EXHIBIT 10.4
NORDSTROM, INC.,
(Guarantor)
in favor of
NEW YORK LIFE INSURANCE COMPANY
and
LIFE INVESTORS INSURANCE COMPANY OF AMERICA
(Lender)
GUARANTY
Dated: As of April 18, 2002
GUARANTY
This GUARANTY ("Guaranty") is executed as of April 18, 2002 by
NORDSTROM, INC., a Washington corporation, having an address at 0000 - 0xx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000 ("Guarantor") for the benefit
of NEW YORK LIFE INSURANCE COMPANY, a New York mutual insurance company
("NYLIC"), having an address at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-
1603 ("Lender"), and LIFE INVESTORS INSURANCE COMPANY OF AMERICA, an Iowa
corporation ("LIICA"), having an address in care of NYLIC.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Promissory Note, dated of even date
herewith, executed by 1700 Seventh L.P. ("Borrower") and payable to the order
of NYLIC, and that certain Promissory Note dated of even date herewith,
executed by Borrower and payable to the order of LIICA, each note in the
original principal amount of $42,500,000.00 (both such notes, collectively,
together with all renewals, modifications, increases and extensions thereof,
the "Note"), Borrower has become indebted, and may from time to time be
further indebted, to Lender with respect to a loan in the total amount of
$85,000,000.00 ("Loan"). The Loan is secured by the lien and security
interest of a Deed of Trust, Assignment of Leases and Rents, and Security
Agreement and Fixture Filing, of even date herewith (the "Mortgage"), and
further evidenced, secured or governed by other instruments and documents
executed in connection with the Loan (together with the Note and Mortgage,
the "Loan Instruments"); and
WHEREAS, Lender is not willing to make the Loan, or otherwise extend
credit, to Borrower unless Guarantor unconditionally guarantees payment and
performance to Lender of the Guaranteed Obligations (as herein defined); and
WHEREAS, Guarantor is the owner of a direct partnership interest in
Borrower, and Guarantor will directly benefit from Lender's making the Loan
to Borrower.
NOW, THEREFORE, as an inducement to Lender to make the Loan to Borrower,
and to extend such additional credit as Lender may from time to time agree to
extend under the Loan Instruments, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:
ARTICLE I
NATURE AND SCOPE OF GUARANTY
1.1 Guaranty of Obligation. Guarantor hereby irrevocably and
unconditionally guarantees to Lender and its successors and assigns the
payment and performance of the Guaranteed Obligations as and when the same
shall be due and payable, whether by lapse of time, by acceleration of
maturity or otherwise. Guarantor hereby irrevocably and unconditionally
covenants and agrees that it is liable for the Guaranteed Obligations as a
primary obligor and that it shall fully perform each and every term and
provision hereof.
1.2 Definition of Guaranteed Obligations. As used herein, the term
1.3 "Guaranteed Obligations" means:
(i) all losses, claims, damages, costs, expenses and/or
liabilities, including attorneys' fees and expenses, incurred by Lender:
(a) as a result of any material misstatement of fact (1)
by Borrower or any Person (as defined in the Mortgage) constituting Borrower
made to induce Lender to advance the principal amount evidenced by the Note
or (2) contained in any Loan Instrument;
(b) as a result of fraud committed by Borrower or any
Person constituting Borrower;
(c) as a result of the collection or application of any
insurance proceeds, condemnation awards, trust funds or security deposits in
a manner that is not in accordance with the provisions of the Loan
Instruments, or the failure to pay Lender all rents, income and profits or
other proceeds derived from the Property, net of reasonable and customary
operating expenses, received in respect of a period when the Loan is in
default;
(d) as a result of the breach of any representation or
warranty contained in the Sections of the Mortgage pertaining to
environmental matters, including, without limitation, Section 1.05E(4), 2.03C
or 2.03D, or any default with respect to any covenant contained in the
Sections of the Mortgage pertaining to environmental matters including,
without limitation, Section 1.05E;
(e) as a result of any default with respect to Borrower's
covenant to pay Impositions, pursuant to Section 1.02 of the Mortgage, or
insurance premiums, pursuant to Section 1.03 of the Mortgage;
(f) arising from, in respect of, as a consequence of, or
in connection with: (1) claims asserted by any Person (including, without
