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EXHIBIT 10.2
GUARANTY
THIS GUARANTY ("GUARANTY") is made as of the 5th day of April, 2000, by
Guarantor (as hereinafter defined) for the benefit of BANK ONE, TEXAS, NATIONAL
ASSOCIATION, a national banking association ("AGENT"), as Agent for itself and
each of the Lenders (as defined in the Construction Loan Agreement dated of even
date herewith by and among Borrower, Agent and the Lenders ("LENDERS") from time
to time a party thereto (including Agent, in its capacity as a Lender), as may
be amended, supplemented or restated from time to time, the "LOAN AGREEMENT").
1. Definitions. As used in this Guaranty, the following terms shall
have the meanings indicated below:
(a) The term "AGENT" shall mean Bank One, Texas, National
Association, whose address for notice purposes is the following:
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxx, First Vice President
(b) The term "BORROWER" (whether one or more) shall mean the
following:
Briar Xxxxxxx Xxxxx Partners, L.P.
00000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
(c) The term "GUARANTEED INDEBTEDNESS" shall mean (i) all
indebtedness, obligations and liabilities of Borrower to Lenders, now
existing or hereafter arising under or evidenced by the Loan Agreement,
the Notes, the other Loan Documents, and all other indebtedness,
obligations and liabilities of Borrower to Lenders arising under the Loan
Documents or in connection with the Loan, (ii) all accrued but unpaid
interest on any of the indebtedness described in (i) above, (iii) all
indebtedness of Borrower owing to Lenders under any ISDA Master Agreement
now or hereafter executed between Borrower and Agent and/or the Lenders
and any other interest rate agreements, interest rate swap agreements,
interest rate caps, collars or similar agreements or any rate management
agreements entered into between Borrower and Agent and/or the Lenders,
(iv) all obligations of Borrower to Agent and the Lenders under any
documents evidencing, securing, governing and/or pertaining to all or any
part of the indebtedness described in (i), (ii) and (iii) above
(collectively, the "LOAN DOCUMENTS"), (v) all costs and expenses incurred
by Agent and Lenders in connection with the collection and administration
of all or any part of the indebtedness and obligations described in (i),
(ii), (iii) and (iv) above or the protection or preservation of, or
realization upon, the collateral securing all or any part of such
indebtedness and obligations, including without limitation all reasonable
attorneys' fees, and (vi) all renewals, extensions, modifications and
rearrangements of the indebtedness and obligations described in (i),
(ii), (iii), (iv) and (v) above.
GUARANTY - PAGE 1
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(d) The term "GUARANTOR" shall mean NEW PLAN EXCEL REALTY
TRUST, INC., a Maryland corporation, whose address for notice purposes is
the following:
New Plan Excel Realty Trust, Inc.
0000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx Xxxxxx
(e) The term "FINAL COMPLETION" shall mean the date on which
(i) all of the shell portion of the Improvements have been completed in
accordance with the Plans and Specifications, without any mechanic's or
materialmen's liens currently filed and outstanding against the Premises
(except for any liens which have been bonded around in accordance with
the requirements of Tex. Property Code Section 53.171 et. seq.), (ii) all
invoices for labor and/or material provided in connection with the
construction of the Improvements have been paid in full, and full and
final lien waivers and releases have been provided by all Contractors and
subcontractors providing such materials and/or labor, except for invoices
or amounts which are being contested in accordance with Section 4.1(o) of
the Loan Agreement, (iii) the Architect issues a certificate of
substantial completion for the shell portion of the Improvements and the
Tenant Improvements where Borrower is required to construct such Tenant
Improvements under the Leases, (iv) the appropriate Governmental
Authority issues a final, unconditional certificate of occupancy for all
of the shell portion of the Improvements and for those Tenant
Improvements which Borrower is required to construct under the Leases and
(v) all governmental permits and approvals necessary for the use,
occupancy and operation of all areas within the Improvements have been
issued by the appropriate Governmental Authority.
(f) Any capitalized terms used but not defined in this Guaranty
shall have the meaning given to such capitalized terms in the Loan
Agreement.
