EXCEPTIONS TO NON-RECOURSE GUARANTY
(WICKERTREE)
This Exceptions to Non-Recourse Guaranty is entered into as of October 31,
1997, by the undersigned (collectively, the "Key Principal whether one or more),
in order to induce GMAC COMMERCIAL MORTGAGE CORPORATION, a California
corporation (the "Lender") to make a loan to AIMCO/WICKERTREE, L.P., a Delaware
limited partnership (the "Borrower") in the amount of $ 4,231,700.00 (the
"Loan").
RECITALS
A. The Loan is evidenced by a Multifamily Note from Borrower to Lender as
of even date herewith (the "Multifamily Note"), as modified by an Addendum to
Multifamily Note of even date herewith (the "Addendum"). The Loan is secured by
a Multifamily Mortgage, Deed of Trust or Deed to Secure Debt of even date
herewith (the "Multifamily Instrument"), covering the property described in the
Multifamily Instrument (the "Property"). The Multifamily Instrument is amended
and supplemented by a Rider to Multifamily Instrument and a Supplemental Rider
to Multifamily Instrument each as of even date herewith (collectively, the
"Rider").
B. The Multifamily Note, as modified by the Addendum and as further
amended from time to time, shall be referred to in this Exceptions to Non-
Recourse Guaranty as the "Note." The Multifamily Instrument, as modified by the
Rider and as further amended from time to time, shall be referred to in this
Exceptions to Non-Recourse Guaranty as the "Instrument." The term "Loan
Documents" when used in this Exceptions to Non-Recourse Guaranty, shall mean,
collectively, the following documents: (i) the Note, (ii) the Instrument, and
(iii) all other documents or agreements, including any Collateral Agreements (as
defined in the Rider) or O&M Agreement (as defined in the Rider), executed in
connection with the Loan, whether presently existing or hereinafter entered
into, as such Loan Documents may be amended from time to time.
X. Xxxxxx is unwilling to make the Loan unless the undersigned Key
Principal executes this Exceptions to Non-Recourse Guaranty.
NOW, THEREFORE, in order to induce Lender to make the Loan evidenced by the
Note and secured by the Instrument, and in consideration thereof, Key Principal
hereby (i) irrevocably and unconditionally guarantees the full and prompt
payment to Lender of all amounts which may from time to time while the Note is
outstanding and unpaid become due and owing by Borrower, whether principal,
interest or other sums, for which Borrower may from time to time, or at any time
be personally liable for payment to Leader under the Note and the Instrument
(due to the applicability of the exceptions to non-recourse liability provisions
as contained in paragraph C of the Addendum and paragraph L of the Rider) (the
"Guaranteed Obligations"), and (ii) agrees to pay, on demand, all costs and
expenses, including reasonable attorneys' fees and disbursements, incurred by
Xxxxxx in enforcing its rights under this Exceptions to Non-Recourse Guaranty.
All obligations of Key Principal under the Exceptions to Non-Recourse Guaranty
shall be joint and several among all persons (if more than one) included as a
Key Principal. This Exceptions to Non-Recourse Guaranty is an unconditional
guaranty of payment, and not a guaranty of collection, and may be enforced by
Xxxxxx directly against Key Principal without any requirement that Lender must
first exercise its rights against Borrower or any general partner of Borrower or
any collateral or other security for payment of the Note.
The obligations of Key Principal under this Exceptions to Non-Recourse
Guaranty shall be performed without demand by Lender and shall be
unconditional irrespective of the genuineness, validity, regularity or
enforceability of the Note, the Instrument, or any other circumstance which
might otherwise constitute a legal or equitable discharge of a surety or a
guarantor. Key Principal hereby waives the benefit of all principles or
provisions of law, statutory or otherwise, which are or might be in conflict
with the terms of this Exceptions to Non-Recourse Guaranty, and agrees that
the obligations of Key Principal shall not be affected by any circumstances,
whether or not referred to in this Exceptions to Non-Recourse Guaranty, which
might otherwise constitute a legal or equitable discharge of a surety or
guarantor. Key Principal hereby waives the benefits of any right of discharge
under any and all statutes or other laws relating to guarantors or sureties
and any other rights of sureties and guarantors thereunder. Without limiting
the generality of the foregoing, Key Principal hereby waives diligence,
presentment, demand for payment, protest, all notices which may be required
by statute, rule of law or otherwise to preserve intact Lender's rights
against Key Principal under this Exceptions to Non-Recourse Guaranty,
including, but not limited to, notice of acceptance, notice of any amendment
of the Loan Documents, notice of the occurrence of any default, notice of
intent to accelerate, notice of acceleration, notice of dishonor, notice of
foreclosure, notice of protest, notice of the incurring by Borrower of any of
the Guaranteed Obligations, and, generally, all demands, notices and other
formalities of every kind in connection with this Exceptions to Non-Recourse
Guaranty, and all rights to require Lender to (a) proceed against Borrower
or, if Borrower is a partnership, any general partner of Borrower, (b)
proceed against or exhaust any collateral held by Xxxxxx to secure the
payment of the Loan, or (c) pursue any other remedy it may now or hereafter
have against Borrower, or, if Borrower is a partnership, any general partner
of Xxxxxxxx.
Key Principal hereby agrees that, at any time or from time to time and any
number of times, without notice to Key Principal and without affecting the
liability of Key Principal, (a) the time for payment of the principal of or
interest on the Note may be extended or the Note may be renewed in whole or in
part one or more times; (b) the time for Borrower's performance of or compliance
with any covenant or agreement contained in the Note, the
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Instrument or any other Loan Document evidencing, securing or governing the
Loan, whether presently existing or hereinafter entered into, may be extended or
such performance or compliance may be waived; (c) the maturity of the Note may
be accelerated as provided therein or in the Instrument, or any other Loan
Document; (d) the Note, the Instrument, or any other Loan Document, may be
modified or amended by Lender and Borrower in any respect, including, but not
limited to, an increase in the principal amount; and (e) any security for the
Loan may be modified, exchanged, surrendered or otherwise dealt with or
additional security may be pledged or mortgaged for the Loan.
If any payment by Borrower is held to constitute a preference under any
applicable bankruptcy or similar laws, or if for any reason Lender is required
to refund any sums to Borrower, such amounts shall not constitute a release of
any liability of Key Principal hereunder. It is the intention of Xxxxxx and Key
Principal that Key Principal's obligations hereunder shall not be discharged
except by Key Principal's performance of such obligations and then only to the
extent of such performance.
Key Principal agrees that any indebtedness of Borrower now or hereafter
held by Key Principal is hereby and shall be subordinated to all indebtedness of
Borrower to Lender and any such indebtedness of Borrower shall be collected,
enforced and received by Key Principal, as trustee for Lender, but without
reducing or affecting in any manner the liability of Key Principal under the
other provisions of this Exceptions to Non-Recourse Guaranty.
Key Principal agrees that Lender, in its sole and absolute discretion, may
(a) bring suit against Key Principal, or any one or more of the individuals
constituting Key Principal, and any other guarantor of the Note, jointly and
severally, or against any one or more of them; (b) compromise or settle with any
one or more of the individuals constituting Key Principal for such consideration
as Lender may deem proper; (c) release one or more of the individuals
constituting Key Principal, or any other guarantors of the Note, from liability
thereunder; and (d) otherwise deal with Key Principal and any other guarantor of
the Note, or any one or more of them, in any manner whatsoever, and that no such
action shall impair the rights of Leader to collect the Guaranteed Obligations
from Key Principal. Nothing contained in this paragraph shall in any way affect
or impair the rights or obligations of the Key Principal with respect to any
other guarantor of the Note.
Lender may assign its rights under this Exceptions to Non-Recourse Guaranty
in whole or in part and upon any such assignment, all the terms and provisions
of this Exceptions to Non-Recourse Guaranty shall inure to the benefit of such
assignee to the extent so assigned. The terms used to designate any of the
parties herein shall be deemed to include the heirs, legal representatives,
successors and assigns of such parties; and the term "Lender" shall include, in
addition to Lender, any lawful owner, holder or pledgee of the Note.
