Exhibit 99.2
LOAN NO.: 59487
SERVICING NO.: 003212370
GUARANTY OF RECOURSE OBLIGATIONS OF BORROWER
FOR VALUE RECEIVED, and to induce BANK OF AMERICA, N.A., a national
banking association, having an address at 214 North Tryon Street, Charlotte,
North Carolina 28255 ("LENDER"), to lend to MHC ELDORADO VILLAGE, L.L.C., a
Delaware limited liability company, having its principal place of business at
c/o Equity LifeStyle Properties, Inc., Two North Riverside Plaza, Suite 800,
Chicago, Illinois 60606 ("BORROWER"), the principal sum of EIGHT MILLION DOLLARS
($ 8,000,000) (the "LOAN"), evidenced by a certain promissory note (the "NOTE")
and secured by a certain mortgage, security agreement and fixture filing (the
"SECURITY INSTRUMENT"), as described in Exhibit A attached hereto and made a
part hereof, and by other documents executed in connection therewith (the "OTHER
SECURITY DOCUMENTS").
1. As of this 1st day of December, 2005 the undersigned, MHC Operating
Limited Partnership, an Illinois limited partnership, having an address at c/o
Equity LifeStyle Properties, Inc., Two North Riverside Plaza, Suite 800,
Chicago, Illinois 60606 (hereinafter referred to as "GUARANTOR"), hereby
absolutely and unconditionally guarantees to Lender the prompt and unconditional
payment of the Guaranteed Recourse Obligations of Borrower (hereinafter
defined).
2. It is expressly understood and agreed that this is a continuing
guaranty and that the obligations of Guarantor hereunder are and shall be
absolute under any and all circumstances, without regard to the validity,
regularity or enforceability of the Note, the Security Instrument, or the Other
Security Documents, a true copy of each of said documents Guarantor hereby
acknowledges having received and reviewed.
3. The term "DEBT" as used in this Guaranty of Recourse Obligations of
Borrower (this "GUARANTY") shall mean the principal sum evidenced by the Note
and secured by the Security Instrument, or so much thereof as may be outstanding
from time to time, together with interest thereon at the rate of interest
specified in the Note and all other sums other than principal or interest which
may or shall become due and payable pursuant to the provisions of the Note, the
Security Instrument or the Other Security Documents.
4. The term "GUARANTEED RECOURSE OBLIGATIONS OF BORROWER" as used in
this Guaranty shall mean all obligations and liabilities of Borrower for which
Borrower shall be personally liable pursuant to Section 10.11 of the Note.
5. Any indebtedness of Borrower to Guarantor now or hereafter existing
(including, but not limited to, any rights to subrogation Guarantor may have as
a result of any payment by Guarantor under this Guaranty), together with any
interest thereon, shall be, and such indebtedness is, hereby deferred, postponed
and subordinated to the prior payment in full of the Debt. Until payment in full
of the Debt (and including interest accruing on the Note after the commencement
of a proceeding by or against Borrower under the Bankruptcy Reform Act of 1978,
as amended, 11 U.S.C. Sections 101 et seq., and the regulations adopted and
promulgated
pursuant thereto (collectively, the "BANKRUPTCY CODE") which interest the
parties agree shall remain a claim that is prior and superior to any claim of
Guarantor notwithstanding any contrary practice, custom or ruling in cases under
the Bankruptcy Code generally), Guarantor agrees not to accept any payment or
satisfaction of any kind of indebtedness of Borrower to Guarantor and hereby
assigns such indebtedness to Lender, including the right to file proof of claim
and to vote thereon in connection with any such proceeding under the Bankruptcy
Code, including the right to vote on any plan of reorganization. Further, if
Guarantor shall comprise more than one person, firm or corporation, Guarantor
agrees that until such payment in full of the Debt, (a) no one of them shall
accept payment from the others by way of contribution on account of any payment
made hereunder by such party to Lender, (b) no one of them will take any action
to exercise or enforce any rights to such contribution, and (c) if any of
Guarantor should receive any payment, satisfaction or security for any
indebtedness of Borrower to any of Guarantor or for any contribution by the
others of Guarantor for payment made hereunder by the recipient to Lender, the
same shall be delivered to Lender in the form received, endorsed or assigned as
may be appropriate for application on account of, or as security for, the Debt
and until so delivered, shall be held in trust for Lender as security for the
Debt.
6. Guarantor agrees that, with or without notice or demand, Guarantor
will reimburse Lender, to the extent that such reimbursement is not made by
Borrower, for all expenses (including counsel fees) incurred by Lender in
connection with the collection of the Guaranteed Recourse Obligations of
Borrower or any portion thereof or with the enforcement of this Guaranty.
7. All moneys available to Lender for application in payment or
reduction of the Debt may be applied by Lender in such manner and in such
amounts and at such time or times and in such order and priority as Lender may
see fit to the payment or reduction of such portion of the Debt as Lender may
elect.
8. Guarantor hereby waives notice of the acceptance hereof,
presentment, demand for payment, protest, notice of protest, or any and all
notice of non-payment, non-performance or non-observance, or other proof, or
notice or demand, whereby to charge Guarantor therefor.
9. Guarantor further agrees that the validity of this Guaranty and the
obligations of Guarantor hereunder shall in no way be terminated, affected or
impaired (a) by reason of the assertion by Lender of any rights or remedies
which it may have under or with respect to either the Note, the Security
Instrument, or the Other Security Documents, against any person obligated
thereunder or against the owner of the Property (as defined in the Security
Instrument), or (b) by reason of any failure to file or record any of such
instruments or to take or perfect any security intended to be provided thereby,
or (c) by reason of the release or exchange of any property covered by the
Security Instrument or other collateral for the Loan, or (d) by reason of
Lender's failure to exercise, or delay in exercising, any such right or remedy
or any right or remedy Lender may have hereunder or in respect to this Guaranty,
or (e) by reason of the commencement of a case under the Bankruptcy Code by or
against any person obligated under the Note, the Security Instrument or the
Other Security Documents, or the death of any Guarantor, or (f) by reason of any
payment made on the Debt or any other indebtedness arising under the Note, the
Security Instrument or the Other Security Documents, whether made by Borrower or
Guarantor or any other person, which is required to be refunded pursuant to any
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bankruptcy or insolvency law; it being understood that no payment so refunded
shall be considered as a payment of any portion of the Debt, nor shall it have
the effect of reducing the liability of Guarantor hereunder.
10. Guarantor further covenants that this Guaranty shall remain and
continue in full force and effect as to any modification, extension or renewal
of the Note, the Security Instrument, or any of the Other Security Documents,
that Lender shall not be under a duty to protect, secure or insure any security
or lien provided by the Security Instrument or other such collateral, and that
other indulgences or forbearance may be granted under any or all of such
documents, all of which may be made, done or suffered without notice to, or
further consent of, Guarantor.
11. As a further inducement to Lender to make the Loan and in
consideration thereof, Guarantor further covenants and agrees (a) that in any
action or proceeding brought by Lender against Guarantor on this Guaranty,
Guarantor shall and does hereby waive trial by jury, (b) 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 the United
States District Court located in New York County, 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 Security Instrument brought in any such court, irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum, and (c) nothing in this
Guaranty will be deemed to preclude Lender from bringing an action or proceeding
with respect hereto in any other jurisdiction.
12. This is a guaranty of payment and not of collection and upon any
default of Borrower under the Note, the Security Instrument or the Other
Security Documents, Lender may, at its option, proceed directly and at once,
without notice, against Guarantor to collect and recover the full amount of the
liability hereunder or any portion thereof, without proceeding against Borrower
or any other person, or foreclosing upon, selling, or otherwise disposing of or
collecting or applying against any of the mortgaged property or other collateral
for the Loan. Guarantor hereby waives the pleading of any statute of limitations
as a defense to the obligation hereunder.
13. Each reference herein to Lender shall be deemed to include its
successors and assigns, to whose favor the provisions of this Guaranty shall
also inure. Each reference herein to Guarantor shall be deemed to include the
heirs, executors, administrators, legal representatives, successors and assigns
of Guarantor, all of whom shall be bound by the provisions of this Guaranty.
14. If any party hereto shall be a partnership, the agreements and
obligations on the part of Guarantor herein contained shall remain in force and
application notwithstanding any changes in the individuals composing the
partnership and the term "Guarantor" shall include any altered or successive
partnerships but the predecessor partnerships and their partners shall not
thereby be released from any obligations or liability hereunder.
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15. Guarantor (and its representative, executing below, if any) has
full power, authority and legal right to execute this Guaranty and to perform
all its obligations under this Guaranty.
16. All understandings, representations and agreements heretofore had
with respect to this Guaranty are merged into this Guaranty which alone fully
and completely expresses the agreement of Guarantor and Lender.
17. This Guaranty may be executed in one or more counterparts by some
or all of the parties hereto, each of which counterparts shall be an original
and all of which together shall constitute a single agreement of Guaranty. The
failure of any party hereto to execute this Guaranty, or any counterpart hereof,
shall not relieve the other signatories from their obligations hereunder.
18. This Guaranty may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act or failure to act on the
part of Lender or Borrower, but only by an agreement in writing signed by the
party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
19. This Guaranty shall be deemed to be a contract entered into
pursuant to the laws of the State of New York and shall in all respects be
governed, construed, applied and enforced in accordance with applicable federal
law and the laws of the State of New York, without reference or giving effect
to any choice of law doctrine.
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IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the
day and year first above written.
GUARANTOR:
MHC OPERATING LIMITED PARTNERSHIP,
an Illinois limited partnership
By: MHC Trust, a Maryland real estate
investment trust, its general partner
By: Equity LifeStyle Properties,
Inc., a Maryland corporation,
its sole voting shareholder
By: /s/ David Fell
--------------------------------
David Fell
Vice President
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EXHIBIT A
(DESCRIPTION OF NOTE AND SECURITY INSTRUMENT)
1. Promissory Note dated December 1, 2005 by Borrower in favor of
Lender in the original principal amount of the Loan.
2. Mortgage, Security Agreement and Fixture Filing dated December 1,
2005 by Borrower in favor of Lender, which Mortgage, Security Agreement and
Fixture Filing secures the Note.