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EXHIBIT 10.39
New York, New York
January 28, 2000
GUARANTY OF PAYMENT
FOR VALUE RECEIVED, and to induce LEHMAN ALI, INC., a Delaware
corporation, having an address at Three World Financial Center, 200 Vesey
Street, New York, New York 10285 ("Lender"), to lend to POINTE ORLANDO
DEVELOPMENT COMPANY, a California general partnership ("Borrower"), the
principal sum of SEVENTY-EIGHT MILLION FOUR HUNDRED SEVENTY-FOUR THOUSAND SEVEN
HUNDRED TWENTY-FOUR AND 90/100 DOLLARS ($78,474,724.90) (the "Loan"), evidenced
by the Note (as defined in the Loan Agreement (hereinafter defined)) and secured
by the Security Instrument (as defined in the Loan Agreement), and by other
documents executed in connection therewith (the "Other Security Documents"). The
term "Loan Agreement", as used herein, shall mean, that certain amended and
restated the Original Loan Agreement pursuant to that certain Second Amended and
Restated Construction Loan Agreement dated April 20, 1998, as amended.
The undersigned, NEW PLAN EXCEL REALTY TRUST, INC. having an
address at 1120 Avenue of the Americas, New York, New York 10036 ("Guarantor")
hereby absolutely and unconditionally guarantees to Lender the prompt and
unconditional payment of the Guaranteed Obligations (hereinafter defined). The
term "Guaranteed Obligations", as used herein, shall mean a portion of the
outstanding amount of the Debt (hereinafter defined) in excess of
$48,474,724.90, provided, however, the Guaranteed Obligations shall not be
reduced by any payment by the title insurance company resulting from a claim by
Lender in connection with the existing mechanic's liens or mechanic's liens
filed against the Property in connection with Building 5 which are not bonded
and released of record.
It is expressly understood and agreed that this is a
continuing guaranty and that the obligations of Guarantor hereunder are and
shall be absolute under any and all circumstances, without regard to the
validity, regularity or enforceability of the Note, the Security Instrument, or
the Other Security Documents, a true copy of each of said documents Guarantor
hereby acknowledges having received and reviewed.
Any indebtedness of borrower to Guarantor now or hereafter
existing (including, but not limited to, any rights to subrogation Guarantor may
have as a result of any payment by Guarantor under this Guaranty), together with
any interest thereon, shall be, and such indebtedness is, hereby deferred,
postponed and subordinated to the prior payment in full of the Guaranteed
Obligations. Until payment in full of the Guaranteed Obligations (and including
interest accruing thereon after the commencement of a proceeding by or against
Borrower under the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. Sections
101 et seq., and the regulations adopted and promulgated pursuant thereto
(collectively, the "Bankruptcy Code") which interest the parties agree shall
remain a claim that is prior and superior to any claim of Guarantor
notwithstanding any contrary practice, custom or ruling in cases under the
Bankruptcy Code generally), Guarantor agrees not to accept any payment or
satisfaction of any kind of indebtedness of Borrower to Guarantor (provided,
however, provided no Event of Default has occurred and is continuing, the
foregoing shall not prohibit Borrower from making partnership distributions in
the ordinary course of business) and hereby assigns such indebtedness to Lender,
including the right to file proof of claim and to vote thereon in connection
with any such proceeding under the Bankruptcy Code, including the right to vote
on any plan of reorganization.
Guarantor agrees that, with or without notice or demand,
Guarantor will reimburse Lender, to the extent that such reimbursement is not
made by Borrower, for all expenses (including
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reasonable counsel fees) incurred by Lender in connection with the collection of
the Guaranteed Obligations or any portion thereof or with the enforcement of
this Guaranty.
All moneys available to Lender for application in payment or
reduction of the Guaranteed Obligations shall be applied by Lender in such
manner and in such amounts and at such time or times and in such order and,
priority as Lender may see fit to the payment or reduction of such portion of
the Guaranteed Obligations as Lender may elect.
Guarantor hereby waives notice of the acceptance hereof,
presentment, demand for payment, protest, notice of protest, or any and all
notice of non-payment, non-performance or non-observance, or other proof, or
notice or demand.
