FOR VALUE. RECEIVED and in consideration for and as an inducement to Landlord granting, executing, delivering that certain lease of the Premises referenced in the annexed lease as Space No. at , in (the “Lease”), by , the Landlord (hereinafter called “Landlord”) to , the Tenant therein named (hereinafter called “Tenant”), and in further consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration paid by Landlord to the undersigned (the receipt and sufficiency thereof being mutually acknowledged), the undersigned does hereby absolutely and unconditionally guarantee to Landlord the full and timely payment of the rent, additional rents and other charges (hereinafter collectively called “rents”) and the full and timely performance of all other terms, covenants and conditions contained in the Lease on the part of the tenant under the Lease to be paid and/or to be performed thereunder, and if any default shall be made by the tenant under the Lease, the undersigned does hereby covenant and agree to pay to Landlord in each and every instance such sum or sums of money such tenant is or shall become liable for and/or obliged to pay under the Lease and/or fully to satisfy and perform any and all such other terms, covenants and conditions of the Lease on the part of the tenant thereunder to be paid or performed and also to pay any and all damages, expenses and attorneys’ fees including those incurred at all pre-trial, trial and appellate levels, and including attorneys’ fees in any bankruptcy proceedings, in any case whether suit be instituted or not (hereinafter collectively called “damages”) that may be suffered or incurred by Landlord in consequence of the non-payment, partial payment or late payment of said rents or the non-performance, partial performance or late performance of any such other terms, covenants and conditions of the Lease; such payments or rents to be made monthly or at such other intervals as the same shall or may become payable under the Lease, including any accelerations thereof; such performance of said other terms, covenants and conditions to be made when due under the Lease and such damages to be paid when incurred by Landlord, all without requiring any notice from Landlord or proof of notice or demand, all of which the undersigned hereby expressly waives. The undersigned hereby waives notice of the acceptance of this Guaranty and any notice to or demand upon the undersigned which Landlord might otherwise be required to give or make in connection with any matter relating to this Guaranty. This Guaranty is absolute and is not conditioned upon the genuineness, validity, regularity or enforceability of the Lease. The maintenance of any action or proceeding by Landlord to recover any sum or sums that may be or become due under the Lease or to secure the performance of any of the other terms, covenants and conditions of the Lease or to recover damages, shall not preclude Landlord from thereafter instituting and maintaining subsequent actions or proceedings for any subsequent default or defaults of the tenant under the Lease. The undersigned does hereby consent that without affecting the liability of the undersigned under this Guaranty and without notice to the undersigned, time may be given by Landlord to the tenant under the Lease for payment of rents and performance of said other terms, covenants and conditions, or any of them, and such time extended and indulgences granted, from time to time, shall not diminish or affect the obligations of the undersigned or relieve the undersigned from any liability under this Guaranty. The undersigned agrees that the tenant may be dispossessed and/or Landlord may avail itself of or exercise any or all of the rights and/or remedies against the tenant provided by law or by the Lease, and may proceed either against the tenant alone or jointly against the tenant and the undersigned or against the undersigned alone without proceeding against the tenant. The undersigned does hereby further consent to any subsequent changes, modifications and/or amendments of the Lease and any of its terms, covenants and conditions, or in the rents payable thereunder, and/or to any assignment or assignments or subleases of the Lease, and/or to any renewals or extensions thereof, all of which may be made without notice to or consent of the undersigned and without in any manner releasing or relieving the undersigned from liability under this Guaranty. The undersigned does hereby further agree that in respect of any payments made by the undersigned hereunder, the undersigned shall not have any rights based on suretyship or otherwise to stand in the place of Landlord so as to compete with Landlord as a creditor of Tenant or any co-guarantor, irrespective of any lien subordination otherwise granted by Landlord, unless and until all claims of Landlord under the Lease shall have been fully paid and satisfied. The undersigned further agrees that the bankruptcy of Tenant or the filing by or against Tenant for relief