Guarantors further agree as follows. A. That this Guaranty shall continue unmodified and undiminished in favor of Landlord (and Landlord’s successors and assigns), notwithstanding any extension, modification, amendment, change, or alteration of the Lease entered into by and between the parties thereto, or their successors or assigns, and notwithstanding any sublease or assignment of the Lease, and no extension, modification, amendment, alteration, sublease or assignment of the Lease shall in any manner release or discharge Guarantors, and Guarantors hereby consent thereto. B. That this Guaranty will continue unchanged by any bankruptcy, reorganization or insolvency of Tenant or any successor or assignee thereof or by any disaffirmance or abandonment by a trustee of Tenant. C. That Landlord may, without notice, assign this Guaranty in whole or in part, and no assignment or transfer of the Lease or this Guaranty shall operate to extinguish or diminish the liability of Guarantors hereunder. D. That the liability of Guarantors under this Guaranty shall be primary and, in any right or action which shall accrue to Landlord under the Lease, Landlord may, at its option, proceed against Guarantors (separately or together) without commencing any action or having obtained any judgment against Tenant, or any other Guarantor. E. To pay Landlord’s reasonable attorneys’ fees and all costs and other expenses incurred in any collection or attempted collection or in any negotiations relative to the obligations hereby guaranteed or enforcing this Guaranty. F. That Guarantors hereby waive notice of any demand by Landlord, as well as any and all notice of default or breach in the payment of rent or any other amounts, or the performance of any obligation, contained or reserved in the Lease. G. That the execution of this Guaranty by each Guarantor is a material inducement for Landlord to enter into the Lease with Tenant, and this Guaranty has been entered into knowingly and voluntarily by such Guarantor for the benefit of both Tenant and Guarantor.
Appears in 1 contract
Samples: Triple Net Lease Agreement (Zoned Properties, Inc.)
Guarantors further agree as follows. A. That this Guaranty shall continue unmodified and undiminished in favor of Landlord (and Landlord’s successors and assigns), notwithstanding any extension, modification, amendment, change, or alteration of the Lease entered into by and between the parties thereto, or their successors or assigns, and notwithstanding any sublease or assignment of the Lease, and no extension, modification, amendment, alteration, sublease or assignment of the Lease shall in any manner release or discharge Guarantors, and Guarantors hereby consent thereto.
B. That this Guaranty will continue unchanged by any bankruptcy, reorganization or insolvency of Tenant or any successor or assignee thereof or by any disaffirmance or abandonment by a trustee of Tenant.
C. That Landlord may, without notice, assign this Guaranty in whole or in part, and no assignment or transfer of the Lease or this Guaranty shall operate to extinguish or diminish the liability of Guarantors hereunder.
D. That the liability of Guarantors under this Guaranty shall be primary and, in any right or action which shall accrue to Landlord under the Lease, Landlord may, at its option, proceed against Guarantors (separately or together) without commencing any action or having obtained any judgment against Tenant, or any other Guarantor.
E. To pay Landlord’s reasonable attorneys’ fees and all costs and other expenses incurred in any collection or attempted collection or in any negotiations relative to the obligations hereby guaranteed or enforcing this Guaranty.
F. That Guarantors hereby waive notice of any demand by Landlord, as well as any and all notice of default or breach in the payment of rent or any other amounts, or the performance of any obligation, contained or reserved in the Lease.
G. That the execution of this Guaranty by each Guarantor is a material inducement for Landlord to enter into the Lease with Tenant, and this Guaranty has been entered into knowingly and voluntarily by such Guarantor for the benefit of both Tenant and Guarantor.
3. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the successors, assigns, estates and personal representatives of the parties herein named.
