Exhibit 10.82
FHLMC Loan No. 504180320
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 make a supplemental loan to Borrower in the
amount of $2,600,000.00 (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

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