GUARANTY DEFINED TERMS
Exhibit
99.7
DEFINED
TERMS
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Execution
Date: August
31, 2007
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Loan: A
first mortgage loan in the aggregate principal amount of $97,500,000.00
consisting of (i) a $72,500,000.00 loan (the “MetLife Loan”) from
Metropolitan Life Insurance Company, a New York corporation (“MetLife”),
to Borrower, and (ii) a $25,000,000.00 loan (the “MetLife Bank Loan”) from
MetLife Bank, N.A., a national banking association (“MetLife Bank”) to
Borrower.
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Borrower: New
Aventine, L.L.C., a Delaware limited liability company
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▇▇▇▇▇▇▇▇’s
Address:
Before
September 15, ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇, ▇.▇.▇.
c/o
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
And
After September 15, ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇, ▇.▇.▇.
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
in
each case with a copy to:
▇▇▇▇▇▇▇
Coie LLP
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Lender: Collectively,
Metropolitan Life Insurance Company, a New York corporation and MetLife
Bank N.A., a national banking association
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▇▇▇▇▇▇’s
Address:
MetLife
and MetLife Bank
c/o
Metropolitan Life Insurance Company
▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior
Vice President, Real Estate Investments
and
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Metropolitan
Life Insurance Company
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Regional
Director
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Guarantor: SHC
Aventine II, L.L.C., a Delaware limited liability company
Addresses
of Guarantor:
Before
September 15, 2007
SHC
Aventine II, L.L.C.,
c/o
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
And
After September 15, 2007
SHC
Aventine II, L.L.C.,
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
in
each case with a copy to:
▇▇▇▇▇▇▇
Coie LLP
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Note: Collectively,
(i) a Promissory Note executed by ▇▇▇▇▇▇▇▇ in favor of MetLife in the
amount of the MetLife Loan, and (ii) a Promissory Note executed by
Borrower in favor of MetLife Bank in the amount of the MetLife Bank
Loan.
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Deed
of Trust: A Deed of Trust, Security Agreement and
Fixture Filing dated as of the Execution Date executed by ▇▇▇▇▇▇▇▇,
to
First American Title Insurance Company as Trustee, for the benefit
of
Lender securing repayment of the Note. The Deed of Trust will be
recorded
in the records of the County in which the Property is
located.
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This
Guaranty (the “Agreement”) is entered into as
of the Execution Date by Guarantor in favor of ▇▇▇▇▇▇, with reference to the
following facts:
▇. ▇▇▇▇▇▇
has loaned or will loan to Borrower the Loan. Payment of the Note is
secured by the Deed of Trust. The Deed of Trust encumbers the real
property more particularly described in Exhibit A to
this Guaranty and other property referred to in the Deed of Trust and this
Guaranty as the “Property.”
B. As
a condition to making the Loan, Lender requires Guarantor to irrevocably and
unconditionally guarantee the full and prompt payment and performance of the
Guaranteed Obligations (as defined below) to Lender and its successors and
assigns.
▇. ▇▇▇▇▇▇▇▇▇
acknowledge and understand that this Guaranty is a material inducement for
▇▇▇▇▇▇’s agreement to make the Loan.
A
G R E E M E N T
NOW,
THEREFORE, in consideration of the foregoing, and in order to induce Lender
to
make the Loan to Borrower, Guarantor hereby agrees, in favor of ▇▇▇▇▇▇, as
follows:
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1.
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Definitions
and Construction.
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(a) Definitions. The
following terms, as used in this Guaranty, shall have the following
meanings:
“Bankruptcy
Code” means the Bankruptcy Reform Act of 1978 (11 U.S.C.), as amended
or supplemented from time to time, and any successor statute, and any and all
rules issued or promulgated in connection therewith.
“Guaranteed
Obligations” means any and all obligations, indebtedness, or liabilities of
any kind or character owed by Borrower to Lender under Section 11 of the Note
and Article IX of the Deed of Trust to the extent expressly set forth in
the provisions of Section 11 of the Note or Article IX of the Deed of Trust,
including interest accruing following the filing of a bankruptcy petition by
or
against the Borrower, at the rate specified in the Note, whether or not such
interest is allowed as a claim in bankruptcy plus all costs, including, without
limitation, all reasonable attorney’s fees and expenses incurred by Lender in
connection with collection of the Guaranteed Obligations.
“Loan
Documents” shall have the same meaning as in the Deed of Trust.
(b) Construction. Unless
the context of this Guaranty clearly requires otherwise, references to the
plural include the singular, references to the singular include the plural,
and
the term “including” is not limiting. The words “hereof,” “herein,”
“hereby,” “hereunder,” and other similar terms refer to this Guaranty as a whole
and not to any particular provision of this Guaranty. Any reference
herein to any of the Loan Documents includes any and all alterations,
amendments, extensions, modifications, renewals, or supplements thereto or
thereof, as applicable. Neither this Guaranty nor any uncertainty or
ambiguity herein shall be construed or resolved against Lender or Guarantor,
whether under any rule of construction or otherwise. This Guaranty
has been reviewed by Guarantor, Lender, and their respective counsel, and shall
be construed and interpreted so as to fairly accomplish the purposes and
intentions of ▇▇▇▇▇▇ and Guarantor.
2. Guaranteed
Obligations. Guarantor hereby irrevocably and unconditionally
guarantees to Lender, until final and indefeasible payment thereof has been
made, payment of the Guaranteed Obligations, in each case when and as the same
shall become due and payable, it being the intent of Guarantor that the guaranty
set forth herein shall be a guaranty of payment and not a guaranty of
collection.
3. Performance
Under This Guaranty. In the event that Borrower fails to make any
payment of any Guaranteed Obligations on or before the due date thereof,
Guarantor immediately shall cause such payment to be made.
4. Primary
Obligations. This Guaranty is a primary and original obligation
of Guarantor, is not merely the creation of a surety relationship, and is an
absolute and unconditional guaranty of payment and performance of the Guaranteed
Obligations which shall remain in full force and effect without respect to
future changes in conditions, including any change of law or any invalidity
or
irregularity with respect to the issuance of the Loan
Documents. Guarantor agrees that it is directly, jointly and
severally with any and all other guarantors of the Guaranteed Obligations,
liable to Lender, that the obligations of Guarantor hereunder are independent
of
the obligations of Borrower or any other guarantor, and that a separate action
may be brought against each person signing as Guarantor whether such action
is
brought against Borrower or any other guarantor or whether Borrower or any
such
other guarantor is joined in such action. Guarantor agrees that its
liability hereunder shall be immediate and shall not be contingent upon the
exercise or enforcement by Lender of whatever remedies it may have against
Borrower or any other guarantor, or the enforcement of any lien or realization
upon any security Lender may at any time possess. Guarantor agrees
that any release which may be given by Lender to Borrower or any other guarantor
shall not release Guarantor. Guarantor consents and agrees that
Lender shall be under no obligation to marshal any assets of Borrower or any
other guarantor in favor of Guarantor, or against or in payment of any or all
of
the Guaranteed Obligations.
5. Waivers.
(a) Guarantor
absolutely, unconditionally, knowingly, and expressly waives:
(i) (A)
Notice of acceptance hereof; (B) notice of any loans or other financial
accommodations made or extended under the Loan Documents or the creation or
existence of any Guaranteed Obligations; (C) notice of the amount of the
Guaranteed Obligations, subject, however, to Guarantor’s right to make inquiry
of Lender to ascertain the amount of the Guaranteed Obligations at any
reasonable time; (D) notice of any adverse change in the financial condition
of
Borrower or of any other fact that might increase Guarantor’s risk hereunder;
(E) notice of presentment for payment, demand, protest, and notice thereof
as to
any promissory notes or other instruments among the Loan Documents;
(F) notice of any event of default under the Loan Documents; and (G) all
other notices (except if such notice is specifically required to be given to
Guarantor hereunder or under any Loan Document to which Guarantor is a party)
and demands to which Guarantor might otherwise be entitled.
(ii) Guarantor’s
right by statute (including, without limitation, its rights under California
Civil Code Sections 2845 or 2850) or otherwise to require Lender to institute
suit against Borrower or to exhaust any rights and remedies which Lender has
or
may have against Borrower or any collateral for the Guaranteed Obligations
provided by Borrower, Guarantor or any third party. In this regard,
▇▇▇▇▇▇▇▇▇ agrees that it is bound to the payment of all Guaranteed Obligations,
whether now existing or hereafter accruing, as fully as if such Guaranteed
Obligations were directly owing to Lender by Guarantor. Guarantor
further waives any defense arising by reason of any disability or other defense
of Borrower or by reason of the cessation from any cause whatsoever of the
liability of Borrower in respect thereof (in each case other than the defense
that the Guaranteed Obligations shall have been fully and finally performed
and
indefeasibly paid).
(iii) (A)
Any rights to assert against Lender any defense (legal or equitable), set-off,
counterclaim, or claim which Guarantor may now or at any time hereafter have
against Borrower or any other party liable to Lender; (B) any defense, set-off,
counterclaim, or claim, of any kind or nature, arising directly or indirectly
from the present or future lack of perfection, sufficiency, validity, or
enforceability of the Guaranteed Obligations or any security therefor; (C)
any
defense Guarantor has to performance hereunder, and any right Guarantor has
to
be exonerated, provided by California Civil Code Sections 2819, 2822, or 2825,
or otherwise, arising by reason of: the impairment or suspension of
▇▇▇▇▇▇’s rights or remedies against Borrower; the alteration by Lender of the
Guaranteed Obligations;
any
discharge of the Guaranteed Obligations by operation of law as a result of
▇▇▇▇▇▇’s intervention or omission; or the acceptance by Lender of
anything in partial satisfaction of the Guaranteed Obligations; (D) the benefit
of any statute of limitations affecting Guarantor’s liability hereunder or the
enforcement thereof, and any act which shall defer or delay the operation of
any
statute of limitations applicable to the Guaranteed Obligations shall similarly
operate to defer or delay the operation of such statute of limitations
applicable to Guarantor’s liability hereunder.
(b) Guarantor
absolutely, unconditionally, irrevocably, knowingly, and expressly waives any
defense Guarantor may have because Borrower’s debt is secured by real property,
including any such defenses arising by reason of or deriving from (i) any
claim or defense based upon an election of remedies by ▇▇▇▇▇▇ including any
defense based upon an election of remedies by Lender under the provisions of
the
California Code of Civil Procedure Sections 580a, 580b, 580d, and 726 or
any similar law of California or any other jurisdiction; or (ii) any
election by Lender under Bankruptcy Code Section 1111(b) to limit the
amount of, or any collateral securing, its claim against Borrower.
(c) Pursuant
to California Civil Code Section 2856:
Guarantor
waives all rights and defenses arising out of an election of remedies by the
creditor, even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for a guaranteed obligation, has destroyed
Guarantor’s rights of subrogation and reimbursement against Borrower by the
operation of California Code of Civil Procedure Section 580(d) or
otherwise.
Guarantor
waives all rights and defenses that Guarantor may have because some of the
Guaranteed Obligations are secured by real property. This means,
among other things:
(1) Lender
may collect from Guarantor without first foreclosing on any real or personal
property collateral pledged by Borrower for the Guaranteed Obligations;
and
(2) If
Lender forecloses on any real property collateral pledged by Borrower for the
Guaranteed Obligations: (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 Guarantor even if Lender, by foreclosing on the real property
collateral pledged by Borrower for the Guaranteed Obligations, has destroyed
any
right Guarantor may have to collect from Borrower. This is an unconditional
and
irrevocable waiver of any rights and defenses Guarantor may have because
▇▇▇▇▇▇▇▇’s debt is secured by real property. These rights and
defenses include, but are not limited to, any rights or defenses based upon
California Code of Civil Procedure Sections 580 (a), 580(b), 580(d) or
726.
(d) If
any of the Guaranteed Obligations at any time are secured by a mortgage or
deed
of trust upon real property, Lender may elect, in its sole discretion, upon
a
default with respect to the Guaranteed Obligations, to foreclose such mortgage
or deed of trust judicially or nonjudicially in any manner permitted by law,
before or after enforcing the Loan Documents, without diminishing or affecting
the liability of Guarantor hereunder except to the extent the Guaranteed
Obligations are repaid with the proceeds of such
foreclosure. Guarantor understands that (a) by virtue of the
operation of California’s antideficiency law applicable to nonjudicial
foreclosures, an election by ▇▇▇▇▇▇ nonjudicially to foreclose such a mortgage
or deed of trust probably would have the effect of impairing or destroying
rights of subrogation, reimbursement, contribution, or indemnity of Guarantor
against Borrower or other guarantors or sureties, and (b) absent the waiver
given by Guarantor, such an election would prevent ▇▇▇▇▇▇ from enforcing the
Loan Documents against Guarantor. Understanding
the
foregoing, and understanding that Guarantor is hereby relinquishing a defense
to
the enforceability of the Loan Documents, Guarantor hereby waives any right
to
assert against Lender any defense to the enforcement of the Loan Documents,
whether denominated “estoppel” or otherwise, based on or arising from an
election by Lender nonjudicially to foreclose any such mortgage or deed of
trust. Guarantor understands that the effect of the foregoing waiver
may be that Guarantor may have liability hereunder for amounts with respect
to
which Guarantor may be left without rights of subrogation, reimbursement,
contribution, or indemnity against Borrower or other guarantors or
sureties. Guarantor also agrees that the “fair market value”
provisions of California Code of Civil Procedure Section 580a shall have no
applicability with respect to the determination of Guarantor’s liability under
the Loan Documents.
(e) Guarantor
hereby absolutely, unconditionally, knowingly, and expressly subordinates to
the
rights of Lender: (i) any right of subrogation Guarantor has or
may have as against Borrower with respect to the Guaranteed Obligations;
(ii) any right to proceed against Borrower or any other person or entity,
now or hereafter, for contribution, indemnity, reimbursement, or any other
suretyship rights and claims, whether direct or indirect, liquidated or
contingent, whether arising under express or implied contract or by operation
of
law, which Guarantor may now have or hereafter have as against Borrower with
respect to the Guaranteed Obligations; and (iii) any right to proceed or
seek recourse against or with respect to any property or asset of
Borrower.
(f) WITHOUT
LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN
THIS
GUARANTY, GUARANTOR HEREBY ABSOLUTELY, KNOWINGLY, UNCONDITIONALLY, AND EXPRESSLY
WAIVES, ANY AND ALL BENEFITS OR DEFENSES ARISING DIRECTLY OR INDIRECTLY UNDER
ANY ONE OR MORE OF CALIFORNIA CIVIL CODE SECTIONS 2787 through 2855, CALIFORNIA
CODE OF CIVIL PROCEDURE SECTIONS 580a, 580b, 580c, 580d, AND 726, AND CHAPTER
2
OF TITLE 14 OF PART 4 OF DIVISION 3 OF THE CALIFORNIA CIVIL CODE AND
CALIFORNIA COMMERCIAL COD SECTIONS 3116, 3118, 3119, 3419, 3605, 9610, 9615,
9617, 9621, 9625, 9626, and 9627.
6. Releases. Guarantor
consents and agrees that, without notice to or by Guarantor and without
affecting or impairing the obligations of Guarantor hereunder, Lender may,
by
action or inaction:
(a) compromise,
settle, extend the duration or the time for the payment of, or discharge the
performance of, or may refuse to or otherwise not enforce this Guaranty, the
other Loan Documents, or any part thereof, with respect to Borrower or any
other
person or entity;
(b) release
Borrower or any other person or entity or grant other indulgences to Borrower
or
any other person or entity in respect thereof;
(c) amend
or modify in any manner and at any time (or from time to time) any of the Loan
Documents; or
(d) release
or substitute any other guarantor, if any, of the Guaranteed Obligations, or
enforce, exchange, release, or waive any security for the Guaranteed Obligations
or any other guaranty of the Guaranteed Obligations, or any portion
thereof.
7. No
Election. Lender shall have all of the rights to seek recourse
against Guarantor to the fullest extent provided for herein, and no election
by
▇▇▇▇▇▇ to proceed in one form of action or proceeding, or against any party,
or
on any obligation, shall constitute a waiver of Lender’s right
to
proceed in any other form of action or proceeding or against other parties
unless ▇▇▇▇▇▇ has expressly waived such right in
writing. Specifically, but without limiting the generality of the
foregoing, no action or proceeding by Lender under any document or instrument
evidencing the Guaranteed Obligations shall serve to diminish the liability
of
Guarantor under this Guaranty except to the extent that Lender finally and
unconditionally shall have realized indefeasible payment by such action or
proceeding.
8. Indefeasible
Payment. The Guaranteed Obligations shall not be considered
indefeasibly paid for purposes of this Guaranty unless and until all payments to
Lender are no longer subject to any right on the part of any person, including
Borrower, Borrower as a debtor in possession, or any trustee (whether appointed
under the Bankruptcy Code or otherwise) of any of Borrower’s assets to
invalidate or set aside such payments or to seek to recoup the amount of such
payments or any portion thereof, or to declare same to be fraudulent or
preferential. In the event that, for any reason, any portion of such
payments to Lender is set aside or restored, whether voluntarily or
involuntarily, after the making thereof, then the obligation intended to be
satisfied thereby shall be revived and continued in full force and effect as
if
said payment or payments had not been made, and Guarantor shall be liable for
the full amount Lender is required to repay plus any and all costs and expenses
(including attorneys’ fees and expenses and attorneys’ fees and expenses
incurred pursuant to proceedings arising under the Bankruptcy Code) paid by
▇▇▇▇▇▇ in connection therewith.
9. Financial
Condition of Borrower. Guarantor represents and warrants to
Lender that Guarantor is currently informed of the financial condition of
Borrower and of all other circumstances which a diligent inquiry would reveal
and which bear upon the risk of nonpayment of the Guaranteed
Obligations. Guarantor further represents and warrants to Lender that
Guarantor has read and understands the terms and conditions of the Loan
Documents. Guarantor hereby covenants that Guarantor will continue to
keep informed of ▇▇▇▇▇▇▇▇’s financial condition, the financial condition of
other guarantors, if any, and of all other circumstances which bear upon the
risk of nonpayment or nonperformance of the Guaranteed Obligations.
10. Subordination. Guarantor
hereby agrees that any and all present and future indebtedness of Borrower
owing
to Guarantor is postponed in favor of and subordinated to payment, in full,
in
cash, of the Guaranteed Obligations. In this regard, no payment of
any kind whatsoever shall be made with respect to such indebtedness if and
so
long as any Guaranteed Obligations are due and have not been indefeasibly paid
in full. Until payment in full of the Guaranteed Obligations, ▇▇▇▇▇▇▇▇▇ 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
proceeding under the Bankruptcy Code, including the right to vote on any plan
of
reorganization.
11. Payments;
Application. All payments to be made hereunder by Guarantor shall
be made in lawful money of the United States of America at the time of payment,
shall be made in immediately available funds, and shall be made without
deduction (whether for taxes or otherwise) or offset. All payments
made by Guarantor hereunder shall be applied as follows: first, to all costs
and
expenses (including attorneys’ fees and expenses and attorneys’ fees and
expenses incurred pursuant to proceedings arising under the Bankruptcy Code)
incurred by ▇▇▇▇▇▇ in enforcing this Guaranty or in collecting the Guaranteed
Obligations; second, to all accrued and unpaid interest, premium, if any, and
fees owing to Lender constituting Guaranteed Obligations; and third, to the
balance of the Guaranteed Obligations.
12. Attorneys’
Fees and Costs. ▇▇▇▇▇▇▇▇▇ agrees to pay, on demand, all
attorneys’ fees (including attorneys’ fees incurred pursuant to proceedings
arising under the Bankruptcy Code) and all other costs and expenses which may
be
incurred by ▇▇▇▇▇▇ in the enforcement of this Guaranty (including those brought
relating to proceedings pursuant to 11 U.S.C.) or in any way arising out of,
or
consequential
to the protection, assertion, or enforcement of the Guaranteed Obligations
(or
any security therefor), whether or not suit is brought.
13. Notices. All
notices or demands by Guarantor or Lender to the other relating to this Guaranty
shall be in writing and either personally served or sent by registered or
certified mail, postage prepaid, return receipt requested, or by recognized
courier service which provides return receipts, and shall be deemed delivered
on
the date of actual delivery or refusal to accept delivery as evidenced by the
return receipt. Unless otherwise specified in a notice sent or
delivered in accordance with the provisions of this section, such writing shall
be sent, if to Guarantor, then at Guarantor’s address set forth in the Defined
Terms, and if to Lender, then at ▇▇▇▇▇▇’s address set forth in the Defined
Terms.
14. Cumulative
Remedies. No remedy under this Guaranty or under any Loan
Document is intended to be exclusive of any other remedy, but each and every
remedy shall be cumulative and in addition to any and every other remedy given
hereunder or under any Loan Document, and those provided by law or in
equity. No delay or omission by ▇▇▇▇▇▇ to exercise any right under
this Guaranty shall impair any such right nor be construed to be a waiver
thereof. No failure on the part of Lender to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right.
15. Severability
of Provisions. If any provision of this Guaranty is for any
reason held to be invalid, illegal or unenforceable in any respect, that
provision shall not affect the validity, legality or enforceability of any
other
provision of this Guaranty.
16. Entire
Agreement; Amendments. This Guaranty constitutes the entire
agreement between Guarantor and Lender pertaining to the subject matter
contained herein. This Guaranty may not be altered, amended, or
modified, nor may any provision hereof be waived or noncompliance therewith
consented to, except by means of a writing executed by both Guarantor and
▇▇▇▇▇▇. Any such alteration, amendment, modification, waiver, or
consent shall be effective only to the extent specified therein and for the
specific purpose for which given. No course of dealing and no delay
or waiver of any right or default under this Guaranty shall be deemed a waiver
of any other, similar or dissimilar right or default or otherwise prejudice
the
rights and remedies hereunder.
17. Successors
and Assigns. This Guaranty shall be binding upon
Guarantor’s, successors, and assigns and shall inure to the benefit of Lender
and its successors and assigns of Lender; provided, however,
Guarantor shall not assign this Guaranty or delegate any of its duties hereunder
without ▇▇▇▇▇▇’s prior written consent. Any assignment without the
consent of ▇▇▇▇▇▇ shall be absolutely void. In the event of any
assignment or other transfer of rights by ▇▇▇▇▇▇ in accordance with the Loan
Documents, the rights and benefits herein conferred upon Lender shall
automatically extend to and be vested in such assignee or other
transferee.
18. Covenant
of Guarantor.
(a)
Guarantor covenants and agrees that it will be an event of default under this
Guaranty if at any time prior to the release of Liable Party from all
obligations hereunder (other than those described in the second to the last
sentence of Section 10.3(a) of the Deed of Trust), (1) Strategic Hotel Funding,
L.L.C. and DND Hotel JV Pte Ltd. do not own at least 99% of the equity of the
Guarantor and Control (as defined in the Deed of Trust) the Guarantor, and/or
(2) Guarantor does not maintain a net worth of at least
$50,000,000.00.
(b) Guarantor covenants and agrees that it will not incur
an indebtedness (defined
consistent
with generally accepted accounting principles) without the written consent
of
Beneficiary.
(c)
Guarantor covenants and agrees to provide an officer's certificate in form
and substance satisfactory to Beneficiary as to compliance with the requirements
of subsection (a) and (b) above within ninety (90) days after the close of
each
fiscal year of Guarantor.
19. Choice
of Law and Venue. The validity of this Guaranty, its
construction, interpretation, and enforcement, and the rights of Guarantor
and
Lender, shall be determined under, governed by, and construed in accordance
with
the internal laws of the State of California, without regard to principles
of
conflicts of law. To the maximum extent permitted by law, Guarantor
hereby agrees that all actions or proceedings arising in connection with this
Guaranty shall be tried and determined only in the state and federal courts
located in the County of San Francisco, State of California, or, at the sole
option of Lender, in any other court in which Lender shall initiate legal or
equitable proceedings and which has subject matter jurisdiction over the matter
in controversy. To the maximum extent permitted by law, Guarantor
hereby expressly waives any right it may have to assert the doctrine of
forumnonconveniens or to object to venue to the extent any
proceeding is brought in accordance with this Section.
20. WAIVER
OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED
BY LAW, INCLUDING ANY LAW ENACTED AFTER THE DATE OF THIS GUARANTY, GUARANTOR
AND
▇▇▇▇▇▇ EACH HEREBY ABSOLUTELY, KNOWINGLY, UNCONDITIONALLY, AND EXPRESSLY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR
PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS GUARANTY, OR IN ANY WAY
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE DEALINGS OF GUARANTOR AND
LENDER WITH RESPECT TO THIS GUARANTY, OR THE TRANSACTIONS RELATED HERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ EACH HEREBY AGREES THAT ANY SUCH ACTION, CAUSE OF ACTION,
CLAIM, DEMAND, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY
AND THAT GUARANTOR OR LENDER MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION
WITH ANY COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF GUARANTOR
OR LENDER TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
21. Understandings
With Respect to Waivers and Consents. Guarantor warrants and
agrees that each of the waivers and consents set forth are made after
consultation with legal counsel and with full knowledge of their significance
and consequences, with the understanding that events giving rise to a defense
or
right may diminish, destroy, or otherwise adversely affect rights which
Guarantor otherwise may have against the Borrower, or against any collateral,
and that, under the circumstances the waivers and consents herein given are
reasonable and not contrary to public policy or law. If any of the
waivers or consents are determined to be unenforceable under applicable law,
such waivers and consents shall be effective to the maximum extent permitted
by
law.
IN
WITNESS WHEREOF, ▇▇▇▇▇▇▇▇▇ has executed and delivered this Guaranty as of the
date set forth in the Defined Terms.
| GUARANTOR: | ||||
|
SHC
AVENTINE II, L.L.C.,
|
||||
| a Delaware limited liability company | ||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇ | |||
| Its: | Vice President & Treasurer | |||
EXHIBIT
A
DESCRIPTION
OF LAND
THE
LAND
REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY AND COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
PARCEL
A:
PARCELS
2
AND 3 OF PARCEL MAP NO. 18367, IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, NOVEMBER 4, 1999.
PARCEL
B:
THE
EASEMENTS GRANTED FOR THE PURPOSES SHOWN IN THE DECLARATION OF COVENANTS,
EASEMENTS AND RESTRICTIONS RECORDED JULY 2, 1999 AS FILE NO. 1999-0463397 OF
THE
OFFICIAL RECORDS, SUBJECT TO THE TERMS AND CONDITIONS CONTAINED
THEREIN.
APN:
▇▇▇-▇▇▇-▇▇-▇▇ (Affects: Parcel 2) and ▇▇▇-▇▇▇-▇▇-▇▇ (Affects: Parcel
3)