4. Guarantors expressly waive notice of acceptance of this Guaranty, presentment or payment or performance of the Lease, non-payment or non-performance of the Lease, any right of setoff against amounts due under this Guaranty, protest and notice of protest, demand, notice of dishonor, notice of any and all proceedings to collect amounts due under such agreements and to enforce any security given therefor, and diligence in collecting sums due under such agreements or to any liability under this Guaranty. Guarantors also waive any right to require Landlord to proceed against Tenant, to proceed against or exhaust any security held to guaranty performance of Tenant’s obligation to Landlord from Tenant or to pursue any other remedy whatsoever available to Landlord. Guarantors expressly waive any defense arising by reason of any disability or other defense of Tenant, by reason of the cessation from any cause whatsoever of the liability of Tenant, or by reason of Landlord’s election of any remedy against Tenant or Guarantors, or both, including without limitation, election of Landlord to exercise its right to terminate the Lease. Guarantors further waive all defenses afforded guarantors and all rights based on suretyship or impairment of collateral under the laws of the State of Arizona, including but not limited to: (1) the benefits of the provisions of Arizona Revised Statutes Sections 12-1566(E), 12-1641 et seq., 44-141, 44-142 or 47-3605, Arizona Rules of Civil Procedure Rule 17(f), and any and all other laws, rules and statutes of similar import, and any other statutes or rules, which set forth certain rights and obligations among guarantors, debtors and creditors, to the extent applicable; and (2) to the extent applicable, the benefits of any statutory provision limiting the right of Landlord to recover a deficiency judgment, or to otherwise proceed, against any person or entity obligated for payment of the any of Tenant’s obligations after any foreclosure of any collateral securing any part of the indebtedness and other obligations of the Lease, including, without limitation, the benefits, if any, of Arizona Revised Statutes Section 33-814 and § 12-1566; and (3) any implied right of reimbursement or contribution from Tenant or any other claim against Tenant at law or in equity.
5. In the event of any default or breach in the performance of Tenant’s duties or obligations under the Lease, Landlord shall have the right (a) to enforce its rights under this Guaranty, and/or (b) to enforce its rights against Tenant including, without limitation, its rights under any and all such instruments in any order, and all remedies available to Landlord shall be non-exclusive and cumulative. The obligations of Guarantors hereunder are independent of the obligations of Tenant, and Landlord may enforce its rights under this Guaranty without first proceeding against or joining Tenant or any other person and without applying or enforcing any security for the Lease. Guarantors hereby waive any rights that Guarantors may have to compel Landlord to proceed against Tenant or against any security from Tenant for such agreements or to participate in any such security. Guarantors hereby authorize Landlord, its successors and assigns, in their sole discretion, without notice to Guarantors, to exercise any right or remedy which Landlord may have, even though any rights which Guarantors may have against the Tenant or others may be diminished or destroyed by the exercise or election to exercise any such remedy.
6. Guarantors hereby authorize Landlord, without notice to Guarantors, to apply all payments and credits received from Tenant or from Guarantors or realized from the security from Tenant for the Lease, in such manner and in such priority as Landlord in its sole judgment shall see fit.
7. If any term or provision of this Guaranty shall be determined to be illegal or unenforceable, all other terms and provisions hereof shall nevertheless remain effective and shall be enforced to the fullest extent permitted by law.
8. The use of the singular herein shall include the plural. The obligation of two or more parties shall be joint and several.
9. This Guaranty is governed and shall be construed by the laws of the State of Arizona (without regard to conflict of laws rules), and Guarantors consent to jurisdiction and venue in the federal and state courts in Phoenix, Arizona. If either party hereto participates in an action against the other party arising out or in connection with this Guaranty, the prevailing party shall be entitled to recover from the other party the prevailing party’s reasonable attorneys’ fees, collection costs and other costs incurred in connection with such action.
10. Until all indebtedness and obligations of Tenant to Landlord shall be paid and performed in full under the Lease, Guarantors shall have no right of subrogation and waives any right to enforce any remedy which Guarantors now have or may hereafter have against Tenant.
11. Guarantors agree that to the extent Tenant or Guarantors make any payment to Landlord, and all or any part of such payment is subsequently invalidated, declared to be fraudulent, or preferential, set aside or required to be repaid by Landlord or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise (any such payment is hereinafter referred to as a “Preferential Payment”), then this Guaranty shall continue to be effective or shall be reinstated, as the case may be, and, to the extent of such payment or repayment by Landlord, the debt, indebtedness, or obligation or part thereof intended to be satisfied by such Preferential Payment shall be revived and continued in full force and effect as if said Preferential Payment had not been made.
