LEASE GUARANTY
Maximum Liability $200,000
In consideration of the sum of One Dollar ($1.00) and other good and
valuable consideration paid by API RED LION SHOPING CENTER ASSOCIATES (the
"Partnership") to the undersigned, the receipt and sufficiency of which are
hereby acknowledged, the undersigned, SILVER CIRCLE MANAGEMENT CORP.
("Guarantor"), hereby guarantees, absolutely and unconditionally, to the
Partnership, the full and prompt payment of monthly minimum rental payable by
Tenant under that certain Shopping Center Lease Agreement between the
Partnership, as landlord, and The Sports Authority, Inc. ("Tenant"), as tenant,
dated February 15, 1990, as amended by Addendum dated as of February 15, 1990
(collectively, the "Lease"), and Guarantor hereby covenants and agrees to and
with the Partnership that if default shall at any time be made by Tenant in the
payment of monthly minimum rental during the term of the Lease (or, with respect
to payments after August 15, 2005, until August 15, 2010, if Tenant does not
exercise its option to extend the original term of the Lease), Guarantor shall
and will forthwith pay such monthly minimum rental to the Partnership. For
purposes of this Guaranty, the monthly minimum rental is $43,825 until August
15, 2005 and thereafter $47,477.08 until August 15, 2010.
This Guaranty shall be enforceable against Guarantor without the
necessity of any notice of non-payment, non-performance or non-observance or 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. Guarantor hereby expressly agrees that the validity of the Guaranty and
the obligations of Guarantor hereunder shall in no way be terminated, affected,
diminished or impaired by reason of (a) assertion or the failure to assert by
the Partnership against Tenant of any of the rights or remedies reserved to the
Partnership pursuant to the terms, covenants and conditions of the Lease, or (b)
any non-liability of Tenant under the Lease, whether by insolvency, discharge in
bankruptcy, or any other defect or defense which may now or hereafter exist in
favor of Tenant.
1
This Guaranty shall be a continuing guaranty, and the liability of
Guarantor hereunder shall in no way be affected, modified or diminished by
reason of (a) any assignment, renewal, modification, amendment or extension of
Lease, or (b) any modification or waiver of or change in any of the terms,
covenants and conditions of the Lease by the Partnership and Tenant, or (c) any
extension of time that may be granted by the Partnership to Tenant, (d) any
consent, release indulgence or other action, inaction or omission under or in
respect of the Lease, or (e) any dealings or transactions or matter or thing
occurring between the Partnership and Tenant, or (f) any bankruptcy, insolvency,
reorganization, liquidation, arrangement, assignment for the benefit of
creditors, receivership, trusteeship or similar proceeding affecting Tenant,
whether or not notice thereof is given to Guarantor.
No delay on the part of the Partnership in exercising any right, power
or privilege under this Guaranty or failure to exercise the same shall operate
as a waiver of or otherwise affect any such right, power or privilege, nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
No waiver or modification of any provision of this Guaranty nor any
termination of the Guaranty shall be effective unless in writing, signed by the
Partnership; nor shall any such waiver be applicable except in the specific
instance for which given.
The Partnership and Guarantor covenant and agree that in any action or
proceeding brought on, under or by virtue of this Guaranty, the Partnership and
Guarantor shall and do hereby waive trial by jury. Without regard to principles
of conflicts of laws, the validity, interpretation, performance and enforcement
of this Guaranty shall be governed by and construed in accordance with the
internal laws of the State of New York. All parties hereto agree to submit all
disputes or enforcement actions hereunder to a court of competent jurisdiction
in the State of New York.
2
Any provision herein to the contrary notwithstanding, this Guaranty
shall expire and be of no further effect on the earlier to occur of (a) the
exercise by Tenant of its option to renew the original term of the Lease, (b)
re-leasing of the Premises, as defined in the Lease, to one or more tenant(s)
reasonably approved by the Partnership, based on the credit-worthiness of such
tenant(s) and their proposed use of such space, or (c) five (5) years from the
earlier to occur of (1) the date of any default by the Tenant in the payment of
monthly minimum rental or (2) expiration of the original term of the Lease.
In no event shall the aggregate liability of the Guarantor hereunder
exceed $200,000. In no event shall the Guarantor be required to make any payment
hereunder earlier than the scheduled date for such corresponding guaranteed
payment under the Lease.
IN WITNESS WHEREOF, the undersigned has duly executed the Guaranty as
of this 31st day of May, 2002.
WITNESS: GUARANTOR:
SILVER CIRCLE MANAGEMENT CORP.
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
Title: President
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