Exhibit 99.3
GUARANTY OF RECOURSE OBLIGATIONS
This GUARANTY OF RECOURSE OBLIGATIONS ("Guaranty") is executed
as of November 6, 2003, by XXXXXXX PROPERTIES, L.P., a Maryland limited
partnership ("Guarantor"), in favor of METROPOLITAN LIFE INSURANCE COMPANY, a
New York corporation ("Lender"), with reference to the following facts:
A. Lender has agreed to make a loan (the "Loan") in the
principal amount of up to $146,250,000.00 to Xxxxxxx Properties--One Cal Plaza,
LLC, a Delaware limited liability company ("Borrower"), to be evidenced by that
certain Promissory Note of even date herewith (the "Note") to be executed by
Borrower and payable to Lender. The Note is to be secured by, among other
things, a Deed of Trust, Security Agreement and Fixture Filing of even date
herewith to be executed by Borrower, as trustor, in favor of Lender, as
beneficiary which is to be recorded in the Official Records of Los Angeles
County, California (the "Deed of Trust"). The Deed of Trust will encumber a
leasehold estate in certain real property located in the City of Los Angeles,
County of Los Angeles, State of California and a fee estate in the improvements
thereon, all as described in such Deed of Trust (the "Property").
B. It is a condition to Lender making the Loan to
Borrower that Guarantor execute this Guaranty.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing, and in
order to induce Lender to make the Loan to Borrower, Guarantor hereby agrees, in
favor of Lender, as follows:
1. Definitions and Construction.
(a) Definitions. The following terms, as used in
this Guaranty, shall have the following meanings:
"Bankruptcy Code" means the Bankruptcy
Reform Act of 1978 (11 U.S.C.), as amended or supplemented from time to time,
and any successor statute, and any and all rules issued or promulgated in
connection therewith.
"Guaranteed Obligations" means any and all
obligations, indebtedness, or liabilities of any kind or character owed by
Borrower to Lender pursuant to Borrower's recourse obligations to Lender as set
forth under clauses (i) through (x) of Section 11 of the Note, the sentence
immediately following such clauses (i) through (x), clauses (i) through (x) of
Section 9.1(a) of the Deed of Trust, the sentence immediately following such
clauses (i) through (x), and all obligations and liabilities of Borrower to
Lender pursuant to that certain Unsecured Indemnity Agreement of even date
herewith executed by Borrower and Guarantor.
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"Loan Documents" shall have the same meaning
as in the Deed of Trust.
"Secured Indebtedness" shall have the same
meaning as in the Note.
(b) Construction. Unless the context of this
Guaranty clearly requires otherwise, references to the plural include the
singular, references to the singular include the plural, and the term
"including" is not limiting. The words "hereof," "herein," "hereby,"
"hereunder," and other similar terms refer to this Guaranty as a whole and not
to any particular provision of this Guaranty. Any reference herein to any of the
Loan Documents includes any and all alterations, amendments, extensions,
modifications, renewals, or supplements thereto or thereof, as applicable.
Neither this Guaranty nor any uncertainty or ambiguity herein shall be construed
or resolved against Lender or Guarantor, whether under any rule of construction
or otherwise. On the contrary, this Guaranty has been reviewed by Guarantor,
Lender, and their respective counsel, and shall be construed and interpreted
according to the ordinary meaning of the words used so as to fairly accomplish
the purposes and intentions of Lender and Guarantor.
2. Guaranteed Obligations. Guarantor hereby irrevocably
and unconditionally guarantees to Lender, as and for Guarantor's own debt, until
final and indefeasible payment thereof has been made, payment of the Guaranteed
Obligations, in each case when and as the same shall become due and payable, it
being the intent of Guarantor that the guaranty set forth herein shall be a
guaranty of payment and not a guaranty of collection.
3. Performance Under This Guaranty. In the event that
Borrower fails to make any payment of any Guaranteed Obligations when, as and to
the extent required by the Note, the Deed of Trust or the Unsecured Indemnity,
Guarantor immediately shall cause such payment to be made.
