Exhibit 4.3
GUARANTY
THIS GUARANTY is made and entered into by PENNSYLVANIA REAL ESTATE
INVESTMENT TRUST, an unincorporated association in business trust form (the
"Guarantor"), for the benefit of CORESTATES BANK, N.A. (the "Bank").
BACKGROUND
A. Guarantor is a holder of a 50% or more beneficial, or other
controlling, ownership interest in each of the entities comprising Obligor (as
hereinafter defined).
B. To induce Bank to make credit facilities available to obligor,
Bank has required Guarantor to execute and deliver this Guaranty as a
condition precedent thereto.
NOW, THEREFORE, intending to be legally bound hereby, Guarantor
agrees as follows:
1. OBLIGOR. The "Obligor" means Turren Associates, a Florida general
partnership, Rancocas Limited Partnership, a New Jersey limited partnership,
and VLRC Associates, a Florida general partnership, and any one or more of the
foregoing entities.
2. OBLIGATIONS. The "Obligations" means all existing and hereafter
incurred or arising indebtedness, obligations and liabilities of the Obligor
to the Bank, whether absolute or contingent, direct or indirect, and arising
out of Obligor's Notes in favor of Bank, dated as of the date of this Guaranty
(the "Notes"), and includes, without limitation, all matured and unmatured
indebtedness, obligations and liabilities of the Obligor under or in
connection with existing and future advances evidenced by the Notes or
otherwise, including without limitation all interest, expenses, costs
(including collection costs) and fees (including reasonable attorney's fees
and prepayment fees) incurred, arising or accruing (whether prior or
subsequent to the filing of any bankruptcy petition by or against any Obligor)
under or in connection with any of the foregoing. If the term "Obligor"
includes more than one person or entity, the obligations shall include all
obligations of any one or more of such persons or entities, whether such
Obligations are individual, joint, several or joint and several.
3. UNCONDITIONAL GUARANTY. In consideration of any existing
obligations and any obligations which may hereafter arise or be incurred,
Guarantor, intending to be legally bound, absolutely and unconditionally (and
jointly and severally if more than one) guaranties to Bank, and becomes surety
for, the prompt payment, performance and satisfaction when due (whether by
stated maturity, demand, acceleration or otherwise) of all obligations. The
obligations of Guarantor hereunder shall continue in full force and effect
irrespective of the validity, legality or enforceability of any agreements,
notes or documents pursuant to which any of the obligations arise, or the
existence, value or condition of any collateral for any of the obligations, or
of any other guaranty of the Obligations, or any other circumstance which
might otherwise constitute a legal or equitable discharge of a surety or
guarantor.
4. COST OF ENFORCEMENT. Guarantor agrees to pay Bank all costs and
expenses (including reasonable attorney's fees) at any time incurred by or on
behalf of Bank in the enforcement of this Guaranty against Guarantor.
5. PAYMENT BY GUARANTOR. Payment by Guarantor is due upon demand by
Bank after the occurrence of an event of default under the Obligations and is
payable in immediately available funds in lawful money of the United States of
America.
6. CONTINUING GUARANTY. This Guaranty shall continue in full force
and effect with respect to Guarantor and may not be revoked until all existing
Obligations and all obligations hereafter incurred or arising have been paid,
performed and satisfied in full.
7. WAIVERS AND CONSENTS BY GUARANTOR. Guarantor unconditionally
consents to, and waives as a defense to liability hereunder, each of the
following: (a) any waiver, inaction, delay or lack of diligence by Bank or
others on behalf of Bank in enforcing its rights against any Obligor or in any
property, or the unenforceability of any such rights, including any failure to
perfect, protect or preserve any lien or security interest which may be
intended directly or indirectly to secure any of the Obligations, and the
absence of notice thereof to Guarantor, (b) the absence of any notice of the
incurrence or existence of any obligation, (c) any action, and the absence of
notice thereof to Guarantor, taken by Bank or any Obligor with respect to any
of the Obligations, including any release, subordination or substitution of
any collateral or release, termination, compromise, modification or amendment
of any instrument executed by or applicable to any Obligor or of any claim,
right or remedy against any Obligor or any property, (d) any impairment of
Guarantor's right to reimbursement by way of subrogation, indemnification or
contribution, (e) any other action taken or omitted by Bank in good faith with
(2)
respect to the Obligations, (f) the absence or inadequacy of any formalities
of every kind in connection with enforcement of the obligations, including
presentment, demand, notice and protest, and (g) the waiver of any rights of
Bank under or any action taken or omitted by Bank with respect to any other
guaranty of the obligations.
8. OTHER AGREEMENTS BY GUARANTOR. Guarantor agrees that there shall
be no requirement that Bank document its acceptance of this Guaranty, evidence
its reliance thereon, or that Bank take any action against any person or any
property prior to taking action against Guarantor. Guarantor further agrees
that Bank's rights and remedies hereunder shall not be impaired or subject to
any stay, suspension or other delay as a result of any Obligor's insolvency or
as a result of any proceeding applicable to obligor or Obligor's property
under any bankruptcy or insolvency law. Guarantor also agrees that payments
and other reductions on the obligations may be applied to such of the
obligations and in such order as Bank may elect.
