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EXHIBIT 10.zz
GUARANTY OF PAYMENT
RELATING TO LEASING
October 23, 1996
WHEREAS, NEW YORK LIFE INSURANCE COMPANY,a New York mutual insurance
company (the "Lender") has agreed to make a loan to OVERSEAS PARTNERS (AFC),
INC., a Georgia corporation (the "Borrower") in the principal sum of
SEVENTY-NINE MILLION SEVEN HUNDRED THOUSAND and NO/100 DOLLARS ($79,700,000.00)
(the "Loan"), which Loan will be (a) evidenced by and payable in accordance with
the provisions of that certain promissory note dated of even date herewith in
the principal sum of $79,700,000.00 given by the Borrower to the Lender (as the
same may be from time to time amended, the "Note") and (b) secured by that
certain Deed to Secure Debt, Assignment of leases and Rents and Security
Agreement dated of even date herewith given by the Borrower to Lender with
respect to certain premises located in Xxxxxx County, Georgia, as more
particularly described therein (the "Premises"), and intended to be duly
recorded in Xxxxxx County, Georgia (as the same may be from time to time
amended, the "Security Deed"); and
WHEREAS, the Lender is willing to make the Loan only if the undersigned
party or parties (hereinafter referred to, jointly and severally, as the
"Guarantor") executes and delivers this Guaranty and guarantees payment to the
Lender of the Debt (as herein defined) in the manner hereinafter provided;
WHEREAS, Guarantor will directly benefit from the making of the Loan by the
Lender to the Borrower;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, and in order to induce the Lender to make the Loan to the
Borrower, Guarantor hereby acknowledges, agrees and confirms that all of the
above recitals are true, correct and complete and hereby guarantees, absolutely,
irrevocably and unconditionally, to the Lender the full and timely payment of
the Debt and covenants and agrees with the Lender as follows:
1. DEFINITIONS. The term "Debt" as used in this Guaranty shall mean the
following:
(a) any and all costs, expenses and fees for the following matters
relating to leases of all or any portion of the Premises (even though the
actual payment of such amounts may occur or be due and payable after
Borrower no longer holds legal or beneficial title to the Premises), after
deduction for the
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amount of any monies held pursuant to the Reserve Account Agreement between
Borrower and Lender of even date herewith or otherwise realized by Lender
From funds held pursuant to such Reserve Account Agreement:
(i) all initial tenant improvements required by leases to be paid for
by landlord to prepare initial space for new occupancy by tenants
pursuant to leases entered into before or during Borrower's
ownership of legal or beneficial title to the Premises;
(ii) all leasing commissions required to be paid by landlord with
respect to the initial term (but not any renewal, extension or
expansion thereof) of new leases entered into before or during
Borrower's ownership of legal or beneficial title to the
Premises;
(iii) all tenant improvements required by leases to be paid for by
landlord as the result of any lease extension or renewal which is
exercised by, or effected with respect to, any tenant during
Borrower's ownership of legal or beneficial title to the
Premises, but only such tenant improvements as are required to be
paid for by landlord prior to the expiration of the then-existing
term or with respect to the applicable extension or renewal term;
(iv) all leasing commissions required to be paid by landlord as a
result of any lease extension or renewal which is exercised by,
or effected with respect to, any tenant during Borrower's
ownership of legal or beneficial title to the Premises, but only
such commissions as are payable with respect to the time periods
for which such leases are extended or renewed (and not any
further extension, renewal or expansion not exercised during
Borrower's ownership);
(v) all initial tenant improvements required by leases to be paid for
by landlord to prepare initial expansion space for new occupancy
by tenants as a result of any lease expansion which is exercised
by, or - effected with respect to, any tenant during Borrower's
ownership of legal or beneficial title to the Premises;
(vi) all leasing commissions required to be paid by landlord with
respect to the term of any lease expansion which is exercised by,
or effected with respect to, any tenant during Borrower's
ownership of legal or beneficial title to the Premises (but not
any further renewal, extension or expansion thereof not exercised
during Borrower's ownership); and
(b) any and all costs and expenses, including without limitation
reasonable attorneys' fees, incurred by Xxxxxx in enforcing, defending or
protecting
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its rights, remedies and recourses hereunder, whether or not suit is filed
in connection with same, or in connection with Guarantor or any party
comprising Guaranty becoming a party to a voluntary or involuntary federal
or state bankruptcy, insolvency or other proceeding.
2. GUARANTY. Guarantor hereby absolutely and unconditionally guarantees
unto Lender the full and prompt payment when due, and agrees to pay to Xxxxxx
immediately upon demand after Xxxxxxxx's failure to pay all or any portion of
the Debt.
3. FINANCIAL CONDITION AND INFORMATION. Guarantor hereby represents and
warrants that all financial statements of Guarantor heretofore delivered to the
Lender by or on behalf of Guarantor are true and correct in all material
respects and fairly present the financial condition of Guarantor as of the
respective dates thereof, and no material adverse change has occurred in the
financial conditions reflected therein since the respective dates thereof. In
addition, Guarantor covenants that so long as any portion of the Debt remains
outstanding and unpaid, Guarantor will furnish Lender annually, within one
hundred twenty (120) days next following the fiscal year of the Guarantor, with
a complete copy of an annual financial statement with respect to Guarantor
prepared in accordance with generally accepted accounting principles
consistently applied and certified by the chief financial officer of Guarantor
to be true, correct and complete, and otherwise in form and substance reasonably
satisfactory to Lender. Together with each such financial statement, Guarantor
shall furnish to Lender a certificate signed by a duly authorized representative
of such Guarantor certifying on the date thereof that to the best of such
representative's knowledge either that there does or does not exist an event
which constitutes, or which upon notice or lapse of time or both would
constitute, an Event of Default under this Agreement and, if a default or Event
of Default exists, the nature thereof and the period of time it has existed (a
"Certification"). Guarantor shall furnish to Lender, within ten (10) days after
request, such further detailed financial and other information (including, but
not limited to, financial statements) as may be requested by Xxxxxx with respect
to Guarantor, as of a date not earlier than that specified by Xxxxxx in such
request, together with a Certification with respect thereto.
4. SEPARATE OBLIGATION. Guarantor hereby expressly agrees that this
Guaranty is independent of, and in addition to, all collateral granted, pledged
or assigned under the Note, Security Deed and other documents and instruments
given to evidence or secure the Loan, and Guarantor hereby consents that from
time to time, before or after any default by the Borrower, with or without
further notice to or assent from Guarantor:
(a) any security at any time held by or available to the Lender for
any obligation of the Borrower, or any security at any time held by or
available to the Lender for any obligation of any other person or party
secondarily or otherwise liable for all or any portion of the Debt,
including any guarantor of the Debt, or any obligations of Guarantor
hereunder, may be settled, exchanged, surrendered or released and the
Lender may fail to set off and may release, in whole or in part, any
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balance of any deposit account or credit on its books in favor of the
Borrower, or any such other person or party;
(b) any obligation of the Borrower, or of any such other person or
party, may be changed, altered, renewed, extended, continued, accelerated,
surrendered, compromised, settled, waived or released in whole or in part,
or any default with respect thereto waived; and
(c) the Lender may extend further credit in any manner whatsoever to
the Borrower, and generally deal with the Borrower or any of the above
mentioned security, deposit account, credit on its books or other person or
party as the Lender may see fit;
and Guarantor shall remain bound under this Guaranty, without any loss of rights
by the Lender and without affecting the liability of Guarantor, notwithstanding
any such exchange, surrender, release, change, alteration, renewal, extension,
continuance, compromise, waiver, inaction, extension of further credit or other
dealing.
5. WAIVER. Guarantor hereby waives:
(a) notice of acceptance of this Guaranty and of the making of the
Loan or any advance thereof by the Lender to the Borrower;
(b) presentment and demand for payment of the Debt or any portion
thereof
(c) protest and notice of dishonor or default to Guarantor or to any
other person or party with respect to the Debt or any- portion thereof
(d) all other notices to which Guarantor might otherwise be entitled
except as specified in this Guaranty; and
(e) any demand under this Guaranty.
