EXHIBIT 10.17
GUARANTY
THIS GUARANTY ("GUARANTY") is executed as of August 18, 2006 by Triple Net
Properties, LLC, a Virginia limited liability company (singularly and
collectively referred to as "GUARANTOR"), for the benefit of LASALLE BANK
NATIONAL ASSOCIATION, a national banking association, its successors and assigns
("LENDER").
A. NNN Southpointe, LLC, a Delaware limited liability company ("BORROWER"),
are indebted to Lender with respect to a loan (the "LOAN") pursuant to that
certain Promissory Note dated of even date herewith, payable to the order of
Lender in the original principal amount of $9,146,000.00 (together with all
renewals, modifications, increases and extensions thereof, the "NOTE"), which is
secured by the liens and security interests of a Mortgage, Security Agreement
and Fixture Filing, of even date herewith (the "SECURITY INSTRMENT"), and
further evidenced, secured or governed by the other Loan Documents (as defined
in the Note). Capitalized terms used in this Guaranty and not otherwise defined
shall have the meanings assigned in the Security Instrument.
B. 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).
C. Guarantor will directly benefit from Lender's making the Loan to
Borrower.
D. Subsequent to the closing of the Loan, subject to the terms of PARAGRAPH
15 of the Security Instrument, Borrower may transfer undivided tenant in common
interests in the Property (provided, however, there may be no more than
thirty-five (35) tenants in common in the aggregate), including Borrower, with
the consent of Lender, as more specifically set forth in one or more Loan
Assumption, Ratification and Consent Agreement(s) by and between Borrower,
Guarantor, the tenant(s) in common and Lender executed concurrently herewith or
subsequently hereafter.
NOW, THEREFORE, as an inducement to Lender to make the Loan to Borrower
thereunder, and to extend such additional credit as Lender may from time to time
agree to extend under the Loan Documents, 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 1
NATURE AND SCOPE OF GUARANTY
1.1 GUARANTY OF OBLIGATIONS. Guarantor hereby irrevocably and
unconditionally guarantees to Lender (and its successors and assigns), jointly
and severally, 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, jointly and severally,
for the Guaranteed Obligations as a primary obligor, and that each Guarantor
shall fully perform, jointly and severally, each and every term and provision
hereof.
1.2 DEFINITION OF GUARANTEED OBLIGATIONS. As used herein, the term
"GUARANTEED OBLIGATIONS" shall mean the unpaid balance of the Loan (as defined
in the Note) in the event of (a) any fraud, willful misconduct or material
intentional misrepresentation by Borrower or any Guarantor in connection with
the Loan, (b) Borrower's failure to make the first scheduled monthly payment due
under the Note, (c) a breach of the terms of Paragraphs 15 or 16 of the Security
Instrument or (d) the voluntary filing by Borrower, or the filing against
Borrower by any Guarantor or any affiliate of any Guarantor, or an involuntary
bankruptcy filing against Borrower in which Borrower or Guarantor acts in
collusion with the filing party with respect to the filing, of any proceeding
for relief under any federal or state bankruptcy, insolvency or receivership
laws or any assignment for the benefit of creditors made by Borrower. In
addition, the Guaranteed Obligations shall also include and Guarantor shall also
be liable for, and shall indemnify, defend and hold Lender harmless from and
against, any and all loss, liability, damage, cost, expense, claim or other
obligation (including without limitation reasonable attorney's fees and costs of
defense) incurred or suffered by Lender and arising out of or in connection with
the matters listed in subparagraphs (i) through (vi) immediately below:
(i) any waste of the Property caused by act(s) or omission(s) of
Borrower, its agents, affiliates, officers and employees; or the
removal or disposal of any portion of the Property after an Event of
Default under the Loan Documents to the extent such Property is not
replaced by Borrower with like property of equivalent value, function
and design;
(ii) the misapplication, misappropriation or conversion of: (A)
any rents, security deposits, proceeds or other funds; (B) any
insurance proceeds paid by reason of any loss, damage or destruction
to the Property and not used by Borrower for restoration or repair of
the Property when and as permitted by the Loan Documents; and/or (C)
any awards or amounts received in connection with the condemnation of
all or any portion of the Property and not used by Borrower for
restoration or repair of the Property when and as permitted by the
Loan Documents;
(iii) Borrower's failure to deliver any security deposits
collected with respect to the Property to Lender or any other party
entitled to receive such security deposits under the Loan Documents
following an Event of Default; and any rents (including advanced or
prepaid rents), issues, profits, accounts or other amounts generated
by or related to the Property attributable to, or accruing after an
Event of Default, which amounts were collected by Borrower or any
other party on its behalf or for its benefit and not turned over to
the Lender or used to pay unaffiliated third parties for reasonable
and customary operating expenses and capital expenditures for the
Property, taxes and insurance premiums with respect to the Property or
any other amounts permitted or required to be paid under the Loan
Documents with respect to the Property;
(iv) the breach of the obligations set forth in that certain
Hazardous Substances Indemnification Agreement from Borrower and
Guarantor to Lender of even date herewith, as hereinafter amended, if
at all; and
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(v) the filing by Borrower, its members, managers, managing
members or vice presidents of any action to partition any portion of
the Property and any action to compel any sale thereof.
