EXHIBIT 10.50
GUARANTY OF PAYMENT
New York, New York
November 20, 1996
WHEREAS, ▇▇▇▇▇▇▇ Financial, LLC, a Delaware limited liability company
having an office at Six Sylvan Way, Parsippany, New Jersey 07054 (the
"BORROWER"), has applied to the lenders described in Exhibit A annexed hereto
(collectively, the "LENDERS"), for a loan in the aggregate principal sum of
$60,000,000.00 (the "LOAN"), which Loan will be evidenced by a Note, (the
"NOTE") in said amount, dated the date hereof, advanced pursuant to a Credit
Agreement (the "CREDIT AGREEMENT") dated the date hereof among the Borrower,
the Lenders, The Chase Manhattan Bank (the "AGENT") in its capacity as
Administrative Agent and Collateral Agent, and certain other parties, and
secured by the collateral and other Loan Documents (collectively, the
"COLLATERAL DOCUMENTS") described in the Credit Agreement;
WHEREAS the Lenders are willing to make advances of the Loan to the
Borrower only if the undersigned executes and delivers this Guaranty and
guarantees payment of the Debt (as herein defined) to the Agent, on behalf of
the Lenders, in the manner hereinafter provided;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, and in order to induce the Lenders to make advances of the Loan
to the Borrower, the undersigned hereby acknowledges, agrees and confirms that
all of the above recitals are true, correct and complete and hereby covenants
and agrees with the Lenders and the Agent as follows:
1. The undersigned guarantees, absolutely, irrevocably and
unconditionally, to the Agent, on behalf of the Lenders, the payment of the
Debt, notwithstanding that advances of the Loan have been, or may be, made in
the face of a default under the Loan Documents (hereinbelow defined) or
otherwise not in compliance with the lending criteria set forth in the Credit
Agreement, provided, however, that so long as an Event of Bankruptcy set forth
in paragraph 3 hereof shall not have occurred and be continuing, the
undersigned's maximum liability hereunder shall not exceed the Designated
Portion of the Debt (as such term is defined in PARAGRAPH 2 of this Guaranty).
The term "DEBT" as used in this Guaranty shall mean all principal, interest,
additional interest (including specifically all interest accruing from and
after the commencement of any case, proceeding or action under any existing or
future laws relating to bankruptcy, insolvency or similar matters with respect
to the Borrower ("POST-PETITION INTEREST")) and other sums of any nature
whatsoever which may or shall become due and payable pursuant to the
provisions of the Credit Agreement, the Collateral Documents or any other
document or instrument now or hereafter executed and/or delivered
in connection therewith or otherwise with respect to the Loan (said Note,
Credit Agreement, Collateral Documents, and other documents and instruments,
collectively, the "LOAN DOCUMENTS") (all of the above unaffected by
modification thereof in any bankruptcy or insolvency proceeding), and even
though the Lenders (or the Agent on their behalf) may not have an allowed
claim for the same against the Borrower as a result of any bankruptcy or
insolvency proceeding. The undersigned and each Lender understands, agrees and
confirms that (i) at any time when there is any default or failure to pay when
due any Debt guaranteed hereunder, the Lenders may enforce this Guaranty
(subject to the limits on the aggregate liability of the undersigned
hereunder, as provided herein) against the undersigned only after a written
demand for payment has been made on the Borrower and a copy thereof delivered
to the undersigned, and such demand has not been paid in full (and any Debt so
guaranteed has not been paid in full) within ten (10) days after the date such
demand for payment was made; provided that no such demand need be made (and
the Debt so guaranteed by the undersigned shall immediately be paid by the
undersigned, subject to the limits on aggregate liability of the undersigned
hereunder, as provided herein) at any time when (x) an Event of Default exists
with respect to the Borrower pursuant to Article VIII, items (g) or (h) of the
Credit Agreement, (y) if any of the events listed in PARAGRAPH 11 of this
Guaranty exist with respect to the undersigned, or (z) the Loan has been
accelerated pursuant to Article VIII of the Credit Agreement.
