\nSECTION 1. Guaranty…………………………………………………..2<\/p>\nSECTION 2. Bankruptcy…………………………………………………3<\/p>\n
SECTION 3. Guarantor’s Guaranteed Obligations Unconditional……………….3<\/p>\n
SECTION 4. Waiver and Agreement………………………………………..4<\/p>\n
SECTION 5. Subrogation, etc……………………………………………5<\/p>\n
SECTION 6. Rights of the Beneficiaries………………………………….6<\/p>\n
SECTION 7. Term of Guaranty……………………………………………6<\/p>\n
SECTION 8. Notices, etc……………………………………………….6<\/p>\n
SECTION 9. Severability of this Guaranty………………………………..6<\/p>\n
SECTION 10. Jury Trial………………………………………………..6<\/p>\n
SECTION 11. Amendments………………………………………………..7<\/p>\n
SECTION 12. Miscellaneous……………………………………………..7
\n<\/c><\/s><\/caption>\n<\/table>\n
3
\n PARENT GUARANTY<\/p>\n
This PARENT GUARANTY (this “Guaranty”), dated as of June 21, 2000, of
\nTHE GOLDMAN SACHS GROUP, INC., a Delaware corporation (“Guarantor”), is made in
\nfavor of the Beneficiaries.<\/p>\n
WHEREAS, Guarantor is the beneficial owner of all the issued and
\noutstanding limited liability company interests of Lessee;<\/p>\n
WHEREAS, pursuant to the Ground Lease, dated as of even date herewith
\n(as amended, amended and restated, supplemented or otherwise modified from time
\nto time, the “Ground Lease”), between GSJC Land LLC, as landlord (the
\n“Landlord”), and Hudson Street Lessor L.L.C., as tenant (the “Ground Lessee”),
\nLandlord has leased the Sites to Ground Lessee;<\/p>\n
WHEREAS, pursuant to the Ground Sublease, dated as of even date
\nherewith (as amended, amended and restated, supplemented or otherwise modified
\nfrom time to time, the “Ground Sublease”), between the Ground Lessee, as
\nlandlord and Lessor, as tenant, the Ground Lessee has subleased the Sites to the
\nLessor;<\/p>\n
WHEREAS, pursuant to a Master Construction Agency Agreement, dated as
\nof even date herewith, (as amended, supplemented, amended or restated or
\notherwise modified from time to time, the “Construction Agency Agreement”)
\nbetween Lessor and the Lessee as Construction Agent, the Lessor has agreed to
\npay or reimburse the Lessee for Eligible Accrued Project Costs and Lessee has
\nagreed as Construction Agent to undertake the supervision of the Construction of
\nImprovements on the Sites;<\/p>\n
WHEREAS, pursuant to the Participation Agreement, dated as of even date
\nherewith (as amended, supplemented, amended and restated or otherwise modified
\nfrom time to time, the “Participation Agreement”), among the Ground Lessee,
\nLessor, Lessee, the Guarantor, Ground Lessor, the financial institutions listed
\non Schedule II thereto as Investors, HSFC, GS & Co., as Administrative Agent to
\nHSFC, the Conduit, Bank of America, as Administrator to the Conduit, the
\nLiquidity Purchasers and Bank of America, as Liquidity Agent to the Liquidity
\nPurchasers, the Trust, the Trustee and The Chase Manhattan Bank, as Collateral
\nAgent, Lessor has agreed to finance the construction of Improvements on the
\nSites (and capitalized terms used in this Guaranty and not defined herein shall,
\nunless the context requires a different meaning, have the meaning assigned to
\nsuch terms in Appendix A to the Participation Agreement, and the rules of usage
\nset forth in Appendix A to the Participation Agreement shall apply to this
\nGuaranty);<\/p>\n
WHEREAS, pursuant to that certain Lease Agreement, dated as of even
\ndate herewith (as amended, amended and restated, supplemented or otherwise
\nmodified from time to time, the “Lease”), between GSJC 30 Hudson Urban Renewal
\nL.L.C., a New Jersey limited liability company and GSJC 50 Hudson Urban Renewal
\nL.L.C., a New Jersey limited liability company (collectively, the “Lessee”), and
\nLessor, Lessor will lease the Properties and sublease the Sites to Lessee;
\n 4
\n Parent Guaranty<\/p>\n
WHEREAS, Lessor, the Investors, HSFC, the Conduit, the Liquidity
\nPurchasers and the Liquidity Agent are unwilling to enter into the transactions
\ncontemplated by the Participation Agreement and the other Operative Documents to
\nbe entered into as of the Documentation Date unless Guarantor executes this
\nGuaranty, and as an inducement to Lessor, the Investors, HSFC, the Conduit, the
\nLiquidity Purchasers and the Liquidity Agent, Guarantor is entering into this
\nGuaranty and the guarantee provided for herein; and<\/p>\n
WHEREAS, it is in the best interest of Guarantor to execute this
\nGuaranty inasmuch as Guarantor will derive substantial direct and indirect
\nbenefits from the transactions contemplated by the Participation Agreement and