4. Primary Obligations. This Guaranty is a primary and
original obligation of Guarantor, is not merely the creation of a surety
relationship, and is an absolute and unconditional guaranty of payment and
performance of the Guaranteed Obligations which shall remain in full force and
effect without respect to future changes in conditions, including any change of
law or any invalidity or irregularity with respect to the issuance of the Loan
Documents. Each entity executing this Guaranty as Guarantor agrees that it is
directly, jointly and severally with any and all other guarantors of the
Guaranteed Obligations, liable to Lender, that the obligations of Guarantor
hereunder are independent of the obligations of Borrower or any other guarantor,
and that a separate action may be brought against each entity signing as
Guarantor whether such action is brought against Borrower or any other guarantor
or whether Borrower or any such other guarantor is joined in such action.
Guarantor agrees that its liability hereunder shall be immediate and shall not
be contingent upon the exercise or enforcement by Lender of whatever remedies it
may have against Borrower or any other guarantor, or the
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enforcement of any lien or realization upon any security Lender may at any time
possess. Guarantor agrees that any release which may be given by Lender to
Borrower or any other guarantor shall not release Guarantor. Guarantor consents
and agrees that Lender shall be under no obligation to marshal any assets of
Borrower or any other guarantor in favor of Guarantor, or against or in payment
of any or all of the Guaranteed Obligations.
5. Waivers.
(a) Guarantor absolutely, unconditionally,
knowingly, and expressly waives:
(i) (A) Notice of acceptance hereof;
(B) notice of any loans or other financial accommodations made or extended under
the Loan Documents or the creation or existence of any Guaranteed Obligations;
(C) notice of the amount of the Guaranteed Obligations, subject, however, to
Guarantor's right to make inquiry of Lender to ascertain the amount of the
Guaranteed Obligations at any reasonable time; (D) notice of any adverse change
in the financial condition of Borrower or of any other fact that might increase
Guarantor's risk hereunder; (E) notice of presentment for payment, demand,
protest, and notice thereof as to any promissory notes or other instruments
among the Loan Documents; (F) notice of any event of default under the Loan
Documents; and (G) all other notices (except if such notice is specifically
required to be given to Guarantor hereunder or under any Loan Document to which
Guarantor is a party) and demands to which Guarantor might otherwise be
entitled.
(ii) Guarantor's right by statute
(including, without limitation, its rights under California Civil Code Sections
2845 or 2850) or otherwise to require Lender to institute suit against Borrower
or to exhaust any rights and remedies which Lender has or may have against
Borrower or any collateral for the Guaranteed Obligations provided by Borrower,
Guarantor or any third party. In this regard, Guarantor agrees that it is bound
to the payment of all Guaranteed Obligations, whether now existing or hereafter
accruing, as fully as if such Guaranteed Obligations were directly owing to
Lender by Guarantor. Guarantor further waives any defense arising by reason of
any disability or other defense (other than the defense that the Guaranteed
Obligations shall have been fully and finally performed and indefeasibly paid)
of Borrower or by reason of the cessation from any cause whatsoever of the
liability of Borrower in respect thereof.
(iii) (A) Any rights to assert against
Lender any defense (legal or equitable), set-off, counterclaim, or claim which
Guarantor may now or at any time hereafter have against Borrower or any other
party liable to Lender; (B) any defense, set-off, counterclaim, or claim, of any
kind or nature, arising directly or indirectly from the present or future lack
of perfection, sufficiency, validity, or enforceability of the Guaranteed
Obligations or any security therefor; (C) any defense Guarantor has to
performance hereunder, and any right Guarantor has to be exonerated, provided by
California Civil Code Sections 2819, 2822, or 2825, or otherwise, arising by
reason of: the impairment or suspension of Lender's rights or remedies against
Borrower; the
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alteration by Lender of the Guaranteed Obligations; any discharge of the
Guaranteed Obligations by operation of law as a result of Lender's intervention
or omission; or the acceptance by Lender of anything in partial satisfaction of
the Guaranteed Obligations; (D) the benefit of any statute of limitations
affecting Guarantor's liability hereunder or the enforcement thereof, and any
act which shall defer or delay the operation of any statute of limitations
applicable to the Guaranteed Obligations shall similarly operate to defer or
delay the operation of such statute of limitations applicable to Guarantor's
liability hereunder.
(b) Guarantor absolutely, unconditionally,
knowingly, and expressly waives any defense arising by reason of or deriving
from (i) any claim or defense based upon an election of remedies by Lender
including any defense based upon an election of remedies by Lender under the
provisions of the California Code of Civil Procedure Sections 580a, 580b, 580d,
and 726 or any similar law of California or any other jurisdiction; or (ii) any
election by Lender under Bankruptcy Code Section 1111(b) to limit the amount of,
or any collateral securing, its claim against Borrower. Pursuant to California
Civil Code Section 2856:
Guarantor waives all rights and defenses
arising out of an election of remedies by the creditor, even though that
election of remedies, such as a nonjudicial foreclosure with respect to security
for a guaranteed obligation, has destroyed Guarantor's rights of subrogation and
reimbursement against Borrower by the operation of California Code of Civil
Procedure Section 580(d) or otherwise.
Guarantor waives all rights and defenses
that Guarantor may have because some of the Guaranteed Obligations are secured
by real property. This means, among other things:
(1) Lender may collect from Guarantor
without first foreclosing on any real or personal property collateral pledged by
Borrower for the Guaranteed Obligations; and
(2) If Lender forecloses on any real
property collateral pledged by Borrower for the Guaranteed Obligations: (A) the
amount of the debt may be reduced only by the price for which that collateral is
sold at the foreclosure sale, even if the collateral is worth more than the sale
price; and (B) Lender may collect from Guarantor even if Lender, by foreclosing
on the real property collateral pledged by Borrower for the Guaranteed
Obligations, has destroyed any right Guarantor may have to collect from
Borrower.
This is an unconditional and irrevocable
waiver of any rights and defenses Guarantor may have because Borrower's debt is
secured by real property. These rights and defenses include, but are not limited
to, any rights or defenses based upon California Code of Civil Procedure
Sections 580a, 580b, 580d, or 726.
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If any of the Guaranteed Obligations at any
time are secured by a mortgage or deed of trust upon real property, Lender may
elect, in its sole discretion, upon a default with respect to the Guaranteed
Obligations, to foreclose such mortgage or deed of trust judicially or
nonjudicially in any manner permitted by law, before or after enforcing the Loan
Documents, without diminishing or affecting the liability of Guarantor hereunder
except to the extent the Guaranteed Obligations are repaid with the proceeds of
such foreclosure. Guarantor understands that (a) by virtue of the operation of
California's antideficiency law applicable to nonjudicial foreclosures, an
election by Lender nonjudicially to foreclose such a mortgage or deed of trust
probably would have the effect of impairing or destroying rights of subrogation,
reimbursement, contribution, or indemnity of Guarantor against Borrower or other
guarantors or sureties, and (b) absent the waiver given by Guarantor, such an
election would prevent Lender from enforcing the Loan Documents against
Guarantor. Understanding the foregoing, and understanding that Guarantor is
hereby relinquishing a defense to the enforceability of the Loan Documents,
Guarantor hereby waives any right to assert against Lender any defense to the
enforcement of the Loan Documents, whether denominated "estoppel" or otherwise,
based on or arising from an election by Lender nonjudicially to foreclose any
such mortgage or deed of trust. Guarantor understands that the effect of the
foregoing waiver may be that Guarantor might have liability hereunder for
amounts with respect to which Guarantor may be left without rights of
subrogation, reimbursement, contribution, or indemnity against Borrower or other
guarantors or sureties. Guarantor also agrees that the "fair market value"
provisions of California Code of Civil Procedure Section 580a shall have no
applicability with respect to the determination of Guarantor's liability under
the Loan Documents.
(c) Guarantor hereby absolutely,
unconditionally, knowingly, and expressly waives: (i) any right of subrogation
Guarantor has or may have as against Borrower with respect to the Guaranteed
Obligations; (ii) any right to proceed against Borrower or any other person or
entity, now or hereafter, for contribution, indemnity, reimbursement, or any
other suretyship rights and claims, whether direct or indirect, liquidated or
contingent, whether arising under express or implied contract or by operation of
law, which Guarantor may now have or hereafter have as against Borrower with
respect to the Guaranteed Obligations; and (iii) any right to proceed or seek
recourse against or with respect to any property or asset of Borrower.
