Exhibit 10p
GUARANTY
THIS GUARANTY is made and entered into as of the 30/th/ day of August, 2002
by XXXX CENTERS, INC., a Maryland corporation, having an address at 0000
Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxxx 00000 ("Guarantor"), in favor
of U.S. BANK NATIONAL ASSOCIATION, a national banking association, whose address
is U.S. Bank Place, 601 Second Avenue South, Mail Code EP-MN-M5RE, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000, Attention: Real Estate Banking Group, Division Head
("Agent") as administrative agent and sole lead arranger for itself and for the
other financial institutions (collectively, the "Lenders") which are or may
become parties to the Credit Agreement (as herein defined).
WITNESSETH THAT:
WHEREAS, the Lenders have agreed upon certain conditions to make a
revolving loan to XXXX HOLDINGS LIMITED PARTNERSHIP, a Maryland limited
partnership ("Borrower "), in the aggregate principal amount of up to One
Hundred Twenty-Five Million and 00/100ths Dollars ($125,000,000.00) ("Loan"),
pursuant to the terms and conditions contained in that certain Revolving Credit
Agreement of even date herewith between Agent, Lenders and Borrower (as amended
from time to time, the "Credit Agreement"), which Loan shall be evidenced by one
or more Unsecured Revolving Promissory Notes of even date herewith (whether one
or more, as modified, amended, restated or replaced from time to time, the
"Note") in the aggregate face amount of $125,000,000.00; and
WHEREAS, Borrower has on this date executed and delivered to Agent the
Note, the Credit Agreement, and certain other Loan Documents more particularly
defined in the Credit Agreement;
WHEREAS, the Guarantor is the sole general partner of Borrower; and
WHEREAS, in order to induce Lenders to make the Loan, and as additional
security for the Loan and for all sums advanced under the Note, the Credit
Agreement, and the other Loan Documents, and for the payment and performance by
Borrower of its obligations under the Note, the Credit Agreement and the other
Loan Documents, Borrower has agreed to obtain, and Guarantor has agreed to
execute, deliver and perform, this Guaranty; and
WHEREAS, Lenders have refused to make the Loan to Borrower or to make any
advances under the Loan Documents unless this Guaranty is executed by Guarantor
and is delivered to Agent on behalf of Lenders.
NOW, THEREFORE, in consideration of the Lenders' agreement to make the Loan
to Borrower in accordance with the terms of the Loan Documents, and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Guarantor, Guarantor hereby covenants and agrees with Agent and
Lenders as follows:
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1. Guarantor, for itself, its heirs, executors, administrators, personal
representatives, legal representatives, successors and assigns, hereby
primarily, unconditionally, absolutely and irrevocably, guaranties to Agent and
Lenders and to their respective successors and assigns that all payments due and
payable under the Note, including, but not limited to, payments of principal,
interest (including, but not limited to, interest accruing under the Note after
the filing of any petition under applicable federal bankruptcy laws and any
amounts paid by Borrower to Agent or Lenders and required to be disgorged by
Lenders or Agent as preferential payments under any applicable bankruptcy laws)
and all other amounts owing under the Loan Documents, shall be fully and
punctually paid in accordance with the terms of the Note, as and when due, and
whether or not accelerated pursuant to the terms of the Note, that Borrower
shall fully and punctually pay, comply with and perform all of the obligations,
terms, covenants and conditions of the Loan Documents to be by it paid, complied
with and performed, and that all warranties and representations made by Borrower
in the Loan Documents and/or in connection therewith are true and correct in all
material respects; and, if the payments due and payable under the Loan Documents
shall not be so paid, and/or if Borrower shall fail or refuse to so pay, comply
with or perform said obligations, terms, covenants and conditions of the Loan
Documents, Guarantor shall fully and punctually so pay such payments and shall
so pay, comply with and perform the obligations, terms, covenants and conditions
with respect to which Borrower has failed or refused to pay, comply with or
perform, whether or not the Note has been accelerated pursuant to the terms
thereof, shall pay the attorneys' fees and court costs incurred by Agent and
Lenders in enforcing or protecting, or obtaining the right to enforce or
protect, whether in bankruptcy court, probate court or otherwise, any of the
rights, remedies or recourses of Agent hereunder or thereunder (prior to trial,
at trial and on appeal and whether or not Agent prevails therein), and shall
reimburse Agent and the Lenders for all damages suffered thereby as the result
of the incorrectness or untruthfulness of said warranties and representations,
all without cost or expense to Agent and Lenders. The obligations and
liabilities of Guarantor hereunder shall be primary and not secondary. In
addition to all other rights of Agent and Lenders to accelerate the indebtedness
evidenced by the Note, if (a) an event of default shall occur which, pursuant to
the terms of the Note, would entitle Agent to accelerate said indebtedness, but
(b) there shall be filed with respect to Borrower a petition in bankruptcy or
similar relief under the United States Bankruptcy Code or any similar law, and
by reason of such filing or as a result of any order of court, Agent shall be
prevented from accelerating or collecting said indebtedness, then Agent shall
have the right, on behalf of Lenders, to demand from Guarantor payment in full
of, and Guarantor shall pay in full, all indebtedness evidenced or secured by
the Loan Documents, including all principal, interest, costs, expenses, fees and
charges, whether or not then due and payable by Borrower. This is a guaranty of
payment and performance and not of collection only.
