November 3, 2003
GUARANTY OF PAYMENT
This Guaranty ("Guaranty") is made by Xxxx Xxxxxxxxx, an
individual, having an address of 0000 Xxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx
00000 ("Guarantor") in favor of Cedar-Riverview LLC ("Cedar GP"), CSC-Riverview
LLC ("Cedar LP") and Cedar Lender LLC ("Cedar Lender") (Cedar GP, Cedar LP and
Cedar Lender, collectively, the "Cedar Group").
RECITALS
A. Firehouse Realty Corp. ("Firehouse"), Xxxx Development
Associates, Inc. ("Xxxx"), South River View Plaza, Inc. ("South"), River View
Development Corp. ("Development"), Riverview Commons, Inc. ("Commons"; and
together with Firehouse, Xxxx, South and Development, collectively, the
"Existing Owners") and Cedar LP are parties to that certain Contribution
Agreement dated as of October 2, 2003 (the "Agreement"). Capitalized terms used
herein and not specifically defined herein shall have the respective meanings
ascribed to those terms in the Agreement.
B. Pursuant to the terms of the Agreement, it is a condition
to the Closing that this Guaranty be executed and delivered by Guarantor, and,
in order to induce the Cedar LP to enter into the Agreement, which Cedar LP
would not do but for the execution and delivery of this Guaranty, Guarantor has
agreed to indemnify the Cedar Group in accordance with the terms of this
Agreement.
C. Guarantor has a direct financial interest in the
consummation of the transactions contemplated by the Agreement.
AGREEMENTS
NOW, THEREFORE, intending to be legally bound, Guarantor, in
consideration of the matters described in the foregoing Recitals, which Recitals
are incorporated herein and made a part hereof, and for other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, hereby
covenants and agrees for the benefit of the Cedar Group as follows:
1. Terms of Guaranty
(a) Guarantor absolutely, unconditionally and irrevocably
guarantees to the Cedar Group the prompt and unconditional payment of any and
all liabilities, obligations, debts, damages, losses, costs, expenses, fines,
penalties, charges, fees, judgments of whatever kind or nature (including but
not limited to reasonable attorneys' fees and other costs of defense) arising or
resulting directly or indirectly from (i) the Partnership's inability to redeem
the Preferred Interest in accordance with the provisions of the [Amended]
Partnership Agreement, or (ii) the failure by the Existing Owners to make
required payments of interest and/or principal under the Owners Loan, in either
case due to:
(i) a petition or application to any tribunal by either or
both of the Existing Owners for the appointment of a trustee or receiver of the
business, estate or assets or of any substantial portion of the business, estate
or assets of either or both of the Existing Owners;
(ii) the commencement of any proceedings by either or both of
the Existing Owners under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect;
(iii) the filing of any petition or application described in
clause (i) above;
(iv) an involuntary bankruptcy or insolvency proceeding
relating to either or both of the Existing Owners (A) which is commenced by any
party directly or indirectly controlling, controlled by or under common control
with either or both of the Existing Owners (which shall include, but not be
limited to, any creditor or claimant acting in concert with either or both of
the Existing Owners) or (B) in which any party directly or indirectly
controlling, controlled by or under common control with either or both of the
Existing Owners (which shall include, but not be limited to, any creditor or
claimant acting in concert with either or both of the Existing Owners) objects
to a motion by the Cedar Group, or any member thereof, for relief from any stay
or injunction from any remedial action permitted under law or equity;
(v) the entering of any order appointing any trustee or
receiver described in clause (i) above, or declaring either or both of the
Existing Owners bankrupt or insolvent, or approving the petition in any such
proceedings; or
(vi) an assignment for the benefit of creditors by either or
both of the Existing Owners;
(the obligations set forth in this Section 1(a) are collectively
referred to herein as the "Obligations").
(b) The obligations, covenants, agreements and duties of Guarantor
under this Guaranty shall in no way be affected or impaired by reason of the
occurrence, from time to time, of any of the following with respect to the
Agreement, the [Amended] Partnership Agreement, this Guaranty or any other
documents entered into in connection with the transactions contemplated by the
Agreement (collectively, the "Documents"), even though notice with regard to the
following may not have been given to, or received by, Guarantor, or the further
consent of Guarantor with regard to the following may not have been obtained:
(i) The waiver of the performance or observance by either or
both of the Existing Owners or Guarantor of any agreement, covenant, term or
condition to be performed or observed by it;
(ii) The extension of the time for the payment of any sums
owing or payable under the Documents or the time for the performance of any
other obligation under or arising out of or on account of the Documents;
(iii) The supplementing, modification or amendment (whether
material or otherwise) of any of the Documents or any of the obligations of
either or both of the Existing Owners or Guarantor, as applicable, set forth in
any of the Documents;
(iv) Any failure, omission, delay or lack on the part of the
Cedar Group, or any member thereof, to enforce, assert or exercise any right,
power or remedy conferred on such person in or by virtue of any of the
Documents, or any action on the part of any of the Cedar Group granting
indulgence or extension in any form;
(v) Any payment made on the Obligations, whether made by
either or both of the Existing Owners, Guarantor or any other person, which is
required to be refunded pursuant to any bankruptcy or insolvency law; it being
understood that no payment so refunded shall be considered as a payment of any
portion of the Obligations, nor shall it have the effect of reducing the
liability of Guarantor hereunder;
(vi) The death of Guarantor; or
(vii) The release of either or both of the Existing Owners
from the performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Documents by operation of law or otherwise.
(c) Guarantor hereby waives diligence and all demands, protests,
presentments and notices of every kind and nature, including, but not limited
to, notices of presentment, demand for payment or performance, protest, notice
of default or nonpayment, notice of dishonor, notice of protest and notice of
acceptance of this Guaranty and the creation, renewal, extension, modification
or accrual of any of the obligations Guarantor has hereby guaranteed.
(d) Guarantor hereby waives any and all legal requirements that any of
the Cedar Group institute any action or proceeding, at law or in equity, against
the Existing Owners, or anyone else, or exhausts its remedies against the
Existing Owners, or anyone else, in respect of the Obligations or in respect of
any other security held by any of the Cedar Group as a condition precedent to
bringing an action or proceeding against Guarantor under this Guaranty. All
rights and remedies afforded to the Cedar Group by reason of this Guaranty are
separate and cumulative rights and remedies and it is agreed that no one of such
rights or remedies, whether exercised by any of the Cedar Group or not, shall be
deemed to be an exclusion of any of the other rights or remedies available to
the Cedar Group and shall not limit or prejudice any other legal or equitable
right or remedy which the Cedar Group may have.
(e) Guarantor understands that the exercise by the Cedar Group of
certain rights and remedies may affect or eliminate Guarantor's right of
subrogation against the Existing Owners and that Guarantor may therefore incur
partially or totally nonreimbursable liability hereunder. Nevertheless,
Guarantor hereby authorizes and empowers the Cedar Group, their respective
successors, endorsees and/or assigns, to exercise in its or their sole
discretion, any rights and remedies, or any combination thereof, which may then
be available, it being the purpose and intent of Guarantor that the obligations
hereunder shall be absolute, continuing, independent and unconditional under any
and all circumstances. In the event that Guarantor shall advance or become
obligated to pay any sums under this Guaranty or in the event that either or
both of the Existing Owners shall hereafter become indebted to Guarantor,
Guarantor agrees that Guarantor shall have no right of subrogation or
reimbursement against either or both of the Existing Owners, no right of
subrogation against any collateral or any security provided for in the
Documents, unless and until all amounts due under this Guaranty shall have been
paid in full and all of Guarantor's obligations under the Guaranty shall have
been fully performed. To the extent Guarantor's waiver of these rights of
subrogation or reimbursement as set forth in this Guaranty are found by a court
of competent jurisdiction to be void or voidable for any reason, Guarantor
agrees that its rights of subrogation and reimbursement against the Existing
Owners and the members thereof and Guarantor's rights of subrogation against any
collateral or security shall be junior and subordinate as to lien, time of
payment and in all other respects to the Cedar Group' rights against the
Existing Owners and the members thereof and to the Cedar Group' right, title and
interest in such collateral or security. Nothing herein contained is intended or
shall be construed to give Guarantor any right of subrogation in or under the
Documents or any right to participate in any way therein, notwithstanding any
payments made by Guarantor under this Guaranty, all such rights of subrogation
and participation being hereby expressly waived and released.
(f) Guarantor unconditionally waives any defense to the enforcement of
this Guaranty, including, without limitation:
(i) the right to plead any and all statutes of limitations as
a defense to Guarantor's liability under this Guaranty; and
(ii) any defense based upon an election of remedies by any of
the Cedar Group, including, but not limited to, remedies relating to real
property or personal property security, which destroys or otherwise impairs the
subrogation rights of Guarantor to proceed against either or both of the
Existing Owners.
2. Covenants, Representations and Warranties
(a) Guarantor represents and warrants to each of the Cedar Group that
there is no action or proceeding either pending or threatened against Guarantor
before any court or administrative agency and no event has occurred which might
result in any material adverse change in the business or condition of Guarantor
or in the property of Guarantor which material and adverse change would
materially impair the ability of Guarantor to perform its obligations hereunder.
