ACR 8-K
ACRES Commercial Realty Corp. (ACR)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): |
(Exact name of Registrant as Specified in Its Charter)
(State or Other Jurisdiction |
(Commission File Number) |
(IRS Employer |
||
|
|
|
|
|
|
||||
|
||||
(Address of Principal Executive Offices) |
|
(Zip Code) |
||
Registrant’s Telephone Number, Including Area Code: |
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
|
|
Trading |
|
|
|
|
|||
|
|
|||
|
|
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On September 12, 2025, ACRES Commercial Realty Corp. (the “Company”) entered into guaranties related to a $62 million construction loan and an $11 million bridge loan made to a borrower that is held by a joint venture in which the Company has a 90% membership interest. Pursuant to the Guaranty of Completion, executed September 12, 2025, by Adam Friedberg, Anthony Hrusovsky, Peter Koch and the Company (collectively, the “Guarantors”) for the benefit of DL RCF I Loan Holdings, LLC and DL RCF I Loan Holdings (Evergreen), LLC (collectively, the “Lender”), the Guarantors guarantee to the Lender, the Borrower’s obligation to commence, construct, develop and complete the construction project in a good and workmanlike manner in accordance with the terms and conditions of the Loan Agreement, dated September 12, 2005 by and among the Borrower, DL RCF I Loan Holdings, LLC (the “Agent”) and the Lender (the “Loan Agreement”) and to perform all other work contemplated or required to be completed pursuant to the loan documentation through final completion.
On September 12, 2025, the Guarantors also entered into a Guaranty of Retail Space to guarantee the payment and performance of all of the obligations for the payment of debt and the performance of the obligations under the Loan Agreement and a Guaranty of Recourse Obligations to guarantee the payment and performance of the certain liabilities (“bad boy”) and payment obligations set forth in the Loan Agreement and agree to be liable for the guaranteed obligations as a primary obligor. Also on September 12, 2025, the Guarantors entered into the Guaranty of Interest and Carry Costs to guarantee the payment and performance of the Borrower’s obligation to timely pay all Carry Costs and Debt Service and its obligation to make deposits into the Carry Cost Account (each as defined in the agreement) in accordance with the Loan Agreement, and all interest due to the Bridge Lender and/or preferred return due to HTC Investor pursuant to the Master Tenant Operating Agreement. The Guarantors also unconditionally covenant and agree to be liable for these guaranteed obligations as a primary obligor. Additionally, the Guarantors with the Borrower also entered into an Environmental Indemnity Agreement jointly and severally in favor of the Lender and Agent whereby the Guarantors serving as Indemnitors provided environmental representations and warranties, covenants and indemnification.
In connection with the $10.9 million bridge loan from Hoyne Savings Bank (“Bridge Lender”) to Borrower, the Company entered into the Repayment and Completion Guaranty on September 25, 2025, in favor of Bridge Lender subject to the Bridge Loan Agreement between Borrower and Bridge Lender (the “Bridge Loan Agreement”) to guarantee the prompt payment of all indebtedness under the Bridge Loan Agreement and the prompt performance of all other covenants, obligations and agreements of Borrower under the Bridge Loan Agreement, including but not limited to, construction of the improvements and completion before the completion date and material compliance with all environmental covenants and indemnities set forth in the Bridge Loan Agreement.
The foregoing description of the Guaranty of Completion, the Guaranty of Retail Space, the Guaranty of Recourse Obligations, the Environmental Indemnity Agreement and the Repayment and Completion Guaranty are only summaries, do not purport to be complete and are qualified in their entirety by reference to the full text of such agreements, which are filed as Exhibits 10.1, 10.2, 10.3, 10.4, 10.5 and 10.6 hereto and are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. |
|
Description |
10.1 |
|
|
10.2 |
|
|
10.3 |
|
|
10.4 |
|
|
10.5 |
|
|
10.6 |
|
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
|
ACRES COMMERCIAL REALTY CORP. |
|
|
|
|
Date: |
September 18, 2025 |
By: |
/s/ Eldron Blackwell |
|
|
|
Eldron Blackwell |
Exhibit 10.1
GUARANTY OF COMPLETION
This GUARANTY OF COMPLETION (this “Guaranty”) is executed as of September 12, 2025 by ADAM FRIEDBERG, an individual, having an address at 3834 N. Lakewood Avenue, Chicago, Illinois 60613, ANTHONY HRUSOVSKY, an individual, having an address at 531 E Scranton Avenue, Lake Bluff, Illinois 60044 and PETER KOCH, an individual, having an address at 1509 Kaywood Lane, Glenview, Illinois 60025 (collectively, “Principal Guarantors”) and ACRES COMMERCIAL REALTY CORP., a Maryland corporation, having an address at 390 RXR Plaza, Uniondale, New York 11556 (“Entity Guarantor”; Entity Guarantor, together with Principal Guarantors, individually and collectively, the “Guarantor”), for the benefit of DL RCF I LOAN HOLDINGS, LLC, a Delaware limited liability company, having an address at c/o Derby Lane Partners, LLC, 12 E. 49th Street, Suite 1519, New York, New York 10017, in its capacity as administrative agent (together with its successors and/or assigns, “Agent”), for itself and on behalf of any Lender (as that term is defined in the Loan Agreement).
W I T N E S S E T H:
A. Lender is prepared to make a loan to 65 E. WACKER HOLDINGS II, LLC, a Delaware limited liability company (“Borrower”) in the maximum principal amount of up to SIXTY-TWO MILLION FOUR HUNDRED THOUSAND AND NO/100 DOLLARS ($62,400,000.00) (the “Loan”) pursuant to that certain Loan Agreement, dated as of the date hereof, by and among Borrower, Agent, and Lender (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”), which Loan is evidenced by, among other things, the Note (as defined in the Loan Agreement) and is secured by, among other things, the Mortgage (as defined in the Loan Agreement), encumbering certain real property (the “Property”) more particularly described therein. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Loan Agreement.
B. Lender is not willing to make and Agent is not willing to administer the Loan, or otherwise extend credit, to Borrower unless Guarantor unconditionally guarantees the payment and performance to Agent and Lender of the Guaranteed Obligations (as herein defined).
C. Guarantor is the owner of direct or indirect interests in Borrower, and Guarantor will benefit from Agent administering and Lender making the Loan to Borrower.
NOW, THEREFORE, as an inducement to Lender to make and Agent to administer the Loan to Borrower and to extend such additional credit as Agent and Lender may from time to time agree to extend under the Loan Documents, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
ARTICLE 1
NATURE AND SCOPE OF GUARANTY
Section 1.1 Guaranty of Obligation.
(a) Guarantor hereby absolutely, irrevocably and unconditionally guarantees to Agent and Lender and their successors and assigns, Borrower’s obligation to commence, construct,
develop and complete the Project in a good and workmanlike manner in accordance with the terms and conditions of the Loan Agreement and the other Loan Documents, including without limitation, the Plans and Specifications, the Business Plan, the Development Agreement and the Construction Schedule, and to perform all other work contemplated or required to be completed pursuant to the Loan Documents through Final Completion (collectively, the “Required Work”); provided that amounts set forth in the Construction Budget shall not be a limitation on any obligation to complete the Required Work in accordance with this Guaranty, regardless of cost. Furthermore, Guarantor shall:
(i) perform, construct, erect, install and fully complete, or cause to be performed, constructed, erected, installed and fully completed, the Required Work in accordance with the terms and conditions of the Loan Documents and the Legal Requirements, free and clear of any and all mechanics’ or materialmen’s’ liens (subject to Guarantor’s and/or Borrower’s right to contest liens in accordance with the terms and conditions of Section 5.2.1 of the Loan Agreement, post security against the consequences of their possible foreclosure and procure an endorsement to the title policy insuring Agent and Lenders against the consequences of the foreclosure or enforcement of such liens, in each case to the extent expressly permitted by the Loan Agreement) (collectively, the “Guaranteed Work”), and in all events on or before the Initial Maturity Date, subject to Force Majeure. Without limiting the generality of the foregoing, Guarantor guarantees that with respect to such Guaranteed Work: (A) performance of the Guaranteed Work shall commence and be completed within the time limits set forth in the Loan Agreement and the Construction Schedule, subject to Force Majeure; (B) the Guaranteed Work shall be performed and completed in accordance with the Loan Documents, including without limitation, the Plans and Specifications, the Business Plan, the Development Agreement and the Construction Schedule, without deviation therefrom unless approved by Agent in writing or as otherwise required due to Force Majeure; and (C) all costs and expenses of performing the Guaranteed Work, including, without limitation, all Hard Costs, Soft Costs and Project Related Costs (but excluding Carry Costs), shall be paid as and when due, including without limitation, all claims and demands for labor, materials, tools, equipment, supplies and/or services incurred or used to construct and complete the Guaranteed Work, subject to Borrower’s right to contest such claims or demands in accordance with the terms and conditions of Section 5.2.1 of the Loan Agreement;
(ii) cause the Property at all times to be free and clear of any free and clear of any and all mechanics’ or materialmen’s’ liens (subject to Guarantor’s and/or Borrower’s right to contest liens in accordance with the terms and conditions of Section 5.2.1 of the Loan Agreement, post security against the consequences of their possible foreclosure and procure an endorsement to the title policy insuring Agent and Lenders against the consequences of the foreclosure or enforcement of such liens, in each case to the extent expressly permitted by the Loan Agreement), whether equal or prior in lien or other priority or subordinate to the lien of the Mortgage, and subject to the foregoing rights of Borrower and Guarantor, fully reimburse Agent, Lender, Construction Consultant, Servicer and their respective Affiliates (each, a “Lender Party”, and collectively, the “Lender Parties”), for any and all out-of-pocket sums actually expended or incurred by any Lender Party to pay or discharge any such liens entered or filed against the Property, including, without limitation, any and all out-of-pocket costs, damages, expenses and
2
out-of-pocket attorneys’ fees of outside counsel that any Lender Party actually incurs by reason thereof;
(iii) fully reimburse Lender Parties for any and all out-of-pocket costs and expenses expended or incurred by any Lender Party for or toward the performance and completion of the Guaranteed Work as a result of the failure by Borrower or Guarantor to prosecute the Guaranteed Work diligently and complete the same in accordance with the terms and conditions of the Loan Documents; provided, however, that notwithstanding anything to the contrary contained in this Guaranty, Guarantor shall not be responsible for the performance or payment of any net increased obligations or costs with respect to the Guaranteed Work caused by any elective modification of the most currently approved Plans and Specifications made solely by Lender and not requested by Borrower or Guarantor, unless such changes (A) are necessary to comply with the then-applicable Legal Requirements and/or any other documents entered into by or on behalf of Borrower, (B) are necessary to avoid imminent bodily injury, harm or damage to individuals or the Property, or to avoid the suspension of any necessary service or utility to the Property, (C) are attributable to and/or necessary to correct any defects in construction or clear errors in the underlying construction contracts, (D) are necessitated by field conditions and that are not voluntary changes or additions to the scope of the Project, and/or (E) are attributable to the procurement of alternative materials or products due to the unavailability or shortage of applicable materials or products (including as a result of the imposition of tariffs) each such change (i.e., that is not within the foregoing exceptions); and
(iv) fully indemnify, defend and hold Lender Parties harmless from and against any and all out-of-pocket costs, claims, actions, causes of action, losses, liabilities or expenses, including, without limitation, attorney’s fees of outside counsel and court costs and damages related to or resulting or arising from any failure by Borrower or Guarantor to fully perform and complete the Guaranteed Work as and when required under the Loan Documents, but specifically excluding any special, punitive or consequential damages, including, without limitation, diminution in value of the collateral for the Loan.
(b) Guarantor hereby absolutely and unconditionally guarantees to Agent and Lender payment of any amount required to be funded by Borrower to the Rebalancing Reserve Account in accordance with the Loan Agreement (regardless of whether construction has commenced, the conditions for Advances have been met, the Maturity Date has occurred or there has been an acceleration of the Loan) and payment of any Shortfall amount due and payable under the Loan Agreement (regardless of whether construction has commenced, the Maturity Date has occurred or there has been an acceleration of the Loan), and, for the avoidance of doubt, neither Agent nor Lender shall be required to demonstrate a loss or other impairment under the Loan in order to enforce the obligation in this clause (b).
(c) If Guarantor undertakes to complete the Guaranteed Work as provided above, Guarantor shall comply with all of the requirements of the Loan Documents relating to the Guaranteed Work. If Guarantor fails to comply with such requirements, and then if Agent (on behalf of Lender) exercises its right under the Loan Agreement and the other Loan Documents to take possession of the Property and complete the Required Work, the provisions of Section 1.1(d) of this Guaranty shall apply. Any amounts expended by Agent or Lender and not reimbursed
3
within ten (10) Business Days of demand therefor shall accrue interest at the Default Rate until paid in full.
(d) If Agent (on behalf of Lender) exercises its right under the Loan Agreement and the other Loan Documents to take possession of the Property and complete the Required Work upon Guarantor’s failure to comply with the provisions of Section 1.1(a)(i) above, Guarantor shall not have the right to complete the Required Work, but shall remain liable for all other obligations under this Guaranty.
(e) The payment, compliance and performance obligations guaranteed by Guarantor pursuant to this Section 1.1 are hereinafter collectively referred to as the “Guaranteed Obligations”.
The liabilities of Guarantor under this Section 1.1 shall not be limited by the amount of the Loan, but shall be determined solely by the cost of performance and completion of the Guaranteed Work and the performance of the other undertakings set forth in this Section 1.1.
Section 1.2 Remedies.
(a) Upon (i) the occurrence and during the continuance of an Event of Default by Borrower with respect to the timely payment of any monetary Guaranteed Obligation, Guarantor shall cure such Event of Default within five (5) Business Days following written notice thereof from Agent, and (ii) the occurrence and during the continuance of an Event of Default by Borrower with respect to the timely performance of any non-monetary Guaranteed Obligation, Guarantor shall, within ten (10) Business Days following written notice from Agent, commence, and thereafter diligently pursue, performance of all Guaranteed Obligations in accordance with this Guaranty.
(b) If Guarantor fails to promptly cure and/or commence payment or performance of the Guaranteed Obligations as set forth in Section 1.2(a) above within the applicable time period following Guarantor’s receipt of written notice from Agent as set forth in Section 1.2(a) above, then Agent (on behalf of Lender) shall have the following remedies, together with any other remedies under this Guaranty or at law or in equity:
(i) at Agent’s option, and without any obligation to do so, Agent may proceed to perform on behalf of Guarantor any or all the Guaranteed Obligations hereunder and Guarantor shall, within five (5) Business Days after demand by Agent and whether or not such Guaranteed Obligations are actually completed by Agent, pay to Agent all sums expended or incurred by any Lender Party in performing the Guaranteed Obligations, together with interest on such sum at the Default Rate if such sums are not paid by the tenth (10th) Business Day after Agent’s written demand;
(ii) from time to time and without first requiring performance by Borrower or exhausting any or all security for the Loan, to bring any action at law or in equity or both to compel Guarantor to perform its obligations hereunder, and to collect in any such action compensation for all loss, cost, damage, injury and expense sustained or incurred by any Lender Party as a consequence of the failure of Guarantor to perform the Guaranteed Obligations, together with interest thereon at the Default Rate; and
4
(iii) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IF GUARANTOR (A) DOES NOT PROMPTLY UNDERTAKE TO COMPLETE THE GUARANTEED WORK, (B) FAILS TO DILIGENTLY PROSECUTE THE COMPLETION THEREOF IN ACCORDANCE WITH THE LOAN AGREEMENT AND THIS GUARANTY OR (C) A GUARANTOR EVENT OF DEFAULT OCCURS, AGENT AND LENDER SHALL HAVE THE OPTION, IN THEIR SOLE DISCRETION, TO REQUIRE THAT GUARANTOR PAY TO AGENT, ON BEHALF OF THE LENDER (AS GUARANTOR’S SOLE LIABILITY UNDER THIS GUARANTY IN SUCH EVENT), AS LIQUIDATED DAMAGES AN AMOUNT (THE “LIQUIDATED DAMAGES AMOUNT”) EQUAL TO THE EXCESS, IF ANY, OF (I) ALL OF THE COSTS WHICH WOULD HAVE BEEN INCURRED IN ORDER TO PERFORM THE REQUIRED WORK (EVEN IF AGENT OR LENDER DOES NOT INTEND TO PERFORM THE REQUIRED WORK), EXCLUDING, FOR THE AVOIDANCE OF DOUBT, DEBT SERVICE AND CARRY COSTS, OVER (II) (A) AN AMOUNT EQUAL TO THE SUM OF: (1) THE UNDISBURSED PORTION OF THE LOAN (OTHER THAN AMOUNTS ALLOCABLE FOR DEBT SERVICE, CARRY COSTS, AND FEES, COSTS AND EXPENSES PAYABLE TO DEVELOPER OR ANY OTHER BORROWER RELATED PARTY), AS OF THE EARLIER OF THE MATURITY DATE OR THE ACCELERATION OF THE LOAN (THE “DETERMINATION DATE”), PLUS (2) WITHOUT DUPLICATION OF ANY AMOUNTS INCLUDED IN THE FOREGOING CLAUSE (1), FUNDS REMAINING IN OR ALLOCATED IN ANY RESERVES THAT ARE INTENDED TO BE AVAILABLE TO PAY OR REIMBURSE BORROWER FOR THE COSTS OF THE REQUIRED WORK (INCLUDING, WITHOUT LIMITATION, THE Unadvanced Project Reserve Account AND THE REBALANCING RESERVE ACCOUNT), LESS (B) ANY FURTHER AMOUNTS ACTUALLY DISBURSED TO ANY BORROWER OR GUARANTOR PURSUANT TO THE LOAN AGREEMENT OR THIS GUARANTY ON OR AFTER THE DETERMINATION DATE AND PRIOR TO PAYMENT TO AGENT (ON BEHALF OF LENDER) OF THE AMOUNT DETERMINED IN ACCORDANCE WITH THIS PARAGRAPH. THE AFORESAID COSTS SHALL BE EQUAL TO THE AMOUNT OF SUCH COSTS ESTIMATED BY THE CONSTRUCTION CONSULTANT (AND APPROVED BY AGENT) AND SHALL BE CONCLUSIVE FOR PURPOSES OF DETERMINING GUARANTOR’S LIABILITY HEREUNDER, PROVIDED THAT THE CONSTRUCTION CONSULTANT HAS MADE SUCH ESTIMATE ACTING IN GOOD FAITH. SUCH PAYMENT SHALL BE DUE NO LATER THAN TEN (10) BUSINESS DAYS FOLLOWING THE GIVING OF A WRITTEN DEMAND THEREFOR FROM THE AGENT, AND SHALL ACCRUE INTEREST AT THE DEFAULT RATE FROM AND AFTER THE EXPIRATION OF SUCH TEN (10) BUSINESS DAY PERIOD UNTIL THE SAME IS PAID IN FULL. IT IS AGREED THAT IF AGENT SO ELECTS TO RECEIVE SUCH PAYMENT OF THE LIQUIDATED DAMAGES AMOUNT, ANY SUCH PAYMENT SHALL BE RETAINED BY AGENT, ON BEHALF OF LENDER, AS LIQUIDATED DAMAGES. THE PARTIES FURTHER ACKNOWLEDGE AND AGREE THAT THE ACTUAL DAMAGES OF AGENT AND LENDER IN SUCH EVENT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES
5
EXISTING ON THE DATE OF THIS AGREEMENT, THE LIQUIDATED DAMAGES AMOUNT, IF AND SOLELY IF SO ELECTED BY AGENT, AND AS DETERMINED IN ACCORDANCE WITH THE FOREGOING, IS A REASONABLE ESTIMATE OF THE DAMAGES THAT AGENT AND LENDER WOULD INCUR IN THE EVENT THAT BORROWER OR GUARANTOR HAS NOT TIMELY AND FULLY COMPLETED THE REQUIRED WORK AS REQUIRED PURSUANT TO THE LOAN DOCUMENTS AND THIS GUARANTY, IRRESPECTIVE OF WHETHER CONSTRUCTION HAS COMMENCED. THE PAYMENT OF THE LIQUIDATED DAMAGES AMOUNT TO AGENT AND LENDER UNDER THE CIRCUMSTANCES PROVIDED FOR HEREIN IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO AGENT AND LENDER. UPON PAYMENT OF THE LIQUIDATED DAMAGES AMOUNT, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, GUARANTOR SHALL HAVE NO FURTHER OBLIGATIONS UNDER THIS GUARANTY.
Section 1.3 Nature of Guaranty. This Guaranty is an irrevocable, absolute, continuing guaranty of prompt payment and performance and not a guaranty of collection. The obligations of Guarantor under this Guaranty shall be primary, irrevocable, direct and not conditional or contingent upon pursuit by Agent or any Lender of any remedies it may have against Borrower under the Loan Agreement or the other Loan Documents or any remedies it might have against any other Person. This Guaranty may not be revoked by Guarantor and shall continue to be effective with respect to any Guaranteed Obligations arising or created after any attempted revocation by Guarantor and after (if Guarantor is a natural person) Guarantor’s death (in which event this Guaranty shall be binding upon Guarantor’s estate and Guarantor’s legal representatives and heirs). The fact that at any time or from time to time the Guaranteed Obligations may be increased or reduced or otherwise modified in any manner or to any extent shall not release, diminish or discharge the obligation of Guarantor to Agent and Lender with respect to the Guaranteed Obligations. This Guaranty may be enforced by Agent and any subsequent holder of the Note and shall not be discharged by the assignment or negotiation of all or any part of the Note.
Section 1.4 Guaranteed Obligations Not Reduced by Offset. Except for application of any amounts on deposit in the Rebalancing Reserve Account or the Unadvanced Project Reserve Account, the Guaranteed Obligations and the liabilities and obligations of Guarantor to Agent and Lender hereunder shall not be reduced, discharged or released because or by reason of any existing or future offset, claim or defense of Borrower or any other party (excluding the defense of payment and performance in full of the Guaranteed Obligations) against Agent or any Lender or against payment of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise. Agent’s and Lender’s rights under this Guaranty shall be in addition to all rights of Agent and Lender under the Loan Agreement, the Note, the Mortgage and the other Loan Documents. FURTHER, PAYMENTS MADE BY GUARANTOR UNDER THIS GUARANTY SHALL NOT REDUCE IN ANY RESPECT BORROWER’S OBLIGATIONS AND LIABILITIES UNDER THE LOAN AGREEMENT, THE NOTE, THE MORTGAGE AND THE OTHER LOAN DOCUMENTS EXCEPT WITH RESPECT TO, AND TO THE EXTENT OF, BORROWER’S OBLIGATION AND LIABILITY FOR THE PAYMENT MADE BY GUARANTOR. Further, no defense of any kind or nature which Guarantor has or may hereafter
6
have against Agent or Lender shall be available hereunder to Guarantor, other than the defense that the Guaranteed Obligations have been paid in full.
Section 1.5 Payment By Guarantor. Any payment required to be made by Guarantor pursuant to this Guaranty shall be made without presentment, protest, notice of protest, or any other notice whatsoever, all such notices being hereby waived by Guarantor to the extent not prohibited by non-waivable provisions of applicable Legal Requirements (any such waivable provisions being hereby expressly and irrevocably waived by Guarantor) and Guarantor shall pay in lawful money of the United States of America, the amount due on the Guaranteed Obligations to Agent within ten (10) Business Days after notice from Agent, at its address set forth herein. Any demand made by Agent may be made at any time coincident with or after the time for payment of all or part of the Guaranteed Obligations and may be made from time to time with respect to the same or different items of Guaranteed Obligations. Such demand shall be deemed made, given and received in accordance with the notice provisions hereof. In the event any individual Guarantor commences a case under the Bankruptcy Code or an involuntary petition under the Bankruptcy Code is filed against such Guarantor, then this Guaranty shall become immediately due and payable without demand (which demand is specifically waived) against such Guarantor with regard to all Guaranteed Obligations, unless, in the case of an involuntary case under the Bankruptcy Code only, the remaining Persons comprising Guarantor collectively continue to satisfy the Net Worth Threshold and the Liquid Assets Threshold set forth in Section 5.2 hereof.
Section 1.6 No Duty To Pursue Others. It shall not be necessary for Agent or Lender (and Guarantor hereby waives any rights which Guarantor may have to require Agent or Lender), in order to enforce the obligations of Guarantor hereunder, first to (i) institute suit or exhaust its remedies against Borrower or others liable on the Loan or the Guaranteed Obligations or any other Person, (ii) enforce Agent and Lender’s rights against any collateral which shall ever have been given to secure the Loan, (iii) enforce Agent’s and Lender’s rights against any other guarantors of the Guaranteed Obligations, (iv) join Borrower or any others liable on the Guaranteed Obligations in any action seeking to enforce this Guaranty, (v) exhaust any remedies available to Agent or Lender against any collateral which shall ever have been given to secure the Loan, or (vi) resort to any other means of obtaining payment of the Guaranteed Obligations. Neither Agent nor Lender shall be required to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations.
Section 1.7 Waivers. Guarantor agrees to the provisions of the Loan Documents and, to the extent not prohibited by non-waivable provisions of applicable Legal Requirements (any such waivable provisions being hereby expressly and irrevocably waived by Guarantor), hereby waives notice of (i) any loans or advances made by Agent or any Lender to Borrower, (ii) acceptance of this Guaranty, (iii) any amendment or extension of the Note, the Mortgage, the Loan Agreement or any other Loan Document, (iv) the execution and delivery by Borrower, Agent and Lender of any other loan or credit agreement or of Borrower’s execution and delivery of any promissory note or other document arising under the Loan Documents or in connection with the Property or the Collateral, (v) the occurrence of (A) any breach by Borrower of any of the terms or conditions of the Loan Agreement or any of the other Loan Documents, or (B) an Event of Default, (vi) Agent’s and Lender’s transfer or disposition of the Guaranteed Obligations, or any part thereof, (vii) the sale or foreclosure (or the posting or advertising for the sale or foreclosure) of any collateral for the Guaranteed Obligations, (viii) protest, proof of non-payment or default by
7
Borrower, or (ix) any other action at any time taken or omitted by Agent or any Lender and, generally, all demands and notices of every kind in connection with this Guaranty (other than any applicable notices that are expressly and specifically required under this Guaranty), the Loan Documents, any documents or agreements evidencing, securing or relating to any of the Guaranteed Obligations and/or the obligations hereby guaranteed. Notwithstanding the foregoing or anything to the contrary contained in this Guaranty, Guarantor does not waive the right to receive any notices from Lender to the extent such notices are expressly required to be given to Guarantor by Agent under the Loan Documents but the failure to provide such notices shall not give rise to any defenses by Guarantor hereunder or otherwise limit Agent’s or Lender’s rights hereunder (other than to the extent any grace periods under the Loan Documents are extended as a result thereof).
Section 1.8 Payment of Expenses. In the event that Guarantor shall breach or fail to timely perform any provisions of this Guaranty, Guarantor shall, within ten (10) Business Days’ after written demand by Agent, pay Agent (on behalf of Lender) all actual out-of-pocket costs and expenses (including court costs and out-of-pocket attorneys’ fees of outside counsel) incurred by Agent or Lender in the enforcement hereof or the preservation of Agent’s or Lender’s rights hereunder, together with interest thereon at the Default Rate from and after the expiration of such ten (10) Business Day period until the date of payment to Agent. The covenant contained in this Section shall survive the payment and performance of the Guaranteed Obligations. Notwithstanding the foregoing, if a court of competent jurisdiction shall find in favor of the Borrower and/or Guarantor, then neither Borrower nor Guarantor shall have any obligation under this provision.
Section 1.9 Effect of Bankruptcy. In the event that pursuant to any insolvency, bankruptcy, reorganization, receivership or other debtor relief law or any judgment, order or decision thereunder, (a) Agent or Lender must rescind or restore any payment or any part thereof received by Agent or a Lender in satisfaction of the Guaranteed Obligations, as set forth herein, any prior release or discharge from the terms of this Guaranty given to Guarantor by Agent or a Lender shall be without effect and this Guaranty shall remain (or shall be reinstated to be) in full force and effect and (b) notwithstanding any other provision of this Guaranty, (i) all amounts hereunder shall become immediately due and payable and (ii) Guarantor hereby waives all demands and notices of every kind. It is the intention of Borrower and Guarantor that Guarantor’s obligations hereunder shall not be discharged except by Guarantor’s performance of such obligations and then only to the extent of such performance. Notwithstanding anything to the contrary in this Guaranty or in any of the other Loan Documents, Lender and Agent shall not be deemed to have waived any right which Lender or Agent may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Obligations against Borrower or to require that all collateral shall continue to secure all of the Obligations owing to Lender and Agent in accordance with the Loan Documents.
Section 1.10 Waiver of Subrogation, Reimbursement and Contribution. Notwithstanding anything to the contrary contained in this Guaranty, Guarantor hereby unconditionally and irrevocably waives, releases and abrogates any and all rights it may now or hereafter have under any agreement, at law or in equity (including, without limitation, any law subrogating Guarantor to the rights of Agent or any Lender), to assert any claim against or seek contribution, indemnification or any other form of reimbursement from Borrower or any other
8
party liable for the payment of any or all of the Guaranteed Obligations for any payment made by Guarantor under or in connection with this Guaranty or otherwise, until the Obligations (including, without limitation, any Guaranteed Obligations) have been indefeasibly repaid in full (subject to reinstatement as provided in Section 1.9 above).
Section 1.11 Advances of Loan to Guarantor.
(a) If, prior to Final Completion of the Required Work, no Guarantor Event of Default (as defined below) shall have occurred and be continuing and Guarantor is performing the Required Work pursuant to the terms hereof, Agent shall make further Advances of the Loan to Guarantor and/or disbursements to Guarantor from any applicable Account solely for the purpose of paying Project Related Costs (including, for the avoidance of doubt, Carry Costs and Debt Service) in accordance with the terms of the Loan Agreement; provided, however, that the obligation of Agent to make any such Advances shall be subject to the terms and conditions of this Section 1.11.
(b) With respect to each such Advance requested by Guarantor hereunder:
(i) Guarantor shall acknowledge that the agreement by Agent to make such further Advances to Guarantor pursuant to this Section 1.11 shall not prejudice or impair the right of Agent or Lender to demand performance by Borrower of its obligations under the Loan Documents, to declare Defaults or Events of Default under the Loan Documents, to exercise any rights and remedies thereunder or be deemed to be a waiver, estoppel, acceptance of course of conduct or forbearance by Agent under such Loan Documents;
(ii) there shall exist no Event of Default under the Loan Agreement that is susceptible of being cured by Guarantor on Borrower’s behalf, except to the extent that (a) an Event of Default otherwise exists solely as a result of Guarantor’s failure to pay certain sums required to be paid pursuant to the Loan Agreement that are the subject of the present Advance being requested by Guarantor and no other monetary Event of Default is then continuing (including, without limitation, a Shortfall of which Borrower or Guarantor has received written notice), (b) such Event of Default will be cured if Lender advances funds to Guarantor to make such payment (if applicable), and (c) Guarantor has otherwise satisfied all conditions hereunder to the making of such Advance);
(iii) Guarantor shall satisfy all of Borrower’s obligations that are conditions precedent to Advances of the Loan pursuant to the Loan Documents, other than as set forth in the immediately preceding clause (ii); provided that (a) any references in such conditions to items to be signed by an authorized signatory of “Borrower” or items to be completed or performed by “Borrower” shall be deemed to be replaced with references to Guarantor, and (b) any condition that representations and warranties shall be true and correct shall be deemed to exclude any failure of representations and warranties to be true due to the Event of Default that gave rise to Guarantor’s obligations hereunder; and
(iv) all Advances of the Loan made to Guarantor pursuant to this Section 1.11 shall be used only for the purpose of paying for or performing the Guaranteed Obligations or other Project Related Costs.
9
(c) “Guarantor Event of Default” shall mean any of the following events:
(i) if Guarantor fails to perform the Guaranteed Obligations within the applicable period for payment or performance hereunder (beyond the expiration of any applicable grace, notice and/or cure period) (except to the extent that (1) such failure exists solely as a result of Guarantor’s failure to pay certain sums required to be paid pursuant to the Loan Agreement, (2) such failure would be cured if Lender advanced funds to Guarantor to make such payment, and (3) Guarantor has otherwise satisfied all conditions under this Section 1.11 to the making of such Advance); or
(ii) if an Event of Default under Section 8.1(s) of the Loan Agreement shall be continuing with respect to Guarantor.
