Exhibit 10.4


 





 



 


 


 


 


 


GUARANTY OF RECOURSE OBLIGATIONS


 


 


made by


 


 


PRESIDENTIAL REALTY CORPORATION,


as Guarantor,


 


 


in favor of


 


 


NATIXIS REAL ESTATE CAPITAL LLC,


as Lender


 


 


 


 


 


 


Dated as of July 28, 2015


 


 


 


 


 


 





 



 






    	 



    	 



    




 


GUARANTY OF RECOURSE OBLIGATIONS


 


This GUARANTY OF RECOURSE
OBLIGATIONS (this “Guaranty”), dated as of July 28, 2015, is made by PRESIDENTIAL REALTY CORPORATION,
a Delaware corporation, having an address at 1430 Broadway, Suite 503, New York, New York 10018 (“Guarantor”),
in favor of NATIXIS REAL ESTATE CAPITAL LLC, a Delaware limited liability company, having an address at 1251 Avenue of the Americas,
New York, New York 10020 (together with its successors and assigns, “Lender”).


 


R E C I T
A L S:


 


WHEREAS, pursuant to
that certain Loan Agreement dated as of the date hereof (as the same may be amended, modified, supplemented, restated or replaced
from time to time, the “Loan Agreement”) between Palmer-Mapletree LLC, a Delaware limited liability company
(“Borrower”) and Lender, Lender has agreed to make a loan (the “Loan”) to Borrower
in an original principal amount of $1,750,000.00, subject to the terms and conditions of the Loan Agreement; and


 


WHEREAS, as a condition
to Lender’s making the Loan, Lender is requiring that Guarantor execute and deliver to Lender this Guaranty; and


 


WHEREAS, Guarantor
hereby acknowledges that it owns direct or indirect ownership interests in Borrower and, accordingly, Guarantor will materially
benefit from Lender’s agreeing to make the Loan.


 


NOW, THEREFORE, in
consideration of the premises set forth herein and as an inducement for and in consideration of the agreement of Lender to make
the Loan pursuant to the Loan Agreement, Guarantor hereby agrees, covenants, represents and warrants to Lender as follows:


 


		1.	Definitions.



 


(a)All capitalized
terms used and not defined herein shall have the respective meanings given such terms in the Loan Agreement.


 


(b)The term “Guaranteed
Obligations” means (i) Borrower’s Recourse Liabilities and (ii) from and after the date that any Springing
Recourse Event occurs, payment of all the Debt.


 


		2.	Guaranty.



 


(a)Guarantor hereby
irrevocably, absolutely and unconditionally guarantees to Lender the full, prompt and complete payment when due of the Guaranteed
Obligations.


 


(b)All sums payable
to Lender under this Guaranty shall be payable on demand and without reduction for any offset, claim, counterclaim or defense.


 


(c)Guarantor hereby
agrees to indemnify, defend and save harmless Lender from and against any and all costs, losses, liabilities, claims, causes of
action, expenses and damages, including reasonable attorneys’ fees and disbursements, which Lender may suffer or which otherwise
may arise in connection with the enforcement by Lender of the Loan Documents and/or by reason of Borrower’s failure to pay
any of the Guaranteed Obligations when due, irrespective of whether such costs, losses, liabilities, claims, causes of action,
expenses or damages are incurred by Lender prior or subsequent to (i) Lender’s declaring the Principal, interest and other
sums evidenced or secured by the Loan Documents to be due and payable, (ii) the commencement or completion of a judicial or
non-judicial foreclosure of the Security Instrument or (iii) the conveyance of all or any portion of the Property by deed-in-lieu
of foreclosure.


 






    	 



    	 



    

 


(d)Guarantor agrees
that no portion of any sums applied (other than sums received from Guarantor in full or partial satisfaction of its obligations
hereunder), from time to time, in reduction of the Debt shall be deemed to have been applied in reduction of the Guaranteed Obligations
until such time as the Debt has been paid in full, or Guarantor shall have made the full payment required hereunder, it being the
intention hereof that the Guaranteed Obligations shall be the last portion of the Debt to be deemed satisfied.


 


3.          Representations
and Warranties. Guarantor hereby represents and warrants to Lender as follows (which representations and warranties shall
be given as of the date hereof and shall survive the execution and delivery of this Guaranty):


 


(a)         Execution.
This Guaranty has been duly executed and delivered by Guarantor.


 


(b)         Enforceability.
This Guaranty constitutes a legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors’ rights generally.


 


(c)         No Violation.
The execution, delivery and performance by Guarantor of its obligations under this Guaranty does not and will not violate any law,
regulation, order, writ, injunction or decree of any court or governmental body, agency or other instrumentality applicable to
Guarantor, or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, or result in
the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the assets of Guarantor
pursuant to the terms of any mortgage, indenture, agreement or instrument to which Guarantor is a party or by which it or any of
its properties is bound. Guarantor is not in default under any other guaranty which it has provided to Lender.


 


(d)         No Litigation.
There are no actions, suits or proceedings at law or in equity, pending or, to Guarantor’s knowledge, threatened against
or affecting Guarantor or which involve or might involve the validity or enforceability of this Guaranty or which might materially
adversely affect the financial condition of Guarantor or the ability of Guarantor to perform any of its obligations under this
Guaranty. Guarantor is not in default beyond any applicable grace or cure period with respect to any order, writ, injunction, decree
or demand of any Governmental Authority which might materially adversely affect the financial condition of Guarantor or the ability
of Guarantor to perform any of its obligations under this Guaranty.


 


(e)         Consents.
All consents, approvals, orders or authorizations of, or registrations, declarations or filings with, all Governmental Authorities
(collectively, the “Consents”) that are required in connection with the valid execution, delivery and
performance by Guarantor of this Guaranty have been obtained and Guarantor agrees that all Consents required in connection with
the carrying out or performance of any of Guarantor’s obligations under this Guaranty will be obtained when required.


 


(f)         Financial
Statements and Other Information. All financial statements of Guarantor heretofore delivered to Lender are true and correct
in all material respects and fairly present the financial condition of Guarantor as of the respective dates thereof, and no materially
adverse change has occurred in the financial conditions reflected therein since the respective dates thereof. None of the aforesaid
financial statements or any certificate or statement furnished to Lender by or on behalf of Guarantor in connection with the transactions
contemplated hereby, and none of the representations and warranties in this Guaranty contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements contained therein or herein not misleading. Guarantor
is not insolvent within the meaning of the United States Bankruptcy Code or any other applicable law, code or regulation and the
execution, delivery and performance of this Guaranty will not render Guarantor insolvent.


 






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(g)          Consideration.
Guarantor is the owner, directly or indirectly, of legal and beneficial ownership interests in Borrower.


 


4.          Financial
Statements. Guarantor shall deliver to Lender, (a) within one-hundred twenty (120) days after the end of each fiscal
year of Guarantor, a complete copy of Guarantor’s annual financial statements audited by an independent certified public
accountant reasonably acceptable to Lender, (b) twenty (20) days after request by Lender, such other financial information
with respect to Guarantor as Lender may reasonably request.


 


		5.	Unconditional Character of Obligations of Guarantor.



 


(a)          The obligations
of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability,
in whole or in part, of the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any
waiver or consent with respect to any provision thereof, the recovery of any judgment against Borrower, Guarantor or any other
Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrower under the other
Loan Documents or Guarantor under this Guaranty, or any setoff or counterclaim, and irrespective of any other circumstances which
might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor
or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise,
independent of any loan foreclosure or similar proceeding or any deficiency action against Borrower or any other Person at any
time, either before or after an action against the Property or any part thereof, Borrower or any other Person. This Guaranty
is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance
of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of any other Loan Document against Guarantor,
Borrower or any other Person, any right to require a proceeding first against Borrower or any other Person, or to exhaust any security
(including, without limitation, the Property) for the performance of the Guaranteed Obligations or any other obligations of Borrower
or any other Person, or any protest, presentment, notice of default or other notice or demand whatsoever (except to the extent
expressly provided to the contrary in this Guaranty).


 


(b)         The obligations
of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in
equity or otherwise, shall not be in any way affected by any of the following:


 


		(i)	any insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting
Borrower, the Property or any part thereof, Guarantor or any other Person;



 


		(ii)	any failure by Lender or any other Person, whether or
not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents,
or any document or instrument relating thereto;



 


		(iii)	the sale, transfer or conveyance of the Property or any
interest therein to any Person, whether now or hereafter having or acquiring an interest in the Property or any part thereof and
whether or not pursuant to any foreclosure, trustee sale or similar proceeding against Borrower or the Property or any interest
therein;



 






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		(iv)	the conveyance to Lender, any Affiliate of Lender or
Lender’s nominee of the Property or any interest therein by a deed-in-lieu of foreclosure;



 


		(v)	the release of Borrower or any other Person from the
performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation
of law or otherwise; or



 


		(vi)	the release in whole or in part of any collateral for
any or all Guaranteed Obligations or for the Loan or any portion thereof.



 


(c)          Except as otherwise
specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by
Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions,
or impairments, whether arising hereunder or otherwise.


 


(d)          Lender may deal
with Borrower and Affiliates of Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled,
among other things, to grant Borrower or any other Person such extension or extensions of time to perform any act or acts as may
be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this
Guaranty or the obligations of Guarantor hereunder.


 


(e)          No compromise,
alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure
to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants
or conditions of, the Loan Documents shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and
Guarantor agrees that if any Loan Document is modified with Lender’s consent, the Guaranteed Obligations shall automatically
be deemed modified to include such modifications.


 


(f)          Lender may proceed
to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific
performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted
under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed
hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition
to any other remedy given hereunder or now or hereafter existing at law or in equity.


 


(g)          No waiver shall
be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any
such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender
or the obligations of Guarantor to Lender in any other respect or at any other time.


 


(h)          At the option
of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrower in connection with or based
upon any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action
or proceeding against Guarantor to the extent of Guarantor’s liability hereunder, without any requirement that Lender first
assert, prosecute or exhaust any remedy or claim against Borrower or any other Person, or any security for the obligations of Borrower
or any other Person.


 






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(i)          Guarantor agrees
that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made
by Borrower or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender
in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution,
receivership, conservatorship, winding up or other similar proceeding involving or affecting Borrower or Guarantor, all as though
such payment had not been made.


 


(j)          In the event
that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations
or in the event that for any reason whatsoever Borrower or any subsequent owner of the Property or any part thereof is now, or
shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness
and all interest thereon shall at all times be subordinate as to lien, the time of payment and in all other respects to all sums,
including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor
shall not be entitled to enforce or receive payment thereof until the Debt has been indefeasibly paid in full. Nothing herein contained
is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate
in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments
made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all of the Debt.
If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to
Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such
sums due and owing to Lender.


 


(k)          Guarantor’s
obligations hereunder shall survive a foreclosure, deed-in-lieu of foreclosure or similar proceeding involving the Property and
the exercise by Lender of any of all of its remedies pursuant to the Loan Documents.


 


6.          Covenants.


 


(a)          As used in this
Section 6, the following terms shall have the respective meanings set forth below:


 


		(i)	“GAAP” shall mean generally
accepted accounting principles, consistently applied.



 


		(ii)	“Liquid Assets” shall mean
the liquid assets of Guarantor in the form of cash, readily marketable securities traded on a national exchange or on the National
Association of Securities Dealers Automatic Quotations (NASDAQ), obligations of the United States of America, or guaranteed by
the United States of America, corporate debt securities traded on a national exchange, Guarantor’s cash in partnerships
in which Guarantor is a partner (but only to the extent that such cash is available for distribution to Guarantor and unencumbered),
and such other investments as may be acceptable to Lender in its sole discretion.



 


		(iii)	“Net Worth” shall mean, as
of a given date, (x) the total assets of Guarantor (excluding the value of Guarantor’s direct and indirect interests in
Borrower and the Property) as of such date less (y) Guarantor’s total liabilities as of such date, determined in accordance
with GAAP.



 






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(b)          Until all of
the Guaranteed Obligations have been paid in full, Guarantor shall maintain Liquid Assets in excess of $215,000.00, and (ii) shall
not sell, pledge, mortgage or otherwise transfer any of its assets, or any interest therein, on terms materially less favorable
than would be obtained in an arms-length transaction.


 


(c)          Guarantor shall
not, at any time while a default in the payment of the Guaranteed Obligations has occurred and is continuing, either (i) enter
into or effectuate any transaction with any Affiliate which would reduce the Net Worth of Guarantor or (ii) sell, pledge, mortgage
or otherwise transfer to any Person any of Guarantor’s assets, or any interest therein.


 


7.          Entire
Agreement/Amendments. This instrument represents the entire agreement between the parties with respect to the subject matter
hereof. The terms of this Guaranty shall not be waived, altered, modified, amended, supplemented or terminated in any manner whatsoever
except by written instrument signed by Lender and Guarantor.


 


8.          Successors
and Assigns. This Guaranty shall be binding upon Guarantor, and Guarantor’s estate, heirs, personal representatives,
successors and assigns, may not be assigned or delegated by Guarantor and shall inure to the benefit of Lender and its successors
and assigns.


 


9.          Applicable
Law and Consent to Jurisdiction. This Guaranty shall be governed by, and construed and enforced in accordance with, the
substantive laws of the State in which the Property is located. Guarantor irrevocably (a) agrees that any suit, action or
other legal proceeding arising out of or relating to this Guaranty may be brought in a court of record in the City and County in
which the Property is located or in the Courts of the United States of America located in the District where the Property is located,
(b) consents to the non-exclusive jurisdiction of each such court in any such suit, action or proceeding and (c) waives
any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts and any claim
that any such suit, action or proceeding has been brought in an inconvenient forum. Guarantor irrevocably consents to the service
of any and all process in any such suit, action or proceeding by service of copies of such process to Guarantor at its address
provided in Section 14 hereof. Nothing in this Section 9, however, shall affect the right of Lender to
serve legal process in any other manner permitted by law or affect the right of Lender to bring any suit, action or proceeding
against Guarantor or its property in the courts of any other jurisdictions.


 


10.          Section
Headings. The headings of the sections and paragraphs of this Guaranty have been inserted for convenience of reference
only and shall in no way define, modify, limit or amplify any of the terms or provisions hereof.


 


11.          Severability.
Any provision of this Guaranty which may be determined by any competent authority to be prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. To the extent permitted by applicable law, Guarantor hereby waives any provision of law
which renders any provision hereof prohibited or unenforceable in any respect.


 


12.          WAIVER
OF TRIAL BY JURY. GUARANTOR AND LENDER BY ITS ACCEPTANCE HEREOF EACH HEREBY WAIVES THE RIGHT OF TRIAL BY JURY IN ANY LITIGATION,
ACTION OR PROCEEDING ARISING HEREUNDER OR IN CONNECTION HEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY GUARANTOR AND LENDER, AND IS INTENDED TO ENCOMPASS EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL
BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE
OF THIS WAIVER OF TRIAL BY JURY BY GUARANTOR.


 






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13.          Other
Guaranties. The obligations of Guarantor hereunder are separate and distinct from, and in addition to, the obligations
of Guarantor now or hereafter arising under any other guaranties, pursuant to which Guarantor has guaranteed payment and performance
of certain other obligations of Borrower described therein.


