RECOURSE LIABILITIES GUARANTY
Exhibit
10.6
Loan
No. ________ and _______
Dated as
of January 15, 2010
FOR VALUE RECEIVED, the
receipt and sufficiency of which is hereby acknowledged, and in accordance with
the terms provided below, the undersigned, XXXX-XXXX REALTY CORPORATION,
a Maryland corporation, and XXXX-XXXX REALTY, L.P., a
Delaware limited partnership (whether one or more, hereinafter together called
“Guarantor” in the
singular), absolutely and unconditionally guarantees and agrees to pay to THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation (“Prudential”), and VPCM, LLC, a Virginia limited
liability company (“VPCM”) (collectively hereinafter called “Lender”) at the address
designated in the Note (as hereinafter defined) for payment thereof or as such
address may be changed as provided in the Note or the Instrument, all Recourse
Liabilities (defined below) of __________________
(hereinafter called “Borrower”), under Paragraphs 8
and 9 of the Note (defined below) (all such indebtedness is hereinafter called
the “Recourse
Liabilities”), and absolutely and unconditionally covenants and agrees
with Lender pursuant to the terms of this Recourse Liabilities Guaranty
(hereinafter called “Guaranty”), as
follows:
1. As
used in this Guaranty, the term (i) “Documents” shall have the same
meaning as set forth in the Instrument (defined below); (ii) “Obligations” shall have the
same meaning as set forth in the Instrument; (iii) “Note” shall refer,
collectively, to that certain Amended, Restated and Consolidated Promissory Note
in favor of Prudential in the original principal amount of _____________
($_________) and that certain Amended, Restated and Consolidated Promissory Note
in favor of VPCM in the original principal amount of _____________ ($_________),
each made by Borrower of even date herewith, in the aggregate original principal
amount of _____________ ($_________), as the same may be modified, amended,
renewed, extended, and/or substituted, which Note is secured by the Instrument
(as hereinafter defined); (iv) “Instrument” shall refer to
that certain Amended, Restated and Consolidated Mortgage and Security Agreement
of even date herewith, from Borrower to or for the benefit of Lender, and
recorded or to be recorded in the public records of __________; (v) “Property” shall have the same
meaning as set forth in the Instrument; (vi) “Loan” shall have the same
meaning as set forth in the Instrument; (vii) “Costs” shall have the same
meaning as set forth in the Instrument; and (viii) “Recourse Liabilities” shall
mean all limited and full recourse indebtedness of Borrower under Paragraphs 8
and 9 of the Note (it being noted that, as set forth in Subparagraph 8(b)
and Subparagraph 8(f) of each Note, Subparagraph 8(b) and
Subparagraph 8(f) are subject to Section 4(b) of that certain Cash
Management Agreement between Borrower and Lender of even date
herewith). Capitalized terms used herein and not defined herein shall
have the meaning ascribed to such terms in the Instrument.
2. Without
in any way limiting the liability of Guarantor under that certain Environmental
and ERISA Indemnity Agreement made by Guarantor and Borrower in favor of Lender
of even date herewith (the “Environmental Indemnity”), in
the event Borrower fails to pay the Recourse Liabilities when due, Guarantor
shall upon written demand of Lender promptly (not later than five (5) days after
written demand) and with due diligence pay to and for the benefit of Lender all
of the Recourse Liabilities, and, in addition, Guarantor further agrees to pay
any and all Costs incurred or expended by Lender in collecting any of the
Recourse Liabilities or in enforcing any right granted hereunder.
3. Guarantor’s
liability under this Guaranty shall be fully recourse and the Recourse
Liabilities are expressly not subject to, or limited by, any limitations on
Borrower’s liability set forth in the Note, and Guarantor agrees and
acknowledges that Lender is relying upon the full recourse nature of this
Guaranty in making the Loan to Borrower. Further, the scope of this
Guaranty shall in no way affect or limit any liability of Guarantor in its
capacity as an “Indemnitor” under the Environmental Indemnity.