or remedy under the Federal Bankruptcy Code or any foreign, state or local laws of similar import shall have no effect on the obligations of the undersigned hereunder notwithstanding that the Lease may have been disaffirmed or otherwise impaired. This Guaranty and any of the provisions hereof cannot be modified, waived or terminated, unless in writing, signed by Landlord. All losses, damages, attorneys’ fees through all levels of proceedings, whether or not suit be instituted, and other costs and expenses of whatsoever nature which Landlord incurs in connection with or incidental to the enforcement of this Guaranty shall be payable immediately by the undersigned to Landlord. If the undersigned fails to pay any amount payable under this Guaranty when due, interest on such amount shall accrue at the highest legal rate per annum chargeable to the undersigned in the State wherein the Demised Premises are situate. The provisions of this Guaranty shall apply to and bind and inure to the benefit of the undersigned and Landlord and their respective heirs, legal representatives, successors and assigns; and if there is more than one (1) Guarantor, the liability hereunder shall be joint and several. The undersigned further represents to Landlord, as an inducement for Landlord to make the Lease, that the undersigned (or either of them, alone) owns all of the entire outstanding capital (and/or other) stock (or evidence of ownership interests) of the Tenant, that the execution and delivery of this Guaranty is not in contravention of the charter or by-laws or applicable state laws governing such Tenant (or the undersigned where the undersigned is an entity), and has been duly authorized by the Board of Directors and/or managing member, if required, its shareholders or other ownership interest holders of Tenant (and the undersigned where the undersigned is an entity). During the Term of the Lease which this Guaranty is related to, Guarantor covenants and agree that they will not invest in or build or operate a facility that is reasonably likely to have a negative impact on the performance of the Property during the Term of the Lease and that Tenant and Guarantor will not operate, invest in or build such a competitive facility unless the status of the operations at the Premises and the net operating income actually support the need for additional facilities. Guarantor covenants and agrees to focus a sufficient and appropriate amount their professional acumen and time and attention on Tenant’s activities and Tenant’s ability to service its debt and pay its Rent to Landlord on a consistent and timely basis. Upon request of Landlord (or any successor thereto), the undersigned agrees to deliver (i) a Secretary’s certification and resolution authorizing the execution and delivery of the Lease and/or, (ii) from time to time, a written estoppel statement assuring the recipient that this Guaranty remains in full force and effect and is fully enforceable in accordance with its terms, and including any other reasonable statement relating hereto as the requesting party may require. The undersigned hereby irrevocably consents and submits to the jurisdiction of any federal, state, county or municipal court sitting in the State of Colorado in respect to any action or proceeding brought therein by Landlord against the undersigned concerning any matters arising out of or in any way relating to the Lease or this Guaranty. The undersigned hereby irrevocably consents to the service upon it of process in any such action or proceeding by the mailing of such process to the undersigned at the Premises or at such other address as the undersigned may specify in a writing sent to Landlord by certified or registered mail, return receipt requested, and hereby agrees that such service shall be deemed sufficient. The undersigned agrees that any final judgment rendered against it in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The undersigned further agrees that any action or proceeding by the undersigned against Landlord in respect to any matters arising out of or in any way relating to the Lease or this Guaranty shall be brought only in the State Court having jurisdiction over the County and/or municipality or local political subdivision (as applicable) where the Property covered by the Lease is located, and that the undersigned shall not object in any proceeding to the jurisdiction and venue thereof. This Guaranty shall be governed by the internal laws of the State of Colorado without regard to conflicts of laws principles. Notwithstanding anything to the contrary contained herein, so long as there is not an existing default under the Lease or an event of default which is ongoing on the fifteenth (15th) anniversary of the Commencement Date of the Lease, this Guaranty and the obligations hereunder shall thereafter be of no further force or effect and this Guaranty shall terminate. If an event of default exists on the fifteenth (15th) anniversary of the Commencement