GUARANTY OF LEASE. THIS GUARANTY OF LEASE (“Guaranty”) is entered into as of July 5, 2019, by Ascend Wellness Holdings, LLC, an Illinois limited liability company (“Guarantor”), for the benefit of LCR 1014 EASTPORT PLAZA, LLC (“Lessor”), with reference to the following facts: Lessor and HealthCentral Illinois Holdings, LLC (“Lessee”), have entered or will enter into a lease of even date herewith (the “Lease”). Capitalized terms used but not otherwise defined herein shall have the same meaning ascribed to them in the Lease. By its covenants herein set forth, Guarantor has induced Lessor to enter into the Lease, which was made and entered into in consideration for Guarantor’s said covenants. Subject to the terms set forth herein, Guarantor unconditionally guarantees, without deduction by reason of setoff, defense or counterclaim, to Lessor and its successors and assigns the full and punctual payment (and not merely the collectability), performance and observance by Lessee, of all of the amounts, terms, covenants and conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed. Notwithstanding the foregoing, in no event shall the scope of Guarantor’s obligations exceed Lessee’s obligations under the Lease except to the extent Lessee is relieved of any such obligation by reason of any bankruptcy or other like filing or order. If Lessee shall at any time default in the punctual payment, performance and observance of any of the amounts, terms, covenants or conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed (after applicable notice and cure period), Guarantor will pay, keep, perform and observe same, as the case may be, in the place and stead of Lessee. Guarantor shall also pay to Lessor all reasonable and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessor, or its successors or assigns, consisting of a waiver of any of the terms or conditions of the Lease, the giving of any consent to any matter or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunder. The obligations of Guarantor hereunder shall not be released by Lessor’s receipt, application or release of any security given for the performance and observance of any covenant or condition in the Lease contained on Lessee’s part to be performed or observed, nor by any modification of the Lease, regardless of whether Guarantor consents thereto or receives notice thereof. The liability of Guarantor hereunder shall in no way be affected by: (a) the release or discharge of Lessee in any creditor’s, receivership, bankruptcy or other proceeding; (b) the impairment, limitation or modification of the liability of Lessee or the estate of Lessee in bankruptcy, or of any remedy for the enforcement of Lessee’s liability under the Lease resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other statutes or from the decision of any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Lessee; (e) any disability or other defense of Lessee; (f) the cessation from any cause whatever of the liability of Lessee; (g) the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the Lease. If Lessee shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any court, Guarantor shall pay to Lessor the amount of all accrued, unpaid and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any of the terms, covenants or conditions of the Lease or of this Guaranty. Guarantor may be joined in any action against Lessee in connection with the obligations of Lessee under the Lease and recovery may be had against Guarantor in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions in the Lease on Lessee’s part to be performed and observed are fully performed and observed, Guarantor: (a) shall have no right of subrogation against Lessee by reason of any payment or performance by Guarantor hereunder; and (b) subordinates any liability or indebtedness of Lessee now or hereafter held by Guarantor to the obligations of Lessee to Lessor under the Lease. This Guaranty shall apply to the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following the Lease term granted under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension of the Lease term resulting from an amendment to the Lease between Lessor and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of any defaults by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Lease. In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all of the undersigned; (b) each provision of this Guaranty shall be binding on each one of the undersigned, who shall be jointly and severally liable hereunder; and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery of Guarantor’s last published financial information shall be satisfactory for purposes of this Paragraph. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may not be changed, modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by Guarantor and Lessor. This Guaranty shall be governed by and construed in accordance with the laws of the State of Illinois. Every notice, demand or request (collectively “Notice”) required hereunder or by law to be given by either party to the other shall be in writing. Notices shall be given by personal service or by United States certified or registered mail, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served at the address indicated below or such other address as the party to be served may from time to time designate in a Notice to the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor in the state courts of the State of Illinois. Guarantor hereby consents to the jurisdiction of such Court for such purposes. Any notice, complaint or legal process so delivered shall constitute adequate notice and service of process for all purposes and shall subject Guarantor to the jurisdiction of such Court for purposes of adjudicating any matter related to this Guaranty. Lessor and Guarantor hereby waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease, or this Guaranty. This Guaranty may be assigned in whole or part by Lessor upon written notice to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld in Lessor’s sole and absolute discretion. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties hereto.
Appears in 2 contracts
Samples: Commercial Lease (Ascend Wellness Holdings, LLC), Commercial Lease (Ascend Wellness Holdings, LLC)
GUARANTY OF LEASE. THIS GUARANTY OF LEASE (“Guaranty”) is entered into as of July 5, 2019, by Ascend Wellness Holdings, LLC, an Illinois limited liability company (“Guarantor”), for the benefit of LCR 1014 EASTPORT PLAZAIn order to induce 3000 X Xxx 00, LLC (“hereinafter "Lessor”") to execute that certain Lease Agreement (the "Lease") by and between Lessor and Goldleaf Distribution (hereinafter "Lessee") and Kona Gold Solutions Inc (hereinafter "Guarantors") for Premises located at 3000 Xxx 00, Xxxxx, Xxxxx Xxxxxxxx (the "Premises"), with reference the undersigned hereby unconditionally guarantees the payment and performance of, and agrees to the following facts: Lessor pay and HealthCentral Illinois Holdingsperform as a primary obligor, LLC all liabilities, obligations, and duties (“Lessee”), have entered or will enter into a lease of even date herewith (the “Lease”). Capitalized terms used including but not otherwise limited to, payment of (as defined herein shall have the same meaning ascribed to them in the Lease) Base Rent, Additional Rent, and any late fees that may incur) imposed upon Lessee for the lease between Lessor and Lessee dated _______________(the "Lease"). By its covenants herein set forthThe undersigned hereby waives notice of acceptance of this guaranty and all other notices in connection herewith or in connection with the liabilities, Guarantor has induced Lessor to enter into obligations and duties guaranteed hereby, including notices of default by Lessee under the Lease, and waives diligence, presentment, and suit on the part of Lessor in the enforcement of any liability, obligation, or duty guaranteed hereby. The undersigned further agrees that Lessor shall not be first required to enforce against Lessee or any other person any liability, obligation, or duty guaranteed hereby before seeking enforcement thereof against the undersigned. Suit may be brought and maintained against the undersigned by Lessor to enforce any liability, obligation, or duty guaranteed hereby without joinder of Lessee or any other person. The liability of the undersigned shall not be affected by any indulgence, compromise, settlement, or variation of terms which was made may be extended to Lessee by Lessor or agreed upon by Lessor and entered into in consideration for Guarantor’s said covenantsLessee. Subject to the terms set forth herein, Guarantor unconditionally guaranteesLessor and Lessee, without deduction notice to or consent by reason of setoffthe undersigned, defense or counterclaim, to Lessor and its successors and assigns the full and punctual payment (and not merely the collectability), performance and observance by Lessee, of all of the amounts, terms, covenants and conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed. Notwithstanding the foregoing, in no event shall the scope of Guarantor’s obligations exceed Lessee’s obligations under the Lease except to the extent Lessee is relieved of any such obligation by reason of any bankruptcy or other like filing or order. If Lessee shall may at any time default in the punctual paymentor times enter into such modifications, performance and observance of any of the amountsextensions, termsamendments, or other covenants or conditions in respecting the Lease contained on Lessee’s part to be paidas they may deem appropriate, kept, performed and observed (after applicable notice and cure period), Guarantor will pay, keep, perform and observe same, as the case may be, in the place and stead of Lessee. Guarantor shall also pay to Lessor all reasonable and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessor, or its successors or assigns, consisting of a waiver of any of the terms or conditions of the Lease, the giving of any consent to any matter or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunder. The obligations of Guarantor hereunder undersigned shall not be released by Lessor’s receiptthereby, application or release of any security given but shall continue to be fully liable for the payment and performance of all liabilities, obligations, and observance duties of any covenant or condition in the Lease contained on Lessee’s part to be performed or observed, nor by any modification of Lessee under the Lease, regardless of whether Guarantor consents thereto as so modified, extended or receives notice thereofamended. The liability of Guarantor the undersigned hereunder shall in no way be affected by: by (a) the release or discharge of Lessee in any creditor’s, receivership, bankruptcy bankruptcy, or other proceedingsimilar proceedings; (b) the impairment, limitation limitation, or modification of the liability of Lessee or the estate of Lessee in bankruptcy, bankruptcy or of any remedy for the enforcement of Lessee’s 's liability under the Lease resulting from the operation of any present or future provision provisions of the Federal Bankruptcy Code or other statutes statute or from the decision of any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Lessee; or (e) any disability or other defense of Lessee; (f) the cessation from any cause whatever of the liability of Lessee; (g) the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the Lease. If Lessee shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any court, Guarantor shall pay to Lessor the amount of all accrued, unpaid and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any of the terms, covenants or conditions of the Lease or of this Guaranty. Guarantor may be joined in any action against Lessee in connection with the obligations of Lessee under the Lease and recovery may be had against Guarantor in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions in the Lease on Lessee’s 's part to be performed and observed are fully performed and observed, Guarantor: the undersigned (a) shall have no right of subrogation against Lessee by reason of any payment payments or acts of performance by Guarantor the undersigned in compliance with the obligations of the undersigned hereunder; (b) waives any right to enforce any remedy which undersigned now or hereafter shall have against Lessee by reason of any one or more payments or acts of performance in compliance with the obligations of the undersigned hereunder; and (bc) subordinates any liability or indebtedness of Lessee now or hereafter held by Guarantor the undersigned to the obligations of Lessee to Lessor under the Lease. This Guaranty shall apply to the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following the Lease term granted under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension of the Lease term resulting from an amendment to the Lease between Lessor and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of any defaults by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Lease. In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all of the undersigned; (b) each provision of this Guaranty agreement shall be binding on each one upon the undersigned and the successors and assigns legal representatives of the undersigned, who and shall be jointly inure to the benefit of Lessor and severally liable hereunder; its successors and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery of Guarantor’s last published financial information shall be satisfactory for purposes of this Paragraphassigns. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may not be changed, modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by Guarantor and Lessor. This Guaranty shall be governed by and construed enforced in accordance with the laws of the State of IllinoisSouth Carolina. Every noticeThis guaranty of lease may not be changed or terminated orally, demand and any modifications or request (collectively “Notice”) required hereunder or by law to be given by either party to the other amendments hereto shall be in writingwriting and signed by all parties. Notices shall be given by personal service or by United States certified or registered mailEXECUTED this 21 day of May, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served at the address indicated below or such other address as the party to be served may from time to time designate in 2019. GUARANTORS: a Notice to the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor company in the state courts of Florida FID #: 40-0000000 THIS FIRST AMENDMENT TO LEASE AGREEMENT is to be attached to and form a part of a certain Lease (which together with any amendments, modifications, and extensions thereof is hereinafter called the State “Lease Agreement”) made the 22nd day of Illinois. Guarantor hereby consents to May, 2019, between 3000 Xxxxx Xxx 14, LLC, as Lessor, and Goldleaf Distribution, LLC, as Lessee, covering the jurisdiction premises known as 3000 X. Xxx 00, Xxxxx, Xxxxx Xxxxxxxx, consisting of such Court for such purposes. Any notice, complaint or legal process so delivered shall constitute adequate notice 15,000 square feet within a 30,000 square foot building and service of process for all purposes and shall subject Guarantor to appurtenances thereon (hereinafter called the jurisdiction of such Court for purposes of adjudicating any matter related to this Guaranty. Lessor and Guarantor hereby waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease, or this Guaranty. This Guaranty may be assigned in whole or part by Lessor upon written notice to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld in Lessor’s sole and absolute discretion. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties hereto“Leased Premises”).
Appears in 1 contract
Samples: Triple Net Lease Agreement (Kona Gold Solutions, Inc.)
GUARANTY OF LEASE. THIS GUARANTY OF LEASE is attached to and is hereby made a part of that certain Lease dated July 8, 1999 between NEW YORK LIFE INSURANCE COMPANY (“Guaranty”) is entered into as of July 5, 2019, by Ascend Wellness Holdings, LLC, an Illinois limited liability company (“Guarantor”"Landlord"), for and PURE WATER CORPORATION an AquaSource Company, a Delaware corporation ("Tenant"). FOR VALUE RECEIVED and in consideration of and as an inducement to Landlord entering into this Lease, the benefit of LCR 1014 EASTPORT PLAZA, LLC undersigned guarantor (“Lessor”"Guarantor"), with reference AquaSource, Inc., unconditionally and continuously guarantees to the following facts: Lessor and HealthCentral Illinois HoldingsLandlord, LLC (“Lessee”), have entered or will enter into a lease of even date herewith (the “Lease”). Capitalized terms used but not otherwise defined herein shall have the same meaning ascribed to them in the Lease. By its covenants herein set forth, Guarantor has induced Lessor to enter into the Lease, which was made and entered into in consideration for Guarantor’s said covenants. Subject to the terms set forth herein, Guarantor unconditionally guarantees, without deduction by reason of setoff, defense or counterclaim, to Lessor and its successors and assigns assigns, and acknowledging that Guarantor receives an economic benefit from Tenant's entering into this Lease, the full and punctual payment (and not merely the collectability), timely performance and observance axx xxxervance by Lessee, Tenant of all the terms and conditions of the amounts, terms, covenants and conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed. Notwithstanding the foregoing, in no event shall the scope of Guarantor’s obligations exceed Lessee’s obligations under the Lease except to the extent Lessee is relieved of any such obligation by reason of any bankruptcy or other like filing or order. If Lessee shall at any time default in the punctual payment, performance and observance of any of the amounts, terms, covenants or conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed (after applicable notice by Tenant. This Guaranty and cure period), Guarantor will pay, keep, perform and observe same, as the case may be, in the place and stead of Lessee. Guarantor shall also pay to Lessor all reasonable and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessor, or its successors or assigns, consisting of a waiver of any of the terms or conditions of the Lease, the giving of any consent to any matter or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunder. The obligations of Guarantor hereunder shall not be released terminated or impaired by Lessor’s receipt, application or release reason of the granting by Landlord of any security given for indulgences to Tenant or the assertion by Landlord against Tenant of any of Landlord's rights or remedies under the Lease, or by the relief of Tenant from any of Tenant's obligations under the lease by operation of law or otherwise, whether or not Guarantor has received notice of same. Guarantor waives all suretyship defences and waives notice of any breach by Tenant. This Guaranty shall continue in full force and effxxx xx to any renewal, amendment, modification, extension, assignment or transfer of the Lease or any subletting of the Lease premises, whether or not Guarantor shall have received notice of or consented to the same. The liability of Guarantor under this Guaranty is primary and absolute, and Landlord may at its opinion proceed against guarantor without proceeding against Tenant. Any action against Guarantor may be brought in the county in which the Lease premises are located, or in King County, Washington, at Landlord's option. Landlord's delay or failure to insist upon the strict performance and or observance of any covenant obligation of Tenant under the Lease or to execute any right or remedy available under the Lease or at law or in equity, shall not be construed to be a waiver of Landlord's prerogative to insist upon such strict performance or observance or to exercise any such right or remedy. Receipt by Landlord of rent or other payment with knowledge of a breach of any term or condition in of the Lease contained on Lessee’s part shall not be construed to be performed or observed, nor by any modification a waiver of the Lease, regardless of whether Guarantor consents thereto or receives notice thereofsuch breach. The liability of Guarantor hereunder shall in no way not be affected or limited by: (a) the release or discharge of Lessee Tenant in any creditor’screditors', receivership, bankruptcy or other proceedingproceedings; (b) the impairment, limitation or modification of the liability of Lessee the Tenant or the estate of Lessee the Tenant in bankruptcy, or of any remedy for the enforcement of Lessee’s Tenant's said liability under the Lease Lease, resulting from the operation of any present or future provision of the Federal Bankruptcy Code federal bankruptcy laws or other statutes or from the decision of in any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Lessee; (e) any disability or other defense defence of LesseeTenant; (f) or the cessation cessation, from any cause whatever whatsoever, of the liability of Lessee; (g) the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the LeaseTenant. If Lessee shall become insolvent or be adjudicated bankruptUntil all terms, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any court, Guarantor shall pay to Lessor the amount of all accrued, unpaid conditions and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion agreements of the Lease term reduced are fully performed and observed by Tenant; Guarantor hereby waives the right to present-day value; enforce any claim, right or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with remedy which Guarantor as Lessee thereunder. Any operation now has or hereafter shall have against Tenant by reason of any present one or future debtor’s relief act more payments or similar act, or law or decision acts of any court, shall performance in no way affect compliance with the obligations of Guarantor or Lessee to perform any of the termshereunder, covenants or conditions of the Lease or of this Guaranty. and Guarantor may be joined in any action against Lessee in connection with the obligations of Lessee under the Lease and recovery may be had against Guarantor in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions in the Lease on Lessee’s part to be performed and observed are fully performed and observed, Guarantor: (a) shall have no right of subrogation against Lessee by reason of any payment or performance by Guarantor hereunder; and (b) hereby subordinates any liability or indebtedness of Lessee Tenant now or hereafter held by Guarantor to the obligations of Lessee Tenant to Lessor Landlord under the Lease. This Guaranty shall apply inure to the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following the Lease term granted under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions benefit of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension of the Lease term resulting from an amendment to the Lease between Lessor Landlord, its affiliates, successors and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised by said Third Party Assigneeassigns, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of any defaults by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Lease. In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all of the undersigned; (b) each provision of this Guaranty shall be binding on each one of upon the undersigned, who shall be jointly successors and severally liable hereunder; and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery assigns of Guarantor’s last published financial information shall be satisfactory for purposes of this Paragraph. This instrument constitutes the entire agreement between Lessor Guaranty is irrevocable and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may not be changed, modifiedaffected, discharged or terminated orally or in any manner other than by an agreement in writing signed by Guarantor and LessorLandlord. This Guaranty Guarantor shall be governed pay all costs and expenses paid or incurred by and construed Landlord in accordance with the laws of the State of Illinois. Every notice, demand or request (collectively “Notice”) required hereunder or by law to be given by enforcing either party to the other shall be in writing. Notices shall be given by personal service or by United States certified or registered mail, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served at the address indicated below or such other address as the party to be served may from time to time designate in a Notice to the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor in the state courts of the State of Illinois. Guarantor hereby consents to the jurisdiction of such Court for such purposes. Any notice, complaint or legal process so delivered shall constitute adequate notice and service of process for all purposes and shall subject Guarantor to the jurisdiction of such Court for purposes of adjudicating any matter related to this Guaranty. Lessor and Guarantor hereby waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease, or this Guaranty, including court costs and a reasonable amount for legal services performed by counsel, whether employed or retained by Landlord. This Guaranty may be assigned in whole or part by Lessor upon written notice to GuarantorDATED this ___day of ______________, but it may not be assigned by Guarantor without Lessor’s prior written consent19___. AqxxXxxxxx, which may be withheld in Lessor’s sole and absolute discretionInc. _______________________________ (signature) _______________________________ (Name - PLEASE PRINT) CORPORATE ADDRESS ___________________________________ ___________________________________ ___________________________________ CORPORATE TELEPHONE: ___________________________________ AQUASOURCE LNC. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties hereto.________________________________________________________________________________
