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GUARANTY
Dated January ___, 1996
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In consideration of, and as an inducement for, the execution and
delivery by Landlord (as hereinafter defined) of the lease of even date herewith
and a letter agreement of even date herewith regarding storage (collectively,
the "Lease"), between The Soho Hotel Company, L.P. ("Landlord"), and Xxxxx
Xxxxxx, Inc. ("Tenant"), with respect to a portion of the ground floor, cellar
and subcellar (collectively, the "Premises") of the building located at 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, and for Ten ($10.00) Dollars and other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the undersigned (hereinafter referred to as "Guarantor") does
hereby, on behalf of itself and its successors and assigns, unconditionally and
absolutely guarantee to Landlord and its successors and assigns the full and
timely payment, performance and observance of, and compliance with, all of the
terms, covenants and conditions contained in the Lease on Tenant's part to
perform, observe or comply with, without requiring any notice (except as
otherwise expressly provided in Article 27 of the Lease) of non-payment,
non-performance, non-observance, or non-compliance, or proof, notice (except as
otherwise expressly provided in said Article 27), or demand whereby to charge
Guarantor therefor, all of which Guarantor hereby expressly waives, and
Guarantor hereby further expressly covenants and agrees that neither the
obligation nor the liability of Guarantor hereunder shall in any wise be
terminated or otherwise affected, modified or impaired by reason of Landlord's
assertion against Tenant of, or Landlord's failure to assert against Tenant, any
of the rights or remedies available to Landlord pursuant to the Lease or allowed
at law or in equity.
Guarantor's obligations and liabilities under this Guaranty shall
include, but not be limited to, the payment of all Fixed Rental and Additional
Rental (as such terms are defined in the Lease), and all foreseeable and
unforeseeable damages that may arise in foreseeable or unforeseeable consequence
of any non-payment, non-performance or non-observance of, or non-compliance
with, any of the terms, covenants or conditions described in the preceding
paragraph (including, without limitation, all attorneys' fee and disbursements
and all litigation costs and expenses incurred or payable by Landlord or for
which Landlord may be responsible or liable, or caused by any such default) to
which Landlord is entitled under the Lease. In addition, Guarantor hereby
covenants and agrees to pay within five (5) days after Landlord's demand
therefor, all reasonable attorneys fees and disbursements and all litigation
costs and expenses incurred or paid by Landlord in connection with the
enforcement of this Guaranty.
This Guaranty is an absolute and unconditional guaranty of payment and
performance (and not merely of collection). Guarantor acknowledges that this
Guaranty and Guarantor's obligations and liabilities under this Guaranty are and
shall at all times continue to be absolute and unconditional in all respects,
and shall at all times be valid and enforceable irrespective of any other
agreements or circumstances of any nature whatsoever which might otherwise
constitute a defense to this Guaranty and the obligations and liabilities of
Guarantor under this Guaranty or the obligations or liabilities of any other
person or entity (including, without limitation, Tenant) relating to this
Guaranty or the obligations or liabilities of Guarantor hereunder or otherwise
with respect to the Lease or to Tenant. Guarantor hereby absolutely,
unconditionally and irrevocably waives any and all rights it may have to assert
any defense, set-off, counterclaim or cross-claim of any nature whatsoever with
respect to this Guaranty or the obligations or liabilities of Guarantor under
this Guaranty or the obligations or liabilities of any other person or entity
(including, without limitation, Tenant) relating to this Guaranty or the
obligations or liabilities of Guarantor under this Guaranty or otherwise with
respect to the Lease, in any action or proceeding brought by the holder hereof
to enforce the obligations or liabilities of Guarantor under this Guaranty. This
Guaranty sets forth the entire agreement and understanding of Landlord and
Guarantor, and Guarantor acknowledges that no oral or other agreements,
understandings, representations or warranties exist with respect to this
Guaranty or with respect to the obligations or liabilities of Guarantor under
this Guaranty.
Guarantor hereby covenants and agrees to and with Landlord and its
successors and assigns, that Guarantor may be joined in any action by or against
Tenant in connection with the Lease, and that recovery may be had against
Guarantor in such action or in any independent action against Guarantor without
Landlord or its successors or assigns first pursuing or exhausting any remedy or
claim against Tenant or its heirs, executors, administrators, successors or
assigns or any other remedy or claim under any other security for, or guaranty
of, the obligations or liabilities of Tenant under the Lease. Guarantor also
agrees that, in any jurisdiction, it will be conclusively bound by the judgment
in any such action by or against Tenant (wherever brought) as if Guarantor were
a party to such action even though Guarantor is not joined as a party in such
action.
