0
XXXXXXX 00.0
Xxx Xxxx, Xxx Xxxx
As of April 28, 2000
AMENDED AND RESTATED GUARANTY OF PAYMENT
THIS AMENDED AND RESTATED GUARANTY OF PAYMENT is made as of the 28th day of
April, 2000 by Guarantor (hereinafter defined) and Lender (hereinafter defined).
Lender is the current owner and holder of that certain guaranty of payment
described on Schedule A attached hereto and made a part hereof (the "Existing
Guaranty").
Guarantor and Lender desire to amend and restate the Existing Guaranty in
its entirety.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and in and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby covenant and agree that all of the terms,
provisions and obligations contained in the Existing Guaranty are hereby amended
and restated in their entirety to read as follows:
FOR VALUE RECEIVED, and to induce XXXXXX XXX, INC., a Delaware corporation,
having an address at Three World Financial Center, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("Lender"), to lend to POINTE ORLANDO DEVELOPMENT COMPANY, a
California general partnership ("Borrower"), the principal sum of SEVENTY-EIGHT
MILLION FOUR HUNDRED SEVENTY-FOUR THOUSAND SEVEN HUNDRED TWENTY-FOUR AND 90/100
DOLLARS ($78,474,724.90) (the "Loan"), evidenced by the Note (as defined in the
Loan Agreement (hereinafter defined)) and secured by the Security Instrument (as
defined in the Loan Agreement), and by other documents executed in connection
therewith (the "Other Security Documents"). The term "Loan Agreement", as used
herein, shall mean, that certain amended and restated the Original Loan
Agreement pursuant to that certain Second Amended and Restated Construction Loan
Agreement dated April 20, 1998, as amended.
The undersigned, NEW PLAN EXCEL REALTY TRUST, INC. having an address at
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ( "Guarantor") hereby
absolutely and unconditionally guarantees to Lender the prompt and unconditional
payment and performance of the Guaranteed Obligations (hereinafter defined). The
term "Guaranteed Obligations", as used herein, shall mean (i) a portion of the
outstanding amount of the Debt (hereinafter defined) in excess of $63,474,724.90
(the "Guaranty Amount"), (ii) Building 5 Liens (as defined in the Loan
Agreement), and (iii) delivery of the Required Letter of Credit (as defined in
the Loan Agreement), if applicable, provided, however, the Guaranty Amount shall
be reduced to be a portion of the outstanding amount of the Debt (hereinafter
defined) in excess of $68,474,724.90 in the event Borrower complies with the
Leasing Requirements (hereinafter defined), but the Guaranty Amount shall not be
reduced by any payment by the title insurance company resulting from a claim by
Lender in connection with any Building 5 Liens.
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The term "Leasing Requirements", as used herein, shall mean the delivery by
Borrower to Lender of either (a) written estoppel certificates from tenants
currently in occupancy ("Existing Tenants") at the Project (each, an "Estoppel
Certificate") or (b) a certification of Borrower with respect to the Existing
Tenants (a "Certification"; together with the Estoppel Certificates,
individually and collectively, as the context may require, a "Lease
Affirmation"), which Lease Affirmations shall state, among other things, (the
"Required Information") that (i) all of Borrower's obligations with respect to
tenant improvements and tenant installations have been completed in compliance
with the applicable leases and Borrower has no knowledge of any objection by the
Existing Tenant in connection therewith, (ii) the Existing Tenants are paying
base rent, percentage rent and/or additional rent without offsets,
counterclaims, defenses, deductions or credits whatsoever, (iii) the leases with
the Existing Tenants are is in full force and effect and (iv) the aggregate
annual base rent paid by the Existing Tenants equals or exceeds $9,800,000.00
(the "Required Base Rent"), provided, however, in the event Borrower fails to
deliver Lease Affirmations from the required Existing Tenants and Borrower has
leased additional space at the Project to tenants satisfactory to Lender
("Additional Tenants") at market rents and for a term to expire no earlier than
five (5) years from the date of commencement thereof pursuant to terms and
conditions satisfactory to Lender, the Leasing Requirements can be satisfied by
delivery to Lender of Lease Affirmations containing the Required Information
from a sufficient number of Existing Tenants and Additional Tenants to indicate
compliance with the Required Base Rent. Nothing contained herein shall modify or
amend any right of Borrower with respect to Leases at the Project as provided in
Section 9.17 of the Loan Agreement.
