AMENDED AND RESTATED IRREVOCABLE CROSS COLLATERAL GUARANTY OF PAYMENT AND PERFORMANCE
Exhibit
10.7
Loan
Nos. __________ and __________ (excluding Loan No. _________ and
______)
Dated as
of January 15, 2010
AMENDED AND RESTATED
IRREVOCABLE CROSS COLLATERAL GUARANTY OF PAYMENT AND
PERFORMANCE
THIS AMENDED AND RESTATED IRREVOCABLE
CROSS COLLATERAL GUARANTY OF PAYMENT AND PERFORMANCE (hereinafter called
“Guaranty”) is made by
____________ (“Guarantor”) in favor of THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation (“Prudential”), and VPCM, LLC, a Virginia limited
liability company (“VPCM”) (collectively, “Lender”, which shall also mean
successors and assigns who become holders of the Note).
W I T N E S S E T
H:
WHEREAS, Guarantor is the
maker of, or has assumed the obligations of the maker of, that certain Amended
and Restated Promissory Note dated as of November 12, 2004 in the original
principal amount of _____________ ($_________) and payable to the order of
Lender (the “Existing Guarantor Note”; the loan evidenced by the Existing
Guarantor Note is herein referred to as the “Existing Guarantor
Loan”);
WHEREAS, the Existing
Guarantor Loan was made pursuant to that certain Amended and Restated Loan
Agreement dated as of November 12, 2004 (the “Existing Loan Agreement”) by
and among, inter alia, Lender and Guarantor relating to seven (7)
cross-collateralized and cross-defaulted loans in the aggregate principal amount
of $150,000,000.00 (the “Existing Loans”); and
WHEREAS, Guarantor, Xxxx-Xxxx
Realty Corporation, a Maryland corporation (the “REIT Corporation”), and
Xxxx-Xxxx Realty, L.P., a Delaware limited partnership (the
“Operating Partnership”), and the Borrowers listed on Exhibit A
attached hereto and made a part hereof (hereinafter, excluding Guarantor,
referred to collectively as “Borrowers”) have, by that certain First Mortgage
Loan Application Nos. __________, dated January 13, 2010 (the
“Application”), applied for the Loan in the aggregate loan amount of
$150,000,000.00 (the “Aggregate Loan Amount”); and
WHEREAS, Guarantor, Borrowers,
the REIT Corporation, the Operating Partnership, and Lender have agreed,
pursuant to that certain Amended and Restated Loan Agreement dated of even date
herewith (the “Loan Agreement”) by and among Guarantor, Borrowers, the REIT
Corporation, the Operating Partnership and Lender relating to seven (7)
cross-collateralized and cross-defaulted loans in the aggregate principal amount
of $150,000,000.00 (hereinafter, excluding the loan made to Guarantor, referred
to collectively as the “Loan”), to refinance the seven (7) cross-collateralized
and cross-defaulted loans referenced in the Existing Loan Agreement, to amend
and restate the terms thereof, and to re-allocate the loan amounts among the
seven (7) Existing Loans representing additional advances to certain borrowers
under the Loan Agreement and corresponding reductions of loan amounts to other
borrowers under the Loan Agreement; and
WHEREAS, the Loan is, pursuant
to the terms of the Application, divided into seven (7) individual loans (the
“Individual Loans”), to be made by Lender in the amounts set forth on Exhibit B
attached hereto and made a part hereof; one of those Individual Loans is a loan
of $_________ (the “_________ Loan”) to Guarantor secured by real property
located in Bergen County, New Jersey, known as _________________ (the “_________
Property”) and which Loan is known as Loan No. ________ and _______, and
which Loan is evidenced by an Amended, Restated and Consolidated Promissory Note
in favor of Prudential in the original principal amount of _____________
($_________) and an Amended, Restated and Consolidated Promissory Note in favor
of VPCM in the original principal amount of _____________ ($_________);
and
WHEREAS, Lender has agreed to
make the Loans to Guarantor and the other Borrowers pursuant to the terms and
conditions set forth in the Loan Agreement; and
WHEREAS, Guarantor and each
other Borrower have executed and delivered to the Lender Amended, Restated and
Consolidated Promissory Notes (the “New Notes”) in the aggregate principal
amount of $150,000,000.00 as evidence of their indebtedness to
Lender; and one or more of the New Notes is executed by Guarantor in
its capacity as a Borrower and as an owner of its respective Properties as
listed on Exhibit A
attached hereto, which New Notes are executed in order to evidence the portion
of the Loan that is allocated to such Individual Loans for such Properties owned
by Guarantor; and
WHEREAS, to secure payment of
the New Notes and the performance of each Borrower’s obligations under the Loan
Agreement, each Borrower has executed and delivered to Lender the Security
Documents (as defined in the Loan Agreement) conveying to or for the benefit of
Lender, as mortgagees or beneficiaries, as applicable, certain land and
improvements thereon, as well as the other Loan Documents (as such term is
defined in the Loan Agreement; any term not otherwise defined herein
shall have the meaning assigned to such term in the Loan Agreement);
and
WHEREAS, the _________________
Loan is one of the Individual Loans, and is evidenced and secured by, inter alia, the
