GUARANTY
THIS
GUARANTY (“Guaranty”) is
executed as of March 31, 2006, by LIGHTSTONE HOLDINGS, LLC, a Delaware limited
liability company ("Guarantor”), for
the benefit of WACHOVIA BANK, NATIONAL ASSOCIATION (“Lender”).
A. LVP ST.
AUGUSTINE OUTLETS LLC, a Delaware limited liability company (the “Borrower”) is
indebted to Lender with respect to a loan (“Loan”)
pursuant to that certain promissory note dated of even date herewith, payable to
the order of Lender in the original principal amount of TWENTY-SEVEN MILLION
TWO HUNDRED FIFTY THOUSAND MILLION AND 00/100 DOLLARS ($27,250,000)
(together with all renewals, modifications, increases and extensions thereof,
collectively, the “Note”), which
is secured by the liens and security interests created by that certain Note and
Mortgage Modification Agreement Evidencing Renewal Promissory Note Including
Future Advance and Amended and Restated Mortgage, Security Agreement and Fixture
Filing (the “Security
Instrument”),
between Lender and Borrower, dated of even date herewith and further evidenced,
secured or governed by the other Loan Documents (as defined in the Security
Instrument); and
B. Lender is
not willing to make the Loan, or otherwise extend credit, to Borrower unless
Guarantor unconditionally guarantees payment and performance to Lender of the
Guaranteed Obligations (as hereinafter defined); and
C. Guarantor
is the owner of a direct or indirect interest in Borrower, and Guarantor will
directly benefit from Lender’s making the Loan to Borrower.
NOW,
THEREFORE, as an inducement to Lender to make the Loan to Borrower thereunder,
and to extend such additional credit as Lender may from time to time agree to
extend under the Loan Documents, and for other good and valuable consideration,
the receipt and legal sufficiency of which are hereby acknowledged, the parties
do hereby agree as follows:
ARTICLE I
NATURE AND SCOPE OF
GUARANTY
Section
1.1 Guaranty of
Obligation.
Guarantor hereby absolutely, irrevocably and unconditionally guarantees to
Lender (and its successors and assigns) the payment and performance of the
Guaranteed Obligations as and when the same shall be due and payable, whether
upon demand by Lender or by lapse of time, by acceleration of maturity or
otherwise. Guarantor hereby absolutely, irrevocably and unconditionally
covenants and agrees that Guarantor is liable for the Guaranteed Obligations as
a primary obligor, and that Guarantor shall fully perform each and every term
and provision hereof.
Section
1.2 Definition of Guaranteed
Obligations. As used
herein, the term “Guaranteed
Obligations” shall
be deemed to include, and Guarantor shall be liable for, and shall indemnify,
defend and hold Lender harmless from and against, any and all Losses (as
hereinafter defined) incurred or suffered by Lender and/or any of its affiliates
and arising out of or in connection with the matters listed below:
(a) fraud or
intentional misrepresentation or failure to disclose a material fact or any
untrue statement of a material fact or omission to state a material fact in any
the written materials and/or information provided to Lender or any of its
affiliates in all cases by or on behalf of Borrower or Guarantor or any of their
Affiliates in connection with the Security Instrument, the Note or the other
Loan Documents;
(b) the
misappropriation by Borrower, Guarantor or any of their Affiliates of any tenant
security deposits or Rent received by Borrower (or received by its Partners) (i)
more than one (1) month in advance of the due date thereof (other than Rents
deemed to be "additional rents" under Leases) or (ii) after the occurrence of an
Event of Default and not either delivered to Lender (or Lender's agent) or
applied to ordinary and necessary expenses of owning and operating the Property;
(c) the
misapplication or conversion by Borrower, Guarantor or any of their Affiliates
of Loss Proceeds to the extent actually paid by the insurer;
(d) any arson
or physical waste to or of the Property or damage to the Property in each case
resulting from the intentional acts or intentional omissions of Borrower or any
Affiliate of Borrower;
(e) Borrower’s
failure to comply with the provisions of Sections 2.02(g), 16.01 or
16.02,
inclusive, of the Security Instrument;
(f) the
exercise of any right or remedy under any federal, state or local forfeiture
laws resulting in the loss or impairment of the lien of the Security Instrument,
or the priority thereof, against the Property;
(g) any
claims, actions or proceedings initiated by Borrower (or any Affiliate of
Borrower) alleging that the relationship of Borrower and Lender is that of joint
venturers, partners, tenants in common, joint tenants or any relationship other
than that of debtor and creditor; or
(h) Borrower's
failure to pay any valid taxes, assessments, mechanic's liens, materialmen's
liens or other liens which could create liens on any portion of the Property
superior to the lien or security title of the Security Instrument or the other
Loan Documents, except, (1) with respect to any such taxes or assessments, to
the extent that funds have been deposited with Lender pursuant to the terms of
the Security Instrument specifically for the applicable taxes or assessments and
not applied by Lender to pay such taxes and (2) to the extent that there is
insufficient available cash flow at any time to enable Borrower to pay all
operating expenses (including taxes and assessments) then due and payable,
necessary property improvement expenditures and amounts due and payable under
the Loan Documents (as demonstrated to the reasonable satisfaction of Lender)
and Borrower applies all available cash flow to the payment of any one or more
of the foregoing items.
