GUARANTY
MERIDIAN LEASING INC.
Meridian
GUARANTY
Master Lease Agreement No. 01618
In order to induce MERIDIAN LEASING INC. ("Lessor") at its sole
discretion to enter into one or more Master Lease Agreements, and any
and all Schedules thereto now existing or hereafter executed, with
XXXXXXXX'X INC. OF NEW YORK, a New York corporation ("Lessee"), each
of the undersigned guarantors (collectively, the "Guarantors"),
intending to be legally bound, hereby warrants and guarantees,
unconditionally and absolutely, the prompt and full payment to Lessor
and performance when due of nil rent obligations, indebtedness and
liabilities of any kind and description, and the timely and faithful
performance of all other duties, obligations and responsibilities, of
Lessee to Lessor, howsoever created or incurred, whether now existing
or hereafter arising, due or to become due, absolute or contingent,
primary or secondary, joint or several or both, direct or indirect,
secured or unsecured, regardless of how long before or after the date
hereof such obligations may have been or will be incurred, and whether
or not Guarantors, or any of them, will not have received actual
notice thereof, together with all expenses of obtaining or endeavoring
to obtain payment or performance thereof or security therefore, or of
enforcing this Guaranty, including attorneys' fees and other legal
expenses (all of the foregoing hereinafter being referred to
collectively as the "Obligations"). This Guaranty is unlimited in
amount and may be relied upon hereafter unless notice of revocation is
provided as required hereunder. This Guaranty is a continuing one and
will be effective and binding upon the Guarantors regardless of how
long before or after the date hereof any of the Obligations are
incurred.
SECTION 1. GUARANTY OF PAYMENT.
This Guaranty is a guaranty of payment and not a guaranty of
collection and may be enforced by Lessor without first making demand
upon or proceeding against Lessee or any other person liable upon any
Obligation and without first resorting to any security or other
property or invoking any other available rights or remedies, and this
Guaranty will continue until it is revoked by written notice given by
the Guarantor and actually received by Lessor. No such notice or
revocation will in any manner affect the operation and effect of this
Guaranty as to any Obligation arising or existing, whether or not
contingently, prior to the receipt of such notice by a responsible
officer of Lessor, or as to any Obligations arising thereafter created
pursuant to a commitment of Lessor made prior to the receipt of such
notice, and as to all such Obligations this Guaranty will remain in
full force and effect.
SECTION 2. UNCONDITIONAL.
Each Guarantor agrees that its or his or her liability hereunder
is absolute, unconditional and continuing, and that, without notice to
such or any other Guarantor and without releasing or affecting the
liability of any Guarantor to any extent, Lessor may extend, renew,
modify, release, surrender, exchange, compromise or settle, or waive
any term of, any Obligation, may elect not to enforce any right or to
forego any remedy of Lessor with respect to any Obligation or any
security held therefore or any other guaranty thereof, and may
exchange, release or surrender any such security or other guaranty.
Notice of the acceptance of this Guaranty and of the creation of the
Obligation or of any default thereon, as well as all demand, protest,
presentment for acceptance or payment, or notice of dishonor or of
protest with respect to the Obligations, are hereby waived. The
liabilities of the Guarantors hereunder will not be affected by (a)
any failure to retain or preserve or any lack of prior enforcement of
any rights against any person or persons (including without limitation
Lessee or any of the Guarantors or any other accommodation party) or
any property, (b) the invalidity of any such rights which may be
attempted to be obtained or enforced, (c) any delay in enforcing or
failure to enforce any such rights, even if such rights are thereby
lost or (d) any delay in making demand on Lessee, any one or more of
the Guarantors or any other accommodation party for performance or
payment of the Obligation.
SECTION 3. DEFAULT.
If an Obligation is not promptly and fully paid or performed, or
if any Guarantor or Lessee shall die or be dissolved, or if all or
substantially all of the assets of any Guarantor or Lessee are sold or
otherwise transferred, or proceedings in the nature of insolvency,
receivership, bankruptcy or reorganization will be commenced with
respect to Lessee or any Guarantor or if Lessee or any Guarantor will
make an assignment for the benefit of creditors or will be the subject
of a receiver for all or any part of its property, or if any judgment
will be entered against Lessee or any Guarantor and will not have been
paid or bonded within ten (10) days, or any levy, writ of attachment,
execution or other process will issue against any property of Lessee
or any Guarantor, or if Lessee or any Guarantor will become insolvent
or unable to pay its or his or her debts as they mature, or if the
financial condition of Lessee or any Guarantor will change such that,
in the judgment of Lessor, Lessor's risk is materially increased, then
and in any such event all of the Obligations will forthwith become and
be immediately due and payable by the Guarantors and each of them all
without any demand or notice whatsoever.
In the event of any default on the part of any Guarantor in
respect of any of the Obligations, Lessor may, at its option and
without notice to any other Guarantor, exercise as to any security
held for this Guaranty all of the rights and remedies of a secured
creditor under the Uniform Commercial Code as in effect in
Pennsylvania and, without limitation, may apply the proceeds of any
sale or other disposition of any collateral, and any other funds
whatsoever in Lessor's hands, to the payment or other satisfaction of
any one or more of the Obligations (after deducting all costs,
attorneys' fees and other expenses incurred in the realization on or
perfection or protection of such security) in such order as Lessor may
elect, without any duty to marshal any such property in favor of any
Guarantor or other person, all without releasing any Guarantor from
Liability to pay any deficiency remaining unpaid after such
application. So long as any Obligation has not been paid in full, no
payment by any Guarantor pursuant to any provision hereof will entitle
such (guarantor, by subrogation to Lessor's rights or otherwise, to
any payment by or out of the property of Lessee.