(D) WITHOUT LIMITING THE GENERALITY OF ANY OTHER
WAIVER OR OTHER PROVISION SET FORTH IN THIS GUARANTY, GUARANTOR HEREBY
ABSOLUTELY, KNOWINGLY, UNCONDITIONALLY, AND EXPRESSLY WAIVES, ANY AND ALL
BENEFITS OR DEFENSES ARISING DIRECTLY OR INDIRECTLY UNDER ANY ONE OR MORE OF
CALIFORNIA CIVIL CODE SECTIONS 2787 THROUGH 2855, CALIFORNIA CODE OF CIVIL
PROCEDURE SECTIONS 580A, 580B, 580C, 580D, AND 726, AND CHAPTER 2 OF TITLE 14 OF
PART 4 OF DIVISION 3 OF THE CALIFORNIA CIVIL CODE, AND CALIFORNIA COMMERCIAL
CODE SECTIONS 3116, 3118, 3119, 3419, 3605, 9610, 9611, 9615, 9617, 9624, 9625,
9626, AND 9627.
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6. Releases. Guarantor consents and agrees that, without
notice to or by Guarantor and without affecting or impairing the obligations of
Guarantor hereunder, Lender may, by action or inaction:
(a) compromise, settle, extend the duration or
the time for the payment of, or discharge the performance of, or may refuse to
or otherwise not enforce this Guaranty, the other Loan Documents, or any part
thereof, with respect to Borrower or any other person or entity;
(b) release Borrower or any other person or
entity or grant other indulgences to Borrower or any other person or entity in
respect thereof;
(c) amend or modify in any manner and at any
time (or from time to time) any of the Loan Documents; or
(d) release or substitute any other guarantor,
if any, of the Guaranteed Obligations, or enforce, exchange, release, or waive
any security for the Guaranteed Obligations or any other guaranty of the
Guaranteed Obligations, or any portion thereof.
7. No Election. Lender shall have all of the rights to
seek recourse against Guarantor to the fullest extent provided for herein, and
no election by Lender to proceed in one form of action or proceeding, or against
any party, or on any obligation, shall constitute a waiver of Lender's right to
proceed in any other form of action or proceeding or against other parties
unless Lender has expressly waived such right in writing. Specifically, but
without limiting the generality of the foregoing, no action or proceeding by
Lender under any document or instrument evidencing the Guaranteed Obligations
shall serve to diminish the liability of Guarantor under this Guaranty except to
the extent that Lender finally and unconditionally shall have realized
indefeasible payment by such action or proceeding.
8. Indefeasible Payment. The Guaranteed Obligations and
the Secured Indebtedness shall not be considered indefeasibly paid for purposes
of this Guaranty unless and until all payments to Lender are no longer subject
to any right on the part of any person or entity, including Borrower, Borrower
as a debtor in possession, or any trustee (whether appointed under the
Bankruptcy Code or otherwise) of any of Borrower's assets to invalidate or set
aside such payments or to seek to recoup the amount of such payments or any
portion thereof, or to declare same to be fraudulent or preferential. Upon such
full and final performance and indefeasible payment of the Guaranteed
Obligations whether by Guarantor or Borrower, Lender shall have no obligation
whatsoever to transfer or assign its interest in the Loan Documents to
Guarantor. In the event that, for any reason, any portion of such payments to
Lender is set aside or restored, whether voluntarily or involuntarily, after the
making thereof, then the obligation intended to be satisfied thereby shall be
revived and continued in full force and effect as if said payment or payments
had not been made, and Guarantor shall be liable for
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the full amount Lender is required to repay plus any and all costs and expenses
(including attorneys' fees and expenses incurred pursuant to proceedings arising
under the Bankruptcy Code) paid by Lender in connection therewith.
9. Financial Condition of Borrower. Guarantor represents
and warrants to Lender that Guarantor is currently informed of the financial
condition of Borrower and of all other circumstances which a diligent inquiry
would reveal and which bear upon the risk of nonpayment of the Guaranteed
Obligations. Guarantor further represents and warrants to Lender that Guarantor
has read and understands the terms and conditions of the Loan Documents.
Guarantor hereby covenants that Guarantor will continue to keep informed of
Borrower's financial condition, the financial condition of other guarantors, if
any, and of all other circumstances which bear upon the risk of nonpayment or
nonperformance of the Guaranteed Obligations.
