GUARANTY
WHEREAS, American Golf Corporation, a California corporation
("Assignor"), and Xxxxxxx'x Island Family Golf Centers, Inc., a Delaware
corporation, and Darlington Family Golf Centers, Inc., a Delaware corporation
(together, "Assignee"), are about to execute (i) the Assignment and Assumption
of Concession Licenses dated March 21, 1997 ("Assignment"); and (ii) the Xxxx
of Sale dated March 21, 1997 (together, "Transaction Documents");
WHEREAS, each Assignee is a wholly-owned subsidiary of Family Golf
Centers, Inc., a Delaware corporation ("Guarantor"); and
WHEREAS, Assignor would not execute the Transaction Documents if
Guarantor did not execute and deliver to Assignor this Guaranty.
NOW THEREFORE, for and in consideration of the execution of the
Transaction Documents by Assignor and as a material inducement to Assignor to
execute the Transaction Documents, Guarantor hereby unconditionally and
irrevocably guarantees the full, faithful and prompt performance by Assignee
of each and every one of the terms and provisions of Section 13 of the
Assignment applicable to Assignee, which section is captioned
"Indemnification."
It is specially agreed and understood that (i) the terms of the
Transaction Documents may be modified or changed by written agreement between
Assignor and Assignee, and (ii) the Transaction Documents may be assigned by
Assignor or any assignee of Assignor without consent or notice to Guarantor,
and that this Guaranty shall thereupon and thereafter guarantee the
performance of said Transaction Documents as so modified, changed or assigned.
This Guaranty shall not be released, modified or affected by any
failure or delay by Assignor to enforce any of its rights or remedies under
any of the Transaction Documents, whether pursuant to the terms thereof or at
law or in equity.
No notice of default need be given to Guarantor, it being
specifically agreed and understood that this Guaranty is a continuing
guarantee under which Assignor may proceed forthwith and immediately against
Assignee or against Guarantor for the enforcement of any rights which Assignor
may have as against Assignee pursuant to the terms of Section 13 of the
Assignment. Without limiting the generality of the foregoing, Assignor shall
have the right to proceed against Guarantor hereunder without first proceeding
against Assignee and without previous notice to or demand upon either Assignee
or Guarantor.
Guarantor hereby waives (a) notice of acceptance of this Guaranty,
(b) demand of payment, presentation or protest, (c) all right to assert or
plead any statute of limitations as to or relating to this Guaranty or the
Transaction Documents, (d) any right to require Assignor to proceed against
Assignee or any other person or entity liable to Assignor, (e) any right to
require Assignor to proceed under any other remedy Assignor may have before
proceeding against Guarantor, (g) any right of subrogation.
Guarantor hereby subordinates all existing or future indebtedness of
Assignee to Guarantor to the obligations owed to Assignor under the
Transaction Documents and this Guaranty.
The term "Assignor" as used herein refers to and means American Golf
Corporation, a California corporation, and also any assignees of Assignor, and
also any successor to the interest of Assignor.
The term "Assignee" as used herein refers to and means Xxxxxxx'x
Island Family Golf Centers, Inc., a Delaware corporation, and Darlington
Family Golf Centers, Inc., a Delaware corporation, and also any successor to
the interests of either or both such entities.
In the event Assignor brings any action against Guarantor to enforce
the obligations of Guarantor hereunder, the unsuccessful party in such action
shall pay to the prevailing party all reasonable attorneys' fees and costs
incurred by the prevailing party.
Notwithstanding any provision of this Guaranty to the contrary, this
Guaranty shall be of no further force or effect from and after the date, if
any, that Assignor is formally released pursuant to a release agreement
acceptable to Assignor in Assignor's reasonable discretion from all past,
present and future obligations and liabilities under the Xxxxxxx'x Island
License (as defined in the Assignment) and the Darlington License (as defined
in the Assignment).
"GUARANTOR"
Family Golf Centers, Inc.
a Delaware corporation
Executed at Melville, New York By: _____________________
on March 21, 1997 Its: _______________
Address: 000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
By: _____________________
Its: _______________
