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EXHIBIT 4.05(d)
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GUARANTY OF PAYMENT
GENERAL HOST CORPORATION
TO
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
PREMISES: 0000 XXXX XXXXXX-XXXXXXXXXX,
XXXXXXXX, XXXX
DATED: AS OF APRIL 22, 1996
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THIS INSTRUMENT WAS PREPARED BY:
XXXXXXXX XXXXXX, ESQ.
XXXXXX & XXXXX LLP
000 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
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GUARANTY OF PAYMENT
THIS GUARANTY OF PAYMENT (this "Guaranty"), made as of the day of April 22,
1996 by GENERAL HOST CORPORATION, a New York corporation, having an office at
Metro Center, Xxx Xxxxxxx Xxxxx, X.X. Xxx 00000, Xxxxxxxx, XX 00000
("Guarantor") to and in favor of FIRST UNION NATIONAL BANK OF NORTH CAROLINA, a
national banking association, whose address is One First Xxxxx Xxxxxx XX-0,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("Lender").
W I T N E S S E T H:
WHEREAS, simultaneously with the execution and delivery of this Guaranty,
FRANK'S NURSERY AND CRAFTS, INC., a Michigan corporation and a wholly-owned
subsidiary of Guarantor ("Borrower") has executed and delivered to Lender, among
other things, its mortgage note in the principal amount of $ 741,000.00 (the
"Note") in connection with a loan (the "Loan") made by Lender to Borrower, to be
secured by, among other things, a certain mortgage and security agreement (the
"Mortgage") dated as of even date herewith in the principal amount of the Loan,
wherein Borrower is mortgagor and Lender is mortgagee (the Note, the Mortgage,
that certain Hazardous Substances Indemnity Agreement dated as of even date
herewith from Borrower and Guarantor in favor of Lender, and all other
documents, instruments and agreements evidencing, securing or otherwise relating
to the Loan are collectively, the "Loan Documents");
WHEREAS, the Mortgage covers Borrower's entire fee estate in certain real
property, together with the improvements now or hereafter erected thereon, as
more fully described in the Mortgage and Exhibit A thereto (the "Property");
WHEREAS, as a condition to making the Loan, Lender has required that
Guarantor guaranty payment of the Loan.
NOW, THEREFORE, in consideration of the Loan and other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, Guarantor hereby agrees as follows:
SECTION 1. TERMS OF GUARANTY
(a) Guarantor absolutely and unconditionally guarantees to Lender the
prompt payment of (i) all sums due under the Loan Documents (including any
renewals, modifications, extensions or changes thereto), and (ii) all transfer
taxes incurred upon a foreclosure sale, or the delivery of a deed in lieu of
foreclosure, of all or any portion of the Property. In addition, Guarantor
acknowledges and agrees that the guarantee set forth in this Section 1(a) shall
remain in full force and effect until such time as the Loan, including all
accrued and unpaid interest thereon, has been paid in full, notwithstanding the
acceleration or maturity of the Loan.
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(b) It is expressly understood and agreed that this Guaranty is a
continuing guarantee and that the obligations of Guarantor hereunder are and
shall be absolute under any and all circumstances, without regard to the
validity, regularity or enforceability of any of the Loan Documents. Guarantor,
by its execution hereof, acknowledges receipt of true copies of all of the Loan
Documents.
(c) The obligations, covenants, agreements and duties of Guarantor under
this Guaranty shall in no way be affected or impaired by reason of the
occurrence from time to time of any of the following with respect to the Loan
Documents or this Guaranty, or with respect to the Property, even though notice
may not have been given to, or received from, or the further consent of
Guarantor thereto may not have been obtained, and, to the extent permitted by
law, Guarantor hereby waives and agrees not to assert or take advantage of:
(i) Any right to require Lender to proceed against any other person
or to proceed against or exhaust any security held by Lender at any time or to
pursue any other remedy in Lender's power or under any other agreement before
proceeding against Guarantor hereunder;
(ii) Any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other person or persons or the failure of
Lender to file or enforce a claim against the estate (in administration,
bankruptcy or any other proceeding) of any other person or persons;
(iii) Demand, notice of demand, presentment for payment, notice of
acceptance of this Guaranty, notice of default or nonpayment, protest, notice of
protest, notice of dishonor and all other notices of any kind, or the lack of
any thereof, including, without limiting the generality of the foregoing, notice
of the existence, creation or incurring of any new or additional indebtedness or
obligation or of any action or non-action on the part of Lender, any endorser or
creditor of either Indemnitor or any other person whomsoever under this or any
other instrument in connection with any obligation or evidence of indebtedness
held by Lender;
(iv) Any defense based upon an election of remedies by Lender;
(v) Any right or claim of right to cause a marshalling of the assets
of Guarantor;
(vi) Any principle or provision of law, statutory or otherwise, which
is or might be in conflict with the terms and provisions of this Agreement;
(vii) Any lack of notice of disposition or of manner of disposition
of any collateral for the Loan;
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(viii) Any invalidity, irregularity or unenforceability, in whole or
in part, of any one or more of the Loan Documents;
(ix) Any lack of commercial reasonableness in dealing with the
collateral for the Loan;
(x) Any deficiencies in the collateral for the Loan or any deficiency
in the ability of Lender to collect or to obtain performance from any persons or
entities now or hereafter liable for the payment and performance of any
obligation hereby guaranteed;
(xi) Any assertion or claim that the automatic stay provided by 11
U.S.C. Section 362 (arising upon the voluntary or involuntary bankruptcy
proceeding of Borrower) or any other stay provided under any other debtor relief
law (whether statutory, common law, case law or otherwise) of any jurisdiction
whatsoever, now or hereafter in effect, which may be or become applicable, shall
operate or be interpreted to stay, interdict, condition, reduce or inhibit the
ability of Lender to enforce any of its rights, whether now or hereafter
required, which Lender may have against Guarantor or the collateral for the
Loan;
(xii) Any modifications of the Loan Documents or any obligation of
Borrower relating to the Loan by operation of law or by action of any court,
whether pursuant to the Bankruptcy Reform Act of 1978, as amended, or any other
debtor relief law (whether statutory, common law, case law or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(xiii) The waiver by Lender of the performance or observance by
Borrower of any agreement, covenant, term or condition to be performed or
observed by it;
(xiv) The extension of the time for the payment of any sums owing or
payable under the Loan Documents or the time for the performance of any other
obligation under or arising out of or on account of the Loan Documents;
(xv) The occurrence of the Maturity Date (as defined in the Note);
(xvi) The supplementing, modification or amendment (whether material
or otherwise) of any of the Loan Documents or any of the obligations of Borrower
set forth in the Loan Documents;
(xvii) Any failure, omission, delay or lack on the part of Lender or
any other person to enforce, assert or exercise any right, power or remedy
conferred on such person in or by virtue of any of the Loan Documents, or any
action on Lender's or such person's part granting indulgence or extension in any
form;
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(xviii) The release of any security under the Mortgage or the release,
modification, waiver or failure to enforce any other guaranty, pledge or
security device whatsoever;
(xix) The sale, transfer or conveyance of the Property or any interest
therein to any party, whether now or hereafter having or acquiring an interest
in the Property;
(xx) The conveyance to Lender of the Property by a deed in lieu of
foreclosure; or
(xxi) The release of Borrower from the performance or observance of
any of the agreements, covenants, terms or conditions contained in the Loan
Documents by operation of law.
(d) In the event that Guarantor shall advance or become obligated to pay
any sums under this Guaranty or in the event that for any reason whatsoever
Borrower or any subsequent owner of the Property is now, or shall hereafter
become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums
and of such indebtedness and all interest thereon shall at all times be
subordinate as to lien, time of payment and in all other respects to all sums,
including principal and interest and other amounts, at any time owed to Lender
under the Loan Documents and (ii) Guarantor shall not be entitled to enforce or
receive payment thereof until all such sums owed to Lender have been paid.
Nothing herein contained is intended or shall be construed to give Guarantor any
right of subrogation, contribution or reimbursement in or under the Loan
Documents or any right to participate in any way therein, or in the right, title
or interest of Lender in or to the Property, notwithstanding any payments made
by Guarantor under this Guaranty, all such rights of subrogation, contribution,
reimbursement and participation being hereby expressly waived and released.
SECTION 2. COVENANTS, WARRANTIES AND REPRESENTATIONS
(a) Guarantor hereby represents and warrants to, and covenants and agrees
with, Lender as follows, knowing that Lender is relying hereon in entering into
the Loan and accepting the Loan Documents:
(i) There is no action or proceeding pending or, to the best knowledge
of Guarantor, threatened against Guarantor before any court or administrative
agency and no event has occurred that might result in any material adverse
change in the business or condition of Guarantor or in the property of Guarantor
from the condition of Guarantor as set forth in the most recent financial
statements of Guarantor furnished to and approved by Lender.
