FORM OF GUARANTY. In consideration of the agreement of 99 HIGH STREET OWNER LLC ("Landlord"), to enter into that certain Lease dated as of June 4, 2025 (the "Lease") between Landlord and enGene USA, Inc. (“Tenant”), pertaining to certain premises located at 99 High Street in Boston, Massachusetts, the undersigned ENGENE HOLDINGS INC. ("Guarantor") hereby unconditionally and irrevocably guarantees (i) the timely and punctual payment of all Rent, as defined in the Lease, and all other payments required to be paid by Tenant pursuant to the terms and conditions of the Lease, and (ii) the timely and prompt performance and observance of all other obligations, covenants, conditions, duties, and liabilities of Tenant under the Lease. Guarantor shall be directly and primarily liable to Landlord for any amount due from Tenant under the Lease, without requiring that Landlord first proceed against Tenant, join Tenant in any proceeding brought to enforce this Guaranty, or exhaust any security held by Landlord. The obligations of Guarantor include the payment to Landlord of any monies payable by Tenant under any provisions of the Lease, at law, or in equity, including, without limitation, any monies payable by virtue of the breach of any warranty, the grant of any indemnity or by virtue of any other covenant of Tenant under the Lease. Guarantor agrees that Landlord may deal with Tenant in any manner in connection with the Lease without the knowledge or consent of Guarantor and without affecting, limiting, or detracting from Guarantor's liability under this Guaranty. Without limiting the generality of the foregoing, Guarantor agrees that any extension of time, assignment of the Lease, amendment or modification to the Lease, delay or failure by Landlord in the enforcement of any right under the Lease, or compromise of the amount of any obligation or liability under the Lease made with or without the knowledge or consent of Guarantor shall not affect, limit, or detract from Guarantor's liability under this Guaranty. Guarantor's liability under this Guaranty shall not be affected, limited, or detracted from by any bankruptcy, reorganization, insolvency or similar proceeding affecting Tenant, nor by any termination or disaffirmance of the Lease or any of Tenant's obligations thereunder in connection with such proceeding. If all or any portion of Tenant's obligations under the Lease is paid or performed by Tenant, the obligations of Guarantor hereunder shall continue and remain in full force and effect to the extent that all or any part of such payment(s) or performance(s) is avoided or recovered directly or indirectly from Landlord as a preference, fraudulent transfer or otherwise. This Guaranty shall remain in full force and effect until the performance in full to Landlord's satisfaction of all obligations of Tenant under the Lease. It shall be deemed a material default by Guarantor hereunder if any proceeding shall be instituted by or against Guarantor pursuant to any of the provisions of any Act of Congress or State law relating to bankruptcy, reorganizations, arrangements, compositions or other relief from creditors. Guarantor shall give Landlord written notice regarding any such proceeding within two (2) Business Days after Guarantor first receives notice of the institution thereof. So long as guaranteed obligations remain outstanding hereunder, Guarantor shall not, without Landlord’s prior written consent, commence or join with any other person in commencing any bankruptcy or similar proceeding of or against Tenant. To the fullest extent permitted by law, Guarantor will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person to pay to Landlord or allow the claim of Landlord in respect of any interest, fees, costs, expenses or other guaranteed obligations accruing or arising after the date on which such case or proceeding is commenced. Guarantor hereby subordinates any claim or other right now existing or hereafter acquired against Tenant that arises from the performance of Guarantor's obligations under this Guaranty, including, without limitation, any rights of contribution, indemnity, subrogation, reimbursement or exoneration, to payment of all obligations under the Lease with respect to any periods when the Tenant is in default of its obligations under the Lease. Guarantor hereby agrees to indemnify Landlord and hold it harmless from and against all loss and expense, including legal fees, suffered or incurred by Landlord as a result of claims to avoid any payment received by Landlord from Tenant with respect to the obligations of Tenant under the Lease. Guarantor hereby waives presentment, protest, notice of default, demand for payment, and all other suretyship defenses whatsoever with respect to any payment guaranteed under this Guaranty, and agrees to pay unconditionally upon demand all amounts owed under the Lease. Guarantor further waives any setoff, defense or counterclaim that Tenant or Guarantor may have or claim to have against Landlord and the benefit of any statute of limitations affecting Guarantor's liability under this Guaranty. The liability of Guarantor under this Guaranty is a guaranty of payment and performance and not of collectability. If Landlord retains an attorney to enforce this Guaranty or to bring any action or any appeal in connection with this Guaranty, the Lease, or the collection of any payment under this Guaranty or the Lease, Landlord shall be entitled to recover its attorneys' fees, costs and disbursements in connection therewith, as determined by the court before which such action or appeal is heard, in addition to any other relief to which Landlord may be entitled. Landlord shall have the unrestricted right to assign this Guaranty in connection with an assignment of the landlord’s interest in the Lease without the consent of, or any other action required by, Guarantor. Each reference in this Guaranty to Landlord shall be deemed to include its successors and assigns, to whose benefit the provisions of this Guaranty shall also inure. Each reference in this Guaranty to Guarantor shall be deemed to include the successors and assigns of Guarantor, all of whom shall be bound by the provisions of this Guaranty; provided, however, notwithstanding any such assignment, the original Guarantor shall remain fully and completely liable and responsible for all of its obligations, duties, and liabilities under this Guaranty. In no event shall this Guaranty be assigned, transferred, modified or amended without the prior written consent of Landlord in each instance. Within ten (10) days after delivery of written demand therefor from Landlord, Guarantor shall execute and deliver to Landlord a statement in writing certifying that this Guaranty is unmodified and in full force and effect (or if amended or not fully in effect, an accurate statement of such matters), which statement may be conclusively relied upon by any prospective purchaser, lender, or mortgagee of the premises or property. If any provision of this Guaranty is held to be invalid or unenforceable, the validity and enforceability of the other provisions of this Guaranty shall not be affected. As an inducement to Landlord to enter into the Lease, Guarantor hereby represents and warrants that: (i) Guarantor is not, nor is it owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”) pursuant to Executive Order 13224 or any similar list or any law, order, rule or regulation or any Executive Order of the President of the United States as a terrorist, “Specially Designated National and Blocked Person” or other banned or blocked person (any such person, group, entity or nation being hereinafter referred to as a “Prohibited Person”); (ii) Guarantor is not (nor is it owned or controlled, directly or indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; (iii) from and after the effective date of the above-referenced Executive Order, Guarantor (and any person, group, or entity which Guarantor controls, directly or indirectly) has not conducted nor will conduct business nor has engaged nor will engage in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation, including without limitation any assignment of this Guaranty or the making or receiving of any contribution of funds, goods or services to or for the benefit of a Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation. In connection with the foregoing, it is expressly understood and agreed that (x) any breach by Guarantor of the foregoing representations and warranties shall be deemed a default by Guarantor hereunder and shall be covered by the default provisions of this Guaranty, and (y) the representations and warranties contained in this subsection shall be continuing in nature and shall survive the expiration or earlier termination of this Guaranty; (iv) Guarantor is duly formed and validly existing under the laws of the State of Delaware, has the capacity to be sued and does not enjoy immunity privileges; (v) this Guaranty has been duly authorized by all necessary corporate, limited liability company or other action on Guarantor’s part, has been duly executed and delivered by a duly authorized officer, and constitutes Guarantor’s valid and legally binding agreement in accordance with its terms; (vi) there is no action, suit or proceeding pending, or to the best of Guarantor’s knowledge, threatened in writing against or affecting Guarantor that is reasonably likely to materially and adversely affect the ability of Guarantor to perform its obligations with respect to this Guaranty; (vii) Guarantor is in compliance with the requirements of all applicable laws, rules, regulations, ordinances and orders applicable to Guarantor where noncompliance would affect the ability of Guarantor to perform its obligations under this Guaranty or result in a material adverse change in the business or condition, financial or otherwise, or results of operation or prospects of Guarantor; and (viii) Tenant is a wholly owned subsidiary of Guarantor. Guarantor agrees that this Guaranty shall be construed in accordance with, and governed by, the laws of the Commonwealth of Massachusetts (excluding the laws applicable to conflicts of law). Guarantor further agrees that any action or litigation to enforce this Guaranty shall properly be within the jurisdiction of the courts of such state, and hereby expressly and irrevocably submits itself to the jurisdiction of such courts. Guarantor agrees that so far as is permitted under applicable law, this consent to personal jurisdiction shall be self-operative and no further instrument or action, other than service of process in one of the manners specified in this Lease, or as otherwise permitted by law, shall be necessary in order to confer jurisdiction upon it in any such court. Guarantor hereby irrevocably and unconditionally (a) submits to personal jurisdiction in the Commonwealth of Massachusetts over any suit, action or proceeding arising out of or relating to this Guaranty, and (b) waives any and all rights under the laws of any other jurisdiction to object to jurisdiction within the Commonwealth of Massachusetts or venue in any particular forum within the Commonwealth of Massachusetts. Guarantor agrees that methods of service of process shall be as provided for under applicable law. Nothing contained herein, however, shall prevent Landlord from bringing any suit, action or proceeding or exercising any rights against Guarantor, in the Commonwealth of Massachusetts, or other jurisdiction in which Guarantor is located, all at Landlord’s election, and against any property of Guarantor, in any other state. Initiating such suit, action or proceeding or taking such action in any state, jurisdiction or country shall in no event constitute a waiver of the agreement contained herein that the laws of the Commonwealth of Massachusetts shall govern the rights and obligations of Guarantor and Landlord or the submission herein made by Guarantor to personal jurisdiction within the Commonwealth of Massachusetts. It is agreed that the failure of Landlord to insist in any one or more instances upon a strict performance or observance of any of the terms, provisions or covenants of the Lease or to exercise any right therein contained shall not be construed or deemed to be a waiver or relinquishment for the future of such term, provision, covenant or right, but the same shall continue and remain in full force and effect. Receipt by Landlord of rent with knowledge of the breach of any provision of the Lease shall not be deemed a waiver of such breach. No subletting, assignment or other transfer of the Lease, or any interest therein, shall operate to extinguish or diminish the liability of Guarantor under this Guaranty; and wherever reference is made to the liability of Tenant named in the Lease, such reference shall be deemed likewise to refer to Guarantor. All payments becoming due under this Guaranty and not paid within ten (10) Business Days after written notice from Landlord that the same is due shall bear interest from the applicable due date until received by Landlord at the Interest Rate as defined in the Lease. This Guaranty may be executed by electronic signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. Without limitation, in addition to electronically produced signatures, “electronic signature” shall include electronically scanned and transmitted versions (e.g., via PDF and/or DocuSign) of an original signature. This Guaranty may be executed in multiple counterparts (which counterparts may be executed and delivered by PDF, DocuSign, or another file sent by email) which shall together constitute a single document. Any executed counterpart of this Guaranty delivered by PDF, DocuSign or another file sent by email shall be equally effective as an original counterpart for all purposes.