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In
addition, in the event (i) any proceeding, action, petition or filing under the
Bankruptcy Code, or any similar state or federal law now or hereafter in effect
relating to bankruptcy, reorganization or insolvency, or the arrangement or
adjustment of debts of Borrower shall be filed by, consented to or acquiesced in
by Borrower or Guarantor, or filed against Borrower by any Affiliate (as defined
in the Security Instrument) of either Borrower or Guarantor, or if Borrower or
Guarantor or any Affiliate of either of them shall institute any proceeding for
Borrower’s dissolution or liquidation, or Borrower shall make an assignment for
the benefit of creditors, (ii) of a Transfer in violation of the provisions of
Article IX of the Security Instrument, or (iii) Borrower or any Affiliate
contests or interferes with Lender’s enforcement of its rights and remedies
hereunder or under the Loan documents by asserting any defense (x) as to the
validity of the obligations under the Loan Documents or in any way relating to
the structure of the Company or the enforceability of Lender’s rights and
remedies under the Loan Documents, or (y) for the purpose of delaying, hindering
or impairing Lender’s rights and remedies under the Loan Documents (provided
that if any such Person obtains a non-appealable order successfully asserting a
Contest, Guarantor shall have no liability under this clause (iii)), then the
Guaranteed Obligations shall also include the unpaid balance of the
Debt.
For
purposes of this Guaranty, the term “Losses”
includes any and all claims, suits, liabilities (including, without limitation,
strict liabilities), actions, proceedings, obligations, debts, actual damages,
actual losses, actual costs, actual expenses, diminutions in value, fines,
penalties, charges, fees, expenses, judgments, awards, amounts paid in
settlement, punitive damages of whatever kind or nature (including but not
limited to reasonable attorneys’ fees and other costs of defense).
Section
1.3 Nature of
Guaranty. This
Guaranty is an irrevocable, absolute, continuing guaranty of payment and
performance, is joint and several and is not a guaranty of collection. This
Guaranty shall continue to be effective with respect to any Guaranteed
Obligations arising or created after any attempted revocation by Guarantor and
after (if Guarantor is a natural Person) Guarantor’s death (in which event this
Guaranty shall be binding upon Guarantor’s estate and Guarantor’s legal
representatives and heirs). The obligations of Guarantor under this Guaranty
shall survive any foreclosure proceeding, any foreclosure sale and delivery of
any deed in lieu of foreclosure, and any release of record of the Security
Instrument. The fact that at any time or from time to time the Guaranteed
Obligations may be increased or reduced shall not release or discharge the
obligation of Guarantor to Lender with respect to the Guaranteed Obligations.
This Guaranty may be enforced by Lender and any subsequent holder of the Note
and shall not be discharged by the assignment or negotiation of all or part of
the Note.
Section
1.4 Guaranteed Obligations Not
Reduced by Offset. The
Guaranteed Obligations and the liabilities and obligations of Guarantor to
Lender hereunder shall not be reduced, discharged or released because or by
reason of any existing or future offset, claim or defense of Borrower, or any
other Person, against Lender or against payment of the Guaranteed Obligations,
whether such offset, claim or defense arises in connection with the Guaranteed
Obligations (or the transactions creating the Guaranteed Obligations) or
otherwise.
Section
1.5 Payment by
Guarantor. If all
or any part of the Guaranteed Obligations shall not be punctually paid when due,
whether at maturity or earlier by acceleration or otherwise, Guarantor shall,
immediately upon demand by Lender, and without presentment, protest, notice of
protest, notice of non-payment, notice of intention to accelerate the maturity,
notice of acceleration of the maturity, or any other notice whatsoever, pay in
lawful money of the United States of America, the amount due on the Guaranteed
Obligations to Lender at Lender’s address as set forth herein. Such demand(s)
may be made at any time coincident with or after the time for payment of all or
part of the Guaranteed Obligations, and may be made from time to time with
respect to the same or different items of Guaranteed Obligations. Such demand
shall be deemed made, given and received in accordance with the notice
provisions hereof.
3
Section
1.6 No Duty to Pursue
Others. It
shall not be necessary for Lender (and Guarantor hereby waives any rights which
Guarantor may have to require Lender), in order to enforce this Guaranty against
Guarantor, first to (i) institute suit or exhaust its remedies against Borrower
or others liable on the Loan or the Guaranteed Obligations or any other Person,
(ii) enforce Lender’s rights against any collateral which shall ever have been
given to secure the Loan, (iii) enforce Lender’s rights against any other
guarantors of the Guaranteed Obligations, (iv) join Borrower or any others
liable on the Guaranteed Obligations in any action seeking to enforce this
Guaranty, (v) exhaust any remedies available to Lender against any collateral
which shall ever have been given to secure the Loan, or (vi) resort to any other
means of obtaining payment of the Guaranteed Obligations. Lender shall not be
required to mitigate damages or take any other action to reduce, collect or
enforce the Guaranteed Obligations.
Section
1.7 Waivers.
Guarantor agrees to the provisions of the Loan Documents, and hereby waives
notice of (i) any loans or advances made by Lender to Borrower, (ii) acceptance
of this Guaranty, (iii) any amendment or extension of the Note or of any other
Loan Documents, (iv) the execution and delivery by Borrower and Lender of any
other loan or credit agreement or of Borrower’s execution and delivery of any
promissory notes or other documents arising under the Loan Documents or in
connection with the Property, (v) the occurrence of any breach by Borrower or
Event of Default, (vi) Lender’s transfer or disposition of the Guaranteed
Obligations, or any part thereof, (vii) sale or foreclosure (or posting or
advertising for sale or foreclosure) of any collateral for the Guaranteed
Obligations, (viii) protest, proof of non-payment or default by Borrower, or
(ix) any
other action at any time taken or omitted by Lender, and, generally, all demands
and notices of every kind in connection with this Guaranty, the Loan Documents,
any documents or agreements evidencing, securing or relating to any of the
Guaranteed Obligations.
Section
1.8 Payment of
Expenses. In the
event that Guarantor should breach or fail to timely perform any provisions of
this Guaranty, Guarantor shall, immediately upon demand by Lender, pay Lender
all costs and expenses (including court costs and reasonable attorneys’ fees)
incurred by Lender in the enforcement hereof or the preservation of Lender’s
rights hereunder. The covenant contained in this section shall survive the
payment and performance of the Guaranteed Obligations.
Section
1.9 Effect of
Bankruptcy. In the
event that, pursuant to any insolvency, bankruptcy, reorganization, receivership
or other debtor relief law, or any judgment, order or decision thereunder,
Lender must rescind or restore any payment, or any part thereof, received by
Lender in satisfaction of the Guaranteed Obligations, as set forth herein, any
prior release or discharge from the terms of this Guaranty given to Guarantor by
Lender shall be without effect, and this Guaranty shall remain in full force and
effect. It is the intention of Borrower and Guarantor that Guarantor’s
obligations hereunder shall not be discharged except by Guarantor’s performance
of such obligations and then only to the extent of such
performance.
4
Section
1.10 Deferral of Rights of
Subrogation, Reimbursement and Contribution.
(a) Notwithstanding
any payment or payments made by Guarantor hereunder, unless and until payment in
full of the Debt (and including interest accruing on the Note after the
commencement of a proceeding by or against Borrower under the Bankruptcy Code
which interest the parties agree shall remain a claim that is prior and superior
to any claim of Guarantor notwithstanding any contrary practice, custom or
ruling in cases under the Bankruptcy Code) Guarantor will not assert or exercise
any right of Lender or of Guarantor against Borrower to recover the amount of
any payment made by Guarantor to Lender by way of subrogation, reimbursement,
contribution, indemnity, or otherwise arising by contract or operation of law,
and Guarantor shall not have any right of recourse to or any claim against
assets or property of Borrower.
(b) Until
payment in full of the Debt (and including interest accruing on the Note after
the commencement of a proceeding by or against Borrower under the Bankruptcy
Code which interest the parties agree shall remain a claim that is prior and
superior to any claim of Guarantor notwithstanding any contrary practice, custom
or ruling in cases under the Bankruptcy Code), Guarantor agrees not to accept
any payment or satisfaction of any kind of indebtedness of Borrower to Guarantor
and hereby assigns such indebtedness to Lender, including the right to file
proof of claim and to vote thereon in connection with any such proceeding under
the Bankruptcy Code, including the right to vote on any plan of reorganization.
If any amount of the type more particularly described in the first sentence of
this Section 1.10(b) shall nevertheless be paid to Guarantor by Borrower prior
to payment in full of all sums owed to Lender under the Loan Documents (the
“Obligations”), such
amount shall be held in trust for the benefit of Lender and shall forthwith be
paid to Lender to be credited and applied to the Guaranteed Obligations, whether
matured or unmatured.
(c) The
provisions of this Section 1.10 shall survive the termination of this Guaranty,
and any satisfaction and discharge of Borrower by virtue of any payment, court
order or any applicable law.
Section
1.11 Intentionally
Omitted.
Section
1.12 “Borrower”. The
term “Borrower” as used
herein shall include any new or successor corporation, association, partnership
(general or limited), joint venture, limited liability company, trust or other
individual or organization formed as a result of any merger, reorganization,
sale, transfer, devise, gift or bequest of Borrower or any interest in
Borrower.
5
ARTICLE 2
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR’S OBLIGATIONS
Guarantor
hereby consents and agrees to each of the following, and agrees that Guarantor’s
obligations under this Guaranty shall not be released, diminished, impaired,
reduced or adversely affected by any of the following, and waives any common
law, equitable, statutory or other rights (including without limitation rights
to notice) which Guarantor might otherwise have as a result of or in connection
with any of the following:
Section
2.1 Modifications. Any
renewal, extension, increase, modification, alteration or rearrangement of all
or any part of the Guaranteed Obligations, Note, Loan Documents, or other
document, instrument, contract or understanding between Borrower and Lender, or
any other parties, pertaining to the Guaranteed Obligations or any failure of
Lender to notify Guarantor of any such action.
Section
2.2 Adjustment. Any
adjustment, indulgence, forbearance or compromise that might be granted or given
by Lender to Borrower or any Guarantor.
Section
2.3 Condition of Borrower or
Guarantor. The
insolvency, bankruptcy, arrangement, adjustment, composition, liquidation,
disability, dissolution or lack of power of Borrower, Guarantor or any other
Person at any time liable for the payment of all or part of the Guaranteed
Obligations; or any dissolution of Borrower or Guarantor, or any sale, lease or
transfer of any or all of the assets of Borrower or Guarantor, or any changes in
the shareholders, partners or members of Borrower or Guarantor; or any
reorganization of Borrower or Guarantor.
Section
2.4 Invalidity of Guaranteed
Obligations. The
invalidity, illegality or unenforceability of all or any part of the Guaranteed
Obligations, or any document or agreement executed in connection with the
Guaranteed Obligations, for any reason whatsoever, including without limitation
the fact that (i) the Guaranteed Obligations, or any part thereof, exceed the
amount permitted by law, (ii) the act of creating the Guaranteed Obligations or
any part thereof, is ultra xxxxx, (iii) the officers or representatives
executing the Note or the other Loan Documents or otherwise creating the
Guaranteed Obligations acted in excess of their authority, (iv) the Guaranteed
Obligations violate applicable usury laws, (v) Borrower has valid defenses,
claims or offsets (whether at law, in equity or by agreement) which render the
Guaranteed Obligations wholly or partially uncollectible from Borrower, (vi) the
creation, performance or repayment of the Guaranteed Obligations (or the
execution, delivery and performance of any document or instrument representing
part of the Guaranteed Obligations or executed in connection with the Guaranteed
Obligations, or given to secure the repayment of the Guaranteed Obligations) is
illegal, uncollectible or unenforceable, or (vii) the Note or any of the other
Loan Documents have been forged or otherwise are irregular or not genuine or
authentic, it being agreed that Guarantor shall remain liable hereon regardless
of whether Borrower or any other Person be found not liable on the Guaranteed
Obligations or any part thereof for any reason.
Section
2.5 Release of
Obligors. Any
full or partial release of the liability of Borrower on the Guaranteed
Obligations, or any part thereof, or of any co-guarantors, or any other Person
or entity now or hereafter liable, whether directly or indirectly, jointly,
severally, or jointly and severally, to pay, perform, guarantee or assure the
payment of the Guaranteed Obligations, or any part thereof, it being recognized,
acknowledged and agreed by Guarantor that Guarantor may be required to pay the
Guaranteed Obligations in full without assistance or support of any other
Person, and Guarantor has not been induced to enter into this Guaranty on the
basis of a contemplation, belief, understanding or agreement that other parties
will be liable to pay or perform the Guaranteed Obligations, or that Lender will
look to other parties to pay or perform the Guaranteed Obligations.
6
Section
2.6 Other
Collateral. The
taking or accepting of any other security, collateral or guaranty, or other
assurance of payment, for all or any part of the Guaranteed
Obligations.
Section
2.7 Release of
Collateral. Any
release, surrender, exchange, subordination, deterioration, waste, loss or
impairment (including without limitation negligent, willful, unreasonable or
unjustifiable impairment) of any collateral, property or security, at any time
existing in connection with, or assuring or securing payment of, all or any part
of the Guaranteed Obligations.
Section
2.8 Care and
Diligence. The
failure of Lender or any other Person to exercise diligence or reasonable care
in the preservation, protection, enforcement, sale or other handling or
treatment of all or any part of such collateral, property or security, including
but not limited to any neglect, delay, omission, failure or refusal of Lender
(i) to take or prosecute any action for the collection of any of the Guaranteed
Obligations, (ii) to foreclose, or initiate any action to foreclose, or, once
commenced, prosecute to completion any action to foreclose upon any security
therefor, or (iii) to take or prosecute any action in connection with any
instrument or agreement evidencing or securing all or any part of the Guaranteed
Obligations.
Section
2.9 Unenforceability. The
fact that any collateral, security, security interest or lien contemplated or
intended to be given, created or granted as security for the repayment of the
Guaranteed Obligations, or any part thereof, shall not be properly perfected or
created, or shall prove to be unenforceable or subordinate to any other security
interest or lien, it being recognized and agreed by Guarantor that Guarantor is
not entering into this Guaranty in reliance on, or in contemplation of the
benefits of, the validity, enforceability, collectibility or value of any of the
collateral for the Guaranteed Obligations.
Section
2.10 Offset. The
Note, the Guaranteed Obligations and the liabilities and obligations of
Guarantor to Lender hereunder, shall not be reduced, discharged or released
because of or by reason of any existing or future right of offset, claim or
defense of Borrower against Lender, or any other Person, or against payment of
the Guaranteed Obligations, whether such right of offset, claim or defense
arises in connection with the Guaranteed Obligations (or the transactions
creating the Guaranteed Obligations) or otherwise.
Section
2.11 Merger. The
reorganization, merger or consolidation of Borrower into or with any other
corporation or entity.
7
Section
2.12 Preference. Any
payment by Borrower to Lender is held to constitute a preference under
bankruptcy laws, or for any reason Lender is required to refund such payment or
pay such amount to Borrower or someone else.
Section
2.13 Other Actions Taken or
Omitted. Any
other action taken or omitted to be taken with respect to the Loan Documents,
the Guaranteed Obligations, or the security and collateral therefor, whether or
not such action or omission prejudices Guarantor or increases the likelihood
that Guarantor will be required to pay the Guaranteed Obligations pursuant to
the terms hereof, it is the unambiguous and unequivocal intention of Guarantor
that Guarantor shall be obligated to pay the Guaranteed Obligations when due,
notwithstanding any occurrence, circumstance, event, action, or omission
whatsoever, whether or not contemplated, and whether or not otherwise or
particularly described herein, which obligation shall be deemed satisfied only
upon the full and final payment and satisfaction of the Guaranteed
Obligations.
ARTICLE 3
REPRESENTATIONS AND
WARRANTIES
To induce
Lender to enter into the Loan Documents and extend credit to Borrower, Guarantor
represents and warrants to Lender as follows:
Section
3.1 Benefit.
Guarantor is an Affiliate of Borrower, is the owner of a direct or indirect
interest in Borrower, and has received, or will receive, direct or indirect
benefit from the making of this Guaranty with respect to the Guaranteed
Obligations.
Section
3.2 Familiarity and
Reliance.
Guarantor is familiar with, and has independently reviewed books and records
regarding, the financial condition of Borrower and is familiar with the value of
any and all collateral intended to be created as security for the payment of the
Note or Guaranteed Obligations; provided, however, Guarantor is not relying on
such financial condition or the collateral as an inducement to enter into this
Guaranty.
Section
3.3 No Representation by
Lender. Neither
Lender nor any other Person has made any representation, warranty or statement
to Guarantor in order to induce Guarantor to execute this Guaranty.
Section
3.4 Guarantor’s Financial
Condition. As of
the date hereof, and after giving effect to this Guaranty and the contingent
obligation evidenced hereby, Guarantor is, and will be, Solvent.
Section
3.5 Legality. The
execution, delivery and performance by Guarantor of this Guaranty and the
consummation of the transactions contemplated hereunder do not, and will not,
contravene or conflict with any law, statute or regulation whatsoever to which
Guarantor is subject or constitute a default (or an event which with notice or
lapse of time or both would constitute a default) under, or result in the breach
of, any indenture, mortgage, deed of trust, charge, lien, or any contract,
agreement or other instrument to which Guarantor is a party or which may be
applicable to Guarantor. This Guaranty is a legal and binding obligation of
Guarantor and is enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors’ rights.
8
Section
3.6 Survival. All
representations and warranties made by Guarantor herein shall survive the
execution hereof.
Section
3.7 Review of
Documents.
Guarantor has examined the Note and all of the Loan Documents.
Section
3.8 Litigation. Except
as otherwise disclosed to Lender, there are no proceedings pending or, so far as
Guarantor knows, threatened before any court or administrative agency which, if
decided adversely to Guarantor, would materially adversely affect the financial
condition of Guarantor or the authority of Guarantor to enter into, or the
validity or enforceability of, this Guaranty.
Section
3.9 Tax
Returns.
Guarantor
has filed all required federal, state and local tax returns and has paid all
taxes as shown on such returns as they have become due. No claims have been
assessed and are unpaid with respect to such taxes.
ARTICLE 4
SUBORDINATION OF CERTAIN
INDEBTEDNESS
Section
4.1 Subordination of All
Guarantor Claims.
As used
herein, the term “Guarantor
Claims” shall
mean all debts and liabilities of Borrower to Guarantor, whether such debts and
liabilities now exist or are hereafter incurred or arise, or whether the
obligations of Borrower thereon are direct, contingent, primary, secondary,
several, joint and several, or otherwise, and irrespective of whether such debts
or liabilities be evidenced by note, contract, open account, or otherwise, and
irrespective of the Person or Persons in whose favor such debts or liabilities
may, at their inception, have been, or may hereafter be created, or the manner
in which they have been or may hereafter be acquired by Guarantor. The Guarantor
Claims shall include, without limitation, all rights and claims of Guarantor
against Borrower (arising as a result of subrogation or otherwise) as a result
of Guarantor’s payment of all or a portion of the Guaranteed Obligations to the
extent the provisions of Section
1.10 hereof
are unenforceable. Upon the occurrence and during the continuance of a Default,
Guarantor shall not receive or collect, directly or indirectly, from Borrower or
any other Person any amount upon the Guarantor Claims.
Section
4.2 Claims in
Bankruptcy.
In the
event of receivership, bankruptcy, reorganization, arrangement, debtor’s relief,
or other insolvency proceedings involving Guarantor as debtor, Lender shall have
the right to prove its claim in any such proceeding so as to establish its
rights hereunder and receive directly from the receiver, trustee or other court
custodian dividends and payments which would otherwise be payable upon Guarantor
Claims. Guarantor hereby assigns such dividends and payments to Lender. Should
Lender receive, for application upon the Guaranteed Obligations, any such
dividend or payment which is otherwise payable to Guarantor, and which, as
between Borrower and Guarantor, shall constitute a credit upon the Guarantor
Claims, then upon payment to Lender in full of the Guaranteed Obligations,
Guarantor shall become subrogated to the rights of Lender to the extent that
such payments to Lender on the Guarantor Claims have contributed toward the
liquidation of the Guaranteed Obligations, and such subrogation shall be with
respect to that portion of the Guaranteed Obligations which would have been
unpaid if Lender had not received dividends or payments upon the Guarantor
Claims.
9
Section
4.3 Payments Held in
Trust.
In the
event that, notwithstanding anything to the contrary in this Guaranty, Guarantor
should receive any funds, payment, claim or distribution which is prohibited by
this Guaranty, Guarantor agrees to hold in trust for Lender an amount equal to
the amount of all funds, payments, claims or distributions so received, and
agrees that it shall have absolutely no dominion over the amount of such funds,
payments, claims or distributions so received except to pay them promptly to
Lender, and Guarantor covenants promptly to pay the same to Lender.
Section
4.4 Liens
Subordinate.
Guarantor
agrees that any liens, security interests, judgment liens, charges or other
encumbrances upon Borrower’s assets securing payment of the Guarantor Claims
shall be and remain inferior and subordinate to any liens, security interests,
judgment liens, charges or other encumbrances upon Borrower’s assets securing
payment of the Guaranteed Obligations, regardless of whether such encumbrances
in favor of Guarantor or Lender presently exist or are hereafter created or
attach. Without the prior written consent of Lender, Guarantor shall not (i)
exercise or enforce any creditor’s right it may have against Borrower, or (ii)
foreclose, repossess, sequester or otherwise take steps or institute any action
or proceedings (judicial or otherwise, including without limitation the
commencement of, or joinder in, any liquidation, bankruptcy, rearrangement,
debtor’s relief or insolvency proceeding) to enforce any liens, mortgages, deeds
of trust, security interests, collateral rights, judgments or other encumbrances
on assets of Borrower held by Guarantor.
ARTICLE 5
MISCELLANEOUS
Section
5.1 No Waiver; Remedies
Cumulative. No
failure or delay on the part of Lender in exercising any right, remedy, power or
privilege hereunder or under the other Loan Documents and no course of dealing
between Guarantor and Lender shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder or
under the other Loan Documents preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege hereunder or
thereunder. The rights and remedies provided herein and in the other Loan
Documents are cumulative and not exclusive of any rights or remedies provided by
law. The giving of notice to or demand on Guarantor which notice or demand is
not required hereunder or under the other Loan Documents shall not entitle
Guarantor to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights, remedies, powers or
privileges of Lender in any circumstances not requiring notice or
demand.
10
Section
5.2 Notices. All
notices, requests and other communications to any party hereunder or under the
Note shall be given in the manner set forth in Article XI of the Security
Instrument, and to each addressee at the address set forth below:
|
Guarantor:
|
Lightstone Holdings, LLC, a
Delaware limited liability company
000
Xxxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxxxx 00000
Xxxxxx
Xxxxx
Facsimile
No.: 000-000-0000
|
|
With a
copy to:
|
Xxxxxxx
Xxxxxxxxx LLP
0
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxxxxx, Esq.
Facsimile:
(000) 000-0000
|
|
Lender:
|
Wachovia Bank, National
Association
Commercial
Real Estate Services
0000
Xxxxxxxx Xxxxx URP - 4, NC 1075
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Facsimile
No.: (000) 000-0000
|
|
With a copy to:
|
Winston & Xxxxxx LLP
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxx X. Xxxxxxx, Esq.
Facsimile
No.: (000) 000-0000
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or such
other address as Guarantor or Lender shall hereafter specify by not less than
ten (10) days prior written notice as provided herein; provided, however, that
notwithstanding any provision of this Section to the contrary, such notice of
change of address shall be deemed given only upon actual receipt thereof.
Rejection or other refusal to accept or the inability to deliver because of
changed addresses of which no notice was given as herein required shall be
deemed to be receipt of the notice, demand, statement, request or
consent.
Section
5.3 Governing Law;
Jurisdiction. This
Guaranty shall be governed by and construed in accordance with the laws of the
State of New York and the applicable laws of the United States of America.
Guarantor hereby irrevocably submits to the jurisdiction of any court of
competent jurisdiction located in the State of New York in connection with any
proceeding out of or relating to this Guaranty.
Section
5.4 Invalid
Provisions. If any
provision of this Guaranty is held to be invalid, illegal or unenforceable in
any respect, this Guaranty shall be construed without such
provision.
11
Section
5.5 Amendments. The
terms of this Guaranty, together with the terms of the other Loan Documents,
constitute the entire understanding and agreement of the parties hereto and
supersede all prior agreements, understandings and negotiations between
Guarantor and Lender with respect to the Guaranteed Obligations. This Guaranty,
and any provisions hereof, may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act on the part of Guarantor
or Lender, but only by an agreement in writing signed by the party against whom
enforcement of any modification, amendment, waiver, extension, change, discharge
or termination is sought.
Section
5.6 Parties Bound;
Assignment. This
Guaranty shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, assigns and legal representatives; provided,
however, that Guarantor may not, without the prior written consent of Lender,
assign any of its rights, powers, duties or obligations hereunder.
Section
5.7 Headings; Construction Of
Documents; Definitions.
The
headings and captions of various sections of this Guaranty are for convenience
of reference only and are not to be construed as defining or limiting, in any
way, the scope or intent of the provisions hereof. Guarantor acknowledges that
it was represented by competent counsel in connection with the negotiation and
drafting of this Guaranty and the other Loan Documents and that neither this
Guaranty nor the other Loan Documents shall be subject to the principle of
construing the meaning against the Person who drafted same. All capitalized
terms not otherwise defined herein shall have the meanings set forth in the
Security Instrument.
Section
5.8 Recitals. The
recital and introductory paragraphs hereof are a part hereof, form a basis for
this Guaranty and shall be considered prima
facie evidence
of the facts and documents referred to therein.
Section
5.9 Counterparts. To
facilitate execution, this Guaranty may be executed in as many counterparts as
may be convenient or required. It shall not be necessary that the signature or
acknowledgment of, or on behalf of, each party, or that the signature of all
Persons required to bind any party, or the acknowledgment of such party, appear
on each counterpart. All counterparts shall collectively constitute a single
instrument. It shall not be necessary in making proof of this Guaranty to
produce or account for more than a single counterpart containing the respective
signatures of, or on behalf of, and the respective acknowledgments of, each of
the parties hereto. Any signature or acknowledgment page to any counterpart may
be detached from such counterpart without impairing the legal effect of the
signatures or acknowledgments thereon and thereafter attached to another
counterpart identical thereto except having attached to it additional signature
or acknowledgment pages.
Section
5.10 Cumulative
Rights. The
rights of Lender under this Guaranty shall be separate, distinct and cumulative
and none shall be given effect to the exclusion of the others. No act of Lender
shall be construed as an election to proceed under any one provision herein to
the exclusion of any other provision. Lender shall not be limited exclusively to
the rights and remedies herein stated but shall be entitled, subject to the
terms of this Guaranty, to every right and remedy now or hereafter afforded by
law.
12
Section
5.11 Waiver Of Counterclaim And
Right To Trial By Jury.
GUARANTOR HEREBY WAIVES THE RIGHT TO ASSERT A COUNTERCLAIM, OTHER THAN A
COMPULSORY COUNTERCLAIM, IN ANY ACTION OR PROCEEDING BROUGHT AGAINST IT BY
LENDER OR ITS AGENTS, AND WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER OR IN ANY COUNTERCLAIM
GUARANTOR MAY BE PERMITTED TO ASSERT HEREUNDER OR WHICH MAY BE ASSERTED BY
LENDER OR ITS AGENTS AGAINST GUARANTOR, OR IN ANY MATTERS WHATSOEVER ARISING OUT
OF OR IN ANY WAY CONNECTED WITH THIS GUARANTY, THE DEBT OR THE GUARANTEED
OBLIGATIONS.
Section
5.12 State Specific
Provisions.
Notwithstanding anything contained herein to the contrary:
(a) This
Guaranty guarantees an indebtedness payable in the State of Florida and shall be
governed by and construed in accordance with the laws of that state. Guarantor
hereby acknowledges that all amounts payable under this Guaranty are payable in
the State of Florida and therefor Guarantor is subject to the personal
jurisdiction of the courts of competent jurisdiction of said state for the
enforcement of this Guaranty. Guarantor waives any and all personal rights under
the laws of said state to object to jurisdiction within said state in the event
of litigation arising under or by reason of this Guaranty.
Nothing
contained herein, however, shall prevent Lender from bringing any action or
exercising any rights against any security and against Guarantor personally, and
against any property of Guarantor, within any other state. Initiating such
proceeding or taking such action in any other state by Lender shall in no event
constitute an implied waiver of the agreement contained herein that the laws of
the State of Florida shall govern the rights and obligations of Guarantor and
Lender hereunder or of the submission herein made by Guarantor to personal
jurisdiction within the State of Florida.
(b) Nothing
herein shall be deemed to obligate any Guarantor to pay any sum of interest
which exceeds the maximum rate of interest which such Guarantor may lawfully be
required to pay under the laws of the state which govern this instrument or
under the applicable laws for regulations of the United States of America, in
the event of conflict between state law and the laws and regulations of the
United States of America, then the laws and regulations of the United States of
America shall govern. Notwithstanding any other provision herein contained in
this Guaranty or in any instrument evidencing this indebtedness, the limitation
imposed by this paragraph shall control and limit the obligations of Guarantor
to pay sums of interest guaranteed by this instrument. In the event any
Guarantor shall pay any sum of interest pursuant to this Guaranty which exceeds
such maximum rate, such overcharge shall be applied in reduction of any other
sum for which such Guarantor is obligated hereunder, if such sum is then due and
payable, or shall be refunded to such Guarantor at the election of the Lender.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
13
IN
WITNESS WHEREOF, Guarantor has duly executed this Guaranty under seal as of the
day and year first above written.
|
WITNESSES:
|
GUARANTOR:
|
||
|
LIGHTSTONE
HOLDINGS LLC, a Delaware limited liability company
|
|||
| /s/ Xxx XxXxxx | |||
| Signature | By: | /s/ Xxxxx Xxxxxxxxxxxx | |
| Xxx XxXxxx | |||
| Print Name | |||
| /s/ Xxxx Xxxx | |||
| Signature | |||
| Xxxx Xxxx | |||
|
Print
Name
|
|||
STATE OF
New
Jersey
COUNTY OF
Ocean
The
foregoing instrument was acknowledged before me this ___ day of March, 2006 by
___________________, the ____________________ and duly authorized agent of
LIGHTSTONE HOLDINGS, LLC, a _________________ limited liability company. He is
personally known to me or has produced _________________________ as
identification.
|
/s/ Xxxx X.
Xxxxx
Notary
Public
Print
Name: Xxxx
Xxxxx
|
My
Commission Expires: 12/22/2010
