Exhibit 10.31
FORM OF PAYMENT GUARANTY
(CASDEN GUARANTORS)
This PAYMENT GUARANTY ("GUARANTY") is made as of March 11,
2002, by the undersigned entities (each a "GUARANTOR") in favor of BANK OF
AMERICA, N.A. ("BANK OF AMERICA"), as Administrative Agent for itself and the
lenders ("LENDERS") from time to time party to the Credit Agreement (as
hereinafter defined) (in such capacity, "ADMINISTRATIVE AGENT").
Factual Background
The Lenders have made or intend to make a $400,000,000 credit
facility available to Apartment Investment and Management Company, a Maryland
corporation ("REIT"), AIMCO Properties L.P., a Delaware limited partnership
("AIMCO"), AIMCO/Bethesda Holdings, Inc., a Delaware corporation
("AIMCO/BETHESDA"), and NHP Management Company, a District of Columbia
corporation ("NHP MANAGEMENT") (the REIT, AIMCO, AIMCO/Bethesda and NHP
Management are collectively referred to as "BORROWERS"), in accordance with the
Fourth Amended and Restated Credit Agreement (the "CREDIT AGREEMENT"), dated as
of the date hereof, by and among Borrowers, Bank of America (as Administrative
Agent), Fleet National Bank (as Syndication Agent), First Union National Bank
(as Documentation Agent), Banc of America Securities LLC and Fleet Securities
Inc., as Co-Lead Arrangers and Banc of America Securities LLC, as Sole Book
Manager, and the other Lenders from time to time party thereto. In connection
with the Credit Agreement, the Borrowers have obtained this Guaranty from the
Guarantors. Capitalized terms used but not defined herein will have the meanings
set forth in the Credit Agreement. As used herein, the term "FACILITY" shall
refer individually to each of the credit facilities available to the Borrowers
under the Credit Agreement.
Guaranty
1. Guaranty of Loan.
(a) Absolute Guaranty. Each Guarantor absolutely,
unconditionally and irrevocably guaranties to Administrative Agent and the
Lenders the full payment of the Indebtedness (as hereinafter defined), and
unconditionally agrees to pay to Administrative Agent and the Lenders the full
amount of the Indebtedness. This is a guaranty of payment, not of collection. If
Borrowers default in the payment when due of the Indebtedness or any part of it,
each Guarantor will in lawful money of the United States pay to Administrative
Agent and the Lenders, on demand, all sums due and owing on the Indebtedness,
including all interest, charges, fees and other sums, costs and expenses.
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(b) Anything contained in this Guaranty to the contrary
notwithstanding, the obligations of each Guarantor under this Guaranty shall be
limited to a maximum aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law (collectively, the "FRAUDULENT
TRANSFER LAWS"), in each case after giving effect to all other liabilities of
such Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (x) in respect of intercompany indebtedness to Borrowers or other
affiliates of Borrowers to the extent that such indebtedness would be discharged
in an amount equal to the amount paid by such Guarantor hereunder and (y) under
any guaranty of subordinated Indebtedness which guaranty contains a limitation
as to maximum amount similar to that set forth in this Section 1, pursuant to
which the liability of such Guarantor hereunder is included in the liabilities
taken into account in determining such maximum amount) and after giving effect
as assets to the value (as determined under the applicable provisions of the
Fraudulent Transfer Laws) of any rights to subrogation, reimbursement,
indemnification or contribution of such Guarantor pursuant to applicable law or
pursuant to the terms of any agreement.
2. Loan. In this Guaranty, the term "Indebtedness" is broadly
defined to mean and include all primary, secondary, direct, indirect, fixed and
contingent obligations of Borrowers to pay principal, interest (including
post-petition interest in any proceeding under debtor relief laws at the rate or
in the amount otherwise applicable thereto whether or not such interest is an
allowed claim in any such proceeding), prepayment charges, breakage costs, late
charges, loan fees and any other fees, charges, sums, costs and expenses that
may be owing at any time under the Loan Documents, as any or all of such
obligations may from time to time be modified, amended, extended or renewed. If
the amount outstanding under the Indebtedness is determined by a court of
competent jurisdiction, that determination shall be conclusive and binding on
each Guarantor, regardless of whether such Guarantor was a party to the
proceeding in which the determination was made or not.