Appears in 1 contract
Sources: Office Lease (enGene Holdings Inc.)
FORM OF GUARANTY. In consideration FOR VALUE RECEIVED, Republic Airways Holdings Inc., a corporation organized under the laws of the agreement of 99 HIGH STREET OWNER LLC Delaware ("Landlord"“Guarantor”), pursuant to enter into Article 14.4 of that certain Lease Purchase Agreement COM 0190-10 dated as of June 4November 3, 2025 (the "Lease") 2010 between Landlord and enGene USA, Republic Airline Inc. (“TenantBuyer”) and EMBRAER-Empresa Brasileira de Aeronáutica S.A. (“Embraer”), pertaining as the same may be amended from time to certain premises located at 99 High Street in Bostontime (the “Purchase Agreement”), Massachusetts, the undersigned ENGENE HOLDINGS INC. ("Guarantor") does hereby unconditionally and irrevocably guarantees guarantee to Embraer (i) the timely due and punctual performance and observance by Buyer of each covenant, agreement, undertaking, representation, warranty and any other obligation or condition binding upon or to be performed or observed by it under and in accordance with the terms of the Purchase Agreement, and (ii) the due and punctual payment of all Rent, each amount that Buyer is or may become obligated to pay under and in accordance with the terms of the Purchase Agreement (such payment and other obligations of Buyer being herein referred to as defined the “Obligations”) and in the Leaseevent of any nonpayment or nonperformance, and all other payments required agrees to pay or perform or cause such payment or performance to be made of such nonpayment or nonperformance. Guarantor further agrees to pay all reasonable expenses (including, without limitations all reasonable fees and disbursements of counsel) that may be paid by Tenant pursuant or incurred in enforcing any rights with respect to, or collecting, any or all of the Obligations and/or enforcing any rights with respect to, or collecting against, Guarantor under this Guaranty. The obligations of Guarantor to make any payments hereunder shall be subject to the terms and conditions of the LeasePurchase Agreement applicable to the Obligations. Capitalized terms used but not defined herein shall have the respective meanings set forth in, and (ii) the timely and prompt performance and observance of all other obligations, covenants, conditions, duties, and liabilities of Tenant under the Lease. Guarantor shall be directly construed and primarily liable to Landlord for any amount due from Tenant under interpreted in the Lease, without requiring that Landlord first proceed against Tenant, join Tenant in any proceeding brought to enforce this Guaranty, or exhaust any security held by Landlord. The obligations of Guarantor include the payment to Landlord of any monies payable by Tenant under any provisions of the Lease, at law, or in equity, including, without limitation, any monies payable by virtue of the breach of any warrantymanner described in, the grant of any indemnity or by virtue of any other covenant of Tenant under the Lease. Guarantor agrees that Landlord may deal with Tenant in any manner in connection with the Lease without the knowledge or consent of Guarantor and without affecting, limiting, or detracting from Guarantor's liability under this Guaranty. Without limiting the generality of the foregoing, Guarantor agrees that any extension of time, assignment of the Lease, amendment or modification to the Lease, delay or failure by Landlord in the enforcement of any right under the Lease, or compromise of the amount of any obligation or liability under the Lease made with or without the knowledge or consent of Guarantor shall not affect, limit, or detract from Guarantor's liability under this Guaranty. Guarantor's liability under this Guaranty shall not be affected, limited, or detracted from by any bankruptcy, reorganization, insolvency or similar proceeding affecting Tenant, nor by any termination or disaffirmance of the Lease or any of Tenant's obligations thereunder in connection with such proceeding. If all or any portion of Tenant's obligations under the Lease is paid or performed by Tenant, the obligations of Guarantor hereunder shall continue and remain in full force and effect to the extent that all or any part of such payment(s) or performance(s) is avoided or recovered directly or indirectly from Landlord as a preference, fraudulent transfer or otherwise. This Guaranty shall remain in full force and effect until the performance in full to Landlord's satisfaction of all obligations of Tenant under the Lease. It shall be deemed a material default by Guarantor hereunder if any proceeding shall be instituted by or against Guarantor pursuant to any of the provisions of any Act of Congress or State law relating to bankruptcy, reorganizations, arrangements, compositions or other relief from creditors. Guarantor shall give Landlord written notice regarding any such proceeding within two (2) Business Days after Guarantor first receives notice of the institution thereof. So long as guaranteed obligations remain outstanding hereunder, Guarantor shall not, without Landlord’s prior written consent, commence or join with any other person in commencing any bankruptcy or similar proceeding of or against Tenant. To the fullest extent permitted by law, Guarantor will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person to pay to Landlord or allow the claim of Landlord in respect of any interest, fees, costs, expenses or other guaranteed obligations accruing or arising after the date on which such case or proceeding is commenced. Guarantor hereby subordinates any claim or other right now existing or hereafter acquired against Tenant that arises from the performance of Guarantor's obligations under this Guaranty, including, without limitation, any rights of contribution, indemnity, subrogation, reimbursement or exoneration, to payment of all obligations under the Lease with respect to any periods when the Tenant is in default of its obligations under the Lease. Guarantor hereby agrees to indemnify Landlord and hold it harmless from and against all loss and expense, including legal fees, suffered or incurred by Landlord as a result of claims to avoid any payment received by Landlord from Tenant with respect to the obligations of Tenant under the LeasePurchase Agreement. Guarantor hereby waives presentment, protest, notice of default, demand for payment, and all other suretyship defenses whatsoever with respect to any payment guaranteed under acceptance of this Guaranty, and agrees that, in its capacity as a guarantor, it shall not be required to pay unconditionally upon demand all amounts owed under the Lease. Guarantor further waives any setoffconsent to, defense or counterclaim that Tenant or Guarantor may have or claim to have against Landlord and the benefit of any statute of limitations affecting Guarantor's liability under this Guaranty. The liability of Guarantor under this Guaranty is a guaranty of payment and performance and not of collectability. If Landlord retains an attorney to enforce this Guaranty or to bring receive any action notice of, any supplement to or any appeal in connection with this Guaranty, the Lease, or the collection of any payment under this Guaranty or the Lease, Landlord shall be entitled to recover its attorneys' fees, costs and disbursements in connection therewith, as determined by the court before which such action or appeal is heard, in addition to any other relief to which Landlord may be entitled. Landlord shall have the unrestricted right to assign this Guaranty in connection with an assignment of the landlord’s interest in the Lease without the consent amendment of, or any other action required by, Guarantor. Each reference in this Guaranty to Landlord shall be deemed to include its successors and assigns, to whose benefit waiver or modification of the provisions of this Guaranty shall also inure. Each reference in this Guaranty to Guarantor shall be deemed to include the successors and assigns of Guarantor, all of whom shall be bound by the provisions of this Guaranty; provided, however, notwithstanding any such assignmentterms of, the original Guarantor shall remain fully and completely liable and responsible for all of its obligations, duties, and liabilities under this GuarantyPurchase Agreement. In no event shall this Guaranty be assigned, transferred, modified or amended without the prior written consent of Landlord in each instance. Within ten (10) days after delivery of written demand therefor from Landlord, Guarantor shall execute and deliver to Landlord a statement in writing certifying that this This Guaranty is unmodified and in full force and effect (or if amended or not fully in effect, an accurate statement of such matters), which statement may be conclusively relied upon by any prospective purchaser, lender, or mortgagee of the premises or property. If any provision of this Guaranty is held being furnished to be invalid or unenforceable, the validity and enforceability of the other provisions of this Guaranty shall not be affected. As an inducement to Landlord induce Embraer to enter into the Lease, Purchase Agreement. Guarantor hereby represents and warrants that: (i) Guarantor is not, nor is it owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the Office of Foreign Assets Control as of the United States Department of the Treasury (“OFAC”) pursuant to Executive Order 13224 or any similar list or any law, order, rule or regulation or any Executive Order of the President of the United States as a terrorist, “Specially Designated National and Blocked Person” or other banned or blocked person (any such person, group, entity or nation being hereinafter referred to as a “Prohibited Person”); (ii) Guarantor is not (nor is it owned or controlled, directly or indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; (iii) from and after the effective date of the above-referenced Executive Order, Guarantor (and any person, group, or entity which Guarantor controls, directly or indirectly) has not conducted nor will conduct business nor has engaged nor will engage in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation, including without limitation any assignment of this Guaranty or the making or receiving of any contribution of funds, goods or services to or for the benefit of a Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation. In connection with the foregoing, it is expressly understood and agreed that (x) any breach by Guarantor of the foregoing representations and warranties shall be deemed a default by Guarantor hereunder and shall be covered by the default provisions of this Guaranty, and (y) the representations and warranties contained in this subsection shall be continuing in nature and shall survive the expiration or earlier termination of this Guaranty; (iv) Guarantor is duly formed and validly existing under the laws of the State of Delaware, has the capacity to be sued and does not enjoy immunity privileges; (v) this Guaranty has been duly authorized by all necessary corporate, limited liability company or other action on Guarantor’s part, has been duly executed and delivered by a duly authorized officer, and constitutes Guarantor’s valid and legally binding agreement in accordance with its terms; (vi) there