Date of the Lease, this Guaranty shall remain in full force and effect for the remainder of the Term of the Lease. Undersigned guarantors who indicate accordingly, represent and warrant that they are married to each other as husband and wife. AS A FURTHER INDUCEMENT TO LANDLORD TO MAKE THE LEASE AND IN CONSIDERATION THEREFOR, LANDLORD AND THE UNDERSIGNED HEREBY AGREE THAT IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER LANDLORD OR THE UNDERSIGNED AGAINST THE OTHER IN RESPECT TO ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE LEASE OR THIS GUARANTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THAT LANDLORD AND THE UNDERSIGNED SHALL AND DO HEREBY WAIVE TRIAL BY JURY; AND THE PARTIES FURTHER HEREBY WAIVE THE RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE FOREGOING WAIVERS ARE IRREVOCABLE AND MUTUALLY, KNOWINGLY, WILLINGLY, INTENTIONALLY AND VOLUNTARILY MADE AFTER EACH PARTY HAS HAD THE BENEFIT OF OR OPPORTUNITY TO GAIN LEGAL ADVICE AND COUNSEL. EACH PARTY REPRESENTS, WARRANTS AND AFFIRMS TO THE OTHER THAT NO PARTY HAS IN ANY WAY AGREED, REPRESENTED OR OTHERWISE SUGGESTED OR IMPLIED THAT IT WILL NOT FULLY ENFORCE THE FOREGOING WAIVERS IN ALL INSTANCES. LANDLORD IS DEEMED TO HAVE JOINED IN THE WAIVERS OF JURY TRIAL AND RELATED PROVISIONS OF THIS CAPITALIZED PARAGRAPH BY ITS ACCEPTANCE OF THIS GUARANTY. NOTWITHSTANDING THE FOREGOING IN THE EVENT ANY PROVISION OF THIS GUARANTY IS PROHIBITED, UNENFORCEABLE OR INVALID UNDER THE LAWS OF ANY JURISDICTION, INCLUDING THOSE OF THE STATE INDICATED ABOVE, SUCH PROHIBITION, UNENFORCEABLE OR INVALID PROVISION SHALL NOT IN ANY FASHION AFFECT THE ENFORCEABILITY OR VALIDITY OF THE REMAINING PROVISIONS HEREOF. Dated ___________, 2019 [Each Witness as to both Guarantor executions] __________________________ Name: Social Sec. no. xxx-xx- __ __ __ __ _________________________ [Witness Sign & Print Above] ___________________________ Name: A▇▇▇▇ ▇▇▇▇▇ ________________________ Social Sec. no. xxx-xx- __ __ __ __ [Witness Sign & Print Above] HOME ADDRESS: FACSIMILE OR CELL NO.: HOME TELEPHONE: STATE OF ________________ ) ) ss: COUNTY OF ______________ ) The foregoing instrument was sworn to and acknowledged before me this ______ day of _______,2019, by ______ and ___, husband and wife, who are each personally known to me or who produced as identification, and who did each take an oath.
Appears in 1 contract
Sources: Lease Agreement (Power REIT)
FOR VALUE. RECEIVED and in consideration for and as an inducement to Landlord granting, executing, delivering that certain lease of the Premises referenced in the annexed lease as Space No. for the property located at L▇▇ ▇, in ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 81063 (the “Lease”), by , PW CO CanRE JAB LLC the Landlord (hereinafter called “Landlord”) to JAB Industries LTD, the Tenant therein named (hereinafter called “Tenant”), and in further consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration paid by Landlord to the undersigned (the receipt and sufficiency thereof being mutually acknowledged), the undersigned does hereby absolutely and unconditionally guarantee to Landlord the full and timely payment of the rent, additional rents and other charges (hereinafter collectively called “rents”) and the full and timely performance of all other terms, covenants and conditions contained in the Lease on the part of the tenant under the Lease to be paid and/or to be performed thereunder, and if any default shall be made by the tenant under the Lease, the undersigned does hereby covenant and agree to pay to Landlord in each and every instance such sum or sums of money such tenant is or shall become liable for and/or obliged to pay under the Lease and/or fully to satisfy and perform any and all such other terms, covenants and conditions of the Lease on the part of the tenant thereunder to be paid or performed and also to pay any and all damages, expenses and attorneys’ fees including those incurred at all pre-trial, trial and appellate levels, and including attorneys’ fees in any bankruptcy proceedings, in any case whether suit be instituted or not (hereinafter collectively called “damages”) that may be suffered or incurred by Landlord in consequence of the non-payment, partial payment or late payment of said rents or the non-performance, partial performance or late performance of any such other terms, covenants and conditions of the Lease; such payments or rents to be made monthly or at such other intervals as the same shall or may become payable under the Lease, including any accelerations thereof; such performance of said other terms, covenants and conditions to be made when due under the Lease and such damages to be paid when incurred by Landlord, all without requiring any notice from Landlord or proof of notice or demand, all of which the undersigned hereby expressly waives. The undersigned hereby waives notice of the acceptance of this Guaranty and any notice to or demand upon the undersigned which Landlord might