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Exhibit 10(h)
CONTINUING GUARANTY
WHEREAS, James F. Wirth and Gail J. Wirth (collectively, the "Makers")
executed and delivered that certain promissory note dated January 30, 1998 in
the face principal amount of $225,000 (as heretofore and hereafter amended,
supplemented or replaced, the "Note") to JAMES H. BERICK, a resident of
Cleveland, Ohio (together with his heirs, personal representatives and assigns
as holders of the Note, the "Holder");
WHEREAS, in connection with certain transactions involving the Makers,
the undersigned RRF LIMITED PARTNERSHIP, a Delaware limited partnership (the
"Guarantor"), and Mid-America ReaFund Advisors, Inc., the Makers and the
Guarantor have requested that the Holder enter into that certain Consent
Agreement of even date herewith (the "Consent Agreement");
WHEREAS, without the Consent Agreement, certain transactions
contemplated by the Makers and the Guarantor would constitute a default under
the Note and entitle the Holder to accelerate the maturity of the indebtedness
evidenced thereby and exercise various other remedies; and the Guarantor desires
that no such default so arise and will derive substantial economic benefits as a
result of the Consent Agreement; and
WHEREAS, it is a condition precedent to the Holder's entering into the
Consent Agreement and to its effectiveness against the Holder that the Guarantor
execute and deliver this Guaranty; and the Guarantor desires that the Consent
Agreement become effective;
NOW, THEREFORE, in order to induce the Holder to enter into the Consent
Agreement, and in consideration of the benefits expected to accrue to the
Guarantor by reason thereof, and for other good and valuable consideration,
receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby
represents and warrants to, and covenants and agrees with the Holder, as
follows:
The Guarantor does hereby irrevocably and unconditionally guarantee to
the Holder the punctual (i) payment of the full amount, when due (whether by
demand, acceleration or otherwise), of the principal and interest on the Note,
and any amendment or supplement thereto whether now outstanding or hereafter
issued (including interest accruing thereon after the commencement of any case
or proceeding under any federal or state bankruptcy, insolvency or similar law
(a "Proceeding") whether or not a claim for such interest is allowable in such
Proceeding ("Post-Petition Interest")), and (ii) payment and performance of all
other obligations and liabilities of the Makers to the Holder under the Note and
each of the other documents pursuant to which it is obligated (including,
without limitation, the pledge agreement securing the Note), whether now or
hereafter existing, due or to become due, direct or contingent, joint, several
or independent, secured or unsecured and whether
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matured or unmatured (including Post-Petition Interest) (all of the liabilities
included in clauses (i) and (ii) of this paragraph are hereinafter collectively
referred to as the "Guaranteed Obligations"). This is a guaranty of payment and
performance and not of collection, and is the primary obligation of the
Guarantor; and the Holder may enforce this Guaranty against the Guarantor
without any prior pursuit or enforcement of the Guaranteed Obligations against
the Makers, any collateral, any right of set-off or similar right, any other
guarantor or other obligor or any other recourse or remedy in the power of the
Holder.
All payments made by the Guarantor under or by virtue of this Guaranty
shall be paid to the Holder at his office at 1350 Eaton Center, 1111 Superior
Avenue, Cleveland, Ohio 44114 or such other place as the Holder may hereafter
designate in writing. The Guarantor hereby agrees to make all payments under or
by virtue of this Guaranty to the Holder as aforesaid on demand.
The Guarantor hereby waives (i) notice of acceptance of this Guaranty,
notice of the creation, renewal or accrual of any of the Guaranteed Obligations
and notice of any other liability to which it may apply, and notice of or proof
of reliance by the Holder upon this Guaranty, (ii) diligence, protest, notice of
protest, presentment, demand of payment, notice of dishonor or nonpayment of any
of the Guaranteed Obligations, suit or taking other action or making any demand
against, and any other notice to the Makers or any other party liable thereon,
(iii) any defense based upon any statute or rule of law to the effect that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal, (iv) any defense based upon the
Holder's administration or handling of the Guaranteed Obligations, except
behavior which amounts to bad faith, and (v) to the fullest extent permitted by
law, any defenses or benefits which may be derived from or afforded by law which
limit the liability of or exonerate guarantors or sureties, or which may
conflict with terms of this Guaranty.
