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GUARANTY AGREEMENT REGARDING CROSS-COLLATERALIZATION

Guarantee Agreement

GUARANTY AGREEMENT REGARDING CROSS-COLLATERALIZATION | Document Parties: INLAND WESTERN KILL  DEVIL HILLS CROATAN, L.L.C.,  | BEAR STEARNS COMMERCIAL MORTGAGE, INC You are currently viewing:
This Guarantee Agreement involves

INLAND WESTERN KILL DEVIL HILLS CROATAN, L.L.C., | BEAR STEARNS COMMERCIAL MORTGAGE, INC

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Title: GUARANTY AGREEMENT REGARDING CROSS-COLLATERALIZATION
Governing Law: New York     Date: 9/8/2004

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                                                                  Exhibit 10.236

 

              GUARANTY AGREEMENT REGARDING CROSS-COLLATERALIZATION

 

     THIS GUARANTY AGREEMENT REGARDING CROSS-COLLATERALIZATION (this

"GUARANTY") is made as of the 21st day of July, 2004, by INLAND WESTERN KILL

DEVIL HILLS CROATAN, L.L.C., a Delaware limited liability company, 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.     Pursuant to that certain Loan Agreement dated as of the date hereof

by and among Guarantor, Inland Western Crossville Main, L.L.C., a Delaware

limited liability company ("CROSSVILLE MAIN"), Inland Western Columbia Broad

River, L.L.C., a Delaware limited liability company ("BROAD RIVER"), Inland

Western Greer Wade Hampton, L.L.C., a Delaware limited liability company ("WADE

HAMPTON"; Crossville Main, Broad River and Wade Hampton are collectively

referred to herein as "OTHER BORROWER"), and Lender (as the same may be amended,

restated, replaced, supplemented or otherwise modified from time to time, the

"LOAN AGREEMENT"), Guarantor has agreed to borrow from Lender the sum of ONE

MILLION NINE HUNDRED SEVENTY FIVE THOUSAND AND NO/100 DOLLARS ($1,975,000.00)

(the "LOAN") as evidenced by that certain Promissory Note dated the date hereof

made by Guarantor to Lender (such Note, together with all extensions, renewals,

replacements, restatements or modifications thereof being hereinafter referred

to as the "NOTE"). All capitalized terms not defined herein shall have the same

meaning ascribed to such terms in the Loan agreement.

 

     B.     The aggregate principal amount set forth in the Loan Agreement and

evidenced by the Note, the Inland Crossville Main Note (as defined in the Loan

Agreement), the Inland Broad River Note (as defined in the Loan Agreement) and

the Inland Wade Hampton Note (as defined in the Loan Agreement) is SIX MILLION

EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS ($6,800,000.00) (the "ENTIRE LOAN").

The Inland Crossville Main Note, the Inland Columbia Broad River Note and the

Inland Greer Wade Hampton Note are hereinafter referred to as the "OTHER NOTE".

 

     C.     The Note is secured by that certain Deed of Trust, Assignment of

Leases and Rents, Security Agreement and Fixture Filing of even date herewith

given by Guarantor to (or for the benefit of) Lender covering the Property (as

defined therein) and intended to be duly recorded (the "MORTGAGE"). The Other

Note is secured by that certain mortgage, deed of trust, deed to secure debt or

similar instrument, as applicable, of even date herewith, given by the Other

Borrower to (or for the benefit of) Lender (hereinafter referred to as the

"OTHER MORTGAGE").

 

     D.     Lender has agreed to make the Entire Loan, 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.

 

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     E.     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 AND PERFORMANCE.

 

     Guarantor hereby unconditionally and irrevocably guarantees to Lender the

punctual payment of all sums now or hereafter payable pursuant to the Other Note

and the Other Mortgage. The guaranty of Guarantor as set forth in this Section 1

is a continuing guaranty of payment and not merely a guaranty of collection.

Guarantor additionally unconditionally guarantees to Lender the timely

performance of all other obligations of the Other Borrower under the Other Note,

the Other Mortgage and the other Loan Documents (collectively, the "GUARANTEED

OBLIGATIONS").

 

     2.     PRIMARY LIABILITY OF GUARANTOR.

 

     This Guaranty is an absolute, irrevocable and unconditional guaranty of

payment and performance. Guarantor shall be liable for the payment and

performance 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,

including, without limitation, any and all rights under Sections 26-7 through

26-9 of the North Carolina General Statutes (as amended from time to time) and

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.

 

     Guarantor hereby agrees that upon the failure of the Other Borrower to pay

or perform the Guaranteed Obligations in accordance with the Other Note, the

Other Mortgage or the other Loan Documents, 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 accelerate, 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, all such notices being hereby waived by

Guarantor, pay to Lender or perform all of the Guaranteed Obligations. It shall

not be necessary for Lender, in order to enforce such payment or performance by

Guarantor, first to institute suit or pursue or exhaust any rights or remedies

against the Other Borrower or others liable for such performance, or to enforce

the rights against any of any security that shall ever have been given to secure

such Loan, or to join the Other Borrower or any others liable for the payment or

performance of the Guaranteed Obligations in any action to

 

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enforce this Guaranty, or to resort to any other means of obtaining payment of

the Guaranteed Obligations.

 

     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.

 

     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)       intentionally omitted;

 

           (ii)      any claim or defense that this Guaranty was made without

consideration or is not supported by adequate consideration;

 

           (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 the Other Borrower 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 the Other Borrower 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

 

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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 the Other Borrower, 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 against the Other Borrower or any

security or other recourse, or of any new agreement between Lender, and the

Other Borrower, 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 the

Guarantor shall be responsible for obtaining for itself information regarding

the Other Borrower and the property secured by the Other Mortgage (the "OTHER

PROPERTY"), including, but not limited to, any changes in the business or

financial condition of the Other Borrower or the Other Property, and the

Guarantor acknowledges and agrees that the Lender shall have no duty to notify

the Guarantor of any information which the Lender may have concerning the Other

Borrower.

 

           (xi)      the making of advances by Lender to protect its interest in

the Property generally the Other Mortgage, preserve the value of such 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 the Other Borrower, Lender, or any other

party, whether or not arising in connection with this Guaranty, the Note, the

Mortgage, or any other Loan Document;

 

           (xiii)    the unenforceability of all or any part of the Guaranteed

Obligations against the Other Borrower, 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 any of the Other Borrower

has any valid defense, claim or offset with respect thereto, or because the

Other Borrower's obligation ceases

 

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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 the

Other Borrower 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 Other Borrower 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 the Other

Borrower or any member or manager of the Other Borrower, including any

extension, reduction, composition, or other alteration of the Guaranteed

Obligations, whether or not consented to by Lender.

 

     In the event any payment to Lender by the Other Borrower or any other party

under the Other Note, the Other Mortgage or the other Loan Documents 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 the Other Borrower 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 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.

 

     If the time for payment of any amount payable by the Other Borrower 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, the Other Borrower is

now or hereafter becomes indebted to Guarantor:

 

     such indebtedness and all interest thereon and all liens, security

interests and rights now or hereafter existing with respect to property of the

Other Borrower 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;

 

     Guarantor shall not be entitled to enforce or receive payment, directly or

indirectly, of any such indebtedness of the Other Borrower to Guarantor until

the Guaranteed Obligations have been fully and finally paid and performed;

 

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     Guarantor hereby assigns and grants to Lender a security interest in all

such indebtedness and


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