2. Obligations.
(a) As an inducement to the Lenders to extend or continue to
extend credit and other financial accommodations to Borrower, Guarantor,
for value received, does hereby unconditionally and absolutely guarantee
to Agent for the benefit of the Lenders the prompt and full payment and
performance of the Guaranteed Indebtedness when due or declared to be due
and at all times thereafter; provided, however, Guarantor's liability for
the Guaranteed Indebtedness shall not in any event exceed the "MAXIMUM
AMOUNT". As used herein, the term "MAXIMUM AMOUNT" means the sum of (i)
$26,850,939, plus (ii) the amount of any sitework costs which Lenders
have advanced under the Loan to pay for sitework costs on the Target
Tract and which have not been reimbursed by Target and used to pay for
Project Costs in accordance with the Project Budget (herein called the
"UNREIMBURSED TARGET SITEWORK COSTS").
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(b) Borrower and/or an affiliate of Guarantor has funded a
portion of the required Borrower's Equity as of this date in the amount
of $20,000,000, and Guarantor agrees that $15,850,939 of the remaining
Borrower's Equity (the "REMAINING EQUITY") is to be funded by an
affiliate of Guarantor in monthly installments of approximately
$1,300,000 in accordance with the terms of Section 6.3 of the Loan
Agreement as construction of the Improvements progresses. Guarantor's
liability for the Maximum Amount of the Guaranteed Indebtedness shall be
reduced on a dollar for dollar basis as each dollar of the Remaining
Equity is funded by Borrower or any affiliate of Guarantor and used to
pay Project Costs in accordance with the Project Budget, so that at such
time as all of the Remaining Equity is funded and used to pay Project
Costs in accordance with the Project Budget, the Maximum Amount (and
Guarantor's maximum liability for the Guaranteed Indebtedness) shall be
reduced to and deemed not to exceed the sum of (i) Eleven Million Dollars
($11,000,000), plus (ii) the amount of any Unreimbursed Target Sitework
Costs.
(c) At such time as (i) all of the Remaining Equity has been
funded, (ii) Final Completion has been achieved, (iii) the Premises
achieves for a period of six (6) consecutive months the greater of (x) a
Debt Coverage Ratio of 1.30, or (y) a Yield on Debt of at least 13%, and
(iv) no Event of Default is then existing under the Loan Agreement, then
Guarantor's liability for the Guaranteed Indebtedness (and the Maximum
Amount) shall be reduced to and deemed not to exceed the sum of (i)
$6,000,000, plus (ii) the amount of any Unreimbursed Target Sitework
Costs.
(d) In the event of a foreclosure by Agent on the Premises
pursuant to the Deed of Trust, or the acceptance by Agent of a deed in
lieu of foreclosure for an amount agreed to by Agent (herein called a
"DEED-IN-LIEU"), the liability of Guarantor for the Guaranteed
Indebtedness shall be equal to the lesser of (i) the Guaranteed
Indebtedness outstanding immediately (x) after such foreclosure sale and
credit of the bid price accepted at such foreclosure sale or (y) after
acceptance by Agent of such Deed-In-Lieu and application to the
Indebtedness of the amount agreed to by Agent and Borrower in exchange
for such Deed-In-Lieu, or (ii) the amount of the Guaranteed Indebtedness
for which Guarantor was liable under this Guaranty (if any) immediately
prior to such foreclosure or acceptance of a Deed-In-Lieu, it being the
intention of the Agent, the Lenders and Guarantor that the application of
proceeds of such foreclosure sale or the amount agreed to by Agent in
exchange for a Deed-In-Lieu shall be in such a manner as not to reduce or
extinguish such Guarantor's liability hereunder for the Guaranteed
Indebtedness until that portion of the Guaranteed Indebtedness
outstanding under the Note, the Loan Agreement and the other Loan
Documents for which such Guarantor is not liable hereunder has been paid
in full. Notwithstanding the foregoing, Agent and the Lenders shall not
be required to enforce its rights against any collateral which has been
given or pledged to secure all or any part of the Guaranteed Indebtedness
or this Guaranty, it being agreed that Agent may first seek to enforce
the obligations of the Guarantor under this Guaranty prior to enforcing
any rights or remedies against any other parties or any collateral. In no
event, however, shall Guarantor be liable under this Guaranty for any
amount exceeding the sum of (i) the Maximum Amount, plus (ii) the amount
of any Unreimbursed Target Sitework Costs.
