GUARANTY OF LEASE
THIS GUARANTY is made and executed as of February 5th, 2001, from
INFOCROSSING, INC., a Delaware corporation (hereinafter referred to as
"Guarantor"), to (ii) ASI PROPERTIES, INC., its successors and assigns
(hereinafter referred to as "Landlord").
WITNESSETH:
WHEREAS, Landlord has or will enter into that certain Lease (hereinafter
referred to as the "Lease"), on or about the date hereof, whereby Landlord has
agreed to lease to AmQUEST, INC., a Georgia corporation. (hereinafter referred
to as "Tenant") certain premises (hereinafter referred to as the "Premises")
commonly known as Suites 1,2,6 and 7 in the building located at 000 Xxxx Xxxxx
Xxxxx Xxxx, Xxxxxxx, Xxxxxxx containing approximately 32,096 of Rentable Floor
Area.
WHEREAS, Guarantor desires to induce Landlord to execute and deliver the
Lease to Tenant and Landlord is willing to execute and deliver the Lease to
Tenant only if Guarantor guarantees to Landlord the prompt performance by Tenant
of all the covenants, terms, conditions and obligations to be performed by
Tenant under the Lease.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
promises hereinafter set forth, the parties hereto hereby agree as follows:
1. Guarantor hereby absolutely, unconditionally, irrevocably, jointly and
severally guarantees to Landlord (i) the prompt and complete payment by Tenant
to Landlord of the Base Rental and additional or other Rent (as defined in the
Lease) payable by Tenant to Landlord under the Lease, (ii) the prompt and
complete payment by Tenant to Landlord of all sums of money payable by Tenant to
Landlord under the Lease, (iii) the prompt and complete performance by Tenant of
all covenants, conditions, terms and obligations to be performed by Tenant under
the Lease, and (iv) the prompt and complete payment by Tenant to Landlord of all
damages, costs and expenses that, by reason of the Lease, may become payable by
Tenant to Landlord.
2. Guarantor's liability hereunder shall in no way be affected by any
indulgence, extension, or forbearance which Landlord may grant to Tenant with
respect to the payment or performance of any obligation of Tenant, or any
waiver, on the part of Landlord of any breach of the Lease by Tenant; and
Guarantor waives any requirement that Guarantor be notified of any such
indulgence, extension, forbearance or waiver, and Guarantor waives notice of
such matters and of any default by Tenant under the Lease.
3. If a default (as defined in the Lease) occurs with respect to any
obligation of Tenant under the Lease, Guarantor covenants and agrees to perform
such obligation forthwith upon demand (in the same manner if the same
constituted the direct primary obligation and liability of Guarantor),
including, without limitation, payments of all sums owing to Landlord by reason
of such default.
4. Landlord shall have the right, at any time and from time to time, to
enforce all rights and remedies available to Landlord under the Lease,
including, without limitation, agreements with Tenant modifying or in any way
changing any of the terms or provisions of the Lease, extending or renewing the
time of payment of any sum payable under the Lease, compromising or making
settlement of any obligation of Tenant under the Lease, terminating the Lease or
resuming possession of the Premises, making demand upon or instituting legal
proceedings against Tenant, granting any indulgence, extension or forbearance to
Tenant with respect to the performance of any obligation of Tenant, or waiving
any breach of the Lease by Tenant, all without notice to, or consent of,
Guarantor and without affecting the continuing validity and enforceability of
this Guaranty.
5. Provided Landlord gives Tenant any required notice as set forth in the
Lease, Landlord may make demand and/or institute legal proceedings against
Guarantor for the performance of any obligation of Tenant under the Lease
without first proceeding in any way against Tenant and without enforcing any
rights or remedies under the Lease.
6. No delay of Landlord in exercising any rights and/or powers hereunder or
in taking any action to enforce the performance of Tenant's obligations under
the Lease shall operate as a waiver as to such rights or powers or in any manner
prejudice any or all of Landlord's rights and powers hereunder against
Guarantor.
7. All claims which Guarantor may have against Tenant by reason of this
Guaranty, whether by way of subrogation to any position of Landlord or for
contribution or reimbursement, shall be subordinate to any outstanding claims
which Landlord shall then have against Tenant. Guarantor hereby releases
Landlord from all liability to Guarantor or Tenant for failing to recognize or
observe or protect any legal or equitable rights of Guarantor with respect to
Tenant, the Premises or the Lease.
8. This Guaranty may not be modified, altered or terminated except pursuant
to an instrument in writing executed by Guarantor and Landlord. No waiver of any
provision of this Guaranty shall be valid unless in writing and signed by
Landlord. A failure of Landlord to insist upon strict performance of any
obligation or covenant or Guarantor under this Guaranty in any one or more
instances shall not be construed as a waiver or relinquishment of the right to
insist upon strict performance of such obligation or covenant in the future.
9. This Guaranty is governed by and construed and enforced under the laws
of the State of Georgia. Guarantor irrevocably submits to the jurisdiction of
any state or federal court sitting in or having jurisdiction over Xxxx County,
Georgia, in any action or proceeding brought to enforce or otherwise arising out
of or relating to this Guaranty. Guarantor waives any objection to venue in such
court and waives any claim that such form is an inconvenience form.
10. This Guaranty shall be binding upon Guarantor, its successors or
assigns, and shall inure to the benefit of, and be enforceable by, Landlord, its
successors or assigns, and by any successor to the interest of Landlord under
the Lease.
11. Any notice, demand or request by Landlord, its successors or assigns,
to Guarantor shall be in writing, and shall be deemed to have been duly given or
made if
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either delivered personally to Guarantor or mailed by certified or registered
mail, addressed to Guarantor, at the following address: 0 Xxxxxxxx Xxxxxxx,
Xxxxxx, Xxx Xxxxxx 00000, and to Landlord at the following address 000 Xxxx
Xxxxx Xxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attn: Xxxxx X. Xxxxxxxxx.
Guarantor hereby appoints as its agent for the receipt of service of process
under this Guaranty, Corporation Service Company at 0000 Xxxxx Xxxxxx Xxxx.,
Xxxxxxxx, Xxxxxxx 00000. Guarantor shall pay to Landlord all costs, including
without limitation reasonable attorneys' fees, court costs and other
disbursements, incurred by Landlord in connection with enforcing any provision
of this Guaranty, whether or not any action or lawsuit is actually instituted by
Landlord.
12. To the extent permitted by law, Guarantor expressly waives and
relinquishes any and all rights and remedies of surety, including but not
limited to, any rights described in Official Code of Ga. Xxx., ' 10-7-1, et.
seq.
IN WITNESS WHEREOF, the undersigned have executed this Guaranty on the day
and year first above written.
GUARANTOR:
INFOCROSSING, INC., a Delaware
corporation
By: _______________________________
Name: ____________________________
Title: _____________________________
(Corporate Seal)
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