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EXHIBIT 10.5.16
GUARANTY
THIS GUARANTY is made as of the 30th day of January, 1997 by XXXXXXX
REALTY INVESTORS, INC., a Georgia corporation ("Guarantor") in favor of
NATIONWIDE LIFE INSURANCE COMPANY ("Nationwide") and WEST COAST LIFE INSURANCE
COMPANY ("West Coast") (Nationwide and West Coast being collectively referred
to herein as "Lender").
ARTICLE I - BACKGROUND AND AGREEMENT
1.01 Background. Lender has agreed to make a loan (the "Loan") in
the aggregate principal amount of $6,420,000 to Xxxxxxx Properties Residential,
L.P., a Georgia limited partnership ("Borrower") evidenced by (a) that certain
Real Estate Note "A" (the "Nationwide Note") of even date herewith in favor of
Nationwide in the principal amount of $5,670,000, and (b) that certain Real
Estate Note "B" (the "West Coast Note") of even date herewith in favor of West
Coast in the principal amount of $750,000 (the Nationwide Note and the West
Coast Note being collectively referred to hereafter as the "Note" (the "Note")
secured by, among other things, that certain deed to secure debt and security
agreement (the "Security Instrument") from Borrower to Lender, dated of even
date herewith and to be recorded in the Gwinnett County, Georgia records (the
Note, the Security Instrument, and any and all other documents or instruments
evidencing, securing or otherwise relating to the indebtedness evidenced by the
Note are hereinafter collectively referred to as the "Loan Documents"). Since
Guarantor is the sole general partner of Borrower, the Loan will be of direct
interest and advantage to Guarantor; and a condition to the making of the Loan
is the delivery of this Guaranty to Lender.
1.02 Statement of Agreement. For and in consideration of the sum
of $10.00 and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by Guarantor, and for the purpose of seeking to
induce Lender to extend credit to Borrower, Guarantor does hereby make the
following guarantees to and agreements with Lender.
ARTICLE II - GUARANTEES
2.01 Guaranty of Payment. Guarantor does hereby unconditionally
guarantee to Lender the full and prompt payment of the Note when due, whether
by acceleration or otherwise, with such interest as may accrue thereon and such
prepayment premiums and other charges as may be due in connection therewith,
either before or after maturity thereof.
2.02 Guaranty of Performance. Guarantor does hereby
unconditionally guarantee to Lender the full and prompt payment and performance
of any and all obligations whatsoever of Borrower and all other parties to
Lender under the terms of the Loan Documents, whether such obligations now
exist or arise hereafter.
2.03 Guarantor Obligations. Guarantor does hereby agree that if
the Note is not paid by Borrower in accordance with its terms for any reason
whatsoever, or if any and all sums which are now or may hereafter become due
from Borrower to Lender under the Loan Documents are not paid by Borrower in
accordance with their terms for any reason whatsoever, Guarantor will
immediately make such payments. Guarantor further agrees to pay Lender all
expenses (including, without limitation, reasonable attorneys' fees) paid or
incurred by Lender in endeavoring to collect all or any portion of the
indebtedness evidenced by the Note, to enforce any other obligations guaranteed
hereby, or to enforce this Guaranty.
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2.04 Loan Documents. The provisions of this Guaranty shall extend
and be applicable to all renewals, replacements, amendments, extensions,
consolidations and modifications of the Loan Documents, and any and all
references herein to the Loan Documents or any of them shall be deemed to
include any such renewals, replacements, amendments, extensions, consolidations
or modifications thereof.
