EXHIBIT NO. 10.3
GUARANTY
This GUARANTY (this "Guaranty") is executed as of March 10, 2003
by PRIME GROUP REALTY, L.P. ("Guarantor"), for the benefit of XXXXXX BROTHERS
BANK FSB, a federal stock savings bank, as payee, having an address at
Brandywine Building, 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000
("Lender").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Promissory Note, dated of even
date herewith, executed by 000 X. XXXXXX XXXXXX, L.L.C., a Delaware limited
liability company ("Borrower") and payable to the order of Lender in the
original principal amount of ONE HUNDRED NINETY FIVE MILLION AND NO/100 DOLLARS
($195,000,000.00) (together with all renewals, modifications, increases and
extensions thereof, the "Note"), Borrower has become indebted, and may from time
to time be further indebted, to Lender with respect to a loan (the "Loan") which
is made pursuant to that certain Loan Agreement, dated of even date herewith,
between Borrower and Lender (the "Loan Agreement");
WHEREAS, Lender is not willing to make the Loan, or otherwise
extend credit, to Borrower unless Guarantor unconditionally guarantees payment
to Lender of the Guaranteed Obligations (as herein defined); and
WHEREAS, 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 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
1.1 Guaranty of Obligation. Guarantor hereby irrevocably and unconditionally
guarantees to Lender and its successors and assigns the payment of the
Guaranteed Obligations as and when the same shall be due and payable, whether by
lapse of time, by acceleration of maturity or otherwise. Guarantor hereby
irrevocably and unconditionally covenants and agrees that it is liable for the
Guaranteed Obligations as a primary obligor. 1.2 Definition of Guaranteed
Obligations. As used herein, the term "Guaranteed Obligations" means the
obligations or liabilities of Borrower to Lender for any actual, out-of-pocket
loss, damage, cost, expense, liability, claim or other obligation incurred by
Lender (including reasonable attorneys' fees and costs reasonably incurred)
arising out of or in connection with the following:
(a) fraud or intentional material misrepresentation by Borrower or Guarantor
in connection with the Loan;
(b) intentional waste or willful misconduct by Borrower;
(c) the breach of any material representation, warranty, covenant or
indemnification provision in the Environmental Indemnity concerning
environmental laws, hazardous substances and asbestos and any
indemnification of Lender with respect thereto in either document
subject, however, to any limitations set forth in the Environmental
Indemnity;
(d) the removal or disposal by Borrower of any portion of the Property in
violation of the Loan Documents after the occurrence and during the
continuance of an Event of Default;
(e) the misapplication in violation of the Loan Documents or conversion by
Borrower of (i) any insurance proceeds paid by reason of any loss,
damage or destruction to the Property, (ii) any awards or other amounts
received in connection with the condemnation of all or a portion of the
Property and (iii) any Rents following the occurrence and during the
continuance of an Event of Default;
(f) any security deposits, advance deposits or other deposits collected with
respect to the Property which are not delivered to Lender upon a
foreclosure of the Property or action in lieu thereof, except to the
extent any such security deposits were applied in accordance with the
terms and conditions of any of the Leases prior to the occurrence of the
Event of Default that gave rise to such foreclosure or action in lieu
thereof;
(g) the failure by Borrower to make the First Required Additional Deposit
and/or Second Required Additional Deposit as provided in Section 7.3 of
the Loan Agreement; and
(h) the failure by Borrower to obtain Lender's prior written consent to any
voluntary lien (other than subordinate financing) encumbering the
Property.
Notwithstanding anything to the contrary in any of the Loan Documents, (i)
Lender shall not be deemed to have waived any right which Lender may have under
Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy
Code to file a claim for the full amount of the Debt or to require that all
collateral shall continue to secure all of the Debt owing to Lender in
accordance with the Loan Documents and (ii) Guarantor shall be liable for the
full amount of the Debt secured by the Mortgage in the event that (A) Borrower
violates any of the covenants set forth in Section 4.1.30 of the Loan Agreement
and as a result thereof, the assets of Borrower are ordered pursuant to a final,
non-appealable order to be substantively consolidated with those of any other
Person by a court having jurisdiction over a case filed under the Bankruptcy
Code, Title 11 of the United States Code; (B) Borrower fails to obtain Lender's
prior written consent to any subordinate financing encumbering the Property; (C)
Borrower fails to obtain Lender's prior written consent to any assignment,
transfer, or conveyance of the Property or any interest therein as required by
the Loan Agreement or the Mortgage; or (D) Borrower files a voluntary petition
under the Bankruptcy code or any other Federal or state bankruptcy or insolvency
law.
1.3 Nature of Guaranty. This Guaranty is an irrevocable, absolute,
continuing guaranty of payment and not a guaranty of collection. This Guaranty
may not be revoked by Guarantor and shall continue to be effective with respect
to any Guaranteed Obligations arising or created after any attempted revocation
by Guarantor. 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.
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 party
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.
1.5 Payment By Guarantor. If all or any part of the Guaranteed Obligations
shall not be punctually paid when due, whether at demand, maturity, 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.
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 the obligations of Guarantor hereunder, 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.
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,
the Mortgage, the Loan Agreement 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 an 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
and the obligations hereby guaranteed.
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 reasonable costs and expenses (including
court costs and 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.
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.
1.10 Waiver of Subrogation, Reimbursement and Contribution. Notwithstanding
anything to the contrary contained in this Guaranty, Guarantor hereby agrees not
to assert any claim against or seek contribution, indemnification or any other
form of reimbursement from Borrower or any other party liable for payment of any
or all of the Guaranteed Obligations for any payment made by Guarantor under or
in connection with this Guaranty or otherwise until Lender has received payment
in full for the Guaranteed Obligations; provided that Guarantor may assert such
compulsory claims if failure to do so would bar Guarantor from asserting such
rights after Lender has received payment in full for the Guaranteed Obligations.
1.11 Borrower. The term "Borrower" as used herein shall include any new or
successor corporation, association, partnership (general or limited), limited
liability company joint venture, 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. ARTICLE II
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:
2.1 Modifications. Any renewal, extension, increase, modification,
alteration or rearrangement (except to the extent of such modification,
alteration or arrangement) of all or any part of the Guaranteed Obligations, the
Note, the Mortgage, the Loan Agreement, the other Loan Documents or any 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.
2.2 Adjustment. Any adjustment, indulgence, forbearance or compromise that
might be granted or given by Lender to Borrower or any Guarantor.
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 party 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.
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 exceeds 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, the Mortgage,
the Loan Agreement 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) the 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, the Mortgage, the
Loan Agreement 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.
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 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 party, 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.
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.
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.
2.8 Care and Diligence. The failure of Lender or any other party to
exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of any
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 or (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, but in all
cases excluding the gross negligence or wilful misconduct of Lender.
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.
2.10 Merger. The reorganization, merger or consolidation of Borrower into
or with any other Person.
2.11 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.
2.12 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
contemplated or uncontemplated, 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 III
REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into the Loan Documents and extend credit to
Borrower, Guarantor represents and warrants as of the date hereof to Lender as
follows:
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.
3.2 Familiarity and Reliance. Guarantor is familiar with, and has
independently reviewed books and records regarding, the financial condition of
the 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;
however, Guarantor is not relying on such financial condition or the collateral
as an inducement to enter into this Guaranty.
3.3 No Representation By Lender. Neither Lender nor any other party has
made any representation, warranty or statement to Guarantor in order to induce
the Guarantor to execute this Guaranty.
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 and has and will have assets which, fairly
valued, exceed its obligations, liabilities (including contingent liabilities)
and debts, and has and will have property and assets sufficient to satisfy and
repay its obligations and liabilities.
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 material indenture, mortgage, 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.
3.6 Survival. All representations and warranties made by Guarantor herein
shall survive the execution hereof.
ARTICLE IV
SUBORDINATION OF CERTAIN INDEBTEDNESS
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 be 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. After the occurrence and during the continuance
of an Event of Default and upon written notice from Lender to Guarantor of the
occurrence of such Event of Default, Guarantor shall not receive or collect,
directly or indirectly, from Borrower or any other party any amount upon the
Guarantor Claims.
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 against
the Guaranteed Obligations, any dividend or payment which is otherwise payable
to Guarantor and which, as between Borrower and Guarantor, shall constitute a
credit against the Guarantor Claims, then, (i) Lender shall apply such dividend
or payment to the Guaranteed Obligations and (ii) 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 proportion of the Guaranteed
Obligations which would have been unpaid if Lender had not received dividends or
payments upon the Guarantor Claims.
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.
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. After the occurrence and
during the continuance of an Event of Default and 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, mortgage, deeds of trust, security interests,
collateral rights, judgments or other encumbrances on assets of Borrower held by
Guarantor.
ARTICLE V
MISCELLANEOUS
5.1 Waiver. No failure to exercise, and no delay in exercising, on the part
of Lender, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right. The rights of Lender hereunder shall
be in addition to all other rights provided by law. No modification or waiver of
any provision of this Guaranty, nor consent to departure therefrom, shall be
effective unless in writing and no such consent or waiver shall extend beyond
the particular case and purpose involved. No notice or demand given in any case
shall constitute a waiver of the right to take other action in the same, similar
or other instances without such notice or demand. 5.2 Notices. All notices,
consents, approvals and requests required or permitted hereunder or under any
other Loan Document shall be given in writing and shall be effective for all
purposes if hand delivered or sent by (a) certified or registered United States
mail, postage prepaid, return receipt requested, (b) expedited prepaid delivery
service, either commercial or United States Postal Service, with proof of
attempted delivery, and (c) by telecopier (with answer back acknowledged and
also sent by a method described in clause (a) or (b) above ), addressed as
follows (or at such other address and Person as shall be designated from time to
time by any party hereto, as the case may be, in a written notice to the other
parties hereto in the manner provided for in this Section):
If to Lender: Xxxxxx Brothers Bank FSB
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
with copies to: Xxxxxx Brothers Bank FSB
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Facsimile No.: (000) 000-0000
and
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
Facsimile No. (000) 000-0000
If to Guarantor: c/o Prime Group Realty Trust
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile No. (000) 000-0000
With a copy to: c/o Prime Group Realty Trust
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile No. (000) 000-0000
5.3 Governing Law; Submission to 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. Any legal suit, action
or proceeding against Lender or Guarantor arising out of or relating to this
Guaranty may at Lender's option be instituted in any Federal or State court in
the City of New York, County of New York, pursuant to Section 5-1402 of the New
York General Obligations Law and Guarantor waives any objections which it may
now or hereafter have based on venue and/or forum non conveniens of any such
suit, action or proceeding, and Guarantor hereby irrevocably submits to the
jurisdiction of any such court in any suit, action or proceeding.
5.4 Invalid Provisions. If any provision of this Guaranty is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term of this Guaranty, such provision shall be fully severable and this
Guaranty shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Guaranty, and the
remaining provisions of this Guaranty shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Guaranty, unless such continued effectiveness of this
Guaranty, as modified, would be contrary to the basic understandings and
intentions of the parties as expressed herein.
5.5 Amendments. This Guaranty may be amended only by an instrument in
writing executed by the party or an authorized representative of the party
against whom such amendment is sought to be enforced.
5.6 Parties Bound; Assignment; Joint and Several. 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.
5.7 Headings. Section headings are for convenience of reference only and
shall in no way affect the interpretation of this Guaranty.
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.
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 of, or on behalf of, each party, or that the signature of all
persons required to bind any 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, each of
the parties hereto. Any signature page to any counterpart may be detached from
such counterpart without impairing the legal effect of the signatures thereon
and thereafter attached to another counterpart identical thereto except having
attached to it additional signature pages.
5.10 Rights and Remedies. If Guarantor becomes liable for any indebtedness
owing by Borrower to Lender, by endorsement or otherwise, other than under this
Guaranty, such liability shall not be in any manner impaired or affected hereby
and the rights of Lender hereunder shall be cumulative of any and all other
rights that Lender may ever have against Guarantor. The exercise by Lender of
any right or remedy hereunder or under any other instrument, or at law or in
equity, shall not preclude the concurrent or subsequent exercise of any other
right or remedy.
5.11 Other Defined Terms. Any capitalized term utilized herein shall have
the meaning as specified in the Loan Agreement, unless such term is otherwise
specifically defined herein.
5.12 Entirety. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF
GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR'S GUARANTY OF THE GUARANTEED
OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR AND LENDER AS A
FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF
DEALING BETWEEN GUARANTOR AND LENDER, NO COURSE OF PERFORMANCE, NO TRADE
PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE
USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY
AGREEMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND LENDER.
5.13 Waiver of Right To Trial By Jury. GUARANTOR AND LENDER 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, THE NOTE, THE MORTGAGE, THE LOAN
AGREEMENT, OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER
ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
GIVEN KNOWINGLY AND VOLUNTARILY BY GUARANTOR AND LENDER, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER AND GUARANTOR ARE HEREBY AUTHORIZED
TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF
THIS WAIVER BY THE OTHER PARTY.
5.14 Cooperation. Guarantor acknowledges that Lender and its successors and
assigns may in accordance with the terms of the Loan Agreement (i) sell this
Guaranty, the Note and other Loan Documents to one or more investors as a whole
loan, (ii) participate the Loan secured by this Guaranty to one or more
investors, (iii) deposit this Guaranty, the Note and other Loan Documents with a
trust, which trust may sell certificates to investors evidencing an ownership
interest in the trust assets, or (iv) otherwise sell the Loan or interest
therein to investors (the transactions referred to in clauses (i) through (iv)
are hereinafter each referred to as "Secondary Market Transaction"). Guarantor
shall reasonably cooperate with Lender in effecting any such Secondary Market
Transaction and shall reasonably cooperate to implement all requirements imposed
by any Rating Agency involved in any Secondary Market Transaction. Guarantor
shall provide such reasonable information and documents relating to Guarantor,
Borrower, the Property and any tenants of the Improvements as Lender may
reasonably request in connection with such Secondary Market Transaction. In
addition, Guarantor shall make available to Lender all information concerning
its business and operations that Lender may reasonably request. Lender shall be
permitted to share all such information with the investment banking firms,
Rating Agencies, accounting firms, law firms and other third-party advisory
firms involved with the Loan and the Loan Documents or the applicable Secondary
Market Transaction. It is understood that the information provided by Guarantor
to Lender may ultimately be incorporated into the offering documents for the
Secondary Market Transaction and thus various investors may also see some or all
of the information. Lender and all of the aforesaid third-party advisors and
professional firms shall be entitled to rely on the information supplied by, or
on behalf of, Guarantor in the form as provided by Guarantor. Lender may
publicize the existence of the Loan in connection with its marketing for a
Secondary Market Transaction or otherwise as part of its business development.
Lender shall pay the costs incurred in connection with the Secondary Market
Transaction in accordance with the provisions of Section 9.1 of the Loan
Agreement.
[NO FURTHER TEXT ON THIS PAGE]
EXECUTED as of the day and year first above written.
GUARANTOR:
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust, its managing
general partner
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxxx
Title: Office of the President