3. Rights of Administrative Agent and the Lenders. Each
Guarantor authorizes Administrative Agent or any Lender to perform any or all of
the following acts at any time in its sole discretion, all without notice to
such Guarantor and without affecting such Guarantor's obligations under this
Guaranty:
(a) Administrative Agent or the Requisite Lenders may alter
any terms of the Indebtedness or any part of it, including renewing,
compromising, extending or accelerating, or otherwise changing the time
for payment of, or increasing or decreasing the rate of interest on,
the Indebtedness or any part of it.
(b) Administrative Agent or any Lender may take and hold
security for the Indebtedness or this Guaranty, accept additional or
substituted security for either, and subordinate, exchange, enforce,
waive, release, compromise, fail to perfect and sell or otherwise
dispose of any such security in accordance with the terms of the
Indebtedness.
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(c) Administrative Agent or any Lender may direct the order
and manner of any sale of all or any part of any security now or later
to be held for the Indebtedness or this Guaranty, and Administrative
Agent or any Lender may also bid at any such sale.
(d) Administrative Agent or any Lender may apply any payments
or recoveries from Borrowers, Guarantors or any other source, and any
proceeds of any security, to Borrowers' obligations under the Loan
Documents in such manner, order and priority as Administrative Agent or
such Lender may elect, whether or not those obligations are guarantied
by this Guaranty or secured at the time of the application.
(e) Administrative Agent or any Lender may release Borrowers
of their liability for the Indebtedness or any part of it.
(f) Administrative Agent or any Lender may substitute, add or
release any one or more Guarantors, other guarantors or endorsers.
(g) In addition to the Indebtedness, Administrative Agent or
any Lender may extend other credit to Borrowers, and may take and hold
security for the credit so extended, all without affecting any
Guarantor's liability under this Guaranty.
4. Guaranty to be Absolute. Each Guarantor expressly agrees
that until the Indebtedness is paid and performed in full and each and every
term, covenant and condition of this Guaranty is fully performed, such Guarantor
shall not be released by or because of:
(a) Any act or event (other than payment and performance in
full of the Indebtedness) which might otherwise discharge, reduce,
limit or modify such Guarantor's obligations under this Guaranty;
(b) Any waiver, extension, modification, forbearance, delay or
other act or omission of Administrative Agent or any Lender, or its
failure to proceed promptly or otherwise as against Borrowers, any
Guarantor or any security;
(c) Any action, omission or circumstance that might increase
the likelihood that such Guarantor may be called upon to perform under
this Guaranty or that might affect the rights or remedies of such
Guarantor as against Borrowers;
(d) Any dealings occurring at any time between Borrowers and
Administrative Agent or any Lender, whether relating to the
Indebtedness or otherwise; or
(e) Any action of Administrative Agent or any Lender described
in Section 3 above.
Each Guarantor hereby acknowledges that absent this Section 4,
such Guarantor might have a defense to the enforcement of this Guaranty as a
result of one or more of the foregoing acts, omissions, agreements, waivers or
matters. Each Guarantor hereby expressly waives and surrenders any defense to
its liability under this Guaranty based upon any of the foregoing acts,
omissions, agreements, waivers or matters. It is the purpose and intent of this
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Guaranty that the obligations of each Guarantor under it shall be absolute and
unconditional under any and all circumstances.
