Exhibit 10.12
Freddie Mac Loan Numbers:
Old Loan #002649160
New Loan #504180193
Sun RiverVillageApartments
AMENDED AND RESTATED GUARANTY
MULTISTATE
(RECAST TRANSACTION)
(for use in all Property jurisdictions except
California)
REVISION DATE 05/06/2005
This Amended and Restated Guaranty (Recast Transaction) ("
Guaranty ") is entered into to be effective as of October 2,
2009, 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. Borrower is the maker
of a Multifamily Note (the “ Note ”), dated May
23, 2001 in the original amount of Ten Million and 00/100 Dollars
($10,000,000.00) evidencing a loan (the “ Loan
”) to Borrower in such amount from LEND LEASE MORTGAGE
CAPITAL, L.P. , a Texas limited partnership (the “
Original Lender ”).
B. The Note is
secured by that certain Multifamily Deed of Trust, Assignment of
Rents and Security Agreement, dated May 23, 2001, from Borrower, as
grantor, to Original Lender, a beneficiary, recorded in the Office
of the Maricopa County Recorder, Arizona (the “ Land
Records ”) as Instrument No. 2001-0438719 (the “
Instrument ”). The Instrument encumbers, among
other things, Borrower’s interest in the land described in
Exhibit A to the Instrument and to the Amended and Restated
Instrument.
C. Pursuant to a Limited
Guaranty dated May 23, 2001, AIMCO Properties, L.P. , a
Delaware limited partnership, 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 May 23, 2001 and
recorded in the Land Records as Instrument No. 2001-0438722.
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 dated effective as of the date of this
Amended and Restated Instrument, Borrower and Lender have amended
and restated the Note so as to, among other things, (i) reflect an
aggregate current unpaid balance of Seven Million Four Hundred
Fifty-Two Thousand Three Hundred Eighty-Three and 00/100 Dollars
($7,452,383.00), and (ii) amend the terms of payment.
Borrower and Lender now also desire to amend and restate the
Instrument 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.
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Freddie Mac Loan Numbers:
Old Loan #002649160
New Loan # 504180193
Sun RiverVillageApartments
GUARANTY
MULTISTATE
(for use in all Property jurisdictions except
California)
REVISION DATE 05/06/05
This Guaranty (" Guaranty ") is entered into to be effective
as of October 2, 2009, by the undersigned person(s) (the "
Guarantor " jointly and severally if more than one), for the
benefit of FEDERAL HOME LOAN MORTGAGE CORPORATION ("
Lender ").
RECITALS
A. CENTURY SUN RIVER,
LIMITED PARTNERSHIP, an Arizona limited partnership (the "
Borrower ") has requested that Lender make a loan to
Borrower in the amount of $7,452,383.00 (the " Loan
"). The Loan will be evidenced by a Multifamily Note from
Borrower to Lender dated effective as of the effective date of this
Guaranty (the " Note "). The Note will be secured by a
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 making the Loan to Borrower,
Lender requires that the Guarantor execute this Guaranty.
NOW, THEREFORE, in order to induce Lender to make 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, t he 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 is a partnership,
any general partner of Borrower;
(e) any right to object to the timing, manner or conduct of
Lender's enforcement of its rights under any of the Loan Documents;
and
(f) any right to revok
