Exhibit 10
JUNIOR MEZZANINE GUARANTY AGREEMENT (NON-RECOURSE CARVEOUT) This JUNIOR MEZZANINE GUARANTY AGREEMENT (NON-RECOURSE CARVEOUT) (this "Guaranty") is made as of March 28, 2017, by MICHAEL Z. STERN, an individual, having an address at c/o JDS Development Group, 104 Fifth Avenue, 9th Floor, New York, New York 10011, and KEVIN PATRICK MALONEY, an individual, having an address at c/o Property Markets Group, 111 Fifth Avenue, 6th Floor, New York, New York 10003 (each a "Guarantor" and collectively, the "Guarantors"), in favor of ACREFI MORTGAGE LENDING, LLC, a Delaware limited liability company, having an office at c/o Apollo Commercial Real Estate Finance Inc., 9 West 57th Street, New York, New York 10019 ("ACREFI"), and APOLLO CREDIT OPPORTUNITY FUND III AIV I LP, a Delaware limited partnership ("COF"), and AGRE DEBT I 111 W 57, LLC, a Delaware limited liability company ("AGRE", and together with ACREFI and COF, individually or collectively as the case may be, and their successors and/or assigns, "Lender"), each having an address at c/o Apollo Commercial Real Estate Finance Inc., 9 West 57th Street, New York, New York 10019. 1. Loan and Notes. (a) This Guaranty is executed in connection with that certain junior mezzanine construction loan in the maximum aggregate principal amount of TWENTY-FIVE MILLION and 00/100 DOLLARS ($25,000,000.00) (the "Loan"), which amount was fully funded by Senior Mezzanine Lender (as defined below) as part of the Original Senior Mezzanine Loan (as defined below) prior to the date hereof, made by Lender to 111 WEST 57TH MEZZ 1 LLC, a Delaware limited liability company ("Borrower") pursuant to the terms and conditions of that certain Junior Mezzanine Construction Loan Agreement dated as of the date hereof between Borrower and Lender (the "Loan Agreement"). The Loan is evidenced by, among other things, (i) a certain Promissory Note A-1 (Junior Mezzanine Loan), dated as of the date hereof, made by Borrower in favor of ACREFI in the principal amount of $5,769,230.77 (as the same may be amended, supplemented or otherwise modified from time to time, the "Note A-1"), (ii) a certain Promissory Note A-2 (Junior Mezzanine Loan), dated as of the date hereof, made by Borrower in favor of AGRE in the principal amount of $15,384,615.38 (as the same may be amended, supplemented or otherwise modified from time to time, the "Note A-2") and (iii) a certain Promissory Note A-3 (Junior Mezzanine Loan), dated as of the date hereof, made by Borrower in favor of COF in the principal amount of $3,846,153.85 (as the same may be amended, supplemented or otherwise modified from time to time, the "Note A-3", and together with the Note A-1 and the Note A-2, collectively, the "Notes"), and secured by, among other things, a certain Pledge and Security Agreement (Junior Mezzanine Loan) (the "Pledge Agreement"), dated as of the date hereof, from Borrower pursuant to which Lender is granted a first priority security interest in all of Borrower's ownership interests in 111 WEST 57th HOLDINGS LLC, a Delaware limited liability company ("Senior Mezzanine Borrower"). Borrower is the owner of one hundred percent (100%) of the ownership interest in Senior Mezzanine Borrower, which is the owner of one hundred percent (100%) of the ownership interest in Mortgage Borrower. All capitalized terms used herein without definition shall have the meanings given to such terms in the Loan Agreement. (b) ACREFI and COF (together, "Original Mezzanine Lender") and Senior Mezzanine Borrower entered into that certain Mezzanine Construction Loan Agreement, dated as EAST\ 140430364.4
of June 30, 2015, as amended by that certain Amendment and Modification of Loan Agreement, dated as of December 1, 2015, by and between Original Mezzanine Lender and Senior Mezzanine Borrower (collectively, the "Original Mezzanine Loan Agreement"), with respect to a loan in the principal amount of $325,000,000.00 (the "Original Mezzanine Loan"), which Original Mezzanine Loan was evidenced by (a) that certain Promissory Note A-1 (Mezzanine Loan), dated as of June 30, 2015, made by Senior Mezzanine Borrower in favor of ACREFI in the principal amount of $75,000,000, (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the "Original Mezzanine Note A-1"), (b) that certain Promissory Note A-2 (Mezzanine Loan), dated as of June 30, 2015, made by Senior Mezzanine Borrower in favor of ACREFI in the principal amount of $200,000,000, (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the "Original Mezzanine Note A-2"), which was assigned by ACREFI to, and assumed by, AGRE (Original Mezzanine Lender and AGRE, in such capacity, together with their successors and assigns, collectively, "Senior Mezzanine Lender") on December 1, 2015, and (c) that certain Promissory Note A-3 (Mezzanine Loan), dated as of June 30, 2015, made by Senior Mezzanine Borrower in favor of COF in the principal amount of $50,000,000, (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the "Original Mezzanine Note A-3", and together with the Original Mezzanine Note A-1 and the Original Mezzanine Note A-2, collectively, the "Original Mezzanine Notes"), each as amended by that certain letter, dated September 11, 2015, from ACREFI, on behalf of Original Mezzanine Lender, to Senior Mezzanine Borrower, and secured by, among other things, that certain Pledge and Security Agreement, dated as of June 30, 2015 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the "Senior Mezzanine Pledge Agreement") by Senior Mezzanine Borrower in favor of Original Mezzanine Lender pursuant to which Senior Mezzanine Borrower has pledged, among other things, one hundred percent (100%) of the