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EXHIBIT 10(K)(8)
UNCONDITIONAL GUARANTY
December 30, 1998
Xxxxx Equity, Inc.
0000 Xxxxxxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
("Borrower")
Xxxxx Real Estate Services, Inc.
0000 Xxxxxxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Southeast Properties Holding Corporation
0000 Xxxxxxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
(collectively, "Guarantor")
First Union National Bank,
as Agent for the Lenders
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
(hereinafter referred to as "Agent")
To induce Agent to make, extend or renew loans, advances, credit, or other
financial accommodations to or for the benefit of Borrower, and in
consideration of loans, advances, credit, or other financial accommodations
made, extended or renewed to or for the benefit of Borrower, Guarantor hereby
absolutely, irrevocably for the benefit of the Lenders (as defined in the Loan
Agreement) and unconditionally guarantees to Agent and its successors, assigns
and affiliates the timely payment and performance of all liabilities and
obligations of Borrower to Agent, under the Second Amended and Restated
Revolving Credit Loan Agreement by and between Borrower, Agent, and the Lenders
(as defined therein) dated as of December 30, 1998 (the "Loan Agreement"), or
under any promissory note in favor of any of the Lenders issued in connection
with the Loan Agreement, however and whenever incurred or evidenced, whether
primary, secondary, direct, indirect, absolute, contingent, due or to become
due, now existing or hereafter contracted or acquired, and all modifications,
extensions or renewals thereof, including without limitation all principal,
interest, charges, and costs and expenses incurred thereunder (including
attorneys' fees and other costs of collection incurred, regardless of whether
suit is commenced) (collectively, the "Guaranteed Obligations").
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Guarantor further covenants and agrees:
GUARANTORS' LIABILITY. This Guaranty is a continuing and unconditional guaranty
of payment and performance and not of collection. This Guaranty does not impose
any obligation on Agent to extend or continue to extend credit or otherwise
deal with Borrower at any subsequent time. This Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
the Guaranteed Obligations is rescinded, avoided or for any other reason must
be returned by Agent or any Lender, and the returned payment shall remain
payable as part of the Guaranteed Obligations, all as though such payment had
not been made. Except to the extent the provisions of this Guaranty give the
Agent or any Lender additional rights, this Guaranty shall not be deemed to
supersede or replace any other guaranties given to Agent or any Lender by
Guarantor; and the obligations guaranteed hereby shall be in addition to any
other obligations guaranteed by Guarantor pursuant to any other agreement of
guaranty given to Agent or any Lender and other guaranties of the Guaranteed
Obligations.
APPLICATION OF PAYMENTS, BANK LIEN AND SET-OFF. Monies received from any source
by Agent or any Lender for application toward payment of the Guaranteed
Obligations may be applied to such Guaranteed Obligations in any manner or
order deemed appropriate by Agent or any Lender. If a Default occurs, Agent or
any Lender is authorized to exercise its right of set-off or to foreclose its
lien against the any funds of Guarantor held by Agent or any Lender, without
advance notice.
CONSENT TO MODIFICATIONS. GUARANTOR CONSENTS AND AGREES THAT AGENT MAY FROM
TIME TO TIME, IN ITS SOLE DISCRETION, WITHOUT AFFECTING, IMPAIRING, LESSENING
OR RELEASING THE OBLIGATIONS OF GUARANTOR HEREUNDER: (a) extend or modify the
time, manner, place or terms of payment or performance and/or otherwise change
or modify the credit terms of the Guaranteed Obligations; (b) increase, renew,
or enter into a novation of the Guaranteed Obligations; (c) waive or consent to
the departure from terms of the Guaranteed Obligations; (d) permit any change
in the business or other dealings and relations of Borrower or any other
guarantor with Agent or any Lender; (e) proceed against, exchange, release,
realize upon, or otherwise deal with in any manner any collateral that is or
may be held by Agent or any Lender in connection with the Guaranteed
Obligations; and (f) proceed against, settle, release, or compromise with
Borrower, any insurance carrier, or any other person or entity liable as to any
part of the Guaranteed Obligations, and/or subordinate the payment of any part
of the Guaranteed Obligations to the payment of any other obligations, which
may at any time be due or owing to Agent or any Lender; all in such manner and
upon such terms as Agent may deem appropriate, and without notice to or further
consent from Guarantor. No invalidity, irregularity, discharge or
unenforceability of, or action or omission by Agent relating to any part of,
the Guaranteed Obligations or any security therefor shall affect or impair this
Guaranty.
