Loan No.
006561
EXHIBIT
10.26
UNCONDITIONAL
GUARANTY
THIS GUARANTY
is made this 27th day of December, 2005, by AIMCO PROPERTIES, L.P.,
a Delaware limited partnership (“Guarantor”), to and
for the benefit of GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK, a
New York corporation (“Lender”).
BACKGROUND
COOPER’S
POINTE CPGF 22, L.P., a Delaware limited partnership
(“Borrower”), has applied to Lender for a loan (the
“Loan”) in the principal amount of Seven Million Seven
Hundred Thirty-five Thousand and 00/100 Dollars ($7,735,000.00).
The Loan will be evidenced by a Promissory Note (the
“Note”) in the amount of the Loan and will be secured
by, inter alia, a Mortgage, Assignment of Rents and Leases,
Security Agreement and Fixture Financing Statement (the
“Mortgage”) on real property located in Charleston
County, South Carolina (the “Property”). The
Mortgage and all other loan documents executed by Borrower in
connection with the Loan are referred to herein collectively as the
“Loan Documents.”
Lender’s
willingness to make the Loan is conditioned upon Guarantor’s
execution and delivery to Lender of this Guaranty.
NOW,
THEREFORE, in consideration of benefits to Guarantor from Borrower,
the receipt and sufficiency of which are hereby acknowledged by
Guarantor, and to induce Lender to make the Loan to Borrower,
Guarantor agrees as follows:
1.
Unconditional Guaranty of
Non-Recourse Exceptions .
Guarantor
unconditionally, absolutely and irrevocably guarantees the due and
punctual payment of, and shall be fully and personally liable to
Lender for, the items set forth in paragraphs 11(b) and 11(c),
inclusive, of the Note (the “Non-Recourse Exceptions”),
together with any fees and costs, including attorneys’ fees,
incurred in enforcing and collecting the Non-Recourse Exceptions.
The Non-Recourse Exceptions are as follows:
(a)
Any and all
claims, demands, damages, losses, liabilities, fines, penalties,
fees, liens, costs and expenses, including attorneys’ fees
suffered or incurred by Lender on account of or in connection with
the following:
(i)
waste to the
Property or any fraud or willful misrepresentation committed by
Borrower;
(ii)
any retention
of rental income or other income of the Property collected by
Borrower after a default has occurred under the Note and prior to
the cure (if any) of such default, to the extent that any such
retention is not applied to the operation of the Property (i.e.,
capital and operating expenses) and the retention of security
deposits or other deposits made by tenants which are not paid to
tenants when due or transferred to Lender or any other party
acquiring the Property at a foreclosure sale or by deed in lieu of
foreclosure;
(iii)
all property
taxes or assessments accrued prior to the Lender’s taking
title to the Property, to the extent Lender does not have adequate
funds that have been escrowed solely for such purpose to pay such
amounts;
(iv)
the removal or
failure to replace any personal property or fixtures encumbered by
the Mortgage;
(v)
the
misapplication of any proceeds under any insurance policies or
awards resulting from condemnation or the exercise of the power of
eminent domain or by reason of damage or destruction to any portion
of the Property or any building or buildings located
thereon;
(vi)
Borrower’s failure
to maintain hazard, liability or other insurance as required by the
Loan Documents; and
(vii)
the presence
of any Hazardous Substances (as defined in the Mortgage), including
asbestos, on the Property and the breach of any material covenant
or material warranty or any material misrepresentation by Borrower
under the Mortgage, the Environmental Indemnity Agreement executed
by Borrower and Guarantor of even date (the “Environmental
Indemnity”), or any of the other Loan Documents with respect
to Hazardous Substances, and Borrower’s failure to perform
any obligations under the Environmental Indemnity. Borrower
shall have no liability for Hazardous Substances which are
introduced to the Property subsequent to: (a) the date of a sale of
the Property and assumption of the Loan, but only if the
transferring Borrower and Guarantor are released from liability in
accordance with Section 4.2(g) of the Mortgage, or (b) the date
Lender or a third party acquires title to the Property through
foreclosure or a deed in lieu of foreclosure (either such dates
being referred to as the “Transfer Date”); provided,
however, Borrower and Guarantor shall bear the burden of proof that
the introduction and initial release of any such Hazardous
Substance (x) occurred subsequent to the Transfer Date, (y) did not
occur as a result of any action of Borrower or its agents, and (z)
did not occur as a result of continuing migration or release of any
Hazardous Substance introduced prior to the Transfer Date in, on,
under or near the Property.
(b)
The full
amount due under the Note, including accrued interest and all other
amounts due with respect to the Mortgage and other Loan Documents,
and for the promises contained therein, upon the occurrence of one
or more of the following:
(i)
there is a
“Transfer” as defined in Section 4.1 of the
Mortgage, except as may be otherwise permitted in the Mortgage;
or
(ii)
subordinate
financing is placed against the Property, except as may be
otherwise permitted in the Mortgage.
2.
Acknowledgments,
Representations, Warranties and Certifications
.
(a)
Guarantor
acknowledges and agrees that:
(i)
Guarantor
either has reviewed, or has had an opportunity to review, the Loan
Documents, and is otherwise fully familiar with the terms of the
Loan;
(ii)
This Guaranty
constitutes an obligation to Lender which is separate and distinct
from the obligation of Borrower to Lender under the Loan Documents;
and
(iii)
Guarantor is
signing this Guaranty as an inducement to Lender to make the Loan,
and further acknowledges that Lender would not make the Loan
without this Guaranty.
(b)
Guarantor
represents and warrants to Lender that Guarantor is either
financially interested in Borrower or will receive other benefits
from Borrower as a result of this Guaranty.
(c)
Guarantor
hereby certifies to Lender, as a material inducement to completing
the funding of the Loan to Borrower, that there has not
been:
(i)
Any material
adverse change with respect to the security, as defined in the Loan
Application delivered to and accepted by Lender in connection with
the Loan, or in the finances and business operations of the
Guarantor between the date of the financial statements delivered to
Lender and the date hereof; or
(ii)
Any legal
proceedings commenced by or against Guarantor looking to the
reorganization of Guarantor or any arrangement, composition or
readjustment of the Guarantor’s indebtedness or any
liquidation or dissolution of the Guarantor or similar relief under
the Federal Bankruptcy Act as now in force, or under any other
federal or state statute of similar import.
3.
Waivers By
Guarantor and Rights of Lender . Guarantor agrees
that Lender may deal exclusively with Borrower in all matters
relating to the Loan without notice to or the approval of
Guarantor. It is intended that Guarantor shall remain
unconditionally, absolutely and irrevocably liable hereunder
regardless of any act or omission which might otherwise directly or
indirectly result, by operation of law or otherwise, in the
discharge or release in whole or in part of Borrower, Guarantor or
any other person, or the discharge, release or impairment of any
collateral (the “Collateral”) now or hereafter held as
security for any of the obligations under the Loan Documents or
this Guaranty. Without limiting the generality of the
foregoing, Guarantor hereby waives the following and agrees that
Lender may do or fail to do any of the following one or more times,
without notice to or the approval of Guarantor, all without
diminishing, altering or otherwise affecting the unconditional,
absolute and irrevocable liability of Guarantor
hereunder:
(a)
Guarantor
waives notice of Lender’s acceptance of this
Guaranty;
(b)
Guarantor
waives notice of Lender’s advances of Loan funds, extension
of credit to Borrower and any payment