\nthe other Operative Documents;<\/p>\n
NOW, THEREFORE, Guarantor covenants and agrees as follows:<\/p>\n
SECTION 1. Guaranty. Guarantor, as primary obligor and not as surety,
\nhereby unconditionally and irrevocably guarantees to Lessor, each Investor,
\nHSFC, the Conduit, each Liquidity Purchaser and the Liquidity Agent, each other
\nIndemnitee and the respective successors and assigns of the foregoing
\n(individually, a “Beneficiary” and, collectively, the “Beneficiaries”) as their
\nrespective interests may appear, the following obligations (collectively, the
\n“Guaranteed Obligations”):<\/p>\n
(a) the due, punctual and full payment by Lessee (including in
\n its capacity as Construction Agent) of all amounts (including, without
\n limitation, amounts payable as damages in case of default) to be paid
\n by Lessee to such Beneficiary pursuant to the Lease, the Construction
\n Agency Agreement and\/or any other Operative Document to which Lessee is
\n or is to be a party whether such obligations now exist or arise
\n hereafter, as and when the same shall become due and payable in
\n accordance with the terms thereof (whether at stated maturity, by
\n required prepayment, declaration, acceleration, demand or otherwise),
\n including Base Rent, Supplemental Rent, Construction Period Maximum
\n Guaranty Amount, or Residual Value Guaranty Amount; and<\/p>\n
(b) the due, prompt and faithful performance of, and
\n compliance with, all other obligations, covenants, terms, conditions
\n and undertakings of Lessee in favor of such Beneficiary contained in
\n the Lease, the Construction Agency Agreement and each other Operative
\n Document to which Lessee (including in its capacity as Construction
\n Agent) is or is to be a party in accordance with the terms thereof.<\/p>\n
Guarantor further agrees to pay any and all reasonable costs and
\nexpenses (including reasonable fees and disbursements of counsel) that may be
\npaid or actually incurred by any Beneficiary in collecting any Guaranteed
\nObligations and\/or in preserving or enforcing any rights under this Guaranty or
\nunder the Guaranteed Obligations.<\/p>\n
This Guaranty is a guaranty of payment, performance and compliance and
\nnot of collectability, is in no way conditioned or contingent upon any attempt
\nto collect from or enforce performance or compliance by Lessee or upon any other
\nevent, contingency or circumstance whatsoever, and shall be<\/p>\n
-2-
\n 5
\n Parent Guaranty<\/p>\n
binding upon and against Guarantor without regard to the validity or
\nenforceability of the Lease, the Construction Agency Agreement or any other
\nOperative Document.<\/p>\n
SECTION 2. Bankruptcy. In the event of Lessee’s rejection of the Lease
\nin a bankruptcy or insolvency proceeding, Guarantor agrees that it will pay
\nforthwith all payments required to be made by Lessee under the Lease as though
\nthe rejection had not occurred.<\/p>\n
SECTION 3. Guarantor’s Guaranteed Obligations Unconditional. The
\ncovenants and agreements of Guarantor set forth in this Guaranty shall be
\nprimary obligations of Guarantor, and such obligations shall be continuing,
\nabsolute and unconditional, shall not be subject to any counterclaim, setoff,
\ndeduction, diminution, abatement, recoupment, suspension, deferment, reduction
\nor defense (other than full and strict compliance by Guarantor with its
\nobligations hereunder), whether based upon any claim that Lessee, Guarantor, any
\nObligor or any other Person may have against any Beneficiary or any other Person
\nor otherwise, and shall remain in full force and effect without regard to, and
\nshall not be released, discharged or in any way affected by, any circumstance or
\ncondition whatsoever (whether or not Lessee, Guarantor, any Obligor or such
\nother Person shall have any knowledge or notice thereof) including, without
\nlimitation:<\/p>\n
(a) any amendment, modification, addition, deletion,
\n supplement or renewal to or of or other change in the Guaranteed
\n Obligations, the Lease, the Construction Agency Agreement or any other
\n Operative Document or any of the agreements referred to in any thereof,
\n or any other instrument or agreement applicable to the Lease, the
\n Construction Agency Agreement, any other Operative Document or any of
\n the parties to such agreements, or to the Properties, or any
\n assignment, mortgage or transfer thereof or of any interest therein or
\n any furnishing or acceptance of additional security for, guaranty of or
\n right of offset with respect to, any of the Guaranteed Obligations; or
