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EXHIBIT 10.20
FORM OF
GUARANTY
This Guaranty (this "GUARANTY") is made as of the _____ day of _________ by
each of the entities that is a signatory hereto (individually, a "GUARANTOR";
collectively, the "GUARANTORS"), in favor of Bank One, NA (the "BANK"), a
national banking association having its principal office in Chicago, Illinois.
R E C I T A L S:
A. Camden Property Trust, a Texas real estate investment trust (the
"COMPANY"), has requested that the Bank make a loan ("LOAN") to an employee of
the Company (including such employee's heirs, personal representatives and
assigns, the "BORROWER"), the proceeds of which will be used by the Borrower to
purchase common shares of beneficial interest ("COMMON SHARES") of the Company.
The Borrower has executed a promissory note (as amended, replaced or restated
from time to time, a "NOTE") to evidence the Loan which may from time to time,
in the sole discretion of the Bank, be made to the Borrower. The Borrower and
his/her Note amount are set forth on Exhibit A hereto.
B. Each of the Guarantors is a direct or indirect wholly-owned subsidiary
of the Company. The execution and delivery of this Guaranty is a condition
precedent to any extension of credit to the Borrower pursuant to the Note. Each
term used but not otherwise defined herein shall have the meaning ascribed to
such term by the Note.
C. By virtue of the Borrower's services to the Company and the Guarantors,
the Guarantors have derived and will continue to derive substantial benefits.
Moreover, the ownership of the Common Shares which will be facilitated by the
Loan will provide incentive to the Borrower in performing his/her job so as to
more closely align the interests of the Borrower with those of the Company and
its shareholders, and thus confer significant benefits upon the Guarantors.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration and as an inducement to the Bank to make the Loan to the
Borrower, each Guarantor hereby agrees as follows:
1. Each Guarantor hereby jointly and severally, absolutely, irrevocably
and unconditionally guarantees prompt payment when due, whether at stated
maturity, upon acceleration or otherwise, and at all times thereafter, of any
and all existing and future indebtedness, fees (including any Early Payment
Fees) and liabilities of every kind, nature and character, direct or indirect,
absolute or contingent (including all renewals, extensions and modifications
thereof and all reasonable attorneys' fees incurred by the Bank in connection
with the collection or enforcement thereof), of the Borrower to the Bank
howsoever and whensoever created, but only to the extent constituting a Loan or
Overdrafts (as defined in the Note) or arising under and evidenced by the Note
executed by the Borrower and payable to the Bank (the "Guaranteed Debt"). This
is a guaranty of payment, not a guaranty of collection.
2. Each Guarantor waives notice of the acceptance of this Guaranty and of
the extension or continuation of the Guaranteed Debt or any part thereof. Each
Guarantor further waives all setoffs and counterclaims and presentment, protest,
notice, the benefit of any statutes of limitation, demand or action or
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delinquency in respect of the Guaranteed Debt or any part thereof, including any
right ...()()()..to require the Bank to sue the Borrower, any other guarantor or
any other person obligated with respect to the Guaranteed Debt or any part
thereof, or otherwise to enforce payment thereof against any collateral securing
the Guaranteed Debt or any part thereof. If at any time any payment of any
portion of the Guaranteed Debt is rescinded or must otherwise be restored or
returned upon the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, each Guarantor's obligations hereunder with respect to such payment
shall be reinstated at such time as though such payment had not been made and
whether or not the Bank is in possession of this Guaranty.
3. Each Guarantor hereby agrees that, to the fullest extent permitted by
law, its obligations hereunder shall be continuing, absolute and unconditional
under any and all circumstances and not subject to any reduction, limitation,
impairment, termination, defense (other than indefeasible payment in full),
setoff, counterclaim or recoupment whatsoever (all of which are hereby expressly
waived by it to the fullest extent permitted by law), whether by reason of any
character whatsoever, including, without limitation, any claim of waiver,
release, surrender, alteration or compromise. This Guaranty shall continue in
effect until receipt by the Bank of written notice of its termination and,
notwithstanding such receipt, thereafter as to Guaranteed Debt incurred, arising
or committed for prior to receipt by the Bank of such notice of termination,
notwithstanding any extensions, modifications, renewals or indulgences with
respect to, or substitutions for, the Guaranteed Debt or any part thereof.
