X. Xxxxxxx Xxxxxx
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty") is made as of December 30,
1999 by X. Xxxxxxx Xxxxxx, an individual resident of the State of North
Carolina, ("Guarantor"), in favor of Xxx.xxx, Inc., a Maryland corporation
("Lender"), its successors and assigns.
WHEREAS, Lender and Employee Investors, LLC, a North Carolina limited
liability company ("Borrower"), are entering into concurrently herewith that
certain Promissory Note (herein called, as hereafter modified, supplemented,
extended, or renewed and in effect from time to time, the "Note"), a copy of
which is attached hereto as Exhibit A, which sets forth the terms and conditions
of a loan to Borrower from Lender (the "Loan").
WHEREAS, a condition precedent to Lender's making the Loan to Borrower
is Guarantor's execution and delivery to Lender of this Guaranty.
NOW, THEREFORE, Guarantor hereby guarantees to Lender the prompt and
full payment of the indebtedness and obligations described in the Note
(collectively called the "Guaranteed Obligations"), this Guaranty being upon the
following terms and conditions:
Section 1. Guaranty of Payment. Guarantor hereby unconditionally and
irrevocably guarantees to Lender the punctual payment when due, whether by lapse
of time, by acceleration of maturity, or otherwise, and at all times hereafter,
of all principal, fees, costs, expenses, indemnification indebtedness, and other
sums of money now or hereafter due and owing, or which Borrower is obligated to
pay.
The guaranty of Guarantor as set forth in this Section 1 is a
continuing guaranty of payment and not a guaranty of collection.
Section 2. Primary Liability of Guarantor. Guarantor shall be liable
for the payment of the Guaranteed Obligations as a primary obligor. This
Guaranty shall be effective as a waiver of, and Guarantor hereby expressly
waives, any and all rights to which Guarantor may otherwise have been entitled
under any suretyship laws in effect from time to time in the State of North
Carolina.
In the event of default by Borrower, Guarantor shall, on demand and
without presentment, protest, notice of protest, further notice of nonpayment or
of dishonor or of default or nonperformance, or notice of acceleration or of
intent to accelerate, or any other notice whatsoever, without any notice having
been given to Guarantor previous to such demand of the acceptance by Lender of
this Guaranty, and without any notice having been given to Guarantor previous to
such demand of the creating or incurring of such indebtedness, all such notices
being hereby waived by Guarantor, pay the amount due thereon to Lender, and it
shall not be necessary for Lender, in order to enforce such
payment by Guarantor, first to institute suit or pursue or exhaust any rights or
remedies against Borrower or others liable on such indebtedness, or to enforce
any rights against any security that shall ever have been given to secure such
indebtedness, or to join Borrower or any others liable for the payment of the
Guaranteed Obligations or any part thereof in any action to enforce this
Guaranty, or to resort to any other means of obtaining payment of the Guaranteed
Obligations.
Suit may be brought or demand may be made against Borrower or against
all parties who have signed this Guaranty or any other guaranty covering all or
any part of the Guaranteed Obligations, or against any one or more of them,
separately or together, without impairing the rights of Lender against any party
hereto.
Section 3. Governing Law; Forum. This Guaranty, and its validity,
enforcement, and interpretation, shall for all purposes be governed by and
construed in accordance with the laws of the State of North Carolina and
applicable United States federal law, and is intended to be performed in
accordance with, and only to the extent permitted by, such laws.
Section 4. Payments. All sums payable under this Guaranty shall be paid
in lawful money of the United States of America that at the time of payment is
legal tender for the payment of public and private debts.
Section 5. Time of Essence. Time shall be of the essence in this
Guaranty with respect to all of Guarantor's obligations hereunder.
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IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty under
seal the day and year first above set forth.
GUARANTOR:
--------------------------------
X. Xxxxxxx Xxxxxx, Individually
(SEAL)
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EXHIBIT A
PROMISSORY NOTE
December 29, 1999
For value received, Employee Investors, LLC, a North Carolina limited
liability company (together with its permitted successors and assigns, herein
called "Borrower"), promises to pay to the order of xxx.xxx, Inc., a Maryland
corporation (herein, together with its successors and assigns who become holders
of this Note, "Lender"), at 00000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx, Xxxxx
Xxxxxxxx 00000, Wake County, or at such other place as may be designated by
Lender, upon demand, the maximum principal amount, which shall be the product of
.05 of the appraised fair market value of the equity of xxx.xxx, Inc. as of
December 31, 1999 (all as set forth in the Asset Purchase Agreement between
Lender and KPT Properties, L.P. dated December 30, 1999) less fifty thousand and
two hundred dollars ($50,200) (or such lesser principal amount as may be
outstanding hereunder) (the "Loan Balance").
Borrower may prepay the Loan Balance in whole or in part at any time,
without premium or penalty. Payment shall be made by Borrower in lawful money of
the United States of America in immediately available funds for the credit of
Borrower on the date that such payment or payments are due.
Borrower shall pay to Lender no interest, and no payment shall be due
until 30 days after the date of the appraisal referred to above, at which time
all principal shall be due and payable in full.
No waiver of any breach, default or failure of condition under the
terms of this Note shall be implied from any failure of Lender to take, or any
delay by Lender in taking, action with respect to any such breach, default or
failure of condition or from any previous waiver of any similar or unrelated
breach, default or failure of condition. A waiver of any term of this Note must
be made in writing and shall be limited to the express written terms of such
waiver.
Borrower waives presentment, demand, notice of dishonor, notice of
default or delinquency, notice of acceleration, notice of protest and
nonpayment, notice of costs, expenses and losses and interest thereon, and late
charges and diligence in taking any action to collect any amount owing under
this Note.
This Note shall be construed and enforced in accordance with the laws
of the State of North Carolina, the domicile of Lender. Time is of the essence
with respect to every provision hereof.
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BORROWER:
EMPLOYEE INVESTORS, LLC,
a North Carolina limited liability company
By: ________________________
X. Xxxxxxx Xxxxxx,
Member and Manager
LENDER:
XXX.XXX, INC.,
a Maryland corporation
By: ________________________
X. Xxxxxxx Xxxxxx
President
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