Contract
This
NON-RECOURSE GUARANTY (“Guaranty”) is
executed as of March 15, 2005, by XXXXXXX
PROPERTIES, L.P., a
Maryland limited partnership, having a place of business at 000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (whether one or more
collectively referred to as “Guarantor”), for
the benefit of GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC., a
Delaware corporation, having its principal office at 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000 (“Lender”).
W I T N E
S S E T H:
WHEREAS,
pursuant to that certain Promissory Note A and that certain Promissory Note B
each dated of even date herewith, executed by XXXXXXX PROPERTIES - 801 N. BRAND,
LLC, a Delaware limited liability company (“Borrower”), and
payable to the order of Lender in the original aggregate principal amount of
$75,540,000 (together with all renewals, modifications, increases and extensions
thereof, collectively, the “Note”),
Borrower has become indebted, and may from time to time be further indebted, to
Lender with respect to a loan (the “Loan”) which
is evidenced by, among other things, that certain Loan Agreement of even date
herewith (the “Loan
Agreement”)
between Borrower and Lender, and further evidenced, secured or governed by other
instruments and documents executed in connection with the Loan (together with
the Note and Mortagage, the “Loan
Documents”);
and
WHEREAS,
Lender is not willing to make the Loan, or otherwise extend credit, to Borrower
unless Guarantor unconditionally guarantees payment and performance to Lender of
the Guaranteed Obligations (as herein defined); and
WHEREAS,
Guarantor is the owner of a direct or indirect interest in Borrower, and
Guarantor will directly benefit from Lender’s making the Loan to
Borrower.
NOW,
THEREFORE, as an inducement to Lender to make the Loan to Borrower, and to
extend such additional credit as Lender may from time to time agree to extend
under the Loan Documents, and for other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, the parties do
hereby agree as follows:
ARTICLE
I
NATURE
AND SCOPE OF GUARANTY
1.1 Guaranty
of Obligation.
Guarantor hereby irrevocably and unconditionally guarantees to Lender and its
successors and assigns the payment of the Guaranteed Obligations as and when the
same shall be due and payable, whether by lapse of time, by acceleration of
maturity or otherwise. Guarantor hereby irrevocably and unconditionally
covenants and agrees that it is liable for the Guaranteed Obligations as a
primary obligor.
1.2 Definition
of Guaranteed Obligations. As used
herein, the term “Guaranteed
Obligations” means
(a) the
obligations or liabilities of Borrower to Lender for any loss, damage, cost,
expense, liability, claim or other obligation incurred by Lender (including
attorneys’ fees and costs reasonably incurred) arising out of or in connection
with the occurrence of any of the following during the period which Guarantor
owns any direct or indirect interest in Borrower and Borrower owns the
Property:
(i) fraud or
intentional misrepresentation by Borrower or Guarantor in connection with the
Loan;
(ii) intentional
physical waste (including, but not limited to, waste due to gross negligence) by
Borrower or any affiliate thereof; provided,
however, such
physical waste shall exclude wear and tear of the Property that occurs in the
ordinary course of business of the Property by Borrower or any affiliate
thereof;
(iii) the
material breach of any representation, warranty, covenant or indemnification
provision in that certain Environmental and Hazardous Substance Indemnification
Agreement of even date herewith given by Borrower to Lender or in the Loan
Agreement concerning environmental laws, hazardous substances or
asbestos;
(iv) the
removal or disposal by Borrower or any affiliate thereof of any portion of the
Property after an Event of Default has occurred and while it is continuing,
unless such portion of the Property is replaced by an item of equal or greater
value as determined by Lender in its reasonable discretion;
(v) the
misapplication or conversion by Borrower or any affiliate thereof of
(A) any insurance proceeds paid by reason of any loss, damage or
destruction to the Property, (B) any awards or other amounts received in
connection with the condemnation of all or a portion of the Property,
(C) any Rents following an Event of Default, or (D) any Rents paid
more than one month in advance;
(vi) failure
to pay charges for labor or materials or taxes or other charges that can create
liens superior to the lien of the Mortgage on any portion of the Property,
unless such taxes or other charges are being contested in accordance with the
Loan Documents or such taxes or charges have been delivered to Lender in
accordance with Section 3.3 of the Loan Agreement or Borrower has complied with
Section 5.2 of the Loan Agreement;
(vii) any
security deposits collected by Borrower or any affiliate thereof with respect to
the Property which are not delivered to Lender upon a foreclosure of the
Property or other action in lieu thereof, except to the extent any such security
deposits were applied in accordance with the terms and conditions of any of the
Leases prior to the occurrence of the Event of Default that gave rise to such
sale or foreclosure or action in lieu thereof; and
(viii) Any of
the representations contained in Section 4.33 of the Loan Agreement shall have
been untrue when made on the date hereof.
