Exhibit 10.104
GUARANTY AGREEMENT REGARDING CROSS-COLLATERALIZATION
THIS GUARANTY AGREEMENT REGARDING CROSS-COLLATERALIZATION (this
"GUARANTY") is made as of the __ day of _______ , 2004, by INLAND WESTERN
EULESS LIMITED PARTNERSHIP, an Illinois limited partnership, having an
address at 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000 ("GUARANTOR"), in
favor of BEAR XXXXXXX COMMERCIAL MORTGAGE, INC., a New York corporation,
having an address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("LENDER").
RECITALS:
A. Pursuant to that certain Loan Agreement dated as of the date
hereof by and among Guarantor, Inland Western Xxxxxxxx, L.L.C., a Delaware
limited liability company, Inland Western Xxxxxx, L.L.C., a Delaware limited
liability company (collectively, "OTHER BORROWER"), and Lender (as the same may
be amended, restated, replaced, supplemented or otherwise modified from time to
time, the "LOAN AGREEMENT"), Guarantor has agreed to borrow from Lender the sum
of EIGHT MILLION NINE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($8,950,000.00)
(the "LOAN") as evidenced by that certain Promissory Note dated the date hereof
made by Guarantor to Lender (such Note, together with all extensions, renewals,
replacements, restatements or modifications thereof being hereinafter referred
to as the "NOTE"). All capitalized terms not defined herein shall have the same
meaning ascribed to such terms in the Loan agreement.
B. The aggregate principal amount set forth in the Loan Agreement
and evidenced by the Note, the Inland Western Xxxxxxxx Note (as defined in the
Loan Agreement), and the Inland Western Xxxxxx Note (as defined in the Loan
Agreement) is THIRTEEN MILLION SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS
($13,700,000.00) (the "ENTIRE LOAN"). The Inland Western Xxxxxxxx Note and the
Inland Western Xxxxxx Note are hereinafter collectively referred to as the
"OTHER NOTE".
C. The Note is secured by that certain Deed of Trust and Security
Agreement of even date herewith given by Guarantor to a trustee for the benefit
of Lender covering the Property (as defined therein) and intended to be duly
recorded (the "MORTGAGE"). Each Other Note is secured by a mortgage, deed of
trust, deed to secure debt or similar instrument of even date herewith, given by
such Other Borrower to (or for the benefit of) Lender (collectively hereinafter
referred to as the "OTHER MORTGAGE").
D. Lender has agreed to make the Entire Loan, provided Guarantor
agrees to provide the guarantees, promises, indemnification, representations and
warranties and other matters described in this Guaranty for the benefit of
Lender, its successors and assigns.
E. Guarantor will benefit materially from Lender's agreement, and
enters into this Guaranty to induce Lender to so agree.
AGREEMENT
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor
hereby guarantees to Lender the prompt and full payment of the indebtedness
described below in this Guaranty, this Guaranty being upon the following terms
and conditions:
1. GUARANTY OF PAYMENT AND PERFORMANCE.
Guarantor hereby unconditionally and irrevocably guarantees to Lender
the punctual payment of all sums now or hereafter payable pursuant to the Other
Note and the Other Mortgage, The guaranty of Guarantor as set forth in this
Section 1 is a continuing guaranty of payment and not merely a guaranty of
collection. Guarantor additionally unconditionally guarantees to Lender the
timely performance of all other obligations of the Other Borrower under the
Other Note, the Other Mortgage and the other Loan Documents (collectively, the
"GUARANTEED OBLIGATIONS").
2. PRIMARY LIABILITY OF GUARANTOR.
This Guaranty is an absolute, irrevocable and unconditional guaranty of
payment and performance. Guarantor shall be liable for the payment and
performance of the Guaranteed Obligations, as set forth in this Guaranty, as a
primary obligor. This Guaranty shall be effective as a waiver of, and Guarantor
hereby expressly waives, any and all rights to which Guarantor may otherwise
have been entitled under any suretyship laws in effect from time to time;
including any right or privilege, whether existing under statute, at law or in
equity, to require Lender to take prior recourse or proceedings against any
collateral, security or other party whatsoever.