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(f) At any time and from time to time, but no more often than
once every calendar quarter, Guarantor may request in writing to Agent
that Agent confirm whether Guarantor's liability for the Guaranteed
Indebtedness has been reduced pursuant to the terms of this Guaranty.
Upon receipt of such request, Agent shall respond to Guarantor within
fifteen (15) days of such request confirming the amount of the Guaranteed
Indebtedness for which Guarantor is liable under this Guaranty (or which
shall request any further information needed by Agent to make such
determination such as the most recent financial statements for the
Premises or evidence of Guarantor's equity being funded to pay Project
Costs), provided such confirmation shall be based on the assumption that
all financial information provided to Agent to make such determination is
true and correct in all material respects.
3. Character of Obligations.
(a) This is an absolute, continuing and unconditional guaranty
of payment and not of collection and if at any time or from time to time
there is no outstanding Guaranteed Indebtedness, the obligations of
Guarantor with respect to any and all Guaranteed Indebtedness incurred
thereafter shall not be affected. All Guaranteed Indebtedness heretofore,
concurrently herewith or hereafter made by Lenders to Borrower shall be
conclusively presumed to have been made or acquired in acceptance hereof.
Guarantor shall be primarily liable, jointly and severally, with Borrower
and any other guarantor of all or any part of the Guaranteed
Indebtedness.
(b) Agent and the Lenders may, at its sole discretion and
without impairing its rights hereunder, apply any payments on the
Guaranteed Indebtedness that Agent and the Lenders receive to that
portion of the Guaranteed Indebtedness, if any, not guaranteed hereunder.
(c) Guarantor agrees that its obligations hereunder shall not
be released, diminished, impaired, reduced or affected by the existence
of any other guaranty or the payment by any other guarantor of all or any
part of the Guaranteed Indebtedness.
(d) Guarantor's obligations hereunder shall not be released,
diminished, impaired, reduced or affected by, nor shall any provision
contained herein be deemed to be a limitation upon, the amount of credit
which the Lenders may extend to Borrower, the number of transactions
between Agent, the Lenders and Borrower, payments by Borrower to Agent
and/or the Lenders, or Agent's or Lenders' allocation of payments by
Borrower.
4. Representations and Warranties. Guarantor hereby represents and
warrants the following to Agent and each of the Lenders:
(a) This Guaranty may reasonably be expected to benefit,
directly or indirectly, Guarantor, and (i) if Guarantor is a corporation,
the Board of Directors of Guarantor has determined that this Guaranty may
reasonably be expected to benefit,
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directly or indirectly, Guarantor, or (ii) if Guarantor is a partnership,
the requisite number of its partners have determined that this Guaranty
may reasonably be expected to benefit, directly or indirectly, Guarantor;
and
(b) Guarantor is familiar with, and has independently reviewed
the books and records regarding, the financial condition of Borrower and
is familiar with the value of any and all collateral intended to be
security for the payment of all or any part of the Guaranteed
Indebtedness; provided, however, Guarantor is not relying on such
financial condition or collateral as an inducement to enter into this
Guaranty; and
(c) Guarantor has adequate means to obtain from Borrower on a
continuing basis information concerning the financial condition of
Borrower and Guarantor is not relying on Agent to provide such
information to Guarantor either now or in the future; and
(d) Guarantor has the power and authority to execute, deliver
and perform this Guaranty and any other agreements executed by Guarantor
contemporaneously herewith, and the execution, delivery and performance
of this Guaranty and any other agreements executed by Guarantor
contemporaneously herewith do not and will not violate (i) any agreement
or instrument to which Guarantor is a party, (ii) any law, rule,
regulation or order of any governmental authority to which Guarantor is
subject, or (iii) its articles or certificate of incorporation or bylaws,
if Guarantor is a corporation, or its partnership agreement, if Guarantor
is a partnership; and
(e) None of the Agent, Lenders or any other party has made any
representation, warranty or statement to Guarantor in order to induce
Guarantor to execute this Guaranty; and
(f) The financial statements and other financial information
regarding Guarantor heretofore and hereafter delivered to Agent are and
shall be true and correct in all material respects and fairly present the
financial position of Guarantor as of the dates thereof, and no material
adverse change has occurred in the financial condition of Guarantor
reflected in the financial statements and other financial information
regarding Guarantor heretofore delivered to Agent since the date of the
last statement thereof; and
(g) As of the date hereof, and after giving effect to this
Guaranty and the obligations evidenced hereby, (i) Guarantor is and will
be solvent, (ii) the fair saleable value of Guarantor's assets exceeds
and will continue to exceed its liabilities (both fixed and contingent),
(iii) Guarantor is and will continue to be able to pay its debts as they
mature, and (iv) if Guarantor is not an individual, Guarantor has and
will continue to have sufficient capital to carry on its business and all
businesses in which it is about to engage.
5. Covenants. Guarantor hereby covenants and agrees with Agent and
the Lenders as follows:
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(a) Guarantor shall not, so long as its obligations under this
Guaranty continue, transfer or pledge any material portion of its assets
for less than full and adequate consideration.
(b) Guarantor will deliver to Agent within one hundred twenty
(120) days after the close of each fiscal year of Guarantor: (a) a
statement of condition or balance sheet of Guarantor as at the end of
such fiscal year; (b) an annual operating statement showing in reasonable
detail all income and expenses of Guarantor for such fiscal year; and (c)
a cash flow statement showing in reasonable detail all cash flow of
Guarantor for such fiscal year. The statements in (a), (b) and (c) above
shall be audited by an independent certified public accountant and shall
contain an unqualified opinion by such independent certified public
accountant that the financial statements fairly present the financial
condition of Guarantor in all material respects. In addition to the
foregoing annual financial statements, all of the foregoing shall also be
furnished to Agent within sixty (60) days after the end of each calendar
quarter on an unaudited basis, reflecting the financial status and
results of operations of the Guarantor for the calendar quarter then
ended and the results of the Guarantor's operations for the fiscal year
to date, and shall be certified to by an officer of Guarantor.
(c) Guarantor shall comply with all terms and provisions of the
Loan Documents that apply to Guarantor.
(d) Guarantor shall promptly inform Agent of (i) any litigation
or governmental investigation against Guarantor which has a significantly
likelihood of success or affecting any security for all or any part of
the Guaranteed Indebtedness or this Guaranty which, if determined
adversely, might have a material adverse effect upon the financial
condition of Guarantor or upon such security or might cause a default
under any of the Loan Documents, (ii) any claim or controversy which
might become the subject of such litigation or governmental investigation
relating to this Guaranty, the Premises or the Loan, and (iii) any
material adverse change in the financial condition of Guarantor.
6. Consent and Waiver.
(a) Guarantor waives (i) promptness, diligence and notice of
acceptance of this Guaranty and notice of the incurring of any
obligation, indebtedness or liability to which this Guaranty applies or
may apply and waives presentment for payment, notice of nonpayment,
protest, demand, notice of protest, notice of intent to accelerate,
notice of acceleration, notice of dishonor, diligence in enforcement and
indulgences of every kind, and (ii) except as expressly required by the
Loan Documents, the taking of any other action by Agent or any Lender,
including without limitation, giving any notice of default or any other
notice to, or making any demand on, Borrower, any other guarantor of all
or any part of the Guaranteed Indebtedness or any other party.
(b) Guarantor waives any rights Guarantor has under, or any
requirements imposed by, Chapter 34 of the Texas Business and Commerce
Code, as in effect on the date of this Guaranty or as it may be amended
from time to time.
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(c) Agent and Lenders may at any time, without the consent of
or notice to Guarantor, without incurring responsibility to Guarantor and
without impairing, releasing, reducing or affecting the obligations of
Guarantor hereunder: (i) change the manner, place or terms of payment of
all or any part of the Guaranteed Indebtedness, or renew, extend, modify,
rearrange or alter all or any part of the Guaranteed Indebtedness (except
for any provisions relating to the reduction or release of Guarantor's
liability under this Guaranty); (ii) change the interest rate accruing on
any of the Guaranteed Indebtedness (including, without limitation, any
periodic change in such interest rate that occurs because such Guaranteed
Indebtedness accrues interest at a variable rate which may fluctuate from
time to time); (iii) sell, exchange, release, surrender, subordinate,
realize upon or otherwise deal with in any manner and in any order any
collateral for all or any part of the Guaranteed Indebtedness or this
Guaranty or setoff against all or any part of the Guaranteed Indebtedness
after the occurrence of an Event of Default; (iv) neglect, delay, omit,
fail or refuse to take or prosecute any action for the collection of all
or any part of the Guaranteed Indebtedness or this Guaranty or to take or
prosecute any action in connection with any of the Loan Documents; (v)
exercise or refrain from exercising any rights against Borrower or
others, or otherwise act or refrain from acting; (vi) settle or
compromise all or any part of the Guaranteed Indebtedness and subordinate
the payment of all or any part of the Guaranteed Indebtedness to the
payment of any obligations, indebtedness or liabilities which may be due
or become due to Agent, the Lenders or others; (vii) apply any deposit
balance, fund, payment, collections through process of law or otherwise
or other collateral of Borrower to the satisfaction and liquidation of
the indebtedness or obligations of Borrower to Agent and the Lenders, if
any, not guaranteed under this Guaranty; and (viii) apply any sums paid
to Agent or any Lender by Guarantor, Borrower or others to the Guaranteed
Indebtedness in such order and manner as specified in the Loan Documents
or if not so specified, in such order as Agent and the Lenders, in their
sole discretion, may determine.
(d) Notwithstanding any provision in this Guaranty to the
contrary, Guarantor hereby subordinates in favor of Agent and the Lenders
(i) any and all rights of subrogation, reimbursement, indemnification or
contribution which it may have after payment in full or in part of the
Guaranteed Indebtedness against others liable on all or any part of the
Guaranteed Indebtedness, (ii) any and all rights to be subrogated to the
rights of Agent and the Lenders in any collateral or security for all or
any part of the Guaranteed Indebtedness after payment in full or in part
of the Guaranteed Indebtedness, and (iii) any and all other rights and
claims of Guarantor against Borrower or any third party as a result of
Guarantor's payment of all or any part of the Guaranteed Indebtedness.
(e) Should Agent and/or the Lenders seek to enforce the
obligations of Guarantor hereunder by action in any court or otherwise,
Guarantor waives any requirement, substantive or procedural, that (i)
Agent and Lenders first enforce any rights or remedies against Borrower
or any other person or entity liable to Agent and the Lenders for all or
any part of the Guaranteed Indebtedness, including without limitation
that a judgment first be rendered against Borrower or any other person or
entity, or that
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Borrower or any other person or entity should be joined in such cause, or
(ii) Agent and Lenders shall first enforce rights against any collateral
which shall ever have been given to secure all or any part of the
Guaranteed Indebtedness or this Guaranty. Such waiver shall be without
prejudice to Agent's and Lenders' right, at their option, to proceed
against Borrower or any other person or entity, whether by separate
action or by joinder.
(f) In addition to any other waivers, agreements and covenants
of Guarantor set forth herein, Guarantor hereby further waives and
releases all claims, causes of action, defenses and offsets for any act
or omission of Agent and the Lenders, and their directors, officers,
employees, representatives or agents in connection with the
administration of the Guaranteed Indebtedness, except for such parties'
willful misconduct and gross negligence.
