Exhibit 10.2(d)
LIMITED GUARANTY AGREEMENT
This LIMITED GUARANTY AGREEMENT (this "Guaranty") is made as of May
30, 2000, by SONESTA INTERNATIONAL HOTELS CORPORATION, a New York corporation
("Guarantor"), in favor of SUNAMERICA LIFE INSURANCE COMPANY, an Arizona
corporation ("Lender").
1. Loan and Note. This Guaranty is executed in connection with a
$31,000,000.00 loan ("Loan") made by Lender to Sonesta Beach Resort Limited
Partnership, a Delaware limited partnership ("Borrower"). The Loan is (a)
evidenced by a Consolidated and Renewed Promissory Note of even date herewith in
the original principal amount of the Loan ("Note"), and (b) secured by, among
other things, a Consolidated, Amended and Restated Mortgage, Security Agreement,
Fixture Filing, Financing Statement and Assignment of Leases and Rents of even
date herewith granted by Borrower for the benefit of Lender ("Mortgage," and,
together with the Note and all other documents evidencing and/or securing the
Loan, "Loan Documents") covering certain real property commonly known as the
Sonesta Beach Resort, Key Biscayne, Florida, and more particularly described in
the Mortgage (the "Property"). All capitalized terms used herein without
definition shall have the meanings given to such terms in the Mortgage.
2. Purpose and Consideration. The execution and delivery of this
Guaranty by Guarantor is a condition to Lender's willingness to make the Loan to
Borrower, is made in order to induce Lender to make the Loan, and is made in
recognition that Lender will be relying upon this Guaranty in making the Loan
and performing any other obligations it may have under the Loan Documents.
Guarantor has a significant ownership interest in Borrower, and, accordingly,
acknowledges that Guarantor will receive material direct and indirect benefit
from Lender making the Loan to Borrower.
3. Guaranty. Guarantor hereby guarantees absolutely, primarily, and
irrevocably, payment and performance of (a) all obligations of Borrower under
the Loan Documents for which Borrower incurs personal liability to Lender under
the exceptions to the non-recourse provisions described in Section 18 of the
Note, and (b) the obligation of Borrower to pay all documentary stamp taxes and
intangible taxes under Section 4.4(c) of the Mortgage and under Section 4.4(c)
of that certain second Mortgage, Security Agreement, Fixture Filing, Financing
Statement and Assignment of Leases and Rents of even date herewith granted by
Borrower for the benefit of Lender covering the Property (collectively, the
"Obligations").
4. Guaranty is Independent and Absolute. The obligations of
Guarantor hereunder are independent of the obligations of Borrower and of any
other person who may become liable with respect to the Obligations. Guarantor is
jointly and severally liable with Borrower and with any other guarantor for the
full and timely payment and performance of all of the Obligations. Guarantor
expressly agrees that a separate action or actions may be brought and prosecuted
against Guarantor (or any other guarantor), whether or not any action is brought
against Borrower, any other guarantor or any other person for any Obligations
guaranteed hereby and whether or not Borrower, any other guarantor or any other
persons are joined in any action
against Guarantor. Guarantor further agrees that Lender shall have no obligation
to proceed against any security for the Obligations prior to enforcing this
Guaranty against Guarantor, and that Lender may pursue or omit to pursue any and
all rights and remedies Lender has against any person or with respect to any
security in any order or simultaneously or in any other manner. All rights of
Lender and all obligations of Guarantor hereunder shall be absolute and
unconditional irrespective of (a) any lack of validity or enforceability of the
Note or any other Loan Document, and (b) any other circumstances which might
otherwise constitute a defense available to, or a discharge of Borrower in
respect of, the Obligations.
