Exhibit 10.12.5
--------------------------
COMPASS FILE
BANK UNDER:
--------------------------
--------------------------
LOAN
OFFICER:
--------------------------
--------------------------
CONTINUING GUARANTY
(UNLIMITED)
(1) FOR VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, the undersigned (hereinafter called
"Guarantors"), jointly and severally unconditionally guarantee and promise to
pay to COMPASS BANK (hereinafter called '"Bank" or order in lawful money of the
Unites States, any and all Indebtedness of XXXXXXX PROPERTIES RESIDENTIAL, L.P.,
a Georgia limited partnership (hereinafter called "Borrowers" to Bank. The word
'Indebtedness" is used herein in its most comprehensive sense and includes any
and all advances, debts, obligations and liabilities of Borrowers or any one or
more of them 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 Borrowers
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 Guarantors shall be unlimited and shall cover
all Indebtedness of Borrowers 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 one or more Guarantors 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 Borrowers 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 Guarantors' 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 any of the Guarantors; nor shall any other
guaranty heretofore or hereafter executed by any 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 Guarantors hereunder are joint and
several, and independent of the obligations of Borrowers, and a separate action
or actions may be brought and prosecuted against any one or more of the
Guarantors whether action if brought against Borrowers or any other Guarantor or
whether any of the Borrowers or other Guarantors are joined in any such action
or actions.
(4) It is the intent hereof that this obligation of Guarantors
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 death, bankruptcy, insolvency,
dissolution or incapacitation of any of the Guarantors, any of the Borrowers or
any other person, and in case of any such death or bankruptcy, the failure of
Bank to file a claim against the deceased Guarantor's estate or against such
bankrupt's estate, or the failure of Bank otherwise to seek remedies as a
consequence of such events.
(5) Each of the Guarantors authorizes Bank, without notice or
demand and without affecting any 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 any one or more of the borrowers or other
obligors, endorsers or guarantors of all or any part of the Indebtedness
(including, without limitation, any one or more of the Guarantors).
(6) Each of the Guarantors waives any right to require Bank (a) to
proceed against any one or more of the Borrowers or Guarantors; (b) to protect,
preserve, proceed against or exhaust any security held from Borrowers; or (c) to
pursue any other remedy in Bank's power whatsoever. Each of the Guarantors
waives any defense arising by reason of any disability or other defense of any
one or more of the Borrowers or Guarantors (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 any one or more of the Borrowers or Guarantors. Until all
Indebtedness shall have been paid in full, Guarantors shall not have any rights
of subrogation, reimbursement, contribution or indemnity or any right of
recourse to any assets or properties of any of the borrowers or any of the other
Guarantors, and each of the Guarantors 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 any one
or more of the Borrowers or any other 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. Each of the
Guarantors 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,
Exhibit 10.12.5
upon an offset by any one or more of the Borrowers or Guarantors against any
obligation or Indebtedness now or hereafter owned to any of the Borrowers or any
of the Guarantors (including to any Guarantor by any Borrower). Each of the
Guarantors 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 Guarantors liability hereunder or the enforcement thereof, and
each of the Guarantors further agrees that any payment by any of the Borrowers
or other circumstances that operate to toll any statute of limitations as to any
one or more Borrowers shall operate to toll statute of limitations as to each of
the Guarantors. Each of the Guarantors waives any rights to exemption under the
constitution of the State of Georgia 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 any one or more of the Guarantors 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 each of the Guarantors 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 any of the Guarantors.
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 any Borrower to any 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
any Guarantor under this Guaranty.
(9) Where any one or more of Borrowers or Guarantors 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 Borrowers or Guarantors or the officers,
directors, partners, trustees or agents acting or purporting to act on their
behalf.
(10) Guarantors shall pay attorney's fees 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 each of the Guarantors
and the heirs, distributees, executors, administrators, 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 GUARANTORS AND THE BANK HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
Each of the Guarantors acknowledges that any cause of action arising under this
Guaranty will be a cause of action arising from an Georgia transaction and that
the Indebtedness is owing to a banking organization organized under Alabama law
or that has its principal place of business in Alabama, that it is foreseeable
that this Guaranty and the performance hereof have and will have significant
effects in the State of Georgia, and that Guarantors' execution of this Guaranty
will subject Guarantors 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 Guarantors and the Bank with respect to the
guarantee of the Indebtedness by the Guarantors 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.
(13) Guarantor agrees that the Indebtedness guaranteed extends to
and includes any and all liability of Borrower under Section 1.17 of the Future
Advance Deed to Secure Debt, Assignment of Rents and Leases, and Security
Agreement (the "Deed to Secure Debt") executed by Borrower in connection with a
$6,500,000 loan from Bank to Borrower (the "Loan"), including, without
limitation, the indemnities set forth in said Section. Notwithstanding any other
provision of this Guaranty, the provisions of this paragraph shall automatically
expire and be of no further force and effect if, as and when the Indebtedness
secured hereby has been paid in full and (i) such payments have become final and
are not subject to being voided or refunded under the Bankruptcy Code or other
applicable law, and (ii) such satisfaction of Indebtedness did not result from
or was not related to the Bank accepting or acquiring title to the Property
described in the Deed to Secure Debt given by Borrower, whether by foreclosure,
deed in lieu of foreclosure, or otherwise. The Guarantor agrees that, unless the
provisions of this paragraph shall automatically expire pursuant to the
provisions of the preceding sentence, the Guarantor's guaranty of the
Indebtedness of Borrower with respect to the matters set forth in this paragraph
shall survive indefinitely, and shall not be extinguished by the payment of the
Loan, the exercise of any right or remedy under any Loan document including, but
not limited to foreclosure or the taking of a deed in lieu of foreclosure, or
any subsequent sale or transfer of the Property.
(14) Notwithstanding anything to the contrary in the Guaranty, the
term "Indebtedness" as use herein shall be limited to (i) the indebtedness of
Borrower to Bank evidenced by that certain Promissory Note of even date herewith
from Borrower payable to Bank in the principal amount of $6,500,000 (the
"Note"); and (ii) the payment and performance obligations of Borrower under the
terms of the (a) Deed to Secure Debt, and (b) any other documents or instruments
executed by Borrower to evidence or secure the Loan.
(15) Whenever reference is made to the payment of "reasonable
attorney's fees" or words of similar import in the Guaranty, the same shall mean
and refer to the payment of actual attorney's fees incurred based upon the
attorney's normal hourly rate and the number of hours worked, and not the
statutory attorney's fees defined in O.C.G.A. Section 13-1-11.
PAGE -2-
Exhibit 10.12.5
IN WITNESS WHEREOF, the undersigned Guarantors have executed this Guaranty
effective the 30 day of May, 2003.
GUARANTOR:
0000 Xxxxxxx Xxxx, Xxxxx 000 XXXXXXX REALTY INVESTORS, INC., a Georgia
corporation
Xxxxxxx, Xxxxxxx 00000 By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------- ----------------------------------------
ADDRESS OF GUARANTOR Name: Xxxxxxx X. Xxxxxxx
Title: Chief Operating Officer and Secretary
[CORPORATE SEAL]
00-0000000
----------
Guarantor's Taxpayer ID No.
Signed, sealed and delivered in the presence of:
/s/ Xxxxxx X. XxXxxx
-----------------------------------
Witness
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Notary Public
My commission expires:
[Notary Seal]
PAGE -3-
