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CONTINUING UNCONDITIONAL
GUARANTY
This CONTINUING
UNCONDITIONAL GUARANTY dated as of
_______________, 2008 (the " Guaranty "), is executed by
SUN COMMUNITIES OPERATING LIMITED
PARTNERSHIP , a limited partnership,
whose address is 27777 Franklin Road, Suite 200, Southfield,
Michigan 48034 (the “ Guarantor ”), to and for the
benefit of LASALLE BANK MIDWEST NATIONAL
ASSOCIATION , a national banking
association, whose address is 2600 West Big Beaver Road, Troy,
Michigan 48084 (the “ Bank ”).
R E C I T A L S :
A. The Bank has
agreed to extend a mortgage loan (the “ Loan ”) to
APPLE ORCHARD, L.L.C. ,
a Michigan limited liability company; SUN
LAKEVIEW LLC , a Michigan limited
liability company; and SUN TAMPA EAST,
LLC , a Michigan limited liability
company (collectively, the “ Borrower ”), in the principal
amount of Twenty Seven Million and 00/100 Dollars ($27,000,000.00)
(the “ Loan Amount
”), pursuant to a Loan Agreement between the
Borrower and the Bank of approximately even date herewith (the
“ Loan Agreement
”), evidenced by a promissory note from the
Borrower to the Bank, dated of even date with the Loan Agreement,
in an aggregate principal amount equal to the Loan Amount (as
amended, restated or replaced from time to time, the "
Note ").
B.
As a condition to the Bank’s loaning funds or
providing other financial accommodations to the Borrower, the Bank
requires that the Guarantor execute and deliver this Guaranty in
order to support the obligations and performance of the Borrower
under such loans or financial accommodations.
C.
The Guarantor is financially interested in the
Borrower and desires the Bank to extend or continue the extension
of credit to the Borrower, which is necessary and desirable to the
conduct and operation of the business of the Borrower and will
inure to the financial benefit of the Guarantor.
NOW, THEREFORE, FOR VALUE RECEIVED, it is agreed
that the preceding provisions and recitals are an integral part
hereof and that this Guaranty shall be construed in light thereof,
and in consideration of advances, credit or other financial
accommodation heretofore afforded, concurrently herewith being
afforded or hereafter to be afforded to the Borrower by the Bank,
the Guarantor hereby unconditionally and absolutely guarantees to
the Bank or other person paying or incurring the same, irrespective
of the validity, regularity or enforceability of any instrument,
writing, arrangement or credit agreement relating to or the subject
of any such financial accommodation, the prompt payment in full of:
(a) the Indebtedness (as hereinafter defined),
plus (b) all costs,
legal expenses and attorneys' and paralegals' fees of every kind
(including those costs, expenses and fees of attorneys and
paralegals who may be employees of the Agent, its parent or
affiliates), paid or incurred by the Agent in endeavoring to
collect all or any part of the Indebtedness, or in enforcing its
rights in connection with any collateral therefor, or in enforcing
this Guaranty, or in defending against any defense, counterclaim,
setoff or crossclaim based on any act of commission or omission by
the Bank with respect to the Indebtedness, any collateral therefor,
or in connection with any Repayment Claim (as hereinafter defined)
(collectively, the “Guaranteed Debt”). In addition, the
Guarantor hereby unconditionally and absolutely guarantees to the
Bank the prompt, full and faithful performance and discharge by the
Borrower of each of the terms, conditions, agreements,
representations and warranties on the part of the Borrower
contained in any agreement, or in any modification or addenda
thereto or substitution thereof in connection with any of the
Indebtedness.
1
As used herein, "Indebtedness" shall mean and
include any and all indebtedness, obligations and liabilities of
the Borrower to the Bank arising: (a) under and pursuant to the
Loan Agreement, the Note or the other Loan Documents (as defined in
the Loan Agreement), including any and all new or renewal notes
issued in substitution or replacement therefor or any and all
extensions, renewals or replacements thereof, and (b) under any
interest rate, currency or commodity swap agreement(s), cap
agreement(s) or collar agreement(s), and any other agreement(s) or
arrangement(s) designed to protect the Borrower against
fluctuations in interest rates, currency exchange rates or
commodity prices entered into in connection with the loan evidenced
by the Notes.
