Exhibit 10.31


 


GUARANTY AGREEMENT


 


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


 


1.             Loan and Note.  This Guaranty is executed in connection with
a $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 a
Promissory Note of even date herewith in the original principal amount of the
Loan (“Note”), and (b) secured by, among other things, a Mortgage Deed,
Security Agreement, Fixture Filing, Financing Statement and Assignment of
Leases and Rents of even date herewith granted by Borrower for the benefit of
Lender (“Mortgage,” and, together with the Note and all other documents
executed by Borrower evidencing and/or securing the Loan, “Loan Documents”)
covering certain real property commonly known as 75 International Drive
and 758 Rainbow Road, Windsor, Connecticut, and more particularly
described in the Mortgage.  All
capitalized terms used herein without definition shall have the meanings given
to such terms in the Mortgage.


 


2.             Purpose and
Consideration.  The execution and delivery
of this Guaranty by Guarantor is a condition to Lender’s willingness to make
the Loan to Borrower, is made in order to induce Lender to make the Loan, and
is made in recognition that Lender will be relying upon this Guaranty in making
the Loan and performing any other obligations it may have under the Loan
Documents.  Guarantor has a significant
ownership interest in Borrower, and, accordingly, acknowledges that Guarantor
will receive material direct and indirect benefit from Lender making the Loan
to Borrower.


 


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


 


4.             Guaranty is
Independent and Absolute.  The
obligations of Guarantor hereunder are independent of the obligations of
Borrower and of any other person who may become liable with respect to the
Obligations.  Guarantor is jointly and
severally liable with Borrower and with any other guarantor for the full and
timely payment and performance of all of the Obligations.  Guarantor expressly agrees that a separate
action or actions may be brought and prosecuted against Guarantor (or any other
guarantor), whether or not any action is brought against Borrower, any other
guarantor or any other person for any Obligations guaranteed hereby and whether
or not Borrower, any other guarantor or any other persons are joined in any
action against Guarantor.  Guarantor
further agrees that Lender shall have no obligation to proceed against any
security for the Obligations prior to enforcing this Guaranty against
Guarantor, and that Lender may pursue or omit to pursue any and all rights and
remedies Lender has against any person or with respect to any security in any
order or simultaneously or in any other manner. 
All rights of Lender and all obligations of Guarantor hereunder shall be
absolute and unconditional


 





















 


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


 


5.             Authorizations to
Lender.  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 the
time for payment of, change, amend, alter, cancel, compromise or otherwise
modify the terms of the Note, including increasing the rate or rates of
interest 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 the
Obligations; (c) to apply any security and direct the order or manner of
sale thereof as Lender, in Lender’s discretion, may determine; (d) to
proceed against Borrower, Guarantor or any other guarantor with respect to any
or all of the Obligations without first foreclosing against any security
therefor; (e) to exchange, release, surrender, impair or otherwise deal in
any manner with, or waive, release or subordinate any security interest in, any
security for the Obligations; (f) to release or substitute Borrower, any
other guarantors, endorsers, or other parties who may be or become liable with
respect to the Obligations, without any release being deemed made of Guarantor
or any other such person; and (g) to accept a conveyance or transfer to
Lender of all or any part of any security in partial satisfaction of the
Obligations, or any of them, without releasing Borrower, Guarantor, or any
other guarantor, endorser or other party who may be or become liable with
respect to the Obligations, from any liability for the balance of the
Obligations.


 


6.             Application of
Payments Received by Lender.  Any
sums of money Lender receives from or for the account of Borrower may be applied
by Lender to reduce any of the Obligations or any other liability of Borrower
to Lender, as Lender in Lender’s discretion deems appropriate; provided,
however, if Lender receives any amounts from Guarantor in response to Lender’s
demand for payment of any of the Obligations, the Obligations will be deemed to
have 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 by
Guarantor.  In addition to all
waivers expressed in any of the Loan Documents, all of which are incorporated
herein by Guarantor, Guarantor hereby waives (a) presentment, demand,
protest and notice of protest, notice of dishonor and of non-payment, notice of
acceptance of this Guaranty, and diligence in collection; (b) notice of
the existence, creation, or incurring of any new or additional Obligations
under or pursuant to any of the Loan Documents; (c) any right to require
Lender to proceed against, give notice to, or make demand upon Borrower;
(d) any right to require Lender to proceed against or exhaust any security
or 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 Lender
may have against Borrower, any right to participate in any security now or
hereafter held by Lender and any right to reimbursement from the Borrower for
amounts paid to Lender by Guarantor until all of the Secured Obligations (as
defined in the Mortgage) have been satisfied; (h) benefits, if any, of
Guarantor under any anti-deficiency statutes or single-action legislation; (i) any
defense arising out of any disability or other defense of Borrower, including
bankruptcy, dissolution,


 


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


 


8.             Subordination by
Guarantor.  Guarantor hereby agrees
that any indebtedness of Borrower to Guarantor, whether now existing or
hereafter created, shall be and is hereby subordinated to the indebtedness of
Borrower 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 on
account of any indebtedness of Borrower to Guarantor.


