CARVEOUT GUARANTY Project Commonly Known as
Project
Commonly
Known as
“International
Plaza”
THIS
CARVEOUT
GUARANTY (“Guaranty”) is made as of January 8, 2008, by THE TAUBMAN
REALTY GROUP LIMITED PARTNERSHIP, a Delaware limited partnership
(“Guarantor”), to and for the benefit of EUROHYPO AG, NEW YORK BRANCH, as
Agent for the lenders under the Loan Agreement described below (referred to
individually or collectively, as the context shall infer, as
“Lender”).
R
E C I
T A L S
A. Simultaneously
herewith, TAMPA WESTSHORE ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited
partnership (“Borrower”), entered into that certain Loan Agreement
(“Loan Agreement”), whereby the lending institution signatories thereto,
as Lender, agreed to make a secured loan (the “Loan”) available to
Borrower, in the maximum aggregate principal amount at any time outstanding
not
to exceed the sum of Three Hundred Twenty-Five Million Dollars ($325,000,000)
to
refinance the existing indebtedness
encumbering the shopping center known as International
Plaza, in Hillsborough County, Florida (the
“Project”). Capitalized terms used and not otherwise defined
in this Guaranty shall have the meanings given to them in the Loan
Agreement.
B. In
connection with
the Loan, Borrower has executed and delivered to Lender the Notes in favor
of
each Bank of even date herewith aggregating the principal amount of the Loan,
payment of which is secured by (i) an Amended and Restated Leasehold
Mortgage, Security Agreement, and Fixture Filing made by Borrower in favor
of
Agent for the benefit of Lender and creating a valid first lien on Borrower’s
interest in the Project, and (ii) the other Loan Documents.
C. Guarantor
will
derive material financial benefit from the Loan.
D. Lender
has relied
on the statements and agreements contained herein in agreeing to make the
Loan. The execution and delivery of this Guaranty by Guarantor is a
condition precedent to the making of the Loan by Lender.
AGREEMENTS
NOW,
THEREFORE,
intending to be legally bound, Guarantor, in consideration of the matters
described in the foregoing Recitals, which Recitals are incorporated herein
and
made a part hereof, and for other good and valuable consideration the receipt
and sufficiency of which are acknowledged, hereby covenants and agrees for
the
benefit of Agent and Lender and their respective successors, indorsees,
transferees, and assigns as follows:
1. Guarantor
absolutely, unconditionally, and irrevocably agrees to indemnify, defend and
hold Lender harmless from and against, any and all actual losses, damages,
costs, expenses (including reasonable attorneys’ fees and expenses), claims or
other obligations incurred or suffered by Lender to the extent the same are
due
to any of the following:
(i) the
breach of the
obligations set forth in the Indemnity from Borrower and Guarantor to Agent
of
even date herewith;
(ii) fraud
or
intentional misrepresentation by Borrower or Guarantor in connection with the
Loan;
(iii) (A)
the
misapplication or misappropriation by Borrower of any security deposits; (B)
any
insurance proceeds paid by reason of any loss, damage or destruction to the
Project and not used by Borrower for restoration or repair of the Project 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
Project and not used by Borrower for restoration or repair of the Project when
and as permitted by the Loan Documents;
(iv) any
intentional
physical waste of the Project (excluding alterations to the Project made in
good
faith) 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;
(v) Borrower’s
failure
to maintain insurance on the Project in accordance with the Loan Agreement,
unless (x) revenues from the Project are insufficient for such purpose and
(y) Borrower or Guarantor has notified Agent of such insufficiency at least
ten (10) days prior to the date such insurance premium is due;
(vi) Borrower’s
failure
to pay (x) real estate taxes on the Project or (y) a charge for labor
or materials contracted for by Borrower that results in a lien against the
Project, except to the extent revenues generated by the Project are
insufficient to pay such taxes or charges;
(vii) Borrower
committing
any criminal act; or
(viii) failure
of Borrower
to apply rents and other revenue during an Event of Default Period to amounts
payable to Agent (on behalf of Lender) under the Loan Documents, operating
expenses, and other costs of the Project in accordance with the terms of the
Loan Documents.
