Exhibit 10 (xxx)
GUARANTY AGREEMENT
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THIS GUARANTY AGREEMENT (hereinafter referred to as this "Guaranty'), dated as
of July 30, 1997, is made by Overseas Partners Capital Corp., a Delaware
corporation ("OPCC"), and JMB Realty Corporation, a Delaware corporation
("JMB"), (hereinafter referred to collectively as "Guarantor"), in favor of
Metropolitan Life Insurance Company, as agent for the Holders (as defined in the
Notes, hereinafter defined) of the Notes, a New York corporation, whose address
is Xxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("MetLife").
WITNESSETH:
WHEREAS, OPCC and JMB are both members of Xxxxxx Place Associates, LLC (Xxxxxx
and its successors and permitted assigns being hereinafter referred to as
Xxxxxx"), a Delaware limited liability company, whose address is 000 Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, and JMB is the Managing General
Partner of Urban Investment and Development Co. ("UIDC"), an Illinois general
partnership, whose address is 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
(Xxxxxx and UIDC hereinafter referred to collectively as "Borrower"). Prior to
the date hereof, Metropolitan Life Insurance Company and Xxxxxx entered into a
mortgage loan commitment (hereinafter referred to as the " Commitment") with
respect to the making by Metropolitan Life Insurance Company of a mortgage loan
(hereinafter referred to as the "Loan") in the amount of One Hundred Ninety-Five
Million and 00/100 Dollars ($195,000,000.00) to Borrower, the terms, provisions,
covenants and conditions of which were set forth in that certain Mortgage Loan
Application, dated June 18, 1997, and accepted by Metropolitan Life Insurance
Company on July 23, 1997;
WHEREAS, the Loan is evidenced by that certain Class A Promissory Note
in the principal amount of $97,500,000.00, dated as of the date hereof, made by
Borrower and payable to the order of Metropolitan Life Insurance Company (the
"Class A Note") and that certain Class B Promissory Note in the principal amount
of $97,500,000.00, dated as of the date hereof, made by Borrower and payable to
the order of Metropolitan Life Insurance Company (the "Class B Note") (the Class
A Note and the Class B Note being hereinafter referred to collectively as the
"Notes"), and is secured by, among other things, that certain Leasehold
Mortgage, Security Agreement And Fixture Financing Statement (hereinafter
referred to as the "Mortgage"), dated as of the date hereof, made by Borrower
in favor of MetLife and intended to recorded with the Suffolk County Registry of
Deeds in the Commonwealth of Massachusetts, and which encumbers the Property (as
such term is defined in the Mortgage). The Notes, the Mortgage and the other
documents collateral, incidental or otherwise relating to the Loan are
hereinafter referred to herein as the "Loan Documents
WHEREAS, in order to induce MetLife to enter into the Commitment and
make the Loan to Borrower, as aforesaid, Borrower agreed that Guarantor would
execute and deliver this Guaranty to MetLife; and
WHEREAS, MetLife was so willing to enter into the Commitment and make
the Loan to Borrower, as aforesaid, on the condition that Guarantor execute and
deliver this Guaranty.
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NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and in order to induce Met]Life to make the Loan to
Borrower, as aforesaid, Guarantor hereby agrees for the benefit of MetLife, and
its successors and assigns, as follows:
1. Guarantor, as primary obligor and not merely as a surety, hereby
unconditionally and irrevocably guarantees to MetLife the punctual and complete
performance and observance by Xxxxxx of the Recourse Obligations (as hereinafter
defined). Guarantor further agrees to pay to MetLife the Collection Costs (as
hereinafter defined) with respect to the enforcement of any rights or remedies
against Guarantor under this Guaranty. For purposes hereof, the term "Recourse
Obligations" means the obligations of Xxxxxx arising in connection with the
matters set forth in clauses (i) to (v), inclusive, of Section 1. 17(b) of the
Mortgage and the obligations of Xxxxxx under that certain Unsecured Indemnity
Agreement of even date herewith from Xxxxxx to MetLife (the "Unsecured Indemnity
Agreement").
