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EXHIBIT 10.23
GUARANTY OF LEASE OBLIGATIONS
THIS GUARANTY OF LEASE OBLIGATIONS (this "Guaranty") is made effective as
of the 1st day of June, 1998, by Hallmark Entertainment, Inc., a
Delaware corporation ("Guarantor") for the benefit of High Pointe I Development
Group LLC, a Colorado limited liability company ("Landlord").
RECITALS
A. Guarantor is the majority shareholder of Hallmark Entertainment Network,
Inc., a Delaware corporation ("Tenant").
B. Tenant desires to enter into a lease with Landlord for certain Lease
Premises more particularly described in that certain Lease between Tenant and
Landlord of even date pertaining to the Building located at 0000 Xxxxx Xxxxxxx'x
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx which is a part of the Project consisting of
the land, building and parking structure and parking areas at such location
known as High Pointe at Greenwood I (the "Lease").
C. In order to induce Landlord to enter into the Lease with Tenant, which
Landlord is unwilling to do without the further assurance that Guarantor shall
be primarily liable for the performance of each and every one of the Obligations
of Tenant under the Lease, Guarantor has agreed to guaranty such obligations of
Tenant to Landlord.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, the premises
contained herein and in the Lease, and for other good and valuable
consideration, including, without limitation, the direct interest and advantage
of Guarantor in the benefits to be received by Tenant under the Lease,
Guarantor hereby covenants and agrees with Landlord for the benefit of Landlord
as follows:
1. GUARANTY. Subject to the terms and provisions hereof, Guarantor hereby
absolutely, irrevocably and unconditionally guarantees to Landlord full and
timely performance of all the covenants, agreements and obligations to be
performed by Tenant under the Lease including, but not limited to, Tenant's
obligation to pay the Rent payable under the Lease (the "Obligations").
2. TERM. The term of this Guaranty shall commence on the date hereof and
shall continue until such time as has occurred the complete and final
performance of the Obligations.
3. SEPARATE OBLIGATIONS. The Obligations of Guarantor under this Guaranty
are independent of the obligations of Tenant, and a separate action or actions
may be brought and prosecuted against Guarantor whether or not any action is
brought against Tenant or Tenant is joined in any such action or actions. Any
part payment or performance by Tenant or other circumstance which operates to
toll any statute of limitations as to Tenant shall operate to toll the statute
of limitations as to Guarantor. At the option of Landlord, Guarantor may be
joined in any action or proceeding commenced by Landlord against Tenant in
connection with or based upon the Lease or any security therefor. Recovery may
be had against Guarantor in such action or proceeding without any requirement
that Landlord first assert, prosecute or exhaust any remedy or claim against
Tenant. Without limiting the foregoing, Guarantor acknowledges that repeated and
successive demands may be made and payments or performance made hereunder in
response to such demands as and when, from time to time, Tenant may default in
performance under the Lease. Notwithstanding any such payments or performance
hereunder, this Guaranty shall remain in full force and effect and shall apply
to any and all subsequent defaults by Tenant in performance under the Lease.
4. RIGHTS AND REMEDIES. Landlord may, at its election, exercise any right
or remedy it may have against Tenant or any security now or hereafter held by
Landlord, without affecting or impairing in any way the liability of Guarantor
hereunder, except to extent the Obligations may thereby be paid or satisfied.
Guarantor waives any defense arising out of the
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absence, impairment or loss of any right of reimbursement or subrogation or
other right or remedy of Guarantor against Tenant or any security, whether
resulting from any election by Landlord or otherwise. Guarantor waives any
defense arising by reason of any disability of Tenant or by reason of the
insolvency or bankruptcy of Tenant as more fully described in paragraph 5 below.
Guarantor waives any set-off, defense or counterclaim which Tenant or Guarantor
may have or claim to have against Landlord, with the exception of those
set-offs, defenses or counterclaims which Tenant may have under the Lease.
Until all Obligations have been paid and performed in full, Guarantor shall not
have any right of subrogation and Guarantor waives any right to enforce any
remedy which Landlord now has or may hereafter have against Tenant. Guarantor
waives all rights and any other benefit of or right to participate in any
security now or hereafter held by Landlord. Guarantor waives all presentment,
notices of nonperformance, protests, notices of protest, notices of dishonor,
notices of default, notices of acceptance of this Guaranty and diligence.
