Exhibit 4.3
GUARANTY
(CRC-II Limited Partnership)
This Guaranty ("Guaranty") is entered into as of December 15,
1993 by the undersigned (the "Guarantor") in favor of and for the benefit of
State Street Bank and Trust Company, as trustee (the "Indenture Trustee") and
the holders of the Issuer Notes (the "Noteholders") under that certain
Indenture described in the recitals below. The Indenture Trustee and the
Noteholders are referred to collectively herein as the "Beneficiaries." All
capitalized terms used herein but not specifically defined shall have the
respective meanings given to such terms in the Indenture.
RECITALS
A. FM 1993A Corp., a Delaware corporation ("Issuer") is a
corporation which has been established for the sole purpose of issuing
certain notes (the "Issuer Notes") pursuant to that certain Indenture (the
"Indenture"), dated as of December 15, 1993, between Issuer and the Indenture
Trustee, and to use the proceeds from such issuance of the Issuer Notes to,
among other things, purchase certain promissory notes (collectively, the
"Mortgage Notes") now or hereafter issued by Guarantor and CRC-I Limited
Partnership, a Massachusetts limited partnership ("CRC-I") pursuant to Note
Purchase Agreements between Issuer and Guarantor and between Issuer and CRC-
I. Guarantor and CRC-I are also referred to herein individually as a "CRC
Partnership" and collectively as the "CRC Partnerships."
B. Concurrently with the execution and delivery of this
Guaranty, Issuer has issued and sold the Issuer Notes and has pledged and
assigned to the Indenture Trustee, for the benefit of the Noteholders, the
Mortgage Notes and all collateral pledged to Issuer in connection with the
Mortgage Notes. The principal and interest payments on the Issuer Notes will
be serviced by payment of the Mortgage Notes.
C. Guarantor anticipates benefiting directly and indirectly
from the issuance and sale of the Issuer Notes by Issuer and is, therefore,
willing to guarantee the obligations of Issuer thereunder in accordance with
the terms hereof.
In consideration of the above Recitals and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Guaranty of Indebtedness. As set forth in this
Guaranty, Guarantor unconditionally guarantees the full payment of the
Indebtedness (as hereafter defined) when due, upon maturity, acceleration or
otherwise, and unconditionally agrees to pay the full amount of the
Indebtedness. This is a guaranty of payment, not of
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collection. If Issuer defaults in the payment when due of the Indebtedness
or any part of it, Guarantor shall in lawful money of the United States pay
to the Beneficiaries or to order, on demand, all of the Indebtedness.
2. Definition of Indebtedness. "Indebtedness" as used
herein shall mean all principal, interest, fees, charges, prepayment
premiums, penalties, expenses, payments, and all other amounts due from
Issuer from time to time under the Indenture on or with respect to the Issuer
Notes, whether now existing or hereafter arising, whether by reason of
amendment or otherwise, whether due or to become due, absolute or contingent,
liquidated or unliquidated, whether Guarantor may be liable individually or
jointly with others.
3. Unconditional Guaranty. Subject to the conditions set
forth in Section 13 of this Guaranty, the liability of Guarantor under this
Guaranty in respect of the Indebtedness shall be absolute and unconditional,
and shall not be affected or released in any way, irrespective of:
a. any lack of validity or enforceability of the
Issuer Notes, the Mortgage Notes, the Indenture, or any other agreement or
instrument relating thereto (such documents and instruments, the "Transaction
Documents");
b. any change in the time, manner or place of payment
of, or in any other term of, all or any of the Indebtedness or amendment or
waiver of, or any consent to any departure from, any Transaction Document,
including, without limitation, any increase in the Indebtedness or other
obligations of Issuer under the Indenture and any transfer by Guarantor of
its interest in any one or more of the Properties encumbered as collateral
for the Mortgage Notes;
c. any enforcement of any Transaction Document,
including the taking, holding or sale of any collateral, or any termination
of or release of any collateral from the liens created by any Transaction
Document or the non-perfection of any liens created by any Transaction
Document;
d. any change, restructuring or termination of the
corporate or partnership structure or existence, as the case may be, of
Issuer or either CRC Partnership; or
e. the Issuer or either CRC Partnership becoming the
subject of any bankruptcy, insolvency, arrangement, reorganization, or other
debtor-relief proceeding under any federal or state law, whether now existing
or later to be enacted.
