LIMITED GUARANTY
Exhibit 10.11
LIMITED GUARANTY, dated as of October 9, 2007 (as amended, supplemented, restated or otherwise
modified from time to time, this “Guaranty”), made by XXXXX TIMBERLAND REIT, INC., a
Delaware corporation (the “Guarantor”), in favor of COBANK, ACB, as administrative agent
(in such capacity, the “Administrative Agent”) for each of the Lender Parties.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of the date hereof (as amended,
supplemented, restated or otherwise modified from time to time, the “Credit Agreement”),
among Timberlands II, LLC, a Delaware limited liability company, Xxxxx Timberland Acquisition, LLC,
a Delaware limited liability company (each a “Borrower” and collectively, the
“Borrowers”), the various lending institutions as are, or may from time to time become,
parties thereto (collectively, the “Lenders”), and the Administrative Agent, the Lenders
have extended Commitments (capitalized terms not otherwise defined herein, and all other
capitalized terms not otherwise defined herein, to have the meanings provided for in Article
I) to make Loans to the Borrowers; and
WHEREAS, as a condition precedent to the Funding Date, the Guarantor is required to execute
and deliver this Guaranty; and
WHEREAS, the Guarantor has duly authorized the execution, delivery and performance of this
Guaranty and will receive direct and indirect benefits by reason of the availability of such
Commitments and the making of the Loans to the Borrowers by the Lenders;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in order to induce the Lenders to make the Loans to the Borrowers pursuant
to the Credit Agreement, the Guarantor hereby agrees with the Administrative Agent, for its benefit
and the benefit of each other Lender Party, as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms (whether or not underscored) when used
in this Guaranty, including its preamble and recitals, shall have the following meanings (such
definitions to be equally applicable to the singular and plural forms thereof):
“Administrative Agent” is defined in the preamble.
“Bankruptcy Code” is defined as Title 11 of the United States Code.
“Borrower” and “Borrowers” are defined in the first recital.
“Credit Agreement” is defined in the first recital.
“Guaranteed Obligations” is defined in Section 2.1.
“Guarantor” is defined in the preamble.
“Guaranty” is defined in the preamble.
“Insolvency or Liquidation Proceeding” has the meaning provided for in the
Intercreditor Agreement.
“Lenders” is defined in the first recital.
“Protective Advances” has the meaning provided for in the Intercreditor Agreement.
SECTION 1.2 Credit Agreement Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Guaranty, including its preamble and recitals, have
the meanings provided in the Credit Agreement.
ARTICLE II
GUARANTY
GUARANTY
SECTION 2.1 Guaranty. The Guarantor hereby unconditionally and irrevocably guarantees
the full and prompt payment to the Administrative Agent (for the benefit of the Lender Parties) of
all losses, costs, expenses, and damages incurred or suffered by any of the Lender Parties as a
result of, or arising in connection with, any of the following (collectively, the “Guaranteed
Obligations”):
(a) any fraud or intentional misrepresentation or omission by any Loan Party or any Loan
Party’s Affiliates, partners, members, officers, directors, shareholders or principals in
connection with (i) the performance of any of the conditions to the Lenders making the Loans; (ii)
any inducements to the Lenders to make the Loans; (iii) the execution and delivery of the Loan
Documents; (iv) any certificates, representations or warranties given in connection with the Loans;
or (v) any Loan Party’s performance of the Obligations;
(b) any breach of any Loan Party’s obligations under Sections 6.25 or 7.2.19 of the Credit
Agreement;
(c) any Lien on the Collateral not permitted by Section 7.2.3 of the Credit Agreement or by
any Loan Party incurring Indebtedness not permitted by Section 7.2.2 of the Credit Agreement;
(d) the sale, transfer, lease, contribution, conveyance or other disposition by any Loan Party
of any Collateral other than as permitted by Section 7.2.9 of the Credit Agreement;
(e) the replacement cost of any property removed by any Loan Party from the Real Property
without the consent of the Administrative Agent after an Event of Default has occurred and is
continuing;
(f) any intentional acts or omissions by any Loan Party that result in waste (including
economic and non-physical waste) of all or any part of the Collateral;
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(g) all Protective Advances made by the Administrative Agent or any Lender pursuant to the
provisions of the Loan Documents;
(h) the occurrence of any Insolvency or Liquidation Proceeding in which one or more Loan
Parties has acted in concert with, colluded or conspired with any other Person, to cause the
occurrence of any such Insolvency or Liquidation Proceeding;
(i) any amendment, supplement, waiver or other modification, termination or assignment of any
MW Supply Agreement not permitted by clause (l) of Section 7.1.11 of the Credit Agreement;
(j) the failure (i) of any Loan Party to deposit or cause to be deposited any payments in the
Revenue Account as required by Section 9.2 of the Credit Agreement and any payments in the Equity
Raise Account as required by Section 9.2 of the Subordinated Credit Agreement, (ii) of any amounts
on deposit in the Revenue Account to be applied in accordance with the Revenue Waterfall (except as
approved by the Administrative Agent or the Required Lenders) or (iii) of any amounts on deposit in
the Equity Raise Account to be applied in accordance with the Equity Raise Waterfall (except as
approved by the Subordinated Administrative Agent or the requisite Subordinated Lenders
thereunder);
(k) the forfeiture or threatened forfeiture of the Collateral to any Governmental Authority
pursuant to the Racketeer Influenced and Corrupt Organizations Act or similar Law;
(l) any breach of Section 6.23 of the Credit Agreement;
(m) any payments in violation of Section 7.2.6 of the Credit Agreement;
(n) any action by any Loan Party or any of their Affiliates, partners, members, officers,
directors, shareholders or principals takes action to frustrate, hinder or delay the Administrative
Agent’s or any Lender’s exercise of its remedies, it being understood that the foregoing shall not
include any reasonable action taken by a Loan Party in good faith to either contest the existence
of any Default or an Event of Default or dispute the meaning or construction of a contractual term
of any Loan Document; and
(o) the willful misconduct of any Loan Party.
This Guaranty constitutes a guaranty of payment when due and not merely of collection, and the
Guarantor specifically agrees that it shall not be necessary or required that any Lender Party
exercise any right, assert any claim or demand or enforce any remedy whatsoever against the
Borrowers, any other Loan Party or any Collateral before or as a condition to the obligations of
the Guarantor hereunder. Notwithstanding the foregoing, the obligations of the Guarantor hereunder
shall be limited to a maximum aggregate amount equal to the greatest amount that would not render
the Guarantor’s obligations hereunder subject to avoidance as a fraudulent transfer or conveyance
under Section 548 of the Bankruptcy Code or any provisions of applicable state Law.
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SECTION 2.2 Acceleration of Guaranty. The Guarantor agrees that, if any Event of
Default under Section 8.1.8 of the Credit Agreement shall occur or the Loans are declared due and
payable, the Guarantor will, automatically and without the requirement that any demand for payment
be made, pay to the Lender Parties forthwith the full amount of the Guaranteed Obligations that are
then due and payable.
SECTION 2.3 Guaranty Absolute. This Guaranty is a continuing, absolute, unconditional
and irrevocable guaranty of payment and shall remain in full force and effect until all the
Guaranteed Obligations have been indefeasibly paid in full in cash and all Commitments shall have
irrevocably terminated. The Guarantor guarantees that the Guaranteed Obligations will be paid
strictly in accordance with the terms of the agreement under which they arise, regardless of any
law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of any Lender Party with respect thereto. The liability of the Guarantor under this
Guaranty shall be absolute and unconditional irrespective of:
(a) any lack of validity, legality or enforceability of any Loan Document or any other
agreement or instrument relating to any thereof;
(b) the failure of any Lender Party:
(i) to assert any claim or demand or to enforce any right or remedy against the Borrowers, any
other Loan Party or any other Person (including any other guarantor) under the provisions of any
Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other guarantor of, or collateral securing,
any of the Guaranteed Obligations;
(c) any change in the time, manner or place of payment of, or in any other term of, all or any
of the Guaranteed Obligations, or any compromise, renewal, extension, acceleration or release with
respect thereto, or any other amendment or waiver of or any consent to departure from any Loan
Document;
(d) any addition, exchange, release, impairment or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any other guaranty, for all or any
of the Guaranteed Obligations;
(e) any defense, set-off or counterclaim which may at any time be available to or be asserted
by the Borrowers or any other Loan Party against any Lender Party;
(f) any reduction, limitation, impairment or termination of the Guaranteed Obligations for any
reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to (and the Guarantor hereby waives any right to or claim of) any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or any other event or occurrence
affecting, the Guaranteed Obligations or otherwise; or
(g) any other circumstances which might otherwise constitute a defense available to, or a
legal or equitable discharge of, the Borrowers, any other Loan Party or the
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Guarantor, including as a result of any proceeding of the nature referred to in Section 8.1.8
of the Credit Agreement.
SECTION 2.4 Reinstatement, etc. The Guarantor agrees that this Guaranty shall
continue to be effective or be reinstated, as the case may be, if at any time any payment (in whole
or in part) of any of the Guaranteed Obligations is rescinded or must otherwise be restored by any
Lender Party, upon the insolvency, bankruptcy or reorganization of the Borrowers, any other Loan
Party or otherwise, all as though such payment had not been made.
SECTION 2.5 Waiver. The Guarantor hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed Obligations and this
Guaranty, and any requirement that any Lender Party protect, secure, perfect or insure any Lien on
any property or exhaust any right or take any action against the Borrowers, any other Loan Party or
any other Person (including any other guarantor of the Guaranteed Obligations) or any collateral
securing the Guaranteed Obligations.
SECTION 2.6 Waiver of Subrogation. The Guarantor hereby irrevocably waives to the
extent permitted by applicable Law and until such time as the Guaranteed Obligations shall have
been paid in full in cash and the Commitments have irrevocably terminated, any claim or other
rights which it may now or hereafter acquire against the Borrowers or any other Loan Party that
arise from the existence, payment, performance or enforcement of the Guarantor’s obligations under
this Guaranty or any other Loan Document, including any right of subrogation, reimbursement,
exoneration or indemnification, and any right to participate in any claim or remedy of any Lender
Party against the Borrowers or any other Loan Party or any collateral which any Lender Party now
has or hereafter acquires, whether or not such claim, remedy or right arises in equity, or under
contract or Law. If any amount shall be paid to the Guarantor in violation of the preceding
sentence, such amount shall be deemed to have been paid to the Guarantor for the benefit of, and
held in trust for, the Lender Parties, and shall forthwith be paid to the Administrative Agent on
behalf of the Lender Parties to be credited and applied against the Guaranteed Obligations, whether
matured or unmatured. The Guarantor acknowledges that it will receive direct and indirect benefits
from the financing arrangements contemplated by the Credit Agreement and that the waiver set forth
in this Section is knowingly made in contemplation of such benefits.
SECTION 2.7 Payments Free of Taxes. All payments made by the Guarantor hereunder
shall be free and clear of all Taxes.
ARTICLE III
REPRESENTATIONS AND COVENANTS
REPRESENTATIONS AND COVENANTS
SECTION 3.1 Representations and Warranties. The Guarantor hereby represents and
warrants, as of the date it becomes a party to this Guaranty, to the Administrative Agent as set
forth below:
(a) the Guarantor is duly organized, validly existing and in good standing under the Laws of
its jurisdiction of organization, and has full power and authority, and holds all requisite
licenses, permits and other approvals of Governmental Authorities, to enter into this
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Guaranty and the other Loan Documents to which it is a party and to carry out the transactions
contemplated hereby and thereby;
(b) the execution and delivery by the Guarantor of this Guaranty and the other Loan Documents
to which it is a party and the consummation by the Guarantor of the transactions contemplated
hereby and thereby have been duly authorized by all necessary action of the Guarantor. This
Guaranty and such other Loan Documents to which the Guarantor is a party have each been duly
executed and delivered by the Guarantor and each constitutes the legal, valid and binding
obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, subject
to the effect of bankruptcy, insolvency, reorganization, moratorium or similar Laws at the time in
effect affecting the rights of creditors generally and subject to the effects of general principles
of equity (regardless of whether considered in a proceeding in law or equity); and
(c) the execution and delivery of this Guaranty and the other Loan Documents to which the
Guarantor is a party and the consummation by the Guarantor of the transactions contemplated hereby
do not (i) contravene or result in a default under the Guarantor’s Organizational Documents, (ii)
contravene or result in a default under any material contractual restriction or Law binding on the
Guarantor, (iii) require any filings, consents or authorizations which have not been duly obtained
or (iv) result in the creation or imposition of any Lien on the Guarantor’s properties (other than
on behalf of the Administrative Agent).
SECTION 3.2 Additional Covenants. The Guarantor agrees that, until all the Guaranteed
Obligations have been paid in full in cash on terms and pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent and all Commitments shall have
irrevocably terminated, it will comply with all the terms and provisions of the Credit Agreement
and the other Loan Documents that are applicable to it.
ARTICLE IV
MISCELLANEOUS
MISCELLANEOUS
SECTION 4.1 Loan Document. This Guaranty is a Loan Document executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated herein) be construed, administered
and applied in accordance with the terms and provisions thereof, including Section 1.3 and Article
X thereof.
SECTION 4.2 Amendments, etc.; Successors and Assigns.
