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Exhibit 10.359
GUARANTY
LOAN NO. 754065
THIS GUARANTY (as the same may from time to time hereafter be modified,
supplemented or amended, the "GUARANTY") is made as of September 2, 2004 by
INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation, having an
office at 2901 Butterfield Road, Oak Brook, Illinois 60523 ("GUARANTOR"), in
favor of PRINCIPAL LIFE INSURANCE COMPANY, an Iowa corporation, having a
principal place of business and post office address at c/o Principal Real Estate
Investors, LLC, 801 Grand Avenue, Des Moines, Iowa 50392-1450 ("LENDER").
RECITALS:
Lender has agreed to make a loan (the "LOAN") in the original principal sum
of Eighteen Million Seven Hundred Thousand and No/100 Dollars ($18,700,000.00)
(the "LOAN AMOUNT") to INLAND WESTERN NEW PORT RICHEY MITCHELL, L.L.C., a
Delaware limited liability company ("Borrower"); and
The Loan is evidenced by Borrower's secured promissory note made payable
and delivered to Lender (as the same may from time to time hereafter be
modified, amended, supplemented, extended or consolidated in writing, and any
note(s) issued in exchange therefor or replacement thereof, the "NOTE") and
further evidenced and secured by a "MORTGAGE" (it being agreed that "Mortgage"
as hereinafter used shall be construed to mean "mortgage" or "deed of trust" or
"trust deed" or "deed to secure debt" as the context so requires) on certain
real estate located in Pasco County, Florida, together with all existing
improvements constructed thereon, said Premises being more particularly
described in said Mortgage, and an Assignment of Leases ("ASSIGNMENT OF
LEASES"); and
In connection with the Loan, the Borrower has also executed that certain
Environmental Indemnity ("ENVIRONMENTAL INDEMNITY") for the benefit of Lender
(the Note, Environmental Indemnity, Mortgage and Assignment of Leases and all
other instruments or agreements by which the Loan is evidenced or secured are
hereinafter collectively referred to as the "UNDERLYING INSTRUMENTS"); and
It is a condition of Lender's agreement to make the Loan that Guarantor be
unconditionally liable for and personally guarantee the payment and performance
of certain liabilities and obligations of the Borrower under the Underlying
Instruments upon the terms and conditions as are hereinafter set forth; and
WHEREAS, Guarantor is financially interested in Borrower and is materially
benefited by the consummation of the Loan and has agreed to unconditionally and
personally guarantee the payment and performance of certain liabilities and
obligations of Borrower under the Underlying Instruments upon the terms and
conditions as are hereinafter set forth.
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NOW, THEREFORE, in order to induce Lender to make the Loan to Borrower,
Guarantor intending to be legally bound, hereby makes the following
representations and warranties to the Lender and hereby covenants and agrees
with the Lender as follows:
1. Guarantor absolutely, irrevocably and unconditionally guarantees to the
Lender payment and the full, faithful and timely performance of any and all
liabilities and obligations of Borrower whether now existing or hereafter
incurred under the Environmental Indemnity and Paragraph 9 of the Note but
excluding, specifically subparagraphs 9(d) through 9(j) thereof (all of
which payments, liabilities and obligations are hereinafter collectively
referred to as the "Guaranteed Obligations").
2. Guarantor absolutely, irrevocably and unconditionally waives notice of
acceptance of this Guaranty and notice of any payment, liability or
obligation to which it may apply, and waives presentment, demand of
payment, protest, notice of dishonor or nonpayment of such liabilities
under this Guaranty or any of the Underlying Instruments creating the
Guaranteed Obligations and any suit or taking other action by the Lender
against, and any other notice to, any party liable thereon or any property
which may be security therefor.