Guarantor hereby agrees that upon the failure of the Other Borrower to
pay or perform the Guaranteed Obligations in accordance with the Other Note, the
Other Mortgage or the other Loan Documents, the Guaranteed Obligations, for
purposes of this Guaranty, shall be deemed immediately due and payable by
Guarantor at the election of Lender, and in addition Guarantor shall, on demand
and without presentment, protest, notice of protest, further notice of
nonpayment or of dishonor or of default or nonperformance, or notice of
acceleration or of intent to accelerate, or any other notice whatsoever, without
any notice having been given to Guarantor previous to such demand of the
acceptance by Lender of this Guaranty, all such notices being hereby waived by
Guarantor, pay to Lender or perform all of the Guaranteed Obligations. It shall
not be necessary for Lender, in order to enforce such payment or performance by
Guarantor, first to institute suit or pursue or exhaust any rights or remedies
against the Other Borrower or others liable for such performance, or to enforce
the rights against any of any security that shall ever have been given to secure
such Loan, or to join the Other Borrower or any others liable for the payment or
performance of the Guaranteed Obligations in any action to enforce this
Guaranty, or to resort to any other means of obtaining payment of the Guaranteed
Obligations.
Suit may be brought or demand may be made against all parties who have
signed this Guaranty or against any one or more of them, separately or together,
without impairing the rights of Lender against any party hereto.
3. CERTAIN AGREEMENTS AND WAIVERS BY GUARANTOR.
Guarantor hereby agrees that neither Lender's rights or remedies nor
Guarantor's obligations under the terms of this Guaranty shall be released,
diminished, impaired, reduced or affected by any one or more of the following
events, actions, facts, or circumstances, and the liability of Guarantor under
this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omitted;
(ii) any claim or defense that this Guaranty was made without
consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or
guaranty for, or right of recourse with respect to, any or all of the Guaranteed
Obligations;
(iv) any homestead exemption or any other exemption under
applicable law;
(v) any release, surrender, abandonment, exchange,
alteration, sale or other disposition, subordination, deterioration, waste,
failure to protect or preserve, impairment, or loss of, or any failure to create
or perfect any lien or security interest with respect to, or any other dealings
with, any collateral or security at any time existing or purported, believed or
expected to exist in connection with any or all of the Guaranteed Obligations,
including any impairment of Guarantor's recourse against any person or
collateral;
(vi) whether express or by operation of law, any partial
release of the liability of Guarantor hereunder, or if one or more other
guaranties are now or hereafter obtained by Lender covering all or any part of
the Guaranteed Obligations, any complete or partial release of any one or more
of such guarantors under any such other guaranty, or any complete or partial
release or settlement of the Other Borrower or any other party liable, directly
or indirectly, for the payment or performance of any or all of the Guaranteed
Obligations;
(vii) the death, insolvency, bankruptcy, disability,
dissolution, liquidation, termination, receivership, reorganization, merger,
consolidation, change of form, structure or ownership, sale of all assets, or
lack of corporate, partnership or other power of the Other Borrower or any other
party at any time liable for the payment or performance of any or all of the
Guaranteed Obligations;
(viii) either with or without notice to or consent of
Guarantor: any renewal, extension, modification or rearrangement of the terms of
any or all of the Guaranteed Obligations and/or any of the Loan Documents,
including, without limitation, material alterations of the terms of payment
(including changes in maturity date(s) and interest rate(s)) or performance or
any other terms thereof, or any waiver, termination, or release of, or consent
to departure from, any of the Loan Documents or any other guaranty of any or all
of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or
compromise that may be granted from time to time by Lender to the Other
Borrower, Guarantor, and/or any other person at any time liable for the payment
or performance of any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission,
failure, or refusal of Lender to enforce of any of the Guaranteed Obligations,
or to foreclose or take or prosecute any
action to foreclose (or in foreclosing or taking or prosecuting any action to
foreclose) exercise (or in exercising) any other right or power with respect to
any security for the Guaranteed Obligations, or to take or prosecute (or in
taking or prosecuting) any action in connection with any Loan Document, or any
failure to sell or otherwise dispose of in a commercially reasonable manner any
collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender to notify Guarantor of any
creation, renewal, extension, rearrangement, modification, supplement,
subordination, or assignment of the Guaranteed Obligations or any part thereof,
or of any Loan Document, or of any release of or change in any security, or of
any other action taken or refrained from being taken by Lender against the Other
Borrower or any security or other recourse, or of any new agreement between
Lender, and the Other Borrower, it being understood that Lender shall not be
required to give Guarantor any notice of any kind under any circumstances with
respect to or in connection with the Guaranteed Obligations, any and all rights
to notice Guarantor may have otherwise had being hereby waived by Guarantor, and
the Guarantor shall be responsible for obtaining for itself information
regarding the Other Borrower and the property secured by the Other Mortgage (the
"OTHER PROPERTY"), including, but not limited to, any changes in the business or
financial condition of the Other Borrower or the Other Property, and the
Guarantor acknowledges and agrees that the Lender shall have no duty to notify
the Guarantor of any information which the Lender may have concerning the Other
Borrower.