Appears in 1 contract
Samples: Lease Agreement (Sparkling Spring Water Holdings LTD)
GUARANTY OF LEASE. THIS GUARANTY OF LEASE Concurrently with the execution of this Lease by Tenant, INFOCROSSING, INC., a Delaware corporation (“Guaranty”) is entered into as of July 5, 2019, by Ascend Wellness Holdings, LLC, an Illinois limited liability company (“Guarantor”"Infocrossing"), for the benefit of LCR 1014 EASTPORT PLAZA, LLC (“Lessor”), with reference to the following facts: Lessor and HealthCentral Illinois Holdings, LLC (“Lessee”), have entered or will enter into a lease of even date herewith (the “Lease”). Capitalized terms used but not otherwise defined herein shall have the same meaning ascribed to them in the Lease. By its covenants herein set forth, Guarantor has induced Lessor to enter into the Lease, which was made and entered into in consideration for Guarantor’s said covenants. Subject to the terms set forth herein, Guarantor unconditionally guarantees, without deduction by reason of setoff, defense or counterclaim, to Lessor and its successors and assigns the full and punctual payment (and not merely the collectability), performance and observance by Lessee, of all of the amounts, terms, covenants and conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed. Notwithstanding the foregoing, in no event shall the scope of Guarantor’s obligations exceed Lessee’s obligations under the Lease except to the extent Lessee is relieved of any such obligation by reason of any bankruptcy or other like filing or order. If Lessee shall at any time default in the punctual payment, performance and observance of any of the amounts, terms, covenants or conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed (after applicable notice and cure period), Guarantor will pay, keep, perform and observe same, as the case may be, in the place and stead of Lessee. Guarantor shall also pay to Lessor all reasonable and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessor, or its successors or assigns, consisting of a waiver of any of the terms or conditions of the Lease, the giving of any consent to any matter or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunder. The obligations of Guarantor hereunder shall not be released by Lessor’s receipt, application or release of any security given for the performance and observance of any covenant or condition in the Lease contained on Lessee’s part to be performed or observed, nor by any modification of the Lease, regardless of whether Guarantor consents thereto or receives notice thereof. The liability of Guarantor hereunder shall in no way be affected by: (a) the release or discharge of Lessee in any creditor’s, receivership, bankruptcy or other proceeding; (b) the impairment, limitation or modification of the liability of Lessee or the estate of Lessee in bankruptcy, or of any remedy for the enforcement of Lessee’s liability under the Lease resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other statutes or from the decision of any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Lessee; (e) any disability or other defense of Lessee; (f) the cessation from any cause whatever of the liability of Lessee; (g) the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the Lease. If Lessee shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any court, Guarantor shall pay to Lessor the amount of all accrued, unpaid and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any of the terms, covenants or conditions of the Lease or of this Guaranty. Guarantor may be joined in any action against Lessee in connection with the obligations of Lessee under the Lease and recovery may be had against Guarantor in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions Guaranty in the Lease on Lessee’s part form attached hereto as Exhibit F to be performed and observed are fully performed and observed, Guarantor: Landlord (a) shall have no right of subrogation against Lessee by reason of any payment or performance by Guarantor hereunder; and (b) subordinates any liability or indebtedness of Lessee now or hereafter held by Guarantor to the obligations of Lessee to Lessor under the Lease. This Guaranty shall apply to the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following the Lease term granted under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension of the Lease term resulting from an amendment to the Lease between Lessor and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this "Guaranty, Lessor shall be required to deliver written notice of any defaults by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Lease"). In the event of any litigation between default or breach of Tenant's obligations under this Lease, Landlord may proceed directly against Guarantor and Lessor with respect without first exhausting Landlord's remedies against Tenant or any security held by Landlord. In addition to the subject matter hereofall other events of Tenant default hereunder, the unsuccessful party in such litigation parties acknowledge and agree that the Guarantor's guaranty of this Lease comprises part of the material consideration for Landlord's agreement to this Lease, and the following shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantor, also constitute events of default under this Lease: (a) the term “termination of Guarantor”, as used herein, shall include all 's liability with respect to this Lease other than in accordance with the terms of the undersignedGuaranty; (b) each provision Guarantor's becoming insolvent or the subject of this Guaranty shall be binding on each one of the undersigned, who shall be jointly and severally liable hereundera bankruptcy filing; and or (c) Lessor shall have Guarantor's willful breach of its guaranty obligation on an anticipatory breach basis, where such anticipatory breach would reasonably indicate Guarantor's inability to satisfy Guarantor's obligations as they become due, including, without limitation, Guarantor's claim of any defense waived by Guarantor under the right to join one or all of them in any proceeding or to proceed against them in any orderGuaranty. Within fifteen Unless Tenant, within sixty (1560) days after Lessor’s following written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements notice by or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery on behalf of Guarantor’s last published financial information shall be satisfactory for purposes Landlord to Tenant of this Paragraph. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may not be changed, modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by Guarantor and Lessor. This Guaranty shall be governed by and construed in accordance with the laws of the State foregoing events, provides Landlord with an alternative assurance of Illinoissecurity reasonably acceptable to Landlord. Every notice, demand Landlord may exercise any and all remedies for a Tenant default hereunder without requirement for any additional notice or request (collectively “Notice”) required hereunder or by law to be given by either party to the other shall be in writing. Notices shall be given by personal service or by United States certified or registered mail, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served at the address indicated below or such other address as the party to be served may from time to time designate in a Notice to the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor in the state courts of the State of Illinois. Guarantor hereby consents to the jurisdiction of such Court for such purposes. Any notice, complaint or legal process so delivered shall constitute adequate notice and service of process for all purposes and shall subject Guarantor to the jurisdiction of such Court for purposes of adjudicating any matter related to this Guaranty. Lessor and Guarantor hereby waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease, or this Guaranty. This Guaranty may be assigned in whole or part by Lessor upon written notice to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld in Lessor’s sole and absolute discretion. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties heretocure period.
Appears in 1 contract
Samples: Lease (Infocrossing Inc)
GUARANTY OF LEASE. THIS GUARANTY OF LEASE FOR VALUE RECEIVED and in consideration for and as an inducement to CA-LARKSPUR LANDING OFFICE PARK LIMITED PARTNERSHIP, a Delaware limited partnership ("Landlord") to lease certain real property to DIGITAL DOMAIN PRODUCTIONS, INC., a Delaware corporation, as tenant ("Tenant"), pursuant to a lease dated ________, 2011 (the “Guaranty”Lease") is entered into as of July 5by and between Landlord and Tenant, 2019the undersigned, by Ascend Wellness HoldingsDIGITAL DOMAIN MEDIA GROUP, LLCINC., an Illinois limited liability company a Florida corporation (“Guarantor”), for ) does hereby unconditionally and irrevocably guarantee to Landlord the benefit punctual payment of LCR 1014 EASTPORT PLAZA, LLC all Rent (“Lessor”), with reference to the following facts: Lessor and HealthCentral Illinois Holdings, LLC (“Lessee”), have entered or will enter into a lease of even date herewith (the “Lease”). Capitalized terms used but not otherwise as such term is defined herein shall have the same meaning ascribed to them in the Lease. By its covenants herein set forth, Guarantor has induced Lessor ) payable by Tenant under the Lease throughout the term of the Lease and any and all renewals and extensions thereof in accordance with and subject to enter into the provisions of the Lease, which was made and entered into in consideration for Guarantor’s said covenants. Subject to the terms set forth herein, Guarantor unconditionally guarantees, without deduction by reason of setoff, defense or counterclaim, to Lessor and its successors and assigns the full and punctual payment (and not merely the collectability), performance and observance by Lessee, of all other terms, covenants, conditions and agreements therein provided to be performed and observed by Tenant under the terms of the amountsLease, for which the undersigned shall be jointly and severally liable with Tenant. If any default on the part of Tenant shall occur under the Lease, the undersigned does hereby covenant and agree to pay to Landlord upon demand in each and every instance such sum or sums of money and to perform each and every covenant, condition and agreement under the Lease as Tenant is and shall become liable for or obligated to pay or perform under the Lease, together with the costs reasonably incurred by Landlord in connection therewith, including, without limitation, reasonable attorneys' fees. Such payments of Rent and other sums shall be made monthly or at such other intervals as the same shall or may become payable under the Lease, including any accelerations thereof, all without requiring any notice from Landlord (other than any notice required by the Lease) of such non-payment or non performance, all of which the undersigned hereby expressly waives. The maintenance of any action or proceeding by Landlord to recover any sum or sums that may be or become due under the Lease and to secure the performance of any of the other terms, covenants and conditions of the Lease shall not preclude Landlord from thereafter instituting and maintaining subsequent actions or proceedings for any subsequent default or defaults of Tenant under the Lease. The undersigned does hereby consent that without affecting the liability of the undersigned under this Guaranty and without notice to the undersigned, time may be given by Landlord to Tenant for payment of Rent and such other sums and performance of said other terms, covenants and conditions, or any of them, and such time extended and indulgence granted, from time to time, or Tenant may be dispossessed or Landlord may avail itself of or exercise any or all of the rights and remedies against Tenant provided by law or by the Lease, and may proceed either against Tenant alone or jointly against Tenant and the undersigned or against the undersigned alone without first prosecuting or exhausting any remedy or claim against Tenant. The undersigned does hereby further consent to any subsequent change, modification or amendment of the Lease in any of its terms, covenants or conditions, or in the Rent payable thereunder, or in the premises demised thereby, or in the term thereof, and to any assignment or assignments of the Lease, and to any subletting or sublettings of the premises demised by the Lease, and to any renewals or extensions thereof, all of which may be made without notice to or consent of the undersigned and without in any manner releasing or relieving the undersigned from liability under this Guaranty. The undersigned does hereby agree that the bankruptcy of Tenant shall have no effect on the obligations of the undersigned hereunder. The undersigned does hereby further agree that in respect of any payments made by the undersigned hereunder, the undersigned shall not have any rights based on suretyship, subrogation or otherwise to stand in the place of Landlord so as to compete with Landlord as a creditor of Tenant, unless and until all claims of Landlord under the Lease contained shall have been fully paid and satisfied. The undersigned hereby waives and agrees not to assert: (a) any right to require Landlord to proceed against Tenant, or any other guarantor or person or to pursue any other security or remedy before proceeding against the undersigned; (b) any defense based on Lesseethe validity or enforceability of the Lease; (c) any right or defense that may arise by reason of the incapacity, lack of authority, death or disability of Tenant or any other person; and (d) any right or defense arising by reason of the absence, impairment, modification, limitation, destruction or cessation (in bankruptcy, by an election of remedies, or otherwise) of the liability of Tenant of the subrogation rights of the undersigned or of the right of the undersigned to proceed against Tenant for reimbursement. The undersigned waives any right, statutory, or otherwise, for itself to require or for Tenant to require Landlord to apply rents received toward the obligations of the undersigned under this Guaranty, or to otherwise prioritize the receipt of rents as against the obligations of the undersigned under this Guaranty. The undersigned hereby waives and agrees not to assert (x) any right or defense based on the absence of any or all presentments, demands (including demands for performance), notices (including notices of any adverse change in the financial status of Tenant, notices of any other facts which increase the risk to the undersigned, notices of non-performance and notices of acceptance of this Guaranty) and protests of each and every kind; (y) the defense of any statute of limitations in any action under or related to this Guaranty or the Lease; and (z) any right or defense based on a lack of diligence or failure or delay by Landlord in enforcing its rights under this Guaranty or the Lease. The undersigned hereby waives and agrees not to assert or take advantage of any right to (i) exoneration if Landlord’s part actions shall impair any security or collateral of the undersigned; (ii) any security or collateral held by Landlord; (iii) require Landlord to be paidproceed against or exhaust any security or collateral before proceeding against the undersigned; and (iv) require Landlord to pursue any right or remedy for the benefit of the undersigned. Without limiting the generality of any of the covenants and agreements of the undersigned set forth in this Guaranty, keptthe undersigned hereby waives any and all benefits of the second sentence of Section 2822(a) and the provisions of Sections 2809, performed 2810, 2819, 2822, 2845, 2848, 2849 and observed2850 of the California Civil Code and any similar or analogous statutes of California or any jurisdiction. Notwithstanding Until all the foregoing, in no event shall the scope of Guarantor’s obligations exceed LesseeTenant’s obligations under the Lease except to the extent Lessee is relieved of any such obligation by reason of any bankruptcy or other like filing or order. If Lessee shall at any time default in the punctual payment, performance and observance of any of the amounts, terms, covenants or conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed (after applicable notice and cure period), Guarantor will pay, keep, perform and observe same, as the case may be, in the place and stead of Lessee. Guarantor shall also pay to Lessor all reasonable and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessor, or its successors or assigns, consisting of a waiver of any of the terms or conditions of the Leaseare fully performed, the giving of any consent to any matter or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunder. The obligations of Guarantor hereunder shall not be released by Lessor’s receipt, application or release of any security given for the performance and observance of any covenant or condition in the Lease contained on Lessee’s part to be performed or observed, nor by any modification of the Lease, regardless of whether Guarantor consents thereto or receives notice thereof. The liability of Guarantor hereunder shall in no way be affected by: (a) the release or discharge of Lessee in any creditor’s, receivership, bankruptcy or other proceeding; (b) the impairment, limitation or modification of the liability of Lessee or the estate of Lessee in bankruptcy, or of any remedy for the enforcement of Lessee’s liability under the Lease resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other statutes or from the decision of any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Lessee; (e) any disability or other defense of Lessee; (f) the cessation from any cause whatever of the liability of Lessee; (g) the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the Lease. If Lessee shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any court, Guarantor shall pay to Lessor the amount of all accrued, unpaid and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any of the terms, covenants or conditions of the Lease or of this Guaranty. Guarantor may be joined in any action against Lessee in connection with the obligations of Lessee under the Lease and recovery may be had against Guarantor in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions in the Lease on Lessee’s part to be performed and observed are fully performed and observed, Guarantor: undersigned (a) shall have no right of subrogation or reimbursement against Lessee the Tenant by reason of any payment payments or acts of performance by Guarantor hereunder; and the undersigned under this Guaranty, (b) subordinates any liability or indebtedness of Lessee the Tenant now or hereafter held by Guarantor the undersigned to the obligations of Lessee the Tenant under, arising out of or related to Lessor under the Lease. This Guaranty shall apply to the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following the Lease term granted under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions Tenant’s use of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension of the Lease term resulting from an amendment to the Lease between Lessor and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease termPremises; and (bc) as a condition to acknowledges that the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice actions of Landlord may affect or eliminate any defaults by Lessee rights of subrogation or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Lease. In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all reimbursement of the undersigned; (b) each provision undersigned as against Tenant without any liability or recourse against Landlord. Neither this Guaranty nor any of the provisions hereof can be modified, waived or terminated, except by a written instrument signed by Landlord. The provisions of this Guaranty shall be binding on each one apply to, bind and inure to the benefit of the undersigned and Landlord and their respective heirs, legal representatives, successors and assigns. As used herein, the term “Tenant” means the Tenant specifically named in the Lease and also any assignee or subtenant of said Lease and any successor to the interests of said Tenant, assignee or sublessee of such Lease or any part thereof, whether by assignment, sublease or otherwise including, without limitation, any trustee in bankruptcy and any bankruptcy estate of Tenant, Tenant’s assignee or sublessee. The undersigned, who if there be more than one, shall be jointly and severally liable hereunder; , and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery of Guarantor’s last published financial information shall be satisfactory for purposes of such several liability the word "undersigned" wherever used herein shall be construed to refer to each of the undersigned parties separately, all in the same manner and with the same effect as if each of them had signed separate instruments, and this Paragraph. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may Guaranty shall not be changedrevoked or impaired as to any of such parties by the death of another party or by revocation or release of any obligations hereunder of any other party. If the undersigned is a corporation, modifiedeach individual executing this Guaranty on behalf of said corporation represents and warrants that he is duly authorized to execute and deliver this Guaranty on behalf of said corporation, discharged or terminated orally in accordance with a duly adopted resolution of the Board of Directors of said corporation or in accordance with the by-laws of said corporation, and that this Guaranty is binding upon said corporation in accordance with its terms. If Landlord should retain counsel and/or institute any manner suit against Guarantor to enforce this Guaranty or any covenants or obligations hereunder, then Guarantor shall pay to Landlord, upon demand, all reasonable attorneys’ fees, costs and expenses, including, without limitation, court costs, filing fees, recording costs, and all other than by an agreement costs and expenses incurred in writing signed by Guarantor and Lessorconnection therewith (all of which are referred to herein as “Enforcement Costs”), in addition to all other amounts due hereunder. This Guaranty shall be governed by and construed in accordance with the internal laws of the State of Illinois. Every notice, demand or request (collectively “Notice”) required hereunder or state where the premises demised by law to be given by either party to the other shall be in writing. Notices shall be given by personal service or by United States certified or registered mail, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served at the address indicated below or such other address as the party to be served may from time to time designate in a Notice to the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor in are located. For the state courts purpose solely of litigating any dispute under this Guaranty, the State of Illinois. Guarantor hereby consents undersigned submits to the jurisdiction of such Court for such purposesthe courts of said state. Any notice, complaint or legal process so delivered shall constitute adequate notice and service of process for all purposes and shall subject Guarantor to the jurisdiction of such Court for purposes of adjudicating The undersigned hereby waives any matter related to this Guaranty. Lessor and Guarantor hereby waive their respective rights right to trial by jury and further waives and agrees not to assert or take advantage of any cause defense based on the claim that any arbitration decision binding upon Landlord or Tenant is not binding on the undersigned. Any notice or other communication to be given to Landlord or the undersigned hereunder shall be in writing and sent in accordance with the notice provisions of actionthe Lease. Notices to Landlord shall be delivered to Landlord’s address set forth in the Lease. Notices to the undersigned shall be addressed as follows: __________________________________. In the event Guarantor’s notice address as set forth above changes, claim, counterclaim or cross-complaint Guarantor agrees to provide written notice to Landlord of such change in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out ofaddress. If Guarantor’s notice address is not filled in at the above blank, or in any way connected withif the Guarantor’s notice address is a post office box address, then, for all purposes under this Guaranty, Landlord may send all notices under this Guaranty to Guarantor, c/o Tenant, at the same notice address Landlord uses for the Tenant under the Lease, or this Guaranty. This Guaranty may and any notice delivered in accordance with the foregoing shall be assigned in whole or part by Lessor upon written notice deemed to have been properly delivered to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld in Lessor’s sole and absolute discretion. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties hereto.
