GUARANTY AGREEMENT
(Loan Facility)
THIS GUARANTY AGREEMENT ("Guaranty") is made as of November 30, 2001, by
and between RAINTREE RESORTS INTERNATIONAL, INC., a Nevada corporation
("Guarantor") and RESORT CONDOMINIUMS INTERNATIONAL, LLC, a Delaware limited
liability company ("Lender").
W I T N E S S E T H:
WHEREAS, Lender is contemplating entering into a Loan Agreement (such Loan
Agreement, and any and all amendments, modifications, supplements, riders,
exhibits and schedules that are attached thereto and may hereafter be attached
thereto being hereinafter collectively referred to as the "Agreement") with
Xxxxxx Resorts, LLC, a Nevada limited liability company ("Borrower") to be dated
as of the date hereof, whereby Lender will lend to Borrower the sum of money
("Loan") as therein set forth, to be evidenced by a promissory note ("Note") as
called for in the Agreement, which Loan is to be secured by the collateral
("Collateral") described therein; and
WHEREAS, Lender is willing to enter into the Agreement with, and make the
Loan to, Borrower only if Guarantor agrees to guarantee the full, prompt,
complete and faithful performance of all the terms, covenants, conditions and
obligations on Borrower's part to be performed under the Receivables Loan
Documents (as defined in the Agreement) and Guarantor is willing to so agree.
NOW, THEREFORE, in order to induce Lender to enter into the Agreement with
Borrower and to fund the Loan, and for other good and valuable consideration,
the sufficiency of which is hereby acknowledged, Guarantor hereby
unconditionally covenants and agrees with Lender as follows:
ARTICLE I - GUARANTY
1.1 Guarantor absolutely and unconditionally, jointly and severally with
any other Obligors (as defined in paragraph 2.1), guarantees the full, prompt,
complete and faithful performance, payment, observance and fulfillment by
Borrower of all the obligations, covenants and conditions of the Receivables
Loan Documents ("Obligations"), including, but not limited to, the payment of
any and all sums that may become due to Lender from Borrower thereunder, whether
Borrower is liable individually or jointly with others. Guarantor further agrees
to pay all expenses (including attorneys' and paralegals' fees and legal
expenses and expert witness fees, all as more fully provided in the Agreement)
paid or incurred by Lender in endeavoring to collect the Obligations, or any
part thereof, or
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securing the performance thereof, or in enforcing this Guaranty, whether or not
litigation is instituted.
1.2 Guarantor covenants and agrees absolutely and unconditionally that, in
case of an Event of Default (as defined in the Agreement), within ten (10) days
of the receipt of written notice from or on behalf of Lender to the effect that
there exists such an Event of Default and of the Obligations which Borrower has
failed to pay or perform, Guarantor will pay in its entirety the entire unpaid
principal balance with accrued and unpaid interest due under the Note and any
other sums properly due and owing to Lender under the Receivables Loan Documents
(collectively, the "Unpaid Amount") in lawful money of the United States to
Lender at its offices at 0 Xxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000 or to
such other address as Lender may designate in writing from time-to-time, or will
provide Lender with evidence of the performance of the Obligation which Borrower
has failed to perform. If Guarantor should fail to pay any sums properly due
Lender hereunder within ten (10) days following receipt of Lender's request for
payment of any such sums, then said sums shall bear interest at the Default Rate
(as defined in the Agreement). Further, if Guarantor shall fail to pay such
amount or perform such Obligation, Lender may institute and pursue any action or
proceeding to judgment or final decree and may enforce any such judgment or
final decree against Guarantor and collect in the manner provided by law or
equity out of its property, wherever situated, the monies adjudged or decreed to
be payable.
1.3 This Guaranty shall not be limited to any particular period of time,
but, rather, shall continue absolutely, unconditionally and irrevocably until
all terms, covenants and conditions of the Receivables Loan Documents have been
fully and completely performed by Borrower or otherwise discharged and/or
released by Lender, and Guarantor shall not be released from any duty,
obligation or liability hereunder so long as there is any claim of Lender
against Borrower arising out of the Receivables Loan Documents which has not
been performed, settled or discharged in full, or during any period for which
this Guaranty is continued in effect or reinstated pursuant to paragraph 2.7.