7. Obligations Not Impaired.
(a) Guarantor agrees that its obligations hereunder shall not
be released, diminished, impaired, reduced or affected by the occurrence
of any one or more of the following events: (i) the disability or lack of
corporate power of Borrower, Guarantor or any other guarantor of all or
any part of the Guaranteed Indebtedness, (ii) any receivership,
insolvency, bankruptcy or other proceedings affecting Borrower, Guarantor
or any other guarantor of all or any part of the Guaranteed Indebtedness,
or any of their respective property; (iii) the partial or total release
or discharge of Borrower or any other guarantor of all or any part of the
Guaranteed Indebtedness, or any other person or entity from the
performance of any obligation contained in any instrument or agreement
evidencing, governing or securing all or any part of the Guaranteed
Indebtedness, whether occurring by reason of law or otherwise; (iv) the
taking or accepting of any collateral for all or any part of the
Guaranteed Indebtedness or this Guaranty; (v) the taking or accepting of
any other guaranty for all or any part of the Guaranteed Indebtedness;
(vi) any failure by Agent or the Lenders to acquire, perfect or continue
any lien or security interest on collateral securing all or any part of
the Guaranteed Indebtedness or this Guaranty; (vii) the impairment of any
collateral securing all or any part of the Guaranteed Indebtedness or
this Guaranty; (viii) any failure by Agent or the Lenders to sell any
collateral securing all or any part of the Guaranteed Indebtedness or
this Guaranty in a commercially reasonable manner or as otherwise
required by law; (ix) any invalidity or unenforceability of or defect or
deficiency in any of the Loan Documents; or (x) any other circumstance
which might otherwise constitute a defense available to, or discharge of,
Borrower or any other guarantor of all or any part of the Guaranteed
Indebtedness.
(b) This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of all or any
part of the Guaranteed Indebtedness is rescinded or must otherwise be
returned by Agent or any Lender upon the insolvency, bankruptcy or
reorganization of Borrower, Guarantor, any other guarantor of all or any
part of the Guaranteed Indebtedness, or otherwise, all as though such
payment had not been made.
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(c) In the event Borrower is a corporation, joint stock
association or partnership, or is hereafter incorporated, none of the
following shall affect Guarantor's liability hereunder: (i) the
unenforceability of all or any part of the Guaranteed Indebtedness
against Borrower by reason of the fact that the Guaranteed Indebtedness
exceeds the amount permitted by law; (ii) the act of creating all or any
part of the Guaranteed Indebtedness is ultra xxxxx; or (iii) the officers
or partners creating all or any part of the Guaranteed Indebtedness acted
in excess of their authority. Guarantor hereby acknowledges that
withdrawal from, or termination of, any ownership interest in Borrower
now or hereafter owned or held by Guarantor shall not alter, affect or in
any way limit the obligations of Guarantor hereunder.
(d) If, by operation of law, Borrower is not liable for any
amounts that would otherwise be owed under any of the Loan Documents,
including, without limitation, interest accruing under the Loan Documents
following the filing of any bankruptcy or any insolvency proceeding by or
against Borrower, Guarantor agrees that it is the intention and agreement
hereof that Guarantor shall be liable for the payment of the aforesaid
amounts and the Guaranteed Indebtedness regardless of whether such
amounts may be enforceable against Borrower or whether the obligation to
pay such amounts is non-existent or ceases by operation of law.
8. Actions against Guarantor. Upon the occurrence of an Event of
Default in the payment or performance of all or any part of the Guaranteed
Indebtedness when such Guaranteed Indebtedness becomes due, whether by its
terms, by acceleration or otherwise, Guarantor shall, without notice or demand,
promptly pay the amount due thereon to Agent, in lawful money of the United
States, at Agent's address set forth in subparagraph 1(a) above. One or more
successive or concurrent actions may be brought against Guarantor, either in the
same action in which Borrower is sued or in separate actions, as often as Agent
deems advisable. The exercise by Agent or any Lender of any right or remedy
under this Guaranty or under any other agreement or instrument (including any
Loan Document), at law, in equity or otherwise, shall not preclude concurrent or
subsequent exercise of any other right or remedy. The books and records of Agent
shall be admissible in evidence in any action or proceeding involving this
Guaranty and shall be prima facie evidence of the payments made on, and the
outstanding balance of, the Guaranteed Indebtedness. If there is more than one
Guarantor of the Guaranteed Indebtedness, suit may be brought against any
Guarantor, jointly and severally and against less than all of them without
impairing the rights of Agent and the Lenders against the other Guarantors; and
Agent and the Lenders may compromise with any of the Guarantors for less than
all of the Guaranteed Indebtedness and release any of the Guarantors from all
further liability to Agent and the Lenders for the Guaranteed Indebtedness
without impairing the right of Agent and Lenders to demand and collect the
balance of the Guaranteed Indebtedness from other Guarantors not so released,
but it is agreed among any such Guarantors that such compromising and release
shall not impair the rights of Guarantors as among themselves.
