EXHIBIT
10.67
AMENDED AND RESTATED
GUARANTY
This AMENDED AND RESTATED GUARANTY
(“ Guaranty ”) is executed as of
December 29, 2006, by PRIME GROUP REALTY, L.P. , a
Delaware limited partnership (whether one or more collectively
referred to as “ Guarantor ”), for the
benefit of WELLS FARGO BANK, N.A. , as trustee for the
registered holders of COBALT CMBS COMMERCIAL MORTGAGE TRUST
2006-C1 , COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-C1 (“ Lender
”).
W I T N E S S E T H
:
WHEREAS, pursuant to that certain
Amended and Restated Promissory Note, dated of even date herewith,
executed by CONTINENTAL TOWERS ASSOCIATES III, LLC , a
Delaware limited liability company (“ Borrower
”), and payable to the order of Lender in the original
principal amount of $41,400,000.00 (together with all renewals,
modifications, increases and extensions thereof, the “
Note ”), Borrower has become indebted, and may
from time to time be further indebted, to Lender with respect to a
loan (“ Loan ”) which is secured by the
lien and security interest of an Amended and Restated Mortgage,
Security Agreement and Fixture Financing Statement, of even date
herewith (the “ Mortgage ”), and further
evidenced, secured or governed by other instruments and documents
executed in connection with the Loan, including an Amended and
Restated Environmental and Hazardous Substance Indemnification
Agreement (the “ Environmental and Hazardous Substance
Indemnification Agreement ”) (the Note, Mortgage, the
Environmental and Hazardous Substance Indemnification Agreement,
and all other such documents and instruments executed in connection
with the Loan may be referred to as the “ Loan
Documents ”); and
WHEREAS, Lender is not willing to
make the Loan, or otherwise extend credit, to Borrower unless
Guarantor unconditionally guarantees payment and performance to
Lender of the Guaranteed Obligations (as herein
defined);
WHEREAS, PGRT Equity, L.L.C., a
wholly owned subsidiary of Guarantor, and Lender are parties to
that certain Amended and Restated Subordination and Standstill
Agreement dated as of the date hereof; and
WHEREAS, Guarantor as the parent of
Second Lender will directly benefit from Lender’s making the
Loan to Borrower.
NOW, THEREFORE, as an inducement to
Lender to make the Loan to Borrower, and to extend such additional
credit as 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:
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(PRIME GROUP REALTY, L.P.)
43412-20/Continental Towers
•
NATURE AND SCOPE OF
GUARANTY
•
Guaranty of Obligation . Guarantor hereby irrevocably
and unconditionally guarantees to Lender and its successors and
assigns the payment and performance of the Guaranteed Obligations
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.
•
Definition of Guaranteed Obligations . As used
herein, the term “ Guaranteed Obligations
” means the obligations or liabilities of Borrower to Lender
for any loss, damage, cost, expense, liability, claim or other
obligation incurred by Lender (including attorneys’ fees and
costs reasonably incurred) arising out of or in connection with the
following:
(a) all
amounts for which Borrower is liable under Sections 2.04(b)
and (c) of the Note; and
(b) the
payment and performance of all of the obligations of Borrower under
the Environmental and Hazardous Substance Indemnification
Agreement.
Notwithstanding anything to the
contrary in any of the Loan Documents, Lender shall not be deemed
to have waived any right which Lender may have under
Section 506(a), 506(b), 1111(b) or any other provisions of the
U.S. Bankruptcy Code to file a claim for the full amount of the
Debt secured by the Mortgage or to require that all collateral
shall continue to secure all of the Debt owing to Lender in
accordance with the Loan Documents.
•
Nature of Guaranty . This Guaranty is an irrevocable,
absolute, continuing guaranty of payment and performance and not a
guaranty of collection. 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
shall not release or discharge the obligation of Guarantor to
Lender with respect to the Guaranteed Obligations. This Guaranty
may be enforced by Lender and any subsequent holder of the Note and
shall not be discharged by the assignment or negotiation of all or
part of the Note.
•
Guaranteed Obligations Not Reduced by Offset . The
Guaranteed Obligations and the liabilities and obligations of
Guarantor to 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, against 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.
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(PRIME GROUP REALTY, L.P.)