is no action, suit or proceeding pending, or to the best of Guarantor’s knowledge, threatened in writing against or affecting Guarantor that is reasonably likely to materially and adversely affect the ability of Guarantor to perform its obligations with respect to this Guaranty; (vii) Guarantor is in compliance with the requirements of all applicable laws, rules, regulations, ordinances and orders applicable to Guarantor where noncompliance would affect the ability of Guarantor to perform its obligations under this Guaranty or result in a material adverse change in the business or condition, financial or otherwise, or results of operation or prospects of Guarantor; and (viii) Tenant is a wholly owned subsidiary of Guarantor. Guarantor agrees that this Guaranty shall be construed in accordance with, and governed by, the laws of the Commonwealth of Massachusetts (excluding the laws applicable to conflicts of law). Guarantor further agrees that any action or litigation to enforce this Guaranty shall properly be within the jurisdiction of the courts of such state, and hereby expressly and irrevocably submits itself to the jurisdiction of such courts. Guarantor agrees that so far as is permitted under applicable law, this consent to personal jurisdiction shall be self-operative and no further instrument or action, other than service of process in one of the manners specified in this Lease, or as otherwise permitted by law, shall be necessary in order to confer jurisdiction upon it in any such court. Guarantor hereby irrevocably and unconditionally (a) submits to personal jurisdiction in the Commonwealth of Massachusetts over any suit, action or proceeding arising out of or relating to this Guaranty, and (b) waives any and all rights under the laws of any other jurisdiction to object to jurisdiction within the Commonwealth of Massachusetts or venue in any particular forum within the Commonwealth of Massachusetts. Guarantor agrees that methods of service of process shall be as provided for under applicable law. Nothing contained herein, however, shall prevent Landlord from bringing any suit, action or proceeding or exercising any rights against Guarantor, in the Commonwealth of Massachusetts, or other jurisdiction in which Guarantor is located, all at Landlord’s election, and against any property of Guarantor, in any other state. Initiating such suit, action or proceeding or taking such action in any state, jurisdiction or country shall in no event constitute a waiver of the agreement contained herein that the laws of the Commonwealth of Massachusetts shall govern the rights and obligations of Guarantor and Landlord or the submission herein made by Guarantor to personal jurisdiction within the Commonwealth of Massachusetts. It is agreed that the failure of Landlord to insist in any one or more instances upon a strict performance or observance of any of the terms, provisions or covenants of the Lease or to exercise any right therein contained shall not be construed or deemed to be a waiver or relinquishment for the future of such term, provision, covenant or right, but the same shall continue and remain in full force and effect. Receipt by Landlord of rent with knowledge of the breach of any provision of the Lease shall not be deemed a waiver of such breach. No subletting, assignment or other transfer of the Lease, or any interest therein, shall operate to extinguish or diminish the liability of Guarantor under this Guaranty; and wherever reference is made to the liability of Tenant named in the Lease, such reference shall be deemed likewise to refer to Guarantor. All payments becoming due under this Guaranty and not paid within ten (10) Business Days after written notice from Landlord that the same is due shall bear interest from the applicable due date until received by Landlord at the Interest Rate as defined in the Lease. This Guaranty may be executed by electronic signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. Without limitation, in addition to electronically produced signatures, “electronic signature” shall include electronically scanned and transmitted versions (e.g., via PDF and/or DocuSign) of an original signature. This Guaranty may be executed in multiple counterparts (which counterparts may be executed and delivered by PDF, DocuSign, or another file sent by email) which shall together constitute a single document. Any executed counterpart of this Guaranty delivered by PDF, DocuSign or another file sent by email shall be equally effective as an original counterpart for all purposes.hereof:
Appears in 1 contract
FORM OF GUARANTY. In FOR VALUE RECEIVED, and in consideration of the agreement of 99 HIGH STREET OWNER for, and as an inducement to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, LLC ("the “Landlord"), ”) to enter into make that certain Lease lease (the “Lease”) dated as of June 4October , 2025 (the "Lease") between Landlord and enGene USA, Inc. 2010 with SILVER BRIDGE ADVISORS LLC (“Tenant”), pertaining to certain premises located at 99 High Street in Bostonthe undersigned, Massachusetts▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ AND ▇▇▇▇ LLP (“Guarantor”), a Delaware limited liability partnership with an address of ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, unconditionally guarantees the undersigned ENGENE HOLDINGS INC. ("Guarantor") hereby unconditionally and irrevocably guarantees (i) the timely and punctual payment of all Rent, as defined in the Lease, and all other payments required to be paid by Tenant pursuant to the terms and conditions of the Lease, and (ii) the timely and prompt full performance and observance of all other obligations, the covenants, conditions, duties, conditions and liabilities of agreements therein provided to be performed and observed by Tenant under the LeaseLease(collectively, the “Guaranteed Obligations”). Guarantor expressly agrees that the validity of this agreement and the obligations of Guarantor hereunder shall in no wise be directly and primarily liable terminated, affected or impaired by reason of the granting by Landlord of any indulgences to Tenant or by reason of the assertion by Landlord against Tenant of any of the rights or remedies reserved to Landlord for pursuant to the provisions of the Lease or by the relief of Tenant from any amount due from Tenant of Tenant’s obligations under the LeaseLease by operation of law or otherwise (including, but without requiring that Landlord first proceed against Tenantlimitation, join Tenant the rejection of the Lease in any proceeding brought to enforce this Guaranty, or exhaust any security held by Landlordconnection with proceedings under the bankruptcy laws now Or hereafter enacted); Guarantor hereby waiving all suretyship defenses. The obligations of Guarantor include the payment to Landlord of any monies payable by Tenant under any provisions of the Lease, at law, or in equity, including, without limitation, any monies payable by virtue of the breach of any warranty, the grant of any indemnity or by virtue of any other covenant of Tenant under the Lease. Guarantor further covenants and agrees that Landlord may deal with Tenant this Guaranty shall remain and continue in full force and effect as to any manner in connection with the Lease without the knowledge renewal, modification or consent of Guarantor and without affecting, limiting, or detracting from Guarantor's liability under this Guaranty. Without limiting the generality of the foregoing, Guarantor agrees that any extension of time, assignment of the Lease, whether or not Guarantor shall have received any notice of or consented to such renewal, modification or extension; provided, however, Guarantor will not be obligated with respect to any additional liabilities or obligations imposed by any amendment of the Lease which is entered into without its consent, to the extent such amendment increases the Rent payable under the Lease or modification materially increases the obligations or liabilities of Tenant under the Lease (excepting amendments confirming or effectuating the exercise by Tenant of the extension option pursuant to Section 2.3 of the Lease, delay or failure by Landlord in and/or the enforcement exercise of any right under the rights of first offer pursuant to Section 2.4 of the Lease, or compromise of the amount of any obligation or liability under the Lease made with or without the knowledge or consent of ). Guarantor shall not affect, limit, or detract from Guarantor's liability under this Guaranty. Guarantor's further agrees that its liability under this Guaranty shall be primary (and that the heading of this instrument and the use of the word “Guaranty(s)” shall not be affectedinterpreted to limit the aforesaid primary obligations of Guarantor), limitedand that in any right of action which shall accrue to Landlord under the Lease, or detracted from by Landlord may, at its option, proceed against Guarantor, any bankruptcyother guarantor, reorganization, insolvency or similar proceeding affecting and Tenant, nor by jointly or severally, and may proceed against Guarantor without having commenced any termination action against or disaffirmance having obtained any judgment against Tenant or any other guarantor; provided, however, Landlord shall provide Guarantor with notice of the Lease breach or any default by Tenant and Guarantor shall have the opportunity to cure such breach or default within the applicable period of Tenant's obligations thereunder in connection with such proceeding. If all or any portion of Tenant's obligations under the Lease is paid or performed by Tenantgrace, the obligations of Guarantor hereunder shall continue and remain in full force and effect if any, offered to the extent that all or any part of such payment(s) or performance(s) is avoided or recovered directly or indirectly from Landlord as a preference, fraudulent transfer or otherwise. This Guaranty shall remain in full force and effect until the performance in full to Landlord's satisfaction of all obligations of Tenant under the Lease. It shall be deemed a material default by Guarantor hereunder if agrees that, while this Guaranty remains in effect and while any proceeding shall be instituted by or against Guarantor pursuant to any of the provisions of any Act of Congress or State law relating to bankruptcy, reorganizations, arrangements, compositions or other relief from creditors. Guarantor shall give Landlord written notice regarding any such proceeding within two (2) Business Days after Guarantor first receives notice of the institution thereof. So long as guaranteed obligations remain outstanding hereunderand unpaid, Guarantor shall notrefrain from exercising any and all rights Guarantor may have (whether arising directly or indirectly, without Landlord’s prior written consent, commence by operation of law or join with any other person in commencing any bankruptcy by contract or similar proceeding of or against Tenant. To the fullest extent permitted by law, Guarantor will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person otherwise) to pay to Landlord or allow the claim of Landlord in respect of any interest, fees, costs, expenses or other guaranteed obligations accruing or arising after the date on which such case or proceeding