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EXHIBIT 10.7
COMPLETION GUARANTY
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TO:
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GENERAL ELECTRIC CAPITAL CORPORATION, AS AGENT,
AND TO THE NOTE B LENDERS THAT ARE, OR BECOME, PARTIES TO THE
LOAN AGREEMENT
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THIS COMPLETION GUARANTY (" Guaranty "), dated as of March
18, 2008 is made by PRIME GROUP REALTY,
L.P. , a Delaware limited partnership
(the " Guarantor
"), in favor of GENERAL
ELECTRIC CAPITAL CORPORATION , a Delaware
corporation (" GECC
"), as Collateral Agent for the Note B Lenders
that are or become a party to the Loan Agreement described below
(in such capacity, " Collateral
Agent "), and is executed pursuant to
(i) that certain Loan Agreement (Loan B) dated as of the date
of this Guaranty between 330 N. WABASH
AVENUE, L.L.C. , a Delaware limited
liability company (the " Borrower "), the lenders from
time to time a party thereto (the " Note B Lenders "), and Collateral
Agent (such Loan Agreement, as it may from time to time be
supplemented, modified and amended, being referred to in this
Guaranty as the " Agreement "), and (ii) that
certain Promissory Note B dated as of the date of this Guaranty
executed by Borrower in favor GECC as a lender (such Promissory
Note B, together with all promissory notes delivered in
substitution or exchange thereof, in each case as the same may be
from time to time consolidated, split, amended, modified, extended,
renewed, substituted and/or supplemented, shall be collectively
referred to in this Guaranty as " Note B "), the provisions of which are
incorporated in this Guaranty by reference. Capitalized terms used
in this Guaranty and not otherwise defined are used with the
meanings set forth in the Agreement or in Note B.
Subject to the terms and conditions set forth in the
Agreement, Note B and the Mortgages (as hereinafter defined),
the Note B Lenders have agreed to make a loans to the Borrower
in the aggregate amount of up to $100,000,000.00 (collectively,
" Loan B ") to provide a portion of the financing for the Project (as
defined in the Agreement). Loan B will be secured by
(i) that certain Mortgage, Assignment of Leases, Security
Agreement and Fixture Filing and (ii) that certain Leasehold
Mortgage, Assignment of Leases, Security Agreement and Fixture
Filing (collectively, the " Mortgages "), each executed by
the Borrower in favor of the Collateral Agent (on behalf of the
Note B Lenders and "Lender A" described therein) and
encumbering a portion of the Project. As a condition of the
obligation of the Note B Lenders to make Loan B, the
Guarantor is required to execute and deliver to Collateral Agent
this Guaranty.
To induce the Note B Lenders to make Loan B and
for other valuable consideration, the Guarantor agrees as
follows:
1.
Guaranteed Obligations
. The Guarantor absolutely and unconditionally
guarantees the punctual and complete payment and performance when
due of all of the following obligations of the Borrower
(collectively, the " Guaranteed
Obligations "):
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(a) the
Borrower's obligation to deposit or cause to be deposited into the
TI/LC/CapEx/DS Reserve described in Section 34 of Note B
an amount equal to the "Reserve Deficiency" described therein, as
and when required by Section 34 of Note B;
(b) the
Borrower's obligation to complete, in accordance with
Section 5.5 of the Agreement, each Stage of Capex Work
commenced by Borrower, which obligation includes, as to each such
Stage, the obligation to complete all Capex Work for such Stage
within the Stage Construction Schedule for such Stage, Lien-free
and in accordance with the construction contracts and plans and
specifications therefor approved by the Collateral
Agent.
The Guarantor agrees that Collateral Agent's damages
for any breach of the guaranty set forth in clause (b) above,
with respect to any Stage, shall be the positive difference, if
any, between,(i) the full cost of completing (in accordance
with Section 5.5 of the Agreement) all of the remaining Capex
Work for such Stage (as of the date Borrower is in breach of its
completion obligation), and (ii) the amount of an
then-remaining undisbursed funds in the Stage Budget for such
Stage. Guarantor waives any right it may have to assert that any
other measure of damages is an applicable or adequate remedy for
any breach of the guaranty set forth in clause (b),
above.
Upon the occurrence of any Event of Default, all
Guaranteed Obligations shall, at the option of Collateral Agent,
immediately become due and payable by the Guarantor without
protest, presentment, notice of dishonor, demand or further notice
of any kind, all of which are expressly waived by the Guarantor,
and irrespective of whether any Guaranteed Obligations have then
become due and payable by the Borrower or any other Person (each of
the Borrower and any such other Person other than Guarantor being
referred to in this Guaranty as an " other Borrower Party ").
2.
Nature of Guaranty . This Guaranty is a guaranty of payment and performance and
not of collection, is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future,
including (a) interest and other Guaranteed Obligations
arising or accruing after bankruptcy of any other Borrower Party or
any sale or other disposition of any security for this Guaranty or
for the obligations of any other Borrower Party (any such security
being referred to in this Guaranty as the "
Security "), and
(b) any Guaranteed Obligations that survive repayment of Loan
B. This Guaranty and any Security for this Guaranty shall continue
to be effective or be reinstated, as the case may be, if at any
time any payment or performance of any Guaranteed Obligations is
rescinded or must otherwise be returned by Collateral Agent, the
Note B Lenders or any other Person upon the bankruptcy,
insolvency or reorganization of any other Borrower Party or
otherwise, all as though such payment or performance had not
occurred. The Guarantor shall have no authority to revoke this
Guaranty, but if any such revocation shall be deemed to have
occurred by operation of law or otherwise, the provisions of this
Guaranty shall continue to apply notwithstanding such
revocation.
3.
Obligations Independent
. The obligations of the Guarantor under this
Guaranty are independent of the obligations of any other Borrower
Party under the Loan Documents (such obligations of any other
Borrower Party, including the Borrower's obligations in respect of
the Guaranteed Obligations, being referred to in this Guaranty as
the " Other Obligations
") and any Security, and the enforceability of any
Security for this Guaranty is
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likewise independent of any such Other Obligations
and any other Security. Collateral Agent may bring action against
the Guarantor and otherwise enforce this Guaranty or any Security
for this Guaranty without bringing action against any other
Borrower Party or joining any other Borrower Party in any action
against the Guarantor, and otherwise independently of any other
right, power or remedy (each, a " Remedy ") that may be available
to Lender at any time with respect to any Other Obligations or
Security. The Guarantor waives any right to require Collateral
Agent or Lenders at any time to proceed against any other Borrower
Party, apply any Security or otherwise enforce, proceed against or
exhaust any Other Obligations or Security or pursue any other
Remedy in Collateral Agent's or Note B Lenders'
power.
4.
Action with Respect to Other Obligations or
Security . The Guarantor authorizes
Collateral Agent and each Note B Lender, without notice or
demand and without affecting its liability under or the
enforceability of this Guaranty or any Security for this Guaranty,
from time to time to:
(a) supplement,
modify, amend, renew, extend, accept partial payments or
performance on or otherwise change the time, manner or place of
payment or performance or the interest rate or other terms or the
amount of, or release, reconvey, terminate, waive, abandon,
subordinate, exchange, substitute, transfer or consent to the
transfer of or enter into or give any other agreement, approval,
waiver or consent with respect to or in exchange for any Other
Obligations or Security or any of the Loan Documents (including
release the Fourteenth Floor (as defined in Note B) pursuant
to Section 29 of Note B);
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(b)
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receive and hold
additional Security or guaranties;
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(c) release
any other B
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