EXHIBIT 10.159
GUARANTY AGREEMENT REGARDING PIP
REQUIREMENTS
THIS GUARANTY
AGREEMENT REGARDING PIP REQUIREMENTS (this “
Guaranty ”) is executed as of December 17, 2007
by INLAND AMERICAN REAL ESTATE TRUST, INC. , a Maryland
corporation, having an office at 2901 Butterfield Road, Oak Brook,
Illinois 60523 (“ Guarantor ”), for the benefit
of BEAR STEARNS COMMERCIAL MORTGAGE, INC. , a New York
corporation, having an address at 383 Madison Avenue, New York, New
York 10179 (“ Bear Stearns ”) and BANK OF
AMERICA, N.A. , a national banking association, having an
address at Bank of America Corporate Center, 100 North Tryon
Street, Charlotte, North Carolina 28255 (“ Bank of
America ”; Bear Stearns and Bank of America,
collectively, “ Lender ”).
W
I T N
E S S E T H
:
WHEREAS, pursuant to that certain Promissory
Note A-1, dated of even date herewith, executed by the Entities set
forth on Schedule I of this Guaranty (individually, “
Borrower ” and collectively, “ Borrowers
”), and payable to the order of Bear Stearns in the original
principal amount of EIGHTY SIX MILLION TWO HUNDRED TWELVE THOUSAND
FIVE HUNDRED and NO/100 DOLLARS ($86,212,500.00) (together with all
renewals, modifications, increases and extensions thereof, “
Note A-1 ”), that certain Promissory Note A-2, dated
of even date herewith, executed by Borrowers, and payable to the
order of Bear Stearns in the original principal amount of EIGHTY
SIX MILLION TWO HUNDRED TWELVE THOUSAND FIVE HUNDRED and NO/100
DOLLARS ($86,212,500.00) (together with all renewals,
modifications, increases and extensions thereof, “ Note
A-2 ”), that certain Promissory Note A-3, dated of even
date herewith, executed by Borrowers, and payable to the order of
Bank of America in the original principal amount of EIGHTY SIX
MILLION TWO HUNDRED TWELVE THOUSAND FIVE HUNDRED and NO/100 DOLLARS
($86,212,500.00) (together with all renewals, modifications,
increases and extensions thereof, “ Note A-3 ”),
and that certain Promissory Note A-4, dated of even date herewith,
executed by Borrowers, and payable to the order of Bank of America
in the original principal amount of EIGHTY SIX MILLION TWO HUNDRED
TWELVE THOUSAND FIVE HUNDRED and NO/100 DOLLARS ($86,212,500.00)
(together with all renewals, modifications, increases and
extensions thereof, “ Note A-4 ”; Note A-1, Note
A-2, Note A-3, and Note A-4, collectively, the “ Notes
”), Borrowers have become indebted, and may from time to time
be further indebted, to Lender with respect to a loan (“
Loan ”) which is secured by the liens and security
interests of those certain twenty-seven mortgages or deeds of trust
of even date herewith (the “ Mortgages ”), and
is further evidenced by that certain Loan Agreement, of even date
herewith between Borrowers and Lender (as the same may hereinafter
be amended, modified, restated, renewed or replaced the “
Loan Agreement ”) and further evidenced, secured or
governed by other instruments and documents executed in connection
with the Loan (together with the Notes, the Loan Agreement and
Mortgages, the “ Loan Documents ”);
WHEREAS, pursuant to the applicable Franchise
Agreement and/or Management Agreement, certain of Borrowers are or
will be obligated to comply with the property improvement programs
at the related Properties (the “ PIP Requirements) ;
and
WHEREAS, Lender is not willing to make the
Loan, or otherwise extend credit, to Borrowers unless Guarantor
unconditionally guarantees payment and performance to Lender of the
Guaranteed Obligations (as herein defined); and
WHEREAS, Guarantor is the owner of a direct or
indirect interest in Borrowers, and Guarantor will directly benefit
from Lender’s making the Loan to Borrowers.
