LEASE AGREEMENT 683: COMPREHENSIVE GUARANTY BY CORPORATE PARENT OF SUBSIDIARY TENANT FOR NEW LEASE $99.95
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this “Guaranty”), dated as of ____________________, made by SALE LEASEBACK SELLER PARENT, a __________ corporation (“ Guarantor ”), to SALE LEASEBACK BUYER, a __________ limited liability company (“ Landlord ”).
W I T N E S S E T H :
WHEREAS, Landlord, as lessor, (i) has entered into a Lease Agreement of even date herewith (“Lease”), in which Landlord leased to SALE LEASEBACK SELLER, a __________ corporation (“ Tenant ”), certain premises situated in __________, and;
WHEREAS, all of the issued and outstanding stock of Tenant is owned by Guarantor; and
WHEREAS, the execution and delivery by Guarantor of this Guaranty is a condition of, and material inducement to, Landlord to execute the Lease, and Guarantor expects to derive financial benefit from the Lease;
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt of which is hereby acknowledged by Guarantor, and intending to be legally bound, Guarantor hereby covenants and agrees as follows:
Section 1.01 Guaranteed Obligations. Guarantor hereby absolutely, unconditionally and irrevocably guarantees to, and becomes surety for, Landlord and its successors and assigns for the due, punctual, and full payment, performance, and observance of, and covenants with Landlord to duly, punctually, and fully pay and perform, the following (collectively, the “ Guaranteed Obligations ”):
(a) the full and timely payment of all Rent (as defined in the Lease) and all other amounts due or to become due to Landlord from Tenant under the Lease or any other agreement or instrument executed in connection therewith, whether now existing or hereafter arising, contracted, or incurred (collectively, the “ Monetary Obligations ”); and
(b) all covenants, agreements, terms, obligations and conditions, undertakings, and duties contained in the Lease to be observed, performed by, or imposed upon Tenant under the Lease, whether now existing or hereafter arising, contracted, or incurred (collectively, the “ Performance Obligations ”), as and when such payment, performance, or observance shall become due (whether by acceleration or otherwise) in accordance with the terms of the the Lease, which terms are incorporated herein by reference. The Guaranteed Obligations shall not be affected by either Tenant's voluntary or involuntary bankruptcy, assignment for the benefit of creditors, reorganization, or similar proceeding affecting Tenant. If for any reason any Monetary Obligation shall not be paid promptly when due, Guarantor shall, immediately upon demand, pay the same to Landlord when due under the terms of the Lease. If for any reason either Tenant shall fail to perform or observe any Performance Obligation, Guarantor shall, immediately upon demand, perform and observe the same or cause the same to be performed or observed. If, by reason of any bankruptcy, insolvency or similar laws affecting the rights of creditors, Landlord shall be prohibited from exercising any of Landlord's rights and remedies, including, but not limited to, enforcement of the terms of the Lease against Tenant, then as to Guarantor such prohibition shall be of no force and effect, and Landlord shall have the right to make demand upon, and receive payment and/or performance from, Guarantor of all Guaranteed obligations and Guarantor's obligation in this respect shall be primary and not secondary. Guarantor acknowledges and agrees that the Monetary Obligations include, without limitation, Rent and other sums accruing and/or becoming due under the Lease following the commencement by or against Tenant of any action under the United States Bankruptcy Code or other similar statute. Guarantor shall pay all Monetary Obligations to Landlord at the address and in the manner set forth in each Lease or at such other address as Landlord shall notify Guarantor of in writing.
Section 1.02 Guarantee Unconditional. The obligations of Guarantor hereunder are continuing, absolute and unconditional, irrespective of any circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety. Without limiting the generality of the foregoing, the obligations of Guarantor hereunder shall remain in full force and effect without regard to, and shall not be released, discharged, abated, impaired, or in any way affected by:
(a) any amendment, modification, extension, renewal, or supplement to the Lease or any termination of the Lease or any interest therein;
(b) any assumption by any party of Tenant's or any other party's obligations under, or Tenant's or any other party's assignment of any of its interest in, the Lease;
(c) any exercise or nonexercise of or delay in exercising any right, remedy, power or privilege under or in respect of this Guaranty or the Lease or pursuant to applicable law (even if any such right, remedy, power or privilege shall be lost thereby), including, without limitation, any so-called self-help remedies, or any waiver, consent, compromise, settlement, indulgence, or other action or inaction in respect thereof;
(d) any change in the financial condition of Tenant, the voluntary or involuntary liquidation, dissolution, sale of all or substantially all of the assets, marshalling of assets and liabilities, receivership, conservatorship, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting Landlord, either Tenant, or Guarantor or any of their assets or any impairment, modification, release or limitation of liability of Landlord, either Tenant, or Guarantor or their respective estates in bankruptcy or of any remedy for the enforcement of such liability resulting from the operation of any present or future provision of the United States Bankruptcy Code or other similar statute or from the decision of any court;
(e) any extension of time for payment or performance of the Guaranteed Obligations or any part thereof;
(f) the genuineness, invalidity or unenforceability of all or any portion or provision of the Lease;
(g) any defense that may arise by reason of the failure of Landlord to file or enforce a claim against the estate of the Tenant in any bankruptcy or other proceeding;
(h) the release or discharge of Tenant or any other person or entity from, or an accord and satisfaction which discharges, performance or observance of any of the agreements, covenants, terms or conditions contained in the Lease by operation of law or otherwise;
(i) the failure of Landlord to keep Guarantor advised of Tenant's financial condition, regardless of the existence of any duty to do so;
(j) any assignment by Landlord of all of Landlord's right, title and interest in, to and under the Lease and/or this Guaranty as collateral security for any loan;
(k) 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 Guaranteed Obligations or any or all of the obligations, covenants or agreements of Tenant under the Lease (except by payment in full of all Guaranteed Obligations) or Guarantor under this Guaranty (except by payment in full of all Guaranteed Obligations);
(l) the default or failure of Guarantor fully to perform any of its obligations set forth in this Guaranty;
(m) any actual, purported or attempted sale, assignment or other transfer by Landlord of the Lease or the Leased Premises or any part thereof or of any of its rights, interests or obligations thereunder;
(n) any merger or consolidation of Tenant into or with any other entity, or any sale, lease, transfer or other disposition of any or all of Tenant's assets or any sale, transfer or other disposition of any or all of the shares of capital stock or other securities of Tenant or any affiliate of Tenant to any other person or entity;
(o) Failure by Tenant to obtain, protect, preserve or enforce any rights in or under the the Lease or the Leased Premises or any interest therein against any party or the invalidity or unenforceability of any such rights; or
(p) any other event, action, omission or circumstances which might in any manner or to any extent impose any risk to Guarantor or which might otherwise constitute a legal or equitable release or discharge of a guarantor or surety.
all of which may be given or done without notice to, or consent of, Guarantor.
No setoff, claim, reduction or diminution of any obligation, or any defense of any kind or nature which either Tenant or Guarantor now has or hereafter may have against Landlord shall be available hereunder to Guarantor against Landlord.
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