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WAIVERS AND ACKNOWLEDGMENTS. GUARANTOR WAIVES AND RELEASES THE FOLLOWING
RIGHTS, DEMANDS, AND DEFENSES that such Guarantor may have with respect to
Agent or any Lender and collection of the Guaranteed Obligations: (a)
promptness and diligence in collection of any of the Guaranteed Obligations
from Borrower or any other person liable thereon, and in foreclosure of any
security interest serving as collateral for the Guaranteed Obligations; (b) any
law or statute that requires that Agent or any Lender make demand upon, assert
claims against, or collect from Borrower or other persons or entities,
foreclose any security interest, exhaust any remedies, or take any other action
against Borrower or other persons or entities prior to making demand upon,
collecting from or taking action against any Guarantor with respect to the
Guaranteed Obligations, including any such rights Guarantor might otherwise
have had under any applicable law; (c) any law or statute that requires that
Borrower or any other person be joined in, notified of or made part of any
action against Guarantor; (d) that Agent or any Lender preserve, insure or
perfect any security interest in collateral or sell or dispose of collateral in
a particular manner or at a particular time; (e) notice of extensions,
modifications, renewals, or novations of the Guaranteed Obligations, of any new
transactions or other relationships between Agent, any Lender, Borrower and/or
any guarantor, and of changes in the financial condition of, ownership of, or
business structure of Borrower or any other guarantor; (f) presentment,
protest, notice of dishonor, notice of default, demand for payment, notice of
intention to accelerate maturity, notice of acceleration of maturity, notice of
sale, and all other notices of any kind whatsoever; (g) the right to assert
against Agent or any Lender any defense (legal or equitable), set-off,
counterclaim, or claim that Guarantor may have at any time against Borrower or
any other party liable to Agent or any Lender; (h) all defenses relating to
invalidity, insufficiency, unenforceability, enforcement, release or impairment
of Agent's or any Lender's lien on any collateral, of the Loan Documents, or of
any other guaranties held by Agent or any Lender; (i) any claim or defense that
acceleration of maturity of the Guaranteed Obligations is stayed against
Guarantor because of the stay of assertion or of acceleration of claims against
any other person or entity for any reason including the bankruptcy or
insolvency of that person or entity; and (j) the benefit of any exemption
claimed by Guarantor. Guarantor acknowledges and represents that Guarantor has
relied upon its own due diligence in making its own independent appraisal of
Borrower, Borrower's business affairs and financial condition, and any
collateral; Guarantor will continue to be responsible for making its own
independent appraisal of such matters; and Guarantor has not relied upon and
will not hereafter rely upon Agent or any Lender for information regarding
Borrower or any collateral.
INTEREST. Regardless of any other provision of this Guaranty or other Loan
Documents, if for any reason the effective interest on any of the Guaranteed
Obligations should exceed the maximum lawful interest, at the time performance
of such provision will be due, then ipso facto, the obligation to be fulfilled
will be reduced
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to the maximum limit of such validity, and if for any circumstances whatsoever
Agent will ever receive interest, the amount of which would exceed the highest
lawful rate, such amount which would be excessive interest will be applied to
the reduction of the principal balance remaining unpaid under the Guaranteed
Obligations, and not to the payment of interest. At all times thereafter the
rate of interest in effect will continue at such maximum rate until otherwise
adjusted in accordance with the terms of this Guaranty and the Loan Agreement.
ATTORNEY'S FEES AND OTHER COSTS OF COLLECTION. Guarantor shall pay all of
Agent's and any Lender's reasonable expenses incurred to enforce or collect any
of the Guaranteed Obligations, including, without limitation, reasonable
arbitration, paralegals', attorneys' and experts' fees and expenses, whether
incurred without the commencement of a suit, in any suit, arbitration, or
administrative proceeding, or in any appellate or bankruptcy proceeding.
MISCELLANEOUS. (a) ASSIGNMENT. This Guaranty and the other Loan Documents shall
inure to the benefit of and be binding upon the parties and their respective
heirs, legal representatives, successors and assigns. Agent's interests in and
rights under this Guaranty and the other Loan Documents are freely assignable,
in whole or in part, by Agent. Any assignment shall not release Guarantor from
the Guaranteed Obligations. (b) APPLICABLE LAW; CONFLICT BETWEEN DOCUMENTS.
This Guaranty and the other Loan Documents shall be governed by and construed
under the laws of the State of North Carolina. If the terms of this Guaranty
should conflict with the terms of any commitment letter that survives closing,
the terms of this Guaranty shall control. (c) JURISDICTION. Guarantor
irrevocably agrees to non-exclusive personal jurisdiction in the State of North
Carolina. (d) SEVERABILITY. If any provision of this Guaranty or of the other
Loan Documents shall be prohibited or invalid under applicable law, such
provision shall be ineffective but only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty or other document. (e) NOTICES. Any
notices to Guarantor shall be sufficiently given, if in writing and mailed or
delivered to Guarantor's address shown above or such other address as provided
hereunder, and to Agent, if in writing and mailed or delivered to Agent's
office address shown above or such other address as Agent may specify in
writing from time to time. In the event that Guarantor changes its address at
any time prior to the date the Guaranteed Obligations are paid in full,
Guarantor agrees to promptly give written notice of said change of address by
registered or certified mail, return receipt requested, all charges prepaid.
