EXHIBIT 10.15
LIMITED GUARANTY
BRE/CITY CENTER L.L.C.
This Limited Guaranty (this "Guaranty") is dated for reference purposes
only as of April 25, 2001 by Prime Group Realty, L.P., a Delaware limited
partnership ("Guarantor") in favor of Corus Bank, N.A. ("Lender"). --
RECITALS:
A. BRE/City Center L.L.C., a Delaware limited liability company
("Borrower") and Lender have entered into that certain Loan Agreement, dated for
reference purposes only as of April 25, 2001 (the "Loan Agreement"), pursuant to
which Lender has agreed to make a loan to Borrower in the maximum principal
amount of Sixty Seven Million and No/Dollars ($67,000,000) (the "Loan").
B. In connection with the Loan, Borrower has executed and delivered to
Lender a note, dated for reference purposes only as of April 25, 2001, in the
amount of $67,000,000 (said note, together with any extensions thereof or
modifications or amendments thereto and any note issued in substitution or
exchange therefor, being hereinafter referred to as the "Note").
C. To secure the payment of the obligations and liabilities of Borrower to
Lender under the Loan Agreement and the Note, Borrower has executed and
delivered to Lender certain security agreements, documents and instruments
evidencing and securing the Loan, including but not limited to an Open-End
Leasehold Mortgage, Mortgage, Assignment of Leases and Rents, Security Agreement
and Financing Statement dated for reference purposes only as of April 25, 2001
(the "Mortgage"), which is a lien on the property legally described on Exhibit A
(the "Property").
D. The Loan Agreement, the Note, the Mortgage, this Guaranty, together with
all other agreements, documents, notes, and instruments given to evidence or
secure the indebtedness evidenced by the Note and the Loan Agreement, and all
other written matter and all amendments, modifications, supplements, extensions
and restatements thereof, thereto and therefor, and all agreements, notes,
documents or instruments delivered in substitution therefor or in lieu thereof,
whether heretofore, now or hereafter executed by or on behalf of Borrower,
Guarantor, any one or more of them, or any other person or entity, delivered to
Lender or any participant with respect to the Loan are collectively referred to
herein as the "Loan Documents."
E. It is a condition precedent to Lender's obligation to make the Loan that
Guarantor enter into this Guaranty.
F. Guarantor has a financial interest in Borrower and will receive a
material financial benefit if Lender makes the Loan to Borrower and Guarantor
has agreed to execute and deliver this Guaranty. As used herein the term "Loan
Party" shall mean any one or more of Borrower, Guarantor and any other person or
entity which is a party to the Loan Documents, other than Lender.
G. Any capitalized term not defined herein, but defined in the Loan
Agreement shall have the meaning ascribed to such term in the Loan Agreement,
which definition is incorporated herein by reference as if fully set forth
herein.
NOW, THEREFORE, FOR VALUE RECEIVED, in consideration of the foregoing Recitals,
each of which are an integral part hereof and this Guaranty shall be construed
in light thereof, and in consideration of Lender making the Loan to Borrower and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, Guarantor agrees as follows:
1. GUARANTY.
(a) Guarantor absolutely, unconditionally and irrevocably guarantees, as a
principal obligor and not as a surety, to Lender:
(i) the full and prompt payment when due, whether at stated maturity,
upon acceleration or otherwise, and at all times thereafter, of any and all
debts, liabilities, and obligations for the payment of principal, interest,
late fees and the Exit Fee (as defined in the Loan Agreement); and
(ii) the payment of all Enforcement Costs (defined below).
(b) Notwithstanding anything to the contrary contained herein, but subject
to the provisions of Section 1(c), Guarantor's total liability under the terms
of this Guaranty shall not exceed an amount, paid from Guarantor's Funds
(hereunder defined), equal to the sum of: (i) principal in an amount equal to
$13,400,000; (ii) interest on the unpaid principal amount of the Loan from time
to time, at the Interest Rate or the Default Rate, as applicable; (iii) all late
fees; (iv) the Exit Fee; plus (v) all Enforcement Costs. As used herein,
"Guarantor's Funds" shall mean immediately available funds from Guarantor's
monies and the proceeds of Guarantor's assets; provided that, Guarantor's Funds
shall specifically exclude the Excluded Funds. As used herein, "Excluded Funds"
shall mean: (w) any payments made by Borrower to Guarantor or its affiliates
after the occurrence of an Event of Default or Unmatured Default and during the
continuation thereof, for services rendered by Guarantor or its affiliates,
except as expressly permitted to be paid pursuant to the Loan Agreement; (x)
funds from Borrower or the operation of the Property, including rental income
and security deposits; (y) proceeds from the sale or transfer of the Property or
other Collateral (as defined in the Loan Agreement) pledged by Borrower or any
other Loan Party, including proceeds from any foreclosure proceeding; and (z)
distributions from Borrower to its members which are then distributed (directly
or indirectly) to Guarantor. In calculating and determining the amount payable
by Guarantor hereunder, no credit, reduction or offset shall be made for: (1)
payments made by Borrower or any other Loan Party after the occurrence of an
Event of Default or after demand is made for payment hereunder, (2) payments
from any Excluded Funds, or (3) any payment made by Guarantor, in Guarantor's
discretion, in accordance with to Section 17(b)(ii) of this Guaranty. Nothing
contained in this Section 1(b) shall be deemed to limit Guarantor's liability
under Section 1(c), the Environmental Indemnity Agreement or any other Loan
Document to which Guarantor is a party. Guarantor's liability and obligations
with respect to payment of accrued but unpaid interest shall cease upon
confirmation of a foreclosure sale, or upon Lender's acceptance of a
deed-in-lieu of foreclosure from Borrower; provided that, Guarantor has
previously fully and indefeasibly paid, or simultaneously fully and indefeasibly
pays, all other obligations due hereunder. Otherwise Guarantor's obligation to
pay accrued but unpaid interest shall survive such confirmation of a foreclosure
sale or delivery of a deed-in-lieu of foreclosure, and Guarantor shall be liable
for any and all accrued but unpaid interest up to and including the date on
which Guarantor fully and indefeasibly pays all of its obligations hereunder.
