GUARANTY AGREEMENT
UNCONDITIONAL GUARANTY OF PAYMENT (this "Guaranty"), is made as of
September 7, 2000 by RECKSON ASSOCIATES REALTY CORP., a Maryland corporation
(the "Guarantor"), in favor of THE CHASE MANHATTAN BANK, as administrative
agent and UBS WARBURG LLC, as syndication agent (collectively, "Agents") for
the benefit of the banks (the "Lenders") that are from time to time parties to
that certain Amended and Restated Credit Agreement (the "Credit Agreement"),
dated as of September 7, 2000, among Reckson Operating Partnership, L.P., the
Lenders and the Agents.
Capitalized terms not otherwise defined in this Guaranty shall have the
meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
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WHEREAS, pursuant to the terms of the Credit Agreement, Reckson Operating
Partnership, L.P. (the "Borrower") requested that the Lenders make Loans to
the Borrower, to be guaranteed by Guarantor and to be evidenced by certain
Promissory Notes (the "Notes"), each dated as of September 7, 2000, in the
aggregate principal amount of $575,000,000, payable by the Borrower to the
order of the Lenders;
WHEREAS, this Guaranty is one of the "Guaranties" referred to in the
Credit Agreement;
WHEREAS, the Guarantor is the general partner of Borrower and has an
eighty-eight percent (88%) beneficial interest therein; and
WHEREAS, in order to induce the Agents and the Lenders to make the Loans
to the Borrower, and to satisfy one of the conditions contained in the Credit
Agreement with respect thereto, the Guarantor has agreed to enter into this
Guaranty.
NOW THEREFORE, in consideration of the premises and the direct and
indirect benefits to be derived from the making of the Loans by the Lenders to
the Borrower, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Guarantor hereby agrees as
follows:
1. (a) Guarantor, on behalf of itself and its successors and assigns,
hereby irrevocably, absolutely, and unconditionally guarantees the full and
punctual payment when due, whether at stated maturity or otherwise, of all
obligations of the Borrower now or hereafter existing under the Credit
Agreement, under the Notes, under any Letter of Credit or Letter of Credit
Reimbursement Agreement or under any of the other Loan Documents to which the
Borrower is a party; and
(b) Guarantor, on behalf of itself and its successors and assigns,
hereby irrevocably, absolutely, and unconditionally guarantees the full and
punctual payment when due of any and all reasonable costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
incurred by the Agents and the Lenders in enforcing their rights under this
Guaranty (all such obligations set forth in this Paragraph 1 being referred to
as the "Guaranteed Obligations").
2. It is agreed that the obligations of Guarantor hereunder are primary
and this Guaranty shall be enforceable against Guarantor and its successors
and assigns without the necessity for any suit or proceeding of any kind or
nature whatsoever brought by the Agents or the Lenders against the Borrower,
or its respective successors or assigns or any other party or against any
security for the payment and performance of the Guaranteed Obligations and, to
the extent permitted by applicable law, without the necessity of any notice of
non-payment or non-observance or of any notice of acceptance of this Guaranty
or of any notice or demand to which Guarantor might otherwise be entitled
(including, without limitation, diligence, presentment, notice of maturity,
extension of time, change in nature or form of the Guaranteed Obligations,
acceptance of further security, release of further security, imposition or
agreement arrived at as to the amount of or the terms of the Guaranteed
Obligations, notice of adverse change in the Borrower's financial condition
and any other fact which might materially increase the risk to Guarantor), all
of which Guarantor, to the extent permitted by applicable law, hereby
expressly waives; and, to the extent permitted by applicable law, Guarantor
hereby expressly agrees that the validity of this Guaranty and the obligations
of the Guarantor hereunder shall in no way be terminated, affected,
diminished, modified or impaired by reason of the assertion of, or the failure
to assert by the Agents or the Lenders against the Borrower or its respective
successors or assigns, any of the rights or remedies reserved to the Agents
and the Lenders pursuant to the provisions of the Loan Documents. Guarantor
hereby agrees that, to the extent permitted by applicable law, any notice or
directive given at any time to the Agents or the Lenders which is inconsistent
with the waiver in the immediately preceding sentence shall be void and may be
ignored by the Agents and the Lenders, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this Guaranty for the
reason that such pleading or introduction would be at variance with the
written terms of this Guaranty, unless the Agents have specifically agreed
otherwise in writing, signed by a duly authorized officer. Guarantor
specifically acknowledges and agrees that the foregoing waivers are of the
essence of this transaction and that, but for this Guaranty and such waivers,
the Agents and the Lenders would not make the requested Loans to the Borrower.
