Contract
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Exhibit 10.1 3675734.5 AMENDED AND RESTATED GUARANTY AGREEMENT This Amended and Restated Guaranty Agreement (this “Guaranty”) is made as of August 28, 2023, by PACIFIC OAK SOR PROPERTIES, LLC, a Delaware limited liability company (“Guarantor”), in favor of BANK OF AMERICA, N.A., a national banking association, as administrative agent for Lenders as that term is defined below (collectively with its successors or assigns, in such capacity, “Administrative Agent”), and each of the Lenders. Recitals X. Xxxxxxxxx previously entered into that certain Guaranty Agreement dated as of June 6, 2018 in favor of Administrative Agent and Lenders (“Existing Guaranty”). The Existing Guaranty guaranteed certain obligations of PACIFIC OAK SOR MARQUETTE PLAZA, LLC, a Delaware limited liability company (“Marquette Borrower”) pursuant to a mortgage loan in the original aggregate principal amount of Seventy Million Seven Hundred Eighty-Five Thousand and No/100 Dollars ($70,785,000.00) made to Marquette Borrower by the Lenders pursuant to loan documents evidencing, securing and otherwise made in connection with the Loan, including without limitation that certain Loan Agreement dated as of June 6, 2018 (“Existing Loan Agreement” together with the other loan documents evidencing, securing and otherwise made in connection with the Loan, including without limitation, the Existing Guaranty, referred to herein collectively as, the “Existing Loan Documents”). The Loan is secured by, among other things, the Marquette Property (as defined in the Loan Agreement). B. The Loan is fully disbursed and Lenders have no remaining unfunded commitments thereunder. The outstanding balance of the Loan is Sixty Million Four Hundred Fifty-Nine Thousand Five Hundred One and 23/100 Dollars ($60,459,501.23). X. Xxxxxxxxx Xxxxxxxx has requested and Administrative Agent and Lender agreed to amend and restate the Existing Loan Agreement to (i) increase the Aggregate Commitment (as defined in the Loan Agreement) under the Loan from Sixty Million Four Hundred Fifty-Nine Thousand Five Hundred One and 23/100 Dollars ($60,459,501.23) to One Hundred Eighty-Eight Million Thirty-Five Thousand Nine Hundred Forty-Three and No/100 Dollars ($188,035,943.00) and make an additional advance thereunder in the amount of One Hundred Twenty-Seven Million Five Hundred Seventy-Six Thousand Four Hundred Forty-One and 77/100 Dollars ($127,576,441.77), (ii) extend the term of the Loan, (iii) join PACIFIC OAK SOR AUSTIN SUBURBAN PORTFOLIO, LLC, a Delaware limited liability company (“Austin Borrower”), PACIFIC OAK SOR II OAKLAND CITY CENTER, LLC, a Delaware limited liability company (“Oakland Borrower”), and 1180 XXXXXXX XXXXX RENEWAL, LLC, a Delaware limited liability company (“Xxxxxxx Xxxxxxxx”) as additional joint and several co-borrowers with Marquette Borrower under the Loan, (iv) accept the “Austin Property”, “Oakland Property”, and “Xxxxxxx Property” (each as defined in the Loan Agreement) as additional collateral for the Loan, and (v) make certain other modifications to the Existing Loan Agreement and the Existing Loan Documents on the terms and conditions set forth in the Loan Agreement. D. Administrative Agent and certain other lenders from time to time (each a “Lender” and collectively, “Lenders”), and Oakland Borrower, Xxxxxxx Xxxxxxxx, Xxxxxx Xxxxxxxx, and Marquette Borrower (individually and collectively, using an interpretation most favorable to Lenders, “Borrower”), are entering into concurrently herewith that certain Amended and Restated Loan Agreement dated as of the date hereof (herein called, as it may hereafter be modified, supplemented, restated, extended, or renewed and in effect from time to time, the “Loan Agreement”), which Loan Agreement sets forth the terms and conditions of a loan (the “Loan”) to Borrower. E. Pursuant to Section 1.2 of the Loan Agreement, Xxxxxx Xxxxxxxx, Oakland Borrower, 2 Xxxxxxx Xxxxxxxx and Xxxxxxxxx Borrower agree and consent to the joinder and assumption of the Loan by Xxxxxx Xxxxxxxx, Oakland Borrower and Xxxxxxx Xxxxxxxx. F. A condition precedent to Xxxxxxx’ obligation to amend and restate the Loan to Borrower is Guarantor’s execution and delivery to Administrative Agent of this Guaranty. G. The Loan will be evidenced by one or more promissory notes of even date herewith, each made by Xxxxxxxx and payable to the order of a Lender, in the aggregate original principal amount of One Hundred Eighty-Eight Million Thirty-Five Thousand Nine Hundred Forty-Three and No/100 Dollars ($188,035,943.00) (such notes, as they may hereafter be renewed, extended, supplemented, increased or