 


14.          Notices.
All notices, demands, requests, consents, approvals or other communications (collectively called “Notices”)
required or permitted to be given hereunder to Lender or Guarantor or which are given to Lender or Guarantor with respect to this
Guaranty shall be in writing and shall be sent by United States registered or certified mail, return receipt requested, postage
prepaid, addressed as set forth below, or personally delivered with receipt acknowledged to such address, or in either case, to
such other address(es) as the party in question shall have specified most recently by like Notice.


 


If to Lender, to:


 


Natixis Real Estate
Capital LLC


1251 Avenue of the
Americas


New York, New York
10020


Attention: Real Estate
Administration


 


with a copy to:


 


Nelson Mullins Riley
& Scarborough LLP


100 North Tryon Street,
42nd Floor


Charlotte, North Carolina
28202


Attention: D. Shane
Gunter, Esq.


 


If to Guarantor, to:


 


Presidential Realty Corporation


1430 Broadway, Suite 503


New York, New York 10018


Attention: Alexander Ludwig


 


with a copy to:


 


Blank Rome LLP


The Chrysler Building


405 Lexington Avenue


New York, NY 10174-0208


Attention: Samuel M. Walker,
Esq.


 


Notices which are given in the manner aforesaid
shall be deemed to have been given or served for all purposes hereunder (i) on the date on which such notice shall have been
personally delivered as aforesaid, (ii) on the date of delivery by mail as evidenced by the return receipt therefor, or (iii) on
the date of failure to deliver by reason of refusal to accept delivery or changed address of which no Notice was given.


 






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15.          Guarantor’s
Receipt of Loan Documents. Guarantor by its execution hereof acknowledges receipt of true copies of all of the Loan Documents,
the terms and conditions of which are hereby incorporated herein by reference.


 


16.          Interest;
Expenses.


 


(a)          If Guarantor
fails to pay all or any sums due hereunder upon demand by Lender, the amount of such sums payable by Guarantor to Lender shall
bear interest from the date of demand until paid at the Default Rate in effect from time to time.


 


(b)          Guarantor hereby
agrees to pay all costs, charges and expenses, including reasonable attorneys’ fees and disbursements, which may be incurred
by Lender in enforcing the covenants, agreements, obligations and liabilities of Guarantor under this Guaranty.


 


17.          Joint
and Several Obligations. If Guarantor consists of more than one Person, each such Person shall have joint and several liability
for the obligations of Guarantor hereunder.


 


18.          Specific
Limitation on Guaranty and Indemnity Obligations. Guarantor and Lender hereby confirm that it is the intention of Guarantor
and Lender that this Guaranty not constitute a fraudulent transfer or fraudulent conveyance (a “Fraudulent Conveyance”)
under the Bankruptcy Code, the Uniform Fraudulent Conveyance Act or any other debtor relief law or insolvency law (whether statutory,
common law, case law or otherwise) or any jurisdiction whatsoever (collectively, the “Bankruptcy Laws”).
To give effect to the foregoing intention of Guarantor and Lender, each of such parties hereby irrevocably agrees that the Guaranteed
Obligations shall be limited to (but shall not be less than) such maximum amount as will, after giving effect to the maximum amount
of such obligations and all other liabilities (whether contingent or otherwise) of Guarantor that are relevant under such Bankruptcy
Laws, result in the Guaranteed Obligations not constituting a Fraudulent Conveyance under the Bankruptcy Laws, as of the date of
execution and delivery of this Guaranty.


 


19.          Counterparts.
This Guaranty may be executed in any number of counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument


 


 


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Remainder of the Page is Intentionally Blank]


 


 


 


 


 


 






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IN WITNESS WHEREOF,
Guarantor has executed this Guaranty as of the date first above written.


 


 


	 	GUARANTOR:
	 	 
	 	PRESIDENTIAL REALTY CORPORATION,
	 	a Delaware corporation
	 	 
	 	 
	 	 
	 	By: 	/s/ Alexander Ludwig
	 	Name:

Title:	Alexander Ludwig
President