Exhibit 10.2(e)
NON-RECOURSE GUARANTY AGREEMENT
This NON-RECOURSE GUARANTY AGREEMENT (this "Guaranty") is made as of
May 30, 2000, by SONESTA BEACH RESORT LIMITED PARTNERSHIP, a Delaware limited
partnership ("Guarantor"), in favor of SUNAMERICA LIFE INSURANCE COMPANY, an
Arizona corporation ("Lender").
Recitals.
A. On or about January 6, 1997, Lender made a $22,880,000.00 loan
(the "Original Cambridge Loan") to Sonesta of Massachusetts, Inc., a
Massachusetts corporation, and 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, Commonwealth of Massachusetts, Deeds Book 11160, Page 340,
as amended by Amendment of Declaration of Trust dated July 8, 1966 and recorded
at Middlesex South, Commonwealth of Massachusetts, Deeds Book 11160, Page 359
(collectively, the "Cambridge Borrower").
B. The Original Cambridge Loan is evidenced by a Promissory Note
dated as of December 18, 1996, in the original principal amount of the Original
Cambridge Loan executed by Cambridge Borrower for the benefit of Lender (the
"Original Cambridge Note"), and is secured by, among other things, a Mortgage,
Security Agreement, Fixture Filing, Financing Statement and Assignment of Leases
and Rents (the "Original Cambridge Mortgage") dated as of December 18, 1996
executed by Cambridge Borrower for the benefit of Lender and covering certain
real property commonly known as the Royal Sonesta Hotel, Cambridge,
Massachusetts, and more particularly described in the Original Cambridge
Mortgage.
C. The Original Cambridge Note, the Original Cambridge Mortgage, and
each other document executed by Cambridge Borrower and evidencing or securing
the Original Cambridge Loan, are referred to herein, collectively, as the
"Original Cambridge Loan Documents."
D. On or about the date hereof, Lender is making an additional
advance to Cambridge Borrower in the amount of $19,865,733.66 (the "Cambridge
Additional Advance"), such that the aggregate indebtedness owing by Cambridge
Borrower to Lender under the Original Cambridge Loan and the Cambridge
Additional Advance is, as of the date of this Guaranty, $41,000,000.00.
E. Pursuant to an Amended and Restated Promissory Note (the
"Cambridge Note") of even date herewith in the original principal amount of
$41,000,000.00, Cambridge Borrower and Lender are consolidating, amending and
restating the Original Cambridge Loan and the Cambridge Additional Advance.
F. In connection with the Cambridge Additional Advance, Cambridge
Borrower and Lender are also amending certain terms of the Original Cambridge
Mortgage and
the other Original Cambridge Loan Documents. The loan evidenced by the Cambridge
Note is referred to herein as the "Cambridge Loan." The Original Cambridge
Mortgage, as modified, is referred to herein as the "Cambridge Mortgage." The
Original Cambridge Loan Documents, as modified, together with the Cambridge Note
and all other documents evidencing or executed in connection with the Cambridge
Additional Advance are referred to herein as the "Cambridge Loan Documents."
G. Lender is also making a $31,000,000.00 loan (the "Key Biscayne
Loan") to Guarantor. The Key Biscayne Loan is (a) evidenced by a Consolidated
and Renewed Promissory Note of even date herewith in the original principal
amount of the Key Biscayne Loan (the "Key Biscayne Note"), and (b) secured by,
among other things, a Consolidated, Amended and Restated Mortgage, Security
Agreement, Fixture Filing, Financing Statement and Assignment of Leases and
Rents of even date herewith granted by Guarantor for the benefit of Lender (the
"Key Biscayne Mortgage," and, together with the Key Biscayne Note and all other
documents evidencing and/or securing the Key Biscayne Loan, the "Key Biscayne
Loan Documents") covering certain real property commonly known as the Sonesta
Beach Resort, Key Biscayne, Florida, and more particularly described in the Key
Biscayne Mortgage (the "Key Biscayne Property").
H. All of the beneficial interests in the Cambridge Borrower are
owned by Sonesta International Hotels Corporation, a New York corporation
("Sonesta"). Sonesta is also the indirect and ultimate owner of 99% of the
beneficial interests in Guarantor.
I. As a condition to Lender making the Cambridge Additional Advance
to the Cambridge Borrower and the Key Biscayne Loan to Guarantor, Lender has
required Guarantor to execute this Guaranty, whereby Guarantor is agreeing to
guarantee the payment and performance of the Cambridge Borrower's obligations
under the Cambridge Note and the other Cambridge Loan Documents, and Lender has
required Guarantor to secure Guarantor's obligations under this Guaranty with a
second mortgage on the Key Biscayne Property.