(c) Notwithstanding the provisions of Section 1(b), and in addition to the
amounts payable pursuant to Section 1(b), Guarantor's liability to Lender shall
be unlimited to the extent of actual damage, loss, cost, or expense arising from
or relating to: (i) the filing by Borrower, Guarantor and/or any other Person
(as defined in the Loan Agreement) now or hereafter liable for the Loan (or any
portion thereof) of a voluntary bankruptcy petition under any section or chapter
of the Bankruptcy Reform Act of 1928, as amended, or the cooperation or
acquiescence by Borrower, Guarantor and/or any other Person (as defined in the
Loan Agreement) now or hereafter liable for the Loan (or any portion thereof) in
an involuntary bankruptcy or any receivership proceedings; (ii) Borrower,
Guarantor and/or any other Person (as defined in the Loan Agreement) now or
hereafter liable for the Loan (or any portion thereof) becoming a party to any
case, action, suit or proceeding which suspends, reduces, impedes, or impairs
Lender's right of recourse to the Property or any part thereof (other than the
filing of compulsory counter-claims); (iii) Borrower or Guarantor engaging in
any act, omission, or intentional material misrepresentation which has the
effect of suspending, delaying, reducing, impeding, or impairing Lender's right
of recourse to the Property or any part thereof (other than the filing of
compulsory counter-claims); (iv) fraud of Borrower or Guarantor; (v) the
Environmental Indemnity Agreement; (vi) willful misconduct of Borrower or
Guarantor and/or intentional material misrepresentations by Borrower or
Guarantor in the Loan Agreement, this Guaranty, or any other Loan Document;
(vii) the commission of waste with regard to the Property; (viii) intentional
misconduct of Borrower or Guarantor causing the cancellation of insurance; (ix)
the failure of Borrower or Guarantor after the occurrence of an Event of Default
or Unmatured Default to apply any income generated by the Property (including,
but not limited to, rental receipts and/or security deposits) to any necessary
and ordinary expenses of the Property and/or the Secured Obligations (as defined
in the Loan Agreement), or to deliver such income to Lender upon demand if and
to the extent required by the Loan Agreement and the other Loan Documents; (x)
Borrower's acceptance of any rental payments more than thirty (30) days in
advance of the due date; or (xi) the transfer or conveyance of the Property or
any material portion thereof in violation of the provisions of the Loan
Agreement or any other Loan Document. Payments made pursuant to this Section
1(c) may be applied by Lender to the Secured Obligations in the order of
priority set forth in the Loan Agreement. No payment made pursuant to this
Section 1(c) shall reduce or limit the amount payable by Guarantor pursuant to
Section 1(b); provided that nothing contained in this Section 1(c) shall be
deemed to permit Lender to collect twice for the same item of Guarantor's
Obligations.
All amounts due, debts, liabilities and payment obligations described in this
Section 1 are referred to herein as the "Guarantor's Obligations".
2. IRREVOCABLE GUARANTY.
(a) Upon the occurrence of any Event of Default under the Loan Agreement or
any other Loan Document, Guarantor agrees, on demand by Lender, to pay all
Secured Obligations (as defined in the Loan Agreement) regardless of any
defense, right of set-off or claims which Borrower, Guarantor or any other party
under the Loan Documents may have against Lender, subject only to the
limitations set forth in Section 1(b).
(b) This is an absolute, irrevocable, present and continuing guaranty of
payment of the Guarantor's Obligations and not of collection.
(c) The obligations of Guarantor hereunder are independent of the
obligations of Borrower and any other Loan Party and a separate action or
actions may be brought or prosecuted against Guarantor, whether any action is
brought against Borrower or any other Loan Party or whether Borrower or any
other Loan Party is joined in any action or actions. In any action to enforce
this Guaranty, Lender, at its election, may proceed against Guarantor, with or
without: (i) joining Borrower or any other Loan Party in any such action; (ii)
commencing any action against or obtaining any judgment against Borrower or any
other Loan Party; or (iii) commencing any proceeding to enforce the Note, or the
Loan Agreement or to realize upon the Property or any of the other Collateral;
provided however, nothing herein contained shall preclude Lender from suing on
the Note and the Loan Agreement or foreclosing the Loan Documents or from
exercising any other rights, remedies or power under any Loan Document, and if
such foreclosure or other rights, powers or remedies are availed of, only the
net proceeds therefrom, after deduction of all charges and expenses of every
kind and nature whatsoever, shall be applied in reduction of the Secured
Obligations. Lender shall not be required to institute or prosecute proceedings
to recover any deficiency as a condition of any payment hereunder or enforcement
hereof. Nevertheless, in the event Lender elects to pursue its remedies under
any one or more of the other Loan Documents and any disposition of the
Collateral or any part thereof results in a deficiency, Guarantor hereby further
promises and agrees to immediately pay to Lender the amount of such deficiency,
subject to the limitation set forth in Section 1(b). At any sale of any security
or Collateral for the Loan, whether by foreclosure or otherwise, Lender may, at
its discretion, purchase all or any part of such security or Collateral offered
for sale for its own account, and may apply against the amount bid therefor the
unpaid balance or any part thereof to the Secured Obligations.
(d) The obligations and liabilities of Guarantor hereunder shall not be
diminished or offset by any payment by Guarantor under any other agreement,
document, or instrument by Guarantor in favor of Lender, including but not
limited to the Environmental Indemnity Agreement, executed by Guarantor in favor
of Lender concurrently herewith.
