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This excerpt taken from the GTY 8-K filed Oct 1, 2009. "control" shall mean the
possession of the power to direct or cause the direction of the management and
policies of such corporation or other entity whether through the ownership of
voting securities, by contract or otherwise.
6.Guarantor warrants and represents that it is
the sole owner of a majority of the membership interests, capital stock and/or
equity interests of Lessee. The obligations of the Guarantor under
this Guaranty may not be assigned by Guarantor, unless such assignment has been
approved by Lessor in accordance with the terms and conditions of the
Lease.
7.All of Lessor's rights and remedies under the
Lease and/or under this Guaranty are intended to be distinct, separate and
cumulative and no such right or remedy therein or herein mentioned, whether
exercised by Lessor or not, is intended to be in exclusion or a waiver of any of
the others. This Guaranty cannot be modified, waived or terminated
unless such modification, waiver or termination is in writing, signed by
Lessor.
8.Neither the obligations nor the liabilities of
Guarantor hereunder shall be released, reduced, diminished, offset or otherwise
affected by the existence of, or Lessor's receipt, application, use, retention
or release of, any security given for the performance, observance and compliance
with any of the terms, covenants, conditions or other obligations required to be
performed, observed or complied with by Lessee under the Lease, and for the
purposes of Guarantor's obligations and liabilities under this Guaranty, Lessor
shall be deemed not to be holding any security under the Lease and not to have
applied, used or retained any security deposit. No failure or delay
on the part of Lessor in exercising any right, power or privilege under this
Guaranty shall operate as a waiver of or otherwise affect any such right, power
or privilege, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
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9.No payment by Guarantor pursuant to any
provision hereof shall entitle Guarantor, by subrogation or otherwise, to the
rights of Lessor to any payment by Lessee or out of the property of Lessee, and
Guarantor hereby waives such subrogation, except after payment in full of all
sums owing by Lessee to Lessor under the Lease.
10.(a)This Guaranty is being delivered in the State
of Maryland, and the respective rights and obligations of Lessor and as a
further material inducement to Lessor to make and enter into the Lease, the
Guarantor hereunder shall be governed by and construed and enforced in
accordance with the internal substantive laws of the State of Ohio, applicable
to contracts made and to be performed entirely within said State, without
reference to choice or conflict of laws, principles or provisions which might be
otherwise applicable, except as otherwise required in respect of the validity
and legality of the execution and delivery of this Guaranty by the laws of the
jurisdiction of incorporation of Guarantor. Guarantor consents to
service of process by Lessor in any action, suit or other proceeding in any
court of record of the State of Maryland or a United States District Court
located in the State of Maryland to enforce any or all liabilities of the
Guarantor hereunder, by service of any summons, complaint, writ, judgment or
other legal process or notice upon the Guarantor upon Pillsbury Winthrop Shaw
Pittman LLP, 2300 N Street, NW, Washington, D.C. 20037 who is hereby
irrevocably designated, appointed and empowered by the Guarantor as their agent
to receive and accept on its behalf service of summons, complaint or such other
process in any action or legal proceeding. Guarantor (i) agrees that
such service shall be deemed in every respect effective service of process upon
Guarantor in any such suit, action or proceeding, (ii) agrees that such service
shall, to the fullest extent permitted by law, be taken and held to be valid
personal service upon and personal delivery to Guarantor, and (iii) waives the
benefits of any other service of process regulations, laws or conventions to the
fullest extent that it is legally able to do
so.
(b)Guarantor hereby irrevocably submits and
consents to the jurisdiction of any court of record of the State of Maryland or
a United States District Court located in the State of Maryland over the person
of the Guarantor and the Guarantor hereby waives any claim that any such court
is an inconvenient forum and any objection to the laying of venue in any such
court. The Guarantor hereby represents and warrants that the
Guarantor is not entitled to claim sovereign or diplomatic immunity as to its
person or assets and hereby waives and expressly disclaims any such
immunities. In any action, suit or proceeding arising out of or in
connection with this Guaranty, the prevailing party shall be entitled to all
reasonable attorneys' fees and other out-of-pocket costs incurred in such
action, suit or proceeding including, without limitation, reasonable attorneys'
fees and disbursements together with all attorneys’ fees and other out-of-pocket
costs. Guarantor hereby waives trial by
jury.