2. The Note, the Credit Agreement, and all other Loan Documents are hereby
made a part of this Guaranty by reference thereto with the same force and effect
as if fully set forth herein. Guarantor hereby acknowledges having received a
true, correct and complete copy of each of the Loan Documents.
3. Guarantor hereby agrees that Agent may take other guaranties, collateral
or security to further secure the Loan Documents, or any of them, and consents
that any of the obligations, terms, covenants and conditions contained in the
Loan Documents may be
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renewed, altered, extended, changed, modified or released at the written
direction of or with the written consent of Agent on behalf of Lenders, without
in any manner affecting this Guaranty or releasing Guarantor herefrom, and
without the further consent of or notice to Guarantor, and Guarantor shall
continue to be liable hereunder to pay and perform pursuant hereto and to the
Loan Documents, as so renewed, altered, extended, changed, modified or released,
and notwithstanding the taking of such other guaranties, collateral or security.
This Guaranty is additional and supplemental to any and all other guaranties
heretofore or hereafter executed by Guarantor, or by any other person, party or
entity for the benefit of Agent, Borrower or any other person, party or entity,
in connection with the Loan, or any property, or relating to the Loan Documents
or any other loan documents, and shall not supersede or be superseded by any
other document or guaranty executed by Guarantor, or by any other person, party
or entity, for any purpose. Guarantor hereby agrees that (a) all or any part of
any collateral may be released from, and any new or additional security may be
added to, the lien and security interest of the Loan Documents; (b) Borrower,
Guarantor and any additional parties who are or may become liable for payment or
performance of the Loan Documents may hereafter be released from its or their
liability hereunder and/or under the Loan Documents; and (c) Agent may perfect
or fail to perfect, or to continue the perfection of, any lien or security
interest; and Agent may take, or delay in taking, or refuse to take, any and all
action with reference to the Loan Documents (regardless of whether the same
might vary the risk or alter the rights, remedies or recourses of Guarantor),
including specifically the settlement or compromise of any amount allegedly due
thereunder, all without notice to, consideration to or the consent of Guarantor,
and without in any way releasing, diminishing or affecting the absolute nature
of Guarantor's obligations and liabilities hereunder.
4. Guarantor hereby waives any and all legal requirements that Agent, on
behalf of Lenders, or their respective successors or assigns, must institute any
action or proceeding at law or in equity or exhaust their rights, remedies
and/or recourses against Borrower or anyone else with respect to the Loan
Documents, as a condition precedent to bringing an action against Guarantor
under this Guaranty. Guarantor agrees that Agent, on behalf of Lenders, may
simultaneously maintain an action upon this Guaranty and an action or proceeding
upon the Note or the Credit Agreement, and/or to foreclose or otherwise enforce
the other Loan Documents. All remedies afforded to Agent and Lenders, and their
successors or assigns, by reason of this Guaranty and the Loan Documents, are
separate and cumulative remedies, and no one of such remedies, whether exercised
by Agent, Lenders, or their respective successors or assigns, or not, shall be
deemed an exclusion of any of the other remedies available to Agent, Lenders or
their respective successors or assigns, at law, in equity, by statute, under the
Loan Documents, hereunder or otherwise, and shall in no way limit or prejudice
any such other remedies which Agent, Lenders, or their respective successors or
assigns, may have. Guarantor further waives any requirement that Agent demand or
seek payment or performance by Borrower or by any other party of the amounts
owing or the covenants to be performed under the Loan Documents, as a condition
precedent to bringing any action against Guarantor under this Guaranty, it being
agreed that a failure to pay, comply with or perform the obligations, terms,
covenants and conditions herein guarantied, or any breach of a representation or
warranty herein guarantied, shall, without further act, make Guarantor liable as
herein set forth. All payments made by Borrower, by Guarantor or by any other
party, and/or the proceeds of any security, may be applied by Agent upon such
items of indebtedness owed to
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Agent pursuant to the Loan Documents in such order as Agent may determine,
whether the same be due or not.
