Exhibit 10.34
GUARANTY
AGREEMENT
[TENANT IMPROVEMENTS AND LEASING COMMISSIONS]
This GUARANTY AGREEMENT (this
“Guaranty”) is made as of November 15, 2006, by GRIFFIN
LAND & NURSERIES, INC., a Delaware corporation
(“Guarantor”), in favor of FIRST SUNAMERICA LIFE
INSURANCE COMPANY, a New York corporation
(“Lender”).
1.
Loan and Note
. This Guaranty is executed in
connection with a $20,983,087.99 loan (“Loan”) made by
Lender to Tradeport Development II, LLC, a Connecticut limited
liability company (“Borrower”). The Loan is (a)
evidenced by an Amended and Restated Promissory Note of even date
herewith in the original principal amount of the Loan
(“Note”), and (b) secured by, among other things, an
Amended and Restated Mortgage Deed, Security Agreement, Fixture
Filing, Financing Statement and Assignment of Leases and Rents of
even date herewith granted by Borrower for the benefit of Lender
(“Mortgage,” and, together with the Note and all other
documents executed by Borrower evidencing and/or securing the Loan,
“Loan Documents”) covering certain real property
commonly known as 75 International Drive, 754 Rainbow Road and 758
Rainbow Road, Windsor, Connecticut, and more particularly described
in the Mortgage (the “Property”). All capitalized
terms used herein without definition shall have the meanings given
to such terms in the Mortgage.
2.
Purpose and
Consideration . The
execution and delivery of this Guaranty by Guarantor is a condition
to Lender’s willingness to make the Loan to Borrower, is made
in order to induce Lender to make the Loan, and is made in
recognition that Lender will be relying upon this Guaranty in
making the Loan and performing any other obligations it may have
under the Loan Documents. Guarantor has a significant
ownership interest in Borrower, and, accordingly, acknowledges that
Guarantor will receive material direct and indirect benefit from
Lender making the Loan to Borrower.
3.
Guaranty .
(a)
Guarantor hereby guarantees
absolutely, primarily, and irrevocably, payment and performance of
all obligations of Borrower prior to delinquency for construction
work, tenant improvements and leasing commissions in connection
with the leasing of a portion of the Property to FedEx Ground
Package System, Inc., free and clear of any and all liens, charges,
security interests and claims of any kind and nature whatsoever
other than the lien of the Mortgage (collectively, the
“Obligations”). Guarantor agrees that this is a
guaranty of payment and performance, and not of collection.
Without limiting the foregoing, Guarantor acknowledges that the
Obligations include approximately $323,000.00 of construction costs
due on or around November 30, 2006, approximately $64,000.00 of
construction retainage due on or around December 31, 2006 and
approximately $65,000.00 of leasing commissions due on or around
December 1, 2006.
(b)
The failure of Guarantor to timely
fulfill the Obligations as set forth herein shall constitute an
Event of Default hereunder, and Guarantor shall be
liable
to Lender hereunder, jointly and
severally, for the cost to pay and/or complete the
Obligations. The failure of Guarantor to timely fulfill the
Obligations as set forth herein shall also constitute an Event of
Default under Section 6.3 of the Mortgage.
4.
Guaranty is Independent and
Absolute . The
obligations of Guarantor hereunder are independent of the
obligations of Borrower and of any other person who may become
liable with respect to the Obligations. Guarantor is jointly
and severally liable with Borrower and with any other guarantor for
the full and timely payment and performance of all of the
Obligations. Guarantor expressly agrees that a separate
action or actions may be brought and prosecuted against Guarantor
(or any other guarantor), whether or not any action is brought
against Borrower, any other guarantor or any other person for any
Obligations guaranteed hereby and whether or not Borrower, any
other guarantor or any other persons are joined in any action
against Guarantor. Guarantor further agrees that Lender shall
have no obligation to proceed against any security for the
Obligations prior to enforcing this Guaranty against Guarantor, and
that Lender may pursue or omit to pursue any and all rights and
remedies Lender has against any person or with respect to any
security in any order or simultaneously or in any other
manner. All rights of Lender and all obligations of Guarantor
hereunder shall be absolute and unconditional irrespective of (a)
any lack of validity or enforceability of the Note or any other
Loan Document, and (b) any other circumstances which might
otherwise constitute a defense available to, or a discharge of
Borrower in respect of, the Obligations.
5.
Authorizations to
Lender . Guarantor
authorizes Lender, without notice or demand and without affecting
Guarantor’s liability hereunder, from time to time (a) to
renew, extend, accelerate or otherwise change the time for payment
of, change, amend, alter, cancel, compromise or otherwise modify
the terms of the Note, including increasing the rate or rates of
interest thereunder agreed to by Borrower, and to grant any
indulgences, forbearances, or extensions of time; (b) to renew,
extend, change, amend, alter, cancel, compromise or otherwise
modify any of the terms, covenants, conditions or provisions of any
of the Loan Documents or any of the Obligations; (c) to apply any
security and direct the order or manner of sale thereof as Lender,
in Lender’s discretion, may determine; (d) to proceed against
Borrower, Guarantor or any other guarantor with respect to any or
all of the Obligations without first foreclosing against any
security therefor; (e) to exchange, release, surrender, impair or
otherwise deal in any manner with, or waive, release or subordinate
any security interest in, any security for the Obligations; (f) to
release or substitute Borrower, any other guarantors, endorsers, or
other parties who may be or become liable with respect to the
Obligations, without any release being deemed made of Guarantor or
any other such person; and (g) to accept a conveyance or transfer
to Lender of all or any part of any security in partial
satisfaction of the Obligations, or any of them, without releasing
Borrower, Guarantor, or any other guarantor, endorser or other
party who may be or become liable with respect to the Obligations,
from any liability for the balance of the Obligations.
6.
Application of Payments Received
by Lender . Any
sums of money Lender receives from or for the account of
Bo
