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05-123 Coffee Society 05-/23 ASSIGNMENT OF LEASE The following definitions and designations shall apply in Assignment, without regard to number or gender: BUSINESS: Coffee Society at the Cupertino Library PREMISES: 10800 Torre Avenue, Suite 100, Cupertino, CA 95014 Coffee Society at the Cupertino Library LLC ASSIGNOR (Seller): ASSIGNEE (Buyer): LESSOR: Jackie Streeter, William Streeter and Dan St. Peter The City of Cupertino LEASE DEPOSIT: $5,000.00 CLOSING: Close of escrow for transfer of the Business from Assignor to Assignee LEASE: Lease Agreement from Lessor to Assignor for above Premises occupied by Business and dated June 21 r 2004. Assignor hereby assigns to Assignee all of his rights in the Lease including the Lease Deposit. Assignee hereby agrees to comply with all the terms and obligations of the Lease, and to hold Assignor harmless from any liability on it arising after Closing. Lessor consents to the above Assignment but no future assignments. Lessor does not release Assignor from any liability under the Lease. Lessor's consent is also contingent upon the execution of a personal guaranty executed by Ralph Flynn. This assignment is only effective upon the close of escrow on the sale of Coffee Society at the Cupertino Library to Jackie Streeter, William Streeter and Dan St. Peter. Each party warrants that he has carefully read and fully understands the provisions of the Lease. at ~e ("t~Y\o I Ctt.h{o( ~lCk. SlJJ~ Il.I-1.0~ David Knapp, City Man ger, Lessor Executed.on No"~rn.W ill '?60S ~~ Ralph ynn, Managing Member of Coffee Society at the Cupertino Library, LLC, Assignor Ralph FI ' n, as an indivi Guarantor GUARANTY AGREEMENT This guaranty is given by RALPH FLYNN ("Guarantor") to CITY OF CUPERTINO ("Obligee") to induce Obligee to enter into a lease with JACKIE STREETER and WILLIAM STREETER ("Obligor") dated ll_~~.:__lljn__, 2005, for the lease of property located at 10800 Torre Avenue, Suite 100, City of Cupertino, State of California. 1. Obligation Guaranteed. For valuable consideration, the undersigned Guarantor jointly and severally unconditionally guarantees to Obligee the following obligations of Obligor: Performance of all terms, provisions, and conditions of said lease above-described and any extension thereof, including the payment of any and all indebtedness of Obligor to Obligee. The word "indebtedness" is used in its most comprehensive sense and includes any and all rent, debts, obligations and liabilities of Obligor, whenever made, incurred, or created, whether voluntary or involuntary and however arising, whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, and whether Obligor may be liable individually or jointly with others, or whether recovery may be or become barred by any statute of limitations or otherwise become unenforceable. 2. Insolvency or Bankruptcy. Guarantor jointly and severally unconditionally guarantees the performance of all terms, provisions, and conditions of said lease and any and all indebtedness of Obligor to Obligee, whether or not due or payable by Obligor, on (a) the dissolution, insolvency, or business failure of, or any assignment for the benefit of creditors by, or commencement of any bankruptcy, reorganization, arrangement, moratorium, or other debtor relief proceedings by or against, Obligor or Guarantors, or (b) the appointment of a receiver for, or the attachment, restraint of, or making or levying of any court order or legal process affecting, the property of Obligor or Guarantor, and jointly and severally unconditionally promise to pay this indebtedness to Obligee or order, on demand, in lawful money of the United States. 3. Extent of Liability. The liability of Guarantor under this agreement is exclusive and independent of any security for or other guarantee of the indebtedness of Obligor, whether executed by Guarantors or any other party, and the liability of Guarantor under this Agreeme-nt is not affected or impaired by any of the following: a) Any indebtedness exceeding Guarantors' liability; b) Any direction of application by Obligor or any other party; c) Any other continuing or other guaranty, undertaking, or maximum liability of Guarantors or of any other party as to the indebtedness of Obligor; d) Any payment on or in reduction of any other guaranty or undertaking; e) Any dissolution, termination, or increase, decrease, or changes of personnel of any of the Guarantor; or f) Any payment made to the Obligee on the indebtedness that Obligee repays to Obligor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium, or other debtor relief proceeding. Guarantor waives any right to the deferral or modification of Guarantor's obligations by virtue of any such proceeding. 4. Joinder of Parties. The obligations of guarantors are joint and several, and independent of the obligations of Obligor. Obligee who may bring and prosecute a separate action or actions against Guarantor, whether it brings an action against Obligor or joins Obligor in any action or actions commenced. Guarantor waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting their liability under this agreement or the enforcement of this agreement. Any payment by Obligor or other circumstance that operates to toll any statute of limitations as to Obligor shall also operate to toll the statute of limitations as to Guarantor. Any Guarantor who is a married person agrees that recourse may be had against his or her separate property for his or her obligations under this agreement. 2 5. Change of Obligation. (a) Guarantor authorize Obligee, (whether or not after revocation or termination of this guaranty) without notice or demand (except any notice or demand that is required by statute and cannot be waived) and without affecting or impairing their liability, from time to time to do any of the following: (1) Renew, compromise, extend, accelerate, or otherwise change the time for performance of, or otherwise change the terms of the obligation; (2) Take and hold security for the performance of this guaranty or the obligation guaranteed, and exchange, enforce, waive and release any security; (3) Apply security and direct the order or manner of sale of security as Obligee in its discretion may determine; and (4) Release or substitute anyone or more of the Guarantors. (b) Obligee may without notice assign this guarantee in whole or in part. 6. Capacity and Authority. If Obligor is a corporation, partnership or other entity, Obligee need not inquire into or verify the powers of Obligor or the authority of those acting or purporting to act on behalf of Obligor, and this Guaranty shall be enforceable with respect to any indebtedness Obligee grants or extends to Obligor in reliance on the purported exercise of those powers or authority. 7. Subordination. Any indebtedness of Obligor now or later held by Guarantor is subordinated to the indebtedness of Obligor to Obligee, and all indebtedness of Obligor to Guarantor, if Obligee so requests, shall be collected, enforced, and received by Guarantors as trustees for Obligee and be paid over to Obligee on account of the indebtedness of Obligor to Obligee, without affecting or impairing in any manner the liability of Guarantors under the other provisions of this guaranty. 8. Waiver of Defenses. (a) Guarantor waives any right to require Obligee to (1) proceed against Obligor / (2) proceed against or 3 exhaust any security held from Obligor; or (3) pursue any other remedy in Obligee's power whatsoever. (b) Guarantor waives any defense based on or arising out of any defense of Obligor other than payment in full of the indebtedness, including without limitation any defense based on or arising out of the disability of Obligor, the unenforceability of the indebtedness from any cause, or the cessation from any cause of the liability of Obligor other than payment in full of the indebtedness. (c) Obligee, at its election, may foreclose on any security held by Obligee by one or more judicial sales, whether or not every aspect of any sale is commercially reasonable, or exercise any other right or remedy Obligee may have against Obligor, or any security, without affecting or impairing in any way the liability of Guarantors under this agreement, except to the extent that the indebtedness has been paid. (d) Guarantor waives all rights and defenses arising out of an election of remedies by Obligee, even though that election of remedies, such as nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Guarantor's rights of subrogation and reimbursement against the principal by operation of Code of Civil Procedure Section 580d or otherwise (e) Until all indebtedness of Obligor to Obligee is paid in full, even though that indebtedness is in excess of Guarantors' liability under this agreement, Guarantor shall have no right of subrogation, shall waive any right to enforce any remedy that Obligee now has or may later have against Obligor, and shall waive any benefit of, and any right to, participation in any security now or later held by Obligor. Guarantors waives all presentments, demands for performance, notices of protest, notices of dishonor, notices of acceptances of this guaranty, and notices of the existence, creation, or incurring of new or additional indebtedness. (f) Guarantor assumes all responsibility for keeping themselves informed of Obligor's financial condition and assets, and all other circumstances bearing on the risk of nonpayment of the indebtedness and the nature, scope and extent of the risks that Guarantor assumes and incurs under this agreement, and agree that Obligee shall have no duty to 4 advise Guarantor of information known to it regarding those circumstances or risks. 9. Attorneys' Fees and Costs. In addition to the amounts guaranteed under this agreement, Guarantor jointly and severally agree to pay reasonable attorneys' fees and all other costs and expenses incurred by Obligee in enforcing this guaranty in any action or proceeding arising out of, or relating to, this guaranty. 