Exhibit 10.13
Old FHLMC Numbers: 002741148
New FHLMC Number:
948698128
Lakeside Apartments
(Form of)
AMENDED AND RESTATED
GUARANTY
(Recast
Transaction)
THIS AMENDED AND RESTATED GUARANTY is
made effective as of the 30th day of March, 2007, by AIMCO
PROPERTIES, L.P. , a Delaware limited partnership ("
Guarantor "), for the benefit of the FEDERAL HOME LOAN
MORTGAGE CORPORATION (" Lender ").
RECITALS
A.
National Property Investors III, a
California limited partnership (" Borrower ") is the maker
of a Multifamily Note (the " Note "), dated as of December
13, 2001, in the original principal amount of Twenty-Four Million
Five Hundred Thousand and 00/100 Dollars ($24,500,000.00),
evidencing a loan to Borrower in such amount from GMAC Commercial
Mortgage Corporation, a California corporation (the " Original
Lender ").
B.
The Note is secured by that certain
Multifamily Mortgage, Assignment of Rents, and Security Agreement
dated as of December 13, 2001, from Borrower, as mortgagor, to
Original Lender, as mortgagee, recorded in the land records of
DuPage County, Illinois (the “ Land Records ”)
as Document Number R2001-278890 (the " Instrument ").
The Instrument encumbers, among other things, Borrower's
interest in the land described in Exhibit A to the
Instrument.
C.
Pursuant to (i) a Limited Guaranty dated
as of December 13, 2001 (the " Guaranty "), Guarantor
guaranteed some or all of Borrower’s obligations under the
terms of the Note and the Instrument.
D.
Original Lender (i) endorsed the Note to
Lender and (ii) assigned the Instrument to Lender by Assignment of
Security Instrument dated as of December 13, 2001 and recorded in
the Land Records as Document Number R2001-278892.
E.
Borrower has confirmed to Lender that
Borrower has no defenses or offsets of any kind against any of the
indebtedness due under the Note.
F.
By Amended and Restated Multifamily Note
and Amended and Restated Multifamily Mortgage, Assignment of Rents
and Security Agreement dated effective as of the date of this
Amended and Restated Guaranty, Borrower and Lender have amended and
restated the Note, the Instrument so as to, among other things, (i)
reflect a current aggregate unpaid principal balance of Twenty
Million Nine Hundred Sixty-One Thousand Eight Hundred Thirty and
00/100 Dollars ($20,961,830.00) and (ii) amend the terms of
payment. Borrower and Lender now also desire to amend and
restate the Guaranty as provided below.
NOW, THEREFORE, in consideration of
Lender’s agreement to modify the Note, the Instrument, and
other good and valuable consideration, the receipt and sufficiency
of which are acknowledged, the parties agree that the Guaranty is
amended and restated in its entirety in the form attached hereto
and made a part hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK]
FHLMC Number: 948698128
GUARANTY
MULTISTATE
(for use in all Property jurisdictions
except California)
REVISION DATE
05/06/2005
This Guaranty (" Guaranty ") is
entered into to be effective as of March 30, 2007, by the
undersigned person(s) (the " Guarantor " jointly and
severally if more than one), for the benefit of the FEDERAL HOME
LOAN MORTGAGE CORPORATION (the " Lender ").
RECITALS
A.
National Property Investors III, a
California limited partnership (the " Borrower ") has
requested that Lender recast a loan to Borrower in the amount of
$20,961,830.00 (the " Loan "). The Loan is evidenced
by an Amended and Restated Multifamily Note from Borrower to Lender
dated effective as of the effective date of this Guaranty (the "
Note "). The Note is secured by an Amended and
Restated Multifamily Mortgage, Deed of Trust, or Deed to Secure
Debt dated effective as of the effective date of the Note (the "
Security Instrument "), encumbering the Mortgaged Property
described in the Security Instrument.
B.
As a condition to recasting the Loan to
Borrower, Lender requires that the Guarantor execute this
Guaranty.
NOW, THEREFORE, in order to induce Lender
to recast the Loan to Borrower, and in consideration thereof,
Guarantor agrees as follows:
1.
Defined Terms.
" Indebtedness, " " Loan
Documents " and " Property Jurisdiction " and
other capitalized terms used but not defined in this Guaranty shall
have the meanings assigned to them in the Security
Instrument.
2.
Scope of Guaranty.
(a)
Guarantor hereby absolutely,
unconditionally and irrevocably guarantees to Lender:
(i)
the full and prompt payment when due,
whether at the Maturity Date or earlier, by reason of acceleration
or otherwise, and at all times thereafter, of each of the
following:
(A)
a portion of the Indebtedness equal to
zero percent (0%) of the original principal balance of the Note
(the " Base Guaranty "); and
(B)
in addition to the Base Guaranty, all
other amounts for which Borrower is personally liable under
Sections 9(c), 9(d) and 9(f) of the Note; and
(C)
all costs and expenses, including
reasonable Attorneys' Fees and Costs incurred by Lender in
enforcing its rights under this Guaranty; and
(ii)
the full and prompt payment and
performance when due of all of Borrower’s obligations under
Section 18 of the Security Instrument.
(b)
If the Base Guaranty stated in
Section 2(a)(i)(A) is 100 percent of the original principal
balance of the Note, then (i) the Base Guaranty shall mean and
include the full and complete guaranty of payment of the entire
Indebtedness and the performance of all Borrower’s
obligations under the Loan Documents; and (ii) for so long as
the Base Guaranty remains in effect (there being no limit to the
duration of the Base Guaranty unless otherwise expressly provided
in this Guaranty), the obligations guaranteed pursuant to
Sections 2(a)(i)(B), 2(a)(i)(C) and Section 3 shall be
part of, and not in addition to or in limitation of, the Base
Guaranty.