following:
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(i)
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Guarantor’s
Amended, Restated and Consolidated Promissory Note of even date herewith
in favor of Prudential in the original principal amount of _____________
($_________) and Guarantor’s Amended, Restated and Consolidated Promissory
Note in favor of VPCM in the original principal amount of _____________
($_________) (collectively, the “_________________ Note”);
and
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(ii)
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That
certain Amended, Restated and Consolidated Mortgage and Security Agreement
of even date herewith between Borrower and Lender, to be recorded in the
real estate records of Bergen County, New Jersey (the “_________________
Mortgage”), encumbering the _________________ Property and securing the
_________________ Note; and
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WHEREAS, notwithstanding the
division of the Loan into seven (7) Individual Loans, certain terms, conditions
and provisions of the Application with respect to the Individual Loans relate to
all of the Individual Loans in the aggregate, and the relationship of all of the
Individual Loans to each other, including, but not limited to, provisions
relating to cross-default between the Loans, cross-collateral issues relating to
the Loans, and provisions relating to release of or substitution of collateral
(the “Master Loan Terms”); and
WHEREAS, the REIT Corporation
and the Operating Partnership own, directly or indirectly through qualified REIT
subsidiaries, Guarantor and all of the Borrowers; and
WHEREAS, the entire Loan in
the aggregate principal amount of $150,000,000.00 is to be secured by the
Properties listed on Exhibit A
attached hereto; notwithstanding that the Loan is divided into seven (7)
Individual Loans, Guarantor acknowledges that Lender would not make any of the
Individual Loans, or less than all of the Individual Loans, pursuant to the
provisions in the Application relating to the Individual Loans, without making
all seven (7) Individual Loans in compliance with the terms of the Application
and except in accordance with all the provisions set forth in this Guaranty;
and
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WHEREAS, Guarantor
acknowledges that the provisions set forth in this Guaranty and otherwise set
forth in the Loan Documents relating to cross-default, cross-collateralization
and the other Master Loan Terms have resulted in more favorable economic terms
for the Individual Loan to Guarantor, and that Guarantor would be unable to
receive financing in the amount, or at the rate, or otherwise under more
favorable terms, than those set forth herein and, therefore, there exists direct
and valuable consideration for Guarantor’s consent and agreement to the Master
Loan Terms; and
WHEREAS, one of the Master
Loan Terms involves the Cross-Collateralization of each of the Properties,
whereby the Properties of each Borrower will secure the entire Loan by virtue of
securing such Borrower’s New Note evidencing such Borrower’s Individual Loan and
such Borrower’s Cross-Collateral Guaranty (as defined in the Loan Agreement)
evidencing such Borrower’s obligation to repay the other Individual Loans;
and
WHEREAS, the _________________
Property owned by Guarantor will secure the entire Loan by virtue of securing
the _________________ Note evidencing Guarantor’s Individual Loan and
Guarantor’s Cross-Collateral Guaranty evidencing Guarantor’s obligation to repay
the other Individual Loans; and
WHEREAS, Guarantor will derive
financial benefit from the Individual Loans to the other Borrowers evidenced and
secured by the New Notes, Security Instruments, Loan Agreement and other Loan
Documents; the execution and delivery of this Guaranty by Guarantor is a
condition precedent to the advancement by Lender of the Loan and each of the
Individual Loans in order to evidence the obligation of Guarantor for repayment
of the Obligations other than the _________________ Loan entered into with
respect to the _________________ Property, and, with respect to such New Notes
and Individual Loans to such Borrowers, this Guaranty is intended to evidence
the separate obligations of Guarantor under the Loan Agreement as a guarantor of
a portion of the Loan as and to the extent described herein and subject to the
Limited Recourse Liability provisions incorporated by reference herein from the
_________________ Note; and
WHEREAS, in connection with
the Existing Loans other than the Existing Guarantor Loan Guarantor delivered to
Lender that certain Amended and Restated Irrevocable Cross-Collateral Guaranty
of Payment and Performance dated as of April 30, 1998 (the “Existing
Guaranty”); and
WHEREAS, all of the terms,
covenants and provisions of the Existing Guaranty are hereby modified, amended
and restated so that henceforth such terms, covenants and provisions shall be
those set forth in this Guaranty, and the Existing Guaranty, as so modified,
amended and restated in its entirety, is hereby ratified and confirmed in all
respects by Guarantor.