It is expressly understood and agreed that this is a continuing guaranty
and that the obligations of Guarantor hereunder are and shall be absolute under
any and all circumstances, without regard to the validity, regularity or
enforceability of the Note, the Security Instrument, or the Other Security
Documents, a true copy of each of said documents Guarantor hereby acknowledges
having received and reviewed.
Any indebtedness of Borrower to Guarantor now or hereafter existing
(including, but not limited to, any rights to subrogation Guarantor may have as
a result of any payment by Guarantor under this Guaranty), together with any
interest thereon, shall be, and such indebtedness is, hereby deferred, postponed
and subordinated to the prior payment in full of the Guaranteed Obligations.
Until payment in full of the Guaranteed Obligations (and including interest
accruing thereon after the commencement of a proceeding by or against Borrower
under the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. Sections 101 et
seq., and the regulations adopted and promulgated pursuant thereto
(collectively, the "Bankruptcy Code") which interest the parties agree shall
remain a claim that is prior and superior to any claim of Guarantor
notwithstanding any contrary practice, custom or ruling in cases under the
Bankruptcy Code generally), Guarantor agrees not to accept any payment or
satisfaction of any kind of indebtedness of Borrower to Guarantor (provided,
however, provided no Event of Default has occurred and is continuing, the
foregoing shall not prohibit Borrower from making partnership distributions in
the ordinary course of business) and hereby assigns such indebtedness to Lender,
including the right to file proof of claim and to vote thereon in connection
with any such proceeding under the Bankruptcy Code, including the right to vote
on any plan of reorganization.
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Guarantor agrees that, with or without notice or demand, Guarantor will
reimburse Lender, to the extent that such reimbursement is not made by Borrower,
for all expenses (including reasonable counsel fees) incurred by Lender in
connection with the collection of the Guaranteed Obligations or any portion
thereof or with the enforcement of this Guaranty.
All moneys available to Lender for application in payment or reduction of
the Guaranteed Obligations shall be applied by Lender in such manner and in such
amounts and at such time or times and in such order and priority as Lender may
see fit to the payment or reduction of such portion of the Guaranteed
Obligations as Lender may elect.
Guarantor hereby waives notice of the acceptance hereof, presentment,
demand for payment, protest, notice of protest, or any and all notice of
non-payment, non-performance or non-observance, or other proof, or notice or
demand.
Guarantor further agrees that the validity of this Guaranty and the
obligations of Guarantor hereunder shall in no way be terminated, affected or
impaired (i) by reason of the assertion by Lender of any rights or remedies
which it may have under or with respect to either the Note, the Security
Instrument, or the Other Security Documents, against any person obligated
thereunder or against the owner of the premises covered by the Security
Instrument, or (ii) by reason of any failure to file or record any of such
instruments or to take or perfect any security intended to be provided thereby,
or (iii) by reason of the release or exchange of any property covered by the
Security Instrument or other collateral for the Loan, or (iv) by reason of
Lender's failure to exercise, or delay in exercising, any such right or remedy
or any right or remedy Lender may have hereunder or in respect to this Guaranty,
or (v) by reason of the commencement of a case under the Bankruptcy Code by or
against any person obligated under the Note, the Security Instrument or the
Other Security Documents, or the death of any Guarantor, or (vi) by reason of
any payment made on the Debt or any other indebtedness arising under the Note,
the Security Instrument or the Other Security Documents, whether made by
Borrower or Guarantor or any other person, which is required to be refunded
pursuant to any bankruptcy or insolvency law; it being understood that no
payment so refunded shall be considered as a payment of any portion of the
Guaranteed Obligations, nor shall it have the effect of reducing the liability
of Guarantor hereunder. It is further understood, that if Borrower shall have
taken advantage of, or be subject to the protection of, any provision in the
Bankruptcy Code, the effect of which is to prevent or delay Lender from
declaring the Debt (as defined in the Loan Agreement) due and payable on the
happening of any default or event by which under the terms of the Note, the
Security Instrument or the Other Security Documents, the Debt shall become due
and payable, Lender may, as against Guarantor, nevertheless, declare the
Guaranteed Obligations due and payable and enforce any or all of its rights and
remedies against Guarantor provided for herein.
