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EXHIBIT 99.4
FORM OF GUARANTY
This Guaranty made as of December 23, 1997, by Xxxxxxx Financing
Partnership, a Delaware general partnership and Xxxxxxx Real Estate, Inc., a
Maryland corporation (collectively, "Guarantor"), to and for the benefit of The
First National Bank of Chicago, a national banking association, individually
("First Chicago"), and as administrative agent for itself and the lenders listed
on the signature pages of the Loan Agreement (as defined below) and their
respective successors and assigns (collectively, "Lender").
RECITALS
X. Xxxxxxx Operating Limited Partnership, a Delaware limited partnership
("Borrower"), and Guarantor have requested that Lender make an unsecured
revolving credit facility available to Borrower in the aggregate principal
amount of up to $200,000,000, subject to future increase to $250,000,000
("Facility").
B. Lender has agreed to make available the Facility to Borrower pursuant
to the terms and conditions set forth in an Unsecured Revolving Credit Agreement
bearing even date herewith between Borrower, First Chicago and Guarantors ("Loan
Agreement"). All capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to such terms in the Loan Agreement.
C. Borrower has executed and delivered to Lender Promissory Notes of
even date herewith in the aggregate principal amount of $200,000,000, together
with Competitive Bid Notes, as evidence of its indebtedness to Lender with
respect to the Facility (the promissory notes described above, together with any
amendments or allonges thereto, or restatements, replacements or renewals
thereof, and/or new promissory notes to new Lenders under the Loan Agreement,
including without limitation notes increasing the Facility to $250,000,000 in
the aggregate, are collectively referred to herein as the "Note").
D. Guarantors are a general partner of Borrower and a general
partnership in which the Borrower is a general partner, and therefore, Guarantor
will derive financial benefit from the
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Facility evidenced by the Note, Loan Agreement and the other Loan Documents. The
execution and delivery of this Guaranty by Guarantor is a condition precedent to
the performance by Lender of its obligations under the Loan Agreement.
AGREEMENTS
NOW, THEREFORE, Guarantor, in consideration of the matters described in
the foregoing Recitals, which Recitals are incorporated herein and made a part
hereof, and for other good and valuable consideration, hereby agrees as follows:
1. Guarantor absolutely, unconditionally, and irrevocably guarantees to
Lender:
(a) the full and prompt payment of the principal of and interest
on the Note when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter, and the prompt payment of all
sums which may now be or may hereafter become due and owing under the
Note, the Loan Agreement, and the other Loan Documents;
(b) the payment of all Enforcement Costs (as hereinafter defined
in Paragraph 7 hereof); and
(c) the full, complete, and punctual observance, performance,
and satisfaction of all of the obligations, duties, covenants, and
agreements of Borrower under the Loan Agreement and the Loan Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Facility Indebtedness." All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations."
2. In the event of any default by Borrower in making payment of the
Facility Indebtedness, or in performance of the Obligations, as aforesaid, in
each case beyond the expiration of any applicable grace period, Guarantor
agrees, on demand by Lender or the holder of the Note, to pay all the Facility
Indebtedness and to perform all the Obligations as are or then or thereafter
become due and owing or are to be performed under the terms of the Note, the
Loan Agreement and the other Loan Documents, and to pay any reasonable expenses
incurred by Lender in protecting, preserving, or defending its interest in the
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Property or in connection with the Facility or under any of the Loan Documents,
including, without limitation, all reasonable attorneys' fees and costs. Lender
shall have the right, at its option, either before, during or after pursuing any
other right or remedy against Borrower or Guarantor, to perform any and all of
the Obligations by or through any agent, contractor or subcontractor, or any of
their agents, of its selection, all as Lender in its sole discretion deems
proper, and Guarantor shall indemnify and hold Lender free and harmless from and
against any and all loss, damage, cost, expense, injury, or liability Lender may
suffer or incur in connection with the exercise of its rights under this
Guaranty or the performance of the Obligations, except to the extent the same
arises as a result of the gross negligence or wilful misconduct of Lender.
All of the remedies set forth herein and/or provided by any of the Loan
Documents or law or equity shall be equally available to Lender, and the choice
by Lender of one such alternative over another shall not be subject to question
or challenge by Guarantor or any other person, nor shall any such choice be
asserted as a defense, set-off, or failure to mitigate damages in any action,
proceeding, or counteraction by Lender to recover or seeking any other remedy
under this Guaranty, nor shall such choice preclude Lender from subsequently
electing to exercise a different remedy. The parties have agreed to the
alternative remedies hereinabove specified in part because they recognize that
the choice of remedies in the event of a failure hereunder will necessarily be
and should properly be a matter of business judgment, which the passage of time
and events may or may not prove to have been the best choice to maximize
recovery by Lender at the lowest cost to Borrower and/or Guarantor. It is the
intention of the parties that such choice by Lender be given conclusive
effect regardless of such subsequent developments.
