GUARANTY OF RECOURSE OBLIGATIONS January 4, 2007
EXHIBIT
10.27
January
4, 2007
FOR VALUE RECEIVED, and to
induce ▇▇▇▇▇▇ BROTHERS HOLDINGS INC., a Delaware corporation (individually and
as lead arranger and administrative agent for itself and certain co-lenders)
(“Lender”),
having an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, to
enter into that certain Loan Agreement (as amended, restated, supplemented or
otherwise modified from time to time, the “Loan Agreement”) of
even date herewith with 1407 BROADWAY
REAL ESTATE LLC, a
Delaware limited liability company (“Borrower”),
having an address at c/o The Lightstone Group, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, for a loan (the
“Loan”),
evidenced by (i) that certain Promissory Note dated of even date herewith in the
stated principal amount of $127,250,000 (as amended, restated, split, severed,
consolidated, supplemented or otherwise modified from time to time, the
“Note”)
(except as otherwise indicated herein, each capitalized term used herein that is
not specifically defined herein shall have the meaning given to such term in the
Loan Agreement), and secured by the Security Instrument and the other Loan
Documents, the undersigned and each other Person who executes and delivers a
joinder hereto in accordance with Section
11(b) hereof
(individually, a “Guarantor” and,
collectively, the “Guarantors”),
hereby absolutely, unconditionally and irrevocably, and jointly and severally as
a primary obligor with all other obligated Persons, guarantees the full and
prompt payment and performance of all of the Guaranteed Obligations (hereinafter
defined).
The
following additional provisions shall govern and apply to this Guaranty of
Recourse Obligations (this “Guaranty”):
1. Guarantors’
Liability.
As used
herein, the term “Guaranteed
Obligations” means
the following:
a. If a Full
Recourse Event occurs, the “Guaranteed
Obligations” shall
mean all of the “Obligations”, as
defined in the Loan Agreement (including the entire principal balance of the
Debt, all accrued interest thereon and all other amounts, costs or expenses
payable pursuant to the Loan Documents) together with all Enforcement Costs
(hereinafter defined).
b. If a
Partial Recourse Event occurs, but a Full Recourse Event has not occurred, the
“Guaranteed
Obligations” shall
mean the sum of (i) all Losses (hereinafter defined) plus (ii) all Enforcement
Costs.
Unless
and until a Full Recourse Event and/or a Partial Recourse Event occurs, Lender
shall not pursue any claims under this Guaranty.
As used
herein, the term “Losses” shall
mean any and all claims, suits, liabilities (including strict liabilities),
actions, proceedings, obligations, debts, damages, actual and out-of-pocket
losses, out-of-pocket costs (including any and all costs and expenses incurred
in the preservation, restoration and protection of the Property), expenses,
fines, penalties, charges, fees, judgments, awards, amounts paid in settlement,
punitive damages, foreseeable consequential damages and damages, actual and
out-of-pocket costs and expenses of whatever kind or nature (including
reasonable attorneys’ fees and other costs of defense) arising out of, incurred
because of or related to the occurrence of any Partial Recourse Event. The term
“Enforcement Costs” shall
mean any and all out-of-pocket costs and expenses, including reasonable legal
expenses and attorneys’ fees, (a) described in Section 7.4 of the Loan
Agreement, (b) incurred or paid by ▇▇▇▇▇▇ in protecting Lender’s interest in the
Property, or (c) incurred in collecting any amount payable under this Guaranty
or the other Loan Documents, or (d) incurred in enforcing Lender’s rights under
this Guaranty or with respect to the Property, in each of clauses (a) through
(d) whether or not any legal proceeding is commenced hereunder or thereunder and
whether or not any Default or Event of Default shall have occurred and is
continuing, together with interest thereon at the Default Rate (as defined in
each Note) from the date paid or incurred by Lender until the costs and expenses
described in this sentence are paid by ▇▇▇▇▇▇▇▇ or a Guarantor. Enforcement
Costs shall include any of the foregoing incurred during or following the (i)
exercise of any remedy by Lender under this Guaranty or the other Loan Documents
or following the occurrence of an Event of Default, (ii) foreclosure of any
mortgage prior to or subsequent to the Security Instrument not permitted under
the Loan Documents, whether or not Lender is made a party to, or otherwise
becomes involved in, such proceedings, in which proceeding Lender is made a
party, (iii) bankruptcy, insolvency, reorganization, rehabilitation, liquidation
or other similar proceeding in respect of any Borrower Party or an assignment by
any Borrower Party for the benefit of its creditors, (iv) enforcement of the
Obligations of or collection of any payments due from any Guarantor under this
Guaranty, or from any Borrower Party under any of the other Loan Documents or
with respect to the Property, or (v) incurring of any costs or expenses by
Lender in connection with any refinancing or restructuring of the credit
arrangements provided under this Guaranty or the other Loan Documents in the
nature of a “work-out”, modification or restructuring. To the extent Lender
receives any payment by any Person (including Guarantor) or pursuant to the
exercise of any rights or remedies under the Loan Documents (including as a
result of any foreclosure or transfer in lieu of foreclosure on any collateral
or security for the Loan), Lender may apply any such payment to Obligations that
are not Guaranteed Obligations until all Obligations that are not Guaranteed
Obligations are paid in full, unless at the time of any such payment by
Guarantor from Guarantor’s own funds (and not from the Property or any
collateral or security for the Loan) Guarantor advises Lender that such payment
is being made on account of the Guaranteed Obligations.
2. No Waiver. Nothing
contained in this Guaranty shall (i) prevent Lender from exercising any
rights or remedies against (a) any Person (including Borrower) who may be liable
for the Obligations or the Guaranteed Obligations or (b) any property or
collateral encumbered by any of the Loan Documents or from joining each or any
Guarantor in any action whereby Lender seeks to preserve any potential liability
of such Guarantor under this Guaranty (such as preserving a deficiency judgment
after foreclosing on the Property or otherwise pursuing any other collateral),
or to pursue ▇▇▇▇▇▇’s rights with respect to the Property or any other
collateral for the Loan, (ii) be deemed to be a release or impairment of the
Obligations or the Guaranteed Obligations or any security interest in favor of
Lender encumbering the Property or any other collateral for the Loan, or (iii)
affect Lender’s rights under or pursuant to any other guaranty or indemnity. To
the extent Guarantors are liable for the Guaranteed Obligations, each Guarantor
shall be jointly and severally liable for the Guaranteed Obligations with
Borrower and any other Person who may be liable.