12. Guarantors agree that any indebtedness or obligations of Tenant now or hereafter held by or payable to Guarantors (or any of them) are hereby and shall be unconditionally subordinated to the debt, indebtedness and obligations owing to Landlord under the Lease and under this Guaranty, and to the rights of Landlord thereunder and hereunder. Guarantors agree that all existing and future indebtedness owing from Tenant to Guarantor shall not, without the prior written consent of Landlord, be paid in whole or in part, nor will Guarantor accept payment of or on account of any such subordinated indebtedness, while this Guaranty is in effect. Each payment by Tenant to Guarantor in violation of this Guaranty shall be received by Guarantor expressly in trust for Landlord and shall be paid to Landlord immediately on account of the debt, indebtedness and obligations owing to Landlord under this Guaranty. No such payment shall reduce or affect in any manner the liability of Guarantor under this Guaranty. To the extent Guarantors’ waiver of its rights of subrogation, reimbursement or contribution as set forth in this Guaranty is found by a court of competent jurisdiction to be void or voidable for any reason, Guarantors agree that Guarantors’ rights of subrogation and reimbursement against Tenant and Guarantors’ right of subrogation against any collateral or security shall be unconditionally junior and subordinate to Landlord’s rights against Tenant and to Landlord’s right, title and interest in such collateral or security, and Guarantors’ right of contribution against any other guarantor or pledgor shall be unconditionally junior and subordinate to Landlord’s rights against such other guarantor or pledgor.
13. Guarantors shall promptly (but in no event later than seven (7) days after request by Landlord) provide Landlord, from time to time, upon request by Landlord, with complete and comprehensive personal financial information and statements regarding Guarantors’ wealth, liabilities, income and other financial matters pertinent to Guarantors (in form reasonably acceptable to Landlord), all of which shall be certified by Guarantors’ to be true and complete in all respects as of the date of such statements, and if requested by Landlord, such personal financial statements shall be audited and certified for the benefit of Landlord, at Guarantors’ cost, by an independent certified accountant acceptable to Landlord.
14. Any death or incapacity of either Guarantors shall constitute a breach and default under the Lease and this Guaranty, unless the surviving Guarantor shall substitute the deceased or incapacitated Guarantor with a replacement Guarantor acceptable to Landlord within a period of ten (10) days of such death or incapacity.
15. In no event may Guarantors assign, encumber, pledge, lien, transfer, sell or convey (directly or indirectly or by operation of law) any of Guarantors’ right, title and interest in and to any of Guarantors’ ownership interests of Tenant. Guarantors represent and warrant that as of the date of this Guaranty, Guarantors own, free and clear of all demands, liens, security interests, pledges, and claims, 100% of the issued and outstanding ownership interests of Tenant.
16. The obligations of Guarantors hereunder shall survive and continue in full force and effect until payment in full and performance of all duties, obligations and liabilities of Tenant under the Lease and of Guarantors under this Guaranty (hereinafter called the “Indebtedness”), notwithstanding:
(a) any release or termination of the liability of Tenant or any other guarantor, by express or implied agreement with Landlord or by operation of law; (b) the Indebtedness or any part thereof is deemed to have been paid or discharged by operation of law or some act or agreement of Landlord; (c) recovery upon the Indebtedness may be or hereafter becomes barred by any statutes of limitation, by bankruptcy, by insolvency, by reorganization, or any other means; or (d) the Indebtedness may be or hereafter becomes unenforceable or invalid.
17. Upon the occurrence of an uncured default under the Lease or this Guaranty, Guarantor shall (or cause its applicable Affiliate to) take all steps necessary to name and appoint the requisite number of Landlord’s individual designee(s) in order to establish a majority position on the Board of Directors, as Director(s) of CJK, Inc. (the “Designated Director(s)”), the licensed medical marijuana non-profit entity recognized by the Arizona Department of Health Services under the Arizona Medical Marijuana Act. In addition, the Board of Directors of CJK, Inc. shall: (i) prepare, execute and submit for approval to the Arizona Corporation Commission, Articles of Amendment to the Articles of Incorporation, evidencing the appointment of the Designated Director(s); (ii) modify the Bylaws evidencing the addition of the Designated Director(s) and stipulate that all actions and decisions regarding the Leased Premises this Agreement and anything related to the operation, administration and management of the Leased Premises shall require Director Approval (as herein defined). For purposes herein “Director Approval” shall mean shall require the consent and approval of a majority of the Directors of CJK, Inc. (“Majority of the Directors”); provided, however, in all circumstances, the Majority of the Directors must also include the affirmative approval of the Designated Director(s).
Appears in 1 contract
Samples: Triple Net Lease Agreement (Zoned Properties, Inc.)
