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EXHIBIT 10.10
GUARANTY AGREEMENT
WHEREAS, Candlewood Wichita Northeast, L.L.C., a Kansas limited liability
company ("Borrower"), is or may become indebted to NationsBank of Texas, N.A., a
national banking association ("Lender"), and Lender is not willing to forbear or
to extend credit to Borrower without this Guaranty Agreement (this "Guaranty");
and
WHEREAS, unless defined herein or indicated otherwise, all capitalized
terms herein are defined in that certain Term Loan Agreement (as amended from
time to time, the "Loan Agreement") dated October 15, 1996, by and between
Lender and Borrower, and are used herein as so defined.
THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and as
a material inducement to Lender to extend credit to Borrower, the undersigned,
Candlewood Hotel Company, Inc., a Delaware corporation ("Guarantor"), hereby
guarantees to Lender the prompt and full payment and performance of the
indebtedness and obligations described below in this Guaranty (collectively
called the "Guaranteed Obligation"), this Guaranty being upon the following
terms and conditions:
1. Guaranty of Payment; Limitation of Liability for Principal Payment. Guarantor
hereby unconditionally guarantees to Lender the payment, as and when the same
shall be due and payable, whether by lapse of time, by acceleration of maturity
or otherwise, and at all times thereafter, of all principal, interest, fees,
costs, expenses, indemnification indebtedness (including, without limitation,
indebtedness arising pursuant to the indemnities contained in Section 6.21 of
the Loan Agreement) and other sums of money now or hereafter due and owing
pursuant to the terms of that certain Promissory Note (the "Note") of even date
with the Loan Agreement, executed by Borrower payable to the order of Lender in
the principal face amount of Three Million and No/100 Dollars ($3,000,000.00),
or pursuant to the terms of the Loan Agreement, the Mortgage or any other of the
Loan Documents now or hereafter existing, and all renewals, extensions,
refinancings, modifications or amendments of such indebtedness or any part
thereof and any other obligations at any time owing, whether now existing or
hereafter arising, of any Future Borrower to Lender in connection with any
Future Loan (herein collectively called the "Indebtedness"). This Guaranty
covers the Indebtedness whether presently outstanding or arising subsequent to
the date hereof including all amounts advanced by Lender in stages or
installments. The guaranty of Guarantor as set forth in this Section is a
guaranty of payment and not of collection.
2. Guaranty of Performance. Guarantor additionally hereby unconditionally
guarantees to Lender the timely performance of all other obligations of Borrower
under all of the Loan Documents.
3. Primary Liability of Guarantor. This Guaranty is an absolute, irrevocable and
unconditional guaranty of payment and performance. In the event of default by
Borrower in payment or performance of the Guaranteed Obligation, or any part
thereof, when such indebtedness or performance becomes due, either by its terms
or as the result of the exercise of any power to accelerate, Guarantor shall, on
demand and without presentment, protest, notice of protest, further notice of
nonpayment or of dishonor or of default or nonperformance, or notice of
acceleration or of intent to accelerate, or any other notice whatsoever, without
any notice having been given to Guarantor previous to such demand of the
acceptance by Lender of this Guaranty, and without any notice having been given
to Guarantor previous to such demand of the creating or incurring of such
indebtedness or of such obligation to perform, pay the amount pursuant to
Section 1 hereof to Lender or perform or observe the agreement, covenant, term
or condition, as the case may be, and it shall not be necessary for Lender, in
order to enforce such payment or performance by Guarantor, first to institute
suit or exhaust its remedies against Borrower or others liable on such
indebtedness or for such performance, to enforce its rights against any security
which shall ever have been given to secure such indebtedness or performance, to
join Borrower or any others liable on the Guaranteed Obligation in any action to
enforce this Guaranty, or to resort to any other means of obtaining payment or
performance
GUARANTY AGREEMENT (CANDLEWOOD WICHITA NORTHEAST-CANDLEWOOD, INC.) PAGE 1
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of the Guaranteed Obligation. Suit may be brought or demand may be made against
all parties who have signed this Guaranty, or against any one or more of them,
separately or together, without impairing the rights of Lender against any other
party hereto. At any time Lender is entitled to exercise its remedies hereunder,
it may in its discretion elect to demand payment or performance. If Lender
elects to demand performance, it shall at all times thereafter have the right to
demand payment until all of the Indebtedness has been paid in full. If Lender
elects to demand payment, it shall at all times thereafter have the right to
demand performance until all of the Indebtedness has been paid in full.