If the Base Guaranty stated in
Section 2(a)(i)(A) is less than 100 percent of the original
principal balance of the Note, then this Section 2(b) shall be
completely inapplicable and shall be treated as if not a part of
this Guaranty.
(c)
If Guarantor is not liable for the entire
Indebtedness, then all payments made by Borrower with respect to
the Indebtedness and all amounts received by Lender from the
enforcement of its rights under the Security Instrument and the
other Loan Documents (except this Guaranty) shall be applied first
to the portion of the Indebtedness for which neither Borrower nor
Guarantor has personal liability.
3.
Additional Guaranty Relating to
Bankruptcy.
(a)
Notwithstanding any limitation on
liability provided for elsewhere in this Guaranty, Guarantor hereby
absolutely, unconditionally and irrevocably guarantees to Lender
the full and prompt payment when due, whether at the Maturity Date
or earlier, by reason of acceleration or otherwise, and at all
times thereafter, the entire Indebtedness, in the event
that:
(i)
Borrower voluntarily files for bankruptcy
protection under the United States Bankruptcy Code; or
(ii)
Borrower voluntarily becomes subject to
any reorganization, receivership, insolvency proceeding, or other
similar proceeding pursuant to any other federal or state law
affecting debtor and creditor rights; or
(iii)
an order of relief is entered against
Borrower pursuant to the United States Bankruptcy Code or other
federal or state law affecting debtor and creditor rights in any
involuntary bankruptcy proceeding initiated or joined in by a "
Related Party ."
(b)
For purposes of this Section, the term
"Related Party" means:
(i)
Borrower or Guarantor; and
(ii)
any person or entity that holds, directly
or indirectly, any ownership interest in or right to manage
Borrower or Guarantor, including without limitation, any
shareholder, member or partner of Borrower or Guarantor;
and
(iii)
any person or entity in which any
ownership interest (direct or indirect) or right to manage is held
by Borrower, Guarantor or any partner, shareholder or member of, or
any other person or entity holding an interest in, Borrower or
Guarantor; and
(iv)
any other creditor of Borrower that is
related by blood, marriage or adoption to Borrower, Guarantor or
any partner, shareholder or member of, or any other person or
entity holding an interest in, Borrower or Guarantor.
(c)
If Borrower, Guarantor or any Related
Party has solicited creditors to initiate or participate in any
proceeding referred to in this Section, regardless of whether any
of the creditors solicited actually initiates or participates in
the proceeding, then such proceeding shall be considered as having
been initiated by a Related Party.
4.
Guarantor's Obligations Survive
Foreclosure. The
obligations of Guarantor under this Guaranty shall survive any
foreclosure proceeding, any foreclosure sale, any delivery of any
deed in lieu of foreclosure, and any release of record of the
Security Instrument, and, in addition, the obligations of Guarantor
relating to Borrower's obligations under Section 18 of the
Security Instrument shall survive any repayment or discharge of the
Indebtedness. Notwithstanding the foregoing, if Lender has
never been a mortgagee-in-possession of or held title to the
Mortgaged Property, Guarantor shall have no obligation under this
Guaranty relating to Borrower's obligations under Section 18
of the Security Instrument after the date of the release of record
of the lien of the Security Instrument as a result of the payment
in full of the Indebtedness on the Maturity Date or by voluntary
prepayment in full.
5.
Guaranty of Payment and Performance.
Guarantor’s
obligations under this Guaranty constitute an unconditional
guaranty of payment and performance and not merely a guaranty of
collection.
6.
No Demand by Lender Necessary; Waivers
by Guarantor. The
obligations of Guarantor under this Guaranty shall be performed
without demand by Lender and shall be unconditional regardless of
the genuineness, validity, regularity or enforceability of the
Note, the Security Instrument, or any other Loan Document, and
without regard to any other circumstance which might otherwise
constitute a legal or equitable discharge of a surety, a guarantor,
a borrower or a mortgagor. Guarantor hereby waives, to the
fullest extent permitted by applicable law:
(a)
the benefit of all principles or
provisions of law, statutory or otherwise, which are or might be in
conflict with the terms of this Guaranty and agrees that
Guarantor's obligations shall not be affected by any circumstances,
whether or not referred to in this Guaranty, which might otherwise
constitute a legal or equitable discharge of a surety, a guarantor,
a borrower or a mortgagor;
(b)
the benefits of any right of discharge
under any and all statutes or other laws relating to a guarantor, a
surety, a borrower or a mortgagor, and any other rights of a
surety, a guarantor, a borrower or a mortgagor under such statutes
or laws;
(c)
diligence in collecting the Indebtedness,
presentment, demand for payment, protest, all notices with respect
to the Note and this Guaranty which may be required by statute,
rule of law or otherwise to preserve Lender's rights against
Guarantor under this Guaranty, including, but not limited to,
notice of acceptance, notice of any amendment of the Loan
Documents, notice of the occurrence of any default or Event of
Default, notice of intent to accelerate, notice of acceleration,
notice of dishonor, notice of foreclosure, notice of protest, and
notice of the incurring by Borrower of any obligation or
indebtedness;
(d)
all rights to cause a marshalling of the
Borrower's assets or to require Lender to:
(i)
proceed against Borrower or any other
guarantor of Borrower’s payment or performance under the Loan
Documents (an " Other Guarantor ");
(ii)
proceed against any general partner of
Borrower or any Other Guarantor if Borrower or any Other Guarantor
is a partnership;
(iii)
proceed against or exhaust any collateral
held by Lender to secure the repayment of the Indebtedness;
or
(iv)
pursue any other remedy it may now or
hereafter have against Borrower, or, if Borrower
