EXHIBIT 10.24
REPAYMENT GUARANTY
THIS REPAYMENT GUARANTY (this
“ Guaranty ”) is made as of
February 15, 2008, by GARY H. HUNT, W. BRAND INLOW, EDWARD A.
JOHNSON, D. FLEET WALLACE, and GARY T. WESCOMBE, as Trustees of the
G REIT Liquidating Trust dated January 22, 2008 (the “
Guarantor ”) in favor of WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking association (“
Lender ”).
1. Except as otherwise
provided in this Guaranty, initially capitalized terms used in this
Guaranty without definition are defined in that certain Loan
Agreement of even date herewith by and between NNN Western Place,
LLC, a Delaware limited liability company, NNN Western Place 1,
LLC, a Delaware limited liability company, NNN Western Place 2,
LLC, a Delaware limited liability company, NNN Western Place 3,
LLC, a Delaware limited liability company, NNN Western Place 4,
LLC, a Delaware limited liability company, NNN Western Place 5,
LLC, a Delaware limited liability company, NNN Western Place 6,
LLC, a Delaware limited liability company, NNN Western Place 7,
LLC, a Delaware limited liability company, and GREIT —
Western Place, LP, a Texas limited partnership (collectively, the
“ Borrower ”) and Lender (the “
Loan Agreement ”).
2. In order to induce
Lender to extend to Borrower a loan (whether acting on behalf of
itself or any estate created by the commencement of a case under
Title 11 United States Code or any successor statute thereto (the
“ Bankruptcy Code ”) or any other
insolvency, bankruptcy, reorganization or liquidation proceeding,
or by any trustee under the Bankruptcy Code, liquidator,
sequestrator or receiver of Borrower or Borrower’s property
or similar Person duly appointed pursuant to any law generally
governing any insolvency, bankruptcy, reorganization, liquidation,
receivership or like proceeding) in the sum of $28,000,000.00 (the
“ Loan ”), evidenced by a secured
promissory note (“ Note ”), in the
aggregate principal amount of $28,000,000.00, each now or hereafter
executed by Borrower and payable to the order of Lender, Guarantor
hereby unconditionally and irrevocably guarantees to Lender and to
its successors, endorsees and/or assigns, the full and prompt
payment of (a) the principal sum of the Note in accordance
with its terms when due, by acceleration or otherwise, together
with all interest accrued thereon, when due under the terms of the
Note, and any and all other sums of money that become owing by
Borrower to Lender under the Note, Loan Agreement or any other
“Loan Document” as such term is defined in the Loan
Agreement (which Note, Loan Agreement and other “Loan
Documents” are also collectively referred to herein as the
“ Loan Documents ”) and (b) any and
all sums owing under any “Swap Contract” as such term
is defined in the Loan Agreement (“ Swap
Contract ”). The obligations guaranteed pursuant to
this Section 2 are hereinafter referred to as the “
Guaranteed Obligations .”
Notwithstanding
the foregoing, Guarantor’s obligations hereunder shall in no
event exceed an amount equal to $7,400,000.00 of the principal
amount of the Loan outstanding on the date the Notes become due and
payable in full, whether at maturity or by acceleration or
otherwise (the “ Guaranteed Principal Amount
”), plus 100% of (a) all interest owing on the
Loan; (b) attorneys’ fees and collection costs and all
other sums other than principal owing on the Loan; and (c) any
deficiency, loss or damage actually suffered by Lender because of:
(1) Borrower’s commission of a criminal act;
(2) the failure to comply with provisions of the
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Loan
Documents prohibiting the sale, transfer or encumbrance of the
Project; (3) the misapplication by Borrower of any funds
derived from the Project, including security deposits, insurance
proceeds, condemnation awards, rental income or other income
arising with respect to the Project; (4) Borrower’s
commission of waste; (5) Borrower’s removal of
collateral from the Project without replacement,
(6) Borrower’s violation of law; (7) failure to pay
real property taxes, assessments or other charges which would
create liens on any portion of the Project; (8) losses,
expense or liability relating to the presence of hazardous or toxic
materials on the Project; (9) the fraud or intentional
misrepresentation by Borrower made in or in connection with the
Loan Documents or the Loan; (10) Borrower’s voluntary
filing of any proceeding for relief under any federal or state
bankruptcy, insolvency or receivership laws or any assignment for
the benefit of creditors made by Borrower not dismissed within
180 days; (11) any involuntary filing against Borrower of
any proceeding for relief under any federal or state bankruptcy,
insolvency or receivership laws or any assignment for the benefit
of creditors, but only if such involuntary filing was made by
Borrower or an Affiliate of Borrower, or at the instigation or in
collusion or acquiescence with Borrower or an Affiliate of
Borrower; (12) Borrower’s interference with
Lender’s enforcement proceedings (other than in good faith by
reason of a legitimate defense); (13) Borrower’s failure
to maintain required insurance; (14) Borrower’s
collection of rent more than one month in advance; (15) any
amount owing to Lender under indemnity provisions that relate to
liabilities to third parties resulting from acts or omissions of
Borrower, contractors or such other third parties with whom
Borrower has dealt, and/or from the ownership, occupancy or use of
the Project; (16) any amounts necessary to ensure lien-free
completion of any tenant improvements which Borrower is obligated
to construct under any leases; (17) any violation of
Section 12.29 of the Loan Agreement; (18) any
modification of the TIC Agreement in violation of
Section 11.1(u) of the Loan Agreement; or (19) any
violation of Section 11.1(v) of the Loan Agreement.
