CONTINUING UNCONDITIONAL GUARANTY
Exhibit 4.3
This CONTINUING UNCONDITIONAL GUARANTY dated as of July 14, 2008 (the “Guaranty”), is
executed by AGREE REALTY CORPORATION, a Maryland corporation, whose address is 00000 Xxxxxxxxxxxx
Xxxxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000 (the “Guarantor”), to and for the benefit of
LASALLE BANK MIDWEST NATIONAL ASSOCIATION, a national banking association, whose address is 0000
Xxxx Xxx Xxxxxx Xxxx, Xxxx, Xxxxxxxx 00000 (in its individual capacity, “LaSalle”), as
Agent for itself and the other Banks party to a Loan Agreement of even date herewith (in such
capacity, “Agent”), among AGREE LIMITED PARTNERSHIP, a Delaware limited partnership (the
“Borrower”), LaSalle, as Agent, and LaSalle and XXXXXXX XXXXX BANK, FSB, as Banks (as
defined in the Loan Agreement) (the “Banks”), as amended, supplemented, restated or
otherwise modified from time to time (the “Loan Agreement”).
R E C I T A L S:
A. The Banks have severally agreed to extend mortgage loans (collectively, the “Loan”)
to the Borrower in the aggregate principal amount of Twenty Four Million Eight Hundred Thousand and
00/100 Dollars ($24,800,000.00) (the “Loan Amount”), evidenced by promissory notes from the
Borrower to the Banks, dated of even date with the Loan Agreement, in an aggregate principal amount
equal to the Loan Amount (as amended, restated or replaced from time to time, the “Notes”).
B. As a condition to the Banks’ loaning funds or providing other financial accommodations to
the Borrower, the Banks require that the Guarantor execute and deliver this Guaranty in order to
support the obligations and performance of the Borrower under such loans or financial
accommodations.
C. The Guarantor is financially interested in the Borrower and desires the Banks to extend or
continue the extension of credit to the Borrower, which is necessary and desirable to the conduct
and operation of the business of the Borrower and will inure to the financial benefit of the
Guarantor.
NOW, THEREFORE, FOR VALUE RECEIVED, it is agreed that the preceding provisions and recitals
are an integral part hereof and that this Guaranty shall be construed in light thereof, and in
consideration of advances, credit or other financial accommodation heretofore afforded,
concurrently herewith being afforded or hereafter to be afforded to the Borrower by the Banks, the
Guarantor hereby unconditionally and absolutely guarantees to the Banks or other person paying or
incurring the same, irrespective of the validity, regularity or enforceability of any instrument,
writing, arrangement or credit agreement relating to or the subject of any such financial
accommodation, the prompt payment in full of: (a) the Indebtedness (as hereinafter defined),
plus (b) all Rate Management Obligations under any Rate Management Agreements (as defined
in the Loan Agreement, plus (c) all costs, legal expenses and attorneys’ and paralegals’
fees of every kind (including those costs, expenses and fees of attorneys and paralegals who may be
employees of the Agent, its parent or affiliates), paid or incurred by the Agent in endeavoring to
collect all or any part of the Indebtedness, or in enforcing its rights in connection with any
collateral therefor, or in enforcing this Guaranty, or in defending against any defense,
counterclaim, setoff or crossclaim based on any act of commission or omission by the Banks with
respect to the Indebtedness, any collateral therefor, or in connection with any Repayment Claim (as
hereinafter defined) (collectively, the “Guaranteed Debt”). In addition, the Guarantor hereby
unconditionally and absolutely guarantees to the Banks the prompt, full and faithful performance
and discharge by the Borrower of each of the terms, conditions, agreements, representations and
warranties on the part of the
Borrower contained in any agreement, or in any modification or addenda thereto or substitution
thereof in connection with any of the Indebtedness.
