Exhibit
10.39

FHLMC Loan No.
487779258
Landmark Apartments

GUARANTY

MULTISTATE

(for use in all Property
jurisdictions except California)

REVISION DATE
05/06/2005

This Guaranty ("Guaranty") is
entered into to be effective as of March 11, 2009, by the undersigned person(s)
(the "Guarantor" jointly and severally if more than one), for the benefit
of CAPMARK BANK, a Utah industrial bank (the "Lender").

RECITALS

A.                
Landmark (NC), LLC, a Delaware limited liability company,
d/b/a Landmark-Raleigh (NC), LLC, in North Carolina (the "Borrower") has
requested that Lender make a loan to Borrower in the amount of $8,850,000.00
(the "Loan").  The Loan will be evidenced by a Multifamily Note from
Borrower to Lender dated effective as of the effective date of this Guaranty
(the "Note").  The Note will be secured by a Multifamily Mortgage,
Deed of Trust, or Deed to Secure Debt dated effective as of the effective date
of the Note (the "Security Instrument"), encumbering the Mortgaged
Property described in the Security Instrument. 

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.                 
Defined Terms.  "Indebtedness,"
"Loan Documents" and "Property Jurisdiction" and other
capitalized terms used but not defined in this Guaranty shall have the meanings
assigned to them in the Security Instrument.

2.                 
Scope of Guaranty.

(a)               
Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to Lender:

(i)                 
the full and prompt payment when due, whether at the Maturity Date
or earlier, by reason of acceleration or otherwise, and at all times thereafter,
of each of the following: 

(A)             
a portion of the Indebtedness equal to zero percent (0%) of the
original principal balance of the Note (the "Base Guaranty"); and


(B)             
in addition to the Base Guaranty, all other amounts for which
Borrower is personally liable under Sections 9(c), 9(d) and 9(f) of
the Note; and

(C)             
all costs and expenses, including reasonable Attorneys' Fees and
Costs incurred by Lender in enforcing its rights under this Guaranty;
and

(ii)               
the full and prompt payment and performance when due of all of
Borrower’s obligations under Section 18 of the Security Instrument.

(b)              
If the Base Guaranty stated in Section 2(a)(i)(A) is 100
percent of the original principal balance of the Note, then (i) the Base
Guaranty shall mean and include the full and complete guaranty of payment of the
entire Indebtedness and the performance of all Borrower’s obligations under the
Loan Documents; and (ii) for so long as the Base Guaranty remains in effect
(there being no limit to the duration of the Base Guaranty unless otherwise
expressly provided in this Guaranty), the obligations guaranteed pursuant to
Sections 2(a)(i)(B), 2(a)(i)(C) and Section 3 shall be part of, and
not in addition to or in limitation of, the Base Guaranty.

If the Base Guaranty stated in
Section 2(a)(i)(A) is less than 100 percent of the original principal
balance of the Note, then this Section 2(b) shall be completely
inapplicable and shall be treated as if not a part of this Guaranty.

(c)               
If Guarantor is not liable for the entire Indebtedness, then 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 and the other Loan Documents (except this Guaranty) shall be applied
first to the portion of the Indebtedness for which neither Borrower nor
Guarantor has personal liability. 

3.                 
Additional Guaranty Relating to Bankruptcy. 


(a)               
Notwithstanding any limitation on liability provided for elsewhere
in this Guaranty, Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to Lender the full and prompt payment when due, whether at the
Maturity Date or earlier, by reason of acceleration or otherwise, and at all
times thereafter, the entire Indebtedness, in the event that:

(i)                 
Borrower voluntarily files for bankruptcy protection under the
United States Bankruptcy Code; or 

(ii)               
Borrower 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 

(iii)              
an order of relief is entered against Borrower pursuant to the
United States Bankruptcy Code or other federal or state law affecting debtor and
creditor rights in any involuntary bankruptcy proceeding initiated or joined in
by a "Related Party."  

(b)              
For purposes of this Section, the term "Related Party"
means:

(i)                 
Borrower or Guarantor; and

(ii)               
any person or entity that holds, directly or indirectly, any
ownership interest in or right to manage Borrower or Guarantor, including
without limitation, any shareholder, member or partner of Borrower or Guarantor;
and

(iii)              
any person or entity in which any ownership interest (direct or
indirect) or right to manage is held by Borrower, Guarantor or any partner, shareholder or member of, or any other person or
entity holding an interest in, Borrower or Guarantor; and

(iv)             
any other creditor of Borrower that is related by blood, marriage
or adoption to Borrower, Guarantor or any partner, shareholder or member of, or
any other person or entity holding an interest in, Borrower or Guarantor. 