4. Certain Agreements and Waivers by Guarantor. Guarantor hereby agrees that
neither Lender's rights and remedies nor Guarantor's obligations under the terms
of this Guaranty shall be released, diminished, impaired, reduced or affected by
any one or more of the following:
(a) any limitation of liability or recourse in any other Loan
Document;
(b) the taking or accepting of any other security or guaranty for,
or right of recourse with respect to, any or all of the Guaranteed Obligation;
(c) any release, surrender, exchange, subordination, deterioration,
waste, impairment or loss of, or any failure to create or perfect, any lien or
security interest with respect to any security at any time existing or
purported, believed or expected to exist in connection with any or all of the
Guaranteed Obligation;
(d) any partial release of the liability of Guarantor hereunder, or
if there is more than one person signing this Guaranty, the complete or partial
release of any one or more of them hereunder;
(e) the death, insolvency, bankruptcy, disability, dissolution,
liquidation, termination, receivership, reorganization, change of form and/or
name, structure or ownership, sale of all assets, or lack of corporate,
partnership or other power of Borrower, any of the undersigned, or any party at
any time liable for the payment or performance of any or all of the Guaranteed
Obligation, whether now existing or hereafter occurring;
(f) renewal, extension, modification or rearrangement of the payment
or performance of any or all of the Guaranteed Obligation, either with or
without notice to or consent of Guarantor, or any adjustment, indulgence,
forbearance, or compromise that may be granted or given by Lender to Borrower or
Guarantor from time to time;
(g) any neglect, delay, omission, failure, or refusal of Lender to
take or prosecute any action for the collection or enforcement of any of the
Guaranteed Obligation or to foreclose or take or prosecute any action to
foreclose upon any security therefor or to take or prosecute any action in
connection with any Loan Document;
(h) any failure of Lender to notify Guarantor of any creation,
renewal, extension, rearrangement, modification or assignment of the Guaranteed
Obligation or any part thereof, or of any Loan Document, or of any release of or
change in any security or of any other action taken or refrained from being
taken by Lender against Borrower or any security or other recourse or of any new
agreement between Lender and Borrower, it being understood that Lender shall not
be required to give Guarantor any notice of any kind under any circumstances
with respect to or in connection with the Guaranteed Obligation;
(i) the unenforceability of all or any part of the Guaranteed
Obligation against Borrower, whether because the Guaranteed Obligation exceeds
the amount permitted by law or violates any usury law, the act of creating the
Guaranteed Obligation, or any part thereof, is ultra xxxxx, the officers or
persons creating same acted in excess of their authority, Borrower has any valid
defense, claim or offset with respect thereto, or otherwise, it being agreed
that Guarantor shall remain liable hereon regardless of whether Borrower or any
other person be found not liable on the Guaranteed Obligation, or any part
thereof, for any reason; or
GUARANTY AGREEMENT (CANDLEWOOD WICHITA NORTHEAST-CANDLEWOOD, INC.) PAGE 2
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(j) any payment by Borrower to Lender is held to constitute a
preference under the bankruptcy laws or if for any other reason Lender is
required to refund such payment or pay the amount thereof to someone else.
It is the intent of Guarantor and Lender that the obligations and liabilities of
Guarantor hereunder are absolute and unconditional under any and all
circumstances and that until the Guaranteed Obligation or all amounts required
to be paid by Guarantor under this Guaranty are fully and finally paid and
performed, such obligations and liabilities shall not be discharged or released,
in whole or in part, by any act or occurrence which might, but for the
provisions of this Guaranty, be deemed a legal or equitable discharge or release
of a guarantor.