\n the failure of any security or the failure of any Beneficiary to
\n perfect, insure, protect or secure any interest in any collateral;<\/p>\n
(b) any failure, omission or delay on the part of either
\n Lessee, any other Obligor or any Beneficiary to conform or comply with
\n any term of any instrument or agreement referred to in clause (a)
\n above;<\/p>\n
(c) any extension of the Construction Period Termination Date,
\n the Lease Term or the Maturity Date;<\/p>\n
(d) any waiver, consent, extension, indulgence, compromise,
\n release or other action or inaction under or in respect of any
\n instrument, agreement, guaranty, right of offset or security referred
\n to in clause (a) above or any obligation or liability of Lessee, any
\n other Obligor or any Beneficiary, or any exercise or non-exercise by
\n any Beneficiary of any right, remedy, power or privilege under or in
\n respect of any such instrument, agreement, guaranty, right of offset or
\n security or any such obligation or liability;<\/p>\n
(e) any bankruptcy, insolvency, reorganization, arrangement,
\n readjustment, composition, liquidation or similar proceeding with
\n respect to either Lessee, any other Obligor,<\/p>\n
-3-
\n 6
\n Parent Guaranty<\/p>\n
any Beneficiary or any other Person or any of their respective
\n properties or creditors, or any action taken by any trustee or receiver
\n or by any court in any such proceeding, or any of their respective
\n properties or creditors or the imposition of any stay or injunction in
\n connection with any such proceeding;<\/p>\n
(f) any discharge, termination, cancellation, frustration,
\n irregularity, invalidity or unenforceability, in whole or in part, of
\n any Operative Document or provision thereof;<\/p>\n
(g) any defect in the title, compliance with specifications,
\n condition, design, operation or fitness for use of, or any damage to or
\n loss or destruction of, or any interruption or cessation in the use of
\n the Properties by either Lessee or any other Person for any reason
\n whatsoever (including, without limitation, any governmental prohibition
\n or restriction, condemnation, requisition, seizure or any other act on
\n the part of any governmental or military authority, or any act of God
\n or of any public enemy) regardless of the duration thereof (even though
\n such duration would otherwise constitute a frustration of a lease),
\n whether or not resulting from accident and whether or not without fault
\n on the part of Lessee or any other Person;<\/p>\n
(h) any merger or consolidation of either Lessee or Guarantor
\n into or with any other Person or any sale, lease or transfer of any of
\n the assets of either Lessee or Guarantor to any other Person;<\/p>\n
(i) any change in the ownership of any limited liability
\n company interests of either Lessee or any corporate change in either
\n Lessee; or<\/p>\n
(j) any other occurrence or circumstance whatsoever, whether
\n similar or dissimilar to the foregoing and any other circumstance that
\n might otherwise constitute a legal or equitable defense or discharge of
\n the liabilities of a guarantor or surety or that might otherwise limit
\n recourse against Guarantor.<\/p>\n
The obligations of Guarantor set forth herein constitute the full
\nrecourse obligations of Guarantor enforceable against it to the full extent of
\nall its assets and properties.<\/p>\n
Notwithstanding anything herein to the contrary, Guarantor may assert,
\nas a defense to the enforcement of its obligations hereunder, the statute of
\nlimitations.<\/p>\n
SECTION 4. Waiver and Agreement. Guarantor waives any and all notice of
\nthe creation, renewal, extension or accrual of any of the Guaranteed Obligations
\nand notice of or proof of reliance by any Beneficiary upon this Guaranty or
\nacceptance of this Guaranty, and the Guaranteed Obligations, and any of them,
\nshall conclusively be deemed to have been created, contracted or incurred in
\nreliance upon this Guaranty. Guarantor unconditionally waives, to the extent
\npermitted by law: (a) acceptance of this Guaranty and proof of reliance by any
\nBeneficiary hereon; (b) except as otherwise required in the Operative Documents,
\nnotice of any of the matters referred to in Section 3 hereof, or any right to
\nconsent or assent to any thereof; (c) except as otherwise required in the
\nOperative Documents, all notices that may be required by statute, rule of law or
\notherwise, now or hereafter in effect, to preserve<\/p>\n
-4-
\n 7
\n Parent Guaranty<\/p>\n
intact any rights against Guarantor, including, without limitation, any demand,
\npresentment, protest, proof or notice of nonpayment under the Lease or any other
\nOperative Document, and notice of default or any failure on the part of Lessee
\nor any other Obligor to perform and comply with any covenant, agreement, term or
\ncondition of any Operative Document to which it is a party; (d) any requirement
\nof diligence on the part of any Person; (e) any requirement of any Beneficiary
\nto exhaust any remedies, to marshal the sales of assets or to mitigate the
\ndamages resulting from an event of default (after expiration of any applicable
\nnotice and cure periods) by any Person under the Lease, the Construction Agency
\nAgreement or any other Operative Document; (f) except as otherwise required in
\nthe Operative Documents, any notice of any sale, transfer or other disposition
\nby any Person of any right under, title to or interest in the Lease, the
\nConstruction Agency Agreement or any other Operative Document or the Collateral;
\nand (h) any other circumstance whatsoever that might otherwise constitute a
\nlegal or equitable discharge, release or defense of a guarantor or surety, or
\nthat might otherwise limit recourse against Guarantor hereunder (other than
\nindefeasible payment and performance of the Guaranteed Obligations).<\/p>\n
Guarantor agrees that this Guaranty shall be automatically reinstated
\nif and to the extent that for any reason any payment by or on behalf of Lessee
\nor any other Obligor is rescinded or must be otherwise restored by any of the
\nBeneficiaries, whether as a result of any proceedings in bankruptcy or
\nreorganization or otherwise.<\/p>\n
Guarantor further agrees that, without limiting the generality of this
\nGuaranty, if a Lease Event of Default shall have occurred and be continuing and
\nCollateral Agent (or, if all Commercial Paper Notes have been paid in full,
\nLessor) is prevented by applicable law from exercising its remedies under the
\nLease, Collateral Agent or Lessor, as the case may be, shall be entitled to
\nreceive hereunder from Guarantor, upon demand therefor, the sums which would
\nhave otherwise been due from Lessee had such remedies been exercised.<\/p>\n
SECTION 5. Subrogation, etc. Guarantor will not exercise any rights
\nwhich it may acquire by way of rights of subrogation under this Guaranty, by any
\npayment made hereunder or otherwise, until the prior payment, in full and in
\ncash, of all Guaranteed Obligations (or such lesser amount as is required to be
\npaid by Guarantor hereunder pursuant to Section 1) and other amounts owing by
\nGuarantor hereunder. Any amount paid to Guarantor on account of any such
\nsubrogation rights prior to the payment in full of all Guaranteed Obligations
\nand other amounts shall be held in trust for the benefit of the Beneficiaries
\nand shall immediately be paid to Collateral Agent (or, if all Commercial Paper
\nNotes have been paid in full, Lessor) and credited and applied against the
\nGuaranteed Obligations, whether matured or unmatured, in accordance with the
\nprovisions of Article X of the Participation Agreement; provided, however, that
\nif<\/p>\n
(a) Guarantor has made payment to Collateral Agent (or Lessor,
\n as the case may be) of all or any part of the Guaranteed Obligations,
\n and<\/p>\n
(b) all Guaranteed Obligations and other amounts owing by
\n Guarantor hereunder have been paid in full,<\/p>\n
-5-
\n 8
\n Parent Guaranty<\/p>\n
each Beneficiary agrees that, at Guarantor’s request, Collateral Agent, on
\nbehalf of the Beneficiaries, will execute and deliver to Guarantor appropriate
\ndocuments (without recourse and without representation or warranty) necessary to
\nevidence the transfer by subrogation to Guarantor of an interest in the
\nGuaranteed Obligations resulting from such payment by Guarantor. So long as any
\nGuaranteed Obligations remain outstanding, Guarantor shall refrain from taking
\nany action or commencing any proceeding against Lessee or any other Obligor (or
\nits successors or assigns, whether in connection with a bankruptcy proceeding or
\notherwise) to recover any amounts in the respect of payments made under this
\nGuaranty to any Beneficiary.<\/p>\n
SECTION 6. Rights of the Beneficiaries. This Guaranty is made for the
\nbenefit of, and shall be enforceable by, each Beneficiary with respect to such
\nGuaranteed Obligations as are owed to such Beneficiary.<\/p>\n
SECTION 7. Term of Guaranty. This Guaranty and all guaranties,