(c)               
If Borrower, Guarantor or any Related Party has solicited
creditors to initiate or participate in any proceeding referred to in this
Section, regardless of whether any of the creditors solicited actually initiates
or participates in the proceeding, then such proceeding shall be considered as
having been initiated by a Related Party.

4.                 
Guarantor's Obligations Survive Foreclosure.  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.  Notwithstanding the foregoing, if Lender
has never been a mortgagee-in-possession of or held title to the Mortgaged
Property, Guarantor shall have no obligation under this Guaranty relating to
Borrower's obligations under Section 18 of the Security Instrument after
the date of the release of record of the lien of the Security Instrument as a
result of the payment in full of the Indebtedness on the Maturity Date or by
voluntary prepayment in full.

5.                 
Guaranty of Payment and Performance.  Guarantor’s
obligations under this Guaranty constitute an unconditional guaranty of payment
and performance and not merely a guaranty of collection.

6.                 
No Demand by Lender Necessary; Waivers by Guarantor. 
The obligations of Guarantor under this Guaranty shall be performed without
demand by Lender and shall be unconditional regardless 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, a
guarantor, a borrower or a mortgagor.  Guarantor hereby waives, to the
fullest extent permitted by applicable law:

(a)               
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, a guarantor, a borrower or a
mortgagor;

(b)              
the benefits of any right of discharge under any and all statutes
or other laws relating to a guarantor, a surety, a borrower or a mortgagor, and
any other rights of a surety, a guarantor, a borrower or a mortgagor under such
statutes or laws;

(c)               
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 of any obligation or
indebtedness;

(d)              
all rights to cause a marshalling of the Borrower's assets or to
require Lender to:

(i)                 
proceed against Borrower or any other guarantor of Borrower’s
payment or performance under the Loan Documents (an "Other
Guarantor");

(ii)               
proceed against any general partner of Borrower or any Other
Guarantor if Borrower or any Other Guarantor is a partnership;

(iii)              
proceed against or exhaust any collateral held by Lender to secure
the repayment of the Indebtedness; or

(iv)             
pursue any other remedy it may now or hereafter have against
Borrower, or, if Borrower is a partnership, any general partner of Borrower;


(e)               
any right to object to the timing, manner or conduct of Lender's
enforcement of its rights under any of the Loan Documents; and

(f)                
any right to revoke this Guaranty as to any future advances by
Lender under the terms of the Security Instrument to protect Lender’s interest
in the Mortgaged Property.

7.                 
Modification of Loan Documents.  At any time or
from time to time and any number of times, without notice to Guarantor and
without affecting the liability of Guarantor, Lender may:

(a)               
extend the time for payment of the principal of or interest on the
Indebtedness or renew the Indebtedness in whole or in part;

(b)              
extend 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, or
waive such performance or compliance; 

(c)               
accelerate the Maturity Date of the Indebtedness as provided in
the Note, the Security Instrument, or any other Loan Document;

(d)              
with Borrower, modify or amend the Note, the Security Instrument,
or any other Loan Document in any respect, including, but not limited to, an
increase in the principal amount; and/or

(e)               
modify, exchange, surrender or otherwise deal with any security
for the Indebtedness or accept additional security that is pledged or mortgaged
for the Indebtedness.

8.                 
Joint and Several Liability.  The obligations of
Guarantor (and each party named as a Guarantor in this Guaranty) and any Other
Guarantor 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 parties
named as a Guarantor in this Guaranty, and any Other Guarantor, jointly and
severally, or against any one or more of them;

(b)              
compromise or settle with Guarantor, any one or more of the
parties named as a Guarantor in this Guaranty, or any Other Guarantor, for such
consideration as Lender may deem proper;

(c)               
release one or more of the parties named as a Guarantor in this
Guaranty, 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.  

9.                 
Subordination of Borrower's Indebtedness to
Guarantor.  Any indebtedness of Borrower held by Guarantor now or in
the future is and shall be subordinated to the Indebtedness and Guarantor shall
collect, enforce and receive any such indebtedness of Borrower as trustee for
Lender, but without reducing or affecting in any manner the liability of
Guarantor under the other provisions of this Guaranty.

10.             
Waiver of Subrogation.  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 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. 

