GUARANTY AGREEMENT
AGREEMENT
dated June 13, 2008 by NWJ Companies Inc., a Delaware corporation, and Xxxxxxxx
X. Xxxxxxxx III (individually a “Guarantor” and collectively the “Guarantors”)
for the benefit of WILSHIRE ENTERPRISES, INC. (the “Company”), a Delaware
corporation.
BACKGROUND
A. Concurrently
herewith the Company is entering into an agreement and plan of merger (the
“Merger Agreement”) with NWJ Apartment Holdings Corp., a Maryland corporation
(“Parent”), and NWJ Acquisition Corp., a Delaware corporation (“Merger Sub”).
Unless otherwise defined herein, all capitalized terms used herein shall have
the respective meanings assigned to such terms in the Merger
Agreement.
B. To
induce
the Company to enter into the Merger Agreement, Guarantors have agreed to
execute and deliver this Guaranty to the Company.
C. Parent
is
under the control of Guarantors, and Guarantors will derive substantial benefit
from the Merger Agreement and the transactions contemplated
thereby.
NOW,
THEREFORE, in consideration of the above premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, Guarantors agree as
follows:
1. Guarantors,
jointly and severally, irrevocably, unconditionally and absolutely guarantee
to
the Company, and thereby become primarily liable for, all obligations and
liabilities of Parent to the Company to pay the Parent Termination Fee when
due
pursuant to Section 8.2(b)(iii) of the Merger Agreement (the “Guaranteed
Obligations”).
2. This
Agreement shall be a continuing guaranty and shall remain in full force and
effect until all of the Guaranteed Obligations are fully, finally and
irrevocably paid or the Merger is consummated, and shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
of any of the Guaranteed Obligations is rescinded or must otherwise be returned
by the Company upon the insolvency, bankruptcy or reorganization of Parent
or
otherwise, all as though such a payment had not been made.
3. This
Agreement is a guaranty of payment and not of collection. The Company shall
not
be required to exhaust any right or remedy or take any action against Parent
or
any other Person or any other Guarantor.
4. Until
all
of the Guaranteed Obligations have been paid in full or the Merger consummated,
the liability of Guaranty Guarantors under this Agreement shall in no way be
released or affected (i) by any act or circumstance which might but for this
paragraph be deemed a legal or equitable discharge of any Guarantor, or (ii)
by
reason of the death, disability or insolvency of any Guaranty Guarantor, or
(iii) by reason of any waiver, extension, modification, forbearance or delay
or
other act or omission of the Company or its failure to proceed promptly or
otherwise with respect to the Guaranteed Obligations or this Guaranty Agreement,
or (iv) by the commencement, existence or completion of any proceeding against
Parent or otherwise related to the collection and enforcement of the Guaranteed
Obligations, or (v) by reason of any action taken or omitted or circumstance
which might vary the risk or affect the rights or remedies of Guarantors with
respect to the Guaranteed Obligations or this Guaranty Agreement. Guarantors
expressly waive and surrender any defenses to their liability hereunder based
upon any of the foregoing acts, omissions, agreements or waivers of the Company,
it being the purpose and intent of the parties hereto that the obligations
of
Guarantors hereunder are absolute and unconditional.
5. This
Agreement shall be a continuing, absolute and unconditional guaranty regardless
of the validity, regularity, enforceability or legality of any of the Guaranteed
Obligations. In the event that for any reason one or more of the provisions
of
this Guaranty or their application to any Person or circumstance shall be held
to be invalid, illegal or unenforceable in any respect or to any extent, such
provisions shall nevertheless remain valid, legal and enforceable in any such
other respects and to such extent as may be permissible. In addition, any such
invalidity, illegality or unenforceability shall not affect any other provision
hereof, but this Guaranty shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
6. Any
notice, demand or request hereunder shall be in writing and shall be deemed
to
have been sufficiently given for all purposes when personally presented or
sent
by certified or registered mail, return receipt requested, or sent by
responsible overnight delivery service if to Guarantors to the addresses set
forth below their signatures hereto, with a copy of any such notice, demand
or
request similarly and simultaneously given to:
Blank
Rome LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000-0000
Attention: Xxxxxx
X.
Xxxxxx, Esq.
Such
notice shall be deemed to be given when received if delivered personally or
two
days after the date mailed if sent by certified or registered mail or the next
business day following delivery to an overnight delivery service. Any notice
of
any change in such address shall also be given in the manner set forth above.
Whenever the giving of notice is required, the giving of such notice may be
waived in writing by the party entitled to receive such notice.
7. No
modification of this Guaranty shall be effective unless in writing and signed
by
the Company and Guarantors.
8. In
the
event of the death of Xxxxxxxx X. Xxxxxxxx III prior to the termination of
this
Guaranty, Parent shall have the right to obtain the release of one or both
of
the Guarantors hereunder upon providing to the Company a replacement guaranty
executed by one or more guarantors reasonably acceptable to the
Company.
-2-
9. The
use
of any gender in this Agreement shall include all genders. This Agreement shall
be binding upon Guarantors, their heirs, executors, administrators and assigns,
and shall inure to the benefit of the Company, its successors and
assigns.
10. This
Agreement shall be construed in accordance with and governed in all respects
by
the laws of the State of Delaware.
11. This
Agreement constitutes the entire agreement of the parties hereto with respect
to
the subject matter hereof and supersede any and all prior agreements, written
or
oral, with respect to the subject matter hereof.
[Signature
page follows]
-3-
IN
WITNESS WHEREOF, Guarantors have executed this Agreement as of the date set
forth above.
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NWJ
COMPANIES INC.
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By:
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/s/ Xxxxxxxx
X. Xxxxxxxx
III
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Xxxxxxxx
X. Xxxxxxxx III
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President
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Address:
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0
Xxxx 00xx Xxxxxx
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Xxx
Xxxx, XX 00000
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/s/
Xxxxxxxx X. Xxxxxxxx
III
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XXXXXXXX
X. XXXXXXXX III
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Address:
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0
Xxxx 00xx Xxxxxx
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Xxx
Xxxx, XX 00000
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Accepted
and Agreed to:
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By: /s/
Xxxxxx Xxxxxx
Izak
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Name:
Xxxxxx Xxxxxx Xxxx
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Title:
Chairman of the Board
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