EXHIBIT 2.13
GUARANTY OF LEASE
WHEREAS, CARDBECK MIAMI TRUST, as Landlord
("Landlord"), and XXXXXXX CORPORATION, as Tenant ("Tenant"), are
about to enter into a certain lease ("Lease") of even date
herewith of certain improved premises ("Property") located in
Miami, Florida, as more fully described in the Lease, and
WHEREAS, Tenant is a wholly-owned subsidiary
corporation of XXXXXXX XXXXXXX, INC. a Delaware corporation
("Guarantor"), and
WHEREAS, Guarantor acknowledges that Landlord would not
enter into the Lease unless this Guaranty accompanied execution
and delivery of the Lease.
NOW, THEREFORE, in consideration of One ($1.00) Dollar
and other valuable consideration and to induce Landlord to enter
into the Lease, Guarantor, having an office at 0000 X. Xxxxxx
Xxxxxxxxx, X. X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxxx 00000-0000, does
hereby on behalf of itself and its successors and assigns
covenant and agree as follows:
(a) If Tenant, its successors or assigns, shall
default at any time during the term of the Lease (including any
renewal terms) in the payment of Basic Rent (as defined in the
Lease), additional rent, or other charges payable by Tenant under
the Lease, or in the observance or performance of any of the
terms, covenants or conditions of the Lease on Tenant's part to
be observed or performed, beyond the applicable grace period
provided in the Lease for the curing of such default, then
Guarantor will, on demand, observe and perform said terms,
covenants and conditions and pay to Landlord all Basic Rent,
additional rent and other charges payable under the Lease,
together with all arrearages of the foregoing amounts, all
interest, fees, penalties, late fees, damages and expenses which
Landlord is entitled to recover pursuant to the terms of the
Lease in consequence of a default under the Lease, all reasonable
costs and expenses that may be incurred by Landlord in enforcing
Tenant's covenants and agreements under the Lease and all
reasonable costs that may be incurred by Landlord in enforcing
the covenants and agreements of Guarantor hereunder, without
requiring notice from Landlord or any other person or entity.
(b) Guarantor may, at Landlord's option, be joined in
any action or proceeding commenced by Landlord against Tenant in
connection with and based upon the Lease or any term, covenant or
condition thereof, and that recovery may be had against Guarantor
in such action or proceeding or any independent action or
proceeding against Guarantor without Landlord first asserting,
prosecuting, or exhausting any remedy or claim against Tenant,
its successors or assigns;
(c) This Guaranty shall remain and continue in full
force and effect as to any renewal, extension, modification or
amendment of the Lease and as to any assignee of Tenant's
interest in the Lease, and notwithstanding the fact that any
assignee of Tenant's interest in the Lease shall be released
thereunder, however, this Guaranty shall automatically terminate
if Tenant assigns its interest in the Lease to Guarantor, or if
Tenant merges with Guarantor;
(d) (i) This Guaranty constitutes an absolute,
unconditional, present and continuing guaranty of payment and not
of collection and (ii) the validity of this Guaranty and the
obligations of Guarantor hereunder shall in no wise be
terminated, affected or impaired by reason of (A) any action
which Landlord and/or Lender (as defined in the Lease) may take
or fail to take against Tenant, (B) any waiver of, or failure to
enforce, any of the rights or remedies reserved to Landlord in
the Lease, or otherwise, (C) the bankruptcy or insolvency of
Tenant under the Lease and whether or not the term thereof shall
terminate by reason of said bankruptcy or insolvency, (D) any set-
off, counterclaim, reduction or diminution of an obligation, or
any defense of any kind or nature (other than payment of the
liabilities and obligations guaranteed hereunder) which Guarantor
or Tenant has or may have with respect to a claim hereunder or
under the Lease, (E) any of the events or conditions described in
Section 5(a) of the Lease or (F) any other occurrence or
circumstance which might otherwise constitute a legal or
equitable discharge of a surety or guarantor. No invalidity,
irregularity, contractual or other unenforceability of all or any
part of the liabilities and obligations guaranteed hereunder or
of any security therefor, shall affect, impair or be a defense to
this Guaranty.
(e) In the event of termination of the Lease by reason
of the occurrence of an Event of Default as defined in Sections
19(d), 19(e) or 19(f) of the Lease or in the event of the
disaffirmance or rejection of the Lease in any bankruptcy or
insolvency proceeding, and without limiting any of Landlord's
rights under this Guaranty, Guarantor shall, upon written request
of Landlord, made within thirty (30) days next following notice
to Landlord of any such termination, disaffirmance or rejection
or, at any time thereafter, (i) pay to Landlord all Basic Rent,
additional rent and other charges due and owing from Tenant to
Landlord under the Lease to and including the date of such
termination, disaffirmance or rejection, and (ii) enter, as
"Tenant", into a new lease with Landlord, of the Property demised
in the Lease for a term commencing on the effective date of such
termination, disaffirmance or rejection, and ending on the date
fixed in the Lease for its natural expiration (unless such new
lease shall be sooner terminated as therein provided) at the same
Basic Rent and upon the same executory terms, covenants and
conditions as are contained in the Lease except that (a)
Guarantor's right as "Tenant" under the new lease shall be
subject to the possessory rights of Tenant under the Lease and
the possessory rights of any person, firm or corporation claiming
by, through or under Tenant or by virtue of any statute or of an
order of any court, and (b) such new lease to Guarantor shall
require that all defaults existing under the Lease be cured by
Guarantor with due diligence, (iii) execute and deliver to Lender
a subordination, non-disturbance and attornment agreement (the
"New Subordination Agreement") substantially identical to the
subordination, non-disturbance and attornment agreement of even
date herewith executed by Tenant and (iv) deliver to Landlord and
Lender an opinion of counsel reasonably satisfactory to Landlord
and Lender stating that the new lease and the New Subordination
Agreement are duly executed, authorized and delivered. In the
event Guarantor shall default in its obligation to enter into
said new lease and such default shall continue for a period of
ten (10) days next following Landlord's request therefor, then,
in addition to all other remedies by reason of such default,
either at law or in equity, Landlord shall have the same rights
and remedies against Guarantor as if Guarantor had entered into
said new lease and said new lease had thereafter been terminated,
as at the commencement date thereof, by reason of Guarantor's
default thereunder;
(f) If Guarantor consolidates or merges with, or sells
or otherwise disposes of all or substantially all of its assets
to any other individual, corporation, company, partnership,
association, trust or any other entity or organization (herein
referred to as a "Person"), in each case whether directly or
indirectly, and if Guarantor is not the survivor of such
transaction, the survivor shall (i) be a Person subject to the
laws of a State of the United States and (ii) expressly assume in
writing Guarantor's obligations under this Guaranty;
(g) Except as otherwise expressly provided in this
Guaranty, Guarantor waives notice of acceptance of this Guaranty
and of any liability to which it may apply, and notice or proof
of reliance by Landlord or Lender upon this Guaranty, and further
waives diligence, presentment, demand of payment, protest, notice
of dishonor or nonpayment of any of the liabilities and
obligations guaranteed hereby, suit or taking other action or
making any demand against, and any other notice to, any Person
liable thereon (including Guarantor);
(h) If claim is ever made upon Landlord or Lender for
repayment or recovery of any amount or amounts received by
Landlord or Lender in payment or on account of the liabilities
and obligations guaranteed hereunder and Landlord or Lender
repays to or for the benefit of Guarantor or Tenant or any of
their respective creditors all or part of such amount by reason
of (i) any judgment, decree or order or any court or
administrative body having jurisdiction over Landlord or Lender,
or (ii) any settlement or compromise of any such claim effected
by Landlord or Lender with any such claimant (including Tenant),
then and in such event Guarantor shall be and remain liable under
this Guaranty for the amount so repaid or recovered to the same
extent as if such amount had never originally been received by
Landlord or Lender;
(i) Nothing contained in this Guaranty shall be
construed to give Guarantor any direct or indirect claim, right
or remedy against Tenant by reason of this Guaranty and/or any
performance by Guarantor, including, without limitation, any
claim, remedy or right of subrogation, reimbursement or
participation in any claim, right or remedy of Landlord or
Lender against Tenant, and all such claims, rights or remedies
are hereby waived. Guarantor will protect, indemnify and hold
harmless Landlord and Lender from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs,
fees, charges and expenses (including, without limitation,
reasonable attorneys' fees and expenses) imposed upon or incurred
by or asserted against it or them by reason or arising out of any
payment of Basic Rent or additional rent under the Lease being
deemed or asserted to be voidable under the United States
Bankruptcy Code or any other bankruptcy or insolvency law,
whether by reason of being a preference or otherwise;
(j) Guarantor submits itself to the jurisdiction of
the State of Florida in any action or proceeding arising out of
or under the Lease or this Guaranty, and agrees that the laws of
the State of Florida shall apply in any such action or
proceeding; and
(k) Guarantor agrees that all notices, consents and
other communications under this Guaranty (collectively, "Notice"
or "Notices") shall be in writing and shall be deemed to have
been given hereunder for all purposes (i) three (3) days after
having been sent by United States mail, by registered or
certified mail, return receipt requested, postage prepaid,
addressed to the other party at its address as stated below, (ii)
one (1) day after having been sent by Federal Express or other
nationally recognized air courier service, to the addresses
stated below or (iii) one (1) day after having been transmitted
via facsimile, provided that a conforming signed original is
mailed to the party to receive the notice on the date it is
transmitted:
To Landlord:
Cardbeck Miami Trust
c/o Cardinal Capital Partners, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile: 000-000-0000
With a copy to Lender:
Nomura Asset Capital
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile: 000-000-0000
To Guarantor:
Office of General Counsel
Xxxxxxx Xxxxxxx, Inc.
0000 X. Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile: 000-000-0000
If any Lender shall have advised Guarantor by Notice in
the manner aforesaid that it is the holder of a Mortgage and
stating in said Notice its address for the receipt of Notices,
then simultaneously with the giving of any Notice by Tenant to
Landlord, Tenant shall serve one or more copies of such Notice
upon Lender in the manner aforesaid and no Notice shall be
effective unless and until Lender shall be sent a copy thereof.
For the purposes of this paragraph, any party may substitute its
address by giving fifteen (15) days notice to the other party in
the manner provided above.
(l) This Guaranty shall be interpreted and enforceable
in accordance with the laws of the State of Florida and shall be
binding on Guarantor, its successors and assigns, and shall enure
to the benefit of Landlord and Lender, their and each of their
respective successors and assigns and all future owners of the
Property. If any portion of this Guaranty is determined to be
invalid or unenforceable, the remainder of this Guaranty shall
nevertheless continue in full force and effect. Any provision of
this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction;
(m) Whenever an Event of Default under the Lease is
outstanding, or whenever Guarantor receives written notice from
Lender that an Event of Default under the Mortgage is outstanding
(Guarantor having the right to rely on such notice with no
obligation to verify the contents thereof), then, in addition to
any other rights of Lender hereunder (i) Lender or its agent
shall have the right, in the name and on behalf of Landlord, to
take all actions, and make all decisions, which Landlord is
entitled to take or make under this Guaranty, (ii) any actions
taken by Lender or its agent in the name and on behalf of
Landlord (including, without limitation, actions taken or
decisions made pursuant to Sections (a) and (e) hereof) shall be
deemed in all respects to constitute actions taken and decisions
made by Landlord and (iii) any such actions taken and decisions
made by Landlord itself shall be deemed void and of no force and
effect unless Guarantor receives written consent to such actions
from such holders or their agent;
(n) Neither this Guaranty nor any term hereof may be
changed, waived, discharged, amended, modified, extended or
terminated orally, but only by an instrument in writing signed by
the party against which the enforcement of the change, waiver,
discharge or termination is sought, together with the written
consent of the Lender, which consent may be withheld at Lender's
discretion. Any such attempted change, waiver, discharge,
amendment, modification, extension or termination without such
consent of the Lender shall be void and of no force and effect.
Guarantor hereby warrants and represents that Guarantor
is the owner and holder of all the issued and outstanding shares
of Tenant and that the execution and delivery of this Guaranty
are not in contravention of its Certificate of Incorporation or
by-laws and have been authorized by its Board of Directors and
are in furtherance of its corporate purposes, and that said Board
of Directors has full authority under the said by-laws to
authorize the execution of this Guaranty and to validly bind
Guarantor.
WITNESS the execution of this instrument as a sealed
instrument as of the 25th day of June, 1998.
XXXXXXX XXXXXXX, INC.,
a Delaware corporation
By: XXXXX X. XXXXXX
Its: Vice President and Controller