The intent and purpose of this document is to memorialize the
agreement of Guarantor to be primarily and personally liable on account of the
Recourse Obligations. For convenience of reference, however, the undersigned is
sometimes herein referred to as the "Guarantor" and the undertakings of the
undersigned set forth in this instrument utilize terminology applicable to
guaranties. Such usage shall not derogate from the intention of Guarantor to be
primarily and personally liable for the Recourse Obligations.
2. In the event that the Recourse Obligations are not fully and
punctually performed and observed in accordance with the terms and provisions of
the Loan Documents,
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then after the expiration of applicable notice and grace periods provided for in
the Loan Documents, (a) Guarantor shall cause the same to be performed and
observed; and (b) Guarantor shall pay all reasonable expenses incurred by
MetLife in enforcing its rights under this Guaranty, including, without
limitation, reasonable attorney's fees and disbursements and all other
reasonable expenses incurred by MetLife in any collection and/or other
proceeding relating thereto (all of the foregoing expenses being herein
collectively referred to as the "Collection Costs"). There shall be no
requirement that MetLife, in order to enforce such payment by Guarantor, first
institute suit or exhaust its remedies against Borrower or against any other
party which may be similarly liable, or to enforce any rights against any
collateral which shall have been given to secure such performance.
3. Notwithstanding any payment or payments made by Guarantor
hereunder, as long as any of the Recourse Obligations remain outstanding,
Guarantor shall not be entitled to be subrogated to any of the rights of MetLife
against Xxxxxx or any collateral security, guaranty or right of offset held by
MetLife for the performance of the Recourse Obligations by Xxxxxx, nor (as long
as any of the Recourse Obligations remain outstanding) shall Guarantor seek any
reimbursement from Xxxxxx in respect of payments made by Guarantor hereunder.
Guarantor hereby releases any rights that it may have to contribution or
indemnification from Xxxxxx as long as any of the Recourse Obligations remain
outstanding. In the event that Xxxxxx is now or shall hereafter become indebted
to Guarantor, the amount of such indebtedness and all interest thereon shall at
all times be subject and subordinate as to priority of lien, time of payment,
and in all other respects, to all sums at any time owing to MetLife hereunder or
under any of the Loan Documents, and, as long as any of the Recourse
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Obligations remain outstanding, Guarantor shall not assert any right of
enforcement or receive payment on account of such other indebtedness, and any
sums so received by Guarantor shall, as long as any of the Recourse Obligations
remain outstanding, be held in trust for MetLife and promptly paid over to
MetLife, provided nothing contained in this Guaranty shall impair the right of
Guarantor to receive all distributions to Members under and pursuant to the
Operating Agreement of Borrower (other than distributions, if any, representing
repayment of debt owed by Borrower to any such Member) provided that no Event of
Default has occurred and no Recourse Obligation shall be then due and owing.
4. This Guaranty is and shall be construed as a continuing, absolute,
irrevocable and unconditional guaranty of payment and performance, and not
merely a guaranty of collection, without regard to the validity or
enforceability of any of the Loan Documents or the viability of Borrower as a
duly organized and validly existing legal entity, and no set-off, counterclaim,
recoupment, reduction, or diminution of any obligation, or any defense of any
kind or nature which Borrower may have against MetLife or any other party, or
which Guarantor may have against Borrower, MetLife, or any other party, in
bankruptcy or in any other instance, shall be available to, or shall be asserted
by, Guarantor against MetLife.
5. This Guaranty shall remain in full force and effect and be binding
in accordance with and to the extent of its terms upon Guarantor and its
successors and assigns, and shall inure to the benefit of MetLife and its
successors and assigns (but excluding any such successor or assign not
affiliated with MetLife which acquires title to the Property (as defined in the
Mortgage) but was not a holder of either of the Notes). Guarantor's obligations
under
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this Guaranty are in addition to (and in no way shall be construed to diminish)
the rights and remedies available to MetLife against Borrower under the Loan
Documents, at law and/or in equity.
