EXHIBIT 10.68
GUARANTY OF RECOURSE OBLIGATIONS
This GUARANTY OF RECOURSE OBLIGATIONS (this "GUARANTY") is executed as of
July ___, 2002 by HORIZON GROUP PROPERTIES, INC., a Maryland corporation, and
HORIZON GROUP PROPERTIES, L.P., a Delaware limited partnership, each having an
address at c/o Horizon Group Properties, Inc., 00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000 (each, a "GUARANTOR" and collectively, "Guarantors"),
for the benefit of UBS WARBURG REAL ESTATE INVESTMENTS INC., a Delaware
corporation, having an address at 1285 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("LENDER").
W I T N E S S E T H:
A. Pursuant to (i) that certain Promissory Note, dated of even date
herewith, executed by Xxxxxxxx Holdings LLC, a Delaware limited liability
company ("XXXXXXXX MEZZANINE BORROWER") and payable to the order of Lender in
the original principal amount of up to One Million Seven Hundred Fifty Thousand
and No/100 Dollars ($1,750,000.00) (together with all renewals, modifications,
increases and extensions thereof, the "XXXXXXXX MEZZANINE NOTE"), (ii) that
certain Promissory Note, dated of even date herewith, executed by Medford
Holdings LLC, a Delaware limited liability company ("MEDFORD MEZZANINE
BORROWER") and payable to the order of Lender in the original principal amount
of up to One Million and No/100 Dollars ($1,000,000.00) (together with all
renewals, modifications, increases and extensions thereof, the "MEDFORD
MEZZANINE NOTE"), and (iii) that certain Promissory Note, dated of even date
herewith, executed by Warrenton Holdings LLC, a Delaware limited liability
company ("WARRENTON MEZZANINE Borrower"; and Warrenton Mezzanine Borrower,
together with Xxxxxxxx Mezzanine Borrower and Medford Mezzanine Borrower, each,
a "BORROWER" and collectively, "BORROWERS") and payable to the order of Lender
in the original principal amount of up to and Seven Hundred Fifty Thousand and
No/100 Dollars ($750,000.00) (together with all renewals, modifications,
increases and extensions thereof, the "WARRENTON MEZZANINE NOTE"; and the
Warrenton Mezzanine Note, together with the Xxxxxxxx Mezzanine Note and the
Medford Mezzanine Note, each a "NOTE" and collectively, the "NOTES"), Borrowers
have become indebted, and may from time to time be further indebted, to Lender
with respect to a loan (the "LOAN") which is made pursuant to that certain
Mezzanine Loan Agreement, dated of even date herewith, by and among Borrowers
and Lender (as the same may be amended, modified, supplemented, replaced or
otherwise modified from time to time, the "MEZZANINE LOAN AGREEMENT").
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the Mezzanine Loan Agreement.
B. Lender is not willing to make the Loan, or otherwise extend credit, to
Borrowers unless Guarantors unconditionally guarantee the payment and
performance to Lender of the Guaranteed Obligations (as herein defined).
C. Guarantors are each the owners of a direct or indirect interest in
each Borrower, and Guarantors will directly benefit from Lender's making the
Loan to Borrowers.
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NOW, THEREFORE, as an inducement to Lender to make the Loan to Borrowers
and to extend such additional credit as Lender may from time to time agree to
extend under the Mezzanine 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 1
NATURE AND SCOPE OF GUARANTY
Section 1.1 GUARANTY OF OBLIGATION. Each Guarantor hereby irrevocably
and unconditionally guarantees to Lender and its successors and assigns the
payment and performance 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. Each Guarantor hereby irrevocably and unconditionally covenants and
agrees that it is liable for the Guaranteed Obligations as a primary obligor.
