GUARANTY
GUARANTY dated __________, 1997 by Xxxxxx X. XxXxxxxx, an
individual with an address at 000 Xxxxxxx XX, Xxxxx 0X, Xxxx- xxxxxxx, XX 00000
("Guarantor"), in favor of CASINO-CO CORPORATION, a Nevada corporation with an
address at 0000 Xxxxxxxx Xxxxxx, Xxx Xxxxx, XX 00000, New Jersey 0722-1540
("Lender").
BACKGROUND
Guarantor is a stockholder of NPD, Inc., a Delaware
corporation ("NPD"). NPD is indebted to Lender under the Promissory Note of NPD
(the "Note") dated of even date herewith issued to Lender under and pursuant to
a Loan Agreement dated of even date herewith between NPD and Lender (the "Loan
Agreement"). As an inducement to Lender to enter into the Loan Agreement and to
make the loan to NPD thereunder and under the Note, Guarantor has agreed to
execute and deliver to and in favor of Lender this Guaranty, pursuant to which
Guarantor agrees to guarantee the Obligations (as defined herein), subject to
and in accordance with the terms and conditions of this Guaranty. The debts,
liabilities and obligations of NPD to Lender under the Loan Agreement, the Note
and the Security Agreement (as defined in the Loan Agreement), any and all
expenses which may be paid or incurred by the Lender in collecting any or all of
the foregoing and/or enforcing any rights under this Guaranty, whether matured
or unmatured, absolute or contingent, direct or indirect, sole, joint or
several, are hereinafter collectively referred to as the "Obligations."
NOW THEREFORE, in consideration of the foregoing and
of the covenants and mutual agreements set forth below, and for other good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
and intending to be legally bound, Guarantor agrees as follows:
13. Guaranty. Guarantor hereby unconditionally and
irrevocably guarantees to Lender and its successors and assigns the full and
prompt payment and performance of all of the Obligations. Guarantor's liability
under this Guaranty to pay the Obligations shall be absolute, irrevocable and
unconditional irrespective of:
(i) any lack of validity or enforceability
of, or any rejection of or attempt to
reject, the Loan Agreement, Note, Securi-
ty Agreement, or any other agreement or
instrument relating thereto, or any xx-
xxx, failure or omission to enforce or
agreement not to enforce, or the stay or
enjoining by order of a court, by opera-
tion of law or otherwise, of the exercise
of any right with respect to the forego-
ing (including, in each case without
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limitation, as a result of the insolven-
cy, bankruptcy or reorganization of NPD
or any other person or entity;
(ii) any change in any term of, all or
any of the Obligations, or any other
amendment or waiver of or any
consent to a departure from the Loan
Agreement, Note, Security Agreement
or other instrument relating
thereto;
(iii)any insolvency, bankruptcy, reorganization,
arrangement, composition, liquidation,
dissolution or similar proceedings with
respect to NPD;
(iv) except as provided in Paragraph 2 hereof,
any failure, neglect or omission on the
part of any person or entity to give
Guarantor or any other person or entity
notice of any default in the payment of
any amount or Obligation guaranteed here-
under, or any act or omission by any
person or entity that destroys or impairs
any right of Guarantor to be subrogated
to the rights, claims or defenses of any
other person or entity;
(v) any claim, set-off, counterclaim,
defense or other rights which
Guarantor may have at any time and
from time to time against NPD,
whether in connection with this
transaction or any unrelated
transaction; or
(vi) any merger or consolidation of NPD
into or with any other corporation,
or, except as expressly provided
herein, any sale, lease or transfer
of any of the assets of NPD to any
other person or entity or any change
in the ownership of NPD.
14. Notice to Guarantor. Notwithstanding anything
to the contrary contained in this Guaranty, no payment shall be due from
Guarantor with respect to the Obligations until a written demand by Lender, for
payment thereof shall have been made upon Guarantor and 10 business days shall
have elapsed after receipt by Guarantor of such demand.
15. Waiver; Cumulative Rights. No failure on the
part of Lender to exercise, and no delay in exercising, any right,
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remedy, or power hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise by Lender of any right, remedy, or power hereunder
preclude any other or future exercise of any other right, remedy, or power. Each
and every right, remedy, and power hereby granted to Lender or allowed it by any
other agreement or guarantee shall be cumulative and not exclusive of any other
waivers set forth herein. No waiver of any provision of this Guaranty and no
consent to any departure therefrom shall in any event be effective unless the
same shall be in writing and signed by the party giving such consent or waiver,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Except for the notice specified in
Paragraph 2 of this Guaranty, no notice to or demand on Guarantor in any case
shall, of itself, entitle Guarantor to any other or further notice or demand in
similar or other circumstances.
16. Waiver by the Guarantor. Guarantor uncondi-
tionally waives, to the extent permitted by law, promptness, diligence, demand,
presentment, protest, notice of acceptance, notice of nonperformance and any
other notice (except as provided in Paragraph 2 hereof) with respect to any of
the Obligations and this Guaranty and any requirement that Lender or any other
person protect, secure, perfect or insure any security interest or lien or any
property subject thereto.
17. Subrogation. Notwithstanding any payment or
payments made by or for the credit or account of Guarantor, Guarantor shall not
be entitled to be subrogated to any of the rights of Lender against NPD or any
collateral security or guarantee or right of offset held by Lender for the
payment of the Obligations, nor shall Guarantor seek any reimbursement from NPD
in respect of payment made by Guarantor hereunder until all amounts due and
owing Lender under the Note shall have been fully paid. After such payment in
full, Guarantor shall be subrogated to such rights of Lender pari passu with any
other guarantors of the obligations arising under the Note to the extent that
such guarantors have made payment or payments on account of such obligations.
18. CHOICE OF LAW. THIS GUARANTY SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEVADA (WITHOUT
REGARD FOR THE CHOICE OF LAW PROVISIONS THEREOF).
19. Addresses for Notices. All notices or other
communications required or permitted hereunder shall be in writing and shall be
deemed to be given or delivered when delivered personally, or upon the third
business day following deposit by registered or certified mail, or on the first
business day following delivery by overnight courier addressed as set forth in
the preamble of this Guarantee or to such other address as shall be designated
by such party in a prior written notice to the other party.
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20. Assignment. Neither Lender nor Guarantor may
assign any of its rights or obligations hereunder except with the prior written
consent of the other, which consent may be withheld for any reason.
21. Modification; Amendment. No modification of
or amendment to this Guaranty shall be effective unless the same shall be in
writing and signed by both Guarantor and Lender.
IN WITNESS WHEREOF, this Guaranty has been duly
executed and delivered by Guarantor to Lender as of the date first
above written.
------------------------
Xxxxxx X. XxXxxxxx,
Attest: ___________________
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