FHLMC Loan
No. 504133543
Canyon Ridge
Apartments
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
September 15, 2008, 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 Canyon
Ridge, LLC, a Delaware limited liability company (the “
Borrower ”) has requested that Lender make a loan to
Borrower in the amount of $24,000,000.00 (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:
|
|
(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 t
