EXHIBIT 10.33
GUARANTY AGREEMENT
BY
XXXXX X. XXXXXXXXXX
GUARANTY
In consideration of the sum of Ten and No/100 Dollars ($10.00) and other
good and valuable consideration paid or delivered to XXXXX X. XXXXXXXXXX
("Guarantor"), the receipt and sufficiency whereof and hereby acknowledged by
Guarantor, and for the purpose of seeking to induce and as an inducement for the
execution and delivery by XXXXX DEVELOPMENT CORPORATION, a Georgia corporation
("Owner"), of that certain Development Agreement (the "Agreement") with ADEVCO
CORPORATION, a Georgia corporation ("Manager"), of even date herewith, Guarantor
does hereby guarantee to Owner the full and prompt payment of all sums and
amounts payable by Manager under the Agreement, and hereby further guarantees
the full and timely performance and observance of all the covenants, terms,
conditions and agreements therein provided to be performed and observed by
Manager; and Guarantor hereby covenants and agrees to and with Owner that if
default shall at any time be made by Manager in the payment of any sums or
amounts payable by Manager under the Agreement, or if Manager should default in
the performance and observance of any of the terms, covenants and conditions
contained in the Agreement, Guarantor shall and will forthwith pay such sums and
amounts, and shall and will forthwith faithfully perform and fulfill all of such
terms, covenants and conditions and will forthwith pay to Owner all damages that
may arise in consequence of any default by Manager under the Agreement,
including, without limitation, all reasonable attorneys' fees and disbursements
incurred by Owner or caused by any such default or the enforcement of this
Guaranty.
This Guaranty is an unconditional guaranty of payment (and not of
collection) and of performance. The liability of Guarantor is coextensive with
that of Manager and also joint and several and this Guaranty shall be
enforceable against Guarantor without the necessity of any suit or proceeding on
Owner's part of any kind or nature whatsoever against Manager and without the
necessity of any notice of non-payment, non-performance or non-observance or of
any notice of acceptance of this Guaranty or of any other notice or demand to
which Guarantor might otherwise be entitled, all of which Guarantor hereby
expressly waives. Guarantor hereby expressly agrees that the validity of this
Guaranty and the obligations of Guarantor hereunder shall in no way be
terminated, affected, diminished or impaired by reason of (a) the assertion or
the failure to assert by Owner against Manager of any of the rights or remedies
reserved by Owner pursuant to the terms, covenants and conditions of the
Agreement, or (b) any non-liability of Manager under the Agreement due to
insolvency, discharge in bankruptcy or any other defense of a similar nature.
This Guaranty shall be a continuing guaranty, and the liability of
Guarantor hereunder shall in no way be affected, released or diminished by
reason of (a) any assignment, renewal, modification, amendment or extension of
the Agreement, or (b) any modification or waiver of or change in any of the
terms, covenants and conditions of the Agreement by Owner and Manager, or (c)
any extension of time that may be granted by Owner to Manager, or (d) any
consent, release, indulgence or other action, inaction or omission under or in
respect of the Agreement, or (e) any dealings or transactions or matter or thing
occurring between Owner and Manager, or (f) any bankruptcy, insolvency,
reorganization, liquidation, arrangement, assignment for the benefit of
creditors, receivership, trusteeship or similar proceeding affecting Manager,
whether or not notice thereof or of any thereof is given to Guarantor.
Should Owner be obligated by any bankruptcy or other law to repay to
Manager or to Guarantor or to any trustee, receiver or other representative of
either of them, any amounts previously paid, this Guaranty shall be reinstated
in the amount of such repayments. Owner shall not be required to litigate or
otherwise dispute its obligations to make such repayments if it in good faith
believes that such obligation exists.
No delay on the part of Owner in exercising any right, power or privilege
under this Guaranty or failure to exercise the same shall operate as a waiver of
or otherwise affect any such right, power or privilege, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
No waiver or modification of any provision of this Guaranty nor any
termination of this Guaranty shall be effective unless in writing, signed by
Owner; nor shall any such waiver be applicable except in the specific instance
for which given.
All of Owner's rights and remedies under the Agreement and under this
Guaranty, now or hereafter existing at law or in equity or by statute or
otherwise, are intended to be distinct, separate and cumulative and no exercise
or partial exercise of any such right or remedy therein or herein mentioned is
intended to be in exclusion of or a waiver of any of the others.
Guarantor agrees that whenever at any time or from time to time Guarantor
shall make any payment to Owner or perform or fulfill any term, covenant or
condition hereunder on account of the liability of Guarantor hereunder,
Guarantor will notify Owner in writing that such payment or performance, as the
case may be, is for such purpose. No such payment or performance by Guarantor
pursuant to any provision hereof shall entitle Guarantor by subrogation or
otherwise to the rights of Owner to any payment by Manager or out of the
property of Manager, except after payment of all sums or fulfillment of all
covenants, terms, conditions or agreements to be paid or performed by Manager.
Without regard to principles of conflicts of laws, the validity,
interpretation, performance and enforcement of this Guaranty shall be governed
by and construed in accordance with the internal laws of the State of Georgia.
IN WITNESS WHEREOF, the undersigned has duly executed this Guaranty this
15/th/ day of September, 1998.
GUARANTOR:
/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
------------------------
XXXXX X. XXXXXXXXXX
Residence Address:
________________________
________________________
________________________
Social Security Number:
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