EXHIBIT 2.2
GUARANTY
This GUARANTY (this "Guaranty"), dated as of July 1, 2003, is
by Arbor Commercial Mortgage, LLC, a New York limited liability company ("ACM"),
ACM 34th Street, LLC, a Delaware limited liability company and a wholly-owned
subsidiary of ACM ("ACM 34th"), Arbor 30th LLC, a New York limited liability
company and a wholly-owned subsidiary of ACM ("Arbor 30th"), Arbor National CJ
LLC, a New York limited liability company and a wholly-owned subsidiary of ACM
("CJ") and Arbor National CJ II, LLC, a New York limited liability company and a
wholly-owned subsidiary of ACM ("CJ II", and together with ACM 34th, Arbor 30th
and CJ, the "Subsidiary Guarantors"), in favor of Arbor Realty Limited
Partnership, a Delaware limited partnership ("ARLP"), ANMB Holdings, LLC, a New
York limited liability company ("ANMB") and ANMB Holdings II, LLC, a New York
limited liability company ("ANMB II").
W I T N E S S E T H
WHEREAS, pursuant to the terms of that certain contribution
agreement (the "Contribution Agreement"), dated as of July 1, 2003 (the
"Contribution Date"), by and among ACM, Arbor Realty Trust, Inc., a Maryland
corporation ("ART") and ARLP (capitalized terms used but not defined herein have
the meanings assigned to them in the Contribution Agreement), ACM has agreed to
contribute (i) the ACM Initial Assets, (ii) ACM's membership interests in ANMB
II, the original lender under the Central Jersey Mezzanine Loan, and (iii) the
Membership Interests of the Preferred Equity Holders of the Preferred Equity
Investments to ARLP, collectively, in exchange for the Partnership Units and the
Warrants;
WHEREAS, each of the 333 East 34th Street Mezzanine Loan, the 130 West
30th Street Bridge Loan and the Central Jersey Mezzanine Loan (collectively, the
"Guaranteed Loans") are Initial Assets;
WHEREAS, ANMB is a Preferred Equity Holder in that it holds 100% of the
preferred interests of Central Jersey Prime Holdings, LLC (the "Guaranteed
Preferred Equity Investment" and together with the Guaranteed Loans, the
"Guaranteed Investments");
WHEREAS, ACM 34th holds a 15% Percentage Interest (as defined in the
Operating Agreement of 333 East 34th, LLC) in 333 East 34th, LLC, the borrower
under the 333 East 34th Street Mezzanine Loan;
WHEREAS, Arbor 30th holds a 50% Percentage Interest (as defined in the
Operating Agreement of 130 West 30th, LLC) in 130 West 30th, LLC, the borrower
under the 130 West 30th Street Bridge Loan;
The material marked [*] has been omitted pursuant to a request for confidential
treatment by Arbor Realty Trust, Inc. and has been filed separately with the
Securities and Exchange Commission.
WHEREAS, CJ II holds a 18% Sharing Percentage (as defined in the
Operating Agreement of Central Jersey Prime III LLC) in Central Jersey Prime III
LLC, the managing member of the borrower under the Central Jersey Mezzanine
Loan;
WHEREAS, CJ holds a 18% Junior Interest (as defined in the Operating
Agreement of Central Jersey Prime Holdings LLC) in Central Jersey Prime Holdings
LLC; and
WHEREAS, ACM and the Subsidiary Guarantors (together, the
"Guarantors") desire to provide ARLP, ANMB and ANMB II with a limited guaranty
of (i) the repayment of a certain portion of the principal balance of each of
the Guaranteed Loans and (ii) the repurchase of a certain portion of the
preferred capital contribution of ANMB in Central Jersey Prime Holdings LLC.
NOW, THEREFORE, in consideration of the foregoing and the
covenants and obligations set forth in this Guaranty, the parties hereto agree
as follows:
1. Definitions. The following terms, as used in this Guaranty, shall have
the following meanings (unless otherwise expressly provided herein):
"130 West 30th Street Note" means the Amended, Consolidated and
Restated Promissory Note made as of September 20, 2001 by 130 West
30th, LLC in favor of ACM.
"130 West 30th Operating Agreement" means the Operating Agreement of
130 West 30th, LLC, dated as of September 20, 2001, by and between H.J.
Development, LLC and Arbor 30th.
"333 East 34th Street Note" means the Promissory Note made as of
January 9, 2002 by 333 East 34th, LLC in favor of ACM.
"333 East 34th Operating Agreement" means the Operating Agreement of
333 East 34th, LLC, dated as of June 19, 2001, by and among ACM 34th,
East 34th Street Management, LLC and 333 East 34th Street, LLC.
"Central Jersey Mezzanine Operating Agreement" means the Operating
Agreement of Central Jersey Prime III LLC, dated as of July 12, 2000,
by and among Central Jersey LLC, ANMB II, TRAC Central Jersey II LLC
and CJ II, as amended by the Amendment to Operating Agreement, dated as
of August 1, 2002 and the Amendment to Operating Agreement, dated as of
May 9, 2003.
"Central Jersey Note" means the Promissory Note made as of August 1,
2002 by Central Jersey Sub VI LLC and Central Jersey Sub VII LLC in
favor of ANMB II, as amended by (1) the Modification of Promissory Note
and Other Loan Documents and Assumption and Reaffirmation, made as of
October 31, 2002, by and among Central Jersey Sub VII LLC, ANMB II and
the other parties thereto and (2) the Second Modification of Promissory
Note and Other Loan Documents
and Reaffirmation, made as of May 9, 2003, by and among Central Jersey
Sub VII LLC, ANMB II and the other parties thereto.
"Central Jersey Preferred Operating Agreement" means the Limited
Liability Company Agreement of Central Jersey Prime Holdings LLC, dated
as of May 9, 2003, by and among Central Jersey LLC, ANMB, CJ and TRAC
Central Jersey LLC.
"Guaranteed Loan Principal Balance" means:
(a) with respect to the 130 West 30th Street Bridge Loan, the
outstanding principal balance of the 130 West 30th Street Bridge Loan
as of the Contribution Date, namely $16,000,000.00, plus (a) any
Interest Expense relating to the 130 West 30th Street Bridge Loan paid
by ARLP subsequent to the Contribution Date, minus (b) the aggregate of
the following amounts received by ARLP subsequent to the Contribution
Date in accordance with the terms of the 130 West 30th Street Note: (i)
interest payments on the unpaid principal balance of the 130 West 30th
Street Bridge Loan, and (ii) Late Charges (as defined Section 1.3 of
the 130 West 30th Street Note);
(b) with respect to the 333 East 34th Street Mezzanine Loan, the
outstanding principal balance of the 333 East 34th Street Mezzanine
Loan as of the Contribution Date, namely $10,000,000.00, plus (a) any
Interest Expense relating to the 333 East 34th Street Mezzanine Loan
paid by ARLP subsequent to the Contribution Date, minus (b) the
aggregate of the following amounts received by ARLP subsequent to the
Contribution Date in accordance with the terms of the 333 East 34th
Street Note: (i) interest payments on the unpaid principal balance of
the 333 East 34th Street Mezzanine Loan, (ii) Late Charges (as defined
Section 1.9 of the 333 East 34th Street Note), and (iii) Extension Fees
(as defined Section 2.7 of the 130 West 30th Street Note); and
(c) with respect to the Central Jersey Mezzanine Loan, the
outstanding principal balance of the Central Jersey Mezzanine Loan as
of the Contribution Date, namely $3,000,000.00, plus (a) any Interest
Expense relating to the Central Jersey Mezzanine Loan paid by ANMB II
(or ARLP, if applicable) subsequent to the Contribution Date, minus (b)
the aggregate of the following amounts received by ANMB II (or ARLP, if
applicable) subsequent to the Contribution Date in accordance with the
terms of the Central Jersey Note: (i) interest payments on the unpaid
principal balance of the Central Jersey Mezzanine Loan, and (ii) any
Exit Fees (as defined in the Central Jersey Note).
"Guaranteed Preferred Capital Contribution" means the Unreturned
Preferred Capital Contribution (as defined in the Central Jersey
Preferred Operating Agreement) as of the Contribution Date, namely
$19,300,000.00, plus (a) any Interest Expense relating to the Central
Jersey Preferred Equity Investment paid by ARLP (or ANMB, if
applicable) subsequent to the Contribution Date, minus (b) the
aggregate of the following amounts received by ANMB subsequent to the
Contribution Date: (i) any Capital Proceeds or Net Cash Receipts (as
each such term is defined in the Central Jersey Preferred Operating
Agreement) and (ii) any Preferred Return (as defined in the Central
Jersey Preferred Operating Agreement).
"Interest Expense" means any interest payments made by ARLP after the
Contribution Date with respect to any of the Guaranteed Investments
pursuant to (a) the Assignment and Assumption Agreement, dated as of
July 1, 2003, by and between ACM and ARLP relating to the [*]
Repurchase Agreement, (b) the Structured Facility Warehousing Credit
and Security Agreement, dated as of July 1, 2003, by and between [*]
and ARLP, (c) the Master Repurchase Agreement, dated as of July 1,
2003, by and between [*] and ARLP, or (d) any other warehouse facility,
repurchase agreement, credit agreement or other agreement entered into
by ARLP which provides financing for the Guaranteed Investments.
"Subsidiary Guarantors' Aggregate Return" means the total of the
following amounts received prior to and including the Termination Date:
(a) any "net cash flow" (as such term is defined in the 130 West
30th Operating Agreement) distributed to Arbor 30th pursuant to Section
8 of the 130 West 30th Operating Agreement, subject to the terms and
provisions of the 130 West 30th Operating Agreement, plus
(b) any Cash Available for Distribution (as defined in the 333
East 34th Operating Agreement) distributed to ACM 34th pursuant to
Article IV of the 333 East 34th Operating Agreement, subject to the
terms and provisions of the 333 East 34th Operating Agreement, plus
(c) any Capital Proceeds and Net Cash Receipts (as each such term
is defined in the Central Jersey Preferred Operating Agreement)
distributed to CJ pursuant to Article 5 of the Central Jersey Preferred
Operating Agreement, subject to the terms and provisions of the Central
Jersey Preferred Operating Agreement, plus
(d) any Available Cash or Capital Proceeds (as each such term is
defined in the Central Jersey Mezzanine Operating Agreement) or Special
Tax Distributions (as described in Section 8.9 of the Central Jersey
Mezzanine Operating Agreement) distributed to CJ II pursuant to Article
8 of the Central Jersey Mezzanine Operating Agreement, subject to the
terms and provisions of the Central Jersey Mezzanine Operating
Agreement.
2. Guaranty.
(a) Subject to the limitations set forth in Section 3 hereof, if
any portion of the Guaranteed Loan Principal Balance of any of the
Guaranteed Loans is not paid to
The material marked [*] has been omitted pursuant to a request for confidential
treatment by Arbor Realty Trust, Inc. and has been filed separately with the
Securities and Exchange Commission.
ARLP or ANMB II, as applicable, at the applicable Guaranteed Loan's
maturity date in accordance with the terms of the note and other loan
documents relating to such Guaranteed Loan (the "Unpaid Guaranteed Loan
Principal Balance"), the Guarantors, jointly and severally, hereby
agree to pay to ARLP or ANMB II, as applicable, the portion of the
Unpaid Guaranteed Loan Principal Balance of such Guaranteed Loan that
is equal to or less than the Subsidiary Guarantors' Aggregate Return.
(b) Subject to the limitations set forth in Section 3 hereof, if
any portion of the Guaranteed Preferred Capital Contribution is not
paid to ANMB (or ARLP, if applicable) at the Required Purchase Date (as
defined in the Central Jersey Preferred Operating Agreement) in
accordance with Section 11.3 of the Central Jersey Preferred Operating
Agreement (the "Unpaid Guaranteed Preferred Capital Contribution"), the
Guarantors, jointly and severally, hereby agree to pay to ANMB (or
ARLP, if applicable) the portion of the Unpaid Guaranteed Preferred
Capital Contribution that is equal to or less than the Subsidiary
Guarantors' Aggregate Return.
(c) As an Unpaid Guaranteed Loan Principal Balance or the Unpaid
Guaranteed Preferred Capital Contribution becomes due and payable from
time to time by the Guarantors pursuant to Section 2(a) and Section
2(b), respectively, ARLP shall deliver to ACM, within 10 business days
of such amounts becoming due, written notice stating the amount of such
Unpaid Guaranteed Loan Principal Balance or Unpaid Guaranteed Preferred
Capital Contribution, as applicable. To the extent that the Subsidiary
Guarantors' Aggregate Return as of the date such notice is received is
greater than or equal to the amount stated in such notice, the
Guarantors shall disburse the Unpaid Guaranteed Loan Principal Balance
or Unpaid Guaranteed Preferred Capital Contribution, as applicable, to
ARLP, ANMB II or ANMB, as applicable, within 10 business days of
receipt of such notice. To the extent that the Subsidiary Guarantors'
Aggregate Return as of the date such notice is received is less than
the amount stated in such notice, such Unpaid Guaranteed Loan Principal
Balance or Unpaid Guaranteed Preferred Capital Contribution, as
applicable, shall remain due and payable by the Guarantors, and, as
amounts constituting Subsidiary Guarantors' Aggregate Return are
received by the Guarantors, such amounts shall be disbursed to ARLP,
ANMB II or ANMB, as applicable, within five business days following
their receipt, until all Unpaid Guaranteed Loan Principal Balances or
the Unpaid Guaranteed Preferred Capital Contribution, as applicable,
has been fully paid.
3. Termination. This Guaranty will be terminated and the Guarantors will
no longer be obligated to pay any further amounts to ARLP or ANMB II,
as applicable, in respect of any of the Guaranteed Loans or to pay any
further amounts to ANMB in respect of the Guaranteed Preferred Equity
Investment on the date on which all of the following conditions are met
(the "Termination Date"):
(a) the remaining aggregate Unpaid Guaranteed Loan Principal Balance of
the Guaranteed Loans, plus the remaining Unpaid Guaranteed
Preferred Capital Contribution, is less than $5,000,000,
(b) no Event of Default (as such term is defined in note and the loan
documents relating to each of the Guaranteed Loans) with respect to
any Guaranteed Loan has occurred and is continuing, and
(c) no Trigger Event (as defined in the Central Jersey Preferred
Operating Agreement) has occurred and is continuing.
4. Notice of Receipt of Returns. ACM shall provide written notice to ARLP
within 15 business days of the end of each fiscal quarter of all
amounts that constitute Subsidiary Guarantors' Aggregate Return
received by the Guarantors during the preceding quarter.
5. Governing Law. This Guaranty shall be governed by and construed in
accordance with the laws of the State of New York.
6. Severability. If any provision of this Guaranty or the application of
any such provision to any person or circumstances shall be held invalid
by a court of competent jurisdiction, the remainder of this Guaranty,
including the remainder of the provision held invalid, or the
application of such provision to persons or circumstances other than
those as to which it is held invalid, shall not be affected thereby.
7. Counterparts. This Guaranty may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
8. Headings. All section headings herein are for convenience of reference
and are not part of this Guaranty, and no construction or interference
shall be derived therefrom.
IN WITNESS WHEREOF, the parties hereto has executed this
Guaranty as of the date first above written.
ARBOR COMMERCIAL MORTGAGE, LLC
By: /s/ Frederick C. Herbst
--------------------------
Name: Frederick C. Herbst
Title: Chief Financial Officer
ARBOR 30th, LLC
By: Arbor Commercial Mortgagte, LLC
By: /s/ Guy R. Milone, Jr.
--------------------------
Name: Guy R. Milone, Jr.
Title: Associate General
Counsel/Member
ACM 34th STREET LLC
By: Arbor Commercial Mortgagte, LLC
By: /s/ Guy R. Milone, Jr.
--------------------------
Name: Guy R. Milone, Jr.
Title: Associate General
Counsel/Member
ARBOR NATIONAL CJ LLC
By: /s/ Valerie Sganga
--------------------------
Name: Valerie Sganga
Title: Authorized Signatory
ARBOR NATIONAL CJ II, LLC
By: /s/ Alissa M. Omelas
--------------------------
Name: Alissa M. Omelas
Title: Authorized Signatory
Acknowledged and Accepted by:
ARBOR REALTY LIMITED PARTNERSHIP
By: ARBOR REALTY GPOP, INC.,
its General Partner
By: /s/ Frederick C. Herbst
--------------------------
Name: Frederick C. Herbst
Title: Treasurer and Secretary
ANMB HOLDINGS, LLC
By: ARBOR REALTY LIMITED PARTNERSHIP,
its sole member
By: ARBOR REALTY GPOP, INC.,
its General Partner
By: /s/ Frederick C. Herbst
-------------------------------
Name: Frederick C. Herbst
Title: Treasurer and Secretary
ANMB HOLDINGS II, LLC
By: ARBOR REALTY LIMITED PARTNERSHIP,
its sole member
By: ARBOR REALTY GPOP, INC.,
its General Partner
By: /s/ Frederick C. Herbst
--------------------------------
Name: Frederick C. Herbst
Title: Treasurer and Secretary