DEVELOPMENT AGREEMENT
AGREEMENT made as of November __, 1998 by and between
XXXXXXX XXXX, L.P., a Mississippi limited partnership (the
"Partnership") and PARK RIDGE, LLC, a Mississippi limited
liability company (the "Developer") in its capacity as the
Developer of the Apartment Complex and not as a General
Partner of the Partnership.
Recitals
1. The Partnership was formed to acquire, construct,
develop, improve, maintain, own, operate, lease, dispose of
and otherwise deal with an apartment project located in
Jackson, Tennessee, known as the Park Ridge Apartments (the
"Apartment Complex").
2. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the First
Amended and Restated Agreement of Limited Partnership of the
Partnership of even date herewith (the "Partnership
Agreement").
3. The Apartment Complex, following the completion of
construction, is expected to constitute a "qualified low-
income housing project" (as defined in Section 42(g)(1) of
the Code).
4. The Developer has already provided and will
continue to provide certain services with respect to the
Apartment Complex during the acquisition, development,
construction and initial operating phases thereof.
5. In consideration for such services, past and
future, the Partnership has agreed to pay to the Developer
certain fees computed and paid in the manner stated herein.
NOW, THEREFORE, in consideration of the mutual
covenants and conditions set forth herein and other good and
valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
Section 1. Defined Terms.
"Development Advances" has the meaning set forth in
Section 2.
"Development Costs" means any and all costs and
expenses necessary to (i) cause the construction of the
Apartment Complex to be completed, in a good and workmanlike
manner, free and clear of all mechanics', materialmen's or
similar liens, in accordance with the Plans and
Specifications, (ii) equip the Apartment Complex with all
necessary and appropriate fixtures, equipment and articles
of personal property (including, without limitation,
refrigerators and ranges), (iii) obtain all required
certificates of occupancy for the apartment units and other
space in the Apartment Complex, (iv) pay the Development
Fee, (v) finance the construction of the Apartment Complex
and achieve the Completion Date in accordance with the
provisions of the Project Documents, (vi) discharge all
Partnership liabilities and obligations arising out of any
casualty generating insurance proceeds for the Partnership,
(vii) fund any Partnership reserves required hereunder or
under any of the Project Documents, and (viii) pay any other
costs or expenses necessary to achieve the Completion Date
and Rental Achievement.
"Specified Proceeds" means (i) the proceeds of all
Mortgage Loans, (ii) the net rental income, if any,
generated by the Apartment Complex prior to the Completion
Date which is permitted by the Lenders to be applied to the
payment of Development Costs, (iii) the Capital
Contributions of the Investment Limited Partner and the
Special Limited Partner, (iv) the Capital Contributions of
the General Partner in the amounts set forth in Schedule A
of the Partnership Agreement as of the Admission Date and
(v) any insurance proceeds arising out of casualties
occurring prior to the Completion Date.
Section 2. "Obligation to Complete Construction"
The Developer shall supervise the completion of the
construction of the Apartment Complex or cause the same to
be completed in a good and workmanlike manner, free and
clear of all mechanics', materialmen's or similar liens and
shall equip the Apartment Complex or cause the same to be
equipped with all necessary and appropriate fixtures,
equipment and articles of personal property, including
without limitation, refrigerators and ranges, provided for
in the Project Documents and the Plans and Specifications.
Section 3. "Development Services."
(a) The Developer has heretofore performed certain
services relating to the development of the Apartment
Complex and shall continue to oversee the construction and
development of the Apartment Complex, and shall perform the
services and carry out the responsibilities with respect to
the Apartment Complex as are set forth herein, and such
additional duties and responsibilities as are reasonably
within the general scope of such services and
responsibilities and are designated from time to time by the
General Partner.