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3. No
Limitation. Nothing
contained in this Guaranty shall limit any Guarantor’s liability arising under
or pursuant to any other Loan Document, including the Environmental and
Hazardous Substance Indemnification Agreement. The Guaranteed Obligations shall
be in addition to and shall not limit or in any way affect the obligations of
any Guarantor under any other existing or future guaranties unless said other
guaranties are expressly modified or revoked in a writing signed by ▇▇▇▇▇▇. This
Guaranty is independent of the Obligations of Borrower and/or any other Person
under the other Loan Documents. Lender may bring a separate action to enforce
the provisions hereof against each or any Guarantor without taking action
against Borrower or any other Person or joining Borrower or any other Person as
a party to such action.
4. Consideration. Each
Guarantor acknowledges that Lender would not have entered into the transactions
contemplated by the Loan Documents without the execution and delivery of this
Guaranty by such Guarantor and the execution and delivery of this Guaranty are
material inducements to Lender to make the Loan and enter into the Loan
Agreement. Each Guarantor further acknowledges that such Guarantor is directly
or indirectly, the owner of an ownership interest in Borrower, and accordingly,
such Guarantor will receive a direct and material benefit from Lender entering
into the Loan Documents and making the Loan to Borrower. Accordingly, each
Guarantor hereby acknowledges and agrees that the consideration received by such
Guarantor for the execution and delivery of this Guaranty is actual and
adequate. Each Guarantor further acknowledges and agrees that such ▇▇▇▇▇▇▇▇▇ has
had the benefit of legal counsel in connection with the execution and delivery
of this Guaranty and such Guarantor has not executed and delivered this Guaranty
under any fraud, duress, undue influence or coercion of any kind. Each Guarantor
hereby acknowledges that: (a) the obligations undertaken by such Guarantor in
this Guaranty are complex in nature, and (b) numerous possible defenses to the
enforceability of the Guaranteed Obligations may presently exist and/or may
arise hereafter, and (c) as part of Lender’s consideration for entering into
this transaction, Lender has specifically bargained for the waiver and
relinquishment by such Guarantor of all such defenses. Given all of the above,
each Guarantor does hereby represent and confirm to Lender that such Guarantor
is fully informed regarding, and that such Guarantor does thoroughly understand:
(i) the nature of all such possible defenses, and (ii) the circumstances under
which such defenses may arise, and (iii) the benefits which such defenses might
confer upon such Guarantor, and (iv) the legal consequences to such Guarantor of
waiving such defenses. Each Guarantor acknowledges that such Guarantor makes
this Guaranty with the intent that this Guaranty and all of the informed waivers
herein shall each and all be fully enforceable by ▇▇▇▇▇▇, and that Lender is
induced to enter into this transaction in material reliance upon the presumed
full enforceability thereof.
5. Guaranty.
Notwithstanding anything to the contrary contained herein, the maximum liability
of each Guarantor hereunder shall not exceed the amount which is one dollar less
than the amount which would otherwise make this Guaranty unenforceable pursuant
to any fraudulent conveyance, bankruptcy, insolvency or similar
law.
6. Guaranty
Absolute. This
Guaranty is an irrevocable, absolute, continuing guaranty of payment and
performance and not a guaranty of collection. This Guaranty may not be revoked
by any Guarantor and shall continue to be effective with respect to any
Guaranteed Obligations (as applicable) arising or created after any attempted
revocation by such Guarantor and, if such Guarantor is a natural person, after
such Guarantor’s death (in which event this Guaranty shall be binding upon such
Guarantor’s estate and such Guarantor’s legal representatives and heirs). The
fact that at any time or from time to time the Obligations or the Guaranteed
Obligations may be increased or reduced pursuant to the Loan Documents,
amendments to the Loan Documents or otherwise shall not release or discharge the
obligation of any Guarantor to Lender with respect to the Guaranteed
Obligations. This Guaranty may be enforced by ▇▇▇▇▇▇ and any subsequent holder
of the Note and shall not be discharged by the assignment or negotiation of all
or part of such Note. The liability of each Guarantor hereunder shall be
absolute, unconditional and irrespective of:
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(a) lack of
validity, genuineness or enforceability of the Note or any other Loan Document
between Lender and Borrower or other Person relating thereto;
(b) change in
the time, manner, place of payment of the indebtedness under, or in any other
term of, or any other amendment or waiver of, or any consent to, or departure
from, any Loan Document or other agreement between Borrower or any other Person
and Lender, including the Note;
(c) insolvency
of, or voluntary or involuntary bankruptcy, assignment for the benefit of
creditors, reorganization or other similar proceedings affecting Borrower or any
other Person or any of their respective assets;
(d) other
circumstance, other than satisfaction of the Obligations by payment in full,
which might otherwise constitute a defense available to, or a discharge of,
Borrower or any other Person in respect of the Obligations or the Guaranteed
Obligations;
(e) at any
time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Obligations or the Guaranteed
Obligations shall be extended or modified, or such performance or compliance
shall be waived;
(f) any of
the acts mentioned in any of the provisions of the Note or any other Loan
Documents shall be done or omitted;
(g) the
exercise of any of ▇▇▇▇▇▇’s rights or remedies under the Loan
Documents;
(h) the
maturity of any of the Obligations or the Guaranteed Obligations shall be
accelerated, or any of the Obligations or the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right under the Note or
any other Loan Documents shall be waived or any other guarantee of any of the
Obligations or the Guaranteed Obligations or any security therefor shall be
released or exchanged in whole or in part or otherwise dealt with;
or
(i) any Lien
or security interest granted to, or in favor of, the Lender as security for any
of the Obligations or the Guaranteed Obligations shall fail to be
perfected.