NOW, THEREFORE, in
consideration of the foregoing recitals, which are incorporated into the
operative provisions of this Guaranty by this reference, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
conclusively acknowledged, Guarantor hereby covenants and agrees with Lender as
follows:
FOR VALUE RECEIVED, the
receipt and sufficiency of which is hereby acknowledged, and in accordance with
the terms provided below, Guarantor absolutely and unconditionally guarantees
and agrees to pay to Lender at the address designated in the Notes (defined
below) for payment thereof or as such address may be changed as provided in the
Notes or the Instrument, all Obligations (defined below) of Borrowers, under the
Notes and other Documents (defined below), and absolutely and unconditionally
covenants and agrees with Lender pursuant to the terms of this Guaranty,
subject, however, to the provisions of Section 3 hereof, as
follows:
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1. As
used in this Guaranty, the term (i) “Documents” shall have the same
meaning as set forth in the Instruments (defined below); (ii) “Obligations” shall have the
same meaning as set forth in the Instruments; (iii) “Notes” shall refer to the New
Notes, but excluding the _________________ Note, as the same may be modified,
amended, renewed, extended, and/or substituted, which Notes are secured by the
Instrument (as hereinafter defined); (iv) “Instruments” shall refer to
each Amended, Restated and Consolidated Mortgages and Security Agreements of
even date herewith, from Borrowers to or for the benefit of Lender, and recorded
or to be recorded in the public records of Bergen County, New Jersey, which
secure the Notes; (v) “Cross Collateral Property”
shall have the same meaning as set forth in the Instruments; (vi) “Loans” shall mean the Loan
pursuant to the Loan Agreement, but excluding the Loan evidenced by the
_________________ Note, and (vii) “Costs” shall have the same
meaning as set forth in the Instrument;. Capitalized terms used
herein and not defined herein shall have the meaning ascribed to such terms in
the Instruments.
2. Subject
to the provisions of Section 3 hereof, in the event Borrowers fail to pay
the Obligations, Guarantor shall upon written demand (not later than five (5)
days after written demand) of Lender promptly and with due diligence pay to and
for the benefit of Lender all of the Obligations, and, in addition, Guarantor
further agrees to pay any and all Costs incurred or expended by Lender in
collecting any of the Obligations or in enforcing any right granted
hereunder. This Guaranty is the “Note” referred to and secured by the
Amended, Restated and Consolidated Second Priority Mortgage and Security
Agreement (Subordinate Mortgage to Secure Cross Collateral Guaranty) of even
date herewith between Borrower and Lender, to be recorded in the real estate
records of Bergen County, New Jersey and is secured by the _________________
Property.
3. Guarantor’s
liability under this Guaranty is expressly not subject to, or limited by, any
limitations on Borrowers’ liability set forth in the Notes, and Guarantor agrees
and acknowledges that Lender is relying upon this Guaranty in making the Loans
to Borrowers. Notwithstanding the foregoing, the provisions of
Paragraph 8 and Paragraph 9 of the _________________ Note are
incorporated into this Guaranty as if such provisions were set forth in their
entirety in this Guaranty. Guarantor agrees that any exculpatory
language (the “Other Exculpatory Language”) contained in the Notes (other than
the _________________ Note) which Other Exculpatory Language limits any
liability of Guarantor with respect to the Individual Loans related to such
Properties, shall in no event apply to limit Lender’s recourse under this
Guaranty, and the Other Exculpatory Language will not prevent Lender from
proceeding against Guarantor to enforce this Guaranty in the manner set forth in
the following sentences. Notwithstanding the foregoing provisions of
this Section 3 with respect to the Other Exculpatory Language applicable to
Guarantor’s obligations and liabilities under Notes and Security Instruments
(other than those with respect to the _________________ Property), Guarantor’s
liability under this Guaranty shall be limited to Guarantor’s interest in the
_________________ Property and the other Collateral (as defined in the
_________________ Mortgage) encumbered or conveyed thereby in the Loan Documents
with respect to the _________________ Property. Guarantor’s limited
recourse liability under this Guaranty shall be subject to the same limitations
and other provisions as are set forth in Paragraph 8 and Paragraph 9
of the _________________ Note, all of which terms and provisions are
incorporated herein by this reference, and, except to the extent provided
therein, Lender shall not enforce any deficiency judgment or personal money
judgment against Guarantor or any of its respective constituent partners, or any
of their respective officers, directors, agents, or shareholders with respect to
the obligations arising under and evidenced by this Guaranty.
