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Ex. 10.5
GUARANTY
September 28, 1998
FOR VALUE RECEIVED, and in consideration of loans made or to be made or
credit otherwise extended or to be extended to or for the account of NEW PLAN
EXCEL REALTY TRUST, INC. (the "Borrower") by the Lenders (hereinafter defined)
under the Credit Agreement (hereinafter defined) and for other good and valuable
consideration and to induce the Lenders to make the loans or extensions of
credit provided for in the Credit Agreement the undersigned, its successors and
assigns, hereby agrees as follows:
1. Defined Terms.
Terms which are not otherwise defined herein shall have the meanings
ascribed to such terms in the Credit Agreement. The following terms shall have
the following meanings:
"Agent": The Bank of New York and its successors and assigns.
"Assumption and Substitution Agreement": That certain Assumption and
Substitution Agreement of even date herewith among the Borrower, the Agent, the
Lenders and New Plan.
"Credit Agreement": that certain Credit Agreement, dated November
21, 1997 among, the Agent, New Plan and the Lenders who are parties thereto as
the same has been amended and may hereafter be amended.
"New Plan" New Plan Realty Trust, the borrower under the Credit
Agreement prior to the effectiveness of the Assumption and Substitution
Agreement, and the guarantor hereunder.
2. Guaranty.
The undersigned, its successors and assigns, guarantees to the
Agent, for the benefit of the Lenders, the prompt payment when due of all
present and future obligations and liabilities, whether deemed principal,
interest, additional interest, fees,
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expenses or otherwise, of the Borrower to the Lender, including, without
limitation, all obligations under (i) the Credit Agreement, (ii) the Notes and
(iii) all other Loan Documents (all of which are herein collectively referred to
as the "Obligations"), irrespective of the genuineness, validity, regularity or
enforceability of such Obligations, or of any instrument evidencing any of the
Obligations or of any collateral therefor or of the existence of such
collateral.
3. Representations and Warranties.
The undersigned hereby represents and warrants to the Agent and the
Lenders that:
(a) Organization. The undersigned (i) is duly organized and validly
existing Massachusetts business trust in good standing under the laws of the
Commonwealth of Massachusetts, (ii) has the power and authority to own its
property and assets and to transact the business in which it is engaged and
(iii) is duly qualified and in good standing in each jurisdiction where the
ownership, leasing or operation of its property or the conduct of its business
requires such qualification, except where the failure to qualify could not
reasonably be expected to have a Material Adverse Effect.
(b) Power and Authority. The undersigned has the legal power to
execute, deliver and perform the terms and provisions of this Guaranty and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Guaranty. The undersigned has duly executed and delivered this
Guaranty and the Guaranty constitutes the legal, valid and binding obligations
of the undersigned and is enforceable in accordance with its terms, provided
that, the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally.
(c) Consents and Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made prior to the date hereof), or exemption
by, any governmental body is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of this Guaranty by the
undersigned, or (ii) the legality, validity, binding effect or enforceability of
this Guaranty.
(d) Solvency. The undersigned is not insolvent (as such term is
defined in Section 101(32) of the Bankruptcy Code of 1978, as amended) and will
not be rendered insolvent (as such term is defined in Section 101(32) of the
Bankruptcy Code of 1978, as amended) by execution of this Guaranty or
consummation of the transaction contemplated thereby.
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(e) No Offsets. The undersigned has no offsets, defenses or
counterclaims to the enforcement of this Guaranty.
4. Other Provisions.
(a) Continuing Guaranty. This is a continuing guaranty and shall
remain in full force and effect and be binding upon the undersigned, and the
undersigned's successors and assigns. Nothing except cash payment in full of all
Obligations shall release the undersigned from liability under this Guaranty.
This Guaranty is a guaranty of payment and not of collection, and neither the
Agent nor any Lender shall be under no obligation to take any action against
Borrower or any other person liable with respect to any of the Obligations or
resort to any collateral security held by it to secure any of the Obligations as
a condition precedent to the undersigned being obligated to perform as agreed
herein.
(b) Acknowledgment. The undersigned hereby acknowledges that it has
derived or expects to derive a financial or other advantage from each and every
Obligation incurred by Borrower to the Lender.
(c) Subrogation. Until such time as the Lender shall have received
payment in full in cash in satisfaction of all of the Obligations, the
undersigned waives any rights to be subrogated to the rights of the Lender with
respect to the Obligations and the undersigned waives any right to and agrees
that it will not institute or take any action against the Borrower seeking
contribution, reimbursement or indemnification by the Borrower with respect to
any payments made by the undersigned to the Lender hereunder.
