EXHIBIT XIV
FORM OF GUARANTY
This GUARANTY dated as of December 5, 1997 is by __________________________
(the "Guarantor") in favor of Och-Ziff Capital Management, L.P., a Delaware
limited partnership (the "Purchaser").
RECITALS:
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A. Prime Group VI, L.P., an Illinois limited partnership (the "Company"),
has entered into a Note Purchase Agreement, dated as of the date hereof (as at
any time amended, restated, modified or supplemented, the "Note Purchase
Agreement"), with the Purchaser, pursuant to which the Purchaser has agreed to
purchase the Note (as defined in the Note Purchase Agreement) from the Company.
B. The Guarantor is a limited partner of the Company.
C. The Guarantor will derive substantial economic benefits from the
Company's sale of the Note and application of proceeds thereunder.
D. In connection with the purchase of the Note under the Note Purchase
Agreement, and as a condition precedent thereto, the Purchaser is requiring that
the Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce the Purchaser to purchase the Note under
the Note Purchase Agreement, it is agreed as follows:
Section 1. DEFINITIONS. Capitalized terms used herein shall have the
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meanings assigned to them in the Note Purchase Agreement, unless the context
otherwise requires or unless otherwise defined herein. References to this
"Guaranty" shall mean this Guaranty, including all amendments, modifications and
supplements, and shall refer to this Guaranty as the same may be in effect at
the time such reference becomes operative.
Section 2. GUARANTY.
2.1 Guaranty. The Guarantor hereby guarantees to the Purchaser, and its
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successors and assigns, the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the principal of and interest on the
Note purchased by the Purchaser to, and the Note held by the Purchaser of, the
Company and all other amounts from time to time owing to the Purchaser by the
Company under the Note Purchase Agreement, the Note and any of the other
Transaction Documents (such obligations being herein collectively referred to
as, the "Guaranteed Obligations"). The Guarantor hereby further agrees that, if
the Company shall
fail to pay in full when due (whether at stated maturity, on a Mandatory
Redemption Event, by acceleration or otherwise) any of the Guaranteed
Obligations, the Guarantor will promptly pay the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Guaranteed Obligations, the same will be promptly paid in
full when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
2.2 Obligations Unconditional. The obligations of the Guarantor under
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Section 2.1 hereof are absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of the Note Purchase
Agreement, the Note or any other Transaction Documents or any substitution,
release or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 2.2 that the obligations of the Guarantor
hereunder shall be absolute and unconditional, under any and all circumstances.
Without limiting the generality of the foregoing, it is agreed that the
occurrence of any one or more of the following shall not affect the liability of
the Guarantor under this Guaranty:
(i) at any time or from time to time, without notice to the Guarantor,
the time for any performance of or compliance with any of the Guaranteed
Obligations shall be extended, or such performance or compliance shall be
waived;
(ii) the performance (other than full performance or payment of the
Guaranteed Obligations) or non-performance of any of the acts mentioned in
any of the provisions of the Note Purchase Agreement or the Note or any
other agreement or instrument referred to herein or therein;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under the Note
Purchase Agreement or the Note or any other agreement or instrument
referred to herein or therein shall be waived or any other guarantee of any
of the Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Purchaser as security for any of the Guaranteed Obligations shall fail to
be perfected.
The Guarantor hereby expressly waives, to the extent permitted by applicable
law, diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Purchaser exhaust any right, power or
remedy or proceed against the Company under the
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Note Purchase Agreement or the Note or any other agreement or instrument
referred to herein or therein, or against any other Person under this Guaranty
or any other guarantee of, or security for, any of the Guaranteed Obligations.
Guarantor represents, warrants and agrees that, as of the date of this Guaranty,
its obligations under this Guaranty are not subject to any offsets or defenses,
of any kind, against the Purchaser. Guarantor further agrees that its
obligations under this Guaranty shall not be subject to any counterclaims,
offsets or defenses.
2.3 Reinstatement. The obligations of the Guarantor under this Guaranty
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shall be automatically reinstated if and to the extent that, for any reason, any
payment by or on behalf of the Company in respect of the Guaranteed Obligations
is rescinded or must be otherwise restored by any holder of any of the
Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Guarantor agrees that it will indemnify the
Purchaser on demand for all reasonable out-of-pocket costs and expenses
(including without limitation, reasonable fees of counsel) actually incurred by
the Purchaser in connection with such rescission or restoration.
2.4 Subrogation. The Guarantor hereby agrees that it shall not exercise
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any right or remedy arising by reason of any performance by it of its guarantee
hereunder, whether by subrogation, reimbursement, indemnification or otherwise,
against the Company or any other guarantor of any of the Guaranteed Obligations
or any security for any of the Guaranteed Obligations.