(b) Guarantor represents and warrants to each of the Cedar Group that
neither the execution nor delivery of this Guaranty, nor fulfillment of nor
compliance with the terms and provisions hereof, will conflict with, or result
in a material breach of the terms, conditions or provisions of, or constitute a
material default under, or result in the creation of any lien, charge or
encumbrance upon any property or assets of Guarantor under any other material
agreement or material instrument to which Guarantor is now a party or by which
Guarantor may be bound.
(c) Guarantor agrees to submit to personal jurisdiction in the
Commonwealth of Pennsylvania in any action or proceeding arising out of this
Guaranty. This Guaranty shall be construed and interpreted in accordance with
the laws of the Commonwealth of Pennsylvania, without giving effect to
Pennsylvania's principles of conflicts of law.
3. Miscellaneous
(a) All guaranties, covenants and agreements contained in this Guaranty
shall bind the respective successors and assigns of Guarantor and shall inure to
the benefit of the Cedar Group, and their respective successors and assigns.
(b) Any notice required or permitted to be delivered herein shall be
deemed to be delivered (a) when received by the addressee if delivered by
courier service, (b) if mailed, two days after deposit in the United States
Mail, postage prepaid, certified mail, return receipt requested, (c) if sent by
recognized overnight service (such as US Express Mail, Federal Express, UPS,
Airborne, etc.), then one day after delivery of same to an authorized
representative or agency of the said overnight service or (d) if sent by a
telecopier, when transmission is received by the addressee with electronic or
telephonic confirmation, in each such case addressed or telecopied to the Owners
or Cedar, as the case may be, at the address or telecopy number set forth
opposite the signature of such party hereto. Notifications are as follows:
To Guarantor: Xx. Xxxx Xxxxxxxxx
c/o Tower Investments, Inc.
Xxx Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopier: (000) 000-0000
with a copy to: Xx. Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopier: (000) 000-0000
To the Cedar Group: 00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxx
Telecopier: (000) 000-0000
with a copy to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
(c) Guarantor hereby waives the right of trial by jury in any
litigation arising hereunder and also waives the right, in such litigation, to
interpose counterclaims or setoffs of any kind or description.
(d) In the event that any of the Cedar Group shall receive any payments
on account of any of the obligations hereby guaranteed, whether directly or
indirectly, and it shall subsequently be determined that such payments were for
any reason improper, or a claim shall be made against any of the Cedar Group
that the same were improper, and any of the Cedar Group either voluntarily or
pursuant to court order shall return the same, Guarantor shall be liable, with
the same effect as if the said payments had never been paid to or received by
any of the Cedar Group, for the amount of such repaid or returned payments,
notwithstanding the fact that payments may theretofore have been credited on
account of the obligations hereby guaranteed.
(e) No delay on the part of any of the Cedar Group in exercising any
power or right hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any power or right hereunder or the failure to exercise
same in any instance preclude other or further exercise thereof or the exercise
of any other power or right; nor shall any of the Cedar Group be liable for
exercising or failing to exercise any such power or right; the rights and
remedies hereunder expressly specified are cumulative and not exclusive of any
rights or remedies which any of the Cedar Group may or will otherwise have.
(f) This instrument represents the entire agreement between the parties
and may not be modified or amended except by a writing duly executed by the
party to be charged.
(g) In the event that any of the Cedar Group, for any reason
whatsoever, shall deem it necessary to refer this Guaranty to an attorney for
the enforcement thereof or of any rights hereunder, by suit or otherwise, there
shall be immediately due from Guarantor to such Other Partner(s), in addition to
the sums guaranteed by Guarantor under this Guaranty, reasonable attorneys' fees
and actual disbursements, together with all costs and expenses of such action,
which costs, expenses, fees and disbursement shall be deemed part of the
obligation hereunder.
(h) In the event that any provision of this Guaranty or the application
thereof to Guarantor or any circumstance in the jurisdiction governing this
Guaranty shall, to any extent, be invalid or unenforceable under any applicable
statute, regulation, or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform to such statute, regulation or rule of law, and the
remainder of this Guaranty and the application of any such invalid or
unenforceable provision to parties, jurisdictions, or circumstances other than
to whom or to which it shall be held invalid or unenforceable, shall not be
affected thereby nor shall same affect the validity or enforceability of any
other provision of this Guaranty.
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IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty
as of the date first above set forth.
/s/ Xxxx Xxxxxxxxx
----------------------------
Xxxx Xxxxxxxxx
COMMONWEALTH OF PA )
) ss.:
COUNTY OF PHILADELPHIA )
On the 31st day of October 2003, before me, the undersigned, personally
appeared Xxxx Xxxxxxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed
to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their capacity(ies), and that by his/her/their signature(s) on
the instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
/s/
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Notary Public
