PAYMENT GUARANTY
THIS PAYMENT GUARANTY (this "Guaranty") is made and entered into as of this
1st day of July, 1996, by APARTMENT INVESTMENT AND MANAGEMENT COMPANY, a
corporation duly organized and existing under the laws of Maryland (the
"Guarantor"), for the benefit of FEDERAL NATIONAL MORTGAGE ASSOCIATION, a
corporation duly organized and existing under the Federal National Mortgage
Association Charter Act, 12 U.S.C. Section 1716 ET. SEQ. ("Credit Enhancer").
RECITALS
A. Pursuant to that certain Master Reimbursement Agreement of even date
herewith, between Credit Enhancer and OTC Apartments Limited Partnership
("Borrower"), a limited partnership duly organized and existing under the laws
of Florida (such agreement, as the same may be amended, supplemented, or
otherwise modified or amended and restated from time to time in accordance with
its terms, the "Reimbursement Agreement"), Credit Enhancer has agreed to provide
credit enhancement pursuant to and in accordance with the terms of certain
Related Xxxxxx Xxx Pass-Through Certificates executed and delivered in
connection with certain Mortgage Loans made to Borrower by various issuers and
financed by certain Related Bonds.
B. Guarantor has an indirect ownership interest in, or is otherwise
financially interested in, Borrower and will receive a material benefit from
Credit Enhancer's agreement to enter into each of the Related Xxxxxx Mae Pass-
Through Certificates and the other Transaction Documents.
C. Credit Enhancer is willing to enter into the Related Xxxxxx Xxx Pass-
Through Certificates only if Guarantor agrees to guaranty certain obligations of
Borrower under the Reimbursement Agreement, the Reimbursement Mortgages, the
other Reimbursement Loan Documents and the other Transaction Documents.
NOW THEREFORE, in order to induce Credit Enhancer to enter into the Related
Xxxxxx Mae Pass-Through Certificates for the benefit of Borrower, and in
consideration thereof, Guarantor hereby agrees as follows:
1. DEFINITIONS. All capitalized terms used in this Guaranty and not
defined herein shall have the respective meanings assigned to such terms in the
Reimbursement Agreement.
2. GUARANTY OF PAYMENT. Guarantor irrevocably, absolutely and
unconditionally guarantees to Credit Enhancer the full, due and punctual payment
of:
(a) all amounts for which Borrower may at any time be personally
liable under subsection 3.11(b) or subsection 3.11(c) of the Reimbursement
Agreement, whether for principal, interest or other sums; and
(b) all amounts that Borrower is obligated to pay pursuant to section
3.1(f) of the Reimbursement Agreement.
This Guaranty is an unconditional guaranty of payment and not of collection, and
is in no way conditioned upon any attempt by Credit Enhancer to collect from
Borrower. This Guaranty is a continuing guaranty which shall remain in full
force and effect until all of the Obligations of Borrower to Credit Enhancer
under the Reimbursement Agreement have been paid and performed in full, and
Guarantor shall not be released from any obligations to Credit Enhancer under
this Guaranty as long as any amount payable or any other obligation owing by
Borrower to Credit Enhancer under the Reimbursement Agreement is not satisfied,
performed, settled or paid in full. Guarantor's obligations under this Section
are hereinafter referred to as the "Guaranteed Obligations."
3. FORM OF PAYMENT. All payments under this Guaranty shall be made to
Credit Enhancer in immediately available funds, without reduction by any
recoupment, set-off, counterclaim or cross-claim against Credit Enhancer, in
care of the Servicer at the address set forth in Section 15 hereof.
4. GUARANTOR'S OBLIGATIONS ARE ABSOLUTE. The obligations of Guarantor
under this Guaranty shall be absolute and unconditional, shall not be subject to
any counterclaim, set-off, recoupment, deduction or defense based upon any claim
Guarantor may have against Credit Enhancer or Borrower and shall remain in full
force and effect without regard to, and shall not be released, discharged or
terminated or in any other way affected by, any circumstance or condition
(whether or not Guarantor shall have any knowledge or notice thereof), including
without limitation:
(a) any amendment or modification of, or extension of time for payment of
any of the principal of, interest on or other amounts payable under, the
Reimbursement Agreement, the Reimbursement Mortgages, any other Reimbursement
Loan Document, or any other Transaction Document (except that the liability of
Guarantor hereunder shall be deemed to apply to such Transaction Documents as so
amended or modified or to the payment of all amounts so extended);
(b) any exercise or non-exercise by Credit Enhancer of any right, power or
remedy taken or in respect of the Reimbursement Agreement, the Reimbursement
Mortgages, any other reimbursement Loan Document, or any other Transaction
Document, or any waiver, consent, forbearance, indulgence or other action,
inaction or omission by Credit Enhancer under or in respect of the Reimbursement
Agreement, the Reimbursement Mortgages, the other Reimbursement Loan Documents
or any other Transaction Documents;
(c) any assignment, sale or other transfer of Borrower's interest in all
or any part of the real or personal property which at any time constitutes
collateral for the payment of the Guaranteed Obligations including without
limitation a conveyance of such property by Borrower to Credit Enhancer by deed
in lieu of foreclosure;
(d) any bankruptcy, insolvency, reorganization, adjustment, dissolution,
liquidation or other like proceeding involving or affecting Borrower or Credit
Enhancer or their respective properties or creditors, or any action taken with
respect to the Reimbursement Agreement, the Reimbursement Mortgages, any other
Reimbursement Loan Document or any other Transaction
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Document by any trustee or receiver of Credit Enhancer or Borrower, or by any
court, in any such proceeding;
(e) any invalidity or unenforceability, in whole or in part, of any term
or provision of the Reimbursement Agreement, the Reimbursement Mortgages, any
other Reimbursement Loan Document or any other Transaction Document or
Borrower's incapacity or lack of authority to enter into the Reimbursement
Agreement, the Reimbursement Mortgages, any other Reimbursement Loan Document or
any other Transaction Document;
(f) any release, compromise, settlement or discharge with respect to all
or any portion of Borrower's obligations under the Reimbursement Agreement, the
Reimbursement Mortgages, any other Reimbursement Loan Document or any other
Transaction Document;
(g) any acceptance of additional or substituted collateral for payment of
the Guaranteed Obligations or any release or subordination of any collateral
held at any time by Credit Enhancer as security for the payment of the
Guaranteed Obligations;
(h) any resort to Guarantor for payment of all or any portion of the
Guaranteed Obligations, whether or not Credit Enhancer shall have resorted to
any collateral securing the Guaranteed Obligations or shall have proceeded
against Borrower or any other Person primarily or secondarily liable for the
Obligations, it being intended that Credit Enhancer may pursue its rights
hereunder at any time or times; or
(i) any waiver by Credit Enhancer of any breach of the Reimbursement
Agreement, the Reimbursement Mortgages, any other Reimbursement Loan Document or
any other Transaction Document by Borrower.
No exercise, delay in exercise or non-exercise by Credit Enhancer of any
right hereby given it, no dealing by Credit Enhancer with Borrower, Guarantor or
any other Person, no change, impairment or suspension of any right or remedy of
Credit Enhancer, and no act or thing which, but for this provision, could act as
a release or exoneration of the liabilities of Guarantor hereunder, shall in any
way affect, decrease, diminish or impair any of the obligations of Guarantor
hereunder or give Guarantor or any other Person any recourse or defense against
Credit Enhancer.
5. WAIVER. Guarantor unconditionally waives the following:
(a) notice of acceptance of this Guaranty and notice of any of the matters
referred to in Section 4 hereof;
(b) all notices which may be required by statute, rule of law or otherwise
to preserve intact any rights which Credit Enhancer may have against Guarantor
under this Guaranty, including without limitation, any demand, proof or notice
of non-payment of any of the principal of, interest on or other amounts payable
under the Reimbursement Agreement, the Reimbursement Mortgages, any other
Reimbursement Loan Document or any other Transaction Document, and notice of any
failure on the part of Borrower to perform and comply with any
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covenant, agreement, term or condition of the Reimbursement Agreement, the
Reimbursement Mortgages, any other Reimbursement Loan Document or any other
Transaction Document;
(c) any right to the enforcement, assertion or exercise of any right,
power or remedy conferred in the Reimbursement Agreement, the Reimbursement
Mortgages, any other Reimbursement Loan Document or any other Transaction
Document or otherwise;
(d) any requirement that Credit Enhancer act with diligence in enforcing
its rights under the Reimbursement Agreement, the Reimbursement Mortgages, any
