Exhibit 10.5(c)
GUARANTY AGREEMENT
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THIS GUARANTY AGREEMENT is dated as of March 22, 1996 by and between
IMPERIAL CREDIT INDUSTRIES, INC., a California corporation, (the "GUARANTOR"),
and FAWN ASSOCIATES LIMITED PARTNERSHIP, a Connecticut limited partnership
("LESSOR").
WHEREAS, the Guarantor is affiliated with FRANCHISE MORTGAGE ACCEPTANCE
COMPANY LLC, a California limited liability company (the "LESSEE"); and
WHEREAS, Guarantor wishes Lessee to enter into that certain Lease between
Lessor and Lessee dated as of March 22, 1996 (the "LEASE"), providing for the
Lease by Lessor to Lessee of certain premises in 5 Greenwich Office Park,
Greenwich, Connecticut, which premises are more particularly described in the
Lease; and
WHEREAS, Lessor is unwilling to enter into the Lease with Lessee unless
Guarantor enters into this Guaranty Agreement; and
WHEREAS, Guarantor is willing to enter into this Guaranty Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Guarantor unconditionally guarantees the due and punctual payment of
all Fixed Rent, Additional Rent, interest charges or other amounts provided for
in the Lease and all other sums at any time becoming due and payable by Lessee
(including damages provided for in the Lease, or damages allowed by law upon any
Lessee default) and the performance of all of Lessee's obligations under the
Lease.
2. The above guaranty is an absolute, unconditional, continuing guaranty
of payment and performance and not of collectibility, and is in no way
conditioned or contingent upon any attempt to collect from Lessee or upon any
other condition or contingency. If Lessee fails to pay any Fixed Rent,
Additional Rent, damages or any other sums at any time becoming due and payable
by Lessee under the Lease beyond any applicable notice and grace periods, or if
Lessee fails to perform any obligation on Lessee's part to be performed under
the Lease beyond any applicable notice and grace periods, then, upon written
notice, Guarantor shall promptly pay or perform the same.
3. If Lessor pursues Guarantor to enforce the obligations of Guarantor
under this Guaranty Agreement or the obligations of Lessee under the Lease and
prevails therein, Guarantor shall pay all costs and expenses incurred by or on
behalf of Lessor, including reasonable attorney's fees. Lessor shall be under no
obligation to proceed against Lessee before proceeding against the Guarantor.
Guarantor hereby agrees (i) that Guarantor shall be at all times subject to the
jurisdiction of the courts of the State of Connecticut in connection with the
Lease and this Guaranty Agreement and, (ii) that all disputes relating to this
Guaranty Agreement shall be subject to the jurisdiction of the courts of the
State of Connecticut.
4. This Guaranty Agreement and all guaranties and covenants and
agreements of Guarantor contained herein shall continue in full force and effect
throughout the Lease Term and thereafter so long as any obligation or liability
of Lessee under the Lease shall remain unperformed or unsatisfied.
5. Except as provided in Paragraph 8, the obligations of Guarantor under
this Agreement shall not be terminated or in any way released or impaired by,
and shall survive and remain in full force and effect notwithstanding, any
occurrence whatsoever, including, without limitation, (a) any amendment or
modification of, addition or supplement to the Lease or of any covenants,
agreements, terms or conditions contained therein; (b) any exercise or
non-exercise by Lessor of any right, power, or remedy under, or in respect of
the Lease, or any waiver of such right, power, or remedy; (c) any waiver,
consent, extension, indulgence or other action, inaction or omission under or in
respect of
the Lease; (d) any assignment, sale, sublease, surrender, forfeiture, re-entry,
re-letting or other transfer in respect of the Lease or any or all of the
Premises (as defined in the Lease) or any interest therein by Lessor or Lessee;
or (e) any insolvency, bankruptcy, receivership, liquidation, merger,
reorganization, readjustment, composition, dissolution, winding up or similar
proceeding involving or affecting Lessor or Lessee, whether or not Guarantor
shall have notice or knowledge of any of the foregoing items.
6. Lessor may at any time, and from time to time, assign, by way of
pledge or otherwise, any of Lessor's rights under the Lease or any or all of the
rights (in whole or part) of Lessor under this Guaranty Agreement. From and
after any such assignment, the assignee may enforce any and all of the terms of
this Guaranty Agreement, to the extent so assigned, as though such Assignee had
been a party hereto.
7. All notices and other communications hereunder shall be in writing and
shall be delivered or mailed by registered or certified mail, postage prepaid,
addressed:
If to Guarantor: 3701 Skypark Drive
Torrance, CA 90505
If to Lessor: Fawn Associates Limited Partnership
100 Putnam Green
Greenwich, Connecticut 06830
Attention: Chief Executive Officer
or at such address as either party shall have furnished to the other in writing.
8. If any term of this Guaranty Agreement, or any application thereof,
shall be invalid or unenforceable, the remainder of this Guaranty Agreement, and
any other application of such term shall not be affected thereby. Neither this
Guaranty Agreement nor any term hereof may be changed, waived, discharged, or
terminated orally, but only by an instrument in writing signed by the party
against which the enforcement of the charge, waiver, discharge or termination is
sought. The terms of this Guaranty Agreement shall be binding upon Guarantor and
its successors and assigns, and shall insure to the benefit of Lessor and its
successors and assigns.
9. This Guaranty Agreement may be executed in counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty Agreement to be
duly executed and attested on the date set forth above.
Signed and Delivered
in the presence of:
IMPERIAL CREDIT INDUSTRIES, INC.
_______________________________
By: [SIGNATURE ILLEGIBLE]
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Its: Chairman Duly Authorized
_______________________________
TENANT ESTOPPEL CERTIFICATE
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Re: 5 Greenwich Office Park
The undersigned, as Lessee under that certain Lease dated March 22, 1996,
as amended by First Amendment to Lease, dated as of July 12, 1996, made with
Fawn Associations Limited Partnership, now known as Fawn Associates Limited
Liability Company, as Lessor, does hereby certify to New York Life Insurance
Company, 51 Madison Avenue, New York, New York 10010:
1. That its leased premises at the above location have been completed in
accordance with the terms of the Lease, subject to punchlist items, that it
has accepted possession of said premises and that it now occupies the same,
and is open for business;
2. That the Lease term began on June 7, 1996, that it began paying rent on
8,570 rentable square feet on June 7, 1996, and 3,212 additional rentable
square feet on October 1, 1996, that it pays rent on a current basis, that,
save only as may be required by the terms of the Lease, no rent has been or
will be paid by the Lessee during the term of this lease for more than one
month in advance, that the rent payable under the Lease is the amount of
fixed rent provided thereunder, which is net annual rent payable to Lessor
of $255,669.40 and that there is no claim or basis for an adjustment
thereto;
3. That to Lessee's knowledge there exist no defenses or offsets to
enforcement of the Lease by the Lessor and that there are, as of the date
hereof, no defaults or breaches on the part of the Lessor under the Lease
known to the undersigned and the undersigned has made no claim against the
Lessor;
4. That the Lease is now in full force and effect and has not been amended,
modified or assigned and the Lease is the only agreement between Lessor and
the undersigned regarding the leased premises;
5. That all required parking spaces have been furnished and/or all parking
ratios have been met.
6. That the Lessee shall not look to New York Life, it successors or assigns
for the return of the security deposit, if any, under the Lease unless the
same is actually delivered to New York Life as security for our performance
under the Lease.
7. That Lessee is in full compliance (to the extent such compliance is
Lessee's responsibility under the Lease) with all Federal, State and Local
laws, ordinances, rules and regulations affecting its use of the premises,
including, but not limited to the handling, storage and disposal of
hazardous and/or toxic materials used or generated as a result of its
business conducted on or about the leased premises.
It is understood that New York Life requires this statement from the
undersigned as a condition to the making of a loan to the owners of the property
comprising the leased premises, secured by a first mortgage thereon and also by
an assignment of the Lease as collateral security.
Dated: October 23, 1996
Lessee: FRANCHISE MORTGAGE ACCEPTANCE
COMPANY LLC
By: [SIGNATURE ILLEGIBLE]
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Name: SVP
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Title:__________________________________