Exhibit 10.12
GUARANTEE
GUARANTEE made this 16th day of April, 1999, jointly and
severally, by OTEC, INC., a New Jersey corporation ("OTEC") having an office for
the conduct of business at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
RBL AGENCY, LTD., a New York corporation ("RBL") having an office for the
conduct of business at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. OTEC and
RBL shall be collectively referred to as the "Guarantors" and individually, as a
"Guarantor".
W I T N E S S E T H :
00 Xxxx 00xx Xx. LLC (hereinafter referred to as "Landlord") and
Xxxxxxx.xxx, Ltd. (hereinafter referred to as "Tenant") have entered into that
certain Lease Agreement dated April 16, 1999 (hereinafter referred to as the
"Lease") for the 14th and 16th floors of the building located at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx. As an inducement to Landlord's agreeing to enter
into such Lease, the Guarantors agreed to guarantee unconditionally the
performance by Tenant of certain of Tenant's obligations under the Lease,
including the payment by Tenant of all Rent thereunder.
Terms not otherwise defined herein shall have the meanings given
such terms in the Lease.
NOW, THEREFORE, in consideration of the premises herein contained
and for other good and valuable consideration, the receipt of which is hereby
acknowledged by the Guarantors, the Guarantors, jointly and severally, covenant,
agree, represent and warrant to Landlord as follows:
1. REPRESENTATIONS AND WARRANTIES.
1.1 REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS. Each
Guarantor represents and warrants to Landlord, that:
(a) The Guarantor has the power to enter into and perform
this Guarantee.
(b) Neither this Guarantee nor the execution, delivery and
performance hereof shall violate any statute, ordinance, regulation, court order
or decree or order or decree of any other governmental authority or agency or
any other agreement to which the Guarantor is subject.
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(c) The Guarantor is not and by the execution and delivery
hereof shall not then become insolvent as defined under Section 101(32) of the
Federal Bankruptcy Code (11 U.S.C. Section 101(32)).
(d) This Guarantee constitutes a valid and binding obligation
of the Guarantor and is enforceable in accordance with its terms.
(e) No governmental approvals or consents are required to be
obtained to authorize the execution, delivery or performance of the Guarantor's
obligations pursuant to this Guarantee.
(f) 100% of the outstanding shares of OTEC are owned
collectively by the two largest shareholders of Tenant; 100% of the outstanding
shares of RBL are owned collectively by the two largest shareholders of Tenant.
(g) All representations and warranties made to Landlord
herein are factually correct and there has been no omission of any fact which by
its inclusion in any representation or warranty would materially alter the
accuracy, truthfulness or meaning of any such representation or warranty.
1.2 MATERIALITY OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Guarantors herein is deemed to be
material to inducing Landlord to enter into the Lease and to perform Landlord's
obligations thereunder. The Guarantors acknowledge that Landlord by virtue of
entering into the Lease and performing its obligations thereunder has acted and
changed and shall hereafter act and change its position in reliance of this
Guarantee and the Guarantors' representations and warranties made herein.
2. GUARANTEE OF TENANT'S OBLIGATIONS.
2.1 OBLIGATIONS GUARANTEED.
(a) The Guarantors hereby irrevocably, absolutely and
unconditionally, jointly and severally, guarantee to Landlord the full and
timely payment when due of all Rent and other payments due to Landlord under the
Lease. Such other payments shall include, without limitation, (i) the cost of
discharging of record any mechanic's, materialman's or other liens, charges or
orders for the payment of money filed against the Building or the Leased
Premises because of any act or omission (or alleged act or omission) of Tenant
or any contractor, subcontractor, employee or agent of Tenant, and (ii)
Landlord's unamortized costs of (x) any brokerage commissions actually paid by
Landlord in connection with the Lease and (y) the free rent period granted to
Tenant under the Lease.
