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EXHIBIT 10.086
GUARANTY
THIS GUARANTY, made as of the ____ day of ____________, 1999, by and
between Allergy Xxxxxxxxxx.xxx, Inc. (herein called "Guarantor"), and Xxxxx
Xxxxxx Xxxxxxxx and COLOGNE INVESTORS, LIMITED (herein called "GCIL");
W I T N E S S E T H: That
WHEREAS, GCIL, as Lessor, and BIOSHIELD TECHNOLOGIES, INC., as Lessee
("Lessee"), entered that certain Lease herewith with respect to the lease of
certain premises located at 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx Xxxxxx,
Xxxxxxx , Xxxxxxx (herein called the "Lease"); and
WHEREAS, to induce GCIL to enter into the Lease with Lessee, Guarantor
agreed to guarantee payment by Lessee of its obligations to GCIL under the
Lease; and
WHEREAS, the Lease will be of direct benefit and advantage to
Guarantor;
NOW, THEREFORE, in consideration of the foregoing, and to induce GCIL
to enter into the Lease with Lessee, Guarantor does hereby covenant and agree
to, with and for the benefit of GCIL as follows:
1. Warranties. Guarantor represents and warrants that this
Guaranty has been duly authorized, executed and delivered by Guarantor and is a
legal, valid and binding instrument enforceable against Guarantor in accordance
with its terms.
2. Guaranty. Guarantor hereby unconditionally guarantees to GCIL
the full and punctual payment and performance by Lessee of all amounts of the
Lease and The First Amendment to Lease on Lessee's part to be paid therein.
3. Lease. The obligations of Guarantor hereunder shall in no way
be released or otherwise affected by any of the following, each of which may be
effected without notice to Guarantor:
3.1 any waiver by GCIL of any of the terms, covenants or
conditions of the Lease;
3.2 the giving by GCIL or by Lessee of consent to any matter
or thing under or relating to the Lease;
3.3 the granting by GCIL of any indulgences or extensions of
time to Lessee;
3.4 the receipt, application or release by GCIL of, or failure
by GCIL to apply, any security given for the performance or observance of the
terms, covenants and conditions on Lessee's part to be performed or observed
under the Lease;
3.5 any modification or amendment of the Lease (upon the
occurrence of which this Guaranty shall apply to the Lease, as thus modified or
amended); and
3.6 any permitted assignment of the interest of Lessee in the
lease.
PROVIDED, HOWEVER, notwithstanding anything to the contrary contained
in paragraphs 2 and 3 hereof, if any of the terms, covenants and conditions of
the Lease to be performed or observed by Lessee are amended, modified or changed
by an amendment to the Lease, and such modification increases the Lessee's
obligations, any increase in the obligation of the Guarantors on account of the
modification of the Lease will be subject to re-execution of the Guaranty.
However, Guarantor shall remain obligated under this Guaranty for Lessee's
payment obligations that existed as of the date of execution of this Guaranty.
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4. No Release. The obligations of Guarantor hereunder shall not
in any way be released or affected by:
4.1 the release or discharge of Lessee in any creditor's,
receivership, bankruptcy or other proceedings relating to Lessee;
4.2 the impairment, limitation or modification of the
liability of Lessee or the successors of Lessee in bankruptcy, or any remedy for
the enforcement of Lessee's liability under the Lease, resulting from the
operation of any present or future provision of federal or state law or other
statute, or from the decision of any court;
4.3 the rejection or disaffirmance of the Lease in any
proceedings relating to Lessee and which are referred to in paragraphs 4.1 and
4.2 hereof;
4.4 any disability or other defense of Lessee, other than
actual payment of the amount with respect to which a default is claimed by GCIL;
4.5 the cessation from any cause whatsoever of the liability
of Lessee under the Lease, except cessation of liability resulting form (i) the
expiration or earlier termination of the Lease for reasons other than (A)
default by Lessee or (B) arising out of the events described in paragraphs 4.1,
4.2, 4.3 and 4.4 hereof or (ii) a release or discharge of Lessee in accordance
with the express terms of the Lease; or
4.6 the cessation of the existence of Lessee in any manner or
for any cause, including, without limitation, dissolution, merger or
consolidation.
5. No Subrogation. Until all of the covenants and conditions of
the Lease on Lessee's part to be performed or observed are fully performed or
observed, Guarantor:
5.1 shall have no right to subrogation against Lessee by
reason of any payments by Guarantor, in compliance with the obligations of
Guarantor hereunder;
5.2 subordinates any liability or indebtedness of Lessee now
or hereafter held by Guarantor to the obligations of Lessee to GCIL under the
Lease.
6. Waiver. Guarantor hereby expressly waives notice of acceptance
of this Guaranty and notice of non-performance or non-observance of the terms,
covenants and conditions of the Lease on Lessee's part to be performed or
observed. Further, Guarantor hereby expressly waives all rights it may have now
or in the future under any statute, or at common law, or at law or in equity, or
otherwise, including, without limitation, any rights Guarantor may have under
Section 10-7-24 Official Code of Georgia Annotated, to compel GCIL to proceed
with respect to the guaranteed obligations against Lessee before proceeding
against, or as a condition to proceeding against, Guarantor. Guarantor agrees
that any notice or direction given at any time to GCIL which is inconsistent
with the waiver contained herein shall be void and may be ignored by GCIL, and,
in addition, may not be pleaded or introduced as evidence in any litigation
relating to this Guaranty for the reason that such pleading or introduction
would be at variance with the written terms of the Guaranty, unless GCIL has
specifically agreed otherwise in writing, signed by a duly authorized officer.
7. Liability. This is a guaranty of payment and not collection.
GCIL may proceed directly against Guarantor under this Guaranty without being
required to proceed against Lessee under the Lease, or to exhaust any rights or
remedies which GCIL may have against Lessee including, without limitation, any
other remedies contained in the Lease. GCIL may pursue its remedies under this
Guaranty concurrently with or independently of any action or proceeding relating
to the Lease which GCIL may institute against Lessee.
8. Applicable Modifications. This Guaranty shall apply to any
modification or amendment of the Lease with the same effect as if said
modification or amendment had been entered into by Lessee on the
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date hereof and had been hereinabove described as the Lease covered by this
Guaranty.
9. Binding Effect. This Guaranty shall be binding upon Guarantor,
its successors and assigns, and shall inure to the benefit of GCIL, its
successors and assigns.
10. No Amendment. This Guaranty may not be modified, discharged or
terminated orally or in any manner other than by agreement in writing signed by
GCIL and Guarantor.
11. Choice of Law. This Guaranty shall be governed and construed
in accordance with the laws of the State of Georgia.
12. Severability. Whenever possible, each provision of this
Guaranty shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Guaranty shall be prohibited
by or invalid under any such law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provision of this Guaranty.
12. Benefit. All obligations of Guarantor under this Guaranty are
imposed solely and exclusively for the benefit of GCIL, its successors and
assigns, and no other person shall have standing to require compliance with such
obligations in accordance with their terms, and no other person shall, under any
circumstances, be deemed to be the beneficiary of such obligations.
13. Notice. GCIL agrees to provide copies of all Notices under the
Lease to Guarantor at the address stated below.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty under seal the
day and year first above written.
GUARANTOR:
Allergy Xxxxxxxxxx.xxx, Inc.
By:
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Title:
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Address:
Allergy Xxxxxxxxxx.xxx, Inc.
Attention: Xxxxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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GCIL:
COLOGNE INVESTORS, LIMITED
By:
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Title:
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[Corporate Seal]
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Xxxxx Xxxxxx Xxxxxxxx
