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Exhibit 10.246
Loan No. 6518403
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("GUARANTY"), dated as of June 28, 2004 by INLAND
WESTERN DULUTH JOHN'S CREEK SPE, L.L.C., a Delaware limited liability company
("GUARANTOR"), in favor of JOHN HANCOCK LIFE INSURANCE COMPANY, a Massachusetts
corporation ("LENDER"), and the subsequent owners and holders of the herein
below defined Note.
RECITALS:
A. Inland Western Duluth John's Creek SPE, L.L.C., a Delaware limited
liability company ("BORROWER") has requested a loan (the "LOAN") from Lender in
the amount of $23,300,000.00 (the "LOAN AMOUNT") to be evidenced by the Mortgage
Note of even date herewith executed by Borrower, payable to Lender in the Loan
Amount (the "NOTE"), and secured by, INTER ALIA, that certain Mortgage,
Assignment of Leases and Rents and Security Agreement dated of even date
herewith (the "MORTGAGE") executed by Borrower in favor of Lender covering
certain property more particularly described in the Mortgage;
B. Section 19 of the Note sets forth certain amounts, obligations and
other liabilities for which Borrower is fully liable to Lender (the
"NON-RECOURSE CARVEOUT OBLIGATIONS"), notwithstanding limitations on Borrower's
liability pursuant to said Section 19 of the Note; and
C. As a condition to making the Loan, Lender has required that
Borrower as Guarantor expressly and explicitly and separately guarantee the
payment of the Non-Recourse Carveout Obligations and performance of the
obligations set forth in Section 1 below (the "GUARANTEED OBLIGATIONS").
AGREEMENT:
NOW, THEREFORE, as a material inducement to Lender to agree to make the
Loan to Borrower, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Guarantor hereby does irrevocably
and unconditionally warrant and represent unto and covenant with Lender as
follows:
1. GUARANTY. Guarantor hereby (a) guarantees unto Lender the full
and timely payment of the amounts due, or to become due, to Lender under the
Non-Recourse Carveout Obligations and (b) agrees with Lender to pay to Lender
(i) the amounts due under the Non-Recourse Carveout Obligations within five (5)
days from the date Lender notifies Guarantor of Borrower's failure to pay the
same, if and when the same becomes due, and at the place specified in the Note
for payment and (ii) Lender's reasonable attorneys' fees and all court costs
incurred by Lender in enforcing or protecting any of Lender's rights, remedies
or recourses hereunder. Guarantor is not hereby guaranteeing payment of any
portion of the indebtedness or performance of any portion of the obligations
under the documents evidencing, securing, guaranteeing or executed in connection
with the Loan (the "LOAN DOCUMENTS"), other than the Non-Recourse Carveout
Obligations.
2. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor hereby
warrants and represents unto Lender as follows:
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(a) that this Guaranty constitutes the legal, valid and binding
obligation of Guarantor and is fully enforceable against Guarantor in accordance
with its terms;
(b) Guarantor is solvent and the execution of this Guaranty does
not render Guarantor insolvent. Any and all financial statements, balance
sheets, net worth statements and other financial data which have heretofore been
furnished to Lender with respect to Guarantor fairly and accurately present the
financial condition of Guarantor as of the date they were furnished to Lender
and, since that date, there has been no material adverse change in the financial
condition of Guarantor;
(c) that there are no legal proceedings or material claims or
demands pending against or, to the best of Guarantor's knowledge threatened
against, Guarantor or any of its assets;
(d) that the execution and delivery of this Guaranty and the
assumption of liability hereunder have been in all respects authorized and
approved by Guarantor; Guarantor has full authority and power to execute this
Guaranty and to perform its obligations hereunder; and
(e) that neither the execution nor the delivery of this Guaranty
nor the fulfillment and compliance with the provisions hereof will conflict
with, result in a breach of, constitute a default under or result in the
creation of any lien, charge, or encumbrance upon any property or assets of
Guarantor under any agreement or instrument to which Guarantor is now a party or
by which it may be bound.
3. WAIVER. Guarantor hereby waives (a) for itself as Guarantor but not
for itself in its capacity as Borrower all notices of acceptance hereof,
protest, demand and dishonor, presentment, notice of nonpayment, notice of
intention to accelerate maturity, notice of acceleration of maturity and all
notices and demands of any kind now or hereafter provided for by any statute or
rule of law other than the five (5) day notice referred to in PARAGRAPH 1 above,
(b) any and all requirements that Lender institute any action or proceeding, or
exhaust or attempt to enforce any or all of Lender's right, remedies or
recourses against Borrower or anyone else or in respect of any mortgaged
property or collateral covered by any Loan Documents, or join Borrower or any
other persons liable on the Non-Recourse Carveout Obligations in any action to
enforce this Guaranty as a condition precedent to bringing an action against
Guarantor upon this Guaranty, it being expressly agreed that the liability of
Guarantor hereunder shall be primary and not secondary, (c) any defense arising
by reason of any disability, insolvency, lack of authority or power, death,
insanity, minority, dissolution or any other defense of Borrower, or any other
surety, co-maker, endorser or guarantor of the Non-Recourse Carveout Obligations
(even though rendering same void, unenforceable or otherwise uncollectible), it
being agreed that Guarantor shall remain liable hereon regardless of whether
Borrower or any other such person be found not liable thereon for any reason,
(d) all suretyship defenses of every kind and nature and (e) any claim Guarantor
might otherwise have against Lender by virtue of Lender's invocation of any
right, remedy or recourse permitted it hereunder or under the Loan Documents.
