EXCEPTIONS TO NON-RECOURSE GUARANTY
This Exceptions to Non-Recourse Guaranty is entered into as of December
1996, by the undersigned (collectively, the "Key Principal" whether one or
more), in order to induce GMAC COMMERCIAL MORTGAGE CORPORATION (the "Lender")
to make a loan to XXXXXXX LIMITED PARTNERSHIP, an Illinois limited
partnership (the "Borrower ) in the amount of $2,488,400 (the "Loan").
RECITALS
A. The Loan is evidenced by a Multifamily Note from Borrower to Lender of
even date herewith (the "Multifamily Note"). The Loan is secured by a
Multifamily Deed of Trust, Assignment of Rents and Security Agreement of even
date herewith (the "Multifamily Instrument"), covering the property described
in the Multifamily Instrument and located at Austin, Texas (the "Property").
The Multifamily Instrument is amended and supplemented by a Rider to
Multifamily Instrument of even date herewith and a Supplemental Rider to the
Multifamily Instrument of even date herewith (collectively, the "Rider").
B. The Multifamily Note, as 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 Lender under the Note and
the Instrument (due to the applicability of the exceptions to non-recourse
liability provisions contained in 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 this 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
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
EXCEPTIONS TO NON-RECOURSE GUARANTY - Xxxxxx Xxx Uniform Instrument Form 4501
6/93
(PAGE 1 OF 2)
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 Lender 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.
THIS EXCEPTIONS TO NON-RECOURSE GUARANTY AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES 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.
This Exceptions to Non-Recourse Guaranty shall be governed by,
interpreted, construed and enforced pursuant to and in accordance with the
laws of the State of Texas (excluding the law applicable to conflicts or
choice of law). Key Principal agrees that, at Xxxxxx's option, any
controversy arising under or in relation to this Exceptions to Non-Recourse
Guaranty shall be litigated in the Commonwealth of Pennsylvania. At Lender's
option, the Court of Common Pleas for Xxxxxxxxxx County, Pennsylvania and the
federal court for the Eastern District of Pennsylvania, shall 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 this Exceptions to Non-Recourse Guaranty, and
waives any other venue 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 and/or against any property 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 State of Texas 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
Commonwealth of Pennsylvania. The foregoing provisions were knowingly,
willingly, and voluntarily agreed to by Key Principal upon consultation with
independent counsel selected by Key Principal.
Form 4501 6/93 (PAGE 2 OF 2)
SIGNATURE PAGE TO EXCEPTIONS TO
NON-RECOURSE GUARANTY
KEY PRINCIPAL:
APARTMENT INVESTMENT
AND MANAGEMENT COMPANY
By: /s/ X. Xxxxxx
____________________________
Name: Xxxxx Xxxxxx
__________________________
Title: VP
_________________________
Address: 0000 X. Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
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