LIMITED GUARANTY AGREEMENT
This LIMITED GUARANTY AGREEMENT (this "Guaranty") is made as of December
18, 1996, by SONESTA INTERNATIONAL HOTELS CORPORATION., a New York corporation
("Guarantor"), in favor of SUNAMERICA LIFE INSURANCE COMPANY, an Arizona
corporation ("Lender").
1. Loan and Note. This Guaranty is executed in connection with a
$22,880,000.00 loan ("Loan") made by Lender to Xxxxx X. Xxxxxxxxx, Xxxxx X.
Xxxxxxxxx, and Boy X.X. xxx Xxxx, trustees of the Charterhouse of Cambridge
Trust, and not individually, under a Declaration of Trust dated December 27,
1963 and recorded at Middlesex South Deeds Book 11160, Page 340, as amended by
Amendment of Declaration of Trust dated July 8, 1966 and recorded at Middlesex
South Deeds Book 11160, Page 359 ("Charterhouse"), and Sonesta of Massachusetts,
Inc., a Massachusetts corporation ("Sonesta," and, together with Charterhouse,
collectively, "Borrower"). The Loan is (a) evidenced by a Promissory Note of
even date herewith in the original principal amount of the Loan ("Note"), and
(b) secured by, among other things, a Mortgage, Security Agreement, Fixture
Filing, Financing Statement and Assignment of Leases and Rents of even date
herewith granted by Borrower for the benefit of Lender ("Mortgage," and,
together with the Note and all other documents evidencing and/or securing the
Loan, "Loan Documents") covering certain real property commonly known as the
Royal Sonesta Hotel, Cambridge, Massachusetts and more particularly described in
the Mortgage. All capitalized terms used herein without definition shall have
the meanings given to such terms in the Mortgage.
2. Purpose and Consideration. The execution and delivery of this Guaranty
by Guarantor is a condition to Lender's willingness to make the Loan to
Borrower, is made in order to induce Lender to make the Loan, and is made in
recognition that Lender will be relying upon this Guaranty in making the Loan
and performing any other obligations it may have under the Loan Documents.
Guarantor is the sole beneficiary of Charterhouse and the sole shareholder of
Sonesta, and, accordingly, acknowledges that Guarantor will receive material
direct and indirect benefit from Lender making the Loan to Borrower.
3. Guaranty. Guarantor hereby guarantees absolutely, primarily, and
irrevocably, payment and performance of all
obligations of Borrower under the Loan Documents for which Borrower incurs
personal liability to Lender under the exceptions to the non-recourse provisions
described in Section 9.4 of the Mortgage and Section 18 of the Note
(collectively, the "Obligations").
4. Guaranty is Independent and Absolute. The obligations of Guarantor
hereunder are independent of the obligations of Borrower and of any other person
who may become liable with respect to the Obligations. Guarantor is jointly and
severally liable with Borrower and with any other guarantor for the full and
timely payment and performance of all of the Obligations. Guarantor expressly
agrees that a separate action or actions may be brought and prosecuted against
Guarantor (or any other guarantor), whether or not any action is brought against
Borrower, any other guarantor or any other person for any Obligations guaranteed
hereby and whether or not Borrower, any other guarantor or any other persons are
joined in any action against Guarantor. Guarantor further agrees that Lender
shall have no obligation to proceed against any security for the Obligations
prior to enforcing this Guaranty against Guarantor, and that Lender may pursue
or omit to pursue any and all rights and remedies Lender has against any person
or with respect to any security in any order or simultaneously or in any other
manner. All rights of Lender and all obligations of Guarantor hereunder shall be
absolute and unconditional irrespective of (a) any lack of validity or
enforceability of the Note or any other Loan Document, and (b) any other
circumstances which might otherwise constitute a defense available to, or a
discharge of Borrower in respect of, the Obligations.
5. Authorizations to Lender. Guarantor authorizes Lender, without notice or
demand and without affecting Guarantor's liability hereunder, from time to time
(a) to renew, extend, accelerate or otherwise change the time for payment of,
change, amend, alter, cancel, compromise or otherwise modify the terms of the
Note, including increasing the rate or rates of interest thereunder agreed to by
Borrower, and to grant any indulgences, forbearances, or extensions of time; (b)
to renew, extend, change, amend, alter, cancel, compromise or otherwise modify
any of the terms, covenants, conditions or provisions of any of the Loan
Documents or any of the Obligations; (c) to apply any security and direct the
order or manner of sale thereof as Lender, in Lender's discretion, may
determine; (d) to proceed against Borrower,
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Guarantor or any other guarantor with respect to any or all of the Obligations
without first foreclosing against any security therefor; (e) to exchange,
release, surrender, impair or otherwise deal in any manner with, or waive,
release or subordinate any security interest in, any security for the
Obligations; (f) to release or substitute Borrower, any other guarantors,
endorsers, or other parties who may be or become liable with respect to the
Obligations, without any release being deemed made of Guarantor or any other
such person; and (g) to accept a conveyance or transfer to Lender of all or any
part of any security in partial satisfaction of the Obligations, or any of them,
without releasing Borrower, Guarantor, or any other guarantor, endorser or other
party who may be or become liable with respect to the Obligations, from any
liability for the balance of the Obligations.
6. Application of Payments Received by Lender. Any sums of money Lender
receives from or for the account of Borrower may be applied by Lender to reduce
any of the Obligations or any other liability of Borrower to Lender, as Lender
in Lender's discretion deems appropriate.
7. Waivers by Guarantor. In addition to all waivers expressed in any of the
Loan Documents, all of which are incorporated herein by Guarantor, Guarantor
hereby waives (a) presentment, demand, protest and notice of protest, notice of
dishonor and of non-payment, notice of acceptance of this Guaranty, and
diligence in collection; (b) notice of the existence, creation, or incurring of
any new or additional Obligations under or pursuant to any of the Loan
Documents; (c) any right to require Lender to proceed against, give notice to,
or make demand upon Borrower; (d) any right to require Lender to proceed against
or exhaust any security or to proceed against or exhaust any security in any
particular order; (e) any right to require Lender to pursue any remedy of
Lender; (f) any right to direct the application of any security held by Lender;
(g) any right of subrogation or to enforce any remedy which Lender may have
against Borrower and any right to participate in any security now or hereafter
held by Lender and any right to reimbursement from the Borrower for amounts paid
to Lender by Guarantor; (h) benefits, if any, of Guarantor under any
anti-deficiency statutes or single-action legislation; (i) any defense arising
out of any disability or other defense of Borrower, including bankruptcy,
dissolution, liquidation, cessation, impairment, modification, or limitation,
from any cause, of any liability of
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Borrower, or of any remedy for the enforcement of such liability; (j) any
statute of limitations affecting the liability of Guarantor hereunder; (k) any
right to plead or assert any election of remedies by Lender; and (l) any other
defenses available to a surety under applicable law.
8. Subordination by Guarantor. Guarantor hereby agrees that any
indebtedness of Borrower to Guarantor, whether now existing or hereafter
created, shall be and is hereby subordinated to the indebtedness of Borrower to
Lender under the Loan Documents. At any time during which a Default or Event of
Default exists, Guarantor shall not accept or seek to receive any amounts from
Borrower on account of any indebtedness of Borrower to Guarantor.
9. Bankruptcy Reimbursements. Guarantor hereby agrees that if any amounts
paid to Lender by Borrower or any other party liable for payment and
satisfaction of the Obligations (other than Guarantor) are recovered from Lender
in any bankruptcy proceeding, Guarantor shall reimburse Lender immediately on
demand for all amounts so recovered from Lender (together with interest thereon
at the default rate set forth in the Note from the date ten (10) days following
demand therefor until paid), and, for this purpose, this Guaranty shall survive
repayment of the Loan. Without limiting the foregoing, Guarantor shall pay all
costs and expenses incurred by Lender in connection with any bankruptcy
proceeding of Borrower, Guarantor or any other party liable for payment and
satisfaction of the Obligations, including attorneys' fees and expenses.
10. Jurisdiction and Venue. Guarantor hereby submits itself to the
jurisdiction and venue of any state court located in Middlesex County,
Massachusetts, or federal court located in the Commonwealth of Massachusetts in
connection with any action or proceeding brought for enforcement of Guarantor's
obligations hereunder, and hereby waives any and all personal or other rights
under the law of any other country or state to object to jurisdiction within
such locations, for purposes of litigation to enforce such obligations.
Guarantor agrees that service of process upon Guarantor shall be complete upon
delivery thereof in any manner permitted by law.
11. Financial Statements. In addition to those obligations set forth in any
of the Loan Documents, for so long as
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any of the Obligations remain unsatisfied, within one hundred twenty (120) days
after the end of each calendar year, Guarantor shall furnish to Lender such
financial statements of Guarantor for such calendar year as Lender may request,
in such detail as Lender may request, certified by Guarantor as being true and
correct in all respects. Guarantor shall also furnish to Lender copies of his
federal and state income tax returns for the preceding year within ten (10) days
of the filing thereof with the appropriate governmental agencies.
12. Assignability. This Guaranty shall be binding upon Guarantor and
Guarantor's heirs, representatives, successors, and assigns and shall inure to
the benefit of Lender and Lender's successors and assigns. This Guaranty shall
follow the Note and other Loan Documents which are for the benefit of Lender,
and, in the event the Note and other Loan Documents are negotiated, sold,
transferred, assigned, or conveyed by Lender in whole or in part, this Guaranty
shall be deemed to have been sold, transferred, assigned, or conveyed by Lender
to the holder or holders of the Note and other Loan Documents, with respect to
the Obligations contained therein, and such holder or holders may enforce this
Guaranty as if such holder or holders had been originally named as Lender
hereunder.
13. Payment of Costs of Enforcement. In the event any action or proceeding
is brought to enforce this Guaranty, Guarantor shall pay all costs and expenses
of Lender in connection with such action or proceeding, including, without
limitation, all reasonable attorneys' fees incurred by Lender.
14. Notices. Any notice required or permitted to be given by Guarantor or
Lender under this Guaranty shall be in writing and will be deemed given (a) upon
personal delivery, (b) on the first business day after receipted delivery to a
courier service which guarantees next-business day delivery, or (c) on the fifth
(5th) business day after mailing, by registered or certified United States mail,
postage prepaid, in any case to the appropriate party at its address set forth
below:
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If to Guarantor:
Sonesta International Hotels Corporation
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Office of the Treasurer
with a copy to:
Xxxxx & Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
If to Lender:
SunAmerica Life Insurance Company
0 XxxXxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Director-Mortgage Lending and Real Estate
Either party may change such party's address for notices or copies of notices by
giving notice to the other party in accordance with this Section 14.
15. Reinstatement of Obligations. If at any time all or any part of any
payment made by Guarantor or received by Lender from Guarantor under or with
respect to this Guaranty is or must be rescinded or returned for any reason
whatsoever (including, but not limited to, the insolvency, bankruptcy or
reorganization of any Guarantor), then the obligations of Guarantor hereunder
shall, to the extent of the payment rescinded or returned, and to the extent
permitted by law, be deemed to have continued in existence, notwithstanding such
previous payment made by Guarantor, or receipt of payment by Lender, and the
obligations of Guarantor hereunder shall continue to be effective or be
reinstated, as the case may be, as to such payment, all as though such previous
payment by Guarantor had never been made.
16. Severability of Provisions. If any provision hereof or of any other
Loan Document shall, for any reason and to any extent, be invalid or
unenforceable, then the remainder of the
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document in which such provision is set forth, the application of the provision
to other persons, entities or circumstances, and any other document referred to
herein shall not be affected thereby but instead shall be enforceable to the
maximum extent permitted by law.
17. Waiver. Neither the failure of Lender to exercise any right or power
given hereunder or to insist upon strict compliance by Borrower, Guarantor, any
other guarantor, or any other person with any of its obligations set forth
herein or in any of the Loan Documents, nor any practice of Borrower or
Guarantor at variance with the terms hereof or of any Loan Documents, shall
constitute a waiver of Lender's right to demand strict compliance with the terms
and provisions of this Guaranty.
18. Certain Waivers. GUARANTOR, BY SIGNING THIS GUARANTY, AND LENDER, BY
ACCEPTING IT, EACH KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
PROCEEDING OR COUNTERCLAIM BASED ON THIS GUARANTY, OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS GUARANTY OR ANY LOAN DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY
HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER AND GUARANTOR
ENTERING INTO THE SUBJECT LOAN TRANSACTION.
19. Applicable Law. This Guaranty and the rights and obligations of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and
year first above written.
GUARANTOR:
SONESTA INTERNATIONAL HOTELS
CORPORATION, a New York
corporation
By:/s/
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Xxxxx X. Xxxxxxxxx
Vice President
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XXXXXXXXXXXX XX XXXXXXXXXXXXX
XXXXX XX XXXXXXXXXXXXX )
) ss. December ____, 1996
COUNTY OF SUFFOLK )
Then personally appeared the above-named Xxxxx X. Xxxxxxxxx, Vice President
of Sonesta International Hotels Corporation, a New York corporation, and
acknowledged the foregoing instrument to be the free act and deed of Xxxxx X.
Xxxxxxxxx and the corporation before me.
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Notary Public
My commission expires _____________
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