In addition, Guarantor hereby waives, and agrees to waive, the benefits of any
provision of law requiring that Lender exhaust any right or remedy, or take any
action, against the Borrower, any Guarantor, any other person and/or property
including but not limited to the provisions of the Official Code of Georgia
Section 10-7-24 and Official Code of Georgia Section 11-3-601, as amended, or
otherwise.
6. EVENT OF DEFAULT. If Guarantor violates any provision of this Guaranty
(and such violation is not cured within five (5) business days after notice from
Lender to Guarantor thereof provided that Guarantor will not be entitled to any
notice of default under this clause more than four (4) times during the term
hereof); then, and in such event,
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the Lender may exercise any and all rights and remedies it may have at law, in
equity or as provided herein.
7. GUARANTY OF PAYMENT. This is a Guaranty of payment and not of collection
and Guarantor further waives any right to require that any action be brought
against the Borrower or any other person or party or to require that resort be
had to any security or to any balance of any deposit account or credit on the
books of the Lender in favor of the Borrower or any other person or party. Any
payment on account of or reacknowledgment of the Debt by the Borrower, or any
other party liable therefor shall be deemed to be taken or made on behalf of
Guarantor and shall serve to start anew the statutory period of limitations
applicable to the Debt.
8. SUCCESSORS AND ASSIGNS. Each reference herein to the Lender shall be
deemed to include its successors and assigns, in 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 (as applicable) of Guarantor, all of whom shall be bound
by the provisions of this Guaranty, provided, however, that Guarantor shall in
no event nor under any circumstance have the right, without obtaining the prior
written consent of the Lender, to assign or transfer Guarantor's obligations and
liabilities under this Guaranty, in whole or in part, to any other person, party
or entity.
9. MISCELLANEOUS. The term "Guarantor" as used herein shall, if this
Guaranty is signed by more than one party, unless otherwise stated herein, mean
the "Guarantor and, if Guarantor consists of more than one party, each of them"
and each undertaking herein contained shall be their joint and several
undertaking. If there is more than one party comprising Guarantor, the Lender
may proceed against none, one or more of Guarantor at one time or from time to
time as it sees fit in its sole and absolute discretion. If any party hereto
shall be a partnership, the agreements and obligations on the part of Guarantor
herein contained shall remain in force and application notwithstanding any
changes in the individuals composing the partnership and the term "undersigned"
shall include any altered or successive partnerships but the predecessor
partnerships and their partners shall not thereby be released from any
obligations or liability hereunder_ If any party hereto shall be a corporation,
the agreements and obligations on the part of Guarantor herein contained shall
remain in force and application notwithstanding the merger, consolidation,
reorganization or absorption thereof, and the term "undersigned" shall include
such new entity, but the old entity shall not thereby be released from any
obligations or liabilities hereunder.
10. DELAY NOT WAIVER. No delay on the part of the Lender in exercising any
right or remedy under this Guaranty or failure to exercise the same shall
operate as a waiver in whole or in part of any such right or remedy. No notice
to or demand on Guarantor shall be deemed to be a waiver of the obligation of
Guarantor or of the right of the Lender to take further action without notice or
demand as provided in this Guaranty.
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No course of dealing between Guarantor and the Lender shall change, modify or
discharge, in whole or in part, this Guaranty or any obligations of Guarantor
hereunder.
11. MODIFICATION IN WRITING ONLY. This Guaranty may only be modified,
amended, changed or terminated by an agreement in writing signed by the Lender
and Guarantor. No waiver of any term, covenant or provision of this Guaranty
shall be effective unless given in writing by the Lender and if so given by the
Lender shall only be effective in the specific instance in which given. The
execution and delivery hereafter to the Lender by Guarantor of a new instrument
of guaranty or any reaffirmation of guaranty, of whatever nature, shall not
terminate, supersede or cancel this instrument, unless expressly so provided
therein, and all rights and remedies of the Lender hereunder or under any
instrument of guaranty hereafter executed and delivered to the Lender by
Guarantor shall be cumulative and may be exercised singly or concurrently.
12. ABSOLUTE AND UNCONDITIONAL OBLIGATIONS. Guarantor acknowledges that
this Guaranty and Guarantor's obligations under this Guaranty are and shall at
all times continue to be absolute, irrevocable and unconditional in all
respects, and shall at all times be valid and enforceable irrespective of any
other agreements or circumstances of any nature whatsoever which might otherwise
constitute a defense to this Guaranty and the obligations of Guarantor under
this Guaranty or the obligations of any other person or party (including,
without limitation, the Borrower) relating to this Guaranty or the obligations
of Guarantor hereunder or otherwise with respect to the Debt, including bur not
limited to, a foreclosure of the Security Deed or the realization upon any other
collateral given, pledged or assigned as security for all or any portion of the
Debt, or the filing of a petition under Title 11 of the United States Code with
regard to the Borrower or Guarantor, or the commencement of an action or
proceeding for the benefit of the creditors of the Borrower or Guarantor, or the
obtaining by the Lender of title to, respectively, the Premises or to any
collateral given, pledged or assigned as security for the Debt by reason of the
foreclosure or enforcement of the Security Deed or any other pledge or security
agreement, the acceptance of a deed or assignment in lieu of foreclosure or
sale, or otherwise. This Guaranty sets forth the entire agreement and
understanding of the Lender and Guarantor with respect to the matters covered by
this Guaranty, and Guarantor acknowledges that no oral or other agreements,
understandings, representations or warranties exist with respect to this
Guaranty or with respect to the obligations of Guarantor under this Guaranty,
except those specifically set forth in this Guaranty.
13. CONSENT, CAPACITY AND AUTHORITY. If Guarantor or any party comprising
Guarantor is a corporation, partnership or association, as to such entity, this
Guaranty has been validly authorized, executed and delivered by such entity.
Such entity represents and warrants to the Lender that it has the corporate or
partnership, as applicable, power to do so and to perform its obligations under
this Guaranty and this Guaranty constitutes the legally binding obligation of
Guarantor fully enforceable against such entity in accordance with the terms
hereof. Guarantor further represents and warrants to the Lender that:
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(a) neither the execution and delivery of this Guaranty nor the
consummation of the transactions contemplated hereby nor compliance with the
terms and provisions hereof will violate any applicable provision of law or any
applicable regulation or other manifestation of governmental action; and
(b) all necessary approvals, consents, licenses, registrations and
validations of any governmental regulatory body, including, without limitation,
approvals required to permit Guarantor to execute and carry out the provisions
of this Guaranty, for the validity of the obligations of Guarantor hereunder and
for the making of any payment or remittance of any funds required to be made by
Guarantor under this Guaranty, have been obtained and are in full force and
effect.
14. NO CONTRIBUTION RIGHT. Notwithstanding any payments made by Guarantor
pursuant to the provisions of this Guaranty, Guarantor shall not seek to enforce
or collect upon any rights which it now has or may acquire against the Borrower
either by way of subrogation, indemnity, reimbursement or contribution for any
amount paid under this Guaranty or by way of any other obligations whatsoever of
the Borrower to Guarantor, until the entire Debt and expenses in connection
therewith shall have been paid in full, nor file, assert or receive payment on
any claim, whether now existing or hereafter arising; against the Borrower in
the event of the commencement of a case by or against the Borrower under Title
11 of the United States Code. In the event either a petition is filed under said
Title 11 of the United States Code with regard to the Borrower or an action or
proceeding is commenced for the benefit of the creditors of the Borrower, this
Guaranty shall at all times thereafter remain effective in regard to any
payments or other transfers of assets to the Lender received from or on behalf
of the Borrower prior to notice of termination of this Guaranty and which are or
may be held violable on the grounds of preference or fraud, whether or not the
Debt has been paid in full.
15. NOTICE TO PARTIES. All notices and demands hereunder shall be in
writing and shall be deemed to have been sufficiently given or served for all
purposes when presented personally or sent by certified or registered mail with
return receipt requested or by generally recognized overnight delivery service,
addressed to the parties at the addresses stated below, or at such other address
as either party may hereafter notify the other in writing as aforesaid:
Guarantor: OVERSEAS PARTNERS CAPITAL CORP.
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Legal Department
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with a courtesy copy to: OVERSEAS PARTNERS CAPITAL CORP.
Xxxxx Appin House
P.O. Box HM1581
0 Xxxxxx Xxxxxx
Xxxxxxxx XX GX
Bermuda
Att.: Xxxxxx X. Xxxxxx, Esq.
Lender: NEW YORK LIFE INSURANCE.
COMPANY
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Senior Vice President
Mortgage Finance Department
Service of any such notice or demand so made shall be deemed effective on the
day of actual delivery as shown by the addressee's return receipt or the
expiration of forty-eight (48) hours after the date sent by generally recognized
overnight delivery service or mailed, whichever is the earlier in time, except
that service of any notice of default or notice of sale provided or required by
law shall, if mailed, be deemed effective on the date of mailing.
16. GOVERNING LAW. This Guaranty is, and shall be deemed to be, a contract
entered into under and pursuant to the laws of the State of Georgia.
17. JURISDICTION. Guarantor hereby agrees that the venue of any litigation
arising in connection with the Debt or in respect of any of the obligations of
Guarantor under this Guaranty, to the extent permitted by law, may at the
election of lender be in Xxxxxx County, Georgia, Guarantor hereby waiving all
objections thereto. Xxxxxxxxx agrees to submit to personal jurisdiction in the
State of Georgia in any action or proceeding arising out of this Guaranty.
Guarantor hereby agrees and consents that without limiting other methods of
obtaining jurisdiction, personal jurisdiction over Guarantor in any such action
or proceeding may be obtained within or without the jurisdiction of any court
located in Georgia and that any process or notice of motion or other application
to any such court in connection with any such action or proceeding may be served
upon Guarantor by registered or certified mail to or by personal service at the
last known address of Guarantor, whether such address be within or without the
jurisdiction of any such court.
18. WAIVER OF SET OFF, ETC. Guarantor absolutely, unconditionally and
irrevocably waives any and all right to assert or interpose any defense, setoff,
counterclaim or crossclaim of any nature whatsoever with respect to this
Guaranty of the obligations of Guarantor hereunder otherwise with respect to the
Loan in any action or preceding brought by
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the Lender to collect the Debt, or any portion thereof, or to enforce the
obligations of Guarantor under this Guaranty.
19. RECOURSE OBLIGATION. No exculpatory provisions which may be contained
in the Note or in any other document evidencing or securing the Note shall in
any event or under any circumstances be deemed or construed to modify, qualify,
or affect in any manner whatsoever the obligations and liabilities of Guarantor
under this Guaranty.
20. UNCONDITIONAL LIABILITY. The liability of Guarantor shall. not be
released, diminished, impaired, reduced or adversely affected by the invalidity,
illegality or unenforceability of all or part of the Loan, or any document or
agreement executed in connection with the Loan, for any reason whatsoever,
including without limitation the fact that (I) the Loan, or any part thereof,
exceeds the amount permitted by law, (ii) the act of creating the Loan or any
part thereof is ultra xxxxx, (iii) the officers or representatives executing the
Note or the other documents evidencing or securing the Loan or otherwise
creating the Loan acted in excess of their authority, (iv) the Loan violates
appli cable usury laws, (v) the Borrower has valid defenses, claims or offsets
(whether at law, in equity or by agreement) which render the Debt or the Loan
wholly or partially uncollectable from the Borrower, (vi) the creation,
performance or repayment of the Loan (or the execution, delivery and performance
of any document or instrument representing part of the Loan or executed in
connection with the Loan, or given to secure the repayment of the Loan) is
illegal, uncollectable or unenforceable, or (vii) the Note or any of the other
documents evidencing or securing the Loan have been forged or otherwise are
irregular or not genuine or authentic, it being agreed that Guarantor shall
remain liable hereon regardless of whether the Borrower or any other person be
found not liable on the Loan or any part thereof for any reason.
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[SIGNATURE PAGE TO GUARANTY OF PAYMENT RELATING TO LEASING]
IN WITNESS WHEREOF, Xxxxxxxxx has duly executed this Guaranty under seal
the day and year first above set forth.
GUARANTOR:
OVERSEAS PARTNERS CAPITAL
CORP., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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Title: President & CEO
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Attest:/s/ Xxxxx X. Xxxxxxxx
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Title: Paralegal
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(Corporate Seal)