10. Subordination. Guarantor hereby agrees that any and
all present and future indebtedness of Borrower owing to Guarantor is deferred,
postponed in favor of and subordinated to the prior payment, in full, in cash,
of the Guaranteed Obligations and the Secured Indebtedness. In this regard, no
payment of any kind whatsoever shall be made with respect to such indebtedness
until the Guaranteed Obligations and the Secured Indebtedness have been
indefeasibly paid in full. Until payment in full of the Guaranteed Obligations
and the Secured Indebtedness, Guarantor agrees not to accept any payment or
satisfaction of any kind of indebtedness of Borrower to Guarantor and hereby
assigns such indebtedness to Lender, including the right to file proof of claim
and to vote thereon in connection with any proceeding under the Bankruptcy Code,
including the right to vote on any plan of reorganization. Further, if Guarantor
shall comprise more than one person, firm or corporation, Guarantor agrees that
until such payment in full of the Guaranteed Obligations and the Secured
Indebtedness, (a) no one of them shall accept payment from the others by way of
contribution on account of any payment made hereunder by such party to Lender,
(b) no one of them will take any action to exercise or enforce any rights to
such contribution, and (c) if any of Guarantor should receive any payment,
satisfaction or security for any indebtedness of Borrower to any of Guarantor or
for any contribution by the others of Guarantor for payment made hereunder by
the recipient to Lender, the same shall be delivered to Lender in the form
received, endorsed or assigned as may be appropriate for application on account
of, or as security for, the Guaranteed Obligations and until so delivered, shall
be held in trust for Lender as security for the Guaranteed Obligations.
11. Payments; Application. All payments to be made
hereunder by Guarantor shall be made in lawful money of the United States of
America at the time of payment, shall be made in immediately available funds,
and shall be made without deduction (whether for taxes or otherwise) or offset.
All payments made by Guarantor hereunder shall be applied as follows: first, to
all costs and expenses (including attorneys' fees and expenses and attorneys'
fees and expenses incurred pursuant to proceedings arising under the Bankruptcy
Code) incurred by Lender in enforcing this Guaranty or in collecting the
Guaranteed Obligations; second, to all accrued and unpaid interest,
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premium, if any, and fees owing to Lender constituting Guaranteed Obligations;
and third, to the balance of the Guaranteed Obligations.
12. Attorneys' Fees and Costs. Guarantor agrees to pay,
on demand, all reasonable attorneys' fees (including reasonable attorneys' fees
incurred pursuant to proceedings arising under the Bankruptcy Code) and all
other costs and expenses which may be incurred by Lender in the enforcement of
this Guaranty (including those brought relating to proceedings pursuant to 11
U.S.C.) or in any way arising out of, or consequential to the protection,
assertion, or enforcement of the Guaranteed Obligations (or any security
therefor), whether or not suit is brought. Notwithstanding the foregoing, in any
action brought by Guarantor or Lender pursuant to this Guaranty in which
Guarantor is adjudicated the prevailing party, Guarantor shall be entitled to
payment of its reasonable attorneys' fees and costs.
13. Notices. All notices or demands by Guarantor or
Lender to the other relating to this Guaranty shall be in writing and either
personally served or sent by registered or certified mail, postage prepaid,
return receipt requested, or by recognized courier service which provides return
receipts, and shall be deemed delivered on the date of actual delivery or
refusal to accept delivery as evidenced by the return receipt. Unless otherwise
specified in a notice sent or delivered in accordance with the provisions of
this section, such writing shall be sent as follows:
If to Lender: Metropolitan Life Insurance Company
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Senior Vice President, Real Estate Investments
With a copy to: Metropolitan Life Insurance Company
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Director and O.I.C.
And to: Metropolitan Life Insurance Company
000 Xxxxx Xx Xxxxxx Xxxx, Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Associate General Counsel
If to Guarantor: Xxxxxxx Properties, L.P.
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
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With a copy to: Xxxx X. Xxxxxx, Esq.
Xxxxxxxxx & Xxxxxx Professional Corp.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
14. Cumulative Remedies. No remedy under this Guaranty or
under any Loan Document is intended to be exclusive of any other remedy, but
each and every remedy shall be cumulative and in addition to any and every other
remedy given hereunder or under any Loan Document, and those provided by law or
in equity. No delay or omission by Lender to exercise any right under this
Guaranty shall impair any such right nor be construed to be a waiver thereof. No
failure on the part of Lender 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.