(xi) the making of advances by Lender to protect its interest
in the Property generally the Other Mortgage, preserve the value of such
Property or for the purpose of performing any term or covenant contained in any
of the Loan Documents;
(xii) the existence of any claim, counterclaim, set-off,
recoupment, reduction or defense based upon any claim or other right that
Guarantor may at any time have against the Other Borrower, Lender, or any other
party, whether or not arising in connection with this Guaranty, the Note, the
Mortgage, or any other Loan Document;
(xiii) the unenforceability of all or any part of the
Guaranteed Obligations against the Other Borrower, whether because the
Guaranteed Obligations exceed the amount permitted by law or violate any usury
law, or because the act of creating the Guaranteed Obligations, or any part
thereof, is ULTRA XXXXX, or because the officers or members creating same acted
in excess of their authority, or because of a lack of validity or enforceability
of or defect or deficiency in any of the Loan Documents, or because any of the
Other Borrower has any valid defense, claim or offset with respect thereto, or
because the Other Borrower's obligation ceases to exist by operation of law, or
because of any other reason or circumstance, it being agreed that Guarantor
shall remain liable hereon regardless of whether the Other Borrower or any other
Person be found not liable on the Guaranteed Obligations, or any part thereof,
for any reason (and regardless of any joinder of Other Borrower or any other
party in any action to obtain payment or performance of any or all of the
Guaranteed Obligations); or
(xiv) any order, ruling or plan of reorganization emanating
from proceedings under Title 11 of the United States Code with respect to the
Other Borrower or any member or
manager of the Other Borrower, including any extension, reduction, composition,
or other alteration of the Guaranteed Obligations, whether or not consented to
by Lender.
In the event any payment to Lender by the Other Borrower or any other
party under the Other Note, the Other Mortgage or the other Loan Documents is
held to constitute a preference, fraudulent transfer or other voidable payment
under any bankruptcy, insolvency or similar law, or if for any other reason
Lender is required to refund such payment or pay the amount thereof to any other
party, such payment by the Other Borrower or any other party to Lender shall not
constitute a release of Guarantor from any liability hereunder, and this
Guaranty shall continue to be effective or shall be reinstated (notwithstanding
any prior release, surrender or discharge by Lender of this Guaranty or of
Guarantor), as the case may be, with respect to, and this Guaranty shall apply
to, any and all amounts so refunded by Lender or paid by Lender to another party
(which amounts shall constitute part of the Guaranteed Obligations), and any
interest paid by Lender and any attorneys' fees, costs and expenses paid or
incurred by Lender in connection with any such event. It is the intent of
Guarantor and Lender that the obligations and liabilities of Guarantor hereunder
are absolute and unconditional under any and all circumstances and that until
the Guaranteed Obligations are fully and finally paid or defeased, and not
subject to refund or disgorgement, the obligations and liabilities of Guarantor
hereunder shall not be discharged or released, in whole or in part, by any act
or occurrence that might, but for the provisions of this Guaranty, be deemed a
legal or equitable discharge or release of a guarantor.
If the time for payment of any amount payable by the Other Borrower of
the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such
amounts shall nonetheless be payable by Guarantor on demand by Lender.
4. SUBORDINATION. If, for any reason whatsoever, the Other Borrower
is now or hereafter becomes indebted to Guarantor:
such indebtedness and all interest thereon and all liens, security
interests and rights now or hereafter existing with respect to property of the
Other Borrower securing same shall, at all times, be subordinate in all respects
to the Guaranteed Obligations and to all liens, security interests and rights
now or hereafter existing to secure the Guaranteed Obligations;
Guarantor shall not be entitled to enforce or receive payment, directly
or indirectly, of any such indebtedness of the Other Borrower to Guarantor until
the Guaranteed Obligations have been fully and finally paid and performed;
Guarantor hereby assigns and grants to Lender a security interest in all
such indebtedness and security therefor, if any, of the Other Borrower to
Guarantor now existing or hereafter arising, including any dividends and
payments pursuant to debtor relief or insolvency proceedings referred to below.
In the event of receivership, bankruptcy, reorganization, arrangement or other
debtor relief or insolvency proceedings involving the Other Borrower as debtor,
Lender shall have the right to prove its claim in any such proceeding so as to
establish its rights hereunder and shall have the right to receive directly from
the receiver, trustee or other custodian (whether or not an Event of Default
shall have occurred under any of the Loan Documents), dividends and payments
that are payable upon any obligation of the Other
Borrower to Guarantor now existing or hereafter arising, and to have all
benefits of any security therefor, until the Guaranteed Obligations have been
fully and finally paid and performed. If, notwithstanding the foregoing
provisions, Guarantor should receive any payment, claim or distribution that is
prohibited as provided above in this Section 4, Guarantor shall pay the same to
Lender immediately, Guarantor hereby agreeing that it shall receive the payment,
claim or distribution in trust for Lender and shall have absolutely no dominion
over the same except to pay it immediately to Lender; and
Guarantor shall promptly upon request of Lender from time to time
execute such documents and perform such acts as Lender may require to evidence
and perfect its interest and to permit or facilitate exercise of its rights
under this Section 4, including, but not limited to, execution and delivery of
financing statements, proofs of claim, further assignments and security
agreements, and delivery to Lender of any promissory notes or other instruments
evidencing indebtedness of the Other Borrower to Guarantor. All promissory
notes, accounts receivable ledgers or other evidences, now or hereafter held by
Guarantor, of obligations of the Other Borrower to Guarantor shall contain a
specific written notice thereon that the indebtedness evidenced thereby is
subordinated under and is subject to the terms of this Guaranty.
5. OTHER LIABILITY OF GUARANTOR OR OTHER BORROWER. If Guarantor is
or becomes liable, by endorsement or otherwise, for any indebtedness owing by
the Other Borrower to Lender other than under this Guaranty, such liability
shall not be in any manner impaired or affected hereby, and the rights of Lender
hereunder shall be cumulative of any and all other rights that Lender may have
against Guarantor. If the Other Borrower is or becomes indebted to Lender for
any indebtedness other than or in excess of the Indebtedness for which Guarantor
is liable under this Guaranty, any payment received or recovery realized upon
any such indebtedness of the Other Borrower to Lender may, except to the extent
paid by Guarantor on the Indebtedness for which Guarantor is liable under this
Guaranty or specifically required by law or agreement of Lender to be applied to
the Indebtedness for which Guarantor is liable under this Guaranty, in Lender's
sole discretion, be applied upon indebtedness of the Other Borrower to Lender
other than the Indebtedness for which Guarantor is liable under this Guaranty.
This Guaranty is independent of (and shall not be limited by) any other guaranty
now existing or hereafter given. Further, Guarantor's liability under this
Guaranty is in addition to any and all other liability Guarantor may have in any
other capacity, including without limitation, its capacity as an Indemnitor
under the Indemnity Agreement.
6. LENDER ASSIGNS. Each reference herein to Lender shall be deemed
to include its successors and assigns. This Guaranty shall inure to the benefit
of Lender and its respective successors and assigns forever.
7. BINDING EFFECT. This Guaranty is binding not only on Guarantor,
but also on Guarantor's successors and assigns. Upon the death of Guarantor, if
Guarantor is a natural person, this Guaranty shall continue against Guarantor's
estate as to all of the Guaranteed Obligations, including that portion incurred
or arising after the death of Guarantor and shall be provable in full against
Guarantor's estate, whether or not the Guaranteed Obligations are then due and
payable. If this Guaranty is signed now or hereafter by more than one party,
then all of the obligations of Guarantor arising hereunder shall be jointly and
severally binding on each such
party, and their respective heirs, personal representatives, successors and
assigns, and the term "GUARANTOR" shall mean all of such parties and each of
them individually.
8. GOVERNING LAW; FORUM.
This Guaranty shall be deemed to be a contract entered into pursuant to
the laws of the state where the Property is located and shall in all respects be
governed, construed, applied and enforced in accordance with the laws of the
state where the Property is located.
With respect to any claim or action arising hereunder, Guarantor (i)
irrevocably submits to the nonexclusive jurisdiction of the courts of the State
of New York and any United States District Court located in the City of New
York, and appellate courts from any thereof, and (ii) irrevocably waives any
objection which it may have at any time to the laying on venue of any suit,
action or proceeding arising out of or relating to this Guaranty brought in any
such court, and (iii) irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
9. INAPPLICABLE PROVISIONS. If any term, condition or covenant of
this Guaranty shall be held to be invalid, illegal or unenforceable in any
respect, this Guaranty shall be construed without such provision.
10. ATTORNEYS' FEES AND COSTS OF COLLECTION. Guarantor shall pay on
demand all attorneys' fees and all other costs and expenses incurred by Lender
in the enforcement of or preservation of Lender's rights under this Guaranty
including, without limitation, all reasonable attorneys' fees and expenses,
investigation costs, and all court costs, whether or not suit is filed herein,
or whether at maturity or by acceleration, or whether before or after maturity,
or whether in connection with bankruptcy, insolvency or appeal, or whether in
connection with the collection and enforcement of mis Guaranty against any other
Guarantor, if there be more than one. Guarantor agrees to pay interest on any
expenses or other sums due to Lender under this Section 10 that are not paid
when due, at a rate per annum equal to the interest rate provided for in the
Note. Guarantor's obligations and liabilities under this Section 10 shall
survive any payment or discharge in full of the Guaranteed Obligations.
11. PAYMENTS. All sums payable under this Guaranty shall be paid in
lawful money of the United States of America that at the time of payment is
legal tender for the payment of public and private debts.
12. USURY LAWS. This Guaranty is subject to the express condition
that at no time shall Guarantor be obligated or required to pay interest on the
Guaranteed Obligations at a rate which could subject the holder of this Guaranty
to either civil or criminal liability as a result of being in excess of the
maximum interest rate which Guarantor is permitted by applicable law to contract
or agree to pay. If by the terms of this Guaranty, Guarantor is at any time
required or obligated to pay interest on the Guaranteed Obligations at a rate in
excess of such maximum rate, the rate of interest under this Guaranty shall be
deemed to be immediately reduced to such maximum rate and the interest payable
shall be computed at such maximum rate and all prior interest payments in excess
of such maximum rate shall be applied and shall be deemed to have
been payments in reduction of the balance of the Guaranteed Obligations.
13. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF GUARANTOR.
Guarantor hereby represents, warrants, and covenants that (a) Guarantor has a
financial interest in the Other Borrower and will derive a material and
substantial benefit, directly or indirectly, from the making of the Loan to the
Other Borrower; (b) this Guaranty is duly authorized and valid, and is binding
upon and enforceable against Guarantor; (c) Guarantor is not, and the execution,
delivery and performance by Guarantor of this Guaranty will not cause Guarantor
to be, in violation of or in default with respect to any law or in default (or
at risk of acceleration of indebtedness) under any agreement or restriction by
which Guarantor is bound or affected; (d) the Guarantor will indemnify the
Lender from any loss, cost or expense as a result of any representation or
warranty of the Guarantor being false, incorrect, incomplete or misleading in
any material respect; (e) there is no litigation pending or, to the knowledge of
Guarantor, threatened before or by any tribunal against or affecting Guarantor
which, if adversely determined, would materially affect the ability of Guarantor
to perform its obligations hereunder; (f) all financial statements and
information heretofore furnished to Lender by Guarantor do, and all financial
statements and information hereafter furnished to Lender by Guarantor will,
fully and accurately present the condition (financial or otherwise) of Guarantor
as of their dates and the results of Guarantor's operations for the periods
therein specified, and, since the date of the most recent financial statements
of Guarantor heretofore furnished to Lender, no material adverse change has
occurred in the financial condition of Guarantor, nor, except as heretofore
disclosed in writing to Lender, has Guarantor incurred any material liability,
direct or indirect, fixed or contingent; (g) after giving effect to this
Guaranty, Guarantor is solvent, and does not intend to incur or believe that it
will incur debts that will be beyond its ability to pay as such debts mature;
(h) Lender has no duty at any time to investigate or inform Guarantor of the
financial or business condition or affairs of the Other Borrower or any change
therein, and Guarantor will keep fully appraised of the Other Borrower'
financial and business condition; (i) Guarantor acknowledges and agrees that
Guarantor may be required to pay and perform the Guaranteed Obligations in full
without assistance or support from the Other Borrower or any other party; (j)
Intentionally deleted; and (k) Guarantor has read and fully understands the
provisions contained in the Loan Documents. Guarantor's representations,
warranties and covenants are a material inducement to Lender to make the Loan
and enter into the Loan Documents, and shall survive the execution hereof and
any bankruptcy, foreclosure, transfer of security or other event affecting the
Other Borrower, Guarantor, any other party, or any security for all or any part
of the Guaranteed Obligations.
14. NOTICES. All notices or other written communications hereunder
shall be deemed to have been properly given (i) upon delivery, if delivered in
person with receipt acknowledged by the recipient thereof, (ii) one (1) Business
Day (hereinafter defined) after having been deposited for overnight delivery
with any reputable overnight courier service, or (iii) three (3) Business Days
after having been deposited in any post office or mail depository regularly
maintained by the U.S. Postal Service and sent by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to Guarantor: 0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to Lender: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx Xxxxxxx
or addressed as such party may from time to time designate by written notice to
the other parties. For purposes of this Guaranty, the term "BUSINESS DAY" shall
mean any day other than Saturday, Sunday or any other day on which banks are
required or authorized to close in New York, New York.
Any party by notice to the others may designate additional or different
addresses for subsequent notices or communications.
15. CUMULATIVE RIGHTS. The exercise by Lender of any right or remedy
hereunder or under any other Loan Document, or at law or in equity, shall not
preclude the concurrent or subsequent exercise of any other right or remedy.
Lender shall have all rights, remedies and recourses afforded to Lender by
reason of this Guaranty or any other Loan Document or by law or equity or
otherwise, and the same (a) shall be cumulative and concurrent, (b) may be
pursued separately, successively or concurrently against Guarantor or others
obligated for the Guaranteed Obligations, or any part thereof, or against any
one or more of them, or against any security or otherwise, at the sole
discretion of Lender, (c) may be exercised as often as occasion therefor shall
arise, it being agreed by Guarantor that the exercise of, discontinuance of the
exercise of or failure to exercise any of such rights, remedies, or recourses
shall in no event be construed as a waiver or release thereof or of any other
right, remedy, or recourse, and (d) are intended to be, and shall be,
nonexclusive. No waiver of any default on the part of Guarantor or of any breach
of any of the provisions of this Guaranty or of any other document shall be
considered a waiver of any other or subsequent default or breach, and no delay
or omission in exercising or enforcing the rights and powers granted herein or
in any other document shall be construed as a waiver of such rights and powers,
and no exercise or enforcement of any rights or powers hereunder or under any
other document shall be held to exhaust such rights and powers, and every such
right and power may be exercised from time to time. The granting of any consent,
approval or waiver by Lender shall be limited to the specific instance and
purpose therefor and shall not constitute consent or approval in any other
instance or for any other purpose. No notice to or demand on Guarantor in any
case shall of itself entitle Guarantor to any other or further notice or demand
in similar or other circumstances. No provision of this Guaranty or any right,
remedy or recourse of Lender with respect hereto, or any default or breach, can
be waived, nor can this Guaranty or Guarantor be released or discharged in any
way or to any extent, except specifically in each case by a writing intended for
that purpose (and which refers specifically to this Guaranty) executed, and
delivered to Guarantor, by Lender.
16. EXCULPATION. Guarantor's obligations hereunder shall be subject
to the provisions of Section 9.4 of the Loan Agreement, which provisions are
expressly incorporated herein.
17. TERM OF GUARANTY. This Guaranty shall continue in effect until
(i) all of the obligations to Lender under the Other Note are fully and finally
paid or defeased (even if
ownership of the Other Property changes or ownership and/or structure of the
Other Borrower changes), and discharged, or (ii) repayment in full of the Note
and release of Guarantor's Property from the lien of its Mortgage.
18. TRANSFER OF LOAN.
Lender may, at any time, sell, transfer or assign the Note, the
Mortgage, this Guaranty and the other Loan Documents, and any or all servicing
rights with respect thereto, or grant participations therein or issue mortgage
pass-through certificates or other securities evidencing a beneficial interest
in a rated or unrated public offering or private placement (the "SECURITIES").