5. Authorizations to Lender. Guarantor authorizes Lender, without
notice or demand and without affecting Guarantor's liability hereunder, from
time to time (a) to renew, extend, accelerate or otherwise change the time for
payment of, change, amend, alter, cancel, compromise or otherwise modify the
terms of the Note, including increasing the rate or rates of interest thereunder
agreed to by Borrower, and to grant any indulgences, forbearances, or extensions
of time; (b) to renew, extend, change, amend, alter, cancel, compromise or
otherwise modify any of the terms, covenants, conditions or provisions of any of
the Loan Documents or any of the Obligations; (c) to apply any security and
direct the order or manner of sale thereof as Lender, in Lender's discretion,
may determine; (d) to proceed against Borrower, Guarantor or any other guarantor
with respect to any or all of the Obligations without first foreclosing against
any security therefor; (e) to exchange, release, surrender, impair or otherwise
deal in any manner with, or waive, release or subordinate any security interest
in, any security for the Obligations; (f) to release or substitute Borrower, any
other guarantors, endorsers, or other parties who may be or become liable with
respect to the Obligations, without any release being deemed made of Guarantor
or any other such person; and (g) to accept a conveyance or transfer to Lender
of all or any part of any security in partial satisfaction of the Obligations,
or any of them, without releasing Borrower, Guarantor, or any other guarantor,
endorser or other party who may be or become liable with respect to the
Obligations, from any liability for the balance of the Obligations.
6. Application of Payments Received by Lender. Any sums of money
Lender receives from or for the account of Borrower may be applied by Lender to
reduce any of the Obligations or any other liability of Borrower to Lender, as
Lender in Lender's discretion deems appropriate.
7. Waivers by Guarantor. In addition to all waivers expressed in any
of the Loan Documents, all of which are incorporated herein by Guarantor,
Guarantor hereby waives (a) presentment, demand, protest and notice of protest,
notice of dishonor and of non-payment, notice of acceptance of this Guaranty,
and diligence in collection; (b) notice of the existence, creation, or incurring
of any new or additional Obligations under or pursuant to any of the Loan
Documents; (c) any right to require Lender to proceed against, give notice to,
or make demand upon Borrower; (d) any right to require Lender to proceed against
or exhaust any security or to proceed against or exhaust any security in any
particular order; (e) any right to require Lender to pursue any remedy of
Lender; (f) any right to direct the application of any security held by Lender;
(g) any right of subrogation or to enforce any remedy which Lender may have
against Borrower and any right to participate in any security now or hereafter
held by Lender and any
right to reimbursement from the Borrower for amounts paid to Lender by
Guarantor; (h) benefits, if any, of Guarantor under any anti-deficiency statutes
or single-action legislation; (i) any defense arising out of any disability or
other defense of Borrower, including bankruptcy, dissolution, liquidation,
cessation, impairment, modification, or limitation, from any cause, of any
liability of Borrower, or of any remedy for the enforcement of such liability;
(j) any statute of limitations affecting the liability of Guarantor hereunder;
(k) any right to plead or assert any election of remedies by Lender; and (l) any
other defenses available to a surety under applicable law.
8. Subordination by Guarantor. Guarantor hereby agrees that any
indebtedness of Borrower to Guarantor, whether now existing or hereafter
created, shall be and is hereby subordinated to the indebtedness of Borrower to
Lender under the Loan Documents. At any time during which a Default or Event of
Default exists, Guarantor shall not accept or seek to receive any amounts from
Borrower on account of any indebtedness of Borrower to Guarantor.
9. Bankruptcy Reimbursements. Guarantor hereby agrees that if any
amounts paid to Lender by Borrower or any other party liable for payment and
satisfaction of the Obligations (other than Guarantor) are recovered from Lender
in any bankruptcy proceeding, Guarantor shall reimburse Lender immediately on
demand for all amounts so recovered from Lender (together with interest thereon
at the default rate set forth in the Note from the date ten (10) days following
demand therefor until paid), and, for this purpose, this Guaranty shall survive
repayment of the Loan. Without limiting the foregoing, Guarantor shall pay all
costs and expenses incurred by Lender in connection with any bankruptcy
proceeding of Borrower, Guarantor or any other party liable for payment and
satisfaction of the Obligations, including attorneys' fees and expenses.
10. Jurisdiction and Venue. Guarantor hereby submits itself to the
jurisdiction and venue of any state court located in Miami-Dade County, Florida,
or federal court located in the State of Florida in connection with any action
or proceeding brought for enforcement of Guarantor's obligations hereunder, and
hereby waives any and all personal or other rights under the law of any other
country or state to object to jurisdiction within such locations, for purposes
of litigation to enforce such obligations. Guarantor agrees that service of
process upon Guarantor shall be complete upon delivery thereof in any manner
permitted by law.