ARTICLE 2
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR’S OBLIGATIONS
Guarantor hereby consents and agrees to each of the following and agrees that Guarantor’s obligations under this Guaranty shall not be released, diminished, impaired, reduced or adversely affected by any of the following and waives any common law, equitable, statutory or other rights (including, without limitation, rights to notice) which Guarantor might otherwise have as a result of or in connection with any of the following:
Section 2.1 Modifications. Any renewal, extension, increase, modification, alteration or rearrangement of all or any part of the Guaranteed Obligations, the Note, the Mortgage, the Loan Agreement, the other Loan Documents or any other document, instrument, contract or understanding between Borrower, Agent and Lender or any other parties pertaining to the Guaranteed Obligations or any failure of Agent to notify Guarantor of any such action. Except as otherwise expressly limited in any other Loan Document, in furtherance and not in limitation of the foregoing, Guarantor authorizes Agent, without giving notice to Guarantor or obtaining Guarantor’s consent and without affecting the liability of Guarantor, from time to time to: (i) approve modifications to the Guaranteed Work (including, without limitation, the Required Work), the Property, the Project, the Construction Schedule, the Plans and Specifications, the Business Plan, the Development Agreement, the Construction Budget, and the Annual Budget as and when requested by Borrower; (ii) change the terms or conditions of disbursement of the Loan or the Loan proceeds; (iii) otherwise modify or amend the Loan Documents, including, without limitation, making changes in the terms of repayment of the Loan or modifying, extending or renewing payment dates; releasing or subordinating security in whole or in part; changing the interest rate; or advancing additional funds in its discretion for purposes related to the purposes specified in the Loan Agreement; or (iv) assign this Guaranty in whole or in part in accordance with the assignment of all or any portion of the Loan by Agent or any Lender. Guarantor hereby irrevocably and unconditionally covenants and agrees that it is liable for the Guaranteed Obligations as a primary obligor. Following a foreclosure of the Pledge Agreement or the Pledge Agreement (Master Tenant), the foregoing modifications may not be made to the extent they would increase or expand the obligations of Guarantor hereunder.
Section 2.2 Intentionally Omitted.
10
Section 2.3 Condition of Borrower or Guarantor. The insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of Borrower, Guarantor or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of Borrower or Guarantor or any sale, lease or transfer of any or all of the assets of Borrower or Guarantor or any changes in the direct or indirect shareholders, partners or members, as applicable, of Borrower or Guarantor; or any reorganization of Borrower or Guarantor.
Section 2.4 Invalidity of Guaranteed Obligations. The invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations or any document or agreement executed in connection with the Guaranteed Obligations for any reason whatsoever, including, without limitation, the fact that (i) the Guaranteed Obligations or any part thereof exceeds the amount permitted by law, (ii) the act of creating the Guaranteed Obligations or any part thereof is ultra vires, (iii) the officers or representatives executing the Note, the Mortgage, the Loan Agreement or the other Loan Documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (iv) the Guaranteed Obligations violate applicable usury laws, (v) Borrower has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from Borrower, other than the defense of actual payment or performance in full of the Guaranteed Obligations, (vi) the creation, performance or repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible or unenforceable, or (vii) the Note, the Mortgage, the Loan Agreement or any of the other Loan Documents have been forged or otherwise are irregular or not genuine or authentic, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other Person be found not liable on the Guaranteed Obligations or any part thereof for any reason.
Section 2.5 Release of Obligors. Any full or partial release of the liability of Borrower for the Guaranteed Obligations or any part thereof, or of any co-guarantors, or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations, or any part thereof, it being recognized, acknowledged and agreed by Guarantor that Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support from any other Person, and Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that other Persons (including Borrower) will be liable to pay or perform the Guaranteed Obligations or that Agent or Lender will look to other Persons (including Borrower) to pay or perform the Guaranteed Obligations.
Section 2.6 Other Collateral. The taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations.
Section 2.7 Release of Collateral. Any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of any collateral, property or security at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations.
11
Section 2.8 Care and Diligence. The failure of Agent, Lender or any other party to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of any collateral, property or security, including, but not limited to, any neglect, delay, omission, failure or refusal of Agent or Lender (i) to take or prosecute any action for the collection of any of the Guaranteed Obligations, or (ii) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose upon any security therefor, or (iii) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guaranteed Obligations.
Section 2.9 Unenforceability. The fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by Guarantor that Guarantor is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the collateral for the Guaranteed Obligations.
Section 2.10 Offset. Any existing or future right of offset, claim or defense of Borrower against Agent or Lender, or any other Person (including, without limitation, Guarantor), or against payment of the Guaranteed Obligations, whether such right of offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise (excluding the defense of actual payment and performance in full of the Guaranteed Obligations).
Section 2.11 Merger. The reorganization, merger or consolidation of Borrower or Guarantor into or with any other Person.
Section 2.12 Preference. Any payment by Borrower to Agent or Lender is held to constitute a preference under the Bankruptcy Code or for any reason Agent or any Lender is required to refund such payment or pay such amount to Borrower or to any other Person.
Section 2.13 Other Actions Taken or Omitted. Any other action taken or omitted to be taken with respect to the Loan Documents, the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly described herein, which obligation shall be deemed satisfied only upon the full and final payment and satisfaction of the Guaranteed Obligations.
Section 2.14 Independent Obligations. The obligations of Guarantor under this Guaranty are independent of Borrower’s obligations under the Loan Agreement, the Note and the other Loan Documents, and a separate action or actions may be brought and prosecuted against Guarantor to enforce this Guaranty, irrespective of whether an action is brought against Borrower or whether Borrower is joined in any such action or more successive and/or concurrent actions may be brought hereon against Guarantor either in the same action, if any, brought against
12
Borrower or in separate actions, as often as Agent or Lender, in their sole discretion, may deem advisable. To the extent it may lawfully do so, Guarantor, on behalf of itself and on behalf of each Person claiming by, through or under Guarantor, hereby irrevocably and unconditionally waives any right to object to Agent or Lender bringing simultaneous actions to (i) recover the Guaranteed Obligations against Borrower under the Loan Agreement, the Note or any other Loan Document, at law or in equity, or (ii) recover any amounts due under this Guaranty. For the avoidance of doubt, indefeasible payments made hereunder by Guarantor in respect of the Guaranteed Obligations shall be applied towards the Guaranteed Obligations pursuant to this Agreement.
Section 2.15 Survival. This Guaranty shall survive the exercise of remedies following an Event of Default under the Loan Agreement or the other Loan Documents, including, but not limited to a foreclosure of the Mortgage and/or any exercise of remedies under the Pledge Agreement or the Pledge Agreement (Master Tenant) by Agent or Lender, and shall remain in full force and effect until the earliest to occur of (i) Final Completion of the Required Work, (ii) the timely payment of the Liquidated Damages Amount in full as and when required to be paid pursuant to and in accordance with the terms and provisions of Section 1.2(a)(iii) or (iii) the date that all Obligations and other sums due under the Loan Agreement and the other Loan Documents have been fully satisfied and indefeasibly paid in full to Agent or Lender (subject to reinstatement as provided in Section 1.9 above).
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
To induce Agent and Lender to enter into the Loan Documents and to extend credit to Borrower, each Guarantor (with respect to itself only) represents and warrants to Agent and Lender as follows:
Section 3.1 Benefit. Guarantor is an Affiliate of Borrower, is the owner of a direct or indirect interest in Borrower and has received, or will receive, direct or indirect benefit from the making of this Guaranty with respect to the Guaranteed Obligations.
Section 3.2 Familiarity and Reliance. Guarantor is familiar with, and has independently reviewed books and records regarding, the financial condition of Borrower and is familiar with the value of any and all collateral intended to be created as security for the payment of the Note or Guaranteed Obligations; however, Guarantor is not relying on such financial condition or the collateral as an inducement to enter into this Guaranty.
Section 3.3 No Representation By Agent and the Lender. None of Agent, Lender nor any other party has made any representation, warranty or statement to Guarantor in order to induce Guarantor to execute this Guaranty.
Section 3.4 Guarantor’s Financial Condition. As of the date hereof, and after giving effect to this Guaranty and the contingent obligation evidenced hereby, Guarantor (a) is solvent, (b) has assets which, fairly valued, exceed its obligations, liabilities and debts, and (c) has property and assets sufficient to satisfy and repay its obligations and liabilities, including the Guaranteed Obligations. The financial statements of Guarantor delivered to Lender in connection with the origination of the Loan, including any related financial data delivered to Lender relating to
13
Guarantor: (i) are true, complete and correct in all material respects, (ii) accurately represent the financial condition of Guarantor as of the date of such financial statements, and (iii) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with GAAP throughout the periods covered, except as disclosed therein. Guarantor has no contingent liabilities, liabilities for taxes, unusual forward or long term commitments or unrealized or anticipated losses from any unfavorable commitment that could reasonably be expected to have an adverse effect on Guarantor’s ability to pay and perform its obligations under this Guaranty, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Guarantor from that set forth in said financial statements.
Section 3.5 Organization. If a particular Guarantor is an entity, such Guarantor is duly organized, validly existing and in good standing with full power and authority to own its assets and conduct its business, and is duly qualified and in good standing in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, and such Guarantor has taken all necessary action to authorize the execution, delivery and performance of this Guaranty and the other Loan Documents to which it is a party, and has the power and authority to execute, deliver and perform under this Guaranty, the other Loan Documents to which it is a party and all the transactions contemplated hereby and thereby.
Section 3.6 Proceedings; Enforceability. This Guaranty and the other Loan Documents to which Guarantor is a party have been duly authorized, executed and delivered by Guarantor and constitute a legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Neither this Guaranty nor any other Loan Document to which Guarantor is a party is subject to any right of rescission, set-off, counterclaim or defense by Guarantor, including the defense of usury, nor would the operation of any of the terms of this Guaranty or such other Loan Documents, or the exercise of any right hereunder or thereunder, render this Guaranty or such other Loan Documents unenforceable, and Guarantor not asserted any right of rescission, set-off, counterclaim or defense with respect thereto.
Section 3.7 Legality. The execution, delivery and performance by Guarantor of this Guaranty and the other Loan Documents to which Guarantor is a party, and the consummation of the transactions contemplated hereunder and thereunder, do not and will not contravene or conflict with any law, statute or regulation whatsoever to which Guarantor is subject, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the breach of, any indenture, mortgage, charge, lien, contract, agreement or other instrument to which Guarantor is a party or by which Guarantor or any of Guarantor’s property is bound.
Section 3.8 Consents. No consent, approval, authorization or order of any court or Governmental Authority is required for the execution, delivery and performance by Guarantor of, or compliance by Guarantor with, this Guaranty or the other Loan Documents to which Guarantor is a party, or the consummation of the transactions contemplated hereby or thereby, other than those which have been obtained by Guarantor.
14
Section 3.9 Litigation; Full and Accurate Disclosure. There is no action, suit, proceeding or investigation pending or, to the best of Guarantor’s knowledge, threatened in writing against Guarantor in any court or by or before any other Governmental Authority, which, in each case involves a risk of any judgment or liability not fully covered by insurance (other than any deductible) which, if adversely determined, could be reasonably expected to have a material adverse effect on the condition (financial or otherwise) or business of Guarantor, or could reasonably be expected to materially impair the ability of Guarantor to carry out the obligations contemplated by this Guaranty). There is no material fact presently known to Guarantor which has not been disclosed to Agent which adversely affects, nor as far as Guarantor can foresee, is reasonably likely to adversely affect, the Property or the Collateral or the business, operations or condition (financial or otherwise) of Borrower or Guarantor.
Section 3.10 Survival. All representations and warranties made by Guarantor herein shall survive the execution hereof.
ARTICLE 4
SUBORDINATION OF CERTAIN INDEBTEDNESS
Section 4.1 Subordination of All Guarantor Claims. As used herein, the term “Guarantor Claims” shall mean all debts and liabilities of Borrower to Guarantor, whether such debts and liabilities now exist or are hereafter incurred or arise, and whether the obligations of Borrower thereon be direct, contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of whether such debts or liabilities be evidenced by note, contract, open account, or otherwise, and irrespective of the Person or Persons in whose favor such debts or liabilities may, at their inception, have been, or may hereafter be, created, or the manner in which they have been, or may hereafter be, acquired by Guarantor. The Guarantor Claims shall include, without limitation, all rights and claims of Guarantor against Borrower (arising as a result of subrogation or otherwise) as a result of Guarantor’s payment of all or a portion of the Guaranteed Obligations. So long as any portion of the Obligations or the Guaranteed Obligations remains outstanding, Guarantor shall not receive or collect, directly or indirectly, from Borrower or any other Person any amount upon the Guarantor Claims.
Section 4.2 Claims in Bankruptcy; Subrogation. In the event of any receivership, bankruptcy, reorganization, arrangement, debtor’s relief or other insolvency proceeding involving Guarantor as a debtor, Agent shall have the right to prove its claim in any such proceeding so as to establish its rights hereunder and receive directly from the receiver, trustee or other court custodian dividends and payments which would otherwise be payable upon Guarantor Claims. Guarantor hereby assigns such dividends and payments to Agent and Lender. At any time while the Obligations are outstanding (other than, so long as no Guaranteed Obligations are then due and owing to Lender, with respect to another Guarantor), should Agent and Lender receive, for application against the Guaranteed Obligations, any dividend or payment which is otherwise payable to Guarantor and which, as between Borrower and Guarantor, shall constitute a credit against the Guarantor Claims, then, upon payment to Agent and Lender in full of the Obligations and the Guaranteed Obligations, Guarantor shall become subrogated to the rights of Agent and Lender to the extent that such payments to Agent and Lender on the Guarantor Claims have contributed toward the liquidation of the Guaranteed Obligations, and such subrogation shall be with respect to that proportion of the Guaranteed Obligations which would have been unpaid if
15
Agent and Lender had not received dividends or payments upon the Guarantor Claims. Notwithstanding the foregoing, Guarantor may assert any claim or seek contribution, indemnification or any other form of reimbursement from any other party liable for the payment of any or all of the Guaranteed Obligations (other than Borrower) in respect of a payment made by such Guarantor of the Guaranteed Obligations (each a “Contribution Claim”), provided that any payment made pursuant to such Contribution Claim shall be paid directly to Agent until such time that Agent shall have been paid the full amount of any underlying Guaranteed Obligation which is the basis of such Contribution Claim, together with all other outstanding claims by Agent on account of the Guaranteed Obligations.
Section 4.3 Payments Held in Trust. Notwithstanding anything to the contrary contained in this Guaranty, in the event that Guarantor should receive any funds, payments, claims and/or distributions which are prohibited by this Guaranty, Guarantor agrees to hold in trust for Agent and Lender an amount equal to the amount of all funds, payments, claims and/or distributions so received, and agrees that it shall have absolutely no dominion over the amount of such funds, payments, claims and/or distributions so received except to pay such funds, payments, claims and/or distributions promptly to Agent and Lender, and Guarantor covenants promptly to pay the same to Agent and Lender.
Section 4.4 Liens Subordinate. Guarantor agrees that any liens, security interests, judgment liens, charges or other encumbrances upon Borrower’s assets securing payment of the Guarantor Claims shall be and remain inferior and subordinate to any liens, security interests, judgment liens, charges or other encumbrances upon Borrower’s assets securing payment of the Guaranteed Obligations, regardless of whether such encumbrances in favor of Guarantor or Agent and Lender presently exist or are hereafter created or attach. Without the prior written consent of Agent, Guarantor shall not (i) exercise or enforce any creditor’s rights it may have against Borrower, or (ii) foreclose, repossess, sequester or otherwise take steps or institute any action or proceedings (judicial or otherwise, including, without limitation, the commencement of, or the joinder in, any liquidation, bankruptcy, rearrangement, debtor’s relief or insolvency proceeding) to enforce any liens, mortgages, deeds of trust, security interests, collateral rights, judgments or other encumbrances on the assets of Borrower held by Guarantor. The foregoing shall in no manner vitiate or amend, nor be deemed to vitiate or amend, any prohibition in the Loan Documents against Borrower granting liens or security interests in any of its assets to any Person other than Agent.
ARTICLE 5
COVENANTS
Section 5.1 Definitions. As used in this Article 5, the following terms shall have the respective meanings set forth below:
(a) “Liquid Asset” shall mean any of the following, but only to the extent owned individually, free of all security interests, liens, pledges, charges or any other encumbrance: (a) cash, (b) certificates of deposit (with a maturity of two years or less) issued by, or savings account with, any bank or other financial institution reasonably acceptable to Agent, (c) marketable securities listed on the New York Stock Exchange or NASDAQ (or any successors thereto) or any other national or international exchange reasonably acceptable to Agent, marked to market, and
16
(d) any line of credit running directly to the Guarantor; provided that Liquid Assets shall not include any asset that is a part of the Property or that is otherwise part of the collateral for the Loan other than distributions made to Guarantor from Borrower (directly or indirectly) to the extent expressly permitted by the Loan Documents.
(b) “Net Worth” shall mean, as of a given date, (i) a Guarantor’s total assets as of such date (exclusive of any interest in the Property or the Collateral or in any other asset that is part of the collateral for the Loan) less (ii) Guarantor’s total liabilities as of such date (exclusive of any liability under the Loan Documents), determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles.
Section 5.2 Covenants. Until all of the Obligations and Guaranteed Obligations have been paid in full, Guarantor collectively (i) shall maintain, in the aggregate, (x) a Net Worth of not less than $90,000,000.00 (the “Net Worth Threshold”) and (y) Liquid Assets of not less than $8,000,000.00 (the “Liquid Assets Threshold”) and (ii) shall not sell, pledge, mortgage or otherwise transfer any of its assets, or any interest therein, on terms materially less favorable than would be obtained in an arms-length transaction or if such transaction would cause the collective Net Worth of Guarantor to fall below the Net Worth Threshold or the collective Liquid Assets of Guarantor to fall below the Liquid Assets Threshold.
Section 5.3 Prohibited Transactions. Guarantor shall not, at any time while a default in the payment of the Guaranteed Obligations has occurred and is continuing, either (i) enter into or effectuate any transaction with any Affiliate that would reduce the collective Net Worth of Guarantor below the Net Worth Threshold (including the payment of any dividend or distribution to a shareholder, or the redemption, retirement, purchase or other acquisition for consideration of any stock or other ownership interest in Guarantor) or (ii) sell, pledge, mortgage or otherwise transfer to any Person any of Guarantor’s assets, or any interest therein, in each case, other than for reasonably equivalent value.
Section 5.4 Financial Statements. Each Guarantor (as to itself only) shall deliver to Agent:
(a) within 120 days after the end of each calendar year, (x) with respect to Principal Guarantors, an unaudited balance sheet and (y) with respect to Entity Guarantor, an audited balance sheet (provided, that, if the financials of Entity Guarantor are publicly available, such balance sheet may be unaudited), in each case, of such Guarantor as of the end of such calendar year substantially similar (in form and content) to the balance sheet delivered to Agent in connection with the origination of the Loan, determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles, (A) setting forth in reasonable detail (provided that setting forth such Guarantor’s Net Worth in the level of detail reflected in such Guarantor financial statements delivered in connection with the closing of the Loan shall be reasonable) such Guarantor’s Net Worth and Liquid Assets as of the end of such prior calendar year and based on such balance sheet, and (B) certifying (or accompanied by a certificate signed by a representative of Guarantor certifying) that such annual financial statements are true, correct, accurate and complete in all material respects and fairly present, as of the date of such financial statements, the financial
17
condition and results of the operations of such Guarantor determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles;
(b) within 40 days after the end of each calendar quarter, (x) with respect to Principal Guarantors, an unaudited balance sheet and (y) with respect to Entity Guarantor, an audited balance sheet (provided, that, if the financials of Entity Guarantor are publicly available, such balance sheet may be unaudited), in each case, of such Guarantor as of the end of such quarter substantially similar (in form and content) to the balance sheet delivered to Agent in connection with the origination of the Loan, determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles, (A) setting forth in reasonable detail any material changes from the last annual financial statement delivered to Agent by such Guarantor and setting forth in reasonable detail (provided that setting forth such Guarantor’s Net Worth in the level of detail reflected in such Guarantor’s financial statements delivered in connection with the closing of the Loan shall be reasonable) such Guarantor’s Net Worth and Liquid Assets as of the end of such prior calendar quarter and based on the foregoing quarterly financial statements, and (B) certifying (or accompanied by a certificate signed by a representative of Guarantor certifying) that such quarterly financial statements are true, correct, accurate and complete in all material respects and fairly present, as of the date of such financial statements, the financial condition and results of the operations of such Guarantor (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles;
(c) within 30 days after the date filed, a complete copy of such Guarantor’s tax return certified by such Guarantor; and
(d) within 20 days after request by Agent, such other financial information with respect to such Guarantor as Agent may reasonably request.
Section 5.5 Additional Covenants
(a) Existence; Compliance with Legal Requirements. Guarantor shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence and all rights, licenses, permits, franchises and applicable governmental authorizations necessary for the operation of its business and comply with all Legal Requirements applicable to it and its assets. Guarantor shall not engage in any dissolution, liquidation or consolidation or merger with or into any other business entity without obtaining the prior consent of Agent.
(b) Litigation. Guarantor shall give prompt notice to Agent of any litigation or governmental proceedings pending or threatened in writing against Guarantor which, if adversely determined, could reasonably be expected to materially adversely affect Guarantor’s condition (financial or otherwise) or business (including Guarantor’s ability to perform its Obligations hereunder or under the other Loan Documents to which it is a party).
(c) Patriot Act. Guarantor will use its good faith and commercially reasonable efforts to comply with the Patriot Act and all applicable requirements of Governmental Authorities having jurisdiction over Guarantor, including those relating to money laundering and terrorism.
18
(d) Further Assurances. Guarantor shall, at Guarantor’s sole cost and expense:
(i) cure any defects in the execution and delivery of the Loan Documents to which Guarantor is a party and execute and deliver, or cause to be executed and delivered, to Agent such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to correct any omissions in the Loan Documents to which Guarantor is a party, as Agent may reasonably require; and
(ii) so long as it does not expand the obligations or materially reduce the benefits to Borrower or Guarantor under the Loan Documents, except, in each case, other than to a de minimis extent, do and execute all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Guaranty and the other Loan Documents to which Guarantor is a party, as Agent may reasonably require from time to time.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Waiver. No failure to exercise, and no delay in exercising, on the part of Agent, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of Agent hereunder shall be in addition to all other rights provided by law. No modification or waiver of any provision of this Guaranty, nor any consent to any departure therefrom, shall be effective unless in writing and no such consent or waiver shall extend beyond the particular case and purpose involved. No notice or demand given in any case shall constitute a waiver of the right to take other action in the same, similar or other instances without such notice or demand.
Section 6.2 Notices. All notices, demands, requests, consents, approvals or other communications (any of the foregoing, a “Notice”) required, permitted or desired to be given hereunder shall be in writing and shall be sent by telefax (with answer back acknowledged) or delivered by hand or by reputable overnight courier, addressed to the party to be so notified at its address hereinafter set forth, or to such other address as such party may hereafter specify in accordance with the provisions of this Section 6.2. Any Notice shall be deemed to have been received: (a) on the date of sending by telefax if sent during business hours on a Business Day (otherwise on the next Business Day), (b) on the date of delivery by hand if delivered during business hours on a Business Day (otherwise on the next Business Day), and (c) on the next Business Day if sent by an overnight commercial courier, in each case addressed to the parties as follows:
If to Agent: DL RCF I Loan Holdings, LLC
c/o Derby Lane Partners LLC
12 East 49th Street, Suite 1519
New York, New York 10017
Attention: Urian Yap
Email: [email protected]
19
with a copy to: Gibson Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention: Matthew Kidd, Esq.
Email: [email protected]
If to Principal Guarantors:
Adam Friedberg
3834 N. Lakewood Avenue
Chicago, Illinois 60613
Email: [email protected]
Anthony Hrusovsky
531 E Scranton Avenue
Lake Bluff, Illinois 60044
Email: [email protected]
Peter Koch
1509 Kaywood Lane
Glenview, Illinois 60025
Email: [email protected]
with a copy to: Patzik, Frank & Samotny Ltd.
200 South Wacker Drive – Suite 2700
Chicago, Illinois 60606
Attention: John W. Morse
Facsimile No. (312) 551-1101
Email: [email protected]
If to Entity Guarantor:
ACRES Commercial Realty Corp.
390 RXR Plaza
Uniondale, New York 11556
Attention: Jaclyn Jesberger
Email: [email protected]
with a copy to: Murland Dainoff LLC
555 E. Lancaster Avenue, Suite 501
Radnor, Pennsylvania 19087
Attention: Harris A. Dainoff, Esquire
Email: [email protected]
Any party may change the address to which any such Notice is to be delivered by furnishing ten (10) days’ written notice of such change to the other parties in accordance with the provisions of this Section 6.2. Notices shall be deemed to have been given on the date set forth above, even if
20
there is an inability to actually deliver any Notice because of a changed address of which no Notice was given or there is a rejection or refusal to accept any Notice offered for delivery. Notice for any party may be given by its respective counsel. Additionally, Notice from Agent may also be given by Servicer.
Section 6.3 Governing Law; Jurisdiction; Service of Process. (a) THIS GUARANTY WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY GUARANTOR AND ACCEPTED BY AGENT IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THE NOTE WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION RELATED HERETO, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS GUARANTY AND/OR THE OTHER LOAN DOCUMENTS, AND THIS GUARANTY AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST AGENT OR GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY, AT AGENT’S OPTION, BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND GUARANTOR WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. EACH GUARANTOR DOES HEREBY DESIGNATE AND APPOINT:
Corporation Service Company
19 West 44th Street, Suite 200
New York, NY 10036
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND EACH GUARANTOR AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID
21
SERVICE MAILED OR DELIVERED TO SUCH GUARANTOR IN THE MANNER PROVIDED HEREIN SHALL CONCLUSIVELY BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON SUCH GUARANTOR IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. EACH GUARANTOR (I) SHALL GIVE PROMPT NOTICE TO AGENT OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS AND WHICH SUBSTITUTE AGENT SHALL BE THE SAME AGENT DESIGNATED BY BORROWER UNDER THE LOAN AGREEMENT), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY GUARANTOR IN ANY OTHER JURISDICTION.
Section 6.4 Invalid Provisions. If any provision of this Guaranty is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Guaranty, such provision shall be fully severable and this Guaranty shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Guaranty, and the remaining provisions of this Guaranty shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Guaranty, unless such continued effectiveness of this Guaranty, as modified, would be contrary to the basic understandings and intentions of the parties as expressed herein.
Section 6.5 Amendments. This Guaranty may be amended only by an instrument in writing executed by the party(ies) against whom such amendment is sought to be enforced.
Section 6.6 Parties Bound; Assignment. This Guaranty shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, permitted assigns, heirs and legal representatives. Agent shall have the right to assign or transfer its rights under this Guaranty in connection with any assignment of the Loan and the Loan Documents. Any assignee or transferee of Agent shall be entitled to all the benefits afforded to Agent under this Guaranty. Guarantor shall not have the right to assign or transfer its rights or obligations under this Guaranty without the prior written consent of Agent, and any attempted assignment without such consent shall be null and void.
Section 6.7 Headings. Section headings are for convenience of reference only and shall in no way affect the interpretation of this Guaranty.
Section 6.8 Recitals. The recitals and introductory paragraphs hereof are a part hereof, form a basis for this Guaranty and shall be considered prima facie evidence of the facts and documents referred to therein.
22
Section 6.9 Counterparts. To facilitate execution, this Guaranty may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Guaranty to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto. Any signature page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature pages.
Section 6.10 Rights and Remedies. If Guarantor becomes liable for any indebtedness owing by Borrower to Agent or any Lender, by endorsement or otherwise, other than under this Guaranty, such liability shall not be in any manner impaired or affected hereby and the rights of Agent and Lender hereunder shall be cumulative of any and all other rights that Agent or any Lender may ever have against Guarantor. The exercise by Agent and Lender of any right or remedy hereunder or under any other instrument, or at law or in equity, shall not preclude the concurrent or subsequent exercise of any other right or remedy.
Section 6.11 Entirety. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF GUARANTOR AND AGENT AND LENDER WITH RESPECT TO GUARANTOR’S GUARANTY OF THE GUARANTEED OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR AND AGENT AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF DEALING BETWEEN GUARANTOR AND AGENT AND LENDER, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND AGENT AND LENDER.
Section 6.12 Waiver of Right To Trial By Jury. GUARANTOR AND, BY ITS ACCEPTANCE HEREOF, AGENT AND LENDER, EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE NOTE, THE MORTGAGE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY GUARANTOR AND, BY ITS ACCEPTANCE HEREOF, AGENT AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF GUARANTOR, LENDER AND AGENT IS HEREBY AUTHORIZED TO FILE A COPY
23
OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE OTHER PARTY.
Section 6.13 New York Provisions. Guarantor acknowledges and agrees that this Guaranty is, and is intended to be, an instrument for the payment of money only, as such phrase is used in Section 3213 of the Civil Practice Law and Rules of the State of New York, that Guarantor has been fully advised by its counsel of Lender’s rights and remedies pursuant to such Section 3213 and that Guarantor expressly waives any right, and hereby agrees not, to assert that this Guaranty is not such an instrument.
Section 6.14 Cooperation. Guarantor acknowledges that Agent and Lender and their successors and assigns may effectuate a “Secondary Market Transaction” in accordance with Article 9 of the Loan Agreement. Subject to the terms, conditions and limitations set forth in the Loan Agreement, Guarantor shall cooperate with Agent and Lender in effecting any such Secondary Market Transaction and shall provide (or cause Borrower to provide) such information and materials as may be required or necessary pursuant to Section 9.1 and Section 9.2 of the Loan Agreement. Agent and Lender shall be permitted to share all such information with the investment banking firms, rating agencies, accounting firms, law firms and other third party advisory firms involved with the Loan and the Loan Documents or the applicable Secondary Market Transaction, provided that such parties are advised of the confidential nature of any information that is clearly marked as confidential information or that is not otherwise publicly available or known to Agent from another source. It is understood that the information provided by Guarantor to Agent and Lender may ultimately be disclosed to purchasers and potential purchasers in connection with a Secondary Market Transaction. Agent, Lender, and all of the aforesaid third party advisers and professional firms shall be entitled to rely on the information supplied by, or on behalf of, Guarantor in the form as provided by Guarantor. Agent and Lender may publicize the existence of the Loan in connection with its marketing for a Secondary Market Transaction or otherwise as part of its business development.
Section 6.15 Reinstatement in Certain Circumstances. If at any time any payment of the principal of or interest under the Note or any other amount payable by Borrower under the Loan Documents is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of Borrower or otherwise, Guarantor’s obligations hereunder with respect to such payment shall be reinstated as though such payment had been due but not made at such time.
Section 6.16 Gender; Number; General Definitions. Unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein, (a) words used in this Guaranty may be used interchangeably in the singular or plural form, (b) any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, (c) the word “Borrower” shall mean “each Borrower and any subsequent owner or owners of the Property or any part thereof or interest therein”, (d) the word “Agent” shall mean “Agent and any subsequent holder of the Note”, (e) the word “Note” shall mean “the Note and any other evidence of indebtedness secured by the Loan Agreement”, (f) the word “Property” shall include any portion of the Property and any interest therein, and (g) the phrases “attorneys’ fees”, “legal fees” and “counsel fees” shall include any and all out-of-pocket attorneys’, paralegal and law clerk fees and disbursements of outside counsel, including, but not limited to, fees and disbursements at the pre-trial, trial and
24
appellate levels, incurred or paid by Agent in protecting its interest in the Property, the Collateral, the Leases and/or the Rents and/or in enforcing its rights hereunder.
Section 6.17 Joint and Several. If there is more than one Guarantor, the obligations and liabilities of each Guarantor hereunder are joint and several. Without in any way limiting the obligations of Guarantor hereunder, the parties hereto acknowledge that the defined term “Guarantor” collectively includes each individual Guarantor and that it is the intent of the parties hereto in determining whether (a) a breach of a representation or a covenant has occurred or (b) there has occurred a default hereunder, that any such breach, occurrence, or event with respect to any individual Guarantor shall be deemed to be such a breach, occurrence or event with respect to every Guarantor and that each individual Guarantor need not have been involved with such breach, occurrence or event in order for the same to be deemed such a breach, occurrence or event with respect to every individual Guarantor.
Section 6.18 Fully Recourse. All of the terms and provisions of this Guaranty are recourse obligations of Guarantor and not restricted by any limitation on personal liability set forth in any of the Loan Documents.
Section 6.19 Exculpation. Section 9.4 of the Loan Agreement is hereby incorporated by reference as if set forth at length herein.
Section 6.20 Unsecured Obligations. The obligations of Guarantor under this Guaranty are not secured by the lien of the Mortgage or the security interests or other collateral described in the Mortgage or the other Loan Documents, it being the intent of Agent and Lender to create separate obligations of Guarantor hereunder which can be enforced against Guarantor without regard to the existence of the Mortgage or other Loan Documents or the liens or security interests created therein.
Section 6.21 Incorporation by Reference. To the extent that any provisions or defined terms contained in any other Loan Document (including, without limitation, the Loan Agreement) are used herein or incorporated herein by reference, and such other Loan Document is terminated or otherwise satisfied prior to the termination of this Guaranty, then, for the avoidance of doubt, such provisions and/or defined terms shall survive until the satisfaction of the Obligations without regard to the fact that the Loan Document originally containing the same has been otherwise terminated or satisfied.
