GUARANTY AGREEMENT
Exhibit
10.19
THIS GUARANTY AGREEMENT (this “Guaranty”) is executed as of March 29, 2007, by CAPITALSOURCE
INC., a Delaware corporation, having an address at c/o CapitalSource Finance LLC, 0000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxxxx Xxxxx, XX 00000 (“Guarantor”), for the benefit of COLUMN FINANCIAL,
INC., a Delaware corporation, having an address at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(“Lender”).
W
I T N E S S E
T H :
WHEREAS, pursuant to that certain Amended and Restated Promissory Note, dated of even date
herewith, executed by each of the parties set forth on Schedule I hereto (collectively,
jointly and severally, “Borrower”), arid payable to the order of Lender in the original principal
amount of Two Hundred Eighty Seven Million One Hundred Eighty Two Thousand Four Hundred Twenty-Two
and 00/100 Dollars ($287, 182, 422.00) (as the same may be amended, restated, replaced, supplemented,
or otherwise modified from time to time, the “Note”), Borrower has become indebted, and may from
time to time be further indebted, to Lender with respect to a loan
(“Loan”), made pursuant to that
certain Amended and Restated Loan Agreement, of even date herewith, between Borrower and Lender (as
the same may be amended, restated, replaced, supplemented, or otherwise modified from time to time,
the “Loan Agreement”), which Loan is secured by, among other things, the liens and security
interests of certain mortgages, deeds of trust and/or deeds to secure debt, each dated December 1,
2006 (as the same have been or may be amended, restated, replaced, supplemented, or otherwise
modified from time to time, collectively, the “Mortgages”), and further evidenced, secured or
governed by other instruments and documents executed in connection with the Loan (together with the
Note, the Loan Agreement and Mortgages, the “Loan Documents”); and
WHEREAS, the Loan is an amendment and restatement of the Original Loan evidenced and secured
by the Original Loan Agreement and the other Original Loan Documents; and
WHEREAS, this Guaranty is given to induce Lender to release CSE Mortgage LLC, a Delaware
limited liability company, from its obligations under that certain Guaranty Agreement dated
December 1,2006, given in connection with the Original Loan;
WHEREAS, Lender is not willing to make the Loan, or otherwise extend credit, to Borrower
unless Guarantor enters into this Guaranty; 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 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 and performance 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. (a) As used herein, the term “Guaranteed
Obligations” means (i) the obligations and liabilities of Borrower to Lender for any 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 any of the
following, which Guaranteed Obligations shall also include events arising from and after December
1, 2006:
(A) fraud or intentional misrepresentation by Borrower, Guarantor or any Affiliate thereof in
connection with the Loan or the Original Loan;
(B) waste by Borrower, Guarantor or any Affiliate thereof to one or more of the Individual
Properties;
(C) the gross negligence or willful misconduct of Borrower, Guarantor or any Affiliate
thereof;
(D) the breach of any 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;
(E) the removal or disposal by Borrower, Guarantor or any Affiliate of
any portion of one or more of the Properties after the occurrence and during the continuance
of an Event of Default;
(F) the misappropriation or conversion by Borrower of (A) any
Insurance Proceeds paid by reason of any Casualty, (B) any Awards received in connection with
a Condemnation, (C) any Rents after the occurrence and during the continuance of an Event of
Default, or (D) any Rents paid more than one (1) month in advance;
(G) failure
to pay charges for labor or materials or other charges
incurred by the Borrower that create Liens on any portion of the Properties;
(H) any security deposits, advance deposits or any other deposits collected by Borrower,
Guarantor or any Affiliate thereof with respect to the Properties which are not delivered to
Lender upon a foreclosure of the Properties or action in lieu thereof, except to the extent any
such deposits were applied in accordance with the terms and conditions of any
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of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or
action in lieu thereof;
(I) any amounts received by Borrower or any Affiliate thereof that are not deposited into the
Lockbox Account to the extent required to be so deposited under the Cash Management Agreement or
the Loan Agreement;
(J) if (1) Borrower fails to permit on-site inspections of any of the Properties, subject to
terms of each respective Operating Lease, upon the request of Lender or (2) Borrower fails to
provide financial information concerning Borrower, Principal or Guarantor in its possession (or
financial information which could be obtained by Borrower through commercially reasonable efforts)
or (3) Borrower fails to provide financial information in its possession or control (or financial
information which could be obtained by Borrower through commercially reasonable efforts)
concerning any Operator Tenant or collections under the Operating Leases, in each case, to the
extent required by and in accordance with the terms and provisions of the Loan Agreement;
(K) any
breach of the representations and warranties set forth in Section 4.1.30(a) and
(b) of the Loan Agreement (except for any representation or warranty that Borrower will remain
solvent, maintain adequate capital or pay its debts or liabilities as the same may become due).