ARTICLE III - AGREEMENTS AND WARRANTIES
3.01 Consents. Guarantor hereby consents and agrees that Lender
may at any time, and from time to time, without notice to or further consent
from Guarantor, either with or without consideration: release and surrender any
property or other security of any kind or nature whatsoever now or hereafter
held by it or by any person or entity on its behalf or for its account,
securing any indebtedness or liability hereby guaranteed (the "Collateral");
substitute for any Collateral held by or on behalf of Lender other collateral
of like kind, or of any kind; make overadvances or increase the amount of the
Loan; agree to modify the terms of any one or more of the Loan Documents;
extend or renew the Note for any period; grant releases, compromises and
indulgences with respect to any one or more of the Loan Documents and to any
persons or entities now or hereafter liable thereunder or hereunder; release
any other guarantor or endorser of or other person or entity liable upon the
Note or any other of the Loan Documents; or take or fail to take any action of
any type whatsoever. No such action which Lender shall take or fail to take in
connection with the Loan Documents or any Collateral, nor any course of dealing
with Borrower or any other person, shall limit, impair or release Guarantor's
obligations hereunder, affect this Guaranty in any way or afford Guarantor any
recourse against Lender. Nothing contained in this section shall be construed
to require Lender to take or refrain from taking any action referred to herein.
3.02 Subordination. Guarantor hereby subordinates any and all
indebtedness of Borrower now or hereafter owed to Guarantor to all indebtedness
of Borrower to Lender, and agrees with Lender that Guarantor shall not demand
or accept any payment of principal or interest from Borrower, shall not claim
any offset or other reduction of Guarantor's obligations hereunder because of
any such indebtedness and shall not take any action to obtain any of the
Collateral.
3.03 Waiver of Defenses. Guarantor hereby waives and agrees not to
assert or take advantage of any defense based upon: (a) any incapacity, lack of
authority, death or disability of Guarantor or any other person or entity; (b)
any failure of Lender to commence an action against Borrower or any other
person or entity (including, without limitation, other guarantors, if any) , or
to file or enforce a claim against the estate (either in administration,
bankruptcy, or any other proceeding) of Borrower or any other person or entity,
whether or not demand is made upon Lender to file or enforce such claim; (c)
any failure of Lender to give notice of the existence, creation or incurring of
any new or additional indebtedness or other obligation or of any action or
nonaction on the part of any other person or entity, in connection with the
Loan Documents or any obligation hereby guaranteed; (d) any failure on the part
of Lender to ascertain the extent or nature of the Collateral or any insurance
or other rights with respect thereto, or the liability of any party liable for
the Loan Documents or the obligations evidenced or secured thereby, or any
failure on the part of Lender to disclose to Guarantor any facts it may now or
hereafter know regarding Borrower, the Collateral, or such other parties; (e)
any lack of acceptance or notice of acceptance of this Guaranty by Lender; (f)
any lack of presentment, demand, protest, or notice of demand, protest or
nonpayment with respect to any indebtedness or obligations under any of the
Loan Documents; (g) any lack of notice of disposition or of manner of
disposition of any Collateral; (h) any lack of other notices to which Guarantor
might otherwise be entitled; (i) failure to properly record any document or any
other lack of due diligence by Lender in creating or perfecting a security
interest in or collection, protection or realization upon any Collateral or in
obtaining reimbursement or performance from any person or entity now or
hereafter liable for the Loan Documents or any obligation secured thereby; (j)
any invalidity, irregularity or
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unenforceability, in whole or in part, of any one or more of the Loan
Documents; (k) the inaccuracy of any representation or other provision
contained in any Loan Document; (1) any sale or assignment of the Loan
Documents, in whole or in part; (m) any sale or assignment by Borrower of the
Collateral, or any portion thereof , whether or not consented to by Lender; (n)
any lack of commercial reasonableness in dealing with Collateral; (o) any
deficiencies in the Collateral or any deficiency in the ability of Lender to
collect or obtain performance from any persons or entities now or hereafter
liable for the payment or performance of any obligation hereby guaranteed; (p)
an assertion or claim that the automatic stay provided by 11 U.S.C. Section 362
(arising upon the voluntary or involuntary bankruptcy proceeding of Borrower),
or any other stay provided under any other debtor relief law (whether
statutory, common law, case law or otherwise) of any jurisdiction whatsoever,
now or hereafter in effect, which may be or become applicable, shall operate or
be interpreted to stay, interdict, condition, reduce or inhibit the ability of
Lender to enforce any of its rights, whether now or hereafter acquired, which
Lender may have against Guarantor or the Collateral; (q) any modifications of
the Loan Documents or any obligation of Borrower relating to the Loan by
operation of law or by action of any court, whether pursuant to the Bankruptcy
Reform Act of 1978, as amended, or any other debtor relief law (whether
statutory, common law, case law or otherwise) of any jurisdiction whatsoever,
now or hereafter in effect, or otherwise; and (r) any action, occurrence, event
or matter consented to by Guarantor under Section 3.01 hereof, under any other
provision hereof, or otherwise.
