EXHIBIT 10.15.06
Compass
Bank
CONTINUING GUARANTY
(UNLIMITED)
(1) FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, the undersigned (hereinafter called "Guarantor")
unconditionally guaranties and promises to pay to COMPASS BANK (hereinafter
called '"Bank") or order in lawful money of the United States, any and all
Indebtedness of XXXXXXX PROPERTIES RESIDENTIAL, L.P., a Georgia limited
partnership (hereinafter called "Borrower") to Bank. The word 'Indebtedness" is
used herein in its most comprehensive sense and includes any and all advances,
debts, obligations and liabilities of Borrower to Bank, heretofore, now, or
hereafter existing, made, incurred or created, whether voluntary or involuntary
and however arising, whether due or not due, absolute or contingent, liquidated
or unliquidated, determined or undetermined, not limited to, but including
principal, interest, cost of collection, attorney's fees and all other lawful
charges, and whether Borrower may be liable individually or jointly with others,
or whether recovery upon such Indebtedness maybe or hereafter become barred by
any statute of limitations, or whether such Indebtedness may be now or hereafter
become otherwise unenforceable.
(2) The liability of Guarantor shall be unlimited and shall cover all
Indebtedness of Borrower to Bank. This is a continuing guaranty relating to any
Indebtedness, including Indebtedness arising under successive transactions which
shall either continue Indebtedness or from time to time renew Indebtedness after
such Indebtedness has been satisfied. This Guaranty shall remain in effect until
Bank's written acknowledgment of Bank's receipt of written notice of revocation
by Guarantor as to future transactions, and even after Bank's receipt and
acknowledgment or revocation, this Guaranty shall remain effective as to
Indebtedness then outstanding, and as to all advances or extensions of credit
made to or on behalf of Borrower subsequent thereto pursuant to any commitment
or credit arrangement relating to any Indebtedness in effect at the time of
Bank's acknowledgment of revocation which commitment or credit arrangement
permits, provides for or obligates Bank to make such advance or extension of
credit, including any construction loan, line of credit or letter of credit. A
notice of revocation shall be effective only with respect to those of the
Guarantors (if more than one) as shall have given notice of revocation as
specified herein. Notwithstanding anything to the contrary contained or implied
herein or in any other document, this Guaranty may not be revoked or terminated,
other than with the prior written consent of the Bank, except upon strict
compliance with the conditions and requirements heretofore set forth in this
Section (2), and this Guaranty will not be revoked or terminated by any action,
event or circumstance, including payment in full of all of the Indebtedness. In
the event any sums or other things of value that are paid or transferred to or
otherwise received by the Bank are rescinded, recovered, required to be
returned, set aside, rendered void or otherwise adversely affected in any legal
proceeding or for any cause whatsoever, including under any law, rule or
regulation relative to bankruptcy, insolvency, fraudulent transfers or other
relief of debtors, then this Guaranty shall continue to be effective or shall be
revived and reinstated, as necessary in order to give full effect to the
Guarantor's liability hereunder, to the same extent as if such payment, transfer
and/or receipt had never occurred. This Guaranty shall not release, modify,
revoke or terminate any other guaranty heretofore or hereafter executed by
Guarantor; nor shall any other guaranty heretofore or hereafter executed by
Guarantor release, modify, revoke or terminate this Guaranty unless such other
guaranty specifically refers to this Guaranty and the release, modification,
revocation or termination (as applicable) is accepted by Bank in writing.
(3) The obligations of the Guarantor hereunder are independent of the
obligations of Borrower, and a separate action or actions may be brought and
prosecuted against the Guarantor whether action if brought against Borrower or
whether the Borrower or Guarantor is joined in any such action or actions.
(4) It is the intent hereof that this obligation of Guarantor shall be and
remain unaffected, (a) by the existence or non-existence, validity or
invalidity, of any pledge, assignment or conveyance given as security; or (b) by
any understanding or agreement that any other person, firm or corporation was or
is to execute this or any other guaranty, any of the notes evidencing the
Indebtedness, or any part thereof, or any other document or instrument or was or
is to provide collateral for any Indebtedness; or (c) by resort on the part of
Bank, or failure of Bank to resort, to any other security or remedy for the
collection of said Indebtedness; or (d) by the bankruptcy, insolvency or
dissolution of the Guarantor, the Borrower or any other person, and in case of
any such bankruptcy, the failure of Bank to file a claim against such bankrupt's
estate, or the failure of Bank otherwise to seek remedies as a consequence of
such events.
(5) The Guarantor authorizes Bank, without notice or demand and without
affecting the Guarantor's liability hereunder, from time to time to (a) renew,
compromise, extend, accelerate, restate, consolidate, replace, refinance or
otherwise change the time for payment of, or otherwise change the terms of, the
Indebtedness or any part thereof, including increasing or decreasing the rate of
interest thereof; (b) take and hold security for the payment of this Guaranty or
any of the Indebtedness and/or exchange, modify, enforce, waive and release any
such security; (c) apply such security and direct the order or manner of sale
thereof as Bank in its discretion may determine; and/or (d) release or
substitute the Borrower or other obligors, endorsers or guarantors of all or any
part of the Indebtedness (including, without limitation, the Guarantor).
(6) The Guarantor waives any right to require Bank (a) to proceed against
the Borrower; (b) to protect, preserve, proceed against or exhaust any security
held from Borrower; or (c) to pursue any other remedy in Bank's power
whatsoever. The Guarantor waives any defense arising by reason of any disability
or other defense of the Borrower or Guarantor (including any defense based on or
arising out of the unenforceability of any part of the Indebtedness for any
cause whatsoever) or by reason of the cessation from any cause whatsoever of the
liability of the Borrower or Guarantor. Until all Indebtedness shall have been
paid in full, Guarantor shall not have any rights of subrogation, reimbursement,
contribution or indemnity or any right of recourse to any assets or properties
of the Borrower, and the Guarantor waives (i) all such rights, if any, of
subrogation, reimbursement, contribution, indemnity and recourse, (ii) any right
to enforce any remedy which Bank now has or may hereafter have against the
Borrower or the Guarantor and (iii) any benefit of, and any right of recourse to
or to participate in any security now or hereafter held by Bank or otherwise
constituting collateral for any Indebtedness. The Guarantor waives all
presentments, demands for performance, notices of nonperformance, notice of
acceleration, notice of intent to accelerate, protests, notices of protest,
notices of dishonor, and notices of acceptance of this Guaranty and of the
existence, creation, or incurrence of new or additional Indebtedness, and waives
any rights or defenses based, in whole or in part, upon an offset by the
Borrower or Guarantor against any
obligation or Indebtedness now or hereafter owed to the Borrower or the
Guarantor (including to the Guarantor by the Borrower). The Guarantor waives the
benefit of any statute of limitations or other defenses affecting the Borrower's
liability for the Indebtedness or the enforcement thereof or such Guarantor's
liability hereunder or the enforcement thereof, and the Guarantor further agrees
that any payment by the Borrower or other circumstances that operate to toll any
statute of limitations as to the Borrower shall operate to toll statute of
limitations as to the Guarantor. The Guarantor waives any rights to exemption
under the constitution of the State of Alabama or any other state as to any
indebtedness or obligation created hereunder.
(7) In addition to all liens upon, and rights of setoff against, moneys,
securities or other property of the Guarantor given to Bank by law, Bank shall
have and hereby is granted a lien upon, security interest in and a right of
setoff against all moneys, securities and other property of the Guarantor now or
hereafter in the possession of or on deposit with Bank, whether held in a
general or special account or deposit, or for safekeeping or otherwise; and
every such lien, security interest or right of setoff may be exercised without
demand upon or notice to the Guarantor. No lien, security interest or right of
setoff shall be deemed to have been waived by any act or conduct on the part of
Bank, or by failure to exercise such right of setoff or to enforce such lien or
security interest, or by any delay in so doing, and every right of setoff and
lien shall continue in full force and effect until such right of setoff or lien
specifically is waived or released in a written instrument executed by Bank.
(8) Any indebtedness of the Borrower to the Guarantor, whether now existing,
hereafter arising, secured or unsecured, and if secured, the security for same,
hereby is subordinated to the Indebtedness; and such subordinated indebtedness,
if Bank so requests, shall be collected, enforced and received by such Guarantor
as trustee for Bank and be paid over to Bank on account of the Indebtedness but
without reducing or affecting in any manner the liability of the Guarantor under
this Guaranty.
(9) Where the Borrower or Guarantor are corporations, partnerships, joint
ventures, trusts, limited liability companies, business organizations or
enterprises, it shall not be necessary for Bank to inquire into the power or
authority of Borrower or Guarantor or the officers, directors, partners,
trustees or agents acting or purporting to act on their behalf.
(10) Guarantor shall pay attorney's fees actually incurred based on the
attorney's normal hourly rate and the number of hours worked and not the
attorneys' fees statutorily defined in O.C.G.A. ss.13-1-11 and all other costs
and expenses which are incurred by Bank in the enforcement of this Guaranty.
(11) No right or power of Bank hereunder shall be deemed to have been waived
by any act or conduct or failure or delay to act on the part of Bank or any of
its agents, employees or representatives; and the terms and provisions hereof
may not be waived, altered, modified, or amended except in writing duly signed
by a duly authorized officer of the Bank. In the event that Bank shall waive in
writing any provision or requirement hereunder, such waiver shall be effective
only for the specific purposes, circumstances and duration stated in said
waiver. Bank may without notice assign this Guaranty in whole or in part and
each reference herein to Bank shall be deemed to include its successors and
assigns. The provisions of the Guaranty are binding upon the Guarantor and the
legal representatives, personal representatives, successors and assigns thereof
and shall inure to the benefit of the Bank and each of its successors and
assigns. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE GUARANTOR AND THE
BANK HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF GEORGIA. The Guarantor acknowledges that any cause of action
arising under this Guaranty will be a cause of action arising from a Georgia
transaction and that it is foreseeable that this Guaranty and the performance
hereof have and will have significant effects in the State of Georgia, and that
Guarantor's execution of this Guaranty will subject Guarantor to judicial
jurisdiction in the State of Georgia. If any of the provisions of this Guaranty
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of the provisions of this Guaranty,
or the application of such provision or provisions to persons or circumstances
other than those as to whom or which it is held invalid or unenforceable, shall
not be affected thereby, and every provision of this Guaranty shall be valid and
enforceable to the fullest extent permitted by law. Except as expressly set
forth in this Guaranty, this Guaranty is the entire agreement of the Guarantor
and the Bank with respect to the guarantee of the Indebtedness by the Guarantor
and no representation, understanding, promise or condition concerning the
subject matter hereof shall be binding upon the Bank unless expressed herein.
Any notice by a Guarantor to the Bank shall be effective only upon the actual
receipt thereof by an officer of Bank at the address specified below, and in the
event no such address is specified, at Bank's principal corporate office in
Birmingham, Alabama, Attention: General Counsel.
(12) This Guaranty is given under the seal of all parties hereto, and it is
intended that this Guaranty is and shall constitute and have the effect of a
sealed instrument according to law.
2
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty under
seal effective as of the 1st day of June, 2000.
GUARANTOR:
0000 Xxxxxxx Xxxx, Xxxxx 000 Xxxxxxx Realty Investors, Inc., a Georgia
---------------------------- corporation
Xxxxxxx, Xxxxxxx 00000
ADDRESS OF GUARANTOR By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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[CORPORATE SEAL]
STATE OF Georgia )
COUNTY OF Hall )
I, Xxxxxx Xxxxxxx, a Notary Public in and for such County in said
State, hereby certify that Xxxxxxx X. Xxxxxxx, whose name as Chief Financial
Officer of Xxxxxxx Realty Investors, Inc., is signed to the foregoing
instrument, and is known to me, acknowledged before me on this day that, being
informed of the contents of the instrument, he, as such Chief Financial Officer
and with full authority, executed the same voluntarily for and as the act of
said Chief Financial Officer on the day the same bears date.
Given under my hand this 16th day of May, 2000.
/s/ Xxxxxx Xxxxxxx
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Notary Public
My commission expires: 8/19/03
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(NOTARIAL SEAL)
