UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
EXHIBIT 10.4
THIS GUARANTY is made as of the 17th day of July, 2002, by XXXXXX PROPERTIES, INC., a Georgia
corporation (“Guarantor”), in favor of THE OHIO NATIONAL LIFE INSURANCE COMPANY, an Ohio
corporation (“Lender”).
ARTICLE I — BACKGROUND AND AGREEMENT
1.01 Background. Lender has agreed to make a loan (the “Loan”) in the principal
amount of $4,900,000.00 to 1945 The Exchange, LLC, a Georgia limited liability company
(“Borrower”), as evidenced by that certain real estate note (the “Note”) in the aforesaid principal
amount, made by Borrower in favor of Lender, dated as of even date; the Loan will be of direct
interest and advantage to Guarantor; and a condition to the making of the Loan is the delivery of
this Guaranty to Lender.
1.02 Statement of Agreement. For and in consideration of the sum of $10.00 and other
valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Guarantor,
and for the purpose of seeking to induce Lender to extend credit to Borrower, Guarantor does hereby
make the following guarantees to and agreements with Lender.
ARTICLE II — GUARANTEES AND INDEMNIFICATIONS
2.01 Guaranty of Payment. Guarantor does hereby unconditionally guarantee to Lender
the full and prompt payment of any amounts or sums due under the exceptions (terms (a) through (l)
to the non-recourse or limitations of liability provisions set forth in the last paragraph
beginning on the bottom of page 3 of the Note and continuing on pages 4, 5 and 6 of the Note
through the paragraph beginning “The obligations of Maker ...” and in Paragraph 3.06 (“Non
Recourse”) of the Deed to Secure Debt and Security Agreement (the “Deed to Secure Debt”,
collectively, with the Note, the “Loan Documents”). Guarantor also does hereby unconditionally
guarantee to Lender, that in the event the Lease (the “Lease”) from Borrower to jOjA Partners, LLC
of Suite 1445, 1945 The Exchange, Xxxxxxx, Xxxxxxx 00000 is terminated by jOjA Partners, LLC
pursuant to the Asset Management Agreement between jOjA Partners, LLC and Guarantor, Guarantor will
pay to Borrower any amounts or sums which would have been owing to Borrower through December 31,
2003 pursuant to the Lease had the Lease not been so terminated.
2.02 Guaranty of Performance. Guarantor does hereby unconditionally guarantee to
Lender the full and prompt payment and performance of any and all obligations and indemnifications
whatsoever of and by Borrower to Lender under the terms of the Environmental Indemnification
Agreement of even date from Borrower in favor of Lender, whether such obligations now exist or
arise hereafter.
2.03 Guaranteed Obligations. Guarantor does hereby agree that if such sums described
in Sections 2.01 and 2.02 which are now or may hereafter become due from Borrower to Lender
under the Loan Documents are not paid by Borrower in accordance with their terms for any
reason whatsoever, Guarantor will immediately make such payments. Guarantor further agrees to pay
Lender all expenses (including, without limitation, reasonable attorneys’ fees as defined in
Paragraph 3.07 of the Deed to Secure Debt) paid or incurred by Lender in endeavoring to enforce
this Guaranty.
2.04 ADA and FHA Indemnity. Guarantor shall and hereby does unconditionally indemnify
and hold Lender harmless from and against any and all obligations, liabilities, losses, damages,
fees and expenses Lender may incur resulting from, as well as to rectify, any noncompliance with
The Americans with Disabilities Act, The Fair Housing Act of 1988 or other assessability act with
respect to the Premises or the Secured Property Improvements (as those terms are defined in the
Deed to Secure Debt).
2.05 Exceptions to Non Recourse Indemnity, et. al. Guarantor, together with Borrower,
shall become personally liable, jointly and severally, for the entire amount of the Loan (including
all principal, interest, and other charges under the Note) in the event that Borrower (1) violates
the covenant governing the placing of subordinate financing on the Premises or the Secured Property
Improvements (as those terms are defined in the Deed to Secure Debt) or (2) violates the covenant
restricting transfers of interests in the Premises or the Secured Property Improvements or
transfers of ownership interests in Borrower, all as prohibited by the Deed to Secure Debt. The
obligations of Guarantor with respect to subparagraphs (a) through (k) in Paragraph 3.06 of the
Deed to Secure Debt, and with respect to the indemnities contained in Section 2.04 above, shall
survive the repayment and satisfaction of the Note.
2.06 Loan Documents. The provisions of this Guaranty shall extend and be applicable
to all renewals, replacements, amendments, extensions, consolidations and modifications of the Loan
Documents, and any and all references herein to the Loan Documents or any of them shall be deemed
to include any such renewals, replacements, amendments, extensions, consolidations or modifications
thereof.
ARTICLE III — AGREEMENTS AND WARRANTIES
3.01 Consents. Guarantor hereby consents and agrees that Lender may at any time, and
from time to time, without notice to or further consent from Guarantor, either with or without
consideration: release and surrender any property or other security of any kind or nature
whatsoever now or hereafter held by it or by any person or entity on its behalf or for its account,
securing any indebtedness or liability hereby guaranteed (the “Collateral”); substitute for any
Collateral held by or on behalf of Lender other collateral of like kind, or of any kind; make other
advances or increase the amount of the Loan; agree to modify the terms of any one or more of the
Loan Documents; extend or renew the Note for any period; grant releases, compromises and
indulgences with respect to any one or more of the Loan Documents and to any persons or entities
now or hereafter liable thereunder or hereunder; release any other guarantor or endorser of or
other person or entity liable upon the Note or any other of the Loan Documents; or take or fail to
take any action of any type whatsoever. No such action which Lender shall take or fail to take in
connection with the Loan Documents or any Collateral, nor any course of dealing with Borrower or
any other person, shall limit, impair or release Guarantor’s obligations hereunder,
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affect this Guaranty in any way or afford Guarantor any recourse against Lender. Nothing
contained in this section shall be construed to require Lender to take or refrain from taking any
action referred to herein.
3.02 Waiver and Subordination. Guarantor hereby expressly waives any right of
contribution from or indemnity against Borrower, whether at law or in equity, arising from any
payments made by Guarantor pursuant to the terms of this Guaranty, and Guarantor acknowledges that
Guarantor has no right whatsoever to proceed against Borrower for reimbursement of any such
payments. In connection with the foregoing, Guarantor expressly waives any and all rights of
subrogation to Lender against Borrower, and Guarantor hereby waives any rights to enforce any
remedy which Lender may have against Borrower and any rights to participate in any Collateral. In
addition to and without in any way limiting the foregoing, Guarantor hereby subordinates any and
all indebtedness of Borrower now or hereafter owed to Guarantor to all indebtedness of Borrower to
Lender, and agrees with Lender that Guarantor shall not demand or accept any payment of principal
or interest from Borrower, shall not claim any offset or other reduction of Guarantor’s obligations
hereunder because of any such indebtedness and shall not take any action to obtain any of the
Collateral.
3.03 Waiver of Defenses. Guarantor hereby waives and agrees not to assert or take
advantage of any defense based upon: (a) any incapacity, lack of authority, death or disability of
Guarantor or any other person or entity; (b) any failure of Lender to commence an action against
Borrower or any other person or entity (including, without limitation, other guarantors, if any),
or to file or enforce a claim against the estate (either in administration, bankruptcy, or any
other proceeding) of Borrower or any other person or entity, whether or not demand is made upon
Lender to file or enforce such claim; (c) any failure of Lender to give notice of the existence,
creation or incurring of any new or additional indebtedness or other obligation or of any action or
nonaction on the part of any other person or entity, in connection with the Loan Documents or any
obligation hereby guaranteed; (d) any failure on the part of Lender to ascertain the extent or
nature of the Collateral or any insurance or other rights with respect thereto, or the liability of
any party liable for the Loan Documents or the obligations evidenced or secured thereby, or any
failure on the part of Lender to disclose to Guarantor any facts it may now or hereafter know
regarding Borrower, the Collateral, or such other parties; (e) any lack of acceptance or notice of
acceptance of this Guaranty by Lender; (f) any lack of presentment, demand, protest, or notice of
demand, protest or nonpayment with respect to any indebtedness or obligations under any of the Loan
Documents; (g) any lack of notice of disposition or of manner of disposition of any Collateral; (h)
any lack of other notices to which Guarantor might otherwise be entitled; (i) failure to properly
record any document or any other lack of due diligence by Lender in creating or perfecting a
security interest in or collection, protection or realization upon any Collateral or in obtaining
reimbursement or performance from any person or entity now or hereafter liable for the Loan
Documents or any obligation secured thereby; (j) any invalidity, irregularity or unenforceability,
in whole or in part, of any one or more of the Loan Documents; (k) the inaccuracy of any
representation or other provision contained in any Loan Document; (l) any sale or assignment of the
Loan Documents, in whole or in part; (m) any sale or assignment by Borrower of the Collateral, or
any portion thereof, whether or not consented to by Lender; (n) any lack of commercial
reasonableness in dealing with Collateral; (o) any deficiencies in the Collateral or any deficiency
in the ability of Lender to collect or obtain
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performance from any
persons or entities now or hereafter liable for the payment or performance of any obligation
hereby guaranteed; (p) an assertion or claim that the automatic stay provided by 11 U.S.C. §362
(arising upon the voluntary or involuntary bankruptcy proceeding of Borrower), or any other stay
provided under any other debtor relief law (whether statutory, common law, case law or otherwise)
of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable,
shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of
Lender to enforce any of its rights, whether now or hereafter acquired, which Lender may have
against Guarantor or the Collateral; (q) any modifications of the Loan Documents or any obligation
of Borrower relating to the Loan by operation of law or by action of any court, whether pursuant to
the Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law (whether statutory,
common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or
otherwise; and (r) any action, occurrence, event or matter consented to by Guarantor under Section
3.01 hereof, under any other provision hereof, or otherwise.
3.04 Liability of Guarantor. This is a guaranty of payment and performance and not of
collection. The liability of Guarantor under this Guaranty shall be direct and immediate and not
conditional or contingent upon the pursuit of any remedies against Borrower or any other person
(including, without limitation, other guarantors, if any), nor against the Collateral. Guarantor
waives any right to require that an action be brought against Borrower or any other person or to
require that resort be had to any Collateral or to any balance of any deposit account or credit on
the books of Lender in favor of Borrower or any other person. In the event that, on account of the
Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law (whether statutory,
common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect,
which may be or become applicable, Borrower shall be relieved of or fail to incur any debt,
obligation or liability as provided in the Loan Documents, Guarantor shall nevertheless be fully
liable therefor. In the event of a default under the Loan Documents, Lender shall have the right
to enforce its rights, powers and remedies (including, without limitation, foreclosure of all or
any portion of the Collateral) thereunder or hereunder, in any order, and all rights, powers and
remedies available to Lender in such event shall be nonexclusive and cumulative of all other
rights, powers and remedies provided thereunder or hereunder or by law or in equity. If the
indebtedness guaranteed hereby is partially paid by reason of the election of Lender to pursue any
of the remedies available to Lender, or is otherwise partially paid, this Guaranty shall
nevertheless remain in full force and effect, and Guarantor shall remain liable for the entire
remaining unpaid balance of the indebtedness guaranteed hereby, even though any rights which
Guarantor may have against Borrower may be destroyed or diminished by the exercise of any such
remedy. Guarantor covenants and agrees that, upon the commencement of a voluntary or involuntary
bankruptcy proceeding by or against Borrower, Guarantor shall not seek or cause Borrower or any
other person or entity to seek a supplemental stay or other relief, whether injunctive or
otherwise, pursuant to 11 U.S.C. §105 or any other provision of the Bankruptcy Reform Act of 1978,
as amended, or any other debtor relief law (whether statutory, common law, case law or otherwise)
of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, to
stay, interdict, condition, reduce or inhibit the ability of Lender to enforce any rights of Lender
against Guarantor or the Collateral by virtue of this Guaranty or otherwise. The obligations of
Guarantor and the rights of Lender hereunder are in addition to the obligations of Guarantor and
the rights of Lender under any other guaranty or indemnity
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agreement given by Guarantor to Lender
in connection with the Loan, and payments made
hereunder shall not reduce the liabilities and obligations of Guarantor under any other such
guaranty or indemnity agreement.
3.05 Application of Payments. Guarantor hereby authorizes Lender, without notice to
Guarantor, to apply all payments and credits received from Borrower or from Guarantor or realized
from any security to the indebtedness, obligations and undertakings of Borrower (whether or not the
same are the subject of this Guaranty) in such manner and in such priority as Lender in its sole
judgment shall determine.
3.06 Financial Statements. Guarantor acknowledges that the Loan Documents require
that Borrower provide or cause to be provided to Lender certain financial statements of Guarantor.
Guarantor hereby agrees to provide to Lender all such financial statements in such form and at such
times as is required under the provisions of the Loan Documents.
3.07 Warranties. Guarantor warrants and represents (a) that the execution and
delivery of this Guaranty do not violate or constitute a breach of any agreement to which Guarantor
is a party or any applicable laws, and (b) that there is no litigation, claim, action or
proceeding, pending or threatened against Guarantor which would adversely affect the financial
condition of Guarantor or the ability of Guarantor to fulfill all obligations of Guarantor
hereunder, and (c) that all financial statements heretofore delivered by Guarantor to Lender are
true and correct in all respects as of the date thereof, and no material change has occurred in the
financial condition of Guarantor since the date thereof.
3.08 Condition of Borrower. Guarantor warrants and represents that Guarantor is fully
aware of the financial condition of Borrower and is executing and delivering this Guaranty based
solely upon Guarantor’s own independent investigation of all matters pertinent hereto, and that
Guarantor is not relying in any manner upon any representation or statement of Lender. Guarantor
warrants, represents and agrees that Guarantor is in a position to obtain, and Guarantor hereby
assumes full responsibility for obtaining, any additional information concerning the financial
condition of Borrower and any other matter pertinent hereto, and that Guarantor is not relying upon
Lender to furnish, and shall have no right to require Lender to obtain or disclose, any information
with respect to the indebtedness or obligations guaranteed hereby, the financial condition or
character of Borrower or the ability of Borrower to pay the indebtedness or perform the obligations
guaranteed hereby, the existence of any collateral or security for any or all of such indebtedness
or obligations, the existence or nonexistence of any other guaranties of all or any part of such
indebtedness or obligations, any actions or non-action on the part of Lender, Borrower or any other
person or entity, or any other matter, fact or occurrence whatsoever. By executing this Guaranty,
Guarantor acknowledges and knowingly accepts the full range of risks encompassed within a contract
of guaranty.
3.09 Minimum Net Worth. Guarantor warrants and represents that it has as of the date
hereof and shall maintain throughout the term of the Loan a minimum net worth of $2,000,000.00.
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ARTICLE IV — GENERAL CONDITIONS
4.01 Waiver of Rights. Guarantor hereby waives and renounces, to the fullest extent
permitted by law, all rights to the benefits of any statute of limitations and any moratorium,
reinstatement, marshalling, forbearance, valuation, stay, extension, redemption, appraisement,
exemption and homestead now or hereafter provided by the Constitution and laws of the United States
of America and of each state thereof, both as to itself and in and to all of its property, real and
personal, against the enforcement and collection of the obligations evidenced by this Guaranty.
4.02 Communications. Unless and except as otherwise specifically provided herein, any
and all notices, elections, approvals, consents, demands, requests and responses thereto
(“Communications”) permitted or required to be given under this Guaranty shall be in writing,
signed by or on behalf of the party giving the same, and shall be deemed to have been properly
given and shall be effective upon the earlier of receipt thereof or deposit thereof in the United
States mail, postage prepaid, certified with return receipt requested, to the other party at the
address of such other party set forth hereinbelow or at such other address within the continental
United States as such other party may designate by notice specifically designated as a notice of
change of address and given in accordance herewith; provided, however, that the time period in
which a response to any Communication must be given shall commence on the date of receipt thereof;
and provided further that no notice of change of address shall be effective with respect to
Communications sent prior to the time of receipt thereof. Receipt of Communications under this
Guaranty shall occur upon actual delivery (whether by mail, telecopy transmission, messenger,
courier service, or otherwise) to Guarantor or Lender, at the address of such party set forth
hereinbelow, subject to change as provided hereinabove. An attempted delivery in accordance with
the foregoing, acceptance of which is refused or rejected, shall be deemed to be and shall
constitute receipt; and an attempted delivery in accordance with the foregoing by mail, messenger,
or courier service (whichever is chosen by the sender) which is not completed because of changed
address of which no notice was received by the sender in accordance with this provision prior to
the sending of the Communication shall also be deemed to be and constitute receipt. Any
Communication, if given to Lender, must be addressed as follows, subject to change as provided
hereinabove:
The Ohio National Life Insurance Company
Xxx Xxxxxxxxx Xxx
Xxxxxxxxxx, Xxxx 00000
and, if given to Guarantor, must be addressed as follows, subject to change as provided
hereinabove:
Xxxxxx Properties, Inc.
