GUARANTY
THIS GUARANTY (the "Guaranty"), dated as of December 14, 1999, is by
FRANCHISE FINANCE CORPORATION OF AMERICA, having an office at 00000 Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000-0000 ("FFCA"), in favor of WASHINGTON
MUTUAL BANK, FA, having an office at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
00000 (the "Purchaser").
RECITALS
WHEREAS, FFCA Acquisition Corporation, an Affiliate of FFCA, originates,
and in the future other Affiliates of FFCA will originate, fixed and adjustable
rate commercial loans secured by various types of commercial properties,
equipment and other assets;
WHEREAS, FFCA has requested the Purchaser to execute and deliver a Master
Loan Purchase Agreement dated of even date herewith, together with the Pricing
Letter dated of even date herewith, between the Seller and the Purchaser
(collectively, as the same may be amended, supplemented or otherwise modified
from time to time, the "Purchase Agreement") pursuant to which the Purchaser
will purchase from such Affiliates, and such Affiliates will sell to the
Purchaser, certain fixed and adjustable rate commercial loans originated by such
Affiliates on the terms and conditions set forth therein;
WHEREAS, FFCA will derive substantial benefit and other good and valuable
consideration from execution, delivery and performance of the Purchase
Agreement; and
WHEREAS, the Purchaser requires FFCA to execute and deliver this Guaranty
concurrently with the Purchaser's execution and delivery of the Purchase
Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, FFCA agrees as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. All capitalized terms used in this Guaranty but
not defined herein shall have the meanings given such terms in the Purchase
Agreement. The term "the Seller" means (i) FFCA Acquisition Corporation, (ii)
any nonqualified real estate investment trust subsidiary of FFCA to which FFCA
Acquisition Corporation assigns its rights and obligations under the Purchase
Agreement pursuant to Section 6.02 thereof, and (iii) each Person that succeeds,
by assignment (including assignment by operation of law), delegation or
otherwise, to any of the rights or duties of "the Seller" under the Purchase
Agreement.
ARTICLE II
GUARANTY
Section 2.01 GUARANTY. FFCA unconditionally, absolutely and irrevocably
guarantees the full and timely payment and performance of all of the Seller's
obligations under the Purchase Agreement. This obligation of FFCA is primary,
joint and several and independent of the obligations of the Seller under the
Purchase Agreement (and the obligation of any other guarantor of the obligations
of the Seller), and, subject to Section 4.06 hereof, a separate action or
actions may be brought and executed against FFCA (or any other such guarantor),
whether or not an action is brought against the Seller or any other such
guarantor and whether or not the Seller or any other such guarantor is joined in
such action or actions.
Section 2.02 ABSOLUTE AND UNCONDITIONAL. This Guaranty is an absolute and
unconditional guaranty of payment and performance and not of collection, and
FFCA unconditionally (a) waives any requirement that the Purchaser first make
demand upon, or seek to enforce or exhaust remedies against, the Seller or any
other person or entity (including any other guarantor) or any of the collateral
or property of the Seller or such other person or entity before demanding
payment or performance from, or seeking to enforce this Guaranty against, FFCA;
(b) waives and agrees not to assert any and all rights, benefits and defenses
that might otherwise be available under the provisions of applicable law, rules
and regulations of government and that might operate, contrary to FFCA's
promises in this Guaranty, to limit FFCA's liability under, or the enforcement
of, this Guaranty; (c) covenants that this Guaranty will not be discharged until
all of the Seller's obligations under the Purchase Agreement are fully
satisfied; (d) agrees that this Guaranty shall remain in full effect without
regard to, and shall not be affected or impaired by, any invalidity,
irregularity or unenforceability in whole or in part of any term of the Purchase
Agreement, or any limitation on the method or terms of payment or performance
thereunder which may now or hereafter be caused or imposed in any manner
whatsoever; and (e) waives notice of acceptance of this Guaranty, and notice of
presentment and protest.