NOW, THEREFORE, as an inducement to Lender to
make the Loan to Borrowers, and to extend such additional credit as
Lender may from time to time agree to extend under the Loan
Documents, and for other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, the
parties do hereby agree as follows:
ARTICLE 1 - NATURE AND
SCOPE OF GUARANTY
Section 1.1
Guaranty of Obligation . Subject to the express
limitations set forth in Section 5.15 below, Guarantor hereby
irrevocably and unconditionally guarantees to Lender and its
successors and assigns the payment and performance of the
Guaranteed Obligations as and when the same shall be due and
payable. Guarantor hereby irrevocably and unconditionally covenants
and agrees that it is liable for the Guaranteed Obligations as a
primary obligor.
Section 1.2
Definition of Guaranteed Obligations . As used
herein, the term “ Guaranteed Obligations ”
means the payment and performance of the PIP Requirements in
accordance with the time frames and the other requirements set
forth in the applicable Franchise Agreement and/or Management
Agreement.
Section 1.3
Nature of Guaranty . This Guaranty is an irrevocable,
absolute, continuing guaranty of payment and performance and not a
guaranty of collection. This Guaranty may not be revoked by
Guarantor and shall continue to be effective with respect to any
Guaranteed Obligations arising or created after any attempted
revocation by Guarantor. The fact that at any time or from time to
time the Guaranteed Obligations may be increased or reduced shall
not release or discharge the obligation of Guarantor to Lender with
respect to the Guaranteed Obligations. This Guaranty may be
enforced by Lender and any subsequent holder of the Notes and shall
not be discharged by the assignment or negotiation of all or part
of the Notes.
Section 1.4
Guaranteed Obligations Not Reduced by Offset . The
Guaranteed Obligations and the liabilities and obligations of
Guarantor to Lender hereunder, shall not be reduced, discharged or
released because or by reason of any existing or future offset,
claim or defense of any Borrower, or any other party, against
Lender or against payment of the Guaranteed Obligations, whether
such offset, claim or defense arises in connection with the
Guaranteed Obligations (or the transactions creating the Guaranteed
Obligations) or otherwise.
Section 1.5
Payment By Guarantor . If all or any part of the Guaranteed
Obligations shall not be punctually paid when due, Guarantor shall,
immediately upon demand by Lender, and without presentment,
protest, notice of protest, notice of non-payment, notice of
intention to accelerate the maturity, notice of acceleration of the
maturity, or any other notice whatsoever, pay in lawful money of
the United States of America, the amount due on the Guaranteed
Obligations to Lender at Lender’s address as set forth
herein. Such demand(s) may
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be
made at any time coincident with or after the time for payment of
all or part of the Guaranteed Obligations, and may be made from
time to time with respect to the same or different items of
Guaranteed Obligations. Such demand shall be deemed made, given and
received in accordance with the notice provisions
hereof.
Section 1.6
No Duty To Pursue Others . It shall not be necessary
for Lender (and Guarantor hereby waives any rights which Guarantor
may have to require Lender), in order to enforce the obligations of
Guarantor hereunder, first to (i) institute suit or exhaust
its remedies against Borrowers or others liable on the Loan or the
Guaranteed Obligations or any other person, (ii) enforce
Lender’s rights against any collateral which shall ever have
been given to secure the Loan, (iii) enforce Lender’s
rights against any other guarantors of the Guaranteed Obligations,
(iv) join any Borrower or any others liable on the Guaranteed
Obligations in any action seeking to enforce this Guaranty,
(v) exhaust any remedies available to Lender against any
collateral which shall ever have been given to secure the Loan, or
(vi) resort to any other means of obtaining payment or
performance of the Guaranteed Obligations. Lender shall not be
required to mitigate damages or take any other action to reduce,
collect or enforce the Guaranteed Obligations.
Section 1.7
Waivers . Guarantor agrees to the provisions of the
Loan Documents, and hereby waives notice of (i) any loans or
advances made by Lender to Borrowers, (ii) acceptance of this
Guaranty, (iii) any amendment or extension of the Notes, the
Loan Agreement or of any other Loan Documents, (iv) the
execution and delivery by Borrowers and Lender of any other loan or
credit agreement or of Borrowers’ execution and delivery of
any promissory notes or other documents arising under the Loan
Documents or in connection with the Property, (v) the
occurrence of any breach by any Borrower or an Event of Default,
(vi) Lender’s transfer or disposition of the Guaranteed
Obligations, or any part thereof, (vii) sale or foreclosure
(or posting or advertising for sale or foreclosure) of any
collateral for the Guaranteed Obligations, (viii) protest,
proof of non-payment or default by any Borrower, or (ix) any
other action at any time taken or omitted by Lender, and,
generally, all demands and notices of every kind in connection with
this Guaranty, the Loan Documents, any documents or agreements
evidencing, securing or relating to any of the Guaranteed
Obligations and the obligations hereby guaranteed.