Notwithstanding anything to the contrary in this Guaranty, the Loan Agreement, the Note or any of
the Loan Documents, Guarantor shall be liable for the full amount of the Debt: (A) in the event
of: (I) any Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or
state bankruptcy or insolvency law; (II) the filing of an involuntary petition against any
Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law,
which is assisted, supported, aided or abetted by Borrower and/or Guarantor or with respect to
which Borrower and/or Guarantor fails to contest (where good grounds exist for such contest);
(III) any Borrower filing an answer consenting to or otherwise acquiescing in or joining in any
involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other
Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited
petitioning creditors for any involuntary petition from any Person; (IV) any Borrower consenting
to or acquiescing in or joining in an application for the appointment of a custodian, receiver,
trustee, or examiner for any Borrower or any material portion of any Property; or (V) any Borrower
making a general assignment for the benefit of creditors, or admitting, in writing or in any legal
proceeding, its insolvency or inability to pay its debts as they become due; (B) if any Borrower
fails to maintain its status as a Single Purpose Entity as required by, and in accordance with,
the terms and provisions of the Loan Agreement or the other Loan Documents (except for any
covenant to remain solvent, maintain adequate capital or pay its debts or liabilities as the same
may become due or the additional covenant to comply with any assumptions in the Insolvency Opinion
or any Additional Insolvency Opinion); (C) if Borrower fails to obtain Lender’s prior consent to
any Indebtedness or voluntary Lien encumbering one or more of the Individual Properties or any
material portion of one or more of the Individual Properties to the extent required by the Loan
Agreement; or (D) if Borrower fails to obtain Lender’s prior consent to any Transfer to the extent
required by the Loan Agreement.
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(b) Notwithstanding anything to the contrary in any of the Loan Documents, 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 against Borrower or Guarantor for the
full amount of the Debt secured by the Mortgages or to require that all collateral shall continue
to secure all of the Debt owing to Lender in accordance with the Loan Documents. Notwithstanding
anything to the contrary contained herein, this Guaranty is not secured by any collateral
furnished by Guarantor.
1.3
Nature of Guaranty. 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 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 (except by Borrower’s or Guarantor’s performance of such obligations and then only
to the extent of such performance), 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 upon 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 (a) institute suit or exhaust its remedies against
Borrower or others liable on the Loan or the Guaranteed Obligations or any other person, (b)
enforce Lender’s rights against any collateral which shall ever have been given to secure the
Loan, (c) enforce Lender’s rights against any other guarantors of the Guaranteed Obligations, (d)
join Borrower or any others liable on the Guaranteed Obligations in any action seeking to enforce
this Guaranty, (e) exhaust any remedies available to Lender against any collateral which shall
ever have been given to secure the Loan, or (f) resort to any other means of obtaining
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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 acknowledges and consents to the provisions of the Loan
Documents, and hereby waives notice of (a) any loans or advances made by Lender to Borrower, (b)
acceptance of this Guaranty, (c) any amendment or extension of the Note, the Loan Agreement or of
any other Loan Documents, (d) 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 Properties, (e) the
occurrence of any breach by Borrower or an Event of Default, (f) Lender’s transfer or disposition
of the Guaranteed Obligations, or any part thereof, (g) sale or foreclosure (or posting or
advertising for sale or foreclosure) of any collateral for the Guaranteed Obligations, (h)
protest, proof of non-payment or default by Borrower and (i) any other action at any time taken or
omitted by Lender, and, generally, all demands and notices of every kind in connection wiui this
Guaranty, the Loan Documents, any documents or agreements evidencing, securing or relating to any
of the Guaranteed Obligations.
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.
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 unconditionally and irrevocably waives, releases and
abrogates, prior to the payment in full of the Loan and for a period of 91 days thereafter any and all
rights it may now or hereafter have under any agreement, at law or in equity
(including, without limitation, any law subrogating the Guarantor to the
rights of Lender), to assert any claim against or seek contribution,
indemnification or any other form of reimbursement from Borrower for any
payment made by Guarantor under or in connection with this Guaranty or otherwise.
