AMENDED AND
RESTATED GUARANTY
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CITICORP USA,
INC.
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NEW
YORK
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June 6, 2008
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David
Lichtenstein, an individual (the “ Undersigned
”), entered into a Guaranty dated June 29, 2007 (the
“ Original Guaranty ”) in favor of Citicorp USA,
Inc. (“ Citicorp ” or “ you
”) in connection with the Loan Agreement dated June 29,
2007 (the “ 2007 Loan Agreement ”) between PGRT
ESH, Inc., a Delaware corporation (the “ Borrower
”), and Citicorp. The Borrower and Citicorp have amended and
restated in its entirety the 2007 Loan Agreement pursuant to an
Amended and Restated Loan Agreement of even date herewith (as so
amended and restated and as further amended, restated, replaced,
supplemented or otherwise modified from time to time, the “
Loan Agreement ”), and it is a condition precedent to
the effectiveness of the Loan Agreement that the Undersigned shall
have amended the Original Guaranty. In furtherance thereof, the
Undersigned is entering into this Amended and Restated Guaranty (as
so amended and restated and as further amended, restated, replaced,
supplemented or otherwise modified from time to time, this “
Guaranty ”).
I. For
and in consideration of the obligations to Citicorp of the Borrower
under (i) the Amended and Restated Promissory Note of even
date herewith in the principal amount of $110,000,000 (as so
amended and restated and as further amended, restated, replaced,
supplemented or otherwise modified from time to time, the “
Note ”) by the Borrower in favor of Citicorp, and
(ii) the Loan Agreement, the Undersigned does hereby
unconditionally and irrevocably GUARANTEE the punctual payment to
you of the Obligations (as defined in the Loan Agreement), as and
when payable, together with interest thereon, fees related thereto
and any and all costs and expenses which may be incurred by you in
collecting all or any of the Obligations or in enforcing any rights
hereunder.
II. As
implementing the foregoing, it is understood and agreed that the
Undersigned unconditionally and irrevocably guarantees that the
Obligations will be paid to you strictly in accordance with the
terms and provisions of the Note, the Loan Agreement, the other
Loan Documents or any other agreement, express or implied, which
has been or may hereafter be made or entered into by the Borrower
in reference thereto, regardless of any law, regulation or decree,
now or hereafter in effect, which might in any manner affect any of
the terms or provisions of the Note, the Loan Agreement, the other
Loan Documents, or any such other agreement or your rights with
respect thereto as against the Borrower, or cause or permit to be
invoked any alteration in the time, amount or manner of payment by
the Borrower of any of the Obligations.
III. To
induce you to make the Loan (as defined in the Loan Agreement)
under the Note and the Loan Agreement, the Undersigned represents
and warrants as follows as of the date hereof: (a) no
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance of this
Guaranty by the Undersigned, and the execution, delivery and
performance of this Guaranty by the Undersigned do not and will not
violate or otherwise contravene law or any material agreement by
which the Undersigned or his property is bound; (b) this
Guaranty is the legal, valid and binding obligation of the
Undersigned, enforceable against the Undersigned in accordance with
its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency and similar laws affecting rights
of creditors generally and general principles of equity;
(c) the balance sheet and other financial statements of the
Undersigned most recently furnished to you by or on behalf of the
Undersigned are true, correct and complete, and fairly present the
financial condition of the Undersigned as of the date thereof for
the period ended on such date, all in accordance with generally
accepted accounting principles consistently applied, and since such
date, there has been no material adverse change in such financial
condition of the Undersigned or in the ability of the Undersigned
to perform the Undersigned’s obligations
hereunder;
(d) all
tax returns with respect to the Undersigned and the
Undersigned’s property which are required to be filed have
been duly filed, all taxes and assessments shown thereon to be due
and payable by the Undersigned have been paid, and no taxing
authority has asserted any claim for unpaid taxes or assessments
against the Undersigned; (e) there is no action or proceeding
affecting the Undersigned pending before any court, governmental
agency or arbitrator or, to the knowledge of the Undersigned,
threatened, and there is no other action or proceeding affecting
the Undersigned pending before any court, governmental agency or
arbitrator or, to the knowledge of the Undersigned, threatened,
which may materially adversely affect the financial condition,
affairs or prospects of the Undersigned, or which purports to
affect the legality, validity or enforceability of this Guaranty or
any document executed or delivered in connection herewith by the
Undersigned (including, without limitation, any other Loan
Document); (f) no Event of Default (as defined in the Loan
Agreement) has occurred and is continuing nor has any event
occurred which, with the giving of notice or the passage of time,
or both, would constitute an Event of Default; (g) neither the
Undersigned nor any of his affiliates (as defined below) has
incurred any Contingent Liability (as defined in the Loan
Agreement) since June 11, 2007, other than guaranties or other
such obligations disclosed in their financial statements dated as
of and for the period ended December 31, 2007 and previously
delivered to you; and (h) except as specified in
Schedule 4.1.28 to the Loan Agreement, neither the Undersigned
nor any of his affiliates is in default under any loan agreement,
mortgage or other instrument or agreement relating, directly or
indirectly, to any of the Collateral Entity Properties (as defined
in the Loan Agreement).
IV. So
long as any of the Obligations shall remain unpaid, the Undersigned
will, unless you shall otherwise consent in writing:
(a) comply in all material respects with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon the Undersigned
or the Undersigned’s property, except to the extent contested
in good faith and by appropriate proceedings; (b) upon
reasonable notice to the Undersigned and at reasonable times prior
to an Event of Default and at any time thereafter, provide you
access to the books and financial records of the Undersigned from
time to time to inspect and make copies (at the Undersigned’s
expense) of such books and records and provide you with copies
(photostatic or electronic, as the case may be) of all financial
statements, reports, books, records and accounts furnished to the
Undersigned in respect of the Collateral Entity Properties not
later than three (3) Business Days (as defined in the Loan
Agreement) after receipt thereof by the Undersigned; (c)
(i) maintain at all times for the Undersigned and Lightstone
Holdings LLC, a Delaware limited liability company (“
Lightstone ”), on a combined basis, but without
duplication, Unencumbered Liquid Assets (as defined below) in an
amount not less than (A) $40,000,000 commencing on the date hereof
and at all times thereafter until September 30, 2008 and (B)
$50,000,000 commencing September 30, 2008 and at all times
thereafter and (ii) maintain at all times commencing
September 30, 2008 for the Undersigned and Lightstone on a
combined basis, but without duplication, at least $10,000,000 of
Unencumbered Liquid Assets with you, Citibank, N.A. or another
affiliate thereof in one or more accounts owned solely by the
Undersigned and/or Lightstone; (d) maintain at all times for
the Undersigned and Lightstone, on a combined basis, but without
duplication, a net worth, consisting of total assets less total
liabilities of the Undersigned and Lightstone, determined in
accordance with generally accepted accounting principles
consistently applied (“ Net Worth ”), of not
less than $900,000,000; (e) furnish to you as soon as
available and in any event by April 10, 2009, the balance
sheet (showing, among other things, the Undersigned’s and
Lightstone’s Net Worth and Unencumbered Liquid Assets, each
on a combined basis, but without duplication) and statement of
income and other regularly prepared financial statements of the
Undersigned and each other Loan Party (as defined in the Loan
Agreement) for calendar year 2008, certified as true and complete
by the Undersigned; (f) promptly (and in any event within
thirty (30) days) after the filing thereof, furnish, or cause
to be furnished, to you all annual Federal income tax returns of
the Undersigned and each other Loan Party, including all schedules
thereto; (g) furnish, or cause to be furnished, to you on or
before December 31, 2008, a projection of income, expenses and
cash flow, in form and substance satisfactory to you, in respect of
the Collateral Entity Properties and the Collateral (as defined in
the Loan Agreement) for calendar year 2009; (h) furnish, or
cause to be furnished, to you, no later than forty-five
(45) days after the end of each calendar quarter, operating
statements and rent rolls with respect to the Collateral Entity
Properties and on a combined basis with respect to the Collateral,
together with evidence, in form and substance satisfactory to you,
of the C
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