3. RETURN OF PAYMENTS. Guarantor agrees that, if at any time all or any
part of the payments theretofore applied by Lender to any Guarantor's Obligation
is rescinded or returned by Lender or Lender is required to pay any amount
thereof to any other party for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy, liquidation or reorganization of any
party or the determination that such payment is held to constitute a preference
under the bankruptcy laws): (i) such Guarantor's Obligation shall, for the
purposes of this Guaranty, be deemed to have continued in existence to the
extent of such payment, notwithstanding such application by Lender, and this
Guaranty shall continue to be effective or be reinstated, as the case may be, as
to such Guarantor's Obligation, all as though such application by Lender had not
been made and Guarantor agrees to pay such amount to Lender upon demand; and
(ii) any security interest granted by Guarantor to Lender to secure Lender's
performance under this Guaranty shall be deemed to be reinstated notwithstanding
any release by Lender of such security interest or pledge. Guarantor shall
execute any document, instrument or financing statement necessary or desirable
to effect this provision.
4. NO DISCHARGE. Subject only to the limitation set forth in Section 1(b),
Guarantor agrees that the obligations, covenants and agreements of Guarantor
under this Guaranty shall not be discharged, affected or impaired by any act of
Lender or any event or condition except full performance of and indefeasible
payment in full of the Guarantor's Obligations. Subject only to the limitation
set forth in Section 1(b), Guarantor agrees that, without full performance of
and indefeasible payment in full of the Guarantor's Obligations, the liability
of Guarantor hereunder shall not be discharged, affected or impaired by:
(i) the renewal or extension of time for the payment or performance of
the Secured Obligations under any of the Loan Documents or any other
agreement relating to the Secured Obligations, whether made with or without
notice to or the knowledge or consent of Guarantor;
(ii) any modification or amendment of the Loan Documents, with or
without notice to or the knowledge or consent of Guarantor, including but
not limited to any further or future extensions of credit which shall
become a part of the Guarantor's Obligations (subject to the limitations
set forth in Section 1(b)), any change or modification of the interest
rate, payment terms, maturity date or any other covenant of any agreement
of Borrower or any other Loan Party;
(iii) any transfer, waiver, compromise, settlement, modification,
surrender, or release of the Note, the Loan Agreement or any of the other
Loan Documents;
(iv) the release or agreement not to xxx without reservation of rights
of Borrower, any other Loan Party or any other person or entity liable in
any way for repayment of or performance of the Secured Obligations;
(v) the existence of any defenses to enforcement of the Note, the Loan
Agreement or any of the other Loan Documents, other than payment in full
and performance of all Secured Obligations;
(vi) any failure, omission, delay or inadequacy, whether entire or
partial, of Lender to exercise any right, power or remedy regarding the
Loan or to enforce or realize upon (or to make Guarantor party to the
enforcement or realization upon) any of Lender's security for the Loan;
(vii) the existence of any set-off, claim, reduction, or diminution of
the Secured Obligations and/or the Guarantor's Obligations (other than
payment), or any defense of any kind or nature, which Guarantor may have
against Borrower or any other Loan Party or which Borrower or any other
Loan Party has against Lender;
(viii) the application of payments received from any source to the
payment of any obligation other than the Secured Obligations, even though
Lender might lawfully have elected to apply such payments to any part or
all of the Secured Obligations;
(ix) the addition of any and all other endorsers, guarantors, obligors
and other persons liable for the payment of and/or the performance of the
Secured Obligations and the acceptance of any other security for the
payment of and/or performance of the Secured Obligations;
(x) the power or authority or lack of power or authority of Borrower
to execute and deliver the Note, or the Loan Agreement or of Borrower or
any other Loan Party to execute, acknowledge or deliver any one or more of
the Loan Documents;
(xi) the validity or invalidity of the Note, the Loan Agreement or the
other Loan Documents;
(xii) the existence or non-existence of Borrower or any other Loan
Party as a legal entity;
(xiii) the transfer by Borrower or any other Loan Party of all, or any
part of, or any interest in all or any part of the Property or any other
Collateral;
(xiv) the institution by or against Borrower or any other Loan Party
of bankruptcy, reorganization, readjustment, receivership or insolvency
proceedings of any nature, or the disaffirmation of any one or more of the
Loan Documents in any such proceedings or otherwise;
(xv) any irregularity or the unenforceability (by reason of any
governmental agency's purporting to reduce or amend or otherwise affect the
Secured Obligations), or the release or discharge of Borrower in any
receivership, bankruptcy, winding-up or other creditor proceedings;
(xvi) the determination by a court of competent jurisdiction that
Borrower or any other Loan Party is not required to pay any Indebtedness
(as such term is defined in the Loan Agreement) pursuant to operation of
law;
(xvii) the acceptance by Lender of payment of a part of the
Indebtedness, or any failure, neglect or omission on the part of Lender to
realize on or protect any of the Indebtedness or any real estate, personal
property, or mortgage or lien security given as security therefor, or to
exercise any lien upon, or right of appropriation of, any monies, credits
or property of Borrower toward liquidation of the Secured Obligations;
(xviii) the failure by Lender or anyone acting on behalf of Lender to
perfect or maintain perfection of any lien or security interest upon any
Collateral given at any time to secure repayment of the Loan;
(xix) any right or claim whatsoever which Guarantor may have against
Borrower, any other Loan Party or Lender or the successors or assigns of
any of them; or
(xx) the occurrence of any default under the terms of any Mezzanine
Loan Documents (as defined in the Loan Agreement) and the exercise by
Mezzanine Lender of any right or remedy thereunder, including the
foreclosure of its security interest in the membership interests of
Borrower.
all whether or not Guarantor shall have had notice or knowledge of any act or
omission referred to in the foregoing clauses (i) through (xx) of this Section.
Subject only to the limitations set forth in Section 1(b), Guarantor
intends that Guarantor shall remain liable hereunder as a principal obligor
until all of Guarantor's Obligations shall have been paid in full and performed
in accordance with the terms and conditions of this Guaranty, notwithstanding
any fact, act, event or occurrence which might otherwise operate as a legal or
equitable discharge of a surety or guarantor.
5. APPLICATION OF AMOUNTS RECEIVED. Any amounts received by Lender from
whatsoever source on account of the Guarantor's Obligations shall be applied by
Lender toward the payment of the Guarantor's Obligations in such order of
application, as Lender may from time to time elect.