Upon an event of default under the Guaranteed Debt,
after the expiration of any applicable notice and cure periods, all
of the Guaranteed Debt shall, without notice to anyone, immediately
become due and all amounts due hereunder shall be payable by the
Guarantor. The Guarantor hereby expressly and irrevocably: (a)
waives, to the fullest extent possible, on behalf of itself and its
successors and assigns (including any surety) and any other person,
any and all rights at law or in equity to subrogation,
reimbursement, exoneration, contribution, indemnification, set off
or to any other rights that could accrue to a guarantor or to the
holder of a claim against any person, and which the Guarantor may
have or hereafter acquire against any person in connection with or
as a result of the Guarantor's execution, delivery and/or
performance of this Guaranty, or any other documents to which the
Guarantor is a party or otherwise; (b) waives any "claim" (as such
term is defined in the United States Bankruptcy Code) of any kind
against the Borrower, and further agrees that it shall not have or
assert any such rights against any person (including any surety),
either directly or as an attempted set off to any action commenced
against the Guarantor by the Bank or any other person; and (c)
acknowledges and agrees (i) the foregoing waivers are intended to
benefit the Bank and shall not limit or otherwise affect the
Guarantor's liability hereunder or the enforceability of this
Guaranty, (ii) the Borrower and its successors and assigns are
intended third party beneficiaries of the foregoing waivers, and
(iii) the agreements set forth in this paragraph and the Bank's
rights under this paragraph shall survive payment in full of the
Guaranteed Debt.
All dividends or other payments received by the Bank
on account of the Guaranteed Debt, from whatever source derived,
shall be taken and applied by the Bank toward the payment of the
Guaranteed Debt and in such order of application as the Bank may,
in its sole discretion, from time to time elect. The Bank shall
have the exclusive right to determine how, when and what
application of payments and credits, if any, whether derived from
the Borrower or any other source, shall be made on the Guaranteed
Debt and such determination shall be conclusive upon the
Guarantor.
This Guaranty shall in all respects be continuing,
absolute and unconditional, and shall remain in full force and
effect with respect to the Guarantor until: (i) written notice from
the Bank to the Guarantor by United States certified mail of its
discontinuance as to the Guarantor; or (ii) until all Guaranteed
Debt created or existing before receipt of either such notice shall
have been fully paid. If there is more than one Guarantor party
hereto and this Guaranty is discontinued as to any Guarantor, this
Guaranty shall nevertheless continue and remain in force against
any other guarantor until discontinued as to all other Guarantors.
In the event of the death, incompetency or dissolution of the
Guarantor, this Guaranty shall continue as to all of the Guaranteed
Debt theretofore incurred by the Borrower even though the
Guaranteed Debt is renewed or the time of maturity of the
Guaranteed Debt is extended without the consent of the successors
or assigns of the Guarantor.
No compromise, settlement, release or discharge of,
or indulgence with respect to, or failure, neglect or omission to
enforce or exercise any right against any other guarantor shall
release or discharge the Guarantor.
2
The Guarantor's liability under this Guaranty shall
in no way be modified, affected, impaired, reduced, released or
discharged by any of the following (any or all of which may be done
or omitted by the Bank in its sole discretion, without notice to
anyone and irrespective of whether the Guaranteed Debt shall be
increased or decreased thereby): (a) any acceptance by the Bank of
any new or renewal note or notes of the Borrower, or of any
security or collateral for, or other guarantors or obligors upon,
any of the Guaranteed Debt; (b) any compromise, settlement,
surrender, release, discharge, renewal, refinancing, extension,
alteration, exchange, sale, pledge or election with respect to the
Guaranteed Debt, or any note by the Borrower, or with respect to
any collateral und
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