limitation, any Governmental Agency (as defined in the Mortgage)) in
connection with, or in any way arising out of, the presence, storage, use,
disposal, generation, transportation or treatment of any Hazardous Material
(as defined in the Mortgage) in, on, or under or about the Secured Property,
(2) the violation or claimed violation of any law relating to any Hazardous
Material or any other Environmental Requirement (as defined in the Mortgage)
in regard to the Secured Property (as defined in the Mortgage), regardless of
whether or not such violation or claimed violation occurred prior to or after
the date of the Mortgage or whether or not such violation or claimed
violation occurred prior to or after the time that Borrower became the owner
of the Secured Property, or (3) the preparation of any environmental audit as
to the Secured Property, whether conducted or authorized by Borrower, Lender
or any other Person or the implementation of any such audit's
recommendations; or
(g) as a result of any intentional, bad faith waste of
the Secured Property committed by Borrower or its agents (such damages to
include, without limitation, all repair costs incurred by Borrower); and
(ii) if there shall be a violation of Section 1.11 of the
Mortgage and/or in the event that any petition for bankruptcy, reorganization
or arrangement pursuant to federal bankruptcy law, or any similar federal or
state law, shall be filed by, consented to or acquiesced in by Borrower or
Xxxxx Properties, Inc. ("Other Guarantor") and/or if any proceeding for the
dissolution or liquidation of Borrower or any Other Guarantor shall be
instituted by Borrower or Guarantor or any Other Guarantor (unless before any
such filing Borrower offered to enter into Lender's choice of either an
agreement to permit an uncontested foreclosure or an agreement to deliver a
deed in lieu of foreclosure within 60 days after Lender's acceptance of such
offer), all outstanding principal and interest under the Note and all other
Obligations (as defined in the Mortgage). If Borrower defaults in fulfilling
the terms of any offer accepted by Lender pursuant to the foregoing sentence,
Guarantor shall be liable for the full amount of the Obligations.
1.3 Nature of Guaranty. This Guaranty is an irrevocable, absolute,
continuing guaranty of payment and performance and not a guaranty of
collection. This Guaranty may not be revoked by Guarantor and shall continue
to be effective with respect to any Guaranteed Obligations arising or created
after any attempted revocation by Guarantor and after (if Guarantor is a
natural person) Guarantor's death (in which event this Guaranty shall be
binding upon Guarantor's estate and Guarantor's legal representatives and
heirs). The fact that at any time or from time to time the Guaranteed
Obligations may be increased or reduced shall not release or discharge the
obligation of Guarantor to Lender with respect to the Guaranteed Obligations.
This Guaranty may be enforced by Lender and any subsequent holder of the Note
and shall not be discharged by the assignment or negotiation of all or part
of the Note.
1.4 Guaranteed Obligations Not Reduced by Offset. The Guaranteed
Obligations and the liabilities and obligations of Guarantor to Lender
hereunder shall not be reduced, discharged or released because or by reason
of any existing or future offset, claim or defense of Borrower, or any other
party, against Lender, or any other party, or against payment of the
Guaranteed Obligations, whether such offset, claim or defense arises in
connection with the Guaranteed Obligations (or the transactions creating the
Guaranteed Obligations) or otherwise.
1.5 Payment By Guarantor. If all or any part of the Guaranteed
Obligations shall not be punctually paid when due, whether at demand,
maturity, acceleration or otherwise, Guarantor shall, immediately upon demand
by Lender, and without presentment, protest, notice of protest, notice of
non-payment, notice of intention to accelerate the maturity, notice of
acceleration of the maturity, or any other notice whatsoever, pay in lawful
money of the United States of America, the amount due on the Guaranteed
Obligations to Lender at Lender's address as set forth herein. Such
demand(s) may be made at any time coincident with or after the time for
payment of all or part of the Guaranteed Obligations, and may be made from
time to time with respect to the same or different items of Guaranteed
Obligations. Such demand shall be deemed made, given and received in
accordance with the notice provisions hereof.