2. The term "DESIGNATED PORTION OF THE DEBT" as used in this Guaranty
shall mean the aggregate of (A)(i) a portion of the aggregate outstanding
principal balance of the Loan equal to the Applicable Principal Liability (as
hereinafter defined) whenever the aggregate outstanding principal balance of
the Loan is in excess of the Applicable Principal Liability, or (ii) the
entire aggregate outstanding principal balance of the Loan whenever the
aggregate outstanding principal balance of the Loan is equal to or less than
the Applicable Principal Liability, (B) all interest and additional interest
(including specifically Post-Petition Interest) accrued and unpaid on the
portion of the outstanding principal balance of the Loan from time to time
constituting the Designated Portion of the Debt, as determined on a pro rata
basis (i.e., aggregate accrued and unpaid interest on the entire outstanding
principal balance of the Loan from time to time multiplied by a fraction, the
numerator of which shall be the portion of the outstanding principal balance
of the Loan from time to time constituting part of the Designated Portion of
the Debt, and the denominator of which shall be the entire outstanding
principal balance of the Loan from time to time), and (C) all other sums of
any nature whatsoever other than principal or interest from time to time
constituting part of the Debt, all of the above unaffected by modification
thereof in any bankruptcy or insolvency proceeding or by any determination, of
whatever nature, that the Lenders (or the Agent on their behalf) may not have
an allowed claim for the same against the Borrower as a result of any
bankruptcy or insolvency proceeding. The "APPLICABLE PRINCIPAL LIABILITY" with
respect to the Loan shall be equal to $36,000,000.00, less each of (a) any
amounts paid by the Borrower in reduction of the principal balance of the Loan
pursuant to Section 2.08(b) of the Credit Agreement, provided that (x) such
payments are made pursuant to a properly exercised option contained in clause
(ii) of Section 5.04(a) of the Credit Agreement, and (y) all of the conditions
set forth in Section 5.04(e) of the Credit Agreement have been satisfied with
respect to the exercise of said option, (b) the aggregate amount of cash
actually loaned
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by the undersigned to the Borrower after the Closing Date pursuant to Section
7.01(b) of the Credit Agreement so long as all such cash proceeds were
actually used to repay the Loan pursuant to the requirements of Sections
2.08(c) or (d) of the Credit Agreement, (c) the aggregate amount of cash
actually invested by the undersigned in the Borrower after the Closing Date
pursuant to Section 7.07 of the Credit Agreement so long as all such cash
proceeds were actually used to repay the Loan pursuant to the requirements of
Sections 2.08(c) or (d) of the Credit Agreement, and (d) amounts paid under
this Guaranty by the undersigned to the Agent to the extent the same are
applied by the Agent to the principal balance of the Loan. In the event that
on the first anniversary of the date hereof, the aggregate principal amount of
Approved Franchisee Loans (as such term is defined in the Credit Agreement),
approved in writing by the Agent, whether or not funded, is less than
$60,000,000.00, then the Applicable Principal Liability shall be reduced to an
amount equal to 60% of the aggregate principal amount of Approved Franchisee
Loans approved by the Agent, whether or not funded, less the amounts (if any)
referred to in clauses (a) through (d) of this PARAGRAPH 2.
3. The term "EVENT OF BANKRUPTCY" as used in this Guaranty shall mean
any one or more of the following:
(a) if the Borrower shall make an assignment for the benefit of
creditors;
(b) the filing of, or joinder in, a petition by any affiliate of the
Borrower seeking relief against the Borrower under Title 11 of the United
States Code; or
(c) if the Borrower files a petition or answer or consent seeking
relief under Title 11 of the United States Code as now constituted or
hereafter amended, or under any other applicable Federal or state bankruptcy
law or other similar law, or if the Borrower, consents to the institution of
proceedings thereunder or to the filing of any such petition or to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Borrower, or
of any substantial part of its properties, or if the Borrower intentionally
fails generally to pay its debts as such debts become due in circumstances
where Borrower has sufficient funds to make such payments, or if the Borrower,
takes any action in furtherance of any action described in this subparagraph.