5. Subordination; Subrogation. If, for any reason whatsoever, Borrower is now or
hereafter becomes indebted to Guarantor:
(a) such indebtedness and all interest thereon and all liens,
security interests and rights now or hereafter existing with respect to property
of Borrower securing same shall, at all times, be subordinate in all respects to
the Guaranteed Obligation and to all liens, security interests and rights now or
hereafter existing to secure the Guaranteed Obligation. Notwithstanding anything
to the contrary contained in this Guaranty or any payments made by any party
hereunder, Guarantor hereby permanently and irrevocably waives any right of
subrogation in or under any of the Loan Documents or to participate in any way
therein, or in any right, title or interest in and to any security or right of
recourse for the Guaranteed Obligation;
(b) after the occurrence of a default (whether or not declared)
under any of the Loan Documents, Guarantor shall not be entitled to enforce or
receive payment, directly or indirectly, of any such indebtedness of Borrower to
Guarantor until the Guaranteed Obligation has been fully and finally paid and
performed;
(c) Guarantor hereby assigns to Lender and grants to Lender a
security interest, as security for the Guaranteed Obligation, in all such
indebtedness and security therefor, if any, of Borrower to Guarantor now
existing or hereafter arising, including any dividends and payments pursuant to
debtor relief or insolvency proceedings referred to below. In the event of
receivership, bankruptcy, reorganization, arrangement or other debtor relief or
insolvency proceedings involving Borrower as debtor, Lender shall have the right
to prove its claim in any such proceeding so as to establish its rights
hereunder and shall have the right to receive directly from the receiver,
trustee or other custodian (whether or not a default shall have occurred or be
continuing under any of the Loan Documents), dividends and payments which are
payable upon any obligation of Borrower to Guarantor now existing or hereafter
arising, and to have all benefits of any security therefor, until the Guaranteed
Obligation has been fully and finally paid and performed. If, notwithstanding
the foregoing provisions, Guarantor should receive any payment, claim or
distribution which is prohibited as provided above in this Section 5, Guarantor
shall pay the same to Lender immediately, Guarantor hereby agreeing that it
shall receive the payment, claim or distribution in trust for Lender and shall
have absolutely no dominion over the same except to pay it immediately to
Lender; and
(d) Guarantor shall promptly upon request of Lender from time to
time execute such documents and perform such acts as Lender may require to
evidence and perfect its interest and to permit or facilitate exercise of it
rights under this Section , including but not limited to execution and delivery
of financing statements, proofs of claim, further assignments and security
agreements, and delivery to Lender of any promissory notes or other instruments
evidencing indebtedness of Borrower to Guarantor. All promissory notes, accounts
receivable ledgers or other evidences, now or hereafter held by Guarantor, of
obligations of Borrower to Guarantor shall contain a specific written notice
thereon that the indebtedness evidenced thereby is subordinated under and is
subject to the terms of this Guaranty.
Nothing herein contained shall operate as a release or discharge, in whole or in
part, of any claim of Guarantor against Borrower, by subrogation or otherwise,
by reason of any act done or payment made by Guarantor pursuant to the
provisions of this Guaranty; but all such claims, including claims for any
indebtedness of Borrower to Guarantor, whether now existing or
GUARANTY AGREEMENT (CANDLEWOOD WICHITA NORTHEAST-CANDLEWOOD, INC.) PAGE 3
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hereafter arising, shall be subordinate to the Guaranteed Obligation and the
liens, security interests and rights of Lender under the Loan Documents.
6. Other Liability of Guarantor or Borrower. If Guarantor becomes liable for any
indebtedness owing by Borrower to Lender, by endorsement or otherwise, other
than under this Guaranty, such liability shall not be in any manner impaired or
affected hereby, and the rights of Lender hereunder shall be cumulative of any
and all other rights that Lender may ever have against Guarantor. If Borrower is
or becomes indebted to Lender for other than the Indebtedness, any payment
received or recovery realized upon any indebtedness of Borrower to Lender may,
except to the extent paid by Guarantor on the Indebtedness or specifically
required by law or agreement of Lender to be applied to the Indebtedness, in
Lender's sole discretion be applied upon indebtedness of Borrower to Lender
other than the Indebtedness.
7. Lender Assigns. This Guaranty is for the benefit of Lender and Lender's
successors and assigns, and in the event of an assignment of the Indebtedness or
any part thereof, the rights and benefits hereunder, to the extent applicable to
the Indebtedness so assigned, may be transferred with such Indebtedness.
Guarantor waives notice of any transfer or assignment of the Indebtedness, or
any part thereof, and agrees that failure to give notice will not affect the
liabilities of Guarantor hereunder.
8. Binding Effect. This Guaranty is binding not only on Guarantor, but on
Guarantor's respective estates, heirs, personal representatives, successors and
assigns. Upon the death of any of the undersigned, this Guaranty shall continue
against his estate and against all survivors among the undersigned as to all of
the Guaranteed Obligations, including that portion incurred or arising after
such death. If this Guaranty is signed by more than one person, then all of the
obligations of Guarantor arising herein shall be jointly and severally binding
on each of the undersigned, and their respective heirs, personal
representatives, successors and assigns, and the term "Guarantor" shall mean all
such persons and each of them individually. Words importing persons herein shall
include firms, associations, partnerships (including limited partnerships),
joint ventures, trusts, corporations and other legal entities, including public
or governmental bodies, agencies or instrumentalities, as well as natural
persons.