(f) PLURAL; CAPTIONS. All references in the Loan Documents to borrower,
guarantor, person, document or other nouns of reference mean both the singular
and plural form, as the case may be, and the term "person" shall mean any
individual, person or entity. The captions contained in the Loan Documents are
inserted for convenience only and shall not affect the meaning or
interpretation of the Loan Documents. (g) BINDING CONTRACT. Guarantor, by
execution of and Agent by acceptance of this Guaranty, agree that each
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party is bound to all terms and provisions of this Guaranty. (h) AMENDMENTS,
WAIVERS AND REMEDIES. No waivers, amendments or modifications of this Guaranty
and the other Loan Documents shall be valid unless in writing and signed by an
officer of Agent. No waiver by Agent of any Default shall operate as a waiver
of any other Default or the same Default on a future occasion. Neither the
failure nor any delay on the part of Agent in exercising any right, power, or
privilege granted pursuant to this Guaranty and the other Loan Documents shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise or the exercise of any other right,
power or privilege. All remedies available to Agent with respect to this
Guaranty and the other Loan Documents and remedies available at law or in
equity shall be cumulative and may be pursued concurrently or successively. (i)
PARTNERSHIPS. If Guarantor is or becomes a partnership, the obligations,
liabilities and agreements on the part of such Guarantor shall remain in full
force and effect and fully applicable notwithstanding any changes in the
individuals comprising the partnership. The term "Guarantor" includes any
altered or successive partnerships, and predecessor partnership(s) and the
partners shall not be released from any obligations or liabilities hereunder.
(j) LOAN DOCUMENTS. The term "Loan Documents" refers to all documents executed
in connection with the Guaranteed Obligations and may include, without
limitation, that certain credit facility made available by Agent to Borrower
pursuant to that certain Second Amended and Restated Revolving Credit Loan
Agreement as of December 30, 1998 between Agent and Borrower and the other
documents relating thereto, any commitment letters that survive closing, other
loan agreements, other guaranty agreements, security agreements, instruments,
financing statements, mortgages, deeds of trust, deeds to secure debt, letters
of credit and any amendments or supplements thereto(excluding swap agreements
as defined in 11 U.S. Code ss. 101).
ARBITRATION. Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to this Guaranty and other Loan
Documents ("Disputes") between or among parties to this Guaranty shall be
resolved by binding arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, disputes as to whether a matter is subject to arbitration,
claims brought as class actions, claims arising from Loan Documents executed in
the future, or claims arising out of or connected with the transaction
reflected by this Guaranty.
Arbitration shall be conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in the City of Charlotte, State of
North Carolina. The expedited procedures set forth in Rule 51 et seq. of the
Arbitration Rules shall be applicable to claims of less
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than $1,000,000.00. All applicable statutes of limitation shall apply to any
Dispute. A judgment upon the award may be entered in any court having
jurisdiction. The panel from which all arbitrators are selected shall be
comprised of licensed attorneys. The single arbitrator selected for expedited
procedure shall be a retired judge from the highest court of general
jurisdiction, state or federal, of the state where the hearing will be
conducted or if such person is not available to serve, the single arbitrator
may be a licensed attorney. Notwithstanding the foregoing, this arbitration
provision does not apply to disputes under or related to swap agreements.
PRESERVATION AND LIMITATION OF REMEDIES. Notwithstanding the preceding binding
arbitration provisions, Agent and Guarantor agrees to preserve, without
diminution, certain remedies that any party hereto may employ or exercise
freely, independently or in connection with an arbitration proceeding or after
an arbitration action is brought. Agent and Guarantor shall have the right to
proceed in any court of proper jurisdiction or by self-help to exercise or
prosecute the following remedies, as applicable: (i) all rights to foreclose
against any real or personal property or other security by exercising a power
of sale granted under Loan Documents or under applicable law or by judicial
foreclosure and sale, including a proceeding to confirm the sale; (ii) all
rights of self-help including peaceful occupation of real property and
collection of rents, set-off, and peaceful possession of personal property;
(iii) obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and filing an
involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by
confession of judgment. Preservation of these remedies does not limit the power
of an arbitrator to grant similar remedies that may be requested by a party in
a Dispute.
Guarantor and Agent agree that they shall not have a remedy of punitive or
exemplary damages against the other in any Dispute and hereby waive any right
or claim to punitive or exemplary damages they have now or which may arise in
the future in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially.
CONFLICT WITH CREDIT AGREEMENT. This Unconditional Guaranty is being executed
in connection with the Loan Agreement. In the event of a conflict between the
terms of the Loan Agreement and this Unconditional Guaranty, the terms of the
Loan Agreement shall prevail.
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IN WITNESS WHEREOF, Guarantor, on the day and year first written above, has
caused this Unconditional Guaranty to be executed and delivered by a duly
authorized officer thereof.
Xxxxx Real Estate Services, Inc.,
a Florida corporation
Taxpayer ID No: 00-0000000
By /s/ W. Xxxxxxxx Xxxxxxx
-----------------------------------------------------
Name: W. Xxxxxxxx Xxxxxxx
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Title: Corporate Secretary & Vice President
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Southeast Properties Holding Corporation,
a Florida corporation
Taxpayer ID No: 00-0000000
By /s/ W. Xxxxxxxx Xxxxxxx
-----------------------------------------------------
Name: W. Xxxxxxxx Xxxxxxx
----------------------------------------------
Title: Corporate Secretary & Vice President
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