4. To the extent that at any applicable time the Designated Portion
of the Debt is less than the Debt, the undersigned agrees that no portion of
any sums applied, from time to time, in reduction of the Debt (other than sums
referred to in clauses (a) through (d) of PARAGRAPH 2 of this Guaranty) shall
be deemed to have been applied in reduction of the Designated Portion of the
Debt until such time as that portion of the Debt which is not the Designated
Portion of the Debt has been paid in full, it being the intention hereof that
the Designated Portion of the Debt shall be the last portion of the Debt to be
paid and that this Guaranty shall remain in full force and effect and shall
not be deemed discharged until the date upon which all of the obligations and
liabilities of the undersigned under this Guaranty shall have been performed
and discharged by the undersigned in accordance with the provisions of this
Guaranty.
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5. The undersigned hereby represents and warrants that it is not an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended.
6. The undersigned hereby represents and warrants that all financial
statements of the undersigned heretofore delivered to the Lenders or the Agent
by or on behalf of the undersigned fairly present the financial condition of
the undersigned as of the respective dates thereof, and no material adverse
change has occurred in the financial conditions reflected therein since the
respective dates thereof. In addition, the undersigned covenants that so long
as any portion of the Debt remains outstanding and unpaid, the undersigned
will, unless otherwise consented to in writing by the Agent:
(a) furnish to the Agent, as soon as available, but in any
event within one hundred twenty (120) days next following the end of each
fiscal year of the undersigned, an audited balance sheet for such fiscal year,
and the related statements of income, shareholders equity, and cash flow for
such fiscal year, prepared in accordance with generally accepted accounting
principles and reviewed by Deloitte & Touche or such other independent
certified public accountant of recognized standing selected by the undersigned
and acceptable to the Agent, such statement to be accompanied by a certificate
signed by the chief financial officer or a vice president responsible for
financial administration of the undersigned certifying on the date thereof
that: (i) such financial statement fairly presents the financial condition of
the undersigned as of the date indicated and (ii) either that no default nor
event which upon notice or lapse of time or both would constitute a default
has occurred hereunder or, if such default exists, the nature thereof and the
period of time it has existed (a "CERTIFICATION");
(b) furnish to the Agent, within ten (10) days after
request, such further detailed financial and other information (including, but
not limited to, financial statements) as may be requested by the Agent with
respect to the undersigned, or any affiliate of, or entity controlled by the
undersigned, as of a date not earlier than that specified by the Agent in such
request, together with a Certification with respect thereto; and
(c) observe and perform, subject to the grace periods
provided therein, all of its obligations under each of the two credit
agreements (collectively, the "HFS CREDIT AGREEMENT") dated as of October, 2,
1996 between the undersigned and The Chase Manhattan Bank, as agent, as the
same may from time to time, have been, and may, from time to time, hereafter
be, modified, supplemented, renewed, replaced or refinanced, provided that in
the event The Chase Manhattan Bank or its successor(s) is no longer party to a
bank credit agreement with the undersigned, or if a bank credit agreement is
no longer utilized by the undersigned, the reference in this PARAGRAPH 6(C) to
the obligations of the undersigned under the HFS Credit Agreement shall be
deemed to mean obligations of the undersigned contained in the last HFS Credit
Agreement to which The Chase Manhattan Bank (or its successor(s)) was a party.
7. The Lenders, or the Agent on their behalf, in addition to any
right available to it under applicable law or any other agreement, shall have
the right, at their option, subject
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to the last sentence of PARAGRAPH 1 of this Guaranty, to set off against any
Liabilities (as hereinafter defined) all monies owed by the Lenders in any
capacity to the undersigned, whether or not due, and the Lenders shall, at
their option, be deemed to have exercised such right to set off and to have
made a charge against any such money immediately upon the occurrence of any
events of default set forth below, even though such charge is made or entered
on the books of the Lenders subsequent to those events. As used in this
Guaranty, the term "LIABILITIES" shall mean the payment of the Designated
Portion of the Debt and all other obligations of the undersigned under this
Guaranty, including fees, contracted with or acquired by the Lenders, whether
joint, several, absolute, contingent, secured, matured or unmatured.
