GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "GUARANTY") is made as of December 27, 1996,
by APARTMENT INVESTMENT AND MANAGEMENT COMPANY, a Maryland corporation; AIMCO
PROPERTIES, L.P., a Delaware limited partnership; AIMCO-GP, INC., a Delaware
corporation; AIMCO-LP, INC., a Delaware corporation: AIMCO HOLDINGS, L.P.,
Delaware limited partnership; and AIMCO HOLDINGS QRS, INC., a Delaware
corporation; (singly or collectively, "GUARANTOR"), in favor of NATIONSBANK OF
TEXAS, N.A., a national banking association ("LENDER"), and its successors and
assigns.
RECITALS:
A. The following entities are affiliates of each Guarantor:
1. XXXXXXXXXXX PARTNERS, LTD., a Texas limited partnership
("Xxxxxxxxxxx")
2. FISHERMAN'S WHARF PARTNERS, A TEXAS LIMITED PARTNERSHIP, a Texas
limited partnership ("Fisherman's Wharf")
3. HAMPTON HILL PARTNERS, A TEXAS LIMITED PARTNERSHIP, a Texas
limited partnership ("Hampton")
4. HASTINGS PLACE PARTNERS, A TEXAS LIMITED PARTNERSHIP, a Texas
limited partnership ("Hastings")
5. OAK FALLS PARTNERS, A TEXAS LIMITED PARTNERSHIP, a Texas limited
partnership ("Oak Falls")
6. THE HOUSTON RECOVERY FUND, A TEXAS LIMITED PARTNERSHIP, a Texas
limited partnership ("HRF")
7. WEST TRAILS PARTNERS, LTD., a Texas limited partnership ("West
Trails")
8. SIGNATURE POINT JOINT VENTURE, a Texas joint venture
("Signature")
9. COVENTRY SQUARE PARTNERS, A TEXAS LIMITED PARTNERSHIP, a Texas
limited partnership ("Coventry")
10. CROWS NEST PARTNERS, LTD., a Texas limited partnership ("Crows
Nest")
11. SUNBURY PARTNERS, LTD., a Texas limited partnership ("Sunbury")
12. X.X. ENGLISH SWISS VILLAGE PARTNERS, LTD., A TEXAS LIMITED
PARTNERSHIP, a Texas limited partnership ("Village")
Each of the entities identified in items 1-12 hereinabove is sometimes
hereinafter individually referred to as a "BORROWER" and such entities are also
sometimes collectively referred to hereinafter as "BORROWERS".
B. Lender has agreed to make a loan to each of the Borrowers, all of
such loans being hereinafter collectively referred to as the "Loan." The
Borrowers have executed the following promissory notes (collectively, the
"Notes") evidencing the Loan:
1. Promissory note of even date herewith in the amount of
$4,336,000.00 executed by Xxxxxxxxxxx as maker in favor of Lender as payee
thereunder (as such promissory note may hereafter be renewed, extended,
supplemented, increased or modified and in effect from time to time, and
all other notes given in substitution therefor, or in modification,
renewal, or extension thereof, in whole or in part, is herein called the
"Xxxxxxxxxxx Note").
2. Promissory note of even date herewith in the amount of
$6,000,000.00, executed by Fisherman's Wharf as maker in favor of Lender as
payee thereunder (as such promissory note may hereafter be renewed,
extended, supplemented, increased or modified and in effect from time to
time, and all other notes given in substitution therefor, or in
modification, renewal, or extension thereof, in whole or in part, is herein
called the "Fisherman's Wharf Note").
3. Promissory note of even date herewith in the amount of
$3,952,000.00, executed by Hampton as maker in favor of Lender as payee
thereunder (as such promissory note may hereafter be renewed, extended,
supplemented, increased or modified and in effect from time to time, and
all other notes given in substitution
GUARANTY AGREEMENT - Page 1
therefor, or in modification, renewal, or extension thereof, in whole
or in part, is herein called he the "Hampton Note").
4. Promissory note of even date herewith in the amount of
$3,258,000.00, executed by Hastings as maker in favor of Lender as payee
thereunder (as such promissory note may hereafter be renewed, extended,
supplemented, increased or modified and in effect from time to time, and
all other notes given in substitution therefor, or in modification,
renewal, or extension thereof, in whole or in part, is herein called the
"Hastings Note").
5. Promissory note of even date herewith in the amount of
$3,285,000.00, executed by Oak Falls as maker in favor of Lender as
payee thereunder (as such promissory note may hereafter be renewed,
extended, supplemented, increased or modified and in effect from time
to time, and all other notes given in substitution therefor, or in
modification, renewal, or extension thereof, in whole or in part, is
herein called the "Oak Falls Note").
6. Promissory note of even date herewith in the amount of
$4,732,000.00, executed by HRF as maker in favor of Lender as payee
thereunder (as such promissory note may hereafter be renewed,
extended, supplemented, increased or modified and in effect from time
to time, and all other notes given in substitution therefor, or in
modification, renewal, or extension thereof, in whole or in part, is
herein called the "HRF/Easton Note").
7. Promissory note of even date herewith in the amount of
$750,000.00, executed by HRF as maker in favor of Lender as payee
thereunder (as such promissory note may hereafter be renewed,
extended, supplemented, increased or modified and in effect from time
to time, and all other notes given in substitution therefor, or in
modification, renewal, or extension thereof, in whole or in part, is
herein called the "HRF/Stony Note").
8. Promissory note of even date herewith in the amount of
$4,870,952.00, executed by West Trails as maker in favor of Lender as
payee thereunder (as such promissory note may hereafter be renewed,
extended, supplemented, increased or modified and in effect from time
to time, and all other notes given in substitution therefor, or in
modification, renewal, or extension thereof, in whole or in part, is
herein called the "West Trails Note").
9. Promissory note of even date herewith in the amount of
$11,040,000.00, executed by Signature as maker in favor of Lender as
payee thereunder (as such promissory note may hereafter be renewed,
extended, supplemented, increased or modified and in effect from time
to time, and all other notes given in substitution therefor, or in
modification, renewal, or extension thereof, in whole or in part, is
herein called the "Signature Note").
10. Promissory note of even date herewith in the amount of
$4,240,000.00, executed by Coventry as maker in favor of Lender as
payee thereunder (as such promissory note may hereafter be renewed,
extended, supplemented, increased or modified and in effect from time
to time, and all other notes given in substitution therefor, or in
modification, renewal, or extension thereof, in whole or in part, is
herein called the "Coventry Note").