6. Waiver.
(a) Guarantor expressly waives:
(i) notice of the acceptance by Lender of this Guaranty;
(ii) notice of the existence, creation, payment or nonpayment of
the Loan or any modification, extension, or amendment thereof;
(iii) presentment, demand, protest, notice protest, notice of
presentment, default, non-payment, maturity, release, compromise,
settlement, extension, renewal of the Loan or any obligation under the
Loan Documents, notice of maturity, release, compromise or settlement
of any or all commercial paper, accounts, contract rights, documents,
instruments, chattel paper and guarantees at any time held by Lender
with respect to the transactions contemplated in the Loan Documents,
and all other notices whatsoever, except for notices required to be
delivered pursuant to the terms of this Guaranty, the Loan Agreement,
any other Loan Document, or under applicable Law;
(iv) any failure by Lender to inform Guarantor of any facts
Lender may now or hereafter know about Borrower, any other Loan Party,
the Collateral, the Loan or the transactions contemplated by the Loan
Documents;
(v) notice of any and all changes in the terms, covenants or
conditions of the Note or of the other Loan Documents, including
extension, and renewal;
(vi) any and all substitutions, exchanges or releases of all or
any part of the Collateral;
(vii) all rights to notice and a hearing prior to Lender's taking
possession or control of, or to Lender's replevy, attachment or levy
upon the Property or any other Collateral;
(viii) any bond or security which might be required by any court
prior to allowing Lender to exercise any of Lender's remedies;
(ix) the release or agreement not to xxx without reservation of
rights of anyone liable in any way for repayment of the Loan; and
(x) the benefit of all valuation, appraisement, extension and
exemption laws;
it being understood and agreed that Lender has no duty to so inform and that
Guarantor is fully responsible for being and remaining informed by Borrower of
all circumstances bearing on the existence or creation, or the risk of
nonpayment of and the nonperformance of the Secured Obligations.
(b) Credit may be granted or continued from time to time by Lender to
Borrower without notice to or authorization from Guarantor, including but not
limited to making additional loans or other financial accommodations by Lender
to Borrower or any other Loan Party regardless of the financial or other
condition of Borrower, any other Loan Party or the Collateral and Guarantor
agrees that the obligations, covenants and agreements of Guarantor under this
Guaranty shall not be discharged, affected or impaired thereby.
(c) No modification or waiver of any of the provisions of this Guaranty
shall be binding upon Lender or Guarantor, except as expressly set forth in a
writing duly signed and delivered on behalf of Lender and Guarantor.
(d) Guarantor hereby waives the benefit of any law that would otherwise
restrict or limit Lender in the exercise of its right, which is hereby
acknowledged, to appropriate and offset, without notice at any time hereafter,
any indebtedness or obligation matured or unmatured owing from Lender to
Guarantor. Lender may, from time to time, without demand or notice of any kind,
appropriate and apply toward the payment of such of the Guarantor's Obligations,
and in such order of application, as Lender may, from time to time, elect any
and all such balances, credits, deposits, accounts, monies, cash equivalents and
other assets, which are in the name of Guarantor, then or thereafter with
Lender. Guarantor hereby assigns and transfers to Lender any and all cash,
negotiable instruments, documents of title, chattel paper, securities,
certificates of deposit, deposit accounts, other cash equivalents and other
assets of Guarantor, in the possession or control of Lender for any purpose.
(e) Guarantor hereby waives the filing of a claim with a court in the event
of receivership or bankruptcy of Borrower, and waives every defense, cause of
action, counterclaim or setoff which Guarantor may now have or hereafter may
have to any action by Lender in enforcing this Guaranty, including, without
limitation, every defense, counterclaim or setoff which Guarantor may now have,
or hereafter may have, against Borrower, any other Loan Party or any other party
liable to Lender in any manner. Guarantor ratifies and confirms whatever Lender
may do with respect to the Collateral; provided that Lender complies with the
terms hereof, the terms of the other Loan Documents and applicable Law.
Guarantor agrees that Lender shall not be liable for any error in judgment or
mistakes of fact or law. Guarantor hereby agrees that Guarantor may be joined as
a party defendant in any legal proceeding (including, but not limited to, a
foreclosure proceeding) instituted by Lender against Borrower or any other Loan
Party.
7. ENFORCEMENT COSTS: If: (i) this Guaranty, the Loan Agreement, the Note
or any other Loan Document is placed in the hands of an attorney for collection
or enforcement or is collected or enforced through any legal proceeding; (ii) an
attorney is retained to represent Lender in any bankruptcy, reorganization,
receivership, or other proceedings affecting creditors' rights and involving a
claim under this Guaranty, the Loan Agreement, the Note or any other Loan
Document; or (iii) an attorney is retained to represent Lender in any other
proceedings whatsoever in connection with a default by Guarantor under this
Guaranty, or Borrower or any other Loan Party under any other Loan Document or
to protect any interest of Lender in any Collateral created by any Loan Document
then Guarantor shall pay to Lender upon demand all reasonable costs and
expenses, including without limitation, reasonable attorney's fees, receiver's
fees, court costs, filing fees, recording costs, expenses of foreclosure, title
insurance premiums, minutes of foreclosure and all other costs and expense
incurred in connection therewith (all of which are referred to herein as
"Enforcement Costs"), in addition to all other amounts due hereunder. For
greater certainty, and not in limitation of the foregoing, for the purposes of
this Guaranty and each and every Loan Document, attorneys' fees shall include:
(A) the fees of any law firm retained by Lender, and (B) the fees of in-house
counsel of Lender, at rates which are comparable to rates then charged by
medium-sized law firms in City of Chicago, Illinois for attorney's of comparable
experience and expertise.