5. INSOLVENCY. In the event that Tenant becomes insolvent or is adjudicated
bankrupt or files a petition for reorganization, arrangement, composition or
similar relief under any present or future provision of the Federal Bankruptcy
Code, or if such petition is filed against Tenant, and in any such proceeding
any or all of the Obligations are terminated, rejected, abrogated or modified,
Guarantor agrees that Guarantor's liability under this Guaranty shall not
thereby be modified or diminished, and such liability shall continue in full
force and effect as if no such action or proceeding had occurred. This Guaranty
shall continue to be effective or be reinstated, as the case may be, if any
payment or performance by Tenant or Guarantor must be returned by Landlord upon
the insolvency, bankruptcy or reorganization of Tenant or any Guarantor, or
otherwise, as though such payment had not been made.
6. RENEWAL AND EXTENSION. Guarantor authorizes Landlord, without notice to,
demand of, or consent from Guarantor, and without affecting the liability of
Guarantor to Landlord under this Guaranty, from time to time to amend or modify
any provision of the Lease or extend or renew the term thereof or otherwise
change the provisions of the Lease to take and hold security for the
Obligations and exchange, enforce, waive, surrender, modify, change, renew,
continue, compromise or release in whole or in part any such security to apply
such security and direct the order or manner of sale thereof as Landlord in its
sole discretion may determine, to release or substitute, in whole or in part,
Tenant or Guarantor, to consent to any assignment by Tenant and to settle or
compromise any of the Obligations, shall be and remain bound under this Guaranty
notwithstanding Landlord's taking any of the foregoing actions.
7. DUTY TO KEEP INFORMED. Guarantor assumes the responsibility for being
and keeping itself informed of the financial condition of Tenant and of all
other circumstances bearing upon the risk of Tenant's nonperformance under the
Lease which diligent inquiry would reveal and agrees that Landlord has no duty
to advise the Guarantor of such information known to Landlord regarding such
conditions or circumstances.
8. ASSIGNMENT. Guarantor shall not assign its rights or delegate its
obligations or any part of either thereof hereunder voluntarily or by operation
of law without in each case obtaining Landlord's prior written consent, and any
purported assignment or delegation without such consent shall be null and void.
Consent by Landlord to any such assignment or delegation shall not relieve
Guarantor or any of the obligations or liabilities hereunder unless the consent
so states. No such consent shall constitute consent to any other or subsequent
such assignment or delegation. Landlord may assign or delegate all or any part
of its rights and duties hereunder, without notice to any Guarantor, upon
assignment by Landlord of its rights under the Lease, and any such transferee of
Landlord shall have the same rights as Landlord under the terms of this Guaranty
as if such transferee were named herein in addition to or in the place of
Landlord. This Guaranty shall be binding against the undersigned and each and
all of their legal representatives, successors and assigns.
9. ATTORNEYS' FEES. Guarantor agrees to pay all attorney's fees, costs, and
expenses (including both prejudgment and post judgment) which may be incurred
by Landlord in the enforcement of this Guaranty.
10. ENFORCEABILITY. If any provision of this Guaranty is held to be invalid
or unenforceable, the validity or enforceability of the other provisions hereof
shall not be affected.
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11. GOVERNING LAW. This Guaranty shall be governed by and construed in
accordance with the laws of the State of Colorado excluding any choice of law
rules which would direct the application of the laws of another jurisdiction.
12. NOTICES. Any notices or other communication shall be in writing and
shall be deemed to have been duly given or made (a) upon delivery if hand
delivered; (b) one (1) day after delivery to any overnight courier service, fee
paid; or (c) three (3) days after deposit with the United States Postal Service
as registered or certified mail, postage prepaid, return receipt requested and
in each case addressed as follows:
Landlord: High Pointe I Development Group LLC
c/o Lankford & Associates, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxxx
Guarantor (duplicate Hallmark Entertainment, Inc.
originals to): 1325 Avenue of the Americas, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000,
Attn: Chief Financial Officer
and
Hallmark Entertainment, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Corporate Real Estate Director
with a copy to: Hallmark Entertainment Network, Inc.
Suite 400
0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
13. FINANCIAL STATEMENTS. Guarantor acknowledges that prior to its
execution of this Guaranty, it has delivered to Landlord current financial
statements of Guarantor dated as of December 31, 1997, as audited by Xxxxxx
Xxxxxxxx LLP and set forth in its Report dated January 17, 1998, and Guarantor
hereby represents and warrants that such financial statements are true and
correct in all material respects, and that there are no events or circumstances
that have occurred subsequent to the date of such financial statements which
would have a material adverse effect on the financial condition of Guarantor.
14. HEADINGS. The headings hereof are for convenience only and are not
intended to affect the meaning or interpretation of this Guaranty.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty the 1st day of
June, 1998, to be effective as of the date first above written.
HALLMARK ENTERTAINMENT, INC., a
Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
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Name:
Its: Vice President
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