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No
payment made by any Guarantor, any other guarantor or any other Person, or
received or collected by Lender from any Guarantor, any other guarantor or any
other Person by virtue of any action or proceeding or set off or application at
any time in reduction of or in payment of the Obligations or the Guaranteed
Obligations shall be deemed to modify, release or otherwise affect the liability
of any Guarantor under this Guaranty for the balance of the Guaranteed
Obligations. Notwithstanding any such payments received or collected by Lender
in connection with the Obligations or the Guaranteed Obligations, each Guarantor
shall, subject to the limitations herein contained, remain liable for the
balance of the Guaranteed Obligations until all the Guaranteed Obligations are
paid in full. This Guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the Obligations or the
Guaranteed Obligations is rescinded or must otherwise be returned by Lender upon
the insolvency, bankruptcy or reorganization of Borrower or any other Person
otherwise, all as though such payment had not been made.
Lender
shall not be required to inquire into the powers of any Borrower Party or any
respective member, partner, shareholder, manager, officer, director or any other
agent acting or purporting to act on behalf of any Borrower Party, or any other
signatory to any of the Loan Documents, and monies, advances, renewals or
credits described in this Guaranty in fact borrowed or obtained from Lender in
professed exercise of such powers shall be deemed to form part of the debts and
liabilities hereby guaranteed, notwithstanding that such borrowing or obtaining
of monies, advances, renewals, or credits shall be in excess of the powers of
any Borrower Party or any respective partner, member, manager, officer, director
or other agent of any Borrower Party aforesaid, or be in any way irregular,
defective or informal.
7. Dealing with the Borrower
and Others.
(a) The
Obligations and the Guaranteed Obligations shall not be released, discharged,
limited or in any way affected by anything done, suffered or permitted by Lender
in connection with any monies or credit advanced by Lender to Borrower or on
behalf of Borrower pursuant to the Loan Documents or any security therefor,
including any loss of or in respect of any security received by Lender from
Borrower or any other Person. It is agreed that Lender, without releasing,
discharging, limiting or otherwise affecting in whole or in part the Obligations
or the Guaranteed Obligations and each Guarantor’s liabilities under this
Guaranty may, without limiting the generality of the foregoing:
(i) Grant
time, renewals, extensions, indulgences, releases, waivers, modifications and
discharges to Borrower or any other Person guaranteeing payment of or otherwise
liable with respect to the Obligations or the Guaranteed Obligations (each such
party, an “Obligor”).
(ii) Take or
abstain from taking security or collateral from Borrower or any Obligor or from
perfecting security or collateral of Borrower or any Obligor.
(iii) Take, or
delay in taking or refusing to take, any and all action with respect to the Note
and the other Loan Documents (regardless of whether same might vary the risk or
alter the rights, remedies or recourses of Guarantors), including specifically
(but without limitation) the settlement or compromise of any amount allegedly
due thereunder, all without notice or consideration to or the consent of any
Guarantor.
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(iv) Apply all
monies at any time received from Borrower or any Obligor upon such part of the
Obligations or the Guaranteed Obligations as Lender may see fit (subject to the
requirements of the Loan Documents).
(v) Otherwise
deal with Borrower or any Obligor as Lender may see fit.
(vi) Declare
all sums owing to Lender under the Note and the other Loan Documents due and
payable upon the occurrence of an Event Default under the Loan Documents or
decline to do so.
(vii) Otherwise
modify the terms of any of the Loan Documents.
(viii) Release,
substitute or add any one or more endorsers of the Note or guarantors of
Borrower’s obligations under the Note or the other Loan Documents.
(b) Lender
shall not be bound or obliged to exhaust recourse against Borrower or any other
Obligor or any security, guaranty, indemnity, mortgage or collateral Lender may
hold or take any other action (other than to make demand pursuant to
Section
13 of this
Guaranty) before being entitled to payment from Guarantors hereunder. It is the
intent of Guarantors and Lender that the Guaranteed Obligations are primary,
absolute and unconditional under any and all circumstances and that, until all
of Borrower’s obligations under the Loan Documents are fully and finally
satisfied, such obligations shall not be discharged or released, in whole or in
part, by any act or occurrence which might be deemed a legal or equitable
discharge or release of any Guarantor.
8. Subrogation. No
Guarantor shall exercise any right of subrogation with respect to Borrower or
any Obligor with respect to payments made to Lender hereunder or otherwise until
such time as all Guaranteed Obligations shall have been irrevocably paid in
full. In the case of the liquidation, winding-up or bankruptcy of Borrower or
any Obligor (whether voluntary or involuntary) or in the event that Borrower or
any Obligor shall make an arrangement or composition with its creditors, Lender
shall have the right to rank first for its full claim and to receive all
payments in respect thereof until its claim has been paid in full and each
Guarantor shall, subject to the limitations herein contained, continue to be
liable to Lender for any balance of the Guaranteed Obligations. To the extent
permitted by law, each Guarantor irrevocably releases and waives any subrogation
rights or right of contribution or indemnity (whether arising by operation of
law, contract or otherwise) which such Guarantor may have against the Property
or any part thereof, any collateral pledged as security for the Loan, Borrower
or any Obligor or any Person constituting such Borrower or any Obligor if and to
the extent any such right or rights would give rise to a claim under the
Bankruptcy Code that payments to Lender with respect to the Obligations
constitute a preference in favor of such Guarantor or a claim under the
Bankruptcy Code that any such preference is recoverable from Lender. If any
Guarantor becomes subrogated by payment or otherwise to any of the rights of
Lender pursuant to any of the Loan Documents or applicable law, the rights of
Lender to which such Guarantor shall be subrogated shall be accepted by such
Guarantor “as is” and without any representation or warranty of any kind by
Lender, express or implied, with respect to the legality, value, validity or
enforceability of any of such rights, or the existence, availability, value,
merchantability or fitness for any particular purpose of any collateral and
shall be without recourse to Lender. Unless and until all of the Debt is
irrevocably paid in full and all Obligations under the Loan are irrevocably paid
and performed in full, each Guarantor further unconditionally and irrevocably
waives any right to enforce any remedy which Lender now has or may hereafter
have against Borrower or any Obligor, and further waives any benefit of, and any
right to participate in, any security now or hereafter held by ▇▇▇▇▇▇, and
waives any defense based upon an election of remedies by ▇▇▇▇▇▇ which destroys
or otherwise impairs any subrogation rights of such Guarantor or the right of
such Guarantor to proceed against Borrower or any Obligor for reimbursement, or
both.
