LIMITED GUARANTY
EXHIBIT
10.29
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To:
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RBS
Citizens, National Association (“Lender”), 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000:
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1. Guaranty of Payment and Performance of Obligations. In
consideration of the Lender extending credit or otherwise making financial
facilities or accommodations to XXXXX X. XXXXXXXXX and BOY X.X. XXX XXXX, AS
TRUSTEES OF THE CHARTERHOUSE OF CAMBRIDGE TRUST, under Declaration of Trust
dated December 27, 1963 and recorded in the Middlesex (South) Registry of
Deeds in Book 11160, Page 340, as amended by Amendment of Declaration of Trust
dated July 8, 1966 and recorded in said Registry in Book 11160, Page 359 and
SONESTA OF MASSACHUSETTS, INCORPORATED, a Massachusetts corporation, both having
an address c/o Sonesta International Hotels Corporation, 000 Xxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (jointly and severally, the “Borrower”), the
undersigned SONESTA INTERNATIONAL HOTELS CORPORATION, a New York corporation
having a mailing address of 000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the “Guarantor”), subject to the provisions of Section
20 below, hereby unconditionally guarantees to the Lender that the
Borrower will duly and punctually pay or perform, at the place specified
therefor, or if no place is specified, at the Lender’s head office, (i) all of
the obligations to be paid or performed by the Borrower to the Lender under the
Promissory Note dated February 12, 2010, as amended executed by the Borrower in
the original principal amount of $32,000,000.00 (together with any extensions,
modifications, renewals, restatements and substitutions thereof the "Note"),
(ii) all of the obligations to be paid or performed by the Borrower pursuant to
a certain Loan Agreement (as may be amended, the “Loan Agreement”) dated
February 12, 2010 between the Lender and the Borrower, any Hedging Contracts,
and all other loan documents executed in connection therewith (the “Loan
Documents”), and (iii) without limitation of the foregoing, all reasonable fees,
costs and expenses incurred by the Lender in attempting to collect or enforce
any of the foregoing, accrued in each case to the date of payment hereunder
(collectively the “Obligations” and individually an
“Obligation”). This Guaranty is an absolute, unconditional and
continuing guaranty of the full and punctual payment and performance by the
Borrower of the Obligations and not of their collectibility only and is in no
way conditioned upon any requirement that the Lender first attempt to collect
any of the Obligations from the Borrower or resort to any security or other
means of obtaining payment of any of the Obligations which the Lender now has or
may acquire after the date hereof or upon any other contingency
whatsoever. Upon any Event of Default (as defined in the Loan
Documents) not cured within applicable cure periods, if any, by the Borrower in
the full and punctual payment and performance of the Obligations, the
liabilities and obligations of the Guarantor hereunder shall, at the option of
the Lender, become forthwith due and payable to the Lender without demand or
notice of any nature, all of which are expressly waived by the
Guarantor. Payments by the Guarantor hereunder may be required by the
Lender on any number of occasions.
2. Guarantor’s Further Agreements to Pay. The
Guarantor further agrees, as the principal obligor and not as a guarantor only,
to pay to the Lender forthwith upon demand, in funds immediately available to
the Lender all reasonable costs and expenses (including court costs and
reasonable legal expenses) incurred or expended by the Lender in connection with
this Guaranty and the enforcement hereof, together with interest on such costs
and expenses from the time such amounts become due until payment at the per
annum rate which is the Default Rate as provided for in the Note; provided that
if such interest exceeds the maximum amount permitted to be paid under
applicable law, then such interest shall be reduced to such maximum permitted
amount.
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3. Payments. The
Guarantor covenants and agrees that the Obligations will be paid strictly in
accordance with their respective terms regardless of any law, regulation or
order now or hereinafter in effect in any jurisdiction affecting any of such
terms or the rights of the Lender with respect thereto. Without
limiting the generality of the foregoing, the Guarantor’s obligations hereunder
with respect to any Obligation shall not be discharged by a payment in a
currency other than the currency of the United States of America.