other Reimbursement Loan Document or any other Transaction Document or this
Guaranty;
(e) any right to require Credit Enhancer to proceed against or exhaust its
recourse against Borrower or any security or collateral held by Credit Enhancer
at any time for the payment of the Guaranteed Obligations or to pursue any other
remedy in its power before being entitled to payment from Guarantor under this
Guaranty or before proceeding against Guarantor;
(f) any failure by Credit Enhancer to file or enforce a claim against the
estate (either in administration, bankruptcy or any other proceeding) of
Borrower or any other Person;
(g) any defense based upon an election of remedies by Credit Enhancer
which destroys or otherwise impairs the subrogation rights of Guarantor or the
right of Guarantor (after payment of the Guaranteed Obligations) to proceed
against Borrower for reimbursement, or both;
(h) any defense based upon any taking, modification or release of any
collateral for the Guaranteed Obligations, or any failure to perfect any
security interest in, or the taking of, or failure to take any other action with
respect to, any collateral securing payment of the Guaranteed Obligations;
(i) any defense based upon the addition, substitution or release, in whole
or in part, of any Person(s), including without limitation another Guarantor,
primarily or secondarily liable for or in respect of the Guaranteed Obligations;
(j) any rights or defenses based upon an offset by Guarantor against any
obligation now or hereafter owed to Guarantor by Borrower;
(k) any defense of the statute of limitations in any action against
Guarantor under this Guaranty; and
(l) all other notices which may or might be lawfully waived by Guarantor;
it being the intention hereof that Guarantor shall remain liable as principal,
to the extent set forth in this Guaranty, until the payment in full of the
Guaranteed Obligations, notwithstanding any act, omission or thing which might
otherwise operate as a legal or equitable discharge of Guarantor other than the
payment in full of the Guaranteed Obligations. No delay by Credit
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Enhancer in exercising any rights and/or powers hereunder or in taking any
action to enforce Borrower's obligations under the Reimbursement Agreement, the
Reimbursement Mortgages, any other Reimbursement Loan Document or any other
Transaction Document shall operate as a waiver as to such rights or powers or in
any manner prejudice any and all of Credit Enhancer's rights and powers
hereunder against Guarantor. It is the intention of Guarantor under this
Guaranty that as long as any of the Guaranteed Obligations remain unsatisfied,
the obligations of Guarantor hereunder shall not be discharged except by
performance and then only to the extent of such performance.
6. ELECTION OF REMEDIES. This Guaranty may be enforced from time to time,
as often as occasion therefor may arise, and without any requirement that Credit
Enhancer must first exercise any rights against Borrower or any other Person or
exhaust any remedies available to it against Borrower under the Reimbursement
Agreement, the Reimbursement Mortgages, any other Reimbursement Loan Document or
any other Transaction Document or against any other Person or resort to any
collateral at any time held by it for performance of the Guaranteed Obligations
or any other source or means of obtaining payment of any of the Guaranteed
Obligations.
7. EXPENSES. Guarantor agrees to pay all costs and out-of-pocket
expenses, including court costs and expenses and the reasonable fees and
disbursements of legal counsel incurred by or on behalf of Credit Enhancer or
the Servicer in connection with the enforcement of Guarantor's obligations under
this Guaranty or the protection of Credit Enhancer's rights under this Guaranty.
The covenant contained in this Section shall survive the payment of the
Guaranteed Obligations.
8. CONDITION OF BORROWER. Guarantor is fully aware of the financial
condition of Borrower and is executing and delivering this Guaranty based solely
upon Guarantor's own independent investigation of all matters pertinent hereto
and is not relying in any manner upon any representation or statement made by
Credit Enhancer. Guarantor represents and warrants that Guarantor is in a
position to obtain, and Guarantor hereby assumes full responsibility for
obtaining, any additional information concerning Borrower's financial condition
and any other matters pertinent hereto as Guarantor may desire and Guarantor is
not relying upon or expecting Credit Enhancer to furnish to Guarantor any
information now or hereafter in Credit Enhancer's possession concerning the same
or any other matter. By executing this Guaranty, Guarantor knowingly accepts the
full range of risks encompassed within a contract of this type, which risks
Guarantor acknowledges.
9. FURTHER ASSURANCES. Guarantor agrees at any time and from time to time
upon request by Credit Enhancer to take or cause to be taken, any action and to
execute and deliver any additional documents which in the opinion of Credit
Enhancer, may be necessary in order to assure to Credit Enhancer the full
benefits of this Guaranty.
10. SUBORDINATION. Guarantor hereby irrevocably and unconditionally agrees
that any claims, direct or indirect, that Guarantor may have by subrogation or
other form of reimbursement, against Borrower or to any security or any interest
therein, by virtue of this Guaranty or as a consequence of any payment made by
Guarantor pursuant to this Guaranty,
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shall be fully subordinated in time and right of payment to the payment in full
of the Guaranteed Obligations and all other obligations of Guarantor to Credit
Enhancer under this Guaranty.
