EXHIBIT 10 (VVV)
GUARANTY
--------
DECEMBER 15, 1998
WHEREAS, NEW YORK LIFE INSURANCE COMPANY, a New York mutual insurance
company (the "Lender") has agreed to make a loan to OVERSEAS PARTNERS (MADISON
PLAZA), LLC, an Illinois limited liability company, (the "Borrower") in the
principal sum of ONE HUNDRED TWENTY-FIVE MILLION and No/100 Dollars
($125,000,000.00) (the "Loan"), which Loan will be (a) evidenced by and payable
in accordance with the provisions of that certain promissory note dated of even
date herewith in the principal sum of $125,000,000.00 given by the Borrower to
the Lender (as the same may be from time to time amended, the "Note"), and (b)
secured by that certain Mortgage, Assignment of Leases and Rents and Security
Agreement dated of even date herewith given by the Borrower to Lender with
respect to certain premises located in Chicago, Illinois, as more particularly
described therein (the "Premises"), and intended to be duly recorded in Xxxx
County, Illinois (as the same may be from time to time amended, the "Mortgage"),
and
WHEREAS, the Lender is willing to make the Loan only if the undersigned
parties, Overseas Partners Capital Corp., a Delaware corporation ("OPCC") and
Overseas Holding Company, Inc., a Delaware corporation ("Holding") (hereinafter
referred to, jointly and severally, as the "Guarantor"), execute and deliver
this Guaranty and guarantee payment to the Lender of the Debt (as herein
defined) in the manner hereinafter provided;
WHEREAS, Guarantor will directly benefit from the making of the Loan by the
Lender to the Borrower;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, and in order to induce the Lender to make the Loan to the
Borrower, Guarantor hereby acknowledges, agrees and confirms that all of the
above recitals are true, correct and complete and hereby guarantees, absolutely,
irrevocably and unconditionally, to the Lender the full and timely payment of
the Debt and covenants and agrees with the Lender as follows:
1. DEFINITIONS. All capitalized terms used in this Guaranty not otherwise
------------
defined herein shall have the meaning ascribed to such terms in the Mortgage.
The term "Debt" as used in this Guaranty shall mean the following:
(a) any and all costs, expenses and fees for the following matters
relating to leases of all or any portion of the Premises (even though the actual
payment of such amounts may occur or be due and payable after Borrower no longer
holds legal or beneficial title to the Premises):
(i) all initial tenant improvements required by leases to be paid for
by landlord to prepare initial space for new occupancy by tenants
pursuant to leases entered into before or during Borrower's
ownership of legal or beneficial title to the Premises;
(ii) all leasing commissions required to be paid by landlord with
respect to the initial term (but not any renewal, extension or
expansion thereof) of new leases entered into before or during
Borrower's ownership of legal or beneficial title to the
Premises;
(iii) all tenant improvements required by leases to be paid for by
landlord as the result of any lease extension or renewal which
is exercised by, or effected with respect to, any tenant during
Borrower's ownership of legal or beneficial title to the
Premises, but only such tenant improvements as are required to
be paid for by landlord prior to the expiration of the then-
existing term or with respect to the applicable extension or
renewal term;
(iv) all leasing commissions required to be paid by landlord as a
result of any lease extension or renewal which is exercised by,
or effected with respect to, any tenant during Borrower's
ownership of legal or beneficial title to the Premises, but
only such commissions as are payable with respect to the time
periods for which such extension are extended or renewed (and
not any further extension, renewal or expansion not exercised
during Borrower's ownership);
(v) all initial tenant improvements required by leases to be paid
for by landlord to prepare initial expansion space for new
occupancy by tenants as a result of any lease expansion which
is exercised by, or effected with respect to, any tenant during
Borrower's ownership of legal or beneficial title to the
Premises;
(vi) all leasing commissions required to be paid by landlord with
respect to the ten-n of any lease expansion which is exercised
by, or effected with respect to, any tenant during Borrower's
ownership of legal or beneficial title to the Premises (but not
any further renewal, extension or expansion thereof not
exercised during Borrower's ownership);
(b) any losses, damages, costs and expenses incurred by Lender as a result
of (i) any material misstatement of fact (A) by Borrower or any person or entity
constituting Borrower to induce Lender to advance the principal amount evidenced
hereby or (B) contained in any Loan Document, (ii) fraud committed by Borrower
or any person or entity constituting Borrower, (iii) application of any
insurance proceeds, condensation awards, trust funds, or Rents (as defined in
the Mortgage) by Borrower, Borrower's agents or Borrower's authorized
