Exhibit 10.65


 


Loan No. V_ 46690


 


GUARANTY


 


 


 


THIS GUARANTY (“Guaranty”) is executed as of November 23, 2004, by
STEVEN D. ALVIS and JAY K. SEARS, each individuals (singularly and collectively
referred to as “Guarantor”), for the benefit of JPMORGAN CHASE BANK,
N.A., a banking association chartered under the laws of the United States of
America (“Lender”).


 


A.        A-S-K 41 ELDRIDGE-W.
LITTLE YORK, L.P., a Texas limited partnership (“Borrower”), is
indebted to Lender with respect to a loan (“Loan”) evidenced by that certain Promissory Note
dated of even date herewith, executed by Borrower and payable to the order of
Lender in the original principal amount of $8,100,000.00 (together with all
renewals, modifications, increases and extensions thereof, the “Note”), which
Note is secured by the liens and security interests in and to the Property
created by and granted under that certain Deed of Trust and Security Agreement,
of even date herewith (the “Security
Instrument”), executed
by Borrower for the benefit of Lender and further evidenced, secured or
governed by the other Loan Documents (as defined in the Note); and


 


B.         Lender is not willing
to make the Loan, or otherwise extend credit, to Borrower unless Guarantor
unconditionally guarantees payment and performance to Lender of the Guaranteed
Obligations (as hereinafter defined); and


 


C.         Guarantor is the owner
of a direct or indirect interest in Borrower, and Guarantor will directly
benefit from Lender’s making the Loan to Borrower.


 


NOW, THEREFORE, as an inducement to Lender to make the Loan to Borrower
thereunder, and to extend such additional credit as Lender may from time to
time agree to extend under the Loan Documents, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:


 


ARTICLE
1


NATURE
AND SCOPE OF GUARANTY


 


Section 1.1.        GUARANTY OF
OBLIGATIONS. Guarantor hereby absolutely, irrevocably and unconditionally
guarantees to Lender (and its successors and assigns), jointly and severally,
the payment and performance of the Guaranteed Obligations as and when the same
shall be due and payable, whether by lapse of time, by acceleration of maturity
of the Note or otherwise. Guarantor hereby absolutely, irrevocably and unconditionally
covenants and agrees that it is liable, jointly and severally, for the
Guaranteed Obligations as a primary obligor, and that each Guarantor shall
fully perform, jointly and severally, each and every term and provision hereof.


 


Section 1.2.        DEFINITION
OF GUARANTEED OBLIGATIONS. As used herein, the term “Guaranteed Obligations” shall (i) mean each of the obligations of
Borrower under the Environmental Indemnity (as defined in the Security
Instrument), including without limitation


 

















 


the indemnification
provisions contained therein, and (ii) be deemed to include, and Guarantor
shall also be liable for, and shall indemnify, defend and hold Lender harmless
from and against, any and all Losses (as hereinafter defined) incurred or
suffered by Lender to the extent, but only the extent, such Losses arise out of
or in connection with the matters listed below:


 


(a)        the misapplication or
misappropriation of Rents (as defined in the Security Instrument) by Borrower
or Guarantor;


 


(b)       the misapplication or
misappropriation of insurance proceeds or condemnation awards by Borrower or
Guarantor;


 


(c)        Borrower’s failure to
return or to reimburse Lender for all Personal Property (as defined in the
Security Instrument) taken from the Property (as defined in the Security
Instrument) by or on behalf of Borrower and not replaced with Personal Property
of substantially the same utility and of substantially the same or greater
value;


 


(d)       any act of intentional
waste or arson by Borrower, any principal, general partner or member thereof or
by any Indemnitor (as defined in the Security Instrument) or any Guarantor;


 


(e)        any fees or commissions
paid by Borrower to any principal, general partner or member of Borrower, any
Indemnitor or any Guarantor in violation of the terms of this Guaranty, the
Security Instrument or the other Loan Documents; or


 


(f)        Borrower’s failure to
comply with the environmental indemnification provisions of Section 11
of the Security Instrument.


 


In addition, in the event (i) of any fraud, willful misconduct or
material misrepresentation by Borrower, its general partners, if any, its
members, if any, its principals, if any or by any Guarantor or Indemnitor in
connection with the Loan, (ii) of a breach or default under Section 4.3
or Section 8.2 of the Security Instrument, or (iii) the Property or any
part thereof becomes an asset in a voluntary bankruptcy or insolvency
proceeding, then the Guaranteed Obligations shall also include the then unpaid
principal balance of the Debt (as defined in the Security Instrument).


 


For purposes of this Guaranty, the term “Losses” includes any and all claims, suits, liabilities
(including, without limitation, strict liabilities), actions, proceedings,
obligations, debts, actual damages, losses, costs, expenses, diminutions in
value, fines, penalties, charges, fees, judgments, awards, amounts paid in
settlement, litigation costs and reasonable attorneys’ fees of whatever kind or
nature, and whether or not incurred in connection with any judicial or
administrative proceedings.


 


Section 1.3.        NATURE OF
GUARANTY. This Guaranty is an irrevocable, absolute, continuing guaranty of
payment and performance, is joint and several and is not a guaranty of
collection. This Guaranty shall continue to be effective with respect to any
Guaranteed Obligations arising or created after any attempted revocation by
Guarantor and after (if Guarantor is a natural person) Guarantor’s death (in
which event this Guaranty shall be binding upon Guarantor’s estate and
Guarantor’s legal representatives and heirs). The fact that at any time, or
from time to time, the Guaranteed Obligations may be increased or reduced shall
not


 


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release or
discharge the obligation of Guarantor to Lender with respect to the Guaranteed
Obligations. This Guaranty may be enforced by Lender and any subsequent holder
of the Note and shall not be discharged by the assignment or negotiation of all
or part of the Note.


 


Section 1.4.        GUARANTEED
OBLIGATIONS NOT REDUCED BY OFFSET. The Note, the Guaranteed Obligations,
and the liabilities and obligations of Guarantor to Lender hereunder shall not
be reduced, discharged or released because or by reason of any existing or
future offset, claim or defense of Borrower, or any other party, against Lender
or against payment of the Guaranteed Obligations, whether such offset, claim or
defense arises in connection with the Guaranteed Obligations (or the
transactions creating the Guaranteed Obligations) or otherwise.


 


Section 1.5.        PAYMENT BY
GUARANTOR. If all or any part of the Guaranteed Obligations shall not be
punctually paid when due, whether at maturity or earlier by acceleration or
otherwise, Guarantor shall, immediately upon demand by Lender, and without
presentment, protest, notice of protest, notice of non-payment, notice of
intention to accelerate the maturity, notice of acceleration of the maturity,
or any other notice whatsoever, pay in lawful money of the United States of
America, the unpaid amount due on the Guaranteed Obligations to Lender at
Lender’s address as set forth herein. Such demand(s) may be made at any time
coincident with or after the time for payment of all or part of the Guaranteed
Obligations, and may be made from time to time with respect to the same or
different items of Guaranteed Obligations. Such demand shall be deemed made,
given and received in accordance with the notice provisions hereof.


 


Section 1.6.        NO DUTY TO
PURSUE OTHERS. It shall not be necessary for Lender (and Guarantor hereby
waives any rights which Guarantor may have to require Lender), in order to
enforce this Guaranty against Guarantor, first to (i) institute suit or exhaust
its remedies against Borrower or others liable on the Loan or the Guaranteed
Obligations or against any other person, (ii) enforce Lender’s rights against
any collateral which shall ever have been given to secure the Loan, (iii)
enforce Lender’s rights against any other guarantors of the Guaranteed
Obligations, (iv) join Borrower or any others liable on the Guaranteed
Obligations in any action seeking to enforce this Guaranty, (v) exhaust any
remedies available to Lender against any collateral which shall ever have been
given to secure the Loan, or (vi) resort to any other means of obtaining
payment of the Guaranteed Obligations. Lender shall not be required to mitigate
damages or take any other action to reduce, collect or enforce the Guaranteed
Obligations.


 


Section 1.7.        WAIVERS.
Guarantor agrees to the provisions of the Loan Documents, and hereby waives
notice of (i) any other loans or additional advances made by Lender to
Borrower, (ii) acceptance of this Guaranty, (iii) any amendment or extension of
the Note or of any other Loan Documents, (iv) the execution and delivery by
Borrower and Lender of any other loan or credit agreement or of Borrower’s
execution and delivery of any promissory notes or other documents arising under
the Loan Documents or in connection with the Property, (v) the occurrence of
any breach by Borrower or Event of Default (as defined in the Security Instrument),
(vi) Lender’s transfer or disposition of the Guaranteed Obligations, or any
part thereof, (vii) sale or foreclosure (or posting or advertising for sale or
foreclosure) of any collateral for the Guaranteed Obligations, except as
otherwise required under applicable law, (viii) protest, proof of non-payment
or default by Borrower, or (ix) any other action at any time taken or omitted
by Lender.


 


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Section 1.8.        PAYMENT OF
EXPENSES. In the event that Guarantor should breach or fail to timely
perform any provisions of this Guaranty, Guarantor shall, immediately upon
demand by Lender, pay Lender all reasonable costs and expenses (including court
costs and reasonable attorneys’ fees) incurred by Lender in the enforcement
hereof or the preservation of Lender’s rights hereunder. The covenant contained
in this section shall survive the payment and performance of the Guaranteed
Obligations.


 


Section 1.9.        EFFECT OF
BANKRUPTCY. In the event that, pursuant to any insolvency, bankruptcy,
reorganization, receivership or other debtor relief law, or any judgment, order
or decision thereunder, Lender must rescind or restore any payment, or any part
thereof, received by Lender in satisfaction of the Guaranteed Obligations, as set
forth herein, any prior release or discharge from the terms of this Guaranty
given to Guarantor by Lender shall be without effect, and this Guaranty shall
remain in full force and effect. It is the intention of Borrower and Guarantor
that Guarantor’s obligations hereunder shall not be discharged except by
Guarantor’s performance of such obligations and then only to the extent of such
performance.


 


Section 1.10.      DEFERMENT OF
RIGHTS OF SUBROGATION. REIMBURSEMENT AND CONTRIBUTION.


 


(a)        Notwithstanding any payment
or payments made by any Guarantor hereunder, no Guarantor will assert or
exercise any right of Lender or of such Guarantor against Borrower to recover
the amount of any payment made by such Guarantor to Lender by way of
subrogation, reimbursement, contribution, indemnity, or otherwise arising by
contract or operation of law, and such Guarantor shall not have any right of
recourse to or any claim against assets or property of Borrower, whether or not
the obligations of Borrower have been satisfied, all of such rights being
herein expressly waived by such Guarantor until the Obligations (as hereinafter
defined) have been paid in full. Each Guarantor agrees not to seek contribution
or indemnity or other recourse from any other Guarantor hereunder. If any amount
shall nevertheless be paid to a Guarantor by Borrower or another Guarantor
prior to payment in full of the Obligations, such amount shall be held in trust
for the benefit of Lender and shall forthwith be paid to Lender to be credited
and applied to the Obligations, whether matured or unmatured. Until the
Obligations have been paid in full, the provisions of this paragraph shall
survive the termination of this Guaranty, and any satisfaction and discharge of
Borrower by virtue of any payment, court order or any applicable law.


 


(b)       Notwithstanding the
provisions of Section l.l0(a), each Guarantor shall have and be entitled
to (1) all rights of subrogation otherwise provided by applicable law in
respect of any payment it may make or be obligated to make under this Guaranty
and (2) all claims it would have against any other Guarantor in the absence of Section
l.l0(a) and to assert and enforce same, in each case on and after, but at
no time prior to, the date (the “Subrogation
Trigger Date”) which is
91 days after the date on which all sums owed to Lender under the Loan
Documents (the “Obligations”) have been paid in full, if and only if (x)
no Event of Default of the type described in Section 9.1(d) or Section
9.1(e) of the Security Instrument with respect to Borrower or any other
Guarantor has existed at any time on and after the date of this Guaranty up to
and including the Subrogation Trigger Date and (y) the existence of each
Guarantor’s rights under this Section 1.10(b) would not make such
Guarantor a creditor (as defined in the Bankruptcy Code, as such term is
hereinafter defined) of Borrower or any other Guarantor in any


 


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insolvency,
bankruptcy, reorganization or similar proceeding commenced on or prior to the
Subrogation Trigger Date.


 


Section 1.11.      BANKRUPTCY
CODE WAIVER. It is the intention of the parties that the Guarantor shall
not be deemed to be a “creditor” or “creditors” (as defined in Section 101 of
the United States Bankruptcy Code) of Borrower, or any other guarantor, by
reason of the existence of this Guaranty, in the event that Borrower or any
other guarantor, becomes a debtor in any proceeding under the Bankruptcy Code,
and in connection herewith, Guarantor hereby waives any such right as a
“creditor” under the Bankruptcy Code. This waiver is given to induce Lender to
make the Loan evidenced by the Note to Borrower. After the Loan is paid in full
and there shall be no obligations or liabilities under this Guaranty
outstanding, this waiver shall be deemed to be terminated.


 


Section 1.12.      “BORROWER.”
The term “Borrower” as used herein shall include any new or
successor corporation, association, partnership (general or limited), joint
venture, trust or other individual or organization formed as a result of any
merger, reorganization, sale, transfer, devise, gift or bequest of Borrower or
any interest in Borrower.


 


ARTICLE 2

EVENTS AND CIRCUMSTANCES NOT REDUCING

OR DISCHARGING GUARANTOR’S OBLIGATIONS


 


Guarantor hereby consents and agrees to each of the following, and
agrees that Guarantor’s obligations under this Guaranty shall not be released,
diminished, impaired, reduced or adversely affected by any of the following,
and waives any common law, equitable, statutory or other rights (including without
limitation rights to notice) which Guarantor might otherwise have as a result
of or in connection with any of the following:


 


Section 2.1.        MODIFICATIONS.
Any renewal, extension, increase, modification, alteration or rearrangement of
all or any part of the Guaranteed Obligations, Note, Loan Documents, or other
document, instrument, contract or understanding between Borrower, Lender, or
any other parties with respect to the Guaranteed Obligations.


 


Section 2.2.        ADJUSTMENT.
Any adjustment, indulgence, forbearance or compromise that might be granted or
given by Lender to Borrower or any Guarantor in connection with the Guaranteed
Obligations.


 


Section 2.3.        CONDITION
OF BORROWER OR GUARANTOR. The insolvency, bankruptcy, arrangement,
adjustment, composition, liquidation, disability, dissolution or lack of power
of Borrower, Guarantor or any other party at any time liable for the payment of
all or part of the Guaranteed Obligations; or any dissolution of Borrower or
Guarantor, or any sale, lease or transfer of any or all of the assets of
Borrower or Guarantor, or any changes in the shareholders, partners or members
of Borrower or Guarantor; or any reorganization of Borrower or Guarantor.


 


Section 2.4.        INVALIDITY
OF GUARANTEED OBLIGATIONS. The invalidity, illegality or unenforceability
of all or any part of the Guaranteed Obligations, or any document or agreement
executed in connection with the Guaranteed Obligations, for any reason
whatsoever, including without limitation the fact that (i) the Guaranteed Obligations,
or any part thereof,


 


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exceed the amount
permitted by law, (ii) the act of creating the Guaranteed Obligations or any
part thereof, is ultra vires, (iii) the officers or representatives executing
the Note or the other Loan Documents or otherwise creating the Guaranteed
Obligations acted in excess of their authority, (iv) the Guaranteed Obligations
violate applicable usury laws, (v) Borrower has valid defenses, claims or
offsets (whether at law, in equity or by agreement) which render the Guaranteed
Obligations wholly or partially uncollectible from Borrower, (vi) the creation,
performance or repayment of the Guaranteed Obligations (or the execution,
delivery and performance of any document or instrument representing part of the
Guaranteed Obligations or executed in connection with the Guaranteed
Obligations, or given to secure the repayment of the Guaranteed Obligations) is
illegal, uncollectible or unenforceable, or (vii) the Note or any of the other Loan
Documents have been forged or otherwise are irregular or not genuine or
authentic, it being agreed that Guarantor shall remain liable hereon regardless
of whether Borrower or any other person may be found not liable on the
Guaranteed Obligations or any part thereof for any reason.


 


Section 2.5.        RELEASE OF
OBLIGORS. Any full or partial release of the liability of Borrower on the
Guaranteed Obligations, or any part thereof, or of any co-guarantors, or any
other person or entity now or hereafter liable, whether directly or indirectly,
jointly, severally, or jointly and severally, to pay, perform, guarantee or
assure the payment of the Guaranteed Obligations, or any part thereof, it being
recognized, acknowledged and agreed by Guarantor that Guarantor may be required
to pay the Guaranteed Obligations in full without assistance or support of any
other party, and Guarantor has not been induced to enter into this Guaranty on
the basis of a contemplation, belief, understanding or agreement that other
parties will be liable to pay or perform the Guaranteed Obligations, or that
Lender will look to other parties to pay or perform the Guaranteed Obligations.


 


Section 2.6.        OTHER
COLLATERAL. The taking or accepting of any other security, collateral or
guaranty, or other assurance of payment, for all or any part of the Guaranteed
Obligations.


 


Section 2.7.        RELEASE OF
COLLATERAL. Any release, surrender, exchange, subordination, deterioration,
waste, loss or impairment (including without limitation negligent, willful,
unreasonable or unjustifiable impairment) of any collateral, property or
security, at any time existing in connection with, or assuring or securing
payment of, all or any part of the Guaranteed Obligations.


 


Section 2.8.        CARE AND
DILIGENCE. The failure of Lender or any other party to exercise diligence
or reasonable care in the preservation, protection, enforcement, sale or other
handling or treatment of all or any part of such collateral, property or
security, including but not limited to any neglect, delay, omission, failure or
refusal of Lender (i) to take or prosecute any action for the collection of any
of the Guaranteed Obligations, or (ii) to foreclose, or initiate any action to
foreclose, or, once commenced, prosecute to completion any action to foreclose
upon any security therefor, or (iii) to take or prosecute any action in
connection with any instrument or agreement evidencing or securing all or any
part of the Guaranteed Obligations.


 


Section 2.9.        UNENFORCEABILITY.
The fact that any collateral, security, security interest or lien contemplated
or intended to be given, created or granted as security for the


 


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repayment of the
Guaranteed Obligations, or any part thereof, shall not be properly perfected or
created, or shall prove to be unenforceable or subordinate to any other
security interest or lien, it being recognized and agreed by Guarantor that
Guarantor is not entering into this Guaranty in reliance on, or in
contemplation of the benefits of, the validity, enforceability, collectibility
or value of any of the collateral for the Guaranteed Obligations.


 


Section 2.10.      MERGER.
The reorganization, merger or consolidation of Borrower into or with any other
corporation or entity.


 


Section 2.11.      PREFERENCE.
Any payment by Borrower to Lender is held to constitute a preference under
bankruptcy laws, or for any reason Lender is required to refund such payment or
pay such amount to Borrower or someone else.


 


Section 2.12.      OTHER
ACTIONS TAKEN OR OMITTED. Any other action taken or omitted to be taken
with respect to the Loan Documents, the Guaranteed Obligations, or the security
and collateral therefor, whether or not such action or omission prejudices
Guarantor or increases the likelihood that Guarantor will be required to pay
the Guaranteed Obligations pursuant to the terms hereof, it is the unambiguous
and unequivocal intention of Guarantor that Guarantor shall be obligated to pay
the Guaranteed Obligations when due, notwithstanding any occurrence,
circumstance, event, action, or omission whatsoever, whether or not
contemplated, and whether or not otherwise or particularly described herein,
which obligation shall be deemed satisfied only upon the full and final payment
and satisfaction of the Guaranteed Obligations.


 


ARTICLE 3

REPRESENTATIONS AND WARRANTIES


 


To induce Lender to enter into the Loan Documents and extend credit to
Borrower, Guarantor represents and warrants to Lender as follows:


 


Section 3.1.        BENEFIT.
Guarantor is the owner of an indirect interest in Borrower and has received, or
will receive, direct or indirect benefit from the making of this Guaranty with
respect to the Guaranteed Obligations.


 


Section 3.2.        FAMILIARITY
AND RELIANCE. Guarantor is familiar with, and has independently reviewed
books and records regarding, the financial condition of Borrower and is
familiar with the value of any and all collateral intended to be created as
security for the payment of the Note or Guaranteed Obligations; provided,
however, Guarantor is not relying on such financial condition or the collateral
as an inducement to enter into this Guaranty.


 


Section 3.3.        NO
REPRESENTATION BY LENDER. Neither Lender nor any other party has made any
representation, warranty or statement to Guarantor in order to induce Guarantor
to execute this Guaranty.


 


Section 3.4.        GUARANTOR’S
FINANCIAL CONDITION. As of the date hereof, and after giving effect to this
Guaranty and the contingent obligation evidenced hereby, Guarantor is, and will
be, solvent, and has and will have assets which, fairly valued, exceed its
obligations, liabilities (including contingent liabilities) and debts, and has
and will have property and assets sufficient to satisfy and repay its
obligations and liabilities.


 


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Section 3.5.        LEGALITY.
The execution, delivery and performance by Guarantor of this Guaranty and the
consummation of the transactions contemplated hereunder do not, and will not,
contravene or conflict with any law, statute or regulation whatsoever to which Guarantor
is subject or constitute a material default (or an event which with notice or
lapse of time or both would constitute a default) under, or result in the
material breach of, any indenture, mortgage, deed of trust, charge, lien, or
any contract, agreement or other instrument to which Guarantor is a party or by
which Guarantor is bound. This Guaranty is a legal and binding obligation of
Guarantor and is enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors’ rights.


 


Section 3.6.        SURVIVAL.
All representations and warranties made by Guarantor herein shall survive the
execution hereof.


 


Section 3.7.        REVIEW OF
DOCUMENTS. Guarantor has examined the Note and all of the Loan Documents.


 


Section 3.8.        LITIGATION.
As of the date hereof and except as otherwise disclosed to Lender, there are no
proceedings against Guarantor pending or, to Guarantor’s current, actual
knowledge, threatened before any court or administrative agency which, if
decided adversely to Guarantor, would materially adversely affect the financial
condition of Guarantor or the authority of Guarantor to enter into this
Guaranty or the validity or enforceability of this Guaranty.


 


Section 3.9.        TAX RETURNS.
Guarantor has filed all required federal, state and local tax returns (or any
extensions thereof, if applicable) and has paid all taxes as shown on such
returns as they have become due. No claims have been assessed and are unpaid
with respect to such taxes.


 


ARTICLE 4 

SUBORDINATION OF CERTAIN INDEBTEDNESS


 


Section 4.1.        SUBORDINATION
OF ALL GUARANTOR CLAIMS. As used herein, the term “Guarantor Claims” shall mean all debts and liabilities of Borrower to
Guarantor, whether such debts and liabilities now exist or are hereafter
incurred or arise, or whether the obligations of Borrower thereon are direct,
contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or liabilities be evidenced by a note,
contract, open account, or otherwise, and irrespective of the person or persons
in whose favor such debts or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may
hereafter be acquired by Guarantor. The Guarantor Claims shall include, without
limitation, all rights and claims of Guarantor against Borrower (arising as a
result of subrogation or otherwise) as a result of Guarantor’s payment of all
or a portion of the Guaranteed Obligations to the extent the provisions of Section
1.10 hereof are unenforceable. Any indebtedness of Borrower to Guarantor
now or hereafter existing (including, but not limited to, any rights to
subrogation Guarantor may have as a result of any payment by Guarantor under
this Guaranty), together with any interest thereon, shall be, and such
indebtedness is, hereby deferred, postponed and subordinated to the prior
payment in full of the Debt. Until payment in full of the Debt (and including
interest accruing on the Note after the


 


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commencement of a
proceeding by or against Borrower under the Bankruptcy Reform Act of 1978, as
amended, 11 U.S.C. Sections 101 et  seq., and the regulations
adopted and promulgated pursuant thereto (collectively, the “Bankruptcy Code”) which interest the parties agree shall remain a claim that is
prior and superior to any claim of Guarantor notwithstanding any contrary
practice, custom or ruling in cases under the Bankruptcy Code generally),
Guarantor agrees not to accept any payment or satisfaction of any kind of
indebtedness of Borrower to Guarantor and hereby assigns such indebtedness to
Lender, including the right to file proof of claim and to vote thereon in
connection with any such proceeding under the Bankruptcy Code, including the
right to vote on any plan of reorganization.


 


Section 4.2.        CLAIMS IN
BANKRUPTCY. In the event of receivership, bankruptcy, reorganization,
arrangement, debtor’s relief, or other insolvency proceedings involving
Guarantor as debtor, Lender shall have the right to prove its claim in any such
proceeding so as to establish its rights hereunder and receive directly from
the receiver, trustee or other court custodian dividends and payments which
would otherwise be payable upon Guarantor Claims. Guarantor hereby assigns such
dividends and payments to Lender. Should Lender receive, for application upon
the Guaranteed Obligations, any such dividend or payment which is otherwise
payable to Guarantor, and which, as between Borrower and Guarantor, shall
constitute a credit upon the Guarantor Claims, then upon payment to Lender in
full of the Guaranteed Obligations, Guarantor shall become subrogated to the
rights of Lender to the extent that such payments to Lender on the Guarantor
Claims have contributed toward the liquidation of the Guaranteed Obligations,
and such subrogation shall be with respect to that portion of the Guaranteed
Obligations which would have been unpaid if Lender had not received dividends
or payments upon the Guarantor Claims.


 


Section 4.3.        PAYMENTS
HELD IN TRUST. In the event that, notwithstanding anything to the contrary
in this Guaranty, Guarantor should receive any funds, payment, claim or
distribution which is prohibited by this Guaranty, Guarantor agrees to hold in
trust for Lender an amount equal to the amount of all funds, payments, claims
or distributions so received, and agrees that it shall have absolutely no
dominion over the amount of such funds, payments, claims or distributions so
received except to pay them promptly to Lender, and Guarantor covenants
promptly to pay the same to Lender.


 


Section 4.4.        LIENS
SUBORDINATE. Guarantor agrees that any liens, security interests, judgment
liens, charges or other encumbrances upon Borrower’s assets securing payment of
the Guarantor Claims shall be and remain inferior and subordinate to any liens,
security interests, judgment liens, charges or other encumbrances upon
Borrower’s assets securing payment of the Guaranteed Obligations, regardless of
whether such encumbrances in favor of Guarantor or Lender presently exist or
are hereafter created or attach. Without the prior written consent of Lender,
Guarantor shall not (i) exercise or enforce any creditor’s right it may have
against Borrower, or (ii) foreclose, repossess, sequester or otherwise take
steps or institute any action or proceedings (judicial or otherwise, including
without limitation the commencement of, or joinder in, any liquidation,
bankruptcy, rearrangement, debtor’s relief or insolvency proceeding) to enforce
any liens, mortgages, deeds of trust, security interest, collateral rights,
judgments or other encumbrances on assets of Borrower held by Guarantor.


 


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ARTICLE 5

FINANCIAL REPORTS


 


(a)        Guarantor shall keep
adequate books and records of account in accordance with methods reasonably
acceptable to Lender, consistently applied, and furnish to Lender:


 


(i)     an annual
balance sheet and income statement of Guarantor in the form required by Lender,
prepared and certified by Guarantor, within one hundred twenty (120) days after
the end of each calendar year of Guarantor;


 


(ii)    copies of
all federal tax returns (or extensions thereof, if applicable) filed by
Guarantor, within ninety (90) days after the filing thereof; and


 


(iii)   such
other financial statements as may, from time to time, be reasonably required by
Lender.


 


(b)       Lender and its
accountants shall have the right to examine the records, books, management and
other papers of any Guarantor which reflect upon its financial condition, at
any office regularly maintained by any Guarantor where the books and records
are located. Lender and its accountants shall have the right to make copies and
extracts from the foregoing records and other papers. In addition, Lender and
its accountants shall have the right to examine and audit the books and records
of any Guarantor pertaining to the income, expenses and operation of the
Property during reasonable business hours at any office of Guarantor where the
books and records are located.


 


ARTICLE 6

MISCELLANEOUS


 


Section 6.1.        WAIVER.
No failure to exercise, and no delay in exercising, on the part of Lender, any
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right. The rights of Lender hereunder shall be in
addition to all other rights provided by law. No modification or waiver of any
provision of this Guaranty, nor consent to departure therefrom, shall be
effective unless in writing and no such consent or waiver shall extend beyond
the particular case and purpose involved. No notice or demand given in any case
shall constitute a waiver of the right to take other action in the same, similar
or other instances without such notice or demand.


 


Section 6.2.        NOTICES.
All notices or other written communications hereunder shall be deemed to have
been properly given (i) upon delivery, if delivered in person or by facsimile
transmission with receipt acknowledged, (ii) one (1) Business Day (hereinafter
defined) after having been deposited for overnight delivery with any reputable
overnight courier service, or (iii) three (3) Business Days after having been
deposited in any post office or mail depository regularly maintained by the
U.S. Postal Service and sent by registered or certified mail, postage prepaid,
addressed as follows:


 


10

















 


	
  If to Guarantor:

  	
   

  	
  c/o NewQuest
  Properties

  8807 W. Sam Houston Parkway N., Suite 200

  Houston, Texas 77040

  Attention: Steven D. Alvis

  Facsimile No.: (281) 477-4399

  
	
   

  	
   

  	
   

  
	
  If to Lender:

  	
   

  	
  ARCap Servicing,
  Inc.

  5605 N. MacArthur Blvd., Suite 950

  Irving, Texas 75038

  Attention: Clyde Greenhouse Director of Administration

  Facsimile No.: (972) 580-3888

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Kelley Drye
  & Warren LLP

  200 Kimball Drive

  Parsippany, New Jersey 07054

  Attention: Paul A. Keenan, Esq.

  Facsimile No.: (973) 503-5950

  



 


or addressed as
such party may from time to time designate by written notice to the other
parties. For purposes of this Section 6.2, the term “Business Day” shall mean a day on which
commercial banks are not authorized or required by law to close in New York,
New York.


 


Any party by notice to the other parties may designate additional or
different addresses for subsequent notices or communications.


 


Section 6.3.        GOVERNING
LAW; JURISDICTION. This Guaranty shall be governed by and construed in
accordance with the laws of the State in which the real property encumbered by
the Security Instrument is located and the applicable laws of the United States
of America. Guarantor hereby irrevocably submits to the jurisdiction of any
court of competent jurisdiction located in the state in which the Property is
located in connection with any proceeding out of or relating to this Guaranty.


 


Section 6.4.        INVALID
PROVISIONS. If any provision of this Guaranty is held to be illegal,
invalid, or unenforceable under present or future laws effective during the
term of this Guaranty, such provision shall be fully severable and this
Guaranty shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Guaranty, and the
remaining provisions of this Guaranty shall remain in fall force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Guaranty, unless such continued effectiveness of this
Guaranty, as modified, would be contrary to the basic understandings and
intentions of the parties as expressed herein.


 


Section 6.5.        AMENDMENTS.
This Guaranty may be amended only by an instrument in writing executed by the
party or an authorized representative of the party against whom such amendment
is sought to be enforced.


 


Section 6.6.        PARTIES BOUND;
ASSIGNMENT. This Guaranty shall be binding upon and inure to the benefit of
the parties hereto and their respective successors, assigns and


 


11

















 


legal
representatives; provided, however, that Guarantor may not, without the prior
written consent of Lender, assign any of its rights, powers, duties or
obligations hereunder.


 


Section 6.7.        HEADINGS.
Section headings are for convenience of reference only and shall in no way
affect the interpretation of this Guaranty.


 


Section 6.8.        RECITALS.
The recital and introductory paragraphs hereof are a part hereof, form a basis for this Guaranty and
shall be considered prima  facie evidence of the facts and
documents referred to therein.


 


Section 6.9.        COUNTERPARTS.
To facilitate execution, this Guaranty may be executed in as many counterparts
as may be convenient or required. It shall not be necessary that the signature
or acknowledgment of, or on behalf of, each party, or that the signature of all
persons required to bind any party, or the acknowledgment of such party, appear
on each counterpart. All counterparts shall collectively constitute a single
instrument. It shall not be necessary in making proof of this Guaranty to
produce or account for more than a single counterpart containing the respective
signatures of, or on behalf of, and the respective acknowledgments of, each of
the parties hereto. Any signature or acknowledgment page to any counterpart may
be detached from such counterpart without impairing the legal effect of the
signatures or acknowledgments thereon and thereafter attached to another
counterpart identical thereto except having attached to it additional signature
or acknowledgment pages.


 


Section 6.10.      RIGHTS AND
REMEDIES. If Guarantor becomes liable for any indebtedness owing by
Borrower to Lender under the Loan, by endorsement or otherwise, 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 ever have against Guarantor. The exercise
by Lender of any right or remedy hereunder or under any other instrument, or at
law or in equity, shall not preclude the concurrent or subsequent exercise of
any other right or remedy.


 


Section 6.11.      ENTIRETY.
THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF GUARANTOR AND LENDER WITH
RESPECT TO GUARANTOR’S GUARANTY OF THE GUARANTEED OBLIGATIONS AND SUPERSEDES
ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY
IS INTENDED BY GUARANTOR AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE
TERMS OF THE GUARANTY, AND NO COURSE OF DEALING BETWEEN GUARANTOR AND LENDER,
NO COURSE OF PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC
EVIDENCE OF ANY NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY
ANY TERM OF THIS GUARANTY AGREEMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN
GUARANTOR AND LENDER.


 


Section 6.12.      WAIVER OF RIGHT TO TRIAL BY JURY. GUARANTOR
HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY
JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE


 


12

















 


EXTENT
THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS GUARANTY,
THE MORTGAGE, OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER
ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY
IS GIVEN KNOWINGLY AND VOLUNTARILY BY GUARANTOR, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY GUARANTOR.


 


[NO FURTHER TEXT ON THIS PAGE]


 


13

















 


This Guaranty is executed as of the day and year first above written.


 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ STEVEN D. ALVIS

  	
   

  
	
   

  	
  STEVEN D. ALVIS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ JAY K. SEARS

  	
   

  
	
   

  	
  JAY K. SEARS