(d) Waivers. The undersigned waives notice of the acceptance of this
Guaranty and of the making of any such loans or extensions of credit,
presentment to or demand of payment from anyone whomsoever liable upon any of
the Obligations, protest, notice of presentment, non-payment or protest and
notice of any sale of collateral security or any default of any sort. The
undersigned hereby agrees that, in the event that any property of the
undersigned is or may be hypothecated with property of Borrower as security for
any Obligations, any right of the undersigned to have such property of Borrower
first applied to the discharge of such Obligations is hereby irrevocably waived
by the undersigned. The undersigned waives any and all notice of the creation,
renewal, extension or accrual of any of the Obligations or of the reliance by
Agent or the Lenders upon this Guaranty. The Obligations, and each of them,
shall conclusively be deemed to have been created, contracted or incurred in
reliance upon this Guaranty. This Guaranty shall be construed as a continuing,
absolute and unconditional guaranty without regard to
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the validity, regularity or enforceability of the Obligations and any other
indebtedness at any time held or owing by the Agent and the Lenders to or for
the credit or the account of the undersigned against and on account of the
Obligations and liabilities of the undersigned hereunder. The undersigned hereby
waives any and all legal requirements that require or compel the Agent and the
Lenders to institute any action or proceedings at law or in equity against
Borrower, or anyone else, in respect of the Loans or any other document executed
in connection with the Loans or resort to or seek to realize upon or exhaust the
security held by the Agent or the Lenders or pursue any other remedy in the
Agent's or the Lenders' power, as a condition precedent to bringing an action
against the undersigned upon this Guaranty, and failure of the Agent or the
Lenders to do any of the foregoing shall not exonerate, release or discharge the
undersigned from its absolute, unconditional and independent liabilities to the
Agent and the Lenders hereunder. The undersigned hereby waives any rights to
interpose any defense (other than the defense of payment), counterclaim (other
than counterclaims which are required by law to be brought as part of the
proceedings brought by the holder hereof) or offset of any nature and
description which it may have or which may exist between and among the Agent,
any Lender, Borrower and/or the undersigned and any right to plead any election
of remedies.
(e) Rights of the Agent and the Lenders. The Agent, on behalf of the
Lenders, may bring and prosecute a separate action against the undersigned to
enforce its liabilities hereunder, whether or not any action is brought against
Borrower or any other person and whether or not Borrower or any other person is
joined in any such action or actions. Nothing shall prohibit the Agent from
exercising its rights against the undersigned, the Borrower, the security, if
any, for the Obligations, and any other person simultaneously, jointly and/or
severally. The undersigned shall be bound by each and every ruling, order and
judgment obtained by the Agent against Borrower in respect of the Obligations,
whether or not the undersigned is a party to the action or proceeding in which
such ruling, order or judgment is issued or rendered.
(f) No Discharge. The undersigned shall not be discharged, released
or exonerated, in any way, from its absolute, unconditional and independent
liabilities hereunder, even though any rights or defenses which the undersigned
may have against Borrower, the Lender or others may be destroyed, diminished or
otherwise affected by:
(i) Any declaration by the Agent or the Lenders of a default
in respect of any of the Obligations;
(ii) The exercise by the Agent or any Lender of any rights or
remedies against Borrower or any other person;
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(iii) The failure of the Agent or the Lenders to exercise any
rights or remedies against Borrower or any other person;
(iv) The sale or enforcement of, or realization upon (through
judicial foreclosure, power of sale or any other means) any
security for any of the Obligations, even though (i) recourse
may not thereafter be had against Borrower for any deficiency,
or (ii) the failure of the Agent or any Lender to pursue any
such recourse which might otherwise be available; whether by
way of deficiency judgment following judicial foreclosure, or
otherwise;
(v) Any bankruptcy or reorganization of Borrower;
(vi) The release of any other guarantor by operation of law
or otherwise; or
(vii) The voluntary or involuntary participation by Borrower
in any settlement or composition for the benefit of Borrower's
creditors either in liquidation, readjustment, receivership,
bankruptcy or otherwise.
(g) Unconditional Nature of Guaranty. This Guaranty is absolute and
unconditional and shall not be changed or affected by any representation, oral
agreement, act or thing whatsoever, except as herein otherwise expressly
provided. No modification or amendment of any provisions of this Guaranty shall
be effective unless in writing and signed by a duly authorized officer of the
Agent.