representatives in a manner which is not in accordance with the provisions of
the Mortgage, (iv) breach of any representation or warranty contained in
Subsections 2.03C or D of the Mortgage, (v) default with
----------------------
respect to any covenant contained in Subsection 1.05F of the Mortgage, (vi) any
----------------
default with respect to Borrower's obligations to pay real estate taxes and
assessments due and payable against the Premises during the time period of
Borrower's ownership thereof pursuant to Section1.02 of the Mortgage or to pay
-----------
insurance premiums pursuant to Section 1.03 of the Mortgage or (vii) any loss,
------------
damage, expense or liability on the part of Lender (including, without
limitation, reasonable attorneys' fees actually incurred and disbursements)
arising from, in respect of, as a consequence of or in connection with any of
the following: (A) the existence of any circumstance or the occurrence of any
action described in clause (i) of Subsection 1.05F(l)(d) of the Mortgage; (B)
-----------------------
claims asserted by any person or entity (including, without limitation, any
governmental agency or quasi-governmental authority, board, bureau, commission,
department, instrumentality or public body, court, or administrative tribunal)
in connection with or in any way arising out of the presence, storage, USE,
disposal, generation, transportation, or treatment of any Hazardous Material (as
defined in the Mortgage) on, in or under the Premises; (C) the violation or
claimed violation of any Hazardous Materials Laws (as defined in the Mortgage)
in regard to the Premises, whether such violation or claimed violation occurred
prior to or after the date of this Note and regardless of whether such violation
occurred prior to or after the time that Borrower became owner of the Premises
but only to the extent such violation or claim violation relates to or arises or
occurs prior to or during ownership or operation of the Premises by Borrower,
Borrower's affiliate, Borrower's agents, or authorized representatives of
Borrower or its affiliates; (D) the preparation of an environmental audit on the
Premises, whether conducted or authorized by Borrower, Lender or a third party
or the implementation of any environmental audit's recommendations; or (E) all
agreements and indemnification obligations of Borrower under that certain
Environmental Indemnity Agreement of even date herewith in favor of Lender.
(c) any and all costs and expenses, including without limitation
reasonable attorneys' fees, incurred by Lender in enforcing, defending or
protecting its rights, remedies and recourses hereunder, whether or not suit is
filed in connection with same, or in connection with Guarantor or any party
comprising Guarantor, becoming a party to a voluntary or involuntary federal or
state bankruptcy, insolvency or other proceeding.
2. GUARANTY. Guarantor hereby absolutely and unconditionally guarantees
---------
under Lender the full and prompt payment when due, and agrees to pay to Lender
immediately upon demand after Borrower's failure to pay all or any portion of
the Debt.
3. FINANCIAL CONDITION AND INFORMATION. Guarantor hereby represents and
------------------------------------
warrants that all financial statements of Guarantor heretofore delivered to the
Lender by or on behalf of Guarantor are true and correct in all material
respects and fairly present the financial condition of Guarantor as of the
respective dates thereof, and no material adverse change has occurred in the
financial conditions reflected therein since the respective dates thereof except
as disclosed by Borrower or Guarantor to Lender in writing. In addition,
Guarantor covenants that so long as any portion of the Debt remains outstanding
and unpaid, Guarantor will furnish Lender annually, within one hundred twenty
(120) days next following the fiscal year of the Guarantor, with a complete copy
of an annual financial statement with respect to Guarantor prepared in
accordance with generally accepted accounting principles consistently applied
and certified by the chief financial officer of Guarantor to be true, correct
and complete, and otherwise in form and substance reasonably satisfactory to
Lender. Together with each such financial statement, Guarantor shall furnish to
Lender a certificate signed by a duly authorized representative of such
Guarantor certifying on the date thereof that to the best of such
representative's knowledge either
that there does or does not exist an event which constitutes, or which upon
notice or lapse of time or both would constitute, an Event of Default under this
Agreement and, if a default or Event of Default exists, the nature thereof and
the period of time it has existed (a "Certification"). Guarantor shall furnish
to Lender, within ten (10) days after request, such further detailed financial
and other information (including, but not limited to, financial statements) as
may be requested by Lender with respect to Guarantor, as of a date not earlier
than that specified by Lender in such request, together with a Certification
with respect thereto.