4. The validity and enforceability of this Guaranty shall not be impaired
or affected by any of the following, whether occurring before or after receipt
by the Bank of notice of termination of this Guaranty: (a) any extension,
modification or renewal of, or indulgence with respect to, or substitutions for,
the Guaranteed Debt or any part thereof or any agreement relating thereto at any
time; (b) any failure or omission to enforce any right, power or remedy with
respect to the Guaranteed Debt or any part thereof or any agreement relating
thereto, or any collateral securing the Guaranteed Debt or any part thereof; (c)
any waiver of any right, power or remedy or of any default with respect to the
Guaranteed Debt or any part thereof or any agreement relating thereto or with
respect to any collateral securing the Guaranteed Debt or any pan thereof; (d)
any release, surrender, compromise, settlement, waiver, subordination or
modification, with or without consideration, of any collateral securing the
Guaranteed Debt or any part thereof, any other guaranties with respect to the
Guaranteed Debt or any part thereof, or any other obligation of any person or
entity with respect to the Guaranteed Debt or any pad thereof; (e) the
enforceability or validity of the Guaranteed Debt or any part thereof or the
genuineness, enforceability or validity of any agreement relating thereto or
with respect to any collateral securing the Guaranteed Debt or any part thereof;
(f) the application of payments received from any source to the payment of
indebtedness other than the Guaranteed Debt, any part thereof or amounts which
are not covered by this Guaranty even though the Bank might lawfully have
elected to apply such payments to any part or all of the Guaranteed Debt or to
amounts which are not covered by this Guaranty; (g) the insolvency, bankruptcy,
death or any other change in the legal status of the Borrower; (h) the change in
or the imposition of any law, decree, regulation or other governmental act which
does or might impair, delay or in any way affect the validity, enforceability or
the payment when due of the Guaranteed Debt; (i) the failure of the Borrower or
any Guarantor to maintain in full force, validity or effect or to obtain or
renew when required all governmental and other approvals, licenses or consents
required in connection with the Guaranteed Debt or this Guaranty, or to take any
other action required in connection with the performance of all obligations
pursuant to the Guaranteed Debt or this Guaranty; (j) the existence of any
claim, setoff or other rights which any Guarantor may have at any time against
the Borrower in connection herewith or an unrelated transaction; (k) any
disbursement of funds to the Borrower who has not executed and delivered a Note
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or any disbursement of funds on the basis of a facsimile (rather than original)
signature for such Note (it being understood that upon the disbursement of funds
by the Bank to the Company with respect to the Borrower in the principal amount
set forth on Exhibit A hereto, such amount shall for all purposes of this
Guaranty be treated as a Loan outstanding to the Borrower in accordance with the
Note and shall be included in the Guaranteed Debt; or (l) any other fact or
circumstances which might otherwise constitute grounds at law or equity for the
discharge or release of any Guarantor from its obligations hereunder, all
whether or not any Guarantor shall have had notice or knowledge of any act or
omission referred to in the foregoing clauses (a) through (l) of this paragraph.
It is agreed that each Guarantor's liability hereunder is several and
independent of any other guaranties or other obligations at any time in effect
with respect to the Guaranteed Debt or any part thereof and that each
Guarantor's liability hereunder may be enforced regardless of the existence,
validity, enforcement or non-enforcement of any such other guaranties or other
obligations or any provision of any applicable law or regulation purporting to
prohibit payment by the Borrower of the Guaranteed Debt in the manner agreed
upon between the Bank and the Borrower. To the extent that, by operation of
Section 16 of the Note or otherwise, the Bank is not entitled to collect any
portion of the Guaranteed Debt in the amount and manner provided for in the Note
(such portion being the "Excess Amount"), the Guarantors shall nevertheless be
obligated to, and shall, pay to the Bank, as additional consideration for
funding the Loan and thereby benefiting the Guarantors, an amount equal to such
Excess Amounts. Such additional consideration shall be paid upon demand made on
or after the date such Excess Amount was otherwise due.
