Exhibit XIII
LIMITED RECOURSE GUARANTY [150 N. RIVERSIDE]
THIS LIMITED RECOURSE GUARANTY (this "Guaranty") is made as of the
22nd day of March, 1994 by KILICO Realty Corporation, an Illinois corporation
("Kilico Realty") and Xxxxxx Investors Life Insurance Company, an Illinois
insurance corporation ("Kilico"; Kilico Realty and Kilico are hereinafter
referred to together as "Guarantor" or "Company"), in favor of Lumbermens Mutual
Casualty Company, an Illinois insurance corporation ("Lender").
RECITALS
WHEREAS, Lender made a loan (the "Loan") to 000 X. Xxxxxxxxx
Venture, an Illinois general partnership (the "Borrower") in the amount of
$12,400,000 pursuant to that certain Loan Agreement between Lender and Borrower
dated as of October 17, 1988;
WHEREAS, Kilico Realty holds an option to acquire a Fifty Percent
(50%) partnership interest in the Borrower;
WHEREAS, Lender, Xxxxxx Corporation, a Delaware corporation
("Xxxxxx"), and The Prime Group, Inc., an Illinois corporation ("Prime"),
entered into that certain amended and restated letter agreement dated February
17, 1994 (as amended, the "Letter Agreement ), which Letter Agreement includes,
among other things, certain agreements of the parties thereto regarding the Loan
as set forth specifically therein;
WHEREAS, Guarantor is an affiliate and subsidiary of Xxxxxx;
WHEREAS, in accordance with the terms of the Letter Agreement and in
order to induce Lender to modify certain of the terms and conditions of the
Loan, and in order to further secure the Loan, Guarantor has agreed, among other
things, to execute and deliver this Guaranty with respect to the Loan; and
WHEREAS, this Guaranty is secured by that certain Pledge and
Security Agreement dated as of even date herewith by Guarantor in favor of
Lender (as amended from time to time, the "Security Agreement"). All initially
capitalized terms used in this Guaranty and not otherwise defined herein shall
have the meaning given in the Security Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Guarantor hereby agrees as follows:
1. Guaranty.
(a) Guarantor hereby absolutely and unconditionally, guarantees the
punctual payment when due, whether at stated maturity, by acceleration or
otherwise, without setoff, counterclaim or other reduction whatsoever, of (i)
the aggregate outstanding unpaid principal amount of the Loan, (ii) all accrued
and unpaid interest on the principal amount of the Loan, and
(iii) all other amounts due under the Loan from time to time or under any
documents and instruments executed and delivered or assigned to Lender in order
to evidence the Loan or evidence or perfect a lien or security interest in
collateral for the Loan (the "Collateral Documents"), and any and all
extensions, renewals or modifications of any of the foregoing (such principal,
interest and other amounts are hereinafter referred to collectively as the
"Obligations"). The Obligations and any instrument, document or agreement,
express or implied, which has been or may hereafter be made or entered into by
Guarantor, Borrower or any other person or entity in reference to the
Obligations (including, without limitation, the Collateral Documents and the
Security Agreement) shall all be hereinafter collectively referred to as the
"Terms".
(b) For purposes hereof, the following terms shall have the
following respective meanings:
"Business Day" shall mean any day of the week other than Saturday,
Sunday or any other day on which banks are generally closed within the
City of Chicago, Illinois.
"Pledge Amount" shall have the meaning given in the Security
Agreement.
(c) Notwithstanding anything to the contrary in Section l(a),
Guarantor's maximum liability under this Guaranty shall not exceed an amount
equal to the Pledge Amount.
2. Limited Recourse. Notwithstanding anything to the contrary contained
herein or in the Security Agreement, except as otherwise provided in this
Section 2, neither Guarantor nor any of its shareholders, officers, directors,
partners, employees, agents or other representatives ("Other Persons") shall
have any personal liability for the Obligations under this Guaranty, or for the
obligation to observe, perform or discharge any of the terms, covenants or
conditions contained herein or in the Security Agreement, and, except as
otherwise provided in this Section 2, (a) no attachment, execution, writ or
other process shall be sought and no judicial proceeding shall be initiated by
or on behalf of Lender against Guarantor or any Other Person as a result of a
breach or default under this Guaranty or the Security Agreement, except to the
extent that such attachment, execution, writ or judicial proceeding shall be
necessary to enforce any of the rights, remedies or recourses of Lender against
or with reference to the right to receive Distributions with respect to the
Interests (as defined in the Security Agreement), and (b) in the event that any
suit is brought hereunder or under the Security Agreement, any judgment obtained
in or as a result of such suit shall be enforceable and/or enforced solely
against the right to receive Distributions with respect to the Interests;
provided, however, that nothing herein contained shall be construed to: (i) be a
release or impairment of Guarantor's obligations hereunder, under the Security
Agreement or under the Loan Documents, (ii) prevent Lender from exercising and
enforcing, consistent with the provisions of this Section 2, any other remedy
allowed at law or in equity or by statute or by the terms hereof, or by the
terms of the Security Agreement or of the Loan Documents; or (iii) prevent
Lender from recovering from Guarantor, or limit Lender's recourse against
Guarantor for, any funds, damages or costs (including, without limitation,
reasonable legal expenses) incurred by Lender as a result of any willful act or
omission in bad faith or any fraudulent act or omission.
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3. Guaranty Absolute. Guarantor guarantees that the Obligations will
be paid in accordance with the terms and provisions of this Guaranty and, to the
maximum extent permitted by law, Guarantor waives any law, regulation, order or
judgment now or hereafter in effect in any jurisdiction affecting the
obligations of Guarantor or the rights of Lender with respect thereto. This
Guaranty, and the liability of Guarantor under this Guaranty (which liability is
subject to Sections 1(c) and 2 hereof), shall continue and be absolute and
unconditional and remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any of the Terms;
(b) any change in the time, manner or place of payment of, or in any
other term, including the applicable rate of interest, of, all or any of
the Terms, or any other renewal, extension, amendment, modification or
waiver of or any consent to departure from any of the Terms;
(c) any act or omission of Lender of any nature whatsoever;
(d) with respect to Guarantor, Borrower or any other person or
entity, (i) any failure to obtain required authorization by all necessary
corporate, partnership or other action relating to the incurrence of the
Obligations or to the execution, delivery or performance of any of the
Terms, or (ii) any violation of any provision of any of the articles of
incorporation, by-laws, partnership agreement or any other document,
instrument or agreement occasioned by the incurrence of the Terms, by the
execution, delivery, or performance of any of the Terms, or by any failure
of same to have been duly authorized by all necessary corporate or other
action;
(e) any amendment, waiver, modification, extension or renewal of or
consent to departure from or forbearance of any other action or inaction
under or in respect of this Guaranty or any other of the Terms;
(f) any exchange, release, forbearance or surrender of or any other
action or inaction with respect to any collateral (including, without
limitation, the right to receive Distributions with respect to the
Interests) at any time and from time to time now or hereafter securing any
or all of the Obligations or Terms or the liability of Guarantor, Borrower
or any other person or entity in respect of all or any of the Terms or any
failure to perfect or continue as perfected any security interest or other
lien with respect to any such collateral, or any loss or destruction of
any such collateral, or any matter impairing the value of such collateral
as security for all or any of the Terms, the liability of Guarantor,
Borrower or any other person or entity, in respect of all or any of the
Obligations or Terms;
(g) any other guaranty now or hereafter executed by Guarantor or
anyone else or any recovery under any such other guaranty;
(h) any waiver of or assertion or enforcement or failure or refusal
to assert or enforce, in whole or in part, any of the terms and provisions
of the Terms, or any claim, cause of action, right or remedy which Lender
may, at any
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time, have under this Guaranty, the Security Agreement or any of the other
Collateral Documents or with respect to any guaranty or any security which
may be held by Lender with respect to the Loan;
(i) the failure to give Guarantor any notice whatsoever, other than
any notice which Lender is expressly required to give pursuant to any
provisions of this Guaranty;
(j) exculpatory provisions in any of the Collateral Documents
limiting Lender's recourse to property encumbered by the Loan Documents or
to any other security or limiting Lender's rights to enforce a deficiency
judgment against Borrower;
(k) any sale, assignment, conveyance, merger or other transfer,
voluntary or involuntary (whether by operation of law or otherwise), of
all or any part of Borrower's interest in any property securing the Loan
or the occurrence of any such sale, assignment, conveyance, merger or
other voluntary or involuntary transfer which results in Guarantor
becoming the Borrower under the Collateral Documents, provided, however,
that any such sale, assignment, conveyance, merger or other transfer shall
be subject to the limitations set forth in the Collateral Documents;
(l) any sale, assignment, conveyance, merger or other transfer,
voluntary or involuntary (whether by operation of law or otherwise), of
all or any part of the interest of Lender in the Collateral Documents or
this Guaranty;
(m) any failure to properly record or file any of the Collateral
Documents, or to otherwise perfect, protect, secure or insure any security
interest or lien given as security for the Loan;
(n) any recovery as a result of the exercise by Lender of any of its
rights or remedies under the Collateral Documents, including any
foreclosure thereof; or
(o) any other fact, circumstance or matter of any nature whatsoever
that might otherwise constitute a defense available to, or a discharge of,
or might otherwise operate to release or affect the obligations of,
Guarantor, Borrower or any other person or entity liable to Lender in
respect of any of the Terms.
This Guaranty shall continue to be effective or shall be reinstated, as the case
may be, regardless of whether any payment of any of the Obligations is rescinded
or must otherwise be returned by Lender upon the insolvency, bankruptcy, or
reorganization of Guarantor, Borrower, or any other person or entity or for any
reason whatsoever, all as though such payment had not been made. Lender shall
not be required to contest, dispute or litigate its obligation to make such
payment or repayment. The obligations of Guarantor hereunder shall be absolute
and primary, shall be complete and binding as to Guarantor upon its execution of
this Guaranty, shall be subject to no conditions precedent, and shall be
independent of and cumulative to any other of the Terms, and Lender may exercise
any of its rights and remedies under this Guaranty, any other of the Terms
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or otherwise singly or concurrently. The obligations of Guarantor under this
Guaranty shall not be reduced, limited, impaired, discharged, deferred,
suspended or terminated by any voluntary or involuntary bankruptcy, insolvency,
receivership, reorganization, liquidation, arrangement, or debtor-relief
proceeding of or against Borrower, or by any defense that Borrower may have by
reason of the existence of any such proceeding or any order, decree or decision
of any court or administrative body resulting from or relating to any such
proceeding.
4. Waiver; No Duties. Guarantor waives to the fullest extent
permitted by applicable law: (a) all statutes of limitations as a defense to any
action brought against Guarantor by Lender; (b) any defense based upon any legal
disability or any discharge or limitation of liability (except as provided in
Section 2 above), whether consensual or arising by operation of law or any
bankruptcy, insolvency or debtor-relief proceeding, or from any other cause; (c)
promptness, diligence, presentment, demand, protest and notice of any kind
(other than as expressly required herein); (d) any defense based upon or arising
out of any defense of Borrower to the payment or performance of any part of the
Obligations (other than payment); (e) any and all rights of indemnity,
contribution, reimbursement or any similar right that Guarantor may have against
Borrower as a result of any actions taken or amounts paid in connection with or
relating to this Guaranty or the Loan; (f) all rights of subrogation, including,
without limitation, all rights to enforce any remedy of Lender, and all right to
participate in any security held by Lender; (g) notice of any change in
Borrower's financial condition; (h) the right to interpose any substantive or
procedural defense of the law of guaranty, indemnification or suretyship (except
the defense of prior payment of all of the Obligations which Guarantor is called
upon to pay under this Guaranty); (i) all rights and remedies accorded by
applicable law to guarantors or sureties, including without limitation, any
extension of time conferred by any law now or hereafter in effect; (j) the right
to interpose any defense (except as allowed under clause (h) above), setoff or
counterclaim of any nature or description in any action or proceeding; and (k)
any right or claim of right to cause a marshalling of Borrower's assets or to
cause Lender to proceed against Borrower and/or any collateral held by Lender at
any time or in any particular order. Lender shall not be obligated to exhaust
any right or take any action against the Borrower or any other person or entity
or any collateral for the Obligations prior to the enforcement of its rights
hereunder.
5. Notices. Any notice or other communication required or permitted
hereunder shall be (a) in writing and shall be deemed to have been duly given
(A) when received, if delivered in person, (B) five (5) days after deposit in a
regularly maintained receptacle of the United States mail as first class mail,
postage prepaid, (C) the business day after notice is sent for overnight
delivery by nationally recognized overnight courier service, or (D) on the day
on which the party to whom such notice is addressed refuses delivery by mail or
by private courier service, and (b) addressed as follows:
To Guarantor: c/x Xxxxxx Financial Services, Inc.