Section 1.2 GUARANTEED OBLIGATIONS. Section 1.1 Each Guarantor hereby
assumes liability as a primary obligor for, hereby unconditionally guarantees
payment to Lender of, hereby agrees to pay, protect, defend and save Lender
harmless from and against, and hereby indemnifies Lender from and against, any
and all liabilities, obligations, losses, damages (including those resulting
from the diminution in value of any or all of the Collateral and in any other
collateral given to Lender), costs and expenses (including, without limitation,
attorneys' fees and costs), causes of action, suits, claims, demands and
judgments, of any nature or description whatsoever, which may at any time be
imposed upon, incurred by or awarded against Lender as a result of any event set
forth in the following clauses (i) through (xiv):
(i) fraud or material misrepresentation of a material fact by or on behalf
of Borrowers (or any of them) or either or both Guarantors or any of their
respective agents or representatives in connection with the Loan, including by
reason of any claim under RICO;
(ii) the gross negligence or willful misconduct by or on behalf of
Borrowers, Owners (or any of them) or either or both Guarantors or any of their
respective agents or representatives in connection with the Loan;
(iii) the breach by any Borrower of any representation, warranty, covenant
or indemnification provision in the Environmental Indemnity or in any other
Mezzanine Loan Document concerning environmental laws, hazardous substances
and/or asbestos and any indemnification of Lender with respect thereto in either
document;
(iv) wrongful removal or willful destruction of any portion of the
Properties after an Event of Default;
(v) any intentional, physical waste of any Individual Property resulting
from the action or inaction of Borrowers, Owners (or any of them) or Manager
which materially adversely affects the value of such Individual Property;
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(vi) any Legal Requirement (including RICO) resulting in the forfeiture by
Borrowers, Owners (or any of them) of any Individual Property, or any material
portion thereof, because of the conduct or purported conduct of criminal
activity by Borrowers, Owners (or any of them) or either or both Guarantors or
any of their respective agents or representatives in connection therewith;
(vii) any material misrepresentation, miscertification or breach of
warranty by any Borrower with respect to any representation, warranty or
certification contained in this Guaranty or any other Mezzanine Loan Document or
in any document executed in connection therewith, pursuant to any of the
Mezzanine Loan Documents or otherwise to induce Lender to make the Loan, or any
advance thereof, or to release monies from any account held by Lender (including
any reserve or escrow) or to take other action with respect to any of the
Collateral for the Loan;
(viii) the misapplication or conversion by or on behalf of Borrowers,
Owners (or any of them) of (A) any insurance proceeds paid by reason of any
loss, damage or destruction to any Individual Property, (B) any Awards or other
amounts received in connection with the Condemnation of all or a portion of any
Individual Property, or (C) any Gross Revenues (including Rents, security
deposits, advance deposits or any other deposits and Lease Termination
Payments);
(ix) failure to pay charges for labor or materials or other charges that
can create Liens on any portion of any Individual Property, to the extent such
Liens are not bonded over or discharged in accordance with Section 3.6 of the
Mortgages;
(x) any security deposits, advance deposits or any other deposits collected
with respect to any Individual Property which are not delivered to Lender in
accordance with the provisions of the Mezzanine Loan Documents;
(xi) the failure to pay Taxes with respect to any Individual Property if
such Individual Property generates sufficient Gross Revenue to pay such Taxes;
(xii) failure to obtain and maintain the fully paid for Policies in
accordance with Section 5.1.1 of the Mezzanine Loan Agreement;
(xiii) the failure of any or all of the Borrowers to cause Owners to permit
on-site inspections of any or all of the Properties as required by Section 4.1.5
of the Mezzanine Loan Agreement or to provide financial information as required
by Section 4.1.7 of the Mezzanine Loan Agreement; and/or
(xiv) Borrowers' indemnification of Lender set forth in Section 9.2 of the
Mezzanine Loan Agreement.