8. All moneys available to the Agent on behalf of the Lenders for
application in payment or reduction of the Debt may be applied by the Agent in
such manner and in such amounts and at such time or times and in such order,
priority and proportions as the Agent may see fit to the payment or reduction
of such portion of the Debt as the Agent may elect.
9. The undersigned hereby expressly agrees that this Guaranty is
independent of, and in addition to, all collateral granted, pledged or
assigned under the Loan Documents, and the undersigned hereby consents that
from time to time, before or after any default by the Borrower, with or
without further notice to or assent from the undersigned:
(a) any security at any time held by or available to the
Lenders, or the Agent on their behalf, for any obligation of the Borrower, or
any security at any time held by or available to the Lenders, or the Agent on
their behalf, for any obligation of any other person or party primarily,
secondarily or otherwise liable for all or any portion of the Debt, any other
Liabilities and/or any other obligations of the Borrower or any other person
or party, other than the Lenders (or the Agent on their behalf), under any of
the Loan Documents ("OTHER OBLIGATIONS"), including any guarantor of the Debt
and/or of any of such Other Obligations, may be accelerated, settled,
exchanged, surrendered or released and the Lenders, or the Agent on their
behalf, may fail to set off and may release, in whole or in part, any balance
of any deposit account or credit on its books in favor of the Borrower, or of
any such other person or party;
(b) any obligation of the Borrower, or of any such other
person or party, may be changed, altered, renewed, extended, continued,
accelerated, surrendered, compromised, settled, waived or released in whole or
in part, or any default with respect thereto waived; and
(c) the Lenders, or the Agent on their behalf may extend
further credit in any manner whatsoever to the Borrower, and generally deal
with the Borrower or any of the abovementioned security, deposit account,
credit on its books or other person or party as the Lenders or the Agent may
see fit;
and the undersigned shall remain bound in all respects under this Guaranty,
without any loss of any rights by the Lenders, or the Agent on their behalf,
and without affecting the liability
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of the undersigned, notwithstanding any such exchange, surrender, release,
change, alteration, renewal, extension, continuance, compromise, waiver,
inaction, extension of further credit or other dealing. In addition, all
moneys available to the Lenders, or the Agent on their behalf, for application
in payment or reduction of the Debt and/or any Other Obligations may be
applied by the Agent in such manner and in such amounts and at such time or
times and in such order, priority and proportions as the Agent may see fit.
10. The undersigned hereby waives:
(a) notice of acceptance of this Guaranty and of the making
of the Loan or any advance thereof by the Lenders to the Borrower;
(b) except as set forth in the last sentence of PARAGRAPH 1
of this Guaranty, presentment and demand for payment of the Debt or any
portion thereof;
(c) protest and notice of dishonor or default to the
undersigned or to any other person or party with respect to the Debt or any
portion thereof; and
(d) except as set forth in the last sentence of PARAGRAPH 1
of this Guaranty, all other notices to which the undersigned might otherwise
be entitled.
11. If any of the following events should occur:
(a) default under any of the Loan Documents and its
continuance beyond any applicable notice and/or grace periods therein
contained;
(b) the undersigned violates any provision of this Guaranty;
(c) the undersigned commences any case, proceeding or other
action under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, or seeks to have an order for relief entered with respect to it, or
seeks to be adjudicated a bankrupt or insolvent, or seeks reorganization,
arrangement, adjustment, liquidation, dissolution, composition or other relief
with respect to it or its debts, or seeks the appointment of a receiver,
trustee, custodian or other similar official for it or for all or
substantially all of its property;
(d) the undersigned makes a general assignment for the
benefit of creditors;
(e) there is commenced against the undersigned, any case,
proceeding or other action of a nature referred to in subparagraph (c) above
or seeking the issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its property, which
case, proceeding or other action results in the entry of an order for relief
or remains undismissed, undischarged or unbonded for a period of 60 days;
(f) the undersigned takes any action indicating its consent
to, approval of,
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or acquiescence in, or in furtherance of, any of the acts set forth in
subparagraphs (c) and (e) above;
(g) the undersigned admits in writing its inability to pay
its debts as they mature; or
(h) the undersigned terminates or dissolves or suspends its
usual business activities or conveys, sells, leases, transfers or otherwise
disposes of all or substantially all of its property, business or assets other
than in the ordinary course of business;
then, and in such event, the Lenders, or the Agent on their behalf, may
declare the Liabilities to be, and the same shall become, immediately due and
payable.