1.3 NATURE OF GUARANTY. This Guaranty is an irrevocable, absolute,
continuing guaranty of payment and performance, is joint and several and is 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 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 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 maturity or earlier by
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 such payment by Guarantor, first to (a) institute suit or
exhaust its remedies against Borrower or others liable on the Loan or the
Guaranteed Obligations or any other person, (b) enforce or exhaust any of
Lender's rights or remedies against any collateral which shall ever have been
given to secure the Loan, (c) enforce Lender's rights or remedies available to
Lender against any other guarantors of the Guaranteed Obligations, (d) join
Borrower or any others liable on the Guaranteed Obligations in any action
seeking to enforce this Guaranty, or (e) 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 Documents, and
hereby waives notice of (a) any loans or advances made by Lender to Borrower,
(b) acceptance of this
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Guaranty, (c) any amendment or extension of the Note or of any other Loan
Documents, (d) 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 Documents or in
connection with the Property, (e) the occurrence of any breach by Borrower or
default, (f) Lender's transfer or disposition of the Guaranteed Obligations, or
any part thereof, (g) sale or foreclosure (or posting or advertising for sale or
foreclosure) of any collateral for the Guaranteed Obligations to the extent
permitted by law, (h) protest, proof of non-payment or default by Borrower, or
(i) 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
Documents, 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 court costs
and reasonable attorneys' fees) incurred by Lender in the enforcement hereof or
the preservation of Lender's rights hereunder. The covenant contained in this
paragraph 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 rescind 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 DEFERMENT OF RIGHTS OF SUBROGATION, REIMBURSEMENT AND CONTRIBUTION.
(a) Notwithstanding any payment or payments made by any Guarantor
hereunder, no Guarantor will assert or exercise any right of Lender or of
such Guarantor against Borrower to recover the amount of any payment made
by such Guarantor to Lender by way of subrogation, reimbursement,
contribution, indemnity, or otherwise arising by contract or operation of
law, and such Guarantor shall not have any right of recourse to or any
claim against assets or property of Borrower, whether or not the
obligations of Borrower have been satisfied, all of such rights being
herein expressly waived by such Guarantor. Each Guarantor agrees not to
seek contribution or indemnity or other recourse from any other guarantor
so long as the Loan is outstanding. If any amount shall nevertheless be
paid to a Guarantor by Borrower or another Guarantor prior to payment in
full of the Obligations (hereinafter defined), such amount shall be held in
trust for the benefit of Lender and shall forthwith be paid to Lender to be
credited and applied to the Obligations, whether matured or unmatured. The
provisions of this paragraph shall survive the termination of this
Guaranty, and any satisfaction and discharge of Borrower by virtue of any
payment, court order or any applicable law.