3. The Lender may at any time and from time to time without the consent of, or
notice to, Guarantor, without incurring any responsibility to Guarantor and
without impairing or releasing any of the obligations of Guarantor
hereunder, upon or without any terms or conditions and in whole or in part:
(a) renew, alter or change the interest rate, manner, time, place or terms
of payment or performance of any of the Guaranteed Obligations, or any
liability incurred directly or indirectly in respect thereof,
whereupon the guaranty herein made shall apply to the Guaranteed
Obligations as so changed, extended, renewed or altered;
(b) sell, exchange, release, surrender, and in any manner and in any order
realize upon or otherwise deal with any property at any time directly
and absolutely assigned or pledged or mortgaged to secure the
Guaranteed Obligations or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof;
(c) exercise or refrain from exercising any rights against Borrower or any
other person (including Guarantor) or otherwise act or refrain from
acting with regard to the Underlying Instruments, Guaranteed
Obligations or this Guaranty;
(d) settle or compromise any of the Guaranteed Obligations, any security
therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or
subordinate the payment of all or any part thereof to the payment of
any liability of Borrower (whether or not then due) to creditors of
Borrower other than the Lender and Guarantor;
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(e) apply any sums in whatever manner paid or realized to any liability or
liabilities of Borrower to the Lender regardless of what liability or
liabilities of Borrower remain unpaid;
(f) consent to or waive any breach of or any act, omission or default
under the Underlying Instruments or otherwise amend, modify or
supplement any of such instruments or agreements; and/or
(g) sell, convey or assign, whether into a securitized transaction or
otherwise, all or any part of Lender's interest in this Guaranty and
the Underlying Instruments.
4. (a) No invalidity, irregularity or unenforceability of all or any part of
the Underlying Instruments, the Guaranteed Obligations or this
Guaranty, or of any security therefor, shall affect, impair or
constitute a defense to this Guaranty. This Guaranty is a direct and
primary obligation of Guarantor, and Guarantor's obligations hereunder
are not as a surety. This is a guaranty of payment and performance,
and not merely a guaranty of collection.
(b) Guarantor acknowledges and agrees that this Guaranty and Guarantor's
obligations with respect to payments and performance under the
Environmental Indemnity shall remain in full force and effect,
notwithstanding the fact that the Note and payments due under the
other Underlying Instruments have been paid in full.
5. (a) Notwithstanding any payment or payments made by Guarantor hereunder,
Guarantor will not assert or exercise any right of the Lender or of
such Guarantor against Borrower to recover the amount of any payment
made by such Guarantor to the Lender by way of subrogation,
reimbursement, contribution, indemnity or otherwise arising by
contract or operation of law, and Guarantor shall not have any right
of recourse to or any claim against assets or property of Borrower,
whether or not the obligations of Borrower have been satisfied, all of
such rights being herein expressly waived by Guarantor. The provisions
of this paragraph shall survive the termination of this Guaranty, and
any satisfaction and discharge of Borrower by virtue of any payment,
court order or any applicable law.
(b) Notwithstanding the provisions of Section 5(a), Guarantor shall have
and be entitled to all rights of subrogation otherwise provided by
applicable law in respect of any payment Guarantor may make or be
obligated to make under this Guaranty, and to assert and enforce the
same, in each case on and after, but at no time prior to, the date
(the "SUBROGATION TRIGGER DATE") which is 91 days after the date on
which all obligations under the Underlying Instruments shall have been
paid or performed in full, if and only if the existence of Guarantor's
rights under this Section 5(b) would not make Guarantor a creditor (as
defined in the
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Bankruptcy Reform Act of 1978, an amended, 11 U.S.C. Sections 101 et
seq., and the regulations adopted and promulgated pursuant thereto) of
Borrower in any insolvency bankruptcy, reorganization or similar
proceeding commenced on or prior to the Subrogation Trigger Date.
(c) In the event that Guarantor shall advance or become obligated to pay
any sums with respect to any obligation hereby guaranteed or in the
event that for any reason whatsoever the Borrower or any subsequent
owner of the collateral securing the Loan is now, or shall hereafter
become, indebted to Guarantor, Guarantor agrees that the amount of
such sums and of such Indebtedness together with all interest thereon,
shall at all times be subordinate as to the lien, time of payment and
in all other respects, to all sums, including principal, interest and
other Indebtedness, at any time owing to the Lender under any of the
Underlying Instruments. Nothing herein contained is intended or shall
be construed to give to Guarantor any right to participate in any way
in the right, title or interest of the Lender in or to the collateral
securing the Loan, notwithstanding any payments made by Guarantor
under this Guaranty, all such rights of participation being hereby
expressly waived and released.
6. Guarantor agrees that to the extent that Borrower makes a payment or
payments to Lender, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set
aside or required, for any of the foregoing reasons or for any other
reasons, to be repaid or paid over to a custodian, trustee, receiver or any
other party under any bankruptcy act, state or federal law, common law or
equitable cause, then to the extent of such payment or repayment, the
obligation or part thereof intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made.
7. Guarantor makes the following representations and warranties which shall
survive the execution and delivery of this Guaranty:
(a) Guarantor is and, until the Indebtedness is paid in full, will
continue to (i) be a duly organized and validly existing entity in
good standing under the laws of the state of its formation, (ii) be
duly qualified as a foreign entity in each jurisdiction in which the
nature of its business makes such qualification necessary or
desirable, (iii) have the requisite power and authority to carry on
its business as now being conducted, (iv) have the requisite power to
execute, deliver and perform its obligations under this Guaranty, and
(v) comply with the provisions of all of its organizational documents,
and the Legal Requirements of the state of its formation.
(b) The execution, delivery and performance of this Guaranty (i) are
within the applicable powers of Guarantor; (ii) have been authorized
by all requisite action; (iii) have received all necessary approvals
and consents, corporate, governmental
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or otherwise; (iv) does not and will not violate, conflict with,
result in a breach of or constitute (with notice or lapse of time, or
both) a default under any provision of law, any order or judgment of
any court or governmental authority, the articles of incorporation,
by-laws, partnership, operating or trust agreement, or other governing
instrument of Guarantor, or any indenture, agreement or other
instrument to which Guarantor is a party or by which Guarantor or any
of Guarantor's assets is or may be bound or affected; (v) does not and
will not result in the creation or imposition of any lien, charge or
encumbrance whatsoever upon any of Guarantor's assets; and (vi) does
not and will not require any authorization or license from, or any
filing with, any governmental authority or other body.
(c) This Guaranty constitutes the legal, valid and binding obligations of
Guarantor, enforceable against Guarantor in accordance with its terms,
except as may be limited by (i) bankruptcy, insolvency, reorganization
or other similar laws affecting the rights of creditors generally, and
(ii) general principles of equity (regardless of whether considered in
a proceeding in equity or at law).
8. Guarantor and Borrower are separate and distinct entities with no identity
of interest with respect to any Indebtedness which may become owed or any
payments which may be made hereunder. Borrower is not contractually bound
to Guarantor with respect to any payments hereafter made under this
Guaranty in any manner which would have the effect of imputing the
liability of Guarantor hereunder to Borrower.
9. Guarantor is related and/or affiliated with Borrower, has personal
knowledge of and is familiar with Borrower's business affairs, books and
records and has the ability to influence Borrower's financial decisions.
Guarantor represents that Borrower is in sound financial condition as of
the date of this Guaranty.
10. Nothing herein contained shall in any manner affect the lien or priority of
the Mortgage, and upon the occurrence of an Event of a Default, the Lender
may invoke any remedies it may have under the Underlying Instruments, or
this Guaranty, either concurrently or successively and the exercise of any
one or more of such remedies shall not be deemed an exhaustion of such
remedy or remedies or a waiver of any other remedy or remedies and shall
not be deemed an election of remedies. Guarantor hereby specifically waives
any defense to its performance under this Guaranty based upon an election
of remedies by Lender, including but not limited to an election to
foreclose by nonjudicial sale under any deed of trust, or security
agreement and pursue any other remedy which destroys, lessens or otherwise
affects Guarantor's subrogation rights and/or its rights to reimbursement
from or to proceed against Borrower or any other person, when resulting
from the judicial or nonjudicial foreclosure (under any deed of trust, or
security agreement) or the selling or otherwise disposing of or collecting
or applying any property, real or personal, securing the Note, or
otherwise. The exercise by the Lender of any such remedies shall not
release or discharge Guarantor from its obligations hereunder unless and
until the full amount of the Indebtedness evidenced by the Note and secured
as aforesaid has been fully paid and
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satisfied, and any such release or discharge shall be subject to the
provisions of paragraph 4(b) hereof.
11. This Guaranty shall remain in full force and effect until all obligations
of the Borrower under the Underlying Instruments have been satisfied in
full and are no longer subject to disgorgement under any applicable state
or federal creditor rights or bankruptcy laws. No delay on the part of the
Lender in exercising any options, powers or rights, or the partial or
single exercise thereof, shall constitute a waiver thereof. No waiver of
any rights hereunder, and no modification or amendment of this Guaranty,
shall be deemed to be made by the Lender unless the same shall be in
writing, duly signed on behalf of the Lender, and each such waiver (if any)
shall apply only with respect to the specific instance involved and shall
in no way impair the rights of the Lender or the obligations of Guarantor
to the Lender in any other respect at any other time. This Guaranty and the
rights and obligations of the Lender and of Guarantor hereunder shall be
governed and construed in accordance with the laws of the state of Florida,
without regard to its conflicts of law principles and this Guaranty is
binding upon Guarantor, Guarantor's heirs, personal representatives and
permitted successors or assigns, and shall inure to the benefit of the
Lender and its successors or assigns.
12. Guarantor acknowledges that copies of the Underlying Instruments have been
made available to Guarantor and that Guarantor is familiar with their
contents. Guarantor affirmatively agrees that upon any Permitted Transfer
effected in accordance with the provisions of the Underlying Instruments,
it shall not be necessary for Guarantor to reaffirm its continuing
obligations under this Guaranty, but Guarantor will do so upon request by
Lender; provided, however, in the event a Permitted Transfer under items
(ii) or (vi) of the Permitted Transfers occurs in compliance with the terms
and conditions stated in the Mortgage, then Borrower may provide a
substitute guarantor, acceptable to Lender in Lender's sole discretion, to
assume the obligations of Guarantor under terms and conditions acceptable
to Lender. Lender's approval of the substitute guarantor shall be deemed
granted so long as such substitute guarantor is a Qualified Successor.
13. AFTER CONSULTING WITH COUNSEL AND CAREFUL CONSIDERATION, GUARANTOR AND
LENDER (BY ITS ACCEPTANCE HEREOF) KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY
WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO
ANY LITIGATION ARISING OUT OF THIS GUARANTY OR ANY OTHER INSTRUMENT OR
AGREEMENT BY WHICH THIS GUARANTY IS, OR MAY HEREAFTER BE, SECURED, OR OUT
OF ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (ORAL OR WRITTEN),
OR ACTIONS OF GUARANTOR OR LENDER. THIS WAIVER IS A MATERIAL INDUCEMENT TO
THE LENDER'S ACCEPTANCE OF THIS GUARANTY.
14. Each notice, consent, request or other communication under this Guaranty
(each a "Notice") which any party hereto may desire or be required to give
to the other shall be
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deemed to be adequate and sufficient notice if given in writing and service
is made by either (i) registered or certified mail, postage prepaid, in
which case such notice shall be deemed to have been received three (3)
business days following deposit to U.S. mail; or (ii) nationally recognized
overnight air courier, next day delivery, prepaid, in which case such
notice shall be deemed to have been received one (1) business day following
delivery to such nationally recognized overnight air courier. All Notices
shall be addressed to Guarantor at its address given on the first page
hereof, or to Lender at c/o Principal Real Estate Investors, LLC, 801 Grand
Avenue, Des Moines, Iowa 50392-1450, Attn: Commercial Real Estate
Servicing, Loan No. 754065, or to such other place as any party may by
notice in writing to the other parties designate as a place for service of
notice.
15. Each Guarantor (if more than one) whose signature appears below shall be
deemed to be bound by the provisions of this Guaranty and the Guaranteed
Obligations, whether each signature was affixed at the same or different
times, and the term "Guarantor" as used herein shall be deemed to refer to
each individually, as well as collectively, and each of the undersigned
shall be jointly and severally liable for the Guaranteed Obligations
hereunder, both personally and with recourse, irrespective of the recourse
or non-recourse nature of the Underlying Instruments. Guarantor agrees that
if this Guaranty is placed in the hands of an attorney for enforcement,
Guarantor will reimburse Lender all expenses incurred, including attorney's
fees.
16. This Guaranty may be executed in counterparts, each of which shall be
deemed an original; and such counterparts when taken together shall
constitute but one agreement.
17. Capitalized terms used herein and not otherwise defined shall have the
meanings given to them in the Underlying Instruments.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly executed
and delivered as of the date first set forth above.
(REMAINDER OF PAGE INTENTIONALLY BLANK
SIGNATURES ON NEXT PAGE)
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SIGNATURE PAGE OF GUARANTOR
TO GUARANTY
42-1579325
(Guarantor's Identification Number)
INLAND WESTERN RETAIL REAL ESTATE
TRUST, INC., a Maryland corporation
By: \s\ Debra A Palmer
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Name: Debra A Palmer
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Title: Asst Secretary
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