Section 6.22 Non-Duplication of Guaranty Payments. Payments by Guarantor of amounts due hereunder shall be without duplication of any amounts paid for the identical liability under the Guaranty of Interest and Carry Costs and/or the Guaranty (as defined in the Loan Agreement) by Guarantor in favor of Agent of even date herewith (e.g., if Agent makes a claim requiring Guarantor to satisfy Borrower’s obligation to pay certain Taxes under the Guaranty (as defined in the Loan Agreement) and also a claim under this Guaranty to pay the same Taxes, Guarantor’s payment of such obligation pursuant to the Guaranty (as defined in the Loan Agreement) shall satisfy Guarantor’s obligation hereunder to pay the same, and vice versa).
Section 6.23 Limitation on Liability. Notwithstanding any provisions of this Guaranty to the contrary, Guarantor shall not have any liability under this Guaranty (a) to the extent such
25
liability arises solely as a result of the fraud, gross negligence or willful misconduct of Agent or Lender, or (b) for any special, punitive or consequential damages of any kind of nature unless such damages are actually incurred by, or asserted against, Agent or Lender.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and year first above written.
GUARANTOR:
/s/ Anthony Hrusovsky |
Anthony HrusovSKy, an individual |
/s/ Adam Friedberg |
Adam Friedberg, an individual |
/s/ Peter Koch |
Peter koch, an individual |
ACRES COMMERCIAL REALTY CORP.,
a Maryland corporation
By: |
/s/ Mark S. Fogel |
|
Name: Mark S. Fogel Title: President |
26
27
Exhibit 10.2
GUARANTY OF RETAIL SPACE
This GUARANTY OF RETAIL SPACE (this “Guaranty”) is executed as of September 12, 2025 by ADAM FRIEDBERG, an individual, having an address at 3834 N. Lakewood Avenue, Chicago, Illinois 60613, ANTHONY HRUSOVSKY, an individual, having an address at 531 E Scranton Avenue, Lake Bluff, Illinois 60044 and PETER KOCH, an individual, having an address at 1509 Kaywood Lane, Glenview, Illinois 60025 (collectively, “Principal Guarantors”) and ACRES COMMERCIAL REALTY CORP., a Maryland corporation, having an address at 390 RXR Plaza, Uniondale, New York 11556 (“Entity Guarantor”; Entity Guarantor, together with Principal Guarantors, individually and collectively, the “Guarantor”), for the benefit of DL RCF I LOAN HOLDINGS, LLC, a Delaware limited liability company, having an address at c/o Derby Lane Partners LLC, 12 E. 49th Street, Suite 1519, New York, New York 10017, in its capacity as administrative agent (together with its successors and/or assigns, “Agent”), for itself and on behalf of any Lender (as that term is defined in the Loan Agreement).
W I T N E S S E T H:
A. Lender is prepared to make a loan to 65 E. WACKER HOLDINGS II, LLC, a Delaware limited liability company (“Borrower”) in the maximum principal amount of up to SIXTY-TWO MILLION FOUR HUNDRED THOUSAND AND NO/100 DOLLARS ($62,400,000.00) (the “Loan”) pursuant to that certain Loan Agreement, dated as of the date hereof, by and among Borrower, Agent, and Lender (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”), which Loan is evidenced by, among other things, the Note (as defined in the Loan Agreement) and is secured by, among other things, the Mortgage (as defined in the Loan Agreement), encumbering certain real property (the “Property”) more particularly described therein. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Loan Agreement.
B. Lender is not willing to make and Agent is not willing to administer the Loan, or otherwise extend credit, to Borrower unless Guarantor unconditionally guarantees the payment and performance to Agent and Lender of the Guaranteed Obligations (as herein defined).
C. Guarantor is the owner of direct or indirect interests in Borrower, and Guarantor will benefit from Agent administering and Lender making the Loan to Borrower.
NOW, THEREFORE, as an inducement to Lender to make and Agent to administer the Loan to Borrower and to extend such additional credit as Agent and Lender may from time to time agree to extend under the Loan Documents, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
ARTICLE 1
NATURE AND SCOPE OF GUARANTY
Section 1.1 Guaranty of Obligation.
(a) Guarantor hereby absolutely, irrevocably and unconditionally guarantees to Agent and Lender and their successors and assigns the payment and performance of the Guaranteed
Obligations (as defined below) as and when the same shall be due and payable, whether by lapse of time, by acceleration of maturity or otherwise. Guarantor hereby irrevocably and unconditionally covenants and agrees that it is liable for the Guaranteed Obligations as a primary obligor.
(b) As used herein, the term “Guaranteed Obligations” means (i) the due payment and performance of all of the Obligations and all of the other covenants and conditions contained in the Note, the Loan Agreement and the other Loan Documents on the part of the Borrower to be performed; provided, that the aggregate liability of Guarantor for the Guaranteed Obligations shall not exceed the sum of (i) all costs and expenses incurred by Agent and/or Lender that are payable pursuant to Section 1.7 below and (ii) the Required Retail Space Lease Cap (as defined below).
(c) As used herein, “Required Retail Space Lease Cap” means, as of the relevant date of determination, an amount equal to (i) $1,820,000.00, less (ii) any amount funded in non-borrowed cash by Borrower towards the payment of Tenant Improvements and Leasing Commissions in connection with a Lease for the Retail Space. In no event shall the Required Retail Space Lease Cap be less than $0.00.
(d) Notwithstanding anything to the contrary in this Guaranty or in any of the other Loan Documents, neither Agent nor any Lender shall be deemed to have waived any right which Agent and Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Obligations against Borrower or to require that all collateral shall continue to secure all of the Obligations owing to Agent and Lender in accordance with the Loan Documents.
(e) Nothing herein contained is intended to limit or expand any obligations of Guarantor under any other guaranty given in connection with the Loan Agreement. Notwithstanding the foregoing, Guarantor shall not be required to make payments under this Guaranty to the extent Guarantor has already made a payment in respect of the same obligations under the Guaranty (as defined in the Loan Agreement), the Guaranty of Interest and Carry Costs or the Guaranty of Completion.
Section 1.2 Nature of Guaranty. This Guaranty is an irrevocable, absolute, continuing guaranty of prompt payment and performance and not a guaranty of collection. The obligations of Guarantor under this Guaranty shall be primary, irrevocable, direct and not conditional or contingent upon pursuit by Agent or any Lender of any remedies it may have against Borrower under the Loan Agreement or the other Loan Documents or any remedies it might have against any other Person. This Guaranty may not be revoked by Guarantor and shall continue to be effective with respect to any Guaranteed Obligations arising or created after any attempted revocation by Guarantor and after (if Guarantor is a natural person) Guarantor’s death (in which event this Guaranty shall be binding upon Guarantor’s estate and Guarantor’s legal representatives and heirs). The fact that at any time or from time to time the Guaranteed Obligations may be increased or reduced or otherwise modified in any manner or to any extent shall not release, diminish or discharge the obligation of Guarantor to Agent and Lender with respect to the Guaranteed Obligations. This Guaranty may be enforced by Agent and any subsequent holder of the Note and shall not be discharged by the assignment or negotiation of all or any part of the Note.
2
Section 1.3 Guaranteed Obligations Not Reduced by Offset. The Guaranteed Obligations and the liabilities and obligations of Guarantor to Agent and Lender hereunder shall not be reduced, discharged or released because or by reason of any existing or future offset, claim or defense of Borrower or any other party (excluding the defense of payment and performance in full of the Guaranteed Obligations) against Agent or any Lender or against payment of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise. Agent’s and Lender’s rights under this Guaranty shall be in addition to all rights of Agent and Lender under the Loan Agreement, the Note, the Mortgage and the other Loan Documents. FURTHER, PAYMENTS MADE BY GUARANTOR UNDER THIS GUARANTY SHALL NOT REDUCE IN ANY RESPECT BORROWER’S OBLIGATIONS AND LIABILITIES UNDER THE LOAN AGREEMENT, THE NOTE, THE MORTGAGE AND THE OTHER LOAN DOCUMENTS EXCEPT WITH RESPECT TO, AND TO THE EXTENT OF, BORROWER’S OBLIGATION AND LIABILITY FOR THE PAYMENT MADE BY GUARANTOR. Further, no defense of any kind or nature which Guarantor has or may hereafter have against Agent or Lender shall be available hereunder to Guarantor, other than the defense that the Guaranteed Obligations have been paid or performed in full.
Section 1.4 Payment By Guarantor. Any payment required to be made by Guarantor pursuant to this Guaranty shall be made without presentment, protest, notice of protest, or any other notice whatsoever, all such notices being hereby waived by Guarantor to the extent not prohibited by non-waivable provisions of applicable Legal Requirements (any such waivable provisions being hereby expressly and irrevocably waived by Guarantor) and Guarantor shall pay in lawful money of the United States of America, the amount due on the Guaranteed Obligations to Agent within ten (10) Business Days after notice from Agent, at its address set forth herein. Any demand made by Agent may be made at any time coincident with or after the time for payment of all or part of the Guaranteed Obligations and may be made from time to time with respect to the same or different items of Guaranteed Obligations. Such demand shall be deemed made, given and received in accordance with the notice provisions hereof. In the event any individual Guarantor commences a case under the Bankruptcy Code or an involuntary petition under the Bankruptcy Code is filed against such Guarantor, then this Guaranty shall become immediately due and payable without demand (which demand is specifically waived) against such Guarantor with regard to all Guaranteed Obligations unless, in the case of an involuntary case under the Bankruptcy Code only, the remaining Persons comprising Guarantor collectively continue to satisfy the Net Worth Threshold and the Liquid Assets Threshold set forth in Section 5.2 hereof.
Section 1.5 No Duty To Pursue Others. It shall not be necessary for Agent or Lender (and Guarantor hereby waives any rights which Guarantor may have to require Agent or Lender), in order to enforce the obligations of Guarantor hereunder, first to (i) institute suit or exhaust its remedies against Borrower or others liable on the Loan or the Guaranteed Obligations or any other Person, (ii) enforce Agent and Lender’s rights against any collateral which shall ever have been given to secure the Loan, (iii) enforce Agent’s and Lender’s rights against any other guarantors of the Guaranteed Obligations, (iv) join Borrower or any others liable on the Guaranteed Obligations in any action seeking to enforce this Guaranty, (v) exhaust any remedies available to Agent or Lender against any collateral which shall ever have been given to secure the Loan, or (vi) resort to any other means of obtaining payment of the Guaranteed Obligations. Neither Agent nor Lender
3
shall be required to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations.
Section 1.6 Waivers. Guarantor agrees to the provisions of the Loan Documents and, to the extent not prohibited by non-waivable provisions of applicable Legal Requirements (any such waivable provisions being hereby expressly and irrevocably waived by Guarantor), hereby waives notice of (i) any loans or advances made by Agent or any Lender to Borrower, (ii) acceptance of this Guaranty, (iii) any amendment or extension of the Note, the Mortgage, the Loan Agreement or any other Loan Document, (iv) the execution and delivery by Borrower, Agent and Lender of any other loan or credit agreement or of Borrower’s execution and delivery of any promissory note or other document arising under the Loan Documents or in connection with the Property or the Collateral, (v) the occurrence of (A) any breach by Borrower of any of the terms or conditions of the Loan Agreement or any of the other Loan Documents, or (B) an Event of Default, (vi) Agent’s and Lender’s transfer or disposition of the Guaranteed Obligations, or any part thereof, (vii) the sale or foreclosure (or the posting or advertising for the sale or foreclosure) of any collateral for the Guaranteed Obligations, (viii) protest, proof of non-payment or default by Borrower, or (ix) any other action at any time taken or omitted by Agent or any Lender and, generally, all demands and notices of every kind in connection with this Guaranty (other than any applicable notices that are expressly and specifically required under this Guaranty), the Loan Documents, any documents or agreements evidencing, securing or relating to any of the Guaranteed Obligations and/or the obligations hereby guaranteed. Notwithstanding the foregoing or anything to the contrary contained in this Guaranty, Guarantor does not waive the right to receive any notices from Lender to the extent such notices are expressly required to be given to Guarantor by Agent under the Loan Documents but the failure to provide such notices shall not give rise to any defenses by Guarantor hereunder or otherwise limit Agent’s or Lender’s rights hereunder (other than to the extent any grace periods under the Loan Documents are extended as a result thereof).
Section 1.7 Payment of Expenses. In the event that Guarantor shall breach or fail to timely perform any provisions of this Guaranty, Guarantor shall, within ten (10) Business Days’ after written demand by Agent, pay Agent (on behalf of Lender) all actual out-of-pocket costs and expenses (including court costs and out-of-pocket attorneys’ fees of outside counsel) incurred by Agent or Lender in the enforcement hereof or the preservation of Agent’s or Lender’s rights hereunder, together with interest thereon at the Default Rate from and after the expiration of such ten (10) Business Day period until the date of payment to Agent. The covenant contained in this Section shall survive the payment and performance of the Guaranteed Obligations. Notwithstanding the foregoing, if a court of competent jurisdiction shall find in favor of the Borrower and/or Guarantor, then neither Borrower nor Guarantor shall have any obligation under this provision.
Section 1.8 Effect of Bankruptcy. In the event that pursuant to any insolvency, bankruptcy, reorganization, receivership or other debtor relief law or any judgment, order or decision thereunder, (a) Agent or Lender must rescind or restore any payment or any part thereof received by Agent or a Lender in satisfaction of the Guaranteed Obligations, as set forth herein, any prior release or discharge from the terms of this Guaranty given to Guarantor by Agent or a Lender shall be without effect and this Guaranty shall remain (or shall be reinstated to be) in full force and effect and (b) notwithstanding any other provision of this Guaranty, (i) all amounts
4
hereunder shall become immediately due and payable and (ii) Guarantor hereby waives all demands and notices of every kind. It is the intention of Borrower and Guarantor that Guarantor’s obligations hereunder shall not be discharged except by Guarantor’s performance of such obligations and then only to the extent of such performance.
Section 1.9 Waiver of Subrogation, Reimbursement and Contribution. Notwithstanding anything to the contrary contained in this Guaranty, Guarantor hereby unconditionally and irrevocably waives, releases and abrogates any and all rights it may now or hereafter have under any agreement, at law or in equity (including, without limitation, any law subrogating Guarantor to the rights of Agent or any Lender), to assert any claim against or seek contribution, indemnification or any other form of reimbursement from Borrower or any other party liable for the payment of any or all of the Guaranteed Obligations for any payment made by Guarantor under or in connection with this Guaranty or otherwise, until the Obligations (including, without limitation, any Guaranteed Obligations) have been indefeasibly repaid in full (subject to reinstatement as provided in Section 1.8 above).
ARTICLE 2
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR’S OBLIGATIONS
Guarantor hereby consents and agrees to each of the following and agrees that Guarantor’s obligations under this Guaranty shall not be released, diminished, impaired, reduced or adversely affected by any of the following and waives any common law, equitable, statutory or other rights (including, without limitation, rights to notice) which Guarantor might otherwise have as a result of or in connection with any of the following:
Section 2.1 Modifications. Any renewal, extension, increase, modification, alteration or rearrangement of all or any part of the Guaranteed Obligations, the Note, the Mortgage, the Loan Agreement, the other Loan Documents or any other document, instrument, contract or understanding between Borrower, Agent and Lender or any other parties pertaining to the Guaranteed Obligations or any failure of Agent to notify Guarantor of any such action. Except as otherwise expressly limited in any other Loan Document, in furtherance and not in limitation of the foregoing, Guarantor authorizes Agent, without giving notice to Guarantor or obtaining Guarantor’s consent and without affecting the liability of Guarantor, from time to time to: (i) approve modifications to the Property, the Project, the Construction Schedule, the Guaranteed Work (as defined in the Guaranty of Completion), the Plans and Specifications, the Business Plan, the Development Agreement, the Construction Budget, and the Annual Budget as and when requested by Borrower; (ii) change the terms or conditions of disbursement of the Loan or the Loan proceeds; (iii) otherwise modify or amend the Loan Documents, including, without limitation, making changes in the terms of repayment of the Loan or modifying, extending or renewing payment dates; releasing or subordinating security in whole or in part; changing the interest rate; or advancing additional funds in its discretion for purposes related to the purposes specified in the Loan Agreement; or (iv) assign this Guaranty in whole or in part in accordance with the assignment of all or any portion of the Loan by Agent or any Lender. Guarantor hereby irrevocably and unconditionally covenants and agrees that it is liable for the Guaranteed Obligations as a primary obligor. Following a foreclosure of the Pledge Agreement or the Pledge
5
Agreement (Master Tenant), the foregoing modifications may not be made to the extent they would increase or expand the obligations of Guarantor hereunder.
Section 2.2 Intentionally Omitted.
Section 2.3 Condition of Borrower or Guarantor. The insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of Borrower, Guarantor or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of Borrower or Guarantor or any sale, lease or transfer of any or all of the assets of Borrower or Guarantor or any changes in the direct or indirect shareholders, partners or members, as applicable, of Borrower or Guarantor; or any reorganization of Borrower or Guarantor.
Section 2.4 Invalidity of Guaranteed Obligations. The invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations or any document or agreement executed in connection with the Guaranteed Obligations for any reason whatsoever, including, without limitation, the fact that (i) the Guaranteed Obligations or any part thereof exceeds the amount permitted by law, (ii) the act of creating the Guaranteed Obligations or any part thereof is ultra vires, (iii) the officers or representatives executing the Note, the Mortgage, the Loan Agreement or the other Loan Documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (iv) the Guaranteed Obligations violate applicable usury laws, (v) Borrower has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from Borrower, other than the defense of actual payment or performance in full of the Guaranteed Obligations, (vi) the creation, performance or repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible or unenforceable, or (vii) the Note, the Mortgage, the Loan Agreement or any of the other Loan Documents have been forged or otherwise are irregular or not genuine or authentic, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other Person be found not liable on the Guaranteed Obligations or any part thereof for any reason.
Section 2.5 Release of Obligors. Any full or partial release of the liability of Borrower for the Guaranteed Obligations or any part thereof, or of any co-guarantors, or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations, or any part thereof, it being recognized, acknowledged and agreed by Guarantor that Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support from any other Person, and Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that other Persons (including Borrower) will be liable to pay or perform the Guaranteed Obligations or that Agent or Lender will look to other Persons (including Borrower) to pay or perform the Guaranteed Obligations.
Section 2.6 Other Collateral. The taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations.
6
Section 2.7 Release of Collateral. Any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of any collateral, property or security at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations.
Section 2.8 Care and Diligence. The failure of Agent, Lender or any other party to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of any collateral, property or security, including, but not limited to, any neglect, delay, omission, failure or refusal of Agent or Lender (i) to take or prosecute any action for the collection of any of the Guaranteed Obligations, or (ii) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose upon any security therefor, or (iii) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guaranteed Obligations.
Section 2.9 Unenforceability. The fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by Guarantor that Guarantor is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the collateral for the Guaranteed Obligations.
Section 2.10 Offset. Any existing or future right of offset, claim or defense of Borrower against Agent or Lender, or any other Person (including, without limitation, Guarantor), or against payment of the Guaranteed Obligations, whether such right of offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise (excluding the defense of actual payment and performance in full of the Guaranteed Obligations).
Section 2.11 Merger. The reorganization, merger or consolidation of Borrower or Guarantor into or with any other Person.
Section 2.12 Preference. Any payment by Borrower to Agent or Lender is held to constitute a preference under the Bankruptcy Code or for any reason Agent or any Lender is required to refund such payment or pay such amount to Borrower or to any other Person.
Section 2.13 Other Actions Taken or Omitted. Any other action taken or omitted to be taken with respect to the Loan Documents, the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly described herein, which obligation shall be deemed satisfied only upon the full and final payment and satisfaction of the Guaranteed Obligations.
7
Section 2.14 Independent Obligations. The obligations of Guarantor under this Guaranty are independent of Borrower’s obligations under the Loan Agreement, the Note and the other Loan Documents, and a separate action or actions may be brought and prosecuted against Guarantor to enforce this Guaranty, irrespective of whether an action is brought against Borrower or whether Borrower is joined in any such action or more successive and/or concurrent actions may be brought hereon against Guarantor either in the same action, if any, brought against Borrower or in separate actions, as often as Agent or Lender, in their sole discretion, may deem advisable. To the extent it may lawfully do so, Guarantor, on behalf of itself and on behalf of each Person claiming by, through or under Guarantor, hereby irrevocably and unconditionally waives any right to object to Agent or Lender bringing simultaneous actions to (i) recover the Guaranteed Obligations against Borrower under the Loan Agreement, the Note or any other Loan Document, at law or in equity, or (ii) recover any amounts due under this Guaranty. For the avoidance of doubt, indefeasible payments made hereunder by Guarantor in respect of the Guaranteed Obligations shall be applied towards the Guaranteed Obligations pursuant to this Agreement.
Section 2.15 Survival. This Guaranty shall survive the exercise of remedies following an Event of Default under the Loan Agreement or the other Loan Documents, including, but not limited to a foreclosure of the Mortgage and/or any exercise of remedies under the Pledge Agreement or the Pledge Agreement (Master Tenant) by Agent or Lender, and shall remain in full force and effect until all Obligations and other sums due under the Loan Agreement and the other Loan Documents have been fully satisfied and indefeasibly paid in full to Agent or Lender, as applicable, and the Guaranteed Obligations accruing through the date of such repayment have been fully performed and satisfied by Guarantor.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
To induce Agent and Lender to enter into the Loan Documents and to extend credit to Borrower, each Guarantor (with respect to itself only) represents and warrants to Agent and Lender as follows:
Section 3.1 Benefit. Guarantor is an Affiliate of Borrower, is the owner of a direct or indirect interest in Borrower and has received, or will receive, direct or indirect benefit from the making of this Guaranty with respect to the Guaranteed Obligations.
Section 3.2 Familiarity and Reliance. Guarantor is familiar with, and has independently reviewed books and records regarding, the financial condition of Borrower and is familiar with the value of any and all collateral intended to be created as security for the payment of the Note or Guaranteed Obligations; however, Guarantor is not relying on such financial condition or the collateral as an inducement to enter into this Guaranty.
Section 3.3 No Representation By Agent and the Lender. None of Agent, Lender nor any other party has made any representation, warranty or statement to Guarantor in order to induce Guarantor to execute this Guaranty.
Section 3.4 Guarantor’s Financial Condition. As of the date hereof, and after giving effect to this Guaranty and the contingent obligation evidenced hereby, Guarantor (a) is solvent,
8
(b) has assets which, fairly valued, exceed its obligations, liabilities and debts, and (c) has property and assets sufficient to satisfy and repay its obligations and liabilities, including the Guaranteed Obligations. The financial statements of Guarantor delivered to Lender in connection with the origination of the Loan, including any related financial data delivered to Lender relating to Guarantor: (i) are true, complete and correct in all material respects, (ii) accurately represent the financial condition of Guarantor as of the date of such financial statements, and (iii) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with GAAP throughout the periods covered, except as disclosed therein. Guarantor has no contingent liabilities, liabilities for taxes, unusual forward or long term commitments or unrealized or anticipated losses from any unfavorable commitment that could reasonably be expected to have an adverse effect on Guarantor’s ability to pay and perform its obligations under this Guaranty, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Guarantor from that set forth in said financial statements.
Section 3.5 Organization. If a particular Guarantor is an entity, such Guarantor is duly organized, validly existing and in good standing with full power and authority to own its assets and conduct its business, and is duly qualified and in good standing in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, and such Guarantor has taken all necessary action to authorize the execution, delivery and performance of this Guaranty and the other Loan Documents to which it is a party, and has the power and authority to execute, deliver and perform under this Guaranty, the other Loan Documents to which it is a party and all the transactions contemplated hereby and thereby.
Section 3.6 Proceedings; Enforceability. This Guaranty and the other Loan Documents to which Guarantor is a party have been duly authorized, executed and delivered by Guarantor and constitute a legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Neither this Guaranty nor any other Loan Document to which Guarantor is a party is subject to any right of rescission, set-off, counterclaim or defense by Guarantor, including the defense of usury, nor would the operation of any of the terms of this Guaranty or such other Loan Documents, or the exercise of any right hereunder or thereunder, render this Guaranty or such other Loan Documents unenforceable, and Guarantor not asserted any right of rescission, set-off, counterclaim or defense with respect thereto.
Section 3.7 Legality. The execution, delivery and performance by Guarantor of this Guaranty and the other Loan Documents to which Guarantor is a party, and the consummation of the transactions contemplated hereunder and thereunder, do not and will not contravene or conflict with any law, statute or regulation whatsoever to which Guarantor is subject, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the breach of, any indenture, mortgage, charge, lien, contract, agreement or other instrument to which Guarantor is a party or by which Guarantor or any of Guarantor’s property is bound.
9
Section 3.8 Consents. No consent, approval, authorization or order of any court or Governmental Authority is required for the execution, delivery and performance by Guarantor of, or compliance by Guarantor with, this Guaranty or the other Loan Documents to which Guarantor is a party, or the consummation of the transactions contemplated hereby or thereby, other than those which have been obtained by Guarantor.
Section 3.9 Litigation; Full and Accurate Disclosure. There is no action, suit, proceeding or investigation pending or, to the best of Guarantor’s knowledge, threatened in writing against Guarantor in any court or by or before any other Governmental Authority, which, in each case involves a risk of any judgment or liability not fully covered by insurance (other than any deductible) which, if adversely determined, could be reasonably expected to have a material adverse effect on the condition (financial or otherwise) or business of Guarantor, or could reasonably be expected to materially impair the ability of Guarantor to carry out the obligations contemplated by this Guaranty). There is no material fact presently known to Guarantor which has not been disclosed to Agent which adversely affects, nor as far as Guarantor can foresee, is reasonably likely to adversely affect, the Property or the Collateral or the business, operations or condition (financial or otherwise) of Borrower or Guarantor.
Section 3.10 Survival. All representations and warranties made by Guarantor herein shall survive the execution hereof.
ARTICLE 4
SUBORDINATION OF CERTAIN INDEBTEDNESS
Section 4.1 Subordination of All Guarantor Claims. As used herein, the term “Guarantor Claims” shall mean all debts and liabilities of Borrower to Guarantor, whether such debts and liabilities now exist or are hereafter incurred or arise, and whether the obligations of Borrower thereon be direct, contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of whether such debts or liabilities be evidenced by note, contract, open account, or otherwise, and irrespective of the Person or Persons in whose favor such debts or liabilities may, at their inception, have been, or may hereafter be, created, or the manner in which they have been, or may hereafter be, acquired by Guarantor. The Guarantor Claims shall include, without limitation, all rights and claims of Guarantor against Borrower (arising as a result of subrogation or otherwise) as a result of Guarantor’s payment of all or a portion of the Guaranteed Obligations. So long as any portion of the Obligations or the Guaranteed Obligations remains outstanding, Guarantor shall not receive or collect, directly or indirectly, from Borrower or any other Person any amount upon the Guarantor Claims.
Section 4.2 Claims in Bankruptcy; Subrogation. In the event of any receivership, bankruptcy, reorganization, arrangement, debtor’s relief or other insolvency proceeding involving Guarantor as a debtor, Agent shall have the right to prove its claim in any such proceeding so as to establish its rights hereunder and receive directly from the receiver, trustee or other court custodian dividends and payments which would otherwise be payable upon Guarantor Claims. Guarantor hereby assigns such dividends and payments to Agent and Lender. At any time while the Obligations are outstanding (other than, so long as no Guaranteed Obligations are then due and owing to Lender, with respect to another Guarantor), should Agent and Lender receive, for application against the Guaranteed Obligations, any dividend or payment which is otherwise
10
payable to Guarantor and which, as between Borrower and Guarantor, shall constitute a credit against the Guarantor Claims, then, upon payment to Agent and Lender in full of the Obligations and the Guaranteed Obligations, Guarantor shall become subrogated to the rights of Agent and Lender to the extent that such payments to Agent and Lender on the Guarantor Claims have contributed toward the liquidation of the Guaranteed Obligations, and such subrogation shall be with respect to that proportion of the Guaranteed Obligations which would have been unpaid if Agent and Lender had not received dividends or payments upon the Guarantor Claims. Notwithstanding the foregoing, Guarantor may assert any claim or seek contribution, indemnification or any other form of reimbursement from any other party liable for the payment of any or all of the Guaranteed Obligations (other than Borrower) in respect of a payment made by such Guarantor of the Guaranteed Obligations (each a “Contribution Claim”), provided that any payment made pursuant to such Contribution Claim shall be paid directly to Agent until such time that Agent shall have been paid the full amount of any underlying Guaranteed Obligation which is the basis of such Contribution Claim, together with all other outstanding claims by Agent on account of the Guaranteed Obligations.
Section 4.3 Payments Held in Trust. Notwithstanding anything to the contrary contained in this Guaranty, in the event that Guarantor should receive any funds, payments, claims and/or distributions which are prohibited by this Guaranty, Guarantor agrees to hold in trust for Agent and Lender an amount equal to the amount of all funds, payments, claims and/or distributions so received, and agrees that it shall have absolutely no dominion over the amount of such funds, payments, claims and/or distributions so received except to pay such funds, payments, claims and/or distributions promptly to Agent and Lender, and Guarantor covenants promptly to pay the same to Agent and Lender.
Section 4.4 Liens Subordinate. Guarantor agrees that any liens, security interests, judgment liens, charges or other encumbrances upon Borrower’s assets securing payment of the Guarantor Claims shall be and remain inferior and subordinate to any liens, security interests, judgment liens, charges or other encumbrances upon Borrower’s assets securing payment of the Guaranteed Obligations, regardless of whether such encumbrances in favor of Guarantor or Agent and Lender presently exist or are hereafter created or attach. Without the prior written consent of Agent, Guarantor shall not (i) exercise or enforce any creditor’s rights it may have against Borrower, or (ii) foreclose, repossess, sequester or otherwise take steps or institute any action or proceedings (judicial or otherwise, including, without limitation, the commencement of, or the joinder in, any liquidation, bankruptcy, rearrangement, debtor’s relief or insolvency proceeding) to enforce any liens, mortgages, deeds of trust, security interests, collateral rights, judgments or other encumbrances on the assets of Borrower held by Guarantor. The foregoing shall in no manner vitiate or amend, nor be deemed to vitiate or amend, any prohibition in the Loan Documents against Borrower granting liens or security interests in any of its assets to any Person other than Agent.
ARTICLE 5
COVENANTS
Section 5.1 Definitions. As used in this Article 5, the following terms shall have the respective meanings set forth below:
11
(a) “Liquid Asset” shall mean any of the following, but only to the extent owned individually, free of all security interests, liens, pledges, charges or any other encumbrance: (a) cash, (b) certificates of deposit (with a maturity of two years or less) issued by, or savings account with, any bank or other financial institution reasonably acceptable to Agent, (c) marketable securities listed on the New York Stock Exchange or NASDAQ (or any successors thereto) or any other national or international exchange reasonably acceptable to Agent, marked to market, and (d) any line of credit running directly to the Guarantor; provided that Liquid Assets shall not include any asset that is a part of the Property or that is otherwise part of the collateral for the Loan other than distributions made to Guarantor from Borrower (directly or indirectly) to the extent expressly permitted by the Loan Documents.
(b) “Net Worth” shall mean, as of a given date, (i) a Guarantor’s total assets as of such date (exclusive of any interest in the Property or the Collateral or in any other asset that is part of the collateral for the Loan) less (ii) Guarantor’s total liabilities as of such date (exclusive of any liability under the Loan Documents), determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles.
Section 5.2 Covenants. Until all of the Obligations and Guaranteed Obligations have been paid in full, Guarantor collectively (i) shall maintain, in the aggregate, (x) a Net Worth of not less than $90,000,000.00 (the “Net Worth Threshold”) and (y) Liquid Assets of not less than $8,000,000.00 (the “Liquid Assets Threshold”) and (ii) shall not sell, pledge, mortgage or otherwise transfer any of its assets, or any interest therein, on terms materially less favorable than would be obtained in an arms-length transaction or if such transaction would cause the collective Net Worth of Guarantor to fall below the Net Worth Threshold or the collective Liquid Assets of Guarantor to fall below the Liquid Assets Threshold.
Section 5.3 Prohibited Transactions. Guarantor shall not, at any time while a default in the payment of the Guaranteed Obligations has occurred and is continuing, either (i) enter into or effectuate any transaction with any Affiliate that would reduce the collective Net Worth of Guarantor below the Net Worth Threshold (including the payment of any dividend or distribution to a shareholder, or the redemption, retirement, purchase or other acquisition for consideration of any stock or other ownership interest in Guarantor) or (ii) sell, pledge, mortgage or otherwise transfer to any Person any of Guarantor’s assets, or any interest therein, in each case, other than for reasonably equivalent value.
Section 5.4 Financial Statements. Each Guarantor (as to itself only) shall deliver to Agent:
(a) within 120 days after the end of each calendar year, (x) with respect to Principal Guarantors, an unaudited balance sheet and (y) with respect to Entity Guarantor, an audited balance sheet (provided, that, if the financials of Entity Guarantor are publicly available, such balance sheet may be unaudited), in each case, of such Guarantor as of the end of such calendar year substantially similar (in form and content) to the balance sheet delivered to Agent in connection with the origination of the Loan, determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles, (A) setting forth in reasonable detail (provided that setting forth
12
such Guarantor’s Net Worth in the level of detail reflected in such Guarantor financial statements delivered in connection with the closing of the Loan shall be reasonable) such Guarantor’s Net Worth and Liquid Assets as of the end of such prior calendar year and based on such balance sheet, and (B) certifying (or accompanied by a certificate signed by a representative of Guarantor certifying) that such annual financial statements are true, correct, accurate and complete in all material respects and fairly present, as of the date of such financial statements, the financial condition and results of the operations of such Guarantor determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles;
(b) within 40 days after the end of each calendar quarter, (x) with respect to Principal Guarantors, an unaudited balance sheet and (y) with respect to Entity Guarantor, an audited balance sheet (provided, that, if the financials of Entity Guarantor are publicly available, such balance sheet may be unaudited), in each case, of such Guarantor as of the end of such quarter substantially similar (in form and content) to the balance sheet delivered to Agent in connection with the origination of the Loan, determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles, (A) setting forth in reasonable detail any material changes from the last annual financial statement delivered to Agent by such Guarantor and setting forth in reasonable detail (provided that setting forth such Guarantor’s Net Worth in the level of detail reflected in such Guarantor’s financial statements delivered in connection with the closing of the Loan shall be reasonable) such Guarantor’s Net Worth and Liquid Assets as of the end of such prior calendar quarter and based on the foregoing quarterly financial statements, and (B) certifying (or accompanied by a certificate signed by a representative of Guarantor certifying) that such quarterly financial statements are true, correct, accurate and complete in all material respects and fairly present, as of the date of such financial statements, the financial condition and results of the operations of such Guarantor (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles;
(c) within 30 days after the date filed, a complete copy of such Guarantor’s tax return certified by such Guarantor; and
(d) within 20 days after request by Agent, such other financial information with respect to such Guarantor as Agent may reasonably request.
Section 5.5 Additional Covenants
(a) Existence; Compliance with Legal Requirements. Guarantor shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence and all rights, licenses, permits, franchises and applicable governmental authorizations necessary for the operation of its business and comply with all Legal Requirements applicable to it and its assets. Guarantor shall not engage in any dissolution, liquidation or consolidation or merger with or into any other business entity without obtaining the prior consent of Agent.
(b) Litigation. Guarantor shall give prompt notice to Agent of any litigation or governmental proceedings pending or threatened in writing against Guarantor which, if adversely determined, could reasonably be expected to materially adversely affect Guarantor’s condition
13
(financial or otherwise) or business (including Guarantor’s ability to perform its Obligations hereunder or under the other Loan Documents to which it is a party).
(c) Patriot Act. Guarantor will use its good faith and commercially reasonable efforts to comply with the Patriot Act and all applicable requirements of Governmental Authorities having jurisdiction over Guarantor, including those relating to money laundering and terrorism.
(d) Further Assurances. Guarantor shall, at Guarantor’s sole cost and expense:
(i) cure any defects in the execution and delivery of the Loan Documents to which Guarantor is a party and execute and deliver, or cause to be executed and delivered, to Agent such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to correct any omissions in the Loan Documents to which Guarantor is a party, as Agent may reasonably require; and
(ii) so long as it does not expand the obligations or materially reduce the benefits to Borrower or Guarantor under the Loan Documents, except, in each case, other than to a de minimis extent, do and execute all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Guaranty and the other Loan Documents to which Guarantor is a party, as Agent may reasonably require from time to time.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Waiver. No failure to exercise, and no delay in exercising, on the part of Agent, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of Agent hereunder shall be in addition to all other rights provided by law. No modification or waiver of any provision of this Guaranty, nor any consent to any departure therefrom, shall be effective unless in writing and no such consent or waiver shall extend beyond the particular case and purpose involved. No notice or demand given in any case shall constitute a waiver of the right to take other action in the same, similar or other instances without such notice or demand.
Section 6.2 Notices. All notices, demands, requests, consents, approvals or other communications (any of the foregoing, a “Notice”) required, permitted or desired to be given hereunder shall be in writing and shall be sent by telefax (with answer back acknowledged) or delivered by hand or by reputable overnight courier, addressed to the party to be so notified at its address hereinafter set forth, or to such other address as such party may hereafter specify in accordance with the provisions of this Section 6.2. Any Notice shall be deemed to have been received: (a) on the date of sending by telefax if sent during business hours on a Business Day (otherwise on the next Business Day), (b) on the date of delivery by hand if delivered during business hours on a Business Day (otherwise on the next Business Day), and (c) on the next Business Day if sent by an overnight commercial courier, in each case addressed to the parties as follows:
If to Agent: DL RCF I Loan Holdings, LLC
c/o Derby Lane Partners LLC
14
12 East 49th Street, Suite 1519
New York, New York 10017
Attention: Urian Yap
Email: [email protected]
with a copy to: Gibson Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention: Matthew Kidd, Esq.
Email: [email protected]
If to Principal Guarantors:
Adam Friedberg
3834 N. Lakewood Avenue
Chicago, Illinois 60613
Email: [email protected]
Anthony Hrusovsky
531 E Scranton Avenue
Lake Bluff, Illinois 60044
Email: [email protected]
Peter Koch
1509 Kaywood Lane
Glenview, Illinois 60025
Email: [email protected]
with a copy to: Patzik, Frank & Samotny Ltd.
200 South Wacker Drive – Suite 2700
Chicago, Illinois 60606
Attention: John W. Morse
Facsimile No. (312) 551-1101
Email: [email protected]
If to Entity Guarantor:
ACRES Commercial Realty Corp.
390 RXR Plaza
Uniondale, New York 11556
Attention: Jaclyn Jesberger
Email: [email protected]
with a copy to: Murland Dainoff LLC
555 E. Lancaster Avenue, Suite 501
Radnor, Pennsylvania 19087
Attention: Harris A. Dainoff, Esquire
Email: [email protected]
15
Any party may change the address to which any such Notice is to be delivered by furnishing ten (10) days’ written notice of such change to the other parties in accordance with the provisions of this Section 6.2. Notices shall be deemed to have been given on the date set forth above, even if there is an inability to actually deliver any Notice because of a changed address of which no Notice was given or there is a rejection or refusal to accept any Notice offered for delivery. Notice for any party may be given by its respective counsel. Additionally, Notice from Agent may also be given by Servicer.
Section 6.3 Governing Law; Jurisdiction; Service of Process. (a) THIS GUARANTY WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY GUARANTOR AND ACCEPTED BY AGENT IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THE NOTE WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION RELATED HERETO, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS GUARANTY AND/OR THE OTHER LOAN DOCUMENTS, AND THIS GUARANTY AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST AGENT OR GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY, AT AGENT’S OPTION, BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND GUARANTOR WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. EACH GUARANTOR DOES HEREBY DESIGNATE AND APPOINT:
Corporation Service Company
19 West 44th Street, Suite 200
New York, NY 10036
16
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND EACH GUARANTOR AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO SUCH GUARANTOR IN THE MANNER PROVIDED HEREIN SHALL CONCLUSIVELY BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON SUCH GUARANTOR IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. EACH GUARANTOR (I) SHALL GIVE PROMPT NOTICE TO AGENT OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS AND WHICH SUBSTITUTE AGENT SHALL BE THE SAME AGENT DESIGNATED BY BORROWER UNDER THE LOAN AGREEMENT), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY GUARANTOR IN ANY OTHER JURISDICTION.
Section 6.4 Invalid Provisions. If any provision of this Guaranty is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Guaranty, such provision shall be fully severable and this Guaranty shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Guaranty, and the remaining provisions of this Guaranty shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Guaranty, unless such continued effectiveness of this Guaranty, as modified, would be contrary to the basic understandings and intentions of the parties as expressed herein.
Section 6.5 Amendments. This Guaranty may be amended only by an instrument in writing executed by the party(ies) against whom such amendment is sought to be enforced.
Section 6.6 Parties Bound; Assignment. This Guaranty shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, permitted assigns, heirs and legal representatives. Agent shall have the right to assign or transfer its rights under this Guaranty in connection with any assignment of the Loan and the Loan Documents. Any assignee or transferee of Agent shall be entitled to all the benefits afforded to Agent under this Guaranty. Guarantor shall not have the right to assign or transfer its rights or obligations under this Guaranty without the prior written consent of Agent, and any attempted assignment without such consent shall be null and void.
Section 6.7 Headings. Section headings are for convenience of reference only and shall in no way affect the interpretation of this Guaranty.
17
Section 6.8 Recitals. The recitals and introductory paragraphs hereof are a part hereof, form a basis for this Guaranty and shall be considered prima facie evidence of the facts and documents referred to therein.
Section 6.9 Counterparts. To facilitate execution, this Guaranty may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Guaranty to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto. Any signature page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature pages.
Section 6.10 Rights and Remedies. If Guarantor becomes liable for any indebtedness owing by Borrower to Agent or any Lender, by endorsement or otherwise, other than under this Guaranty, such liability shall not be in any manner impaired or affected hereby and the rights of Agent and Lender hereunder shall be cumulative of any and all other rights that Agent or any Lender may ever have against Guarantor. The exercise by Agent and Lender of any right or remedy hereunder or under any other instrument, or at law or in equity, shall not preclude the concurrent or subsequent exercise of any other right or remedy.
Section 6.11 Entirety. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF GUARANTOR AND AGENT AND LENDER WITH RESPECT TO GUARANTOR’S GUARANTY OF THE GUARANTEED OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR AND AGENT AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF DEALING BETWEEN GUARANTOR AND AGENT AND LENDER, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND AGENT AND LENDER.
Section 6.12 Waiver of Right To Trial By Jury. GUARANTOR AND, BY ITS ACCEPTANCE HEREOF, AGENT AND LENDER, EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE NOTE, THE MORTGAGE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY GUARANTOR
18
AND, BY ITS ACCEPTANCE HEREOF, AGENT AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF GUARANTOR, LENDER AND AGENT IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE OTHER PARTY.
Section 6.13 New York Provisions. Guarantor acknowledges and agrees that this Guaranty is, and is intended to be, an instrument for the payment of money only, as such phrase is used in Section 3213 of the Civil Practice Law and Rules of the State of New York, that Guarantor has been fully advised by its counsel of Lender’s rights and remedies pursuant to such Section 3213 and that Guarantor expressly waives any right, and hereby agrees not, to assert that this Guaranty is not such an instrument.
Section 6.14 Cooperation. Guarantor acknowledges that Agent and Lender and their successors and assigns may effectuate a “Secondary Market Transaction” in accordance with Article 9 of the Loan Agreement. Subject to the terms, conditions and limitations set forth in the Loan Agreement, Guarantor shall cooperate with Agent and Lender in effecting any such Secondary Market Transaction and shall provide (or cause Borrower to provide) such information and materials as may be required or necessary pursuant to Section 9.1 and Section 9.2 of the Loan Agreement. Agent and Lender shall be permitted to share all such information with the investment banking firms, rating agencies, accounting firms, law firms and other third party advisory firms involved with the Loan and the Loan Documents or the applicable Secondary Market Transaction, provided that such parties are advised of the confidential nature of any information that is clearly marked as confidential information or that is not otherwise publicly available or known to Agent from another source. It is understood that the information provided by Guarantor to Agent and Lender may ultimately be disclosed to purchasers and potential purchasers in connection with a Secondary Market Transaction. Agent, Lender, and all of the aforesaid third party advisers and professional firms shall be entitled to rely on the information supplied by, or on behalf of, Guarantor in the form as provided by Guarantor. Agent and Lender may publicize the existence of the Loan in connection with its marketing for a Secondary Market Transaction or otherwise as part of its business development.
Section 6.15 Reinstatement in Certain Circumstances. If at any time any payment of the principal of or interest under the Note or any other amount payable by Borrower under the Loan Documents is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of Borrower or otherwise, Guarantor’s obligations hereunder with respect to such payment shall be reinstated as though such payment had been due but not made at such time.
Section 6.16 Gender; Number; General Definitions. Unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein, (a) words used in this Guaranty may be used interchangeably in the singular or plural form, (b) any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, (c) the word “Borrower” shall mean “each Borrower and any subsequent owner or owners of the Property or any part thereof or interest therein”, (d) the word “Agent” shall mean “Agent and any subsequent holder of the Note”, (e) the word “Note” shall mean “the Note and any other evidence of indebtedness secured
19
by the Loan Agreement”, (f) the word “Property” shall include any portion of the Property and any interest therein, and (g) the phrases “attorneys’ fees”, “legal fees” and “counsel fees” shall include any and all out-of-pocket attorneys’, paralegal and law clerk fees and disbursements of outside counsel, including, but not limited to, fees and disbursements at the pre-trial, trial and appellate levels, incurred or paid by Agent in protecting its interest in the Property, the Collateral, the Leases and/or the Rents and/or in enforcing its rights hereunder.
Section 6.17 Joint and Several. If there is more than one Guarantor, the obligations and liabilities of each Guarantor hereunder are joint and several. Without in any way limiting the obligations of Guarantor hereunder, the parties hereto acknowledge that the defined term “Guarantor” collectively includes each individual Guarantor and that it is the intent of the parties hereto in determining whether (a) a breach of a representation or a covenant has occurred or (b) there has occurred a default hereunder, that any such breach, occurrence, or event with respect to any individual Guarantor shall be deemed to be such a breach, occurrence or event with respect to every Guarantor and that each individual Guarantor need not have been involved with such breach, occurrence or event in order for the same to be deemed such a breach, occurrence or event with respect to every individual Guarantor.
Section 6.18 Fully Recourse. All of the terms and provisions of this Guaranty are recourse obligations of Guarantor and not restricted by any limitation on personal liability set forth in any of the Loan Documents.
Section 6.19 Exculpation. Section 9.4 of the Loan Agreement is hereby incorporated by reference as if set forth at length herein.
Section 6.20 Unsecured Obligations. The obligations of Guarantor under this Guaranty are not secured by the lien of the Mortgage or the security interests or other collateral described in the Mortgage or the other Loan Documents, it being the intent of Agent and Lender to create separate obligations of Guarantor hereunder which can be enforced against Guarantor without regard to the existence of the Mortgage or other Loan Documents or the liens or security interests created therein.
Section 6.21 Incorporation by Reference. To the extent that any provisions or defined terms contained in any other Loan Document (including, without limitation, the Loan Agreement) are used herein or incorporated herein by reference, and such other Loan Document is terminated or otherwise satisfied prior to the termination of this Guaranty, then, for the avoidance of doubt, such provisions and/or defined terms shall survive until the satisfaction of the Obligations without regard to the fact that the Loan Document originally containing the same has been otherwise terminated or satisfied.
Section 6.22 Limitation on Liability. Notwithstanding the provisions of this Guaranty to the contrary:
20
Section 6.23 Non-Duplication of Guaranty Payments. Payments by Guarantor of amounts due hereunder shall be without duplication of any amounts paid for the identical liability under the Guaranty (as defined in the Loan Agreement), the Guaranty of Interest and Carry Costs and/or the Guaranty of Completion by Guarantor in favor of Agent of even date herewith (e.g., if Agent makes a claim requiring Guarantor to satisfy Borrower’s obligation to pay certain Taxes under the Guaranty of Completion and also a claim under this Guaranty to pay the same Taxes, Guarantor’s payment of such obligation pursuant to the Guaranty of Completion shall satisfy Guarantor’s obligation hereunder to pay the same, and vice versa).
[NO FURTHER TEXT ON THIS PAGE]
21
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and year first above written.
GUARANTOR:
/s/ Adam Friedberg |
Adam Friedberg, an individual |
/s/ Anthony Hrusovsky |
Anthony HrusovSKy, an individual |
/s/ Peter Koch |
Peter koch, an individual |
ACRES COMMERCIAL REALTY CORP.,
a Maryland corporation
By: |
/s/ Mark S. Fogel |
|
Name: Mark S. Fogel Title: President |
[Signature Page to Guaranty of Retail Space]
Exhibit 10.3
GUARANTY OF RECOURSE OBLIGATIONS
This GUARANTY OF RECOURSE OBLIGATIONS (this “Guaranty”) is executed as of September 12, 2025 by ADAM FRIEDBERG, an individual, having an address at 3834 N. Lakewood Avenue, Chicago, Illinois 60613, ANTHONY HRUSOVSKY, an individual, having an address at 531 E Scranton Avenue, Lake Bluff, Illinois 60044 and PETER KOCH, an individual, having an address at 1509 Kaywood Lane, Glenview, Illinois 60025 (collectively, “Principal Guarantors”) and ACRES COMMERCIAL REALTY CORP., a Maryland corporation, having an address at 390 RXR Plaza, Uniondale, New York 11556 (“Entity Guarantor”; Entity Guarantor, together with Principal Guarantors, individually and collectively, the “Guarantor”), for the benefit of DL RCF I LOAN HOLDINGS, LLC, a Delaware limited liability company, having an address at c/o Derby Lane Partners LLC, 12 E. 49th Street, Suite 1519, New York, New York 10017, in its capacity as administrative agent (together with its successors and/or assigns, “Agent”), for itself and on behalf of any Lender (as that term is defined in the Loan Agreement).
W I T N E S S E T H:
A. Lender is prepared to make a loan to 65 E. WACKER HOLDINGS II, LLC, a Delaware limited liability company (“Borrower”) in the maximum principal amount of up to SIXTY-TWO MILLION FOUR HUNDRED THOUSAND AND NO/100 DOLLARS ($62,400,000.00) (the “Loan”) pursuant to that certain Loan Agreement, dated as of the date hereof, by and among Borrower, Agent, and Lender (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”), which Loan is evidenced by, among other things, the Note (as defined in the Loan Agreement) and is secured by, among other things, the Mortgage (as defined in the Loan Agreement), encumbering certain real property (the “Property”) more particularly described therein. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Loan Agreement.
B. Lender is not willing to make and Agent is not willing to administer the Loan, or otherwise extend credit, to Borrower unless Guarantor unconditionally guarantees the payment and performance to Agent and Lender of the Guaranteed Obligations (as herein defined).
C. Guarantor is the owner of direct or indirect interests in Borrower, and Guarantor will benefit from Agent administering and Lender making the Loan to Borrower.
NOW, THEREFORE, as an inducement to Lender to make and Agent to administer the Loan to Borrower and to extend such additional credit as Agent and Lender may from time to time agree to extend under the Loan Documents, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
ARTICLE 1
NATURE AND SCOPE OF GUARANTY
Section 1.1 Guaranty of Obligation.
(a) Guarantor hereby absolutely, irrevocably and unconditionally guarantees to Agent and Lender and their successors and assigns the payment and performance of the Guaranteed Obligations (as defined below) as and when the same shall be due and payable, whether by lapse of time, by acceleration of maturity or otherwise. Guarantor hereby irrevocably and unconditionally covenants and agrees that it is liable for the Guaranteed Obligations as a primary obligor.
(b) As used herein, the term “Guaranteed Obligations” means (i) the Section 9.4 Liabilities (as defined in Section 9.4.4 of the Loan Agreement), and (ii) the full payment of all of the Obligations (as defined in the Loan Agreement) in the event that any Springing Recourse Event (as defined in the Loan Agreement) occurs.
(c) Notwithstanding anything to the contrary in this Guaranty or in any of the other Loan Documents, neither Agent nor any Lender shall be deemed to have waived any right which Agent and Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Obligations against Borrower or to require that all collateral shall continue to secure all of the Obligations owing to Agent and Lender in accordance with the Loan Documents.
(d) Nothing herein contained is intended to limit or expand any obligations of Guarantor under any other guaranty given in connection with the Loan Agreement. Notwithstanding the foregoing, Guarantor shall not be required to make payments under this Guaranty to the extent Guarantor has already made a payment in respect of the same obligations under the Guaranty of Interest and Carry Costs or the Guaranty of Completion.
Section 1.2 Nature of Guaranty. This Guaranty is an irrevocable, absolute, continuing guaranty of prompt payment and performance and not a guaranty of collection. The obligations of Guarantor under this Guaranty shall be primary, irrevocable, direct and not conditional or contingent upon pursuit by Agent or any Lender of any remedies it may have against Borrower under the Loan Agreement or the other Loan Documents or any remedies it might have against any other Person. This Guaranty may not be revoked by Guarantor and shall continue to be effective with respect to any Guaranteed Obligations arising or created after any attempted revocation by Guarantor and after (if Guarantor is a natural person) Guarantor’s death (in which event this Guaranty shall be binding upon Guarantor’s estate and Guarantor’s legal representatives and heirs). The fact that at any time or from time to time the Guaranteed Obligations may be increased or reduced or otherwise modified in any manner or to any extent shall not release, diminish or discharge the obligation of Guarantor to Agent and Lender with respect to the Guaranteed Obligations. This Guaranty may be enforced by Agent and any subsequent holder of the Note and shall not be discharged by the assignment or negotiation of all or any part of the Note.
Section 1.3 Guaranteed Obligations Not Reduced by Offset. The Guaranteed Obligations and the liabilities and obligations of Guarantor to Agent and Lender hereunder shall
2
not be reduced, discharged or released because or by reason of any existing or future offset, claim or defense of Borrower or any other party (excluding the defense of payment and performance in full of the Guaranteed Obligations) against Agent or any Lender or against payment of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise. Agent’s and Lender’s rights under this Guaranty shall be in addition to all rights of Agent and Lender under the Loan Agreement, the Note, the Mortgage and the other Loan Documents. FURTHER, PAYMENTS MADE BY GUARANTOR UNDER THIS GUARANTY SHALL NOT REDUCE IN ANY RESPECT BORROWER’S OBLIGATIONS AND LIABILITIES UNDER THE LOAN AGREEMENT, THE NOTE, THE MORTGAGE AND THE OTHER LOAN DOCUMENTS EXCEPT WITH RESPECT TO, AND TO THE EXTENT OF, BORROWER’S OBLIGATION AND LIABILITY FOR THE PAYMENT MADE BY GUARANTOR. Further, no defense of any kind or nature which Guarantor has or may hereafter have against Agent or Lender shall be available hereunder to Guarantor, other than the defense that the Guaranteed Obligations have been paid or performed in full.
Section 1.4 Payment By Guarantor. Any payment required to be made by Guarantor pursuant to this Guaranty shall be made without presentment, protest, notice of protest, or any other notice whatsoever, all such notices being hereby waived by Guarantor to the extent not prohibited by non-waivable provisions of applicable Legal Requirements (any such waivable provisions being hereby expressly and irrevocably waived by Guarantor) and Guarantor shall pay in lawful money of the United States of America, the amount due on the Guaranteed Obligations to Agent within ten (10) Business Days after notice from Agent, at its address set forth herein. Any demand made by Agent may be made at any time coincident with or after the time for payment of all or part of the Guaranteed Obligations and may be made from time to time with respect to the same or different items of Guaranteed Obligations. Such demand shall be deemed made, given and received in accordance with the notice provisions hereof. In the event any individual Guarantor commences a case under the Bankruptcy Code or an involuntary petition under the Bankruptcy Code is filed against such Guarantor, then this Guaranty shall become immediately due and payable without demand (which demand is specifically waived) against such Guarantor with regard to all Guaranteed Obligations unless, in the case of an involuntary case under the Bankruptcy Code only, the remaining Persons comprising Guarantor collectively continue to satisfy the Net Worth Threshold and the Liquid Assets Threshold set forth in Section 5.2 hereof.
Section 1.5 No Duty To Pursue Others. It shall not be necessary for Agent or Lender (and Guarantor hereby waives any rights which Guarantor may have to require Agent or Lender), in order to enforce the obligations of Guarantor hereunder, first to (i) institute suit or exhaust its remedies against Borrower or others liable on the Loan or the Guaranteed Obligations or any other Person, (ii) enforce Agent and Lender’s rights against any collateral which shall ever have been given to secure the Loan, (iii) enforce Agent’s and Lender’s rights against any other guarantors of the Guaranteed Obligations, (iv) join Borrower or any others liable on the Guaranteed Obligations in any action seeking to enforce this Guaranty, (v) exhaust any remedies available to Agent or Lender against any collateral which shall ever have been given to secure the Loan, or (vi) resort to any other means of obtaining payment of the Guaranteed Obligations. Neither Agent nor Lender shall be required to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations.
3
Section 1.6 Waivers. Guarantor agrees to the provisions of the Loan Documents and, to the extent not prohibited by non-waivable provisions of applicable Legal Requirements (any such waivable provisions being hereby expressly and irrevocably waived by Guarantor), hereby waives notice of (i) any loans or advances made by Agent or any Lender to Borrower, (ii) acceptance of this Guaranty, (iii) any amendment or extension of the Note, the Mortgage, the Loan Agreement or any other Loan Document, (iv) the execution and delivery by Borrower, Agent and Lender of any other loan or credit agreement or of Borrower’s execution and delivery of any promissory note or other document arising under the Loan Documents or in connection with the Property or the Collateral, (v) the occurrence of (A) any breach by Borrower of any of the terms or conditions of the Loan Agreement or any of the other Loan Documents, or (B) an Event of Default, (vi) Agent’s and Lender’s transfer or disposition of the Guaranteed Obligations, or any part thereof, (vii) the sale or foreclosure (or the posting or advertising for the sale or foreclosure) of any collateral for the Guaranteed Obligations, (viii) protest, proof of non-payment or default by Borrower, or (ix) any other action at any time taken or omitted by Agent or any Lender and, generally, all demands and notices of every kind in connection with this Guaranty (other than any applicable notices that are expressly and specifically required under this Guaranty), the Loan Documents, any documents or agreements evidencing, securing or relating to any of the Guaranteed Obligations and/or the obligations hereby guaranteed. Notwithstanding the foregoing or anything to the contrary contained in this Guaranty, Guarantor does not waive the right to receive any notices from Lender to the extent such notices are expressly required to be given to Guarantor by Agent under the Loan Documents but the failure to provide such notices shall not give rise to any defenses by Guarantor hereunder or otherwise limit Agent’s or Lender’s rights hereunder (other than to the extent any grace periods under the Loan Documents are extended as a result thereof).
Section 1.7 Payment of Expenses. In the event that Guarantor shall breach or fail to timely perform any provisions of this Guaranty, Guarantor shall, within ten (10) Business Days’ after written demand by Agent, pay Agent (on behalf of Lender) all actual out-of-pocket costs and expenses (including court costs and out-of-pocket attorneys’ fees of outside counsel) incurred by Agent or Lender in the enforcement hereof or the preservation of Agent’s or Lender’s rights hereunder, together with interest thereon at the Default Rate from and after the expiration of such ten (10) Business Day period until the date of payment to Agent. The covenant contained in this Section shall survive the payment and performance of the Guaranteed Obligations. Notwithstanding the foregoing, if a court of competent jurisdiction shall find in favor of the Borrower and/or Guarantor, then neither Borrower nor Guarantor shall have any obligation under this provision.
Section 1.8 Effect of Bankruptcy. In the event that pursuant to any insolvency, bankruptcy, reorganization, receivership or other debtor relief law or any judgment, order or decision thereunder, (a) Agent or Lender must rescind or restore any payment or any part thereof received by Agent or a Lender in satisfaction of the Guaranteed Obligations, as set forth herein, any prior release or discharge from the terms of this Guaranty given to Guarantor by Agent or a Lender shall be without effect and this Guaranty shall remain (or shall be reinstated to be) in full force and effect and (b) notwithstanding any other provision of this Guaranty, (i) all amounts hereunder shall become immediately due and payable and (ii) Guarantor hereby waives all demands and notices of every kind. It is the intention of Borrower and Guarantor that Guarantor’s
4
obligations hereunder shall not be discharged except by Guarantor’s performance of such obligations and then only to the extent of such performance.
Section 1.9 Waiver of Subrogation, Reimbursement and Contribution. Notwithstanding anything to the contrary contained in this Guaranty, Guarantor hereby unconditionally and irrevocably waives, releases and abrogates any and all rights it may now or hereafter have under any agreement, at law or in equity (including, without limitation, any law subrogating Guarantor to the rights of Agent or any Lender), to assert any claim against or seek contribution, indemnification or any other form of reimbursement from Borrower or any other party liable for the payment of any or all of the Guaranteed Obligations for any payment made by Guarantor under or in connection with this Guaranty or otherwise, until the Obligations (including, without limitation, any Guaranteed Obligations) have been indefeasibly repaid in full (subject to reinstatement as provided in Section 1.8 above).
ARTICLE 2
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR’S OBLIGATIONS
Guarantor hereby consents and agrees to each of the following and agrees that Guarantor’s obligations under this Guaranty shall not be released, diminished, impaired, reduced or adversely affected by any of the following and waives any common law, equitable, statutory or other rights (including, without limitation, rights to notice) which Guarantor might otherwise have as a result of or in connection with any of the following:
Section 2.1 Modifications. Any renewal, extension, increase, modification, alteration or rearrangement of all or any part of the Guaranteed Obligations, the Note, the Mortgage, the Loan Agreement, the other Loan Documents or any other document, instrument, contract or understanding between Borrower, Agent and Lender or any other parties pertaining to the Guaranteed Obligations or any failure of Agent to notify Guarantor of any such action. Except as otherwise expressly limited in any other Loan Document, in furtherance and not in limitation of the foregoing, Guarantor authorizes Agent, without giving notice to Guarantor or obtaining Guarantor’s consent and without affecting the liability of Guarantor, from time to time to: (i) approve modifications to the Property, the Project, the Construction Schedule, the Guaranteed Work (as defined in the Guaranty of Completion), the Plans and Specifications, the Business Plan, the Development Agreement, the Construction Budget, and the Annual Budget as and when requested by Borrower; (ii) change the terms or conditions of disbursement of the Loan or the Loan proceeds; (iii) otherwise modify or amend the Loan Documents, including, without limitation, making changes in the terms of repayment of the Loan or modifying, extending or renewing payment dates; releasing or subordinating security in whole or in part; changing the interest rate; or advancing additional funds in its discretion for purposes related to the purposes specified in the Loan Agreement; or (iv) assign this Guaranty in whole or in part in accordance with the assignment of all or any portion of the Loan by Agent or any Lender. Guarantor hereby irrevocably and unconditionally covenants and agrees that it is liable for the Guaranteed Obligations as a primary obligor. Following a foreclosure of the Pledge Agreement or the Pledge Agreement (Master Tenant), the foregoing modifications may not be made to the extent they would increase or expand the obligations of Guarantor hereunder.
5
Section 2.2 Intentionally Omitted.
Section 2.3 Condition of Borrower or Guarantor. The insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of Borrower, Guarantor or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of Borrower or Guarantor or any sale, lease or transfer of any or all of the assets of Borrower or Guarantor or any changes in the direct or indirect shareholders, partners or members, as applicable, of Borrower or Guarantor; or any reorganization of Borrower or Guarantor.
Section 2.4 Invalidity of Guaranteed Obligations. The invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations or any document or agreement executed in connection with the Guaranteed Obligations for any reason whatsoever, including, without limitation, the fact that (i) the Guaranteed Obligations or any part thereof exceeds the amount permitted by law, (ii) the act of creating the Guaranteed Obligations or any part thereof is ultra vires, (iii) the officers or representatives executing the Note, the Mortgage, the Loan Agreement or the other Loan Documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (iv) the Guaranteed Obligations violate applicable usury laws, (v) Borrower has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from Borrower, other than the defense of actual payment or performance in full of the Guaranteed Obligations, (vi) the creation, performance or repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible or unenforceable, or (vii) the Note, the Mortgage, the Loan Agreement or any of the other Loan Documents have been forged or otherwise are irregular or not genuine or authentic, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other Person be found not liable on the Guaranteed Obligations or any part thereof for any reason.
Section 2.5 Release of Obligors. Any full or partial release of the liability of Borrower for the Guaranteed Obligations or any part thereof, or of any co-guarantors, or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations, or any part thereof, it being recognized, acknowledged and agreed by Guarantor that Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support from any other Person, and Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that other Persons (including Borrower) will be liable to pay or perform the Guaranteed Obligations or that Agent or Lender will look to other Persons (including Borrower) to pay or perform the Guaranteed Obligations.
Section 2.6 Other Collateral. The taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations.
Section 2.7 Release of Collateral. Any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of any collateral, property or security at any time
6
existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations.
Section 2.8 Care and Diligence. The failure of Agent, Lender or any other party to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of any collateral, property or security, including, but not limited to, any neglect, delay, omission, failure or refusal of Agent or Lender (i) to take or prosecute any action for the collection of any of the Guaranteed Obligations, or (ii) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose upon any security therefor, or (iii) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guaranteed Obligations.
Section 2.9 Unenforceability. The fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by Guarantor that Guarantor is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the collateral for the Guaranteed Obligations.
Section 2.10 Offset. Any existing or future right of offset, claim or defense of Borrower against Agent or Lender, or any other Person (including, without limitation, Guarantor), or against payment of the Guaranteed Obligations, whether such right of offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise (excluding the defense of actual payment and performance in full of the Guaranteed Obligations).
Section 2.11 Merger. The reorganization, merger or consolidation of Borrower or Guarantor into or with any other Person.
