PERFORMANCE GUARANTEE OF RESIDENTIAL CAPITAL, LLC
Exhibit 10.13
CONFORMED COPY
Performance Guarantee, dated as of February 21, 2008, by Residential Capital, LLC, a Delaware
limited liability company (“Guarantor”), in favor of GMAC LLC, as Agent for the Lenders (the
“Guaranteed Party”).
1. Unconditional Guarantee. To induce the Guaranteed Party to enter into a Credit Agreement, dated
as of February 21, 2008 (as amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), with Guarantor’s affiliate Residential Funding Company, LLC (“RFC” and,
including any surviving entity in the event of a merger, amalgamation or consolidation of RFC, the
“Obligor”), Guarantor absolutely, unconditionally and irrevocably guarantees to the Guaranteed
Party and its successors and permitted assigns from the date hereof RFC shall perform and observe
all of the terms, covenants, conditions, agreements and undertakings to be performed or observed by
RFC under the Credit Documents, including, without limitation, the obligation of RFC to distribute
Available Funds in accordance with Section 2.21 of the Credit Agreement, other than Excluded
Obligations as defined below, in accordance with the terms, being collectively called the
“Obligations”), when the same shall be required to be performed or observed under the Credit
Documents (subject to any applicable grace period with respect to such Obligations set forth in the
Credit Documents); and the Guarantor unconditionally and irrevocably agrees that it shall ensure
that RFC, the Guarantor or some other Person shall duly and punctually perform and observe each
Obligation (provided that acceptance of any such other Person’s performance shall not constitute a
novation of this Performance Guarantee). “Excluded Obligations” means (i) the payment of principal
of, or interest on, the Notes or any fees, (ii) any payment coming due as a result of the aggregate
outstanding principal balance of the Loans exceeding the Borrowing Base, provided that this clause
(ii) shall not limit the Guarantor’s obligations in respect of a failure of RFC to pay any Required
Repayment required to be paid by them under Section 2.20 of the Credit Agreement, or (iii)
Obligations arising under Section 2.13, 2.14, 2.15 or 2.16(a), (b) or (c), of the Credit Agreement.
It shall not be a condition to the obligation of the Guarantor hereunder to guarantee and ensure
the performance or observance of any of the Obligations that the Guaranteed Party shall have first
made any request of or demand upon or given any notice to the Guarantor or any other Person or have
instituted any action or proceeding against the Guarantor or any other Person in respect thereof.
2. DEFINITIONS. Capitalized terms used but not defined in this Performance Guarantee shall have
the meanings set forth in the Credit Agreement.
“Requirements of Law”, as to any Person, the certificate of incorporation and by-laws or other
organizational or governing documents of such Person, and any law, treaty, rule or regulation
(including the Investment Company Act of 1940, as amended) or determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is subject.
3. Nature of Guarantee. Guarantor’s obligations hereunder are unconditional and shall not be
affected by the existence, validity, enforceability, perfection or extent of any collateral, the
validity, regularity or enforceability of the Credit Documents, the absence of any action to
enforce RFC’s obligations under any of the Credit Documents, any waiver or consent by RFC with
respect to any provisions of the Credit Agreement or any other Credit Document or by any other
circumstance relating to the Obligations that might otherwise constitute a legal or equitable
discharge of or defense to this Performance Guarantee (excluding the defense of payment or statute
of limitations, neither of which is waived). Guarantor agrees that the Guaranteed Party may resort
to Guarantor for performance of any of the Obligations owed to it whether or not the Guaranteed
Party shall have resorted to any Collateral therefor or shall have proceeded against any obligor
principally or secondarily liable for any of the Obligations, including the Obligor, and whether or
not the Guaranteed Party has pursued any other remedy available to it. The Guaranteed Party shall
not be obligated to file any claim relating to the Obligations in the event that the Obligor
becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the
Guaranteed Party to so file shall not affect Guarantor’s obligations hereunder. In the event that
any payment to the Guaranteed Party in respect of any Obligations owed to it is rescinded or must
otherwise be returned for any reason whatsoever (other than by reason of any circumstance, other
than bankruptcy or insolvency, that constitutes a legal or equitable defense available to the
Obligor), Guarantor shall remain liable hereunder with respect to such Obligations as if such
payment had not been made and the Performance Guarantee shall be reinstated, if applicable. At any
time and from time to time, upon the written request of the Guaranteed Party, and at the sole
expense of Guarantor, Guarantor will furnish such information regarding the financial well-being of
Guarantor as may be reasonably requested by the Guaranteed Party.
