Exhibit 10.6
SUBLEASE GUARANTY
THIS GUARANTY is made as of March 9, 2001 by Jing Xxxx Xxxx (a
"Guarantor") in favor of Xxx Pharmaceuticals, Inc., a California corporation
("Sublandlord").
W I T N E S S E T H :
1. For valuable consideration, receipt of which is acknowledged, and to
induce Sublandlord to enter into a Sublease with Steady Star, Inc., a California
corporation ("Sublessee"), Guarantor hereby absolutely, unconditionally and
irrevocably guarantees to Sublandlord, and agrees fully to pay, perform and
discharge, as and when payment, performance and discharge are due, all of the
covenants, obligations and liabilities of Sublessee under the Sublease and all
amendments, modifications, renewals, extensions, supplements, substitutions and
replacements of the Sublease (the "Guaranteed Obligations"). Each individual
Guarantor under this Guaranty shall be jointly and severally liable for the
Guaranteed Obligations. The obligations of Guarantor under this Guaranty shall
be absolute, unconditionally and irrevocable and shall continue and remain in
full force and effect until all of the Guaranteed Obligations have been fully
paid, performed and discharged.
2. The obligations of Guarantor under this Guaranty shall not be
affected, modified or impaired by the occurrence of any of the following events,
whether or not with notice to or the consent of, Guarantor: (a) the waiver,
surrender, compromise, settlement, release or termination of any or all of the
Guaranteed Obligations; (b) the failure to give notice to Guarantor of the
occurrence of an event of default under the Guaranteed Obligations (c) the
extension of the time for the payment, performance or discharge of any or all of
the Guaranteed Obligations; (d) the amendment or modification (whether material
or otherwise) of the Sublease or the Guaranteed Obligations in any respect; (e)
any failure, omission, delay or lack on the part of Sublandlord to enforce,
assert or exercise any right, power or remedy conferred on Sublandlord under the
Sublease; (f) the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all of the assets, marshalling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition with creditors or
adjustment of debts, or other similar proceedings affective Sublessee or
Guarantor or any of the assets of either of them; (g) the release or discharge
by operation of law of Sublessee from the payment, performance or discharge of
any or all of the Guaranteed Obligations; (h) the release or discharge by
operation of law of Guarantor from any or all of the obligations of Guarantor
under this Guaranty; or (i) the invalidity or unenforceability of any or all of
the Guaranteed Obligations. Guarantor acknowledges that Sublandlord would not
enter into the Sublease without this Guaranty and that Sublandlord is relying on
this Guaranty.
3. The obligations of Guarantor under this Guaranty are independent of
the Guaranteed Obligations. Guarantor agrees that Sublandlord shall have the
right to process against Guarantor directly and independently of Sublessee. A
separate action may be brought and prosecuted against Guarantor whether or not
an action is brought against Sublessee or Sublessee is joined in any such
action. Guarantor authorizes Sublandlord and Sublessee, without notice to,
demand of, or consent from Guarantor and without releasing or affecting
Guarantor's liability under this Guaranty, from time to time to amend, modify,
renew, extend, supplement or replace the Sublease or the Guaranteed Obligations
or otherwise change the terms of the Sublease or the Guaranteed Obligations, to
take and hold security for the Guaranteed Obligations, and to enforce, waive,
surrender, impair, compromise or release any such security or any or all of the
Guaranteed Obligations or any person or entity liable for any or all of the
Guaranteed Obligations. Guarantor
shall be and remain bound under this Guaranty notwithstanding any such act or
omission by Sublessee or Sumblandlord. Guarantor waives all rights to require
Sublandlord to proceed against Sublessee, to proceed against or exhaust any
security held by Sublandlord, or to pursue any other remedy in Sublandlord's
power. Sublandlord shall have the right to exercise any right or remedy it may
have against Sublessee or any security held by Sublandlord. Guarantor waives the
right, if any, to the benefit of, or to direct the applicable of any security
held by Sublandlord. Guarantor waives (a) any defense arising out of any
alteration of the Guaranteed Obligations, (b) any defense arising out of the
absence, impairment or loss of any right of reimbursement or subrogation or
other right or remedy of Guarantor against Sublessee or any security held by
Sublandlord, and (c) any defense arising by reason of any disability or other
defense of Sublessee or by reason of the cessation or reduction from any cause
whatsoever of the liability of Sublessee other than full payment, performance
and discharge of the Guaranteed Obligations. The cessation or reduction of the
liability of Sublessee for any reason, other than full payment, performance and
discharge of the Guaranteed Obligations shall not release or affect in any way
the liability of Guarantor under this Guaranty.
