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Exhibit 10.33.4.10
Ashford
Loan No. 502859548
GUARANTY
(Senior Mezzanine Loan)
THIS GUARANTY (" Guaranty
") is executed as of April 11, 2007, by ASHFORD HOSPITALITY
LIMITED PARTNERSHIP and ASHFORD HOSPITALITY TRUST INC. (hereinafter
collectively referred to as " Guarantor "), for the benefit
of WACHOVIA BANK, NATIONAL ASSOCIATION (" Lender ").
A. ASHFORD SAPPHIRE SENIOR
MEZZ I LLC, a Delaware limited liability company and ASHFORD
SAPPHIRE SENIOR MEZZ II LLC, a Delaware limited liability company
(collectively, " Borrower ") is indebted to Lender with
respect to a loan (" Loan ") pursuant to a certain
promissory note dated of even date herewith, payable to the order
of Lender in the aggregate original principal amount of EIGHTY
MILLION ONE HUNDRED TWENTY-TWO THOUSAND AND No/100 DOLLARS
($80,122,000.00) (together with all renewals, modifications,
increases and extensions thereof, the " Note "), which is
secured by the liens and security interests created by that certain
Loan and Security Agreement (collectively, the " Security
Instrument "), between Lender and Borrower, dated of even date
herewith and further evidenced, secured or governed by the other
Loan Documents (as defined in the Security Instrument); and
B. 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 hereinafter defined);
and
C. Guarantor is the owner of
a direct or indirect interest in Borrower, and Guarantor will
directly benefit from Lender’s making the Loan to
Borrower.
NOW, THEREFORE, as an inducement
to Lender to make the Loan to Borrower thereunder, 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:
ARTICLE I
NATURE AND SCOPE OF GUARANTY
Section 1.1 Guaranty of
Obligation . Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to Lender (and its successors and
assigns), jointly and severally, the payment and performance of the
Guaranteed Obligations as and when the same shall be due and
payable, whether upon demand by Lender or by lapse of time, by
acceleration of maturity or otherwise. Guarantor hereby absolutely,
irrevocably and unconditionally covenants and agrees that it is
liable, jointly and severally, for the Guaranteed Obligations as a
primary obligor, and that each Guarantor shall fully perform,
jointly and severally, each and every term and provision
hereof.
Section 1.2 Definition of
Guaranteed Obligations . As used herein, the term "
Guaranteed Obligations " shall mean, and Guarantor shall be
liable for, and shall indemnify, defend and hold Lender and each
other Indemnified Party harmless from and against, any and all
Losses (as hereinafter defined) incurred or suffered by Lender or
any other Indemnified Party arising out of or in connection with
the matters listed below:
(a) fraud
or intentional misrepresentation by Borrower, Guarantor or any
Affiliate of Borrower or Guarantor or the failure to state a
material fact in the written information provided to Lender by or
on behalf of Borrower or any of its Affiliates in connection with
the Security Instrument, the Note or the other Loan Documents;
(b) the
misappropriation by Borrower, Guarantor or any Affiliate of
Borrower or Guarantor of any tenant security deposits or Rent;
(c) the
misapplication or conversion of Loss Proceeds;
(d) any
act of arson, intentional physical damage or waste of or to the
Property by Borrower, Owner, Guarantor or any Affiliate of Borrower
or Guarantor;
(e) Borrower’s
failure to comply with the provisions of Section 4.01
of the Security Instrument or Owner’s failure to comply with
Sections 2.02(g), 12.01, 16.01, 16.02, 18.29, 18.30 or
18.31 , inclusive, of the Mortgage;
(f) the
exercise of any right or remedy under any federal, state or local
forfeiture laws resulting in the loss or impairment of the lien of
the Security Instrument, or the priority thereof, against the
Collateral;
(g) any
modification, termination or amendment to a Ground Lease which was
not consented to by Lender;
(h) any
claims, actions or proceedings initiated by Borrower (or any
Affiliate of Borrower) alleging that the relationship of Borrower
and Lender is that of joint venturers, partners, tenants in common,
joint tenants or any relationship other than that of debtor and
creditor; or
(i) any
Transfer in violation of the provisions of Section 2.11 of the
Security Instrument.