\ncovenants and agreements of Guarantor contained herein, shall continue in full
\nforce and effect and shall not be discharged until such time as all the
\nGuaranteed Obligations shall be indefeasibly paid in full in cash and all the
\nagreements of Lessee and Guarantor hereunder and under the Lease, the
\nConstruction Agency Agreement and the other Operative Documents shall have been
\nduly performed. If, as a result of any bankruptcy, dissolution, reorganization,
\ninsolvency, arrangement or liquidation proceedings (or proceedings similar in
\npurpose or effect) or if for any other reason, any payment received by any
\nBeneficiary in respect of the Guaranteed Obligations is rescinded or must be
\nreturned by such Beneficiary, this Guaranty shall continue to be effective as if
\nsuch payment had not been made and, in any event, as provided in the preceding
\nsentence.<\/p>\n
SECTION 8. Notices, etc. All notices, demands, requests, consents,
\napprovals and other instruments hereunder shall be in writing and shall be
\ndeemed to have been properly given if given as provided for in Section 12.3 of
\nthe Participation Agreement.<\/p>\n
SECTION 9. Severability of this Guaranty. In case any provisions of
\nthis Guaranty or any application thereof shall be invalid, illegal or
\nunenforceable, the validity, legality and enforceability of the remaining
\nprovisions and statements and any other application thereof shall not in any way
\nbe affected or impaired thereby. To the extent permitted by law, Guarantor
\nhereby waives any provision of law that renders any term or provision hereof
\ninvalid or unenforceable in any respect.<\/p>\n
SECTION 10. Jury Trial. GUARANTOR WAIVES ANY RIGHT TO A TRIAL BY JURY
\nIN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY
\nOR ANY OTHER OPERATIVE DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
\nAGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
\nHEREWITH OR THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION
\nWITH THIS GUARANTY OR ANY OTHER OPERATIVE DOCUMENT AND AGREES THAT ANY SUCH
\nACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.<\/p>\n
-6-
\n 9
\n Parent Guaranty<\/p>\n
SECTION 11. Amendments. This Guaranty may not be amended or terminated
\nexcept in accordance with Section 12.5 of the Participation Agreement.<\/p>\n
SECTION 12. Miscellaneous. THIS GUARANTY SHALL IN ALL RESPECTS BE
\nGOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
\nYORK, INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT
\nEXCLUDING TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL OTHER CONFLICTS
\nOF LAW PRINCIPLES AND CHOICE OF LAW RULES OF NEW YORK. This Guaranty shall be
\nbinding upon Guarantor and its successors, transferees and assigns and inure to
\nthe benefit of and be enforceable by the respective successors, transferees, and
\nassigns of the Beneficiaries, provided, however, that Guarantor may not delegate
\nany of its obligations hereunder except in accordance with Sections 8.6 and
\n12.17 of the Participation Agreement. The table of contents and headings in this
\nGuaranty are for purposes of reference only, and shall not limit or otherwise
\naffect the meaning hereof. This Guaranty may be executed in any number of
\ncounterparts and by different parties hereto on separate counterparts, each
\nexecuted counterpart constituting an original, but all of which together shall
\nconstitute one agreement.<\/p>\n
[The remainder of this page
\n has been left intentionally blank]<\/p>\n
-7-
\n 10
\n Parent Guaranty<\/p>\n
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed
\nas of the date first above written.<\/p>\n
THE GOLDMAN SACHS GROUP, INC.<\/p>\n
By \/s\/ Barry L. Zubrow
\n —————————
\n Name: Barry L. Zubrow
\n Title: Executive Vice President<\/p>\n
-8-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7660],"corporate_contracts_industries":[9418],"corporate_contracts_types":[9560,9565],"class_list":["post-41196","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-goldman-sachs-group-inc","corporate_contracts_industries-financial__securities","corporate_contracts_types-finance","corporate_contracts_types-finance__guaranty"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41196","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41196"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41196"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41196"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41196"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}