An
“Event
of
Default Period” shall mean any period during which an Event of Default has
occurred and is continuing, provided that if such Event of Default was of a
type
that occurs without Agent being required to issue notice to Borrower of the
Default giving rise thereto, then (unless such Event of Default is
(i) non-payment of the principal of the Loan at maturity,
(ii) non-payment of interest on the Loan when due, (iii) non-payment
of real estate taxes beyond the time they can be paid without penalty,
(iv) an Event of Default of which Borrower has actual knowledge and which
is likely to cause a material adverse change to the value or use of the
Collateral or the business or financial condition of Borrower or Guarantor,
or
(v) an Event of Default Period then exists by reason of another Event of
Default having occurred and continuing) such Event of Default Period
shall not commence until five (5) days after Agent has given written notice
to
Borrower of such Event of Default.
2. Guarantor
absolutely, unconditionally and irrevocably agrees to pay all of Borrower’s
indebtedness under the Loan Documents in the event:
(i) any
of the
following Transfers occurs in violation of the Loan Agreement (and without
the
consent of Lender): (x) Borrower grants any mortgage or deed of
trust (other than the Mortgage) with respect to the Project, (y) Borrower
sells or conveys all or substantially all of the Project or (z) a Change in
Control occurs.
(ii) (w)
any voluntary
bankruptcy, insolvency or receivership proceedings are filed by Borrower with
respect to Borrower, (x) any involuntary bankruptcy, insolvency or receivership
proceedings are filed against Borrower by Guarantor or any Affiliate of Borrower
or Guarantor, or (y) Borrower, Guarantor, or any Affiliate of Borrower or
Guarantor colludes or knowingly or intentionally cooperates with any third
party
to have an involuntary bankruptcy, insolvency or receivership proceedings
commenced against Borrower.
In
addition to the
foregoing, Guarantor agrees to fully and promptly pay any Enforcement Costs
(as
hereinafter defined in Section 6 hereof).
All
amounts due,
debts, liabilities and payment obligations described in Section 1
and Section 2 shall be hereinafter referred to together as the
“Guarantor’s Liabilities”.
3. Except
as otherwise
specifically set forth herein or in the other Loan Documents, Guarantor does
hereby waive (a) notice of acceptance of this Guaranty by Agent or Lender
and any and all notices and demands of every kind which may be required to
be
given by any statute, rule or law, (b) any defense, right of set-off or
other claim which Guarantor may have against Borrower or which Guarantor or
Borrower may have against Agent or Lender or the holder of the Notes,
(c) presentment for payment, demand for payment, notice of nonpayment or
dishonor, protest and notice of protest, diligence in collection and any and
all
formalities which otherwise might be legally required to charge Guarantor with
liability, and (d) any failure by Agent or Lender to inform Guarantor of
any facts Agent or Lender may now or hereafter know about Borrower, the Project,
the Loan, or the transactions contemplated by the Loan Agreement, it being
understood and agreed that neither Agent nor Lender has any duty so to inform
and that Guarantor is fully responsible for being and remaining informed by
Borrower of all circumstances bearing on the risk of nonpayment of the
Guarantor’s Liabilities. Credit may be granted or continued from time
to time by Agent or Lender to Borrower without notice to or authorization from
Guarantor, regardless of the financial or other condition of Borrower at the
time of any such grant or continuation. Neither Agent nor Lender
shall have any obligation to disclose or discuss with Guarantor its assessment
of the financial condition of Borrower. Guarantor acknowledges that
no representations of any kind whatsoever have been made to it by Agent or
Lender. No modification or waiver of any of the provisions of this
Guaranty shall be binding upon Agent or Lender except as expressly set forth
in
a writing duly signed and delivered on behalf of Agent or Lender.