5. Guarantors' Waivers. Each Guarantor waives:
(a) All statutes of limitations as a defense to any action or
proceeding brought against such Guarantor by Administrative Agent or
any Lender, to the fullest extent permitted by law;
(b) Any right it may have to require Administrative Agent or
any Lender to proceed against Borrowers, proceed against or exhaust any
security held from Borrowers, or pursue any other remedy in
Administrative Agent's or any Lender's power to pursue;
(c) Any defense based on any claim that such Guarantor's
obligations exceed or are more burdensome than those of Borrowers;
(d) Any defense based on: (i) any legal disability of
Borrowers, (ii) any release, discharge, modification, impairment or
limitation of the liability of Borrowers to Administrative Agent or any
Lender from any cause, whether consented to by Administrative Agent or
any Lender or arising by operation of law or from any bankruptcy or
other voluntary or involuntary proceeding, in or out of court, for the
adjustment of debtor-creditor relationships ("Insolvency Proceeding"),
and (iii) any rejection or disaffirmance of the Indebtedness, or any
part of it, or any security held for it, in any such Insolvency
Proceeding;
(e) Any defense based on any action taken or omitted by
Administrative Agent or any Lender in any Insolvency Proceeding
involving Borrowers, including any election to have Administrative
Agent's or that Lender's claim allowed as being secured, partially
secured or unsecured, any extension of credit by Lender to Borrowers in
any Insolvency Proceeding, and the taking and holding by Administrative
Agent or any Lender of any security for any such extension of credit;
(f) All presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor,
notices of acceptance of this Guaranty and of the existence, creation,
or incurring of new or additional indebtedness, and demands and notices
of every kind except for any demand or notice by Administrative Agent
or any Lender to such Guarantor expressly provided for in Section 1;
(g) Any defense based on or arising out of any defense that
Borrowers may have to the payment or performance of the Indebtedness or
any part of it (other than indefeasible payment in full); and
(h) Any defense based on or arising out of any action of
Administrative Agent or any Lender described in Sections 3 or 4 above.
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6. Waivers of Subrogation and Other Rights.
(a) During the existence of an Event of Default by Borrowers,
Administrative Agent or any Lender, without prior notice to or consent
of any Guarantor, may elect to: (i) foreclose either judicially or
nonjudicially against any real or personal property security it may
hold for the Indebtedness, (ii) accept a transfer of any such security
in lieu of foreclosure, (iii) compromise or adjust the Indebtedness or
any part of it or make any other accommodation with Borrowers or
Guarantors, or (iv) exercise any other remedy against Borrowers or any
security. No such action by Administrative Agent or any Lender shall
release or limit the liability of Guarantors, who shall remain liable
under this Guaranty after the action, even if the effect of the action
is to deprive Guarantors of any subrogation rights, rights of
indemnity, or other rights to collect reimbursement from Borrowers for
any sums paid to Administrative Agent or any Lender, whether
contractual or arising by operation of law or otherwise. Each Guarantor
expressly agrees that under no circumstances shall it be deemed to have
any right, title, interest or claim in or to any real or personal
property to be held by Administrative Agent or any Lender or any third
party after any foreclosure or transfer in lieu of foreclosure of any
security for the Indebtedness.
(b) Regardless of whether any Guarantor may have made any
payments to any Lender, each Guarantor hereby waives: (i) all rights of
subrogation, all rights of indemnity, and any other rights to collect
reimbursement from Borrowers for any sums paid to Administrative Agent
or any Lender, whether contractual or arising by operation of law
(including the United States Bankruptcy Code or any successor or
similar statute) or otherwise, (ii) all rights to enforce any remedy
that Lender may have against Borrowers, and (iii) all rights to
participate in any security now or later to be held by Administrative
Agent or any Lender for the Indebtedness, in each case until the full
and indefeasible payment and performance of all Indebtedness, and all
obligations of the Guarantors hereunder.
(c) Each Guarantor waives all rights and defenses arising out
of an election of remedies by the Administrative Agent or any Lender,
even though that election of remedies may affect such Guarantor's
rights of subrogation and reimbursement against the Borrowers by the
operation of law or otherwise. In addition, each Guarantor waives all
rights and defenses that such Guarantor may have because the Borrowers'
indebtedness is secured by real property. This means, among other
things, that Administrative Agent and the Lenders may collect from such
Guarantor without first foreclosing on any real or personal property
collateral pledged by the Borrowers.
7. Revival and Reinstatement. If Administrative Agent or any
Lender is required to pay, return or restore to Borrowers or any other person
any amounts previously paid on the Indebtedness because of any Insolvency
Proceeding of Borrowers, any stop notice or any other reason, the obligations of
Guarantors shall be reinstated and revived and the rights of Administrative
Agent and such Lender shall continue with regard to such amounts, all as though
they had never been paid.
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8. Information Regarding Borrowers. Before signing this
Guaranty, each Guarantor investigated the financial condition and business
operations of Borrowers and such other matters as such Guarantor deemed
appropriate to assure itself of Borrowers' ability to discharge their
obligations under the Loan Documents. Each Guarantor assumes full responsibility
for that due diligence, as well as for keeping informed of all matters that may
affect Borrowers' ability to pay and perform their obligations to the
Administrative Agent and the Lenders. Neither Administrative Agent nor any
Lender has any duty to disclose to any Guarantor any information which such
party may have or receive about Borrowers' financial condition, business
operations, or any other circumstances bearing on their ability to perform.
9. Subordination. Any rights of Guarantors whether now
existing or later arising, to receive payment on account of any indebtedness
(including interest) owed to any of them by Borrowers or any Subsidiary thereof
or to receive any payment from Borrowers or any such Subsidiary other than those
payments or distributions permitted under Sections 7.07 and 7.10 of the Credit
Agreement shall at all times be subordinate as to lien and time of payment and
in all other respects to the full and prior repayment of the Indebtedness. No
Guarantor shall be entitled to enforce or receive payment of any sums hereby
subordinated until the Indebtedness has been paid and performed in full and any
such sums received in violation of this Guaranty shall be received by such
Guarantor in trust for the Administrative Agent and the Lenders.
10. Financial Information. Each Guarantor shall keep true and
correct financial books and records, using generally accepted accounting
principles which are applicable to the circumstances as of the date of
determination, or such other accounting principles as the Requisite Lenders in
their reasonable judgment may find acceptable from time to time. Each Guarantor
represents, warrants and covenants to Administrative Agent and the Lenders that
all financial information with respect to such Guarantor delivered or to be
delivered to Administrative Agent and the Lenders by the Borrowers with respect
to such Guarantor under Section 6.01 of the Credit Agreement is or shall be true
and correct and fairly presents or will fairly present the financial position of
such Guarantor for the applicable period. Each Guarantor shall promptly provide
Administrative Agent and the Lenders with any additional audited financial
information that such Guarantor may obtain, and such other information
concerning its affairs and properties as Administrative Agent or any Lender may
reasonably request, including, without limitation, signed copies of any tax
returns if requested by Administrative Agent or the Lenders.
11. Guarantors' Representations and Warranties. Each Guarantor
represents and warrants that:
(a) All financial statements delivered to Administrative Agent
or the Lenders were or will be prepared in accordance with generally
accepted accounting principles, which are applicable to the
circumstances as of the date of determination, or such other accounting
principles as may be acceptable to the Requisite Lenders at the time of
their preparation;
(b) There has been no material adverse change in such
Guarantor's financial condition since the dates of the statements most
recently furnished to Administrative Agent and the Lenders; and
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(c) All representations and warranties given on behalf of or
with respect to such Guarantor contained in Section 5 of the Credit
Agreement and in any other Loan Document or certification made in
connection with the Credit Agreement are true and correct.
12. Covenants of Guarantors. Each Guarantor covenants and
agrees that it shall comply with and perform all covenants given on behalf of or
with respect to such Guarantor (whether expressly or as a Subsidiary) contained
in Sections 6 and 7 of the Credit Agreement and in all other Loan Documents.
13. Intentionally Omitted.
14. Intentionally Omitted.
15. Authorization; No Violation. Each Guarantor is authorized
to execute, deliver and perform under this Guaranty, which is a valid, binding,
and enforceable obligation of such Guarantor in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditor's rights
generally. The execution, delivery and performance of this Guaranty are not in
violation of any applicable law, regulation or ordinance, or any order or ruling
of any court or governmental agency applicable to such Guarantor. The Guaranty
does not conflict with, or constitute a breach or default under, any agreement
to which such Guarantor is a party.
16. Additional and Independent Obligations. Each Guarantor's
obligations under this Guaranty are in addition to its obligations under any
future guaranties, each of which shall remain in full force and effect until it
is expressly modified or released in a writing signed by Administrative Agent
and consented to by the Lenders. Each Guarantor's obligations under this
Guaranty are independent of those of Borrowers on the Indebtedness.
Administrative Agent or the Lenders may bring a separate action, or commence a
separate arbitration proceeding against each Guarantor without first proceeding
against Borrowers, any other person or any security that Administrative Agent or
any Lender may hold, and without pursuing any other remedy. None of
Administrative Agent's or any Lender's rights under this Guaranty shall be
exhausted by any action by Administrative Agent or any Lender until the
Indebtedness has been paid and performed in full in cash.
17. No Waiver; Consents; Cumulative Remedies. Each waiver by
Administrative Agent or the Lenders must be in writing, and no waiver shall be
construed as a continuing waiver. No waiver shall be implied from Administrative
Agent's or any Lender's delay in exercising or failure to exercise any right or
remedy against Borrowers, any Guarantor or any security. Consent by
Administrative Agent or the Lenders to any act or omission by Borrowers or any
Guarantor shall not be construed as a consent to any other or subsequent act or
omission, or as a waiver of the requirement for Administrative Agent's or the
Lenders' consent to be obtained in any future or other instance. All remedies of
Administrative Agent and each Lender against Borrowers and Guarantors are
cumulative.
18. No Release. Except as otherwise provided in Section 1, no
Guarantor shall be released, in whole or in part, from its obligations under
this Guaranty except by a writing
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signed by Administrative Agent and the requisite consent of Lenders as
specifically required under the Credit Agreement, if any.
19. Heirs, Successors and Assigns; Participations. The terms
of this Guaranty shall bind and benefit the heirs, legal representatives,
successors and assigns of Administrative Agent, the Lenders and Guarantors;
provided, however, that no Guarantor may assign this Guaranty, or assign or
delegate any of its rights or obligations under this Guaranty, without the prior
written consent of Administrative Agent in each instance. Without notice to or
the consent of Guarantors, Administrative Agent and any Lender may disclose any
and all information in its possession concerning Guarantors, this Guaranty and
any security for this Guaranty to any actual or prospective purchaser of any
securities issued or to be issued by Administrative Agent or such Lender, and to
any actual or prospective purchaser or assignee of any participation or other
interest in the Indebtedness and this Guaranty.
20. Notices.
(a) Delivery. All notices, requests and other communications
provided for hereunder shall be in writing (including, unless the
context expressly otherwise provides, telegraphic, telex, facsimile
transmission or cable communication) and mailed, telegraphed, telexed
or delivered to the recipient's address specified on the signature
pages hereof, or to such other address as shall be designated by such
party in a written notice to the other party.
(b) Receipt. All such notices and communications shall, when
transmitted by overnight delivery, telegraphed, telecopied by
facsimile, telexed or cabled, be effective when delivered for overnight
delivery or to the telegraph company, transmitted by telecopier,
confirmed by telex answerback or delivered to the cable company,
respectively, or if delivered, upon delivery.
(c) Reliance. Administrative Agent and each Lender shall be
entitled to rely on the authority of any person purporting to be a
person authorized by Guarantors to give such notice, and neither
Administrative Agent nor any Lender shall have any liability to any
Guarantor or any other person on account of any action taken or not
taken by Administrative Agent or such Lender in reliance upon such
telephonic or facsimile notice. The obligation of each Guarantor
hereunder shall not be affected in any way or to any extent by any
failure by Lender to receive written confirmation of any telephonic or
facsimile notice or the receipt by Administrative Agent or a Lender of
a confirmation which is at variance with the terms understood by
Administrative Agent or such Lender to be contained in the telephonic
or facsimile notice.
