GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty") is made and
entered into as of this 24th day of June, 2002, by Resorts International Hotel
and Casino, Inc., a Delaware corporation (the "Guarantor"), for the benefit of
CIT GROUP/EQUIPMENT FINANCING, INC., a Delaware corporation (the "Beneficiary").
PRELIMINARY STATEMENT
A. Resorts International Hotel, Inc., as Debtor ("Debtor"), and
Beneficiary, as Secured Party, entered into that certain Amended and Restated
Loan and Security Agreement, dated as of the date hereof (as amended,
supplemented, modified or assigned from time to time, the "Loan and Security
Agreement"). Any capitalized term used herein and not otherwise defined herein
shall have the meaning ascribed to such term in the Loan and Security Agreement.
The execution and delivery of this Guaranty to Beneficiary is a condition
precedent to the entering into the Loan and Security Agreement by Beneficiary.
B. Debtor is a direct wholly-owned subsidiary of Guarantor, and it is to
the advantage of Guarantor that Debtor and Beneficiary enter into the Loan and
Security Agreement, and Guarantor expects to derive benefit, directly or
indirectly, from the entering into by Debtor and Beneficiary of the Loan and
Security Agreement. But for Guarantor executing and delivering this Guaranty to
Beneficiary, Beneficiary would not enter into the Loan and Security Agreement.
Therefore, to induce Beneficiary to enter into the Loan and Security Agreement,
Guarantor is willing to execute and deliver to Beneficiary this Guaranty.
NOW, THEREFORE, in condition of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby agrees with Beneficiary, as follows:
1. GUARANTY OF GUARANTEED OBLIGATIONS. The Guarantor hereby guarantees,
and becomes surety for, the prompt payment and performance of all Obligations
(including any interest accruing thereon after maturity, or after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding relating to the Debtor, whether or not a claim
for post-filing or post-petition interest is allowed in such proceeding),
whether or not evidenced by any Document, whether direct or indirect (including
those acquired by assignment or participation), absolute or contingent, joint or
several, due or to become due, now existing or hereafter arising, and any
amendments, extensions, renewals or increases and all costs and expenses of the
Beneficiary incurred in the documentation, negotiation, modification,
enforcement, collection or otherwise in connection with any of the foregoing,
including reasonable attorneys' fees and expenses (hereinafter referred to
collectively as the "Guaranteed Obligations"). If the Debtor defaults under any
such Guaranteed Obligations, the Guarantor will pay the amount due to the
Beneficiary.
2. NATURE OF GUARANTY; WAIVERS. This is a guaranty of payment and not of
collection and the Beneficiary shall not be required, as a condition of the
Guarantor's liability, to make any demand upon or to pursue any of its rights
against the Debtor, or to pursue any rights
which may be available to it with respect to any other Person who may be liable
for the payment of the Guaranteed Obligations.
This is an absolute, unconditional, irrevocable and continuing guaranty and
will remain in full force and effect until all of the Guaranteed Obligations
have been indefeasibly paid in full. This Guaranty will remain in full force and
effect even if there is no principal balance outstanding under the Guaranteed
Obligations at a particular time or from time to time. This Guaranty will not be
affected by any surrender, exchange, acceptance, compromise or release by the
Beneficiary of any other party, or any other guaranty or any security held by it
for any of the Guaranteed Obligations, by any failure of the Beneficiary to take
any steps to perfect or maintain its lien or security interest in or to preserve
its rights to any security or other collateral for any of the Guaranteed
Obligations or any guaranty, or by any irregularity, unenforceability or
invalidity of any of the Guaranteed Obligations or any part thereof or any
security or other guaranty thereof. The Guarantor's obligations hereunder shall
not be affected, modified or impaired by any counterclaim, set-off, deduction or
defense based upon any claim the Guarantor may have against the Debtor or the
Beneficiary, except payment or performance of the Guaranteed Obligations.
Notice of acceptance of this Guaranty, notice of extensions of credit to
the Debtor from time to time, notice of default, diligence, presentment, notice
of dishonor, protest, demand for payment, and any defense based upon the
Beneficiary's failure to comply with the notice requirements of the applicable
version of UCC are hereby waived. The Guarantor waives all defenses based on
suretyship or impairment of collateral.
The Beneficiary at any time and from time to time, without notice to or the
consent of the Guarantor, and without impairing or releasing, discharging or
modifying the Guarantor's liabilities hereunder, may (a) change the manner,
place, time or terms of payment or performance of or interest rates on, or other
terms relating to, any of the Guaranteed Obligations; (b) renew, substitute,
modify, amend or alter, or grant consents or waivers relating to any of the
Guaranteed Obligations, any other guaranties, or any security for any Guaranteed
Obligations or guaranties; (c) apply any and all payments by whomever paid or
however realized including any proceeds of any collateral, to any Guaranteed
Obligations of the Debtor in such order, manner and amount as the Beneficiary
may determine in its sole discretion; (d) settle, compromise or deal with any
other person, including the Debtor or the Guarantor, with respect to any
Guaranteed Obligations in such manner as the Beneficiary deems appropriate in
its sole discretion; (e) substitute, exchange or release any security or
guaranty; or (f) take such actions and exercise such remedies hereunder as
provided herein.
3. REPAYMENTS OR RECOVERY FROM THE BENEFICIARY. If any demand is made at
any time upon the Beneficiary for the repayment or recovery of any amount
received by it in payment or on account of any of the Guaranteed Obligations and
if the Beneficiary repays all or any part of such amount by reason of any
judgment, decree or order of any court or administrative body or by reason of
any settlement or compromise of any such demand, the Guarantor will be and
remain liable hereunder for the amount so repaid or recovered to the same extent
as if such amount had never been received originally by the Beneficiary. The
provisions of this section will be and remain effective notwithstanding any
contrary action which may have been taken by the Guarantor in reliance upon such
payment, and any such contrary action so
taken will be without prejudice to the Beneficiary's rights hereunder and will
be deemed to have been conditioned upon such payment having become final and
irrevocable
4. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS. Guarantor agrees
that all the representations and warranties made by Debtor set forth in Article
5 of the Loan and Security Agreement with respect to Debtor apply (as fully as
if repeated herein) to Guarantor (to the extent applicable), including, to the
extent same representations and warranties are deemed repeated for purposes of
Article 4 of the Loan and Security Agreement. Guarantor agrees that each time in
the Loan and Security Agreement it provides, that Debtor shall cause Guarantor
to (a) comply with a covenant in the Loan and Security Agreement or (b) take (or
not take) a specified action (or language to the foregoing effect), then
Guarantor shall (and shall cause each other member of the Debtor Group to) so
comply with such covenant or take (or not take), as the case may be, such action
- whether or not Debtor causes it to do so.
5. ENFORCEABILITY OF GUARANTEED OBLIGATIONS. No modification, limitation
or discharge of the Guaranteed Obligations arising out of or by virtue of any
bankruptcy, reorganization or similar proceeding for relief of debtors under
federal or state law will affect, modify, limit or discharge the Guarantor's
liability in any manner whatsoever and this Guaranty will remain and continue in
full force and effect and will be enforceable against the Guarantor to the same
extent and with the same force and effect as if any such proceeding had not been
instituted. The Guarantor waives all rights and benefits which might accrue to
it by reason of any such proceeding and will be liable to the full extent
hereunder, irrespective of any modification, limitation or discharge of the
liability of the Debtor that may result from any such proceeding.
6. EVENTS OF DEFAULT. The occurrence of any of the following shall be an
"Event of Default": (i) any Event of Default (as defined in any of the Loan and
Security Agreement); (ii) any default under any of the Guaranteed Obligations
that does not have a defined set of "Events of Default" and the lapse of any
notice or cure period provided in such Guaranteed Obligations with respect to
such default; (iii) demand by the Beneficiary under any of the Guaranteed
Obligations that have a demand feature; (iv) the Guarantor's failure to perform
any of its obligations hereunder; (v) the falsity, inaccuracy or material breach
by the Guarantor of any written warranty, representation or statement made or
furnished to the Beneficiary by or on behalf of the Guarantor; or (vi) the
termination or attempted termination of this Guaranty. Upon the occurrence of
any Event of Default, (a) the Guarantor shall pay to the Beneficiary the amount
of the Guaranteed Obligations; or (b) on demand of the Beneficiary, the
Guarantor shall immediately deposit with the Beneficiary, in U.S. dollars, all
amounts due or to become due under the Guaranteed Obligations, and the
Beneficiary may at any time use such funds to repay the Guaranteed Obligations;
or (c) the Beneficiary in its discretion may exercise with respect to any
collateral any one or more of the rights and remedies provided a secured party
under the applicable version of the UCC; or (d) the Beneficiary in its
discretion may exercise from time to time any other rights and remedies
available to it under the Loan and Security Agreement, at law, in equity or
otherwise.
7. COSTS. To the extent that the Beneficiary incurs any costs or
expenses in protecting or enforcing its rights under the Guaranteed Obligations
or this Guaranty, including reasonable attorneys' fees and the costs and
expenses of litigation, such costs and expenses will
be due on demand, will be included in the Guaranteed Obligations and will bear
interest from the incurring or payment thereof at the rate set forth in Section
9.2(a) of the Loan and Security Agreement.
8. POSTPONEMENT OF SUBROGATION. Until the Guaranteed Obligations are
indefeasibly paid in full, the Guarantor postpones and subordinates in favor of
the Beneficiary any and all rights which the Guarantor may have to (a) assert
any claim against the Debtor based on subrogation rights with respect to
payments made hereunder, and (b) any realization on any property of the Debtor,
including participation in any marshalling of the Debtor's assets.
9. NOTICES. All notices, demands, requests, consents, approvals and
other communications required or permitted hereunder must be in writing and will
be effective upon receipt. Such notices and other communications may be
hand-delivered, sent by facsimile transmission with confirmation of delivery and
a copy sent by first-class mail, or sent by nationally recognized overnight
courier service, to the addresses for the Beneficiary and the Guarantor set
forth above or to such other address as one may give to the other in writing for
such purpose.
10. PRESERVATION OF RIGHTS. No delay or omission on the Beneficiary's
part to exercise any right or power arising hereunder will impair any such right
or power or be considered a waiver of any such right or power, nor will the
Beneficiary's action or inaction impair any such right or power. The
Beneficiary's rights and remedies hereunder are cumulative and not exclusive of
any other rights or remedies which the Beneficiary may have under other
agreements, at law or in equity. The Beneficiary may proceed in any order
against the Debtor, the Guarantor or any other obligor of, or collateral
securing, the Guaranteed Obligations.
11. ILLEGALITY. In case any one or more of the provisions contained in
this Guaranty should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
12. CHANGES IN WRITING. No modification, amendment or waiver of any
provision of this Guaranty nor consent to any departure by the Guarantor
therefrom will be effective unless made in a writing signed by the Beneficiary
and the Guarantor, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice to or
demand on the Guarantor in any case will entitle the Guarantor to any other or
further notice or demand in the same, similar or other circumstance.
13. ENTIRE AGREEMENT. This Guaranty (together with other Related
Documents) constitutes the entire agreement between the parties with regard to
the subject matter hereof and supersedes all prior written and oral statements,
discussions and agreements relating to the subject matter hereof.
14. SUCCESSORS AND ASSIGNS. This Guaranty will be binding upon and inure
to the benefit of the Guarantor and the Beneficiary and their respective heirs,
executors, administrators, successors and permitted assigns. Notwithstanding the
foregoing, Guarantor may not assign its rights or obligations under this
Agreement to any Person and any such purported assignment
without the prior written consent of Beneficiary shall be void. Beneficiary may
assign this Guaranty, in whole or in part, to any Person that becomes an
assignee of the Loan and Security Agreement (or any part thereof) without the
consent Guarantor. If Secured Party provide for participations in any one or
more Loans, then, Guarantors agrees that this Guaranty shall inure to the
benefit of such participant.
15. INTERPRETATION. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Guaranty shall refer to this Guaranty
as a whole and not to any particular provision of this Guaranty. Section, and
Subsection, references are to this Guaranty unless otherwise specified.
"Including", "includes," and "include" means "including, without limitation,"
"includes, without limitation," and "include, without limitation," whether or
not specified herein. Amendments and modifications include extensions,
consolidations, renewals or replacements. References to statutes are to be
construed as including all statutory provisions consolidating, amending or
replacing the statute referred to. Section and other headings contained in this
Guaranty are for reference purposes only and are not intended to describe,
interpret, define or limit the scope or intent of this Guaranty or any provision
hereof. All pronouns shall be deemed to include all other pronouns and genders,
and the singular shall include the plural and the vice versa.
16. INDEMNITY. Guarantor hereby covenants and agrees to indemnify, defend
and hold harmless Beneficiary and its officers, directors, employees and agents
and participants from and against any and all claims, demands, damages,
liabilities, costs and expenses (including reasonable fees and out-of-pocket
expenses of counsel) and losses of any kind or nature whatsoever which may be
incurred by or asserted against Beneficiary or any such other Person arising out
of, in connection with or otherwise relating to this Guaranty and/or any
Relevant Document, Guarantor's obligations under this 17 shall survive the
termination of all and/or any provisions of this Guaranty.
17. GOVERNING LAW AND JURISDICTION. This Guaranty shall be governed by,
and construed in accordance with, the laws of the State of New Jersey without
giving effect to the principles of conflicts of laws. The Guarantor hereby
irrevocably consents to the exclusive jurisdiction of any state or federal in
the State of New Jersey; provided that nothing contained in this Guaranty will
prevent the Beneficiary from bringing any action, enforcing any award or
judgment or exercising any rights against the Guarantor individually, against
any security or against any property of the Guarantor within any other county,
state or other foreign or domestic jurisdiction. The Guarantor acknowledges and
agrees that the venue provided above is the most convenient forum for both the
Beneficiary and the Guarantor. The Guarantor waives any objection to venue and
any objection based on a more convenient forum in any action instituted under
this Guaranty.
18. WAIVER OF JURY TRIAL. The Guarantor irrevocably waives any and all
right the Guarantor may have to a trial by jury in any action, proceeding or
claim of any nature relating to this Guaranty, any documents executed in
connection with this Guaranty or any transaction contemplated in any of such
documents. The Guarantor acknowledges that the foregoing waiver is knowing and
voluntary.
The Guarantor acknowledges that it has read and understood all the
provisions of this Guaranty, including waiver of jury trial, and has been
advised by counsel as necessary or appropriate.
[signature page follows]
WITNESS the due execution hereof as a document, as of the date first
written above, with the intent to be legally bound hereby.
WITNESS/ATTEST: RESORTS INTERNATIONAL
HOTEL & CASINO, INC.
/s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxx X. X'Xxxxx
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Print Name: Xxxxxxxx X. Xxxxx Print Name: Xxxxxx X. X'Xxxxx
Title: Secretary Title: Chief Financial Officer &
Senior Vice President of
Finance