Guarantors further agree as follows. A. That this Guaranty shall continue unmodified and undiminished in favor of Landlord (and Landlord’s successors and assigns), notwithstanding any extension, modification, amendment, change, or alteration of the Lease entered into by and between the parties thereto, or their successors or assigns, and notwithstanding any sublease or assignment of the Lease, and no extension, modification, amendment, alteration, sublease or assignment of the Lease shall in any manner release or discharge Guarantors, and Guarantors hereby consent thereto.
B. That this Guaranty will continue unchanged by any bankruptcy, reorganization or insolvency of Tenant or any successor or assignee thereof or by any disaffirmance or abandonment by a trustee of Tenant.
C. That Landlord may, without notice, assign this Guaranty in whole or in part, and no assignment or transfer of the Lease or this Guaranty shall operate to extinguish or diminish the liability of Guarantors hereunder.
D. That the liability of Guarantors under this Guaranty shall be primary and, in any right or action which shall accrue to Landlord under the Lease, Landlord may, at its option, proceed against Guarantors (separately or together) without commencing any action or having obtained any judgment against Tenant, or any other Guarantor.
E. To pay Landlord’s reasonable attorneys’ fees and all costs and other expenses incurred in any collection or attempted collection or in any negotiations relative to the obligations hereby guaranteed or enforcing this Guaranty.
F. That Guarantors hereby waive notice of any demand by Landlord, as well as any and all notice of default or breach in the payment of rent or any other amounts, or the performance of any obligation, contained or reserved in the Lease.
G. That the execution of this Guaranty by each Guarantor is a material inducement for Landlord to enter into the Lease with Tenant, and this Guaranty has been entered into knowingly and voluntarily by such Guarantor for the benefit of both Tenant and Guarantor.
3. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the successors, assigns, estates and personal representatives of the parties herein named.
4. Guarantors expressly waive notice of acceptance of this Guaranty, presentment or payment or performance of the Lease, non-payment or non-performance of the Lease, any right of setoff against amounts due under this Guaranty, protest and notice of protest, demand, notice of dishonor, notice of any and all proceedings to collect amounts due under such agreements and to enforce any security given therefor, and diligence in collecting sums due under such agreements or to any liability under this Guaranty. Guarantors also waive any right to require Landlord to proceed against Tenant, to proceed against or exhaust any security held to guaranty performance of Tenant’s obligation to Landlord from Tenant or to pursue any other remedy whatsoever available to Landlord. Guarantors expressly waive any defense arising by reason of any disability or other defense of Tenant, by reason of the cessation from any cause whatsoever of the liability of Tenant, or by reason of Landlord’s election of any remedy against Tenant or Guarantors, or both, including without limitation, election of Landlord to exercise its right to terminate the Lease. Guarantors further waive all defenses afforded guarantors and all rights based on suretyship or impairment of collateral under the laws of the State of Arizona, including but not limited to: (1) the benefits of the provisions of Arizona Revised Statutes Sections 12-1566(E), 12-1641 et seq., 44-141, 44-142 or 47-3605, Arizona Rules of Civil Procedure Rule 17(f), and any and all other laws, rules and statutes of similar import, and any other statutes or rules, which set forth certain rights and obligations among guarantors, debtors and creditors, to the extent applicable; and (2) to the extent applicable, the benefits of any statutory provision limiting the right of Landlord to recover a deficiency judgment, or to otherwise proceed, against any person or entity obligated for payment of the any of Tenant’s obligations after any foreclosure of any collateral securing any part of the indebtedness and other obligations of the Lease, including, without limitation, the benefits, if any, of Arizona Revised Statutes Section 33-814 and § 12-1566; and (3) any implied right of reimbursement or contribution from Tenant or any other claim against Tenant at law or in equity.
5. In the event of any default or breach in the performance of Tenant’s duties or obligations under the Lease, Landlord shall have the right (a) to enforce its rights under this Guaranty, and/or (b) to enforce its rights against Tenant including, without limitation, its rights under any and all such instruments in any order, and all remedies available to Landlord shall be non-exclusive and cumulative. The obligations of Guarantors hereunder are independent of the obligations of Tenant, and Landlord may enforce its rights under this Guaranty without first proceeding against or joining Tenant or any other person and without applying or enforcing any security for the Lease. Guarantors hereby waive any rights that Guarantors may have to compel Landlord to proceed against Tenant or against any security from Tenant for such agreements or to participate in any such security. Guarantors hereby authorize Landlord, its successors and assigns, in their sole discretion, without notice to Guarantors, to exercise any right or remedy which Landlord may have, even though any rights which Guarantors may have against the Tenant or others may be diminished or destroyed by the exercise or election to exercise any such remedy.
