EXHIBIT 99.4
EXHIBIT L
to
Second Amended and Restated Credit Agreement
dated as of December __, 2002
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FORM OF GUARANTY
GUARANTY AGREEMENT
UNCONDITIONAL GUARANTY OF PAYMENT (this "GUARANTY"), is made as of
December __, 2002 by ____________________________________ (the "GUARANTOR"), in
favor of JPMORGAN CHASE BANK, as administrative agent and XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as syndication agent (collectively, "AGENTS") for the
benefit of the banks (the "LENDERS") that are from time to time parties to that
certain Second Amended and Restated Credit Agreement (the "CREDIT AGREEMENT"),
dated as of December __, 2002, among Reckson Operating Partnership, L.P., the
Lenders and the Agents.
Capitalized terms not otherwise defined in this Guaranty shall have the
meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Credit Agreement, Reckson
Operating Partnership, L.P. (the "BORROWER") requested that the Lenders make
Loans to and issue Letters of Credit for the account of the Borrower, to be
guaranteed by Guarantor and to be evidenced by certain Promissory Notes (the
"NOTES"), each dated as of December __, 2002, in the aggregate principal amount
of $470,000,000, payable by the Borrower to the order of the Lenders;
WHEREAS, this Guaranty is one of the "GUARANTIES" referred to in the
Credit Agreement;
WHEREAS, the Guarantor is [a wholly-owned subsidiary of the Borrower];
WHEREAS, (i) the obligations of the Guarantor under this Guaranty are
necessary or convenient to the conduct, promotion or attainment of the business
of the Guarantor, and (ii) the Guarantor will receive consideration, including
access to the financing to be provided under the Credit Agreement, for the
issuance of this Guaranty; and
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WHEREAS, in order to induce the Agents and the Lenders to make the
Loans to and to issue Letters of Credit for the account of the Borrower, and to
satisfy one of the conditions contained in the Credit Agreement with respect
thereto, the Guarantor has agreed to enter into this Guaranty.
NOW THEREFORE, in consideration of the premises and the direct and
indirect benefits to be derived from the making of the Loans and other
extensions of credit by the Lenders to the Borrower, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Guarantor hereby agrees as follows:
1. (a) Guarantor, on behalf of itself and its successors and assigns,
hereby irrevocably, absolutely, and unconditionally guarantees the full and
punctual payment when due, whether at stated maturity or otherwise, of all
obligations of the Borrower now or hereafter existing under the Credit
Agreement, under the Notes, under any Letter of Credit or Letter of Credit
Reimbursement Agreement or under any of the other Loan Documents to which the
Borrower is a party; and
(b) Guarantor, on behalf of itself and its successors and
assigns, hereby irrevocably, absolutely, and unconditionally guarantees the full
and punctual payment when due of any and all reasonable costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
incurred by the Agents and the Lenders in enforcing their rights under this
Guaranty (all such obligations set forth in this Paragraph 1 being referred to
as the "GUARANTEED OBLIGATIONS").
2. It is agreed that the obligations of Guarantor hereunder are primary
and this Guaranty shall be enforceable against Guarantor and its successors and
assigns without the necessity for any suit or proceeding of any kind or nature
whatsoever brought by the Agents or the Lenders against the Borrower, or its
respective successors or assigns or any other party or against any security for
the payment and performance of the Guaranteed Obligations and, to the extent
permitted by applicable law, without the necessity of any notice of non-payment
or non-observance or of any notice of acceptance of this Guaranty or of any
notice or demand to which Guarantor might otherwise be entitled (including,
without limitation, diligence, presentment, notice of maturity, extension of
time, change in nature or form of the Guaranteed Obligations, acceptance of
further security, release of further security, imposition or agreement arrived
at as to the amount of or the terms of the Guaranteed Obligations, notice of
adverse change in the Borrower's financial condition or any other fact which
might materially increase the risk to Guarantor), all of which Guarantor, to the
extent permitted by applicable law, hereby expressly waives; and, to the extent
permitted by applicable law, Guarantor hereby expressly agrees that the validity
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of this Guaranty and the obligations of the Guarantor hereunder shall in no way
be terminated, affected, diminished, modified or impaired by reason of the
assertion of, or the failure to assert by the Agents or the Lenders against the
Borrower or its respective successors or assigns, any of the rights or remedies
reserved to the Agents and the Lenders pursuant to the provisions of the Loan
Documents. Guarantor hereby agrees that, to the extent permitted by applicable
law, any notice or directive given at any time to the Agents or the Lenders
which is inconsistent with the waiver in the immediately preceding sentence
shall be void and may be ignored by the Agents and the Lenders, and, in
addition, may not be pleaded or introduced as evidence in any litigation
relating to this Guaranty for the reason that such pleading or introduction
would be at variance with the written terms of this Guaranty, unless the Agents
have specifically agreed otherwise in writing, signed by a duly authorized
officer. Guarantor specifically acknowledges and agrees that the foregoing
waivers are of the essence of this transaction and that, but for this Guaranty
and such waivers, the Agents and the Lenders would not make the requested Loans
and other extensions of credit to the Borrower.
3. To the extent permitted by applicable law, Guarantor hereby waives,
and covenants and agrees that it will not at any time insist upon, plead or in
any manner whatsoever claim or take the benefit or advantage of, any and all
appraisal, valuation, stay, extension, marshalling-of-assets or redemption laws,
or right of homestead exemption, whether now or at any time hereafter in force,
which may delay, prevent or otherwise affect the performance by Guarantor of its
obligations under, or the enforcement by the Agents and the Lenders of, this
Guaranty. To the extent permitted by applicable law, Guarantor further covenants
and agrees not to set up or claim any defense, counterclaim, offset, set-off or
other objection of any kind to any action, suit or proceeding in law, equity or
otherwise, or to any demand or claim that may be instituted or made by the
Agents or the Lenders, other than the defense of the actual timely payment and
performance by the Borrower of the Guaranteed Obligations hereunder. Guarantor
represents, warrants and agrees that, as of the date hereof, its obligations
under this Guaranty are not subject to any counterclaims, offsets or defenses
against the Agents or the Lenders of any kind.
It is the intention and agreement of Guarantor, the Agents and the
Lenders that the obligations of Guarantor under this Guaranty shall be valid and
enforceable against Guarantor to the maximum extent permitted by applicable law.
Accordingly, if any provision of this Guaranty creating any obligation of
Guarantor in favor of the Agents and the Lenders shall be declared to be invalid
or unenforceable in any respect or to any extent, it is the stated intention and
agreement of Guarantor, the Agents and the Lenders that any balance of the
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obligation created by such provision and all other Guaranteed Obligations shall
remain valid and enforceable. Likewise, if by final order a court of competent
jurisdiction shall declare any sums which the Agents or the Lenders may be
otherwise entitled to collect from Guarantor under this Guaranty to be in excess
of those permitted under any law (including any federal or state fraudulent
conveyance or like statute or rule of law) applicable to Guarantor's obligations
under this Guaranty, it is the stated intention and agreement of Guarantor, the
Agents and the Lenders that all sums not in excess of those permitted under such
applicable law shall remain fully collectible by the Agents and the Lenders from
Guarantor. Nothing in the foregoing limits the covenant of the Borrower
contained in Section 9.12(b) of the Credit Agreement.
4. The provisions of this Guaranty are for the benefit of the Agents on
behalf of the Lenders and their successors and permitted assigns, and nothing
herein contained shall impair as among the Borrower, the Lenders and the Agents
the obligations of the Borrower under the Loan Documents.
5. This Guaranty shall be a continuing, unconditional (regardless of
any circumstances that might otherwise constitute a defense of the Guarantor or
the Borrower), irrevocable and absolute guaranty and, to the extent permitted by
applicable law, the liability of Guarantor hereunder shall in no way be
terminated, affected, modified, impaired or diminished by reason of the
happening, from time to time, of any of the following, although without notice
or the further consent of Guarantor:
(a) any assignment, amendment, modification or waiver of or
change in any of the terms, covenants, conditions or provisions of any
of the Guaranteed Obligations or the Loan Documents or the invalidity
or unenforceability of any of the foregoing; or
(b) any extension of time that may be granted by the Agents or
the Lenders to the Borrower, any guarantor, or their respective
successors or assigns; or
(c) any action which the Agents or the Lenders may take or
fail to take under or in respect of any of the Loan Documents or by
reason of any waiver of, or failure to enforce any of the rights,
remedies, powers or privileges available to the Agents or the Lenders
under this Guaranty or any of the other Loan Documents or available to
the Agents or the Lenders at law, in equity or otherwise, or any action
on the part of the Agents or the Lenders granting indulgence or
extension in any form whatsoever; or
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(d) any sale, exchange, release, or other disposition of any
property pledged, mortgaged or conveyed, or any property in which the
Agents and/or the Lenders have been granted a lien or security interest
to secure any indebtedness of the Borrower to the Agents and/or the
Lenders or any impairment of or failure to perfect any such lien or
security interest; or
(e) any release of any person or entity who may be liable in
any manner for the payment and collection of any amounts owed by the
Borrower to the Agents and/or the Lenders; or
(f) the application of any sums by whomsoever paid or however
realized to any amounts owing by the Borrower to the Agents and/or the
Lenders under the Loan Documents in such manner as the Agents and the
Lenders shall determine in their sole discretion; or
(g) the Borrower's or any guarantor's voluntary or involuntary
liquidation, dissolution, sale of all or substantially all of their
respective assets and liabilities, appointment of a trustee, receiver,
liquidator, sequestrator or conservator for all or any part of the
Borrower's or any guarantor's assets, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment, or the commencement of other similar
proceedings affecting the Borrower or any guarantor or any of the
assets of any of them, including, without limitation, (i) the release
or discharge of the Borrower or any guarantor from the payment and
performance of its respective obligations under any of the Loan
Documents by operation of law, or (ii) the impairment, limitation or
modification of the liability of the Borrower or any guarantor in
bankruptcy, or of any remedy for the enforcement of the Guaranteed
Obligations under any of the Loan Documents, or Guarantor's liability
under this Guaranty, resulting from the operation of any present or
future provisions of the Bankruptcy Code or other present or future
federal, state or applicable statute or law or from the decision in any
court; or
(h) any improper disposition by the Borrower of any Letter of
Credit or the proceeds of the Loans, it being acknowledged by Guarantor
that the Agents and the Lenders shall be entitled to honor any request
made by the Borrower for a disbursement of such proceeds and that the
Agents and the Lenders shall have no obligation to see the proper
disposition by the Borrower of such Letter of Credit or proceeds.
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0. Xxxxxxxxx hereby agrees that if at any time all or any part of any
payment at any time received by the Agents or the Lenders from the Borrower
under any of the Notes or other Loan Documents or Guarantor under or with
respect to this Guaranty is or must be rescinded or returned by the Agents or
the Lenders for any reason whatsoever (including, without limitation, the
insolvency, bankruptcy or reorganization of the Borrower or Guarantor or any
other guarantor), then Guarantor's obligations hereunder shall, to the extent of
the payment rescinded or returned, be deemed to have continued in existence
notwithstanding such previous receipt by the Agents or the Lenders, and
Guarantor's obligations hereunder shall continue to be effective or reinstated,
as the case may be, as to such payment, as though such previous payment to the
Agents or the Lenders had never been made.
7. Until this Guaranty is terminated pursuant to the terms hereof, the
Guarantor (i) shall have no right of subrogation against the Borrower or any
entity comprising same by reason of any payments or acts of performance by
Guarantor in compliance with the obligations of Guarantor hereunder; (ii) hereby
waives any right to enforce any remedy which Guarantor now or hereafter shall
have against the Borrower, or any entity comprising the same, by reason of any
one or more payment or acts of performance in compliance with the obligations of
Guarantor hereunder; and (iii) shall subordinate any liability or indebtedness
of the Borrower or any entity comprising same now or hereafter held by Guarantor
to the obligations of the Borrower, as applicable, under the Loan Documents;
provided that nothing contained herein shall limit the right of the Guarantor to
receive any amount from the Borrower, as applicable, or any entity comprising
the same that is not prohibited by the terms of the Loan Documents.
8. Guarantor hereby represents and warrants on its own behalf to the
Agents with the knowledge that the Agents and the Lenders are relying upon the
same, as follows:
(a) as of the date hereof, Guarantor is a wholly-owned
subsidiary of the Borrower, and Guarantor is familiar with the
financial condition of Borrower;
(c) based upon such relationship, Guarantor has determined
that it is in its best interest to enter into this Guaranty;
(d) this Guaranty is necessary and convenient to the conduct,
promotion and attainment of Guarantor's business, and is in furtherance
of Guarantor's business purposes;
(e) the benefits to be derived by Guarantor from the
Borrower's access to funds made possible by the Loan Documents are at
least equal to the obligations of Guarantor undertaken pursuant to this
Guaranty;
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(f) Guarantor is Solvent and has full corporate, partnership,
limited liability company or trust power, as the case may be, and legal
right to enter into this Guaranty and to perform its obligations under
the terms hereof and (i) Guarantor is organized or formed and validly
existing under the laws of the state of its establishment or formation,
(ii) Guarantor has complied with all provisions of applicable law in
connection with all aspects of this Guaranty, and (iii) the person
executing this Guaranty on behalf of Guarantor has all the requisite
power and authority to execute and deliver this Guaranty; and
(g) this Guaranty has been duly executed by Guarantor and
constitutes the legal, valid and binding obligation of Guarantor,
enforceable against it in accordance with its terms except as
enforceability may be limited by applicable insolvency, bankruptcy or
other laws affecting creditors' rights generally or general principles
of equity whether such enforceability is considered in a proceeding in
equity or at law.
9. Guarantor and the Agents acknowledge and agree that this Guaranty is
a guaranty of payment and not of collection and enforcement in respect of any
obligations which may accrue to the Agents and/or the Lenders from the Borrower
under the provisions of any Loan Document.
10. Subject to the terms and conditions of the Credit Agreement, and
only in conjunction with a transfer permitted thereunder, the Agents and the
Lenders may assign any or all of their respective rights under this Guaranty.
11. Guarantor agrees, upon the written request of the Agents, to
execute and deliver to the Agents, from time to time, any modification or
amendment hereto or any additional instruments or documents reasonably
considered necessary by the Agents or its counsel to cause this Guaranty to be,
become or remain valid and effective in accordance with its terms or in order to
implement more fully the intent of this Guaranty, provided, that, any such
modification, amendment, additional instrument or document shall not increase
Guarantor's obligations or diminish its rights hereunder and shall be reasonably
satisfactory as to form to Guarantor and to Guarantor's counsel.
12. The representation and warranties of the Guarantor set forth in
this Guaranty shall survive until this Guaranty shall terminate in accordance
with the terms hereof and shall be deemed repeated on the date of each extension
of credit under the Credit Agreement.
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13. This Guaranty together with the Credit Agreement and the other Loan
Documents contains the entire agreement among the parties with respect to the
Loans and other extensions of credit being made to the Borrower, and supersedes
all prior agreements relating to such Loans and other extensions of credit and
may not be modified, amended, supplemented or discharged except by a written
agreement signed by Guarantor and the Agents (acting with the requisite consent
of the Lenders as provided in the Credit Agreement).
14. If all or any portion of any provision contained in this Guaranty
shall be determined to be invalid, illegal or unenforceable in any respect for
any reason, such provision or portion thereof shall be deemed stricken and
severed from this Guaranty and the remaining provisions and portions thereof
shall continue in full force and effect.
15. In order for any demand, request or notice to the respective
parties hereto to be effective, such demand, request or notice shall be given,
in writing, by delivering the same personally or by nationally recognized
overnight courier service or by mailing, by certified or registered mail,
postage prepaid or by telecopying the same, addressed to such party at the
address set forth below or to such other address as may be identified by any
party in a written notice to the others. Any such demand, request or notice sent
as aforesaid shall be deemed to have been received by the party to whom it is
addressed upon delivery, if personally delivered and on the actual receipt
thereof, if sent by certified or registered mail or by telecopier, and when
transmitted, if sent by telex:
If to
Guarantor: __________________________
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
With Copies of
Notices to the
Guarantor to: Fried Xxxxx Xxxxxx
Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx, Esq.
Telecopy: (000) 000-0000
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If to the Agents: JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
With Copies to: Xxxxxxx XxXxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
16. This Guaranty shall be binding upon Guarantor and its successors
and assigns and shall inure to the benefit of the Agents and the Lenders and
their successors and assigns. This Guaranty shall not be assigned except in
accordance with the terms and provisions set forth in the Credit Agreement,
including, without limitation, Section 14.16 thereof, as if references therein
to "Borrower" were references to the Guarantor.
17. The failure of the Agents to enforce any right or remedy hereunder,
or promptly to enforce any such right or remedy, shall not constitute a waiver
thereof, nor give rise to any estoppel against the Agents or the Lenders, nor
excuse Guarantor from its obligations hereunder. Any waiver of any such right or
remedy to be enforceable against the Agents must be expressly set forth in a
writing signed by the Agents (acting with the requisite consent of the Lenders
as provided in the Credit Agreement).
18. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
(b) Any legal action or proceeding with respect to this
Guaranty and any action for enforcement of any judgment in respect thereof may
be brought in the courts of the State of New York or of the United States of
America for the Southern District of New York, and, by execution and delivery of
this Guaranty, Guarantor hereby accepts for itself and in respect of its
property, generally and unconditionally, the nonexclusive jurisdiction of the
aforesaid courts and appellate courts from any thereof. Guarantor irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to Guarantor at the address for notices set
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forth herein. Guarantor hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty brought in the
courts referred to above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Nothing herein shall
affect the right of the Agents and the Lenders to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against Guarantor in any other jurisdiction.
