GUARANTY
OF PAYMENT
November
1, 2007
Eurohypo
AG, New York Branch
1114
Avenue of the Americas, 29th Floor
New
York, New York 10036
Attention: Head
of Portfolio Operations
and
the
other “Banks”, as such quoted
term
is defined in the “Agreement” defined
below
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Re:
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Second
Amended and Restated Revolving Credit Loan (the “Loan”)
from Eurohypo AG, New York Branch (“Eurohypo”) and the
other “Banks” (as such quoted term is defined in the
Agreement, as hereinafter defined) to Twelve Oaks Mall, LLC,
Fairlane Town Center LLC, and Dolphin Mall Associates LLC
(individually, a “Borrower”; collectively, the
“Borrowers”)
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Dear
Sir/Madam:
The
Taubman Realty Group Limited Partnership (“TRG”)
entered into that certain Secured Revolving Credit Agreement
dated as of October 13, 2004 with Eurohypo and the lenders set
forth therein (the “Original Loan Agreement”)
whereby the lenders under the Original Loan Agreement made
that certain Revolving Credit Loan (the “Original
Loan”) to TRG.
In
addition to other things, Twelve Oaks Mall, LLC and Fairlane
Town Center LLC made that certain Guaranty of Payment (the
“Original Guaranty”) to the Administrative Agent
and the lenders under the Original Loan Agreement dated as of
October 13, 2004.
The
Original Loan was refinanced (the “Amended Loan”)
pursuant to an Amended and Restated Secured Revolving Credit
Agreement dated August 9, 2006 (the “Amended Loan
Agreement”) among Borrowers or their predecessors in
interest (as Borrower), TRG, Eurohypo and the other lenders
signatory thereto (as Banks) and Eurohypo (as Administrative
Agent for the Banks; Eurohypo, in such capacity, together with
its successors in such capacity, “Administrative
Agent”). As part of that refinancing, a
restated Guaranty of Payment (“Restated Guaranty”)
replaced and, to the extent applicable, continued the
indebtedness under the Original Guaranty.
The
Amended Loan is being refinanced pursuant to that certain
Second Amended and Restated Secured Revolving Credit Agreement
of even date herewith (the “Agreement”) among
Borrowers (as Borrower), TRG, Eurohypo and the other lenders
signatory thereto (as Banks) and Administrative
Agent. This Guaranty of Payment (the
“Guaranty”) replaces and, to the extent
applicable, continues the indebtedness under the Restated
Guaranty. All initially capitalized terms used and
not defined herein shall have the meanings respectively
ascribed to them in the Agreement.
To
induce the Banks to make the Loans (which Banks would not make
but for this Guaranty of Payment), the undersigned
(hereinafter, each of them individually
“Guarantor” and collectively,
“Guarantors”) hereby jointly and severally (except
in the case of paragraphs 6 through 9 below which are made
severally by each Guarantor) represents, warrants and
covenants to the Banks and Administrative Agent as
follows:
1.
Authorization
and Enforceability . The Agreement, Notes, Mortgages
and all other Loan Documents have been duly authorized and executed
by the signatories thereto (other than the Banks and Administrative
Agent) and are legal, valid and binding instruments, enforceable
against such parties in accordance with their respective terms,
subject, however, to the qualifications that (a) some of the rights
and remedies set forth in the Mortgages may be limited by
bankruptcy, insolvency, reorganization and other Laws of general
application to the enforcement of creditors’ rights and (b)
certain remedies and waivers contained in the Mortgages and other
Loan Documents may be limited by applicable Laws of the respective
jurisdictions in which the Properties are located, none of which
qualifications will materially interfere with the practical
realization of the benefits and security provided thereby except
for the economic consequences of any procedural delay which may
result therefrom.
2.
