Exhibit 10(o)(9)
GUARANTY OF OBLIGATIONS
OF TENANT PURSUANT TO LEASE
In consideration of the execution of SOUTH COAST PLAZA, a
California partnership ("Landlord"), of that certain lease dated
October 30, 1996 (the "Lease") between Landlord, as landlord, and
XXXXXXXX STORE III, INC., a Delaware corporation, as Tenant
("Tenant"), and as an inducement to Landlord to execute the Lease,
the undersigned hereby guarantee(s) to Landlord and to its
successors and assigns, the payment by Tenant when due of the rent
and all other sums provided for in the Lease and the due
performance by Tenant of all of the provisions of the Lease and any
and all modifications or extensions thereof. In the event of
Tenant's failure, or the failure of its successors or assigns, if
any, to pay said sums or to render any other performance required
of Tenant, when due, the undersigned will forthwith pay all amounts
that may be due and will forthwith perform all of the provisions of
said Lease to be performed by Xxxxxx and pay all damages that may
result from the non-performance thereof by Xxxxxx. The undersigned
hereby consent(s) to and waive(s) notice of any extensions of time
for performance which Landlord may grant to Tenant and to any
modifications or amendments of said Lease or extensions or renewals
of the term thereof to which Landlord and Tenant, or their
successors and assigns, may agree.
The undersigned waive(s) notice of acceptance of this Guaranty
and of any default in the payment of rent, additional rent or any
other amounts contained or reserved in said Lease,
and notice of any breach or non-performance of any of the
covenants, conditions or agreement contained in said Lease.
The undersigned further agree(s) that the liability under this
Guaranty of the undersigned shall be primary, and that in any right
of action which may accrue to Landlord, its successors or assigns,
under said Lease or this Guaranty, Landlord and its successors or
assigns, at their option may proceed against the undersigned
without having taken or commenced any action or obtained any
judgment against Tenant and without applying any security deposit
or other property of Tenant or any other person held as collateral
security for the performance of the obligations of Tenant under the
Lease or otherwise to the discharge of the obligations of Tenant
under the Lease. The undersigned waive(s) any right to require
Landlord to pursue any remedy in Landlord's power against Xxxxxx
and waive(s) as defenses to the obligations hereunder the pleading
or defense of any statute of limitations. Any partial payment,
performance or other circumstance which operates to toll any
statute of limitations as to Tenant shall operate to toll the
statute of limitations as to the undersigned under this Guaranty.
The undersigned agree(s) that in the event Tenant shall become
insolvent or shall be adjudicated a bankrupt, or shall file a
petition for reorganization, arrangement or similar relief under
any present or future provision of the Federal Bankruptcy Code, or
any other act for the relief of debtors or any similar acts or law,
or if such a petition filed by creditors of Tenant
shall be approved by a Court, or if Tenant shall seek a judicial
readjustment of the rights of its creditors under any present or
future federal or state law or if a receiver of all or part of
Tenant's property and assets 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 thereunder shall be
modified, the undersigned shall immediately (a) pay to Landlord, or
its successors or assigns, an amount equal to all unpaid rent and
other amounts accrued under the Lease to the date of such
termination, rejection or modification, plus (b), at the option of
Landlord, its successors and assigns, either (I) pay to Landlord,
or its successors or assigns, an amount equal to the then cash
value of the rent which would have been payable under the Lease for
the unexpired portion of the term of the lease if it had not been
terminated, rejected or modified, less the then cash rental value
of the premises which are the subject of the Lease for such
unexpired portion of the term of the Lease, taking into
consideration the Lease as modified, if such is the case, or (ii)
if the Lease is terminated or rejected, execute and deliver to
Landlord, or its successors or assigns, a new lease with the
undersigned as tenant for the balance of the term and upon the same
terms and conditions as the terminated or rejected Lease, and will
pay Landlord interest on the amounts which become payable and are
designated in (a) and (b)(I)above at the maximum per annum rate
then chargeable by Landlord under the then applicable usury law
from the date of such termination, rejection or modification to the
date of payment, including any period of time after any breach by
the undersigned hereunder.
