Exhibit 99.5
GUARANTY OF LEASE PAYMENTS
WHEREAS, XXXXXXXX ACQUISITION CORP., a Delaware corporation and wholly
owned subsidiary of XXXXXXXX, INC., a Delaware corporation (Xxxxxxxx, Inc. is
hereinafter referred to as the "Guarantor"), acquired all of the membership
interests (the "Interests") of Gekko, LLC, an Alabama limited liability company
(the "Lessee") from Gekko's members (the "Members").
WHEREAS, the Lessee has entered into that certain Xxxxxxx and Restated
Lease, dated July 6, 2004 (the "Lease") with 16 XXXXXXX, LLC, an Alabama limited
liability company, as "lessor" therein (the "Lessor"), with respect to the
property described on Exhibit "A" to the Lease (the "Premises");
WHEREAS, the Members have refused to sell their Interests unless the
Guarantor guaranties the Lease in the manner herein set forth; and
WHEREAS, Guarantor, as the Lessee's parent company, is receiving a
valuable benefit through the Lease.
NOW, THEREFORE, to induce the Members to sell their Interests to
Guarantor, together with other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Guarantor hereby agrees as
follows:
1. (a) The Guarantor unconditionally guaranties to the Lessor and any
successors to the Lessor's interest in the Premises the full and punctual
payment by the Lessee of all "Base Rent", Additional Rent", and other sums
payable by the Lessee pursuant to the terms of the Lease to include, but not be
limited to, all amounts related to taxes,
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insurance and repairs, as well as Xxxxxx's indemnification obligation and
accelerated rents upon default (collectively, "Rent").
(b) If, at any time, default shall be made by the Lessee in the
payment of Rent, the Guarantor will pay such sums in place and stead of the
Lessee.
(c) This is a guaranty of payment and not merely of collection. The
liability of the Guarantor under this Guaranty shall be direct and immediate and
not conditional or contingent upon the pursuit of any remedies against the
Lessee or any other person, nor against securities or liens available to the
Lessor, its successors, successors-in-title, endorsees, or assigns. Amounts due
Lessor hereunder shall be without set-off.
2. Any act of the Lessor, or the successors or assigns of the Lessor,
consisting of a waiver of any of the terms or conditions of the Lease, or the
giving of any consent to any manner or thing relating to the Lease, or the
granting of any indulgences or extensions of time to the Lessee, may be done
without releasing the obligations of the Guarantor hereunder.
3. The obligations of the Guarantor hereunder shall not be released by
Xxxxxx's receipt or release of security given for the Lessee's payment of Rent;
nor by any modification of the Lease.
4. The Guarantor hereby subordinates, to the fullest extent possible, any
and all rights, whether at law, in equity, by agreement or otherwise, to
subrogation, indemnity, reimbursement, contribution, or any other similar claim,
cause of action or remedy against Lessee that otherwise would arise out of the
Guarantor's performance of its obligations to the Lessor under this Guaranty, to
any claims of the Lessor. If any amount shall be paid to
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the Guarantor on account of such subrogation or other rights at any time the
Lessor is entitled to payments from the Lessee, such amount shall be held in
trust for the benefit of the Lessor and shall forthwith be paid to the Lessor to
be credited and applied to payment of the obligations guaranteed hereby, in
accordance with the terms hereof.
5. This Guaranty shall apply to the Lease, any extension or renewal
thereof and to any holdover term following the term thereby granted or any
extension or renewal thereof.
6. This instrument may not be changed, modified, discharged or terminated
orally or in any manner other than by an agreement in writing signed by the
Guarantor and the Lessor.
8. The parties agree that this Guaranty is governed by the laws of the
State of Alabama and that its enforcement shall be in the Circuit Court of
Xxxxxxx County, Alabama, the venue and jurisdiction of which the parties do
hereby consent to.
IN WITNESS WHEREOF, Xxxxxxxxx has duly executed this Guaranty of Lease
Payments as of this 6th day of July 2004
GUARANTOR:
XXXXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------------
Title: CEO
Attest:/s/ Xxxxxx Xxxxx
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Title: Corporate Secretary
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