EXHIBIT 10.53
RENTAL INCOME GUARANTY AGREEMENT
BETWEEN XXXXX OPERATING PARTNERSHIP, L.P.
AND
FUND VIII AND FUND IX ASSOCIATES
RENTAL INCOME GUARANTY AGREEMENT
THIS RENTAL INCOME GUARANTY AGREEMENT is made and entered into as of the 18th
day of February, 1999, by and between XXXXX OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership ("Xxxxx OP"), and FUND VIII AND FUND IX ASSOCIATES,
a Georgia joint venture between Xxxxx Real Estate Fund VIII, L.P. and Xxxxx Real
Estate Fund IX, L.P. (the "Fund VIII-IX Joint Venture").
W I T N E S S E T H :
WHEREAS, the Fund VIII-IX Joint Venture is currently the landlord pursuant to
the terms of that certain Office Lease dated April 29, 1996 (the "Existing
Matsushita Lease"), with Matsushita Avionics Systems Corporation ("Matsushita")
pursuant to which Matsushita is the tenant currently occupying that certain
building owned by the Fund VIII-IX Joint Venture located at 00000 Xxxx Xxxxxxx,
Xxxxxx, Xxxxxxxxxx (the "Bake Parkway Building"); and
WHEREAS, Xxxxx OP desires to enter into a new lease with Matsushita for an
approximately 150,000 square foot building to be located on certain property in
Lots 8 and 9 of the Pacific CommerceCentre Park in Lake Forest, Orange County,
California (the "New Matsushita Lease"); and
WHEREAS, as a condition to entering into a New Matsushita Lease, Matsushita is
requiring that the Fund VIII-IX Joint Venture release it from its obligations as
tenant under the Existing Matsushita Lease and, in connection therewith, the
Fund VIII-IX Joint Venture has been requested to enter into and execute a Lease
and Guaranty Termination Agreement with Matsushita; and
WHEREAS, as a condition for the Fund VIII-IX Joint Venture releasing
Matsushita from its obligations as tenant under the Existing Matsushita Lease,
the Fund VIII-IX Joint Venture is requiring Xxxxx OP to guaranty that it will
receive rental income at least equal to the rent and building expenses it would
have received over the remaining term of the Existing Matsushita Lease, pursuant
to the terms and provisions of this Rental Income Guaranty Agreement.
NOW, THEREFORE, in consideration of the premises, and other good and valuable
consideration in hand paid, the receipt and sufficiency of which are hereby
acknowledged, and in consideration of the Fund VIII-IX Joint Venture executing
and entering into that certain Lease and Guaranty Termination Agreement with
Matsushita of even date herewith releasing Matsushita from its obligations as
tenant under the Existing Matsushita Lease, the parties hereto, intending to be
legally bound, hereby agree as follows:
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1. Rental Income Guaranty. In consideration for the release by the Fund
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VIII-IX Joint Venture of Matsushita from its obligations as tenant under the
Existing Matsushita Lease and the execution by the Fund VIII-IX-X Joint Venture
of that certain Lease and Guaranty Termination Agreement of even date herewith,
Xxxxx OP hereby guaranties and agrees to pay to the Fund VIII-IX Joint Venture
such amounts as may be necessary or required so that the Fund VIII-IX Joint
Venture shall continue to receive "Monthly Cash Flow," as defined below, at
least equal to the rent and building expenses that the Fund VIII-IX Joint
Venture would have received over the remaining term of the Existing Matsushita
Lease, calculated on a cumulative basis over the remaining term of the Existing
Matsushita Lease. As used herein, the term "Monthly Cash Flow" shall mean either
(i) the aggregate of all rents received on leases for leasing some or all of the
Bake Parkway Building, or (ii) in the case a joint venture with Xxxxx OP is
formed in the future, as contemplated by paragraph 3 below, the amount of cash
flow distributions received by the Fund VIII-IX Joint Venture from said new
joint venture. It is the intent of the foregoing rental income guaranty that the
release by the Fund VIII-IX Joint Venture of Matsushita's current lease
obligations under the Existing Matsushita Lease will not result in a direct
economic detriment to the Fund VIII-IX Joint Venture.
2. Agreement to Fund Deficit. In the event that the amount of "Monthly Cash
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Flow," as defined in paragraph 1 above, is not at least equal to the rent and
building expenses that the Fund VIII-IX Joint Venture would have received over
the remaining term of the Existing Matsushita Lease, calculated on a cumulative
basis over the remaining term of the Existing Matsushita Lease, Xxxxx OP shall
pay the Fund VIII-IX Joint Venture such amounts as may be required to make up
such deficit.
