COLLATERALISED GUARANTEE
TO: ▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("MLI")
For the Attention of: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
P.O. Box 293
London, EC1M 3NH
1 Guarantee
In consideration of MLI entering into a facilities agreement
(as amended and supplemented from time to time, the
"Facilities Agreement", which shall include each transaction
entered into and each document issued or given pursuant to the
Facilities Agreement) constituted by a Terms Sheet and a
letter dated 17 November 1999 from MLI to Commonwealth
Atlantic Properties Investors Trust, Prometheus Investment
Holding Corp. and Prometheus Western Retail, LLC (collectively
the "Customer") c/o Lazard Freres Real Estate Investors
L.L.C., ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇,
▇▇▇, as amended by First Amendment to Facility Letter dated
17 November 1999, and of MLI entering into a custodian
agreement with Prometheus Investment Holding Corp., LF
Strategic Realty Investors L.P. and Prometheus AAPT Holdings,
L.L.C. (as amended and supplemented from time to time, the
"Custodian Agreement" and, together with the Facilities
Agreement, the "Agreements") dated 17 November 1999, and of
MLI making available to the Customer the facilities and
services provided for in the Agreements, we, LF Strategic
Realty Investors L.P., a Delaware limited partnership and
Prometheus AAPT Holdings, L.L.C., a Delaware limited liability
company (collectively, the "Guarantor"), having our principal
place of business c/o Lazard Freres Real Estate Investors
L.L.C., ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇
hereby unconditionally and irrevocably:
1.1 guarantee that, if for any reason the Customer does not
pay any sum payable by it under the Agreements by the
time, on the date and otherwise in the manner required by
the Agreements, whether on the normal due date, on
acceleration or otherwise (together the "Guaranteed
Liabilities"), the Guarantor will pay that Guaranteed
Liability on demand by MLI and
1.2 as separate, independent and alternative stipulations,
agree:
1.2.1 that any Guaranteed Liability which, although
expressed to be payable by the Customer under
the Agreements, is for any reason (whether or
not now existing and whether or not now known
or becoming known to MLI) not recoverable from
the Guarantor on the basis of a guarantee shall
nevertheless be recoverable from it as if it
were the sole principal debtor and shall be
paid by it to MLI on demand and
1.2.2 as a primary obligation to indemnify MLI
against any loss suffered by it as a result of
any Guaranteed Liability expressed to be
payable by the Customer under the Agreements
not being paid by the time, on the date and
otherwise in the manner required by the
Agreements or any Guaranteed Liability being or
becoming void, voidable or unenforceable for
any reason (whether or not now existing and
whether or not now known or becoming known to
MLI), the amount of that loss being the amount
expressed to be payable by the Customer in
respect of the relevant Guaranteed Liability.
2 Security Provisions
2.1 The Guarantor, as continuing security for the due payment
of the Guaranteed Liabilities and with full title
guarantee, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby
acknowledged, hereby irrevocably pledges, grants and
creates a first priority lien on, and security interest
in favour of MLI all the Guarantor's right, title and
interest in and to all Securities, and all related
documents, from time to time held by or for the account
or to the order of MLI (whether in its capacity as
Custodian or otherwise) or in or credited to the
Guarantor Collateral Account and the claims represented
thereby (together, the "Guarantor Pledged Securities").
The security created by or pursuant to this Guarantee
shall affect and include all dividends, distributions and
interest on and other proceeds of the Guarantor Pledged
Securities or other property hereby pledged or charged,
whether capital or income, and all property distributed,
paid, accruing or offered at any time on, to, in respect
of or in substitution for, any of the Guarantor Pledged
Securities or other property hereby pledged or charged,
in each case only to the extent that any of the foregoing
are paid or delivered to MLI for credit to the Guarantor
Collateral Account.
2.2 The Guarantor, as continuing security for the due payment
of the Guaranteed Liabilities and with full title
guarantee, and for other good and valuable
consideration, the receipt and sufficiency of which is
hereby acknowledged, hereby irrevocably pledges, grants
and creates a first priority lien on, and security
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interest in favour of MLI all monies and investment
property (and all the Guarantor's right, title and
interest in and to such monies and the debt represented
thereby and investment property) from time to time
standing to the credit of the Guarantor Collateral
Account, in whatever currency, and including any interest
accrued or accruing thereon.