modified and in effect from time to time, and all other notes given in substitution therefor, or in modification, renewal, or extension thereof, in whole or in part, are herein called the “Note”). H. Any capitalized term used and not defined in this Guaranty shall have the meaning given to such term in the Loan Agreement. This Guaranty is one of the Loan Documents described in the Loan Agreement. Agreements For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and in order to induce Lenders to make the Loan to Borrower, Guarantor hereby guarantees to Administrative Agent and the Lenders the prompt and full payment and performance of the indebtedness and obligations described below in this Guaranty (collectively called the “Guaranteed Obligations”), this Guaranty being upon the following terms and conditions: Section 1. Guaranty of Payment. Guarantor hereby unconditionally and irrevocably guarantees to Administrative Agent and Lenders the punctual payment when due, whether by lapse of time, by acceleration of maturity, or otherwise, of (i) of any and all obligations, indebtedness and liabilities of Borrower that constitute Obligations (as defined in the Loan Agreement), subject to the limitations provided in the attached Rider (which Rider is incorporated herein by this reference, the same as though set forth herein in full) (the “Limited Repayment Guaranteed Obligations”), (ii) upon the occurrence of a Triggering Event (as hereinafter defined), all principal and interest (including interest accruing after maturity and after the commencement of any bankruptcy or insolvency proceeding by or against Borrower, whether or not allowed in such proceeding) now or hereafter due and owing, or which Borrower is obligated to pay, pursuant to the terms of any Note, the Loan Agreement, the Security Instrument, or any of the other Loan Documents, as the same may from time to time be amended, supplemented, restated or otherwise modified, and (iii) regardless of whether a Triggering Event shall have occurred, one hundred percent (100%) of all amounts owing under the Environmental Agreement by Borrower (as the same has been amended and restated pursuant to and in accordance with the Loan Agreement) (the “Guaranteed Environmental Obligations”), subject to the limitations provided in the attached Rider (the amounts described in clauses (i), (ii) and (iii) above shall be referred to herein, collectively, as the “Indebtedness”). The Indebtedness shall also include all costs and expenses incurred by Administrative Agent in seeking to enforce Administrative Agent’s rights and remedies under this Guaranty, including court costs, costs of alternative dispute resolution and reasonable attorneys’ fees, whether or not suit is filed or other proceedings are initiated thereon. This Guaranty covers, subject to the other terms and conditions of this Guaranty, the Indebtedness presently outstanding and the Indebtedness arising subsequent to the date hereof, including all amounts advanced by Administrative Agent or Lenders in stages or installments. The guaranty of Guarantor as set forth in this Section 1 is a continuing guaranty of payment and not a guaranty of collection. 3 As used herein, “Triggering Event” means: (i) any voluntary transfer of the Property in violation of the terms of the Loan Documents, (ii) Borrower’s voluntary filing of any proceeding for relief under any federal or state bankruptcy, insolvency or receivership laws or any assignment for the benefit of creditors made by Borrower, or (iii) the involuntary filing against Borrower by Guarantor or any member of Borrower, Guarantor or any Affiliate thereof of any proceeding for relief under any federal or state bankruptcy, insolvency or receivership laws. Section 2. Guaranty of Specific Obligations. Guarantor also hereby unconditionally and irrevocably guarantees payment of, and agrees to protect, defend, indemnify and hold harmless Administrative Agent and each Lender for, from and against, one hundred percent (100%) of any deficiency, loss or damage suffered by Administrative Agent or any Lender because of: (a) The intentional misapplication or misappropriation by Borrower of any funds derived from the Property, including the misapplication or misappropriation by Borrower of rent, security deposits, insurance proceeds, condemnation awards, or other income arising with respect to the Property; (b) Borrower’s failure to maintain insurance as required by the Loan Documents; except there shall be no liability under this Section 2(b) if (i) the cash flow generated from the Property (on a combined basis) is not sufficient to pay the premiums therefor, and (ii) Borrower provides at least