EXHIBIT 10.79
Lease Guaranty
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This GUARANTY OF LEASE ("Guaranty") is made and entered into as of the 1/st/
day of December, 1998, and is by and between XXXXXX X. XXXXXXXX and XXXXXX X.
XXXXXXXX (collectively "Guarantor) in favor of G&L CORONADO LLC, a Delaware
limited liability company ("Landlord") with respect to the following
circumstances:
1. Landlord has entered into a lease ("Lease"), dated concurrently
herewith, with CORONADO MANAGERS CORP., a Delaware corporation ("Tenant"),
whether acting on behalf of itself or any estate created by the commencement of
a case under Title 11 of the United States Code or any successor statute thereto
(the "Bankruptcy Code") or any other insolvency, bankruptcy, reorganization or
liquidation proceeding, or by any trustee under the Bankruptcy Code, liquidator,
sequestrator or receiver of Tenant or Tenant's property or similar person duly
appointed pursuant to any law generally governing any insolvency, bankruptcy,
reorganization, liquidation, receivership or like proceedings.
2. In consideration of Landlord entering into the Lease with Tenant,
and with full knowledge that Landlord would not have entered into the Lease with
Tenant were it not for the agreements of Guarantor hereunder, Guarantor hereby
agrees as follows:
a. Guarantor hereby guarantees the full, faithful and timely
payment and performance by Tenant of all of the payments, covenants and other
obligations of Tenant under or pursuant to the Lease (all of which shall
hereinafter be referred to as the "Obligations"). If Tenant shall default at any
time in the payment of any rent or any other sums, costs, or charges whatsoever,
or in the performance of any of the other covenants and obligations of Tenant,
under or pursuant to the Lease, then Guarantor(s), at Guarantor's expense, shall
on demand of Landlord fully and promptly, and pay all rent, sums, costs and
charges to be paid by Tenant, and perform all the other covenants and
obligations to be performed by Tenant under or pursuant to the Lease. In
addition, Guarantor shall, on Landlord's demand, pay to Landlord any and all
sums due to Landlord, including (without limitation) all interest and late
charges with respect to past due obligations of Tenant, costs advanced by
Landlord, and damages and all expenses (including attorneys' fees and litigation
costs) that may arise in consequence of Tenant's default. Guarantor hereby
waives all requirements of notice of the acceptance of this Guaranty. Guarantor
specifically agrees that this is a guaranty of payment and performance, not of
collection or satisfaction of judgment.
b. In case of the dissolution, liquidation or insolvency
(howsoever evidenced) of, or the institution of bankruptcy or receivership
proceedings against Tenant or Guarantor, all of the Obligations then existing
shall, at the option of Landlord, immediately become due or accrued and payable
from Guarantor. In the event of a default by Tenant under the Lease, all
dividends or other payments received thereafter by Guarantor from Tenant or on
account of the Obligations from whatsoever source, shall be taken and applied as
payment in gross, and this Guaranty shall apply to and secure any ultimate
balance that shall remain owing to Landlord.
c. The liability hereunder shall in no way be terminated, diminished,
affected or impaired by (and Landlord is hereby authorized to maker from time to
time, without notice to Guarantor) any extensions, renewals, amendments,
indulgences, modifications, transfers or assignments in whole or in part of the
Lease by Landlord, whether or not notice thereof is given to Guarantor, by
reason of sums paid or payable to Landlord from the proceeds of any insurance
policy or condemnation award, sale, pledge, surrender, compromise, settlement,
release, renewal, extension, indulgence, alteration, substitution, exchange,
change in, modification or other disposition of any of the Obligations, either
express or implied, or of any security, additional security or collateral
therefor. The liability hereunder shall in no way be terminated, diminished,
affected or impaired by any acceptance by Landlord of any security or additional
security for, or other guarantors, or by the invalidity, unenforceability, loss
of, change in priority or reduction in value in or loss of value of any of the
security or additional security, or by any failure, neglect or omission on the
part of Landlord to realize upon or protect any of the Obligations, or any
collateral or security or additional security therefor, or to exercise any lien
upon or right of appropriation of any monies, credits or property of Tenant,
possessed by Landlord, toward the liquidation of the Obligations, or by any
application of payments or credits thereon or by any failure, neglect or
omission on the party of Landlord to enforce the obligations of the other
Guarantors or by the surrender, compromise, settlement, release, change,
modification or other disposition of the obligations of the other Guarantors.
Landlord shall have the exclusive right to determine how, when and what
application of payments and credits, if any, shall be made on the Obligations,
or any part thereof. In order to hold Guarantor liable hereunder, there shall be
no obligation on the part of Landlord, at any time, to resort for payment to
Tenant or to any other Guaranty, or to any other persons or corporations, their
properties or estates, or resort to any collateral, security, property liens or
other rights or remedies whatsoever, and Landlord shall have the right to
enforce this Guaranty irrespective of whether or not other proceedings or steps
seeking resort to or realization upon or from any of the foregoing are pending.
d. All Landlord's diligence in collection or protection, and all
Landlord's demand and notice, as to any and everyone, whether or not Tenant or
Guarantor or others, of default and of non-payment and of the creation and
existence of any and all of the Obligations, and of any security and collateral
therefor, and of the acceptance of this Guaranty, and of any and all extensions
of credit and indulgence hereunder, are waived.
3. Notwithstanding any other provision of this Guaranty to the contrary,
Guarantor hereby waives any claim or other rights which Guarantor may now have
or hereafter acquire against Tenant or any other guarantor of all or any of
Tenant's obligations under the Lease that arise from the existence or
performance of Guarantor's obligations under this Guaranty or otherwise (all
such claims and rights are referred to as "Guarantor's Conditional Rights").
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, or indemnification, any right to participate in any
claim or remedy of Landlord against Tenant or any collateral which Landlord now
has or hereafter acquires, whether or not such claim, remedy, or right arises in
equity or under contract, statute or common law, by any payment made hereunder
or otherwise, including without litigation, the right to take or receive from
Tenant, director or indirectly, in cash or other property or by setoff or in any
other manner payment, or security on account of such claim or other rights. If,
notwithstanding the foregoing provisions, any amount shall be paid to Guarantor
on account of any such Guarantors conditional rights and either (a) such amount
is paid to Guarantor at any time when any of
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Tenant's obligations under the Lease shall not have been paid or performed in
full, or (b) regardless of when such amount is paid to Guarantor, any payment
made by Tenant to landlord is at any time determined to be a Preferential
Payment, then such amount paid to Guarantor shall be held in trust for the
benefit of Landlord and shall forthwith be paid to landlord to be credited and
applied upon Tenant's obligations under the Lease, whether matured or unmatured,
in such order as Landlord, in its sole and absolute discretion, shall determine,
To the extent that any of the foregoing provisions of this Section 4 shall not
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be enforceable, Guarantor agrees that until the period of time has expired
during which any payment made by Tenant or Guarantor to Landlord may be
determined to be a Preferential Payment, Guarantor's Conditional Rights to the
extent not validly waived shall be subordinate to Landlord's right to full
payment and performance of all the obligations of Tenant under the Lease and
Guarantor shall not enforce Guarantor's Conditional Rights during such period.
4. Landlord may, without any notice whatsoever to any, sell, mortgage,
encumber, hypothecate, assign or transfer the Lease and all of the Obligations,
or any part thereof, or grant participation therein, and in that event each and
every immediate and successive grantor, mortgagor, trustee under a trust deed in
the nature of a mortgage, assignee, transferee, or holder or participant in all
or any part of the Lease or Obligations, shall have the right to enforce this
Guaranty, by suit or otherwise, for the benefit of such grantor, mortgagor,
trustee under a trust deed in the nature of a mortgage, assignee, transferee,
holder or participant, as fully as if such grantor, mortgagor, trustee under a
trust deed in the nature of the mortgage, assignee, transferee, holder or
participant were herein by name specifically given such rights, powers and
benefits; but Landlord shall have an unimpaired right to enforce this Guaranty
for the benefit of Landlord or any such participant, as to so much of the
Obligations that it has not sold, assigned or transferred.
5. Guarantor waives any and all defenses, claims and discharges of Tenant,
or any other obligor, pertaining to the Obligations, except the defense of
discharge by payment in full. Without limiting the generality of the foregoing,
Guarantor will not assert, plead or enforce against Landlord any defense of
waiver, release, discharge in bankruptcy, statute of limitations, res judicata,
statute of frauds, anti-deficiency statute, fraud, incapacity, minority, usury,
illegality or unenforceability which may be available to Tenant or any other
person liable in respect of any of the Obligations, or any setoff available
against Landlord to Tenant or any such other person, whether or not on account
of a related transaction, Guarantor agrees that Guarantor shall be and remain
liable for any deficiency remaining after foreclosure of any collateral securing
the Obligations, whether or not the liability of Tenant or any other obligor for
such deficiency is discharged pursuant to statute or judicial decision.
6. Landlord's rights under this Guaranty will not be exhausted by any
action by Landlord until all of the Obligations have been fully paid and
performed and the period of time has expired during which any payment made by
Tenant or Guarantor to Landlord may be determined to be a Preferential Payment
(hereinafter defined). Guarantor further agrees that to the extent Tenant or
Guarantor makes any payment to Landlord in connection with the obligations of
Tenant under the Lease and all or any part of such payment is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid by Landlord or paid over to a trustee, receiver, or any other entity,
whether under any bankruptcy act or otherwise (any such payment is hereinafter
referred to as a "Preferential Payment"), then this Guaranty shall continue to
be effective or shall be reinstated, as the case may be, and, to
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the extent of such payment or repayment by Landlord, the obligations or part
thereof intended to be satisfied by such Preferential Payment shall be revived
and continued in full force and effect as if said Preferential Payment had not
been made.
7. Any debt, Obligations, obligations and liabilities (the "Debts") of
Tenant now or hereafter held by Guarantor, is hereby subordinated to the
Obligations of Tenant to Landlord; and, in the event of a default by Tenant
under the Lease, such Debts of Tenant to Guarantor if Landlord so requests shall
be collected, enforced and received by Guarantor as trustee for Landlord and
shall be paid over to Landlord on account of the Obligations of Tenant to
Landlord, but without reducing or affecting in any manner the liability of
Guarantor under the other provisions of this Guaranty.
8. Guarantor agrees at any time and from time to time, on not less than
fourteen (14) days prior request by Landlord, to execute, acknowledge and
deliver to Landlord and such Landlord's proposed grantors, mortgagees, trustee
under a trust deed in a nature of a mortgage, successor or Tenant of the
Obligations a statement in writing certifying that this Guaranty is unmodified
and in full force or effect (or if the same has been modified, that the same is
in full force and effect as modified and stating the modifications) and stating
whether Guarantor claims any defenses, offsets or counterclaims against the
enforcement of this Guaranty (and if so, the nature and amount of such defense,
offset or counterclaim). Guarantor understands that the written certificate
delivered pursuant to this paragraph may be relied upon by any prospective
purchaser, mortgagee or trustee under a trust deed in the nature of a mortgage
of the Lease or Obligations.
9. Guarantor hereby consents to any remedy pursued by Landlord or its
successor in interest to enforce its rights under the Lease, in whatever order
such party may choose, including any remedies which may affect or destroy
Guarantor's right of subrogation, contribution or reimbursement or the right of
Guarantor to proceed against Tenant for reimbursement. Without limiting the
generality of the foregoing, Guarantor hereby waives any rights Guarantor may
have under California Civil Code sections 2809, 2819, 2845, 2849, and 2850, as
they may be amended or modified from time to time, and any similar or successor
statutes, Landlord shall have no obligation to protect, secure or insure the
real estate, including all improvements thereon, described in the Lease or any
security or additional security, security interests, liens or encumbrances of
any collateral or additional collateral or interests in properties subject
thereto. Guarantor agrees that there are no conditions or limitations to
Landlord's right to enforce this Guaranty.
10. Any invalidity or unenforceability of any provision or application of
this Guaranty shall not affect other lawful provisions and applications hereof,
and to this end the provisions of this Guaranty are declared to be severable.
This Guaranty shall be construed according to the laws of the State of
California, in which State it shall be performed by Guarantor and may not be
waived, amended, released or otherwise changed except by a writing signed by
Landlord.
11. Guarantor agrees that Landlord shall have the right to file lawsuits
from time to time against Guarantor to enforce this Guaranty in any court or
courts of competent jurisdiction in Los Angeles County, State of California, and
in furtherance thereof, Guarantor hereby submits itself to and consents to the
jurisdiction of any such court of competent jurisdiction for lawsuits in Los
Angeles County, State of California.
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12. If any legal action is brought to enforce or interpret any part of this
Agreement, the successful or prevailing party shall be entitled to recover
reasonable attorneys' fees and other costs in connection therewith. Any judgment
shall include an attorneys' fees clause which shall entitle the judgment
creditor to recover attorneys' fees incurred to enforce a judgment hereon, which
attorneys' fees shall be an element of post-judgment costs. The "prevailing
party" shall be the party who is entitled to recover his costs of suit whether
or not the suit proceeds to final judgment. The successful or prevailing party
in any legal action brought to enforce or interpret any part of this Agreement
shall be entitled to recover reasonable attorneys' fees and other costs incurred
after a judgment has been entered in defending, perfecting or enforcing the
judgment, which attorneys' fees shall be an element of post-judgment costs. The
parties agree that this post-judgment attorneys' fee provision is a distinct
contractual agreement severable from the rights set forth elsewhere in this
Agreement and shall not merge into any judgment enforcing or interpreting any
other part of this agreement.
13. This Guaranty and every part thereof shall be effective upon delivery
to Landlord, without further act, condition or acceptance by Landlord, shall be
binding upon Guarantor and upon its successors and assigns and shall inure to
the benefit of Landlord, its grantors, mortgagees, trustees under a trust deed
in nature of a mortgage, successors and assigns. Guarantor waives notice of
Landlord's acceptance hereof.
SIGNED AND DELIVERED by Guarantor, at Beverly Hills, California, this 1/st/
day of December, 1998.
/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX
000 X. Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX
000 X. Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
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