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This Guaranty shall be a continuing guaranty, and shall survive the
Expiration Date (as defined in the Lease) or the sooner termination of the Lease
to the extent the obligations and liabilities of Tenant under or with respect to
the Lease or the Premises survive the Expiration Date or sooner termination of
the Lease by the expressed provisions of the Lease, by operation of law, or
otherwise, and to the extent that such obligations and liabilities were not
observed, performed, complied with or satisfied prior to the Expiration Date or
sooner termination of the Lease. Guarantor further covenants and agrees that
this Guaranty shall not be affected or impaired by, and shall remain and
continue in full force and effect as to, any renewal, amendment, modification or
extension of the Lease and as to any assignment of Lease or any interest therein
or the subletting of all or portions of the Premises, and shall cover, apply to
and incorporate all of the terms, covenants and conditions of all such renewals,
amendments, modifications, extension, assignments and sublettings (without need
of any notice or consent of Guarantor thereto, except as expressly otherwise
provided in the succeeding sentence) regardless of who occupies the Premises or
whether or not any portion of the Premises is occupied. Notwithstanding the
foregoing, this Guaranty shall not cover any renewal, amendment, modification or
extension of the Lease entered into by a Tenant that is not a Named Tenant (as
hereinafter defined), to the extent such renewal, amendment, modification or
extension increases Tenant's obligations or liabilities under the Lease, unless
Guarantor has expressly consented to such renewal, amendment, modification or
extension in writing. However, the Guarantor's failure or refusal to so consent
shall not affect or impair this Guaranty with respect to the Lease and all
documents, agreements and instruments related thereto to which Guarantor has
consented or for which Guarantor's consent was not required, or to the extent
such renewals, amendments, modifications and extensions do not increase Tenant's
obligations and liabilities under the Lease. (For the purposes of the preceding
sentence, "Named Tenant" shall mean the Tenant named in the Lease (as of the
initial execution thereof) or a Tenant that is a Related Entity (as defined in
the Lease) of the Tenant so named in the Lease.) Additionally, Guarantor further
covenants and agrees that this Guaranty shall not be affected or impaired by,
and shall continue in full force and effect notwithstanding (i) the
enforceability of any provision of the Lease or any such renewal, amendment,
modification, extension thereof, or any assignment of the Lease or any interest
therein, or sublease of all or any portion of the Premises, (ii) any extension
of time that may be granted to Tenant or its successors or assigns, (iii) the
voluntary or involuntary liquidation, dissolution, sale or other disposition of
all or substantially all the assets, marshaling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit
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of creditors, reorganization, arrangement or readjustment of, or other
similar proceeding affecting the Tenant or any of its assets or the
disaffirmance, rejection or postponement in any such proceeding of any of
Tenant's obligations or undertakings set forth in the Lease, (iv) the merger or
consolidation of the Tenant with any corporation, or the sale, divesture or
other disposition of any or all of the interest of Guarantor in the Tenant or
any entity controlling, controlled by or under common control with Tenant, or
(v) any event or circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor, indemnitor or surety under the
laws of the State of New York or the federal government. For purposes hereof,
"control" shall mean the possession of the power to direct or cause the
direction of the management and policies of such corporation or other entity
whether through the ownership of voting securities, by contract or otherwise.
Guarantor warrants and represents that it has the legal right and
capacity to execute this Guaranty and that it owns one hundred (100%) percent of
the outstanding voting stock of Tenant.
In the event, and to the extent, that this Guaranty shall be held
ineffective or unenforceable by any court of competent jurisdiction, then
Guarantor shall be deemed to be a tenant under the Lease with the same force and
effect as if Guarantor was expressly named as a co-tenant therein with joint and
several liability.
All of Landlord's rights and remedies under the Lease and/or under this
Guaranty are intended to be distinct, separate and cumulative and no such right
or remedy therein or herein mentioned, whether exercised by Landlord or not, is
intended to be in exclusion or a waiver of any of the others. This Guaranty
cannot be modified, waived or terminated unless such modification, waiver or
termination is in writing, signed by Landlord.