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(b) Without limiting the Guarantors' obligations pursuant to
paragraph (a) of this Section 2.1, the Guarantors further irrevocably,
absolutely and unconditionally, jointly and severally, guarantee to Landlord the
full and timely performance of the following obligations under the Lease (the
"Guaranteed Obligations"):
(i) Tenant's obligation to vacate the Leased Premises
upon the expiration or earlier termination of the term of the Lease; and
(ii) Tenant's obligation, upon Tenant's vacating of the
Leased Premises, to remove Tenant's property therefrom and to surrender the
Leased Premises to Landlord in the condition specified in Article 19 and Section
6.04 of the Lease.
(c) Each and every default in the payment of Rent or in the
performance of any of the Guaranteed Obligations shall give rise to a separate
cause of action hereunder, and separate suits may be brought hereunder as the
cause of action arises.
2.2 GUARANTEE UNCONDITIONAL, IRREVOCABLE, ABSOLUTE AND
CONTINUING. The obligations of the Guarantors under this Guarantee shall be
unconditional, irrevocable and absolute and shall continue and remain in full
force and effect until all of the Guaranteed Obligations and the payment of all
Rent under the Lease, have been satisfied in their entirety and all other sums
due to Landlord pursuant to this Guarantee have been paid in full.
2.3 CONTINUED VALIDITY OF THIS GUARANTEE. To the fullest extent
permitted by law, the obligations of the Guarantors hereunder shall be valid and
enforceable under all circumstances whatsoever and in furtherance but not in
limitation thereof, shall not be affected, modified, released, or impaired by
any state of facts or the happening from time to time of any event, including,
without limitation, any one or more of the following whether or not with notice
to or the consent of the Guarantors:
(a) The irregularity, illegality or unenforceability of, or
any defect in the Lease.
(b) Any present or future law or order of any government (de
jure or de facto) or of any agency thereof purporting to reduce, amend or
otherwise affect the Lease.
(c) The compromise, settlement, release, extension,
indulgence, change, modification, amendment (including any increase in Rent or
extension of the term thereof) of any or all of the obligations, covenants or
agreements of Tenant pursuant to the Lease; provided, however, that if Tenant's
interest in and to the Lease is assigned to any person or entity in accordance
with the terms and provisions of the Lease or with Landlord's consent, then
unless otherwise agreed to by the Guarantors, the obligations of the Guarantors
shall not extend to (i)
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the payment of any rent in excess of the Rent calculated under the terms of the
Lease as the same may have been modified while Tenant or another person or
entity related to the Guarantors was Tenant thereunder or (ii) the performance
of any other obligation beyond the stated expiration date of the term of the
Lease or the expiration of any renewal thereof pursuant to the terms of the
Lease as the same may have been modified while Tenant or another person or
entity related to the Guarantors was Tenant thereunder.
(d) The failure to give notice to the Guarantors of the
occurrence of any default under the terms and provisions of the Lease.
(e) The actual or purported assignment of any of the
obligations, covenants and agreements contained in this Guarantee, except an
assignment consented to by Landlord.
(f) The waiver of the payment, performance or observance by
Tenant of any of the obligations, conditions, covenants or agreements or any or
all of them contained in the Lease, including the obligation to pay Rent.
(g) The receipt and acceptance by Landlord of any sums on
account of Rent irrespective of any dispute which may then be or theretofore had
been ensuing between Landlord and Tenant.
(h) The extension of the time for payment of any Rent.
(i) Any failure, omission, delay or lack of action on the
part of Landlord or any other person to enforce, assert or exercise any right,
power or remedy conferred upon it under the Lease.