Neither the obligation of the undersigned to make payment in
accordance with the terms of the Guaranty nor any remedy for the
enforcement thereof shall be impaired, modified, changed,
released or limited in any manner whatsoever by any impairment,
modification, change, release or limitation of the liability of
Tenant, or its estate in bankruptcy, or otherwise, or of any remedy
for the enforcement thereof, resulting from the operation of any
present or future provision of the Federal Bankruptcy Code or any
other statute, or from the decision of any Court.
Landlord may, without notice to or demand upon the undersigned
and without affecting the obligation of the undersigned hereunder,
take and hold security for the obligations under this Guaranty and
the Lease, add to, exchange or release any such security, apply or
realize upon such security as Landlord determines and release, add
or substitute any one or more guarantors should more than one
person or entity be or become liable on this Guaranty. Landlord
may exercise any right or remedy it may have against Tenant or any
security held by Landlord without impairing the obligation of the
undersigned on this Guaranty, and the undersigned waive(s) any
defense arising
out of the absence, impairment or loss of any right of
reimbursement, subrogation or other remedy of the undersigned
against Tenant or any such security, whether resulting from any
election by Landlord or otherwise. Landlord may apply all payments
received by Landlord from Tenant or any guarantor in such manner
and in such priority as Landlord determines.
The undersigned assume(s) the reasonability to keep informed
of the financial condition of Tenant and all other circumstances
bearing upon the risk of non-payment or nonperformance by Tenant
under the Lease, and agree(s) that absent a request for such
information by the undersigned, Landlord shall have no duty to
advise the undersigned of information known to Landlord regarding
such condition or circumstances. If the undersigned is a natural
person, liability of the undersigned under this Guaranty shall not
be terminated by the death of the undersigned, and all obligations
of Tenant existing prior to the death of the undersigned or
thereafter accruing shall survive and be payable by the surviving
undersigned, if any, or by the estate of the undersigned. This
Guaranty shall bind the undersigned, and its or their heirs,
representatives, successors and assigns. If this Guaranty is
executed by more than one person or entity, the liability of the
undersigned hereunder shall be joint and several.
Should any action at law or in equity be filed or instituted
to construe the terms of, for the breach of, to enforce the terms
of, or to interpret or declare the rights of the parties under this
Guaranty, the successful party in such action shall, in addition to
all other relief afforded to the successful party, recover its
costs and expenses (whether or not taxable) and reasonable
attorney's fees incurred in such action.
The undersigned agree(s) that this Guaranty is made and
executed under and shall be construed in accordance with the laws
of the State of California, that the Courts of the State of
California shall have jurisdiction of any action brought upon this
Guaranty and that venue may be placed in the Superior Court of the
County of Orange with service of process in accordance with the
California Code of Civil Procedure as then in effect. In addition,
the arbitration provision contained in the Lease is hereby
incorporated into and made a part of the Guaranty by this
reference.
Landlord may, with or without notice to the undersigned,
assign this Guaranty in whole or in part. The undersigned
expressly waive(s) the provisions of Section 2845 of the Civil Code
of California.
All notices required or permitted pursuant to this Guaranty
shall be in writing and shall be personally served or sent by
registered or certified mail, return receipt requested to Landlord
at its address pursuant to the Lease or to the undersigned at the
address set forth below the signature of the undersigned. Any
notice personally served shall be effective upon delivery. Any
notice sent by registered or certified mail, properly addressed,
postage prepaid and deposited in the United
States mail in the State of California shall be effective on the
date of delivery, refusal or non-delivery indicated on the return
receipt. Either Landlord or the undersigned may change its
address for notices by written notice to the other(s) pursuant to
this paragraph.
EXECUTED this 15th day of November, 1996.
XXXXXXXX, INC., a Delaware corporation
By:_/s/ Xxxxxx X.Xxxxxxx___________________
Title:_________CEO_________________
By:_____________________________________
Title:____________________________________
Address for Notices:
______________________________________
/TEXT>