otherwise be required to give or make in connection with any matter relating to this Guaranty. This Guaranty is absolute and is not conditioned upon the genuineness, validity, regularity or enforceability of the Lease. The maintenance of any action or proceeding by Landlord to recover any sum or sums that may be or become due under the Lease or to secure the performance of any of the other terms, covenants and conditions of the Lease or to recover damages, shall not preclude Landlord from thereafter instituting and maintaining subsequent actions or proceedings for any subsequent default or defaults of the tenant under the Lease. The undersigned does hereby consent that without affecting the liability of the undersigned under this Guaranty and without notice to the undersigned, time may be given by Landlord to the tenant under the Lease for payment of rents and performance of said other terms, covenants and conditions, or any of them, and such time extended and indulgences granted, from time to time, shall not diminish or affect the obligations of the undersigned or relieve the undersigned from any liability under this Guaranty. The undersigned agrees that the tenant may be dispossessed and/or Landlord may avail itself of or exercise any or all of the rights and/or remedies against the tenant provided by law or by the Lease, and may proceed either against the tenant alone or jointly against the tenant and the undersigned or against the undersigned alone without proceeding against the tenant. The undersigned does hereby further consent to any subsequent changes, modifications and/or amendments of the Lease and any of its terms, covenants and conditions, or in the rents payable thereunder, and/or to any assignment or assignments or subleases of the Lease, and/or to any renewals or extensions thereof, all of which may be made without notice to or consent of the undersigned and without in any manner releasing or relieving the undersigned from liability under this Guaranty. The undersigned does hereby further agree that in respect of any payments made by the undersigned hereunder, the undersigned shall not have any rights based on suretyship or otherwise to stand in the place of Landlord so as to compete with Landlord as a creditor of Tenant or any co-guarantor, irrespective of any lien subordination otherwise granted by Landlord, unless and until all claims of Landlord under the Lease shall have been fully paid and satisfied. The undersigned further agrees that the bankruptcy of Tenant or the filing by or against Tenant for relief or remedy under the Federal Bankruptcy Code or any foreign, state or local laws of similar import shall have no effect on the obligations of the undersigned hereunder notwithstanding that the Lease may have been disaffirmed or otherwise impaired. This Guaranty and any of the provisions hereof cannot be modified, waived or terminated, unless in writing, signed by Landlord. All losses, damages, attorneys’ fees through all levels of proceedings, whether or not suit be instituted, and other costs and expenses of whatsoever nature which Landlord incurs in connection with or incidental to the enforcement of this Guaranty shall be payable immediately by the undersigned to Landlord. If the undersigned fails to pay any amount payable under this Guaranty when due, interest on such amount shall accrue at the highest legal rate per annum chargeable to the undersigned in the State wherein the Demised Premises are situate. The provisions of this Guaranty shall apply to and bind and inure to the benefit of the undersigned and Landlord and their respective heirs, legal representatives, successors and assigns; and if there is more than one (1) Guarantor, the liability hereunder shall be joint and several. The undersigned further represents to Landlord, as an inducement for Landlord to make the Lease, that the undersigned (or either of them, alone) owns all of the entire outstanding capital (and/or other) stock (or evidence of ownership interests) of the Tenant, that the execution and delivery of this Guaranty is not in contravention of the charter or by-laws or applicable state laws governing such Tenant (or the undersigned where the undersigned is an entity), and has been duly authorized by the Board of Directors and/or managing member, if required, its shareholders or other ownership interest holders of Tenant (and the undersigned where the undersigned is an entity). During the Term of the Lease which this Guaranty is related to, Guarantor covenants and agree that they will not invest in or build or operate a facility that is reasonably likely to have a negative impact on the performance of the Property during the Term of the Lease and that Tenant and Guarantor will not operate, invest in or build such a competitive facility unless the status of the operations at the Premises and the net operating income actually support the need for additional facilities. Guarantor covenants and agrees to focus a sufficient and appropriate