11. Financial Statements. In addition to those obligations set forth
in any of the Loan Documents, for so long as any of the Obligations remain
unsatisfied, within one hundred twenty (120) days after the end of each calendar
year, Guarantor shall furnish to Lender such financial statements of Guarantor
for such calendar year as Lender may request, in such detail as Lender may
request, certified by Guarantor as being true and correct in all respects.
Guarantor shall also furnish to Lender copies of his federal and state income
tax returns for the preceding year within ten (10) days of the filing thereof
with the appropriate governmental agencies.
12. Assignability. This Guaranty shall be binding upon Guarantor and
Guarantor's heirs, representatives, successors, and assigns and shall inure to
the benefit of Lender and Lender's successors and assigns. This Guaranty shall
follow the Note and other
Loan Documents which are for the benefit of Lender, and, in the event the Note
and other Loan Documents are negotiated, sold, transferred, assigned, or
conveyed by Lender in whole or in part, this Guaranty shall be deemed to have
been sold, transferred, assigned, or conveyed by Lender to the holder or holders
of the Note and other Loan Documents, with respect to the Obligations contained
therein, and such holder or holders may enforce this Guaranty as if such holder
or holders had been originally named as Lender hereunder.
13. Payment of Costs of Enforcement. In the event any action or
proceeding is brought to enforce this Guaranty, Guarantor shall pay all costs
and expenses of Lender in connection with such action or proceeding, including,
without limitation, all reasonable attorneys' fees incurred by Lender.
14. Notices. Any notice required or permitted to be given by
Guarantor or Lender under this Guaranty shall be in writing and will be deemed
given (a) upon personal delivery, (b) on the first business day after receipted
delivery to a courier service which guarantees next-business day delivery, or
(c) on the fifth (5th) business day after mailing, by registered or certified
United States mail, postage prepaid, in any case to the appropriate party at its
address set forth below:
If to Guarantor:
Sonesta International Hotels Corporation
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Office of the Treasurer
If to Lender:
SunAmerica Life Insurance Company
0 XxxXxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Director-Mortgage Lending and Real Estate
Either party may change such party's address for notices or copies of notices by
giving notice to the other party in accordance with this Section 14.
15. Reinstatement of Obligations. If at any time all or any part of
any payment made by Guarantor or received by Lender from Guarantor under or with
respect to this Guaranty is or must be rescinded or returned for any reason
whatsoever (including, but not limited to, the insolvency, bankruptcy or
reorganization of any Guarantor), then the obligations of Guarantor hereunder
shall, to the extent of the payment rescinded or returned, and to the extent
permitted by law, be deemed to have continued in existence, notwithstanding such
previous payment made by Guarantor, or receipt of payment by Lender, and the
obligations of Guarantor hereunder shall continue to be effective or be
reinstated, as the case may be, as to such payment, all as though such previous
payment by Guarantor had never been made.
16. Severability of Provisions. If any provision hereof or of any
other Loan Document shall, for any reason and to any extent, be invalid or
unenforceable, then the remainder of the document in which such provision is set
forth, the application of the provision to other persons, entities or
circumstances, and any other document referred to herein shall not be affected
thereby but instead shall be enforceable to the maximum extent permitted by law.
17. Waiver. Neither the failure of Lender to exercise any right or
power given hereunder or to insist upon strict compliance by Borrower,
Guarantor, any other guarantor, or any other person with any of its obligations
set forth herein or in any of the Loan Documents, nor any practice of Borrower
or Guarantor at variance with the terms hereof or of any Loan Documents, shall
constitute a waiver of Lender's right to demand strict compliance with the terms
and provisions of this Guaranty.
18. Certain Waivers. GUARANTOR, BY SIGNING THIS GUARANTY, AND
LENDER, BY ACCEPTING IT, EACH KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS GUARANTY, OR ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER
AND GUARANTOR ENTERING INTO THE SUBJECT LOAN TRANSACTION.
19. Applicable Law. This Guaranty and the rights and obligations of
the parties hereunder shall be governed by and interpreted in accordance with
the laws of the State of Florida.
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the
day and year first above written.
GUARANTOR:
SONESTA INTERNATIONAL HOTELS
CORPORATION, a New York corporation
By: /s/
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Xxxxx X. Xxxxxxxxx, Vice President