8. TRANSFER OF THE GUARANTOR'S OBLIGATIONS. Notwithstanding any assignment
or transfer of the Guarantor's Obligations or any interest therein by Lender,
all of such Guarantor's Obligations or any interest therein, including those
assigned or transferred, shall be and remain Guarantor's Obligations for the
purposes of this Guaranty, and each and every immediate and successive assignee
or transferee of such Guarantor's Obligations or interest shall, to the extent
of the Guarantor's Obligations or interests assigned or transferred, be entitled
to the benefits of this Guaranty to the same extent as if such assignee or
transferee were Lender; provided however, that unless the assignor or transferor
shall otherwise consent in writing, the assignor or transferor shall have an
unimpaired right, prior to and superior to that of its assignee or transferee,
to enforce this Guaranty for its benefit as to such portions of the Guarantor's
Obligations or interests therein not assigned or transferred.
9. SUBORDINATION. Any indebtedness or other obligation of Borrower, now or
hereafter held by or owing to Guarantor (including, but not limited to, any
past, present or future indebtedness or obligation Borrower owes to Guarantor
under that certain Management Agreement, dated as of February 5, 1999, between
Borrower and Guarantor), is hereby subordinated to the payment and performance
in full of all Secured Obligations of Borrower to Lender evidenced by the Note
and the other Loan Documents. Except for any fee earned by Guarantor pursuant to
the Management Agreement (described above), Guarantor hereby covenants and
agrees that it will not accept payment of principal, interest or any other
amount of any indebtedness or other obligation of Borrower to Guarantor. Any
such indebtedness or obligation of Borrower to Guarantor shall, at the option of
Lender, be collected, enforced and received by Guarantor as trustee for Lender,
and shall be paid over to Lender on account of the Secured Obligations of
Borrower to Lender, but without impairing-or affecting in any manner the
liability of Guarantor under the other provisions of this Guaranty. Nothing in
this Section or elsewhere in this Guaranty shall be construed as Lender's
authorization of or consent to the creation or existence of any such
indebtedness of Borrower to Guarantor.
10. INTERPRETATION.
(a) The headings of sections and paragraphs in this Guaranty are for
convenience only and shall not be construed in any way to limit or define
the content, scope, or intent of the provisions hereof. As used in this
Guaranty, the singular shall include the plural, and masculine, feminine,
and neuter pronouns shall be fully interchangeable, where the context so
requires. If any provision of this Guaranty or any paragraph, sentence,
clause, phrase, or word, or the application thereof, in any circumstances,
is adjudicated by a court of competent jurisdiction to be invalid, the
validity-of the remainder of this Guaranty shall be construed as if such
invalid part were never included herein.
(b) Time is of the essence of this Guaranty.
(c) All payments to be made hereunder shall be made in currency and
coin of the United States of America which is legal tender for public and
private debts at the time of payment.
(d) Wherever possible each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Guaranty.
(e) It is agreed that Guarantor's liability is independent of any
other guaranties at any time in effect with respect to all or any part of
Borrower's indebtedness to Lender, and that Guarantor's liability hereunder
may be enforced regardless of the existence of any such other guaranties.
11. ENTIRE AGREEMENT. This Guaranty, the Note and the other Loan Documents
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior such agreements and understandings, both
written and oral. This Guaranty may not be modified or amended except by a
written instrument signed by Lender and Guarantor. If this Guaranty is executed
in several counterparts, each of those counterparts shall be deemed an original,
and all of them together shall constitute one and the same instrument.
12. PAYMENT OF GUARANTOR'S OBLIGATIONS. Lender agrees that Guarantor's
Obligations under this Guaranty shall terminate, subject to the provisions of
Section 3 hereof, upon the earlier of (i) indefeasible payment in full to Lender
of all Secured Obligations or (ii) indefeasible payment in full to Lender of all
sums due and owing by Guarantor under this Guaranty.
13. SUCCESSORS AND ASSIGNS, MISCELLANEOUS. This Guaranty shall inure to the
benefit of and may be enforced by Lender, and any subsequent holder of the Note,
the Loan Agreement, or the other Loan Documents, and all of the covenants,
agreements and obligations of Guarantor hereunder shall extend to and be binding
upon and enforceable against Guarantor and the heirs, administrators, legal
representatives, successors and assigns of Guarantor. This Guaranty and the
obligations hereunder shall not be discharged, affected, or impaired, in whole
or in part, upon the bankruptcy, insolvency or death of Guarantor.
14. FURTHER ASSURANCES: REPRESENTATION BY COUNSEL.
(a) Guarantor further covenants and agrees that Guarantor shall at any
time and from time to time, upon the reasonable request of Lender, take, or
cause to be taken, any reasonable action and execute and deliver any
further documents which, in the reasonable opinion of Lender, may be
necessary or required in order to carry out the intent and purposes of this
Guaranty, provided that any such actions and/or further documents shall not
expand the liability of Guarantor as described herein or decrease
Guarantor's rights hereunder.
(b) Guarantor hereby represents and warrants that it has consulted and
conferred with competent legal counsel of its choice before executing this
Guaranty and all other Loan Documents. Guarantor further represents and
warrants that it has read and understood the terms of this Guaranty and
intends to be bound hereby. In the event of an ambiguity or conflict in the
terms hereof the rule of construction requiring resolution against the
drafter of the document shall not be applied.
15. NOTICES. Any and all notices given in connection with this Guaranty
shall be deemed adequately given only if in writing and addressed to the party
for whom such notices are intended at the address set forth below. All notices
shall be sent by personal delivery, Federal Express or other overnight messenger
service, first class registered or certified mail, postage prepaid, return
receipt requested or by other means at least as fast and reliable as first class
mail. A written notice shall be deemed to have been given to the recipient party
on the earlier of: (a) the date it shall be delivered to the address required by
this Guaranty; (b) the date delivery shall have been refused at the address
required by this Guaranty; or (c) with respect to notices sent by mail, the date
as of which the postal service shall have indicated such notice to be
undeliverable at the address required by this Guaranty. Any and all notices
referred to in this Guaranty, or which either party desires to give to the
other, shall be addressed as follows:
To Guarantor: Prime Group Realty Trust
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Co-President
with a copy to: Prime Group Realty Trust
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: General Counsel
And to
Xxxxxxx X. Xxxxx, Esq.