amount their professional acumen and time and attention on Tenant’s activities and Tenant’s ability to service its debt and pay its Rent to Landlord on a consistent and timely basis. Upon request of Landlord (or any successor thereto), the undersigned agrees to deliver (i) a Secretary’s certification and resolution authorizing the execution and delivery of the Lease and/or, (ii) from time to time, a written estoppel statement assuring the recipient that this Guaranty remains in full force and effect and is fully enforceable in accordance with its terms, and including any other reasonable statement relating hereto as the requesting party may require. The undersigned hereby irrevocably consents and submits to the jurisdiction of any federal, state, county or municipal court sitting in the State of Colorado in respect to any action or proceeding brought therein by Landlord against the undersigned concerning any matters arising out of or in any way relating to the Lease or this Guaranty. The undersigned hereby irrevocably consents to the service upon it of process in any such action or proceeding by the mailing of such process to the undersigned at the Premises or at such other address as the undersigned may specify in a writing sent to Landlord by certified or registered mail, return receipt requested, and hereby agrees that such service shall be deemed sufficient. The undersigned agrees that any final judgment rendered against it in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The undersigned further agrees that any action or proceeding by the undersigned against Landlord in respect to any matters arising out of or in any way relating to the Lease or this Guaranty shall be brought only in the State Court having jurisdiction over the County and/or municipality or local political subdivision (as applicable) where the Property covered by the Lease is located, and that the undersigned shall not object in any proceeding to the jurisdiction and venue thereof. This Guaranty shall be governed by the internal laws of the State of Colorado without regard to conflicts of laws principles. Notwithstanding anything to the contrary contained herein, so long as there is not an existing default under the Lease or an event of default which is ongoing on the fifteenth (15th) anniversary of the Commencement Date of the Lease, this Guaranty and the obligations hereunder shall thereafter be of no further force or effect and this Guaranty shall terminate. If an event of default exists on the fifteenth (15th) anniversary of the Commencement Date of the Lease, this Guaranty shall remain in full force and effect for the remainder of the Term of the Lease. Undersigned guarantors who indicate accordingly, represent and warrant that they are married to each other as husband and wife. AS A FURTHER INDUCEMENT TO LANDLORD TO MAKE THE LEASE AND IN CONSIDERATION THEREFOR, LANDLORD AND THE UNDERSIGNED HEREBY AGREE THAT IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER LANDLORD OR THE UNDERSIGNED AGAINST THE OTHER IN RESPECT TO ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE LEASE OR THIS GUARANTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THAT LANDLORD AND THE UNDERSIGNED SHALL AND DO HEREBY WAIVE TRIAL BY JURY; AND THE PARTIES FURTHER HEREBY WAIVE THE RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE FOREGOING WAIVERS ARE IRREVOCABLE AND MUTUALLY, KNOWINGLY, WILLINGLY, INTENTIONALLY AND VOLUNTARILY MADE AFTER EACH PARTY HAS HAD THE BENEFIT OF OR OPPORTUNITY TO GAIN LEGAL ADVICE AND COUNSEL. EACH PARTY REPRESENTS, WARRANTS AND AFFIRMS TO THE OTHER THAT NO PARTY HAS IN ANY WAY AGREED, REPRESENTED OR OTHERWISE SUGGESTED OR IMPLIED THAT IT WILL NOT FULLY ENFORCE THE FOREGOING WAIVERS IN ALL INSTANCES. LANDLORD IS DEEMED TO HAVE JOINED IN THE WAIVERS OF JURY TRIAL AND RELATED PROVISIONS OF THIS CAPITALIZED PARAGRAPH BY ITS ACCEPTANCE OF THIS GUARANTY. NOTWITHSTANDING THE FOREGOING IN THE EVENT ANY PROVISION OF THIS GUARANTY IS PROHIBITED, UNENFORCEABLE OR INVALID UNDER THE LAWS OF ANY JURISDICTION, INCLUDING THOSE OF THE STATE INDICATED ABOVE, SUCH PROHIBITION, UNENFORCEABLE OR INVALID PROVISION SHALL NOT IN ANY FASHION AFFECT THE ENFORCEABILITY OR VALIDITY OF THE REMAINING PROVISIONS HEREOF. Dated __________________, 2019 WITNESSES: [Each Witness as to both Guarantor executions] GUARANTORS: __________________________ Name: Social Sec. no. xxx-xx- __ __ __ __ _______________________________ [Witness Sign & Print Above] ___________________________ Name: A▇▇▇▇ ▇▇▇▇▇ _______________________________ [Witness Sign & Print Above] Social Sec. no. xxx-xx- __ __ __ __ [Witness Sign & Print Above] HOME ADDRESS: FACSIMILE OR CELL NO.: HOME TELEPHONE: STATE OF ________________ ) ) ss: COUNTY OF ______________ ) The foregoing instrument was sworn to and acknowledged before me this this_______ day of _______,, 2019, by ______ _and ___, husband and wife, who are each personally known to me or who produced as identification, and who did each take an oath.
