GUARANTY
THIS GUARANTY is executed and delivered as of October 15,
1998, by Xxxxxxxxxx-Xxxxxx Properties, L.L.C., a Kansas limited
liability company, having an address at 00000 Xxxxxxx, Xxxxxxx,
Xxxxxx 00000 ("C.W. Properties"), G. Xxxxxxx Xxxxxx,
individually, ("X.X. Xxxxxx"), Xxxxxx X. Xxxxxxxxxx,
individually, ("X. Xxxxxxxxxx"), G. Xxxxxxx Xxxxxx, as trustee
u/d/t dated July 19, 1991 as such Trust may be amended from time
to time (the "Trust"), (each jointly and severally and each of
C.W. Properties, X.X. Xxxxxx, X. Xxxxxxxxxx and the Trust being
hereinafter referred to collectively as, the "Guarantor") in
favor of Lombard Partners, L.P., a Missouri limited partnership
having an address at 000 Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx
00000 (the "Partnership").
WITNESSETH THAT:
WHEREAS, concurrently with the execution of this Guaranty,
Xxxxxxxxxx-Xxxxxx Properties, L.L.C., a State of Missouri limited
liability company, and (the "General Partner") and BCTC 94, Inc.,
a Massachusetts corporation (the "Special Limited Partner") and
Boston Capital Tax Credit Fund IV, L.P. a Massachusetts limited
partnership (the "Investment Partnership"), have entered into
that certain Lombard Partners, L.P. Amended and Restated
Agreement of Limited Partnership of the Partnership (the
"Agreement") pursuant to which the General Partner has agreed,
inter alia, (i) to make certain Excess Development Cost advances
and Operating Deficit Loans, (ii) to repurchase the Investment
Partnership's Interest in certain circumstances, (iii) to
guaranty payment of the Asset Management Fee and the Development
Fee and (iv) to repay certain Credit Recovery Loans (as such
terms are defined in the Agreement) and the Investment
Partnership has agreed to contribute capital to the Partnership
according to the terms and conditions set forth therein, a true
copy of which is attached hereto as Exhibit A, by this reference
fully incorporated herein; and
WHEREAS, the Guarantor acknowledges that the Investment
Partnership, as a condition precedent to the making of said
capital contributions, has required the execution of this
Guaranty by the Guarantor and that the Investment Partnership is
relying upon same in making said capital contributions; and
WHEREAS, the Guarantor deems it to be in the Guarantor's
financial advantage and benefit to execute this Guaranty in light
of the Guarantor's financial interests in the Partnership.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Guarantor agrees
as follows:
1. The Guarantor hereby jointly and severally, absolutely
and unconditionally, guaranties, irrespective of the validity or
enforceability of the Agreement or security therefor, the due and
punctual performance of the General Partner's obligations,
including, without limitation, the General Partner's obligations
(i) to make certain Excess Development Cost advances and
Operating Deficit Loans in an amount of not greater than $250,000
during the five year period following Rental Achievement, all as
set forth in Section 8.09(b) of the Agreement, (ii) to repurchase
the Investment Partnership's Interest in certain circumstances,
(iii) to guaranty payment of the Asset Management Fee and the
Development Fee and (iv) to repay certain Credit Recovery Loans
(as such terms are defined in the Agreement); all of such
guaranteed obligations being hereinafter sometimes referred to as
the "Obligations".
2. Except to the extent prohibited by law, the Guarantor
expressly waives the following: presentment and demand for
payment or performance of any of the Obligations or this
Guaranty, notice of default or nonpayment of the Obligations
under the Agreement or hereunder, and any other notice or demand
required by law and lawfully waivable by Guarantor and not
otherwise explicitly required hereunder; any defenses otherwise
available to a surety or guarantor; any right to require suit
against the General Partner or any other party before enforcing
this Guaranty; and any right of subrogation to the Partnership's
rights against the General Partner until the Obligations are paid
or performed in full.
3. The Guarantor hereby consents and agrees that renewals
and extensions of time of payment, surrender, release, exchange,
substitution, dealing with or taking of additional collateral
security, making advances to perform Obligations then in default,
taking or release of other guarantees, abstaining from taking
guarantees, waivers of any defaults, rights or remedies and any
and all other forbearances or indulgences granted to the General
Partner or any other party may be made, granted and/or effected
without notice to the Guarantor and without in any manner
affecting any of the Guarantor's liability hereunder.
4. The Guarantor agrees that the Guarantor shall remain
bound under this Guaranty and that the Guarantor's obligations
hereunder shall not be discharged, modified or in any way limited
by the recovery of any judgment against the General Partner or
any other Guarantor or obligor for the Obligations, any action to
enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of the
Guarantor except for final payment and performance in full of all
of the Obligations in accordance with their respective terms and
in accordance with this Guaranty. The Guarantor further agrees
that the invalidity, irregularity or unenforceability of all or
any part of the Obligations or any security therefor shall not
affect, impair or be a defense to this Guaranty or discharge,
modify or in any way limit the liability of the Guarantor
hereunder. No modification, release, limitation or rendering
void of the liabilities of the General Partner or of any other
guarantor(s) of Obligations which occurs in or as a result of the
operation of any existing or future federal or state laws
affecting the rights of creditors, including without limitation
the Federal Bankruptcy Code, shall discharge, modify or in any
way limit the Guarantor's liability hereunder. If at any time
all or any part of any previous payment applied to any of the
Obligations must be returned by the recipient for any reason,
whether as a result of a court order, administrative order,
settlement or otherwise, the Guarantor is and shall remain
jointly and severally liable hereunder for the full amount
returned as if such amount had never been received by the
recipient, notwithstanding any termination of this Guaranty or
the cancellation of any of the Agreement or any other instrument
or other agreement evidencing any or all of the Obligations.
5. In the event that the Partnership or the Investment
Partnership (or any partner of the Investment Partnership)
becomes liable under any statute, regulation, ordinance or other
provision of federal, state or local law pertaining to the
protection of the environment or otherwise pertaining to public
health or employee health and safety, including, without
limitation, protection from hazardous waste, lead-based paint,
asbestos, methane gas, urea formaldehyde insulation, oil, toxic
substance, underground storage tanks, polychlorinated biphenyls
(PCBs), and radon, the Guarantor shall jointly and severally
indemnify and hold harmless the Partnership and the Investment
Partnership (and any partner of the Investment Partnership) for
any and all costs, expenses (including reasonable attorneys'
fees), damages or liabilities to the extent that the Partnership
or the Investment Partnership (or any partner of the Investment
Partnership is required to discharge such costs, expenses,
damages or liabilities in whole or in part from any source. The
foregoing indemnification shall be a recourse obligation of the
Guarantor and shall survive the dissolution of the Partnership
and/or the insolvency or bankruptcy of the Guarantor.
6. The Partnership and the Guarantor agree that so long as
the Obligations hereunder remain outstanding, the Investment
Partnership shall be a third party beneficiary under this
Agreement and shall be entitled to enforce the provisions hereof
as if it were a party hereto. The Guarantor hereby irrevocably
authorizes and empowers the Investment Partnership, and
irrevocably appoint the Investment Partnership, the Guarantor's
attorney-in-fact, to demand, xxx for, collect and receive every
payment or advance due under the obligations and give security
therefor and to file and invoke claims and such other proceedings
in their names as the Investment Partnership may deem necessary
or advisable to enforce the obligations under this Guaranty.
7. Any notice to the Guarantor by the Partnership or the
Investment Partnership at any time shall not imply that such
notice or any further or similar notice was or is required. Any
notice, demand, request or other communication given hereunder or
in connection herewith (the "Notices") shall be deemed sufficient
if in writing including telegraphic, telexed or telecopied
communication, mailed, telegraphed, telexed or telecopied to the
party to receive such Notice at such party's address first set
forth above or at such other address as such party may hereafter
designate by Notice given in like fashion. Notices shall be
deemed given when received.
8. The Guarantor further jointly and severally agrees to
pay and/or reimburse the Partnership and Investment Partnership
for any and all costs, expenses and reasonable attorneys' fees
paid or incurred by the Partnership or the Investment Partnership
in enforcing or collecting or endeavoring to enforce or collect
the Obligations or in enforcing or endeavoring to enforce this
Guaranty, to the extent that the Partnership and/or the
Investment Partnership prevails in any such enforcement or
collection.
9. The Guarantor agrees that any and all existing or future
indebtedness, liability or obligations of the General Partner to
the Guarantor are and shall be fully subordinated to the
Obligations until payment and/or performance of the Obligations
in full so that during the continuance of any Event of Default
under the Agreement with respect to the Obligations the Guarantor
shall not be entitled to receive any amount due on any such
indebtedness, liability or obligation of the General Partner to
the Guarantor and in any event the Guarantor shall not accelerate
same or exercise any remedies thereunder unless the Partnership
or the Investment Partnership do so.
10. The Guarantor further covenants and agrees that during
such time as this Guaranty is in effect, the Guarantor will not
make or permit any substantial diminution in the Guarantor's net
worth (except as a result of guarantees and other transactions in
the ordinary course of the Guarantor's business) without having
first obtained the Investment Partnership's written consent
therefor.
11. The Guarantor consents and agrees to, and ratifies and
confirms, all terms, covenants, promises, agreements or other
provisions of the Agreement which expressly apply to the
Guarantor.
12. All rights and remedies afforded to the Partnership and
the Investment Partnership by reason of this Guaranty, the
Agreement, or by law are separate and cumulative and the exercise
of one shall not in any way limit or prejudice the exercise of
any other such rights or remedies. No delay or omission by the
Partnership or the Investment Partnership in exercising any such
right or remedy shall operate as a waiver thereof. No waiver of
any rights or remedies hereunder, and no modification or
amendment hereof, shall be deemed made by the Partnership or the
Investment Partnership unless in writing and duly signed by the
Partnership or the Investment Partnership. Any such written
waiver shall apply only to the particular instance specified
therein and shall not impair the further exercise of such right
or remedy or of any other right or remedy by the Partnership or
the Investment Partnership, and no single or partial exercise of
any right or remedy hereunder shall preclude any other or further
exercise thereof or of any other right or remedy.
13. The Guarantor irrevocably:
(i) agrees that any suit, action, or other legal proceeding
arising out of this Guaranty may be brought in the courts of
record of the State of Missouri or the courts of the United
States located in the State of Missouri; and
(ii) consents to the jurisdiction of each such court in any
such suit, action or proceeding; and
(iii) waives any objection which either may have to the
laying of venue of such suit, action or proceeding in any
such courts and waive any right to a trial by jury in any of
such courts.
14. This Guaranty shall operate as a continuing, joint and
several Guaranty of the Obligations, and shall be binding upon
the Guarantor and the Guarantor's successors and assigns and
shall inure to the benefit of the Partnership and the Investment
Partnership and its successors and assigns. This Guaranty shall
be governed by and construed in accordance with the laws of the
State of Missouri.
15. The provisions of this Guaranty are severable. Any
provision of this Guaranty which is prohibited or unenforceable
will be ineffective to the extent of such prohibition or
unenforceability without invalidating or modifying the remaining
provisions of this Guaranty. Any such prohibited or
unenforceable provision will be reformed to the extent necessary
to make it enforceable in a manner carrying out the intention of
the parties as nearly as is possible.
16. Capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Agreement.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty
to be duly executed under seal as of the date first written
above.
WITNESS:
_______________________________
GUARANTOR:
Xxxxxxxxxx-Xxxxxx Properties.
L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx,
Manager
_______________________________
By: /s/ G. Windsor Xxxxxx
X. Xxxxxxx Xxxxxx
_______________________________
/s/ Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx
_______________________________
Xxxxxxx Xxxxxx Trust
u/d/t dated July 19, 1991
/s/ G. Windsor Xxxxxx
X. Xxxxxxx Xxxxxx, as Trustee
EXHIBIT A
[Attach copy of [NAME OF PARTNERSHIP AGREEMENT]]