4. Changes in Obligations, Collateral therefor and Agreements Relating Thereto; Waiver of Certain
Notices. Guarantor agrees that the Guaranteed Party may at any time and from time to time, either
before or after the maturity thereof, with notice to and consent of Guarantor, extend the time of
payment of, exchange or surrender any Collateral (except as permitted by the Credit Agreement) for,
or renew any of the Obligations, and may also make any agreement with the Obligor for the
extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for
any modification of the terms thereof or of any agreement between the Guaranteed Party and the
Obligor without in any way impairing or affecting this Performance Guarantee. The Guarantor
authorizes the Guaranteed Party, without notice or demand and without affecting its liability
hereunder, from time to time, to forbear, indulge or take other action or inaction in respect of
this Performance Guarantee or the Obligations, or to exercise or not exercise any right or remedy
hereunder or otherwise with respect to the Obligations. Guarantor waives notice of the acceptance
of this Performance Guarantee and of the creation, renewal, extension or accrual of Obligations,
presentment, demand for payment, non-payment, notice of dishonor and protest.
5. Expenses. Guarantor agrees to pay on demand all fees and out of pocket expenses (including the
reasonable fees and expenses of the Guaranteed Party’s counsel) in any way relating to the
enforcement or protection of the rights of the Guaranteed Party hereunder; provided, that Guarantor
shall not be liable for any expenses of the Guaranteed Party if no payment under this Performance
Guarantee is or was due.
6. Subrogation. The Guarantor shall not exercise any rights which it may have or acquire by way of
subrogation until all of the Obligations owed to it are paid in full to the Guaranteed
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Party. If
any amounts are paid to the Guarantor in violation of the foregoing limitation, then such amounts
shall be held in trust for the benefit of the Guaranteed Party and shall forthwith be paid to the
Guaranteed Party to reduce the amount of outstanding Obligations, whether matured or unmatured.
Subject to the foregoing, upon payment of any of the Obligations, Guarantor shall be subrogated to
the rights of the Guaranteed Party against the Obligor with respect to such Obligations, and the
Guaranteed Party agrees to take at Guarantor’s expense such steps as Guarantor may reasonably
request to implement such subrogation.
7. Taxes. All payments by the Guarantor hereunder will be made in full without set- off or
counterclaim and free and clear of and without withholding or deduction for or on account of any
present or future taxes, duties or other charges, unless the withholding or deduction of such taxes
or duties is required by law. In any such event, however, the Guarantor shall (a) promptly notify
the Guaranteed Party, in writing, of such requirement, (b) pay to the relevant authorities the full
amount required to be deducted or withheld (including the full amount required to be deducted or
withheld from any additional amount paid to the Guaranteed Party pursuant to this paragraph), (c)
promptly forward to the Guaranteed Party an official receipt (or a certified copy) evidencing such
payment, and (d) pay to the Guaranteed Party such additional amounts as may be necessary in order
that the net amount received by the Guaranteed Party after such withholding or deduction shall
equal the full amounts of moneys which would have been received by the Guaranteed Party in the
absence of such withholding or deduction. The Guarantor will pay all stamp, transfer,
registration, documentation, or other similar taxes payable in connection with this Performance
Guarantee and will keep the Guaranteed Party indemnified against failure to pay the same.
8. No Waiver; Cumulative Rights. No failure on the part of the Guaranteed Party to exercise, and
no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise by the Guaranteed Party of any right, remedy or power
hereunder preclude any other or future exercise of any right, remedy or power. Each and every
right, remedy and power hereby granted to the Guaranteed Party or allowed it by law or other
agreement shall be cumulative and not exclusive of any other, and may be exercised by the
Guaranteed Party at any time or from time to time. This Performance Guarantee shall remain in full
force and effect until the Obligations are paid in full. None of the terms or provisions of this
Performance Guarantee may be waived, amended, supplemented or otherwise modified, and no consent
with respect to any departure by the Guarantor from the terms hereof shall be effective, except as
set forth in a written instrument executed by the Guarantor and the Guaranteed Party.