ownership interests in 111 West 57th Property Owner LLC, a Delaware limited liability company ("Mortgage Borrower"). Senior Mezzanine Lender has elected pursuant to Section 5.1.9 of the Original Mezzanine Loan Agreement and in accordance with that certain Forbearance Agreement, dated as of March 3, 2017, by and among Senior Mezzanine Borrower, Guarantors and Senior Mezzanine Lender (as the same may be amended, supplemented or otherwise modified from time to time, the "Forbearance Agreement") to split and sever the Original Mezzanine Loan into a (i) senior mezzanine loan in the principal amount of THREE HUNDRED MILLION AND 00/100 DOLLARS ($300,000,000.00) evidenced by (a) a certain Amended and Restated Promissory Note A-1 (Senior Mezzanine Loan), dated as of the date hereof, made by Senior Mezzanine Borrower in favor of ACREFI in the principal amount of $69,230,769.23 (as the same may be amended, supplemented or otherwise modified from time to time, the "Senior Mezzanine Note A-1") which amended and restated the Original Mezzanine Note A-1, (b) a certain Amended and Restated Promissory Note A-2 (Senior Mezzanine Loan), dated as of the date hereof, made by Senior Mezzanine Borrower in favor of AGRE in the principal amount of $184,615,384.62 (as the same may be amended, supplemented or otherwise modified from time to time, the "Senior Mezzanine Note A-2") which amended and restated the Original Mezzanine Note A-2, and (c) a certain Amended and Restated Promissory Note A-3 (Senior Mezzanine Loan), dated as of the date hereof, made by Senior Mezzanine Borrower in favor of COF in the principal amount of $46,153,846.15 (as the same may be amended, supplemented or otherwise modified from time to time, the "Senior Mezzanine Note A-3", and together with Senior Mezzanine Note A-1 and Senior Mezzanine Note A-2, collectively, the EAST\ 140430364. 42
"Senior Mezzanine Notes") which amended and restated the Original Mezzanine Note A-3, and (ii) the Loan evidenced by the Notes. 2. Purpose and Consideration. The execution and delivery of this Guaranty by Guarantors is (i) required under the Forbearance Agreement and in connection with the splitting and severance of the Senior Mezzanine Loan made in accordance with Section 5.1.9 of the Original Mezzanine Loan Agreement, as amended by that certain Second Amendment and Modification of Loan Agreement and Omnibus Amendment of Ancillary Loan Documents, dated as of the date hereof, by and between Senior Mezzanine Lender and Senior Mezzanine Borrower (as acknowledged by each Guarantor) (the "Second Amendment"; the Original Mezzanine Loan Agreement, as amended by the Second Amendment, and as the same may be further amended, restated, replaced, supplemented or otherwise modified from time to time, the "Senior Mezzanine Loan Agreement"), and (ii) made in recognition that Lender will be relying upon this Guaranty in creating the Loan (the proceeds of which were previously fully funded by Senior Mezzanine Lender to Borrower's wholly-owned subsidiary, Senior Mezzanine Borrower, as part of the Original Mezzanine Loan) and performing any other obligations it may have under the Loan Documents. Each Guarantor owns a direct and/or indirect ownership interest in Borrower. Accordingly, each Guarantor previously acknowledged that such Guarantor received a material direct and/or indirect benefit from Lender funding a portion of the Original Mezzanine Loan and hereby acknowledges that such Guarantor will further receive a material direct and/or indirect benefit from splitting and severing the Original Mezzanine Loan pursuant to Section 5.1.9 of the Original Mezzanine Loan Agreement and from Senior Mezzanine Lender agreeing to enter into the Forbearance Agreement. 3. Guaranty. Each Guarantor hereby jointly and severally guarantees and becomes a surety for, absolutely, primarily, unconditionally and irrevocably, the full and prompt payment and performance of all of the Obligations (as hereinafter defined) of Borrower. The term "Obligations" shall mean all of the obligations of Borrower under the exceptions to the nonrecourse provisions described in Section 8.31 of the Loan Agreement, without duplication. The liability of the Guarantors with respect to the Obligations shall be joint and several, primary, direct and immediate, and not conditional or contingent upon pursuit by Lender of any remedies Lender may have against Borrower or any other Person, whether pursuant to the Notes, the Loan Agreement, the Security Instrument, or any other Loan Document in connection therewith or any other document or agreement or at law, in equity or otherwise. Each Guarantor acknowledges that this Guaranty is a guarantee of payment and not just of collection in respect of the Obligations that may accrue to Lender from such Guarantor. The liability of each Guarantor under this Guaranty shall continue after any assignment or transfer of the interests of Lender under this Guaranty made in conjunction with an assignment of the Loan. 4. Guaranty is Independent and Absolute. The obligations of each Guarantor hereunder are independent of the obligations of Borrower and of any other Person that may become liable with respect to the Obligations. Each 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. Each Guarantor expressly agrees that a separate action or actions may be brought and prosecuted against such Guarantor (or any other guarantor), whether or not any action is brought against Borrower, the other Guarantor, any other guarantor or any other Person for any Obligations guaranteed hereby and whether or not Borrower, the other Guarantor, any EAST\ 140430364. 43
