dex102.htm


    UNCONDITIONAL GUARANTY OF
PAYMENT AND PERFORMANCE

     

        FOR AND IN
CONSIDERATION OF the sum of Ten and No/100 Dollars ($10.00) and other good and
valuable consideration paid or delivered to the undersigned 333 SOUTH ALAMEDA CORPORATION,
a Florida corporation (“Guarantor”), the receipt and sufficiency whereof are
hereby acknowledged by Guarantor, and for the purpose of seeking to induce KEYBANK NATIONAL ASSOCIATION,
a national banking association (hereinafter referred to as “Lender”, which term
shall also include each other Bank which may now be or hereafter become a party
to the “Loan Agreement” (as hereinafter defined), and shall also include any
such individual Bank acting as agent for all of the Banks), to extend credit or
otherwise provide financial accommodations to RICHARD MERUELO AS TRUSTEE OF THE
RICHARD MERUELO LIVING TRUST U/D/T dated September 18, 1989 and MERCO GROUP – ROOSEVELT BUILDING,
LLC, a California limited liability company (hereinafter referred to
collectively as “Borrowers”), which extension of credit and provision of
financial accommodations will be to the direct interest, advantage and benefit
of Guarantor, Guarantor does hereby absolutely, unconditionally and irrevocably
guarantee to Lender the complete payment and performance of the following
liabilities, obligations and indebtedness of Borrowers to Lender (hereinafter
referred to collectively as the “Obligations”):

     

    (a) the full
and prompt payment when due, whether by acceleration or otherwise, either before
or after maturity thereof, of the Notes made by Borrowers to the order of the
Lenders in the aggregate principal face amount of Thirty-Three Million and
No/100 Dollars ($33,000,000.00), together with interest as provided in the Notes
and together with any replacements, supplements, renewals, modifications,
consolidations, restatements, increases and extensions thereof (the “Initial
Note”); and

     

    (b) the full
and prompt payment when due, whether by acceleration or otherwise, either before
or after maturity thereof, of each other note as may be issued under that
certain Loan Agreement dated as of January 30, 2007, as amended by that
certain First Amendment to Loan Agreement and Amendment to Other Loan Documents
dated as of even date herewith (as the same may be subsequently modified,
amended, restated, consolidated, supplemented, extended or renewed, hereinafter
referred to as the “Loan Agreement”) (hereinafter referred to as the “Loan
Agreement”) among Borrowers, KeyBank, for itself and as agent, and the other
lenders now or hereafter a party thereto, together with interest as provided in
each such note, together with any replacements, supplements, renewals,
modifications, consolidations, restatements, increases, and extensions thereof
(the Initial Note and each of the notes described in this subparagraph (b) are
hereinafter referred to collectively as the “Note”); and

     

    (c) the full
and prompt payment and performance of any and all obligations of Borrowers to
Lender under the terms of the Loan Agreement, together with any replacements,
supplements, renewals, modifications, consolidations, restatements and
extensions thereof; and

     

    (d) the full
and prompt payment and performance of any and all obligations of Borrowers to
Lender under the Security Documents, together with any replacements,
supplements, renewals, modifications, consolidations, restatements and
extensions thereof; and

     

    (e) the full
and prompt payment and performance of any and all Hedge Obligations to the
holders of any Hedge Obligations; and

     

    
      
         

      

      
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    (f) the full
and prompt payment and performance of any and all other obligations of Borrowers
to Lender under any other agreements, documents or instruments now or hereafter
evidencing, securing or otherwise relating to the indebtedness evidenced by the
Note or the Loan Agreement or the Hedge Obligations (the Note, the Loan
Agreement, the Security Documents and said other agreements, documents and
instruments are hereinafter collectively referred to as the “Loan Documents” and
individually referred to as a “Loan Document”).

     

    1. Agreement to Pay and
Perform; Costs of Collection.  Guarantor does hereby agree that
following an Event of Default under the Loan Documents if the Note or the other
Obligations are not paid by Borrowers in accordance with their terms, or if any
and all sums which are now or may hereafter become due from Borrowers to Lender
under the Loan Documents or the other Obligations are not paid by Borrowers in
accordance with their terms, or if any and all other obligations of Borrowers to
Lender under the Note or of Borrowers under the other Loan Documents or
agreements relating to the Hedge Obligations are not performed by Borrowers, as
applicable, in accordance with their terms, Guarantor will immediately upon
demand make such payments and perform such obligations.  Guarantor
further agrees to pay Lender on demand all reasonable costs and expenses
(including court costs and reasonable attorneys’ fees and disbursements) paid or
incurred by Lender in endeavoring to collect the Obligations guaranteed hereby,
to enforce any of the Obligations of Borrowers guaranteed hereby, or any portion
thereof, or to enforce this Guaranty, and until paid to Lender, such sums shall
bear interest at the rate for overdue amounts set forth in the Loan Agreement
unless collection from Guarantor of interest at such rate would be contrary to
applicable law, in which event such sums shall bear interest at the highest rate
which may be collected from Guarantor under applicable law.

     

    2. Reinstatement of Refunded
Payments.  If, for any reason, any payment to Lender of any of
the Obligations guaranteed hereunder is required to be refunded by Lender to
Borrowers, or paid or turned over to any other person, including, without
limitation, by reason of the operation of bankruptcy, reorganization,
receivership or insolvency laws or similar laws of general application relating
to creditors’ rights and remedies now or hereafter enacted, Guarantor agrees to
pay to the Lender on demand an amount equal to the amount so required to be
refunded, paid or turned over (the “Turnover Payment”), the obligations of
Guarantor shall not be treated as having been discharged by the original payment
to Lender giving rise to the Turnover Payment, and this Guaranty shall be
treated as having remained in full force and effect for any such Turnover
Payment so made by Lender, as well as for any amounts not theretofore paid to
Lender on account of such obligations.

     

    3. Rights of Lender to Deal
with Collateral, Borrowers and Other Persons.  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 or any other Person or entity, either with or
without consideration:  release or surrender any lien or other
security of any kind or nature whatsoever held by it or by any person, firm or
corporation on its behalf or for its account, securing any indebtedness or
liability hereby guaranteed; substitute for any collateral so held by it, other
collateral of like kind, or of any kind; modify the terms of the Note or the
Loan Documents or the agreements relating to the Hedge Obligations; extend or
renew the Obligations for any period; grant releases, compromises and
indulgences with respect to the Obligations or the Loan Documents and to any
persons or entities now or hereafter liable thereunder or hereunder; release any
other guarantor, surety, endorser or accommodation party of the Note, the
Security Documents, any other Loan Documents or the agreements relating to the
Hedge Obligations; or take or fail to take any action of any type
whatsoever.  No such action which Lender shall take or fail to take in
connection with the Obligations or the Loan Documents, or any of them, or any
security for the payment of the indebtedness of Borrowers to Lender
or for the performance of any obligations or undertakings of Borrowers or
Guarantor, nor any course of dealing with Borrowers or any other person, shall
release Guarantor’s obligations hereunder, affect this Guaranty in any way or
afford Guarantor any recourse against Lender.  The provisions of this
Guaranty shall extend and be applicable to all replacements, supplements,
renewals, amendments, extensions, consolidations, restatements and modifications
of the Note, the Loan Documents or the agreements relating to the Hedge
Obligations, and any and all references herein to the Note, the Loan Documents
or the agreements relating to the Hedge Obligations shall be deemed to include
any such replacements, supplements, renewals, extensions, amendments,
consolidations, restatements or modifications thereof.  Without
limiting the generality of the foregoing, Guarantor acknowledges the terms of
Section 18.3 of the Loan Agreement and agrees that this Guaranty shall extend
and be applicable to each new or replacement note delivered by Borrowers
pursuant thereto without notice to or further consent from
Guarantor.

     

    
      
         

      

      
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    4. No Contest with Lender;
Subordination.  So long as any of the Obligations hereby
guaranteed remain unpaid or undischarged, 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 Borrowers in respect
of any liability of Guarantor to Borrowers or, in proceedings under federal
bankruptcy law or 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 Borrowers or the benefit of any other security for any of the
Obligations hereby guaranteed which, now or hereafter, Lender may hold or in
which it may have any share.  Guarantor hereby expressly waives any
right of contribution from or indemnity against Borrowers, whether at law or in
equity, arising from any payments made by Guarantor pursuant to the terms of
this Guaranty, and Guarantor acknowledges that Guarantor has no right whatsoever
to proceed against Borrowers for reimbursement of any such
payments.  In connection with the foregoing, Guarantor expressly
waives any and all rights of subrogation to Lender against Borrowers, and
Guarantor hereby waives any rights to enforce any remedy which Lender may have
against Borrowers and any rights to participate in any collateral for Borrowers’
obligations under the Loan Documents or the agreements relating to the Hedge
Obligations.  Guarantor hereby subordinates any and all indebtedness
of Borrowers now or hereafter owed to Guarantor to all indebtedness of Borrowers
to Lender, and agrees with Lender that (a) Guarantor shall not demand or accept
any payment from Borrowers on account of such indebtedness, (b) Guarantor shall
not claim any offset or other reduction of Guarantor’s obligations hereunder
because of any such indebtedness, and (c) Guarantor shall not take any action to
obtain any interest in any of the security described in and encumbered by the
Loan Documents or the agreements relating to the Hedge Obligations because of
any such indebtedness; provided, however, that, if Lender so requests, such
indebtedness shall be collected, enforced and received by Guarantor as trustee
for Lender and be paid over to Lender on account of the indebtedness of
Borrowers 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 or other portion of such outstanding indebtedness
shall have been reduced by such payment.

     

    
      
         

      

      
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    5. Waiver of
Defenses.  Guarantor hereby agrees that its obligations
hereunder shall not be affected or impaired by, and hereby waives and agrees not
to assert or take advantage of any right or defense based on:

     

    (a) (i) any
change in the amount, interest rate or due date or other term of any of the
obligations hereby guaranteed, (ii) any change in the time, place or manner of
payment of all or any portion of the obligations hereby guaranteed, (iii) any
amendment or waiver of, or consent to the departure from or other indulgence
with respect to, the Loan Agreement, any other Loan Document, or any other
document or instrument evidencing or relating to any obligations hereby
guaranteed, or (iv) any waiver, renewal, extension, addition, or supplement to,
or deletion from, or any other action or inaction under or in respect of, the
Loan Agreement, any of the other Loan Documents, or any other documents,
instruments or agreements relating to the obligations hereby guaranteed or any
other instrument or agreement referred to therein or evidencing any obligations
hereby guaranteed or any assignment or transfer of any of the
foregoing;

     

    (b) any
subordination of the payment of the obligations hereby guaranteed to the payment
of any other liability of the Borrowers or any other Person;

     

    (c) any act
or failure to act by Borrowers or any other Person which may adversely affect
Guarantor’s subrogation rights, if any, against Borrowers or any other Person to
recover payments made under this Guaranty;

     

    (d) any
nonperfection or impairment of any security interest or other Lien on any
collateral, if any, securing in any way any of the obligations hereby
guaranteed;

     

    (e) any
application of sums paid by the Borrowers or any other Person with respect to
the liabilities of Lender, regardless of what liabilities of the Borrowers
remain unpaid;

     

    (f) any
defense of Borrowers, including without limitation, the invalidity, illegality
or unenforceability of any of the Obligations;

     

    (g) either
with or without notice to Guarantor, any renewal, extension, modification,
amendment or another changes in the Obligations, including but not limited to
any material alteration of the terms of payment or performance of the
Obligations; or

     

    (h) any
statute of limitations in any action hereunder or for the collection of the Note
or for the payment or performance of any obligation hereby
guaranteed;

     

    (i) the
incapacity, lack of authority, death or disability of Borrowers 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
Borrowers or any other Person;

     

    (j) the
dissolution or termination of existence of Borrowers or any other
Person;

     

    (k) the
voluntary or involuntary liquidation, sale or other disposition of all or
substantially all of the assets of Borrowers or any other Person;

     

    
      
         

      

      
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    (l) the
voluntary or involuntary receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, assignment, composition, or
readjustment of, or any similar proceeding affecting, Borrowers or any other
Person, or any of Borrowers’ or any other Person’s properties or
assets;

     

    (m) the
damage, destruction, foreclosure or surrender of all or any part of the
Collateral;

     

    (n) the
failure of Lender to give notice of the existence, creation or incurring of any
new or additional indebtedness or obligation of Borrowers or of any action or
nonaction on the part of any other person whomsoever in connection with any
obligation hereby guaranteed;

     

    (o) any
failure or delay of Lender to commence an action against Borrowers or any other
Person, to assert or enforce any remedies against Borrowers under the Note or
the other Loan Documents or agreements relating to the Hedge Obligations, or to
realize upon any security;

     

    (p) any
failure of any duty on the part of Lender to disclose to Guarantor any facts it
may now or hereafter know regarding Borrowers (including, without limitation
Borrowers’ financial condition), any other Person, the Collateral, or any other
assets or liabilities of such Persons, whether such facts materially increase
the risk to Guarantor or not (it being agreed that Guarantor assumes
responsibility for being informed with respect to such
information);

     

    (q) failure
to accept or give notice of acceptance of this Guaranty by Lender;

     

    (r) failure
to make or give notice of presentment and demand for payment of any of the
indebtedness or performance of any of the obligations hereby
guaranteed;

     

    (s) failure
to make or give protest and notice of dishonor or of default to Guarantor or to
any other party with respect to the indebtedness or performance of obligations
hereby guaranteed;

     

    (t) any and
all other notices whatsoever to which Guarantor might otherwise be
entitled;

     

    (u) any lack
of diligence by Lender in collection, protection or realization upon any
collateral securing the payment of the indebtedness or performance of
obligations hereby guaranteed;

     

    (v) the
invalidity or unenforceability of the Note, or any of the other Loan Documents,
or any of the agreements relating to the Hedge Obligations, or any assignment or
transfer of the foregoing;

     

    (w) the
compromise, settlement, release or termination of any or all of the obligations
of Borrowers under the Note or the other Loan Documents or any of the agreements
relating to the Hedge Obligations;

     

    (x) any
transfer by Borrowers or any other Person of all or any part of the security
encumbered by the Loan Documents;

     

    
      
         

      

      
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    (y) the
failure of Lender to perfect any security or to extend or renew the perfection
of any security;

     

    (z) any and
all of the rights and defenses described in Section 2856(a) of the California
Civil Code;

     

    (aa) any and
all of the rights of subrogation, reimbursement, indemnification and
contribution and other rights and defenses that are or may become available to
Guarantor by reason of Sections 2787 to 2855 (inclusive), 2899 and 3433 of the
California Civil Code;

     

    (bb) except to
the extent prohibited by Section 9602 of the California Commercial Code, any and
all rights and defenses that Guarantor might otherwise have under the California
Commercial Code; or

     

    (cc) 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.

     

        Guarantor
understands that the exercise by Lender of certain rights and remedies may
affect or eliminate Guarantor’s right of subrogation against the Borrowers and
that Guarantor may therefore incur partially or totally nonreimbursable
liability hereunder.  Nevertheless, Guarantor hereby authorizes and
empowers Lender, its successors, endorsees and assigns, to exercise in its or
their sole discretion, any rights and remedies, or any combination thereof,
which may then be available, it being the purpose and intent of Guarantor that
the obligations hereunder shall be absolute, continuing, independent and
unconditional under any and all circumstances.  Notwithstanding any
other provision of this Guaranty to the contrary, Guarantor hereby waives and
releases any claim or other rights which Guarantor may now have or hereafter
acquire against the Borrowers or any other Person of all or any of the
obligations of Guarantor hereunder that arise from the existence or performance
of Guarantor’s obligations under this Guaranty or any of the other Loan
Documents, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification, any right to
participate in any claim or remedy of Lender against the Borrowers or any other
Person or any Collateral which Lender now has or hereafter acquires, whether or
not such claim, remedy or right arises in equity or under contract, statute or
common law, by any payment made hereunder or otherwise, including, without
limitation, the right to take or receive from the Borrowers, directly or
indirectly, in cash or other property or by setoff or in any other manner,
payment or security on account of such claim or other rights.

     

        Without
limitation on the generality of the other waivers contained in this Guaranty,
Guarantor hereby waives all rights and defenses arising out of an election of
remedies by the Lender, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed obligation,
has destroyed or otherwise impaired Guarantor’s rights of subrogation and
reimbursement against the principal (whether by the operation of any provision
of the California Code of Civil Procedure or otherwise).

     

    
      
         

      

      
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        In addition,
Guarantor hereby agrees that its obligations hereunder shall not be released,
diminished, impaired, reduced, dependent upon or affected by, and hereby waives
and agrees not to assert or take advantage of any defense based on, any one or
more of the following:  (i) the genuineness, validity, regularity or
enforceability of, or the existence of any default with respect to, the
Obligations, any security therefor, or any related instrument, documents,
obligation, transaction or matter; (ii) the nature, extent, condition, value or
continued existence of any security given in connection with the Obligations;
(iii) any action or failure to take action by any holder of the Obligations
under or with respect to this Guaranty or the Obligations, any security
therefor, or any related documents, transaction or matter; (iv) any other
dealings between any holder of the Obligations and Lender; (v) any exculpatory
language or provisions limiting or restricting Lender’s rights or remedies
against the Borrowers or any other Person under the Loan Documents; or (vi) any
claim by or on behalf of Borrowers of any credit or right of setoff with respect
to the Note or any of the Obligations.

     

    6. Guaranty of Payment and
Performance and Not of Collection.  This is a Guaranty of
payment and performance and not of collection.  The liability of
Guarantor under this Guaranty shall be primary, direct and immediate and not
conditional or contingent upon the pursuit of any remedies against Borrowers or
any other Person, nor against securities or liens available to Lender, its
successors, successors in title, endorsees or assigns.  Guarantor
hereby waives any right to require that an action be brought against Borrowers
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
Borrowers or any other Person.

     

    7. Rights and Remedies of
Lender.  In the event of an Event of Default under the Note or
the Loan Documents, or any of them, that is continuing (it being understood that
the Lender has no obligation to accept cure after an Event of Default occurs),
Lender shall have the right to enforce its rights, powers and remedies
thereunder or hereunder or under any other Loan Document, 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.  Accordingly,
Guarantor hereby authorizes and empowers Lender upon the occurrence of any Event
of Default under the Note or the Loan Documents, at its sole discretion, and
without notice to Guarantor, to exercise any right or remedy which Lender may
have, including, but not limited to, judicial foreclosure, exercise of rights of
power of sale, acceptance of a deed or assignment in lieu of foreclosure,
appointment of a receiver to collect rents and profits, exercise of remedies
against personal property, or enforcement of any assignment of leases, as to any
security, whether real, personal or intangible.  At any public or
private sale of any security or collateral for any of the Obligations guaranteed
hereby, whether by foreclosure or otherwise, Lender may, in its discretion,
purchase all or any part of such security or collateral so sold or offered for
sale for its own account and may apply against the amount bid therefor all or
any part of the balance due it pursuant to the terms of the Note or Security
Documents or any other Loan Document or agreements relating to the Hedge
Obligations without prejudice to Lender’s remedies hereunder against Guarantor
for deficiencies.  If the Obligations guaranteed hereby are partially
paid by reason of the election of Lender to pursue any of the remedies available
to Lender, or if such 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 Obligations guaranteed hereby even though
any rights which Guarantor may have against Borrowers or any other Person may be
destroyed or diminished by the exercise of any such remedy.

     

    
      
         

      

      
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    8. Application of
Payments.  Guarantor hereby authorizes Lender, without notice
to Guarantor, to apply all payments and credits received from Borrowers or from
Guarantor or realized from any security in such manner and in such priority as
Lender in its sole judgment shall see fit to the Obligations.

     

    9. Business Failure, Bankruptcy
or Insolvency.  In the event of the business failure of
Guarantor or if there shall be pending any bankruptcy or insolvency case or
proceeding with respect to Guarantor under federal bankruptcy law or any other
applicable 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 may 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 indebtedness
or other obligations of Borrowers guaranteed hereby 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 indebtedness or other obligations of Borrowers guaranteed hereby,
and to collect and receive any moneys or other property payable or deliverable
on any such claim.  Guarantor covenants and agrees that upon the
commencement of a voluntary or involuntary bankruptcy proceeding by or against
Borrowers, Guarantor shall not seek a supplemental stay or otherwise pursuant to
11 U.S.C. §105 or any other provision of the Bankruptcy Code, as amended, 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 by virtue of this
Guaranty or otherwise.

     

    10. Covenants of
Guarantor.  Guarantor hereby covenants and agrees with Lender
that until all indebtedness guaranteed hereby has been completely repaid and all
obligations and undertakings of Borrowers under, by reason of, or pursuant to
the Note and the other Loan Documents and the agreements relating to the Hedge
Obligations have been completely performed and Lender has no further obligation
to make Loans, Guarantor will comply with any and all covenants applicable to
Guarantor set forth in the Loan Agreement.  Guarantor will deliver or
cause to be delivered to the Lender from time to time such financial data and
information in the possession of the Guarantor regarding the Guarantor as the
Lender may reasonably request.

     

    11. Security and Rights of
Set-off.  Guarantor hereby grants to Lender, as security for
the full and prompt payment and performance of Guarantor’s obligations
hereunder, a continuing lien on and security interest in any and all securities
or other property belonging to Guarantor now or hereafter held by Lender and in
any and all deposits (general or specific, time or demand, provisional or final,
regardless of currency, maturity, or the branch of Lender where the deposits are
held) now or hereafter held by Lender and other sums credited by or due from
Lender to Guarantor or subject to withdrawal by Guarantor; and regardless of the
adequacy of any collateral or other means of obtaining repayment of such
obligations, during the continuance of any Event of Default under the Note or
the Loan Documents, Lender may at any time and without notice to Guarantor
set-off and apply the whole or any portion or portions of any or all such
deposits and other sums against amounts payable under this Guaranty, whether or
not any other person or persons could also withdraw money
therefrom.  Any security now or hereafter held by or for Guarantor and
provided by Borrowers, or by anyone on Borrowers’ behalf, in respect of
liabilities of Guarantor hereunder shall be held in trust for Lender as security
for the liabilities of Guarantor hereunder.

     

    
      
         

      

      
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    12. Changes in Writing; No
Revocation.  This Guaranty may not be changed orally, and no
obligation of Guarantor can be released or waived by Lender except as provided
in §27 of the Loan Agreement.  This Guaranty shall be irrevocable by
Guarantor until all indebtedness guaranteed hereby has been completely repaid
and all obligations and undertakings of Borrowers under, by reason of, or
pursuant to the Note and the Loan Documents and the agreements relating to the
Hedge Obligations have been completely performed and the Lenders have no further
obligation to advance Loans.

     

    13. Notices.  All
notices, demands or requests provided for or permitted to be given pursuant to
this Guaranty (hereinafter in this paragraph referred to as “Notice”) must be in
writing and shall be deemed to have been properly given or served by personal
delivery or by sending same by overnight courier or by depositing the same in
the United States mail, postpaid and registered or certified, return receipt
requested, at the addresses set forth below.  Each Notice shall be
effective upon being delivered personally or upon being sent by overnight
courier or upon being deposited in the United States Mail as
aforesaid.  The time period in which a response to any such Notice
must be given or any action taken with respect thereto, however, shall commence
to run from the date of receipt if personally delivered or sent by overnight
courier or, if so deposited in the United States Mail, the earlier of three (3)
Business Days following such deposit and the date of receipt as disclosed on the
return receipt.  Rejection or other refusal to accept or the inability
to deliver because of changed address of which no Notice was given shall be
deemed to be receipt of the Notice sent.  By giving at least fifteen
(15) days prior Notice thereof, Guarantor or Lender shall have the right from
time to time and at any time during the term of this Guaranty to change their
respective addresses and each shall have the right to specify as its address any
other address within the United States of America.  For the purposes
of this Guaranty:

     

    The
address of Lender is:

    


    KeyBank
National Association, as Agent

    127
Public Square

    Cleveland,
Ohio  44114-1306

    Attn:
Real Estate Capital Services

    


    with a
copy to:

    


    KeyBank
National Association

    127
Public Square

    Cleveland,
Ohio  44114-1306

    Attn: Jason
Weaver

     

    The
address of Guarantor is:

     

         333 South Alameda
Corporation 

         761 Terminal
Street, Building 1

         Los Angeles,
California 90021

    


    
      
         

      

      
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    14. Governing
Law.  GUARANTOR ACKNOWLEDGES AND AGREES
THAT THIS GUARANTY AND THE OBLIGATIONS OF GUARANTOR HEREUNDER SHALL BE GOVERNED
BY AND INTERPRETED AND DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.

     

    15. CONSENT TO JURISDICTION;
WAIVERS.  GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY (A)
SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF CALIFORNIA OVER ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, AND
(B) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS OF ANY STATE (I) TO
THE RIGHT, IF ANY, TO TRIAL BY JURY(LENDER HAVING ALSO WAIVED SUCH RIGHT TO
TRIAL BY JURY), (II) TO OBJECT TO JURISDICTION WITHIN THE STATE OF CALIFORNIA OR
VENUE IN ANY PARTICULAR FORUM WITHIN THE STATE OF CALIFORNIA, AND (III) TO THE
RIGHT, IF ANY, TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN OR IN ADDITION TO ACTUAL
DAMAGES.  EACH LENDER IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND
ALL RIGHTS UNDER THE LAWS OF ANY STATE TO THE RIGHT, IF ANY, TO TRIAL BY
JURY.  GUARANTOR AGREES THAT, IN ADDITION TO ANY METHODS OF SERVICE OF
PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH
SUIT, ACTION OR PROCEEDING MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, DIRECTED TO GUARANTOR AT THE ADDRESS SET FORTH IN PARAGRAPH
13 ABOVE, AND SERVICE SO MADE SHALL BE COMPLETE FIVE (5) DAYS AFTER THE SAME
SHALL BE SO MAILED.  NOTHING CONTAINED HEREIN, HOWEVER, SHALL PREVENT
LENDER FROM BRINGING ANY SUIT, ACTION OR PROCEEDING OR EXERCISING ANY RIGHTS
AGAINST ANY SECURITY AND AGAINST GUARANTOR PERSONALLY, AND AGAINST ANY PROPERTY
OF GUARANTOR, WITHIN ANY OTHER STATE.  INITIATING SUCH SUIT, ACTION OR
PROCEEDING OR TAKING SUCH ACTION IN ANY STATE SHALL IN NO EVENT CONSTITUTE A
WAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS OF THE STATE OF
CALIFORNIA SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF GUARANTOR AND LENDER
HEREUNDER OR OF THE SUBMISSION HEREIN MADE BY GUARANTOR TO PERSONAL JURISDICTION
WITHIN THE STATE OF CALIFORNIA.  GUARANTOR HEREBY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.  GUARANTOR CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
ACKNOWLEDGE THAT LENDER HAS BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE
OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS CONTAINED IN THIS PARAGRAPH 15.  GUARANTOR
ACKNOWLEDGES THAT THEY HAVE HAD AN OPPORTUNITY TO REVIEW THIS PARAGRAPH 15 WITH
THEIR LEGAL COUNSEL AND THAT GUARANTOR AGREES TO THE FOREGOING AS THEIR FREE,
KNOWING AND VOLUNTARY ACT.

     

    
      
         

      

      
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    16. Successors and
Assigns.  The provisions of this Guaranty shall be binding upon
Guarantor and his respective heirs, successors, successors in title, legal
representatives, and assigns, and shall inure to the benefit of Lender, its
successors, successors in title, legal representatives and
assigns.  Guarantor shall not assign or transfer any of its rights or
obligations under this Guaranty without the prior written consent of
Lender.

     

    17. Assignment by
Lender.  This Guaranty is assignable by Lender in whole or in
part in conjunction with any assignment of the Obligations or portions thereof,
and any assignment hereof or any transfer or assignment of the Obligations or
portions thereof by Lender shall operate to vest in any such assignee the rights
and powers, in whole or in part, as appropriate, herein conferred upon and
granted to Lender.

     

    18. Severability.  If
any term or provision of this Guaranty shall be determined to be illegal or
unenforceable, all other terms and provisions hereof shall nevertheless remain
effective and shall be enforced to the fullest extent permitted by
law.

     

    19. Disclosure.  Guarantor
agrees that in addition to disclosures made in accordance with standard banking
practices, any Lender may disclose information obtained by such Lender pursuant
to this Guaranty to assignees or participants and potential assignees or
participants hereunder subject to the terms of the Loan Agreement.

     

    20. No Unwritten
Agreements.  THIS GUARANTY REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

     

    21. Time of the
Essence.  Time is of the essence with respect to each and every
covenant, agreement and obligation of Guarantor under this
Guaranty.

     

    22. Ratification.  Guarantor
does hereby restate, reaffirm and ratify each and every warranty and
representation regarding Guarantor set forth in the Loan Agreement as if the
same were more fully set forth herein.

     

    23. Counterparts.  This
Guaranty and any amendment hereof may be executed in several counterparts and by
each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute one
instrument.  In proving this Guaranty it shall not be necessary to
produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.

     

    
      
         

      

      
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    24. Termination of
Guaranty.  Without modifying or limiting any provision of this
Guaranty or any agreement contained herein, this Guaranty shall continue in
effect until an amount equal to FIFTEEN MILLION AND NO/100 DOLLARS ($15,000,000)
is paid to Agent, in connection with any sale, transfer, assignment, conveyance,
option or other disposition of, or any pledge, mortgage, encumbrance, financing
or refinancing of the South Alameda Property for application by Agent in
satisfaction of the Obligations in such order as Agent determines in its sole
discretion, and are not subject to any bankruptcy preference period or any other
disgorgement, or until all of the Obligations and all of the obligations of
Guarantor to Lender under this Guaranty are fully and finally paid, performed
and discharged in accordance with their terms (and without regard to any
extension, reduction or other alteration thereof in any proceeding under the
Bankruptcy Code, or any other debtor relief law) and are not subject to any
bankruptcy preference period or any other disgorgement.

     

    25. Sale or Refinance of the
South Alameda Property.

     

    (a) Guarantor
acknowledges and agrees that an amount equal to FIFTEEN MILLION AND NO/100
DOLLARS ($15,000,000) paid to Guarantor, or its shareholders, in connection with
any sale, transfer, assignment, conveyance, option or other disposition
(including, without limitation, disposition by means of a foreclosure) of, or
any pledge, mortgage, encumbrance, financing or refinancing of the South Alameda
Property shall be paid directly by Guarantor to Agent for application by Agent
in satisfaction of the Obligations in such order as Agent determines in its sole
discretion. Guarantor further agrees not to sell, transfer, assign, convey,
grant an option or otherwise dispose (including, without limitation, disposition
by means of a foreclosure) of, or pledge, mortgage, encumber, finance or
refinance the South Alameda Property unless any such transaction will result in
Guarantor receiving proceeds sufficient to make a payment to Guarantor in an
amount equal to $15,000,000 pursuant to this Paragraph 25(a).

     

    (b) Guarantor
represents and warrants to, and covenants with, Lender as follows:

     

    (1)           As
of the date hereof, and after giving effect to the transactions contemplated by
this Guaranty, Guarantor is not insolvent on a balance sheet basis, the sum of
Guarantor’s assets exceeds the sum of Guarantor’s liabilities, Guarantor is able
to pay its debts as they become due, and Guarantor has sufficient capital to
carry on its business.  

     

    (2)           As
of the date hereof, Guarantor has no Indebtedness and the South Alameda Property
is not subject to any Liens, except for the Indebtedness and Liens described on
Exhibit A
attached hereto. Guarantor covenants and agrees that until such time as the
payment contemplated by Paragraph 25(a) hereof is made, except for any
Indebtedness and any Lien described on Exhibit A, and except for any Lien for
real property taxes and assessments, Guarantor shall not incur any Indebtedness
and shall create any Lien on the South Alameda Property without the prior
written consent of Lender being first obtained, which consent may be withheld in
Lender’s sole discretion.

     

    (c) Guarantor
acknowledges that Homero Meruelo and Belinda Meruelo (the shareholders of
Guarantor) have executed an Assignment of Interests in favor of Agent of even
date herewith to secure the Obligations. Agent agrees to cause the full release
and/or cancellation of such Assignment of Interests upon Agent’s receipt of the
sum of FIFTEEN MILLION AND NO/100 DOLLARS ($15,000,000.00) in connection with
any sale, transfer, assignment, conveyance, option or other disposition of, or
any pledge, mortgage, encumbrance, financing or refinancing of the South Alameda
Property.

     

    
      
         

      

      
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    (d) In the
event that Guarantor shall receive any payments made under or with respect to
the sale, transfer, assignment, conveyance, option or other disposition
(including disposition by means of a foreclosure) of, or any pledge, mortgage,
encumbrance, financing or refinancing of the South Alameda Property, Guarantor
shall hold all such payments in trust for Agent, will not commingle such
payments with other funds of Guarantor, and will immediately pay and deliver in
kind, the amount required by subsection (a) above directly to Agent for
application by Agent in satisfaction of the Obligations in such order as Agent
determines in its sole discretion. Upon execution by Guarantor of the South
Alameda Contract, Guarantor shall execute irrevocable instructions to the escrow
agent for the purchase and sale transaction, directing such escrow agent to pay
to Agent the amounts required to be paid pursuant to subsection (a) above, which
payment shall be deemed to have been made by Guarantor pursuant to this
Guaranty.

     

    26. Definitions.  All
terms used herein and not otherwise defined herein shall have the meanings set
forth in the Loan Agreement.

     

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    IN
WITNESS WHEREOF, Guarantor has executed this Guaranty under seal as of this 10th
day of July, 2008.

     

     

    GUARANTOR:

     

    
      
        	 	333
      SOUTH ALAMEDA CORPORATION, a Florida
      corporation	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Richard
      Meruelo	 
	 	 	Name:
      Richard Meruelo	 
	 	 	Title:
      President	 
	 	 	 	 


      

    

    


     

    
      
         

      

      
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          Lender joins in the execution of
this Guaranty for the sole and limited purpose of evidencing its agreement to
waiver of the right to trial by jury contained in Paragraph 15 hereof and
Section 25 of the Loan Agreement.

     

     

    
      
        	 	KEY
      BANK NATIONAL ASSOCIATION, as
      Agent	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Jason
      R. Weaver	 
	 	 	Name:
      Jason R Weaver	 
	 	 	Title:
      Senior Vice President 	 
	 	 	 	 


      

    

     

     

     

    
 

     

    
      
         

      

      
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    EXHIBIT
A

     

    


     

    A.           LIENS:
There are no Liens against the South Alameda Property other than the Liens
described in Schedule B, Section Two of that certain First American Title
Insurance Company Commitment No. NCS-335134-LA2 dated May 23, 2008.

     

    B.           INDEBTEDNESS:
The Corporation has no Indebtedness other than Indebtedness secured by the Liens
described in subsection (A) above, and the obligation of the Corporation to
Meruelo Maddux - 2000 San Fernando Road LLC pursaunt to that Closing Agreement
dated May 27, 2008, a true and correct copy of which has been delivered by
Guarantor to Lender.