(h) Preservation of Rights. No failure on the part of the Agent or
any Lender to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise by the Agent or the Lenders of any right, remedy or power hereunder
preclude any other or future exercise of any other right, remedy or power. Each
and every right, remedy and power hereby granted to the Agent and the Lenders or
allowed it by law or other agreement shall be cumulative and not exclusive of
any other, and may be exercised by the Agent and Lenders at any time and from
time to time.
5. Notices.
All notices and other communications provided for hereunder to a
party hereto shall be in writing (including telecopier) and mailed, telecopied
or delivered to such party, at the following address or at such other address as
shall be designated by such party in a written notice to the other parties
hereto:
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if to the undersigned:
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Dean Bernstein
Vice President
Telephone: (212) 869-3000
Telecopier: (212) 302-4776
with a copy to:
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Steven F. Siegel, Esq.,
Telephone: (212) 869-3000
Telecopy: (212) 302-4776
and an additional copy to:
Hofheimer Gartlir & Gross, LLP
633 Third Avenue
New York, New York 10017
Attention: Donald M. Weisberg, Esq.
Telephone: (212) 818-9000
Telecopy: (212) 661-3132
if to the Agent:
The Bank of New York
One Wall Street
Agency Function Administration
18th floor
New York, New York
Attention: William Fahey
Vice President
Agency Function Administrator
Telephone: (212) 635-4690
Telecopy: (212) 635-6365 or 6366 or 6367
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with a copy to:
The Bank of New York
One Wall Street - 21st Floor
New York, New York 10286
Attention: Andrea Stuart
Vice President
Telephone: (212) 635-4672
Telecopier: (212) 635-7904
All such notices and communications shall, (i) when telecopied be
effective when sent, (ii) when mailed by first class mail, postage prepaid, be
effective on the fifth (5th) day following deposit in the mails, and (iii) when
sent or delivered by any other means be effective when received. The undersigned
and the Agent may rely on signatures of each other which are transmitted by
telecopier or other electronic means as fully as if originally signed.
6. Jurisdiction; Venue.
The undersigned irrevocably submits to the jurisdiction of any New
York State or Federal court sitting in the City or State of New York over any
suit, action or proceeding arising out of or relating to this Guaranty. The
undersigned hereby agrees that Agent shall have the option, in its sole
discretion, to lay the venue of any such suit, action or proceeding, in the
courts of the State of New York or the United States of America for the Southern
District of New York, and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding brought in such court and any claim that
any such suit, action or proceeding brought in such a court has been brought in
an inconvenient forum. The undersigned agrees that a final judgment in any such
suit, action or proceeding brought in such a court shall be conclusive and
binding upon the undersigned.
7. Waiver of Trial by Jury.
THE UNDERSIGNED HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY, THE CREDIT AGREEMENT
OR ANY LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREIN AND THEREIN,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. FURTHER, THE UNDERSIGNED HEREBY
CERTIFIES THAT NO
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REPRESENTATIVE OF THE AGENT OR ANY LENDER, OR COUNSEL TO THE AGENT OR ANY
LENDER, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR SUCH LENDER
WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS PROVISION. THE
PROVISIONS OF THIS PARAGRAPH CONSTITUTE A MATERIAL INDUCEMENT TO THE AGENT AND
THE LENDERS TO ACCEPT THIS GUARANTY.
8. Governing Law.
This Guaranty and the rights and obligations of the parties
hereunder shall be construed, enforced, and interpreted according to the laws of
the State of New York applicable to contracts made in and performed in the State
of New York. Unless the text otherwise requires all terms used herein shall have
the meaning specified in the Uniform Commercial Code as in effect in the State
of New York on the date hereof.
9. Trust Limitation.
This Guaranty has been negotiated, executed and delivered on behalf
of the undersigned by the trustees or officers thereof in their representative
capacity under the Declaration of Trust, and not individually, and bind only the
trust estate of the undersigned, and no trustee, officer, employee, agent or
shareholder of the undersigned shall be bound or held to any personal liability
or responsibility in connection with the agreements, obligations and
undertakings of the undersigned hereunder, and any person or entity dealing with
the undersigned in connection therewith shall look only to the trust estate for
the payment of any claim or for the performance of any agreement, obligation or
undertaking thereunder. The Agent and each Lender hereby acknowledge and agree
that each agreement and other document executed by the undersigned in accordance
with or in respect of this transaction shall be deemed and treated to include in
all respects and for all purposes the foregoing exculpatory provision.
IN WITNESS WHEREOF, this Guaranty has been executed by the
undersigned as of the date first above written.
NEW PLAN REALTY TRUST
By: /s/ Dean Bernstein
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Name: Dean Bernstein
Title: Vice President