4. Guarantor
further
agrees that Guarantor’s liability as guarantor shall not in any way be impaired
or affected by any renewals or extensions which may be made from time to time,
with or without the knowledge or consent of Guarantor of the time for payment
of
interest or principal under the Notes or by any forbearance or delay in
collecting interest or principal under the Notes, or by any waiver by Agent
or
Lender under the Loan Agreement, Mortgage or any other Loan Documents, or by
Agent’s or Lender’s failure or election not to pursue any other remedies it may
have against Borrower or Guarantor, or by any change or modification in the
Notes, Loan Agreement, Mortgage or any other Loan Document, or by the acceptance
by Agent or Lender of any additional security or any increase, substitution
or
change therein, or by the release by Agent or Lender of any security
or any withdrawal thereof or decrease therein, or by the application of payments
received from any source to the payment of any obligation other than the
Guarantor’s Liabilities, even though Agent or Lender might lawfully have elected
to apply such payments to any part or all of the Guarantor’s Liabilities, it
being the intent hereof that Guarantor shall remain liable as principal for
payment of the Guarantor’s Liabilities until the Guarantor’s Liabilities has
been paid in full, notwithstanding any act or thing which might otherwise
operate as a legal or equitable discharge of a surety. Guarantor
further understands and agrees that Agent or Lender may at any time enter into
agreements with Borrower to amend and modify the Notes, Loan Agreement, Mortgage
or other Loan Documents, and may waive or release any provision or provisions
of
the Notes, Loan Agreement, Mortgage and other Loan Documents or any thereof,
and, with reference to such instruments, may make and enter into any such
agreement or agreements as Agent or Lender and Borrower may deem proper and
desirable, without in any manner impairing or affecting this Guaranty or any
of
Lender’s rights hereunder or Guarantor’s obligations hereunder.
5. This
is an
absolute, present and continuing guaranty of payment and performance and not
of
collection. Guarantor agrees that this Guaranty may be enforced by
Agent or Lender without the necessity at any time of resorting to or exhausting
any other security or collateral given in connection herewith or with the Notes,
Loan Agreement, Mortgage or any of the other Loan Documents through foreclosure
or sale proceedings, as the case may be, under the Mortgage or otherwise, or
resorting to any other guaranties, and Guarantor hereby waives any right to
require Agent or Lender to join Borrower in any action brought hereunder or
to
commence any action against or obtain any judgment against Borrower or to pursue
any other remedy or enforce any other right. Guarantor further agrees
that nothing contained herein or otherwise shall prevent Agent or Lender from
pursuing concurrently or successively all rights and remedies available to
it at
law and/or in equity or under the Notes, Loan Agreement, Mortgage or any other
Loan Documents, and the exercise of any of its rights or the completion of
any
of its remedies shall not constitute a discharge of Guarantor’s obligations
hereunder, it being the purpose and intent of Guarantor that the obligations
of
Guarantor hereunder shall be absolute, independent and unconditional under
any
and all circumstances whatsoever. None of Guarantor’s obligations
under this Guaranty or any remedy for the enforcement thereof shall be impaired,
modified, changed or released in any manner whatsoever by any impairment,
modification, change, release or limitation of the liability of Borrower under
the Notes, Loan Agreement, Mortgage or other Loan Documents or by reason of
the
bankruptcy of Borrower or by reason of any creditor or bankruptcy proceeding
instituted by or against Borrower. This Guaranty shall continue to be
effective or be reinstated (as the case may be) if at any time payment of all
or
any part of any sum payable pursuant to the Notes, Loan Agreement, Mortgage
or
any other Loan Document is rescinded or otherwise required to be returned by
Agent or Lender upon the insolvency, bankruptcy, dissolution, liquidation,
or
reorganization of Borrower, or upon or as a result of the appointment of a
receiver, intervenor, custodian or conservator of or trustee or similar officer
for, Borrower or any substantial part of its property, or otherwise, all as
though such payment to Agent or Lender had not been made, regardless of whether
Agent or Lender contested the order requiring the return of such
payment.