Appears in 1 contract
GUARANTY OF LEASE. THIS GUARANTY OF LEASE (“Guaranty”) is entered into FOR VALUE RECEIVED, and in consideration for, and as of July 5, 2019, by Ascend Wellness Holdings, LLC, an Illinois limited liability company (“Guarantor”), inducement for the benefit of LCR 1014 EASTPORT PLAZA, LLC (“Lessor”), with reference to the following facts: Lessor and HealthCentral Illinois Holdings, LLC (“Lessee”), have entered or will XXX X. XXXXX INTEREST enter into a lease of even date herewith (the “Lease”). Capitalized terms used but not otherwise defined herein shall have lease") as landlord' with TMIRS Enterprises, Ltd db/a TaxMasters as "Tenant," the same meaning ascribed undersigned unconditionally guarantees to them in the Lease. By its covenants herein set forth, Guarantor has induced Lessor to enter into the Lease, which was made and entered into in consideration for Guarantor’s said covenants. Subject to the terms set forth herein, Guarantor unconditionally guarantees, without deduction by reason of setoff, defense or counterclaim, to Lessor and its successors and assigns Landlord the full and punctual payment (and not merely the collectability), performance and observance by Lessee, of all of the amounts, terms, covenants and conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed. Notwithstanding the foregoing, in no event shall the scope of Guarantor’s obligations exceed Lessee’s obligations under the Lease except to the extent Lessee is relieved of any such obligation by reason of any bankruptcy or other like filing or order. If Lessee shall at any time default in the punctual payment, timely performance and observance of any of all the amountscovenants, terms, covenants or conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed (after applicable notice and cure period), Guarantor will pay, keep, perform and observe same, as the case may be, in the place and stead of Lessee. Guarantor shall also pay to Lessor all reasonable and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessor, or its successors or assigns, consisting of a waiver of any of the terms or conditions of the Lease, the giving of any consent to any matter or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunder. The obligations of Guarantor hereunder shall not be released by Lessor’s receipt, application or release of any security given for the performance and observance of any covenant or condition in the Lease contained on Lessee’s part to be performed or observed, nor by any modification of the Lease, regardless of whether Guarantor consents thereto or receives notice thereof. The liability of Guarantor hereunder shall in no way be affected by: (a) the release or discharge of Lessee in any creditor’s, receivership, bankruptcy or other proceeding; (b) the impairment, limitation or modification of the liability of Lessee or the estate of Lessee in bankruptcy, or of any remedy for the enforcement of Lessee’s liability under the Lease resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other statutes or from the decision of any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Lessee; (e) any disability or other defense of Lessee; (f) the cessation from any cause whatever of the liability of Lessee; (g) the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the Lease. If Lessee shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any court, Guarantor shall pay to Lessor the amount of all accrued, unpaid and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any of the terms, covenants or conditions of the Lease or of this Guaranty. Guarantor may be joined in any action against Lessee in connection with the obligations of Lessee under the Lease and recovery may be had against Guarantor in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions in the Lease on Lessee’s part agreements therein provided to be performed and observed are fully performed by Tenant and observedexpressly agrees that the validity of this Guaranty of Lease and the obligations of the undersigned hereunder shall in no wise be terminated, Guarantor: (a) shall have no right of subrogation against Lessee affected or impaired by reason of any payment forbearance, settlements or performance compromises between Landlord and Tenant or the invalidity of the Lease for any reason whatsoever or by Guarantor hereunder; and (b) subordinates the relief of Tenant from any liability of Tenants obligations under the Lease by operation of law or indebtedness otherwise, including, without limitation of Lessee the generality of the foregoing, the rejection of or assignment of the Lease in connection with proceedings under any bankruptcy laws now in effect or hereafter held by Guarantor enacted. The undersigned further covenants and agrees that this Guaranty of Lease shall be and remain in full force and effect as to the obligations of Lessee to Lessor under the Lease. This Guaranty shall apply to the Lease, any extension, renewal, modification or amendment thereofextension, whether or not known to any assignmentor approved by the undersigned and that no subletting, subletting assignment or other tenancy thereunder and to any holdover term following the Lease term granted under transfer of the Lease, or any extension interest therein, shall operate to extinguish or renewal thereof. Notwithstanding anything in this Guaranty to diminish the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions liability of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension of the Lease term resulting from an amendment to the Lease between Lessor and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of any defaults by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Leasehereunder. In the event of any litigation between Guarantor termination of the Lease by Landlord, the undersigned's liability hereunder shall not be terminated, but the undersigned shall be and Lessor with respect remain liable for all damages, costs, expenses and other claims which may arise under the Lease. If the undersigned shall, directly or indirectly, advance any sums to the subject matter hereofTenant, such sums and indebtedness shall be subordinate in all respects to the amounts then and thereafter due and owing by the Tenant under the Lease. Wherever reference is made to the liability of Tenant in the Lease, such reference shall be deemed likewise to refer to the undersigned, jointly and severally, with Tenant. The liability of the undersigned for the obligations of the Lease shall be primary. In any right of action which shall accrue to Landlord under the Lease, Landlord may, at Landlord's option, proceed against the undersigned and/or Tenant, jointly and severally, and may proceed against the undersigned without having demanded performance of, commenced any action against or having obtained any judgment against Tenant. The undersigned hereby waives any obligation on the part of Landlord to enforce the terms of the Lease against Tenant as a condition to Landlord's right to proceed against (i) notice of acceptance of this Guaranty of Lease and of presentment, demand and protest; (ii) notice of any default hereunder or under the Lease and of all indulgences; (iii) demand for observance or performance of, or enforcement of, any terms or provisions of this Guaranty of Lease or the Lease; and (iv) all other notices and demands otherwise required by law which the undersigned may lawfully waive. The undersigned agrees that in the event this Guaranty of Lease shall be enforced by suit or otherwise, the unsuccessful party undersigned will reimburse the Landlord, upon demand, for all expenses incurred in such litigation shall pay connection therewith, including, without limitation, reasonable attorney's fees. Failure of Landlord to insist upon performance or observance of any of the terms, provisions or covenants of the foregoing Lease or to the successful party exercise of any right therein contained shall not be construed as a waiver or relinquishment for the future of any such term, provision, covenant or right, but the same shall continue and remain in full force and effect. Receipt by Landlord of rent with knowledge of the breach of any provision of the foregoing Lease shall not be deemed a waiver of such breach. The undersigned hereby waives, to the maximum extent permitted by law, all feesdefenses available to a surety, costs whether the waiver is specifically herein enumerated or not It is further agreed that all of the terms and expenses thereofprovisions hereof shall inure to the benefit of the respective heirs, including reasonable attorneys’ fees executors, administrators, successors and expensesassigns of the Landlord, and shall be binding upon the successors and assigns of the undersigned. If there is In the event more than one undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all of the undersigned; (b) each provision of person or entity execute this Guaranty of Lease, the liability of such signatories hereby shall be binding on each one of the undersigned, who shall be jointly joint and severally liable hereunder; and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery of Guarantor’s last published financial information shall be satisfactory for purposes of this Paragraph. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may not be changed, modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by Guarantor and Lessorseveral. This Guaranty of Lease shall be governed by and construed in accordance with the laws of the State of Illinois. Every noticeTexas, demand or request (collectively “Notice”) required hereunder or by law to be given by either party to the other and shall be performed in writingall respects in Xxxxxx County, Texas. Notices shall be given by personal service or by United States certified or registered mail, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served at the address indicated below or such other address EXECUTED as the party to be served may from time to time designate in a Notice to the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor in the state courts of the State 21st day of Illinois. Guarantor hereby consents to the jurisdiction December, 2006 By: TMIRS Enterprises, Ltd db/a TaxMasters by: /s/ Xxxxxxx Xxx Signature by: Xxxxxxx Xxx Printed Name its: President Title Exhibit "A" - Land Exhibit "B" - Floor Plans Exhibit "C" - Definition of such Court for such purposes. Any notice, complaint or legal process so delivered shall constitute adequate notice Rentable Area Exhibit "D" - Leasehold Improvements Exhibit "E" - Parking Exhibit "F" - Rules and service of process for all purposes and shall subject Guarantor to the jurisdiction of such Court for purposes of adjudicating any matter related to this Guaranty. Lessor and Guarantor hereby waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease, or this Guaranty. This Guaranty may be assigned in whole or part by Lessor upon written notice to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld in Lessor’s sole and absolute discretion. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties hereto.Regulations Exhibit "G" - Special Provisions
Appears in 1 contract
Samples: Lease (TaxMasters, Inc.)
GUARANTY OF LEASE. THIS GUARANTY OF LEASE FOR VALUE RECEIVED, and in consideration of, and as an inducement for the execution and delivery of that certain lease (“Guaranty”the "Lease") is entered into for the premises commonly known as of July 50000 Xxxxx Xxxxx, 2019Xxxxxxxx County, Chattanooga, Tennessee (the "Leased Premises") by Ascend Wellness Holdings, LLCand between Auction Venture Limited Liability Company, an Illinois Ohio limited liability company (“Guarantor”"Landlord") and Acacia Chattanooga Vehicle Auction, Inc., a Tennessee corporation ("Tenant"), for the benefit of LCR 1014 EASTPORT PLAZAundersigned, LLC Acacia Automotive, Inc., a Texas corporation (“Lessor”"Guarantor"), with reference hereby guarantees to the following facts: Lessor and HealthCentral Illinois HoldingsLandlord, LLC (“Lessee”), have entered or will enter into a lease of even date herewith (the “Lease”). Capitalized terms used but not otherwise defined herein shall have the same meaning ascribed to them in the Lease. By its covenants herein set forth, Guarantor has induced Lessor to enter into the Lease, which was made and entered into in consideration for Guarantor’s said covenants. Subject to the terms set forth herein, Guarantor unconditionally guarantees, without deduction by reason of setoff, defense or counterclaim, to Lessor and its successors and assigns the full and punctual prompt payment (of rent, and not merely any and all other sums and charges payable by Tenant, under said Lease, and further hereby guarantees the collectability), full and timely performance and observance by Lessee, of all of the amountscovenants, terms, conditions and agreements therein provided to be performed and observed by Tenant, all of such obligations of payment and performance being hereinafter collectively called the "Obligations"; and Guarantor hereby covenants and conditions in the Lease contained on Lessee’s part agrees to be paid, kept, performed and observed. Notwithstanding the foregoing, in no event shall the scope of Guarantor’s obligations exceed Lessee’s obligations under the Lease except to the extent Lessee is relieved of any such obligation by reason of any bankruptcy or other like filing or order. If Lessee with Landlord that if default shall at any time default be made by Tenant in the punctual payment, payment or the performance and observance of any of the amounts, terms, covenants or conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed (after applicable notice and cure period)Obligations, Guarantor will payforthwith pay such Obligation to Landlord, keepand any arrears thereof, and will forthwith faithfully perform and observe samefulfill all Obligations and will forthwith pay to Landlord all damages that may arise in consequence of any default by Tenant, under the Lease, including without limitation, all reasonable attorneys' fees, disbursements incurred by Landlord or caused by any such default and/or by the enforcement of this Guaranty. This Guaranty is an absolute and unconditional guaranty of payment and of performance. It shall be enforceable against Guarantor without the necessity of any suit or proceedings on Landlord's part of any kind or nature whatsoever against Tenant and without the necessity of any notice of non-payment, non-performance or non-observance or of any notice of acceptance of this Guaranty or of any other notice or demand to which Guarantor might otherwise be entitled, all of which Guarantor hereby expressly waives; and Guarantor hereby expressly agrees that the validity of this Guaranty and the obligations of Guarantor hereunder shall not be terminated, affected, diminished or impaired by reason of the assertion or the failure to assert by Landlord against Tenant of any of the rights or remedies reserved to Landlord pursuant to the provisions of the Lease or by relief of Tenant from any of Tenant's obligations under the Lease or otherwise (including, but not by way of limitation, the rejection of the Lease in connection with proceedings under the bankruptcy laws now or hereafter in effect). This Guaranty shall be a continuing guaranty and the liability of Guarantor hereunder shall not be affected, modified or diminished by reason of any assignment, amendment or modification, renewal or extension of the Lease, or any holdover by Tenant or by reason of any modification, amendment or waiver of or change in any of the terms, covenants, conditions or provisions of the Lease, or by reason of any extension of time that may be granted by Landlord to Tenant, or a changed or different use of the Leased Premises consented to in writing by Landlord, or by reason of any dealings or transactions or matters or things occurring between Landlord and Tenant, whether or not notice thereof is given to Guarantor. The liability of Guarantor shall continue during any holdover, whether or not consented to by Landlord, and during any extension or renewal of the term and/or the Lease, whether or not notice thereof is given to Guarantor. Guarantor further agrees that if at any time all or any part of any payment theretofore applied by Landlord to any of the Obligations is or must be rescinded or returned by Landlord for any reason whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of Tenant), such Obligations shall, for the purposes of this Guaranty, to the extent that such payment is or must be rescinded or returned be deemed to have continued in existence, notwithstanding such application by Landlord, and this Guaranty shall continue to be effective or be reinstated, as the case may be, in the place and stead of Lesseeas to such Obligations, all as though such application by Landlord had not been made. Guarantor shall also pay indemnify and defend Landlord and hold Landlord harmless from and against any and all loss, damage, cost, or expense (including, without limitation, reasonable attorney's fees) arising out of any claim for rescission or return of all or any part of any payment theretofore applied by Landlord to Lessor all reasonable and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result any of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by lawObligations. Any act amounts received by Landlord from whatsoever source on account of Lessorthe Obligations may be applied by it toward the payment of such of the Obligations, and in such order of application, as Landlord may from time to time elect. Notwithstanding any payments made by or its successors for the account of Guarantor pursuant to this Guaranty, Guarantor shall not be subrogated to any rights of Landlord. Guarantor hereby waives all rights of subrogation, indemnity, contribution, exoneration, reimbursement or assignsother claim which Guarantor now has, consisting may hereafter have or claim against Tenant or any other person liable in any way with respect to the Obligations. Landlord's consent to any assignment or assignments, and successive assignments by Tenant of the Lease made either with or without notice to Guarantor shall in no manner whatsoever release Guarantor from any liability as Guarantor. All of Landlord's rights and remedies under the Lease or under this Guaranty are intended to be distinct, separate and cumulative and no such right and remedy therein or herein mentioned is intended to be in exclusion of or a waiver of any of the terms or conditions of the Lease, the giving of any consent others. All references herein to any matter or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunder. The obligations of Guarantor hereunder shall not be released by Lessor’s receipt, application or release of any security given for the performance and observance of any covenant or condition in the Lease contained on Lessee’s part to be performed or observed, nor by any modification of the Lease, regardless of whether Guarantor consents thereto or receives notice thereof. The liability of Guarantor hereunder shall in no way be affected by: (a) the release or discharge of Lessee in any creditor’s, receivership, bankruptcy or other proceeding; (b) the impairment, limitation or modification of the liability of Lessee or the estate of Lessee in bankruptcy, or of any remedy for the enforcement of Lessee’s liability under the Lease resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other statutes or from the decision of any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Lessee; (e) any disability or other defense of Lessee; (f) the cessation from any cause whatever of the liability of Lessee; (g) the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the Lease. If Lessee shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee "Tenant" shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any court, Guarantor shall pay deemed to Lessor the amount of all accrued, unpaid mean "Tenant and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any of the terms, covenants or conditions of the Lease or of this Guaranty. Guarantor may be joined in any action against Lessee in connection with the obligations of Lessee under the Lease and recovery may be had against Guarantor in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions in ," but Tenant shall not hereby be permitted to assign the Lease on Lessee’s part to be performed and observed are fully performed and observed, Guarantor: (a) shall have no right of subrogation against Lessee by reason of any payment or performance by Guarantor hereunder; and (b) subordinates any liability or indebtedness of Lessee now or hereafter held by Guarantor to the obligations of Lessee to Lessor under except as expressly provided in the Lease. This Guaranty shall apply be binding upon Guarantor and its successors and assigns, and shall inure to the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder benefit of Landlord and to any holdover term following the Lease term granted under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension of the Lease term resulting from an amendment to the Lease between Lessor its successors and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of any defaults by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Lease. In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all of the undersigned; (b) each provision of this Guaranty shall be binding on each one of the undersigned, who shall be jointly and severally liable hereunder; and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery of Guarantor’s last published financial information shall be satisfactory for purposes of this Paragraph. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may not be changed, modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by Guarantor and Lessorassigns. This Guaranty is and shall be governed by deemed to be a contract entered into under and construed pursuant to the laws of the State of Ohio and shall be in all respects governed, construed, applied and enforced in accordance with the laws of said State. Guarantor consents to jurisdiction and venue in the State state and federal courts located in Franklin County, Ohio in any action to enforce rights under this Guaranty. Executed this _____ day of IllinoisDecember, 2009. Every noticeSigned in the presence of: GUARANTOR: ACACIA AUTOMOTIVE, demand or request INC., a Texas corporation ______________________________ (collectively “Notice”Sign) required hereunder or by law to be given by either party to the other shall be in writing. Notices shall be given by personal service or by United States certified or registered mail______________________________ By: (Print Name) Its: Address: 0000 XX 00xx Xxxxxx, postage prepaidXxxxx, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served at the address indicated below or such other address Xxxxxxx 00000 THIS REVOLVING LOAN AGREEMENT (as the party to same may be served may amended, modified, supplemented, extended, renewed, restated or replaced from time to time designate in the “Agreement”) is made and entered into as of December 26, 2009 by and between Alexis Xxx Xxxxxx, an individual, whose address is 0000 Xxxxxxxxx Xxxx, Xxxxx, Xxxx 00000 (the “Lender”), and Acacia Chattanooga Vehicle Auction, Inc., a Notice to Tennessee corporation, whose address is 0000 Xxxxx Xxxxx, Chattanooga, Tennessee 37421 (the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor in the state courts of the State of Illinois. Guarantor hereby consents to the jurisdiction of such Court for such purposes. Any notice, complaint or legal process so delivered shall constitute adequate notice and service of process for all purposes and shall subject Guarantor to the jurisdiction of such Court for purposes of adjudicating any matter related to this Guaranty. Lessor and Guarantor hereby waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease, or this Guaranty. This Guaranty may be assigned in whole or part by Lessor upon written notice to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld in Lessor’s sole and absolute discretion. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties hereto“Borrower”).
