GUARANTY OF LEASE
Exhibit
10.4
Guaranty of Lease, dated as of June 28,
2001, by Fluor Corporation, a Delaware corporation, herein, together with any
entity succeeding thereto by consolidation, merger or acquisition of its assets
substantially as an entirety, called "Guarantor".
Lakepointe Assets LLC, a Delaware
limited liability company (herein together with its successors and assigns as
owner of the property hereinafter described, called "Landlord"), is about to
acquire the land described on Schedule A hereto and the improvements located on
said land (collectively, the "Property") and to lease the Property to Fluor
Enterprises, Inc., a California corporation d/b/a Fluor Signature Services
("Tenant"), pursuant to a lease between Landlord and Tenant dated as of June 28,
2001 (the "Lease"). Landlord is unwilling to acquire the Property or enter into
the Lease unless the Guarantor enters into this agreement. Guarantor directly or
indirectly owns all the stock of Tenant. The acquisition by Landlord of the
Property and the lease of the Property to Tenant is of direct benefit to the
Guarantor. This Guaranty reasonably may be expected to benefit, directly or
indirectly, Guarantor. Capitalized terms not otherwise defined herein
shall have the meanings given them in the Lease.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Guarantor, intending to be legally bound, covenants
and agrees with Landlord as follows:
1. The
Guarantor unconditionally and irrevocably guarantees to Landlord that (a) all
Basic Rent, Additional Rent and all other sums stated in the Lease to be payable
by the Tenant, whether due by acceleration or otherwise, including reasonable
costs and expenses of collection (collectively, the "Monetary Obligations") will
be promptly paid in full when due, in accordance with the provisions thereof,
and (b) Tenant will perform and observe each and every covenant, agreement, term
and condition of Tenant in the Lease (the "Performance Obligations"). If for any
reason any Monetary Obligation shall not be paid promptly when due, Guarantor
shall, immediately upon demand, pay the same to Landlord with interest due
thereon as stated in the Lease. In addition to the foregoing, the Guarantor
hereby becomes surety to Landlord for the due and punctual payment and
performance of the Monetary Obligations and the Performance Obligations and the
Guarantor hereby waives all defenses of any nature that may be available to
Guarantor as a surety and guarantor or otherwise other than the defenses of
payment of the Monetary Obligations and performance of the Performance
Obligations.
2. Upon
the occurrence of an Event of Default under the Lease, Landlord may enforce this
Guaranty without first having recourse against Tenant or exhausting its rights
or remedies under the Lease; provided, that nothing herein shall prohibit
Landlord from exercising its rights against both Guarantor and Tenant
simultaneously. Specifically, but without limitation, Guarantor hereby waives
joinder of Tenant or any other obligor in any suit or action to enforce this
Guaranty, and without in any way limiting the foregoing, Guarantor hereby waives
any right (including, without limitation, each right created by the provisions
of Chapter 34 of the Texas Business & Commerce Code, Chapter 17 of the Texas
Civil Practice and Remedies Code, Rule 31 of the Texas Rules of Civil Procedure
or other applicable law) to require Landlord or any other party entitled to
enforce the obligations of Guarantor under this
Guaranty
to file suit against Tenant or any other obligor or take any other action
against Tenant or any other obligor as a prerequisite to Landlord's or such
other party's taking any action or bringing any suit against Guarantor under
this Guaranty. This Guaranty and the obligations of the Guarantor
hereunder are present, primary, direct, continuing, unconditional, irrevocable
and absolute and independent of any obligations of Tenant. This Guaranty
constitutes the agreement to pay money and to act in the first instance and is
not to be construed as a contract of indemnity or as a guaranty of
collectability.