In addition, in the event
(i) any proceeding, action, petition or filing under the
Bankruptcy Code, or any similar state or federal law now or
hereafter in effect relating to bankruptcy, reorganization or
insolvency, or the arrangement or adjustment of debts of Borrower,
Owner, Operating Tenant, or Guarantor, shall be filed by, consented
to or acquiesced in by Borrower, Owner, Operating Tenant, or
Guarantor or any of their Affiliates commences any proceeding,
action, petition or filing under the Bankruptcy Code or similar
state or federal law now or hereafter in effect relating to
bankruptcy, reorganization or insolvency, or the arrangement or
adjustment of debts with respect to Borrower, Owner, Operating
Tenant or Guarantor, or if Borrower, Owner, Operating Tenant or
Guarantor or any Affiliates of Borrower, Owner, Operating Tenant or
Guarantor shall institute any proceeding for Borrower’s,
Owner’s,
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Operating Tenant’s or Guarantor’s dissolution or
liquidation, or shall make an assignment for the benefit of
creditors (provided the Guarantor’s liability under this
sentence shall in no event exceed the Cap Amount (as set forth on
Exhibit A attached hereto)), then the Guaranteed
Obligations shall also include the unpaid balance of the Debt.
For purposes of this Guaranty, the
term " Losses " includes any and all claims, suits,
liabilities (including, without limitation, strict liabilities),
actions, proceedings, obligations, debts, damages, losses, costs,
expenses, diminutions in value, fines, penalties, charges, fees,
expenses, judgments, awards, amounts paid in settlement, punitive
damages, foreseeable and unforeseeable consequential damages, of
whatever kind or nature (including but not limited to reasonable
attorneys’ fees and other costs of defense).
Section 1.3 Nature of
Guaranty . This Guaranty is an irrevocable, absolute,
continuing guaranty of payment and performance, is joint and
several and is not a guaranty of collection. This Guaranty 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 obligations of Guarantor under this
Guaranty shall survive any foreclosure proceeding, any foreclosure
sale and delivery of any assignment in lieu of foreclosure, and any
release of record of the Security Instrument. 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.
Section 1.4 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 Person, 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.
Section 1.5 Payment by
Guarantor . If all or any part of the Guaranteed Obligations
shall not be punctually paid when due, whether at maturity or
earlier by 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.
Section 1.6 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 this Guaranty against
Guarantor, first to (i) institute suit or exhaust its remedies
against
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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.
Section 1.7 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 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 Collateral, (v) the occurrence of any breach by
Borrower or 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.
Section 1.8 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 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.
Section 1.9 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 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.
Section 1.10 Deferral of
Rights of Subrogation, Reimbursement and Contribution .
(a) Notwithstanding
any payment or payments made by any Guarantor hereunder, unless and
until payment in full of the Debt (and including interest accruing
on the Note after the commencement of a proceeding by or against
Borrower under the Bankruptcy Code which interest the parties agree
shall remain a claim that is prior and superior to any claim of
Guarantor notwithstanding any contrary practice, custom or ruling
in cases under the
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Bankruptcy Code) (i) no Guarantor will assert or exercise
any right of Lender or of such Guarantor against Borrower to
recover the amount of any payment made by such Guarantor to Lender
by way of subrogation, reimbursement, contribution, indemnity, or
otherwise arising by contract or operation of law, and such
Guarantor shall not have any right of recourse to or any claim
against assets or property of Borrower; and (ii) each
Guarantor agrees not to seek contribution or indemnity or other
recourse from any other Guarantor.
(b) Until
payment in full of the Debt (and including interest accruing on the
Note after the commencement of a proceeding by or against Borrower
under the Bankruptcy Code which interest the parties agree shall
remain a claim that is prior and superior to any claim of Guarantor
notwithstanding any contrary practice, custom or ruling in cases
under the Bankruptcy Code), Guarantor agrees not to accept any
payment or satisfaction of any kind of indebtedness of Borrower to
Guarantor and hereby assigns such indebtedness to Lender, including
the right to file proof of claim and to vote thereon in connection
with any such proceeding under the Bankruptcy Code, including the
right to vote on any plan of reorganization. If any amount of the
type more particularly described in the first sentence of this
Section 1.10(b) shall nevertheless be paid to a Guarantor by
Borrower or another Guarantor prior to payment in full of all sums
owed to Lender under the Loan Documents (the " Obligations
"), such amount shall be held in trust for the benefit of Lender
and shall forthwith be paid to Lender to be credited and applied to
the Guaranteed Obligations, whether matured or unmatured.
(c) The
provisions of this Section 1.10 shall survive the termination
of this Guaranty, and any satisfaction and discharge of Borrower by
virtue of any payment, court order or any applicable law.
Section 1.11
"Borrower" . The term
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