(b) In addition to, and without limiting the generality of, the
foregoing clause (a), and notwithstanding anything to the contrary set forth in
this Guaranty or in any of the other Mezzanine Loan Documents, each Guarantor
hereby acknowledges and agrees that the Obligations shall be fully recourse to
each Guarantor in the event that:
(i) any or all of the Borrowers fail to maintain its/their status as a
single purpose entity or fail
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to appoint a new property manager upon the request of Lender after the
occurrence of any of the events set forth in Section 7.3 of the Loan Agreement,
each as required by, and in accordance with, the terms and provisions of the
Loan Agreement and the Pledges;
(ii) any or all of the Borrowers fail to obtain Lender's prior consent to
any subordinate financing or other voluntary Lien encumbering any Individual
Property or the Collateral;
(iii) any or all of the Borrowers fail to obtain Lender's prior consent to
any Transfer of any Individual Property or the Collateral or any interest
therein or any Transfer of any direct or indirect interest in Borrowers (or any
of them), in any such case, as required by the Pledges or the Mezzanine Loan
Agreement, other than a Permitted Transfer;
(iv) Borrowers (or any of them) file a voluntary petition under the
Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(v) an Affiliate, officer, director or representative which controls,
directly or indirectly, any Borrower files, or joins in the filing of, an
involuntary petition against Borrowers (or any of them) under the Bankruptcy
Code or any other Federal or state bankruptcy or insolvency law, or solicits or
causes to be solicited petitioning creditors for any involuntary petition
against Borrowers (or any of them) from any Person;
(vi) Borrowers (or any of them) file an answer consenting to, or otherwise
acquiescing in, or joining in, any involuntary petition filed against it by any
other Person under the Bankruptcy Code or any other Federal or state bankruptcy
or insolvency law, or solicit or cause to be solicited petitioning creditors for
any involuntary petition from any Person;
(vii) any Affiliate, officer, director or representative which controls any
Borrower consents to, or acquiesces in, or joins in, an application for the
appointment of a custodian, receiver, trustee, or examiner for Borrowers (or any
of them) or any portion of any Individual Property or the Collateral;
(viii) Borrowers (or any of them) make an assignment for the benefit of
creditors or admit, in writing or in any legal proceeding, its/their insolvency
or inability to pay its/their debts as they become due, or
(ix) if either or both Guarantors (or any Person comprising either or both
Guarantors), Borrowers (or any of them) or any Affiliate of any of the
foregoing, in connection with any enforcement action or exercise or assertion of
any right or remedy by or on behalf of Lender under or in connection with this
Guaranty, the Notes, the Pledges or any other Mezzanine Loan Document, seeks a
defense, judicial intervention or injunctive or other equitable relief of any
kind, or asserts in a pleading filed in connection with a judicial proceeding
any defense against Lender or any right in connection with any security for the
Loan, which the court in any such action or proceeding determines is without
merit (in the case of a defense) or is unwarranted (in the case of a request for
judicial intervention or injunctive or other equitable relief); provided,
however, that Borrowers shall be entitled to assert a good faith defense of
payment or performance of the obligations in question without incurring recourse
hereunder.
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(c) The obligations of Guarantors set forth in clauses (a) and (b) of
this Section 1.2, as and to the extent set forth in said clauses (a) and (b) of
this Section 1.2, are hereinafter collectively referred to as the "GUARANTEED
OBLIGATIONS".
(d) Notwithstanding anything to the contrary in this Guaranty or in any
of the other Mezzanine Loan Documents, Lender shall not be deemed to have waived
any right which Lender may have under Section 506(a), 506(b), 1111(b) or any
other provisions of the Bankruptcy Code to file a claim for the full amount of
the Obligations or to require that all collateral shall continue to secure all
of the Obligations owing to Lender in accordance with the Mezzanine Loan
Documents.
Section 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 either or both Guarantors and
shall continue to be effective with respect to any Guaranteed Obligations
arising or created after any attempted revocation by either or both Guarantors
and after (if either or both Guarantors is a natural person) either or both
Guarantors' death (in which event this Guaranty shall be binding upon such
Guarantor's estate and such 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 Guarantors
to Lender with respect to the outstanding Guaranteed Obligations. This Guaranty
may be enforced by Lender and any subsequent holder of any or all of the Notes
and shall not be discharged by the assignment or negotiation of all or part of
any or all of the Notes.
Section 1.4 GUARANTEED OBLIGATIONS NOT REDUCED BY OFFSET. The Guaranteed
Obligations and the liabilities and obligations of Guarantors to Lender
hereunder shall not be reduced, discharged or released because or by reason of
any existing or future offset, claim or defense of any or all of the Borrowers
or any other party against Lender 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 otherwise.
Section 1.5 PAYMENT BY GUARANTOR. If all or any part of the Guaranteed
Obligations shall not be punctually paid within five (5) days from when due,
whether at demand, maturity, acceleration or otherwise, Guarantors shall,
immediately upon demand 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, all such
notices being hereby waived by each Guarantor, 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.
Section 1.6 NO DUTY TO PURSUE OTHERS. It shall not be necessary for
Lender (and each Guarantor hereby waives any rights which such Guarantor may
have to require Lender), in order to enforce the obligations of Guarantors
hereunder, first to (i) institute suit or exhaust its remedies
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against any or all of the Borrowers 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 any or all of the Borrowers 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.
