GUARANTY
EXHIBIT 99.6
THIS GUARANTY (“Guaranty”) is made as of , 20 , by APARTMENT ASSETS, LLC, a Delaware
limited liability company (“Guarantor”) in favor of SECURED PRINCIPAL, LLC, a Delaware limited
liability company (“Lender”).
RECITALS:
A. LENDER HAS AGREED TO LOAN TO , A (“BORROWER”) THE
PRINCIPAL SUM OF ($ ) (“LOAN”).
B. THE LOAN SHALL BE EVIDENCED BY A PROMISSORY NOTE (“NOTE”) OF BORROWER DATED THE DATE OF
THIS GUARANTY AND PAYABLE TO THE ORDER OF LENDER IN THE PRINCIPAL AMOUNT OF THE LOAN.
C. GUARANTOR IS THE SOLE MEMBER OF BORROWER. BORROWER HAS ISSUED TO GUARANTOR A MEMBERSHIP
INTEREST IN BORROWER (THE “MEMBERSHIP INTEREST”) REPRESENTED BY A CERTIFICATE (THE “CERTIFICATE”).
AS SECURITY FOR GUARANTOR’S OBLIGATIONS UNDER THIS GUARANTY, GUARANTOR HAS GRANTED TO LENDER A
SECURITY INTEREST IN THE MEMBERSHIP INTEREST AND DELIVERED THE CERTIFICATE TO LENDER PURSUANT TO A
SECURITY AGREEMENT OF EVEN DATE MADE BY GUARANTOR, AS PLEDGOR, IN FAVOR OF LENDER, AS SECURED PARTY
(THE “SECURITY AGREEMENT”).
D. THE NOTE, THE SECURITY AGREEMENT AND ALL OTHER DOCUMENTS, INSTRUMENTS OR AGREEMENTS (OTHER
THAN AND SPECIFICALLY EXCLUDING, ANY CERTIFICATE AND INDEMNITY AGREEMENT REGARDING HAZARDOUS
SUBSTANCES) NOW IN EFFECT OR HEREAFTER ENTERED INTO IN CONNECTION WITH THE LOAN ARE REFERRED TO,
COLLECTIVELY, AS THE “LOAN DOCUMENTS.” NOTWITHSTANDING ANYTHING TO THE CONTRARY, NO CERTIFICATE AND
INDEMNITY AGREEMENT REGARDING HAZARDOUS SUBSTANCES SHALL BE A LOAN DOCUMENT AS THAT TERM IS USED IN
THIS GUARANTY.
E. THIS GUARANTY IS ONE OF THE LOAN DOCUMENTS.
THEREFORE, to induce Lender to enter into the Loan Documents and to make the Loan, and for other
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor
unconditionally guaranties and agrees as follows:
1. GUARANTY.
(a) Guaranty of Payment. Guarantor hereby unconditionally guaranties to Lender the
full and prompt payment of the Note when due, whether by acceleration or otherwise, with such
interest as may accrue thereon and such late fees and other charges as may be due in connection
therewith, either before or after maturity thereof.
(b) Guaranty of Performance. Guarantor hereby unconditionally guaranties to Lender
the full and prompt payment and performance of any and all obligations whatsoever of Borrower to
Lender under the terms of the Note whether such obligations now exist or arise hereafter.
(c) Guarantor Obligations. Guarantor does hereby agree that if the Note is not paid
by Borrower in accordance with its terms for any reason whatsoever, Guarantor will immediately make
such payments. Guarantor further agrees to pay Lender all expenses (including, without limitation,
reasonable attorneys’ fees) paid or incurred by Lender in endeavoring to collect all or any portion
of the indebtedness evidenced by the Note, to enforce any other obligations guarantied hereby, to
enforce any provisions of any of the Loan Documents, to protect any property granted as security,
or to enforce this Guaranty.