Appears in 1 contract
GUARANTY OF LEASE. THIS GUARANTY OF LEASE (“Guaranty”) is entered into as In consideration of July 5, 2019, by Ascend Wellness Holdingsthe execution of the foregoing Lease between BY-PASS 85 Associates, LLC, an Illinois limited liability company (“Guarantor”)a South Carolina Limited Liability Company, for as Landlord, and XXXXX INDUSTRIES D/B/A XXXX, INC., as Tenant, the benefit of LCR 1014 EASTPORT PLAZAundersigned, LLC (“Lessor”)their heirs/successors and assigns, hereby covenant and agree to and with reference to the following facts: Lessor Landlord, and HealthCentral Illinois Holdingsthe said Landlord's legal representatives, LLC (“Lessee”)successors and assigns, have entered or will enter into a lease of even date herewith (that if default at any time be made by the “Lease”). Capitalized terms used but not otherwise defined herein shall have the same meaning ascribed to them said Tenant in the Lease. By its covenants herein set forth, Guarantor has induced Lessor to enter into the Lease, which was made and entered into in consideration for Guarantor’s said covenants. Subject to the terms set forth herein, Guarantor unconditionally guarantees, without deduction by reason of setoff, defense or counterclaim, to Lessor and its successors and assigns the full and punctual payment (and not merely the collectability), performance and observance by Lessee, of all of the amounts, terms, rent or the performance of the covenants and conditions contained in the Lease contained within lease on Lessee’s the Tenant's part to be paidpaid or performed, keptthe undersigned will well and truly pay the said rent or any arrears thereof that may remain due unto the said Landlord, performed and observed. Notwithstanding also all damages that may arise in consequence of the foregoingnon-performance of said covenants, in no event shall the scope or any of Guarantor’s obligations exceed Lessee’s obligations under the Lease except to the extent Lessee is relieved them without requiring notice of any such obligation by reason of any bankruptcy or other like filing or orderdefault from the Landlord. If Lessee shall at any time default in the punctual payment, performance and observance of any The duties of the amounts, terms, covenants undersigned under this Guaranty Agreement arise irrespective of and without regard to lessee's solvency or conditions in the Lease contained on Lessee’s part ability to be paid, kept, performed and observed (after applicable notice and cure period), Guarantor will pay, keep, perform and observe sameboth the undersigned and the Tenant may be sued severally or jointly for any default or failure by Tenant, as the case may beits successor or assigns, in the place performance of any and stead all terms and obligations of Lesseesaid Lease. Guarantor shall also pay to Lessor all reasonable The undersigned represents that Tenant is its wholly owned subsidiary and necessary incidental damages and expenses incurred by Lessor as that the undersigned will receive or have received a direct or indirect material benefit from the Lease transaction arising out of Tenant's rights and proximate result obligations thereunder. The undersigned further represents that execution and delivery of Lessee’s failure this Guaranty of Lease has been duly considered and approved by the appropriate corporate governing group as required by its Articles and By-Laws, and the officer(s) who execute and deliver the same have been duly authorized and empowered to performdo so to bind the undersigned. This Guaranty Agreement does not limit the freedom of the Landlord and Tenant, which expenses shall include reasonable attorneys’ fees their respective heirs, successors and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessor, or its successors or assigns, consisting of a waiver to amend or modify the said Lease, and the validity of any of the terms or conditions of the Lease, the giving of any consent to any matter or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunder. The obligations of Guarantor hereunder shall not be released by Lessor’s receipt, application or release of any security given for the performance and observance of any covenant or condition in the Lease contained on Lessee’s part to be performed or observed, nor by any modification of the Lease, regardless of whether Guarantor consents thereto or receives notice thereof. The liability of Guarantor hereunder shall in no way be affected by: (a) the release or discharge of Lessee in any creditor’s, receivership, bankruptcy or other proceeding; (b) the impairment, limitation such amendment or modification of the liability of Lessee or the estate of Lessee in bankruptcy, or of any remedy for the enforcement of Lessee’s liability under the Lease resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other statutes or from the decision of any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Lessee; (e) any disability or other defense of Lessee; (f) the cessation from any cause whatever of the liability of Lessee; (g) the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the Lease. If Lessee shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any court, Guarantor shall pay to Lessor the amount of all accrued, unpaid and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new said lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall is in no way affect dependent on approval or concurrence by the obligations of Guarantor undersigned, its heirs or Lessee to perform any assigns. Neither the consent nor approval of the terms, covenants or conditions of the Lease or of this Guaranty. Guarantor may undersigned shall be joined required in any action against Lessee in connection with the obligations of Lessee under the Lease and recovery may be had against Guarantor in respect to any such action. Lessor may enforce amendment or modification, and the obligations of Guarantor under signed shall be bound hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions in the Lease on Lessee’s part to be performed and observed are fully performed and observed, Guarantor: (a) shall have no right of subrogation against Lessee by reason of any payment or performance by Guarantor hereunder; and (b) subordinates any liability or indebtedness of Lessee now or hereafter held by Guarantor as to the obligations and undertakings of Lessee the Tenant under said lease as thus amended or modified. With respect to Lessor any assignment of the foregoing lease to which the Landlord gives consent, Landlord agrees to release the undersigned from their obligations under this Guaranty; provided the LeaseLandlord is provided with substitute -------- individual personal guarantors or corporate guarantors satisfactory to Landlord who provide to Landlord then current audited financial statements showing an aggregate net worth equal to or greater than the net worth of the undersigned either according to the financial statements provided Landlord herewith, or as of the time of the proposed assignment and consent to release from guaranty, whichever is greater. The minimum net worth required in this subparagraph will not be considered achieved if provided by more than two parties who are offering their guarantees under such an assignment in order to meet the conditions hereof. This Guaranty in no way shall apply to limit the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following the Lease term granted under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions total number of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension of the Lease term resulting from an amendment to the Lease between Lessor and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term guarantors which may be exercised by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of proposed upon any defaults by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Lease. In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all of the undersigned; (b) each provision of this Guaranty shall be binding on each one of the undersigned, who shall be jointly and severally liable hereunder; and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery of Guarantor’s last published financial information shall be satisfactory for purposes of this Paragraph. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may not be changed, modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by Guarantor and Lessor. This Guaranty shall be governed by and construed in accordance with the laws of the State of Illinois. Every notice, demand or request (collectively “Notice”) required hereunder or by law to be given by either party to the other shall be in writing. Notices shall be given by personal service or by United States certified or registered mail, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served at the address indicated below or such other address as the party to be served may from time to time designate in a Notice to the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor in the state courts of the State of Illinois. Guarantor hereby consents to the jurisdiction of such Court for such purposes. Any notice, complaint or legal process so delivered shall constitute adequate notice and service of process for all purposes and shall subject Guarantor to the jurisdiction of such Court for purposes of adjudicating any matter related to this Guaranty. Lessor and Guarantor hereby waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease, or this Guaranty. This Guaranty may be assigned in whole or part by Lessor upon written notice to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld in Lessor’s sole and absolute discretion. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties hereto.such
Appears in 1 contract
GUARANTY OF LEASE. THIS GUARANTY OF LEASE (“Guaranty”) is entered into as of July 5, 2019, by Ascend Wellness HoldingsAs an inducement to FREMONT LAKE UNION CENTER, LLC, an Illinois a Delaware limited liability company (“GuarantorLandlord”), for the benefit of LCR 1014 EASTPORT PLAZA, LLC (“Lessor”), with reference ) to the following facts: Lessor and HealthCentral Illinois Holdings, LLC (“Lessee”), have entered or will enter into a lease of even date herewith that Lease dated , 2009 which covers certain premises located in the Plaza Building at 000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxxxxx (the “Lease”) with CUTTER & BUCK INC., a Washington corporation (“Tenant”). Capitalized terms used but not otherwise defined herein shall have , the same meaning ascribed to them undersigned (hereinafter “Guarantor”), being financially interested in the Lease. By its covenants herein set forth, Guarantor has induced Lessor to enter into Tenant and benefiting from the Lease, which was made and entered into in consideration for Guarantor’s said covenants. Subject hereby guarantees to the terms set forth herein, Guarantor unconditionally guarantees, without deduction by reason of setoff, defense or counterclaim, to Lessor and its successors and assigns Landlord the full and punctual prompt payment (of all sums, including, but not limited to, the rent, taxes, insurance, utility charges and not merely any and all other sums and charges payable by the collectability)Tenant under the Lease, including during the Renewal Term, if extended, and the full and prompt performance and observance by Lessee, of all the covenants, terms conditions and agreements therein provided to be performed and observed by Tenant. Guarantor hereby covenants and agrees to and with Landlord that if Tenant or its successors or assigns at any time defaults in the payment of any such sum or in the performance of any of the amountsterms, covenants, provisions or conditions contained in the Lease and such default is not cured within the applicable cure period, Guarantor will immediately pay such sum or will forthwith perform and fulfill such terms, covenants and conditions in the Lease contained on Lessee’s part and agreements, and will immediately pay to be paidLandlord, kept, performed its successors and observed. Notwithstanding the foregoing, in no event shall the scope assigns all damages that may arise as a consequence of Guarantor’s obligations exceed Lessee’s obligations any default by Tenant under the Lease except to the extent Lessee is relieved of any such obligation by reason of any bankruptcy or other like filing or order. If Lessee shall at any time default in the punctual paymentLease, performance and observance of any of the amountsincluding without limitation, terms, covenants or conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed (after applicable notice and cure period), Guarantor will pay, keep, perform and observe same, as the case may be, in the place and stead of Lessee. Guarantor shall also pay to Lessor all reasonable and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees incurred by Landlord. This is an absolute and interest on all sums due unconditional guaranty of payment and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessor, or its successors or assigns, consisting of a waiver of any of the terms or conditions of the Lease, the giving of any consent to any matter or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunderperformance. The obligations of Guarantor hereunder shall not be released by Lessor’s receipt, application or release of any security given for the performance and observance of any covenant or condition in the Lease contained on Lessee’s part to be performed or observed, nor by any modification are independent of the Leaseobligations of Tenant, and a separate action or actions may be brought and prosecuted against Guarantor, regardless of whether Guarantor consents thereto an action is brought against Tenant and regardless of whether Tenant is joined in such action or receives notice thereofactions. The liability of Guarantor hereunder is primary and shall in no way not be affected by: or diminished by any transfer, of Tenant’s interest in the Lease. Guarantor authorizes Landlord, without notice or demand and without affecting Guarantor’s liability hereunder, from time to time to (a) accelerate or otherwise change the release time for payments under or discharge of Lessee in otherwise change the terms of, the Lease or any creditor’spart thereof, receivership, bankruptcy or other proceedingby agreement with Tenant; (b) the impairment, limitation release or modification of the liability of Lessee substitute any one or the estate of Lessee in bankruptcy, or of any remedy for the enforcement of Lessee’s liability under the Lease resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other statutes or from the decision of any courtmore guarantors; (c) modify or alter the rejection liability of Tenant under the Lease; or disaffirmance of the Lease in any such proceedings; (d) the assignment to settle or transfer compromise any claim of Landlord against Tenant. Landlord may assign the Lease by Lesseeand/or this Guaranty in whole or in part, without notice and without in any manner affecting Guarantor’s obligations hereunder. Guarantor waives any right to require Landlord to (a) proceed against Tenant; (eb) proceed against or exhaust any security held from Tenant; or (c) pursue any other remedy in Landlord’s power whatsoever. Guarantor waives any defense arising by reason of any disability or other defense of Lessee; (f) Tenant or by reason of the cessation from any cause whatever whatsoever of the liability of Lessee; (g) the exercise by Lessor Tenant. Until all obligations of any of its rights or remedies reserved Tenant to Landlord under the Lease or by law; or (h) any termination of the Lease. If Lessee shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any courthave been fully paid and performed, Guarantor shall pay to Lessor the amount of all accrued, unpaid and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any of the terms, covenants or conditions of the Lease or of this Guaranty. Guarantor may be joined in any action against Lessee in connection with the obligations of Lessee under the Lease and recovery may be had against Guarantor in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions in the Lease on Lessee’s part to be performed and observed are fully performed and observed, Guarantor: (a) shall have no right of subrogation subrogation, and waives any right to enforce any remedy which Landlord now has or may hereafter have against Lessee Tenant, and waives any benefit of, and any right to participate in any security now or hereafter held by reason Landlord, Except for the right to receive notice of any payment default as set forth below, and the cure periods provided to Tenant under the Lease, Guarantor waives all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty and of the existence, creation or performance by incurring of new or additional indebtedness and all other notices of every kind and nature to which Guarantor hereunder; and (b) subordinates any liability or might otherwise be entitled as a matter of law. Any indebtedness of Lessee Tenant now or hereafter held by Guarantor is hereby subordinated to the obligations indebtedness of Lessee Tenant to Lessor under the Lease. This Guaranty Landlord and such indebtedness of Tenant to Guarantor, if Landlord so requests, shall apply be collected, enforced and received by Guarantor as a trustee for Landlord and be paid over to the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following the Lease term granted under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions Landlord on account of the Lease indebtedness of Tenant to a third party which is not an entity controlling it, but without reduction or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension of the Lease term resulting from an amendment to the Lease between Lessor and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of any defaults by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Lease. In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all of the undersigned; (b) each provision of this Guaranty shall be binding on each one of the undersigned, who shall be jointly and severally liable hereunder; and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery of Guarantor’s last published financial information shall be satisfactory for purposes of this Paragraph. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may not be changed, modified, discharged or terminated orally or affecting in any manner other than by an agreement in writing signed by the liability of Guarantor and Lessor. This Guaranty shall be governed by and construed in accordance with the laws of the State of Illinois. Every notice, demand or request (collectively “Notice”) required hereunder or by law to be given by either party to under the other shall be provisions of this Guaranty. Until such time as the Lease has been paid and performed in writing. Notices shall be given full, Guarantor agrees not to exercise any rights any of them may now or hereafter acquire against Tenant (whether by personal service or by United States certified or registered mailsubrogation, postage prepaid, return receipt requestedreimbursement, or by telegram, mailgram or same-day or overnight private courier, addressed otherwise) arising out of payments to the party to be served at the address indicated below or such other address as the party to be served may from time to time designate in a Notice to the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor in the state courts of the State of IllinoisLandlord hereunder. Guarantor hereby consents waives and relinquishes in favor of Landlord and Tenant any claim or right to the jurisdiction of such Court for such purposes. Any noticepayment Guarantor may now have or hereafter have or acquire against Tenant, complaint by subrogation or legal process so delivered shall constitute adequate notice and service of process for all purposes and shall subject Guarantor to the jurisdiction of such Court for purposes of adjudicating any matter related to this Guaranty. Lessor and Guarantor hereby waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease, or this Guaranty. This Guaranty may be assigned in whole or part by Lessor upon written notice to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld in Lessor’s sole and absolute discretion. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties heretootherwise.