9. SUBROGATION AND SIMILAR RIGHTS. Guarantor will not exercise any
rights with respect to Bank or any Obligor related to or acquired in
connection with or as a result of its making of this Guaranty which it may
acquire by way of subrogation, indemnification or contribution, by reason of
payment made by it hereunder or otherwise, until after the date on which all
of the Obligations shall have been satisfied in full. Until such time any such
rights against the Obligor shall be fully subordinate in lien and payment to
any claim in connection with the Obligations which Bank now or hereafter has
against the Obligor. If any amount shall be paid to Guarantor on account of
such subrogation, indemnification or contribution at any time when all of the
obligations and all other expenses guaranteed pursuant hereto shall not have
been paid in full, such amount shall be held in trust for the benefit of Bank,
shall be segregated from the other funds of Guarantor and shall forthwith be
paid over to Bank to be applied in whole or in part by Bank against the
Obligations, whether matured or unmatured, in such order as the Bank shall
determine in its sole discretion. If Guarantor shall make payment to the Bank
of all or any portion of the obligations and all of the Obligations shall be
paid in full, Guarantor's right of subrogation shall be without recourse to
and without any implied warranties by Bank and shall remain fully subject and
subordinate to Bank's right to collect any other amounts which may thereafter
become due to the Bank by the Obligor in connection with the Obligations.
10. REINSTATEMENT OF LIABILITY. If any claim is made upon the Bank
for repayment or recovery of any amount or amounts received by Bank in payment
or on account of any obligations and Bank repays all or part of said amount by
reason of (a) any judgment, decree or order of any court or administrative
body having jurisdiction over the Bank or any of its property, or (b) any
(3)
settlement or compromise in good faith with any such claimant (including
obligor), then, and in such event, Guarantor agrees that any such judgment,
decree, order, settlement or compromise shall be binding upon Guarantor,
notwithstanding any termination hereof or the cancellation of any note or
other instrument evidencing any Obligation, and Guarantor shall remain liable
to the Bank hereunder for the amount so repaid or recovered to the same extent
as if such amount had never originally been received by Bank.
11. EFFECT OF OTHER AGREEMENTS. The provisions of this Guaranty are
cumulative and concurrent with Bank's rights and remedies against Guarantor
under any existing or future agreement pertaining to or evidencing any of the
Obligations. No such additional agreement shall be deemed a modification or
waiver hereof unless expressly so agreed by Bank in writing. If Bank holds any
other guaranty or surety agreement applicable to any of the obligations, the
liability of Guarantor hereunder shall be joint and several with each party
obligated on such other guaranty or surety agreement, unless otherwise agreed
by Bank in writing.
12. GUARANTOR'S ADDRESS. Guarantor warrants and represents that the
address set forth below is Guarantor's correct mailing address and agrees
immediately to notify Bank in the event of any change therein.
13. MISCELLANEOUS.
(a) No amendment of any provision of this Guaranty shall be
effective unless it is in writing and signed by Guarantor and Bank, and no
waiver of any provisions of this Guaranty, and no waiver or consent to any
departure by Guarantor therefrom, shall be effective unless it is in writing
and signed by Bank, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
(b) 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 portions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
(c) The obligations of Guarantor hereunder shall not be subject
to any counterclaim, setoff, deduction or defense based upon any related or
unrelated claim which Guarantor may now or hereafter have against Bank or any
obligor, except payment of the Obligations, and shall not be affected by any
change in Obligor's legal status or ownership or by any change in corporate,
partnership or other organizational structure applicable to obligor.
(4)
(d) This Guaranty shall (i) be binding on Guarantor, and its
successors and assigns, and (ii) inure, together with all rights and remedies
of Bank hereunder, to the benefit of the Bank and its successors, transferees
and assigns. Notwithstanding the foregoing clause (i), none of the rights or
obligations of any Guarantor hereunder may be assigned or otherwise
transferred without the prior written consent of the Bank.
(e) This Guaranty shall be governed by and construed in
accordance with the internal laws, and not the law of conflicts, of the
Commonwealth of Pennsylvania.
14. CONSENT TO JURISDICTION AND VENUE. IN ANY LEGAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO
THIS GUARANTY OR THE RELATIONSHIP EVIDENCED HEREBY, THE UNDERSIGNED PARTY
HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED IN ANY COUNTY IN THE COMMONWEALTH OF PENNSYLVANIA WHERE
BANK MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH
JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH
PROCEEDING IN SUCH COUNTY. THE UNDERSIGNED PARTY AGREES THAT SERVICE OF
PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY
THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO THE UNDERSIGNED PARTY.
15. WAIVER OF JURY TRIAL. THE UNDERSIGNED HEREBY WAIVES, AND BANK BY
ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS GUARANTY
OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR BANK TO ENTER INTO, ACCEPT OR RELY UPON THIS GUARANTY.
16. The name and designation Pennsylvania Real Estate Investment
Trust is the designation of the Trustees from time to time under the Trust
Agreement amended and restated as of December 16, 1987 and recorded in the
office for the Recording of Deeds in Norristown, Xxxxxxxxxx County,
Pennsylvania, in Deed Book 4864, page 1463, and all persons dealing with the
Pennsylvania Real Estate Investment Trust must look solely to the Trust
property for the enforcement of any claims against the Pennsylvania Real
Estate Investment Trust, as neither the Trustees, officers, agents or
shareholders of the Pennsylvania Real Estate Investment Trust assume any
(5)
personal liability for obligations entered into by the Pennsylvania Real
Estate Investment Trust by reason of their status as said Trustee, officer,
agent or shareholder.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty under seal
as of the 29th day of August, 1996.
PENNSYLVANIA REAL ESTATE
INVESTMENT TRUST
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Xxxxxxx X. Xxxx, Senior
Vice President - Acquisitions
and Secretary
(Corporate Seal)
Address: 000 Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
(6)
