GUARANTY OF SUBLEASE
This Guaranty of Sublease ("Guaranty") is made and effective as of
April 28, 1998, by Fields Aircraft Spares Inc., a Utah corporation ("Guarantor")
in favor of Sunrise Medical HHG Inc., a California corporation ("Sublandlord")
with reference to the facts set forth below.
RECITALS:
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A. Sublandlord has entered into that certain Sublease ("Sublease") of
even date herewith with Fields Aircraft Spares, Incorporated, a California
corporation ("Subtenant"), for the lease of the premises ("Premises") consisting
of an approximately 122,484 square foot industrial building, located at 4175
Guardian Street, Simi Valley, California, together with the surrounding real
property and improvements, as further described in the Sublease.
B. As a condition to entering into the Sublease, Sublandlord has
required that Guarantor execute this Guaranty guaranteeing performance of all
the covenants on Subtenant's part to be performed pursuant to the Sublease.
Guarantor's agreement to provide this Guaranty is a material consideration for
Sublandlord's decision to lease the Premises to Subtenant.
NOW, THEREFORE, to induce Sublandlord to enter into the Sublease and in
consideration thereof, Guarantor agrees as set forth below.
1. Guarantor unconditionally guarantees to Sublandlord, and to Sublandlord's
successors and assigns, the payment by Subtenant of the rental and all other
charges which accrue under the Sublease in the manner and at the time prescribed
therein, and the full and punctual performance and observance, by Subtenant, of
all the terms, covenants and conditions contained in the Sublease. Guarantor
waives notice of any breach or default by Subtenant. Guarantor's obligations
hereunder shall continue in full force and effect with respect to any of
Subtenant's obligations under the Sublease which are not performed upon the
termination of this Sublease.
2. This Guaranty is a continuing guaranty of all of Subtenant's obligations
under the Sublease, independent of and in addition to any other guaranty,
previously or subsequently given to Sublandlord, and this Guaranty shall not
affect any of said guaranties.
3. Guarantor hereby expressly waives and relinquishes any and all rights and
remedies which Guarantor may have or be able to assert by reason of the laws or
decisions of the State of California pertaining to the rights and remedies of
sureties.
4. Guarantor waives any right to require Sublandlord to (a) proceed against
Subtenant or any co-guarantor, (b) proceed against or exhaust any security
(including a security deposit) held by Sublandlord, or (c) pursue any remedy in
Sublandlord's power whatsoever. Guarantor waives any defense it may acquire by
reason of Sublandlord's election of any remedy against it or Subtenant or both,
including, but without limitation, the election by Sublandlord to exercise its
rights to occupy and operate the Premises under the Sublease.
5. Guarantor waives any defense based upon the legal disability of Subtenant, or
any discharge, release or limitation of the liability of Subtenant to
Sublandlord, or any restraint or
stay applicable to actions against Subtenant, or any disaffirmance or
abandonment of the Sublease by a trustee of Subtenant whether consensual, or by
order of a court or other governmental authority, arising by operation of law or
any liquidation, reorganization, receivership, bankruptcy, insolvency or debtor
relief proceeding, or any other cause. Guarantor further waives any defense
based upon any amendment, modification, renewal, extension, assignment,
subletting or other alteration (with or without the consent of Sublandlord) of
the Sublease, or the term of the Sublease or obligation of Subtenant or
Sublandlord under the Sublease, or any other documents relating to the
transactions described therein; any defense based upon the negligence of
Sublandlord; any defense based upon the forfeiture or termination of the
Sublease by Sublandlord whether by expiration or default; any defense based upon
the failure of Sublandlord to file a claim in bankruptcy of Subtenant; all
rights of subrogation, all rights to enforce any remedy that Sublandlord may
have against Subtenant, and all rights to participate in any security held by
Sublandlord for the performance and obligations of Subtenant under the Sublease,
except to the extent such security remains after payment and performance of
Subtenant's obligations in full; any defense based upon the impairment of any
subrogation rights that Subtenant might have; any defense based upon death,
incapacity, lack of authority or termination of existence or revocation hereof
by any person or entity, or persons or entities, or the substitution of any
party hereto, and any defense based upon or related to Guarantor's lack of
knowledge as to Subtenant's financial condition, and any and all rights under
Section 2845 of the California Civil Code and any successor provision.