Section 1.7 WAIVERS. Each Guarantor agrees to the provisions of the
Mezzanine Loan Documents and hereby waives notice of (i) any loans or advances
made by Lender to Borrowers, (ii) acceptance of this Guaranty, (iii) any
amendment or extension of any or all of the Notes, the Pledges, the Mezzanine
Loan Agreement or any other Mezzanine Loan Document, (iv) the execution and
delivery by any or all of the Borrowers and Lender of any other loan or credit
agreement or of any or all of the Borrowers' execution and delivery of any
promissory note or other document arising under the Mezzanine Loan Documents or
in connection with any Individual Property, (v) the occurrence of (A) any breach
by any or all of the Borrowers of any of the terms or conditions of the
Mezzanine Loan Agreement or any of the other Mezzanine Loan Documents, or (B) an
Event of Default, (vi) Lender's transfer or disposition of the Guaranteed
Obligations, or any part thereof, (vii) the sale or foreclosure (or the posting
or advertising for the sale or foreclosure) of any collateral for the Guaranteed
Obligations, (viii) protest, proof of non-payment or default by any or all of
the Borrowers, 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 Mezzanine Loan Documents, any documents or agreements evidencing,
securing or relating to any of the Guaranteed Obligations and/or the obligations
hereby guaranteed.
Section 1.8 PAYMENT OF EXPENSES. In the event that either or both
Guarantors shall breach in any material respect or fail to timely perform any
provisions of this Guaranty, Guarantors shall, immediately upon demand by
Lender, pay Lender all costs and expenses (including court costs and reasonable
attorneys' fees) incurred by Lender in the enforcement hereof or the
preservation of Lender's rights hereunder, together with interest thereon at the
Default Rate from the date requested by Lender until the date of payment to
Lender. The covenant contained in this Section shall survive the payment and
performance of the Guaranteed Obligations.
Section 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 either or both Guarantors by Lender shall be
without effect and this Guaranty shall remain (or shall be reinstated to be) in
full force and effect. It is the intention of Borrowers and Guarantors that
Guarantors' obligations hereunder shall not be discharged except by Guarantors'
performance of such obligations and then only to the extent of such performance.
Section 1.10 WAIVER OF SUBROGATION, REIMBURSEMENT AND CONTRIBUTION.
Notwithstanding anything to the contrary contained in this Guaranty, each
Guarantor hereby unconditionally and
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irrevocably waives, releases and abrogates any and all rights it may now or
hereafter have under any agreement, at law or in equity (including, without
limitation, any law subrogating either or both Guarantors to the rights of
Lender), to assert any claim against or seek contribution, indemnification or
any other form of reimbursement from any or all of the Borrowers or any other
party liable for the payment of any or all of the Guaranteed Obligations for any
payment made by either or both Guarantors under or in connection with this
Guaranty or otherwise.
ARTICLE 2
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR'S OBLIGATIONS
Guarantors hereby consent and agree to each of the following and agree that
Guarantors' obligations under this Guaranty shall not be released, diminished,
impaired, reduced or adversely affected by any of the following and waives any
common law, equitable, statutory or other rights (including, without limitation,
rights to notice) which either or both Guarantors might otherwise have as a
result of or in connection with any of the following:
Section 2.1 MODIFICATIONS. Any renewal, extension, increase,
modification, alteration or rearrangement of all or any part of the Guaranteed
Obligations, the Notes, the Pledges, the Mezzanine Loan Agreement, the other
Mezzanine Loan Documents or any other document, instrument, contract or
understanding between any or all of the Borrowers and Lender or any other
parties pertaining to the Guaranteed Obligations or any failure of Lender to
notify either or both Guarantors of any such action.
Section 2.2 ADJUSTMENT. Any adjustment, indulgence, forbearance or
compromise that might be granted or given by Lender to any or all of the
Borrowers or either or both Guarantors.
Section 2.3 CONDITION OF BORROWERS OR GUARANTORS. The insolvency,
bankruptcy, arrangement, adjustment, composition, liquidation, disability,
dissolution or lack of power of any Borrower, either or both Guarantors or any
other Person at any time liable for the payment of all or part of the Guaranteed
Obligations; or any dissolution of any Borrower or either or both Guarantors or
any sale, lease or transfer of any or all of the assets of any Borrower or
either or both Guarantors or any changes in the direct or indirect shareholders,
partners or members, as applicable, of any Borrower or either or both
Guarantors; or any reorganization of any Borrower or either or both Guarantors.
