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Exhibit 10.260
Allstate Life Insurance Company
Loan No. 122497
INDEMNITY GUARANTY
THIS INDEMNITY GUARANTY (the "Guaranty") is executed and delivered as of
July 21, 2004, by BEL AIR SQUARE LLC, a Maryland limited liability limited
company ("Guarantor") to and for the benefit of ALLSTATE LIFE INSURANCE COMPANY,
an Illinois insurance corporation ("Lender").
RECITALS
A. Inland Bel Air SPE, L.L.C., a Delaware limited liability company
("Borrower"), an affiliate of Guarantor, is indebted to Lender for a loan in the
amount of THIRTY NINE MILLION SEVEN HUNDRED SIXTY FIVE THOUSAND DOLLARS
($39,765,000) (the "Loan") as evidenced by a Mortgage Note (the "Note") of even
date herewith, made by Borrower in the principal amount of the Loan and with a
maturity date of June 1, 2009. Full repayment of the Note is secured by this
Guaranty.
B. This Guaranty is secured by, INTER ALIA, (a) an Indemnity Deed
of Trust, Assignment of Leases, Rents and Contracts, Security Agreement and
Fixture Filing (the "Deed of Trust"), of even date herewith, from Guarantor, as
grantor, to Edward A. Bloom and Lawrence M. Prosen, as trustee, in favor of
Lender, as beneficiary, covering certain real property, the improvements thereon
and certain personal property situated in the County of Harford, State of
Maryland, and described in the Deed of Trust (the "Property"), and (b) those
certain instruments of indebtedness and security described as "Related
Agreements" in the Deed of Trust. This Guaranty, the Note, the Deed of Trust,
and the Related Agreements referred to in the Deed of Trust are sometimes
collectively referred to as the "Loan Documents."
C. Guarantor is the sole member of Borrower and will derive
substantial direct and indirect benefits by reason of Lender making the Loan.
D. To induce Lender to make the Loan and to grant such other
accommodations to Borrower as Lender may deem appropriate, and with full
knowledge that the Loan and any such other accommodations would not be made
unless Guarantor executes and delivers this Guaranty, the Deed of Trust and the
other Loan Documents, Guarantor has agreed with Lender to guarantee the payment
of the sums specified herein.
AGREEMENTS
NOW, THEREFORE, in consideration of, and as a material inducement to,
Lender making the Loan to Borrower and granting to Borrower such other
accommodations as Lender may deem appropriate, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned Guarantor hereby covenants to and agrees with Lender as follows:
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1. INCORPORATION OF RECITALS. The foregoing Recitals are hereby
incorporated in this Guaranty and made a part hereof by this reference.
2. GUARANTEED OBLIGATIONS. Guarantor hereby absolutely guarantees
to Lender and shall stand as surety for the due and punctual payment (and not
merely collection), when due and/or at maturity, whether by acceleration or
otherwise, and at all times thereafter, of each of the following (hereinafter
referred to collectively as the "Guaranteed Obligations"):
(a) principal, interest, late charges, costs, expenses (including
reasonable attorneys' fees) and all other charges or advancements due or to
become due (whether by acceleration or otherwise) in respect of the Note and/or
under the Deed of Trust or any of the other Loan Documents;
(b) all sums relating to the Loan which may be or may become secured
by the lien of the Deed of Trust, and the due and punctual payment of all taxes,
assessments and insurance premiums, and all other sums and charges required by,
and the due and punctual performance and observance by Borrower of all of the
terms, covenants and conditions of the Note, whether according to the present
terms thereof, at any earlier or accelerated date or dates as provided therein,
or pursuant to any extension of time or to any change or changes in the terms,
covenants and conditions thereof, now or at any time hereafter made or granted
by Lender; and
(c) the payment of all other sums which may be advanced by or
otherwise be due to Lender under any provision of the Deed of Trust or under any
of the other Loan Documents, with interest thereon at the rate provided herein
or therein;
(d) the performance of each and every covenant and agreement of
Guarantor or Borrower contained (1) in any note evidencing a Future Advance (as
defined in the Deed of Trust), and (2) in any of the Loan Documents;
(e) all costs, expenses, losses, damages and other charges sustained
or incurred by Lender because of: (1) the default by Guarantor or Borrower in
payment or performance, as the case may be, of any provision contained in any of
the Loan Documents; (2) defense of actions instituted by Guarantor or Borrower
or a third party against Lender arising out of or related to the Loan or in the
realizing upon, protecting, perfecting or defending the Property or the
Collateral described in the Deed of Trust; or (3) actions brought or defended by
Lender in enforcing its security interest in the Property or the Collateral
described in the Deed of Trust. All of these costs and expenses include
reasonable attorneys' fees and paralegals' fees, whether incurred with respect
to collection, litigation, bankruptcy proceedings, interpretation, dispute,
negotiation, trial, appeal, defensive actions instituted by a third party
against mortgagee, or enforcement or any judgment based upon any of the Loan
Documents, whether or not suit is brought to collect such amounts or to enforce
such rights or, if brought, is prosecuted to judgment;
(f) all costs, expenses, and amounts arising under or pursuant to
any indemnity contained within any of the Loan Documents, or in any separate
agreement executed by Guarantor or Borrower in favor of Lender;
(g) the repayment of any other loans or advances, with interest
thereon, hereafter made to Borrower (or any successor in interest to Borrower,
as the case may be) by Lender when
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the promissory note evidencing the loan or advance specifically states that said
note is secured by this Guaranty, together with all extensions, renewals,
modifications, amendments and replacements thereof (herein and in the Loan
Documents, "Future Advance"); and
(h) the payment on demand of all Enforcement Costs (as hereinafter
defined).
The obligation of Guarantor hereunder shall in no way be released,
impaired, affected, extinguished or diminished by any actions Lender may take or
fail to take with respect to the Loan Documents or any collateral security
therefor, including, but not limited to, a foreclosure of any such collateral.
The obligation of Guarantor to pay Lender shall continue without regard to the
number of advances or the amount of any advance made to Borrower or to amounts
applied by Lender for the account of Borrower on the Loan from the proceeds of
any enforcement action under the Loan Documents, whether by foreclosure or
otherwise. Lender shall have the right to determine how, when and what
application of payments and credits, if any, derived from the security for this
Guaranty or the Loan, shall be made on the Guaranteed Obligations, and this
Guaranty shall apply to and secure any ultimate balance of the Guaranteed
Obligations that shall remain owing to Lender.
Anything in this Guaranty to the contrary notwithstanding, Guarantor's
liability hereunder shall be conditioned on, and shall arise immediately and
automatically upon, the occurrence of an Event of Default.
3. GUARANTOR'S AGREEMENTS. Guarantor hereby: (i) waives diligence,
presentment, protest, notice of dishonor, demands for payment, extension of time
of payment, acceptance and notice of acceptance of this Guaranty, non-payment
(whether at maturity or otherwise) and indulgences and notices of every kind
(except notice of default specifically set forth in the Deed of Trust or in any
of the other Loan Documents); (ii) waives, solely for the benefit of Lender and
any subsequent holder of this Guaranty, any right of indemnification which
Guarantor might have against Borrower or any other guarantor of the Guaranteed
Obligations, whether by contract, agreement or operation of law; (iii) consents
to any and all waivers, forbearances and extensions of the time of payment of
the Note, the Deed of Trust and all of the other Loan Documents; (iv) consents
to any and all changes in the terms, covenants and conditions of the Note or any
of the other Loan Documents hereafter made or granted to Borrower by Lender; (v)
consents to any and all substitutions, exchanges, releases or subordinations of
all or any part of the collateral for this Guaranty or for the Loan; (vi)
consents to any addition of additional guarantors or the release or substitution
of any such guarantor hereunder; (vii) waives the benefit of all appraisement,
valuation, marshalling, forbearance, stay, extension, redemption, homestead,
exemption and moratorium laws now or hereafter in effect; (viii) waives any
defense based on the incapacity, lack of authority, death or disability of any
other person or entity or the failure of Lender to file or enforce a claim
against the estate of any other person or entity in any administrative,
bankruptcy or other proceeding; (ix) waives any defense based on an election of
remedies by Lender, whether or not such election may affect in any way the
recourse, subrogation or other rights of Guarantor against Borrower or any other
person in connection with the Guaranteed Obligations; (x) waives any defense
based on the negligence of Lender in administering the Loan and/or the Loan
Documents or taking or failing to take any action in connection therewith, or
based on the federal Equal Credit Opportunity Acts and applicable regulations or
the Equal Credit Opportunity Acts and applicable regulations of any state
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including without limitation the States of Maryland and Illinois; (xi) to the
extent permitted by applicable law, waives any defense based on the failure of
Lender to (a) provide notice to Guarantor of a sale or other disposition
(including any collateral sale pursuant to the Uniform Commercial Code) of any
of the security for any of the Guaranteed Obligations, or (b) conduct such a
sale or disposition in a commercially reasonable manner; (xii) waives the
defense of expiration of any statute of limitations affecting the liability of
Guarantor hereunder or the enforcement hereof, (xiii) waives any other defenses
of Guarantor to the Guaranteed Obligations, including any claim of offset or
counterclaim by Guarantor of loss of contribution from any co-guarantor with
respect thereto, and (xiv) waives any right to file any "Claim" (as hereinafter
defined), other than a compulsory counterclaim, as part of, and any right to
request consolidation of any action or proceeding relating to a Claim with, any
action or proceeding filed or maintained by Lender to collect any indebtedness
of Guarantor to Lender hereunder or to exercise any rights or remedies available
to Lender under the Loan Documents, at law, in equity or otherwise. The
intention of the foregoing is that Guarantor shall remain liable under this
Guaranty as principal notwithstanding any act, omission or thing which might
otherwise operate as a legal or equitable discharge of Guarantor or a legal or
equitable limitation on or diminution of the liability of Guarantor hereunder.
It is the intent of the foregoing to have Guarantor waive any and all defenses
to payment of the Loan which it may have such that Guarantor is liable to the
same extent as if it were maker of the Note immediately upon the occurrence of
any Event of Default under any of the Loan Documents Guarantor hereby agrees not
to assert any rights or defenses which arise by reason of structuring the Loan
as a loan to Borrower secured by this Guaranty. Guarantor acknowledges that
without this agreement, Lender would not make the Loan to Borrower. For purposes
of this section, the term "Claim" shall mean any claim, action or cause of
action, defense, counterclaim, set-off or right of recoupment of any kind or
nature against Lender, its officers, directors, employees, agents or attorneys,
in connection with the making, closing, administration, collection or
enforcement by Lender of the indebtedness and obligations evidenced by the Note
or the other Loan Documents (including, but not limited to, this Guaranty).
4. SUBORDINATION OF INDEBTEDNESS. All existing and future
indebtedness of Borrower to Guarantor, or to any entity owned and/or controlled
by Guarantor (herein referred to as an "Affiliate"), is hereby subordinated to
the Guaranteed Obligations. So long as this Guaranty is in effect, upon a
default under any of the Loan Documents which continues beyond the expiration of
any applicable grace period provided therein, without the prior written consent
of Lender, such subordinated indebtedness shall not be paid or withdrawn in
whole or in part, nor shall Guarantor cause or permit any Affiliate to accept
any payment of or on account of any such indebtedness or as a withdrawal of
capital, nor shall Guarantor accept any such payment.
5. SUBROGATION. Guarantor agrees that it shall have no, and hereby
waives, rights of subrogation whatsoever with respect to the Note or to any
monies due and unpaid thereon or any collateral securing the same, and all other
rights that would result in such Guarantor being deemed a creditor of Borrower
under the Federal Bankruptcy Code or any other law, unless and until Lender
shall have received payment in full of all sums at any time secured by the Deed
of Trust and all of the other Loan Documents.
6. INDEPENDENT OBLIGATION AND ENFORCEMENT. The obligations of
Guarantor hereunder shall be, in each instance, absolute and unconditional and
independent of the
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obligations of Borrower or any other guarantor. Borrower's liability under the
Note is separate and distinct from Guarantor's liability hereunder and this
Guaranty shall in no way limit the liability of Borrower provided for in the
Note. Following the occurrence of an Event of Default hereunder or under the
Note, Lender may proceed directly against Guarantor (or any other guarantor) to
enforce its rights under this or any other guaranty without proceeding against
or joining Borrower or any other guarantors. This Guaranty may be independently
enforced by Lender without first resorting to or having recourse to the Note,
the Deed of Trust or any other Loan Document or the Property or any portion
thereof, through foreclosure proceedings or otherwise; provided, however, that
nothing herein contained shall prevent Lender from suing on the Note without
making Guarantor a party to the suit, or from foreclosing on any of the Loan
Documents, or from exercising any other rights thereunder; and, if such suit,
foreclosure or other remedy is availed of, only the net proceeds therefrom,
after deduction of all charges and expenses of every kind and nature whatsoever,
shall be applied in reduction of the amount then due on the Note and/or under
any other Loan Documents, and Lender shall not be required to institute or
prosecute proceedings against Borrower to recover any deficiency as a condition
of payment hereunder or enforcement hereof. Guarantor hereby waives any rights
it may have to compel Lender to proceed against Borrower or any security or to
participate in any security for sums guaranteed hereby. Neither the declaration
of a default, nor the exercise of any remedy against Borrower, nor the sale,
enforcement or realization of any security for the Note, shall in any way affect
any Guarantor's obligations hereunder, even though rights which such Guarantor
may have against Borrower or others may be destroyed, diminished or otherwise
affected by such action. At any sale of the security or collateral for the Note
or any part thereof, whether by foreclosure or otherwise, Lender in its sole
discretion may purchase all or any part of such collateral so sold or offered
for sale for its own account and may apply against the amount bid therefor an
equal amount out of the balance due it pursuant to the terms of the Note and the
other Loan Documents. Any amount received by Lender from whatever source may be
applied by it towards the payment of the Note, sums due under the Deed of Trust
or any of the other Loan Documents, expenses incurred in the collection of the
indebtedness and expenses incurred in the protection or preservation of the
priority and security of its lien, in such order of application as Lender may
from time to time elect in its sole discretion.
7. RELEASES AND IMPAIRMENT. Guarantor agrees that its obligation to
make payment in accordance with the terms of this Guaranty shall not be
impaired, modified, changed, released or limited, in any manner whatsoever, by
any impairment, modification, change, release or limitation of the liability of
Borrower or its estate resulting from the operation of any present or future
provision of any federal, state or local bankruptcy or insolvency laws, or from
the decision of any court, and shall not be impaired, modified, changed,
released or limited by the release from this Guaranty of any other guarantor.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time payment of the Guaranteed Obligations, or any portion
thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by Lender, whether as a "preferential
transfer", "voidable preference", "fraudulent conveyance" or otherwise, all as
though Guarantor never made the payment so restored, returned or rescinded or
the portion of the payment which exceeds the reduced amount thereof, Guarantor
promptly shall file in any bankruptcy or other proceeding in which the filing of
claims is required by law, all claims and proofs of Claims that Guarantor may
have against Borrower or any other guarantor and hereby assigns to Lender or its
nominee (and will, upon request of Lender, reconfirm in writing the assignment
to Lender or its nominee of) all rights of
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Guarantor under such claims. If Guarantor does not file any such claim, Lender,
as attorney-in-fact for Guarantor, is hereby authorized to do so in the name of
Guarantor, or in Lender's discretion, to assign the claim to a designee and
cause proof of claim to be filed in the name of Lender's designee. In all such
cases, whether in administration, bankruptcy or otherwise, the person or persons
authorized to pay such claim shall pay to Lender the full amount thereof and, to
the full extent necessary for that purpose, Guarantor hereby assigns to Lender
all of Guarantor's rights to any such payments or distributions to which
Guarantor would otherwise be entitled. In the event (a) Borrower, Guarantor or
any other guarantor shall (i) file, voluntarily or be filed against
involuntarily, for protection under the U.S. Bankruptcy Code, or (ii) have
sought or consented to or acquiesced in the appointment of any trustee,
receiver, conservator, or liquidator, and (b) the automatic stay imposed by the
applicable provisions of the U.S. Bankruptcy Code, against the exercise of the
rights and remedies otherwise available to creditors of Borrower or such other
guarantor is deemed by the court having jurisdiction to apply to Guarantor who
is not in bankruptcy so that such Guarantor is not permitted to pay Lender the
Guaranteed Obligations and/or Lender may not immediately enforce the terms of
this Guaranty, Lender shall immediately be entitled, and Guarantor hereby
consents, to relief from such stay, and Guarantor hereby authorizes and directs
Lender to present this Guaranty to the applicable court to evidence this
agreement and consent. Guarantor hereby waives all rights it may have at law or
in equity (including, without limitation, any law subrogating Guarantor to the
rights of Lender) to seek contribution, indemnification, or any other form of
reimbursement from Borrower, any other guarantor or any other person now or
hereafter primarily or secondarily liable for any obligations of Borrower to
Lender, for any disbursement made by Guarantor under or in connection with this
Guaranty or otherwise.
8. BENEFIT. This Guaranty may be assigned or transferred in whole
or in part by Lender to any purchaser of the Note or an interest therein, and
the benefit of this Guaranty shall automatically pass with a transfer or
assignment of any portion of the Note to any subsequent owner or holder.
Guarantor agrees that this Guaranty shall inure to the benefit of and may be
enforced by Lender, its participants, successors and assigns, and all references
to Lender herein shall be deemed to include any participant, successor or assign
of Lender or any subsequent owner or holder of or participant in the Note.
9. DELEGATION. Guarantor's obligations hereunder shall not be
assigned or delegated.
10. NO ORAL CHANGE. This Guaranty may not be changed orally, and no
obligation of Guarantor can be released or waived by Lender or any subsequent
owner or holder of the Note except by a writing signed by the owner or holder of
the Note.
11. COSTS OF ENFORCEMENT. If: (a) this Guaranty or any of the Loan
Documents is placed in the hands of an attorney for collection or is collected
through any legal proceeding; (b) an attorney is retained to represent Lender in
any bankruptcy, reorganization, receivership, or other proceedings affecting
creditors' rights and involving a claim under this Guaranty or any of the Loan
Documents; (c) an attorney is retained to protect or enforce this Guaranty or
any of the Loan Documents or to provide advice or other representation with
respect hereto or to any of the Loan Documents; or (d) an attorney is retained
to represent Lender in any other proceedings whatsoever in connection with the
enforcement or protection of this Guaranty or any of the Loan Documents, then
Guarantor shall pay to Lender upon demand all reasonable attorneys' fees,
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costs and expenses, including, without limitation, court costs, filing fees,
recording costs, expenses of foreclosure, title insurance premiums, survey
costs, minutes of foreclosure, and all other costs and expenses, incurred in
connection therewith (all of which are referred to herein as "Enforcement
Costs"), in addition to all other amounts due hereunder or under any of the Loan
Documents.
12. Deleted.
13. SUCCESSORS AND ASSIGNS; GENDER. Guarantor agrees that this
Guaranty shall be binding upon and enforceable against Guarantor and its
successors and assigns. The use of any gender shall be applicable to all
genders.
14. SEVERABILITY. Should any one or more of the terms or provisions
of this Guaranty be determined to be illegal or unenforceable, at the option of
Lender, all other terms and provisions hereof nevertheless shall remain
effective and shall be enforced to the fullest extent permitted by law.
15. GOVERNING LAW, CONSENT TO JURISDICTION AND WAIVERS.
(a) Guarantor agrees that (i) this instrument and the rights and
obligations of all parties hereunder shall be governed by and construed under
the laws of the State of Maryland; (ii) the obligation evidenced by the Note is
an exempted transaction under the Truth-in-Lending Act, 15 U.S.C. Section 1601,
ET SEQ. (1982); and (iii) said obligation constitutes a business loan for the
purpose of the application of any laws that distinguish between consumer loans
and business loans and that have as their purpose the protection of consumers in
the States of Maryland and Illinois.
(b) Guarantor hereby submits to personal jurisdiction in the State
of Maryland for the enforcement of this Guaranty and waives any and all personal
rights to object to such jurisdiction for the purposes of litigation to enforce
this Guaranty. In the event such litigation is commenced at any time when
Guarantor is not permanently domiciled in the State of Maryland, Guarantor
agrees that service of process may be made and personal jurisdiction over
Guarantor obtained, by service of a copy of the summons, complaint, and other
pleadings required to commence such litigation upon an appointed Agent for
Service of Process in the State of Maryland, which Agent Guarantor hereby
designates to be:
The Corporation Trust Incorporated
300 East Lombard Street
Baltimore, Maryland 21202
Guarantor agrees that this appointment of an agent for service of process is
made for the mutual benefit of Guarantor and Lender and may not be revoked or
changed without Lender's consent, which consent shall not be unreasonably
withheld. Guarantor hereby agrees and consents that any such service of process
upon such agent shall be taken and held to be valid personal service upon
Guarantor whether or not Guarantor shall be then physically present, residing
within, or doing business within the State of Maryland, and that any such
service of process shall be of the same force and validity as if service were
made upon Guarantor when physically present, residing within, or doing business
in the State of Maryland. Guarantor waives all claim of error
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by reason of any such service. Guarantor hereby consents to the jurisdiction of
either the Circuit Court of Ann Arundel County, Maryland, or the United States
District Court for the District of Maryland, in any action, suit, or proceeding
which Lender may at any time wish to file in connection with this Guaranty or
any related matter. Guarantor hereby agrees that an action, suit, or proceeding
to enforce this Guaranty may be brought in any State or Federal Court in the
State of Maryland and hereby waives any objection which Guarantor may have to
the laying of the venue of any such action, suit, or proceeding in any such
Court; provided, however, that if jurisdiction does not lay in either of the
courts described above, the provisions of this Paragraph shall not be deemed to
preclude Lender from filing any such action, suit, or proceeding in any other
appropriate forum.
16. EVENT OF DEFAULT. Lender's right to enforce this Guaranty shall
be conditioned upon (i) Guarantor's failure to comply with any of the terms and
conditions hereunder or (ii) the occurrence of an "Event of Default" under and
as defined in the Note, the Deed of Trust and/or under any of the other Loan
Documents.
Any notice given to Borrower under the Note shall be deemed to have also
been given to Guarantor hereunder such that it shall not be necessary to give
separate notice to Guarantor. All grace periods under the Note, Deed of Trust,
Loan Documents, and/or this Guaranty shall run concurrently such that once any
grace period has expired without the curing of the default in question, Lender
shall be entitled to exercise any and all of the rights and remedies granted
under the Note, Deed of Trust, Loan Documents and this Guaranty without the
necessity of issuing any further notice or the granting of any further grace
periods.
17. NOTICES. Any notice, demand, statement or request required under
this Guaranty shall be in writing and shall be (a) hand-delivered, (b) sent by
United States express mail or by private overnight courier, or (c) served by
certified mail postage prepaid, return receipt requested, to the appropriate
address set forth above. Notices served as provided in (a) and (b) shall be
deemed to be effective upon delivery. Any notice served by certified mail shall
be deposited in the United States mail with postage thereon fully prepaid and
shall be deemed effective on the day of actual delivery as shown by the
addressee's return receipt or the expiration of three business days after the
date of mailing, whichever is earlier in time. Any of the parties may change
their address or to whom a copy should be sent by specifying such change(s) in a
written notice to all other parties, given in accordance with the provisions
hereof, such change of notice to be effective ten (10) days after receipt
thereof. Guarantor hereby requests that any notice, demand, request or other
communication (including any notice of an Event of Default and notice of sale as
may be required by law) desired to be given or required pursuant to the terms
hereof be addressed to Guarantor as follows:
Bel Air Square LLC
2901 Butterfield Road
Oakbrook, Illinois 60523
Attention: Roberta Matlin
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With a copy to:
The Inland Real Estate Group, Inc.
2901 Butterfield Road
Oakbrook, Illinois 60523
Attention: General Counsel
All notices and other communications to Lender shall be addressed as
follows:
c/o Allstate Investments, LLC
Allstate Plaza South, Suite G5C
3075 Sanders Road
Northbrook, Illinois 60062
Attention: Commercial Mortgage Division
Servicing Manager
With a copy to:
c/o Allstate Investments, LLC
Allstate Plaza South, Suite G5A
3075 Sanders Road
Northbrook, Illinois 60062
Attention: Investment Law Division
18. TERMINATION. The obligations of Guarantor hereunder shall
terminate only upon the repayment in full of the Guaranteed Obligations, subject
to the provisions of Paragraph 7 hereof, and the payment of all other sums due
Lender hereunder pursuant to Paragraph 11.
19. NONRECOURSE. Guarantor's obligations hereunder shall be subject
to Section 3.11 of the Deed of Trust.
20. WAIVER OF JURY TRIAL. IN THE EVENT OF ANY LITIGATION WITH
RESPECT TO THIS GUARANTY OR ANY OF THE LOAN DOCUMENTS OR ANY MATTER RELATING TO
THE LOAN, GUARANTOR AND, BY THE ACCEPTANCE OF THIS GUARANTY, LENDER HEREBY
COVENANT AND AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY
A JURY, AND GUARANTOR AND LENDER, BY THE ACCEPTANCE OF THIS GUARANTY, HEREBY
WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL
NOW OR HEREAFTER EXIST. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY
GIVEN, KNOWINGLY AND VOLUNTARILY, BY GUARANTOR AND LENDER, AND THIS WAIVER IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE
RIGHT TO A JURY TRIAL WOULD OTHERWISE ACCRUE. LENDER AND GUARANTOR ARE HEREBY
AUTHORIZED TO SUBMIT THIS GUARANTY TO ANY COURT HAVING JURISDICTION OVER THE
SUBJECT MATTER AND THE PARTIES HERETO, SO AS TO SERVE AS CONCLUSIVE EVIDENCE OF
THE FOREGOING WAIVER OF THE RIGHT TO JURY TRIAL.
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FURTHER, GUARANTOR AND LENDER, BY THE ACCEPTANCE OF THIS GUARANTY, HEREBY
CERTIFY THAT NEITHER OF THEM NOR ANY OF THEIR REPRESENTATIVES OR AGENTS HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, TO THE OTHER THAT IT WILL NOT SEEK TO
ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
21. HEADINGS. The headings used herein are for purposes of
convenience only and should not be used in construing provisions hereof.
22. COUNTERPARTS; TIME IS OF THE ESSENCE. This Guaranty may be
executed in any number of counterparts, each of which shall be deemed to be an
original, and all of which when taken together shall constitute one and the same
instrument. This Guaranty shall become effective when one or more counterparts,
individually or taken together, shall have been executed by all of the parties
hereto. Time is of the essence of this Guaranty and each covenant and provision
hereof.
23. ENTIRE AGREEMENT. This Guaranty constitutes the entire agreement
and supersedes all prior agreements and understanding, both written and oral,
between the parties with respect to the subject matter contained in this
Guaranty.
24. RELATED AGREEMENT. This Guaranty is one of the Related
Agreements and Loan Documents.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty
under seal as its free act and deed for the purposes herein contained as of the
day and year hereinabove first written.
BEL AIR SQUARE LLC,
a Maryland limited liability company
By: /s/ Steven P. Grimes
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Name: Steven P. Grimes
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Authorized Person
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STATE OF Illinois )
) SS.
COUNTY OF Cook )
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that [ILLEGIBLE], the Authorized Person for BEL
AIR SQUARE, LLC, a Maryland limited liability company, personally known to me to
be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person and acknowledged that as such authorized
person he/she signed and delivered the said instrument as his/her free and
voluntary act and deed and as the free and voluntary act and deed of said entity
in the capacity indicated, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 9th day of July, 2004.
(SEAL)
"OFFICIAL SEAL"
ELIZABETH ANN IRVING
NOTARY PUBLIC STATE OF ILLINOIS /s/ Elizabeth Ann Irving
My Commission Expires 11/14/2004 ---------------------------------
Notary Public
My commission expires:
11-14-2004
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