Section 2.12 Preference. Any payment by Borrower to Agent or Lender is held to constitute a preference under the Bankruptcy Code or for any reason Agent or any Lender is required to refund such payment or pay such amount to Borrower or to any other Person.
Section 2.13 Other Actions Taken or Omitted. Any other action taken or omitted to be taken with respect to the Loan Documents, the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly described herein, which obligation shall be deemed satisfied only upon the full and final payment and satisfaction of the Guaranteed Obligations.
Section 2.14 Independent Obligations. The obligations of Guarantor under this Guaranty are independent of Borrower’s obligations under the Loan Agreement, the Note and the other Loan Documents, and a separate action or actions may be brought and prosecuted against
7
Guarantor to enforce this Guaranty, irrespective of whether an action is brought against Borrower or whether Borrower is joined in any such action or more successive and/or concurrent actions may be brought hereon against Guarantor either in the same action, if any, brought against Borrower or in separate actions, as often as Agent or Lender, in their sole discretion, may deem advisable. To the extent it may lawfully do so, Guarantor, on behalf of itself and on behalf of each Person claiming by, through or under Guarantor, hereby irrevocably and unconditionally waives any right to object to Agent or Lender bringing simultaneous actions to (i) recover the Guaranteed Obligations against Borrower under the Loan Agreement, the Note or any other Loan Document, at law or in equity, or (ii) recover any amounts due under this Guaranty. For the avoidance of doubt, indefeasible payments made hereunder by Guarantor in respect of the Guaranteed Obligations shall be applied towards the Guaranteed Obligations pursuant to this Agreement.
Section 2.15 Survival. This Guaranty shall survive the exercise of remedies following an Event of Default under the Loan Agreement or the other Loan Documents, including, but not limited to a foreclosure of the Mortgage and/or any exercise of remedies under the Pledge Agreement or the Pledge Agreement (Master Tenant) by Agent or Lender, and shall remain in full force and effect until all Obligations and other sums due under the Loan Agreement and the other Loan Documents have been fully satisfied and indefeasibly paid in full to Agent or Lender, as applicable, and the Guaranteed Obligations accruing through the date of such repayment have been fully performed and satisfied by Guarantor.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
To induce Agent and Lender to enter into the Loan Documents and to extend credit to Borrower, each Guarantor (with respect to itself only) represents and warrants to Agent and Lender as follows:
Section 3.1 Benefit. Guarantor is an Affiliate of Borrower, is the owner of a direct or indirect interest in Borrower and has received, or will receive, direct or indirect benefit from the making of this Guaranty with respect to the Guaranteed Obligations.
Section 3.2 Familiarity and Reliance. Guarantor is familiar with, and has independently reviewed books and records regarding, the financial condition of Borrower and is familiar with the value of any and all collateral intended to be created as security for the payment of the Note or Guaranteed Obligations; however, Guarantor is not relying on such financial condition or the collateral as an inducement to enter into this Guaranty.
Section 3.3 No Representation By Agent and the Lender. None of Agent, Lender nor any other party has made any representation, warranty or statement to Guarantor in order to induce Guarantor to execute this Guaranty.
Section 3.4 Guarantor’s Financial Condition. As of the date hereof, and after giving effect to this Guaranty and the contingent obligation evidenced hereby, Guarantor (a) is solvent, (b) has assets which, fairly valued, exceed its obligations, liabilities and debts, and (c) has property and assets sufficient to satisfy and repay its obligations and liabilities, including the Guaranteed Obligations. The financial statements of Guarantor delivered to Lender in connection with the
8
origination of the Loan, including any related financial data delivered to Lender relating to Guarantor: (i) are true, complete and correct in all material respects, (ii) accurately represent the financial condition of Guarantor as of the date of such financial statements, and (iii) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with GAAP throughout the periods covered, except as disclosed therein. Guarantor has no contingent liabilities, liabilities for taxes, unusual forward or long term commitments or unrealized or anticipated losses from any unfavorable commitment that could reasonably be expected to have an adverse effect on Guarantor’s ability to pay and perform its obligations under this Guaranty, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Guarantor from that set forth in said financial statements.
Section 3.5 Organization. If a particular Guarantor is an entity, such Guarantor is duly organized, validly existing and in good standing with full power and authority to own its assets and conduct its business, and is duly qualified and in good standing in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, and such Guarantor has taken all necessary action to authorize the execution, delivery and performance of this Guaranty and the other Loan Documents to which it is a party, and has the power and authority to execute, deliver and perform under this Guaranty, the other Loan Documents to which it is a party and all the transactions contemplated hereby and thereby.
Section 3.6 Proceedings; Enforceability. This Guaranty and the other Loan Documents to which Guarantor is a party have been duly authorized, executed and delivered by Guarantor and constitute a legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Neither this Guaranty nor any other Loan Document to which Guarantor is a party is subject to any right of rescission, set-off, counterclaim or defense by Guarantor, including the defense of usury, nor would the operation of any of the terms of this Guaranty or such other Loan Documents, or the exercise of any right hereunder or thereunder, render this Guaranty or such other Loan Documents unenforceable, and Guarantor not asserted any right of rescission, set-off, counterclaim or defense with respect thereto.
Section 3.7 Legality. The execution, delivery and performance by Guarantor of this Guaranty and the other Loan Documents to which Guarantor is a party, and the consummation of the transactions contemplated hereunder and thereunder, do not and will not contravene or conflict with any law, statute or regulation whatsoever to which Guarantor is subject, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the breach of, any indenture, mortgage, charge, lien, contract, agreement or other instrument to which Guarantor is a party or by which Guarantor or any of Guarantor’s property is bound.
Section 3.8 Consents. No consent, approval, authorization or order of any court or Governmental Authority is required for the execution, delivery and performance by Guarantor of, or compliance by Guarantor with, this Guaranty or the other Loan Documents to which Guarantor
9
is a party, or the consummation of the transactions contemplated hereby or thereby, other than those which have been obtained by Guarantor.
Section 3.9 Litigation; Full and Accurate Disclosure. There is no action, suit, proceeding or investigation pending or, to the best of Guarantor’s knowledge, threatened in writing against Guarantor in any court or by or before any other Governmental Authority, which, in each case involves a risk of any judgment or liability not fully covered by insurance (other than any deductible) which, if adversely determined, could be reasonably expected to have a material adverse effect on the condition (financial or otherwise) or business of Guarantor, or could reasonably be expected to materially impair the ability of Guarantor to carry out the obligations contemplated by this Guaranty). There is no material fact presently known to Guarantor which has not been disclosed to Agent which adversely affects, nor as far as Guarantor can foresee, is reasonably likely to adversely affect, the Property or the Collateral or the business, operations or condition (financial or otherwise) of Borrower or Guarantor.
Section 3.10 Survival. All representations and warranties made by Guarantor herein shall survive the execution hereof.
ARTICLE 4
SUBORDINATION OF CERTAIN INDEBTEDNESS
Section 4.1 Subordination of All Guarantor Claims. As used herein, the term “Guarantor Claims” shall mean all debts and liabilities of Borrower to Guarantor, whether such debts and liabilities now exist or are hereafter incurred or arise, and whether the obligations of Borrower thereon be direct, contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of whether such debts or liabilities be evidenced by note, contract, open account, or otherwise, and irrespective of the Person or Persons in whose favor such debts or liabilities may, at their inception, have been, or may hereafter be, created, or the manner in which they have been, or may hereafter be, acquired by Guarantor. The Guarantor Claims shall include, without limitation, all rights and claims of Guarantor against Borrower (arising as a result of subrogation or otherwise) as a result of Guarantor’s payment of all or a portion of the Guaranteed Obligations. So long as any portion of the Obligations or the Guaranteed Obligations remains outstanding, Guarantor shall not receive or collect, directly or indirectly, from Borrower or any other Person any amount upon the Guarantor Claims.
Section 4.2 Claims in Bankruptcy; Subrogation. In the event of any receivership, bankruptcy, reorganization, arrangement, debtor’s relief or other insolvency proceeding involving Guarantor as a debtor, Agent shall have the right to prove its claim in any such proceeding so as to establish its rights hereunder and receive directly from the receiver, trustee or other court custodian dividends and payments which would otherwise be payable upon Guarantor Claims. Guarantor hereby assigns such dividends and payments to Agent and Lender. At any time while the Obligations are outstanding (other than, so long as no Guaranteed Obligations are then due and owing to Lender, with respect to another Guarantor), should Agent and Lender receive, for application against the Guaranteed Obligations, any dividend or payment which is otherwise payable to Guarantor and which, as between Borrower and Guarantor, shall constitute a credit against the Guarantor Claims, then, upon payment to Agent and Lender in full of the Obligations and the Guaranteed Obligations, Guarantor shall become subrogated to the rights of Agent and
10
Lender to the extent that such payments to Agent and Lender on the Guarantor Claims have contributed toward the liquidation of the Guaranteed Obligations, and such subrogation shall be with respect to that proportion of the Guaranteed Obligations which would have been unpaid if Agent and Lender had not received dividends or payments upon the Guarantor Claims. Notwithstanding the foregoing, Guarantor may assert any claim or seek contribution, indemnification or any other form of reimbursement from any other party liable for the payment of any or all of the Guaranteed Obligations (other than Borrower) in respect of a payment made by such Guarantor of the Guaranteed Obligations (each a “Contribution Claim”), provided that any payment made pursuant to such Contribution Claim shall be paid directly to Agent until such time that Agent shall have been paid the full amount of any underlying Guaranteed Obligation which is the basis of such Contribution Claim, together with all other outstanding claims by Agent on account of the Guaranteed Obligations.
Section 4.3 Payments Held in Trust. Notwithstanding anything to the contrary contained in this Guaranty, in the event that Guarantor should receive any funds, payments, claims and/or distributions which are prohibited by this Guaranty, Guarantor agrees to hold in trust for Agent and Lender an amount equal to the amount of all funds, payments, claims and/or distributions so received, and agrees that it shall have absolutely no dominion over the amount of such funds, payments, claims and/or distributions so received except to pay such funds, payments, claims and/or distributions promptly to Agent and Lender, and Guarantor covenants promptly to pay the same to Agent and Lender.
Section 4.4 Liens Subordinate. Guarantor agrees that any liens, security interests, judgment liens, charges or other encumbrances upon Borrower’s assets securing payment of the Guarantor Claims shall be and remain inferior and subordinate to any liens, security interests, judgment liens, charges or other encumbrances upon Borrower’s assets securing payment of the Guaranteed Obligations, regardless of whether such encumbrances in favor of Guarantor or Agent and Lender presently exist or are hereafter created or attach. Without the prior written consent of Agent, Guarantor shall not (i) exercise or enforce any creditor’s rights it may have against Borrower, or (ii) foreclose, repossess, sequester or otherwise take steps or institute any action or proceedings (judicial or otherwise, including, without limitation, the commencement of, or the joinder in, any liquidation, bankruptcy, rearrangement, debtor’s relief or insolvency proceeding) to enforce any liens, mortgages, deeds of trust, security interests, collateral rights, judgments or other encumbrances on the assets of Borrower held by Guarantor. The foregoing shall in no manner vitiate or amend, nor be deemed to vitiate or amend, any prohibition in the Loan Documents against Borrower granting liens or security interests in any of its assets to any Person other than Agent.
ARTICLE 5
COVENANTS
Section 5.1 Definitions. As used in this Article 5, the following terms shall have the respective meanings set forth below:
(a) “Liquid Asset” shall mean any of the following, but only to the extent owned individually, free of all security interests, liens, pledges, charges or any other encumbrance: (a) cash, (b) certificates of deposit (with a maturity of two years or less) issued by, or savings
11
account with, any bank or other financial institution reasonably acceptable to Agent, (c) marketable securities listed on the New York Stock Exchange or NASDAQ (or any successors thereto) or any other national or international exchange reasonably acceptable to Agent, marked to market, and (d) any line of credit running directly to the Guarantor; provided that Liquid Assets shall not include any asset that is a part of the Property or that is otherwise part of the collateral for the Loan other than distributions made to Guarantor from Borrower (directly or indirectly) to the extent expressly permitted by the Loan Documents.
(b) “Net Worth” shall mean, as of a given date, (i) a Guarantor’s total assets as of such date (exclusive of any interest in the Property or the Collateral or in any other asset that is part of the collateral for the Loan) less (ii) Guarantor’s total liabilities as of such date (exclusive of any liability under the Loan Documents), determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles.
Section 5.2 Covenants. Until all of the Obligations and Guaranteed Obligations have been paid in full, Guarantor collectively (i) shall maintain, in the aggregate, (x) a Net Worth of not less than $90,000,000.00 (the “Net Worth Threshold”) and (y) Liquid Assets of not less than $8,000,000.00 (the “Liquid Assets Threshold”) and (ii) shall not sell, pledge, mortgage or otherwise transfer any of its assets, or any interest therein, on terms materially less favorable than would be obtained in an arms-length transaction or if such transaction would cause the collective Net Worth of Guarantor to fall below the Net Worth Threshold or the collective Liquid Assets of Guarantor to fall below the Liquid Assets Threshold.
Section 5.3 Prohibited Transactions. Guarantor shall not, at any time while a default in the payment of the Guaranteed Obligations has occurred and is continuing, either (i) enter into or effectuate any transaction with any Affiliate that would reduce the collective Net Worth of Guarantor below the Net Worth Threshold (including the payment of any dividend or distribution to a shareholder, or the redemption, retirement, purchase or other acquisition for consideration of any stock or other ownership interest in Guarantor) or (ii) sell, pledge, mortgage or otherwise transfer to any Person any of Guarantor’s assets, or any interest therein, in each case, other than for reasonably equivalent value.
Section 5.4 Financial Statements. Each Guarantor (as to itself only) shall deliver to Agent:
(a) within 120 days after the end of each calendar year, (x) with respect to Principal Guarantors, an unaudited balance sheet and (y) with respect to Entity Guarantor, an audited balance sheet (provided, that, if the financials of Entity Guarantor are publicly available, such balance sheet may be unaudited), in each case, of such Guarantor as of the end of such calendar year substantially similar (in form and content) to the balance sheet delivered to Agent in connection with the origination of the Loan, determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles, (A) setting forth in reasonable detail (provided that setting forth such Guarantor’s Net Worth in the level of detail reflected in such Guarantor financial statements delivered in connection with the closing of the Loan shall be reasonable) such Guarantor’s Net Worth and Liquid Assets as of the end of such prior calendar year and based on such balance sheet,
12
and (B) certifying (or accompanied by a certificate signed by a representative of Guarantor certifying) that such annual financial statements are true, correct, accurate and complete in all material respects and fairly present, as of the date of such financial statements, the financial condition and results of the operations of such Guarantor determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles;
(b) within 40 days after the end of each calendar quarter, (x) with respect to Principal Guarantors, an unaudited balance sheet and (y) with respect to Entity Guarantor, an audited balance sheet (provided, that, if the financials of Entity Guarantor are publicly available, such balance sheet may be unaudited), in each case, of such Guarantor as of the end of such quarter substantially similar (in form and content) to the balance sheet delivered to Agent in connection with the origination of the Loan, determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles, (A) setting forth in reasonable detail any material changes from the last annual financial statement delivered to Agent by such Guarantor and setting forth in reasonable detail (provided that setting forth such Guarantor’s Net Worth in the level of detail reflected in such Guarantor’s financial statements delivered in connection with the closing of the Loan shall be reasonable) such Guarantor’s Net Worth and Liquid Assets as of the end of such prior calendar quarter and based on the foregoing quarterly financial statements, and (B) certifying (or accompanied by a certificate signed by a representative of Guarantor certifying) that such quarterly financial statements are true, correct, accurate and complete in all material respects and fairly present, as of the date of such financial statements, the financial condition and results of the operations of such Guarantor (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles;
(c) within 30 days after the date filed, a complete copy of such Guarantor’s tax return certified by such Guarantor; and
(d) within 20 days after request by Agent, such other financial information with respect to such Guarantor as Agent may reasonably request.
Section 5.5 Additional Covenants
(a) Existence; Compliance with Legal Requirements. Guarantor shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence and all rights, licenses, permits, franchises and applicable governmental authorizations necessary for the operation of its business and comply with all Legal Requirements applicable to it and its assets. Guarantor shall not engage in any dissolution, liquidation or consolidation or merger with or into any other business entity without obtaining the prior consent of Agent.
(b) Litigation. Guarantor shall give prompt notice to Agent of any litigation or governmental proceedings pending or threatened in writing against Guarantor which, if adversely determined, could reasonably be expected to materially adversely affect Guarantor’s condition (financial or otherwise) or business (including Guarantor’s ability to perform its Obligations hereunder or under the other Loan Documents to which it is a party).
13
(c) Patriot Act. Guarantor will use its good faith and commercially reasonable efforts to comply with the Patriot Act and all applicable requirements of Governmental Authorities having jurisdiction over Guarantor, including those relating to money laundering and terrorism.
(d) Further Assurances. Guarantor shall, at Guarantor’s sole cost and expense:
(i) cure any defects in the execution and delivery of the Loan Documents to which Guarantor is a party and execute and deliver, or cause to be executed and delivered, to Agent such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to correct any omissions in the Loan Documents to which Guarantor is a party, as Agent may reasonably require; and
(ii) so long as it does not expand the obligations or materially reduce the benefits to Borrower or Guarantor under the Loan Documents, except, in each case, other than to a de minimis extent, do and execute all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Guaranty and the other Loan Documents to which Guarantor is a party, as Agent may reasonably require from time to time.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Waiver. No failure to exercise, and no delay in exercising, on the part of Agent, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of Agent hereunder shall be in addition to all other rights provided by law. No modification or waiver of any provision of this Guaranty, nor any consent to any departure therefrom, shall be effective unless in writing and no such consent or waiver shall extend beyond the particular case and purpose involved. No notice or demand given in any case shall constitute a waiver of the right to take other action in the same, similar or other instances without such notice or demand.
Section 6.2 Notices. All notices, demands, requests, consents, approvals or other communications (any of the foregoing, a “Notice”) required, permitted or desired to be given hereunder shall be in writing and shall be sent by telefax (with answer back acknowledged) or delivered by hand or by reputable overnight courier, addressed to the party to be so notified at its address hereinafter set forth, or to such other address as such party may hereafter specify in accordance with the provisions of this Section 6.2. Any Notice shall be deemed to have been received: (a) on the date of sending by telefax if sent during business hours on a Business Day (otherwise on the next Business Day), (b) on the date of delivery by hand if delivered during business hours on a Business Day (otherwise on the next Business Day), and (c) on the next Business Day if sent by an overnight commercial courier, in each case addressed to the parties as follows:
If to Agent: DL RCF I Loan Holdings, LLC
c/o Derby Lane Partners LLC
12 East 49th Street, Suite 1519
New York, New York 10017
14
Attention: Urian Yap
Email: [email protected]
with a copy to: Gibson Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention: Matthew Kidd, Esq.
Email: [email protected]
If to Principal Guarantors:
Adam Friedberg
3834 N. Lakewood Avenue
Chicago, Illinois 60613
Email: [email protected]
Anthony Hrusovsky
531 E Scranton Avenue
Lake Bluff, Illinois 60044
Email: [email protected]
Peter Koch
1509 Kaywood Lane
Glenview, Illinois 60025
Email: [email protected]
with a copy to: Patzik, Frank & Samotny Ltd.
200 South Wacker Drive – Suite 2700
Chicago, Illinois 60606
Attention: John W. Morse
Facsimile No. (312) 551-1101
Email: [email protected]
If to Entity Guarantor:
ACRES Commercial Realty Corp.
390 RXR Plaza
Uniondale, New York 11556
Attention: Jaclyn Jesberger
Email: [email protected]
with a copy to: Murland Dainoff LLC
555 E. Lancaster Avenue, Suite 501
Radnor, Pennsylvania 19087
Attention: Harris A. Dainoff, Esquire
Email: [email protected]
15
Any party may change the address to which any such Notice is to be delivered by furnishing ten (10) days’ written notice of such change to the other parties in accordance with the provisions of this Section 6.2. Notices shall be deemed to have been given on the date set forth above, even if there is an inability to actually deliver any Notice because of a changed address of which no Notice was given or there is a rejection or refusal to accept any Notice offered for delivery. Notice for any party may be given by its respective counsel. Additionally, Notice from Agent may also be given by Servicer.
Section 6.3 Governing Law; Jurisdiction; Service of Process. (a) THIS GUARANTY WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY GUARANTOR AND ACCEPTED BY AGENT IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THE NOTE WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION RELATED HERETO, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS GUARANTY AND/OR THE OTHER LOAN DOCUMENTS, AND THIS GUARANTY AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST AGENT OR GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY, AT AGENT’S OPTION, BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND GUARANTOR WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. EACH GUARANTOR DOES HEREBY DESIGNATE AND APPOINT:
Corporation Service Company
19 West 44th Street, Suite 200
New York, NY 10036
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH
16
SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND EACH GUARANTOR AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO SUCH GUARANTOR IN THE MANNER PROVIDED HEREIN SHALL CONCLUSIVELY BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON SUCH GUARANTOR IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. EACH GUARANTOR (I) SHALL GIVE PROMPT NOTICE TO AGENT OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS AND WHICH SUBSTITUTE AGENT SHALL BE THE SAME AGENT DESIGNATED BY BORROWER UNDER THE LOAN AGREEMENT), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY GUARANTOR IN ANY OTHER JURISDICTION.
Section 6.4 Invalid Provisions. If any provision of this Guaranty is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Guaranty, such provision shall be fully severable and this Guaranty shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Guaranty, and the remaining provisions of this Guaranty shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Guaranty, unless such continued effectiveness of this Guaranty, as modified, would be contrary to the basic understandings and intentions of the parties as expressed herein.
Section 6.5 Amendments. This Guaranty may be amended only by an instrument in writing executed by the party(ies) against whom such amendment is sought to be enforced.
Section 6.6 Parties Bound; Assignment. This Guaranty shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, permitted assigns, heirs and legal representatives. Agent shall have the right to assign or transfer its rights under this Guaranty in connection with any assignment of the Loan and the Loan Documents. Any assignee or transferee of Agent shall be entitled to all the benefits afforded to Agent under this Guaranty. Guarantor shall not have the right to assign or transfer its rights or obligations under this Guaranty without the prior written consent of Agent, and any attempted assignment without such consent shall be null and void.
Section 6.7 Headings. Section headings are for convenience of reference only and shall in no way affect the interpretation of this Guaranty.
17
Section 6.8 Recitals. The recitals and introductory paragraphs hereof are a part hereof, form a basis for this Guaranty and shall be considered prima facie evidence of the facts and documents referred to therein.
Section 6.9 Counterparts. To facilitate execution, this Guaranty may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Guaranty to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto. Any signature page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature pages.
Section 6.10 Rights and Remedies. If Guarantor becomes liable for any indebtedness owing by Borrower to Agent or any Lender, by endorsement or otherwise, other than under this Guaranty, such liability shall not be in any manner impaired or affected hereby and the rights of Agent and Lender hereunder shall be cumulative of any and all other rights that Agent or any Lender may ever have against Guarantor. The exercise by Agent and Lender of any right or remedy hereunder or under any other instrument, or at law or in equity, shall not preclude the concurrent or subsequent exercise of any other right or remedy.
Section 6.11 Entirety. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF GUARANTOR AND AGENT AND LENDER WITH RESPECT TO GUARANTOR’S GUARANTY OF THE GUARANTEED OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR AND AGENT AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF DEALING BETWEEN GUARANTOR AND AGENT AND LENDER, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND AGENT AND LENDER.
Section 6.12 Waiver of Right To Trial By Jury. GUARANTOR AND, BY ITS ACCEPTANCE HEREOF, AGENT AND LENDER, EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE NOTE, THE MORTGAGE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY GUARANTOR
18
AND, BY ITS ACCEPTANCE HEREOF, AGENT AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF GUARANTOR, LENDER AND AGENT IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE OTHER PARTY.
Section 6.13 New York Provisions. Guarantor acknowledges and agrees that this Guaranty is, and is intended to be, an instrument for the payment of money only, as such phrase is used in Section 3213 of the Civil Practice Law and Rules of the State of New York, that Guarantor has been fully advised by its counsel of Lender’s rights and remedies pursuant to such Section 3213 and that Guarantor expressly waives any right, and hereby agrees not, to assert that this Guaranty is not such an instrument.
Section 6.14 Cooperation. Guarantor acknowledges that Agent and Lender and their successors and assigns may effectuate a “Secondary Market Transaction” in accordance with Article 9 of the Loan Agreement. Subject to the terms, conditions and limitations set forth in the Loan Agreement, Guarantor shall cooperate with Agent and Lender in effecting any such Secondary Market Transaction and shall provide (or cause Borrower to provide) such information and materials as may be required or necessary pursuant to Section 9.1 and Section 9.2 of the Loan Agreement. Agent and Lender shall be permitted to share all such information with the investment banking firms, rating agencies, accounting firms, law firms and other third party advisory firms involved with the Loan and the Loan Documents or the applicable Secondary Market Transaction, provided that such parties are advised of the confidential nature of any information that is clearly marked as confidential information or that is not otherwise publicly available or known to Agent from another source. It is understood that the information provided by Guarantor to Agent and Lender may ultimately be disclosed to purchasers and potential purchasers in connection with a Secondary Market Transaction. Agent, Lender, and all of the aforesaid third party advisers and professional firms shall be entitled to rely on the information supplied by, or on behalf of, Guarantor in the form as provided by Guarantor. Agent and Lender may publicize the existence of the Loan in connection with its marketing for a Secondary Market Transaction or otherwise as part of its business development.
Section 6.15 Reinstatement in Certain Circumstances. If at any time any payment of the principal of or interest under the Note or any other amount payable by Borrower under the Loan Documents is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of Borrower or otherwise, Guarantor’s obligations hereunder with respect to such payment shall be reinstated as though such payment had been due but not made at such time.
Section 6.16 Gender; Number; General Definitions. Unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein, (a) words used in this Guaranty may be used interchangeably in the singular or plural form, (b) any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, (c) the word “Borrower” shall mean “each Borrower and any subsequent owner or owners of the Property or any part thereof or interest therein”, (d) the word “Agent” shall mean “Agent and any subsequent holder of the Note”, (e) the word “Note” shall mean “the Note and any other evidence of indebtedness secured
19
by the Loan Agreement”, (f) the word “Property” shall include any portion of the Property and any interest therein, and (g) the phrases “attorneys’ fees”, “legal fees” and “counsel fees” shall include any and all out-of-pocket attorneys’, paralegal and law clerk fees and disbursements of outside counsel, including, but not limited to, fees and disbursements at the pre-trial, trial and appellate levels, incurred or paid by Agent in protecting its interest in the Property, the Collateral, the Leases and/or the Rents and/or in enforcing its rights hereunder.
Section 6.17 Joint and Several. If there is more than one Guarantor, the obligations and liabilities of each Guarantor hereunder are joint and several. Without in any way limiting the obligations of Guarantor hereunder, the parties hereto acknowledge that the defined term “Guarantor” collectively includes each individual Guarantor and that it is the intent of the parties hereto in determining whether (a) a breach of a representation or a covenant has occurred or (b) there has occurred a default hereunder, that any such breach, occurrence, or event with respect to any individual Guarantor shall be deemed to be such a breach, occurrence or event with respect to every Guarantor and that each individual Guarantor need not have been involved with such breach, occurrence or event in order for the same to be deemed such a breach, occurrence or event with respect to every individual Guarantor.
Section 6.18 Fully Recourse. All of the terms and provisions of this Guaranty are recourse obligations of Guarantor and not restricted by any limitation on personal liability set forth in any of the Loan Documents.
Section 6.19 Exculpation. Section 9.4 of the Loan Agreement is hereby incorporated by reference as if set forth at length herein.
Section 6.20 Unsecured Obligations. The obligations of Guarantor under this Guaranty are not secured by the lien of the Mortgage or the security interests or other collateral described in the Mortgage or the other Loan Documents, it being the intent of Agent and Lender to create separate obligations of Guarantor hereunder which can be enforced against Guarantor without regard to the existence of the Mortgage or other Loan Documents or the liens or security interests created therein.
Section 6.21 Incorporation by Reference. To the extent that any provisions or defined terms contained in any other Loan Document (including, without limitation, the Loan Agreement) are used herein or incorporated herein by reference, and such other Loan Document is terminated or otherwise satisfied prior to the termination of this Guaranty, then, for the avoidance of doubt, such provisions and/or defined terms shall survive until the satisfaction of the Obligations without regard to the fact that the Loan Document originally containing the same has been otherwise terminated or satisfied.
Section 6.22 Limitation on Liability. Notwithstanding the provisions of this Guaranty to the contrary:
(a) Guarantor shall not have any liability under this Guaranty to the extent such liability arises solely as a result of the fraud, gross negligence or willful misconduct of Agent or Lender.
20
(b) Guarantor shall have no liability under this Guaranty for any Guaranteed Obligations that arise solely from actions first taken or events first occurring after the date that Agent (or its nominee, designee or agent) acquires title to the Property (whether at a foreclosure sale, by private power of sale or by the acceptance of a deed-in-lieu of foreclosure (it being agreed and acknowledged that neither Agent nor any Lender has any obligation to accept any such deed-in-lieu of foreclosure) or otherwise) (any such event being a “Mortgage Foreclosure Event”), provided that Guarantor shall not be released from liability (x) if such Mortgage Foreclosure Event is rescinded or declared void by a court of competent jurisdiction, (y) that arises from and after a Mortgage Foreclosure Event due to acts, omissions or conditions taken by or at the direction of a Guarantor or any of its Affiliates or (z) for any costs of enforcement as set forth in Section 1.7 hereof.
(c) Guarantor shall have no liability under this Guaranty for any Guaranteed Obligations that arise solely from actions first taken or events first occurring (i) after the date that Agent (or its nominee, designee or agent) acquires title to, possession and control of the direct and/or indirect ownership interests in Borrower or Master Tenant after a UCC foreclosure or conveyance in lieu of foreclosure of the Pledge Agreement or the Pledge Agreement (Master Tenant), as applicable (it being agreed and acknowledged that neither Agent nor any Lender has any obligation to accept any such conveyance in lieu of foreclosure) (any such event being a “Pledge Foreclosure Event”), provided that Guarantor shall not be released from liability (x) if such Pledge Foreclosure Event is rescinded or declared void by a court of competent jurisdiction, (y) that arises from and after a Pledge Foreclosure Event due to acts, omissions or conditions taken by or at the direction of a Guarantor or any of its Affiliates (in each case, as constituted prior to any such Pledge Foreclosure Event) or (z) for any costs of enforcement as set forth in Section 1.7 hereof, or (ii) during the continuance of the exercise of control rights by Agent or any Lender (or its nominee, designee or agent) pursuant the Pledge Agreement or the Pledge Agreement (Master Tenant).
Section 6.23 Non-Duplication of Guaranty Payments. Payments by Guarantor of amounts due hereunder shall be without duplication of any amounts paid for the identical liability under the Guaranty of Interest and Carry Costs and/or the Guaranty of Completion by Guarantor in favor of Agent of even date herewith (e.g., if Agent makes a claim requiring Guarantor to satisfy Borrower’s obligation to pay certain Taxes under the Guaranty of Completion and also a claim under this Guaranty to pay the same Taxes, Guarantor’s payment of such obligation pursuant to
21
the Guaranty of Completion shall satisfy Guarantor’s obligation hereunder to pay the same, and vice versa).
[NO FURTHER TEXT ON THIS PAGE]
22
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and year first above written.
GUARANTOR:
/s/ Adam Friedberg |
Adam Friedberg, an individual |
/s/ Anthony Hrusovsky |
Anthony HrusovSKy, an individual |
/s/ Peter Koch |
Peter koch, an individual |
ACRES COMMERCIAL REALTY CORP.,
a Maryland corporation
By: |
/s/ Mark S. Fogel |
|
Name: Mark S. Fogel Title: President |
[Signature Page to Guaranty of Recourse Obligations]
Exhibit 10.4
GUARANTY OF INTEREST AND CARRY COSTS
This GUARANTY OF INTEREST AND CARRY COSTS (this “Guaranty”) is executed as of September 12, 2025 by ADAM FRIEDBERG, an individual, having an address at 3834 N. Lakewood Avenue, Chicago, Illinois 60613, ANTHONY HRUSOVSKY, an individual, having an address at 531 E Scranton Avenue, Lake Bluff, Illinois 60044 and PETER KOCH, an individual, having an address at 1509 Kaywood Lane, Glenview, Illinois 60025 (collectively, “Principal Guarantors”) and ACRES COMMERCIAL REALTY CORP., a Maryland corporation, having an address at 390 RXR Plaza, Uniondale, New York 11556 (“Entity Guarantor”; Entity Guarantor, together with Principal Guarantors, individually and collectively, the “Guarantor”), for the benefit of DL RCF I LOAN HOLDINGS, LLC, a Delaware limited liability company, having an address at c/o Derby Lane Partners LLC, 12 E. 49th Street, Suite 1519, New York, New York 10017, in its capacity as administrative agent (together with its successors and/or assigns, “Agent”), for itself and on behalf of any Lender (as that term is defined in the Loan Agreement).