3. Guarantor does hereby waive (i) notice of acceptance of this Guaranty
by Lender and any and all notices and demands of every kind which may be
required to be given by any statute, rule or law, (ii) any defense, right of
set-off or other claim which Guarantor may have against the Borrower or which
Guarantor or Borrower may have against Lender or the holder of the Note (other
than payment of the Facility Indebtedness or performance of the Obligations),
(iii) presentment for payment, demand for payment (other than as provided for in
Paragraph 2 above), notice of nonpayment (other than as provided for in
Paragraph 2 above) or dishonor, protest and notice of protest, diligence in
collection
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and any and all formalities which otherwise might be legally required
to charge Guarantor with liability, (iv) any failure by Lender to inform
Guarantor of any facts Lender may now or hereafter know about Borrower, the
Facility, or the transactions contemplated by the Loan Agreement, it being
understood and agreed that Lender has no duty so to inform and that the
Guarantor is fully responsible for being and remaining informed by the Borrower
of all circumstances bearing on the existence or creation, or the risk of
nonpayment of the Facility Indebtedness or the risk of nonperformance of the
Obligations, and (v) any and all right to cause a marshalling of assets of the
Borrower or any other action by any court or governmental body with respect
thereto, or to cause Lender to proceed against any other security given to
Lender in connection with the Facility Indebtedness or the Obligations. Credit
may be granted or continued from time to time by Lender to Borrower without
notice to or authorization from Guarantor, regardless of the financial or other
condition of the Borrower at the time of any such grant or continuation. Lender
shall have no obligation to disclose or discuss with Guarantor its assessment of
the financial condition of Borrower. Guarantor acknowledges that no
representations of any kind whatsoever have been made by Lender to Guarantor. No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon Lender except as expressly set forth in a writing duly signed and
delivered on behalf of Lender. Guarantor further agrees that any exculpatory
language contained in the Loan Agreement and the Note shall in no event apply to
this Guaranty, and will not prevent Lender from proceeding against Guarantor to
enforce this Guaranty.
4. Guarantor further agrees that Guarantor's liability as guarantor shall
in nowise be impaired by any renewals or extensions which may be made from time
to time, with or without the knowledge or consent of Guarantor of the time for
payment of interest or principal under the Note or by any forbearance or delay
in collecting interest or principal under the Note, or by any waiver by Lender
under the Loan Agreement or any other Loan Documents, or by Lender's failure or
election not to pursue any other remedies it may have against Borrower, or by
any change or modification in the Note, Loan Agreement or any other Loan
Documents, or by the acceptance by Lender of any additional security or any
increase, substitution or change therein, or by the release by Lender of any
security or any withdrawal thereof or decrease therein, or by the application of
payments received from any source to the payment of any obligation other than
the
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Facility Indebtedness, even though Lender might lawfully have elected to apply
such payments to any part or all of the Facility Indebtedness, it being
theintent hereof that Guarantor shall remain liable as principal for payment of
the Facility Indebtedness and performance of the Obligations until all
indebtedness has been paid in full and the other terms, covenants and conditions
of the Loan Agreement and other Loan Documents and this Guaranty have been
performed and the Aggregate Commitment terminated, notwithstanding any act or
thing which might otherwise operate as a legal or equitable discharge of a
surety. Guarantor further understands and agrees that Lender may at any time
enter into agreements with Borrower to amend and modify the Note, Loan Agreement
or other Loan Documents, or any thereof, and may waive or release any provision
or provisions of the Note, the Loan Agreement and other Loan Documents or any
thereof, and, with reference to such instruments, may make and enter into any
such agreement or agreements as Lender and Borrower may deem proper and
desirable, without in any manner impairing this Guaranty or any of Lender's
rights hereunder or any of the Guarantor's obligations hereunder.
