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Exhibit 10.217
LOAN GUARANTY AGREEMENT
(SECURED NOTE)
THIS LOAN GUARANTY AGREEMENT (the "Guaranty Agreement"), is made as of
the 30th day of June, 2004, by Ronald Akel, George Akel II, Ferris Akel II,
Barry Newman, Marc Newman and David Newman (collectively, "Guarantors") to IWEST
GILROY, L.L.C., a Delaware limited liability company (referred to herein as
"Lender").
W I T N E S S E T H:
WHEREAS, Guarantors have requested from Lender a loan in the principal
amount of TWENTY-TWO MILLION AND NO/100 DOLLARS ($22,000,000.00) (the "Loan")
for the purpose of providing financing for the acquisition of that certain real
estate located in the County of Santa Clara, State of California, described on
Exhibit A attached hereto and made a part hereof (the "Property") commonly known
as Pacheco Pass Shopping Center, intersection of Camino Arroyo and State Highway
152, Gilroy, California and it will be of substantial economic benefit to the
Guarantors for the Borrower, hereinafter defined, to issue the Note and borrow
the principal evidenced thereby, Guarantors expecting to receive, directly or
indirectly, economic benefit from Borrower's acquisition, rehabilitation and
management of the Property; and
WHEREAS, the Loan is to be evidenced by that certain Installment Note of
even date herewith (the "Note") in the principal amount of TWENTY-TWO MILLION
AND NO/100 DOLLARS ($22,000,000.00); the Note is to be executed by NEWMAN
DEVELOPMENT GROUP OF GILROY, L.L.C., a California limited liability company
("Borrower") and is payable to the order of Lender and is to be secured, inter
alia, by that certain First Deed of Trust and Security Agreement (the
"Mortgage") from Borrower to Lender, as Beneficiary, which will encumber the
Property and by other documents, (the Note, the Mortgage and such other
documents, as the same may from time to time be amended, being collectively
referred to herein as the "Loan Documents"); and
WHEREAS, Lender is willing to extend the Loan only on the condition that
Guarantors, irrevocably and unconditionally, fully guarantee to Lender the full
and prompt payment when due of all principal, interest, default interest, late
charges, fees, premiums and all other sums from time to time outstanding under
the Loan Documents and the performance by Borrower of Borrower's obligations to
duly, promptly and completely observe, perform and discharge each and every
obligation, covenant and agreement contained in the Loan Documents. (All amounts
from time to time outstanding under the Loan Documents, including, without
limitation, principal, interest (whether accruing before or after the
commencement of any bankruptcy case involving Borrower and whether or not
allowed), default interest, late charges, fees, premiums and all other sums from
time to time outstanding under the Loan Documents, are sometimes collectively
referred to herein as the "Indebtedness"); and
WHEREAS, Guarantors are willing to irrevocably and unconditionally, fully
guarantee the Indebtedness.
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NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantors hereby covenant and agree as follows:
1. The recitals set forth above are by this reference incorporated herein.
2. Guarantors hereby irrevocably, absolutely and unconditionally, fully
guarantee to Lender the full and prompt payment when due, whether by
lapse of time, declaration, acceleration or otherwise, and at all times
thereafter, of any and all of the Indebtedness and the prompt payment to
Lender of all costs and expenses (including reasonable attorneys' fees
and disbursements) incurred by Lender in collection of the Indebtedness
or the enforcement of this Guaranty Agreement against Guarantors.
Guarantors agree that if any of the Indebtedness is not paid in
accordance with the terms of the Loan Documents, whether by acceleration
or otherwise, Guarantors shall, upon notice and demand, immediately pay
all of the Indebtedness as if the Indebtedness constituted the direct and
primary obligation of Guarantors. Notwithstanding the satisfaction by
Guarantors of any liability hereunder, Guarantors shall not have any
right of subrogation, reimbursement or indemnity whatsoever or any right
of recourse to or with respect to the assets or property of Borrower or
to any collateral for the Loan unless and until Lender has received full
payment of all principal, interest and other sums payable under the Loan.
Guarantors hereby acknowledge that the deferment contained in the
preceding sentence (the "Deferment Waiver") is given as an inducement to
Lender to enter into the Loan Documents and, in consideration of Lender's
willingness to enter into the Loan Documents. Guarantors understand and
acknowledge that by virtue of this Guaranty it has specifically assumed
any and all risks of a bankruptcy or reorganization case or proceeding
affecting Borrower, and, as an example and not by way of limitation, a
subsequent modification of the Note or any of the other Loan Documents in
any reorganization case concerning Borrower shall not affect the
obligations of Guarantors hereunder. Guarantors agree that to the extent
that Borrower makes a payment or payments to Lender, which payment or
payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required, for any of the
foregoing reasons or for any other reasons, to be repaid or paid over to
a custodian, trustee, receiver or any other party under any bankruptcy
act, state or federal law, common law or equitable cause, then to the
extent of such payment or repayment, the obligation or part thereof
intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made and Guarantors shall be
primarily liable for this obligation.
3. This Guaranty Agreement shall be in full force and effect continuously
from the date hereof to and until the date (the "Termination Date") on
which the Note is repaid in full and any continuing liability of
Guarantors pursuant to Paragraphs 6 and 30 of this Guaranty Agreement has
been satisfied, whereupon this Guaranty Agreement shall terminate.
4. Guarantors grant Lender, in Lender's sole and absolute discretion and
without notice to Guarantors, the power and authority to deal in any
lawful manner with the Indebtedness
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and, without limiting the generality of the foregoing, further power and
authority, from time to time:
(a) to renew, compromise, extend, accelerate or otherwise change the
time or place of payment of or to otherwise change the terms of the
Indebtedness or of any document relating thereto;
(b) to modify or to waive any of the terms of any agreement with
Borrower pertaining to the Indebtedness;
(c) to take and hold security for the payment of the Indebtedness, and
to exchange, enforce, waive or release any such security;
(d) to direct the order or manner of sale of any such security as
Lender in its discretion may determine; and/or
(e) to grant any indulgence, forbearance, waiver or release to
Borrower. The liability of Guarantors shall not be terminated,
affected, impaired or reduced in any way by any action taken by
Lender under the foregoing provisions or any other provision hereof
or by any delay, failure or refusal of Lender to exercise any right
or remedy Lender may have against Borrower or any other person,
including other guarantors, if any, liable for all or any part of
the obligations guaranteed herein by Guarantors.
5. Guarantors shall not have any right of recourse against Lender by reason
of any action Lender may take or omit to take under the provisions of
this Guaranty Agreement or under the provisions of any of the Loan
Documents.
6. Satisfaction by Guarantors of any liability hereunder incident to a
particular default under the Note or under any of the other Loan
Documents shall not discharge Guarantors except for the default
satisfied, it being the intent hereof that this Guaranty Agreement and
the obligations of Guarantors hereunder shall be continuing and
irrevocable until the Termination Date. Further, if at any time all or
any part of any payment received by Lender from Borrower or from
Guarantors under or with respect to this Guaranty Agreement is or must be
rescinded or returned for any reason whatsoever (including, but not
limited to, the insolvency, bankruptcy or reorganization of Borrower or
Guarantors), then Guarantors' obligations hereunder shall, to the extent
of the payment rescinded or returned, be deemed to have continued in
existence, notwithstanding such previous receipt of payment by Lender,
and each Guarantor's obligations hereunder shall continue to be effective
or be reinstated, as the case may be, as to such payment, all as though
such previous payment to Lender had never been made.
7. Guarantors hereby waive notice of acceptance of this Guaranty Agreement
by Lender, and this Guaranty Agreement shall immediately be binding upon
each Guarantor.
8. To the extent permitted by law, each Guarantor hereby waives and agrees
not to assert or take advantage of; (a) any right to require Lender to
proceed against Borrower or any other person or to proceed against or
exhaust any security held by Lender at any time or
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to pursue any other remedy in Lender's power before proceeding against
Guarantors hereunder; (b) the defense of the statute of limitations in
any action hereunder or in any action for the collection of the
Indebtedness or the performance of any obligation hereby guaranteed; (c)
any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other person or persons or the
failure of Lender to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any other person
or persons; (d) demand, presentment for payment, notice of non-payment,
protest, notice of protest and all other notices of any kind, including,
without limiting the generality of the foregoing, notice of the
existence, creation or incurring of any new or additional indebtedness or
obligation or of any action or non-action on the part of Borrower,
Lender, any endorser or creditor of Borrower or of Guarantors or of other
guarantors or on the part of any other person whomsoever under this or
any other instrument in connection with any obligation or evidence of
indebtedness held by Lender as collateral or in connection with the
Indebtedness hereby guaranteed; (e) any defense based upon an election of
remedies by Lender which destroys or otherwise impairs any or all of the
subrogation rights, if any, of any Guarantor, the right of any Guarantor
to proceed against Borrower or any other person for reimbursement, or
both; (f) all duty or obligation on Lender's part to perfect, protect,
retain or enforce any security for the payment of the Indebtedness; (g)
any principle or provision of law, statutory or otherwise, which is or
might be in conflict with the terms and provisions of this Guaranty
Agreement; and (h) any duty on the part of Lender to disclose to any
Guarantor any facts Lender may now or hereafter know about Borrower,
regardless of whether or not Lender has reason to believe that any such
facts materially increase the risk beyond that which any Guarantor
intends to assume or has reason to believe that such facts are unknown to
such Guarantor or has a reasonable opportunity to communicate such facts
to such Guarantor, it being understood and agreed that each Guarantor is
fully responsible for being and keeping informed of the financial
condition of Borrower and of any and all circumstances bearing on the
risk that liability may be incurred by each Guarantor hereunder. Without
limiting the generality of the foregoing, each Guarantor hereby
authorizes and empowers Lender in its sole discretion, without any notice
or demand to any Guarantor whatsoever and without affecting the liability
of any Guarantor hereunder, to exercise any right or remedy which Lender
may have available to it, including, but not limited to, judicial
foreclosure, exercise of rights or power of sale without judicial action,
or taking a deed or an assignment in lieu of foreclosure as to any
collateral security for the Indebtedness, whether real, personal or
intangible property, and each Guarantor hereby waives any defense to the
recovery by Lender against any and all Guarantors of any deficiency after
such action, notwithstanding any impairment or loss of any right of
deficiency or other right or remedy against Borrower. Each Guarantor
specifically waives all rights and defenses arising out of an election of
remedies by Lender, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed such Guarantor's rights of subrogation and
reimbursement against Borrower. Without limiting the generality, scope or
meaning of any of the foregoing or any other provision of this Guaranty
Agreement, to the extent it is determined that California law is
applicable to this Guaranty Agreement, Guarantors:
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(a) acknowledge that Section 2856 of the California Civil Code
authorizes and validates waivers of a guarantor's rights of
subrogation and reimbursement and certain other right and defenses
available to guarantors under California law;
(b) waive all rights of subrogation, reimbursement, indemnification,
and contribution and all other rights and defenses that are or may
become available by reason of Sections 2728 to 2855, inclusive, of
the California Civil Code;
(c) waive all rights and defenses arising out of an election of
remedies by Lender, even though the election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed
obligation has destroyed each Guarantor's rights of subrogation and
reimbursement against Borrower by the operation of Section 580d of
the California Code of Civil Procedure or otherwise;
(d) waive all rights and defenses that Guarantors may have because the
Borrower's debt is secured by real property, which means, among
other things:
(i) Lender may collect from Guarantors without first foreclosing
on any real or personal property collateral pledged by
Borrower; and
(ii) If Lender forecloses on any real property collateral pledged
by Borrower;
A. The amount of the debt may be reduced only by the
price for which that collateral is sold at the
foreclosure sale, even if the collateral is worth more
than the sale price; and
B. Lender may collect from Guarantors even if Lender, by
foreclosing on the real property collateral, has
destroyed any rights Guarantors may have to collect
from Borrower.
This is an unconditional and irrevocable waiver of any rights and
defenses Guarantors may have because Borrower's debt is secured by real
property. These rights and defenses include, but are not limited to, any rights
or defenses based upon Sections 580a, 580b, 580d, or 726 of the California Code
of Civil Procedure; and
(e) waive all rights and defenses, if any, now or hereafter arising
under the laws of the State of Illinois, which are the same as or
similar to the rights and defenses waived as described above.
9. In addition to all liens and rights of setoff given to Lender by law
against any property of Borrower or of Guarantors, Lender shall have a
general lien on and security interest in and a right of setoff against
all property of each Guarantor now or hereafter in the physical
possession of or on deposit with Lender, whether held in a general or
special account, on deposit or for safekeeping or otherwise. Each such
lien, security interest and right of setoff may be enforced or exercised
without demand upon or notice to any Guarantor at any time following the
failure of performance by any Guarantor hereunder, shall continue in full
force unless specifically waived or released by Lender in writing and
shall not be deemed waived by any conduct of Lender, by any failure of
Lender to
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exercise any such right of setoff or to enforce any such lien or security
interest or by any neglect or delay in so doing.
10. With or without notice to any Guarantor, Lender, in Lender's sole
discretion and at any time and from time to time and in such manner and
upon such terms as Lender deems fit, may: (a) apply any or all payments
or recoveries from Borrower or from any other guarantor or endorser under
any other instrument or realized from any security, in such manner and
order of priority as set forth in the Note; or (b) refund to Borrower any
payment received by Lender upon the Indebtedness hereby guaranteed
without affecting in any way any Guarantor's obligation or liability
hereunder for payment of the Indebtedness. Any recovery realized from any
other guarantor under any other instrument shall be first credited upon
that portion of the Indebtedness which exceeds the maximum liability of
Guarantors, if any, hereunder.
11. The amount of Guarantors' liability and all rights, powers and remedies
of Lender hereunder shall be cumulative and not alternative and such
rights, powers and remedies shall be in addition to all rights, powers
and remedies given to Lender by law or under the Loan Documents. This
Guaranty Agreement is in addition to and separate and apart from the
guaranty of any other guarantor of the Indebtedness or of any other
indebtedness or obligation.
12. The liability of each Guarantor under this Guaranty Agreement shall be an
absolute, direct, immediate and unconditional guarantee of payment and
not of collectibility. The obligations of each Guarantor hereunder are
independent of the obligations of Borrower and, in the event of any
default hereunder, a separate action or actions may be brought and
prosecuted against each Guarantor whether or not Borrower is joined
therein or a separate action or actions are brought against Borrower.
Lender may maintain successive actions for other defaults. Lender's
rights hereunder shall not be exhausted by its exercise of any of its
rights or remedies or by any such action or by any number of successive
actions. The obligations of each Guarantor hereunder are joint and
several obligations and Lender may maintain a separate action or actions
against each, prosecute an action or actions against either or any of
them without prosecuting an action or actions against the other or may
prosecute an action or actions jointly against all persons and entities.
The death or dissolution of any Guarantor shall not terminate this
Guaranty Agreement as to any surviving Guarantor, and shall not terminate
this Guaranty Agreement as to the estate of any deceased Guarantor.
13. In the event of the dissolution, liquidation or insolvency (howsoever
evidenced) of, or the institution of bankruptcy or receivership
proceedings against or by the Borrower, or its beneficiary(ies), if any,
or the inability of the Borrower or the beneficiary(ies) to pay debts as
they mature, Guarantors shall pay to Lender upon demand, the full amount
which would be payable hereunder by the Guarantors as if all Indebtedness
were then due and payable without regard as to whether or not any such
events shall occur at a time when any of the Indebtedness may not then be
due and payable.
14. Notwithstanding the fact that Borrower may be a trust, a corporation, a
limited liability company, a joint venture or a partnership, Lender does
not have to confirm or inquire into
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the powers of Borrower, its beneficiary(ies), its directors, officers,
members, joint venturers, partners, associates or other agents acting or
purporting to act on its behalf, Guarantors hereby representing that such
powers exist, and monies in fact borrowed from Lender in connection with
the Loan in the professed exercise of such powers shall be deemed to form
a part of the liabilities guaranteed, even though the borrowing or
obtaining of such monies is in excess of the powers of Borrower or of the
beneficiary(ies), directors, officers, joint venturers, partners,
associates or other agents thereof, or shall be in any way irregular or
defective or informal.
15. It is expressly understood that the obligations of Guarantors hereunder
are an additional and cumulative benefit given to Lender for Lender's
security and as an inducement for Lender to make the Loan and in order to
induce any person or persons who may be and become the holder of the Note
to accept the same.
16. All payments hereunder shall be made in lawful money of the United States
of America. No delay in making demand on any Guarantor for satisfaction
of its liabilities hereunder shall prejudice Lender's rights to enforce
such liabilities.
17. Guarantors hereby warrant and represent unto Lender that any and all
balance sheets, net worth statements and other financial data which have
heretofore been given or may hereafter be given to Lender with respect to
each Guarantor, if any, did or will at the time of such delivery fairly
and accurately present the financial condition of such Guarantor.
18. Guarantors shall pay to Lender, upon demand, reasonable attorneys' fees
and disbursements and all costs and other expenses which Lender expends
or incurs in collecting or compromising the Indebtedness or in enforcing
this Guaranty Agreement against Guarantors whether or not suit is filed,
including, without limitation, all costs, reasonable attorneys' fees and
expenses incurred by Lender in connection with any insolvency,
bankruptcy, reorganization, arrangement or other similar proceedings
involving Borrower or Guarantors which in any way affect the exercise by
Lender of its rights and remedies hereunder from the fifth day after
written notice to Guarantors until paid to Lender, such reasonable
attorneys' fees, costs and expenses shall bear interest at the default
rate of interest described in the Note.
19. Any provision of this Guaranty Agreement which is unenforceable, invalid
or contrary to law, or the inclusion of which would affect the validity,
legality or enforcement of this Guaranty Agreement shall be of no effect,
and in such case, all the remaining terms and provisions of this Guaranty
Agreement shall subsist and shall be fully effective according to the
terms of this Guaranty Agreement, the same as though any such provision
had not been included herein.
20. No provision of this Guaranty Agreement or right of Lender hereunder can
be waived nor can any Guarantor be released from such Guarantor's
obligations hereunder except by a writing duly executed by Lender. This
Guaranty Agreement may not be modified, amended, revised, revoked,
terminated, changed or varied in any way whatsoever except by the express
terms of a writing duly executed by Lender and the Guarantors to whom
such modification, amendment, revision, revocation or termination may
apply.
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21. When the context and construction so require, all words used in the
singular herein shall be deemed to have been used in the plural, and the
masculine shall include the feminine and neuter and vice versa. The word
"person" as used herein shall include any individual, company, firm,
association, partnership, corporation, trust or other legal entity of any
kind whatsoever.
22. This Guaranty Agreement is a general guaranty agreement and is assignable
with any and/or all of the Indebtedness which it guarantees and when so
assigned, each Guarantor shall be bound as above to the assignee(s)
without in any manner affecting such Guarantor's liability hereunder. The
delivery of the Note for value to any person shall, without more,
constitute conclusive evidence of the acceptance hereof, and of the
reliance hereon by each and every holder, from time to time, of the Note
or any interest in the Indebtedness.
23. The validity of this Guaranty Agreement and the obligations of each
Guarantor hereunder shall in no way be terminated, affected, impaired or
reduced by reason of the conveyance, transfer, sale, assignment, exchange
or lease of the Property, or any part thereof or any interest therein
including the beneficial interest in any land trust, to any other person
or by reason of the further encumbrancing of the Property or any part
thereof (it being strictly understood, however, that the provisions of
this paragraph are not deemed to be a waiver of any restrictions of such
acts contained in the Loan Documents, or to constitute consent to any
such acts).
24. This Guaranty Agreement, and each and every part hereof, shall be binding
upon each Guarantor, jointly and severally, and upon the heirs,
administrators, legal representatives, successors and assigns of each of
the Guarantors, and shall inure to the pro rata benefit of each and every
future holder of the Note or any interest in the Indebtedness.
25. This Guaranty Agreement has been made and delivered by the undersigned in
the State of Illinois and shall be construed for all purposes and
enforced in accordance with the laws of the State of Illinois and the
accrual of any claim hereunder in favor of Lender shall be deemed to have
caused an event to occur in the State of Illinois, notwithstanding any
references herein to California law. Without limiting the right of the
Lender to bring any action or proceeding against the undersigned or
against property of the undersigned arising out of or relating to this
Guaranty Agreement (an "Action") in the courts of other jurisdictions,
the undersigned hereby irrevocably submit to the jurisdiction of (i) any
Illinois state court sitting in Cook or DuPage County, Illinois, or
Federal court sitting in Chicago, Illinois, or (ii) any California state
court sitting in San Mateo, County, California or federal court for the
Northern District of California, and the undersigned hereby irrevocably
agree that any Action may be heard and determined in such state courts or
in such Federal courts. The undersigned hereby irrevocably waive any
rights it may have to assert that such Illinois state courts or federal
court in Illinois provide either an improper or inconvenient venue. The
undersigned hereby irrevocably waive, to the fullest extent possible, the
defense or assertion of any inconvenient forum to the maintenance of any
Action in any jurisdiction. The undersigned hereby irrevocably agrees
that the summons and complaint or any process in any Action in any
jurisdiction may be served on the undersigned by mailing by certified
mail, return receipt requested,
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to the address of the undersigned set forth herein or by hand delivery to
a person of suitable age and discretion at the undersigned's address set
forth herein. If such service is so mailed or delivered, it will be
deemed complete on the date the return receipt is executed, or, if no
such receipt is executed, three (3) days after the date of mailing as
aforesaid, or when delivered, and the undersigned will have thirty days
from such completion of service in which to respond in the manner
provided by law. The undersigned may also be served in any other manner
permitted by law, in which event the undersigned's time to respond shall
be the time provided by law. THE UNDERSIGNED HEREBY IRREVOCABLY WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS GUARANTY AGREEMENT.
26. Any notice request or demand to be given hereunder shall be in writing,
and shall be deemed to have been given when placed in the United States
mail, with proper registered or certified postage prepaid, return receipt
requested, addressed to the party concerned at the address shown below
and shall be effective the date of mailing:
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To Lender: To Guarantors:
IWEST GILROY, L.L.C. c/o NEWMAN DEVELOPMENT GROUP
2901 Butterfield Road OF GILROY, L.L.C.
Oak Brook, Illinois 60523 Plymouth Greene Office Campus, Unit E-2
Attn: Jason Lazarus 1000 Germantown Pike
Plymouth Meeting, Pennsylvania 19462
with a copy to: with a copy to:
IWEST GILROY, L.L.C. NEWMAN DEVELOPMENT GROUP
2901 Butterfield Road OF GILROY, L.L.C.
Oak Brook, Illinois 60523 3101 Shippers Road
Attn: Charles J. Benyenuto, Esq. Vestal, New York 13850
Attn: Marc Newman
</Table>
provided however, that each of the foregoing addresses for notice may be changed
from time to time by notice given to the other party, in the manner herein
provided for.
27. This Guaranty Agreement shall constitute the entire agreement of
Guarantor with Lender with respect to the subject matter hereof and no
representation, understanding, promise or condition concerning the
subject matter hereof shall be binding upon Lender unless expressed
herein.
28. Any non-recourse provisions contained in the Loan Documents are in no
event to be construed as inconsistent with or contrary to the terms and
provisions of this Guaranty Agreement and in the event of any
inconsistency between said non-recourse provisions and the provisions of
this Guaranty Agreement, the provisions of this Guaranty Agreement shall
control.
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29. Guarantor hereby waives all rights of subrogation, indemnity,
contribution, exoneration, reimbursement or other claim which such
Guarantor now or may hereafter have or claim against Borrower or any
other person liable in any way with respect to the Indebtedness until the
date which is one (1) year and one (1) day from the date the Loan is paid
in full.
30. Subject to all of the other terms and provisions of this Guaranty
Agreement, in the event of default by Borrower under the Loan Documents
and the institution of foreclosure proceedings and/or security
enforcement proceedings by Lender pursuant to the Loan Documents as a
result of that default, each Guarantor shall continue to be liable to
Lender for the payment to Lender of the amount, if any, by which the
Indebtedness at the time of the foreclosure or security enforcement sale
by Lender shall exceed the actual net cash received by Lender from any
party in connection with such foreclosure or security enforcement sale.
The preceding sentence shall not in any event be construed to require
Lender to refund to any Guarantor any amounts which were paid by
Guarantor pursuant to this Guaranty Agreement prior to the acceleration
of the Indebtedness and which were properly due and payable by Guarantors
at the time said payments were made.
31. The obligations and liabilities of each Guarantor hereunder shall be
joint and several.
32. This Guaranty Agreement may be executed in multiple counterparts, each of
which shall be deemed an original and all of which shall constitute one
and the same instrument. Failure of any Guarantor to execute this
Agreement shall not make this Agreement ineffective as to the other
Guarantors.
[END OF TEXT, SIGNATURES NEXT PAGE]
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IN WITNESS WHEREOF, each Guarantor has executed this Agreement as of the
day and year first above written in the presence of the Notary Public who has
acknowledged its signature(s) as more fully set forth below.
/s/ Ronald Akel
-----------------------------------
Ronald Akel
/s/ George Akel II
-----------------------------------
George Akel II
/s/ Ferris Akel II
-----------------------------------
Ferris Akel II
/s/ Barry Newman
-----------------------------------
Barry Newman
/s/ Marc Newman
-----------------------------------
Marc Newman
/s/ David Newman
-----------------------------------
David Newman
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STATE OF New York )
) SS
COUNTY OF Broome )
On June 29, 2004, before me, Howard M. Rittberg
(NAME, TITLE OF OFFICER, E.G., "JANE DOE, NOTARY PUBLIC")
personally appeared Ronald Akel
(NAME(S) OF SIGNER(S))
/X/ personally known to me -OR-
/ / proved to me on the basis of satisfactory evidence
to be the person(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
authorized capacity/ies, and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which person(s) acted,
executed the instrument.
Witness my hand and official seal.
/s/ Howard M. Rittberg
-----------------------------
(Signature of Notary)
(SEAL)
My Commission expires:
HOWARD M. RITTBERG
- -------------------------------------
Notary Public, State of New York
No. 4623413
Residing in Broome County
My Commission Expires Aug. 31, 2007
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STATE OF New York )
) SS
COUNTY OF Broome )
On June 29, 2004, before me, Howard M. Rittberg
(NAME, TITLE OF OFFICER, E.G., "JANE DOE, NOTARY PUBLIC")
personally appeared George Akel II
(NAME(S) OF SIGNER(S))
/X/ personally known to me -OR-
/ / proved to me on the basis of satisfactory evidence
to be the person(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
authorized capacity/ies, and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which person(s) acted,
executed the instrument.
Witness my hand and official seal.
/s/ Howard M. Rittberg
-----------------------------
(Signature of Notary)
(SEAL)
My Commission expires:
HOWARD M. RITTBERG
- -------------------------------------
Notary Public, State of New York
No. 4623413
Residing in Broome County
My Commission Expires Aug. 31, 2007
<Page>
STATE OF New York )
) SS
COUNTY OF Broome )
On June 29, 2004, before me, Howard M. Rittberg
(NAME, TITLE OF OFFICER, E.G., "JANE DOE, NOTARY PUBLIC")
personally appeared Ferris Akel II
(NAME(S) OF SIGNER(S))
/X/ personally known to me -OR-
/ / proved to me on the basis of satisfactory evidence
to be the person(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
authorized capacity/ies, and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which person(s) acted,
executed the instrument.
Witness my hand and official seal.
/s/ Howard M. Rittberg
-----------------------------
(Signature of Notary)
(SEAL)
My Commission expires:
HOWARD M. RITTBERG
- -------------------------------------
Notary Public, State of New York
No. 4623413
Residing in Broome County
My Commission Expires Aug. 31, 2007
<Page>
STATE OF New York )
) SS
COUNTY OF Broome )
On June 29, 2004, before me, Howard M. Rittberg
(NAME, TITLE OF OFFICER, E.G., "JANE DOE, NOTARY PUBLIC")
personally appeared Barry Newman
(NAME(S) OF SIGNER(S))
/X/ personally known to me -OR-
/ / proved to me on the basis of satisfactory evidence
to be the person(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
authorized capacity/ies, and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which person(s) acted,
executed the instrument.
Witness my hand and official seal.
/s/ Howard M. Rittberg
-----------------------------
(Signature of Notary)
(SEAL)
My Commission expires:
HOWARD M. RITTBERG
- -------------------------------------
Notary Public, State of New York
No. 4623413
Residing in Broome County
My Commission Expires Aug. 31, 2007
<Page>
STATE OF New York )
) SS
COUNTY OF Broome )
On June 29, 2004, before me, Howard M. Rittberg
(NAME, TITLE OF OFFICER, E.G., "JANE DOE, NOTARY PUBLIC")
personally appeared David Newman
(NAME(S) OF SIGNER(S))
/X/ personally known to me -OR-
/ / proved to me on the basis of satisfactory evidence
to be the person(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
authorized capacity/ies, and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which person(s) acted,
executed the instrument.
Witness my hand and official seal.
/s/ Howard M. Rittberg
-----------------------------
(Signature of Notary)
(SEAL)
My Commission expires:
HOWARD M. RITTBERG
- -------------------------------------
Notary Public, State of New York
No. 4623413
Residing in Broome County
My Commission Expires Aug. 31, 2007
<Page>
STATE OF New York )
) SS
COUNTY OF Broome )
On June 29, 2004, before me, Howard M. Rittberg
(NAME, TITLE OF OFFICER, E.G., "JANE DOE, NOTARY PUBLIC")
personally appeared Marc Newman
(NAME(S) OF SIGNER(S))
/X/ personally known to me -OR-
/ / proved to me on the basis of satisfactory evidence
to be the person(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
authorized capacity/ies, and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which person(s) acted,
executed the instrument.
Witness my hand and official seal.
/s/ Howard M. Rittberg
-----------------------------
(Signature of Notary)
(SEAL)
My Commission expires:
HOWARD M. RITTBERG
- -------------------------------------
Notary Public, State of New York
No. 4623413
Residing in Broome County
My Commission Expires Aug. 31, 2007
<Page>
EXHIBIT A
LEGAL DESCRIPTION
The land refereed to herein is situated in the City of Gilroy, County of Santa
Clara, State of California, and is described as follows:
Parcel A:
Lots 2, 4, and 5, as shown on that certain map entitled "Tract No. 9401, Highway
152 Retail Center, Gilroy, California" filed for record in the office of the
Recorder for the County of Santa Clara, State of California on August 16, 2002
in Book 751 of Maps, pages 10, 11, 12, 13, 14, and 15, Santa Clara County
Records.
Parcel B:
A non-exclusive easement for ingress and egress over Lots 1 and 3 as shown on
that certain map entitled "Tract No. 9401, Highway 152 Retail Center, Gilroy,
California" filed for record in the office of the Recorder for the County of
Santa Clara, State of California on August 16, 2002 in Book 751 of Maps, pages
10, 11, 12, 13, 14, and 15, Santa Clara County Records.
Parcel C:
A non-exclusive non-buildable structure easement over Lot 1 as shown on that
certain map entitled "Tract No. 9401, Highway 152 Retail Center, Gilroy,
California" filed for record in the office of the Recorder for the County of
Santa Clara, State of California on August 16, 2002 in Book 751 of Maps, pages
10, 11, 12, 13, 14 and 15, Santa Clara County Records.
Parcel D:
Easements granted in that certain document entitled "Declaration of Covenants,
Conditions and Restrictions and Grant of Reciprocal Easements" recorded August
16, 2002 as Instrument No. 16425383 of Official Records.
Parcel E:
Parcels 1, 2, and 3 as shown on that certain Parcel map entitled "PARCEL MAP,
Southwest quadrant of the Pacheco Pass retail center, City of Gilroy...", filed
for record in the office of the Recorder for the County of Santa Clara, State of
California on June 25, 2002 in Book 761 of Maps, pages 52 and 53, Santa Clara
County Records.
APN: 841-10-060; 841-18-059; 841-18-061; 841-18-062; 841-18-063; 841-18-064:
841-18-065; & 841-18-066