6. If: (a) this
Guaranty is placed in the hands of an attorney for collection or is collected
through any legal proceeding; (b) an attorney is retained to represent
Agent (on behalf of itself and Lender) in any bankruptcy, reorganization,
receivership, or other proceedings affecting creditors’ rights and involving a
claim under this Guaranty; (c) an attorney is retained to provide advice or
other representation with respect to this Guaranty; or (d) an attorney is
retained to represent Agent (on behalf of itself and Lender) in any other
proceedings whatsoever in connection with this Guaranty, then Guarantor shall
pay to Agent upon demand all reasonable attorneys’ and paralegals’ fees, costs
and expenses, including, without limitation, court costs, filing fees, and
all
other costs and expenses incurred in connection therewith (all of which are
referred to herein as “Enforcement Costs”), in addition to all other
amounts due hereunder, regardless of whether all or a portion of such
Enforcement Costs are incurred in a single proceeding brought to enforce this
Guaranty as well as the other Loan Documents.
7. The
parties hereto
intend and believe that each provision in this Guaranty comports with all
applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion
of any provision or provisions, in this Guaranty is found by a court of law
to
be in violation of any applicable local, state or federal ordinance, statute,
law, administrative or judicial decision, or public policy, and if such court
should declare such portion, provision or provisions of this Guaranty to be
illegal, invalid, unlawful, void or unenforceable as written, then it is the
intent of all parties hereto that such portion, provision or provisions shall
be
given force to the fullest possible extent that they are legal, valid and
enforceable, that the remainder of this Guaranty shall be construed as if such
illegal, invalid, unlawful, void or unenforceable portion, provision or
provisions were not contained therein, and that the rights, obligations and
interest of Agent and Lender under the remainder of this Guaranty shall continue
in full force and effect.
8. TO
THE GREATEST
EXTENT PERMITTED BY LAW, GUARANTOR HEREBY WAIVES ANY AND ALL RIGHTS TO REQUIRE
MARSHALLING OF ASSETS BY LENDER OR AGENT. WITH RESPECT TO ANY SUIT,
ACTION OR PROCEEDINGS RELATING TO THIS GUARANTY (EACH, A “PROCEEDING”),
GUARANTOR, AGENT AND LENDER EACH IRREVOCABLY (A) SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS HAVING JURISDICTION
IN THE CITY OF NEW YORK AND STATE OF NEW YORK, AND (B) WAIVE ANY OBJECTION
WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY PROCEEDING BROUGHT
IN ANY SUCH COURT, WAIVE ANY CLAIM THAT ANY PROCEEDING HAS BEEN BROUGHT IN
AN
INCONVENIENT FORUM AND FURTHER WAIVE THE RIGHT TO OBJECT, WITH RESPECT TO SUCH
PROCEEDING, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH
PARTY. NOTHING IN THIS GUARANTY SHALL PRECLUDE LENDER FROM BRINGING A
PROCEEDING IN ANY OTHER JURISDICTION NOR WILL THE BRINGING OF A PROCEEDING
IN
ANY ONE OR MORE JURISDICTIONS PRECLUDE THE BRINGING OF A PROCEEDING IN ANY
OTHER
JURISDICTION.
9. Any
indebtedness of
Borrower to Guarantor now or hereafter existing is hereby subordinated to the
Guarantor’s Liabilities. Guarantor agrees that, until the entire
Guarantor’s Liabilities has been indefeasibly paid in full, Guarantor will not
seek, accept, or retain for its own account, any payment from Borrower on
account of such subordinated debt. Any payments to Guarantor on
account of such subordinated debt shall be collected and received by Guarantor
in trust for Lender and shall be paid over to Agent on account of the
Guarantor’s Liabilities without impairing or releasing the obligations of
Guarantor hereunder.
