Exhibit 10.65





EXECUTION VERSION




EXHIBIT 10.65




FIRST AMENDMENT TO AMENDED AND RESTATED GUARANTY




THIS FIRST AMENDMENT (this “Amendment”) between David Lichtenstein (the “Guarantor”) and
Citicorp USA, Inc. (the “Lender”), is made as of October 31, 2008.



W I T N E S S E T H:




WHEREAS, PGRT ESH, Inc. (the “Borrower”) is a party to that certain Amended and Restated Loan
Agreement dated as of June 6, 2008 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the “Loan Agreement”) with the Lender, pursuant to which the Lender
agreed, among other things, to make a loan to the Borrower, subject to the terms and conditions set
forth in the Loan Agreement;



WHEREAS, the Guarantor has guaranteed the liabilities and obligations of the Borrower under
the terms and conditions of that certain Amended and Restated Guaranty dated June 6, 2008 (as
amended, amended and restated, supplemented or otherwise modified from time to time, the
“Guaranty”; capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Guaranty);



WHEREAS, the Loan Parties (as defined in the Loan Agreement) have requested and the Lender has
agreed that certain amendments be made to Loan Agreement in accordance with the terms of that
certain First Amendment to Loan Agreement dated as of October 31, 2008 among the Loan Parties (as
defined in the Loan Agreement) and the Lender (the “First Amendment to Loan Agreement”); and



WHEREAS, it is a condition to the effectiveness of the First Amendment to Loan Agreement that
the Guarantor shall have executed and delivered this Amendment.



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:



SECTION 1. Amendments to Guaranty. Effective as of the date hereof, the Guarantor and
the Lender hereby agree the Guaranty is amended as follows:




(a) Paragraph IV is hereby amended as follows:



(i) The first sentence of Paragraph IV is amended by adding “in addition to the covenants set
forth in Schedule 1 hereto,” after “the Undersigned will”.



(ii) Subparagraph (c)(B) is amended by adding “subject to the covenants set forth in Schedule
1,” before “$50,000,000”.



 


 









 





(iii) Subparagraph (o) is amended by deleting “(but after the aggregate outstanding principal
amount of the Loan is equal to or less than $60,000,000, if such a sale or refinancing occurs, the
Undersigned shall cause the Borrower to prepay the Loan by an amount equal to 50% of the Net Cash
Proceeds of such sale or refinancing)”.



(b) Exhibit A hereto is added as Schedule 1 to the Guaranty.



SECTION 2. Miscellaneous. (a) Upon the effectiveness of this Amendment, on and after
the date hereof, each reference in the Guaranty to “this Guaranty,” “hereunder,” “hereof,” “herein”
and words of like import, and such words or words of like import in each reference in the other
Loan Documents, shall mean and be a reference to the Guaranty as amended hereby.



(b) This Amendment shall apply only to the matter specifically referred to above and shall not
be deemed to constitute a waiver or modification by the parties hereto of any other provision of
the Guaranty or any other Loan Document or with respect to any other matter. Except as expressly
set forth above, the Guaranty and the other Loan Documents shall remain in full force and effect
and are hereby ratified and confirmed.



(c) This Amendment is governed by paragraph XI of the Guaranty and shall be deemed to be a
Loan Document. This Amendment may be executed in counterparts, each of which shall constitute an
original, but both of which taken together shall constitute one and the same instrument. Delivery
of an executed counterpart of a signature page to this Amendment by facsimile or other electronic
means shall be effective as delivery of a manually executed original counterpart hereof.



(d) This Amendment shall be governed by, and construed in accordance with, the laws of the
State of New York without giving effect to conflicts of law principles thereof.


 


 









 





IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment or caused this
Amendment to be executed by its proper and duly authorized officer as of the date first set forth
above.



	 	 	 	 	 	 	 
	 	 	Guarantor	 	 
	 
	 	 	 	 	 	 
	 	 	[s] David Lichtenstein	 	 
	 	 	 	 	 
	 	 	David Lichtenstein	 	 
	 
	 	 	 	 	 	 
	 	 	Lender	 	 
	 
	 	 	 	 	 	 
	 	 	CITICORP USA, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	[s] Diana Yusun	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Diana Yusun

Director	 	 






Signature Page to the DL Guaranty Amendment




 


 









 





Exhibit A




Schedule 1





	1.	 	At all times prior to, and for the two Business Days1 following, the date on which
the sale of ... [a certain property] ... is consummated ..., and notwithstanding the Guarantor’s
obligations under Paragraph IV(c) of the Guaranty, the Guarantor shall cause any of its
Affiliates or other affiliated Persons (as applicable, the “Account Owners”) to maintain with
Citibank, N.A. or its Affiliates (collectively, the “Deposit Institution”) cash deposits which
aggregate at least $30,000,000 (the “Liquidity Deposits”) less any amount of the Liquidity
Deposits received by the Lenders that has been applied to the Obligations with the consent of
the relevant Account Owner (a “Deposit Application”). Subject to paragraph XII, the Lender
agrees that any amount of Liquidity Deposits maintained with a Deposit Institution shall be
taken into account in calculating the amount of Unencumbered Liquid Assets maintained by the
Guarantors. Notwithstanding anything in the Loan Documents to the contrary, the Liquidity
Deposits shall in no way be Collateral for the Loan or other Obligations and will not be
subject to any levy, pledge, set-off or similar rights whatsoever of the Lender, the Deposit
Institution or any of their Affiliates. The Account Owners shall have the sole and absolute
right to, withdraw or transfer such funds from the Liquidity Deposits at any time whatsoever,
even if such withdrawal or transfer will result in the amount of the Liquidity Deposits to be
less than $30,000,000 (less any Deposit Application) and even if a Default or an Event of
Default has occurred or will occur and be continuing after such withdrawal or transfer, in
which case the Lender’s sole right for such failure to maintain Liquidity Deposits of at least
$30,000,000 (less any Deposit Application) shall be to declare an Event of Default under the
Loan Documents and, in addition to all its other rights and remedies, to proceed against the
Collateral for the Loan and the other Obligations, which shall not include the Liquidity
Deposits, and which Liquidity Deposits shall not in any manner be affected by such Event of
Default.






	2.	 	Within two Business Days after the ... [sale of a certain property] ... and at all times
thereafter, the Guarantor and Lightstone Holdings LLC (collectively, the “Guarantors”) shall
maintain, on a combined basis, but without duplication, Unencumbered Liquid Assets in an
amount not less than $65,000,000, of which at least $30,000,000 shall be owned solely by the
Guarantors and the affiliates of the Guarantor (the “Guarantors’ Affiliates”; which, for the
avoidance of doubt, shall be deemed to include the Borrower) and shall be maintained with the
Deposit Institution (the “Required Deposit”) less any amount of the Required Deposit received
by the Lender that has been applied to the Obligations, which shall occur only at the request
of or with the consent of the relevant Guarantors’ Affiliate (a “Deposit Application”).
Notwithstanding anything in the Loan Documents to the contrary, the Lender agrees that the
amount of the Required Deposit owned by the




 





	 	 	 
	1	 	Capitalized terms used in this Schedule and not
otherwise defined herein shall have the meanings assigned to such terms in
the Amendment to which this Schedule is attached or in the Loan Agreement
referred to therein.



 


 









 










	 	 	Guarantors’ Affiliates (the “Affiliates’ Deposit”)
shall in no way be Collateral for the Loan or the other Obligations and will not be subject to any levy,
pledge, set-off or similar rights whatsoever of the Lender, the Deposit Institution or any
of their Affiliates. The Guarantors’ Affiliates shall have the sole and absolute right to
withdraw or transfer the Affiliates’ Deposit from the Required Deposit at any time
whatsoever, even if such withdrawal or transfer will result in the amount of the Required
Deposit to be less than $30,000,000 (less any Deposit Application) and even if an Event of
Default has occurred or will occur and be continuing after such withdrawal or transfer, in
which case the Lender’s sole right for such failure to maintain the Required Deposit of at
least $30,000,000 (less any Deposit Application) shall be to declare an Event of Default
under the Loan Documents and, in addition to all its other rights and remedies, to proceed
against the Collateral for the Loan and the other Obligations, which shall not include the
Affiliates’ Deposits, and which Affiliates’ Deposits shall not in any manner be affected by
such Event of Default.






	3.	 	If the transaction contemplated ... [above] is not consummated ... [then in certain events a $6.0
million payment will be due on the Loan].





Certain information in this schedule has been omitted. The Company agrees to furnish supplementally
any of the omitted information to the Securities and Exchange Commission upon request.