Section 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
Notes, the Pledges, the Mezzanine Loan Agreement or the other Mezzanine Loan
Documents or otherwise creating the Guaranteed Obligations acted in excess of
their authority, (iv) the Guaranteed Obligations violate applicable usury laws,
(v) any Borrower has valid defenses, claims or offsets (whether at law, in
equity or by agreement) which render the Guaranteed Obligations wholly or
partially uncollectible from any
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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)
any Note, any Pledge, the Mezzanine Loan Agreement or any of the other Mezzanine
Loan Documents have been forged or otherwise are irregular or not genuine or
authentic, it being agreed that Guarantors shall remain liable hereon regardless
of whether any Borrower or any other Person be found not liable on the
Guaranteed Obligations or any part thereof for any reason.
Section 2.5 RELEASE OF OBLIGORS. Any full or partial release of the
liability of any Borrower for the Guaranteed Obligations or any part thereof, or
of any co-guarantors, or of any other Person 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 GUARANTORS THAT
GUARANTORS MAY be required to pay the Guaranteed Obligations in full without
assistance or support from any other Person, and neither Guarantor has been
induced to enter into this Guaranty on the basis of a contemplation, belief,
understanding or agreement that other Persons (including Borrower) will be
liable to pay or perform the Guaranteed Obligations or that Lender will look to
other Persons (including any Borrower) to pay or perform the Guaranteed
Obligations.
Section 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.
Section 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.
Section 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 any
collateral, property or security, including, but not limited to, 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.
Section 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 Guarantors that Guarantors are 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.
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Section 2.10 OFFSET. The Notes, the Guaranteed Obligations and the
liabilities and obligations of Guarantors 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 any 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.
Section 2.11 MERGER. The reorganization, merger or consolidation of any
Borrower or either or both Guarantors into or with any other Person.
Section 2.12 PREFERENCE. Any payment by any 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 any Borrower or to any
other Person.
Section 2.13 OTHER ACTIONS TAKEN OR OMITTED. Any other action taken or
omitted to be taken with respect to the Mezzanine Loan Documents, the Guaranteed
Obligations or the security and collateral therefor, whether or not such action
or omission prejudices either or both Guarantors or increases the likelihood
that either or both Guarantors will be required to pay the Guaranteed
Obligations pursuant to the terms hereof, it being the unambiguous and
unequivocal intention of Guarantors that Guarantors shall be obligated to pay
the Guaranteed Obligations when due, notwithstanding any occurrence,
circumstance, event, action or omission whatsoever, whether contemplated or
uncontemplated, and whether or not otherwise or particularly described herein,
which obligation shall be deemed satisfied only upon the full and final payment
and satisfaction of the Guaranteed Obligations.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into the Mezzanine Loan Documents and to extend
credit to Borrowers, each Guarantor represents and warrants to Lender as
follows:
Section 3.1 BENEFIT. Each Guarantor is an Affiliate of each of the
Borrowers, is the owner of a direct or indirect interest in each of the
Borrowers and has received, or will receive, direct or indirect benefit from the
making of this Guaranty with respect to the Guaranteed Obligations.
Section 3.2 FAMILIARITY AND RELIANCE. Each Guarantor is familiar with,
and has independently reviewed books and records regarding, the financial
condition of Borrowers and is familiar with the value of any and all collateral
intended to be created as security for the payment of the Notes or Guaranteed
Obligations; however, neither Guarantor is relying on such financial condition
or the collateral as an inducement to enter into this Guaranty.
Section 3.3 NO REPRESENTATION BY LENDER. Neither Lender nor any other
party has made any representation, warranty or statement to either or both
Guarantors in order to induce either or both Guarantors to execute this
Guaranty.
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Section 3.4 GUARANTOR'S FINANCIAL CONDITION. As of the date hereof, and
after giving effect to this Guaranty and the contingent obligation evidenced
hereby, each Guarantor (a) is and will be solvent, (b) has and will have assets
which, fairly valued, exceed its obligations, liabilities (including contingent
liabilities) and debts, and (c) has and will have property and assets sufficient
to satisfy and repay its obligations and liabilities, including the Guaranteed
Obligations.
Section 3.5 LEGALITY. The execution, delivery and performance by each
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 such 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,
mortgage, charge, lien, contract, agreement or other instrument to which such
Guarantor is a party or which may be applicable to such Guarantor. This Guaranty
is a legal and binding obligation of each Guarantor and is enforceable against
each Guarantor in accordance with its terms, except as limited by bankruptcy,
insolvency or other laws of general application relating to the enforcement of
creditors' rights.