10. Any
amounts
received by Agent or Lender from any source on account of the Loan may be
applied by Agent or Lender toward payment of the indebtedness of Borrower to
Lender in such order of application as Agent may from time to time
elect. All sums derived from rents, revenues and proceeds of the
Project and of any other Collateral (including cash collateral and any proceeds
of letters of credit), including proceeds derived from foreclosure or other
realization upon the Collateral, shall for the purposes of calculating
Guarantor’s liability under this Guaranty be deemed first applied upon the
portion of Borrower’s indebtedness not subject to this Guaranty, with only any
balance remaining thereafter being credited against Guarantor’s obligations
under this Guaranty.
11. SO
LONG AS
LENDER HAS NOT BEEN INDEFEASIBLY PAID IN FULL, GUARANTOR WAIVES AND RELEASES
ANY
CLAIM (WITHIN THE MEANING OF 11 U.S.C. § 101) WHICH GUARANTOR MAY HAVE
AGAINST BORROWER ARISING FROM A PAYMENT MADE BY SUCH GUARANTOR UNDER THIS
GUARANTY AND AGREES NOT TO ASSERT OR TAKE ADVANTAGE OF ANY RIGHT TO PROCEED
AGAINST BORROWER FOR REIMBURSEMENT. IT IS EXPRESSLY UNDERSTOOD THAT
THE WAIVERS AND AGREEMENTS OF GUARANTOR SET FORTH ABOVE CONSTITUTE ADDITIONAL
AND CUMULATIVE BENEFITS GIVEN TO LENDER FOR ITS SECURITY AND AS AN INDUCEMENT
FOR ITS EXTENSION OF CREDIT TO BORROWER.
12. Any
notice, demand,
request or other communication which any party hereto may be required or may
desire to give hereunder shall be in writing and shall be deemed to have been
properly given (a) if hand delivered, when delivered; (b) if mailed by
United States Certified Mail (postage prepaid, return receipt requested,
addressed as set forth below) three (3) Business Days after mailing; or
(c) if by Federal Express or other reliable express courier service, on the
next Business Day after delivered to such express courier service, addressed
as
set forth below:
|
If
to
Guarantor:
|
|
c/o
The
Taubman Company LLC
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|
000
Xxxx Xxxx
Xxxx Xxxx, Xxxxx 000
|
|
Xxxxxxxxxx
Xxxxx, Xxxxxxxx 00000
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|
Attention: Xx.
Xxxxxx X. Xxxx
|
|
and
|
|
c/o
The
Taubman Company LLC
|
|
000
Xxxx Xxxx
Xxxx Xxxx, Xxxxx 000
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Xxxxxxxxxx
Xxxxx, Xxxxxxxx 00000
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Attention: Xx.
Xxxxx X. Xxxxxx
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With
a copy
to:
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|
Xxxxxxxx
Xxxxxx Xxxxxxxx and Xxxx LLP
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|
00000
Xxxxxxxx Xxxxxx, Xxxxx 000
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Xxxxxxxxxx
Xxxxx, Xxxxxxxx 00000
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Attention: Xxxxxx
X. Xxxx, Esq.
|
|
If
to Agent
or to Lender:
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|
x/x
Xxxxxxxx
XX, Xxx Xxxx Xxxxxx
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|
0000
Avenue
of the Xxxxxxxx, 00xx Xxxxx
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Xxx
Xxxx, Xxx
Xxxx 00000
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Attention: Head
of Portfolio Operations
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and
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Eurohypo
AG,
New York Branch
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1114
Avenue
of the Xxxxxxxx, 00xx Xxxxx
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Xxx
Xxxx, Xxx
Xxxx 00000
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|
Attention: Legal
Director
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and
|
|
Eurohypo
AG,
New York Branch
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|
000
Xxxxx
Xxxxxx Xxxxx, Xxxxx 0000
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|
Xxxxxxx,
Xxxxxxxx 00000
|
|
Attention: Xxxxxxx
Xxxxxx
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|
With
a copy
to:
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|
Xxxxxx
Xxxxxx
Rosenman LLP
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|
000
Xxxx
Xxxxxx Xxxxxx
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Xxxxxxx,
Xxxxxxxx 00000-0000
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|
Attention: Xxxx
X. Xxxxx, Esq.
|
or
at such other
address as the party to be served with notice may have furnished in writing
to
the party seeking or desiring to serve notice as a place for the service of
notice.