6. Guarantors hereby authorize Landlord, without notice to Guarantors, to apply all payments and credits received from Tenant or from Guarantors or realized from the security from Tenant for the Lease, in such manner and in such priority as Landlord in its sole judgment shall see fit.
7. If any term or provision of this Guaranty shall be determined to be illegal or unenforceable, all other terms and provisions hereof shall nevertheless remain effective and shall be enforced to the fullest extent permitted by law.
8. The use of the singular herein shall include the plural. The obligation of two or more parties shall be joint and several.
9. This Guaranty is governed and shall be construed by the laws of the State of Arizona (without regard to conflict of laws rules), and Guarantors consent to jurisdiction and venue in the federal and state courts in Phoenix, Arizona. If either party hereto participates in an action against the other party arising out or in connection with this Guaranty, the prevailing party shall be entitled to recover from the other party the prevailing party’s reasonable attorneys’ fees, collection costs and other costs incurred in connection with such action.
10. Until all indebtedness and obligations of Tenant to Landlord shall be paid and performed in full under the Lease, Guarantors shall have no right of subrogation and waives any right to enforce any remedy which Guarantors now have or may hereafter have against Tenant.
11. Guarantors agree that to the extent Tenant or Guarantors make any payment to Landlord, and all or any part of such payment is subsequently invalidated, declared to be fraudulent, or preferential, set aside or required to be repaid by Landlord or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise (any such payment is hereinafter referred to as a “Preferential Payment”), then this Guaranty shall continue to be effective or shall be reinstated, as the case may be, and, to the extent of such payment or repayment by Landlord, the debt, indebtedness, or obligation or part thereof intended to be satisfied by such Preferential Payment shall be revived and continued in full force and effect as if said Preferential Payment had not been made.
12. Guarantors agree that any indebtedness or obligations of Tenant now or hereafter held by or payable to Guarantors (or any of them) are hereby and shall be unconditionally subordinated to the debt, indebtedness and obligations owing to Landlord under the Lease and under this Guaranty, and to the rights of Landlord thereunder and hereunder. Guarantors agree that all existing and future indebtedness owing from Tenant to Guarantor shall not, without the prior written consent of Landlord, be paid in whole or in part, nor will Guarantor accept payment of or on account of any such subordinated indebtedness, while this Guaranty is in effect. Each payment by Tenant to Guarantor in violation of this Guaranty shall be received by Guarantor expressly in trust for Landlord and shall be paid to Landlord immediately on account of the debt, indebtedness and obligations owing to Landlord under this Guaranty. No such payment shall reduce or affect in any manner the liability of Guarantor under this Guaranty. To the extent Guarantors’ waiver of its rights of subrogation, reimbursement or contribution as set forth in this Guaranty is found by a court of competent jurisdiction to be void or voidable for any reason, Guarantors agree that Guarantors’ rights of subrogation and reimbursement against Tenant and Guarantors’ right of subrogation against any collateral or security shall be unconditionally junior and subordinate to Landlord’s rights against Tenant and to Landlord’s right, title and interest in such collateral or security, and Guarantors’ right of contribution against any other guarantor or pledgor shall be unconditionally junior and subordinate to Landlord’s rights against such other guarantor or pledgor.
13. Guarantors shall promptly (but in no event later than seven (7) days after request by Landlord) provide Landlord, from time to time, upon request by Landlord, with complete and comprehensive personal financial information and statements regarding Guarantors’ wealth, liabilities, income and other financial matters pertinent to Guarantors (in form reasonably acceptable to Landlord), all of which shall be certified by Guarantors’ to be true and complete in all respects as of the date of such statements, and if requested by Landlord, such personal financial statements shall be audited and certified for the benefit of Landlord, at Guarantors’ cost, by an independent certified accountant acceptable to Landlord.
14. Any death or incapacity of either Guarantors shall constitute a breach and default under the Lease and this Guaranty, unless the surviving Guarantor shall substitute the deceased or incapacitated Guarantor with a replacement Guarantor acceptable to Landlord within a period of ten (10) days of such death or incapacity.
15. In no event may Guarantors assign, encumber, pledge, lien, transfer, sell or convey (directly or indirectly or by operation of law) any of Guarantors’ right, title and interest in and to any of Guarantors’ ownership interests of Tenant. Guarantors represent and warrant that as of the date of this Guaranty, Guarantors own, free and clear of all demands, liens, security interests, pledges, and claims, 100% of the issued and outstanding ownership interests of Tenant.