4. Separate Obligation. Except to the extent provided in
Section 13 of this Guaranty, the obligations hereunder are independent of the
obligations of Issuer or any other guarantor, and a separate
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action or actions may be brought and prosecuted against Guarantor whether
action is brought against either Issuer or any other guarantor or whether
either Issuer or any other guarantor be joined in any such action or actions.
5. Additional Rights of Beneficiaries. Guarantor
authorizes the Beneficiaries without notice or demand and without affecting
its liability hereunder, from time to time, whether before or after
termination of this Guaranty, to (a) renew, compromise, extend, accelerate or
otherwise change the time for payment of the obligations of Issuer under the
Indenture or any part thereof; (b) take and hold security for the payment of
this Guaranty or the Indebtedness, and exchange, enforce, waive, release,
fail to perfect, sell, or otherwise dispose of any such security; (c) apply
such security and direct the order or manner of sale thereof; and (d) release
or substitute any one or more endorsers or guarantors.
6. Waivers of Defenses. Guarantor hereby waives, to the
fullest extent permitted by applicable law: (a) promptness, diligence, notice
of acceptance and any other notice with respect to any of the Indebtedness or
any other obligations under the Transaction Documents or this Guaranty;
(b) any requirement that any of the Beneficiaries or any other person
protect, secure or insure any lien on any security interest in or collateral
or other property subject thereto or exhaust any right or take any action
against either Issuer or any other person or any collateral or pursue any
other remedy in such Beneficiary's power to pursue; (c) any defense arising
by reason of any claim or defense based upon any election of remedies by the
Beneficiaries which in any manner impairs, reduces, releases or otherwise
adversely affects its subrogation, contribution or reimbursement rights or
other rights to proceed against either Issuer or any other person or any
collateral; (d) any duty on the part of any of the Beneficiaries to disclose
to Guarantor any matter, fact or thing relating to the business, operation or
condition of either Issuer or any other party to any of the Transaction
Documents and Issuer's assets now known or hereafter known by such
Beneficiary; (e) all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, and
notices of acceptance of this Guaranty and of the existence, creation, or
incurrence of new or additional Indebtedness; (f) all statutes of limitations
as a defense to any action or proceeding brought against Guarantor by any
Beneficiary; (g) any defense based on any legal disability of Issuer, any
discharge or limitation of the liability of Issuer to any Beneficiary,
whether consensual or arising by operation of law or any bankruptcy,
reorganization, receivership, insolvency, or debtor-relief proceeding, or
from any other cause, or any claim that Guarantor's obligations exceed or are
more burdensome than those of Issuer; (h) any defense based on or arising out
of any defense that Issuer may have to the payment or performance under the
Issuer Notes or the Indenture or any part of them; and (i) all rights to
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participate in any security now or later held by any Beneficiary for the
Issuer Notes, regardless of whether Guarantor may have made any payments to
such Beneficiary or for such security.
7. Waivers of Subrogation and Other Rights.
a. Guarantor hereby irrevocably waives any claim or
other rights which it may now or hereafter acquire against either Issuer or
any other guarantor of any or all of the Indebtedness, whether due or to
become due, voluntary or involuntary, absolute or contingent, liquidated or
unliquidated, determined or undetermined, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy of any
Beneficiary against either Issuer or any such guarantor or any collateral
which any Beneficiary now has or hereafter acquires, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including without limitation, the right to take or receive from Issuer,
directly or indirectly, in cash or other property or by set-off or in any
other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to Guarantor in violation of the preceding
sentence and the Indebtedness shall not have been paid in full, such amount
shall be deemed to have been paid to Guarantor for the benefit of, and held
in trust for the benefit of, the Beneficiaries and shall forthwith be paid to
the Beneficiaries to be credited and applied to the Indebtedness, whether
matured or unmatured, in accordance with the terms of the Indenture.
Guarantor acknowledges that it will receive direct and indirect benefits from
the sale of the Issuer Notes contemplated by the Indenture and that the
waiver set forth in this Section 7 is knowingly made in contemplation of such
benefits.
b. Upon a default by Issuer, the Beneficiaries in
their sole discretion, without prior notice to or consent of Guarantor, and
as provided in the Indenture, may elect to foreclose either judicially or
nonjudicially against any real or personal property security any of them may
hold for the Issuer Notes, or accept an assignment of any such security in
lieu of foreclosure, or compromise or adjust the Issuer Notes or any of them
or make any other accommodation with Issuer, Guarantor or any other guarantor
of the Indebtedness, or exercise any other remedy against Issuer or any
security. No such action by the Beneficiaries shall release or limit the
liability of Guarantor, who shall remain liable under this Guaranty after the
action, even if the effect of the action is to impair or destroy any ability
that Guarantor may have to seek reimbursement, contribution or
indemnification from Issuer or others based on any right Guarantor may have
of subrogation, reimbursement, contribution, or indemnification for any
amounts paid by Guarantor under this Guaranty. Guarantor further understands
and acknowledges that in the absence of this waiver, such potential
impairment or destruction of Guarantor's rights, if any, may entitle
Guarantor to assert certain defenses to this Guaranty and that, by executing
this Guaranty, Guarantor freely, irrevocably and
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unconditionally: (i) waives and relinquishes that defense and agrees that
Guarantor will be fully liable under this Guaranty even though the
Beneficiaries may foreclose judicially or nonjudicially against any real
property security for the Notes; (ii) agrees that Guarantor will not assert
that defense in any action or proceeding which the Beneficiaries may commence
to enforce this Guaranty; and (iii) acknowledges and agrees that the
Beneficiaries are relying on this waiver in entering into the Indenture and
purchasing the Notes, and that this waiver is a material part of the
consideration which the Beneficiaries are receiving for entering into the
Indenture and purchasing the Notes. Guarantor expressly agrees that under no
circumstances shall it be deemed to have any right, title, interest or claim
in or to any real or personal property to be held by Beneficiaries or any
third party after any foreclosure or assignment in lieu of foreclosure of any
security for the Issuer Notes.
8. Revival and Reinstatement. Guarantor agrees that, to
the extent that either Issuer or Guarantor makes a payment or payments to the
Beneficiaries, or the Beneficiaries receive any proceeds of collateral, which
payment or payments or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or otherwise required to
be repaid to either Issuer, its estate, trustee, receiver or any other party,
including, without limitation, under any bankruptcy law, state or federal
law, common law or equitable cause, then to the extent of such payment or
repayment, the obligation or part thereof which has been paid, reduced or
satisfied by such amount shall be reinstated and continued in full force and
effect as of the date such initial payment, reduction or satisfaction
occurred. Guarantor shall defend and indemnify the Beneficiaries from and
against any claim or loss under this Section 8 (including reasonable
attorneys' fees and expenses for both outside and staff counsel) in the
defense of any such action or suit.
9. Issuer's Financial Condition. Guarantor acknowledges
and agrees that it shall have the sole responsibility for obtaining from
Issuer such information concerning Issuer's financial condition or business
operations as Guarantor may require, and that the Beneficiaries have no duty
at any time to disclose to Guarantor any information relating to the business
operations or financial condition of Issuer.
10. Subordination of Guarantor's Rights. To the extent that
the waivers set forth in Section 7 are or are deemed to be ineffective or
inapplicable, any obligations of Issuer to Guarantor, now or hereafter
existing, are hereby subordinated to the Indebtedness. If the Beneficiaries
so request, after the occurrence of an Event of Default (as defined in the
Indenture), such obligations of Issuer to Guarantor shall be enforced and
performance received by Guarantor as trustee for the Beneficiaries and the
proceeds thereof shall be paid over to the Beneficiaries on account of the
Indebtedness, but without reducing or affecting in any manner the liability
of Guarantor under the other provisions of this Guaranty.
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11. Assignment; Disclosure of Information. The
Beneficiaries may, without notice to Guarantor and without affecting
Guarantor's obligations hereunder, assign this Guaranty, in whole or in part
in accordance with the provisions of the Indenture. Guarantor agrees that
the Beneficiaries may, subject to the provisions of the Indenture, disclose
to any prospective purchaser and any purchaser of all or part of the
Indebtedness any and all information in the Beneficiaries' possession
concerning Guarantor, this Guaranty and any security for this Guaranty.
12. Attorneys' Fees. Subject to Section 13 of this
Guaranty, Guarantor agrees to pay all reasonable attorneys' fees and expenses
(for both outside and staff counsel) and all other fees and expenses which
may be incurred by the Beneficiaries in the enforcement of this Guaranty.
Any attorneys' fees and expenses of in-house or staff counsel shall be based
on a billing for legal services actually rendered on an hourly basis and at a
reasonable hourly rate.
13. Non-Recourse to General Partner. The Beneficiaries
agree that neither the general partner of Guarantor (the "GP Entity"), nor
any partner, officer, director, shareholder or employee of either Guarantor
or the GP Entity (collectively, the "Nonrecourse Parties") shall be
personally liable for the payment of any sums now or hereafter owing to the
Beneficiaries under the terms of, or for the performance of any obligation
contained in, this Guaranty. The Beneficiaries agree that their rights
hereunder shall be limited to proceeding against Guarantor and that they
shall have no right to proceed against the Nonrecourse Parties for (i) the
satisfaction of any monetary obligation of, or enforcement of any monetary
claim against, Guarantor, (ii) the performance of any obligation, covenant or
agreement arising under this Guaranty, or (iii) any deficiency judgment
remaining after foreclosure of any personal property securing the obligations
hereunder. Nothing under this Section 13 shall be construed to limit the
liability of the Nonrecourse Parties under the CRC Loans (subject to the
nonrecourse provisions contained in the Transaction Documents).
14. Choice of Law. This Guaranty shall be governed by and
construed according to the laws of the State of New York without regard to
principles of conflicts of law. Any legal action or proceeding with respect
to this Guaranty may be instituted in the courts of the State of New York,
the United District Court for the Southern District of New York, or
elsewhere, as the Beneficiaries may elect, and by execution and delivery of
this Guaranty, Guarantor irrevocably and unconditionally waives (i) any
objection it may now or hereafter have to the laying of venue in any such
courts, (ii) any claim that any action or proceeding brought in any of such
courts has been brought in an inconvenient forum, and (iii) any rights,
entitlement or privilege which Guarantor or its property might otherwise have
not to be subject to such actions or proceedings by reason of sovereign
immunity or otherwise. Guarantor agrees that so long as Guarantor shall be
obligated to the Beneficiaries under this Guaranty, Guarantor shall maintain
duly appointed agents
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satisfactory to Beneficiaries for the service of process in New York, and
shall keep the Beneficiaries advised in writing of the identification and
location of such agents. The failure of such agents to give notice to
Guarantor of any such service shall not impair or affect the validity of such
service or of any judgment rendered in any action or proceeding based
thereon.
15. Complete Agreement. This Guaranty embodies the entire
agreement and understanding between the parties hereto and supersedes all
prior agreements and understandings relating to the subject matter hereof.
16. Delay; Cumulative Remedies. No delay or failure by any
of the Beneficiaries to exercise any right or remedy against the Issuer,
Guarantor or any other guarantor will be construed as a waiver of that right
or remedy. All remedies of the Beneficiaries against the Issuer, Guarantor
and any other guarantors are cumulative.
17. Successors and Assigns. The provisions of this Guaranty
will bind and benefit the endorsees, transferees, successors and assigns of
Guarantor and Beneficiaries.
18. Severability. In the event any one or more of the
provisions contained in this Guaranty shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
and unenforceable provision shall not affect any other provision of this
Guaranty, but this Guaranty shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
19. Counterparts. This Guaranty may be executed in any
number of counterparts, all of which together shall constitute one and the
same instrument.
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Guarantor has executed this Guaranty as of the date and year
first written above.
Guarantor:
CRC-II Limited Partnership,
a Massachusetts limited partnership
By: CRC-II Corp.,
a Massachusetts corporation,
its sole general partner
By: CHARLES DUDDLES
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Name: Charles Duddles
Title: President
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