Exhibit 10.74
GUARANTY-II
LOAN NO. 753865
THIS GUARANTY (as the same may from time to time hereafter be modified,
supplemented or amended, the "GUARANTY-II") is made as of April 6, 2004 by
INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation, having an
office at 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000 ("GUARANTOR"), in
favor of PRINCIPAL LIFE INSURANCE COMPANY, an Iowa corporation, having a
principal place of business and post office address at c/o Principal Real Estate
Investors, LLC, 000 Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000 ("LENDER").
RECITALS:
Lender has agreed to make a loan (the "LOAN") in the original principal sum
of Five Million Three Hundred Forty-two Thousand and 00/100 Dollars
($5,342,000.00) (the "LOAN AMOUNT") to INLAND SOUTHEAST XXXX'X XXXXX, L.L.C., a
Delaware limited liability company ("Borrower"); and
The Loan is evidenced by Borrower's secured promissory note made payable
and delivered to Lender (as the same may from time to time hereafter be
modified, amended, supplemented, extended or consolidated in writing, and any
note(s) issued in exchange therefor or replacement thereof, the "NOTE") and
further evidenced and secured by a "MORTGAGE" (it being agreed that "Mortgage"
as hereinafter used shall be construed to mean "mortgage" or "deed of trust" or
"trust deed" or "deed to secure debt" as the context so requires) on certain
real estate located in Cabarrus County, North Carolina, together with all
existing improvements constructed thereon, said Premises being more particularly
described in said Mortgage, and an Assignment of Leases ("ASSIGNMENT OF
LEASES"); and
In connection with the Loan, the Borrower has also executed that certain
Environmental Indemnity ("ENVIRONMENTAL INDEMNITY") and Guaranty both for the
benefit of Lender (the Note, Environmental Indemnity, Guaranty, Mortgage and
Assignment of Leases and all other instruments or agreements by which the Loan
is evidenced or secured are hereinafter collectively referred to as the
"UNDERLYING INSTRUMENTS"); and
It is a condition of Lender's agreement to make the Loan that Guarantor be
unconditionally liable for and personally guarantee the payment of $1,083,333.00
of the Indebtedness represented by the Note upon the terms and conditions as are
hereinafter set forth; and
WHEREAS, Guarantor is financially interested in Borrower and is materially
benefited by the consummation of the Loan and has agreed to unconditionally and
personally guarantee the payment of $1,083,333.00 of the Indebtedness
represented by the Note upon the terms and conditions as are hereinafter set
forth.
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NOW, THEREFORE, in order to induce Lender to make the Loan to Borrower,
Guarantor intending to be legally bound, hereby makes the following
representations and warranties to the Lender and hereby covenants and agrees
with the Lender as follows:
1. 1. Guarantor absolutely, irrevocably and unconditionally guarantees to the
Lender payment when due (whether by acceleration or otherwise) of the
principal of, interest on, Make Whole Premium (if any, Default Rate
interest (if any), Late Charges (if any), and all other Indebtedness under
said Note (all of which payments, liabilities and obligations are
hereinafter collectively referred to as the "Guaranteed Obligations-II")
provided, however, that Guarantor's liability hereunder shall not exceed
$1,083,333.00 plus any and all costs to enforce this Guaranty-II and such
is not impacted by any amount of principal paydown unless the principal
amount of the Loan is less than $1,083,333.00. Provided further, however,
the Guaranteed Obligations-II are in addition to the Guaranteed Obligations
as that termed is defined in the Guaranty also of even date herewith.
Borrower and Toys "R" Us - Delaware, Inc. ("Toys R Us") entered into a
lease dated April 19, 2000 ("Toys R Us Lease"). In accordance with
paragraph No. 3 of the First Lease Amendment dated April 10, 2002
("Amendment") to the Toys "R" Us Lease, Toys R Us is, as of the date
hereof, paying 1/2 of the fixed rental obligation provided for the in Toys
R Us Lease. Provided no Event of Default exists under the Loan Documents,
the Guarantor's liability under this Guaranty-II shall be reduced dollar
for dollar as each monthly payment of 1/2 fixed rent is received by
Borrower from Toys R Us and Borrower then makes the applicable monthly debt
service payment to Lender under the Loan. Upon Lender's receipt of the
following, Borrower shall be released in full from the obligations of this
Guaranty-II: (a) evidence satisfactory to Lender, in Lender's reasonable
discretion, that the requirements outlined in paragraph No. 3 of the
Amendment, which then results in Toys R Us being obligated to pay the full
fixed rental obligation provided for in the Toys R Us Lease, have been
satisfied; (b) a lessee's estoppel certificate executed by Toys R Us in
form and content acceptable to Lender indicating, among other things, the
commencement of consecutive full monthly fixed rental payments with all
rental concessions and deferments having expired; and (c) evidence that
Borrower has paid Xxxxxx Enterprises, Inc. and Fourth Quarter Properties IV
("Seller") the fee referenced in the fourth full paragraph of the purchase
contract amendment dated December 18, 2003 (between the Seller and
Borrower) which said fee becomes due from Borrower to the Seller upon the
Toys R Us rental obligation increasing from 1/2 fixed rent to full fixed
rent.