4. In
the event that Lender elects to foreclose or to accept a deed-in-lieu of
foreclosure under the Instruments, Guarantor hereby acknowledges and agrees that
Guarantor’s recourse liability under this Guaranty as determined above shall be
calculated after deduction from the outstanding Obligations (including, but not
limited to, all principal, accrued interest, Prepayment Premium [as defined in
the Notes], advances and other charges) of (i) the amount of money bid by
or received by Lender at a foreclosure sale, or (ii) the value of the Cross
Collateral Property or any other property received by Lender as consideration
for acceptance of a deed-in-lieu of foreclosure.
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5. In
the event that Lender accepts a deed-in-lieu of foreclosure, the value of the
Cross Collateral Property and any other property received by Lender shall be
conclusively determined by an independent MAI appraiser, selected by Lender in
its sole discretion, having not less than five (5) years’ experience in
appraising commercial real estate in the area where the Cross Collateral
Property is located. The fees and costs of said MAI appraiser shall
be paid by Guarantor.
6. Guarantor’s
recourse liability under this Guaranty shall continue with respect to any and
all Obligations, until Lender has been paid the full amount of the
Obligations from
any person or entity at the time of foreclosure or following an Event of
Default; provided, however, that Guarantor’s recourse liability under this
Guaranty shall be in addition to, and not in lieu of, any liability or
obligations of Guarantor under any other document or other instrument delivered
by Guarantor in connection with the Loans.
7. Guarantor
also acknowledges and agrees that Lender shall have the right to seek collection
of the recourse portion of the Loans under this Guaranty from Guarantor without
commencement of any foreclosure proceedings, subject, however, to the terms of
Section 3 hereof.
8. Guarantor
expressly waives presentment for payment, demand, notice of demand and of
dishonor and nonpayment of the Obligations or any part thereof, notice of
intention to accelerate the maturity of the Obligations or any part thereof,
notice of disposition of collateral, notice of acceleration of the maturity of
the Obligations or any part thereof, protest and notice of protest, diligence in
collecting, and the bringing of suit against any other
party. Guarantor agrees that Lender shall be under no obligation to:
(i) notify Guarantor of its acceptance of this Guaranty or of any advances
made or credit extended on the faith of this Guaranty; (ii) notify
Guarantor of Borrowers’ failure to make payments due under the Notes as it
matures or the failure of Borrowers to pay any of the Obligations as they mature
or any default in performance of any obligations required by the Notes, the
Instruments or any other Document; (iii) use diligence in preserving the
liability of any person with respect to the Obligations, or with respect to the
Notes, the Instruments or any other Document; (iv) use diligence in
collecting payments or demanding performance required by the terms of the Notes,
the Instruments or any other Document; or (v) bring suit against, or take
any other action against, any party to enforce collection of the Notes, the
Instruments or any other Document.
9. Guarantor
waives all legal defenses (at law or in equity) given or available to sureties
or guarantors other than the actual payment in full of all Obligations, and
waives all legal defenses (at law or in equity) based upon the validity,
legality or enforceability of the Notes, the Instruments or any other Document
(including, without limitation, any claim that the Notes, the Instruments or any
other Document is or was in any way usurious), or otherwise with respect to the
Obligations. In accordance with the terms of this Guaranty, Guarantor
agrees and acknowledges that it shall be primarily liable for payment of the
Obligations (subject only to the limitations set forth above) in the event of
default or foreclosure.
10. Guarantor
acknowledges and agrees that from time to time, at Lender’s discretion, with or
without valuable consideration, without authorization from or notice to
Guarantor, and without impairing, modifying, releasing, limiting or otherwise
affecting Guarantor’s liability under this Guaranty, Lender may: (i) alter,
compromise, accelerate, renew, extend or change the time or manner for the
payment of any or all of the Obligations due under the Notes, the
Instruments or any other Document; (ii) increase or reduce the rate of
interest with respect to the Notes or Loans; (iii) take and surrender
security, exchange security by way of substitution, or in any way Lender deems
necessary take, accept, withdraw, subordinate, alter, amend, modify or eliminate
security; (iv) add or release or discharge endorsers, guarantors or other
obligors; (v) make changes of any kind whatsoever in the terms of the
Notes, the Instruments or any other Document; (vi) make changes of any kind
whatsoever in the manner Lender does business with Borrowers; (vii) settle
or compromise with Borrowers or any other person(s) liable on the Notes, the
Instruments or any other Document on such terms as Lender determines;
(viii) apply all moneys received from Borrowers or others, or from any
security held (whether or not held under a mortgage, deed of trust, deed to
secure debt or other instrument), in such manner upon the Notes or upon any
other obligation arising under the Instruments or any other Document (whether
then due or not) as Lender determines to be in its best interest, and without in
any way being required to marshal securities or assets or to apply all or any
part of such moneys upon any particular part of the Notes, the Instruments or
any other Document, except to the extent as may be expressly provided
therein.
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11. Guarantor
agrees that Lender is not required to retain, hold, protect, exercise due care
with respect to, perfect security interests in, or otherwise assure or safeguard
any security for the Notes or the Loans. Guarantor agrees and
acknowledges that Lender’s failure to do any of the foregoing and Lender’s
failure to exercise any other right or remedy available to Lender shall in no
way affect or alter any of Guarantor’s obligations under this Guaranty or any
security furnished by Guarantor, or give Guarantor any recourse against
Lender.
12. Guarantor
agrees that its liability under this Guaranty shall not be modified, changed,
released, limited or impaired in any manner whatsoever on account of any or all
of the following: (i) the incapacity, death, disability, dissolution or
termination of Guarantor, Borrowers, Lender or any other person or entity;
(ii) the failure by Lender to file or enforce a claim against the estate
(either in administration, bankruptcy or other proceeding) of Borrowers or any
other person or entity; (iii) the inability of Lender, Guarantor or any
other person or entity to recover from Borrowers or any other party due to the
expiration of any statute of limitations or due to any other cause whatsoever;
(iv) the claim or assertion (whether or not successful) by Borrowers or any
other person or entity of any available defenses, set-off rights or
counterclaims (other than payment in full of the Obligations) during any
judicial, arbitration, or mediation proceeding; (v) the transfer(s) of any
portion of the Cross Collateral Property encumbered by the Instruments or of any
other secured collateral by other instrument securing payment of the
Obligations; (vi) any modifications, extensions, amendments, consents,
releases or waivers with respect to the Notes, the Instruments or any other
Document, including, but not limited to, any other instrument that may now or
hereafter secure the payment of the Obligations or this Guaranty;
(vii) Lender’s failure to give any notice to Guarantor of any default under
the Notes, the Instruments or any other Document, including, but not limited to,
any other instrument securing the payment of the Obligations or this Guaranty;
(viii) Guarantor is or becomes liable for any indebtedness owed by
Borrowers to Lender other than that which is secured by this Guaranty; or
(ix) any impairment, modification, change, release or limitation of the
liability of, or stay of actions or lien enforcement proceedings against,
Borrowers, its property, or its estate in bankruptcy resulting from the
operation of any present or future provision of 11 U.S.C. §101 et. seq. or any other present
or future federal or state insolvency, bankruptcy or similar law (all of the
foregoing hereinafter collectively called “Applicable Bankruptcy Law”) or
from the decision of any court.
13. Guarantor
agrees and acknowledges that Lender shall not be required to (i) pursue any
other remedies before invoking the benefits of the guaranties contained in this
Guaranty, or (ii) make demand upon or institute suit or otherwise pursue or
exhaust its remedies against Borrowers or any surety other than Guarantor or to
proceed against any security now or hereafter existing for the payment of any of
the Obligations. Guarantor also acknowledges that Lender may maintain
an action on this Guaranty without joining Borrowers in such action and without
bringing a separate action against Borrowers.
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14. If
the Notes, the Instruments or any other Document cannot be enforced against
Borrowers for any reason whatsoever (including but not limited to the legal
defenses of ultra
xxxxx, lack of authority, illegality, force majeure, act of God,
usury or impossibility), such unenforceability shall not affect Guarantor’s
liability under this Guaranty. Guarantor agrees that it shall be
liable to the extent provided in this Guaranty notwithstanding the fact that
Borrowers may be held not to be liable for such Obligations or not liable to the
same extent as Guarantor’s liability.
15. Guarantor
agrees that in the event that Borrowers do not or otherwise are unable to pay
the Obligations for any reason (including, without limitation, liquidation,
dissolution, receivership, conservatorship, insolvency, bankruptcy, assignment
for the benefit of creditors, sale of all or substantially all assets,
reorganization, arrangement, composition, or readjustment of, or other similar
proceedings affecting the status, composition, identity, existence, assets or
obligations of Borrowers, or the disaffirmance or termination of any of the
Obligations in or as a result of any such proceeding), Guarantor shall pay the
Obligations and such occurrence shall in no way affect Guarantor’s obligations
under this Guaranty.
16. Should
the status, structure or composition of Borrowers or any of them change,
Guarantor agrees that this Guaranty shall continue and shall also cover the
Obligations of Borrowers under the new status, structure or composition of
Borrowers, or of any successor. This Guaranty shall remain in full
force and effect notwithstanding any transfer of the Cross Collateral Property
encumbered by the Instruments.
17. In
the event any payment by Borrowers to Lender is held to constitute a preference
under any Applicable Bankruptcy Law, or if for any other reason Lender is
required to refund or does refund such payment or pay such amount to any other
party, Guarantor acknowledges that such payment by Borrowers to Lender shall not
constitute a release of Guarantor from any liability under this Guaranty, but
Guarantor agrees to pay such amount to Lender upon demand and this Guaranty
shall continue to be effective or shall be reinstated, as the case may be, to
the extent of any such payment or payments.
18. Guarantor
agrees that it shall not have (i) the right to the benefit of, or to direct
the application of, any security held by Lender (including the Cross Collateral
Property covered, conveyed or encumbered by the Instruments and any other
instrument securing the payment of the Obligations), (ii) any right to
enforce any remedy which Lender now has or hereafter may have against Borrowers,
or (iii) any right to participate in any security now or hereafter held by
Lender.
19. Guarantor
also agrees that it shall not have (i) any defense arising out of the
absence, impairment or loss of any right of reimbursement or subrogation or
other right or remedy of Guarantor against Borrowers or against any security
resulting from the exercise or election of any remedies by Lender (including the
exercise of the power of sale under the Instruments), or (ii) any defense
arising by reason of any disability or other defense of Borrowers or by reason
of the cessation, from any cause (other than as a result of payment in full of
the Obligations), of Borrowers’ liability under the Notes, the Instruments or
any other Document.
20. Guarantor
agrees that any payment it makes of any amount pursuant to this Guaranty shall
not in any way entitle Guarantor to any right, title or interest (whether by way
of subrogation or otherwise) in and to the Notes, the Instruments or any other
Document, or any proceeds attributable to the Notes, the Instruments or any
other Document, unless and until the full amount of the Obligations owing to
Lender has been fully paid. At such time as the full amount of the
Obligations owing to Lender has been fully paid, Guarantor shall be subrogated
as to any payments made by it to Lender’s rights against Borrowers and/or any
endorsers, sureties or other guarantors. For the purposes of the
preceding sentence only, the full amount of the Obligations shall not be deemed
to have been paid in full by foreclosure of the Instruments or by acceptance of
a deed-in-lieu of foreclosure, and Guarantor hereby waives and disclaims any
interest which it might have in the Cross Collateral Property encumbered by the
Instruments or other collateral security for the Obligations, by subrogation or
otherwise, following such foreclosure or Lender’s acceptance of a deed-in-lieu
of foreclosure.
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21. Guarantor
expressly subordinates its rights to payment of any indebtedness owing from
Borrowers to Guarantor(including, but not limited to, property management and
construction management fees and leasing commissions), whether now existing or
arising at any time in the future, to the right of Lender to first receive or
require payment of the Obligations in full (and including interest accruing on
the Notes after any petition under Applicable Bankruptcy Law, which
post-petition interest Guarantor agrees shall remain a claim that is prior and
superior to any claim of Guarantor notwithstanding any contrary practice, custom
or ruling in proceedings under such Applicable Bankruptcy
Law). Guarantor further agrees, upon the occurrence of an Event of
Default, not to accept any payment or satisfaction of any kind of indebtedness
of Borrowers to Guarantor or any security for such indebtedness without Lender’s
prior written consent. If Guarantor should receive any such payment,
satisfaction or security for any indebtedness owed by Borrowers to Guarantor,
Guarantor agrees to deliver the same without delay to Lender in the form
received, endorsed or assigned for application on account of, or as security
for, the Recourse Liability; until such payment, satisfaction or security is
delivered, Guarantor agrees to hold the same in trust for Lender.