Section 1.8
Payment of Expenses . In the event that Guarantor
should breach or fail to timely perform any provisions of this
Guaranty, Guarantor shall, immediately upon demand by Lender, pay
Lender all costs and expenses (including court costs and
attorneys’ fees) incurred by Lender in the enforcement hereof
or the preservation of Lender’s rights hereunder. The
covenant contained in this Section shall survive the payment
and performance of the Guaranteed Obligations.
Section 1.9
Effect of Bankruptcy . In the event that, pursuant to
any insolvency, bankruptcy, reorganization, receivership or other
debtor relief law, or any judgment, order or decision thereunder,
Lender must rescind or restore any payment, or any part thereof,
received by Lender in satisfaction of the Guaranteed Obligations,
as set forth herein, any prior release or discharge from the terms
of this Guaranty given to Guarantor by Lender shall be without
effect, and this Guaranty shall remain in full force and effect. It
is the intention of
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Borrowers and Guarantor that Guarantor’s
obligations hereunder shall not be discharged except by
Guarantor’s performance of such obligations and then only to
the extent of such performance.
Section 1.10
Waiver of Subrogation, Reimbursement and Contribution
. Notwithstanding anything to the contrary contained in this
Guaranty, Guarantor hereby unconditionally and irrevocably waives,
releases and abrogates any and all rights it may now or hereafter
have under any agreement, at law or in equity (including, without
limitation, any law subrogating the Guarantor to the rights of
Lender), to assert any claim against or seek contribution,
indemnification or any other form of reimbursement from any
Borrower of any or all of the Guaranteed Obligations for any
payment made by Guarantor under or in connection with this Guaranty
or otherwise.
Section 1.11
Borrowers . The terms “Borrower” or
“Borrowers” as used herein shall include any new or
successor corporation, association, partnership (general or
limited), joint venture, trust or other individual or organization
formed as a result of any merger, reorganization, sale, transfer,
devise, gift or bequest of any Borrower or any interest in any
Borrower.
ARTICLE 2 - EVENTS AND
CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR’S OBLIGATIONS
Guarantor hereby consents and agrees to each of
the following, and agrees that Guarantor’s obligations under
this Guaranty shall not be released, diminished, impaired, reduced
or adversely affected by any of the following, and waives any
common law, equitable, statutory or other rights (including without
limitation rights to notice) which Guarantor might otherwise have
as a result of or in connection with any of the
following:
Section 2.1
Modifications . Any renewal, extension, increase,
modification, alteration or rearrangement of all or any part of the
Guaranteed Obligations, the Notes, the Loan Agreement, the other
Loan Documents, or any other document, instrument, contract or
understanding between Borrowers and Lender, or any other parties,
pertaining to the Guaranteed Obligations or any failure of Lender
to notify Guarantor of any such action.
Section 2.2
Adjustment . Any adjustment, indulgence, forbearance or
compromise that might be granted or given by Lender to any Borrower
or any Guarantor.
Section 2.3
Condition of Borrowers or Guarantor . The insolvency,
bankruptcy, arrangement, adjustment, composition, liquidation,
disability, dissolution or lack of power of any Borrower, Guarantor
or any other party at any time liable for the payment of all or
part of the Guaranteed Obligations; or any dissolution of any
Borrower or Guarantor, or any sale, lease or transfer of any or all
of the assets of any Borrower or Guarantor, or any changes in the
shareholders, partners or members of any Borrower or Guarantor; or
any reorganization of Borrowers or Guarantor.
Section 2.4
Invalidity of Guaranteed Obligations . The invalidity,
illegality or unenforceability of all or any part of the Guaranteed
Obligations, or any document or agreement executed in connection
with the Guaranteed Obligations, for any reason whatsoever,
including without limitation the fact that (i) the Guaranteed
Obligations, or any part thereof, exceeds the
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amount permitted by law, (ii) the act of
creating the Guaranteed Obligations or any part thereof is ultra
vires, (iii) the off
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