16. The obligations of Guarantors hereunder shall survive and continue in full force and effect until payment in full and performance of all duties, obligations and liabilities of Tenant under the Lease and of Guarantors under this Guaranty (hereinafter called the “Indebtedness”), notwithstanding: (a) any release or termination of the liability of Tenant or any other guarantor, by express or implied agreement with Landlord or by operation of law; (b) the Indebtedness or any part thereof is deemed to have been paid or discharged by operation of law or some act or agreement of Landlord; (c) recovery upon the Indebtedness may be or hereafter becomes barred by any statutes of limitation, by bankruptcy, by insolvency, by reorganization, or any other means; or (d) the Indebtedness may be or hereafter becomes unenforceable or invalid.
17. Upon the occurrence of an uncured default under the Lease or this Guaranty, Guarantor shall (or cause its applicable Affiliate to) take all steps necessary to name and appoint the requisite number of Landlord’s individual designee(s) in order to establish a majority position on the Board of Directors, as Director(s) of Broken Arrow Herbal Center, Inc. (the “Designated Director(s)”), the licensed medical marijuana non-profit entity recognized by the Arizona Department of Health Services under the Arizona Medical Marijuana Act. In addition, the Board of Directors of Broken Arrow Herbal Center, Inc. shall: (i) prepare, execute and submit for approval to the Arizona Corporation Commission, Articles of Amendment to the Articles of Incorporation, evidencing the appointment of the Designated Director(s); (ii) modify the Bylaws evidencing the addition of the Designated Director(s) and stipulate that all actions and decisions regarding the Leased Premises this Agreement and anything related to the operation, administration and management of the Leased Premises shall require Director Approval (as herein defined). For purposes herein “Director Approval” shall mean shall require the consent and approval of a majority of the Directors of Broken Arrow Herbal Center, Inc. (“Majority of the Directors”); provided, however, in all circumstances, the Majority of the Directors must also include the affirmative approval of the Designated Director(s).
Appears in 1 contract
Guarantors further agree as follows. A. That this Guaranty shall continue unmodified and undiminished in favor of Landlord (and Landlord’s successors and assigns), notwithstanding any extension, modification, amendment, change, or alteration of the Lease entered into by and between the parties thereto, or their successors or assigns, and notwithstanding any sublease or assignment of the Lease, and no extension, modification, amendment, alteration, sublease or assignment of the Lease shall in any manner release or discharge Guarantors, and Guarantors hereby consent thereto.
B. That this Guaranty will continue unchanged by any bankruptcy, reorganization or insolvency of Tenant or any successor or assignee thereof or by any disaffirmance or abandonment by a trustee of Tenant.
C. That Landlord may, without notice, assign this Guaranty in whole or in part, and no assignment or transfer of the Lease or this Guaranty shall operate to extinguish or diminish the liability of Guarantors hereunder.
D. That the liability of Guarantors under this Guaranty shall be primary and, in any right or action which shall accrue to Landlord under the Lease, Landlord may, at its option, proceed against Guarantors (separately or together) without commencing any action or having obtained any judgment against Tenant, or any other Guarantor.
E. To pay Landlord’s reasonable attorneys’ fees and all costs and other expenses incurred in any collection or attempted collection or in any negotiations relative to the obligations hereby guaranteed or enforcing this Guaranty.
F. That Guarantors hereby waive notice of any demand by Landlord, as well as any and all notice of default or breach in the payment of rent or any other amounts, or the performance of any obligation, contained or reserved in the Lease.
G. That the execution of this Guaranty by each Guarantor is a material inducement for Landlord to enter into the Lease with Tenant, and this Guaranty has been entered into knowingly and voluntarily by such Guarantor for the benefit of both Tenant and Guarantor.
3. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the successors, assigns, estates and personal representatives of the parties herein named.
