GUARANTY AGREEMENT
XXXXX X. XXXXX, an individual, having his primary residence address at 0
Xxxxxxx Xxxx Xxxxxxx, Xxxxx, Xxx Xxxxxx, (hereinafter called "Guarantor"), has
requested 7 XXXXXX FARM ASSOCIATES, a New Jersey limited partnership, having an
address c/o Bellemead Management Co., Inc., 280 Corporate Center, 0 Xxxxxx Xxxx
Xxxx, :Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter called "Landlord") to consent to
a certain assignment and assumption agreement dated as of June 12, 1992
("Assignment and Assumption Agreement") between (i) Guarantor and Xxxxxxx
Xxxxxxxx, collectively as assignor, and (ii) M&S Corporate Holdings, Inc., as
assignee, which transfers that certain lease dated as of July 1, 1992 between
(a) Landlord and (b) XXXXXXX XXXXXXXX and Guarantor (said lease as the same may
have been or may hereafter be amended is hereinafter called the "Lease"). M&S
Corporate Holdings, Inc. and any successor thereto is hereinafter referred to as
"Tenant". In order to induce Landlord to consent to the Assignment and
Assumption Agreement, Guarantor, irrespective of any circumstances which may
constitute a legal or equitable defense or discharge of a guarantor or surety,
hereby guarantees, unconditionally and absolutely, to Landlord, its successors
and assigns (without requiring any notice of nonpayment, nonkeeping,
nonperformance or nonobservance or proof of notice or demand whereby to charge
Guarantor, all of which Guarantor hereby expressly waives), the full and
faithful, keeping, performance and observance, of all the covenants, agreements,
terms, provisions and conditions of the Lease provided to be kept, performed and
observed by Tenant (expressly including, without being limited to, the payment
as and when due of Minimum Rent, Adjusted Minimum Rent, additional rent, charges
and damages payable by Tenant under the Lease) and the payment of any and all
other damages for which Tenant shall be liable by reason of any act or omission
contrary to any of said covenants, agreements, terms, provisions or conditions.
To further induce Landlord to consent to the Assignment and Assumption
Agreement and in consideration of such consent, Guarantor represents and
warrants that:
(a) This Guaranty constitutes Guarantor's valid and legally binding
agreement enforceable in accordance with its terms.
(b) The execution, delivery and performance by Guarantor of this Guaranty
does not contravene any law, governmental rule, regulation or order applicable
to Guarantor, and does not and will not contravene any provision of, or
constitute a default under, any indenture, mortgage, contract or other
instrument to which Guarantor is a party or otherwise binding upon Guarantor.
(c) No consent or approval of, giving notice to, registration with or
taking of any other action with respect of, any governmental authority or agency
is required with respect to the execution, delivery and performance by Guarantor
of this Guaranty.
(d) There are no actions, suits, proceedings or claims pending or, to the
best of Guarantor's knowledge, threatened against or affecting Guarantor in any
court or before any governmental commission, board, authority, or otherwise, if
adversely determined, will adversely affect the ability of Guarantor to perform
its obligations under this Guaranty.
To further induce Landlord to consent to the Assignment and Assumption
Agreement and in consideration of such consent, Guarantor hereby expressly
covenants and acknowledges as follows:
(1) The obligations hereunder of Guarantor shall not be terminated or
affected in any way or manner whatsoever by reason of Landlord's resort, or
Landlord's omission to resort, to any summary or other proceedings, actions or
remedies for the enforcement of any of Landlord's rights under the Lease or with
respect to the premises thereby demised or by reason of any extensions of time
or indulgences granted by Landlord, or by reason of the assignment or surrender
of all or any part of the Lease or the term and estate thereby granted or all or
any part of the premises demised thereby except to the extent that Tenant is
released in writing by Landlord from any obligation in connection with any such
assignment or surrender. The liability of Guarantor is coextensive with that of
Tenant and also joint and several, and action or suit may be brought against
Guarantor and carried to final judgment and/or completion and recovery had,
either with or without making Tenant a party thereto. Insofar as the payment by
Tenant of any sums of money to Landlord is involved, this Guaranty is guaranty
of payment and not of collection and shall remain in full force and effect until
payment in full to Landlord of all sums
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payable under the Lease. Guarantor waives any right to require that any action
be brought against Tenant or any other guarantor or to require that resort be
had to any security or to any other credit in favor of Tenant.