5. This is an absolute, unconditional, complete, present and continuing
guaranty of payment and performance and not of collection. Guarantor agrees that
this Guaranty may be enforced by Lender without the necessity at any time of
resorting to or exhausting any other security or collateral given in connection
herewith or with the Note, the Loan Agreement, or any of the other Loan
Documents, or resorting to any other guaranties, and Guarantor hereby waives the
right to require Lender to join Borrower in any action brought hereunder or to
commence any action against or obtain any judgment against Borrower or to pursue
any other remedy or enforce any other right. Guarantor further agrees that
nothing contained herein or otherwise shall prevent Lender from pursuing
concurrently or successively all rights and remedies available to it at law
and/or in equity or under the Note, Loan Agreement or any other Loan Documents,
and the exercise of any of its rights or the completion of any of its remedies
shall not constitute a discharge of any of Guarantor's obligations hereunder, it
being the purpose and intent of the Guarantor that the obligations of such
Guarantor hereunder shall be primary, absolute, independent and unconditional
under any and all circumstances whatsoever. Neither Guarantor's obligations
under this Guaranty nor any remedy for the enforcement thereof shall be
impaired, modified, changed or released in any manner whatsoever by any
impairment, modification, change, release or
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limitation of the liability of Borrower under the Note, Loan Agreement or other
Loan Documents or by reason of Borrower's bankruptcy or by reason of any
creditor or bankruptcy proceeding instituted by or against Borrower. This
Guaranty shall continue to be effective and be deemed to have continued in
existence or be reinstated (as the case may be) if at any time payment of all or
any part of any sum payable pursuant to the Note, Loan Agreement or any other
Loan Document is rescinded or otherwise required to be returned by the payee
upon the insolvency, bankruptcy, or reorganization of the payor, all as though
such payment to Lender had not been made, regardless of whether Lender contested
the order requiring the return of such payment. The obligations of Guarantor
pursuant to the preceding sentence shall survive any termination, cancellation,
or release of this Guaranty.
6. This Guaranty shall be assignable by Lender to any assignee of all or
a portion of Lender's rights under the Loan Documents.
7. If: (i) this Guaranty, the Note or any other Loan Document is placed
in the hands of an attorney for collection or is collected through any legal
proceeding; (ii) an attorney is retained to represent Lender in any bankruptcy,
reorganization, receivership, or other proceedings affecting creditors' rights
and involving a claim under this Guaranty, the Note, the Loan Agreement, or any
Loan Document; (iii) an attorney is retained to provide advice or other
representation with respect to the Loan Documents in connection with an
enforcement action or potential enforcement action; or (iv) an attorney is
retained to represent Lender in any other legal proceedings whatsoever in
connection with this Guaranty, the Note, the Loan Agreement, any of the Loan
Documents, or any property subject thereto (other than any action or proceeding
brought by any Lender or participant against the Administrative Agent (as
defined in the Loan Agreement) alleging a breach by the Administrative Agent of
its duties under the Loan Documents), then Guarantor shall pay to Lender upon
demand all reasonable attorney's fees, costs and expenses, including, without
limitation, court costs, filing fees, recording costs, expenses of foreclosure,
title insurance premiums, survey costs, minutes of foreclosure, and all other
costs and expenses incurred in connection therewith (all of which are referred
to herein as "Enforcement Costs"), in addition to all other amounts due
hereunder.
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8. The parties hereto intend that each provision in this Guaranty
comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Guaranty is found by a court of law to be in
violation of any applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should
declare such portion, provision or provisions of this Guaranty to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent of
all parties hereto that such portion, provision or provisions shall be given
force to the fullest possible extent that they are legal, valid and enforceable,
that the remainder of this Guaranty shall be construed as if such illegal,
invalid, unlawful, void or unenforceable portion, provision or provisions were
not contained therein, and that the rights, obligations and interest of Lender
or the holder of the Note under the remainder of this Guaranty shall continue in
full force and effect.
9. Any indebtedness of Borrower to Guarantor now or hereafter existing is
hereby subordinated to the Facility Indebtedness. Guarantor agrees that until
the entire Facility Indebtedness has been paid in full and the Aggregate
Commitment has been terminated, at such times as an Event of Default under the
Loan Agreement may have occurred and be continuing, (i) Guarantor will not seek,
accept, or retain for Guarantor's own account, any payment from Borrower on
account of such subordinated debt, and (ii) any such payments to Guarantor on
account of such subordinated debt shall be collected and received by Guarantor
in trust for Lender and shall be paid over to Lender on account of the Facility
Indebtedness without impairing or releasing the obligations of Guarantor
hereunder.