4. Taxes. All
payments hereunder shall be made without any counterclaim or set-off, free and
clear of, and without reduction by reason of, any taxes, levies, imposts,
charges and withholdings, restrictions or conditions of any nature (“Taxes”),
which are now or may hereafter be imposed, levied or assessed by any country,
political subdivision or taxing authority on payments hereunder, all of which
(other than taxes charged upon or by reference to the overall net income,
profits or gains of the Lender) will be for the account of and paid by the
Guarantor. If, for any reason, any such reduction is made or any
Taxes are paid by the Lender, Guarantor will pay to the Lender such additional
amounts as may be necessary to ensure that the Lender receives the same net
amount which it would have received had no reduction been made or Taxes
paid.
5. Consent to Jurisdiction; Waivers. The
Guarantor hereby absolutely and irrevocably consents and submits to the
non-exclusive personal jurisdiction of the Courts of The Commonwealth of
Massachusetts and of any Federal Court located in the said Commonwealth in
connection with any actions or proceedings brought against the Guarantor by the
Lender arising out of or relating to this Guaranty. In any such
action or proceedings, the Guarantor hereby absolutely and irrevocably waives
any and all rights to trial by jury and personal service of any summons,
complaint, declaration or other process and hereby absolutely and irrevocably
agrees that the service thereof may be made by certified or registered mail
directed to the Guarantor.
6. Primary Liability of Guarantor. The
Lender has and shall have the absolute right to enforce the liability of the
Guarantor hereunder without resort to any other right or remedy including any
right or remedy under any other guaranty, if applicable.
7. Effectiveness. The
obligations of the Guarantor under this Guaranty shall continue in full force
and effect and shall remain in operation until all of the Obligations shall have
been paid in full or otherwise be fully satisfied, and continue to be effective
or be reinstated, as the case may be, if at any time payment or other
satisfaction of any of the Obligations is required by law to be rescinded or
otherwise restored or returned upon the bankruptcy, insolvency, or
reorganization of the Borrower, as though such payment had not been made or
other satisfaction occurred. No invalidity, irregularity or
unenforceability by reason of applicable bankruptcy laws, or any other similar
law, or any law or order of any government or agency thereof purporting to
reduce, amend or otherwise affect, the Obligations, shall impair, affect, be a
defense to or claim against the obligations of the Guarantor under this
Guaranty.
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8. Freedom of Lender to Deal with Borrower and
Other Parties. The Lender shall be at liberty, without
giving notice to or obtaining the assent of the Guarantor and without relieving
the Guarantor of any liability hereunder, to deal with the Borrower and with
each other party who now is or after the date hereof becomes liable in any
manner for any of the Obligations, in such manner as the Lender in its sole
discretion deems fit, subject to the terms of any applicable agreements between
such parties, and to this end the Guarantor gives to the Lender full authority
to do any or all of the following things: (a) extend credit, make
loans and afford other financial accommodations to the Borrower at such times,
in such amounts and on such terms as the Lender may approve, (b) vary the terms
and grant extensions of any present or future indebtedness or obligation to the
Lender of the Borrower or of any such other party, (c) grant time, waivers and
other indulgences in respect thereto, (d) vary, exchange, release or discharge,
wholly or partially, or delay in or abstain from perfecting and enforcing any
security or guaranty or other means of obtaining payment of any of the
Obligations which the Lender now has or may acquire after the date hereof, (e)
accept partial payments from the Borrower or any such other party, (f) release
or discharge, wholly or partially, any endorser or guarantor, and (g) compromise
or make any settlement or other arrangement with the Borrower or any such other
party.
9. Unenforceability of Obligations Against Borrower;
Invalidity
of Security or Other Guaranties. If for
any reason the Borrower has no legal existence or is under no legal obligation
to discharge any of the Obligations undertaken or purported to be undertaken by
it or on its behalf, or if any of the moneys included in the Obligations have
become irrecoverable from the Borrower by operation of law or for any other
reason, this Guaranty shall nevertheless be binding on the Guarantor to the same
extent as if the Guarantor at all times had been the principal debtor on all
such Obligations. This Guaranty shall be in addition to any other
guaranty or other security for the Obligations, and it shall not be prejudiced
or rendered unenforceable by the invalidity of any such other guaranty or
security.