other guarantor or any other Persons are joined in any action against such Guarantor. Each Guarantor further agrees that Lender shall have no obligation to proceed against the Collateral, Account Collateral, or any other security for the Obligations prior to enforcing this Guaranty against such 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 Guarantors hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Notes, the Loan Agreement 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. All rights of Lender and all obligations of Guarantors hereunder shall survive any realization on the Collateral, Account Collateral, or other security for the Obligations. 5. Authorizations to Lender. Each Guarantor authorizes Lender, without notice or demand and without affecting such 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 Notes, 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 the Obligations or any other obligations under the Loan Documents; (c) to apply any security and direct the order or manner of sale thereof as Lender, in Lender's sole discretion, may determine; (d) to proceed against (x) Borrower with respect to any or all of the obligations under the Loan Documents or (y) Guarantors (or either of them) or any other guarantor with respect to any or all of the Obligations, in each case, 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 or any other obligations under the Loan Documents; (f) to release or substitute Borrower, the other Guarantor, any other guarantors, endorsers, or other parties that may be or become liable with respect to the Obligations or any other obligations under the Loan Documents, without any release being deemed made of such 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 under the Loan Documents, or any of them, without releasing Borrower, either Guarantor, or any other guarantor, endorser or other party that may be or become liable with respect to the Obligations, from any liability for the balance of the obligations under the Loan Documents. 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 sole discretion deems appropriate. 7. Waivers by Guarantors. In addition to all waivers expressed in any of the Loan Documents, all of which are incorporated herein, each 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 EAST1140430364. 44
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, that Lender may have against Borrower, any right to participate in any security now or hereafter held by Lender and any right to reimbursement from Borrower for amounts paid to Lender by Guarantors until all of the Secured Obligations have been satisfied; (h) benefits, if any, of Guarantors, under any antideficiency statutes or single-action legislation; (i) any defense arising out of any disability or other defense of Borrower, including bankruptcy, dissolution, 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 Guarantors hereunder; (k) any right to plead or assert any election of remedies by Lender; (1) any defenses arising out of or relating to the Mortgage Loan Documents or the acts or omissions of any party thereto, (m) any defenses arising out of or relating to the Senior Mezzanine Loan Documents or the acts or omissions of any party thereto, and (n) any other defenses available to a surety under applicable law. 8. Subordination by Guarantor. Each Guarantor hereby agrees that any indebtedness of Borrower, Senior Mezzanine Borrower or Mortgage Borrower to such Guarantor, including any indemnification or contribution claims, whether now existing or hereafter created, shall be, and is hereby, subordinated to the outstanding indebtedness of Borrower to Lender under the Loan Documents. At any time during which a Default or an Event of Default shall exist and is continuing, each Guarantor shall not accept or seek to receive any amounts from Borrower, Senior Mezzanine Borrower or Mortgage Borrower on account of any indebtedness of Borrower, Senior Mezzanine Borrower or Mortgage Borrower to such Guarantor. If Lender acquires the Collateral by foreclosure or transfer in lieu thereof, then from and after such acquisition any indebtedness and claims of any Guarantor against Mortgage Borrower and Senior Mezzanine Borrower shall be deemed waived and extinguished. 9. Bankruptcy Reimbursements. Guarantors hereby agree 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 are recovered from Lender in any bankruptcy proceeding, Guarantors shall reimburse Lender immediately on demand for all amounts of such Obligations so recovered from Lender, together with interest thereon at the Default Rate (as such term is defined in the Notes) from the date such amounts are so recovered until repaid in full to Lender. For purposes of the reimbursement of Lender by Guarantors under this Section 9, the provisions of this Guaranty shall survive repayment of the Secured Obligations until all amounts recovered from Lender, and any other amounts due thereon under this Guaranty, shall have been reimbursed in full. 10. Jurisdiction and Venue. Each Guarantor hereby submits itself to the jurisdiction and venue of any federal or state court located in the City of New York, County of New York, in the State of New York, in connection with any action or proceeding brought for enforcement of such 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. Each Guarantor agrees that service of process EAST \ 140430364. 45
upon such Guarantor shall be complete upon delivery thereof in any manner permitted by law to Guarantor's agent for service of process as designated in Section 11 below. 11. Service of Process. (a) Each Guarantor hereby appoints Corporate Creations Network Inc., 15 North Mill Street, Nyack, New York 10960 (Michael Z. Stern) and CT Corporation System, 111 Eighth Avenue, New York, New York 10011 (Kevin Patrick Maloney), as its lawfully designated agent for service of process and hereby consents to such service for purposes of submitting to the jurisdiction and venue of any federal or state court located in the City of New York, County of New York, in the State of New York, as provided in Section 10 hereof. Each Guarantor hereby agrees that Guarantor shall not change such Guarantor's designated agent without giving prior written notice thereof to Lender and without having received Lender's prior express written consent to such redesignation. In the event that service of process in accordance with the foregoing is not possible after two (2) weeks' reasonable effort by Lender, each Guarantor hereby consents to service by publication in a newspaper of general circulation in the City of New York, County of New York, in the State of New York. (b) Each Guarantor hereby further acknowledges and agrees that delivery to Guarantor, at the address, and in any manner provided for, in Section 14 hereof, of any summons and complaint or any other documents in any action, as evidenced by regular or customary receipt or statement of a nationally recognized overnight delivery firm for business day delivery, shall constitute, for all purposes in any such action, service of process for purposes of submitting to the jurisdiction and venue of any federal or state court located in the City of New York, County of New York, in the State of New York, as provided in Section 10 above, and each Guarantor hereby consents to any such service. Each Guarantor hereby agrees that such Guarantor shall not change any such address without giving prior written notice thereof to Lender and having received Lender's written receipt of such change of address notice. 12. Covenants of Guarantor. Guarantors covenant to Lender as follows: (a) Minimum Net Worth and Liquidity. At all times during the term of the Loan, Guarantors shall satisfy the "Minimum Guarantor Net Worth Requirement" which term shall mean that the Guarantors, in the aggregate, shall have (i) a Net Worth (as hereinafter defined) of not less than $200,000,000.00 and (ii) a Minimum Available Liquidity (as hereinafter defined) of not less than $30,000,000.00. For purposes of this Guaranty, the terms (x) "Net Worth" shall mean the excess, if any, of (A) total assets (excluding the Property or any direct or indirect interest in Borrower or in the Property) over (B) total liabilities (including, without limitation, contingent liabilities but excluding any liabilities associated directly or indirectly with Borrower or the Property and other non-recourse carve-out guaranties, environmental guaranties, completion guaranties or similar guaranties against which claims have not been made) all as determined in accordance GAAP (as defined in the Loan Agreement), and (y) "Minimum Available Liquidity" shall mean the excess, if any, of (A) the market value of assets in the form of cash and other assets that are readily convertible to cash (including, without limitation, cash equivalents, obligations of the United States or any agency or instrumentality thereof which are supported by the full faith and credit of the United States, securities listed and traded on a recognized stock exchange or traded over the counter and listed in the National Association of EAST \ 140430364. 46
Securities Dealers Automatic Quotations, certificates of deposit issued by a commercial bank having net assets of not less than $1,000,000,000.00 and other liquid debt instruments that have a readily ascertainable value and are regularly traded in a recognized financial market), over (B) total liens and encumbrances affecting such cash and other assets. (b) Financial Statements. Each Guarantor shall furnish to Lender (i) financial statements and a balance sheet for such Guarantor within ninety (90) days after the end of the calendar year of such Guarantor on an annual basis, and (ii) all federal and state tax returns of such Guarantor within thirty (30) days after the filing of same. The financial statements and reports described above shall be in such detail as Lender may require, shall be compiled in accordance with GAAP (but excluding taxes on realized gains) consistently applied, shall be certified as true and correct by the applicable Guarantor (or if required by Lender by an independent certified public accountant acceptable to Lender and shall include supporting documentation and calculations documenting that such Guarantor satisfies the Minimum Guarantor Net Worth Requirement and Minimum Available Liquidity). Each Guarantor shall also furnish to Lender within thirty (30) days after Lender's request, any other financial reports or statements of such Guarantor as may be reasonably requested by Lender, including, without limitation, balance sheets and other financial statements required under any of the Loan Documents, requested by any regulatory or governmental authority exercising jurisdiction over Lender, or reasonably requested by Lender from time to time in such form and detail as Lender may reasonably require, certified as true and correct by such Guarantor. Lender hereby acknowledges and agrees that (1) until further notice from Lender, Cywiak & Co. shall be deemed to be an independent certified public accountant acceptable to Lender hereunder, and (2) the form on which the Guarantors delivered their financial statements, balance sheets and certifications in connection with the negotiation hereof shall be deemed sufficient for purposes hereof. (c) Requested Information. Subject to any changes in accounting or regulatory standards, each Guarantor shall furnish (or cause to be furnished) to Lender, within thirty (30) days after any request therefor, such other further detailed information in such form and detail as reasonably requested by Lender with respect to such Guarantor, or any Affiliate of, or Person Controlled by, such Guarantor, as of a date not earlier than that specified by Lender in such request, in each case together with a certificate signed by such Guarantor certifying that on the date thereof that such other information is true, correct and complete. (d) Books and Records. Each Guarantor shall keep proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of such Guarantor. (e) Preservation of Loan Documents. Each Guarantor shall maintain and preserve the enforceability of the Loan Documents to which such Guarantor is a party as the same may be modified and will not take or fail to take actions of any kind, the taking of which or the failure to take which might reasonably be expected to be the basis for a claim that such Guarantor has a defense to such Guarantor's obligations hereunder and under any other Loan Document to which such Guarantor is a party, other than performance of such obligations in accordance with the terms of the instruments imposing the same. EAST\ 140430364. 47
13. Assignability. This Guaranty shall be binding upon each Guarantor and such 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 Notes, the Loan Agreement, and the other Loan Documents, which are for the benefit of Lender, and, in the event the Notes, the Loan Agreement, and the 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 Notes, the Loan Agreement, and the 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. 14. Notices. Any notice, consent or approval required or permitted to be given by Guarantors or Lender under this Guaranty shall be in writing and will be deemed given (a) upon personal delivery or (b) on the first business day after receipted delivery to a courier service which guarantees next-business day delivery, in any case to Lender, at the addresses set forth in the Loan Agreement, and/or to each Guarantor at such Guarantor's address set forth below: If to Guarantors: Michael Z. Stern c/o JDS Development Group 104 Fifth Avenue, 9th Floor New York, New York 10011 with copies to: Kasowitz, Benson, Torres & Friedman LLP 1633 Broadway New York, New York 10019 Attention: Douglas B. Heitner Mayer Brown LLP 1221 Avenue of the Americas New York, New York 10020-1001 Attention: Marc S. Shapiro, Esq. Kevin Patrick Maloney 111 Fifth Avenue, 6th Floor New York, New York 10003 with copies to: Franklin R. Kaiman, Esq. 111 Fifth Avenue, 6 th Floor New York, New York 10003 EAST \ 140430364. 48
Mayer Brown LLP 1221 Avenue of the Americas New York, New York 10020-1001 Attention: Marc S. Shapiro, Esq. Any 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. Payment of Costs of Enforcement. In the event any action or proceeding is brought by Lender to enforce this Guaranty, Guarantors shall pay all costs and expenses of Lender in connection with such action or proceeding, including, without limitation, all attorneys' fees incurred by Lender. 16. Reinstatement of Obligations. If at any time all or any part of the Obligations or any other payment made by Guarantors or Borrower or received by Lender from Guarantors, or Borrower under or with respect to this Guaranty or the other Loan Documents is, or must be, rescinded or returned for any reason whatsoever (including, but not limited to, the insolvency, bankruptcy or reorganization of Guarantors or Borrower), then the Obligations 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 Guarantors, or Borrower, as applicable, or receipt of payment by Lender, and the Obligations shall continue to be effective or be reinstated, as the case may be, as to such payment, all as though such previous payment by Guarantors, or Borrower had never been made. For purposes of this Section 16, the provisions of this Guaranty shall survive repayment of the Secured Obligations until all amounts rescinded or returned, and any other amounts due under this Section 16, shall have been reimbursed in full. 17. Severability of Provisions. If any provision of this Guaranty is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Guaranty, the legality, validity, and enforceability of the remaining provisions of this Guaranty shall not be affected thereby, and in lieu of each such illegal, invalid or unenforceable provision there shall be added automatically as a part of this Guaranty a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. 18. New York Provisions. Each Guarantor acknowledges and agrees that this Guaranty is, and is intended to be, an instrument for the payment of money only, as such phrase is used in Section 3213 of the Civil Practice Law and Rules of the State of New York, that such Guarantor has been fully advised by such Guarantor's counsel of Lender's rights and remedies pursuant to such Section 3213 and that such Guarantor expressly waives any right, and hereby agrees not, to assert that this Guaranty is not such an instrument. 19. Waiver. Neither the failure of Lender to exercise any right or power given hereunder or to insist upon strict compliance by Borrower, either Guarantor, any other guarantor or any other Person with any of its obligations set forth herein or in any of the Loan Documents to which it is a party, nor any practice of Borrower or either Guarantor at variance with the terms EAST\140430364. 49
hereof or of any Loan Documents to which it is a party, shall constitute a waiver of Lender's right to demand strict compliance with the terms and provisions of this Guaranty. 20. Certain Waivers. EACH GUARANTOR, BY SIGNING THIS GUARANTY, AND LENDER, BY ACCEPTING THIS GUARANTY, EACH KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT ANY OF THEM 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 TO WHICH IT IS A PARTY, 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 PURPOSES OF LENDER AND GUARANTORS ENTERING INTO THE SUBJECT LOAN TRANSACTION. 21. 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 New York, without reference to conflicts of law principles. 22. Acceptance of Cures for Event of Default. Notwithstanding anything to the contrary contained in this Guaranty or the other Loan Documents (including, without limitation, any reference to the "continuance" of an Event of Default or that an Event of Default is "continuing"), Lender shall in no event or under any circumstance be obligated or required to accept a cure by Borrower, Guarantors or any other Person of an Event of Default unless Lender agrees to do so in the exercise of its sole and absolute discretion, it being agreed that once an Event of Default has occurred and so long as Lender has not determined to accept a cure of such Event of Default in writing, Lender shall be absolutely and unconditionally entitled to pursue all rights and remedies available to it under the Loan Documents, at law or in equity or otherwise. 23. Representations and Warranties. Each Guarantor represents and warrants, as of the date hereof to Lender, as follows: (a) Such Guarantor is a direct and/or indirect owner of ownership interests in Borrower as set forth in the Organizational Chart. (b) This Guaranty and the other Loan Documents to which such Guarantor is a party will, when delivered hereunder, be valid and binding obligations of such Guarantor, enforceable against such Guarantor in accordance with their respective terms, except as limited by equitable principles and bankruptcy, insolvency and similar laws affecting creditors' rights. This Guaranty, the Notes, the Loan Agreement and the other Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by such Guarantor (including the defense of usury), and such Guarantor has not asserted any right of rescission, set-off, counterclaim or defense with respect thereto. (c) The execution, delivery and performance by such Guarantor of the Loan Documents to which such Guarantor is a party will not contravene any contractual or other restriction binding on or affecting such Guarantor, and will not result in or require the creation of EAST\ 140430364. 410
any lien, security interest, other charge or encumbrance (other than pursuant hereto) upon or with respect to any of such Guarantor's respective properties. (d) The execution, delivery and performance by such Guarantor of the Loan Documents to which such Guarantor is a party does not contravene any applicable law or regulation. (e) No authorization, approval, consent or other action by, and no notice to or filing with, any court, governmental authority or regulatory body is required for the due execution, delivery and performance by such Guarantor of any of the Loan Documents to which such Guarantor is a party or the effectiveness of any assignment of any of such Guarantor's rights and interests of any kind to Lender. Such Guarantor has not made any assignment for the benefit of creditors, nor has such Guarantor filed, or had filed against such Guarantor, any petition in bankruptcy. (g) There is no pending or threatened litigation, action, proceeding or investigation, including, without limitation, any condemnation proceeding, against such Guarantor before any court, governmental or quasi-governmental, arbitrator or other authority that would have a Material Adverse Effect on such Guarantor's performance of its obligations hereunder. (h) Such Guarantor is a "non-foreign person" within the meaning of Sections 1445 and 7701 of the United States Internal Revenue Code of 1986, as amended, and the regulations issued thereunder. (i) Such Guarantor has filed or has obtained extensions to file all tax returns which are required to be filed by Guarantor and has paid all taxes shown thereon to be due, together with applicable interest and penalties. Such Guarantor has independently and without reliance upon Lender and based on such documents and information as such Guarantor has deemed appropriate, made such Guarantor's own credit analysis and decision to enter into this Guaranty. (k) No statement of fact made by or on behalf of such Guarantor in this Guaranty or in any of the other Loan Documents to which such Guarantor is a party contains any untrue statement of material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. To such Guarantor's knowledge, there is no fact that has not been disclosed to Lender that is likely to result in a Material Adverse Effect. EAST\140430364. 411
