AMENDED AND RESTATED AND CONSOLIDATED LIMITED GUARANTY (Secured Loan)
Exhibit 10.33
Loan No. 1002835
AMENDED AND RESTATED AND CONSOLIDATED LIMITED GUARANTY
(Secured Loan)
THIS AMENDED AND RESTATED AND CONSOLIDATED LIMITED GUARANTY (“Guaranty”) is made as of January 27, 2011, by KBS REIT PROPERTIES II, LLC, a Delaware limited liability company (“Guarantor”), in favor of XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Administrative Agent”), as administrative agent for itself and the Lenders from time to time a party to the Loan Agreement (defined below).
R E C I T A L S
| A. | KBSII Xxxxxxx Business Center, LLC, a Delaware limited liability company, KBSII Plano Business Park, LLC, a Delaware limited liability company, KBSII Horizon Tech Center, LLC, a Delaware limited liability company, KBSII 0000 Xxxxxx Xxxxxxxxx, LLC, a Delaware limited liability company, KBSII Crescent VIII, LLC, a Delaware limited liability company (together, “Original Horizon Borrowers”), Administrative Agent and Lenders previously executed a Loan Agreement, dated September 30, 2010 (the “Horizon Loan Agreement”), whereby Lenders made a loan to Original Horizon Borrowers in the original principal amount of $50,000,000 (the “Original Horizon Loan”). The Original Horizon Loan is secured by liens on certain real properties located in the states of California, Texas, Georgia and Colorado (the “Horizon Properties”). In connection with the Original Horizon Loan, Guarantor executed a Limited Guaranty, dated September 30, 2010 (the “Horizon Guaranty”). |
| B. | KBSII National City Tower, LLC, a Delaware limited liability company (the “Original National City Borrower,” together with the Original Horizon Borrowers, collectively, the “Original Borrowers”), Administrative Agent and Lenders previously executed a Loan Agreement, dated December 16, 2010 (the “National City Loan Agreement”), whereby Lenders made a loan to Original National City Borrower in the original principal amount of $69,000,000 (the “Original National City Loan,” and, together with the Original Horizon Loan, collectively, the “Original Loan”). The Original National City Loan is secured by a lien on certain real property located in Kentucky (the “National City Property,” and, together with the Horizon Properties, collectively, the “Original Properties”). In connection with the Original National City Loan, Guarantor executed a Limited Guaranty, dated December 16, 2010 (the “National City Guaranty”). |
| C. | Original Borrowers, KBSII Granite Tower, LLC, a Delaware limited liability company (“Granite Borrower”), KBSII Gateway Corporate Center, LLC, a Delaware limited liability company (“Gateway Borrower,” and, together with Original Borrowers and Granite Borrower, collectively, the “Borrowers,” and each individually, a “Borrower”), Administrative Agent and Lenders have entered into an Amended and Restated and Consolidated Loan Agreement, dated as of even date herewith (the “Loan Agreement”), whereby Lenders have agreed to lend to Borrowers and Borrowers have agreed to borrow from Lenders a principal amount of up to Three Hundred Sixty Million Dollars ($360,000,000), which amount may be increased to Three Hundred Seventy-Two Million Dollars ($372,000,000), subject to the terms of the Loan Agreement (the “Loan”). |
| D. | The Loan is evidenced by one or more secured promissory notes in the aggregate principal amount of the Loan (collectively, as the same may amended, modified or replaced from time to time, the “Note”) executed by Borrowers in favor of Lenders pursuant to the terms of the Loan Agreement, and is further evidenced by the documents described in the Loan Agreement as the “Loan Documents”. The Note is secured by, among other things, the Security Documents. All capitalized terms not otherwise defined herein shall have the meanings given to them in the Loan Agreement. |
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| E. | As a condition to Administrative Agent’s and Lenders’ agreement to enter into the Loan Agreement and to make the Loan, Guarantor has agreed to enter into this Guaranty, which amends, restates, consolidates and replaces the Horizon Guaranty and the National City Guaranty. |
| F. | Guarantor is the direct or indirect owner of each of the Borrowers and will benefit from the Loan Agreement. |
THEREFORE, to induce Administrative Agent and Lenders to enter into the Loan Agreement, and in consideration thereof, Guarantor unconditionally, absolutely and irrevocably guarantees and agrees as follows:
| 1. | GUARANTY. Upon the occurrence of any event referred to in Section 11.1(f)(i) (provided, that, for purposes of this Guaranty, the 60-day time period for dismissal referred to in Section 11.1(f)(i) shall be increased to 120 days) or Section 11.1(g) of the Loan Agreement, Guarantor guarantees and promises to pay to Administrative Agent, or order, on demand, in lawful money of the United States, in immediately available funds, the entire principal sum which is now or hereafter due and owing under the Note or any of the other Loan Documents, together with interest and any other sums payable under the Note. Guarantor further guarantees and promises to pay to Administrative Agent, or order, on demand, in lawful money of the United States, in immediately available funds, and to defend, indemnify and hold harmless Administrative Agent and Lenders, their directors, officers, employees, successors and assigns from and against all losses, damages, liabilities, claims, actions, judgments, court costs and legal and other expenses (including, without limitation, attorneys’ fees and expenses) which Administrative Agent or any Lender may incur as a direct or indirect consequence of (a) fraud or willful misrepresentation by any Borrower, Guarantor, the Manager, KBS Real Estate Investment Trust II, Inc. (“KBS REIT”), or any other Affiliate of Guarantor or KBS REIT (collectively, “Borrowers or their Affiliate”); (b) intentional physical waste of any real property constituting collateral for the Loan (“Property”) by any Borrower or its Affiliate; (c) intentional misapplication or misappropriation by any Borrower or its Affiliate of (i) proceeds paid under any insurance policy by reason of damage, loss or destruction affecting any portion of the Property, or (ii) any proceeds or awards resulting from condemnation of all or any part of the Property or any deed given in lieu thereof; (d) intentional misapplication or misappropriation by Borrowers or their Affiliate of rents received after receipt by Borrowers, or any of them, of any notice of default, foreclosure or the exercise of the power of sale under the Security Documents, or any of them, or any other remedies by Administrative Agent upon a default by Borrowers; (e) intentional misappropriation or misapplication by Borrowers or their Affiliate of any funds disbursed to Borrowers, or any of them, from any Account; (f) Borrowers’ breach of the covenants set forth in Section 9.17(a) of the Loan Agreement; (g) Borrower’s failure to maintain the policies of casualty and/or terrorism insurance required pursuant to the terms of the Loan Agreement, provided (i) such insurance is available at commercially reasonable rates and (ii) there is sufficient cash flow from the Properties to pay the premiums for such insurance (which premiums shall be paid before debt service); or (h) subject to Section 3 below, Administrative Agent’s inability to obtain and/or apply proceeds of casualty insurance resulting from a casualty at the Property owned by Granite Borrower (the “Granite Property”) in accordance with the terms of the Security Document recorded against the Granite Property but only to the extent Administrative Agent is prevented or prohibited from so obtaining or applying proceeds of insurance due to the provisions of the Amended and Restated Master Declaration of Block 95 Condominiums, dated December 16, 2005 (as amended, the “Declaration”). |
| 2. | REMEDIES. If Guarantor fails to promptly perform its obligations under this Guaranty, Administrative Agent may from time to time, and without first requiring performance by Borrowers or exhausting any or all security for the Loan, bring any action at law or in equity or both to compel Guarantor to perform its obligations hereunder, and to collect in any such action |
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| compensation for all loss, cost, damage, injury and expense sustained or incurred by Administrative Agent and/or Lenders as a direct or indirect consequence of the failure of Guarantor to perform its obligations hereunder, together with interest thereon at the rate of interest applicable to the principal balance of the Note. |