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
To Lender: Corus Bank, N.A.
0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Marcowicz, First Vice President
And to
Corus Bank, N.A.
0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, Senior Vice President
with a copy to: Xxxxxxxx & Xxxxxx, Ltd.
00 Xxxxx Xxxxxx Xxxxx.
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx, Esq.
Any party hereto may, by notice given hereunder, designate any further or
different addresses to which subsequent notices, certificates or other
communications shall be sent.
16. ADDITIONAL REPRESENTATIONS AND WARRANTIES. In addition to and
independent of any other obligation or liability under this Guaranty, Guarantor
hereby represents, warrants and covenants to Lender as of the date hereof
(unless specifically provided to be continuing in this Section) as follows:
(a) Limited Partnership. Guarantor (i) is, and at all times during the
term hereof shall be, a limited partnership, duly organized, validly
existing and in good standing under the laws of the State of Delaware and
has complied with all conditions prerequisite to its doing business in the
state where its principal place of business is located; (ii) has and at all
times during the term hereof shall have the power and authority to own its
properties and to transact the business in which it is engaged or proposes
to engage; (iii) is and at all times during the term hereof shall be
qualified to do business in every jurisdiction in which the nature of its
business or its properties makes such qualification necessary; and (iv) is
and at all times during the term hereof shall be in compliance with all
Laws applicable to it except as to subparagraphs (iii) and (iv) where
failure to comply with such requirements or laws is not likely to result in
a Material Adverse Event (as defined in the Loan Agreement). The
Organizational Documents of Guarantor (as defined in the Loan Agreement),
copies of which have been furnished to Lender, are in full force and
effect, have not been amended since the date of delivery to Lender, and are
true, correct and complete copies of all documents relating to Guarantor's
creation and governance.
(b) Entity Power. Guarantor has and at all times during the term
hereof shall have all limited partnership power and authority to own its
property and to transact the business in which it is engaged or proposes to
engage. Guarantor has and at all times during the term hereof shall have
all the limited partnership right, power and capacity and is duly
authorized and empowered to enter into, execute, deliver and perform this
Guaranty and the other Loan Documents to which it is a party, and all such
action has been duly and validly authorized by all necessary limited
partnership proceedings on its part.
(c) Execution and Binding Effect. This Guaranty and each other Loan
Document to which Guarantor is a party and which is executed and delivered
or required to be executed and delivered on or before the date of which
this representation and warranty is made, or deemed made, has been duly and
validly executed and delivered by Guarantor. This Guaranty and each such
other Loan Document constitutes, and each other Loan Document when executed
and delivered by Guarantor will constitute, the legal, valid and binding
obligations of Guarantor, enforceable against Guarantor in accordance with
its terms, subject to bankruptcy, insolvency and other laws affecting
creditor's rights generally.
(d) Violation of Organizational Documents and Agreements. Neither the
execution and delivery of this Guaranty, nor consummation of the
transactions herein or therein contemplated, nor performance of or
compliance with the terms and conditions hereof or thereof, does or will at
any time during the term hereof:
(i) violate or conflict with any Law (as defined in the Loan
Agreement), unless such violation is not likely to result in a
Material Adverse Event, or
(ii) violate, conflict with or result in a breach of any term or
condition of, or constitute a default under, or result in (or give
rise to any right, contingent or otherwise, of any Person to cause)
any termination, cancellation, prepayment or acceleration of
performance of, or result in the creation or imposition of (or give
rise to any obligation, contingent or otherwise, to create or impose)
any lien upon any property of Guarantor pursuant to, or otherwise
result in (or give rise to any right, contingent or otherwise, of any
Person to cause) any change in any right, power, privilege, duty or
obligation of Guarantor under or in connection with:
(a) the Organizational Documents of Guarantor,
(b) any agreement or instrument creating, evidencing or
securing any Indebtedness or Guaranty Equivalent (as defined in
the Loan Agreement) to which Guarantor is a party or by which it
or any of their properties (now owned or hereafter acquired) may
be subject or bound, unless such default or event is not likely
to result in a Material Adverse Event, or
(c) any other agreement or instrument or arrangement to
which Guarantor is a party or by which it or any of its
properties (now owned or hereafter acquired) may be subject or
bound, unless such default or event is not likely to result in a
Material Adverse Event (as defined in the Loan Agreement).
(e) Government Approvals and Filings. No approval, order, consent,
authorization, certificate, license, permit or validation of, or exemption or
other action by, or filing, recording or registration with, or notice to, any
governmental authority (collectively, "Governmental Action") is or will be
necessary in connection with the execution and delivery of this Guaranty or any
other Loan Document to which Guarantor is a party, consummation of the
transactions herein or therein contemplated, performance of or compliance with
the terms and conditions hereof or thereof, or to ensure the legality, validity,
binding effect, enforceability or admissibility in evidence hereof or thereof.
(f) Violation of Laws. To Guarantor's knowledge, Guarantor is not in
violation of any applicable statute, regulation or ordinance of the United
States of America, of any state, city, town, municipality, county or of any
other jurisdiction, or of any agency thereof, (including, but not limited to any
Environmental Law or any regulation of the Federal Reserve Board) in any respect
which is likely to result in any Material Adverse Event.
(g) Solvency. Guarantor (i) is now and at all times during the term hereof
shall be generally paying its debts as they mature; (ii) now owns, and at all
times during the term hereof shall own, property which, at a fair valuation, is
greater than the sum of its debts, and (iii) now has and at all times during the
term hereof shall have capital sufficient to carry on its business and
transactions and all business transactions in which it is about to engage.
(h) Proceeding. Except as set forth in Schedule 3.4 to the Loan Agreement,
there is no condition, event or circumstance existing, or any litigation,
arbitration, governmental or administrative proceedings, actions, examinations,
claims or demands pending nor, to Guarantor's knowledge, threatened affecting
Guarantor which are likely to result in a Material Adverse Event, and Guarantor
knows of no basis therefor.
