EXHIBIT 10.13
FHLMC Loan
No. 968717616
Lofton Place
GUARANTY-CME
MULTISTATE
(for use in all Property
jurisdictions except California)
REVISION DATE
8-14-2009
This Guaranty (“
Guaranty ”) is entered into to be effective as of
October 1, 2009, by the undersigned Person(s) (the “
Guarantor ” jointly and severally if more than one),
for the benefit of CWCAPITAL LLC , a Massachusetts limited
liability company (the “ Lender ”).
RECITALS
A. Evergreen
at Lofton Place, LLC, a Delaware limited liability company (the
“ Borrower ”) has requested that Lender make a
loan to Borrower in the amount of $12,000,000.00 (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:
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(i)
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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:
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(A)
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a portion of
the Indebtedness equal to zero percent (0%) of the original
principal balance of the Note (the “ Base Guaranty
”); and
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(B)
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in addition to
the Base Guaranty, all other amounts for which Borrower is
personally liable under Sections 9(c), 9(d) and 9(f)(provided,
however, that Guarantor shall have no liability for failure of the
Borrower or SPE
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Equity Owner to comply with
(I) Section 33(b)(xviii) of the Security Instrument as to
payment of trade payables within 60 days of the date incurred) of
the Note; and
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(C)
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all costs and
expenses, including reasonable Attorneys’ Fees and Costs
incurred by Lender in enforcing its rights under this Guaranty;
and
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(ii)
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the full and
prompt payment and performance when due of all of Borrower’s
obligations under Section 18 of the Security
Instrument.
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(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. [INTENTIONALLY
DELETED]
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 uncond