1
As used herein, “Indebtedness” shall mean and include any and all indebtedness, obligations
and liabilities of the Borrower to the Banks or to any Bank Affiliates (as defined in the Loan
Agreement) arising: (a) under and pursuant to the Loan Agreement, the Notes or the other Loan
Documents (as defined in the Loan Agreement), including any and all new or renewal notes issued in
substitution or replacement therefor or any and all extensions, renewals or replacements thereof,
and (b) under any Rate Management Agreements, or any other interest rate, currency or commodity
swap agreement(s), cap agreement(s) or collar agreement(s), and any other agreement(s) or
arrangement(s) designed to protect the Borrower against fluctuations in interest rates, currency
exchange rates or commodity prices entered into in connection with the loan evidenced by the Notes.
Upon an event of default under the Indebtedness, or any default by the Guarantor of any of the
covenants, terms and conditions set forth herein which is not cured within thirty days after notice
from the Agent to the Guarantor, all of the Guaranteed Debt shall, without notice to anyone,
immediately become due and all amounts due hereunder shall be payable by the Guarantor. The
Guarantor hereby expressly and irrevocably: (a) waives, to the fullest extent possible, on behalf
of itself and its successors and assigns (including any surety) and any other person, any and all
rights at law or in equity to subrogation, reimbursement, exoneration, contribution,
indemnification, set off or to any other rights that could accrue to a guarantor or to the holder
of a claim against any person, and which the Guarantor may have or hereafter acquire against any
person in connection with or as a result of the Guarantor’s execution, delivery and/or performance
of this Guaranty, or any other documents to which the Guarantor is a party or otherwise; (b) waives
any “claim” (as such term is defined in the United States Bankruptcy Code) of any kind against the
Borrower, and further agrees that it shall not have or assert any such rights against any person
(including any surety), either directly or as an attempted set off to any action commenced against
the Guarantor by the Agent or any other person; and (c) acknowledges and agrees (i) the foregoing
waivers are intended to benefit the Banks and shall not limit or otherwise affect the Guarantor’s
liability hereunder or the enforceability of this Guaranty, (ii) the Borrower and its successors
and assigns are intended third party beneficiaries of the foregoing waivers, and (iii) the
agreements set forth in this paragraph and the Banks’ rights under this paragraph shall survive
payment in full of the Guaranteed Debt.
All dividends or other payments received by the Banks on account of the Indebtedness, from
whatever source derived, shall be taken and applied by the Agent toward the payment of the
Indebtedness and in such order of application as the Agent may, in its sole discretion, from time
to time elect. The Agent shall have the exclusive right to determine how, when and what application
of payments and credits, if any, whether derived from the Borrower or any other source, shall be
made on the Indebtedness and such determination shall be conclusive upon the Guarantor.
This Guaranty shall in all respects be continuing, absolute and unconditional, and shall
remain in full force and effect with respect to the Guarantor until: (i) written notice from the
Agent to the Guarantor by United States certified mail of its discontinuance as to the Guarantor;
or (ii) until all Guaranteed Debt created or existing before receipt of either such notice shall
have been fully paid. If there is more than one Guarantor party hereto and this Guaranty is
discontinued as to any Guarantor, this Guaranty shall nevertheless continue and remain in force
against any other guarantor until discontinued as to all other Guarantors. In the event of the
death, incompetency or dissolution of the Guarantor, this Guaranty shall continue as to all of the
Guaranteed Debt theretofore incurred by the Borrower even though the Indebtedness is renewed or the
time of maturity of the Indebtedness is extended without the consent of the successors or assigns
of the Guarantor.
No compromise, settlement, release or discharge of, or indulgence with respect to, or failure,
neglect or omission to enforce or exercise any right against any other guarantor shall release or
discharge the Guarantor.