is commenced. Guarantor hereby subordinates assert any claim or other right now existing or hereafter acquired against Tenant that arises from the performance on account of Guarantor's obligations payments made under this Guaranty, including, without limitation, any and all rights of or claim for subrogation, contribution, reimbursement, exoneration and indemnity, subrogation, reimbursement or exoneration, to payment of all obligations under the Lease with respect and provided that any such claims by Guarantor against Tenant shall be subordinate to any periods when the Tenant is in default and all claims of its obligations under the Lease. Guarantor hereby agrees to indemnify Landlord and hold it harmless from and against all loss and expense, including legal fees, suffered or incurred by Landlord as a result of claims to avoid any payment received by Landlord from Tenant with respect to the obligations of Tenant under the Lease. Guarantor hereby waives presentment, protest, notice of default, demand for paymentTenant, and all further waives any benefit of and any right to participate in any security deposit or other suretyship defenses whatsoever with collateral which may be held by Landlord; and Guarantor will not claim any set-off or counterclaim against Tenant in respect of any liability Guarantor may have to any payment guaranteed under this Guaranty, and agrees to pay unconditionally upon demand all amounts owed under the LeaseTenant. Guarantor further waives any setoff, defense or counterclaim that Tenant or Guarantor may have or claim represents to have against Landlord and the benefit of any statute of limitations affecting Guarantor's liability under this Guaranty. The liability of Guarantor under this Guaranty is a guaranty of payment and performance and not of collectability. If Landlord retains as an attorney inducement for it to enforce this Guaranty or to bring any action or any appeal in connection with this Guaranty, make the Lease, or the collection of any payment under this Guaranty or the Lease, Landlord shall be entitled to recover its attorneys' fees, costs and disbursements in connection therewith, that as determined by the court before which such action or appeal is heard, in addition to any other relief to which Landlord may be entitled. Landlord shall have the unrestricted right to assign this Guaranty in connection with an assignment of the landlord’s interest in the Lease without the consent of, or any other action required by, Guarantor. Each reference in this Guaranty to Landlord shall be deemed to include its successors and assigns, to whose benefit the provisions of this Guaranty shall also inure. Each reference in this Guaranty to Guarantor shall be deemed to include the successors and assigns of Guarantor, all of whom shall be bound by the provisions of this Guaranty; provided, however, notwithstanding any such assignment, the original Guarantor shall remain fully and completely liable and responsible for all of its obligations, duties, and liabilities under this Guaranty. In no event shall this Guaranty be assigned, transferred, modified or amended without the prior written consent of Landlord in each instance. Within ten (10) days after delivery of written demand therefor from Landlord, Guarantor shall execute and deliver to Landlord a statement in writing certifying that this Guaranty is unmodified and in full force and effect (or if amended or not fully in effect, an accurate statement of such matters), which statement may be conclusively relied upon by any prospective purchaser, lender, or mortgagee of the premises or property. If any provision of this Guaranty is held to be invalid or unenforceable, the validity and enforceability of the other provisions of this Guaranty shall not be affected. As an inducement to Landlord to enter into the Lease, Guarantor hereby represents and warrants that: (i) Guarantor is not, nor is it owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”) pursuant to Executive Order 13224 or any similar list or any law, order, rule or regulation or any Executive Order of the President of the United States as a terrorist, “Specially Designated National and Blocked Person” or other banned or blocked person (any such person, group, entity or nation being hereinafter referred to as a “Prohibited Person”); (ii) Guarantor is not (nor is it owned or controlled, directly or indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; (iii) from and after the effective date of the above-referenced Executive Order, Guarantor (and any person, group, or entity which Guarantor controls, directly or indirectly) has not conducted nor will conduct business nor has engaged nor will engage in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation, including without limitation any assignment of this Guaranty or the making or receiving of any contribution of funds, goods or services to or for the benefit of a Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation. In connection with the foregoing, it is expressly understood and agreed that (x) any breach by Guarantor of the foregoing representations and warranties shall be deemed a default by Guarantor hereunder and shall be covered by the default provisions of this Guaranty, and (y) the representations and warranties contained in this subsection shall be continuing in nature and shall survive the expiration or earlier termination of this Guaranty; (iv) Guarantor is duly formed and validly existing under the laws owns all of the State entire outstanding membership interests of Delaware, has the capacity to be sued and does not enjoy immunity privileges; (v) this Guaranty has been duly authorized by all necessary corporate, limited liability company or other action on Guarantor’s part, has been duly executed and delivered by a duly authorized officer, and constitutes Guarantor’s valid and legally binding agreement in accordance with its terms; (vi) there is no action, suit or proceeding pending, or to the best of Guarantor’s knowledge, threatened in writing against or affecting Guarantor that is reasonably likely to materially and adversely affect the ability of Guarantor to perform its obligations with respect to this Guaranty; (vii) Guarantor is in compliance with the requirements of all applicable laws, rules, regulations, ordinances and orders applicable to Guarantor where noncompliance would affect the ability of Guarantor to perform its obligations under this Guaranty or result in a material adverse change in the business or condition, financial or otherwise, or results of operation or prospects of Guarantor; and (viii) Tenant is a wholly owned subsidiary of Guarantor. Guarantor agrees that this Guaranty shall be construed in accordance with, and governed by, the laws of the Commonwealth of Massachusetts (excluding the laws applicable to conflicts of law). Guarantor further agrees that any action or litigation to enforce this Guaranty shall properly be within the jurisdiction of the courts of such state, and hereby expressly and irrevocably submits itself to the jurisdiction of such courts. Guarantor agrees that so far as is permitted under applicable law, this consent to personal jurisdiction shall be self-operative and no further instrument or action, other than service of process in one of the manners specified in this Lease, or as otherwise permitted by law, shall be necessary in order to confer jurisdiction upon it in any such court. Guarantor hereby irrevocably and unconditionally (a) submits to personal jurisdiction in the Commonwealth of Massachusetts over any suit, action or proceeding arising out of or relating to this Guaranty, and (b) waives any and all rights under the laws of any other jurisdiction to object to jurisdiction within the Commonwealth of Massachusetts or venue in any particular forum within the Commonwealth of Massachusetts. Guarantor agrees that methods of service of process shall be as provided for under applicable law. Nothing contained herein, however, shall prevent Landlord from bringing any suit, action or proceeding or exercising any rights against Guarantor, in the Commonwealth of Massachusetts, or other jurisdiction in which Guarantor is located, all at Landlord’s election, and against any property of Guarantor, in any other state. Initiating such suit, action or proceeding or taking such action in any state, jurisdiction or country shall in no event constitute a waiver of the agreement contained herein that the laws of the Commonwealth of Massachusetts shall govern the rights and obligations of Guarantor and Landlord or the submission herein made by Guarantor to personal jurisdiction within the Commonwealth of MassachusettsTenant. It is agreed that the failure of Landlord to insist in any one or more instances upon a strict performance or observance of any of the terms, provisions or covenants of the Lease or to exercise any right therein contained shall not be construed or deemed to be a waiver or relinquishment for the future of such term, provision, covenant or right, but the same shall continue and remain in full force and effect. Receipt by Landlord of rent with knowledge of the breach of any provision of the Lease shall not be deemed a waiver of such breach. No subletting, assignment or other transfer of the Lease, or any interest therein, shall operate to extinguish or diminish the liability of Guarantor under this Guaranty; and wherever reference is made to the liability of Tenant named in the Lease, such reference shall be deemed likewise to refer to Guarantor. All payments becoming due under this Guaranty and not paid within ten (10) Business Days days after written notice from Landlord that the same is due shall bear interest from the applicable due date until received by Landlord at the Interest Rate as defined in the Lease. This Guaranty may be executed by electronic signatureshall terminate upon the first day that both of the following conditions are satisfied: (a) the Lease shall have terminated, which and (b) no Guaranteed Obligations shall be considered as an original signature for all purposes outstanding and/or unpaid; provided, however, that if and to the extent that duties, liabilities and/or obligations of the Tenant under the Lease survive the expiration or earlier termination of the Lease, then this Guaranty shall have the same remain in full force and effect as an original signatureunless and until such duties, liabilities, and/or obligations expire by their terms or are satisfied in full. Without limitationIt is further agreed that all of the terms and provisions hereof shall inure to the benefit of the heirs, in addition to electronically produced signaturesexecutors, “electronic signature” shall include electronically scanned administrators and transmitted versions (e.g.assigns of Landlord, via PDF and/or DocuSign) of an original signature. This Guaranty may be executed in multiple counterparts (which counterparts may be executed and delivered by PDF, DocuSign, or another file sent by email) which shall together constitute a single document. Any executed counterpart of this Guaranty delivered by PDF, DocuSign or another file sent by email shall be equally effective as an original counterpart for all purposesbinding upon the heirs, successors and assigns of Guarantor.
