EXHIBIT 10.7
FHLMC Loan
No. 504110004
Conifer Crossing
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
August 5, 2008, by the undersigned person(s) (the “
Guarantor ” jointly and severally if more than one),
for the benefit of HOLLIDAY FENOGLIO FOWLER, L.P. , a Texas
limited partnership (the “ Lender ”).
RECITALS
A. FPA/PRIP Conifer, LLC, a Delaware
limited liability company (the “ Borrower ”) has
requested that Lender make a loan to Borrower in the amount of
$28,700,000.00 (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.
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(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.
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(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;
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