Section 2.03 SUBSEQUENT EVENTS. This Guaranty is a continuing guaranty, and
the obligations, undertakings and conditions to be performed or observed by FFCA
under this Guaranty shall not be affected or impaired by reason of the happening
from time to time of any of the following with respect to the Purchase
Agreement, all without notice to, or the further consent of, FFCA:
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(a) the waiver by the Purchaser of the observance or performance by
the Seller, or FFCA, or both, of any of the obligations, undertakings,
conditions or other provisions contained in the Purchase Agreement, except to
the extent of such waiver;
(b) the extension, in whole or in part, of the time for payment of any
amount or performance of any act due from the Seller under the Purchase
Agreement;
(c) the modification or amendment (whether material or otherwise) of
any of the obligations of the Seller under, or any other provisions of, the
Purchase Agreement, except to the extent of such modification or amendment;
(d) the taking or the omission of any of the actions referred to in
the Purchase Agreement (including, without limitation, the giving of any consent
referred to therein);
(e) any failure, omission, delay or lack on the part of the Purchaser
to enforce, assert or exercise any provision of the Purchase Agreement,
including any right, power or remedy conferred on the Purchaser in the Purchase
Agreement or any action on the part of the Purchaser granting indulgence or
extension in any form;
(f) the assignment to or assumption by any Person of any or all of the
rights or obligations of the Seller under the Purchase Agreement, including but
not limited to the assignment of the Purchase Agreement by FFCA Acquisition
Corporation to one or more nonqualified real estate investment trust
subsidiaries of FFCA contemplated by the defined term "Effective Date" in
Section 1.01 of the Purchase Agreement;
(g) the release or discharge of the Seller from the performance or
observance of any obligation, undertaking or condition to be performed by the
Seller under the Purchase Agreement by operation of law, including any rejection
or disaffirmance of the Purchase Agreement in any bankruptcy or similar
proceedings;
(h) the receipt and acceptance by the Purchaser or any other person or
entity of notes, checks or other instruments for the payment of money, and
extensions and renewals thereof;
(i) any action, inaction or election of remedies by the Purchaser
which results in any impairment or destruction of any subrogation rights of
FFCA, or any rights of FFCA to proceed against any other person or entity for
reimbursement;
(j) any setoff, defense, counterclaim, abatement, recoupment,
reduction, change in law or any other event or circumstance that could not be
asserted by the Seller under the Purchase Agreement, which might otherwise
constitute a legal or equitable discharge or defense of a guarantor, indemnitor
or surety under the laws of any jurisdiction; or
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(k) the termination or renewal of the Seller's obligations under the
Purchase Agreement or any other provision thereof.
Section 2.04 DURATION. This Guaranty shall commence on the date hereof and
shall continue in full force and effect until all of the Seller's obligations
under the Purchase Agreement are duly, finally and permanently paid, performed
and discharged. The obligations shall not be considered fully paid, performed
and discharged unless and until all payments by the Seller to the Purchaser are
no longer subject to any right on the part of any person whomsoever, including
but not limited to the Seller, the Seller as a debtor-in-possession and any
trustee in bankruptcy, to disgorge such payments or seek to recoup the amount of
such payments or any part thereof. The foregoing shall include, by way of
example and not by way of limitation, all rights to recover preferences voidable
under Title 11 of the United States Bankruptcy Code, 11 U.S.C. Sec. 101 ET SEQ.,
as amended. In the event that any such payment by the Seller to the Purchaser is
disgorged after the making thereof, in whole or in part, or settled without
litigation, to the extent of such disgorgement or settlement FFCA shall be
liable for the full amount the Purchaser is required to repay plus interest,
late charges, attorney's fees and any and all expenses paid or incurred by the
Purchaser in connection therewith.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 REPRESENTATIONS AND WARRANTIES OF FFCA. FFCA represents and
warrants to the Purchaser as of the date of this Guaranty:
(a) FFCA is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and FFCA has full power,
authority and legal right to execute and deliver this Guaranty and to perform
its obligations under this Guaranty.
(b) The execution and delivery by FFCA of this Guaranty and the
performance by FFCA of its obligations under this Guaranty have been duly and
validly authorized and will not violate its organizational documents, any
provision of any law or regulation governing FFCA, or any order, writ, judgment
or decree of any arbitrator, court or other governmental authority applicable to
it or any of its assets; nor will execution, delivery or performance of this
Guaranty by FFCA require the authorization, consent or approval of, the giving
of notice to, the filing or registration with, or the taking of any other action
by, any arbitrator, court or other governmental authority, or conflict with, or
result in a breach or violation of, any indenture or other agreement or
instrument to which FFCA is a party or by which it or its assets are bound.