11. Promissory note of even date herewith in the amount of
$4,160,000.00, executed by Crows Nest as maker in favor of Lender as
payee thereunder (as such promissory note may hereafter be renewed,
extended, supplemented, increased or modified and in effect from time
to time, and all other notes given in substitution therefor, or in
modification, renewal, or extension thereof, in whole or in part, is
herein called the "Crows Nest Note").
12. Promissory note of even date herewith in the amount of
$2,950,000.00, executed by Sunbury as maker in favor of Lender as
payee thereunder (as such
GUARANTY AGREEMENT - Page 2
promissory note may hereafter be renewed, extended, supplemented,
increased or modified and in effect from time to time, and all other
notes given in substitution therefor, or in modification, renewal, or
extension thereof, in whole or in part, is herein called the "Sunbury
Note").
13. Promissory note of even date herewith in the amount of
$6,880,000.00, executed by Village as maker in favor of Lender as
payee thereunder (as such promissory note may hereafter be renewed,
extended, supplemented, increased or modified and in effect from time
to time, and all other notes given in substitution therefor, or in
modification, renewal, or extension thereof, in whole or in part, is
herein called the "Village Note").
The total principal amount payable by Borrowers to Lender evidenced by the
Notes is $60,453,952.00.
C. The Borrowers have also executed the following deeds of trust
(collectively, the "Deeds of Trust") as security for the Notes:
1. Deed of Trust of even date herewith, granted by Xxxxxxxxxxx
to Xxxxxxx X. Xxxx as trustee for the benefit of Lender, with respect
to certain real property located in Xxxxxx County, Texas consisting of
the land more completely described on the applicable Exhibit "A"
attached hereto and incorporated herein by this reference and the
multifamily residences and related improvements sometimes known as the
Xxxxxxxxxxx Apartments I and II located on such land (the "Xxxxxxxxxxx
Deed of Trust").
2. Deed of Trust of even date herewith, granted by Fisherman's
Wharf to Xxxxxxx X. Xxxx as trustee for the benefit of Lender, with
respect to certain real property located in Brazoria County, Texas
consisting of the land more completely described on the applicable
Exhibit "A" attached hereto and incorporated herein by this reference
and the multifamily residences and related improvements sometimes
known as the Fisherman's Wharf Apartments located on such land (the
"Fisherman's Wharf Deed of Trust").
3. Deed of Trust of even date herewith, granted by Hampton to
Xxxxxxx X. Xxxx as trustee for the benefit of Lender, with respect to
certain real property located in Xxxxxx County, Texas consisting of the
land more completely described on the applicable Exhibit "A" attached
hereto and incorporated herein by this reference and the multifamily
residences and related improvements sometimes known as the Hampton Hill
Apartments located on such land (the "Hampton Deed of Trust").
4. Deed of Trust of even date herewith, granted by Hastings to
Xxxxxxx X. Xxxx as trustee for the benefit of Lender, with respect to
certain real property located in Xxxxxx County, Texas consisting of the
land more completely described on the applicable Exhibit "A" attached
hereto and incorporated herein by this reference and the multifamily
residences and related improvements sometimes known as the Hastings Place
Apartments located on such land (the "Hastings Deed of Trust").
5. Deed of Trust of even date herewith, granted by Oak Falls to
Xxxxxxx X. Xxxx as trustee for the benefit of Lender, with respect to
certain real property located in Xxxxxx County, Texas consisting of the
land more completely described on the applicable Exhibit "A" attached
hereto and incorporated herein by this reference and the multifamily
residences and related improvements sometimes known as the Oak Falls
Condominiums located on such land (the "Oak Falls Deed of Trust").
6. Deed of Trust of even date herewith, granted by HRF to Xxxxxxx
X. Xxxx as trustee for the benefit of Lender, with respect to certain real
property located in Xxxxxx County, Texas consisting of the land more
completely described on the applicable Exhibit "A" attached hereto and
incorporated herein by this reference and the multifamily residences and
related improvements sometimes known as Easton Village I and II located on
such land (the "HRF/Easton Deed of Trust").
GUARANTY AGREEMENT - Page 3
7. Deed of Trust of even date herewith, granted by HRF to Xxxxxxx X.
Xxxx as trustee for the benefit of Lender, with respect to certain real
property located in Xxxxxx County, Texas consisting of the land more
completely described on the applicable Exhibit "A" attached hereto and
incorporated herein by this reference and the multifamily residences and
related improvements sometimes known as the Stony Brook Apartments located
on such land (the "HRF Stony Deed of Trust").
8. Deed of Trust of even date herewith, granted by West Trails to
Xxxxxxx X. Xxxx as trustee for the benefit of Lender, with respect to
certain real property located in Xxxxxx County, Texas consisting of the
land more completely described on the applicable Exhibit "A" attached
hereto and incorporated herein by this reference and the multifamily
residences and related improvements sometimes known as The Waterford
Apartments located on such land (the "West Trails Deed of Trust").
9. Deed of Trust of even date herewith, granted by Signature to
Xxxxxxx X. Xxxx as trustee for the benefit of Lender, with respect to
certain real property located in Galveston County, Texas consisting of
the land more completely described on the applicable Exhibit "A"
attached hereto and incorporated herein by this reference and the
multifamily residences and related improvements sometimes known as the
Signature Point Apartments located on such land (the "Signature Deed
of Trust").
10. Deed of Trust of even date herewith, granted by Coventry to
Xxxxxxx X. Xxxx as trustee for the benefit of Lender, with respect to
certain real property located in Xxxxxx County, Texas consisting of
the land more completely described on the applicable Exhibit "A"
attached hereto and incorporated herein by this reference and the
multifamily residences and related improvements sometimes known as the
Coventry Square Apartments located on such land (the "Coventry Deed of
Trust").
11. Deed of Trust of even date herewith, granted by Crows Nest
to Xxxxxxx X. Xxxx as trustee for the benefit of Lender, with respect
to certain real property located in Galveston County, Texas consisting
of the land more completely described on the applicable Exhibit "A"
attached hereto and incorporated herein by this reference and the
multifamily residences and related improvements sometimes known as the
Crows Nest Apartments located on such land (the "Crows Nest Deed of
Trust").
