GUARANTY OF COMPLETION AND PAYMENT Exhibit 10.5
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THIS GUARANTY OF COMPLETION AND PAYMENT (this "Guaranty") is made and
entered into as of the 17th day of October, 1996, by (i) HOMESTEAD VILLAGE
INCORPORATED ("Guarantor"), to and for the benefit of (ii) SECURITY CAPITAL
PACIFIC TRUST, a Maryland real estate investment trust ("PTR").
RECITALS
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A. Pursuant to that certain Funding Commitment Agreement (the "Funding
Agreement") dated as of the date hereof, by and among Guarantor, PTR and PTR
Homestead Village Limited Partnership, a Delaware limited partnership, PTR has
agreed to loan up to an aggregate maximum amount of $221,333,620 (the "Loan") to
Guarantor and/or any Subsidiary (as such term is in the Funding Agreement) for
the purpose of acquiring and developing the Projects (as defined in the Funding
Agreement). The Loan is (i) evidenced by certain Amended and Restated
Promissory Notes in the aggregate face amount of the Loan (which notes, together
with any other notes delivered from time to time to evidence the Loan, and all
amendments and restatements to any of such notes are collectively called the
"Notes"), and (ii) secured by various Security Documents (as defined in the
Funding Agreement).
B. All terms used herein, but not defined herein, shall have the meanings
ascribed to them in the Funding Agreement.
C. PTR is willing to advance the funds of the Loan pursuant to the
Funding Agreement only on condition that the Guarantor deliver this Guaranty.
D. Guarantor has a direct or indirect financial interest in each
Subsidiary, and is therefore benefitted by the making of the Loan.
AGREEMENT
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NOW, THEREFORE, in consideration of these Recitals, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby covenants and agrees as follows:
1. Recitals. The foregoing Recitals are hereby incorporated herein and
made a substantive part hereof.
2. Completion Guaranty.
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(a) Construction Matters. So long as PTR disburses the proceeds of
the Loan in accordance with the terms and provisions of the Funding Agreement,
Guarantor irrevocably and unconditionally fully guarantees to PTR the following:
(a) payment of all costs of the design, engineering and construction of each
Project (including the furnishing thereof) undertaken by a Subsidiary; and (b)
completion of construction of each Project undertaken by a Subsidiary (including
the furnishing thereof) substantially in accordance with the Plans for such
Project and in compliance with applicable codes, ordinances, laws, statutes,
rules and regulations of any governmental authority having jurisdiction.
(b) Excess Costs. In the event that the actual cost of the design,
engineering and construction of a Project undertaken by a Subsidiary exceeds the
amount available for such Project from the Loan proceeds, including any Owner's
Contingency in the Project Budget for such Project, Guarantor shall pay such
costs ("Excess Costs") as and when they become due and payable. It is understood
that Guarantor's obligation under the preceding sentence is not subject to the
subject Subsidiary's initial obligation to do so pursuant to the terms of the
Funding Agreement.
(c) Completion. For the purposes of this Guaranty, the construction
of the Improvements shall be deemed to have been completed at such time as Final
Completion has occurred pursuant to the terms of the Funding Agreement.
(d) Indemnification of PTR and Trustees. Guarantor shall indemnify
and hold PTR, the trustees under the Security Documents executed by a Subsidiary
(collectively, the "Trustees") and their respective agents, officers and
employees harmless from and against all claims, expenses, loss and liability of
any and every kind other than those arising out of the gross negligence or
willful misconduct of PTR, including, without limitation, attorneys' fees,
arising out of or in connection with the design, engineering, construction and
completion of each Project and, so long as PTR disburses the proceeds of the
Loan in accordance with the terms and provisions of the Funding Agreement, shall
protect each Project from any mechanic's, materialmen's or similar liens that
may be filed against such Project. Guarantor shall not have any right of
recourse against PTR, Trustees or their respective agents and employees by
reason of any action such parties may take or omit to take under the provisions
of this Guaranty or under the provisions of the Funding Agreement.
