Compass [GRAPHIC OMITTED]
Bank
CONTINUING GUARANTY
(UNLIMITED)
(1) FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, the undersigned (hereinafter called "Guarantors"), jointly
and severally unconditionally guarantee and promise to pay to COMPASS BANK
(hereinafter called '"Bank" or order in lawful money of the Unites States, any
and all Indebtedness of XXXXXXX PROPERTIES RESIDENTIAL, L.P., a Georgia limited
partnership (hereinafter called "Borrowers" to Bank. The word 'Indebtedness" is
used herein in its most comprehensive sense and includes any and all advances,
debts, obligations and liabilities of Borrowers or any one or more of them to
Bank, heretofore, now, or hereafter existing, made, incurred or created, whether
voluntary or involuntary and however arising, whether due or not due, absolute
or contingent, liquidated or unliquidated, determined or undetermined, not
limited to, but including principal, interest, cost of collection, attorney's
fees and all other lawful charges, and whether Borrowers may be liable
individually or jointly with others, or whether recovery upon such Indebtedness
maybe or hereafter become barred by any statute of limitations, or whether such
Indebtedness may be now or hereafter become otherwise unenforceable.
(2) The liability of Guarantors shall be unlimited and shall cover all
Indebtedness of Borrowers to Bank. This is a continuing guaranty relating to any
Indebtedness, including Indebtedness arising under successive transactions which
shall either continue Indebtedness or from time to time renew Indebtedness after
such Indebtedness has been satisfied. This Guaranty shall remain in effect until
Bank's written acknowledgment of Bank's receipt of written notice of revocation
by one or more Guarantors as to future transactions, and even after Bank's
receipt and acknowledgment or revocation, this Guaranty shall remain effective
as to Indebtedness then outstanding, and as to all advances or extensions of
credit made to or on behalf of Borrowers subsequent thereto pursuant to any
commitment or credit arrangement relating to any Indebtedness in effect at the
time of Bank's acknowledgment of revocation which commitment or credit
arrangement permits, provides for or obligates Bank to make such advance or
extension of credit, including any construction loan, line of credit or letter
of credit. A notice of revocation shall be effective only with respect to those
of the Guarantors (if more than one) as shall have given notice of revocation as
specified herein. Notwithstanding anything to the contrary contained or implied
herein or in any other document, this Guaranty may not be revoked or terminated,
other than with the prior written consent of the Bank, except upon strict
compliance with the conditions and requirements heretofore set forth in this
Section (2), and this Guaranty will not be revoked or terminated by any action,
event or circumstance, including payment in full of all of the Indebtedness. In
the event any sums or other things of value that are paid or transferred to or
otherwise received by the Bank are rescinded, recovered, required to be
returned, set aside, rendered void or otherwise adversely affected in any legal
proceeding or for any cause whatsoever, including under any law, rule or
regulation relative to bankruptcy, insolvency, fraudulent transfers or other
relief of debtors, then this Guaranty shall continue to be effective or shall be
revived and reinstated, as necessary in order to give full effect to the
Guarantors' liability hereunder, to the same extent as if such payment, transfer
and/or receipt had never occurred. This Guaranty shall not release, modify,
revoke or terminate any other guaranty heretofore or hereafter executed by any
of the Guarantors; nor shall any other guaranty heretofore or hereafter executed
by any Guarantor release, modify, revoke or terminate this Guaranty unless such
other guaranty specifically refers to this Guaranty and the release,
modification, revocation or termination (as applicable) is accepted by Bank in
writing.
(3) The obligations of the Guarantors hereunder are joint and several, and
independent of the obligations of Borrowers, and a separate action or actions
may be brought and prosecuted against any one or more of the Guarantors whether
action if brought against Borrowers or any other Guarantor or whether any of the
Borrowers or other Guarantors are joined in any such action or actions.
(4) It is the intent hereof that this obligation of Guarantors shall be and
remain unaffected, (a) by the existence or non-existence, validity or
invalidity, of any pledge, assignment or conveyance given as security; or (b) by
any understanding or agreement that any other person, firm or corporation was or
is to execute this or any other guaranty, any of the notes evidencing the
Indebtedness, or any part thereof, or any other document or instrument or was or
is to provide collateral for any Indebtedness; or (c) by resort on the part of
Bank, or failure of Bank to resort, to any other security or remedy for the
collection of said Indebtedness; or (d) by the death, bankruptcy, insolvency,
dissolution or incapacitation of any of the Guarantors, any of the Borrowers or
any other person, and in case of any such death or bankruptcy, the failure of
Bank to file a claim against the deceased Guarantor's estate or against such
bankrupt's estate, or the failure of Bank otherwise to seek remedies as a
consequence of such events.
(5) Each of the Guarantors authorizes Bank, without notice or demand and
without affecting any Guarantor's liability hereunder, from time to time to (a)
renew, compromise, extend, accelerate, restate, consolidate, replace, refinance
or otherwise change the time for payment of, or otherwise change the terms of,
the Indebtedness or any part thereof, including increasing or decreasing the
rate of interest thereof; (b) take and hold security for the payment of this
Guaranty or any of the Indebtedness and/or exchange, modify, enforce, waive and
release any such security; (c) apply such security and direct the order or
manner of sale thereof as Bank in its discretion may determine; and/or (d)
release or substitute any one or more of the borrowers or other obligors,
endorsers or guarantors of all or any part of the Indebtedness (including,
without limitation, any one or more of the Guarantors).
(6) Each of the Guarantors waives any right to require Bank (a) to proceed
against any one or more of the Borrowers or Guarantors; (b) to protect,
preserve, proceed against or exhaust any security held from Borrowers; or (c) to
pursue any other remedy in Bank's power whatsoever. Each of the Guarantors
waives any defense arising by reason of any disability or other defense of any
one or more of the Borrowers or Guarantors (including any defense based on or
arising out of the unenforceability of any part of the Indebtedness for any
cause whatsoever) or by reason of the cessation from any cause whatsoever of the
liability of any one or more of the Borrowers or Guarantors. Until all
Indebtedness shall have been paid in full, Guarantors shall not have any rights
of subrogation, reimbursement, contribution or indemnity or any right of
recourse to any assets or properties of any of the borrowers or any of the other
Guarantors, and each of the Guarantors waives (i) all such rights, if any, of
subrogation, reimbursement, contribution, indemnity and recourse, (ii) any right
to enforce any remedy which Bank now has or may hereafter have against any one
or more of the Borrowers or any other Guarantor and (iii) any benefit of, and
any right of recourse to or to participate in any security now or hereafter held
by Bank or otherwise constituting collateral for any Indebtedness. Each of the
Guarantors waives all presentments, demands for performance, notices of
nonperformance, notice of acceleration, notice of intent to accelerate,
protests, notices of protest, notices of dishonor, and notices of acceptance of
this Guaranty and of the existence, creation, or incurrence of new or additional
Indebtedness, and waives any rights or defenses based, in whole or in part,
upon an offset by any one or more of the Borrowers or Guarantors against any
obligation or Indebtedness now or hereafter owned to any of the Borrowers or any
of the Guarantors (including to any Guarantor by any Borrower). Each of the
Guarantors waives the benefit of any statute of limitations or other defenses
affecting the Borrower's liability for the Indebtedness or the enforcement
thereof or such Guarantors liability hereunder or the enforcement thereof, and
each of the Guarantors further agrees that any payment by any of the Borrowers
or other circumstances that operate to toll any statute of limitations as to any
one or more Borrowers shall operate to toll statute of limitations as to each of
the Guarantors. Each of the Guarantors waives any rights to exemption under the
constitution of the State of Georgia or any other state as to any indebtedness
or obligation created hereunder.
(7) In addition to all liens upon, and rights of setoff against, moneys,
securities or other property of any one or more of the Guarantors given to Bank
by law, Bank shall have and hereby is granted a lien upon, security interest in
and a right of setoff against all moneys, securities and other property of each
of the Guarantors now or hereafter in the possession of or on deposit with Bank,
whether held in a general or special account or deposit, or for safekeeping or
otherwise; and every such lien, security interest or right of setoff may be
exercised without demand upon or notice to any of the Guarantors. No lien,
security interest or right of setoff shall be deemed to have been waived by any
act or conduct on the part of Bank, or by failure to exercise such right of
setoff or to enforce such lien or security interest, or by any delay in so
doing, and every right of setoff and lien shall continue in full force and
effect until such right of setoff or lien specifically is waived or released in
a written instrument executed by Bank.
(8) Any indebtedness of any Borrower to any Guarantor, whether now existing,
hereafter arising, secured or unsecured, and if secured, the security for same,
hereby is subordinated to the Indebtedness; and such subordinated indebtedness,
if Bank so requests, shall be collected, enforced and received by such Guarantor
as trustee for Bank and be paid over to Bank on account of the Indebtedness but
without reducing or affecting in any manner the liability of any Guarantor under
this Guaranty.
(9) Where any one or more of Borrowers or Guarantors are corporations,
partnerships, joint ventures, trusts, limited liability companies, business
organizations or enterprises, It shall not be necessary for Bank to inquire into
the power or authority of Borrowers or Guarantors or the officers, directors,
partners, trustees or agents acting or purporting to act on their behalf.
(10) Guarantors shall pay attorney's fees and all other costs and expenses
which are incurred by Bank in the enforcement of this Guaranty.
(11) No right or power of Bank hereunder shall be deemed to have been waived
by any act or conduct or failure or delay to act on the part of Bank or any of
its agents, employees or representatives; and the terms and provisions hereof
may not be waived, altered, modified, or amended except in writing duly signed
by a duly authorized officer of the Bank. In the event that Bank shall waive in
writing any provision or requirement hereunder, such waiver shall be effective
only for the specific purposes, circumstances and duration stated in said
waiver. Bank may without notice assign this Guaranty in whole or in part and
each reference herein to Bank shall be deemed to include its successors and
assigns. The provisions of the Guaranty are binding upon each of the Guarantors
and the heirs, distributees, executors, administrators, legal representatives,
personal representatives, successors and assigns thereof and shall inure to the
benefit of the Bank and each of its successors and assigns. THIS GUARANTY AND
THE RIGHTS AND OBLIGATIONS OF THE GUARANTORS AND THE BANK HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
Each of the Guarantors acknowledges that any cause of action arising under this
Guaranty will be a cause of action arising from an Georgia transaction and that
the Indebtedness is owing to a banking organization organized under Alabama law
or that has its principal place of business in Alabama, that it is foreseeable
that this Guaranty and the performance hereof have and will have significant
effects in the State of Georgia, and that Guarantors' execution of this Guaranty
will subject Guarantors to judicial jurisdiction in the State of Georgia. If any
of the provisions of this Guaranty or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of
the provisions of this Guaranty, or the application of such provision or
provisions to persons or circumstances other than those as to whom or which it
is held invalid or unenforceable, shall not be affected thereby, and every
provision of this Guaranty shall be valid and enforceable to the fullest extent
permitted by law. Except as expressly set forth in this Guaranty, this Guaranty
is the entire agreement of the Guarantors and the Bank with respect to the
guarantee of the Indebtedness by the Guarantors and no representation,
understanding, promise or condition concerning the subject matter hereof shall
be binding upon the Bank unless expressed herein. Any notice by a Guarantor to
the Bank shall be effective only upon the actual receipt thereof by an officer
of Bank at the address specified below, and in the event no such address is
specified, at Bank's principal corporate office in Birmingham , Alabama,
Attention: General Counsel.
(12) This Guaranty is given under the seal of all parties hereto, and it is
intended that this Guaranty is and shall constitute and have the effect of a
sealed instrument according to law.
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IN WITNESS WHEREOF, the undersigned Guarantors have executed this Guaranty
effective the 31st day of January, 2000.
GUARANTOR:
_____________________________________ XXXXXXX REALTY INVESTORS, INC.,
a Georgia corporation
ADDRESS OF GUARANTOR
_____________________________________ By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: President
[CORPORATE SEAL]
Signed, sealed and delivered in the presence of:
Xxxxxxx X. Xxxxxxx
-------------------------------------
Witness
Xxxxxx Xxxxxxx
-------------------------------------
Notary Public
My commission expires:
August 19, 2003
[Notary Seal]
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ADDENDUM TO GUARANTY OF
XXXXXXX PROPERTIES, INC. ("Guarantor")
RELATING TO DEBTS AND OBLIGATIONS OF
XXXXXXX PROPERTIES RESIDENTIAL, L.P. ("Borrower")
The above-referenced Guaranty is modified to add the following additional
provisions:
1. Guarantor agrees that the Indebtedness guaranteed extends to and includes any
and all liability of Borrower under Section 1.17 of the Future Advance Deed to
Secure Debt, Assignment of Rents and Leases, and Security Agreement (the "Deed
to Secure Debt") executed by Borrower in connection with a $2,000,000 loan from
Bank to Borrower (the "Loan"), including, without limitation, the indemnities
set forth in said Section. Notwithstanding any other provision of this Guaranty,
the provisions of this paragraph shall automatically expire and be of no further
force and effect if, as and when the Indebtedness secured hereby has been paid
in full and (i) such payments have become final and are not subject to being
voided or refunded under the Bankruptcy Code or other applicable law, and (ii)
such satisfaction of Indebtedness did not result from or was not related to the
Bank accepting or acquiring title to the Property described in the Deed to
Secure Debt given by Xxxxxxxx, whether by foreclosure, deed in lieu of
foreclosure, or otherwise. The Guarantor agrees that, unless the provisions of
this paragraph shall automatically expire pursuant to the provisions of the
preceding sentence, the Guarantor's guaranty of the Indebtedness of Borrower
with respect to the matters set forth in this paragraph shall survive
indefinitely, and shall not be extinguished by the payment of the Loan, the
exercise of any right or remedy under any Loan document including, but not
limited to foreclosure or the taking of a deed in lieu of foreclosure, or any
subsequent sale or transfer of the Property.
2. Notwithstanding anything to the contrary in the Guaranty, the term
"Indebtedeness" as use herein shall be limited to (i) the indebtedness of
Borrower to Bank evidenced by that certain Promissory Note of even date herewith
from Borrower payable to Bank in the principal amount of $2,000,000 (the
"Note"); and (ii) the payment and performance obligations of Borrower under the
terms of the (a) Deed to Secure Debt, and (b) any other documents or instruments
executed by Borrower to evidence or secure the Loan.
3. Whenever reference is made to the payment of "reasonable attorney's fees" or
words of similar import in the Guaranty, the same shall mean and refer to the
payment of actual attorney's fees incurred based upon the attorney's normal
hourly rate and the number of hours worked, and not the statutory attorney's
fees defined in O.C.G.A. ss. 13-1-11.
4. In the event of any conflict between this Addendum and the Guaranty, the
terms of this Addendum shall control.
Signed, sealed and delivered in
the presence of: GUARANTOR:
Xxxxxxx X. Xxxxxxx
-------------------------------- XXXXXXX REALTY INVESTORS, INC.
Witness
Xxxxxx Xxxxxxx By: /s/Xxxxxxx X. Xxxxxxx
-------------------------------- ----------------------------------
Notary Public Name: Xxxxxxx X. Xxxxxxx
Title: President
My commission expires: [CORPORATE SEAL]
[Notary Seal] Date: January 31, 2000
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