4. SEPARATE OBLIGATION. Guarantor hereby expressly agrees that this
--------------------
Guaranty is independent of, and in addition to, all collateral granted, pledged
or assigned under the Note, Mortgage and other documents and instruments given
to evidence or secure the Loan, and Guarantor hereby consents that from time to
time, before or after any default by the Borrower, with or without further
notice to or assent from Guarantor:
(a) any security at any time held by or available to the Lender for
any obligation of the Borrower, or any security at any time held by or
available to the Lender for any obligation of any other person or party
secondarily or otherwise liable for all or any portion of the Debt,
including any guarantor of the Debt, or any obligations of Guarantor
hereunder, may be settled, exchanged, surrendered or released and the
Lender may fail to set off and may release, in whole or in part, any
balance of any deposit account or credit on its books in favor of the
Borrower, or any such other person or party;
(b) any obligation of the Borrower, or of any such other person or
party, may be changed, altered, renewed, extended, continued, accelerated,
surrendered, compromised, settled, waived or released in whole or in part,
or any default with respect thereto waived; and
(c) the Lender may extend further credit in any manner whatsoever to
the Borrower, and generally deal with the Borrower or any of the above
mentioned security, deposit account, credit on it books or other person or
party as the Lender may see fit;
and Guarantor shall remain bound under this Guaranty, without any loss of rights
by the Lender and without affecting the liability of Guarantor, notwithstanding
any such exchange, surrender, release, change, alteration, renewal, extension,
continuance, compromise, waiver, inaction, extension of further credit or other
dealing.
5. WAIVER. Guarantor hereby waives:
(a) notice of acceptance of this Guaranty and of the making of the
Loan or any advance thereof by the Lender to the Borrower;
(b) presentment and demand for payment of the Debt or any portion
thereof,
(c) protest and notice of dishonor or default to Guarantor or to any
other person or party with respect to the Debt or any portion
thereof,
(d) all other notices to which Guarantor might otherwise be entitled
except as specified in this Guaranty; and
(e) any demand under this Guaranty.
In addition, Guarantor hereby waives, and agrees to waive, the benefits of any
provision of law requiring that Lender exhaust any right or remedy, or take any
action, against the Borrower, any Guarantor, any other person and/or property.
6. EVENT OF DEFAULT. If Guarantor violates any provision of this
-----------------
Guaranty (and such violation is not cured within five (5) business days after
notice from Lender to Guarantor thereof, provided that Guarantor will not be
entitled to any notice of default under this clause more than four (4) times
during the term hereof)' then, and in such event, the Lender may exercise any
and all rights and remedies it may have at law, in equity or as provided herein.
7. GUARANTY OF PAYMENT. This is a guaranty of payment and not of
---------------------
collection and Guarantor further waives any right to require that any action be
brought against the Borrower or any other person or party or to require that
resort be had to any security or to any balance of any deposit account or credit
on the books of the Lender in favor of the Borrower or any other person or
party. Any payment on account of or reacknowledgment of the Debt by the
Borrower, or any other party liable therefor shall be deemed to be taken or made
on behalf of Guarantor and shall serve to start anew the statutory period of
limitations applicable to the Debt.
8. SUCCESSORS AND ASSIGNS. Each reference herein to the Lender shall be
----------------------
deemed to include its successors and assigns, in whose favor the provisions of
this Guaranty shall also inure. Each reference herein to Guarantor shall be
deemed to include the heirs, executors, administrators, legal representatives,
successors and assigns (as applicable) of Guarantor, all of whom shall be bound
by the provisions of this Guaranty, provided, however, that Guarantor shall in
no event nor under any circumstance have the right, without obtaining the prior
written consent of the Lender, to assign or transfer Guarantor's obligations and
liabilities under this Guaranty, in whole or in part, to any, other person,
party or entity.