15. Severability of Provisions. If any provision of this
Guaranty is for any reason held to be invalid, illegal or unenforceable in any
respect, that provision shall not affect the validity, legality or
enforceability of any other provision of this Guaranty.
16. Entire Agreement; Amendments. This Guaranty
constitutes the entire agreement between Guarantor and Lender pertaining to the
subject matter contained herein. This Guaranty may not be altered, amended, or
modified, nor may any provision hereof be waived or noncompliance therewith
consented to, except by means of a writing executed by both Guarantor and
Lender. Any such alteration, amendment, modification, waiver, or consent shall
be effective only to the extent specified therein and for the specific purpose
for which given. No course of dealing and no delay or waiver of any right or
default under this Guaranty shall be deemed a waiver of any other, similar or
dissimilar right or default or otherwise prejudice the rights and remedies
hereunder.
17. Successors and Assigns. This Guaranty shall be
binding upon Guarantor's successors and assigns and shall inure to the benefit
of the successors and assigns of Lender; provided, however, Guarantor shall not
assign this Guaranty or delegate any of its duties hereunder without Lender's
prior written consent. Any assignment without the consent of Lender shall be
absolutely void. In the event of any assignment or other transfer of rights by
Lender, the rights and benefits herein conferred upon Lender shall automatically
extend to and be vested in such assignee or other transferee.
18. Choice of Law and Venue. The validity of this
Guaranty, its construction, interpretation, and enforcement, and the rights of
Guarantor and Lender, shall be determined under, governed by, and construed in
accordance with the internal laws of the State of California, without regard to
its principles of conflicts of law. To the maximum extent permitted by law,
Guarantor hereby agrees that all actions or proceedings arising in connection
with this Guaranty shall be tried and determined only in the state and federal
courts located in the County of San Mateo or County of Los Angeles, State of
California, or, at the sole option of Lender, in any other court in which
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Lender shall initiate legal or equitable proceedings and which has subject
matter jurisdiction over the matter in controversy. To the maximum extent
permitted by law, Guarantor hereby expressly waives any right it may have to
assert the doctrine of forum non conveniens or to object to venue to the extent
any proceeding is brought in accordance with this Section.
19. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED
BY LAW, GUARANTOR HEREBY ABSOLUTELY, KNOWINGLY, UNCONDITIONALLY, AND EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY ACTION, CAUSE OF ACTION, CLAIM, DEMAND,
OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS GUARANTY, OR IN ANY WAY
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE DEALINGS OF GUARANTOR AND
LENDER WITH RESPECT TO THIS GUARANTY, OR THE TRANSACTIONS RELATED HERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GUARANTOR
HEREBY AGREES THAT ANY SUCH ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR
PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT LENDER MAY
FILE AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY COURT OR OTHER TRIBUNAL AS
WRITTEN EVIDENCE OF THE CONSENT OF GUARANTOR TO THE WAIVER OF ITS RIGHT TO TRIAL
BY JURY.
20. Understandings With Respect to Waivers and Consents.
Guarantor warrants and agrees that each of the waivers and consents set forth
are made after consultation with legal counsel and with full knowledge of their
significance and consequences, with the understanding that events giving rise to
a defense or right may diminish, destroy, or otherwise adversely affect rights
which Guarantor otherwise may have against the Borrower, or against any
collateral, and that, under the circumstances the waivers and consents herein
given are reasonable and not contrary to public policy or law. If any of the
waivers or consents are determined to be unenforceable under applicable law,
such waivers and consents shall be effective to the maximum extent permitted by
law.
21. Counterparts. 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 to execute this Guaranty,
or any counterpart hereof, shall not relieve the other signatories from their
obligations hereunder.
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IN WITNESS WHEREOF, Guarantor has executed and delivered this
Guaranty of Recourse Obligations as of the date first set forth above.
XXXXXXX PROPERTIES, L.P.,
a Maryland limited partnership
By Xxxxxxx Properties, Inc., a Maryland corporation,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and Co-Chief Executive Officer
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