(d) Renewals and Extensions. The provisions of this Guaranty shall extend and be
applicable to all renewals, replacements, amendments, extensions, consolidations and modifications
of the Note, and any and all references
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herein to the Note shall be deemed to include any such renewals, replacements, amendments,
extensions, consolidations or modifications thereof.
(e) Liability of Guarantor. This is a guaranty of payment and performance and not of
collection. The liability of Guarantor under this Guaranty shall be direct and immediate and not
conditional or contingent upon the pursuit of any remedies against Borrower or any other person
(including, without limitation, other guarantors, if any), nor against any property (whether real
or personal), rights, estates and interests now or at any time hereafter securing the payment of
the Note whether held by Lender or by any person or entity on Lender’s behalf or for Lender’s
account (the “Collateral”). Guarantor waives any right to require that an action be brought
against Borrower or any other person or to require that resort be had to any Collateral or to any
balance of any deposit account or credit on the books of Lender in favor of Borrower or any other
person. In the event, on account of the Bankruptcy Code, as amended, or any other debtor relief
law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or
hereafter in effect, which may be or become applicable, Borrower shall be relieved of or fail to
incur any debt, obligation or liability as provided in the Note, Guarantor shall nevertheless be
fully liable therefor. In the event of a default under the Note which is not cured within any
applicable grace or cure period, Lender shall have the right to enforce its rights, powers and
remedies (including, without limitation, foreclosure of all or any portion of the collateral which
is granted or pledged to secure this Guaranty) thereunder or hereunder, in any order, and all
rights, powers and remedies available to Lender in such event shall be nonexclusive and cumulative
of all other rights, powers and remedies provided thereunder or hereunder or by law or in equity.
If the indebtedness and obligations guarantied hereby are partially paid or discharged by reason of
the exercise of any of the remedies available to Lender, this Guaranty shall nevertheless remain in
full force and effect, and Guarantor shall remain liable for all remaining indebtedness and
obligations guarantied hereby, even though any rights which Guarantor may have against Borrower may
be destroyed or diminished by the exercise of any such remedy; and if the indebtedness and
obligations guarantied hereby are otherwise partially paid or discharged for any reason, including
voluntary payment or prepayment, application of insurance proceeds or condemnation awards,
additional financing or refinancing, or sale of the Collateral or a portion thereof, with or
without the consent or cooperation of Lender, this Guaranty shall nevertheless remain in full force
and effect, and Guarantor shall remain liable for all remaining indebtedness and obligations
guarantied hereby.
2. REINSTATEMENT OF OBLIGATIONS. If at any time all or any part of any payment made
by the Borrower or Guarantor or received by Lender from the Borrower or Guarantor under or with
respect to the Note or this Guaranty is or must be rescinded or returned for any reason whatsoever
(including, but not limited to, the insolvency, bankruptcy or reorganization of Guarantor or
Borrower), then the obligations of Guarantor hereunder shall, to the extent of the payment
rescinded or returned, be deemed to have continued in existence, notwithstanding such previous
payment made by Borrower or Guarantor, or receipt of payment by Lender, and the obligations of
Guarantor hereunder shall continue to be effective or be reinstated, as the case may be, as to such
payment, all as though such previous payment by Borrower or Guarantor had never been made.
3. REMEDIES. If Guarantor fails to promptly perform its obligations under this
Guaranty, Lender may from time to time, and without first requiring performance by Borrower or
exhausting any or all security for the Loan, bring any action at law or in equity or both to compel
Guarantor to perform its obligations hereunder, and to collect in any such action compensation for
all loss, cost, damage, injury and expense sustained or incurred by Lender as a direct or indirect
consequence of the failure of Guarantor to perform its obligations together with interest thereon
at the rate of interest applicable to the principal balance of the Note.