If, for any reason, any payment to MetLife of any of the Recourse
Obligations to which this Guaranty is applicable is required to be refunded to
Xxxxxx or paid over to any other party, including, without limitation, by reason
of the operation of bankruptcy laws now or hereafter enacted, Guarantor agrees
to pay to MetLife, on demand of MetLife, the amount so required to be paid over
by MetLife, and the Recourse Obligations of Guarantor shall not be treated as
having been discharged by reason of a payment to MetLife which gives rise to the
obligation of MetLife to repay the same. This Guaranty shall be treated as
having remained in full force and effect for any such repayment so required to
be made and made by MetLife, as well as any amount not theretofore paid to
MetLife on account of such Recourse Obligations of Guarantor.
At any public or private sale of any security or collateral for the
Recourse Obligations or any part thereof, whether by foreclosure or otherwise,
MetLife may, in its discretion, purchase all or any part of such security or
collateral so sold or offered for sale for its own account and may apply against
the amount bid therefor the balance due it pursuant to Loan Documents without
prejudice to MetLife's remedies hereunder against Guarantor for deficiencies.
6. Guarantor hereby represents and warrants that:
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(a) Guarantor has the power and authority to execute, deliver, and
perform its obligations under this Guaranty, and that this Guaranty constitutes
the legal, valid, and binding obligation of Guarantor, enforceable against
Guarantor in accordance with its terms;
(b) the execution, delivery, and performance by Guarantor of this
Guaranty does not and will not: (i) violate or conflict with any law, rule, or
regulation, or any order, writ, injunction, or decree of any court, arbitrator
or governmental authority or agency to which Guarantor is subject; (ii) conflict
with, result in a breach of, constitute a default under, or result in the
imposition of any lien upon any assets of Guarantor pursuant to the provisions
of, any indenture, mortgage, deed of trust, security agreement or any other
instrument or agreement to which Guarantor or its respective assets are bound;
and (iii) result in a breach or violation of the terms and provisions of the
operating agreement pursuant to which Borrower was formed, or any amendments
thereto, or any other agreement to which Guarantor is a party;
(c) no consent of any other person, and no consent, license, permit,
approval or authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental authority, bureau or
agency, is required in connection with the execution, delivery, performance,
validity or enforceability of this Guaranty;
(d) Guarantor has, independently and without reliance upon MetLife,
and based upon such documents and information as Guarantor has deemed
appropriate, made its own analysis and decision to enter into this Guaranty.
Furthermore, Guarantor has adequate means to obtain from Xxxxxx, on a continuing
basis, information concerning the financial
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condition and assets of Xxxxxx, and Guarantor is not relying upon MetLife to
provide (and MetLife shall have no duty to provide) any such information to
Guarantor, either now or in the future; and
(e) no litigation, arbitration, investigation or administrative
proceeding of or before any court, arbitrator or governmental authority, bureau
or agency is currently pending or, to the knowledge of Guarantor, threatened (i)
with respect to this Guaranty or any of the transactions contemplated by this
Guaranty, or (ii) against or affecting Guarantor, or any of its property or
assets, which, if adversely determined, would have a material adverse effect on
the business, operations, assets or condition, financial or otherwise, of
Guarantor.
7. Except as otherwise specifically provided or specifically permitted
in the Mortgage, Guarantor covenants and agrees, as long as the Loan, or any
part thereof, is outstanding, that Guarantor will at all times remain a member
of Borrower, as and to the same extent required by the applicable terms,
provisions, covenants and conditions of the Loan Documents.
8. JMB has delivered to Lender an audited statement of its financial
condition as of December 31, 1996 and OPCC has delivered to Lender a certified
unaudited statement of its financial condition as of March 31, 1997 ("Financial
Statement"). By no later than April 30 for OPCC and June 30 for JMB, of each
year during the term of the Loan, Guarantor shall deliver to MetLife a current
Financial Statement for Guarantor reporting its financial condition as of the
close of the previous calendar year. All required Financial Statements shall. be
prepared by a certified public accountant (or firm of certified public
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accountants) reasonably acceptable to MetLife and shall be certified by
Guarantor to be a true, correct and complete statement of its financial position
and net worth. Such Financial Statement shall be prepared in accordance with
generally accepted accounting principles.