(2) If, pursuant to law or to any option granted by the Lease, the
Lease shall be renewed, or its term extended, for any period beyond the date
specified in the Lease for the expiration of said term, or if the Tenant holds
over beyond the term of the Lease, or if pursuant to any such option, additional
space shall be included in, or substituted for all or any part of, the premises
demised by the Lease, or if the Lease be modified by agreement between Landlord
and Tenant in any other similar or dissimilar respect, the obligations hereunder
of Guarantor shall extend and apply with respect to the full and faithful
keeping, performance and observance of all of the covenants, agreements, terms,
provisions and conditions which under such renewal of the Lease or extension of
its term and/or with respect to any such additional space, or which under any
supplemental indenture or new lease or modification agreement, entered into for
the purpose of expressing or confirming any such renewal, extension, inclusion,
substitution or modification, are to be kept, performed and observed by Tenant
(expressly including, without being limited to, the payment as and when due of
Minimum Rent, Adjusted Minimum Rent, additional rent, charges and damages
provided for thereunder) and the payment of any and all other damages for which
Tenant shall be liable by reason of any act or omission contrary to any of said
covenants, agreements, terms, provisions or conditions.
(3) Neither the giving nor the withholding by Landlord of any consent
or approval provided for in the Lease shall affect in any way the obligations
hereunder of Guarantor.
(4) Guarantor expressly agrees (without in any way limiting its
liability under any other provision of this Guaranty) that Guarantor shall, at
the request of Landlord, enter into a new lease with Landlord upon the same
terms and conditions as contained :in the Lease immediately prior to its
termination for a term commencing on the termination date of the Lease and
ending on the expiration date of the Lease if (a) the Lease shall be terminated
due to a default by Tenant thereunder, or (b) in any proceeding under the
Bankruptcy Code of the United States, as amended from time to time, or any
proceeding under any other similar present or future federal or state law, or as
a result of the decision of any court interpreting any of the same, the Lease
shall be terminated or rejected or the obligations of the Tenant thereunder or
any rights or remedies Landlord may have against the Tenant shall be limited,
impaired, stayed, changed, released or modified on account of the same. Neither
Guarantor, s obligation to make payment in accordance with the terms of this
Guaranty nor any remedy for the enforcement thereof shall be impaired, modified,
changed, stayed, released or limited in any manner whatsoever by any impairment,
modification, change, release, limitation or stay of the liability of Tenant or
its estate in bankruptcy or any remedy for the enforcement thereof, resulting
from the operation of any present or future provision of the Bankruptcy Code of
the United States or other statute or from the decision of any court
interpreting any of the same, and Guarantor shall be obligated under this
Guaranty as if no such impairment, stay, modification, change, release or
limitation had occurred.
(5) Until all of Tenant's obligations under the Lease are fully
performed, Guarantor (a)waives any right of subrogation against Tenant by reason
of any payment or acts of performance. by Guarantor in compliance with the
obligations of Guarantor under this Guaranty; (b)waives any other right which
Guarantor may have against Tenant by reason of any one or more payments or acts
in compliance with the obligations of Guarantor under this Guaranty; and
(c)subordinates any liability or indebtedness of Tenant held by Guarantor to the
obligations of Tenant to Landlord under the Lease.
(6) This Guaranty, and all of the terms hereof, shall be binding on
Guarantor and the successors, assigns, and legal representatives of Guarantor as
well as on Landlord and the successors, assigns and legal representatives of
Landlord. This Guaranty shall include any liability of Tenant which shall accrue
under the Lease for any period preceding as well as any period following the
term of the Lease.
(7) Guarantor hereby waives the right to trial by jury in any action
or proceeding that may hereafter be instituted by Landlord against Guarantor in
respect of this Guaranty. Guarantor waives the benefit of any statute of
limitations affecting Guarantor's liability under this Guaranty.
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(8) The Lease and this Guaranty shall be governed by, and interpreted
under the laws of, and enforced in the courts of New Jersey.
(9) Guarantor irrevocably appoints Tenant as its agent for service of
process related to this Guaranty. Guarantor hereby irrevocably submits itself to
the jurisdiction of the courts of the State of New Jersey and to the
jurisdiction of the United States District Court for the District of New Jersey
for the purposes of any suit, action or other proceeding brought by Landlord
arising out of or based upon this Guaranty or the Lease. Guarantor hereby waives
and agrees not to assert, by way of motion, as a defense, or otherwise, in any
such suit, action or proceeding, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Guaranty and/or the Lease may not be
enforced in or by such court.
(10) Guarantor agrees at any time and from time to time, upon not less
than ten (10) days' prior written request, that Guarantor shall execute,
acknowledge and deliver to Landlord, or its designee, a statement in writing
certifying that this Guaranty is unmodified and is in full force and effect (or
if there have been modifications, the specifics thereof and that the Guaranty is
in full force and effect as modified). It is intended hereby that any such
statement delivered pursuant to this Paragraph may be relied upon by a
prospective purchaser of the Landlord's interest or a mortgagee of Landlord's
interest, or any assignee of any mortgage affecting Landlord's interest.
Guarantor's failure to timely deliver such statement shall be conclusive upon
Guarantor that this Guaranty is in full force and effect, without modification
except as may be represented by Landlord.
(11) Guarantor will pay to Landlord all Landlord's expenses,
including, but not limited to, attorney's fees, in enforcing this Guaranty.
Dated, June 12, 1992 GUARANTOR:
WITNESSED BY: XXXXX X. XXXXX
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
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