: [ ]
Section 11. Entire Agreement. This Guaranty shall constitute the entire
understanding of the parties with respect to the subject matter hereof, and
supersedes all prior agreements, whether written or oral, with respect thereto.
Section 12. Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
Section 13. Assignment; Binding Effect. This Guaranty shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors, permitted assigns and legal representatives. This Guaranty is
assignable by FLIC in connection with an assignment of the Cornerstone Notes or
FLIC's Mandarin Note Participation Interest to permitted assignees thereof. Any
assignment in violation of this Section 13 shall be void and shall have no force
and effect, it being understood for the avoidance of doubt that in the event
that a party shall merge or consolidate into another Person or enter into a
business combination with another Person, such merger, consolidation or business
combination shall not be deemed to be an assignment and, accordingly, no consent
of any Person shall be required hereunder.
Section 14. Severability. Whenever possible, each provision or portion of
any provision of this Guaranty will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of any
provision of this Guaranty is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
Section 15. Waivers and Amendments. This Guaranty may be amended,
superseded, cancelled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by each of the parties or, in the case of a
waiver, by the party waiving compliance.
Section 16. Effect of Headings. The headings of the Articles and Sections
of this Agreement have been inserted for convenience of reference only and shall
not be construed as a part of this Agreement.
Section 17. Counterparts. This Guaranty may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
Section 18. No Third-Party Beneficiaries. Except as otherwise provided in
this Guaranty, nothing in this Guaranty will confer any rights upon any Person
that is not a party or a successor or permitted assignee of a party to this
Guaranty.
IN WITNESS WHEREOF, the Guarantor has executed and delivered this Guaranty
on the date first above written.
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XXXXXXXXXXX INDUSTRIES, INC.
By: _______________________________________
Name:
Title:
Accepted and Agreed to:
FORETHOUGHT LIFE INSURANCE COMPANY
By: ______________________________
Name:
Title:
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