(b) The Developer's services shall be performed in the
name and on behalf of the Partnership and shall consist of
the duties set forth in subparagraphs (i)-(xv) below of this
Section 3(b) and as provided elsewhere in this Agreement;
provided, however, that if the performance of any duty of
the Developer set forth in this Agreement is beyond the
reasonable control of the Developer, the Developer shall
nonetheless be obligated to (i) use its best efforts to
perform such duty and (ii) promptly notify the General
Partner that the performance of such duty is beyond its
reasonable control. The Developer has performed or shall
perform the following:
(i) Upon the request of the Partnership, negotiate and
cause to be executed in the name and on behalf of the
Partnership any agreements for architectural, engineering,
testing or consulting services for the Apartment Complex,
and any agreements for the construction of any improvements
or tenant improvements to be constructed or installed by the
Partnership or the furnishing of any supplies, materials,
machinery or equipment therefor, or any amendments thereof,
provided that no agreement shall be executed nor binding
commitment made until the terms and conditions thereof and
the party with whom the agreement is to be made have been
approved by the General Partner unless the terms,
conditions, and parties comply with guidelines issued by the
General Partner concerning such agreements;
(ii) Advise the Partnership as to the steps necessary
to qualify the Apartment Complex during the compliance
period defined in Section 42(i)(1) of the Code as a
"qualified low-income housing project" under Section
42(g)(1) of the Code;
(iii) Assist the Partnership in preparing and
processing an application for a low-income housing tax
credit allocation for the Apartment Complex under Section 42
of the Code;
(iv) Advise the Partnership as to federal, state and
local subsidy programs available for the Apartment Complex;
(v) Upon the request of the Partnership, oversee and
cooperate in the reestablishment and implementation of
appropriate administrative and financial controls for the
design and construction of the Apartment Complex, including
but not limited to:
(A) coordination and administration of the Apartment
Complex architect, the general contractor, and other
contractors, professionals and consultants employed in
connection with the design or construction of the Apartment
Complex;
(B) administration of any construction contracts on
behalf of the Partnership;
(C) participation in conferences and the rendering of
such advice and assistance as will aid in developing
economical, efficient and desirable design and construction
procedures;
(D) the rendering of advice and recommendations as to
the selection of subcontractors and suppliers;
(E) the review and submission to the General Partner
for approval of all requests for payments under any
architectural agreement, general contractor's agreement, or
any loan agreements with any lending institutions providing
funds for the benefit of the Partnership for the design or
construction of any improvements;
(F) the submission of any suggestions or requests for
changes which could in any reasonable manner improve the
design, efficiency or cost of the Apartment Complex;
(G) applying for the maintaining in full force and
effect any and all governmental permits and approvals
required for the lawful construction of the Apartment
Complex;
(H) compliance with all terms and conditions
applicable to the Partnership or the Apartment Complex
contained in any governmental permit or approval required or
obtained for the lawful construction of the Apartment
Complex, or in any insurance policy affecting or covering
the Apartment Complex, or in any surety bond obtained in
connection with the Apartment Complex;
(I) furnishing such consultation and advice relating
to the Apartment Complex as may be reasonably requested from
time to time by the General Partner;
(J) keeping the General Partner fully informed on a
regular basis of the progress of the design and construction
of the Apartment Complex, including the preparation of such
reports as are provided for herein or as may reasonably be
requested by the General Partner and which are of a nature
generally requested or expected of construction managers or
similar owner's representatives on similar projects;
(K) giving or making the Partnership's instructions,
requirements, approvals and payments provided for in the
agreements with the Apartment Complex architect, general
contractor, and other contractors, professionals and
consultants retained for the Apartment Complex; and
(L) at the Partnership's expense, filing on behalf of
and as the attorney-in-fact for the Partnership any notices
of completion required or permitted to be filed upon the
completion of any improvement(s) and taking such actions as
may be required to obtain any certificates of occupancy or
equivalent documents required to permit the occupancy of the
Apartment Complex.
(vi) Upon request of the Partnership, inspect the
progress of the course of the construction of the Apartment
Complex, including verification of the materials and labor
being furnished to and on such construction so as to be
fully competent to approve or disapprove requests for
payment made by the Apartment Complex architect and the
general contractor, or by any other parties with respect to
the design or construction of the Apartment Complex, and in
addition to verify that the construction is being carried
out substantially in accordance with the Plans and
Specifications approved by the General Partner or, in the
event that the construction is not being so carried out, to
promptly notify the General Partner;
(vii) To the extent requested to do so by the General
Partner, prepare and distribute to the General Partner a
critical path schedule, and periodic updates thereto as
necessary to reflect any material changes, but in any event
not less frequently than quarterly, other design or
construction cost estimates as required by the General
Partner, and financial accounting reports, including monthly
progress reports on the quality, progress and cost of the
construction and recommendations as to the drawing of funds
from any loans arranged by the Partnership to cover the cost
of design and construction of the Apartment Complex, or as
to the providing of additional capital contributions should
such loan funds for any reason be unavailable or inadequate;
(viii) Upon request of the Partnership, at the
Partnership's expense, obtain and maintain insurance
coverage for the Apartment Complex, the Partnership, and the
Developer and its employees, at all times until final
completion of the construction of the Apartment Complex, in
accordance with an insurance schedule approved by the
General Partner, which insurance shall include general