22. Under
no circumstances shall the aggregate amount paid or agreed to be paid under this
Guaranty exceed the highest lawful rate permitted under applicable usury law
(the “Maximum Rate”) and
the payment obligations of Guarantor hereunder are hereby limited
accordingly. If under any circumstances, whether by reason of
advancement or acceleration of the unpaid principal balance of the Notes or
otherwise, the aggregate amounts paid hereunder shall include amounts which by
law are deemed interest and which could exceed the Maximum Rate, Guarantor
stipulates that payment and collection of such excess amounts shall have been
and will be deemed to have been the result of a mistake on the part of both
Guarantor and Lender, and Lender shall promptly credit such excess (only to the
extent such interest payments are in excess of the Maximum Rate) against the
unpaid principal balance of the Notes, and any portion of such excess payments
not capable of being so credited shall be refunded to Guarantor. The
term “applicable law” as
used in this paragraph shall mean the laws of the Property State (as such term
is defined in the Instruments) or the laws of the United States, whichever laws
allow the greater rate of interest, as such laws now exist or may be changed or
amended or come into effect in the future.
23. Guarantor
hereby represents, warrants and covenants to and with Lender as follows:
(i) the making of the Loans by Lender to Borrowers are and will be of
direct interest, benefit and advantage to Guarantor; (ii) Guarantor is
solvent, is not bankrupt and has no outstanding liens, garnishments,
bankruptcies or court actions which could render Guarantor insolvent or
bankrupt; (iii) there has not been filed by or against Guarantor a petition
in bankruptcy or a petition or answer seeking an assignment for the benefit of
creditors, the appointment of a receiver, trustee, custodian or liquidator with
respect to Guarantor or any substantial portion of Guarantor’s property,
reorganization, arrangement, rearrangement, composition, extension, liquidation
or dissolution or similar relief under Applicable Bankruptcy Law; (iv) all
reports, financial statements and other financial and other data which have been
or may hereafter be furnished by Guarantor to Lender in connection with this
Guaranty are or shall be true and correct in all material respects and do not
and will not omit to state any fact or circumstance necessary to make the
statements contained therein not misleading and do or shall fairly represent the
financial condition of Guarantor as of the dates and the results of Guarantor’s
operations for the periods for which the same are furnished, and no material
adverse change has occurred since the dates of such reports, statements and
other data in the financial condition of Guarantor; (v) the execution,
delivery and performance of this Guaranty do not contravene, result in the
breach of or constitute a default under any mortgage, deed of trust, lease,
promissory note, loan agreement or other contract or agreement to which
Guarantor is a party or by which Guarantor or any of its properties may be bound
or affected and do not violate or contravene any law, order, decree, rule or
regulation to which Guarantor is subject; (vi) there are no judicial or
administrative actions, suits or proceedings pending or, to the best of
Guarantor’s knowledge, threatened against or affecting Guarantor which would
have a material adverse effect on either the Property or Borrower’s ability to
perform its obligations, or involving the validity, enforceability or priority
of this Guaranty; and (vii) this Guaranty constitutes the legal, valid and
binding obligation of Guarantor enforceable in accordance with its
terms.
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24. Guarantor
will furnish to Lender the financial statements and other information as to
Guarantor as are described in Section 3.15 of the Instrument, on or before the
deadlines set forth therein. Guarantor will provide to Lender such other
financial information and statements concerning Guarantor's financial status as
Lender may request from time to time, all of which shall be in form and
substance acceptable to Lender. Guarantor shall be in default hereunder if there
is any falsity in any material respect or any material omission in any
representation or statement made by Guarantor to Lender or in any information
furnished Lender, by or on behalf of Borrower or Guarantor, in connection with
the Loan and/or any of the Obligations, as determined by Lender in its sole and
absolute discretion.
25. Guarantor
further agrees to the following:
(a) Where
two or more persons or entities have executed this Guaranty, unless the context
clearly indicates otherwise, all references herein to “Guarantor” shall mean the
guarantors hereunder or either or any of them. All of the obligations
and liability of said guarantors hereunder shall be joint and
several. Suit may be brought against said guarantors, jointly and
severally, or against any one or more of them, or less than all of them, without
impairing the rights of Lender against the other or others of said
guarantors. Lender may compound with any one or more of said
guarantors for such sums or sum as it may see fit and/or release such of said
guarantors from all further liability to Lender for such indebtedness without
impairing the right of Lender to demand and collect the balance of such
indebtedness from the other or others of said guarantors not so compounded with
or released. However, said guarantors agree that such compounding and
release shall in no way impair the their rights as among
themselves.
(b) Except
as otherwise provided herein, the rights of Lender are cumulative and shall not
be exhausted by its exercise of any of its rights under this Guaranty or
otherwise against Guarantor or by any number of successive actions, until and
unless all Obligations have been paid and each of the obligations of Guarantor
under this Guaranty have been performed.