9. Representations, Warranties and Covenants.
A. Guarantor hereby represents and warrants that:
(a) Guarantor is an organization duly organized or formed, validly existing and in good
standing under the laws of the State of Delaware and is duly qualified to do business, and is in
good standing in, every jurisdiction in which the nature of its business requires it to be so
qualified, except where the failure to be so qualified would not reasonably be expected to
have a Material Adverse Effect (as defined below);
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(b) the execution, delivery and performance of this Performance Guarantee have been and remain
duly authorized by all necessary organizational action and do not contravene any provision of (i)
Guarantor’s organizational documents, (ii) any law, rule or regulation, (iii) any contractual
restriction binding on Guarantor or its property or (iv) any order, writ, judgment, award,
injunction or decree binding on or affecting Guarantor or its property, except in the case of
clauses (ii), (iii) or (iv) where such contravention would not reasonably be expected to have a
Material Adverse Effect. This Performance Guarantee has been duly authorized, executed and
delivered by Guarantor;
(c) all consents, licenses, clearances, authorizations and approvals of, and registrations and
declarations with, any governmental authority or regulatory body necessary for the due execution,
delivery and performance of this Performance Guarantee have been obtained and remain in full force
and effect and all conditions thereof have been duly complied with, except where the failure to so
obtain such consents, licenses, clearances, authorizations and approvals, registration or
declarations or to satisfy the conditions thereof would not reasonably be expected to have a
Material Adverse Effect, and no other action by, and, except as contemplated herein, no notice to
or filing with, any governmental authority or regulatory body is required in connection with the
execution, delivery or performance of this Performance Guarantee;
(d) this Performance Guarantee constitutes the legal, valid and binding obligation of
Guarantor enforceable against Guarantor in accordance with its terms, subject to general principles
of equity and applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally;
(e) Guarantor is not an “investment company” within the meaning of the Investment Company Act
of 1940, as amended from time to time, or any successor statute;
(f) no report, information or document prepared by the Obligor or Guarantor pursuant to this
Performance Guarantee, furnished or to be furnished by the Obligor or Guarantor to the Guaranteed
Party in connection with this Performance Guarantee, is or will be inaccurate in any material
respect as of the date it is or shall be dated or (except as otherwise disclosed to the Guaranteed
Party, as the case may be, at such time) as of the date so furnished, and no such document contains
or will contain any material misstatement of fact; and
(g) there is no action, suit, proceeding, investigation, or arbitration pending or, to
Guarantor’s knowledge, threatened against Guarantor which would reasonably be expected to result in
the occurrence of a Material Adverse Effect.
B. Guarantor covenants and agrees with the Guaranteed Party that, from and after the date
hereof:
(a) Guarantor will (i) preserve and maintain its legal existence, except as provided in
paragraph (b) below, (ii) preserve and maintain all of its rights, privileges, licenses and
franchises to the extent that a failure to do so would reasonably be expected to result in a
Material Adverse Effect; (iii) comply with the requirements of all applicable laws, rules,
regulations and orders of Governmental Authorities and other Requirements of Law if failure to
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comply with such requirements would reasonably be expected (either individually or in the
aggregate) to have a Material Adverse Effect; (iv) keep adequate records and books of account, in
which complete entries will be made in accordance with GAAP consistently applied; and (v) permit
representatives of the Guaranteed Party, during normal business hours upon prior written notice at
a mutually desirable time, to examine, copy and make extracts from its books, and records, to
inspect any of its properties, and to discuss its business and affairs with its officers, all to
the extent reasonably requested by the Guaranteed Party;
(b) Guarantor shall not liquidate, wind up or dissolve itself (or suffer any liquidation,
winding up or dissolution) or sell all or substantially all of its assets, the proceeds of which
shall be used to pay any amounts then owing to the Guaranteed Party; provided, that Guarantor may
merge or consolidate with (i) any wholly owned subsidiary of Guarantor, or (ii) any other Person if
Guarantor is the surviving entity; provided further, that if after giving effect to such merger or
consolidation, no default would exist hereunder;
(c) Guarantor shall give notice to the Guaranteed Party promptly after Guarantor becomes aware
of the occurrence of any default on the part of Guarantor under this Performance Guarantee;
(d) (i) So long as Guarantor is required to file reports with the Securities and Exchange
Commission pursuant to Sections 13 or 15(d) of the Exchange Act, Guarantor shall deliver to the
Guaranteed Party within five business days of the date that it files such reports with the
Securities and Exchange Commission a copy of its Form 10-Q or Form 10-K, as the case may be, as
filed with the Securities and Exchange Commission (but excluding any exhibits thereto); provided
that, so long as such reports are available on a website maintained by or on behalf of the
Securities and Exchange Commission, the failure of Guarantor to provide copies of such reports to
the Guaranteed Party shall not be deemed a breach of this covenant or otherwise constitute a
default under this Performance Guarantee; and
(ii) If Guarantor is not required to file reports with the Securities and Exchange
Commission pursuant to Sections 13 or 15(d) of the Exchange Act, Guarantor shall deliver
to the Guaranteed Party (a) as soon as available and in any event within forty-five (45)
calendar days after the end of each of the first three quarters of each fiscal year of
Guarantor, the unaudited balance sheets of Guarantor as at the end of such period and
the related unaudited consolidated statements of income for Guarantor for the portion of
the fiscal year through the end of such period, accompanied by a certificate of an
officer of Guarantor, which certificate shall state that said financial statements
fairly present in all material respects the financial condition and results of
operations of Guarantor in accordance with GAAP, consistently applied, as at the end of,
and for, such period (subject to normal year-end adjustments); and (b) as soon as
available and in any event within ninety (90) days after the end of each fiscal year of
Guarantor, the balance sheets of Guarantor as at the end of such fiscal year and the
related consolidated statements of income and retained earnings and of cash flows for
Guarantor for such year, accompanied by an opinion thereon of independent certified
public accountants of recognized national
standing, which opinion and the scope of audit shall be “acceptable to the
Guaranteed Party in its sole discretion, shall have no “going concern” qualification and
shall state
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that said financial statements fairly present the financial condition and
results of operations of Guarantor as at the end of, and for, such fiscal year in
accordance with GAAP.