1.6 No Duty To Pursue Others. It shall not be necessary for Lender
(and Guarantor hereby waives any rights which Guarantor may have to require
Lender), in order to enforce the obligations of Guarantor hereunder, first to
(i) institute suit or exhaust its remedies against Borrower or others liable
on the Loan or the Guaranteed Obligations or any other Person, (ii) enforce
Lender's rights against any collateral which shall ever have been given to
secure the Loan, (iii) enforce Lender's rights against any other guarantors
of the Guaranteed Obligations, (iv) join Borrower or any others liable on the
Guaranteed Obligations in any action seeking to enforce this Guaranty,
(v) exhaust any remedies available to Lender against any collateral which
shall ever have been given to secure the Loan, or (vi) resort to any other
means of obtaining payment of the Guaranteed Obligations. Lender shall not
be required to mitigate damages or take any other action to reduce, collect
or enforce the Guaranteed Obligations.
1.7 Waivers. Guarantor agrees to the provisions of the Loan
Instruments, and hereby waives notice of (i) any loans or advances made by
Lender to Borrower, (ii) acceptance of this Guaranty, (iii) any amendment or
extension of the Note, the Mortgage or any other Loan Instruments, (iv) the
execution and delivery by Borrower and Lender of any other loan or credit
agreement or of Borrower's execution and delivery of any promissory notes or
other documents arising under the Loan Instruments or in connection with the
Secured Property, (v) the occurrence of any breach by Borrower or an Event of
Default (as defined in the Mortgage), (vi) Lender's transfer or disposition
of the Guaranteed Obligations, or any part thereof, (vii) sale or foreclosure
(or posting or advertising for sale or foreclosure) of any collateral for the
Guaranteed Obligations, (viii) protest, proof of non-payment or default by
Borrower, or (ix) any other action at any time taken or omitted by Lender,
and, generally, all demands and notices of every kind in connection with this
Guaranty, the Loan Instruments, any documents or agreements evidencing,
securing or relating to any of the Guaranteed Obligations and the obligations
hereby guaranteed.
1.8 Payment of Expenses. In the event that Guarantor should breach
or fail to timely perform any provisions of this Guaranty, Guarantor shall,
immediately upon demand by Lender, pay Lender all costs and expenses
(including, without limitation, court costs and reasonable attorneys' fees
and disbursements) incurred by Lender in the enforcement hereof or the
preservation of Lender's rights hereunder. The covenant contained in this
Section shall survive the payment and performance of the Guaranteed
Obligations.
1.9 Effect of Bankruptcy. In the event that, pursuant to any
insolvency, bankruptcy, reorganization, receivership or other debtor relief
law, or any judgment, order or decision thereunder, Lender must refund or
restore any payment, or any part thereof, received by Lender in satisfaction
of the Guaranteed Obligations, as set forth herein, any prior release or
discharge from the terms of this Guaranty given to Guarantor by Lender shall
be without effect, and this Guaranty shall remain in full force and effect.
It is the intention of Borrower and Guarantor that Guarantor's obligations
hereunder shall not be discharged except by Guarantor's performance of such
obligations and then only to the extent of such performance.
1.10 Waiver of Subrogation, Reimbursement and Contribution.
Notwithstanding anything to the contrary contained in this Guaranty, until
such time as all Obligations have been paid in full and are not subject to
disgorgement by Lender or return or set aside thereof,
Guarantor hereby unconditionally and irrevocably waives, releases and
abrogates any and all rights it may now or hereafter have under any
agreement, at law or in equity (including, without limitation, any law
subrogating the Guarantor to the rights of Lender), to assert any claim
against or seek contribution, indemnification or any other form of
reimbursement from Borrower or any other party liable for payment of any or
all of the Guaranteed Obligations for any payment made by Guarantor under or
in connection with this Guaranty or otherwise.
1.11 Financial Reporting. Guarantor will keep and maintain complete
and accurate books and records of Guarantor's earnings and financial
condition and, without expense to Lender, will furnish to Lender, within one
hundred twenty (120) days after the end of each fiscal year of Guarantor, the
following financial information reflecting Guarantor's financial position for
the immediately preceding year, all prepared and certified by an independent
certified public accountant reasonably satisfactory to Lender, and in
accordance with generally accepted accounting principles: (i) a statement of
financial position of Guarantor, (ii) a statement of cash flows of Guarantor,
(iii) a profit and loss statement, and (iv) a balance sheet. Notwithstanding
the foregoing, Guarantor may provide its annual statement containing its
financial statements in place of the foregoing financial statements so long
as Guarantor is publicly traded. If Guarantor is no longer publicly traded,
the foregoing financial statements may be prepared by Guarantor and certified
as accurate and complete by the chief financial officer of Guarantor.
