RTP LLC et al v. Orix Real Estate Capital, Inc., No. 1:2013cv00350 - Document 112 (N.D. Ill. 2014)
Court Description: MOTION by Defendant Orix Real Estate Capital, Inc. for judgment Entry of Final Judgment Order (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4 (Proposed Order))(Benz, Michael)
Download PDF
<![CDATA[
RTP LLC et al v. Orix Real Estate Capital, Inc. Doc. 112 Att. 1 EXHIBIT 1 Document! Dockets.Justia.com GUARTY THIS GUARTY ("Guaranty'') is dated as of September 27, 2007 and is made by INRITANCE CAPITAL GROUP, LLC, a Michigan liited liabilty company ("Guarantor"), for the benefit of oRI REAL ESTATE CAPITAL, INC., a Delaware corporation, its successors and assigns ("Lender"). RECITALS A Lender has agreed to loan up to the pricipal amoUDt of $41,250,000 (the "Loan'') to RTP LLC, a Michiga liite liability company ("Borrower'') puruat to the temS and conditions of a cerin Loan and Securty Agreement of even da herewth (as amended from tie to tie, the "Loan Agreement'') by and betwee Borrower and Leder- All caitaed ters not otherse defiedii th GinyshalJiave the meags given them in the Loan Agreement. R Lender has required, as a condtion precedent to extension and disburement of the Loan to Borrower and in considennn therefor, the execution and delivery of ths Guty by Guators. C. Gutor has an interest in Borrwer, and having a fiancial interest in the Prper, have agred to execute and deIiver ths Guty to Lender. , NOW THEREFORE, in consderation of the Recitas set fort above and hereby incorpraed and bt:good and valuable consderaon, the receipt an suffciency of which are hereby acknowledge ea Guartor hereby ages as follows: 1. Liabilties Notwthdig an excuation or other provisions in any Loan Document to the cont, Guaor ags to be peronally liable for the payment and satsfaction of eah and al of th followi (collectively, "Guarantors Liailties"): the followig: (a) Al Los and Expenses arising from any of 1 (i any gross negligence or wi misnduct of Borrwer or Guartor or any of. their restive Afliates, agts, employees, attmeys-ii-fat or reresentrves (an in the cae of any agent ot reresentave, sl.ch age or repretatve ha actu, apparnt, ~st:òle or imlied authonty); (ii) any reova Of disposa of any porton of the Prpert or the Coiiater by Borrower or Guator or any of th reective Afes, agents or representaves afer an Event of Defau (iii) any secty deposits, adance dc:sits or any other deposits collecte with resect to the Prper which. were not delivered to Leder, except to the extent any such securty depsits wer applied in acordce with the ter an conditions of any of permtted by the Loan Agent; aIl/ i2519313.l the Lea as expressly (iv) any inurace policy required by the Loan Documents has not been obtained or is nO longer in full force and effect; (v) any payment of fees to Borrower, any Guarantor or an Afliate of Borrower or any Guarantor following an Event. of Default except as expressly permtt b;y the Loan Documents; (vi) \any failure to pay when due the Monthy Tax Deposit or the Monthy Inurace Deposit to the extent Revenue was avaiable for such purose; (vii) any rent being paid more than one (1) month in advance and not applied to operatjng expenses of the Proper or payment of the Indebtedness; (viii) any faiur to pay chages for labor or materials or other charges that could result in the creation of Lien on. any porton of the Proper (ix) any hirig of employee in violaton of the Loan Docents; (x) any use of Revenues generted af the occurence of any Cah Trap Event or Default for puroses other th payment of usual and customar operatig expenes of the Proper Dr the Indebtedess, (xi) any use of Loss Recoveres for puroses other than as deignated purt to the Loan Agreement; (xii) any fame to cause al Revenues to be depsite into the Blocke Account in acrdace with the requirements of the Loan Agreeent; (xíü). any physcal loss or damage afecting the Propert resultig frm the intetional acts of Borrwer, any Guator or any of their reective agents or Afliates, or any intentional physical or econoirc waste with respect to the Prer or any par thereof; (xiv) faur of the Prper to comply with the Amerei with Disilities Act; and . (xv) any falur to alow inections of Borrwer's boks and reord as reuied by any of the Prper or acc to the Loan Docieits. (b) Wiihout liting the generlity of subparphs (a) or (b) above, all of the Indebtednes and ofIer ObIigations (iicluding Loss and EXenes) in the event of. - 2CHOII1251933. _.......__' .__.'_ ---'-~"-----'.-~~::;:~.7.:' .-;:::~-::-.~-.,.:-,:-:-_~~:"7:.~.-~'-."-----'--'.- -.--,-:""..-."--.-..--~.:-:;"..:::-,-;'::-=-..-:;::::;;:-::-.--~~-.".-- -.--.-:'--:-.:-.--_..._---_.-_--.--'- - . (i) any fraud or any material misrepresentation by or on behalf of Borrower or Guator (including by their respective employees, agents, Afates and atorneys-in-fact) in ¿oimection with the Loan obtainng any consent or determnaton from Lender or the submision of ficial inormation; (ii) any Trafer, sale, conyeyance, assignent, fuer encumbrace, other trfer or the creaon of a securty interest by Borrower or Gutor of title to, or an ownership interest in the Proper or any other Collateral or any volunta imposition by Borrower or Guator of a Lien upon the Propert or any other Collaer uness expressly peritt under the Loan Documents; (iü) . any acuisition of asets or incurence of indebtedes by Borrower in violaton of any provision of the Loan Documents or any Borrwer' s covenant to maitan its exstence as a other material breah of Single purose Entity; (iv) the commencement of an Inlvency Prceediig. by Borrower or Gutor Dr collusion or cooperon by Borrower or . Guarantor with any thd par to commence an Inolvency Proceedg agaist Borrwer (v) an Afat, offcer, dictor or representative which Controls diectly or-ndirectly, Borrwer or Guarantor fili Dr joinig in the fiIIng of, an involunta. petition ag Borrwer or Guartor under the Bantcy Code Dr any other Federal or stae banptcy or inolvency law, or solicitig or causg to be solicited another creditor for the purose of commencing any such involunta petition agai BOITçiwer or Guarantor, (vi) Borrower or Guator .f an answer consentig to or otherise acquiesg in or joiIg in any involunta petition filed agait Borer or Guator by any other Péron under the Bantcy Code or any other Feder or stae bantcy or inlvency law; (vii) Borrwer or Gutor conseng to or acqtUescing in or joing in an application for the appointment of a custodian receiver, trtee, Dr exer for Borrwer Dr Gitor or any pDrton of the ... Proper or the Coll or Borrwer or Gutor mag an asigment for the benefit of cretors; (vi) Borrwer, Guator or any Afiate of Borrwer or Guantor contesg or in any way inererg with, directly or indiretly, any forelosur action, DCC sale or other remedy exeriseD by Lender upon the ocurnce of any Event of Default wheter by makng any motion, brigig any counterclai, claimig any defens, seeking any - 3;-_._-------; ..._..-... .._---_._---. CHOI 12519313 g .:-._._.,--:-=~.~:-.=--~-;..:--O---"":7:.-;~~.~~~.::--:~-.-:':'--:~=.-,-_.- -.--------~- .-.::::~':::::-:-::':-----._'''''.:-~-~.7.-:-",.::-~-=:7:::-.~:.:-_~-_.-- inJunction or other restrint, commencing any action, or otherwise, excluding, however, (a) Borrower's or Guarantor's good faith contest of the existence of an Event of Default and (b) exercise by Borrower of any right ofredemption available under Applicable Laws; or (ix) . any distrbutions by Borrower of cash or asets afer an Event of Default or the occuence of a Cash Trii Event The term "Losses and Ei:~ses" mean (a) all losses, daages, diect or consuential, and liabilities wlnch Leder or any susequent bolder of the Note may payor incu, includig protective advances and the cost of appras, site investigation, engieeng report and sureys, audits or other invesgaons and (b) all reasnable attorneys' fees, cour costs and other legal expenses and all other cost and expenes of any kid which Lender or any subsequent holder of the Note may payor incur in atempting to collect, compromise or enforce, in any resect, .'any of Guartor's Liabilities, whether or not sut is ever filed. and whether or not in connection with any insolvency, bantcy, reorgaIaton, argement or other siilar proceeding involving Borrower, any Guator or any other guarantor. If Lender pays any such cost or expene, "Losses and Expnses" shall also include interest at the Defaut Rate on any such payment from the date such cost or expenes is incured until repayment to Lender in full. 2. Absolute Guaranty. of (a) Ths Gii-ity is an absolute inependent and preseDt guarty payment and pedoimce and not of collecon. Lender shal not be required to prosecute collection, enorcment or other remedies agat Borrwer or any other peron or par that may be obligaed for al or any par of GU4antor's Liabilities nor to purue any other rights or remedies before seelång sasfacton of Guartor's Liabilties. Guartor shall pay.al of Guator's Liabilities to Lender in.fil imedately upon demd. One or more successive actions may be brougt against Guantor, as oft as Lender dees advisable, until all of Guartor's Liabilities are paid and perrmed in full. (b) Guator herby agrees to indemfy, defend and save harless Leder frm and agait any and al cost, losses, liablities, clai, causes of action, ex.pens and daages, includng reaonable attrneys: fees and disburements, which Lender may suer or which otherse may arse by rean of Borrwer's faiure to pay or perorm any of the Indebtedess or the Obligations whether suh. costs, losse, liabilities, clais, caues of when due, irestive of action, expense or damages ar incur by Lender prior or subsequent to (i) Lender's declarg the pricipaJ, inteest and other su evidenced Dr secured by the Loan Docuents to be due and payale, (u) the commencement or completion of a judicial or non-judicial forelose of the Dee of Trot or (ii) the conveyace of al or any porton of the Prper by deed-m-lieu of foreclosu. . any sum .applied (other than (c) Guitor agree that no porton of sum received from Guartor in full or paral satfaction of its obligatons the Indebtedness sha be deemed to hereunder), from tie to tie, in reduction of - 4CHOII 12519313 g ____________...:~._:._:..~-;:___::c:__'.~.~__.;_;~:';c~.:.;-;-_.__.._.____:-:~.:~_:...--__,__:__:-;-.-- ...------~..;:--- - ~.-:~~~~;_:-~-~.--."'~_:~::.~~. -..-~~..~_7_._~:.::.--.---,-,--,._:c-.:_~:-;_"'__--:-.. have been applied in reduction of the Guarantor's Liabilities until such time as the Debt has been paid in full, or Guator shall have made the full payment required hereunder, it being the intention hereof that the Guarantor's Liabilities shal be the last portion of the Indebtedess to be deemed satisfied. 3. Representations and Warranties. Guartor hereby represents and warts to Lender as follows: (a) Review of this Guaranty and the Loan Documents. Guartor has reviewed with the benefit of its legal counel the ter of tl Guarty and each other Loan Document. (b) Organization; Authorition. If Guartor is not a natual person. Gutor is duly organed valdly existng and in good standing under the laws of th State of its formaton, and has dily qulified and is in goo stding uner the laws of each other Stae in which its activities require that it be quaifed. Guaantor ha all requisite parership Dr corpr~te (as the case may be) power and all materal goverental licenes, authorizations, consents, an approvals necessa to own its assets and ca on its business as now being conducte. Guartor delivered tls Guaty executed by the proper individuals pursuat to proper authority dily grted. (c) Enforceabilty. Each obligaon under ths Guamty is lega vald, bindig and enforceable agast Guartor in accordance with its ter (d) Fianci:l1 Statements. The ficial staents fushed on bealf of Gutor to Leder in connection with th Guaty or the Loan Docuents are: (a) tre and corrct in al materal resects~ (b) have been prepa in accordance with genery accepted accounting pnciples consistently applied an (c) present f.ly the fiancial .condition of Guator as of the respecve daes therof No materal adverse change bas occurd in the ficial condition of Guator sice the effective dats of such financial staements. (e) No Existig Defaults and No Litigation. Guator is not in defaut under any a.ent, and no event has occured that with the pasage of tie and/or the givi of notice would constI.tute a default imder any agent, the effect of which colÙd maally adverely afect peroi:ce of Guartor's obligations under tls Guarty. There are DO litigaton. arbitraton, goverenta or admstrve proceeings, actions, examations, cla or demans pendig or, to the bes of Gutor's knowledge, thtened agait Gutor before any cour or other goverental authority of any kid which could materally adversely affect perormance of Guator's obligations imde ths Guaty. Neither the execution and delivery of ths Guty nor compliance with the term and provisions of ths Guaty will violate any aplicable law, rule, regulaton, judgment, dec or order, or wil confct with or resilt in any bre of any of the ters, covenants, conditions or provisions of any indenture, mortgage, deed of tr, intrent, document. ageeent or contrct of any kind that creates, - 5CHOll 12519313. ....--;-:...- -.-.":..::':=..,-;--.-.....'-.-.--.-..-'---..----,..'--,---.------.,------.....----..-~=:':::__-..,-7._--:::::._:.-:~.~-__;._::.~:'-_.-----=---.:-:7.~~----,-_-.-_:~O-~-_---.~-.-.--: represents, evidences or provides for any lien, charge or encumbrance upon any of the propert or assets of Guarantor, or any other indentue, mortgage, deed of trst, instrent. docwnent, agreeent or contract of any kind to which Guaantor is a pary Dr to which Guantor or the property of Guartor may be subject. (f) No Mistatements .OT Omissions. This Guarty does not conta any untre statement of fat nor omit to state any fact materal to ths Guaranty. Guator ha no knowledge of any materal fact. inaccurcy or untrth concernng the Borrower or Borrower's finacial condition which ha not been disclosed to Lender and might adversely affect Lender's determnaton to enter into or arge disbursement of the Loan . (g) Governmental AJlpTovak~cNo- regitronwith . or-consent or approval of, Dr other action by,' any Federa, ste, muncipal or other governental agency, authority or regulatory body, domestic or foreign relating to Guartor is or will be require in connection with the execution, delivery and performance of ths GUaIty. (h) Loans to Borrower. Borrwer has no unaid loas or advances from, or other obligations 10, Gwitor. (i) Financial ConditioD. As of the dae hereof, Guator ha (i) cash on had of no less than $1,164,5.89.11, an (ü) a table net wort (which is identied- on Guarantor's June 30, 2007 fiancial stateent as ''Tota Equity), determed in accordace with generaly accepted accountig priciples consstently applied of not less th $12,525,940 (excludig the value of Guator's direct or indiect investment in the Proper). 4. Indemnities. Guartor hery indemnfies Leder and agrees to defend and hold Lender haness from and against any loss, cost. damage or expene occurg by rean of a breah of the reresntations, warties or covenants set fort in th Guarty, and the loss, mitigaon, subordination or other consequences advere to Leder by reaon of ths Guty being challenged as a prefernce or suferg any other subjugation under any banptcy or other law, whether stte or feder afectig debtors, credtors and/or the relatonshi betwee such pares. 5. Covenants. For as long as th Guaranty shall rema in effect. Gutor hereby covenants an ages as follows: (a) Net Wort: Periodic Financial Report. At al ties durg the ter of the Loan Gutor shl maita: (i) a tagiòle net wort (which is identified on Guartor's June 30, 2007 ficial statement as "Tota Equity, determned in accrdance with generly accted acuntig priciples consstently applied, of not less than $5,000,000 (excludig the value of Guartor's dict Dr indiect investment in the Proper); and (ii) cah and rediy marketable securties in an amount not les than $500,000. No Iater than - 6CHOill25193J3.8 -.-:--,-:,---,-~-:-:--;-,-,-:----,-,--~-::=,~,-:.,._--- - - - ----- ------- -~ - ---- -=.---- -~ - ------------ -. forty-five (45) days afer the end of each calenda quaer and with niety (90) days of the end of each calendar year, Guarantor shall submit to Lender financíal statements contaning statements of income and expenses for the previous caendar qller and assets and liabilities as of the last day of th previous calendar quaer Dr, as applicable, as of the last day of the precding calendar year, to demonstre Guator's compliance with the foregoing- fiancial covent. Such statements shal be certified as tre, correct and complete in al materals respects and not misleaing as to Guarantor's fiancial condition, and in addition to the foregoing, the anual financial statements of Guartor shal be audited by an indepenent certified ~ubüc acuntig fi approved by Leder . (Lender hereby acknowledges that UH Advirs MI, Inc. and Waxenberg & Mueller PLLC are approved certfied public accounting fi). . In addition to any Trut, withn 10 days aftr the request fiancial report reuired under the Dee of of Leder, Guartor shall deliver to Leder a copy of Guaantor's unaudted b~lance sheet, income st2ement and stament of changes in fiancial position for . the imedately precing fica year. Each suh report shall: (a) ÍIclude a schedule of all materal contigent liabilities and all other notes and schedules relatig thereto; (b) be in a form reonaly sasfactory to Lender, and (c) be accompaned by a cercation by the manager of Gwanto to Leder that such report: (i). has been prepar in accordce with generaly accepted acounting principles coistely applied; (ü) presets fairly the. fiancial condition of Gutor as of the respectie dates thereof; and (iii) shows al diect and contient .materal liabilites of Guator as of such dates. In addition, Guator shall deliver to Leder from tie to tie such other fiancial stements and inoraton as Lender may reably reuet. (b) Transfers Sales Etc. Guarr shl not sell lease, tranfer, conveyor asign any of Gutor's mateal assets, diectly or indiectly, uness: (i) Gu.tor shall reive adquate consderaon for such assets; and (ii) such trsaction will not have a matrial adverse afect on the fiancial codition of Guartor. (c) Rescinded or Returned Payments. If at any tIIe any par of any paymen prevously applied by Lender to any of Guatoi's Liabilities is resinde or retued by Leder for any reasn, includig the insolvency, bantcy or rergation of Borrwer or any other par, Guartor's Liabilities shal be deeed to have contiued in extee to the extent that such payment is rescided or retued and ths Guty sha be reinsed as to Gutor's Liabilities as thug such. payment by Guartor and prior aplicaton by Leer bad not bee made. Cd) Ce.rtam Permitted Actions of Lender. Lender may frm tie the to time, in Leder's sole disction and without notice to Gitor, tae any of followi actions without in any way afectig the obligations of Guator. (i) obta a securty interest in any propert to secure any. of the Indebtedness Dr the Obligations or any obligaon herder; (ii) obta the priar or seconda obligaon of any additional obligor or obligors with respect to any of the -7CHDJll2519313.8 "-:---,....-:--7--.-..-- --"----c---,-,.:-==.:~::-:::.~";:,--..":.., "".-"7'--:-'--,:-'.-:-..-:~- ;-._,~~-:-,-:~,,-,,--:-,~-:-:",-:-:~,..,.~~--=-:;=--,-,--- _._,----,--:~---- .-"------.---- Indebtedness or the Obligations; (iii) extend, modfy, subordinate, exchange or releae any of the Indebtedness or the Obligations; (iv) modify, subordinate, exchange Dr release Leder's securty interest in any par of any property securg any oftbe Indebtedess or the Obligations or any obligaon hereunder, or extend. modi, subordinate, exchage or release any obligations of any obligor with respect to any such prper; (v) alter the maner or place of payment of the Indebtedess or the Obligations; (vi) enforce this Guaranty against Guartor for payment of any of GuarantDr's Liabilities, whether or not Lender shall have (A) proced against Borrower or any other gutor Dr any other par prily or secondaly obligated with respect to any of Guator's Liabilties or any Indebtedness or (B) resrted to or exhausted any other remedy or any other securty or collater; and (vi) foreclose on, tae possession of or sell any of the coIIa.l or sixurty for Guartor's Liabilities or enforce any other rights under any otber Loan Document. (e) Lender's Option to Release. Lender may frm tie to tie in Lender's sole and absolute discretion (i) releae anyone or more Guartors from any or al of Gutor.' obligatons and liabilities hereunder and/or (ü) releae Borrower or any other obligor frOID any of the Indebtees or the Obligations, al without notice to Borrower, any Guarantor or any other par and without in any way releaing or afecting the liability of Guartor hereunder Dot a par of any such release. (f) Application of Payments. Lede may apply any payment made on accunt of the Indebteess Dr the Obligations toward such of the Inebtedess or the Obligations, and in such order as Lender may from tie to tie elect in Leder's sole discetion, whether or not the Inebtedess or the Obligaons are gutee herby, otherise seced or due at the time of application. (g) Subordiation.. Gutor hereby subordiats any debts, obligatons, clai or lien of Gutor agaist Borrwer and/or with respect to .the Proper and other Collaterl, of any kind (includig any right of Guartor to a retu of any caital contròuted to.Borrwer), to" all of Guator's Liabilities and to any other clai or liens of 0nder againt Borrwer Dr the prope of any of them Upon any notice by Leder to Borrower of any Event of Default under any Loan Document, Gutor shal enorce any of Guator's clai or lien as tr for Lender, and shal cause any receipts to be paid over to Lender without afectig in any maner the liabilty of Guator under ths Gru except to the extet of suh payment Except as provided in the. precg sentece, unti th Indebtees is paid in ful and all of Leder's obligaions under the Loan Documents have termnated Gutor shal not, without Leder's conset, tae any actioD. of any kid to enorc any debts, clai or lien of Guantor against Borrower anor with resect to the Propert or other CollaterL. As long as no such notice of defaut has been given by Leder, Guator may apply to Guator's own account payments made; to Guator by or on behalf of Borrwer. . -8- CHOII 12519313.8 ----..--=---..,.-:-:~"':::__.:_..."7- ~~-~""---:~~-~'--.-.-'"",-_..,--,---_.,--,,,--..,,..--~~-----.--:~-'-':--._---'-- (h) Certain Events Not Mfectig Obligations of Guarantor. The obligations of Guaantor hereunder shal not be affected by any of the following: (i) any lack of validity or enforceability of any of the Loan Documents; (ii) the release or discharge of Borrower or any other Guartor in. any creditors' receivership, banptcy, reorgtion, insolvency, or other proceeding; (iii) the rejection or disafance in any such proceeding of any of Guartor's Liabilities (iv) the irpaient or modficaon of any of Guartor's Liabilities, or of any remedy for the enforcement thereof, or of the estte of Borrower or any other Guartor in bantcy, resultig from any presnt or futue feder or state banptcy law or any other law of any kind or from the decision or ordi: of any cour or other govemmeitalautority (y) any disaility or defense of Borrower or any other Guarantor, (vi) the cessation of the liability of Borrower or any other Guartor for any cause whatoever. other than payment and and the Obligations of Guator's Liabilities, respectively; (vii) any sae, asignent, transfer or other conveyance (inluding any conveyace in lieu of foreclosue or any collaeral sale puruant to perorance in- full of all of the Indebtedess the Uniform Commercial Cod) of any of the securty for any of Guartor's Liabilities, regardless of the aoount reved by Lender in connecon therewith; or (viii) any disability or defene of any kid now existig of Guarantor with respect to any provision of ths Guaty. LendeT Regarding Security Interest Lede (i) No Obligation of shall have no obIigaton to obta pedect or retan a securty interest in any or ths Gi,ty (inludig any propery to seure any of Guaantor's Liabilties mortgage or sety interest contempla by the Loan Documents), Dr to protect or ine any such proper. (j) Filng of Certn Clai. Guartor shll promptly file in any banptcy or other proceedg in which the fig of claim is requied by law al clai and proofs of suh cla which Guator may have against Borrower, and will collaty assign to Leder or its nomiee all rights of Guartor th=unde. If Guarantor does not so file, Guaantor hereby irevocably authories Lender or Lcider's nomiee to do so, either (in Leer's disceton) as Lender or Lender's nomiee. In attrney-in-fact for Guarantor, or in the name of al such caes, any par authoried to pay such clai shall pay to Leder or its nomiee the ful amount thereof. (k) ObligatioDs and Taxes. Gutor shall pay and dischage promptly when due al taes, assmen and goverental chages or levies impose upon Guator or upon Guator's income or prfits Dr in resect of Guartor's proper before the payment shal bocme deIiquent or in default; provided however, that Guartor sh not be requid to pay and dicharge or to case to be paid and discharged an such ta assessent or governnta charge or levy so long as the valdity or amount thereof shal be contested in good fath by appropriate proceegs and Guartor shal, to the exent required by generly acted accountig priciples applied on a consístentbasis, have set aside on Guaantor's books adequate rees -wth resect thereto. - 9- -~---- -- - -- ~- - '"-----~-=:: --=- --------- CH01l12519313.8 ~-'C.:_ ----,. ..-.:-------'--.--.~.:.---..--- -- hereby expresly waives: 6. Waivers. Guaantor (a) Notices. Notice of the acceptance by Lender of thi Guarty, notice of the existence, creation or non-payment of any of Guaantor's Liabilities, presentment, demand, notice-of dishonor, protest, notice of protest, and aU other notices which may be re.quired by state, rule of law or otherwise, now or hereafer in effect, except any speciEcaly requied by this Guaanty. (b) Disclosures About Borrower. Any obligation Lender may have to disclose to any Guartor any facts Leder now or hereafer may know or have reasonably available to it regading Borrower Dr Borrower's fiancial condition, any Guarantor or any Guartor's fiancial condition, or regardin the Proper or any other Collatral for the Loan wheter or not Lender ha a reasonable opportty to communcate such facts or has reaon to believe that any such facts are unown to Guarantor or materally increae the risk to Guaantor beyond the risk Guaantor intends to asume hereunder. Gutor shall be fully resonsible for keeping infrmed of the fiancial condition of Borrwer and all other Guators and of all other circutaces bearig on the nsk of nonpayment or nonperformane of Guartor's Liabilities. . (e) Diligence in Collection. Al diligence in collection of any of Gutor's liabilities, any obligaon hereunder, or any guanty or other securtyJor any of the foregoing. apraisement, . (d) Benefit of Cert Laws. The benefit of all valuaon, m.1lling, forbeace, sty, exnsion, reiement, reemption, homestea, exemption and moratorium laws now or hereaer in effect - (e) Certin Defenses. Any defee baed on the incaacity, lack of autority, death or diabilty of any other persn or entity (includig, without limtation, any other Guartor) or the faiure ofLed.r to file or enorc a clai against the estate of any other peron or entity (includig, without limitation, any other Guarantor) in any 3dnistrtive, bantcyor other proceeg. (f) Election of Remedes Defense. Any defene based on an election of remedies by Leder, whether or not such election may affect in any way the reow-e, subrogation or other nghts of any Guaantor against Borrower Dr any other pern (includig, without limitation, any other Guator) in connection with Glltor's Liabilities. (g) Defenses Relatig to Collateral Sale. Any defene bas on the faure of Lender to: (í) provide notice to any Guxtor of a sae or other diosition. (including any collatera sale pur to the Uniform Commeral Code) of any of the securty for any of Gutor's Liabilties; or (ii) conduct such a sale or disposition in a còmmercially renable maner. (h) Defenses Relatig to Loan Adminisation. Any defene based on the negligence of Lender in admste the Loan, or lag or failing to tae - 10- CHOl! 1251 9JIJ B :~~,-;.-:,:~:",-""-"-"'---;'----'----'":-:--'-.- ,:-:;;.:---:---,-.....~.----- any action in coriection therewith or any clai based .on allegations that Lender faled to act in a commercially reasonable maner or faied to exercise any obligation of good faith and fair dealing. (i) Right to Enforce Lender's Remedies. Any nght to enorce. any remedes or to parcipate in any seurty Lender now ha, or later may have, agait Borrower or any other Guator Dr other par, or any requirement to exhaust any remedes, whether by subrogaton or otherise, or any requirement to mitigate damages, until all of the Indebtedess ha been paid to Lender and all other Obligatons have been performed 7. MiceJlaneous. (a) Contiuing Guaranty. Ths Guarty is absolute, unconditional and shal in all respects be a continuig guty of payment an and irevocable perormance (and not merely a guty of collection) and a priar obligaton of Guartor and shall not be subject to any counterclai, set-off, abatement, deferent or defense bas on any claim that Guartor may have agait Lender, Borrwer, any oth guantor, or any other peron or entity. Ths Guarty shall r=aI in full force and effect unti al of the following have occur: (i) al of Guartor'.i Liabilities have been satfied in full; and (ü) Leder has no fuer obligation to make any advance under the Loan Docmnents. No notice of dìntiuace or revocation shl afect any oftbe obligaions of any Guator heæundèr or of Borrower or of any other obligor with reect to any of Guartor's Liabilities. Lender shal not be obligatf:i:io accept aray tie any deed in lieu of forelosure. and all obligations of Guantor hereuner shall survve foreclosure or any deed in lieu of foreclosue which. Lender may accept, to the exent any of Guaor's Liabilties rema unsasfied (b) Obligations; Successors and Assii:s. All obligatons under ths Guaty shal be bindig upon Guator, and upon Gutor's heirs, legal . representaves, succesrs and asign and shal inure to the benefit of Leder, the Note. the Note and the succsors and assign ofea holder of holder of each (c) Assigument by LendeT. Lender may from tie to tie, without notice to Borrwer or Gutor, assign or trfer any inerest in any of Guartor's Liabilities .by loan parcipation Dr othere, and notwthandig such assignent or trsfer, such Guarantor's Liabilties shal remai Guator's Liabilities for puroses 6fths Guty. (d) No Exculpation. ' No exculpatory, iion-recoure", "lited recoure~, or other language contaned in any other Loan Docuent or in any other document shal in any way prevent Dr lit Leder from enforci th Guarty against Guantor peronally. - 11CROll 12519313.& .-_.- '7":-:'':~::~.~.-:~''-'' .'. .._--~-::-~-_._..,.-...- -.,-:,-'-:.-:7"~'--:-.-;-'---'."'" - (e) Lel!al Tender of United States. All payments he-aunder shall be made in coin or currency which at the tie of payment is leg.al tender in the United Staes of Amerca for public and private debts. the essence of (f) Time of Essence. Time is of ths Giity. (g) Definitions; Captions; Gender. With respect to any reference in th Guaanty to any defied term: (í) if such defied t= refer to a person, or a trst, corporaon, parerslup or other entity, then it shl alo mean al heir, personal representatives, successors and assign of such person or entity; and (ü) if such defied t= refers to a document, instent or agreement, the: it shall modification thereof Captions al include any replacement, extension Dr other contaied in ths Guaty in no way defie, limit or extend the scope or intent of their respective provisions. Use of the masulie, fere or neuter genòer and of singla an plural shall not be given the effect of any exclusion Dr limitaon herein The use in this Guary ofthe tem "includi", and related terms such as "include", shal in all cases mean "including, without litation". (h) Notices. Al Notices given under or purt to th Guaty shal be in wrtig and shall be (a) delivered in peron, in which event the Notice shall be deeed received when deliver is actuly made, (b) telecpied in which event the Notice shal be deemed received on the date of transsion if trsion is confed before 4:00 p.rn Chcago tie on a Busness Day or if 1nmIssion is confed afer 4:00 p.m Chcago tie, then on the nex Buses Day provided th the sender obta elecnic confation of receipt :ad that-a copy of such Notice is also delivered purua to clause (a) or (c); or (c) sent by a nationaly recogn overgh courer for next busess day deliver, in which event the Notice shal be deemed received on the fist Business Day afer deliver to, an acctace for delivery by, the courer. All such Notices intended for Lender shal be delered, will a copy to its attorny, to thei respectie Addresses provided in the Loan Agreemeit and if set by fae such Notices shall be sent to the facsie nimber set fort in the Loan Agreement Either par may change its Addrs or facsime number by givig wrtten notice to the other in accordce with the foregoing notice provision. Guator's Addr for Notice is: Inertace Caita Group, LLC 25900 W. 11 Mie Road Suite 260 Soufeld, MI 48034 Att: Adrenne Lace Luca Facsiile No.: (248) 443-1545 -12 CHOll12519313.8 -, -'::7::_'_~~~~7- ,'.- ,"", -:'-:_~-=~-:.-~::::-~- ---; ~-:-- '------,' "--"':-,~-:_:-----:-"---'~ ~:._-,-. ---.;:-:."".:---~-- --- ~---:---_._- .-.-c--------.-,~.' .-'-. .---.-....-. .-'---- ---. ,.... ". '.__.. With a copy to: Cumby & Weems LLP 938 Lincoln Avenue Sprigfield, P A 19064 Att: Kandace Weems Norrs Facile No: (610) 543-7975 (i) Entire AgreemenL Ths Guarty constutes the entie agreement of Guator for the benefit of Léder with respect to the suject mater hereof and suersedes any prior agreements with respect to the suject matter hereof (j) No Modifcation Without Writine. Ths Guaty may not be termated or. modified in any way nor can any right of Lender or any obligation of Gua.tor be waived or modified, except by a wrting signed by Lender and Guartor. (k) Independent Obligations. The obligaons of Gutor hereunder are independent oftbe obligaions ofBorrwer ard any other gutor of any of the Indebtedess. In the event of any default hereuder, Lender IDay intitute a searate action again Guator with Dr without joing Dr insituiig a seare action agt Borrwer or agai any other guarantor Dr obIigor of any oft1e Indebtedes. \ . ' 0) Financial Rik. Gutor sha be fuy reonsble for keeping hiself; herelf or-itsI. as the case may be, inormed of the fianci condition ofBorrowe: and any other guartor and of all other cirumstace bearig on the risk of nonpayment or nonperormance of the Indebtedes or Obligations. (m) Severabilty. Eah provision oftbs Guarty shall be interpreted so as to be effecve and vald uner applicale law, but if any provision of ths Guanty shall in any resect be ineffective or invald under such law, suh .ineffectiven or invalidity shall not afect the remaider of such provision or th remg prvisions of ths Guarty. (n) Cumulative. The obligations of Guartor hereunder are in addition to any other obligatons Guartor may now or herafer.have to Leder, an shal not be afected ii any way by th delivery to Leder by Guator or any other guartor of any other guarty, or any combination then::;of. All rights an remedes of Lender and all obligations of Guator under ths Guaty are cumulaíve. In adtion, Leder sha have all rights and remedes. avaiable to th Guty. Leder in law or equity for the enorcement of (0) Effect of Lender's Delay or Action. No delay by Leder In the exerise of any right or remedy shal operte as a waiver therf, an no single oÍ paral exercise by Leder of any right Dr remedy shall prelude any other exerise thereof or the exerise of any other right or remedy. No action ofunCÌ pertted hereunder shall in any way impair Dr otherse afect any right of -13 CHOII 12519313. .______.__~=.~:..."::'-.---....-..."'.-c~~_:.,---'-,..-------'--.-C---'7-:'-,~=:-.-.--:.-::-~"7~-~~;-:';"-_'_-'" - --~--- ~:-. _.-;-- .,"-:----.:---, 7'.-' -:'---'~--7--ó -~-:--:--_..- .. Lender or obligation of any Guator imder this Guarnty. Lender shall not be liable in any way for any decrease In the value or marketability of any propert securg any of Guarantor's Liabilities which may result from any action or omission of Lender in enforcing any par of this Guarty. (P) Subrogation. Until all of Guarantor's Liabilities have bee paid to Leder, and all period under applicable banptcy law for the contest of any payment by any Guartor as a preferential or fraudulent payment have expired Gutor knowingly and with advice of coUIel, waives, reliquishes, releases and abandons al rights and clais to indemfication, contrbution, reimburment, subrogation and payment which Guartor may now or herfter have by and from Borrower and Borrower's successors and assigns, for any payments made by Gu¡itor to Lender, including without litaon, any rights wluch migh allow Borrower, Borrower's sucessors and assigns or credtors, or a trtee in bantcy of Borrower to clai in bantcy or any other silar procengs that any payment made by Borrower or Borrower's successrs and that such assigns to Lender was on behalf of or for the benefit of Guarantor and payment is recverble by Borrower, a creditor or trtee in banptc of Borro:wer as a preferential payment, frdulent conveyace, payment of an insider or any other classification of payment which may otherwse be recoverale .fom Lender. Guator fuer waives any defene based upon an election of remedes by Lender which destrys or otherwise imairs any subrogation rights of such Guarantor to proceed agat Borrower. (q) Joint and SeveraL. Guator's Liabilties shl be the joint and severl obligations and liabilies of Guator, Borrower an any other guartor of al or par of the Indebtedness or Obligations. Notwthstandig any provisions of th Guty to the contr, it is intended that the jaint and several rne of the liabilityiof Guator's Liabilities and the liens an secty interests, if any. grted as securty for the Indebtedess or Obligations, not consitute a frulent conveyance unde the Bantcy Code or a fruduen conveyace or frudulent tnfer under the applicable provisons of any frulent conveyce or frdulent trfer law or silar law of any state, nation or other goverenta unt, as in effect fr tIeto tie (a "Frandiilent Conveyance"). Consequently, if the liabilty of Guartor for Gitor's Liabilities, Dr any lien or secty interest grante by Guartor securg GuartDr's üabilities would, but for the aplicaton of ths sentence, constitute a Fraudulent Conveyace, the liabilty of Gutor and the liens and secty interes securg such liability sha be vaId and enorceable only to the maximum extent that would not cause such liability or such lien or secty inter to constue a Fraudulent Conveyance, but liability of Giltor hereunder shall be unected '- (r) Unconditional Obligati9ns. The obligaons of Gutor shal be unconditional, .iresecve of (i the instution of any proceedng under the Bantcy Code, or any simlar proceeing, by or agat Guator or Borrwer or Lender's election in any .such proeedg of th applicaton of Section 11l1(b )(2) of the Bankrtcy Code; (ii) any borrwing or grant of a secty - 14QlOlll2519313.l ::--,-,._----_._-.----:---- __,__-;_.-:.~:::_:~_-_,.7_:~:,_:_~.-~~,~,.O..---.-'-.-':-,.--:""~- -.--.----~,~-,_:._7'~-~~:_=::_-_:.=::_~.-"7:_:- interest by Borrower as debtor-in-possession, iner Section 364 of the Banptcy Code; (iii) the disalowance, under Section 502 of the Bantcy Code, of all or any porton of Lendcr's cIai(s) for repayment of any of Guarantor's Liabilities; or (iv) any other circumstace other than payment in full of Guarantor's Liabilities wruch might otherwise constitute a legal or equitile discarge or defense of a guantor. (s) Governing Law. TH TERMS OF THE LOAN AND THIS GUARTY WERE EACH NEGOTITED IN TH STATE OF ILLIoiS, WHCH STATE TH P ARTlES AGREE HAS A SUBSTANTIA RELATIONSHI TO TH PARTIE AN. TO THE UNERLYING LOAN TRASACTION, INCLUDING WITHOUT LIMTING THE GENERAITY OF THE FOREGOING, MATfRS OF CONSTRUCTION, VALITY AND PERFORMCE. THREFORE, THI GUARTY SHA BE CONSTRUED AN INTERPRETED WIH, AN GOVERND BY, TH INRNAL LAWS OF TH STATE OF ILUNOIS, WITHOUT GIVG EFFCT TO ILOiS CHOICE OF LAW PRICILE. ' (t) CONSENT TO JURISDICTON. GUAROR ACKNOwLEDGES THT LENDER'S PRICIPAL OFFICE is LOCATED IN CmCAGo, ILLINOIS AN THAT LENDER MAY BE IRPARLY HAD IF REQUlD TO INSTI OR DEFEND AN ACTION IN AN JUSDICTON OTHER TH THE FEDERA . -DISTRICT COURT FOR TH NORTHRN DISTRICT OF ILLINOIS; EASTERN DIVSION OR TH CICU COURT OF COOK COUN, ILLIOIS. THREFORE, GUAROR IRVOCABLY: (A) AGREES THAT AN SUI, ACTON OR OTHR LEGAL PROCEEDING RELATIG TO TmS GUAR MAY BE BROUGHT ONLY .I TH CmCUIT COURT OF COOK COUN OR FEDERA DISTRCT COURT FOR THE NORTHRN DISTRICl OF ILLIOIS, EASTERN DIVSION AT LENDER'S nPTION; (B) CONSENTS TO THE JUDICTION OF EACH SUCH COURT IN AN SUCH SUIT, ACTION OR PROCEEDING; (C) W Alv;S AN OBJEClION WICH HAVE TO TH LAYIG OFVENl IN AN SUCH MAY SmT, ACTON OR PROCEEDING IN AN OF SUCH COURTS; AN (D) GUAROR AGREES TO JOIN LENDER IN AN PETION FOR REMOVAL TO AN OF SUCH COURTS. (u) W A1 OF JUy TRAL. GUARTOR AN LENDER BY ITS ACCEPTANCE OF THI GUAR, HEREBY W.AIVE TH RESPECI RlGHTS TO A TR BY JUY IN AN ACTON OR PROCEEDING TO ENFORCE TiS GUAR OR BASED UPON OR ARSING OUT OF THE SUBCT MATTER OF THS GUARTY. THIS WAlVER IS KNOWIGLY, INENTIONALLY AN VOLUNARY MAE BY GUARTOR AN LENDER, AND GUAROR ACKNOWLDGES THT NEITHER LENDER NOR AN - 15 CHOII 12519313 B .., ___,__~_._:,,__-:,~_,,__-:..~_~-:.,..._.___ ---"'",--""=~-.'-:,7.~,--.-:;-~::,----~ --- -...:..:.::---:~-:-,.._~-.,_.._._,---.,~-~-,'------" PERSON ACTiNG ON BEHAF OF LENDER. HAS MAE AN REPRESENTATIONS OF FACT TO INUCE THIS WAIR OF TRI BY JURY OR HA TAK AN ACTIONS WHICH IN AN WAY MODIF OR NULLIFY ITS EFFECT. GUARTOR AND LENDER EACH ACKNOWLDGE 'THAT TilS WAIR is A MATERI INUCEMENT TO ENTER INO A BUSINSS RELATIONSHI, THAT EACH OF THEM HAS ALREADY RELIED ON TiS W AlVER IN ENTERING INO THS GUARTY AND THAT EACH OF THM WIL CONTI TO REY ON THI WAIR IN THEIR RELATED FURTHER DEALINGS. 8.Certin Proviions of the Loan Agreement. Without limiting Guator's Liabilities, Guartor acknowledges and agree to be personaly for the performance of the provisions of Sections 9.10 and 9.21 of ¡The remainder of bound by and liable the Loan Agreemenl this page is intentionaly blank; signature page follows.) - 16CHOU 12519313.8 _.. - -~". ---------:.-..--....-:--_-..--,-".-~_~:-~:".:_;__.~--c-.-:.-:_:.:-_-:-""-:.-_':_"'-_..-:';-~~~"'- ---" . -----::;.-;;::.-~-;---c--::--:--.-"'-.-,_.-..~~;_;_.. ~-..-~_. ,--,- IN WITNESS WHEREOF, Guarator ha executed this Guaranty as of (he day _ an yea fist above written INTANCE CAPITAL CROUP, LLC, a Michian liited libility company rs, LLC, a Michigan By: .y, íts Manager By: Rob e Its: Manger - 17CHl/ 1:Z19i13 g ~.__:-.~.~__.:_",.. __. .._-, .----c_-~~~".,,~...~~_:_~~.:..,-_::_-;_.-:::::,...;_-----.-~:::_~-..__:--:,.~,._~:--:~~~---~-::"~.C"" ...---.--:----..----:~.-:---.,-.:-.- .,----.-.-..,--.--.----.----"
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