C. For purposes of this Performance Guarantee, “Material Adverse Effect” means a material adverse
effect on (i) the business, assets, operations, prospects or condition, financial or otherwise of
Guarantor or (ii) the ability of Guarantor to perform any of its obligations under this Performance
Guarantee.
10. Credit Agreement Trigger Event. If any “Event of Default” (as defined in the Credit Facility)
shall have occurred under the Credit Agreement, then the occurrence of such Event of Default shall
be a “Trigger Event” under this Performance Guarantee. At any time following the occurrence of a
Trigger Event hereunder, the Guaranteed Party may, at its option and among other things, require
the Guarantor or any of its Affiliates or Subsidiaries having a credit rating and payment ability
satisfactory to the Guaranteed Party promptly to issue a Performance Guarantee to the Guaranteed
Parties in substantially the same form and containing substantially the same substance as this
Performance Guarantee, and the Guarantor agrees to provide or cause to he provided such guarantee.
11. Guarantee Events of Default.
A. If any of the following events shall occur and be continuing (each, a “Guarantee Event of
Default”):
Default”):
(a) The Guarantor shall (i) fail to perform, or cause to be performed, any Obligation when due
in accordance with the terms hereof and such failure shall continue unremedied for more than five
Business Days after written notice thereof has been given to the Guarantor by the Guaranteed Party;
or
(b) Any representation or warranty made or deemed made by the Guarantor herein or in any
certified statement furnished by it in connection with this Performance Guarantee or any Credit
Document shall prove to have been incorrect on or as of the date made or deemed made or certified
if the facts or circumstances incorrectly represented or certified result in a Material Adverse
Effect; or
(c) The Guarantor shall default in the observance or performance of any other agreement in
this Performance Guarantee (other than as provided in paragraphs (a) and (b) of this Paragraph 11),
and such default shall continue unremedied for a period of 30 days after written notice thereof
shall have been given to the Guarantor by the Guaranteed Party; or
(d) [reserved]
(e) (i) The Guarantor shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankruptcy or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief
with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator
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or other similar official for it or for all or any substantial part of its assets, or
the Guarantor shall make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against the Guarantor any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against Guarantor any case, proceeding or other action seeking issuance of
a warrant of attachment, execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof;
(f) One or more judgments or decrees shall (i) be entered against the Guarantor, (ii) not have
been vacated, discharged, satisfied, stayed or bonded pending appeal within 60 days from the entry
thereof and (iii) involve a liability (not paid or to the extent otherwise covered by insurance) of
$150,000,000 or more in the aggregate, in the case of all such judgments and decrees; or
(g) A Change of Control shall have occurred;
then, and in any such event, (A) if such event is a Guarantee Event of Default specified in clause
(i) or (ii) of paragraph (e) above with respect to the Guarantor, automatically all outstanding
Loans under the Credit Agreement shall immediately terminate and all amounts owing under the Credit
Documents and this Performance Guarantee shall immediately become due and payable, and (B) if such
event is any other Guarantee Event of Default, either or both of the following actions may be
taken: (i) the Guaranteed Party may, by notice to the Guarantor and the Obligor declare all
outstanding Loans under the Credit Agreement to be terminated forthwith, whereupon such Loans shall
immediately terminate; and (ii) the Guaranteed Party may, by notice to the Guarantor and the
Obligor, declare all amounts owing under the Credit Documents and this Performance Guarantee to be
due and payable forthwith, whereupon the same shall immediately become due and payable. Except as
expressly provided above in this Paragraph 11, presentment, demand, protest and all other notices
of any kind are hereby expressly waived.