11.             
Preference.  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.

12.             
Financial Statements.  Guarantor, from time to
time upon written request by Lender, shall deliver to Lender such financial
statements as Lender may reasonably require.  

13.             
Assignment.  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 also include any
lawful owner, holder or pledgee of the Note.  Reference in this Guaranty to
"person" or "persons" shall be deemed to include individuals and
entities.   

14.             
Complete and Final Agreement.  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 Guarantor has received a copy 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 a 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 writing.

15.             
Governing Law.  This Guaranty shall be governed by
and enforced in accordance with the laws of the Property Jurisdiction, without
giving effect to the choice of law principles of the Property Jurisdiction that
would require the application of the laws of a jurisdiction other than the
Property Jurisdiction.

16.             
Jurisdiction; Venue.  Guarantor agrees that any
controversy arising under or in relation to this Guaranty may be litigated in
the Property Jurisdiction, and that the state and federal courts and authorities
with jurisdiction in the Property Jurisdiction shall have jurisdiction over all
controversies which shall arise under or in relation to this Guaranty. 
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.  However, nothing
herein is intended to limit Lender's right to bring any suit, action or
proceeding relating to matters arising under this Guaranty against Guarantor or
any of Guarantor's assets in any court of any other jurisdiction. 

17.             
Guarantor's Interest in Borrower.  Guarantor
represents to Lender that Guarantor has a direct or indirect ownership or other
financial interest in Borrower and/or will otherwise derive a material financial
benefit from the making of the Loan. 

18.             
STATE-SPECIFIC PROVISIONS:  Guarantor waives all
rights granted by Sections 26‐7 through 26‐9, inclusive, of the North
Carolina Statutes.

19.             
Residence; Community Property Provision.

(a)        Guarantor
represents and warrants that his/her state of residence is N/A.

 

(b)        Guarantor
warrants and represents that s/he is:  N/A

 

[______] single

[______] married

 

20.             
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 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:

	
X
	
 
	
Exhibit A
	
Modifications to
Guaranty



IN WITNESS WHEREOF, Guarantor has signed and delivered
this Guaranty under seal or has caused this Guaranty to be signed and delivered
under seal by its duly authorized representative.  Guarantor intends that
this Guaranty shall be deemed to be signed and delivered as a sealed instrument.



AIMCO
PROPERTIES, L.P., a
Delaware limited partnership

 

By:      
AIMCO-GP, Inc., a Delaware corporation, its General Partner

 

 

 

By: /s/Patti K.
Fielding

Patti K. Fielding

Executive Vice President and
Treasurer

 

 

 

 

STATE OFCOLORADO

COUNTYOF
DENVER

 

I certify that the following person
personally appeared before me this day, acknowledging to me that he or she
voluntarily signed the foregoing document for the purpose stated therein and in
the capacity indicated:

Patti K. Fielding, as Executive Vice
President and Treasurer of AIMCO-GP, Inc., a Delaware corporation, the general
partner of AIMCO Properties, L.P., a Delaware limited
partnership.

DATE:  March 10, 2009.

 

 

/s/Gail D. Coalson 

Signature of Notary Public

Printed Name: Gail D.
Coalson

My Commission expires:
02/17/2012

 

 

[NOTARY PUBLIC STAMP OR
SEALS]

 


Names and Address of
Guarantor:

 

 

Name:         
AIMCO Properties, L.P.

Address:     
c/o AIMCO

                    
Stanford Place 3

                    
4582 South Ulster Street Parkway, Suite 1100

                    
Denver, Colorado 80237

 




EXHIBIT
A

 

MODIFICATIONS TO GUARANTY

 

 

The following modifications are made to the text of the
Guaranty that precedes this Exhibit:

 

1.        
Lender may assign its
rights under this Guaranty pursuant to Section 13 of this Guaranty only to a
purchaser or other transferee of the Loan.

 

2.        
Section 2(a)(i)(A) of
this Guaranty is deleted in its entirety; and Section 2(a)(i)(B) of this
Guaranty is modified to read as follows:

 

(B)      
All amounts for which
Borrower is personally liable under Sections 9(c), 9(d) and 9(f) of the Note;
and 

 

3.        
Section 3 of this Guaranty is deleted and replaced with the
following:

 

3.        
Additional Guaranty Relating to Bankruptcy.  Notwithstanding any limitation on
liability provided for elsewhere in this Guaranty, Guarantor hereby absolutely,
unconditionally and irrevocably guarantees to Lender the full and prompt payment
when due, whether at the Maturity Date or earlier, by reason of acceleration or
otherwise, and at all times thereafter, the entire
Indebtedness, in the event that (i) Borrower becomes subject to any
voluntary bankruptcy, reorganization, receivership, insolvency or other similar
voluntary proceeding pursuant to any federal or state law affecting debtor and
creditor rights, or (ii) an order for relief is entered against Borrower in any
such voluntary proceeding.