J. The execution and delivery of this Guaranty by Guarantor (a) is a
condition to Lender's willingness to make the Cambridge Additional Advance to
Cambridge Borrower, and Lender's willingness to make the Key Biscayne Loan to
Guarantor, (b) is made in order to induce Lender to make the Cambridge
Additional Advance and the Key Biscayne Loan, and (c) is made in recognition
that Lender will be relying upon this Guaranty in making the Cambridge
Additional Advance and the Key Biscayne Loan and performing any other
obligations Lender may have under the Cambridge Loan Documents or the Key
Biscayne Loan Documents.
Agreement.
1. Consideration. Guarantor acknowledges that Guarantor will receive
material direct and indirect benefit from Lender making the Cambridge Additional
Advance to Cambridge Borrower, that Guarantor has received adequate
consideration for executing this
Guaranty, and that Lender would not make the Key Biscayne Loan to Guarantor if
Guarantor did not execute this Guaranty.
2. Guaranty. Guarantor hereby guarantees absolutely, primarily,
unconditionally, and irrevocably (a) the full and timely payment of the
indebtedness evidenced by or arising under the Cambridge Note and the other
Cambridge Loan Documents, as and when the same becomes due, whether at maturity,
by acceleration, or otherwise, all fees payable by the Cambridge Borrower in
connection with the Cambridge Loan, any advances made by Lender under the
authority of any of the Cambridge Loan Documents, including any sums expended by
Lender for the benefit of the Cambridge Borrower or for the benefit of any
security provided under any of the Cambridge Loan Documents, including, without
limitation, taxes, assessments, insurance premiums, and costs of maintenance,
repair or restoration, and any costs of enforcement or collection of the
Cambridge Loan Documents; and (b) the full and timely performance by Cambridge
Borrower of any and all of its obligations under the Cambridge Loan Documents.
The obligations of Cambridge Borrower that are guaranteed hereunder are
sometimes referred to herein collectively as the "Obligations." Guarantor agrees
that this is a guaranty of payment and performance, and not of collection;
however, it is a condition precedent to any action under this Guaranty that
there first occurs an Event of Default under and as defined in the Cambridge
Loan Documents.
3. Security. The obligations of Guarantor under this Guaranty are
secured by a second Mortgage, Security Agreement, Fixture Filing, Financing
Statement and Assignment of Leases and Rents of even date herewith granted by
Guarantor for the benefit of Lender covering the Key Biscayne Property (the "Key
Biscayne Second Mortgage").
4. Non-Recourse; Exceptions to Non-Recourse. Notwithstanding
anything to the contrary contained in this Guaranty, except as expressly
hereinafter set forth, the recourse of Lender with respect to the obligations
evidenced by this Guaranty shall be solely to the Property, Chattels, and
Intangible Personalty (as such terms are defined in the Key Biscayne Second
Mortgage), and all other collateral pledged by Guarantor to secure this
Guaranty. Notwithstanding anything to the contrary contained in this Guaranty or
in the Key Biscayne Second Mortgage, nothing shall be deemed in any way to
impair, limit or prejudice the rights of Lender (a) in foreclosure proceedings
or in any ancillary proceedings brought to facilitate Lender's foreclosure on
the Property or any portion thereof; (b) to recover from Guarantor damages or
costs (including without limitation reasonable attorneys' fees) incurred by
Lender as a result of waste by Guarantor; (c) to recover from Guarantor any
condemnation or insurance proceeds attributable to the Property which were not
paid to Lender or used to restore the Property in accordance with the terms of
the Key Biscayne Second Mortgage; (d) to recover from Guarantor any rents,
profits, security deposits, advances, rebates, prepaid rents or other similar
sums attributable to the Property collected by or for Guarantor following an
Event of Default under the Key Biscayne Second Mortgage and not properly applied
to the reasonable fixed and operating expenses of the Property, including
payments of this Guaranty, or held pursuant to Leases or other applicable
agreements; (e) to pursue the personal liability of Guarantor under the
provisions of Section 5.10 of the Key Biscayne Second Mortgage, including any
indemnification provisions under such Section; (f) to exercise any specific
rights or remedies afforded Lender
under any other provisions of the Key Biscayne Second Mortgage or by law or in
equity; (g) to recover from Guarantor and to properly apply and disburse the
amount of any accrued taxes, assessments, and/or utility charges affecting the
Property (whether or not the same have been billed to Guarantor) that are either
unpaid by Guarantor or paid by Lender under the Key Biscayne Second Mortgage and
to collect from Guarantor any sums expended by Lender in fulfilling the
obligations of Guarantor under any leases, permits, licenses (including liquor
licenses), management, franchise or license agreements or any other agreements
affecting or relating to the Property or the operation of the Property as a
full-service hotel; (h) to pursue any personal liability of Guarantor and/or
Sonesta International Hotels Corporation under the Environmental Indemnity
Agreement of even date herewith; and (i) to recover from Guarantor the amount of
any loss suffered by Lender (that would otherwise be covered by insurance) as a
result of Guarantor's failure to maintain any insurance required under the terms
of the Key Biscayne Second Mortgage. The agreement contained in this paragraph
to limit the personal liability of Guarantor shall become null and void and be
of no further force and effect in the event (i) that the Property or any part
thereof or any interest therein, or any interest in Guarantor, shall be further
encumbered by a voluntary lien securing any obligation upon which Guarantor or
any general partner, principal or affiliate of Guarantor shall be personally
liable for repayment, whether as obligor or guarantor which has not been
approved in advance by Lender; (ii) of any breach or violation of Section 5.4,
5.5 or 5.7 of the Key Biscayne Second Mortgage; (iii) of any fraud or material
misrepresentation by Guarantor in connection with the Property, the Key Biscayne
Second Mortgage or any loan document executed in connection therewith or the
application made by Guarantor for the Key Biscayne Loan; or (iv) of any
execution, amendment, modification or termination without the prior written
consent of Lender if such consent is required under the terms of Section 5.3 of
the Key Biscayne Second Mortgage, of any Lease (as defined in the Key Biscayne
Second Mortgage). For purposes of the foregoing, "affiliate" shall mean any
individual, corporation, trust, partnership or any other person or entity
controlled by, controlling or under common control with Guarantor. A person or
entity of any nature shall be presumed to have control when it possesses the
power, directly or indirectly, to direct, or cause the direction of, the
management or policies of another person or entity, whether through ownership of
voting securities, by contract, or otherwise.