1.12 Borrower. The term "Borrower" as used herein shall include any
new or successor corporation, association, partnership (general or limited),
limited liability company, joint venture, trust or other individual or
organization formed as a result of any merger, reorganization, sale,
transfer, devise, gift or bequest of Borrower or any interest in Borrower.
Nothing set forth herein, however, shall constitute a consent by Lender to
any merger, reorganization, sale, transfer, devise, gift, or bequest of
Borrower or any interest in Borrower, nor shall anything set forth herein
diminish or affect in any manner whatsoever any of the obligations or
liabilities of Borrower under the Loan Instruments.
1.13 Recourse Limitations Do Not Apply. It is understood and agreed
that the limitations of liability provided in the Note and any other Loan
Instruments shall not apply with respect to the Guarantor as to the
Guaranteed Obligations and that, notwithstanding anything to the contrary in
the Note or any other Loan Instrument, Lender shall have full and personal
recourse against the assets of the Guarantor as to the Guaranteed Obligations
and such limitations shall not apply for purposes of enforcing this Guaranty.
1.14 Release. If Guarantor transfers all of its 49% limited
partnership interest in Borrower to a Permitted Nordstrom Transferee, as
defined in, permitted by and in accordance with the Deed of Trust, Lender
shall release Guarantor from its liability under this Guaranty arising from
and after the date of such transfer, provided that the Permitted Nordstrom
Transferee provides a guaranty to Lender in the form of this Guaranty (or, in
the case of a transfer to Xxxxx Properties, Inc., such guarantor reaffirms
its obligations under its Guaranty of even date herewith). In the event of
such a transfer, Guarantor shall not be released from liability arising
hereunder before the date of such transfer.
ARTICLE II
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR'S OBLIGATIONS
Guarantor hereby consents and agrees to each of the following, and
agrees that Guarantor's obligations under this Guaranty shall not be
released, diminished, impaired, reduced or adversely affected by any of the
following, and waives any common law, equitable, statutory or other rights
(including without limitation rights to notice) which Guarantor might
otherwise have as a result of or in connection with any of the following:
2.1 Modifications. Any renewal, extension, increase, modification,
alteration or rearrangement of all or any part of the Guaranteed Obligations,
the Note, the Mortgage, the other Loan Instruments, or any other document,
instrument, contract or understanding between Borrower and Lender, or any
other parties, pertaining to the Guaranteed Obligations or any failure of
Lender to notify Guarantor of any such action.
2.2 Adjustment. Any adjustment, indulgence, forbearance or
compromise that might be granted or given by Lender to Borrower or any
Guarantor.
2.3 Condition of Borrower or Guarantor. The insolvency, bankruptcy,
arrangement, adjustment, composition, liquidation, disability, dissolution or
lack of power of Borrower, Guarantor or any other party at any time liable
for the payment of all or part of the Guaranteed Obligations; or any
dissolution of Borrower or Guarantor, or any sale, lease or transfer of any
or all of the assets of Borrower or Guarantor, or any changes in the
shareholders, partners or members of Borrower or Guarantor; or any
reorganization of Borrower or Guarantor.
2.4 Invalidity of Guaranteed Obligations. The invalidity, illegality
or unenforceability of all or any part of the Guaranteed Obligations, or any
document or agreement executed in connection with the Guaranteed Obligations,
for any reason whatsoever, including without limitation the fact that (i) the
Guaranteed Obligations, or any part thereof, exceeds the amount permitted by
law, (ii) the act of creating the Guaranteed Obligations or any part thereof
is ultra xxxxx, (iii) the officers or representatives executing the Note, the
Mortgage or the other Loan Instruments or otherwise creating the Guaranteed
Obligations acted in excess of their authority, (iv) the Guaranteed
Obligations violate applicable usury laws, (v) the Borrower has valid
defenses, claims or offsets (whether at law, in equity or by agreement) which
render the Guaranteed Obligations wholly or partially uncollectible from
Borrower, (vi) the creation, performance or repayment of the Guaranteed
Obligations (or the execution, delivery and performance of any document or
instrument representing part of the Guaranteed Obligations or executed in
connection with the Guaranteed Obligations, or given to secure the repayment
of the Guaranteed Obligations) is illegal, uncollectible or unenforceable, or
(vii) the Note, the Mortgage or any of the other Loan Instruments have been
forged or otherwise are irregular or not genuine or authentic, it being
agreed that Guarantor shall remain liable hereon regardless of whether
Borrower or any other Person be found not liable on the Guaranteed
Obligations or any part thereof for any reason.