9. Governing Law; Forum. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND APPLICABLE UNITED STATES
FEDERAL LAW, AND IS INTENDED TO BE PERFORMED IN ACCORDANCE WITH, AND ONLY TO THE
EXTENT PERMITTED BY, SUCH LAWS. ALL OBLIGATIONS OF GUARANTOR HEREUNDER ARE
PAYABLE AND PERFORMABLE AT THE PLACE WHERE THE GUARANTEED OBLIGATION IS PAYABLE
AND PERFORMABLE. GUARANTOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY FOR GUARANTOR AND IN RESPECT OF GUARANTOR'S PROPERTY TO THE
NON-EXCLUSIVE JURISDICTION OF ANY TEXAS STATE COURT, OR ANY UNITED STATES
FEDERAL COURT, SITTING IN THE CITY OF DALLAS, TEXAS, OVER ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE INDEBTEDNESS.
GUARANTOR HEREBY AGREES AND CONSENTS THAT, IN ADDITION TO ANY METHODS OF SERVICE
OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH
SUIT, ACTION OR PROCEEDING IN ANY TEXAS STATE COURT, OR ANY UNITED STATES
FEDERAL COURT, SITTING IN THE CITY OF DALLAS, TEXAS MAY BE MADE BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO GUARANTOR AT GUARANTOR'S
ADDRESS STATED IN THIS GUARANTY, OR AT A SUBSEQUENT ADDRESS OF WHICH LENDER
RECEIVED ACTUAL NOTICE FROM GUARANTOR IN ACCORDANCE WITH THIS GUARANTY, AND
SERVICE SO MADE SHALL BE COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN
SO MAILED.
10. Invalid Provisions. If any provision of this Guaranty or the application
thereof to any person or circumstance shall, for any reason and to any extent,
be invalid or unenforceable, neither the remainder of this Guaranty nor the
application of such provision to any other person or circumstance shall be
affected thereby, but rather the same shall be enforced to the greatest extent
permitted by law.
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11. Attorneys Fees and Costs of Collection. Guarantor shall pay on demand the
reasonable attorney's fees and all other costs and expenses which may be
incurred by Lender in the enforcement of or preservation of Lender's rights
under this Guaranty, which covenant shall survive any payment or discharge in
full of the Indebtedness.
12. Payments. All sums payable under this Guaranty shall be paid in lawful money
of the United States of America which at the time of payment is legal tender for
the payment of public and private debts.
13. Controlling Agreement. It is not the intention of Lender or Guarantor to
obligate Guarantor to pay interest in excess of that legally permitted to be
paid by Guarantor under applicable law. Should it be determined that any portion
of the Guaranteed Obligation constitutes interest in excess of the maximum
amount of interest which Guarantor (in such capacity) may lawfully be required
to pay under applicable law, the obligation of Guarantor to pay such interest
shall automatically be limited to the payment thereof in the maximum amount so
permitted under applicable law. The provisions of this Section shall override
and control all other provisions of this Guaranty and of any other agreement
between Guarantor and Lender.
