EXHIBIT 10.96
GUARANTY OF LEASE FOR THE NISSAN PROPERTY
GUARANTY OF LEASE
THIS GUARANTY OF LEASE ("Guaranty") is made as of this 19/TH/ day of
September, 2001 by NISSAN NORTH AMERICA, INC., a California corporation
("Guarantor"), to and for the benefit of XXXXX OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership ("Landlord").
W I T N E S S E T H:
For value received and in order to induce Landlord to execute that
certain lease ("Lease") dated September 19, 2001 by and between Landlord and
Nissan Motor Acceptance Corporation, a California corporation, as tenant
("Tenant"), Guarantor hereby agrees to the following:
1. Guarantor unconditionally guarantees the payment when due of all
payment obligations (including, but not limited to, payment of rent) imposed
upon Tenant under the terms of the Lease, when and as the same shall become due
thereunder, and the payment of all costs and expenses incurred by Landlord
arising out of or in connection with Tenant's failure to fulfill non-monetary
obligations imposed upon Tenant under the terms of the Lease.. This Guaranty is
a guaranty of payment (not of collection).
2. Guarantor agrees that Landlord shall not be first required to
enforce against Tenant or any other person any obligation guaranteed hereby
before seeking enforcement thereof against Guarantor. Suit may be brought and
maintained against Guarantor by Landlord to enforce any obligation guaranteed
hereby without joinder of Tenant or any other person. Guarantor's liability
hereunder shall not be affected by any termination of the Lease.
3. This Guaranty shall be enforceable against Guarantor without the
necessity of any suit or proceeding on Landlord's part of any kind or nature
whatsoever against Tenant and without the necessity of any notice of non-
payment, non-performance or non-observance or of any notice of acceptance of
this Guaranty or of any other notice or demand to which Guarantor might
otherwise be entitled other than as provided herein, all of which Guarantor
hereby expressly waives.
4. Except for the exercise of the options to extend the term of the
Lease set forth in Paragraph 4 of the Lease, the liability of the Guarantor
under this Guaranty shall not be increased, extended or otherwise adversely
affected by any amendment, modification, waiver or any change in the Lease that
is made without the written consent of the Guarantor and which would have the
effect of increasing or extending the obligations of Tenant or otherwise
changing such obligations in a way that would be adverse to Tenant or the
Guarantor.
5. The liability of Guarantor hereunder is absolute and unconditional
and shall in no way be affected by (a) the release or discharge of Tenant in any
creditors, receivership, bankruptcy, or other proceedings; (b) the impairment,
limitation or modification of the liability of Tenant or the estate of Tenant in
bankruptcy or of any remedy for the enforcement of Tenant's liability under the
Lease, resulting from the operation of any present or future provisions of the
United States Bankruptcy Code or other statute or from the decision in any
court; (c) the
rejection or disaffirmance of the Lease in any such proceedings; (d) the
assignment or transfer of the Lease by Tenant to any subsidiary or affiliate of
Guarantor; (e) any disability or other defense of Tenant other than the defense
of payment and the rights of set off, abatement and credit expressly set forth
in the Lease; (f) the assertion or the failure to assert by Landlord against
Tenant of any of the rights or remedies reserved by Landlord pursuant to the
terms, covenants and conditions of the Lease, or (g) any non-liability of Tenant
under the Lease due to any other defect or defense which may now or hereafter
exist in favor of Tenant except for the rights of set off, abatement and credit
expressly set forth in the Lease. The liability of Guarantor hereunder shall in
no way be affected, modified or diminished by reason of any bankruptcy,
insolvency, reorganization, liquidation, arrangement, assignment for the benefit
of creditors, receivership, trusteeship or similar proceeding affecting Tenant,
whether or not notice thereof is given to Guarantor.
6. Until all the covenants and conditions in the Lease on Tenant's
part to be performed and observed are fully performed and observed, Guarantor
(a) shall have no right of subrogation against Tenant by reason of any payments
by Guarantor in compliance with the obligations of Guarantor hereunder; and (b)
waives any right to enforce any remedy which Guarantor now or hereafter shall
have against Tenant by reason of any one or more payments made by Guarantor to
Landlord in compliance with the obligations of Guarantor hereunder.
7. This Guaranty shall be binding upon Guarantor and the successors
and assigns of Guarantor, and shall inure to the benefit of Landlord and its
successors and assigns.
8. This Guaranty shall be governed by the laws of the State of Texas.
9. The Guarantor acknowledges that it will benefit by Tenant entering
into the Lease with Landlord.
10. Should Landlord be obligated by any bankruptcy or other law to
repay to Tenant or to Guarantor or to any trustee, receiver or other
representative of either of them, any amounts previously paid, this Guaranty
shall be reinstated in the amount of such repayments. Landlord shall not be
required to litigate or otherwise dispute its obligations to make such
repayments if it in good faith believes that such obligation exists.
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IN WITNESS WHEREOF, Guarantor has executed this instrument in the day
and year first above written.
NISSAN NORTH AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
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Title: Senior Vice President, Admistration
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and Finance
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Address for Notices:
Nissan North America, Inc.
Attn: Xxx Xxxxxx, Corporate Manager, Real Estate and Facilities
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
FAX: 000-000-0000
E-Mail: xxx.xxxxxx@xxxxxx-xxx.xxx
with a copy to:
Nissan North America, Inc.
Attn: Legal Department
000 Xxxx 000/xx/ Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
FAX: 000-000-0000
E-Mail: xxx.xxxxxx@xxxxxx-xxx.xxx
Federal Identification Number:
00-0000000
SECRETARY'S CERTIFICATE
The undersigned hereby certifies that she is the Assistant Secretary of
Guarantor, and as such has knowledge of the facts stated in this Certificate,
that the foregoing Guaranty was executed and delivered by Guarantor pursuant to
due authorization of the Board of Directors of Guarantor, and that the officers
of the corporation who signed the Guaranty on behalf of the corporation were the
then incumbents of the offices set forth under their respective names, and as
such officers were duly authorized to execute said Guaranty on behalf of the
Guarantor.
DATED this 19/TH/ day of September, 2001.
/s/ Xxxxx X. Xxxxxx
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Assistant Secretary
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