4. In
the event that Lender elects to foreclose or to accept a deed-in-lieu of
foreclosure under the Instrument, Guarantor hereby acknowledges and agrees that
Guarantor’s recourse liability under this Guaranty as determined above shall be
calculated after deduction from the outstanding Obligations (including, but not
limited to, all principal, accrued interest, Prepayment Premium [as defined in
the Note], advances and other charges) of (i) the amount of money bid by or
received by Lender at a foreclosure sale, or (ii) the value of the Property
and any other property received by Lender as consideration for acceptance of a
deed-in-lieu of foreclosure.
5. In
the event that Lender accepts a deed-in-lieu of foreclosure, the value of the
Property and any other property received by Lender shall be conclusively
determined by an independent MAI appraiser, selected by Lender in its sole
discretion, having not less than five (5) years’ experience in appraising
commercial real estate in the area where the Land is located, unless in
connection with such acceptance of such deed-in-lieu of foreclosure Lender
agrees to an alternate valuation. The fees and costs of said MAI
appraiser shall be paid by Borrower.
6. Guarantor’s
recourse liability under this Guaranty shall continue with respect to any and
all Recourse Liabilities, until Lender has been paid the full amount of the
Obligations and the Recourse Liabilities from any person or
entity at the time of foreclosure or following an Event of Default; provided,
however, that Guarantor’s recourse liability under this Guaranty shall be in
addition to, and not in lieu of, any liability or obligations of Guarantor under
any other document or other instrument delivered by Guarantor in connection with
the Loan.
7. Guarantor
also acknowledges and agrees that Lender shall have the right to seek collection
of the recourse portion of the Loan under this Guaranty from Guarantor without
commencement of any foreclosure proceedings.
8. Guarantor
expressly waives presentment for payment, demand, notice of demand and of
dishonor and nonpayment of the Recourse Liabilities, notice of intention to
accelerate the maturity of the Recourse Liabilities or any part thereof, notice
of disposition of collateral, notice of acceleration of the maturity of the
Recourse Liabilities or any part thereof, protest and notice of protest,
diligence in collecting, and the bringing of suit against any other
party. Guarantor agrees that Lender shall be under no obligation to:
(i) notify Guarantor of its acceptance of this Guaranty or of any advances
made or credit extended on the faith of this Guaranty; (ii) notify
Guarantor of Borrower’ s failure to make payments due under the Note as it
matures or the failure of Borrower to pay any of the Recourse Liabilities as
they mature or any default in performance of any obligations required by the
Note, the Instrument or any other Document; (iii) use diligence in
preserving the liability of any person with respect to the Recourse Liabilities,
or with respect to the Note, the Instrument or any other Document; (iv) use
diligence in collecting payments or demanding performance required by the terms
of the Note, the Instrument or any other Document; or (v) bring suit
against, or take any other action against, any party to enforce collection of
the Note, the Instrument or any other Document.
9. Guarantor
waives all legal defenses (at law or in equity) given or available to sureties
or guarantors other than the actual payment in full of all Recourse Liabilities,
and waives all legal defenses (at law or in equity) based upon the validity,
legality or enforceability of the Note, the Instrument or any other Document
(including, without limitation, any claim that the Note, the Instrument or any
other Document is or was in any way usurious), or otherwise with respect to the
following actions with respect to the Recourse Liabilities or Obligations, as to
which Guarantor consents that Lender may from time to time, before or after any
default by the Borrower, with or without further notice to or assent from
Guarantor:
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(a)
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exchange
with, release or surrender, either with or without consideration, to the
Borrower or to any Guarantor, pledgor or grantor any collateral, or waive,
release or subordinate any security interest, in whole or in part, now or
hereafter held as security for the Loan and/or any of the
Obligations;
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(b)
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waive
or delay the exercise of any of its rights or remedies against any person
or entity, including but not limited to the Borrower and/or any guarantor,
which waiver or delay shall not preclude the Lender from further exercise
of any of its rights, powers or privileges expressly provided for herein
or otherwise available, it being understood that all such rights and
remedies are cumulative;
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(c)
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release,
either fully or partially, any person or entity, including but not limited
to the Borrower, guarantor, endorser, surety or any judgment
debtor;
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(d)
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proceed
against the Guarantor for payment of the Recourse Liabilities, without
first proceeding against or joining the Borrower, any other guarantor,
surety, endorser of the Note, or any property securing payment of the
Note, the Instrument, or any other Loan
Documents;
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(e)
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renew,
extend or modify the terms of the Loan or any instrument or agreement
evidencing the Loan and/or any of the
Obligations;
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(f)
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apply
payments by the Borrower, the Guarantor, or any other person or entity to
the reduction of the Loan and/or Obligations in such manner and in such
amounts and at such time or times and in such order and priority as Lender
shall determine;
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(g)
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permit
any sale, transfer or encumbrance of the Property or any part thereof;
and
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(h)
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generally
deal with the Borrower or any of the security or other person or party as
the Lender shall determine.
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The
Guarantor hereby ratifies and confirms any such exchange, release, surrender,
subordination, waiver, delay, proceeding, renewal, extension, modification or
application, or other dealing, all of which actions shall be binding upon
Guarantor who hereby waives all defenses, counterclaims or set-offs which
Guarantor might otherwise have as a result of such actions, and who hereby
agrees to remain bound under this Guaranty. In accordance with the
terms of this Guaranty, Guarantor agrees and acknowledges that it shall be
primarily liable for payment of the Recourse Liabilities (subject only to the
limitations set forth above) in the event of default or
foreclosure.
10. Guarantor
acknowledges and agrees that from time to time, at Lender’s discretion, with or
without valuable consideration, without authorization from or notice to
Guarantor, and without impairing, modifying, releasing, limiting or otherwise
affecting Guarantor ’s liability under this Guaranty, Lender may:
(i) alter, compromise, accelerate, renew, extend or change the time or
manner for the payment of any or all of the Obligations due under the Note, the
Instrument or any other Document (including, but not limited to, with respect to
any Recourse Liabilities); (ii) increase or reduce the rate of interest
with respect to the Note or Loan; (iii) take and surrender security,
exchange security by way of substitution, or in any way Lender deems necessary
take, accept, withdraw, subordinate, alter, amend, modify or eliminate security;
(iv) add or release or discharge endorsers, guarantors or other obligors;
(v) make changes of any kind whatsoever in the terms of the Note, the
Instrument or any other Document; (vi) make changes of any kind whatsoever
in the manner Lender does business with Borrower; (vii) settle or
compromise with Borrower or any other person(s) liable on the Note, the
Instrument or any other Document (including, but not limited to, any person(s)
liable with respect to any Recourse Liabilities) on such terms as Lender
determines; (viii) apply all moneys received from Borrower or others, or
from any security held (whether or not held under a mortgage, deed of trust,
deed to secure debt or other instrument), in such manner upon the Note or upon
any other obligation arising under the Instrument or any other Document (whether
then due or not) as Lender determines to be in its best interest (including, but
not limited to, application with respect to any Recourse Liabilities), and
without in any way being required to marshal securities or assets or to apply
all or any part of such moneys upon any particular part of the Note, the
Instrument or any other Document, except to the extent as may be expressly
provided therein.
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11. Guarantor
agrees that Lender is not required to retain, hold, protect, exercise due care
with respect to, perfect security interests in, or otherwise assure or safeguard
any security for the Note or the Loan. Guarantor agrees and
acknowledges that Lender’s failure to do any of the foregoing and Lender’s
failure to exercise any other right or remedy available to Lender shall in no
way affect or alter any of Guarantor’s obligations under this Guaranty or any
security furnished by Guarantor, or give Guarantor any recourse against
Lender.
12. Guarantor
agrees that its liability under this Guaranty shall not be modified, changed,
released, limited or impaired in any manner whatsoever on account of any or all
of the following: (i) the incapacity, death, disability, dissolution or
termination of Guarantor, Borrower, Lender or any other person or entity;
(ii) the failure by Lender to file or enforce a claim against the estate
(either in administration, bankruptcy or other proceeding) of Borrower or any
other person or entity; (iii) the inability of Lender, Guarantor or any
other person or entity to recover from Borrower or any other party due to the
expiration of any statute of limitations or due to any other cause whatsoever;
(iv) the claim or assertion (whether or not successful) by Borrower or any
other person or entity of any available defenses, set-off rights or
counterclaims (other than payment in full of the Obligations) during any
judicial, arbitration, or mediation proceeding; (v) the transfer(s) of any
portion of the Property encumbered by the Instrument or of any other secured
collateral by other instrument securing payment of the Obligations;
(vi) any modifications, extensions, amendments, consents, releases or
waivers with respect to the Note, the Instrument or any other Document,
including, but not limited to, any other instrument that may now or hereafter
secure the payment of the Obligations or this Guaranty; (vii) Lender’s
failure to give any notice to Guarantor of any default under the Note, the
Instrument or any other Document, including, but not limited to, any other
instrument securing the payment of the Obligations or this Guaranty;
(viii) Guarantor is or becomes liable for any indebtedness owed by Borrower
to Lender other than that which is secured by this Guaranty; or (ix) any
impairment, modification, change, release or limitation of the liability of, or
stay of actions or lien enforcement proceedings against, Borrower, its property,
or its estate in bankruptcy resulting from the operation of any present or
future provision of 11 U.S.C. §101 et. seq. or any other present
or future federal or state insolvency, bankruptcy or similar law (all of the
foregoing hereinafter collectively called “Applicable Bankruptcy Law”) or
from the decision of any court.
13. Guarantor
agrees and acknowledges that Lender shall not be required to (i) pursue any
other remedies before invoking the benefits of the guaranties contained in this
Guaranty, or (ii) make demand upon or institute suit or otherwise pursue or
exhaust its remedies against Borrower or any surety other than Guarantor or to
proceed against any security now or hereafter existing for the payment of any of
the Obligations (including, but not limited to, the Recourse
Liabilities). Guarantor also acknowledges that Lender may maintain an
action on this Guaranty without joining Borrower in such action and without
bringing a separate action against Borrower.
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14. If
the Note, the Instrument or any other Document cannot be enforced against
Borrower for any reason whatsoever (including but not limited to the legal
defenses of ultra
xxxxx, lack of authority, illegality, force majeure, act of God,
usury or impossibility), such unenforceability shall not affect Guarantor’s
liability under this Guaranty. Guarantor agrees that it shall be
liable to the extent provided in this Guaranty notwithstanding the fact that
Borrower may be held not to be liable for such Obligations or not liable to the
same extent as Guarantor’s liability.
15. Guarantor
agrees that in the event that Borrower does not or otherwise is unable to pay
the Obligations for any reason (including, without limitation, liquidation,
dissolution, receivership, conservatorship, insolvency, bankruptcy, assignment
for the benefit of creditors, sale of all or substantially all assets,
reorganization, arrangement, composition, or readjustment of, or other similar
proceedings affecting the status, composition, identity, existence, assets or
obligations of Borrower, or the disaffirmance or termination of any of the
Recourse Liabilities or Obligations in or as a result of any such proceeding),
Guarantor shall pay the Recourse Liabilities and such occurrence shall in no way
affect Guarantor’s obligations under this Guaranty.
16. Should
the status, structure or composition of Borrower change, Guarantor agrees that
this Guaranty shall continue and shall also cover the Recourse Liabilities of
Borrower under the new status, structure or composition of Borrower, or of
Borrower’s successor. This Guaranty shall remain in full force and
effect notwithstanding any transfer of the Property encumbered by the
Instrument.
17. In
the event any payment by Borrower to Lender is held to constitute a preference
under any Applicable Bankruptcy Law, or if for any other reason Lender is
required to refund or does refund such payment or pay such amount to any other
party, Guarantor acknowledges that such payment by Borrower to Lender shall not
constitute a release of Guarantor from any liability under this Guaranty, but
Guarantor agrees to pay such amount to Lender upon demand and this Guaranty
shall continue to be effective or shall be reinstated, as the case may be, to
the extent of any such payment or payments.
18. Guarantor
agrees that it shall not have (i) the right to the benefit of, or to direct
the application of, any security held by Lender (including the Property covered,
conveyed or encumbered by the Instrument and any other instrument securing the
payment of the Obligations), (ii) any right to enforce any remedy which
Lender now has or hereafter may have against Borrower, or (iii) any right
to participate in any security now or hereafter held by Lender.
19. Guarantor
also agrees that it shall not have (i) any defense arising out of the
absence, impairment or loss of any right of reimbursement or subrogation or
other right or remedy of Guarantor against Borrower or against any security
resulting from the exercise or election of any remedies by Lender (including the
exercise of the power of sale under the Instrument), or (ii) any defense
arising by reason of any disability or other defense of Borrower or by reason of
the cessation, from any cause (other than as a result of payment in full of the
Obligations, including, but not limited to, the Recourse Liabilities), of
Borrower’s liability under the Note, the Instrument or any other
Document.
20. Guarantor
agrees that any payment it makes of any amount pursuant to this Guaranty shall
not in any way entitle Guarantor to any right, title or interest (whether by way
of subrogation or otherwise) in and to the Note, the Instrument or any other
Document, or any proceeds attributable to the Note, the Instrument or any other
Document, unless and until the full amount of the Obligations owing to Lender
has been fully paid. At such time as the full amount of the
Obligations owing to Lender has been fully paid, Guarantor shall be subrogated
as to any payments made by it to Lender’s rights against Borrower and/or any
endorsers, sureties or other guarantors. For the purposes of the
preceding sentence only, the full amount of the Obligations shall not be deemed
to have been paid in full by foreclosure of the Instrument or by acceptance of a
deed-in-lieu of foreclosure, and Guarantor hereby waives and disclaims any
interest which it might have in the Property encumbered by the Instrument or
other collateral security for the Obligations, by subrogation or otherwise,
following such foreclosure or Lender’s acceptance of a deed-in-lieu of
foreclosure.
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21. Guarantor
expressly subordinates its rights to payment of any indebtedness owing from
Borrower to Guarantor (including, but not limited to, property management and
construction management fees and leasing commissions, subject, however, to any
rights under those certain Conditional Assignments of Management Agreement and
Subordination of Management Agreement and Management Fees), whether now existing
or arising at any time in the future, to the right of Lender to first receive or
require payment of the Obligations in full (and including interest accruing on
the Note after any petition under Applicable Bankruptcy Law, which post-petition
interest Guarantor agrees shall remain a claim that is prior and superior to any
claim of Guarantor notwithstanding any contrary practice, custom or ruling in
proceedings under such Applicable Bankruptcy Law). Guarantor further
agrees, upon the occurrence of an Event of Default (subject, however, to any
rights under those certain Conditional Assignments of Management Agreement and
Subordination of Management Agreement and Management Fees), not to accept any
payment or satisfaction of any kind of indebtedness of Borrower to Guarantor or
any security for such indebtedness without Lender’s prior written
consent. If Guarantor should receive any such payment, satisfaction
or security for any indebtedness owed by Borrower to Guarantor, Guarantor agrees
to deliver the same without delay to Lender in the form received, endorsed or
assigned for application on account of, or as security for, the Recourse
Liability; until such payment, satisfaction or security is delivered, Guarantor
agrees to hold the same in trust for Lender.
22. Under
no circumstances shall the aggregate amount paid or agreed to be paid under this
Guaranty exceed the highest lawful rate permitted under applicable usury law
(the “Maximum Rate”) and
the payment obligations of Guarantor hereunder are hereby limited
accordingly. If under any circumstances, whether by reason of
advancement or acceleration of the unpaid principal balance of the Note or
otherwise, the aggregate amounts paid hereunder shall include amounts which by
law are deemed interest and which could exceed the Maximum Rate, Guarantor
stipulates that payment and collection of such excess amounts shall have been
and will be deemed to have been the result of a mistake on the part of both
Guarantor and Lender, and Lender shall promptly credit such excess (only to the
extent such interest payments are in excess of the Maximum Rate) against the
unpaid principal balance of the Note, and any portion of such excess payments
not capable of being so credited shall be refunded to Guarantor. The
term “applicable law” as
used in this paragraph shall mean the laws of the Property State (as such term
is defined in the Instrument) or the laws of the United States, whichever laws
allow the greater rate of interest, as such laws now exist or may be changed or
amended or come into effect in the future.