5. Guarantor specifically agrees that, in the event of the foreclosure of
any collateral for the Loan or sale of any property, and in the event the
proceeds thereof are not sufficient to pay in full the indebtedness secured
thereby, Guarantor shall be and hereby is expressly made liable to Agent for the
amount of the deficiency, notwithstanding any provision of any law or contract
which may prevent Agent from enforcing such deficiency against, or collecting
such deficiency from, Borrower, or its successors or assigns, or which provides
that the indebtedness has been satisfied as the result of the foreclosure
thereof.
6. Until the indebtedness evidenced and secured by the Loan Documents is
indefeasibly paid in full, and until each and all of the terms, covenants and
conditions of the Loan Documents and of this Guaranty are fully performed,
Guarantor shall not be released by any act, omission or thing which might, but
for this provision of this Guaranty, be deemed a legal or equitable discharge of
a surety or guarantor, or by reason of any waiver, extension, modification,
forbearance or delay by Agent, Lenders, or their respective successors or
assigns, or its or their failure to proceed promptly or otherwise, or by reason
of any further obligation or agreement between Borrower and/or the then owner of
any collateral for the Loan and Lenders, relating to the payment of any sum
evidenced thereby or to any of the other terms, covenants and conditions
contained therein or in the other Loan Documents, and Guarantor hereby expressly
waives and surrenders any defense to liability hereunder based upon the
foregoing acts, omissions, things, waivers, extensions, modifications,
forbearances, delays, obligations, agreements, or any of them. Guarantor also
waives any defense arising by virtue of any disability, insolvency, bankruptcy,
lack of authority or power, death, insanity, incompetence, liquidation or
dissolution of Borrower, Guarantor or any other surety, co-maker, endorser or
guarantor, even though rendering the Note or any of the other Loan Documents
invalid, void, unenforceable or otherwise uncollectible, it being agreed that
Guarantor shall remain liable hereunder, regardless of whether Borrower, any
other guarantor or any other person, firm or entity be found not to be liable
thereunder or hereunder for any reason, and regardless of any claim which
Guarantor might otherwise have against Agent and Lenders by virtue of Agent's or
any Lender's invocation of or failure to invoke any right, remedy or recourse
given to it hereunder or under the Loan Documents. No change in the ownership of
Borrower or Guarantor shall affect or change the terms of this Guaranty or in
any way change or reduce the liability of Guarantor hereunder.
7. Guarantor hereby waives diligence in collection, presentment for
payment, demand, protest, notice of nonpayment, notice of protest and of
dishonor, notice of extension of time for payment, notice of acceptance hereof,
notice of future advances, notice of default, notice of acceleration, notice of
intent to accelerate, notice of intent to proceed against any collateral and all
other notices now or hereafter provided for by law.