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(b) the full
amount of the Debt in the event that: (i) the first full Monthly Payment
Amount (as defined in the Note) under the Note is not paid when due;
(ii) other than in connection with a default under paragraph (D) of
Schedule 5 to the Loan Agreement, Borrower fails to maintain its status as a
Special Purpose Bankruptcy Remote Entity, as required by, and in accordance with
the terms and provisions of, the Loan Agreement and such failure results in the
substantive consolidation of Borrower with another Person; (iii) except as
otherwise permitted pursuant to the Loan Documents, Borrower fails to obtain
Lender’s prior written consent to any subordinate financing or other voluntary
lien encumbering the Property; (iv) except as otherwise permitted pursuant
to the Loan Documents, Borrower fails to obtain Lender’s prior written consent
to any assignment, transfer, or conveyance of the Property or any interest
therein as required by the Loan Agreement or the Mortgage; or
(v) (A) a receiver (other than a receiver appointed by Lender),
liquidator or trustee of Borrower or Guarantor shall be appointed which is not
dismissed within ninety (90) days, or (B) if any petition for bankruptcy,
reorganization or arrangement pursuant to federal bankruptcy law, or any similar
federal or state law, shall be filed by Borrower or Guarantor, or (C) if
Borrower or Guarantor files an answer consenting to, or otherwise joining in,
any involuntary petition for bankruptcy, reorganization or arrangement pursuant
to federal bankruptcy law, or any similar federal or state law filed against it
by any other Person, or is found pursuant to a final, unappealable order of a
court of competent jurisdiction to have solicited or caused to be solicited
creditors to file any involuntary petition for bankruptcy, reorganization or
arrangement pursuant to federal bankruptcy law, or any similar federal or state
law against Borrower or Guarantor, or (D) if Borrower or Guarantor are
found, pursuant to a final unappealable order of a court of competent
jurisdiction, to have been in collusion with creditors that initiate a
bankruptcy action or proceeding against Borrower or Guarantor. Notwithstanding
anything to the contrary contained in this Section 1.2(b), Guarantor shall not
be liable for the payment of Debt unless Guarantor causes, consents to or
acquiesces (to the extent that Guarantor has such power under Borrower’s
operating agreement) to any of the items described in this Section
1.2(b).
1.3 Nature
of Guaranty. This
Guaranty is an irrevocable, absolute, continuing guaranty of payment and
performance and not a guaranty of collection. This Guaranty may not be revoked
by Guarantor and shall continue to be effective with respect to any Guaranteed
Obligations arising or created after any attempted revocation by Guarantor and
after (if Guarantor is a natural person) Guarantor’s death (in which event this
Guaranty shall be binding upon Guarantor’s estate and Guarantor’s legal
representatives and heirs). The fact that at any time or from time to time the
Guaranteed Obligations may be increased or reduced shall not release or
discharge the obligation of Guarantor to Lender with respect to the Guaranteed
Obligations. This Guaranty may be enforced by Lender and any subsequent holder
of the Note and shall not be discharged by the assignment or negotiation of all
or part of the Note.
1.4 Guaranteed
Obligations Not Reduced by Offset. The
Guaranteed Obligations and the liabilities and obligations of Guarantor to
Lender hereunder, shall not be reduced, discharged or released because or by
reason of any existing or future offset, claim or defense of Borrower, or any
other party, against Lender (other than defenses based on the actual performance
of the Guaranteed Obligations sought to be enforced hereunder), or against
payment of the Guaranteed Obligations, whether such offset, claim or defense
arises in connection with the Guaranteed Obligations (or the transactions
creating the Guaranteed Obligations) or
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otherwise,
other than defenses based on the actual performance of the Guaranteed
Obligations sought to be enforced hereunder.
1.5 Payment
By Guarantor. If all
or any part of the Guaranteed Obligations shall not be punctually paid when due,
whether at demand, maturity, acceleration or otherwise, Guarantor shall, within
five (5) Business Days after written request by Lender, and without presentment,
protest, notice of protest, notice of non-payment, notice of intention to
accelerate the maturity, notice of acceleration of the maturity, or any other
notice whatsoever, pay in lawful money of the United States of America, the
amount due on the Guaranteed Obligations to Lender at Lender’s address as set
forth herein. Such demand(s) may be made at any time coincident with or after
the time for payment of all or part of the Guaranteed Obligations, and may be
made from time to time with respect to the same or different items of Guaranteed
Obligations. Such demand shall be deemed made, given and received in accordance
with the notice provisions hereof.
1.6 No
Duty To Pursue Others. It
shall not be necessary for Lender (and Guarantor hereby waives any rights which
Guarantor may have to require Lender), in order to enforce the obligations of
Guarantor hereunder, first to (i) institute suit or exhaust its remedies
against Borrower or others liable on the Loan or the Guaranteed Obligations or
any other person, (ii) enforce Lender’s rights against any collateral which
shall ever have been given to secure the Loan, (iii) enforce Lender’s
rights against any other guarantors of the Guaranteed Obligations,
(iv) join Borrower or any others liable on the Guaranteed Obligations in
any action seeking to enforce this Guaranty, (v) exhaust any remedies
available to Lender against any collateral which shall ever have been given to
secure the Loan, or (vi) resort to any other means of obtaining payment of
the Guaranteed Obligations. Lender shall not be required to mitigate damages or
take any other action to reduce, collect or enforce the Guaranteed
Obligations.