(i) Tax Returns.
(i) All tax and informational returns required to be filed by or on
behalf of Guarantor have been and shall hereafter be properly prepared,
executed and filed. All taxes, assessments, fees and other Charges (as
defined in the Loan Agreement) upon Guarantor, or upon any of its
properties, incomes, sales or franchises which are due and payable have
been paid other than those not yet delinquent and payable without premium
or penalty, and except for those being diligently contested in good faith
by appropriate proceedings, and in each case adequate reserves and
provisions for taxes have been made on the books of Guarantor. To
Guarantor's knowledge, the reserves and provisions for taxes on the books
of Guarantor are adequate for all open years and for its current fiscal
period.
(ii) Guarantor does not know of any proposed additional assessment or
basis for any material assessment for additional taxes (whether or not
reserved against).
(iii) Guarantor has paid all Charges shown to be due and payable on
said returns or on any assessments made against it or any of its property,
and all other Charges imposed on it or any of its properties by any
governmental authority.
(j) Default Under Other Agreements. Guarantor has not received any written
notice of a default with respect to any indenture, loan agreement, mortgage,
deed or other similar agreement relating to the borrowing of monies to which it
is a party, and by which it is bound.
(k) Insurance. Guarantor maintains and at all times during the term hereof
shall maintain with financially sound and reputable insurers, not related to or
affiliated with Guarantor, insurance with respect to its properties and business
and against at least such liabilities, casualties and contingencies and in at
least such types and amounts as is customary in the case of businesses engaged
in the same or a similar business or having similar properties similarly
situated.
(l) Financial Statements. The most recent financial statements delivered by
Guarantor to Lender and all financial statements hereafter delivered by
Guarantor to Lender shall fairly and accurately present in all material respects
the assets, liabilities and financial conditions and results of operations of
Guarantor and such other Persons, if any, described therein as of and for the
periods ending on such dates set forth therein and have been and shall have been
prepared in accordance with generally accepted accounting principles and such
principles have been applied on a basis consistently followed in all material
respects throughout the periods involved.
(m) Adverse Conditions. No condition, circumstance, event, agreement,
document, instrument, restriction, litigation or proceeding (or to Guarantor's
knowledge, threatened litigation or proceeding or basis therefor) relating to
Guarantor exists, (i) which are likely to result in a Material Adverse Event;
(ii) which would constitute an Event of Default under any of the Loan Documents;
or (iii) which would constitute such a Event of Default with the giving of
notice or lapse of time or both.
17. ADDITIONAL COVENANTS OF GUARANTOR.
(a) Guarantor shall deliver or cause to be delivered to Lender those
reports and financial statements set forth below. All such financial statements
shall be prepared in accordance with generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or any Person
succeeding to the functions thereof).
(i) As soon as practicable and in any event within one hundred and
twenty (120) days after the end of each calendar year Guarantor shall cause
to be delivered to Lender Form 10K delivered by Prime Group Realty Trust to
the Securities and Exchange Commission (the "SEC");
(ii) Within twenty (20) days of the filing thereof, federal income tax
returns of Guarantor (or any request for extension of the filing date
thereof), all certified to be true, complete and correct by an authorized
representative of Guarantor, as appropriate;
(iii) Within twenty (20) days after they are filed or furnished,
copies of all regular and periodic reports, proxy statements, financial
statements, registration statements prospectuses and other material filed
by Prime Group Realty Trust or any of its affiliates with any securities
exchange or with the SEC (including without limitation, all reports on
Forms 10K, 10Q or 8K promulgated under the Securities Exchange Act of 1934,
as amended) or any other governmental authority or distributed to the
stockholders of Prime Group Realty Trust and all press releases and other
statements made available by Prime Group Realty Trust to the public
concerning material adverse changes or developments in the business of any
of them;
(iv) Within one-hundred and twenty (120) days after the end of each
calendar year, Guarantor shall deliver to Lender, Guarantor's financial
statements for such calendar year, certified by independent certified
public accountants, selected by Guarantor and acceptable to Lender, in its
sole but reasonable discretion;
(v) Within sixty (60) days after the end of each calendar quarter, a
statement of income, expense, assets, liabilities and a calculation of
Guarantor's Net Worth, all in form and detail acceptable to Lender, in
Lender's sole, but reasonable discretion, and sufficient to determine
Guarantor's compliance with the requirements of the financial covenants set
forth in Section 17(b); and
(vi) Guarantor shall provide, from time to time during the term
hereof, such other information and reports, financial and otherwise,
concerning Borrower, Guarantor and the Property as Lender may reasonably
request.
(b) Throughout the term of the Loan, the Guarantor shall meet the following
financial covenants, to be determined on a quarterly basis based on an audited
annual financial statement and internally prepared quarterly financial
statements:
(i) The assets of Guarantor and its consolidated subsidiaries
consisting of cash, cash equivalents, marketable securities and available
amounts under existing credit facilities shall be equal to or greater than
$20,000,000.
(ii) As of the end of the fiscal quarter immediately preceding the
Closing Date and as of the end of each fiscal quarter thereafter, the net
worth of Guarantor and its consolidated subsidiaries shall not be less than
$350,000,000 (the "Required Net Worth"). As used herein, "Net Worth" shall
equal for Guarantor and all of its consolidated subsidiaries, Total Assets
less Total Liabilities. As used herein, "Total Assets" equals the aggregate
book value of all assets, consolidated and determined in accordance with
GAAP, plus accumulated depreciation of real property less intangible
assets. As used herein, "Total Liabilities" equals all liabilities,
consolidated and determined in accordance with GAAP. Notwithstanding the
forgoing, in the event the Net Worth of Guarantor is less than Three
Hundred and Fifty Million Dollars ($350,000,000) but greater than Three
Hundred Million Dollars ($300,000,000), then Guarantor shall have the
option to reduce the Required Net Worth to $300,000,000 by payment of
principal to Lender in an amount equal to Five Million Dollars
($5,000,000). Such principal payment shall made no later than ten (10) days
after delivery of the financial statements of Guarantor evidencing the
Required Net Worth of Guarantor to be less than $350,000,000 and shall be
accompanied by a statement from Guarantor that such payment is being made
pursuant to this Section 17(b)(ii). Any payment made pursuant to this
provision shall be made from Guarantor's Funds and not from Excluded Funds.