(e) Completion of Construction. If Guarantor shall fail to cause
Final Completion of a Project undertaken by a Subsidiary with Loan Proceeds to
be achieved, or shall otherwise fail to pursue diligently the performance of the
obligations of Guarantor hereunder, immediately upon receipt of a written demand
given to Guarantor by PTR in the manner herein provided, PTR, at its option,
shall have the right to cause the completion of the subject Project either
before or after or simultaneously with any other remedy of PTR against Guarantor
and/or such Subsidiary, with such changes or modifications in the Plans and in
any contracts and
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subcontracts relating thereto which PTR deems reasonably necessary, and to
expend such sums as PTR deems proper in its sole and unreviewable discretion in
order to so complete the same and to pay costs of construction of the same
theretofore incurred by the subject Subsidiary and/or Guarantor, and Guarantor
shall pay all such amounts (which constitute Excess Costs) with interest thereon
at the default rate provided for in the Notes calculated from the date of
Guarantor's default, to PTR upon demand. So long as all conditions precedent to
PTR's obligations to make disbursements under the Funding Agreement are
satisfied, PTR shall continue to make disbursements in the manner specified in
the Funding Agreement.
(f) No Release. The liability of Guarantor shall not be terminated,
affected, impaired or reduced in any way by any delay, failure or refusal of PTR
to exercise any right or remedy PTR may have against any person, including,
without limitation, any Subsidiary, any general contractor, any subcontractor or
any other guarantors liable for all or any part of the costs of construction of
a Project guaranteed herein by Guarantor, or by the release of any Subsidiary
from performance or observance of any of the agreements, covenants, terms or
conditions contained in the Funding Agreement, by the operation of law or
otherwise, whether made with or without notice to Guarantor.
(g) Termination of Completion Guaranty. Satisfaction by Guarantor of
any liability hereunder at any one time with respect to payment of any amounts
required under this Guaranty shall not discharge Guarantor with respect to any
further amounts that may be required hereunder at any other time for the subject
Project or any other Project, it being the intent hereof that this Guaranty and
the obligations of Guarantor under this Guaranty shall be continuing and
irrevocable until the date on which Final Completion of all Subsidiary Projects
funded under the Funding Agreement has occurred and all costs and expenses
incurred in connection therewith have been paid in full (the "Completion
Termination Date"). Further, if at any time all or any part of any payment made
by Guarantor under or with respect to this Guaranty is or must be rescinded or
returned for any reason whatsoever (including, but not limited to, the
insolvency, bankruptcy or reorganization of a Subsidiary or Guarantor), then
Guarantor's obligations hereunder shall, to the extent of the payment rescinded
or returned, be deemed to have continued in existence, notwithstanding such
previous payment made by Guarantor or receipt of payment by PTR, and Guarantor's
obligations hereunder shall continue to be effective or be reinstated, as the
case may be, as to such payment, all as though such previous payment by
Guarantor had never been made.
(h) Modifications by PTR. Guarantor acknowledges that any Subsidiary
may (and/or PTR may at any time enter into agreements with any Subsidiary
receiving Loan proceeds to) amend, modify or change the Plans applicable to such
Subsidiary's Project, any contracts or subcontracts relating to the Project
and/or the Funding Agreement or any other documents evidencing, securing or
relating to the Loan, or may at any time waive or release any provision or
provisions thereof and, with reference thereto, may make and enter into all such
agreements as such Subsidiary and/or PTR may deem proper or desirable, without
any notice or further
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assent from Guarantor, and without in any manner impairing or affecting this
Guaranty or any of PTR's rights hereunder or any of Guarantor's obligations
hereunder.
3. Guaranty of Payment. Guarantor also irrevocably and unconditionally
fully guarantees to PTR to pay and perform when due the Liabilities.
"Liabilities" shall mean all obligations of the Subsidiaries to PTR of any kind
whatsoever, howsoever created, arising or evidenced, whether pursuant to a
covenant, representation, warranty, indemnity or other agreement of kind,
whether direct or indirect, absolute or contingent, now or hereafter existing,
or due or to become due, under the Notes or any of the other Loan Documents.
