GENERAL CONTINUING GUARANTY
THIS GENERAL CONTINUING GUARANTY ("Guaranty"), dated as of November 15,
1997, is executed and delivered by Town & Country Corporation, a Massachusetts
corporation ("Guarantor"), in favor of Fleet Precious Metals Inc., a Rhode
Island corporation ("Guarantied Party"), in light of the following:
WHEREAS, Guarantor, Group, GLI, Balfour, and Guarantied Party are,
contemporaneously herewith, entering into that certain Amendment Number One; and
WHEREAS, in order to induce Guarantied Party to extend financial
accommodations to Debtor during the Relevant Period pursuant to the Consignment
Agreement, and in consideration thereof, and in consideration of any
consignments of Precious Metal or other financial accommodations heretofore or
hereafter extended by Guarantied Party to Debtor, whether pursuant to the Loan
Agreement or otherwise, Guarantor has agreed to guaranty the Guarantied
Obligations.
NOW, THEREFORE, in consideration of the foregoing, Guarantor hereby agrees,
in favor of Guarantied Party, as follows:
1. Definitions and Construction.
(a) Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Consignment Agreement.
The following terms, as used in this Guaranty, shall have the following
meanings:
"Amendment Number One" shall mean that certain Amendment Number One to
Second Amended and Restated Consignment Agreement dated as of November 15,
1997, between Guarantied Party, Guarantor, Group, LGI, and Balfour,
including all exhibits thereto.
"Consignment Agreement" shall mean that certain Second Amended and
Restated Consignment Agreement, dated as of July 3, 1996, entered into
between Town & Country Corporation, a Massachusetts corporation, Town &
Country Fine Jewelry Group, Inc., a Massachusetts corporation, GL, Inc., a
Massachusetts corporation, ▇.▇. ▇▇▇▇▇▇▇ Company, Inc., a Delaware
corporation, and Fleet Precious Metals Inc., a Rhode Island corporation, as
from time to time amended, modified, supplemented, renewed, extended, or
restated, including, without limitation, by Amendment Number One.
"Debtor" shall mean Group, GLI, and Balfour, and each of them, jointly
and severally.
"Guarantied Obligations" shall mean any and all Relevant Period
Obligations of Debtor.
"Guarantied Party" shall have the meaning set forth in the preamble to
this Guaranty.
"Guarantor" shall have the meaning set forth in the preamble to this
Guaranty.
"Guaranty" shall have the meaning set forth in the preamble to this
Guaranty.
(b) Construction. Unless the context of this Guaranty clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, the part includes the whole, the terms
"include" and "including" are not limiting, and the term "or" has the inclusive
meaning represented by the phrase "and/or." The words "hereof," "herein,"
"hereby," "hereunder," and other similar terms refer to this Guaranty as a whole
and not to any particular provision of this Guaranty. Any reference in this
Guaranty to any of the following documents includes any and all alterations,
amendments, restatements, extensions, modifications, renewals, or supplements
thereto or thereof, as applicable: the Consignment Agreement; this Guaranty; and
the other Consignment Documents. Neither this Guaranty nor any uncertainty or
ambiguity herein shall be construed or resolved against Guarantied Party or
Guarantor, whether under any rule of construction or otherwise. On the contrary,
this Guaranty has been reviewed by Guarantor, Guarantied Party, and their
respective counsel, and shall be construed and interpreted according to the
ordinary meaning of the words used so as to fairly accomplish the purposes and
intentions of Guarantied Party and Guarantor.
2. Guarantied Obligations. Guarantor hereby irrevocably and unconditionally
guaranties to Guarantied Party, as and for its own debt, until final and
indefeasible payment thereof has been made, (a) the payment of the Guarantied
Obligations, in each case when and as the same shall become due and payable,
whether at maturity, pursuant to a mandatory prepayment requirement, by
acceleration, or otherwise; it being the intent of Guarantor that the guaranty
set forth herein shall be a guaranty of payment and not a guaranty of
collection; and (b) the punctual and faithful performance, keeping, observance,
and fulfillment by Debtor of all of the agreements, conditions, covenants, and
obligations of Debtor contained in the Consignment Agreement, and under each of
the other Consignment Documents.
