EXHIBIT (e)(31)
LOAN NO. C-332628
GUARANTEE
In consideration of the benefits which the undersigned (herein called
"Guarantor") will receive as a result of The Northwestern Mutual Life Insurance
Company ("Lender") making the above-numbered loan to Next Level Communications,
Inc. ("Borrower") evidenced by a promissory note (the "Note") dated of even date
herewith in the original principal amount of $20,000,000 and secured by a deed
of trust and security agreement (the "Lien Instrument") covering property in
Rohnert Park, California, and as an inducement required by Lender to fund said
loan, Guarantor has agreed to guarantee payment of the Note and all amounts at
any time owed to Lender under the Lien Instrument and under the other Loan
Documents (as hereinafter defined).
1. Therefore, for value received, Guarantor hereby, unconditionally and
irrevocably, guarantees to Lender, its successors and assigns the full, prompt
and faithful payment of all amounts owed Lender under the Loan Documents, it
being the intention hereof that Guarantor shall remain liable until the full
amount of the principal, interest and any other sums due or to become due under
the Loan Documents (the "Indebtedness") shall be fully paid, (i) notwithstanding
any invalidity of, or defect or deficiency in any Loan Document, and (ii)
notwithstanding any act, omission or thing which might otherwise operate as a
legal or equitable discharge of any Guarantor. If Borrower shall become the
debtor under the Federal Bankruptcy Code or the subject of any other state or
federal bankruptcy, insolvency or similar proceeding, neither the operation of a
stay nor the discharge of the Indebtedness thereunder shall affect the liability
of Guarantor hereunder. As used herein, the term "Loan Documents" means the
Note, the Lien Instrument and all other instruments and documents (as the same
may be amended from time to time) executed by Xxxxxxxx and delivered to Lender
in connection with, or as security for, the indebtedness evidenced by the Note,
except any separate environmental indemnity agreement.
2. Upon the occurrence of an Event of Default (as defined in the Lien
Instrument), Guarantor shall, within five business days from the date notice of
such Event of Default is given to Guarantor, cure such Event of Default. If any
Event of Default shall not be cured by Guarantor within said five business day
period, Lender may, at its option, accelerate the Indebtedness (if operation of
a stay under the Federal Bankruptcy Code or under any other state or federal
bankruptcy, insolvency or similar proceeding prohibits or delays acceleration of
the Indebtedness as to Borrower, Guarantor agrees that its obligations hereunder
shall not be postponed or reduced) and, within five business days from the date
a written demand from Lender to Guarantor is given, Guarantor shall pay all
Indebtedness outstanding, whether or not acceleration of the Indebtedness shall
have occurred as to the Borrower.
3. Except to the extent that any obligation hereunder has been fully and
completely satisfied by Guarantor, Guarantor hereby waives absolutely and
irrevocably any right of subrogation to Xxxxxx's claims against Borrower and any
right of indemnity, reimbursement or contribution from Borrower with respect to
any payment made or performance undertaken by Guarantor pursuant hereto.
Concurrently with the payment in full of the Indebtedness by the Guarantor
hereunder, the Lender shall assign all its rights and obligations in the Loan
Documents to the Guarantor (including, without limitation, the Lien Instrument)
and shall reasonably cooperate with the Guarantor in making any public filings
in connection therewith.
4. Without limiting or lessening the liability of Guarantor under this
Guarantee, Lender may, without notice to Guarantor,
(a) grant extensions of time or any other indulgences on the
Indebtedness;
(b) take, give up, modify, vary, exchange, renew or abstain from
perfecting or taking advantage of any security for the
Indebtedness; and
(c) accept or make compositions or other arrangements with Xxxxxxxx,
realize on any security and otherwise deal with Borrower, other
parties and any security as Lender may deem expedient.
Notwithstanding anything to the contrary in this Guarantee, so long as Guarantor
has not defaulted under this Guarantee, Lender shall not, without the prior
written consent of Guarantor, (i) amend the Loan Documents to increase the
principal amount of the Indebtedness, increase the interest rate charged on such
principal amount, increase the amount of any prepayment fee, change the
principal amortization of the Indebtedness, eliminate any notice required to be
given to Guarantor or make any other change that could reasonably be expected to
increase the liability of Guarantor hereunder, or (ii) release any material
portion of the collateral securing the Indebtedness.
5. This Guarantee shall be a continuing guarantee, shall not be revoked
by death, shall inure to the benefit of, and be enforceable by, any subsequent
holder of the Note and the Lien Instrument and shall be binding upon, and
enforceable against, Guarantor and Guarantor's successors and assigns.
