Exhibit 10.4.4
FHLMC Loan No.: 002701324
GUARANTY
MULTISTATE
(FOR USE IN ALL JURISDICTIONS EXCEPT CALIFORNIA)
REVISION DATE 3-17-03
This Guaranty ("GUARANTY") is entered into to be effective as of August
21, 2003, by the undersigned person(s) (the "GUARANTOR" jointly and severally if
more than one), for the benefit of X. X. XXXXXX & COMPANY, a Texas corporation
(the "LENDER").
RECITALS
X. XXXXXXX PROPERTIES RESIDENTIAL, L.P., a Georgia limited partnership,
(the "BORROWER") has requested that Lender make a loan to Borrower in the amount
of $10,750,000.00 (the "LOAN"). The Loan will be evidenced by a Multifamily Note
from Borrower to Lender dated effective as of the effective date of this
Guaranty (the "NOTE"). The Note will be secured by a Multifamily Mortgage, Deed
of Trust, or Deed to Secure Debt dated effective as of the effective date of the
Note (the "SECURITY INSTRUMENT"), encumbering the MORTGAGED PROPERTY described
in the Security Instrument.
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, Guarantor agrees as follows:
1. DEFINED TERMS. "INDEBTEDNESS," "LOAN DOCUMENTS" AND "PROPERTY
JURISDICTION" and other capitalized terms used but not defined in this Guaranty
shall have the meanings assigned to them in the Security Instrument.
2. SCOPE OF GUARANTY.
(a) Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to Lender:
(i) the full and prompt payment when due, whether at the
Maturity Date or earlier, by reason of acceleration or
otherwise, and at all times thereafter, of each of the
following:
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Exhibit 10.4.4
(A) a portion of the Indebtedness equal to zero percent
(-0-%) of the original principal balance of the Note
(the "BASE GUARANTY"); and
(B) in addition to the Base Guaranty, all other amounts
for which Borrower is personally liable under
Sections 9(c), 9(d) and 9(f) of the Note; and
(C) all costs and expenses, including reasonable
Attorneys' Fees and Costs incurred by Lender in
enforcing its rights under this Guaranty; and
(ii) the full and prompt payment and performance when due of all
of Borrower's obligations under Section 18 of the Security
Instrument.
(b) If the Base Guaranty stated in Section 2(a)(i)(A) is 100 percent of
the original principal balance of the Note, then (i) the Base Guaranty shall
mean and include the full and complete guaranty of payment of the entire
Indebtedness and the performance of all Borrower's obligations under the Loan
Documents; and (ii) for so long as the Base Guaranty remains in effect (there
being no limit to the duration of the Base Guaranty unless otherwise expressly
provided in this Guaranty), the obligations guaranteed pursuant to Sections
2(a)(i)(B), 2(a)(i)(C) and Section 3 shall be part of, and not in addition to or
in limitation of, the Base Guaranty.
If the Base Guaranty stated in Section 2(a)(i)(A) is less than 100
percent of the original principal balance of the Note, then this Section 2(b)
shall be completely inapplicable and shall be treated as if not a part of this
Guaranty.
(c) If Guarantor is not liable for the entire Indebtedness, then 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 and the other Loan Documents (except this Guaranty) shall be applied
first to the portion of the Indebtedness for which neither Borrower nor
Guarantor has personal liability.
3. ADDITIONAL GUARANTY RELATING TO BANKRUPTCY.
(a) Notwithstanding any limitation on liability provided for elsewhere
in this Guaranty, Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to Lender the full and prompt payment when due, whether at the
Maturity Date or earlier, by reason of acceleration or otherwise, and at all
times thereafter, the entire Indebtedness, in the event that:
(i) Borrower voluntarily files for bankruptcy protection under
the United States Bankruptcy Code; or
(ii) Borrower voluntarily becomes subject to any reorganization,
receivership, insolvency proceeding, or other similar
proceeding pursuant to any other federal or state law
affecting debtor and creditor rights; or
(iii) an order of relief is entered against Borrower pursuant to
the United States Bankruptcy Code or other federal or state
law affecting debtor and creditor
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Exhibit 10.4.4
rights in any involuntary bankruptcy proceeding initiated
or joined in by a "RELATED PARTY."
(b) For purposes of this Section, the term "Related Party" means:
(i) Borrower or Guarantor; and
(ii) any person or entity that holds, directly or indirectly,
any ownership interest in or right to manage Borrower or
Guarantor, including without limitation, any shareholder,
member or partner of Borrower or Guarantor; and
(iii) any person or entity in which any ownership interest
(direct or indirect) or right to manage is held by
Borrower, Guarantor or any partner, shareholder or member
of, or any other person or entity holding an interest in,
Borrower or Guarantor; and
(iv) any other creditor of Borrower that is related by blood,
marriage or adoption to Borrower, Guarantor or any partner,
shareholder or member of, or any other person or entity
holding an interest in, Borrower or Guarantor.
(c) If Borrower, Guarantor or any Related Party has solicited creditors
to initiate or participate in any proceeding referred to in this Section,
regardless of whether any of the creditors solicited actually initiates or
participates in the proceeding, then such proceeding shall be considered as
having been initiated by a Related Party.
4. GUARANTOR'S OBLIGATIONS SURVIVE FORECLOSURE. 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.
Notwithstanding the foregoing, if Lender has never been a
mortgagee-in-possession of or held title to the Mortgaged Property, Guarantor
shall have no obligation under this Guaranty relating to Borrower's obligations
under Section 18 of the Security Instrument after the date of the release of
record of the lien of the Security Instrument as a result of the payment in full
of the Indebtedness on the Maturity Date or by voluntary prepayment in full.
5. GUARANTY OF PAYMENT AND PERFORMANCE. Guarantor's obligations under this
Guaranty constitute an unconditional guaranty of payment and performance and not
merely a guaranty of collection.
6. NO DEMAND BY LENDER NECESSARY; WAIVERS BY GUARANTOR. The obligations of
Guarantor under this Guaranty shall be performed without demand by Lender and
shall be unconditional regardless 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, a guarantor, a
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Exhibit 10.4.4
borrower or a mortgagor. Guarantor hereby waives, to the fullest extent
permitted by applicable law:
(a) 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, a guarantor, a borrower or a
mortgagor;
(b) the benefits of any right of discharge under any and all statutes
or other laws relating to a guarantor, a surety, a borrower or a mortgagor, and
any other rights of a surety, a guarantor, a borrower or a mortgagor under such
statutes or laws;
(c) 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, 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;
(d) all rights to cause a marshalling of the Borrower's assets or to
require Lender to:
(i) proceed against Borrower or any other guarantor of
Borrower's payment or performance under the Loan Documents
(an "OTHER GUARANTOR");
(ii) proceed against any general partner of Borrower or any
Other Guarantor if Borrower or any Other Guarantor is a
partnership;
(iii) proceed against or exhaust any collateral held by Lender to
secure the repayment of the Indebtedness; or
(iv) pursue any other remedy it may now or hereafter have
against Borrower, or, if Borrower is a partnership, any
general partner of Borrower;
(e) any right to object to the timing, manner or conduct of Lender's
enforcement of its rights under any of the Loan Documents; and
(f) any right to revoke this Guaranty as to any future advances by
Lender under the terms of the Security Instrument to protect Lender's interest
in the Mortgaged Property.
7. MODIFICATION OF LOAN DOCUMENTS. At any time or from time to time and
any number of times, without notice to Guarantor and without affecting the
liability of Guarantor, Lender may:
(a) extend the time for payment of the principal of or interest on the
Indebtedness or renew the Indebtedness in whole or in part;
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Exhibit 10.4.4
(b) extend 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, or
waive such performance or compliance;
(c) accelerate the Maturity Date of the Indebtedness as provided in the
Note, the Security Instrument, or any other Loan Document;
(d) with Borrower, modify or amend the Note, the Security Instrument,
or any other Loan Document in any respect, including, but not limited to, an
increase in the principal amount; and/or
(e) modify, exchange, surrender or otherwise deal with any security for
the Indebtedness or accept additional security that is pledged or mortgaged for
the Indebtedness.
8. JOINT AND SEVERAL LIABILITY. The obligations of Guarantor (and each
party named as a Guarantor in this Guaranty) and any Other Guarantor 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 parties
named as a Guarantor in this Guaranty, and any Other Guarantor, jointly and
severally, or against any one or more of them;
(b) compromise or settle with Guarantor, any one or more of the parties
named as a Guarantor in this Guaranty, or any Other Guarantor, for such
consideration as Lender may deem proper;
(c) release one or more of the parties named as a Guarantor in this
Guaranty, 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.
9. SUBORDINATION OF BORROWER'S INDEBTEDNESS TO GUARANTOR. Any indebtedness
of Borrower held by Guarantor now or in the future is and shall be subordinated
to the Indebtedness and Guarantor shall collect, enforce and receive any such
indebtedness of Borrower as trustee for Lender, but without reducing or
affecting in any manner the liability of Guarantor under the other provisions of
this Guaranty.
10. WAIVER OF SUBROGATION. 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
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Exhibit 10.4.4
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.
11. PREFERENCE. 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.
12. FINANCIAL STATEMENTS. Guarantor, from time to time upon written request
by Lender, shall deliver to Lender such financial statements as Lender may
reasonably require.
13. ASSIGNMENT. 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 also include any lawful owner, holder or pledgee of the
Note. Reference in this Guaranty to "person" or "persons" shall be deemed to
include individuals and entities.
14. COMPLETE AND FINAL AGREEMENT. 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 Guarantor has received a copy 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 a 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 writing.
15. GOVERNING LAW. This Guaranty shall be governed by the law of the
Property Jurisdiction.
16. JURISDICTION; VENUE. Guarantor agrees that any controversy arising
under or in relation to this Guaranty may be litigated in the Property
Jurisdiction, and that the state and federal courts and authorities with
jurisdiction in the Property Jurisdiction shall have jurisdiction over all
controversies which shall arise under or in relation to this Guaranty. 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.
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Exhibit 10.4.4
However, nothing herein is intended to limit Lender's right to bring any suit,
action or proceeding relating to matters arising under this Guaranty against
Guarantor or any of Guarantor's assets in any court of any other jurisdiction.
17. GUARANTOR'S INTEREST IN BORROWER. Guarantor represents to Lender that
Guarantor has a direct or indirect ownership or other financial interest in
Borrower and/or will otherwise derive a material financial benefit from the
making of the Loan.
18. COMMUNITY PROPERTY AND STATE-SPECIFIC PROVISIONS:
IF THE PROPERTY JURISDICTION IS GEORGIA: Guarantor waives the benefit
of O.C.G.A. Section 10-7-24.
19. GUARANTOR AND LENDER 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 LENDER 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
[The remainder of this page is left blank intentionally.]
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Exhibit 10.4.4
IN WITNESS WHEREOF, Guarantor has signed and delivered this Guaranty
under seal or has caused this Guaranty to be signed and delivered under seal by
its duly authorized representative. Guarantor intends that this Guaranty shall
be deemed to be signed and delivered as a sealed instrument.
SIGNED, SEALED AND GUARANTOR:
DELIVERED IN THE
PRESENCE OF: XXXXXXX REALTY INVESTORS, INC.,
a Georgia corporation
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Unofficial Witness
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
/s/ Xxxxxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxx
------------------------------------ Secretary and Treasurer
Notary Public
My Commission Expires:
June 15, 2007
NAMES AND ADDRESS(ES) OF GUARANTOR(S):
NAME: XXXXXXX REALTY INVESTORS, INC.
ADDRESS: 0000 XXXXXXX XXXX, XXXXX 000
XXXXXXX, XXXXXXX 00000
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