Exhibit 99.4
AMENDED AND RESTATED GUARANTY
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THIS AMENDED AND RESTATED GUARANTY ("Guaranty") is executed as
of February 27,2009, by DAVID LICHTENSTEIN ("Guarantor"), for the benefit of
PRESIDENTIAL REALTY CORPORATION ("Lender").
A. Lightstone Member II LLC, a Delaware limited liability
company (the "Borrower") is indebted to Lender with respect to a loan (the
"Original Loan") in the original principal amount of SEVEN MILLION FIVE HUNDRED
THOUSAND AND 00/100 DOLLARS ($7,500,000.00) pursuant to that certain Loan
Agreement, dated as of December 23, 2004, between Borrower and Lender (the
"Original Loan Agreement"), which Original Loan is evidenced by Borrower's
promissory note, dated as of December 23, 2004, payable to the order of Lender,
in the original principal amount of SEVEN MILLION FIVE HUNDRED THOUSAND AND
00/100 DOLLARS ($7,500,000.00) (the "Original Note"); and
B. As an inducement to Lender to make the Original Loan to
Borrower, Guarantor unconditionally guaranteed payment and performance to Lender
of the certain obligations of the borrower pursuant to a Guaranty dated as of
December 23, 2004 (the "Guaranty");
C. On the date hereof, Borrower and Lender are entering into,
among other things: (i) a First Modification to Loan Agreement (the "First
Modification to Loan Agreement"; the Original Loan Agreement and the First
Modification to Loan Agreement, together with all amendments, modifications,
supplements, restatements, renewals and replacements thereof, are hereinafter
collectively referred to as the "Loan Agreement"), pursuant to which, among
other things, the parties modified the Original Loan Agreement to reflect a
prior increase in the amount of the Original Loan from $7,500,000.00 to
$7,835,000.00 (as increased, the "Loan"); and (ii) an Amended and Restated
Promissory Note to evidence the Loan (the "Note");
D. The Note is secured by, among other things, the liens and
security interests created by that certain Security and Pledge Agreement, dated
as of December 23, 2004, between Borrower, as Obligor, and Lender, as Secured
Party (as amended, modified and/or restated, the "Security Instrument") and
further evidenced, secured or governed by the other Loan Documents (as defined
in the Loan Agreement); and
E. In connection with the First Modification to Loan Agreement,
the parties desire to amend and restate the terms and conditions of the
Guaranty.
NOW, THEREFORE, for good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, the parties do
hereby agree that the Guaranty is amended and restated to read 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) 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 Guarantor is liable
for the Guaranteed Obligations as a primary obligor, and that Guarantor shall
fully perform each and every term and provision hereof.
Section 1.2 Definition Of Guaranteed Obligations. As used herein,
the term "Guaranteed Obligations" shall be deemed to include, and Guarantor
shall be liable for, and shall indemnify, defend and hold Lender harmless from
and against, any and all Losses (as hereinafter defined) incurred or suffered by
Lender and arising out of or in connection with the matters listed below:
(a) fraud or intentional misrepresentation by Borrower or
Guarantor or any of their Affiliates (as defined in the Loan Agreement) in
connection with the Loan Agreement, the Security Instrument, the Note or the
other Loan Documents;
(b) the misappropriation by Borrower, Guarantor or any of their
Affiliates of any tenant security deposits or other payments including, without
limitation, rent collected more than one (1) month in advance;
(c) the misappropriation or conversion by Borrower, Guarantor or
any of their Affiliates of any and all insurance proceeds and/or any and all
condemnation awards;
(d) any arson or physical waste to or of either of the Lightstone
Properties (as defined in the Loan Agreement) or damage to either Lightstone
Property in each case resulting from the intentional acts or intentional
omissions of Borrower, Guarantor or any of their Affiliates;
(e) [INTENTIONALLY DELETED];
(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 Pledged Collateral
(as defined in the Loan Agreement);
(g) 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;
(h) the failure by Borrower, Guarantor or any of their Affiliates
to remit to Lender any and all Recourse Distributions (as defined in the Loan
Agreement) received by Borrower, Guarantor or any of their Affiliates, as and
when required by the Loan Agreement; or
(i) the Lender failing to receive under the Loan Agreement and/or
the other Loan Documents at least $500,000.00 of the outstanding principal
amount of the Indebtedness; it being understood and agreed that, for purposes of
this Section 1.2(i), any Sale Proceeds (as defined in the First Modification to
Loan Agreement) shall be applied first to accrued and unpaid Interest and then
to the outstanding principal amount of the Indebtedness.
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 shall be filed by, consented to
or acquiesced in by Borrower or Guarantor, or filed against Borrower by any
Affiliate (as defined in the Loan Agreement) of either Borrower or Guarantor, or
if Borrower or Guarantor or any Affiliate of either of them shall institute any
proceeding for Borrower's dissolution or liquidation, or Borrower shall make an
assignment for the benefit of creditors, (ii) of a Transfer (as defined in the
Loan Agreement) in violation of the provisions of the Loan Agreement, or (iii)
Borrower or any Affiliate contests or interferes with Lender's enforcement of
its rights and remedies hereunder or under the Loan Documents by asserting any
defense (x) as to the validity of the obligations under the Loan Documents or in
any way relating to the structure of the Borrower or the enforceability of
Lender's rights and remedies under the Loan Documents, or (y) for the purpose of
delaying, hindering or impairing Lender's rights and remedies under the Loan
Documents (collectively, a "Contest") (provided that if any such Person (as
defined in the Loan Agreement) obtains a non-appealable order successfully
asserting a Contest, Guarantor shall have no liability under this clause (iii)),
then the Guaranteed Obligations shall also include the unpaid balance of the
Indebtedness.
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 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 deed 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 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 Property, (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.
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.
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(a) Notwithstanding any payment or payments made by Guarantor
hereunder, unless and until payment in full of the Indebtedness (as defined in
the Loan Agreement) (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 will not assert or exercise
any right of Lender or of Guarantor against Borrower to recover the amount of
any payment made by Guarantor to Lender by way of subrogation, reimbursement,
contribution, indemnity, or otherwise arising by contract or operation of law,
and Guarantor shall not have any right of recourse to or any claim against
assets or property of Borrower.
(b) Until payment in full of the Indebtedness (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 Guarantor by Borrower 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 Intentionally Omitted.
Section 1.12 Borrower. The term "Borrower" as used herein shall include
any new or successor corporation, association, partnership (general or limited),
joint venture, limited liability company, trust or other individual or
organization formed as a result of any merger, reorganization, sale, transfer,
devise, gift or bequest of Borrower or any interest in Borrower.
ARTICLE II
EVENTS AND CIRCUMSTANCES NOT REDUCING OR DISCHARGING
GUARANTOR'S OBLIGATIONS
Guarantor hereby consents and agrees to each of the following,
and agrees that Guarantor's obligations under this Guaranty shall not be
released, diminished, impaired, reduced or adversely affected by any of the
following, and waives any common law, equitable, statutory or other rights
(including without limitation rights to notice) which Guarantor might otherwise
have as a result of or in connection with any of the following:
Section 2.1 Modifications. Any renewal, extension, increase,
modification, alteration or rearrangement of all or any part of the Guaranteed
Obligations, Note, Loan Documents, or other document, instrument, contract or
understanding between Borrower and Lender, or any other parties, pertaining to
the Guaranteed Obligations or any failure of Lender to notify Guarantor of any
such action.
Section 2.2 Adjustment. Any adjustment, indulgence, forbearance or
compromise that might be granted or given by Lender to Borrower or any
Guarantor.
Section 2.3 Condition Of Borrower Or Guarantor. The insolvency,
bankruptcy, arrangement, adjustment, composition, liquidation, disability,
dissolution or lack of power of Borrower, Guarantor or any other Person at any
time liable for the payment of all or part of the Guaranteed Obligations; or any
dissolution of Borrower or Guarantor, or any sale, lease or transfer of any or
all of the assets of Borrower or Guarantor, or any changes in the shareholders,
partners or members of Borrower or Guarantor; or any reorganization of Borrower
or Guarantor.
Section 2.4 Invalidity Of Guaranteed Obligations. The invalidity,
illegality or unenforceability of all or any part of the Guaranteed Obligations,
or any document or agreement executed in connection with the Guaranteed
Obligations, for any reason whatsoever, including without limitation the fact
that (i) the Guaranteed Obligations, or any part thereof, exceed the amount
permitted by law, (ii) the act of creating the Guaranteed Obligations or any
part thereof, is ultra vires, (iii) the officers or representatives executing
the Note or the other Loan Documents or otherwise creating the Guaranteed
Obligations acted in excess of their authority, (iv) the Guaranteed Obligations
violate applicable usury laws, (v) Borrower has valid defenses, claims or
offsets (whether at law, in equity or by agreement) which render the Guaranteed
Obligations wholly or partially uncollectible from Borrower, (vi) the creation,
performance or repayment of the Guaranteed Obligations (or the execution,
delivery and performance of any document or instrument representing part of the
Guaranteed Obligations or executed in connection with the Guaranteed
Obligations, or given to secure the repayment of the Guaranteed Obligations) is
illegal, uncollectible or unenforceable, or (vii) the Note or any of the other
Loan Documents have been forged or otherwise are irregular or not genuine or
authentic, it being agreed that Guarantor shall remain liable hereon regardless
of whether Borrower or any other Person be found not liable on the Guaranteed
Obligations or any part thereof for any reason.
Section 2.5 Release Of Obligors. Any full or partial release of the
liability of Borrower on the Guaranteed Obligations, or any part thereof, or of
any co-guarantors, or any other Person or entity now or hereafter liable,
whether directly or indirectly, jointly, severally, or jointly and severally,
to pay, perform, guarantee or assure the payment of the Guaranteed Obligations,
or any part thereof, it being recognized, acknowledged and agreed by Guarantor
that Guarantor may be required to pay the Guaranteed Obligations in full without
assistance or support of any other Person, and Guarantor has not been induced to
enter into this Guaranty on the basis of a contemplation, belief, understanding
or agreement that other parties will be liable to pay or perform the Guaranteed
Obligations, or that Lender will look to other parties to pay or perform the
Guaranteed Obligations.
Section 2.6 Other Collateral. The taking or accepting of any other
security, collateral or guaranty, or other assurance of payment, for all or any
part of the Guaranteed Obligations.
Section 2.7 Release Of Collateral. Any release, surrender, exchange,
subordination, deterioration, waste, loss or impairment (including, without
limitation, negligent, willful, unreasonable or unjustifiable impairment) of any
collateral, property or security, at any time existing in connection with, or
assuring or securing payment of, all or any part of the Guaranteed Obligations.
Section 2.8 Care And Diligence. The failure of Lender or any other
Person to exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of such
collateral, property or security, including but not limited to any neglect,
delay, omission, failure or refusal of Lender (i) to take or prosecute any
action for the collection of any of the Guaranteed Obligations, (ii) to
foreclose, or initiate any action to foreclose, or, once commenced, prosecute to
completion any action to foreclose upon any security therefor, or (iii) to take
or prosecute any action in connection with any instrument or agreement
evidencing or securing all or any part of the Guaranteed Obligations.
Section 2.9 Unenforceability. The fact that any collateral, security,
security interest or lien contemplated or intended to be given, created or
granted as security for the repayment of the Guaranteed Obligations, or any part
thereof, shall not be properly perfected or created, or shall prove to be
unenforceable or subordinate to any other security interest or lien, it being
recognized and agreed by Guarantor that Guarantor is not entering into this
Guaranty in reliance on, or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of any of the collateral for the
Guaranteed Obligations.
Section 2.10 Offset. The Note, the Guaranteed Obligations and the
liabilities and obligations of Guarantor to Lender hereunder, shall not be
reduced, discharged or released because of or by reason of any existing or
future right of offset, claim or defense of Borrower against Lender, or any
other Person, or against payment of the Guaranteed Obligations, whether such
right of offset, claim or defense arises in connection with the Guaranteed
Obligations (or the transactions creating the Guaranteed Obligations) or
otherwise.
Section 2.11 Merger. The reorganization, merger or consolidation of
Borrower into or with any other corporation or entity.
Section 2.12 Preference. Any payment by Borrower to Lender is held to
constitute a preference under bankruptcy laws, or for any reason Lender is
required to refund such payment or pay such amount to Borrower or someone else.
Section 2.13 Other Actions Taken Or Omitted. Any other action taken or
omitted to be taken with respect to the Loan Documents, the Guaranteed
Obligations, or the security and collateral therefor, whether or not such action
or omission prejudices Guarantor or increases the likelihood that Guarantor will
be required to pay the Guaranteed Obligations pursuant to the terms hereof, it
is the unambiguous and unequivocal intention of Guarantor that Guarantor shall
be obligated to pay the Guaranteed Obligations when due, notwithstanding any
occurrence, circumstance, event, action, or omission whatsoever, whether or not
contemplated, and whether or not otherwise or particularly described herein,
which obligation shall be deemed satisfied only upon the full and final payment
and satisfaction of the Guaranteed Obligations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into the Loan Documents and extend
credit to Borrower, Guarantor represents and warrants to Lender as follows:
Section 3.1 Benefit. Guarantor is an Affiliate of Borrower, is the
owner of a direct or indirect interest in Borrower, and has received, or will
receive, direct or indirect benefit from the making of this Guaranty with
respect to the Guaranteed Obligations.
Section 3.2 Familiarity And Reliance. Guarantor is familiar with, and
has independently reviewed books and records regarding, the financial condition
of Borrower and is familiar with the value of any and all collateral intended to
be created as security for the payment of the Note or Guaranteed Obligations;
provided, however, Guarantor is not relying on such financial condition or the
collateral as an inducement to enter into this Guaranty.
Section 3.3 No Representation By Lender. Neither Lender nor any other
Person has made any representation, warranty or statement to Guarantor in order
to induce Guarantor to execute this Guaranty.
Section 3.4 Guarantor's Financial Condition. As of the date hereof,
and after giving effect to this Guaranty and the contingent obligation evidenced
hereby, Guarantor is, and will be, Solvent.
Section 3.5 Legality. The execution, delivery and performance by
Guarantor of this Guaranty and the consummation of the transactions contemplated
hereunder do not, and will not, contravene or conflict with any law, statute or
regulation whatsoever to which Guarantor is subject or constitute a default
(or an event which with notice or lapse of time or both would constitute a
default) under, or result in the breach of, any indenture, mortgage, deed of
trust, charge, lien, or any contract, agreement or other instrument to which
Guarantor is a party or which may be applicable to Guarantor. This Guaranty is
a legal and binding obligation of Guarantor and is enforceable in accordance
with its terms, except as limited by bankruptcy, insolvency or other laws of
general application relating to the enforcement of creditors' rights.
Section 3.6 Survival. All representations and warranties made by
Guarantor herein shall survive the execution hereof.
Section 3.7 Review Of Documents. Guarantor has examined the Note
and all of the Loan Documents.
Section 3.8 Litigation. Except as otherwise disclosed to Lender, there
are no proceedings pending or, so far as Guarantor knows, threatened before any
court or administrative agency which, if decided adversely to Guarantor, would
materially adversely affect the financial condition of Guarantor or the
authority of Guarantor to enter into, or the validity or enforceability of, this
Guaranty.
Section 3.9 Tax Returns. Guarantor has filed all required federal,
state and local tax returns and has paid all taxes as shown on such returns as
they have become due. No claims have been assessed and are unpaid with respect
to such taxes.
ARTICLE IV
SUBORDINATION OF CERTAIN INDEBTEDNESS
Section 4.1 Subordination Of All Guarantor Claims. As used herein, the
term "Guarantor Claims" shall mean all debts and liabilities of Borrower to
Guarantor, whether such debts and liabilities now exist or are hereafter
incurred or arise, or whether the obligations of Borrower thereon are direct,
contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or liabilities be evidenced by note,
contract, open account, or otherwise, and irrespective of the Person or Persons
in whose favor such debts or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by Guarantor. The Guarantor Claims shall include, without
limitation, all rights and claims of Guarantor against Borrower (arising as a
result of subrogation or otherwise) as a result of Guarantor's payment of all or
a portion of the Guaranteed Obligations to the extent the provisions of Section
1.10 hereof are unenforceable. Upon the occurrence and during the continuance of
an Event of Default (as defined in the Loan Agreement), Guarantor shall not
receive or collect, directly or indirectly, from Borrower or any other Person
any amount upon the Guarantor Claims.
