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Exhibit 10.246
Loan No. 6518403
GUARANTY AGREEMENT
THIS
GUARANTY AGREEMENT ("GUARANTY"), dated as of June 28, 2004 by
INLAND
WESTERN DULUTH JOHN'S CREEK SPE, L.L.C., a
Delaware limited liability company
("GUARANTOR"), in favor of JOHN HANCOCK
LIFE INSURANCE COMPANY, a Massachusetts
corporation ("LENDER"), and the subsequent
owners and holders of the herein
below defined Note.
RECITALS:
A.
Inland
Western Duluth John's Creek SPE, L.L.C., a Delaware limited
liability company ("BORROWER") has
requested a loan (the "LOAN") from Lender in
the amount of $23,300,000.00 (the "LOAN
AMOUNT") to be evidenced by the Mortgage
Note of even date herewith executed by
Borrower, payable to Lender in the Loan
Amount (the "NOTE"), and secured by, INTER
ALIA, that certain Mortgage,
Assignment of Leases and Rents and Security
Agreement dated of even date
herewith (the "MORTGAGE") executed by
Borrower in favor of Lender covering
certain property more particularly
described in the Mortgage;
B.
Section 19
of the Note sets forth certain amounts, obligations and
other liabilities for which Borrower is
fully liable to Lender (the
"NON-RECOURSE CARVEOUT OBLIGATIONS"),
notwithstanding limitations on Borrower's
liability pursuant to said Section 19 of
the Note; and
C.
As a
condition to making the Loan, Lender has required that
Borrower as Guarantor expressly and
explicitly and separately guarantee the
payment of the Non-Recourse Carveout
Obligations and performance of the
obligations set forth in Section 1 below
(the "GUARANTEED OBLIGATIONS").
AGREEMENT:
NOW,
THEREFORE, as a material inducement to Lender to agree to make
the
Loan to Borrower, and for other good and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, Guarantor hereby does irrevocably
and unconditionally warrant and represent
unto and covenant with Lender as
follows:
1.
GUARANTY.
Guarantor hereby (a) guarantees unto Lender the full
and timely payment of the amounts due, or
to become due, to Lender under the
Non-Recourse Carveout Obligations and (b)
agrees with Lender to pay to Lender
(i) the amounts due under the Non-Recourse
Carveout Obligations within five (5)
days from the date Lender notifies
Guarantor of Borrower's failure to pay the
same, if and when the same becomes due, and
at the place specified in the Note
for payment and (ii) Lender's reasonable
attorneys' fees and all court costs
incurred by Lender in enforcing or
protecting any of Lender's rights, remedies
or recourses hereunder. Guarantor is not
hereby guaranteeing payment of any
portion of the indebtedness or performance
of any portion of the obligations
under the documents evidencing, securing,
guaranteeing or executed in connection
with the Loan (the "LOAN DOCUMENTS"), other
than the Non-Recourse Carveout
Obligations.
2.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor hereby
warrants and represents unto Lender as
follows:
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Loan No. 6518403
(a) that this Guaranty
constitutes the legal, valid and binding
obligation of Guarantor and is fully
enforceable against Guarantor in accordance
with its terms;
(b) Guarantor is
solvent and the execution of this Guaranty does
not render Guarantor insolvent. Any and all
financial statements, balance
sheets, net worth statements and other
financial data which have heretofore been
furnished to Lender with respect to
Guarantor fairly and accurately present the
financial condition of Guarantor as of the
date they were furnished to Lender
and, since that date, there has been no
material adverse change in the financial
condition of Guarantor;
(c) that there are no
legal proceedings or material claims or
demands pending against or, to the best of
Guarantor's knowledge threatened
against, Guarantor or any of its
assets;
(d) that the execution
and delivery of this Guaranty and the
assumption of liability hereunder have been
in all respects authorized and
approved by Guarantor; Guarantor has full
authority and power to execute this
Guaranty and to perform its obligations
hereunder; and
(e) that neither the
execution nor the delivery of this Guaranty
nor the fulfillment and compliance with the
provisions hereof will conflict
with, result in a breach of, constitute a
default under or result in the
creation of any lien, charge, or
encumbrance upon any property or assets of
Guarantor under any agreement or instrument
to which Guarantor is now a party or
by which it may be bound.
3.
WAIVER.
Guarantor hereby waives (a) for itself as Guarantor but not
for itself in its capacity as Borrower all
notices of acceptance hereof,
protest, demand and dishonor, presentment,
notice of nonpayment, notice of
intention to accelerate maturity, notice of
acceleration of maturity and all
notices and demands of any kind now or
hereafter provided for by any statute or
rule of law other than the five (5) day
notice referred to in PARAGRAPH 1 above,
(b) any and all requirements that Lender
institute any action or proceeding, or
exhaust or attempt to enforce any or all of
Lender's right, remedies or
recourses against Borrower or anyone else
or in respect of any mortgaged
property or collateral covered by any Loan
Documents, or join Borrower or any
other persons liable on the Non-Recourse
Carveout Obligations in any action to
enforce this Guaranty as a condition
precedent to bringing an action against
Guarantor upon this Guaranty, it being
expressly agreed that the liability of
Guarantor hereunder shall be primary and
not secondary, (c) any defense arising
by reason of any disability, insolvency,
lack of authority or power, death,
insanity, minority, dissolution or any
other defense of Borrower, or any other
surety, co-maker, endorser or guarantor of
the Non-Recourse Carveout Obligations
(even though rendering same void,
unenforceable or otherwise uncollectible), it
being agreed that Guarantor shall remain
liable hereon regardless of whether
Borrower or any other such person be found
not liable thereon for any reason,
(d) all suretyship defenses of every kind
and nature and (e) any claim Guarantor
might otherwise have against Lender by
virtue of Lender's invocation of any
right, remedy or recourse permitted it
hereunder or under the Loan Documents.
This is a guaranty of payment and not a
guaranty of collection.
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4.
SUBSEQUENT
ACTS. Guarantor hereby agrees with Lender that (a) the
payments called for and provisions
contained in the Loan Documents, including
specifically (but without limitation) the
Note, may be renewed, extended,
rearranged, modified, released or canceled,
(b) all or any part of any mortgaged
property and collateral for the
indebtedness may be released from, and any new
o