Appears in 1 contract
GUARANTY OF LEASE. THIS GUARANTY OF LEASE In consideration of and as an inducement to Lessor to enter into that certain Lease dated the day of June, 1998, (“GuarantyLease”) is entered into as of July 5between The Principal Mutual Life Insurance Company, 2019(“Landlord”) and R.F. Machining, by Ascend Wellness HoldingsInc., LLC(a Minnesota corporation), an Illinois limited liability company (“Tenant”) and in reliance on this Guaranty, Innovex, Inc., a Minnesota corporation, (“Guarantor”)) hereby unconditionally guarantees the due and punctual payment of all Rent, for the benefit of LCR 1014 EASTPORT PLAZAboth Basic and Additional, LLC if any (“Lessor”), with reference to the following facts: Lessor and HealthCentral Illinois Holdings, LLC (“Lessee”), have entered or will enter into a lease of even date herewith (the “Lease”). Capitalized terms used but not otherwise as defined herein shall have the same meaning ascribed to them in the Lease. By its covenants herein set forth), Guarantor has induced Lessor and all the other sums due (including interest and penalties) and to enter into the Lease, which was made and entered into in consideration for Guarantor’s said covenants. Subject be paid by Tenant pursuant to the terms set forth herein, Guarantor unconditionally guarantees, without deduction Lease and the performance by reason of setoff, defense or counterclaim, to Lessor and its successors and assigns the full and punctual payment (and not merely the collectability), performance and observance by Lessee, Tenant of all of the amountsterms, termsconditions, covenants and conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed. Notwithstanding the foregoing, in no event shall the scope of Guarantor’s obligations exceed Lessee’s obligations under the Lease except to the extent Lessee is relieved of any such obligation by reason of any bankruptcy or other like filing or order. If Lessee shall at any time default in the punctual payment, performance and observance of any of the amounts, terms, covenants or conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed (after applicable notice and cure period), Guarantor will pay, keep, perform and observe same, as the case may be, in the place and stead of Lessee. Guarantor shall also pay to Lessor all reasonable and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessor, or its successors or assigns, consisting of a waiver of any of the terms or conditions agreements of the Lease, and Guarantor agrees to pay all of Landlord’s costs, expenses and reasonable attorney’s fees incurred in enforcing the giving covenants and agreement of any consent to any matter or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunder. The obligations of Guarantor hereunder shall not be released by Lessor’s receipt, application or release of any security given for the performance and observance of any covenant or condition Tenant in the Lease contained on Lessee’s part to be performed or observed, nor incurred by any modification Landlord in enforcing this Guaranty. Guarantor waives notice of the Leaseacceptance of this Agreement, regardless presentment, protest, notice of whether Guarantor consents thereto or receives notice thereof. The protest and any and all demand for performance of any and all notices of nonperformance which might otherwise be a condition precedent to the liability of Guarantor, without first proceeding or making claim or exhausting any remedy against Tenant or pursuing any particular remedy or remedies available to Landlord. Guarantor hereunder shall agrees that in no way be affected bythe event of any one of the following: (a) the release Tenant shall become insolvent or discharge of Lessee in any creditor’s, receivership, bankruptcy or other proceedingshall be adjudicated a bankrupt; (b) the impairment, limitation or modification of the liability of Lessee or the estate of Lessee in bankruptcy, or of any remedy for the enforcement of Lessee’s liability under the Lease resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other statutes or from the decision of any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Lessee; (e) any disability or other defense of Lessee; (f) the cessation from any cause whatever of the liability of Lessee; (g) the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the Lease. If Lessee Tenant shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if file a petition for reorganization, arrangement or similar relief under any present or future provision of the Bankruptcy Code; (c) such a petition filed by creditors of Tenant shall be filed against Lessee, approved by court; (d) Tenant shall see a judicial readjustment of the rights of its creditors under any present or if future federal or state law; or (e) a receiver of any all or part of Lessee’s its property or and assets shall be is appointed by any state or federal court, and in any such proceeding the Lease shall be terminated or rejected or the obligations of Tenant hereunder shall be modified, the Guarantor shall will immediately pay to Lessor the Landlord, or its successors or assigns (i) an amount of equal to all accrued, unpaid and accruing rent and other charges due under the Lease and all principal and interest and other charges under Rent accrued to the date when the debtor-in- possessionof such termination, the trustee rejection or administrator accepts the Lease and commences paying same. At the option of Lessormodification, Guarantor shall either: plus (aii) pay Lessor an amount equal to the rent and other charges then cash value of all Rent which would have been payable under the Lease for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for thereby demised, less the balance then cash rental value of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any Leased Premises for such unexpired portion of the termsterm, covenants or conditions of together with interest on the Lease or of this Guaranty. Guarantor may be joined in any action against Lessee in connection with amounts designated (i) and (ii) above at the obligations of Lessee under the Lease and recovery may be had against Guarantor in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions highest rate then payable in the Lease on Lessee’s part to be performed and observed state in which the Leased Premises are fully performed and observed, Guarantor: (a) shall have no right of subrogation against Lessee by reason of any payment or performance by Guarantor hereunder; and (b) subordinates any liability or indebtedness of Lessee now or hereafter held by Guarantor to the obligations of Lessee to Lessor under the Lease. This Guaranty shall apply to the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following the Lease term granted under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrarylocated or, in the event Lessee assigns absence of such a maximum rate, at the Lease rate of fourteen percent (14%) per annum from the date of such termination, rejection or subleases modification to the Premises date of payment. Neither Guarantor’s obligation to make payment in accordance with the provisions terms of this Agreement nor any remedy for the enforcement thereof shall be impaired, modified, changed, released or limited in any manner whatsoever by an impairment, modification, change, release or limitation of the Lease to a third party which is not an entity controlling liability of Tenant or controlled by its estate in bankruptcy or under common control with Lessee of any remedy for the enforcement thereof resulting from the operation of any preset or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension future provision of the Lease term resulting from an amendment to national Bankruptcy Act or the Lease between Lessor and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise decisions of any option to extend the Lease term which may be exercised by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of any defaults by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Leasecourt. In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all of the undersigned; (b) each provision of The Landlord agrees that this Guaranty shall be binding terminate on each one of the undersignedDecember 31, who shall be jointly and severally liable hereunder; and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year)1999 provided, however, that Guarantor shall furnish Lessor with financial statements remain liable for any defaults which occur on or other reasonable financial information reflecting Guarantor’s current financial conditionbefore December 31, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery of Guarantor’s last published financial information shall be satisfactory for purposes of this Paragraph. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may not be changed, modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by Guarantor and Lessor1999. This Guaranty shall be governed by and construed in accordance with the laws of the State of Illinois. Every notice, demand or request (collectively “Notice”) required hereunder or by law to be given by either party to the other shall be in writing. Notices shall be given by personal service or by United States certified or registered mail, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served at the address indicated below or such other address as the party to be served may from time to time designate in a Notice to the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor in the state courts of the State of Illinois. Guarantor hereby consents to the jurisdiction of such Court for such purposes. Any notice, complaint or legal process so delivered shall constitute adequate notice and service of process for all purposes and shall subject Guarantor to the jurisdiction of such Court for purposes of adjudicating any matter related to this Guaranty. Lessor and Guarantor hereby waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease, or this Guaranty. This Guaranty may be assigned in whole or part by Lessor upon written notice to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld in Lessor’s sole and absolute discretion. The terms and provisions of this Guaranty shall be binding upon the successors and assigns of the Guarantor and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties heretoLandlord (including any assignee of the Lease, which may be assigned as additional security for a loan).
Appears in 1 contract
GUARANTY OF LEASE. THIS GUARANTY OF LEASE FOR VALUE RECEIVED, and in consideration of, and as an inducement for the execution and delivery of the foregoing and attached lease agreement demising the Demised Premises (“Guaranty”as defined in the Lease hereinafter defined) is entered into as in the Town of July 5Bethlehem, 2019Albany County, New York (hereinafter called the "Lease") by Ascend Wellness HoldingsSELKIRK VENTURES, LLC, an Illinois limited liability company the Lessor therein named (“Guarantor”hereinafter called the "Lessor") to DAISYTEK, INCORPORATED., the Lessee therein named (hereinafter called the "Lessee"), for the benefit of LCR 1014 EASTPORT PLAZAundersigned DAISYTEK INTERNATIONAL CORPORATION, LLC (“Lessor”), with reference hereinafter called the "Guarantor") hereby guarantees to the following facts: Lessor Lessor, its successors and HealthCentral Illinois Holdingsassigns, LLC (“Lessee”)the full and prompt payment of rent, have entered or will enter into a lease of even date herewith (the “Lease”). Capitalized terms used including, but not otherwise limited to, Base Rent (as defined herein shall have the same meaning ascribed to them in the Lease. By its covenants herein set forth), Guarantor has induced Lessor to enter into Additional Rent (as defined in the Lease) and any and all other sums and charges payable by the Lessee, which was made and entered into in consideration for Guarantor’s said covenants. Subject to the terms set forth herein, Guarantor unconditionally guarantees, without deduction by reason of setoff, defense or counterclaim, to Lessor and its successors and assigns assigns, under said Lease, and further hereby guarantees the full and punctual payment (and not merely the collectability), timely performance and observance by Lessee, of all of the amountscovenants, terms, conditions and agreements therein provided to be performed and observed by the Lessee, its successors and assigns; and the Guarantor hereby covenants and conditions in agrees to and with the Lease contained on Lessee’s part to be paidLessor, keptits successors and assigns, performed and observed. Notwithstanding the foregoing, in no event shall the scope of Guarantor’s obligations exceed Lessee’s obligations under the Lease except to the extent Lessee is relieved of any such obligation by reason of any bankruptcy or other like filing or order. If Lessee that if default shall at any time by made by the Lessee, its successors and assigns, in the payment of any such Base Rent, Additional Rent, and any and all other sums and charges payable by the Lessee, its successors and assigns, under said Lease, or if Lessee should default in the punctual payment, performance and observance of any of the amountscovenants, terms, covenants conditions or conditions agreements contained in said Lease, the Lease contained on Lessee’s part to be paid, kept, performed and observed (after applicable notice and cure period), Guarantor will payforthwith pay such rent and such other sums and charges to the Lessor, keepits successors and assigns, and any arrears thereof, and will forthwith faithfully perform and observe samefulfill all of such terms, as the case may becovenants, in the place conditions, and stead of Lessee. Guarantor shall also agreements, and will forthwith pay to the Lessor all damages that may arise in consequence of any default by the Lessee, its successors and assigns, under said Lease, including without limitation, all reasonable and necessary incidental damages and expenses attorney's fees, disbursements incurred by the Lessor as or caused by any such default and/or by the enforcement of this Guaranty. This Guaranty is an absolute and unconditional guarantee of payment and of performance. This Guaranty is not a direct collection guaranty. It shall be enforceable against the Guarantor without the necessity of any suit or proceedings on the Lessor's part of any kind or nature whatsoever against the Lessee, its successors and proximate result assigns, and without the necessity of Lessee’s failure any notice of nonpayment, nonperformance or nonobservance or of any notice of acceptance of this Guaranty or of any other notice or demand to performwhich the Guarantor might otherwise be entitled, all of which expenses the Guarantor hereby expressly waives; and the Guarantor hereby expressly agrees that the validity of this Guaranty and the obligations of the Guarantor hereunder shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor be nowise be terminated, affected, diminished or impaired by reason of Lessee’s the assertion or the failure to pay sameassert by the Lessor against the Lessee, at or against the maximum rate allowed Lessee's successors and assigns, of any of the rights or remedies reserved to the Lessor pursuant to the provisions of the said Lease or by lawrelief of Lessee from any of Lessee's obligations under this Lease or otherwise (including, but not by way of limitation, the rejection of said Lease in connection with proceedings under the bankruptcy laws now or hereafter in effect). Any act This Guaranty shall be a continuing guarantee and the liability of the Guarantor hereunder shall in no way be affected, modified or diminished by reason of any assignment, renewal, modification or extension of the Lease or said Lease, or by reason of any extension of time that may be granted by the Lessor to the Lessee, its successors or assigns or a changed or different use of the Demised Premises consented to in writing by Lessor, or by reason of any dealings or transactions or matters or things occurring between the Lessor and the Lessee, its successors or assigns, consisting whether or not notice thereof is given to the Guarantor. The Lessor's consent to any assignment or assignments, and successive assignments by the Lessee and Lessee's assigns of the Lease made either with or without notice to the Guarantor shall in no manner whatsoever release the Guarantor from any liability as Guarantor. The assignment by Lessor of the Lease and/or the avails and proceeds thereof made either with or without notice to the Guarantor shall in no manner whatsoever release the Guarantor from any liability as Guarantor. All of the Lessor's rights and remedies under the said Lease or under this Guaranty are intended to be distinct, separate and cumulative and no such right and remedy therein or herein mentioned is intended to be in exclusion of or a waiver of any of the terms or conditions of the Lease, the giving of any consent to any matter or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunderothers. The obligations of the Guarantor hereunder shall not be released by Lessor’s Lessee's receipt, application or release of any security given for the performance and observance and observance of any covenant or condition in the Lease contained on Lessee’s part covenants and conditions required to be performed or observedand observed by Lessee under said Lease, nor shall the Guarantor be released by the maintenance of or execution upon any modification of the Lease, regardless of whether Guarantor consents thereto lien which lien which Lessor may have or receives notice thereof. The liability of Guarantor hereunder shall in no way be affected by: (a) the release or discharge of Lessee in any creditor’s, receivership, bankruptcy or other proceeding; (b) the impairment, limitation or modification of the liability of Lessee or the estate of Lessee in bankruptcy, or of any remedy for the enforcement of Lessee’s liability under the Lease resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other statutes or from the decision of any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Lessee; (e) any disability or other defense of Lessee; (f) the cessation from any cause whatever of the liability of Lessee; (g) the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the Lease. If Lessee shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any court, Guarantor shall pay to Lessor the amount of all accrued, unpaid and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any of the terms, covenants or conditions of the Lease or of this Guaranty. Guarantor may be joined in any action assert against Lessee in connection with the obligations of Lessee under the Lease and recovery may be had against Guarantor in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may holdand/or Lessee's assets. Until all of the covenants and conditions in the said Lease on the Lessee’s 's part to be performed and observed are fully performed and observed, Guarantor: the Guarantor (a) shall have no right of subrogation against the Lessee by reason of any payments or acts of performance by the Guarantor, in compliance with the obligations of the Guarantor hereunder; (b) waives any right to enforce any remedy which the Guarantor now or hereafter shall have against the Lessee by reason of any one or more payment or acts of performance by in compliance with the obligations of the Guarantor hereunder; and (bc) subordinates any liability or indebtedness of the Lessee now or hereafter held by the Guarantor to the obligations of the Lessee to the Lessor under the said Lease. This Guaranty shall apply Guarantor hereby submits itself to the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following jurisdiction of the courts of the state in which the Lease term granted under Premises are located, and hereby irrevocably appoints the LeaseLessee, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event if Lessee assigns the Lease or subleases the Premises in accordance with the provisions of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension of the Lease term resulting from an amendment to the Lease between Lessor and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of any defaults by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Lease. In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantorperson than any one of them, (a) the manager, assistant manager and any acting manager of the facility being operated at any time during the term “Guarantor”, as used herein, shall include all of the undersigned; Lease at the Demised Premises and (bif Lessee is a corporation, trustee or partnership) each provision all persons of the Lessee upon whom service of process may be served for service upon Lessee as its agents for the service of process in any action against Guarantor arising out of this Guaranty shall Guaranty. Pursuant to such service, suit may be binding on each one of brought against Guarantor in the undersigned, who shall be jointly county and severally liable hereunder; and (c) Lessor shall have state in which the Demised Premises are located. This provision does not affect any right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), serve process upon Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery of Guarantor’s last published financial information shall be satisfactory for purposes of this Paragraph. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may not be changed, modified, discharged or terminated orally or in any other manner other than permitted by an agreement in writing signed by Guarantor and Lessorlaw. This Guaranty shall be governed by and construed in accordance with the laws of the State of IllinoisNew York, without regard for such State's choice of law provision. Every notice, demand or request (collectively “Notice”) required hereunder or by law to be given by either party The Guarantor represents to the other Lessor that it shall be in writing. Notices shall be given by personal service or by United States certified or registered mail, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to derive substantial financial benefits the party to be served at the address indicated below or such other address as the party to be served may from time to time designate in a Notice to the other party. Any action to declare or enforce any right or obligation under Lessee entering into the Lease may be commenced by Lessor in with the state courts of the State of Illinois. Guarantor hereby consents to the jurisdiction of such Court for such purposes. Any notice, complaint or legal process so delivered shall constitute adequate notice and service of process for all purposes and shall subject Guarantor to the jurisdiction of such Court for purposes of adjudicating any matter related to this Guaranty. Lessor and Guarantor hereby waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease, or this Guaranty. This Guaranty may be assigned in whole or part by Lessor upon written notice to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld in Lessor’s sole and absolute discretion. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties hereto.