W I T N E S S E T H:
A. Lender is prepared to make a loan to 65 E. WACKER HOLDINGS II, LLC, a Delaware limited liability company (“Borrower”) in the maximum principal amount of up to SIXTY-TWO MILLION FOUR HUNDRED THOUSAND AND NO/100 DOLLARS ($62,400,000.00) (the “Loan”) pursuant to that certain Loan Agreement, dated as of the date hereof, by and among Borrower, Agent, and Lender (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”), which Loan is evidenced by, among other things, the Note (as defined in the Loan Agreement) and is secured by, among other things, the Mortgage (as defined in the Loan Agreement), encumbering certain real property (the “Property”) more particularly described therein. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Loan Agreement.
B. Lender is not willing to make and Agent is not willing to administer the Loan, or otherwise extend credit, to Borrower unless Guarantor unconditionally guarantees the payment and performance to Agent and Lender of the Guaranteed Obligations (as herein defined).
C. Guarantor is the owner of direct or indirect interests in Borrower, and Guarantor will benefit from Agent administering and Lender making the Loan to Borrower.
NOW, THEREFORE, as an inducement to Lender to make and Agent to administer the Loan to Borrower and to extend such additional credit as Agent and Lender may from time to time agree to extend under the Loan Documents, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
ARTICLE 1
NATURE AND SCOPE OF GUARANTY
Section 1.1 Guaranty of Obligation.
(a) Guarantor hereby absolutely, irrevocably and unconditionally guarantees to Agent and Lender and their successors and assigns the payment and performance of the Guaranteed Obligations (as defined below) as and when the same shall be due and payable, whether by lapse of time, by acceleration of maturity or otherwise. Guarantor hereby irrevocably and unconditionally covenants and agrees that it is liable for the Guaranteed Obligations as a primary obligor.
(b) As used herein, the term “Guaranteed Obligations” means (A) Borrower’s obligation to timely pay all Carry Costs and Debt Service (including interest at the Default Rate, if applicable, but excluding, for the avoidance of doubt, principal due on the Maturity Date whether by acceleration or otherwise, and the Minimum Return Amount) pursuant to the terms of the Loan Documents, (B) Borrower’s obligation to make deposits into the Carry Cost Account as and when due and/or payable in accordance with the Loan Agreement, and (C) all interest due to the Bridge Lender and/or preferred return due to HTC Investor pursuant to the Master Tenant Operating Agreement (in each case, regardless of whether the construction has commenced, Maturity Date has occurred or there has been an acceleration of the Loan). For the avoidance of doubt, neither Agent nor Lender shall be required to demonstrate a loss, liability or other impairment under the Loan in order to enforce Guarantor’s obligations under this Guaranty. Notwithstanding anything to the contrary contained herein, so long as no Event of Default has occurred, Lender and/or Agent shall be required to utilize any deposits in any Carry Cost Account or the Interest Reserve Account prior to making demand hereunder.
(c) Notwithstanding anything to the contrary in this Guaranty or in any of the other Loan Documents, neither Agent nor any Lender shall be deemed to have waived any right which Agent and Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Obligations against Borrower or to require that all collateral shall continue to secure all of the Obligations owing to Agent and Lender in accordance with the Loan Documents.
(d) Nothing herein contained is intended to limit or expand any obligations of Guarantor under any other guaranty given in connection with the Loan Agreement. Notwithstanding the foregoing, Guarantor shall not be required to make payments under this Guaranty to the extent Guarantor has already made a payment in respect of the same obligations under the Guaranty (as defined in the Loan Agreement) or the Guaranty of Completion.
Section 1.2 Nature of Guaranty. This Guaranty is an irrevocable, absolute, continuing guaranty of prompt payment and performance and not a guaranty of collection. The obligations of Guarantor under this Guaranty shall be primary, irrevocable, direct and not conditional or contingent upon pursuit by Agent or any Lender of any remedies it may have against Borrower under the Loan Agreement or the other Loan Documents or any remedies it might have against any other Person. This Guaranty may not be revoked by Guarantor and shall continue to be effective with respect to any Guaranteed Obligations arising or created after any attempted
2
revocation by Guarantor and after (if Guarantor is a natural person) Guarantor’s death (in which event this Guaranty shall be binding upon Guarantor’s estate and Guarantor’s legal representatives and heirs). The fact that at any time or from time to time the Guaranteed Obligations may be increased or reduced or otherwise modified in any manner or to any extent shall not release, diminish or discharge the obligation of Guarantor to Agent and Lender with respect to the Guaranteed Obligations. This Guaranty may be enforced by Agent and any subsequent holder of the Note and shall not be discharged by the assignment or negotiation of all or any part of the Note.
Section 1.3 Guaranteed Obligations Not Reduced by Offset. Except for the obligation to utilize amounts on deposit in the Interest Reserve Account or the Carry Cost Account, the Guaranteed Obligations and the liabilities and obligations of Guarantor to Agent and Lender hereunder shall not be reduced, discharged or released because or by reason of any existing or future offset, claim or defense of Borrower or any other party (excluding the defense of payment and performance in full of the Guaranteed Obligations) against Agent or any Lender or against payment of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise. Agent’s and Lender’s rights under this Guaranty shall be in addition to all rights of Agent and Lender under the Loan Agreement, the Note, the Mortgage and the other Loan Documents. FURTHER, PAYMENTS MADE BY GUARANTOR UNDER THIS GUARANTY SHALL NOT REDUCE IN ANY RESPECT BORROWER’S OBLIGATIONS AND LIABILITIES UNDER THE LOAN AGREEMENT, THE NOTE, THE MORTGAGE AND THE OTHER LOAN DOCUMENTS EXCEPT WITH RESPECT TO, AND TO THE EXTENT OF, BORROWER’S OBLIGATION AND LIABILITY FOR THE PAYMENT MADE BY GUARANTOR. Further, no defense of any kind or nature which Guarantor has or may hereafter have against Agent or Lender shall be available hereunder to Guarantor, other than the defense that the Guaranteed Obligations have been paid in full.
Section 1.4 Payment By Guarantor. Any payment required to be made by Guarantor pursuant to this Guaranty shall be made without presentment, protest, notice of protest, or any other notice whatsoever, all such notices being hereby waived by Guarantor to the extent not prohibited by non-waivable provisions of applicable Legal Requirements (any such waivable provisions being hereby expressly and irrevocably waived by Guarantor) and Guarantor shall pay in lawful money of the United States of America, the amount due on the Guaranteed Obligations to Agent within ten (10) Business Days after notice from Agent, at its address set forth herein. Any demand made by Agent may be made at any time coincident with or after the time for payment of all or part of the Guaranteed Obligations and may be made from time to time with respect to the same or different items of Guaranteed Obligations. Such demand shall be deemed made, given and received in accordance with the notice provisions hereof. In the event any individual Guarantor commences a case under the Bankruptcy Code or an involuntary petition under the Bankruptcy Code is filed against such Guarantor, then this Guaranty shall become immediately due and payable without demand (which demand is specifically waived) against such Guarantor with regard to all Guaranteed Obligations unless, in the case of an involuntary case under the Bankruptcy Code only, the remaining Persons comprising Guarantor collectively continue to satisfy the Net Worth Threshold and the Liquid Assets Threshold set forth in Section 5.2 hereof.
Section 1.5 No Duty To Pursue Others. It shall not be necessary for Agent or Lender (and Guarantor hereby waives any rights which Guarantor may have to require Agent or Lender),
3
in order to enforce the obligations of Guarantor hereunder, first to (i) institute suit or exhaust its remedies against Borrower or others liable on the Loan or the Guaranteed Obligations or any other Person, (ii) enforce Agent and Lender’s rights against any collateral which shall ever have been given to secure the Loan, (iii) enforce Agent’s and Lender’s rights against any other guarantors of the Guaranteed Obligations, (iv) join Borrower or any others liable on the Guaranteed Obligations in any action seeking to enforce this Guaranty, (v) exhaust any remedies available to Agent or Lender against any collateral which shall ever have been given to secure the Loan, or (vi) resort to any other means of obtaining payment of the Guaranteed Obligations. Neither Agent nor Lender shall be required to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations.
Section 1.6 Waivers. Guarantor agrees to the provisions of the Loan Documents and, to the extent not prohibited by non-waivable provisions of applicable Legal Requirements (any such waivable provisions being hereby expressly and irrevocably waived by Guarantor), hereby waives notice of (i) any loans or advances made by Agent or any Lender to Borrower, (ii) acceptance of this Guaranty, (iii) any amendment or extension of the Note, the Mortgage, the Loan Agreement or any other Loan Document, (iv) the execution and delivery by Borrower, Agent and Lender of any other loan or credit agreement or of Borrower’s execution and delivery of any promissory note or other document arising under the Loan Documents or in connection with the Property or the Collateral, (v) the occurrence of (A) any breach by Borrower of any of the terms or conditions of the Loan Agreement or any of the other Loan Documents, or (B) an Event of Default, (vi) Agent’s and Lender’s transfer or disposition of the Guaranteed Obligations, or any part thereof, (vii) the sale or foreclosure (or the posting or advertising for the sale or foreclosure) of any collateral for the Guaranteed Obligations, (viii) protest, proof of non-payment or default by Borrower, or (ix) any other action at any time taken or omitted by Agent or any Lender and, generally, all demands and notices of every kind in connection with this Guaranty (other than any applicable notices that are expressly and specifically required under this Guaranty), the Loan Documents, any documents or agreements evidencing, securing or relating to any of the Guaranteed Obligations and/or the obligations hereby guaranteed. Notwithstanding the foregoing or anything to the contrary contained in this Guaranty, Guarantor does not waive the right to receive any notices from Lender to the extent such notices are expressly required to be given to Guarantor by Agent under the Loan Documents but the failure to provide such notices shall not give rise to any defenses by Guarantor hereunder or otherwise limit Agent’s or Lender’s rights hereunder (other than to the extent any grace periods under the Loan Documents are extended as a result thereof).
Section 1.7 Payment of Expenses. . In the event that Guarantor shall breach or fail to timely perform any provisions of this Guaranty, Guarantor shall, within ten (10) Business Days’ after written demand by Agent, pay Agent (on behalf of Lender) all actual out-of-pocket costs and expenses (including court costs and out-of-pocket attorneys’ fees of outside counsel) incurred by Agent or Lender in the enforcement hereof or the preservation of Agent’s or Lender’s rights hereunder, together with interest thereon at the Default Rate from and after the expiration of such ten (10) Business Day period until the date of payment to Agent. The covenant contained in this Section shall survive the payment and performance of the Guaranteed Obligations. Notwithstanding the foregoing, if a court of competent jurisdiction shall find in favor of the Borrower and/or Guarantor, then neither Borrower nor Guarantor shall have any obligation under this provision.
4
Section 1.8 Effect of Bankruptcy. In the event that pursuant to any insolvency, bankruptcy, reorganization, receivership or other debtor relief law or any judgment, order or decision thereunder, (a) Agent or Lender must rescind or restore any payment or any part thereof received by Agent or a Lender in satisfaction of the Guaranteed Obligations, as set forth herein, any prior release or discharge from the terms of this Guaranty given to Guarantor by Agent or a Lender shall be without effect and this Guaranty shall remain (or shall be reinstated to be) in full force and effect and (b) notwithstanding any other provision of this Guaranty, (i) all amounts hereunder shall become immediately due and payable and (ii) Guarantor hereby waives all demands and notices of every kind. It is the intention of Borrower and Guarantor that Guarantor’s obligations hereunder shall not be discharged except by Guarantor’s performance of such obligations and then only to the extent of such performance.
Section 1.9 Waiver of Subrogation, Reimbursement and Contribution. Notwithstanding anything to the contrary contained in this Guaranty, Guarantor hereby unconditionally and irrevocably waives, releases and abrogates any and all rights it may now or hereafter have under any agreement, at law or in equity (including, without limitation, any law subrogating Guarantor to the rights of Agent or any Lender), to assert any claim against or seek contribution, indemnification or any other form of reimbursement from Borrower or any other party liable for the payment of any or all of the Guaranteed Obligations for any payment made by Guarantor under or in connection with this Guaranty or otherwise, until the Obligations (including, without limitation, the Guaranteed Obligations) have been indefeasibly repaid in full (subject to reinstatement as provided in Section 1.8 above).
ARTICLE 2
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR’S OBLIGATIONS
Guarantor hereby consents and agrees to each of the following and agrees that Guarantor’s obligations under this Guaranty shall not be released, diminished, impaired, reduced or adversely affected by any of the following and waives any common law, equitable, statutory or other rights (including, without limitation, rights to notice) which Guarantor might otherwise have as a result of or in connection with any of the following:
Section 2.1 Modifications. Any renewal, extension, increase, modification, alteration or rearrangement of all or any part of the Guaranteed Obligations, the Note, the Mortgage, the Loan Agreement, the other Loan Documents or any other document, instrument, contract or understanding between Borrower, Agent and Lender or any other parties pertaining to the Guaranteed Obligations or any failure of Agent to notify Guarantor of any such action. Except as otherwise expressly limited in any other Loan Document, in furtherance and not in limitation of the foregoing, Guarantor authorizes Agent, without giving notice to Guarantor or obtaining Guarantor’s consent and without affecting the liability of Guarantor, from time to time to: (i) approve modifications to the Property, the Project, the Construction Schedule, the Guaranteed Work (as defined in the Guaranty of Completion), the Plans and Specifications, the Business Plan, the Development Agreement, the Construction Budget, and the Annual Budget as and when requested by Borrower; (ii) change the terms or conditions of disbursement of the Loan or the Loan proceeds; (iii) otherwise modify or amend the Loan Documents, including, without limitation, making changes in the terms of repayment of the Loan or modifying, extending or
5
renewing payment dates; releasing or subordinating security in whole or in part; changing the interest rate; or advancing additional funds in its discretion for purposes related to the purposes specified in the Loan Agreement; or (iv) assign this Guaranty in whole or in part in accordance with the assignment of all or any portion of the Loan by Agent or any Lender. Guarantor hereby irrevocably and unconditionally covenants and agrees that it is liable for the Guaranteed Obligations as a primary obligor. Following a foreclosure of the Pledge Agreement or the Pledge Agreement (Master Tenant), the foregoing modifications may not be made to the extent they would increase or expand the obligations of Guarantor hereunder.
Section 2.2 Intentionally Omitted.
Section 2.3 Condition of Borrower or Guarantor. The insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of Borrower, Guarantor or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of Borrower or Guarantor or any sale, lease or transfer of any or all of the assets of Borrower or Guarantor or any changes in the direct or indirect shareholders, partners or members, as applicable, of Borrower or Guarantor; or any reorganization of Borrower or Guarantor.
Section 2.4 Invalidity of Guaranteed Obligations. The invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations or any document or agreement executed in connection with the Guaranteed Obligations for any reason whatsoever, including, without limitation, the fact that (i) the Guaranteed Obligations or any part thereof exceeds the amount permitted by law, (ii) the act of creating the Guaranteed Obligations or any part thereof is ultra vires, (iii) the officers or representatives executing the Note, the Mortgage, the Loan Agreement or the other Loan Documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (iv) the Guaranteed Obligations violate applicable usury laws, (v) Borrower has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from Borrower, other than the defense of actual payment or performance in full of the Guaranteed Obligations, (vi) the creation, performance or repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible or unenforceable, or (vii) the Note, the Mortgage, the Loan Agreement or any of the other Loan Documents have been forged or otherwise are irregular or not genuine or authentic, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other Person be found not liable on the Guaranteed Obligations or any part thereof for any reason.
Section 2.5 Release of Obligors. Any full or partial release of the liability of Borrower for the Guaranteed Obligations or any part thereof, or of any co-guarantors, or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations, or any part thereof, it being recognized, acknowledged and agreed by Guarantor that Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support from any other Person, and Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that other Persons (including Borrower) will be
6
liable to pay or perform the Guaranteed Obligations or that Agent or Lender will look to other Persons (including Borrower) to pay or perform the Guaranteed Obligations.
Section 2.6 Other Collateral. The taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations.
Section 2.7 Release of Collateral. Any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of any collateral, property or security at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations.
Section 2.8 Care and Diligence. The failure of Agent, Lender or any other party to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of any collateral, property or security, including, but not limited to, any neglect, delay, omission, failure or refusal of Agent or Lender (i) to take or prosecute any action for the collection of any of the Guaranteed Obligations, or (ii) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose upon any security therefor, or (iii) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guaranteed Obligations.
Section 2.9 Unenforceability. The fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by Guarantor that Guarantor is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the collateral for the Guaranteed Obligations.
Section 2.10 Offset. Any existing or future right of offset, claim or defense of Borrower against Agent or Lender, or any other Person (including, without limitation, Guarantor), or against payment of the Guaranteed Obligations, whether such right of offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise (excluding the defense of actual payment and performance in full of the Guaranteed Obligations).
Section 2.11 Merger. The reorganization, merger or consolidation of Borrower or Guarantor into or with any other Person.
Section 2.12 Preference. Any payment by Borrower to Agent or Lender is held to constitute a preference under the Bankruptcy Code or for any reason Agent or any Lender is required to refund such payment or pay such amount to Borrower or to any other Person.
Section 2.13 Other Actions Taken or Omitted. Any other action taken or omitted to be taken with respect to the Loan Documents, the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be
7
obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly described herein, which obligation shall be deemed satisfied only upon the full and final payment and satisfaction of the Guaranteed Obligations.
Section 2.14 Independent Obligations. The obligations of Guarantor under this Guaranty are independent of Borrower’s obligations under the Loan Agreement, the Note and the other Loan Documents, and a separate action or actions may be brought and prosecuted against Guarantor to enforce this Guaranty, irrespective of whether an action is brought against Borrower or whether Borrower is joined in any such action or more successive and/or concurrent actions may be brought hereon against Guarantor either in the same action, if any, brought against Borrower or in separate actions, as often as Agent or Lender, in their sole discretion, may deem advisable. To the extent it may lawfully do so, Guarantor, on behalf of itself and on behalf of each Person claiming by, through or under Guarantor, hereby irrevocably and unconditionally waives any right to object to Agent or Lender bringing simultaneous actions to (i) recover the Guaranteed Obligations against Borrower under the Loan Agreement, the Note or any other Loan Document, at law or in equity, or (ii) recover any amounts due under this Guaranty. For the avoidance of doubt, indefeasible payments made hereunder by Guarantor in respect of the Guaranteed Obligations shall be applied towards the Guaranteed Obligations pursuant to this Agreement.
Section 2.15 Survival. This Guaranty shall survive the exercise of remedies following an Event of Default under the Loan Agreement or the other Loan Documents, including, but not limited to a foreclosure of the Mortgage and/or any exercise of remedies under the Pledge Agreement or the Pledge Agreement (Master Tenant) by Agent or Lender, provided, however, Guarantor shall have no liability for any Guaranteed Obligations first arising after the earliest of the following dates (the “Cut-off Date”):
(a) the date that the Property has achieved each of: (i) the execution and delivery of a lease of the entire Retail Space that expires no earlier than December 31, 2027 and (ii) a Debt Service Coverage Ratio of 1.05:1.00 as of the end of one (1) calendar quarter;
(b) the date that all Obligations and other sums due under the Loan Agreement and the other Loan Documents have been fully satisfied and indefeasibly paid in full to Agent or Lender;
(c) the date that is six (6) months after the date that Agent, Lender and/or a designee of either, have taken title to, possession and control of (i) the Property pursuant to a foreclosure sale or deed-in-lieu or conveyance-in-lieu of foreclosure (as applicable) or (ii) the Collateral pursuant to a foreclosure or assignment-in-lieu of foreclosure (as applicable)); and
(d) the date that a Valid Tender (as hereinafter defined) is effectuated.
In order to effectuate a “Valid Tender”, the following conditions shall be satisfied in full: (1) from and after the date both (y) an Event of Default has occurred and is continuing, and (z) Agent has accelerated the Maturity Date by written notice to Borrower, Guarantor shall deliver a written notice (a “DIL Notice”) to Agent which specifies that Borrower offers to convey to Agent
8
(for the benefit of Lender) a DIL (as defined in Exhibit A attached hereto) and (2) all of the conditions set forth in Exhibit A attached hereto shall be satisfied in full.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
To induce Agent and Lender to enter into the Loan Documents and to extend credit to Borrower, each Guarantor (with respect to itself only) represents and warrants to Agent and Lender as follows:
Section 3.1 Benefit. Guarantor is an Affiliate of Borrower, is the owner of a direct or indirect interest in Borrower and has received, or will receive, direct or indirect benefit from the making of this Guaranty with respect to the Guaranteed Obligations.
Section 3.2 Familiarity and Reliance. Guarantor is familiar with, and has independently reviewed books and records regarding, the financial condition of Borrower and is familiar with the value of any and all collateral intended to be created as security for the payment of the Note or Guaranteed Obligations; however, Guarantor is not relying on such financial condition or the collateral as an inducement to enter into this Guaranty.
Section 3.3 No Representation By Agent and the Lender. None of Agent, Lender nor any other party has made any representation, warranty or statement to Guarantor in order to induce Guarantor to execute this Guaranty.
Section 3.4 Guarantor’s Financial Condition. As of the date hereof, and after giving effect to this Guaranty and the contingent obligation evidenced hereby, Guarantor (a) is solvent, (b) has assets which, fairly valued, exceed its obligations, liabilities and debts, and (c) has property and assets sufficient to satisfy and repay its obligations and liabilities, including the Guaranteed Obligations. The financial statements of Guarantor delivered to Lender in connection with the origination of the Loan, including any related financial data delivered to Lender relating to Guarantor: (i) are true, complete and correct in all material respects, (ii) accurately represent the financial condition of Guarantor as of the date of such financial statements, and (iii) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with GAAP throughout the periods covered, except as disclosed therein. Guarantor has no contingent liabilities, liabilities for taxes, unusual forward or long term commitments or unrealized or anticipated losses from any unfavorable commitment that could reasonably be expected to have an adverse effect on Guarantor’s ability to pay and perform its obligations under this Guaranty, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Guarantor from that set forth in said financial statements.
Section 3.5 Organization. If a particular Guarantor is an entity, such Guarantor is duly organized, validly existing and in good standing with full power and authority to own its assets and conduct its business, and is duly qualified and in good standing in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, and such Guarantor has taken all necessary action to authorize the execution, delivery and performance of this Guaranty and the other Loan Documents to which it is a party, and has the power and
9
authority to execute, deliver and perform under this Guaranty, the other Loan Documents to which it is a party and all the transactions contemplated hereby and thereby.
Section 3.6 Proceedings; Enforceability. This Guaranty and the other Loan Documents to which Guarantor is a party have been duly authorized, executed and delivered by Guarantor and constitute a legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Neither this Guaranty nor any other Loan Document to which Guarantor is a party is subject to any right of rescission, set-off, counterclaim or defense by Guarantor, including the defense of usury, nor would the operation of any of the terms of this Guaranty or such other Loan Documents, or the exercise of any right hereunder or thereunder, render this Guaranty or such other Loan Documents unenforceable, and Guarantor not asserted any right of rescission, set-off, counterclaim or defense with respect thereto.
Section 3.7 Legality. The execution, delivery and performance by Guarantor of this Guaranty and the other Loan Documents to which Guarantor is a party, and the consummation of the transactions contemplated hereunder and thereunder, do not and will not contravene or conflict with any law, statute or regulation whatsoever to which Guarantor is subject, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the breach of, any indenture, mortgage, charge, lien, contract, agreement or other instrument to which Guarantor is a party or by which Guarantor or any of Guarantor’s property is bound.
Section 3.8 Consents. No consent, approval, authorization or order of any court or Governmental Authority is required for the execution, delivery and performance by Guarantor of, or compliance by Guarantor with, this Guaranty or the other Loan Documents to which Guarantor is a party, or the consummation of the transactions contemplated hereby or thereby, other than those which have been obtained by Guarantor.
Section 3.9 Litigation; Full and Accurate Disclosure. There is no action, suit, proceeding or investigation pending or, to the best of Guarantor’s knowledge, threatened in writing against Guarantor in any court or by or before any other Governmental Authority, which, in each case involves a risk of any judgment or liability not fully covered by insurance (other than any deductible) which, if adversely determined, could be reasonably expected to have a material adverse effect on the condition (financial or otherwise) or business of Guarantor, or could reasonably be expected to materially impair the ability of Guarantor to carry out the obligations contemplated by this Guaranty). There is no material fact presently known to Guarantor which has not been disclosed to Agent which adversely affects, nor as far as Guarantor can foresee, is reasonably likely to adversely affect, the Property or the Collateral or the business, operations or condition (financial or otherwise) of Borrower or Guarantor.
Section 3.10 Survival. All representations and warranties made by Guarantor herein shall survive the execution hereof.
10
ARTICLE 4
SUBORDINATION OF CERTAIN INDEBTEDNESS
Section 4.1 Subordination of All Guarantor Claims. As used herein, the term “Guarantor Claims” shall mean all debts and liabilities of Borrower to Guarantor, whether such debts and liabilities now exist or are hereafter incurred or arise, and whether the obligations of Borrower thereon be direct, contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of whether such debts or liabilities be evidenced by note, contract, open account, or otherwise, and irrespective of the Person or Persons in whose favor such debts or liabilities may, at their inception, have been, or may hereafter be, created, or the manner in which they have been, or may hereafter be, acquired by Guarantor. The Guarantor Claims shall include, without limitation, all rights and claims of Guarantor against Borrower (arising as a result of subrogation or otherwise) as a result of Guarantor’s payment of all or a portion of the Guaranteed Obligations. So long as any portion of the Obligations or the Guaranteed Obligations remains outstanding, Guarantor shall not receive or collect, directly or indirectly, from Borrower or any other Person any amount upon the Guarantor Claims.
Section 4.2 Claims in Bankruptcy; Subrogation. In the event of any receivership, bankruptcy, reorganization, arrangement, debtor’s relief or other insolvency proceeding involving Guarantor as a debtor, Agent shall have the right to prove its claim in any such proceeding so as to establish its rights hereunder and receive directly from the receiver, trustee or other court custodian dividends and payments which would otherwise be payable upon Guarantor Claims. Guarantor hereby assigns such dividends and payments to Agent and Lender. At any time while the Obligations are outstanding (other than, so long as no Guaranteed Obligations are then due and owing to Lender, with respect to another Guarantor), should Agent and Lender receive, for application against the Guaranteed Obligations, any dividend or payment which is otherwise payable to Guarantor and which, as between Borrower and Guarantor, shall constitute a credit against the Guarantor Claims, then, upon payment to Agent and Lender in full of the Obligations and the Guaranteed Obligations, Guarantor shall become subrogated to the rights of Agent and Lender to the extent that such payments to Agent and Lender on the Guarantor Claims have contributed toward the liquidation of the Guaranteed Obligations, and such subrogation shall be with respect to that proportion of the Guaranteed Obligations which would have been unpaid if Agent and Lender had not received dividends or payments upon the Guarantor Claims. Notwithstanding the foregoing, Guarantor may assert any claim or seek contribution, indemnification or any other form of reimbursement from any other party liable for the payment of any or all of the Guaranteed Obligations (other than Borrower) in respect of a payment made by such Guarantor of the Guaranteed Obligations (each a “Contribution Claim”), provided that any payment made pursuant to such Contribution Claim shall be paid directly to Agent until such time that Agent shall have been paid the full amount of any underlying Guaranteed Obligation which is the basis of such Contribution Claim, together with all other outstanding claims by Agent on account of the Guaranteed Obligations.
Section 4.3 Payments Held in Trust. Notwithstanding anything to the contrary contained in this Guaranty, in the event that Guarantor should receive any funds, payments, claims and/or distributions which are prohibited by this Guaranty, Guarantor agrees to hold in trust for Agent and Lender an amount equal to the amount of all funds, payments, claims and/or distributions so received, and agrees that it shall have absolutely no dominion over the amount of
11
such funds, payments, claims and/or distributions so received except to pay such funds, payments, claims and/or distributions promptly to Agent and Lender, and Guarantor covenants promptly to pay the same to Agent and Lender.
Section 4.4 Liens Subordinate. Guarantor agrees that any liens, security interests, judgment liens, charges or other encumbrances upon Borrower’s assets securing payment of the Guarantor Claims shall be and remain inferior and subordinate to any liens, security interests, judgment liens, charges or other encumbrances upon Borrower’s assets securing payment of the Guaranteed Obligations, regardless of whether such encumbrances in favor of Guarantor or Agent and Lender presently exist or are hereafter created or attach. Without the prior written consent of Agent, Guarantor shall not (i) exercise or enforce any creditor’s rights it may have against Borrower, or (ii) foreclose, repossess, sequester or otherwise take steps or institute any action or proceedings (judicial or otherwise, including, without limitation, the commencement of, or the joinder in, any liquidation, bankruptcy, rearrangement, debtor’s relief or insolvency proceeding) to enforce any liens, mortgages, deeds of trust, security interests, collateral rights, judgments or other encumbrances on the assets of Borrower held by Guarantor. The foregoing shall in no manner vitiate or amend, nor be deemed to vitiate or amend, any prohibition in the Loan Documents against Borrower granting liens or security interests in any of its assets to any Person other than Agent.
ARTICLE 5
COVENANTS
Section 5.1 Definitions. As used in this Article 5, the following terms shall have the respective meanings set forth below:
(a) “Debt Service Coverage Ratio” has the meaning set forth in the Loan Agreement.
(b) “Liquid Asset” shall mean any of the following, but only to the extent owned individually, free of all security interests, liens, pledges, charges or any other encumbrance: (a) cash, (b) certificates of deposit (with a maturity of two years or less) issued by, or savings account with, any bank or other financial institution reasonably acceptable to Agent, (c) marketable securities listed on the New York Stock Exchange or NASDAQ (or any successors thereto) or any other national or international exchange reasonably acceptable to Agent, marked to market, and (d) any line of credit running directly to the Guarantor; provided that Liquid Assets shall not include any asset that is a part of the Property or that is otherwise part of the collateral for the Loan other than distributions made to Guarantor from Borrower (directly or indirectly) to the extent expressly permitted by the Loan Documents.
(c) “Net Worth” shall mean, as of a given date, (i) a Guarantor’s total assets as of such date (exclusive of any interest in the Property or the Collateral or in any other asset that is part of the collateral for the Loan) less (ii) Guarantor’s total liabilities as of such date (exclusive of any liability under the Loan Documents), determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles.
12
Section 5.2 Covenants. Until all of the Obligations and Guaranteed Obligations have been paid in full, Guarantor collectively (i) shall maintain, in the aggregate, (x) a Net Worth of not less than $90,000,000.00 (the “Net Worth Threshold”) and (y) Liquid Assets of not less than $8,000,000.00 (the “Liquid Assets Threshold”) and (ii) shall not sell, pledge, mortgage or otherwise transfer any of its assets, or any interest therein, on terms materially less favorable than would be obtained in an arms-length transaction or if such transaction would cause the collective Net Worth of Guarantor to fall below the Net Worth Threshold or the collective Liquid Assets of Guarantor to fall below the Liquid Assets Threshold.
Section 5.3 Prohibited Transactions. Guarantor shall not, at any time while a default in the payment of the Guaranteed Obligations has occurred and is continuing, either (i) enter into or effectuate any transaction with any Affiliate that would reduce the collective Net Worth of Guarantor below the Net Worth Threshold (including the payment of any dividend or distribution to a shareholder, or the redemption, retirement, purchase or other acquisition for consideration of any stock or other ownership interest in Guarantor) or (ii) sell, pledge, mortgage or otherwise transfer to any Person any of Guarantor’s assets, or any interest therein, in each case, other than for reasonably equivalent value.
Section 5.4 Financial Statements. Each Guarantor (as to itself only) shall deliver to Agent:
(a) within 120 days after the end of each calendar year, (x) with respect to Principal Guarantors, an unaudited balance sheet and (y) with respect to Entity Guarantor, an audited balance sheet (provided, that, if the financials of Entity Guarantor are publicly available, such balance sheet may be unaudited), in each case, of such Guarantor as of the end of such calendar year substantially similar (in form and content) to the balance sheet delivered to Agent in connection with the origination of the Loan, determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles, (A) setting forth in reasonable detail (provided that setting forth such Guarantor’s Net Worth in the level of detail reflected in such Guarantor financial statements delivered in connection with the closing of the Loan shall be reasonable) such Guarantor’s Net Worth and Liquid Assets as of the end of such prior calendar year and based on such balance sheet, and (B) certifying (or accompanied by a certificate signed by a representative of Guarantor certifying) that such annual financial statements are true, correct, accurate and complete in all material respects and fairly present, as of the date of such financial statements, the financial condition and results of the operations of such Guarantor determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles;
(b) within 40 days after the end of each calendar quarter, (x) with respect to Principal Guarantors, an unaudited balance sheet and (y) with respect to Entity Guarantor, an audited balance sheet (provided, that, if the financials of Entity Guarantor are publicly available, such balance sheet may be unaudited), in each case, of such Guarantor as of the end of such quarter substantially similar (in form and content) to the balance sheet delivered to Agent in connection with the origination of the Loan, determined (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles, (A) setting forth in reasonable detail any material changes from the last
13
annual financial statement delivered to Agent by such Guarantor and setting forth in reasonable detail (provided that setting forth such Guarantor’s Net Worth in the level of detail reflected in such Guarantor’s financial statements delivered in connection with the closing of the Loan shall be reasonable) such Guarantor’s Net Worth and Liquid Assets as of the end of such prior calendar quarter and based on the foregoing quarterly financial statements, and (B) certifying (or accompanied by a certificate signed by a representative of Guarantor certifying) that such quarterly financial statements are true, correct, accurate and complete in all material respects and fairly present, as of the date of such financial statements, the financial condition and results of the operations of such Guarantor (x) with respect to Principal Guarantors, on an income tax basis and (y) with respect to Entity Guarantor, in accordance with generally accepted accounting principles;
(c) within 30 days after the date filed, a complete copy of such Guarantor’s tax return certified by such Guarantor; and
(d) within 20 days after request by Agent, such other financial information with respect to such Guarantor as Agent may reasonably request.