Section 4.2 Claims In Bankruptcy. In the event of receivership,
bankruptcy, reorganization, arrangement, debtor's relief, or other insolvency
proceedings involving Guarantor as debtor, Lender shall have the right to prove
its claim in any such proceeding so as to establish its rights hereunder and
receive directly from the receiver, trustee or other court custodian dividends
and payments which would otherwise be payable upon Guarantor Claims. Guarantor
hereby assigns such dividends and payments to Lender. Should Lender receive,
for application upon the Guaranteed Obligations, any such dividend or payment
which is otherwise payable to Guarantor, and which, as between Borrower and
Guarantor, shall constitute a credit upon the Guarantor Claims, then upon
payment to Lender in full of the Guaranteed Obligations, Guarantor shall become
subrogated to the rights of Lender to the extent that such payments to Lender on
the Guarantor Claims have contributed toward the liquidation of the Guaranteed
Obligations, and such subrogation shall be with respect to that portion of the
Guaranteed Obligations which would have been unpaid if Lender had not received
dividends or payments upon the Guarantor Claims.
Section 4.3 Payments Held In Trust. In the event that, notwithstanding
anything to the contrary in this Guaranty, Guarantor should receive any funds,
payment, claim or distribution which is prohibited by this Guaranty, Guarantor
agrees to hold in trust for Lender an amount equal to the amount of all funds,
payments, claims or distributions so received, and agrees that it shall have
absolutely no dominion over the amount of such funds, payments, claims or
distributions so received except to pay them promptly to Lender, and Guarantor
covenants promptly to pay the same to Lender.
Section 4.4 Liens Subordinate. Guarantor agrees that any liens,
security interests, judgment liens, charges or other encumbrances upon
Borrower's assets securing payment of the Guarantor Claims shall be and remain
inferior and subordinate to any liens, security interests, judgment liens,
charges or other encumbrances upon Borrower's assets securing payment of the
Guaranteed Obligations, regardless of whether such encumbrances in favor of
Guarantor or Lender presently exist or are hereafter created or attach. Without
the prior written consent of Lender, Guarantor shall not (i) exercise or enforce
any creditor's right it may have against Borrower, or (ii) foreclose, repossess,
sequester or otherwise take steps or institute any action or proceedings
(judicial or otherwise, including, without limitation, the commencement of, or
joinder in, any liquidation, bankruptcy, rearrangement, debtor's relief or
insolvency proceeding) to enforce any liens, mortgages, deeds of trust, security
interests, collateral rights, judgments or other encumbrances on assets of
Borrower held by Guarantor.
ARTICLE V
MISCELLANEOUS
Section 5.1 No Waiver; Remedies Cumulative. No failure or delay on the
part of Lender in exercising any right, remedy, power or privilege hereunder or
under the other Loan Documents and no course of dealing between Guarantor and
Lender shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder or under the other
Loan Documents preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege hereunder or thereunder. The rights
and remedies provided herein and in the other Loan Documents are cumulative and
not exclusive of any rights or remedies provided by law. The giving of notice to
or demand on Guarantor which notice or demand is not required hereunder or under
the other Loan Documents shall not entitle Guarantor to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights, remedies, powers or privileges of Lender in any circumstances not
requiring notice or demand.
Section 5.2 Notices. All notices, requests and other communications to
either of Lender and Guarantor shall be given in the manner set forth in
Section 14.1 of the Loan Agreement, and to each addressee at the address set
forth below:
Guarantor: David Lichtenstein
The Lightstone Group
1985 Cedar Bridge Avenue
Lakewood, New Jersey 08701
Facsimile No.: (732) 363-7183
With a copy to: Herrick, Feinstein LLP
2 Park Avenue
New York, New York 10016
Attention: Sheldon A. Chanales, Esq.
Facsimile No.: (212) 592-1500
Lender: Presidential Realty Corporation
180 South Broadway
White Plains, New York 10605
Attention: Jeffrey F. Joseph, President
Facsimile No.: (914) 948-1327
With a copy to: Cuddy & Feder LLP
445 Hamilton Avenue, 14th Floor
White Plains, New York 10601
Attention: Kenneth F. Jurist, Esq.
Facsimile No.: (914) 761-5372
or such other address as Guarantor or Lender shall hereafter specify by not less
than ten (10) days prior written notice as provided herein; provided, however,
that notwithstanding any provision of this Section to the contrary, such notice
of change of address shall be deemed given only upon actual receipt thereof.
Rejection or other refusal to accept or the inability to deliver because of
changed addresses of which no notice was given as herein required shall be
deemed to be receipt of the notice, demand, statement, request or consent.
Section 5.3 Governing Law; Jurisdiction. This Guaranty shall be
governed by and construed in accordance with the laws of the State of New York
and the applicable laws of the United States of America. Guarantor hereby
irrevocably submits to the jurisdiction of any court of competent jurisdiction
located in the State of New York in connection with any proceeding out of or
relating to this Guaranty.
Section 5.4 Invalid Provisions. If any provision of this Guaranty is
held to be invalid, illegal or unenforceable in any respect, this Guaranty
shall be construed without such provision.
Section 5.5 Amendments. The terms of this Guaranty, together with the
terms of the other Loan Documents, constitute the entire understanding and
agreement of the parties hereto and supersede all prior agreements,
understandings and negotiations between Guarantor and Lender with respect to the
Guaranteed Obligations. This Guaranty, and any provisions hereof, may not be
modified, amended, waived, extended, changed, discharged or terminated orally
or by any act on the part of Guarantor or Lender, but only by an agreement in
writing signed by the party against whom enforcement of any modification,
amendment, waiver, extension, change, discharge or termination is sought.
Section 5.6 Parties Bound; Assignment. This Guaranty shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors, assigns and legal representatives; provided, however, that Guarantor
may not, without the prior written consent of Lender, assign any of its rights,
powers, duties or obligations hereunder.
Section 5.7 Headings; Construction Of Documents; Definitions. The
headings and captions of various sections of this Guaranty are for convenience
of reference only and are not to be construed as defining or limiting, in any
way, the scope or intent of the provisions hereof. Guarantor acknowledges that
it was represented by competent counsel in connection with the negotiation and
drafting of this Guaranty and the other Loan Documents and that neither this
Guaranty nor the other Loan Documents shall be subject to the principle of
construing the meaning against the Person who drafted same. All capitalized
terms not otherwise defined herein shall have the meanings set forth in the
Loan Agreement.
Section 5.8 Recitals. The recital and introductory paragraphs hereof
are a part hereof, form a basis for this Guaranty and shall be considered prima
facie evidence of the facts and documents referred to therein.
Section 5.9 Counterparts. To facilitate execution, this Guaranty may be
executed in as many counterparts as may be convenient or required. It shall not
be necessary that the signature or acknowledgment of, or on behalf of, each
party, or that the signature of all Persons required to bind any party, or the
acknowledgment of such party, appear on each counterpart. All counterparts shall
collectively constitute a single instrument. It shall not be necessary in making
proof of this Guaranty to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, and the respective
acknowledgments of, each of the parties hereto. Any signature or acknowledgment
page to any counterpart may be detached from such counterpart without impairing
the legal effect of the signatures or acknowledgments thereon and thereafter
attached to another counterpart identical thereto except having attached to it
additional signature or acknowledgment pages.
Section 5.10 Cumulative Rights. The rights of Lender under this
Guaranty shall be separate, distinct and cumulative and none shall be given
effect to the exclusion of the others. No act of Lender shall be construed as
an election to proceed under any one provision herein to the exclusion of any
other provision. Lender shall not be limited exclusively to the rights and
remedies herein stated but shall be entitled, subject to the terms of this
Guaranty, to every right and remedy now or hereafter afforded by law.
Section 5.11 Waiver Of Counterclaim And Right To Trial By Jury.
GUARANTOR HEREBY WAIVES THE RIGHT TO ASSERT A COUNTERCLAIM, OTHER THAN A
COMPULSORY COUNTERCLAIM, IN ANY ACTION OR PROCEEDING BROUGHT AGAINST IT BY
LENDER OR ITS AGENTS, AND WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER OR IN ANY COUNTERCLAIM
GUARANTOR MAY BE PERMITTED TO ASSERT HEREUNDER OR WHICH MAY BE ASSERTED BY
LENDER OR ITS AGENTS AGAINST GUARANTOR, OR IN ANY MATTERS WHATSOEVER ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THIS GUARANTY, THE INDEBTEDNESS OR THE
GUARANTEED OBLIGATIONS.
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IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty
as of the day and year first above written.
GUARANTOR:
By /s/ David Lichtenstein
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David Lichtenstein
State of New York )
_________ ) ss.:
County of )
On the day _____ day of February in the year 2009 before me,
the undersigned, personally appeared David Lichtenstein, personally known to me
or proved to me on the basis of satisfactory evidence to be the individual(s)
whose name(s) is (are) subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their capacity(ies), and that
by his/her/their signature(s) on the instrument, the individual(s), or the
person upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public