3. The
obligations, covenants, agreements and duties of the Guarantor under this
Guaranty shall in no way be discharged, affected or impaired by any of the
following and Landlord may at any time and from time to time, with or without
consideration, without prejudice to any claim against Guarantor hereunder,
without in any way changing, releasing or discharging Guarantor from its
liabilities and obligations hereunder and without notice to or the consent of
Guarantor waive, release or consent to any of the following:
(a) the
waiver by Landlord of the performance or observance by Tenant of any of the
agreements, covenants, terms or conditions contained in the Lease;
(b) the
extension, in whole or in part, of the time for payment by Tenant of any sums
owing or payable under the Lease, or of any other sums or obligations of Tenant
under or arising out of or on account of the Lease, or the renewal or extension
of the Lease;
(c) any
sublease of any or all of the Property by Tenant to any other
person;
(d) any
assumption by any person of any or all of Tenant's obligations under, or
Tenant's assignment of any or all of its interest in the Lease;
(e) the
waiver or release or modification or amendment (whether material or otherwise)
of any provision of the Lease, and Guarantor hereby consents to any such
waivers, releases, modifications and amendments and to any future terms or
agreements heretofore or hereafter made by Landlord and Tenant in accordance
with the terms of the Lease, provided that Guarantor shall not be responsible
for any increase in the obligations of a tenant under the Lease resulting solely
from an amendment to the Lease made by a tenant which was not, at the time of
such amendment, an affiliate of Guarantor;
(f) any
failure, omission or delay on the part of Landlord to enforce, assert or
exercise any right, power or remedy conferred on or available to Landlord in or
by the Lease or this Guaranty, or any action on the part of Landlord granting
indulgence or extension in any form whatsoever;
(g) the
voluntary or involuntary liquidation, dissolution, sale of all or substantially
all of the assets, marshaling of assets and liabilities, receivership,
conservatorship, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization or other similar proceeding affecting Landlord, Tenant
or Guarantor or any of their assets or any impairment, modification, release or
limitation of liability of Landlord, Tenant or Guarantor or any of their estates
in bankruptcy or of any remedy for the enforcement of
such
liability resulting from the operation of any present or future provision of the
U.S. Bankruptcy Code or other similar statute or from the decision of any court;
(h)
the power or authority or lack thereof of Tenant to execute, acknowledge or
deliver the Lease;
(i) the
legality, validity or invalidity of the Lease;
(j) any
defenses whatsoever that Tenant may or might have to the payment of the Monetary
Obligations except for the payment thereof actually received by Landlord or at
Landlord's direction, by Lessor's Mortgagee, Guarantor acknowledging that the
Tenant has agreed to pay the Monetary Obligations under the Lease without
setoff;
(k) the
existence or non-existence of Tenant as a legal entity or the existence or
non-existence of any corporate or other business relationship between Tenant and
Guarantor;
(l) any
sale or assignment by Landlord of this Guaranty and/or the Lease (including any
assignment by Landlord to Lessor's Mortgagee;
(m) any
default by Guarantor under this Guaranty or any right of setoff or counterclaim
or defense (other than payment in full of the Monetary Obligations in accordance
with the terms of the Lease) that Guarantor may or might have to its respective
undertakings, liabilities and obligations hereunder, each and every such defense
being hereby waived by Guarantor; or
(n)
any other cause, whether similar or dissimilar to any of the foregoing, that
might constitute a legal or equitable discharge of Guarantor (whether or not
Guarantor shall have knowledge or notice thereof) other than payment in full of
the Monetary Obligations.
Without in any way limiting the
generality of the foregoing, Guarantor specifically agrees that if Tenant's
obligations under the Lease are modified or amended with the express written
consent of Landlord, this Guaranty shall extend to such obligations as so
amended or modified but shall not extend to any increase in the obligations of
Tenant under the Lease if such modification or amendment was made by a tenant
which was not, at the time of such modification or amendment, an Affiliate of
Guarantor and if Guarantor did not consent to such modification or
amendment.
4. Guarantor
hereby waives notice (other than any notice required by the terms of the Lease),
demand, presentment, protest and notice of protest.