12. Deed of Trust of even date herewith, granted by Sunbury to
Xxxxxxx X. Xxxx as trustee for the benefit of Lender, with respect to
certain real property located in Xxxxxx County, Texas consisting of
the land more completely described on the applicable Exhibit "A"
attached hereto and incorporated herein by this reference and the
multifamily residences and related improvements sometimes known as the
Sunbury Downs Apartments located on such land (the "Sunbury Deed of
Trust").
13. Deed of Trust of even date herewith, granted by Village to
Xxxxxxx X. Xxxx as trustee for the benefit of Lender, with respect to
certain real property located in Xxxxxx County, Texas consisting of
the land more completely described on the applicable Exhibit "A"
attached hereto and incorporated herein by this reference and the
multifamily residences and related improvements sometimes known as the
Swiss Village Apartments located on such land (the "Village Deed of
Trust").
Capitalized terms used herein and not otherwise defined shall have the meanings
given to them in the Deeds of Trust or the Security Agreement (hereinafter
defined), as applicable.
D. It is a condition precedent to Lender's obligation to make the Loan to
Borrower that Guarantor execute and deliver to Lender this Guaranty and that
certain Security Agreement of even date herewith executed by Guarantor for the
benefit of Lender. This Guaranty and the Security Agreement, and the Deeds of
Trust are sometimes hereinafter collectively referred to as the Loan Documents.
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and as a material inducement to Lender to extend credit to
Borrower, Guarantor hereby guarantees to Lender the prompt and full payment and
performance of the indebtedness
GUARANTY AGREEMENT - Page 4
and obligations described below in this Guaranty; this Guaranty being upon the
following terms and conditions:
AGREEMENT
1. GUARANTEED OBLIGATIONS. The payment and performance obligations set
forth below in this Section 1, and including any limitations thereon as set
forth in Section 1(c) are hereinafter collectively referred to as the
"Guaranteed Obligations"
(a) Guarantor hereby unconditionally and irrevocably guarantees to
Lender the punctual payment when due, whether by lapse of time, by
acceleration of maturity, or otherwise, and at all times thereafter, of all
principal, interest (including interest accruing after the commencement of
any bankruptcy or insolvency proceeding by or against Borrowers, whether or
not allowed in such proceeding), fees, costs, expenses, indemnification
indebtedness, and other sums of money now or hereafter due and owing
pursuant to (i) the terms of the Notes, the Deeds of Trust, and the other
Loan Documents, including the making of any deposits required or
contemplated to be made by Borrowers pursuant to the Deeds of Trust, the
provision of any additional collateral, and any indemnifications contained
in such Loan Documents, now or hereafter existing, and (ii) all renewals,
extensions, refinancings, modifications, supplements or amendments of such
indebtedness or any part thereof (the indebtedness described in CLAUSES (i)
AND (ii) above in this SECTION 1 is herein collectively called the
"INDEBTEDNESS") subject, however, to the limitations of SECTION 1(b)
hereof. This Guaranty covers the Indebtedness, whether presently
outstanding or arising subsequent to the date hereof, including all amounts
advanced by Lender in stages or installments. The guaranty of Guarantor as
set forth in this SECTION 1 is a continuing guaranty of payment and
performance, and not a guaranty of collection.
(b) Guarantor additionally hereby unconditionally and irrevocably
guarantees to Lender the timely performance of all other obligations of
Borrowers under the Notes, the Deeds of Trust, or under any other the Loan
Documents. If any of the Guaranteed Obligations are not complied with, in
any respect whatsoever, Guarantor agrees to indemnify and hold Lender
harmless from any and all loss, cost, liability or expense that Lender may
suffer by any reason of any such non-compliance. Lender shall accept
performance by Guarantor of Guaranteed Obligations, and so long as all of
the Guaranteed Obligations are being performed by Borrower or Guarantor and
no Default exists, Lender will make the Loan proceeds available under and
subject to the terms of the Notes and the Deeds of Trust.
(c) Guarantor acknowledges and agrees that the liability of Guarantor
with respect to the payment and performance obligations described in
Sections 1(a) and 1(b) hereinabove arising under the four deeds of trust
listed as items C.10.-C.13. hereinabove (collectively, the "Unlimited
Guaranty Deeds of Trust") is unlimited. Except as otherwise set forth in
SECTION 1(d) hereinbelow, the liability of Guarantor for the Guaranteed
Obligations arising under the nine deeds of trust listed as items C.1.
through C.9. hereinabove (collectively, the "Limited Guaranty Deeds of
Trust") shall not exceed payment of twenty-five percent (25%) of the
principal of the Notes secured by such Limited Guaranty Deeds of Trust,
together with (i) interest on the full amount of such Notes and (ii) any
other debt service required pursuant to such Notes; provided, however, in
the event that the term of the Loan is extended pursuant to the terms of
the Notes, and if, after such extension, any one or more of the Mortgaged
Properties secured by a Limited Guaranty Deed of Trust fails to comply with
the minimum Debt Coverage Ratio set forth in the Notes (each such property
being hereinafter referred to as "Noncomplying Mortgaged Property"), then
either (x) Guarantor shall cause the principal due under the Note for such
Noncomplying Mortgaged Property to be reduced so that the Noncomplying
Mortgaged Property is able to again comply with the Debt Coverage Ratio
requirement or (y) the Deed of Trust for such Noncomplying Mortgaged
Property shall automatically and without further action by Lender or any
Guarantor become an Unlimited Guaranty Deed of Trust, and Guarantor shall
be fully liable for all Guaranteed Obligations thereunder.
(d) The limitations on Guarantor liability set forth in SECTION
1(c) hereinabove shall not apply to any costs, losses, expenses or
fees, including but not limited to court costs or
GUARANTY AGREEMENT - Page 5
attorney's fees, incurred, suffered or occasioned by the Lender as a
consequence of any one or more of the following:
(i) Borrower's failure to pay taxes, assessments and other similar
charges which could result in liens against any portion of the
property covered by the Deed of Trust or the other Loan
Documents; provided, however, that the escrow of taxes and
assessments with Lender shall be deemed a payment for such taxes,
assessments and other similar charges to the extent actually
paid;
(ii) Borrower's failure to pay and discharge any mechanic's liens,
materialmen's liens or similar liens against any portion of the
property covered by the Deed of Trust or the other Loan
Documents; provided, however, that Borrower has the right to
contest any such liens and to either bond around same or have
same paid under the payment and performance bonds supplied in
connection with the construction contract;
(iii) Fraud, any material misrepresentation of any fact by Borrower at
the time when made or waste of any property covered by the Deed
of Trust or the other Loan Documents;
(iv) Retention by the Borrower of any rental income or other income
received with respect to any property covered by the Deed of
Trust or the other Loan Documents which, under the terms thereof,
should have been paid to the Lender;
(v) Misapplication by Borrower of insurance proceeds, condemnation
awards or other similar funds or payments attributable to any
property covered by the Deed of Trust or the other Loan Documents
received by Borrower or directed by Borrower to a third party
other than Lender which, under the terms thereof, should have
been paid to the Lender;
(vi) Failure to maintain, repair or restore any property covered by
the Deed of Trust or the other Loan Documents in good condition;
and
(vii) The failure to maintain casualty and other insurance, if
commercially available, required to be maintained by Borrower
under the Loan Documents or the removal of any property covered
by the Deed of Trust or the other Loan Documents which is not
consented to in writing by Lender, replaced by similar property
of similar quality or permitted by the terms of the Loan
Documents.