thirty (30) days’ prior notice to Administrative Agent that Borrower will not maintain the required insurance coverages as a result of the circumstances described in clause (i) above; (c) Xxxxxxxx’s intentional commission of physical waste with respect to the Property; and (d) The fraud or intentional misrepresentation by Borrower or Guarantor made in or in connection with the Loan Documents or the Loan. Section 3. Primary Liability of Guarantor. (a) This Guaranty is an absolute, irrevocable and unconditional guaranty of payment and performance, and Guarantor shall be liable for the payment and performance of the Guaranteed Obligations as a primary obligor. This Guaranty shall be effective as a waiver of, and Guarantor hereby expressly waives, any right to which Guarantor may otherwise have been entitled, whether existing under statute, at Law or in equity, to require Administrative Agent or any Lender to take prior recourse or proceedings against any collateral, security or Person. It shall not be necessary for Administrative Agent or any Lender, in order to enforce such payment or performance by Guarantor, first to institute suit or pursue or exhaust any rights or remedies against Borrower or other Person liable on such indebtedness or for such performance, or to enforce any rights against any security given to secure such indebtedness or performance, or to join Borrower or any other Person liable for the payment or performance of the Guaranteed Obligations or any part thereof in any action to enforce this Guaranty, or to resort to any other means of obtaining payment or performance of the Guaranteed Obligations; provided, however, that nothing herein contained shall prevent Administrative Agent or any Lender from suing on any Note or foreclosing any Security Instrument or exercising any other right under the Loan Documents. (b) Suit may be brought or demand may be made against Borrower or against any or all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Obligations, or against any one or more of them, separately or together, without impairing the rights of Administrative Agent or any Lender against any party hereto. 4 Section 4. Certain Agreements and Waivers by Guarantor. (a) Guarantor agrees that neither the rights or remedies of Administrative Agent and Lenders nor Guarantor’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, Guarantor waives any rights, claims or defenses arising from any such events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute, unconditional and irrevocable irrespective of: (i) any limitation on the liability of, or recourse against, any other Person in any Loan Document or arising under any Law; (ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Borrower under the other Loan Documents; (iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations; (iv) the operation of any statutes of limitation or other Laws regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by Administrative Agent or any Lender against Guarantor, to the fullest extent permitted by Law; (v) any homestead exemption or any other exemption under applicable Law, all of which are waived by Guarantor to the fullest extent permitted by Law; (vi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, or any impairment of Guarantor’s recourse against any Person or collateral; (vii) whether express or by operation of Law, any partial release of the liability of Guarantor hereunder (except to the extent expressly so released) or any complete or partial release of Borrower or any other Person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations; (viii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of Borrower or any other Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations; (ix) either with or without notice to or consent of Guarantor, any renewal, extension, modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes with respect to the construction of the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment,
