EXHIBIT 10.32
RECOURSE GUARANTY
May 13, 2002
WHEREAS XXXXXXXX CENTENNIAL PARTNERS, L.P., a Texas limited partnership and
ASHWOOD AMERICAN PARTNERS MC DALLAS, L.P., a Texas limited partnership
(collectively, "Mezzanine Borrower"), have applied to XXXX-XXXX PROPERTY TRUST,
a Maryland business trust ("Mezzanine Lender"), for a Mezzanine Loan in the
principal amount of $5,000,000 (the "Mezzanine Loan"), which Mezzanine Loan will
be advanced pursuant to the terms of the Mezzanine Loan Agreement, of even date
herewith, between Mezzanine Lender and Mezzanine Borrower ("Mezzanine Loan
Agreement"), evidenced by the Note and secured in part by the Equity Pledge (as
such terms are defined in the Mezzanine Loan Agreement); and
WHEREAS Xxxxxxxxx Lender is willing to make the Mezzanine Loan to Mezzanine
Borrower only if the undersigned executes and delivers this Guaranty to
Mezzanine Lender;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, and in
order to induce Mezzanine Lender to make the Mezzanine Loan to Mezzanine
Borrower, the undersigned, intending to be legally bound, hereby covenants and
agrees with Xxxxxxxxx Xxxxxx as follows:
1. All capitalized terms used and not otherwise defined herein shall have
the respective meanings given to such terms in the Mezzanine Loan Agreement.
2. (a) The undersigned hereby absolutely and unconditionally guarantee to
Mezzanine Lender that Mezzanine Borrower shall fully pay the Recourse
Obligations. The undersigned shall be liable for the payment in full of the
Recourse Obligations in accordance with the provisions of this Guaranty, and
Mezzanine Lender shall have the absolute and unconditional right to make an
immediate demand on the undersigned for payment in full of the Recourse
Obligations pursuant to this Guaranty, and to commence any action or proceeding
which Mezzanine Lender in its sole and absolute discretion deems to be necessary
to enforce the obligations of the undersigned under this Guaranty. The
obligations and liabilities of the undersigned under this paragraph shall
survive and continue in full force and effect and shall not be terminated,
discharged or released, in whole or in part, irrespective of any foreclosure
under the Equity Pledge or any other Mezzanine Loan Document or Mezzanine Lender
commencing actions to appropriate or realize the sale of all or any portion of
the Collateral pursuant to the provisions of the Equity Pledge or any other
Mezzanine Loan Document or the acceptance by Mezzanine
Lender, its nominee or wholly owned subsidiary, of a deed or assignment in lieu
of foreclosure or sale and irrespective of any other fact or circumstance
whatsoever.
(b) The undersigned absolutely and unconditionally guarantees to
Mezzanine Lender the payment of any and all claims, demands, penalties, causes
of action, fines, liabilities, settlements, damages, costs or expenses of
whatever kind or nature, known or unknown, foreseen or unforeseen, contingent or
otherwise (including counsel fees and expenses, court costs and litigation
expenses) arising out of, or in any way related to any failure by Mezzanine
Borrower to fully perform, observe and comply with any of the Recourse
Obligations. If Mezzanine Borrower does not fully perform, observe and comply
with any of the Recourse Obligations, the undersigned shall reimburse Mezzanine
Lender upon demand for all such claims, demands, penalties, causes of action,
fines, liabilities, settlements, damages, costs or expenses incurred by
Mezzanine Lender to the extent not otherwise reimbursed to Mezzanine Lender by
Mezzanine Borrower in connection with Mezzanine Lender performing Mezzanine
Borrower's obligations in respect of any such Recourse Obligations which
Mezzanine Borrower failed to fully perform, observe and comply with, together
with interest thereon at the Default Rate.
3. The undersigned agrees that, with or without notice or demand, the
undersigned will reimburse Mezzanine Lender, to the extent that such
reimbursement is not made by Mezzanine Borrower, for all reasonable costs and
expenses (including, without limitation, reasonable attorneys' fees and costs)
incurred by Mezzanine Lender in connection with the collection of the Recourse
Obligations or any portion thereof or in any action, case or proceeding brought
by Mezzanine Lender to enforce the obligations of the undersigned under this
Guaranty.
4. The undersigned hereby represents and warrants as follows:
(a) This Guaranty constitutes the valid and binding obligation and
agreement of the undersigned, enforceable in accordance with its terms.