21. Rules of Construction. In this Guaranty, the word
"Borrowers" includes both the named Borrowers and any other person who at any
time assumes or otherwise becomes primarily liable for all or any part of the
obligations of the named Borrowers on the Indebtedness. If this Guaranty is
executed by more than one person, the word "Guarantors" includes all such
persons. The word "include(s)" means "include(s), without limitation," and the
word "including" means "including, but not limited to." When the context and
construction so require, all words used in the singular shall be deemed to have
been used in the plural and vice
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versa. No listing of specific instances, items or matters in any way limits the
scope or generality of any language of this Guaranty. All headings appearing in
this Guaranty are for convenience only and shall be disregarded in construing
this Guaranty.
22. Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of California, without
regard to its choice of law rules.
23. Costs and Expenses. If any lawsuit or arbitration is
commenced which arises out of, or which relates to this Guaranty, the Loan
Documents or the Indebtedness, the prevailing party shall be entitled to recover
from each other party such sums as the court or arbitrator may adjudge to be
reasonable attorneys' fees (including allocated costs for services of in-house
counsel) in the action or proceeding, in addition to costs and expenses
otherwise allowed by law. In all other situations, including any Insolvency
Proceeding, the Guarantors agree to pay all of the Administrative Agent's and
each Lender's costs and expenses, including attorneys' fees (including allocated
costs for services of the Administrative Agent's and each Lender's in-house
counsel) which may be incurred in any effort to collect or enforce the
Indebtedness or any part of it or any term of this Guaranty. Without limiting
any rights of the Administrative Agent or Lenders under the Credit Agreement,
all amounts of any kind due and payable under this Guaranty (whether for
principal, interest, and other costs under the Indebtedness, or for costs, fees,
and expenses for which the Guarantors are directly responsible hereunder, or
otherwise) shall accrue interest from the time the Administrative Agent or the
Lenders make demand therefor hereunder until paid in full in cash to such
Administrative Agent or the Lenders at the Base Rate, as defined in the Credit
Agreement, plus three percentage points (3%), except to the extent that any such
amounts are then accruing interest under the Indebtedness, in which case such
Base Rate plus 3% interest rate shall not be applied if the effect would be to
compound the interest to which such obligations are subject to under the
Indebtedness.
24. Covenant. Each Guarantor hereby agrees that it will make
dividend payments on its outstanding preferred stock with its excess cash to the
extent such cash is not required by such Guarantor for its business, consistent
with prudent business practices and its cash requirements.
25. Integration; Modifications. This Guaranty (a) integrates
all the terms and conditions mentioned in or incidental to this Guaranty, (b)
supersedes all oral negotiations and prior writings with respect to its subject
matter, and (c) is intended by each Guarantor, Administrative Agent and the
Lenders as the final expression of the agreement with respect to the terms and
conditions set forth in this Guaranty and as the complete and exclusive
statement of the terms agreed to by each Guarantor, Administrative Agent and the
Lenders. No representation, understanding, promise or condition shall be
enforceable against any party hereto unless it is contained in this Guaranty.
This Guaranty may not be modified except in a writing signed by both
Administrative Agent (with the consent of the Requisite Lenders) and each
Guarantor. No course of prior dealing, usage of trade, parol or extrinsic
evidence of any nature shall be used to supplement, modify or vary any of the
terms hereof. As between Administrative Agent and the Lenders only, nothing
contained in this Guaranty shall alter the rights and obligations among
Administrative Agent and the Lenders set forth in the Credit Agreement.
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26. Miscellaneous. The illegality or unenforceability of one
or more provisions of this Guaranty shall not affect any other provision. Time
is of the essence in the performance of this Guaranty by Guarantors.