4. RIGHTS OF LENDER. Guarantor authorizes Lender, without giving notice to Guarantor
or obtaining Guarantor’s consent and without affecting the liability of Guarantor, from time to
time to: (a) renew or extend all or any portion of Borrower’s obligations under the Note or any of
the other Loan Documents; (b) declare all sums owing to Lender under the Note and the other Loan
Documents due and payable upon the occurrence of an Event of Default (as defined in the Note) under
the Loan Documents; (c) make material changes in the dates specified for payments of any sums
payable in periodic installments under the Note or any of the other Loan Documents; (d) otherwise
modify, amend, supplement or replace from time to time the terms of any of the Loan Documents, (e)
take and hold security for the performance of Borrower’s obligations under the Note or the other
Loan Documents and exchange, enforce, waive and release any such security; (f) apply such security
and direct the order or manner of sale thereof as Lender in its discretion may determine; (g)
release, substitute or add any one or more endorsers of the Note or guarantors of Borrower’s
obligations under the Note or the other Loan Documents; (h) apply payments received by Lender from
Borrower to any obligations of Borrower to Lender, in such order as Lender shall determine in its
sole discretion, whether or not any such obligations are covered by this Guaranty; and (i) assign
this Guaranty in whole or in part.
5. GUARANTOR’S WAIVERS. Guarantor waives: (a) any defense based upon any legal
disability or other defense of Borrower, any other guarantor or other person, or by reason of the
cessation or limitation of the liability of
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Borrower from any cause other than full payment of all sums payable under the Note or any of
the other Loan Documents; (b) any defense based upon any lack of authority of the officers,
directors, partners or agents acting or purporting to act on behalf of Borrower or any principal of
Borrower or any defect in the formation of Borrower or any principal of Borrower; (c) any defense
based upon the application by Borrower of the proceeds of the Loan for purposes other than the
purposes represented by Borrower to Lender or intended or understood by Lender or Guarantor; (d)
all rights and defenses arising out of an election of remedies by Lender, even though that election
of remedies, such as a nonjudicial foreclosure with respect to security for a guarantied
obligation, has destroyed Guarantor’s rights of subrogation and reimbursement against Borrower by
the operation of Section 580d of the California Code of Civil Procedure or otherwise; (e) any
defense based upon Lender’s failure to disclose to Guarantor any information concerning Borrower’s
financial condition or any other circumstances bearing on Borrower’s ability to pay all sums
payable under the Note or any of the other Loan Documents; (f) any defense based upon any statute
or rule of law which provides that the obligation of a surety must be neither larger in amount nor,
in any other respect, more burdensome than that of a principal; (g) any defense based upon Lender’s
election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of
Section 1111(b)(2) of the Federal Bankruptcy Code or any successor statute; (h) any defense based
upon any borrowing or any grant of a security interest under Section 364 of the Federal Bankruptcy
Code; (i) presentment, demand, protest and notice of any kind; (j) the benefit of any statute of
limitations affecting the liability of Guarantor hereunder or the enforcement hereof; and (k) any
rights under California Code of Civil Procedure Sections 580a and 726(b), which provide, among
other things, that (i) a creditor must file a complaint for deficiency within three (3) months of a
nonjudicial foreclosure sale or judicial foreclosure sale, as applicable; (ii) a fair market value
hearing must be held; and (iii) the amount of the deficiency judgment shall be limited to the
amount by which the unpaid debt exceeds the fair market value of the security, but not more than
the amount by which the unpaid debt exceeds the sale price of the security. In addition, Guarantor
waives all rights and defenses that Guarantor may have because Borrower’s debt is secured by real
property. This means, among other things: (l) Lender may collect from Guarantor without first
foreclosing on any real or personal property collateral pledged by Borrower; and (m) if Lender
forecloses on any real property collateral pledged by Borrower, then (i) the amount of the debt may
be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price, and (ii) Lender may collect from Guarantor even if
Lender, by foreclosing on the real property collateral, has destroyed any right Guarantor may have
to collect from Borrower. The foregoing sentence is an unconditional and irrevocable waiver of any
rights and defenses Guarantor may have because Borrower’s debt is secured by real property. These
rights and defenses being waived by Guarantor include, but are not limited to, any rights or
defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
Without limiting the generality of the foregoing or any other provision hereof, Guarantor also
waives, to the extent permitted by law, any and all rights and defenses which might otherwise be
available to Guarantor under California Civil Code Sections 2899 and 3433 and 2787 to 2855,
inclusive, or any of such sections. Finally, Guarantor agrees that the payment of all sums payable
under the Note or any of the other Loan Documents or any part thereof or other act which tolls any
statute of limitations applicable to the Note or the other Loan Documents shall similarly operate
to toll the statute of limitations applicable to Guarantor’s liability hereunder.
