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EXHIBIT 10.4
LIMITED GUARANTY
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(MULTISTATE)
This Limited Guaranty ("GUARANTY") is entered into as of 22nd day of
March, 2000, by the undersigned person(s) (the "GUARANTOR" whether one or
more), for the benefit of ____________________________________________________
__________________________________________________________________, and/or any
subsequent holder of the Note (the "LENDER").
RECITALS
A. ____________________________________________________________
(the "BORROWER") has requested that Lender make a loan to Borrower in the
amount of $________________________________(the "LOAN"). The Loan will be
evidenced by a Multifamily Note from Borrower to Lender dated as of the date of
this Guaranty (the "NOTE"). The Note will be secured by a Multifamily Mortgage,
Deed of Trust, or Deed to Secure Debt dated the same date as the Note (the
"SECURITY INSTRUMENT"), encumbering the real property described in the Security
Instrument (the "PROPERTY").
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. "Indebtedness" and other capitalized terms used but not
defined in this Guaranty shall have the meanings assigned to them in the
Security Instrument.
2. Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to Lender the full and prompt payment when due, whether at maturity
or earlier, by reason of acceleration or otherwise, and at all times
thereafter, and the full and prompt performance when due, of all of the
following:
(a) A portion of the Indebtedness equal to _________ percent
(______%) of the _________________ principal balance of the
Note (the "BASE GUARANTY").
(b) In addition to the Base Guaranty, all other amounts for which
Borrower is personally liable under Paragraphs 9(c) through
9(f) of the Note.
(c) The payment and performance of all of Borrower's obligations
under Section 18 of the Security Instrument.
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(d) The entire Indebtedness, in the event that (i) Borrower
voluntarily files for bankruptcy protection under the United
States Bankruptcy Code or 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 (ii) an order for
relief is entered against Borrower in any involuntary
bankruptcy filing by any creditor of Borrower (other than
Lender) pursuant to the United States Bankruptcy Code or
other federal or state law affecting debtor and creditor
rights.
(e) All costs and expenses, including reasonable fees and out of
pocket expenses of attorneys and expert witnesses, incurred
by Lender in enforcing its rights under this Guaranty.
For purposes of determining Guarantor's liability under this Guaranty, 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 shall be applied first to the portion of the Indebtedness for which
neither Borrower nor Guarantor has personal liability.
3. 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.
4. Guarantor's obligations under this Guaranty constitute an
unconditional guaranty of payment and not merely a guaranty of collection.
5. The obligations of Guarantor under this Guaranty shall be
performed without demand by Lender and shall be unconditional irrespective of
the genuineness, validity, regularity or enforceability of the Note, the
Security Instrument, or any other Loan Document, and without regard to any
other circumstance which might otherwise constitute a legal or equitable
discharge of a surety or a guarantor. Guarantor 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 Guaranty and agrees that Guarantor's
obligations shall not be affected by any circumstances, whether or not referred
to in this Guaranty, which might otherwise constitute a legal or equitable
discharge of a surety or a guarantor. Guarantor 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, Guarantor hereby
waives, to the fullest extent permitted by law, diligence in collecting the
Indebtedness, presentment, demand for payment, protest, all notices with
respect to the Note and this Guaranty which may be required by statute, rule of
law or otherwise to preserve Lender's rights against Guarantor under this
Guaranty, including, but not limited to, notice of acceptance, notice of any
amendment of the Loan Documents, notice of the occurrence of any default or
Event of Default, notice of intent to accelerate, notice of acceleration,
notice of dishonor, notice of foreclosure, notice of protest, and notice of the
incurring by Borrower
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of any obligation or indebtedness. Guarantor also waives, to the fullest extent
permitted by law, all rights to require Lender to (a) proceed against Borrower
or any other guarantor of Borrower's payment or performance with respect to the
Indebtedness (an "OTHER GUARANTOR") (b) if Borrower or any Other Guarantor is a
partnership, proceed against any general partner of Borrower or the Other
Guarantor, (c) proceed against or exhaust any collateral held by Lender to
secure the repayment of the Indebtedness, or (d) pursue any other remedy it may
now or hereafter have against Borrower, or, if Borrower is a partnership, any
general partner of Borrower.