Guarantor’s obligations shall not be affected, impaired,
lessened or released by loans, credits or other financial
accommodations now existing or hereafter advanced by Lender to
Borrower in excess of the Guaranteed Principal Amount. In no event
shall the Guaranteed Principal Amount be reduced as a result of
(a) Lender’s foreclosure or acceptance of a deed in lieu
of foreclosure with respect to any collateral securing the Loan, or
(b) Guarantor’s payment of the Loan or any portion
thereof prior to the date when the entire Loan becomes due and
payable in full, whether at maturity or by acceleration or
otherwise. The agreement of Lender to the foregoing limitation on
Guarantor’s liability shall in no way be deemed to limit or
restrict the right of Lender to apply any sums paid by Guarantor to
any portion of the Loan.
The
indebtedness guaranteed by Guarantor hereunder shall be deemed to
be the last indebtedness which remains outstanding under the Loan
Documents after the application of payments received from Borrower
and the application of proceeds received from the foreclosure of
the Mortgage and other liquidation of any collateral for the Loan
(subject to the above limitations on the maximum amount of
principal indebtedness guaranteed hereby), and Guarantor may not
claim or contend so long as any such indebtedness remains
outstanding that any payments received by Lender from Borrower or
otherwise, or proceeds received by Lender on the liquidation of the
Project, shall have reduced or discharged Guarantor’s
liability or obligations hereunder. Nothing contained in this
paragraph shall be deemed to (i) limit or otherwise impair any
of the waivers or agreements of Guarantor contained in this
Guaranty or (ii) require Lender to proceed against Borrower,
any collateral or any other Guarantor before proceeding against any
particular Guarantor (any such requirement having been specifically
waived).
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3. (a) Guarantor waives
any and all rights of subrogation, reimbursement, indemnification
and contribution, and any other rights and defenses that are or may
become available to Guarantor, including, without limitation, any
and all rights or defenses Guarantor may have by reason of
protection afforded to the principal with respect to any of the
Guaranteed Obligations or to any other guarantor of any of the
Guaranteed Obligations with respect to such guarantor’s
obligations under its guaranty, in either case, pursuant to the
antideficiency or other laws of this state limiting or discharging
the principal’s indebtedness or such other guarantor’s
obligations; and
(b) Guarantor waives all rights and defenses that
Guarantor may have because Borrower’s debt is secured by real
property. This means, among other things:
(i) Lender may collect from Guarantor without first
foreclosing on any real or personal property collateral pledged by
Borrower;
(ii) If Lender forecloses on any real property collateral
pledged by Borrower:
(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;
(B) Lender may collect from Guarantor even if the Lender, by
foreclosing on the real property collateral, 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; and
(c) Guarantor waives all rights and defenses arising
out of an election of remedies by Lender, even though that election
of remedies, such as a nonjudicial foreclosure with respect to
security for the Guaranteed Obligations, has destroyed
Guarantor’s rights of subrogation and reimbursement against
Borrower, and even though that election of remedies by Lender has
destroyed Guarantor’s rights of contribution against another
guarantor of any of the Guaranteed Obligations.
No other
provision of this Guaranty shall be construed as limiting the
generality of any of the covenants and waivers set forth in this
Section 3.
