EXHIBIT 10.9
GUARANTY OF CITADEL HOLDING CORPORATION
GUARANTY AGREEMENT (this "Guaranty"), dated as of July 28, 2000, between
CITADEL HOLDING CORPORATION, a Nevada corporation (the "Guarantor"), and XXXXXX
XXXX CAPITAL, L.L.C., a New York limited liability company (together with its
successors, the "Beneficiary").
RECITALS
A. The Guarantor is an affiliate of Citadel Realty, Inc., a Nevada
corporation (together with its permitted successors, the "Company").
B. The Beneficiary and the Company have entered into an agreement, dated
as of the date hereof (as the same may be amended, restated, modified or
supplemented from time to time, the "Fee Option Agreement"), pursuant to which
the Company has agreed to indemnify the Beneficiary pursuant to paragraph (c) of
Section 10 thereof.
C. The Beneficiary is unwilling to enter into the Fee Option Agreement
unless this Guaranty shall have been executed and delivered by the Guarantor and
shall be in full force and effect.
NOW THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby agrees as follows:
1. Guaranty of Obligations. Subject to the terms and conditions in this
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Guaranty, the Guarantor hereby unconditionally guarantees to the Beneficiary the
due and punctual payment when due of all amounts now due or hereafter becoming
due in respect of the Company's obligations arising under paragraph (c) of
Section 10 of the Fee Option Agreement (such obligations being herein called the
"Obligations"), and agrees to pay any and all reasonable expenses incurred by
the Beneficiary in successfully enforcing any rights under this Guaranty. This
Guaranty is a primary and original obligation of the Guarantor and is an
absolute, unconditional, continuing and irrevocable guaranty of payment and not
of collectibility or performance and is in no way conditioned or contingent upon
any attempt to collect from the Company or to realize upon any property
constituting security for the Obligations, all to the same extent, except as
otherwise specifically provided herein, as if the Guarantor were the Company
under the Fee Option Agreement; provided, however, that the foregoing limitation
imposing on the Guarantor obligations hereunder as if it were the Company under
the Fee Option Agreement (except as set forth herein) shall not limit
obligations of the Guarantor hereunder to the extent the limitations (including
termination, disavowal, rejection or reduction) of any such obligation of the
Company results from (a) any insolvency or bankruptcy case or proceeding
(including any case under the U.S. Bankruptcy Code of 1978, as amended), or any
receivership, liquidation, reorganization or other similar case or proceeding
relative to the Company or all or substantially all of its assets, or (b) any
liquidation, dissolution, reorganization or winding up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c)
any assignment of all or substantially all of the assets of the Company for the
benefit of creditors or any other marshalling of assets and liabilities of the
Company (the events in (a), (b) and (c) collectively referred to as an
"Insolvency or Liquidation Proceeding"), and in such event the Guarantor shall
be liable in respect of obligations of the Company pursuant to the Fee Option
Agreement as if no such Insolvency or Liquidation Proceeding had been initiated.
If the Company shall fail to pay any of the Obligations when and as the same
shall become due and payable, the Guarantor shall forthwith pay such
Obligations, in immediately available funds, directly to the Beneficiary at its
address specified herein or at such other place as the Beneficiary shall direct.
The Guarantor hereby waives diligence, presentment or protest. Each default in
payment of any of the Obligations shall give rise to a separate cause of action
hereunder and separate suits may be brought hereunder as each cause of action
arises.
Character of Obligations Hereunder: Subrogation. (a) The right of
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the Beneficiary to enforce the obligations of the Guarantor hereunder by any
proceedings, whether by action at law, suit in equity or otherwise, shall not be
impaired by any right, claim or defense (against the Company or any other
person) of any character whatsoever, including without limitation any right,
claim or defense of rescission, recoupment, reduction, limitation, termination,
setoff, counterclaim, waiver, frustration, surrender, alteration or compromise
except, and then only to the extent, any such right, claim or defense would have
been available to the Company pursuant to the Fee Option Agreement. Without
limiting the generality of the foregoing, such obligations of the Guarantor
shall not be discharged, released or impaired or otherwise affected by: (i) any
renewal, extension, amendment or modification of or addition or supplement to or
deletion from this Guaranty or the Fee Option Agreement except to the extent of
the Company's rights, claims or defenses thereunder as aforesaid; (ii) any
inability or failure on the part of the Company to perform or comply with the
Fee Option Agreement; (iii) any waiver, consent, extension, indulgence or other
action or inaction (including, without limitation, any lack of diligence) under
or in respect of this Guaranty, the Fee Option Agreement, or any obligation or
liability of the Company, or any other person, or any exercise or nonexercise of
any right, power or remedy under or in respect of any such agreement or any such
obligation or liability; (iv) any Insolvency or Liquidation Proceeding; and (v)
any limitation or any party's obligation or liability under any such agreement
or any such obligation or liability or any termination, cancellation,
frustration, invalidity or enforceability, in whole or in part, of any such
agreement or any such obligation or liability or any term of any thereof except
to the extent of the Company's rights, claims or defenses thereunder as
aforesaid.
(b) This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Obligations is rescinded
or must otherwise be returned by the Beneficiary upon the insolvency, bankruptcy
or reorganization of the Company or otherwise, all as though such payment had
not been made.
