EXHIBIT 10.11
GUARANTY
This guaranty, dated as of December 3, 1997, is given by Xxxxx Xxx, whose
principal office is located at 1304 Xxxx Xxxx Court Industry (the "Guarantor"),
to Fortune Dynamic, Inc., a California corporation, located at 00000 Xxxxxxx
Xxxxxx, Xxxx xx Xxxxxxxx, Xxxxxxxxxx (the "Landlord").
RECITALS
At the request of the Guarantor, the Landlord has entered into a lease
dated October 28, 1997 with Data Net International, Inc., a California
corporation (the "Tenant"), pursuant to which the Landlord leases to the
Tenant an office\warehouse building, consisting of approximately 21,900
square feet of space located at 000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxx,
Xxxxxxxxxx (the "Lease"); and
The Landlord would not have entered into the Lease except for the request
of the Guarantor and the execution and delivery to this guaranty; and
In consideration of the Landlord entering into the Lease with a Tenant;
The Guarantor agrees as follows:
1. GUARANTY.
The Guarantor, for himself and his legal representatives, guarantees
the prompt payment when due, or whenever payment may become due
under the terms of the Lease, all payments of rent, additional rent,
and all other charges, expenses and costs of every kind and nature,
which are or may be due now or in the future under the terms of the
Lease, any agreements or documents related to the Lease, or any
other transaction between the Landlord and the Tenant directly or
indirectly related to the Lease; and the complete timely
performance, satisfaction and observation of the terms and
conditions of the Lease, rules and regulations and related
obligations arising by reason of the Lease, required to be
performed, satisfied or observed by the Tenant.
2. CONVERGE OF GUARANTY.
This guaranty extends to any and all liability which the Tenant has
or may have to the Landlord by reason of matters occurring before
the signing of the Lease by the parties or commencement of the term
of the Lease or by matters occurring after the expiration of the
term of the Lease by reason of removal of Tenant, property,
surrender of possession or other matters. This guaranty extends to
any successor
of the Tenant, any assignee or sublessee of the Tenant, to any
extensions or renewals of the Lease, and to any term established by
reason of the holdover of the Tenant, and assignee or sublessee.
3. PERFORMANCE GUARANTY.
In the event the Tenant fails to perform, satisfy or observe the terms
and conditions of the Lease, rules and regulations, and related Lease
obligations required to be performed, satisfy or observed by the
Tenant, the Guarantor will promptly and fully perform, satisfy and
observe the obligation or obligations in place of the Tenant. The
Guarantor shall pay, reimburse and indemnify the Landlord for any and
all damages, costs, expenses, losses and other liabilities arising for
resulting from the failure of the Tenant to perform, satisfy or
observe any of the terms and conditions of the Lease, rules and
regulations and related obligations.
4. WAIVER OF NOTICES.
Without notice to or further assent form the Guarantor, the Landlord
may waive or modify any of the terms and conditions of the Lease, any
rules and regulations or related Tenant obligations; or compromise,
settle or extent the time and payment of any amount due from the
Tenant or the time or performance of any obligation of the Tenant.
These actions may be take by the Landlord without discharging or
otherwise affecting the obligations of the Guarantor.
5. LEASE SECURITY.
This guaranty shall remain in full force and effect, and the Guarantor
fully responsible, without regard to any security deposit or other
collateral for the performance of the terms and conditions of the
Lease, or the receipt, disposition, application, or release of any
security deposit or other collateral, now or hereafter held by or for
the Landlord.
6. UNCONDITIONAL OBLIGATIONS.
The liability of the Guarantor is direct, immediate, absolute,
continuing, unconditional and unlimited. The Landlord shall not be
required to pursue any remedies it may have against the Tenant or
against any security deposit or other collateral as a condition to
enforcement of this guaranty. Nor shall the Guarantor be discharged
or released by reason of the discharge and release of a Tenant for
any reason, including a discharge in bankruptcy, receivership or
other proceedings, a disaffirmation or rejection of the Lease by a
trustee, custodian, or other representative in bankruptcy, a stay or
other enforcement restriction, or any other reduction, modification,
impairment or limitations of the liability of the Tenant or
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any remedy of a Landlord. The Guarantor assumes all responsibility
for being and keeping himself informed of Tenant's financial condition
and assets, and of all other circumstances bearing upon the risk of
nonperformance by a Tenant under the Lease. The Guarantor agrees that
Landlord shall have no duty to advise the Guarantor of information
known to it regarding such circumstances or risks.
7. LIMITATIONS ON GUARANTY.
The Guarantor's liability hereunder shall terminate and Guarantor
shall have no further liability towards the Landlord on the sooner
to occur of the following events: (1) the date upon which the
Tenant's net worth exceeds 150% of the Tenant's net worth as of the
date of this guaranty, or (2) the date the Tenant, or its successor,
becomes a public company. Should any of the foregoing events occur
during the term of the Lease, and as a condition precedent to the
termination of the Guarantor's liability hereunder, the Guarantor
shall provide the Landlord documentary proof of the occurrence of
said event to the reasonable satisfaction of the Landlord.
8. SUBORDINATION OR SUBROGATION RIGHTS.
The guarantor subordinates any and all claims which the Guarantor has
or may have against the Tenant by reason of subrogation for payments
or performance under this Guaranty or claims for any other reason or
cause. The Guarantor agrees not to assert any claim which it has or
may have against the Tenant, including claims by reason of subornation
under this guaranty, until such time as the payment and other
obligations of the Tenant to the Landlord are fully satisfied and
discharged.
9. BINDING EFFECT.
This guaranty is binding upon the Guarantor, his legal
representatives and assigns, and is binding upon and shall inure it to
the benefit of the Landlord, its successors and assigns. No
assignment or delegation by the Guarantor shall release the Guarantor
of his obligations under this guaranty. The term 'Tenant' used in
this guaranty includes also the first and any successive assignee or
sublessee of the Tenant or any assignee or sublessee of the Tenant.
10. MODIFICATIONS.
This guaranty may not be modified orally, but only by a writing signed
by both the Guarantor and the Landlord. Modifications include any
waiver, change, discharge, modification, or termination.
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11. GOVERNING LAW.
This guaranty shall be deemed to be made under, and shall be governed
by, the laws of the State of California in all respects, including
matters of construction, validity, and performance.
12. INVALIDITY.
If any provision of this guaranty contravenes or is held invalid under
the laws of any jurisdiction, this guaranty shall be construed as
though it did not contain that provision, and the rights and
liabilities of the parties to this guaranty shall be construed and
enforced accordingly.
In witness whereof the Guarantor has duly signed this Guaranty on the date
stated above.
Witness: Guarantor:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxx Xxx
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Signature Xxxxx Xxx
Xxxxxx X. Xxxxxxx
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Printed Name
12/3/97
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Date
The undersigned, spouse of the Guarantor, Xxxxx Xxx, hereby consents to his
execution of the above Guaranty and to his performance of all obligations
arising thereunder.
Date: 12/3/97 /s/ Xxx Xxxx
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Xxx Xxxx
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