SECTION 4. SECURITY.
As security for each of the Obligations and its or his or leer
liability hereunder in respect thereof, each Guarantor hereby assigns
and pledges to Lessor and grants to Lessor a general continuing lien
upon, security interest in and right of offset against all monies,
deposits or other claims and property of such Guarantor, or in which
such Guarantor may have any interest, which may be in the possession
of Lessor in any capacity whatsoever.
SECTION 5. CONFESSION OF JUDGMENT.
Each Guarantor hereby irrevocably authorizes, appoints and
empowers any attorney of any court of record, upon any default
hereunder or by the Lessee with respect to any Obligations to appear
for and confess judgment against such Guarantor or against any one or
more of the Guarantors, jointly or severally, for all or any portion
of the unpaid amount of the Obligations, as evidenced by an affidavit
signed by an officer of Lessor setting forth the amount or amounts
then due, plus attorneys' fees of 15% of the amount due, but not less
than $500, and costs of suit, with release of errors and without right
of appeal. If a copy hereof, verified by Lessor, will have been filed
in any such proceeding, it will not be necessary to file the original
hereof as a warrant of attorney, and the original or any copy hereof
will be a good and sufficient warrant of attorney. Each Guarantor
hereby waives the right to stay any execution and the benefits of all
exemption laws now or hereafter in effect. No single exercise of the
foregoing warrant and power to confess judgment will be deemed to
exhaust the power, whether or not such exercise will be held by any
court to be invalid, voidable or void, but the power will continue
undiminished and may be exercised from time to time, and
contemporaneously in more than one jurisdiction, as often as Lessor
will elect until all the Obligations have been paid in full.
SECTION 6. LEGAL CONSTRUCTION AND JURISDICTION.
All issues arising hereunder will be governed by the laws of
Pennsylvania. Each Guarantor consents to the Jurisdiction of the
courts of Pennsylvania and the Federal District Court for the Eastern
District of Pennsylvania in any action or proceeding which may be
brought against it or him or her, under or in connection with this
Guaranty or any Obligation or otherwise, or to enforce any agreement
contained herein or in any such Obligation, and in the event any such
action or proceeding will be brought against, it, such Guarantor
agrees not to raise any objection to such jurisdiction or to the
laying of venue in Berks County, Pennsylvania. Each Guarantor agrees
that service of process in any such action or proceeding may be duly
brought upon it or him by her by service in accordance with applicable
court rules or with the provisions of the Uniform Interstate and
International Procedure Act.
SECTION 7. MISCELLANEOUS.
This Guaranty will be binding upon the Guarantors and each of
them and their respective heirs, executors, administrators, personal
representatives, successors and assigns, and, if executed by more than
one party, will be their joint and several obligation and will not be
revoked or impaired as to any of them by the death or dissolution of
any of them or by any release or revocation as to any of them. This
Guaranty will inure to the benefit of Lessor and its successors and
assigns and will he construed liberally in favor of Lessor for its
benefit and protection, the Guarantors acknowledging that this
Guaranty has been a material inducement to Lessor to extend lease
accommodations to or for the account of Lessee. As used herein, words
of any gender will include those of any other gender, and the singular
will include the plural and vice versa, whenever the same is necessary
to give a fair and meaningful construction to this instrument. A
subsequent guaranty in favor of Lessor by any Guarantor by any other
guarantor of any of the Obligations will not be deemed to be in lieu
of or to supersede or terminate this Guaranty but will be construed as
an additional or supplemental guaranty unless expressly provided to
the contrary therein, and in the event any Guarantor or other
guarantor has given to Lessor a previous guaranty or guaranties, this
Guaranty will be construed to be an additional or supplemental
guaranty, and not to be in lieu of or to terminate such previous
guaranty or guaranties.
SECTION 8. ENTIRE AGREEMENT.
No waiver by Lessor of any of its rights hereunder nor any
modification hereof will be effective unless in writing signed by an
authorized officer of Lessor, and any such waivers will extend only to
the specific instance involved and for the specific purpose stated and
will not impair any other right of Lessor. Although referred to as a
Guaranty, this instrument is intended to be a contract of suretyship,
upon which each Guarantor intends to be legally bound, jointly and
severally with the other Guarantors, if any.
Signed, sealed and delivered by the undersigned Guarantors under
due authorization on the date hereafter Indicated.
Commonwealth of Pennsylvania Name: Xxxxxxxx'x, Inc.
----------------
(Guarantor)
COUNTY OF Xxxxxxxxxx Signature: /s/ Xxxxxx X. Xxxxxxx
---------------------
Title: Executive Vice President
------------------------
On the 29th day of November, 95, before me, the subscriber, a
notary public for the State and County above, personally appeared the
above named Xxxxxx X. Xxxxxxx and in due form of law acknowledged the
within and foregoing Guaranty and that (he) (she) (they) executed the
same for the purposes contained herein.
(000) 000-0000 Date: November 29, 1995
-------------- -------------------------
Phone Number
/s/ Xxxxxx Xxxx Witness: /s/ Xxxxxxx Xxxxx
--------------- --------------------------
Notary Public
Date: November 29, 1995
------------------------