2.3 None of the monies from time to time standing to the
credit of the Guarantor Collateral Account (nor the
Guarantor's right, title and interest in and to such
monies) shall, during the continuance of the Facilities
and until the Secured Liabilities (other than the
Contingent Liabilities) have been duly and properly paid
in full, be capable of being withdrawn, assigned or
otherwise disposed of or encumbered except with MLI's
prior written consent or as otherwise specifically
provided in this Guarantee. Any such consent of MLI (and
any payment whether with or without such consent) shall
operate as a release of the relevant monies and the
provisions of this Guarantee shall continue to apply to
the Guarantor Collateral Account and the monies from time
to time standing to the credit thereof.
2.4 The Guarantor hereby undertakes to MLI for itself that,
at all times during the continuance of the Facilities and
until the Secured Liabilities (other than the Contingent
Liabilities) have been properly and duly paid in full:
2.4.1 it will on demand duly pay any calls,
subscription monies and/or other monies payable
on or in respect of any of the Guarantor
Pledged Securities. If it does not do so, MLI
may (but shall not be obliged to) do so and, if
MLI does so, the Guarantor shall on demand
indemnify MLI against such payment and
2.4.2 it will not (nor will it agree, conditionally
or unconditionally, to) create or have
outstanding any call option, pledge,
assignment, transfer, hypothecation, mortgage,
charge, claim or similar encumbrance, security
interest or lien on or affecting any of the
Guarantor Pledged Securities (except as
contemplated by this Guarantee or with MLI's
prior written consent).
MLI acknowledges that the Guarantor may request consent
to options, assignments and transfers (including
agreements therefor) on or of Guarantor Pledged
Securities in the normal course of its trading operations
and MLI will consider any such request in good faith.
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2.5 Without prejudice to Clause 2.3 or 4.2, MLI is authorised
to debit the Guaranteed Liabilities to any account of the
Guarantor with MLI and MLI is authorised to combine or
consolidate such account with the Guarantor Collateral
Account and/or set off, transfer or apply any monies
standing to the credit of the Guarantor Collateral
Account in or towards satisfaction of any of the
Guaranteed Liabilities.
2.6 The security created by or pursuant to this Guarantee
shall be a continuing security notwithstanding any
intermediate payment or settlement of account and,
without prejudice to the generality of the foregoing,
shall continue in full force and effect until MLI
reassigns or executes a formal release with respect to
such security, which it may do in whole or from time to
time in part, and any withdrawal or other disposal of any
of the property subject to the security created by or
pursuant to this Guarantee shall operate as a release of
such property, and the provisions of this Guarantee shall
continue to apply to the remainder thereof. The security
created by or pursuant to this Guarantee shall be in
addition to and shall not prejudice any other security,
guarantee, indemnity, right or remedy of whatever nature
which MLI may now or at any time have in respect of any
of the Guaranteed Liabilities. Upon receipt from the
Guarantor of a request made after termination of the
Facilities and payment in full of all the Secured
Liabilities (other than the Contingent Liabilities), MLI
shall at the expense of the Guarantor reassign to the
Guarantor so much (if any) of the Guarantor Pledged
Securities as then remains and/or execute a formal
release with respect thereto.
2.7 In this Guarantee:
"Custodian" means MLI in its capacity as such under the
Custodian Agreement.
"Guarantor Collateral" means all Securities, including
any certificates and documents of or evidencing title to
the same (and the claim represented thereby), and cash
balances (and the debt represented thereby) in or
credited to the Guarantor Collateral Account all right,
title and interest in and to which are, to the
satisfaction of MLI, subject to the security created by
or pursuant to this Guarantee.
"Guarantor Collateral Account" means the one or more
accounts, having such designations as MLI may determine,
opened or to be opened by MLI pursuant to, or used for
the purposes of, this Guarantee for the Guarantor with
the Custodian or any other person (including MLIB or any
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other member of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group) chosen by MLI in
respect of Guarantor Collateral, all such Guarantor
Collateral Accounts to be maintained under the complete
discretion of MLI or such other person in each case
pursuant to the Custodian Agreement.