Obligations under the Loan Documents shall include the obligation to pay
interest under the Notes executed by any Subsidiary, including interest at the
post-maturity or default rate.
4. Nature of the Guaranty. This Guaranty shall be direct, immediate, and
primary, and is one of payment and performance and not just collection. PTR
shall be under no obligation to pursue its rights against a Subsidiary or any
other right or remedy available to it or pursue any collateral or security
before proceeding against Guarantor. Guarantor expressly waives all rights it
may have now or in the future under any statute, or at common law, or at law or
in equity, or otherwise, including, without limitation, any rights Guarantor may
have to compel PTR to proceed in respect of the Guarantor's obligation hereunder
against any Subsidiary or any other party or against any security for the
payment or performance of Guarantor's obligation hereunder before proceeding
against, or as a condition to proceeding against, Guarantor. All payments made
pursuant to this Guaranty shall be made in United States currency to PTR in
immediately available funds, without reduction for any recoupment, set-off,
counterclaim or defense based upon any claim that Guarantor may have against any
Subsidiary. The obligations and liabilities of Guarantor pursuant to this
Guaranty shall be unconditional, irrespective of the genuineness, validity,
priority, regularity or enforceability of the Notes or the Loan Documents or any
other circumstance which might otherwise constitute a legal or equitable
discharge of a surety or guarantor.
5. Rights of PTR to Deal With Subsidiaries and Guarantor. Guarantor
hereby assents to any and all terms and agreements between PTR and any
Subsidiaries receiving Loan proceeds or between PTR and any person, including
Guarantor, who guarantees in whole or in part the payment or performance of any
Subsidiary's obligations with respect to PTR, and all amendments and
modifications thereof, whether presently existing or hereafter made and whether
oral or in writing. PTR may, without compromising, impairing, diminishing, or
in any way releasing Guarantor from any obligations hereunder and without
notifying or obtaining the prior approval of Guarantor at any time or from time
to time: (a) waive or excuse a default or defaults by a Subsidiary or any
person who has guaranteed in whole or in part any of such Subsidiary's
obligations, or delay in the exercise by PTR of any or all of PTR's rights or
remedies with respect to such default or defaults; (b) grant extensions of time
for payment or performance by a Subsidiary or any person who has guaranteed in
whole or in part any of such Subsidiary's obligations, including Guarantor; (c)
release, substitute, exchange, surrender or add collateral of a Subsidiary or of
any person who has guaranteed in whole or in part any of such
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Subsidiary's obligations, or waive, release or subordinate, in whole or in part,
any lien or security interest held by PTR on any real or personal property
securing payment or performance, in whole or in part, of a Subsidiary's
obligations, including Guarantor; (d) release a Subsidiary or any person who has
guaranteed in whole or in part any of such Subsidiary's obligations, including
Guarantor; (e) apply payments made by a Subsidiary, or by any person who has
guaranteed in whole or in part, any of such Subsidiary's obligations, including,
without limitation, Guarantor, to any sums owed by a Subsidiary to PTR, in any
order or manner, or to any specific account or accounts, as PTR may elect; (f)
modify, change, renew, extend or amend in any respect PTR's agreement with a
Subsidiary or any person who has guaranteed in whole or in part any of such
Subsidiary's obligations, including Guarantor, or any documents, instrument or
writing embodying or reflecting the same.
