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EXHIBIT 10.4 Form of Power REIT Guarantee
GUARANTY
THIS GUARANTY (this "Guaranty") dated as of this ___day of July,
2013 is made by POWER REIT, a Maryland real estate investment trust
(the "Guarantor"), with an address of 301 Winding Road, Old Bethpage,
New York 11804, to and for the benefit of HUDSON BAY PARTNERS, L.P., a
New York limited partnership (the "Lender"), with a principal place of
business at 301 Winding Road, Old Bethpage, New York 11804.
R E C I T A L S:
A. PW TULARE SOLAR, LLC, a California limited liability
company (the "Borrower"), with a principal place of business at
301Winding Road, Old Bethpage, New York 11804, is obtaining a loan
(the "Loan") from Lender in the original principal amount of One
Million Six Hundred Fifty Thousand and 00/100 Dollars ($1,650,000.00)
(the "Loan Amount").
B. The Loan is evidenced by (i) a Promissory Note A, dated of
even date herewith, made by Borrower to the order of Lender in the
amount of One Million One Hundred Fifty-Five Thousand and 00/100
Dollars ($1,155,000.00); and (ii) a Promissory Note B, dated of even
date herewith, made by Borrower to the order of Lender in the amount
of Four Hundred Ninety-Five Thousand and 00/100 Dollars ($495,000.00)
(as now or hereafter amended, modified, substituted or replaced, the
"Notes" and individually each a "Note").
C. The Loan is secured by a Deed of Trust with Assignment of
Rents, dated of even date herewith, by Borrower in favor of Lender (as
now or hereafter amended, modified, substituted or replaced, the
"Mortgage") with respect to that certain real property located in
Tulare County, California and more particularly described on Exhibit A
hereto the "Property").
D. Guarantor represents to Lender that Lender's making of the
Loan to Borrower will be to the direct interest, advantage and benefit
of Guarantor.
E. This Guaranty is given to Lender and guarantees the
obligations of the Borrower contained in each and every one of the
Loan Documents (as defined in the Mortgage Agreement) delivered to
Lender in connection with the Loan evidenced by the Notes.
F. Guarantor, as an inducement to Lender to make the Loan,
represents and agrees with Lender that the funds represented by the
Notes are being used for business and commercial purposes and not for
personal, household or family purposes.
A G R E E M E N T:
NOW THEREFORE, in order to induce Lender to make the Loan to
Borrower, and in consideration of the matters described in the
foregoing recitals and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Guarantor
hereby agrees as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Incorporation of Other Definitions. All
initially capitalized terms used in this Guaranty which are not
otherwise defined in this Guaranty shall have the meanings ascribed to
them in the Loan Documents.
Section 1.2 Definitions. As used in this Guaranty the
following terms shall have the following meanings:
"Default Rate": The "Default Rate" as defined in the
Notes.
"Lender": The individual or entity described as Lender in
the preface of this Guaranty and/or such of its affiliate(s),
nominee(s) or subsidiary(ies) to the extent such entity holds an
interest in the Loan or acts on behalf of any entity that holds an
interest in the Loan, and any investor, participant, co-lender or
assignee to whom the Loan, in whole or in part, may be sold, assigned,
pledged or otherwise transferred, and their successors and assigns.
"Loan Documents": The Notes, the Mortgage, this Guaranty,
and/or any of the other documents, instruments and agreements executed
and/or delivered to Lender in connection with the Notes or Lender's
commitment to make the Loan evidenced thereby, as now or hereafter
amended, modified, substituted or replaced.
Section 1.3 Rules of Construction. No rules of construction
against the drafter of this Guaranty shall apply in the interpretation
of this Guaranty or any of the provisions hereof.
Section 1.4 Interpretation. For purposes of this Guaranty,
except as otherwise expressly provided or unless the context otherwise
requires: (a) defined terms include the plural as well as the
singular, and the use of any gender herein shall be deemed to include
the other genders; (b) references herein to "Articles," "Sections,"
subsections, paragraphs and other subdivisions without reference to a
document are to designated Articles, Sections, subsections, paragraphs
and other subdivisions of this Guaranty; (c) a reference to a
subsection without further reference to a Section is a reference to
such subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to paragraphs,
clauses and other subdivisions; (d) the words "hereof," "herein,"
"thereof," "hereunder" and other words of similar import refer to this
Guaranty as a whole and not to any particular provisions; (e) the
headings of the Articles, Sections or subsections of this Guaranty are
inserted for convenience of reference only and shall in no way alter,
modify or define, or be used in construing, the substance of such
Articles, Sections or subsections; (f) the word "including" or
"includes" means "including, but not limited to" or "includes without
limitation"; (g) the words "approval," "consent" and "notice" shall be
deemed to be preceded by the word "written"; (h) in the computation of
periods of time from a specified date to a later specified date, the
word "from" means "from and including"; the words "to" and "until"
mean "to but excluding"; and the word "through" means "to and
including"; (i) any reference to this Guaranty, including any Exhibits
hereto shall include this Guaranty and any such Exhibits, as the same
may from time to time be supplemented, modified or amended; (j) any
document that is "certified" means the document has been appended to a
certificate of the party certifying the document that affirms the
truth and accuracy of everything in the document being certified,
subject to the limitations therein; and (k) unless otherwise
specifically provided, all references in this Guaranty to a number of
days shall mean calendar days rather than business days.
ARTICLE II
GUARANTY OF PAYMENT AND PERFORMANCE
Section 2.1 Guaranteed Obligations. Guarantor absolutely,
unconditionally and irrevocably guaranties to Lender, as primary
obligor and not as surety, and jointly and severally with each and
every other guarantor (if any), the payment and performance of the
Guaranteed Obligations. As used in this Guaranty, the term
"Guaranteed Obligations" shall mean:
(a) The payment when due of the outstanding principal
balance of the Notes, interest thereon, and all other sums due or
to become due and payable to the Lender under the provisions of
the Loan Documents;
(b) The payment, performance and discharge of each and
every obligation, covenant, undertaking and agreement of the
Guarantor hereunder and of Borrower to the Lender contained in
any of the other Loan Documents, including the indemnification
obligations under the Mortgage; and
(c) The payment of all Costs of Collection defined in
Section 2.3 below.
Section 2.2 Agreement to Pay. Upon a default, Default or
Event of Default as defined in or set forth in the Notes or Mortgage,
and including, without limitation, failure by Borrower and Guarantor
to fully, faithfully and punctually observe their obligations under
the Loan Documents within applicable grace periods, if any, Lender may
at its option proceed directly and at once, without further notice
(other than any notice required by applicable law or the Loan
Documents) against Guarantor hereunder, without proceeding against
Borrower or any other person or any collateral for the Guaranteed
Obligations. Any sums due and payable by Guarantor hereunder shall
bear interest at the Default Rate from the date of Lender's demand
until the date paid.
Section 2.3 Costs of Collection. Guarantor further agrees to
pay Lender all costs and expenses (including all court costs and
attorneys' fees and disbursements) paid or incurred by Lender in
endeavoring to collect the Guaranteed Obligations from Borrower or
Guarantor, to enforce any of the Guaranteed Obligations against
Borrower or Guarantor, or any portion thereof, or to enforce this
Guaranty, together with interest thereon at the Default Rate from the
date such costs or expenses were paid or incurred by Lender until paid
to Lender unless collection from Guarantor of interest at such rate
would be contrary to law applicable to Guarantor, in which event such
sums shall bear interest at the highest rate which may be collected
from Guarantor under applicable law (collectively, the "Costs of
Collection").
Section 2.4 Reinstatement of Refunded Payments. If for any
reason Lender is required to refund or relinquish to Borrower or
Guarantor any payment of the Guaranteed Obligations received by Lender
from Borrower or any other person, including by reason of the
operation of any debtor relief laws now or hereafter enacted, then
Guarantor agrees to pay to Lender on demand an amount equal to the
amount so required to be refunded or relinquished, it being expressly
agreed that the obligations of Guarantor shall not be treated as
having been discharged by the original payment to Lender giving rise
to such refund or relinquishment, and this Guaranty shall be treated
as having remained in full force and effect for any such refund or
relinquishment so made by Lender as well as for any amounts not
theretofore paid to Lender on account of such Guaranteed Obligations.
Section 2.5 Acknowledgment of Other Rights. Nothing herein
shall: (a) constitute a waiver, release or impairment of any
obligation evidenced by the Loan Documents including any right which
Lender may have under Sections 506(a), 506(b), 1111(b) or any other
provision of the U.S. Bankruptcy Code to file a claim for the full
amount of the indebtedness secured by the Mortgage or to require that
all of the Property shall continue to secure all of the indebtedness
owed to Lender pursuant to the Loan Documents; (b) affect the validity
or enforceability of any indemnity, guaranty or similar instrument
made in connection with any Loan Document; (c) impair the right of
Lender to obtain the appointment of a receiver; or (d) impair the
enforcement of any of Lender's other rights, including rights to
realize upon any collateral.
ARTICLE III
NATURE OF GUARANTOR'S OBLIGATIONS
Section 3.1 Primary Obligation of Guarantor. This is a
guaranty of payment and performance and not just of collection. The
liability of Guarantor under this Guaranty is primary, direct and
immediate and not conditional or contingent upon the pursuit of any
remedies against Borrower or any other person, nor against securities
or liens available to Lender, Lender's successors, successors in
title, endorsees or assigns. This Guaranty shall not be affected by
any circumstance that constitutes a legal or equitable discharge of a
guarantor or surety other than indefeasible payment in full of all of
the Guaranteed Obligations. Lender may enforce this Guaranty
notwithstanding the existence of any dispute between Lender and
Borrower with respect to the existence of a breach or default of the
Guaranteed Obligations. Guarantor hereby waives any right to require
that an action be brought against Borrower or any other person or to
require that resort be had to any security or to any balance of any
deposit account or credit on the books of Lender in favor of Borrower
or any other person, if any. This Guaranty shall be irrevocable by
Guarantor. If Guarantor pays any amount hereunder and it is later
determined that: (i) neither Borrower nor Guarantor is liable as
determined by a final order of a court of competent jurisdiction after
all appeals have been exhausted, then Lender shall promptly reimburse
Guarantor the amount paid; or (ii) either Borrower or Guarantor is
liable, but for an amount more than the amount paid by Guarantor,
then, Guarantor shall promptly pay to Lender the amount of any
shortfall; or (iii) either Borrower or Guarantor is liable, but for an
amount less than the amount paid by Guarantor, then Lender shall
promptly reimburse Guarantor for the excess. Notwithstanding the
foregoing, Lender may deduct all reasonable costs and expenses
incurred by Lender before returning any amounts paid to Guarantor.
Section 3.2 No Waiver by Lender. Guarantor agrees that
notwithstanding any and all omissions or delays by Lender in
exercising any rights under this Guaranty or any of the other Loan
Documents, any and all forbearances and extensions of the time of
payment of the Loan, and any and all substitutions, exchanges or
releases of all or any part of the collateral therefor, Guarantor
shall remain liable, notwithstanding any action, omission or thing
which might otherwise operate as a legal or equitable discharge of
Borrower or Guarantor.
Section 3.3 Order of Enforcement. Upon Borrower's default,
Lender, at Lender's election, may proceed against Guarantor with or
without: (a) joining in any such action Borrower or any other
indemnitor or guarantor; (b) commencing any action against or
obtaining any judgment against Borrower; or (c) commencing any
proceeding to enforce the Loan Documents.
Section 3.4 Effect of Unenforceability of Loan Documents or
Bankruptcy. Guarantor agrees that Guarantor's obligations hereunder
shall not be impaired, modified, changed, released or limited in any
manner whatsoever by any invalidity, irregularity or unenforceability
of all or any part of the Loan Documents or by any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding under any debtor relief laws
relating to Borrower, Guarantor, any other guarantor or indemnitor, or
any affiliate of any of them. The liability of Guarantor hereunder is
primary and unconditional and shall not be subject to any offset,
defense (other than the defense of prior payment in full) or
counterclaim.
Section 3.5 Payment on Demand. Guarantor agrees that all
obligations of Guarantor hereunder shall be due and payable on demand.
Section 3.6 Survival. The obligations of Guarantor hereunder
shall survive a foreclosure of the Mortgage and/or conveyance of all
or any portion of the Property in lieu of a foreclosure of the
Mortgage until the non-contestable repayment in full of the Loan.
Section 3.7 Rights of Lender to Deal with Collateral,
Borrower and Other Persons.
3.7.1 Rights to Release or Substitute. Guarantor hereby
consents and agrees that Lender may at any time, and from time to
time, without thereby releasing Guarantor from any liability hereunder
and without notice to or further consent from Guarantor, either with
or without consideration: (a) release or surrender any lien, security
interest or other security of any kind or nature whatsoever held by
Lender or by any person, firm or corporation on Lender's behalf or for
Lender's account, securing any of the Guaranteed Obligations; (b)
substitute for any collateral so held by Lender, other collateral of
like kind, or of any kind; (c) modify the terms of the Note(s) or any
of the other Loan Documents; (d) extend or renew the Note(s) for any
period; and (e) grant releases, compromises and indulgences with
respect to the Note(s) or any of the other Loan Documents and to any
persons or entities now or hereafter liable thereunder or hereunder;
(f) release any other guarantor, surety, endorser or accommodation
party of the Note(s) or any other Loan Documents; or (g) take or fail
to take any action of any type whatsoever.
3.7.2 No Affect on Guaranty. No action which Lender shall
take or fail to take in connection with the Notes or any of the other
Loan Documents, or any of them, or any security for the payment of the
indebtedness of Borrower to Lender or for the performance of any of
the Guaranteed Obligations or other undertakings of Borrower, nor any
course of dealing with Borrower or any other person, shall release
Guarantor's obligations under this Agreement, affect this Guaranty in
any way, or afford Guarantor any recourse against Lender.
3.7.3 Renewals and Modifications. The provisions of this
Guaranty shall extend and be applicable to all renewals, amendments,
extensions, consolidations, restatements and modifications of the
Note(s) and the other Loan Documents, and any and all references
herein to the Note(s) and the other Loan Documents shall be deemed to
include any such renewals, extensions, amendments, consolidations,
restatements or modifications thereof, provided that none of the
foregoing materially increases the scope or extent of the Guaranteed
Obligations.
Section 3.8 No Contest with Lender; Subordination
3.8.1 No Set-Off or Counterclaim Against Borrower. So long
as any portion of the Loan and/or the Guaranteed Obligations remain
unpaid, Guarantor will not, by paying any sum recoverable hereunder
(whether or not demanded by Lender) or by any means or on any other
ground, claim any set-off or counterclaim against Borrower in respect
of any liability of Borrower to Guarantor or, in proceedings under the
U.S. Bankruptcy Code or other insolvency proceedings of any nature,
prove in competition with Lender in respect of any payment hereunder
or be entitled to have the benefit of any counterclaim or proof of
claim or dividend or payment by or on behalf of Borrower or the
benefit of any other security for any Guaranteed Obligation which, now
or hereafter, Lender may hold or in which Lender may have any share.
3.8.2 Subordination by Guarantor. So long as any portion of
the Loan remains unpaid, Guarantor hereby subordinates any and all
indebtedness of Borrower now or hereafter owed to Guarantor to all of
the Guaranteed Obligations and any other indebtedness of Borrower to
Lender and agrees with Lender that:
(a) Guarantor shall not demand or accept any payment from
Borrower on account of such indebtedness;
(b) Guarantor shall not claim any offset or other
reduction of Guarantor's obligations under this Guaranty because
of any such indebtedness;
(c) Guarantor shall not take any action to obtain any
interest in any of the security described in and encumbered by
the Loan Documents because of any such indebtedness; and
(d) Guarantor shall not be entitled to receive and hereby
waive the right to receive any distributions or fees from
Borrower until the Loan is paid in full except to the extent
expressly permitted under the Mortgage.
3.8.3 Collection for Lender. Notwithstanding the foregoing,
so long as any portion of the Loan remains unpaid, if Lender so
requests, any indebtedness of Borrower now or hereafter owed by
Borrower to Guarantor shall be collected, enforced and received by
Guarantor in trust as trustee for Lender and be paid over to Lender on
account of the indebtedness of Borrower and/or Guarantor to Lender,
but without reducing or affecting in any manner the liability of
Guarantor under the other provisions of this Guaranty except to the
extent the principal amount of such outstanding indebtedness shall
have been reduced by such payment.
Section 3.9 Business Failure, Bankruptcy or Insolvency
3.9.1 Proofs of Claim. In the event there shall be pending
any bankruptcy or insolvency case or proceeding with respect to
Guarantor under the U.S. Bankruptcy Code or any other applicable
debtor relief law or in connection with the insolvency of Guarantor,
or if a liquidator, receiver, or trustee shall have been appointed for
Guarantor or Guarantor's properties or assets, Lender may file such
proofs of claim and other papers or documents as Lender may deem to be
necessary or advisable in order to have the claims of Lender allowed
in any proceedings relative to Guarantor, or any of Guarantor's
properties or assets, and, irrespective of whether the Guaranteed
Obligations shall then be due and payable, by declaration or
otherwise, Lender shall be entitled and empowered to file and prove a
claim for the whole amount of any sums or sums owing with respect to
the Guaranteed Obligations, and to collect and receive any moneys or
other property payable or deliverable on any such claim. Guarantor
shall cooperate in good faith with Lender in connection with the
foregoing.
3.9.2 Continuing Obligations. So long as any portion of the
Loan remains unpaid, Guarantor shall not, without the prior written
consent of Lender, commence, consent to or join with any other person
or entity in commencing any bankruptcy, reorganization or insolvency
proceedings of or against Borrower. The obligations of Guarantor
under this Guaranty shall not be reduced, limited, impaired,
discharged, deferred, suspended or terminated by any proceeding,
voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of Borrower
or Guarantor or by any defense that Borrower or Guarantor may have by
reason of the order, decree or decision of any court or administrative
body resulting from any such case or proceeding. Guarantor
acknowledges and agrees that any interest on any portion of the
Guaranteed Obligations that accrues after the commencement of any
proceeding referred to above (or, if interest on any portion of the
Guaranteed Obligations ceases to accrue by operation of law by reason
of the commencement of such case or proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if such
case or proceeding had not been commenced) shall be included in the
Guaranteed Obligations because it is the intention of Guarantor and
Lender that the Guaranteed Obligations that are guaranteed by
Guarantor hereunder should be determined without regard to any rule of
law or order that may relieve Borrower of any portion of such
Guaranteed Obligations.
3.9.3 Admission of Cause. If: (a) there is filed by or
against Borrower or Guarantor a petition or answer or consent seeking
relief under the U.S. Bankruptcy Code or any other applicable debtor
relief law; (b) Borrower or Guarantor consents to the institution of
proceedings thereunder or the filing of such petition or order; (c)
Borrower or Guarantor makes an assignment for the benefit of
creditors; (d) Borrower or Guarantor fails generally to pay its debts
as they come due; (e) there shall be instituted a proceeding for the
winding up or liquidation of the affairs of Borrower or Guarantor; or
(f) there shall be instituted a proceeding for the appointment of any
liquidator, assignee, trustee, sequestrator (or similar official) with
respect to Borrower or Guarantor or any portion of their respective
properties, then Guarantor hereby stipulates and agrees to the fullest
extent permitted by law that, to the extent such stay may be
applicable as between Lender and Borrower or Guarantor, this
constitutes "Cause" under Section 362(d) of the Bankruptcy Code to
lift the automatic stay and Lender shall be entitled, subject to
approval of the Bankruptcy Court, and, to the extent court relief from
the stay is necessary or deemed advisable by Lender, Guarantor
irrevocably consents to relief from, and Guarantor shall not defend
against or oppose any motion to lift, any automatic stay imposed by
Section 362 of the Bankruptcy Code, or otherwise, to allow Lender to
exercise all rights and remedies available to Lender, including
foreclosure, as provided in the Loan Documents and as otherwise
provided by law, and Guarantor hereby irrevocably waive any right to
object to relief from such automatic stay.
ARTICLE IV
WAIVERS BY GUARANTOR
Section 4.1 Waivers. Guarantor hereby agrees that
Guarantor's obligations under this Guaranty shall not be affected or
impaired by, and hereby waives and agrees not to assert or take
advantage of any defense based on any of the following:
(a) the incapacity or lack of authority of Borrower or
Guarantor or any other person or entity, the death or disability
of Borrower or Guarantor or any other person or entity, or the
failure of Lender to file or enforce a claim against the estate
(either in administration, bankruptcy or in any other proceeding)
of Borrower or any other person or entity;
(b) the dissolution or termination of existence of
Borrower or Guarantor;
(c) the voluntary or involuntary liquidation, sale or
other disposition of all or substantially all of the assets of
Borrower or Guarantor;
(d) the voluntary or involuntary receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, assignment, composition, or readjustment of, or
any similar proceeding affecting, Borrower, Guarantor or any of
Borrower's or Guarantor's properties or assets;
(e) failure to make or give notice of acceptance, demand,
presentment for payment, protest and notice of protest, demand,
dishonor and nonpayment and all other notices except as expressly
required in the Loan Documents, including the failure of Lender
to give notice of the existence, creation or incurring of any new
or additional indebtedness or Guaranteed Obligations or of any
action or non-action on the part of Borrower, Lender, any
endorser or creditor of Borrower or of Guarantor or on the part
of any other person whomsoever under this Guaranty or any other
Loan Document, or any and all other notices whatsoever to which
Guarantor might otherwise be entitled;
(f) any failure or delay of Lender to commence an action
against Borrower, to assert or enforce any remedies against
Borrower under the Note(s) or any of the other Loan Documents, or
to realize upon any security;
(g) any failure of any duty on the part of Lender to
disclose to Guarantor any facts Lender may now or hereafter know
regarding Borrower, whether such facts materially increase the
risk to Guarantor or not;
(h) any lack of diligence by Lender in collection,
protection or realization upon any collateral securing the
payment or performance of the Guaranteed Obligations;
(i) the invalidity or unenforceability of the Notes or any
of the Loan Documents;
(j) the compromise, settlement, release or termination of
any of the Guaranteed Obligations;
(k) the failure of Lender to perfect any security or to
extend or renew the perfection of any security;
(l) any right or claim of right to cause a marshaling of
the assets of Guarantor or any other party;
(m) any right to require Lender (i) to proceed against
Borrower or any other person, (ii) to proceed against or exhaust
any security held by Lender at any time, or (iii) to pursue any
other remedy in Lender's power or under any other agreement, in
any case, before proceeding against Guarantor hereunder;
(n) any defense based upon an election of remedies,
splitting a cause of action or merger of judgments;
(o) any principle or provision of law, statutory or
otherwise, which is or might be in conflict with the terms and
provisions of this Guaranty;
(p) any facts, or any duty on the part of Lender to
disclose to Guarantor any facts, Lender may now or hereafter know
about Borrower or the Property, regardless of whether Lender (i)
has reason to believe that any such facts materially increase the
risk beyond that which Guarantor intends to assume, (ii) has
reason to believe that such facts are unknown to Guarantor, or
(iii) has a reasonable opportunity to communicate such facts to
Guarantor, it being understood and agreed that Guarantor is fully
responsible for being and keeping itself informed of the
financial condition of Borrower, the financial and physical
condition of the Property and all other circumstances bearing on
the risk that liability may be incurred by Guarantor hereunder;
(q) any invalidity, irregularity or unenforceability, in
whole or in part, of any one or more of the Loan Documents;
(r) any deficiency in the collateral for the Loan or any
deficiency in the ability of Lender to collect or obtain
performance from any persons now or hereafter liable for the
payment and performance of any obligation guaranteed hereby;
(s) any claim that the automatic stay provided by 11
U.S.C. 362 (arising upon the voluntary or involuntary
bankruptcy proceeding of Borrower) or any other stay provided
under any other debtor relief law (whether statutory, common law,
case law or otherwise) of any jurisdiction whatsoever, now or
hereafter in effect, which may be or become applicable, shall
operate or be interpreted to stay, interdict, condition, reduce
or inhibit the ability of Lender to enforce any of Lender's
rights, whether now existing or hereafter acquired, which Lender
may have against Guarantor, Borrower or the Property or any other
collateral for the Loan or this Guaranty;
(t) any modifications of the Loan Documents or any
obligation of Borrower relating to the Loan by operation of law
or by action of any court, whether pursuant to the U.S.
Bankruptcy Code or any other debtor relief law (whether
statutory, common law, case law or otherwise) of any jurisdiction
whatsoever, now or hereafter in effect, or otherwise;
(u) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that
of the principal;
(v) to the fullest extent permitted by law, any other
legal, equitable or surety defenses whatsoever to which Guarantor
might otherwise be entitled, it being the intention that the
obligations of Guarantor hereunder are absolute, unconditional
and irrevocable; or
(w) the purchase by Lender of other indebtedness
obligations or rights of Guarantor or Borrower.
Guarantor covenants and agrees that, upon the commencement of a
voluntary or involuntary bankruptcy proceeding by or against Borrower,
Guarantor shall not seek or cause Borrower or any other person to seek
a supplemental stay or other relief, whether injunctive or otherwise,
pursuant to 11 U.S.C. ? 105 or any other provision of the U.S.
Bankruptcy Code or any other debtor relief law (whether statutory,
common law, case law or otherwise) of any jurisdiction whatsoever, now
or hereafter in effect, which may be or become applicable, to stay,
interdict, condition, reduce or inhibit the ability of Lender to
enforce any rights of Lender against Guarantor or the collateral for
the Loan by virtue of this Guaranty or otherwise.
Section 4.2 Suretyship and Guaranty Waivers. WITHOUT
LIMITING THE FOREGOING, GUARANTOR HEREBY WAIVES NOTICE OF: (A)
LENDER'S ACCEPTANCE OF THIS GUARANTY; (B) ANY GRANT TO LENDER OF A
SECURITY INTEREST, LIEN OR ENCUMBRANCE IN OR ON ANY ASSETS OF
BORROWER; (C) LENDER'S RELEASE OR WAIVER OF THIS GUARANTY, OR ANY
OBLIGATION OF GUARANTOR HEREUNDER, OR ANY PARTY'S GUARANTEE OF THE
NOTES OR ANY SECURITY INTEREST, LIEN OR ENCUMBRANCE IN ANY OTHER
PARTY'S ASSETS GIVEN TO LENDER TO SECURE THE NOTES, THIS GUARANTY OR
ANY OTHER PARTY'S GUARANTEE; (D) LENDER'S RELEASE, WAIVER OR
MODIFICATION OF THE NOTES OR ANY OTHER LOAN DOCUMENTS;
(E) PRESENTMENT, DEMAND, NOTICE OF DEFAULT, INTENT TO ACCELERATE THE
NOTES, ACCELERATION, NON-PAYMENT, PARTIAL PAYMENT AND PROTEST AND ALL
OTHER NOTICES OR FORMALITIES TO WHICH GUARANTOR MAY BE ENTITLED EXCEPT
AS SPECIFICALLY PROVIDED IN THE LOAN DOCUMENTS; (F) ALL SURETYSHIP
DEFENSES OF EVERY KIND AND NATURE; (G) EXTENSIONS OF TIME OF PAYMENT
OF THE NOTES GRANTED TO BORROWER; AND (H) ACCEPTANCE FROM BORROWER OR
GUARANTOR (OR ANY OTHER PARTY) OF ANY PARTIAL PAYMENT OR PAYMENTS OF
ANY GUARANTEED OBLIGATIONS OR ANY COLLATERAL SECURING THE PAYMENT
THEREOF OR THE SETTLEMENT, SUBORDINATION, DISCHARGE OR RELEASE OF THE
NOTES OR ANY GUARANTEED OBLIGATIONS. GUARANTOR AGREES THAT LENDER MAY
HAVE OR AT ANY TIME MAY TAKE ANY OR ALL OF THE FOREGOING ACTIONS IN
SUCH MANNER, UPON SUCH TERMS AND AT SUCH TIMES AS LENDER, IN LENDER'S
SOLE DISCRETION, DEEMS ADVISABLE, WITHOUT IN ANY WAY IMPAIRING,
AFFECTING, REDUCING OR RELEASING GUARANTOR FROM GUARANTOR'S
OBLIGATIONS UNDER THIS GUARANTY AND GUARANTOR HEREBY CONSENTS TO EACH
OF THE FOREGOING ACTIONS.
Section 4.3 Waiver of Subrogation. GUARANTOR HEREBY
SUBORDINATES TO ANY CLAIM OF LENDER ANY RIGHT OF SUBROGATION OR CLAIM
FOR REIMBURSEMENT GUARANTOR MAY HAVE AGAINST BORROWER IN CONNECTION
WITH ANY PAYMENTS MADE TO LENDER PURSUANT TO THE PROVISIONS OF THIS
GUARANTY UNTIL LENDER HAS BEEN PAID ALL AMOUNTS DUE TO THE LENDER
PURSUANT TO THE LOAN DOCUMENTS.
ARTICLE V
RIGHTS AND REMEDIES OF LENDER
Section 5.1 Breach of Guaranteed Obligations. Upon an Event
of Default (as defined in any one of the Loan Documents), Lender shall
have the right to enforce Lender's rights, powers and remedies
hereunder or under any other agreement, document or instrument now or
hereafter evidencing, securing or otherwise relating to the Guaranteed
Obligations, in any order, and all rights, powers and remedies
available to Lender in such event shall be nonexclusive and cumulative
of all other rights, powers and remedies provided thereunder or
hereunder or by law or in equity.
Section 5.2 Exercise of Remedies. Guarantor hereby
authorizes and empowers Lender upon an Event of Default (as defined in
any one of the Loan Documents), at Lender's sole discretion, and
without notice to Guarantor, to exercise any right or remedy which
Lender may have, including a secured party sale, exercise of rights of
power of sale, acceptance of an assignment in lieu of a secured
party's sale, or exercise of remedies against personal property.
Section 5.3 Right to Purchase at Foreclosure. At any public
or private sale of any security or collateral for any of the
Guaranteed Obligations, whether by foreclosure sale or otherwise,
Lender may, in Lender's discretion, purchase all or any part of such
security or collateral so sold or offered for sale for Lender's own
account and may apply against the amount bid therefor all or any part
of the balance due Lender pursuant to the terms of the Notes or any
other Loan Document without prejudice to Lender's remedies hereunder
against Guarantor under the Guaranteed Obligations to the extent not
satisfied after such application. Lender shall have no obligation to
account to Guarantor for any collateral purchased by Lender after such
purchase.
Section 5.4 Partial Payments. If the Guaranteed Obligations
are partially paid by reason of the election of Lender to pursue any
of the remedies available to Lender, or if such Guaranteed Obligations
are otherwise partially paid, this Guaranty shall nevertheless remain
in full force and effect, and Guarantor shall remain liable for the
entire balance of the Guaranteed Obligations even though any rights
which Guarantor may have against Borrower may be destroyed or
diminished by the exercise of any such remedy.
Section 5.5 Independent Obligations. The obligations of
Guarantor hereunder are independent of the obligations of Borrower,
any members, partners, joint venturers, officers, directors,
shareholders, trustees or beneficiaries (as applicable) of Borrower or
any other person under the other Loan Documents, including the
obligations of any other guarantor, and a separate action or actions
may be brought and prosecuted against Guarantor, whether or not any
action is brought against Borrower or any of such other persons and
whether or not Borrower is joined in any such action or actions.
Section 5.6 Application of Payments. Guarantor hereby
authorizes Lender, without notice to Guarantor, to apply all payments
and credits received from Borrower or Guarantor or realized from any
security in such manner and in such priority as Lender in Lender's
sole judgment shall see fit to the Guaranteed Obligations or the
indebtedness, obligation and undertakings of the Guarantor hereunder.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Lender's Right to Transfer. Guarantor
acknowledges and agrees that Lender may, at any time and from time to
time, (a) sell, transfer, assign and convey all or any portion of
Lender's right, title and interest in and to the Loan, this Guaranty
and the Loan Documents, any guarantees given in connection with the
Loan and any collateral given to secure the Loan (b) grant or issue
one or more participations in any portion of Lender's right, title and
interest in and to the Loan, this Guaranty and the Loan Documents, any
guarantees given in connection with the Loan and any collateral given
to secure the Loan, or (c) consummate one or more private or public
securitizations of rated single or multi-class securities secured by
or evidencing ownership interests in all or any portion of the Loan,
this Guaranty and the Loan Documents, any guarantees given in
connection with the Loan and any collateral given to secure the Loan,
or a pool of assets that includes one or more or all of the foregoing.
Section 6.2 Disclosure of Information. Guarantor
acknowledges and agrees that Lender may forward to each prospective
purchaser, transferee, assignee, servicer, participant or investor in
the Loan, this Guaranty or the Loan Documents, all documents and
information which Lender now has or may hereafter acquire relating to
the Loan, the Guarantor and the Property, whether furnished by
Borrower or otherwise, as Lender determines necessary or desirable,
subject to usual restrictions concerning the confidentiality of such
information.