2. PRIMARY LIABILITY OF GUARANTOR.
(a) This Guaranty is an absolute, irrevocable and unconditional
guaranty of payment and performance. 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 Guarantor hereby expressly waives, any and all rights to
which Guarantor may otherwise have been entitled under any suretyship laws
in effect from time to time, including, without limitation, any rights
pursuant to RULE 31 of the Texas Rules of Civil Procedure, SECTION 17.001
of the Texas Civil Practice and Remedies Code, and CHAPTER 34 of the Texas
Business and Commerce Code.
(b) In the event of default by Borrower in payment or performance
of the Guaranteed Obligations, or any part thereof, when such
indebtedness or performance becomes due, either by its terms or as the
result of the exercise of any power to accelerate, Guarantor shall, on
demand and without presentment, protest, notice of protest, further
notice of nonpayment or of dishonor or of default or nonperformance,
or notice of acceleration or of intent to accelerate, or any other
notice whatsoever, without any notice having been given to Guarantor
previous to such demand of the acceptance by Lender of this Guaranty,
and without any notice having been given to Guarantor previous to such
demand of the creating or incurring of such indebtedness or of such
obligation to perform, all such notices being
GUARANTY AGREEMENT - Page 6
hereby waived by Guarantor, pay the amount due thereon to Lender or
perform or observe the agreement, covenant, term or condition, as the
case may be, and it shall not be necessary for Lender, in order to
enforce such payment or performance by Guarantor, first to institute
suit or pursue or exhaust any rights or remedies against Borrower or
others liable on such indebtedness or for such performance, or to
enforce any rights against any security that shall ever have been
given to secure such indebtedness or performance, or to join Borrower
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.
(c) Suit may be brought or demand may be made against all parties
who have signed this Guaranty or any other guaranty covering all or
any part of the Guaranteed Obligations, or against any one or more of
them, separately or together, without impairing the rights of Lender
against any party hereto. Any time that Lender is entitled to exercise
its rights or remedies hereunder, it may in its discretion elect to
demand payment and/or performance. If Lender 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 Lender 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.
3. CERTAIN AGREEMENTS AND WAIVERS BY GUARANTOR.
(a) Guarantor hereby agrees that neither Lender's rights or remedies
nor 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 Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:
(i) any limitation of liability or recourse in any other Loan
Document or arising under any Law;
(ii) 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;
(iii) any release, surrender, abandonment, exchange, alteration,
sale or other disposition, subordination, deterioration, waste,
failure 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;
(iv) whether express or by operation of Law, any partial release
of the liability of Guarantor hereunder, or if one or more other
guaranties are now or hereafter obtained by Lender 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, or
any complete or partial release of Borrower or any other party
liable, directly or indirectly, 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
assets, or lack of corporate, partnership or other power of any
Borrower, Guarantor 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
Guarantor: any renewal, extension, modification or rearrangement
of the terms of any or all of the Guaranteed Obligations and/or
any of the Loan 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
GUARANTY AGREEMENT - Page 7
Plans and other terms or aspects of construction of the
improvements) or any other terms thereof, or any waiver,
termination, or release of, or consent to departure from, any of
the Loan 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 Lender to Borrower, Guarantor, and/or any other party at any
time liable for the payment or performance of any or all of the
Guaranteed Obligations;
(vii) any neglect, lack of diligence, delay, omission, failure,
or refusal of Lender 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 Loan 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 which may not be waived by Guarantor, and
Guarantor agreeing, with respect to any such sale or other disposition
to which SECTION 9.504(c) of the Texas Business and Commerce Code or
other similar provision of applicable law, is determined to be
applicable, that ten (10) days notice shall constitute reasonable
notification; and provided that, except for any such requirement
applicable to any sale or other disposition of any such collateral
which may not be waived, no provision of this Guaranty shall be
construed to limit or otherwise adversely affect Lender's absolute and
discretionary rights, as set forth in this Guaranty, to release and/or
otherwise deal or fail to deal with any such collateral without
affecting or impairing Guarantor's liability hereunder);
(viii) any failure of Lender to notify Guarantor of any creation,
renewal, extension, rearrangement, modification, supplement, or
assignment of the Guaranteed Obligations or any part thereof, or of
any Loan Document, or of any release of or change in any security or
of any other action taken or refrained from being taken by Lender
against Borrower or any security or other recourse or of any new
agreement between Lender and Borrower, it being understood that Lender
shall not be required to give 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 Guarantor may have otherwise
had being hereby waived by Guarantor (excepting only any notice, if
any, required at the time in question by then-applicable law and not
waivable by Guarantor);
(ix) if for any reason Lender is required to refund any payment
by Borrower 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
Guarantor may at any time have against Borrower, Lender, or any other
Person (hereinafter defined), whether or not arising in connection
with this Guaranty, the Note, the Loan Agreement, or any other Loan
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 Borrower, whether because the
Guaranteed Obligations exceed the amount permitted by law or
violate any usury law, 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 Loan
Documents, or because Borrower has any valid defense, claim or
offset with respect thereto, or because Borrower's obligation
ceases to exist by operation of
GUARANTY AGREEMENT - Page 8
law, or because of any other reason or circumstance, it being
agreed that Guarantor shall remain liable hereon regardless of
whether Borrower or any other Person be found not liable on the
Guaranteed Obligations, or any part thereof, for any reason (and
regardless of any joinder of Borrower or any other party in any
action to obtain payment or performance of any or all of the
Guaranteed Obligations).
(b) In the event any payment by Borrower or any other party to
Lender is held to constitute a preference, fraudulent transfer or other
voidable payment under any bankruptcy, insolvency or similar law, or if for
any other reason Lender is required to refund such payment or pay the
amount thereof to any other party, such payment by Borrower or any other
party to Lender shall not constitute a release of Guarantor from any
liability hereunder, and this Guaranty shall continue to be effective or
shall be reinstated (notwithstanding any prior release or discharge by
Lender of this Guaranty or of Guarantor), as the case may be, with respect
to, and this Guaranty shall apply to, any and all amounts so refunded by
Lender or paid by Lender to another party (which amounts shall constitute
part of the Guaranteed Obligations), and any interest paid by Lender and
any attorneys' fees, costs and expenses paid or incurred by Lender in
connection with any such event. It is the intent of Guarantor and Lender
that the obligations and liabilities of 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 not
subject to refund or disgorgement, the obligations and liabilities of
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. Lender shall be entitled to continue to hold this Guaranty in
its possession for a period of one year from the date the Guaranteed
Obligations are paid and performed in full and for so long thereafter as
may be necessary to enforce any obligation of Guarantor hereunder and/or to
exercise any right or remedy of Lender hereunder.
(c) If acceleration of the time for payment of any amount payable by
Borrower under the Note, the Loan Agreement, or any other Loan Document is
stayed or delayed by any Law or Tribunal, all such amounts shall
nonetheless be payable by Guarantor on demand by Lender.
4. SUBORDINATION. If, for any reason whatsoever, Borrower is now or
hereafter becomes indebted to Guarantor:
(a) such indebtedness and all interest thereon and all liens, security
interests and rights now or hereafter existing with respect to property of
Borrower securing same shall, at all times, be subordinate in all respects
to the Guaranteed Obligations and to all liens, security interests and
rights now or hereafter existing to secure the Guaranteed Obligations;
(b) Guarantor shall not be entitled to enforce or receive payment,
directly or indirectly, of any such indebtedness of Borrower to Guarantor
until the Guaranteed Obligations have been fully and finally paid and
performed;
(c) Guarantor hereby assigns and grants to Lender a security
interest in all such indebtedness and security therefor, if any, of
Borrower to Guarantor now existing or hereafter arising, including any
dividends and payments pursuant to debtor relief or insolvency
proceedings referred to below. In the event of receivership,
bankruptcy, reorganization, arrangement or other debtor relief or
insolvency proceedings involving Borrower as debtor, Lender shall have
the right to prove its claim in any such proceeding so as to establish
its rights hereunder and shall have the right to receive directly from
the receiver, trustee or other custodian (whether or not a default
shall have occurred or be continuing under any of the Loan Documents),
dividends and payments that are payable upon any obligation of
Borrower to Guarantor now existing or hereafter arising, and to have
all benefits of any security therefor, until the Guaranteed
Obligations have been fully and finally paid and performed. If,
notwithstanding the foregoing provisions, Guarantor should receive any
payment, claim or distribution that is prohibited as provided above in
GUARANTY AGREEMENT - Page 9
this SECTION 4, Guarantor shall pay the same to Lender immediately.
Guarantor hereby agreeing that it shall receive the payment, claim or
distribution in trust for Lender and shall have absolutely no dominion
over the same except to pay it immediately to Lender; and
(d) Guarantor shall promptly upon request of Lender from time to time
execute such documents and perform such acts as Lender may require to
evidence and perfect its interest and to permit or facilitate exercise of
its rights under this SECTION 4, including, but not limited to, execution
and delivery of financing statements, proofs of claim, further assignments
and security agreements, and delivery to Lender of any promissory notes or
other instruments evidencing indebtedness of Borrower to Guarantor. All
promissory notes, accounts receivable ledgers or other evidences, now or
hereafter held by Guarantor, of obligations of Borrower to Guarantor shall
contain a specific written notice thereon that the indebtedness evidenced
thereby is subordinated under and is subject to the terms of this Guaranty.
5. OTHER LIABILITY OF GUARANTOR OR BORROWER. If Guarantor becomes liable,
by endorsement or otherwise, for any indebtedness owing by Borrower to Lender
other than under this Guaranty, such liability shall not be in any manner
impaired or affected hereby, and the rights of Lender hereunder shall be
cumulative of any and all other rights that Lender may have against Guarantor.
If Borrower is or becomes indebted to Lender for any indebtedness other than or
in excess of the Indebtedness for which Guarantor is liable under this Guaranty,
any payment received or recovery realized upon any indebtedness of Borrower to
Lender may, except to the extent paid by Guarantor on the Indebtedness for which
Guarantor is liable under this Guaranty or specifically required by Law or
agreement of Lender to be applied to the Indebtedness for which Guarantor is
liable under this Guaranty, in Lender's sole discretion, be applied upon
indebtedness of Borrower to Lender other than the Indebtedness for which
Guarantor is liable under this Guaranty.
6. LENDER ASSIGNS. This Guaranty is for the benefit of Lender and
Lender'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. Guarantor waives notice of any
transfer or assignment of the Guaranteed Obligations, or any part thereof, and
agrees that failure to give notice will not affect the liabilities of Guarantor
hereunder.
7. BINDING EFFECT. This Guaranty is binding not only on Guarantor, but
also on Guarantor's heirs, personal representatives, successors and assigns.
Upon the death of Guarantor, this Guaranty shall continue against Guarantor's
estate as to all of the Guaranteed Obligations, including that portion incurred
or arising after the death of Guarantor and shall be provable in full against
Guarantor's estate, whether or not the Guaranteed Obligations are then due and
payable. If this Guaranty is signed by more than one person, then all of the
obligations of Guarantor arising hereunder shall be jointly and severally
binding on each of the undersigned, and their respective heirs, personal
representatives, successors and assigns, and the term "GUARANTOR" shall mean all
such persons and each of them individually. Words importing "PERSONS" herein
shall include firms, associations, partnerships (including limited
partnerships), joint ventures, trusts, corporations and other legal entities,
including public or governmental bodies, agencies or instrumentalities, as well
as natural persons.
8. GOVERNING LAW FORUM. THIS GUARANTY, AND ITS VALIDITY, ENFORCEMENT,
AND INTERPRETATION, SHALL FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND APPLICABLE UNITED STATES
FEDERAL LAW, AND IS INTENDED TO BE PERFORMED IN ACCORDANCE WITH, AND ONLY TO THE
EXTENT PERMITTED BY, SUCH LAWS. ALL OBLIGATIONS OF GUARANTOR HEREUNDER ARE
PAYABLE AND PERFORMABLE AT THE PLACE OR PLACES WHERE THE GUARANTEED OBLIGATIONS
ARE PAYABLE AND PERFORMABLE. GUARANTOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY FOR GUARANTOR AND IN RESPECT OF GUARANTOR'S PROPERTY TO THE
NON-EXCLUSIVE JURISDICTION OF ANY TEXAS STATE COURT, OR ANY UNITED STATES
FEDERAL COURT, SITTING IN THE CITY OF
GUARANTY AGREEMENT - Page 10
DALLAS, TEXAS, AND TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR UNITED
STATES FEDERAL COURT SITTING IN THE STATE IN WHICH ANY OF THE PROPERTY IS
LOCATED, OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY OR THE GUARANTEED OBLIGATIONS.
9. INVALIDITY OF CERTAIN PROVISIONS. 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.
10. ATTORNEYS' FEES AND COSTS OF COLLECTION. Guarantor shall pay on demand
all reasonable attorneys' fees and all other costs and expenses incurred by
Lender in the enforcement of or preservation of Lender's rights under this
Guaranty. Guarantor agrees to pay interest on any expenses or other sums due to
Lender under this SECTION 10 that are not paid when due, at a rate per annum
equal to the lesser of (i) the Maximum Rate, or (ii) the Past Due Rate, as each
is defined in the Notes. Guarantor's obligations and liabilities under this
SECTION 10 shall survive any payment or discharge in full of the Guaranteed
Obligations.
11. PAYMENTS. All sums payable under this Guaranty shall be paid in lawful
money of the United States of America that at the time of payment is legal
tender for the payment of public and private debts.
12. CONTROLLING AGREEMENT. It is not the intention of Lender or Guarantor
to obligate Guarantor to pay interest in excess of that lawfully permitted to be
paid by Guarantor under applicable Law. Should it be determined that any portion
of the Guaranteed Obligations or any other amount payable by Guarantor under
this Guaranty constitutes interest in excess of the maximum amount of interest
that Guarantor, in Guarantor's capacity as guarantor, may lawfully be required
to pay under applicable Law, the obligation of 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 Guarantor and Lender.
l3. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF GUARANTOR. Guarantor
hereby represents, warrants, and covenants as follows:
(a) Guarantor is the owner of a direct or indirect interest in one or
more of the Borrowers, and Guarantor will derive substantial benefit,
directly or indirectly, from the making of the Loan to one or more of the
Borrowers and from the making of this Guaranty by Guarantor and Guarantor
shall not, during the term hereof, sell, lease, convey, mortgage, assign,
pledge, hypothecate, encumber or transfer its interest in the applicable
Borrower except to Lender pursuant to the Security Agreement of even date;
(b) this Guaranty is duly authorized and valid, and is binding upon
and enforceable against Guarantor;
(c) Guarantor is not, and the execution, delivery and performance by
Guarantor of this Guaranty will not cause Guarantor to be, in violation of
or in default with respect to any Law or in default (or at risk of
acceleration of indebtedness) under any agreement or restriction by which
Guarantor is bound or affected;
(d) Guarantor is duly organized, validly existing, and in good
standing under the Laws of the state of its organization and has full power
and authority to enter into and perform this Guaranty;
(e) except as has been disclosed to Lender in writing by
Guarantor, there is no Litigation pending or, to the knowledge of
Guarantor, threatened before or by any
GUARANTY AGREEMENT - Page 11
Tribunal against or affecting Guarantor that could reasonably be
expected to have a material adverse effect on guarantor if adversely
determined:
(f) all financial statements and information heretofore furnished to
Lender by Guarantor do, and all financial statements and information
hereafter furnished to Lender by Guarantor will, fully and accurately
present the condition (financial or otherwise) of Guarantor as of their
dates and the results of Guarantor's operations for the periods therein
specified, and, since the date of the most recent financial statements of
Guarantor heretofore furnished to Lender, no material adverse change has
occurred in the financial condition of Guarantor, nor, except as heretofore
disclosed in writing to Lender, has Guarantor incurred any material
liability, direct or indirect, taxed or contingent:
(g) after giving effect to this Guaranty, Guarantor is solvent, is
not engaged or about to engage in business or a transaction for which the
property of Guarantor is an unreasonably small capital, and does not intend
to incur or believe that it will incur debts that will be beyond its
ability to pay as such debts mature and Guarantor acknowledges and agrees
that it shall be a default under this Guaranty if Guarantor does any of the
following:
(1) (i) Executes an assignment for the benefit of
creditors, or takes any action in furtherance thereof, or (ii)
admits in writing its inability to pay, or fails to pay, its
debts generally as they become due, or (iii) as a debtor, files a
petition, case, proceeding or other action pursuant to, or
voluntarily seeks the benefit or benefits of, Title 11 of the
United States Code as now or hereafter in effect or any other
law, domestic or foreign, as now or hereafter in effect relating
to bankruptcy, insolvency, liquidation, receivership,
reorganization, arrangement, composition, extension or adjustment
of debts, or similar laws affecting the rights of creditors
(Title 11 of the United States Code and such other laws being
herein called "DEBTOR RELIEF LAWS"), or takes any action in
furtherance thereof, or (iv) seeks the appointment of a receiver,
trustee, custodian or liquidator of any of its property; or
(2) Suffers the filing of a petition, case, proceeding or
other action against it as a debtor under any Debtor Relief Law
or seeking appointment of a receiver, trustee, custodian or
liquidator of its property, and (i) admits, acquiesces in or
fails to contest diligently the material allegations thereof, or
(ii) the petition, case, proceeding or other action results in
entry of any order for relief or order granting relief sought
against it, or (iii) in a proceeding under the Federal Bankruptcy
Code, the case is converted from one chapter to another, or (iv)
fails to have the petition, case, proceeding or other action
permanently dismissed or discharged on or before the earlier of
trial thereon or sixty (60) days next following the date of its
filing; or
(3) Conceals, removes, or permits to be concealed or
removed, any part of its property, with intent to hinder, delay
or defraud its creditors or any of them, or makes or suffers a
transfer of any of its property which may be fraudulent under any
bankruptcy, fraudulent conveyance or similar law, or makes any
transfer of its property to or for the benefit of a creditor at a
time when other creditors similarly situated have not been paid,
or suffers or permits, while insolvent, any creditor to obtain a
lien (other than as described in SUBPARAGRAPH [4] below) upon any
of its property through legal proceedings which are not vacated
and such lien discharged prior to enforcement thereof and in any
event within sixty (60) days from the date thereof; or
(4) Any Guarantor shall fail to discharge within a period
of thirty (30) days after the commencement thereof any
attachment, sequestration, or similar proceeding or proceedings
involving an aggregate amount in excess of One Million Dollars
($1,000,000) against any of its assets or properties.
GUARANTY AGREEMENT - Page 12
(5) Any Guarantor shall fail to satisfy and discharge
promptly any judgment or judgments for any Guarantor for the
payment of money in an aggregate amount in excess of One Million
Dollars ($1,000,000).
(h) Lender has no duty at any time to investigate or inform Guarantor
of the financial or business condition or affairs of any Borrower or any
change therein, and guarantor will keep himself fully appraised of each
Borrower's financial and business condition;
(i) Guarantor acknowledges and agrees that Guarantor may be required
to pay and perform the Guaranteed Obligations in full without assistance or
support from any Borrower or any other party;
(j) Guarantor has read and fully understands the provisions contained
in the Notes, the Deeds of Trust and the other Loan Documents. Any default
by any Borrower under a Deed of Trust or other Loan Document, and any
default or Event of Default under the Security Agreement shall also be a
default under this Guaranty;
(k) Guarantor shall at all times during the term hereof comply with
the terms and provisions of the Security Agreement, including but not
limited to all financial covenants set forth therein;
(l) Neither Guarantor nor any Affiliate (as defined in the
Security Agreement) of Guarantor holds a partnership interest in any
Borrower other than those interests pledged to Lender in the Security
Agreement. If any Affiliate shall acquire any interest in any
Borrower, Guarantor shall cause such interest to be pledged to Lender.
Guarantor's representations, warranties and covenants are a material
inducement to Lender to enter into the other Loan Documents and shall survive
the execution hereof and any bankruptcy, foreclosure, transfer of security or
other event affecting Borrower, Guarantor, any other party, or any security for
all or any part of the Guaranteed Obligations.
14. NOTICES. Unless specifically provided otherwise, any notice for
purposes of this Guaranty or any other Loan Document shall be given in writing
or by telex or by facsimile (fax) transmission and shall be addressed or
delivered to the respective addresses set forth at the end of this Guaranty, or
to such other address as may have been previously designated by the intended
recipient by notice given in accordance with this Section. If sent by prepaid,
registered or certified mail (return receipt requested), the notice shall be
deemed effective when the receipt is signed or when the attempted initial
delivery is refused or cannot be made because of a change in address of which
the sending party has not been notified; if transmitted by telex, the notice
shall be effective when transmitted (answerback confirmed); and if transmitted
by facsimile or personal delivery, the notice shall be effective when received.
No notice of change of address shall be effective except upon actual receipt.
This SECTION 14 shall not be construed in any way to affect or impair any waiver
of notice or demand provided in this Guaranty or in any other Loan Document or
to require giving notice or demand to or upon any Person in any situation or for
any reason.
15. CUMULATIVE RIGHTS. The exercise by Lender of any right or remedy
hereunder or under any other Loan Document, or at Law or in equity, shall not
preclude the concurrent or subsequent exercise of any other right or remedy.
Lender shall have all rights, remedies and recourses afforded to Lender by
reason of this Guaranty or any other Loan Document or by Law or equity or
otherwise, and the same (a) shall be cumulative and concurrent, (b) may be
pursued separately, successively or concurrently against Guarantor or others
obligated for the Guaranteed Obligations, or any part thereof, or against any
one or more of them, or against any security or otherwise, at the sole
discretion of Lender, (c) may be exercised as often as occasion therefor shall
arise, it being agreed by 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 (d) are intended to be, and shall be,
nonexclusive. No waiver of any default on the part of 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
GUARANTY AGREEMENT - Page 13
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 Lender
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 Guarantor in any case shall of itself entitle
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
Lender with respect hereto, or any default or breach, can be waived, nor can
this Guaranty or 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
Guarantor, by Lender.
16. TERM OF GUARANTY. This Guaranty shall continue in effect until all the
Guaranteed Obligations are fully and finally paid, performed, and discharged,
except that, and notwithstanding any return of this Guaranty to Guarantor, this
Guaranty shall continue in effect (i) with respect to any of the Guaranteed
Obligations that survive the release of the liens of the Deeds of Trust, (ii)
with respect to all obligations and liabilities of Guarantor under SECTION 10,
and (iii) as provided in SECTION 3(b).
17. FINANCIAL STATEMENTS. Guarantor shall furnish or cause to be furnished
to Lender all financial reports, balance sheets, operating statements and other
financial reporting information as is required under the Security Agreement.
All balance sheets and operating statements together shall include
disclosure of all contingent liabilities, a profit and loss statement, an income
and expense statement, a reconciliation of capital and surplus, and a schedule
of sources and uses of funds, a detailed cash flow statement and changes in
financial condition for the applicable period, together with such supporting
schedules and documentation Lender requires. All balance sheets and operating
statements shall be certified by Guarantor and the balance sheet and operating
statement described above shall be audited by independent certified public
accountants of recognized standing, selected by Guarantor, and consented to by
Lender without qualification or exception other than those acceptable to Lender.
18. DISCLOSURE OF INFORMATION. Lender may sell or offer to sell the Loan or
interests in the Loan to one or more assignees or participants and may disclose
to any such assignee or participant or prospective assignee or prospective
participant, Lender's affiliates including NationsBanc Capital Markets, Inc.,
any regulatory body having jurisdiction over Lender, and to any other parties as
necessary or appropriate in Lender's reasonable judgment any information Lender
now has or hereafter obtains pertaining to the Guaranteed Obligations, this
Guaranty, and Guarantor including, without limitation, information regarding any
security for the Guaranteed Obligations or for this Guaranty, any credit or
other information on Guaranty, Borrower, and any other party liable, directly or
indirectly, for any part of the Guaranteed Obligations.