Appears in 1 contract
Samples: Lease Agreement (Daisytek International Corporation /De/)
GUARANTY OF LEASE. THIS GUARANTY OF LEASE (“Guaranty”) is entered into FOR VALUE RECEIVED and in consideration for and as of July 5an inducement to CT-BROAD STREET, 2019L.L.C., by Ascend Wellness Holdings, LLC, an Illinois a Delaware limited liability company (“GuarantorLandlord”) to lease certain real property to L-1 INVESTMENT PARTNERS LLC, a limited liability company, as tenant (“Tenant”), for the benefit of LCR 1014 EASTPORT PLAZA, LLC (“Lessor”), with reference pursuant to the following facts: Lessor and HealthCentral Illinois Holdings, LLC (“Lessee”), have entered or will enter into a lease of even date herewith dated April, 2005 (the “Lease”) by and between Landlord and Tenant, the undersigned, XXXXXX XxXXXXX and XXXXX XxXXXXX (jointly and severally “Guarantor”). Capitalized terms used but not otherwise , do hereby unconditionally and irrevocably guarantee to Landlord the punctual payment of all Rent (as such term is defined herein shall have the same meaning ascribed to them in the Lease. By its covenants herein set forth) payable by Tenant under the Lease throughout the term of the Lease and any and all renewals and extensions thereof in accordance with and subject to the provisions of the Lease up to $659,000.00 (the “Guaranteed Amount”), Guarantor has induced Lessor and the full performance and observance of all other terms, covenants, conditions and agreements therein provided to enter into be performed and observed by Tenant under the terms of the Lease, for which was made the undersigned shall be jointly and entered into severally liable with Tenant. If any default on the part of Tenant shall occur under the Lease, the undersigned does hereby covenant and agree to pay to Landlord in consideration each and every instance such sum or sums of money and to perform each and every covenant, condition and agreement under the Lease as Tenant is and shall become liable for Guarantor’s said covenants. Subject or obligated to pay or perform under the terms set forth hereinLease, Guarantor unconditionally guaranteestogether with the costs reasonably incurred by Landlord in connection therewith, including, without deduction limitation, reasonable attorneys, fees. Such payments of Rent and other sums shall be made monthly or at such other intervals as the same shall or may become payable under the Lease, including any accelerations thereof, all without requiring any notice from Landlord (other than any notice required by reason the Lease) of setoffsuch nonpayment or non-performance, defense or counterclaim, to Lessor and its successors and assigns the full and punctual payment (and not merely the collectability), performance and observance by Lessee, of all of which the amounts, terms, covenants and conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observedundersigned hereby expressly waives. Notwithstanding the foregoing, provided Tenant (or its successors or assigns) has timely paid all Rent due under this Lease during the 12 calendar month period immediately preceding the effective date of (a) an initial public offering of equity securities of Tenant (or its successors or assigns) under the Securities Act of 1933, as amended, which results in no event Tenant’s (or its successor’s or assign’s) stock being traded on the NYSE, the NASDAQ Stock Market or the NASDAQ Small Cap Market System, or (b) the assignment of the Lease to an entity whose stock is then being traded on the NYSE, the NASDAQ Stock Market or the NASDAQ Small Cap Market System, and the same results in Tenant (or its successors or assigns) achieving a net worth of at least $30,000,000.00 as of the day following the date of the initial public offering or the assignment (as the case may be), Guarantor, upon presentation of sufficient evidence to Landlord that the above conditions have been met, shall be relieved of their responsibility under this Guaranty for all obligations of Tenant (or its successors or assigns as the scope case may be) occurring after such conditions have been met. Notwithstanding the foregoing, provided Tenant (or its successors or assigns) has timely paid all Rent due under this Lease during the first 12 calendar month period following the Commencement Date, and if (a) an initial public offering of equity securities of Tenant (or its successors or assigns) under the Securities Act of 1933, as amended, which results in Tenant’s (or its successor’s or assign’s) stock being traded on the NYSE, the NASDAQ Stock Market or the NASDAQ Small Cap Market System, or (b) the assignment of the Lease to an entity whose stock is then being traded on the NYSE, the NASDAQ Stock Market or the NASDAQ Small Cap Market System, does not occur within the first 12 calendar month period following the Commencement Date, or the initial public offering or assignment (as the case may be) does not result in Tenant (or its successors or assigns) achieving a net worth of at least $30,000,000.00 as of the day following the date of the initial public offering or the assignment (as the case may be). Guarantor shall have the right upon written notice to Landlord to be relieved of their responsibility under this Guaranty for all obligations of Tenant (or its successors or assigns as the case may be) occurring after the first 12 calendar month period following the Commencement Date, so long as Tenant (or its successors or assigns as the case may be) concurrently with such notice provides a security deposit to Landlord in the amount of $164,750.00 in the form and upon the conditions as set forth in Section 6 of the Lease. Notwithstanding anything to the contrary contained herein, however, if Tenant (or its successors or assigns) has been in default under this Lease at any time prior to the relieving of Guarantor’s obligations exceed Lessee’s obligations under pursuant to this Guaranty or the Lease except to the extent Lessee is relieved of any such obligation by reason of any bankruptcy or other like filing or order. If Lessee shall at any time default in the punctual payment, performance and observance of any substitution of the amounts, terms, covenants or conditions in the Lease contained on Lessee’s part security deposit pursuant to be paid, kept, performed and observed (after applicable notice and cure period), Guarantor will pay, keep, perform and observe samethis Guaranty, as the case may be, in the place and stead of Lessee. Guarantor shall also pay to Lessor all reasonable and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessor, Tenant (or its successors or assignsassigns as the case may be) has failed to cure such default within any applicable cure period, consisting then Guarantor shall have no right to be relieved of their obligations under this Guaranty or to substitute a waiver Security Deposit for the Guaranty. The maintenance of any action or proceeding by Landlord to recover any sum or sums that may be or become due under the Lease and to secure the performance of any of the terms or other terms, covenants and conditions of the Lease shall not preclude Landlord from thereafter instituting and maintaining subsequent actions or proceedings for any subsequent default or defaults of Tenant under the Lease. The undersigned does hereby consent that without affecting the liability of the undersigned under this Guaranty and without notice to the undersigned, time may be given by Landlord to Tenant for payment of Rent and such other sums and performance of said other terms, covenants and conditions, or any of them, and such time extended and indulgence granted, from time to time, or Tenant may be dispossessed or Landlord may avail itself of or exercise any or all of the rights and remedies against Tenant provided by law or by the Lease, and may proceed either against Tenant alone or jointly against Tenant and the giving of undersigned or against the undersigned alone without first prosecuting or exhausting any remedy or claim against Tenant. The undersigned does hereby further consent to any matter subsequent change, modification or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunder. The obligations of Guarantor hereunder shall not be released by Lessor’s receipt, application or release of any security given for the performance and observance of any covenant or condition in the Lease contained on Lessee’s part to be performed or observed, nor by any modification of the Lease, regardless of whether Guarantor consents thereto or receives notice thereof. The liability of Guarantor hereunder shall in no way be affected by: (a) the release or discharge of Lessee in any creditor’s, receivership, bankruptcy or other proceeding; (b) the impairment, limitation or modification of the liability of Lessee or the estate of Lessee in bankruptcy, or of any remedy for the enforcement of Lessee’s liability under the Lease resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other statutes or from the decision of any court; (c) the rejection or disaffirmance amendment of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Lessee; (e) any disability or other defense of Lessee; (f) the cessation from any cause whatever of the liability of Lessee; (g) the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the Lease. If Lessee shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any court, Guarantor shall pay to Lessor the amount of all accrued, unpaid and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any of the terms, covenants or conditions conditions, or in the Rent payable thereunder, or in the premises demised thereby, or in the term thereof, and to any assignment or assignments of the Lease Lease, and to any subletting or sublettings of the premises demised by the Lease, and to any renewals or extensions thereof, all of which may be made without notice to or consent of the undersigned and without in any manner releasing or relieving the undersigned from liability under this Guaranty. Guarantor may be joined in any action against Lessee in connection with The undersigned does hereby agree that the bankruptcy of Tenant shall have no effect on the obligations of Lessee under the Lease and recovery may be had against Guarantor undersigned hereunder. The undersigned does hereby further agree that in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions in the Lease on Lessee’s part to be performed and observed are fully performed and observed, Guarantor: (a) shall have no right of subrogation against Lessee by reason respect of any payment or performance payments made by Guarantor the undersigned hereunder; and (b) subordinates any liability or indebtedness of Lessee now or hereafter held by Guarantor to the obligations of Lessee to Lessor under the Lease. This Guaranty shall apply to the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following the Lease term granted under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for have any incremental increase rights based on suretyship, subrogation or otherwise to stand in Rent or other obligation the place of Landlord so as to compete with Landlord as a creditor of Tenant, unless and until all claims of Landlord under the Lease or for or during shall have been fully paid and satisfied. Neither this Guaranty nor any extension of the Lease term resulting from an amendment to the Lease between Lessor and such Third Party Assignee which provides for an increase in Rent provisions hereof can be modified, waived or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised terminated, except by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of any defaults instrument signed by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the LeaseLandlord. In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all of the undersigned; (b) each provision The provisions of this Guaranty shall be binding on each one apply to, bind and inure to the benefit of the undersignedundersigned and Landlord and their respective heirs, who legal representatives, successors and assigns. The undersigned shall be jointly and severally liable hereunder; , and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery of Guarantor’s last published financial information shall be satisfactory for purposes of such several liability the word “undersigned” wherever used herein shall be construed to refer to each of the undersigned parties separately, all in the same manner and with the same effect as if each of them had signed separate instruments, and this Paragraph. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may Guaranty shall not be changedrevoked or impaired as to any of such parties by the death of another party or by revocation or release of any obligations hereunder of any other party. If Landlord should retain counsel and/or institute any suit against Guarantor to enforce this Guaranty or any covenants or obligations hereunder, modifiedthen Guarantor shall pay to Landlord, discharged or terminated orally or upon demand, all reasonable attorneys’ fees, costs and expenses, including, without limitation, court costs, filing fees, recording costs, and all other costs and expenses incurred in any manner connection therewith (all of which are referred to herein as “Enforcement Costs”), in addition to all other than by an agreement in writing signed by Guarantor and Lessoramounts due hereunder. This Guaranty shall be governed by and construed in accordance with the internal laws of the State of Illinois. Every notice, demand or request (collectively “Notice”) required hereunder or state where the premises demised by law to be given by either party to the other shall be in writing. Notices shall be given by personal service or by United States certified or registered mail, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served at the address indicated below or such other address as the party to be served may from time to time designate in a Notice to the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor in are located. For the state courts purpose solely of litigating any dispute under this Guaranty, the State of Illinois. Guarantor hereby consents undersigned submits to the jurisdiction of such Court for such purposesthe courts of said state. Any noticenotice or other communication to be given to Landlord or the undersigned hereunder shall be in writing and sent in accordance with the notice provisions of the Lease. Notices to Landlord shall be delivered to Landlord’s address set forth in the Lease. Notices to the undersigned shall be addressed as follows: . If Guarantor’s notice address as set forth above changes, complaint Guarantor agrees to provide written notice to Landlord of such change in address. If Guarantor’s notice address is not filled in at the above blank, or legal process so delivered shall constitute adequate if the Guarantor’s notice and service of process address is a post office box address, then, for all purposes and shall subject Guarantor to the jurisdiction of such Court for purposes of adjudicating any matter related to under this Guaranty. Lessor and Guarantor hereby waive their respective rights , Landlord may send all notices under this Guaranty to trial by jury of any cause of actionGuarantor, claimc/o Tenant, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, at the same notice address Landlord uses for the Tenant under the Lease, or this Guaranty. This Guaranty may and any notice delivered in accordance with the foregoing shall be assigned in whole or part by Lessor upon written notice deemed to have been properly delivered to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld in Lessor’s sole and absolute discretion. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties hereto.
Appears in 1 contract
GUARANTY OF LEASE. THIS GUARANTY OF LEASE (“Guaranty”) This guaranty of Lease is entered into as attached to and is hereby made a part of July 5that certain Lease dated August 28, 2019, by Ascend Wellness Holdings1996 between Bay West Design Center, LLC, an Illinois a Delaware limited liability company company, successor in interest to Pacific Northwest Group B, a joint venture, (“Guarantor”"Lessor"), for the benefit of LCR 1014 EASTPORT PLAZAand Net Information Systems, LLC Inc. a Washington corporation, which has been assigned to Design Automation Systems, Inc., a Texas corporation dba EpicEdge (“Lessor”"Lessee"), with reference pursuant to the following facts: Lessor Assignment and HealthCentral Illinois HoldingsAssumption of Lessee's Interest and Lessor's Consent dated December 9, LLC (“Lessee”), have entered or will enter into a lease of even date herewith 1999 (the “Lease”"Assignment"). Capitalized terms used but not otherwise defined herein shall have the same meaning ascribed For value received and in consideration of and as in inducement to them in the Lease. By its covenants herein set forth, Guarantor has induced Lessor to enter entering into the Lease, which was made Lease and entered into in consideration for Guarantor’s said covenants. Subject consenting to the terms set forth hereinAssignment, Guarantor the undersigned guarantor ("Guarantor") unconditionally guaranteesand continuously guarantees to Lessor, without deduction by reason of setoff, defense or counterclaim, to Lessor and its successors and assigns assigns, the full and punctual payment (and not merely the collectability)timely payment, performance and observance by Lessee, Lessee of all terms and conditions of the amounts, terms, covenants and conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed. Notwithstanding the foregoing, in no event shall the scope of Guarantor’s obligations exceed Lessee’s obligations under the Lease except to the extent Lessee is relieved of any such obligation by reason of any bankruptcy or other like filing or order. If Lessee shall at any time default in the punctual payment, performance and observance of any of the amounts, terms, covenants or conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed (after applicable notice and cure period), Guarantor will pay, keep, perform and observe same, as the case may be, in the place and stead of by Lessee. Guarantor shall also pay to Lessor all reasonable This Guaranty and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessor, or its successors or assigns, consisting of a waiver of any of the terms or conditions of the Lease, the giving of any consent to any matter or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunder. The obligations of Guarantor hereunder shall not be released terminated or impaired by Lessor’s receipt, application or release reason of the granting by Lessor of any security given for indulgences to Lessee or the assertion by Lessor against Lessee of any of Lessor's rights or remedies under the Lease, or by the relief of Lessee from any of Lessee's obligations under the Lease by operation of law or otherwise, whether or not Guarantor has received notice of same. Guarantor waives all suretyship defenses and waives notice of any breach by Lessee. This Guaranty shall continue in full force and effect as to any renewal, amendment, modification, extension, assignment or transfer of the Lease or any subletting of the Lease premises, whether or not Guarantor shall have received notice of or consented to the same. The liability of Guarantor under this Guaranty is primary and absolute, and Lessor may at its option proceed against Guarantor without proceeding against Lessee. Any action against Guarantor may be brought in the county in which the Lease premises are located, or in King County, Washington, at Lessor's option. Lessor's delay or failure to insist upon the strict performance and or observance of any covenant obligation of Lessee under the Lease or to exercise any right or remedy available under the Lease or at law or in equity, shall not be construed to be a waiver of Lessor's prerogative to insist upon such strict performance or observance or to exercise any such right or remedy. Receipt by Lessor of rent or other payment with knowledge of a breach of any term or condition in of the Lease contained on Lessee’s part shall not be construed to be performed or observed, nor by any modification a waiver of the Lease, regardless of whether Guarantor consents thereto or receives notice thereofsuch breach. The liability of Guarantor hereunder shall in no way not be affected or limited by: (a) the release or discharge of Lessee in any creditor’s's, receivership, bankruptcy or other proceeding; (b) proceedings, the impairment, limitation or modification of the liability of the Lessee or the estate of the Lessee in bankruptcy, or of any remedy for the enforcement of Lessee’s 's said liability under the Lease Lease, resulting from the operation operations of any present or future provision of the Federal Bankruptcy Code federal bankruptcy laws or other statutes or from the decision of in any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Lessee; (e) any disability or other defense of Lessee; (f) or the cessation cessation, from any cause whatever whatsoever, of the liability of Lessee; (g) . Until all the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the Lease. If Lessee shall become insolvent or be adjudicated bankruptterms, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any court, Guarantor shall pay to Lessor the amount of all accrued, unpaid conditions and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion agreements of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any of the terms, covenants or conditions of the Lease or of this Guaranty. Guarantor may be joined in any action against Lessee in connection with the obligations of Lessee under the Lease and recovery may be had against Guarantor in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions in the Lease on Lessee’s part to be performed and observed are fully performed and observedobserved by Lessee, Guarantor: (a) Guarantor hereby waives the right to enforce any claim, right or remedy which Guarantor now has or hereafter shall have no right of subrogation against Lessee by reason of any payment one or more payments or acts of performance by in compliance with the obligations of Guarantor hereunder; , and (b) Guarantor hereby subordinates any liability or indebtedness of Lessee now or hereafter held by Guarantor to the obligations of Lessee to Lessor under the Lease. This Guaranty shall apply inure to the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following the Lease term granted under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions benefit of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension of the Lease term resulting from an amendment to the Lease between Lessor Lessor, its affiliates, successors and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised by said Third Party Assigneeassigns, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of any defaults by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Lease. In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all of the undersigned; (b) each provision of this Guaranty shall be binding on each one of upon the undersigned, who shall be jointly successors and severally liable hereunder; and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery assigns of Guarantor’s last published financial information shall be satisfactory for purposes of this Paragraph. This instrument constitutes the entire agreement between Lessor Guaranty is irrevocable and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may not be changed, modifiedaffected, discharged or terminated orally or in any manner other than by an agreement in writing signed by Guarantor and Lessor. This Guaranty Guarantor shall pay all costs and expenses paid or incurred by Lessor in enforcing either the Lease or this Guaranty, including court costs and a reasonable amount for legal services performed by counsel, whether employed or retained by Lessor. Dated this 20 day of January, 2000. Design Automation Systems, Inc. ________________________ 0000 Xxxxxxxx, Xxxxx 000, Xxxxxxx, XX By: Xxxxxxx Xxxxxx, President (000)000-0000 ASSIGNOR: STATE OF WASHINGTON) )SS. COUNTY OF KING ) On this 19th day of January 2000, personally appeared before me Xxxx Xxxxxxxx, to me known to be governed by the President of the corporation that executed the within instrument, and construed acknowledged to me that he was authorized to sign the same on behalf of the corporation as its free and voluntary act and deed for the uses and purposes therein mentioned. ____________________ NOTARY PUBLIC in accordance with the laws of and for the State of IllinoisWashington, residing at Seattle My commission expires: 12/09/02 ASSIGNEE: STATE OF TEXAS ) )SS. Every noticeCOUNTY OF XXXXXX) On this 20th day of January 2000, demand or request (collectively “Notice”) required hereunder or by law personally appeared before me Xxxxxxx Xxxxxx, to me known to be given by either party the President of the corporation that executed the within instrument, and acknowledged to me that he was authorized to sign the other shall be same on behalf of the corporation as its free and voluntary act and deed for the uses and purposes therein mentioned. ____________________ NOTARY PUBLIC in writing. Notices shall be given by personal service or by United States certified or registered mail, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served at the address indicated below or such other address as the party to be served may from time to time designate in a Notice to the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor in the state courts of and for the State of IllinoisTexas, residing at Houston My commission expires: 11/24/03 LESSOR: STATE OF WASHINGTON) )SS. Guarantor hereby consents COUNTY OF KING ) On this 17th day of February 2000, before me personally appeared Xxxxxxx Xxxxxxxx, to me known to be the jurisdiction Executive Vice President of such Court for such purposes. Any noticeBW Seattle Corp., complaint or legal process so delivered shall constitute adequate notice and service of process for all purposes and shall subject Guarantor to the jurisdiction of such Court for purposes of adjudicating any matter related to this Guaranty. Lessor and Guarantor hereby waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease, or this Guaranty. This Guaranty may be assigned in whole or part by Lessor upon written notice to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consenta Washington corporation, which may is manager of Bay West Design Center,LLC, a Delaware limited liability liability company, Lessor, that executed the within and foregoing instrument, and acknowledged the said instrument to be withheld in Lessor’s sole the free and absolute discretion. The terms voluntary act and provisions deed of this Guaranty shall be binding upon said property manager, for the uses and inure purposes therein mentioned, and an oath stated that he was authorized to execute the benefit of the heirs, personal representatives, successors and permitted assigns of the parties heretosaid instrument.
