Exhibit 10.10
CORPORATE GUARANTY
Date: December 22, 2003
General Electric Capital Corporation
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
To induce you to enter into, purchase or otherwise acquire that certain
Master Equipment Lease, dated as of the date hereof, by and between The Xxxxxx
Asset Group, LLC, a Delaware limited liability company and Playboy Entertainment
Group, Inc., a Delaware corporation ("Lessee") (such Master Equipment Lease, as
amended, supplemented or otherwise modified from time to time pursuant to the
terms thereof, including without limitation by Equipment Schedule No. 1 thereto,
and together with any other documents or instruments executed by Playboy
Entertainment Group, Inc. in connection therewith or contemplated thereby, the
"Lease"), the undersigned, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, does hereby guarantee to you, your
successors and assigns, the due regular and punctual payment of all of Lessee's
obligations under the Lease, whether such obligations represent principal,
interest, rent, late charges, indemnities, an original balance, an accelerated
balance, liquidated damages, a balance reduced by partial payment, a deficiency
after sale or other disposition of the leased equipment or any other collateral
or security, or any other type of sum of any kind whatsoever that the Lessee may
now or at any time hereafter owe to you thereunder, and does hereby further
guarantee to you, your successors and assigns, the due, regular and punctual
performance of any other duty or obligation of any kind or character whatsoever
that the Lessee may owe to you now or at any time hereafter pursuant to the
Lease, including payment of all losses, costs, attorneys' fees and expenses
payable pursuant to the Lease by reason of Lessee's default or default of the
undersigned (all such payment and performance obligations being collectively
referred to as "Obligations").
This Guaranty is a guaranty of prompt payment and performance (and not
merely a guaranty of collection). Nothing herein shall require you to first seek
or exhaust any remedy against the Lessee, its successors and assigns, or any
other person obligated with respect to the Obligations, or to first foreclose,
exhaust or otherwise proceed against the leased equipment or any other
collateral or security which may be given in connection with the Obligations. It
is agreed that you may, so long as an Event of Default (as defined in the Lease)
exists and is continuing thereunder, make demand upon the undersigned and
receive payment and performance of the Obligations, with or without notice or
demand for payment or performance by the Lessee, its successors or assigns, or
any other person. Suit may be brought and maintained against the undersigned at
your election, without joinder of the Lessee or any other person as parties
thereto.
The undersigned agrees that its obligations under this Guaranty shall be
primary, absolute, continuing and unconditional, irrespective of and unaffected
by any of the following actions or circumstances (regardless of any notice to or
consent of the undersigned): (a) the genuineness, validity, regularity and
enforceability of the Lease or any other document; (b) any extension, renewal,
amendment, change, waiver or other modification of the Lease or any other
document; (c) the absence of, or delay in, any action to enforce the Lease, this
Guaranty or any other documents; (d) your failure or delay in obtaining any
other guaranty of the Obligations (including without limitation, your failure to
obtain the signature of any other guarantor hereunder); (e) the release of,
extension of time for payment or performance by or any other indulgence granted
to the Lessee or any other person with respect to the Obligations by operation
of law or otherwise; (f) the existence, value, condition, loss, subordination or
release (with or without substitution) of or failure to have title to or perfect
and maintain a security interest in, or the time, place and manner of any sale
or other disposition of any of the leased equipment or any other collateral or
security given in connection with the Obligations, or any other impairment
(whether intentional or negligent, by operation of law or otherwise) of the
rights of the undersigned; (g) the Lessee's voluntary or involuntary bankruptcy,
assignment for the benefit of creditors, reorganization, or similar proceedings
affecting the Lessee or any of its assets; or (h) any other action or
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor.
This Guaranty may be terminated upon delivery to you (at your address
shown above) of a written termination notice from the undersigned. However, as
to all Obligations (whether matured, unmatured, absolute, contingent or
otherwise) incurred by the Lessee prior to your receipt of such written
termination notice (and regardless of any subsequent amendment, extension or
other modification which may be made with respect to such Obligations), this
Guaranty shall nevertheless continue and remain undischarged until all such
Obligations are indefeasibly paid and performed in full.