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•
Payment By Guarantor . If all or any part of the
Guaranteed Obligations shall not be punctually paid when due,
whether at demand, maturity, acceleration or otherwise, Guarantor
shall, immediately upon demand by Lender, and without presentment,
protest, notice of protest, notice of non-payment, notice of
intention to accelerate the maturity, notice of acceleration of the
maturity, or any other notice whatsoever, pay in lawful money of
the United States of America, the amount due on the Guaranteed
Obligations to Lender at Lender’s address as set forth
herein. Such demand(s) 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.
•
No Duty To Pursue Others . It shall not be necessary
for Lender (and Guarantor hereby waives any rights which Guarantor
may have to require 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
Lender’s rights against any collateral which shall ever have
been given to secure the Loan, (iii) enforce 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 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. Lender shall not be required to mitigate
damages or take any other action to reduce, collect or enforce the
Guaranteed Obligations.
•
Waivers . Guarantor agrees to the provisions of the
Loan Documents, and hereby waives notice of (i) any loans or
advances made by Lender to Borrower, (ii) acceptance of this
Guaranty, (iii) any amendment or extension of the Note, the
Mortgage or of any other Loan Documents, (iv) the execution
and delivery by Borrower and Lender of any other loan or credit
agreement or of Borrower’s execution and delivery of any
promissory notes or other documents arising under the Loan
Documents or in connection with the Trust Property (as defined in
the Mortgage), (v) the occurrence of any breach by Borrower or
an Event of Default, (vi) Lender’s transfer or
disposition of the Guaranteed Obligations, or any part thereof,
(vii) sale or foreclosure (or posting or advertising for 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
Lender, and, generally, all demands and notices of every kind in
connection with this Guaranty, the Loan Documents, any documents or
agreements evidencing, securing or relating to any of the
Guaranteed Obligations and the obligations hereby
guaranteed.
•
Payment of Expenses . In the event that Guarantor
should breach or fail to timely perform any provisions of this
Guaranty, Guarantor shall, immediately upon demand by Lender, pay
Lender all reasonable, out-of-pocket costs and expenses (including
court costs and reasonable attorneys’ fees) incurred by
Lender in the enforcement hereof or the preservation of
Lender’s rights hereunder. The covenant contained in this
Section shall survive the payment and performance of the Guaranteed
Obligations.
•
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
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(PRIME GROUP REALTY, L.P.)
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thereunder, Lender must rescind or
restore any payment, or any part thereof, received by 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 Lender shall be without effect, and this
Guaranty shall remain in full force and effect. 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.
•
Waiver of Subrogation, Reimbursement and Contribution
. Notwithstanding anything to the contrary contained in this
Guaranty, Guarantor hereby unconditionally and irrevocably waives,
releases and abrogates until the end of the Waiver Period (as
hereunder defined), 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 Lender),
to assert any claim against or seek contribution, indemnification
or any other form of reimbursement from Borrower or any other party
liable for payment of any or all of the Guaranteed Obligations for
any payment made by Guarantor under or in connection with this
Guaranty or otherwise. As used herein, “ Waiver
Period ” shall mean ninety-one (91) days from the
payment in full of the indebtedness secured by the Mortgage and
Borrower’s failure within such ninety-one (91) day period to
be subject to a bankruptcy action or otherwise in violation of
Section 55 of the Mortgage.
•
Borrower . The term “ Borrower
” as used herein shall include any new or successor
corporation, association, partnership (general or limited), joint
venture, trust or other individual or organization formed as a
result of any merger, reorganization, sale, transfer, devise, gift
or bequest of Borrower or any interest in Borrower.
•
Indemnity . Guarantor shall indemnify, defend and
hold harmless Lender and its successors and assigns from and
against the following (which may be referred to herein as “
Indemnified Matters ”): any and all
liabilities, obligations, claims, demands, damages, judgments,
costs and expenses (including, without limitation, reasonable
attorneys’ fees and disbursements), imposed upon or incurred
by or asserted against Lender and/or its successors and assigns by
reason of a default by Guarantor in the performance of any of the
Guaranteed Obligations. The foregoing indemnity shall specifically
not include any such costs to the extent incurred as the direct
result of Lender’s gross negligence or willful
misconduct.
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•
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Indemnification
Procedures .