9. Payment by Guarantor. Whenever Guarantor pays any sum which is or
may become due under this Guaranty, written notice must be delivered to Agent
contemporaneously with such payment stating the amount of such payment and that
such payment is made pursuant to this Guaranty. Such notice shall be effective
for purposes of this paragraph when
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contemporaneously with such payment Agent receives such notice either by: (a)
personal delivery to the address and designated department of Agent identified
in subparagraph 1(a) above, or (b) United States mail, certified or registered,
return receipt requested, postage prepaid, addressed to Agent at the address
shown in subparagraph 1(a) above. In the absence of such notice to Agent by
Guarantor in compliance with the provisions hereof, any sum received by Agent on
account of the Guaranteed Indebtedness shall be conclusively deemed paid by
Borrower.
10. Notice of Sale. In the event that Guarantor is entitled to receive
any notice under the Uniform Commercial Code, as it exists in the state
governing any such notice, of the sale or other disposition of any collateral
securing all or any part of the Guaranteed Indebtedness or this Guaranty,
reasonable notice shall be deemed given when such notice is deposited in the
United States mail, postage prepaid, at the address for Guarantor set forth in
subparagraph 1(d) above, ten (10) days prior to the date any public sale, or
after which any private sale, of any such collateral is to be held; provided,
however, that notice given in any other reasonable manner or at any other
reasonable time shall be sufficient.
11. Subordination. Guarantor hereby subordinates any and all
indebtedness of Borrower now or hereafter owed to Guarantor to the Guaranteed
Indebtedness, and agrees with Agent and the Lenders that Guarantor shall not
demand or accept any payment of principal or interest from Borrower except as
expressly permitted by the terms of that certain Intercreditor and Subordination
Agreement dated of even date herewith between Agent, Guarantor and Borrower,
shall not claim any offset or other reduction of Guarantor's obligations
hereunder because of any such indebtedness and shall not take any action to
obtain any of that collateral securing the Guaranteed Indebtedness; provided,
however, that, if Agent so requests, any indebtedness of Borrower to Guarantor
shall be collected, enforced and received by Guarantor as trustee for the
Lenders and be paid over to Agent on account of the Guaranteed Indebtedness, but
without reducing or affecting in any manner the liability of Guarantor under the
other provisions of this Guaranty.
12. Participation. Guarantor acknowledges and agrees that Agent and
the Lenders may from time to time sell or offer to sell interests in the
Guaranteed Indebtedness and the Loan Documents to one or more participants.
Guarantor authorizes Agent to disseminate any information it has pertaining to
the Guaranteed Indebtedness, including, without limitation, complete and current
credit information on Borrower, any of its principals and Guarantor, to any such
participant or prospective participant.
13. Waiver by Agent or Lenders. No delay on the part of Agent or the
Lenders in exercising any right hereunder or failure to exercise the same shall
operate as a waiver of such right. In no event shall any waiver of the
provisions of this Guaranty be effective unless the same be in writing and
signed by an officer of Agent, and then only in the specific instance and for
the purpose given.
14. Successors and Assigns. This Guaranty is for the benefit of Agent
and the Lenders, and their successors and assigns. This Guaranty is binding upon
Guarantor and Guarantor's heirs, executors, administrators, personal
representatives and successors, including
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without limitation any person or entity obligated by operation of law upon the
reorganization, merger, consolidation or other change in the organizational
structure of Guarantor.
15. Costs and Expenses. Guarantor shall pay on demand by Agent all
costs and expenses, including without limitation, all reasonable attorneys' fees
incurred by Agent and the Lenders in connection with the enforcement and/or
collection of this Guaranty. This covenant shall survive the payment of the
Guaranteed Indebtedness.
16. Severability. If any provision of this Guaranty is held by a court
of competent jurisdiction to be illegal, invalid or unenforceable under present
or future laws, such provision shall be fully severable, shall not impair or
invalidate the remainder of this Guaranty and the effect thereof shall be
confined to the provision held to be illegal, invalid or unenforceable.
17. No Obligation. Nothing contained herein shall be construed as an
obligation on the part of Agent or the Lenders to extend or continue to extend
credit to Borrower.