8. In the event that Guarantor shall advance or become obligated to pay any
sums hereunder, or in the event that for any reason Borrower and/or any
subsequent owner of collateral for the Loan is now or shall hereafter become
indebted or obligated to Guarantor, the amount of such sums and of such
indebtedness and obligation and interest thereon shall at all times be
subordinate as to lien, time of payment and in all other
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respects to the amounts owing to Lenders under the Loan Documents. Guarantor
shall have no right to participate in any way in the Note, in the Credit
Agreement, in the other Loan Documents or in the right, title or interest of
Agent in any collateral for the Loan, or to receive payments from Borrower upon
any such indebtedness or obligation, notwithstanding any payments made by
Guarantor hereunder, all rights of reimbursement, indemnification, subrogation
and participation being hereby expressly subordinated, unless and until the
entire indebtedness owing to Lenders under the Loan Documents has been paid in
full and all other obligations of Borrower under the Loan Documents have been
fully performed, discharged and satisfied. Guarantor agrees that, following any
default or event of default under the Loan Documents, and until the indebtedness
evidenced and secured by the Loan Documents shall have been paid in full,
Guarantor will not accept any payment or satisfaction of any kind of any
indebtedness or obligation of Borrower to Guarantor, and Guarantor hereby
assigns to Agent on behalf of the Lenders all right, title and interest in such
indebtedness and obligations, including the right to file proof of claim and to
vote thereon in connection with any bankruptcy, insolvency or reorganization
proceeding, and including the right to vote on any plan of arrangement or
reorganization. Further, Guarantor agrees that following any default or event of
default under the Loan Documents, and until the indebtedness evidenced and
secured thereby shall have been paid in full, (a) Guarantor shall not accept
payment from any other guarantor or surety by way of contribution on account of
any payment made hereunder by Guarantor to Agent, (b) Guarantor will not take
any action to exercise or enforce any rights to such contribution, and (c), if
Guarantor should receive any payment, satisfaction or security for any
indebtedness or obligation of Borrower to Guarantor or for any contribution by
any other guarantor or surety for payment made hereunder by Guarantor to Agent,
the same shall be delivered to Agent on behalf of Lenders in the form received,
endorsed or assigned as may be appropriate, for application on account of or as
security for the indebtedness evidenced and secured by the Loan Documents, and,
until so delivered, shall be held in trust for Agent as security for said
indebtedness.
9. Guarantor hereby warrants and represents unto Agent and Lenders that (a)
any and all balance sheets, net worth statements and other financial statements
and data which have heretofore been given to Agent with respect to Guarantor
more particularly described on Exhibit A hereto fairly and accurately represent
the financial condition of Guarantor as of the dates thereof, and, since the
dates thereof, there has been no material adverse change in the financial
condition of Guarantor; (b) except as may be set out on Exhibit B attached
hereto, (i) there are no legal proceedings, material claims or demands pending
against, or to the knowledge of Guarantor threatened in writing against,
Guarantor or any of Guarantor's assets, in which an adverse result would have a
material adverse effect upon Guarantor, (ii) Guarantor is not in breach or
default of any obligation to pay money, and (iii) no event (including
specifically Guarantor's execution and delivery of this Guaranty) has occurred
which, with or without the lapse of time or action by a third party, constitutes
or could constitute a material breach or material default under any document
evidencing or securing any obligation to pay money or under any other contract
or agreement to which Guarantor is a party; (c) Guarantor has knowledge of
Borrower's financial condition and affairs and of all other circumstances which
bear upon the risk assumed by Guarantor under this Guaranty; (d) Guarantor is
duly organized, validly existing and in good standing under the laws of its
jurisdiction or incorporation or organization and is duly qualified and in good
standing in every other jurisdiction where it
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is doing business except where the failure to so qualify would not have a
material adverse effect and has all power, authority, permits, consents,
authorizations and licenses necessary to carry on its business and to execute,
deliver and perform this Guaranty; and this Guaranty has been duly authorized,
executed and delivered by Guarantor so as to constitute this Guaranty the valid
and binding obligation of Guarantor, enforceable in accordance with its terms;
(e) Guarantor shall at all times maintain its existence and shall cause its
shares to be listed and admitted to trading on the New York Stock Exchange; (f)
Guarantor meets the requirements of the United States Internal Revenue Code of
1986, as amended, and any applicable regulations thereunder and rulings with
respect thereto, for qualification as a real estate investment trust; (g)
Guarantor shall not, without the prior written consent of Agent, amend,
supplement or modify the terms of its Articles of Incorporation or other charter
or enabling documents which would impair Guarantor's ability to perform its
obligations hereunder; and (h) Guarantor shall maintain its qualification to
transact business in its state of organization, in each state in which failure
so to qualify would permanently preclude Guarantor from enforcing its rights
with respect to any material asset or would expose Guarantor to any material
liability. (Guarantor hereby agrees to continue to keep itself informed thereof
while this Guaranty is in force and agrees that neither Agent nor Lenders have
or will have any obligation to investigate the financial condition or affairs of
Borrower for the benefit of Guarantor or to advise Guarantor of any fact
respecting, or any change in, the financial condition or affairs of Borrower or
any other circumstances which may bear upon Guarantor's risk hereunder which
come to the knowledge of Agent or Lenders, their respective directors, officers,
employees or agents at any time, whether or not Agent or Lenders know, believe
or have reason to know or to believe that any such fact or change is unknown to
Guarantor or might or does materially increase the risk of Guarantor hereunder.)