Section 3.6 SURVIVAL. All representations and warranties made by each
Guarantor herein shall survive the execution hereof.
ARTICLE 4
SUBORDINATION OF CERTAIN INDEBTEDNESS
Section 4.1 SUBORDINATION OF ALL GUARANTOR CLAIMS. As used herein, the
term "GUARANTOR CLAIMS" shall mean all debts and liabilities of any or all of
the Borrower to either or both Guarantors, whether such debts and liabilities
now exist or are hereafter incurred or arise, and whether the obligations of any
or all of the Borrowers thereon be direct, contingent, primary, secondary,
several, joint and several, or otherwise, and 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 either or both Guarantors. The
Guarantor Claims shall include, without limitation, all rights and claims of
either or both Guarantors against any or all of the Borrowers (arising as a
result of subrogation or otherwise) as a result of either or both Guarantors'
payment of all or a portion of the Guaranteed Obligations. So long as any
portion of the Obligations or the Guaranteed Obligations remain outstanding,
neither Guarantor shall receive or collect, directly or indirectly, from any
Borrower or any other Person any amount upon the Guarantor Claims.
Section 4.2 CLAIMS IN BANKRUPTCY. In the event of any receivership,
bankruptcy, reorganization, arrangement, debtor's relief or other insolvency
proceeding involving either or both Guarantors as a 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. Each Guarantor hereby assigns such dividends and payments to Lender.
Should Lender receive, for application against the Guaranteed Obligations, any
dividend or payment which is otherwise payable to either or both Guarantors and
which, as among any or all of the Borrowers and either or both Guarantors, shall
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constitute a credit against the Guarantor Claims, then, upon payment to Lender
in full of the Obligations and the Guaranteed Obligations, such 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.
Section 4.3 PAYMENTS HELD IN TRUST. Notwithstanding anything to the
contrary contained in this Guaranty, in the event that either or both Guarantors
should receive any funds, payments, claims and/or distributions which are
prohibited by this Guaranty, each Guarantor agrees to hold in trust for Lender
an amount equal to the amount of all funds, payments, claims and/or
distributions so received, and agrees that it shall have absolutely no dominion
over the amount of such funds, payments, claims and/or distributions so received
except to pay such funds, payments, claims and/or distributions promptly to
Lender, and each Guarantor covenants promptly to pay the same to Lender.
Section 4.4 LIENS SUBORDINATE. Guarantors agree that any liens, security
interests, judgment liens, charges or other encumbrances upon any 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 any Borrower's assets securing payment of the Guaranteed
Obligations, regardless of whether such encumbrances in favor of either or both
Guarantors or Lender presently exist or are hereafter created or attach. Without
the prior written consent of Lender, neither Guarantor shall (i) exercise or
enforce any creditor's rights it may have against any 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 the 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 the assets of any Borrower held by such Guarantor. The foregoing shall in no
manner vitiate or amend, nor be deemed to vitiate or amend, any prohibition in
the Mezzanine Loan Documents against Borrowers granting liens or security
interests in any of its assets to any Person other than Lender.
ARTICLE 5
INTENTIONALLY OMITTED
ARTICLE 6
MISCELLANEOUS
Section 6.1 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 any consent to any
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
435
action in the same, similar or other instances without such notice or demand.
Section 6.2 NOTICES. All notices, demands, requests, consents, approvals
or other communications (any of the foregoing, a "Notice") required, permitted
or desired to be given hereunder shall be in writing and shall be sent by
telefax (with answer back acknowledged) or by registered or certified mail,
postage prepaid, return receipt requested, or delivered by hand or by reputable
overnight courier, addressed to the party to be so notified at its address
hereinafter set forth, or to such other address as such party may hereafter
specify in accordance with the provisions of this SECTION 6.2. Any Notice shall
be deemed to have been received: (a) three (3) days after the date such Notice
is mailed, (b) on the date of sending by telefax if sent during business hours
on a Business Day (otherwise on the next Business Day), (c) on the date of
delivery by hand if delivered during business hours on a Business Day (otherwise
on the next Business Day), and (d) on the next Business Day if sent by an
overnight commercial courier, in each case addressed to the parties as follows:
If to Lender: UBS Warburg Real Estate Investments Inc.
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Fax No. (000) 000-0000
with a copy to: Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax No. (000) 000-0000
and with a copy to: Wachovia Bank, National Association
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxx
Fax No.: (000) 000-0000]
If to Guarantors: c/o Horizon Group Properties, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxx
Fax No.: (000) 000-0000
And with a copy to: c/o Horizon Group Properties Inc.