4. If Sublessee becomes insolvent or is adjudicated bankrupt or files a
petition for reorganization, arrangement, composition or similar relief under
any present or future provision of the Federal Bankruptcy Code, or if such a
petition is filed against Sublessee, or Sublessee makes a general assignment for
the benefit of creditors, and in any such proceeding any or all of the
Guaranteed Obligations are terminated or rejected or any or all of the
Guaranteed Obligations are modified or abrogated, Guarantor agrees that
Guarantor's liability hereunder shall not thereby be affected or modified and
such liability shall continue in full force and effect as if no such action or
proceeding had occurred. This Guaranty shall continue to be effective or be
reinstated, as the case may be, if any payment of the Guaranteed Obligations
must be returned by Sublandlord upon the insolvency, bankruptcy or
reorganization of Sublessee, Guarantor, or otherwise, as though such payment had
not been made. No payment or performance by Guarantor shall give Guarantor any
right of subrogation to any rights or remedies of Sublandlord against Sublessee.
Guarantor waives all rights of subrogation to any rights or remedies of
Sublandlord against Sublessee and Guarantor waives all other rights of
subrogation or reimbursement with respect to Sublessee that might otherwise
arise from the performance of this Guaranty by Guarantor.
5. Guarantor assumes the responsibility for being and keeping Guarantor
informed of the financial condition of Sublessee and of all other circumstances
bearing upon the risk of failure to pay, perform or discharge any of the
Guaranteed Obligations which diligent inquiry would reveal, and Guarantor agrees
that Sublandlord has no duty to advise Guarantor of information known to
Sublandlord regarding such condition or any such circumstance. Guarantor
acknowledges that repeated and successive demands may be made and payments or
performance made hereunder in response to such demands as and when, from time to
time, Sublessee defaults in the payment, performance or discharge of the
Guaranteed Obligations. Notwithstanding any such payments and performance
hereunder, this Guaranty shall remain in full force and effect and shall apply
to any and all subsequent defaults by Sublessee. It is not necessary for
Sublandlord to inquire into the capacity, authority or powers of Sublessee or
the partners, directors, officers, employees or agents acting or purporting to
act on behalf of Sublessee, and all of the Guaranteed Obligations made or
created in reliance upon the purported exercise of such powers will be
guaranteed hereunder. Guarantor hereby subordinates all indebtedness of
Sublessee to Guarantor now or hereafter held by Guarantor to all indebtedness of
Sublessee to Sublandlord. If requested by Sublandlord, Guarantor shall collect,
enforce and receive all such indebtedness of Sublessee to Guarantor as trustee
for Sublandlord and Guarantor shall pay such indebtedness to Sublandlord on
account of the indebtedness of Sublessee to Sublandlord, but without otherwise
reducing or affecting in any manner the liability of Guarantor under this
Guaranty.
6. Guarantor waives all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor and notices of
acceptance of this Guaranty. Guarantor agrees to pay all costs and expenses,
including reasonable attorneys' fees, which are incurred by Sublandlord in the
enforcement of this Guaranty. Guarantor hereby expressly, irrevocably, fully and
forever releases, waives and relinquishes any and all right to trial by jury
and any and all rights to receive punitive, exemplary and consequential damages
from Sublandlord (or any past, present or future board member, trustee,
director, officer, employee, agent, representative, or advisor of Sublandlord)
in any claim, demand, action, suit, proceeding or cause of action in which
Sublandlord and Guarantor are parties, which in any way (directly or indirectly)
arises out of results from or relates to any of the Guaranteed Obligations or
the enforcement of this Guaranty, in each case whether now existing or hereafter
arising and whether based on contract or tort or any other legal basis. If any
provisions of this Guaranty is held to be invalid or unenforceable, the validity
or enforceability of the other provisions of this Guaranty shall not be
affected. This Guaranty may not be amended or modified in any respect except by
a written agreement signed by Guarantor and Sublandlord. As used in this
Guaranty, the singular shall include the plural. This Guaranty shall bind and
inure to the benefit of Guarantor and Sublandlord and their respective personal
representatives, heirs, successors and assigns. This Guaranty shall be governed
by and construed in accordance with the laws of the state in which the Project
is located.
7. Each Guarantor agrees that nothing contained herein shall prevent
Sublessor from suing on the Sublease or from exercising any rights available to
it thereunder and that the exercise of any of the aforesaid rights shall not
constitute a legal or equitable discharge of such Guarantor. Without limiting
the generality of the foregoing, each Guarantor hereby expressly waives any and
all benefits under California Civil Code Sections 2809, 2810, 2845, 2847, 2848,
2849, 2850, and the second sentence of California Civil Code Section 2822 (a)
(but only until Sublessor has been paid in full the obligations owed by
Sublessee under the Lease). In addition, each Guarantor agrees that Sublessor
(not Sublessee) shall have the right to designate the portion of Sublessee's
obligations under the Sublease that is satisfied by a partial payment by
Sublessee.
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the
date specified in the Sublease.
By /s/ Long Jing Jing
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Jing Xxxx Xxxx