(c)The foregoing notwithstanding, Guarantor agrees
that nothing in this Guaranty shall affect or limit service of process in any
manner permitted by law, or limit any right to bring proceedings against
Guarantor in the courts of any jurisdiction or to enforce in any lawful manner a
judgment obtained in one jurisdiction in any other jurisdiction.
13.Guarantor represents and warrants to Lessor as
follows:
(a)Guarantor is not in material default under the
terms, covenants or conditions of any agreement to which it is a party or by
which it is bound, such as would materially and adversely affect Guarantor’s
ability to carry out the terms, covenants and conditions of this
Guaranty.
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(b)Guarantor has the full power, authority and
legal right to execute and deliver, and to perform and observe the provisions
of, this Guaranty, including the payment of all moneys hereunder, and any and
all financial information (oral or written) which Guarantor has supplied, or
caused to be supplied, to Lessor is complete, true and accurate as of the date
supplied. This Guaranty constitutes the legal, valid and binding
obligation of Guarantor and is enforceable in accordance with its terms.
(c)Guarantor is not in violation of any decree,
ruling, judgment, order or injunction applicable to it, or any law, ordinance,
rule or regulation of whatever nature which taken alone or in the aggregate,
would materially and adversely affect Guarantor’s ability to carry out any of
the terms, covenants and conditions of this Guaranty. There are no
actions, proceedings or investigations pending or to the actual knowledge of
Guarantor, threatened in writing against or affecting Guarantor (or any basis
therefor known to Guarantor) before or by any court, arbitrator, administrative
agency or other governmental authority or entity, which, taken alone or in the
aggregate, if adversely decided, would materially and adversely affect its
ability to carry out any of the terms, covenants and conditions of this
Guaranty.
(d)No authorization, approval, consent or
permission (governmental or otherwise) of any court, agency, commission or other
authority or entity is required for the due execution, delivery, performance or
observance by Guarantor of this Guaranty or for the payment of any sums
hereunder. Guarantor agrees that if any such authorization, approval,
consent, filing or permission shall be required in the future in order to permit
or effect performance of the obligations of Guarantor under this Guaranty, such
entity promptly shall inform Lessor or any of its successors or assigns and
shall obtain such authorization, approval, consent, filing or
permission.
(e)Neither the execution or delivery of this
Guaranty, nor the consummation of the transactions herein contemplated, nor the
observance, performance or compliance with the terms, covenants or conditions
hereof, conflict or will conflict with, or result in a breach of, any agreement
or instrument to which Guarantor is a party or by which it is bound, or
constitutes or will constitute a default thereunder.
(f)The financial statements furnished to Lessor
for Guarantor fairly present the respective financial condition of Guarantor as
of such dates in accordance with generally accepted accounting principles,
consistently applied or in accordance with international financial reporting
standards, and since the date of each of such financial statements, there has
been no material adverse change in such condition. For purposes of
this paragraph, the term “material adverse change” shall mean a reduction, by
more than 10%, in Guarantor’s (i) net worth as reflected (or would be reflected)
on the balance sheet of such entity for such prior quarter or prior calendar
year, as the case may be, or (ii) revenues as reflected (or would be reflected)
on the statement of revenue and expenses of such entity for such prior quarter
or prior calendar year, as the case may be.
14.Guarantor agrees that it will, at any
time and from time to time, within ten (10) days after Lessor's request therefor
(but not more often than once each calendar quarter) and, additionally, within
60 days after the end of each calendar year, during the term of the Lease,
execute, acknowledge and deliver to Lessor a statement (the |
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