6. GUARANTOR’S WARRANTIES. Guarantor warrants and acknowledges that: (a) Lender would
not make the Loan but for this Guaranty; (b) there are no conditions precedent to the effectiveness
of this Guaranty; (c) Guarantor has established adequate means of obtaining from sources other than
Lender, on a continuing basis, financial and other information pertaining to Borrower’s financial
condition, the assets owned by Borrower and Borrower’s activities relating thereto and the status
of Borrower’s performance of obligations under the Loan Documents, and Guarantor agrees to keep
adequately informed from such means of any facts, events or circumstances which might in any way
affect Guarantor’s risks hereunder and Lender has made no representation to Guarantor as to any
such matters; (d) the most recent financial statements of Guarantor previously delivered to Lender
are true and correct in all respects, have been prepared in accordance with generally accepted
accounting principles consistently applied (or other principles acceptable to Lender) and fairly
present the financial condition of Guarantor as of the respective dates thereof, and no material
adverse change has occurred in the financial condition of Guarantor since the respective dates
thereof; (e) Guarantor has not and will not, without the prior written consent of Lender, sell,
lease, assign, encumber, hypothecate, transfer or otherwise dispose of all or substantially all of
Guarantor’s assets, or any interest therein, other than in the ordinary course of Guarantor’s
business; and (f) Guarantor shall not later than thirty (30) days from written request from Lender,
provide Lender with year-end financial statements of such Guarantor, such statements to be prepared
in a form and in accordance with accounting principles reasonably acceptable to Lender.
7. SUBORDINATION. Guarantor subordinates all present and future indebtedness owing by
Borrower to Guarantor to the obligations at any time owing by Borrower to Lender under the Note and
the other Loan Documents. Guarantor agrees that, as long as this Guaranty is in effect, Guarantor
will not take any action or initiate any proceedings, judicial or otherwise, to enforce Guarantor’s
rights or remedies with respect to any such indebtedness, including, without limitation, any action
to enforce remedies with respect to any defaults under such indebtedness or to any collateral
securing such indebtedness or to obtain any judgment or prejudgment remedy against Borrower or any
such collateral. Guarantor also agrees that it shall not commence or join with any other creditor
or creditors of Borrower in commencing any bankruptcy,
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reorganization or insolvency proceedings against Borrower. Guarantor further agrees not to
assign all or any part of such indebtedness unless Lender is given prior notice and such assignment
is expressly made subject to the terms of this Guaranty. If Lender so requests, (a) all
instruments evidencing such indebtedness shall be duly endorsed and delivered to Lender, (b) all
security for such indebtedness shall be duly assigned and delivered to Lender, (c) such
indebtedness shall be enforced, collected and held by Guarantor as trustee for Lender and shall be
paid over to Lender on account of the Loan but without reducing or affecting in any manner the
liability of Guarantor under the other provisions of this Guaranty, and (d) Guarantor shall
execute, file and record such documents and instruments and take such other action as Lender deems
necessary or appropriate to perfect, preserve and enforce Lender’s rights in and to such
indebtedness and any security therefor. If Guarantor fails to take any such action, Lender, as
attorney-in-fact for Guarantor, is hereby authorized to do so in the name of Guarantor. The
foregoing power of attorney is coupled with an interest and cannot be revoked.