public liability insurance covering claims for personal
injury, including but not limited to bodily injury, or
property damage, occurring in or upon the Property or the
streets, passageways, curbs and vaults adjoining the
Property. Such insurance shall be in a liability amount
approved by the General Partner;
(ix) Comply with all applicable present and future
laws, ordinances, orders, rules, regulations and
requirements (hereinafter in this subparagraph (x) called
"laws") of all federal, state and municipal governments,
courts, departments, commissions, boards and offices, any
national or local Board of Fire Underwriters or Insurance
Services Offices having jurisdiction in the county in which
the Apartment Complex is located or any other body
exercising functions similar to those of any of the
foregoing, or any insurance carriers providing any insurance
coverage for the Partnership or the Apartment Complex, which
may be applicable to the Apartment Complex or any part
thereof. Any such compliance undertaken by the Developer on
behalf of and in the name of the Partnership, in accordance
with the provisions of this Agreement, shall be at the
Partnership's expense. The Developer shall likewise ensure
that all agreements between the Partnership and independent
contractors performing work in connection with the Apartment
Complex shall include the agreement of said independent
contractors to comply with all such applicable laws;
(x) Assemble and retain all contracts, agreements and
other records and data as may be necessary to carry out the
Developer's functions hereunder. Without limiting the
foregoing, upon the request of the Partnership, the
Developer will prepare, accumulate and furnish to the
General Partner and the appropriate governmental
authorities, as necessary, data and information sufficient
to identify the market value of improvements in place as of
each real property tax lien date, and will make application
for appropriate exclusions from the capital costs of the
Apartment Complex for purposes of real property ad valorem
taxes;
(xi) Upon the request of the Partnership, coordinate
and administer the design and construction of all interior
tenant improvements to the extent required under any leases
or other occupancy agreements to be constructed or furnished
by the Partnership with respect to the initial leasing of
space in the Apartment Complex, whether involving building
standard or non-building standard work;
(xii) Use its best efforts to accomplish the timely
completion of the Apartment Complex in accordance with the
approved Plans and Specifications and the time schedules for
such completion approved by the General Partner;
(xiii) At the direction of the General Partner,
implement any decisions of the General Partner made in
connection with the design, construction and development of
the Apartment Complex or any policies and procedures
relating thereto, exclusive of leasing activities; and
(xiv) Perform and administer any and all other
services and responsibilities of the Developer which are set
forth in any other provisions of this Agreement, or which
are requested to be performed by the General Partner and are
within the general scope of the services described herein.
Section 4. Limitations and Restrictions.
Notwithstanding any provisions of this Agreement, the
Developer shall not take any action, expend any sum, make
any decision, give any consent, approval or authorization,
or incur any obligation with respect to any of the following
matters unless and until the same has been approved by the
General Partner:
(a) Approval of all construction and architectural
contracts and all architectural plans, specifications and
drawings prior to the construction and/or alteration of any
improvements contemplated thereby, except for such matters
as may be expressly delegated in writing to the Developer by
the General Partner;
(b) Any proposed change in the work of the
construction of the Apartment Complex, or in the Plans and
Specifications therefor as previously approved by the
General Partner, or in the cost thereof, or any other change
which would affect the design, cost, value or quality of the
Apartment Complex, except for such matters as may be
expressly delegated in writing to the Developer by the
General Partner;
(c) Making any expenditure or incurring any obligation
by or on behalf of the Partnership or the Apartment Complex
involving a sum in excess of $25,000 or involving a sum of
more than $5,000 where the same relates to a component part
of any work, the combined cost of which exceeds $25,000,
except for expenditures made and obligations incurred
pursuant to and specifically set forth in a construction
budget approved by the General Partner (the "Construction
Budget") or for such matters as may be otherwise expressly
delegated to the Developer by the General Partner;
(d) Making any expenditure or incurring any obligation
which, when added to any other expenditure, exceeds the
Construction Budget or any line item specified in the
Construction Budget, except for such matters as may be
otherwise expressly delegated in writing to the Developer by
the General Partner; or
(e) Expending more than what the Developer in good
faith believes to be the fair and reasonable market value at
the time and place of contracting for any goods purchased or
leased or services engaged on behalf of the Partnership or
otherwise in connection with the Apartment Complex.
Section 5. Accounts and Records.
(a) The Developer on behalf of the Partnership, shall
keep such books of account and other records as may be
required and approved by the General Partner, including, but
not limited to, records relating to the costs of
construction and construction advances. The Developer shall
keep vouchers, statements, receipted bills and invoices and
all other records, in the form approved by the General
Partner, covering all collections, if any, disbursements and
other data in connection with the Apartment Complex prior to
the Completion Date. All accounts and records relating to
the Apartment Complex, including all correspondence, shall
be surrendered to the Partnership, upon demand without
charge therefor.
(b) The Developer shall cooperate with the Management
Agent to facilitate the timely preparation by the Management
Agent of such reports and financial statements as the
Management Agent is required to furnish pursuant to the
Management Agreement.
(c) All books and records prepared or maintained by
the Developer shall be kept and maintained at all times at
the place or places approved by the General Partner, and
shall be available for and subject to audit, inspection and
copying by the Management Agent, the General Partner or any
representative or auditor thereof or supervisory or
regulatory authority, at the times and in the manner set
forth in the Partnership Agreement.
Section 6. Development Fees.
