up to One Million Three Hundred
Forty-Six Thousand Six Hundred Ten Dollars ($1,346,610) upon the terms and
conditions set forth in the Lease; and
WHEREAS, the Tenant has advised the Guarantor that it will not enter into the
aforesaid Lease with the Landlord unless, among other matters, the Guarantor
guarantees performance of the Guaranteed Obligations (hereinafter defined) as
hereinafter provided; and
WHEREAS, the Guarantor is willing and has agreed to guarantee the performance of
the Guaranteed Obligations as hereinafter provided.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, the Guarantor agrees as follows:
1.
DEFINITIONS.
AS USED HEREIN, THE FOLLOWING TERMS SHALL HAVE THE
FOLLOWING MEANINGS:
1.1
THE TERM "GUARANTEED OBLIGATIONS" SHALL MEAN:
(A)
THE PAYMENT OF THE CONSTRUCTION ALLOWANCE IN ACCORDANCE WITH THE
TERMS AND CONDITIONS SET FORTH IN THE LEASE; AND
(B)
THE PAYMENT OF ANY AND ALL COSTS AND EXPENSES INCURRED BY THE
TENANT IN THE SUCCESSFUL ENFORCEMENT OF ANY OF ITS RIGHTS UNDER THIS GUARANTY,
INCLUDING WITHOUT LIMITATION, COSTS OF LITIGATION AND
REASONABLE ATTORNEYS'
FEES.
J-1
1.2
All capitalized terms used herein and not otherwise defined shall
have the same meaning as set forth in the Lease.
2.
GUARANTY OF LIABILITIES.
2.1
THE GUARANTOR HEREBY GUARANTEES TO THE TENANT THE FULL, COMPLETE
AND PUNCTUAL PAYMENT (AND NOT MERELY THE COLLECTIBILITY) OF EACH AND ALL OF THE
GUARANTEED OBLIGATIONS IN THE EVENT THAT (I) MORGAN STANLEY MORTGAGE
CAPITAL, INC. ("LENDER"), WHICH IS PARTY TO THAT CERTAIN SUBORDINATION, NON
DISTURBANCE AND ATTORNMENT AGREEMENT DATED AS OF
, 2008 BY
AND BETWEEN LENDER AND THE TENANT, FORECLOSES ON THE PROPERTY, TAKES A DEED IN
LIEU OF FORECLOSURE OR OTHERWISE SUCCEEDS TO LANDLORD'S INTEREST UNDER THE
LEASE, (II) LENDER HAS NOT AGREED TO FUND THE CONSTRUCTION ALLOWANCE, AND
(III) LENDER DOES NOT IN FACT FUND ANY PORTION OF THE CONSTRUCTION ALLOWANCE
WHEN DUE WITHIN THE PERIOD REQUIRED PURSUANT TO THE LEASE.
SUBJECT TO THE
PRECEDING SENTENCE, GUARANTOR HEREBY COVENANTS AND AGREES THAT IT IS LIABLE FOR
THE GUARANTEED OBLIGATIONS AS A PRIMARY OBLIGOR AND NOT MERELY AS A SURETY.
2.2
SUBJECT TO SECTION 9 OF THIS AGREEMENT, THIS GUARANTY SHALL
TERMINATE AND BE OF NO FURTHER EFFECT UPON THE EARLIEST TO OCCUR OF (I) THE
TERMINATION OF THE LEASE, (II) JUNE 30, 2011, (III) THE FULL PERFORMANCE OF THE
GUARANTEED OBLIGATIONS BY THE LANDLORD OR THE GUARANTOR IN ACCORDANCE WITH THE
TERMS OF THE LEASE AND AS OTHERWISE REQUIRED HEREUNDER, OR (IV) AN EVENT
TRIGGERING THE TERMINATION OF THIS GUARANTY AS SET FORTH IN SECTION 25 OF THE
LEASE; PROVIDED, HOWEVER, THAT WITH RESPECT TO CLAUSE (II) ONLY, THIS GUARANTY
SHALL NOT SO TERMINATE WITH RESPECT TO ANY WRITTEN CLAIMS MADE BY TENANT
HEREUNDER PRIOR TO SUCH DATE.
3.
SUBORDINATION TO LANDLORD'S LENDER.
TENANT'S RIGHTS UNDER THIS
GUARANTY ARE FULLY AND UNCONDITIONALLY SUBORDINATE TO THE RIGHTS OF ANY
THIRD-PARTY MORTGAGEE OF THE PROPERTY TO EXERCISE ANY RIGHTS AND REMEDIES THAT
IT MAY HAVE FROM TIME TO TIME AGAINST GUARANTOR, WHETHER PURSUANT TO A