Appears in 1 contract
Sources: Lease Agreement (Power REIT)
FOR VALUE. RECEIVED and in consideration for and as an inducement to Landlord granting, executing, delivering that certain lease of the Premises referenced in the annexed lease as Space No. at , in (the “Lease”), by , the Landlord (hereinafter called “Landlord”) to , the Tenant therein named (hereinafter called “Tenant”), and in further consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration paid by Landlord to the undersigned (the receipt and sufficiency thereof being mutually acknowledged), the undersigned does hereby absolutely and unconditionally guarantee to Landlord the full and timely payment of the rent, additional rents and other charges (hereinafter collectively called “rents”) and the full and timely performance of all other terms, covenants and conditions contained in the Lease on the part of the tenant under the Lease to be paid and/or to be performed thereunder, and if any default shall be made by the tenant under the Lease, the undersigned does hereby covenant and agree Borrower promises to pay to Landlord in each and every instance such sum or sums of money such tenant is or shall become liable for and/or obliged to pay under the Lease and/or fully to satisfy and perform any and all such other terms, covenants and conditions order of the Lease on the part of the tenant thereunder to be paid or performed and also to pay any and all damages, expenses and attorneys’ fees including those incurred at all pre-trial, trial and appellate levels, and including attorneys’ fees in any bankruptcy proceedings, in any case whether suit be instituted or not (hereinafter collectively called “damages”) that may be suffered or incurred by Landlord in consequence of the non-payment, partial payment or late payment of said rents or the non-performance, partial performance or late performance of any such other terms, covenants and conditions of the Lease; such payments or rents to be made monthly or at such other intervals as the same shall or may become payable under the Lease, including any accelerations thereof; such performance of said other terms, covenants and conditions to be made when due under the Lease and such damages to be paid when incurred by Landlord, all without requiring any notice from Landlord or proof of notice or demand, all of which the undersigned hereby expressly waives. The undersigned hereby waives notice of the acceptance of this Guaranty and any notice to or demand upon the undersigned which Landlord might otherwise be required to give or make in connection with any matter relating to this Guaranty. This Guaranty is absolute and is not conditioned upon the genuineness, validity, regularity or enforceability of the Lease. The maintenance of any action or proceeding by Landlord to recover any sum or sums that may be or become due under the Lease or to secure the performance of any of the other terms, covenants and conditions of the Lease or to recover damages, shall not preclude Landlord from thereafter instituting and maintaining subsequent actions or proceedings for any subsequent default or defaults of the tenant under the Lease. The undersigned does hereby consent that without affecting the liability of the undersigned under this Guaranty and without notice to the undersigned, time may be given by Landlord to the tenant under the Lease for payment of rents and performance of said other terms, covenants and conditions, or any of them, and such time extended and indulgences granted, from time to time, shall not diminish or affect the obligations of the undersigned or relieve the undersigned from any liability under this Guaranty. The undersigned agrees that the tenant may be dispossessed and/or Landlord may avail itself of or exercise any or all of the rights and/or remedies against the tenant provided by law or by the Lease, and may proceed either against the tenant alone or jointly against the tenant and the undersigned or against the undersigned alone without proceeding against the tenant. The undersigned does hereby further consent to any subsequent changes, modifications and/or amendments of the Lease and any of its terms, covenants and conditions, or in the rents payable thereunder, and/or to any assignment or assignments or subleases of the Lease, and/or to any renewals or extensions thereof, all of which may be made without notice to or consent of the undersigned and without in any manner releasing or relieving the undersigned from liability under this Guaranty. The undersigned does hereby further agree that in respect of any payments made by the undersigned hereunder, the undersigned shall not have any rights based on suretyship or otherwise to stand in the place of Landlord so as to compete with Landlord as a creditor of Tenant or any co-guarantor, irrespective of any lien subordination otherwise granted by Landlord, unless