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Exhibit 10.133
Carveout Guarantee and Indemnity
Agreement
This Carveout Guarantee and Indemnity Agreement (this
“Agreement”) is made as of the 21st day of September,
2007 (the “Effective Date”), by AIMCO PROPERTIES, L.P.,
a Delaware Limited Partnership (the “Carveout
Obligor”), in favor of TRANSAMERICA OCCIDENTAL LIFE INSURANCE
COMPANY, an Iowa corporation, and its successors and assigns (the
“Lender”).
1.
RECITALS
A.
Under the terms of a certain Secured Real Estate Credit Facility
Agreement dated September 11, 2007 (the “Facility
Agreement”), AEGON USA Realty Advisors, Inc.
(“AEGON”), as agent for affiliated lenders agreed to
fund a series of loans to affiliates of the Carveout Obligor.
B.
Under the terms of the Facility Agreement and a certain Second
Revised Loan Application/Commitment dated September 12, 2007 (the
“Commitment”), AEGON, as agent for the Lender, agreed
to fund a loan in the principal amount of $3,709,744 (the
“Loan”).
C.
The Lender has funded the Loan in the principal amount of
$3,709,744 in accordance with the Commitment and the Facility
Agreement, and to evidence the Loan, CCP IV Associates, Ltd., a
Texas limited partnership (the “Borrower”) has made and
delivered to Lender a certain Secured Promissory Note dated as of
the Effective Date, in the original principal amount of $3,709,744
(“the Note”) and certain additional documents (together
with the Note, the “Loan Documents”) in accordance with
the terms of the Commitment.
D.
The Note and certain of the Loan Documents include an
“exculpation clause” in which the Lender agrees that it
shall not seek to collect the Loan except through recourse to
certain Property (as defined below), subject, however, to certain
exceptions (the “Carveouts”).
E.
The Deed of Trust, Security Agreement and Fixture Filing securing
the Loan (the “Deed of Trust”) provides that the
exculpation clause shall be void without notice if the Borrower
voluntarily transfers or encumbers the Property in violation of the
“due on transfer or encumbrance” section of the Deed of
Trust, or files a voluntary bankruptcy petition under certain
conditions.
F.
The Facility Agreement and the Commitment require, as a condition
to the funding of the Loan, that the Carveout Obligor (a) guarantee
that portion of the Indebtedness that arises because the Lender has
advanced funds or incurred expenses in respect of the Carveouts
while the Loan has remained outstanding, (b) guarantee the entire
Indebtedness, if the exculpation clause set forth in the Note has
become void, and (c) indemnify the Lender and hold it harmless, to
the extent of the Lender’s actual damages and losses, with
respect to any circumstance or event comprising a Carveout.
2.
AGREEMENT
NOW THEREFORE, in consideration of the premises, in order to induce
the Lender to disburse the proceeds of the Loan, and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Carveout Obligor hereby agrees as
follows:
3.
DEFINITIONS
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Deed of Trust. The following
capitalized terms shall have the meanings set forth below:
“ Bankruptcy Code ” means 11 U.S.C.
§§101-1330 or any successor statute.
“ Business Day ” means any day when state and
federal banks are open for business in Cedar Rapids, Iowa.
“ Carveouts ” means the following matters:
(i)
fraud or material written misrepresentation;
(ii)
waste of the Property (which shall include damage, destruction or
disrepair of the Real Property caused by a willful act or grossly
negligent omission of the Borrower, but shall exclude ordinary wear
and tear in the absence of gross negligence);
(iii)
misappropriation of tenant security deposits (including proceeds of
tenant letters of credit), Insurance Proceeds or Condemnation
Proceeds;
(iv)
failure to pay property taxes, assessments or other lienable
Impositions;
(v)
failure to pay to the Lender all Rents, income and profits
(including any rent collected more than one month in advance, or
any rent for the last month of the lease term, under any Lease in
force at the time of Default), net of reasonable and customary
operating expenses, received in respect of a period when the Loan
is in Default;
(vi)
removal from the Real Property of Fixtures or Personal Property,
unless replaced in a commercially reasonable manner;
(vii)
the out-of-pocket expenses of enforcing the Loan Documents
following Default, not including expenses incurred after the
Borrower has agreed in writing to transfer the Real Property to the
Lender by the Lender’s choice of either an uncontested
foreclosure or delivery of a deed in lieu of foreclosure;
(viii)
terminating or amending a Lease in violation of the Loan Documents;
and
(ix)
any liability of the Borrower under the Environmental Indemnity
Agreement.
“ Carveout Obligation ” means any obligation
under this Agreement.
“ Carveout Obligor Net Worth Requirement ”
equals $500,000,000 (not including the value of the Carveout
Obligor’s equity in the Real Property).
“ Claim ” means any action, suit, proceeding,
demand, assessment, adjustment, penalty or other assertion of
liability, if it arises, and only to the extent that it arises, as
a result of any Carveout.
“ Environmental Indemnity Agreement ” means the
environmental indemnity agreement executed by the Borrower and the
Carveout Obligor in connection with the Loan, together with all
substitutions, modifications, and amendments.