| 3. | LIMITATION OF LIABILITY. Notwithstanding anything to the contrary, if Guarantor delivers to Administrative Agent an estoppel certificate or other writing in favor of Administrative Agent, for the benefit of Lenders, executed by each of the members of the Board of Directors (as defined in the Declaration), which estoppel certificate or other writing (a) confirms (i) that Granite Borrower is authorized to maintain its own policy of casualty insurance with respect to the Granite Property, (ii) that Granite Borrower has named Administrative Agent as a loss payee on Granite Borrower’s policy of casualty insurance insuring the Granite Property and (iii) that upon the occurrence of a casualty at the Granite Property, Administrative Agent shall have the right to receive any casualty insurance proceeds resulting from such casualty and to apply such proceeds in the manner contemplated by the Security Document recorded against the Granite Property, and (b) is otherwise in form and substance reasonably acceptable to Administrative Agent, then following Administrative Agent’s receipt of such estoppel certificate or other writing , Guarantor shall have no further liability under clause (h) of Section 1 above; provided, however, that Guarantor’s liability under clause (h) of Section 1 shall be reinstated if at any time the Association either (i) is named as a loss payee on Granite Borrower’s policy of casualty insurance or (ii) purchases a separate policy of casualty insurance with respect to the Granite Property. |
| 4. | RIGHTS OF ADMINISTRATIVE AGENT. Guarantor authorizes Administrative Agent, without giving notice to Guarantor or obtaining Guarantor’s consent and without affecting the liability of Guarantor, from time to time to: (a) renew or extend all or any portion of Borrowers’ obligations under the Note or any of the other Loan Documents; (b) declare all sums owing to any Lender under the Note and the other Loan Documents due and payable upon the occurrence of a Default (as defined in the Loan Agreement) under the Loan Documents; (c) make non-material changes in the dates specified for payments of any sums payable in periodic installments under the Note or any of the other Loan Documents; (d) otherwise modify the terms of any of the Loan Documents, except for (i) increases in the principal amount of the Note or changes in the manner by which interest rates, fees or charges are calculated under the Note and the other Loan Documents (Guarantor acknowledges that if the Note or other Loan Documents so provide, said interest rates, fees and charges may vary from time to time) or (ii) advancement of the Maturity Date of the Note where no Default has occurred under the Loan Documents; (e) take and hold security for the performance of Borrowers’ obligations under the Note or the other Loan Documents and exchange, enforce, waive and release any such security; (f) apply such security and direct the order or manner of sale thereof as Administrative Agent in its discretion may determine; (g) release, substitute or add any one or more endorsers of the Note or guarantors of Borrowers’ obligations under the Note or the other Loan Documents; (h) apply payments received by Administrative Agent from Borrowers to any obligations of Borrowers to Administrative Agent, in such order as Administrative Agent shall determine in its sole discretion, whether or not any such obligations are covered by this Guaranty; (i) assign this Guaranty in whole or in part; and (j) assign, transfer or negotiate all or any part of the indebtedness evidenced by the Note and the other Loan Documents. |
| 5. | GUARANTOR’S WAIVERS. Guarantor waives: (a) any defense based upon any legal disability or other defense of Borrowers, any other guarantor or other person, or by reason of the cessation or limitation of the liability of Borrowers from any cause other than full payment of all sums payable under the Note or any of the other Loan Documents; (b) any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of any Borrower or any principal of any Borrower or any defect in the formation of any Borrower or any principal of any Borrower; (c) any defense based upon the application by any Borrower of the proceeds of the Loan for purposes other than the purposes represented by Borrowers to |
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| Administrative Agent or intended or understood by Administrative Agent or Guarantor; (d) any right and defense arising out of an election of remedies by Administrative Agent, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Guarantor’s rights of subrogation and reimbursement against Borrowers, or any of them, by the operation of Section 580d of the California Code of Civil Procedure or otherwise; (e) any defense based upon Administrative Agent’s failure to disclose to Guarantor any information concerning any Borrower’s financial condition or any other circumstances bearing on Borrowers’ ability to pay all sums payable under the Note or any of the other Loan Documents; (f) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal; (g) any defense based upon Administrative Agent’s election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code or any successor