2.5 Remedies. The Guarantor agrees that, as between the Guarantor and the
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Purchaser, the obligations of the Company under the Note Purchase Agreement and
the Note may be declared to be forthwith due and payable as provided in the Note
as against the Company and that, in the event of such declaration such
obligations (whether or not due and payable by the Company) shall forthwith
become due and payable by the Guarantor for purposes of Section 2.1. If the
Purchaser shall bring an action to enforce this Guaranty, the prevailing party
in such action shall be entitled to recover reasonable out-of-pocket costs and
attorney fees incurred in such action, including but not limited to costs and
fees incurred in connection with any provisional remedies, appeal, confirmation
or execution after judgment.
2.6 Continuing Guarantee. The guarantee provided in this Guaranty is a
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continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
2.7 Existence. Guarantor (i) is a corporation duly organized, validly
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existing and in good standing under the laws of the state of its organization;
(ii) is duly qualified to do business and is in good standing under the laws of
each jurisdiction where its ownership or lease of property or the conduct of its
business requires such qualification (except for jurisdictions in which such
failure so to qualify or to be in good standing would not have a materially
adverse effect on (A) the business, operations, prospects or financial condition
of the Guarantor, or (B) Guarantor's ability to pay the Guaranteed Obligations
in accordance with the terms hereof); and (iii) has the requisite power and
authority and the legal right to own, pledge, mortgage and
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operate its properties, to lease the property it operates under lease, and to
conduct its business as now, heretofore and proposed to be conducted.
2.8 Executive Offices. Guarantor's executive office and principal place of
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business are the same as set forth in Section 3.4 hereof (with respect to
notices).
2.9 Power; Authorization; Enforceable Obligations. The execution, delivery
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and performance of this Guaranty by the Guarantor are within Guarantor's powers,
have been duly authorized by all necessary or proper action, are not in
contravention of any provision of Guarantor's articles of incorporation or by
laws, will not violate any law or regulation, or any order or decree of any
court or governmental instrumentality to which the Guarantor is subject or by
which the Guarantor is bound, will not conflict with or result in the breach of,
or constitute a default under, any material indenture, mortgage, deed of trust,
lease, agreement or other material instrument to which the Guarantor is a party
or by which the Guarantor or any of its property is bound, will not result in
the creation or imposition of any Lien upon any of the property of the
Guarantor. This Guaranty has been duly executed and delivered on behalf of the
Guarantor, and constitutes a legal, valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equity principles.
2.10 Litigation. There is no legal or arbitral proceeding by or before
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any governmental authority now pending or (to the knowledge of the Guarantor)
threatened, against the Guarantor with respect to which an order adverse to the
Guarantor is reasonably likely and which, if adversely determined, could
reasonably be expected to have a material adverse effect on the financial
condition, operations, business or prospects of the Guarantor.
2.11 Approvals. No authorizations, approvals or consents of, and no filings
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or registrations with, any governmental authority are necessary for the
execution, delivery or performance by the Guarantor of the Transaction Documents
to which the Guarantor is a party or for the validity or enforceability thereof,
except for Uniform Commercial Code filings in respect of the Liens created
pursuant to the Guarantor's Security Documents.
2.12 Taxes. The Guarantor has filed all United States Federal income tax
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returns and all other material tax returns which are required to be filed by it
and has paid all taxes due pursuant to such returns.
2.13 Solvency. After giving effect to the assumption of the contingent
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indebtedness under this Guaranty, the disbursement of the proceeds of the Note
and the other transactions contemplated by the Transaction Documents, the
Guarantor is solvent on the date hereof.
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2.14 Information. The Guarantor shall deliver to the Purchaser from time to
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time such information regarding the business, affairs or financial condition of
the Guarantor as the Purchaser may reasonably request.
2.15 Notice of Litigation. The Guarantor will promptly give to the
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Purchaser notice of any legal or arbitral proceedings by or before any
governmental authority, and any material development in respect of such legal or
other proceedings, affecting the Guarantor, except proceedings which are not
reasonably likely to be determined adversely to the Guarantor or which if
determined adversely to the Guarantor, could not reasonably be expected to have
a material adverse effect on the financial condition, operations, business or
prospects of the Guarantor.
2.16 Maintenance of Existence. The Guarantor will preserve and maintain its
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existence.
2.17 Modifications of Brookdale Documents. The Guarantor will not send any
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notice under, or request or consent to, any modification, supplement or waiver
of any of the provisions of the Registration Rights Agreement or other agreement
to which BLCI and the Guarantor are parties in a manner which adversely affects
the interests of the Company or the Purchaser without the prior written consent
of the Purchaser.
2.18 Benefit of Guaranty. The provisions of this Guaranty are for the
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benefit of the Purchaser and its successors and assigns, and nothing herein
contained shall impair, as between the Company and the Purchaser, the
obligations of Company under the Transaction Documents.
2.19 Further Assurances. The Guarantor agrees, upon the written request of
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the Purchaser, to execute and deliver to the Purchaser, from time to time, any
additional instruments or documents reasonably considered necessary by the
Purchaser to cause this Guaranty to remain valid and effective in accordance
with its terms.