2.5 Release of Obligors. Any full or partial release of the
liability of Borrower on the Guaranteed Obligations, or any part thereof, or
of any co-guarantors, or any other Person or entity now or hereafter liable,
whether directly or indirectly, jointly, severally, or jointly and severally,
to pay, perform, guarantee or assure the payment of the Guaranteed
Obligations, or any part thereof, it being recognized, acknowledged and
agreed by Guarantor that Guarantor may be required to pay the Guaranteed
Obligations in full without assistance or support of any other party, and
Guarantor has not been induced to enter into this Guaranty on the basis of a
contemplation, belief, understanding or agreement that other parties will be
liable to pay or perform the Guaranteed Obligations, or that Lender will look
to other parties to pay or perform the Guaranteed Obligations.
2.6 Other Collateral. The taking or accepting of any other security,
collateral or guaranty, or other assurance of payment, for all or any part of
the Guaranteed Obligations.
2.7 Release of Collateral. Any release, surrender, exchange,
subordination, deterioration, waste, loss or impairment (including without
limitation negligent, willful, unreasonable or unjustifiable impairment) of
any collateral, property or security at any time existing in connection with,
or assuring or securing payment of, all or any part of the Guaranteed
Obligations and any application of any collateral, property or security to
the Guaranteed Obligations in any order or manner as Lender may determine in
its discretion.
2.8 Care and Diligence. The failure of Lender or any other party to
exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of such
collateral, property or security, including but not limited to any neglect,
delay, omission, failure or refusal of Lender (i) to take or prosecute any
action for the collection of any of the Guaranteed Obligations or (ii) to
foreclose, or initiate any action to foreclose, or, once commenced, prosecute
to completion any action to foreclose upon any security therefor, or (iii) to
take or prosecute any action in connection with any instrument or agreement
evidencing or securing all or any part of the Guaranteed Obligations.
2.9 Unenforceability. The fact that any collateral, security,
security interest or lien contemplated or intended to be given, created or
granted as security for the repayment of the Guaranteed Obligations, or any
part thereof, shall not be properly perfected or created, or shall prove to
be unenforceable or subordinate to any other security interest or lien, it
being recognized and agreed by Guarantor that Guarantor is not entering into
this Guaranty in reliance on, or in contemplation of the benefits of, the
validity, enforceability, collectibility or value of any of the collateral
for the Guaranteed Obligations.
2.10 Offset. The Note, the Guaranteed Obligations and the liabilities
and obligations of the Guarantor to Lender hereunder shall not be reduced,
discharged or released because of or by reason of any existing or future
right of offset, claim or defense of Borrower, or any other party, against
Lender, or any other party, or against payment of the Guaranteed Obligations,
whether such right of offset, claim or defense arises in connection with the
Guaranteed Obligations (or the transactions creating the Guaranteed
Obligations) or otherwise.
2.11 Merger. The reorganization, merger or consolidation of Borrower
into or with any other corporation or entity.
2.12 Preference. Any payment by Borrower to Lender is held to
constitute a preference under bankruptcy laws, or for any reason Lender is
required to refund such payment or pay such amount to Borrower or someone
else.
2.13 Other Actions Taken or Omitted. Any other action taken or
omitted to be taken with respect to the Loan Instruments, the Guaranteed
Obligations, or the security and collateral therefor, whether or not such
action or omission prejudices Guarantor or increases the likelihood that
Guarantor will be required to pay the Guaranteed Obligations pursuant to the
terms hereof, it is the unambiguous and unequivocal intention of Guarantor
that Guarantor shall be obligated to pay the Guaranteed Obligations when due,
notwithstanding any occurrence, circumstance, event, action, or omission
whatsoever, whether contemplated or uncontemplated, and whether or not
otherwise or particularly described herein, which obligation shall be deemed
satisfied only upon the full and final payment and satisfaction of the
Guaranteed Obligations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into the Loan Instruments and extend credit to
Borrower, Guarantor represents and warrants to Lender as follows:
3.1 Benefit. Guarantor is the owner of a direct interest in
Borrower, and has received, or will receive, direct or indirect benefit from
the making of this Guaranty with respect to the Guaranteed Obligations.