(a) No amendment to or waiver of any provision of this Guaranty nor consent to any departure
by the Guarantor herefrom, shall be effective unless the same shall be in writing and signed by the
Administrative Agent and the percentage of the Lenders as required by Section 10.1 of the Credit
Agreement, and then such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it is given.
(b) This Agreement shall be binding upon the Guarantor and its successors, transferees and
assignees, and shall inure to the benefit of and be enforceable by the Administrative Agent and
each other Lender Party and their respective successors and assigns; provided,
however, that the Guarantor may not assign its obligations hereunder without the prior
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written consent of the Administrative Agent. Without limiting the generality of the foregoing,
any Lender may assign or otherwise transfer (in whole or in part) its Loans to any other Person,
and such other Person shall thereupon become vested with all the rights and benefits in respect
thereof granted to such Lender under any Loan Document (including this Guaranty) or otherwise,
subject, however, to the provisions of Section 11.10 and Article X of the Credit Agreement.
SECTION 4.3 Addresses for Notices. All notices and other communications provided for
hereunder shall be made as provided in, and subject to the terms of, Section 11.2 of the Credit
Agreement. All notices to the Guarantor shall be sent care of the Borrowers at their address set
forth in the Credit Agreement and all notices to the Administrative Agent shall be sent as provided
in the Credit Agreement.
SECTION 4.4 No Waiver; Remedies. No failure on the part of the Administrative Agent
or any other Lender Party to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other right. The
Administrative Agent and each other Lender Party shall have all remedies available at law or
equity, including without limitation, the remedy of specific performance for any breach of any
provision hereof. The remedies herein provided are cumulative and not exclusive of any remedies
provided by law or equity.
SECTION 4.5 Right to Set-Off. Upon the occurrence and during the continuance of any
Event of Default, the Administrative Agent and each other Lender Party are hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to setoff and apply any and all
deposits (general or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by the Administrative Agent or any such Lender Party, as the case
may be, to or for the credit or the account of the Guarantor against any and all of the Guaranteed
Obligations now or hereafter existing under this Guaranty, irrespective of whether the
Administrative Agent or any such Lender Party shall have made any demand under this Guaranty. Each
Lender Party agrees promptly to notify the Guarantor, the Borrowers and the Administrative Agent
after any such set-off and application made by the Administrative Agent or any such Lender Party,
provided that the failure to give such notice shall not affect the validity of such set-off
and application. The rights of the Administrative Agent and each other Lender Party under this
Section are in addition to other rights and remedies (including, without limitation, other rights
of set-off) which the Administrative Agent or any of the other Lender Parties may have.
SECTION 4.6 Severability. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions of this Guaranty
or affecting the validity or enforceability of such provisions in any other jurisdiction.
SECTION 4.7 Counterparts. This Guaranty may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute but one and the same agreement.
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SECTION 4.8 Governing Law; Entire Agreement. THIS GUARANTY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. THIS GUARANTY AND THE
OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO
THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
SECTION 4.9 Waiver of Jury Trial. THE GUARANTOR AND EACH LENDER PARTY HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF ANY LENDER PARTY OR THE GUARANTOR. THE GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE ADMINISTRATIVE AGENT ENTERING INTO THIS GUARANTY.
SECTION 4.10 Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF, ANY LENDER PARTY OR THE GUARANTOR
SHALL BE BROUGHT AND MAINTAINED IN THE FEDERAL AND STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN
OF THE STATE OF NEW YORK. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION.
EACH LENDER PARTY AND THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK.
THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE GUARANTOR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY.
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SECTION 4.11 Waiver of Certain Claims. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
GUARANTOR SHALL NOT ASSERT, AND HEREBY WAIVES, ANY CLAIM AGAINST EACH LENDER PARTY ON ANY THEORY OF
LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL
DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS GUARANTY OR ANY INSTRUMENT
CONTEMPLATED HEREBY.
SECTION 4.12 No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Guaranty. In the event an ambiguity or question of intent or
interpretation arises, this Guaranty shall be construed as if drafted jointly by the parties hereto
and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provisions of this Guaranty.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed and delivered
by its officer thereunto duly authorized as of the date and year first above written.
| XXXXX TIMBERLAND REIT, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Senior Vice President | |||
| Acknowledged and Accepted: | ||||
| COBANK, ACB, as Administrative Agent |
||||
By: |
/s/ Xxxxxxx Xxxxxxxxxx | |||
| /s/ Xxxxxxx Xxxxxxxxxx | ||||
| Name: Xxxxxxx Xxxxxxxxxx | ||||
| Title: XX | ||||
Xxxxx Reit Limited Guaranty
Signature Page