Headings shall be ignored in construing this Guarantee.
2.8 MLI shall have all rights and remedies as a secured party
at law or in equity including, without limitation, the
rights of a secured party under the Uniform Commercial
Code.
3 Guarantor Collateral
3.1 The Guarantor, at its own expense, will execute or cause
to be executed all such documents, and will do or cause
to be done all such things, which are reasonably
requested by MLI (1) to enable MLI to enjoy, exercise or
enforce its rights as a secured party under this
Guarantee and (2) to evidence, and to establish and
maintain the perfection and first priority of, MLI's
security interest in the Guarantor Pledged Securities and
the Guarantor Collateral Account (and the monies for the
time being standing to the credit thereof and the debt
represented thereby) and the perfection of MLI's security
interest in the other property hereby pledged or charged.
Without limiting the generality of the foregoing, the
Guarantor, at its own expense, will execute and give or
file, or both, all notices and documents (including, but
not limited to, notice of the security created by or
pursuant to this Guarantee) in such manner, to such
persons and at such places as may be reasonably requested
by MLI to establish and maintain the perfection and, as
appropriate, first priority of MLI's said security
interest. The Guarantor irrevocably and by way of
security authorises MLI, if the Guarantor does not do so,
to take any step contemplated by this Clause 3.1 (but MLI
shall have no obligation to do so).
3.2 Except as otherwise agreed by the Guarantor and MLI, MLI
shall at all times while any Guarantor Collateral remains
credited to the Guarantor Collateral Account use
reasonable care in connection therewith but shall not
thereby be responsible for the value of the Guarantor
Collateral or the other property hereby pledged or
charged or, except to the extent otherwise specifically
agreed, for the collection or payment of any dividends,
distributions, interest or other receipts in respect of
Guarantor Pledged Securities or other property hereby
pledged or charged nor to ensure the taking up of any
securities, rights, monies or other property distributed,
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paid, accruing or offered at any time on, to, in respect
of or in substitution for any of the Guarantor Collateral
or other property hereby pledged or charged.
3.3 [Intentionally omitted.]
3.4 Until such time as an Event of Default as set out in
Clause 10 of the Facility Agreement (each an "Event of
Default") occurs, and without prejudice to any other
requirements of MLI, the Guarantor may at any time
request MLI to release and reconvey to the Guarantor (or
as it may direct) the BDN Collateral Securities (as
defined in the Letter) upon a reduction of the Total
Amount Available (as defined in the Letter) by
$25,000,000, and MLI will give effect to such request.
Upon release of the BDN Collateral Securities, the
Maintenance Margin (as defined in the Letter) shall be
reset to 85%.
4 Enforcement
If the Guarantor fails or is unable to MLI's satisfaction duly
to comply with any demand under Clause 1:
4.1 MLI may at any time thereafter, without notice to the
Guarantor and without prejudice to any other right or
remedy, dispose or procure the disposal, by sale or
otherwise, of all or from time to time part of the
Guarantor Pledged Securities or other property hereby
pledged or charged or otherwise realise or procure the
realisation of the same, in such manner and at such price
or prices (whether payable or deliverable immediately, on
a deferred basis or by instalments) without being
responsible for any loss or diminution in price, as it
may think fit, close out or liquidate any option, future,
long position or short position which the Guarantor may
have (by sale, purchase or otherwise howsoever), take
possession of all or from time to time of part of the
Guarantor Pledged Securities or other property hereby
pledged or charged and proceed forthwith to sell, assign,
give options to purchase, contract to sell or otherwise
dispose of and deliver the Guarantor Pledged Securities
or other property hereby pledged or charged or any part
thereof in one or more parts at public or private sale at
any exchange, broker's board or at any of MLI's offices
or elsewhere at such prices and on such terms as MLI
deems appropriate, all without demand for performance,
advertisement or other notice of any kind, and apply the
proceeds thereof and all cash balances in the Guarantor
Collateral Account or otherwise hereby pledged or charged
(together, the "Guarantor Proceeds") as follows:
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4.1.1 first, in or towards payment of all amounts
(including costs, expenses, commissions and
taxes) arising as a result thereof
4.1.2 secondly, in or towards payment and
satisfaction of the Guaranteed Liabilities in
such order and manner as MLI may determine
4.1.3 thirdly, in payment of any surplus to the
Guarantor or other person entitled thereto.
Provided always that MLI shall not be obliged to apply
any part of such proceeds in accordance with sub-clause
4.1.3 until all the Secured Liabilities (other than the
Contingent Liabilities) have been discharged to the
satisfaction of MLI and until after each of them has
exercised all set-offs and other rights which it is
expressed to be entitled to make or exercise under this
Guarantee and/or the Facilities Agreement. Until such
time the proceeds shall be held in or credited to the
Guarantor Collateral Account or such other account with
MLI as MLI may (in its absolute discretion) decide.
Upon disposal of any Guarantor Pledged Securities or
other property hereby pledged or charged made or
purported to be made under the provisions of this Clause,
a certificate of any officer or employee of MLI that a
default has occurred and that the power of disposal has
become exercisable shall be conclusive evidence of that
fact in favour of any purchaser or other person to whom
any of the Guarantor Pledged Securities or other property
hereby pledged or charged may be transferred under such
disposal and the Guarantor agrees to indemnify MLI (on a
full indemnity basis) against any claim which may be made
against it by such purchaser or person by reason of any
defect in title to such Guarantor Pledged Securities or
other property hereby pledged or charged unless such
claim has arisen as a result of the negligence or wilful
misconduct of MLI.
4.2 In addition to any general lien, right to combine or
consolidate accounts, set-off or similar right to which
it may be entitled at law, by contract, or otherwise, MLI
may at any time, without notice to the Guarantor, debit
any of the Guaranteed Liabilities to any account of the
Guarantor with it (including without limitation the
Guarantor Collateral Account) and combine or consolidate
all or any one or more of the Guarantor's then existing
accounts (including without limitation the Guarantor
Collateral Account) with, and liabilities of the
Guarantor to, it and/or set off, transfer or apply any
sum(s) standing to the credit of any one or more of the
Guarantor's accounts with it (including without
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limitation the Guarantor Collateral Account) in or
towards satisfaction of any of the liabilities of the
Guarantor to MLI, whether present or future, actual or
contingent.
4.3 MLI may do all such other acts and things as it may
consider necessary or desirable in connection with the
realisation of the security created by or pursuant to
this Guarantee.
MLI shall have authority to purchase one currency with
another for purposes of this Clause 4.
5 Guarantor as Principal Debtor
As between the Guarantor and MLI but without affecting the
Customer's obligations, the Guarantor shall be liable under
this Guarantee as if it were the sole principal debtor and not
merely a surety. Accordingly, it shall not be discharged, nor
shall its liability be affected, by anything which would not
discharge it or affect its liability if it were the sole
principal debtor (including (1) any time, indulgence,
concession, waiver or consent at any time given to the
Customer or any other person, (2) any amendment or supplement
to the Agreements or to any other security or guarantee, (3)
the making or absence of any demand on the Customer or any
other person for payment, (4) the enforcement or absence of
enforcement of the Agreements or of any other security or
guarantee, (5) the taking, existence or release of any other
security or guarantee, (6) the winding-up or dissolution of
the Customer or any other person or (7) the illegality,
invalidity or unenforceability of or any defect in any
provision of the Agreements or any of the Customer's
obligations under them).
6 Guarantee Continuing
The Guarantor's obligations under this Guarantee are and will
remain in full force and effect by way of continuing security
until the Facilities have terminated and MLI has irrevocably
received or recovered all sums payable under the Agreements.
Furthermore, those obligations of the Guarantor are additional
to, and not instead of, any other security or guarantee at any
time existing in favour of MLI, whether from the Guarantor or
otherwise, and may be enforced without first having recourse
to the Customer, any other person or any other security or
guarantee. The Guarantor irrevocably waives all notices and
(except as required by Clause 1) demands of any kind.
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7 Accounts
If this Guarantee ceases for any reason to be binding on the
Guarantor as a continuing security in relation to the
Customer, or if MLI becomes aware of any other mortgage,
charge, pledge, lien or other encumbrance or security of any
kind on or over the Guarantor Collateral or any part thereof,
then MLI may break any account or accounts of the Customer
with it and open a new account for the Customer. If that is
done, no monies then or subsequently credited to such new
account shall have the effect of reducing the amount due to
MLI on the original account. If that is not done, MLI shall
still be treated as if it had done so at the time of such
cessation or, as the case may be, of the creation of the other
mortgage, charge, pledge, lien or other encumbrance or
security, and as if all payments then or subsequently made by
or on behalf of the Customer to it had been credited to such
new account with the same result.
8 Exercise of Guarantor's Rights
Until such time as the Facilities are terminated and all the
Secured Liabilities (other than the Contingent Liabilities)
have been paid in full:
8.1 any right of the Guarantor, by reason of the performance
of any of its obligations under this Guarantee, to be
indemnified by the Customer or to take the benefit of or
enforce any other security or guarantee shall be
exercised and enforced only in such manner and on such
terms as MLI may reasonably require to ensure
satisfaction of the Customer's obligation to MLI; and
8.2 any amount received or recovered by the Guarantor (a) as
a result of any exercise of any such right or (b) in the
winding-up or dissolution of the Customer shall be held
in trust for MLI and immediately paid to MLI.
9 Avoidance of Payments
The Guarantor shall on demand by MLI indemnify MLI against any
funding or other cost, loss, expense or liability sustained or
incurred by it as a result of its being required for any
reason (including any bankruptcy, insolvency, winding-up,
dissolution or similar law of any jurisdiction) to refund all
or part of any amount received or recovered by it in respect
of any Guaranteed Liability and shall in any event pay to it
on demand by MLI the amount so refunded by it.
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10 Suspense Accounts
For the purpose of enabling MLI to maximise its recoveries in
any actual or potential winding-up or dissolution, any amount
received or recovered by MLI (otherwise than as a result of a
payment to it by the Customer) in respect of any Guaranteed
Liability may be placed by the recipient in a suspense
account. That amount may be kept there unless and until MLI is
satisfied that it is not obliged to pay any further sums under
the Agreements and that it has irrevocably received or
recovered all sums payable to it under the Agreements.
11 Certificates Conclusive
The certificate of an officer or employee of MLI as to the
calculation any amount payable to MLI under the terms of this
Guarantee shall, save for manifest error, be final, conclusive
and binding on the Guarantor.
12 Payments, Taxes
All payments by the Guarantor shall be made free and clear of
any restrictions or conditions, without set-off or
counterclaim, and free and clear of, and (subject as
hereinafter provided) without deduction for, any taxes,
deductions or withholdings of any nature. If any deduction or
withholding on account of any such tax or other amount is
required by law to be made from any payment, the Guarantor
shall pay in the same manner and at the same time such
additional amounts as will result in receipt by MLI, free from
any liability in respect of any such deduction or withholding,
of such amount as would have been received by it had no such
deduction or withholding been required to be made.
Notwithstanding the foregoing, Guarantor shall not be
obligated to pay income or "doing business" taxes imposed upon
MLI.
13 Currency
The Guarantor shall pay all amounts hereby guaranteed to such
account as MLI may notify to the Guarantor and in the same
currency and funds as such amounts are payable by the Customer
under the Agreements (the "Currency of Account"). Any amount
received or recovered by MLI in a currency other than the
appropriate Currency of Account (whether as a result of, or of
the enforcement of, a judgment or order of any court of any
jurisdiction, in the winding-up or dissolution of the
Customer, the Guarantor, or otherwise) in respect of any sum
due to it from the Guarantor under this Guarantee shall only
constitute a discharge to the Guarantor to the extent of the
amount in that Currency of Account which MLI is able, in
accordance with its usual practice, to purchase with the
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amount so received or recovered in that other currency on the
date of that receipt or recovery (or, if it is not practicable
to make that purchase on that date, on the first date on which
it is practicable to do so). If that amount in that Currency
of Account is less than the amount expressed to be due to MLI
under this Guarantee, the Guarantor shall indemnify it against
any loss sustained by it as a result. In any event, the
Guarantor shall indemnify it against the cost of making any
such purchase.
14 Representations and Warranties
The Guarantor represents and warrants to and for the benefit
of MLI that:
14.1 it is a limited liability company or limited partnership
duly organised or incorporated and validly existing under
the laws of the jurisdiction of its establishment and has
the power and authority to own its assets and to conduct
the business which it conducts
14.2 its entry into and/or performance of or compliance with
its obligations under this Guarantee do not and will not
violate or exceed any guaranteeing, charging or other
powers or restrictions granted or imposed under any law
to which it is subject, its constitutional documents or
any agreement to which it is a party or which is binding
on it or its assets
14.3 all acts, conditions and things required to be done,
fulfilled and performed in order to enable it lawfully to
execute and perform its obligations under this Guarantee
and to ensure that its obligations are legal, valid and
binding have been done, fulfilled and performed
14.4 it has the power to enter into and perform and comply
with its obligations under this Guarantee and has taken
all necessary action to authorise such execution and
performance
14.5 it will obtain and maintain in effect and comply with the
terms of all necessary consents, registrations and the
like of or with any governmental or other regulatory body
or authority applicable to this Guarantee (other than any
"doing business" consents, registrations and the like
which MLI is required by applicable law to obtain or
maintain)
14.6 its obligations under this Guarantee are binding and
enforceable at law
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14.7 it is not in default under any agreement to which it is a
party or by which it or its assets is or are bound and no
litigation, arbitration or administrative proceedings are
current or pending, which default, litigation,
arbitration or administrative proceedings are material in
the context of this Guarantee
14.8 it is not necessary or advisable in order to ensure the
validity, effectiveness, performance or enforceability of
this Guarantee or the perfection of the security created
by or pursuant to this Guarantee that any document be
filed, registered or recorded in any public office or
elsewhere that has not already been filed, registered or
recorded
14.9 except by this Guarantee, it has not assigned,
transferred or otherwise disposed of the Guarantor
Collateral it owns (or its rights, title and interest to
and in the Guarantor Collateral), either in whole or in
part, nor agreed to do so, and will not at any time do so
or agree to do so, and it will at all times be the sole
beneficial owner of and fully guarantee title to all
Guarantor Collateral which is now owned by it or may at
any time hereafter become subject to the security created
by or pursuant to this Guarantee
14.10 except for the security created by or pursuant to
this Guarantee, no mortgage, charge, pledge, lien,
claim or other similar encumbrance or security of
any kind exists on or over the Guarantor Collateral
(or its right, title and interest in and to the
Guarantor Collateral), either in whole or in part,
nor has it agreed to create any such other security
nor will it at any time do so or agree to do so and
14.11 each of the above representations and warranties
will be correct and complied with in all respects
during the continuance of the Facilities and so long
as any sum remains payable under the Agreements, as
if repeated then by reference to the then existing
circumstances.
15 Information
Until such time as the Facilities have been terminated and all
the Secured Liabilities (other than the Contingent
Liabilities) have been paid in full, the Guarantor shall
furnish to MLI such financial and other information as to its
affairs and, as the case may be, its subsidiaries as MLI may
reasonably request from time to time.
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16 Intentionally Omitted.
17 Assignments
MLI may at any time assign all or part of its rights under
this Guarantee to any other member of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group
or, with the prior written consent of Guarantor (such consent
not to be unreasonably withheld), to any other person which is
the holder of the Facilities. MLI shall after any such
assignment and to the extent (if at all) appropriate or
required hold the security created by or pursuant to this
Guarantee for itself and each assignee. Any reference in this
Guarantee to MLI shall be construed accordingly and shall also
include its successors. Any such assignee shall be entitled to
the full benefit of this Guarantee to the same extent as if it
were an original party in respect of the rights assigned to
it. MLI may disclose to any other member of the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Group or, subject to prior notice to Guarantor, any potential
assignee or any other person who has entered or proposes to
enter into contractual arrangements with it in relation to or
concerning the Agreements or this Guarantee such information
about the Customer, the Guarantor, the Agreements and this
Guarantee as it may think fit.
18 Intentionally Omitted.
19 The Agreements
19.1 Terms defined in the Agreements (and not defined in this
Guarantee) shall have the same meanings in this
Guarantee.
19.2 This Guarantee is a Performance Assurance Agreement for
the purposes of the Facilities Agreement.
20 Parties
This Guarantee shall not be discharged nor shall the liability
of the Guarantor be affected by any amalgamation or merger of
MLI or the Guarantor with any other company, or any
reconstruction or change in the constitution of MLI or the
Guarantor, or any change in the name, style or constitution of
MLI or the Guarantor or, as the case may be, in the persons
who from time to time constitute the general and/or limited
partners in the Guarantor, and this Guarantee shall be binding
on the Guarantor and on all such persons.
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21 Communications
Any demand or other notice under this Guarantee shall be made
in writing by MLI acting by one of its officers or employees
and may be sent by post or hand delivered to the address of
the Guarantor specified below, or sent by facsimile to the
facsimile number specified below, or in each case to such
other address and/or facsimile number as the Guarantor has
from time to time notified to MLI in writing. Notices shall be
deemed to have been received two days after being deposited
for overnight delivery with any reputable overnight courier
service and immediately in the case of hand delivered or
facsimile communication.
22 Remedies and Waivers
No failure by MLI to exercise, and no delay by MLI in
exercising, any right or remedy will operate as a waiver
thereof, nor will any single or partial exercise of any such
right or remedy preclude any other or further exercise thereof
or the exercise of any other right or remedy. The authority to
debit, charge and pledge and the right of set-off and other
rights and remedies provided in this Guarantee are separate,
independent and cumulative and not exclusive of any rights or
remedies (including any other security, right of set-off,
lien, right to combine or consolidate accounts or similar
right) to which MLI is at any time entitled anywhere, whether
by operation of law or otherwise.
23 Partial Invalidity
If at any time any provision of this Guarantee is or becomes
illegal, invalid or unenforceable in any respect under the law
of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of this Guarantee,
nor the legality, validity or enforceability of such
provisions under the law of any other jurisdiction shall in
any way be affected or impaired thereby. If and to the extent
that the security expressed to be created by or pursuant to
this Guarantee is at any time and for any reason not effective
as a fixed charge, it shall instead take effect as a floating
charge.
24 Counterpart Execution
This Guarantee may be executed in any number of counterparts,
all of which taken together shall constitute one and the same
instrument.
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25 Governing Law
This Guarantee (except as hereinafter set forth) shall be
governed by and construed in accordance with English Law.
Section 2 of this Guaranty and the provisions regarding the
creation, perfection, priority and enforcement of the lien of
this Agreement, and the determination of deficiency judgments,
shall be governed by the laws of New York State.
26 Proceedings
In relation to any legal action or proceedings arising out of
or in connection with this Guarantee ("Proceedings") the
Guarantor, for the benefit of MLI, irrevocably submits to the
jurisdiction of the courts of England and any New York State
or United States Federal court sitting in New York City, and
waives any objection to Proceedings in such courts on the
grounds of venue or on the grounds that the Proceedings have
been brought in an inconvenient forum. Those submissions shall
not affect MLI's right to take Proceedings in any other court
of competent jurisdiction, nor shall the taking of Proceedings
in any court of competent jurisdiction preclude MLI from
taking Proceedings in any other court of competent
jurisdiction (whether concurrently or not).
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director of Equity Markets
Global Equity Finance
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
P.O. Box 293
London
EC1M 3NH
Attention: International Prime Brokerage
Fax No: 44 17l ▇▇▇ ▇▇▇▇
Telephone: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
15
LF Strategic Realty Investors L.P.,
a Delaware limited liability company
c/o Lazard Freres Real Estate Investors, L.L.C.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By: Lazard Freres Real Estate Investors L.L.C., a
New York limited liability company, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal & Chief Financial Officer
16
Prometheus AAPT Holdings, L.L.C.
a Delaware limited liability company
c/o Lazard Freres Real Estate Investors L.L.C.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By: LF Strategic Realty Investors L.P.
a Delaware limited partnership, its managing member
By: Lazard Freres Real Estate Investors L.L.C.,
a New York limited liability company,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal & Chief Executive Officer
17