Exhibit 10.79
LOAN NO. 6518303
PAYMENT GUARANTY
THIS PAYMENT GUARANTY ("GUARANTY"), dated as of March 26, 2004, by INLAND
WESTERN SEVERN, L.L.C., a Delaware limited liability company, having an address
of 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000 ("GUARANTOR"), in favor of
XXXX XXXXXXX LIFE INSURANCE COMPANY, a Massachusetts corporation, its
successors, participants and assigns ("LENDER").
RECITALS:
WHEREAS, Xxxx Xxxxxxx Life Insurance Company, a Massachusetts corporation
has agreed to make a loan (the "LOAN") in the original principal amount of Six
Million Sixty-Seven Thousand One Hundred Eighty-Three and No/100 Dollars
($6,067,183.00) (the "LOAN AMOUNT") to Inland Western Severn NB, L.L.C., a
Delaware limited liability company (the "BORROWER"); and
WHEREAS, said Loan is to be evidenced by that certain Promissory Note of
even date herewith payable to the order of Lender in the original principal sum
of Six Million Sixty-seven Thousand One Hundred Eighty-three and No/100 Dollars
($6,067,183.00) (as may be modified, amended, supplemented, extended or
consolidated in writing and any note(s) issued in exchange therefor or
replacement thereof, the "Note"). The Note bears interest at the rate and is
payable in the manner provided therein; and
WHEREAS, it was a condition of Lender's agreement to make the Loan that the
Guarantor be secondarily liable for and personally guarantee the payment of the
indebtedness represented by the Note upon the terms and conditions as are
hereinafter set forth; and
WHEREAS, it was a further condition of Lender's agreement to make the Loan
that this Guaranty be secured by an Indemnity Deed of Trust, Assignment of
Leases and Rents, Security Agreement and Fixture Filing of even date herewith
(the "DEED OF TRUST") on certain real estate owned by Guarantor and located in
Xxxx Arundel County, Maryland, together with all existing improvements
constructed thereon, said property being particularly described in said Deed of
Trust (the "TRUST PROPERTY"), and an Indemnity Assignment of Leases and Rents of
even date herewith (the "ASSIGNMENT") (the Note, this Guaranty, the Deed of
Trust, the Assignment and all other instruments or agreements evidencing,
guarantying and/or securing the indebtedness evidenced by the Note or any
guaranties of the Note are hereinafter collectively referred to as the
"UNDERLYING INSTRUMENTS"); and
WHEREAS, Guarantor is the sole member of Borrower and is materially
benefited by the consummation of the Loan and has agreed to unconditionally and
personally guarantee payment of the indebtedness represented by the Note and the
performance of any and all other liabilities and obligations of Borrower and
Guarantor under the Underlying Instruments upon the terms and conditions as are
hereinafter forth.
LOAN NO. 6518303
NOW, THEREFORE, in order to induce Lender to make the Loan to Borrower,
Guarantor hereby makes the following representations and warranties to the
Lender and hereby covenants and agrees with Lender as follows:
1. The Guarantor absolutely, irrevocably and unconditionally guarantees
to the Lender payment when due (whether by acceleration or otherwise) of the
principal of, interest on, and premium, if any, under the Note and the full,
faithful and timely performance of any and all other liabilities and obligations
of Borrower whether now existing or hereafter incurred under the Underlying
Instruments (all of which payments, and liabilities and obligations are
hereinafter collectively referred to as the "GUARANTEED OBLIGATIONS").
2. This Guaranty is secured by the Deed of Trust and the Assignment and
by certain of the other Underlying Instruments.
3. The 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 and any suit or taking other action by the Lender against, and any
other notice to, any party liable thereon or any property which may be security
therefor.
4. The Lender may at any time and from time to time without the consent
of, or notice to, the Guarantor, without incurring any responsibility to the
Guarantor and without impairing or releasing any of the obligations of the
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, or any liability
incurred directly or indirectly in respect thereof, whereupon this Guaranty
shall apply to the Guaranteed Obligations 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
or any liabilities (including any of those hereunder) incurred directly or
indirectly in respect thereof pursuant to and in accordance with the Underlying
Instruments;
(c) exercise or refrain from exercising any rights against Borrower or any
other person (including the Guarantor) or otherwise act or refrain from acting
with regard to the Underlying Instruments, Guaranteed Obligations or this
Guaranty;
(d) settle or compromise any of the Guaranteed Obligations, any security
therefor or any liability (including any of those hereunder) incurred directly
or indirectly
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LOAN NO. 6518303
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 the Guarantor;
(e) apply, in accordance with the provisions of the Underlying
Instruments, any sums in whatever manner paid or realized to any liability or
liabilities of Borrower or Guarantor to the Lender regardless of what liability
or liabilities of Borrower or Guarantor 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 all or any part of Lender's interest in this
Guaranty and the Underlying Instruments.
5. No invalidity, irregularity or unenforceability of all or any part of
the Underlying Instruments, the Guaranteed Obligations or this Guaranty, or of
any security therefor, shall affect, impair or constitute a defense to this
Guaranty. This Guaranty is a direct and primary obligation of the 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.
6. (a) Notwithstanding any provision to the contrary contained in the
Underlying Instruments or this Guaranty, the Guarantor hereby unconditionally
and irrevocably waives (i) any and all rights of subrogation (whether arising
under contract, 11 U.S.C. Section 509 or otherwise), to the claims, whether
existing now or arising hereafter, the Lender may have against the Borrower, and
(ii) any and all rights of reimbursement, contribution or indemnity against the
Borrower or any future Guarantors of any obligations under the Underlying
Instruments) which may have heretofore arisen or may hereafter arise in
connection with any guaranty or pledge or grant of any lien or security interest
made in connection with any obligations under the Underlying Instruments unless
and until all amounts owing to Lender pursuant to the Underlying Instruments
have been paid in full, the lien of the Deed of Trust has been released of
record and all applicable time periods have expired during which a bankruptcy
court could order Lender to disgorge moneys paid to it. The Guarantor hereby
acknowledges that the waiver contained in the preceding sentence (the
"SUBROGATION WAIVER") is given as an inducement to the Lender to enter into the
Underlying Instruments and, in consideration of the Lender's willingness to
enter into the Underlying Instruments, the Guarantor agrees not to amend or
modify in any way the Subrogation Waiver without the Lender's prior written
consent. If any amount shall be paid to the Guarantor on account of any claim
set forth at any time when all of the obligations under the Underlying
Instruments shall not have been paid or performed in full, such amount shall be
held in trust by such Guarantor for the Lender's benefit, shall be segregated
from the other funds of such Guarantor and shall forthwith be paid over to the
Lender to be applied in whole or in part by the Lender against such obligations,
whether matured or unmatured. Nothing contained herein is
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LOAN NO. 6518303
intended or shall be construed to give to the Guarantor any rights of
subrogation or right to participate in any way in the Lender's rights, title or
interest in the Underlying Instruments, notwithstanding any payments made by the
Guarantor under this Guaranty, all such rights of subrogation and participation
being hereby expressly waived and released.
(b) In the event that the 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 the
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 amounts, at any time owing to the
Lender under any of the Underlying Instruments and that Guarantor shall not be
entitled to enforce or receive payment thereof until all such sums owing to the
Lender have been paid. Nothing herein contained is intended or shall be
construed to give to the Guarantor any right to participate in any way in the
right, title or interest of the Lender in or to the collateral securing the
loan, notwithstanding any payments made by the Guarantor under this Guaranty,
all such rights of participation being hereby expressly waived and released.
7. The 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 and the Guarantor shall be primarily liable for
this obligation.
8. The Guarantor makes the following representations and warranties which
shall survive the execution and delivery of this Guaranty:
(a) The Guarantor has the power and authority to execute, deliver and
carry out the terms and provisions of this Guaranty and has duly authorized,
executed, and delivered the same.