5. Guarantor
agrees that, in the event of the rejection or disaffirmance of the Lease by
Tenant or Tenant's trustee in bankruptcy pursuant to bankruptcy law or any other
law affecting creditors rights, the Guarantor shall, if Landlord so requests,
assume all obligations and liabilities of Tenant under the Lease, to the same
extent as if the Guarantor was a party to such document and there had been no
such rejection or disaffirmance; and the Guarantor shall confirm such assumption
in writing at the request of Landlord upon or after such rejection or
disaffirmance. The Guarantor, upon such assumption, shall have all
rights of Tenant under the Lease (to the extent permitted by law). Guarantor
further agrees that, to the
extent
that Tenant or Guarantor makes a payment or payments to Landlord, which payment
or payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to Tenant or
Guarantor or their respective estates, trustees, receivers or any other party
under any bankruptcy law or any other law affecting creditors' rights, then to
the extent of such payment or repayment, this Guaranty and the advances or part
thereof which have been paid, reduced or satisfied by such amount shall be
reinstated and shall continue in full force and effect as of the date such
initial payment, reduction or satisfaction occurred.
6. The
following events following the expiration of the applicable cure periods, in
this Paragraph are sometimes referred to as an "Event of Default":
a. If
default shall be made in the payment of any sum required
to be
paid by Guarantor under this Guaranty;
b. If
default shall be made in the observance or performance of any of the other
covenants in this Guaranty (as opposed to obligations under the Lease which may
be imposed on Guarantor pursuant to this Guaranty) which the Guarantor is
required to observe and perform and such default shall continue for thirty (30)
days after written notice to the Guarantor;
c. If
any representation or warranty made by Guarantor herein or in any certificate,
demand or request proves to be incorrect in any material respect when made and
the representation or warranty continues to be incorrect for a period of thirty
(30) days after written notice from Landlord, or if the facts cannot be changed
so as to make the representation or warranty correct within such thirty day
period, Guarantor fails to provide Landlord with protection (including, by way
of example, additional collateral or letters of credit) against loss arising
from breach of such representation or warranty, such protection to be
satisfactory to Landlord in its sole discretion;
d. If
Guarantor files a petition of bankruptcy or for reorganization or for an
arrangement pursuant to the Bankruptcy Code, or is adjudicated a bankrupt or
becomes insolvent or makes an assignment for the benefit of its creditors, or
admits in writing its inability to pay its debts generally as they become due,
or is dissolved, or suspends payment of its obligations, or takes any corporate
action in furtherance of any of the foregoing; or
e. If
a petition or answer is filed proposing the adjudication of Guarantor as a
bankrupt, or its reorganization pursuant to the Bankruptcy Code, and (A)
Guarantor consents to the filing thereof, or (B) such petition or answer is not
discharged or denied within 90 days after the filing thereof;
f. If
a receiver, trustee or liquidator (or other similar official) is appointed for
or takes possession or charge of Guarantor, or if Guarantor consents to or
acquiesces in such appointment;
g. If
an Event of Default occurs and is continuing under the Lease;
or
h. If
an Event of Default occurs and is continuing under a Management
Agreement.
Upon the
occurrence of any such Event of Default, Landlord shall have whatever rights at
law or equity it might have to enforce this Guaranty.
7. Guarantor
agrees that any claim or claims or liens or security interests it may now have
or may in the future have against Tenant are or shall be subordinate to Tenant's
obligations to Landlord under the Lease. Guarantor waives all rights of
subrogation against Tenant for any amounts expended by Guarantor under this
Guaranty.
8. If
Landlord incurs any expenses in the enforcement of this Guaranty, including
reasonable attorneys' fees and disbursements, whether or not legal action be
instituted, the Guarantor shall pay the same immediately upon demand by Landlord
which shall be accompanied by evidence of such expenses and any amount due and
payable hereunder to Landlord which is not paid when due shall bear interest
from the due date thereof at the Overdue Rate.
