RECOURSE GUARANTY
RECOURSE GUARANTY dated as of December 7, 2005 ("Guaranty") made by
Winthrop Realty Trust (f/k/a First Union Real Estate Equity and Mortgage
Investments), an Ohio business trust ("Guarantor") to Arbor Realty Funding LLC,
a Delaware limited liability company ("Lender").
In consideration of Lender providing credit to Borrower, Guarantor hereby
agrees as follows:
Section 1. Definitions. As used in this Guaranty, the following terms have
the following meanings: -----------
"Borrower" means FT-TOY LLC, a Delaware limited liability company.
"Borrower Obligations" means any and all present and future liabilities
and obligations of Borrower to Lender, including all present and future
liabilities or obligations under or pursuant to any and all of the Loan
Documents together with all fees and expenses incurred in collecting any or all
of the items specified in this definition or enforcing any rights under any and
all Loan Documents.
"Guaranty" means this Recourse Guaranty.
"Guaranteed Obligations" means all Losses Lender incurs arising out of or
in connection with: (1) fraud or intentional misrepresentation or breach of
trust by Borrower or any other Person in connection with the execution and the
delivery of any of the Loan Documents, (2) any material misrepresentation,
miscertification or breach of warranty by Borrower or any other Person with
respect to any representation, warranty or certification contained in any Loan
Document or any document, certificate or report provided under, pursuant to, or
in connection with any Loan Document, (3) the misapplication or conversion of
any proceeds or the Loan, (4) the misapplication, misappropriation or conversion
of any funds held in any account maintained under or pursuant to any of the Loan
Documents, including any reserve account, (5) application of any Law resulting
in the forfeiture by Borrower of all or any portion of the Participation
Interest, (6) gross negligence, willful misconduct, or criminal acts perpetrated
by Borrower or Guarantor or any Affiliate of any such Person, (7) any failure by
Borrower to comply with the terms and provisions of "Single Purpose Entities"
(Article IV of the Loan Agreement), (8) any failure by Borrower to pay fees and
expenses of Lender pursuant to the provisions of "Indemnity and Expenses"
(Section 8.03 of the Loan Agreement), (9) any distributions or payments made by
Borrower in violation of the terms of the Loan Agreement, including
distributions made to equity holders in Borrower and payment of fees and
commissions to Guarantor or any Affiliate of Borrower, (10) any action or
proceeding directly or indirectly affecting Borrower or Lender's rights,
interest or remedies under any of the Loan Documents, (11) any expenses of
Lender to perfect, protect or maintain the priority of any Loan Document, and
(12) Guarantor (or any person comprising Guarantor), Borrower or any Affiliate
of any of the foregoing shall, in connection with any enforcement action or
exercise or assertion of any right or remedy by or on behalf of Lender under or
in connection with this Guaranty, the Note, the Pledge Agreement or any of the
other Loan Documents, asserts a defense, seeks judicial intervention or
injunctive or other equitable relief of any kind or asserts in a pleading filed
in connection with a judicial proceeding any defense against Lender or any right
in connection with any security for the Loan which the court in such action or
proceeding determines is without merit (in respect of a defense) or unwarranted
(in respect of a request for judicial intervention or injunctive or other
equitable relief).
Provided, however, Guaranteed Obligations means all liabilities and obligations
of Borrower to Lender, including all of the Borrower Obligations, (1) in the
event of a Prohibited Transfer, (2) in the event any Proceeding is instituted
by, implemented with respect to Borrower other than by Lender or for the benefit
of Lender, (3) in the event any Proceeding is filed by, consented to, or
acquiesced in by Borrower, or (4) except to the extent appointed by Lender or
the benefit of Lender, if a receiver, liquidator or trustee of Borrower is
appointed, and Borrower or any Affiliate of Borrower colludes in or otherwise
cooperates with such appointment, or Borrower does not file timely objection to
such appointment and otherwise take such appropriate actions as would be taken
by a debtor to attempt to prevent such appointment, or if Borrower is
adjudicated bankrupt or insolvent in an involuntary Proceeding and Borrower or
any Affiliate of Borrower colludes in or otherwise cooperates with such
adjudication, or Borrower does not timely object to such adjudication and
otherwise take such appropriate actions as would be taken by a debtor to attempt
to prevent such adjudication, (5) if Borrower incurs any indebtedness or
obligations in violations of the terms of the Loan Documents, (6) if the grant
by Borrower of a security interest in the Participation Interest pursuant to the
Pledge Agreement is deemed to be a fraudulent conveyance by a court of competent
jurisdiction, (7) if Borrower fails to perform or observe any term, covenant or
agreement contained in Section 6.04 of the Loan Agreement, or (8) if Borrower
opposes a motion by Lender to lift the automatic stay imposed pursuant to 11
U.S.C. ss.362 and for leave to foreclose on any collateral for the Loan.
"Guarantor" means Winthrop Realty Trust (f/k/a First Union Real Estate
Equity and Mortgage Investments), an Ohio business trust.
"Lender" means Arbor Realty Funding LLC, a Delaware limited liability
company.
"Loan" means the loan evidenced by the Note.
"Loan Agreement" means the Loan Agreement dated as of the date of this
Guaranty between Borrower and Lender.
"Loan Documents" means the Note, the Loan Agreement and each other
document or agreement entered into pursuant to, or in connection with, the Note
or Loan Agreement.
"Losses" means any and all losses (including loss of principal, interest
and fees under any and all Loan Documents), costs and expenses incurred by
Lender in respect of or as a result of any or all claims, suits, liabilities
(including strict liabilities), actions, demands, proceedings, obligations,
debts, damages (including punitive and consequential damages), trials, fines,
penalties, charges, injury to a person, property or natural resource, fees,
judgments, accounts, orders, adjudications, awards, liens, injunctive relief,
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causes of action or amounts paid in settlement of whatever kind or nature,
including attorney's fees and consultant's fees and other cost of defense or
otherwise related thereto.
"Material Adverse Change" means either (1) a material adverse change in
the status of the assets, liabilities, financial condition or property of
Guarantor, or (2) any event or occurrence of whatever nature which does or is
reasonably likely to have a material adverse effect on the ability of Guarantor
to perform his obligations under this Guaranty.
"Note" means the $30,000,000.00 Promissory Note dated as of the date of
this Agreement made by Borrower and payable to Lender.
"Obligations" means both Borrower Obligations and Guaranteed Obligations.
"Person" means an individual, partnership (including a limited liability
partnership), corporation, limited liability company, business trust, joint
stock company, trust, unincorporated associates, joint venture, Governmental
Authority or other entity of whatever nature.
"Proceeding" means any dissolution, winding up, liquidation, arrangement,
reorganization, adjustment, protection, relief or composition of Borrower, or
its debts, whether in any bankruptcy, insolvency, arrangement, reorganization,
receivership, relief or similar proceedings or upon an assignment for the
benefit of creditors or any other marshalling of the assets and liabilities of
Borrower.
Unless otherwise specified in this Guaranty, terms defined in the Loan
Agreement which are used in this Guaranty will have the same meaning when used
in this Guaranty. Guarantor hereby acknowledges receipt of a copy of the Loan
Agreement.
Section 2. Rules of Interpretation. When used in this Guaranty: (1) "or"
is not exclusive, (2) any pronouns used shall include the corresponding
masculine, feminine or neuter form, (3) the singular form of nouns shall include
the plural and vice versa, (4) a reference to a Law includes any amendment or
modification to such Law, and (5) a reference to an agreement, instrument or
document includes any amendment or modification of such agreement, instrument or
document if and to the extent such amendment or modification is permitted under
the Loan Documents.
Section 3. Guaranty. Guarantor hereby guarantees to Lender and its
successors, endorsees, transferees and assigns the prompt and complete payment,
as and when due and payable, whether at stated maturity or by required
prepayment, acceleration, demand or otherwise, all of the Guaranteed Obligations
now existing or hereafter incurred.
Section 4. Payment Under Guaranty. Upon demand by Lender, Guarantor shall
immediately pay to Lender at the address of Lender specified in this Guaranty in
lawful money of the United States of America each amount due by Guarantor under
this Guaranty. The amount of such payment shall not be reduced by any setoff,
counterclaim or crossclaim whether such setoff or claim relates to this
Guaranty, the Guaranteed Obligations or otherwise.
All payments made by Guarantor pursuant to this Guaranty shall be made
free and clear of and without deduction for any taxes, levies, imposts,
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deductions, charges or withholdings, and all related liabilities. If Guarantor
is required by Law to deduct any such item from or in respect of any sum payable
to Lender under this Guaranty, the amount payable under this Guaranty shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
Lender receives an amount equal to the sum it would have received had no such
deductions been made. In addition, Guarantor agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made under this Guaranty or from the
execution, delivery or registration of, or otherwise with respect to, this
Guaranty.
Section 5. Limitation of Liability. The obligation of Guarantor under this
Guaranty shall be limited to an aggregate amount equal to the largest amount
that would not render the obligation of Guarantor under this Guaranty subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provision of any applicable state law.
Section 6. Type of Guaranty. This Guaranty is absolute and unconditional
and as such is not subject to any conditions and Guarantor is fully liable to
perform all of his duties and obligations under this Guaranty as of the date of
execution of this Guaranty. This Guaranty is a continuing guaranty and applies
to all future Guaranteed Obligations. This Guaranty is a guaranty of payment and
not of collection. The obligations and liabilities of Guarantor under this
Guaranty shall not be conditioned or contingent upon the pursuit by Lender of
any right or remedy against Borrower or any other Person which may be or become
liable in respect of all or any part of the Guaranteed Obligations, or against
any assets securing the payment of the Guaranteed Obligations or any guarantee
of such Guaranteed Obligations or right of setoff with respect to such
Guaranteed Obligations. This Guaranty is irrevocable and as such cannot be
cancelled, terminated or revoked by Guarantor.
Section 7. Reinstatement of Guaranty. This Guaranty shall continue to be
effective or shall be reinstated, as the case may be, if at any time any
payment, or any part thereof, of any of the Obligations are rescinded or must
otherwise be returned by Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of Borrower or otherwise, all as though such
payment had not been made.
Guarantor hereby consents that, without the necessity of any reservation
of rights against Guarantor and without notice to or further assent by
Guarantor, any demand for payment of any of the Obligations made by Lender may
be rescinded by Lender and any of such Obligations continued after such
rescission.
Section 8. Waiver of Notices. Guarantor hereby waives any and all notices
including (1) notice of or proof of reliance by Lender upon this Guaranty or
acceptance of this Guaranty, (2) notice of the incurrence of any Obligations or
the renewal, extension or accrual of any such Obligations, (3) notice of any
actions taken by Lender or Borrower or any other Person under any Loan Document,
(4) notices of nonpayment or nonperformance, protest, notices of protest and
notices of dishonor, and (5) notice of intent to accelerate and notice of
acceleration of any or all Obligations.
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Section 9. Waiver of Defenses. Guarantor hereby waives any and all
defenses to the performance by Guarantor of his duties and obligations under
this Guaranty, including any defense based on any of the following:
(1) any failure of Lender to disclose to Guarantor any information
relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any Person obligated to make payment on
any and all Obligations, whether as principal or guarantor, now or hereafter
known to Lender,
(2) any defense to the payment of any or all the Obligations, including
lack of validity or enforceability of any of the Obligations or any Loan
Document,
(3) any change in the time, manner or place of payment of, or in any other
term in respect of, all or any of the Obligations, or any other amendment or
waiver of or consent to any departure from any Loan Document,
(4) any exchange or release of, or non-perfection of any security interest
on or in any assets securing the payment of the Obligations,
(5) any failure to execute any other guaranty for all or any part of the
Obligations, or any release or amendment or waiver of, or consent to any
departure from, any other guaranty for any or all of the Obligations,
(6) any failure to execute any subordination agreement for all or any part
of the Obligations, or any release or amendment or waiver of, or consent to any
departure from, any subordination agreement for all or any of the Obligations,
(7) any subordination of any or all of the Obligations,
(8) any act or omission of Lender in connection with the enforcement of,
or the exercise of rights and remedies, including any election of, or the order
of exercising any, remedies, with respect to (a) the Obligations, (b) any other
guarantor of the Obligations, (c) any person that executes a subordination
agreement for any Obligations, or (d) any assets securing the payment of the
Obligations,
(9) any manner of application of any funds received by Lender to
Obligations or any other obligations owed to Lender, whether from the sale or
disposition of any assets securing the Obligations, from another guarantor of
the Obligations or otherwise,
(10) any failure to give or provide any notices, demands or protests,
including those specified under "Waiver of Notices" (Section 8), and
(11) any benefit of any statute of limitations affecting Guarantor's
liability under this Guaranty or the enforcement of this Guaranty.
In addition, Guarantor hereby irrevocably waives any and all right to
assert any setoff, counterclaim or crossclaim of any nature with respect to this
Guaranty or the obligations of Guarantor under this Guaranty.
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Section 10. Subrogation. Guarantor agrees not to exercise any rights which
Guarantor may acquire by way of subrogation or contribution, whether acquired by
any payment made under this Guaranty, by any setoff or application of funds of
Borrower, by Lender or otherwise, until (1) the payment in full of the
Obligations, and (2) the payment of all fees and expenses to be paid by
Guarantor pursuant to this Guaranty. If any amount shall be paid to Guarantor on
account of such subrogation or contribution rights at any time when all of the
Obligations and all such other expenses have not been paid in full, such amount
shall be held in trust for the benefit of Lender, shall be segregated from the
other funds of Guarantor and shall forthwith be paid over to Lender to be
credited and applied in whole or in part by Lender against the Obligations,
whether matured or unmatured, and all such other fees and expenses.
Section 11. Representations. At the time of execution of this Guaranty,
Guarantor represents and warrants to Lender as follows:
(1) No Contravention. The execution, delivery and performance by Guarantor
of this Guaranty does not and will not (a) violate any provision of any Law,
order, writ, judgment, injunction, decree, determination, or award presently in
effect applicable to Guarantor, (b) result in a breach of, or constitute a
default under, any indenture or loan or credit agreement or any other agreement,
lease, or instrument to which Guarantor is a party or by which Guarantor or its
properties may be bound or affected, or (c) result in, or require, the creation
or imposition of any Lien upon or with respect to any of the properties now
owned or hereafter acquired by Guarantor.
(2) Governmental Authority. No authorization, approval or other action by,
and no notice to or filing with, any Governmental Authority is required for the
due execution, delivery and performance by Guarantor of this Guaranty.
(3) Legally Enforceable Guaranty. This Guaranty is the legal, valid and
binding obligation of Guarantor, enforceable against Guarantor in accordance
with its terms, except to the extent that such enforcement may be limited by (a)
applicable bankruptcy, insolvency, and other similar laws affecting creditors'
rights generally, or (b) general equitable principles, regardless of whether the
issue of enforceability is considered in a proceeding in equity or at law.
(4) Solvency. Guarantor is solvent and will not be rendered insolvent by
the transactions contemplated by this Guaranty.
(5) Financial Statements. The financial statements of and other financial
information related to Guarantor that were delivered to Lender, are true,
correct and complete in all material respects. Such financial statements fairly
present the financial position of Guarantor. No Material Adverse Change has
occurred since the date of such financial statements.
(6) Disclosure. None of Guarantor's representations or warranties
contained in this Guaranty or any other document, certificate or written
statement furnished to Lender by or on behalf of Guarantor contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained in this Guaranty or in such other
document, certificate or written statement not misleading. There is no fact
known to Guarantor which could result in a Material Adverse Change which has not
been disclosed in writing to Lender by Guarantor.
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Section 12. Reporting Requirements. Guarantor will provide immediate
notice to Lender if (1) any representation and warranty included in this
Guaranty would no longer be true if made on such date or (2) there is a Material
Adverse Change. Guarantor will furnish to Lender from time to time such
information regarding Guarantor as Lender may reasonably request.
Section 13. Remedies. Lender shall not, by any act, delay, omission or
otherwise, be deemed to have waived any of its rights or remedies under this
Guaranty or otherwise. A waiver by Lender of any right or remedy under this
Guaranty on any one occasion, shall not be construed as a ban or waiver of any
such right or remedy which Lender would have had on any future occasion, nor
shall Lender be liable for exercising or failing to exercise any such right or
remedy.
The rights and remedies of Lender under this Guaranty are cumulative and,
as such, are in addition to any other rights and remedies available to Lender
under Law or any other agreements.
If an Event of Default occurs and Lender is exercising any of its rights
and remedies with respect to Borrower, to the extent permitted by Law, Guarantor
will not object to any action taken by Lender in enforcing such rights and
remedies to the extent such action is permitted by Law.
Section 14. Appointment as Attorney-in-Fact. Guarantor hereby appoints
Lender as the attorney-in-fact for Guarantor, with full authority in the place
and stead of Guarantor and in the name of Guarantor or otherwise, to exercise
all rights and remedies granted to Lender under this Guaranty and to take any
action and to execute any instrument which Lender may deem necessary or
advisable to accomplish the purposes of this Guaranty.
Guarantor hereby ratifies and approves all acts of Lender as his
attorney-in-fact pursuant to this Section, and Lender, as his attorney-in-fact,
will not be liable for any acts of commission or omission, nor for any error in
judgment or mistake of fact or law, other than those resulting from Lender's
gross negligence or willful misconduct. This power, being coupled with an
interest, is irrevocable so long as this Guaranty remains in effect.
Section 15. Indemnity and Expenses. Guarantor hereby indemnifies Lender
from and against any and all claims, losses, damages and liabilities growing out
of or resulting from this Guaranty, including enforcement of this Guaranty,
except claims, losses, damages or liabilities resulting from Lender's gross
negligence and willful misconduct.
Guarantor will upon demand pay to Lender the amount of any and all
expenses, including the fees and expenses of Lender's counsel and of any experts
and agents, which Lender incurs in connection with (1) any amendment to this
Guaranty, (2) the administration of this Guaranty, (3) the exercise or
enforcement of any of the rights of Lender under this Guaranty, or (4) the
failure by Guarantor to perform or observe any of the provisions of this
Guaranty.
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Section 16. Amendments. No amendment or waiver of any provision of this
Guaranty, nor consent to any departure by Guarantor from this Guaranty, shall in
any event be effective unless the same shall be in writing and signed by
Guarantor and Lender, and then such amendment or waiver shall be effective only
in the specific instance and for the specific purpose for which given.
Section 17. Addresses for Notices. All notices and other communications
provided for under this Guaranty shall be in writing and, mailed or delivered by
messenger or overnight delivery service, addressed, in the case of Guarantor at
the address specified below his signature, and in the case of Lender at the
address specified below, or as to any such party at such other address as shall
be designated by such party in a written notice to the other party complying as
to delivery with the terms of this Section.
Arbor Realty Funding LLC
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxx, Xx., General Counsel
Facsimile No. (000) 000-0000
With a copy to:
Arbor Realty Funding LLC
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Asset Management - Loan Monitoring
Facsimile No. (000) 000-0000
And:
Kronish Xxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. X'Xxxxxx, Esq.
Facsimile No. (000) 000-0000
All such notices and other communications shall, when mailed, be effective three
(3) days after being placed in the mails, or when delivered to a messenger or
overnight delivery service, be effective one (1) day after being delivered to
the messenger or overnight delivery service, in each case, addressed as
specified above.
Section 18. Assignment and Transfer of Obligations. This Guaranty will
bind the estate of Guarantor as to Obligations created or incurred both before
and after the death or incapacity of Guarantor, whether or not Lender receives
notice of such death or incapacity. This Guaranty shall inure to the benefit of
Lender and its successors, transferees and assigns. Guarantor may not transfer
or assign his obligations under this Guaranty. Lender may assign or otherwise
transfer all or a portion of its rights or obligations with respect to the
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Obligations to any other Person, and such other Person shall then become vested
with all the benefits in respect of such transferred Obligations granted to
Lender in this Guaranty or otherwise. Guarantor agrees that Lender can provide
information regarding Guarantor to any prospective or actual successor,
transferee or assign.
Section 19. Setoff. Guarantor agrees that, in addition to, and without
limiting, any right of setoff, banker's lien or counterclaim Lender may
otherwise have, Lender shall be entitled, at its option, to offset balances
(general or special, time or demand, provisional or final) held by Lender for
the account of Guarantor, at any of the offices of Lender, in Dollars or any
other currency, against any amount payable by Guarantor to Lender under this
Guaranty which is not paid when demanded (regardless of whether such balances
are then due to Guarantor), in which case Lender shall promptly notify
Guarantor, provided that Lender's failure to give such notice shall not affect
the validity of such offset.
Section 20. Submission to Jurisdiction. Guarantor hereby irrevocably
submits to the jurisdiction of any federal or state court sitting in Nassau
County in the State of New York over any action or proceeding arising out of or
related to this Guaranty and agrees with Lender that personal jurisdiction over
Guarantor rests with such courts for purposes of any action on or related to
this Guaranty. Guarantor hereby waives personal service by manual delivery and
agrees that service of process may be made by prepaid certified mail directed to
Guarantor at the address of Guarantor for notices under this Guaranty or at such
other address as may be designated in writing by Guarantor to Lender, and that
upon mailing of such process such service will be effective as if Guarantor was
personally served. Guarantor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any manner provided by Law. Guarantor further waives
any objection to venue in any such action or proceeding on the basis of
inconvenient forum. Guarantor agrees that any action on or proceeding brought
against Lender shall only be brought in such courts.
Section 21. Governing Law. This Guaranty shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to its principles of conflicts of law.
Section 22. Subordination. Upon the earlier of (1) the occurrence of an
Event of Default or (2) a demand for payment is made on the Guarantor under this
Guaranty, Guarantor will not (1) make any demand for payment of, or take any
action to accelerate, any obligation owed to Guarantor by Borrower, (2) seek to
collect payment of, or enforce any right or remedies against Borrower, any of
the obligations owed to Guarantor by Borrower or any guarantees, credit
supports, collateral or other security related to or supporting any of such
obligations, or (3) commence, or join with any other creditor in commencing, any
Proceeding against Borrower.
Guarantor also agrees that the payment of all obligations of Borrower to
Guarantor shall be subordinate and junior in time and right of payment in
accordance with the terms of this Section to the prior payment in full (in cash)
of the Guaranteed Obligations. In furtherance of such subordination, (1) to the
extent possible, Guarantor will not take or receive from Borrower any payments,
in cash or any other property, by setoff or any other means, of any or all of
the obligations owed to Guarantor by Borrower, or purchase, redeem, or otherwise
acquire any such obligations, or change the terms or provisions of any such
obligations and (2) if for any reason and under any circumstance Guarantor
receives a payment on such obligation, whether in a Proceeding or otherwise, all
such payments or distributions upon or with respect to such obligations shall be
received in trust for the benefit of Lender, shall be segregated from other
funds and property held by Guarantor and shall be forthwith paid over to Lender
in the same form as so received (with any necessary endorsement) to be applied
to, or held as collateral for, the payment or prepayment of the Guaranteed
Obligations.
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In the event Borrower is in a Proceeding, to the extent permitted by Law,
as directed by Lender Guarantor will either (1) duly and promptly take all
actions required, and if so directed by Lender as directed by Lender, to collect
and receive any and all payments and distributions on the obligations owed to
Guarantor by Borrower and all related guaranties, collateral and other security
in connection with such Proceeding, including the filing of all claims and
proofs of claim, or (2) take all actions and execute all documents required to
enable Lender to exercise all rights to collect and receive any and all payments
and distributions on the obligations owed to Guarantor by Borrower and all
related guaranties, collateral and other security in connection with such
Proceeding, including the assignment, endorsement and delivery of all notes or
instruments evidencing the obligations owed to Guarantor by Borrower together
with all guarantees, collateral and other security related thereto, and then
Lender shall have the right to (a) make all claims, (b) enforce all rights
related to the obligations owed to Guarantor by Borrower, either in its own name
or in the name of Guarantor, and (c) collect, receive and accept any and all
sums or distributions of any kind that may become due and payable or
distributable on or in respect of any or all of the obligations owed to
Guarantor by Borrower or such guarantees, collateral or other security. In
addition, to the extent permitted by Law, Guarantor shall not object to any
action taken by Lender in connection with a Proceeding.
Guarantor agrees that any subrogation rights Guarantor may acquire as a
result of a payment under this Section may not be exercised until (1) the
payment in full of the Obligations, and (2) the payment of all fees and expenses
to be paid by Guarantor pursuant to this Guaranty.
Section 23. Miscellaneous. This Guaranty is in addition to and not in
limitation of any other rights and remedies Lender may have by virtue of any
other instrument or agreement previously, contemporaneously or hereafter
executed by Guarantor or any other Person or by Law or otherwise. If any
provision of this Guaranty is contrary to applicable Law, such provision shall
be deemed ineffective without invalidating the remaining provisions of this
Guaranty. Titles in this Guaranty are for convenience of reference only and
shall not affect the interpretation or construction of this Guaranty. This
Guaranty constitutes the entire agreement between Guarantor and Lender with
respect to the matters covered by this Guaranty and supercedes all written or
oral agreements with respect to such matters.
Section 24. WAIVER OF JURY TRIAL. GUARANTOR EXPRESSLY WAIVES ANY AND EVERY
RIGHT TO A TRIAL BY JURY IN ANY ACTION ON OR RELATED TO THIS GUARANTY.
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IN WITNESS WHEREOF, Guarantor has duly executed and delivered this
Guaranty as of the date of this Guaranty.
WINTHROP REALTY TRUST
By:
------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
Address for Notices:
0 Xxxxxxxx Xxxxx
Xxxxx 000, X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxx Xxxxxx
With copies to:
Winthrop Realty Trust
Two Xxxxxxx Xxxxx
Xxxx X, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
and
Post Xxxxxxx & Koffler LLP
Two Xxxxxxx Xxxxx
Xxxx X, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
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ACKNOWLEDGEMENT:
STATE OF ________________ )
) SS:
COUNTY OF _______________ )
Before me, a Notary Public in and for said County and State, personally
appeared ________________________, the _____________________ of _____________,
who acknowledged the execution of the foregoing instrument as such officer
acting for and on behalf of said limited liability company.
Witness my hand and Notarial Seal this _______ day of ___________, 2005.
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(signature)
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My Commission Expires: (printed name) Notary Public
_____________________ Resident of _______________ County
