CONTINUING GUARANTY
EXHIBIT 10.2
CONTINUING GUARANTY (as amended, modified, restated and/or supplemented from time to time,
this “Guaranty”), dated as of May 2, 2011 made by and among each of the undersigned
guarantors (each, a “Guarantor” and collectively, the “Guarantors”) in favor of
BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, together with any successor
administrative agent, the “Administrative Agent”), for the benefit of the Secured Parties.
Except as otherwise defined herein, all capitalized terms used herein and defined in the Credit
Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, Corporate Property Associates 16 — Global Incorporated, a Maryland corporation (the
“REIT”), CPA 16 LLC, a Delaware limited liability company (the “Operating
Partnership”, and together with the REIT, the “Parent Guarantors”), CPA 16 Merger Sub
Inc., a Maryland corporation (the “Borrower”), the lenders from time to time party thereto
(the “Lenders”) and the Administrative Agent have entered into a Credit Agreement, dated as
of the date hereof (as amended, modified, restated and/or supplemented from time to time, the
“Credit Agreement”), providing for the making of Loans to the Borrower, and the issuance of
Letters of Credit for the account of the REIT and/or one or more of its Subsidiaries, all as
contemplated therein;
WHEREAS, each Guarantor is the REIT, the Operating Partnership or a direct or indirect
Subsidiary of the Borrower or the REIT;
WHEREAS, it is a condition precedent to the effectiveness of the Credit Agreement and the
making of Loans to the Borrower, and the issuance of Letters of Credit for the account of the REIT
and/or one or more of its Subsidiaries, that each Guarantor shall have executed and delivered this
Guaranty to the Administrative Agent; and
WHEREAS, each Guarantor will obtain substantial direct and indirect benefits from the
incurrence of Loans by the Borrower and the issuance of Letters of Credit for the account of the
REIT and/or one or more of its Subsidiaries under the Credit Agreement and, accordingly, desires to
execute this Guaranty in order to satisfy the condition described in the preceding paragraph and to
induce the Lenders to make Loans to the Borrower and the L/C Issuer to issue Letters of Credit for
the account of the REIT and/or one or more of its Subsidiaries;
NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to each
Guarantor, the receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby
makes the following representations and warranties to the Administrative Agent for the benefit of
the Secured Parties and hereby covenants and agrees with each other Guarantor and the
Administrative Agent for the benefit of the Secured Parties as follows:
1. Guaranty. Each Guarantor, jointly and severally with the other Guarantors, hereby absolutely,
irrevocably and unconditionally guarantees, as a guaranty of payment and performance and not as a
guaranty of collection, prompt payment when due, whether at stated maturity, by required
prepayment, upon acceleration, demand or otherwise, and at all times
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thereafter, of all of the Obligations, including without limitation (i) the principal of, and premium, if any, and interest
on, the Loans made to, the Borrower under the Credit Agreement, and all reimbursement obligations
and all payments and disbursements made by the L/C Issuer and the Lenders with respect to Letters
of Credit, (ii) all renewals, extensions, amendments, refinancings and other modifications thereof,
(iii) all out-of-pocket expenses incurred by any Secured Party (including the fees, charges and
disbursements of any counsel for any Secured Party) in connection with the collection or
enforcement thereof, and whether recovery upon such Obligations may be or hereafter become
unenforceable or shall be an allowed or disallowed claim under any proceeding or case commenced by
or against the Borrower or any other Loan Party under the Bankruptcy Code (Title 11, United States
Code), any successor statute or any other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or
similar debtor relief laws of the United States or other applicable jurisdictions from time to time
in effect and affecting the rights of creditors generally (collectively, “Debtor Relief
Laws”), and including interest that accrues after the commencement by or against the Borrower
or any other Loan Party of any proceeding under any Debtor Relief Laws, (iv) all advances to, and
debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Secured
Hedge Agreement and (v) all indebtedness, liabilities, duties and obligations of any Loan Party
arising out of Bank of America or any Affiliate of Bank of America providing treasury management
services to, for the benefit of or otherwise in respect of such Loan Party, including, without
limitation, intraday credit, Automated Clearing House (ACH) services, foreign exchange services,
overdrafts and zero balance arrangements, and any instruments, agreements or other documents
executed in connection therewith (collectively, the “Guaranteed Obligations”). The books
and records of the Administrative Agent or the Secured Parties showing the amount of the Guaranteed
Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon
the Guarantors and conclusive for the purpose of establishing the amount of the Guaranteed
Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or
enforceability of the Guaranteed Obligations or any instrument or agreement evidencing any
Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection
or extent of any collateral therefor, or by any fact or circumstance relating to the Guaranteed
Obligations which might otherwise constitute a defense to the obligations of any Guarantor under
this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to any or all of the foregoing. Furthermore, this Guaranty
shall remain in full force and effect without regard to, and shall not be affected or impaired,
without limitation, by, any invalidity, irregularity or unenforceability in whole or in part
(including with respect to any netting provision) of any Secured Hedge Agreement or any
confirmation, instrument or agreement required thereunder or related thereto, or any transaction
entered into thereunder, or any limitation on the method or terms of payment thereunder which may
now or in the future be caused or imposed in any manner whatsoever.
Anything contained in this Guaranty to the contrary notwithstanding, it is the intention of
each Guarantor and the Secured Parties that the obligations of each Guarantor hereunder at any time
shall be limited to an aggregate amount equal to the largest amount that would not render its
obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548
of the Bankruptcy Code (Title 11, United States Code) or any comparable provisions of any similar
federal or state law. To that end, but only in the event and to the extent that after giving
effect to Section 20 of this Guaranty, such Guarantor’s obligations
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with respect to the Guaranteed Obligations or any payment made pursuant to such Guaranteed Obligations would, but for
the operation of the first sentence of this paragraph, be subject to avoidance or recovery in any
such proceeding under applicable Debtor Relief Laws after giving effect to Section 20 of
this Guaranty, the amount of such Guarantor’s obligations with respect to the Guaranteed
Obligations shall be limited to the largest amount which, after giving effect thereto, would not,
under applicable Debtor Relief Laws, render such Guarantor’s obligations with respect to the
Guaranteed Obligations unenforceable or avoidable or otherwise subject to recovery under applicable
Debtor Relief Laws. To the extent any payment actually made pursuant to the Guaranteed Obligations
exceeds the limitation of the first sentence of this paragraph and is otherwise subject to
avoidance and recovery in any such proceeding under applicable Debtor Relief Laws, the amount
subject to avoidance shall in all events be limited to the amount by which such actual payment
exceeds such limitation, and the Guaranteed Obligations as limited by the first sentence of this
paragraph shall in all events remain in full force and effect and be fully enforceable against such
Guarantor. The first sentence of this paragraph is intended solely to preserve the rights of the
Secured Parties hereunder against such Guarantor in such proceeding to the maximum extent permitted
by applicable Debtor Relief Laws and neither such Guarantor, the Borrower, any other Guarantor nor
any other Person shall have any right or claim under such sentence that would not otherwise be
available under applicable Debtor Relief Laws in such proceeding.
2. No Setoff or Deductions; Taxes; Payments. Each Guarantor shall make all payments hereunder
without setoff or counterclaim and free and clear of and without deduction for any taxes, levies,
imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless such Guarantor is compelled by law
to make such deduction or withholding. If any such obligation (other than one arising with respect
to Excluded Taxes) is imposed upon a Guarantor with respect to any amount payable by it hereunder,
such Guarantor will pay to the Administrative Agent for the benefit of the Secured Parties for
application to the Guaranteed Obligations in accordance with the terms of the Loan Documents or, if
the Loan Documents do not provide for the application of such amount, to be held by the
Administrative Agent as collateral security for any Guaranteed Obligations thereafter existing, on
the date on which such amount is due and payable hereunder, such additional amount in Dollars as
shall be necessary to enable the Secured Parties to receive the same net amount which the Secured
Parties would have received on such due date had no such obligation been imposed upon such
Guarantor. Each Guarantor will deliver promptly to the Secured Parties certificates or other valid
vouchers for all taxes or other charges deducted from or paid with respect to payments made by such
Guarantor hereunder. The obligations of the Guarantors under this paragraph shall survive the
payment in full of the Guaranteed Obligations and termination of this Guaranty. The obligations
hereunder shall not be affected by any acts of any Governmental Authority affecting any Guarantor
or any other Loan Party, including but not limited to, any restrictions on the conversion of
currency or repatriation or control of funds or any total or partial expropriation of any
Guarantor’s or any other Loan Party’s property, or by economic, political, regulatory or other
events in the countries where any Guarantor or any other Loan Party is located.
3. Rights of Secured Parties. Each Guarantor consents and agrees that the Secured Parties may, at
any time and from time to time, without notice or demand to or consent of such
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Guarantor, and without affecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew,
compromise, discharge, accelerate or otherwise change the times for payment or the terms of the
Guaranteed Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail
to perfect, sell, impair, or otherwise dispose of any security, or any Lien granted, for the
payment of this Guaranty or any Guaranteed Obligations; (c) apply such security and direct the
order or manner of sale thereof as provided in the Loan Documents; and (d) release or substitute
any other Guarantor or one or more of any endorsers or other guarantors of any of the Guaranteed
Obligations. Without limiting the generality of the foregoing, each Guarantor consents to the
taking of, or failure to take, any action which might in any manner or to any extent vary the risks
of the Guarantors under this Guaranty or which, but for this provision, might operate as a
discharge of one or more of the Guarantors. .
4. Certain Waivers. Each Guarantor waives (a) any defense arising by reason of any disability or
other defense of the Borrower, any other Loan Party or any other guarantor of the Guaranteed
Obligations or any part thereof, or the cessation from any cause whatsoever (including any act or
omission of any Secured Party) of the liability of the Borrower, other than the defense of payment
in full in cash or immediately available funds of all the Guaranteed Obligations; (b) any defense
based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of
the Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability
hereunder; (d) any right to require any Secured Party to proceed against the Borrower or any other
Loan Party, proceed against or exhaust any security for any of the Guaranteed Obligations, or
pursue any other remedy in the power of any Secured Party; (e) any benefit of and any right to
participate in any security now or hereafter held by any Secured Party; and (f) to the full extent
permitted by law, any and all other defenses or benefits that may be derived from or afforded by
applicable law limiting the liability of or exonerating guarantors or sureties. Each Guarantor
expressly waives all setoffs and counterclaims and all presentments, demands for payment or
performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of
dishonor and all other notices or demands of any kind or nature whatsoever with respect to the
Guaranteed Obligations, and all notices of acceptance of this Guaranty or of the existence,
creation or incurrence of new or additional Guaranteed Obligations.
5. Obligations Independent. The obligations of each Guarantor hereunder are those of primary
obligor, and not merely as surety, and are independent of the Guaranteed Obligations and the
obligations of any other guarantor of the Guaranteed Obligations or any part thereof, and a
separate action may be brought against any Guarantor to enforce this Guaranty whether or not the
Borrower or any other Person is joined as a party. For the avoidance of doubt, all obligations of
each Guarantor under this Guaranty are joint and several obligations of all the Guarantors.
6. Subrogation. No Guarantor shall exercise any right of subrogation, contribution, indemnity,
reimbursement or similar rights with respect to any payments it makes under this Guaranty until all
of the Guaranteed Obligations and any amounts payable under this Guaranty have been indefeasibly
paid and performed in full in immediately available funds, all Commitments are terminated and all
Letters or Credit have been cancelled, have expired or terminated or have been collateralized to
the satisfaction of the Administrative Agent and the L/C Issuer. If any amounts are paid to any
Guarantor in violation of the foregoing limitation,
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then such amounts shall be held in trust by such Guarantor for the benefit of the Secured Parties and shall forthwith be paid to the
Administrative Agent for the benefit of the Secured Parties for application to the Guaranteed
Obligations in accordance with the terms of the Loan Documents or, if the Loan Documents do not
provide for the application of such amount, to be held by the Administrative Agent as collateral
security for any Guaranteed Obligations thereafter existing, whether matured or unmatured.
7. Termination; Reinstatement. This Guaranty is a continuing, absolute, unconditional and
irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and shall remain in
full force and effect until all of the Guaranteed Obligations and any amounts payable under this
Guaranty have been indefeasibly paid and performed in full in immediately available funds, all
Commitments are terminated and all Letters or Credit have been cancelled, have expired or
terminated or have been collateralized to the satisfaction of the Administrative Agent and the L/C
Issuer. In the event that this Guaranty is terminated in accordance with the prior sentence, the
Administrative Agent shall execute and deliver to any Guarantor, at such Guarantor’s expense, all
documents that such Guarantor shall reasonably request to evidence such termination.
Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived,
as the case may be, if any payment by or on behalf of the Borrower or a Guarantor is made, or a
Secured Party exercises its right of setoff, in respect of the Guaranteed Obligations and such
payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to
be fraudulent or preferential, set aside or required (including pursuant to any settlement entered
into by a Secured Party in its discretion) to be repaid to a trustee, receiver or any other party,
in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment
had not been made or such setoff had not occurred and whether or not the Secured Parties are in
possession of or have released this Guaranty and regardless of any prior revocation, rescission,
termination or reduction. The obligations of the Guarantors under this paragraph shall survive
termination of this Guaranty.
8. Release of Liability of Guarantor Upon Sale or Dissolution. At the request and at the sole
expense of the Borrower, in the event that (i) any Guarantor (other than a Parent Guarantor)
becomes an Excluded Subsidiary or an Immaterial Subsidiary as a result of a transaction permitted
under the Credit Agreement or (ii) all of the capital stock or other Equity Interests of any
Guarantor is sold or otherwise disposed of (including by way of the merger or consolidation of such
Guarantor with or into another Person) or liquidated (except to the extent that such sale or
disposition is to the Borrower, a Guarantor or a Person required under the Credit Agreement to be a
Guarantor) in any such case in compliance with the requirements of Section 7.05 of the Credit
Agreement and the proceeds of such sale, disposition or liquidation are applied in accordance with
the provisions of the Credit Agreement, to the extent applicable, then such Guarantor shall, upon
becoming an Excluded Subsidiary or an Immaterial Subsidiary or upon the consummation of such sale
or other disposition, as applicable, be released from its obligations under this Guaranty and the
Administrative Agent shall, upon the request and at the sole expense of the Borrower, provide the
Borrower with written confirmation of such release and shall take such further actions as
reasonably requested by the Borrower to evidence such release; provided, that the Borrower
shall have delivered to the Administrative Agent, at least five Business Days prior to the date of
the proposed release, a written request for release, together with a certificate signed by a
Responsible Officer of the Borrower certifying that such Guarantor is an Excluded
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Subsidiary or an Immaterial Subsidiary or such sale or disposition, as applicable, is as a result of a transaction
permitted under the Credit Agreement.
9. Stay of Acceleration. In the event that acceleration of the time for payment of any of the
Guaranteed Obligations is stayed, in connection with any case commenced by or against the Borrower
or any other Loan Party under any Debtor Relief Laws, or otherwise, all such amounts shall
nonetheless be payable by the Guarantors who are not subject to such automatic stay immediately
upon demand by the Administrative Agent.
10. Expenses. The Guarantors shall pay on demand all out-of-pocket expenses incurred by any
Secured Party (including the fees, charges and disbursements of any counsel for any Secured Party),
and shall pay on demand all fees and time charges for attorneys who may be employees of any Secured
Party, in any way relating to the enforcement or protection of the rights of the Secured Parties
(or any of them) under this Guaranty or in respect of the Guaranteed Obligations, including any
incurred during any “workout” or restructuring in respect of the Guaranteed Obligations and any
incurred in the preservation, protection or enforcement of any rights of any Secured Party in any
proceeding any Debtor Relief Laws. The obligations of the Guarantors under this paragraph shall
survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
11. Modifications; Miscellaneous. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except in a writing signed by each Guarantor directly affected
thereby (it being understood that the addition or release of any Guarantor hereunder shall not
constitute a change, waiver, discharge or termination affecting any Guarantor other than the
Guarantor so added or released) and the Administrative Agent (with the consent of the Required
Lenders or all of the Lenders, to the extent required by Section 10.01 of the Credit Agreement).
No failure by any Secured Party to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right,
remedy or power hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law or in equity. The unenforceability or invalidity of any provision of this
Guaranty shall not affect the enforceability or validity of any other provision herein. This
Guaranty is not intended to supersede or otherwise affect any other guaranty now or hereafter given
by any Guarantor for the benefit of the Secured Parties (or any of them) or any term or provision
thereof.
12. Condition of Loan Parties. Each Guarantor acknowledges and agrees that it has the sole
responsibility for, and has adequate means of, obtaining from the Loan Parties and any other
guarantor of the Guaranteed Obligations such information concerning the financial condition,
business and operations of the Loan Parties and any such other guarantors as such Guarantor
requires, and that no Secured Party has any duty, and no Guarantor is relying on any Secured Party
at any time, to disclose to such Guarantor any information relating to the business, operations or
financial condition of any Loan Party or any other guarantor of the Guaranteed Obligations (such
Guarantor waiving any duty on the part of the Secured Parties to disclose such information and any
defense relating to the failure to provide the same).
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13. Setoff. In addition to any rights now or hereafter granted under applicable law (including,
without limitation, Section 151 of the New York Debtor and Creditor Law) and not by way of
limitation of any such rights, upon the occurrence and during the continuance of an Event of
Default, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized,
at any time or from time to time, to set off and to appropriate and apply any and all deposits
(general or special) and any other indebtedness at any time held or owing by such Lender, the L/C
Issuer or any of their respective Affiliates to or for the credit or the account of any Guarantor,
against and on account of the obligations and liabilities of such Guarantor to such Lender or the
L/C Issuer under this Guaranty, irrespective of whether or not such Lender or the L/C Issuer shall
have made any demand hereunder and although said obligations, liabilities, deposits or claims, or
any of them, shall be contingent or unmatured or are owed to a branch or office of such Lender
different from the branch or office holding such deposit or obligated on such indebtedness;
provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x)
all amounts so set off shall be paid over immediately to the Administrative Agent for further
application in accordance with the provisions of Section 2.17 of the Credit Agreement and, pending
such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in
trust for the benefit of the Administrative Agent and the Lenders, and (y) such Defaulting Lender
shall provide promptly to the Administrative Agent a statement describing in reasonable detail the
Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The
rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C
Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer (by its acceptance
of the benefits hereof) acknowledges and agrees to promptly notify the Borrower and the
Administrative Agent after any such set-off and application; provided, that the failure to
give such notice shall not affect the validity of such set-off and application.
14. Representations and Warranties. Each Guarantor represents and warrants that (a) it is duly
organized and in good standing under the laws of the jurisdiction of its organization and has full
capacity and right to make and perform this Guaranty, and all necessary authority has been
obtained; (b) this Guaranty constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws affecting the enforceability of
creditors’ rights generally and by general principles of equity (regardless of whether enforcement
is sought at law or in equity); (c) the making and performance of this Guaranty does not and will
not violate the provisions of any applicable law, regulation, judgment or order, and does not and
will not result in the breach of, or constitute a default or require any consent under, any
agreement, instrument, or document to which it is a party or by which it or any of its property may
be bound or affected, except, in each case under this clause (c), as could not reasonably be
expected to have a Material Adverse Effect; and (d) all consents, approvals, licenses and
authorizations of, and filings and registrations with, any Governmental Authority required under
applicable law and regulations for the making and performance of this Guaranty have been obtained
or made and are in full force and effect. In addition, each Guarantor represents and warrants that
(x) until all of the Guaranteed Obligations and any amounts payable under this Guaranty have been
indefeasibly paid and performed in full in immediately available funds, all Commitments are
terminated and all Letters or Credit have been cancelled, have expired or terminated or have been
collateralized to the satisfaction of the Administrative Agent
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and the L/C Issuer, such Guarantor will take, or will refrain from taking, as the case may be, all actions that are necessary to be
taken or not taken so that no violation of any provision, covenant or agreement contained in the
Credit Agreement, and so that no Event of Default, is caused by the actions of such Guarantor or
any of its Subsidiaries; and (y) an executed (or conformed) copy of each of the Loan Documents has
been made available to a senior officer of such Guarantor and such officer is familiar with the
contents thereof.
15. Indemnification and Survival. Without limitation on any other obligations of any Guarantor or
remedies of any Secured Party under this Guaranty, each Guarantor shall, to the full extent
permitted by law, indemnify, defend and save and hold harmless each Secured Party from and against,
and shall pay on demand, any and all damages, losses, liabilities and expenses (including
attorneys’ fees and expenses and the allocated cost and disbursements of internal legal counsel)
that may be suffered or incurred by such Secured Party in connection with or as a result of any
failure of any Guaranteed Obligations to be the legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their terms; provided that
such indemnity shall not, as to any Secured Party, be available to the extent that such losses,
damages, liabilities or related expenses are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or willful misconduct
of such Secured Party. The obligations of the Guarantors under this paragraph shall survive the
payment in full of the Guaranteed Obligations and termination of this Guaranty.
16. Guaranty Enforceable by Administrative Agent. This Guaranty may be enforced only by the action
of the Administrative Agent, in each case acting upon the instructions of the Required Lenders (to
the extent required under the Credit Agreement) and no other Secured Party will have any right
individually to seek to enforce or to enforce this Guaranty or to realize upon the security to be
granted by the Loan Documents, it being understood and agreed that such rights and remedies may be
exercised by the Administrative Agent, for the benefit of the Secured Parties, upon the terms of
this Guaranty and the other Loan Documents. It is understood and agreed that the agreement in this
Section 16 is solely for the benefit of the Secured Parties.
17. Obligations of Guarantors Independent. The obligations of each Guarantor hereunder are
independent of the obligations of any other Guarantor, any other guarantor or any Guaranteed
Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor
whether or not action is brought against any other Guarantor, the Borrower or any other Person and
whether or not any other Guarantor, the Borrower or any other Person may be joined in any such
action or actions.
18. Subordination of Indebtedness Held by Guarantors. Any indebtedness of any Loan Party now or
hereafter held by any Guarantor is hereby subordinated to the prior payment in full in immediately
available funds of all the Guaranteed Obligations, and such indebtedness of any Loan Party to any
Guarantor, if the Administrative Agent, after an Event of Default has occurred and is continuing,
so requests, shall be collected, enforced and received (to the extent that such Guarantor receives
any amounts it is entitled to retain) by such Guarantor as trustee for the Secured Parties, shall
be segregated from all other property or funds of such Guarantor and shall be paid over to the
Administrative Agent for the benefit of the Secured Parties for
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application to the Guaranteed
Obligations in accordance with the terms of the Loan Documents or, if the Loan Documents do not
provide for the application of such amount, to be held by the Administrative Agent as collateral
security for any Guaranteed Obligations thereafter existing, but without affecting or impairing in
any manner the liability of such Guarantor under the other provisions of this Guaranty. In the
event that any Guarantor receives any payment of any indebtedness described in the first sentence
of this Section 18 prior to the payment in full in immediately available funds of all Guaranteed
Obligations and during the existence of an Event of Default, and such Guarantor is entitled to
retain such payment, such payment of such indebtedness which has been received by such Guarantor
shall be received by such Guarantor as trustee for the Secured Parties, shall be segregated from
all other property or funds of such Guarantor and shall be paid over to the Administrative Agent
for the benefit of the Secured Parties for application to the Guaranteed Obligations in accordance
with the terms of the Loan Documents or, if the Loan Documents do not provide for the application
of such amount, to be held by the Administrative Agent as collateral security for any Guaranteed
Obligations thereafter existing. Prior to the transfer by any Guarantor of any note or negotiable
instrument evidencing any indebtedness of any Loan Party to such Guarantor, such Guarantor shall
xxxx such note or negotiable instrument with a legend that the same is subject to this
subordination. Without limiting the generality of the foregoing, each Guarantor hereby agrees with
the Secured Parties that it will not exercise any right of subrogation which it may at any time
otherwise have as a result of this Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code or otherwise) until all of the Guaranteed Obligations and any amounts payable under
this Guaranty have been indefeasibly paid and performed in full in immediately available funds, all
Commitments are terminated and all Letters or Credit have been cancelled, have expired or
terminated or have been collateralized to the satisfaction of the Administrative Agent and the L/C
Issuer; provided that if any amount shall be paid to any Guarantor on account of such
subrogation rights prior to such time and such Guarantor is entitled to receive and retain the
same, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith
be paid to the Administrative Agent for the benefit of the Secured Parties to be credited and
applied to the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms
of the Loan Documents or, if the Loan Documents do not provide for the application of such amount,
to be held by the Administrative Agent as collateral security for any Guaranteed Obligations
thereafter existing. Upon the indefeasible payment in full in immediately available funds of all
of the Guaranteed Obligations and any amounts payable under this Guaranty, the termination of all
Commitments and at such time as all Letters or Credit have been cancelled, have expired or
terminated or have been collateralized to the satisfaction of the Administrative Agent and the L/C
Issuer, each Guarantor shall be subrogated to the rights of the Secured Parties to receive payments
or distributions applicable to the Guaranteed Obligations until all Indebtedness of the Borrower
held by such Guarantor shall be paid in full.
19. Additional Guarantors. Any Person that is required to become a party to this Guaranty after
the date hereof pursuant to the Credit Agreement shall become a Guarantor hereunder by executing
and delivering a joinder agreement in the form attached hereto as Annex I.
20. Contribution. At any time a payment in respect of the Guaranteed Obligations is made under
this Guaranty, the right of contribution of each Guarantor against each other Guarantor shall be
determined as provided in the immediately following sentence, with the right
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of contribution of each Guarantor to be revised and restated as of each date on which a payment (a “Relevant
Payment”) is made on the Guaranteed Obligations under this Guaranty. At any time that a
Relevant Payment is made by a Guarantor that results in the aggregate payments made by such
Guarantor in respect of the Guaranteed Obligations to and including the date of the Relevant
Payment exceeding such Guarantor’s Contribution Percentage (as defined below) of the aggregate
payments made by all Guarantors in respect of the Guaranteed Obligations to and including the date
of the Relevant Payment (such excess, the “Aggregate Excess Amount”), each such Guarantor
shall have a right of contribution against each other Guarantor who either has not made any
payments or has made payments in respect of the Guaranteed Obligations to and including the date of
the Relevant Payment in an aggregate amount less than such other Guarantor’s Contribution
Percentage of the aggregate payments made to and including the date of the Relevant Payment by all
Guarantors in respect of the Guaranteed Obligations (the aggregate amount of such deficit, the
“Aggregate Deficit Amount”) in an amount equal to (x) a fraction the numerator of which is
the Aggregate Excess Amount of such Guarantor and the denominator of which is the Aggregate Excess
Amount of all Guarantors multiplied by (y) the Aggregate Deficit Amount of such other Guarantor. A
Guarantor’s right of contribution pursuant to the preceding sentences shall arise at the time of
each computation, subject to adjustment at the time of each computation; provided, that no
Guarantor may take any action to enforce such right until all of the Guaranteed Obligations and any
amounts payable under this Guaranty have been indefeasibly paid and performed in full in
immediately available funds, all Commitments are terminated and all Letters or Credit have been
cancelled, have expired or terminated or have been collateralized to the satisfaction of the
Administrative Agent and the L/C Issuer, it being expressly recognized and agreed by all parties
hereto that any Guarantor’s right of contribution arising pursuant to this Section 20 against any
other Guarantor shall be expressly junior and subordinate to such other Guarantor’s obligations and
liabilities in respect of the Guaranteed Obligations and any other obligations owing under this
Guaranty. As used in this Section 20, (i) each Guarantor’s “Contribution Percentage” shall
mean the percentage obtained by dividing (x) the Adjusted Net Worth (as defined below) of such
Guarantor by (y) the aggregate Adjusted Net Worth of all Guarantors; (ii) the “Adjusted Net
Worth” of each Guarantor shall mean the greater of (x) the Net Worth (as defined below) of such
Guarantor and (y) zero; and (iii) the “Net Worth” of each Guarantor shall mean the amount
by which the fair saleable value of such Guarantor’s assets on the date of any Relevant Payment
exceeds its existing debts and other liabilities (including contingent liabilities, but without
giving effect to any Guaranteed Obligations arising under this Guaranty) on such date. All parties
hereto recognize and agree that, except for any right of contribution arising pursuant to this
Section 20, each Guarantor who makes any payment in respect of the Guaranteed Obligations shall
have no right of contribution or subrogation against any other Guarantor in respect of such payment
until all of the Guaranteed Obligations have been indefeasibly paid and performed in full in cash,
all Commitments are terminated and all Letters or Credit have been cancelled, have expired or
terminated or have been collateralized to the satisfaction of the Administrative Agent and the L/C
Issuer. Each of the Guarantors recognizes and acknowledges that the rights to contribution arising
hereunder shall constitute an asset in favor of the party entitled to such contribution. In this
connection, each Guarantor has the right to waive its contribution right against any Guarantor to
the extent that after giving effect to such waiver such Guarantor would remain solvent, in the
determination of the Administrative Agent or the Required Lenders.
10
21. Counterparts. This Guaranty may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
22. Headings Descriptive. The headings of the several Sections of this Guaranty are inserted for
convenience only and shall not in any way affect the meaning or construction of any provision of
this Guaranty.
23. Governing Law; Assignment; Jurisdiction; Notices. This Guaranty shall be governed by, and
construed in accordance with, the internal laws of the State of New York. This Guaranty shall
(a) bind the Guarantor and its successors and assigns, provided that no Guarantor may assign its
rights or obligations under this Guaranty (and any attempted such assignment without such consent
shall be null and void), and (b) inure to the benefit of the Secured Parties and their respective
successors and assigns and the Lenders may, in accordance with Section 10.06 of the Credit
Agreement and without affecting the obligations of any Guarantor hereunder, assign, sell or grant
participations in the Guaranteed Obligations and this Guaranty, in whole or in part. Each
Guarantor hereby irrevocably (i) submits to the non-exclusive jurisdiction of courts of the State
of New York sitting in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Guaranty, (ii) waives to the fullest extent permitted by law any defense
asserting an inconvenient forum in connection therewith and (iii) waives, to the fullest extent
permitted by applicable law, any objection it may now or hereafter have to the laying of venue of
any action or proceeding or arising out of relating to this Guaranty or any other Loan Document in
any court referred to in clause (i). Each of the parties hereto (x) 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 other manner provided by law, and (y) consents to the service of
process out of any of the aforementioned courts, in the manner provided in Section 10.02 of the
Credit Agreement, to (A) in the case of the Administrative Agent, at the address provided in the
Credit Agreement and (B) in the case of a Guarantor, at its address set forth opposite its
signature page below. All notices and other communications to any Guarantor under this Guaranty
shall be in writing and delivered in the manner set forth in Section 10.02 of the Credit Agreement.
All notices and other communications shall be in writing and addressed to such party at (i) in the
case of any Secured Party, as provided in the Credit Agreement, and (ii) in the case of any
Guarantor, at its address set forth opposite its signature below.
24. WAIVER OF JURY TRIAL; FINAL AGREEMENT. TO THE EXTENT ALLOWED BY APPLICABLE LAW, EACH GUARANTOR
AND THE ADMINISTRATIVE AGENT EACH IRREVOCABLY WAIVES TRIAL BY JURY WITH RESPECT TO ANY ACTION,
CLAIM, SUIT OR PROCEEDING ON, ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE GUARANTEED
OBLIGATIONS. This Guaranty and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and thereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter hereof and thereof.
11
25. DAMAGE WAIVER. To the fullest extent permitted by applicable law, no Guarantor shall assert,
and each Guarantor hereby waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Guaranty, any other Loan Document or
any agreement or instrument contemplated hereby or thereby, the transactions contemplated hereby or
thereby, any Loan or Letter of Credit or the use of proceeds thereof.
12
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed and delivered
as of the date first above written.
Address:
| c/o W.P. Xxxxx & Co. LLC | CORPORATE PROPERTY ASSOCIATES | |||||
| 00 Xxxxxxxxxxx Xxxxx | 16 - GLOBAL INCORPORATED | |||||
Xxx Xxxx, XX 00000 |
||||||
| Fax No.: |
By: | /s/
Xxxxxx X. Xxxxxx |
||||
| Email: |
||||||
| Attention: |
Title: Director | |||||
| CPA 16 LLC By: CORPORATE PROPERTY ASSOCIATES 16 — GLOBAL INCORPORATED, as its managing member |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| AFD (KV) LLC By: STORAGE (DE) QRS 14-23, INC., as its managing member |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| APPLIED FOUR (DE) QRS 14-75, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| APPLIED UTAH (UT) QRS 14-76, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| ASSEMBLY (MD) |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| AUTOSAFE AIRBAG 12 (CA) LP By: INITIATOR (CA) QRS 12-53, INC., as its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| AUTOSAFE AIRBAG 14 (CA) LP By: INITIATOR (CA) QRS 14-62, INC., as its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| BANDWIDTH (UT) QRS 14-58, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| BEVERAGE (GER) QRS 16-141 LLC By: CRATE (GER) QRS 16-142 LLC, as its managing member |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| BP(IL)GP QRS 14-97, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| BP(IL) L.P. By: BP(IL)GP QRS 14-97, INC., as its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| BP(IL) TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| CAN (WI) QRS 12-34, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| CAN-TWO (DE) QRS 12-67, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| COLD (DE) QRS 12-50, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| CPA16 GERMAN (DE) LIMITED PARTNERSHIP By: CPA16 GERMAN GP (DE) QRS 16-155, INC., as its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| CPA16 GERMAN GP (DE) QRS 16-155, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| CRATE (GER) QRS 16-142 LLC By: CPA16 GERMAN (DE) LIMITED PARTNERSHIP, as managing member By: CPA16 GERMAN GP (DE) QRS 16-155, Inc., its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| CTS(IN) QRS 12-63, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| CUPS (DE) LP By: PLATES (DE) QRS 14-63, INC., as its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| DELAWARE FRAME (TX), LP By: FRAME (TX) QRS 14-25, INC., as its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| DEVELOP (TX) LP By: POPCORN (TX) QRS 14-43, INC., as its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| DOUGH (DE) QRS 14-77, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| DOUGH (MD) |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
[Signature Page to Joinder to Guaranty]
| DYNE (DE) LP By: METAL (DE) QRS 14-67 INC., as its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| FABRIC (DE) GP By: LEATHER (DE) QRS 14-72, INC., as its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| FIT(TX)GP QRS 12-60, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| FIT(TX) LP By: FIT(TX)GP QRS 12-60, INC., as its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| FIT(TX) TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| FRAME (TX) QRS 14-25, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| GERB (CT) QRS 14-73, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| HOTEL (MN) QRS 16-84, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| HOTEL OPERATOR (MN) TRS 16-87, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| INITIATOR (CA) QRS 12-53, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| INITIATOR (CA) QRS 14-62, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| JEN (MA) QRS 12-54, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| KSM XXXXXXXXXX (NJ) QRS 16-76, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| LEATHER (DE) QRS 14-72, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| LEI (GER) QRS 16-134 LLC By: POLD (GER) QRS 16-133, LLC By: CPA16 GERMAN (DE) LIMITED PARTNERSHIP, its managing member By: CPA16 GERMAN GP (DE) QRS 16-155, Inc., its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| LINCOLN (DE) LP |
||||
| By: LTI (DE) QRS 14-81, INC., as its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| LPD (CT) QRS 16-132, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| LPORT 2 (WA) QRS 16-147, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| LTI (DE) QRS 14-81, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| LTI TRUST (MD) |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| META (CA) QRS 14-6, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| METAL (DE) QRS 14-67, INC. | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| MORE APPLIED FOUR (DE) LLC By: APPLIED FOUR (DE) QRS 14-75, INC., as its managing member |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| MORE APPLIED UTAH (UT) LLC By: APPLIED UTAH (UT) QRS 14-76, INC., as its managing member |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| NETWORK (UT) LLC By: BANDWIDTH (UT) QRS 14-58, INC., as its managing member |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| PLATES (DE) QRS 14-63, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| POLD (GER) QRS 16-133 LLC By: CPA16 GERMAN (DE) LIMITED PARTNERSHIP, as its managing member By: CPA16 GERMAN GP (DE) QRS 16-155, Inc., as its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| POPCORN (TX) QRS 14-43, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| PRINT (WI) QRS 12-40, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| PWE (MULTI) QRS 14-85, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| SHO LANDLORD (FL) QRS 16-104, INC. | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| STORAGE (DE) QRS 14-23, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| TEL (VA) QRS 12-15, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| URSA (VT) QRS 12-30, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| VINYL (DE) QRS 14-71, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| WINDOUGH (DE) LP By: DOUGH (DE) QRS 14-77, INC., as its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| 620 EIGHTH INVESTOR NYT (NY) QRS 16-150, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| AIR (IL) QRS 14-48, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| ALUM (CANADA) QRS 16-103, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| ALUSA-LP (DE) QRS 16-73, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| AMTOLL (NM) QRS 14-39, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| BB 11 (MD) |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| BB 12 (MD) |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
[Signature Page to Joinder to Guaranty]
| BDF (CT) QRS 16-82, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| XXXX-XX (TX) QRS 14-56, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| BLOCKS (GER) QRS 16-89, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| BM-LP (TX) QRS 14-57, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| BPLAST TWO MEMBER (IN) QRS 16-151, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| BPLAST TWO MANAGER (IN) QRS 16-152, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| XXXXX 16 LENDING CORP. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| CASTING MEMBER (GER) QRS 16-108 LLC By: CPA16 GERMAN (DE) LIMITED PARTNERSHIP, its managing member By: CPA16 GERMAN GP (DE) QRS 16-155, Inc., its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| CC (MULTI) TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| CHASSIS (GER) 16-118, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| COCO-DORM (PA) QRS 16-52, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| COCO-DORM (PA) TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| CONDUCTOR (CA) QRS 14-11, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| CONTAINER FINANCE (FINLAND) QRS 16-62, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| CV GP (DUTCH ) QRS 14-111, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| CV GP (DUTCH ) QRS 16-148, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| XXXXX (PA) QRS 12-10 | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| DES-TECH GP (TN) QRS 16-49, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| DES-TECH LP (TN) QRS 16-50, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| DRILL (DE) TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| DSG GP (PA) QRS 14-103, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| DSG LP (PA) TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
[Signature Page to Joinder to Guaranty]
| ELL (GER) QRS 16-37, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| FINISTAR LP (DE) QRS 16-29, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| FOOD (DE) QRS 12-49, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| FRO 16 (NC) LLC By: CPA 16 MERGER SUB INC., its managing member |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| GREENS SHAREHOLDER (FINLAND) QRS 16-16, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| H2 LENDER (GER) QRS 16-101, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| H2 INVESTOR (GER) QRS 16-100, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| HAMMER (DE) TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| HAMMER (DE) LP QRS 12-65, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| HAMMER (DE) LP QRS 14-100, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| XXXXX 16 LP (DE) QRS 16-47, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| ICE (TX) QRS 12-29, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| IJOBBERS (DE) QRS 14-41, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| KPH (UK) QRS 16-42, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| LABELS-BEN (DE) QRS 16-28, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| LEARN GP (PA) QRS 14-88, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| LONGBOOM (FINLAND) QRS 16-131, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| LONGBOOM FINANCE (FINLAND) QRS 16-130, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| MAGS (UK) QRS 16-2, INC. | |||||
| By: | /s/ Xxxxxx X. Xxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxx | ||||
| Title: | Director | ||||
| MALA-IDS (DE) QRS 16-71, INC. |
|||||
| By: | /s/ Xxxxxx X. Xxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxx | ||||
| Title: | Director | ||||
| MCM MANAGER (TN) QRS 16-115, INC. |
|||||
| By: | /s/ Xxxxxx X. Xxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxx | ||||
| Title: | Director | ||||
| MCM MEMBER (TN) QRS 16-116, INC. |
|||||
| By: | /s/ Xxxxxx X. Xxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxx | ||||
| Title: | Director | ||||
| MEMPHIS HOTEL OWNER (TN) QRS 16-122, INC. |
|||||
| By: | /s/ Xxxxxx X. Xxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxx | ||||
| Title: | Director | ||||
| MK LP BEN (DE) QRS 16-46, INC. |
|||||
| By: | /s/ Xxxxxx X. Xxxxxx | ||||
| Name: Title: |
Xxxxxx X. Xxxxxx Director |
||||
[Signature Page to Joinder to Guaranty]
| MK GP BEN (DE) QRS 16-45, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| MK (NY) TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| MK-LP (DE) QRS 16-44, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| NAIL (DE) TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| NCE (OH) LLC By: PRODUCT (OH) QRS 14-64, INC., its managing member |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| NURSERY (WA) QRS 16-135, INC. | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| PANEL (UK) QRS 14-54, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| PET 14 (MD) |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| PF (GER) QRS 16-96 LLC By: CPA16 GERMAN (DE) LIMITED PARTNERSHIP, it managing member By: CPA16 GERMAN GP (DE) QRS 16-155, Inc., its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| PG (MULTI-16) TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| PG-BEN (CAN) QRS 16-9, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| PG CALGARY (DE) TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| PIPES (UK) QRS 16-59, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| PLANTS SHAREHOLDER (SWEDEN) QRS 16-15, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| PLASTIC II (IL) QRS 16-27, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| PLIERS (DE) TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
[Signature Page to Joinder to Guaranty]
| POHJ MANAGING MEMBER (FINLAND) QRS 16-20, INC. | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| POLY LP (MD) TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| PORTS (FINLAND) QRS 16-63, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| PRODUCT (OH) QRS 14-64, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| PUMP (MO) QRS 14-52, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| RI (CA) QRS 12-59, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
| RRC (TX) TRUST | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| SEALTEX (DE) QRS 16-69, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| SFCO (GA) QRS 16-127, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| STOR-MOVE UH 16 BUSINESS TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
| SUN (SC) QRS 12-68, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| TEACH (PA) |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
[Signature Page to Joinder to Guaranty]
| TECH (GER) QRS 16-144, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| TEETH FINANCE (FINLAND) QRS 16-106, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| TEETH MEMBER (FINLAND) QRS 16-107, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| TITO (FI) QRS 16-6, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| TONER (DE) QRS 14-96, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| TOWER 14 (DE) |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Trustee | |||
[Signature Page to Joinder to Guaranty]
| UTI-SAC (CA) QRS 16-34, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| VALVES MEMBER GERMANY (DE) QRS 16-65 LLC By: CPA16 GERMAN (DE) LIMITED PARTNERSHIP, as its managing member By: CPA16 GERMAN GP (DE) QRS 16-155, Inc., its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| WORK (GER) QRS 16-117, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Joinder to Guaranty]
Accepted and Agreed to:
| BANK OF AMERICA, N.A., | ||||
| as Administrative Agent | ||||
By: |
/s/ Xxxx Xxxxxxx | |||
Name: |
Xxxx Xxxxxxx | |||
Title: |
Senior Vice President | |||
[Signature Page to Joinder to Guaranty]