B. For purposes of this Performance Guarantee, “Indebtedness” means at any date, the amount
outstanding on such date under notes, bonds, debentures or other similar evidences of indebtedness
for money borrowed (including, without limitation, indebtedness for borrowed money evidenced by a
loan account), and “Change of Control” means the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) of membership interests representing more than 50% of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of the Guarantor, which shall not
have been approved by the Guaranteed Party (such approval not to be unreasonably withheld).
12. Assignment. Neither Guarantor nor the Guaranteed Party may assign its rights, interests or
obligations hereunder to any other Person (except by operation of law) without the prior
written consent of Guarantor or the Guaranteed Party, as the case may be; provided,
however, that if a default of the Obligor or Guarantor has occurred and is continuing, the
Guaranteed Party
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may assign all or a portion of its rights and obligations under this Guaranty to
any Person, including an Affiliate of the Guaranteed Party. “Affiliate”, with respect to any
Person, means any other Person which, directly or indirectly, controls, is controlled by, or is
under common control with, such Person. For purposes of this definition, “control” (together with
the correlative meanings of “controlled by” and “under common control with”) means possession,
directly or indirectly, of the power (a) to vote 10% or more of the securities (on a fully diluted
basis) having ordinary voting power for the directors or managing general partners (or their
equivalent) of such Person, or (b) to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by contract, or otherwise.
13. Notices. All notices or demands on Guarantor or the Guaranteed Party shall be deemed effective
when received, shall be in writing and shall be delivered by hand or by registered mail, or by
facsimile transmission promptly confirmed by registered mail, addressed:
(a) to Guarantor at:
Residential Capital, LLC
Xxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
Xxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
(b) to the Guaranteed Party, at the address specified in Section 9.2 of the Credit
Agreement.
or to such other address or facsimile number as Guarantor shall have notified the Guaranteed Party
in a written notice delivered to the Guaranteed Party.
14. Continuing Guarantee. This Performance Guarantee shall remain in full force and effect and
shall be binding on Guarantor, its successors and permitted assigns until all of the Obligations
have been satisfied in full.
15. Indemnification. Guarantor (the “Indemnifying Party”) agrees to hold the Guaranteed Party and
each of its officers, directors and employees (each an “Indemnified Party”) harmless from and
indemnify each Indemnified Party against all liabilities, losses, damages, judgments, costs and
expenses of any kind (including reasonable fees and expenses of counsel) that may be imposed on,
incurred by or asserted against such Indemnified Party relating to or resulting from the
Indemnifying Party’s negligence, bad faith, willful misconduct or material breach of its
representations, warranties, covenants or obligations under this Performance Guarantee.
16. Governing Law. This Performance Guarantee shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to the conflicts of law principles
thereof (other than section 5-1401 and 5-1402 of the New York General Obligations Law).
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17. Severability. Each provision and agreement herein shall be treated as separate and independent
from any other provision or agreement herein and shall be enforceable, to the extent permitted by
law, notwithstanding the unenforceability of any such other provision or agreement
18. WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS PERFORMANCE GUARANTEE.
19. JURISDICTION. GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY COURT
OF THE STATE OF NEW YORK, BOROUGH OF MANHATTAN, OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
PERFORMANCE GUARANTEE. GUARANTOR HEREBY SUBMITS TO, AND WAIVES ANY OBJECTION IT MAY HAVE TO,
EXCLUSIVE PERSONAL JURISDICTION AND VENUE IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX AND THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WITH RESPECT TO ANY DISPUTES ARISING
OUT OF THIS PERFORMANCE GUARANTEE.
20. Miscellaneous. This Performance Guarantee contains the entire and exclusive agreement of the
parties hereto with reference to the matters discussed herein. This Performance Guarantee
supersedes all prior drafts and communications with respect thereto. The headings of paragraphs
herein are inserted only for convenience and shall in no way define, describe or limit the scope or
intent of any provision of this Performance Guarantee. If any term or provision of this
Performance Guarantee shall be deemed prohibited by or invalid under any applicable law, such
provision shall be invalidated without affecting the remaining provisions of this Performance
Guarantee.
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IN WITNESS WHEREOF, this Performance Guarantee has been duly executed and delivered by
Guarantor to the Guaranteed Parties as of the date first above written.
| RESIDENTIAL CAPITAL, LLC, | ||||
| as Guarantor | ||||
| By: /s/ Xxxxxxx X. Xxxxx III | ||||
| Name: Xxxxxxx X. Xxxxx III | ||||
| Title: Sr. Managing Director & Treasurer |
Guarantee