6. At any time or from time to time and any number of times,
without notice to Guarantor and without affecting the liability of Guarantor,
(a) the time for payment of the principal of or interest on the Indebtedness
may be extended or the Indebtedness may be renewed in whole or in part; (b) the
time for Borrower's performance of or compliance with any covenant or agreement
contained in the Note, the Security Instrument or any other Loan Document,
whether presently existing or hereinafter entered into, may be extended or such
performance or compliance may be waived; (c) the maturity of the Indebtedness
may be accelerated as provided in the Note, the Security Instrument, or any
other Loan Document; (d) the Note, the Security 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 Indebtedness may be modified, exchanged, surrendered or
otherwise dealt with or additional security may be pledged or mortgaged for the
Indebtedness.
7. If more than one person executes this Guaranty, the
obligations of those persons under this Guaranty shall be joint and several.
Lender, in its sole and absolute discretion, may (a) bring suit against
Guarantor, or any one or more of the persons constituting Guarantor, and any
Other Guarantor, jointly and severally, or against any one or more of them; (b)
compromise or settle with any one or more of the persons constituting Guarantor
for such consideration as Lender may deem proper; (c) release one or more of
the persons constituting Guarantor, or any Other Guarantor, from liability; and
(d) otherwise deal with Guarantor and any Other Guarantor, or any one or more
of them, in any manner, and no such action shall impair the rights of Lender to
collect from Guarantor any amount guaranteed by Guarantor under this Guaranty.
Nothing contained in this paragraph shall in any way affect or impair the
rights or obligations of Guarantor with respect to any Other Guarantor.
8. Any indebtedness of Borrower held by Guarantor now or in the
future is and shall be subordinated to the Indebtedness and any such
indebtedness of Borrower shall be collected, enforced and received by
Guarantor, as trustee for Lender, but without reducing or affecting in any
manner the liability of Guarantor under the other provisions of this Guaranty.
9. Guarantor shall have no right of, and hereby waives any claim
for, subrogation or reimbursement against Borrower or any general partner of
Borrower by reason of any payment by Guarantor under this Guaranty, whether
such right or claim arises at law or in equity or under any contract or
statute, until the Indebtedness has been paid in full and there has expired the
maximum
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possible period thereafter during which any payment made by Borrower to Lender
with respect to the Indebtedness could be deemed a preference under the United
States Bankruptcy Code.
10. If any payment by Borrower is held to constitute a preference
under any applicable bankruptcy, insolvency, or similar laws, or if for any
other reason Lender is required to refund any sums to Borrower, such refund
shall not constitute a release of any liability of Guarantor under this
Guaranty. It is the intention of Lender and Guarantor that Guarantor's
obligations under this Guaranty shall not be discharged except by Guarantor's
performance of such obligations and then only to the extent of such
performance.
11. Guarantor shall from time to time, upon request by Lender,
deliver to Lender such financial statements as Lender may reasonably require.
12. Lender may assign its rights under this Guaranty in whole or
in part and upon any such assignment, all the terms and provisions of this
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.
13. This 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 Guaranty and the other Loan Documents. Guarantor acknowledges that it
has received copies of the Note and all other Loan Documents. Neither this
Guaranty nor any of its provisions may be waived, modified, amended,
discharged, or terminated except by an agreement in writing signed by the party
against which the enforcement of the waiver, modification, amendment,
discharge, or termination is sought, and then only to the extent set forth in
that agreement.
14. Guarantor agrees that any controversy arising under or in
relation to this Guaranty shall be litigated exclusively in the jurisdiction
where the Land is located (the "PROPERTY JURISDICTION"). The state and federal
courts and authorities with jurisdiction in the Property Jurisdiction shall
have exclusive jurisdiction over all controversies which shall arise under or
in relation to this Guaranty, the Note, the Security Instrument or any other
Loan Document. Guarantor irrevocably consents to service, jurisdiction, and
venue of such courts for any such litigation and waives any other venue to
which it might be entitled by virtue of domicile, habitual residence or
otherwise.
15. GUARANTOR AND LENDER EACH (A) AGREES NOT TO ELECT A TRIAL BY
JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS GUARANTY OR THE RELATIONSHIP
BETWEEN THE PARTIES AS GUARANTOR AND LENDER THAT IS TRIABLE OF RIGHT BY A JURY
AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE
EXTENT THAT ANY SUCH
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RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF
COMPETENT LEGAL COUNSEL.
ATTACHED EXHIBIT. The following Exhibit is attached to this Guaranty:
|__| Exhibit A Modifications to Guaranty
IN WITNESS WHEREOF, Guarantor has signed and delivered this Guaranty
or has caused this Guaranty to be signed and delivered by its duly authorized
representative.
[SIGNATURES AND ACKNOWLEDGMENTS]
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EXHIBIT A
MODIFICATIONS TO GUARANTY
The following modifications are made to the text of the Guaranty that precedes
this Exhibit:
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