(c) The Guarantor will not exercise any rights which it may acquire by way
of subrogation under this Guaranty, by any payment made hereunder or otherwise,
until all of the Obligations shall have been paid in full. If any amount shall
be paid to the Guarantor on account of such subrogation rights at any time when
all the Obligations then outstanding shall not have been indefeasibly paid in
full, such amount shall be held in trust for the benefit of the Beneficiary and
shall forthwith be paid to the Beneficiary and applied upon the Obligations,
whether matured
or unmatured. If (i) the Guarantor shall make payment to the Beneficiary of all
or any part of the Obligations and (ii) all the Obligations shall be paid in
full and the period under the Fee Option Agreement for the Beneficiary to assert
claims against the Company shall have expired, the Beneficiary will, at the
Guarantor's request, execute and deliver to the Guarantor appropriate documents,
without recourse and without representation or warranty, necessary to evidence
the transfer by subrogation to the Guarantor of an interest in the Obligations
resulting from such payment by the Guarantor.
Representations and Warranties of the Guarantor. The Guarantor
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represents and warrants to the Beneficiary that:
(i) The Guarantor is a corporation duly organized and validly existing
under the laws of Delaware and has full power, authority and legal right to
carry on its business as currently conducted, to own its properties and to enter
into and perform its obligations under this Guaranty;
(ii) The execution, delivery and performance by the Guarantor of this
Guaranty have been duly authorized by all necessary corporate action and do not
and will not contravene any presently existing law or any governmental rule,
regulation or order applicable to the Guarantor or its properties;
(iii) The execution, delivery and performance by the Guarantor of this
Guaranty do not require the consent or approval or authorization or order of,
the giving of notice to, or the registration with, or the taking of any other
action in respect of, any governmental authority or agency, foreign or domestic,
other than such as have been duly obtained, given or taken; and
(iv) This Guaranty has been duly executed and delivered by the Guarantor
and constitutes the legal, valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms, except as the
enforceability of this Guaranty may be limited by the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and by general principles of equity.
2. Miscellaneous.
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(i) No failure on the part of the Beneficiary to exercise, no delay in
exercising, and no course of dealing with respect to, any right or remedy
hereunder will operate as a waiver thereof; nor will any single or partial
exercise of any right or remedy hereunder preclude any exercise of any other
right or remedy. This Guaranty may not be amended or modified except by written
agreement of the Guarantor and the Beneficiary.
(ii) All notices in connection with this Guaranty shall be in writing,
shall be deemed given and shall become effective when delivered by hand or
courier service or received by telex, telecopier, telegram, cable or registered
or certified first-class mail, postage prepaid, addressed as follows: if to the
Guarantor, at 000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000; if to
the Beneficiary, addressed to: 000 Xxxxx Xxxxxxxxx Xxxx., Xxx Xxxxxxx,
Xxxxxxxxxx 00000 or at such other addresses which either of the foregoing shall
from time to time designate in writing.
(iii) The terms of this Guaranty shall be binding upon the Guarantor and
its successors and assigns and shall inure to the benefit of, and be enforceable
by, the Beneficiary and its successors and assigns.
(iv) This Guaranty shall be construed in accordance with and governed by
the internal laws of the State of New York.
(v) If any term of this Guaranty and any other application thereof shall
be invalid or unenforceable, the remainder of this Guaranty and any other
application of such terms shall not be affected thereby.
(vi) Each of the parties hereto (i) hereby irrevocably submits to the
nonexclusive jurisdiction of the Supreme Court of the State of New York, New
York County (without prejudice to the right of any party to remove to the United
States District Court for the Southern District of New York) and to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York, for the purposes of any suit, action or other proceeding
arising out of this Guaranty or the subject matter hereof or any of the
transactions contemplated hereby or thereby brought by either of the parties
hereto or their successors or assigns, (ii) hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined in
such New York State court or, to the fullest extent permitted by applicable law,
in such Federal court, (iii) hereby waives any right it may have to trial by
jury in respect of any litigation based on, arising out of, under or in
connection with this Guaranty, and (iv) to the extent permitted by applicable
law, hereby irrevocably waives, and agrees not to assert, by way of motion, as a
defense or otherwise, in any such suit, action or proceeding any claim that it
is not subject to the jurisdiction of the above-named courts, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that this Guaranty or the subject
matter hereof may not be enforced in or by such court. A final judgment
obtained in respect of any action, suit or proceeding referred to in this
Section 4 shall be conclusive and may be enforced in other jurisdictions by suit
or judgment or in any manner as provided by applicable law. Each of the parties
hereto hereby consents to service of process by registered mail, Federal
Express, DHL or similar courier at the address to which notices to it are to be
given, it being agreed that service in such manner shall constitute valid
service upon such party or its respective successors or assigns in connection
with any such action or proceeding only; provided, however, that nothing in this
Section 4 shall affect the right of any of such parties or their respective
successors or assigns to serve legal process in any other manner permitted by
applicable law or affect the right of any of such parties or its respective
successors or assigns to bring any action or proceeding against any other one of
such parties or its respective property in the courts of other jurisdictions.
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be duly
executed as of the date first set forth herein.
GUARANTOR:
CITADEL HOLDING CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxxx
Title: Chief Financial Officer
BENEFICIARY:
XXXXXX XXXX CAPITAL, LLC
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Operating Manager