Guarantor shall not transfer any of its assets for the purpose of preventing
Agent from satisfying any judgment rendered under this Guaranty therefrom,
either before or after the entry of any such judgment. Guarantor shall promptly
deliver to Borrower all financial statements of Guarantor which Borrower is
required by the Credit Agreement to deliver to Agent on behalf of Lenders in
time for Borrower to deliver the same to Agent on or before the date provided
for the delivery thereof under the Credit Agreement.
10. Any notice, demand or request by Agent or its successors or assigns to
Guarantor shall be in writing and shall be deemed to have been duly given or
made if mailed by registered or certified mail, return receipt requested, to
Guarantor at the address set forth for it in the caption hereof, or at such
other address as Guarantor may notify Agent in writing, at least ten (10) days
prior to the effective date of any such change of address, by registered or
certified mail, return receipt requested, at the address set forth in the
caption hereof, or at such other address of which Agent shall have so notified
Guarantor, at least ten (10) days prior to the effective date of any such change
of address. Notice so mailed shall be deemed given and made upon deposit in the
United States mail.
11. This Guaranty, for all purposes, shall be interpreted and construed in
accordance with the laws of the State of Maryland, in which state it is to be
performed. The unenforceability or invalidity of any provision or provisions of
this Guaranty as to any persons or circumstance shall not render that provision
nor any other provision or provisions herein contained unenforceable or invalid
as to any other persons or
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circumstance, and all provisions hereof, in all other respects, shall remain
valid and enforceable.
12. Agent and Lenders may divulge all information received by them from
Guarantor or any other source, including, but not limited to, information
relating to the Loan, to Borrower, to any collateral for the Loan and to
Guarantor, to any Lender or prospective lender or participant, and Guarantor
shall cooperate with Agent and Lenders in satisfying the requirements of any
such other lender for consummating such a purchase or participation.
13. Notwithstanding any other provision or provisions herein contained, no
provision of this Guaranty shall require or permit the collection from Guarantor
of interest in excess of the maximum rate or amount, if any, which Guarantor may
be required or permitted to pay by any applicable law.
14. Guarantor hereby agrees that, at the option of Agent, any action to
enforce this Guaranty may be brought and venued in the courts of the State of
Maryland, and Guarantor hereby consents thereto and submits itself to the
jurisdiction of said courts with respect to any such action. Guarantor hereby
waives any right which Guarantor may have to a trial by jury in any action
relating to this Guaranty.
15. This instrument shall inure to the benefit of Agent, Lenders and their
successors and assigns, and shall bind Guarantor and Guarantor's heirs,
executors, administrators, personal representatives, legal representatives,
successors and assigns. The obligations of Guarantor under this Guaranty shall
be enforceable in all events against Guarantor, its successors and assigns, as a
claim against its estate or otherwise against the representatives of its estate,
its heirs at law, the devisees and beneficiaries of its total estate and each of
them. The use of any gender herein shall include all other genders.
16. Notwithstanding anything herein contained, this Guaranty shall become
null and void in the event that any person or entity shall pay, in full, the
amount of principal, interest and all other sums and payments which may be then
owing under the Loan Documents in accordance with the terms thereof and shall
comply with and perform all of the other obligations of Borrower under the Loan
Documents.
17. Capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Credit Agreement.
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IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty under seal as
of the day and year first above written, intending to be legally bound.
GUARANTOR:
WITNESS/ATTEST: XXXX CENTERS, INC., a Maryland
corporation
________________________
By: _________________________________
Name:
Title:
STATE OF MARYLAND )
COUNTY OF XXXXXXXXXX ) ss:
I, a Notary Public in and for the aforesaid jurisdiction, do hereby certify
that _________________, who is personally well known to me as, or satisfactorily
proven to be, the person named as __________________ of Xxxx Centers, Inc. in
the foregoing Guaranty, bearing date as of the ____ day of _____________, 2002,
personally appeared before me in the said jurisdiction, and acknowledged the
same to be the act and deed of Xxxx Centers, Inc., party thereto, and delivered
the same as such.
GIVEN under my hand and official seal this ____ day of ___________, 2002.
______________________________________
Notary Public
My Commission Expires:________________________________
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