4. Guarantors expressly waive notice of acceptance of this Guaranty, presentment or payment or performance of the Lease, non-payment or non-performance of the Lease, any right of setoff against amounts due under this Guaranty, protest and notice of protest, demand, notice of dishonor, notice of any and all proceedings to collect amounts due under such agreements and to enforce any security given therefor, and diligence in collecting sums due under such agreements or to any liability under this Guaranty. Guarantors also waive any right to require Landlord to proceed against Tenant, to proceed against or exhaust any security held to guaranty performance of Tenant’s obligation to Landlord from Tenant or to pursue any other remedy whatsoever available to Landlord. Guarantors expressly waive any defense arising by reason of any disability or other defense of Tenant, by reason of the cessation from any cause whatsoever of the liability of Tenant, or by reason of Landlord’s election of any remedy against Tenant or Guarantors, or both, including without limitation, election of Landlord to exercise its right to terminate the Lease. Guarantors further waive all defenses afforded guarantors and all rights based on suretyship or impairment of collateral under the laws of the State of Arizona, including but not limited to: (1) the benefits of the provisions of Arizona Revised Statutes Sections 12-1566(E), 12-1641 et seq., 44-141, 44-142 or 47-3605, Arizona Rules of Civil Procedure Rule 17(f), and any and all other laws, rules and statutes of similar import, and any other statutes or rules, which set forth certain rights and obligations among guarantors, debtors and creditors, to the extent applicable; and (2) to the extent applicable, the benefits of any statutory provision limiting the right of Landlord to recover a deficiency judgment, or to otherwise proceed, against any person or entity obligated for payment of the any of Tenant’s obligations after any foreclosure of any collateral securing any part of the indebtedness and other obligations of the Lease, including, without limitation, the benefits, if any, of Arizona Revised Statutes Section 33-814 and § 12-1566; and (3) any implied right of reimbursement or contribution from Tenant or any other claim against Tenant at law or in equity.
5. In the event of any default or breach in the performance of Tenant’s duties or obligations under the Lease, Landlord shall have the right (a) to enforce its rights under this Guaranty, and/or (b) to enforce its rights against Tenant including, without limitation, its rights under any and all such instruments in any order, and all remedies available to Landlord shall be non-exclusive and cumulative. The obligations of Guarantors hereunder are independent of the obligations of Tenant, and Landlord may enforce its rights under this Guaranty without first proceeding against or joining Tenant or any other person and without applying or enforcing any security for the Lease. Guarantors hereby waive any rights that Guarantors may have to compel Landlord to proceed against Tenant or against any security from Tenant for such agreements or to participate in any such security. Guarantors hereby authorize Landlord, its successors and assigns, in their sole discretion, without notice to Guarantors, to exercise any right or remedy which Landlord may have, even though any rights which Guarantors may have against the Tenant or others may be diminished or destroyed by the exercise or election to exercise any such remedy.
6. Guarantors hereby authorize Landlord, without notice to Guarantors, to apply all payments and credits received from Tenant or from Guarantors or realized from the security from Tenant for the Lease, in such manner and in such priority as Landlord in its sole judgment shall see fit.
7. If any term or provision of this Guaranty shall be determined to be illegal or unenforceable, all other terms and provisions hereof shall nevertheless remain effective and shall be enforced to the fullest extent permitted by law.
8. The use of the singular herein shall include the plural. The obligation of two or more parties shall be joint and several.
9. This Guaranty is governed and shall be construed by the laws of the State of Arizona (without regard to conflict of laws rules), and Guarantors consent to jurisdiction and venue in the federal and state courts in Phoenix, Arizona. If either party hereto participates in an action against the other party arising out or in connection with this Guaranty, the prevailing party shall be entitled to recover from the other party the prevailing party’s reasonable attorneys’ fees, collection costs and other costs incurred in connection with such action.
10. Until all indebtedness and obligations of Tenant to Landlord shall be paid and performed in full under the Lease, Guarantors shall have no right of subrogation and waives any right to enforce any remedy which Guarantors now have or may hereafter have against Tenant.
11. Guarantors agree that to the extent Tenant or Guarantors make any payment to Landlord, and all or any part of such payment is subsequently invalidated, declared to be fraudulent, or preferential, set aside or required to be repaid by Landlord or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise (any such payment is hereinafter referred to as a “Preferential Payment”), then this Guaranty shall continue to be effective or shall be reinstated, as the case may be, and, to the extent of such payment or repayment by Landlord, the debt, indebtedness, or obligation or part thereof intended to be satisfied by such Preferential Payment shall be revived and continued in full force and effect as if said Preferential Payment had not been made.