For its services in connection with the development of
the Apartment Complex and the supervision of the
construction of the Apartment Complex, and as reimbursement
for Development Advances, the Developer shall receive a fee
(the "Development Fee") in the amount of $756,321. The
Development Fee shall be deemed to have been earned as and
when the Developer's services are rendered and subject to
the terms of the Bond Loan Documents, such Development Fee
shall be paid out of Specified Proceeds. If Specified
Proceeds are insufficient to pay the Development Fee subject
to the terms of the Bond Loan Documents, such unpaid amounts
shall be paid out of Cash Flow as set forth in Section
10.2(a) of the Partnership Agreement. In any event, the
General Partner shall cause the Partnership to pay such
Development Fee only after the payment of all Development
Costs (other than the Development Fee). If the Development
Fee has not been fully paid by the tenth anniversary of the
Completion Date, the General Partner shall make a Capital
Contribution to the Partnership in an amount sufficient to
enable the Partnership to pay any unpaid portion of the
Development Fee.
Section 7. Applicable Law.
This Agreement, and the application or interpretation
hereof, shall be governed by and construed in accordance
with the laws of the State of Mississippi.
Section 8. Binding Agreement.
This Agreement shall be binding on the parties hereto,
their heirs, executors, personal representatives, successors
and assigns. As long as the Developer is not in default
under this Agreement, the obligation of the Partnership to
pay the Development Fee shall not be affected by any change
in the identity of the General Partner of the Partnership.
Section 9. Headings.
All section headings in this Agreement are for
convenience of reference only and are not intended to
qualify the meaning of any section.
Section 10. Terminology.
All personal pronouns used in this Agreement, whether
used in the masculine, feminine or neuter gender, shall
include all other genders, the singular shall include the
plural, and vice versa as the context may require.
Section 11. Benefit of Agreement.
The obligations and undertakings of the Developer set
forth in this Agreement are made for the benefit of the
Partnership and its Partners and shall not inure to the
benefit of any creditor of the Partnership other than a
Partner, notwithstanding any pledge or assignment by the
Partnership of this Agreement or any rights hereunder.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed as of the date first written
above.
PARTNERSHIP:
XXXXXXX XXXX, L.P., a Mississippi
limited partnership, by its general
partner, Park Ridge, LLC, a
Mississippi limited company
By: /s/X.X. Xxxxxx, xx.
X.X. Xxxxxx, Xx., Member/Manager
DEVELOPER:
ARK RIDGE, LLC, a Mississippi
limited liability company
By: /s/ X.X. Xxxxxx, Xx.
X.X. Xxxxxx, Xx.,
Member/Manager
GUARANTY AGREEMENT
This Guaranty Agreement (this "Guaranty") is made as of
November __, 1998, by X. X. Xxxxxx, Xx., an individual
residing in Mississippi (the "Guarantor") in favor of BOSTON
CAPITAL TAX CREDIT FUND IV L.P., a Delaware limited
partnership (the "Investment Limited Partner"), and its
successors and assigns.
RECITALS
WHEREAS, reference is hereby made to the First Amended
and Restated Agreement of Limited Partnership, dated as of
November __, 1998 (the "Partnership Agreement") of Xxxxxxx
Xxxx, L.P., a Mississippi limited partnership (the
"Partnership");
WHEREAS, capitalized terms used herein and not
otherwise defined shall have the meaning set forth in the
Partnership Agreement;
WHEREAS, the undersigned Guarantor is a member of Park
Ridge Apartments, LLC, a Mississippi limited liability
company (the "General Partner"), which is the General
Partner of the Partnership;
WHEREAS, Park Ridge Apartments, LLC, a Mississippi
limited liability company (the "Developer"), in its capacity
as Developer and not as a General Partner of the
Partnership, is the Developer of the Apartment Complex and
has entered into a Development Agreement with the
Partnership;
WHEREFORE, to induce the Investment Limited Partner to
acquire an interest in the Partnership, to enter into the
Partnership Agreement and to become the Investment Limited
Partner of the Partnership, the undersigned hereby
unconditionally guarantees to the Investment Limited Partner
the prompt and full payment and due and punctual performance
of the payment and obligations described below in this
Guaranty (collectively, the "Guaranteed Obligations"), this
Guaranty being upon the following terms and conditions:
1. The Guarantor hereby unconditionally and
irrevocably guarantees to the Investment Limited Partner the
punctual payment when due, and at all times thereafter, of
each and every obligation of the General Partner and the
Developer to make any payment or advance any funds under the
terms and conditions of the Partnership Agreement and the
Development Agreement, including without limitation, the
General Partner's obligation to make their Capital
Contributions as set forth in Sections 4.2 and 6.12(a) of
the Partnership Agreement, the General Partner's obligation
to make any payments required by the terms of Section 5.1 of
the Partnership Agreement, the General Partner's obligation
to repurchase the Interest of the Investment Limited Partner
and/or the Special Limited Partner pursuant to the terms of
Section 5.2 of the Partnership Agreement, the General
Partner's obligation to make payments and fund certain
reserves pursuant to Section 6.5 of the Partnership
Agreement, the General Partner's obligation to make certain
indemnity payments pursuant to the terms of Section 6.9 of
the Partnership Agreement, the General Partner's obligation
to advance Subordinated Loans and other funds pursuant to
the terms of Sections 6.5 and 6.10 of the Partnership
Agreement, the Developer's obligation to make payments
necessary to satisfy the terms and conditions of Section
6.11 of the Partnership Agreement and the General Partner's
obligation to make any other payments pursuant to the terms
and conditions of the Partnership Agreement
2. The Guarantor additionally hereby unconditionally
and irrevocably guarantees to the Investment Limited Partner
the due and punctual performance of all other obligations of
the General Partner and the Developer pursuant to the terms
of the Partnership Agreement and the Development Agreement,
including without limitation, the General Partner's duties
and obligations set forth in Section 6.5 and Section 6.6 of
the Partnership Agreement, the General Partner's and
Developer's obligation to cause the completion of the
construction of the Apartment Complex and the achievement of
Rental Achievement pursuant to the terms of the Development
Agreement and Section 6.11 of the Partnership Agreement and
all of the other obligations of the General Partner and the
Developer as set forth in the Partnership Agreement and the
Development Agreement.
3. If any of the obligations of the General Partner
or the Developer are not complied with, in any respect
whatsoever, and without the necessity of any notice from the
Investment Limited Partner to the Guarantor, the Guarantor
agrees to (i) assume all responsibility for the completion
of the construction of the Apartment Complex and, at the
Guarantor's own cost and expense, cause the construction of
the Apartment Complex to be fully completed and Rental
Achievement to be achieved in accordance with the Plans and
Specifications, the Partnership Agreement and the
Development Agreement, (ii) pay all bills in connection with
the construction of the Apartment Complex and the
achievement of Rental Achievement and (iii) indemnify and
hold harmless the Investment Limited Partner from any and
all Adverse Consequences that the Investment Limited Partner
may suffer by reason of any such non-compliance period.
4. This Guaranty is an absolute, irrevocable and
unconditional guaranty of payment and performance. The
Guarantor shall be liable for the payment and performance of
the Guaranteed Obligations, as set forth in this Guaranty,
as a primary obligor. This Guaranty shall be effective as a
waiver of, and the Guarantor hereby expressly waives, any
and all rights to which the Guarantor may otherwise have
been entitled under any suretyship laws in effect from time
to time.
5. Subject to any rights and remedies of the General
Partner set forth in the Partnership Agreement, in the event
of a default by the General Partner or the Developer in the
payment or performance of the Guaranteed Obligations, or any
part thereof, when such indebtedness or performance becomes
due, the Guarantor shall, on demand and without presentment,
protest, notice of protest, further notice of non-payment or
of dishonor or of default or non-performance, or any other
notice whatsoever, without any notice having been given to
the Guarantor previous to such demand of the acceptance by
the Investment Limited Partner of this Guaranty, and without
any notice having been given to the Guarantor previous to
such demand of the creating or incurring of such obligation
to pay or perform, all such notices being hereby waived by
the Guarantor, pay the amount due thereon to the appropriate
party or perform or observe the agreement, covenant, term or
condition of the Partnership Agreement or the Development
Agreement, as the case may be, and it shall not be necessary
for the Investment Limited Partner, in order to enforce such
payment or performance by the Guarantor, first to institute
suit or pursue or exhaust any rights or remedies against the
Partnership or others liable for such payments or
performance, or to enforce any rights against any security
that ever shall have been given to secure such payments or
performance, or to join the Partnership or any others liable
for the payment or performance of the Guaranteed Obligations
or any part thereof in any action to enforce this Guaranty,
or to resort to any other means of obtaining payment or
performance of the Guaranteed Obligations.
6. Any time that the Investment Limited Partner is
entitled to exercise its rights or remedies hereunder, it
may in its discretion elect to demand payment and/or
performance. If the Investment Limited Partner elects to
demand performance, it shall at all times thereafter have
the right to demand payment until all of the Guaranteed
Obligations have been paid and performed in full. If the
Investment Limited Partner elects to demand payment, it
shall at all times thereafter have the right to demand
performance until all of the Guaranteed Obligations have
been paid and performed in full.
7. The Guarantor hereby agrees that neither the
Investment Limited Partner's rights or remedies nor the
Guarantor's obligations under the terms of this Guaranty
shall be released, diminished, impaired, reduced or affected
by any one or more of the following events, actions, facts
or circumstances, and the liability of the Guarantor under
this Guaranty shall be absolute and unconditional
irrespective of:
(i) any limitation of liability or recourse in any
other Project Document or arising under any law;
(ii) any release, surrender, abandonment, exchange,
alteration, sale or other disposition, subordination,
deterioration, waste, filing to protect or preserve,
impairment, or loss of, or any failure to create or perfect
any lien or security interest with respect to, or any other
dealings with, any collateral or security at any time
existing or purported, believed or expected to exist in
connection with any or all of the Guaranteed Obligations;
(iii) the taking or accepting of any other security
or guaranty for, or right of recourse with respect to, any
or all of the Guaranteed Obligations;
(iv) whether express or by operation of law, any
partial release of the liability of the Guarantor hereunder,
or if one or more guaranties are now or hereafter obtained
by the Investment Limited Partner covering all or any part
of the Guaranteed Obligations, any complete or partial
release of any one or more of such guarantors under any such
other guaranty, for the payment or performance of any or all
of the Guaranteed Obligations;
(v) the death, insolvency, bankruptcy, disability,
dissolution, liquidation, termination, receivership,
reorganization, merger, consolidation, change of form,
structure or ownership, sale of all or substantially all of
the assets, or lack of corporate, partnership or other power
of the Guarantor, the General Partner, the Developer, the
Partnership or any other party at any time liable for the
payment or performance of any or all of the Guaranteed
Obligations;
(vi) either with or without notice to or consent of the
Guarantor; any renewal, extension, modification or
rearrangement of the terms of any or all of the Guaranteed
Obligations and/or any of the Project Documents, including
without limitation, material alterations of the terms of
payment (including changes in maturity date(s) and interest
rate(s)) or performance (including changes in the Plans and
Specifications and other terms or aspects of the
construction of the Apartment Complex) or any other terms
thereof, or any waiver, termination, or release of, or
consent to departure from, any of the Project Documents or
any other guaranty of any or all of the Guaranteed
Obligations, or any adjustment, indulgence, forbearance, or
compromise that may be granted from time to time by the
Investment Limited Partner to the Partnership, the General
Partner, the Developer, the Guarantor, and/or any other
party at any time liable for the payment or performance of
any or all of the Guaranteed Obligations;
(vii) except for willful misconduct or gross
negligence, any neglect, lack of diligence, delay, omission,
failure or refusal of the Investment Limited Partner to take
or prosecute (or in taking or prosecuting) any action for
the collection or enforcement of any of the Guaranteed
Obligations, or to foreclose or take or prosecute any action
to foreclose (or in foreclosing or taking or prosecuting any
action to foreclose) upon any security therefor, or to
exercise (or in exercising) any other right or power with
respect to any security therefor, or to take or prosecute
(or in taking or prosecuting) any action in connection with
any Project Document, or any failure to sell or otherwise
dispose of in a commercially reasonable manner any
collateral securing any or all of the Guaranteed Obligations
(excepting only, with respect to any such sale or other
disposition of collateral, any such requirement imposed at
the time in question by then-applicable law and not waivable
by the Guarantor, and the Guarantor agreeing, with respect
to any such sale or other disposition, that ten days' notice
shall constitute reasonable notification; and provided that,
except for any such non-waivable requirement applicable to
any sale or other disposition of any such collateral, no
provision of this Guaranty shall be construed to limit or
otherwise adversely affect the Investment Limited Partner's
absolute and discretionary rights (subject to the terms of
the Partnership Agreement), as set forth in this Guaranty,
to release and/or otherwise deal or fail to deal with any
such collateral without affecting or impairing the
Guarantor's liability hereunder);
(viii) any failure of the Investment Limited Partner
to notify the Guarantor of any creation, renewal, extension,
rearrangement, modification, supplement or assignment of the
Guaranteed Obligations or any part thereof, or of any
Project Document, or of any release of or change in any
security or of any other action taken or refrained from
being taken by the Investment Limited Partner against the
Partnership, the General Partner or the Developer or any
security or other recourse or of any new agreement between
the Investment Limited Partner and the Partnership, the
General Partner or the Developer, it being understood that
the Investment Limited Partner shall not be required to give
the Guarantor any notice of any kind under any circumstances
with respect to or in connection with the Guaranteed
Obligations, any and all rights to notice the Guarantor may
have otherwise had being hereby waived by the Guarantor
(excepting only any notice, if any, required at the time in
question by then-applicable law and not waivable by the
Guarantor);
(ix) if for any reason the Investment Limited Partner
is required to refund any payment by the General Partner or
the Developer to any other party liable for the payment or
performance of any or all of the Guaranteed Obligations or
pay the amount thereof to someone else;
(x) the existence of any claim, set-off or other right
that the Guarantor may at any time have against the General
Partner, the Developer, the Investment Limited Partner, or
any other Person, whether or not arising in connection with
this Guaranty, or any other Project Document (provided, that
nothing contained herein shall prevent the assertion of any
such claim by separate suit or compulsory counterclaim); or
(xi) the unenforceability of all or any part of the
Guaranteed Obligations against the General Partner or the
Developer, whether because the Guaranteed Obligations exceed
the amount permitted by law or violate any usury laws, or
because the act of creating the Guaranteed Obligations, or
any part thereof, is ultra xxxxx, or because the officers or
Persons creating same acted in excess of their authority, or
because of a lack of validity or enforceability of or defect
or deficiency in any of the Project Documents, or because
the General Partner or the Developer has any valid defense,
claim or offset with respect thereto (except as specifically
set forth in the Partnership Agreement), or because the
General Partner's or the Developer's obligation ceases to
exist by operation of law, or because of any other reason or
circumstance.
8. In the event any payment by the General Partner or
the Developer or any other party to the Investment Limited
Partner or any other appropriate party is held to constitute
a preference, a fraudulent transfer or other voidable
payment under any bankruptcy, insolvency or similar law, or
if for any other reason the Investment Limited Partner or
any other appropriate party is required to refund such
payment or pay the amount thereof to any other party, such
payment by such General Partner or the Developer or any
other party to the Investment Limited Partner shall not
constitute a release to the Guarantor from any liability
hereunder, and this Guaranty shall continue to be effective
or shall be reinstated (notwithstanding any prior release or
discharge by the Investment Limited Partner of this Guaranty
or of the Guarantor), as the case may be, with respect to,
and this Guaranty shall apply to, any and all amounts so
refunded by the Investment Limited Partner or paid by the
Investment Limited Partner to another party (which amounts
shall constitute part of the Guaranteed Obligations), and
any interest paid by the Investment Limited Partner and any
attorneys' fees, costs and expenses paid or incurred by the
Investment Limited Partner in connection with any such
event. It is the intent of the Guarantor and the Investment
Limited Partner that the obligations and liabilities of the
Guarantor hereunder are absolute and unconditional under any
and all circumstances and that until the Guaranteed
Obligations are fully and finally paid and performed, and
are not subject to refund or disgorgement, the obligations
and liabilities of the Guarantor hereunder shall not be
discharged or released, in whole or in part, by any act or
occurrence that might, but for the provisions of this
Guaranty, be deemed a legal or equitable discharge or
release of a guarantor.
9. Notwithstanding anything to the contrary in this
Guaranty, the Guarantor does not waive any claims against
the Investment Limited Partner based on the failure of the
Investment Limited Partner to make any payments or Capital
Contributions as and when the same are due under the terms
of the Partnership Agreement or any other default by the
Investment Limited Partner under the terms of the
Partnership Agreement. This Guaranty is for the benefit of
the Investment Limited Partner and the Investment Limited
Partner's successors and assigns and in the event of an
assignment of the Guaranteed Obligations, or any part,
thereof, the rights and benefits hereunder, to the extent
applicable to the Guaranteed Obligations so assigned, may be
transferred with such Guaranteed Obligations. The Guarantor
waives notice of any transfer or assignment of the
Guaranteed Obligations, or any part thereof, and agrees that
neither the failure to give notice of such an assignment nor
the assignment itself will affect the liabilities of the
Guarantor hereunder.
10. This Guaranty is binding not only on the
Guarantor, but also on the Guarantor's heirs, personal
representatives, successors and assigns. Upon the death of
the Guarantor, this Guaranty shall continue against the
Guarantor's estate as to all of the Guaranteed Obligations,
including that portion incurred or arising after the death
of the Guarantor and shall be provable in full against the
Guarantor's estate, whether or not the Guaranteed
Obligations are then due and payable.
11. This Guaranty shall be governed by and construed
in accordance with the internal law of the State of
Mississippi. All obligations of the Guarantor hereunder are
payable and performable at the place or places where the
Guaranteed Obligations are payable and performable. This
Guaranty may not be modified, amended or terminated except
by a written agreement by and between the Investment Limited
Partner and the undersigned Guarantor.
12. If any provision of this Guaranty or the
application thereof to any Person or circumstance shall, for
any reason and to any extent, be judicially declared to be
invalid or unenforceable, neither the remaining provisions
of this Guaranty nor the application of such provision to
any other Person or circumstance shall be affected thereby,
and the remaining provisions of this Guaranty, or the
applicability of such provision to other Persons or
circumstances, as applicable, shall remain in effect and be
enforceable to the maximum extent permitted by applicable
law.
13. The Guarantor shall pay on demand all reasonable
attorneys' fees and other costs and expenses incurred by the
Investment Limited Partner in the enforcement of or
preservation of the Investment Limited Partner's rights
under this Guaranty. The Guarantor agrees to pay interest
on any expenses or other sums due to the Investment Limited
Partner under this Section 12 that are not paid when due, at
a rate equal to the Prime Rate plus three percent (3%). The
Guarantor's obligations and liabilities under this Section
12 shall survive any payment or discharge in full of the
Guaranteed Obligations. It is not the intention of the
Investment Limited Partner or the Guarantor to obligate the
Guarantor to pay interest in excess of that lawfully
permitted to be paid by the Guarantor under applicable law.