Lender may forward to each purchaser, transferee, assignee, servicer,
participant or investor in such Securities or any credit rating agency rating
such Securities (the foregoing entities hereinafter collectively referred to as
the "INVESTOR") and each prospective Investor, all documents and information
(including, but not limited to, financial information) which Lender now has or
may hereafter acquire relating to Guarantor and the Property, whether furnished
by any Guarantor or otherwise, as Lender determines necessary or desirable,
subject to any confidentiality agreement executed by Lender prior to the receipt
of such information.
Upon any transfer or proposed transfer contemplated above and by the
Loan Agreement, at Lender's request, Guarantor shall provide an estoppel
certificate to the Investor or any prospective Investor in such form, substance
and detail as Lender, such Investor or prospective Investor may reasonably
require.
19. RIGHT OF SET-OFF. Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, without
notice (any such notice being expressly waived by Guarantor to the fullest
extent permitted by applicable law), to set off and apply any and all deposits,
funds, or assets at any time held and other indebtedness at any time owing by
Lender to or for the credit or the account of Guarantor against any and all of
the obligations of Guarantor now or hereafter existing under this Guaranty,
whether or not Lender shall have made any demand under this Guaranty or
exercised any other right or remedy hereunder. Lender will promptly notify
Guarantor after any such set-off and application made by Lender, provided that
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of Lender under this Section 19 are in addition to
the other rights and remedies (including other rights of set-off) that Lender
may have and every right of setoff and lien shall continue in full force and
effect until such right of setoff or lien is specifically waived or released by
an instrument in writing executed by Lender.
20. SUBROGATION. Notwithstanding anything to the contrary contained
herein, (a) Guarantor shall not have any right of subrogation in or under any of
the Loan Documents or to participate in any way therein, or in any right, title
or interest in and to any security or right of recourse for the Indebtedness,
until the Indebtedness has been fully and finally paid, and (b) if the Guarantor
is or becomes an "insider" (as defined in Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code) with respect to the Other Borrower, then Guarantor hereby
irrevocably and absolutely waives any and all rights of contribution,
indemnification, reimbursement or any similar rights against the Other Borrower
with respect to this Guaranty (including any right of subrogation, except to the
extent of collateral held by Lender), whether such rights arise under an
express or implied contract or by operation of law. It is the intention of the
parties that the Guarantor shall not be deemed to be a "creditor" (as defined in
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code) of the Other Borrower by
reason of the existence of this Guaranty in the event that the Other Borrower or
the Guarantor becomes a debtor in any proceeding under the United States
Bankruptcy code. This waiver is given to induce Lender to make the Loan as
evidenced by the Other Note to the Other Borrower.
21. FURTHER ASSURANCES. Guarantor at Guarantor's expense will
promptly execute and deliver to Lender upon Lender's request all such other and
further documents, agreements, and instruments in compliance with or
accomplishment of the agreements of Guarantor under this Guaranty.
22. NO FIDUCIARY RELATIONSHIP. The relationship between Lender and
Guarantor is solely that of lender and guarantor. Lender has no fiduciary or
other special relationship with or duty to Guarantor and none is created hereby
or may be inferred from any course of dealing or act or omission of Lender.
23. INTERPRETATION. If this Guaranty is signed by more than one
party as "Guarantor", then the term "Guarantor" as used in this Guaranty shall
refer to all such parties jointly and severally, and all promises, agreements,
covenants, waivers, consents, representations, warranties and other provisions
in this Guaranty are made by and shall be binding upon each and every such
undersigned party, jointly and severally and the Lender may pursue any Guarantor
hereunder without being required (i) to pursue any other Guarantor hereunder or
(ii) pursue rights and remedies under the Mortgage and/or applicable law with
respect to the Property or any other Loan Documents. The term "Lender" shall be
deemed to include any subsequent holder(s) of the Note. Whenever the context of
any provisions hereof shall require it, words in the singular shall include the
plural, words in the plural shall include the singular, and pronouns of any
gender shall include the other genders. Captions and headings in the Loan
Documents are for convenience only and shall not affect the construction of the
Loan Documents. All references in this Guaranty to Schedules, Articles,
Sections, Subsections, paragraphs and subparagraphs refer to the respective
subdivisions of this Guaranty, unless such reference specifically identifies
another document. The terms "herein", "hereof", "hereto", "hereunder" and
similar terms refer to this Guaranty and not to any particular Section or
subsection of this Guaranty. The terms "include" and "including" shall be
interpreted as if followed by the words "without limitation". All references in
this Guaranty to sums denominated in dollars or with the symbol "$" refer to the
lawful currency of the United States of America, unless such reference
specifically identifies another currency.
