Exhibit 10.134
NM Loan No. 338136
NY Life Loan No. 374-0185
GUARANTEE OF RECOURSE OBLIGATIONS
(Single Guarantor)
In consideration of the benefits which the
undersigned (herein called “Guarantor”) will receive as
a result of The Northwestern Mutual Life Insurance Company
(“Northwestern”) and New York Life Insurance Company
(“NY Life”) (Northwestern and NY Life being hereinafter
together collectively referred to as “Lender”) making
the above-numbered loans to M-C Plaza V L.L.C., a New Jersey
limited liability company, Cal-Harbor V Urban Renewal Associates
L.P., a New Jersey limited partnership and Cal-Harbor V Leasing
Associates L.L.C., a New Jersey limited liability company
(collectively, the “Borrower”) evidenced by the
promissory notes (the “Notes”) of even date herewith in
the aggregate original principal amount of $240,000,000 and secured
by a Mortgage and Security Agreement and Financing Statement (the
“Lien Instrument”) covering property in Jersey City,
Hudson County, State of New Jersey (the “Property”),
and as an inducement required by Lender to fund said loans,
Guarantor has agreed to guarantee:
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The Recourse Obligations (as such term is
defined in paragraph 9 hereof); and,
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Following the occurrence of a Triggering Event
(as such term is defined in paragraph 9 hereof), the payment of the
Note and all amounts at any time owed to Lender under the other
Loan Documents (as hereinafter defined) and the performance of all
terms, covenants and conditions in the Loan Documents.
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1.
Therefore, for value received, Guarantor hereby, unconditionally
and irrevocably, guarantees to Lender and its successors and
assigns the full, prompt and faithful payment of all of the
Recourse Obligations, (i) notwithstanding any invalidity of, or
defect or deficiency in any Loan Documents, (ii) notwithstanding
the fact that Borrower may have no personal liability for all or a
portion of the Indebtedness and Lender’s recourse against
Borrower and Borrower’s assets may be limited, and (iii)
notwithstanding any act, omission or thing which might otherwise
operate as a legal or equitable discharge of
Guarantor. Guarantor shall, within five business days
from the date notice is given to Guarantor that any of the Recourse
Obligations is due and owing, pay such Recourse Obligation.
“Loan Documents” means the Notes,
the Lien Instrument, that certain Loan Application dated as of
August 5, 2008 from Borrower to Lender and that certain acceptance
letter issued by Lender dated September 24, 2008 (together, the
“Commitment”), that certain Absolute Assignment of
Leases and Rents of even date herewith between Borrower and Lender
(the “Absolute Assignment”), that certain Certification
of Borrowers of even date herewith, that certain Limited Liability
Company Supplement and that certain Limited Partnership Supplement
each dated contemporaneously herewith, any other supplements and
authorizations required by Lender and all other instruments and
documents (as the same may be amended from time to time) executed
by Borrower and delivered to Lender in connection with, or as
security for, the indebtedness evidenced by the Notes, except any
separate environmental indemnity agreement.
2.
In addition, for value received, Guarantor hereby, unconditionally
and irrevocably, guarantees to Lender and its successors and
assigns the full, prompt and faithful payment of the full amount of
the principal, interest and any other sums due or to become due
under the Loan Documents (the “Indebtedness”) upon and
following the occurrence of a Triggering Event, it being the
intention hereof that, following the occurrence of a Triggering
Event, Guarantor shall remain liable until the Indebtedness shall
be fully paid, (i) notwithstanding any invalidity of, or defect or
deficiency in, any Loan Document, (ii) notwithstanding the fact
that Borrower may have no personal liability for all or a portion
of the Indebtedness and Lender’s recourse against Borrower
and Borrower’s assets may be limited, and (iii)
notwithstanding any act, omission or thing which might otherwise
operate as a legal or equitable discharge of Guarantor.
Following the occurrence of a Triggering
Event, Guarantor shall, within five business days from the date a
notice is given to Guarantor that an Event of Default (as defined
in the Lien Instrument) has occurred and is continuing, cure such
Event of Default. If any Event of Default shall not be
cured by Guarantor within said five business day period, Lender
may, at its option, accelerate the Indebtedness (if operation of a
stay under the federal bankruptcy code or under any other state or
federal bankruptcy, insolvency or similar proceeding, prohibits or
delays acceleration of the Indebtedness as to Borrower, Guarantor
agrees that Guarantor’s obligations hereunder shall not be
postponed or reduced) and, within five business days from the date
a written demand from Lender is given to Guarantor, Guarantor shall
pay all of the Indebtedness, whether or not acceleration of the
Indebtedness has occurred as to Borrower.
3.
Any obligations not paid when due hereunder shall bear interest
from the date due until paid at the Default Rate (as defined in the
Notes). Guarantor hereby waives absolutely and
irrevocably, until the Indebtedness shall have been paid in full,
any right of subrogation whatsoever to Lender’s claims
against Borrower and any right of indemnity, reimbursement or
contribution from Borrower with respect to any payment made or
performance undertaken by Guarantor pursuant hereto. If
Borrower shall become a debtor under the federal bankruptcy code or
the subject of any other state or federal bankruptcy, insolvency or
similar proceeding, neither the operation of a stay nor the
discharge of the Indebtedness thereunder shall affect the liability
of Guarantor hereunder.
4.
Without limiting or lessening the liability of Guarantor under this
Guarantee, Lender may, without notice to Guarantor:
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Grant extensions of time or any other
indulgences on the Indebtedness;
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Take, give up, modify, vary, exchange, renew
or abstain from perfecting or taking advantage of any security for
the Indebtedness; and
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Accept or make compositions or other
arrangements with Borrower, realize on any security, and otherwise
deal with Borrower, other parties and any security as Lender may
deem expedient.
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5.
This Guarantee shall be a continuing guarantee, shall not be
revoked by death, shall inure to the benefit of, and be enforceable
by, any subsequent holder of the Notes and the Lien Instrument and
shall be binding upon, and enforceable against, Guarantor and
Guarantor’s heirs, legal representatives, successors and
assigns.
6.
All additional demands, presentments, notices of protest and
dishonor, and notices of every kind and nature, including those of
any action or no action on the part of Borrower, Lender or
Guarantor, are expressly waived by Guarantor. This is a
guarantee of payment and not of collection. Guarantor
hereby waives the right to require Lender to proceed against
Borrower or any other party, or to proceed against or apply any
security it may hold, waives the right to require Lender to pursue
any other remedy for the benefit of Guarantor and agrees that
Lender may proceed against Guarantor without taking any action
against any other party and without proceeding against or applying
any security it may hold. Lender may, at their election,
foreclose upon any security held by them in one or more judicial or
non-judicial sales, whether or not every aspect of such sale is
commercially reasonable, without affecting or impairing the
liability of Guarantor, except to the extent the Indebtedness shall
have been paid. Guarantor waives any defense arising out
of such an election, notwithstanding that such election may operate
to impair or extinguish any right or any remedy of Guarantor
against Borrower or any other security.
7.
Guarantor agrees to pay reasonable attorneys’ fees and all
other costs and expenses which may be incurred in the enforcement
of this Guarantee if Lender is successful in such enforcement
action.
8.
Any notices, demands, requests and consents permitted or required
hereunder or under any other Loan Document shall be in writing, may
be delivered personally or sent by certified mail, return receipt
requested, with postage prepaid, or
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