Appears in 1 contract
Sources: Sublease (Tokai Pharmaceuticals Inc)
FORM OF GUARANTY. In consideration The Guaranty to be endorsed on the Securities shall be in substantially the form set forth below: For value received, AstraZeneca PLC, an English public limited company (the “Guarantor,” which term includes any Person as a successor Guarantor under the Indenture referred to in the Security upon which this Guaranty is endorsed), hereby fully and unconditionally guarantees to the Holder of the agreement Security upon which this Guaranty is endorsed and to the Trustee on behalf of 99 HIGH STREET OWNER LLC ("Landlord"), to enter into that certain Lease dated as of June 4, 2025 (each such Holder the "Lease") between Landlord and enGene USA, Inc. (“Tenant”), pertaining to certain premises located at 99 High Street in Boston, Massachusetts, the undersigned ENGENE HOLDINGS INC. ("Guarantor") hereby unconditionally and irrevocably guarantees (i) the timely due and punctual payment of all Rentthe principal of, interest on and any additional amounts payable in respect of such Security and the due and punctual payment of the sinking fund or analogous payments referred to therein, if any, when and as defined in the Leasesame shall become due and payable, and all other payments required to be paid whether on the stated maturity date, by Tenant pursuant declaration of acceleration, call for redemption or otherwise, according to the terms thereof and conditions of the LeaseIndenture referred to therein. In case of the failure of AstraZeneca Finance LLC, a limited liability company organized under the laws of the State of Delaware (the “Issuer,” which term includes any successor Person under such Indenture), to punctually make any such payment of principal, interest or additional amounts or any such sinking fund or analogous payment, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether on the stated maturity date or by declaration of acceleration, call for redemption or otherwise, and (ii) as if such payment were made by the timely Issuer. The indebtedness evidenced by this Guaranty ranks equally and prompt performance and observance of pari passu with all other obligationsunsecured and unsubordinated indebtedness of the Guarantor. The Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional, covenants, conditions, dutiesirrespective of, and liabilities shall be unaffected by, any invalidity, irregularity or unenforceability of Tenant such Security or such Indenture, any failure to enforce the provisions of such Security or such Indenture, or any waiver, modification or indulgence granted to the Issuer with respect thereto, by the Holder of such Security or the Trustee or any other circumstance that may otherwise constitute a legal or equitable discharge of a guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of a merger or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund or analogous payment required under such Security and all demands whatsoever, and covenants that this Guaranty will not be discharged except by payment in full of the Leaseprincipal of, interest on and additional amounts payable in respect of such Security. This Guaranty is a guarantee of payment and not of collection. The Guarantor shall be directly and primarily liable subrogated to Landlord for any amount due from Tenant under the Lease, without requiring that Landlord first proceed against Tenant, join Tenant in any proceeding brought to enforce this Guaranty, or exhaust any security held by Landlord. The obligations of Guarantor include the payment to Landlord of any monies payable by Tenant under any provisions all rights of the Lease, at law, or in equity, including, without limitation, any monies payable by virtue of the breach of any warranty, the grant of any indemnity or by virtue of any other covenant of Tenant under the Lease. Guarantor agrees that Landlord may deal with Tenant in any manner in connection with the Lease without the knowledge or consent of Guarantor and without affecting, limiting, or detracting from Guarantor's liability under this Guaranty. Without limiting the generality of the foregoing, Guarantor agrees that any extension of time, assignment of the Lease, amendment or modification to the Lease, delay or failure by Landlord in the enforcement of any right under the Lease, or compromise of the amount of any obligation or liability under the Lease made with or without the knowledge or consent of Guarantor shall not affect, limit, or detract from Guarantor's liability under this Guaranty. Guarantor's liability under this Guaranty shall not be affected, limited, or detracted from by any bankruptcy, reorganization, insolvency or similar proceeding affecting Tenant, nor by any termination or disaffirmance of the Lease or any of Tenant's obligations thereunder in connection with such proceeding. If all or any portion of Tenant's obligations under the Lease is paid or performed by Tenant, the obligations of Guarantor hereunder shall continue and remain in full force and effect to the extent that all or any part Holder of such payment(s) or performance(s) is avoided or recovered directly or indirectly from Landlord as a preference, fraudulent transfer or otherwise. This Guaranty shall remain in full force Security and effect until the performance in full to Landlord's satisfaction of all obligations of Tenant under Trustee against the Lease. It shall be deemed a material default by Guarantor hereunder if any proceeding shall be instituted by or against Guarantor pursuant to any of the provisions of any Act of Congress or State law relating to bankruptcy, reorganizations, arrangements, compositions or other relief from creditors. Guarantor shall give Landlord written notice regarding any such proceeding within two (2) Business Days after Guarantor first receives notice of the institution thereof. So long as guaranteed obligations remain outstanding hereunder, Guarantor shall not, without Landlord’s prior written consent, commence or join with any other person in commencing any bankruptcy or similar proceeding of or against Tenant. To the fullest extent permitted by law, Guarantor will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person to pay to Landlord or allow the claim of Landlord Issuer in respect of any interest, fees, costs, expenses or other guaranteed obligations accruing or arising after the date on which amounts paid to such case or proceeding is commenced. Guarantor hereby subordinates any claim or other right now existing or hereafter acquired against Tenant that arises from the performance of Guarantor's obligations under this Guaranty, including, without limitation, any rights of contribution, indemnity, subrogation, reimbursement or exoneration, to payment of all obligations under the Lease with respect to any periods when the Tenant is in default of its obligations under the Lease. Guarantor hereby agrees to indemnify Landlord and hold it harmless from and against all loss and expense, including legal fees, suffered or incurred by Landlord as a result of claims to avoid any payment received by Landlord from Tenant with respect to the obligations of Tenant under the Lease. Guarantor hereby waives presentment, protest, notice of default, demand for payment, and all other suretyship defenses whatsoever with respect to any payment guaranteed under this Guaranty, and agrees to pay unconditionally upon demand all amounts owed under the Lease. Guarantor further waives any setoff, defense or counterclaim that Tenant or Guarantor may have or claim to have against Landlord and the benefit of any statute of limitations affecting Guarantor's liability under this Guaranty. The liability of Guarantor under this Guaranty is a guaranty of payment and performance and not of collectability. If Landlord retains an attorney to enforce this Guaranty or to bring any action or any appeal in connection with this Guaranty, the Lease, or the collection of any payment under this Guaranty or the Lease, Landlord shall be entitled to recover its attorneys' fees, costs and disbursements in connection therewith, as determined Holder by the court before which such action or appeal is heard, in addition Guarantor pursuant to any other relief to which Landlord may be entitled. Landlord shall have the unrestricted right to assign this Guaranty in connection with an assignment of the landlord’s interest in the Lease without the consent of, or any other action required by, Guarantor. Each reference in this Guaranty to Landlord shall be deemed to include its successors and assigns, to whose benefit the provisions of this Guaranty shall also inure. Each reference in this Guaranty to Guarantor shall be deemed to include the successors and assigns of Guarantor, all of whom shall be bound by the provisions of this Guaranty; provided, however, notwithstanding that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon such assignmentright of subrogation until the principal of, interest on and additional amounts payable in respect of all Securities of the same series issued under such Indenture shall have been paid in full. No reference herein to such Indenture and no provision of such Indenture shall alter or impair the guarantees of the Guarantor, which are absolute and unconditional, of the due and punctual payment of the principal of, interest on and additional amounts payable in respect of, and any sinking fund or analogous payments with respect to, the original Guarantor shall remain fully and completely liable and responsible for all of its obligations, duties, and liabilities under this Guaranty. In no event shall this Guaranty be assigned, transferred, modified or amended without the prior written consent of Landlord in each instance. Within ten (10) days after delivery of written demand therefor from Landlord, Guarantor shall execute and deliver to Landlord a statement in writing certifying that Security upon which this Guaranty is unmodified and in full force and effect (or if amended or not fully in effect, an accurate statement of such matters), which statement may be conclusively relied upon by any prospective purchaser, lender, or mortgagee of the premises or propertyendorsed. If any provision of this Guaranty is held to be invalid or unenforceable, the validity and enforceability of the other provisions of this This Guaranty shall not be affected. As an inducement to Landlord to enter into valid or obligatory for any purpose until the Lease, Guarantor hereby represents and warrants that: (i) Guarantor is not, nor is it owned certificate of authentication of such Security shall have been executed by manual or controlled directly pdf or indirectly by, any person, group, entity or nation named on any list issued by the Office of Foreign Assets Control other electronic image scan signature of the United States Department of the Treasury Trustee created on an electronic platform (“OFAC”such as DocuSign) pursuant to Executive Order 13224 or any similar list or any law, order, rule or regulation or any Executive Order of the President of the United States by digital signing (such as a terrorist, “Specially Designated National and Blocked Person” or other banned or blocked person (any such person, group, entity or nation being hereinafter referred to as a “Prohibited Person”); (iiAdobe Sign) Guarantor is not (nor is it owned or controlled, directly or indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; (iii) from and after the effective date of the above-referenced Executive Order, Guarantor (and any person, group, or entity which Guarantor controls, directly or indirectly) has not conducted nor will conduct business nor has engaged nor will engage Trustee under such Indenture. All terms used in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation, including without limitation any assignment of this Guaranty or that are defined in such Indenture shall have the making or receiving of any contribution of funds, goods or services meanings assigned to or for the benefit of a Prohibited Person them in violation of the U.S. Patriot Act or any OFAC rule or regulationsuch Indenture. In connection with the foregoing, it is expressly understood and agreed that (x) any breach by Guarantor of the foregoing representations and warranties This Guaranty shall be deemed a default governed by Guarantor hereunder and shall be covered by the