The undersigned agrees that this Guaranty shall remain in full force and
effect or be reinstated (as the case may be) if at any time payment or
performance of any of the Obligations (or any part thereof) is rescinded,
reduced or must otherwise be restored or returned by you, all as though such
payment or performance had not been made. If, by reason of any bankruptcy,
insolvency or similar laws affecting the rights of creditors, you shall be
prohibited from exercising any of your rights or remedies against the Lessee or
any other person or against any property, then, as between you and the
undersigned, such prohibition shall be of no force and effect, and you shall
have the right to make demand upon, and receive payment from, the undersigned of
all amounts and other sums that would be due to you upon an Event of Default
with respect to the Obligations.
Provided the undersigned is no longer required to file regular periodic
reports, forms and other filings with the Securities and Exchange Commission,
including (without limitation) Forms 8Q, 10K and 10Q, the undersigned shall
promptly within 60 days of the end of each fiscal quarter (other than the fourth
fiscal quarter) deliver unaudited quarterly statements and within 120 days after
the end of each fiscal year deliver to you copies of its annual audited
financial statements, including the opinion of the auditor.
The undersigned shall be deemed to be in default hereunder ("Default") if:
(a) it shall fail to perform or observe any covenant, condition or agreement to
be performed or observed by it hereunder and such failure shall continue
unremedied for a period of thirty (30) days after the earlier of the actual
knowledge of Guarantor or written notice thereof to the undersigned by you; or
(b) there is an anticipatory repudiation of its obligations pursuant to this
Guaranty; or (c) any certificate, statement, representation, warranty or audit
contained herein or heretofore or hereafter furnished with respect to this
Guaranty by or on behalf of the undersigned proving to have been false in any
material respect at the time as of which the facts therein set forth were stated
or certified, or having omitted any substantial contingent or unliquidated
liability or claim against it.
Upon a Default hereunder, you may, at your option, declare this Guaranty
to be in default by written notice to the undersigned (without election of
remedies), and at any time thereafter, may do any one or more of the following,
all of which are hereby authorized by the undersigned:
A. declare the Lease to be in default and thereafter xxx for and recover
all liquidated damages, accelerated rentals and/or other sums otherwise
recoverable from Lessee thereunder; and/or
B. xxx for and recover all damages then or thereafter incurred by you
as a result of such Default;
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and/or
C. seek specific performance of the obligations of the undersigned
hereunder.
In addition, the undersigned shall be liable for all reasonable attorneys'
fees and other costs and expenses incurred by reason of any Default or the
exercise of your remedies hereunder and/or under the Lease. No right or remedy
referred to herein is intended to be exclusive, but each shall be cumulative,
and shall be in addition to any other remedy referred to above or otherwise
available at law or in equity, and may be exercised concurrently or separately
from time to time.
Notice of acceptance of this Guaranty and of any default by the Lessee or
any other person is hereby waived. Presentment, protest, demand, and notice of
protest, demand and dishonor of any of the Obligations, and the exercise of
possessory, collection or other remedies for the Obligations, are hereby waived.
The undersigned warrants that it has adequate means to obtain from the Lessee on
a continuing basis financial data and other information regarding the Lessee and
is not relying upon you to provide any such data or other information. Without
limiting the foregoing, notice of adverse change in the Lessee's financial
condition or of any other fact that might materially increase the risk of the
undersigned is also waived. All settlements, compromises, accounts stated and
agreed balances made in good faith between the Lessee, its successors or
assigns, and you shall be binding upon and shall not affect the liability of the
undersigned.