and until all claims of Landlord under the Lease shall have been fully paid and satisfied. The undersigned further agrees that the bankruptcy of Tenant or the filing by or against Tenant for relief or remedy under the Federal Bankruptcy Code or any foreign, state or local laws of similar import shall have no effect on the obligations of the undersigned hereunder notwithstanding that the Lease may have been disaffirmed or otherwise impaired. This Guaranty and any of the provisions hereof cannot be modified, waived or terminated, unless in writing, signed by Landlord. All losses, damages, attorneys’ fees through all levels of proceedings, whether or not suit be instituted, and other costs and expenses of whatsoever nature which Landlord incurs in connection with or incidental to the enforcement of this Guaranty shall be payable immediately by the undersigned to Landlord. If the undersigned fails to pay any amount payable under this Guaranty when due, interest on such amount shall accrue Bank at the highest legal rate per annum chargeable to the undersigned in the State wherein the Demised Premises are situate. The provisions of this Guaranty shall apply to and bind and inure to the benefit of the undersigned and Landlord and their respective heirsBank’s principal office at One PNC Plaza, legal representatives▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, successors and assigns; and if there is more than one (1) Guarantor▇▇▇▇▇▇▇▇▇▇, the liability hereunder shall be joint and several. The undersigned further represents to Landlord, as an inducement for Landlord to make the Lease, that the undersigned (or either of them, alone) owns all of the entire outstanding capital (and/or other) stock (or evidence of ownership interests) of the Tenant, that the execution and delivery of this Guaranty is not in contravention of the charter or by-laws or applicable state laws governing such Tenant (or the undersigned where the undersigned is an entity), and has been duly authorized by the Board of Directors and/or managing member, if required, its shareholders or other ownership interest holders of Tenant (and the undersigned where the undersigned is an entity). During the Term of the Lease which this Guaranty is related to, Guarantor covenants and agree that they will not invest in or build or operate a facility that is reasonably likely to have a negative impact on the performance of the Property during the Term of the Lease and that Tenant and Guarantor will not operate, invest in or build such a competitive facility unless the status of the operations at the Premises and the net operating income actually support the need for additional facilities. Guarantor covenants and agrees to focus a sufficient and appropriate amount their professional acumen and time and attention on Tenant’s activities and Tenant’s ability to service its debt and pay its Rent to Landlord on a consistent and timely basis. Upon request of Landlord (or any successor thereto), the undersigned agrees to deliver (i) a Secretary’s certification and resolution authorizing the execution and delivery of the Lease and/or, (ii) from time to time, a written estoppel statement assuring the recipient that this Guaranty remains in full force and effect and is fully enforceable in accordance with its terms, and including any other reasonable statement relating hereto as the requesting party may require. The undersigned hereby irrevocably consents and submits to the jurisdiction of any federal, state, county or municipal court sitting in the State of Colorado in respect to any action or proceeding brought therein by Landlord against the undersigned concerning any matters arising out of or in any way relating to the Lease or this Guaranty. The undersigned hereby irrevocably consents to the service upon it of process in any such action or proceeding by the mailing of such process to the undersigned at the Premises or at such other address as the undersigned may specify in a writing sent to Landlord by certified or registered mail, return receipt requested, and hereby agrees that such service shall be deemed sufficient. The undersigned agrees that any final judgment rendered against it in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The undersigned further agrees that any action or proceeding by the undersigned against Landlord in respect to any matters arising out of or in any way relating to the Lease or this Guaranty shall be brought only in the State Court having jurisdiction over the County and/or municipality or local political subdivision (as applicable) where the Property covered by the Lease is located, and that the undersigned shall not object in any proceeding to the jurisdiction and venue thereof. This Guaranty shall be governed by the internal laws of the State of Colorado without regard to conflicts of laws principles. Notwithstanding anything to the