3. Continuing Guaranty. This Guaranty includes Guarantied Obligations
arising under successive transactions continuing, compromising, extending,
increasing, modifying, releasing, or renewing the Guarantied Obligations,
changing the Daily Consignment consigned Fee, payment terms, or other terms and
conditions thereof, or creating new or additional Guarantied Obligations after
prior Guarantied Obligations have been satisfied in whole or in part. To the
maximum extent permitted by law, Guarantor hereby waives any right to revoke
this Guaranty as to future Guarantied Obligations. If such a revocation is
effective notwithstanding the foregoing waiver, Guarantor acknowledges and
agrees that (a) no such revocation shall be effective until written notice
thereof has been received by Guarantied Party, (b) no such revocation shall
apply to any Guarantied Obligations in existence on such date (including any
subsequent continuation,
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extension, or renewal thereof, or change in the interest rate, payment terms, or
other terms and conditions thereof), (c) no such revocation shall apply to any
Guarantied Obligations made or created after such date to the extent made or
created pursuant to a legally binding commitment of Guarantied Party in
existence on the date of such revocation, (d) no payment by Guarantor, Debtor,
or from any other source, prior to the date of such revocation shall reduce the
maximum obligation of Guarantor hereunder, and (e) any payment by Debtor or from
any source other than Guarantor subsequent to the date of such revocation shall
first be applied to that portion of the Guarantied Obligations as to which the
revocation is effective and which are not, therefore, guarantied hereunder, and
to the extent so applied shall not reduce the maximum obligation of Guarantor
hereunder.
4. Performance Under this Guaranty. In the event that Debtor fails to make
any payment of any Guarantied Obligations, on or before the due date thereof, or
if Debtor shall fail to perform, keep, observe, or fulfill any other obligation
referred to in clause (b) of Section 2 hereof in the manner provided in the
Consignment Agreement or the other Consignment Documents, as applicable,
Guarantor immediately shall cause such payment to be made or each of such
obligations to be performed, kept, observed, or fulfilled.
5. Primary Obligations. This Guaranty is a primary and original obligation
of Guarantor, is not merely the creation of a surety relationship, and is an
absolute, unconditional, and continuing guaranty of payment and performance
which shall remain in full force and effect without respect to future changes in
conditions. Guarantor agrees that it is directly, jointly and severally with any
other guarantor of the Guarantied Obligations, liable to Guarantied Party, that
the obligations of Guarantor hereunder are independent of the obligations of
Debtor or any other guarantor, and that a separate action may be brought against
Guarantor, whether such action is brought against Debtor or any other guarantor
or whether Debtor or any other guarantor is joined in such action. Guarantor
agrees that its liability hereunder shall be immediate and shall not be
contingent upon the exercise or enforcement by Guarantied Party of whatever
remedies it may have against Debtor or any other guarantor, or the enforcement
of any lien or realization upon any security Guarantied Party may at any time
possess. Guarantor agrees that any release which may be given by Guarantied
Party to Debtor or any other guarantor shall not release Guarantor. Guarantor
consents and agrees that Guarantied Party shall be under no obligation to
marshal any property or assets of Debtor or any other guarantor in favor of
Guarantor, or against or in payment of any or all of the Guarantied Obligations.