default provisions of this Guaranty, and (y) the representations and warranties contained construed in this subsection shall be continuing in nature and shall survive the expiration or earlier termination of this Guaranty; (iv) Guarantor is duly formed and validly existing under accordance with the laws of the State of Delaware, has the capacity to be sued and does not enjoy immunity privileges; (v) this Guaranty has been duly authorized by all necessary corporate, limited liability company or other action on Guarantor’s part, has been duly executed and delivered by a duly authorized officer, and constitutes Guarantor’s valid and legally binding agreement in accordance with its terms; (vi) there is no action, suit or proceeding pending, or to the best of Guarantor’s knowledge, threatened in writing against or affecting Guarantor that is reasonably likely to materially and adversely affect the ability of Guarantor to perform its obligations with respect to this Guaranty; (vii) Guarantor is in compliance with the requirements of all applicable laws, rules, regulations, ordinances and orders applicable to Guarantor where noncompliance would affect the ability of Guarantor to perform its obligations under this Guaranty or result in a material adverse change in the business or condition, financial or otherwise, or results of operation or prospects of Guarantor; and (viii) Tenant is a wholly owned subsidiary of Guarantor. Guarantor agrees that this Guaranty shall be construed in accordance with, and governed by, the laws of the Commonwealth of Massachusetts (excluding the laws applicable to conflicts of law). Guarantor further agrees that any action or litigation to enforce this Guaranty shall properly be within the jurisdiction of the courts of such state, and hereby expressly and irrevocably submits itself to the jurisdiction of such courts. Guarantor agrees that so far as is permitted under applicable law, this consent to personal jurisdiction shall be self-operative and no further instrument or action, other than service of process in one of the manners specified in this Lease, or as otherwise permitted by law, shall be necessary in order to confer jurisdiction upon it in any such court. Guarantor hereby irrevocably and unconditionally (a) submits to personal jurisdiction in the Commonwealth of Massachusetts over any suit, action or proceeding arising out of or relating to this Guaranty, and (b) waives any and all rights under the laws of any other jurisdiction to object to jurisdiction within the Commonwealth of Massachusetts or venue in any particular forum within the Commonwealth of Massachusetts. Guarantor agrees that methods of service of process shall be as provided for under applicable law. Nothing contained herein, however, shall prevent Landlord from bringing any suit, action or proceeding or exercising any rights against Guarantor, in the Commonwealth of Massachusetts, or other jurisdiction in which Guarantor is located, all at Landlord’s election, and against any property of Guarantor, in any other state. Initiating such suit, action or proceeding or taking such action in any state, jurisdiction or country shall in no event constitute a waiver of the agreement contained herein that the laws of the Commonwealth of Massachusetts shall govern the rights and obligations of Guarantor and Landlord or the submission herein made by Guarantor to personal jurisdiction within the Commonwealth of Massachusetts. It is agreed that the failure of Landlord to insist in any one or more instances upon a strict performance or observance of any of the terms, provisions or covenants of the Lease or to exercise any right therein contained shall not be construed or deemed to be a waiver or relinquishment for the future of such term, provision, covenant or right, but the same shall continue and remain in full force and effect. Receipt by Landlord of rent with knowledge of the breach of any provision of the Lease shall not be deemed a waiver of such breach. No subletting, assignment or other transfer of the Lease, or any interest therein, shall operate to extinguish or diminish the liability of Guarantor under this Guaranty; and wherever reference is made to the liability of Tenant named in the Lease, such reference shall be deemed likewise to refer to Guarantor. All payments becoming due under this Guaranty and not paid within ten (10) Business Days after written notice from Landlord that the same is due shall bear interest from the applicable due date until received by Landlord at the Interest Rate as defined in the Lease. This Guaranty may be executed by electronic signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. Without limitation, in addition to electronically produced signatures, “electronic signature” shall include electronically scanned and transmitted versions (e.g., via PDF and/or DocuSign) of an original signature. This Guaranty may be executed in multiple counterparts (which counterparts may be executed and delivered by PDF, DocuSign, or another file sent by email) which shall together constitute a single document. Any executed counterpart of this Guaranty delivered by PDF, DocuSign or another file sent by email shall be equally effective as an original counterpart for all purposesNew York.
Appears in 1 contract
Sources: Indenture (Astrazeneca PLC)
FORM OF GUARANTY. In consideration GUARANTY For value received, each of the agreement of 99 HIGH STREET OWNER LLC ("Landlord")Guarantors hereby jointly and severally unconditionally Guarantees, on a senior subordinated basis, to enter into that certain Lease dated as each Holder of June 4a Security authenticated and delivered by the Trustee, 2025 (and to the "Lease") between Landlord and enGene USA, Inc. (“Tenant”), pertaining to certain premises located at 99 High Street in Boston, MassachusettsTrustee on behalf of such Holder, the undersigned ENGENE HOLDINGS INC. ("Guarantor") hereby unconditionally and irrevocably guarantees (i) the timely due and punctual payment of all Rentthe principal of (and premium, if any) and interest (including Additional Sums and Additional Amounts, if any) on such Security when and as defined the same shall become due and payable, whether at the Stated Maturity, by acceleration, call for redemption, purchase or otherwise, in accordance with the Leaseterms of such Security and of this Indenture. In case of the failure of the Note Issuer punctually to make any such payment, each of the Guarantors hereby jointly and severally agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by acceleration, call for redemption, purchase or otherwise, and all other payments required as if such payment were made by the Note Issuer. The Guarantee extends to be paid by Tenant the Note Issuer's repurchase obligations arising from a Change of Control or an Asset Disposition pursuant to the terms and conditions Indenture. Each of the LeaseGuarantors hereby jointly and severally agrees that its obligations hereunder shall be unconditional, and (ii) irrespective of the timely and prompt performance and observance validity, regularity or enforceability of such Security or this Indenture, the absence of any action to enforce the same, any exchange, release or non-perfection of any Lien on any collateral for, or any release or amendment or waiver of any term of any other Guarantee of, or any consent to departure from any requirement of any other Guarantee of all other obligationsor any of the Securities, covenants, conditions, duties, and liabilities the election by the Trustee or any of Tenant under the Lease. Guarantor shall be directly and primarily liable to Landlord for any amount due from Tenant under the Lease, without requiring that Landlord first proceed against Tenant, join Tenant Holders in any proceeding brought to enforce this Guarantyunder Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code") of the application of Section 1111(b)(2) of the Bankruptcy Code, or exhaust equivalent provision under applicable law, any borrowing or grant of a security held interest by Landlord. The obligations of Guarantor include the payment to Landlord of any monies payable by Tenant Note Issuer, as debtor-in-possession, under any provisions Section 364 of the LeaseBankruptcy Code, at or equivalent provision under applicable law, or in equitythe disallowance, including, without limitation, any monies payable by virtue under Section 502 of the breach of any warranty, the grant of any indemnity or by virtue of any other covenant of Tenant under the Lease. Guarantor agrees that Landlord may deal with Tenant in any manner in connection with the Lease without the knowledge or consent of Guarantor and without affecting, limitingBankruptcy Code, or detracting from Guarantor's liability under this Guaranty. Without limiting the generality other similar applicable law, of the foregoing, Guarantor agrees that any extension of time, assignment of the Lease, amendment or modification to the Lease, delay or failure by Landlord in the enforcement of any right under the Lease, or compromise of the amount of any obligation or liability under the Lease made with or without the knowledge or consent of Guarantor shall not affect, limit, or detract from Guarantor's liability under this Guaranty. Guarantor's liability under this Guaranty shall not be affected, limited, or detracted from by any bankruptcy, reorganization, insolvency or similar proceeding affecting Tenant, nor by any termination or disaffirmance of the Lease or any of Tenant's obligations thereunder in connection with such proceeding. If all or any portion of Tenant's obligations under the Lease is paid claims of the Trustee or performed by Tenant, the obligations of Guarantor hereunder shall continue and remain in full force and effect to the extent that all or any part of such payment(s) or performance(s) is avoided or recovered directly or indirectly from Landlord as a preference, fraudulent transfer or otherwise. This Guaranty shall remain in full force and effect until the performance in full to Landlord's satisfaction of all obligations of Tenant under the Lease. It shall be deemed a material default by Guarantor hereunder if any proceeding shall be instituted by or against Guarantor pursuant to any of the provisions Holders for payment of any Act of Congress or State law relating to bankruptcy, reorganizations, arrangements, compositions or other relief from creditors. Guarantor shall give Landlord written notice regarding any such proceeding within two (2) Business Days after Guarantor first receives notice of the institution thereof. So long as guaranteed obligations remain outstanding hereunder, Guarantor shall not, without Landlord’s prior written consent, commence or join with any other person in commencing any bankruptcy or similar proceeding of or against Tenant. To the fullest extent permitted by law, Guarantor will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person to pay to Landlord or allow the claim of Landlord in respect of any interest, fees, costs, expenses or other guaranteed obligations accruing or arising after the date on which such case or proceeding is commenced. Guarantor hereby subordinates any claim or other right now existing or hereafter acquired against Tenant that arises from the performance of Guarantor's obligations under this Guaranty, including, without limitationSecurities, any rights waiver or consent by the Holder of contribution, indemnity, subrogation, reimbursement such Security or exoneration, to payment of all obligations under by the Lease Trustee with respect to any periods when provisions thereof or of the Tenant is in default Indenture, the obtaining of its obligations under any judgment against the LeaseNote Issuer or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Guarantor hereby agrees to indemnify Landlord and hold it harmless from and against all loss and expense, including legal fees, suffered or incurred by Landlord as a result Each of claims to avoid any payment received by Landlord from Tenant with respect to the obligations of Tenant under the Lease. Guarantor Guarantors hereby waives the benefits of diligence, presentment, protest, notice of default, demand for payment, and all other suretyship defenses whatsoever with respect to any payment guaranteed under this Guaranty, and agrees to pay unconditionally upon demand all amounts owed under the