Exhibit 10.85
Old FHLMC Loan No.
002652560
New FHLMC Loan No.
504180312
Tamarac Village
AMENDED AND RESTATED GUARANTY (RECAST
TRANSACTION)
MULTISTATE
(for use in all Property jurisdictions except
California)
REVISION DATE 05/06/2005
THIS AMENDED AND RESTATED GUARANTY is made effective as of the 5th
day of October, 2009, by AIMCO PROPERTIES, L.P., a Delaware limited
partnership ("Guarantor"),for the benefit ofthe FEDERAL HOME LOAN
MORTGAGE CORPORATION ("Lender").
RECITALS
A.
Consolidated Capital
Institutional Properties/3, a California limited partnership,
predecessor in interest to Consolidated Capital Institutional
Properties/3, LP, a Delaware limited partnership (the “
Original Borrower ”), is the maker of a Multifamily
Note (the " Note
"), dated as of June 27, 2001, in the original principal amount of
Twenty-One Million and 00/100 Dollars ($ 21,000,000.00
), evidencing a loan (the "
Loan ") to Original Borrower in such amount from GMAC
Commercial Mortgage Corporation, a California corporation (the "
Original Lender ").
B.
The Note is secured by that
certain Multifamily Deed of Trust, Assignment of Rents, and
SecurityAgreement dated as of
June 27, 2001, from Original Borrower, as grantor, to Original
Lender, as grantee, recorded in the Land Records of Denver County
(the “ Land Records ”) at Reception No.
2001107080 (the " Instrument "). The Instrument
encumbers, among other things, Original Borrower's interest in the
land described in Exhibit A to the Instrument.
C.
Pursuant to a Limited Guaranty
dated as of June 27,
2001,AIMCO Properties, L.P., a Delaware limited partnership,
guaranteed some or all of Original Borrower’s obligations
under the terms of the Note and the Instrument.
D.
Original Lender (i) endorsed
the Note to Lender and (ii) assigned the Instrument to Lender by
Assignment of Security Instrument dated as of June 27, 2001and recorded in the Land
Records of Denver County at Reception No. 2001123386.
E.
Pursuant to an Assumption
Agreement of even date herewith, Tamarac Village, LLC, a Delaware
limited liability company (the “ Borrower ”)
assumed all of Original Borrower’s rights, obligations and
liabilities created or arising under the Note and
Instrument.
F.
Borrower has confirmed to
Lender that Borrower has no defenses or offsets of any kind against
any of the indebtedness due underthe Note.
G.
By Amended and Restated
Multifamily Note and Amended and Restated Multifamily Deed of
Trust, Assignment of Rents and Security Agreement dated effective
as of the date of this Amended and Restated Guaranty, Borrower and
Lender have amended and restated the Note and the Instrument so as
to, among other things, (i) reflect a current aggregate unpaid
principal balance of Fifteen Million Eight Hundred Three Thousand
Six Hundred Thirteen and 00/100 Dollars ($15,803,613.00), and (ii)
amend the terms of payment. Borrower and Lender now also
desire to amend and restate the Guaranty as provided
below.
NOW, THEREFORE, in consideration of Lender’s agreement to
modify the Note, the Instrument, and other good and valuable
consideration, the receipt and sufficiency of which are
acknowledged, the parties agree that the Guaranty is amended and
restated in its entirety in the form attached hereto and made a
part hereof.
FHLMC
Loan No. 504180312
Tamarac Village
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 October 5, 2009, 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.
Tamarac
Village, LLC, a Delaware limited liability company (the "
Borrower
") has
requested that Lender recast a loan to Borrower in the amount of
$15,803.613.00 (the " Loan ").
The Loan is evidenced by an Amended and Restated Multifamily Note
from Borrower to Lender dated effective as of the effective date of
this Guaranty (the " Note ").
The Note is secured by an Amended and Restated 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 recasting the Loan to Borrower, Lender requires that
the Guarantor execute this Guaranty.
NOW, THEREFORE, in order to induce Lender to recast 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 proce