(c) Intentionally
Omitted.
(d) Any
notice or communication required or permitted under this Guaranty shall be given
in writing, sent by (i) personal delivery, or (ii) expedited delivery
service with proof of delivery, or (iii) United States mail, postage
prepaid, registered or certified mail, sent to the intended addressee at the
address shown below, or to such other address or to the attention of such other
person(s) as hereafter shall be designated in writing by the applicable party
sent in accordance herewith. Any such notice or communication shall
be deemed to have been given and received either at the time of personal
delivery or, in the case of delivery service or mail, as of the date of first
attempted delivery on a business day at the applicable address and in the manner
provided herein.
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(e) This
Guaranty shall be deemed to have been made under and shall be governed in all
respects by the laws of the Property State.
(f) This
Guaranty may be executed in any number of counterparts with the same effect as
if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one instrument,
but in making proof hereof it shall only be necessary to produce one such
counterpart.
(g) This
Guaranty may only be modified, waived, altered or amended by a written
instrument or instruments executed by the party against which enforcement of
said action is asserted. Any alleged modification, waiver, alteration
or amendment which is not so documented shall not be effective as to any
party.
(h) The
books and records of Lender showing the accounts between Lender and Borrowers
shall be admissible in any action or proceeding arising from this Guaranty as
prima facie evidence for any claim whatsoever, absent manifest
error.
(i) Guarantor
waives and renounces any and all homestead or exemption rights Guarantor may
have under the United States Constitution, the laws of the Property State, or
the laws of any state as against Guarantor, and Guarantor transfers, conveys and
assigns to Lender a sufficient amount of such homestead or exemption as may be
allowed, including such homestead or exemption as may be set apart in
bankruptcy, to pay and perform the obligations of Guarantor arising under this
Guaranty. Guarantor hereby directs any trustee in bankruptcy having
possession of such homestead or exemption to deliver to Lender a sufficient
amount of property or money set apart as exempt to pay and perform such
Guarantor obligations.
(j) The
terms, provisions, covenants and conditions of this Guaranty shall be binding
upon Guarantor, its heirs, devisees, representatives, successors and assigns,
and shall inure to the benefit of Lender and Lender’s transferees, credit
participants, successors, assigns and/or endorsees.
(k) Within
this Guaranty, the words of any gender shall be held and construed to include
any other gender, and the words in the singular number shall be held and
construed to include the plural and the words in the plural number shall be held
and construed to include the singular, unless the context otherwise
requires.
(l) A
determination that any provision of this Guaranty is unenforceable or invalid
shall not affect the enforceability or validity of any other provision, and any
determination that the application of any provision of this Guaranty to any
person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to any other
persons or circumstances. Accordingly, the provisions of this
Guaranty are declared to be severable.
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THIS GUARANTY is executed as of the
date and year first above written.
|
GUARANTOR:
________________________________
By: ________________________________
Name: Xxxxx
Xxxxxxxxx
Title: Executive
Vice President and Chief Financial Officer
|
The
address of Guarantor is:
|
|
[_________________]
|
|
|
c/o Xxxx-Xxxx
Realty Corporation
|
|
|
000 Xxxxxxxx
Xxxxxx
|
|
|
Xxxxxx,
Xxx Xxxxxx 00000
|
|
|
Attn:
Xxxxxxxx X. Xxxxx, President and Chief Executive
Officer
|
With a copy to:
|
|
General
Counsel
|
|
|
Xxxx-Xxxx
Realty Corporation
|
|
|
000 Xxxxxxxx
Xx.
|
|
|
Xxxxxx,
Xxx Xxxxxx 00000
|
|
|
Attention: Xxxxx
X. Xxxxxx
|
The
address of Lender is:
|
|
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA AND VPCM,
LLC
|
|
|
c/o Prudential
Asset Resources, Inc.
|
|
|
0000 Xxxx
Xxxxxx, Xxxxx 0000
|
|
|
Xxxxxx,
Xxxxx 00000
|
|
|
Attention: Asset
Management Department; Reference Loan No. __________ and
________
|
With a copy to:
|
|
THE
PRUDENTIAL INSURANCE COMPANY OF
AMERICA
|
|
|
c/o Prudential
Asset Resources, Inc.
|
|
|
0000 Xxxx
Xxxxxx, Xxxxx 0000
|
|
|
Xxxxxx,
Xxxxx 00000
|
|
|
Attention: Legal
Department; Reference Loan No. _______
and ________
|
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