6. All additional demands, presentments, notices of protest and
dishonor, and notices of every kind and nature, including those of any action or
no action on the part of Borrower, Lender or any Guarantor, are expressly waived
by Guarantor. This is a guarantee of payment and not of collection. Guarantor
hereby waives the right to require Lender to proceed against Borrower or any
other party or to proceed against or apply any security it may hold, waive the
right to require Lender to pursue any other remedy for the benefit of Guarantor
and agrees that Xxxxxx may proceed against Guarantor without taking any action
against any other party and without proceeding against or applying any security
it may hold. Lender may, at its election, following a default by Guarantor
hereunder, foreclose upon any security held by it in one or more judicial or
nonjudicial sales, whether or not every aspect of such sale is commercially
reasonable, without affecting or impairing the liability of Guarantor, except to
the extent the Indebtedness shall have been paid. Guarantor waives all rights
and defenses arising out of an election of remedies by Xxxxxx following a
default by Guarantor hereunder, even though that election of remedies, such as a
nonjudicial foreclosure of the Lien Instrument, has destroyed the Guarantor's
rights of subrogation and reimbursement against Borrower by the operation of
Section 580d of the California Code of Civil Procedure or otherwise. Guarantor
waives all rights and defenses that Guarantor may have because Xxxxxxxx's debt
is secured by real property. This means, among other things, that (i) Lender may
collect from the Guarantor without first foreclosing on any real or personal
collateral pledged by Xxxxxxxx, and (ii) if Lender forecloses on any real
property collateral pledged by Borrower following default by Guarantor
hereunder: (A) the amount of the debt may be reduced only by the price for which
that collateral is sold at the foreclosure sale, even if the collateral is worth
more than the sale price, and (B) Lender may collect from Guarantor even if
Lender, by foreclosing on the real property collateral, has destroyed any right
Guarantor may have to collect from Borrower. This is an unconditional and
irrevocable waiver of any rights and defenses Guarantor may have because
Xxxxxxxx's debt is secured by real property. These rights and defenses waived by
Guarantor include, but are not limited to, any rights or defenses based upon
Sections 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
Without limiting the foregoing, Guarantor hereby waives any and all benefits
that might otherwise be available to any Guarantor under California Civil Code
Sections 2809, 2810, 2819, 2839, 2845, 2850, 2899 and 3433.
7. Guarantor agrees to pay reasonable attorneys' fees and all other
costs and expenses which may be incurred in the enforcement of this Guarantee or
the collection of the Indebtedness.
8. Any notices, demands, requests and consents permitted or required
hereunder or under any other Loan Document shall be in writing, may be delivered
personally or sent by certified mail with postage prepaid or by reputable
courier service with charges prepaid. Any notice or demand sent to Guarantor by
certified mail or reputable courier service shall be addressed to Guarantor at
the address set forth opposite Guarantor's name below or such other address in
the United States of America as Guarantor shall designate in a notice to Lender
given in the manner described herein. Any notice sent to Lender by certified
mail or reputable courier service shall be addressed to The Northwestern Mutual
Life Insurance Company to the attention of the Real Estate Investment Department
at 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 or at such other addresses as
Lender shall designate in a notice given in the manner described herein. Any
notice given to Lender shall refer to the Loan No. set forth above. Any notice
or demand hereunder shall be deemed given when received. Any notice or demand
which is rejected, the acceptance of delivery of which is refused or which is
incapable of being delivered during normal business hours at the address
specified herein or such other address designated pursuant hereto shall be
deemed received as of the date of attempted delivery.
9. This Guarantee shall be governed by and construed in all respects in
accordance with the laws of the State of California without regard to any
conflict of law principles. With respect to any action, lawsuit or other legal
proceeding concerning any dispute arising under or related to this Guarantee,
Guarantor hereby irrevocably consents to the jurisdiction of the courts located
in the State of California and irrevocably waives any defense of improper venue,
forum nonconveniens or lack of personal jurisdiction in any such action, lawsuit
or other legal proceeding brought in any court located in State of California.
Nothing contained herein shall affect the rights of Lender to commence an
action, lawsuit or other legal proceeding against Guarantor in any other
jurisdiction.
Executed as of the 24th day of October, 2001.
Mailing Address: MOTOROLA, INC., a Delaware
corporation
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
By: /s/ signature
-------------------------------
Its:
