EXHIBIT 10.40
UNCONDITIONAL CONTINUING GUARANTY OF LEASE
THIS UNCONDITIONAL CONTINUING GUARANTY OF LEASE made this 20th day of
February, 1998, by and between HI-RISE RECYCLING SYSTEMS, INC., a Florida
corporation, 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000, Fax (000) 000-0000
(hereinafter called "Guarantor") and XXXXXX FAMILY LIMITED PARTNERSHIP, a
Florida Limited Partners, ( hereinafter called "Landlord").
WHEREAS, HESCO SALES, INC., a Florida corporation, an wholly owned
subsidiary of Guarantor, (hereinafter called "Corporation"), wishes to lease
from Landlord certain premises located in Miami, Florida, and enter into a lease
agreement (the "Lease"); and
WHEREAS, Guarantor has a financial interest in Corporation and Landlord
is unwilling to enter into the Lease with Corporation unless it receives an
unconditional and continuing guaranty from Guarantor as to all obligations
arising under the Lease; and
WHEREAS, Guarantor is desirous that Landlord enter into the Lease with
Corporation.
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, and in order to induce Landlord to enter into the Lease
with Corporation, Guarantor hereby absolutely and unconditionally guarantees to
Landlord and its successors and assigns, the full and prompt payment of any
amounts due or to become due to Landlord under the Lease and the full payment
and performance of all Corporation's obligations to Landlord under the Lease.
Guarantor covenants and agrees
1. Guarantor expressly agrees to pay all legal expenses and reasonable
attorneys' fees (including those relative to appellate proceedings, if any)
actually incurred by Landlord in any collection relative to the obligations
hereby guaranteed or in enforcing this Guaranty against the undersigned.
2. This Guaranty will continue unchanged by any bankruptcy,
reorganization or insolvency of Corporation or any successor or assignee thereof
or by any disaffirmance or abandonment by a trustee of Corporation.
3. This Guaranty is and shall remain an unconditional and continuing
guaranty of payment and performance and not of collection, shall remain in full
force and effect. To that end, Guarantor hereby expressly waives any right to
require Landlord to bring any action against Corporation or any other person(s)
or to require that resort be had to any security. Guarantor acknowledges that
its liabilities and obligations hereunder are primary rather than secondary.
4. Time is of the essence hereof. Any notice(s) to Guarantor shall be
sufficiently given, if mailed by certified mail, postage prepaid, return receipt
requested, or by overnight delivery services or by facsimile to the first above
stated address(es) of Guarantor.
5. This Unconditional Continuing Guaranty of Lease shall be binding
upon Guarantor, and the legal representatives, successors and assigns of
Guarantor, and it shall inure to the benefit of, and be enforceable by Landlord,
and its successors, transferees and assigns. It further shall be deemed to have
been made under and shall be governed by the Laws of the State of Florida in all
respects, including matters of construction, validity and performance.
6. No waiver by Landlord or any default(s) by Guarantor or Corporation
shall operate as a waiver of any other default or of the same default or of the
same default on a future occasion. If more than one person has signed this
Guaranty, such parties are jointly and severally obligated hereunder. Further,
use of the masculine or neuter pronoun herein shall include the masculine,
feminine and neuter, and also the plural.
7. Guarantor hereby waives: (i) notice of acceptance of this Guaranty;
(ii) presentment and/or demand for payment or performance of any of the
obligations of Corporation under the Lease; (iii) protest or notice of dishonor
or default to Guarantor or to any other person with respect to any of the
obligations of Corporation under the Lease, and (iv) any demand for payment
under this Guaranty.
WITNESS the hand(s) and seal(s) of the undersigned, this Unconditional
Continuing Guaranty of Lease being executed and delivered on the date first
above written.
HI-RISE RECYCLING SYSTEMS, INC.
a Florida Corporation
By: /s/ J. XXXX XXXXXXX
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J. Xxxx XxXxxxx
Chief Operating Officer