2. Guarantor absolutely, irrevocably and unconditionally waives notice of
acceptance of this Guaranty and notice of any payment, liability or
obligation to which it may apply, and waives presentment, demand of
payment, protest, notice of dishonor or nonpayment of such liabilities
under this Guaranty or any of the Underlying Instruments creating the
Guaranteed Obligations-II and any suit or taking other action by the Lender
against, and
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any other notice to, any party liable thereon or any property which may be
security therefor. The Guarantor further waives any right conferred by
N.C.G.S. Section 26-7 et seq.
3. The Lender may at any time and from time to time without the consent of, or
notice to, Guarantor, without incurring any responsibility to Guarantor and
without impairing or releasing any of the obligations of Guarantor
hereunder, upon or without any terms or conditions and in whole or in part:
(a) renew, alter or change the interest rate, manner, time, place or terms
of payment or performance of any of the Guaranteed Obligations-II, or
any liability incurred directly or indirectly in respect thereof,
whereupon the guaranty herein made shall apply to the Guaranteed
Obligations-II as so changed, extended, renewed or altered;
(b) sell, exchange, release, surrender, and in any manner and in any order
realize upon or otherwise deal with any property at any time directly
and absolutely assigned or pledged or mortgaged to secure the
Guaranteed Obligations-II or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof;
(c) exercise or refrain from exercising any rights against Borrower or any
other person (including Guarantor) or otherwise act or refrain from
acting with regard to the Underlying Instruments, Guaranteed
Obligations-II or this Guaranty;
(d) settle or compromise any of the Guaranteed Obligations-II, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and/or
subordinate the payment of all or any part thereof to the payment of
any liability of Borrower (whether or not then due) to creditors of
Borrower other than the Lender and Guarantor;
(e) apply any sums in whatever manner paid or realized to any liability or
liabilities of Borrower to the Lender regardless of what liability or
liabilities of Borrower remain unpaid;
(f) consent to or waive any breach of or any act, omission or default
under the Underlying Instruments or otherwise amend, modify or
supplement any of such instruments or agreements; and/or
(g) sell, convey or assign, whether into a securitized transaction or
otherwise, all or any part of Lender's interest in this Guaranty and
the Underlying Instruments.
4. (a) No invalidity, irregularity or unenforceability of all or any part of
the Underlying Instruments, the Guaranteed Obligations-II or this
Guaranty, or of any security therefor, shall affect, impair or
constitute a defense to this Guaranty. This
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Guaranty is a direct and primary obligation of Guarantor, and
Guarantor's obligations hereunder are not as a surety. This is a
guaranty of payment and performance, and not merely a guaranty of
collection.
(b) Guarantor acknowledges and agrees that this Guaranty and Guarantor's
obligations with respect to payments and performance under the
Environmental Indemnity shall remain in full force and effect,
notwithstanding the fact that the Note and payments due under the
other Underlying Instruments have been paid in full.
5. (a) Notwithstanding any payment or payments made by Guarantor hereunder,
Guarantor will not assert or exercise any right of the Lender or of
such Guarantor against Borrower to recover the amount of any payment
made by such Guarantor to the Lender by way of subrogation,
reimbursement, contribution, indemnity or otherwise arising by
contract or operation of law, and Guarantor shall not have any right
of recourse to or any claim against assets or property of Borrower,
whether or not the obligations of Borrower have been satisfied, all of
such rights being herein expressly waived by Guarantor. The provisions
of this paragraph shall survive the termination of this Guaranty, and
any satisfaction and discharge of Borrower by virtue of any payment,
court order or any applicable law.
(b) Notwithstanding the provisions of Section 5(a), Guarantor shall have
and be entitled to all rights of subrogation otherwise provided by
applicable law in respect of any payment Guarantor may make or be
obligated to make under this Guaranty, and to assert and enforce the
same, in each case on and after, but at no time prior to, the date
(the "SUBROGATION TRIGGER DATE") which is 91 days after the date on
which all obligations under the Underlying Instruments shall have been
paid or performed in full, if and only if the existence of Guarantor's
rights under this Section 5(b) would not make Guarantor a creditor
(as defined in the Bankruptcy Reform Act of 1978, an amended, 11
U.S.C. Sections 101 et seq., and the regulations adopted and
promulgated pursuant thereto) of Borrower in any insolvency
bankruptcy, reorganization or similar proceeding commenced on or prior
to the Subrogation Trigger Date.
(c) In the event that Guarantor shall advance or become obligated to pay
any sums with respect to any obligation hereby guaranteed or in the
event that for any reason whatsoever the Borrower or any subsequent
owner of the collateral securing the Loan is now, or shall hereafter
become, indebted to Guarantor, Guarantor agrees that the amount of
such sums and of such Indebtedness together with all interest thereon,
shall at all times be subordinate as to the lien, time of payment and
in all other respects, to all sums, including principal, interest and
other Indebtedness, at any time owing to the Lender under any of
the Underlying Instruments. Nothing herein contained is intended or
shall be construed to give to Guarantor any right to participate in
any way in the right, title or interest of the
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Lender in or to the collateral securing the Loan, notwithstanding any
payments made by Guarantor under this Guaranty, all such rights of
participation being hereby expressly waived and released.
6. Guarantor agrees that to the extent that Borrower makes a payment or
payments to Lender, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set
aside or required, for any of the foregoing reasons or for any other
reasons, to be repaid or paid over to a custodian, trustee, receiver or any
other party under any bankruptcy act, state or federal law, common law or
equitable cause, then to the extent of such payment or repayment, the
obligation or part thereof intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made.
7. Guarantor makes the following representations and warranties which shall
survive the execution and delivery of this Guaranty:
(a) Guarantor is and, until the Indebtedness is paid in full, will
continue to (i) be a duly organized and validly existing entity in
good standing under the laws of the state of its formation, (ii) be
duly qualified as a foreign entity in each jurisdiction in which the
nature of its business makes such qualification necessary or
desirable, (iii) have the requisite power and authority to carry on
its business as now being conducted, (iv) have the requisite power to
execute, deliver and perform its obligations under this Guaranty, and
(v) comply with the provisions of all of its organizational documents,
and the Legal Requirements of the state of its formation.
(b) The execution, delivery and performance of this Guaranty (i) are
within the applicable powers of Guarantor; (ii) have been authorized
by all requisite action; (iii) have received all necessary approvals
and consents, corporate, governmental or otherwise; (iv) does not and
will not violate, conflict with, result in a breach of or constitute
(with notice or lapse of time, or both) a default under any provision
of law, any order or judgment of any court or governmental authority,
the articles of incorporation, by-laws, partnership, operating or
trust agreement, or other governing instrument of Guarantor, or any
indenture, agreement or other instrument to which Guarantor is a party
or by which Guarantor or any of Guarantor's assets is or may be bound
or affected; (v) does not and will not result in the creation or
imposition of any lien, charge or encumbrance whatsoever upon any of
Guarantor's assets; and (vi) does not and will not require any
authorization or license from, or any filing with, any governmental
authority or other body.
(c) This Guaranty constitutes the legal, valid and binding obligations of
Guarantor, enforceable against Guarantor in accordance with its terms,
except as may be limited by (i) bankruptcy, insolvency, reorganization
or other similar laws
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affecting the rights of creditors generally, and (ii) general
principles of equity (regardless of whether considered in a proceeding
in equity or at law).
8. Guarantor and Borrower are separate and distinct entities with no identity
of interest with respect to any Indebtedness which may become owed or any
payments which may be made hereunder. Borrower is not contractually bound
to Guarantor with respect to any payments hereafter made under this
Guaranty in any manner which would have the effect of imputing the
liability of Guarantor hereunder to Borrower.
9. Guarantor is related and/or affiliated with Borrower, has personal
knowledge of and is familiar with Borrower's business affairs, books and
records and has the ability to influence Borrower's financial decisions.
Guarantor represents that Borrower is in sound financial condition as of
the date of this Guaranty.
10. Nothing herein contained shall in any manner affect the lien or priority of
the Mortgage, and upon the occurrence of an Event of a Default, the Lender
may invoke any remedies it may have under the Underlying Instruments, or
this Guaranty, either concurrently or successively and the exercise of any
one or more of such remedies shall not be deemed an exhaustion of such
remedy or remedies or a waiver of any other remedy or remedies and shall
not be deemed an election of remedies. Guarantor hereby specifically waives
any defense to its performance under this Guaranty based upon an election
of remedies by Lender, including but not limited to an election to
foreclose by nonjudicial sale under any deed of trust, or security
agreement and pursue any other remedy which destroys, lessens or otherwise
affects Guarantor's subrogation rights and/or its rights to reimbursement
from or to proceed against Borrower or any other person, when resulting
from the judicial or nonjudicial foreclosure (under any deed of trust, or
security agreement) or the selling or otherwise disposing of or collecting
or applying any property, real or personal, securing the Note, or
otherwise. The exercise by the Lender of any such remedies shall not
release or discharge Guarantor from its obligations hereunder unless and
until the full amount of the Indebtedness evidenced by the Note and secured
as aforesaid has been fully paid and satisfied, and any such release or
discharge shall be subject to the provisions of paragraph 4(b) hereof.