ARTICLE II - REMEDIES AND RIGHTS OF LENDER
2.1 Lender shall give Guarantor notice in writing of any Event of Default
but neither failure to give, nor defect in, any notice shall extinguish or in
any way affect the obligations of Guarantor hereunder or give rise to any claim
by Guarantor for breach, other than to the extent the periods governing
Guarantor's performance, as set forth in paragraph 1.2, are affected by the
timing of the notice. Neither demand on, nor the pursuit of any remedies against
Borrower, or any guarantor, surety or insurer of the Obligations or part thereof
("Obligor") shall be required as a condition precedent to, and neither the
pendency nor the prior termination of any action, suit or proceeding against the
Borrower or any Obligor (whether for the same or a different remedy) shall bar
or prejudice the making of a demand on Guarantor by Lender and the commencement
against Guarantor after such demand of any action, suit or proceeding, at law or
in equity, for the specific performance of
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any covenant, or agreement contained in the Receivables Loan Documents, or for
the enforcement of any other appropriate legal or equitable remedy.
2.2 Guarantor's liability hereunder is primary, direct and immediate.
Guarantor agrees that neither: (a) the exercise or the failure to exercise by
Lender of any rights or remedies conferred on it under the Receivables Loan
Documents; (b) the recovery of a judgment against Borrower or any Obligor; (c)
the commencement of an action at law or the recovery of a judgment at law
against Borrower or any Obligor and the enforcement thereof through levy,
execution or otherwise; (d) the taking or institution of any other action or
proceeding against Borrower or any Obligor; nor (e) any delay in taking,
pursuing or exercising any of the foregoing actions, rights, powers or remedies
(even though requested by Guarantor) by Lender or anyone acting for Lender shall
extinguish or affect the obligations of Guarantor hereunder, and Guarantor shall
be and remain liable for and until all Obligations shall have been fully paid
and/or performed notwithstanding (i) the previous discharge (total or partial)
from further liability of Borrower or any Obligor or (ii) the existence of any
bar (total, partial or temporary) to the pursuit by Guarantor of any right or
claim to indemnity against Borrower or any Obligor or (iii) any right or claim
to be subrogated to the rights or claims of Lender in and to the Collateral or
the Receivables Loan Documents, or resulting from any action or failure or
omission to act or delay in acting by Lender or anyone entitled to act in its
place.
2.3 If Guarantor shall be dissolved or lose its charter by forfeiture or
otherwise or shall become insolvent or admit in writing its inability to pay its
debts as they mature, or apply for, consent to or acquiesce in an appointment of
a trustee, receiver, liquidator, assignee, sequestrator or other similar
official for itself or any of its property; or, in the absence of such
application, consent or acquiescence, a trustee, receiver, liquidator, assignee,
sequestrator or other similar official is appointed for Guarantor or for a
substantial part of its property and is not discharged within sixty (60) days;
or any bankruptcy, reorganization, debt arrangement or other proceeding under
any bankruptcy, admiralty or insolvency law or at common law or in equity, or
any dissolution or liquidation proceeding is instituted by Guarantor, or is
instituted against Guarantor and remains for sixty (60) days undismissed, then,
whether any such event occurs at a time when any of the Obligations are then due
and payable or not, the Unpaid Amount shall thereupon become due and payable in
full, Guarantor will pay to Lender forthwith in its entirety the Unpaid Amount
and any other sums properly due and owing to Lender under the Receivables Loan
Documents as if such Unpaid Amount and other sums were then due and payable and
in any such event, Lender, irrespective of whether any demand shall have been
made on Guarantor, Borrower or any Obligor, by intervention in or initiation of
judicial proceedings relative to Guarantor, its creditors or its property, may
file and prove a claim or claims for such sum or any portion thereof and for any
other sums due under the Receivables Loan Documents and file such other papers
or documents as may be necessary or advisable in order to have such claim
allowed in such judicial proceedings and to collect and receive any monies or
other property payable or deliverable on any such claim, and to distribute the
same; and any receiver,
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assignee or trustee in bankruptcy or reorganization is hereby authorized to make
such payments to Lender.