(j) The voluntary commencement or the existence of an
involuntary case or proceeding under the United States Bankruptcy Code or under
any state or foreign bankruptcy, insolvency or similar statute affecting Tenant;
the liquidation, dissolution, merger, consolidation, sale or other disposition
of all or substantially all the assets of Tenant; the marshaling of Tenant's
assets and liabilities; any receivership, insolvency, assignment for the benefit
of creditors, reorganization, arrangement, composition with creditors or
readjustment of debts in respect of Tenant in its capacity as a debtor or
obligor; or other similar events or proceedings affecting Tenant or any
allegation or contest of the validity of this Guarantee or the Lease in any such
proceeding; it being specifically understood, consented and agreed to that this
Guarantee shall remain and continue in full force and effect and shall be
enforceable against the Guarantors to the same extent and with the same force
and effect as if such events and proceedings had not been instituted; and it is
the intent and purpose of this Guarantee that the Guarantors shall and do hereby
waive all rights and benefits which might accrue to the Guarantors by reason of
any such proceedings.
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(k) Any impairment, whether by negligence or otherwise, of
any rights of subrogation of the Guarantors which may be found to exist.
(l) The release, substitution or replacement, whether or not
in accordance with the terms of the Lease, of any property subject thereto or
any re-delivery, repossession, surrender or destruction of any such property, in
whole or in part.
(m) The lawful termination of the Lease by act of Landlord
due to a default thereunder by Tenant or by operation of law or the exercise of
any other right or remedy under the Lease by Landlord.
2.4 WAIVER OF NOTICE OF ACCEPTANCE. The Guarantors hereby
expressly waive notice from Landlord of its acceptance and reliance on this
Guarantee. This Guarantee shall become effective immediately upon delivery of an
executed counterpart hereof to Landlord.
3. WAIVERS AND RESTRICTIONS IMPOSED UPON THE GUARANTORS.
3.1 WAIVER OF TRIAL BY JURY. EACH GUARANTOR HEREBY WAIVES THE
RIGHT TO TRIAL BY JURY IN THE EVENT OF ANY LITIGATION BETWEEN LANDLORD AND THE
GUARANTORS (OR EITHER OF THEM) IN RESPECT OF ANY MATTER ARISING OUT OF THIS
GUARANTEE.
3.2 RESTRICTIONS ON THE GUARANTORS. Each Guarantor agrees not
to dispose of any substantial part of his property, business or assets remaining
after the execution and delivery of this Guarantee without fair consideration.
Each Guarantor agrees not to seek contribution from any other Guarantor until
all the obligations hereunder have been fully satisfied. If any amount shall
nevertheless be paid to a Guarantor by Tenant or another Guarantor, such amount
shall be held in trust for the benefit of Landlord and shall forthwith be paid
to Landlord to be credited and applied to the obligations of Tenant, whether
matured or unmatured. The provisions of this Section 3.2 shall survive the
termination of this Guarantee, and any satisfaction and discharge of Tenant by
virtue of any payment, court order or any federal or state law.
4. MISCELLANEOUS PROVISIONS.
4.1 PREFERENCES, ETC. If after receipt of any payment hereunder
applied (or intended to be applied) to the payment of, all or any part of any
sums guaranteed hereunder, Landlord is compelled to surrender such payment or
proceeds to any person because such payment or application of proceeds is or may
be avoided, invalidated, declared fraudulent, set aside, determined to be void
or voidable as a preference, fraudulent conveyance, impermissible set off or a
diversion of trust funds, then the obligations or part thereof intended to be
satisfied
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shall be reinstated and continue and this Guarantee shall continue in full force
as if such payment or proceeds had not been received by Landlord,
notwithstanding any revocation thereof or the cancellation of the Lease, any
note or other instrument evidencing any obligation of Tenant or otherwise; and
the Guarantors shall be liable to pay to Landlord, and hereby indemnify Landlord
and hold Landlord harmless for, the amount of such payment or proceeds so
surrendered and all expenses (including all reasonable attorneys' fees, court
costs and expenses attributable thereto) incurred by Landlord in the defense of
any claim made against Landlord that any payment or proceeds received by
Landlord in respect of all or any part of such sums guaranteed hereunder must be
surrendered, unless Tenant pays to Landlord the amount which Landlord is
compelled to surrender and such payment is not similarly subject to being
avoided, invalidated, declared fraudulent, set aside, determined to be void or
voidable as a preference, fraudulent conveyance, impermissible set off or a
diversion of trust funds and Landlord is not compelled to surrender the amount
of Tenant's payment. The provisions of this Section 4.1 shall survive the
termination of this Guarantee, and any satisfaction and discharge of Tenant by
virtue of any payment, court order or any federal or state law.