8. BANKRUPTCY OF BORROWER. In any bankruptcy or other proceeding in which the filing
of claims is required by law, Guarantor shall file all claims which Guarantor may have against
Borrower relating to any indebtedness of Borrower to Guarantor and shall assign to Lender all
rights of Guarantor thereunder. If Guarantor does not file any such claim, Lender, as
attorney-in-fact for Guarantor, is hereby authorized to do so in the name of Guarantor or, in
Lender’s discretion, to assign the claim to a nominee and to cause proof of claim to be filed in
the name of Lender’s nominee. The foregoing power of attorney is coupled with an interest and
cannot be revoked. Lender or its nominee shall have the right, in its reasonable discretion, to
accept or reject any plan proposed in such proceeding and to take any other action which a party
filing a claim is entitled to do. In all such cases, whether in administration, bankruptcy or
otherwise, the person or persons authorized to pay such claim shall pay to Lender the amount
payable on such claim and, to the full extent necessary for that purpose, Guarantor hereby assigns
to Lender all of Guarantor’s rights to any such payments or distributions; provided, however,
Guarantor’s obligations hereunder shall not be satisfied except to the extent that Lender receives
cash by reason of any such payment or distribution. If Lender receives anything hereunder other
than cash, the same shall be held as collateral for amounts due under this Guaranty. If all or any
portion of the obligations guarantied hereunder are paid or performed, the obligations of Guarantor
hereunder shall continue and shall remain in full force and effect in the event that all or any
part of such payment or performance is avoided or recovered directly or indirectly from Lender as a
preference, fraudulent transfer or otherwise under the Bankruptcy Code or other similar laws,
irrespective of (a) any notice of revocation given by Guarantor prior to such avoidance or
recovery, and (b) full payment and performance of all of the indebtedness and obligations evidenced
and secured by the Loan Documents.
9. DISCLOSURE OF INFORMATION; PARTICIPATIONS. Guarantor agrees that Lender may elect,
at any time, to sell, assign, participate or securitize all or any portion of Lender’s rights and
obligations under the Loan Documents, and that any such sale, assignment, participation or
securitization may be to one or more financial institutions or other entities, to private
investors, and/or into the public securities marketplace, at Lender’s sole discretion. Guarantor
further agrees that Lender may disseminate to any such actual or potential purchaser(s),
assignee(s) or participant(s) all documents and information (including, without limitation, all
financial information) which has been or is hereafter provided to or known to Lender with respect
to: (a) the property owned by Borrower and its operation; (b) any party connected with the Loan
(including, without limitation, the Guarantor, the Borrower, any partner of Borrower, any
constituent partner of Borrower, any guarantor and any nonborrower trustor); and/or (c) any lending
relationship other than the Loan which Lender may have with any party connected with the Loan. In
the event of any such sale, assignment, participation, or securitization, Lender and parties to the
same shall share in the rights and obligations of Lender set forth in the Loan Documents as and to
the extent they shall agree among themselves. In connection with any such sale, assignment,
participation, or securitization, Guarantor further agrees that this Guaranty shall be sufficient
evidence of the obligations of Guarantor to each purchaser, assignee, or participant, and upon
request by Lender, Guarantor shall, within fifteen (15) days after request by Lender, (i) deliver
to Lender and any other party designated by Lender an estoppel certificate verifying, for the
benefit of Lender and any other party designated by Lender, the status and the terms and provisions
of this Guaranty in form and substance reasonably acceptable to Lender, and (ii) enter into such
amendments or modifications to this Guaranty as may be reasonably required in order to facilitate
any such sale, assignment, participation or securitization without impairing Guarantor’s rights or
increasing Guarantor’s obligations hereunder. The indemnity obligations of Guarantor under this
Guaranty shall also apply with respect to any purchaser, assignee or participant.
10. ADDITIONAL, INDEPENDENT AND UNSECURED OBLIGATIONS. The obligations of Guarantor
hereunder shall be in addition to and shall not limit or in any way affect the obligations of
Guarantor under any other existing or future guaranties unless said other guaranties are expressly
modified or revoked in writing. This Guaranty is independent of the obligations of Borrower under
the Note, the Security Agreement and the other Loan Documents. Guarantor agrees that nothing
contained in this Guaranty shall prevent Lender from suing to collect on the Note or from
exercising concurrently or successively any rights available to it at law and/or in equity or under
any of the Loan Documents, and that the exercise of any of the aforesaid rights shall not
constitute a legal or equitable discharge of Guarantor. Guarantor hereby authorizes and empowers
Lender to exercise, in its sole discretion, any rights and remedies, or any combination thereof,
which may then be available, since it is the intent and purpose of Guarantor that the obligations
hereunder shall be absolute, independent and
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unconditional under any and all circumstances. Lender may bring a separate action to enforce
the provisions hereof against Guarantor without taking action against Borrower or any other party
or joining Borrower or any other party as a party to such action.
11. ATTORNEYS’ FEES; ENFORCEMENT. If any attorney is engaged by Lender to enforce or
defend any provision of this Guaranty, or any of the other Loan Documents, or as a consequence of
any Event of Default under the Loan Documents, with or without the filing of any legal action or
proceeding, Guarantor shall pay to Lender, immediately upon demand all reasonable attorneys’ fees
and costs incurred by Lender in connection therewith, together with interest thereon from the date
of such demand until paid at the rate of interest applicable to the principal balance of the Note
as specified therein.
12. RULES OF CONSTRUCTION. The word “Borrower” as used herein shall include both the
named Borrower and any other person at any time assuming or otherwise becoming primarily liable for
all or any part of the obligations of the named Borrower under the Note and the other Loan
Documents. The term “person” as used herein shall include any individual, company, trust or other
legal entity of any kind whatsoever. If this Guaranty is executed by more than one person, the
term “Guarantor” shall include all such persons. When the context and construction so require, all
words used in the singular herein shall be deemed to have been used in the plural and vice versa.
All headings appearing in this Guaranty are for convenience only and shall be disregarded in
construing this Guaranty.
13. CREDIT REPORTS. Each legal entity and individual obligated on this Guaranty
hereby authorizes Lender to order and obtain, from a credit reporting agency of Lender’s choice, a
third party credit report on such legal entity and individual.
14. GOVERNING LAW. This Guaranty shall be governed by, and construed in accordance
with, the laws of the State of California, except to the extent preempted by Federal laws.
Guarantor and all persons and entities in any manner obligated to Lender under this Guaranty
consent to the jurisdiction of any Federal or State Court within the State of California having
proper venue and also consent to service of process by any means authorized by California or
Federal law.
15. MISCELLANEOUS. The provisions of this Guaranty will bind and benefit the heirs,
executors, administrators, legal representatives, nominees, successors and assigns of Guarantor and
Lender. The liability of all persons and entities who are in any manner obligated hereunder shall
be joint and several. If any provision of this Guaranty shall be determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable, that portion shall be deemed
severed from this Guaranty and the remaining parts shall remain in full force as though the
invalid, illegal or unenforceable portion had never been part of this Guaranty.
16. SURVIVAL. This Guaranty shall be deemed to be continuing in nature and shall
remain in full force and effect and shall survive the exercise of any remedy by Lender under the
Deed of Trust or any of the other Loan Documents, including, without limitation, any foreclosure or
deed in lieu thereof.
17. ADDITIONAL PROVISIONS. Such additional terms, covenants and conditions as may be
set forth on any exhibit executed by Guarantor and attached hereto which recites that it is an
exhibit to this Guaranty are incorporated herein by this reference.