11. NO SUBROGATION. Guarantor shall not have any right of subrogation
against Borrower by reason of any payment by Guarantor under this Guaranty.
12. INSOLVENCY AND LIABILITY OF BORROWER. So long as any of the Guaranteed
Obligations are unpaid and this Guaranty is in effect, Guarantor agrees to file
all claims against Borrower in any bankruptcy or other proceeding in which the
filing of claims is required by law in connection with indebtedness owed by
Borrower to Guarantor and to assign to Credit Enhancer all rights of Guarantor
thereunder up to the amount of such indebtedness. In all such cases the Person
or Persons authorized to pay such claims shall pay to Credit Enhancer the full
amount thereof to the full extent necessary to pay the Guarantee Obligations and
Guarantor hereby assigns to Credit Enhancer all of Guarantor's rights to all
such payments to which Guarantor would otherwise be entitled. Notwithstanding
the foregoing and except to the extent that any sums owed by Borrower to Credit
Enhancer under the Reimbursement Agreement, the Reimbursement Mortgages, any
other Reimbursement Loan Document or any other Transaction Document shall have
been fully satisfied thereby, the liability of Guarantor hereunder shall in no
way be affected by:
(a) the release or discharge of Borrower in any creditors', receivership,
bankruptcy or other proceedings; or
(b) the impairment, limitation or modification of the liability of
Borrower or the estate of Borrower in bankruptcy resulting from the operation of
any present or future provisions of the Bankruptcy Code or other statute or
from the decision in any court.
13. PREFERENCES, FRAUDULENT CONVEYANCES, ETC. If Credit Enhancer is
required to refund, or voluntarily refunds, any payment received from Borrower
because such payment is or may be avoided, invalidated, declared fraudulent, set
aside or determined to be void or voidable as a preference, fraudulent
conveyance, impermissible setoff or a diversion of trust funds under the
bankruptcy laws or for any similar reason, including without limitation any
judgment, order or decree of any court or administrative body having
jurisdiction over Credit Enhancer or any of its property, or any statement or
compromise of any claim effected by Credit Enhancer with Borrower or any other
claimant (a "RESCINDED PAYMENT"), then Guarantor's liability to Credit Enhancer
shall continue in full force and effect, or Guarantor's liability to Credit
Enhancer shall be reinstated, as the case may be, with the same effect and to
the same extent as if the Rescinded Payment had not been received by Credit
Enhancer, notwithstanding the cancellation or termination of the Reimbursement
Agreement, the Reimbursement Mortgages, any other Reimbursement Loan Document or
any other Transaction Document. In addition, Guarantor shall pay, or reimburse
Credit Enhancer for, all expenses (including all reasonable attorneys' fees,
court costs and related disbursements) incurred by Credit Enhancer in the
defense of any claim that a payment received by Credit Enhancer in respect of
all or any part of the Guaranteed Obligations must be refunded. The provisions
of this Section shall survive the termination of this Guaranty and any
satisfaction and discharge of Borrower by virtue of any payment, court order or
any federal or state law.
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14. WAIVER. Neither this Guaranty nor any term hereof may be changed,
waived, discharged or terminated except by an instrument in writing signed by
Credit Enhancer and Guarantor expressly referring to this Guaranty and to the
provisions so changed or limited. No such waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of Credit Enhancer in
exercising any right under this Guaranty shall operate as a waiver thereof
otherwise by prejudicial thereto.
15. NOTICES. Any demand or notice required or permitted to be given by
Credit Eahancer to Guarantor under this Guaranty shall be sufficiently given
when sent by certified or registered mail, return receipt requested, OR by
overnight courier addressed to the appropriate notice address set forth below.
Any of the parties hereto may, by a notice to the other party specifically
captioned "Notice of Change of Address pursuant to section 15 of the Payment
Guaranty", designate any further or different address to which subsequent
notices, certificates or other communications shall be sent without any
requirement of execution of any amendment to this Guaranty. Any such notice,
certificate or communication shall be deemed to have been given as of the date
of actual delivery or the date of failure to deliver by reason of refusal to
accept delivery or changed address of which no notice was given pursuant to this
Section. The notice addresses are as follows:
(a) if to Guarantor:
Apartment Investment and Management Company
0000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Vice Chairman
(b) if to Credit Enhancer:
if by mail or overnight courier:
Xxxxxx Xxx
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Senior Vice President -
Multifamily Activities
if by messenger:
Xxxxxx Mae
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Senior Vice President -
Multifamily Activities
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in each case, with copies to:
Xxxxxx Xxx
Southwest Regional Office
Two Galleria Tower
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attention: Vice President - Multifamily Activities
and to:
Xxxxxx Xxx
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Multifamily Mortgage Operations - Manager
Multifamily Deliveries
and with copies to Servicer:
GMAC Commercial Mortgage Corporation
000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
16. JURISDICTION, CONSENT TO SERVICE, WAIVER OF JURY TRIAL.
(a) Guarantor hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any court in the state of
Florida or Federal court of the United States of America sitting in the State of
Florida, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Guaranty or for recognition or enforcement of
any judgment, and each of Guarantor and Credit Enhancer hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Florida court or, to the extent
permitted by law, in such Federal court. Each of Guarantor and Credit Enhancer
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Guaranty shall effect any
right that Credit Enhancer may otherwise have to bring any action or proceeding
relating to this Guaranty against Guarantor or its properties in the courts of
any jurisdiction.
(b) Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Guaranty in any Federal court or any court in
the state of Florida. Each of Guarantor and Credit Enhancer hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
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(c) Each of Guarantor and Credit Enhancer irrevocably consents to service
of process in the manner provided for notices in section 15. Nothing in this
Guaranty will affect the right of either Guarantor or Credit Enhancer to serve
process in any other manner permitted by law.
(d) GUARANTOR AND CREDIT ENHANCER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTY
AND FOR ANY COUNTERCLAIM THEREIN.
17. WAIVER OF HOMESTEAD OR EXEMPTION RIGHTS. Guarantor waives any and all
homestead or exemption rights Guarantor may have under or by virtue of any
Constitution or laws of any State of the United States or the State of Florida
with respect to the liability and obligation arising under this Guaranty.
Guarantor hereby transfers, conveys, and assigns to Credit Enhancer a sufficient
amount of any homestead or exemption rights that may be allowed to Guarantor,
including any such homestead or exemption rights that may be set apart in
bankruptcy, to pay the obligations created by this Guaranty in full, with all
costs or collection. Guarantor hereby, directs any party, having possession of
such homestead or exemption rights, including a trustee in bankruptcy to deliver
to Credit Enhancer a sufficient amount of property or money set apart as exempt
to pay Guarantor's obligations arising under this Guaranty.
18. ASSIGNABILITY BY CREDIT ENHANCER. Credit Enhancer may, without notice
to Guarantor, assign or transfer the Obligations of Borrower owed to Credit
Enhancer under the Reimbursement Agreement, the Reimbursement Mortgages, any
other Reimbursement Loan Document or any other Transaction Document, in whole or
in part. In such event, each and every immediate and successive assignee,
transferee or holder of all or any part of the Obligations of Borrower under the
Reimbursement Agreement, the Reimbursement Mortgages, any other Reimbursement
Loan Document or any other Transaction Document shall have the right to enforce
this Guaranty, by legal action or otherwise, as fully as if such assignee,
transferee, or holder were by name specifically given such right and power in
this Guaranty. Credit Enhancer shall have an unimpaired right to enforce this
Guaranty for its benefit as to so much of the Obligations of Borrower under the
Reimbursement Agreement, the Reimbursement Mortgages, any other Reimbursement
Loan Document or any other Transaction Document, as Credit Enhancer has not
sold, assigned or transferred.
19. GUARANTOR BOUND BY JUDGMENT AGAINST BORROWER. Guarantor shall be
conclusively bound with respect to all issues involving or relating to the
Guaranteed Obligations, by the judgment in any jurisdiction in any action by
Credit Enhancer against Borrower in connection with the Reimbursement Agreement,
the Reimbursement Mortgages, any other Reimbursement Loan Document or any other
Transaction Document (wherever instituted) as if Guarantor were a party to such
action even if not so joined as a party.
20. COUNTERPARTS. This Guaranty may be signed in one or more counterparts,
each of which shall be an original and all of which together shall constitute
but one and the same instrument.
21. GOVERNING LAW. This Guaranty shall be construed and enforced in
accordance with, and the rights and remedies of the parties hereto shall be
governed by, the laws of the
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IN WITNESS WHEREOF, Guarantor has signed this Guaranty under seal as of the
day and year first above written.
GUARANTOR:
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
a Maryland corporation
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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