3. Potential Joint Venture. In the event that the Fund VIII-IX Joint Venture
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obtains one or more new tenants for the Bake Parkway Building and, in connection
therewith, additional capital is required for tenant improvements, brokerage
fees or other purposes, the Fund VIII-IX Joint Venture and Xxxxx OP may agree,
in the sole discretion of both parties and, in the case of Xxxxx OP, only after
approval of a majority of the Independent Directors of Xxxxx Real Estate
Investment Trust, Inc., the general partner of Xxxxx OP, to form a joint venture
to accomplish the funding of such amounts. In such event, it is anticipated that
distributions payable out of said joint venture would be made in accordance with
the relative capital contributions of the parties, provided that the guaranty of
Xxxxx OP that the Funds VIII-IX Joint Venture would continue to receive "Monthly
Cash Flow" at least equal to the rent and building expenses that the Fund VIII-
IX Joint Venture would have received over the remaining term of the Existing
Matsushita Lease, calculated on a cumulative basis, would continue and, as set
forth above, would instead be applicable to the amount of cash flow
distributions received by the Fund VIII-IX Joint Venture from said newly formed
joint venture.
4. Term. The term of this Agreement and Xxxxx OP's obligations hereunder
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shall terminate upon the earlier of: (i) the expiration of the remaining term of
the Existing Matsushita Lease, which expires in September 2003; or (ii) the
written consent of both parties hereto to terminate this Agreement.
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5. Amendment. This Agreement may not be amended or terminated orally, and no
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amendment, termination or attempted waiver shall be valid unless in writing and
signed by the party sought to be bound.
6. Notice. Any and all notices, offers, demands or elections required or
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permitted to be made under this Agreement ("notices") shall be in writing,
signed by the party giving such notice and delivered personally or sent by
registered or certified mail (with proper postage affixed) to the other party at
the principal place of business of the party to whom a notice is being given or
at such office address as the other party may hereafter designate in writing.
The earlier of the date of personal delivery or the date three days after the
mailing as set forth herein, as the case may be, shall be the date of such
notice.
7. Captions. Titles or captions of sections contained in this Agreement are
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inserted only as a matter of convenience and for reference and in no way define,
limit, extend or proscribe the scope of this Agreement or the intent of any
provision.
8. Counterparts. This Agreement may be executed in one or more counterparts,
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each of which shall be deemed an original, but all of which together shall
constitute one and the same Agreement.
9. Further Acts. Each party agrees to perform any further acts and to
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execute and deliver any instruments or documents that may be necessary or
reasonably deemed advisable to carry out the purposes of this Agreement.
10. No Third Party Beneficiary. The terms of this Agreement are intended to
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benefit only the parties hereto, and no third party shall have any right to
enforce any of the terms or provisions hereof.
11. Severability. If any part of this Agreement shall be held void, voidable
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or otherwise unenforceable by any court of law or equity, nothing contained in
this Agreement shall limit the enforceability of any other part.
12. Successors and Assigns. This Agreement shall be binding upon and shall
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inure to the benefit of the parties hereto and their respective successors and
assigns. No party shall have the right to assign this Agreement, or any
interest under this Agreement, without the prior written consent of the other
party.
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IN WITNESS WHEREOF, the parties hereto have entered into and executed this
Rental Income Guaranty Agreement as of the date first above written.
XXXXX OPERATING PARTNERSHIP, L.P.
A Delaware Limited Partnership
By: Xxxxx Real Estate Investment Trust, Inc.
A Maryland Corporation
(As General Partner)
By: /s/ Xxx X. Xxxxx, III
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Xxx X. Xxxxx, III
President
FUND VIII AND FUND IX ASSOCIATES
By: Xxxxx Real Estate Fund VIII, L.P.
A Georgia Limited Partnership
By: Xxxxx Partners, L.P.
A Georgia Limited Partnership
(As General Partner)
By: Xxxxx Capital, Inc.
A Georgia Corporation
(As General Partner)
By: /s/ Xxxxx X. Xxxxxx
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Title: Executive Vice President
By: /s/ Xxx X. Xxxxx, III
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Xxx X. Xxxxx, III
(As General Partner)
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By: Xxxxx Real Estate Fund IX, L.P.
A Georgia Limited Partnership
By: Xxxxx Partners, L.P.
A Georgia Limited Partnership
(As General Partner)
By: Xxxxx Capital, Inc.
A Georgia Corporation
(As General Partner)
By: /s/ Xxxxx X. Xxxxxx
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Title: Executive Vice President
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By: /s/ Xxx X. Xxxxx, III
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Xxx X. Xxxxx, III
(As General Partner)
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