**Exhibit 10.31**

 

**GUARANTY AGREEMENT**

 

This GUARANTY AGREEMENT (this “Guaranty”) is made asof July 6, 2005, by GRIFFIN LAND & NURSERIES, INC., a Delawarecorporation (“Guarantor”), in favor of FIRST SUNAMERICA LIFE INSURANCE COMPANY,a New York corporation (“Lender”).

 

1.             Loan and Note.  This Guaranty is executed in connection witha $12,700,000.00 loan (“Loan”) made by Lender to Tradeport Development II,LLC, a Connecticut limited liability company (“Borrower”).  The Loan is (a) evidenced by aPromissory Note of even date herewith in the original principal amount of theLoan (“Note”), and (b) secured by, among other things, a Mortgage Deed,Security Agreement, Fixture Filing, Financing Statement and Assignment ofLeases and Rents of even date herewith granted by Borrower for the benefit ofLender (“Mortgage,” and, together with the Note and all other documentsexecuted by Borrower evidencing and/or securing the Loan, “Loan Documents”)covering certain real property commonly known as 75 International Driveand 758 Rainbow Road, Windsor, Connecticut, and more particularlydescribed in the Mortgage.  Allcapitalized terms used herein without definition shall have the meanings givento such terms in the Mortgage.

 

2.             Purpose andConsideration.  The execution and deliveryof this Guaranty by Guarantor is a condition to Lender’s willingness to makethe Loan to Borrower, is made in order to induce Lender to make the Loan, andis made in recognition that Lender will be relying upon this Guaranty in makingthe Loan and performing any other obligations it may have under the LoanDocuments.  Guarantor has a significantownership interest in Borrower, and, accordingly, acknowledges that Guarantorwill receive material direct and indirect benefit from Lender making the Loanto Borrower.

 

3.             Guaranty.  Guarantor hereby guarantees absolutely,primarily, and irrevocably, payment and performance of all obligations forwhich Borrower has, or incurs in the future, personal liability to Lender underSection 18 of the Note (collectively, the “Obligations”).

 

4.             Guaranty isIndependent and Absolute.  Theobligations of Guarantor hereunder are independent of the obligations ofBorrower and of any other person who may become liable with respect to theObligations.  Guarantor is jointly andseverally liable with Borrower and with any other guarantor for the full andtimely payment and performance of all of the Obligations.  Guarantor expressly agrees that a separateaction or actions may be brought and prosecuted against Guarantor (or any otherguarantor), whether or not any action is brought against Borrower, any otherguarantor or any other person for any Obligations guaranteed hereby and whetheror not Borrower, any other guarantor or any other persons are joined in anyaction against Guarantor.  Guarantorfurther agrees that Lender shall have no obligation to proceed against anysecurity for the Obligations prior to enforcing this Guaranty againstGuarantor, and that Lender may pursue or omit to pursue any and all rights andremedies Lender has against any person or with respect to any security in anyorder or simultaneously or in any other manner. All rights of Lender and all obligations of Guarantor hereunder shall beabsolute and unconditional

 

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irrespective of(a) any lack of validity or enforceability of the Note or any other LoanDocument, and (b) any other circumstances which might otherwise constitutea defense available to, or a discharge of Borrower in respect of, theObligations.

 

5.             Authorizations toLender.  Guarantor authorizes Lender,without notice or demand and without affecting Guarantor’s liability hereunder,from time to time (a) to renew, extend, accelerate or otherwise change thetime for payment of, change, amend, alter, cancel, compromise or otherwisemodify the terms of the Note, including increasing the rate or rates ofinterest thereunder agreed to by Borrower, and to grant any indulgences,forbearances, or extensions of time; (b) to renew, extend, change, amend,alter, cancel, compromise or otherwise modify any of the terms, covenants,conditions or provisions of any of the Loan Documents or any of theObligations; (c) to apply any security and direct the order or manner ofsale thereof as Lender, in Lender’s discretion, may determine; (d) toproceed against Borrower, Guarantor or any other guarantor with respect to anyor all of the Obligations without first foreclosing against any securitytherefor; (e) to exchange, release, surrender, impair or otherwise deal inany manner with, or waive, release or subordinate any security interest in, anysecurity for the Obligations; (f) to release or substitute Borrower, anyother guarantors, endorsers, or other parties who may be or become liable withrespect to the Obligations, without any release being deemed made of Guarantoror any other such person; and (g) to accept a conveyance or transfer toLender of all or any part of any security in partial satisfaction of theObligations, or any of them, without releasing Borrower, Guarantor, or anyother guarantor, endorser or other party who may be or become liable withrespect to the Obligations, from any liability for the balance of theObligations.

 

6.             Application ofPayments Received by Lender.  Anysums of money Lender receives from or for the account of Borrower may be appliedby Lender to reduce any of the Obligations or any other liability of Borrowerto Lender, as Lender in Lender’s discretion deems appropriate; provided,however, if Lender receives any amounts from Guarantor in response to Lender’sdemand for payment of any of the Obligations, the Obligations will be deemed tohave been reduced (or eliminated, as the case may be, but subject to **Section 15** below) by the amount paid by Guarantor,regardless of how Lender applies such Funds.

 

7.             Waivers byGuarantor.  In addition to allwaivers expressed in any of the Loan Documents, all of which are incorporatedherein by Guarantor, Guarantor hereby waives (a) presentment, demand,protest and notice of protest, notice of dishonor and of non-payment, notice ofacceptance of this Guaranty, and diligence in collection; (b) notice ofthe existence, creation, or incurring of any new or additional Obligationsunder or pursuant to any of the Loan Documents; (c) any right to requireLender to proceed against, give notice to, or make demand upon Borrower;(d) any right to require Lender to proceed against or exhaust any securityor to proceed against or exhaust any security in any particular order;(e) any right to require Lender to pursue any remedy of Lender;(f) any right to direct the application of any security held by Lender;(g) any right of subrogation, any right to enforce any remedy which Lendermay have against Borrower, any right to participate in any security now orhereafter held by Lender and any right to reimbursement from the Borrower foramounts paid to Lender by Guarantor until all of the Secured Obligations (asdefined in the Mortgage) have been satisfied; (h) benefits, if any, ofGuarantor under any anti-deficiency statutes or single-action legislation; (i) anydefense arising out of any disability or other defense of Borrower, includingbankruptcy, dissolution,

 

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liquidation,cessation, impairment, modification, or limitation, from any cause, of anyliability of Borrower, or of any remedy for the enforcement of such liability;(j) any statute of limitations affecting the liability of Guarantorhereunder; (k) any right to plead or assert any election of remedies byLender; and (l) any other defenses available to a surety under applicablelaw.

 

8.             Subordination byGuarantor.  Guarantor hereby agreesthat any indebtedness of Borrower to Guarantor, whether now existing orhereafter created, shall be and is hereby subordinated to the indebtedness ofBorrower to Lender under the Loan Documents. At any time during which a Default or Event of Default shall exist,Guarantor shall not accept or seek to receive any amounts from Borrower onaccount of any indebtedness of Borrower to Guarantor.

 

9.             BankruptcyReimbursements.  Guarantor herebyagrees that if all or any part of the Obligations paid to Lender by Borrower orany other party liable for payment and satisfaction of the Obligations (otherthan Guarantor) are recovered from Lender in any bankruptcy proceeding,Guarantor shall reimburse Lender immediately on demand for all amounts of suchObligations so recovered from Lender, together with interest thereon at thedefault rate set forth in the Note from the date such amounts are so recovereduntil repaid in full to Lender, and, for this purpose, this Guaranty shallsurvive repayment of the Loan.

 

10.           Jurisdiction andVenue.  Guarantor hereby submitsitself to the jurisdiction and venue of any federal court located in the Stateof Connecticut or any state court located in Hartford County, Connecticut inconnection with any action or proceeding brought for enforcement of Guarantor’sobligations hereunder, and hereby waives any and all personal or other rightsunder the law of any other country or state to object to jurisdiction withinsuch locations for purposes of litigation to enforce such obligations.  Guarantor agrees that service of process uponGuarantor shall be complete upon delivery thereof in any manner permitted bylaw.

 

11.           Financial Statements.  For so long as any of the Obligations remainunsatisfied, Guarantor shall furnish to Lender such financial informationrequired to be furnished by Guarantor pursuant to Section 4.12 of theMortgage.

 

12.           Assignability.  This Guaranty shall be binding upon Guarantorand Guarantor’s heirs, representatives, successors, and assigns and shall inureto the benefit of Lender and Lender’s successors and assigns.  This Guaranty shall follow the Note and otherLoan Documents which are for the benefit of Lender, and, in the event the Note andother Loan Documents are negotiated, sold, transferred, assigned, or conveyedby Lender in whole or in part, this Guaranty shall be deemed to have been sold,transferred, assigned, or conveyed by Lender to the holder or holders of theNote and other Loan Documents, with respect to the Obligations containedtherein, and such holder or holders may enforce this Guaranty as if such holderor holders had been originally named as Lender hereunder.

 

13.           Payment of Costs ofEnforcement.  In the event any actionor proceeding is brought to enforce this Guaranty, Guarantor shall pay allactual, out-of-pocket costs and expenses of Lender in connection with suchaction or proceeding, including, without limitation, all attorneys’ feesincurred by Lender.

 

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14.           Notices.  Any notice required or permitted to be givenby Guarantor or Lender under this Guaranty shall be in writing and will bedeemed given (a) upon personal delivery, (b) on the first businessday after receipted delivery to a courier service which guaranteesnext-business day delivery, or (c) on the third business day aftermailing, by registered or certified United States mail, postage prepaid, in anycase to the appropriate party at its address set forth below:

 

Ifto Guarantor:

 

Griffin Land & Nurseries, Inc.

90 Salmon Brook Street

Granby, Connecticut 06035

Attention: Mr. Frederick Danziger

 

Ifto Lender:

 

First SunAmerica Life Insurance Company

c/o AIG Global Investment Corp.

1 SunAmerica Center, 38th Floor

Century City

Los Angeles, California 90067-6022

Attn: Director-Mortgage Lending and Real Estate

 

Either party may change such party’s address fornotices or copies of notices by giving notice to the other party in accordancewith this **Section 14**.

 

15.           Reinstatement ofObligations.  If at any time all orany part of any payment made by Guarantor or received by Lender from Guarantorunder or with respect to this Guaranty is or must be rescinded or returned forany reason whatsoever (including, but not limited to, the insolvency,bankruptcy or reorganization of any Guarantor), then the obligations ofGuarantor hereunder shall, to the extent of the payment rescinded or returned,and to the extent permitted by law, be deemed to have continued in existence, notwithstandingsuch previous payment made by Guarantor, or receipt of payment by Lender, andthe obligations of Guarantor hereunder shall continue to be effective or bereinstated, as the case may be, as to such payment, all as though such previouspayment by Guarantor had never been made.

 

16.           Severability ofProvisions.  If any provision hereofor of any other Loan Document shall, for any reason and to any extent, beinvalid or unenforceable, then the remainder of the document in which suchprovision is set forth, the application of the provision to other persons,entities or circumstances, and any other document referred to herein shall notbe affected thereby but instead shall be enforceable to the maximum extentpermitted by law.

 

17.           Joint and Several Obligation.  If Guarantor is more than one person orentity, then (a) all persons or entities comprising Guarantor are jointlyand severally liable for all of the Obligations; (b) all representations,warranties, and covenants made by Guarantor shall be deemed representations,warranties, and covenants of each of the persons or entities comprising

 

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Guarantor;(c) any breach, default or Event of Default by any of the persons orentities comprising Guarantor hereunder shall be deemed to be a breach,default, or Event of Default of Guarantor; and (d) any reference hereincontained to the knowledge or awareness of Guarantor shall mean the knowledgeor awareness of any of the persons or entities comprising Guarantor.

 

18.           Waiver.  Neither the failure of Lender to exercise anyright or power given hereunder or to insist upon strict compliance by Borrower,Guarantor, any other guarantor, or any other person with any of its obligationsset forth herein or in any of the Loan Documents, nor any practice of Borroweror Guarantor at variance with the terms hereof or of any Loan Documents, shallconstitute a waiver of Lender’s right to demand strict compliance with theterms and provisions of this Guaranty.

 

19.           Certain Waivers.  GUARANTOR, BY SIGNING THIS GUARANTY, ANDLENDER, BY ACCEPTING IT, EACH KNOWINGLY, IRREVOCABLY, VOLUNTARILY ANDINTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OFANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS GUARANTY, OR ARISING OUTOF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY LOAN DOCUMENT, OR ANYCOURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) ORACTIONS OF ANY PARTY HERETO.  THISPROVISION IS A MATERIAL INDUCEMENT FOR LENDER AND GUARANTOR ENTERING INTO THELOAN.

 

20.           Applicable Law.  This Guaranty and the rights and obligationsof the parties hereunder shall be governed by and interpreted in accordancewith the laws of the State of Connecticut.

 

**[Balance of Page Intentionally Left Blank]**

 

IN WITNESS WHEREOF, Guarantor has executed thisGuaranty as of the day and year first above written.

 

 
|   | GUARANTOR:                                                  |
|--------|-------------------------------------------------------------|
|   |                                                        |
|   | GRIFFIN LAND & NURSERIES, INC., a  Delaware corporation |
|   |                                                        |
|   | By:                                                         | /s/ Anthony Galici |   |
|   |                                                        |
|   | Name:                                                       | Anthony Galici |   |
|   |                                                        |
|   | Title:                                                      | Vice President |   |
|        |                                                             |  |  |  |  |  |  |

 

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