13. In
order to induce
Lender to make the Loan, Guarantor makes the following representations and
warranties to Agent and to Lender set forth in this Section, as of the date
hereof. Guarantor acknowledges that but for the truth and accuracy of
the matters covered by the following representations and warranties, Lender
would not have agreed to make the Loan.
(a) Guarantor
is duly
formed and validly existing under the laws of the state of its formation and
has
full power and authority to execute, deliver, and perform its covenants,
agreements, and obligations under this Guaranty. All necessary
actions have been taken and all necessary consents and approvals received so
that upon the execution and delivery to Agent by Guarantor of this Guaranty,
the
execution, delivery, and performance of this Guaranty will have been duly
authorized.
(b) Any
and all balance
sheets and financial statements, with respect to Guarantor which have heretofore
been given to Agent in connection with the Loan by or on behalf of Guarantor
fairly and accurately present the financial condition of Guarantor as of the
respective dates thereof and there has been no Material Adverse Change with
respect to Guarantor since the date of the latest statement delivered to
Agent.
(c) The
execution,
delivery, and performance by Guarantor of this Guaranty does not and will not
contravene or conflict with (i) any law, order, rule, regulation, writ,
injunction or decree now in effect of government, governmental instrumentality,
or court having jurisdiction over Guarantor, (ii) any contractual
restriction binding on or affecting Guarantor or Guarantor’s property or assets
which is likely to substantially impair Guarantor’s ability to fulfill its
obligations under this Guaranty, or (iii) the instruments creating any
entity holding title to any assets included in Guarantor’s financial
statements.
(d) This
Guaranty
creates legal, valid, and binding obligations of Guarantor enforceable in
accordance with its terms.
(e) Except
as disclosed
in writing to Agent or to Lender, there is no action, proceeding, or
investigation pending or, to the knowledge of any Guarantor, threatened against
any Guarantor, which, if adversely determined, would substantially impair
Guarantor’s ability to fulfill its obligations under this Guaranty.
(f) There
is no Event
of Default under the Loan Agreement or any other Loan Document concerning
Guarantor.
(g) All
statements set
forth in the Recitals are true and correct.
Guarantor
hereby
agrees to indemnify and hold Agent and Lender free and harmless from and against
all loss, cost, liability, damage, and expense, including attorney’s fees and
costs, which Agent or Lender may sustain by reason of the material inaccuracy
or
material breach of any of the foregoing representations and warranties as of
the
date the foregoing representations and warranties are made.
14. This
Guaranty shall
be binding upon the successors and assigns of Guarantor and shall inure to
the
benefit of Agent and Lender, and their respective successor and
assigns.
15. THIS
GUARANTY WAS
NEGOTIATED IN PART IN THE STATE OF NEW YORK, THE PROCEEDS OF THE LOAN WERE
DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A
SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION
EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS
GUARANTY, THE NOTES AND THE OTHER LOAN DOCUMENTS AND THE OBLIGATIONS ARISING
HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH,
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED
IN
SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE
LAW OF THE UNITED STATES OF AMERICA, EXCEPT AS EXPRESSLY SET FORTH IN THE OTHER
LOAN DOCUMENTS. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER
HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE
LAW
OF ANY OTHER JURISDICTION GOVERNS THIS GUARANTY, AND THIS GUARANTY SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
16. Guarantor
shall
furnish to Agent (and Agent shall promptly forward to each Lender) the financial
statements of Guarantor that are required under the Loan Agreement.
17. Any
and all amounts
required to be paid by Guarantor hereunder shall be paid to Agent in Dollars
at
such place as Agent may, from time to time, in writing appoint.