(ii) Guarantor has filed all Federal and State income tax returns that
are required to be filed, and has paid all taxes as shown on such returns to the
extent that such taxes have become due.
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(iii) Guarantor is not individually or jointly party to any contract
or agreement that materially and adversely affects its business, property,
assets or financial condition. To the best knowledge of Guarantor, neither the
execution and delivery of this Guaranty nor the fulfillment of and compliance
with the terms and provisions hereof will conflict with, or result in a breach
of, any of the terms, conditions or provisions of any other agreement or
instrument to which Guarantor is now a party or by which Guarantor may be bound,
nor shall the foregoing constitute a default thereunder or result in the
creation of any lien, charge or encumbrance upon any property or assets of
Guarantor.
(iv) Guarantor shall deliver to Lender a copy of any notice of a
default by Guarantor in connection with any loan (other than the Loan) either to
Guarantor or guaranteed by Guarantor, within three (3) business days after
receipt thereof by Guarantor.
(b) Any representation, warranty, covenant, agreement, indemnity and/or
undertaking made in this Guaranty or made in any of the other Loan Documents or
in any certificate or other writing delivered in connection with the Loan shall
be deemed to have been relied upon by Lender (and any assignee or transferee of
Lender).
SECTION 3. REINSTATEMENT OF OBLIGATIONS If at any time all or any part of any
payment made by Guarantor or received by Lender from Guarantor under or with
respect to this Agreement is or must be rescinded or returned for any reason
whatsoever (including, but not limited to, the insolvency, bankruptcy or
reorganization of Guarantor), then the obligations of Guarantor hereunder
shall, to the extent of the payment rescinded or returned, be deemed to have
continued in existence, notwithstanding such previous payment made by
Guarantor, or receipt of payment by Lender, and the obligations of Guarantor
hereunder shall continue to be effective or be reinstated, as the case may be,
as to such payment, all as though such previous payment by Guarantor had never
been made.
SECTION 4. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing, then an
"Event of Default" under this Guaranty shall have occurred and Lender may, at
its option, declare all sums guaranteed hereunder to be and become forthwith due
and payable, under the terms of and with the effect provided in this Guaranty,
regardless of whether (i) a default by Borrower shall have occurred under any of
the Loan Documents or (ii) Lender shall have exercised any of its rights or
remedies under any of the Loan Documents:
(a) If any representation or warranty made by Guarantor herein or in any
writing furnished in connection with or pursuant to this Guaranty shall be false
in any material respect on the date as of which made; or
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(b) If Guarantor defaults in the performance or observance of any
agreement, covenant, term or condition contained in this Guaranty; or
(c) In connection with any loan (other than the Loan) either to Guarantor
or guaranteed by Guarantor, if there is a default beyond any applicable notice
and/or cure period in any financial covenant made by Guarantor.
(d) If Guarantor becomes insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors, shall file
a petition in bankruptcy, shall voluntarily be adjudicated insolvent or bankrupt
or shall admit in writing the inability to pay debts as they mature, shall
petition or apply to any tribunal for or shall consent to or shall not contest
the appointment of a receiver, trustee, custodian or similar officer for
Guarantor for a substantial part of the assets of Guarantor, or shall commence
any case, proceeding or other action under any bankruptcy, reorganization,
arrangement, readjustment or debt, dissolution or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect; or
(e) If a petition is filed or any case, proceeding or other action is
commenced against Guarantor seeking to have an order for relief entered against
it as debtor or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of its debts or other relief under any law relating
to bankruptcy, insolvency, arrangement, reorganization, receivership or other
debtor relief under any law or statute of any jurisdiction, whether now or
hereafter in effect, or a court of competent jurisdiction enters an order for
relief against Guarantor, as debtor, or an order, judgment or decree is entered
appointing, with or without the consent of Guarantor, a receiver, trustee,
custodian or similar officer for Guarantor, or for any substantial part of any
of the properties of Guarantor, and if any such event shall occur, such
petition, case, proceeding, action, order, judgment or decree shall not be
dismissed within sixty (60) days after being commenced; or
(f) If any material adverse change shall occur in the financial condition
of Guarantor from the condition set forth in the most recent financial
statements of Guarantor heretofore delivered to and approved by Lender.