9. MISCELLANEOUS. The term "Guarantor" as used herein shall, if this
---------------
Guaranty is assigned by more than one party, unless otherwise stated herein,
mean the "Guarantor and, if Guarantor consists of more than one party, each of
them" and each undertaking herein contained shall be their joint and several
undertaking. If there is more than one party comprising Guarantor, the Lender
may proceed against none, one or more of Guarantor at one time or from time to
time as it sees fit in its sole and absolute discretion. If any party hereto
shall be a partnership, the agreements and obligations on the part of Guarantor
herein contained shall remain in force and application notwithstanding any
changes in the individuals composing the partnership and the term "undersigned"
shall include any altered or successive partnerships but the predecessor
partnerships and their partners shall not thereby be released from any
obligations or liability hereunder. If any party hereto shall be a corporation,
the agreements and obligations on the part of Guarantor herein contained shall
remain in force and application notwithstanding the merger, consideration,
reorganization or absorption thereof, and the term "undersigned" shall include
such new entity, but the old entity shall not thereby be released from any
obligations or liabilities hereunder.
10. DELAY NOT WAIVER. No delay on the part of the Lender in exercising
-----------------
any right or remedy under this Guaranty or failure to exercise the same shall
operate as a waiver in whole or in part of any such right or remedy. No notice
to or demand on Guarantor shall be deemed to be a waiver of the obligation of
Guarantor or of the right of the Lender to take further action without notice or
demand as provided in this Guaranty. No course of dealing between Guarantor
and the Lender shall change, modify or discharge, in whole or in part, this
Guaranty or any obligations of Guarantor hereunder.
11. MODIFICATION IN WRITING ONLY. This Guaranty may only be modified,
-----------------------------
amended, changed or terminated by an agreement in writing signed by the Lender
and Guarantor. No waiver of any term, covenant or provision of this Guaranty
shall be effective unless given in writing by the Lender and if so given by the
Lender shall only be effective in the specific instance in which given. The
execution and delivery hereafter to the Lender by Guarantor of a new instrument
of guaranty or any reaffirmation of guaranty, of whatever nature, shall not
terminate, supersede or cancel this instrument, unless expressly so provided
therein, and all rights and remedies of the Lender hereunder or under any
instrument of guaranty hereafter executed and delivered to the Lender by
Guarantor shall be cumulative and may be exercised singly or concurrently.
12. ABSOLUTE AND UNCONDITIONAL OBLIGATIONS. Guarantor acknowledges that
----------------------------------------
this Guaranty and Guarantor's obligations under this Guaranty are and shall at
all times continue to be absolute, irrevocable and unconditional in all
respects, and shall at all times be valid and enforceable irrespective of any
other agreements or circumstances of any nature whatsoever which might otherwise
constitute a defense to this Guaranty and the obligations of Guarantor under
this Guaranty or the obligations of any other person or party (including,
without limitation, the Borrower) relating to this Guaranty or the obligations
of Guarantor hereunder or otherwise with respect to the Debt, including, but not
limited to, a foreclosure of the Mortgage or the realization upon any other
collateral given, pledged or assigned as security for all or any portion of the
Debt, or the filing of a petition under Title 11 of the United States Code with
regard to the Borrower or Guarantor, or the commencement of an action or
proceeding for the benefit of the creditors of the Borrower or Guarantor, or the
obtaining by the Lender of title to, respectively, the Premises or to any
collateral given, pledged or assigned as security for the Debt by reason of the
foreclosure or enforcement of the Mortgage or any other pledge or security
agreement, the acceptance of a deed or assignment in lieu of foreclosure or
sale, or otherwise. This Guaranty sets forth the entire agreement and
understanding of the Lender and Guarantor with respect to the matters covered by
this Guaranty, and Guarantor acknowledges that no oral or other agreements,
understandings, representations or warranties exist with respect to this
Guaranty or with respect to the obligations of Guarantor under this Guaranty,
except those specifically set forth in this Guaranty.