27. Consent to Jurisdiction and Service of Process. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST GUARANTORS ARISING OUT OF OR RELATING TO
THIS GUARANTY, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE COURT
OF COMPETENT JURISDICTION IN THE STATE OF CALIFORNIA OR IN THE UNITED STATES
DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA. BY EXECUTING AND
DELIVERING THIS GUARANTY, EACH GUARANTOR, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY (I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II) WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS; (III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO SUCH GUARANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SECTION 20; (IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH GUARANTOR IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT; (V) AGREES THAT ADMINISTRATIVE AGENT RETAINS THE RIGHT
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST SUCH GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION; (VI) AGREES THAT
THE PROVISIONS OF THIS SECTION 27 RELATING TO JURISDICTION AND VENUE SHALL BE
BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER CALIFORNIA CODE
OF CIVIL PROCEDURE SECTION 410.40 OR OTHERWISE; AND (VII) WAIVES, TO THE MAXIMUM
EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LEGAL ACTION OR PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES.
28. Waiver of Jury Trial. EACH GUARANTOR AND ADMINISTRATIVE
AGENT HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims. Each Guarantor and
Administrative Agent acknowledge that this waiver is a material inducement for
Guarantors and Administrative Agent to enter into a business relationship, that
Guarantors and Administrative Agent have already relied on this waiver in
entering into this Guaranty and that each will continue to rely on this waiver
in their related future dealings. Each Guarantor and Administrative Agent
further warrant and represent that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
WRITTEN WAIVER SPECIFICALLY
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REFERRING TO THIS SECTION 28 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS GUARANTY. In the event of litigation, this Guaranty may be
filed as a written consent to a trial by the court.
29. Provisional Remedies, Self-Help and Foreclosure. No
provision of this Guaranty shall limit the right of any party to exercise
self-help remedies such as setoff, foreclosure against or sale of any real or
personal property collateral or security.
30. Relationship with Casden Loan. Subject to the terms of the
Intercreditor Agreement, so long as the indebtedness and obligations of
Guarantors under the Casden Credit Agreement and the other Casden Loan Documents
remain outstanding, any recourse to the Guarantors hereunder (including to
Property owned thereby) shall be subject to the payment and satisfaction of such
obligations of Guarantors under the Casden Credit Agreement and the other Casden
Loan Documents.
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IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty as of the date on the first page.
GUARANTORS:
AIMCO LA QRS, INC.
HAPI MANAGEMENT, INC.
XXXXX MANAGEMENT, INC.
XXXXX PROPERTY SERVICES, INC.
AIMCO PARK LA BREA INC.
CASDEN BROADCAST CENTER QRS INC.
CASDEN CANYON TERRACE QRS INC.
CASDEN CREEKSIDE QRS INC.
CASDEN CRESCENT GARDENS QRS INC.
CASDEN INDIAN OAKS QRS INC.
CASDEN LAKES QRS INC.
CASDEN MALIBU CANYON QRS INC.
CASDEN HILLCRESTE QRS INC.
CASDEN TOPANGA QRS INC.
CASDEN WESTWOOD QRS INC.
CASDEN CENTINELA QRS INC.
CASDEN PROPERTIES QRS II INC.
CASDEN PROPERTIES QRS III INC.
By: /s/ XXXXXXXX X. XXXXX
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Name: Xxxxxxxx X. Xxxxx
Title: Senior Vice President
GUARANTY (CASDEN GUARANTORS)
AIMCO GP LA, L.P.
By: AIMCO-GP, INC.
a Delaware corporation
Its: General Partner
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: President
AIMCO LP LA, L.P.
By: AIMCO LA QRS, INC.
a Delaware corporation
Its: General Partner
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: President
CASDEN PROPERTIES OPERATING
PARTNERSHIP, L.P.
By: AIMCO GP LA, L.P.
a Delaware limited partnership
Its: General Partner
By: AIMCO-GP, INC.
a Delaware corporation
Its: General Partner
By: /s/ XXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
S-2 GUARANTY (CASDEN GUARANTORS)
AIC REIT PROPERTIES LLC
By: AIMCO PROPERTIES, L.P.
a Delaware limited partnership
Its: Managing Member
By: AIMCO-GP, INC.
a Delaware corporation
Its: General Partner
By: /s/ XXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
S-3 GUARANTY (CASDEN GUARANTORS)
