Exhibit 1.01-A
AMENDED AND RESTATED GUARANTY
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THIS AMENDED AND RESTATED GUARANTY is dated as of the 21st day
of November, 1996, by Weingarten/Xxxxxx, Inc., Weingarten Nostat Inc.
(formerly known as Weingarten/Arkansas, Inc.), Xxxxxxxxxx Realty Management
Company, and WRI/Post Oak, Inc., each a Texas corporation (each of the
foregoing, a "Guarantor", and collectively, the "Guarantors"), to TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, a national banking association as Agent
(the "Agent"), under the Credit Agreement (as defined below) for itself and
for the Banks which are parties to the Credit Agreement.
W I T N E S S E T H:
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WHEREAS, Xxxxxxxxxx Realty Investors, a Texas real estate investment
trust (the "Trust"), Agent and the certain of the Banks entered into that
certain Credit Agreement, dated as of November 22, 1994 (the " Original Credit
Agreement"), which Credit Agreement was guaranteed by each Guarantor under a
Guaranty dated as of even date therewith (the "Original Guaranty");
WHEREAS, the Original Credit Agreement has been amended and
restated as of even date herewith, and each Guarantor has agreed to restate
its guaranty of the obligations of the Trust under the Amended and Restated
Credit Agreement (as amended from time to time, the "Credit Agreement") dated
as of even date herewitih, by and among the Trust, the Agent, and the Banks
which are parties thereto, including certain new Banks which were not parties
to the Original Credit Agreement;
WHEREAS, each Guarantor is a wholly-owned subsidiary of the Trust
and will receive substantial benefits from the Credit Agreement, and in
consideration therefor, the Guarantor has agreed to guarantee the obligations
of the Trust under, and performance by the Trust of its cov-enants,
agreements, representations and warranties pursuant to the terms of, the
Credit Agreement and the promissory notes issued to the Banks pursuant thereto
(the "Notes") and to make and perform the covenants and agree-ments set forth
herein;
NOW, THEREFORE, as an inducement for the Banks to execute and
deliver the Credit Agreement and for other valu-able consideration, including,
but not limited to, the direct and indirect benefits flowing to each Guarantor
as a result of the execution and delivery of the Credit Agreement, each
Guar-antor agrees as follows:
Each Guarantor hereby absolutely, uncondition-ally and
irrevocably guarantees to the Banks, jointly and severally with all other
Guarantors, the full perfor-xxxxx and observance of all of the Trust's
covenants, agreements, representations and warranties (collectively the
"Performance Obligations") set forth in the Credit Agreement, the Notes, any
Interest Rate Agreement and all other Loan Documents.
Each Guarantor hereby absolutely unconditionally and
irrevocably guarantees payment to the Banks of all indebtedness and
obligations due to the Banks, by acceleration or otherwise, of the Trust
arising under the Credit Agreement, the Notes, the Interest Rate Agreements
and all other Loan Documents, whether such indebtedness is liquidated or
unliquidated, fixed or contingent, now owing or hereafter arising
(collectively the "Payment Obligations" and together with the Performance
Obligations, herein referred to as the "Obligations").
This is a guaranty of payment and not of collection. The
Agent, on behalf of and at the instruction of the Banks may enforce such
guaranty, or any part thereof, against any Guarantor without first exercising
rights against the Trust or any other Guarantor. Each Guarantor hereby waives
any rights to require the Agent or the Banks to pursue the Trust before
enforcing the obligations of each Guarantor hereunder.
Each Guarantor guarantees that the Obligations will be paid
strictly in accordance with the terms of the Credit Agreement, the Notes, any
Interest Rate Agreements and all other Loan Documents and any other agreement
or instrument executed in connection therewith, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of the Banks with respect thereto. The
liability of each Guarantor under this Guaranty shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of or defect or
deficiency in the Credit Agreement, the Notes, any Interest Rate Agreement,
any of the other Loan Documents or any other agreement or instrument executed
in connection with or pursuant to any such Loan Document;
(b) any change in the time, manner, terms or place of payment of, or
in any other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to departure from the Credit Agreement, the Notes,
any Interest Rate Agreement, any of the other Loan Documents, or any other
agreement or instrument executed in connection with or pursuant to any Loan
Document;
(c) any sale, exchange, release or non-perfection of any property
standing as security for the liabilities hereby guaranteed or any liabilities
incurred directly or indirectly hereunder or any setoff against any of said
liabilities, or any release or amendment or waiver of or consent to departure
from any other guaranty, for all or any of the Obligations; or
(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Trust or any other Person that is
a party to any Loan Document (including any other guarantors) in respect of
the Obligations.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned by any Bank upon the insolvency, bankruptcy or
reorganization of the Trust, or any Guarantor or otherwise, all as though such
payment had not been made. The enforceability of the obligations of each
Guarantor under this Guaranty shall not be affected by the amount of credit
extended to the Trust, any repayment by the Trust to the Banks (other than the
full and final payment of all of the Obligations), allocation by the Banks of
any repayment, any compromise or discharge of the Obligations, any
application, release or substitution of collateral or other security therefor,
release of any Guarantor, surety or other Person obligated in connection with
the Loan Documents, or any further advances to the Trust, or for any other
reason.
This is a continuing Guaranty, and all extensions of credit and
financial accommodations heretofore, concurrently herewith or hereafter made
by the Banks to the Trust and all indebtedness of the Trust now owned or
hereafter acquired by the Banks in connection with the transactions
contemplated under the Credit Agreement shall be conclusively presumed to have
been made or acquired in acceptance hereof.
Each Guarantor hereby waives (i) notice of acceptance of this
Guaranty and of presentment, demand and protest; (ii) notice of any default
hereunder or under the Credit Agreement, the Notes, the Interest Rate
Agreements or any other Loan Document, and of all indulgences; (iii) demand
for observance or perfor-xxxxx of, or enforcement of, any terms or provisions
of this Guaranty or the Credit Agreement, the Notes, the Interest Rate
Agreements or any other Loan Document; (iv) notice of intent to accelerate and
notice of accel-eration; and (v) any right of subrogation under this Guaranty,
until payment in full of the Obligations. Should the Agent or the Banks seek
to enforce the obligations of any Guarantor hereunder by action in any court,
each Guarantor waives any necessity, substantive or procedural, that a
judgment previously be rendered against the Trust, any other Guarantor or any
other Person, or that any action be brought against the Trust, any other
Guarantor or any other Person, or that the Trust, any other Guarantor or any
other Person should be joined in such cause. Such waiver shall be without
prejudice to the Banks at their option to proceed against the Trust, any other
Guarantor or any other Person, whether by separate action or by joinder.
The obligations of each Guarantor hereunder are several from
the Trust or any other Person, and are primary obligations concerning which
each Guarantor is a principal obligor. Each Guarantor agrees that this
Guaranty shall not be discharged except by complete performance of the
obligations of the Trust under the Notes, the Credit Agreement, the Interest
Rate Agreements and any other Loan Document to which the Trust is a party and
the obligations of the Guarantor hereunder. The obligations of the Guarantor
hereunder shall not be affected in any way by any receivership, insolvency,
bankruptcy or other proceedings affecting the Trust or any of the Trust's
assets, or the release or discharge of the Trust from the performance of any
obligation contained in any promissory note or other instrument issued in
connection with, evidencing or securing any indebtedness guaranteed by this
instrument, whether occurring by reason of law or any other cause, whether
similar or dissimilar to the foregoing.
Each Guarantor hereby represents and warrants as follows:
(a) Each Guarantor has received, or will receive, direct or
indirect benefit from the making of this Guaranty.
(b) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority is required for the due
execution, delivery and performance by each Guarantor of this Guaranty and the
other documents and instruments executed in connection therewith, all of which
have been duly obtained or made and are in full force and effect.
(c) This Guaranty is, and all other documents and instruments
executed in connection therewith, when delivered will be, legal, valid and
binding obligations of each Guarantor, enforceable against such Guarantor in
accordance with their respective terms, except as such enforceability may be
(i) limited by the effect of any applicable Debtor Laws and (ii) subject to
the effect of general principles of equity.
(d) Each Guarantor's execution, delivery and performance of this
Guaranty does not require the consent or approval of any other Person.
No amendment or waiver of any provision of this Guaranty nor
consent to any departure by any Guarantor therefrom shall in any event be
effective unless the same shall be in writing and signed by the Banks, and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
All notices and other communications provided for hereunder
shall be in writing (including telex or facsimile communication) and shall be
effective when actually delivered, or in the case of telex notice, when sent,
answerback received, or in the case of telefacsimile transmission, when
received and telephonically confirmed, addressed as follows: if to any
Guarantor, at its address set forth on the signature page hereof, with a copy
to Dow, Xxxxxxx & Xxxxxxxx, P.C., 0 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000, Attention: Xx. Xxxxxx Xxx; if to the Agent or any Bank, at the address
for the Agent or such Bank, as the case may be, set forth in the Credit
Agreement, or, as to each party, at such other address as shall be designated
by such party in a written notice to the other party.
No failure on the part of the Agent or any 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.
Each Guarantor agrees to pay on demand all costs and expenses
in connection with the preparation, execution, delivery, modification, waiver
and amendment of this Guaranty and any of the documents or instruments
evidencing the Obligations and any other agreements or documents delivered in
connection with any of the Obligations, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Agent and each
Bank with respect thereto and with respect to advising the Agent and each Bank
as to its rights and responsibilities under this Guaranty and the other Loan
Documents; provided that, fees of counsel for the Agent and the Banks for work
performed in connection with the preparation, execution and delivery of this
Guaranty and the other Loan Documents on the Closing Date and all other work
described in this sentence performed on or prior to the Closing Date (together
with routine post-closing matters, such as preparation and delivery of Closing
packages), shall not exceed $_______. In the event of the occurrence of a
Default, each Guarantor further agrees to pay on demand, all costs and
expenses, if any (including reasonable counsel fees and expenses), in
connection with the enforcement of this Guaranty (whether through
negotiations, legal proceedings or otherwise) and the other Loan Documents.
The agreements of each Guarantor contained in this Section 12 shall survive
the payment of all other amounts owing hereunder or under any of the other
obligations.
Should any clause, sentence, paragraph, subsection or Section
of this Guaranty be judicially declared to be invalid, unenforceable or void,
such decision will not have the effect of invalidating or voiding the
remainder of this Guaranty, and the parties hereto agree that the part or
parts of this Guaranty so held to be invalid, unenforceable or void will be
deemed to have been stricken herefrom and the remainder will have the same
force and effectiveness as if such part or parts had never been included
herein.
This Guaranty is a continuing guaranty and shall (a) remain in
full force and effect until payment in full of the Obligations and all other
amounts payable under this Guaranty; (b) be binding upon each Guarantor, its
successors and assigns; and (c) inure to the benefit of and be enforceable by
the Agent and the Banks and their respective successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), the
Agent and the Banks may assign or otherwise transfer the Notes to any other
Person in accordance with the terms and provisions set forth in Section 10.08
of the Credit Agreement, and such other Person shall thereupon become vested
with all the rights and benefits in respect thereof granted to the Agent and
the Banks herein or otherwise.
Notwithstanding anything contained in any of the Loan Documents
executed by each Guarantor to the contrary, the maximum aggregate liability of
each Guarantor under this Guaranty shall be limited to the Maximum Guaranteed
Amount (as hereinafter defined) determined with respect to such Guarantor as
and when provided in the definition of Maximum Guaranteed Amount.
"Adjusted Net Worth" means, with respect to any Guarantor, on the Closing
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Date and on any date which payment by the Guarantor in respect of the
Obligations is required to be made under the terms of this Guaranty (each such
date a "Calculation Date"), the excess of (i) the amount of the "present fair
saleable value" of the "assets" of such Guarantor as of such Calculation Date,
over (ii) the amount of all "liabilities" (other than the Obligations) of such
Guarantor, whether matured or unmatured, liquidated or unliquidated, absolute,
fixed or contingent, as determined on such Calculation Date, as such quoted
terms are determined in accordance with applicable laws governing fraudu-lent
conveyances and transfers and determinations of the insolvency of debtors.
"Maximum Guaranteed Amount" means, on any Calculation Date, the greater
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of (i) ninety-five percent (95%) of the Adjusted Net Worth of each Guarantor,
on the Closing Date immediately after the consumma-tion of the transactions
contemplated hereby or (ii) ninety-five percent (95%) of the Adjusted Net
Worth of the Guarantor on such other Calculation Date.
GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
SUBMISSION TO JURISDICTION; WAIVERS. EACH GUARANTOR
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IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE
NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF TEXAS, THE
COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF TEXAS, AND
APPELLATE COURTS FROM ANY THEREOF;
(b) WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT IN XXXXXX COUNTY,
TEXAS OR THAT SUCH PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES
NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH LEGAL ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING OF A COPY THEREOF (BY REGISTERED OR
CERTIFIED MAIL OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL POSTAGE PREPAID) TO
THE ADDRESS SET FORTH IN SECTION 10. HEREOF OR AT SUCH OTHER ADDRESS OF WHICH
THE OTHER PARTIES HERETO SHALL HAVE BEEN NOTIFIED IN WRITING PURSUANT TO
SECTION 10.
FINAL AGREEMENT. THIS WRITTEN GUARANTY, THE NOTES AND THE
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CREDIT AGREEMENT REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
All terms used herein and not otherwise defined herein shall have
the meanings assigned to them in the Credit Agreement.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
duly executed by its respective officer thereunto duly authorized, as of the
date first above written.
GUARANTOR:
WEINGARTEN/XXXXXX, INC.
By: /S/ XXXXXX XXXXXXX XXXXXXXXX, XX.
Name: Xxxxxx Xxxxxxx Xxxxxxxxx, Xx.
Title: Executive Vice President
WEINGARTEN/NOSTAT INC.
By: /S/ XXXXXX XXXXXXX XXXXXXXXX, XX.
Name: Xxxxxx Xxxxxxx Xxxxxxxxx, Xx.
Title: Executive Vice President
XXXXXXXXXX REALTY MANAGEMENT
COMPANY
By: /S/ XXXXXX XXXXXXX XXXXXXXXX, XX.
Name: Xxxxxx Xxxxxxx Xxxxxxxxx, Xx.
Title: Executive Vice President
WRI/POST OAK, INC.
By: XXXXXX XXXXXXX XXXXXXXXX, XX.
Name: Xxxxxx Xxxxxxx Xxxxxxxxx, Xx.
Title: Executive Vice President