Guarantor further agrees that the validity of this Guaranty
and the obligations of Guarantor hereunder shall in no way be terminated,
affected or impaired (i) by reason of the assertion by Lender of any rights or
remedies which it may have under or with respect to either the Note, the
Security Instrument, or the Other Security Documents, against any person
obligated thereunder or against the owner of the premises covered by the
Security Instrument, or (ii) by reason of any failure to file or record any of
such instruments or to take or perfect any security intended to be provided
thereby, or (iii) by reason of the release or exchange of any property covered
by the Security Instrument or other collateral for the Loan, or (iv) by reason
of Lender's failure to exercise, or delay in exercising, any such right or
remedy or any right or remedy Lender may have hereunder or in respect to this
Guaranty, or (v) by reason of the commencement of a case under the Bankruptcy
Code by or against any person obligated under the Note, the Security Instrument
or the Other Security Documents, or the death of any Guarantor, or (vi) by
reason of any payment made on the Debt or any other indebtedness arising under
the Note, the Security Instrument or the Other Security Documents, whether made
by Borrower or Guarantor or any other person, which is required to be refunded
pursuant to any bankruptcy or insolvency law; it being understood that no
payment so refunded shall be considered as a payment of any portion of the
Guaranteed Obligations, nor shall it have the effect of reducing the liability
of Guarantor hereunder. It is further understood, that if Borrower shall have
taken advantage of, or be subject to the protection of, any provision in the
Bankruptcy Code, the effect of which is to prevent or delay Lender from
declaring the Debt (as defined in the Loan Agreement) due and payable on the
happening of any default or event by which under the terms of the Note, the
Security Instrument or the Other Security Documents, the Debt shall become due
and payable, Lender may, as against Guarantor, nevertheless, declare the
Guaranteed Obligations due and payable and enforce any or all of its rights and
remedies against Guarantor provided for herein.
Guarantor further covenants that this Guaranty shall remain
and continue in full force and effect as to any modification, extension or
renewal of the Note, the Security Instrument, or any of the Other Security
Documents, that Lender shall not be under a duty to protect, secure or insure
any security or lien provided by the Security Instrument or other such
collateral, and that other indulgences or forbearance may be granted under any
or all of such documents, all of which may be made, done or suffered without
notice to, or further consent of, Guarantor.
As a further inducement to Lender to make the Loan and in
consideration thereof. Guarantor further covenants and agrees (i) that in any
action or proceeding brought by Lender against Guarantor on this Guaranty,
Guarantor shall and does hereby waive trial by jury, (ii) that the Supreme Court
of the State of New York for the County of New York, or, in a case involving
diversity of citizenship, the United States District Court for the Southern
District of New York, shall have jurisdiction of any such action or proceeding,
and (iii) that within thirty days after service of any summons and complaint or
other process in any such action or proceeding, Guarantor so served shall appear
or answer to any summons and complaint or other process and should Guarantor so
served fail to appear or answer
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within said thirty-day period, said Guarantor shall be deemed in default and
judgment may be entered by Lender against the said party for the amount as
demanded in any summons and complaint or other process so served.
This is a guaranty of payment and not of collection and upon
any default of Borrower under the Note, the Security Instrument or the Other
Security Documents, Lender may, at its option, proceed directly and at once,
without notice, against Guarantor to collect and recover the full amount of the
liability hereunder or any portion thereof, without proceeding against Borrower
or any other person, or foreclosing upon, selling, or otherwise disposing of or
collecting or applying against any of the mortgaged property or other collateral
for the Loan. Guarantor hereby waives the pleading of any statute of limitations
as a defense to the obligation hereunder.
Each reference herein to Lender shall be deemed to include its
successors and assigns, to whose favor the provisions of this Guaranty shall
also inure. Each reference herein to Guarantor shall be deemed to include the
heirs, executors, administrators, legal representatives, successors and assigns
of Guarantor, all of whom shall be bound by the provisions of this Guaranty.
Guarantor (and its representative, executing below, if any)
has full power, authority and legal right to execute this Guaranty and to
perform all its obligations under this Guaranty.
All understandings, representations and agreements heretofore
had with respect to this Guaranty are merged into this Guaranty which alone
fully and completely expresses the agreement of Guarantor and Lender.
This Guaranty may be executed in one or more counterparts by
some or all of the parties hereto, each of which counterparts shall be an
original and all of which together shall constitute a single agreement of
Guaranty. The failure of any party hereto to execute this Guaranty, or any
counterpart hereof, shall not relieve the other signatories from their
obligations hereunder.
This Guaranty may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act or failure to act on the
part of Lender or Borrower, but only by an agreement in writing signed by the
party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
This Guaranty shall be governed, construed and interpreted as
to validity, enforcement and in all other respects, in accordance with the laws
of the State of New York.
IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty
as of the date first above set forth.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Dean Bersstien
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Name: Dean Bernstein
Title: Senior Vice President