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FHLMC LOAN No. 981194184
EXCEPTIONS TO NON-RECOURSE GUARANTY
(GEORGIA)
This Exceptions to Non-Recourse Guaranty ("GUARANTY") is entered into
as of September 30, 1998, by the undersigned person(s) (the "GUARANTOR"
whether one or more), for the benefit of PRIMARY CAPITAL ADVISORS LC, and/or any
subsequent holder of the Note (the "LENDER").
RECITALS
X. XXXXXXX PROPERTIES RESIDENTIAL, L.P., a Georgia limited
partnership (the "BORROWER") has requested that Xxxxxx make a loan to Borrower
in the amount of $16,000,000.00 (the "LOAN"). The Loan will be evidenced by a
Multifamily Note from Borrower to Lender dated as of the date of this Guaranty
(the "NOTE"). The Note will be secured by a Multifamily Mortgage, Deed of Trust,
or Deed to Secure Debt dated the same date as the Note (the "SECURITY
INSTRUMENT"), encumbering the real property described in the Security Instrument
(the "PROPERTY").
B. As a condition to making the Loan to Borrower, Lender requires
that the Guarantor execute this Guaranty.
NOW, THEREFORE, in order to induce Lender to make the Loan to Borrower,
and in consideration thereof, Xxxxxxxxx agrees as follows:
1. "Indebtedness" and other capitalized terms used but not
defined in this Guaranty shall have the meanings assigned to them in the
Security Instrument.
2. Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to Lender the full and prompt payment when due, whether at maturity
or earlier, by reason of acceleration or otherwise, and at all times thereafter,
and the full and prompt performance when due, of all of the following:
(a) All amounts for which Xxxxxxxx is personally liable under
Paragraphs 9(c) through 9(f) of the Note.
(b) The payment and performance of all of Borrower's obligations
under Section 18 of the Security Instrument.
(c) The entire Indebtedness, in the event that (i) Borrower
voluntarily files for bankruptcy protection under the United
States Bankruptcy Code or voluntarily becomes subject to any
reorganization, receivership, insolvency proceeding or
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other similar proceeding pursuant to any other federal or
state law affecting debtor and creditor rights, or (ii) an
order for relief is entered against Borrower in any
involuntary bankruptcy filing by any creditor of Borrower
(other than Lender) pursuant to the United States Bankruptcy
Code or other federal or state law affecting debtor and
creditor rights.
(d) All costs and expenses, including reasonable fees and out of
pocket expenses of attorneys and expert witnesses, incurred by
Xxxxxx in enforcing its rights under this Guaranty.
For purposes of determining Guarantor's liability under this Guaranty, all
payments made by Borrower with respect to the Indebtedness and all amounts
received by Lender from the enforcement of its rights under the Security
Instrument shall be applied first to the portion of the Indebtedness for which
neither Borrower nor Guarantor has personal liability.
3. The obligations of Guarantor under this Guaranty shall survive
any foreclosure proceeding, any foreclosure sale, any delivery of any deed in
lieu of foreclosure, and any release of record of the Security Instrument, and,
in addition, the obligations of Guarantor relating to Borrower's obligations
under Section 18 of the Security Instrument shall survive any repayment or
discharge of the Indebtedness.
4. Guarantor's obligations under this Guaranty constitute an
unconditional guaranty of payment and not merely a guaranty of collection.
5. The obligations of Guarantor under this Guaranty shall be
performed without demand by Lender and shall be unconditional irrespective of
the genuineness, validity, regularity or enforceability of the Note, the
Security Instrument, or any other Loan Document, and without regard to any other
circumstance which might otherwise constitute a legal or equitable discharge of
a surety or a guarantor. Guarantor hereby waives the benefit of all principles
or provisions of law, statutory or otherwise, which are or might be in conflict
with the terms of this Guaranty and agrees that Guarantor's obligations shall
not be affected by any circumstances, whether or not referred to in this
Guaranty, which might otherwise constitute a legal or equitable discharge of a
surety or a guarantor. Guarantor hereby waives the benefits of any right of
discharge under any and all statutes or other laws relating to guarantors or
sureties and any other rights of sureties and guarantors thereunder. Without
limiting the generality of the foregoing, Guarantor hereby waives, to the
fullest extent permitted by law, diligence in collecting the Indebtedness,
presentment, demand for payment, protest, all notices with respect to the Note
and this Guaranty which may be required by statute, rule of law or otherwise to
preserve Lender's rights against Guarantor under this Guaranty, including, but
not limited to, notice of acceptance, notice of any amendment of the Loan
Documents, notice of the occurrence of any default or Event of Default,
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notice of intent to accelerate, notice of acceleration, notice of dishonor,
notice of foreclosure, notice of protest, and notice of the incurring by
Borrower of any obligation or indebtedness. Guarantor also waives, to the
fullest extent permitted by law, all rights to require Lender to (a) proceed
against Borrower or any other guarantor of Borrower's payment or performance
with respect to the Indebtedness (an "OTHER GUARANTOR") (b) if Borrower or any
Other Guarantor is a partnership, proceed against any general partner of
Borrower or the Other Guarantor, (c) proceed against or exhaust any collateral
held by Lender to secure the repayment of the Indebtedness, or (d) pursue any
other remedy it may now or hereafter have against Borrower, or, if Borrower is a
partnership, any general partner of Borrower. In addition, Guarantor waives the
benefit of O.C.G.A. ss. 10-7-24.
6. At any time or from time to time and any number of times,
without notice to Guarantor and without affecting the liability of Guarantor,
(a) the time for payment of the principal of or interest on the Indebtedness may
be extended or the Indebtedness may be renewed in whole or in part; (b) the time
for Borrower's performance of or compliance with any covenant or agreement
contained in the Note, the Security Instrument or any other Loan Document,
whether presently existing or hereinafter entered into, may be extended or such
performance or compliance may be waived; (c) the maturity of the Indebtedness
may be accelerated as provided in the Note, the Security Instrument, or any
other Loan Document; (d) the Note, the Security Instrument, or any other Loan
Document may be modified or amended by Lender and Borrower in any respect,
including, but not limited to, an increase in the principal amount; and (e) any
security for the Indebtedness may be modified, exchanged, surrendered or
otherwise dealt with or additional security may be pledged or mortgaged for the
Indebtedness.
7. If more than one person executes this Guaranty, the
obligations of those persons under this Guaranty shall be joint and several.
Lender, in its sole and absolute discretion, may (a) bring suit against
Guarantor, or any one or more of the persons constituting Guarantor, and any
Other Guarantor, jointly and severally, or against any one or more of them; (b)
compromise or settle with any one or more of the persons constituting Guarantor
for such consideration as Lender may deem proper; (c) release one or more of the
persons constituting Guarantor, or any Other Guarantor, from liability; and (d)
otherwise deal with Guarantor and any Other Guarantor, or any one or more of
them, in any manner, and no such action shall impair the rights of Lender to
collect from Guarantor any amount guaranteed by Guarantor under this Guaranty.
Nothing contained in this paragraph shall in any way affect or impair the rights
or obligations of Guarantor with respect to any Other Guarantor.
8. Any indebtedness of Borrower held by Guarantor now or in the
future is and shall be subordinated to the Indebtedness and any such
indebtedness of Borrower shall be collected, enforced and received by Guarantor,
as trustee for Lender, but without reducing or affecting in any manner the
liability of Guarantor under the other provisions of this Guaranty.
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9. Guarantor shall have no right of, and hereby waives any claim
for, subrogation or reimbursement against Borrower or any general partner of
Borrower by reason of any payment by Guarantor under this Guaranty, whether such
right or claim arises at law or in equity or under any contract or statute,
until the Indebtedness has been paid in full and there has expired the maximum
possible period thereafter during which any payment made by Borrower to Lender
with respect to the Indebtedness could be deemed a preference under the United
States Bankruptcy Code.
10. If any payment by Borrower is held to constitute a preference
under any applicable bankruptcy, insolvency, or similar laws, or if for any
other reason Lender is required to refund any sums to Borrower, such refund
shall not constitute a release of any liability of Guarantor under this
Guaranty. It is the intention of Lender and Guarantor that Guarantor's
obligations under this Guaranty shall not be discharged except by Guarantor's
performance of such obligations and then only to the extent of such performance.
11. Guarantor shall from time to time, upon request by Xxxxxx,
deliver to Lender such financial statements as Lender may reasonably require.
12. Lender may assign its rights under this Guaranty in whole or
in part and upon any such assignment, all the terms and provisions of this
Guaranty shall inure to the benefit of such assignee to the extent so assigned.
The terms used to designate any of the parties herein shall be deemed to include
the heirs, legal representatives, successors and assigns of such parties; and
the term "LENDER" shall include, in addition to Lender, any lawful owner, holder
or pledgee of the Note.
13. This Guaranty and the other Loan Documents represent the final
agreement between the parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements. There are no unwritten oral
agreements between the parties. All prior or contemporaneous agreements,
understandings, representations, and statements, oral or written, are merged
into this Guaranty and the other Loan Documents. Guarantor acknowledges that it
has received copies of the Note and all other Loan Documents. Neither this
Guaranty nor any of its provisions may be waived, modified, amended, discharged,
or terminated except by an agreement in writing signed by the party against
which the enforcement of the waiver, modification, amendment, discharge, or
termination is sought, and then only to the extent set forth in that agreement.
14. Guarantor agrees that any controversy arising under or in
relation to this Guaranty shall be litigated exclusively in the jurisdiction
where the Land is located (the "PROPERTY JURISDICTION"). The state and federal
courts and authorities with jurisdiction in the Property
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Jurisdiction shall have exclusive jurisdiction over all controversies which
shall arise under or in relation to this Guaranty, the Note, the Security
Instrument or any other Loan Document. Guarantor irrevocably consents to
service, jurisdiction, and venue of such courts for any such litigation and
waives any other venue to which it might be entitled by virtue of domicile,
habitual residence or otherwise.
15. XXXXXXXXX AND XXXXXX EACH (A) AGREES NOT TO ELECT A TRIAL BY
JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS GUARANTY OR THE RELATIONSHIP
BETWEEN THE PARTIES AS GUARANTOR AND XXXXXX THAT IS TRIABLE OF RIGHT BY A JURY
AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE
EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO
TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH
THE BENEFIT OF COMPETENT LEGAL COUNSEL.
ATTACHED EXHIBIT. The following Exhibit is attached to this Guaranty:
|__| Exhibit A Modifications to Guaranty
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IN WITNESS WHEREOF, Xxxxxxxxx has signed and delivered this Guaranty or
has caused this Guaranty to be signed and delivered by its duly authorized
representative.
XXXXXXX REALTY INVESTORS, INC., a
Georgia corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Title:
Attest: /s/ Xxxxxxx X. Xxxxxxx
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Title: CFO
[CORPORATE SEAL]
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