EXHIBIT 10.85
THIRD AMENDED AND RESTATED GUARANTY OF PAYMENT
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THIRD AMENDED AND RESTATED GUARANTY OF PAYMENT (this "Guaranty"), made
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as of March 15, 2002, between ▇▇▇▇▇▇ REALTY CORPORATION, a Maryland corporation,
having an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Guarantor"), and JPMORGAN CHASE BANK, a New York banking
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corporation, having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as
administrative agent (the "Administrative Agent") for the banks (the "Banks")
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listed on the signature pages of the Third Amended and Restated Revolving Credit
Agreement (as the same may be amended, modified, supplemented or restated, the
"Credit Agreement"), dated as of the date hereof, among ▇▇▇▇▇▇ Realty, L.P.
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("Borrower"), the Banks, the Administrative Agent, in its capacity as
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Administrative Agent and Bank, ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Lead Arranger and
Sole Bookrunner, Commerzbank AG, First Union National Bank and Fleet National
Bank, as Syndication Agents, and Bank One, N.A. and Dresdner Bank AG, New York
and Grand Cayman Branches, as Co-Documentation Agents.
W I T N E S S E T H:
- - - - - - - - - --
WHEREAS, the Borrower, the Administrative Agent's
predecessor-in-interest by merger and certain of the Banks entered into the
Revolving Credit Agreement, dated as of February 24, 1998, which was amended and
restated in its entirety by that certain Amended and Restated Revolving Credit
Agreement, dated as of October 9, 1998, which in turn was amended and restated
in its entirety by that certain Second Amended and Restated Revolving Credit
Agreement, dated as of November, 1999 (the "Existing Credit Agreement"); and
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WHEREAS, the parties hereto have agreed to amend and restate the terms
and conditions contained in the Existing Credit Agreement in their entirety as
set forth in the Credit Agreement; and
WHEREAS, as a condition to the execution and delivery of the Credit
Agreement, the Banks have required that Guarantor amend and restate the Guaranty
of Payment, dated as February 24, 1998, which was amended and restated in its
entirety by that certain Amended and Restated Guaranty of Payment, dated as of
October 9, 1998, which in turn was amended and restated in its entirety by that
certain Second Amended and Restated Guaranty of Payment, dated as of November 8,
1999 (the "Existing Guaranty"); and
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WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings ascribed thereto in the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. The Existing Guaranty is hereby modified so that all of the terms
and conditions of the aforesaid Existing Guaranty shall be restated in their
entirety as set forth herein, and Guarantor agrees to comply with and be subject
to all of the terms, covenants and conditions of this Guaranty.
II. This Guaranty shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and assigns, and shall be
deemed to be effective as of the date hereof.
III. Any reference in the Notes, any other Loan Document or any other
document executed in connection with this Agreement to the Existing Guaranty
shall be deemed to refer to this Guaranty.
I. 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 Borrower now or hereafter existing under the Notes and the Credit
Agreement, for principal and/or interest as well as any and all other amounts
due thereunder, including, without limitation, all indemnity obligations of
Borrower thereunder, and any and all reasonable costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements) incurred by
the Administrative Agent or the Banks in enforcing its rights under this
Guaranty (all of the foregoing obligations being the "Guaranteed Obligations").
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II. It is agreed that the Guaranteed 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 Administrative Agent against
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
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
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the amount of or the terms of the Guaranteed Obligations, notice of adverse
change in Borrower's financial condition and any other fact which might
materially increase the risk to Guarantor), all of which Guarantor hereby
expressly waives; and Guarantor hereby expressly agrees that the validity of
this Guaranty and the obligations of 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 Administrative Agent against
Borrower or its respective successors or assigns, any of the rights or remedies
reserved to the Administrative Agent pursuant to the provisions of the Loan
Documents. Guarantor agrees that any notice or directive given at any time to
the Administrative Agent which is inconsistent with the waiver in the
immediately preceding sentence shall be void and may be ignored by the
Administrative Agent, 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 Administrative Agent has specifically agreed otherwise in a
writing, signed by a duly authorized officer of the Administrative Agent.
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 Administrative Agent would decline to execute the Loan Documents.
III. Guarantor 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,
marshaling-of-assets or redemption laws, or right of homestead or other
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 Administrative Agent of, this Guaranty.
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 Administrative Agent other than the defense of the
actual timely payment and performance by Borrower of the Guaranteed Obligations
hereunder; provided, however, that the foregoing shall not be deemed a waiver of
Guarantor's right to assert any compulsory counterclaim, if such counterclaim is
compelled under local law or rule of procedure, nor shall the foregoing be
deemed a waiver of Guarantor's right to assert any claim which would constitute
a defense, setoff, counterclaim or crossclaim of any nature whatsoever against
Administrative Agent or any Bank in any separate action or proceeding. 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 Administrative Agent or any of the Banks of any kind.
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IV. The provisions of this Guaranty are for the benefit of the
Administrative Agent and the Banks and their successors and permitted assigns,
and nothing herein contained shall impair as between Borrower and the
Administrative Agent and the Banks the obligations of Borrower under the Loan
Documents.
V. This Guaranty shall be a continuing, unconditional and absolute
guaranty and 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:
(1) 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
(2) any extension of time that may be granted by the Administrative
Agent and/or any Bank to Borrower, any guarantor, or their respective
successors or assigns, heirs, executors, administrators or personal
representatives; or
(3) any action which the Administrative Agent may take or fail to
take under or in respect of any of the Loan Documents or by reason of any
waiver or, or failure to enforce any of the rights, remedies, powers or
privileges available to the Administrative Agent under this Guaranty or
available to the Administrative Agent at law, equity or otherwise, or any
action on the part of the Administrative Agent granting indulgence or
extension in any form whatsoever; or
(4) any sale, exchange, release, or other disposition of any property
pledged, mortgaged or conveyed, or any property in which the Administrative
Agent and/or the Banks have been granted a lien or security interest to
secure any indebtedness of Borrower to the Administrative Agent and/or the
Banks; or
(5) any release of any person or entity who may be liable in any
manner for the payment and collection of any amounts owed by Borrower to
the Administrative Agent and/or the Banks; or
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(6) the application of any sums by whomsoever paid or however
realized to any amounts owing by Borrower to the Administrative Agent
and/or the Banks under the Loan Documents in such manner as the
Administrative Agent shall determine in its sole discretion; or
(7) 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 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 Borrower or any
guarantor or any of the assets of any of them, including, without
limitation, (i) the release or discharge of Borrower or any guarantor from
the payment and performance of their respective obligations under any of
the Loan Documents by operation of law, or (ii) the impairment, limitation
or modification of the liability of 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
(8) any improper disposition by Borrower of the proceeds of the
Loans, it being acknowledged by Guarantor that the Administrative Agent or
any Bank shall be entitled to honor any request made by Borrower for a
disbursement of such proceeds and that neither the Administrative Agent nor
any Bank shall have any obligation to see to the proper disposition by
Borrower of such proceeds.
VI. Guarantor agrees that if at any time all or any part of any
payment at any time received by the Administrative Agent and/or any Bank from
Borrower or Guarantor under or with respect to this Guaranty is or must be
rescinded or returned by the Administrative Agent or any Bank for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of Borrower or 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 such party, 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 had
never been made.
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VII. Until this Guaranty is terminated pursuant to the terms hereof,
Guarantor (i) shall have no right of subrogation against 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) waives any right to
enforce any remedy which Guarantor now or hereafter shall have against Borrower
or any entity comprising same by reason of any one or more payment or acts of
performance in compliance with the obligations of Guarantor hereunder and (iii)
subordinates any liability or indebtedness of Borrower or any entity comprising
same now or hereafter held by Guarantor or any affiliate of Guarantor to the
obligations of Borrower under the Loan Documents, provided, however, until an
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Event of Default has occurred and is continuing, Borrower or any entity
comprising same shall not be prohibited from making payments to Guarantor or any
affiliate thereof on such subordinated liability or indebtedness in accordance
with the terms thereof. The foregoing, however, shall not be deemed in any way
to limit any rights that Guarantor may have pursuant to the Agreement of Limited
Partnership of Borrower or which it may have at law or in equity with respect to
any other partners of Borrower.
VIII. Guarantor represents and warrants to the Administrative Agent
and the Banks (with the knowledge that the Administrative Agent and the Banks
are relying upon the same) as of the date hereof, as follows:
(1) as of the date hereof, Guarantor is the sole general partner of
Borrower;
(2) based upon such relationship, Guarantor has determined that it is
in its best interests to enter into this Guaranty;
(3) in the good faith judgement of Guarantor, the benefits to be
derived by Guarantor from Borrower's access to funds made possible by the
Loan Documents are at least equal to the obligations undertaken pursuant to
this Guaranty;
(4) Guarantor is solvent and has corporate power and authority to
enter into this Guaranty and to perform its obligations under the term
hereof and (i) Guarantor is organized and validly existing under the laws
of the State of Maryland, (ii) Guarantor has complied with all provisions
of applicable law in connection with all aspects of this Guaranty, and
(iii) the persons executing this Guaranty have all the requisite power and
authority to execute and deliver this Guaranty;
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(5) to the best of Guarantor's knowledge, there is no action, suit,
proceeding, or investigation pending or threatened against or affecting
Guarantor at law, in equity, in admiralty or before any arbitrator or any
governmental department, commission, board, bureau, agency or
instrumentality (domestic or foreign) which is reasonably likely to
materially and adversely impair the ability of Guarantor to perform its
obligations under this Guaranty;
(6) the execution and delivery of and the performance by Guarantor of
its obligations under this Guaranty have been duly authorized by all
necessary action on the part of Guarantor and do not (i) violate any
provision of any law, rule, regulation (including, without limitation,
Regulation U, T or X of the Board of Governors of the Federal Reserve
System of the United States), order, writ, judgment, decree, determination
or award presently in effect having applicability to Guarantor or the
organizational documents of Guarantor the consequences of which violation
is likely to materially and adversely impair the ability of Guarantor to
perform its obligations under this Guaranty or (ii) violate or conflict
with, result in a breach of or constitute a default under any material
indenture, agreement or other instrument to which Guarantor is a party, or
by which Guarantor or any of its property is bound the consequences of
which violation, conflict, breach or default is reasonably likely to
materially and adversely impair the ability of Guarantor to perform its
obligations under this Guaranty;
(7) 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;
(8) no authorization, consent, approval, license or formal exemption
from, nor any filing, declaration or registration with, any Federal, state,
local or foreign court, governmental agency or regulatory authority is
required in connection with the execution, delivery and performance by
Guarantor of this Guaranty, except those which have already been obtained;
and
(9) Guarantor is not an "investment company" as that term is defined
in, nor is it otherwise subject to regulation under, the Investment Company
Act of 1940, as amended.
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IX. Guarantor and the Administrative Agent each acknowledge and
agree that this Guaranty is a guarantee of payment and performance and not of
collection and enforcement in respect of any obligations which may accrue to the
Administrative Agent and/or the Banks from Borrower under the provisions of any
Loan Document.
X. Subject to the terms and conditions of the Credit Agreement, and
in conjunction therewith, the Administrative Agent or any Bank may assign any or
all of its rights under this Guaranty. In the event of any such assignment, the
Administrative Agent shall give Guarantor prompt written notice of same. If the
Administrative Agent and/or any Bank elects to sell all the Loans or
participations in the Loans and the Loan Documents, including this Guaranty, the
Administrative Agent or any Bank may forward to each purchaser and prospective
purchaser all documents and information relating to this Guaranty or to
Guarantor, whether furnished by Borrower or Guarantor or otherwise, subject to
the terms and conditions of the Credit Agreement.
XI. Guarantor agrees, upon the written request of the Administrative
Agent, to execute and deliver to the Administrative Agent, from time to time,
any modification or amendment hereto or any additional instruments or documents
reasonably considered necessary by the Administrative Agent or its counsel to
cause this Guaranty to be, become or remain valid and effective in accordance
with its terms, provided, that any such modification, amendment, additional
instrument or document shall not increase Guarantor's obligation's or diminish
its rights hereunder and shall be reasonably satisfactory as to form to
Guarantor and to Guarantor's counsel.
XII. The representations and warranties of Guarantor set forth in
this Guaranty shall survive until this Guaranty shall terminate in accordance
with the terms hereof.
XIII. This Guaranty contains the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior agreements
relating to such subject matter and may not be modified, amended, supplemented
or discharged except by a written agreement signed by Guarantor and the
Administrative Agent.
XIV. 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
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this Guaranty and the remaining provisions and portions thereof shall continue
in full force and effect.
XV. This Guaranty may be executed in counterparts which together
shall constitute the same instrument.
XVI. All notices, requests and other communications to any party
hereunder shall be in writing (including bank wire, telex, facsimile
transmission followed by telephonic confirmation or similar writing) and shall
be, 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:
If to Guarantor: ▇▇▇▇▇▇ Realty Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With Copies of
Notices to
Guarantor to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Administrative
Agent:
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. Mix
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
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With Copies of
Notices to the
Administrative Agent to: JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Loan and Agency Services
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
and to: Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Each such notice, request or other communication shall be effective
(i) if given by telex or facsimile transmission, when such telex or facsimile is
transmitted to the telex number or facsimile number specified in this Section
and the appropriate answerback or facsimile confirmation is received, (ii) if
given by certified registered mail, return receipt requested, with first class
postage prepaid, addressed as aforesaid, upon receipt or refusal to accept
delivery, (iii) if given by a nationally recognized overnight carrier, 24 hours
after such communication is deposited with such carrier with postage prepaid for
next day delivery, or (iv) if given by any other means, when delivered at the
address specified in this Section.
XVII. Any acknowledgment or new promise, whether by payment of
principal or interest or otherwise by Borrower or Guarantor, with respect to the
Guaranteed Obligations shall, if the statute of limitations in favor of
Guarantor against the Administrative Agent shall have commenced to run, toll the
running of such statute of limitations, and if the period of such statute of
limitations shall have expired, prevent the operation of such statute of
limitations.
XVIII. This Guaranty shall be binding upon Guarantor and its
successors and assigns and shall inure to the benefit of the Administrative
Agent and the Banks and their successors and permitted assigns.
XIX. The failure of the Administrative Agent 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
Administrative Agent, nor excuse Guarantor from its obligations hereunder. Any
waiver of any such
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right or remedy to be enforceable against the Administrative Agent must be
expressly set forth in a writing signed by the Administrative Agent.
XX. (1) 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.
(2) 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,
the Guarantor hereby accepts for itself and in respect of its property,
generally and unconditionally, the non-exclusive jurisdiction of the aforesaid
courts and appellate courts from any thereof. The 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 the Guarantor at its address for notices set forth
herein. The Guarantor hereby irrevocably waives, to the fullest extent permitted
by law, 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, to the fullest extent permitted by law, 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 Administrative Agent to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Guarantor in any other jurisdiction.
(3) GUARANTOR 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 ADMINISTRATIVE AGENT TO ACCEPT THIS GUARANTY AND THAT THE
LOANS MADE BY THE BANKS 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 ADMINISTRATIVE AGENT IN COURT AS A WRITTEN
CONSENT TO A NON-JURY TRIAL.
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(4) Guarantor does hereby further covenant and agree to and with the
Administrative Agent that Guarantor may be joined in any action against 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 Administrative Agent first
pursuing or exhausting any remedy or claim against Borrower or 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 Administrative Agent (wherever brought)
against 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.
(5) Guarantor agrees to pay all reasonable expenses (including,
without limitation, attorneys' fees and disbursements) which may be incurred by
the Administrative Agent or the Banks in connection with the enforcement of
their rights under this Guaranty, whether or not suit is initiated.
XXI. Notwithstanding anything to the contrary contained herein, this
Guaranty shall terminate and be of no further force or effect upon the full
performance and payment of the Guaranteed Obligations hereunder, subject to the
provisions of Section 6 hereof. Upon termination of this Guaranty in accordance
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with the terms of this Guaranty, the Administrative Agent promptly shall deliver
to Guarantor such documents as Guarantor or Guarantor's counsel reasonably may
request in order to evidence such termination.
XXII. All of the Administrative Agent's 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 Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Guaranty of Payment as of the date and year first above written.
GUARANTOR:
▇▇▇▇▇▇ REALTY CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Corporate Finance
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
and Treasurer
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ACCEPTED:
JPMORGAN CHASE BANK,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
ACKNOWLEDGMENTS FOR GUARANTOR
-----------------------------
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On March 13, 2002, before me personally came ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, to me
known to be the person who executed the foregoing instrument, and who, being
duly sworn by me, did depose and say that he is Vice President of ▇▇▇▇▇▇ Realty
Corporation, and that he executed the foregoing instrument in the organization's
name, and that he had authority to sign the same, and he acknowledged to me that
he executed the same as the act and deed of said organization for the uses and
purposes therein mentioned.
[Seal]
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Notary Public
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On March 13, 2002, before me personally came ▇▇▇▇▇ ▇. ▇▇▇▇, to me
known to be the person who executed the foregoing instrument, and who, being
duly sworn by me, did depose and say that he is Senior Vice President and
Treasurer of ▇▇▇▇▇▇ Realty Corporation, and that he executed the foregoing
instrument in the organization's name, and that he had authority to sign the
same, and he acknowledged to me that he executed the same as the act and deed of
said organization for the uses and purposes therein mentioned.
[Seal]
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Notary Public