GUARANTY OF LEASE
Guaranty of Lease, dated as of June 28, 2001, by Fluor Corporation,
a Delaware corporation, herein, together with any entity succeeding thereto by
consolidation, merger or acquisition of its assets substantially as an entirety,
called "Guarantor".
Lakepointe Assets LLC, a Delaware limited liability company (herein
together with its successors and assigns as owner of the property hereinafter
described, called "Landlord"), is about to acquire the land described on
Schedule A hereto and the improvements located on said land (collectively, the
"Property") and to lease the Property to Fluor Enterprises, Inc., a California
corporation d/b/a Fluor Signature Services ("Tenant"), pursuant to a lease
between Landlord and Tenant dated as of June 28, 2001 (the "Lease"). Landlord is
unwilling to acquire the Property or enter into the Lease unless the Guarantor
enters into this agreement. Guarantor directly or indirectly owns all the stock
of Tenant. The acquisition by Landlord of the Property and the lease of the
Property to Tenant is of direct benefit to the Guarantor. This Guaranty
reasonably may be expected to benefit, directly or indirectly, Guarantor.
Capitalized terms not otherwise defined herein shall have the meanings given
them in the Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor, intending to be
legally bound, covenants and agrees with Landlord as follows:
1. The Guarantor unconditionally and irrevocably guarantees to
Landlord that (a) all Basic Rent, Additional Rent and all other sums stated in
the Lease to be payable by the Tenant, whether due by acceleration or otherwise,
including reasonable costs and expenses of collection (collectively, the
"Monetary Obligations") will be promptly paid in full when due, in accordance
with the provisions thereof, and (b) Tenant will perform and observe each and
every covenant, agreement, term and condition of Tenant in the Lease (the
"Performance Obligations"). If for any reason any Monetary Obligation shall not
be paid promptly when due, Guarantor shall, immediately upon demand, pay the
same to Landlord with interest due thereon as stated in the Lease. In addition
to the foregoing, the Guarantor hereby becomes surety to Landlord for the due
and punctual payment and performance of the Monetary Obligations and the
Performance Obligations and the Guarantor hereby waives all defenses of any
nature that may be available to Guarantor as a surety and guarantor or otherwise
other than the defenses of payment of the Monetary Obligations and performance
of the Performance Obligations.
2. Upon the occurrence of an Event of Default under the Lease,
Landlord may enforce this Guaranty without first having recourse against Tenant
or exhausting its rights or remedies under the Lease; provided, that nothing
herein shall prohibit Landlord from exercising its rights against both Guarantor
and Tenant simultaneously. Specifically, but without limitation, Guarantor
hereby waives joinder of Tenant or any other obligor in any suit or action to
enforce this Guaranty, and without in any way limiting the foregoing, Guarantor
hereby waives any right (including, without limitation, each right created by
the provisions of Chapter 34 of the Texas Business & Commerce Code, Chapter 17
of the Texas Civil Practice and Remedies Code, Rule 31 of the Texas Rules of
Civil Procedure or other applicable law) to require Landlord or any other party
entitled to enforce the obligations of Guarantor under this Guaranty to file
suit against Tenant or any other obligor or take any other action against Tenant
or any other obligor as a prerequisite to Landlord's or such other party's
taking any action or bringing any suit against Guarantor under this Guaranty.
This Guaranty and the obligations of the Guarantor hereunder are present,
primary, direct, continuing, unconditional, irrevocable and absolute and
independent of any obligations of Tenant. This Guaranty constitutes the
agreement to pay money and to act in the first instance and is not to be
construed as a contract of indemnity or as a guaranty of collectability.
3. The obligations, covenants, agreements and duties of the
Guarantor under this Guaranty shall in no way be discharged, affected or
impaired by any of the following and Landlord may at any time and from time to
time, with or without consideration, without prejudice to any claim against
Guarantor hereunder, without in any way changing, releasing or discharging
Guarantor from its liabilities and obligations hereunder and without notice to
or the consent of Guarantor waive, release or consent to any of the following:
(a) the waiver by Landlord of the performance or observance by
Tenant of any of the agreements, covenants, terms or conditions contained in
the Lease;
(b) the extension, in whole or in part, of the time for payment
by Tenant of any sums owing or payable under the Lease, or of any other sums or
obligations of Tenant under or arising out of or on account of the Lease, or the
renewal or extension of the Lease;
(c) any sublease of any or all of the Property by Tenant to any
other person;
(d) any assumption by any person of any or all of Tenant's
obligations under, or Tenant's assignment of any or all of its interest in the
Lease;
(e) the waiver or release or modification or amendment (whether
material or otherwise) of any provision of the Lease, and Guarantor hereby
consents to any such waivers, releases, modifications and amendments and to any
future terms or agreements heretofore or hereafter made by Landlord and Tenant
in accordance with the terms of the Lease, provided that Guarantor shall not be
responsible for any increase in the obligations of a tenant under the Lease
resulting solely from an amendment to the Lease made by a tenant which was not,
at the time of such amendment, an affiliate of Guarantor;
(f) any failure, omission or delay on the part of Landlord to
enforce, assert or exercise any right, power or remedy conferred on or available
to Landlord in or by the Lease or this Guaranty, or any action on the part of
Landlord granting indulgence or extension in any form whatsoever;
(g) the voluntary or involuntary liquidation, dissolution, sale
of all or substantially all of the assets, marshaling of assets and liabilities,
receivership, conservatorship, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization or other similar proceeding affecting
Landlord, Tenant or Guarantor or any of their assets or any impairment,
modification, release or limitation of liability of Landlord, Tenant or
Guarantor or any of their estates in bankruptcy or of any remedy for the
enforcement of such liability resulting from the operation of any present or
future provision of the U.S. Bankruptcy Code or other similar statute or from
the decision of any court;
(h) the power or authority or lack thereof of Tenant to execute,
acknowledge or deliver the Lease;
(i) the legality, validity or invalidity of the Lease;
(j) any defenses whatsoever that Tenant may or might have to the
payment of the Monetary Obligations except for the payment thereof actually
received by Landlord or at Landlord's direction, by Lessor's Mortgagee,
Guarantor acknowledging that the Tenant has agreed to pay the Monetary
Obligations under the Lease without setoff;
(k) the existence or non-existence of Tenant as a legal entity
or the existence or non-existence of any corporate or other business
relationship between Tenant and Guarantor;
(l) any sale or assignment by Landlord of this Guaranty and/or
the Lease (including any assignment by Landlord to Lessor's Mortgagee;
(m) any default by Guarantor under this Guaranty or any right of
setoff or counterclaim or defense (other than payment in full of the Monetary
Obligations in accordance with the terms of the Lease) that Guarantor may or
might have to its respective undertakings, liabilities and obligations
hereunder, each and every such defense being hereby waived by Guarantor; or
(n) any other cause, whether similar or dissimilar to any of the
foregoing, that might constitute a legal or equitable discharge of Guarantor
(whether or not Guarantor shall have knowledge or notice thereof) other than
payment in full of the Monetary Obligations.
Without in any way limiting the generality of the foregoing,
Guarantor specifically agrees that if Tenant's obligations under the Lease are
modified or amended with the express written consent of Landlord, this Guaranty
shall extend to such obligations as so amended or modified but shall not extend
to any increase in the obligations of Tenant under the Lease if such
modification or amendment was made by a tenant which was not, at the time of
such modification or amendment, an Affiliate of Guarantor and if Guarantor did
not consent to such modification or amendment.
4. Guarantor hereby waives notice (other than any notice required by
the terms of the Lease), demand, presentment, protest and notice of protest.
5. Guarantor agrees that, in the event of the rejection or
disaffirmance of the Lease by Tenant or Tenant's trustee in bankruptcy pursuant
to bankruptcy law or any other law affecting creditors rights, the Guarantor
shall, if Landlord so requests, assume all obligations and liabilities of Tenant
under the Lease, to the same extent as if the Guarantor was a party to such
document and there had been no such rejection or disaffirmance; and the
Guarantor shall confirm such assumption in writing at the request of Landlord
upon or after such rejection or disaffirmance. The Guarantor, upon such
assumption, shall have all rights of Tenant under the Lease (to the extent
permitted by law). Guarantor further agrees that, to the extent that Tenant or
Guarantor makes a payment or payments to Landlord, which payment or payments or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to Tenant or Guarantor or
their respective estates, trustees, receivers or any other party under any
bankruptcy law or any other law affecting creditors' rights, then to the extent
of such payment or repayment, this Guaranty and the advances or part thereof
which have been paid, reduced or satisfied by such amount shall be reinstated
and shall continue in full force and effect as of the date such initial payment,
reduction or satisfaction occurred.
6. The following events following the expiration of the applicable
cure periods, in this Paragraph are sometimes referred to as an "Event of
Default":
a. If default shall be made in the payment of any sum required
to be paid by Guarantor under this Guaranty;
b. If default shall be made in the observance or performance of
any of the other covenants in this Guaranty (as opposed to obligations under the
Lease which may be imposed on Guarantor pursuant to this Guaranty) which the
Guarantor is required to observe and perform and such default shall continue for
thirty (30) days after written notice to the Guarantor;
c. If any representation or warranty made by Guarantor herein
or in any certificate, demand or request proves to be incorrect in any material
respect when made and the representation or warranty continues to be incorrect
for a period of thirty (30) days after written notice from Landlord, or if the
facts cannot be changed so as to make the representation or warranty correct
within such thirty day period, Guarantor fails to provide Landlord with
protection (including, by way of example, additional collateral or letters of
credit) against loss arising from breach of such representation or warranty,
such protection to be satisfactory to Landlord in its sole discretion;
d. If Guarantor files a petition of bankruptcy or for
reorganization or for an arrangement pursuant to the Bankruptcy Code, or is
adjudicated a bankrupt or becomes insolvent or makes an assignment for the
benefit of its creditors, or admits in writing its inability to pay its debts
generally as they become due, or is dissolved, or suspends payment of its
obligations, or takes any corporate action in furtherance of any of the
foregoing; or
e. If a petition or answer is filed proposing the adjudication
of Guarantor as a bankrupt, or its reorganization pursuant to the Bankruptcy
Code, and (A) Guarantor consents to the filing thereof, or (B) such petition or
answer is not discharged or denied within 90 days after the filing thereof;
f. If a receiver, trustee or liquidator (or other similar
official) is appointed for or takes possession or charge of Guarantor, or if
Guarantor consents to or acquiesces in such appointment;
g. If an Event of Default occurs and is continuing under the
Lease; or
h. If an Event of Default occurs and is continuing under a
Management Agreement.
Upon the occurrence of any such Event of Default, Landlord shall have whatever
rights at law or equity it might have to enforce this Guaranty.
7. Guarantor agrees that any claim or claims or liens or security
interests it may now have or may in the future have against Tenant are or shall
be subordinate to Tenant's obligations to Landlord under the Lease. Guarantor
waives all rights of subrogation against Tenant for any amounts expended by
Guarantor under this Guaranty.
8. If Landlord incurs any expenses in the enforcement of this
Guaranty, including reasonable attorneys' fees and disbursements, whether or not
legal action be instituted, the Guarantor shall pay the same immediately upon
demand by Landlord which shall be accompanied by evidence of such expenses and
any amount due and payable hereunder to Landlord which is not paid when due
shall bear interest from the due date thereof at the Overdue Rate.
9. Landlord shall not by any act of omission or commission be deemed
to waive any of its rights or remedies hereunder unless such waiver be in
writing and signed by Landlord, and then only to the extent specifically set
forth therein; a waiver on one event shall not be construed as continuing or as
a bar to or waiver of such right or remedy on a subsequent event.
10. Guarantor shall deliver to Landlord and Lessor's Mortgagee:
(i) As soon as practicable but in no event later than five (5)
Business Days after the date of filing with Securities and Exchange Commission
or other Governmental Authority, copies of all such financial statements, proxy
statements, notices, other communications, and reports as Guarantor shall send
to its shareholders and other information generally made available to banks and
other lenders (exclusive of proprietary information), provided that Guarantor
need not make such delivery so long as such financial information is posted on
XXXXX, Guarantor's Home Page or other electronic resource generally available to
the public without charge and Guarantor emails notice to Landlord and any
Lessor's Mortgagee (at email addresses supplied by such parties) of the
availability of such information within five (5) Business Days of its posting,
and will provide paper copies of such information upon request and, in any
event, before such information is removed from the above-named electronic
resources;
(ii) For any period that Guarantor is a public company, as soon
as practicable, copies of all regular, current or periodic reports (including
reports on Form 10-K, Form 8-K and Form 10-Q) which Guarantor is or may be
required to file with the Securities and Exchange Commission or any Governmental
Authority succeeding to the functions of the Securities and Exchange Commission,
provided that Guarantor need not make such delivery so long as such financial
information is posted on XXXXX, Guarantor's Home Page or other electronic
resource generally available to the public without charge and Guarantor emails
notice to Landlord and any Lessor's Mortgagee (at email addresses supplied by
such parties) of the availability of such information within five (5) Business
Days of its posting, and will provide paper copies of such information upon
request and, in any event, before such information is removed from the
above-named electronic resources;
(iii) For any period that Guarantor is not a public company
required to file such reports with the Securities and Exchange Commission then
within 120 days after the end of each fiscal year, and within 60 days after the
end of any other fiscal quarter, a consolidated statement of earnings, and a
consolidated statement of changes in financial position, a consolidated
statement of stockholders' equity, and a consolidated balance sheet of such
entity as of the end of each such year or fiscal quarter, setting forth in each
case in comparative form the corresponding consolidated figures from the
preceding annual audit or corresponding fiscal quarter in the prior fiscal year,
as appropriate, all in reasonable detail and satisfactory in scope to Landlord
and Lessor's Mortgagee, and certified as to the annual consolidated statements
by independent public accountants of recognized national standing selected by
Guarantor, whose certificate shall be based upon an examination conducted in
accordance with generally accepted auditing standards and the application of
such tests as said accountants deem necessary under the circumstances; and
(iv) Within ninety (90) days of the end of each calendar year,
an annual statement setting forth the gross revenues derived by Lessee from the
sublease of space in the Leased Property and the Existing Leased Space, the
operating expenses of the Leased Property and the Existing Leased Space, capital
improvement made to the Leased Property and the Existing Leased Property,
together with a projection of such capital improvements for the next calendar
year, such statement to be certified as true and correct in all material
respects by an Executive Officer of Lessee.
Concurrently with the delivery of annual financial statements pursuant to
subparagraph (iii) of this paragraph 10, Guarantor will deliver to Landlord and
Lessor's Mortgagee a certificate by an Executive Officer of Guarantor that to
such officer's Actual Knowledge based on reasonable inquiry, there exists no
Default or Event of Default under the Lease or if any such Default or Event of
Default exists, specifying the nature thereof, the period of existence thereof
and what action Guarantor proposes to take with respect thereto. In addition,
Guarantor agrees upon prior written request to meet with Landlord and its
mortgagee during normal business hours at mutually convenient times, from time
to time, to discuss the Lease and such information about Guarantor's business
and financial condition reasonably requested by Landlord.
Any non-public information delivered to the Landlord pursuant to this paragraph
10, or otherwise, shall be deemed to be confidential. Landlord may share the
information delivered pursuant to this paragraph 10 with Lessor's Mortgagee, the
Certificate Holders, potential mortgagees, potential transferees of the
Certificate Holders, rating agencies, servicers, potential purchasers of the
Leased Property or a beneficial interest therein and all other parties having a
legitimate business purpose for reviewing the same; provided, such parties agree
to hold any non-public information in confidence; and provided, further,
Landlord may disclose such non-public information to regulatory authorities and
in accordance with any judicial or governmental order, or if required by any
law, regulation or stock exchange rule.
Notwithstanding anything to the contrary contained herein, Tenant and Guarantor
shall not be obligated to provide or disclose to Landlord, Lessor's Mortgagee,
any prospective purchaser or mortgagee, or any other Person, any information
relating to Tenant's or Guarantor's financial condition or operations which has
not already been publicly disclosed if Tenant or Guarantor reasonably believes
that providing or disclosing such information would require a separate filing
with the Securities and Exchanges Commission.
11. All communications herein provided for or made pursuant hereto
shall be in writing and shall be sent by (i) registered or certified mail,
return receipt requested, and the giving of such communication shall be deemed
complete on the third Business Day after the same is deposited in a United
States Post Office with postage charges prepaid, (ii) reputable overnight
delivery service with acknowledgment receipt returned, and the giving of such
communication shall be deemed complete on the immediately succeeding Business
Day after the same is timely deposited with such delivery service, or (iii) hand
delivery by reputable delivery service:
To Guarantor:
Fluor Corporation
Xxx Xxxxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attention: Director of Corporate Real Estate
With a copy to:
Fluor Corporation
Xxx Xxxxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attention: General Counsel
To Landlord:
Lakepointe Assets LLC
0000 Xxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: J. Xxxxxxx Xxxxxxxxx
With a copy to:
Lakepointe Assets LLC
0000 Xxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxx, Xx., Esq.
With a copy to:
Day, Xxxxx & Xxxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
With a copy to:
Xxxx Xxxxx Mortgage Capital Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: W. Xxxx Xxxx
Any notice, demand, request, approval or consent given in accordance
with the provisions of this paragraph 11 shall be effective on the date of
receipt or delivery or when proper delivery is refused by the addressee.