Section 6.3 Loan Servicing. Without limiting the foregoing
provisions of Section 6.2 above, Guarantor acknowledges that Lender
may, in its sole discretion, retain and replace any loan servicer in
connection with the Loan. Guarantor shall cooperate in good faith
with Lender and any such loan servicer regarding the servicing of the
Loan, including in connection with the replacement of any loan
servicer.
Section 6.4 Forbearance by Lender Not a Waiver. Any
forbearance by Lender in exercising any right or remedy under this
Guaranty, or otherwise afforded by applicable law, shall not be a
waiver of or preclude the exercise of any right or remedy. Lender's
acceptance of payment of any sum due under this Guaranty after the due
date of such payment shall not be a waiver of Lender's rights to
either require prompt payment when due of all other sums due under
this Guaranty or to declare a default for failure to make prompt
payment. Lender's receipt of any awards, proceeds, or damages under
the Mortgage shall not operate to cure or waive Guarantor's default in
payment of sums due under this Guaranty. With respect to all Loan
Documents, only waivers specifically and expressly made in writing by
Lender shall be effective against Lender. References in this Guaranty
or any other Loan Document, if any, to the "continuance of an Event of
Default" or words of similar import shall not be deemed or construed
to mean that Lender is agreeing to excuse or to extend the time by
which Borrower or Guarantor, as the case may be, may cure such Event
of Default or to delay or waive Lender's right to exercise any rights
or remedies to which Lender may be entitled by reason of such Event of
Default.
Section 6.5 Relationship. The relationship between Lender
and Guarantor shall be that of indemnitee-indemnitor only. No term in
this Guaranty or in the other Loan Documents and no course of dealing
between or among the parties shall be deemed to create any
relationship of agency, partnership or joint venture or any fiduciary
duty by Lender to any other party.
Section 6.6 Successors and Assigns Bound; Liability; and
Agents. The covenants and agreements contained in this Guaranty shall
bind, and the rights thereunder shall inure to, the respective
successors and assigns of Lender and successors and permitted assigns
of Guarantor. In exercising any rights under this Guaranty or any of
the other Loan Documents or taking any actions provided for herein or
therein, Lender may act through Lender's respective employees, agents
or independent contractors as authorized by Lender.
Section 6.7 Next Business Day. Whenever any performance
obligation shall be stated to be due or required to be satisfied on a
day other than a Business Day, such performance shall be made or
satisfied on the next succeeding Business Day. A "Business Day" under
this Section 6.7 shall be defined as a day other than a Saturday,
Sunday or other day on which commercial banks in New York City are
authorized or required by law to close.
Section 6.8 Time of Essence. Time is of the essence of this
Guaranty and the other Loan Documents and the performance of each of
the obligations, undertakings, covenants and agreements contained
herein and therein.
Section 6.9 Entire Agreement. This Guaranty and the other
Loan Documents embody the final, entire agreement between the parties
hereto and supersede any and all prior commitments, agreements,
representations and understandings, whether written or oral, relating
to the subject matter hereof and thereof and may not be contradicted
or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereof.
Section 6.10 Counterparts. To facilitate execution, this
Guaranty may be executed in as many counterparts as may be convenient
or required. The signature and acknowledgment of, or on behalf of,
each party, or the signature and acknowledgment of all persons
required to bind any party need not appear on each counterpart.
Signature pages and acknowledgment pages may be detached from this
Guaranty without impairing the legal effects of the signature(s)
thereon and attached to a counterpart original to form a fully-
executed original of this Guaranty. All counterparts shall be deemed
an original for all purposes and collectively constitute a single
instrument.
Section 6.11 Rights Cumulative. Each right and remedy of
Lender under this Guaranty, the Notes, the Mortgage and any other Loan
Documents, shall be in addition to every other right and remedy of
Lender and such rights and remedies may be enforced separately or in
any combination.
Section 6.12 Notices. Any notice given or required to be
given under this Guaranty shall be given and deemed delivered in
accordance with the Mortgage.
Section 6.13. Governing Law. This Guaranty shall be governed
by and construed in accordance with the laws of the State of New York,
but not including the choice of law rules thereof, and shall take
effect as a sealed instrument. The parties hereby submit to the
exclusive jurisdiction of the State and Federal Courts sitting in and
for the City and County of New York, New York in respect of any and
all actions arising under this Agreement, and waive any objections or
challenges to personal jurisdiction, venue or the convenience of forum
in any such actions brought in any such court.
[PAGE ENDS HERE - SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as
of the day and year first set forth above.
GUARANTOR:
POWER REIT, a Maryland real estate
Investment trust
By:_________________________________
Name: Arun Mittal
Title: Executive Vice President
