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EXHIBIT 10.14A
LEASE GUARANTY
In order to induce XXXXXX /DESOTO PARTNERS, LLC, ("Landlord") to execute
a certain Lease Agreement dated as of November 15, 1999 (the "Lease") between
Landlord and XXXXXXXX-SONOMA RETAIL SERVICES, INC., a California corporation
("Tenant"), covering certain premises situated in the City of Olive Branch,
Mississippi described on Exhibit "A" hereto, the undersigned (hereinafter
referred to as "Guarantor") hereby guarantees unto Landlord the payment and
performance of (a) all of the Basic Rent, Additional Rent (as such terms are
defined in the Lease) and other sums or charges which may ever become due and
payable by Tenant under the Lease, including, without limitation, rent that
becomes due and payable by reason of the exercise of any power to accelerate
granted to Landlord under the Lease, (collectively, the "Rents"), and any
damages or other sums that become payable on account of any default by Tenant
under the Lease, and the Company Payments (as defined in the Lease) due Landlord
thereunder, and (b) all of the other obligations, liabilities and duties of
Tenant under the Lease [the Rents, Company Payments and other obligations,
liabilities and duties described in the foregoing clauses (a) and (b) being
hereinafter collectively referred to as the "Obligations"].
Upon the occurrence of an event of a default by Tenant in the payment or
performance of any of the Obligations, Guarantor shall on demand pay the amount
due to Landlord and perform all of the other Obligations of Tenant with respect
to which Tenant is then in default. For the purposes hereof, the term "Tenant"
shall include any assignee of Tenant and the term "Lease" shall include any
amendment of the Lease effected by Landlord and Tenant. Notwithstanding anything
contained herein to the contrary, Guarantor's obligations shall be limited to
those provided herein.
Landlord shall not be required, before invoking the benefits of this
guaranty, to institute suit against or exhaust its remedies with respect to
Tenant or any other person liable for the Obligations or to enforce its rights
with respect to any security which shall have ever been given to secure the
payment and performance of the Obligations; and the obligations of Guarantor
hereunder shall not be released or impaired in any way by any action for the
collection or enforcement of the Obligations, or any failure of Landlord to give
Guarantor any notice of any kind under any circumstances whatsoever with respect
to or in connection with the Obligations. Suit may be brought and maintained
against Guarantor without the joinder of Tenant or any other person, and in the
event that there is more than one (1) guarantor of the Obligations, Landlord may
(a) bring suit against all guarantors jointly and severally or against any one
or more of them, (b) compromise or settle with any one or more of such
guarantors for such consideration as Landlord may deem proper, and (c) release
one or more of the guarantors from liability without impairing the liability of
the guarantors not so released; and no action brought by Landlord against any
guarantor of the Obligations shall impair the right of Landlord to bring suit
against any remaining guarantor or guarantors, including Guarantor hereunder.
The obligations of Guarantor shall be irrevocable and unconditional,
irrespective of the genuineness, validity, regularity or enforceability of the
Lease or any security given for the Obligations or any other circumstances which
might otherwise constitute a legal or equitable discharge of a surety or
guarantor, and Guarantor waives the benefit of all principles or
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provisions of law, statutory or otherwise, which are or might be in conflict
with the terms of this guaranty, and agrees that the obligations of Guarantor
shall not be affected by any circumstances, whether or not referred to in this
guaranty, which might otherwise constitute a legal or equitable discharge of a
surety or a guarantor. Specifically, Guarantor waives the benefits of any rights
of sureties and guarantors under the laws of the State of Mississippi. Without
limiting the generality of the foregoing Guarantor agrees that Landlord may, in
its sole and absolute discretion, without notice to or consent by Guarantor, and
without in any way releasing or impairing any liability or obligation of
Guarantor hereunder (a) waive compliance by Tenant with any of its Obligations
or covenants under the Lease or waive any default thereunder, or grant any other
indulgence with respect to the Lease, (b) modify, amend or change any provision
of the Lease, (c) grant extensions or renewals of the Lease or the Obligations,
or effect any release, compromise or settlement in connection therewith,
including any release of the liability of Tenant or any guarantor or other
person liable on the Obligations or any part thereof, (d) transfer its interest
in the premises covered by the Lease or its rights under this guaranty
(including specifically the anticipated assignment of certain of Landlord's
rights under this guaranty and the Lease to the Mississippi Business Finance
Corporation as issuer ("Issuer") of its $42,500,000 Taxable Industrial
Development Revenue Bonds, Series 1999 (Xxxxxx/Desoto Partners, L.L.C. Project)
("Bonds") pursuant to an Assignment of Rents and Leases (the "Assignment"),
which will in turn be assigned by the Issuer to First Tennessee Bank National
Association as trustee ("Trustee") for the holders of the Bonds pursuant to a
Trust Indenture of even date herewith between Issuer and Trustee and the
conveyance and assignment by Landlord to Xxxxxx/Phase II Partners, L.L.C. of the
premises and of its rights under the Lease, (e) consent to the assignment by
Tenant of its rights under the Lease, and (f) deal in all respects with Tenant
and the Obligations as if this guaranty were not in effect. Guarantor further
waives (1) acceptance or notices of acceptance of this guaranty, (2) notices to
Guarantor of any kind in any circumstances whatsoever, including, without
limitation, notice of dishonor and, except as otherwise herein provided, notice
of any default by Tenant under the Lease and all waivers or indulgences granted
by Landlord to Tenant under the Lease, and (3) diligence, presentment and suit
on the part of Landlord in the enforcement of any of the Obligations.