5. Guaranty is Independent and Absolute. The obligations of
Guarantor hereunder are independent of the obligations of Cambridge Borrower and
of any other person who may become liable with respect to the Obligations.
Guarantor is jointly and severally liable with Cambridge 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 Cambridge Borrower, any other guarantor or any
other person for any Obligations guaranteed hereby and whether or not Cambridge
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 Cambridge Note or any other Cambridge
Loan Document, and (b) any other circumstances which might otherwise constitute
a defense available to, or a discharge of Cambridge Borrower in respect of, the
Obligations.
6. 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 Cambridge Note, including increasing the rate or rates of interest
thereunder agreed to by Cambridge 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 Cambridge 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 Cambridge
Borrower, 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 Cambridge 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 Cambridge 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.
7. Application of Payments Received by Lender. Any sums of money
Lender receives from or for the account of Cambridge Borrower may be applied by
Lender to reduce any of the Obligations or any other liability of Cambridge
Borrower to Lender, as Lender in Lender's discretion deems appropriate.
8. Waivers by Guarantor. In addition to all waivers expressed in any
of the Cambridge 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
Cambridge Loan Documents; (c) any right to require Lender to proceed against,
give notice to, or make demand upon Cambridge 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) until such time as the Obligations shall be
satisfied, any right of subrogation or to enforce any remedy which Lender may
have against Cambridge Borrower and any right to participate in any security now
or hereafter held by Lender and any right to reimbursement from the Cambridge
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 Cambridge
Borrower,
including bankruptcy, dissolution, liquidation, cessation, impairment,
modification, or limitation, from any cause, of any liability of Cambridge
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.
9. Bankruptcy Reimbursements. Guarantor hereby agrees that if any
amounts paid to Lender by Cambridge 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 Cambridge Note from the
date ten (10) days following demand therefor until paid), and, for this purpose,
this Guaranty shall survive repayment of the Cambridge Loan. Without limiting
the foregoing, Guarantor shall pay all costs and expenses incurred by Lender in
connection with any bankruptcy proceeding of Cambridge 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 Miami-Dade County, Florida,
or federal court located in the State of Florida 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. 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 Cambridge Note and other Cambridge Loan Documents which are for the
benefit of Lender, and, in the event the Cambridge Note and other Cambridge 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 Cambridge Note
and other Cambridge 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.
12. 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.
13. 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:
If to Guarantor:
c/o Sonesta International Hotels Corporation
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Office of the Treasurer
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 13.
14. 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.
15. Severability of Provisions. If any provision hereof or of any
other Cambridge Loan Document shall, for any reason and to any extent, be
invalid or unenforceable, then the remainder of the 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.
16. Waiver. Neither the failure of Lender to exercise any right or
power given hereunder or to insist upon strict compliance by Cambridge Borrower,
Guarantor, any other guarantor, or any other person with any of its obligations
set forth herein or in any of the Cambridge Loan Documents, nor any practice of
Cambridge Borrower or Guarantor at variance with the terms hereof or of any
Cambridge Loan Documents, shall constitute a waiver of Lender's right to demand
strict compliance with the terms and provisions of this Guaranty.
17. 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.
18. 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 State of Florida.
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the
day and year first above written.
GUARANTOR:
SONESTA BEACH RESORT LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Florida Sonesta Corporation, a Florida
corporation, its General Partner
By: /s/
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Xxxxx X. Xxxxxxxxx, Vice President