10. Unless and until the Facility Indebtedness has been paid in full and
the Aggregate Commitment has been terminated, Guarantor shall not assert any
claim (within the meaning of 11 U.S.C. Section (101) which Guarantor may have
against Borrower arising from a payment made by Guarantor under this Guaranty
and agrees not to assert or take advantage of any subrogation rights of
Guarantor or Lender or any right of Guarantor or Lender to proceed against
(i) Borrower for reimbursement, or (ii) any other guarantor or any collateral
security or guaranty or right of offset held by Lender for the payment of the
Facility Indebtedness and performance of the Obligations, nor shall Guarantor
seek or be entitled to seek any contribution or
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reimbursement from Borrower or any other guarantor in respect of payments made
by Guarantor hereunder. It is expressly understood that the waivers and
agreements of Guarantor set forth above constitute additional and cumulative
benefits given to Lender for its security and as an inducement for its extension
of credit to Borrower.
11. Any amounts received by Lender from any source on account of any
indebtedness may be applied by Lender toward the payment of such indebtedness,
and in such order of application, as Lender may from time to time elect.
12. The Guarantor hereby submits to personal jurisdiction in the State of
Illinois for the enforcement of this Guaranty and waives any and all personal
rights to object to such jurisdiction for the purposes of litigation to enforce
this Guaranty. Guarantor hereby consents to the jurisdiction of either the
Circuit Court of Xxxx County, Illinois, or the United States District Court for
the Northern District of Illinois, in any action, suit, or proceeding which
Lender may at any time wish to file in connection with this Guaranty or any
related matter. Guarantor hereby agrees that an action, suit, or proceeding to
enforce this Guaranty may be brought in any state or federal court in the State
of Illinois and hereby waives any objection which Guarantor may have to the
laying of the venue of any such action, suit, or proceeding in any such court;
provided, however, that the provisions of this Paragraph shall not be deemed to
preclude Lender from filing any such action, suit, or proceeding in any other
appropriate forum.
13. Xxxxxxx Financing Partnership and Lender agree that such Guarantor's
obligations hereunder shall not exceed the greater of: (i) the aggregate amount
of all monies received, directly or indirectly, by such Guarantor from Borrower
after the date hereof (whether by loan, capital infusion or other means), or
(ii) the maximum amount of the Facility Indebtedness not subject to avoidance
under Title 11 of the United States Code, as same may be amended from time to
time, or any applicable state law (the "Bankruptcy Code"). To that end, to the
extent such obligations would otherwise be subject to avoidance under the
Bankruptcy Code if such Guarantor is not deemed to have received valuable
consideration, fair value or reasonably equivalent value for its obligations
hereunder, such Guarantor's obligations hereunder shall be reduced to that
amount which, after giving effect thereto, would not render such Guarantor
insolvent, or leave such
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Guarantor with an unreasonably small capital to conduct its business, or cause
the Guarantor to have incurred debts (or intended to have incurred debts) beyond
its ability to pay such debts as they mature, as such terms are determined, and
at the time such obligations are deemed to have been incurred, under the
Bankruptcy Code. In the event Guarantor shall make any payment or payments under
this Guaranty each other Guarantor shall contribute to such paying Guarantor an
amount equal to such non-paying Guarantor's pro rata share (based on their
respective maximum liabilities hereunder) of such payment or payments made by
such paying Guarantor, provided that such contribution right shall be
subordinate and junior in right of payment to all the Guaranteed Obligations to
Lender.
14. All notices and other communications provided to any party hereto
under this Agreement or any other Loan Document shall be in writing or by telex
or by facsimile and addressed or delivered to such party at its address set
forth below or at such other address as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given when received; any notice, if transmitted
by telex or facsimile, shall be deemed given when transmitted (answerback
confirmed in the case of telexes). Notice may be given as follows:
To the Guarantor:
Chief Financial Officer
Xxxxxxx Real Estate, Inc.
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Xx.
With a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
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To the Lender:
c/o The First National Bank of Chicago, as agent
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Finance Department
Telecopy: (000) 000-0000
With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
15. This Guaranty shall be binding upon the heirs, executors, legal and
personal representatives, successors and assigns of Guarantor and shall inure to
the benefit of Lender's successors and assigns. The liability of the entities
comprising the Guarantor hereunder shall be joint and several.
16. This Guaranty shall be construed and enforced under the internal laws
of the State of Illinois.
17. GUARANTOR AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR
ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS GUARANTY AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
IN WITNESS WHEREOF, Guarantor has delivered this Guaranty in the State
of Illinois as of the date first written above.
XXXXXXX FINANCING PARTNERSHIP
By: XXXXXXX FINANCING CORP., its managing
general partner
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By:
Its:
XXXXXXX REAL ESTATE, INC.
By:
Its:
