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LIMITED GUARANTY
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged,
the undersigned, XXXXXXX REALTY INVESTORS, INC. (whether one or more,
hereinafter together called "Guarantor" in the singular) absolutely guarantees
and agrees to pay to THE PRUDENTIAL INSURANCE COMPANY OF AMERICA (hereinafter
called "Lender") at the address designated in the Instrument (as hereinafter
defined) for payment thereof or as such address may be changed as provided in
the Instrument, all limited and full recourse indebtedness of XXXXXXX
PROPERTIES RESIDENTIAL, L.P., a limited partnership organized under the laws
of the State of Georgia (hereinafter called "Borrower"), under Paragraphs 8
and 9 of that certain Promissory Note, dated October 25, 1999 in the original
principal amount of Nine Million Five Hundred Thousand and 00/100 Dollars
($9,500,000.00), payable to the order of Lender, and all modifications,
renewals and extensions of and substitutions for said Promissory Note (said
Promissory Note and all modifications, renewals and extensions thereof and all
substitutions therefor hereinafter called the "Note"), together with all
interest, attorneys' fees and collection costs provided in the Note (all such
indebtedness is hereinafter called the "Indebtedness"), which Note is secured
by the Deed to Secure Debt and Security Agreement (hereinafter called the
"Instrument") of even date herewith from Borrower to Lender and to pay any and
all costs, attorneys' fees and expenses incurred or expended by Xxxxxx in
collecting any of the Indebtedness or in enforcing any right granted
hereunder.
Except as otherwise limited as provided herein, in the event Borrower
fails to pay the Indebtedness, Guarantor shall immediately upon written demand
of Lender promptly and with due diligence pay for the benefit of Lender all of
the Indebtedness.
Guarantor expressly waives presentment for payment, demand, notice of
demand and of dishonor and nonpayment of the Indebtedness, notice of intention
to accelerate the maturity of the Indebtedness or any part thereof, notice of
disposition of collateral, notice of acceleration of the maturity of the
Indebtedness or any part thereof, protest and notice of protest, diligence in
collecting, and the bringing of suit against any other party. Lender shall be
under no obligation to notify Guarantor of its acceptance hereof or of any
advances made or credit extended on the faith hereof or the failure of
Borrower to pay any of the Indebtedness as it matures or any default in the
performance of any of the Obligations under the Instrument, or to use
diligence in preserving the liability of any person on the Indebtedness or the
Obligations or in bringing suit to enforce collection of the Indebtedness or
performance of the Obligations. Guarantor waives all defenses given to
sureties or guarantors at law or in equity other than the actual payment of
the Indebtedness and performance of the Obligations and all defenses based
upon questions as to the validity, legality or enforceability of the
Indebtedness and/or the Obligations and agrees that Guarantor shall be
primarily liable hereunder.
Lender, without authorization from or notice to Guarantor and without
impairing, modifying, changing, releasing, limiting or affecting the liability
of Guarantor hereunder, may from time to time at its discretion and with or
without valuable consideration, alter, compromise, accelerate, renew, extend
or change the time or manner for the payment of any or all of the
Indebtedness, increase or reduce the rate of interest thereon, take and
surrender security, exchange security by way of substitution, or in any way it
deems necessary take, accept, withdraw, subordinate, alter, amend, modify or
eliminate security, add or release or discharge endorsers, guarantors or other
obligors, make changes of any sort whatever in the terms of payment of the
Indebtedness, in the Obligations or in the manner of doing business with
Borrower, or settle or compromise with Borrower or any other person or persons
liable on the Indebtedness or the Obligations on such terms as it may see fit,
and may apply all moneys received from the Borrower or others, or from any
security held (whether held under a security instrument or not), in such
manner upon the Indebtedness (whether then due or not) as it may determine
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to be in its best interest, without in any way being required to marshal
securities or assets or to apply all or any part of such moneys upon any
particular part of the Indebtedness. It is specifically agreed that Lender is
not required to retain, hold, protect, exercise due care with respect thereto,
perfect security interests in or otherwise assure or safeguard any security
for the Indebtedness; no failure by Xxxxxx to do any of the foregoing and no
exercise or nonexercise by Lender of any other right or remedy of Lender shall
in any way affect any of Guarantor's obligations hereunder or any security
furnished by Guarantor or give Guarantor any recourse against Lender.
The liability of Guarantor hereunder shall not be modified, changed,
released, limited or impaired in any manner whatsoever on account of any or
all of the following: (a) the incapacity, death, disability, dissolution or
termination of Guarantor, Borrower, Lender or any other person or entity; (b)
the failure by Lender to file or enforce a claim against the estate (either in
administration, bankruptcy or other proceeding) of Borrower or any other
person or entity; (c) recovery from Borrower or any other person or entity
becomes barred by any statute of limitations or is otherwise prevented; (d)
any defenses, set-offs or counterclaims which may be available to Borrower or
any other person or entity; (e) any transfer or transfers of any of the
property covered by the Instrument or any other instrument securing the
payment of the Note; (f) any modifications, extensions, amendments, consents,
releases or waivers with respect to the Note, the Deed to Secure Debt and
Security Agreement, any other instrument now or hereafter securing the payment
of the Note, or this Guaranty; (g) any failure of Lender to give any notice to
Guarantor of any default under the Note, the Deed to Secure Debt and Security
Agreement, any other instrument securing the payment of the Note, or this
Guaranty; (h) Guarantor is or becomes liable for any indebtedness owing by
Borrower to Lender other than under this Guaranty; or (i) any impairment,
modification, change, release or limitation of the liability of, or stay of
actions or lien enforcement proceedings against, Borrower, its property, or
its estate in bankruptcy resulting from the operation of any present or future
provision of the Federal Bankruptcy Code or any other present or future
federal or state insolvency, bankruptcy or similar law (all of the foregoing
hereinafter collectively called "applicable Bankruptcy Law") or from the
decision of any court.
Lender shall not be required to pursue any other remedies before
invoking the benefits of the guaranties contained herein, and specifically it
shall not be required to make demand upon or institute suit or otherwise
pursue or exhaust its remedies against Borrower or any surety other than
Guarantor or to proceed against any security now or hereafter existing for the
payment of any of the Indebtedness. Xxxxxx may maintain an action on this
Guaranty without joining Borrower therein and without bringing a separate
action against Borrower.
If for any reason whatsoever (including but not limited to ultra
xxxxx, lack of authority, illegality, force majeure, act of God or
impossibility) the Indebtedness or the Obligations cannot be enforced against
Borrower, such unenforceability shall in no manner affect the liability of
Guarantor hereunder and Guarantor shall be liable hereunder notwithstanding
that Borrower may not be liable for such Indebtedness or such Obligations and
to the same extent as Guarantor would have been liable if such Indebtedness or
Obligations had been enforceable against Borrower.
Guarantor absolutely and unconditionally covenants and agrees that in
the event that Borrower does not or is unable so to pay the Indebtedness or
perform the Obligations for any reason, including, without limitation,
liquidation, dissolution, receivership, conservatorship, insolvency,
bankruptcy, assignment for the benefit of creditors, sale of all or
substantially all assets, reorganization, arrangement, composition, or
readjustment of, or other similar proceedings affecting the status,
composition, identity, existence, assets or obligations of Borrower, or the
disaffirmance or termination of any of the Indebtedness or Obligations in or
as a result of any such proceeding, Guarantor shall pay the Indebtedness and
perform the Obligations and no such occurrence shall in any way affect
Guarantor's obligations hereunder.
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Should the status of Borrower change, this Guaranty shall continue
and also cover the Indebtedness and Obligations of Borrower under the new
status according to the terms hereof. This Guaranty shall remain in full force
and effect notwithstanding any transfer of the property covered by the
Instrument.
In the event any payment by Borrower to Lender is held to constitute
a preference under any applicable Bankruptcy 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 to Lender shall not constitute a release
of Guarantor from any liability hereunder, but Guarantor agrees to pay such
amount to Lender upon demand and this Guaranty shall continue to be effective
or shall be reinstated, as the case may be, to the extent of any such payment
or payments.
Guarantor agrees that it shall not have (a) the right to the benefit
of, or to direct the application of, any security held by Xxxxxx (including
the property covered by the Deed to Secure Debt and Security Agreement and any
other instrument securing the payment of the Note), any right to enforce any
remedy which Lender now has or hereafter may have against Borrower, or any
right to participate in any security now or hereafter held by Lender, or (b)
any defense arising out of the absence, impairment or loss of any right of
reimbursement or subrogation or other right or remedy of Guarantor against
Borrower or against any security resulting from the exercise or election of
any remedies by Xxxxxx (including the exercise of the power of sale under the
Instrument), or any defense arising by reason of any disability or other
defense of Borrower or by reason of the cessation, from any cause, of the
liability of Borrower.
The payment by Guarantor of any amount pursuant to this Guaranty
shall not in any way entitle Guarantor to any right, title or interest
(whether by way of subrogation or otherwise) in and to any of the Indebtedness
or any proceeds thereof, or any security therefor, unless and until the full
amount owing to Lender on the Indebtedness has been fully paid, but when the
same has been fully paid Guarantor shall be subrogated as to any payments made
by it to the rights of Xxxxxx as against Borrower and/or any endorsers,
sureties or other guarantors.
Notwithstanding any payments made by or for the account of Guarantor
on account of the Indebtedness, Guarantor shall not be subrogated to any
rights of Lender until such time as Lender shall have received payment of the
full amount of all Indebtedness. For the purposes of the preceding sentence
only, the Indebtedness shall not be deemed to have been paid in full by
foreclosure of the Instrument or by acceptance of a deed in lieu thereof, and
Guarantor hereby waives and disclaims any interest which it might have in the
property covered by the Instrument or other collateral security for the
Indebtedness, by subrogation or otherwise, following foreclosure of the
Instrument or Lender's acceptance of a deed in lieu thereof.
Guarantor expressly subordinates its rights to payment of any
indebtedness owing from Borrower to Guarantor, whether now existing or arising
at any time in the future, to the prior right of Lender to receive or require
payment in full of the Indebtedness and until payment in full of the
Indebtedness (and including interest accruing on the Note after any petition
under applicable Bankruptcy Law, which post-petition interest Guarantor agrees
shall remain a claim that is prior and superior to any claim of Guarantor
notwithstanding any contrary practice, custom or ruling in proceedings under
such applicable Bankruptcy Law generally), Guarantor agrees not to accept any
payment or satisfaction of any kind of indebtedness of Borrower to Guarantor
or any security for such indebtedness. If Guarantor should receive any such
payment, satisfaction or security for any indebtedness of Borrower to
Guarantor, Guarantor agrees forthwith to deliver the same to Lender in the
form received, endorsed or assigned as may be appropriate for application on
account of, or as security for, the Indebtedness and until so delivered,
agrees to hold the same in trust for Lender.
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Under no circumstances shall the aggregate amount paid or agreed to
be paid hereunder exceed the highest lawful rate permitted under applicable
usury law (the "Maximum Rate") and the payment obligations of Guarantor
hereunder are hereby limited accordingly. If under any circumstances, whether
by reason of advancement or acceleration of the unpaid principal balance of
the Note or otherwise, the aggregate amounts paid hereunder shall include
amounts which by law are deemed interest and which could exceed the Maximum
Rate, Guarantor stipulates that payment and collection of such excess amounts
shall have been and will be deemed to have been the result of a mistake on the
part of both Guarantor and Lender, and Lender shall promptly credit such
excess (to the extent only of such interest payments in excess of the Maximum
Rate) against the unpaid principal balance of the Note, and any portion of
such excess payments not capable of being so credited shall be refunded to
Guarantor. The term "applicable law" as used in this paragraph shall mean the
laws of the State of Georgia or the laws of the United States, whichever laws
allow the greater rate of interest, as such laws now exist or may be changed
or amended or come into effect in the future.
Guarantor hereby represents, warrants and covenants to and with
Lender as follows: (a) the making of the Loan by Xxxxxx to Borrower is and
will be of direct interest, benefit and advantage to Guarantor; (b) Guarantor
is solvent, is not bankrupt and has no outstanding liens, garnishments,
bankruptcies or court actions which could render Guarantor insolvent or
bankrupt, and there has not been filed by or against Guarantor a petition in
bankruptcy or a petition or answer seeking an assignment for the benefit of
creditors, the appointment of a receiver, trustee, custodian or liquidator
with respect to Guarantor or any substantial portion of Guarantor's property,
reorganization, arrangement, rearrangement, composition, extension,
liquidation or dissolution or similar relief under applicable Bankruptcy Law;
(c) all reports, financial statements and other financial and other data which
have been or may hereafter be furnished by Guarantor to Lender in connection
with this Guaranty are or shall be true and correct in all material respects
and do not and will not omit to state any fact or circumstance necessary to
make the statements contained therein not misleading and do or shall fairly
represent the financial condition of Guarantor as of the dates and the results
of Guarantor's operations for the periods for which the same are furnished,
and no material adverse change has occurred since the dates of such reports,
statements and other data in the financial condition of Guarantor; (d) the
execution, delivery and performance of this Guaranty do not contravene, result
in the breach of or constitute a default under any mortgage, deed of trust,
lease, promissory note, loan agreement or other contract or agreement to which
Guarantor is a party or by which Guarantor or any of its properties may be
bound or affected and do not violate or contravene any law, order, decree,
rule or regulation to which Guarantor is subject; (e) there are no judicial or
administrative actions, suits or proceedings pending or, to the best of
Guarantor's knowledge, threatened against or affecting Guarantor or involving
the validity, enforceability or priority of this Guaranty; and (f) this
Guaranty constitutes the legal, valid and binding obligation of Guarantor
enforceable in accordance with its terms.
Guarantor will deliver to Lender within sixty (60) days after each
Note anniversary date financial statements of Guarantor in scope and detail
satisfactory to Lender. The statements shall be sworn and certified as to
accuracy by Guarantor.
Where two or more persons or entities have executed this Guaranty,
unless the context clearly indicates otherwise, all references herein to
"Guarantor" shall mean the guarantors hereunder or either or any of them. All
of the obligations and liability of said guarantors hereunder shall be joint
and several. Suit may be brought against said guarantors, jointly and
severally, or against any one or more of them, less than all, without
impairing the rights of Lender against the other or others of said guarantors;
and Lender may compound with any one or more of said guarantors for such sums
or sum as it may see fit and/or release such of said guarantors from all
further liability to Lender for such indebtedness without impairing the right
of Lender to demand and collect the balance of such indebtedness from the
other or others of said guarantors not so
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compounded with or released; but it is agreed among said guarantors
themselves, however, that such compounding and release shall in nowise impair
the rights of said guarantors as among themselves.
Except as otherwise provided herein, the rights of Lender are
cumulative and shall not be exhausted by its exercise of any of its rights
hereunder or otherwise against Guarantor or by any number of successive
actions until and unless all Indebtedness has been paid and each of the
obligations of Guarantor hereunder has been performed.
All property of Guarantor now or hereafter in the possession or
custody of or in transit to Lender for any purpose, including safekeeping,
collection or pledge, for the account of Guarantor, or as to which Guarantor
may have any right or power, shall be held by Lender subject to a lien and
security interest in favor of Lender to secure payment and performance of all
obligations and liabilities of Guarantor to Lender hereunder. Guarantor hereby
transfers and conveys to Lender any and all balances, credits, deposits,
accounts, items and moneys of Guarantor now or hereafter in the possession or
control of or otherwise with Lender. Lender is hereby granted a first lien
upon, and security interest in, all property of Guarantor of every kind or
description now or hereafter in possession or control of Lender for any
purpose, including all dividends and distributions on or other rights in
connection therewith. The balance of every account of Guarantor with, and each
claim of Guarantor against, Lender existing from time to time shall be subject
to a lien and subject to set off against any and all liabilities of Guarantor
to Lender, and Lender may, at any time and from time to time at its option and
without notice, appropriate and apply toward the payment of any of such
liabilities the balance of each such account or claim of Guarantor against
Lender.
Any notice or communication required or permitted hereunder shall be
given in writing, sent by (a) personal delivery, or (b) expedited delivery
service with proof of delivery, or (c) United States mail, postage prepaid,
registered or certified mail, or (d) prepaid telegram, telex or telecopy, sent
to the intended addressee at the address shown below, or to such other address
or to the attention of such other person as hereafter shall be designated in
writing by the applicable party sent in accordance herewith. Any such notice
or communication shall be deemed to have been given and received either at the
time of personal delivery or, in the case of delivery service or mail, as of
the date of first attempted delivery at the address and in the manner provided
herein, or in the case of telegram, telex or telecopy, upon receipt.
This Guaranty shall be deemed to have been made under and shall be
governed by the laws of the State of Georgia in all respects.
This Guaranty may be executed in any number of counterparts with the
same effect as if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one instrument,
but in making proof hereof it shall only be necessary to produce one such
counterpart.
This Guaranty may only be modified, waived, altered or amended by a
written instrument or instruments executed by the party against which
enforcement of said action is asserted. Any alleged modification, waiver,
alteration or amendment which is not so documented shall not be effective as
to any party.
The books and records of Xxxxxx showing the accounts between Xxxxxx
and Xxxxxxxx shall be admissible in any action or proceeding hereon as prima
facie evidence of the items set forth herein.
Guarantor waives and renounces any and all homestead or exemption
rights Guarantor may have under the Constitution or the laws of any state as
against this Guarantor, and does transfer, convey and assign to
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Lender a sufficient amount of such homestead or exemption as may be allowed,
including such homestead or exemption as may be set apart in bankruptcy, to
pay and perform the Indebtedness and Obligations. Guarantor hereby directs any
trustee in bankruptcy having possession of such homestead or exemption to
deliver to Lender a sufficient amount of property or money set apart as exempt
to pay and perform the Indebtedness and Obligations.
The terms, provisions, covenants and conditions hereof shall be
binding upon Guarantor and the heirs, devisees, representatives, successors
and assigns of Guarantor and shall inure to the benefit of Lender and all
transferees, credit participants, successors, assignees and/or endorsees of
Lender. Within this Guaranty, words of any gender shall be held and construed
to include any other gender and words in the singular number shall be held and
construed to include the plural and words in the plural number shall be held
and construed to include the singular, unless the context otherwise requires.
A determination that any provision of this Guaranty is unenforceable or
invalid shall not affect the enforceability or validity of any other provision
and any determination that the application of any provision of this Guaranty
to any person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to any other
persons or circumstances.
EXECUTED this 25th day of October, 1999.
XXXXXXX REALTY INVESTORS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President
Attest: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
[CORPORATE SEAL]
The address of Guarantor is:
Xxxxxxx Realty Investors, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: President
The address of Lender is:
The Prudential Insurance Company of America
Prudential Capital Group
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Regional Counsel
Prudential Loan No. 6 103 461
Xxxxxxx Residential:Guaranty
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