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Real Estate Investment Group
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With copies to: Xxxxxx Corporation
Xxxxxx Center, Legal Department C-3
Xxx Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
KFC Portfolio Corp.
c/x Xxxxxx Financial Services, Inc.
000 Xxxxx XxXxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Legal Department
Real Estate Counsel
To Lender: Xxxxxx National Insurance Companies
Xxxxxx Center
Xxx Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
With copy to: Xxxxxx National Insurance Companies
Xxxxxx Center
Xxx Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
or to any such other address as any party hereto shall designate in a written
notice to the other parties hereto.
6. No Waiver; Cumulative Remedies. Lender may, at any time and from
time to time, waive or not insist on strict compliance with any one or more of
the provisions contained in any document relating to this Guaranty, but any such
waiver or non-insistence shall be deemed to be made pursuant to the terms of
said document and not in modification thereof. Any waiver or non-insistence in
any instance or under any particular circumstance shall not be considered a
waiver or non-insistence of such provision in any other instance or any other
circumstance. The remedies provided herein and in the other documents executed
contemporaneously herewith and referred to herein shall be cumulative, may be
exercised from time to time, singularly or concurrently or in any combination,
without Lender being obligated to exercise any such right in any other
circumstance, and, subject to Section 2 above, are not exclusive of any remedies
provided by law.
7. Continuing Guaranty; Transfer. This Guaranty is a continuing
guaranty and shall:
(a) remain in full force and effect until (i) all of the
Obligations have been paid in full, or all of the Collateral (as
such term is defined in the Security Agreement) securing this
Guaranty has been applied toward the Obligations and (ii) any and
all amounts due or claims made under clause (iii) of Section 2 of
this
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Guaranty have been paid, satisfied or otherwise disposed of, as
applicable, at which time this Guaranty shall terminate (and Lender
shall at such time, upon the request and at the expense of
Guarantor, acknowledge the release and termination of this
Guaranty);
(b) be binding upon Guarantor, and its heirs, administrators,
executors, successors and assigns, who shall be jointly and
severally liable hereunder in accordance with the terms hereof;
provided, however, Guarantor may not assign any of its rights and
obligations hereunder without the prior written consent of Lender;
and
(c) inure to the benefit of and be binding on and enforceable
by Lender and its successors, transferees, participants, and
assigns. Without limiting the generality of this clause, Under may
assign or otherwise transfer any of the Obligations and/or any of
the Terms to any other person or entity, and such other person or
entity shall thereupon become vested with all the rights in respect
thereof granted to Lender herein or otherwise.
8. Governing Law; Submission to Jurisdiction. This Guaranty shall be
governed by, and construed in accordance with, the laws of the State of Illinois
without regard to principles of conflict of laws. Each of Lender and Guarantor
hereby waives any plea of jurisdiction or venue as not being a resident of Xxxx
County, Illinois and hereby specifically authorizes any action brought by the
other upon or with regard to this Guaranty to be instituted and prosecuted in
either the Circuit Court of Xxxx County, Illinois or in the United States
District Court for the Northern District of Illinois, at the election of the
party bringing the action. Each of Lender and Guarantor hereby irrevocably
authorizes service of process to be made upon it in the manner specified in
Section 5 above, in any action which may be instituted against it arising out of
or relating to this Guaranty.
9. Headings. Section headings in this Guaranty are included herein
for convenience of reference only and shall not constitute a part of this
Guaranty for any other purpose.
10. WAIVER OF JURY TRIAL. GUARANTOR WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM FILED BY ANY PARTY, RELATING DIRECTLY OR INDIRECTLY TO THIS
GUARANTY, THE SECURITY AGREEMENT OR THE OBLIGATIONS GUARANTEED HEREBY.
11. Severability. The unenforceability or invalidity of any
provision or provisions of this Guaranty shall not render any other provision or
provisions herein contained unenforceable or invalid.
[Signature Page Follows]
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IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be
executed and delivered on the date and year first above written.
KILICO REALTY CORPORATION, an Illinois
corporation
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Its: Vice President
XXXXXX INVESTORS LIFE INSURANCE COMPANY,
an Illinois insurance corporation
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Its: Vice President
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