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FHLMC Loan No. 487791355
The Heights at Olde
Towne
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 December 21, 2007, by the undersigned
person(s) (the “ Guarantor ” jointly and
severally if more than one), for the benefit of CAPMARK BANK
, a Utah industrial bank (the “ Lender ”).
RECITALS
A. G&E Apartment REIT The Heights at Olde Towne, LLC, a
Delaware limited liability company (the “ Borrower
”) has requested that Lender make a loan to Borrower in the
amount of $10,475,000.00 (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:
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(i) |
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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: |
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(A) |
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a portion of the Indebtedness equal to zero percent (0%) of the
original principal balance of the Note (the “ Base
Guaranty ”); and |
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(B) |
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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 |
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(C) |
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all costs and expenses, including reasonable Attorneys’
Fees and Costs incurred by Lender in enforcing its rights under
this Guaranty; and |
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(ii) |
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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:
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(i) |
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Borrower voluntarily files for bankruptcy protection under the
United States Bankruptcy Code; or |
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(ii) |
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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 |
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(iii) |
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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
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(b) For purposes of this Section, the term “Related
Party” means:
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(i) |
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Borrower or Guarantor; and |
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(ii) |
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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 |
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(iii) |
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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 |
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(iv) |
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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
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