This is a guaranty of payment and not a guaranty of collection.
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4. SUBSEQUENT ACTS. Guarantor hereby agrees with Lender that (a) the
payments called for and provisions contained in the Loan Documents, including
specifically (but without limitation) the Note, may be renewed, extended,
rearranged, modified, released or canceled, (b) all or any part of any mortgaged
property and collateral for the indebtedness may be released from, and any new
or additional security may be added to, the lien and security interest of the
Loan Documents, (c) any additional parties who may become personally liable for
repayment of the Note may hereafter be released from their liability hereunder
and thereon and (d) Lender may take, or delay in taking or refuse to take, any
and all action with reference to the Note and the other Loan Documents
(regardless of whether same might vary the risk or alter the rights, remedies or
recourses of Guarantor), including specifically (but without limitation) the
settlement or compromise of any amount allegedly due thereunder, all without
notice or consideration to or the consent of Guarantor, and no such acts shall
in any way release, diminish or affect the absolute nature of Guarantor's
obligations and liabilities hereunder. It is the intent of Guarantor and Lender
that such obligations and liabilities hereunder are primary, absolute and
unconditional under any and all circumstances and that, until the Non-Recourse
Carveout Obligations are fully and finally satisfied, such obligations and
liabilities shall not be discharged or released, in whole or in part, by any act
or occurrence which, but for this PARAGRAPH 4, might be deemed a legal or
equitable discharge or release of Guarantor.
5. REMEDIES CUMULATIVE. Guarantor hereby agrees with Lender that all
rights, remedies and recourses afforded to Lender by reason of this Guaranty or
otherwise are (a) separate and cumulative and may be pursued separately,
successively or concurrently, as occasion therefor shall arise, and (b)
non-exclusive and shall in no way limit or prejudice any other legal or
equitable right, remedy or recourse which Lender may have.
6. SUBORDINATION AND NO SUBROGATION. If, for any reason whatsoever,
Borrower now is or hereafter becomes indebted to Guarantor, such indebtedness
and all interest thereon, shall, at all times, be subordinate in all respects to
the Loan Documents, and Guarantor shall not be entitled to enforce or receive
payment thereof until the Non-Recourse Carveout Obligations have been fully
satisfied. Notwithstanding anything to the contrary contained in this Guaranty
or any payments made by Guarantor hereunder, Guarantor shall not have any right
of subrogation in or under the Loan Documents or to participate in any way
therein or in any right, title or interest in and to any mortgaged property or
any collateral for the Loan, all such rights of subrogation and participation,
together with any other contractual, statutory or common law right which
Guarantor may have to be reimbursed for any payments Guarantor may make to
Lender pursuant to this Guaranty, being hereby expressly waived and released
until the Loan is paid in full.
7. LAW GOVERNING AND SEVERABILITY. This Guaranty shall be governed by
and construed in accordance with the laws of the State of Georgia without regard
to conflict of law provisions thereof and is intended to be performed in
accordance with, and only to the extent permitted by, such laws. If any
provision of this Guaranty or the application thereof to any person or
circumstance, for any reason and to any extent, shall be invalid or
unenforceable, neither the remainder of this Guaranty nor the application of
such provision to any other persons or circumstances shall be affected thereby,
but rather the same shall be enforced to the greatest extent permitted by law.
Guarantor hereby submits to personal jurisdiction in said state for the
enforcement of this Guaranty and hereby waives any claim or right under the laws
of any other
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state or of the United States to object to such jurisdiction. If such litigation
is commenced, Guarantor agrees that service of process may be made by serving a
copy of the summons and complaint upon Guarantor, through any lawful means,
including upon its registered agent within said state, whom Guarantor hereby
appoints as its agent for these purposes. Nothing contained herein shall prevent
Lender from bringing any action or exercising any rights against Guarantor
personally or against any property of Guarantor within any other county, state,
or country. The means of obtaining personal jurisdiction and perfecting service
of process set forth above are not intended to be exclusive but are in addition
to all other means of obtaining personal jurisdiction and perfecting service of
process now or hereafter provided by applicable law.
8. SUCCESSORS AND ASSIGNS. This Guaranty and all the terms, provisions
and conditions hereof shall be binding upon Guarantor and the Guarantor's heirs,
legal representatives, successors and assigns and shall inure to the benefit of
Lender, its successors and assigns and all subsequent holders of the Note.
