GUARANTY OF PAYMENT AND PERFORMANCE
EXHIBIT 10.4
This GUARANTY OF PAYMENT AND PERFORMANCE dated as of April 10, 2007 (this “Guaranty”), is
executed by XXXXXXX MALL PROPERTIES, INC., a Maryland corporation (“Guarantor”), to and for the
benefit of KIMCO CAPITAL CORP., a Delaware corporation (“Lender”).
RECITALS:
A. Lender has agreed to loan the principal amount of Twenty-Five Million and 00/100 Dollars
($25,000,000.00) or such lesser principal amount as may be outstanding thereunder (the “Loan”) to
Xxxxxxx Equities Operating Partnership, LP, a Delaware limited partnership (the “Borrower”). All
terms not otherwise defined herein shall have the meanings set forth the Note (as defined below).
B. As a condition precedent to Lender’s extension of the Loan to Borrower and in consideration
therefor, Lender has required the execution and delivery of (i) this Guaranty by Guarantor, (ii)
that certain Promissory Note dated even date herewith, executed by Borrower and made payable to the
order of Lender (the “Note”), evidencing the Loan, and (iii) the other Loan Documents (as defined
in the Note).
C. Guarantor is an affiliate of Borrower and, having a financial interest in Borrower, has
agreed to execute and deliver this Guaranty to Lender.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, Guarantor hereby agrees as follows:
AGREEMENTS:
1. Guaranty. Guarantor hereby unconditionally, absolutely and irrevocably guaranties
to Lender the punctual payment and performance when due, whether at stated maturity or by
acceleration or otherwise, of the indebtedness and other obligations of Borrower to Lender
evidenced by the Note and any other amounts that may become owing by the Borrower under the Loan
Documents, including any amendments, additions, substitutions, supplements, extensions or renewals
of the foregoing (such indebtedness, obligations and other amounts are hereinafter referred to as
“Payment Obligations”) and the prompt and proper performance by Borrower of all of its obligations
to Lender under the Loan Documents (collectively the “Non-Payment Obligations”). This Guaranty is
a present and continuing guaranty of payment and performance and not of collectability, and Lender
shall not be required to prosecute collection, enforcement or other remedies against Borrower or
any other guarantor of the Payment Obligations or Non-Payment Obligations, or to enforce or resort
to any collateral for the repayment of the Payment Obligations or other rights or remedies
pertaining thereto, before calling on Guarantor for payment or performance. The Guarantor further
specifically agrees that if for any reason Borrower shall fail or be unable to pay, punctually and
fully, any of the Payment Obligations, Guarantor shall pay such obligations to Lender in full
immediately upon demand. One or more successive actions may be brought against Guarantor, as often
as Lender deems advisable, until all of the Payment
Obligations are paid and performed in full. The Payment Obligations, the Non-Payment
Obligations, together with all other payment and performance obligations of the Guarantor
hereunder, are referred to herein as the “Obligations”. Without limiting the foregoing, the
undersigned absolutely, irrevocably and unconditionally indemnifies and saves Lender harmless from
and against all liabilities, suits, proceedings, actions, claims and assertions, charges, demands,
delays, injuries and expenses (including reasonable attorneys fees and disbursements) which are
incurred by Lender as a result of any allegation or determination that the Obligations involve a
fraudulent conveyance, transfer or obligation under federal or state law.
2. Representations and Warranties. The following shall constitute representations and
warranties of Guarantor, and Guarantor hereby acknowledges that Lender intends to make the Loan in
reliance thereon:
(a) Guarantor is not in default, and no event has occurred which, with the passage of
time and/or the giving of notice, would constitute a default, under any agreement to which
Guarantor is a party, the effect of which will impair performance by Guarantor of its
obligations under this Guaranty. Neither the execution and delivery of this Guaranty nor
compliance with the terms and provisions hereof will violate any applicable law, rule,
regulation, judgment, decree or order, or will conflict with or result in any breach of any
of the terms, covenants, conditions or provisions of any indenture, mortgage, deed of trust,
instrument, document, agreement or contract of any kind that creates, represents, evidences
or provides for any lien, charge or encumbrance upon any of the property or assets of
Guarantor, or any other indenture, mortgage, deed of trust, instrument, document, agreement
or contract of any kind to which Guarantor is a party or to which Guarantor or the property
of Guarantor may be subject.
(b) There are no litigation, arbitration, governmental or administrative proceedings,
actions, examinations, claims or demands pending, or to the knowledge of Guarantor,
threatened that could adversely affect performance by Guarantor of its obligations under
this Guaranty.
(c) Neither this Guaranty nor any statement or certification as to facts previously
furnished or required herein to be furnished to the Lender by Guarantor, contains any
material inaccuracy or untruth in any representation, covenant or warranty or omits to state
a fact material to this Guaranty.
(d) Guarantor represents and warrants that it complies with all of the requirements
necessary for classification for federal income tax purposes as a Real Estate Investment
Trust within the meaning of Section 856 of the Internal Revenue Code, including without
limitation, compliance with the requirements regarding the composition of its assets and
character of its gross income.
(e) Guarantor is informed of the financial condition of Borrower and of all other
circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment or
performance of the Obligations.
2
3. Continuing Guaranty. Guarantor agrees that performance of the Obligations by
Guarantor shall be a primary obligation, shall not be subject to any counterclaim, set-off,
abatement, deferment or defense based upon any claim that Guarantor may have against Lender,
Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in
full force and effect without regard to, and shall not be released, discharged or affected in any
way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof),
including without limitation:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan
Documents, including, without limitation, any modification of the interest rate(s) described
therein;
(c) any furnishing, exchange, substitution or release of any collateral securing
repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of Borrower, Guarantor, any other
guarantor of the Obligations or Lender to conform or comply with any term of any of the Loan
Documents or any failure of Lender to give notice of any Event of Default (as defined in the
Note);
(e) any waiver, compromise, release, settlement or extension of time of payment or
performance or observance of any of the obligations or agreements contained in any of the
Loan Documents;
(f) any action or inaction by Lender under or in respect of any of the Loan Documents,
any failure, lack of diligence, omission or delay on the part of Lender to perfect, enforce,
assert or exercise any lien, security interest, right, power or remedy conferred on it in
any of the Loan Documents, or any other action or inaction on the part of Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement,
readjustment, assignment for the benefit of creditors, composition, receivership,
liquidation, marshalling of assets and liabilities or similar events or proceedings with
respect to Borrower, Guarantor or any other guarantor of the Obligations, as applicable, or
any of their respective property or creditors, or any action taken by any trustee or
receiver or by any court in any such proceeding;
(h) any merger or consolidation of Borrower into or with any entity, or any sale, lease
or transfer of any of the assets of Borrower, Guarantor or any other guarantor of the
Obligations to any other person or entity;
(i) any change in the ownership of Borrower or any change in the relationship between
Borrower, Guarantor or any other guarantor of the Obligations, or any termination of any
such relationship;
3
(j) any release or discharge by operation of law of Borrower, Guarantor or any other
guarantor of the Obligations from any obligation or agreement contained in any of the Loan
Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or
dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might
constitute a legal or equitable defense or discharge of the liabilities of a guarantor or
surety or which otherwise might limit recourse against Borrower or Guarantor to the fullest
extent permitted by law.
4. Waivers. The Guarantor expressly and unconditionally waives (i) notice of any of
the matters referred to in Section 3 above, (ii) all notices which may be required by statute, rule
of law or otherwise, now or hereafter in effect, to preserve intact any rights against Guarantor,
including, without limitation, any demand, presentment and protest, proof of notice of non-payment
under any of the Loan Documents and notice of any Event of Default or any failure on the part of
Borrower, Guarantor or any other guarantor of the Obligations to perform or comply with any
covenant, agreement, term or condition of any of the Loan Documents, (iii) any right to the
enforcement, assertion or exercise against Borrower, Guarantor or any other guarantor of the
Obligations of any right or remedy conferred under any of the Loan Documents, (iv) any requirement
of diligence on the part of any person or entity, (v) any requirement on the part of Lender to
exhaust any remedies or to mitigate the damages resulting from any default under any of the Loan
Documents, and (vi) any notice of any sale, transfer or other disposition of any right, title or
interest of Lender under any of the Loan Documents.
5. Subordination. Guarantor agrees that any and all present and future debts and
obligations of Borrower to Guarantor are hereby subordinated to the claims of Lender and are hereby
assigned by Guarantor to Lender as security for the Obligations and the obligations of Guarantor
under this Guaranty.
6. Subrogation Waiver. Until the Obligations are paid in full and all periods under
applicable bankruptcy law for the contest of any payment by Guarantor or Borrower as a preferential
or fraudulent payment have expired, Guarantor knowingly, and with advice of counsel, waives,
relinquishes, releases and abandons all rights and claims to indemnification, contribution,
reimbursement, subrogation and payment which Guarantor may now or hereafter have by and from
Borrower and the successors and assigns of Borrower, for any payments made by Guarantor to Lender,
including, without limitation, any rights which might allow Borrower, Borrower’s successors, a
creditor of Borrower, or a trustee in bankruptcy of Borrower to claim in bankruptcy or any other
similar proceedings that any payment made by Borrower or Borrower’s successors and assigns to
Lender was on behalf of or for the benefit of Guarantor and that such payment is recoverable by
Borrower, a creditor or trustee in bankruptcy of Borrower as a preferential payment, fraudulent
conveyance, payment of an insider or any other classification of payment which may otherwise be
recoverable from Lender.
7. Reinstatement. The obligations of Guarantor pursuant to this Guaranty shall
continue to be effective or automatically be reinstated, as the case may be, if at any time payment
of any of the Obligations or the obligations of Guarantor under this Guaranty is rescinded or
otherwise must be restored or returned by Lender upon the insolvency, bankruptcy, dissolution,
4
liquidation or reorganization of Guarantor or Borrower, by reason of any judgment, decree or
order of any court or administrative body or otherwise, all as though such payment had not been
made.
8. Financial Statements. Guarantor represents and warrants to Lender that (a) any
financial statements of Guarantor submitted to Lender on or prior to the date hereof are true,
complete and correct in all material respects, disclose all actual and contingent liabilities, and
fairly present the financial condition of Guarantor as of their respective dates, and do not
contain any untrue statement of a material fact or omit to state a fact material to the financial
statements submitted or this Guaranty, and (b) no material adverse change has occurred in any such
financial statements from the dates thereof until the date hereof. Upon Lender’s request,
Guarantor shall furnish to Lender financial statements in form and substance reasonably acceptable
to Lender, including, but not limited to, federal income tax returns, certified by Guarantor as
true, complete and correct.
9. Enforcement Costs. If: (a) this Guaranty, is placed in the hands of one or more
attorneys for collection or is collected through any legal proceeding; (b) one or more attorneys is
retained to represent Lender in any bankruptcy, reorganization, receivership or other proceedings
affecting creditors’ rights and involving a claim under this Guaranty, or (c) one or more attorneys
is retained to represent Lender in any other proceedings whatsoever in connection with this
Guaranty, then Guarantor shall pay to Lender upon demand all fees, costs and expenses incurred by
Lender in connection therewith, including, without limitation, reasonable attorney’s fees, court
costs and filing fees (all of which are referred to herein as the “Enforcement Costs”), in addition
to all other amounts due hereunder.
10. Successors and Assigns; Joint and Several Liability. This Guaranty shall inure to
the benefit of Lender and its successors and assigns. This Guaranty shall be binding on Guarantor
and the heirs, legatees, successors and assigns of Guarantor. It is agreed that the liability of
Guarantor hereunder is several and independent of any other guarantees or other obligations at any
time in effect with respect to the Obligations or any part thereof and that the liability of
Guarantor hereunder may be enforced regardless of the existence, validity, enforcement or
non-enforcement of any such other guarantees or other obligations.
11. No Waiver of Rights. No delay or failure on the part of Lender to exercise any
right, power or privilege under this Guaranty or any of the other Loan Documents shall operate as a
waiver thereof, and no single or partial exercise of any right, power or privilege shall preclude
any other or further exercise thereof or the exercise of any other power or right, or be deemed to
establish a custom or course of dealing or performance between the parties hereto. The rights and
remedies herein provided are cumulative and not exclusive of any rights or remedies provided by
law. No notice to or demand on Guarantor in any case shall entitle Guarantor to any other or
further notice or demand in the same, similar or other circumstance.
12. Modification. The terms of this Guaranty may be waived, discharged, or terminated
only by an instrument in writing signed by the party against which enforcement of the change,
waiver, discharge or termination is sought. No amendment, modification, waiver or other change of
any of the terms of this Guaranty shall be effective without the prior written consent of the
Lender.
5
13. Joinder. Any action to enforce this Guaranty may be brought against Guarantor
without any reimbursement or joinder of Borrower or any other guarantor of the Obligations in such
action.
14. Severability. If any provision of this Guaranty is deemed to be invalid by reason
of the operation of law, or by reason of the interpretation placed thereon by any administrative
agency or any court, Guarantor and Lender shall negotiate an equitable adjustment in the provisions
of the same in order to effect, to the maximum extent permitted by law, the purpose of this
Guaranty and the validity and enforceability of the remaining provisions, or portions or
applications thereof, shall not be affected thereby and shall remain in full force and effect.
15. Applicable Law. This Guaranty is governed as to validity, interpretation, effect
and in all other respects by laws and decisions of the State of New York.
16. Notices. All notices, communications and waivers under this Guaranty shall be in
writing and shall be (a) delivered in person, (b) mailed, postage prepaid, either by registered or
certified mail, return receipt requested, or (c) by overnight express carrier, addressed in each
case as follows:
| To Lender: | x/x Xxxxx Xxxxxx Xxxxxxxxxxx | |||
| 0000 Xxx Xxxx Xxxx Road Suite 100 | ||||
| New Hyde Park, New York 11042 | ||||
| Attention: Xxxxx Xxxxxxxxxx | ||||
| Facsimile No.: (000) 000-0000 and | ||||
| Attention: Xxxxx Xxxxx | ||||
| Facsimile No.: 000-000-0000 and | ||||
| c/o Kimco Realty Corporation | ||||
| 0000 Xxxxxxxxxx Xxxxxx | ||||
| Xxxxx 000 | ||||
| Xxxxx, XX 00000 | ||||
| Attention: Xxxx Xxxxxxxxx | ||||
| Facsimile No.: 000-000-0000 | ||||
| To Guarantor: | 0000 Xxxxxxxx Xxxxxxxxx | |||
| Xxxxx 000 Xxxxx Xxxx, Xxx Xxxx 00000 | ||||
| Attention: Xxxxx Xxxxxxx | ||||
| Facsimile No.: (000) 000-0000 | ||||
| With a copy to: | ||||
| Xxxxxxx Mall Properties, Inc. | ||||
| 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000 | ||||
| Xxxxxxx, Xxxxxxx 00000 | ||||
| Attention: Legal Affairs | ||||
| Facsimile No. 000-000-0000 |
6
or to any other address as to any of the parties hereto, as such party shall designate in a written
notice to the other parties hereto. All notices sent pursuant to the terms of this Section shall
be deemed received (i) if personally delivered, then on the date of delivery, (ii) if sent by
overnight, express carrier, then on the next federal banking day immediately following the day
sent, or (iii) if sent by registered or certified mail, then on the earlier of the third federal
banking day following the day sent or when actually received.
17. CONSENT TO JURISDICTION. TO INDUCE LENDER TO ACCEPT THIS GUARANTY, GUARANTOR
IRREVOCABLY AGREES THAT, SUBJECT TO LENDER’S SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS
IN ANY WAY ARISING OUT OF OR RELATED TO THIS GUARANTY WILL BE LITIGATED IN COURTS HAVING SITUS IN
NEW YORK, NEW YORK. GUARANTOR HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY COURT LOCATED
WITHIN NEW YORK, NEW YORK, WAIVES PERSONAL SERVICE OF PROCESS AND AGREES THAT ALL SUCH SERVICE OF
PROCESS MAY BE MADE BY REGISTERED MAIL DIRECTED TO GUARANTOR AT THE ADDRESS STATED HEREIN AND
SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT.
18. WAIVER OF DEFENSES. OTHER THAN CLAIMS BASED UPON THE FAILURE OF LENDER TO ACT IN
A COMMERCIALLY REASONABLE MANNER, GUARANTOR WAIVES EVERY PRESENT AND FUTURE DEFENSE (OTHER THAN THE
DEFENSE OF PAYMENT IN FULL), CAUSE OF ACTION, COUNTERCLAIM OR SETOFF WHICH GUARANTOR OR BORROWER
MAY NOW HAVE OR HEREAFTER MAY HAVE TO ANY ACTION BY LENDER IN ENFORCING THIS GUARANTY OR ANY OF THE
LOAN DOCUMENTS. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER GRANTING ANY FINANCIAL
ACCOMMODATION TO BORROWER.
19. WAIVER OF JURY TRIAL. GUARANTOR AND LENDER (BY ACCEPTANCE HEREOF), HAVING BEEN
REPRESENTED BY COUNSEL, EACH KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY OR UNDER ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH AND AGREES THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY. GUARANTOR AGREES THAT GUARANTOR WILL NOT ASSERT ANY CLAIM AGAINST LENDER ON ANY THEORY OF
LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
20. Facsimile Signatures. Receipt of an executed signature page to this Guaranty by
facsimile or other electronic transmission shall constitute effective delivery thereof.
7
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date first above written.
| XXXXXXX MALL PROPERTIES, INC., a Maryland corporation |
||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxx | |||
| Title: | Chairman and Chief Executive Officer | |||
8