Lease. Guarantor further waives any setoff, defense or counterclaim that Tenant or Guarantor may have or claim to have against Landlord and the benefit of any statute of limitations affecting Guarantor's liability under this Guaranty. The liability of Guarantor under this Guaranty is a guaranty of payment and performance and not of collectability. If Landlord retains an attorney to enforce this Guaranty or to bring any action or any appeal in connection with this Guaranty, the Lease, or the collection of any payment under this Guaranty or the Lease, Landlord shall be entitled to recover its attorneys' fees, costs and disbursements in connection therewith, as determined by the court before which such action or appeal is heard, in addition to any other relief to which Landlord may be entitled. Landlord shall have the unrestricted right to assign this Guaranty in connection with an assignment of the landlord’s interest in the Lease without the consent of, or any other action required by, Guarantor. Each reference in this Guaranty to Landlord shall be deemed to include its successors and assigns, to whose benefit the provisions of this Guaranty shall also inure. Each reference in this Guaranty to Guarantor shall be deemed to include the successors and assigns of Guarantor, all of whom shall be bound by the provisions of this Guaranty; provided, however, notwithstanding any such assignment, the original Guarantor shall remain fully and completely liable and responsible for all of its obligations, duties, and liabilities under this Guaranty. In no event shall this Guaranty be assigned, transferred, modified or amended without the prior written consent of Landlord in each instance. Within ten (10) days after delivery of written demand therefor from Landlord, Guarantor shall execute and deliver to Landlord a statement in writing certifying that this Guaranty is unmodified and in full force and effect (or if amended or not fully in effect, an accurate statement of such matters), which statement may be conclusively relied upon by any prospective purchaser, lender, or mortgagee of the premises or property. If any provision of this Guaranty is held to be invalid or unenforceable, the validity and enforceability of the other provisions of this Guaranty shall not be affected. As an inducement to Landlord to enter into the Lease, Guarantor hereby represents and warrants that: (i) Guarantor is not, nor is it owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”) pursuant to Executive Order 13224 or any similar list or any law, order, rule or regulation or any Executive Order of the President of the United States as a terrorist, “Specially Designated National and Blocked Person” or other banned or blocked person (any such person, group, entity or nation being hereinafter referred to as a “Prohibited Person”); (ii) Guarantor is not (nor is it owned or controlled, directly or indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; (iii) from and after the effective date of the above-referenced Executive Order, Guarantor (and any person, group, or entity which Guarantor controls, directly or indirectly) has not conducted nor will conduct business nor has engaged nor will engage in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation, including without limitation any assignment of this Guaranty or the making or receiving of any contribution of funds, goods or services to or for the benefit of a Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation. In connection with the foregoing, it is expressly understood and agreed that (x) any breach by Guarantor of the foregoing representations and warranties shall be deemed a default by Guarantor hereunder and shall be covered by the default provisions of this Guaranty, and (y) the representations and warranties contained in this subsection shall be continuing in nature and shall survive the expiration or earlier termination of this Guaranty; (iv) Guarantor is duly formed and validly existing under the laws of the State of Delaware, has the capacity to be sued and does not enjoy immunity privileges; (v) this Guaranty has been duly authorized by all necessary corporate, limited liability company or other action on Guarantor’s part, has been duly executed and delivered by a duly authorized officer, and constitutes Guarantor’s valid and legally binding agreement in accordance with its terms; (vi) there is no action, suit or proceeding pending, or to the best of Guarantor’s knowledge, threatened in writing against or affecting Guarantor that is reasonably likely to materially and adversely affect the ability of Guarantor to perform its obligations with respect to this Guaranty; (vii) Guarantor is in compliance with the requirements of all applicable laws, rules, regulations, ordinances and orders applicable to Guarantor where noncompliance would affect the ability of Guarantor to perform its obligations under this Guaranty or result in a material adverse change in the business or condition, financial or otherwise, or results of operation or prospects of Guarantor; and (viii) Tenant is a wholly owned subsidiary of Guarantor. Guarantor agrees that this Guaranty shall be construed in accordance with, and governed by, the laws of the Commonwealth of Massachusetts (excluding the laws applicable to conflicts of law). Guarantor further agrees that any action or litigation to enforce this Guaranty shall properly be within the jurisdiction of the courts of such state, and hereby expressly and irrevocably submits itself to the jurisdiction of such courts. Guarantor agrees that so far as is permitted under applicable law, this consent to personal jurisdiction shall be self-operative and no further instrument or action, other than service of process in one of the manners specified in this Lease, or as otherwise permitted by law, shall be necessary in order to confer jurisdiction upon it in any such court. Guarantor hereby irrevocably and unconditionally (a) submits to personal jurisdiction in the Commonwealth of Massachusetts over any suit, action or proceeding arising out of or relating to this Guaranty, and (b) waives any and all rights under the laws of any other jurisdiction to object to jurisdiction within the Commonwealth of Massachusetts or venue in any particular forum within the Commonwealth of Massachusetts. Guarantor agrees that methods of service of process shall be as provided for under applicable law. Nothing contained herein, however, shall prevent Landlord from bringing any suit, action or proceeding or exercising any rights against Guarantor, in the Commonwealth of Massachusetts, or other jurisdiction in which Guarantor is located, all at Landlord’s election, and against any property of Guarantor, in any other state. Initiating such suit, action or proceeding or taking such action in any state, jurisdiction or country shall in no event constitute a waiver of the agreement contained herein requirement that the laws of the Commonwealth of Massachusetts shall govern the rights and obligations of Guarantor and Landlord Trustee or the submission herein made by Guarantor to personal jurisdiction within the Commonwealth of Massachusetts. It is agreed that the failure of Landlord to insist in any one or more instances upon a strict performance or observance of any of the termsHolders protect, provisions secure, perfect or covenants of the Lease insure any security interest in or to exercise any right therein contained shall not be construed or deemed to be a waiver or relinquishment for the future of such term, provision, covenant or right, but the same shall continue and remain in full force and effect. Receipt by Landlord of rent with knowledge of the breach of any provision of the Lease shall not be deemed a waiver of such breach. No subletting, assignment or other transfer of the Lease, or any interest therein, shall operate to extinguish or diminish the liability of Guarantor under this Guaranty; and wherever reference is made to the liability of Tenant named in the Lease, such reference shall be deemed likewise to refer to Guarantor. All payments becoming due under this Guaranty and not paid within ten (10) Business Days after written notice from Landlord that the same is due shall bear interest from the applicable due date until received by Landlord at the Interest Rate as defined in the Lease. This Guaranty may be executed by electronic signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. Without limitation, in addition to electronically produced signatures, “electronic signature” shall include electronically scanned and transmitted versions (e.g., via PDF and/or DocuSign) of an original signature. This Guaranty may be executed in multiple counterparts (which counterparts may be executed and delivered by PDF, DocuSign, or another file sent by email) which shall together constitute a single document. Any executed counterpart of this Guaranty delivered by PDF, DocuSign or another file sent by email shall be equally effective as an original counterpart for all purposes.other
Appears in 1 contract
Sources: Senior Subordinated Indenture (Fresenius Medical Care Corp)
FORM OF GUARANTY. In consideration of order to induce Landlord to execute the agreement of 99 HIGH STREET OWNER LLC ("Landlord"), to enter into that certain Lease dated as of June 4, 2025 (the "foregoing Lease") between Landlord and enGene USA, Inc. (“Tenant”), pertaining to certain premises located at 99 High Street in Boston, Massachusetts, the undersigned ENGENE HOLDINGS INC. ("Guarantor") on behalf of itself and its successors, assigns and legal representatives, does hereby absolutely and unconditionally and irrevocably guarantees (i) the timely and punctual payment of all Rentguarantee, as defined in a guarantee of payment and not merely as a guarantee of collection, for the Lease, benefit of Landlord and all other payments required to be paid by Tenant pursuant to its successors and assigns the terms and conditions of the Lease, and (ii) the timely and prompt full performance and observance of all other obligations, of the covenants, conditions, duties, conditions and liabilities of Tenant under the Lease. Guarantor shall agreements provided to be directly performed and primarily liable to Landlord for any amount due from Tenant under the Lease, without requiring that Landlord first proceed against Tenant, join observed by Tenant in any proceeding brought to enforce this Guaranty, or exhaust any security held by Landlord. The obligations of Guarantor include the payment to Landlord of any monies payable by Tenant under any provisions of the said Lease, at law, or in equity, including, without limitation, any monies payable by virtue the prompt payment of the breach of any warranty, the grant of any indemnity or Base Rent and Additional Rent and all other amounts provided in said Lease to be paid by virtue of any other covenant of Tenant under the Lease(“Guaranteed Obligations”). Guarantor agrees that Landlord may deal with Tenant in any manner in connection with the Lease without the knowledge or consent of Guarantor and without affecting, limiting, or detracting from Guarantor's liability under this Guaranty. Without limiting the generality of the foregoing, Guarantor agrees that any extension of time, assignment of the Lease, amendment or modification to the Lease, delay or failure by Landlord in the enforcement of any right under the Lease, or compromise of the amount of any obligation or liability under the Lease made with or without the knowledge or consent of Guarantor shall not affect, limit, or detract from Guarantor's liability under this Guaranty. Guarantor's liability under this This Guaranty shall not be affectedaffected by the genuineness, limitedvalidity, regularity or detracted from enforceability of the Guaranteed Obligations or the Lease, this Guaranty or any other instrument or agreement evidencing any Guaranteed Obligations or by any bankruptcy, reorganization, insolvency fact or similar proceeding affecting Tenant, nor by any termination or disaffirmance circumstance relating to the Guaranteed Obligations which might otherwise constitute a defense to obligations of the Lease or any of Tenant's obligations thereunder in connection with such proceeding. If all or any portion of Tenant's obligations under the Lease is paid or performed by Tenant, the obligations of Guarantor hereunder shall continue and remain in full force and effect to the extent that all or any part of such payment(s) or performance(s) is avoided or recovered directly or indirectly from Landlord as a preference, fraudulent transfer or otherwise. This Guaranty shall remain in full force and effect until the performance in full to Landlord's satisfaction of all obligations of Tenant under the Lease. It shall be deemed a material default by Guarantor hereunder if any proceeding shall be instituted by or against Guarantor pursuant to any of the provisions of any Act of Congress or State law relating to bankruptcy, reorganizations, arrangements, compositions or other relief from creditors. Guarantor shall give Landlord written notice regarding any such proceeding within two (2) Business Days after Guarantor first receives notice of the institution thereof. So long as guaranteed obligations remain outstanding hereunder, Guarantor shall not, without Landlord’s prior written consent, commence or join with any other person in commencing any bankruptcy or similar proceeding of or against Tenant. To the fullest extent permitted by law, Guarantor will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person to pay to Landlord or allow the claim of Landlord in respect of any interest, fees, costs, expenses or other guaranteed obligations accruing or arising after the date on which such case or proceeding is commenced. Guarantor hereby subordinates any claim or other right now existing or hereafter acquired against Tenant that arises from the performance of Guarantor's obligations under this Guaranty, including, without limitation, any rights of contribution, indemnity, subrogation, reimbursement or exoneration, to payment of all obligations under the Lease with respect to any periods when the Tenant is in default of its obligations under the Lease. Guarantor hereby agrees to indemnify Landlord and hold it harmless from and against all loss and expense, including legal fees, suffered or incurred by Landlord as a result of claims to avoid any payment received by Landlord from Tenant with respect to the obligations of Tenant under the Lease. Guarantor hereby waives presentment, protest, notice of default, demand for payment, and all other suretyship defenses whatsoever with respect to any payment guaranteed under this Guaranty, and agrees to pay unconditionally upon demand all amounts owed under the Lease. Guarantor further waives any setoff, defense or counterclaim that Tenant or Guarantor may have or claim to have against Landlord and the benefit of any statute of limitations affecting Guarantor's liability undersigned under this Guaranty. The liability undersigned waives any defense arising by reason of Guarantor under this Guaranty is a guaranty any disability or other defense of payment and performance and not of collectability. If Landlord retains an attorney to enforce this Guaranty or to bring any action Tenant or any appeal in connection with this Guaranty, the Leaseother guarantor, or the collection cessation from any cause whatsoever of the liability of Tenant or any payment other guarantor, or any claim that the undersigned’s obligations exceed or are more burdensome than those of Tenant or any other guarantor and waives the benefit of the statute of limitations affecting the undersigned’s liability hereunder. The undersigned waives any right to enforce any remedy which Landlord now has or may hereafter have against Tenant or any other guarantor and waives any benefit of and any right to participate in any security, letter of credit or other credit enhancement or support now or hereafter held by or otherwise available to Landlord. Further, the undersigned consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of the undersigned under this Guaranty or the Leasewhich, Landlord shall be entitled to recover its attorneys' feesbut for this provision, costs and disbursements in connection therewith, might operate as determined by the court before which such action or appeal is heard, in addition to any other relief to which Landlord may be entitled. Landlord shall have the unrestricted right to assign this Guaranty in connection with an assignment a discharge of the landlord’s interest in the Lease without the consent ofundersigned. The undersigned hereby waives notice of non-payment, non-performance or any other action required by, Guarantor. Each reference in this Guaranty to Landlord shall be deemed to include its successors and assigns, to whose benefit the provisions of this Guaranty shall also inure. Each reference in this Guaranty to Guarantor shall be deemed to include the successors and assigns of Guarantor, all of whom shall be bound by the provisions of this Guaranty; provided, however, notwithstanding any such assignment, the original Guarantor shall remain fully and completely liable and responsible for all of its obligations, duties, and liabilities under this Guaranty. In no event shall this Guaranty be assigned, transferred, modified or amended without the prior written consent of Landlord in each instance. Within ten (10) days after delivery of written demand therefor from Landlord, Guarantor shall execute and deliver to Landlord a statement in writing certifying that this Guaranty is unmodified and in full force and effect (or if amended or not fully in effect, an accurate statement of such matters), which statement may be conclusively relied upon by any prospective purchaser, lender, or mortgagee of the premises or property. If any provision of this Guaranty is held to be invalid or unenforceable, the validity and enforceability of the other provisions of this Guaranty shall not be affected. As an inducement to Landlord to enter into the Lease, Guarantor hereby represents and warrants that: (i) Guarantor is not, nor is it owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”) pursuant to Executive Order 13224 or any similar list or any law, order, rule or regulation or any Executive Order of the President of the United States as a terrorist, “Specially Designated National and Blocked Person” or other banned or blocked person (any such person, group, entity or nation being hereinafter referred to as a “Prohibited Person”); (ii) Guarantor is not (nor is it owned or controlled, directly or indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; (iii) from and after the effective date of the abovenon-referenced Executive Order, Guarantor (and any person, group, or entity which Guarantor controls, directly or indirectly) has not conducted nor will conduct business nor has engaged nor will engage in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation, including without limitation any assignment of this Guaranty or the making or receiving of any contribution of funds, goods or services to or for the benefit of a Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation. In connection with the foregoing, it is expressly understood and agreed that (x) any breach by Guarantor of the foregoing representations and warranties shall be deemed a default by Guarantor hereunder and shall be covered by the default provisions of this Guaranty, and (y) the representations and warranties contained in this subsection shall be continuing in nature and shall survive the expiration or earlier termination of this Guaranty; (iv) Guarantor is duly formed and validly existing under the laws of the State of Delaware, has the capacity to be sued and does not enjoy immunity privileges; (v) this Guaranty has been duly authorized by all necessary corporate, limited liability company or other action on Guarantor’s part, has been duly executed and delivered by a duly authorized officer, and constitutes Guarantor’s valid and legally binding agreement in accordance with its terms; (vi) there is no action, suit or proceeding pending, or to the best of Guarantor’s knowledge, threatened in writing against or affecting Guarantor that is reasonably likely to materially and adversely affect the ability of Guarantor to perform its obligations with respect to this Guaranty; (vii) Guarantor is in compliance with the requirements of all applicable laws, rules, regulations, ordinances and orders applicable to Guarantor where noncompliance would affect the ability of Guarantor to perform its obligations under this Guaranty or result in a material adverse change in the business or condition, financial or otherwise, or results of operation or prospects of Guarantor; and (viii) Tenant is a wholly owned subsidiary of Guarantor. Guarantor agrees that this Guaranty shall be construed in accordance with, and governed by, the laws of the Commonwealth of Massachusetts (excluding the laws applicable to conflicts of law). Guarantor further agrees that any action or litigation to enforce this Guaranty shall properly be within the jurisdiction of the courts of such state, and hereby expressly and irrevocably submits itself to the jurisdiction of such courts. Guarantor agrees that so far as is permitted under applicable law, this consent to personal jurisdiction shall be self-operative and no further instrument or action, other than service of process in one of the manners specified in this Lease, or as otherwise permitted by law, shall be necessary in order to confer jurisdiction upon it in any such court. Guarantor hereby irrevocably and unconditionally (a) submits to personal jurisdiction in the Commonwealth of Massachusetts over any suit, action or proceeding arising out of or relating to this Guaranty, and (b) waives any observance and all rights under the laws of any other jurisdiction to object to jurisdiction within the Commonwealth of Massachusetts notices and all proof or venue in any particular forum within the Commonwealth of Massachusetts. Guarantor agrees that methods of service of process shall be as provided for under applicable law. Nothing contained herein, however, shall prevent Landlord from bringing any suit, action or proceeding or exercising any rights against Guarantor, in the Commonwealth of Massachusetts, or other jurisdiction in which Guarantor is located, all at Landlord’s election, and against any property of Guarantor, in any other state. Initiating such suit, action or proceeding or taking such action in any state, jurisdiction or country shall in no event constitute a waiver of the agreement contained herein that the laws of the Commonwealth of Massachusetts shall govern the rights and obligations of Guarantor and Landlord or the submission herein made by Guarantor to personal jurisdiction within the Commonwealth of Massachusetts. It is agreed that the failure of Landlord to insist in any one or more instances upon a strict performance or observance of any of the terms, provisions or covenants of the Lease or to exercise any right therein contained shall not be construed or deemed to be a waiver or relinquishment for the future of such term, provision, covenant or right, but the same shall continue and remain in full force and effect. Receipt by Landlord of rent with knowledge of the breach of any provision of the Lease shall not be deemed a waiver of such breach. No subletting, assignment or other transfer of the Lease, or any interest therein, shall operate to extinguish or diminish the liability of Guarantor under this Guaranty; and wherever reference is made to the liability of Tenant named in the Lease, such reference shall be deemed likewise to refer to Guarantor. All payments becoming due under this Guaranty and not paid within ten (10) Business Days after written notice from Landlord that the same is due shall bear interest from the applicable due date until received by Landlord at the Interest Rate as defined in the Lease. This Guaranty may be executed by electronic signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. Without limitation, in addition to electronically produced signatures, “electronic signature” shall include electronically scanned and transmitted versions (e.g., via PDF and/or DocuSign) of an original signature. This Guaranty may be executed in multiple counterparts (which counterparts may be executed and delivered by PDF, DocuSign, or another file sent by email) which shall together constitute a single document. Any executed counterpart of this Guaranty delivered by PDF, DocuSign or another file sent by email shall be equally effective as an original counterpart for all purposesdemands.
Appears in 1 contract