Exhibit 10.9
FHLMC# 504180223
GUARANTY
MULTISTATE
(for use in all Property jurisdictions except
California)
REVISION DATE 05/06/05
This Guaranty (" Guaranty ") is entered into to be effective
as of October 2, 2009, by the undersigned person(s) (the "
Guarantor " jointly and severally if more than one), for the
benefit of WACHOVIA MULTIFAMILY CAPITAL, INC., a Delaware
corporation (the " Lender ").
RECITALS
A. CENTURY SUN RIVER,
LIMITED PARTNERSHIP, an Arizona limited partnership (the "
Borrower ") has requested that Lender make a loan to
Borrower in the amount of $3,125,000.00 (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, t he 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 genuineness,
va