23. Guarantor
hereby represents, warrants and covenants to and with Lender as follows:
(i) the making of the Loan by Lender to Borrower is and will be of direct
interest, benefit and advantage to Guarantor; (ii) Guarantor is solvent, is
not bankrupt and has no outstanding liens, garnishments, bankruptcies or court
actions which could render Guarantor insolvent or bankrupt; (iii) there has
not been filed by or against Guarantor a petition in bankruptcy or a petition or
answer seeking an assignment for the benefit of creditors, the appointment of a
receiver, trustee, custodian or liquidator with respect to Guarantor or any
substantial portion of Guarantor’s property, reorganization, arrangement,
rearrangement, composition, extension, liquidation or dissolution or similar
relief under Applicable Bankruptcy Law; (iv) all reports, financial
statements and other financial and other data which have been or may hereafter
be furnished by Guarantor to Lender in connection with this Guaranty are or
shall be true and correct in all material respects and do not and will not omit
to state any fact or circumstance necessary to make the statements contained
therein not misleading and do or shall fairly represent the financial condition
of Guarantor as of the dates and the results of Guarantor’s operations for the
periods for which the same are furnished, and no material adverse change has
occurred since the dates of such reports, statements and other data in the
financial condition of Guarantor; (v) the execution, delivery and
performance of this Guaranty do not contravene, result in the breach of or
constitute a default under any mortgage, deed of trust, lease, promissory note,
loan agreement or other contract or agreement to which Guarantor is a party or
by which Guarantor or any of its properties may be bound or affected and do not
violate or contravene any law, order, decree, rule or regulation to which
Guarantor is subject; (vi) there are no judicial or administrative actions,
suits or proceedings pending or, to the best of Guarantor’s knowledge,
threatened against or affecting Guarantor which would have a material adverse
effect on either the Property or Borrower’s ability to perform its obligations,
or involving the validity, enforceability or priority of this Guaranty; and
(vii) this Guaranty constitutes the legal, valid and binding obligation of
Guarantor enforceable in accordance with its terms.
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24. Guarantor
will furnish to Lender the financial statements and other information as to
Guarantor as are described in Section 3.15 of the Instrument, on or before
the deadlines set forth therein. Guarantor will provide to Lender
such other financial information and statements concerning Guarantor's financial
status as Lender may request from time to time, all of which shall be in form
and substance acceptable to Lender. Guarantor shall be in default
hereunder if there is any falsity in any material respect or any material
omission in any representation or statement made by Guarantor to Lender or in
any information furnished Lender, by or on behalf of Borrower or Guarantor, in
connection with the Loan and/or any of the Obligations, as determined by Lender
in its sole and absolute discretion.
25. Guarantor
further agrees to the following:
(a) Where
two or more persons or entities have executed this Guaranty, unless the context
clearly indicates otherwise, all references herein to “Guarantor” shall mean the
guarantors hereunder or either or any of them. All of the obligations
and liability of said guarantors hereunder shall be joint and
several. Suit may be brought against said guarantors, jointly and
severally, or against any one or more of them, or less than all of them, without
impairing the rights of Lender against the other or others of said
guarantors. Lender may compound with any one or more of said
guarantors for such sums or sum as it may see fit and/or release such of said
guarantors from all further liability to Lender for such indebtedness without
impairing the right of Lender to demand and collect the balance of such
indebtedness from the other or others of said guarantors not so compounded with
or released. However, said guarantors agree that such compounding and
release shall in no way impair the their rights as among
themselves.
(b) Except
as otherwise provided herein, the rights of Lender are cumulative and shall not
be exhausted by its exercise of any of its rights under this Guaranty or
otherwise against Guarantor or by any number of successive actions, until and
unless all Recourse Liabilities have been paid and each of the obligations of
Guarantor under this Guaranty have been performed.
(c) Intentionally
Omitted.
(d) Any
notice or communication required or permitted under this Guaranty shall be given
in writing, sent by (i) personal delivery, or (ii) expedited delivery
service with proof of delivery, or (iii) United States mail, postage
prepaid, registered or certified mail, sent to the intended addressee at the
address shown below, or to such other address or to the attention of such other
person(s) as hereafter shall be designated in writing by the applicable party
sent in accordance herewith. Any such notice or communication shall
be deemed to have been given and received either at the time of personal
delivery or, in the case of delivery service or mail, as of the date of first
attempted delivery on a business day at the applicable address and in the manner
provided herein.