12. Notice of acceptance of this Guaranty by Landlord and notice of
any obligations or liabilities contracted or incurred by any Tenant under the
Lease are hereby waived by the Guarantor.
13. If Landlord proposes to refinance any mortgage of the Property,
Guarantor shall permit Landlord and the proposed mortgagee, at their expense, to
meet with officers of Guarantor at Guarantor's offices and to discuss the
Guarantor's business and finances. On request of Landlord, Guarantor agrees to
provide any such prospective mortgagee the information to which Landlord is
entitled hereunder, provided that if any such information is not publicly
available, such nonpublic information shall be made available on a confidential
basis substantially equivalent to the basis set forth at the end of Section
10(a) above. Guarantor agrees to execute, acknowledge and deliver, at Landlord's
expense, documents reasonably requested by the prospective mortgagee (such as a
consent to the financing (without encumbering Guarantor's or Tenant's assets), a
consent to assignment of lease and of this Guaranty, estoppel certificate, and a
subordination, non-disturbance and attornment agreement), customary for tenants
under leases such as the Lease and their guarantors to sign in connection with
mortgage loans to landlords, so long as such documents are in form then
customary among institutional lenders (provided the same do not materially and
adversely change Tenant's rights or obligations under the Lease and any related
documents or materially and adversely change Guarantor's rights and obligations
under this Guaranty).
14. This Guaranty shall be governed by and construed in accordance
with the laws of the State of Texas, other than its doctrine regarding conflicts
of laws. Guarantor consents to jurisdiction of the courts of the State of Texas
and of the Federal courts situated in Texas, and consents to venue in Texas, and
Guarantor waives any right to stay, remove, or otherwise directly or indirectly
interfere with such action based on such jurisdiction. The Guarantor hereby
waives any option or objection that it may now or hereafter have to the laying
of venue of any action or proceeding arising under or relating to this Guaranty
in any court located in the State of Texas, waives the right to bring any form
of declaratory judgment action with respect to the subject matter hereof in any
other jurisdiction, and hereby further waives any claim that a court located in
the State of Texas is not a convenient forum for any such action or proceeding.
15. This Guaranty may not be modified or amended except by a written
agreement duly executed by Guarantor and Landlord and Landlord's first mortgagee
from time to time, if any. This Guaranty shall be binding upon the Guarantor and
shall inure to the benefit of Landlord and its successors and assigns as
permitted hereunder, including, without limitation, any mortgagee of Landlord's
interest in the Property. In the event any one or more of the provisions
contained in this Guaranty shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Guaranty, but this Guaranty shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein. As used herein the term "Tenant" includes its successors
and assigns with respect to the Lease.
16. The rights of Landlord under this Guaranty may be assigned in
whole or in part by Landlord, its successors and assigns, whether directly or by
way of a grant of a security interest herein, without the consent of Guarantor.
17. Within 15 days after request by Landlord, Guarantor shall
deliver a certificate confirming that this Guaranty is in full force and effect
and unamended (or, if amended, specifying such amendment), and whether, to the
knowledge of Guarantor (without investigation other than inquiry of Tenant), any
Event of Default exists under the Lease or under this Guaranty.
18. Without the prior written consent of Landlord (which may be
granted or withheld in Landlord's sole discretion), Guarantor will not, directly
or indirectly, consolidate with or merge into any corporation, association,
partnership or other business organization or permit any corporation,
association, partnership or other business organization to consolidate with or
merge into it, or sell or otherwise transfer all or substantially all of its
properties and assets, or acquire all or substantially all of the assets of any
corporation, association, partnership or other business organization or
individual, unless (i) the Guarantor shall be the entity surviving such
consolidation, merger or other action, or the surviving entity or transferee
shall enter into an assumption this Guaranty in form and substance reasonably
satisfactory to Landlord (together with an opinion of independent counsel in
form and substance reasonably satisfactory to Landlord and Lessor's Mortgagee
relating to the due authorization, execution, delivery and enforceability of
such assumption); and (ii) immediately prior to such action, no Event of Default
shall have occurred and be continuing.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed and its corporate seals to be hereunto affixed and attested by its
officers thereunto duly authorized.
Fluor Corporation
By: /s/ X.X. Xxxxxxx
Name: X.X. Xxxxxxx
Title: Group Executive