13. CONSENT, CAPACITY AND AUTHORITY. If Guarantor or any party comprising
--------------------------------
Guarantor is a corporation, partnership or association, as to such entity, this
Guaranty has been validly authorized, executed and delivered by such entity.
Such entity represents and warrants to the Lender that it has the corporate or
partnership, as applicable, power to do so and to perform its obligations under
this Guaranty and this Guaranty constitutes the legally binding obligation of
Guarantor fully enforceable against such entity in accordance with the terms
hereof. Guarantor further represents and warrants to the Lender that:
(a) neither the execution and delivery of this Guaranty nor the
consummation of the transactions contemplated hereby nor compliance with the
terms and provisions hereof will violate any applicable provision of law or any
applicable regulation or other manifestation of governmental action; and
(b) all necessary approvals, consents, licenses, registrations and
validations of any governmental regulatory body, including, without limitation,
approvals required to permit Guarantor to execute and carry out the provisions
of this Guaranty, for the validity of the obligations of Guarantor hereunder and
for the making of any payment or remittance of any funds required to be made by
Guarantor under this Guaranty, have been obtained and are in full force and
effect.
14. NO CONTRIBUTION RIGHT. Notwithstanding any payments made by Guarantor
----------------------
pursuant to the provisions of this Guaranty, Guarantor shall not seek to enforce
or collect upon any rights which it now has or may acquire against the Borrower
either by way of subrogation, indemnity, reimbursement or contribution for any
amount paid under this Guaranty or by way of any other obligations whatsoever of
the Borrower to Guarantor, until the entire Debt and expenses in connection
therewith shall have been paid in full, nor file, assert or receive payment on
any claim, whether now existing or hereafter arising, against the Borrower in
the event of the commencement of a case by or against the Borrower under Title
11 of the United States Code. In the event either a petition is filed under
said Title 11 of the United States Code with regard to the Borrower or an action
or proceeding is commenced for the benefit of the creditors of the Borrower,
this Guaranty shall at all times thereafter remain effective in regard to any
payments or other transfers of assets to the Lender received from or on behalf
of the Borrower prior to notice of termination of this Guaranty and which are or
may be held voidable on the grounds of preference or fraud, whether or not the
Debt has been paid in full.
15. NOTICE TO PARTIES. All notices and demand hereunder shall be in
-----------------
writing and shall be deemed to have been sufficiently given or served for all
purposes when presented personally or sent by certified or registered mail with
return receipt requested or by generally recognized overnight delivery service,
addressed to the parties at the addresses stated below, or at such other address
as either party may hereafter notify the other in writing as aforesaid:
Guarantor: OVERSEAS PARTNERS CAPITAL CORP.
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Legal Department
with a courtesy copy to: OVERSEAS PARTNERS CAPITAL CORP,
Mintflower Place
X.X. Xxx 0000
0 Xxx-xx-Xxxxx Xxxx
Xxxxxxxx XX XX
Bermuda
Attn: Xxxxxx X. Xxxxxx, Esq.
Lender: NEW YORK LIFE INSURANCE COMPANY
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx I 00 IO
Attn: Senior Vice President
Mortgage Finance Department
Service of any such notice or demand so made shall be deemed effective on the
day of actual delivery as shown by the addressee's return receipt or the
expiration of forty-eight (48) hours after the date sent by generally recognized
overnight delivery service or mailed, whichever is the earlier in time, except
that service of any notice of default or notice of sale provided or required by
law shall, if mailed, be deemed effective on the date of mailing.
16. GOVERNING LAW. This Guaranty is, and shall be deemed to be, a
---------------
contract entered into under and pursuant to the laws of the State of Illinois.
17. JURISDICTION. Guarantor hereby agrees that the venue of any
--------------
litigation arising in connection with the Debt or in respect of any of the
obligations of Guarantor under this Guaranty, to the extent permitted by law,
may at the election of Lender be in Xxxx County, Illinois, Guarantor hereby
waiving all objections thereto. Guarantor agrees to submit to personal
jurisdiction in the State of Illinois in any action or proceeding arising out of
this Guaranty. Guarantor hereby agrees and consents that without limiting other
methods of obtaining jurisdiction, personal jurisdiction over Guarantor in any
such action or proceeding may be obtained within or without the jurisdiction of
any court located in Illinois and that any process or notice of motion or other
application to any such court in connection with any such action or proceeding
may be served upon Guarantor by registered or certified mail to or by personal
service at the last known address of Guarantor, whether such address be within
or without the jurisdiction of any such court.
18. WAIVER OF SET OFF, ETC, Guarantor absolutely, unconditionally and
----------------------
irrevocably waives any and all right to assert or interpose any defense, setoff,
counterclaim or crossclaim of any nature whatsoever with respect to this
Guaranty or the obligations of Guarantor under this Guaranty or the obligations
of any other person or party (including without limitation, the Borrower)
relating to this Guaranty or the obligations of Guarantor hereunder or otherwise
with respect to the Loan in any action or proceeding brought by the Lender to
collect the Debt, or any portion thereof, or to enforce the obligations of
Guarantor under this Guaranty.
19. RECOURSE OBLIGATION. No exculpatory provisions which may be
---------------------
contained in the Note or in any other document evidencing or securing the Note
shall in any event or under any circumstances be deemed or construed to modify,
qualify, or affect in any manner whatsoever the obligations and liabilities of
Guarantor under this Guaranty.
20. UNCONDITIONAL LIABILITY. The liability of Guarantor shall not be
------------------------
released, diminished, impaired, reduced or adversely affected by the invalidity,
illegality or unenforceability of all or part of the Loan, or any document or
agreement executed in connection with the Loan, for any reason whatsoever,
including without limitation the fact that (i) the Loan, or any part thereof,
exceeds the amount permitted by law, (ii) the act of creating the Loan or any
part thereof is ultra xxxxx, (iii) the officers or representatives executing the
----- -----
Note or the other documents evidencing or securing the Loan or otherwise
creating the Loan acted in excess of their authority, (iv) the Loan violates
applicable usury laws, (v) the Borrower has valid defenses, claims or offsets
(whether at law, in equity or by agreement) which render the Debt or the Loan
wholly or partially uncollectable from the Borrower, (vi) the creation,
performance or repayment of the Loan (or the execution, delivery and performance
of any document or instrument representing part of the Loan or executed in
connection with the Loan, or given to secure the repayment of the Loan) is
illegal, uncollectable or unenforceable, or (vii) the Note or any other
documents evidencing or securing the Loan have been forged or otherwise are
irregular or not genuine or authentic, it being agreed that Guarantor shall
remain liable hereon regardless of whether the Borrower or any other person be
found not liable on the Loan or any part thereof for any reason.
Notwithstanding this paragraph or any other provision of this Guaranty or any
Loan Document, if all outstanding stock in OPCC is transferred to Holding and
OPCC transfers to Holding all of the outstanding stock in all OPCC subsidiaries
owned as of the date hereof by OPCC, then OPCC shall no longer be liable as
provided under this Guaranty, and Lender and Holding hereby agree that upon the
occurrence of such transfer only Holding shall be liable in accordance with the
terms of this Guaranty; and promptly upon the written request of Holding (which
request shall contain the certification of Holding and OPCC that such transfers
have occurred), Lender shall execute and deliver an acknowledgment that only
Holding is liable hereunder.
[SIGNATURE PAGE TO GUARANTY]
IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty under seal the
day and year first above set forth.
GUARANTOR:
OVERSEAS PARTNERS CAPITAL
CORP., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Title: Vice President
--------------------
Attest: /s/ Xxxx Xxxxx Xxxxxxxxxx
-------------------------
Title: Attorney
-------------------------
(Corporate Seal)
OVERSEAS HOLDING COMPANY,
INC., a Delaware Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Title: Vice President
--------------------
Attest: /s/ Xxxx Xxxxx Xxxxxxxxxx
-------------------------
Title: Attorney
-------------------------
(Corporate Seal)
