1
EXHIBIT 10(c)
REAFFIRMATION AND RATIFICATION
OF GUARANTY
THIS REAFFIRMATION AND RATIFICATION OF GUARANTY
("REAFFIRMATION") made as of the _____ day of October, 1998, by MEI HOLDINGS,
L.P., a Delaware limited partnership, ("MEI" or "GUARANTOR") in favor of NOMURA
ASSET CAPITAL CORPORATION, a Delaware corporation ("LENDER").
W I T N E S S E T H :
WHEREAS, Malibu Centers, Inc., a Delaware corporation ("MCI"
or "BORROWER"), has entered into a Loan Agreement, dated as of June 27, 1997,
as amended by that certain Letter Agreement dated as of March 30, 1998, as
further amended by that certain Letter Agreement dated the date hereof (the
"LOAN AGREEMENT"), pursuant to which Lender made a $21,390,375 loan to Borrower
(the "LOAN");
WHEREAS, in connection with the Loan Agreement Guarantor
executed and delivered a certain Guaranty in favor of Lender, dated as of June
27, 1997 (the "ORIGINAL GUARANTY") as reaffirmed by the Amended and Restated
Loan Agreement dated as of May 8, 1998 (the "REAFFIRMATION", the Reaffirmation
and the Original Guaranty are hereinafter collectively referred to as the
"GUARANTY");
WHEREAS, MEI and MCI have each chosen to exercise each one's
respective option to extend the term of the MEI and MCI loans and to amend the
terms and provisions of the Guaranty.
NOW THEREFORE, in consideration of Ten Dollars ($10.00), the
receipt of which is hereby acknowledged, the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by each of the parties hereto, and in order to reaffirm and ratify
the Guaranty, Guarantor hereby acknowledges, agrees for itself, its successors
and assigns and confirms that all of the above recitals are true, correct and
complete, and Guarantor hereby covenants and agrees with Lender as follows:
1. References to the MEI Guaranty or any guaranty executed by MEI
or MEI Holdings, L.P. in any or all of the Loan Documents (as such term is
defined in the
2
Loan Agreement), including the MEI Loan Documents (as hereinafter defined)
shall be deemed to include references to such Guaranty as reaffirmed and
ratified by this Reaffirmation.
2. Guarantor acknowledges the continuing validity of its Guaranty
in favor of Lender and represents, warrants and confirms the non-existence of
any offsets, defenses or counterclaims to its obligations thereunder and waives
its right to assert any set-off, counterclaim or crossclaim of any nature
whatsoever in any litigation relating to its Guaranty or otherwise with respect
to the Obligations (provided, however that the foregoing shall not be deemed a
waiver of the right of Guarantor to assert any compulsory counterclaim
maintained in a court of the United States, or of the State of New York if such
counterclaim is compelled under local law or rule of procedure).
3. Guarantor reacknowledges and reaffirms all of the
representations, warranties, terms and obligations contained in the Guaranty,
which shall remain in full force and effect for all the obligations of
Guarantor now or hereafter owing to Lender pursuant to the terms and conditions
of the Guaranty and acknowledges, agrees, represents and warrants that no oral
or other agreements, understandings, representations or warranties exist with
respect to the Guaranty or with respect to the obligations of Guarantor
thereunder except those specifically set forth in this Reaffirmation.
4. Guarantor hereby acknowledges and affirms that the certain
loan between MEI Holdings, Inc. and Lender dated as of June 5, 1997 as amended
by that certain Letter Agreement dated as of June 27, 1997 as amended by that
certain Letter Agreement dated as of March 30, 1998, (the "ORIGINAL LOAN
AGREEMENT") as amended and restated by that certain Amended and Restated Loan
Agreement dated as of May 8, 1998 pursuant to which Lender made an additional
$10,000,000 loan to Borrower (the "AMENDED LOAN AGREEMENT") has been further
amended by that certain Letter Agreement dated as of the date hereof pursuant
to which Lender made an additional $1,034,759 loan to Borrower (the "MEI
LOAN"). Guarantor hereby acknowledges and affirms that the aggregate principal
amount of the MEI Loan is $21,034,759. Guarantor also acknowledges and affirms
that the current outstanding principal amount of the MEI Loan is $21,034,759.
5. Guarantor represents, warrants and confirms that no Material
Adverse Change has occurred since May 8, 1998, that there are no judgments
against it in any of the courts of the United States and that there is no
litigation, active, pending or to the
2
3
best of its actual knowledge, threatened, against it which might adversely
affect its ability to pay when due any amounts which may become payable in
respect of its Guaranty or the MEI Loan Agreement (hereinafter defined).
6. Guarantor restates all of the representations and warranties
contained in that certain Loan Agreement, dated June 27, 1997, between
Guarantor and Lender, as amended by that certain Letter Agreement dated as of
March 30, 1998, as amended and restated by that certain Amended and Restated
Loan Agreement dated as of May 8, 1998, as further amended by that certain
Letter Agreement dated the date hereof (the "MEI LOAN AGREEMENT") and
represents and warranties to Lender that all of the representations and
warranties contained in the MEI Loan Agreement are true and correct in all
material respects and that no Default (as defined in the MEI Loan Agreement) or
Event of Default (as defined in the MEI Loan Agreement) has occurred or is
continuing and that Guarantor is in compliance in all material respects with
all terms and conditions set forth in the MEI Loan Agreement and in each other
Loan Document (as defined in the MEI Loan Agreement, such documents the "MEI
LOAN DOCUMENTS") on its part to be observed or performed. The MEI Loan
Documents are not subject to any right of rescission, set-off, counterclaim or
defense by Guarantor, including the defense of usury, nor would the operation
of any of the terms of the MEI Loan Documents, or the exercise of any right
thereunder, render the MEI Loan Documents unenforceable except to the extent
such unenforceability may be the result of bankruptcy, insolvency,
reorganization or similar laws affecting rights of creditors generally or
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and Guarantor has not asserted any right of
rescission, set-off, counterclaim or defense with respect thereto.
7. This Reaffirmation may be executed in any number of duplicate
originals and each such duplicate original shall be deemed to constitute but
one and the same instrument.
8. If Guarantor fails to execute this Reaffirmation, or if such
execution shall prove ineffective for any reason, there shall be no implication
arising out of such failure to sign that Guarantor, is released from any of its
obligations under the Guaranty.
9. Guarantor acknowledges and agrees that it has entered into and
delivered this Reaffirmation of its own free will, voluntarily and without
coercion or duress of any kind, and has been represented in connection herewith
by counsel of its choice and is fully aware of the terms contained in this
Reaffirmation.
3
4
IN WITNESS WHEREOF, Guarantor has duly executed this Reaffirmation the
day and year first above written.
MEI HOLDINGS, L.P., a Delaware limited
partnership
By: MEI GENPAR, L.P.
its general partner
By: HH GenPar Partners, its general
partner
By: Hampstead Associates, Inc., a
managing general partner
By:
--------------------------------
Name:
Title:
4