1.7 Waivers.
Guarantor agrees to the provisions of the Loan Documents and, except for notices
expressly required under this Guaranty or the other Loan Documents, hereby
waives notice of (i) any loans or advances made by Lender to Borrower,
(ii) acceptance of this Guaranty, (iii) any amendment or extension of
the Note, the Loan Agreement or of any other Loan Documents, (iv) the
execution and delivery by Borrower and Lender of any other loan or credit
agreement or of Borrower’s execution and delivery of any promissory notes or
other documents arising under the Loan Documents or in connection with the
Property, (v) the occurrence of any breach by Borrower or an Event of
Default, (vi) Lender’s transfer or disposition of the Guaranteed
Obligations, or any part thereof, (vii) sale or foreclosure (or posting or
advertising for sale or foreclosure) of any collateral for the Guaranteed
Obligations, (viii) protest, proof of non-payment or default by Borrower,
or (ix) any other action at any time taken or omitted by Lender, and,
generally, all demands and notices of every kind in connection with this
Guaranty, the Loan Documents, any documents or agreements evidencing, securing
or relating to any of the Guaranteed Obligations and the obligations hereby
guaranteed.
1.8 Payment
of Expenses. In the
event that Guarantor should breach or fail to timely perform any provisions of
this Guaranty, Guarantor shall, within five (5) Business Days after demand by
Lender, pay Lender all costs and expenses (including court costs and attorneys’
fees) incurred by Lender in the enforcement hereof or the preservation of
Lender’s rights
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hereunder.
The covenant contained in this Section shall survive the payment and performance
of the Guaranteed Obligations.
1.9 Effect
of Bankruptcy. In the
event that, pursuant to any insolvency, bankruptcy, reorganization, receivership
or other debtor relief law, or any judgment, order or decision thereunder,
Lender must rescind or restore any payment, or any part thereof, received by
Lender in satisfaction of the Guaranteed Obligations, as set forth herein, any
prior release or discharge from the terms of this Guaranty given to Guarantor by
Lender shall be without effect, and this Guaranty shall remain in full force and
effect. It is the intention of Borrower and Guarantor that Guarantor’s
obligations hereunder shall not be discharged except by Guarantor’s performance
of such obligations and then only to the extent of such
performance.
1.10 Waiver
of Subrogation, Reimbursement and Contribution.
Notwith-standing anything to the contrary contained in this Guaranty, Guarantor
hereby unconditionally and irrevocably waives, releases and abrogates (unless
and until the Debt has been fully paid and the Guaranteed Obligations have been
fully satisfied or the Notes are defeased in accordance with the terms of the
Loan Agreement) any and all rights it may now or hereafter have under any
agreement, at law or in equity (including, without limitation, any law
subrogating the Guarantor to the rights of Lender), to assert any claim against
or seek contribution, indemnification or any other form of reimbursement from
Borrower or any other party liable for payment of any or all of the Guaranteed
Obligations for any payment made by Guarantor under or in connection with this
Guaranty or otherwise.
1.11 Borrower. The
term “Borrower” as used
herein shall include any new or successor corporation, association, partnership
(general or limited), joint venture, trust or other individual or organization
formed as a result of any merger, reorganization, sale, transfer, devise, gift
or bequest of Borrower or any interest in Borrower, provided that Guarantor’s
obligations under this Guaranty shall be released in accordance with Section
5.26 of the Loan Agreement.
ARTICLE
II
EVENTS
AND CIRCUMSTANCES NOT REDUCING
OR
DISCHARGING GUARANTOR’S OBLIGATIONS
Guarantor
hereby consents and agrees to each of the following, and agrees that Guarantor’s
obligations under this Guaranty shall not be released, diminished, impaired,
reduced or adversely affected by any of the following (except as otherwise
provided in the Loan Agreement), and waives any common law, equitable, statutory
or other rights (including without limitation rights to notice) which Guarantor
might otherwise have as a result of or in connection with any of the
following:
2.1 Modifications. Any
renewal, extension, increase, modification, alteration or rearrangement of all
or any part of the Debt, the Note, the Loan Agreement, the other Loan Documents
(other than this Guaranty), or any other document, instrument, contract or
understanding between Borrower and Lender, or any other parties, pertaining to
the Loan or any failure of Lender to notify Guarantor of any such
action.
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2.2 Adjustment. Any
adjustment, indulgence, forbearance or compromise that might be granted or given
by Lender to Borrower or any Guarantor.
2.3 Condition
of Borrower or Guarantor. Except
as otherwise provided under applicable law, the insolvency, bankruptcy,
arrangement, adjustment, composition, liquidation, disability, dissolution or
lack of power of Borrower, Guarantor or any other party at any time liable for
the payment of all or part of the Guaranteed Obligations; or any dissolution of
Borrower or Guarantor, or, except as provided in the Loan Agreement, any sale,
lease or transfer of any or all of the assets of Borrower or Guarantor, or,
except as provided in the Loan Agreement, any changes in the shareholders,
partners or members of Borrower or Guarantor; or any reorganization of Borrower
or Guarantor.
2.4 Invalidity
of Guaranteed Obligations. The
invalidity, illegality or unenforceability of all or any part of the Guaranteed
Obligations, or any document or agreement executed in connection with the
Guaranteed Obligations, for any reason whatsoever, including without limitation
the fact that (i) the Guaranteed Obligations, or any part thereof, exceeds
the amount permitted by law, (ii) the act of creating the Guaranteed
Obligations or any part thereof is ultra xxxxx, (iii) the officers or
representatives executing the Note, the Mortagage or the other Loan Documents or
otherwise creating the Guaranteed Obligations acted in excess of their
authority, (iv) the Guaranteed Obligations violate applicable usury laws,
(v) the Borrower has valid defenses, claims or offsets (whether at law, in
equity or by agreement), other than a defense based on the actual performance of
the Guaranteed Obligations sought to be enforced hereunder, which render the
Guaranteed Obligations wholly or partially uncollectible from Borrower,
(vi) the creation, performance or repayment of the Guaranteed Obligations
(or the execution, delivery and performance of any document or instrument
representing part of the Guaranteed Obligations or executed in connection with
the Guaranteed Obligations, or given to secure the repayment of the Guaranteed
Obligations) is illegal, uncollectible or unenforceable, or (vii) the Note,
the Loan Agreement or any of the other Loan Documents have been forged or
otherwise are irregular or not genuine or authentic, it being agreed that
Guarantor shall remain liable hereon regardless of whether Borrower or any other
person be found not liable on the Guaranteed Obligations or any part thereof for
any reason, other than a finding based on actual performance of the Guaranteed
Obligations sought to be enforced hereunder.
2.5 Release
of Obligors. Any
full or partial release of the liability of Borrower on the Guaranteed
Obligations, or any part thereof, or of any co-guarantors, or any other person
or entity (other than Guarantor) now or hereafter liable, whether directly or
indirectly, jointly, severally, or jointly and severally, to pay, perform,
guarantee or assure the payment of the Guaranteed Obligations, or any part
thereof, it being recognized, acknowledged and agreed by Guarantor that
Guarantor may be required to pay the Guaranteed Obligations in full without
assistance or support of any other party, and Guarantor has not been induced to
enter into this Guaranty on the basis of a contemplation, belief, understanding
or agreement that other parties will be liable to pay or perform the Guaranteed
Obligations, or that Lender will look to other parties to pay or perform the
Guaranteed Obligations.
2.6 Other
Collateral. The
taking or accepting of any other security, collateral or guaranty, or other
assurance of payment, for all or any part of the Guaranteed
Obligations.
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2.7 Release
of Collateral. Any
release, surrender, exchange, subordination, deterioration, waste, loss or
impairment (including without limitation negligent, willful, unreasonable or
unjustifiable impairment) of any collateral, property or security at any time
existing in connection with, or assuring or securing payment of, all or any part
of the Guaranteed Obligations.
2.8 Care
and Diligence. The
failure of Lender or any other party to exercise diligence or reasonable care in
the preservation, protection, enforcement, sale or other handling or treatment
of all or any part of such collateral, property or security, other than any
loss, damage, liability or cost arising from Lender’s or its agent’s gross
negligence or willful misconduct following Lender’s or its agent’s taking title
to, or actual possession of, the Property, and any neglect, delay, omission,
failure or refusal of Lender (i) to take or prosecute any action for the
collection of any of the Guaranteed Obligations or (ii) to foreclose, or
initiate any action to foreclose, or, once commenced, prosecute to completion
any action to foreclose upon any security therefor, or (iii) to take or
prosecute any action in connection with any instrument or agreement evidencing
or securing all or any part of the Guaranteed Obligations.
2.9 Unenforceability. The
fact that any collateral, security, security interest or lien contemplated or
intended to be given, created or granted as security for the repayment of the
Guaranteed Obligations, or any part thereof, shall not be properly perfected or
created, or shall prove to be unenforceable or subordinate to any other security
interest or lien, it being recognized and agreed by Guarantor that Guarantor is
not entering into this Guaranty in reliance on, or in contemplation of the
benefits of, the validity, enforceability, collectibility or value of any of the
collateral for the Guaranteed Obligations.
2.10 Offset. The
Note, the Guaranteed Obligations and the liabilities and obligations of the
Guarantor to Lender hereunder shall not be reduced, discharged or released
because of or by reason of any existing or future right of offset, claim or
defense of Borrower against Lender, or any other party, or against payment of
the Guaranteed Obligations, whether such right of offset, claim or defense
arises in connection with the Guaranteed Obligations (or the transactions
creating the Guaranteed Obligations) or otherwise, other than a defense based on
actual performance of the Guaranteed Obligations sought to be enforced
hereunder.
2.11 Merger. The
reorganization, merger or consolidation of Borrower into or with any other
corporation or entity.
2.12 Preference. Any
payment by Borrower to Lender is held to constitute a preference under
bankruptcy laws, or for any reason Lender is required to refund such payment or
pay such amount to Borrower or someone else.
2.13 Other
Actions Taken or Omitted. Any
other action taken or omitted to be taken with respect to the Loan Documents,
the Guaranteed Obligations, or the security and collateral therefor, other than
the gross negligence or willful misconduct of Lender after Lender takes title
to, or actual possession of, the Property, whether or not such action or
omission prejudices Guarantor or increases the likelihood that Guarantor will be
required to pay the Guaranteed Obligations pursuant to the terms hereof, it is
the unambiguous and unequivocal intention of Guarantor that Guarantor shall be
obligated to pay the Guaranteed Obligations when
7
due,
notwithstanding any occurrence, circumstance, event, action, or omission
whatsoever, whether contemplated or uncontemplated, and whether or not otherwise
or particularly described herein, other than the gross negligence or willful
misconduct of Lender after Lender takes title to, or actual possession of, the
Property, which obligation shall be deemed satisfied only upon the full and
final payment and satisfaction of the Guaranteed Obligations.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
To induce
Lender to enter into the Loan Documents and extend credit to Borrower, Guarantor
represents and warrants to Lender as follows:
3.1 Benefit.
Guarantor is an affiliate of Borrower, is the owner of a direct or indirect
interest in Borrower, and has received, or will receive, direct or indirect
benefit from the making of this Guaranty with respect to the Guaranteed
Obligations.
3.2 Familiarity
and Reliance.
Guarantor is familiar with, and has independently reviewed books and records
regarding, the financial condition of the Borrower and is familiar with the
value of any and all collateral intended to be created as security for the
payment of the Note or Guaranteed Obligations; however, Guarantor is not relying
on such financial condition or the collateral as an inducement to enter into
this Guaranty.
3.3 No
Representation By Lender. Neither
Lender nor any other party has made any representation, warranty or statement to
Guarantor in order to induce the Guarantor to execute this
Guaranty.
3.4 Guarantor’s
Financial Condition. As of
the date hereof, and after giving effect to this Guaranty and the contingent
obligation evidenced hereby, Guarantor is, and will be, solvent, and has and
will have assets which, fairly valued, exceed its obligations, liabilities
(including contingent liabilities) and debts, and has and will have property and
assets sufficient to satisfy and repay its obligations and
liabilities.
3.5 Legality. The
execution, delivery and performance by Guarantor of this Guaranty and the
consummation of the transactions contemplated hereunder do not, and will not,
contravene or conflict with any law, statute or regulation whatsoever to which
Guarantor is subject or constitute a default (or an event which with notice or
lapse of time or both would constitute a default) under, or result in the breach
of, any indenture, charge, lien, or any contract, agreement or other instrument
to which Guarantor is a party or which may be applicable to Guarantor, in each
case which would have a material adverse effect on Guarantor’s financial
condition. This Guaranty is a legal and binding obligation of Guarantor and is
enforceable in accordance with its terms, except as limited by general
principles of equity and by bankruptcy, insolvency, reorganization, arrangement,
moratorium, receivership or other laws of general application relating to or
affecting the enforcement of creditors’ rights.
3.6 Survival. All
representations and warranties made by Guarantor herein shall survive the
execution hereof.
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ARTICLE
IV
SUBORDINATION
OF CERTAIN INDEBTEDNESS
4.1 Subordination
of All Guarantor Claims. As used
herein, the term “Guarantor
Claims” shall
mean all debts and liabilities of Borrower to Guarantor, whether such debts and
liabilities now exist or are hereafter incurred or arise, or whether the
obligations of Borrower thereon be direct, contingent, primary, secondary,
several, joint and several, or otherwise, and irrespective of whether such debts
or liabilities be evidenced by note, contract, open account, or otherwise, and
irrespective of the person or persons in whose favor such debts or liabilities
may, at their inception, have been, or may hereafter be created, or the manner
in which they have been or may hereafter be acquired by Guarantor. The Guarantor
Claims shall include without limitation all rights and claims of Guarantor
against Borrower (arising as a result of subrogation or otherwise) as a result
of Guarantor’s payment of all or a portion of the Guaranteed Obligations. Upon
the occurrence of an Event of Default or the occurrence of an event which would,
with the giving of notice or the passage of time, or both, constitute an Event
of Default, and in each case while such Event of Default or event is continuing,
Guarantor shall not receive or collect, directly or indirectly, from Borrower
any amount upon the Guarantor Claims.
4.2 Claims
in Bankruptcy. In the
event of receivership, bankruptcy, reorganization, arrangement, debtor’s relief,
or other insolvency proceedings involving Guarantor as debtor, Lender shall have
the right to prove its claim in any such proceeding so as to establish its
rights hereunder and receive directly from the receiver, trustee or other court
custodian dividends and payments which would otherwise be payable upon Guarantor
Claims. Guarantor hereby assigns such dividends and payments to Lender. Should
Lender receive, for application upon the Guaranteed Obligations, any such
dividend or payment which is otherwise payable to Guarantor, and which, as
between Borrower and Guarantor, shall constitute a credit upon the Guarantor
Claims, then upon payment to Lender in full of the Guaranteed Obligations,
Guarantor shall become subrogated to the rights of Lender to the extent that
such payments to Lender on the Guarantor Claims have contributed toward the
liquidation of the Guaranteed Obligations, and such subrogation shall be with
respect to that proportion of the Guaranteed Obligations which would have been
unpaid if Lender had not received dividends or payments upon the Guarantor
Claims.
4.3 Payments
Held in Trust. In the
event that, notwithstanding anything to the contrary in this Guaranty, Guarantor
should receive any funds, payment, claim or distribution which is prohibited by
this Guaranty, Guarantor agrees to hold in trust for Lender an amount equal to
the amount of all funds, payments, claims or distributions so received, and
agrees that it shall have absolutely no dominion over the amount of such funds,
payments, claims or distributions so received except to pay them promptly to
Lender, and Guarantor covenants promptly to pay the same to Lender.
4.4 Liens
Subordinate.
Guarantor agrees that any liens, security interests, judgment liens, charges or
other encumbrances upon Borrower’s assets securing payment of the Guarantor
Claims shall be and remain inferior and subordinate to any liens, security
interests, judgment liens, charges or other encumbrances upon Borrower’s assets
securing payment of the
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Guaranteed
Obligations, regardless of whether such encumbrances in favor of Guarantor or
Lender presently exist or are hereafter created or attach. Until the Debt shall
have been fully paid and the Guaranteed Obligations fully satisfied or this
Guaranty is otherwise released, without the prior written consent of Lender,
Guarantor shall not (i) exercise or enforce any creditor’s right it may
have against Borrower, or (ii) foreclose, repossess, sequester or otherwise
take steps or institute any action or proceedings (judicial or otherwise,
including without limitation the commencement of, or joinder in, any
liquidation, bankruptcy, rearrangement, debtor’s relief or insolvency
proceeding) to enforce any liens, mortgages, deeds of trust, security interests,
collateral rights, judgments or other encumbrances on assets of Borrower held by
Guarantor.
ARTICLE
V
MISCELLANEOUS
5.1 Waiver. No
failure to exercise, and no delay in exercising, on the part of Lender, any
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right. The rights of Lender hereunder shall be in addition
to all other rights provided by law. No modification or waiver of any provision
of this Guaranty, nor consent to departure therefrom, shall be effective unless
in writing and no such consent or waiver shall extend beyond the particular case
and purpose involved. No notice or demand given in any case shall constitute a
waiver of the right to take other action in the same, similar or other instances
without such notice or demand.
5.2 Notices. Any
notice, demand, statement, request or consent made hereunder shall be in writing
and shall be deemed to be received by the addressee on the third day following
the day such notice is deposited with the United States Postal Service first
class certified mail, return receipt requested, addressed to the address, as set
forth below, of the party to whom such notice is to be given, or to such other
addressee as either party shall in like manner designate in writing. The
addresses of the parties hereto are as follows:
|
Guarantor:
| ||
|
Xxxxxxx
Properties, L.P. | ||
|
000
Xxxxx Xxxxx Xxxxxx, Xxxxx 000 | ||
|
Xxx
Xxxxxxx, Xxxxxxxxxx 00000 | ||
|
Attention: |
Xx.
Xxxxxx X. Xxxxxxx III and | |
|
Xxxx
X. Lammas, Esq. | ||
|
with
a copy to:
| ||
|
Xxxxxx
& Xxxxxxx LLP | ||
|
000
Xxxx Xxxxx Xxxxxx, Xxxxx 0000 | ||
|
Xxx
Xxxxxxx, XX 00000 | ||
|
Attention:
Xxxxxx X. Xxxxxx, Esq. | ||
|
Telecopier:
(000) 000-0000 | ||
10
|
Lender:
| |
|
Greenwich
Capital Financial Products, Inc. | |
|
000
Xxxxxxxxx Xxxx | |
|
Xxxxxxxxx,
Xxxxxxxxxxx 00000 | |
|
Attention:
Mortgage Loan Department | |
|
Telecopier:
(000) 000-0000
| |
|
with
a copy to:
| |
|
Xxxx
Xxxxxxx LLP | |
|
000
Xxxx Xxxxxx | |
|
Xxx
Xxxx, Xxx Xxxx 00000-0000 | |
|
Attention:
Xxxxxxx Xxxxxxx, Esq. | |
|
Telecopier:
(000) 000-0000 | |
5.3 Governing
Law. This
Guaranty shall be governed by and construed in accordance with the laws of the
State of New York and the applicable laws of the United States of America. Any
legal suit, action or proceeding against Guarantor arising out of or relating to
this Guaranty may at Lender’s option be instituted in any federal or state court
in the City of New York, County of New York pursuant to Section 5-1402 of the
New York General Obligations Law, and Guarantor waives any objections which it
may have now or hereafter based on venue and/or forum non conveniens of any such
suit, action or proceeding, and Guarantor hereby irrevocably submits to the
jurisdiction of any such court in any suit, action or proceeding.
5.4 Invalid
Provisions. If any
provision of this Guaranty is held to be illegal, invalid, or unenforceable
under present or future laws effective during the term of this Guaranty, such
provision shall be fully severable and this Guaranty shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Guaranty, and the remaining provisions of this Guaranty
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance from this Guaranty,
unless such continued effectiveness of this Guaranty, as modified, would be
contrary to the basic understandings and intentions of the parties as expressed
herein.
5.5 Amendments. This
Guaranty may be amended only by an instrument in writing executed by the party
or an authorized representative of the party against whom such amendment is
sought to be enforced.
5.6 Parties
Bound; Assignment; Joint and Several. This
Guaranty shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, assigns and legal representatives; provided,
however, that
Guarantor may not, without the prior written consent of Lender, assign any of
its rights, powers, duties or obligations hereunder, except as provided in the
Loan Agreement. If Guarantor consists of more than one person or party, the
obligations and liabilities of each such person or party shall be joint and
several.
11
5.7 Headings. Section
headings are for convenience of reference only and shall in no way affect the
interpretation of this Guaranty.
5.8 Recitals. The
recital and introductory paragraphs hereof are a part hereof, form a basis for
this Guaranty and shall be considered prima
facie evidence
of the facts and documents referred to therein.
5.9 Counterparts. To
facilitate execution, this Guaranty may be executed in as many counterparts as
may be convenient or required. It shall not be necessary that the signature of,
or on behalf of, each party, or that the signature of all persons required to
bind any party, appear on each counterpart. All counterparts shall collectively
constitute a single instrument. It shall not be necessary in making proof of
this Guaranty to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, each of the parties
hereto. Any signature page to any counterpart may be detached from such
counterpart without impairing the legal effect of the signatures thereon and
thereafter attached to another counterpart identical thereto except having
attached to it additional signature pages.
5.10 Rights
and Remedies. If
Guarantor becomes liable for any indebtedness owing by Borrower to Lender, by
endorsement or otherwise, other than under this Guaranty, such liability shall
not be in any manner impaired or affected hereby and the rights of Lender
hereunder shall be cumulative of any and all other rights that Lender may ever
have against Guarantor. The exercise by Lender of any right or remedy hereunder
or under any other instrument, or at law or in equity, shall not preclude the
concurrent or subsequent exercise of any other right or remedy.
5.11 Other
Defined Terms. Any
capitalized term utilized herein shall have the meaning as specified in the Loan
Agreement, unless such term is otherwise specifically defined
herein.
5.12 Entirety.
THIS
GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF GUARANTOR AND LENDER WITH
RESPECT TO GUARANTOR’S GUARANTY OF THE GUARANTEED OBLIGATIONS AND SUPERSEDES ANY
AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY IS
INTENDED BY GUARANTOR AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS
OF THE GUARANTY, AND NO COURSE OF DEALING BETWEEN GUARANTOR AND LENDER, NO
COURSE OF PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC
EVIDENCE OF ANY NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY
ANY TERM OF THIS GUARANTY AGREEMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN
GUARANTOR AND LENDER RELATING TO THE SUBJECT MATTER
HEREOF.
5.13 Waiver
of Right To Trial By Jury.
GUARANTOR HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF
RIGHT
12
BY
JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE NOTE, THE
MORTAGAGE, OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER
ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
GIVEN KNOWINGLY AND VOLUNTARILY BY GUARANTOR, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY
GUARANTOR.
5.14 Cooperation.
Guarantor acknowledges that Lender and its successors and assigns may
(i) sell this Guaranty, the Note and other Loan Documents to one or more
investors as a whole loan, (ii) participate the Loan secured by this
Guaranty to one or more investors, (iii) deposit this Guaranty, the Note
and other Loan Documents with a trust, which trust may sell certificates to
investors evidencing an ownership interest in the trust assets, or
(iv) otherwise sell the Loan or interest therein to investors (the
transactions referred to in clauses (i) through (iv) are hereinafter each
referred to as “Secondary
Market Transaction”).
Guarantor shall cooperate with Lender in effecting any such Secondary Market
Transaction and shall cooperate to implement all requirements imposed by any
Rating Agency involved in any Secondary Market Transaction; provided,
however, that
Guarantor shall not be required to bear any increased risk or incur any
liability or cost as a result of such cooperation and shall not be required to
modify or amend this Guaranty if such modification or amendment would
(i) have a material adverse economic effect on Guarantor, (ii) modify
or amend any other material economic term of this Guaranty, or
(iii) otherwise materially increase the obligations or materially decrease
the rights of Guarantor pursuant to this Guaranty and the other Loan Documents.
Guarantor shall provide such information and documents relating to Guarantor,
Borrower, the Property and, to the extent available using commercially
reasonable efforts, any tenants of the Improvements as Lender may reasonably
request in connection with such Secondary Market Transaction. In addition,
Guarantor shall make available to Lender all information concerning its business
and operations that Lender may reasonably request; provided that Guarantor shall
not be required to incur any material cost with respect to such request. Lender
shall be permitted to share all such information with the investment banking
firms, Rating Agencies, accounting firms, law firms and other third-party
advisory firms involved with the Loan and the Loan Documents or the applicable
Secondary Market Transaction; provided that if Lender discloses the personal
financial statements of Guarantor to any investor in connection with a Secondary
Market Transaction, Lender shall cause such investor to execute a
confidentiality agreement reasonably acceptable to Guarantor. It is understood
that the information provided by Guarantor to Lender may ultimately be
incorporated into the offering documents for the Secondary Market Transaction
and thus various investors may also see some or all of the information. Lender
and all of the aforesaid third-party advisors and professional firms shall be
entitled to rely on the information supplied by, or on behalf of, Guarantor in
the form as provided by Guarantor. Lender may publicize the existence of the
Loan in connection with its marketing for a Secondary Market Transaction or
otherwise as part of its business development.
13
5.15 Reinstatement
in Certain Circumstances. If at
any time any payment of the principal of or interest under the Note or any other
amount payable by the Borrower under the Loan Documents is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, if and to the extent such payment is in
satisfaction of a Guaranteed Obligation, the Guarantor’s obligations hereunder
with respect to such payment of the Guaranteed Obligation shall be reinstated as
though such payment has been due but not made at such time.
5.16 Intentionally
Omitted.
5.17 Special
California Provisions.
Guarantor waives:
(a) all
rights and defenses arising out of an election of remedies by Lender even though
the election of remedies, such as nonjudicial foreclosure with respect to
security for the Loan or any other amounts owing under the Loan Documents, has
destroyed the Guarantor’s rights of subrogation and reimbursement against the
Borrower by operation of Section 580d of the California Code of Civil Procedure
or otherwise;
(b) all
rights and defenses that Guarantor may have because any of the Borrower’s debt
is secured by real property. This means, among other things: (i) Lender may
collect from Guarantor without first foreclosing on any real or personal
property collateral pledged by Borrower and (ii) if Lender forecloses on
any real property collateral pledged by Borrower: (A) the amount of the
debt may be reduced only by the price for which that collateral is sold at the
foreclosure sale, even if the collateral is worth more than the sale price, and
(B) Lender may collect from Guarantor even if Lender, by foreclosing on the
real property collateral, has destroyed any right Guarantor may have to collect
from Borrower;
(c) all
benefits and defenses it may have under California Civil Code Section 2809 with
respect to its obligations under this Guaranty and agrees that Lender’s rights
under the Loan Documents will remain enforceable even if the amount secured by
the Loan Documents is larger in amount and more burdensome than that for which
Borrower is responsible. Except as otherwise expressly provided herein, the
enforceability of this Guaranty against Guarantor shall continue until all sums
due under the Loan Documents have been paid in full and shall not be limited or
affected in any way by any impairment or any diminution or loss of value of any
security or collateral for Borrower’s obligations under the Loan Documents, from
whatever cause, the failure of any security interest in any such security or
collateral or any disability or other defense of Borrower, any other guarantor
of Borrower’s obligations under the Loan Documents, any other pledgor of
collateral for any person’s obligations to Lender or any other person in
connection with the Loan;
(d) all
benefits and defenses it may have under California Civil Code Sections 2845,
2849 and 2850 with respect to its obligations under this Guaranty, including,
without limitation, the right to require Lender to (A) proceed against
Borrower, any other guarantor of Borrower’s obligations under the Loan Documents
or any other person in connection with the Loan, (B) proceed against or
exhaust any other security or collateral Lender may hold or (C) pursue any
other right or remedy for Guarantor’s benefit, and agrees that Lender may
exercise its rights under this Guaranty without taking any action against
Borrower, any other
14
guarantor
of Borrower’s obligations under the Loan Documents or any other Person in
connection with the Loan, and without proceeding against or exhausting any
security or collateral Lender holds;
(e) all
rights and defenses that are or may become available to Guarantor or other
surety by reason of California Civil Code Sections 2787 to 2855, inclusive; and
(f) its
rights under California Civil Code Sections 2847, 2848 and 2349 as they relate
to Guarantor’s obligations under this Guaranty to the extent inconsistent with
Section 1.10 hereof in each case until the Debt has been fully paid and the
Guaranteed Obligations fully satisfied.
This is
an unconditional and irrevocable waiver of any rights and defenses Guarantor may
have because any of the Guaranteed Obligations are secured by real property.
These rights and defenses include, but are not limited to, any rights or
defenses based upon Section 580a, 580b, 580d, or 726 of the California Code of
Civil Procedure.
[NO
FURTHER TEXT ON THIS PAGE]
15
EXECUTED
as of the day and year first above written.
|
GUARANTOR: | ||
|
XXXXXXX
PROPERTIES, L.P., | ||
|
a
Maryland limited partnership | ||
|
By: |
XXXXXXX
PROPERTIES, INC., | |
|
a
Maryland corporation | ||
|
its
sole general partner | ||
|
By: |
/s/
Xxxxxx X. Xxxxx | |
|
Name:
Xxxxxx X. Xxxxx | ||
|
Title:
Executive Vice President
&
Chief Financial Officer | ||