2.4 The benefits, remedies and rights provided or intended to be provided
hereby for Lender are in addition to and without prejudice to any rights,
benefits, remedies or security to which Lender might otherwise be entitled. No
delay or omission on the part of Lender in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by Lender
of any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy; nor shall any modification or waiver of
any of the provisions of this Guaranty be binding on Lender except as expressly
set forth in writing, duly signed and delivered on behalf of Lender. No action
of Lender or failure or omission to act permitted hereunder shall in any way
affect or impair the rights of Lender and the obligations of Guarantor under
this Guaranty.
2.5 Anything else contained herein to the contrary notwithstanding, Lender,
from time to time, whether before or after an Event of Default, without notice
to Guarantor, may take all or any of the following actions without in any manner
affecting or impairing the liability of Guarantor hereunder, and without waiving
any rights which Lender may have, unless expressly waived in writing by Lender:
(a) obtain a security interest in any property to secure any of the Obligations
or any obligation hereunder; (b) retain or obtain the primary or secondary
liability of any party or parties, in addition to Guarantor, with respect to any
of the Obligations; (c) extend the time for payment of the Loan or any
installment thereof or the time for performance of any Obligation, in either
case for any period (whether or not longer than the original term therefor); (d)
release or compromise any liability of Guarantor hereunder or any liability of
any nature of any other party or parties with respect to the Obligations; (e)
resort to Guarantor for payment of any Obligations, whether or not Lender shall
proceed against any other party primarily or secondarily liable on any of the
Obligations or against any Collateral; (f) substitute, exchange or release all
or any part of the Collateral; (g) agree to any amendment, modification or
alteration of any of the Receivables Loan Documents and exercise its rights to
consent to any action or nonaction of Borrower which may violate the covenants
and agreements contained in any of the Receivables Loan Documents, with or
without consideration, on such terms and conditions as may be acceptable to it;
or (h) exercise any of its rights under the Receivables Loan Documents or
available at law or in equity.
2.6 Guarantor shall not be released or discharged, either in whole or in
part, by Lender's failure or delay to perfect or continue the perfection of any
security interest in any property which secures the Obligations of Borrower or
of any Obligor to Lender, or to protect the property covered by such security
interest. Guarantor waives any rights or defenses which may arise as a result of
errors or omissions in connection with the administration of the Loan by Lender,
except for bad faith or willful misconduct.
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2.7 Guarantor agrees that if at any time all or any part of any payment
theretofore applied by Lender to any of the Obligations is or must be rescinded
or returned by Lender for any reason whatsoever (including, without limitation,
the insolvency, bankruptcy or reorganization of Borrower) such Obligations, for
the purpose of this Guaranty, to the extent that such payment is or must be
rescinded or returned, shall be deemed to have continued in existence,
notwithstanding such application by Lender, and this Guaranty shall continue to
be effective or be reinstated, as the case may be, as to such Obligations, all
as though such application by Lender had not been made.
2.8 Notwithstanding any payment or performance by Guarantor pursuant to
this Guaranty, Guarantor hereby waives and releases any right of reimbursement
and any right to be subrogated to any rights of Lender against Borrower.
Guarantor acknowledges that the foregoing waiver and release has been
specifically bargained for by Lender and has been relied upon by Lender in
ascribing value to this Guaranty, which reliance was a condition precedent to
Lender's willingness to extend the Loan to Borrower. Guarantor expressly waives
any defenses to the enforcement of this Guaranty, to any rights of Lender
created or granted hereby or to the recovery by Lender against Borrower,
Guarantor or any other Obligor of any deficiency after judicial or nonjudicial
foreclosure or sale, even though such a foreclosure or sale may impair the
subrogation rights of Guarantor or otherwise prevent Guarantor from obtaining
reimbursement or contribution from Borrower or any other Obligor. If this
paragraph 2.8, or compliance with this paragraph 2.8, would cause or result in,
or constitute, a Default or an Event of Default, in each case under and as
defined in the Indenture, then this paragraph 2.8 shall be deemed deleted, or
modified to such extent as may be necessary for this paragraph, or such
compliance, as the case may be, not to cause or result in, or constitute, such a
Default or Event of Default.
2.9 Guarantor hereby expressly waives and relinquishes any duty on the part
of Lender (should any such duty exist) to disclose to Guarantor any matter, fact
or thing related to the business, operations or condition (financial or
otherwise) of Borrower or its affiliates or subsidiaries or their properties,
whether now known or hereafter known by Lender during the life of this Guaranty.
The execution and delivery of this Guaranty is based solely on the independent
investigation of Guarantor and in no part upon any representation, warranty,
covenant or statement of Lender with respect thereto. Guarantor warrants that it
is fully aware of the financial condition of Borrower, has adequate means to
obtain such information from Borrower on a continuing basis, and is not relying
on Lender to provide such information either now or in the future, but assumes
full responsibility to obtain such information. This Guaranty shall in no way be
limited or impaired by any change in the business structure of Borrower.
2.10 It is not necessary for Lender to inquire into the powers of Borrower
or its officers, directors, partners or agents purporting to act on its behalf,
and the Obligations are hereby guaranteed notwithstanding the lack of power or
authority on the part of Borrower or anyone acting on its behalf to incur the
Obligations.
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ARTICLE III - GUARANTOR'S WARRANTIES AND COVENANTS
3.1 Guarantor represents and warrants to Lender that:
(a) Guarantor is a corporation and now existing in good standing under
the laws of its state of formation as shown on the signature page hereof
and is duly qualified and in good standing and authorized to do business in
all jurisdictions wherein the location and nature of the properties used or
business, as the same is presently or proposed to be conducted, makes such
qualification necessary;
(b) Guarantor is an affiliate of Borrower and will benefit for the
execution and delivery of the Agreement and the making of the Loan;
(c) Guarantor has the power and authority to execute and deliver this
Guaranty and carry on its businesses as presently conducted and the
execution, delivery and performance by Guarantor of this Guaranty have been
duly authorized by all necessary action; no consent of stockholders is
required therefor; and the execution and delivery of, the consummation of
the transactions contemplated in, and compliance by Guarantor with any of
the terms and provisions of, this Guaranty do not and will not conflict
with or contravene any law, rule, regulation, judgment, order or decree of
any government, governmental instrumentality or court having jurisdiction
over Guarantor or any of its activities or properties or conflict with, or
result in any default under the Charter or Articles or Certificate of
Incorporation, Public Deed, or the By-laws, as amended, of Guarantor, or
any indenture (including without limitation the Indenture, as defined in
the Agreement), mortgage, chattel mortgage, deed of trust, conditional
sales contract, charter, bank loan or credit agreement or other agreement
or instrument of any kind to which Guarantor is a party or by which
Guarantor or its properties may be bound or affected, except for those as
to which consents have been obtained by Guarantor and are in full force and
effect;
(d) Neither the execution and delivery by Guarantor of this Guaranty
nor any of the transactions by Guarantor contemplated hereby requires the
consent, approval, order or authorization of, or registration with, or the
giving of notice to, any United States federal or state, or any foreign,
governmental authority, except such consents as have been obtained by
Guarantor and are in full force and effect;
(e) This Guaranty has been duly executed and delivered by Guarantor
and constitutes a legal, valid and binding obligation of Guarantor
enforceable against it in accordance with its terms;
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(f) There is no action, litigation or other proceeding pending or
threatened against Guarantor before any court, arbitrator or administrative
agency which may have a materially adverse effect on the assets, business,
or financial condition of Guarantor or which would prevent, hinder or
jeopardize the performance by Guarantor under this Guaranty;
(g) Guarantor shall maintain its existence and right to carry on
operations and acquire, maintain and renew all rights, contracts, powers,
privileges, leases, lands, sanctions and franchises necessary or useful in
the conduct of its business operations;
(h) Guarantor is fully familiar with all of the covenants, terms and
conditions of the Receivables Loan Documents;
(i) Guarantor is not a party to any contract, agreement, indenture or
instrument or subject to any charter or other organizational restriction
which individually or in the aggregate might materially adversely affect
its financial condition, business, or operations or which would in any way
jeopardize the ability of Guarantor to perform under this Guaranty;
(j) Guarantor was not induced to give this Guaranty by the fact that
there are or may be other Obligors; and
(k) The Loan is a Permitted Debt (as defined in the Indenture) and
that as of the date hereof there exists no Default or Event of Default (as
the foregoing two (2) terms are defined in the Indenture) under the
Indenture. Guarantor covenants with Lender that (i) as and when required by
the Indenture, the Guarantor shall supply the Lender with true and complete
copies of all reports, certifications, notices or demands given by the
Issuers under the Indenture (including, but not limiting the generality of
the foregoing, materials required by Sections 4.03, 4.04, 4.21, 7.06, and
Article 8 of the Indenture), and (ii) it will not amend or modify the
Indenture without the prior written consent of the Lender.
3.2 Guarantor's Affirmative Covenants.
(a) Guarantor will maintain its existence as a corporation, duly
organized, validly existing and in good standing under the laws of Nevada
and remain in good standing and authorized to do business in each
jurisdiction where the location or nature of its properties or its business
then makes such good standing and qualification necessary. Guarantor will
maintain full authority to perform the Obligations.
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(b) Guarantor will supply Lender, in the form and within the time
period required under the Agreement, all financial reports and information
required of the Guarantor thereunder.
(c) Guarantor will file all tax returns and will timely pay all taxes,
if any, required to be filed by it or paid by it.
(d) Guarantor will execute or cause to be executed all documents and
do or cause to be done all acts necessary to effect the intent and purposes
of this Guaranty.
(e) (i) Guarantor shall (i) maintain a quarterly volume of vacation
interval sales of not less than $15,000,000, determined on a consolidated
basis, (ii) not permit its consolidated quarterly costs and expenses for
commissions and selling relating to the retail sale of vacation intervals,
expressed as a percentage of vacation intervals sales occurring during such
quarter, to exceed fifty percent (50%) or (iii) permit its consolidated
quarterly general and administrative expenses, expressed as a percentage of
vacation interval sales occurring during such quarter, to exceed nineteen
percent (19%). The foregoing covenant shall be tested on the final day of
each fiscal quarter of Guarantor, commencing with the fiscal quarter ending
December 31, 2001.
(ii) Guarantor shall (i) maintain an annual volume of vacation
interval sales of not less than $70,000,000, determined on a
consolidated basis, (ii) not permit its consolidated costs and
expenses for commissions and selling relating to the retail sale of
vacation intervals, expressed as a percentage of vacation intervals
sales occurring during such year, to exceed fifty percent (50%) or
(iii) permit its consolidated general and administrative expenses,
expressed as a percentage of vacation interval sales occurring during
such year, to exceed nineteen percent (19%). The foregoing covenant
shall be on the final day of each fiscal year of Guarantor, commencing
with the fiscal year ending December 31, 2001.
3.3 Guarantor's Negative Covenants.
(a) Guarantor will not change its name or move its principal place of
business or chief executive office except upon not less than sixty (60)
days prior written notice to Lender.
(b) Guarantor shall not incur any Indebtedness to the extent
prohibited by the terms Section 4.09 of the Indenture, in the form existing
on the date hereof (the provisions of which are incorporated herein by
reference as if fully set forth at length herein). Furthermore, in the
event during the term of this Guaranty,
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events occur such that Guarantor is no longer bound by the terms of the
Indenture, the provisions of this paragraph shall nevertheless be binding
upon Guarantor for the remaining term of this Guaranty.
(c) Guarantor, without the prior written consent of Lender, will not:
(i) sell, convey, lease, transfer or dispose of all or substantially all of
its assets to another entity; or (ii) permit or suffer to exist any change
in the legal or beneficial ownership of Guarantor or any person controlling
Guarantor (whether directly or indirectly, through one (1) or more
intermediaries) or any change in the power to control it or any person
controlling Guarantor (whether directly or indirectly, through one or more
intermediaries).
ARTICLE IV - MISCELLANEOUS PROVISIONS
4.1 All the covenants, stipulations, promises and agreements contained
in this Guaranty by or on behalf of Guarantor are for the benefit of Lender
and its successors or assigns and shall bind Guarantor and its successors
and assigns. Lender, without notice of any kind, may sell, assign or
transfer the Receivables Loan Documents and/or its interest in all or in
part of the Collateral, and in such event each and every immediate and
successive assignee or transferee thereof shall have the right to enforce
this Guaranty, by suit or otherwise, for the benefit of such assignee or
transferee as fully as if such assignee or transferee were herein by name
specifically given such rights, powers and benefits. Guarantor hereby
agrees for the benefit of any such assignee or transferee that their
respective obligations hereunder shall not be subject to any reduction,
abatement, defense, set-off, counterclaim or recoupment for any reason
whatsoever.
4.2 All notices, requests or demands required or permitted to be given
under this Guaranty shall be in writing, and shall be deemed effective (a)
upon hand delivery, if hand delivered or (b) two (2) Business Days after
such are deposited for delivery via Federal Express or other nationally
recognized overnight courier service, addressed as shown below, or to such
other address as the party being notified may have designated in a notice
given to the other party. Written notice may be given by telecopy to the
telecopier number shown below or to such other telecopier number as the
party being notified may have designated in a notice given to the other
party, which notice shall be effective on the day of receipt if received
during the recipient's normal business hours on the day of receipt or
otherwise on the next Business Day; provided that such notice shall not be
deemed effective unless not later than the next Business Day, a copy of
such notice is hand delivered or deposited for delivery via courier in
accordance with the requirements set forth above. The notice addresses and
telecopy numbers for Guarantor and Lender are set forth at the end of this
Guaranty following their respective signatures.
4.3 Terms used and not otherwise defined herein shall have the same
meanings given thereto in the Agreement.
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4.4 Guarantor hereby expressly waives: (a) notice of the acceptance by
Lender of this Guaranty; (b) notice of the existence, creation or
nonpayment of all or any of the Obligations; (c) presentment, demand,
notice or dishonor, protest, and all other notices whatsoever; (d) all
diligence in collection or protection of or realization on the Obligations
or any thereof, any obligation hereunder, or any security for or guaranty
of any of the foregoing; and (e) any and all suretyship defenses and
defenses in the nature thereof. Guarantor hereby expressly waives the
benefits of "orden, excusion y division" and of prior judgment, levy,
execution and other rights provided for in Articles 2814, 2815, 2817, 2818,
2820, 2821, 2823, 2827 and 2836 of the Civil Code of the Federal District
of Mexico and the corresponding articles of the Civil Code of all other
relevant states of Mexico, which articles are not reproduced herein by
express declaration of Guarantor that the contents of said articles are
known to it. Guarantor also hereby irrevocably and expressly waives its
rights under the benefits of Articles 2846, 2847, 2848 and 2849 of the
Civil Code for the Federal District of Mexico and the corresponding
articles of the Civil Code of all other relevant states of Mexico, which
articles are not reproduced herein by express declaration of Guarantor that
the contents of said articles are known to it.
4.5 THIS GUARANTY AND THE RIGHTS, DUTIES AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW JERSEY (WITHOUT REGARD TO THE CONFLICTS
OF LAWS PRINCIPLES THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY
OTHER JURISDICTION) AND TO THE EXTENT THEY PREEMPT THE LAWS OF SUCH STATE,
THE LAWS OF THE UNITED STATES.
4.6 EACH OF GUARANTOR AND LENDER: (A) HEREBY IRREVOCABLY SUBMITS
ITSELF TO THE PROCESS, JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF
NEW JERSEY, XXXXXX COUNTY, AND TO THE PROCESS, JURISDICTION, AND VENUE OF
THE NEWARK DIVISION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEW JERSEY, FOR THE PURPOSES OF SUIT, ACTION OR OTHER PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS GUARANTY OR THE SUBJECT MATTER THEREOF; AND (B)
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HEREBY WAIVES AND AGREES
NOT TO ASSERT BY WAY OF MOTION, DEFENSE OR OTHERWISE IN ANY SUCH SUIT,
ACTION OR PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF THE ABOVE-NAMED COURTS, THAT SUCH SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH
SUIT, ACTION OR PROCEEDING IS IMPROPER.
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4.7 LENDER AND GUARANTOR ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS GUARANTY WOULD BE BASED UPON DIFFICULT AND
COMPLEX ISSUES; AND THEREFORE, THEY AGREE THAT ANY LAWSUIT ARISING OUT OF
ANY SUCH CONTROVERSY SHALL BE TRIED BY A JUDGE SITTING WITHOUT A JURY, AND
KNOWINGLY AND VOLUNTARILY WAIVE TRIAL BY JURY IN ANY SUCH PROCEEDING.
4.8 ALL OF THE PROVISIONS SET FORTH IN PARAGRAPHS 4.5 THROUGH 4.7 ARE
A MATERIAL INDUCEMENT FOR LENDER'S MAKING ADVANCES TO BORROWER.
(GUARANTOR'S INITIALS RE: 4.5 - 4.8 _____)
[Remainder of Page Intentionally Left Blank]
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4.9 Guarantor has appointed _______________________, with an
address of ______________________________________, as its agent for service of
process ("Service of Process Agent") who shall be responsible for accepting
service of process within the United States on behalf of Guarantor. Guarantor
shall not change its Service of Process Agent without (i) sixty (60) days prior
written notice to Lender and (ii) the delivery to Lender of a power of attorney
in the form contemplated in paragraph 4.1.8 of the Agreement, as to such new
Service of Process Agent (the "New Agent"). Guarantor hereby agrees that service
of process upon the Service of Process Agent appointed prior to the appointment
of the New Agent shall continue to be effective until the satisfaction of the
conditions set forth in clauses (i) and (ii) above.
4.10 Any provision of this Guaranty which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
4.11 This Guaranty may be executed in any number of separate counterparts,
all of which, when taken together, shall constitute one and the same instrument,
admissible into evidence, notwithstanding the fact that all parties did not sign
the same counterpart. Delivery of an executed counterpart of this Guaranty by
telefacsimile shall be equally as effective as delivery of a manually executed
counterpart of this Guaranty. Any party delivering an executed counterpart of
this Guaranty by telefacsimile shall also deliver a manually executed
counterpart of this Guaranty, but the failure to deliver a manually executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Guaranty.
[Signature Page Follows]
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[Signature Page to Raintree Resorts Guaranty]
IN WITNESS WHEREOF, the parties hereto have executed this Guaranty as of
the date first hereinabove written, and acknowledge receipt of a copy hereof.
"Guarantor" "Lender"
RAINTREE RESORTS RESORT CONDOMINIUMS
INTERNATIONAL, INC., INTERNATIONAL, LLC, a Delaware
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx X. Xxxxxx By:
Title: Attorney-in-Fact Name:
Title:
_____ Check here to confirm that _____ Check here to confirm that
Paragraph 4.8 has been Paragraph 4.8 has been
initialed. initialed.
Federal Tax Identification No:
Guarantor's Notice Address Lender's Notice Address
and Telecopy Number: and Telecopy Number:
Raintree Resorts International, Inc. Resort Condominiums International, LLC
00000 Xxxxxxxx Xxxxx, Xxxxx 000 6 Sylvan Way
Houston, Texas 77024 Parsippany, New Jersey 07054-0656
Attention: Chief Financial Officer Attention: Chief Financial Officer
Telecopy No. 000-000-0000 Telecopy: (000) 000-0000
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with a copy to:
Resort Condominiums International, LLC
0 Xxxxxx Xxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: General Counsel
Telecopy: (000) 000-0000
with a copy to
(which shall not constitute notice):
Xxxxxxx & Burnham P.L.C.
Two Xxxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
15