11. This Guaranty shall remain in full force and effect until all obligations
of the Borrower under the Underlying Instruments have been satisfied in
full and are no longer subject to disgorgement under any applicable state
or federal creditor rights or bankruptcy laws. No delay on the part of the
Lender in exercising any options, powers or rights, or the partial or
single exercise thereof, shall constitute a waiver thereof. No waiver of
any rights hereunder, and no modification or amendment of this Guaranty,
shall be deemed to be made by the Lender unless the same shall be in
writing, duly signed on behalf of the Lender, and each such waiver (if any)
shall apply only with respect to the specific instance involved and shall
in no way impair the rights of the Lender or the obligations of Guarantor
to the Lender in any other respect at any other time. This Guaranty and the
rights and obligations of the Lender and of Guarantor hereunder shall be
governed and
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construed in accordance with the laws of the state of North Carolina,
without regard to its conflicts of law principles and this Guaranty is
binding upon Guarantor, Guarantor's heirs, personal representatives and
permitted successors or assigns, and shall inure to the benefit of the
Lender and its successors or assigns.
12. Guarantor acknowledges that copies of the Underlying Instruments have been
made available to Guarantor and that Guarantor is familiar with their
contents. Guarantor affirmatively agrees that upon any Permitted Transfer
effected in accordance with the provisions of the Underlying Instruments,
it shall not be necessary for Guarantor to reaffirm its continuing
obligations under this Guaranty, but Guarantor will do so upon request by
Lender; provided, however, in the event a Permitted Transfer under items
(ii) or (vi) of the Permitted Transfers occurs in compliance with the terms
and conditions stated in the Mortgage, then Borrower may provide a
substitute guarantor, acceptable to Lender in Lender's sole discretion, to
assume the obligations of Guarantor under terms and conditions acceptable
to Lender. Lender's approval of the substitute guarantor shall be deemed
granted so long as such substitute guarantor is a Qualified Successor.
13. GUARANTOR AND LENDER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE,
TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY ACTIONS BROUGHT BY
GUARANTOR OR LENDER IN CONNECTION WITH THIS GUARANTY, ANY OF THE LOAN
DOCUMENTS, THE INDEBTEDNESS SECURED HEREBY, OR ANY OTHER STATEMENTS OR
ACTIONS OF LENDER.
14. Each notice, consent, request or other communication under this Guaranty
(each a "Notice") which any party hereto may desire or be required to give
to the other shall be deemed to be adequate and sufficient notice if given
in writing and service is made by either (i) registered or certified mail,
postage prepaid, in which case such notice shall be deemed to have been
received three (3) business days following deposit to U.S. mail; or (ii)
nationally recognized overnight air courier, next day delivery, prepaid, in
which case such notice shall be deemed to have been received one (1)
business day following delivery to such nationally recognized overnight air
courier. All Notices shall be addressed to Guarantor at its address given
on the first page hereof, or to Lender at c/o Principal Real Estate
Investors, LLC, 000 Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000, Attn:
Commercial Real Estate Servicing, Loan No. 753865, or to such other place
as any party may by notice in writing to the other parties designate as a
place for service of notice.
15. Each Guarantor (if more than one) whose signature appears below shall be
deemed to be bound by the provisions of this Guaranty and the Guaranteed
Obligations-II, whether each signature was affixed at the same or different
times, and the term "Guarantor" as used herein shall be deemed to refer to
each individually, as well as collectively, and each of the undersigned
shall be jointly and severally liable for the Guaranteed Obligations-II
hereunder, both personally and with recourse, irrespective of the recourse
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or non-recourse nature of the Underlying Instruments. Guarantor agrees that
if this Guaranty is placed in the hands of an attorney for enforcement,
Guarantor will reimburse Lender all expenses incurred, including attorney's
fees.
16. This Guaranty may be executed in counterparts, each of which shall be
deemed an original; and such counterparts when taken together shall
constitute but one agreement.
17. Capitalized terms used herein and not otherwise defined shall have the
meanings given to them in the Underlying Instruments.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly executed
under seal and delivered as of the date first set forth above.
(REMAINDER OF PAGE INTENTIONALLY BLANK
SIGNATURES ON NEXT PAGE)
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SIGNATURE PAGE OF GUARANTOR
TO GUARANTY
42 - 1579325
----------------------------------------
(Guarantor's Identification Number)
INLAND WESTERN RETAIL REAL ESTATE
TRUST, INC., a Maryland corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Name: XXXXXXX X. XXXXXX
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Title: Vice President
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