9. Landlord
shall not by any act of omission or commission be deemed to waive any of its
rights or remedies hereunder unless such waiver be in writing and signed by
Landlord, and then only to the extent specifically set forth therein; a waiver
on one event shall not be construed as continuing or as a bar to or waiver of
such right or remedy on a subsequent event.
10.
Guarantor shall deliver to Landlord and Lessor's
Mortgagee:
(i) As
soon as practicable but in no event later than five (5) Business Days after the
date of filing with Securities and Exchange Commission or other Governmental
Authority, copies of all such financial statements, proxy statements, notices,
other communications, and reports as Guarantor shall send to its shareholders
and other information generally made available to banks and other lenders
(exclusive of proprietary information), provided that Guarantor need not make
such delivery so long as such financial information is posted on XXXXX,
Guarantor's Home Page or other electronic resource generally available to the
public without charge and Guarantor emails notice to Landlord and any Lessor's
Mortgagee (at email addresses supplied by such parties) of the availability of
such information within five (5) Business Days of its posting, and will provide
paper copies of such information upon request and, in any event, before such
information is removed from the above-named electronic resources;
(ii) For
any period that Guarantor is a public company, as soon as practicable, copies of
all regular, current or periodic reports (including reports on Form 10-K, Form
8-K and Form 10-Q) which Guarantor is or may be required to file with the
Securities and Exchange Commission or any Governmental Authority succeeding to
the functions of the Securities and Exchange Commission, provided that Guarantor
need not make such delivery so long as such financial information is posted on
XXXXX, Guarantor's Home Page or other electronic resource generally available to
the public without charge and Guarantor emails notice to Landlord and any
Lessor's Mortgagee (at email addresses supplied by such parties) of the
availability of such information within five (5) Business Days of its posting,
and will provide paper copies of such information upon request and, in any
event, before such information is removed from the above-named electronic
resources;
(iii) For
any period that Guarantor is not a public company required to file such reports
with the Securities and Exchange Commission then within 120 days after the end
of each fiscal year, and within 60 days after the end of any other fiscal
quarter, a consolidated statement of earnings, and a consolidated statement of
changes in financial position, a consolidated statement of stockholders' equity,
and a consolidated balance sheet of such entity as of the end of each such year
or fiscal quarter, setting forth in each case in comparative form the
corresponding consolidated figures from the preceding annual audit or
corresponding fiscal quarter in the prior fiscal year, as appropriate, all in
reasonable detail and satisfactory in scope to Landlord and Lessor's Mortgagee,
and certified as to the annual consolidated statements by independent public
accountants of recognized national standing selected by Guarantor, whose
certificate shall be based upon an examination conducted in accordance with
generally accepted auditing standards and the application of such tests as said
accountants deem necessary under the circumstances; and
(iv)
Within ninety (90) days of the end of each calendar year, an annual statement
setting forth the gross revenues derived by Lessee from the sublease of space in
the Leased Property and the Existing Leased Space, the operating expenses of the
Leased Property and the Existing Leased Space, capital improvement made to the
Leased Property and the Existing Leased Property, together with a projection of
such capital improvements for the next calendar year, such statement to be
certified as true and correct in all material respects by an Executive Officer
of Lessee.
Concurrently
with the delivery of annual financial statements pursuant to subparagraph (iii)
of this paragraph 10, Guarantor will deliver to Landlord and Lessor's Mortgagee
a certificate by an Executive Officer of Guarantor that to such officer's Actual
Knowledge based on reasonable inquiry, there exists no Default or Event of
Default under the Lease or if any such Default or Event of Default exists,
specifying the nature thereof, the period of existence thereof and what action
Guarantor proposes to take with respect thereto. In addition,
Guarantor agrees upon prior written request to meet with Landlord and its
mortgagee during normal business hours at mutually convenient times, from time
to time, to discuss the Lease and such information about Guarantor's business
and financial condition reasonably requested by Landlord.
