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EXHIBIT 10(f)
SECOND REAFFIRMATION AND RATIFICATION
OF GUARANTY
THIS SECOND REAFFIRMATION AND RATIFICATION OF GUARANTY
("Second Reaffirmation") made as of the _____ day of October, 1998, by MALIBU
CENTERS, INC., a Delaware corporation, (the "GUARANTOR") in favor of Lender
(hereinafter defined).
W I T N E S S E T H :
WHEREAS, MEI Holdings, L.P., a Delaware limited partnership
("BORROWER"), has entered into a Loan Agreement, dated as of June 5, 1997, with
Nomura Asset Capital Corporation, a Delaware corporation ("LENDER"), as amended
by that certain Letter Agreement dated as of June 27, 1997, as amended by that
certain Letter Agreement dated as of March 30, 1998 (the "ORIGINAL LOAN
AGREEMENT"), as amended and restated by that certain Amended and Restated Loan
Agreement dated as of May 8, 1998 pursuant to which Lender made an additional
$10,000,000 loan to Borrower as further amended by that certain letter
agreement dated the date hereof (the "RESTATED MEI LOAN AGREEMENT") pursuant to
which Lender made an additional $1,034,759 loan to Borrower for an aggregate
loan amount of $21,034,759 (the "LOAN");
WHEREAS, in connection with the Original Loan Agreement
Guarantor executed and delivered a certain Guaranty in favor of Lender, dated
as of June 27, 1997 (the "ORIGINAL GUARANTY") as reaffirmed by that certain
Reaffirmation and Ratification of Guaranty dated as of May 8, 1998 (the
"REAFFIRMATION", the Reaffirmation and the Original Guaranty are hereinafter
collectively referred to as the "GUARANTY");
WHEREAS, Borrower and Guarantor have each chosen to exercise
the option to extend the term of each one's respective loan and to amend the
terms and provisions of the Guaranty.
NOW THEREFORE, in consideration of Ten Dollars ($10.00), the
receipt of which is hereby acknowledged, the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by each of the parties hereto, and in order to reaffirm and ratify
the Guaranty, the Guarantor hereby acknowledges, agrees for itself, its
successors and assigns and confirms that all
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of the above recitals are true, correct and complete, and the Guarantor hereby
covenants and agrees with Lender as follows:
1. References to the Centers Guaranty, the MCI Guaranty or any
guaranty executed by MCI or Malibu Centers, Inc, in any or all of the Loan
Documents (or the MCI Loan Documents) shall be deemed to include references to
such Guaranty as reaffirmed and ratified by this Second Reaffirmation.
2. Guarantor acknowledges the continuing validity of its Guaranty
in favor of Lender and represents, warrants and confirms the non-existence of
any offsets, defenses or counterclaims to its obligations thereunder and waives
its right to assert any set-off, counterclaim or crossclaim of any nature
whatsoever in any litigation relating to its Guaranty or otherwise with respect
to the Obligations (provided, however that the foregoing shall not be deemed a
waiver of the right of the Guarantor to assert any compulsory counterclaim
maintained in a court of the United States, or of the State of New York if such
counterclaim is compelled under local law or rule of procedure).
3. Guarantor reacknowledges and reaffirms all of the
representations, warranties, terms and obligations contained in the Guaranty,
which shall remain in full force and effect for all the obligations of the
Guarantor now or hereafter owing to Lender pursuant to the terms and conditions
of the Guaranty and acknowledges, agrees, represents and warrants that no oral
or other agreements, understandings, representations or warranties exist with
respect to the Guaranty or with respect to the obligations of Guarantor
thereunder except those specifically set forth in this Second Reaffirmation.
4. Guarantor hereby acknowledges and affirms that the Loan has
been increased to $21,034,759.
5. Guarantor represents, warrants and confirms that no Material
Adverse Change has occurred since May 8, 1998, that there are no judgments
against it in any of the courts of the United States and that there is no
litigation, active, pending or to the best of its actual knowledge, threatened,
against it which might adversely affect its ability to pay when due any amounts
which may become payable in respect of its Guaranty or the MCI Loan Agreement
(hereinafter defined).
6. Guarantor restates all of the representations and warranties
contained in that certain Loan Agreement, dated June 27, 1997, between
Guarantor and Lender, as
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amended by that certain Letter Agreement dated as of March 30, 1998 as further
amended by that certain letter agreement dated the date hereof (the "MCI LOAN
AGREEMENT") and represents and warranties to Lender that all of the
representations and warranties contained in the MCI Loan Agreement are true and
correct in all material respects and that no Default (as defined in the MCI
Loan Agreement) or Event of Default (as defined in the MCI Loan Agreement) has
occurred or is continuing and that Guarantor is in compliance in all material
respects with all terms and conditions set forth in the MCI Loan Agreement and
in each other Loan Document (as defined in the MCI Loan Agreement, such
documents the "MCI LOAN DOCUMENTS") on its part to be observed or performed.
The MCI Loan Documents are not subject to any right of rescission, set-off,
counterclaim or defense by Guarantor, including the defense of usury, nor would
the operation of any of the terms of the MCI Loan Documents, or the exercise of
any right thereunder, render the MCI Loan Documents unenforceable except to the
extent such unenforceability may be the result of bankruptcy, insolvency,
reorganization or similar laws affecting rights of creditors generally or
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and Guarantor has not asserted any right of
rescission, set-off, counterclaim or defense with respect thereto.
7. This Second Reaffirmation may be executed in any number of
duplicate originals and each such duplicate original shall be deemed to
constitute but one and the same instrument.
8. If Guarantor fails to execute this Second Reaffirmation, or if
such execution shall prove ineffective for any reason, there shall be no
implication arising out of such failure to sign that Guarantor, is released
from any of its obligations under the Guaranty.
9. Guarantor acknowledges and agrees that it has entered into and
delivered this Second Reaffirmation of its own free will, voluntarily and
without coercion or duress of any kind, and has been represented in connection
herewith by counsel of its choice and is fully aware of the terms contained in
this Second Reaffirmation.
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IN WITNESS WHEREOF, Guarantor has duly executed this Second
Reaffirmation the day and year first above written.
MALIBU CENTERS, INC., a Delaware
corporation
By:
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Name:
Title:
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