Appears in 1 contract
Samples: Assignment and Assumption Agreement (Design Automation Systems Inc)
GUARANTY OF LEASE. THIS GUARANTY OF LEASE FOR VALUE RECEIVED and in consideration for and as an inducement to IL-TRI-STATE INTERNATIONAL, L.L.C., a Delaware limited liability company (“GuarantyLandlord”) is entered into as of July 5to lease certain real property to OPEN TEXT, 2019, by Ascend Wellness Holdings, LLCINC., an Illinois limited liability company corporation (“Tenant”), pursuant to a lease dated October 24, 2003 (the “Lease”) by and between Landlord and Tenant, the undersigned, OPEN TEXT CORPORATION, an Ontario corporation (“Guarantor”), for does hereby unconditionally and irrevocably guarantee to Landlord the benefit punctual payment of LCR 1014 EASTPORT PLAZA, LLC all Rent (“Lessor”), with reference to the following facts: Lessor and HealthCentral Illinois Holdings, LLC (“Lessee”), have entered or will enter into a lease of even date herewith (the “Lease”). Capitalized terms used but not otherwise as such term is defined herein shall have the same meaning ascribed to them in the Lease. By its covenants herein set forth, Guarantor has induced Lessor ) payable by Tenant under the Lease throughout the term of the Lease and any and all renewals and extensions thereof in accordance with and subject to enter into the provisions of the Lease, which was made and entered into in consideration for Guarantor’s said covenants. Subject to the terms set forth herein, Guarantor unconditionally guarantees, without deduction by reason of setoff, defense or counterclaim, to Lessor and its successors and assigns the full and punctual payment (and not merely the collectability), performance and observance by Lessee, of all other terms, covenants, conditions and agreements therein provided to be performed and observed by Tenant under the terms of the amountsLease, for which the undersigned shall be jointly and severally liable with Tenant. If any default on the part of Tenant shall occur under the Lease, the undersigned does hereby covenant and agree to pay to Landlord in each and every instance such sum or sums of money and to perform each and every covenant, condition and agreement under the Lease as Tenant is and shall become liable for or obligated to pay or perform under the Lease, together with the costs reasonably incurred by Landlord in connection therewith, including, without limitation, reasonable attorneys’ fees. Such payments of Rent and other sums shall be made monthly or at such other intervals as the same shall or may become payable under the Lease, including any accelerations thereof, all without requiring any notice from Landlord (other than any notice required by the Lease) of such non-payment or non performance, all of which the undersigned hereby expressly waives. The maintenance of any action or proceeding by Landlord to recover any sum or sums that may be or become due under the Lease and to secure the performance of any of the other terms, covenants and conditions in of the Lease contained on Lessee’s part to be paid, kept, performed shall not preclude Landlord from thereafter instituting and observed. Notwithstanding the foregoing, in no event shall the scope maintaining subsequent actions or proceedings for any subsequent default or defaults of Guarantor’s obligations exceed Lessee’s obligations Tenant under the Lease except Lease. The undersigned does hereby consent that without affecting the liability of the undersigned under this Guaranty and without notice to the extent Lessee is relieved undersigned, time may be given by Landlord to Tenant for payment of any Rent and such obligation by reason other sums and performance of any bankruptcy or said other like filing or order. If Lessee shall at any time default in the punctual payment, performance and observance of any of the amounts, terms, covenants or conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed (after applicable notice and cure period), Guarantor will pay, keep, perform and observe same, as the case may be, in the place and stead of Lessee. Guarantor shall also pay to Lessor all reasonable and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessorconditions, or its successors or assigns, consisting of a waiver of any of them, and such time extended and indulgence granted, from time to time, or Tenant may be dispossessed or Landlord may avail itself of or exercise any or all of the terms rights and remedies against Tenant provided by law or conditions of by the Lease, and may proceed either against Tenant alone or jointly against Tenant and the giving of undersigned or against the undersigned alone without first prosecuting or exhausting any remedy or claim against Tenant. The undersigned does hereby further consent to any matter subsequent change, modification or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunder. The obligations of Guarantor hereunder shall not be released by Lessor’s receipt, application or release of any security given for the performance and observance of any covenant or condition in the Lease contained on Lessee’s part to be performed or observed, nor by any modification of the Lease, regardless of whether Guarantor consents thereto or receives notice thereof. The liability of Guarantor hereunder shall in no way be affected by: (a) the release or discharge of Lessee in any creditor’s, receivership, bankruptcy or other proceeding; (b) the impairment, limitation or modification of the liability of Lessee or the estate of Lessee in bankruptcy, or of any remedy for the enforcement of Lessee’s liability under the Lease resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other statutes or from the decision of any court; (c) the rejection or disaffirmance amendment of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Lessee; (e) any disability or other defense of Lessee; (f) the cessation from any cause whatever of the liability of Lessee; (g) the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the Lease. If Lessee shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any court, Guarantor shall pay to Lessor the amount of all accrued, unpaid and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any of the terms, covenants or conditions conditions, or in the Rent payable thereunder, or in the premises demised thereby, or in the term thereof, and to any assignment or assignments of the Lease Lease, and to any subletting or sublettings of the premises demised by the Lease, and to any renewals or extensions thereof, all of which may be made without notice to or consent of the undersigned and without in any manner releasing or relieving the undersigned from liability under this Guaranty. Guarantor may be joined in any action against Lessee in connection with The undersigned does hereby agree that the bankruptcy of Tenant shall have no effect on the obligations of Lessee under the Lease and recovery may be had against Guarantor undersigned hereunder. The undersigned does hereby further agree that in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions in the Lease on Lessee’s part to be performed and observed are fully performed and observed, Guarantor: (a) shall have no right of subrogation against Lessee by reason respect of any payment or performance payments made by Guarantor the undersigned hereunder; and (b) subordinates any liability or indebtedness of Lessee now or hereafter held by Guarantor to the obligations of Lessee to Lessor under the Lease. This Guaranty shall apply to the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following the Lease term granted under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for have any incremental increase rights based on suretyship, subrogation or otherwise to stand in Rent or other obligation the place of Landlord so as to compete with Landlord as a creditor of Tenant, unless and until all claims of Landlord under the Lease or for or during shall have been fully paid and satisfied. Neither this Guaranty nor any extension of the Lease term resulting from an amendment to the Lease between Lessor and such Third Party Assignee which provides for an increase in Rent provisions hereof can be modified, waived or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised terminated, except by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of any defaults instrument signed by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the LeaseLandlord. In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all of the undersigned; (b) each provision The provisions of this Guaranty shall be binding on each one apply to, bind and inure to the benefit of the undersigned and Landlord and their respective heirs, legal representatives, successors and assigns. The undersigned, who if there be more than one, shall be jointly and severally liable hereunder; , and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery of Guarantor’s last published financial information shall be satisfactory for purposes of such several liability the word “undersigned” wherever used herein shall be construed to refer to each of the undersigned parties separately, all in the same manner and with the same effect as if each of them had signed separate instruments, and this Paragraph. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may Guaranty shall not be changedrevoked or impaired as to any of such parties by the death of another party or by revocation or release of any obligations hereunder of any other party. If Landlord should retain counsel and/or institute any suit against Guarantor to enforce this Guaranty or any covenants or obligations hereunder, modifiedthen Guarantor shall pay to Landlord, discharged upon demand, all reasonable attorneys’ fees, costs and expenses, including, without limitation, court costs, filing fees, recording costs, and all other costs and expenses incurred in connection therewith (all of which are referred to herein as “Enforcement Costs”), which may be or terminated orally or become due hereunder, in any manner addition to all other than by an agreement in writing signed by Guarantor and Lessoramounts due hereunder. This Guaranty shall be governed by and construed in accordance with the internal laws of the State of Illinois. Every notice, demand or request (collectively “Notice”) required hereunder or state where the premises demised by law to be given by either party to the other shall be in writing. Notices shall be given by personal service or by United States certified or registered mail, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served at the address indicated below or such other address as the party to be served may from time to time designate in a Notice to the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor in are located. For the state courts purpose solely of litigating any dispute under this Guaranty, the State of Illinois. Guarantor hereby consents undersigned submits to the jurisdiction of such Court for such purposesthe courts of said state. Any notice, complaint notice or legal process so other communication to be given to Landlord or the undersigned hereunder shall be in writing and sent in accordance with the notice provisions of the Lease. Notices to Landlord shall be delivered shall constitute adequate notice and service of process for all purposes and shall subject Guarantor to Landlord’s address set forth in the Lease. Notices to the jurisdiction of such Court for purposes of adjudicating any matter related undersigned shall be addressed as follows: . If Guarantor’s notice address as set forth above changes, Guarantor agrees to this Guaranty. Lessor and Guarantor hereby waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease, or this Guaranty. This Guaranty may be assigned in whole or part by Lessor upon provide written notice to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld Landlord of such change in Lessor’s sole and absolute discretion. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties heretoaddress.
Appears in 1 contract
GUARANTY OF LEASE. THIS GUARANTY OF LEASE (“Guaranty”) is entered into made as of July 5the 7th day of December, 2019, by Ascend Wellness Holdings2009 between Centrup Hospitality, LLC, an Illinois a Michigan limited liability company (“Guarantor”)company, for as Landlord, and AMC Marquette, Inc., a Michigan corporation, as Tenant. In consideration of and to induce the benefit execution and delivery of LCR 1014 EASTPORT PLAZAthat certain Lease December 7, LLC (“Lessor”)2009, with reference to the following facts: Lessor and HealthCentral Illinois Holdings, LLC (“Lessee”), have entered or will enter into a lease of even date herewith (the “Lease”). Capitalized terms used but not otherwise defined herein shall have ) between Landlord and Tenant, for a certain premises (the same meaning ascribed to them “Premises”) as more particularly described in the Lease. By its covenants herein set forth, Guarantor has induced Lessor to enter into hereby agrees as follows:
1. For the Lease, which was made and entered into in consideration for Guarantor’s said covenants. Subject to first five (5) Lease Years of the terms set forth hereinLease only, Guarantor unconditionally guarantees, without deduction by reason of setoff, defense or counterclaim, guaranties to Lessor and its successors and assigns Landlord the full and punctual payment (of all rents and not merely other sums payable by Tenant under the collectability)Lease, and the full and punctual performance and observance by Lessee, of all of the amounts, terms, covenants and conditions in on the Lease contained on Lessee’s part of Tenant to be paid, kept, performed and observed. Notwithstanding the foregoing, in no event shall the scope of Guarantor’s obligations exceed Lessee’s obligations observed under the Lease except (collectively the “Tenant Obligations”). Guarantor further agrees to indemnify and hold Landlord harmless for any loss, liability, damage or expense (including reasonable attorney’s fees) arising from the extent Lessee is relieved failure of any such obligation by reason of any bankruptcy or other like filing or order. If Lessee shall at any time default in the punctual payment, performance and observance of Tenant to timely perform any of the amounts, terms, covenants or conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed (after applicable notice and cure period), Guarantor will pay, keep, perform and observe same, as the case may be, in the place and stead of Lessee. Guarantor shall also pay to Lessor all reasonable and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessor, or its successors or assigns, consisting of a waiver of any of the terms or conditions of the Lease, the giving of any consent to any matter or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunder. The obligations of Guarantor hereunder shall not be released by Lessor’s receipt, application or release of any security given for the performance and observance of any covenant or condition in the Lease contained on Lessee’s part to be performed or observed, nor by any modification of the Lease, regardless of whether Guarantor consents thereto or receives notice thereof. The liability of Guarantor hereunder shall in no way be affected by: (a) the release or discharge of Lessee in any creditor’s, receivership, bankruptcy or other proceeding; (b) the impairment, limitation or modification of the liability of Lessee or the estate of Lessee in bankruptcy, or of any remedy for Tenant Obligations and/or the enforcement of Lesseethis Guaranty during such period. Upon Tenant’s liability default under the Lease resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other statutes or from the decision of any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease and upon demand by Lessee; (e) any disability or other defense of Lessee; (f) the cessation from any cause whatever of the liability of Lessee; (g) the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the Lease. If Lessee shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any courtLandlord, Guarantor shall pay or perform the Tenant Obligations so in default, as applicable, without offset, deduction or counterclaim.
2. This is a guaranty of payment and not of collection. Landlord shall not be required to Lessor the amount of all accrued, unpaid and accruing rent and pursue any remedies that it may have against Tenant or pursue any security deposit or other charges due under the Lease and all principal and interest and security or other charges under parties as a condition to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any of the terms, covenants or conditions of the Lease or enforcement of this Guaranty, it being intended that Guarantor’s obligations under this Guaranty shall be independent of, and in addition to, the Tenant Obligations. It is understood and agreed that Guarantor may be joined in any action against Lessee in connection with the obligations of Lessee under the Lease Tenant and that recovery may be had against Guarantor in any such action, or in any independent action against Guarantor.
3. Lessor may Guarantor waives notice of any breach or default by Tenant under the Lease, notice of acceptance of this Guaranty, and all suretyship defenses generally. The foregoing provisions shall apply without limitation to Landlord’s waiver of or failure to enforce any Tenant Obligations and/or Landlord’s granting extensions of time of performance to Tenant.
4. This Guaranty shall be absolute and continuing.
(a) Any modification, amendment or other alteration of the Lease;; any assignment of the Lease or any sublease; any release of any other party liable for the Tenant Obligations or any release of security held by Landlord for the performance of the Tenant Obligations; or any sublease of all or a portion of the Premises; and Guarantor consents to any and all of the foregoing;
(b) Any disability or other defense of Tenant, or the cessation from any other cause whatsoever of the liability of Tenant under the Lease. The obligations and liability of Guarantor under this Guaranty shall continue in effect until all Tenant Obligations accruing during the first five (5) Lease Years of the initial term of the Lease have been fully paid and satisfied. If at any time payment of any of the Tenant Obligations is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Tenant, the obligations of the Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may holdwith respect to such payment shall be reinstated at such time as though such payment had not been made.
5. Until all of the covenants and conditions in the Lease on Lessee’s part to be performed and observed Tenant Obligations are fully performed paid and observedsatisfied, Guarantor: Guarantor (a) shall have no right of subrogation against Lessee Tenant by reason of Guarantor’s performance under this Guaranty or monies or obligations owed by Tenant to Guarantor, (b) waives any payment right to enforce any remedy which Guarantor now has or may hereafter have against Tenant by reason of Guarantor’s performance by Guarantor hereunder; under this Guaranty, and (bc) subordinates any liability or indebtedness of Lessee Tenant now or hereafter held by or owed to Guarantor to the obligations of Lessee to Lessor under the LeaseTenant Obligations.
6. This Guaranty shall apply to and the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following obligations of the Lease term granted Guarantor under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension of the Lease term resulting from an amendment to the Lease between Lessor and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of any defaults by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Lease. In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all of the undersigned; (b) each provision of this Guaranty shall be binding on each one of the undersigned, who shall be jointly and severally liable hereunder; and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery of Guarantor’s last published financial information shall be satisfactory for purposes of this Paragraph. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may not be changed, modified, discharged discharged, waived or terminated orally or in any manner other than except by an agreement in writing signed by Guarantor and LessorLandlord and approved by the holder of any first mortgage on the Premises.
7. This Guaranty shall bind Guarantor and the successors and assigns of Guarantor. This Guaranty may be freely assigned, transferred or hypothecated by Landlord and shall run in favor and inure to the benefit of Landlord, its successors and assigns, and each subsequent holder of Landlord’s interest under the Lease. References to the term “Tenant” shall be deemed to include Tenant’s successors and assigns. This Guaranty may be assigned by Landlord but may not be assigned by Tenant.
8. This Guaranty shall be governed by and construed in accordance with the laws of the State of IllinoisMichigan law. Every notice, demand or request (collectively “Notice”) required hereunder or by law Guarantor agrees to be given by either party to the other shall be in writing. Notices shall be given by personal service or by United States certified or registered mail, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served at the address indicated below or such other address as the party to be served may from time to time designate in a Notice to the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor in the state courts of the State of Illinois. Guarantor hereby consents subject to the jurisdiction of such Court for such purposes. Any noticethe appropriate courts of Michigan, complaint or legal process so delivered shall constitute adequate notice and to accept service of process for all purposes in any action brought in Michigan, and Guarantor waives any objection to personal jurisdiction in such action.
9. Notices to the Guarantor shall be sent by certified or registered mail to the address set forth below Guarantor’s signature and shall subject Guarantor be effective upon receipt. Alternatively, notices may be sent by Federal Express or other recognized delivery service and shall be effective upon delivery to the jurisdiction of such Court for purposes of adjudicating any matter related above address. Guarantor may change its address by giving written notice to Landlord in accordance with this provision.