Neither the obligations nor the liabilities of Guarantor hereunder shall
be released, reduced, diminished, offset or otherwise affected by the existence
of, or Landlord's receipt, application, use, retention or release of, any
security given for the performance, observance and compliance with any of the
terms, covenants or conditions required to be performed, observed or complied
with by Tenant under the Lease, and for the purposes of Guarantor's obligations
and liabilities under this Guaranty, Landlord shall be deemed not to be holding
any security under the Lease and not to have applied, used or retained any
security deposit. No failure or delay on the part of Landlord in exercising any
right, power or privilege under this Guaranty shall operate as a waiver of or
otherwise affect any such right, power or privilege, nor shall any single or
partial exercise
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thereof preclude any other or further exercise thereof or the exercise of
any other right, power or privilege.
No payment by Guarantor pursuant to any provision hereof shall entitle
Guarantor, by subrogation or otherwise, to the rights of Landlord to any payment
by Tenant or out of the property of Tenant, except after payment in full of all
sums owing by Tenant to Landlord under the Lease.
Guarantor agrees that it will, at any time and from time to time, but no
more than four (4) times during any twelve (12) month period, within ten (10)
days after Landlord's request therefor, execute, acknowledge and deliver to
Landlord a statement certifying (a) that this Guaranty is unmodified and in full
force and effect (or if there have been modifications, that this Guaranty is in
full force and effect as modified and stating such modifications) and (b)
whether or not there are any existing claims, counterclaims, set-offs or
defenses against the enforcement of any of the agreements, terms, covenants or
conditions of this Guaranty. Guarantor agrees that such certificate may be
relied on by anyone holding or proposing to acquire any interest in the Building
(as defined in the Lease) or the land on which the Building is located, from or
through Landlord or by any mortgagee or prospective mortgagee, or lessee or
prospective lessee, of the Building or said land or of any interest therein.
In the event that Guarantor is more than one party, the agreements,
covenants, representations, warranties, obligations and liabilities of said
parties shall be joint and several.
As a further inducement to Landlord to make and enter into the Lease,
Guarantor covenants and agrees that (i) in any action or proceeding brought in
respect of this Guaranty or the Lease, Guarantor hereby waives trial by jury,
(ii) the Supreme Court of the State of New York for the County of New York (or,
in a case involving diversity of citizenship, the United States District Court
for the Southern District of New York) shall have jurisdiction of any action or
proceeding and (iii) service of any summons and complaints or other process in
any such action or proceeding may be made by certified mail directed to
Guarantor at the address below set forth, personal service being hereby waived.
If service is made by certified mail, then service shall be deemed made upon
actual receipt or refusal to receive. This Guaranty shall be enforced and
construed in accordance with the laws of the State of New York and shall be
binding upon and inure to the benefit of Landlord and Guarantor and their
respective heirs, executors, administrators, legal representatives, successors
and assigns.
Guarantor represents and warrants to Landlord as follows:
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(a) Guarantor is not in material default under the terms or
conditions of any agreement to which it is a party or by which it is bound, such
as would materially and adversely affect its ability to carry out the terms,
covenants and conditions of this Guaranty.
(b) Guarantor has the full power, authority and legal right to
execute and deliver, and to perform and observe the provisions of, this
Guaranty, including the payment of all moneys hereunder, and any and all
financial information (oral or written) which Guarantor has supplied, or caused
to be supplied, to Landlord is complete, true and accurate, in all material
respects, as of the date supplied. This Guaranty constitutes the legal, valid
and binding obligation of Guarantors enforceable in accordance with its terms.
(c) to Guarantor's knowledge, Guarantor is not in violation of
any decree, ruling, judgment, order or injunction applicable to it, or any law,
ordinance, rule or regulation of whatever nature which taken alone or in the
aggregate, would materially and adversely affect its ability to carry out any of
the terms, covenants, and conditions of this Guaranty. There are no actions,
proceedings or investigations pending or, to Guarantor's knowledge, threatened
against or affecting Guarantor (or any basis therefor known to Guarantor) before
or by any court, arbitrator, administrative agency or other governmental
authority or entity, which, taken alone or in the aggregate, if adversely
decided, would materially and adversely affect its ability to carry out any of
the terms, covenants and conditions of this Guaranty.
(d) No authorization, approval, consent or permission
(governmental or otherwise) of any court, agency, commission or other authority
or entity is required for the due execution, delivery, performance or observance
by Guarantor of this Guaranty or for the payment of any sums hereunder.
Guarantors agree that if any such authorization, approval, consent, filing or
permission shall be required in the future in order to permit or effect
performance of the obligations of Guarantor under this Guaranty, Guarantor shall
promptly inform Landlord or any of its successors or assigns and shall obtain
such authorization, approval, consent, filing or permission.