4. Guarantor represents
and warrants to Lender that Guarantor has a financial interest in
Borrower or is otherwise affiliated with Borrower. In that regard,
Guarantor agrees that Lender’s agreement to make the Loan to
Borrower is of substantial and material benefit to Guarantor and
further agrees as follows:
(a) Guarantor shall continue to be liable under this
Guaranty and the provisions hereof will remain in full force and
effect notwithstanding (i) any modification, agreement or
stipulation between Borrower and Lender or their respective
successors and assigns, with respect to the Loan Documents or the
Swap Contracts or the obligations
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encompassed thereby, including, without limitation, the Guaranteed
Obligations, (ii) Lender’s waiver of or failure to
enforce any of the terms, covenants or conditions contained in the
Loan Documents or the Swap Contracts or in any modification
thereof, (iii) any discharge or release of Borrower or any
other guarantor from any liability with respect to the Guaranteed
Obligations, (iv) any discharge, release, exchange or subordination
of any real or personal property then held by Lender as security
for the performance of the Guaranteed Obligations, (v) any
additional security taken for the Guaranteed Obligations, whether
real or personal property, (vi) any foreclosure or other
realization on any security for the Guaranteed Obligations,
regardless of the effect upon Guarantor’s subrogation,
contribution or reimbursement rights against Borrower or any other
guarantor, (vii) any additional loans or financial
accommodations to Borrower or (viii) the manner or order by
which payments are applied to principal, interest or other
obligations under the Loan Documents and the Swap Contracts.
Without limiting the generality of the foregoing, Guarantor hereby
agrees that Guarantor’s liability shall continue even if
Lender alters any obligations under the Loan Documents or the Swap
Contracts in any respect or Lender’s remedies or rights
against Borrower are in any way impaired or suspended without
Guarantor’s consent.
(b) Guarantor’s liability under this Guaranty
shall continue until all sums due under the Note have been paid in
full and until all Guaranteed Obligations to Lender have been
satisfied, and shall not be reduced by virtue of any payment by
Borrower of any amount due under the Note or under any of the Loan
Documents or Swap Contracts or Lender’s recourse to any
collateral or security.
(c) Guarantor represents and warrants to Lender that
Guarantor now has and will continue to have full and complete
access to any and all information concerning the transactions
contemplated by the Loan Documents or Swap Contracts or referred to
therein, the value of the assets owned or to be acquired by
Borrower, Borrower’s financial status and its ability to pay
and perform the Guaranteed Obligations owed to Lender. Guarantor
further represents and warrants that Guarantor has reviewed and
approved copies of the Loan Documents and Swap Contracts and is
fully informed of the remedies Lender may pursue, with or without
notice to Borrower, in the event of default under the Note or other
Loan Documents or Swap Contracts. So long as any of the Guaranteed
Obligations remains unsatisfied or owing to Lender, Guarantor shall
keep fully informed as to all aspects of Borrower’s financial
condition and the performance of the Guaranteed Obligations.
(d) Guarantor acknowledges and agrees that Guarantor
may be required to perform the Guaranteed Obligations in accordance
with the terms hereof notwithstanding the fact that the Loan has
fully matured, that the outstanding principal balance thereof is
fully due and payable and that Borrower is in default of its
obligation to pay the full amount due under the Note on the
maturity thereof.
5. The liability of
Guarantor under this Guaranty is a guaranty of payment and
performance and not of collectibility, and is not conditioned or
contingent upon the genuineness, validity, regularity or
enforceability of the Loan Documents, Swap Contracts or other
instruments relating to the creation or performance of the
Guaranteed Obligations or the pursuit by Lender of any remedies
which any now has or may hereafter have with respect thereto under
the Loan Documents or Swap Contracts, at law, in equity or
otherwise. Guarantor hereby agrees
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that
Guarantor shall be liable even if Borrower had no liability at the
time of execution of any of the Loan Documents or Swap Contracts or
thereafter ceases to be liable, and Guarantor’s liability may
be larger in amount and more burdensome than that of Borrower.
Guarantor’s liability hereunder shall not be limited or
affected in any way by any impairment or any diminution or loss of
value of any security or collateral for the Loan, whether caused by
hazardous substances or otherwise, Lender’s failure to
perfect a security interest in such security or collateral or any
disability or other defense of Borrower or any other
guarantor.
6. Guarantor hereby
waives to the extent permitted by law: (i) all notices to
Guarantor, to Borrower, or to any other Person, including without
limitation notices of the acceptance of this Guaranty or the
creation, renewal, extension, modification, accrual of any of the
Guaranteed Obl
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