“ Indebtedness ” means all sums that are owed or
become due pursuant to the terms of the Loan Documents, together
with all substitutions, modifications, and amendments, which sums
include any amounts advanced by the Lender to cure defaults or to
pay attorneys’ fees and expenses, receivership costs, fees
and costs of the Trustee and other collection costs. Such costs and
fees shall include those that relate to issues particular to any
given type of proceeding and all appraisal fees and expert witness
fees pertaining to the establishment of the fair value of the
Property, whether or not the Carveout Obligor or any court requires
that such value be ascertained.
“ Legal Control ” means the power, either
directly or indirectly, to exercise the authority of the owner of
the Real Property, either as or through the majority shareholder of
the common stock of a corporation, the sole or managing general
partner of a limited partnership, the managing general partner of a
general partnership, or the sole manager of a limited liability
company, provided the entity exercising such authority cannot be
divested of such authority without its consent, either directly or
indirectly, except for cause.
“ Notice ” means a notice given in accordance
with Subsection 14.3 below.
“ Property ” means the Real Property and any
other property now or hereafter subjected to any lien or security
interest created by any of the Loan Documents.
4.
GUARANTEE OF INDEBTEDNESS ARISING FROM CARVEOUTS
In consideration of the Lender agreeing to make the Loan, and upon
the terms and provisions hereof, the Carveout Obligor hereby
irrevocably, absolutely and unconditionally guarantees the full and
prompt payment to the Lender of the Indebtedness, to the extent,
and only to the extent, of the amount of the Indebtedness which has
arisen because the Lender has advanced funds or incurred expenses
in respect of any of the Carveouts.
The Carveout Obligor acknowledges that the Loan is made solely for
business purposes and that the Carveout Obligor will be liable for
a deficiency judgment after any trustee's sale or deed in lieu of
trustee's sale that the Lender elects to prosecute or accept, to
the extent that Carveout Obligations have remained unsatisfied. Any
such deficiency or any judgment therefor shall bear interest at the
default rate specified in the Note from and after the date of such
trustee's sale or the Lender’s or its affiliate’s
acceptance of a deed in lieu thereof until and including the date
the deficiency or judgment is paid.
5.
INDEMNITY AND HOLD HARMLESS
The Carveout Obligor agrees to indemnify the Lender and hold it
harmless, to the extent of the Lender’s actual damages and
losses, with respect to any circumstance or event comprising a
Carveout. This obligation includes the protection of the Lender
from, and the defense of the Lender against, all Claims, and to the
indemnification of the Lender from and against all out-of-pocket
costs and expenses sustained by the Lender in enforcing this
Agreement, including reasonable attorneys’ fees and
expenses.
6.
CONDITIONAL GUARANTEE OF ENTIRE INDEBTEDNESS
The Carveout Obligor hereby irrevocably, absolutely and
unconditionally guarantees the full and prompt payment to Lender of
the Indebtedness if the Borrower (a) voluntarily transfers or
creates any voluntary lien on the Property in violation of the Loan
Documents, or (b) files a voluntary petition for reorganization
under the Bankruptcy Code and has not offered, prior to the filing,
to enter into the Lender’s choice of either an agreement to
permit an uncontested foreclosure, or an agreement to deliver a
deed in lieu of foreclosure within sixty days of the Lender’s
acceptance of the offer. Following the Lender’s acceptance of
such an offer, default by the Borrower under such an agreement
shall trigger personal liability for the entire Indebtedness. No
such offer shall be conditioned on any payment by the Lender, on
the release of any Obligor from any Carveout Obligation, or on any
other concession.
The foregoing guarantee is not a guarantee of collection, but
rather is an irrevocable, absolute and unconditional, continuing
guarantee of payment and performance. In this regard, the Carveout
Obligor hereby acknowledges that the guarantee set forth in this
Agreement may not be revoked as to any present or future advances
to or existing or additional liability incurred by the Borrower
under the terms of the Loan Documents. The guarantee set forth in
this Section 6 shall terminate when the Indebtedness has been
satisfied in full.
7.
REPRESENTATIONS AND WARRANTIES
The Carveout Obligor hereby represents and warrants to the Lender
as follows:
(a)
This Agreement has been duly executed and delivered.
(b)
To the best of the Carveout Obligor’s knowledge, the
execution and performance of this Agreement and all guaranties and
covenants herein will not result in any breach of, or constitute a
default under, any contract, guarantee, document or other
instrument to which the Carveout Obligor is a party or by which the
Carveout Obligor may be bound or affected, and do not and will not
violate or contravene any law to which the Carveout Obligor is
subject; nor do any such other instruments impose or contemplate
any obligations which are or will be inconsistent with this
Agreement.
(c)
To the best of the Carveout Obligor’s knowledge, no approval
by, authorization of, or filing with any federal, state or
municipal or other governmental commission, board or agency or
other governmental authority is necessary in connection with the
authorization, execution and delivery of this Agreement.
(d
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