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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
