Exhibit 10.100


 


GUARANTY
AGREEMENT


 


THIS GUARANTY AGREEMENT
(“Guaranty”) is made as of the 27th day of October, 1999, by the undersigned
(hereinafter referred to as “Guarantors” whether one or more), in favor of BEAL
BANK, S.S.B., a state savings bank (“Lender”).


 


W
I T N E S S E T H:


 


A.                                    Lender has agreed to make a loan (the
“Loan”) to HUNTLEY DEVELOPMENT LIMITED PARTNERSHIP, an Illinois limited
partnership (“Borrower”), in the maximum principal amount of $10,000,000.00,
evidenced by that one certain Promissory Note (the “Note”), of even date
herewith, in the stated principal amount of $10,000,000.00, secured by
documents including a Mortgage, Security Agreement and Assignment of Leases and
Rents, executed by Borrower (the “Mortgage”), which Note and Mortgage are being
executed and delivered contemporaneously herewith.


 


B.                                    One of the conditions to Lender’s
agreement to make the Loan is that Guarantors, jointly and severally, guarantee
to Lender the full and timely payment of the Loan and the performance and payment
of all debts, duties and obligations of Borrower under the Note, Mortgage and
other documents executed in connection with the Loan (collectively, the “Loan
Documents”), whether or not Borrower has personal liability thereunder, and the
payment and performance of all other present and future indebtedness and
obligations of Borrower to Lender.


 


NOW, THEREFORE, as a material inducement to Lender to
make the Loan to Borrower, and for further good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and confessed, each
Guarantor does hereby, unconditionally, irrevocably and absolutely, jointly and
severally, warrant and represent to and covenant and agree with Lender as
follows:


 


1.                                      Guaranty of Obligation.


 


(a)                                  The Guarantors unconditionally,
irrevocably and absolutely, jointly and severally, guarantee to Lender (i) that
all obligations and indebtedness evidenced by or provided in the Note, the
Mortgage and the other Loan Documents will be promptly paid when due and in accordance
with the terms and provisions thereof (and as they may be amended, extended or
renewed from time to time), and (ii) the prompt and full payment, performance
and observance, when due, of all other indebtedness, liabilities, obligations
and duties of every kind and character of Borrower to Lender relating in any
way to the Loan, whether absolute or contingent, joint or several, secured or
unsecured, due or not due, contractual or tortious, liquidated or unliquidated,
arising by operation of law or otherwise, direct or indirect relating in any
way to the Loan, and including, but not limited to, any debt, obligation or
liability of Borrower to Lender as a member of any partnership, syndicate,


 


1

















 


association or other group, or whether incurred by
Borrower as principal, surety, endorser, accommodation party or otherwise;
including, without limitation, interest on all of the above amounts as agreed
upon between Borrower and Lender, or if there is no agreement, at the Default
Rate, as defined in the Note, and any and all renewals, extensions and
rearrangements of all or any part of the indebtedness, obligations and
liabilities hereinabove described.


 


(b)                                 All indebtedness, duties, obligations and
liabilities described above or otherwise covered by this Guaranty, or intended
so to be, are hereinafter sometimes collectively referred to as the “Guaranteed
Indebtedness”.


 


2.                                      Continuing Guaranty. This
is a continuing guaranty and shall continue to apply without regard to the form
or amount of indebtedness or obligation which Borrower may create, renew,
extend or alter in whole or in part, without notice to Guarantors. The
circumstance that at any time or from time to time the Guaranteed Indebtedness
may be paid or performed in full shall not affect the obligation of Guarantors
with respect to indebtedness, obligations or liabilities of Borrower to Lender
incurred or arising thereafter.


 


3.                                      Liability for Other Indebtedness. If  any
Guarantor is or becomes liable for any indebtedness owing by Borrower to Lender
by endorsement or otherwise other than under this Guaranty, such liability
shall not be in any manner impaired or affected hereby, and the rights of
Lender hereunder shall be cumulative of any and all other rights that Lender
may ever have against Guarantors. The exercise by Lender of any right or remedy
hereunder or under any other instrument, or at law or in equity, shall not
preclude the concurrent or subsequent exercise of any other right or remedy.
Without in any way diminishing the generality of the foregoing, it is
specifically understood and agreed that this Guaranty is given by Guarantors as
an additional guaranty to any and all other guaranties heretofore or hereafter
executed and delivered to Lender by any Guarantor in favor of Lender relating
to indebtedness of Borrower to Lender, and nothing herein shall ever be deemed
to replace or be in lieu of any other of such previous or subsequent
guaranties.


 


4.                                      No  Release From Obligations. The
obligations, covenants, agreements and duties of Guarantors under this Guaranty
shall not be released or impaired in any manner whatsoever, without the written
consent of Lender, on account of any or all of the following: (a) any
assignment, endorsement or transfer, in whole or in part, of the Guaranteed
Indebtedness, although made without notice to or the consent of any Guarantor;
(b) any waiver by Lender of the performance or observance by Borrower or any
Guarantor of any of the agreements, covenants, terms or conditions contained in
any document evidencing, governing or securing the Guaranteed Indebtedness; (c)
any extension of the time for payment or performance of all or any portion of
the Guaranteed Indebtedness; (d) the renewal, rearrangement, modification or
amendment (whether material or otherwise) of any duty, agreement or obligation
of Borrower set forth in any document evidencing, governing or securing any of
the Guaranteed Indebtedness; (e) the voluntary or involuntary liquidation, sale
or other disposition of all or substantially all of the assets of Borrower or
any Guarantor; (f) any receivership, insolvency, bankruptcy, reorganization or
other similar proceedings or lack of corporate or partnership power, affecting
Borrower or any Guarantor or any of the assets of Borrower or any Guarantor;
(g) any release, withdrawal, surrender, exchange, substitution, subordination
or loss of any security or other guaranty at any time existing in connection
with all or any portion of the Guaranteed Indebtedness, or the acceptance of
additional or substitute property as security therefor; (h) the release or
discharge of Borrower or any other obligor from the observance or performance
of any agreement, covenant, term or condition contained in any document


 


2

















 


evidencing, governing or securing any of the
Guaranteed Indebtedness; (i) any action which Lender may take or omit to take
by virtue of any document evidencing, governing or securing any of the
Guaranteed Indebtedness or through any course of dealing with Borrower; 0) the
addition of a new guarantor or guarantors; (k) the operation of law or any
other cause, whether similar or dissimilar to the foregoing; (1) any
adjustment, indulgence, forbearance or compromise that may be granted or given
by Lender to any party; (m) the failure by Lender to file or enforce a claim
against the estate (either in administration, bankruptcy or other proceeding)
of Borrower or any other person or entity; (n) if the recovery from Borrower or
any other person or entity becomes barred by any statute of limitations or is
otherwise prevented; (o) any defenses, set-offs or counterclaims which may be
available to Borrower or any other person or entity; (‘,)any impairment,
modification, change, release or limitation of liability of’ or stay of actions
of lien enforcement proceedings against, Borrower, its property, or its estate
in bankruptcy resulting from the operation of any present or future provision
of the Bankruptcy Code or any other similar federal or state statute, or from
the decision of any court; or (q) any neglect, delay, omission, failure or
refusal of Lender to take or prosecute any action for the collection of any of
the Guaranteed Indebtedness or to foreclose or take or prosecute any action in
connection with any lien, security interest or other right of security
(including perfection thereof), existing or to exist in connection with, or as
security for, any of the Guaranteed Indebtedness, it being the intention hereof
that each Guarantor shall remain liable as principal on the Guaranteed
Indebtedness, notwithstanding any act, omission or thing which might, but for
the provisions hereof’ otherwise operate as a legal or equitable discharge of
any Guarantor.


 


5.                                      Payment and Performance of Obligations. If
an Event of Default, as defined in the Mortgage, occurs, Guarantors shall,
without notice or demand, and without any notice having been given to
Guarantors of the acceptance by Lender of this Guaranty and without any notice
having been given to Guarantors of the creating or incurring of such
indebtedness, pay the amount due thereon to Lender, at its office in Dallas,
Texas, or at such other place as may be designated in writing by Lender, and it
shall not be necessary for Lender, in order to enforce such payment by any
Guarantor, first, to institute suit or exhaust its remedies against Borrower or
others liable on such indebtedness, or to enforce its rights against any
security which shall ever have been given to secure such indebtedness.


 


6.                                      Waiver of Notice. Notice
to Guarantors of the acceptance of this Guaranty and of the making, renewing or
assignment of the Guaranteed Indebtedness and each item thereof’ are hereby
expressly waived by each Guarantor.


 


7.                                      Payments by Borrower. Each  payment
on the Guaranteed Indebtedness shall be deemed to have been made by Borrower
unless express written notice is given to Lender at the time of such payment
that such payment is made by a Guarantor(s) as specified in such notice.


 


8.                                      Releases and Waivers. If
all or any part of the Guaranteed Indebtedness at any time be secured,
Guarantors agree that Lender may at any time and from time to time, at its
discretion and with or without valuable consideration, allow substitution or
withdrawal of collateral or other security and release collateral or other
security without impairing or diminishing the obligations of Guarantors
hereunder. Guarantors further agree that if Borrower executes in favor of
Lender any collateral agreement, deed of trust or other security instrument,
including, without limitation, the Mortgage, the exercise by Lender of any
right or remedy thereby conferred on Lender shall be wholly discretionary with
Lender, subject, however, to all applicable notice and opportunity to cure
provisions set forth in the Loan Documents, and that the exercise or failure to
exercise any such right


 


3

















 


or remedy shall in no way impair or diminish the
obligations of Guarantors hereunder. Guarantors further agree that Lender shall
not be liable for its failure to use diligence in the collection of any of the
Guaranteed Indebtedness or in preserving the liability of any person liable on
the Guaranteed Indebtedness, and Guarantors hereby waive presentment for
payment, notice of nonpayment, protest and notice thereof’ notice of
acceleration, and diligence in bringing suits against any person liable on the
Guaranteed Indebtedness, or any part thereof.


 


9.                                      No Release of Guarantor. If
the Guaranteed Indebtedness at any time exceeds the amount permitted by law, or
Borrower is not liable because the act of creating the Guaranteed Indebtedness
is ultra vires, or the officers or persons creating the Guaranteed Indebtedness
acted in excess of their authority, or for any other reason, and for any of
these reasons the Guaranteed Indebtedness which Guarantors agree to pay cannot
be enforced against Borrower, such fact shall in no manner affect any
Guarantor’s liability hereunder, but each Guarantor shall be liable under this
Guaranty notwithstanding that Borrower is not liable for the Guaranteed
Indebtedness, to the same extent such Guarantor would have been liable if the
Guaranteed Indebtedness had been enforceable against Borrower.


 


10.                               Optional Acceleration. In the event of the dissolution or insolvency of Borrower, or the
inability of Borrower to pay its debts as they mature, or an assignment by
Borrower for the benefit of creditors, or the institution of any proceedings by
or against Borrower under the federal bankruptcy laws alleging that Borrower is
insolvent or unable to pay its debts as they mature, or if any of the foregoing
events occur with respect to any Guarantor, and if such event shall constitute
an Event of Default, as defined in the Mortgage, and shall occur at a time when
any of the Guaranteed Indebtedness may not then be due and payable, such
Guaranteed Indebtedness, at the option of Lender, shall thereupon be deemed to
be immediately due and payable in full, and Guarantors shall pay to Lender
forthwith the lull amount which would be payable hereunder if all Guaranteed
Indebtedness were then due and payable.


 


11.                               Successors and Assigns. This
Guaranty is for the benefit of Lender, its successors and assigns, and in the
event of an assignment by Lender, or its successors or assigns, of the
Guaranteed Indebtedness, or any part thereof, the rights and benefits
hereunder, to the extent applicable to the indebtedness so assigned, may be
transferred with such indebtedness.


 


12.                               Modifications and Waivers: Cumulative Rights.  No modification, consent, amendment or
waiver of any provision of this Guaranty, nor consent to any departure by any
Guarantor therefrom, shall be effective unless the same shall be in writing and
signed by an officer of Lender, and then shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on any
Guarantor in any case shall, of itself’ entitle such Guarantor to any other or
further notice or demand in similar or other circumstances. No delay or
omission by Lender in exercising any power or right hereunder shall impair any
such right or power or be construed as a waiver thereof or any acquiescence
therein, nor shall any single or partial exercise of any such power preclude
other or further exercise thereof, or the exercise of any other right or power
hereunder. All rights and remedies of Lender hereunder are cumulative of each
other and of every other right or remedy which Lender may otherwise have at law
or in equity or under any other contract or document, and the exercise of one
or more rights or remedies shall not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies. In this Guaranty, whenever the
context so requires, the singular number includes the plural, and conversely.


 


4

















 


13.                               Compliance  with
Laws. No
provision herein or in any promissory note, instrument or any other loan
document executed by Borrower or any Guarantor evidencing, governing or
securing the Guaranteed Indebtedness shall require the payment or permit the
collection of interest in excess of the maximum permitted by law. If any excess
interest in such respect is provided for herein or in any such promissory note,
instrument, or any other Loan Document, the provisions of this paragraph shall
govern, and neither Borrower nor any Guarantor shall be obligated to pay the
amount of such interest to the extent that it is in excess of the amount
permitted by law. The intention of the parties is to conform strictly to the
usury laws now in force, and all promissory notes, instruments and other loan
documents executed by Borrower or any Guarantor evidencing the Guaranteed
Indebtedness shall be held subject to reduction of the interest charged to the
amount allowed under said usury laws as now or hereafter construed by the
courts having jurisdiction.


 


14.                               Benefit  to
Guarantors. Guarantors
acknowledge and warrant that each Guarantor has derived or expects to derive
financial and other advantage and benefit, directly or indirectly, from the
Guaranteed Indebtedness and each and every advance thereof and from each and
every renewal, extension, release of collateral or other relinquishment of
legal rights made or granted or to be made or granted by Lender to Borrower.


 


15.                               Attorney’s Fees and Collection Costs. If
any Guarantor should breach or fail to perform any provision of this Guaranty,
Guarantors agree to pay to Lender all reasonable costs and expenses (including
court costs and reasonable attorneys’ fees to the extent enforceable under the
laws of the State of Texas) incurred by Lender in the enforcement hereof.


 


16.                               Guarantor’s Warranties. Guarantors
hereby warrant and represent unto Lender the


following:


 


(a)                                  Each Guarantor has received or will
receive, direct or indirect benefit from the making of this Guaranty;


 


(b)                                 Each and every warranty and
representation made by Borrower in the Loan Documents is true and correct;


 


(c)                                  This Guaranty constitutes a legal, valid
and binding obligation of each Guarantor, and is fully enforceable against each
Guarantor in accordance with its terms, subject to the effects on
enforceability of applicable Debtor Relief Laws, as defined in the Mortgage;


 


(d)                                 Any and all balance sheets, net worth
statements and other financial data that have heretofore been given to Lender
with respect to Guarantors fairly present the financial condition of each
Guarantor as of the date thereof and, since the date thereof’ there has been no
material, adverse change in the financial condition of any Guarantor;


 


(e)                                  Except as may be set out on Exhibit “A”
attached hereto and made a part hereof for all purposes, (i) there are no legal
proceedings, claims or demands pending against, or to the knowledge of any
Guarantor, threatened against, any Guarantor or any Guarantor’s assets, with
respect to which an adverse decision is reasonably likely which would
materially and adversely affect the ability of such Guarantor to perform its
obligations hereunder, (ii) no


 


5

















 


Guarantor is in breach or default of any material
legal requirement, contract or commitment, and (iii) no event (including
specifically Guarantors= execution and delivery of this Guaranty) has occurred
which, with the lapse of time or action by a third party, could result in any
Guarantor’s breach or default under any material legal requirement, contract or
commitment; and


 


(f)                                    Guarantors hereby agree to furnish to
Lender from time to time, but no more than one time per calendar year promptly
upon request therefor, current financial reports and statements setting out in
complete and accurate detail each Guarantor’s financial condition at the time
of such request, containing such information as Lender may reasonably request,
and prepared in accordance with generally accepted accounting principles
consistently applied or in other form acceptable to Lender, in the exercise of
its reasonable discretion.


 


17.                               Subordination and No Subrogation. If,
for  any
reason whatsoever, Borrower now or hereafter becomes indebted to  any
Guarantor, such indebtedness and all interest thereon, shall, at all times, be
subordinate in all respects to the Loan Documents, and such Guarantor shall not
be entitled to enforce or receive payment thereof until the Guaranteed
Indebtedness has been fully paid and satisfied. Notwithstanding anything to the
contrary contained in this Guaranty or any payments made by any Guarantor
hereunder, no Guarantor shall have any right of subrogation in or under the
Loan Documents or to participate in any way therein, or any right, title or
interest in and to any mortgaged property or any collateral for the Guaranteed
Indebtedness, all such rights of subrogation and participation being hereby
expressly waived and released, until the Guaranteed Indebtedness has been fully
paid and satisfied.


 


18.                               Law Governing and Jurisdiction. This
Guaranty shall be governed by and construed in accordance with the laws of the
State of Texas and is performable in Dallas County, Texas.


 


19.                               Severability. If any provision of this Guaranty or the
application thereof to any person or circumstance shall, for any reason and to
any extent, be invalid or unenforceable, neither the remainder of this Guaranty
nor the application of such provision to any other persons or circumstances
shall be affected thereby, but rather the same shall be enforced to the
greatest extent permitted by law.


 


20.                               Counterparts. This Guaranty may be executed in
multiple counterparts, each of which shall be an original, but all of which
shall constitute but one instrument.


 


21.                               Paragraph Headings. The
paragraph headings inserted in this Guaranty have been included for convenience
only and are not intended, and shall not be construed, to limit or define in
any way the substance of any paragraph contained herein.


 


22.                               Compounding and Settlement. Guarantors
agree that Lender, in its discretion, may (i) bring suit against Guarantors
jointly and severally or against any one or more of them, (ii) compound or
settle with any one or more of Guarantors for such consideration as the Lender
may deem proper, and (iii) release one or more of the Guarantors from liability
hereunder or otherwise in regard to the Guaranteed Indebtedness, and that no
such action shall impair the rights of Lender to collect the Guaranteed
Indebtedness (or the unpaid balance thereof) from other Guarantor(s), or any of
them, not so sued, settled with or released. Guarantors agree among themselves,
however, that nothing contained in this paragraph, and no action by Lender
permitted under this paragraph, shall in


 


6

















 


any way affect or impair the rights or obligations of
Guarantors among themselves.


 


23.                               Consent to Jurisdiction. Each
Guarantor hereby irrevocably submits, for such Guarantor and in respect of such
Guarantor’s property, generally and unconditionally, at the election of Lender,
to the jurisdiction of the courts of the State of Texas or of the United States
of America for the State of Texas over any suit, action or proceeding arising
out of or relating to this Guaranty. Each Guarantor irrevocably waives, to the
fullest extent permitted by law, any objection which such Guarantor may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding brought in any such court that such suit has been brought in an
inconvenient forum. Each Guarantor agrees that final judgment in any such suit,
action or proceeding brought in any such court shall be conclusive and binding
upon such Guarantor and may be enforced in the courts of Texas by a suit upon
such judgment, a certified or exemplified copy of which shall be conclusive
evidence of the fact and of the amount of such Guarantor’s indebtedness,
provided that service of process is effected upon such Guarantor in one of the
manners specified herein or as otherwise permitted by law.


 


24.                               Service of Process. Each
Guarantor hereby irrevocably consents to process being served in any suit,
action or proceeding hereunder (a) by serving a copy thereof upon Borrower
and/or the Secretary of State of the State of Texas, as such Guarantor’s agents
for service of process (provided a copy shall be mailed by registered or
certified mail, postage prepaid, return receipt requested, to such Guarantor at
its address specified below, or to any other address which such Guarantor shall
have designated by written notice to Lender), or (b) if such service is
impossible or impracticable in the sole judgment of the party serving such
process, by the mailing of a copy thereof by registered or certified mail,
postage prep aid, return receipt requested, to such Guarantor at its address
set forth below or to any other address which such Guarantor shall have
designated by written notice to Lender. Each Guarantor irrevocably waives, to
the fullest extent permitted by law, all claims of error by reason of any such
service and agrees that such service (i) shall be deemed in every respect
effective service of process upon such Guarantor in any such suit, action or
proceeding, and (ii) shall, to the fullest extent permitted by law, be taken
and held to be valid personal service upon personal delivery to such Guarantor.
Nothing in this section, shall affect the rights of Lender to serve process in
any manner permitted by law or limit the right of Lender to bring proceedings
against any Guarantor in the competent courts of any jurisdiction of
jurisdictions.


 


EXECUTED AND DELIVERED on the date first above recited.


 


 


	
  ADDRESS FOR
  NOTICE:

  	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE PRIME GROUP,
  INC., an

  
	
   

  	
   

  	
  Illinois corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  77
  West Wacker Drive

  	
   

  	
  By:

  	
   

  	
   

  
	
  Suite 4200

  	
   

  	
   

  	
  Name:  Gary
  Skoien

  
	
  Chicago, Illinois 60601

  	
   

  	
   

  	
  Title:  Executive Vice President

  
	
  Attn:  Gary
  Skoien

  	
   

  	
   

  



 


7

















 


EXHIBIT “A”


 


None.


 


8