10. Waivers by Guarantor. The
Guarantor waives: notice of acceptance hereof, notice of any action
taken or omitted by the Lender in reliance hereon, and any requirement that the
Lender be diligent or prompt in making demands hereunder, giving notice of any
default by the Borrower or asserting any other rights of the Lender
hereunder. The Guarantor also irrevocably waives, to the fullest
extent permitted by law, all defenses that at any time may be available in
respect of the Guarantor’s obligations hereunder by virtue of any homestead
exemption, valuation, stay, moratorium law or other similar law now or hereafter
in effect. Further, Guarantor hereby irrevocably and unconditionally
waives any and all right, if any, to claim or recover against Lender, in
connection with the loan evidenced by the Note and this Guaranty, any special,
exemplary, punitive or consequential damages or any damages other than actual
damages.
11. Waiver of Subrogation. Notwithstanding
any other provision to the contrary contained herein or provided by applicable
law, at any time when an Event of Default has occurred and is continuing under
any of the Loan Documents, the Guarantor (i) shall not assert any claim against
the Borrower on account of payments made under this Guaranty, including, without
limitation, any and all rights of or claim for subrogation, contribution,
reimbursement, exoneration and indemnity, (ii) shall waive any benefit of and
any right to participate in any collateral which may be held by the Lender or
any affiliate of the Lender, (iii) will not claim any set-off or counterclaim
against the Borrower in respect of any liability it may have to the Borrower,
(iv) agrees that any and all indebtedness now or hereafter owed by Borrower to
Guarantor shall be subordinate to all indebtedness of Borrower to Lender, and
(v) Guarantor shall not demand or accept any payment from Borrower on account of
any indebtedness of Borrower to Guarantor while this Guaranty is in
effect.
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12. Bankruptcy or
Insolvency. In the event there shall be pending any bankruptcy
or insolvency case or proceeding with respect to Guarantor under federal
bankruptcy law or any other applicable law or in connection with the insolvency
of Guarantor, or if a liquidator, receiver, or trustee shall have been appointed
for Guarantor or Guarantor’s properties or assets, Lender may file such proofs
of claim and other papers or documents as may be necessary or advisable in order
to have the claims of Lender allowed in any proceedings relative to Guarantor,
or any of Guarantor’s properties or assets, and, irrespective of whether the
indebtedness or other obligations of Borrower guaranteed hereby shall then be
due and payable, by declaration or otherwise, Lender shall be entitled and
empowered to file and prove a claim for the whole amount of any sums or sums
owing with respect to the indebtedness or other obligations of Borrower
guaranteed hereby, and to collect and receive any moneys or other property
payable or deliverable on any such claim.
13. Financial Statements and Other Information. Guarantor
hereby represents and warrants to Lender that all financial statements
heretofore delivered by Guarantor to Lender are true and correct in all material
respects, have been prepared in accordance with generally accepted accounting
principles consistently applied (“GAAP”), and fairly present the financial
condition of Guarantor as of the date thereof; that no material adverse change
has occurred in the assets, or financial condition of Guarantor reflected
therein since the date thereof; and that Guarantor has no liabilities or known
contingent liabilities required to be disclosed on Guarantor’s financial
statements under GAAP which are not reflected in Guarantor’s financial
statements submitted to Lender or referred to in the notes thereto other than
Guarantor’s obligations under this Guaranty. Guarantor hereby agrees
that until all indebtedness guaranteed hereby has been completely repaid and all
obligations and undertakings of Borrower related to the Obligations have been
completely performed, Guarantor will deliver to Lender the financial statements
required in the Loan Agreement.
14. Rights of
Set-Off. Regardless of the adequacy of any collateral or other
means of obtaining repayment of such obligations, during the continuance of any
event of default under the Note or any of the documents executed in connection
therewith, Lender may, upon an Event of Default, and without notice to
Guarantor, set-off and apply the whole or any portion or portions of any or all
such deposits and other sums against amounts payable under this Guaranty,
whether or not any other person or persons could also withdraw money
therefrom. Any security now or hereafter held by or for Guarantor and
provided by Borrower, or by anyone on Borrower’s behalf, in respect of
liabilities of Guarantor hereunder shall be held in trust for Lender as security
for the liabilities of Guarantor hereunder.
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15. Demands and Notices. Any
demand on or notice given pursuant to this Guaranty shall be in writing and
shall be deemed to have been properly given or served by personal delivery or by
sending the same by overnight courier, by depositing the same in the United
States mail, postage paid and registered or certified, return receipt requested,
or by facsimile, and addressed as follows:
If to the
Lender:
RBS
Citizens, National Association
00 Xxxxx
Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention: Ms.
Xxxx Xxxxxx
Senior
Vice President
Facsimile: (000)
000-0000
with a copy
to:
Goulston
& Storrs, P.C.
000
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention: Xxxx
X. Xxxxx, Esq.
Facsimile:
(000) 000-0000
If to the
Guarantor:
000
Xxxxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attentions: Office
of the Treasurer
with a copy
to:
Xxxxx
& Xxxxxxxx LLP
000
Xxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention: Xxxxxx
Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
Each notice given hereunder shall be
effective upon being personally delivered, receipt of facsimile transmission or
upon being sent by overnight courier or upon being deposited in the United
States mail as aforesaid. However, (i) the time period in which a
response to such Notice must be given or any action taken with respect thereto
(if any), and (ii) the commencement of a default period, to the extent notice is
required hereunder, shall commence to run from the date of receipt if personally
delivered, sent by facsimile transmission, or sent by overnight courier, or if
so deposited in the United States Mail, the earlier of three (3) Business Days
following such deposit or the date of receipt as disclosed on the return
receipt. Rejection or other refusal to accept or the inability to
deliver because of changed address for which no Notice was given shall be deemed
to be receipt of the Notice sent. By giving at least thirty (30)
days’ prior Notice thereof, the Borrower or the Lender shall have the right from
time to time to change their respective addresses and each shall have the right
to specify as its address any other address within the United States of
America.
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16. Amendments, Waivers, Etc. No
provision of this Guaranty can be changed, waived, discharged or terminated
except by an instrument in writing signed by the Lender and the Guarantor
expressly referring to the provision of this Guaranty to which such instrument
relates; and no such waiver shall extend to, affect or impair any right with
respect to any Obligation which is not expressly dealt with
therein. No course of dealing or delay or omission on the part of the
Lender in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto.
17. Application of Funds. All
payments by the undersigned pursuant to this Guaranty, after the payment of all
expenses as provided in this Guaranty and the Obligations, shall be applied to
the payment of the Obligations until the same are paid in full.
18. Further Assurances. The
Guarantor at its sole cost and expense also agrees to do all such things and
execute, acknowledge and deliver all such documents and instruments as the
Lender from time to time may reasonably request in order to give full effect to
this Guaranty and to perfect and preserve the rights and powers of the Lender
hereunder.
19. Miscellaneous Provisions. This
Guaranty is intended to take effect as a sealed instrument to be governed by and
construed in accordance with the laws of The Commonwealth of Massachusetts
(notwithstanding any rules regarding conflicts of laws to the contrary) and
shall inure to the benefit of the Lender and its successors in title and
assigns, and shall be binding on the Guarantor and the Guarantor’s successors in
title and assigns. The rights and remedies herein provided are
cumulative and not exclusive of any remedies provided by law or any other
agreement. The invalidity or unenforceability of any one or more
sections of this Guaranty shall not affect the validity or enforceability of its
remaining provisions. Captions are for ease of reference only and
shall not affect the meaning of the relevant provisions. The meanings
of all defined terms used in this Guaranty shall be equally applicable to the
singular and plural forms of the terms defined.
20. Limitation. Notwithstanding
any contrary term or provision contained in this Guaranty, the liability of the
Guarantor for the payment and performance of the Obligations shall not exceed
Five Million Dollars ($5,000,000.00) in the aggregate.
[Remainder
of Page Intentionally Blank]
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IN WITNESS WHEREOF, the Guarantor has
executed this Guaranty as of the 12th day of February, 2010.
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WITNESS SONESTA
INTERNATIONAL HOTELS CORPORATION
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/s/ Xxxxxx X.
Xxxxxxx By: /s/ Xxxxx X.
Xxxxxxxxx
Name: Xxxxx
X. Xxxxxxxxx
Its Executive
Chairman
Hereunto
duly authorized
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