6. Waivers.
(a) To the fullest extent permitted by applicable law, Guarantor hereby
waives: (i) notice of acceptance hereof; (ii) notice of any consignments of
Precious Metal or other financial accommodations made or extended under the
Consignment Agreement, or the creation or existence of any Guarantied
Obligations; (iii) notice of the amount of the Guarantied Obligations, subject,
however, to Guarantor's right to make inquiry of Guarantied Party to ascertain
the amount of the Guarantied Obligations at any reasonable time; (iv) notice of
any adverse change in the financial condition of Debtor or of any other fact
that might increase Guarantor's risk hereunder; (v) notice of presentment for
payment, demand, protest, and notice thereof as to any instrument among the
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Consignment Documents; (vi) notice of any unmatured Event of Default or Event of
Default under the Consignment Agreement; and (vii) all other notices (except if
such notice is specifically required to be given to Guarantor under this
Guaranty or any other Consignment Documents to which Guarantor is a party) and
demands to which Guarantor might otherwise be entitled.
(b) To the fullest extent permitted by applicable law, Guarantor waives
the right by statute or otherwise to require Guarantied Party to institute suit
against Debtor or to exhaust any rights and remedies which Guarantied Party has
or may have against Debtor. In this regard, Guarantor agrees that it is bound to
the payment of each and all Guarantied Obligations, whether now existing or
hereafter arising, as fully as if such Guarantied Obligations were directly
owing to Guarantied Party by Guarantor. Guarantor further waives any defense
arising by reason of any disability or other defense (other than the defense
that the Guarantied Obligations shall have been fully and finally performed and
indefeasibly paid) of Debtor or by reason of the cessation from any cause
whatsoever of the liability of Debtor in respect thereof.
(c) To the fullest extent permitted by applicable law, Guarantor hereby
waives: (i) any rights to assert against Guarantied Party any defense (legal or
equitable), set-off, counterclaim, or claim which Guarantor may now or at any
time hereafter have against Debtor or any other party liable to Guarantied
Party; (ii) any defense, set-off, counterclaim, or claim, of any kind or nature,
arising directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of the Guarantied Obligations or any
security therefor; (iii) any defense arising by reason of any claim or defense
based upon an election of remedies by Guarantied Party; (iv) the benefit of any
statute of limitations affecting Guarantor's liability hereunder or the
enforcement thereof, and any act which shall defer or delay the operation of any
statute of limitations applicable to the Guarantied Obligations shall similarly
operate to defer or delay the operation of such statute of limitations
applicable to Guarantor's liability hereunder.
(d) Until such time as all of the Guarantied Obligations have been
fully, finally, and indefeasibly paid in full in cash: (i) Guarantor hereby
waives and postpones any right of subrogation Guarantor has or may have as
against Debtor with respect to the Guarantied Obligations; (ii) in addition,
Guarantor hereby waives and postpones any right to proceed against Debtor or any
other Person, now or hereafter, for contribution, indemnity, reimbursement, or
any other suretyship rights and claims (irrespective of whether direct or
indirect, liquidated or contingent), with respect to the Guarantied Obligations;
and (iii) in addition, Guarantor also hereby waives and postpones any right to
proceed or to seek recourse against or with respect to any property or asset of
Debtor.
(e) If any of the Guarantied Obligations at any time are secured by a
mortgage or deed of trust upon real property, Guarantied Party may elect, in its
sole discretion, upon a default with respect to the Guarantied Obligations, to
foreclose such mortgage or deed of trust judicially or nonjudicially in any
manner permitted by law, before or after enforcing this Guaranty, without
diminishing or affecting the liability of Guarantor hereunder.
7. Releases. Guarantor consents and agrees that, without notice to or by
Guarantor and without affecting or impairing the obligations of Guarantor
hereunder, Guarantied Party may, by
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action or inaction, compromise or settle, extend the period of duration or the
time for the payment, or discharge the performance of, or may refuse to, or
otherwise not enforce, or may, by action or inaction, release all or any one or
more parties to, any one or more of the terms and provisions of the Consigned
Agreement or any of the other Consigned Documents or may grant other indulgences
to Debtor in respect thereof, or may amend or modify in any manner and at any
time (or from time to time) any one or more of the Consigned Agreement or any of
the other Consigned Documents, or may, by action or inaction, release or
substitute any other guarantor, if any, of the Guarantied Obligations, or may
enforce, exchange, release, or waive, by action or inaction, any security for
the Guarantied Obligations or any other guaranty of the Guarantied Obligations,
or any portion thereof.
8. No Election. Guarantied Party shall have the right to seek recourse
against Guarantor to the fullest extent provided for herein and no election by
Guarantied Party to proceed in one form of action or proceeding, or against any
party, or on any obligation, shall constitute a waiver of Guarantied Party's
right to proceed in any other form of action or proceeding or against other
parties unless Guarantied Party has expressly waived such right in writing.
Specifically, but without limiting the generality of the foregoing, no action or
proceeding by Guarantied Party under any document or instrument evidencing the
Guarantied Obligations shall serve to diminish the liability of Guarantor under
this Guaranty except to the extent that Guarantied Party finally and
unconditionally shall have realized indefeasible payment by such action or
proceeding.
9. Indefeasible Payment. The Guarantied Obligations shall not be considered
indefeasibly paid for purposes of this Guaranty unless and until all payments to
Guarantied Party are no longer subject to any right on the part of any person
whomsoever, including Debtor, Debtor as a debtor in possession, or any trustee
(whether appointed under the Bankruptcy Code or otherwise) of Debtor's assets to
invalidate or set aside such payments or to seek to recoup the amount of such
payments or any portion thereof, or to declare same to be fraudulent or
preferential. In the event that, for any reason, all or any portion of such
payments to Guarantied Party is set aside or restored, whether voluntarily or
involuntarily, after the making thereof, the obligation or part thereof intended
to be satisfied thereby shall be revived and continued in full force and effect
as if said payment or payments had not been made and Guarantor shall be liable
for the full amount Guarantied Party is required to repay plus any and all costs
and expenses (including attorneys fees) paid by Guarantied Party in connection
therewith.
10. Financial Condition of Debtor. Guarantor represents and warrants to
Guarantied Party that it is currently informed of the financial condition of
Debtor and of all other circumstances which a diligent inquiry would reveal and
which bear upon the risk of nonpayment of the Guarantied Obligations. Guarantor
further represents and warrants to Guarantied Party that it has read and
understands the terms and conditions of the Loan Agreement and the other Loan
Documents. Guarantor hereby covenants that it will continue to keep itself
informed of Debtor's financial condition, the financial condition of other
guarantors, if any, and of all other circumstances which bear upon the risk of
nonpayment or nonperformance of the Guarantied Obligations.
11. Subordination. Guarantor hereby agrees that any and all present and
future indebtedness of Debtor owing to Guarantor is postponed in favor of and
subordinated to payment,
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in full, in cash, of the Guarantied Obligations. In this regard, no payment of
any kind whatsoever shall be made with respect to such indebtedness until the
Guarantied Obligations have been indefeasibly paid in full.
12. Payments; Application. All payments to be made hereunder by Guarantor
shall be made in lawful money of the United States of America at the time of
payment, shall be made in immediately available funds, and shall be made without
deduction (whether for taxes or otherwise) or offset. All payments made by
Guarantor hereunder shall be applied as follows: first, to all reasonable costs
and expenses (including attorneys fees) incurred by Guarantied Party in
enforcing this Guaranty or in collecting the Guarantied Obligations; second, to
all accrued and unpaid interest, premium, if any, and fees owing to Guarantied
Party constituting Guarantied Obligations; and third, to the balance of the
Guarantied Obligations.
13. Attorneys Fees and Costs. Guarantor agrees to pay, on demand, all
reasonable attorneys fees and all other reasonable costs and expenses which may
be incurred by Guarantied Party in the enforcement of this Guaranty or in any
way arising out of, or consequential to the protection, assertion, or
enforcement of the Guarantied Obligations (or any security therefor),
irrespective of whether suit is brought.
14. Notices. Unless otherwise specifically provided in this Guaranty, any
notice or other communication relating to this Guaranty or any other agreement
entered into in connection therewith shall be in writing and shall be personally
delivered or sent by registered or certified mail, postage prepaid, return
receipt requested, or by prepaid telex, or telefacsimile, to Guarantor or to
Guarantied Party, as the case may be, at its addresses set forth in the Loan
Agreement.
The parties hereto may change the address at which they are to receive
notices hereunder, by notice in writing in the foregoing manner given to the
other. All notices or demands sent in accordance with this Section 14, shall be
deemed received on the earlier of the date of actual receipt or three (3)
calendar days after the deposit thereof in the mail.
15. Cumulative Remedies. No remedy under this Guaranty, under the
Consignment Agreement, or any other Consignment Document is intended to be
exclusive of any other remedy, but each and every remedy shall be cumulative and
in addition to any and every other remedy given under this Guaranty, under the
Consignment Agreement, or any other Consignment Document, and those provided by
law. No delay or omission by Guarantied Party to exercise any right under this
Guaranty shall impair any such right nor be construed to be a waiver thereof. No
failure on the part of Guarantied Party to exercise, and no delay in exercising,
any right under this Guaranty shall operate as a waiver thereof; nor shall any
single or partial exercise of any right under this Guaranty preclude any other
or further exercise thereof or the exercise of any other right.
16. Severability of Provisions. Any provision of this Guaranty which is
prohibited or unenforceable under applicable law shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
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17. Entire Agreement; Amendments. This Guaranty constitutes the entire
agreement between Guarantor and Guarantied Party pertaining to the subject
matter contained herein. This Guaranty may not be altered, amended, or modified,
nor may any provision hereof be waived or noncompliance therewith consented to,
except by means of a writing executed by both Guarantor and Guarantied Party.
Any such alteration, amendment, modification, waiver, or consent shall be
effective only to the extent specified therein and for the specific purpose for
which given. No course of dealing and no delay or waiver of any right or default
under this Guaranty shall be deemed a waiver of any other, similar or
dissimilar, right or default or otherwise prejudice the rights and remedies
hereunder.
18. Successors and Assigns. This Guaranty shall be binding upon Guarantor
and its successors and assigns and shall inure to the benefit of the successors
and assigns of Guarantied Party; provided, however, Guarantor shall not assign
this Guaranty or delegate any of its duties hereunder without Guarantied Party's
prior written consent and any unconsented to assignment shall be absolutely
void. In the event of any assignment or other transfer of rights by Guarantied
Party, the rights and benefits herein conferred upon Guarantied Party shall
automatically extend to and be vested in such assignee or other transferee.
19. No Third Party Beneficiary. This Guaranty is solely for the benefit of
Guarantied Party and its successors and assigns and may not be relied on by any
other Person.
20. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
THE VALIDITY OF THIS GUARANTY, ITS CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS
ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF RHODE ISLAND.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION
WITH THIS GUARANTY SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL
COURTS LOCATED IN THE COUNTY OF PROVIDENCE, STATE OF RHODE ISLAND, OR AT THE
SOLE OPTION OF GUARANTIED PARTY, IN ANY OTHER COURT IN WHICH GUARANTIED PARTY
SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH OF GUARANTOR AND GUARANTIED
PARTY WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY
HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE
EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 20.
GUARANTOR AND GUARANTIED PARTY HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
GUARANTY OR ANY OF THE
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TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. GUARANTOR AND
GUARANTIED PARTY REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
21. Period of Effectiveness. Anything to the contrary hereinabove provided
notwithstanding: (a) This Guaranty shall become effective at the same instant
that Amendment Number One becomes effective; and (b) At such time, if any, as
the Relevant Period ends and as the Obligations of Guarantor with respect to the
Guarantied Obligations revert back to primary obligations pursuant to Section
4(c) of Amendment Number One, this Guaranty shall cease to be effective, and
Guarantor's Obligations shall be primary obligations as a co-obligor pursuant to
the Consignment Documents other than this Guaranty.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty as an instrument under seal of the date first written above.
TOWN & COUNTRY CORPORATION,
a Massachusetts corporation
By____________________________________
Title________________________________
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