2.20 Payments Free and Clear of Taxes. Any payments required to be made by
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the Guarantor hereunder shall be made to the Purchaser, free and clear of and
without deduction for, any and all present and future taxes, withholdings,
levies, duties, and other governmental charges, excluding such income and
franchise taxes of the United States and any political subdivision thereof which
would otherwise have been payable by the Company if the Company had paid the
Guaranteed Obligations to Purchaser in accordance with the terms of the
Transaction Documents.
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Section 3. MISCELLANEOUS.
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3.1 Entire Agreement; Amendments. This Guaranty, together with the other
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Transaction Documents, constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements
relating to a guaranty of the amounts due under the Note and the other
Transaction Documents and/or the Guaranteed Obligations and may not be amended
or supplemented except by a writing signed by the Guarantor and the Purchaser.
3.2 Headings. The headings in this Guaranty are for convenience of
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reference only and are not part of the substance of this Guaranty.
3.3 Severability. In the event that any one or more of the provisions
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contained in this Guaranty shall be determined to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision or provisions in every other respect and
the remaining provisions of this Guaranty shall not be in any way impaired.
3.4 Notices. A11 notices, communications and instructions required or
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desired to be given under this Guaranty shall be in writing and shall be deemed
to given when delivered personally or by verifiable facsimile transmission (with
a hard copy to follow by nationally recognized air courier) or on the next
business day after timely delivery to a nationally recognized overnight courier,
guarantying next day delivery, delivery charges prepaid, or sent by registered
or certified mail, return receipt requested, postage prepaid, to the following
addresses:
If to the Purchaser, at:
Och-Ziff Capital Management, L.P.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx, Chief Financial Officer
Tel: 000-000-0000
Fax: 000-000-0000
If to the Guarantor, at:
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Tel:
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Fax:
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with a copy to:
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Tel:
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Fax:
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With a copy to:
Winston & Xxxxxx
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
3.5 Successors and Assigns. This Agreement shall be binding upon and inure
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to the benefit of the parties hereto and their respective successors and
permitted assigns. Neither the Guarantor nor the Purchaser may assign its rights
or obligations hereunder without the prior written consent of the other party;
provided, however, that the Purchaser may at any time assign all but not less
than all of its rights and obligations hereunder to a permitted assignee under
the Note, without the consent of the Guarantor.
3.6 Non-Waiver. The failure of the Purchaser to enforce any right or remedy
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hereunder, or promptly to enforce any such right or remedy, shall not constitute
a waiver thereof, nor give rise to any estoppel against the Purchaser, nor
excuse the Guarantor from its obligations hereunder. Any waiver of any such
right or remedy by the Purchaser must be in writing and signed by the Purchaser.
3.7 Termination. This Guaranty shall terminate and be of no further force
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or effect at such time as the Guaranteed Obligations shall be paid in full. Upon
payment in full of the Guaranteed Obligations, the Purchaser shall deliver to
the Guarantor such documents as the Guarantor may reasonably request to evidence
termination of this Guaranty.
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3.8 Counterparts. This Guaranty may be executed in counterparts which shall
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individually and collectively constitute one agreement.
3.9 Non-Recourse. Anything contained herein, in the Note or in any other
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Basic Document to the contrary notwithstanding, no recourse shall be had for the
Guaranteed Obligations against any shareholder, agent, director, officer or
employee of the Guarantor. It is understood that the preceding sentence shall
not (A) apply to the obligations of the Guarantor set forth in this Guaranty and
(B) in the event of any malfeasance, such as fraud, misappropriation of funds or
intentional material misrepresentation estop the Purchaser from instituting or
prosecuting a legal action or proceeding or otherwise making a claim against the
Person or Persons committing such malfeasance.
3.10 Governing Law; Consent to Jurisdiction. (a) This Guaranty shall be
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governed by and construed in accordance with the substantive laws of the State
of New York, without giving effect to the choice of law provisions thereof, or
remedies hereunder.
(b) the Guarantor hereby irrevocably agrees that, subject to the
Purchaser's sole and absolute election, all actions or proceedings which in any
manner arise out of or in connection with or are in any way related to this
Guaranty or other related agreements shall be litigated in courts having situs
within the County of New York, State of New York, and the Guarantor hereby
consents to the jurisdiction of any state or federal court located with the
County of New York, State of New York. The Guarantor hereby waives any right it
may have to transfer or change the venue of any litigation between the Guarantor
and the Purchaser under this Guaranty.
3.11 Waiver of Jury Trial. THE GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
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INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY in any action or proceeding
which in any manner arises out of or in connection with or is in any way related
to this Guaranty or any of the transactions contemplated herein.
IN WITNESS WHEREOF, the Guarantor has executed and delivered this Guaranty
as of the date first written above.
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By:
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Name:
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Title:
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Accepted and acknowledged by:
OCH-ZIFF CAPITAL MANAGEMENT, L.P.
By: OCH-ZIFF ASSOCIATES, L.L.C.,
its General Partner
By:
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Name:
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Title:
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