EXHIBIT 10.10(c)
GUARANTY OF PROMISSORY NOTE
For valuable consideration, the undersigned, XXXX XXXX, A.G., a
German corporation ("Guarantor"), hereby unconditionally guarantees the due,
prompt and complete performance (including payment) at stated maturity, by
acceleration or otherwise by I.C. Xxxxxx & Company L.P., a Delaware limited
partnership ("Buyer"), of each and every obligation and liability now or
hereafter existing of Buyer under that certain Promissory Note, dated
November 5, 1997 ("Note") to Brookhurst, Inc. ("Seller") whether for principal,
interest, fees, expenses, attorneys' fees, court costs and collection charges
incurred by Seller in enforcing this Guaranty ("the "Obligations") or otherwise.
The obligations of Guarantor under this Guaranty are independent of
the obligations of Buyer, and a separate action or actions may be brought
against Guarantor, whether action is brought against Buyer or whether Buyer is
joined in any such action or actions; provided, however, Seller shall be
required to first comply with any procedures specified in the Note or any
agreement ancillary thereto with respect to demands to be made against Buyer or
actions to be taken in order to quantify an amount due or identify an issue in
dispute.
If any provision of this Guaranty is held invalid or unenforceable,
the remainder of this Guaranty shall not be affected thereby, the provisions of
this Guaranty being severable in any such instance.
Guarantor guarantees that the Obligations will be paid strictly in
accordance with the terms of the Note, regardless of any law, regulation or
order, except an order with respect to the liability of Buyer or Guarantor under
this Note now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of Seller with respect thereto. The liability of Guarantor
under this Guaranty shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of Buyer's obligations
under the Note or any other agreement or instrument relating
or ancillary thereto;
(ii) any change in the time, manner, place and/or terms of payment
of, or in any other term of, all or any of the Obligations, or
any other amendment or waiver of, or any consent to or
departure from the Note;
(iii) any action or inaction, taken under or in respect of the Note
and/or any other agreement executed concurrently herewith in
the exercise of any remedy, power or privilege therein
contained (including, without limitation, the acceleration of
the maturity of the Note) or otherwise with respect thereto
except the exercise of the right of set-off set forth in
Section 6 of the Note and Section 9.12 of the Worldwide Rights
Acquisition Agreement ("Acquisition Agreement");
(iv) the extension of time for Buyer's performance of or compliance
with any terms, covenants or agreements on its part to be
performed or observed under the Note, or the waiver of such
performance or compliance with or consent to the failure in or
departure from such performance or compliance;
(v) the settlement or compromise of the liability of Buyer to pay
any and all of the Obligations, or the subordination of the
payment of any and all of the Obligations to the prior payment
of any other debts or claims of Buyer; or
(vi) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of,
Buyer in respect of the obligations or a surety or guarantor
in respect of this Guaranty (it being agreed that the
obligations of the Guarantor hereunder shall not be discharged
except by payment as herein provided) subject to the right of
set-off set forth in Section 6 of the Note and Section 9.12 of
the Acquisition Agreement.
Any action, inaction, change, extension, waiver, or consent referred to above
may be in such manner and upon such terms Seller and Buyer may deem proper, and
without notice to or further assent from the Guarantor, and all without
affecting this Guaranty or the obligations of the Guarantor hereunder, which
shall continue in full force and effect until all of the Obligations and all
obligations of the Guarantor hereunder shall be fully paid and performed.
Guarantor hereby waives promptness, diligence, presentment, demand,
protest, notice of acceptance or of the occurrence of an Event of Default and
any other notice with respect to any of the Obligations and this Guaranty and
any requirement that Seller exhaust any right or take any action against Buyer
or other person or entity.
Guarantor hereby represents and warrants as follows:
(i) The execution, delivery and performance by Guarantor of this
Guaranty do not contravene any law or contractual restriction
binding on or affecting Guarantor.
(ii) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and
performance by Guarantor of this Guaranty.
2
(iii) This Guaranty is a legal, valid and binding obligation of
Guarantor, enforceable in accordance with its terms.
No amendment or waiver of any provision of this Guaranty nor consent
to any departure by Guarantor therefrom shall in any event be effective unless
the same shall be in writing and signed by Seller.
No failure on the part of Seller to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
This Guaranty is a continuing guaranty and shall (i) remain in full
force and effect until payment in full of the Obligations and all other amounts
payable under this Guaranty, (ii) be binding upon Guarantor, its successors and
assigns, and (iii) inure to the benefit of and be enforceable by Seller and its
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii), Seller may assign or otherwise transfer the Note held by
it to any other person or entity, and such other person or entity shall
thereupon become vested with all the rights in respect thereof granted to Seller
herein or otherwise.
Seller, in its sole discretion, may proceed to exercise any right or
remedy which it may have under this Guaranty without pursuing or exhausting any
right or remedy which it may have against Buyer or any other person or entity,
for any or all of the Obligations; and Seller may proceed to exercise any right
or remedy which it may have under this Guaranty without regard to any actions or
omissions of Buyer or any other person or entity subject to the right of set-off
set forth in Section 6 of the Note and Section 9.12 of the Acquisition
Agreement.
This Guaranty shall be governed by, and construed in accordance
with, the laws of the State of New York without reference to its choice of law
rules. All disputes hereunder shall be resolved pursuant to the procedures set
forth in Section 9.12(a) of the Acquisition Agreement.
IN WITNESS WHEREOF, Xxxxxxxxx has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written. This Guaranty shall terminate immediately upon satisfaction
of the Note.
Dated November 5, 1997 XXXX XXXX A.G.
By: /s/ Jorg-Xxxxx Xxxxxx
---------------------------
Name: Jorg-Xxxxx Xxxxxx
-------------------------
Title: Chief Financial Officer
------------------------
By: /s/ Xxxx-Xxxxxx Xxxxxx
---------------------------
Name: Xxxx-Xxxxxx Xxxxxx
-------------------------
Title: Attorney-in-Fact
------------------------
Witness:
/s/ Illegible
------------------------
/s/ Illegible
------------------------
3