6. Waivers by Guarantor. Guarantor waives (a) any and all notices
whatsoever with respect to this Guaranty or with respect to any Subsidiary's
obligations, including, but not limited to, notice of: (i) PTR's acceptance
hereof or PTR's intention to act, or PTR's action, in reliance hereon; (ii) the
present existence or future incurring of any Subsidiary's obligations or any
terms or amounts thereof or any change therein; (iii) default by a Subsidiary or
any surety, pledgor, grantor of security, guarantor or other person who has
guaranteed or secured in whole or in part such Subsidiary's obligations,
including Guarantor; and (iv) the obtaining or release of any guaranty or surety
agreement (in addition to this Guaranty), pledge, assignment or other security
for any of a Subsidiary's obligations; and (b) (i) presentment and demand for
payment of any sum due from a Subsidiary or any person who has guaranteed in
whole or in part any of such Subsidiary's obligations, including Guarantor, and
protest of nonpayment; (ii) notice of default by a Subsidiary or any person who
has guaranteed in whole or in part any of such Subsidiary's obligations and
notice of any extension of time for payment or performance under the Note and
any other indulgences granted by PTR to a Subsidiary; (iii) demand for
performance by a Subsidiary or any person who has guaranteed in whole or in part
any of such Subsidiary's obligations, including Guarantor; (iv) to the fullest
extent legally possible, any and all defenses which may now or hereafter exist
by virtue of any statutes of limitations, valuation, marshaling, forbearance,
redemption, exemption, appraisement, stay or moratorium laws or other similar
laws now or hereafter in effect; and (v) all other notices and demands otherwise
required by law which Guarantor may lawfully waive. PTR may (without notice to
or consent of the Guarantor, and with or without consideration) release,
compromise, settle with or proceed against Guarantor without releasing,
lessening or affecting the obligations hereunder or under any of the documents
relating to the Loan. It is the intention hereof that Guarantor shall remain
liable as a principal until payment in full of all indebtedness and performance
and observance of the terms, covenants and conditions of the Notes and of each
other Loan Document to be performed and observed by any Subsidiaries,
notwithstanding any act, omission or thing which might otherwise operate as a
legal or equitable discharge of Guarantor. Guarantor shall be responsible for
obtaining information regarding its Subsidiaries, including, but not limited to,
any changes in the business or financial condition of any Subsidiaries, and PTR
shall have no duty to notify Guarantor of any such information.
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7. Collection Expenses. Guarantor shall pay to PTR, upon demand, all
losses, costs and expenses, including attorneys' fees, if collection is referred
to an attorney, that may be incurred by PTR in attempting to cause satisfaction
of Guarantor's liability under this Guaranty.
8. Invalidity of Any Part. If any provision or part of any provision of
this Guaranty shall for any reason be held invalid, illegal or unenforceable in
any respect, such other provisions or the remaining part of any effective
provisions of this Guaranty shall be construed as if such invalid, illegal or
unenforceable provision or part thereof had never been contained herein, but
only to the extent of its invalidity, illegality or unenforceability.
9. Impairment of Subrogation Rights. Guarantor agrees that it shall have
no right of subrogation whatsoever with respect to the Notes, or to the monies
due or unpaid thereon, or to any collateral securing the same, unless and until
PTR shall have received payment in full of all sums due under the Notes and the
Loan Documents. Guarantor waives and releases PTR from any damages which
Guarantor may incur as a result of any intentional or unintentional or negligent
action or inaction of PTR impairing, diminishing or destroying any rights of
subrogation which Guarantor may have upon payment of any of the Subsidiaries'
obligations. Guarantor further agrees that all the present and future
indebtedness to Guarantor of any Subsidiary receiving Loan proceeds shall be and
hereby is subordinated, assigned and transferred to PTR. Notwithstanding any
other provision of this Guaranty to the contrary, if Guarantor is or becomes an
"insider" (as defined in Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code) with
respect to its Subsidiaries or any other guarantor, Guarantor irrevocably waives
any and all rights of contribution, indemnification, reimbursement or any
similar right against any of its Subsidiaries and/or such other guarantor
(including any right of subrogation), whether such rights arise under an express
or implied contract or by operation of law; it being the specific intention of
this sentence that in any bankruptcy or insolvency proceeding filed by or
against such Subsidiary or any other guarantor, no guarantor, including the
Guarantor, shall be deemed a "creditor" (as defined in Section 101 of the United
State Bankruptcy Code) of any Subsidiary or any other guarantor by reason of the
existence of this Guaranty with the result that the exercise of such rights
would require PTR to return to the bankruptcy estate of any Subsidiary or any
other guarantor any payments received by PTR on account of the obligations
guaranteed hereby. Subject to the limitations set forth in the preceding
sentence, until all of the obligations guaranteed hereby have been duly and
punctually performed to the satisfaction of PTR, Guarantor shall not be
subrogated to any right of PTR against any Subsidiary, any other guarantor or
any collateral, and any moneys, property or other consideration received at any
time by Guarantors from any Subsidiary in connection with such rights of
subrogation prior to the performance by such Subsidiary of all the obligations
guaranteed hereby shall be held in trust for PTR and shall be paid or
transferred to PTR upon demand therefor. Guarantor agrees not to assert any
right of contribution against any other guarantor of the obligations guaranteed
hereby in any manner that is inconsistent with the preceding two sentences.