18. ENFORCEABILITY. Guarantor hereby acknowledges that: (a) the obligations
undertaken by Guarantor in this Guaranty are complex in nature, and (b) numerous possible defenses
to the enforceability of these obligations may presently exist and/or may arise hereafter, and (c)
as part of Lender’s consideration for entering into this transaction, Lender has specifically
bargained for the waiver and relinquishment by Guarantor of all such defenses, and (d) Guarantor
has had the opportunity to seek and receive legal advice from legal counsel. Given all of the
above, Guarantor does hereby represent and confirm to Lender that Guarantor is fully informed
regarding, and that Guarantor does thoroughly understand: (i) the nature of such possible defenses,
and (ii) the circumstances under which such defenses may arise, and (iii) the benefits which such
defenses might confer upon Guarantor, and (iv) the legal consequences to Guarantor of waiving such
defenses. Guarantor acknowledges that Guarantor makes this Guaranty with the intent that this
Guaranty and all of the informed waivers herein shall each and all be fully enforceable by Lender,
and that Lender is induced to enter into this transaction in material reliance upon the presumed
full enforceability thereof.
19. WAIVER OF JURY TRIAL. TO THE EXTENT NOW OR HEREAFTER PERMITTED BY LAW, LENDER AND
GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS GUARANTY, OR ANY COURSE OR CONDUCT,
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COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF LENDER OR GUARANTOR.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO MAKE THIS LOAN TO BORROWER.
20. SECURITY AND NONRECOURSE. This Note is secured by the Security Agreement granted
by Guarantor in favor of Lender. In the event of any default under the Note, or the Security
Agreement , Lender shall neither seek nor take any deficiency or monetary judgment against
Guarantor. It is agreed, acknowledged and understood, however, that nothing contained in this
Section 20 shall in any manner or way release, affect or impair: (a) the existence of the debt
evidenced by the Note; (b) the payment and performance obligations of Guarantor under the terms of
this Guaranty, subject to the limitation set forth in this Section 20 on a deficiency or monetary
judgment against Guarantor; (c) the enforceability of the liens and security interests created by
the Security Agreement; (d) Lender’s rights to protect its security under the Security Agreement
and at law; and (e) the right of Lender to recover from Guarantor personally (or execute upon or
recover other property of Guarantor in lieu thereof): (i) an amount equal to any rents, security
deposits or other income received by Guarantor from the tenants of the real property owned by the
Borrower or income from the collateral described in the Security Agreement, after a default under
the Note or the Security Agreement; (ii) an amount necessary to repair any damage to the real or
personal property owned by the Borrower, which is caused by the willful or wanton act or omission
of Guarantor or Borrower; (iii) an amount equal to any and all of the Lender’s costs, expenses,
damages, or liabilities, including without limitation, all reasonable attorneys’ fees, directly or
indirectly arising out of or attributable to the use, generation, storage, release, threatened
release, discharge, disposal, or presence on, under, or about the property owned by the Borrower,
or any materials, wastes, or substances defined or classified as hazardous or toxic under
applicable federal, state or local laws or regulations; (iv) an amount equal to any condemnation or
insurance proceeds, or other similar funds or payments attributable to the property owned by the
Borrower; (v) any tenant security deposits, advances or prepaid rents, or other similar sums that
have been paid to Borrower or held for the account of Borrower by any other person or entity in
connection with the operation of the property owned by Borrower and that have not either been
applied or refunded in accordance with the relevant lease; or (vi) the right of Lender to recover
from Guarantor any deficiency or monetary judgment for any loss, liability or damage arising out of
or based upon any fraud or willful misrepresentation of a material fact by Guarantor or Borrower.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date appearing on the first page
of this Guaranty.
| “GUARANTOR” APARTMENT ASSETS, LLC, a Delaware limited liability company |
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| By: | ||||
| Name: | ||||
| Its: | ||||
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