14. Warranties and Representations of Guarantor. Guarantor hereby represents and
warrants that (a) Guarantor will be immediately prior to the registered offering
of the sale of its shares of stock under the Securities Act of 1933, as amended,
the owner of a direct or indirect interest in, and is now under common ownership
with, Borrower and that this Guaranty may reasonably be expected to benefit
Guarantor, in an amount not less than the amount guaranteed hereunder; (b)
Guarantor is a corporation, duly organized and validly existing and in good
standing under the laws of the state of its organization; (c) this Guaranty is
duly authorized, is valid and is binding upon Guarantor; (d) Guarantor is not,
and the execution, delivery and performance by Guarantor of this Guaranty will
not cause Guarantor to be, in violation of or in default with respect to any law
or in default (or provide cause for acceleration of indebtedness) under any
agreement or restriction by which Guarantor is bound or affected; (e) except as
expressly disclosed in writing to Lender, there is no action, suit or proceeding
pending or to the knowledge of Guarantor threatened before or by any court or
governmental authority against or affecting Guarantor which constitutes a
Material Adverse Effect; (f) all financial statements and information heretofore
furnished to Lender by Guarantor do, and all financial statements and
information hereafter furnished to Lender by Guarantor will, fully and
accurately in all material respects present the financial condition of Guarantor
as of the dates therein, and, since the date of the most recent financial
statements of Guarantor heretofore furnished to Lender, no Material Adverse
Effect has occurred with respect to the financial condition of Guarantor, nor,
except as heretofore disclosed in writing to Lender, has Guarantor incurred any
material liability, direct or indirect, fixed or contingent; (g) after giving
effect to this Guaranty, Guarantor is solvent; (h) Lender has no duty at any
time to investigate or inform Guarantor of the financial or business condition
or affairs of Borrower, or any change therein; and (i) Guarantor acknowledges
and agrees that Guarantor may be required to pay and perform the Guaranteed
Obligation in full, subject to Section 1 hereof, without assistance or support
from Borrower or any other party. Guarantor's representations and warranties are
a material inducement to Lender to enter into the other Loan Documents and shall
survive the execution hereof and any bankruptcy, foreclosure, transfer of
security or other event affecting Borrower, Guarantor, or any security for the
Indebtedness.
15. Notices. All notices, requests, consents, demands and other communications
required or which any party desires to give hereunder shall be in writing and
shall be deemed sufficiently given or furnished if delivered by personal
delivery, by telegram, telex, or facsimile, by expedited delivery service with
proof of delivery, or by registered or certified United States mail, postage
prepaid, at the addresses specified at the end of this Guaranty (unless changed
by similar notice in writing given by the particular party whose address is to
be changed). Any such notice or communication shall be deemed to have been given
either at the time of personal delivery or, in the case of delivery service or
mail, as of the date of first attempted delivery at the address and in the
manner provided herein, or, in the case of telegram, telex, or facsimile, upon
receipt. Notwithstanding the foregoing, no notice of change of address shall be
effective except upon receipt. This Section shall not be construed in any way to
affect or impair any waiver of notice or demand provided in this Guaranty or in
any other Loan Document or to require giving of notice or demand to or upon any
person in any situation or for any reason.
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16. Cumulative Rights, etc. The exercise by Lender of any right or remedy
hereunder or under any other Loan Document, or at law or in equity, shall not
preclude the concurrent or subsequent exercise of any other right or remedy.
Lender shall have all rights, remedies and recourses afforded to Lender by
reason of this Guaranty or any other Loan Document or by law or equity or
otherwise, and the same (a) shall be cumulative and concurrent, (b) may be
pursued separately, successively or concurrently against Guarantor or others
obligated for the Guaranteed Obligation, or any part thereof, or against any one
or more of them, or against any security or otherwise, at the sole discretion of
Lender, (c) may be exercised as often as occasion therefor shall arise, it being
agreed by Guarantor that the exercise, discontinuance of the exercise of or
failure to exercise any of same shall in no event be construed as a waiver or
release thereof or of any other right, remedy, or recourse, and (d) are intended
to be, and shall be, nonexclusive. No waiver of any default on the part of
Guarantor, or of any breach of any of the provisions of this Guaranty or of any
other document shall be considered a waiver of any other or subsequent default
or breach, and no delay or omission in exercising or enforcing the rights and
powers granted herein or in any other document shall be construed as a waiver of
such rights and powers, and likewise no exercise or enforcement of any rights or
powers hereunder or under any other document shall be held to exhaust such
rights and powers, and every such right and power may be exercised from time to
time. The granting of any consent, approval or waiver by Lender shall be limited
to the specific instance and purpose and shall not constitute consent or
approval in any other instance or for any other purpose. No notice to nor demand
on Guarantor, in any case shall of itself entitle Guarantor, to any other or
further notice or demand in similar or other circumstances. No provision of this
Guaranty nor any right, remedy or recourse of Lender with respect hereto, nor
any default or breach, can be waived, nor can this Guaranty or Guarantor be
released or discharged in any way or to any extent, except specifically by a
writing intended for that purpose (referring specifically to this Guaranty)
executed by Lender.
17. Term of Guaranty. This Guaranty shall continue in full force and effect
until Guarantor has fully and finally paid all amounts (including, without
limitation, the Indebtedness described in Section 1 hereof) and performed all
obligations (including, without limitation, all obligations described in Section
2 hereof) required to be paid or performed by Guarantor under this Guaranty.