10. Remedies Cumulative. Each right, power and remedy of PTR under this
Guaranty, the Note, the Loan Documents or any other agreement or instrument
signed by a
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Subsidiary or Guarantor or under applicable laws shall be cumulative and
concurrent, and the exercise of any one or more of them shall not preclude the
simultaneous or later exercise by PTR of any or all such other rights, powers or
remedies at law or in equity or under this Guaranty. No failure or delay by PTR
to insist upon the strict performance of any one or more of its rights, powers
or remedies consequent upon a breach thereof or default hereunder shall
constitute a waiver thereof, or preclude PTR from exercising any such right,
power or remedy. By accepting partial payment on this Guaranty, PTR shall not
be deemed to have waived the right either to require prompt payment when due and
payment of all other amounts payable under this Guaranty or to exercise any
rights and remedies available to it in order to collect all such other amounts.
No modification, change, waiver or amendment of this Guaranty shall be deemed to
be made by PTR unless in writing and signed by PTR, and each such waiver, if
any, shall apply only with respect to the specific instance involved and only to
the extent expressly provided therein.
11. No Action By PTR to Impair Enforcement of Rights Hereunder. No act of
commission or omission of any kind or at any time upon the part of PTR in
respect of any matter whatsoever, shall in any way affect or impair its right to
enforce any right, power or benefit under this Guaranty, and no set-off,
counterclaim, reduction or diminution of an obligation, or any defense of any
kind or nature which Guarantor has or may have against PTR, shall be available
to Guarantor or against XXX.
00. Limitation of Liability of Subsidiary Not to Affect Liability of the
Guarantor Hereunder. Without limiting the foregoing, it is specifically
understood that any impairment, modification, limitation or discharge of the
liability of any Subsidiary under any Note or any other Loan Document arising
out of or by virtue of any act of bankruptcy, or any arrangement, reorganization
or similar proceeding for relief of debtors under Federal or state law initiated
by or against such Subsidiary shall not affect, impair, modify, limit or
discharge the liability of Guarantor hereunder in any manner whatsoever, and
this Guaranty shall remain and continue in full force and effect. It is the
intent and purpose of this Guaranty that Guarantor shall and do hereby waive all
rights and benefits which might accrue to them by reason of any such
proceedings, and Guarantor agrees that it shall be liable for the full amount of
the obligations guaranteed by them hereby, irrespective of, and without regard
to, any impairment, modification, limitation or discharge of the liability of
such Subsidiary under such Note or any or all of the Loan Documents that may
result from any such proceedings.
13. Independent Obligations of Guarantor. The obligations of Guarantor
hereunder are irrevocable and are independent of the Loan or other obligations
of any Subsidiary, and a separate action or actions may be brought and
prosecuted against Guarantor, regardless of whether any action is brought
against such Subsidiary or whether such Subsidiary is joined in any such action
or actions.
14. Choice of Law; Consent to Jurisdiction; Venue. This Guaranty, having
been executed, sealed and delivered in the State of New Mexico shall be
construed, interpreted and
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enforced under the internal laws (and not the laws pertaining to conflicts or
choice of law) of the State of New Mexico. Should any provision of this
Guaranty require judicial interpretation, it is agreed that the court
interpreting or considering same shall not apply the presumption that the terms
hereof shall be more strictly construed against a party by reason of the rule or
conclusion that a document should be construed more strictly against the party
who itself or through its agent prepared the same, it being agreed that all
parties hereto have participated in the preparation of this Guaranty and that
each party consulted (or had the opportunity to consult) legal counsel before
the execution of this Guaranty. Guarantor consents to the jurisdiction of the
courts of any county in the State of New Mexico selected by PTR and to the
jurisdiction of any United States District Court in the State of New Mexico, if
jurisdiction exists.