So far as the Guarantor is concerned, the Holder may, at any time and
from time to time, without the consent of, or notice to, the Guarantor, and
without impairing or releasing any of the Guaranteed Obligations hereunder, upon
or without any terms or conditions and in whole or in part:
1. modify or change the manner, place or terms of, and/or change
or extend the time of payment of, renew or alter, any of the
Guaranteed Obligations, any security therefor, or any
liability incurred directly or indirectly in respect thereof,
and this Guaranty shall apply to the Guaranteed Obligations as
so modified, changed, extended, renewed or altered;
2. request, accept, sell, exchange, release, subordinate,
surrender, realize upon or otherwise deal with, in any manner
and in any order, (a) any other guaranty by whomsoever at any
time made of the Guaranteed Obligations or any liabilities
(including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any offset or
right with respect thereto, and (b) any property by
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whomsoever at any time pledged, mortgaged or otherwise
encumbered to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset or right with respect thereto;
3. exercise or refrain from exercising any rights against the
Makers or against any collateral or others (including, without
limitation, any other guarantor) or otherwise act or refrain
from acting;
4. settle or compromise any of the Guaranteed Obligations, and
security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof
or hereof, and subordinate the payment of all or any part
thereof to the payment of any liability (whether due or not)
of the Makers to creditors of the Makers other than the Holder
when, in the Holder's sole judgment, he considers such
subordination necessary or helpful in the protection of his
interest or the exercise of his remedies, including, without
limitation, the sale or other realization upon collateral;
5. assign the Guaranteed Obligations or any rights related
thereto in whole or in part;
6. apply in the manner determined by the Holder any sums by
whomsoever paid or howsoever realized to any of the Guaranteed
Obligations, regardless of what liability or liabilities of
the Makers remain unpaid; and
7. amend or otherwise modify, consent to or waive any breach of,
or any act, omission or default under the Note, or any
agreements, instruments or documents referred to therein or
executed and delivered pursuant thereto or in connection
therewith.
This Guaranty and the obligations of the Guarantor hereunder shall be
valid and enforceable and shall not be subject to limitation, impairment or
discharge for any reason (other than the payment in full of the Guaranteed
Obligations), including, without limitation, the occurrence of any of the
following, whether or not the Guarantor shall have had notice or knowledge of
any of them: (i) any failure to assert or enforce or agreement not to assert or
enforce, or the stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand of any right
power or remedy with respect to the Guaranteed Obligations or any agreement
relating thereto or with respect to any other guaranty thereof or security
therefor, (ii) any waiver, amendment or modification of, or any consent to
departure from, any of the terms or provisions (including, without limitation,
provisions relating to default) of the Note or any other agreement at any time
executed in connection therewith, (iii) the Guaranteed Obligations or any
portion thereof at any time being found to be illegal, invalid or unenforceable
in any respect, (iv) the application of payments received from any source to the
payment of indebtedness other than the Guaranteed
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Obligations, even though the Holder might have elected to apply such payment to
the payment of all or any part of the Guaranteed Obligations, (v) any failure to
perfect or continue perfection of a security interest in any collateral which
secures any of the Guaranteed Obligations, (vi) any defenses, set-offs or
counterclaims which the Makers may allege or assert against the Holder in
respect of the Guaranteed Obligations, (vii) the avoidance or voidability of the
Guaranteed Obligations under the Bankruptcy Code or other applicable laws,
(viii) any defense based upon the negligence of the Holder, including, without
limitation, the failure to record an interest under any mortgage, the failure to
perfect any security interest, or the failure to file a claim in any bankruptcy
of the Makers or either of them or of any other guarantor, (ix) any defense
based upon the impairment of any subrogation or reimbursement rights that the
Guarantor might have, and (x) any other act or thing or omission which may or
might in any manner or to any extent vary the risk of the Guarantor as an
obligor in respect of the Guaranteed Obligations.
The Guarantor makes the following representations and warranties, which
shall survive the execution and delivery of this Guaranty:
The execution and delivery of this Guaranty has been duly
authorized by all necessary partnership action on the part of
the general partner of the Guarantor and has been duly
authorized by all necessary action of the board of trustees of
such general partner.
Neither the execution and delivery of this Guaranty nor the
consummation of the transactions herein contemplated, nor
compliance with the terms and provisions hereof, will
contravene any provision of law, statute, rule or regulation
to which the Guarantor is subject or any judgment, decree,
award, franchise, order or permit, or will conflict or will be
inconsistent with, or will result in any breach of, any of the
terms, covenants or provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
security interest, charge or other encumbrance upon any of the
properties or assets of the Guarantor pursuant to the terms of
any indenture, mortgage, deed of trust, agreement or other
instrument to which the Guarantor is a party or by which it be
bound or to which it may be subject, including, without
limitation, the Guarantor's limited partnership agreement.
Any and all rights and claims of the Guarantor against the Makers or
any of their property, arising by reason of any payment by the Guarantor to the
Holder pursuant to the provisions of this Guaranty, shall be subordinate and
subject in right of payment to the prior and indefeasible payment in full of all
Guaranteed Obligations to the Holder, and until such time, the Guarantor shall
have no right of subrogation, contribution, reimbursement or similar right and
hereby waives any right to enforce any remedy the Holder or the Guarantor may
now or hereafter have against the Makers, any endorser of any other guarantor of
all or any part of the Guaranteed Obligations of the Makers and any right to
participate in, or benefit from, any security given to the Holder to secure any
Guaranteed
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Obligations. Any promissory note evidencing such liability of the Makers to the
Guarantor shall be non-negotiable and shall expressly state that it is
subordinated pursuant to this Guaranty. All liens and security interests of the
Guarantor, whether now or hereafter arising and however existing, in any assets
of the Makers or any assets securing Guaranteed Obligations shall be and hereby
are subordinated to the rights and interests of the Holder in those assets until
the prior and indefeasible payment in full of all Guaranteed Obligations to the
Holder and termination of all financing arrangements between the Makers and the
Holder.
The Guarantor hereby agrees to defend, indemnify and hold harmless the
Holder from and against any losses, costs or expenses (including, without
limitation, reasonable attorneys' fees and litigation costs) incurred by the
Holder in connection with the Holder's collection of any sum due hereunder or
his enforcement of his rights hereunder.
All notices, requests, demands or other communications hereunder shall
be in writing, either by letter (delivered by hand or commercial delivery
service or sent by certified mail, return receipt requested) or telegram,
addressed as follows:
If to the Guarantor:
Suite 201
1625 E. Northern Avenue
Phoenix, AZ 85020
Attn: James F. Wirth
If to the Holder:
1350 Eaton Center
1111 Superior Avenue
Cleveland, Ohio 44114
Any notice, request, demand or other communication hereunder shall be
deemed to have been duly given when deposited in the mails, postage prepaid, or
in the case of telegraphic notice, when delivered to the telegraph company,
addressed as aforesaid. The Holder and any Guarantor may change the person or
address to whom or which notices are to be given hereunder, by notice duly given
hereunder.
The Guarantor acknowledges that the Guarantor is relying upon the
Guarantor's own knowledge and is fully informed with respect to the financial
condition of each of the Makers. The Guarantor assumes full responsibility for
keeping fully informed of the financial condition of the Makers and all other
circumstances affecting the Makers' ability to perform their obligations to the
Holder, and agrees that the Holder will have no duty to report to the Guarantor
any information that
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the Holder receives about the Makers' financial condition or any circumstances
bearing on the Makers' ability to perform all or any portion of the Guaranteed
Obligations, regardless of whether the Holder has reason to believe that any
such facts materially increase the risk beyond that which the Guarantor intends
to assume or has reason to believe that such facts are unknown to the Guarantor
or has a reasonable opportunity to communicate such facts to the Guarantor.
No delay on the part of the Holder in exercising any of his options,
powers or rights, and no partial or single exercise thereof, whether arising
hereunder, under the Note, or otherwise, shall constitute a waiver thereof or
affect any right hereunder. No waiver of any such rights and no modification,
amendment or discharge of this Guaranty shall be deemed to be made by the Holder
or shall be effective unless the same shall be in writing signed by the Holder,
and then such waiver shall apply only with respect to the specific instance
involved and shall in no way impair the rights of the Holder or the obligations
of the Guarantor to the Holder in any other respect at any other time.
Whenever the Holder shall credit any payment to the Guaranteed
Obligations or any part thereof, whatever the source or form of payment, the
credit shall be conditional as to the Guarantor unless and until the payment
shall be final and valid and indefeasible as to all the world. Without limiting
the generality of the foregoing, the Guarantor agrees that if any check or other
instrument so applied shall be dishonored by the drawer or any party thereto, or
if any proceeds of collateral so applied shall thereafter be recovered by any
trustee in bankruptcy or anyone else, the Holder in each case may reverse any
entry relating thereto in his books and the Guarantor shall remain liable
therefor even if the Holder may no longer have in his possession any evidence of
the Guaranteed Obligations to which the payment in question was applied.
This Guaranty and the respective rights and obligations of the Holder
and the Guarantor hereunder shall be construed and enforced in accordance with
the laws of the State of Ohio applicable to contracts made and to be performed
wholly within such state. The Guarantor irrevocably consents that service of
notice, summons or other process in any action or suit in any court of record to
enforce this Guaranty may be made upon the Guarantor by mailing a copy of the
summons to the Guarantor by certified or registered mail, at the address
specified above. The Guarantor hereby waives the right to interpose
counterclaims or set-offs of any kind and description in any such action or suit
arising hereunder or in connection herewith.
This Guaranty shall be binding upon the Guarantor and its successors
and assigns, and shall inure to the benefit of the Holder and his heirs,
personal representatives and assigns. This Guaranty embodies the entire
agreement and understanding between the Holder and the Guarantor and supersedes
all prior agreements and understandings relating to the subject matter hereof.
If this Guaranty by the Guarantor is held or determined to be void,
invalid or unenforceable, in whole or in part, such holding or determination
shall not impair or affect the validity and enforceability of any clause or
provision not so held to be void, invalid or unenforceable. If this
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Guaranty as to the Guarantor would be held or determined by a court or tribunal
having competent jurisdiction to be void, invalid or unenforceable on account of
the amount of its aggregate liability under this Guaranty, then, notwithstanding
any other provision of this Guaranty to the contrary, the aggregate amount of
the liability of the Guarantor under this Guaranty shall, without any further
action by the Guarantor, the Holder or any other person, be automatically
limited and reduced to an amount which is valid and enforceable.
The Guarantor (a) hereby irrevocably submits to the jurisdiction of the
state courts of the State of Ohio and to the jurisdiction of the United States
District Court for the Northern District of Ohio, for the purpose of any suit,
action or other proceeding arising out of or based upon this Guaranty or the
subject matter hereof brought by the Holder and (b) hereby waives, and agrees
not to assert, by way of motion, as a defense, or otherwise, in any such suit,
action or proceeding, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that its property is exempt or immune
from attachment or execution, that the suit, action or proceeding is brought in
an inconvenient forum, that the venue of the suit, action or proceeding is
improper or that this Guaranty or the subject matter hereof may not be enforced
in or by such court and (c) hereby waives and agrees not to seek any review by
any court of any other jurisdiction which may be called upon to grant an
enforcement of the judgment of any such Ohio state or federal court. The
Guarantor agrees that its submission to jurisdiction and its consent to service
of process by mail is made for the express benefit of the Holder. Final judgment
against the Guarantor in any such action, suit or proceeding may be enforced in
other jurisdictions (a) by suit, action or proceeding on the judgment, or (b) in
any other manner provided by or pursuant to the laws of such other jurisdiction;
PROVIDED, HOWEVER, that the Holder may at his option bring suit, or institute
other judicial proceedings, against the Guarantor in any state or federal court
of the United States or of any country or place where the Guarantor or its
property may be found.
Without limiting the effect or intentions of the warrant of attorney
contained in the following paragraph, THE GUARANTOR AND, BY HIS ACCEPTANCE OF
THIS GUARANTY, THE HOLDER HEREBY IRREVOCABLY AGREE TO WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THE NOTE, OR THIS GUARANTY OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THE NOTE OR THIS GUARANTY AND THE RELATIONSHIPS THEREBY
ESTABLISHED. The scope of this waiver is intended to be all-encompassing of any
and all disputes that may be filed in any court and that relate to the subject
matter of this transaction, including, without limitation, contract claims, tort
claims, breach of duty claims, and all other statutory and common law claims.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS OF THIS GUARANTY. In the event of litigation, this provision may
be filed as a written consent to a trial by the court.
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The Guarantor authorizes any attorney at law to appear in any Court of
Record in the State of Ohio or in any other state or territory of the United
States of America after the above indebtedness becomes due, whether by
acceleration or otherwise, to waive the issuance and service of process, and to
confess judgment or judgments against the Guarantor in favor of the Holder for
the amount then appearing due together with costs of suit, and thereupon to
waive all errors and all rights of appeal and stays of execution. The foregoing
warrant of attorney shall survive any such judgment and should any such judgment
be vacated for any reason, and the foregoing warrant of attorney nevertheless
may thereafter be utilized for obtaining judgment or judgments.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed as fully written above as of this 31st day of January, 1999.
WARNING -- BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
RRF LIMITED PARTNERSHIP
By: INNSUITES HOSPITALITY TRUST
Its Sole General Partner
By: /s/ Marc E. Berg
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Marc E. Berg
Executive Vice President and
Secretary