18. Amendment. No modification or amendment of any provision of this
Guaranty, nor consent to any departure by Guarantor therefrom, shall be
effective unless the same shall be in writing and signed by an officer of Agent,
and then shall be effective only in the specific instance and for the purpose
for which given.
19. Cumulative Rights. All rights and remedies of Agent and the
Lenders hereunder are cumulative of each other and of every other right or
remedy which Agent and the Lenders may otherwise have at law or in equity or
under any instrument or agreement, and the exercise of one or more of such
rights or remedies shall not prejudice or impair the concurrent or subsequent
exercise of any other rights or remedies.
20. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAWS.
21. VENUE. THIS GUARANTY HAS BEEN ENTERED INTO IN THE COUNTY IN TEXAS
WHERE AGENT'S ADDRESS FOR NOTICE PURPOSES IS LOCATED, AND IT SHALL BE
PERFORMABLE FOR ALL PURPOSES IN SUCH COUNTY. COURTS WITHIN THE STATE OF TEXAS
SHALL HAVE JURISDICTION OVER ANY AND ALL DISPUTES ARISING UNDER OR PERTAINING TO
THIS GUARANTY AND VENUE FOR ANY SUCH DISPUTES SHALL BE IN THE COUNTY OR JUDICIAL
DISTRICT WHERE THE AGENT'S ADDRESS FOR NOTICE PURPOSES IS LOCATED.
22. Compliance with Applicable Usury Laws. Notwithstanding any other
provision of this Guaranty or of any instrument or agreement evidencing,
governing or securing all or any part of the Guaranteed Indebtedness, Guarantor
and Agent by its acceptance hereof agree that Guarantor shall never be required
or obligated to pay interest in excess of the maximum nonusurious interest rate
as may be authorized by applicable law for the written contracts which
constitute the Guaranteed Indebtedness. It is the intention of Guarantor, Agent
and the Lenders
GUARANTY - PAGE 11
12
to conform strictly to the applicable laws which limit interest rates, and any
of the aforesaid contracts for interest, if and to the extent payable by
Guarantor, shall be held to be subject to reduction to the maximum nonusurious
interest rate allowed under said law.
23. JURY WAIVER. THE GUARANTOR, AGENT AND THE LENDERS HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT
OR OTHERWISE) BETWEEN OR AMONG THE PARTIES HERETO ARISING OUT OF OR IN ANY WAY
RELATED TO THIS GUARANTY OR ANY OF THE LOAN DOCUMENTS. THIS PROVISION IS A
MATERIAL INDUCEMENT TO AGENT AND THE LENDERS TO PROVIDE THE LOAN DESCRIBED
HEREIN OR IN THE OTHER LOAN DOCUMENTS.
24. Descriptive Headings. The headings in this Guaranty are for
convenience only and shall not define or limit the provisions hereof.
25. Gender. Within this Guaranty, words of any gender shall be held
and construed to include the other gender.
26. Entire Agreement. This Guaranty contains the entire agreement
between Guarantor, Agent and the Lenders regarding the subject matter hereof and
supersedes all prior written and oral agreements and understandings, if any,
regarding same; provided, however, this Guaranty is in addition to and does not
replace, cancel, modify or affect any other guaranty of Guarantor now or
hereafter held by Agent and/or the Lenders that relates to Borrower or any other
person or entity, including without limitation, the Other Guaranty.
GUARANTY - PAGE 12
13
EXECUTED as of the date first above written.
NEW PLAN EXCEL REALTY TRUST, INC., a
Maryland corporation
By: /s/ XXXX XXXXXXXXX
-------------------------------------------
Name: XXXX XXXXXXXXX
----------------------------------
Title: SVP
---------------------------------
STATE OF NEW YORK Section
Section
COUNTY OF NEW YORK Section
This instrument was acknowledged before me on the 5th day of April, 2000,
by Xxxx Xxxxxxxx, Xx.V.P. of New Plan Excel Realty Trust, Inc., a Maryland
corporation, on behalf of said corporation.
/s/ XXXXXX XXXXXX
----------------------------------------------
Notary Public, State of New York
XXXXXX XXXXXX
----------------------------------------------
Printed Name of Notary:
My Commission Expires:
10/31/01
---------------------
GUARANTY - PAGE 13