Any
non-public information delivered to the Landlord pursuant to this paragraph 10,
or otherwise, shall be deemed to be confidential. Landlord may share the
information delivered pursuant to this paragraph 10 with Lessor's Mortgagee, the
Certificate Holders, potential mortgagees, potential transferees of the
Certificate Holders, rating agencies, servicers, potential purchasers of the
Leased Property or a beneficial interest therein and all other parties having a
legitimate business purpose for reviewing the same; provided, such parties agree
to hold any non-public information in confidence; and provided, further,
Landlord may disclose such non-public information to regulatory authorities and
in accordance with any judicial or governmental order, or if required by any
law, regulation or stock exchange rule.
Notwithstanding
anything to the contrary contained herein, Tenant and Guarantor shall not be
obligated to provide or disclose to Landlord, Lessor's Mortgagee, any
prospective purchaser or mortgagee, or any other Person, any information
relating to Tenant's or Guarantor's financial condition or operations which has
not already been publicly disclosed if Tenant or Guarantor
reasonably believes that providing or disclosing such information would require
a separate filing with the Securities and Exchanges
Commission.
11.
All communications herein provided for or made pursuant hereto shall be in
writing and shall be sent by (i) registered or certified mail, return receipt
requested, and the giving of such communication shall be deemed complete on the
third Business Day after the same is deposited in a United States Post Office
with postage charges prepaid, (ii) reputable overnight delivery service with
acknowledgment receipt returned, and the giving of such communication shall be
deemed complete on the immediately succeeding Business Day after the same is
timely deposited with such delivery service, or (iii) hand delivery by reputable
delivery service:
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To
Guarantor:
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Xxx
Xxxxxxxxxx Xxxxx
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Xxxxx
Xxxxx, XX 00000
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Attention:
Director of Corporate Real Estate
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With
a copy to:
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Xxx
Xxxxxxxxxx Xxxxx
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Xxxxx
Xxxxx, XX 00000
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Attention:
General Counsel
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To
Landlord:
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Lakepointe
Assets LLC
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0000
Xxx Xxxxxx Xxxxx, Xxxxx 0000
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Xxxxxxx,
Xxxxx 00000
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Attention:
J. Xxxxxxx Xxxxxxxxx
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With
a copy to:
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0000
Xxx Xxxxxx Xxxxx, Xxxxx 0000
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Xxxxxxx,
Xxxxx 00000
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Attention:
Xxxx Xxxxxxxx, Xx., Esq.
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With
a copy to:
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Day,
Xxxxx & Xxxxxx LLP
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000
Xxxxxxxx Xxxxxx
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Xxxxxx,
Xxxxxxxxxxxxx 00000
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Attention:
Xxxxx X. Xxxxxxxx, Esq.
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With
a copy to:
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Xxxx
Xxxxx Mortgage Capital Corporation
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000
Xxxxx Xxxxxx
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Xxxxxxxxx,
Xxxxxxxx 00000
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Attention:
W. Xxxx Xxxx
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Any notice, demand, request, approval
or consent given in accordance with the provisions of this paragraph 11 shall be
effective on the date of receipt or delivery or when proper delivery is refused
by the addressee.
12.
Notice of acceptance of this Guaranty by Landlord and notice of any obligations
or liabilities contracted or incurred by any Tenant under the Lease are hereby
waived by the Guarantor.
