GUARANTY
In consideration of the making of a loan (the "Loan") (by AID
ASSOCIATION FOR LUTHERANS, a Wisconsin corporation ("AAL") to
HISTORIC PRESERVATION PROPERTIES 000X X.X. TAX CREDIT FUND, a
Delaware limited partnership ("Borrower"), in the principal amount
of Six Million Dollars ($6,000,000.00), evidenced by a Deed of
Trust Note (the "Note") which loan, pursuant and subject to the
terms of the Note, is with limited recourse as to Borrower, and
which loan AAL would be unwilling to make without the execution of
this Guaranty, and for other consideration, XXXXXXXXX'X WHARF
BALTIMORE L.P., a Delaware limited partnership ("Guarantor"),
having an address at c/o Claremont Management Corp., Batterymarch
Park II, Quincy, Massachusetts 02169, directly, unconditionally
and independently of any liability it may have by virtue of its
affiliation with Borrower, hereby guarantees to AAL, its successors
and assigns the prompt payment at maturity of the Loan, whether
fixed or accelerated, whether as maker, indorser or otherwise, to
the extent and only to the extent of the outstanding principal
amount of the loan, plus accrued but unpaid interest thereon and
any other sums due pursuant to the Note or the Loan Documents (as
such term is defined in the Note), and actual attorney's fees and
all other costs of collection. Guarantor is not primarily liable
for the Loan, but has agreed to guaranty repayment of the amounts
due under the Note pursuant to the terms hereof.
The obligations of Guarantor under this Guaranty are secured
by, among other things, that certain Indemnity Deed of Trust and
Security Agreement (the "Deed of Trust") of even date, given by
Guarantor, as grantor, to certain trustees therein for the benefit
of AAL, as beneficiary, encumbering certain real properties located
in the City of Baltimore, State of Maryland and that certain
Assignment of Rents and Leases covering certain of the premises
located at 0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx (the "Mortgaged
Property").
Enforcement of Guarantor's and the constituent partners' of
Guarantor liability hereunder shall be limited to the Mortgaged
Property, and any other collateral AAL may hold to secure payment
of the Note and this Guaranty, and AAL shall not be entitled to
seek or obtain any deficiency judgment in excess of the amount
described in the previous sentence against Borrower, Guarantor or
any constituent partners of Guarantor, except that Borrower,
Guarantor and the constituent general partners of Guarantor shall
be and remain fully personally liable for the following:
(i) tenant security deposits in respect of each lease to the
extent not used to satisfy tenant arrearages of rent or to satisfy
damages caused by tenant default;
(ii) rents paid more than one (1) month in advance of its due
date;
(iii) rents and other similar sums received by Borrower or
Guarantor from the Mortgaged Property after an Event of Default (as
such term is defined in the Note and the Deed of Trust) unless
applied to (A) normal and necessary operating expenses of the
Mortgaged Property or (B) the indebtedness evidenced by this Note
(It is understood and agreed that all revenues derived from the
Mortgaged Property are to be held by Borrower and Guarantor as a
trust fund to be used first for the payments due under the Note and
the then due and payable legitimate operating expenses of the
Mortgaged Property and only after such payments shall the revenues
be used for Borrower's or Guarantor's personal use and/or
distribution.);
(iv) insurance or condemnation proceeds used for purposes
other than those set forth in Section 1.4 or in Article III of the
Deed of Trust, or as otherwise approved in writing by AAL;
(v) amounts necessary to pay taxes, assessments or any other
charges by a governmental entity which are a lien upon the
Mortgaged Property at the time AAL takes actual possession of the
Mortgaged Property or has a receiver appointed;
(vi) amounts necessary to pay any construction lien,
mechanics' liens, materialmen's liens or similar type lien against
the Mortgaged Property arising out of the act or omissions of
Borrower or Guarantor, provided, however, that Borrower and
Guarantor shall have the right to contest the amount or validity of
any such lien, by appropriate legal proceedings if: (x) the legal
proceedings shall operate to prevent the collection of such lien
and (y) Borrower and Guarantor shall deposit with AAL or with the
appropriate court or other governmental authority or title
insurance company satisfactory to AAL an amount, with such
subsequent additions thereto as may be necessary or sufficient in
AAL's opinion to pay such liens, together with all estimated
interest and penalties in connection therewith;
(vii) taxes and fees required to be paid to any government
entity for the transfer of title;
(viii) damages suffered by AAL due to material
misrepresentation or waste committed by Xxxxxxxx, Guarantor or
their respective agents or employees; and
(ix) all actual attorneys' fees and other costs incurred by
AAL in order to recover from Borrower and/or Guarantor any amounts
for which Borrower or Guarantor remains personally liable as
provided in subparagraphs (i) through (viii) above.
Further, Xxxxxxxx and Guarantor shall remain personally liable
for the prompt payment of the Loan, to the extent of the then
outstanding principal amount of the Loan, plus accrued but unpaid
interest thereon and any other sums due pursuant to the Note, this
Guaranty or the Loan Documents, and actual attorneys' fees and all
other costs of collection, upon the occurrence of any of the
following:
(i) Borrower or Guarantor used fraud to induce AAL to make
the Loan evidenced by the Note;
(ii) AAL is prevented from acquiring title to the Mortgaged
Property following an Event of Default and AAL is unsuccessful in
collecting on any title insurance policy that it holds in
connection with the Mortgaged Property because of forfeiture of
Borrower's or Guarantor's title under federal, state or local laws;
(iii) Borrower or Guarantor voluntarily files a petition or
commences any case or proceeding under any provision or chapter of
the United States Bankruptcy Code or any partner of Borrower or
Guarantor, or Xxxxxxxx X. Xxxxxxxx or any entity controlled by
Xxxxxxxx X. Xxxxxxxx files an involuntary petition against Borrower
or Guarantor;
(iv) Borrower or Guarantor makes an unconsented transfer of
interest in the Mortgaged Property as defined in Section 1.3
("Dispositions") of the Deed of Trust.
Guarantor expressly agrees that Guarantor's liability to AAL
shall, at AAL's option, upon the occurrence of an Event of Default,
become at once fixed, liquidated, due and payable, without
condition, offset or counterclaim, and AAL shall not be required to
make demand upon or first seek satisfaction from Borrower, or from
any other guarantor or any indorser, surety or other party or any
security or collateral, or to pursue any other remedy whatsoever,
notwithstanding any demand or request therefor by Guarantor, but
any payment of principal or interest thereafter by Borrower shall
toll the statute of limitations against Guarantor.
This Guaranty shall be a continuing guaranty and shall bind
Guarantor and its respective successors and assigns, and Guarantor
shall remain liable for all obligations and liabilities of Borrower
(construed and determined without regard to the non-recourse
provisions of the Note) as specified above, from the date hereof
until the principal, accrued interest and all other sums due
pursuant to the Note or the Loan Documents are paid and discharged
in accordance with the terms thereof. Otherwise, this Guaranty
shall remain in full force and effect.
Guarantor consents and agrees that AAL may, without prejudice
to any claim against Guarantor hereunder, and without affecting in
any manner the liability of Guarantor hereunder at any time or from
time to time, in its discretion with or without consideration, and
without notice to Guarantor: (1) extend or change the time of
payment, or the manner, place or terms of payment of or otherwise
modify any obligation hereby guaranteed; (2) exchange, release or
surrender all or any collateral security for any such obligation;
(3) sell and itself purchase any such collateral security at public
or private sale and apply the proceeds in its discretion to any
indebtedness of Borrower; and (4) settle or compromise with
Borrower or with any other person primarily or secondarily liable
with Borrower, any obligation hereby guaranteed, or subordinate the
payment of any such obligation to payment of any other debt which
may be owing to AAL.
Guarantor waives notice of acceptance, presentment, demand,
protest, all other notices of every kind and the benefit of all
homestead and other exemptions and valuation and appraisement laws.
Guarantor, to the fullest extent permitted by law, waives any
defense arising by reason of any disability or other defense of
Borrower or by reason of the cessation from any cause whatsoever of
Borrower, and agrees that this Guaranty shall be valid and
enforceable without regard to the regularity, validity or
enforceability of any liability or obligation of Borrower.
Specifically, but without limitation, Guarantor's obligations
hereunder shall not be impaired, changed, limited or released by
Xxxxxxxx's bankruptcy. Guarantor shall have no right of
subrogation, and waives any right to enforce any remedy which AAL
now has or may hereinafter have against Borrower, and waives any
benefit of and any right to participate in any security now or
hereafter held by AAL.
Xxxxxxxxx agrees to pay XXX's actual attorney's fees and all
other costs of collection in enforcing this Guaranty.
All rights under this Guaranty shall inure to the benefit of
AAL, its successors and assigns, and any holder (whether with or
without recourse) of any or all of the loan covered by this
Guaranty.
Waiver of any right, covenant or benefit herein by AAL shall
not waive any other or further right, covenant or benefit or bind
AAL again to waive the same provision. If maturity of the
obligation hereby guaranteed is accelerated as against Borrower,
such maturity shall also be accelerated hereunder, without demand
or notice.
This Guaranty shall be governed by and construed in accordance
with the laws of the jurisdiction wherein the Mortgaged Property is
located.
Guarantor hereby consents to the exercise of personal
jurisdiction over it by any federal or state court in the State of
Maryland and consents to the laying of venue in any jurisdiction or
locality in the State of Maryland. Guarantor irrevocably appoints
as Guarantor's agent for receipt of service of process on his
behalf in connection with any suit, writ, attachment, execution or
discovery or supplementary proceedings in connection with the
enforcement of this Guaranty. Service shall be effected by any
means permitted by the court in which any action is filed, or, at
AAL's option, by mailing process, postage prepaid, by certified
mail, return receipt requested, either to Guarantor's agent at the
foregoing address or to Guarantor at Guarantor's address set forth
on the first page of this Guaranty. Service shall be deemed
effective upon receipt. Guarantor may designate a change of
address for purposes of this paragraph by written notice to AAL
given by certified mail, return receipt requested, at least
ten (10) days before such change of address is to become effective.
Signed and sealed this _27th__ day of February, 1996.
GUARANTOR:
WITNESS: XXXXXXXXX'X WHARF BALTIMORE L.P.,
a Delaware limited partnership
By: HISTORIC PRESERVATION PROPERTIES 1990
L.P. TAX CREDIT FUND, general partner
By: BOSTON HISTORIC PARTNERS II LIMITED
PARTNERSHIP, its sole general
partner
By: BHP II ADVISORS LIMITED
PARTNERSHIP, its sole general
partner
By: PORTFOLIO ADVISORY
SERVICES, INC.
By: Xxxxxxxx X. Xxxxxxxx
President
and
By: Xxxxxxxx X. Xxxxxxxx,
General Partner
and
By: XXXXXXXXX'X WHARF DEVELOPMENT CORP.,
general partner
By: Xxxxxxxx X. Xxxxxxxx
President