12. Guarantors agree that any indebtedness or obligations of Tenant now or hereafter held by or payable to Guarantors (or any of them) are hereby and shall be unconditionally subordinated to the debt, indebtedness and obligations owing to Landlord under the Lease and under this Guaranty, and to the rights of Landlord thereunder and hereunder. Guarantors agree that all existing and future indebtedness owing from Tenant to Guarantor shall not, without the prior written consent of Landlord, be paid in whole or in part, nor will Guarantor accept payment of or on account of any such subordinated indebtedness, while this Guaranty is in effect. Each payment by Tenant to Guarantor in violation of this Guaranty shall be received by Guarantor expressly in trust for Landlord and shall be paid to Landlord immediately on account of the debt, indebtedness and obligations owing to Landlord under this Guaranty. No such payment shall reduce or affect in any manner the liability of Guarantor under this Guaranty. To the extent Guarantors’ waiver of its rights of subrogation, reimbursement or contribution as set forth in this Guaranty is found by a court of competent jurisdiction to be void or voidable for any reason, Guarantors agree that Guarantors’ rights of subrogation and reimbursement against Tenant and Guarantors’ right of subrogation against any collateral or security shall be unconditionally junior and subordinate to Landlord’s rights against Tenant and to Landlord’s right, title and interest in such collateral or security, and Guarantors’ right of contribution against any other guarantor or pledgor shall be unconditionally junior and subordinate to Landlord’s rights against such other guarantor or pledgor.
13. Guarantors shall promptly (but in no event later than seven (7) days after request by Landlord) provide Landlord, from time to time, upon request by Landlord, with complete and comprehensive personal financial information and statements regarding Guarantors’ wealth, liabilities, income and other financial matters pertinent to Guarantors (in form reasonably acceptable to Landlord), all of which shall be certified by Guarantors’ to be true and complete in all respects as of the date of such statements, and if requested by Landlord, such personal financial statements shall be audited and certified for the benefit of Landlord, at Guarantors’ cost, by an independent certified accountant acceptable to Landlord.
14. Any death or incapacity of either Guarantors shall constitute a breach and default under the Lease and this Guaranty, unless the surviving Guarantor shall substitute the deceased or incapacitated Guarantor with a replacement Guarantor acceptable to Landlord within a period of ten (10) days of such death or incapacity.
15. In no event may Guarantors assign, encumber, pledge, lien, transfer, sell or convey (directly or indirectly or by operation of law) any of Guarantors’ right, title and interest in and to any of Guarantors’ ownership interests of Tenant. Guarantors represent and warrant that as of the date of this Guaranty, Guarantors own, free and clear of all demands, liens, security interests, pledges, and claims, 100% of the issued and outstanding ownership interests of Tenant.
16. The obligations of Guarantors hereunder shall survive and continue in full force and effect until payment in full and performance of all duties, obligations and liabilities of Tenant under the Lease and of Guarantors under this Guaranty (hereinafter called the “Indebtedness”), notwithstanding: (a) any release or termination of the liability of Tenant or any other guarantor, by express or implied agreement with Landlord or by operation of law; (b) the Indebtedness or any part thereof is deemed to have been paid or discharged by operation of law or some act or agreement of Landlord; (c) recovery upon the Indebtedness may be or hereafter becomes barred by any statutes of limitation, by bankruptcy, by insolvency, by reorganization, or any other means; or (d) the Indebtedness may be or hereafter becomes unenforceable or invalid.
17. Upon the occurrence of an uncured default under the Lease or this Guaranty, Guarantor shall (or cause its applicable Affiliate to) take all steps necessary to name and appoint the requisite number of Landlord’s individual designee(s) in order to establish a majority position on the Board of Directors, as Director(s) of CJK, Inc. (the “Designated Director(s)”), the licensed medical marijuana non-profit entity recognized by the Arizona Department of Health Services under the Arizona Medical Marijuana Act. In addition, the Board of Directors of CJK, Inc. shall: (i) prepare, execute and submit for approval to the Arizona Corporation Commission, Articles of Amendment to the Articles of Incorporation, evidencing the appointment of the Designated Director(s); (ii) modify the Bylaws evidencing the addition of the Designated Director(s) and stipulate that all actions and decisions regarding the Leased Premises this Agreement and anything related to the operation, administration and management of the Leased Premises shall require Director Approval (as herein defined). For purposes herein “Director Approval” shall mean shall require the consent and approval of a majority of the Directors of CJK, Inc. (“Majority of the Directors”); provided, however, in all circumstances, the Majority of the Directors must also include the affirmative approval of the Designated Director(s).
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Samples: Triple Net Lease Agreement (Zoned Properties, Inc.)