Section 5.5 Additional Covenants
(a) Existence; Compliance with Legal Requirements. Guarantor shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence and all rights, licenses, permits, franchises and all applicable governmental authorizations necessary for the operation of its business and comply with all Legal Requirements applicable to it and its assets. Guarantor shall not engage in any dissolution, liquidation or consolidation or merger with or into any other business entity without obtaining the prior consent of Agent.
(b) Litigation. Guarantor shall give prompt notice to Agent of any litigation or governmental proceedings pending or threatened in writing against Guarantor which, if adversely determined, could reasonably be expected to materially adversely affect Guarantor’s condition (financial or otherwise) or business (including Guarantor’s ability to perform its Obligations hereunder or under the other Loan Documents to which it is a party).
(c) Patriot Act. Guarantor will use its good faith and commercially reasonable efforts to comply with the Patriot Act and all applicable requirements of Governmental Authorities having jurisdiction over Guarantor, including those relating to money laundering and terrorism.
(d) Further Assurances. Guarantor shall, at Guarantor’s sole cost and expense:
(i) cure any defects in the execution and delivery of the Loan Documents to which Guarantor is a party and execute and deliver, or cause to be executed and delivered, to Agent such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to correct any omissions in the Loan Documents to which Guarantor is a party, as Agent may reasonably require; and
(ii) so long as it does not expand the obligations or materially reduce the benefits to Borrower or Guarantor under the Loan Documents, except, in each case, other than to a de minimis extent, do and execute all and such further lawful and reasonable acts, conveyances
14
and assurances for the better and more effective carrying out of the intents and purposes of this Guaranty and the other Loan Documents to which Guarantor is a party, as Agent may reasonably require from time to time.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Waiver. No failure to exercise, and no delay in exercising, on the part of Agent, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of Agent hereunder shall be in addition to all other rights provided by law. No modification or waiver of any provision of this Guaranty, nor any consent to any departure therefrom, shall be effective unless in writing and no such consent or waiver shall extend beyond the particular case and purpose involved. No notice or demand given in any case shall constitute a waiver of the right to take other action in the same, similar or other instances without such notice or demand.
Section 6.2 Notices. All notices, demands, requests, consents, approvals or other communications (any of the foregoing, a “Notice”) required, permitted or desired to be given hereunder shall be in writing and shall be sent by telefax (with answer back acknowledged) or delivered by hand or by reputable overnight courier, addressed to the party to be so notified at its address hereinafter set forth, or to such other address as such party may hereafter specify in accordance with the provisions of this Section 6.2. Any Notice shall be deemed to have been received: (a) on the date of sending by telefax if sent during business hours on a Business Day (otherwise on the next Business Day), (b) on the date of delivery by hand if delivered during business hours on a Business Day (otherwise on the next Business Day), and (c) on the next Business Day if sent by an overnight commercial courier, in each case addressed to the parties as follows:
If to Agent: DL RCF I Loan Holdings, LLC
c/o Derby Lane Partners LLC
12 East 49th Street, Suite 1519
New York, New York 10017
Attention: Urian Yap
Email: [email protected]
with a copy to: Gibson Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention: Matthew Kidd, Esq.
Email: [email protected]
If to Principal Guarantors:
Adam Friedberg
3834 N. Lakewood Avenue
Chicago, Illinois 60613
Email: [email protected]
15
Anthony Hrusovsky
531 E Scranton Avenue
Lake Bluff, Illinois 60044
Email: [email protected]
Peter Koch
1509 Kaywood Lane
Glenview, Illinois 60025
Email: [email protected]
with a copy to: Patzik, Frank & Samotny Ltd.
200 South Wacker Drive – Suite 2700
Chicago, Illinois 60606
Attention: John W. Morse
Facsimile No. (312) 551-1101
Email: [email protected]
If to Entity Guarantor:
ACRES Commercial Realty Corp.
390 RXR Plaza
Uniondale, New York 11556
Attention: Jaclyn Jesberger
Email: [email protected]
with a copy to: Murland Dainoff LLC
555 E. Lancaster Avenue, Suite 501
Radnor, Pennsylvania 19087
Attention: Harris A. Dainoff, Esquire
Email: [email protected]
Any party may change the address to which any such Notice is to be delivered by furnishing ten (10) days’ written notice of such change to the other parties in accordance with the provisions of this Section 6.2. Notices shall be deemed to have been given on the date set forth above, even if there is an inability to actually deliver any Notice because of a changed address of which no Notice was given or there is a rejection or refusal to accept any Notice offered for delivery. Notice for any party may be given by its respective counsel. Additionally, Notice from Agent may also be given by Servicer.
Section 6.3 Governing Law; Jurisdiction; Service of Process. (a) THIS GUARANTY WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY GUARANTOR AND ACCEPTED BY AGENT IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THE NOTE WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION RELATED HERETO, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING
16
THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS GUARANTY AND/OR THE OTHER LOAN DOCUMENTS, AND THIS GUARANTY AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST AGENT OR GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY, AT AGENT’S OPTION, BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND GUARANTOR WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. EACH GUARANTOR DOES HEREBY DESIGNATE AND APPOINT:
Corporation Service Company
19 West 44th Street, Suite 200
New York, NY 10036
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND EACH GUARANTOR AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO SUCH GUARANTOR IN THE MANNER PROVIDED HEREIN SHALL CONCLUSIVELY BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON SUCH GUARANTOR IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. EACH GUARANTOR (I) SHALL GIVE PROMPT NOTICE TO AGENT OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS AND WHICH SUBSTITUTE AGENT SHALL BE THE SAME AGENT DESIGNATED BY BORROWER UNDER THE LOAN AGREEMENT), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE
17
AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY GUARANTOR IN ANY OTHER JURISDICTION.
Section 6.4 Invalid Provisions. If any provision of this Guaranty is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Guaranty, such provision shall be fully severable and this Guaranty shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Guaranty, and the remaining provisions of this Guaranty shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Guaranty, unless such continued effectiveness of this Guaranty, as modified, would be contrary to the basic understandings and intentions of the parties as expressed herein.
Section 6.5 Amendments. This Guaranty may be amended only by an instrument in writing executed by the party(ies) against whom such amendment is sought to be enforced.
Section 6.6 Parties Bound; Assignment. This Guaranty shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, permitted assigns, heirs and legal representatives. Agent shall have the right to assign or transfer its rights under this Guaranty in connection with any assignment of the Loan and the Loan Documents. Any assignee or transferee of Agent shall be entitled to all the benefits afforded to Agent under this Guaranty. Guarantor shall not have the right to assign or transfer its rights or obligations under this Guaranty without the prior written consent of Agent, and any attempted assignment without such consent shall be null and void.
Section 6.7 Headings. Section headings are for convenience of reference only and shall in no way affect the interpretation of this Guaranty.
Section 6.8 Recitals. The recitals and introductory paragraphs hereof are a part hereof, form a basis for this Guaranty and shall be considered prima facie evidence of the facts and documents referred to therein.
Section 6.9 Counterparts. To facilitate execution, this Guaranty may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Guaranty to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto. Any signature page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature pages.
Section 6.10 Rights and Remedies. If Guarantor becomes liable for any indebtedness owing by Borrower to Agent or any Lender, by endorsement or otherwise, other than under this Guaranty, such liability shall not be in any manner impaired or affected hereby and the rights of
18
Agent and Lender hereunder shall be cumulative of any and all other rights that Agent or any Lender may ever have against Guarantor. The exercise by Agent and Lender of any right or remedy hereunder or under any other instrument, or at law or in equity, shall not preclude the concurrent or subsequent exercise of any other right or remedy.
Section 6.11 Entirety. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF GUARANTOR AND AGENT AND LENDER WITH RESPECT TO GUARANTOR’S GUARANTY OF THE GUARANTEED OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR AND AGENT AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF DEALING BETWEEN GUARANTOR AND AGENT AND LENDER, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND AGENT AND LENDER.
Section 6.12 Waiver of Right To Trial By Jury. GUARANTOR AND, BY ITS ACCEPTANCE HEREOF, AGENT AND LENDER, EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE NOTE, THE MORTGAGE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY GUARANTOR AND, BY ITS ACCEPTANCE HEREOF, AGENT AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF GUARANTOR, LENDER AND AGENT IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE OTHER PARTY.
Section 6.13 New York Provisions. Guarantor acknowledges and agrees that this Guaranty is, and is intended to be, an instrument for the payment of money only, as such phrase is used in Section 3213 of the Civil Practice Law and Rules of the State of New York, that Guarantor has been fully advised by its counsel of Lender’s rights and remedies pursuant to such Section 3213 and that Guarantor expressly waives any right, and hereby agrees not, to assert that this Guaranty is not such an instrument.
Section 6.14 Cooperation. Guarantor acknowledges that Agent and Lender and their successors and assigns may effectuate a “Secondary Market Transaction” in accordance with Article 9 of the Loan Agreement. Subject to the terms, conditions and limitations set forth in the
19
Loan Agreement, Guarantor shall cooperate with Agent and Lender in effecting any such Secondary Market Transaction and shall provide (or cause Borrower to provide) such information and materials as may be required or necessary pursuant to Section 9.1 and Section 9.2 of the Loan Agreement. Agent and Lender shall be permitted to share all such information with the investment banking firms, rating agencies, accounting firms, law firms and other third party advisory firms involved with the Loan and the Loan Documents or the applicable Secondary Market Transaction, provided that such parties are advised of the confidential nature of any information that is clearly marked as confidential information or that is not otherwise publicly available or known to Agent from another source. It is understood that the information provided by Guarantor to Agent and Lender may ultimately be disclosed to purchasers and potential purchasers in connection with a Secondary Market Transaction. Agent, Lender, and all of the aforesaid third party advisers and professional firms shall be entitled to rely on the information supplied by, or on behalf of, Guarantor in the form as provided by Guarantor. Agent and Lender may publicize the existence of the Loan in connection with its marketing for a Secondary Market Transaction or otherwise as part of its business development.
Section 6.15 Reinstatement in Certain Circumstances. If at any time any payment of the principal of or interest under the Note or any other amount payable by Borrower under the Loan Documents is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of Borrower or otherwise, Guarantor’s obligations hereunder with respect to such payment shall be reinstated as though such payment had been due but not made at such time.
Section 6.16 Gender; Number; General Definitions. Unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein, (a) words used in this Guaranty may be used interchangeably in the singular or plural form, (b) any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, (c) the word “Borrower” shall mean “each Borrower and any subsequent owner or owners of the Property or any part thereof or interest therein”, (d) the word “Agent” shall mean “Agent and any subsequent holder of the Note”, (e) the word “Note” shall mean “the Note and any other evidence of indebtedness secured by the Loan Agreement”, (f) the word “Property” shall include any portion of the Property and any interest therein, and (g) the phrases “attorneys’ fees”, “legal fees” and “counsel fees” shall include any and all out-of-pocket attorneys’, paralegal and law clerk fees and disbursements of outside counsel, including, but not limited to, fees and disbursements at the pre-trial, trial and appellate levels, incurred or paid by Agent in protecting its interest in the Property, the Collateral, the Leases and/or the Rents and/or in enforcing its rights hereunder.
20
Section 6.17 Joint and Several. If there is more than one Guarantor, the obligations and liabilities of each Guarantor hereunder are joint and several. Without in any way limiting the obligations of Guarantor hereunder, the parties hereto acknowledge that the defined term “Guarantor” collectively includes each individual Guarantor and that it is the intent of the parties hereto in determining whether (a) a breach of a representation or a covenant has occurred or (b) there has occurred a default hereunder, that any such breach, occurrence, or event with respect to any individual Guarantor shall be deemed to be such a breach, occurrence or event with respect to every Guarantor and that each individual Guarantor need not have been involved with such breach, occurrence or event in order for the same to be deemed such a breach, occurrence or event with respect to every individual Guarantor.
Section 6.18 Fully Recourse. All of the terms and provisions of this Guaranty are recourse obligations of Guarantor and not restricted by any limitation on personal liability set forth in any of the Loan Documents.
Section 6.19 Exculpation. Section 9.4 of the Loan Agreement is hereby incorporated by reference as if set forth at length herein.
Section 6.20 Unsecured Obligations. The obligations of Guarantor under this Guaranty are not secured by the lien of the Mortgage or the security interests or other collateral described in the Mortgage or the other Loan Documents, it being the intent of Agent and Lender to create separate obligations of Guarantor hereunder which can be enforced against Guarantor without regard to the existence of the Mortgage or other Loan Documents or the liens or security interests created therein.
Section 6.21 Incorporation by Reference. To the extent that any provisions or defined terms contained in any other Loan Document (including, without limitation, the Loan Agreement) are used herein or incorporated herein by reference, and such other Loan Document is terminated or otherwise satisfied prior to the termination of this Guaranty, then, for the avoidance of doubt, such provisions and/or defined terms shall survive until the satisfaction of the Obligations without regard to the fact that the Loan Document originally containing the same has been otherwise terminated or satisfied.
Section 6.22 Non-Duplication of Guaranty Payments. Payments by Guarantor of amounts due hereunder shall be without duplication of any amounts paid for the identical liability under the Guaranty (as defined in the Loan Agreement) and/or the Guaranty of Completion by Guarantor in favor of Agent of even date herewith (e.g., if Agent makes a claim requiring Guarantor to satisfy Borrower’s obligation to pay certain Taxes under the Guaranty of Completion and also a claim under this Guaranty to pay the same Taxes, Guarantor’s payment of such obligation pursuant to the Guaranty of Completion shall satisfy Guarantor’s obligation hereunder to pay the same, and vice versa).
Section 6.23 Limitation on Liability. Notwithstanding any provisions of this Guaranty to the contrary, Guarantor shall not have any liability under this Guaranty (a) to the extent such liability arises solely as a result of the fraud, gross negligence or willful misconduct of Agent or Lender, or (b) for any special, punitive or consequential damages of any kind of nature unless such damages are actually incurred by, or asserted against, Agent or Lender.
21
[NO FURTHER TEXT ON THIS PAGE]
22
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and year first above written.
GUARANTOR:
/s/ Adam Friedberg |
Adam Friedberg, an individual |
/s/ Anthony Hrusovsky |
Anthony HrusovSKy, an individual |
/s/ Peter Koch |
Peter koch, an individual |
ACRES COMMERCIAL REALTY CORP.,
a Maryland corporation
By: |
/s/ Mark S. Fogel |
|
Name: Mark S. Fogel Title: President |
[Signature Page to Guaranty of Interest and Carry Costs]
EXHIBIT A
Tender Conditions
(a) a duly authorized, executed, binding and enforceable special warranty deed to the Property (with covenants against grantor’s acts) in suitable form for recording (a “DIL”);
(b) Guarantor pays to Lender an amount equal to the sum of: (i) all Carry Costs then due and payable as of the Tender Date pursuant to this Guaranty, plus (ii) all Carry Costs reasonably anticipated to be incurred through the period ending six (6) months after the Tender Date;
(c) duly authorized, executed, binding and enforceable assignment of leases and contracts and bill of sale, which absolutely and unconditionally transfer and convey, to the fullest extent transferable or assignable, Borrower’s interest in all leases, contracts, intangibles and personal property associated with the Property, including, without limitation, operating contracts, material agreements, management agreements, construction agreements and contracts, architect’s contracts, engineer’s contracts, plans and specifications and all other contracts, agreements, licenses, permits and other rights held by the Borrower or its Affiliates with respect to the Property, together with originals or copies of all leases, service contracts, building permits, certificates of occupancy, and other governmental permits, subdivision maps, licenses and approvals for the Property, all surveys, structural, mechanical, engineering, electrical, soil, environmental, and similar reports and studies, to the extent any of the above exist and are in the possession or control of Borrower or Guarantor;
(d) a duly authorized, executed, binding and enforceable release of Agent, Lender, their respective Affiliates and their respective employees, agents, officers, directors, shareholders and members (collectively with their successors and assigns, the “Guaranteed Parties”) in form and substance reasonably acceptable to Agent, pursuant to which Borrower and each Guarantor (on their own behalf and on behalf of their respective Affiliates) shall, effective as of the date of Agent’s recording of the DIL, fully release each Guaranteed Party and its Affiliates from any and all claims pertaining to the Loan and the Property;
(e) a new owner’s title insurance policy in the full amount of the Debt together with fully executed owner’s affidavit, authorization documents and other documents reasonably required by a reputable third-party national title insurance company in order to insure the Property as of the Tender Date, free and clear of all liens, security interests and other encumbrances, except for Permitted Encumbrances and any other Liens to which Agent has consented in writing, each in form and substance reasonably acceptable to such title insurance company, together with an amount sufficient to pay for all premiums and costs related thereto with a policy equal to the maximum amount of the Loan;
(f) corporate or similar resolutions of or on behalf of Borrower authorizing the transactions contemplated in connection with the Transfer of the Property pursuant to the DIL, along with such other documents as reasonably required by the title company in order to issue a title insurance policy in favor of the transferee pursuant to the title commitment referenced above
[Exhibit A]
on this Exhibit A and otherwise to provide evidence reasonably satisfactory to Agent that the consummation of the DIL does not violate any restriction that may be of record;
(g) all cash and non-cash security (and an assignment of such non-cash security, if applicable), prepaid Rents (if any), in any Borrower Party’s possession or control, and any other deposits and/or escrows relating to the Property, if any, in any Borrower Party’s possession or control;
(h) all required state and city transfer tax returns and documents required in connection therewith, properly completed, duly executed and acknowledged, and a bank check or wire transfer of funds in the amount of all city and state transfer taxes due in connection with the DIL, together with payment of any and all other out-of-pocket expenses actually incurred by Agent or Lender in connection with the conveyance of the Property, including, without limitation, reasonable legal fees incurred by Agent and Lender in connection therewith and out-of-pocket expenses related thereto;
(i) Borrower and each Guarantor shall enter into an agreement for the benefit of Agent (for the benefit of Lender) agreeing to take such further actions and deliver such documents as may be reasonably necessary to effectuate the transfers contemplated by the DIL transaction;
(j) an environmental Phase I site assessment of the Property (a “Phase I”) which Phase I substantially complies with the American Society for the Testing of Materials (“ASTM”) E1 527-00 standard for audits and is performed by an environmental firm satisfactory to Agent, and such Phase I does not identify any Recognized Environmental Conditions as defined in ASTM E1 527-00 that require any remedial action or violate applicable environmental law (other than those conditions expressly identified in the environmental assessments delivered to Agent on or prior to the date hereof);
(k) originals of all documents directly or indirectly pertaining to the Property in the possession or control of the Borrower or any of its Affiliates (or copies, if originals are not in such possession or control);
(l) an assignment in form, scope and substance acceptable to Agent which absolutely and unconditionally transfers and conveys, to the fullest extent transferable or assignable, Borrower’s interest in all Policies and all claims thereunder, together with payment (by check or wire) in an amount equal to the deductible under any outstanding claims as of such date;
(m) as of the Tender Date, Borrower and/or Guarantor shall have paid all Debt Service (including interest at the Default Rate, provided, however, if the Tender Date occurs within sixty (60) days following the Event of Default, the interest shall accrue at the Interest Rate but not the Default Rate) and other amounts (for the avoidance of doubt, excluding repayment of the Outstanding Principal Balance and the Minimum Return Amount) then due and payable to Agent and/or Lender pursuant to the Loan Documents;
(n) payment of all reasonable actual out-of-pocket costs and expenses incurred by Agent and Lender in connection with the Valid Tender;
[Exhibit A]
(o) Final Completion shall have occurred; and
(p) all other claims then outstanding which Agent or Lender may have hereunder, under the Environmental Indemnity, the Guaranty of Completion (except as set forth in the immediately preceding clause (o) above) and the Guaranty have been satisfied in full.
As used herein, “Tender Date” shall mean the date that all of the conditions in this Exhibit A have been satisfied.
[Exhibit A]
Exhibit 10.5
ENVIRONMENTAL INDEMNITY AGREEMENT
This ENVIRONMENTAL INDEMNITY AGREEMENT (this “Agreement”) is made as of the 12th day of September, 2025, by 65 E. WACKER HOLDINGS II, LLC, a Delaware limited liability company, having an office at 2211 N. Elston Avenue, Suite 306, Chicago, Illinois 60614 (“Borrower”), and ADAM FRIEDBERG, an individual, having a primary address at 3834 N. Lakewood Avenue, Chicago, Illinois 60613, PETER KOCH, an individual, having a primary address at 1509 N. Kaywood Lane, Glenview, Illinois 60025, ANTHONY HRUSOVSKY, an individual, having a primary address at 531 E Scranton Avenue, Lake Bluff, Illinois and ACRES COMMERCIAL REALTY CORP., a Maryland corporation, having an address at 390 RXR Plaza, Uniondale, New York 11556 (individually and collectively, the “Non-Borrower Indemnitor”; and together with Borrower, “Indemnitor” and collectively, “Indemnitors”), in favor of DL RCF I LOAN HOLDINGS, LLC, a Delaware limited liability company (together with its successors and/or assigns, “Agent”), having an address at c/o Derby Lane Partners LLC, 12 E. 49th Street, Suite 1519, New York, New York 10017, in its capacity as administrative agent for itself and on behalf of any other Lender (as defined in the Loan Agreement) (together with its successors and/or assigns, “Indemnitee”) and the other Indemnified Parties (defined below).
RECITALS
A. Agent is prepared to administer and Lender is prepared to make a loan to Borrower in the maximum principal amount of up to SIXTY-TWO MILLION FOUR HUNDRED THOUSAND AND NO/100 DOLLARS ($62,400,000.00) (the “Loan”) pursuant to a certain Loan Agreement, of even date herewith among Borrower, Agent, and Lender (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, collectively, the “Loan Agreement”), which Loan is evidenced by, among other things, the Note (as defined in the Loan Agreement) and is secured by, among other things, the Mortgage (as defined in the Loan Agreement), encumbering certain real property (the “Property”) more particularly described therein. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Loan Agreement.
B. Each Indemnitor acknowledges receipt and approval of copies of the Loan Documents.
C. Each Non-Borrower Indemnitor acknowledges that it owns, either directly or indirectly, a beneficial interest in Borrower and, as a result of such beneficial interest, will receive substantial economic and other benefits from Lender making the Loan to Borrower.
D. Agent is unwilling to administer, and Lender are unwilling to make, the Loan unless Indemnitors agree to provide the indemnification, representations, warranties, covenants and other matters described in this Agreement for the benefit of the Indemnified Parties.
E. Indemnitors are entering into this Agreement to induce Agent to administer, and Lender to make, the Loan.
AGREEMENT
NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Indemnitors hereby represent, warrant, covenant and agree for the benefit of the Indemnified Parties as follows:
1. Environmental Representations and Warranties. Except as otherwise disclosed by that/those report(s) listed on Schedule I attached hereto and made a part hereof in respect of the Property (referred to below as the “Environmental Report(s)”), a copy of which has been provided to Indemnitee, (a) to Indemnitor’s knowledge, there are no Hazardous Substances (defined below) or underground storage tanks in, on, or under the Property, except those that are both (i) substantially in compliance with all applicable Environmental Laws (defined below) and with permits issued pursuant thereto (to the extent such permits are required by law) (ii) fully disclosed to Indemnitee in writing pursuant to the Environmental Report(s); (b) to Indemnitor’s knowledge, there are no past, present or threatened Releases (defined below) of Hazardous Substances in violation of applicable Environmental Law in, on, under or from the Property which have not been, or are not being, remediated in accordance with applicable Environmental Law; (c) to Indemnitor’s knowledge, there is no threat of any Release of Hazardous Substances migrating to the Property, (d) to Indemnitor’s knowledge, there are no past or present non-compliance (other than to a de minimis extent) with Environmental Laws, or with permits issued pursuant thereto, in connection with the Property which has not been, or are not being, remediated in accordance with applicable Environmental Law; (e) Indemnitor does not know of, and has not received, any written notice, information request or other written communication from any Governmental Authority relating to Hazardous Substances on, in, under or originating from the Property or any part thereof or Remediation (defined below) thereof, nor does Indemnitor have any knowledge of any fact, condition, occurrence or circumstance which with notice or passage of time or both would give rise to a claim under or pursuant to any Environmental Law pertaining to Hazardous Substances on, in, under or originating from the Property or any part thereof or arising out of the conduct of Indemnitor; (f) to Indemnitor’s knowledge, no Toxic Mold (as defined below) is present in the indoor air of the Property at concentrations exceeding ambient air levels and no visible Toxic Mold is present on any building materials or surfaces at the Property for which any Legal Requirement applicable to the Property recommends or requires removal thereof by remediation professionals, and Indemnitors are not aware of any conditions at the Property that are likely to result in the presence of Toxic Mold in the indoor air at concentrations that exceed ambient air levels or on building materials or surfaces that would require such removal; (g) to Indemnitor’s knowledge, the Property is not included or proposed for inclusion on the National Priorities List issued pursuant to CERCLA (defined below) by the United States Environmental Protection Agency (the “EPA”) or on the inventory of other potential “Problem” sites issued by the EPA and has not otherwise been identified by the EPA in writing to Borrower as a potential CERCLA site or included or, to Borrower’s knowledge, proposed for inclusion on any list or inventory issued pursuant to any other Environmental Law, if any, or issued by any other Governmental Authority; and (h) Indemnitor has truthfully and fully provided to Indemnitee any and all material information relating to environmental conditions in, on, under or from the Property that is known to any Indemnitor and in Indemnitor’s possession, including, but not limited, to any and all reports commissioned by Indemnitor or its Affiliates and in the possession of Indemnitor and relating to Hazardous Substances in, on, under or from the Property and/or to the environmental condition of the Property.
2
2. Environmental Covenants. Subject to Section 9 hereof, Indemnitors covenant and agree that: (a) all uses and operations on or of the Property by any Indemnitors shall be in compliance with all Environmental Laws and permits issued pursuant thereto and Indemnitors shall use commercially reasonable efforts to ensure that all uses by any Tenant or any other Person are in compliance with all Environmental Laws and any permits issued pursuant thereto; (b) Indemnitors shall not cause or consent to, and shall use commercially reasonable efforts to prevent any Releases of Hazardous Substances in, on, under or from the Property; (c) Indemnitors shall not cause, and shall use commercially reasonable efforts to prevent any Tenant or other Person from causing any Hazardous Substances to be in, on or under the Property, except those that are both (i) in compliance with all Environmental Laws and with any permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in writing; (d) subject to Borrower’s rights under Section 5.1.2 of the Loan Agreement to contest liens and encumbrances, Indemnitors shall keep the Property free and clear of all liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of any Indemnitors or any other Person (the “Environmental Liens”); (e) Indemnitors shall, at their sole cost and expense, fully and expeditiously cooperate in all activities required pursuant to Paragraph 3 of this Agreement, including, but not limited to, providing all relevant information in Indemnitors’ possession or reasonably attainable by Indemnitors and making knowledgeable Persons available for interviews; (f) Indemnitors shall, at their sole cost and expense, pursuant to any reasonable written request of Indemnitee based upon facts giving rise to a reasonable suspicion of a violation of Environmental Laws, of a required Remediation or of a Release and/or during the continuance of an Event of Default, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property (including, but not limited to, sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof, provided that, so long as no Event of Default is continuing, Indemnitee shall not be required to pay for more than one (1) such assessment per year; (g) Indemnitors shall, at their sole cost and expense, comply with all reasonable written requests of Indemnitee to (i) effectuate Remediation of any condition (including, but not limited to, a Release of a Hazardous Substance) in, on, under or from the Property to the extent required by applicable Environmental Laws; (ii) comply with any Environmental Law; (iii) comply with any directive from any Governmental Authority related to the environmental condition of the Property; and/or (iv) take any other reasonable action necessary or appropriate for protection of human health or the environment with respect to environmental matters to the extent required or recommended under applicable Environmental Laws; (h) none of Indemnitors shall do or intentionally or willfully allow any tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property), impairs or could reasonably be expected to impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste or violates any covenant, condition, agreement or easement applicable to the Property; (i) if at any time after the date hereof, it is determined or reasonably suspected by Borrower or Indemnitee that the Property contains paint containing more than 0.5% lead by dry weight (“Lead Based Paint”), then upon Indemnitee’s written request Borrower shall cause an assessment report describing the location and condition of the Lead Based Paint (a “Lead Based Paint Report”), at Indemnitor’s sole cost and expense within twenty (20) days thereafter, to be prepared by an expert, in form,
3
scope and substance reasonably acceptable to Indemnitee; (j) if at any time after the date hereof, it is determined or reasonably suspected by Borrower or Indemnitee that the Property contains asbestos or asbestos-containing material (“Asbestos”), then upon Indemnitee’s written request Borrower shall cause an assessment report describing the location and condition of the Asbestos (an “Asbestos Report”), at Indemnitor’s sole cost and expense within thirty (30) days thereafter, to be prepared by an expert, in form, scope and substance, acceptable to Indemnitee; (k) if at any time hereafter it is, determined by Borrower or Indemnitee that the Property contains Lead Based Paint or Asbestos, on or before thirty (30) days following Indemnitee’s written request, Indemnitors shall, at their sole cost and expense, develop and implement, and thereafter diligently and continuously carry out (or cause to be developed and implemented and thereafter diligently and continually to be carried out), an operations, abatement and maintenance plan for the Lead Based Paint and/or Asbestos, as applicable, on the Property, which plan shall be prepared by an expert, and be in form, scope and substance, reasonably acceptable to Indemnitee (together with any Lead Based Paint Report and/or Asbestos Report, as applicable, the “O&M Plan”), and if an O&M Plan has been prepared prior to the date hereof, Indemnitors agree to diligently and continually carry out (or cause to be carried out) the provisions thereof, it being understood and agreed that compliance with the O&M Plan shall require or be deemed to require, without limitation, the proper preparation and maintenance of all records, papers and forms required under the Environmental Laws; (l) in the event that any inspection or audit by Borrower, Indemnitee or a Governmental Authority reveals the presence of Toxic Mold in the indoor air of the Property at concentrations exceeding ambient air levels permitted under applicable law or visible Toxic Mold on any building materials or surfaces at the Property for which any Legal Requirement applicable to the Property requires or recommends removal thereof, Indemnitors shall promptly take all commercially reasonable actions necessary to remediate the Toxic Mold and perform post-remedial clearance sampling, following which abatement of the Toxic Mold, upon Indemnitee’s written request, Indemnitors shall prepare and implement an Operations and Maintenance Plan for Toxic Mold and Moisture acceptable to Indemnitee and in accordance with the guidelines issued by the National Multi Housing Council; and (m) Indemnitors shall promptly notify Indemnitee in writing upon Indemnitors becoming aware of (A) any Release or threatened Release of Hazardous Substances in, on, under, from or migrating towards the Property in violation of applicable Environmental Laws; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien in connection with the Property; (D) any required or proposed Remediation of environmental conditions relating to the Property; and/or (E) any written notice or other written communication of which any Indemnitor becomes aware from any source whatsoever (including, but not limited to, any Governmental Authority) relating in any way to Hazardous Substances or Remediation thereof in connection with the Property, possible liability of any Person pursuant to any Environmental Law in connection with the Property, other environmental conditions in connection with the Property or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement.
3. Indemnified Rights/Cooperation and Access. In the event the Indemnified Parties have evidence that an environmental hazard exists on the Property that does not, in the sole but good faith discretion of the Indemnified Parties, (a) endanger any tenants or other occupants of the Property or their guests or the general public, or (b) materially and adversely affect the value of the Property, upon reasonable notice from Indemnitee, Indemnitors shall, at Indemnitors’ sole cost and expense, promptly cause an engineer or consultant reasonably satisfactory to the
4
Indemnified Parties to conduct an environmental assessment and/or audit (the scope of which shall be prepared by Indemnitor subject to approval in the reasonable discretion of the Indemnified Parties) and take any samples of soil, groundwater or other water, air or building materials or any other invasive testing reasonably requested by Indemnitee and promptly deliver to Indemnitee the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to Indemnitee within a reasonable period or if the Indemnified Parties have reason to believe that an environmental hazard exists on the Property that, in the reasonable judgment of the Indemnified Parties, endangers any tenant or other occupant of the Property or their guests or the general public or could be reasonably expected to materially and adversely affect the value of the Property, upon reasonable notice to Indemnitors, the Indemnified Parties and any other Person reasonably designated by the Indemnified Parties, including, but not limited to, any receiver, any representative of any Governmental Authority and/or any environmental consultant, shall have the right, but not the obligation, to enter upon the Property at all reasonable times (subject to the rights of tenants), accompanied by a representative of Indemnitor, to assess any and all aspects of the environmental condition of the Property and its use, including, but not limited to, conducting any environmental assessment or audit (the scope of which shall be determined in the sole and absolute discretion of the Indemnified Parties) and taking samples of soil, groundwater or other water, air or building materials and reasonably conducting other invasive testing, if reasonably requested by Indemnitee. Indemnitors shall reasonably cooperate with and provide the Indemnified Parties and any such Person designated by the Indemnified Parties with access to the Property.
4. Indemnification. Indemnitors covenant and agree, at their sole cost and expense, to protect, defend, indemnify, release and hold Indemnified Parties harmless from and against any and all Losses (defined below) imposed upon, or incurred by, or asserted against, any Indemnified Parties to the extent directly or indirectly arising out of, in connection with, or derived from any one or more of the following: (a) any presence of any Hazardous Substances in, on, above or under the Property; (b) any past, present or threatened Release of Hazardous Substances in, on, above, under or from the Property; (c) any activity by any Indemnitors, any Person affiliated with any Indemnitors and/or any tenant or other user of the Property in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Property of any Hazardous Substances at any time located in, under, on or above the Property; (d) any activity by any Indemnitors, any Person affiliated with any Indemnitors and/or any tenant or other user of the Property in connection with any actual or proposed Remediation of any Hazardous Substances at any time located in, under, on or above the Property, whether or not such Remediation is voluntary or pursuant to court or administrative order, including, but not limited to, any removal, remedial or corrective action; (e) any past, present or threatened non-compliance with or violation of any Environmental Law (or of any permit issued pursuant to any Environmental Law) in connection with the Property or operations thereon, including, but not limited to, any failure by any Indemnitors, any Person affiliated with any Indemnitors and/or any tenant or other user of the Property to comply with any order of any Governmental Authority in connection with any Environmental Laws; (f) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Property; (g) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; (h) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Property, including, but not limited to, costs to investigate and assess such
5
injury, destruction or loss; (i) any acts of any Indemnitors, any Person affiliated with any Indemnitors and/or any tenant or other user of the Property in arranging for the disposal or treatment, or arranging with a transporter for transport for the disposal or treatment, of Hazardous Substances at any facility or incineration vessel containing such or similar Hazardous Substances; (j) any acts of any Indemnitors, any Person affiliated with any Indemnitors and/or any tenant or other user of the Property in accepting any Hazardous Substances for transport to disposal or treatment facilities, incineration vessels or sites from which there is a Release or a threatened Release of any Hazardous Substance which causes the incurrence of costs for Remediation; (k) any personal injury, wrongful death or property or other damage arising under any statutory or common law or tort law theory, including, but not limited to, damages assessed for private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Property, in each case relating to Hazardous Substances; and (l) any misrepresentation or inaccuracy in any representation or warranty or material breach or failure to perform any covenants or other obligations pursuant to this Agreement.
Notwithstanding the foregoing provisions of this Section 4 to the contrary:
(i) Indemnitors shall have no obligation to indemnify an Indemnified Party for Losses to the extent such Losses result from any Indemnified Party’s willful misconduct, fraud or gross negligence.
(ii) Indemnitors shall have no liability under this Agreement for any Losses that arise solely from the existence or presence of Hazardous Substances first coming into existence at the Property after the date that any Indemnified Party (or its nominee, designee or agent) acquires title to the Property (whether at a foreclosure sale, by private power of sale or by the acceptance of a deed-in-lieu of foreclosure of the Mortgage (it being agreed and acknowledged that none of the Indemnified Parties has any obligation to accept any such deed-in-lieu of foreclosure) or otherwise) (any such event being a “Mortgage Foreclosure Event”), provided that Indemnitors shall not be released from liability (x) if such Mortgage Foreclosure Event is rescinded or declared void by a court of competent jurisdiction, (y) that arises from and after a Mortgage Foreclosure Event due to acts, omissions or conditions taken by or at the direction of a Indemnitor or any of its Affiliates or (z) for any costs of enforcement as set forth in this Agreement.
(iii) Indemnitors shall have no liability under this Agreement for any Losses that arise solely from the existence or presence of Hazardous Substances first coming into existence at the Property (a) after the date that any Indemnified Party (or its nominee, designee or agent) acquires title to, possession and control of the direct and/or indirect ownership interests in Borrower or Master Tenant after a UCC foreclosure or conveyance in lieu of foreclosure of the Pledge Agreement or the Pledge Agreement (Master Tenant), as applicable (it being agreed and acknowledged that none of the Indemnified Parties has any obligation to accept any such conveyance in lieu of foreclosure) (any such event being a “Pledge Foreclosure Event”), provided that Indemnitors shall not be released from liability (x) if such Pledge Foreclosure Event is rescinded or declared void by a court of competent jurisdiction, (y) that arises from and after a Pledge Foreclosure Event due to acts, omissions or conditions taken by or at the direction of an Indemnitor or any of its Affiliates (in each case, as constituted prior to any such Pledge Foreclosure Event) or (z) for any costs of enforcement as set forth in this Agreement, or (b) during the
6
continuance of the exercise of control rights by an Indemnified Party (or its nominee, designee or agent) pursuant the Pledge Agreement or the Pledge Agreement (Master Tenant).
(iv) Indemnitors shall have no liability under this Agreement for any Losses that arise solely from the existence or presence of Hazardous Substances first coming into existence at the Property after the date that a receiver is appointed by or at the express direction of Agent to take control of the Property (the period during which such receiver is in place, a “Receiver Event”), provided that Indemnitors shall not be released from liability that arises from and after a Receiver Event due to acts, omissions (where there is an affirmative duty to act) or conditions taken by or at the direction of an Indemnitor or any of its Affiliates.
5. Duty to Defend and Attorneys’ and Other Fees and Expenses. Upon written request by any Indemnified Party, Indemnitors shall defend such Indemnified Party(ies) against any claim for which indemnification is required hereunder (if requested by any Indemnified Party, in the name of the Indemnified Party), by attorneys and other professionals reasonably approved by the Indemnified Parties. Notwithstanding the foregoing, to the extent there is a conflict of interest, or potential conflict of interest, or upon the occurrence and during the continuance of an Event of Default, the Indemnified Party(ies) may, in their sole and absolute discretion, engage to represent the entire group of Indemnified Parties a single group of attorneys and other professionals to defend or assist them, and, at the option of the Indemnified Party(ies), their attorneys shall control the resolution of any claim or proceeding, providing that no compromise or settlement shall be entered without Indemnitors’ consent, which consent shall not be unreasonably withheld. Any Indemnified Party shall give Indemnitors prompt written notice of any potential claim for indemnification hereunder. Upon demand, Indemnitors shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties for the payment of the reasonable, out-of-pocket fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith.
6. Definitions. As used in this Agreement, the following terms shall have the following meanings:
The term “Environmental Laws” means any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law, relating to protection of human health or the environment, relating to Hazardous Substances and/or relating to liability for or costs of other actual or threatened danger to human health or the environment and which are applicable to the Property. The term “Environmental Laws” includes, but is not limited to, the following statutes, as amended, any successor thereto, and any regulations promulgated pursuant thereto, and any state or local statutes, ordinances, rules, regulations and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous Substances Transportation Act; the Resource Conservation and Recovery Act (including, but not limited to, Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act (as it relates to exposure to Hazardous Substances); the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the National Environmental Policy Act; the River and Harbors Appropriation Act; and those provisions of the foregoing relating to Lead Based Paint. The term
7
“Environmental Laws” also includes, but is not limited to, any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law, conditioning transfer of property upon a negative declaration or other approval of a Governmental Authority of the environmental condition of the Property; requiring notification or disclosure of Releases of Hazardous Substances or other environmental conditions of the Property to any Governmental Authority or other Person, whether or not in connection with any transfer of title to or interest in such property; imposing conditions or requirements in connection with permits or other authorization for lawful activity related to Hazardous Substances and/or the Remediation of Hazardous Substances; relating to nuisance, trespass or other causes of action related to the Property in connection with Hazardous Substances and/or the Remediation of Hazardous Substances; and relating to wrongful death, personal injury or property or other damage in connection with Hazardous Substances and/or the Remediation of Hazardous Substances.
The term “Hazardous Substances” includes, but is not limited to, any and all substances (whether solid, liquid or gas) defined, listed or otherwise classified as pollutants, hazardous wastes, hazardous substances, hazardous materials, extremely hazardous wastes or words of similar meaning or regulatory effect under any present or future Environmental Laws or that could reasonably be expected to have a material negative impact on human health or the environment, including, but not limited to, petroleum and petroleum products, asbestos and asbestos-containing materials, polychlorinated biphenyls, lead, radon, radioactive materials, flammables and explosives, Lead Based Paint and Toxic Mold. Notwithstanding anything to the contrary contained herein, the term “Hazardous Substances” will not include substances which otherwise would be included in such definition but which are of kinds and in amounts ordinarily and customarily used or stored in properties similar to the Property, including, without limitation substances used for the purposes of cleaning, maintenance, or operations, substances typically used in construction, and typical products used in properties like the Property, and which are otherwise in compliance with all Environmental Laws.
The term “Indemnified Parties” includes Indemnitee, any Person who is or will have been involved in the origination of the Loan, any Person who is or will have been involved with the servicing of the Loan, any Person in whose name the encumbrance created by the Mortgage is or will have been recorded, Persons who may hold or acquire or will have held a full or partial interest in the Loan (including, but not limited to, Investors (as hereinafter defined), as well as custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan for the benefit of third parties), as well as the respective directors, officers, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, affiliates, subsidiaries, participants, successors and assigns of any and all of the foregoing (including, but not limited to, any other Person who holds or acquires or will have held a participation or other full or partial interest in the Loan or the Property, whether during the term of the Loan or as a part of, or following a foreclosure of, the Loan and including, but not limited to, any successors by merger, consolidation or acquisition of all or a substantial portion of Indemnitee’s assets and business).
The term “Investor” means any purchaser, transferee, assignee, servicer, participant or investor of, or in, the Loan or the Securities or any interest(s) therein.
The term “Legal Action” means any claim, suit or proceeding, whether administrative or judicial in nature.
8
The term “Losses” includes any actual, out-of-pocket losses, damages (excluding punitive, special and/or consequential damages, unless arising out of a third party claim asserted against any Indemnified Party), costs, fees, expenses, claims, suits, judgments, awards, liabilities (including, but not limited to, strict liabilities), obligations, debts, fines, penalties, charges, out-of-pocket costs of Remediation (whether or not performed voluntarily), amounts paid in settlement, out-of-pocket litigation costs, out-of-pocket fees of attorneys, engineers and environmental consultants and out-of-pocket investigation costs (including, but not limited to, costs for sampling, testing and analysis of soil, water, air, building materials and other materials and substances, whether solid, liquid or gas), of whatever kind or nature, and whether or not incurred in connection with any judicial or administrative proceedings, actions, claims, suits, judgments or awards.
The term “Release” with respect to any Hazardous Substance includes, but is not limited to, any release, deposit, discharge, emission, leaking, leaching, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Substances.
The term “Remediation” includes, but is not limited to, any response, remedial, removal, or corrective action with respect to any Hazardous Substance or Environmental Law; any activity to clean up, detoxify, decontaminate, contain or otherwise remediate any Hazardous Substance; any actions to prevent, cure or mitigate any Release of any Hazardous Substance (including, with respect to Toxic Mold, providing any moisture control systems at the Property); any action to comply with any Environmental Laws or with any permits issued pursuant thereto relating to the Property; any inspection, investigation, study, monitoring, assessment, audit, sampling and testing or laboratory or other analysis or evaluation relating to any Hazardous Substances or to anything referred to herein.
The term “Toxic Mold” means fungi that reproduces through the release of spores or the splitting of cells or other means that may pose a risk to human health or the environment or negatively affect the value of the Property, including, but not limited to, mold, mildew, fungi, fungal spores, fragments and metabolites such as mycotoxins and microbial volatile organic compounds.
7. Unimpaired Liability. The liability of Indemnitors under this Agreement shall in no way be limited or impaired by, and each Indemnitor hereby consents to and agrees to be bound by, any amendment or modification of the provisions of the Note, the Loan Agreement, the Mortgage or any other Loan Document to or with Indemnitee by Borrower or any Person who succeeds Borrower or any Person as owner of the Property. In addition, subject to Section 9 hereof, the liability of Indemnitors under this Agreement shall in no way be limited or impaired by (i) any extensions of time for performance required by the Note, the Loan Agreement, the Mortgage or any of the other Loan Documents, (ii) any sale or transfer of all or part of the Property, or any sale or other assignment by any Non-Borrower Indemnitor of its direct or indirect ownership interests in Borrower, (iii) except as provided herein, any exculpatory provision in the Note, the Loan Agreement, the Mortgage or any of the other Loan Documents limiting Indemnitee’s recourse to the Property or to any other security for the Note, or limiting Indemnitee’s rights to a deficiency judgment against any Indemnitors, (iv) the accuracy or inaccuracy of the representations and warranties made by Borrower under the Note, the Loan Agreement, the Mortgage or any of the other Loan Documents or herein, (v) the release of any Indemnitors (including, if applicable,
9
Borrower) or any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the other Loan Documents, by operation of law, Indemnitee’s voluntary act, or otherwise, (vi) the release or substitution in whole or in part of any security for the Note, or (vii) Indemnitee’s failure to record the Mortgage or file any UCC financing statements (or Indemnitee’s improper recording or filing of any thereof) or to otherwise perfect, protect, secure or insure any security interest or lien given as security for the Note; and, in any such case, whether with or without notice to any Indemnitors and with or without consideration.
8. Enforcement. The Indemnified Parties may enforce the obligations of Indemnitors without first resorting to or exhausting any security or collateral or without first having recourse to the Note, the Loan Agreement, the Mortgage or any other Loan Documents or any of the Property, through foreclosure proceedings or otherwise, provided, however, that nothing herein shall inhibit or prevent Indemnitee from suing on the Note, foreclosing or exercising any power of sale under the Mortgage or exercising any other rights and remedies thereunder. This Agreement is not collateral or security for the Obligations of Borrower pursuant to the Loan Agreement, unless Indemnitee expressly elects in writing to make this Agreement additional collateral or security for such Obligations of Borrower pursuant to the Loan Agreement, which Indemnitee is entitled to do in its sole and absolute discretion. It is not necessary for an Event of Default to have occurred pursuant to and as defined in the Mortgage or the Loan Agreement for Indemnified Parties to exercise their rights pursuant to this Agreement. Notwithstanding any provision of the Loan Agreement to the contrary, the obligations of each Indemnitor pursuant to this Agreement are exceptions to any non-recourse or exculpation provision of the Loan Agreement; and each Indemnitor expressly acknowledges and agrees that it is fully and personally liable for such obligations, and such liability is not limited to the original or amortized principal balance of the Loan or the value of the Property.
9. Survival.
(a) Except as set forth in Section 9(b) below, the obligations and liabilities of each Indemnitor under this Agreement shall fully survive indefinitely, notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, delivery of a deed in lieu of foreclosure of the Mortgage or conveyance in lieu of foreclosure of the Pledge Agreement or the Pledge Agreement (Master Tenant).
(b) Notwithstanding the foregoing, in the event (i) the Loan is indefeasibly paid in full and (ii) Indemnitors, at their sole cost and expense, deliver to Indemnitee a then-current (after the Loan is repaid) Phase I environmental site assessment of the Property prepared by a qualified environmental consultant acceptable to Indemnitee in its reasonable discretion, which concludes that (a) there is no then-present non-compliance with or violation of applicable Environmental Laws which has not been cured in accordance with applicable Environmental Laws, (b) there is no evidence that the Property contains any Hazardous Substances that have not been fully remediated as required or recommended by applicable Environmental Laws, (c) and the Property is not then subject to any significant risk of contamination from migration of any off-site Releases of Hazardous Substances, Indemnitors shall be released from their liabilities and obligations set forth herein (other than to the extent arising from Hazardous Substances disclosed in the Environmental Report delivered on the Closing Date) with respect to any action first brought after the second
10
(2nd) anniversary of the date on which each of the conditions set forth in clauses (i) and (ii) above are satisfied (except to the extent that any liability was not discovered prior to such second (2nd) anniversary as a result of the intentional concealment, fraud, willful misconduct or bad faith of Indemnitor). Notwithstanding the preceding sentence, to the extent a third party suit, proceeding, or claim has been instituted or commenced prior to the termination date set forth in the foregoing sentence, this Agreement shall remain in full force and effect with respect to any such suit, proceeding or claim (to the extent any Indemnitor has any indemnification obligation with respect thereof pursuant to this Agreement) until the resolution of any such suit, proceeding or claim including, without limitation, the payment by Indemnitors of any amounts which are due and payable by Indemnitors under this Agreement in connection with such suit, proceeding or claim.
10. Interest. Any amounts payable to any Indemnified Parties under this Agreement shall become due and payable five (5) Business Days after written demand by Indemnitee and, if not paid within five (5) Business Days of such written demand therefor, shall bear interest at the Default Rate commencing on the date demanded by Indemnitee until repaid.
11. Waivers.
(a) Each Indemnitor hereby waives and relinquishes (i) any right or claim of right to cause a marshaling of any Indemnitor’s assets or to cause Indemnitee or any other Indemnified Party to proceed against any of the security for the Loan before proceeding under this Agreement against any Indemnitor; (ii) all rights and remedies accorded by applicable law to indemnitors or guarantors generally, including any rights of subrogation which any Indemnitor may have, provided that the indemnity provided for hereunder shall neither be contingent upon the existence of any such rights of subrogation nor subject to any claims or defenses whatsoever which may be asserted in connection with the enforcement or attempted enforcement of such subrogation rights, including, without limitation, any claim that such subrogation rights were abrogated by any acts of Indemnitee or any other Indemnified Party; (iii) the right to assert a counterclaim, other than a mandatory or compulsory counterclaim, in any action or proceeding brought against or by Indemnitee or any other Indemnified Party; (iv) notice of acceptance hereof and of any action taken or omitted in reliance hereon; (v) presentment for payment, demand of payment, protest or notice of nonpayment or failure to perform or observe, or other proof, or, except as expressly required to be given under this Agreement or in any Loan Document, notice or demand; and (vi) all homestead exemption rights against the obligations hereunder and the benefits of any statutes of limitations or repose. Notwithstanding anything to the contrary contained herein, each Indemnitor hereby agrees to postpone the exercise of any rights of subrogation with respect to any collateral securing the Obligations until the Total Debt shall have been paid in full.
(b) INDEMNITOR AND, BY ITS ACCEPTANCE HEREOF, INDEMNITEE, EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND FOREVER WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST, WITH REGARD TO THIS AGREEMENT, THE NOTE, THE MORTGAGE OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY EACH INDEMNITOR AND IS INTENDED TO ENCOMPASS
11
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. THE INDEMNIFIED PARTIES ARE HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY EACH INDEMNITOR.
12. Subrogation. Each Indemnitor hereby agrees that it shall take any and all reasonable actions, including the institution of legal action against third parties, necessary or appropriate to obtain reimbursement, payment or compensation from such Persons responsible for the presence of any Hazardous Substances at, in, on, under or near the Property or otherwise obligated by law to bear the cost thereof. The Indemnified Parties shall be and hereby are subrogated to all of each Indemnitor’s rights now or hereafter in such claims.
13. Indemnitors’ Representations and Warranties. Each Indemnitor represents and warrants that:
(a) it has the full power and authority to execute and deliver this Agreement and to perform its obligations hereunder; the execution, delivery and performance of this Agreement by such Indemnitor has been duly and validly authorized; and all requisite action has been taken by such Indemnitor to make this Agreement valid and binding upon such Indemnitor, enforceable in accordance with its terms;
(b) its execution of, and compliance with, this Agreement is in the ordinary course of business of such Indemnitor and will not result in the breach of any term or provision of the charter, by-laws, partnership, operating or trust agreement or other governing instrument of such Indemnitor or result in the breach of any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any agreement, indenture or loan or credit agreement or other instrument to which such Indemnitor or the Property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which such Indemnitor or the Property is subject;
(c) to the best of such Indemnitor’s knowledge, there is no action, suit, proceeding or investigation pending or threatened against it which, either in any one instance or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of such Indemnitor, or in any material impairment of the right or ability of such Indemnitor to carry on its business substantially as now conducted, or in any material liability on the part of such Indemnitor, or which would draw into question the validity of this Agreement or of any action taken or to be taken in connection with the obligations of such Indemnitor contemplated herein, or which would be likely to impair materially the ability of such Indemnitor to perform under the terms of this Agreement;
(d) it does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(e) to the best of such Indemnitor’s knowledge, no approval, authorization, order, license or consent of, or registration or filing with, any Governmental Authority or other
12
Person, and no approval, authorization or consent of any other Person, is required in connection with this Agreement; and
(f) this Agreement constitutes a valid, legal and binding obligation of such Indemnitor, enforceable against it in accordance with the terms hereof.
14. No Waiver. No delay by any Indemnified Party in exercising any right, power or privilege under this Agreement shall operate as a waiver of any such privilege, power or right.
15. Notice of Legal Actions. Each party hereto shall, within five (5) Business Days of receipt thereof, give written notice to the other parties hereto of (i) any notice, advice or other communication from any Governmental Authority or any source whatsoever with respect to Hazardous Substances on, from or affecting the Property, and (ii) any legal action brought against such party or related to the Property, with respect to which Indemnitors may have liability under this Agreement. Such notice shall comply with the provisions of Paragraph 17 hereof.
16. Intentionally Omitted.
17. Notices. All notices, demands, requests, consents, approvals or other communications (any of the foregoing, a “Notice”) required, permitted or desired to be given hereunder shall be in writing and shall be sent by telefax (with answer back acknowledged) or delivered by hand or by reputable overnight courier, addressed to the party to be so notified at its address hereinafter set forth, or to such other address as such party may hereafter specify in accordance with the provisions of this Paragraph 17. Any Notice shall be deemed to have been received: (a) on the date of sending by telefax if sent during business hours on a Business Day (otherwise on the next Business Day), (b) on the date of delivery by hand if delivered during business hours on a Business Day (otherwise on the next Business Day), and (c) on the next Business Day if sent by an overnight commercial courier, in each case addressed to the parties as follows:
If to Agent: DL RCF I Loan Holdings, LLC
c/o Derby Lane Partners LLC
12 E. 49th Steet, Suite 1519
New York, New York 10017
Attention: Urian Yap
Email: [email protected]
with a copy to: Gibson Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention: Matthew Kidd, Esq.
Facsimile No. (212) 351-2342
Email: [email protected]
13
If to Borrower: 65 E. Wacker Holdings II, LLC
2211 N. Elston Ave., Suite 306
Chicago, Illinois 60614
Attention: Adam Friedberg
Email: [email protected]
with a copy to: Patzik, Frank & Samotny Ltd.
200 South Wacker Drive – Suite 2700
Chicago, Illinois 60606
Attention: John Morse
Facsimile No.: (312) 551-1101
Email: [email protected]
If to Non-Borrower
Indemnitors: Adam Friedberg
3834 N. Lakewood Avenue
Chicago, Illinois 60613
Email: [email protected]
Anthony Hrusovsky
531 E Scranton Avenue
Lake Bluff, Illinois 60044
Email: [email protected]
Peter Koch
1509 Kaywood Lane
Glenview, Illinois 60025
Email: [email protected]
ACRES Commercial Realty Corp.
390 RXR Plaza
Uniondale, New York 11556
Attn: Jaclyn Jesberger
Email: [email protected]
with a copy to: Patzik, Frank & Samotny Ltd.
200 South Wacker Drive – Suite 2700
Chicago, Illinois 60606
Attention: John W. Morse
Facsimile No. (312) 551-1101
Email: [email protected]
Murland Dainoff LLC
555 E. Lancaster Avenue, Suite 501
Radnor, Pennsylvania 19087
Attn: Harris A. Dainoff, Esquire
Email: [email protected]
14
Any party may change the address to which any such Notice is to be delivered by furnishing ten (10) days’ written notice of such change to the other parties in accordance with the provisions of this Paragraph 17. Notices shall be deemed to have been given on the date set forth above, even if there is an inability to actually deliver any Notice because of a changed address of which no Notice was given or there is a rejection or refusal to accept any Notice offered for delivery. Notice for any party may be given by its respective counsel. Additionally, Notice from Indemnitee may also be given by Servicer.
18. Duplicate Originals; Counterparts. This Agreement may be executed in any number of duplicate originals and each duplicate original shall be deemed to be an original. This Agreement may be executed in several counterparts, each of which counterparts shall be deemed an original instrument and all of which together shall constitute a single Agreement. The failure of any party hereto to execute this Agreement, or any counterpart hereof, shall not relieve the other signatories from their obligations hereunder.
19. No Oral Change. This Agreement, and any provisions hereof, may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of any Indemnitor or any Indemnified Party, but only by an agreement in writing signed by the party or parties against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.
20. Headings, Etc. The headings and captions of various paragraphs of this Agreement are for convenience of reference only and are not to be construed as defining or limiting, in any way, the scope or intent of the provisions hereof.
21. Number and Gender/Successors and Assigns. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the Person or Persons referred to may require. Without limiting the effect of specific references in any provision of this Agreement, the term “Indemnitor” shall be deemed to refer to each and every Person constituting an Indemnitor from time to time, as the sense of a particular provision may require, and to include the heirs, executors, administrators, legal representatives, successors and permitted assigns of each Indemnitor, all of whom shall be bound by the provisions of this Agreement. Each reference herein to Indemnitee shall be deemed to include its successors and assigns; provided that no obligation of any Indemnitor may be assigned except in accordance with the Loan Agreement. This Agreement shall inure to the benefit of the Indemnified Parties and their respective successors, permitted assigns, heirs and legal representatives forever. The Indemnified Parties shall have the right to assign or transfer their rights under this Agreement in connection with any assignment of the Loan and the Loan Documents. Any assignee or transferee of Indemnitee (and the other Indemnified Parties) shall be entitled to all the benefits afforded to Indemnitee (and the other Indemnified Parties) under this Agreement. No Indemnitor shall have the right to assign or transfer its rights or obligations under this Agreement without the prior written consent of Indemnitee, as provided in the Loan Agreement, and any attempted assignment without such consent shall be null and void.
15
22. Release of Liability. Any one or more parties liable upon or in respect of this Agreement may be released without affecting the liability of any party not so released.
23. Rights Cumulative. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies which Indemnitee has under the Note, the Mortgage, the Pledge Agreement, the Pledge Agreement (Master Tenant), the Loan Agreement or the other Loan Documents or would otherwise have at law or in equity.
24. Inapplicable Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement, unless such continued effectiveness of this Agreement, as modified, would be contrary to the basic understandings and intentions of the parties as expressed herein.
25. Governing Law; Jurisdiction; Service of Process.
(a) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY EACH INDEMNITOR AND ACCEPTED BY INDEMNITEE IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THE NOTE WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION RELATED HERETO, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH INDEMNITOR HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT AND/OR THE OTHER LOAN DOCUMENTS, AND THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST INDEMNITEE OR ANY INDEMNITOR ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY, AT INDEMNITEE’S OPTION, BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND EACH INDEMNITOR WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM
16
NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH INDEMNITOR HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. EACH INDEMNITOR DOES HEREBY DESIGNATE AND APPOINT:
Corporation Service Company
19 West 44th Street, Suite 200
New York, NY 10036
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND EACH INDEMNITOR AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO SUCH INDEMNITOR IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON SUCH INDEMNITOR IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. EACH INDEMNITOR (I) SHALL GIVE PROMPT NOTICE TO INDEMNITEE OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS AND WHICH SUBSTITUTE AGENT SHALL AT ALL TIMES BE THE SAME AGENT AS AUTHORIZED BY BORROWER UNDER THE LOAN AGREEMENT), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF THE INDEMNIFIED PARTIES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST INDEMNITORS IN ANY OTHER JURISDICTION.
26. Miscellaneous.
(a) Wherever pursuant to this Agreement (i) Indemnitee (or any other Indemnified Party) exercises any right given to it to approve or disapprove any matter, (ii) any arrangement or term is to be satisfactory to Indemnitee (or any other Indemnified Party), or (iii) any other decision or determination is to be made by Indemnitee (or any other Indemnified Party), the decision of Indemnitee (or such other Indemnified Party) to approve or disapprove such matter, all decisions that arrangements or terms are satisfactory or not satisfactory to Indemnitee (or such other Indemnified Party) and all other decisions and determinations made by Indemnitee (or such other Indemnified Party), shall be in the sole and absolute discretion of Indemnitee (or such other Indemnified Party) and shall be final and conclusive, except as may be otherwise expressly and specifically provided herein.
17
(b) Wherever pursuant to this Agreement it is provided that any Indemnitor pay any costs and expenses, such costs and expenses shall include, but not be limited to, out-of-pocket legal fees and disbursements of Indemnitee and the other Indemnified Parties, incurred by retained outside law firms, but shall exclude the expenses of in-house legal staff.
27. Joint and Several Liability. The obligations and liabilities of Indemnitors hereunder are joint and several.
28. Recitals. The recitals hereof are a part hereof, form a basis for this Agreement and shall be considered prima facie evidence of the facts and documents referred to therein.
29. Parties Bound; Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, permitted assigns, heirs and legal representatives. Indemnitee shall have the right to assign or transfer its rights under this Agreement in connection with any assignment of the Loan and the Loan Documents. Any assignee or transferee of Indemnitee shall be entitled to all the benefits afforded to Indemnitee under this Agreement. Indemnitors shall not have the right to assign or transfer its rights or obligations under this Agreement without the prior written consent of Indemnitee, and any attempted assignment without such consent shall be null and void.
30. Headings. Section headings are for convenience of reference only and shall in no way affect the interpretation of this Agreement.
31. Exculpation. Section 9.4 of the Loan Agreement is hereby incorporated by reference as if set forth at length herein.
32. Incorporation by Reference. To the extent that any provisions or defined terms contained in any other Loan Document (including, without limitation, the Loan Agreement) are used herein or incorporated herein by reference, and such other Loan Document is terminated or otherwise satisfied prior to the termination of this Agreement, then, for the avoidance of doubt, such provisions and/or defined terms shall survive until the satisfaction of the Obligations without regard to the fact that the Loan Document originally containing the same has been otherwise terminated or satisfied.
[NO FURTHER TEXT ON THIS PAGE]
18
IN WITNESS WHEREOF, this Agreement has been executed by Indemnitors and is effective as of the day and year first above written.
INDEMNITORS:
65 E. WACKER HOLDINGS II, LLC,
a Delaware limited liability company
By: |
/s/ Anthony Hrusovsky |
|
Name: Anthony Hrusovsky Title: Authorized Signatory |
/s/ Anthony Hrusovsky |
Anthony HrusovSKy, an individual |
/s/ Adam Friedberg |
Adam Friedberg, an individual |
/s/ Peter Koch |
Peter koch, an individual |
ACRES COMMERCIAL REALTY CORP.,
a Maryland corporation
By: |
/s/ Mark S. Fogel |
|
Name: Mark S. Fogel Title: President |
[Signature Page to Environmental Indemnity Agreement]
SCHEDULE I
LIST OF ENVIRONMENTAL REPORTS
[Schedule I]
Exhibit 10.6
REPAYMENT AND COMPLETION GUARANTY
THIS REPAYMENT AND COMPLETION GUARANTY (“Guaranty”), dated as of September 12, 2025, is made and given by acres COMMERCIAL realty corp., a Maryland corporation, whose mailing address is 390 RXR Plaza, Uniondale, New York 11556 (“Guarantor”), in favor of HOYNE SAVINGS BANK, an Illinois state-chartered banking corporation, having its principal office at 810 S. Oak Park Avenue, Oak Park, Illinois 60304 (“Lender”).
RECITALS
NOW, THEREFORE, in consideration of the recitals, the truth and correctness of which are hereby confirmed by Guarantor, of the making of the Loan, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor hereby covenants and agrees with Lender as follows:
2
3
4
5
6
28210.1
40330893v4
[REMAINDER OF PAGE IS INTENTIONALLY LEFT BLANK]
7
Exhibit 10.6
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date first above written.
acres COMMERCIAL realty corp., a Maryland corporation
By: |
/s/ Mark S. Fogel |
|
Mark S. Fogel President |
STATE OF _New York___ )
COUNTY OF Nassau )
The instrument was acknowledged before this _10_ day of _September______, 2025, by Mark S. Fogel, the President of Acres Commercial Realty Corp., a Maryland corporation, on behalf of said corporation.
/s/ James T. Reiser
Notary Public
Signature Page to Repayment and Completion Guaranty