1.11 Borrower. The term “Borrower” as used herein shall include any new or
successor corporation, association, partnership (general or limited), 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.
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ARTICLE
II
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR’S OBLIGATIONS
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 of all or any part of the Guaranteed Obligations, the Note, 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 (except to the extent of such modification,
alteration or rearrangement).
2.2
Adjustment. Any adjustment, indulgence, forbearance or compromise that might be
granted or given by Lender to Borrower or any Guarantor (except to the extent of such adjustment,
indulgence, forbearance or compromise to 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 (a) the Guaranteed Obligations, or any part thereof, exceeds the
amount permitted by law, (b) the act of creating the Guaranteed Obligations or any part thereof is
ultra xxxxx, (c) the officers or representatives executing the Note, the Loan Agreement or
the other Loan Documents or otherwise creating the Guaranteed Obligations acted in excess of their
authority, (d) the Guaranteed Obligations violate applicable usury laws, (e) the Borrower has valid
defenses (except Borrower’s or Guarantor’s performance of such obligations and then only to the
extent of such performance), claims or offsets (whether at law, in equity or by agreement) which
render the Guaranteed Obligations wholly or partially uncollectible from Borrower, (f) 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 (g) the Note, 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
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whether Borrower or any other Person be found not liable on the Guaranteed Obligations or any part
thereof for such 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 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
party, and Guarantor has not been induced to enter into this Guaranty on the basis of a
contemplation, belief, understanding or agreement that other Persons will be liable to pay or
perform the Guaranteed Obligations, or that Lender will look to other Persons 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 such collateral, property or security, including but not
limited to any neglect, delay, omission, failure or refusal of Lender (a) to take or prosecute any
action for the collection of any of the Guaranteed Obligations or (b) to foreclose, or initiate
any action to foreclose, or, once commenced, prosecute to completion any action to foreclose upon
any security therefor, or (c) to take or prosecute any action in connection with any instrument or
agreement evidencing or securing all or any part of the Guaranteed Obligations.
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 Offset. 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 (except
Borrower’s or Guarantor’s performance of such obligations and then only to the extent of such
performance), whether such right of offset, claim or defense arises in connection with the
Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise.
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2.11 Merger. The reorganization, merger or consolidation of Borrower into or with any
other corporation or entity.
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.
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 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 to Lender as follows as of the date hereof:
3.1 Benefit. Guarantor is the owner of an 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 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.
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3.5 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, including without limitation, the Guaranteed
Obligations, and has and will have property and assets sufficient to satisfy and repay its
obligations and liabilities, including without limitation, the Guaranteed Obligations.
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 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. Upon the occurrence and
during the continuance of an 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 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 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
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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. Without the prior written consent of Lender, Guarantor
shall not, prior to the payment in full of the Loan (a) exercise or enforce any creditor’s right it
may have against Borrower, or (b) 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 V
MISCELLANEOUS
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. Any notice, demand, statement, request or consent made hereunder shall
be in writing and shall be deemed to be received by the addressee on the third day following the
day such notice is deposited with the United States Postal Service first class certified mail,
return receipt requested, addressed to the address, as set forth below, of the party to whom such
notice is to be given, or to such other address as either party shall in like manner designate in
writing. The addresses of the parties hereto are as follows:
| Guarantor. | |||
| CapitalSource, Inc. | |||
| c/o CapitalSource Finance LLC | |||
| 0000 Xxxxxxx Xxxxxx, 00xx Xxxxx | |||
| Xxxxx Xxxxx, XX 00000 | |||
| Attn: Treasurer and General Counsel — Corporate | |||
| Fax: 000.000.0000 |
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| with a copy to: | Xxxxx & Xxxxxxx LLP | ||
| Columbia Square | |||
| 000 00xx Xxxxxx, XX | |||
| Xxxxxxxxxx, XX 00000 | |||
| Attention: Xxxxx X. Xxxxxx | |||
| Telecopier: (000) 000-0000 | |||
| Lender: | |||
| Column Financial, Inc. | |||
| 00 Xxxxxxx Xxxxxx | |||
| Xxx Xxxx, Xxx Xxxx 00000 | |||
| Attention: Xxxxxxx Xxxxxx | |||
| Facsimile No.: (000) 000-0000 | |||
| with a copy to: | Column Financial, Inc. | ||
| Xxx Xxxxxxx Xxxxxx | |||
| Xxx Xxxx, Xxx Xxxx 00000 | |||
| Legal and Compliance Department | |||
| Attention: Xxxxx XxXxxxxxxx | |||
| Facsimile No.: (000) 000-0000 | |||
| with a copy to: | Xxxxxxxx Xxxxxxx LLP | ||
| 000 Xxxxxxxxx Xxxxxx | |||
| Xxx Xxxx, Xxx Xxxx 00000 | |||
| Attention: Xxxxx Xxxxx, Esq. | |||
| Facsimile No.: (000) 000-0000 |
5.3 Governing Law. This Guaranty shall be construed and enforced in accordance with
the laws of the State of New York, without regard to the conflicts of laws principles thereof
(other than Section 5-1401 of the New York General Obligations Law).
