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AMENDED AND RESTATED GUARANTY

Guarantee Agreement

AMENDED AND RESTATED GUARANTY | Document Parties: PRIME GROUP REALTY TRUST | CITICORP USA, INC | PGRT ESH, Inc You are currently viewing:
This Guarantee Agreement involves

PRIME GROUP REALTY TRUST | CITICORP USA, INC | PGRT ESH, Inc

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Title: AMENDED AND RESTATED GUARANTY
Governing Law: New York     Date: 3/27/2009
Industry: Real Estate Operations     Sector: Services

AMENDED AND RESTATED GUARANTY, Parties: prime group realty trust , citicorp usa  inc , pgrt esh  inc
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EXHIBIT 10.3

AMENDED AND RESTATED GUARANTY

 

 

 

CITICORP USA, INC.

 

 

NEW YORK

 

June 6, 2008

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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