(I) Such Guarantor is not (i) a Prohibited Person, or (ii) subject to any other Legal Requirement that purports to restrict or regulate such Guarantor's ability to comply with this Guaranty. (m) Such Guarantor is not in default in the performance, observance or fulfillment of any of the material obligations, covenants or conditions contained in any agreement or instrument to which such Guarantor is a party or by which such Guarantor or any Collateral is bound which is reasonably likely to have a Material Adverse Effect on such Guarantor's ability to perform its obligations hereunder. (n) Such Guarantor is not contemplating either the filing of a petition by Guarantor under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of his assets or property. To such Guarantor's knowledge, no Person is contemplating the filing of any such petition against such Guarantor. (o) Such Guarantor does not receive more than five percent (5%) of its revenue from business conducted in or with countries sanctioned by the U.S. Treasury Department of Foreign Assets Control, except in connection with "Country Sanction Programs" promulgated thereby. (p) Such Guarantor and the other Guarantor collectively satisfy the Minimum Guarantor Net Worth Requirement. (q) To such Guarantor's knowledge, after giving effect to the transactions contemplated hereby, the fair saleable value of such Guarantor's assets exceeds and shall, immediately following the making of the Loan and the execution of this Guaranty, exceed such Guarantor's total liabilities (including, without limitation, subordinated, unliquidated, disputed and contingent liabilities). The fair saleable value of such Guarantor's assets is and shall, immediately following the making of the Loan and the execution of this Guaranty, be greater than such Guarantor's total liabilities (including the maximum amount of its respective contingent liabilities on its respective debts (including, without limitation, this Guaranty) as such debts become absolute and matured). Such Guarantor's assets do not and, immediately following the making of the Loan and the execution of this Guaranty shall not, constitute unreasonably small capital to carry out such Guarantor's businesses as conducted or as proposed to be conducted. Such Guarantor does not intend to, or believe that such Guarantor will, incur debts and liabilities (including, without limitation, contingent liabilities and other commitments) beyond such Guarantor's ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of the respective obligations of any of the Borrower Parties). 24. Joint and Several Obligation. (a) Guarantors shall be jointly and severally liable for all of the Obligations; (b) any breach, Default or Event of Default by either Guarantor hereunder shall be deemed to be a breach, Default, or Event of Default of each Guarantor; and (c) any reference herein contained to the knowledge or awareness of either Guarantor shall mean the knowledge or awareness of each Guarantor. EAST\ 140430364. 412
25. Damages. Notwithstanding anything to the contrary contained herein, in no event shall Guarantors be liable to Lender for any special, consequential or punitive damages, except to the extent Lender is obligated to pay such special, consequential or punitive damages to a third party. 26. Replacement Guarantor. Nothing contained herein shall be construed to prevent Borrower from appointing a Qualified Replacement Guarantor to replace one or more of the Guarantors to the extent such replacement is permitted pursuant to the Loan Agreement. 27. Limitation on Liability. Notwithstanding anything to the contrary contained herein, Guarantor shall have no liability under this Guaranty for Obligations to the extent first arising or accruing from acts or omissions that are not attributable to Borrower or any Affiliate of Borrower at any time when neither Guarantor nor any of their Affiliates continue to own an indirect interest in Borrower and/or no longer control Borrower, provided such discontinuance of ownership and/or control is the result of the exercise by Lender or Senior Mezzanine Lender of its remedies under the mezzanine loan documents to which it is a party, whether by foreclosure, acceptance of a conveyance in lieu of foreclosure, "strict foreclosure" under Section 9-620 of the Uniform Commercial Code, exercise of power of sale, exercise of voting control rights (provided that with respect to any exercise of voting control rights, the limitation on liability set forth herein shall apply solely to the extent such exercise of voting control rights directly causes the applicable Obligations and shall only apply to such Obligations and shall not, in any manner, limit the liability of Guarantor with respect to any other Obligations) under the pledge and security agreement to which it is a party, or otherwise. For the avoidance of doubt, except as expressly set forth in the preceding sentence, the foregoing Section 27 does not amend, modify, limit or otherwise affect any liability arising under Section 8.1.32 of the Loan Agreement 28. Amended and Restated Obligations; Component Junior Mezzanine Loan. Each Guarantor hereby acknowledges and agrees that the principal amount of the Loan evidenced by the Notes and secured by the Security Instrument was previously fully funded by Senior Mezzanine Lender to Borrower's wholly-owned subsidiary, Senior Mezzanine Borrower, as part of the Original Senior Mezzanine Loan and that the Loan evidenced by the Notes was created from the splitting and severing of the Original Senior Mezzanine Loan, at the election of Senior Mezzanine Lender made in accordance with the Section 5.1.9 of the Original Senior Mezzanine Loan Agreement. Borrower Parties have duly executed and delivered all Loan Documents, including this Guaranty, to Lender in connection with the splitting and severance of the Original Senior Mezzanine Loan. Each Guarantor acknowledges and agrees that Borrower and Guarantors have received adequate consideration for the creation of the Loan and each Guarantor acknowledges and consents to Borrower assuming and undertaking the indebtedness evidenced by the Notes from its wholly-owned subsidiary, Senior Mezzanine Borrower, and each Guarantor hereby assumes and undertakes all obligations and liabilities accruing from and after the date hereof in connection therewith pursuant to this Guaranty. 29. Release. Each Guarantor on behalf of itself and its respective, heirs, executors, administrators and successors and assigns (collectively, the "Borrower Releasing Parties") hereby irrevocably remises, releases, acquits, satisfies and forever discharges Lender, Servicer and all of their EAST\ 140430364. 413
