Exhibit 10.2
GUARANTY
THIS GUARANTY ("Guaranty") is made as of March 11, 1998, by ON STAGE
ENTERTAINMENT, INC., a Nevada corporation ("Guarantor"), to and for the benefit
of IMPERIAL CREDIT COMMERCIAL MORTGAGE INVESTMENT CORP., a Maryland corporation
("Lender").
RECITALS
A. Lender has agreed to make the following loans (each, a "Loan" and
collectively, the "Loans") to the following borrowers ("Borrowers")
pursuant to a Loan Agreement (the "Loan Agreement") dated as of the date
hereof:
Borrower Loan Amount Property Address
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King Henry's, Inc. $5,000,000 0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx
Fort Liberty, Inc. $6,600,000 0000 Xxxx Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx
Wild Bills California, Inc. $ 900,000 0000 Xxxxx Xxxxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx
Each Loan is evidenced by a note (each, a "Note" and collectively the
"Notes") and secured by a mortgage or deed of trust (each a "Mortgage"
and collectively the "Mortgages") of even date herewith encumbering
certain real and other property owned by Borrowers in California and
Florida and described therein (each a "Property" and collectively the
"Properties"), and other security documents (the Loan Agreement, the
Notes, the Mortgages and any and all other documents or instruments
executed in connection with or as security for the Notes being sometimes
hereinafter collectively referred to as the "Loan Documents").
B. Guarantor is an affiliate of Borrowers, and will benefit from Lender
making the Loans described in the Loan Agreement.
C. Lender has relied on the statements and agreements contained herein in
agreeing to make the Loans. The execution and delivery of this Guaranty
by Guarantor is a condition precedent to the making of the Loans by
Lender.
AGREEMENTS
NOW, THEREFORE, intending to be legally bound and intending by this
Guaranty to induce Lender to make the Loans, Guarantor, in consideration
of the matters described in the foregoing Recitals, which Recitals are
incorporated herein and made a part hereof, and for other good and
valuable consideration, the receipt and sufficiency of which are
acknowledged, hereby covenants and agrees for the benefit of Lender and
its successors, indorsees, transferees, participants and assigns as
follows:
. Guarantor absolutely, unconditionally and irrevocably guarantees:
() the full and prompt payment of the principal of and interest on the
Loans when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter, and the full and prompt payment
of all sums which may now be or may hereafter become due and owing under
the Notes, the Loan Agreement and the other Loan Documents; and
() the full, complete and punctual observance, performance and
satisfaction of all of the obligations, duties, covenants and agreements
under the Loan Agreement and the other Loan Documents; and
() the full and prompt payment of any Enforcement Costs (as hereinafter
defined in Section 7 hereof).
All amounts due, debts, liabilities and payment obligations described in
subsections (a), (b) and (c) of this Section 1 shall be hereinafter
collectively referred to as the "Indebtedness".
. In the event of any default by Borrowers in the payment of the
Indebtedness, after the expiration of any applicable cure or grace
period, Guarantor agrees, on demand by Lender or the holder of the Notes,
to pay the Indebtedness regardless of any defense, right of set-off or
claims which Borrowers or Guarantor may have against Lender or the holder
of the Notes.
All of the remedies set forth herein and/or provided for in any of the
Loan Documents or at law or equity shall be equally available to Lender,
and the choice by Lender of one such alternative over another shall not
be subject to question or challenge by Guarantor or any other person, nor
shall any such choice be asserted as a defense, setoff, or failure to
mitigate damages in any action, proceeding, or counteraction by Lender to
recover or seeking any other remedy under this Guaranty, nor shall such
choice preclude Lender from subsequently electing to exercise a different
remedy. The parties have agreed to the alternative remedies provided
herein in part because they recognize that the choice of remedies in the
event of a default hereunder will necessarily be and should properly be a
matter of good-faith business judgment, which the passage of time and
events may or may not prove to have been the best choice to maximize
recovery by Lender at the lowest cost to Borrowers and/or Guarantor. It
is the intention of the parties that such good-faith choice by Lender be
given conclusive effect regardless of such subsequent developments.
. Guarantor does hereby waive (a) notice of acceptance of this Guaranty
by Lender and any and all notices and demands of every kind which may be
required to be given by any statute, rule or law, (b) any defense, right
of set-off or other claim which Guarantor may have against Borrower or
which Guarantor or Borrowers may have against Lender or the holder of the
Note, (c) presentment for payment, demand for payment, notice of
nonpayment or dishonor, protest and notice of protest, diligence in
collection and any and all formalities which otherwise might be legally
required to charge Guarantor with liability, and (d) any failure by
Lender to inform Guarantor of any facts Lender may now or hereafter know
about Borrowers, the Properties, the Loans, or the transactions
contemplated by the Loan Agreement, it being understood and agreed that
Lender have no duty so to inform and that Guarantor is fully responsible
for being and remaining informed by Borrowers of all circumstances
bearing on the risk of nonpayment of the Indebtedness. Credit may be
granted or continued from time to time by Lender to Borrowers without
notice to or authorization from Guarantor, regardless of the financial or
other condition of Borrowers at the time of any such grant or
continuation. Lender shall have no obligation to disclose or discuss with
Guarantor its assessment of the financial condition of Borrowers.
Guarantor acknowledges that no representations of any kind whatsoever
have been made to him or it by Lender. No modification or waiver of any
of the provisions of this Guaranty shall be binding upon Lender except as
expressly set forth in a writing duly signed and delivered on behalf of
Lender.
. Guarantor further agrees that Guarantor's liability as guarantor shall
in nowise be impaired or affected by any renewals or extensions which may
be made from time to time, with or without the knowledge or consent of
Guarantor of the time for payment of interest or principal under the
Notes or by any forbearance or delay in collecting interest or principal
under the Notes, or by any waiver by Lender under the Loan Agreement,
Mortgages or any other Loan Documents, or by Lender's failure or election
not to pursue any other remedies it may have against Borrowers or
Guarantor, or by any change or modification in the Notes, Loan Agreement,
Mortgages or any other Loan Document, or by the acceptance by Lender of
any additional security or any increase, substitution or change therein,
or by the release by Lender of any security or any withdrawal thereof or
decrease therein, or by the application of payments received from any
source to the payment of any obligation other than the Indebtedness, even
though Lender might lawfully have elected to apply such payments to any
part or all of the Indebtedness, it being the intent hereof that
Guarantor shall remain liable as principal for payment of the
Indebtedness until the Indebtedness has been paid in full,
notwithstanding any act or thing which might otherwise operate as a legal
or equitable discharge of a surety. Each Guarantor further understands
and agrees that Lender may at any time enter into agreements with
Borrowers to amend and modify the Notes, Loan Agreement, Mortgages or
other Loan Documents, and may waive or release any provision or
provisions of the Notes, Loan Agreement, Mortgages and other Loan
Documents or any thereof, and, with reference to such instruments, may
make and enter into any such agreement or agreements as Lender and
Borrowers may deem proper and desirable, without in any manner impairing
or affecting this Guaranty or any of Lender's rights hereunder or
Guarantor's obligations hereunder. Without limiting the generality of the
foregoing, (a) to the extent California law is deemed to apply to this
Guaranty notwithstanding the choice of Florida law provided in Section 17
hereof, Guarantor expressly waives any and all benefits, rights and
defenses (i) arising out of an election of remedies by Lender, even
though that election of remedies, such as nonjudicial foreclosure with
respect to security for the Indebtedness, has destroyed Guarantor's
rights of subrogation and reimbursement against Borrowers including by
the operation of Section 580d of the California Code of Civil Procedure
or otherwise, and (ii) under California Code of Civil Procedure Sections
580a, 580b, 580d or 726; and (b) Guarantor waives all rights and defenses
that Guarantor may have because the Borrowers' debt is secured by real
property, which means, among other things: (1) Lender may collect from
Guarantor without first foreclosing on any real or personal property
collateral pledged by Borrowers. (2) If Lender forecloses on any real
property collateral pledged by Borrowers: (A) The amount of the debt may
be reduced only by the price for which that collateral is sold at the
foreclosure sale, even if the collateral is worth more than the sale
price. (B) Lender may collect from Guarantor even if Lender, by
foreclosing on the real property collateral, has destroyed any right
Guarantor may have to collect from Borrowers. This is an unconditional
and irrevocable waiver of any rights and defenses Guarantor may have
because Borrowers' debt is secured by real property. These rights and
defenses include, but are not limited to, to the extent held applicable
hereto, any rights or defenses based upon Section 580a, 580b, 580d, or
725 of the Code of Civil Procedure.
. This is an absolute, present and continuing guaranty of payment and not
of collection. Guarantor agrees that this Guaranty may be enforced by
Lender without the necessity at any time of resorting to or exhausting
any other security or collateral given in connection herewith or with the
Notes, Loan Agreement, Mortgages or any of the other Loan Documents
through foreclosure or sale proceedings, as the case may be, under the
Mortgages or otherwise, or resorting to any other guaranties, and
Guarantor hereby waives any right to require Lender to join Borrowers in
any action brought hereunder or to commence any action against or obtain
any judgment against Borrowers or to pursue any other remedy or enforce
any other right. Guarantor further agrees that nothing contained herein
or otherwise shall prevent Lender from pursuing concurrently or
successively all rights and remedies available to it at law and/or in
equity or under the Notes, Loan Agreement, Mortgages or any other Loan
Documents, and the exercise of any of its rights or the completion of any
of its remedies shall not constitute a discharge of Guarantor's
obligations hereunder, it being the purpose and intent of Guarantor that
the obligations of Guarantor hereunder shall be absolute, independent and
unconditional under any and all circumstances whatsoever. None of
Guarantor's obligations under this Guaranty or any remedy for the
enforcement thereof shall be impaired, modified, changed or released in
any manner whatsoever by any impairment, modification, change, release or
limitation of the liability of Borrowers under the Notes, Loan Agreement,
Mortgages or other Loan Documents or by reason of the bankruptcy of
Borrowers or by reason of any creditor or bankruptcy proceeding
instituted by or against Borrowers. This Guaranty shall survive
foreclosure of the Mortgages until the Indebtedness is paid or satisfied
in full, and shall survive any deed in lieu of foreclosure. Subject to
the following sentence, this Guaranty shall terminate and be released
upon the payment in full of all sums due under the Notes, Loan Agreement
and the other Loan Documents (including, without limitation, all
Enforcement Costs) and Lender's release of the Mortgages. This Guaranty
shall continue to be effective or be reinstated (as the case may be) if
at any time payment of all or any part of any sum payable pursuant to the
Notes, Loan Agreement, Mortgages or any other Loan Document is rescinded
or otherwise required to be returned by Lender upon the insolvency,
bankruptcy, dissolution, liquidation, or reorganization of Borrowers, or
upon or as a result of the appointment of a receiver, intervenor,
custodian or conservator of or trustee or similar officer for, Borrowers
or any substantial part of their property, or otherwise, all as though
such payment to Lender had not been made, regardless of whether Lender
contested the order requiring the return of such payment. The obligations
of Guarantor pursuant to the preceding sentence shall survive any
termination, cancellation, or release of this Guaranty. In the event of
the foreclosure of the Mortgages and of a deficiency, Guarantor hereby
promises and agrees forthwith to pay the amount of such deficiency
notwithstanding the fact that recovery of said deficiency against
Borrowers would not be allowed by applicable law; however, the foregoing
shall not be deemed to require that Lender institute foreclosure
proceedings or otherwise resort to or exhaust any other collateral or
security prior to or concurrently with enforcing this Guaranty.
. In the event Lender or the holder of the Notes shall assign the Notes
to any bank or other entity (including a trust) to secure a loan from
such bank or other entity to Lender or such holder for an amount not in
excess of the amount which will be due, from time to time, from Borrowers
to Lender under the Notes with interest not in excess of the rate of
interest which is payable by Borrowers to Lender under the Notes,
Guarantor will accord full recognition thereto and agree that all rights
and remedies of Lender or such holder hereunder shall be enforceable
against Guarantor by such bank or other entity with the same force and
effect and to the same extent as would have been enforceable by Lender or
such holder but for such assignment; provided, however, that unless
Lender shall otherwise consent in writing, Lender shall have an
unimpaired right, prior and superior to that of its assignee or
transferee, to enforce this Guaranty for Lender's benefit to the extent
any portion of the Indebtedness or any interest therein is not assigned
or transferred.
. If: (a) this Guaranty is placed in the hands of an attorney for
collection or is collected through any legal proceeding; (b) an attorney
is retained to represent Lender in any bankruptcy, reorganization,
receivership, or other proceedings affecting creditors' rights and
involving a claim under this Guaranty; (c) an attorney is retained to
provide advice or other representation with respect to this Guaranty; or
(d) an attorney is retained to represent Lender in any other proceedings
whatsoever in connection with this Guaranty, then Guarantor shall pay to
Lender upon demand all attorneys' fees, costs and expenses, including,
without limitation, court costs, filing fees, recording costs, expenses
of foreclosure, title insurance premiums, survey costs, minutes of
foreclosure, and all other costs and expenses incurred in connection
therewith (all of which are referred to herein as "Enforcement Costs"),
in addition to all other amounts due hereunder, regardless of whether all
or a portion of such Enforcement Costs are incurred in a single
proceeding brought to enforce this Guaranty as well as the other Loan
Documents.
. The parties hereto intend and believe that each provision in this
Guaranty comports with all applicable local, state and federal laws and
judicial decisions. However, if any provision or provisions, or if any
portion of any provision or provisions, in this Guaranty is found by a
court of law to be in violation of any applicable local, state or federal
ordinance, statute, law, administrative or judicial decision, or public
policy, and if such court should declare such portion, provision or
provisions of this Guaranty to be illegal, invalid, unlawful, void or
unenforceable as written, then it is the intent of all parties hereto
that such portion, provision or provisions shall be given force to the
fullest possible extent that they are legal, valid and enforceable, that
the remainder of this Guaranty shall be construed as if such illegal,
invalid, unlawful, void or unenforceable portion, provision or provisions
were not contained therein, and that the rights, obligations and interest
of Lender or the holder of the Notes under the remainder of this Guaranty
shall continue in full force and effect.
. Any indebtedness of Borrowers to Guarantor now or hereafter existing is
hereby subordinated to the Indebtedness. Guarantor agrees that, until the
entire Indebtedness has been paid in full, Guarantor will not seek,
accept, or retain for its own account, any payment from Borrowers on
account of such subordinated debt. Any payments to Guarantor on account
of such subordinated debt shall be collected and received by Guarantor in
trust for Lender and shall be paid over to Lender on account of the
Indebtedness without impairing or releasing the obligations of Guarantor
hereunder.
. Any amounts received by Lender from any source on account of the Loans
may be applied by Lender toward payment of the Indebtedness and in such
order of application as Lender may from time to time elect.
. GUARANTOR WAIVES AND RELEASES ANY CLAIM (WITHIN THE MEANING OF 11
U.S.C. ss. 101) WHICH GUARANTOR MAY HAVE AGAINST BORROWER ARISING FROM A
PAYMENT MADE BY GUARANTOR UNDER THIS GUARANTY AND AGREES NOT TO ASSERT OR
TAKE ADVANTAGE OF ANY RIGHT TO PROCEED AGAINST BORROWER FOR
REIMBURSEMENT. IT IS EXPRESSLY UNDERSTOOD THAT THE WAIVERS AND AGREEMENTS
OF GUARANTOR SET FORTH ABOVE CONSTITUTE ADDITIONAL AND CUMULATIVE
BENEFITS GIVEN TO LENDER FOR ITS SECURITY AND AS AN INDUCEMENT FOR ITS
EXTENSION OF CREDIT TO BORROWERS.
. Any notice, demand, request or other communication which any party
hereto may be required or may desire to give hereunder shall be in
writing and shall be deemed to have been properly given (a) if hand
delivered, when delivered; (b) if mailed, upon the third Business Day
after the day on which it is deposited in the United States Registered or
Certified Mail, postage prepaid, return receipt requested, addressed as
set forth below; (c) if by Federal Express or other reliable express
courier service, on the next Business Day after delivered to such express
courier service, or (d) if via facsimile, on the date of transmission, as
addressed as set forth below:
If to Guarantor:
On Stage Entertainment, Inc.
0000 Xxxxx Xxxxx, Xxxxx 00
Xxx Xxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxx
With a copy to:
Xxxxxx Xxxxx & Bockius LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx XxXxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Lender:
00000 Xxxxxxxx Xxxx.
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
XXXXXXXXXXXX XXXX & XXXXXXXXX
000 X. Xxxxxxxx Xx., #0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
. In order to induce Lender to make the Loans, Guarantor makes the
following representations and warranties to Lender set forth in this
Section. Guarantor acknowledges that but for the truth and accuracy of
the matters covered by the following representations and warranties,
Lender would not have agreed to make the Loans.
() Guarantor maintains an office at the address set forth for it in
Section 12.
() Guarantor has full power and authority to execute, deliver and perform
its covenants, agreements and obligations under this Guaranty. All
necessary actions have been taken and all necessary consents and
approvals received so that upon the execution and delivery to Lender by
Guarantor of this Guaranty, the execution, delivery and performance of
this Guaranty will have been duly authorized.
() Any and all balance sheets, net worth statements, and other financial
data with respect to Borrowers, Guarantor or Gedco USA, Inc., a Florida
Sub S corporation, and its affiliated entities which have heretofore been
given to Lender by or on behalf of Guarantor fairly and accurately
present the financial condition of Guarantor as of the respective dates
thereof.
() The execution, delivery, and performance by Guarantor of this Guaranty
does not and will not contravene or conflict with (i) any law, order,
rule, regulation, writ, injunction or decree now in effect of any
government, governmental instrumentality court having jurisdiction over
Guarantor, (ii) any contractual restriction binding on or affecting
Guarantor or any of Guarantor's property or assets which may adversely
affect Guarantor's ability to fulfill their obligations under this
Guaranty, or (iii) the instruments creating any trust holding title to
any assets included in Guarantor's financial statements.
() This Guaranty creates legal, valid, and binding obligations of
Guarantor enforceable in accordance with its terms.
() Except as disclosed in writing to Lender, there is no action,
proceeding, or investigation pending or, to the knowledge of Guarantor,
threatened or affecting Guarantor, which may adversely affect
Guarantor's' ability to fulfill their obligations under this Guaranty.
There are no judgments or orders for the payment of money rendered
against Guarantor which have been undischarged for a period of ten (10)
or more consecutive days and the enforcement of which is not stayed by
reason of a pending appeal or otherwise. No Guarantor is in default under
any agreements which may adversely affect Guarantor's ability to fulfill
its obligations under this Guaranty.
() Guarantor has disclosed all events, conditions, and facts known to
Guarantor which are more likely than not to have a material adverse
effect on the financial condition of Guarantor. No representation or
warranty by Guarantor contained herein, nor any schedule, certificate, or
other document furnished by Guarantor to Lender in connection with this
Guaranty or the Loans contains any material misstatement of fact or omits
to state a material fact or any fact necessary to make the statements
contained therein not misleading.
() There are no facts or circumstances of any kind or nature of which
Guarantor is aware which are more likely than not to in any way impair or
prevent Guarantor from performing Guarantor's obligations under this
Guaranty in any material respect.
() All statements set forth in the Recitals are true and correct.
() All representations and warranties made by Borrowers in the Loan
Documents are true and correct.
Guarantor hereby agrees to indemnify and hold Lender free and harmless
from and against all loss, cost, liability, damage, and expense,
including attorney's fees and costs, which Lender may sustain by reason
of the inaccuracy or breach of any of the foregoing representations and
warranties as of the date the foregoing representations and warranties
are made.
. Guarantor shall deliver or cause to be delivered to Lender its
financial statements in the same form and manner as Borrowers are
required to provide under the Mortgages or Loan Agreement.
. Guarantor shall, within five (5) business days after receipt thereof,
deliver to Lender copies of any notices of default served on Guarantor
pursuant to the terms of any other material agreement to which Guarantor
is a party. . This Guaranty shall be binding upon the heirs, executors,
legal and personal representatives, successors and assigns of Guarantor
and shall not be discharged in whole or in part by the death or
dissolution of Guarantor.
. This Agreement and each of the provisions contained herein shall be
governed by and construed under the internal laws (as opposed to the laws
of conflicts) of the State of Florida.
. Any and all amounts required to be paid by Guarantor hereunder shall be
paid to Lender in United States currency at such place as Lender may,
from time to time, in writing appoint.
. Lender shall be entitled to honor any request for an advance of Loan
proceeds made by Borrowers and shall have no obligation to see to the
proper disposition of such advances. Guarantor agrees that its
obligations hereunder shall not be released or affected by reason of any
improper disposition by Borrowers of the proceeds of such advances.
. Any provision hereof to the contrary notwithstanding, Lender, by virtue
of this Guaranty or any action taken pursuant hereto or contemplated
hereby, shall not be deemed to be a partner or joint venturer with
Guarantor or any other parties. Guarantor shall indemnify and hold Lender
harmless from and against any and all liabilities, damages, claims,
demands, costs and expenses (including, without limitation, the costs and
expenses of defending or settling any such claims or demands and all
reasonable fees and disbursements of legal counsel engaged or employed by
Lender in defending and settling such claims or demands) resulting from
such a construction of the parties and their relationship. Any inspection
of the Properties, any review of documents submitted to Lender or its
consultants, or any analysis of the Properties made by Lender or any of
its respective agents, architects or consultants is intended solely for
the benefit of Lender and shall not be deemed to create or form the basis
of any warranty, representation, covenant, implied promise or liability
to Guarantor, or any contractor or subcontractor, or any other person or
entity.
. GUARANTOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER
IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE
GUARANTY, THE LOANS, THE LOAN DOCUMENTS OR ANY ACTS OR OMISSIONS OF
LENDER, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION
THEREWITH.
IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty as of the
date first written above.
GUARANTOR: ON STAGE ENTERTAINMENT, INC.,
a Nevada corporation
By:_________________________
Name:_______________________
Title:______________________
0000 X. Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Signed and sealed and delivered in the presence of:
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Print Name:_______________________
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Print Name:_______________________
