EXHIBIT E
GUARANTY
THIS GUARANTY IS PROVIDED AS OF THIS 10 DAY OF January by Xxxxxx
Xxx Xxxxxxx Guarantor and Merchants Centre LLC Landlord.
GUARANTY
THIS GUARANTY is entered into on the basis of the following facts,
Understanding and intentions of the parties:
Signature Marketing Assoc. ("Tenant") has agreed to lease certain space
from Landlord pursuant to the terms of that certain lease (the "Lease")
dated January 6, 2000.
As a condition to its agreement to enter into the Lease, Landlord has
required that Guarantor execute this Guaranty guaranteeing performance
by Tenant of all the covenants and obligations of the Lease.
NOW, THEREFORE, in order to induce the Landlord to enter into the
Lease, Guarantor agrees as follows:
Guarantor unconditionally guarantees the timely performance of each and
every covenant and obligation on the part of Tenant to be performed
pursuant to the terms of the Lease in accordance with the terms of and
at the times and places therein specified. Said obligations of Tenant
are hereinafter called the "Lease Obligations".
1. The obligation of the Guarantor hereunder are independent of Tenant.
A separate action or actions may be brought against Guarantor hereon
whether or not action is brought against Tenant or Tenant be joined in
any such action or actions. Guarantor waives the benefit of any statute
of limitations affecting its ability hereunder or the enforcement
thereof.
2. Guarantor authorizes Landlord, without notice or demand and without
affecting its liability hereunder, from time to time to: a. amend,
modify, accelerate or defer the time for performance of the Lease
Obligations. Any increase or decrease of the rental rate shall be in
accordance with the terms of the lease. b. take and hold security for
the performance of the Lease Obligations and exchange, enforce, waive
or release any such security: and apply such security in whole or in
part and direct the order or manner of sale thereof as Landlord may
determine its sole discretion.
Guarantor waives any defenses that may become available by reason of
Civil Code sections 2787 to 2855, inclusive, including any right to
require Landlord to: proceed against tenant; proceed against or exhaust
any security held from Tenant; or pursue any other remedy in Landlord's
power whatsoever.
Guarantor waives any defense arising by reason of any disability or
other defense of Tenant or by reason of the bankruptcy, insolvency,
reorganization or other debtor's relief afforded to Tenant pursuant to
the present or any future provisions of the national bankruptcy Act or
any other state or federal statute, or by reason of the liability of
Tenant, other than full performance and discharge of the Lease
Obligations.
Until the Lease Obligations have been performed in full, Guarantor
shall have no right of subrogation and waives any right to enforce any
remedy which Landlord now has or may hereafter have against tenant and
waives the benefit of and any right to participate in any security now
or hereafter held by Landlord from tenant except to the extent such
security remains after performance in full of the Lease Obligations.
Guarantor waives all presentments, demands for performance, notices of
non-performance, protests, notices of protest, notices of dishonor and
notices of acceptance of this Guaranty and of the existence, creation
or incurring of all or any part of the Lease Obligations now existing
or hereafter arising. Guarantor acknowledges that it has access to and
knowledge of all information relevant to the financial condition of
Tenant and waives any right to notice of Tenant's condition or the
condition of the Lease from Landlord except in those instances and with
respect to those specific matters where such notice is specifically
requested.
Guarantor warrants that:
All financial reports and statements of Guarantor heretofore
furnished to Landlord are correct and accurate and reflect the
true financial condition of Guarantor as of date of said
reports and statements and there has been no material adverse
change since said date or dates. Guarantor has title to all
assets referred to in such reports or statements.
There are no actions, suits or proceedings pending, or so far
as Guarantor is advised, threatened against Guarantor which
might result in any material adverse change I the financial
condition of Guarantor; and
Neither (i) execution or delivery of this Guaranty, nor (ii)
compliance with the terms hereof will conflict with or result
in the breach of any law of statute or will constitute a
breach of default under any law or statute or will constitute
a breach or default under any agreement or instrument to which
Guarantor may be a party or result in the creation or
imposition of any change or lien upon any property or assets
of Guarantor.
Until performance of the Lease Obligations in full:
Guarantor shall not permit, cause or suffer the occurrence of
any condition, event or act which would conflict with or
constitute a break of or a default under, or which with the
passage of time or the giving of notice or both would result
in a conflict with or breach of or default under any agreement
or indenture to which Guarantor is a party, or any law,
statute or regulation applicable to Guarantor; and
Upon request by Landlord, Guarantor shall promptly advise
Landlord in writing of:
(1) All actions, suits or proceedings pending or to
its knowledge threatened at law or before any
federal, state municipal or other court or
governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign,
involving the possibility of judgements, penalties or
liabilities against Guarantor which might in the
aggregate exceed $10,000 + legal fees and which are
not adequately covered by insurance; and
(2) Any material adverse change in the business of
financial condition of Guarantor.
Landlord may without notice assign this Guaranty or its
interest hereunder in whole or in part.
This Guaranty shall be enforceable by Landlord in
accordance with the laws of the State of California
and shall be construed in accordance therewith.
Guarantor appoints Tenant as its agent for service of
process in any action or proceeding to enforce the
provisions hereof. Concurrently with service of any
postage prepaid, to Guarantor at
-----------------------.
Guarantor agrees to pay reasonable attorney's fees
and all other costs and expenses which may be
incurred by Landlord in the enforcement of this
Guaranty or of any rights of Landlord against Tenant
for the breach of the Lease Obligations.
No failure on the part of Landlord to pursue ant remedy
hereunder or under the Lease shall constitute a waiver by
Landlord f the right to pursue said remedy on the basis of the
same or a subsequent breach. Guarantor acknowledges that its
undertakings hereunder are given in consideration of
Landlord's acceptance of the Lease and Landlord's execution
thereof and that Landlord would not consummate the Lease were
it not for the execution and delivery of this Guaranty.
Landlord and Lessor are interchangeable, as well as Tenant and Lessee.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty the day
and year first above written.
"Guarantor"
Xxxxxx Xxx Xxxxxxx