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21 [Signature Page to Amended and Restated Guaranty Agreement] IN WITNESS WHEREOF, Guarantor has duly executed and delivered this Guaranty under seal as of the date first written above. Address of Guarantor: Pacific Oak SOR Properties, LLC c/o Pacific Oak Capital Advisors LLC 0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000 Xxxxx Xxxx, Xxxxxxxxxx 00000 Attn: Xxxxx Xxxxxxxx Telephone: (000) 000-0000 E-Mail: xxxxxxxxx@xxx-xxx.xxx GUARANTOR: PACIFIC OAK SOR PROPERTIES, LLC, a Delaware limited liability company By: Pacific Oak SOR (BVI) Holdings, Ltd., a British Virgin Islands company limited by shares, its sole member By: Pacific Oak Strategic Opportunity Limited Partnership, a Delaware limited partnership, its sole shareholder By: Pacific Oak Strategic Opportunity REIT, Inc., a Maryland corporation, its sole general partner By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer Address of Administrative Agent: Bank of America, N.A. 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 Attn: Xxxxxx Xxxxx Rider-1 RIDER TO GUARANTY AGREEMENT 1. Limited Repayment Guaranteed Obligations. (a) Notwithstanding any language of the Guaranty, Guarantor’s obligations with respect to the repayment of principal of the Loan for the Limited Repayment Guaranteed Obligations under Section 1(i) of the Guaranty shall not at any time exceed the Principal Obligation Amount. Without limitation of the foregoing, before the Termination Condition has been satisfied, Guarantor shall remain liable for, and the Limited Repayment Guaranteed Obligations shall include, the punctual payment of all interest, including any interest accruing at any specified default or past due rate, whether accruing before or after maturity or default, and also including interest accruing after the commencement of any bankruptcy or insolvency proceeding by or against Borrower, whether or not allowed in such proceeding, prepayment premiums, fees, late charges, costs, expenses and indemnification indebtedness which may now or hereafter be due or owing, or which Borrower is obligated to pay, pursuant to any document, instrument or agreement evidencing or governing the Indebtedness, until the Indebtedness is paid and satisfied in full. Upon the satisfaction of the Termination Condition, Guarantor shall have no further liability or obligation under Section 1(i) of the Guaranty. The terms and conditions of this Rider shall not limit or otherwise affect any obligations of Guarantor under this Guaranty except as specifically provided in this Rider. (b) The “Termination Condition” shall be satisfied upon Administrative Agent’s receipt of the Required Principal Payment (as defined in the Loan Agreement) due on or before December 1, 2023 in accordance with Section 1.6(a) of the Loan Agreement, so long as at the time of Administrative Agent’s receipt of such payment, after giving effect to such payment, no Event of Default has occurred and is continuing. (c) The “Principal Obligation Amount” means (i) prior to the satisfaction of the Termination Condition, the sum of Ten Million Dollars ($10,000,000.00); and (ii) from and after the satisfaction of the Termination Condition (without limitation of Guarantor’s obligations pursuant to Sections 1(ii) or (iii) or Section 2 of the Guaranty), Zero Dollars ($0). Notwithstanding any language of this Guaranty, the agreement of Administrative Agent and Lenders to limit its recovery against Guarantor pursuant this Section 1 of this Rider applies to Guarantor’s obligations under Section 1(i) only, and does not in any way limit Guarantor’s obligations under Section 1(ii), Section 1(iii) or Section 2 of the Guaranty. For the avoidance of doubt, the limitations on Guarantor’s liability under Section 1(i) of the Guaranty shall be null and void upon the occurrence of any Triggering Event. 2. Guaranteed Environmental Obligations. (a) Xxxxxxxx has elected in its own discretion, at Xxxxxxxx’s sole cost and expense, to obtain the Environmental Insurance Policy (as defined in and substantially and materially in the form approved by Administrative Agent pursuant to the Loan Agreement), and has caused Administrative Agent, for the benefit of the Lenders, to be named as an additional insured, by appropriate endorsement, with a right to notice of termination to Administrative Agent, on the Environmental Insurance Policy. (b) Administrative Agent agrees that, so long as the Environmental Insurance Policy is then in effect and no Default has occurred and is continuing, if Administrative Agent or any Lender has any claim for indemnification under the Environmental Agreement, which Administrative Agent, in its sole and reasonable discretion, determines is within the coverage, in Rider-2 scope and amount, for Administrative Agent and/or the Lenders under the Environmental Insurance Policy, then (i) Administrative Agent shall make a claim under the Environmental Insurance Policy (the “Environmental Insurance Claim”); and (ii) upon making the Environmental Insurance Claim, Administrative Agent and the Lenders shall forbear from demanding payment from Guarantor for such indemnification claim or filing a lawsuit against Guarantor for a money judgment pursuant to Section 1(iii) of the Guaranty with respect to such indemnification claim until the earlier to occur of either (A) the