2
The Guarantor’s liability under this Guaranty shall in no way be modified, affected, impaired,
reduced, released or discharged by any of the following (any or all of which may be done or omitted
by the Agent in its sole discretion, without notice to anyone and irrespective of whether the
Indebtedness shall be increased or decreased thereby): (a) any acceptance by the Banks of any new
or renewal note or notes of the Borrower, or of any security or collateral for, or other guarantors
or obligors upon, any of the Indebtedness; (b) any compromise, settlement, surrender, release,
discharge, renewal, refinancing, extension, alteration, exchange, sale, pledge or election with
respect to the Indebtedness, or any note by the Borrower, or with respect to any collateral under
Section 1111 or any action under Section 364, or any other section of the United States Bankruptcy
Code, now existing or hereafter amended, or other disposition of, or substitution for, or
indulgence with respect to, or failure, neglect or omission to realize upon, or to enforce or
exercise any liens or rights of appropriation or other rights with respect to, the Indebtedness or
any security or collateral therefor or any claims against any person or persons primarily or
secondarily liable thereon; (c) any failure, neglect or omission to perfect, protect, secure or
insure any of security interests, liens, or encumbrances of the properties or interests in
properties subject thereto; (d) the granting of credit from time to time by the Banks to the
Borrower in excess of the amount, if any, to which the right of recovery under this Guaranty is
limited (which is hereby expressly authorized); (e) any change in the Borrower’s name or the merger
of the Borrower into another entity; or (f) any act of commission or omission of any kind or at any
time upon the part of the Banks with respect to any matter whatsoever, other than the execution and
delivery by the Agent to the Guarantor of an express written release or cancellation of this
Guaranty. The Guarantor hereby consents to all acts of commission or omission of the Banks set
forth above and agrees that the standards of good faith, diligence, reasonableness and care shall
be measured, determined and governed solely by the terms and provisions hereof.
In order to hold the Guarantor liable hereunder, there shall be no obligation on the part of
the Agent, at any time, to resort for payment to the Borrower or to anyone else, or to any
collateral, security, property, liens or other rights and remedies whatsoever, all of which are
hereby expressly waived by the Guarantor.
The Guarantor hereby expressly waives diligence in collection or protection, presentment,
demand or protest or in giving notice to anyone of the protest, dishonor, default, or nonpayment or
of the creation or existence of any of the Indebtedness or of any security or collateral therefor
or of the acceptance of this Guaranty or of extension of credit or indulgences hereunder or of any
other matters or things whatsoever relating hereto.
The Guarantor waives any and all defenses, claims and discharges of the Borrower, or any other
obligor, pertaining to the Indebtedness, except the defense of discharge by payment in full.
Without limiting the generality of the foregoing, the Guarantor will not assert, plead or enforce
against the Banks any defense of waiver, release, discharge in bankruptcy, statute of limitations,
res judicata, statute of frauds, anti-deficiency statute, fraud, incapacity, minority, usury,
illegality or unenforceability which may be available to the Borrower or any other person liable in
respect of any of the Indebtedness, or any setoff available against the Banks to the Borrower or
any such other person, whether or not on account of a related transaction. The Guarantor expressly
agrees that the Guarantor shall be and remain liable for any deficiency remaining after foreclosure
of any mortgage or security interest securing the Guaranteed Debt, whether or not the liability of
the Borrower or any other obligor for such deficiency is discharged pursuant to statute or judicial
decision.
The Guarantor represents and warrants to the Banks that the financial statements of the
Guarantor furnished to the Banks at or prior to the execution and delivery of this Guaranty fairly
present the financial condition of the Guarantor for the periods shown therein, and since the dates
covered by the most recent of such financial statements, there has been no material adverse change
in the Guarantor’s
3
business operations or financial condition. The Guarantor agrees to advise the
Agent immediately of any adverse change in the financial condition, business operations or any
other status of the Guarantor. The Agent shall have the right at all times during business hours to
inspect the books and records of the Guarantor and make extracts therefrom. Except as expressly
shown on the most recent of such financial statements, the Guarantor owns all of its assets free
and clear of all liens; is not a party to any litigation, nor is any litigation threatened to the
knowledge of the Guarantor which would, if adversely determined, cause any material adverse change
in its business or financial condition; and has no delinquent tax liabilities, nor have any tax
deficiencies been proposed against it. The Guarantor shall not sell, lease, transfer, convey or
assign any of its assets, unless such sale, lease, transfer, conveyance or assignment is performed
in the ordinary course of its business consistent with past practices, and will not have a material
adverse effect on the business or financial condition of the Guarantor or its ability to perform
its obligations hereunder. The Guarantor shall neither become a party to any merger or
consolidation, nor, except in the ordinary course of its business consistent with past practices,
acquire all or substantially all of the assets of, a controlling interest in the stock of, or a
partnership or joint venture interest in, any other entity.
The Banks may, without demand or notice of any kind to anyone, after the occurrence of an
Event of Default, as defined in the Loan Agreement, apply or set off any balances, credits,
deposits, accounts, moneys or other indebtedness at any time credited by or due from the Banks to
the Guarantor against the amounts due hereunder and in such order of application as the Banks may
from time to time elect.
THE GUARANTOR WAIVES EVERY DEFENSE, CAUSE OF ACTION, COUNTERCLAIM OR SETOFF WHICH THE
GUARANTOR MAY NOW HAVE OR HEREAFTER MAY HAVE TO ANY ACTION BY THE AGENT IN ENFORCING THIS GUARANTY.
AS FURTHER SECURITY, ANY AND ALL DEBTS AND LIABILITIES NOW OR HEREAFTER ARISING AND OWING TO THE
GUARANTOR BY THE BORROWER, OR TO ANY OTHER PARTY LIABLE TO THE BANKS FOR THE BORROWER’S
OBLIGATIONS, ARE HEREBY SUBORDINATED TO THE BANKS’ CLAIMS AND ARE HEREBY ASSIGNED TO THE BANKS.
THE GUARANTOR HEREBY AGREES THAT THE GUARANTOR MAY BE JOINED AS A PARTY DEFENDANT IN ANY LEGAL
PROCEEDING (INCLUDING, BUT NOT LIMITED TO, A FORECLOSURE PROCEEDING) INSTITUTED BY THE AGENT
AGAINST THE BORROWER. THE GUARANTOR, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT
WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES IRREVOCABLY THE RIGHT TO TRIAL BY
JURY WITH RESPECT TO ANY LEGAL PROCEEDING COMMENCED BY OR AGAINST THE GUARANTOR IN WHICH THE
GUARANTOR AND THE AGENT ARE ADVERSE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANKS
GRANTING ANY FINANCIAL ACCOMMODATION TO THE BORROWER AND ACCEPTING THIS GUARANTY.
Should a claim (a “Repayment Claim”) be made upon the Banks at any time for repayment of any
amount received by the Banks in payment of the Indebtedness, or any part thereof, whether received
from the Borrower, the Guarantor pursuant hereto, or received by the Banks as the proceeds of
collateral, by reason of: (i) any judgment, decree or order of any court or administrative body
having jurisdiction over the Banks or any of their property; or (ii) any settlement or compromise
of any such Repayment Claim effected by the Banks, in their sole discretion, with the claimant
(including the Borrower), the Guarantor shall remain liable to the Banks for the amount so repaid
to the same extent as if such amount had never
originally been received by the Banks, notwithstanding any termination hereof or the
cancellation of any note or other instrument evidencing the Indebtedness.
The Banks may, without notice to anyone, sell or assign the Indebtedness, or any part thereof,
or grant participations therein, and in any such event, the Agent, as agent for each and every
immediate or
4
remote assignee or holder of, or participant in, all or any of the Indebtedness shall
have the right to enforce this Guaranty, by suit or otherwise for the benefit of such assignee,
holder, or participant, as fully as if herein by name specifically given such right herein.
Unless and until all of the Indebtedness have been paid in full, no release or discharge of
any other person, whether primarily or secondarily liable for and obligated with respect to the
Indebtedness, or the institution of bankruptcy, receivership, insolvency, reorganization,
dissolution or liquidation proceedings by or against the Guarantor or any other person primarily or
secondarily liable for and obligated with respect to the Indebtedness, or the entry of any
restraining or other order in any such proceedings, shall release or discharge the Guarantor, or
any other guarantor of the Indebtedness, or any other person, firm or corporation liable to the
Banks for the Indebtedness.
This Guaranty has been delivered to the Agent at its offices in Michigan, and the rights,
remedies and liabilities of the parties shall be construed and determined in accordance with the
laws of the State of Michigan, in which State it shall be performed by the Guarantor.
TO INDUCE THE BANKS TO GRANT FINANCIAL ACCOMMODATIONS TO THE BORROWER, THE GUARANTOR
IRREVOCABLY AGREES THAT ALL ACTIONS ARISING DIRECTLY OR INDIRECTLY AS A RESULT OR IN CONSEQUENCE OF
THIS GUARANTY SHALL BE INSTITUTED AND LITIGATED ONLY IN COURTS HAVING SITUS IN THE COUNTY OF
OAKLAND, MICHIGAN. THE GUARANTOR HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, AND VENUE OF ANY STATE OR FEDERAL COURT LOCATED AND HAVING ITS SITUS
IN THE COUNTY OF OAKLAND, MICHIGAN, AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS. THE
GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS, AND CONSENTS TO THE SERVICE OF
PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE GUARANTOR AT THE ADDRESS
INDICATED IN THE AGENT’S RECORDS IN THE MANNER PROVIDED BY APPLICABLE STATUTE, LAW, RULE OF COURT
OR OTHERWISE. FURTHERMORE, THE GUARANTOR WAIVES ALL NOTICES AND DEMANDS IN CONNECTION WITH THE
ENFORCEMENT OF THE BANKS’ RIGHTS HEREUNDER, AND HEREBY CONSENTS TO, AND WAIVES NOTICE OF THE
RELEASE, WITH OR WITHOUT CONSIDERATION, OF THE BORROWER OR ANY OTHER PERSON RESPONSIBLE FOR PAYMENT
OF THE BORROWER’S OBLIGATIONS, OR OF ANY COLLATERAL THEREFOR.
Wherever possible each provision of this Guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited
by or invalid under such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the remaining provisions of
this Guaranty.
It is agreed that the Guarantor’s liability is independent of any other guaranties at any time
in effect with respect to all or any part of the Indebtedness, and that the Guarantor’s liability
hereunder may be enforced regardless of the existence of any such other guaranties.
No delay on the part of the Agent in the exercise of any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by the Agent of any right or remedy shall
preclude other or further exercise thereof, or the exercise of any other right or remedy. No
modification, termination, discharge or waiver of any of the provisions hereof shall be binding
upon the Banks, except as expressly set forth in a writing duly signed and delivered on behalf of
the Agent.
5
The execution, delivery and performance of this Guaranty by the Guarantor have been duly
authorized by all necessary action on the part of the Guarantor and do not and will not (i) require
any consent or approval which has not been obtained, (ii) violate any provision of organizational
documents of the Guarantor or of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to the Guarantor; (iii)
require the consent or approval of, or filing or registration with, any governmental body, agency
or authority, or (iv) result in a breach of or constitute a default under, or result in the
imposition of any lien, charge or encumbrance upon any property of the Guarantor pursuant to, any
indenture or other agreement or instrument under which the Guarantor is a party or by which it or
any of its properties may be bound or affected. The person(s) executing and delivering this
Guarantor for and on behalf of the Guarantor, are duly authorized to so act.
This Guaranty: (i) is valid, binding and enforceable in accordance with its provisions, and
no conditions exist to the legal effectiveness of this Guaranty as to the Guarantor; (ii) contains
the entire agreement between the Guarantor and the Banks; (iii) is the final expression of their
intentions; and (iv) supersedes all negotiations, representations, warranties, commitments, offers,
contracts (of any kind or nature, whether oral or written) prior to or contemporaneous with the
execution hereof. No prior or contemporaneous representations, warranties, understandings, offers
or agreements of any kind or nature, whether oral or written, have been made by the Banks or relied
upon by the Guarantor in connection with the execution hereof.
The term “Guarantor” as used herein shall mean all parties signing this Guaranty, and the
provisions hereof shall be binding upon the Guarantor, and each one of them, and all such parties,
their respective successors and assigns shall be jointly and severally obligated hereunder. This
Guaranty shall inure to the benefit of the Banks and their successors and assigns.
[SIGNATURE PAGE FOLLOWS]
6
IN WITNESS WHEREOF, the Mortgagor has executed and delivered this Continuing Unconditional
Guaranty as of the day and year first above written.
| GUARANTOR: | ||||
| AGREE REALTY CORPORATION, a Maryland corporation | ||||
| By: | /s/ Xxxxxxx Agree | |||
| Name: | Xxxxxxx Agree | |||
| Title: | President | |||
7