(e) Neither the execution or delivery of this Guaranty, nor the
consummation of the transactions herein contemplated, nor the compliance with
the terms and provisions hereof, conflict or will conflict with, or result in a
breach of, any of the terms, conditions or provisions of any law, order, writ,
injunction or decree of any court or governmental authority, or of any agreement
or instrument to which Guarantor
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is a party or by which they are bound, or constitutes or will constitute a
default thereunder.
(f) Guarantor is not entitled to immunity from judicial
proceedings and agrees that, if Landlord or any of its successors or assigns
brings any suit, action or proceeding in New York or any other jurisdiction to
enforce any obligation or liability of Guarantor arising, directly or
indirectly, out of or relating to this Guaranty, no immunity from such suit,
action or proceeding will be claimed by or on behalf of Guarantor.
(g) Guarantor has read the Lease and is fully familiar with
its contents.
It is a condition of the granting, execution and delivery of the Lease
that Guarantor executes and delivers this Guaranty, and Guarantor deems the
granting, execution and delivery of the Lease to be in Guarantor's best
interests and Guarantor expects to derive substantial benefit therefrom.
If Landlord is obligated by any bankruptcy or other law to repay to
Tenant or Guarantors or to any trustee, receiver or other representative of any
of them, any amounts previously paid, then this Guaranty shall be reinstated in
the amount of such repayment. Landlord shall not be required to litigate or
otherwise dispute its obligations to make such repayments if it is in good faith
and on the advice of counsel believes that such obligation exists. However, if
Landlord fails to so litigate or otherwise dispute and desires this Guaranty to
be so reinstated, then it shall notify Guarantor of Landlord's intention not to
so litigate or otherwise dispute, reasonably in advance of the last day by which
an action may be commenced by Guarantor to so dispute such obligations, so that
Guarantor may (without any obligation to), at its sole cost and expense and at
no cost or expense to Landlord, litigate or otherwise dispute Landlord's
obligation to make such repayments.
If any provision of this Guaranty or the application thereof to any
person or circumstance shall to any extent be held void, unenforceable or
invalid, then the remainder of this Guaranty or the application of such
provision to persons or circumstances other than those as to which it is held
void, unenforceable or invalid shall not be affected thereby, and each provision
of this Guaranty shall be valid and enforced to the fullest extent permitted by
law.
All notices, demands, approvals, consents, requests and other
communications which under the terms of this Guaranty, or under any statute,
must or may be given or made by the parties hereto, must be in writing, and must
be made either (i) by depositing such notice in the registered or certified mail
of the
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United States of America, return receipt requested, or (ii) by delivering
such notice by a commercial courier, which courier provides for delivery with
receipt guaranteed, addressed to each party as follows:
If to Landlord: 000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxx Xxxxxx
With a copy to: Xxxxxx and Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Ivanhoe, Esq.
and to: Sonesta International Hotels
Corporation
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
If to Guarantor: 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
With a copy to: Goulston & Storrs
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxx Xxxxxxx, Esq./
J. Crew
All notices, demands, approvals, consents, requests and other
communications shall be deemed to have been delivered (i) if mailed as provided
for in this Section, on the date which is three (3) business days after mailing
or (ii) if sent by commercial courier, on the date which is one (1) business day
after dispatching. Either party may designate by notice in writing given in the
manner herein specified a new or other
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address to which such notice, demand, approval, consent, request or other
communication shall thereafter be so given or made.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date
first above written.
J. CREW GROUP, INC.
By:________________________________
Name:
Title:
Address:
THE PROVISIONS OF THIS GUARANTY
ARE HEREBY CONSENTED AND AGREED TO:
XXXXX XXXXXX, INC.
By:_______________________________
Name:
Title:
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STATE OF )
)ss.:
COUNTY OF )
On the _______ day of January, 1996, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he resides in ______________________________________; that he is
the ________________________________ of J. CREW GROUP, INC., the corporation
described in and which executed the above instrument as Guarantor; and that he
signed his name thereto by order of the board of directors of said corporation.
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Notary Public
STATE OF )
)ss.:
COUNTY OF )
On the _______ day of January, 1996, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he resides in ______________________________________; that he is
the ________________________________ of XXXXX XXXXXX, INC., the corporation
described in and which executed the above instrument as Tenant; and that he
signed his name thereto by order of the board of directors of said corporation.
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Notary Public