4.2 EXPENSES. The Guarantors agree to pay all reasonable costs,
fees, commissions and expenses (including, without limitation, all reasonable
attorneys' fees and disbursements) which may be incurred by Landlord in
enforcing or attempting to enforce this Guarantee following any default on the
part of either of the Guarantors hereunder, whether the same shall be enforced
by suit or otherwise.
4.3 REMEDIES NOT EXCLUSIVE. No remedy herein conferred upon or
reserved to Landlord is intended to be exclusive of any other available remedy
given under this Guarantee or hereafter existing at law or in equity. No delay
or failure to exercise any right or power accruing upon any default, omission or
failure of performance hereunder shall impair any such right or power or shall
be construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient.
4.4 NO ORAL AMENDMENT OR TERMINATION. The liability of the
Guarantors hereunder shall be unconditional and shall not be in any manner
affected by any indulgence whatsoever granted or consented to by the holder
hereof, including, but not limited to any extension of time, renewal, waiver or
other modification. Any failure of Landlord to exercise any right hereunder
shall not be construed as a waiver of the right to exercise the same or any
other right at any time and from time to time thereafter. Landlord or any holder
may accept partial payments, even though marked "payment in full" or containing
words of similar import or other conditions, without waiving any of its rights.
No amendment, modification or waiver of any provision of this Guarantee shall be
effective, irrespective of any course of dealing, unless the same shall be in
writing and signed by Landlord, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. This Guarantee cannot be changed or terminated orally or by estoppel or
waiver or by any alleged oral modification regardless of any claimed partial
performance referable thereto.
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4.5 SEVERABILITY. The invalidity or unenforceability of any one
or more phrases, sentences, clauses or sections of this Guarantee shall not
affect the validity or enforceability of the remaining portions of this
Guarantee, or any part thereof.
4.6 JOINT AND SEVERAL LIABILITY. Notwithstanding anything to the
contrary contained herein, the representations, warranties, covenants and
agreements made by the Guarantors herein, and the liability of Guarantors
hereunder, are joint and several.
4.7 APPLICABLE LAW. This Guarantee shall be governed by and
construed in accordance with the laws of the State of New York without regard to
conflicts of laws principles.
4.8 SUCCESSORS AND ASSIGNS. This Guarantee shall be binding upon,
and be enforceable against the Guarantors and their respective heirs and legal
representatives and shall inure to the benefit of Landlord, its successors or
assigns.
4.9 HEADINGS AND CAPTIONS. The existence herein of article and
section headings or captions is for convenience only and no such headings or
captions will be used for the purposes of interpreting or construing the meaning
of any term or provision hereof.
4.10 ENTIRE AGREEMENT. This Guarantee sets forth the entire
agreement and obligations of the Guarantors to Landlord and supersedes any and
all other understandings (whether oral or written) between them.
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IN WITNESS WHEREOF, the Guarantors have executed this Guarantee as
of the date first above written.
OTEC, INC.
By: /s/
------------------------------
Name:
Title:
RBL AGENCY, LTD.
By: /s/
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Name:
Title:
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ACKNOWLEDGMENT FOR OTEC, INC.
STATE OF NEW YORK )
:
COUNTY OF NEW YORK )
On the _____ day of April, 1999, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxxxx Xxxxxxx, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
/s/
--------------------------------------------
Notary Public
ACKNOWLEDGMENT FOR RBL AGENCY, LTD.
STATE OF NEW YORK )
:
COUNTY OF NEW YORK )
On the _____ day of April, 1999, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxxxx Xxxxxxx, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
/s/
--------------------------------------------
Notary Public
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