9. PARAGRAPH HEADINGS. The paragraph headings inserted in this
Guaranty have been included for convenience only and are not intended, and shall
not be construed, to limit or define in any way the substance of any paragraph
contained herein.
10. EFFECT OF BANKRUPTCY. This Guaranty shall continue to be effective
or reinstated, as the case may be, if at any time payment to Lender of all or
any part of the Non-Recourse Carveout Obligations is rescinded or must otherwise
be restored or refunded by Lender pursuant to any insolvency, bankruptcy,
reorganization, receivership or other debtor relief proceeding involving
Borrower. In the event that Lender must rescind or restore any payment received
by Lender in satisfaction of the Non-Recourse Carveout Obligations, as set forth
herein, any prior release or discharge of the terms of this Guaranty given to
Guarantor by Lender shall be without effect and this Guaranty shall remain in
full force and effect.
11. NOTICES. All notices given hereunder shall be deemed effective if
given in accordance with the notice provisions of the Mortgage, provided,
however, that the notices given to Guarantor shall be sent to the following
address: 2901 Butterfield Road, Oak Brook, Illinois 60523.
12. BENEFIT. Guarantor warrants and represents that Guarantor has
received, or will receive, direct or indirect benefit from the execution and
delivery of this Guaranty.
13. NO REPRESENTATIONS BY LENDER. Neither Lender nor anyone acting on
behalf of Lender has made any representation, warranty or statement to Guarantor
to induce Guarantor to execute and deliver this Guaranty.
14. APPLICATION OF FORECLOSURE PROCEEDS. In the event of any
foreclosure sales of the mortgaged property and collateral covered by the Loan
Documents, the proceeds of such sales shall be applied first to the discharge of
that portion of the indebtedness then remaining unpaid as to which Guarantor is
not fully personally liable pursuant to this Guaranty, it being the express
intention of the parties that the application of the proceeds of such
foreclosure sales shall be in such a manner as not to extinguish or reduce
Guarantor's personal liability hereunder until all of the indebtedness as to
which Guarantor is not personally liable hereunder has been paid in
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full. Nothing contained in this PARAGRAPH 14 shall be construed to require that
Lender foreclose the liens and security interests created in the Loan Documents
as a condition precedent to bringing an action against Guarantor upon this
Guaranty, or as an agreement that Guarantor's liability is limited to any
deficiency remaining after such a foreclosure.
15. JOINT AND SEVERAL LIABILITY. If more than one person is included in
the definition of Guarantor, the liability of all such persons hereunder shall
be joint and several.
16. STATE SPECIFIC PROVISIONS. The provisions of this Section 16 are an
integral part of this Guaranty. In the event of any inconsistencies between the
other terms and provisions of this Guaranty and the terms and provisions of this
Section 16, the terms and provisions of this Section 16 shall be controlling.
(a) DEED TO SECURE DEBT. Paragraph A of the Recitals of this Guaranty
is amended by changing the title of the real estate security instrument from
"Mortgage, Assignment of Leases and Rents and Security Agreement" to "Deed to
Secure Debt, Assignment of Leases and Rents and Security Agreement" and the
defined term "Mortgage" shall be deemed to refer to such instrument.
(b) WAIVERS. The Guarantor expressly waives: (i) any right to be
discharged or released in whole or in part by reason of any sale or assignment
by Borrower of the collateral, or any portion thereof, whether or not consented
to by Lender and whether or not Lender has any dealings with the transferee; and
(ii) any and all rights Guarantor may have under Georgia Code Section 10-7-24
and Georgia Code Section 44-14-161 (it being intended that Guarantor shall be
primarily liable hereunder notwithstanding Lender's failure to confirm any
foreclosure sale pursuant to said provision) or any similar or successor
statutory provision. The Guarantor further expressly waives any right or option
to be discharged or released in whole or in part by reason of any of the matters
described in (i) the foregoing provisions of this paragraph, or (ii) Sections 3,
4 or 14 of this Guaranty.
(c) EXECUTION UNDER SEAL. THE GUARANTOR IS EXECUTING THIS GUARANTY
UNDER SEAL WITH THE EXPRESS INTENTION THAT THIS GUARANTY BE CONSTRUED AS AN
INSTRUMENT EXECUTED UNDER SEAL AND THE PHRASE "UNDER SEAL" IS HEREBY INSERTED
AFTER THE PHRASE "EXECUTED" IN THE LAST SENTENCE OF THIS GUARANTY APPEARING
BELOW.
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Loan No. 6518403
EXECUTED effective as of the date first above written.
INLAND WESTERN DULUTH JOHN'S
CREEK SPE, L.L.C., a Delaware limited liability
company
By: Inland Western Duluth John's Creek, L.L.C.,
a Delaware limited liability company, its Sole
Member
By: Inland Western Retail Real Estate
Trust, Inc., a Maryland corporation,
its Sole Member
By: /s/ Debra A Palmer
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Name: Debra A Palmer
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Title: Asst Secretary
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Attest:
/s/ Valerie Medina
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Asst Secretary
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[Affix Corporate Seal]
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