(b) Neither the execution and delivery of this Guaranty, nor the
consummation of the transactions herein contemplated, nor compliance with the
terms and provisions hereof, will contravene any provision of law, statute, rule
or regulation to which the Guarantor is subject or any judgment, decree,
franchise, order or permit applicable to the Guarantor, or will conflict or will
be inconsistent with, or will result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, security interest, charge or
encumbrance upon any of the property or assets of the Guarantor pursuant to the
terms
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LOAN NO. 6518303
of, any indenture, Deed of Trust, deed of trust, agreement or other instrument
to which the Guarantor is a party or may be bound or subject.
(c) No consent or approval of, or exemption by, any governmental or public
body or authority is required to authorize, or is required in connection with
the execution, delivery and performance of, this Guaranty or of any of the
instruments or agreements herein referred to, or the taking of any action hereby
contemplated.
9. Guarantor is the sole member of Borrower, has personal knowledge of
and is familiar with Borrower's business affairs, books and records and has the
ability to direct the Borrower's financial decisions. Guarantor warrants that
Borrower will perform its obligations under the Underlying Instruments in
accordance with the terms and conditions thereof.
10. Nothing herein contained shall in any manner affect the lien or
priority of the Deed of Trust securing this Guaranty, and upon the occurrence of
an Event of a Default (as defined by the Deed of Trust), 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. The 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 pursuant to the terms of
the any deed of trust or security agreement and pursue any other remedy which
destroys, lessens or otherwise affects the 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 this Guaranty,
or otherwise. The exercise by the Lender of any such remedies shall not release
or discharge the Guarantor from its obligations hereunder unless and until the
full amount of the Guaranteed Obligations secured as aforesaid have been fully
paid and satisfied.
11. This Guaranty shall remain in full force and effect until all
obligations of the Borrower and Guarantor 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 the Guarantor to the Lender in any other
respect at any other time. This Guaranty and the rights and obligations of the
Lender and of the Guarantor hereunder shall be governed and construed in
accordance with the laws of the State of Maryland and this Guaranty is binding
upon the Guarantor, Guarantor's heirs, personal
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LOAN NO. 6518303
representatives, successors or assigns, and shall inure to the benefits of the
Lender and its successors or assigns including (without limitation) any other
holder at any time of the Underlying Instruments.
12. The Guarantor acknowledges that a copy of the Underlying Instruments
have been made available to the Guarantor and that the Guarantor is familiar
with their contents. Guarantor affirmatively agrees that upon any transfer of
the Trust Property in accordance with the provisions of the Deed of Trust, it
shall not be necessary for Guarantor to reaffirm its continuing obligations
under this Guaranty, but Guarantor will do so upon request by Lender.
13. Any 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
accordance with the notice provisions of the Deed of Trust.
14. Each of the Guarantors (if more than one) whose signatures appear
below shall be deemed to be bound by the provisions of this Guaranty and the
Guaranteed Obligations, whether such signatures were 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 hereunder,
both personally and with recourse, irrespective of the recourse or non-recourse
nature of the Underlying Instruments subject only to the provisions of paragraph
15 below. Guarantor agrees that if this Guaranty is placed in the hands of an
attorney for enforcement, Guarantor will reimburse Lender all reasonable
expenses incurred, including reasonable attorney's fees.
15. The provisions of Paragraph 46 of the Deed of Trust are incorporated
herein by this reference to the fullest extent as if the text of such paragraph
were set forth in its entirety herein.
16. This Guaranty may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
17. The Recitals set forth above are hereby incorporated into this
Guaranty by this reference as if fully set forth herein.
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[Signature Appears on Next Page]
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LOAN NO. 6518303
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered under seal as of the date first written above.
INLAND WESTERN SEVERN, L.L.C.,
a Delaware limited liability company
By: Inland Western Retail Real Estate Trust, Inc.,
a Maryland corporation, its Sole Member
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Asst. Secretary
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