18. Agent
and Lender
shall be entitled to honor any request for Loan proceeds made by Borrower and
shall have no obligation to see to the proper disposition of such
advances. Guarantor agrees that its obligations hereunder shall not
be released or affected by reason of any improper disposition by Borrower of
such Loan proceeds.
19. This
Guaranty may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an
original and all of which taken together shall constitute one and the same
instrument.
20. GUARANTOR,
AGENT
AND LENDER HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT
OR
RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT
OF THIS GUARANTY AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
21. Guarantor
also
agrees to indemnify and hold harmless Agent and Lender from and against any
claim that any documentary or intangible tax is due and payable to the State
of
Florida in connection with the Loan or the execution, delivery or recording
of
the Loan Documents and to pay any such taxes (including penalties and interest)
that may be found to be owing. Borrower and/or Guarantor may contest
any determination that any such taxes are due, but shall pay any such taxes
(including penalties and interest) when legally required. This
paragraph shall survive repayment of the Loan.
22. Notwithstanding
anything to the contrary contained herein, no recourse under or upon any
indebtedness, representation, warranty, promise or other matter whatsoever
shall
be had against any of the constituent partners (direct or indirect) of Guarantor
or their successors or assigns (said constituent partners and their successors
and assigns, for purposes of this Section, hereinafter referred to, individually
and collectively, as the “TRG Partners”), and Agent and Lender expressly
waive and release, on behalf of themselves and their respective successors
and
assigns, all right to assert any liability whatsoever hereunder against, or
to
satisfy any claim or obligation arising thereunder against, any of the TRG
Partners or out of any assets of the TRG Partners, provided,
however, that nothing in this Section
shall be deemed
to (1) release Guarantor from any personal liability pursuant to, or from
any of its respective obligations hereunder, or from personal liability for
its
fraudulent actions or fraudulent omissions, (2) release any TRG Partner
from personal liability for its or his own fraudulent actions or fraudulent
omissions, (3) constitute a waiver of any obligation evidenced or secured
by, or contained herein or affect in any way the validity or enforceability
hereof or (4) limit the right of Agent to proceed against or realize upon
any and all of the assets of Guarantor (notwithstanding the fact that the TRG
Partners have an ownership interest in Guarantor and, thereby, an interest
in
the assets of Guarantor) or to name Guarantor (or, to the extent that the same
are required by applicable law or are determined by a court to be necessary
parties in connection with an action or suit against Guarantor or any of the
TRG
Partners) as a party defendant in, and to enforce against all or any part of
the
assets of Guarantor any judgment obtained with respect to, any action or suit
hereunder so long as no judgment shall be taken (except to the extent taking
a
judgment is required by applicable law or determined by a court to be necessary
to preserve Lender’s rights against Borrower, but not otherwise) or shall be
enforced against the TRG Partners, their successors and assigns, or their
assets.
23. Guarantor
agrees
that so long as any of the Notes remain unpaid, or any other amount is owing
by
Borrower or Guarantor to Agent or Lender hereunder or under any other Loan
Document, Guarantor shall not merge or consolidate with any person or entity
(unless Guarantor is the surviving entity), or sell, assign, lease, or otherwise
dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired).
[REMAINDER
OF PAGE
INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF,
Guarantor has caused this Guaranty to be executed as of the date first written
above.
Guarantor:
THE
TAUBMAN
REALTY GROUP LIMITED PARTNERSHIP
By: /s/
Xxxxxx X. Xxxx
Name: Xxxxxx
X. Xxxx
Its: Authorized
Signatory
Accepted
for
purposes of
Agreeing
to
Section 20:
EUROHYPO
AG,
NEW
YORK
BRANCH,
as
Agent
By:/s/
Xxxxx
Xxxxxx
Name:
Xxxxx
Xxxxxx
Title:
Director
By:/s/
Xxxxxxx
Xxx
Name:
Xxxxxxx
Xxx
Title:
Director