Guarantor further covenants that this Guaranty shall remain and continue in
full force and effect as to any modification, extension or renewal of the Note,
the Security Instrument, or any of the Other Security Documents, that Lender
shall not be under a duty to protect, secure or insure any security or lien
provided by the Security Instrument or other such collateral, and that other
indulgences or forbearance may be granted under any or all of such documents,
all of which may be made, done or suffered without notice to, or further consent
of, Guarantor.
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As a further inducement to Lender to make the Loan and in consideration
thereof, Guarantor further covenants and agrees (i) that in any action or
proceeding brought by Lender against Guarantor on this Guaranty, Guarantor shall
and does hereby waive trial by jury, (ii) that the Supreme Court of the State of
New York for the County of New York, or, in a case involving diversity of
citizenship, the United States District Court for the Southern District of New
York, shall have jurisdiction of any such action or proceeding, and (iii) that
within thirty days after service of any summons and complaint or other process
in any such action or proceeding, Guarantor so served shall appear or answer to
any summons and complaint or other process and should Guarantor so served fail
to appear or answer within said thirty-day period, said Guarantor shall be
deemed in default and judgment may be entered by Lender against the said party
for the amount as demanded in any summons and complaint or other process so
served.
This is a guaranty of payment and not of collection and upon any default of
Borrower under the Note, the Security Instrument or the Other Security
Documents, Lender may, at its option, proceed directly and at once, without
notice, against Guarantor to collect and recover the full amount of the
liability hereunder or any portion thereof, without proceeding against Borrower
or any other person, or foreclosing upon, selling, or otherwise disposing of or
collecting or applying against any of the mortgaged property or other collateral
for the Loan. Guarantor hereby waives the pleading of any statute of limitations
as a defense to the obligation hereunder.
Each reference herein to Lender shall be deemed to include its successors
and assigns, to whose favor the provisions of this Guaranty shall also inure.
Each reference herein to Guarantor shall be deemed to include the heirs,
executors, administrators, legal representatives, successors and assigns of
Guarantor, all of whom shall be bound by the provisions of this Guaranty.
Guarantor (and its representative, executing below, if any) has full power,
authority and legal right to execute this Guaranty and to perform all its
obligations under this Guaranty.
All understandings, representations and agreements heretofore had with
respect to this Guaranty are merged into this Guaranty which alone fully and
completely expresses the agreement of Guarantor and Lender.
This Guaranty may be executed in one or more counterparts by some or all of
the parties hereto, each of which counterparts shall be an original and all of
which together shall constitute a single agreement of Guaranty. The failure of
any party hereto to execute this Guaranty, or any counterpart hereof, shall not
relieve the other signatories from their obligations hereunder.
This Guaranty may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Lender or Borrower, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
This Guaranty shall be governed, construed and interpreted as to validity,
enforcement and in all other respects, in accordance with the laws of the State
of New York.
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IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the
date first above set forth.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Sr. VP
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SCHEDULE A
That certain Guaranty of Payment dated as of January 28, 2000 given New
Plan Excel Realty Trust, Inc. to Xxxxxx Xxx, Inc.
