Exhibit 10-21
GUARANTY OF COMPLETION
THIS GUARANTY, dated December 31, 1997, is given by Essex Partners Inc., a
New York corporation, having an office at 000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxx
Xxxx 00000, (the "GUARANTOR"), to KEYBANK NATIONAL ASSOCIATION, a national
banking association having an office at 00 Xxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx
00000 ("LENDER").
RECITALS:
WHEREAS:
A. Erie Hotel LLC, a New York limited liability company (the "BORROWER") is
the owner of certain real property located at Old Xxxxxx Road at I-90, Township
of Summit, Erie County, Pennsylvania, as more particularly described in the
Mortgage (hereinafter defined) (the "PROPERTY");
B. Borrower intends to construct and install certain improvements (the
"IMPROVEMENTS") on the Property;
C. Borrower has asked Lender to provide financing for a portion of the cost
of constructing and installing the Improvements by making a loan to Borrower
pursuant to, and subject to the conditions set forth in, that certain Building
Loan Agreement between Borrower and Lender dated of even date herewith (the
"BUILDING LOAN AGREEMENT") and evidenced by a certain Promissory Note of
Borrower to Lender (the "NOTE") in the principal amount of $4,700,000.00 dated
of even date herewith (the "BUILDING LOAN");
D. The Building Loan will be or is secured by a certain Open-End Mortgage
And Security Agreement given by the Borrower to the Lender covering the Property
and recorded in the Erie County Clerk's Office (the "BUILDING LOAN MORTGAGE");
E. The Note, the Building Loan Agreement and the Building Loan Mortgage are
hereinafter collectively referred to as the "BUILDING- LOAN DOCUMENTS;"
F. Lender is unwilling to make the Building Loan to Borrower unless
Guarantor executes a guaranty of completion in the form hereof, and
G. Guarantor acknowledges that the malting of the Building Loan to Borrower
will result in substantial economic benefits to it.
NOW, THEREFORE, in consideration of the premises and to induce Lender to
make the Building Loan to Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Guarantor hereby covenants and agrees with Lender as follows:
1. All capitalized terms used herein and not otherwise defined shall have
the same meanings assigned thereto in the Building Loan Agreement.
2. Guarantor acknowledges receipt of a set of the Plans and a copy of the
Architect's Agreement, the Contract and the Building Loan Agreement. Guarantor
agrees that the Plans may be changed from time to time, and that the Architect's
Agreement, the Contract and the Building Loan Agreement may be modified or
amended from time to time without in any manner affecting this Guaranty or
releasing the Guarantor therefrom and without obtaining the consent of the
Guarantor thereto.
3. Guarantor guarantees to Lender the Lien Free Completion of the
Improvements (as hereinafter defined) and the prompt performance of all
obligations of the Borrower under the Building Loan Mortgage and the Building
Loan Agreement. The term "LIEN FREE COMPLETION OF THE IMPROVEMENTS" shall mean
completion of the construction and equipping of the Improvements in a good and
workmanlike manner and in full compliance with all requirements of the Township
of Summit, Erie County, Pennsylvania and all other applicable Governmental
Authorities and ready for occupancy on or before the Completion Date,
substantially in accordance with the Plans and the terms and conditions of the
Contract and in compliance with the terms of the Building Loan Agreement, free
and clear of all mechanic's liens and any other liens, security interests,
encumbrances or exceptions to title, except for Permitted Exceptions, and the
issuance and delivery to the Lender of all evidence of Completion on or before
the Maturity Date. The Guarantor's Obligations under this Section 3, shall be
conditioned upon the Lender's disbursement of the proceeds of the Building Loan
to the Borrower or the Guarantor.
4. In the event that Borrower fails to pay when due any sums due to any
person, firm or corporation for work, labor or services performed or materials,
supplies or equipment furnished in connection with the construction or equipping
of the Improvements, Guarantor agrees to pay the same.
5. In the event that Borrower fails to fully pay or to bond and discharge
of record any mechanic's lien within thirty (30) days after the recording or
filing thereof, Guarantor agrees to do so.
6. In the event that the Guarantor shall advance or become obligated to pay
any sums toward the construction or equipping of the Improvements or in the
event that for any reason Borrower shall hereafter become indebted to the
Guarantor, the amount of such advance, payment or indebtedness shall at all
times be subject and subordinate in lien and payment to all amounts due and
owing to Lender under the Note or the Building Loan Mortgage. Nothing contained
herein is intended nor shall be construed to give Guarantor any right of
subrogation in or under the Note or the Building Loan Mortgage, or any right to
participate in any way therein, notwithstanding any payments made by it toward
the construction or equipping of the Improvements or any payments made by it
under this Guaranty, all such rights of subrogation and participation being
hereby expressly and irrevocably waived and released.
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7. This Guaranty shall remain in full force and effect notwithstanding:
(a) the invalidity or unenforceability of any of the terms or provisions
of the Building Loan Documents, the Architect's Agreement or the Contract;
(b) the release or discharge of Borrower, the Architect, the Contractor,
or any guarantor in any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, dissolution, liquidation or other similar proceeding;
or
(c) any other circumstances which might otherwise constitute a legal or
equitable release or discharge of the Borrower under any of the Building Loan
Documents, the Architect under the Architect's Agreement or the Contractor under
the Contract.
8. Guarantor hereby waives notice of acceptance of this Guaranty by Lender
and of any action by Lender in reliance hereon.
9. Any notice, demand or request by Lender to Guarantor hereunder shall be
in writing and shall be deemed to have been duly given or made when delivered
personally to Guarantor or when mailed, postage prepaid, by registered or
certified mail to Guarantor at their address set forth above or at such other
addresses as Guarantor may designate by written notice to Lender.
10. This Guaranty may not be changed or terminated orally, but only by a
written instrument signed by Lender.
11. This Guaranty shall be governed by and construed in accordance with
the laws of the State of New York.
This Guaranty shall be binding upon Guarantor and its respective legal
representatives and fiduciaries and shall inure to the benefit of and may be
enforced by Lender, its successors and assigns and any subsequent holder of the
Building Loan Mortgage.
If the Guarantor consists of more than one person or entity, the
obligations and liabilities of each such person or entity shall be joint and
several.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly executed
as of the day and year first above written.
ESSEX PARTNERS INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Senior Vice President
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STATE OF NEW YORK )
COUNTY OF MONROE ) ss:
On this 31st day of December, 1997, before me personally came Xxxxxxx X.
Xxxxxx, to me known, who being by me duly sworn, did depose and say that she
resides at 00 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx; that she is the Senior Vice
President of Essex Partners Inc., the corporation described in and which
executed the foregoing instrument, and she signed her name by authority of the
Board of Directors of said corporation.
/s/ Xxxx X. Xxxxxxxx
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Notary Public
XXXX X. XXXXXXXX
Notary Public in the State of New York
MONROE COUNTY
Commission Expires May 31, 1999
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