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
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consent of Lender, assign any of its rights, powers, duties or obligations hereunder. If more than
one Person has executed this Guaranty as “Guarantor”, the representations, covenants, warranties,
obligations and liabilities of all such Persons hereunder shall be joint and several.
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 AND 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.
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5.13 Waiver of Right To Trial By Jury. GUARANTOR HEREBY AGREES NOT TO ELECT A TRIAL BY
JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES 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
LOAN AGREEMENT, THE MORTGAGE, 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 IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH
ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED
TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY
GUARANTOR.
5.14 Reinstatement in Certain Circumstances. If at any time any payment of the
principal of or interest under the Note or any other amount payable by the Borrower under the Loan
Documents is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, the Guarantor’s obligations hereunder with respect to
such payment shall be reinstated as though such payment has been due but not made at such time.
5.15
State Specific Provisions. (a) With respect to the foregoing provisions
contained in this Agreement, the following shall apply with respect to the State of Arizona:
(i) Guarantor waives, to the fullest extent allowed by applicable law, all of
Guarantor’s rights under §§
12-1641, 12-1642, 12-1643, 12-1644, 33-814, 44-141, 44-142 and 47-3605 of
Arizona Revised Statutes, and Rule 17(f) of the Arizona Rules of Civil Procedure, as now in
effect or as modified or amended in the future. Guarantor’s obligations under this Guaranty may
be enforced by Lender in an action regardless of whether a trustee’s sale is held.
(b) With respect to the foregoing provisions contained in this Agreement, the following shall
apply with respect to the State of Texas:
(i) Guarantor waives the benefit of any right of discharge under Chapter 34 of the
Texas Business and Commerce Code and all other rights of sureties and guarantors under such
Chapter; and
(ii) Guarantor waives all rights or defenses arising under Rule 31 of the Texas Rules
of Civil Procedure, Section 17.001 of the Texas Civil Practice and Remedies Code, Chapter 34 of
the Texas Business and Commerce Code, or any other statute or law, common law, in equity, under
contract or otherwise, or under any amendments, recodifications, supplements or any successor
statute or law of or to any such statute or law; and all rights under
Sections 51.003, 51.004 and
51.005 of the Texas Property Code and under any amendments, recodifications, supplements or any
successor statute or law of or to any such statute or law.
(e) With respect to the foregoing provisions contained in this Agreement, the following shall
apply with respect to the State of Washington:
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NOTICE: ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
(d) With respect to the foregoing provisions contained in this Agreement, the following shall apply
with respect to the State of Indiana:
(i) The phrases “attorneys fees,” “legal fees” and counsel fees” when used herein shall
include any and all attorneys’, paralegals’ and law clerks’ fees and disbursements, including,
but not limited to, fees and disbursements at the pre-trial, trial and appellate levels
incurred or paid by Lender in enforcing its rights hereunder.
(ii) The Guaranteed Obligations payable hereunder by Guarantor to Lender shall be made
without relief from, and Guarantor hereby waives all right of, applicable valuation and
appraisement laws.
(iii) Guarantor expressly waives and relinquishes any and all rights and remedies which
Guarantor may have or be able to assert by reason of applicable laws including, without limitation,
the provisions of Ind. Code § 26-l-3.1-605(i) and Ind. Code
§ 34-22-2-1-1 et seq., pertaining to
the rights and remedies of sureties or as a result of any and all events which would otherwise
constitute a discharge of this Guaranty or which would be considered as defenses based upon
suretyship or impairment of collateral.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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EXECUTED
as of the day and year first above written.
| GUARANTOR: | ||||||
| CAPITALSOURCE INC. a Delaware corporation |
||||||
| By: | /s/ Xxxxxx X. Xxxx | |||||
| Name: Title: |
Chief Financial Officer & Senior Vice President Finance |
|||||