(b) The undersigned is not in default beyond any applicable notice
and grace period under any agreement or instrument to which it is a party or by
which it or its assets may be bound or affected, which default would have a
materially adverse effect on its ability to perform its obligations under this
Guaranty, and the undersigned is not in default under any order, judgment, award
or decree of any court, arbitrator or other governmental authority binding upon
or affecting it or by which any of its assets may be bound or affected, which
default would have a materially adverse effect on its business, assets,
properties or financial or other condition.
(c) Neither the execution and delivery of this Guaranty nor the
compliance by the undersigned with the terms and provisions hereof are events
which of themselves, or with the giving of notice or the passage of time, or
both, would constitute,
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on the part of the undersigned, a violation of or conflict with, or result in
any breach of, or default under, the terms, conditions or provisions of, or
require any consent, permit, approval, authorization, declaration or filing
which has not been made or obtained under or pursuant to, any statute, law,
judgment, decree, order, rule or regulation applicable to the undersigned, or
any other agreement or instrument to which the undersigned is a party or by
which the undersigned, or its assets, are bound or affected, or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever on any of the assets of the undersigned, and no such condition or
event of itself, or with the giving of notice or the passage of time, or both,
will result in the acceleration of the due date of any obligation of the
undersigned or by which any of its assets are bound.
(d) None of the Equity Interests of the undersigned in the Mezzanine
Borrower or in their respective general partners is subject to any pledge,
security interest, encumbrance, hypothecation or other right or interest, direct
or indirect, legal or beneficial, to or of any Person other than Mezzanine
Lender.
5. All moneys available to Mezzanine Lender for application in payment or
reduction of the Indebtedness may be applied by Mezzanine Lender in such manner
and in such amounts and at such time or times and in such order, priority and
proportions as Mezzanine Lender may see fit to the payment or reduction of such
portion of the Indebtedness as Mezzanine Lender may elect.
6. The undersigned hereby consents that from time to time, before or
after any Event of Default by Mezzanine Borrower, with or without further notice
to or assent from the undersigned, any security at any time held by or available
to Mezzanine Lender for any obligation of Mezzanine Borrower, or any security at
any time held by or available to Mezzanine Lender for any obligation of any
other Person secondarily or otherwise liable for all or any portion of the
Indebtedness, may be exchanged, surrendered or released and any obligation of
Mezzanine Borrower, or of any such other Person, may be changed, altered,
renewed, extended, continued, surrendered, compromised, waived or released in
whole or in part, or any Default or Event of Default with respect thereto
waived, and Mezzanine Lender may fail to set off and may release, in whole or in
part, any balance of any deposit account or credit on its books in favor of
Mezzanine Borrower, or of any such other Person, and may extend further credit
in any manner whatsoever to Mezzanine Borrower, and generally deal with
Mezzanine Borrower or any such security or other Person as Mezzanine Lender may
see fit; and the undersigned shall remain bound under this Guaranty
notwithstanding any such exchange, surrender, release, change, alteration,
renewal, extension, continuance, compromise, waiver, inaction, extension of
further credit or other dealing.
7. The undersigned hereby waives (a) notice of acceptance of this
Guaranty and of the making of the Mezzanine Loan or any advance thereof by
Mezzanine Lender to Mezzanine Borrower, (b) presentment and demand for payment
of the Indebtedness or any portion thereof, (c) protest and notice of dishonor
or default to the undersigned or to
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any other Person with respect to the Indebtedness or any portion thereof, (d)
all other notices to which the undersigned might otherwise be entitled with
respect to this Guaranty except as otherwise expressly provided herein, or
required by law, and (e) any demand for payment under this Guaranty. Nothing in
this paragraph shall be deemed a waiver of the obligations, if any, of Mezzanine
Lender to provide notice to Mezzanine Borrower (or any other Person) prior to
acceleration of the maturity of the Indebtedness except to the extent such
notice is specifically required by the express provisions of the Mezzanine Loan
Agreement or the other Mezzanine Loan Documents.
8. This Guaranty is a guaranty of payment and not of collection and the
undersigned further waives any right to require that any action, case or
proceeding be brought against Mezzanine Borrower or any other Person or to
require that resort be had to any Collateral or other security for the Mezzanine
Loan or to any balance of any account or credit on the books of Mezzanine Lender
in favor of Mezzanine Borrower or any other Person.
9. Each reference herein to Mezzanine Lender shall be deemed to include
its successors and assigns, in whose favor the provisions of this Guaranty shall
also inure. Each reference herein to the undersigned shall be deemed to include
the heirs, executors, administrators, legal representatives, successors and
assigns of the undersigned, all of whom shall be bound by the provisions of this
Guaranty, provided, however, that the undersigned shall in no event or under any
circumstance have the right without obtaining the prior written consent of
Mezzanine Lender to Transfer the undersigned's obligations and liabilities under
this Guaranty, in whole or in part, to any other Person and no such Transfer
shall serve to release the obligations of the undersigned without an express
written release thereof by Xxxxxxxxx Xxxxxx.
10. The term "undersigned" as used herein shall, if this Guaranty is
signed by more than one Person, mean the "undersigned and each of them" and each
undertaking herein contained shall be their joint and several undertaking,
provided, however, that where applicable (as ascertained from the plain intent
of the context) the term "undersigned" shall mean the "undersigned or any of
them". If any party hereto shall be a partnership, the agreements and
obligations on the part of the undersigned herein contained shall remain in
force and application notwithstanding any changes in the individuals composing
the partnership and the term "undersigned" shall include any altered or
successive partnerships but the predecessor partnerships shall not thereby be
released from any obligations or liability hereunder.
11. No delay on the part of Mezzanine Lender in exercising any right or
remedy under this Guaranty or failure to exercise the same shall operate as a
waiver in whole or in part of any such right or remedy. No notice to or demand
on the undersigned shall be deemed to be a waiver of the obligation of the
undersigned or of the right of Mezzanine Lender to take further action without
notice or demand as provided in this Guaranty.
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12. This Guaranty may only be modified, amended, changed or terminated by
an agreement in writing signed by Xxxxxxxxx Xxxxxx and the undersigned. No
waiver of any term, covenant or provision of this Guaranty shall be effective
unless given in writing by Mezzanine Lender and if so given by Mezzanine Lender
shall only be effective in the specific instance in which given.
13. The undersigned acknowledges that (a) this Guaranty and the
undersigned's obligations under this Guaranty are and shall at all times
continue to be absolute and unconditional in all respects, and (b) the
undersigned's obligations under this Guaranty are and shall at all times be
valid and enforceable irrespective of (i) any other agreements or circumstances
of any nature whatsoever which might otherwise constitute a defense to this
Guaranty and the obligations of the undersigned under this Guaranty or the
obligations of Mezzanine Borrower or any other Person relating to this Guaranty
or the obligations of the undersigned hereunder or otherwise with respect to the
Mezzanine Loan, including, but not limited to, the realization by Xxxxxxxxx
Lender upon any collateral given, pledged or assigned as security for all or any
portion of the Indebtedness or for the payment and performance of the
Indebtedness, or the filing of a petition or the commencement of a case with
respect to Mezzanine Borrower or the undersigned under Title 11 of the United
States Code, as now constituted or hereafter amended (the "Bankruptcy Code"), or
under any other applicable Federal or state bankruptcy, insolvency or similar
law, or the obtaining by Mezzanine Lender of title to any collateral given,
pledged or assigned as security for the Indebtedness or for the payment and
performance of the Indebtedness, by foreclosure or exercise of power of sale or
enforcement of Mezzanine Lender's lien thereon, acceptance of an assignment or a
deed in lieu of foreclosure or sale, or otherwise, or (ii) any modification,
impairment, abatement, reduction, release, limitation, restructure,
reinstatement or cure, in whole or part, of interest, principal or other sum
(including, without limitation, the Indebtedness) payable by Mezzanine Borrower
under the Note, the Mezzanine Loan Agreement or the other Mezzanine Loan
Document or of any other obligation of Mezzanine Borrower under the Mezzanine
Loan Document pursuant to an order by a bankruptcy court or other court of
competent jurisdiction in any action, case or proceeding brought under the
Bankruptcy Code or under any other applicable Federal or state bankruptcy,
insolvency or similar law, it being expressly acknowledged and agreed by the
undersigned that if any such modification, impairment, abatement, reduction,
release, limitation, restructure, reinstatement or cure, in whole or part, is so
ordered in any such action, case or proceeding, the undersigned's obligations
under this Guaranty will nevertheless continue to be determined as if such order
had not been issued (i.e., as if Mezzanine Borrower remained obligated to pay
interest, principal and other sums and to otherwise perform and observe its
other obligations strictly in accordance with the terms, covenants and
provisions of the Note, the Mezzanine Loan Agreement and the other Mezzanine
Loan Document as in existence prior to the issuance of any such order). The
undersigned absolutely, unconditionally and irrevocably waives any and all right
to assert any defense, setoff, counterclaim or crossclaim of any nature
whatsoever with respect to this Guaranty
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or the obligations of the undersigned under this Guaranty or the obligations of
Mezzanine Borrower or any other Person relating to this Guaranty or the
obligations of the undersigned hereunder or otherwise with respect to the
Mezzanine Loan in any action, case or proceeding brought by Xxxxxxxxx Lender to
collect the Indebtedness, or any portion thereof, or to enforce the obligations
of the undersigned under this Guaranty (provided, however, that the foregoing
provisions of this sentence shall not be deemed a waiver of the right of the
undersigned to assert any compulsory counterclaim in any such action, case or
proceeding brought by Mezzanine Lender in any state court if such counterclaim
is compelled under local law or rule of procedure, or in any such action, case
or proceeding brought by Xxxxxxxxx Lender in a court of the United States, nor
shall the foregoing provisions of this sentence be deemed a waiver of the right
of the undersigned to assert any claim which would otherwise constitute a
defense, setoff, counterclaim or crossclaim of any nature whatsoever against
Mezzanine Lender in any separate action, case or proceeding brought by the
undersigned against Xxxxxxxxx Xxxxxx). The undersigned acknowledges that no oral
or other agreements, understandings, representations or warranties exist with
respect to this Guaranty or with respect to the obligations of the undersigned
under this Guaranty, except those specifically set forth in this Guaranty, and
that this Guaranty sets forth the entire agreement and understanding of
Mezzanine Lender and the undersigned.
14. EACH OF THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
AND MEZZANINE LENDER BY ITS ACCEPTANCE OF THIS GUARANTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CASE,
PROCEEDING, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE
RELATING TO THIS GUARANTY.
15. Notwithstanding any payments made by the undersigned pursuant to the
provisions of this Guaranty, until the Indebtedness has been irrevocably paid in
full, the undersigned shall not seek to enforce or collect upon any rights which
the undersigned now has or may acquire against Mezzanine Borrower either by way
of subrogation, indemnity, reimbursement or contribution for any amount paid
under this Guaranty, nor shall the undersigned file, assert or receive payment
on any claim, whether now existing or hereafter arising, against Mezzanine
Borrower subsequent to the commencement of a case by or against Mezzanine
Borrower under the Bankruptcy Code or under any other applicable Federal or
state bankruptcy, insolvency or similar law. The undersigned further agrees
that, to the extent the waiver of its rights of subrogation as set forth herein
is found by a court of competent jurisdiction to be void or voidable for any
reason, any rights of subrogation the undersigned may have against Mezzanine
Borrower or against any collateral or security shall be junior and subordinate
to any right Mezzanine Lender may have against Mezzanine Borrower and to all
right, title and interest Mezzanine Lender may have in any collateral or
security.
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16. In the event an action, case or proceeding is filed or commenced under
the Bankruptcy Code or under any other applicable Federal or state bankruptcy,
insolvency or similar law in regard to Mezzanine Borrower or an action, case or
proceeding is otherwise commenced for the benefit of the creditors of Mezzanine
Borrower, this Guaranty shall at all times thereafter remain effective in regard
to any payments or other Transfers of assets to Mezzanine Lender received from
or on behalf of Mezzanine Borrower which are held voidable on the grounds of
preference, fraudulent conveyance or otherwise, whether or not the Indebtedness
has been paid in full.
17. If at any time any payment, or portion thereof, made by, or for the
account of, the undersigned on account of the obligations under this Guaranty,
is set aside by any court or trustee having jurisdiction as a voidable
preference, fraudulent conveyance or otherwise as being subject to avoidance or
recovery under the provisions of the Bankruptcy Code or under any other
applicable Federal or state bankruptcy, insolvency or similar law, the
undersigned hereby agrees that this Guaranty (a) shall continue and remain in
full force and effect, or (b) if previously terminated as a result of the
undersigned having fulfilled the undersigned's obligations hereunder in full or
as a result of Mezzanine Lender having released the undersigned from the
undersigned's obligations and liabilities hereunder, shall without further act
or instrument be reinstated and shall thereafter remain in full force and
effect, in either case with the same force and effect as though such payment or
portion thereof had not been made, and if applicable, as if such previous
termination had not occurred.
18. Any notice, request, demand, statement, authorization, approval or
consent given or made hereunder shall only be effective if in writing and sent
by (a) hand delivery, with proof of attempted delivery, (b) certified or
registered United States mail, postage prepaid, (c) expedited prepaid delivery
service, either commercial or United States Postal Service, with proof of
attempted delivery, or (d) by telecopier (with answer back acknowledged)
provided that such telecopied notice must also be delivered by one of the means
set forth in (a), (b) or (c) above, addressed to:
If to the undersigned:
Xxxxx X. Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Xxxx Xxxxxxxx
0000 Xxxxxxxxx
Xxxxxx, Xxxxx 00000
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Xxxxx Xxxxxx, Xx.
0000 Xxxxxx Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
Xxxxx X. Xxxxxxxxxxx
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxx 000
Xxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxx, XX
0000 Xxxxxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Xxxxxx X. Xxxxx
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
With a copy to:
Xxxx, Xxxx, Xxxxxxx, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
If to Lender:
Xxxx-Xxxx Property Trust
c/o Xxxx-Xxxx Realty Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
With a copy to:
Xxxx, Xxxxxxxx, Xxxxxxxx & Xxxxxx, LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx, Esq.
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Each party to this Guaranty may designate a change of address by notice given to
the other party fifteen (15) days prior to the date such change of address is to
become effective.
19. This Guaranty is, and shall be deemed to be, a contract entered into
under and pursuant to the laws of the State of New Jersey and shall be in all
respects governed, construed, applied and enforced in accordance with the laws
of the State of New Jersey without giving effect to principles of conflicts of
laws. No defense given or allowed by the laws of any other state or country
shall be interposed in any action, case or proceeding hereon unless such defense
is also given or allowed by the laws of the State of New Jersey.
20. The undersigned agrees to submit to non-exclusive personal
jurisdiction in the State of New Jersey in any action, case or proceeding
arising out of this Guaranty and, in furtherance of such agreement, the
undersigned hereby agrees and consents that without limiting other methods of
obtaining jurisdiction, personal jurisdiction over the undersigned in any such
action, case or proceeding may be obtained within or without the jurisdiction of
any court located in New Jersey and that any process or notice of motion or
other application to any such court in connection with any such action, case or
proceeding may be served upon the undersigned by registered or certified mail to
or by personal service at the last known address of the undersigned, whether
such address be within or without the jurisdiction of any such court. The
undersigned also agrees that the venue of any litigation arising in connection
with the Indebtedness or in respect of any of the obligations of the undersigned
under this Guaranty shall, to the extent permitted by law, be in Essex County in
the State of New Jersey.
21. No exculpatory provisions contained in the Mezzanine Loan Agreement,
the Note or any of the other Mezzanine Loan Documents shall in any event or
under any circumstance be deemed or construed to modify, qualify, or affect in
any manner whatsoever the personal recourse obligations and liabilities of the
undersigned under this Guaranty.
22. The obligations and liabilities of the undersigned under this Guaranty
are in addition to the obligations and liabilities of the undersigned under any
Other Guaranties (as hereinafter defined). The discharge of the undersigned's
obligations and liabilities under any one or more of the Other Guaranties by the
undersigned or by reason of operation of law or otherwise shall in no event or
under any circumstance constitute or be deemed to constitute a discharge, in
whole or in part, of the undersigned's obligations and liabilities under this
Guaranty. Conversely, the discharge of the undersigned's obligations and
liabilities under this Guaranty by the undersigned or by reason of operation of
law or otherwise shall in no event or under any circumstance constitute or be
deemed to constitute a discharge, in whole or in part, of the undersigned's
obligations and liabilities under any of the Other Guaranties. The term "Other
Guaranties" as used herein shall mean any other guaranty of payment, guaranty of
performance, completion
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guaranty, indemnification agreement or other guaranty or instrument of personal
recourse obligation or undertaking of any nature whatsoever (other than this
Guaranty) now or hereafter executed and delivered by the undersigned to
Mezzanine Lender in connection with the Mezzanine Loan.
23. 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 listed below to execute this Guaranty, or any counterpart
hereof, shall not relieve the other signatories from their obligations
hereunder.
(Signatures on Next Page)
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IN WITNESS WHEREOF, the undersigned have duly executed this Guaranty as a
sealed instrument the day and year first above set forth.
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx Xxxxxxxx
-----------------------------------
Xxxx Xxxxxxxx
/s/ Xxxxx Xxxxxx, Xx.
-----------------------------------
Xxxxx Xxxxxx, Xx.
/s/ Xxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxxxx
/s/ Xxxxxx X. Xxxx, XX
-----------------------------------
Xxxxxx X. Xxxx, XX
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
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