6. Guarantor waives all presentments, demands, protests and notices of any kind
including notice of acceptance of the Guaranty by Sublandlord. Any act of
Sublandlord, or its successors or assigns, consisting of a modification of the
Sublease, a waiver of any of the terms or conditions of the Sublease, or the
giving of any consent to any manner or thing relating to the Sublease, or the
granting of any indulgences or extensions of time to Subtenant, are hereby
deemed approved by Guarantor and may be done without notice to Guarantor and
without releasing Guarantor from any of its obligations hereunder.
7. Guarantor assumes full responsibility for keeping fully informed of the
financial condition of Subtenant and all other circumstances affecting
Subtenant's ability to perform its obligations to Sublandlord, and agrees that
Sublandlord shall have no duty to report to Guarantor any information which
Sublandlord receives about Subtenant's financial condition or any circumstances
bearing on Subtenant's ability to perform.
8. The covenants and obligations of Guarantor hereunder are independent of the
Subtenant's obligations under the Sublease and are binding upon the Guarantor
notwithstanding the fact that the Guarantor is not the signatory to the
Sublease; separate action or actions may be brought against any guarantor
hereon, whether or not action is brought against Subtenant or any co-guarantor
or Subtenant or any co-guarantor be joined in any such action or actions.
9. Any indebtedness or other obligations of Subtenant now or hereafter held by
Guarantor is hereby subordinated to Subtenant's obligations to Sublandlord, and
such indebtedness or other obligations of Subtenant to Guarantor, if Sublandlord
so request, shall be collected, enforced and received by Guarantor as Trustee
for Sublandlord and be paid over to Sublandlord on account of Subtenant's
obligations to Sublandlord, but without reducing or affecting in any manner the
liability of Guarantor under the other provisions of this Guaranty.
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10. This Guaranty shall be enforceable by Sublandlord in accordance with the
laws of the State of California and shall be construed in accordance therewith,
without regard to principles of conflicts of laws. Guarantor agrees to pay
attorney's fees and all other costs and expenses which may be incurred by
Sublandlord in enforcement of this Guaranty. Until paid to Sublandlord, such
sums will bear interest from the date such costs and expenses are incurred at
the maximum rate permitted by law.
11. No delay or failure on the part of Sublandlord to pursue any right or remedy
hereunder or under the Sublease shall constitute a waiver of that right or
remedy. All remedies of Sublandlord against Guarantor are cumulative.
12. The obligations and promises set forth herein shall be joint and several
undertakings of each of the persons executing this Guaranty as a Guarantor, and
Sublandlord may proceed hereunder against any one or more of said persons
without waiving its right to proceed against any of the others. The use of the
singular herein shall include the plural.
13. Guarantor acknowledges that its undertakings given hereunder are given in
consideration of Sublandlord's entering into the Sublease and that Sublandlord
would not consummate the Sublease were it not for the execution and delivery of
this Guaranty.
14. The provisions of this Guaranty will bind and benefit the heirs, executors,
administrators, legal representatives, successors and assigns of Guarantor and
Sublandlord.
15. Guarantor individually represents and warrants that it has all requisite
power and authority to:
15.1 execute deliver, perform and be legally bound by this Guaranty on the
terms and conditions herein stated; and
15.2 transact any other business with Sublandlord as necessary to fulfill
the terms of this Guaranty.
16. No provision of this Guaranty or Sublandlord's rights hereunder can be
waived or modified nor can Guarantor be released from its obligations hereunder
except by a writing executed by Sublandlord. No such waiver shall be applicable
except in the specific instance for which given.
17. The term "Subtenant" will mean both the named subtenant and any other person
or entity at any time assuming, subleasing or otherwise becoming primarily
liable for all or any part of the subtenant's obligations. The term
"Sublandlord" will mean both the sublandlord named herein and any future owner
or holder of Sublandlord's interest in the Premises. Sublandlord may, without
notice, assign this Guaranty in whole or in part without extinguishing or
reducing the liability of the Guarantor.
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18. All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be considered effective upon personal
delivery or upon the earlier of (i) two (2) business days after deposit in
first-class United States mail, postage prepaid, registered or certified or (ii)
actual receipt as shown by the return receipt. For purposes of notice, the
addresses of Guarantor shall be as set forth on the signature page hereof;
provided, however, that any party shall have the right to change its address for
notice hereunder to any other location by giving notice to the other party in
the manner set forth above.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of
the day and year first above written.
GUARANTOR
FIELDS AIRCRAFT SPARES INC., a
Utah corporation
Guarantor's Address:
341 A Street By: /s/ Alan M. Fields
Fillmore, CA 93015 ----------------------------
Name: Alan M. Fields
Title: President & CEO
By: /s/ L. J. Troyna
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Name: L. J. Troyna
Title: Chief Financial Officer
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