3. To the extent permitted by applicable law, Guarantor hereby waives,
and covenants and agrees that it will not at any time insist upon, plead or in
any manner whatsoever claim or take the benefit or advantage of, any and all
appraisal, valuation, stay, extension, marshalling-of-assets or redemption
laws, or right of homestead exemption, whether now or at any time hereafter in
force, which may delay, prevent or otherwise affect the performance by
Guarantor of its obligations under, or the enforcement by the Agents and the
Lenders of, this Guaranty. To the extent permitted by applicable law,
Guarantor further covenants and agrees not to set up or claim any defense,
counterclaim, offset, set-off or other objection of any kind to any action,
suit or proceeding in law, equity or otherwise, or to any demand or claim that
may be instituted or made by the Agents or the Lenders, other than the defense
of the actual timely payment and performance by the Borrower of the Guaranteed
Obligations hereunder. Guarantor represents, warrants and agrees that, as of
the date hereof, its obligations under this Guaranty are not subject to any
counterclaims, offsets or defenses against the Agents or the Lenders of any
kind.
4. The provisions of this Guaranty are for the benefit of the Agents on
behalf of the Lenders and their successors and permitted assigns, and nothing
herein contained shall impair as among the Borrower, the Lenders and the
Agents the obligations of the Borrower under the Loan Documents.
5. This Guaranty shall be a continuing, unconditional and absolute
guaranty and, to the extent permitted by applicable law, the liability of
Guarantor hereunder shall in no way be terminated, affected, modified,
impaired or diminished by reason of the happening, from time to time, of any
of the following, although without notice or the further consent of Guarantor:
(a) any assignment, amendment, modification or waiver of or change
in any of the terms, covenants, conditions or provisions of any of the
Guaranteed Obligations or the Loan Documents or the invalidity or
unenforceability of any of the foregoing; or
(b) any extension of time that may be granted by the Agents or the
Lenders to the Borrower, any guarantor, or their respective successors or
assigns; or
(c) any action which the Agents or the Lenders may take or fail to
take under or in respect of any of the Loan Documents or by reason of any
waiver of, or failure to enforce any of the rights, remedies, powers or
privileges available to the Agents or the Lenders under this Guaranty or
any of the other Loan Documents or available to the Agents or the Lenders
at law, in equity or otherwise, or any action on the part of the Agents
or the Lenders granting indulgence or extension in any form whatsoever;
or
(d) any sale, exchange, release, or other disposition of any
property pledged, mortgaged or conveyed, or any property in which the
Agents and/or the Lenders have been granted a lien or security interest
to secure any indebtedness of the Borrower to the Agents and/or the
Lenders; or
(e) any release of any person or entity who may be liable in any
manner for the payment and collection of any amounts owed by the Borrower
to the Agents and/or the Lenders; or
(f) the application of any sums by whomsoever paid or however
realized to any amounts owing by the Borrower to the Agents and/or the
Lenders under the Loan Documents in such manner as the Agents and the
Lenders shall determine in their sole discretion; or
(g) the Borrower's or any guarantor's voluntary or involuntary
liquidation, dissolution, sale of all or substantially all of their
respective assets and liabilities, appointment of a trustee, receiver,
liquidator, sequestrator or conservator for all or any part of the
Borrower's or guarantor's assets, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition or
readjustment, or the commencement of other similar proceedings affecting
the Borrower or any guarantor or any of the assets of any of them,
including, without limitation, (i) the release or discharge of the
Borrower or any guarantor from the payment and performance of its
respective obligations under any of the Loan Documents by operation of
law, or (ii) the impairment, limitation or modification of the liability
of the Borrower or any guarantor in bankruptcy, or of any remedy for the
enforcement of the Guaranteed Obligations under any of the Loan
Documents, or Guarantor's liability under this Guaranty, resulting from
the operation of any present or future provisions of the Bankruptcy Code
or other present or future federal, state or applicable statute or law or
from the decision in any court; or
(h) any improper disposition by the Borrower of any Letter of Credit
or the proceeds of the Loans, it being acknowledged by Guarantor that the
Agents and the Lenders shall be entitled to honor any request made by the
Borrower for a disbursement of such proceeds and that the Agents and the
Lenders shall have no obligation to see the proper disposition by the
Borrower of such Letter of Credit or proceeds.
6. Guarantor hereby agrees that if at any time all or any part of any
payment at any time received by the Agents or the Lenders from the Borrower
under any of the Notes or other Loan Documents or Guarantor under or with
respect to this Guaranty is or must be rescinded or returned by the Agents or
the Lenders for any reason whatsoever (including, without limitation, the
insolvency, bankruptcy or reorganization of the Borrower or Guarantor or any
other guarantor), then Guarantor's obligations hereunder shall, to the extent
of the payment rescinded or returned, be deemed to have continued in existence
notwithstanding such previous receipt by the Agents or the Lenders, and
Guarantor's obligations hereunder shall continue to be effective or
reinstated, as the case may be, as to such payment, as though such previous
payment to the Agents or the Lenders had never been made.
7. Until this Guaranty is terminated pursuant to the terms hereof, the
Guarantor (i) shall have no right of subrogation against the Borrower or any
entity comprising same by reason of any payments or acts of performance by
Guarantor in compliance with the obligations of Guarantor hereunder; (ii)
hereby waives any right to enforce any remedy which Guarantor now or hereafter
shall have against the Borrower, or any entity comprising the same, by reason
of any one or more payment or acts of performance in compliance with the
obligations of Guarantor hereunder; and (iii) shall subordinate any liability
or indebtedness of the Borrower or any entity comprising same now or hereafter
held by Guarantor to the obligations of the Borrower, as applicable, under the
Loan Documents; provided that nothing contained herein shall limit the right
of the Guarantor to receive any amount from the Borrower, as applicable, or
any entity comprising the same that is not prohibited by the terms of the Loan
Documents.
8. Guarantor hereby represents and warrants on its own behalf to the
Agents with the knowledge that the Agents and the Lenders are relying upon the
same, as follows:
(a) as of the date hereof, Guarantor is the general partner of
Borrower and has an 88% beneficial interest therein, and Guarantor is
familiar with the financial condition of Borrower;
(c) based upon such relationship, Guarantor has determined that it
is in its best interest to enter into this Guaranty;
(d) this Guaranty is necessary and convenient to the conduct,
promotion and attainment of Guarantor's business, and is in furtherance
of Guarantor's business purposes;
(e) the benefits to be derived by Guarantor from the Borrower's
access to funds made possible by the Loan Documents are at least equal to
the obligations of Guarantor undertaken pursuant to this Guaranty;
(f) Guarantor is Solvent and has full corporate, partnership,
limited liability company or trust power, as the case may be, and legal
right to enter into this Guaranty and to perform its obligations under
the terms hereof and (i) Guarantor is organized or formed and validly
existing under the laws of the state of its establishment or formation,
(ii) Guarantor has complied with all provisions of applicable law in
connection with all aspects of this Guaranty, and (iii) the person
executing this Guaranty on behalf of Guarantor has all the requisite
power and authority to execute and deliver this Guaranty; and
(g) this Guaranty has been duly executed by Guarantor and
constitutes the legal, valid and binding obligation of Guarantor,
enforceable against it in accordance with its terms except as
enforceability may be limited by applicable insolvency, bankruptcy or
other laws affecting creditors' rights generally or general principles of
equity whether such enforceability is considered in a proceeding in
equity or at law.
9. Guarantor and the Agents acknowledge and agree that this Guaranty is a
guaranty of payment and not of collection and enforcement in respect of any
obligations which may accrue to the Agents and/or the Lenders from the
Borrower under the provisions of any Loan Document.
10. Subject to the terms and conditions of the Credit Agreement, and only
in conjunction with a transfer permitted thereunder, the Agents and the
Lenders may assign any or all of their respective rights under this Guaranty.
11. Guarantor agrees, upon the written request of the Agents, to execute
and deliver to the Agents, from time to time, any modification or amendment
hereto or any additional instruments or documents reasonably considered
necessary by the Agents or its counsel to cause this Guaranty to be, become or
remain valid and effective in accordance with its terms or in order to
implement more fully the intent of this Guaranty, provided, that, any such
modification, amendment, additional instrument or document shall not increase
Guarantor's obligations or diminish its rights hereunder and shall be
reasonably satisfactory as to forth to Guarantor and to Guarantor's counsel.
12. The representation and warranties of the Guarantor set forth in this
Guaranty shall survive until this Guaranty shall terminate in accordance with
the terms hereof.
13. This Guaranty together with the Credit Agreement and the other Loan
Documents contains the entire agreement among the parties with respect to the
Loans and other extensions of credit being made to the Borrower, and
supersedes all prior agreements relating to such Loans and other extensions of
credit and may not be modified, amended, supplemented or discharged except by
a written agreement signed by Guarantor and the Agents.
14. If all or any portion of any provision contained in this Guaranty
shall be determined to be invalid, illegal or unenforceable in any respect for
any reason, such provision or portion thereof shall be deemed stricken and
severed from this Guaranty and the remaining provisions and portions thereof
shall continue in full force and effect.
15. In order for any demand, request or notice to the respective parties
hereto to be effective, such demand, request or notice shall be given, in
writing, by delivering the same personally or by nationally recognized
overnight courier service or by mailing, by certified or registered mail,
postage prepaid or by telecopying the same, addressed to such party at the
address set forth below or to such other address as may be identified by any
party in a written notice to the others. Any such demand, request or notice
sent-as aforesaid shall be deemed to have been received by the party to whom
it is addressed upon delivery, if personally delivered and on the actual
receipt thereof, if sent by certified or registered mail or by telecopier, and
when transmitted, if sent by telex:
If to
Guarantor: Reckson Associates Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With Copies of
Notices to the
Guarantor to: ▇▇▇▇▇ & Wood LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agents: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With Copies to: ▇▇▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Van, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
16. This Guaranty shall be binding upon Guarantor and its successors and
assigns and shall inure to the benefit of the Agents and the Lenders and their
successors and assigns.
17. The failure of the Agents to enforce any right or remedy hereunder,
or promptly to enforce any such right or remedy, shall not constitute a waiver
thereof, nor give rise to any estoppel against the Agents or the Lenders, nor
excuse Guarantor from its obligations hereunder. Any waiver of any such right
or remedy to be enforceable against the Agents must be expressly set forth in
a writing signed by the Agents.
18. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
(b) Any legal action or proceeding with respect to this Guaranty and
any action for enforcement of any judgment in respect thereof may be brought
in the courts of the State of New York or of the United States of America for
the Southern District of New York, and, by execution and delivery of this
Guaranty, Guarantor hereby accepts for itself and in respect of its property,
generally and unconditionally, the nonexclusive jurisdiction of the aforesaid
courts and appellate courts from any thereof. Guarantor irrevocably consents
to the service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to Guarantor at the address for notices set
forth herein. Guarantor hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Guaranty brought in
the courts referred to above and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum. Nothing
herein shall affect the right of the Agents and the Lenders to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against Guarantor in any other jurisdiction.
(c) GUARANTOR AND AGENTS BY THEIR EXECUTION HEREOF AND THE LENDERS'
ACCEPTANCE HEREOF EACH HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY AND ALL
CLAIMS OR CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. IT IS
HEREBY ACKNOWLEDGED BY GUARANTOR THAT THE WAIVER OF A JURY TRIAL IS A MATERIAL
INDUCEMENT FOR THE AGENTS TO ACCEPT THIS GUARANTY AND THAT THE LOANS MADE BY
THE LENDERS ARE MADE IN RELIANCE UPON SUCH WAIVER. GUARANTOR FURTHER WARRANTS
AND REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE,
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS
GUARANTY MAY BE FILED BY THE AGENTS IN COURT AS A WRITTEN CONSENT TO A
NON-JURY TRIAL.
(d) Guarantor does hereby further covenant and agree to and with the
Agents that Guarantor may be joined in any action against the Borrower in
connection with the Loan Documents and that recovery may be had against
Guarantor in such action or in any independent action against Guarantor (with
respect to the Guaranteed Obligations), without the Agents or the Lenders
first pursuing or exhausting any remedy or claim against the Borrower, its
successors or assigns. Guarantor also agrees that, in an action brought with
respect to the Guaranteed Obligations in any jurisdiction, it shall be
conclusively bound by the judgment in any such action by the Agents (wherever
brought) against the Borrower, or its successors or assigns, as if Guarantor
were a party to such action, even though Guarantor was not joined as parties
in such action.
(e) Guarantor hereby agrees to pay all expenses (including, without
limitation, reasonable attorneys fees and disbursements) which may be incurred
by the Agents in connection with the enforcement of their rights under this
Guaranty, whether or not suit is initiated; provided, however, that such
expenses shall be paid by the Agents if a final judgment in favor of Guarantor
is rendered by a court of competent jurisdiction. Moreover, Guarantor
covenants and agrees to indemnify and save the Agents harmless of and from,
and defend it against, all losses, out-of pocket costs and expenses,
liabilities, damages or claims arising by reason of Guarantor's failure to
perform its obligations hereunder.
19. Subject to the terms of Section 6 hereof, this Guaranty shall
terminate and be of no further force or effect upon the full performance and
payment of the Guaranteed Obligations hereunder. Upon termination of this
Guaranty in accordance with the terms of this Guaranty, the Agents promptly
shall deliver to Guarantor such documents as Guarantor or Guarantor's counsel
reasonably may request in order to evidence such termination.
20. All of the Agents' and the Lenders' rights and remedies under each of
the Loan Documents or under this Guaranty are intended to be distinct,
separate and cumulative and no such right or remedy therein or herein
mentioned is intended to be in exclusion of or a waiver of any other right or
remedy available to the Agents.
21. Recourse with respect to any claim arising under or in connection
with this Guaranty by Agents, the Arrangers and the Lenders shall be limited
to the same extent as is provided in Section 4.3 (e) of the Credit Agreement
with respect to claims against the Guarantor and the other parties named
therein and the terms, covenants and conditions of Section 4.3 (e) of the
Credit Agreement are hereby incorporated by reference as if fully set forth
herein.
22. By executing and delivering this Guaranty, Guarantor hereby agrees
that it shall be bound by, and shall comply with, all warranties and covenants
applicable to it set forth in the Credit Agreement.
23. Guarantor shall make no claim against any Lender (acting in any
capacity under the Credit Agreement), any Arranger, the Administrative Agent,
or any other Person, or the Affiliates, directors, officers, employees,
attorneys or agents of any of them for any consequential or punitive damages
in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this
Guaranty, or any act, omission or event occurring in connection therewith; and
Guarantor hereby waives, releases and agrees not to ▇▇▇ upon any such claim
for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.
IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be duly
executed and delivered as of the date first set forth above.
RECKSON ASSOCIATES REALTY
CORP., a Maryland corporation
By: ___________________________
Name:
Title: