Exhibit 10.13.5
GUARANTY AGREEMENT
(STATE FARM LOAN NO. 13551)
THIS GUARANTY AGREEMENT ("Guaranty") made and executed this 6th day of
November, 2001 by XXXXXXX REALTY INVESTORS, INC., a Georgia corporation,
("Guarantor") whose address for purposes of this instrument is Attention:
Xxxxxxx X. Xxxxxxx, Chief Financial Officer, 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 to and in favor of STATE FARM LIFE INSURANCE COMPANY, an
Illinois corporation, ("State Farm") whose address for purposes of this
instrument is Attention: Corporate Law-Investments, Xxx Xxxxx Xxxx Xxxxx, X-0,
Xxxxxxxxxxx, Xxxxxxxx 00000-0000;
W I T N E S S E T H:
WHEREAS, Xxxxxxx Properties Residential, L.P., a Georgia limited
partnership, ("Borrower") has requested and made application to State Farm for a
mortgage loan in the principal amount of Twenty-One Million and 00/100 Dollars
($21,000,000.00); and
WHEREAS, State Farm has approved and agreed to make a mortgage loan in
that amount to Borrower ("Loan") on those terms and subject to those conditions
set forth with particularity in Xxxxx Xxxx'x Xxxx Xxxxxxxxxx Xx. 00000 dated
September 26, 2001 and all amendments thereto (collectively, the "Commitment"),
including, among others, the condition that Guarantor execute and deliver this
Guaranty to and in favor of State Farm; and
WHEREAS, the Loan is evidenced by a certain Promissory Note executed by
Borrower to and in favor of State Farm in the principal amount of Twenty-One
Million and 00/100 Dollars ($21,000,000.00) of even date herewith ("Note") and
is secured by, among other documents and instruments, a Mortgage and Security
Agreement executed by Borrower to and in favor of State Farm of even date
herewith ("Mortgage") encumbering certain real property and other property,
rights and interests more particularly described therein (collectively,
"Premises"); and
WHEREAS, State Farm is unwilling to make the Loan to Borrower unless
Guarantor guarantees certain obligations of Borrower as hereinafter provided;
and
WHEREAS, Guarantor is the sole general partner of Borrower and in such
capacity has certain financial and ownership interests in Borrower; and
WHEREAS, Guarantor recognizes and acknowledges that the financial
success of the Borrower will directly benefit Guarantor and its shareholders and
Guarantor, therefore, deems it to be to the business and financial advantage and
benefit of Guarantor and its shareholder that Guarantor execute and deliver this
Guaranty;
NOW THEREFORE, for and in consideration of the premises hereof, and for
other good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged by Guarantor, Guarantor does hereby, for the benefit of
State Farm, covenant, stipulate and agree as follows, to wit:
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1. RECITALS. The recitals hereinabove set forth in the premises of this
Guaranty are true and correct and are by this reference thereto incorporated
into this Guaranty.
2. DEFINITION OF TERMS. Those capitalized terms not otherwise defined
herein shall have those definitions and meanings ascribed to such terms in the
Mortgage and other Loan Documents (as defined in the Mortgage).
3. GUARANTEED OBLIGATIONS. Guarantor does hereby unconditionally and
absolutely guarantee to State Farm the full and prompt payment to State Farm of
the following obligations ("Guaranteed Obligations"), to wit:
A. After the occurrence of any Event of Default under
any of the Loan Documents:
(i) An amount equal to any Rents received by any
of the Exculpated Parties from tenants of the Premises and not
applied to the Indebtedness or the ordinary operating expenses
of the Premises during Borrower's current fiscal year;
(ii) An amount equal to any Rents from the
Premises not paid by tenants due to Borrower's failure to
perform the landlord's obligations under any lease or leases
of the Premises or any part thereof;
(iii) Any amount(s) necessary to repair or replace
any damage to or destruction of the Premises which is caused
by the willful or wanton act or willful or wanton omission of
any of the Exculpated Parties;
(iv) Any sums expended by State Farm in
performance of or in compliance with the obligations of the
landlord under all covenants, agreements and provisions of any
Lease assigned to State Farm as security for the Indebtedness
and Obligations, due to Borrower's failure or refusal to
perform such obligations;
B. An amount equal to any casualty or liability
insurance proceeds or condemnation awards received by any of the
Exculpated Parties and not delivered over to State Farm or used for
Restoration of the Premises;
C. An amount equal to any costs, expenses, damages,
attorneys' and paralegals' fees or other liabilities or obligations
incurred by State Farm, directly or indirectly arising out or on
account of or attributable to the use, generation, storage, release,
threatened release, discharge, disposal, or presence on, under, or
about the Premises of any materials, substances, or wastes defined or
classified as hazardous or toxic under applicable federal, state or
local laws or regulations or arising out of or from any failure on the
part of Borrower or Guarantor to comply with the provisions of the
Environmental Indemnification Agreement; (provided, however, that the
Guarantor's
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obligations hereunder shall not apply to any costs incurred by or
imposed upon State Farm with respect to any event arising subsequent to
State Farm taking title to the Premises by foreclosure or deed in lieu
of foreclosure unless such costs are incurred in connection with an
event related to a condition existing at the Premises prior to or at
the time of such foreclosure or deed in lieu of foreclosure); and
D. An amount equal to any loss, damage, cost, expense,
liability or obligation suffered or incurred by State Farm arising out
or on account of or based upon any fraud or willful misrepresentation
of a material fact by any of the Exculpated Parties in any document
executed or presented to State Farm in connection with the Loan.
E. An amount equal to the aggregate sum of any and all
tenant security deposits required to be paid by State Farm to any
tenants of the Premises (or any other party) and not reimbursed to
State Farm by Borrower or any Exculpated Party and any and all damages,
costs and expenses, including, without limitation, attorneys' and
paralegals' fees, suffered or incurred by State Farm by reason or on
account of the failure of Borrower or any Exculpated Party to account
for and turn over to State Farm any tenant security deposits received
by Borrower or any Exculpated Party as required by the Leases or the
Loan Documents.
Guarantor hereby agrees that the Guaranteed Obligations shall be paid by
Guarantor to State Farm upon demand of State Farm in lawful money of the United
States of America in accordance with the terms and provisions of this Guaranty.
4. INDEMNIFICATION. Guarantor shall, and does hereby absolutely and
unconditionally agree, to indemnify, defend and save and hold State Farm
harmless from and against any and all losses, damages, costs and expenses
(including reasonable attorneys' fees) suffered or incurred by State Farm on
account of or with respect to the Guaranteed Obligations.
5. GUARANTY OF PAYMENT. This Guaranty is a guarantee of payment and not of
collection. Accordingly, the obligations of Guarantor under this Guaranty shall
be absolute and unconditional, irrespective of the validity, legality or
enforceability of the Note, Mortgage or other Loan Documents and shall not be
affected by any action taken by State Farm under the Loan Documents in the
exercise of any right, power or remedy therein conferred, or by any failure or
omission on the part of State Farm to enforce any right conferred thereby, or by
any waiver on the part of State Farm of any covenant or condition therein
provided; it being the purpose and intent of this Guaranty that the obligations
of Guarantor hereunder shall be absolute and unconditional under any and all
circumstances and shall not be discharged except by Guarantor's payment of the
Guaranteed Obligations as herein provided.
6. CHANGES OF STATUS. Guarantor hereby acknowledges and agrees that this
Guaranty and the obligations of Guarantor hereunder shall not be affected and
shall not be discharged by reason of any change in the status of Borrower,
including, without limitation, changes in name or structure of Borrower; merger
or consolidation of Borrower with any other entity or entities, or
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the transfer of all or any part of Borrower's assets to another entity;
termination or dissolution of Borrower; the filing of a petition by or against
Borrower under the bankruptcy laws of the United States, or the voluntary or
involuntary takeover of Borrower by Borrower's creditors; additions or losses of
partners of Borrower by death, succession or otherwise; any change in the status
of Guarantor with respect to Borrower, including, without limitation,
termination, transfer or conveyance of Guarantor's ownership interest in
Borrower or in any partners of Borrower, whether general or limited, or
termination or resignation of Guarantor as the sole general partner of Borrower;
or changes in operating procedures, management or in the nature or location of
Borrower's business.
7. GUARANTY IRREVOCABLE. This Guaranty shall be irrevocable by Guarantor
until all indebtedness of Borrower to State Farm shall have been completely
repaid and all obligations and undertakings of Borrower under, by reason of, or
pursuant to the Loan Documents, including, without limitation, the Environmental
Indemnification Agreement, shall have been fully and completely performed.
8. WAIVER OF SUBROGATION. Guarantor shall not exercise any rights which
Guarantor may acquire by way of subrogation under this Guaranty, by virtue of
any payment made hereunder or otherwise, until the entire indebtedness of
Borrower to State Farm evidenced and represented by the Note or otherwise
incurred pursuant to the Mortgage or any other Loan Document securing said
indebtedness shall have been paid in full.
9. REMEDIES. In the enforcement of this Guaranty, State Farm shall have
and be entitled to exercise any and all remedies provided herein and otherwise
provided by law. All rights, powers and remedies of State Farm under this
Guaranty and under any agreement between Borrower and State Farm or between
Guarantor and State Farm, now, or at any time hereafter enforced, shall be
cumulative and not alternative and shall be in addition to all rights, powers
and remedies provided and available to State Farm by law. No exercise of, delay
in exercising, or omission to exercise, any rights, powers or remedies by State
Farm shall be deemed a waiver thereof, and every such right, power and remedy
may be exercised by State Farm any one or more times or on any one or more
occasions without exhaustion.
10. ATTORNEYS' FEES. If this Guaranty is placed in the hands of an attorney
for enforcement on behalf of State Farm, Guarantor hereby agrees to pay all
costs thereof, including, without limitation, the reasonable fees and
disbursements of such attorney and/or his paralegal. Anything contained in this
Guaranty or in any of the other Loan Documents to the contrary notwithstanding,
whenever provision is made in this Guaranty or in any of the other Loan
Documents for payment of "reasonable attorney's fees" or "reasonable attorney's
and paralegal's fees" or words of similar import, the same shall mean and refer
to the payment of actual attorney's (or paralegal's) fees incurred based upon
the attorney's (or paralegal's) normal hourly rate and the number of hours
worked.
11. MODIFICATIONS; RELEASES. This Guaranty may not be changed, amended or
modified and no obligation of Guarantor may be released or waived by State Farm
or any officer or agent of State Farm, except in writing signed by a duly
authorized officer of State Farm.
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12. WAIVERS. Guarantor waives notice of default, non-payment, partial
payment, presentment, demand, protest, notice of protest, dishonor, notice of
dishonor and all other notice to which Guarantor might otherwise be entitled, or
which might be required by law and require to be given by State Farm. Guarantor
further agrees that there are absolutely no conditions or limitations to the
undertakings on the part of Guarantor set forth in this Guaranty save those
expressly written therein.
13. CLAIMS. Any claim or claims which State Farm may have against Guarantor
under this Guaranty at any time or time hereafter shall be asserted by State
Farm against Guarantor by written notice directed to Guarantor at the address of
Guarantor set forth in the preamble to this Guaranty.
14. NOTICES. All notices required or permitted to be given by either party
hereto shall be sent by registered or certified mail, return receipt requested
or by nationally recognized overnight courier (e.g., Federal Express) to the
party intended to receive such notice at the address shown in the preamble to
this Guaranty.
15. GOVERNING LAW. This Guaranty shall be governed by, construed and
enforced in accordance with the laws of the State of Florida.
16. BINDING EFFECT. This Guaranty is and shall be binding upon Guarantor
and its successors and assigns and shall inure to the benefit of State Farm and
its successors and assigns.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed,
sealed and delivered in manner and form sufficient to legally bind it in
accordance with the terms hereof on and as of the day and year first above
written.
Signed, sealed and delivered in the "GUARANTOR"
presence of the undersigned:
XXXXXXX REALTY INVESTORS, INC.,
a Georgia corporation
/s/ Sherevone X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Signature of Witness Xxxxxxx X. Xxxxxxx
Its Secretary, Treasurer and Chief
Sherevone X. Xxxx Financial Officer
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Print/Type Name of Witness
(Corporate Seal)
/s/ Mal Sport
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Signature of Witness
Mal Sport
------------------------------------
Print/Type Name of Witness
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STATE OF GEORGIA
COUNTY OF XXXXXX
The foregoing instrument was acknowledged before me this 6th day of
November, 2001 by Xxxxxxx X. Xxxxxxx, as Secretary, Treasurer and Chief
Financial Officer of Xxxxxxx Realty Investors, Inc., a Georgia corporation, on
behalf of said corporation. He [X] is personally known to me or [__] has
produced (insert type of identification) as identification.
/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Notary Public
Commission No.
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My Commission Expires: August 16, 2002
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(NOTARIAL SEAL)
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