15. Counterparts. This Guaranty may be executed in any number of
counterparts, each of which shall be considered an original for all purposes;
provided, however, that all such counterparts shall together constitute one and
the same instrument.
16. Binding Nature. This Guaranty shall inure to the benefit of, and be
enforceable by, PTR and its successors and assigns, and shall be binding upon
and enforceable against the Guarantor and its legal and personal
representatives, heirs, successors and assigns. This Guaranty may be assigned
by PTR, or any other holder of the Note at any time or from time to time.
17. Joint and Several Nature. In the event there exists more than one
Guarantor, all obligations, responsibilities, warranties, representations and
liabilities hereunder shall be joint and several.
18. Notices. Any and all notices or other communications hereunder shall
be deemed to have been duly given if in writing and if transmitted by hand-
delivery, Federal Express, Express Mail or other nationally recognized overnight
courier or by certified mail, return receipt requested, as follows:
To PTR: Security Capital Pacific Trust
0000 Xxxxxx Xxxxxx Xxxxxx
Xx Xxxx, Xxxxx 00000
Attention: C. Xxxxxx Xxxxxxxxxxx
To Guarantor: Homestead Village Incorporated
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Xx.
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With a copy to: Xxxxx, Xxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Xxxxxxxx Xxxxxx, Esquire
or to such other address as either party may furnish to the other by notice in
accordance with this Paragraph 18.
19. Tense; Gender. As used herein, the plural shall refer to and include
the singular, and the singular the plural, and the use of any gender shall
include and refer to any other gender.
20. Time of Essence. Guarantor and PTR expressly agree that time shall be
of the essence in the performance of obligations of Guarantor under this
Guaranty.
21. Entire Agreement. This Guaranty sets forth the final and entire
agreement between the parties hereto with respect hereto and is intended to be
an integration of all prior negotiations and understandings. PTR and Guarantor
and their respective agents shall not be bound by any terms, conditions,
statements, warranties or representations, oral or written, express or implied,
not set forth or incorporated herein.
22. WAIVER OF JURY TRIAL, ETC. GUARANTOR AND PTR (BY ITS ACCEPTANCE
HEREOF) WAIVES ANY RIGHT TO A TRIAL BY JURY OF ANY OR ALL ISSUES ARISING IN ANY
ACTION OR PROCEEDING BETWEEN GUARANTOR AND PTR OR THEIR SUCCESSORS OR ASSIGNS,
UNDER OR CONNECTED WITH THE LOAN, THIS GUARANTY OR ANY OF ITS PROVISIONS OR ANY
OF THE LOAN DOCUMENTS, AND AGREES THAT THE OBLIGATION EVIDENCED BY THIS GUARANTY
IS AN EXEMPTED TRANSACTION UNDER THE TRUTH-IN-LENDING ACT, 15 U.S.C. SECTION
1601, ET SEQ. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY
PTR AND GUARANTOR, AND GUARANTOR ACKNOWLEDGES THAT NEITHER PTR NOR ANY PERSON
ACTING ON BEHALF OF PTR HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS
WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT.
GUARANTOR FURTHER ACKNOWLEDGES THAT IT HAS BEEN OR HAD THE OPPORTUNITY TO BE
REPRESENTED IN THE SIGNING OF THIS GUARANTY 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.
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IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty of Completion
and Payment as of the date first set forth above.
GUARANTOR:
HOMESTEAD VILLAGE INCORPORATED
ATTEST:
/s/ Xxxxxxx X. Xxxxx By:/s/ Xxxxx X. Xxxxxxxx, Xx.
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Xxxxxxx X. Xxxxx, Secretary Its:
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[Corporate Seal]
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