3.04 Liability of Guarantor. This is a guaranty of payment and
performance and not of collection. The liability of Guarantor under this
Guaranty shall be direct and immediate and not conditional or contingent upon
the pursuit of any remedies against Borrower or any other person (including,
without limitation, other guarantors, if any), nor against the Collateral.
Guarantor waives any right to require that an action be brought against
Borrower or any other person or to require that resort be had to any Collateral
or to any balance of any deposit account or credit on the books of Lender in
favor of Borrower or any other person. In the event that, on account of the
Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law
(whether statutory, common law, case law or otherwise) of any jurisdiction
whatsoever, now or hereafter in effect, which may be or become applicable,
Borrower shall be relieved of or fail to incur any debt, obligation or
liability as provided in the Loan Documents, Guarantor shall nevertheless be
fully liable therefor. In the event of a default under the Loan Documents,
Lender shall have the right to enforce its rights, powers and remedies
(including, without limitation, foreclosure of all or any portion of the
Collateral) thereunder or hereunder, in any order, and all rights, powers and
remedies available to Lender in such event shall be nonexclusive and cumulative
of all other rights, powers and remedies provided thereunder or hereunder or by
law or in equity. If the indebtedness guaranteed hereby is partially paid by
reason of the election of Lender to pursue any of the remedies available to
Lender, or is otherwise partially paid, this Guaranty shall nevertheless remain
in full force and effect, and Guarantor shall remain liable for the entire
remaining unpaid balance of the indebtedness guaranteed hereby, even though any
rights which Guarantor may have against Borrower may be destroyed or diminished
by the exercise of any such remedy. Guarantor covenants and agrees that, upon
the commencement of a voluntary or involuntary bankruptcy proceeding by or
against Borrower, Guarantor shall not seek or cause Borrower or any other
person or entity to seek a supplemental stay or other relief, whether
injunctive or otherwise, pursuant to 11 U.S.C. Section 105 or any other
provision of the Bankruptcy Reform Act of 1978, as amended, or any other debtor
relief law (whether statutory, common law, case law or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, which may be or become
applicable, to stay, interdict, condition, reduce or inhibit the ability of
Lender to enforce any rights of Lender against Guarantor or the Collateral by
virtue of this Guaranty or otherwise. No exculpatory or similar provision of
the Loan Documents which limits, or relieves Borrower from, any personal or
direct liability of Borrower under the Loan Documents shall limit or relieve
Guarantor from any such liability, it being the intention of the parties hereto
that Guarantor be liable for all obligations of the Borrower under any
provision of the Loan Documents notwithstanding any such exculpatory or similar
provision. The obligations of Guarantor
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and the rights of Lender hereunder are in addition to the obligations of
Guarantor and the rights of Lender under any other guaranty, indemnity or other
agreement given by Guarantor to Lender in connection with the Loan, and
payments made hereunder shall not reduce the liabilities and obligations of
Guarantor under any other such guaranty, indemnity or other agreement.
3.05 [RESERVED].
3.06 Application of Payments. Guarantor hereby authorizes Lender,
without notice to Guarantor, to apply all payments and credits received from
Borrower or from Guarantor for the Loan or realized from any security to the
indebtedness, obligations and undertakings of Borrower in connection with the
Loan (whether or not the same are the subject of this Guaranty) in the manner
set forth in the Loan Documents.