3.2 Familiarity and Reliance. Guarantor is familiar with, and has
independently reviewed books and records regarding the financial condition of
the Borrower and is familiar with the value of any and all collateral
intended to be created as security for the payment of the Note or Guaranteed
Obligations; however, Guarantor is not relying on such financial condition or
the collateral as an inducement to enter into this Guaranty.
3.3 No Representation By Lender. Neither Lender nor any other party
has made any representation, warranty or statement to Guarantor in order to
induce the Guarantor to execute this Guaranty.
3.4 Guarantor's Financial Condition. As of the date hereof, and
after giving effect to this Guaranty and the contingent obligation evidenced
hereby, Guarantor is, and will be, solvent, and has and will have assets
which, fairly valued, exceed Guarantor's obligations, liabilities (including
contingent liabilities) and debts, and has and will have property and assets
sufficient to satisfy and repay Guarantor's obligations and liabilities.
3.5 Legality. The execution, delivery and performance by Guarantor
of this Guaranty and the consummation of the transactions contemplated
hereunder do not, and will not,
contravene or conflict with any law, statute or regulation whatsoever to
which Guarantor is subject or constitute a default (or an event which with
notice or lapse of time or both would constitute a default) under, or result
in the breach of, any indenture, mortgage, charge, lien, or any contract,
agreement or other instrument to which Guarantor is a party or which may be
applicable to Guarantor. This Guaranty is a legal and binding obligation of
Guarantor and is enforceable in accordance with its terms, except as limited
by bankruptcy, insolvency or other laws of general application relating to
the enforcement of creditors' rights.
3.6 Survival. All representations and warranties made by Guarantor
herein shall survive the execution hereof.
3.7 Review of Documents. Guarantor has examined the Note and all of
the Loan Instruments.
3.8 Litigation. There are no proceedings pending or, so far as
Guarantor knows, threatened before any court or administrative agency which
would affect the authority of Guarantor to enter into, or the validity or
enforceability of this Guaranty or which if decided adversely to Guarantor
would materially adversely affect the financial condition of Guarantor.
3.9 Tax Returns. Guarantor has filed all required federal, state and
local tax returns and has paid all taxes as shown on such returns as they
have become due. No claims have been assessed and are unpaid with respect to
such taxes.
ARTICLE IV
SUBORDINATION OF CERTAIN INDEBTEDNESS
4.1 Subordination of All Guarantor Claims. As used herein, the term
"Guarantor Claims" shall mean all debts and liabilities of Borrower to
Guarantor, whether such debts and liabilities now exist or are hereafter
incurred or arise, or whether the obligations of Borrower thereon be direct,
contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or liabilities be evidenced by note,
contract, open account, or otherwise, and irrespective of the Person or
Persons in whose favor such debts or liabilities may, at their inception,
have been, or may hereafter be created, or the manner in which they have been
or may hereafter be acquired by Guarantor. The Guarantor Claims shall
include without limitation all rights and claims of Guarantor against
Borrower (arising as a result of subrogation or otherwise) as a result of
Guarantor's payment of all or a portion of the Guaranteed Obligations. Upon
the occurrence of an Event of Default or the occurrence of an event which
would, with the giving of notice or the passage of time, or both, constitute
an Event of Default, Guarantor shall not receive or collect, directly or
indirectly, from Borrower or any other party any amount upon the Guarantor
Claims.
4.2 Claims in Bankruptcy. In the event of receivership, bankruptcy,
reorganization, arrangement, debtor's relief, or other insolvency proceedings
involving Guarantor as debtor, Lender shall have the right to prove its claim
in any such proceeding so as to establish its rights hereunder and receive
directly from the receiver, trustee or other court custodian dividends and
payments which would otherwise be payable upon Guarantor Claims. Guarantor
hereby assigns such dividends and payments to Lender. Should Lender receive,
for application upon the Guaranteed Obligations, any such dividend or payment
which is otherwise payable to Guarantor, and which, as between Borrower and
Guarantor, shall constitute a credit upon the Guarantor Claims, then upon
payment to Lender in full of the Guaranteed Obligations, Guarantor shall
become subrogated to the rights of Lender to the extent that such payments to
Lender on the Guarantor Claims have contributed toward the liquidation of the
Guaranteed Obligations, and such subrogation shall be with respect to that
proportion of the Guaranteed Obligations which would have been unpaid if
Lender had not received dividends or payments upon the Guarantor Claims.