19. RIGHT OF SET-OFF. Upon the occurrence and during the continuance of
any Default, however defined, in the payment or performance when due of any of
the Guaranteed Obligations, Lender is hereby authorized at any time and from
time to time, to the fullest extent permitted by applicable Law, without notice
to any Person (any such notice being expressly waived by Guarantor to the
fullest extent permitted by applicable law), to set-off and apply any and all
deposits (general or special, time or demand, provisional or final), funds, or
assets at any time held and other indebtedness at any time owing by Lender to or
for the credit or the account of Guarantor against any and all of the
obligations of Guarantor now or hereafter existing under this Guaranty, whether
or not Lender shall have made any demand under this Guaranty or exercised any
other right or remedy hereunder and although such obligations may be unmatured,
Lender will promptly notify Guarantor after any such set-off and application
made by Lender, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of Lender under this
SECTION 20 are in addition to the other rights and remedies (including other
rights of set-off) that Lender may have.
20. FURTHER ASSURANCES. Guarantor at Guarantor's expense will promptly
execute and deliver to Lender upon Lender's request all such other and further
documents, agreements, and
GUARANTY AGREEMENT - Page 14
instruments in compliance with or accomplishment of the agreements of Guarantor
under this Guaranty.
21. NO FIDUCIARY RELATIONSHIP. The relationship between Lender and
Guarantor is solely that of lender and guarantor. Lender has no fiduciary or
other special relationship with or duty to Guarantor and none is created
hereby.
22. DEFINITIONS AND INTERPRETATION. As used in this Guaranty, the term
"Person" means firms, associations, partnerships (including limited
partnerships), joint ventures, trusts, corporations and other legal entities
including public or governmental bodies, agencies or instrumentalities, as well
as natural persons. If this Guaranty is signed by more than one Person as
"GUARANTOR," then the term "GUARANTOR" as used in this Guaranty shall refer to
all such Persons jointly and severally, and all promises, agreements, covenants,
waivers, consents, representations, warranties and other provisions in this
Agreement are made by and shall be binding upon each and every such undersigned
Person, jointly and severally. The term "LENDER" shall be deemed to include any
subsequent holder(s) of the Note. Whenever the context of any provisions hereof
shall require it, words in the singular shall include the plural, words in the
plural shall include the singular, and pronouns of any gender shall include the
other genders. Captions and headings in the Loan Documents are for convenience
only and shall not affect the construction of the Loan Documents. All references
in this Guaranty to Schedules, Articles, Sections, Subsections, paragraphs and
subparagraphs refer to the respective subdivisions of this Guaranty, unless such
reference specifically identifies another document. The terms "HEREIN,"
"HEREOF," "HERETO," "HEREUNDER" and similar terms refer to this Guaranty and not
to any particular Section or subsection of this Guaranty. The terms "INCLUDE"
and "INCLUDING" shall be interpreted as if followed by the words "WITHOUT
LIMITATION." All references in this Guaranty to sums denominated in dollars or
with the symbol "$" refer to the lawful currency of the United States of
America, unless such reference specifically identifies another currency.
23. TIME OF ESSENCE. Time shall be of the essence in this Guaranty with
respect to all of Guarantor's obligations hereunder.
24. EXECUTION. This Guaranty may be executed in multiple counterparts,
each of which, for all purposes, shall be deemed an original, and all of which
together shall constitute one and the same agreement.
25. ENTIRE AGREEMENT. This Guaranty embodies the entire agreement between
Lender and Guarantor with respect to the guaranty by Guarantor of the Guaranteed
Obligations. This Guaranty supersedes all prior agreements and understandings,
if any, with respect to guaranty by 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 Guarantor and delivery to
Lender.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
26. INDEMNIFICATION REGARDING SUITS OR CLAIMS. Guarantor hereby agrees to
indemnify and hold Lender harmless against any and all losses, liabilities,
claims, damages, costs or expenses of any kind, including but not limited to
attorney's fees, to which Lender may become subject as a result of the
following:
(a) any claim, suit, or other action filed or otherwise instituted
against Guarantor, any Borrower, or any party to the Security Agreement,
[including, but not limited to ALKER ET AL v. X.X. ENGLISH ET AL (U.S. District
Court, Northern District of California)], as the same creates a claim or cause
of action which challenges the ability of the Apartment Investment and
Management Company, a Maryland corporation, or the Company (as defined in the
Security Agreement) to enter into or perform their respective obligations with
respect to this Guaranty or
GUARANTY AGREEMENT - Page 15
the Company to enter into or perform its obligations with respect to
the Security Agreement: or
(b) any failure of any Mortgaged Property as defined in the Deeds of
Trust) to comply with (i) applicable Laws (as defined in the Deeds of
Trust) or restrictive covenants regarding parking requirements or (ii) the
Access Laws (as defined in the Deeds of Trust).
(The balance of this page is intentionally left blank.)
GUARANTY AGREEMENT - Page 16
IN WITNESS WHEREOF, guarantor duly executed this Guaranty as of the date first
written above.
GUARANTOR:
APARTMENT INVESTMENT AND MANAGEMENT
COMPANY
Address of Guarantor:
0000 X. Xxxxxxxx Xxxxxx, 17th Floor By: /s/ X. Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000 -------------------------------------
Fax No. 000-000-0000 Xxxxx Xxxxxx, Vice President
Telephone No. 000-000-0000
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, INC.,
a Delaware corporation.
General Partner
By: /s/ X. Xxxxxx
--------------------------------
Xxxxx Xxxxxx, Vice President
AIMCO-GP, INC.
By: /s/ X. Xxxxxx
-------------------------------------
Xxxxx Xxxxxx, Vice President
AIMCO-LP, INC.
By: /s/ X. Xxxxxx
-------------------------------------
Xxxxx Xxxxxx, Vice President
AIMCO HOLDINGS, L.P.,
By: AIMCO HOLDINGS QRS. INC.,
a Delaware limited
partnership.
General Partner
By: /s/ X. Xxxxxx
--------------------------------
Xxxxx Xxxxxx, Vice President
AIMCO HOLDINGS QRS, INC.
By: /s/ X. Xxxxxx
-------------------------------------
Xxxxx Xxxxxx, Vice President
GUARANTY AGREEMENT - Signature Page
Executed by Lender for the purpose of
the notice of final agreement set forth
above:
Address of Lender: LENDER:
NationsBank of Texas. N.A. NATIONSBANK OF TEXAS. N.A.
000 Xxxx Xxxxxx 00xx Xxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Real Estate Loan Administration By: /s/ Xxxx X. Xxxx
Fax No. 000-000-0000 -------------------------------------
Telephone No. 000-000-0000 Name: Xxxx X. Xxxx
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Title: S.V.P.
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GUARANTY AGREEMENT - Signature Page