Key Principal shall have no right of, and hereby waives any claim for,
subrogation or reimbursement against the Borrower or any general partner of
Borrower by reason of any payment by Key Principal under this Exceptions to
Non-Recourse Guaranty, whether such right or claim arises at law or in equity or
under any contract or statute.
Key Principal hereby waives trial by jury in any action or proceeding
commenced by Xxxxxx against Key Principal under this Exceptions to Non-Recourse
Guaranty.
Key Principal hereby waives and agrees not to assert, INTER ALIA: (a) the
benefits of any statutory provision limiting the liability of a surety,
including without limitation the provisions of Sections 12-164 ET SEQ., Arizona
Revised Statutes; and (b) the benefits of any statutory provision limiting the
right of the Lender to recover a deficiency judgment, or to otherwise proceed
against any person or entity obligated for payment of the Note, after any
foreclosure or trustee's sale of any security for the Note, including without
limitation the benefits, if any to a Surety of Arizona Revised Statutes Section
33-814.
THIS EXCEPTIONS TO NON-RECOURSE GUARANTY AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. ALL PRIOR OR CONTEMPORANEOUS
AGREEMENTS, UNDERSTANDINGS, REPRESENTATIONS, AND STATEMENTS, ORAL OR WRITTEN,
ARE MERGED INTO THIS EXCEPTIONS TO NON-RECOURSE GUARANTY AND THE OTHER LOAN
DOCUMENTS. NEITHER THIS EXCEPTIONS TO NON-RECOURSE GUARANTY NOR ANY PROVISION
HEREOF MAY BE WAIVED, MODIFIED, AMENDED, DISCHARGED, OR TERMINATED EXCEPT BY AN
AGREEMENT IN WRITING SIGNED BY THE PARTY AGAINST WHICH THE ENFORCEMENT OF SUCH
WAIVER, MODIFICATION, AMENDMENT, DISCHARGE, OR TERMINATION IS SOUGHT, AND THEN
ONLY TO THE EXTENT SET FORTH IN SUCH AGREEMENT.
Each of the terms and provisions, and rights and obligations of Key
Principal hereunder shall be governed by, interpreted, construed and enforced
pursuant to and in accordance with the laws of the State in which the Property
is located (the "Property Jurisdiction") and the applicable laws of the United
States of America. Key Principal agrees that any controversy arising under or in
relation to this Exceptions to Non-Recourse Guaranty shall be, except as
otherwise provided herein, litigated in the Property Jurisdiction. The local and
federal courts and authorities with jurisdiction in the Property Jurisdiction
shall, except as otherwise provided herein, have jurisdiction over all
controversies which may arise under or in relation to this Exceptions to Non-
Recourse Guaranty, including without limitation those controversies relating to
the execution, jurisdiction, breach, enforcement or compliance with this
Exceptions to Non-Recourse Guaranty. Key Principal irrevocably consents to
service, jurisdiction and venue of such courts for any litigation arising from
the Exceptions to Non-Recourse Guaranty, and waives any other venue
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to which it might be entitled by virtue of domicile, habitual residence or
otherwise. Nothing contained herein, however, shall prevent Lender from bringing
any suit, action or proceeding or exercising any rights against Key Principal in
any other jurisdiction. Initiating such suit, action or proceeding or taking
such action in any other jurisdiction shall in no event constitute a waiver of
the agreement contained herein that the laws of the Property Jurisdiction and
the applicable laws of the United States of America shall govern the rights and
obligations of Key Principal and Lender as provided herein or the submission
herein by Key Principal to personal jurisdiction within the Property
Jurisdiction.
Key Principal:
APARTMENT INVESTMENT AND MANAGEMENT
COMPANY, A MARYLAND CORPORATION
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
Vice President
Address: 1873 X. Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
AIMCO PROPERTIES, L.P., A DELAWARE
LIMITED PARTNERSHIP
By: AIMCO-GP, INC., a Delaware
corporation, its General Partner
By: /s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx
Vice President
Address: 1873 X. Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
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