contrary contained herein, so long as there is not an existing default under the Lease or an event of default which is ongoing on the fifteenth (15th) anniversary of the Commencement Date of the Lease, this Guaranty and the obligations hereunder shall thereafter be of no further force or effect and this Guaranty shall terminate. If an event of default exists on the fifteenth (15th) anniversary of the Commencement Date of the Lease, this Guaranty shall remain in full force and effect for the remainder of the Term of the Lease. Undersigned guarantors who indicate accordingly, represent and warrant that they are married to each other as husband and wife. AS A FURTHER INDUCEMENT TO LANDLORD TO MAKE THE LEASE AND IN CONSIDERATION THEREFOR, LANDLORD AND THE UNDERSIGNED HEREBY AGREE THAT IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER LANDLORD OR THE UNDERSIGNED AGAINST THE OTHER IN RESPECT TO ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE LEASE OR THIS GUARANTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THAT LANDLORD AND THE UNDERSIGNED SHALL AND DO HEREBY WAIVE TRIAL BY JURY; AND THE PARTIES FURTHER HEREBY WAIVE THE RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE FOREGOING WAIVERS ARE IRREVOCABLE AND MUTUALLY, KNOWINGLY, WILLINGLY, INTENTIONALLY AND VOLUNTARILY MADE AFTER EACH PARTY HAS HAD THE BENEFIT OF OR OPPORTUNITY TO GAIN LEGAL ADVICE AND COUNSEL. EACH PARTY REPRESENTS, WARRANTS AND AFFIRMS TO THE OTHER THAT NO PARTY HAS IN ANY WAY AGREED, REPRESENTED OR OTHERWISE SUGGESTED OR IMPLIED THAT IT WILL NOT FULLY ENFORCE THE FOREGOING WAIVERS IN ALL INSTANCES. LANDLORD IS DEEMED TO HAVE JOINED IN THE WAIVERS OF JURY TRIAL AND RELATED PROVISIONS OF THIS CAPITALIZED PARAGRAPH BY ITS ACCEPTANCE OF THIS GUARANTY. NOTWITHSTANDING THE FOREGOING IN THE EVENT ANY PROVISION OF THIS GUARANTY IS PROHIBITED, UNENFORCEABLE OR INVALID UNDER THE LAWS OF ANY JURISDICTION, INCLUDING THOSE OF THE STATE INDICATED ABOVE, SUCH PROHIBITION, UNENFORCEABLE OR INVALID PROVISION SHALL NOT IN ANY FASHION AFFECT THE ENFORCEABILITY OR VALIDITY OF THE REMAINING PROVISIONS HEREOF. Dated ___________, 2019 [Each Witness as to both Guarantor executions] __________________________ Name: Social Sec. no. xxx-xx- __ __ __ __ _________________________ [Witness Sign & Print Above] ___________________________ Name: A▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ________________________ Social Secon June 30, 2012, the lesser of (i) FIFTEEN MILLION DOLLARS ($15,000,000) or (ii) the aggregate unpaid principal amount of all Revolving Credit Loans and advances made by the Bank to the Borrower pursuant to Section 2.1 of the Credit Agreement and reflected on the Loan Account maintained by the Bank pursuant to Section 2.7 of the Credit Agreement. noAll of the outstanding principal balance hereunder shall be due and payable in its entirety at maturity, whether on the Revolving Credit Termination Date, upon acceleration, or otherwise, all as more fully described in the Credit Agreement. xxx-xx- __ __ __ __ [Witness Sign & Print Above] HOME ADDRESS: FACSIMILE OR CELL NO.: HOME TELEPHONE: STATE OF ________________ ) ) ss: COUNTY OF ______________ ) The foregoing instrument was sworn to Interest on the unpaid principal balance hereof shall be due and acknowledged before me this ______ day of _______,2019payable on the dates and at the times set forth in the Credit Agreement and at maturity, by ______ and ___whether on the Revolving Credit Termination Date, husband and wifeupon acceleration, who are each personally known to me or who produced as identificationotherwise, and who did each take an oathshall be calculated and paid in accordance with the terms of the Credit Agreement. The interest rate will be adjusted, when necessary and if appropriate, in accordance with the terms of the Credit Agreement. Interest payments shall be made at the office of the Bank set forth above. This Revolving Credit Note is the Revolving Credit Note referred to in the Credit Agreement. Reference is made to the provisions in the Credit Agreement for the prepayment hereof and the acceleration of the maturity hereof. All of the terms, conditions, covenants, representations and warranties of the Credit Agreement are incorporated herein by reference as if same were more fully set forth at length herein. All capitalized terms used herein as defined terms which are not defined herein but which are defined in the Credit Agreement shall have the same meanings herein as are given to them in the Credit Agreement. Upon the occurrence of any Event of Default specified in the Credit Agreement, the principal hereof and accrued interest hereon may become forthwith due and payable, all as provided in the Credit Agreement. Demand, presentation, protest and notice of dishonor are hereby waived.
Appears in 1 contract
Sources: Credit Agreement (Universal Stainless & Alloy Products Inc)