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(b) Notwithstanding the provisions of SUBPARAGRAPH 1.10(A), each
Guarantor shall have and be entitled to (i) all rights of subrogation
otherwise provided by applicable law in respect of any payment it may make
or be obligated to make under this Guaranty and (ii) all claims it would
have against Borrower in the absence of SUBPARAGRAPH 1.10(A) and to assert
and enforce same, in each case on and after, but at no time prior to, the
date (the "SUBROGATION TRIGGER DATE") which is ninety-one (91) days after
the date on which all sums owed to Lender under the Loan Documents (the
"OBLIGATIONS") have been paid in full, if and only if (x) no Event of
Default of the type described in PARAGRAPH 20(F) of the Security Instrument
with respect to any other Guarantor has existed at any time on and after
the date of this Guaranty to and including the Subrogation Trigger Date and
(y) the existence of each Guarantor's rights under this SUBPARAGRAPH
1.10(B) would not make such Guarantor a creditor (as defined in the Code,
as such term is hereinafter defined) of Borrower or any other Guarantor in
any insolvency, bankruptcy, reorganization or similar proceeding commenced
on or prior to the Subrogation Trigger Date.
1.11 BANKRUPTCY CODE WAIVER. It is the intention of the parties that
Guarantor shall not be deemed to be a "creditor" or "creditors" (as defined in
Section 101 of the Bankruptcy Code) of Borrower, or any such guarantor, by
reason of the existence of this Guaranty, in the event that Borrower or any such
guarantor, becomes a debtor in any proceeding under the Bankruptcy Code, and in
connection herewith, Guarantor hereby waives any such right as a "creditor"
under the Bankruptcy Code. This waiver is given to induce Lender to make the
Loan evidenced by the Note to Borrower. After the Loan is paid in full and there
shall be no obligations or liabilities under this Guaranty outstanding, this
waiver shall be deemed to be terminated.
1.12 "BORROWER." The term "BORROWER" as used herein shall include any new
or successor corporation, association, partnership (general or limited), 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.
ARTICLE 2
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,
Note, Loan Documents, or 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.
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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 (a) the
Guaranteed Obligations, or any part thereof, exceeds the amount permitted by
law, (b) the act of creating the Guaranteed Obligations or any part thereof is
ultra xxxxx, (c) the officers or representatives executing the Note or the other
Loan Documents or otherwise creating the Guaranteed Obligations acted in excess
of their authority, (d) the Guaranteed Obligations violate applicable usury
laws, (e) 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, (f) 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 (g) the Note or any of the other Loan Documents 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.
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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 (a) to take or prosecute any
action for the collection of any of the Guaranteed Obligations, or (b) to
foreclose, or initiate any action to foreclose, or, once commenced, prosecute to
completion any action to foreclose upon any security therefor, or (c) 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. Any existing or future right of offset, claim or defense of
Borrower 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 Documents, 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 or not
contemplated, 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 3
REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into the Loan Documents and extend credit to
Borrower, Guarantor represents and warrants to Lender as follows:
3.1 BENEFIT. Guarantor has received, or will receive, direct or indirect
benefit from the making of this Guaranty with respect to the Guaranteed
Obligations.
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3.2 FAMILIARITY AND RELIANCE. Guarantor is familiar with, and has
independently reviewed books and records regarding, the financial condition of
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
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 its obligations, liabilities (including contingent liabilities)
and debts, and has and will have property and assets sufficient to satisfy and
repay its obligations and liabilities. There have been no (a) assignment made
for the benefit of Guarantor's creditors, (b) appointment of a receiver for
Guarantor or for Guarantor's properties, or (c) bankruptcy, reorganization, or
liquidation proceeding instituted by or against Guarantor.
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, deed of trust, 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 had the opportunity to examine the
Note and all of the Loan Documents.
3.8 LITIGATION. Except as otherwise disclosed to Lender, there are no
proceedings pending or, so far as Guarantor knows, threatened before any court,
governmental or administrative agency which, if decided adversely to Guarantor,
would materially adversely affect the financial condition of Guarantor or the
authority of Guarantor to enter into, or the validity or enforceability of this
Guaranty. In addition, except as otherwise disclosed to Lender, (a) there are no
outstanding judgment(s) against or relating to Guarantor, (b) Guarantor has not
(i) had any property foreclosed upon, (ii) given a deed in lieu of foreclosure,
or (iii) been involved in any criminal proceedings where Guarantor was the
defendant and (c) Guarantor has not defaulted on any loan or other indebtedness.
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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.
3.10 OFAC. Guarantor is not and will not become a person (individually, a
"PROHIBITED PERSON" and collectively "PROHIBITED PERSONS") listed on the
Specially Designated Nationals and Blocked Persons List maintained by the Office
of Foreign Asset Control, U.S. Department of the Treasury (the "OFAC LIST") or
otherwise subject to any other prohibitions or restriction imposed by laws,
rules, regulations or executive orders, including Executive Order No. 13224,
administered by OFAC (collectively the "OFAC RULES"). Guarantor represents and
covenants that it also (a) is not and will not become owned or controlled by a
Prohibited Person, (b) is not acting and will not act for or on behalf of a
Prohibited Person, (c) is not otherwise associated with and will not become
associated with a Prohibited Person, (d) is not providing and will not provide
any material, financial or technological support for or financial or other
service to or in support of acts of terrorism or a Prohibited Person. Guarantor
shall immediately notify Lender if Guarantor or any member, partner or
beneficial owner of Guarantor becomes a Prohibited Person or (i) is indicted on
or (ii) arraigned and held over on charges involving money laundering or
predicate crimes to money laundering. Guarantor will not enter into any
transaction or undertake any activities related to the Loan in violation of the
federal Bank Secrecy Act, as amended ("BSA"), 31 U.S.C. Section 5311, et seq. or
any federal or state laws, rules, regulations or executive orders, including,
but not limited to, 18 U.S.C. Sections 1956, 1957 and 1960, prohibiting money
laundering and terrorist financing (collectively "ANTI-MONEY LAUNDERING LAWS").
Guarantor shall (A) not use or permit the use of any proceeds of the Loan in any
way that will violate either the OFAC Rules or Anti-Money Laundering Laws, (B)
comply and cause all of its subsidiaries to comply with applicable OFAC Rules
and Anti-Money Laundering Laws, (C) provide information as Lender may require
from time to time to permit Lender to satisfy its obligations under the OFAC
Rules and/or the Anti-Money Laundering Laws and (D) not engage in or conspire to
engage in any transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the foregoing. Guarantor shall
immediately notify Lender upon learning (but in no event later than ten (10)
days after obtaining such knowledge) that any Tenant becomes a Prohibited Person
or (1) is convicted of, (2) pleads nolo contendere to, (3) is indicted on, or
(4) is arraigned and held over on charges involving money laundering or
predicate crimes to money laundering.
3.11 NET WORTH MAINTENANCE REQUIREMENTS. Guarantor hereby represents that
it has a net worth of at least $10,000,000.00 as of the date hereof. Guarantor
covenants and agrees that until such time as the Note is paid in full and all
obligations of Borrower and Guarantor under the Loan Documents are satisfied (a)
that Guarantor's net worth shall not fall below $10,000,000.00 for any sixty
(60) consecutive day period, and (b) at no time Guarantor's net worth fall below
$5,000,000.00. A breach of this provision or any of the other terms and
conditions set forth in this Guaranty shall be an "EVENT OF DEFAULT" under the
Loan Documents
3.12 FOREIGN STATUS. Guarantor is not or will not be, held, directly or
indirectly, to be a "foreign corporation," "foreign partnership," "foreign
trust," "foreign estate," "foreign person," "affiliate" of a "foreign person" or
a "United States intermediary" of a "foreign person" within the meaning of IRC
Sections 897 and 1445, the Foreign Investments in Real Property Tax Act of 1980,
the International Investment and Trade in Services Survey Act, the Agricultural
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Foreign Investment Disclosure Act of 1978, the regulations promulgated pursuant
to such acts or any amendments to such acts.
ARTICLE 4
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 to the extent the provisions of Paragraph 1.4
hereof are unenforceable. 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
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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 (a) exercise or enforce
any creditor's right it may have against Borrower, or (b) 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
interest, collateral rights, judgments or other encumbrances on assets of
Borrower held by Guarantor.
ARTICLE 5
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. Any notice, demand, statement, request or consent made
hereunder shall be in writing and shall be deemed to be received by the
addressee on the first business day after such notice is tendered to a
nationally recognized overnight delivery service or on the third day following
the day such notice is deposited with the United States Postal Service first
class certified mail, return receipt requested, in either instance, addressed to
the address, as set forth below, of the party to whom such notice is to be
given, or to such other address as either party shall in like manner designate
in writing. The addresses of the parties hereto are as follows:
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GUARANTOR:
Triple Net Properties, LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx/Xxxxxxx X. Xxxxxx
LENDER:
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Real Estate Capital Markets
Re: Southpointe Office Park, Xxxxx Xxxxx Office,
1030 Professional Building
5.3 GOVERNING LAW; JURISDICTION. THIS GUARANTY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES, AND THE APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA. GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT
OF COMPETENT JURISDICTION LOCATED IN XXX XXXX XX XXXXXXX XXX XXXXX XX XXXXXXXX
IN CONNECTION WITH ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY.
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. This Guaranty shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
assigns, legal representatives, heirs, executors, and administrators; provided,
however, that Guarantor may not, without the prior written consent of Lender,
assign any of its rights, powers, duties or obligations hereunder.
5.7 HEADINGS. The article, paragraph and subparagraph headings are for
convenience of reference only and shall in no way affect the interpretation of
this Guaranty.
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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 or acknowledgment of, or on behalf of, each party, or that
the signature of all persons required to bind any party, or the acknowledgment
of such 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, and the respective
acknowledgments of, each of the parties hereto. Any signature or acknowledgment
page to any counterpart may be detached from such counterpart without impairing
the legal effect of the signatures or acknowledgments thereon and thereafter
attached to another counterpart identical thereto except having attached to it
additional signature or acknowledgment pages.
5.10 FINANCIAL STATEMENTS: Guarantor shall furnish or cause to be furnished
to Lender the following:
(a) within sixty (60) days after the close of each fiscal year of
Guarantor, a balance sheet of Guarantor dated as of the close of such
fiscal year;
(b) within ten (10) days after its delivery to the Internal Revenue
Service, copies of any and all tax returns, requests for extension and
other similar items; and
(c) from time to time, such additional financial statements and
financial information as Lender shall reasonably require.
All balance sheets shall include, among other things, disclosure of all
contingent liabilities and changes in financial condition, together with such
supporting schedules and documentation as Lender shall require. All balance
sheets shall be certified by Guarantor. If audited financial statements are
required by Lender, Guarantor shall provide such audited financial statements to
Lender within the earlier to occur (i) 120 days after the end of Guarantor's
fiscal year or (ii) 20 days after Guarantor delivers its tax returns to the
Internal Revenue Service.
5.11 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.
5.12 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,
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RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR
AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THIS 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 WAIVES ITS RIGHT TO
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 SECURITY INSTRUMENT, OR THE OTHER LOAN
DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY,
INTENTIONALLY 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.
GUARANTOR ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF OF
LENDER HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY
JURY OR HAS TAKEN ANY ACTION WHICH IN ANY WAY MODIFIES OR NULLIFIES ITS EFFECT.
GUARANTOR ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO
THE LOAN, THAT LENDER HAS RELIED ON THIS WAIVER IN ENTERING INTO THE LOAN
DOCUMENTS AND THAT LENDER WILL CONTINUE TO RELY ON THIS WAIVER IN ITS FUTURE
DEALINGS. GUARANTOR FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED (OR HAS
HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS GUARANTY AND ANY
OTHER LOAN DOCUMENTS THAT GUARANTOR HAS ENTERED INTO AND IN THE MAKING OF THIS
WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT
HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK -
SIGNATURE PAGE FOLLOWS]
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EXECUTED as of the day and year first above written.
GUARANTOR:
Triple Net Properties, LLC,
a Virginia limited liability company
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Its: President