12. This is a guaranty of payment and not of collection and the
undersigned further waives any right to require that any action be brought
against the Borrower or any other person or party or to require that resort be
had to any security or to any balance of any deposit account or credit on the
books of the Lenders, or any of them, or the Agent in favor of the Borrower or
any other person or party. Any payment on account of or reacknowledgment of
the Debt by the Borrower, or any other party liable therefor, shall be deemed
to be made on behalf of the undersigned and shall serve to start anew the
statutory period of limitations applicable to the Debt.
13. Each reference herein to the Lenders and the Agent shall be
deemed to include their respective successors and assigns, in whose favor the
provisions of this Guaranty shall also inure. Each reference herein to the
undersigned shall be deemed to include the successors and assigns of the
undersigned, all of whom shall be bound by the provisions of this Guaranty,
provided, however, that the undersigned shall in no event nor under any
circumstance have the right, without obtaining the prior written consent of
the Agent, to assign or transfer the undersigned's obligations and liabilities
under this Guaranty, in whole or in part, to any other person, party or
entity.
14. If any party hereto shall be a corporation, the agreements and
obligations on the part of the undersigned herein contained shall remain in
force and application notwithstanding the merger, consolidation,
reorganization or absorption thereof, and the term "undersigned" shall include
such new entity, but the old entity shall not thereby be released from any
obligations or liabilities hereunder.
15. No delay on the part of the Lenders, or the Agent on their
behalf, in exercising any right or remedy under this Guaranty or failure to
exercise the same shall operate as a waiver in whole or in part of any such
right or remedy. No notice to or demand on the undersigned shall be deemed to
be a waiver of the obligations of the undersigned or of the right of the Agent
or the Lenders to take further action without notice or demand as provided in
this Guaranty. No course of dealing between the undersigned and the Agent or
the Lender shall change, modify or discharge, in whole or in part, this
Guaranty or any obligations of the undersigned hereunder.
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16. This Guaranty may only be modified, amended, changed or
terminated by an agreement in writing signed by the Agent, on behalf of the
Lenders, and the undersigned. No waiver of any term, covenant or provision of
this Guaranty shall be effective unless given in writing by the Agent (on
behalf of the Lenders) and if so given by the Agent shall only be effective in
the specific instance in which given. The execution and delivery hereafter to
the Agent, on behalf of the Lenders, by the undersigned of a new instrument of
guaranty or any reaffirmation of guaranty, of whatever nature, shall not
terminate, supersede or cancel this instrument, unless expressly so provided
therein, and all rights and remedies of the Agent and the Lenders hereunder or
under any instrument of guaranty hereafter executed and delivered to the Agent
by the undersigned shall be cumulative and may be exercised singly or
concurrently.
17. The undersigned acknowledges that this Guaranty and the
undersigned's obligations under this Guaranty are and shall at all times
continue to be absolute, irrevocable and unconditional in all respects, and
shall at all times be valid and enforceable irrespective of any other
agreements or circumstances of any nature whatsoever which might otherwise
constitute a defense to this Guaranty and the obligations of the undersigned
under this Guaranty or the obligations of any other person or party
(including, without limitation, the Borrower) relating to this Guaranty or the
obligations of the undersigned hereunder or otherwise with respect to the
Debt, including, but not limited to, the realization upon any collateral
given, pledged or assigned as security for all or any portion of the Debt, or
the filing of a petition under Title 11 of the United States Code with regard
to the Borrower or the undersigned, or the commencement of an action or
proceeding for the benefit of the creditors of the Borrower or the
undersigned, or the obtaining by the Agent, on behalf of the Lenders, of title
to any collateral given, pledged or assigned as security for the Debt by
reason of the foreclosure or enforcement of any Collateral Documents, the
acceptance of a deed or assignment in lieu of foreclosure or sale, or
otherwise. This Guaranty sets forth the entire agreement and understanding of
the Agent, on behalf of the Lenders, and the undersigned with respect to the
matters covered by this Guaranty and the undersigned acknowledges that no oral
or other agreements, understandings, representations or warranties exist with
respect to this Guaranty or with respect to the obligations of the undersigned
under this Guaranty, except those specifically set forth in this Guaranty.
18. This Guaranty has been validly authorized, executed and delivered
by the undersigned. The undersigned represents and warrants to the Agent and
the Lenders that it has the corporate power to do so and to perform its
obligations under this Guaranty and this Guaranty constitutes the legally
binding obligation of the undersigned fully enforceable against the
undersigned in accordance with the terms hereof, except that enforcement may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in equity or
at law). The undersigned further represents and warrants to the Agent and the
Lenders that:
(a) neither the execution and delivery of this Guaranty nor
the consummation of the transactions contemplated hereby nor compliance with
the terms and
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provisions hereof will violate any applicable provision of law or any
applicable regulation or other manifestation of governmental action; and
(b) all necessary approvals, consents, licenses,
registrations and validations of any governmental regulatory body, including,
without limitation, approvals required to permit the undersigned to execute
and carry out the provisions of this Guaranty, for the validity of the
obligations of the undersigned hereunder and for the making of any payment or
remittance of any funds required to be made by the undersigned under this
Guaranty, have been obtained and are in full force and effect.
19. The undersigned hereby agrees with the Agent and the Lenders that
it will not exercise any rights of subrogation (whether contractual, under
Section 509 of the Title 11 of the United States Code, or otherwise) which may
at any time otherwise have either as a result of payments made by it under
this Guaranty or otherwise, until all obligations of the undersigned under
this Guaranty (for purposes of this PARAGRAPH 19, determined without regard to
any limitations on the aggregate amount guaranteed) have been paid in full in
cash. In the event either a petition is filed under said Title 11 of the
United States Code with regard to the Borrower or the commencement of an
action or proceeding for the benefit of the creditors of the Borrower, this
Guaranty shall at all times thereafter remain effective in regard to any
payments or other transfers of assets to the Agent, on behalf of the Lenders,
received from or on behalf of the Borrower prior to notice of termination of
this Guaranty and which are or may be held voidable on the grounds of
preference or fraud, whether or not the Debt has been paid in full. The
provisions of this PARAGRAPH 19 shall survive the term of this Guaranty and
the payment in full of the Debt and all other Liabilities and the termination
of any commitment to make any further advances of proceeds of the Loan
pursuant to the Credit Agreement.
20. Any notice, request or demand given or made under this Guaranty
shall be in writing and shall be hand delivered or sent by Federal Express or
other reputable courier service or by postage prepaid registered or certified
mail, return receipt requested, and shall be deemed given (a) when received at
the following addresses if hand delivered or if sent by Federal Express or
other reputable courier service, and (b) three (3) business days after being
postmarked and addressed as follows if sent by registered or certified mail,
return receipt requested:
IF TO THE AGENT OR THE LENDERS:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Portfolio Management Officer
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WITH A COPY TO:
The Chase Manhattan Bank
Legal Department
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
and with a copy to:
▇▇▇▇▇▇▇▇ & Colin LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Att: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
IF TO THE UNDERSIGNED:
Six Sylvan Way
Parsippany, New Jersey 07054
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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WITH A COPY TO:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
it being understood and agreed that each party will use reasonable efforts to
send copies of any notices to the addresses marked "WITH A COPY TO"
hereinabove set forth; provided, however, that failure to deliver such copy or
copies shall have no consequence whatsoever to the effectiveness of any notice
made to the undersigned, the Agent, or the Lenders. Each party to this
Guaranty may designate a change of address by notice given, as herein
provided, to the other party fifteen (15) days prior to the date such change
of address is to become effective.
21. This Guaranty is, and shall be deemed to be, a contract entered
into under and pursuant to the laws of the State of New York and shall be in
all respects governed, construed, applied and enforced in accordance with the
laws of the State of New York without regard to principles of conflicts of
laws. The undersigned acknowledges and agrees that this Guaranty is, and is
intended to be, an instrument for the payment of money only, as such phrase is
used in ss.3213 of the Civil Practice Law and Rules of the State of New York,
and the undersigned has been fully advised by its counsel of the rights and
remedies of the Agent (on behalf of the Lenders) pursuant to said ss.3213.