9. The obligations of Guarantor under this Guaranty are independent of
the Loan (and a separate action or actions may be brought and prosecuted against
Guarantor to enforce this Guaranty, irrespective of whether any action is
brought against Borrower or whether Borrower has been joined in any such action
or actions), and the liability of Guarantor under this Guaranty shall be
absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any of the Loan
Documents;
(b) any change in the time, manner or place of payment of the Loan, or
any other change or modification in or of any terms, provisions, covenants or
conditions of any or all of the Loan Documents, including, without limitation,
any increase in the Loan resulting from the extension of additional credit to
Borrower, the granting of any indulgence to Borrower or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral,
or any taking, release or amendment or waiver of or consent to departure from
any other guaranty for all or any of the Loan, or, except as otherwise
specifically set forth herein, any sale or transfer by Borrower of the Property,
or any of the other collateral encumbered by any of the Loan Documents (without
implying that MetLife has consented or will consent to any such sale or
transfer);
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(d) any manner of application of collateral, or proceeds thereof, to
all or any of the Loan, or any manner of sale or other disposition of any
collateral for all or any of the Loan or any other assets of Borrower;
(e) any change, restructuring or termination of the existence of
Borrower;
(f) the relief, modification, impairment, change or limitation of the
Recourse Obligations by operation of law or otherwise (including, without
limitation, in connection with proceedings under the bankruptcy laws now or
hereafter enacted), Guarantor hereby waiving all suretyship defenses and other
defenses in the nature thereof; or
(g) any other circumstance which might otherwise constitute a defense
available to, or discharge of, Borrower.
10. Guarantor hereby waives notice of any default under the Loan
Documents (except that MetLife will simultaneously provide to Guarantor a copy
of any notice MetLife provides to Xxxxxx with respect to the obligations covered
by this Guaranty, provided the failure to deliver such notice shall not affect
the obligations and liability of Guarantor to MetLife under this Guaranty),
demand of payment, notice of acceptance of this Guaranty, presentment, notice of
protest, notice of dishonor, notice of the incurring by Borrower of additional
indebtedness, and all other notices and demands with respect to the Loan and
this Guaranty by MetLife and/or Borrower, and all suretyship defenses or other
defenses in the nature thereof.
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11. No failure to exercise, and no delay on the part of MetLife in
exercising, any right, power or privilege under this Guaranty shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
privilege by MetLife preclude any other or further exercise thereof, or the
exercise of any other power or right. The rights and remedies herein provided
are cumulative and not exclusive of any rights or remedies provided by law.
12. All notices, requests and demands and other communications
hereunder shall be deemed to have been sufficiently given or served upon receipt
(i) when presented personally; (ii) when delivered to an overnight courier
service with guaranteed next day delivery; or (iii) when deposited in the mail
by certified mail, return receipt requested, in each such case when addressed to
OPCC at 1 00 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000,
Attention: Legal, with a copy simultaneously sent to Xxxxxxxx, Xxxxxxx &
Xxxxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx X.
Xxxxxxx, Esq., when addressed to JMB at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, Attention: General Counsel, with a copy to Pircher, Xxxxxxx
& Xxxxx, 1999 Avenue of the Stars, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention:
Real Estate Notices (SCS), and when addressed to MetLife at 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Senior Vice-President, Real
Estate Investments, with a copy simultaneously sent to MetLife at Xxx Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Vice-President & Investment
Counsel, Real Estate Investments, and shall be deemed to have been received upon
the earlier of actual receipt thereof or the date indicated on the return
receipt as having been
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received. Either MetLife or Guarantor may change their respective addresses for
notices hereunder by written notice to the other party.
13. Guarantor recognizes that MetLife relied upon the delivery of this
Guaranty in entering into the Commitment, and is relying upon this Guaranty and
the undertakings of Guarantor hereunder in making the Loan to Borrower, as
aforesaid, and further recognizes that the execution and delivery of this
Guaranty is a material inducement to MetLife in so making the Loan to Borrower,
and that the making of the Loan to Borrower, as aforesaid, represents a
significant benefit to both Guarantor and Borrower. Guarantor hereby
acknowledges that there are no conditions or restrictions to the full
effectiveness of this Guaranty.
