Contract
(Mezzanine
Loan)
THIS
GUARANTY AGREEMENT (this “Guaranty”) is
executed as of March 15, 2005, by XXXXXXX PROPERTIES, L.P., a Maryland limited
partnership having an address at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 (“Guarantor”), for
the benefit of NOMURA CREDIT & CAPITAL, INC., a Delaware corporation, having
an address at Two World Financial Center, New York, New York 10281 (together
with its successors and assigns, “Lender”).
RECITALS:
A. Pursuant
to that certain Promissory Note, dated of even date herewith, executed by
MP-Wateridge Plaza Mezzanine, LLC, a Delaware limited liability company
(“Borrower”), and
payable to the order of Lender in the original principal amount of Five Million
and No/100 Dollars ($5,000,000.00) (as the same may be amended, restated,
replaced, supplemented, or otherwise modified from time to time, the
“Note”),
Borrower has become indebted, and may from time to time be further indebted, to
Lender with respect to a loan (“Loan”) made
pursuant to that certain Loan Agreement, of even date herewith between Borrower
and Lender (as the same may be amended, restated, replaced, supplemented, or
otherwise modified from time to time, the “Loan
Agreement”).
B. The Loan
is secured by, inter
alia, that
certain Pledge and Security Agreement of even date herewith (as the same may be
amended, restated, replaced, supplemented, or otherwise modified from time to
time, the “Pledge
Agreement”), given
by Borrower to Lender granting Lender a first priority security interest in
Borrower’s 100% limited liability company interest in Xxxxxxx
Properties-Wateridge Plaza, LLC a Delaware limited liability company
(“Mortgage
Borrower”), as
more particularly described in the Pledge Agreement.
C. The Loan
is evidenced, secured or governed by other instruments and documents executed in
connection with the Loan (together with the Note, the Loan Agreement and the
Pledge Agreement, collectively, the “Loan
Documents”).
D. Lender is
not willing to make the Loan, or otherwise extend credit, to Borrower unless
Guarantor unconditionally guarantees payment and performance to Lender of the
Guaranteed Obligations (as herein defined).
E. Guarantor
is the owner of a direct or indirect interest in Borrower and as a result of
such interest, Guarantor will derive substantial economic and other benefits
from the making of the Loan to Borrower.
F. All
capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to such term in the Loan Agreement.
NOW,
THEREFORE, as an inducement to Lender to make the Loan to Borrower, and to
extend such additional credit as Lender may from time to time extend under the
Loan
Documents,
and for other good and valuable consideration, the receipt and legal sufficiency
of which are hereby acknowledged, the parties do hereby agree as
follows:
ARTICLE
1
NATURE
AND SCOPE OF GUARANTY
1.1 Guaranty
of Obligation.
Guarantor hereby irrevocably and unconditionally guarantees to Lender and its
successors and assigns the payment 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. Guarantor hereby irrevocably and
unconditionally covenants and agrees that it is liable for the Guaranteed
Obligations as a primary obligor.
1.2 Definition
of Guaranteed Obligations. As used
herein, the term “Guaranteed
Obligations” means
(a) the
obligations and liabilities of Borrower to Lender for any actual loss, damage,
cost, expense, liability, claim and any other obligation incurred by Lender
(including attorneys’ fees and costs reasonably incurred) resulting from the
following:
(i) fraud or
intentional misrepresentation by Borrower, Mortgage Borrower or Guarantor in
connection with the Loan, including by reason of any claim under the Racketeer
Influenced and Corrupt Organizations Act (“RICO”);
(ii) the gross
negligence or willful misconduct of Borrower, Mortgage Borrower or Guarantor
with respect to the Loan, the Collateral or the Property;
(iii) the
breach of any representation, warranty, covenant or indemnification provision in
the Environmental Indemnity given by Borrower or Guarantor to Lender concerning
environmental laws, hazardous substances or asbestos and any indemnification of
Lender with respect thereto in such agreement;
(iv) the
wrongful removal or destruction of any portion of the Property or the Collateral
by Borrower or any Affiliate after the occurrence of an Event of Default
thereof, or any intentional physical waste of the Property by Borrower or any
Affiliate thereof, provided, however, such physical waste shall exclude wear and
tear to the Property that occurs in the ordinary course of business of the
Property;
(v) any Legal
Requirement (including RICO) mandating the forfeiture by Borrower of the
Property, or any portion thereof, because of the conduct or purported conduct of
criminal activity by Borrower, Mortgage Borrower or any Restricted Party in
connection therewith;
(vi) any
misrepresentation, miscertification or breach of warranty by Borrower with
respect to any representation, warranty or certification contained in the Loan
Agreement or any other Loan Document or in any document executed in connection
therewith, pursuant to any of the Loan Documents or otherwise to induce Lender
to make the Loan, or any advance thereof,
2
or to
release monies from any account held by Lender (including any reserve or escrow)
or to take other action with respect to the Collateral;
(vii) the
misappropriation or conversion by Borrower, Mortgage Borrower or any Affiliate
thereof of:
(A) any
Insurance Proceeds paid by reason of any Casualty or any Net Liquidation
Proceeds;
(B) any
Awards received in connection with a Condemnation;
(C) any Rents
following an Event of Default or any Rents paid more than one (1) month in
advance; or
(D) any
distributions or other payments made in connection with any part of the
Collateral
provided
such amounts are not applied to the payment of the Loan or the Operating
Expenses of the Property;
(viii) failure
to pay charges for labor or materials or other charges that can create Liens on
any portion of the Property that are superior to the Lien of the Security
Instrument unless such charges are being contested in accordance with the
provisions of the Loan Documents;
(ix) any
security deposits, advance deposits or any other deposits collected by Borrower
or Mortgage Borrower or any Affiliate thereof with respect to the Property which
are not delivered to Lender or Mortgage Lender upon a foreclosure of the
Collateral or the Property, as the case may be, or action in lieu thereof,
except to the extent any such security deposits were applied in accordance with
the terms and conditions of any of the Leases prior to the occurrence of the
Event of Default that gave rise to such foreclosure or action in lieu
thereof;
(x) if
Borrower or Mortgage Borrower fails to permit on-site inspections of the
Property, fails to provide financial information specifically required by the