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(a) If
any action shall be brought against Lender based upon any of the
matters for which Lender is indemnified hereunder, Lender shall
notify Guarantor in writing thereof and Guarantor shall promptly
assume the defense thereof, including, without limitation, the
employment of counsel acceptable to Lender; provided, however, that
any failure of Lender to notify Guarantor of such matter shall not
impair or reduce the obligations of Guarantor hereunder. Lender
shall have the right, at the expense of Guarantor (which expense
shall be included in the Indemnified Matters), to employ separate
counsel in any such action and to participate in the defense
thereof. In the event Guarantor shall fail to discharge or
undertake to defend Lender against any claim, loss or liability for
which Lender is indemnified hereunder, Lender may, at its sole
option and
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(PRIME GROUP REALTY, L.P.)
43412-20/Continental Towers
election, defend or settle such
claim, loss or liability. The liability of Guarantor to Lender
hereunder shall be conclusively established by such settlement,
provided such settlement is made in good faith, the amount of such
liability to include both the settlement consideration and the
actual, out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys’ fees and disbursements,
incurred by Lender in effecting such settlement. In such event,
such settlement consideration, actual, out-of-pocket costs and
expenses shall be included in the Indemnified Matters and Guarantor
shall pay the same as hereinafter provided. Lender’s good
faith in any such settlement shall be conclusively established if
the settlement is made on the advice of independent legal counsel
for Lender.
(b) Guarantor
shall not, without the prior written consent of Lender:
(i) settle or compromise any action, suit, proceeding or claim
or consent to the entry of any judgment that does not include as an
unconditional term thereof the delivery by the claimant or
plaintiff to Lender of a full and complete written release of
Lender (in form, scope and substance satisfactory to Lender in its
sole discretion) from all liability in respect of such action,
suit, proceeding or claim and a dismissal with prejudice of such
action, suit, proceeding or claim; or (ii) settle or
compromise any action, suit, proceeding or claim in any manner that
may adversely affect Lender or obligate Lender to pay any sum or
perform any obligation as determined by Lender in its sole
discretion.
(c) All
amounts owed by Guarantor to Lender that are Indemnified Matters
shall be immediately reimbursable to Lender when and as such
payment obligations are incurred by Lender and, in the event of any
litigation, claim or other proceeding, without any requirement of
waiting for the ultimate outcome of such litigation, claim or other
proceeding, and Guarantor shall pay to Lender any and all amounts
owed by Guarantor to Lender that are Indemnified Matters within
ten (10) business days after written notice from Lender
itemizing the amounts thereof incurred to the date of such notice.
In addition to any other remedy available for the failure of
Guarantor to periodically pay such amounts owed by Guarantor to
Lender that are Indemnified Matters, such amounts, if not paid
within said ten-day period, shall bear interest at the Default
Interest Rate (as defined in the Note).
•
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:
•
Modifications . Any renewal, extension, increase,
modification, alteration or rearrangement of all or any part of the
Guaranteed Obligations, the Note, the Mortgage, the
other
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(PRIME GROUP REALTY, L.P.)
43412-20/Continental Towers
Loan Documents, or any other
document, instrument, contract or understanding between Borrower
and Lender, or any other parties, pertaining to the Guaranteed
Obligations or any failure of Lender to notify Guarantor of any
such action.
•
Adjustment . Any adjustment, indulgence, forbearance
or compromise that might be granted or given by Lender to Borrower
or any Guarantor.
•
Condition of Borrower or Guarantor . The insolvency,
bankruptcy, arrangement, adjustment, composition, liquidation,
disability, dissolution or lack of power of Borrower, Guarantor or
any other party 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
shareholders, partners or members of Borrower or Guarantor; or any
reorganization of Borrower or Guarantor. A
•
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 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) the Borrower has valid defenses, claims or offsets
(whether at law, in equity or by agreement) unrelated to the
willful misconduct or gross negligence of Lender or anyone acting
by, through or under Lender which render the Guaranteed Obligations
wholly or partially uncollectible from Borrower, (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 or any of the other Loan Documents have been forged or
otherwise are irregular or not genuine or authentic through no
willful misconduct or gross negligence of Lender or anyone acting
by, through or under Lender, 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.
•
Release of Obligors . Any full or partial release of
the liability of Borrower on the Guaranteed Obligations, or any
part thereof, or of any co-guarantors, or any other person or
entity now or hereafter liable, whether directly or indirectly,
jointly, severally, or jointly and severally, to pay, perform,
gua