0000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxxxxxx
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Fax No.: (000) 000 0000
And with a copy to: Xxxxxx Xxxxxx & Xxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
Any party may change the address to which any such Notice is to be delivered by
furnishing ten (10) days' written notice of such change to the other parties in
accordance with the provisions of this SECTION 6.2. Notices shall be deemed to
have been given on the date set forth above, even if there is an inability to
actually deliver any Notice because of a changed address of which no Notice was
given or there is a rejection or refusal to accept any Notice offered for
delivery. Notice for any party may be given by its respective counsel.
Additionally, Notice from Lender may also be given by Servicer.
Section 6.3 GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS. (a) THIS
GUARANTY WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY GUARANTORS AND
ACCEPTED BY LENDER IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THE NOTE WERE
DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A
SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION
RELEATED HERETO, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS
GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF
CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT
THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION, PERFECTION AND ENFORCEMENT OF
THE LIENS AND SECURITY INTERESTS CREATED PURSUANT TO THE MEZZANINE LOAN
DOCUMENTS WITH RESPECT TO THE PROPERTY SHALL BE GOVERNED BY, AND CONSTRUED
ACCORDING TO, THE LAW OF THE STATE, COMMONWEALTH OR DISTRICT, AS APPLICABLE, IN
WHICH THE APPLICABLE INDIVIDUAL PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT,
TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, COMMONWEALTH OR
DISTRICT, THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION,
VALIDITY AND ENFORCEABILITY OF ALL MEZZANINE LOAN DOCUMENTS AND ALL OF THE
OBLIGATIONS ARISING HEREUNDER AND THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH GUARANTOR HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO
ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS GUARANTY AND/OR THE
OTHER MEZZANINE LOAN DOCUMENTS, AND THIS GUARANTY AND THE OTHER MEZZANINE LOAN
DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE
437
STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR EITHER OR
BOTH GUARANTORS ARISING OUT OF OR RELATING TO THIS GUARANTY MAY, AT LENDER'S
OPTION, BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX,
XXXXXX XX XXX XXXX, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND EACH GUARANTOR WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR
HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT,
ACTION OR PROCEEDING, AND EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. GUARANTOR DOES
HEREBY DESIGNATE AND APPOINT:
XXXXXX XXXXXX & XXXXX
000 XXXX 00XX XXXXXX, XXXXX 0000
XXX XXXX, XXX XXXX 00000
ATTENTION: XXXXX X. XXXXXXXXX, ESQ. (CHICAGO OFFICE)
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO IT IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY
RESPECT EFFECTIVE SERVICE OF PROCESS UPON IT IN ANY SUCH SUIT, ACTION OR
PROCEEDING IN THE STATE OF NEW YORK. EACH GUARANTOR (I) SHALL GIVE PROMPT NOTICE
TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT
ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN
OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS AND WHICH SUBSTITUTE
AGENT SHALL BE THE SAME AGENT DESIGNATED BY BORROWER UNDER THE MEZZANINE LOAN
AGREEMENT) PROVIDED THERE SHALL ALWAYS BE THE SAME AUTHORIZED AGENT FOR BOTH
GUARANTORS, AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS
AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED
WITHOUT LEAVING A SUCCESSOR PROVIDED THERE SHALL ALWAYS BE THE SAME AUTHORIZED
AGENT FOR BOTH GUARANTORS. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF
LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST EITHER OR BOTH GUARANTORS IN ANY
OTHER JURISDICTION.
438
Section 6.4 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.
Section 6.5 AMENDMENTS. This Guaranty may be amended only by an
instrument in writing executed by the party(ies) against whom such amendment is
sought to be enforced.
Section 6.6 PARTIES BOUND; ASSIGNMENT. This Guaranty shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors, permitted assigns, heirs and legal representatives. Lender shall
have the right to assign or transfer its rights under this Guaranty in
connection with any assignment of the Loan and the Mezzanine Loan Documents. Any
assignee or transferee of Lender shall be entitled to all the benefits afforded
to Lender under this Guaranty. Guarantor shall not have the right to assign or
transfer its rights or obligations under this Assignment without the prior
written consent of Lender, and any attempted assignment without such consent
shall be null and void.