10. Liens and Setoffs. In addition to all liens on, and rights of setoff against the money, securities or other property of Guarantor given to Obligee by law, Obligee shall have a lien on and a right of setoff against all money, securities and other property of Guarantors now or later in the possession of Obligee, whether held in a general or special account or for safekeeping or otherwise; and every lien and right of setoff may be exercised without demand on or notice to Guarantors. 11. Nonwaiver of Rights of Obligee. No right or power of Obligee under this agreement shall be deemed to have been waived by any act or conduct on the part of Obligee, or by any neglect to exercise that right or power, or by any delay in so doing; and every right or power shall continue in full force and effect until specifically waived or released by an instrument in writing executed by Obligee. 12. Singular and Plural. In all cases when there is but a single Obligor or a single Guarantor, all words used in the plural shall be deemed to have been used in the singular if the context and construction so require; and when there is more than one Obligor, or when this guaranty is executed by more than one Guarantor, the word "Obligor" and the word "Guarantor" respectively shall mean all and anyone or more of them, 13. Effect on Heirs and Assigns. This guaranty and the liability and obligations of Guarantors under this agreement are binding on Guarantor and their respective heirs, executors, and assigns, and inure to the benefit of and are enforceable by Obligor and its successors, transferees, and assigns. 14. Notices. Any notice given by any party under this guaranty shall be personally delivered or sent by United States mail, postage prepaid, and addressed to Obligee or Guarantor at their respective 5 addresses for notices indicated below. Guarantor and Obligee may change the place to which notices, requests, and other communications are to be sent to them by giving written notice of that change to the other. 15. Governing Law and Modification. This guaranty shall be deemed to be made under, and shall be governed by, the laws of the State of California in all respects, including matters of construction, validity, performance, and enforcement, and its terms and provisions may not be waived, altered, modified, or amended except in writing duly signed by an authorized officer of Obligee and by Guarantors. 16. Invalidity. If any provision of this guaranty contravenes or is held invalid under the laws of any jurisdiction, this guaranty shall be construed as though it did not contain that provision, and the rights and liabilities of the parties to this agreement shall be construed and enforced accordingly. 17. Headings. Headings In this agreement are for convenience only and shall not be used to interpret or construe its provisions. 18. Counterparts, This agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned have executed this Guaranty on ___1LtZ..'iL.ebj.;...tt___~.!!d___, 2005. GUARANTOR ~~~ Ralph Flynn Add ress for Notices to Guarantor: Ralph Flynn JjfQQ__Q.!::.I2_J:~ ~ITP _CK.ILi._..It.~..:L_____ ll)j c-~nj, CA. 95c) 33 --------------------------------- 6 OBLIGEE The City of Cupertino By:~l' l':f,o",- David Knapp, City Manager Address for Notices to Obligee: Cupertino City Hall Attn: _J1,!'~-~~~-~ 10300 Torre Avenue Cupertino, CA 95014-3255 Attest: , L' -;, ~~- 7 0=>-1.2.3 ASSIGNMENT OF LEASE The following definitions and designations shall apply in Assignment, without regard to number or gender: BUSINESS: PREMISES: Coffee Society at the Cupertino Library ASSIGNOR (Seller): ASSIGNEE (Buyer): LESSOR: 10800 Torre Avenue, Suite 100, Cupertino, CA 95014 Coffee Society at the Cupertino Library LLC Jackie Streeter, William Streeter and Dan St. Peter The City of Cupertino LEASE DEPOSIT: $5,000.00 CLOSING: Close of escrow for transfer of the Business from Assignor to Assignee LEASE: Lease Agreement from Lessor to Assignor for above Premises occupied by Business and dated June 21, 2004. Assignor hereby assigns to Assignee all of his rights in the Lease including the Lease Deposit. Assignee hereby agrees to comply with all the terms and obligations of the Lease, and to hold Assignor harmless from any liability on it arising after Closing. Lessor consents to the above Assignment but no future assignments. Lessor does not release Assignor from any liability under the Lease. Lessor's consent is also contingent upon the execution of a personal guaranty executed by Ralph Flynn. This assignment is only effective upon the close of escrow on the sale of Coffee Society at the Cupertino Library to Jackie Streeter, William Streeter and Dan St. Peter. Each party warrants that he has carefully read and fully understands the provisions of the Lease. Executed on (r, 1 c.;- , '0 ~ ~4~/ Ralph ynn, Managing Member of Coffee Society at the Cupertino Library, LLC, Assignor Ralph FI n, as an indivi Guarantor at G,f~ ~J~ (-{dJ ~ QJJ~ David Knapp, City Mana~sor