respective past, present and future partners, officers, directors, employees, agents, attorneys, servicers, subservicers, special servicers, contractors, representatives, participants, successors, assigns, subsidiaries, affiliates, parents and predecessors in interest (collectively, the "Lender Parties") from any and all manner of debts, accounts, bonds, warranties, representations, covenants, promises, contracts, controversies, agreements, liabilities, obligations, expenses, damages, judgments, executions, actions, objections, claims, defenses, counterclaims, offsets, demands and causes of action of any nature whatsoever, whether at law or in equity, whether sounding in contract or in tort, whether known or unknown, which any of Borrower Releasing Parties now have by reason of any matter, cause or thing, from the beginning of the world to and including the date of this Guaranty arising out of or relating to (a) the Loan and the Loan Documents, including, without limitation, the origination, funding, servicing or administration thereof, any Loan Modification and the splitting and severing of the Loan as of the date hereof, (b) the Collateral and/or the Property, (c) the Forbearance Agreement and any enforcement of Lender's rights under the Loan Documents, (d) any proposed junior mezzanine financing or any consideration to enter into any such proposed junior mezzanine financing, including, without limitation, the proposed junior mezzanine loan in the original principal amount of up to $125,000,000 to be provided by Baupost Capital, L.L.C., a Delaware limited liability company or any Affiliate thereof to Borrower (the "Baupost Junior Mezzanine Transaction"), and (e) any other agreement or transaction between any of Borrower Releasing Parties and any of Lender Parties concerning matters arising out of or relating to the items set forth in subsections (a) through (d) above. Each Guarantor covenants and agrees on behalf of itself and the Borrower Releasing Parties, not to institute or cause to be instituted or continue prosecution of any suit or other form of action or proceeding of any kind or nature whatsoever against the Lender Parties by reason of or in connection with any of the foregoing matters, claims or causes of action released pursuant to this Section 29. 30. Acknowledgment of Alternatives. Borrower and Guarantor have requested that Lender consider the Baupost Junior Mezzanine Transaction as more particularly described in Section 3.01(c) of the Forbearance Agreement. Borrower and Guarantor acknowledge and agree that there are no limitations or restrictions preventing them from complying with the Loan Documents and any decision made by Borrower and/or Guarantor with respect to compliance with the Loan Documents or pursuing the Baupost Junior Mezzanine Transaction is made by Borrower and/or Guarantor in their sole and absolute discretion. [Remainder of the Page Intentionally Left Blank] EAST\ 140430364. 414
IN WITNESS WHEREOF, the Guarantors have executed this Guaranty as of the day and year first above written. GUARANTORS: MICHAEL Z. STERN KEVIN PATRICK MALONEY (Signature Page to Junior Mezzanine Non-Recourse Carve-Out Guaranty)
IN WITNESS WI IEREOF, the Guarantors have executed this Guaranty as of the day and year first above written. G UARANTORS: MICHAEL Z. STERN (Signature Page to Junior Ivieiyanine Non-Recourse Carve-Out Guaranty)
STATE OF NEW YORK COUNTY OF NEW YORK ) ss.: On the '3\2_ day of March in the year 2017 before me, the undersigned, a Notary Public in and for said State, personally appeared, MICHAEL Z. STERN, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individuals acted, executed the instrument. (Signature and office of individual taking acknowledgment.) Notary Public My Commission Expires: WILLIAM SAMUEL CHOURAQUI Notary Public, State of New York No. 01CH6327153 Qualified in New York County Commission Expires June 9, 20,L [Acknowledgment of Michael Z. Stern] STATE OF COUNTY OF ) ss.: On the day of March in the year 2017 before me, the undersigned, a Notary Public in and for said State, personally appeared, KEVIN PATRICK MALONEY, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individuals acted, executed the instrument. (Signature and office of individual taking acknowledgment.) Notary Public My Commission Expires: [Acknowledgment of Kevin Patrick Maloney] (Signature Page to Junior Mezzanine Non-Recourse Carve-Out Guaranty)
STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On the day of March in the year 2017 before me, the undersigned, a Notary Public in and for said State, personally appeared, MICHAEL Z. STERN, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individuals acted, executed the instrument. (Signature and office of individual taking acknowledgment.) Notary Public My Commission Expires: [Acknowledgment of Michael Z. Stern STATE OF QP4 NCA (- ) ) ss.: COUNTY OF _IN kv' UAL- ) On the day of March in the year 2017 before me, the undersigned, a Notary Public in and for said State, personally appeared, KEVIN PATRICK MALONEY, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, ckt;t...the person upon behalf of which the individuals ac ed, ed the instrument. sk-:b>'c*c,ce, 0,.,(41) co n70" c,\ Cd (Signature and office individualtaking acknowledgmee ). Ncsci Notary Public, e My Commission Expires: 0 */*'` ct. o'c' [Acknowledgment of Kevin Patti tdoney] (Signature Page to Junior Mtazanine Non-Recourse Carve-Out Guaranty)