SECTION 5. DELIVERY OF FINANCIAL STATEMENTS Guarantor hereby agrees, as a
material inducement to Lender to make the Loan to Borrower, to furnish to
Lender promptly upon demand by Lender current and dated financial statements,
certified by or on behalf of Guarantor, detailing the assets and liabilities of
Guarantor, in form and substance acceptable to Lender. Guarantor hereby
warrants and represents unto Lender that any and all balance sheets, net worth
statements and other financial data that have heretofore been given or may
hereafter be given to Lender with respect to Guarantor
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did or will at the time of such delivery fairly and accurately present the
financial condition of Guarantor.
SECTION 6. MISCELLANEOUS
(a) Fully Recourse. All of the terms and provisions of this Agreement
are recourse obligations of Guarantor and not restricted by any limitation on
personal liability.
(b) No Subrogation; No Recourse Against Lender. Notwithstanding the
satisfaction by Guarantor of any liability hereunder, Guarantor shall not have
any right of subrogation, contribution, reimbursement or indemnity whatsoever or
any right of recourse to or with respect to the assets or property of Borrower
or to any collateral for the Loan. In connection with the foregoing, Guarantor
expressly waives any and all rights of subrogation to Lender against Borrower,
and Guarantor hereby waives any rights to enforce any remedy that Lender may
have against Borrower and any right to participate in any collateral for the
Loan. In addition to and without in any way limiting the foregoing, Guarantor
hereby subordinates any and all indebtedness of Borrower now or hereafter owed
to Guarantor to all indebtedness of Borrower to Lender, and agrees with Lender
that Guarantor shall not demand or accept any payment of principal or interest
from Borrower, shall not claim any offset or other reduction of Guarantor's
obligations hereunder because of any such indebtedness and shall not take any
action to obtain any of the collateral from the Loan. Further, Guarantor shall
not have any right of recourse against Lender by reason of any action Lender may
take or omit to take under the provisions of this Agreement or under the
provisions of any of the Loan Documents.
(c) Rights Cumulative; Payments. Lender's rights under this Agreement
shall be in addition to all rights of Lender under the Note, the Mortgage and
the other Loan Documents.
(d) Entire Agreement; Amendment; Severability. This Agreement contains
the entire agreement between the parties respecting the matters herein set forth
and supersedes all prior agreements, whether written or oral, between the
parties respecting such matters. Any amendments or modifications hereto, in
order to be effective, shall be in writing and executed by the parties hereto. A
determination that any provision of this Agreement is unenforceable or invalid
shall not affect the enforceability or validity of any other provision, and any
determination that the application of any provision of this Agreement to any
person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to any other
persons or circumstances.
(e) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, EXCEPT
TO THE EXTENT THAT THE APPLICABILITY OF
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ANY OF SUCH LAWS MAY NOW OR HEREAFTER BE PREEMPTED BY FEDERAL LAW, IN WHICH
CASE SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING.
(f) Binding Effect; Waiver of Acceptance. This Agreement shall bind
Guarantor and the heirs, personal representatives, successors and assigns of
Guarantor and shall inure to the benefit of Lender and the officers, directors,
shareholders, agents and employees of Lender and their respective heirs,
personal representatives, successors and assigns. Notwithstanding the
foregoing, Guarantor shall not assign any of its rights or obligations under
this Agreement without the prior written consent of Lender, which consent may be
withheld by Lender in its sole discretion. Guarantor hereby waives any
acceptance of this Agreement by Lender, and this Agreement shall immediately be
binding upon Guarantor.
(g) Notice. All notices, demands, requests or other communications to be
sent by one party to the other hereunder or required by law shall be in writing
and shall be deemed to have been validly given or served by delivery of the same
in person to the intended addressee, or by depositing the same with Federal
Express or another reputable private courier service for next business day
delivery to the intended addressee at its address set forth on the first page of
this Agreement or at such other address as may be designated by such party as
herein provided, or by depositing the same in the United States mail, postage
prepaid, registered or certified mail, return receipt requested, addressed to
the intended addressee at its address set forth on the first page of this
Agreement or at such other address as may be designated by such party as herein
provided. All notices, demands and requests shall be effective upon such
personal delivery, or one (1) business day after being deposited with the
private courier service, or three (3) business days after being deposited in the
United States mail as required above. Rejection or other refusal to accept or
the inability to deliver because of changed address of which no notice was given
as herein required shall be deemed to be receipt of the notice, demand or
request sent. By giving to the other party hereto at least fifteen (15) days'
prior written notice thereof in accordance with the provisions hereof, the
parties hereto shall have the right from time to time to change their respective
addresses and each shall have the right to specify as its address any other
address within the United States of America.