5. Credit may be granted or continued from time to time by the Bank to the
Borrower without notice to or authorization from any Guarantor regardless of the
Borrower's financial or other condition at the time of any such grant or
continuation, provided that in no event shall the principal amount outstanding
under the Borrower's Note exceed the amount set forth for the Borrower on
Exhibit A hereto. The Bank shall have no obligation to disclose or discuss with
any Guarantor its assessment of the financial condition of the Borrower.
6. Until the Guaranteed Debt is irrevocably paid in full, the Guarantors
shall not have or exercise any right of subrogation with respect to payments
made by any Guarantor pursuant to this Guaranty and hereby waive any right to
enforce any remedy which the Bank now has or may hereafter have against the
Borrower.
7. In the event that acceleration of the time for payment of any of the
Guaranteed Debt is stayed, upon the insolvency, bankruptcy or reorganization of
the Borrower, or otherwise, all such amounts shall nonetheless be payable by the
Guarantors forthwith upon demand by the Bank. Each Guarantor further agrees
that, to the extent that the Borrower makes a payment or payments to the Bank on
the Guaranteed Debt, or the Bank receives any proceeds of collateral, if any,
securing the Guaranteed Debt, which payment or receipt of proceeds or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required to be returned or repaid to the Borrower, its estate,
trustee, receiver, debtor in possession or any other party, including, without
limitation, any Guarantor, under any insolvency or bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of such payment,
return 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 when such initial payment, reduction or satisfaction
occurred.
8. Without limiting the rights of the Bank under applicable law, each
Guarantor authorizes the Bank to apply or offset any sums standing to the credit
of the Guarantors with any office, branch, subsidiary or affiliate of the Bank
to the payment when due of any amount owing by the Guarantors under this
Guaranty.
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9. No provision of this Guaranty may be amended, supplemented or modified,
or any of the terms and provisions hereof waived, except by a written instrument
executed by the Bank and each Guarantor. No failure on the part of the Bank to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law. Any determination by a court of competent jurisdiction
of the amount of any Guaranteed Debt owing by the Borrower to the Bank shall be
conclusive and binding on each Guarantor irrespective of whether such Guarantor
was a party to the suit or action in which such determination was made. All
obligations of the Guarantors hereunder shall be joint and several.
10. Each Guarantor hereby represents and warrants to the Bank that:
(a) such Guarantor is a corporation or limited partnership duly
incorporated or organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or formation,
as applicable, and is duly qualified and in good standing as a
foreign corporation or limited partnership and is duly authorized
to conduct its business in each jurisdiction in which the nature
of its business or the ownership of its properties makes such
qualification necessary, other than in such jurisdictions where
the failure to be so qualified would not have a material adverse
effect on such Guarantor;
(b) such Guarantor has all requisite power and authority (corporate
and otherwise) and legal right to execute and deliver this
Guaranty and to perform its obligations hereunder;
(c) the execution and delivery by such Guarantor of this Guaranty and
the performance of its obligations hereunder have been duly
authorized by proper corporate or partnership proceedings, as
applicable, and this Guaranty constitutes the legal, valid and
binding obligations of such Guarantor, enforceable against such
Guarantor, in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally;
(d) neither the execution and delivery by such Guarantor of this
Guaranty nor compliance with the provisions of this Guaranty will,
or at the relevant time did, (i) violate any law, rule, regulation
(including Regulations T, U or X), order, writ, judgment,
injunction, decree or award binding on such Guarantor or such
Guarantor's charter, articles or certificate of incorporation,
certificate of formation, by-laws or partnership agreement, (ii)
violate the provisions of or require the approval or consent of
any party to any indenture, instrument or agreement to which such
Guarantor is a party or is subject, or by which it, or its
property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any lien
in, of or on the property of such Guarantor pursuant to the terms
of any such indenture, instrument or agreement, or (iii) require
any consent of the stockholders of any person or of any
governmental authority; and
(e) no obligations of the Borrower to such Guarantor in respect of the
Loan or this Guaranty are directly or "indirectly secured" by any
"margin stock" (as such terms are defined in Regulation U of the
Board of Governors of the Federal Reserve System).
Each Guarantor agrees that (i) the foregoing representations and warranties
shall be deemed to have been made by such Guarantor on the date of this Guaranty
and (ii) it will not take any action or accept any collateral which would result
in Section 10(e) of this Guaranty being untrue at any time. At the request of
the Bank, each Guarantor agrees to promptly deliver, or caused to be delivered,
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to the Bank the information required to be delivered under Section 7.1 of the
Existing Credit Agreement evidencing compliance with the covenants and other
terms contained therein and such other information regarding the financial
position or business of the Guarantors as the Bank may reasonably request from
time to time.
11. The undersigned shall pay all costs, fees and expenses (including
reasonable attorneys' fees) incurred by the Bank in collecting or enforcing the
Guarantors' obligations under this Guaranty.
12. Wherever possible, each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Guaranty. The provisions of this Guaranty are
severable, and in any action or proceeding involving any state corporate law, or
any state or federal bankruptcy, insolvency, reorganization or other law
affecting the rights of creditors generally, if the obligations of any Guarantor
hereunder would otherwise be held or determined to be avoidable, invalid or
unenforceable on account of the amount of such Guarantor's liability under this
Guaranty, then, notwithstanding any other provision of this Guaranty to the
contrary, the amount of such liability shall, without any further action by the
Guarantors or the Bank be automatically limited and reduced to the highest
amount which is valid and enforceable as determined in such action or
proceeding.
13. This Guaranty shall (i) bind the Guarantors and their successors and
assigns, (ii) inure to the benefit of the Bank, its successors and assigns and
(iii) be governed by the internal laws (and not the law of conflicts) of the
State of Illinois. The undersigned hereby irrevocably submits to the
non-exclusive jurisdiction of any United States federal or Illinois state court
sitting in Chicago in any action or proceeding arising out of or relating to
this Guaranty, and each Guarantor hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in any such
court. THE GUARANTORS AND THE BANK, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE
ANY RIGHT TO A JURY TRIAL IN ANY ACTION ARISING HEREUNDER.
14. Except as otherwise expressly provided herein, any notice required
or desired to be served, given or delivered to any party hereto under this
Guaranty shall be in writing by telex, facsimile, U.S. mail or overnight courier
and addressed or delivered to such party (a) if to the Bank, at 1 Bank One
Plaza, Chicago, Illinois 60670, Attention: Carolyn M. Johnson, facsimile: (312)
732-7099, or (b) if to any Guarantor, at their addresses set forth below, or to
such other address as the Bank or any Guarantor designates to the Agent in
writing. All notices by United States mail shall be sent certified mail, return
receipt requested. All notices hereunder shall be effective upon delivery or
refusal of receipt; provided, however, that any notice transmitted by telex or
facsimile shall be deemed given when transmitted (answerback confirmed in the
case of telexes).
[signature page follows]
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IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the
date first above written.
CAMDEN USA, INC.
By:_____________________________________
Title:__________________________________
Address: 3 Greenway Plaza
Suite 1300
Houston, Texas 77046
Attention: G. Steven Dawson
Facsimile: (713) 354-2710
CAMDEN OPERATING L.P.
By: CPT-GP, Inc., its general partner
By:_____________________________________
Title:__________________________________
Address: 3 Greenway Plaza
Suite 1300
Houston, Texas 77046
Attention: G. Steven Dawson
Facsimile: (713) 354-2710