Should it be determined that any portion of the Guaranteed
Obligations or any other amount payable by the Guarantor
under this Guaranty constitutes interest in excess of the
maximum amount of interest that the Guarantor, in the
Guarantor's capacity as guarantor, may lawfully be required
to pay under applicable law, the obligation of the Guarantor
to pay such interest shall automatically be limited to the
payment thereof in the maximum amount so permitted under
applicable law. The provisions of this Section 12 shall
override and control all other provisions of this Guaranty
and of any other agreement between the Guarantor and the
Investment Limited Partner.
14. Any notice, request, demand, consent, approval or
other communication given hereunder, or (unless otherwise
provided therein) under any of the instruments or documents
referred to or contemplated hereby, or in connection
herewith shall be in writing and shall be deemed to have
been given if sent by (i) registered or certified mail,
return receipt requested, postage and fees prepaid, (ii) or
nationally recognized overnight delivery service, (iii)
telecopier or other facsimile transmission, answerback
requested, or (iv) delivered personally, in each case
addressed to the party hereto to receive such notice at her
or its respective address as follows:
(a) If to the undersigned Guarantor, 0000 Xxxxxxx
Xxxx, Xxxxx 000, Xxxxxxx, XX 00000, with a copy to Xxxx X.
Xxxx, Esq., Xxxxxx, Xxxxxxxxx & Xxxxx, P.A., 000 Xxxxxxxxx
Xxxxxx, Xxxxxxx, XX 00000; and
(b) if to the Investment Limited Partner, c/o Boston
Capital Partners, Inc., Xxx Xxxxxx Xxxxx, 00xx Xxxxx,
Xxxxxx, XX, 00000, Attention: Xxxxxx X. Xxxxx, with a copy
to M. Xxxxxx Xxxx, Esq., Xxxxxxxxx, Powers & Xxxxxxx, P.C.,
Xxx Xxxxxx Xxxxxx, Xxxxxx, XX, 00000.
15. The exercise by the Investment Limited Partner of
any right or remedy hereunder or under any other Project
Document or at law or in equity, shall not preclude the
concurrent or subsequent exercise of any other right or
remedy. The Investment Limited Partner shall have all
rights, remedies and recourses afforded to the Investment
Limited Partner by reason of this Guaranty or any Project
Document or by law or equity or otherwise, and the same (i)
shall be cumulative and concurrent, (ii) may be pursued
separately, successively or concurrently against the
Guarantor or others obligated for the Guaranteed
Obligations, or any thereof, or against any one or more of
them, or against any security or otherwise, at the sole
discretion of the Investment Limited Partner, (iii) may be
exercised as often as occasion therefor shall arise, it
being agreed by the Guarantor that the exercise of,
discontinuance of the exercise of or failure to exercise any
of such rights, remedies or recourses shall in no event be
construed as a waiver or release thereof or of any other
right, remedy or recourse and (iv) are intended to be, and
shall be, non-exclusive. No waiver of any default on the
part of the Guarantor or of any breach of any of the
provisions of this Guaranty or of any other document shall
be considered a waiver of any other or subsequent default or
breach, and no delay or omission in exercising or enforcing
the rights and powers granted herein or in any other
document shall be construed as a waiver of such rights and
powers, and no exercise or enforcement of any rights or
powers hereunder or under any other document shall be held
to exhaust such rights and powers, and every such right and
power may be exercised from time to time. The granting of
any consent, approval or waiver by the Investment Limited
Partner shall be limited to the specific instance and
purpose therefor and shall not constitute consent or
approval in any other instance or for any other purpose. No
notice to or demand on the Guarantor in any case shall of
itself entitle the Guarantor to any other or further notice
or demand in similar or other circumstances. No provision
of this Guaranty or any right, remedy or recourse of the
Investment Limited Partner with respect hereto, or any
default or breach, can be waived, nor can this Guaranty or
the Guarantor be released or discharged in any way or to any
extent, except specifically in each case by a writing
intended for that purpose (and which refers specifically to
this Guaranty) executed, and delivered to the Guarantor, by
the Investment Limited Partner.
16. The Guarantor at the Guarantor's expense will
promptly execute and deliver to the Investment Limited
Partner upon the Investment Limited Partner's request all
such other and further documents, agreements and instruments
necessary to accomplish and enforce the agreements of the
Guarantor under this Guaranty.
17. Time shall be of the essence in this Guaranty with
respect to all of the Guarantor's obligations hereunder.
18. This Guaranty embodies the entire agreement
between the Investment Limited Partner and the Guarantor
with respect to the guaranty by the Guarantor of the
Guaranteed Obligations. This Guaranty supersedes all prior
agreements and understandings, if any, with respect to the
guaranty by the Guarantor of the Guaranteed Obligations. No
condition or conditions precedent to the effectiveness of
this Guaranty exist. This Guaranty shall be effective upon
execution by the Guarantor and delivery to the Investment
Limited Partner.
IN WITNESS WHEREOF, the Guarantor duly executed this
Guaranty as of the date first written above.
GUARANTOR:
/s/ X.X. Xxxxxx, Xx.
X. X. Xxxxxx, Xx. Individually