3.07 Financial Statements. Guarantor acknowledges that the Loan
Documents require that Borrower provide or cause to be provided to Lender
certain financial statements of Guarantor. Guarantor hereby agrees to provide
to Lender all such financial statements in such form and at such times as is
required under the provisions of the Loan Documents.
3.08 Warranties. Guarantor warrants and represents (a) that the
execution and delivery of this Guaranty do not violate or constitute a breach
of any agreement to which Guarantor is a party or any applicable laws, and (b)
that there is no litigation, claim, action or proceeding, pending or threatened
against Guarantor which would adversely affect the financial condition of
Guarantor or the ability of Guarantor to fulfill all obligations of Guarantor
hereunder, and (c) that all financial statements heretofore delivered by
Guarantor to Lender are true and correct in all respects as of the date
thereof, and no material change has occurred in the financial condition of
Guarantor since the date thereof.
3.09 Condition of Borrower. Guarantor warrants and represents that
Guarantor is fully aware of the financial condition of Borrower and is
executing and delivering this Guaranty based solely upon Guarantor's own
independent investigation of all matters pertinent hereto, and that Guarantor
is not relying in any manner upon any representation or statement of Lender.
Guarantor warrants, represents and agrees that Guarantor is in a position to
obtain, and Guarantor hereby assumes full responsibility for obtaining, any
additional information concerning the financial condition of Borrower and any
other matter pertinent hereto, and that Guarantor is not relying upon Lender to
furnish, and shall have no right to require Lender to obtain or disclose, any
information with respect to the indebtedness or obligations guaranteed hereby,
the financial condition or character of Borrower or the ability of Borrower to
pay the indebtedness or perform the obligations guaranteed hereby, the
existence of any collateral or security for any or all of such indebtedness or
obligations, the existence or nonexistence of any other guaranties of all or
any part of such indebtedness or obligations, any actions or non-action on the
part of Lender, Borrower or any other person or entity, or any other matter,
fact or occurrence whatsoever. By executing this Guaranty, Guarantor
acknowledges and knowingly accepts the full range of risks encompassed within a
contract of guaranty.
ARTICLE IV - GENERAL CONDITIONS
4.01 Service of Process. Guarantor hereby (a) submits to personal
jurisdiction in the State of Georgia for the enforcement of this Guaranty, and
(b) waives any and all rights under the law of any state to object to
jurisdiction within the State of Georgia for the purposes of litigation to
enforce this Guaranty. Nothing contained herein, however, shall prevent Lender
from bringing any action or exercising any rights against any security or
against Guarantor personally, or against any property of Guarantor, within any
other state. Initiating such proceeding or taking such action in any other
state shall in no event constitute a waiver of the agreement contained herein
that the law of the State of
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Georgia shall govern the rights and obligations of Guarantor and Lender
hereunder or of the submission herein made by Guarantor to personal
jurisdiction within the State of Georgia.
4.02 Waiver of Rights. Guarantor hereby waives and renounces, to
the fullest extent permitted by law, all rights to the benefits of any statute
of limitations and any moratorium, reinstatement, marshalling, forbearance,
valuation, stay, extension, redemption, appraisement, exemption and homestead
now or hereafter provided by the Constitution and laws of the United States of
America and of each state thereof, both as to itself and in and to all of its
property, real and personal, against the enforcement and collection of the
obligations evidenced by this Guaranty.
4.03 Communications. Unless and except as otherwise specifically
provided herein, any and all notices, elections, approvals, consents, demands,
requests and responses thereto ("Communications") permitted or required to be
given under this Guaranty shall be in writing, signed by or on behalf of the
party giving the same, and shall be deemed to have been properly given and
shall be effective upon the earlier of receipt thereof or deposit thereof in
the United States mail, postage prepaid, certified with return receipt
requested, to the other party at the address of such other party set forth
hereinbelow or at such other address within the continental United States as
such other party may designate by notice specifically designated as a notice of
change of address and given in accordance herewith; provided, however, that the
time period in which a response to any communication must be given shall
commence on the date of receipt thereof; and provided further that no notice of
change of address shall be effective with respect to Communications sent prior
to the time of receipt thereof. Receipt of Communications under this Guaranty
shall occur upon actual delivery (whether by mail, telecopy transmission,
messenger, courier service, or otherwise) to any person who is Guarantor or an
officer or general partner of Guarantor at any location where such person may
be found, or to an officer, partner, agent or employee of Guarantor or Lender,
at the address of such party set forth hereinbelow, subject to change as
provided hereinabove. An attempted delivery in accordance with the foregoing,
acceptance of which is refused or rejected, shall be deemed to be and shall
constitute receipt; and an attempted delivery in accordance with the foregoing
by mail, messenger, or courier service (whichever is chosen by the sender)
which is not completed because of changed address of which no notice was
received by the sender in accordance with this provision prior to the sending
of the communication shall also be deemed to be and constitute receipt. Any
Communication, if given to Lender, must be addressed as follows, subject to
change as provided hereinabove:
West Coast Life Insurance Company
c/o Nationwide Life Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
Attn: Real Estate Investments
Nationwide Life Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
Attn: Real Estate Investments
and, if given to Guarantor, must be addressed as follows, subject to change as
provided hereinabove:
Xxxxxxx Realty Investors, Inc.
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
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4.04 Irrevocability and Revival. This Guaranty shall be
irrevocable by Guarantor and, subject to paragraph 4.08 below, shall remain in
effect until all indebtedness guaranteed hereby has been completely repaid,
until Lender has no further obligation to make future advances under any of the
Loan Documents, and until all obligations and undertakings of Borrower under,
by reason of, or pursuant to the Loan Documents have been completely performed,
including obligations which survive repayment of the Loan or realization upon
the Collateral. Unless this Guaranty has terminated in accordance with
paragraph 4.08 below, this Guaranty shall continue to be effective or be
revived and reinstated, as the case may be, in the event that any payment
received by Lender of any of the indebtedness guaranteed hereby is returned or
rescinded by reason of any present or future federal, state or other law or
regulation relating to bankruptcy, insolvency or other relief of debtors or for
any other reason.
4.05 Limit of Validity. If from any circumstances whatsoever
fulfillment of any provisions of this Guaranty, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
presently prescribed by any applicable usury statute or any other applicable
law, with regard to obligations of like character and amount, then ipso facto
the obligation to be fulfilled shall be reduced to the limit of such validity,
so that in no event shall any exaction be possible under this Guaranty that is
in excess of the current limit of such validity, but such obligation shall be
fulfilled to the limit of such validity. The provisions of this section shall
control every other provision of this Guaranty.
4.06 Applicable Law. This Guaranty shall be interpreted, construed
and enforced according to the laws of the State of Georgia.
4.07 Miscellaneous. This Guaranty may not be changed orally, and
no obligation of Guarantor can be released or waived by Lender or any officer
or agent of Lender, except by a writing signed by a duly authorized officer of
Lender. The provisions of this Guaranty shall be binding upon Guarantor and
the heirs, executors, legal representatives, successors, successors-in-title
and assigns of Guarantor and shall inure to the benefit of Lender, the heirs,
executors, legal representatives, successors, successors-in-title and assigns
of Lender. This Guaranty shall in no event be impaired by any change which may
arise by reason of the death of Borrower or Guarantor, if individuals, or by
reason of the dissolution of Borrower or Guarantor, if Borrower or Guarantor is
a corporation or partnership. Guarantor has executed this Guaranty
individually and not as a partner of Borrower or any other guarantor. The
Guaranty is assignable by Lender, and any full or partial assignment hereof by
Lender shall operate to vest in the assignee all rights and powers herein
conferred upon and granted to Lender and so assigned by Lender. Guarantor
expressly waives notice of transfer or assignment of this Guaranty and
acknowledges that the failure by Lender to give any such notice shall not
affect the liabilities of Guarantor hereunder. All personal pronouns used
herein, whether used in the masculine, feminine or neuter gender, shall include
all other genders; and the singular shall include the plural and vice versa.
Titles of articles and sections are for convenience only and in no way define,
limit, amplify or describe the scope or intent of any provisions hereof. If
Guarantor is a partnership, all of the provisions hereof referring to Guarantor
shall be construed to apply to each of the general partners of Guarantor and of
any and all further tiers of general partners in the structure of Guarantor.
This Guaranty contains the entire agreement between Guarantor and Lender
relating to the guarantying of the Loan by Guarantor and supersedes entirely
any and all prior written or oral agreements with respect thereto; and
Guarantor and Lender acknowledge that there are no contemporaneous oral
agreements with respect to the subject matter hereof. The phrase "reasonable
attorneys' fees" as used in this Guaranty shall have the same meaning as
ascribed thereto in the section of the Note entitled "Miscellaneous."
4.08 Termination of Guaranty. Provided there is then no default or
event of default under any of the Loan Documents, or event or circumstance
which with the giving of notice, passage of time, or both, would constitute a
default or event of default under any of the Loan Documents, upon written
request Lender will release this Guaranty and
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this Guaranty shall terminate if at such time the "Net Operating Income" (as
hereafter defined) generated by the "Property" (as hereafter defined) is at
least equal to one hundred and twenty-five percent (125%) of the annual debt
service payments due under the terms of the Loan Documents for a period of at
least three (3) consecutive calendar months. For purposes of this paragraph
4.08, "Net Operating Income" shall mean the "Rents" (as hereafter defined)
minus the "Operating Expenses" (as hereafter defined). For purposes of this
paragraph 4.08, the following terms shall have the following meanings:
A. "Rents" means the annualized rents and expense reimbursements
(if any) to be received from tenants of the Property pursuant to leases
approved by Lender (unless Lender's approval of any of such leases is not
required in accordance with paragraph 12 of the Security Instrument) where the
tenants are actually paying rent (i.e., any free rent periods must have
expired) and such tenants are actually in occupancy.
B. "Operating Expenses" means the greater of (i) the annualized
expenses of operating and maintaining the Property which shall include, without
limitation, a management fee equal to four percent (4%) of the annualized
Rents, or (ii) $494,632. For purposes of calculating Operating Expenses,
property tax expenses shall be calculated assuming that all improvements to be
built pursuant to plans and specifications delivered to Lender in connection
with the Loan have been completed and fully assessed and using the most recent
tax rate available (whether certified or not).
C. "Property" means the land described on Exhibit A to the
Security Instrument together with all buildings and improvements constructed
thereon or to be constructed thereon pursuant to plans and specifications
delivered to Lender in connection with the Loan and together with all
appurtenances thereto.
Items to be included in the calculation of Rents and Operating Expenses shall
be as reasonably determined by Lender. At any time that request is made for a
release of this Guaranty, Guarantor shall deliver, or cause to be delivered, to
Lender such information as Lender may request with respect thereto including,
without limitation, (i) a current rent roll certified to be true and correct by
Borrower, (ii) if requested by Lender, true and complete copies of all fully
executed leases which are being used to satisfy the criteria for release, (iii)
unconditional certificates of occupancy for any completed buildings if not
previously delivered, (iv) actual operating statements for the Property
identifying all expenses of operating and maintaining the Property.
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty under seal as
of the date first above written.
GUARANTOR
Signed, sealed and delivered XXXXXXX REALTY INVESTORS,
in the presence of: INC., a Georgia corporation
/s/ Xxxxxxx X. Xxxxxxx
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Witness By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx,
President
[CORPORATE SEAL]
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