14. This Guaranty shall be governed by and be construed and
interpreted in accordance with the laws of the Commonwealth of Massachusetts.
Guarantor hereby irrevocably: (i) submits to the jurisdiction of the Trial
Courts, Superior Court Division, of the Commonwealth of Massachusetts, or any of
the U.S. Federal Courts having jurisdiction in the Commonwealth in any suit,
action or proceeding brought against Guarantor under or in connection with this
Guaranty; (ii) waives any objection that it may now or hereafter have as to the
venue of any such suit, action or proceeding brought in any such court or that
any such court is an inconvenient forum; and (iii) waives all right to a trial
by jury in any action, proceeding, or counterclaim (whether based upon contract,
tort or otherwise) arising out of or relating to this Guaranty, the transactions
contemplated hereby, or the actions of MetLife in the negotiation,
administration, or enforcement hereof.
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15. Subject to the provisions of Sections 5, 20 and 21 hereof, this
Guaranty shall remain in full force and effect until the full and complete
satisfaction and/or the earlier permitted prepayment in full of the Loan by
Borrower (or Guarantor). Guarantor further waives notice of any future amendment
of the Loan Documents, whether by formal document or otherwise.
16. Any provision of this Guaranty which is deemed to be prohibited or
unenforceable in any one jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any one jurisdiction shall not invalidate or render
unenforceable in any other jurisdiction such provision or any other provision of
this Guaranty.
17. This Guaranty represents the entire understanding of Guarantor and
MetLife with respect to the subject matter hereof and no provision of this
Guaranty shall be waived, amended or supplemented except by a written instrument
executed by Guarantor and MetLife.
18. This Guaranty shall not inure to the benefit of any third parties
other than MetLife (and its successors and assigns), and no such third parties
shall be deemed to be beneficiaries hereof nor be entitled to claim, under any
circumstances whatsoever, any benefit from this Guaranty.
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19. The obligations of each party executing this Guaranty shall be
joint and several. Whenever the term Guarantor is used herein it shall be deemed
to refer to each Guarantor individually, as well as all such Guarantors
collectively.
20. Notwithstanding anything to the contrary contained herein, in the
event that (a) JMB transfers its interest in Xxxxxx to Urban Shopping Centers,
L.P., an Illinois limited partnership, in accordance with the provisions of the
Loan Documents, and (b) USC delivers to MetLife a guaranty in form, scope and
substance substantially similar to this Guaranty, MetLife shall simultaneously
in connection with such transfer release JMB of its liability under this
Guaranty1 with respect to matters arising from and after the date of such
delivery.
21. Notwithstanding anything to the contrary contained herein, in the
event that (a) Xxxxxx transfers the Property in accordance with the provisions
of Section 3.03(d) of the Mortgage and (b) substitute guarantors reasonably
acceptable to MetLife deliver to MetLife a guaranty in form, scope and substance
substantially similar to this Guaranty and otherwise assume all of the
obligations of Guarantors under this guaranty in a manner reasonably
satisfactory to MetLife, MetLife shall simultaneously in connection with such
transfer release Guarantor of its liability under this Guaranty, with respect to
matters arising from and after the date of such delivery.
22. Notwithstanding anything to the contrary contained in this
Guaranty, but without in any manner releasing, impairing or otherwise affecting
this Guaranty or the liability of Guarantor hereunder, or the validity hereof,
no shareholder, officer, director, employee,
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agent, or representative of Guarantor shall have any personal liability under or
in connection with this Guaranty.
23. This Guaranty may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original, but
all of which together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day
and year first above written, under seal.
GUARANTOR:
OVERSEAS PARTNERS CAPITAL
CORP., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: President and CEO
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JMB REALTY CORPORATION
a Delaware corporation
By:
Name:
Title:
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day
and year first above written, under seal.
GUARANTOR:
OVERSEAS PARTNERS CAPITAL
CORP., a Delaware corporation
By:
Name:
Title:
JMB REALTY CORPORATION
a Delaware corporation
By: /s/ H. Xxxxx Xxxxxx
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Name: H. Xxxxx Xxxxxx
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Title: VP and CEO
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