24. TIME OF ESSENCE. Time shall be of the essence in this Guaranty
with respect to all of Guarantor's obligations hereunder.
25. EXECUTION. This Guaranty may be executed in multiple
counterparts, each of which, for all purposes, shall be deemed an original, and
all of which together shall constitute one and the same agreement.
26. ENTIRE AGREEMENT. This Guaranty embodies the entire agreement
between Lender
and Guarantor with respect to the guaranty by Guarantor of the Guaranteed
Obligations. This Guaranty supersedes all prior agreements and understandings,
if any, with respect to guaranty by Guarantor of the Guaranteed Obligations. No
condition or conditions precedent to the effectiveness of this Guaranty exist.
This Guaranty shall be effective upon execution by Guarantor and delivery to
Lender. This Guaranty may not be modified, amended or superseded except in a
writing signed by Lender and Guarantor referencing this Guaranty by its date and
specifically identifying the portions hereof that are to be modified, amended or
superseded.
27. WAIVER OF JURY TRIAL. GUARANTOR AND LENDER EACH HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH GUARANTOR AND LENDER MAY BE
PARTIES ARISING OUT OF, IN CONNECTION WITH, OR IN ANY WAY PERTAINING TO, THIS
GUARANTY, THE NOTE, THE SECURITY INSTRUMENT AND ANY OTHER LOAN DOCUMENT. IT IS
AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF
ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS
AGAINST PARTIES WHO ARE NOT PARTIES TO THIS GUARANTY. THIS WAIVER IS KNOWINGLY,
WILLINGLY AND VOLUNTARILY MADE BY GUARANTOR AND LENDER, AND GUARANTOR AND LENDER
EACH HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE
BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY
OR NULLIFY US EFFECT. GUARANTOR FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN
REPRESENTED IN THE SIGNING OF THIS GUARANTY AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY
INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE
OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
28. DEFICIENCY PROVISIONS.
(a) Anything herein or in any of the other Loan Documents to the
contrary notwithstanding, neither Guarantor's execution and delivery of this
Agreement, nor any provision in this Agreement, the Loan Agreement or the other
Loan Documents, shall be deemed or construed as a waiver by Guarantor of the
rights and protections afforded under Sections 51.003, 51.004 and 51.005 of the
Texas Property Code, as such provisions may from time to time be amended or
recodified, in the event the Debt becomes full recourse to Guarantor.
(b) In the event there is a foreclosure sale of the Property in
proceedings governed by sections 51.003, 51.004, and 51.005 of the Texas
Property Code, as such provisions may from time to time be amended or
recodified, the following shall be the basis for the finder of fact's
determination of the fair market value of the Property:
(i) The Property shall be valued in an "as is" condition as
of the date of the foreclosure sale, without any assumption or
expectation that the Property will be repaired or improved in
any manner before a resale of the Property after foreclosure;
(ii) The valuation shall be based upon an assumption that the
foreclosure purchaser desires a prompt resale of the Property
for cash promptly (but no later than twelve months) following
the foreclosure sale;
(iii) All reasonable closing costs customarily borne by the
seller in a commercial real estate transaction should be
deducted form the gross fair market value of the Property,
including, without limitation, brokerage commissions, title
insurance, a survey of the Property, tax prorations, attorneys'
fees, and marketing costs;
(iv) The gross fair market value of the Property shall be
further discounted to account for any estimated holding costs
associated with maintaining the Property pending sale,
including, without limitation, utility expenses, property
management fees, taxes, and assessments (to the extent not
accounted for in Subsection (iii) immediately above), and other
maintenance expenses; and
(v) Any expert opinion testimony given or considered in
connection with a determination of the fair market value of the
Property must be given by persons having at least five (5) years
experience in appraising property similar to the Property and
who have conducted and prepared a complete written appraisal of
the Property taking into consideration the factors set forth
above.
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THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
IN WITNESS WHEREOF, Guarantor duly executed this Guaranty under seal as
of the date first written above.
INLAND WESTERN EULESS LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Inland Western Euless GP, L.L.C., a Delaware
limited liability company, its sole general
partner
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its sole
member
By: /s/ Xxxxx X. Xxxxxx
----------------------
Name: Xxxxx X. Xxxxxx
Title: Asst. Secretary