10. Guarantor represents and warrants that it has the legal right and capacity to execute this Guaranty. Lessor WITNESS the following signature(s) and Guarantor hereby waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease, or this Guaranty. This Guaranty may be assigned in whole or part by Lessor upon written notice to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld in Lessor’s sole and absolute discretion. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit seal(s) as of the heirsday and year first above written. INDIVIDUAL GUARANTOR(S) CORPORATE GUARANTOR NAME OF CORPORATION AMC Wings, personal representativesInc., successors and permitted assigns a Michigan corporation Name: SSN: Address: By: T. Xxxxxxx Xxxxxx (SEAL) T. Xxxxxxx Xxxxxx Title: President STATE OF MICHIGAN ) ) ss COUNTY OF OAKLAND ) The foregoing instrument was acknowledged before me this 7th day of the parties hereto.December, 2009, by T. Xxxxxxx Xxxxxx. /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx, Notary Public My Commission Expires: July 31, 2015
Appears in 1 contract
GUARANTY OF LEASE. THIS GUARANTY OF LEASE (“Guaranty”) is entered into FOR VALUE RECEIVED and in consideration for and as of July 5, 2019, by Ascend Wellness Holdingsan inducement to XXXXX GLOBAL REIT RIVERSIDE CENTER, LLC., an Illinois a Delaware limited liability company (“GuarantorLandlord”) to lease certain real property to CLEMENTIA PHARMACEUTICALS USA, INC., a Delaware corporation, as tenant (“Tenant”), for the benefit of LCR 1014 EASTPORT PLAZA, LLC (“Lessor”), with reference pursuant to the following facts: Lessor and HealthCentral Illinois Holdings, LLC (“Lessee”), have entered or will enter into a lease of even date herewith (the “Lease”) by and between Landlord and Tenant, CLEMENTIA PHARMACEUTICALS, INC., a Quebec corporation (“Guarantor”). Capitalized terms used but not otherwise , does hereby unconditionally and irrevocably guarantee to Landlord the punctual payment of all Rent (as such term is defined herein shall have the same meaning ascribed to them in the Lease. By its covenants herein set forth, Guarantor has induced Lessor ) payable by Tenant under the Lease throughout the term of the Lease and any and all renewals and extensions thereof in accordance with and subject to enter into the provisions of the Lease, which was made and entered into in consideration for Guarantor’s said covenants. Subject to the terms set forth herein, Guarantor unconditionally guarantees, without deduction by reason of setoff, defense or counterclaim, to Lessor and its successors and assigns the full and punctual payment (and not merely the collectability), performance and observance by Lessee, of all other terms, covenants, conditions and agreements therein provided to be performed and observed by Tenant under the terms of the amountsLease, for which the undersigned shall be jointly and severally liable with Tenant. If any default on the part of Tenant shall occur under the Lease, the undersigned do hereby covenant and agree to pay to Landlord in each and every instance such sum or sums of money and to perform each and every covenant, condition and agreement under the Lease as Tenant is and shall become liable for or obligated to pay or perform under the Lease, together with the costs reasonably incurred by Landlord in connection therewith, including, without limitation, reasonable attorneys’ fees. Such payments of Rent and other sums shall be made monthly or at such other intervals as the same shall or may become payable under the Lease, including any accelerations thereof, all without requiring any notice from Landlord (other than any notice required by the Lease) of such non-payment or non¬performance, all of which the undersigned hereby expressly waives. The maintenance of any action or proceeding by Landlord to recover any sum or sums that may be or become due under the Lease and to secure the performance of any of the other terms, covenants and conditions in of the Lease contained on Lessee’s part to be paid, kept, performed shall not preclude Landlord from thereafter instituting and observed. Notwithstanding the foregoing, in no event shall the scope maintaining subsequent actions or proceedings for any subsequent default or defaults of Guarantor’s obligations exceed Lessee’s obligations Tenant under the Lease except Lease. The undersigned does hereby consent that without affecting the liability of the undersigned under this Guaranty and without notice to the extent Lessee is relieved undersigned, time may be given by Landlord to Tenant for payment of any Rent and such obligation by reason other sums and performance of any bankruptcy said other terms, covenants and conditions, or other like filing or order. If Lessee shall at any time default in the punctual payment, performance and observance of any of them, and such time extended and indulgence granted, from time to time, or Tenant may be dispossessed or Landlord may avail itself of or exercise any or all of the amountsrights and remedies against Tenant provided by law or by the Lease, and may proceed either against Tenant alone or jointly against Tenant and the undersigned, or against the undersigned alone without first prosecuting or exhausting any remedy or claim against Tenant. The undersigned does hereby further consent to any subsequent change, modification or amendment of the Lease in any of its terms, covenants or conditions conditions, or in the Lease contained on Lessee’s part to be paidRent payable thereunder, kept, performed and observed (after applicable notice and cure period), Guarantor will pay, keep, perform and observe same, as the case may be, or in the place and stead of Lessee. Guarantor shall also pay to Lessor all reasonable and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessorpremises demised thereby, or its successors in the term thereof, and to any assignment or assigns, consisting of a waiver of any of the terms or conditions assignments of the Lease, the giving of any consent and to any matter subletting or thing relating to sublettings of the premises demised by the Lease, and to any renewals or the granting extensions thereof, all of any indulgence or extension of time to Lessee which may be done made without notice to Guarantor or consent of the undersigned and without in any manner releasing Guarantor or relieving the undersigned from any liability under this Guaranty. The undersigned does hereby agree that the bankruptcy of its Tenant shall have no effect on the obligations of the undersigned hereunder. The obligations undersigned does hereby further agree that in respect of Guarantor hereunder any payments made by the undersigned hereunder, the undersigned shall not be released by Lessor’s receipthave any rights based on suretyship, application subrogation or release of any security given for the performance and observance of any covenant or condition otherwise to stand in the place of Landlord so as to compete with Landlord as a creditor of Tenant, unless and until all claims of Landlord under the Lease contained on Lessee’s part to be performed or observed, shall have been fully paid and satisfied. Neither this Guaranty nor by any modification of the Leaseprovisions hereof can be modified, regardless of whether Guarantor consents thereto waived or receives notice thereofterminated, except by a written instrument signed by Landlord and the undersigned. The liability provisions of this Guaranty shall apply to, bind and inure to the benefit of the undersigned and Landlord and its legal representatives, successors and assigns. If Landlord should retain counsel and/or institute any suit against Guarantor to enforce this Guaranty or any covenants or obligations hereunder, then Guarantor shall pay to Landlord, upon demand, all reasonable attorneys’ fees, costs and expenses, including, without limitation, court costs, filing fees, recording costs, and all other costs and expenses incurred in connection therewith (all of which are referred to herein as “Enforcement Costs”), in addition to all other amounts due hereunder. Guarantor further agrees that the validity of this Guaranty and the obligations hereunder shall in no way be terminated, affected by: (a) the release or discharge of Lessee in any creditor’s, receivership, bankruptcy or other proceeding; (b) the impairment, limitation or modification impaired by reason of the liability of Lessee assertion or the estate of Lessee in bankruptcy, or of any remedy for the enforcement of Lessee’s liability under the Lease resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other statutes or from the decision of any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease waiver by Lessee; (e) any disability or other defense of Lessee; (f) the cessation from any cause whatever of the liability of Lessee; (g) the exercise by Lessor Landlord of any of its the rights or remedies reserved under to Landlord pursuant to the Lease or by law; or (h) any termination terms of the Lease. If Lessee shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any court, Guarantor shall pay to Lessor the amount of all accrued, unpaid and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any of the terms, covenants or conditions of the Lease or of this Guaranty. Guarantor may be joined in any action against Lessee in connection with the obligations of Lessee under the Lease and recovery may be had against Guarantor in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions in the Lease on Lessee’s part to be performed and observed are fully performed and observed, Guarantor: (a) shall have no right of subrogation against Lessee by reason of any payment or performance by Guarantor hereunder; and (b) subordinates any liability or indebtedness of Lessee now or hereafter held by Guarantor to the obligations of Lessee to Lessor under the Lease. This Guaranty shall apply to the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following the Lease term granted under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension of the Lease term resulting from an amendment to the Lease between Lessor and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of any defaults by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Lease. In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all of the undersigned; (b) each provision of this Guaranty shall be binding on each one of the undersigned, who shall be jointly and severally liable hereunder; and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery of Guarantor’s last published financial information shall be satisfactory for purposes of this Paragraph. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may not be changed, modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by Guarantor and Lessor. This Guaranty shall be governed by and construed in accordance with the internal substantive laws of the State Commonwealth of Illinois. Every notice, demand or request Massachusetts (collectively “Notice”) required hereunder or by law to be given by either party without regard to the conflict of law provisions thereof). Guarantor hereby: (i) irrevocably consents and submits to the jurisdiction of the Superior or District Court of Middlesex (South) County and the United States Federal District Court for Massachusetts in respect to any action or proceeding brought therein by Landlord against Guarantor concerning any matters arising out of or in any way relating to this Guaranty or the Lease; (ii) expressly waives any rights of Guarantor pursuant to the laws of any other shall jurisdiction by virtue of which exclusive jurisdiction of the courts of any other jurisdiction might be in writing. Notices shall be given by claimed; (iii) irrevocably waives personal service of any summons and complaint, and consents to the service upon Guarantor of process in any such action or proceeding by United States the mailing of such process by first class, registered or certified or registered mail, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served Guarantor at the address indicated below set forth above and hereby irrevocably designates CT Corporation System, with an address of 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (“Agent”) to accept service of any process on Guarantor’s behalf and hereby agrees that such service shall be deemed sufficient; (iv) irrevocably waives all objections as to venue or inconvenient forum and any and all rights Guarantor may have to seek a change of venue with respect to any such other address as action or proceeding; (v) agrees that the party to be served may from time to time designate in a Notice laws of the Commonwealth of Massachusetts (without giving effect to the conflicts of laws doctrines thereof) shall govern in any such action or proceeding, and waives any defense to any action or proceeding granted or allowed by the laws of any other partycountry or jurisdiction unless such defense is also allowed by the laws of the Commonwealth of Massachusetts; and (vi) agrees that any final judgment rendered against Guarantor in any such action or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by law, and expressly consents to the affirmation of the validity of any such judgment by the courts of any other jurisdiction so as to permit execution thereon. Any Guarantor further agrees that any action or proceeding by Guarantor against Landlord with respect to declare any matters arising out of or enforce in any right or obligation under way relating to the Lease may shall be commenced by Lessor brought only in the state courts Superior or District Court of Middlesex (South) County and the State of IllinoisUnited States Federal District Court for Massachusetts. Guarantor hereby consents represents and agrees that Guarantor will interpose no defense or claim against and shall consent to the issuance of all necessary documents by the courts of any other jurisdiction of in order to execute upon any such Court for such purposesjudgment. Any noticeGuarantor hereby irrevocably and unconditionally waives, complaint or legal process so delivered shall constitute adequate notice and service of process for all purposes and shall subject Guarantor to the jurisdiction fullest extent it may legally and effectively do so, trial by jury in any action or proceeding arising out of such Court for purposes of adjudicating any matter related or relating to this Guaranty. Lessor Any notice or other communication to be given to Landlord or the undersigned hereunder shall be in writing and Guarantor hereby waive their respective rights to trial by jury sent in accordance with the notice provisions of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease. Notices to Landlord shall be delivered to Landlord’s address as set forth in the Lease. Notices to the undersigned shall be addressed as follows: Clementia Pharmaceuticals, or this Guaranty. This Guaranty may be assigned in whole or part by Lessor upon Inc. 0000, xx xx Xxxxxxxxxxx, xxxxx 0000 Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0 If Guarantor’s notice address as set forth above changes, Guarantor agrees to provide written notice to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld Landlord of such change in Lessor’s sole and absolute discretion. The terms and address in accordance with the notice provisions of this Guaranty shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties heretoLease.
Appears in 1 contract
Samples: Office Lease Agreement (Clementia Pharmaceuticals Inc.)
GUARANTY OF LEASE. THIS GUARANTY OF LEASE (“Guaranty”) is entered into as of July 5February 18, 20192020, by Ascend Wellness HoldingsZenlabs Holdings Inc., LLCa British Columbia, an Illinois limited liability company Canada (“Guarantor”), for the benefit of LCR 1014 EASTPORT PLAZAZLCA, LLC LLC, a California limited liability company (“Lessor”), with reference to the following facts: Lessor and HealthCentral Illinois HoldingsZENLEAF, LLC LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (“Lessee”), have entered or will enter into a lease of even date herewith (the “Lease”). Capitalized terms used but not otherwise defined herein shall have the same meaning ascribed to them in the Lease. By its covenants herein set forth, Guarantor has induced Lessor to enter into the Lease, which was made and entered into in consideration for Guarantor’s said covenants. Subject to the terms set forth herein, Guarantor unconditionally guarantees, without deduction by reason of setoff, defense or counterclaim, to Lessor and its successors and assigns the full and punctual payment (and not merely the collectability), performance and observance by Lessee, of all of the amounts, terms, covenants and conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed. Notwithstanding the foregoing, in no event shall the scope of Guarantor’s obligations exceed Lessee’s obligations under the Lease except to the extent Lessee is relieved of any such obligation by reason of any bankruptcy or other like filing or order. If Lessee shall at any time default in the punctual payment, performance and observance of any of the amounts, terms, covenants or conditions in the Lease contained on Lessee’s part to be paid, kept, performed and observed (after applicable notice and cure period), Guarantor will pay, keep, perform and observe same, as the case may be, in the place and stead of Lessee. Guarantor shall also pay to Lessor all reasonable and necessary incidental damages and expenses incurred by Lessor as a direct and proximate result of Lessee’s failure to perform, which expenses shall include reasonable attorneys’ fees and interest on all sums due and owing Lessor by reason of Lessee’s failure to pay same, at the maximum rate allowed by law. Any act of Lessor, or its successors or assigns, consisting of a waiver of any of the terms or conditions of the Lease, the giving of any consent to any matter or thing relating to the Lease, or the granting of any indulgence or extension of time to Lessee may be done without notice to Guarantor and without releasing Guarantor from any of its obligations hereunder. The obligations of Guarantor hereunder shall not be released by Lessor’s receipt, application or release of any security given for the performance and observance of any covenant or condition in the Lease contained on Lessee’s part to be performed or observed, nor by any modification of the Lease, regardless of whether Guarantor consents thereto or receives notice thereof. 1Guaranty The liability of Guarantor hereunder shall in no way be affected by: (a) the release or discharge of Lessee in any creditor’s, receivership, bankruptcy or other proceeding; (b) the impairment, limitation or modification of the liability of Lessee or the estate of Lessee in bankruptcy, or of any remedy for the enforcement of Lessee’s liability under the Lease resulting from the operation of any present or future provision of the Federal Bankruptcy Code or other statutes or from the decision of any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Lessee; (e) any disability or other defense of Lessee; (f) the cessation from any cause whatever of the liability of Lessee; (g) the exercise by Lessor of any of its rights or remedies reserved under the Lease or by law; or (h) any termination of the Lease. If Lessee shall become insolvent or be adjudicated bankrupt, whether by voluntary or involuntary petition, if any bankruptcy action involving Lessee shall be commenced or filed, if a petition for reorganization, arrangement or similar relief shall be filed against Lessee, or if a receiver of any part of Lessee’s property or assets shall be appointed by any court, Guarantor shall pay to Lessor the amount of all accrued, unpaid and accruing rent and other charges due under the Lease and all principal and interest and other charges under to the date when the debtor-in- possession, the trustee or administrator accepts the Lease and commences paying same. At the option of Lessor, Guarantor shall either: (a) pay Lessor an amount equal to the rent and other charges which would have been payable for the unexpired portion of the Lease term reduced to present-day value; or (b) execute and deliver to Lessor a new lease for the balance of the Lease term with the same terms and conditions as the Lease, but with Guarantor as Lessee thereunder. Any operation of any present or future debtor’s relief act or similar act, or law or decision of any court, shall in no way affect the obligations of Guarantor or Lessee to perform any of the terms, covenants or conditions of the Lease or of this Guaranty. Guarantor may be joined in any action against Lessee in connection with the obligations of Lessee under the Lease and recovery may be had against Guarantor in any such action. Lessor may enforce the obligations of Guarantor hereunder without first taking any action whatever against Lessee or its successors and assigns, or pursuing any other remedy or applying any security it may hold. Until all of the covenants and conditions in the Lease on Lessee’s part to be performed and observed are fully performed and observed, Guarantor: (a) shall have no right of subrogation against Lessee by reason of any payment or performance by Guarantor hereunder; and (b) subordinates any liability or indebtedness of Lessee now or hereafter held by Guarantor to the obligations of Lessee to Lessor under the Lease. This Guaranty shall apply to the Lease, any extension, renewal, modification or amendment thereof, to any assignment, subletting or other tenancy thereunder and to any holdover term following the Lease term granted under the Lease, or any extension or renewal thereof. Notwithstanding anything in this Guaranty to the contrary, in the event Lessee assigns the Lease or subleases the Premises in accordance with the provisions of the Lease to a third party which is not an entity controlling or controlled by or under common control with Lessee or Guarantor (a “Third Party Assignee”) then (a) the undersigned shall not be responsible for any incremental increase in Rent or other obligation under the Lease or for or during any extension of the Lease term resulting from an amendment to the Lease between Lessor and such Third Party Assignee which provides for an increase in Rent or other obligation due under the Lease or an extension of the Lease term or for any exercise of any option to extend the Lease term which may be exercised by said Third Party Assignee, unless Guarantor shall have consented in writing to such increase in Rent or other obligation or extension of Lease term; and (b) as a condition to the undersigned’s liabilities under this Guaranty, Lessor shall be required to deliver written notice of any defaults by Lessee or the Third Party Assignee to Guarantor and Guarantor shall have the right to cure same within the time period provided in the Lease. 2Guaranty In the event of any litigation between Guarantor and Lessor with respect to the subject matter hereof, the unsuccessful party in such litigation shall pay to the successful party all fees, costs and expenses thereof, including reasonable attorneys’ fees and expenses. If there is more than one (1) undersigned Guarantor, (a) the term “Guarantor”, as used herein, shall include all of the undersigned; (b) each provision of this Guaranty shall be binding on each one of the undersigned, who shall be jointly and severally liable hereunder; and (c) Lessor shall have the right to join one or all of them in any proceeding or to proceed against them in any order. Within fifteen (15) days after Lessor’s written request (which requests may not be made more than once per calendar year), Guarantor shall furnish Lessor with financial statements or other reasonable financial information reflecting Guarantor’s current financial condition, certified by Guarantor or its financial officer. If Guarantor is a publicly-traded corporation, delivery of Guarantor’s last published financial information shall be satisfactory for purposes of this Paragraph. This instrument constitutes the entire agreement between Lessor and Guarantor with respect to the subject matter hereof, superseding all prior oral and written agreements and understandings with respect thereto. It may not be changed, modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by Guarantor and Lessor. This Guaranty shall be governed by and construed in accordance with the laws of the State of IllinoisCalifornia. Every notice, demand or request (collectively “Notice”) required hereunder or by law to be given by either party to the other shall be in writing. Notices shall be given by personal service or by United States certified or registered mail, postage prepaid, return receipt requested, or by telegram, mailgram or same-day or overnight private courier, addressed to the party to be served at the address indicated below or such other address as the party to be served may from time to time designate in a Notice to the other party. Any action to declare or enforce any right or obligation under the Lease may be commenced by Lessor in the state courts Superior Court of the State of IllinoisLos Angeles, California. Guarantor hereby consents to the jurisdiction of such Court for such purposes. Any notice, complaint or legal process so delivered shall constitute adequate notice and service of process for all purposes and shall subject Guarantor to the jurisdiction of such Court for purposes of adjudicating any matter related to this Guaranty. Lessor and Guarantor hereby waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either Lessor against Guarantor or Guarantor against Lessor on any matter whatever arising out of, or in any way connected with, the Lease, or this Guaranty. 3Guaranty This Guaranty may be assigned in whole or part by Lessor upon written notice to Guarantor, but it may not be assigned by Guarantor without Lessor’s prior written consent, which may be withheld in Lessor’s sole and absolute discretion. The terms and provisions of this Guaranty shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and permitted assigns of the parties hereto.
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Samples: Lease (Zenlabs Holdings Inc)