Exhibit 10.5
Form of Unconditional Guaranty of Payment and Performance
UNCONDITIONAL GUARANTY
OF PAYMENT AND PERFORMANCE
TO: CNL __________
1. FOR VALUABLE CONSIDERATION, the undersigned ("Guarantor")
unconditionally guarantees and promises to pay to CNL __________, a (State of
Registration) (Landlord Entity Type) ("Landlord"), all sums, including without
limitation Interim Rent, Annual Rent, Percentage Rent, taxes, insurance
premiums, impounds, late charges and interest, damages, costs, fees and all
other sums which may at any time be due to Landlord pursuant to the following
agreements (the "Documents"):
A. Lease Agreement of even date herewith between Landlord and
(TENANT NAME), a (State of Incorporation) (Tenant Entity Type)(the "Tenant").
2. Guarantor hereby further unconditionally guarantees the truth and
accuracy of all representations, warranties, and certifications of Tenant, the
satisfaction of all conditions by Xxxxxx and the full and timely performance of
all obligations to be performed by Tenant under or pursuant to the Documents.
3. The obligation of Guarantor hereunder is primary, joint and several
and independent of the obligation of any and every other guarantor, if any,
whether or not such action is brought against Tenant or any other guarantor and
whether or not Tenant or any other guarantor be joined in such action or
actions. With respect to these persons and the subject matter of any dispute
wherein Landlord may be attempting to enforce any of the obligations guaranteed
hereby against any other person, party or Guarantor, Guarantor jointly and
severally hereby irrevocably consents to the jurisdiction of (i) the state where
the real property which is the subject of the Lease Agreement referenced in
Paragraph 1.A hereof is located and (ii) any other jurisdiction where Tenant
engages in business.
4. Guarantor authorizes Landlord, without notice or demand and without
affecting their liability hereunder, from time to time, to: (a) renew,
compromise, extend, accelerate, reduce the amount of, change the time for
payment of or otherwise change the terms of the obligations guaranteed hereby;
(b) take and hold security for the payment of this Guaranty or the obligations
guaranteed, and exchange, enforce, waive and release any such security; (c)
apply such security and direct the order or manner of sale thereof as Landlord
in its discretion may determine; (d) release or substitute Tenant or any one or
more guarantor; and (e) assign this Guaranty in whole or in part.
5. Guarantor hereby waives the benefit of any defense against the
enforcement of this Guaranty against Guarantor or any defense which Tenant might
have against Landlord (except such defenses as, by law, cannot be expressly
waived), including without limitation: (a) any right to require Landlord to (i)
proceed against Tenant, (ii) proceed against or exhaust any security, (iii)
proceed against any other guarantor, or (iv) pursue any other remedy in
Landlord's power
whatsoever; (b) any defense arising by reason of any disability or other defense
of Tenant or by reason of the cessation from any cause whatsoever (other than
payment in full) of the liability of Tenant; and (c) all rights and/or
privileges Guarantor might otherwise have to require Landlord to pursue any
other remedy available to Landlord in any particular manner or order under the
legal or equitable doctrine or principle of marshalling and/or suretyship and
further agree that Landlord may proceed against any or all security in such
order and manner as Landlord in its sole discretion may determine.
6. Guarantor shall have no right of subrogation, and does hereby waive
any right to participate in any security now or hereafter held by Landlord.
Guarantor hereby waives all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, notice of
acceptance of this Guaranty and all other notices whatsoever.
7. Any indebtedness of Tenant now or hereafter held by any or all
Guarantors is hereby subordinated to the indebtedness of Tenant to Landlord. Any
such indebtedness of Tenant to Guarantor, if Landlord so requests, shall be
collected, enforced and received by Guarantor as trustee for Landlord and be
paid over to Landlord on account of the obligations guaranteed hereby, but
without reducing or affecting in any manner the liability of Guarantor under the
other provisions of this Guaranty.
8. It is not necessary for Landlord to inquire into the powers of
Tenant or its officers, directors, partners or agents acting or purporting to
act on its behalf, and Guarantor shall be liable for the obligations of Tenant
in accordance with their terms notwithstanding any lack of authorization or
defect in execution or delivery by Xxxxxx.
9. Guarantor agrees to pay all Landlord's reasonable attorneys' fees
and other costs and expenses which may be incurred by Landlord in the
enforcement of this Guaranty.
10. This Guaranty shall apply to the parties hereto and their
successors and assigns according to the context hereof and without regard to the
number or gender of words or expressions used herein.
11. Guarantor, jointly and severally, xxxxxx agrees to indemnify and
hold harmless Landlord from any loss, cause of action, claim, cost, expense or
fee (including but not limited to attorney's fees) suffered or occasioned by the
failure of Tenant to satisfy its obligations under the Documents or such other
documents contemplated thereby. The obligations of Guarantor under this section
shall be independent, primary, joint and several obligations of Guarantor and
any other guarantor. The agreement to indemnify Landlord contained in this
section shall be enforceable notwithstanding the invalidity or unenforceability
of the Documents or such other documents contemplated thereby or any of them or
the invalidity or unenforceability of any other section or sections contained
herein.
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IN WITNESS WHEREOF, the undersigned Xxxxxxxxx has executed this
Guaranty this ___ day of ____________, 1998.
Signed, sealed and delivered
in the presence of: "GUARANTOR"
_____________________, a _____________
corporation
------------------------- By:
---------------------------------
Name:
--------------------
Name:
---------------------------------
As Its:
--------------------------------
-------------------------
Name:
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[NOTARY ACKNOWLEDGMENT]
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