statute; (h) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Federal Bankruptcy Code; (i) any right of subrogation, any right to enforce any remedy which Administrative Agent may have against Borrowers and any right to participate in, or benefit from, any security for the Note or the other Loan Documents now or hereafter held by Administrative Agent; (j) presentment, demand, protest and notice of any kind; (k) the benefit of any statute of limitations affecting the liability of Guarantor hereunder or the enforcement hereof; and (l) any rights under California Code of Civil Procedure Sections 580a and 726(b), which provide, among other things, that (i) a creditor must file a complaint for deficiency within three (3) months of a nonjudicial foreclosure sale or judicial foreclosure sale, as applicable, (ii) a fair market value hearing must be held, and (iii) the amount of the deficiency judgment shall be limited to the amount by which the unpaid debt exceeds the fair market value of the security, but not more than the amount by which the unpaid debt exceeds the sale price of the security. Guarantor further waives any and all rights and defenses that Guarantor may have because Borrowers’ debt is secured by real property; this means, among other things, that: (1) Administrative Agent may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by Borrowers; (2) if Administrative Agent forecloses on any real property collateral pledged by Borrowers, then (A) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (B) Administrative Agent may collect from Guarantor even if Administrative Agent, by foreclosing on the real property collateral, has destroyed any right Guarantor may have to collect from Borrowers. The foregoing sentence is an unconditional and irrevocable waiver of any rights and defenses Guarantor may have because Borrowers’ debt is secured by real property. These rights and defenses being waived by Guarantor include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure. Without limiting the generality of the foregoing or any other provision hereof, Guarantor further expressly waives to the extent permitted by law any and all rights and defenses, including without limitation any rights of subrogation, reimbursement, indemnification and contribution, which might otherwise be available to Guarantor under California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433, or under California Code of Civil Procedure Sections 580a, 580b, 580d and 726, or any of such sections. Finally, Guarantor agrees that the performance of any act or any payment which tolls any statute of limitations applicable to the Note or any of the other Loan Documents shall similarly operate to toll the statute of limitations applicable to Guarantor’s liability hereunder. |
| 6. | GUARANTOR’S WARRANTIES. Guarantor warrants and acknowledges that: (a) Administrative Agent and Lenders would not make the Loan but for this Guaranty; (b) there are no conditions precedent to the effectiveness of this Guaranty; (c) Guarantor has established adequate means of obtaining from sources other than Administrative Agent, on a continuing basis, financial and other information pertaining to Borrowers’ financial condition, the Property and Borrowers’ activities relating thereto and the status of Borrowers’ performance of obligations under the Loan Documents, and Guarantor agrees to keep adequately informed from such means of any facts, events or circumstances which might in any way affect Guarantor’s risks hereunder and |
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| Administrative Agent has made no representation to Guarantor as to any such matters; (d) the most recent financial statements of Guarantor previously delivered to Administrative Agent are true and correct in all respects, have been prepared in accordance with generally accepted accounting principles consistently applied (or other principles acceptable to Administrative Agent and Lenders) and fairly present the financial condition of Guarantor as of the respective dates thereof, and no material adverse change has occurred in the financial condition of Guarantor since the respective dates thereof; and (e) Guarantor has not and will not, without the prior written consent of Administrative Agent, sell, lease, assign, encumber, hypothecate, transfer or otherwise dispose of all or substantially all of Guarantor’s assets, or any interest therein, other than in the ordinary course of Guarantor’s business. Notwithstanding the foregoing, or anything to the contrary, the calculation of the liabilities of Guarantor shall not include any fair value adjustments to the carrying value of liabilities to record such liabilities at fair value pursuant to electing the fair value option election under FASB ASC 000-00-00 (formerly known as FAS 159, The Fair Value Option for Financial Assets and Financial Liabilities) or other FASB standards allowing entities to elect fair value option for financial liabilities. Therefore, the amount of liabilities shall be the historical cost basis, which generally is the contractual amount owed adjusted for amortization or accretion of any premium or discount. |
| 7. | SUBORDINATION. Guarantor subordinates all present and future indebtedness owing by Borrowers, or any of them, to Guarantor to the obligations at any time owing by Borrowers to Administrative Agent and/or Lenders under the Note and the other Loan Documents. Guarantor assigns all such indebtedness to Administrative Agent for the benefit of Lenders as security for this Guaranty, the Note and the other Loan Documents. Guarantor agrees to make no claim for such indebtedness until all obligations of Borrowers under the Note and the other Loan Documents have been fully discharged. Guarantor agrees that it will not take any action or initiate any proceedings, judicial or otherwise, to enforce Guarantor’s rights or remedies with respect to any such indebtedness, including without limitation any action to enforce remedies with respect to any defaults under such indebtedness or to any collateral securing such indebtedness or to obtain any judgment or prejudgment remedy against Borrowers or any such collateral. Guarantor also agrees that it will not commence or join with any other creditor or creditors of Borrowers in commencing any bankruptcy, reorganization or insolvency proceedings against Borrowers. Guarantor further agrees not to assign all or any part of such indebtedness unless Administrative Agent is given prior notice and such assignment is expressly made subject to the terms of this Guaranty. If Administrative Agent so requests, (a) all instruments evidencing such indebtedness shall be duly endorsed and delivered to Administrative Agent, (b) all security for such indebtedness shall be duly assigned and delivered to Administrative Agent, (c) such indebtedness shall be enforced, collected and held by Guarantor as trustee for Administrative Agent and shall be paid over to Administrative Agent on account of the Loan but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty, and (d) Guarantor shall execute, file and record such documents and instruments and take such other action as Administrative Agent deems necessary or appropriate to perfect, preserve and enforce Administrative Agent’s rights in and to such indebtedness and any security therefor. If Guarantor fails to take any such action, Administrative Agent, as attorney-in-fact for Guarantor, is hereby authorized to do so in the name of Guarantor. The foregoing power of attorney is coupled with an interest and cannot be revoked. |
| 8. | BANKRUPTCY OF A BORROWER. In any bankruptcy or other proceeding in which the filing of claims is required by law, Guarantor shall file all claims which Guarantor may have against any Borrower relating to any indebtedness of such Borrower to Guarantor and shall assign to Administrative Agent all rights of Guarantor thereunder. If Guarantor does not file any such claim, Administrative Agent, as attorney-in-fact for Guarantor, is hereby authorized to do so in the name of Guarantor or, in Administrative Agent’s discretion, to assign the claim to a nominee and to cause proof of claim to be filed in the name of Administrative Agent’s nominee. The foregoing power of attorney is coupled with an interest and cannot be revoked. Administrative Agent or its nominee shall have the right, in its reasonable discretion, to accept or reject any plan proposed in |
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| such proceeding and to take any other action which a party filing a claim is entitled to do. In all such cases, whether in administration, bankruptcy or otherwise, the person or persons authorized to pay such claim shall pay to Administrative Agent the amount payable on such claim and, to the full extent necessary for that purpose, Guarantor hereby assigns to Administrative Agent all of Guarantor’s rights to any such payments or distributions; provided, however, Guarantor’s obligations hereunder shall not be satisfied except to the extent that Administrative Agent receives cash by reason of any such payment or distribution. If Administrative Agent receives anything hereunder other than cash, the same shall be held as collateral for amounts due under this Guaranty. If all or any portion of the obligations guaranteed hereunder are paid or performed, the obligations of Guarantor hereunder shall continue and shall remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from Administrative Agent as a preference, fraudulent transfer or otherwise under the Bankruptcy Code or other similar laws, irrespective of (a) any notice of revocation given by Guarantor prior to such avoidance or recovery, or (b) full payment and performance of all of the indebtedness and obligations evidenced and secured by the Loan Documents. |
| 9. | LOAN SALES AND PARTICIPATIONS; DISCLOSURE OF INFORMATION. Subject to the limitations set forth in the Loan Agreement, Guarantor agrees that Administrative Agent may elect, at any time, to sell, assign, or grant participations in all or any portion of its rights and obligations under the Loan Documents and this Guaranty, and that any such sale, assignment or participation may be to one or more financial institutions, private investors, and/or other entities, at Administrative Agent’s sole discretion. Guarantor further agrees that Administrative Agent may disseminate to any such actual or potential purchaser(s), assignee(s) or participant(s) all documents and information (including, without limitation, all financial information) which has been or is hereafter provided to or known to Administrative Agent with respect to: (a) the Property and its operation; (b) any party connected with the Loan (including, without limitation, the Guarantor, any Borrower, any partner of any Borrower, any constituent partner of any Borrower, any other guarantor and any non-borrower trustor); and/or (c) any lending relationship other than the Loan which Administrative Agent may have with any party connected with the Loan. In the event of any such sale, assignment or participation, Administrative Agent and the parties to such transaction shall share in the rights and obligations of Administrative Agent as set forth in the Loan Documents only as and to the extent they agree among themselves. In connection with any such sale, assignment or participation, Guarantor further agrees that the Guaranty shall be sufficient evidence of the obligations of Guarantor to each purchaser, assignee, or participant, and upon written request by Administrative Agent, Guarantor shall, within fifteen (15) days after request by Administrative Agent, (x) deliver to Administrative Agent and any other party designated by Administrative Agent an estoppel certificate, in form and substance acceptable to Administrative Agent, verifying for the benefit of Administrative Agent and any such other party the status, terms and provisions of this Guaranty, and (y) enter into such amendments or modifications to this Guaranty and the Loan Documents as Administrative Agent may reasonably request in order to evidence and facilitate any such sale, assignment, or participation without impairing Guarantor’s rights or increasing Guarantor’s obligations hereunder. |
| Anything in this Agreement to the contrary notwithstanding, and without the need to comply with any of the formal or procedural requirements of this Agreement, including this Section, any lender may at any time and from time to time pledge and assign all or any portion of its rights under all or any of the Loan Documents to a Federal Reserve Bank; provided that no such pledge or assignment shall release such lender from its obligations thereunder. |
| 10. | ADDITIONAL, INDEPENDENT AND UNSECURED OBLIGATIONS. This Guaranty is a continuing guaranty of payment and not of collection and cannot be revoked by Guarantor and shall continue to be effective with respect to any indebtedness referenced in Section 1 hereof arising or created after any attempted revocation hereof or after the death of Guarantor (if Guarantor is a natural person, in which event this Guaranty shall be binding upon Guarantor’s |
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| estate and Guarantor’s legal representatives and heirs). The obligations of Guarantor hereunder shall be in addition to and shall not limit or in any way affect the obligations of Guarantor under any other existing or future guaranties unless said other guaranties are expressly modified or revoked in writing. This Guaranty is independent of the obligations of Borrowers under the Note, the Security Documents and the other Loan Documents. Guarantor hereby authorizes and empowers Administrative Agent to exercise, in its sole discretion, any rights and remedies, or any combination thereof, which may then be available, since it is the intent and purpose of Guarantor that the obligations hereunder shall be absolute, independent and unconditional under any and all circumstances. Administrative Agent may bring a separate action to enforce the provisions hereof against Guarantor without taking action against Borrowers or any other party or joining Borrowers or any other party as a party to such action. Except as otherwise provided in this Guaranty, this Guaranty is not secured and shall not be deemed to be secured by any security instrument unless such security instrument expressly recites that it secures this Guaranty. |
| 11. | ATTORNEYS’ FEES; ENFORCEMENT. If any attorney is engaged by Administrative Agent to enforce or defend any provision of this Guaranty, or any of the other Loan Documents, or as a consequence of any Default under the Loan Documents, with or without the filing of any legal action or proceeding, Guarantor shall pay to Administrative Agent, immediately upon demand all attorneys’ fees and costs incurred by Administrative Agent in connection therewith, together with interest thereon from the date of such demand until paid at the rate of interest applicable to the principal balance of the Note as specified therein. |
| 12. | RULES OF CONSTRUCTION. The term “Borrowers” as used herein shall include both the named Borrowers and any other person at any time assuming or otherwise becoming primarily liable for all or any part of the obligations of the named Borrowers under the Note and the other Loan Documents. The term “person” as used herein shall include any individual, company, trust or other legal entity of any kind whatsoever. If this Guaranty is executed by more than one person, the term “Guarantor” shall include all such persons. When the context and construction so require, all words used in the singular herein shall be deemed to have been used in the plural and vice versa. All headings appearing in this Guaranty are for convenience only and shall be disregarded in construing this Guaranty. |
| 13. | CREDIT REPORTS. Each legal entity and individual obligated on this Guaranty hereby authorizes Administrative Agent to order and obtain, from a credit reporting agency of Administrative Agent’s choice, a third party credit report on such legal entity and individual. |
| 14. | GOVERNING LAW. This Guaranty shall be governed by, and construed in accordance with, the laws of the State of California, except to the extent preempted by federal laws. Guarantor and all persons and entities in any manner obligated to Administrative Agent and Lenders under this Guaranty consent to the jurisdiction of any federal or state court within the State of California having proper venue and also consent to service of process by any means authorized by California or federal law. |
| 15. | ELECTRONIC DOCUMENT DELIVERIES. Documents required to be delivered pursuant to this Guaranty shall be delivered by electronic communication and delivery, including, the internet, e-mail or intranet websites to which the Administrative Agent and each Lender have access (including a commercial, third-party website such as xxx.xxxxx.xxx <xxxx://xxx.xxxxx.xxx> or a website sponsored or hosted by the administrative agent or the Borrowers) provided that the foregoing shall not apply to notices to a Lender that have not notified the Administrative Agent or Guarantor that it cannot or does not want to receive electronic communications. The Administrative Agent or the Guarantor may, in its discretion, agree to accept notices and other communications to it hereunder by electronic delivery pursuant to procedures approved by it for all or particular notices or communications. Documents or notices delivered electronically shall be deemed to have been delivered twenty-four (24) hours after the date and time on which the |
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| Administrative Agent or Guarantor posts such documents or the documents become available on a commercial website and the Administrative Agent or Guarantor notify each Lender of said posting and provides a link thereto provided if such notice or other communication is not sent or posted during the normal business hours of the recipient, said posting date and time shall be deemed to have commenced as of 9:00 a.m. on the opening of business on the next business day for the recipient. |
| 16. | MISCELLANEOUS. The provisions of this Guaranty will bind and benefit the heirs, executors, administrators, legal representatives, nominees, successors and assigns of Guarantor, Administrative Agent and Lenders. The liability of all persons and entities who are in any manner obligated hereunder shall be joint and several. If any provision of this Guaranty shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that portion shall be deemed severed from this Guaranty and the remaining parts shall remain in full force as though the invalid, illegal or unenforceable portion had never been part of this Guaranty. This Guaranty shall be deemed to be continuing in nature and shall remain in full force and effect and shall survive the exercise of any remedy by Administrative Agent under any Security Document or any other Loan Document, including without limitation any foreclosure or deed in lieu thereof. |
| 17. | ADDITIONAL PROVISIONS. Such additional terms, covenants and conditions as may be set forth on any exhibit executed by Guarantor and attached hereto which recites that it is an exhibit to this Guaranty are incorporated herein by this reference. |
| 18. | ENFORCEABILITY. Guarantor hereby acknowledges that: (a) the obligations undertaken by Guarantor in this Guaranty are complex in nature, and (b) numerous possible defenses to the enforceability of these obligations may presently exist and/or may arise hereafter, and (c) as part of Administrative Agent and Lenders’ consideration for entering into this transaction, Administrative Agent and Lenders have specifically bargained for the waiver and relinquishment by Guarantor of all such defenses, and (d) Guarantor has had the opportunity to seek and receive legal advice from skilled legal counsel in the area of financial transactions of the type contemplated herein. Given all of the above, Guarantor does hereby represent and confirm to Administrative Agent and Lenders that Guarantor is fully informed regarding, and that Guarantor does thoroughly understand: (i) the nature of all such possible defenses, and (ii) the circumstances under which such defenses may arise, and (iii) the benefits which such defenses might confer upon Guarantor, and (iv) the legal consequences to Guarantor of waiving such defenses. Guarantor acknowledges that Guarantor makes this Guaranty with the intent that this Guaranty and all of the informed waivers herein shall each and all be fully enforceable by Administrative Agent and Lenders, and that Administrative Agent and Lenders are induced to enter into this transaction in material reliance upon the presumed full enforceability thereof. |
| 19. | WAIVER OF RIGHT TO TRIAL BY JURY. TO THE EXTENT PERMITTED BY THEN APPLICABLE LAW, EACH PARTY TO THIS GUARANTY, AND BY ITS ACCEPTANCE HEREOF, ADMINISTRATIVE AGENT AND LENDERS, HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THE LOAN DOCUMENTS (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY, ADMINISTRATIVE AGENT AND LENDERS HEREBY AGREE AND CONSENT THAT ANY PARTY TO THIS GUARANTY AND ADMINISTRATIVE AGENT AND LENDERS MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS |
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| WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO AND ADMINISTRATIVE AGENT AND LENDERS TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR ADMINISTRATIVE AGENT AND LENDERS TO MAKE THE LOAN TO BORROWERS. |
| 20. | AMENDED AND RESTATED GUARANTY. This Guaranty amends, restates, consolidates and replaces the Horizon Guaranty and the National City Guaranty (together, the “Existing Guaranty”); provided, such amendment, restatement, consolidation and replacement of the Existing Guaranty by this Guaranty shall not cause or constitute a novation, release, impairment or discharge of the obligations existing under the Existing Guaranty. |
[Signature on following page.]
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IN WITNESS WHEREOF, Guarantor duly executed this Guaranty as of the date first written above.
| “Guarantor” | ||||||
| KBS REIT PROPERTIES II, LLC, | ||||||
| a Delaware limited liability company | ||||||
| By: | KBS LIMITED PARTNERSHIP II, | |||||
| a Delaware limited partnership, its sole member | ||||||
| By: | KBS REAL ESTATE INVESTMENT TRUST II, INC., | |||||
| a Maryland corporation, general partner | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. | |||||
| Xxxxxxx X. Xxxxxxxxx, Xx. | ||||||
| Chief Executive Officer | ||||||
Address of Guarantor:
KBS REIT Properties II, LLC
c/o KBS Capital Advisors LLC
Xxxx Xxxxx, VP Controller, Corporate
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxx@xxxxxxxxx.xxx
Address of Administrative Agent:
Xxxxx Fargo Bank, National Association
Real Estate Group
Orange County
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
| Attn: | Xxxxx Xxxxxxx | |
| Senior Vice President | ||
| Tel: | (000) 000-0000 | |
| Fax: | (000) 000-0000 |
Signature Page – Amended and Restated and Consolidated Limited Guaranty
