EXHIBIT 10.24
GUARANTY
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To: IWN, L.P.,
a Delaware limited partnership
IWN, Inc.
a Delaware corporation
Effective as of December 31, 1995, IWN, Inc., a Delaware corporation
(hereinafter referred to as "IWN"), is entering into that certain Third Amended
and Restated Agreement of Limited Partnership of IWN, L.P., dated and effective
as of December 31, 1995 (the "Agreement"), together with Symphony Management
Associates, Inc., a Delaware corporation ("SYMPHONY"), pursuant to which
SYMPHONY agreed to make certain capital contributions to IWN, L.P., a Delaware
limited partnership ("COMPANY"). SYMPHONY now desires to transfer and assign
its entire Interest (as defined in the Agreement) in the Partnership to Symphony
IWN Investment LLC, a Delaware limited liability company affiliated with
SYMPHONY ("LLC"), pursuant to that certain Assignment and Substitution of
Limited Partner, of even date herewith, among the COMPANY, SYMPHONY and LLC. In
consideration of the assignment and substitution and of the financial
considerations heretofore or hereafter granted by IWN and the COMPANY and LLC
pursuant to the Agreement and the assignment and substitution, the undersigned
(hereinafter referred to as "GUARANTOR") hereby guarantees, promises and
undertakes as follows:
1. GUARANTOR unconditionally, absolutely and irrevocably guarantees and
promises to pay and perform in full all of LLC's obligations to make Capital
Contributions as that term is defined in Section 3.3 of the Agreement (herein
referred to as the "Obligations").
2. This Guaranty is for the punctual payment and performance of LLC's
Obligations in accordance with Section 3.3 of the Agreement, and not of
collection. As such GUARANTOR agrees that it is directly and primarily liable
hereunder to COMPANY and IWN, that the obligations hereunder are independent of
the Obligations of LLC, or of any other guarantor, and that a separate action or
actions may be brought and prosecuted by COMPANY and/or IWN against GUARANTOR,
whether action is brought against LLC or any other guarantor or whether LLC or
any other guarantor is joined in any such action or actions. GUARANTOR agrees
that any releases which may be given by COMPANY and/or IWN to LLC or any other
guarantor or endorser shall not release it from this Guaranty.
As a condition to payment or performance by GUARANTOR under this
Guaranty, COMPANY and/or IWN shall not be required to, and GUARANTOR hereby
waives any and all rights to require COMPANY and/or IWN to: prosecute or seek to
enforce any remedies against LLC or any other party liable to COMPANY and/or IWN
on account of
the obligations and/or to require COMPANY and/or IWN to seek to enforce or
resort to any remedies with respect to any security interests, liens or
encumbrances granted to COMPANY and/or IWN by LLC or any other party on account
of the obligations.
3. GUARANTOR hereby authorizes IWN, without notice or demand and without
affecting its liability hereunder, from time to time to: (a) renew, compromise,
extend, accelerate, or otherwise change the time for payment or the terms of any
of the obligations, or any part thereof; and (b) release or substitute any one
or more endorser(s) or GUARANTOR(s); GUARANTOR agrees that IWN may do any or all
of the foregoing in such manner, upon such terms and at such times as IWN, in
its discretion, deems advisable, without, in any way or respect, impairing,
affecting, reducing or releasing GUARANTOR from its undertakings hereunder and
GUARANTOR hereby consents to each and all of the foregoing acts, events and/or
occurrences.
4. GUARANTOR hereby waives any right to assert against COMPANY and/or IWN
any defense (legal or equitable), set-off, counterclaim, and/or claim which
GUARANTOR may now or at any time hereafter have against LLC and/or any other
party liable to COMPANY and/or IWN in any way or manner.
GUARANTOR hereby waives all defenses, counterclaims and off-sets of
any kind or nature, arising directly or indirectly from the present or future
lack of perfection, sufficiency, validity and/or enforceability of the
Agreement.
GUARANTOR hereby waives any right of subrogation GUARANTOR has or may
have as against LLC with respect to the Obligations. In addition, GUARANTOR
hereby waives any right to proceed against LLC, now or hereafter, for
contribution, indemnity, reimbursement, and any other suretyship rights and
claims, whether direct or indirect, liquidated or contingent, whether arising
under express or implied contract or by operation of law, which GUARANTOR may
now have or hereafter have against the LLC with respect to the Obligations.
GUARANTOR also hereby waives any rights to recourse to or with respect to any
asset of LLC.
GUARANTOR hereby waives any defense arising by reason of any claim
based upon an election of, remedies by COMPANY and/or IWN, which, in any manner
impairs, affects, reduces, releases, destroys and/or extinguishes GUARANTOR'S
subrogation rights, rights to proceed against LLC for reimbursement, and/or any
other rights of the GUARANTOR to proceed against LLC, against any other
GUARANTOR, or against any other person or security. GUARANTOR waives all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, notices of default, notice of
acceptance of this Guaranty, and notices of the existence, creation, or
incurring of new or additional indebtedness, and all other notices or
formalities to which GUARANTOR may be entitled.
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5. GUARANTOR is presently informed of the financial condition of the LLC
and COMPANY and of all other circumstances which a diligent inquiry would reveal
and which bear upon the risk of nonpayment of the Obligations. GUARANTOR hereby
covenants that it will continue to keep itself informed of LLC's and COMPANY's
financial condition, the status of other Guarantors, if any, and of all other
circumstances which bear upon the risk of nonpayment. GUARANTOR hereby waives
its right, if any, to require COMPANY and/or IWN to disclose to it any
information which COMPANY and/or IWN may now or hereafter acquire concerning
such condition or circumstances including, but not limited to, the release of or
revocation by any other GUARANTOR.
6. This Guaranty shall continue in full force and effect until LLC's
Obligations are fully paid, performed and discharged.
7. This Guaranty shall be binding upon the successors and assigns of
GUARANTOR and shall inure to the benefit of COMPANY's and/or IWN's successors
and assigns.
8. No modification of this Guaranty shall be effective for any purpose
unless it is in writing and executed by COMPANY and IWN. This Guaranty merges
all negotiations, stipulations and provisions relating to the subject matter of
this Guaranty which preceded or may accompany the execution of this Guaranty.
9. GUARANTOR agrees to pay reasonable attorneys' fees and all other costs
and expenses which may be incurred by COMPANY and/or IWN in the enforcement of
this Guaranty or in any way arising out of, following, or consequential to the
enforcement of LLC's Obligations under this Guaranty.
10. All acts and transactions hereunder and the rights and obligations of
the parties hereto shall be governed, construed and interpreted in accordance
with the laws of the State of Delaware without choice of law or conflicts of law
principles.
11. GUARANTOR, COMPANY AND IWN EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN
ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ARISING OUT OF COMPANY
AND/OR IWN's TRANSACTION WITH LLC.
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IN WITNESS WHEREOF, the undersigned has executed this Guaranty this 11th
day of March, 1996.
("GUARANTOR")
Symphony Management Associates, Inc.
/s/ Richard J. Donnelly
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Name: Richard J. Donnelly
Its: Treasurer and Secretary
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