Section 6.7 HEADINGS. Section headings are for convenience of reference
only and shall in no way affect the interpretation of this Guaranty.
Section 6.8 RECITALS. The recitals 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.
Section 6.9 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.
Section 6.10 RIGHTS AND REMEDIES. If either or both Guarantors become
liable for any indebtedness owing by Borrowers 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
Guarantors. 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.
439
Section 6.11 ENTIRETY. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT
OF GUARANTORS AND LENDER WITH RESPECT TO EACH 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 GUARANTORS AND LENDER AS A
FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF
DEALING BETWEEN EITHER OR BOTH GUARANTORS 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. THERE
ARE NO ORAL AGREEMENTS BETWEEN EITHER OR BOTH GUARANTORS AND LENDER.
Section 6.12 WAIVER OF RIGHT TO TRIAL BY JURY. EACH GUARANTOR HEREBY
AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT 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 NOTES, THE PLEDGES, THE
MEZZANINE LOAN AGREEMENT OR THE OTHER MEZZANINE 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 EACH 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 EACH GUARANTOR.
Section 6.13 COOPERATION. Each Guarantor acknowledges that Lender and its
successors and assigns may (i) sell this Guaranty, any or all of the Notes and
the other Mezzanine 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, any or all of the Notes and the other Mezzanine
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 one or more interests therein to investors (the transactions referred to
in clauses (i) through (iv) are hereinafter each referred to as "Secondary
Market Transaction"). Guarantors shall cooperate with Lender in effecting any
such Secondary Market Transaction and shall cooperate to implement all
requirements imposed by any of the Rating Agencies involved in any Secondary
Market Transaction. Guarantors shall provide such reasonable information and
documents relating to Guarantors, Borrowers, the Properties and any tenants of
the Properties as Lender may reasonably request in connection with such
Secondary Market Transaction. In addition, Guarantors shall make available to
Lender all information concerning its business and operations that Lender may
reasonably request. Lender shall be permitted to share all such information with
the investment banking firms, Rating Agencies,
440
accounting firms, law firms and other third-party advisory firms involved with
the Loan and the Mezzanine Loan Documents or the applicable Secondary Market
Transaction. It is understood that the information provided by Guarantors to
Lender, including any and all financial statements provided to Lender pursuant
to SECTION 5.2 hereof, may ultimately be incorporated into the offering
documents for the Secondary Market Transaction and thus various investors and
potential 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, Guarantors in the form
as provided by Guarantors. 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.
Section 6.14 REINSTATEMENT IN CERTAIN CIRCUMSTANCES. If at any time any
payment of the principal of or interest under any or all of the Notes or any
other amount payable by any or all of Borrowers under the Mezzanine Loan
Documents is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of the any or all of the Borrowers or
otherwise, Guarantors' obligations hereunder with respect to such payment shall
be reinstated as though such payment had been due but not made at such time.
Section 6.15 GENDER; NUMBER; GENERAL DEFINITIONS. Unless the context
clearly indicates a contrary intent or unless otherwise specifically provided
herein, (a) words used in this Guaranty may be used interchangeably in the
singular or plural form, (b) any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, (c) the word "Borrower" shall
mean "each Borrower and any subsequent owner or owners of the Property or any
part thereof or interest therein", (d) the word "Lender" shall mean "Lender and
any subsequent holder of any or all of the Notes", (e) the word "Note" or
"Notes" shall mean "the Note (or Notes) and any other evidence of indebtedness
secured by the Mezzanine Loan Agreement", (f) the word "Property" or
"Properties" shall include any portion of any Individual Property or the
Properties and any interest therein, and (g) the phrases "attorneys' fees",
"legal fees" and "counsel fees" shall include any and all attorneys', paralegal
and law clerk fees and disbursements, including, but not limited to, fees and
disbursements at the pre-trial, trial and appellate levels, incurred or paid by
Lender in protecting its interest in the Property, the Leases and/or the Rents
and/or in enforcing its rights hereunder.
Section 6.16 JOINT AND SEVERAL. If there is more than one Guarantor, the
obligations of each such Guarantor shall be joint and several.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and
year first above written.
HORIZON GROUP PROPERTIES, INC.,
a Maryland corporation
By:
------------------------------------------
Name:
Title:
HORIZON GROUP PROPERTIES, L.P.,
a Delaware limited partnership
By: Horizon Group Properties, Inc., a Maryland
corporation, its General Partner
By:
--------------------------------------
Name:
Title:
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