(c) GUARANTOR AND AGENTS BY THEIR EXECUTION HEREOF AND THE
LENDERS' ACCEPTANCE HEREOF EACH HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY
AND ALL CLAIMS OR CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY.
IT IS HEREBY ACKNOWLEDGED BY GUARANTOR THAT THE WAIVER OF A JURY TRIAL IS A
MATERIAL INDUCEMENT FOR THE AGENTS TO ACCEPT THIS GUARANTY AND THAT THE LOANS
MADE BY THE LENDERS ARE MADE IN RELIANCE UPON SUCH WAIVER. GUARANTOR FURTHER
WARRANTS AND REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY
MADE, FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION,
THIS GUARANTY MAY BE FILED BY THE AGENTS IN COURT AS A WRITTEN CONSENT TO A
NON-JURY TRIAL.
(d) Guarantor does hereby further covenant and agree to and
with the Agents that Guarantor may be joined in any action against the Borrower
in connection with the Loan Documents and that recovery may be had against
Guarantor in such action or in any independent action against Guarantor (with
respect to the Guaranteed Obligations), without the Agents or the Lenders first
pursuing or exhausting any remedy or claim against the Borrower, its successors
or assigns. Guarantor also agrees that, in an action brought with respect to the
Guaranteed Obligations in any jurisdiction, it shall be conclusively bound by
the judgment in any such action by the Agents (wherever brought) against the
Borrower, or its successors or assigns, as if Guarantor were a party to such
action, even though Guarantor was not joined as parties in such action.
(e) Guarantor hereby agrees to pay all expenses (including,
without limitation, reasonable attorneys fees and disbursements) which may be
incurred by the Agents and the Lenders in connection with the enforcement of
their rights under this Guaranty, whether or not suit is initiated; provided,
however, that such expenses shall be paid by the Agents if a final judgment in
favor of Guarantor is rendered by a court of competent jurisdiction. Moreover,
Guarantor covenants and agrees to indemnify and save harmless the Agents and the
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Lenders of and from, and defend it against, all losses, out-of-pocket costs and
expenses, liabilities, damages or claims arising by reason of Guarantor's
failure to perform its obligations hereunder.
19. Subject to the terms of Section 6 hereof, this Guaranty shall
terminate and be of no further force or effect upon the full performance and
final payment of the Guaranteed Obligations hereunder. Upon termination of this
Guaranty in accordance with the terms of this Guaranty, the Agents promptly
shall deliver to Guarantor such documents as Guarantor or Guarantor's counsel
reasonably may request in order to evidence such termination.
20. All of the Agents' and the Lenders' rights and remedies under each
of the Loan Documents or under this Guaranty are intended to be distinct,
separate and cumulative and no such right or remedy therein or herein mentioned
is intended to be in exclusion of or a waiver of any other right or remedy
available to the Agents.
21. Recourse with respect to any claim arising under or in connection
with this Guaranty by Agents, the Arrangers and the Lenders shall be limited to
the same extent as is provided in Section 4.3(e) of the Credit Agreement with
respect to claims against the Guarantor and the other parties named therein and
the terms, covenants and conditions of Section 4.3(e) of the Credit Agreement
are hereby incorporated by reference as if fully set forth herein.
22. By executing and delivering this Guaranty, Guarantor hereby agrees
that it shall be bound by, and shall comply with, all warranties and covenants
applicable to it set forth in the Credit Agreement. [For Guaranty of Reckson
Associates Realty Corp., reference the covenants set out in Section 10.12 of the
Credit Agreement and add the following sentence: "The Borrower and the Guarantor
each acknowledge that, subject to the indefeasible payment and performance in
full of the Guaranteed Obligations, the rights of contribution among each of
them and the other guarantors are in accordance with applicable laws and in
accordance with each such party's benefits under the Credit Agreement and this
Guaranty."]
23. Guarantor shall make no claim against any Lender (acting in any
capacity under the Credit Agreement), any Arranger, the Administrative Agent, or
any other Person, or the Affiliates, directors, officers, employees, attorneys
or agents of any of them for any consequential or punitive damages in respect of
any claim for breach of contract or any other theory of liability arising out of
or related to the transactions contemplated by this Guaranty, or any act,
omission or event occurring in connection therewith; and Guarantor hereby
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waives, releases and agrees not to xxx upon any such claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.
IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be
duly executed and delivered as of the date first set forth above.
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By:
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Name:
Title:
