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Exhibit 10.285
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "GUARANTY") is made as of the 4th day of
August, 2004, by INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland
corporation, having an address at 2901 Butterfield Road, Oak Brook, Illinois
60523 ("GUARANTOR"), in favor of BEAR STEARNS COMMERCIAL MORTGAGE, INC., a New
York corporation, having an address at 383 Madison Avenue, New York, New York
10179 ("LENDER").
RECITALS:
A. Lender is prepared to make a loan (the "LOAN") to Inland Reisterstown
SPE I, L.L.C., a Delaware limited liability company and to Inland Reisterstown
SPE II, L.L.C., a Delaware limited liability company (collectively, the
"BORROWER"), pursuant to that certain Loan Agreement among Borrower, RRP Hecht,
LLC, a Maryland limited liability company, and Reisterstown Plaza Associates,
LLC, a Maryland limited liability company (collectively, the "GRANTOR") and
Lender of even date herewith (the "LOAN AGREEMENT"), and is evidenced by a
certain promissory note of even date herewith in the principal amount of
$49,650,000.00 made by Borrower to Lender (the "NOTE"). The Note is guarantied
by that certain Limited Guaranty Agreement of even date herewith from Grantor in
favor of Lender (the "LIMITED GUARANTY"). The Limited Guaranty is secured by,
among other things, the Mortgage (as defined in the Loan Agreement) which will
encumber the Property located in Washington County, Maryland and the other Loan
Documents (as defined in the Loan Agreement). All capitalized terms not defined
herein shall have the meaning ascribed to such terms in the Loan Agreement.
B. Grantor has requested that Lender agree that the insurance policies
obtained by Grantor as required pursuant to Section 6.1(a) of the Loan Agreement
may exclude acts of terrorism from coverage under such insurance policies.
C. Lender has agreed to the foregoing, 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.
D. 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.
Guarantor hereby unconditionally and irrevocably guarantees to Lender the
punctual payment of all sums now or hereafter payable pursuant to Section
6.1(a)(viii) of the Loan
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Agreement (the "Guaranteed Obligations"). The guaranty of Guarantor as set forth
in this Section 1 is a continuing guaranty of payment and not merely a guaranty
of collection.
2. PRIMARY LIABILITY OF GUARANTOR.
(a) This Guaranty is an absolute, irrevocable and unconditional guaranty
of payment. Guarantor shall be liable for the payment 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 and any other 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.
(b) Guarantor hereby agrees that upon the occurrence of any act of
terrorism and the determination by any applicable insurance company that its
policy does not provide coverage related to such act of terrorism, 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, 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, and without any notice
having been given to Guarantor previous to such demand of the act of terrorism
or the determination by the applicable insurance company creating such
obligation to perform, all such notices being hereby waived by Guarantor, pay to
Lender all of the Guaranteed Obligations. It shall not be necessary for Lender,
in order to enforce such payment by Guarantor, first to institute suit or pursue
or exhaust any rights or remedies against Borrower, Grantor or others liable for
such performance, or to enforce any rights against any security that shall ever
have been given to secure such Loan, or to join Borrower, Grantor 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.
(c) 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.
(a) 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) any limitation of liability or recourse in any Loan Document
or arising under any law;
(ii) any claim or defense that this Guaranty was made without
consideration or is not supported by adequate consideration;
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(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 Borrower, Grantor 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 Borrower, Grantor 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 Borrower, Grantor,
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
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against Borrower or Grantor or any security or other recourse, or of any new
agreement between Lender and Borrower or Grantor, 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 Guarantor shall be responsible for obtaining for itself
information regarding the Borrower, Grantor and the Property, including, but not
limited to, any changes in the business or financial condition of the Borrower
or Grantor or the Property, and Guarantor acknowledges and agrees that the
Lender shall have no duty to notify Guarantor of any information which the
Lender may have concerning the Borrower or Grantor.
(xi) the making of advances by Lender to protect its interest in
the Property, preserve the value of the 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 Borrower, Grantor, Lender, or any other party, whether or
not arising in connection with this Guaranty, the Note, the Limited Guaranty,
the Mortgage, or any other Loan Document;
(xiii) the unenforceability of all or any part of the Guaranteed
Obligations against Borrower or Grantor, 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 VIRES, 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 Borrower
or Grantor has any valid defense, claim or offset with respect thereto, or
because Borrower's or Grantor'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 Borrower, Grantor
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 Borrower,
Grantor 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 Borrower or
Grantor or any member or manager of Borrower or Grantor, including any
extension, reduction, composition, or other alteration of the Guaranteed
Obligations, whether or not consented to by Lender.
(b) In the event any payment by Borrower, Grantor or any other party under
Section 6.l(a)(viii) of the Loan Agreement to Lender 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 Borrower, Grantor 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
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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.
(c) If the time for payment of any amount payable by Borrower or Grantor
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, Borrower or Grantor is
now or hereafter becomes indebted to Guarantor:
(d) such indebtedness and all interest thereon and all liens, security
interests and rights now or hereafter existing with respect to property of
Borrower or Grantor 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;
(e) Guarantor shall not be entitled to enforce or receive payment,
directly or indirectly, of any such indebtedness of Borrower or Grantor to
Guarantor until the Guaranteed Obligations have been fully and finally paid and
performed;
(f) Guarantor hereby assigns and grants to Lender a security interest in
all such indebtedness and security therefor, if any, of Borrower or Grantor 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 Borrower or Grantor 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 Borrower or Grantor 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
(g) 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 Borrower or Grantor to Guarantor. All promissory
notes, accounts receivable
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ledgers or other evidences, now or hereafter held by Guarantor, of obligations
of Borrower or Grantor 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, BORROWER OR GRANTOR. If Guarantor is or
becomes liable, by endorsement or otherwise, for any indebtedness owing by
Borrower or Grantor 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 Borrower or Grantor 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 Borrower or Grantor 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 Borrower or Grantor 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.
(h) This Guaranty shall be deemed to be a contract entered into pursuant
to the laws of the State of Maryland and shall in all respects be governed,
construed, applied and enforced in accordance with the laws of the State of
Maryland.
(i) With respect to any claim or action arising hereunder, Guarantor (i)
irrevocably submits to the nonexclusive jurisdiction of the courts of the State
of Maryland and any United States District Court located in the State of
Maryland, 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,
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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 this 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 Borrower and Grantor and will derive a material and substantial
benefit, directly or indirectly, from the making of the Loan to 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
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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 Borrower or Grantor or any change
therein, and Guarantor will keep fully appraised of Borrower's and Grantor's
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 Borrower, Grantor or any other party; (j)
Guarantor shall at all times maintain a net worth equal to or exceeding
$300,000,000; 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 Borrower, Grantor,
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: Inland Western Retail Real Estate Trust, Inc.
2901 Butterfield Road
Oak Brook, Illinois 60523
Attention: Roberta Matlin
If to Lender: Bear Stearns Commercial Mortgage, Inc.
383 Madison Avenue
New York, New York 10179
Attention: Christopher Hoeffel
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.
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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. TERM OF GUARANTY. This Guaranty shall continue in effect until the
earlier of (a) all of the obligations to Lender under the Note are fully and
finally paid or defeased (even if ownership of the Property changes or ownership
and/or structure of Borrower or Grantor changes), and discharged or (b) Grantor
has provided to Lender evidence that it has obtained all of the insurance
required pursuant to Sections 6.1(a)(i) through (vii) of the Loan Agreement, and
that none of the required policies contain any exclusion from coverage for acts
of terrorism, which evidence is satisfactory to Lender in its reasonable
discretion. Upon termination of this Guaranty in accordance with its terms,
Lender will, upon Grantor's request and at Grantor's expense, execute an
instrument evidencing such termination.
17. FINANCIAL CONDITION OF GUARANTOR. As used in this Section, "Financial
Statements" means, in accordance with the requirements of this Section a balance
sheet, income statement, statements of cash flow and amount and sources of
contingent liabilities, a reconciliation of changes in equity and liquidity
verification, and, unless Lender otherwise consents, consolidated and
consolidating statements if the reporting party is a holding company or a parent
of a subsidiary entity. In this Section, each party for whom Financial
Statements are required is a "reporting party" and a specified period to which
the required Financial Statements relate is a "reporting period". Guarantor
shall provide or cause to be provided to Lender, the following:
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(j) Consolidated and annotated financial statements of Guarantor, audited
by a "Big Five" accounting firm or other independent certified public accountant
acceptable to Lender, as soon as practicable, but in any event within ninety
(90) days after the close of each fiscal year, which financial statements shall
satisfy the requirements set forth in Section 5.1.11(b) of the Loan Agreement.
(k) Intentionally deleted.
(1) Unaudited financial statements of Guarantor within forty-five (45)
days after the end of each calendar quarter.
(m) From time to time promptly after Lender's request, such additional
information, reports and statements regarding the business operations and
financial condition of each reporting party as Lender may reasonably request.
All Financial Statements shall be in form and detail reasonably satisfactory to
Lender and shall contain or be attached to the signed and dated written
certification of the reporting party in form specified by Lender to certify that
the Financial Statements are furnished to Lender in connection with the
extension of credit by Lender and constitute a true and correct statement of the
reporting party's financial position. All certifications and signatures on
behalf of corporations, partnerships or other entities shall be by a
representative of the entity satisfactory to Lender. All fiscal year-end
Financial Statements of Guarantor shall be audited, without any qualification or
exception not acceptable to Lender, by independent certified public accountants
acceptable to Lender, and shall contain all reports and disclosures required by
generally accepted accounting principles for a fair presentation.
Guarantor acknowledges that acceptance of any Financial Statement by Lender,
whether or not in the form prescribed herein, shall be relied upon by Lender in
the administration and enforcement of the Guaranteed Obligations.
18. TRANSFER OF LOAN.
(n) Lender may, at any time, sell, transfer or assign the Note, the
Limited Guaranty, 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 Indemnitor 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.
(o) Upon any transfer or proposed transfer contemplated above and by the
Loan Agreement or the Mortgage, at Lender's request, Guarantor shall provide an
estoppel certificate
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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 Section 101 of the United States
Bankruptcy Code) with respect to Borrower or Grantor, then the Guarantor hereby
irrevocably and absolutely waives any and all rights of contribution,
indemnification, reimbursement or any similar rights against Borrower or Grantor
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 Section
101 of the United States Bankruptcy Code) of Borrower or Grantor by reason of
the existence of this Guaranty in the event that Borrower, Grantor 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 to Borrower as
evidenced by the Note.
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
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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 LIMITED GUARANTY, THE MORTGAGE 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 ITS EFFECT. GUARANTOR FURTHER REPRESENTS AND WARRANTS THAT IT HAS
BEEN REPRESENTED IN THE SIGNING
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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.
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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 RETAIL REAL ESTATE
TRUST, INC., a Maryland corporation
By: /s/ Debra A. Palmer
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Name: Debra A. Palmer
Assistant Secretary