Obligations
Guaranteed. Guarantors absolutely and
unconditionally guarantee the prompt payment when due, whether at
maturity or by acceleration or otherwise, of all of
Borrowers’ indebtedness under the Notes, the Mortgages and
the Agreement, together with interest on such obligations to the
extent provided for in said documents, and all legal and other
costs or expenses paid or incurred by or on behalf of the Banks or
Administrative Agent in the enforcement thereof or hereof or of any
Other Guaranty (as hereinafter defined), and further guarantee that
the representations and warranties made by Borrowers (including,
without limitation, those with respect to the Mortgagors and the
Properties) and by Guarantors in the Loan Documents are true and
correct as of the date hereof. The current amount of the
Total Loan Commitment is $550,000,000, but the amount of the Total
Loan Commitment is subject to increase to up to $650,000,000 in
accordance with the terms and conditions of the
Agreement. Each Guarantor hereby consents to such
increase in the principal amount of the Loan up to $650,000,000 and
agrees that this Guaranty of Payment shall cover said maximum
principal obligation with no further consent of any Guarantor or
amendment hereto being required (and Guarantors agree that any
reference in this Guaranty to a Borrower or to Borrowers shall
include each New Borrower [as defined in the
Agreement]). Each Guarantor acknowledges and agrees that
this Guaranty is a continuing guaranty and that the agreements,
guaranties and waivers made by Guarantors herein, and
Guarantors’ obligations hereunder, are and shall at all times
continue to be primary, absolute and unconditional. Each
Guarantor acknowledges that execution and delivery of this Guaranty
of Payment is a condition precedent to the Loan. Each
Guarantor further agrees that if any Borrower shall fail to pay in
full when due, whether at stated maturity, by acceleration or
otherwise, any of the obligations guaranteed hereunder (and if any
grace or cure period applicable to payment of such obligation shall
have expired), Guarantors will upon demand pay the
same. The maximum liability of each Borrower which is a
Guarantor hereunder shall be limited to the maximum permissible
amount which would be valid and enforceable and would not render
this Guaranty of Payment voidable as to such Guarantor as a
fraudulent transfer or otherwise, under applicable federal and
state bankruptcy, insolvency, fraudulent transfer and other similar
creditors’ rights laws.
3.
Liability
Unimpaired . Guarantors’ liability hereunder
shall in no way be limited or impaired by, and each Guarantor
hereby consents to and agrees to be bound by, any amendment or
modification of the provisions of any of the Loan Documents
(including any Loan Document executed after the date hereof) or any
other instrument made to or with Administrative Agent or the Banks
by Guarantors, Borrowers or any Person who succeeds any Borrower as
owner of all or part of the Mortgaged Property under the Mortgage
executed by it. In addition, Guarantors’ liability
hereunder shall in no way be limited or impaired by (i) any
extensions of time for performance required by any of said
documents, (ii) any sale, assignment or foreclosure of the Notes or
Mortgages or any sale or transfer of all or part of the Mortgaged
Property under any of the Mortgages, (iii) any exculpatory
provision in any of said instruments limiting the Banks’
recourse to the Mortgaged Property under any or all of the
Mortgages or to any other security, or limiting the Banks’
rights to a deficiency judgment against Borrowers, (iv) the release
of a Borrower or any other Person from performance or observance of
any of the agreements, covenants, terms or conditions contained in
any of said instruments by operation of law or otherwise, (v) the
release or substitution in whole or in part of any security for the
Loan, (vi) the failure to record any of the Mortgages or file any
UCC financing statements (or the improper recording or filing of
any thereof) or to otherwise perfect, protect, secure or insure any
security interest or lien given as security for the Loan, (vii) the
invalidity, irregularity, unenforceability or uncollectibility, in
whole or in part, of any of the Loan Documents, this Guaranty or
any other instrument or agreement now or hereafter executed or
delivered to Administrative Agent or the Banks in connection with
the Loan, (viii) any proceedings, voluntary or involuntary,
regarding the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Borrower or Guarantor or (ix) any other
action or circumstance whatsoever which constitutes, or might be
construed to constitute, a legal or equitable discharge or defense
of any Borrower or Guarantor for their respective obligations under
any of the Loan Documents or of Guarantors under this Guaranty;
and, in any such case, whether with or without notice to Guarantors
and with or without consideration. Each Guarantor
acknowledges that it is deriving substantial benefit from the
making of the Loan and that, consequently, each Guarantor has
received valuable consideration for the giving of this Guaranty and
the granting of the Mortgages.
4.
Indemnification;
Payments; Certain Waivers . Guarantors shall
indemnify Administrative Agent and the Banks against loss, cost or
expense caused by the assertion by Borrowers or Guarantors of any
defense to their respective obligations under any of the Loan
Documents, the assertion by Guarantors of any defense to its
obligations hereunder or the assertion by the guarantor(s) under
any Other Guaranty of any defense to its (or their) obligations
thereunder, other than, in either such case, a successful defense
as determined in an unappealable judgment of a court of competent
jurisdiction. Each Guarantor (i) waives any right or
claim of right to cause a marshalling of any Borrower’s or
any other Person’s assets or to cause the Banks or
Administrative Agent to proceed against any of the security for the
Loan or for the obligations guaranteed hereby before proceeding
against such Guarantor or to proceed against such Guarantor and any
other obligor under the Loan in any particular order, (ii) agrees
that any payments required to be made by such Guarantor hereunder
shall become due on demand in accordance with the terms of the
Notes and Agreement immediately upon the happening of any Event of
Default and without presentment to Borrowers, demand for payment or
protest, or notice of non-payment or protest and (iii) expressly
waives and relinquishes all rights and remedies accorded by
applicable Law to guarantors. Without limiting the
generality of the foregoing, until such time as all sums owing to
the Banks and Administrative Agent in respect of the Loan have been
repaid in full, each Guarantor hereby waives all ri
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