(h) No Waiver; Time of Essence; Business Days. The failure of Lender
to enforce any right or remedy hereunder, or to promptly enforce any such right
or remedy, shall not constitute a waiver thereof nor give rise to any estoppel
against Lender nor excuse Guarantor from its obligations hereunder. Any waiver
of such right or remedy must be in writing and signed by Lender. This Agreement
is subject to enforcement at law or in equity, including actions for damages or
specific performance. Time is of the essence hereof. The term "business day"
as used herein shall mean a weekday, Monday through Friday, except a legal
holiday or a day
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on which banking institutions in New York, New York are authorized by law to be
closed.
(i) Captions for Convenience. The captions and headings of the sections
and paragraphs of this Agreement are for convenience of reference only and shall
not be construed in interpreting the provisions hereof.
(j) Attorneys' Fees. In the event it is necessary for Lender to retain
the services of an attorney or any other consultants in order to enforce this
Agreement, or any portion thereof, Guarantor agrees to pay to Lender any and all
costs and expenses, including, without limitation, reasonable attorneys' fees,
incurred by Lender as a result thereof.
(k) Successive Actions. A separate right of action hereunder shall arise
each time Lender acquires knowledge of any matter indemnified by Guarantor under
this Agreement. Separate and successive actions may be brought hereunder to
enforce any of the provisions hereof at any time and from time to time. No
action hereunder shall preclude any subsequent action, and Guarantor hereby
waives and covenants not to assert any defense in the nature of splitting of
causes of action or merger of judgments.
(l) Reliance. Lender would not make the Loan to Borrower without this
Agreement. Accordingly, Guarantor intentionally and unconditionally enters into
the covenants and agreements as set forth above and understands that, in
reliance upon and in consideration of such covenants and agreements, the Loan
shall be made and, as part and parcel thereof, specific monetary and other
obligations have been, are being and shall be entered into that would not be
made or entered into but for such reliance.
(m) SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(1) GUARANTOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL,
(A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE IN WHICH THE PROPERTY IS
LOCATED OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR
RELATING TO THIS AGREEMENT, (B) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING
IN THE COUNTY AND STATE, IN WHICH THE PROPERTY IS LOCATED, (C) SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND (D) TO THE FULLEST EXTENT PERMITTED BY LAW,
AGREES THAT IT SHALL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM
(BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER TO BRING ANY ACTION, SUIT
OR PROCEEDING IN ANY OTHER FORUM). GUARANTOR FURTHER CONSENTS AND AGREES TO
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT,
ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO
THE GUARANTOR AT THE ADDRESS FOR NOTICES DESCRIBED IN SECTION 6(g) HEREOF, AND
CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID
AND
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EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR
EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
(2) GUARANTOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL,
WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS
AGREEMENT OR ANY CONDUCT, ACT OR OMISSION OF LENDER OR GUARANTOR, OR ANY OF
THEIR DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR
ANY OTHER PERSONS AFFILIATED WITH LENDER OR GUARANTOR, IN EACH OR THE FOREGOING
CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
(n) Waiver by Guarantor. Guarantor covenants and agrees that upon the
commencement of a voluntary or involuntary bankruptcy proceeding by or against
Borrower, Guarantor shall not seek a supplemental stay or otherwise seek,
pursuant to 11 U.S.C. Section 105 or any other provision of the Bankruptcy
Reform Act of 1978, as amended, or any other debtor relief law (whether
statutory, common law, case law, or otherwise) of any jurisdiction whatsoever,
now or hereafter in effect, which may be or become applicable, to stay,
interdict, condition, reduce or inhibit the ability of Lender to enforce any
rights of Lender against Guarantor by virtue of this Agreement or otherwise.
(o) Guarantor hereby agrees and acknowledges that this Guaranty is an
instrument for the payment of money.
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IN WITNESS WHEREOF, Guarantor has executed this Agreement as of the day and
year first written above.
GUARANTOR:
GENERAL HOST CORPORATION,
a New York corporation
By: Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President & Treasurer
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