Any payment made pursuant to this Section 17(b)(ii) shall be in addition
to, and not in lieu of, any liabiity or obligation of Guarantor pursuant to
Section 1 of this Guaranty and principal payments due from Borrower
pursuant to the Loan Agreement. Any payment made by Guarantor pursuant to
this Section 17(b)(ii) shall be applied to the principal portion of the
Secured Obligations.
(iii) At no time prior to payment in full of all the Secured
Obligations shall the ratio (stated as a percentage) of (i) Total
Liabilities to (ii) Total Assets be greater than 75%.
(c) At all times during the term hereof, Guarantor shall comply with and
shall cause Borrower to comply with the provisions of the Loan Agreement,
relating to Borrower's status as a single purpose entity.
(d) Any accounting term not expressly defined herein shall have the meaning
given such term in accordance with generally accepted accounting principals.
(e) Upon demand by Lender, at any time and from time to time, whether or
not an Event of Default has occurred under the Loan Agreement or any other Loan
Document or a default has occurred under the Mezzanine Loan Documents, Guarantor
shall execute a reaffirmation of and shall remake this Guaranty as of such date.
Failure of Guarantor to reaffirm and remake this Guaranty at any time, on
demand, shall be an Event of Default hereunder and under the Loan Agreement and
the other Loan Documents, without notice or opportunity to cure.
18. LIMITATION OF LIABILITY. Guarantor further agrees that any exculpatory
language pertaining to Borrower or to any other Loan Party contained in the
Note, the Loan Agreement or any other Loan Document shall in no event apply to
this Guaranty, and will not prevent Lender from proceeding against Guarantor to
enforce this Guaranty. Notwithstanding anything to the contrary contained
herein, no general partner or limited partner, shareholder, officer, director,
employees, representative or agent of Guarantor shall have any personal
liability for payment or performance Guarantor's Obligations or any other
liability of Guarantor hereunder or under any other Loan Document.
19. CREDIT AGREEMENT ACT. Guarantor expressly agrees that for purposes of
this Guaranty: (i) this Guaranty shall be a "credit agreement" under the
Illinois Credit Agreements Act, 815 ILCS 160/1 et. seq. (the "Act"); (ii) the
Act applies to this transaction including, but not limited to, the execution of
this Guaranty and each and every other Loan Document to which Guarantor is a
party; and (iii) any action on or in any way related to this Guaranty or any
other Loan Document to which Guarantor is a party shall be governed by the Act.
20. GOVERNING LAW. The validity of this Guaranty, its construction,
interpretation and enforcement, and the rights of Lender shall be determined
under, governed by, and construed in accordance with the internal laws of the
State of Illinois, without regard to principles of conflicts of law.
21. JURISDICTION AND VENUE.
(a) Jurisdiction and Venue. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
GUARANTOR AND LENDER EACH HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING
IN CONNECTION WITH THIS GUARANTY BE TRIED AND DETERMINED ONLY IN THE FEDERAL
COURT LOCATED IN THE NORTHERN DISTRICT OF ILLINOIS, OR THE STATE COURT LOCATED
IN THE CITY OF CHICAGO, STATE OF ILLINOIS, OR, AT THE SOLE OPTION OF LENDER IN
ANY OTHER COURT IN THE STATE OF ILLINOIS OR IN THE STATE OF OHIO IN WHICH LENDER
SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, GUARANTOR AND LENDER EACH HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO
ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT
ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION; PROVIDED, HOWEVER,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY UNDER
THE LOAN DOCUMENTS MAY BE BROUGHT, AT LENDER'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND AND LENDER MAY
INCLUDE IN ANY SUCH ACTION ANY PENDANT CLAIMS ARISING UNDER ANY LOAN DOCUMENT,
INCLUDING CLAIMS UNDER THIS GUARANTY. GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS, THE STATE OF
OHIO, AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS FOR THE PURPOSE OF SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
CERTIFIED OR REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE AT THE
ADDRESS OF GUARANTOR STATED ABOVE. TO THE EXTENT THAT GUARANTOR HAS OR HEREAFTER
MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL
PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS GUARANTY.
22. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GUARANTOR
AND LENDER EACH HEREBY KNOWINGLY VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT
TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, CAUSE OF ACTION, CLAIM, DEMAND OR
PROCEEDING ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT, OR IN ANY WAY CONNECTED WITH, RELATED TO OR INCIDENTAL TO
THE DEALINGS OF GUARANTOR AND LENDER WITH RESPECT TO THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT, OR THE TRANSACTIONS RELATED HERETO, OR ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER
PARTY IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, GUARANTOR AND LENDER HEREBY AGREE THAT ANY SUCH ACTION, CAUSE OF ACTION,
CLAIM, DEMAND OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND
THAT GUARANTOR OR LENDER MAY FILE AN EXECUTED COPY OF THIS GUARANTY WITH ANY
COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF GUARANTOR AND
LENDER TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY. NO PARTY SHALL SEEK TO
CONSOLIDATE, BY COUNTER CLAIM OR OTHERWISE, ANY ACTION IN WHICH A JURY TRIAL HAS
BEEN WAIVED WITH ANY OTHER ACTION N WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED.
The remainder of this page is left intentionally blank.
IN WITNESS WHEREOF, the Guarantor has executed this Limited Guaranty dated
for reference purposes only as of April 25, 2001.
Prime Group Realty, L.P.,
a Delaware limited partnership
By: Prime Group Realty Trust,
a Maryland real estate investment trust, its
managing general partner
By:[s] Xxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxx, Co-President
EXHIBIT A
[INTENTIONALLY NOT INCLUDED]