Payment of all amounts now or hereafter owed to the undersigned by the
Lessee or any other obliger for any of the Obligations is hereby subordinated in
right of payment to the indefeasible payment in full to you of all Obligations
and is hereby assigned to you as security therefore. The undersigned hereby
irrevocably and unconditionally waives and relinquishes, for so long as this
Guaranty shall be in effect, all statutory, contractual, common law, equitable
and all other claims against the Lessee and any other obliger with respect to
any of the Obligations, or any collateral therefore, or any other assets of the
Lessee or any such other obliger, for subrogation, reimbursement, exoneration,
contribution, indemnification, setoff or other recourse in respect of sums paid
of payable to you by the undersigned hereunder, and the undersigned hereby
further irrevocably and unconditionally waives and relinquishes, for so long as
this Guaranty shall be in effect, any and all other benefits which it might
otherwise directly or indirectly receive or be entitled to receive by reason of
any amounts paid by, or collected or due from, it, the Lessee or any other
obliger for any of the Obligations, or realized from any of their respective
assets with respect thereto.
THE UNDERSIGNED HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, ANY OF THE RELATED
DOCUMENTS, ANY DEALINGS BETWEEN US RELATING TO THE SUBJECT MATTER HEREOF OR
THEREOF, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN US WITH
RESPECT THERETO. The scope of this waiver is intended to be all encompassing of
any and all disputes that may be filed in any court (including, without
limitation, contract claims, tort claims, breach of duty claims, and all other
common law and statutory claims). THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY, THE
OBLIGATIONS GUARANTEED HEREBY, OR ANY RELATED DOCUMENTS. In the event of
litigation this Guaranty may be filed as a written consent to a trial by the
court.
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As used in this Guaranty, the word "person" shall include any individual,
corporation, limited liability company, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, or any government or
any political subdivision thereof.
This Guaranty is intended by the parties as a final expression of the
guaranty of the undersigned and is also intended as a complete and exclusive
statement of the terms thereof. No course of dealing, course of performance or
trade usage, nor any paid evidence of any kind, shall be used to supplement or
modify any of the terms hereof. There are no conditions to the full
effectiveness of this Guaranty. This Guaranty and each of its provisions may
only be waived, modified, varied, released, terminated or surrendered, in whole
or in part, by a duly authorized written instrument signed by us and by you. No
failure by you to exercise your rights hereunder shall give rise to any estoppel
against you, or excuse the undersigned from performing hereunder. Your waiver of
any right to demand performance hereunder shall not be a waiver of any
subsequent or other right to demand performance hereunder.
This Guaranty shall bind the undersigned's successors and assigns and the
benefits thereof shall extend to and include your successors and assigns.
THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF ILLINOIS (WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE. The parties agree that any action or proceeding arising out of or
relating to this Agreement may be commenced in the United States District Court
for the Northern District of Illinois. If any provisions of this Guaranty are in
conflict with any applicable statute, rule or law, then such provisions shall be
deemed null and void to the extent that they may conflict therewith, but without
invalidating any other provisions hereof.
All notices required to be given hereunder shall be deemed adequately
given if sent by overnight courier to the addressee at its address stated
herein, or at such other place as such addressee may have designated in writing.
Any provision of this Agreement, which is prohibited or unenforceable in
any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Each signatory on behalf of a corporate guarantor warrants that he had
authority to sign on behalf of such corporation and by so signing, to bind said
guarantor corporation hereunder.
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IN WITNESS WHEREOF, this Guaranty is executed the day and year above
written.
ATTEST: Playboy Enterprises, Inc.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
------------------------------- ------------------------------------
Title: Secretary/Assistant Secretary Title: SVP, Treasurer and Asst. Secretary
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Address: 000 Xxxxx Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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CERTIFICATION AND REPRESENTATION BY SIGNING OFFICERS
We, the undersigned, Xxxxxx Xxxxxxx and Xxxxxx X. Xxxxxxxx being the
Executive Vice President and Senior Vice President of Playboy Enterprises, Inc.,
the corporation which executed the Guaranty attached hereto, hereby jointly and
severally certify and represent to General Electric Capital Corporation that
each of the undersigned executed the Guaranty for and on behalf of said
corporation and that in so executing said instrument the undersigned were duly
authorized to do so in their named capacity as officers and by so executing to
hereby bind said guarantor corporation to the terms of said instrument as
therein set forth.
/s/ Xxxxxx Xxxxxxx (L.S.) /s/ Xxxxxx X. Xxxxxxxx (L.S.)
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Dated: 12/22 , 2003 Dated: 12/22 , 2003
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