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(e) This
Guaranty shall be deemed to have been made under and shall be governed in all
respects by the laws of the Property State.
(f) This
Guaranty may be executed in any number of counterparts with the same effect as
if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one instrument,
but in making proof hereof it shall only be necessary to produce one such
counterpart.
(g) This
Guaranty may only be modified, waived, altered or amended by a written
instrument or instruments executed by the party against which enforcement of
said action is asserted. Any alleged modification, waiver, alteration
or amendment which is not so documented shall not be effective as to any
party.
(h) The
books and records of Lender showing the accounts between Lender and Borrower
shall be admissible in any action or proceeding arising from this Guaranty as
prima facie evidence
for any claim whatsoever, absent manifest error.
(i) Guarantor
waives and renounces any and all homestead or exemption rights Guarantor may
have under the United States Constitution, the laws of the Property State, or
the laws of any state as against Guarantor, and Guarantor transfers, conveys and
assigns to Lender a sufficient amount of such homestead or exemption as may be
allowed, including such homestead or exemption as may be set apart in
bankruptcy, to pay and perform the obligations of Guarantor arising under this
Guaranty. Guarantor hereby directs any trustee in bankruptcy having
possession of such homestead or exemption to deliver to Lender a sufficient
amount of property or money set apart as exempt to pay and perform such
Guarantor obligations.
(j) The
terms, provisions, covenants and conditions of this Guaranty shall be binding
upon Guarantor, its heirs, devisees, representatives, successors and assigns,
and shall inure to the benefit of Lender and Lender’s transferees, credit
participants, successors, assigns and/or endorsees.
(k) Within
this Guaranty, the words of any gender shall be held and construed to include
any other gender, and the words in the singular number shall be held and
construed to include the plural and the words in the plural number shall be held
and construed to include the singular, unless the context otherwise
requires.
(l) A
determination that any provision of this Guaranty is unenforceable or invalid
shall not affect the enforceability or validity of any other provision, and any
determination that the application of any provision of this Guaranty to any
person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to any other
persons or circumstances. Accordingly, the provisions of this
Guaranty are declared to be severable.
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THIS GUARANTY is executed as of the
date and year first above written.
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GUARANTOR:
XXXX-XXXX REALTY, L.P.,
a Delaware limited partnership
By:XXXX-XXXX
REALTY CORPORATION, a Maryland corporation, General Partner
By: _____________________
Name: Xxxxx
Xxxxxxxxx
Title: Executive
Vice President and Chief Financial Officer
XXXX-XXXX REALTY
CORPORATION, a Maryland
corporation
By: _________________________
Name: Xxxxx
Xxxxxxxxx
Title: Executive Vice
President and Chief Financial Officer
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The
address of Guarantor is:
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Xxxx-Xxxx
Realty Corporation and Xxxx-Xxxx Realty,
L.P.
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c/o Xxxx-Xxxx
Realty Corporation
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000 Xxxxxxxx
Xxxxxx
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Xxxxxx,
Xxx Xxxxxx 00000
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Attn: Xxxxxxxx X. Xxxxx, President and Chief Executive Officer |
With a copy to:
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General
Counsel
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Xxxx-Xxxx
Realty Corporation
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000 Xxxxxxxx
Xx.
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Xxxxxx,
Xxx Xxxxxx 00000
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Attention: Xxxxx
X. Xxxxxx
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The
address of Lender is:
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THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA AND VPCM,
LLC
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c/o Prudential
Asset Resources, Inc.
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0000 Xxxx
Xxxxxx, Xxxxx 0000
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Xxxxxx,
Xxxxx 00000
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Attention: Asset
Management Department; Reference Loan No. _______ and
__________
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-9-
With a copy to:
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THE
PRUDENTIAL INSURANCE COMPANY OF
AMERICA
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c/o Prudential
Asset Resources, Inc.
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0000 Xxxx
Xxxxxx, Xxxxx 0000
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Xxxxxx,
Xxxxx 00000
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Attention: Legal
Department; Reference Loan No. ________ and
__________
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-10-