 


9.             Bankruptcy
Reimbursements.  Guarantor hereby
agrees that if all or any part of the Obligations paid to Lender by Borrower or
any other party liable for payment and satisfaction of the Obligations (other
than Guarantor) are recovered from Lender in any bankruptcy proceeding,
Guarantor shall reimburse Lender immediately on demand for all amounts of such
Obligations so recovered from Lender, together with interest thereon at the
default rate set forth in the Note from the date such amounts are so recovered
until repaid in full to Lender, and, for this purpose, this Guaranty shall
survive repayment of the Loan.


 


10.           Jurisdiction and
Venue.  Guarantor hereby submits
itself to the jurisdiction and venue of any federal court located in the State
of Connecticut or any state court located in Hartford County, Connecticut in
connection with any action or proceeding brought for enforcement of Guarantor’s
obligations hereunder, and hereby waives any and all personal or other rights
under the law of any other country or state to object to jurisdiction within
such locations for purposes of litigation to enforce such obligations.  Guarantor agrees that service of process upon
Guarantor shall be complete upon delivery thereof in any manner permitted by
law.


 


11.           Financial Statements.  For so long as any of the Obligations remain
unsatisfied, Guarantor shall furnish to Lender such financial information
required to be furnished by Guarantor pursuant to Section 4.12 of the
Mortgage.


 


12.           Assignability.  This Guaranty shall be binding upon Guarantor
and Guarantor’s heirs, representatives, successors, and assigns and shall inure
to the benefit of Lender and Lender’s successors and assigns.  This Guaranty shall follow the Note and other
Loan Documents which are for the benefit of Lender, and, in the event the Note and
other Loan Documents are negotiated, sold, transferred, assigned, or conveyed
by 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 the
Note and other Loan Documents, with respect to the Obligations contained
therein, and such holder or holders may enforce this Guaranty as if such holder
or holders had been originally named as Lender hereunder.


 


13.           Payment of Costs of
Enforcement.  In the event any action
or proceeding is brought to enforce this Guaranty, Guarantor shall pay all
actual, out-of-pocket costs and expenses of Lender in connection with such
action or proceeding, including, without limitation, all attorneys’ fees
incurred by Lender.


 


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


 


If
to Guarantor:


 


Griffin Land & Nurseries, Inc.


90 Salmon Brook Street


Granby, Connecticut 06035


Attention: Mr. Frederick Danziger


 


If
to 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 for
notices or copies of notices by giving notice to the other party in accordance
with this Section 14.


 


15.           Reinstatement of
Obligations.  If at any time all or
any part of any payment made by Guarantor or received by Lender from Guarantor
under or with respect to this Guaranty is or must be rescinded or returned for
any reason whatsoever (including, but not limited to, the insolvency,
bankruptcy or reorganization of any Guarantor), then the obligations of
Guarantor 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, notwithstanding
such previous payment made by Guarantor, or receipt of payment by Lender, and
the obligations of Guarantor hereunder shall continue to be effective or be
reinstated, as the case may be, as to such payment, all as though such previous
payment by Guarantor had never been made.


 


16.           Severability of
Provisions.  If any provision hereof
or of any other Loan Document shall, for any reason and to any extent, be
invalid or unenforceable, then the remainder of the document in which such
provision is set forth, the application of the provision to other persons,
entities or circumstances, and any other document referred to herein shall not
be affected thereby but instead shall be enforceable to the maximum extent
permitted by law.


 


17.           Joint and Several Obligation.  If Guarantor is more than one person or
entity, then (a) all persons or entities comprising Guarantor are jointly
and 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 or
entities comprising Guarantor hereunder shall be deemed to be a breach,
default, or Event of Default of Guarantor; and (d) any reference herein
contained to the knowledge or awareness of Guarantor shall mean the knowledge
or awareness of any of the persons or entities comprising Guarantor.


 


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


 


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


 


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


 


[Balance of Page Intentionally Left Blank]


 


IN WITNESS WHEREOF, Guarantor has executed this
Guaranty 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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