Notwithstanding anything to the contrary contained in this Section or elsewhere
in this Guaranty or in any other Loan Document, (a) if pursuant to any
bankruptcy, insolvency or other debtor relief law or any order or decision
thereunder Lender must rescind or restore any payment or part thereof received
by Lender in satisfaction of the Indebtedness or any part thereof, the term
"Indebtedness" as used herein includes such payment to the extent rescinded or
restored, and, to the extent of the payment rescinded or restored, any prior
return, cancellation, release or discharge by Lender of this Guaranty or of
Guarantor shall be without effect and this Guaranty shall remain in full force
and effect notwithstanding such return, cancellation, release or discharge, and
(b) if any indemnification indebtedness is incurred pursuant to any indemnity
contained in any Loan Document (including, without limitation, Section 6.21 of
the Loan Agreement), the term "Indebtedness" as used herein includes such
indemnification indebtedness, and, to the extent of such indemnification
indebtedness, any prior return, cancellation, release or discharge by Lender of
this Guaranty or of Guarantor shall be without effect and this Guaranty shall
remain in full force and effect notwithstanding such return, cancellation,
release or discharge.
18. Financial Statements. Guarantor shall furnish to Lender a balance sheet
(including disclosure of all contingent liabilities) and an income statement of
Guarantor, for each fiscal year of Guarantor as soon as reasonably practicable,
but in any event within one hundred twenty (120) days after the end of such
fiscal year. Each such financial statement shall be certified in writing as true
and correct in all material respects by Guarantor (or if Guarantor is a legal
entity, by a shareholder or other representative of Guarantor acceptable to
Lender) and audited by an independent third party certified public accountant
acceptable to Lender. Guarantor shall also furnish to Lender, as soon as
reasonably practicable, but in any event within thirty (30) days after the
filing of such with the Securities Exchange Commission, Guarantor's 10Q and 10K
financial reports.
19. Participations. Guarantor acknowledges and agrees that Lender may from time
to time sell or offer to sell participations in the loan evidenced by the Note
to one or more participants. Guarantor hereby authorizes Lender to provide to
any such participant or prospective participant such information as Lender has
from time to time pertaining to the Indebtedness or this
GUARANTY AGREEMENT (CANDLEWOOD WICHITA NORTHEAST-CANDLEWOOD, INC.) PAGE 6
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Guaranty, including but not limited to credit information on Borrower, Guarantor
and any of their principals, respectively.
20. Gender; Titles; Construction. Within this Guaranty, words of any gender
shall be held and construed to include any other gender, and words in the
singular number shall be held and construed to include the plural, unless the
context otherwise requires. Titles appearing at the beginning of any
subdivisions hereof are for convenience only, do not constitute any part of such
subdivisions, and shall be disregarded in construing the language contained in
such subdivisions. The use of the words "herein," "hereof," "hereunder" and
other similar compounds of the word "here" shall refer to this entire Guaranty
and not to any particular section, paragraph or provision.
21. Time of Essence. Time shall be of the essence in this Guaranty with respect
to all of Guarantor's obligations hereunder.
22. Execution. This Guaranty may be executed in multiple counterparts, each of
which, for all purposes, shall be deemed an original, and all of which together
shall constitute one and the same agreement; and if the term "Guarantor"
includes more than one person, the failure of any one or more such persons to
execute a counterpart thereof shall not impair or affect the enforceability of
this Guaranty against any person who does sign this Guaranty.
23. Entire Agreement. This Guaranty embodies the entire agreement between Lender
and Guarantor with respect to guaranty by Guarantor of the Guaranteed Obligation
and supersedes all prior agreements and understandings, if any, with respect to
guaranty by Guarantor of the Guaranteed Obligation.
24. Drafted Jointly. The parties have participated jointly in the negotiation
and drafting of this Guaranty. In the event an ambiguity or question of intent
or interpretation arises, there shall be no presumption or burden of proof which
arises favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Guaranty.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
EXECUTED as of and dated October 15, 1996.
Address of Guarantor: GUARANTOR:
9342 East Central CANDLEWOOD HOTEL COMPANY, INC.,
Xxxxxxx, Xxxxxx 00000 a Delaware corporation
By: /s/ Xxxxxx X. Fix
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Name: Xxxxxx X. Fix
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Title: Executive Vice President
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