(c) This Guaranty has been duly executed and delivered by FFCA and
constitutes a valid, legal and binding obligation of FFCA, enforceable against
FFCA in accordance with the terms hereof, subject to (i) applicable bankruptcy,
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insolvency, reorganization, moratorium and other laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity, regardless
whether such enforcement is considered in a proceeding in equity or at law.
(d) No litigation is pending or, to the knowledge of FFCA, threatened
against it that, if determined adversely to it, would prohibit FFCA from
entering into this Guaranty or that, in FFCA's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability of
FFCA to perform its obligations under this Guaranty or its financial condition.
(e) The representations and warranties of FFCA set forth herein shall
survive execution and delivery of this Guaranty and shall inure to the
Purchaser. Upon discovery of any breach of any of the foregoing representations
and warranties, FFCA shall give prompt written notice to the Purchaser.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01 GOVERNING LAW. This Guaranty shall be construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed in such state, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 4.02 NOTICES. All notices, requests and other communications
hereunder shall be in writing and, unless otherwise provided herein, shall be
deemed to have been duly given if delivered by courier or mailed by first class
mail, postage prepaid, or if transmitted by telecopier and confirmed by
telephone or in a writing delivered or mailed as aforesaid, (a) in the case of
FFCA, to FFCA at The Perimeter Center, 00000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxx, Esq., telecopy number: (480)
000-0000, telephone number: (000) 000-0000, and (b) in the case of the
Purchaser, to the Purchaser at 0000 Xxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention:
Xxxxxx X. Xxxxxx, mailstop: WMT-1020; telecopy: (000) 000-0000; telephone: (206)
000-0000, with a copy to Xxxxxx X. Xxxxxxx, mailstop: WMT-1020, telecopy number:
(000) 000-0000, telephone number: (000) 000-0000; or, as to each such party, to
such other address and telecopy number as shall be designated by such person in
a written notice to all parties hereto. Any notice required or permitted to be
delivered to any party hereunder shall be deemed to have been duly given on the
date delivered to or received at the premises of the addressee.
Section 4.03 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Guaranty shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
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provisions or terms of this Guaranty and shall in no way affect the validity or
enforceability of the other provisions of this Guaranty.
Section 4.04 EFFECT OF HEADINGS. The article and section headings herein
are for convenience of reference only and shall not limit or otherwise affect
the construction hereof.
Section 4.05 SUCCESSORS AND ASSIGNS. The provisions of this Guaranty shall
be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 4.06 DISPUTE RESOLUTION. FFCA by execution and delivery of this
Guaranty, and the Purchaser by acceptance of this Guaranty, agree that any
dispute that arises between them under this Guaranty (but not any dispute in
which the Bailee or the Title Company is also a disputant) shall be considered a
"Covered Dispute" as defined in the Purchase Agreement and resolved in
accordance with the dispute resolution mechanisms set forth in Section 9.10 of
the Purchase Agreement. FFCA and the Purchaser shall be bound by the terms of
said Section 9.10; be entitled to participate, as a party, in any proceeding
commenced under said Section to resolve such a dispute; and be bound by the
written decision/award of the arbitration tribunal. At the request of either
party hereto, any arbitration proceeding under this Guaranty may be consolidated
with any arbitration proceeding pending between the Seller and the Purchaser
under the Purchase Agreement, the Master Bailee Agreement or the Master Escrow
Agreement if that proceeding arises out of the same facts and circumstances or
relates to the same subject matter. Consolidation will be by order of the
arbitration tribunal in any of the pending proceedings, or, if the arbitration
tribunals fail to make such an order, any party may apply to any court of
competent jurisdiction for such an order.
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IN WITNESS WHEREOF, FFCA has caused this Guaranty to be duly executed by an
officer as of the day and year first above written.
FRANCHISE FINANCE CORPORATION OF AMERICA
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
STATE OF Arizona )
) ss.
COUNTY OF Maricopa )
On the 10th day of December, 1999, before me, a notary public in and for
said State, personally appeared Xxxxxx X. Xxxxxxxxx, known to me to be the
President of Franchise Finance Corporation of America, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxx
-----------------------------------
Notary Public
[Notarial Seal]
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