GUARANTY
THIS GUARANTY dated as of July 8, 1987, by Xxxxx X. Xxxxxxxx (hereinafter
the "Guarantor") in respect to an indebtedness of FPI Chesterfield, Ltd.
(the "Borrower") in favor of Fogelman Mortgage L.P. I ("Lender") evidenced by
the Westbury Park Multi-Family Housing Facility Note dated as of July 8, 1987
(the "Facility Note") in the principal amount of $23,320,000.
W I T N E S S E T H:
WHEREAS, the Guarantor is a resident of the State of Tennessee;
WHEREAS, Borrower is a Missouri limited partnership which wishes to borrow
from Lender $23,320,000 for the purpose of financing the acquisition,
construction and equipping of the Facility to be located on the Land.
WHEREAS, as a condition to lending such sum to Borrower, Lender requires that
the Guarantor execute and deliver this Guaranty.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guarantor
hereby agrees for the benefit of Lender and any future holders of the Facility
Note as follows:
1. All capitalized, undefined terms used herein shall have the same meanings
as in the Loan Agreement of even date herewith between Borrower and Lender.
2. The Guarantor hereby guarantees: (a) that, subject to Section 10.1(b) of
the Loan Agreement, the Facility shall be completed in accordance with the
Plans and Specifications no later than September 1, 1989 , for which purposes
the construction of the Facility shall be deemed to be completed on the
Completion Date; (b) that Borrower shall fully and punctually pay and
discharge any and all proper costs and expenses directly attributable to the
construction and completion of the Facility, including the discharge of all
proper claims and demands for labor, materials, services and
equipment used or obtained for or in connection with the construction and
completion of the Facility; (c) the prompt and complete payment to Lender of
all obligations and liabilities, except as limited in paragraph 11 below,
under and evidenced by the Facility Note (all such obligations and liabilities
being herein called the "Obligations"); and (d) the payment of any and all
expenses which may be paid or incurred by Lender in collecting any or all of
the Obligations and/or enforcing any rights under this Guaranty. Lender shall
give written notice to Guarantor of all defaults under or in respect to the
Obligations within five (5) days after discovery thereof by Lender.
3. If the Borrower shall fail to make any payment under the Facility Note
prior to an event of default thereunder (any such event being called herein a
"Default"), Lender is hereby authorized at any time or from time to time,
after five (5) days prior written notice to the Guarantor, to set off,
appropriate and apply all credits, indebtedness or claims (in each case
whether direct or indirect, or contingent or matured or unmatured) at any time
held or owing by Lender as a result of its holding the Facility Note to or for
the credit of the Guarantor, against and on account of the obligations and
liabilities of such Guarantor hereunder, as Lender may elect, although said
obligations, liabilities of, or claims against such Guarantor shall be
contingent or matured or unmatured.
4. Notwithstanding any payment or payments made by the Guarantor hereunder or
any set off or application of funds to the Guarantor by Lender, the Guarantor
shall not be entitled to be subrogated to any of the rights of Lender against
the Borrower, or to any collateral security or guarantee or right of offset
held by Lender for the satisfaction of the Obligations, until all amounts
owing to Lender by the Borrower pursuant to the terms of the Facility Note are
paid in full.
5. The Guarantor hereby consents, without the necessity of any reservation of
rights against such Guarantor, that any demand for satisfaction of the
Obligations made by Lender may be rescinded by Lender and any of the
Obligations continued, and the Obligations, or the liability of any other
party upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by Lender; and the Facility Note,
the Mortgage and the Loan Agreement or other guarantee or document in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as Lender may deem advisable from time to time, and any
collateral security or guarantee or right of offset at any time held by Lender
for the satisfaction of the Obligations may be sold, exchanged, waived,
surrendered or released (except a certain Deed of Trust, Assignment of Rents
and Leases and Security Agreement dated July 14, 1987, by
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and between the Borrower and a mortgage trustee, named therein, for the
benefit of Lender) all without the necessity of any reservation of rights
against such Guarantor, who will remain bound hereunder, notwithstanding any
such renewal, extension, modification, acceleration, compromise, amendment,
supplement, termination, sale, exchange, waiver, surrender or release. Prior
to making any demand hereunder against the Guarantor, Lender shall give the
Guarantor five (5) days prior written notice of its intention so to do and
Lender may, but shall be under no obligation to, make a similar demand on the
Borrower, and any failure by Lender to make any such demand or to collect any
payments from the Borrower or any release of the Borrower shall not relieve
Guarantor of the obligations or liabilities hereunder, and shall not impair
or affect the rights and remedies, express or implied, or as a matter of law,
of Lender against Guarantor. For purposes hereof, "demand" shall include the
commencement and continuance of any legal proceedings.
6. Lender shall give the Guarantor five (5) days prior written notice of the
modification, renewal or extension of the Facility Note, the Mortgage or the
Loan Agreement. Notice or proof of reliance by Lender upon this Guaranty or
acceptance of this Guaranty, and the Facility Note, the Mortgage or the Loan
Agreement shall conclusively be deemed to have been created, contracted or
incurred in reliance upon this Guaranty, and all dealings between the Borrower
or such Guarantor and Lender shall likewise be conclusively presumed to have
been had or consummated in reliance upon this Guaranty. Except as otherwise
provided herein, the Guarantor waives diligence, presentment, protest, and
demand for payment or nonpayment to or upon the Borrower or such Guarantor
with respect to the Obligations. This Guaranty shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
the validity, regularity or enforceability of the Facility Note, the Mortgage
or the Loan Agreement, any of the Obligations or any collateral security or
guarantee therefor or right of offset with respect thereto at any time or from
time to time held by Lender and without regard to any defense, setoff or
counterclaim which may at any time be available to or be asserted by the
Borrower against Lender, or by any other circumstance whatsoever (with or
without notice to or knowledge of the Borrower or Guarantor) which constitutes,
or might be construed to constitute, an equitable or legal discharge of the
Borrower for the Obligations, or of Guarantor under this Guaranty, in
bankruptcy or in any other instance, and the obligations and liabilities of
Guarantor hereunder shall not be conditioned or contingent upon the pursuit by
Lender or any other person at any time of any right or remedy against the
Borrower or against any other person which may be or become liable in respect
of all or any part of the Obligations or against any collateral security or
guarantee therefor or right of offset with respect thereto. This Guaranty
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms upon the Guarantor and his heirs and assigns, and
shall insure to the
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benefit of Lender, and its successors, endorsees, transferees and assigns, and
for the benefit of any holder from time to time of the Facility Note, until
all the Obligations and the obligations of the Guarantor under this Guaranty
shall have been satisfied in full.
7. This Guaranty shall continue to be effective, or be reinstated, as the case
may be, if at any time payment of any of the Obligations is rescinded or must
otherwise be restored or returned by Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Borrower, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
8. The Guarantor hereby guarantees that the Obligations, if monetary, will be
paid to Lender at 0000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000. All such payments
shall be made in lawful currency of the United States of America and in
immediately available funds.
9. In order to induce Lender to accept this guaranty, the Guarantor hereby
represents and warrants that:
(a) The Guarantor is a resident of the State of Tennessee and subject to the
laws of the State of Tennessee and has full power, authority and legal right
to own his property and to transact the business in which he is engaged;
(b) The Guarantor has full power, authority and legal right to execute and
deliver and to perform his obligations under this Guaranty, and has taken all
necessary legal action to authorize the guaranty hereunder on the terms and
conditions of this Guaranty and to authorize the execution, delivery and
performance of this Guaranty;
(c) This Guaranty constitutes a legal, valid and binding obligation of such
Guarantor enforceable in accordance with its terms;
(d) The execution, delivery and performance of this Guaranty will not violate
any provision of any law or regulation or order, decree or award of any court,
arbitrator or governmental authority, bureau or agency, or of any mortgage,
indenture, security agreement, contract or other undertaking to which
Guarantor as a party or which purports to be binding upon him or any of his
assets or result in the creation or imposition of any mortgage, pledge,
hypothecation, assignment, security interest, lien, charge or encumbrance or
preference, priority or title retention or other security arrangement of any
nature whatsoever on or with respect to any of the assets
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of Guarantor pursuant to the provisions of any of the foregoing;
(e) All consents of other persons and all consents, licenses, approvals and
authorizations of, exemptions by, and registrations or declarations with, any
governmental authority, bureau or agency required in connection with the
execution, delivery, performance, validity or enforceability of this Guaranty
have been obtained and are in full force and effect;
(f) No litigation, arbitration or administrative proceeding of or before any
court, arbitrator or governmental authority, bureau or agency is currently
pending or, to the knowledge of Guarantor, threatened (i) with respect to any
of the transactions contemplated by this Guaranty or (ii) against or affecting
Guarantor, or any of his assets, which, if adversely determined, would have a
material adverse effect on the business, operations or financial condition of
Guarantor;
(g) At all times during the term of this Guaranty, Guarantor shall comply with
each of the following:
(i) Until the Completion Date, Guarantor shall maintain a net worth
computed in accordance with Generally Accepted Accounting Principles
consistent with those applied in preparation of financial statements of
individuals of not less than Seventy-Five Million Dollars ($75,000,000);
(ii) From and after the Completion Date and until, for not less than six (6)
consecutive months, the Net Operating Income derived from the operation of the
Facility is equal to or exceeds an amount equal to the then current Monthly
Basic Interest due pursuant to the Facility Note, Guarantor shall maintain a
net worth computed in accordance with Generally Accepted Accounting Principles
consistent with those applied in preparation of financial statements of
individuals of not less than Sixty-five Million Dollars ($65,000,000);
(iii) From and after the date described in Paragraph 9(g)(ii) hereof,
Guarantor shall maintain a net worth computed in accordance with Generally
Accepted Accounting Principles consistent with those applied in preparation of
financial statements of individuals of not less than Fifty Million Dollars
($50,000,000); and
(h) Guarantor shall, during the term of the Guaranty, deliver to Issuer on or
before April 1 of each year copies of Guarantor's financial statement for
the
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immediately preceding calendar year, which financial statement shall be
prepared in accordance with Generally Accepted Accounting Principles
consistent with those applied in preparation of financial statements
of individuals and shall be certified by Guarantor as true and correct.
10. No failure to exercise and no delay in exercising, on the part of Lender,
any right, power or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or privilege
preclude any other power or further exercise thereof, or the exercise of any
other power or right. The rights and remedies herein provided are cumulative
and not exclusive of any rights or remedies provided by law.
11. Notwithstanding any other provision of this Guaranty to the contrary, the
Guarantor's liability hereunder shall be limited as follows:
(a) In no event shall Guarantor have any liability for any Contingent
Interest due under the terms of the Facility Note;
(b) Upon the later of (i) three (3) years from the date of the Facility Note
or (ii) until for not less than six (6) consecutive months the Net Operating
Income (as defined below) derived from the operation of the Facility is equal
to or exceeds an amount equal to the then current monthly Basic Interest due
pursuant to the Facility Note multiplied by 110%, the Guarantor's liability
hereunder shall be limited to thirty percent (30%) of the principal amount of
the Facility Note; and
(c) Anything herein to the contrary notwithstanding, upon the later of (i)
three (3) years from the date of the Facility Note or (ii) until for not less
than six (6) consecutive months the Net Operating Income (as defined below)
derived from the operation of the Facility is equal to or exceeds an amount
equal to the then current monthly Basic Interest due pursuant to the Facility
Note multiplied by 120%, the Guarantor's liability hereunder shall be limited
to twenty percent (20%) of the principal amount of the Facility Note.
12. As used herein, the term "Net Operating Income" shall mean the excess of
Gross Receipts over Operating Expenses determined on an accrual basis in
accordance with generally accepted accounting principles except as otherwise
specifically provided herein and will be computed on a monthly basis.
(a) "Gross Receipts" shall mean (i) the rentals from residential tenants
determined on an accrual basis of accounting with a normal and customary
offset for bad debts, if necessary, (ii) charges to concessionaires,
fees
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charged to licensees and all other gross income from all sources whatsoever,
earned by the owner of the Facility from tenants, concessionaires, licensees
or occupants of the Facility, arising out of the occupancy or use of the
Facility or any part thereof by said tenants, concessionaires, licensees or
occupants of the Facility including, without limitation, rents or fees
relating to the use of the utilities, common areas or recreational facilities,
tax or escalation payments (including payments for electricity under rent
inclusion plans), concession income, parking charges, income from vending
machines, such other gross income earned by the owner of the Facility for the
rental or use of furnishings, furniture or service furnished to said tenants,
concessionaires, licensees or occupants by Borrower, the fair rental value of
any models or employee apartments, and interest on monies held by the owner
of the Facility or the managing agent for the account of the owner (but not
including interest on capital contributions to the owning entity and held by
or for the account of the owner), and (iii) insurance proceeds received by the
owner of the Facility related either to loss of rents or business interruption
insurance or casualty insurance (in such latter event, excluding those amounts
paid to Issuer as principal repayment or used for restoration or replacement
related to such casualty).
(b) "Operating Expenses" shall mean only the following expenses and costs
payable by or for the account of the owner of the Facility which are, in the
aggregate, reasonable, normal and customary or any of the following expenses
and costs which are required by Issuer:
(i) Expenses (to the extent not included in the management fee and to the
extent not paid directly by tenants of the Facility) for electricity service
to the common areas of the Facility, water and sewer costs, the cost of
rubbish removal, and other services, legal and accounting fees relating to
the Facility and the fair rental value of any models or employee apartments.
(ii) A management fee of five (5%) percent of the amount of rents and
miscellaneous income related to the Facility collected including any security
deposit forfeitures payable to Fogelman Management Corporation or any managing
agent approved by Issuer (without Issuer's prior written consent, Borrower
shall not pay a management fee in excess of five (5%) percent of the amount
of rents and miscellaneous income related to the Facility collected).
(iii) Ad valorem real estate taxes and assessments incurred with respect to
any governmental
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IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed and delivered on the day and year first above written.
/s/ Xxxxx X. Xxxxxxxx
____________________________
XXXXX X. XXXXXXXX, GUARANTOR
ACCEPTED BY: FOGELMAN MORTGAGE L.P. I
By Xxxxxxxx Properties, Inc.
General Partner
By: /s/ L. Xxx Xxxxxxxx, Jr.
_________________________
L. Xxx Xxxxxxxx, Jr.
Vice President
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