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9. Representations and
Warranties. Each
Guarantor hereby represents and warrants to Lender that:
(a) Such
Guarantor is not insolvent (as such term is defined or determined for purposes
of the Bankruptcy Code or any other applicable law), and the execution and
delivery of this Guaranty will not make such Guarantor insolvent (as such term
is defined or determined for purposes of the Bankruptcy Code or any other
applicable law).
(b) Such
Guarantor has all requisite power and authority to carry on its business, to
hold title to and own the property it owns, to execute, deliver and perform this
Guaranty and each of the other Loan Documents to which it is a party, and to
consummate the transactions contemplated hereby and thereby.
(c) The
execution and delivery of this Guaranty and the other Loan Documents to which it
is a party and the performance by such Guarantor of the Guaranteed Obligations
and any other obligations hereunder or thereunder do not and will not (i)
contravene, violate or conflict with in any material respect, or result in a
breach of or default under, any contractual obligation of such Guarantor or to
which such Guarantor or such Guarantor’s assets is or are subject, or (ii)
violate in any material respect any provision of any Legal Requirement, or (iii)
result in or require the creation or imposition of any Lien in favor of any
Person other than Lender on any of the properties or revenues of such Guarantor
pursuant to any Legal Requirement or material contractual obligation of such
Guarantor.
(d) No
consent, approval, or authorization of, or registration, declaration, or filing
with, any Governmental Authority or any other Person is required and has not
been obtained in writing by such Guarantor, in connection with the execution,
delivery, and performance by such Guarantor of each of the Loan Documents to
which it is a party or any of the transactions contemplated by such Loan
Documents.
(e) This
Guaranty, and each of the other Loan Documents to which such Guarantor is a
party, has been duly authorized, executed and delivered by it, and this
Guaranty, and each term and provision hereof, is the legal, valid and binding
obligation of such Guarantor enforceable against such Guarantor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, moratorium, insolvency, reorganization or similar laws affecting
creditors, rights generally and general principles of equity (whether considered
in an action or proceeding in equity or at law).
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(i) All
financial statements delivered to Lender at any time by or on behalf of such
Guarantor (a) are true and correct in all material respects, (b) fairly present
in a manner consistent with prior statements submitted to Lender the respective
financial conditions of the subjects thereof and for the periods referenced
therein, and (c) have been prepared in accordance with Acceptable Accounting
Principles consistently applied and there has been no Material Adverse Change in
the financial position of such Guarantor since the respective dates of (or
periods covered by) such statements. Without limiting the foregoing, all assets
shown on such financial statements, unless clearly designated to the contrary on
such financial statements, (A) are free and clear of any exemption or any claim
of exemption of such Guarantor or any other Person, (B) accurately reflect all
debt and prior pledges or encumbrances of or on any of such Guarantor's assets
(direct or indirect) at the date of the financial statements and at all times
thereafter and (C) are owned individually (and solely managed) by such Guarantor
and not jointly with any spouse or other Person.
(f) There are
no conditions precedent to the effectiveness of this Guaranty.
(g) There are
no legal proceedings or claims or demands pending against or, to such
Guarantor’s knowledge threatened against, such Guarantor or any of its assets
that either (a) would adversely affect its ability to comply with this Guaranty
or any of the other Loan Documents or could render Guarantor insolvent or (b)
seek a judgment against Guarantor or any of its assets in excess of
$1,000,000.
(h) Neither
this Guaranty nor any financial information, certificate or statement furnished
to Lender by or on behalf of such Guarantor contains any untrue statement of a
material fact or intentionally omits to state a material fact necessary to make
the statements herein and therein, in the light of the circumstances under which
they are made, not misleading.
(i) No
conditions exist which would prevent such Guarantor from complying with the
provisions of this Guaranty or any of the other Loan Documents to which it is a
party within the time limits set forth herein and therein.
(j) Such
Guarantor has filed all tax returns and reports required by law to have been
filed by it, and has paid all taxes, assessments and governmental charges levied
upon it or any of its assets which are due and payable, except any such taxes or
charges which are being contested in good faith by appropriate proceedings and
for which adequate reserves have been set aside.
(k) Such
Guarantor has adequate means of obtaining from sources other than Lender, on a
continuing basis, financial and other information pertaining to Borrower's
financial condition, the condition (financial and otherwise) of the Property and
▇▇▇▇▇▇▇▇'s activities relating thereto and the status of Borrower's performance
of the Obligations under the Loan Documents, and such Guarantor shall keep
adequately informed from such means of any facts, events or circumstances which
might in any way affect such Guarantor's risks hereunder.
(l) Such
Guarantor is not an "employee benefit plan" (within the meaning of section 3(3)
of ERISA) to which ERISA applies and no assets of such Guarantor constitute
assets of any such plan.
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(m) Such
Guarantor is not engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock, and no proceeds of the Loan will be used
for a purpose which violates, or would be inconsistent with Federal Reserve
System Board of Governors' Board Regulation U or X (as such terms are used in
Federal Reserve System Board of Governors' Board Regulation U or X or any
regulations substituted therefor, as from time to time in effect).
(n) Such
Guarantor is not an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(o) All
amounts payable by such Guarantor under the Loan Documents may be made free and
clear of, and without deduction for or on account of, any tax.
10. Transfers. Each
Guarantor shall comply with the restrictions on Transfer set forth in
Section
5.22 of the
Loan Agreement.
11. Financial Reporting of
Guarantors. Each
Guarantor shall provide or cause to be provided to Lender the
following:
(a) Within
one hundred twenty (120) days after the end of each Fiscal Year, a copy of such
Guarantor's balance sheet, income statement, cash flows statement and statement
of changes in financial position for such Fiscal Year. Each such annual report
shall (i) include a schedule of all material contingent liabilities and all
other notes and schedules relating thereto, (ii) be in a form reasonably
satisfactory to the Lender, (iii) be prepared in accordance with Acceptable
Accounting Principles consistently applied, and (iv) be certified to Lender by
such Guarantor.
(b) Copies of
such Guarantor’s federal and state income tax returns for each taxable year, as
filed with the appropriate Governmental Authority, within forty-five (45) days
after filing of same.
(c) From time
to time promptly after ▇▇▇▇▇▇’s request, such additional information, reports
and statements (including quarterly financial statements) regarding the business
operations and financial condition of such Guarantor (including, without
limitation, financial information on any investment or partnership interests or
membership interests or holdings or any other asset which is reflected on such
Guarantor’s financial statements) as Lender may reasonably request.
12. Omitted.
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13. Demand for
Payment.
(a) Subject
to the limitations on Guarantors’ liability set forth herein, each Guarantor
shall make payment of the Guaranteed Obligations and other amounts payable by
such Guarantor hereunder within ten (10) Business Days after demand therefor is
made by Lender to such Guarantor in writing. Lender shall not be required to
seek payment of the Obligations or the Guaranteed Obligations from Borrower or
any Obligor or any other Person (including any other guarantor) prior to
exercising Lender’s rights and enforcing ▇▇▇▇▇▇’s remedies under this Guaranty
and the other Loan Documents. It shall not be necessary for Lender, in order to
exercise ▇▇▇▇▇▇’s rights and enforce ▇▇▇▇▇▇’s remedies under this Guaranty or
under the other Loan Documents, first to institute suit or exhaust Lender’s
remedies against the Property or any other collateral given as security for the
Loan, Borrower or any other Person liable for the Debt (including any other
guarantor or any other Guarantor under this Guaranty), to have Borrower or any
other obligated Person (including any other guarantor or any other Guarantor
under this Guaranty) joined with any Guarantor in any suit brought under this
Guaranty or to enforce Lender’s rights against any security which shall ever
have been given to secure the Debt. However, in the event Lender elects in
▇▇▇▇▇▇’s sole discretion to enforce and/or exercise any remedies it may possess
with respect to the Property or any other security for the Obligations prior to
demanding payment from any Guarantor, each Guarantor shall nevertheless be
obligated hereunder for the Guaranteed Obligations and not repaid or recovered
incident to the exercise of such remedies. The obligations of each Guarantor
hereunder are independent of the obligations of ▇▇▇▇▇▇▇▇. A separate action may
be brought and prosecuted against each or any Guarantor, subject to the
limitations on each Guarantor’s liability herein expressed. Each Guarantor
expressly waives any rights under any statute or the common law, providing any
requirement that Lender institute suit or exercise or exhaust Lender’s remedies
or rights against the Property or any other collateral or security for the Loan,
Borrower or against any other Person, guarantor, or other collateral guaranty
securing all or any part of the Obligations, prior to enforcing any rights
Lender has under this Guaranty, or otherwise. Each Guarantor agrees that such
Guarantor’s liability hereunder is primary, absolute and unconditional without
regard to the liability of any other party, it being understood that this
Guaranty is a guaranty of payment and performance and not merely of collection.
Without limitation to the foregoing, each Guarantor waives, to the extent the
same are applicable: (i) any defense based upon any legal disability or other
defense of Borrower, any other guarantor or other Person, or by reason of the
cessation or limitation of the liability of Borrower from any cause other than
full payment of all sums payable under the Note or any of the other Loan
Documents; (ii) any defense based upon any lack of authority of the officers,
directors, partners or agents acting or purporting to act on behalf of Borrower
or any principal of Borrower or any defect in the formation of Borrower or any
principal of Borrower; (iii) any defense based upon the application by Borrower
of the proceeds of the Loan for purposes other than the purposes represented by
Borrower to Lender or intended or understood by Lender or any Guarantor; (iv)
any and all rights and defenses arising out of an election of remedies by
▇▇▇▇▇▇; (v) any defense based upon ▇▇▇▇▇▇’s failure to disclose to any Guarantor
any information concerning the Property, ▇▇▇▇▇▇’s underwriting of the Loan and
the Property, ▇▇▇▇▇▇▇▇’s financial condition or any other circumstances bearing
on ▇▇▇▇▇▇▇▇’s ability to pay all sums payable under the Note or any of the other
Loan Documents; (vi) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither larger in amount
nor in any other respects more burdensome than that of a principal; (vii) any
defense based upon ▇▇▇▇▇▇’s election, in any proceeding instituted under the
Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code
or any successor statute; (viii) any defense based upon any borrowing or any
grant of a security interest under Section 364 of the Bankruptcy Code;
(ix) presentment, demand, protest and notice of any kind (except as
expressly required herein); (x) the benefit of any statute of limitations
affecting the liability of any Guarantor hereunder or the enforcement hereof;
(xi) any defense arising by reason of any insolvency, death, insanity, minority,
dissolution or any other defense of Borrower, or any other surety, co-maker,
endorser or guarantor of Borrower’s obligations under the Loan Documents, it
being agreed that each Guarantor shall remain liable hereon regardless of
whether Borrower or any other such Person be found not liable thereon for any
reason; (xii) all suretyship defenses of every kind and nature; and (xiii) any
claim any Guarantor might otherwise have against Lender by virtue of ▇▇▇▇▇▇’s
invocation of any right, remedy or recourse permitted Lender hereunder or under
the other Loan Documents. Each Guarantor further
waives any and all rights and defenses that such Guarantor may have because the
Borrower’s debt is secured by real property; this means, among other things,
that: (1) Lender may collect from such Guarantor without first foreclosing
on any real or personal property collateral pledged by Borrower; (2) if Lender
forecloses on any real property collateral pledged by Borrower, then (A) the
amount of the Guaranteed Obligations 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 such Guarantor even if
Lender, by foreclosing on the real property collateral, has destroyed any right
such Guarantor may have to collect from Borrower. Finally,
each Guarantor agrees that the performance of any act or any payment which tolls
any statute of limitations applicable to the Loan Documents shall similarly
operate to toll the statute of limitations applicable to such Guarantor’s
liability hereunder.
10
(b) This
Guaranty may not be revoked by any Guarantor and shall continue to be effective
with respect to the Guaranteed Obligations arising or created after any
attempted revocation by any Guarantor. The liquidation, dissolution or
withdrawal of Borrower or any Guarantor shall not terminate or affect this
Guaranty. Each Guarantor agrees that to the extent Borrower makes a payment or
payments to Lender, which payment or payments or any part thereof are at any
time invalidated, declared to be fraudulent or preferential, set aside or
required for any of the foregoing reasons or for any other reason to be repaid
or paid over to a custodian, trustee, receiver, or any other party under any
bankruptcy act, state or federal law, common law or equitable cause, then to the
extent of such payment or repayment, the Guaranteed Obligations or any part
thereof intended to be satisfied shall be revived and continued in full force
and effect as if said payment or repayment had not been made and each Guarantor
shall, subject to the limitations on its liability herein contained, be
primarily liable for such Guaranteed Obligations and any prior release or
discharge from the terms of this Guaranty given to such Guarantor by Lender
shall be without effect, and this Guaranty shall remain in full force and effect
to the extent of such amount required to be repaid or paid over as aforesaid.
Each Guarantor agrees that this Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time payment or performance of any of
the Obligations or the Guaranteed Obligations, or any part thereof, is avoided,
rescinded or waived and must otherwise be restored, disgorged, reimbursed or
repaid by Lender and shall continue in full force and effect as long as there
exists a possibility that any payment or performance of any of the Obligations
or the Guaranteed Obligations may be avoided, rescinded or waived and so
restored, disgorged, reimbursed or repaid. Each Guarantor, jointly and
severally, agrees to indemnify the Lender on demand for all reasonable costs and
expenses (including reasonable fees of counsel) incurred by the Lender in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law. Each Guarantor acknowledges that a
principle purpose of this Guaranty is to ensure payment of the Guaranteed
Obligations to Lender in the event of the bankruptcy or insolvency of Borrower,
the commencement of proceedings by or against Borrower under the Bankruptcy
Code, or the appointment of a trustee or receiver for the estate or assets, or
any part thereof, of Borrower, and that Lender is entering into the Loan
Documents in reliance upon the enforceability of this Guaranty in the event of
the bankruptcy or insolvency of Borrower, the appointment of a trustee or
receiver for the assets, or any part thereof, of Borrower, or the commencement
of proceedings by or against Borrower under the Bankruptcy Code. Each Guarantor
shall remain liable for the Guaranteed Obligations notwithstanding any
extension, reduction, modification, composition or other alteration of the
Obligations or the Guaranteed Obligations as a result of any proceeding under
the Bankruptcy Code (as the Obligations and the Guaranteed Obligations existed
without giving effect to any such extension, reduction, modification,
composition or other alteration). Accordingly, each Guarantor further
acknowledges and agrees that in the event that proceedings by ▇▇▇▇▇▇ against
▇▇▇▇▇▇▇▇ are stayed by or in any court for any reason, or in the event that the
Loan Documents are terminated or not enforced by action of a court or trustee in
such proceedings, such stay, termination or unenforceability shall not prevent
or prohibit any action by Lender upon this Guaranty, notwithstanding any
potential allegation by any Guarantor that enforcement of this Guaranty may in
any manner inhibit or prevent the reorganization or rehabilitation of Borrower.
Each Guarantor acknowledges and agrees that such Guarantor’s efforts are not
necessary for a successful reorganization or rehabilitation of Borrower or any
other Person and such Guarantor therefore waives any right to seek a stay or
injunction of any proceeding against such Guarantor with respect to this
Guaranty whether based on Section 105 of the Bankruptcy Code or
otherwise.
11
(c) In any
bankruptcy or other proceeding in which the filing of claims is required by law,
each Guarantor shall file, at the option of Lender (which shall be exercised in
Lender’s sole and absolute discretion), all claims which such Guarantor may have
against Borrower relating to any indebtedness of Borrower to such Guarantor and
shall assign to Lender all rights of such Guarantor thereunder. If any Guarantor
does not file any such claim, ▇▇▇▇▇▇, as attorney-in-fact for such Guarantor, is
hereby authorized to do so in the name of such Guarantor or, in ▇▇▇▇▇▇’s
discretion, to assign the claim to a nominee and to cause proof of claim to be
filed in the name of ▇▇▇▇▇▇’s nominee. The foregoing power of attorney is
coupled with an interest and cannot be revoked. Lender or its nominee shall have
the right to accept or reject any plan proposed in such proceeding and to take
any other action which a party filing a claim is entitled to do. In all such
cases, whether in administration, bankruptcy or otherwise, the Person or Persons
authorized to pay such claim shall pay to Lender the amount payable on such
claim and, to the full extent necessary for that purpose, each Guarantor hereby
assigns to Lender all of such Guarantor’s rights to any such payments or
distributions; provided,
however, that
the Guaranteed Obligations shall not be satisfied except to the extent that
Lender receives cash by reason of any such payment or distribution. If ▇▇▇▇▇▇
receives anything hereunder other than cash, the same shall be held as
collateral for amounts due under this Guaranty. In the event of any foreclosure
sales of the Property and/or any other collateral covered by the Loan Documents,
the proceeds of such sales shall be applied first to the discharge of that
portion of the Guaranteed Obligations then remaining unpaid as to which such
Guarantor is not fully personally liable pursuant to this Guaranty, it being the
express intention of the parties that the application of the proceeds of such
foreclosure sales shall be in such a manner as not to extinguish or reduce such
Guarantor’s personal liability hereunder until all of the Guaranteed Obligations
as to which such Guarantor is not personally liable hereunder have been paid in
full. Nothing contained in this Section
13 shall be
construed to require that Lender foreclose the liens and security interests
created in the Loan Documents as a condition precedent to bringing an action
against any Guarantor upon this Guaranty, or as an agreement that any
Guarantor’s liability is limited to any deficiency remaining after such a
foreclosure.
14. Waiver of Notice of
Acceptance. Each
Guarantor hereby waives notice of acceptance of this Guaranty.
15. Additional
Guaranties. This
Guaranty is in addition and without prejudice to any other guaranties of any
kind (whether or not in the same form as this instrument) now or hereafter held
by Lender with respect to the Debt. Lender shall not be obligated to proceed
under any other guaranty or security with respect to any or all of the
Obligations or the Guaranteed Obligations before being entitled to payment from
each or any Guarantor under this Guaranty.
16. GOVERNING
LAW. THIS INSTRUMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THIS
CHOICE OF LAW IS MADE PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION
5.1401.
17. WAIVER OF TRIAL BY
JURY. LENDER BY ACCEPTING THIS GUARANTY
AND EACH GUARANTOR HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS
GUARANTY. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY EACH GUARANTOR AND LENDER, AND IS INTENDED TO ENCOMPASS EACH
INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO TRIAL BY JURY WOULD OTHERWISE
ACCRUE OR ARISE. EACH PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE OTHER
PARTY.
18. Addresses of
Notices. All
notices, demands, and other communications provided for hereunder shall be in
writing and shall be given or made in the manner set forth in the Loan Agreement
and addressed as set forth below or as to each party at such other address or
addresses within the continental United States of America as shall be designated
by such party in a written notice to each other party complying as to delivery
with the terms of this Section
18:
| If to Lender: | ▇▇▇▇▇▇ Brothers Holdings Inc. | ||
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
MTS
No.: WH4463
|
12
| with copies to: |
▇▇▇▇▇▇
Brothers Holdings Inc.
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
MTS
No.: WH4463
|
||
| and | |||
|
▇▇▇▇,
Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇. ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|||
| and | |||
|
▇▇▇▇,
Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Esq.
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|||
| with a copy to | |||
| Servicer: |
TriMont
Real Estate Advisors, Inc.
Monarch
Tower
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
MTS
No.: WH4463/Asset No.: 1152701
|
||
| If to Owner | |||
| or Borrower: | 1407 Broadway Real Estate LLC
▇▇▇▇
▇▇▇▇▇▇▇▇ Mezz LLC
c/o
The Lightstone Group
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
13
| with a copy to: | |||
|
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ LLP
▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
19. This
Section shall not be construed in any way to affect or impair any waiver of
notice or demand provided in this Guaranty or in any other Loan Document or to
require giving of notice or demand to or upon any Person in any situation or for
any reason except as may otherwise be specifically provided for in this Guaranty
or the other Loan Documents.
20. No Waiver,
Remedies. 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. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law. Any amendments to, or
revisions of, any provisions of this Guaranty must be in writing and signed by
Guarantors and Lender to be effective. Any waiver of any provision of this
Guaranty must be in writing and signed by the party against whom such waiver is
sought to be enforced.
21. Benefit and Binding
Nature. This
Guaranty is a continuing guaranty of payment and shall (a) remain in full force
and effect until irrevocable payment in full of the Guaranteed Obligations and
all other amounts payable hereunder, (b) be binding upon each Guarantor, such
Guarantor’s personal representatives, executors, administrators, heirs,
distributees and successors and assigns, and (c) inure to the benefit of and be
enforceable by ▇▇▇▇▇▇ and its respective successors and assigns.
22. Jurisdiction.
EACH
GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
NEW YORK STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN THE COUNTY
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT, AND EACH GUARANTOR HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT, OR TO THE EXTENT PERMITTED BY LAW, IN
SUCH FEDERAL COURT. EACH GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT SUCH GUARANTOR MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN SUCH COURT. THIS
CONSENT TO JURISDICTION IS MADE PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5.1402. EACH
GUARANTOR DOES HEREBY DESIGNATE ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ESQ., AS ITS AGENT FOR SERVICE OF
PROCESS AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND
WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO SUCH GUARANTOR IN THE
MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF
PROCESS UPON SUCH GUARANTOR, IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE
OF NEW YORK. A COPY OF SUCH SERVICE OF PROCESS SHALL BE DELIVERED TO: ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ LLP, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ATTENTION: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ESQ.
14
23. Subordination. Any
indebtedness of Borrower or any Obligor to any Guarantor now or hereafter
existing is hereby subordinated to the Guaranteed Obligations. If Lender so
requests, (a) all instruments evidencing such indebtedness shall be duly
endorsed and delivered to Lender, (b) all security for such indebtedness
shall be duly assigned and delivered to Lender, (c) such indebtedness shall
be enforced, collected and held by such Guarantor as trustee for Lender and
shall be paid over to Lender on account of the Loan but without reducing or
affecting in any manner the liability of such Guarantor under the other
provisions of this Guaranty, and (d) such Guarantor shall execute, file and
record such documents and instruments and take such other action as Lender deems
necessary or appropriate to perfect, preserve and enforce Lender’s rights in and
to such indebtedness and any security therefor. If any Guarantor fails to take
any such action, Lender, as attorney-in-fact for such Guarantor, is hereby
authorized to do so in the name of such Guarantor. The foregoing power of
attorney is coupled with an interest and cannot be revoked. Each Guarantor
agrees that such Guarantor will not seek, accept, or retain for such Guarantor’s
own account, any payment from or on behalf of Borrower or any Obligor on account
of such subordinated debt. Any payments to such Guarantor on account of such
subordinated debt shall be collected and received by such Guarantor in trust for
Lender and shall be paid over to Lender on account of the Guaranteed Obligations
without impairing or releasing the obligations of such Guarantor hereunder. Each
Guarantor hereby unconditionally and irrevocably agrees that (i) such Guarantor
will not at any time assert against Borrower or any Obligor (or the estate of
Borrower or any Obligor in the event Borrower or any Obligor becomes bankrupt or
becomes the subject of any case or proceeding under the bankruptcy laws of the
United States of America) any right or claim to indemnification, reimbursement,
contribution or payment for or with respect to any amounts such Guarantor may
pay or be obligated to pay Lender pursuant to this Guaranty, including the
Guaranteed Obligations, and any and all obligations which such Guarantor may
perform, satisfy or discharge, under or with respect to this Guaranty, unless
and until all of the Guaranteed Obligations shall have been irrevocably paid in
full, and (ii) such Guarantor subordinates all such rights and claims (including
“claims” as defined in 11 U.S.C. §§ 101 et seq.) to
indemnification, reimbursement, contribution, exoneration or payment which
Guarantor may now or at any time have against Borrower or any Obligor (or estate
of Borrower or any Obligor in the event Borrower or Obligor becomes bankrupt or
becomes the subject of any case or proceeding under the bankruptcy laws of the
United States of America), whether such rights arise under an express or implied
contract or by operation of law, to each of the obligations of Borrower under
the other Loan Documents and the Loan Agreement unless and until all of the
Guaranteed Obligations shall have been irrevocably paid in full. Each Guarantor
further agrees not to assign, sell, pledge, hypothecate or otherwise transfer
all or any part of the indebtedness of Borrower or any Obligor owing to such
Guarantor.
24. Waivers. All
diligence in collection or protection, and all presentment, demand (except as
provided herein) or protest, and except as provided for herein or any other Loan
Documents, notice to each Guarantor or any other Person of any of the following
are expressly waived: maturity, extension of time, change in nature or form of
the Obligations or the Guaranteed Obligations, acceptance of further security,
release of further security, composition or agreement arrived at as to the
amount of, or the terms of, the Obligations or the Guaranteed Obligations,
adverse change in the financial condition of Borrower or any Obligor or any
other fact which might materially increase the risk to any Guarantor, protest,
acceleration, intent to accelerate, dishonor, default, non-payment and the
creation and existence of any of the Obligations or the Guaranteed Obligations,
and of any security and collateral therefor, and of any extensions of credit and
indulgence hereunder and all other provisions of law which are or might be in
conflict with the terms of this Guaranty. In addition to the waivers contained
herein, each Guarantor waives and agrees that such Guarantor shall not at any
time insist upon, plead or in any manner whatever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension, marshalling of assets
or redemption laws, or exemption, whether now or at any time hereafter in force,
which may delay, prevent or otherwise affect the performance by such Guarantor
of the Guaranteed Obligations under, or the enforcement by Lender of, this
Guaranty. Each Guarantor represents, warrants and agrees that, as of the date of
this Guaranty, such Guarantor’s obligations under this Guaranty are not subject
to any offsets, counterclaims or defenses against Lender or Borrower of any
kind. Each Guarantor further agrees that such Guarantor’s obligations under this
Guaranty shall not be subject to any counterclaims or offsets against Lender or
against Borrower of any kind that may arise in the future.
15
25. Instrument for the Payment
of Money. Each
Guarantor hereby acknowledges that this Guaranty constitutes an instrument for
the payment of money, and consents and agrees that Lender, at its sole option,
in the event of a dispute by such Guarantor in the payment of any moneys due
hereunder, shall have the right to bring motion-action under New York CPLR
Section 3213.
26. Additional
Waivers. Lender
may enforce the obligations of each or any Guarantor without first resorting to
or exhausting any security or collateral or without first having recourse to the
Note, the Security Instrument, or any other Loan Documents or the Property,
through foreclosure proceedings or otherwise, provided, however, that nothing
herein shall inhibit or prevent Lender from suing on the Note, foreclosing, or
exercising any power of sale under, the Security Instrument, or exercising any
other rights and remedies thereunder. This Agreement is not collateral or
security for the debt of Borrower pursuant to the Loan. It is not
necessary for an Event of Default to have occurred for Lender to exercise its
rights pursuant to this Agreement. Pursuant to Section
9.1 of the
Loan Agreement, the obligations pursuant to this Agreement are exceptions to any
non-recourse or exculpation provision of the Loan Documents, including
Section
9.1 of the
Loan Agreement, and each Guarantor is fully and personally liable for such
obligations, and its liability is not limited to the original or amortized
principal balance of the Loan or the value of the Property.
27. Interpretation.
Section
1.2 of the
Loan Agreement is hereby incorporated into this Guaranty by reference for all
purposes.
28. Attorneys'
Fees. In the
event Lender is required to incur legal fees or expenses in order to enforce
this Guaranty after a failure by any Guarantor to pay any amount due pursuant to
this Guaranty in accordance with the terms hereof, then Guarantors shall also be
liable to Lender for any reasonable legal fees or expenses so incurred whether
or not suit is filed, expressly including, without limitation, all reasonable
costs, attorneys' fees and expenses incurred by the Lender in connection with
any insolvency, bankruptcy, reorganization, arrangement or other similar
proceedings involving Borrower or any Guarantor as the insolvent or bankrupt
party which in any way affect the exercise by the Lender of its rights and
remedies hereunder.
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29. Loan
Sales. Each
Guarantor agrees that this Guaranty shall be sufficient evidence of the
obligations of such Guarantor to each Investor, and each Guarantor further
agrees to cooperate with Lender at no cost to Guarantor (except as set forth in
the Loan Agreement) in connection with any sale, assignment, securitization,
conveyance, alienation or pledge or other transfer made, including the delivery
of such amendments to this Guaranty as may be reasonably requested by the Lender
or desired by the Rating Agencies or otherwise to effect a Securitization;
provided, however, that such Guarantor shall not be required to modify or amend
this Guaranty if such modification or amendment would modify or amend any of the
economic terms or conditions of this Guaranty or impose any additional liability
or obligation on such Guarantor. Lender may forward to each Investor or any
Rating Agency, each prospective Investor, and any organization maintaining
databases on the underwriting and performance of commercial mortgage loans, all
documents and information which Lender now has or may hereafter acquire relating
to the Loan or to Lender or the Property.
30. Counterparts. This
Guaranty may be executed in any number of counterparts, each of which shall be
an original, but all of which shall constitute one and the same
instrument.
31. Joint and Several
Liability. The
obligations, covenants and agreements of Guarantors hereunder shall be the joint
and several obligations, covenants and agreements of each Guarantor, whether or
not specifically sated hereon.
[SIGNATURE PAGE
FOLLOWS]
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IN
WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the day and
year first above written.
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LIGHTSTONE HOLDINGS LLC
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| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ | |
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Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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| Title: President | ||