22. The undersigned agrees to submit to personal jurisdiction in the
State of New York in any action or proceeding arising out of this Guaranty. In
furtherance of such agreement, the undersigned hereby agrees and consents that
without limiting other methods of obtaining jurisdiction, personal
jurisdiction over the undersigned in any such action or proceeding may be
obtained within or without the jurisdiction of any court located in New York
and that any process or notice of motion or other application to any such
court in connection with any such action or proceeding may be served upon the
undersigned by registered or certified mail to, or by personal service at, the
last known address of the undersigned, whether such address be within or
without the jurisdiction of any such court. The undersigned hereby further
agrees that the venue of any litigation arising in connection with the Debt or
in respect of any of the obligations of the undersigned under this Guaranty,
shall, to the extent permitted by law, be in New York County.
23. The undersigned absolutely, unconditionally and irrevocably
waives any and all right to assert or interpose any defense (other than the
final and indefeasible payment in full of the Debt), setoff, counterclaim or
crossclaim of any nature whatsoever with respect to this Guaranty or the
obligations of the undersigned under this Guaranty, or the obligations of any
other person or party (including without limitation, the Borrower) relating to
this Guaranty, or the obligations of the undersigned hereunder or otherwise
with respect to the
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Loan in any action or proceeding brought by the Lenders, or the Agent on their
behalf, to collect the Debt, or any portion thereof, or to enforce the
obligations of the undersigned under this Guaranty (provided, however, that
the foregoing shall not be deemed a waiver of the right of the undersigned to
assert any compulsory counterclaim maintained in a court of the United States,
or of the State of New York if such counterclaim is compelled under local law
or rule of procedure, nor shall the foregoing be deemed a waiver of the right
of the undersigned to assert any claim which would constitute a defense,
setoff, counterclaim or crossclaim of any nature whatsoever against the
Lenders or the Agent in any separate action or proceeding). The undersigned
hereby undertakes and agrees that this Guaranty shall remain in full force and
effect for all of the obligations and liabilities of the undersigned
hereunder, notwithstanding the maturity of the Loan, whether by acceleration,
scheduled maturity or otherwise.
24. The obligations and liabilities of the undersigned under this
Guaranty are in addition to the obligations and liabilities of the undersigned
under the Other Guaranties (as hereinafter defined). The discharge of any or
all of the undersigned's obligations and liabilities under any one or more of
the Other Guaranties by the undersigned or by reason of operation of law or
otherwise shall in no event or under any circumstance constitute or be deemed
to constitute a discharge, in whole or in part, of the undersigned's
obligations and liabilities under this Guaranty. Conversely, the discharge of
any or all of the undersigned's obligations and liabilities under this
Guaranty by the undersigned or by reason of operation of law or otherwise
shall in no event or under any circumstance constitute or be deemed to
constitute a discharge, in whole or in part, of the undersigned's obligations
and liabilities under any of the Other Guaranties. The term "OTHER GUARANTIES"
as used herein shall mean any other guaranty of payment, guaranty of
performance, completion guaranty, indemnification agreement or other guaranty
or instrument creating any obligation or undertaking of any nature whatsoever
(other than this Guaranty) now or hereafter executed and delivered by the
undersigned to the Lenders, or the Agent on their behalf, in connection with
the Loan.
25. This Guaranty may be executed in one or more counterparts by some
or all of the parties hereto, each of which counterparts shall be an original
and all of which together shall constitute a single agreement of guaranty.
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26. THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
AND THE AGENT (ON BEHALF OF THE LENDERS) BY ITS ACCEPTANCE OF THIS GUARANTY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR
OTHERWISE RELATING TO THIS GUARANTY.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Guaranty the day and year first above set forth.
HFS INCORPORATED
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President -
Legal
THE CHASE MANHATTAN BANK, AS AGENT
for purposes of the last sentence
of paragraph 1
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
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