insurer’s denial of coverage on the applicable Environmental Insurance Claim; or (B) regardless of whether the insurer acknowledges coverage, the date that is ninety (90) days following the date of the Environmental Insurance Claim. (c) To the extent that the insurer or its agent requests information or documents in connection with such Environmental Insurance Claim, Administrative Agent shall notify Guarantor of such requests, and Guarantor shall cause Borrower to promptly and with due diligence, provide the insurer, with copies to Administrative Agent, with any and all documents and all information requested by the insurer. (d) Any claim by Administrative Agent or any Lender against Guarantor for money damages pursuant to Administrative Agent’s and/or any Lender’s rights under Section 1(iii) of this Guaranty with respect to any indemnification claim under the Environmental Agreement shall be reduced by the net amount (after reduction for Administrative Agent’s and Lenders’ expenses, including reasonable attorneys’ fees), if any, actually received by Administrative Agent from the insurer for such indemnification claim, but only if, when and as such amounts are in fact received by Administrative Agent from the insurer. In no event, however, shall the amount of any sums due from (but then unpaid by) the insurer to Administrative Agent as a consequence of any Environmental Insurance Claim act as a setoff or otherwise reduce Administrative Agent’s or any Xxxxxx’s rights or recovery against Borrower under the Environmental Agreement or against Guarantor under this Guaranty. (e) Notwithstanding the foregoing, nothing herein shall (i) limit Administrative Agent’s or any Lender’s rights to file a claim against Guarantor in any bankruptcy proceeding filed by or against Guarantor; or (ii) affect any claim or remedy that Administrative Agent or any Lender may have against Guarantor under this Guaranty, except to the extent that Administrative Agent’s and Lenders’ rights under Section 1(iii) of this Guaranty are reduced, in accordance with the foregoing provisions, by net amounts received by Administrative Agent from the insurer on account of an applicable Environmental Insurance Claim. Administrative Agent and Lenders shall have the right to enforce the obligations under this Guaranty for any indemnification claim under the Environmental Agreement: (A) which comprise all or any portion of any deductible or retained amount under the Environmental Insurance Policy, (B) to the extent that, after Administrative Agent or any Indemnified Party has made claim upon any insurer under the Environmental Insurance Policy, such insurer has refused the defense of any claim or the coverage as to any such claim, or (C) are in or for amounts which exceed the proceeds of the Environmental Insurance Policy determined by Administrative Agent, in its sole and reasonable discretion, likely to be available to cover such claim after deducting the estimated cost of defending such claim. (f) In the event that Guarantor pays to Administrative Agent pursuant to Section 1(iii) of this Guaranty any Guaranteed Environmental Obligation or Guarantor itself pays from its own funds to any third party any amounts required to be paid (or costs and expenses for obligations required to be performed) by Borrower pursuant to the Environmental Agreement (as applicable, a “Guarantor Environmental Payment”), Administrative Agent acknowledges and agrees, for itself and each Lender, that if proceeds of the Environmental Policy are thereafter received by Xxxxxxxx, Guarantor or Administrative Agent in payment of any claim under the Environmental Insurance Policy for the particular Guaranteed Environmental Obligation or other cost, expense or other
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Rider-3 amount so paid by Guarantor, then (i) if such proceeds are received by Guarantor, Guarantor may retain such proceeds (but without limiting any of Administrative Agent’s rights under this Guaranty with respect to any other Indebtedness), (ii) if such proceeds are received by Borrower, then, so long as no Default has occurred and is then continuing, Borrower may disburse such proceeds to Guarantor in an amount not to exceed the amount of the applicable Guarantor Environmental Payment (which disbursement shall not constitute a Restricted Payment under the Loan Agreement), and (iii) if such proceeds are received by Administrative Agent, then, so long as no Default has occurred and is continuing, Administrative will release such proceeds to Borrower in an amount not to exceed the applicable Guarantor Environmental Payment for disbursement to Guarantor under clause (ii) above.