4.3 Payments Held in Trust. In the event that, notwithstanding
anything to the contrary in this Guaranty, Guarantor should receive any
funds, payment, claim or distribution which is prohibited by this Guaranty,
Guarantor agrees to hold in trust for Lender an amount equal to the amount of
all funds, payments, claims or distributions so received, and agrees that it
shall have absolutely no dominion over the amount of such funds, payments,
claims or distributions so received except to pay them promptly to Lender,
and Guarantor covenants promptly to pay the same to Lender.
4.4 Liens Subordinate. Guarantor agrees that any liens, security
interests, judgment liens, charges or other encumbrances upon Borrower's
assets securing payment of the Guarantor Claims shall be and remain inferior
and subordinate to any liens, security interests, judgment liens, charges or
other encumbrances upon Borrower's assets securing payment of the Guaranteed
Obligations, regardless of whether such encumbrances in favor of Guarantor or
Lender presently exist or are hereafter created or attach. Without the prior
written consent of Lender, Guarantor shall not (i) exercise or enforce any
creditor's right it may have against Borrower, or (ii) foreclose, repossess,
sequester or otherwise take steps or institute any action or proceedings
(judicial or otherwise, including without limitation the commencement of, or
joinder in, any liquidation, bankruptcy, rearrangement, debtor's relief or
insolvency proceeding) to enforce any liens, mortgages, deeds of trust,
security interests, collateral rights, judgments or other encumbrances on
assets of Borrower held by Guarantor. Nothing set forth in this Section 4.4
is intended or shall be construed as the permitting of or the granting by
Lender of its consent to the creation or existence of any liens, security
interests, judgment liens, charges or other encumbrances upon Borrower's
assets or the Secured Property.
ARTICLE V
MISCELLANEOUS
5.1 Waiver. No failure to exercise, and no delay in exercising, on
the part of Lender, any right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right. The rights of
Lender hereunder shall be in addition to all other rights provided by law.
No modification or waiver of any provision of this Guaranty, nor consent to
departure therefrom, shall be effective unless in writing and no such consent
or waiver shall extend beyond the particular case and purpose involved. No
notice or demand given in any case shall constitute a
waiver of the right to take other action in the same, similar or other
instances without such notice or demand.
5.2 Notices. All notices and demands or other communications
hereunder shall be in writing, and shall be deemed to have been sufficiently
given or served for all purposes when presented personally or sent by
generally recognized overnight delivery service, with postage prepaid,
addressed to Guarantor or Lender, as applicable, at the address stated below,
or at such other address of which either Guarantor or Lender may hereafter
notify the other in writing:
Guarantor:
NORDSTROM, INC.
0000 - 0xx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Real Estate Notices
Lender:
NEW YORK LIFE INSURANCE COMPANY
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Real Estate Vice President
Real Estate Department -Loan Administration
Loan No.: 372-6767
with a copy to:
NEW YORK LIFE INSURANCE COMPANY
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Office of the General Counsel
Real Estate Section
Each notice or demand so given or served shall be deemed given and
effective (a) if personally delivered, on the day of actual delivery or
refusal and (b) if sent by generally recognized overnight delivery service,
on the next business day. Notwithstanding the foregoing, service of any
notice of default provided or required by law shall, if mailed as required by
law, be deemed given and effective on the date of mailing.
5.3 Governing Law. This Guaranty shall be governed by and construed
in accordance with the laws of the State in which the real property
encumbered by the Mortgage is located and the applicable laws of the United
States of America and, in connection with any action or proceeding arising
out of or relating to this Guaranty, Guarantor hereby submits to the
jurisdiction of any court of competent jurisdiction located in such State.
5.4 Invalid Provisions. If any provision of this Guaranty is held to
be illegal, invalid, or unenforceable under present or future laws effective
during the term of this Guaranty, such provision shall be fully severable and
this Guaranty shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Guaranty, and the
remaining provisions of this Guaranty shall remain in full force and effect
and shall not be affected by the illegal, invalid or unenforceable provision
or by its severance from this Guaranty, unless such continued effectiveness
of this Guaranty, as modified, would be contrary to the basic understandings
and intentions of the parties as expressed herein.