Loan Agreement or fails to appoint a new property manager upon the request of
Lender, each as required by, and in accordance with, the terms and provisions of
the Loan Agreement;
(xi) any
breach of any representation, warrant or covenant contained in Section 3 of
the Pledge Agreement; or
(xii) if there
shall exist an event of default under the Vacant Space Master Lease beyond any
applicable notice and/or cure period contained therein, if the Vacant Space
Master Lease shall have been amended or modified (except as specifically
provided in Section 3.1.19 of the Loan Agreement) without Lender’s prior written
consent, if the Vacant Space Master Lease shall have been terminated, cancelled
or surrendered without Lender’s prior written consent, or if the Operating
Partnership is the subject of a Bankruptcy Action, other than an involuntary
Bankruptcy Action which is dismissed within ninety (90) days; and
3
(b) the
entire amount of the Debt:
(i) in the
event of:
(A) Borrower
or Mortgage Borrower filing a voluntary petition under the Bankruptcy Code or
any other federal or state bankruptcy or insolvency law;
(B) Borrower
or Mortgage Borrower filing an answer consenting to, or otherwise acquiescing or
joining in any involuntary petition filed by any other Person against it, under
the Bankruptcy Code or any other federal or state bankruptcy or insolvency law,
or soliciting or causing to be solicited petitioning creditors for any
involuntary petition from any Person;
(C) Borrower
or Mortgage Borrower consenting to, or otherwise acquiescing in or joining in an
application for the appointment of a custodian, receiver, trustee, or examiner
for Borrower or Mortgage Borrower or any portion of the Property or the
Collateral; or
(D) Borrower
or Mortgage Borrower making an assignment for the benefit of creditors, or
admitting, in writing or in any legal proceeding, its insolvency or inability to
pay its debts as they become due;
(ii) if the
first Monthly Interest Payment amount is not paid when due;
(iii) if
Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose
Entity as required by, and in accordance with, the terms and provisions of the
Loan Agreement and there is a substantive consolidation of Borrower or Mortgage
Borrower with any other Person;
(iv) if
Borrower fails to obtain Lender’s prior written consent to any Indebtedness or
voluntary Lien encumbering the Property or the Collateral as required by the
Loan Agreement or the Pledge Agreement; or
(v) if
Borrower fails to obtain Lender’s prior written consent to any Transfer as
required by the Loan Agreement or the Pledge Agreement.
1.3 Nature
of Guaranty. This
Guaranty is an irrevocable, absolute, continuing guaranty of payment and
performance and not a guaranty of collection. This Guaranty may not be revoked
by Guarantor and shall continue to be effective with respect to any Guaranteed
Obligations arising or created after any attempted revocation by Guarantor and
after (if Guarantor is a natural person) Guarantor’s death (in which event this
Guaranty shall be binding upon Guarantor’s estate and Guarantor’s legal
representatives and heirs). The fact that at any time or from time to time the
Guaranteed Obligations may be increased or reduced shall not release or
discharge the obligation of Guarantor to Lender with respect to the Guaranteed
Obligations. This Guaranty may be enforced by Lender and any subsequent holder
of the Note and shall not be discharged by the assignment or negotiation of all
or part of the Note.
4
1.4 Guaranteed
Obligations Not Reduced by Offset. The
Guaranteed Obligations and the liabilities and obligations of Guarantor to
Lender hereunder, shall not be reduced, discharged or released because or by
reason of any existing or future offset, claim or defense (other than a defense
based upon the actual payment or performance of the Guaranteed Obligations
sought to be enforced) of Borrower, 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.
1.5 Payment
By Guarantor. If all
or any part of the Guaranteed Obligations shall not be punctually paid when due,
whether at demand, maturity, acceleration or otherwise, Guarantor shall, within
five (5) Business days after written 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, pay in lawful money of the United States of America, the
amount due on the Guaranteed Obligations to Lender at Lender’s address as set
forth herein. Such demand(s) may be made at any time coincident with or after
the time for payment of all or part of the Guaranteed Obligations, and may be
made from time to time with respect to the same or different items of Guaranteed
Obligations. Such demand shall be deemed made, given and received in accordance
with the notice provisions hereof.
1.6 No
Duty To Pursue Others. It
shall not be necessary for Lender (and Guarantor hereby waives any rights which
Guarantor may have to require Lender), in order to enforce the obligations of
Guarantor hereunder, first to (a) institute suit or exhaust its remedies against
Borrower or others liable on the Loan or the Guaranteed Obligations or any other
person, (b) enforce Lender’s rights against any collateral which shall ever have
been given to secure the Loan, (c) enforce Lender’s rights against any other
guarantors of the Guaranteed Obligations, (d) join Borrower or any others liable
on the Guaranteed Obligations in any action seeking to enforce this Guaranty,
(e) exhaust any remedies available to Lender against any collateral which shall
ever have been given to secure the Loan, or (f) resort to any other means of
obtaining payment of the Guaranteed Obligations. Lender shall not be required to
mitigate damages or take any other action to reduce, collect or enforce the
Guaranteed Obligations.
1.7 Waivers.
Guarantor agrees to the provisions of the Loan Documents, and hereby waives
notice of: (a) any loans or advances made by Lender to Borrower; (b) acceptance
of this Guaranty; (c) any amendment or extension of the Note, the Loan Agreement
or of any other Loan Documents; (d) the execution and delivery by Borrower and
Lender of any other loan or credit agreement or of Borrower’s execution and
delivery of any promissory notes or other documents arising under the Loan
Documents or in connection with the Collateral; (e) the occurrence of any breach
by Borrower under any of the Loan Documents or an Event of Default; (f) Lender’s
transfer or disposition of the Guaranteed Obligations, or any part thereof; (g)
sale or foreclosure (or posting or advertising for sale or foreclosure) of any
collateral for the Guaranteed Obligations; (h) protest, proof of non-payment or
default by Borrower; and (i) any other action at any time taken or omitted by
Lender, and, generally, all demands and notices of every kind in connection with
this Guaranty, the Loan Documents, any documents or agreements evidencing,
securing or relating to any of the Guaranteed Obligations and/or the obligations
hereby guaranteed.
5
1.8 Payment
of Expenses. In the
event that Guarantor should breach or fail to timely perform any provisions of
this Guaranty, Guarantor shall, within five (5) Business Days after written
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. The covenant contained in this
Section
1.8 shall
survive the payment and performance of the Guaranteed Obligations.
1.9 Effect
of Bankruptcy. In the
event that, pursuant to any insolvency, bankruptcy, reorganization, receivership
or other debtor relief law, or any judgment, order or decision thereunder,
Lender must rescind or restore any payment, or any part thereof, received by
Lender in satisfaction of the Guaranteed Obligations, as set forth herein, any
prior release or discharge from the terms of this Guaranty given to Guarantor by
Lender shall be without effect, and this Guaranty shall remain in full force and
effect. It is the intention of Borrower and Guarantor that Guarantor’s
obligations hereunder shall not be discharged except by Guarantor’s performance
of such obligations and then only to the extent of such
performance.
1.10 Waiver
of Subrogation, Reimbursement and Contribution.
Notwithstanding anything to the contrary contained in this Guaranty, Guarantor
hereby unconditionally and 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 the Guarantor to the rights
of Lender), to assert any claim against or seek contribution, indemnification or
any other form of reimbursement from Borrower or any other party liable for
payment of any or all of the Guaranteed Obligations for any payment made by
Guarantor under or in connection with this Guaranty or otherwise until ninety
one (91) days after Lender has received payment in full of the
Obligations.
1.11 Borrower. The
term “Borrower” as used herein shall include any new or successor corporation,
association, partnership (general or limited), limited liability company, joint
venture, trust or other individual or organization formed as a result of any
merger, reorganization, sale, transfer, devise, gift or bequest of Borrower or
any interest in Borrower.
ARTICLE
2
EVENTS
AND CIRCUMSTANCES NOT REDUCING OR DISCHARGING GUARANTOR’S
OBLIGATIONS
Guarantor
hereby consents and agrees to each of the following, and agrees that Guarantor’s
obligations under this Guaranty shall not be released, diminished, impaired,
reduced or adversely affected by any of the following, and waives any common
law, equitable, statutory or other rights (including without limitation rights
to notice) which Guarantor might otherwise have as a result of or in connection
with any of the following:
2.1 Modifications. Any
renewal, extension, increase, modification, alteration or rearrangement of all
or any part of the Guaranteed Obligations, the Note, the Pledge Agreement, the
Loan Agreement, the other Loan Documents, or any other document, instrument,
contract or understanding between Borrower and Lender, or any other parties,
pertaining to the Guaranteed Obligations or any failure of Lender to notify
Guarantor of any such action.
6
2.2 Adjustment. Any
adjustment, indulgence, forbearance or compromise that might be granted or given
by Lender to Borrower or any Guarantor.
2.3 Condition
of Borrower or Guarantor. The
insolvency, bankruptcy, arrangement, adjustment, composition, liquidation,
disability, dissolution or lack of power of Borrower, Guarantor or any other
party at any time liable for the payment of all or part of the Guaranteed
Obligations; or any dissolution of Borrower or Guarantor, or any sale, lease or
transfer of any or all of the assets of Borrower or Guarantor, or any changes in
the shareholders, partners or members of Borrower or Guarantor; or any
reorganization of Borrower or Guarantor.
2.4 Invalidity
of Guaranteed Obligations. The
invalidity, illegality or unenforceability of all or any part of the Guaranteed
Obligations, or any document or agreement executed in connection with the
Guaranteed Obligations, for any reason whatsoever, including without limitation
the fact that (a) the Guaranteed Obligations, or any part thereof, exceed the
amount permitted by law, (b) the act of creating the Guaranteed Obligations or
any part thereof is ultra xxxxx, (c) the officers or representatives executing
the Note, the Pledge Agreement, the Loan Agreement or the other Loan Documents
or otherwise creating the Guaranteed Obligations acted in excess of their
authority, (d) the Guaranteed Obligations violate applicable usury laws, (e) the
Borrower has valid defenses, claims or offsets (whether at law, in equity or by
agreement) (other than a defense based upon the actual payment or performance of
the Guaranteed Obligations sought to be enforced), which render the Guaranteed
Obligations wholly or partially uncollectible from Borrower, (f) 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 (g) the Note, the Pledge Agreement,
the Loan Agreement or any of the other Loan Documents have been forged or
otherwise are irregular or not genuine or authentic, it being agreed that
Guarantor shall remain liable hereon regardless of whether Borrower or any other
Person be found not liable on the Guaranteed Obligations or any part thereof for
any reason.
2.5 Release
of Obligors. Any
full or partial release of the liability of Borrower on the Guaranteed
Obligations, or any part thereof, or of any co-guarantors, or any other Person
now or hereafter liable, whether directly or indirectly, jointly, severally, or
jointly and severally, to pay, perform, guarantee or assure the payment of the
Guaranteed Obligations, or any part thereof, it being recognized, acknowledged
and agreed by Guarantor that Guarantor may be required to pay the Guaranteed
Obligations in full without assistance or support of any other party, and
Guarantor has not been induced to enter into this Guaranty on the basis of a
contemplation, belief, understanding or agreement that other Persons will be
liable to pay or perform the Guaranteed Obligations, or that Lender will look to
other Persons to pay or perform the Guaranteed Obligations.
2.6 Other
Collateral. The
taking or accepting of any other security, collateral or guaranty, or other
assurance of payment, for all or any part of the Guaranteed
Obligations.
2.7 Release
of Collateral. Any
release, surrender, exchange, subordination, deterioration, waste, loss or
impairment (including without limitation negligent, willful,
7
unreasonable
or unjustifiable impairment) of any collateral, property or security at any time
existing in connection with, or assuring or securing payment of, all or any part
of the Guaranteed Obligations.
2.8 Care
and Diligence. The
failure of Lender or any other party to exercise diligence or reasonable care in
the preservation, protection, enforcement, sale or other handling or treatment
of all or any part of such collateral, property or security, including but not
limited to any neglect, delay, omission, failure or refusal of Lender (a) to
take or prosecute any action for the collection of any of the Guaranteed
Obligations or (b) to foreclose, or initiate any action to foreclose, or, once
commenced, prosecute to completion any action to foreclose upon any security
therefor, or (c) to take or prosecute any action in connection with any
instrument or agreement evidencing or securing all or any part of the Guaranteed
Obligations, other than any loss, damage liability or cost arising from Lender’s
gross negligence or willful misconduct following Lender’s taking title to the
Collateral.
2.9 Unenforceability. The
fact that any collateral, security, security interest or lien contemplated or
intended to be given, created or granted as security for the repayment of the
Guaranteed Obligations, or any part thereof, shall not be properly perfected or
created, or shall prove to be unenforceable or subordinate to any other security
interest or lien, it being recognized and agreed by Guarantor that Guarantor is
not entering into this Guaranty in reliance on, or in contemplation of the
benefits of, the validity, enforceability, collectibility or value of any of the
collateral for the Guaranteed Obligations.
2.10 Offset. The
Note, the Guaranteed Obligations and the liabilities and obligations of
Guarantor to Lender hereunder shall not be reduced, discharged or released by
reason of any existing or future right of offset, claim or defense (other than a
defense based upon the actual payment or performance of the Guaranteed
Obligations sought to be enforced) of Borrower against Lender, or any other
Person, 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.
2.11 Merger. The
reorganization, merger or consolidation of Borrower into or with any
Person.
2.12 Preference. Any
payment by Borrower to Lender is held to constitute a preference under
bankruptcy laws, or for any reason Lender is required to refund such payment or
pay such amount to Borrower or someone else.
2.13 Other
Actions Taken or Omitted. Any
other action taken or omitted to be taken with respect to the Loan Documents,
the Guaranteed Obligations, or the security and collateral therefor, other than
any loss, damage liability or cost arising from Lender’s gross negligence or
willful misconduct following Lender’s taking title to the Collateral, whether or
not such action or omission prejudices Guarantor or increases the likelihood
that Guarantor will be required to pay the Guaranteed Obligations pursuant to
the terms hereof, it is the unambiguous and unequivocal intention of Guarantor
that Guarantor shall be obligated to pay the Guaranteed Obligations when due,
notwithstanding any occurrence, circumstance, event, action, or omission
whatsoever, whether contemplated or uncontemplated, and whether or not otherwise
or particularly described
8
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 Loan Documents and extend credit to Borrower, Guarantor
represents and warrants to Lender as follows:
3.1 Benefit.
Guarantor is an Affiliate of Borrower, is the owner of a direct or indirect
interest in Borrower, and has received, or will receive, direct or indirect
benefit from the making of this Guaranty with respect to the Guaranteed
Obligations.
3.2 Familiarity
and Reliance.
Guarantor is familiar with, and has independently reviewed books and records
regarding, the financial condition of the Borrower and is familiar with the
value of any and all collateral intended to be created as security for the
payment of the Note or Guaranteed Obligations; however, Guarantor is not relying
on such financial condition or the collateral as an inducement to enter into
this Guaranty.
3.3 No
Representation By Lender. Neither
Lender nor any other party has made any representation, warranty or statement to
Guarantor in order to induce the Guarantor to execute this
Guaranty.
3.4 Guarantor’s
Financial Condition. As of
the date hereof , and after giving effect to this Guaranty and the contingent
obligation evidenced hereby, Guarantor is, and will be, solvent, and has and
will have assets which, fairly valued, exceed its obligations, liabilities
(including contingent liabilities) and debts, and has and will have property and
assets sufficient to satisfy and repay its obligations and
liabilities.
3.5 Legality. The
execution, delivery and performance by Guarantor of this Guaranty and the
consummation of the transactions contemplated hereunder do not, and will not,
contravene or conflict with any law, statute or regulation whatsoever to which
Guarantor is subject or constitute a default (or an event which with notice or
lapse of time or both would constitute a default) under, or result in the breach
of, any indenture, mortgage, deed of trust, charge, lien, or any contract,
agreement or other instrument to which Guarantor is a party or which may be
applicable to Guarantor. This Guaranty is a legal and binding obligation of
Guarantor and is enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors’ rights.
3.6 Financial
Statements. Any and
all balance sheets, net worth statements and other financial data that have been
given or may be given to Lender with respect to the Guarantor did or will, at
the time of such delivery, fairly and accurately present the financial condition
of the Guarantor.
3.7 Survival. All
representations and warranties made by Guarantor herein shall survive the
execution hereof.
9
ARTICLE
4
SUBORDINATION
OF CERTAIN INDEBTEDNESS
4.1 Subordination
of All Guarantor Claims. As used
herein, the term “Guarantor
Claims” shall
mean all debts and liabilities of Borrower to Guarantor, whether such debts and
liabilities now exist or are hereafter incurred or arise, or whether the
obligations of Borrower thereon be direct, contingent, primary, secondary,
several, joint and several, or otherwise, and irrespective of whether such debts
or liabilities be evidenced by note, contract, open account, or otherwise, and
irrespective of the Person or Persons in whose favor such debts or liabilities
may, at their inception, have been, or may hereafter be created, or the manner
in which they have been or may hereafter be acquired by Guarantor. The Guarantor
Claims shall include without limitation all rights and claims of Guarantor
against Borrower (arising as a result of subrogation or otherwise) as a result
of Guarantor’s payment of all or a portion of the Guaranteed Obligations. Upon
the occurrence of a Default or an Event of Default, Guarantor shall not receive
or collect, directly or indirectly, from Borrower or any other party any amount
upon the Guarantor Claims.
4.2 Claims
in Bankruptcy. In the
event of receivership, bankruptcy, reorganization, arrangement, debtor’s relief,
or other insolvency proceedings involving Guarantor as debtor, Lender shall have
the right to prove its claim in any such proceeding so as to establish its
rights hereunder and receive directly from the receiver, trustee or other court
custodian dividends and payments which would otherwise be payable upon Guarantor
Claims. Guarantor hereby assigns such dividends and payments to Lender. Should
Lender receive, for application against the Guaranteed Obligations, any such
dividend or payment which is otherwise payable to Guarantor, and which, as
between Borrower and Guarantor, shall constitute a credit against the Guarantor
Claims, then upon payment to Lender in full of the Guaranteed Obligations,
Guarantor shall become subrogated to the rights of Lender to the extent that
such payments to Lender on the Guarantor Claims have contributed toward the
liquidation of the Guaranteed Obligations, and such subrogation shall be with
respect to that proportion of the Guaranteed Obligations which would have been
unpaid if Lender had not received dividends or payments upon the Guarantor
Claims.
4.3 Payments
Held in Trust.
Notwithstanding anything to the contrary in this Guaranty, in the event that
Guarantor shall receive any funds, payments, claims or distributions which are
prohibited by this Guaranty, Guarantor agrees to hold in trust for Lender an
amount equal to the amount of all funds, payments, claims or distributions so
received, and agrees that it shall have absolutely no dominion over the amount
of such funds, payments, claims or distributions so received except to pay such
funds, payments, claims and/or distributions promptly to Lender, and Guarantor
covenants promptly to pay the same to Lender.
4.4 Liens
Subordinate.
Guarantor agrees that any liens, security interests, judgment liens, charges or
other encumbrances upon Borrower’s assets securing payment of the Guarantor
Claims shall be and remain inferior and subordinate to any liens, security
interests, judgment liens, charges or other encumbrances upon Borrower’s assets
securing payment of the Guaranteed Obligations, regardless of whether such
encumbrances in favor of Guarantor or Lender presently exist or are hereafter
created or attach. Until ninety one (91) days after the
10
Obligations
shall have been paid in full and the Guaranteed Obligations fully satisfied,
without the prior written consent of Lender, Guarantor shall not (a) exercise or
enforce any creditor’s right it may have against Borrower, or (b) foreclose,
repossess, sequester or otherwise take steps or institute any action or
proceedings (judicial or otherwise, including without limitation the
commencement of, or joinder in, any liquidation, bankruptcy, rearrangement,
debtor’s relief or insolvency proceeding) to enforce any liens, mortgages, deeds
of trust, security interests, collateral rights, judgments or other encumbrances
on assets of Borrower held by Guarantor.
ARTICLE
5
COVENANTS
5.1 Definitions. As used
in this Article
5, the
following terms shall have the respective meanings set forth below:
(a) “GAAP” shall
mean generally accepted accounting principles, consistently
applied.
(b) “Net
Worth” shall
mean, as of a given date, (i) the Guarantor’s total assets as of such date, less
(ii) the Guarantor’s total liabilities as of such date, determined in accordance
with GAAP.
5.2 Covenants. Until
all of the Obligations and the Guaranteed Obligations have been paid in full,
Guarantor (a) shall maintain a Net Worth in excess of $150,000,000.00, and (b)
shall deliver to Lender, within one hundred twenty (120) days following the end
of each calendar year, a complete copy of Guarantor’s personal financial
statements prepared by a “Big Four” accounting firm or other independent
certified public accountant acceptable to Lender, in a manner consistent with
Guarantor’s personal financial statement delivered to Lender prior to the date
hereof, including statements of income and expense and a balance sheet for
Guarantor, together with a certificate of Guarantor (i) setting forth in
reasonable detail Guarantor’s Net Worth as of the end of such prior calendar
year and based on such personal financial statements, and (ii) certifying
that such annual financial statements are true, correct, accurate and complete
and fairly present the financial condition and results of the operations of
Guarantor.
5.3 Prohibited
Transactions. No
Guarantor shall, at any time while a default in the payment of the Guaranteed
Obligations has occurred and is continuing, enter into or effectuate any
transaction with any Affiliate which would reduce the Net Worth of Guarantor
below the minimum Net Worth set forth in Section 5.2.
ARTICLE
6
CALIFORNIA
SPECIFIC PROVISIONS
In the
event of any inconsistencies between the terms and conditions of this
Article
6 and the
other terms and conditions of this Guaranty, the terms and conditions of this
Article
6 shall
control and be binding.
11
6.1 General.
Guarantor agrees that no action for the enforcement or recovery of damages under
this Guaranty shall constitute an action within the meaning of California Code
of Civil Procedure (“CCP”) §726,
which Section shall not apply to this Guaranty. No judgment against the
Guarantor in any action pursuant to this Guaranty shall constitute a money
judgment or a deficiency judgment within the meaning of CCP §§ 580a, 580b,
580d or 726. This Section and the obligations of Guarantor hereunder shall
survive, and remain in full force and effect after, the repayment or
satisfaction of the Obligations, any release of the security interest with
respect to the Collateral or any foreclosure or other enforcement of the Loan
Documents (whether by judicial action, exercise of the power of sale, deed in
lieu of foreclosure, or otherwise), and Lender shall have the right to enforce
this Guaranty after any such repayment, satisfaction, release or foreclosure.
The remedies in this Guaranty are cumulative and in addition to all remedies
provided by law.
6.2 General
Waivers by Guarantors.
Guarantor hereby (i) waives and relinquishes all rights and remedies
accorded by applicable law to indemnitors and guarantors, and (ii) waives
notice of acceptance of this Guaranty and notice of any liability to which it
may apply, and waives diligence, presentment, demand of payment, protest, notice
of dishonor or nonpayment or notice of any kind in connection with this
Guaranty. Guarantor further waives, to the maximum extent permitted by law,
(a) any rights or defenses created by any anti-deficiency statutes
applicable to the Loan; (b) any right to require Lender to marshal assets or
proceed against or exhaust its recourse against Borrower or any other obligated
party or any security for the Guaranteed Obligations or to pursue any other
remedy before being entitled to payment from Guarantor or before proceeding
against Guarantor for payment and performance of the Guaranteed Obligations;
(c) the defense of the statute of limitation in any action hereunder or for
the collection or the performance of the Guaranteed Obligations; (d) any
defense that may arise by reason of the failure of Lender to file or enforce a
claim against the estate (either in administration, bankruptcy or any other
proceeding) of Guarantor or any other Person; (e) any defense that may arise by
reason of the unenforceability in whole or in part of the Loan Documents;
(f) the right to assert a counterclaim, other than a mandatory or
compulsory counterclaim (and other than a defense based upon the actual payment
or performance of the Guaranteed Obligations sought to be enforced) , in any
action or proceeding brought against or by Lender; and (g) all homestead
exemption rights against the obligations hereunder; it being the intention
hereof that Guarantor shall remain liable as principal, to the extent set forth
herein, notwithstanding any act, omission or thing which might otherwise operate
as a legal or equitable discharge of Guarantor.
6.3 Waiver
of Defenses by Guarantors.
Guarantor hereby waives and agrees not to assert or take advantage of any
defense based upon:
(a) the
incapacity, lack of authority, death or disability of Borrower, Guarantor or any
other Person;
(b) the
failure of Lender to commence an action against Borrower or any other guarantor
(which term shall mean any other party at any time directly or contingently
liable for any of Borrower’s obligations under the Loan Documents) or to proceed
against or exhaust any security held by Lender at any time, or to pursue any
other remedy whatsoever at any time;
12
(c) any duty
on the part of Lender to disclose to Guarantor any facts Lender may now or
hereafter know regarding Borrower, including Borrower’s financial condition, and
all other circumstances affecting Borrower’s ability to perform its obligations
to Lender, regardless of whether Lender has reason to believe (i) that any such
facts materially increase the risk beyond that which Guarantor intends to
assume, or (ii) that such facts are unknown to Guarantor, Guarantor
acknowledging that it is fully responsible for being and keeping informed of the
condition (financial or otherwise) and affairs of Borrower;
(d) lack of
notice of default, demand of performance or notice of acceleration to Borrower,
Guarantor or any other Person hereunder or under any other Loan
Document;
(e) the
consideration for this Guaranty;
(f) the
revocation or repudiation hereof by Guarantor or the revocation or repudiation
of any of the Loan Documents by Borrower or any other Person;
(g) the
invalidity or unenforceability in whole or in part of the Loan Documents or of
any manner in which Lender has exercised its rights and remedies under any of
the Loan Documents, or by any cessation from any cause whatsoever of the
liability of Borrower, Guarantor or any other guarantor;
(h) any acts
or omissions of Lender which vary, increase or decrease the risk on
Guarantor;
(i) any
rights or defenses based upon an offset by Guarantor against any obligation now
or hereafter owed to such Guarantor by Borrower;
(j) any
statute of limitations affecting the liability of Guarantor hereunder, the
liability of Borrower or any other guarantor under the Loan Documents, or the
enforcement hereof, to the extent permitted by law;
(k) the
application by Borrower of the proceeds of the Loan for purposes other than the
purposes represented by Borrower to Lender and/or Guarantor or intended or
understood by Lender or Guarantor;
(l) an
election of remedies by Lender, including any election to proceed against any
collateral by judicial or non-judicial foreclosure, whether real property or
personal property, or by deed in lieu thereof, and whether or not every aspect
of any foreclosure sale is commercially reasonable, or any election of remedies,
including, but not limited to, remedies relating to real property or personal
property security, which destroys or otherwise impairs the subrogation rights of
Guarantor or the rights of Guarantor to proceed against Borrower or any other
guarantor by way of subrogation or for reimbursement or contribution, or all
such rights (including, without limitation, CCP Sections 580a, 580b, 580d and
726);
(m) any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in any other aspects more burdensome than that of
the principal obligor;
13
(n) Lender’s
election, in any proceeding instituted under the Bankruptcy Code, of the
application of Section 1111(b)(2) of the Bankruptcy Code or any successor
statute;
(o) any
borrowing or any grant of a security interest under Section 364 of the
Bankruptcy Code or any action taken or omitted by Lender in any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation or
other like proceeding (each, an “Insolvency
Proceeding”)
involving Borrower, Guarantor or any other guarantor, including any election to
have Lender's claim allowed as being secured, partially secured or unsecured,
any extension of credit by Lender to Borrower, Guarantor or any other guarantor
in any Insolvency Proceeding and the taking and holding by Lender of any
security for any such extension of credit;
(p) so long
as any amount payable under the Loan is outstanding, any rights of subrogation,
reimbursement, exoneration, contribution and indemnity and any other rights and
defenses that are or may become available to Guarantor by reason of California
Civil Code (“Civil
Code”)
Sections 2787 to 2855, inclusive, and any rights or claims of any kind or nature
against Borrower which arise out of or are caused by this Guaranty, and any
rights to enforce any remedy which Lender now has or may hereafter have against
Borrower, and any benefit of, and any right to participate in, any security now
or hereafter held by Lender;
(q) any right
Guarantor might have to revoke this Guaranty as to any advances made by Lender
to or on behalf of Borrower or pursuant to the terms of any of the Loan
Documents; and
(r) any other
suretyship defense that might, but for the terms hereof, be available to
Guarantor.
Without
limiting the generality of the foregoing, Guarantor also hereby waives (A) any
defense based upon Lender's election to waive its lien as to all or any security
for the Loan pursuant to CCP Section 726.5 or otherwise, and (B) any and all
benefits which might otherwise be available to Guarantor under Civil Code
Sections 2787 to 2855, inclusive, 2899 and 3433 and any successor
statutes.
6.4 Foreclosure.
Guarantor acknowledges and agrees that all waivers of defenses arising from any
impairment of Guarantor’s rights of subrogation, reimbursement, contribution and
indemnification and waivers of any other rights, privileges, defenses or
protections available to Guarantor by reason of Sections 2787 to 2855,
inclusive, of the Civil Code are intended by Guarantor to be effective to the
maximum extent permitted by Section 2856 of the Civil Code and other
applicable law. Guarantor understands and acknowledges that if Lender forecloses
judicially or non-judicially against any real property security for the Note,
that foreclosure could impair or destroy any ability that Guarantor may have to
seek reimbursement, contribution or indemnification from Borrower or others
based on any right Guarantor may have of subrogation, reimbursement,
contribution or indemnification for any amounts paid by Guarantor under this
Guaranty and that Guarantor may therefore incur partially or totally
non-reimbursable liability hereunder. Guarantor further understands and
acknowledges that in the absence of this provision, the potential impairment or
destruction of Guarantor’s rights, if any, might entitle Guarantor to assert a
defense to this Guaranty based on CCP Section 580d, as interpreted in
14
Union
Bank vs. Gradsky. By way
of explanation, and without limiting the generality of any other provision of
this Guaranty, Guarantor understands that if Lender conducts a non-judicial
foreclosure sale with respect to any real property security for the Note,
Guarantor would have a defense to a deficiency judgment under this Guaranty
because the non-judicial foreclosure would eliminate Guarantor’s right of
subrogation. This defense arises, in part, because CCP Section 580d provides
that a non-judicial foreclosure sale under a deed of trust eliminates the right
of the secured party to seek a deficiency judgment on an obligation secured by
that deed of trust. By executing this Guaranty, Guarantor freely, irrevocably
and unconditionally:
(a) waives
and relinquishes that defense, and agrees that Guarantor will be fully liable
under this Guaranty for any deficiency remaining, even though Lender may
foreclose judicially or non-judicially against any real property security for
the Note and even though such foreclosure destroys Guarantor’s right of
subrogation, it being the purpose and intent of Guarantor that the obligations
hereunder shall be absolute, continuing, independent and unconditional under any
and all circumstances;
(b) agrees
that Guarantor will not assert that defense in any action or proceeding that
Lender may commence to enforce this Guaranty;
(c) notwithstanding
any other provision of this Guaranty to the contrary, waives, until ninety one
(91) days after Lender has received payment in full of the Obligations, any
claim or other rights which Guarantor may now have or hereafter acquire against
Borrower or any other guarantor of all or any of the obligations of Guarantor
hereunder that arise from the existence or performance of Guarantor’s
obligations under this Guaranty or any other Loan Document, including, without
limitation, so long as any amount payable under the Loan is outstanding, any
right of subrogation, reimbursement, exoneration, contribution or
indemnification, any right to participate in any claim or remedy of Lender
against Borrower or any other guarantor or any collateral which Lender now has
or hereafter acquires, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, by any payment made hereunder
or otherwise, including, without limitation, the right to take or receive from
Borrower or any other guarantor, directly or indirectly, in cash or other
property or by setoff or in any other manner, payment or security on account of
such claim or other rights;
(d) acknowledges
and agrees that the rights and defenses waived by Guarantor under this Guaranty
include any right or defense that Guarantor may have or be entitled to assert
based upon or arising out of any one or more of the following: (i) CCP Sections
580a (which if Guarantor had not given this waiver, would otherwise limit
Guarantor’s liability after any non-judicial foreclosure sale to the difference
between the obligations for which Guarantor is liable and the fair market value
of the property or interests sold at such non-judicial foreclosure sale rather
than the actual proceeds of such sale), 580b and 580d (which, if Guarantor had
not given this waiver, would otherwise limit Lender's right to recover a
deficiency judgment with respect to purchase money obligations and after any
non-judicial foreclosure sale, respectively), and/or 726 (which, if Guarantor
had not given this waiver, among other things, would otherwise require Lender to
exhaust all of its security before a personal judgment could be obtained for a
deficiency); and/or (ii) Civil Code Section 2848;
15
(e) acknowledges
and agrees that Lender is relying on this waiver in making the Loan, and that
this waiver is a material part of the consideration that Lender is receiving for
making the Loan;
(f) to the
extent that Guarantor’s waivers of the rights of subrogation, reimbursement or
contribution as set forth herein are found by a court of competent jurisdiction
to be void or voidable for any reason, agrees that Guarantor’s rights of
subrogation and reimbursement against Borrower, and Guarantor’s right of
contribution against any other guarantor, shall be junior and subordinate to
Lender’s rights against Borrower or such other guarantor; and
(g) WITHOUT
LIMITING THE FOREGOING, PURSUANT TO CIVIL CODE SECTION 2856(c), WAIVES ALL
RIGHTS AND DEFENSES THAT SUCH GUARANTOR HAS BECAUSE BORROWER’S DEBT IS SECURED
BY REAL PROPERTY. THIS MEANS, AMONG OTHER THINGS:
(A) LENDER
MAY COLLECT FROM ANY GUARANTOR WITHOUT FIRST FORECLOSING ON ANY REAL OR PERSONAL
PROPERTY COLLATERAL PLEDGED BY BORROWER; AND
(B) IF
LENDER FORECLOSES ON ANY REAL PROPERTY COLLATERAL PLEDGED BY BORROWER:
(A) THE AMOUNT OF THE OBLIGATIONS MAY BE REDUCED ONLY BY THE PRICE FOR
WHICH THAT COLLATERAL IS SOLD AT THE FORECLOSURE SALE, EVEN IF THE COLLATERAL IS
WORTH MORE THAN THE SALE PRICE; AND (B) LENDER MAY COLLECT FROM ANY
GUARANTOR, EVEN IF LENDER, BY FORECLOSING ON THE REAL PROPERTY COLLATERAL, HAS
DESTROYED ANY RIGHT ANY GUARANTOR MAY HAVE TO COLLECT FROM
BORROWER.
6.5 THIS
IS AN UNCONDITIONAL AND IRREVOCABLE WAIVER OF ANY RIGHTS AND DEFENSES GUARANTORS
MAY HAVE BECAUSE BORROWER’S DEBT IS SECURED BY AN INTEREST IN REAL PROPERTY.
THESE RIGHTS AND DEFENSES INCLUDE, BUT ARE NOT LIMITED TO, ANY RIGHTS OR
DEFENSES BASED UPON CCP SECTIONS 580a, 580b, 580d OR 726.
ARTICLE
7
MISCELLANEOUS
7.1 Waiver. No
failure to exercise, and no delay in exercising, on the part of Lender, any
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right. The rights of Lender hereunder shall be in addition
to all other rights provided by law. No modification or waiver of any provision
of this Guaranty, nor consent to departure therefrom, shall be effective unless
in writing and no such consent or waiver shall extend beyond the particular case
and purpose involved. No notice or demand given in any case shall constitute a
16
waiver of
the right to take other action in the same, similar or other instances without
such notice or demand.
7.2 Notices. Any
notice, demand, statement, request or consent made hereunder shall be in writing
and shall be deemed to be received by the addressee on the third day following
the day such notice is deposited with the United States Postal Service first
class certified mail, return receipt requested, addressed to the address, as set
forth below, of the party to whom such notice is to be given, or to such other
address as either party shall in like manner designate in writing. The addresses
of the parties hereto are as follows:
|
Guarantor: |
Xxxxxxx
Properties, L.P. |
|
000
Xxxxx Xxxxx Xxxxxx, Xxxxx 000 | |
|
Xxx
Xxxxxxx, Xxxxxxxxxx 00000 | |
|
Attention:
Xxxxxx X. Xxxxxxx III | |
|
Facsimile
No.: (000) 000-0000
| |
|
with
a copy to: |
Xxxxxxxxx
& Xxxxxx, Professional Corporation |
|
Wilshire
Palisades Building | |
|
0000
Xxxxx Xxxxxx, Xxxxx 000 | |
|
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000 | |
|
Attention:
Xxxx X. Xxxxxx, Esq. | |
|
Facsimile
No.: (000) 000-0000 | |
|
Lender: |
Nomura
Credit and Capital, Inc. |
|
Xxx
Xxxxx Xxxxxxxxx Xxxxxx | |
|
Xxx
Xxxx, Xxx Xxxx 00000 | |
|
Attention:
Xxxx Xxxxxxxx | |
|
Facsimile
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. | |
|
Facsimile
No. (000) 000-0000 |
7.3 Governing
Law. This
Guaranty shall be governed in accordance with the terms and provisions of
Section 10.3 of the Loan Agreement.
7.4 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.
17
7.5 Amendments. This
Guaranty may be amended only by an instrument in writing executed by the party
or an authorized representative of the party against whom such amendment is
sought to be enforced.
7.6 Parties
Bound; Assignment; Joint and Several. This
Guaranty shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, assigns and legal representatives; provided,
however, that Guarantor may not, without the prior written consent of Lender,
assign any of its rights, powers, duties or obligations hereunder. If Guarantor
consists of more than one person or party, the obligations and liabilities of
each such person or party shall be joint and several.
7.7 Headings. Section
headings are for convenience of reference only and shall in no way affect the
interpretation of this Guaranty.
7.8 Recitals. The
recital and introductory paragraphs hereof are a part hereof, form a basis for
this Guaranty and shall be considered prima facie evidence of the facts and
documents referred to therein.
7.9 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.
7.10 Rights
and Remedies. If
Guarantor becomes liable for any indebtedness owing by Borrower to Lender, by
endorsement or otherwise, other than under this Guaranty, such liability shall
not be in any manner impaired or affected hereby and the rights of Lender
hereunder shall be cumulative of any and all other rights that Lender may ever
have against Guarantor. The exercise by Lender of any right or remedy hereunder
or under any other instrument, or at law or in equity, shall not preclude the
concurrent or subsequent exercise of any other right or remedy.
7.11 Entirety.
THIS
GUARANTY EMBODIES THE FINAL AND ENTIRE AGREEMENT OF GUARANTOR AND LENDER WITH
RESPECT TO GUARANTOR’S GUARANTY OF THE GUARANTEED OBLIGATIONS AND SUPERSEDES ANY
AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY IS
INTENDED BY GUARANTOR AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS
OF THIS GUARANTY, AND NO COURSE OF DEALING BETWEEN GUARANTOR AND LENDER, NO
COURSE OF PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS
18
OR
OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE USED TO CONTRADICT, VARY,
SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY AGREEMENT. THERE ARE NO ORAL
AGREEMENTS BETWEEN GUARANTOR AND LENDER.
7.12 Waiver
of Right To Trial By Jury.
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 NOTE, THE
LOAN AGREEMENT, THE PLEDGE AGREEMENT, OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM,
COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF
RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY GUARANTOR, AND IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE
RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO
FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS
WAIVER BY GUARANTOR.
7.13 Cooperation.
Guarantor acknowledges that Lender and its successors and assigns may (a) sell
this Guaranty, the Note and other Loan Documents to one or more investors as a
whole loan, (b) participate the Loan secured by this Guaranty to one or more
investors, (c) deposit this Guaranty, the Note and other Loan Documents with a
trust, which trust may sell certificates to investors evidencing an ownership
interest in the trust assets, or (d) otherwise sell the Loan or one or more
interests therein to investors (the transactions referred to in clauses
(a) through
(d) are
hereinafter each referred to as “Secondary
Market Transactions”).
Guarantor shall cooperate with Lender in effecting any such Secondary Market
Transaction and shall cooperate to implement all requirements imposed by any
Rating Agency involved in any Secondary Market Transaction; provided,
however, that
Guarantor shall not be required to bear any increased risk or incur any
liability or cost as a result of such cooperation and shall not be required to
modify or amend this Guaranty if such modification or amendment would (i) have a
material adverse economic effect on Guarantor, (ii) modify or amend any other
material economic term of this Guaranty , or (iii) otherwise materially increase
the obligations or decrease the rights of Guarantor pursuant to this Guaranty.
Guarantor shall provide such information and documents relating to Guarantor,
Borrower, the Property, the Collateral, and, to the extent available using
commercially reasonable efforts, any tenants of the Improvements as Lender may
reasonably request in connection with such Secondary Market Transaction. In
addition, Guarantor shall make available to Lender all information concerning
its business and operations that Lender may reasonably request. Lender shall be
permitted to share all such information with the investment banking firms,
Rating Agencies, accounting firms, law firms and other third party advisory
firms involved with the Loan and the Loan Documents or the applicable Secondary
Market Transaction. It is understood that the information provided by Guarantor
to Lender may ultimately be incorporated into the offering documents for the
Secondary Market Transaction and that various investors may also see some or all
of the information. Lender and all of the aforesaid third party advisors and
professional firms shall be entitled to rely on the information supplied by, or
on behalf of, Guarantor in the form as provided by Guarantor. Lender may
19
publicize
the existence of the Loan in connection with its marketing for a Secondary
Market Transaction, or otherwise as part of its business
development.
7.14 Reinstatement
in Certain Circumstances. If at
any time any payment of the principal of or interest under the Note or any other
amount payable by the Borrower under the Loan Documents is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, the Guarantor’s obligations hereunder with respect
to such payment shall be reinstated as though such payment has been due but not
made at such time.
[Signature
Follows on Next Page]
20
IN
WITNESS WHEREOF, this Guaranty Agreement (Mezzanine Loan) has been executed by
Guarantor as of the day and year first above written.
|
GUARANTOR: | ||
|
XXXXXXX
PROPERTIES, L.P., | ||
|
a
Maryland limited partnership | ||
|
By: |
XXXXXXX
PROPERTIES, INC., | |
|
a
Maryland corporation its
general partner | ||
|
By: |
/s/
Xxxxxx X. Xxxxx | |
|
Name:
Xxxxxx X. Xxxxx | ||
|
Title:
Executive Vice President
&
Chief Financial Officer | ||
