Exhibit 10.67
GUARANTY AND SURETYSHIP
AGREEMENT
THIS GUARANTY AND SURETYSHIP
AGREEMENT (this
“Guaranty”) is made and entered into as of this 29th
day of September, 2006, by RESORTS INTERNATIONAL HOTEL AND CASINO,
INC., a Delaware corporation (the “Guarantor”), for the
benefit of THE CIT GROUP/EQUIPMENT FINANCING, INC., a Delaware
corporation (the “Beneficiary”).
PRELIMINARY
STATEMENT
A. Resorts International Hotel,
Inc., as Debtor (“ Debtor”) , and
Beneficiary, as Secured Party, entered into that certain Second
Amended and Restated Loan and Security Agreement, dated as of the
date hereof (as amended, supplemented, modified or assigned from
time to time, the “ Loan and Security Agreement
”). Any capitalized term used herein and not otherwise
defined herein shall have the meaning ascribed to such term in the
Loan and Security Agreement. The execution and delivery of this
Guaranty to Beneficiary is a condition precedent to the entering
into the Loan and Security Agreement by Beneficiary.
B. Debtor is a direct wholly-owned
subsidiary of Guarantor, and it is to the advantage of Guarantor
that Debtor and Beneficiary enter into the Loan and Security
Agreement, and Guarantor expects to derive benefit, directly or
indirectly, from the entering into by Debtor and Beneficiary of the
Loan and Security Agreement. But for Guarantor executing and
delivering this Guaranty to Beneficiary, Beneficiary would not
enter into the Loan and Security Agreement. Therefore, to induce
Beneficiary to enter into the Loan and Security Agreement,
Guarantor is willing to execute and deliver to Beneficiary this
Guaranty.
NOW, THEREFORE, in condition of the
premises and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Guarantor hereby
agrees with Beneficiary, as follows:
1. Guaranty of Guaranteed
Obligations . The Guarantor hereby guarantees, and becomes
surety for, the prompt payment and performance of all Obligations
(including any interest accruing thereon after maturity, or after
the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding relating to the
Debtor, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether or not evidenced
by any Document, whether direct or indirect (including those
acquired by assignment or participation), absolute or contingent,
joint or several, due or to become due, now existing or hereafter
arising, and any amendments, extensions, renewals or increases and
all costs and expenses of the Beneficiary incurred in the
documentation, negotiation, modification, enforcement, collection
or otherwise in connection with any of the foregoing, including
reasonable attorneys’ fees and expenses (hereinafter referred
to collectively as the “Guaranteed Obligations”
). If the Debtor defaults under any such Guaranteed Obligations,
the Guarantor will pay the amount due to the
Beneficiary.
2. Nature of Guaranty;
Waivers . This is a guaranty of payment and not of
collection and the Beneficiary shall not be required, as a
condition of the Guarantor’s liability, to make any demand
upon or to pursue any of its rights against the Debtor, or to
pursue any rights which may be available to it with respect to any
other Person who may be liable for the payment of the Guaranteed
Obligations.
This is an absolute, unconditional,
irrevocable and continuing guaranty and will remain in full force
and effect until all of the Guaranteed Obligations have been
indefeasibly paid in full. This Guaranty will remain in full force
and effect even if there is no principal balance outstanding under
the Guaranteed Obligations at a particular time or from time to
time. This Guaranty will not be affected by any surrender,
exchange, acceptance, compromise or release by the Beneficiary of
any other party, or any other guaranty or any security held by it
for any of the Guaranteed Obligations, by any failure of the
Beneficiary to take any steps to perfect or maintain its lien or
security interest in or to preserve its rights to any security or
other collateral for any of the Guaranteed Obligations or any
guaranty, or by any irregularity, unenforceability or invalidity of
any of the Guaranteed Obligations or any part thereof or any
security or other guaranty thereof. The Guarantor’s
obligations hereunder shall not be affected, modified or impaired
by any counterclaim, set-off, deduction or defense based upon any
claim the Guarantor may have against the Debtor or the Beneficiary,
except payment or performance of the Guaranteed
Obligations.
Notice of acceptance of this
Guaranty, notice of extensions of credit to the Debtor from time to
time, notice of default, diligence, presentment, notice of
dishonor, protest, demand for payment, and any defense based upon
the Beneficiary’s failure to comply with the notice
requirements of the applicable version of UCC are hereby waived.
The Guarantor waives all defenses based on suretyship or impairment
of collateral.
The Beneficiary at any time and from
time to time, without notice to or the consent of the Guarantor,
and without impairing or releasing, discharging or modifying the
Guarantor’s liabilities hereunder, may (a) change the
manner, place, time or terms of payment or performance of or
interest rates on, or other terms relating to, any of the
Guaranteed Obligations; (b) renew, substitute, modify, amend
or alter, or grant consents or waivers relating to any of the
Guaranteed Obligations, any other guaranties, or any security for
any Guaranteed Obligations or guaranties; (c) apply any and
all payments by whomever paid or however realized including any
proceeds of any collateral, to any Guaranteed Obligations of the
Debtor in such order, manner and amount as the Beneficiary may
determine in its sole discretion; (d) settle, compromise or
deal with any other person, including the Debtor or the Guarantor,
with respect to any Guaranteed Obligations in such manner as the
Beneficiary deems appropriate in its sole discretion;
(e) substitute, exchange or release any security or guaranty;
or (f) take such actions and exercise such remedies hereunder
as provided herein.
3. Repayments or Recovery from
the Beneficiary . If any demand is made at any time
upon the Beneficiary for the repayment or recovery of any amount
received by it in payment or on account of any of the Guaranteed
Obligations and if the Beneficiary repays all or any part of such
amount by reason of any judgment, decree or order of any court or
administrative body or by reason of any settlement or compromise of
any such demand, the Guarantor will be and remain liable hereunder
for the amount so repaid or recovered to the same extent as if such
amount had never been received originally by the Beneficiary. The
provisions of this section will be and remain effective
notwithstanding any contrary action which may have been taken by
the Guarantor in reliance upon such payment, and any such contrary
action so taken will be without prejudice to the
Beneficiary’s rights hereunder and will be deemed to have
been conditioned upon such payment having become final and
irrevocable.
2
4. Certain Representations,
Warranties and Covenants . Guarantor agrees that all the
represent