5.5 Amendments. This Guaranty may be amended only by an instrument
in writing executed by the party or an authorized representative of the party
against whom such amendment is sought to be enforced.
5.6 Parties Bound; Assignment; Joint and Several. This Guaranty
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns and legal representatives; provided,
however, that Guarantor may not, without the prior written consent of Lender,
assign any of Guarantor's rights, powers, duties or obligations hereunder.
If Guarantor consists of more than one Person, the obligations and
liabilities of each such Person shall be joint and several. As to any
individual Guarantor, this Guaranty shall be binding on any community of
which any such Guarantor is a part and on any community, quasi-community and
separate property of such Guarantor.
5.7 Headings. Section headings are for convenience of reference only
and shall in no way affect the interpretation of this Guaranty.
5.8 Recitals. The recital and introductory paragraphs hereof are a
part hereof, form a basis for this Guaranty and shall be considered prima
facie evidence of the facts and documents referred to therein.
5.9 Counterparts. To facilitate execution, this Guaranty may be
executed in as many counterparts as may be convenient or required. It shall
not be necessary that the signature of, or on behalf of, each party, or that
the signature of all Persons required to bind any party, appear on each
counterpart. All counterparts shall collectively constitute a single
instrument. It shall not be necessary in making proof of this Guaranty to
produce or account for more than a single counterpart containing the
respective signatures of, or on behalf of, each of the parties hereto. Any
signature page to any counterpart may be detached from such counterpart
without impairing the legal effect of the signatures thereon and thereafter
attached to another counterpart identical thereto except having attached to
it additional signature pages.
5.10 Rights and Remedies. If Guarantor becomes liable for any
indebtedness owing by Borrower to Lender, by endorsement or otherwise, other
than under this Guaranty, such liability shall not be in any manner impaired
or affected hereby and the rights of Lender hereunder shall be cumulative of
any and all other rights that Lender may ever have against Guarantor. The
exercise by Lender of any right or remedy hereunder or under any other
instrument, or at law or in equity, shall not preclude the concurrent or
subsequent exercise of any other right or remedy.
5.11 Other Defined Terms. Any capitalized term utilized herein shall
have the meaning as specified in the Mortgage, unless such term is otherwise
specifically defined herein.
5.12 Entirety. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF
GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR'S GUARANTY OF THE GUARANTEED
OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR AND LENDER AS
A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE
OF DEALING BETWEEN GUARANTOR AND LENDER, NO COURSE OF PERFORMANCE, NO TRADE
PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE
USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY
AGREEMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND LENDER.
5.13 Waiver of Right To Trial By Jury. GUARANTOR HEREBY AGREES NOT TO
ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY
RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE NOTE, THE MORTGAGE, OR THE
OTHER LOAN INSTRUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY GUARANTOR, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF
THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY
GUARANTOR.
5.14 No Oral Commitments. NOTICE IS HEREBY GIVEN THAT ORAL AGREEMENTS
OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, MODIFY LOAN TERMS, OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
EXECUTED as of the day and year first above written.
GUARANTOR:
NORDSTROM, INC., a Washington
corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------
Title: Vice-President - Real Estate
& Legal Affairs
-----------------------------
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxxx X.
Xxxxxx is the person who appeared before me, and said person acknowledged
that he signed this instrument, on oath stated that he was authorized to
execute the instrument and acknowledged it as the Vice-President - Real
Estate & Legal Affiars of Nordstrom, Inc. to be the free and voluntary act of
such party for the uses and purposes mentioned in the instrument.
Dated: April 17, 2002.
------------------------- /s/ Xxxx Xxxxxxxxxxx
| | -------------------------------------------
| | Notary Public
| | Print Name Xxxx Xxxxxxxxxxx
| | --------------------------------
| | My commission expires 5/23/03
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STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that A.M. Xxxxx is
the person who appeared before me, and said person acknowledged that he
signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the President /CEO of Xxxxx Properties,
Inc. to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Dated: April 17, 2002.
------------------------- /s/ Xxxx Xxxxxxxxxxx
| | -------------------------------------------
| | Notary Public
| | Print Name Xxxx Xxxxxxxxxxx
| | --------------------------------
| | My commission expires 5/23/03
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