This guaranty shall be enforceable despite any exculpation from
liability granted to Tenant under the Lease, with the same force and effect as
if no such exculpation from liability had been granted to Tenant.
Guarantor agrees to pay the reasonable attorneys' fees and all other
costs and expenses incurred by Landlord in order to enforce its rights under
this guaranty.
In the event any payment by Tenant to Landlord is held to constitute a
preference under the bankruptcy laws, or if for any other reason Landlord is
required to refund such payment or pay the amount thereof to any other party,
such payment by Tenant to Landlord shall not constitute a release of Guarantor
from any liability hereunder, but Guarantor agrees to pay such amount to
Landlord upon demand.
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Until the Obligations have been paid in full, Guarantor shall not have
any right of subrogation unless such right is expressly granted in writing by
Landlord.
Landlord shall apply all payments received by it from Tenant, Guarantor
or any other guarantor under any other instrument, or realized by it from any
security as follows: first, to payment of Basic Rent then due and payable;
second, to payment of Additional Rent then due and payable; third, to payment of
any damages or other sums then payable on account of any default by Tenant;
fourth, to payment of Company Payments then due and payable; and fifth, to
payments of any Obligations then due and payable.
All the obligations of Guarantor arising hereunder shall be binding on
its successors and assigns. The word "person" as used herein includes natural
persons and entities of all kinds.
This guaranty shall be construed in accordance with and governed by the
laws of the State of Mississippi.
EXCEPT TO THE EXTENT PROHIBITED BY LAW, THE GUARANTOR WAIVES TRIAL BY
JURY IN CONNECTION WITH ANY ACTION OR PROCEEDING OF ANY NATURE WHATSOEVER
ARISING UNDER, OUT OF OR IN CONNECTION WITH THIS GUARANTY, WHETHER ARISING UNDER
STATUTE (INCLUDING ANY FEDERAL OR STATE CONSTITUTION) OR UNDER THE LAW OF
CONTRACT, TORT OR OTHERWISE AND INCLUDING, WITHOUT LIMITATION, ANY CHALLENGE TO
THE LEGALITY, VALIDITY, BINDING EFFECT OR ENFORCEABILITY OF THIS PARAGRAPH. THE
GUARANTOR CONSENTS TO THE JURISDICTION OF THE MISSISSIPPI COURTS AND CONSENTS TO
SERVICE OF PROCESS BY REGISTERED OR CERTIFIED MAIL.
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This guaranty shall be binding upon Guarantor and its successors and
assigns, and shall inure to the benefit of Landlord and its successors and
assigns. Guarantor acknowledges and agrees that Landlord does not intend to
assign its rights to Company Payments pursuant to the Assignment, and that upon
enforcement of its rights under this guaranty by Trustee, sums due hereunder in
respect of Company Payments shall not be paid to Trustee. Landlord acknowledges
and agrees that notwithstanding anything to the contrary herein contained,
Guarantor may assert any and all defenses of the Tenant arising under the Lease
to the payment of Company Payments, and any and all rights of set-off,
recoupment and counterclaim of the Tenant arising under the Lease with respect
to Company Payments to Guarantor's obligations with respect to Company Payments
hereunder.
Executed this ____ day of ____________________, 1999.
XXXXXXXX-SONOMA, INC.
By: /s/ Xxxxx Xxxxx
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Title: VP Operation
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GUARANTOR
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