13. If
Landlord proposes to refinance any mortgage of the Property, Guarantor shall
permit Landlord and the proposed mortgagee, at their expense, to meet with
officers of Guarantor at Guarantor's offices and to discuss the Guarantor's
business and finances. On request of Landlord, Guarantor agrees to provide any
such prospective mortgagee the information to which Landlord is entitled
hereunder, provided that if any such information is not publicly available, such
nonpublic information shall be made available on a confidential basis
substantially equivalent to the basis set forth at the end of Section 10(a)
above. Guarantor agrees to execute, acknowledge and deliver, at Landlord's
expense, documents reasonably requested by the prospective mortgagee (such as a
consent to the financing (without encumbering Guarantor's or Tenant's assets), a
consent to assignment of lease and of this Guaranty, estoppel certificate, and a
subordination, non-disturbance and attornment agreement), customary for tenants
under leases such as the Lease and their guarantors to sign in connection with
mortgage loans to landlords, so long as such documents are in form then
customary among institutional lenders (provided the same do not materially and
adversely change Tenant's rights or obligations under the Lease and any related
documents or materially and adversely change Guarantor's rights and obligations
under this Guaranty).
14. This
Guaranty shall be governed by and construed in accordance with the laws of the
State of Texas, other than its doctrine regarding conflicts of laws. Guarantor
consents to jurisdiction of the courts of the State of Texas and of the Federal
courts situated in Texas, and consents to venue in Texas, and Guarantor waives
any right to stay, remove, or otherwise directly or indirectly interfere with
such action based on such jurisdiction. The Guarantor hereby waives any option
or objection that it may now or hereafter have to the laying of venue of any
action or proceeding arising under or relating to this Guaranty in any court
located in the State of Texas, waives the right to bring any form of declaratory
judgment action with respect to the subject matter hereof in any other
jurisdiction, and hereby further waives any claim that a court located in the
State of Texas is not a convenient forum for any such action or
proceeding.
15. This
Guaranty may not be modified or amended except by a written agreement duly
executed by Guarantor and Landlord and Landlord's first mortgagee from time to
time, if any. This Guaranty shall be binding upon the Guarantor and shall inure
to the benefit of Landlord and its successors and assigns as permitted
hereunder, including, without limitation, any mortgagee of Landlord's interest
in the Property. In the event any one or more of the provisions contained in
this Guaranty shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Guaranty, but this Guaranty shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein. As used herein the term "Tenant" includes its successors
and assigns with respect to the Lease.
16. The
rights of Landlord under this Guaranty may be assigned in whole or in part by
Landlord, its successors and assigns, whether directly or by way of a grant of a
security interest herein, without the consent of Guarantor.
17. Within
15 days after request by Landlord, Guarantor shall deliver a certificate
confirming that this Guaranty is in full force and effect and unamended (or, if
amended, specifying such amendment), and whether, to the knowledge of Guarantor
(without investigation other than inquiry of Tenant), any Event of Default
exists under the Lease or under this Guaranty.
18. Without
the prior written consent of Landlord (which may be granted or withheld in
Landlord's sole discretion), Guarantor will not, directly or indirectly,
consolidate with or merge into any corporation, association, partnership or
other business organization or permit any corporation, association, partnership
or other business organization to consolidate with or merge into it, or sell or
otherwise transfer all or substantially all of its properties and assets, or
acquire all or substantially all of the assets of any corporation, association,
partnership or other business organization or individual, unless (i) the
Guarantor shall be the entity surviving such consolidation, merger or other
action, or the surviving entity or transferee shall enter into an assumption
this Guaranty in form and substance reasonably satisfactory to Landlord
(together with an opinion of independent counsel in form and substance
reasonably satisfactory to Landlord and Lessor's Mortgagee relating to the due
authorization, execution, delivery and enforceability of such assumption); and
(ii) immediately prior to such action, no Event of Default shall have occurred
and be continuing.
[SIGNATURE
PAGE FOLLOWS]
IN WITNESS WHEREOF, the Guarantor has
caused this Guaranty to be executed and its corporate seals to be hereunto
affixed and attested by its officers thereunto duly authorized.
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Fluor
Corporation
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By:
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/s/
X.X. Xxxxxxx
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Name:
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X.X.
Xxxxxxx
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Title:
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Group
Executive
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