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EXHIBIT 10.62
UNLIMITED GUARANTY
(ALL GUARANTORS)
UNLIMITED GUARANTY, dated as of January, 1999, in favor of FIRESTONE
FINANCIAL CORP., a Massachusetts corporation with its principal office at 00
Xxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 ("Firestone"). In consideration
of Firestone's giving, in its discretion from time to time, credit facilities or
accommodations to Darlington Music Company, Inc. together with its successors,
the "Customer"), each of the undersigned (each a "Guarantor"), agrees as
follows:
1. GUARANTY OF PAYMENT AND PERFORMANCE. Each Guarantor, jointly and
severally if more than one, hereby guarantees to Firestone the full and punctual
payment when due (whether at maturity, by acceleration or otherwise), and the
performance, of all liabilities, agreements and other obligations of the
Customer to Firestone, whether direct or indirect, absolute or contingent, due
or to become due, secured or unsecured, now existing or hereafter arising or
acquired, whether by way of discount, lease, loan or otherwise and whether the
Customer may be liable individually or jointly with others (the "Obligations").
This Guaranty is an absolute, unconditional and continuing guaranty of the full
and punctual payment and performance of the Obligations and not of their
collectibility only and is in no way conditioned upon any requirement that
Firestone first attempt to collect any of the Obligations from the Customer or
resort to any security or other means of obtaining their payment. Should the
Customer default in the payment or performance of any of the Obligations, the
obligations of each Guarantor hereunder shall become immediately due and payable
to Firestone, without demand or notice of any nature, all of which are expressly
waived by each Guarantor. Payments by a Guarantor hereunder may be required by
Firestone on any number of occasions.
2. GUARANTOR'S AGREEMENT TO PAY. Each Guarantor further agrees, as the
principal obligor and not as a guarantor only, to pay to Firestone, on demand,
all costs and expenses (including court costs and reasonable attorney's fees and
expenses) incurred or expended by Firestone in connection with the Obligations,
this Guaranty and the enforcement thereof, together with interest on amounts
recoverable under this Guaranty from the time such amounts become due until
payment in full, at the rate per annum equal to 18%; provided that if such
interest exceeds the maximum amount permitted to be paid under applicable law,
then such interest shall be reduced to such maximum permitted amount.
3. UNLIMITED GUARANTY. The liability of each Guarantor hereunder shall
be unlimited.
4. REPRESENTATIONS AND WARRANTIES. Each Guarantor makes the following
representations and warranties which shall survive the execution and delivery of
this Guaranty:
a. If the Guarantor is a corporation, partnership, limited
liability company, business trust or other organization, the Guarantor
(i) is duly organized and validly existing in good standing under the
laws of the jurisdiction in which it is organized; (ii) has the power
and authority to own its properties and to carry on its business as
being conducted on the date hereof; (iii) is duly qualified to transact
business and is in good standing in every jurisdiction in which the
ownership of property or the nature of the business conducted by it
makes such qualification necessary; (iv) has the power and authority to
execute, deliver and carry out the terms and provisions of this
Guaranty; and (v) has taken all necessary action (including, without
limitation, any consent of stockholders, partners, members or
beneficiaries required by law, by its charter, by-laws or other
organizational agreement or otherwise) to authorize the execution,
delivery and performance hereof and the consummation of the
transactions contemplated hereby.
b. Neither the execution and delivery of this Guaranty, nor
the consummation of any of the transactions contemplated hereby nor
compliance of any of the terms and provisions hereof will conflict
with, or result in a breach of any of the terms, conditions or
provisions of, or constitute a default under, or result in any
violation of, or result in the creation of any lien upon any of the
properties or assets of the Guarantor pursuant to its charter, or
by-laws or any applicable law, statute, rule, regulation or award of
any arbitrator or any agreement, instrument, order, judgement or decree
to which the Guarantor is a party or by which it or its properties are
subject or may be bound.
c. Neither the execution and delivery of this Guaranty, nor
the consummation of any of the transactions contemplated hereby
requires any consent, approval or authorization of, or filing,
recording, registration or qualification with, any court or
governmental or administrative body or authority.
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d. There are no actions, suits or proceedings pending, or to
the best of the Guarantor's knowledge after due inquiry with respect
thereto threatened, against or affecting the Guarantor before any court
or before any governmental or administrative body which might result in
any material adverse change in the business, operations, properties,
assets or condition (financial or otherwise) of the Guarantor or in any
material liability on the part of the Guarantor.
e. The Guarantor has, independently and based on such
documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Guaranty. This Guaranty
is not made in reliance on any representation or warranty, express or
implied, by Firestone concerning the financial condition of the
Customer, the nature, value or extent of any security for the
Obligations, or any other matter. The Guarantor warrants that it has
full knowledge of the financial condition of the Customer and agrees
that it will continue to be fully cognizant of the Customer's financial
condition until all Obligations are finally paid in full in cash, and
Firestone has no obligation to advise the Guarantor of any information
relating to the Customer's financial condition or otherwise relating to
the Customer or any Obligation or any security therefor or guaranty
thereof.
f. The Guarantor will receive substantial direct and indirect
benefits from the financial accommodations extended by Firestone to the
Customer, and the waivers set forth in this Guaranty are knowingly made
in contemplation of such benefits.
g. All financial statements of the Guarantor (including any
related schedules and notes) furnished to Firestone are complete and
correct and have been prepared in accordance with generally accepted
accounting principles consistently applied. The balance sheets fairly
present the financial position of the Guarantor as at the date thereof,
and the statements of income and retained earnings and cash flow fairly
present the results of the operations of the Guarantor for the period
indicated. There has been no material adverse change in the business,
operations, properties or assets or in the condition (financial or
otherwise) of the Guarantor since the date of such financial
statements.
5. WAIVERS BY GUARANTOR; FIRESTONE'S FREEDOM TO ACT. Each Guarantor
agrees that the Obligations will be paid and performed strictly in accordance
with their respective terms regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of Firestone with respect thereto. Each Guarantor waives presentment,
demand, protest, notice of acceptance, notice of Obligations incurred, notice of
any indulgences or extensions granted to the Customer or to any other person
which may be liable for the Obligations, notice of the occurrence of a default
or an event of default under any Obligation, notice of presentment and all other
notices of any kind, all defenses which may be available by virtue of any
valuation, stay, moratorium law or other similar law now or hereafter in effect,
any right to require the marshalling of assets of the Customer, and all
suretyship defenses generally. Without limiting the generality of the foregoing,
each Guarantor agrees to the provisions of any instrument evidencing, securing
or otherwise executed in connection with any Obligation and agrees that the
obligations of the Guarantor hereunder shall not be released or discharged, in
whole or in part, or otherwise affected by (i) the failure of Firestone to
assert any claim or demand or to enforce any right or remedy against the
Customer; (ii) any extensions or renewals of any Obligation; (iii) any
rescissions, waivers, amendments or modifications of any of the terms or
provisions of any agreement evidencing, securing or otherwise executed in
connection with any Obligation; (iv) the substitution or release of any entity
primarily or secondarily liable for any Obligation, including any Guarantor
hereunder; (v) the adequacy of any rights Firestone may have against any
collateral or other means of obtaining repayment of the Obligations; (vi) the
impairment of any collateral securing the Obligations, including without
limitation the failure to perfect or preserve any rights Firestone might have in
such collateral or the substitution, exchange, surrender, release, loss or
destruction of any such collateral; (vii) any change or restructuring of the
organizational structure of the Customer; or (viii) any other act or omission
which might in any manner or to any extent vary the risk of any Guarantor or
otherwise operate as a release or discharge of any Guarantor, all of which may
be done without notice to any Guarantor.
6. UNENFORCEABIL1TY OF OBLIGATIONS AGAINST CUSTOMER. If for any reason
the Customer has no legal existence or is under no legal obligation to discharge
any of the Obligations, or if any of the Obligations have become irrecoverable
from the Customer by operation of law or for any other reason, this Guaranty
shall nevertheless be binding on each Guarantor to the same extent as if each
Guarantor at all times had been the principal obligor on all such Obligations.
In the event that acceleration of the time for payment of the Obligations is
stayed upon the insolvency, bankruptcy or reorganization of the Customer, or for
any other reason, all such amounts otherwise subject to acceleration under the
terms of any agreement evidencing, securing or otherwise executed in connection
with any Obligation shall be immediately due and payable by each Guarantor.
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7. SUBROGATION. Until the payment and performance in full of all
Obligations and any and all obligations of the Customer to any affiliate of
Firestone, no Guarantor shall exercise any rights against the Customer arising
as a result of payment by the Guarantor hereunder, by way of subrogation or
otherwise, and will not prove any claim in competition with Firestone or its
affiliates in respect of any payment hereunder in bankruptcy or insolvency
proceedings of any nature; no Guarantor will claim any set-off or counterclaim
against the Customer in respect of any liability of any Guarantor to the
Customer; and each Guarantor waives any benefit of and any right to participate
in any collateral which may be held by Firestone or any such affiliate.
8. SUBORDINATION OF OTHER CUSTOMER DEBT. The payment of any amounts due
with respect to any indebtedness of the Customer now or hereafter held by each
Guarantor is hereby subordinated to the prior payment in full of the
Obligations, provided that so long as no default in the payment or performance
of the Obligations has occurred and is continuing, or no demand for payment of
any of the Obligations has been made that remains unsatisfied, the Customer may
make, and a Guarantor may demand and accept, any scheduled payments of principal
of and interest on such subordinated indebtedness in the amounts, at the rates
and on the dates specified in such instruments, securities or other writings as
shall evidence such subordinated indebtedness. Each Guarantor agrees that after
the occurrence of any default in the payment or performance of the Obligations,
the Guarantor will not demand, xxx for or otherwise attempt to collect any such
indebtedness of the Customer to the Guarantor until the Obligations shall have
been paid in full. If, notwithstanding the foregoing sentence, any Guarantor
shall collect, enforce or receive any amounts in respect of such indebtedness,
such amounts shall be collected, enforced and received by such Guarantor as
trustee for Firestone and be paid over to Firestone on account of the
Obligations without affecting in any manner the liability of such Guarantor
under the other provisions of this Guaranty.
9. FURTHER ASSURANCES. Each Guarantor agrees that such Guarantor will,
from time to time at the request of Firestone, provide to Firestone its most
recent audited and unaudited balance sheets and related statements of income and
changes in financial condition (prepared on a consolidated basis with the
Guarantor's subsidiaries, if any) and such other information relating to the
business and affairs of the Guarantor as Firestone may reasonably request. Each
Guarantor also agrees, upon demand after any change in the condition or affairs
(financial or otherwise) of such Guarantor deemed by Firestone to be adverse and
material, to secure the payment and performance of such Guarantor's obligations
hereunder by delivering, assigning or transferring to Firestone or granting
Firestone a security interest in additional collateral of a value and character
satisfactory to Firestone, and authorizes Firestone to file any financing
statement deemed by Firestone to be necessary or desirable to perfect any
security interest granted by such Guarantor to Firestone, and as agent for such
Guarantor, to sign the name of such Guarantor thereto. Each Guarantor also
agrees to do all such things and execute all such documents, including financing
statements, as Firestone may consider necessary or desirable to give full effect
to this Guaranty and to perfect and preserve the rights and powers of Firestone
hereunder. Each Guarantor also agrees that promptly after such Guarantor obtains
knowledge of any default or event or circumstances which with the passage of
time or giving of notice will become a default or event of default by the
Customer on any Obligation, or of any material change in the financial position
or business of the Customer, such Guarantor will immediately notify Firestone of
such default, event, circumstance or change.
10. TERMINATION; REINSTATEMENT. This Guaranty shall remain in full
force and effect with respect to all Guarantors until Firestone is given written
notice of a Guarantor's intention to discontinue this Guaranty, notwithstanding
any intermediate or temporary payment or settlement of the whole or any part of
the Obligations. No such notice shall be effective unless received and
acknowledged by an officer of Firestone. No such notice shall affect any rights
of Firestone with respect to Obligations incurred prior to the receipt of such
notice or with respect to Obligations incurred pursuant to any contract or
commitment in existence prior to such receipt, and all notes, instruments
(negotiable or otherwise) and writings made by or for the account of the
Customer purporting to be dated on or before the date of receipt of such notice,
although presented to or accepted by Firestone after that date, shall form part
of the Obligations. No notice from one Guarantor shall affect the obligations of
any other Guarantor hereunder. This Guaranty shall continue to be effective or
be reinstated, notwithstanding any such notice, if at any time any payment made
or value received with respect to an Obligation is rescinded or must otherwise
be returned by Firestone upon the insolvency, bankruptcy or reorganization of
the Customer, or otherwise, all as though such payment had not been made or
value received.
11. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon each
Guarantor, each Guarantor's successors and assigns, and shall inure to the
benefit of and be enforceable by Firestone and its successors, transferees and
assigns. Without limiting the generality of the foregoing sentence, Firestone
may assign or otherwise transfer any agreement or any note held by it
evidencing, securing or otherwise executed in connection with the Obligations,
or sell participations in any interest therein, to any other person or entity,
and such other person or entity shall thereupon become vested, to the extent set
forth in the agreement evidencing such assignment, transfer or participation,
with all the rights in respect thereof granted to Firestone herein.
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12. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by any Guarantor therefrom shall be
effective unless the same shall be in writing and signed by Firestone. No
failure on the part of Firestone to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right.
13. NOTICES. All notices and other communications called for hereunder
shall be made in writing and, unless otherwise specifically provided herein,
shall be deemed to have been duly made or given when delivered by hand or mailed
first class mail postage prepaid or, in the case of notice by facsimile, when
transmitted and receipt is confirmed, addressed as follows: if to a Guarantor,
at the address set forth adjacent to the Guarantor's signature hereto, and if to
Firestone, at 00 Xxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
President, facsimile no. (000) 000-0000, or at such address as any party may
designate by notice to the others in writing.
14. GOVERNING LAW; CONSENT TO JURISDICTION. This Guaranty shall be
construed as having been made in The Commonwealth of Massachusetts, and each
Guarantor agrees that, by entering into this Guaranty, each Guarantor transacted
business in Massachusetts. This Guaranty is intended to take effect as a sealed
instrument and shall be governed by, and construed in accordance with, the laws
of The Commonwealth of Massachusetts. Each Guarantor agrees that any suit for
the enforcement of this Guaranty may be brought in the courts of The
Commonwealth of Massachusetts or any Federal Court sitting therein and consents
to the non-exclusive jurisdiction of such court and to service of process in any
such suit being made upon the Guarantor by mail at the address specified in the
above under "Notices". Each Guarantor hereby waives any objection that such
Guarantor may now or hereafter have to the venue of any such suit or any such
court or that such suit was brought in an inconvenient court.
15. JOINT AND SEVERAL LIABILITY. All references to the Guarantor in
this Guaranty refer to each of the undersigned Guarantors. Each Guarantor is
liable for all of the Obligations of the Customer, and the liability of the
Guarantors is joint and several.
16. MISCELLANEOUS. This Guaranty constitutes the entire agreement of
each Guarantor with respect to the matters set forth herein. The rights and
remedies herein provided are cumulative and not exclusive of any remedies
provided by law or any other agreement, and this Guaranty shall be in addition
to any other guaranty of the Obligations. The invalidity or unenforceability of
any one or more sections of this Guaranty shall not affect the validity or
enforceability of its remaining provisions. Captions are for the ease of
reference only and shall not affect the meaning of the relevant provisions. The
meanings of all defined terms used in this Guaranty shall be equally applicable
to the singular and plural forms of the terms defined.
17. JURY WAIVER. FIRESTONE (BY ITS ACCEPTANCE HEREOF) AND EACH
GUARANTOR AGREE THAT NONE OF THEM, INCLUDING ANY ASSIGNEE OR SUCCESSOR, SHALL
SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER
LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF, THIS GUARANTY, ANY RELATED
INSTRUMENTS, ANY COLLATERAL OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG
ANY OF THEM. NEITHER FIRESTONE NOR ANY GUARANTOR SHALL SEEK TO CONSOLIDATE ANY
SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY
FIRESTONE AND EACH GUARANTOR, AND THESE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NEITHER FIRESTONE NOR ANY GUARANTOR HAS AGREED WITH OR REPRESENTED
TO ANY OF THE OTHERS THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered by its duly authorized officer, as of the date first
above stated, as a sealed instrument.
GUARANTOR: ADDRESS OF GUARANTOR:
LEISURE TIME CASINOS & RESORTS, INC. 0000 XXXXXXXXXXXXXX XXXXX
XXXXXXXX, XX 00000
By: /s/
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