0000 Xxx Xxxxxxxx X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: President
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4.03 Irrevocability and Revival. This Guaranty shall be irrevocable by Guarantor and
shall remain in effect until all indebtedness guaranteed hereby has been completely repaid, until
Lender has no further obligation to make future advances under any of the Loan Documents, and until
all obligations and undertakings of Borrower under, by reason of, or pursuant to the Loan Documents
have been completely performed, including obligations which survive repayment of the Loan or
realization upon the Collateral. This Guaranty shall continue to be effective or be revived and
reinstated, as the case may be, in the event that any payment received by Lender of any of the
indebtedness guaranteed hereby is returned or rescinded by reason of any present or future federal,
state or other law or regulation relating to bankruptcy, insolvency or other relief of debtors or
for any other reason.
4.04 Limit of Validity. If from any circumstances whatsoever fulfillment of any
provisions of this Guaranty, at the time performance of such provision shall be due, shall involve
transcending the limit of validity presently prescribed by any applicable usury statute or any
other applicable law, with regard to obligations of like character and amount, then ipso
facto the obligation to be fulfilled shall be reduced to the limit of such validity, so
that in no event shall any exaction be possible under this Guaranty that is in excess of the
current limit of such validity, but such obligation shall be fulfilled to the limit of such
validity. The provisions of this section shall control every other provision of this Guaranty.
4.05 Applicable Law. This Guaranty shall be interpreted, construed and enforced
according to the laws of the State of Georgia.
4.06 Miscellaneous. This Guaranty may not be changed orally, and no obligation of
Guarantor can be released or waived by Lender or any officer or agent of Lender, except by a
writing signed by a duly authorized officer of Lender. The provisions of this Guaranty shall be
binding upon Guarantor and the legal representatives, successors, and assigns of Guarantor and
shall inure to the benefit of Lender, and the legal representatives, successors, and assigns of
Lender. This Guaranty shall in no event be impaired by any change which may arise by reason of the
death of Borrower or Guarantor, if individuals, or by reason of the dissolution of Borrower or
Guarantor, if Borrower or Guarantor is a corporation or partnership. Guarantor has executed this
Guaranty individually and not as a partner of Borrower or any other guarantor. This Guaranty is
assignable by Lender, and any full or partial assignment hereof by Lender shall operate to vest in
the assignee all rights and powers herein conferred upon and granted to Lender and so assigned by
Lender. Guarantor expressly waives notice of transfer or assignment of this Guaranty and
acknowledges that the failure by Lender to give any such notice shall not affect the liabilities of
Guarantor hereunder. All personal pronouns used herein, whether used in the masculine, feminine or
neuter gender, shall include all other genders; and the singular shall include the plural and vice
versa. Titles of articles and sections are for convenience only and in no way define, limit,
amplify or describe the scope or intent of any provisions hereof. If Guarantor is a partnership,
all of the provisions hereof referring to Guarantor shall be construed to apply to each of the
general partners of Guarantor and of any and all further tiers of general partners in the structure
of Guarantor. This Guaranty contains the entire agreement between Guarantor and Lender relating to
the guarantying of the Loan by Guarantor and supersedes entirely any and all prior written or oral
agreements with respect thereto; and Guarantor and Lender acknowledge that there are no contemporaneous oral agreements with respect to the
subject matter hereof.
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty under seal as of the date first above
written.
| Signed, sealed and delivered in the presence of: | XXXXXX PROPERTIES, INC., a Georgia corporation | |||||
/s/ [illegible]
|
By: | /s/ Xxxxxxx X. Xxxxxxx | ||||
Unofficial Witness
|
Xxxxxxx X. Xxxxxxx, President | |||||
/s/ Xxxxxxxxx X. Xxxxx
|
(CORPORATE SEAL) | |||||
Notary Public |
||||||
[NOTARIAL SEAL] |
||||||
Commission Expiration Date: |
||||||
June 29, 2003 |
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