 

4.        
Section 8 is amended by adding a new last sentence:

 

Nothing contained in the Section shall
in any way affect or impair the rights or remedies that Guarantor has, or may
have, against any Other Guarantor.

 

5.        
Paragraph 12 is amended in its entirety to read as follows:

12.      
Financial Statements; Accountants’ Reports; Other
Information.  The Guarantor shall keep and
maintain at all times complete and accurate books of accounts and records in
sufficient detail to correctly reflect all of the Guarantor’s financial
transactions and assets.  In addition, the Guarantor shall furnish, or
cause to be furnished, to the Lender the following:

(i)        
So long as Guarantor is a reporting company under the Securities and Exchange
Act of 1934 (the “’34 Act”), promptly upon their becoming available, copies of
(A) all 10K’s, 10Q’s, 8K’s, annual reports and proxy statements, and all
replacement, substitute or similar filings or reports required to be filed after
the date of this Guaranty by the SEC or other Governmental Authority exercising
similar functions, and (B) all press releases and other statements made
available generally by Guarantor to the public concerning material developments
in the business of Guarantor.

(ii)       
In the event Guarantor is not a reporting company under the ‘34 Act,

(A)      
Annual Financial Statements.  As soon as available, and in any event
within 90 days after the close of its fiscal year, as long as the Indebtedness
is outstanding, the audited balance sheet of Guarantor as of the end of such
fiscal year, the audited statement of income, equity and retained earnings of
Guarantor for such fiscal year and the audited statement of cash flows of
Guarantor for such fiscal year, all in reasonable detail and stating in
comparative form the respective figures for the corresponding date and period in
the prior fiscal year, prepared in accordance with GAAP, consistently applied,
and accompanied by a certificate of Guarantor’s independent certified public
accountants to the effect that such financial statements have been prepared in
accordance with GAAP, consistently applied and that such financial statements
fairly present the results of its operations and financial conditions for the
periods and dates indicated with such certification to be free of exceptions and
qualifications as to the scope of the audit or as to the going concern nature of
the business.

(B)      
Quarterly Financial Statements.  As soon as available, and in any
event within 45 days after each of the first three fiscal quarters of each
fiscal year as long as the Indebtedness is outstanding, the unaudited balance
sheet of Guarantor as of the end of such fiscal quarter, the unaudited statement
of income and retained earnings of Guarantor and the unaudited statement of cash
flows of Guarantor for the portion of the fiscal year ended with the last day of
such quarter, all in reasonable detail and stating in comparative form the
respective figures for the corresponding date and period in the previous fiscal
year, accompanied by a certificate of a member of senior management acceptable
to Lender (which certificate shall be without personal liability to such
officer) stating that such financial statements have been prepared in accordance
with GAAP, consistently applied, and fairly present the results of its
operations and financial condition for the periods and dates indicated subject
to year end adjustments in accordance with GAAP.

(iii)      
Other Reports.  Promptly upon receipt thereof, all schedules,
financial statements or other similar reports delivered by the Guarantor
pursuant to the Loan Documents or reasonably requested by the Lender with
respect to the Guarantor’s business affairs or condition (financial or
otherwise).

After the providing by the Guarantor
of any statement, report or other information on a collective basis to Standard
& Poor’s, Moody’s Investors Service, Fitch and/or any other rating agency,
and/or after providing any statement, report or other information on a
collective basis to the banks or other institutions providing unsecured lines of
credit and loans to Guarantor, Guarantor shall promptly furnish such statement,
report or other information to Lender.

As used in this Paragraph (iii) the
phrase “on a collective basis” means as provided to a group as a whole as
opposed to an individual basis, e.g., providing
information to a rating agency or to a bank to respond to a particular request
of such rating agency or bank.

The Lender agrees to treat all
Information received by it (I) under this Paragraph (iii) as confidential and
(II) which Guarantor requests in writing to the Persons at the Lender who
receive any Information regarding Guarantor that such information by treated as
confidential; provided, however, that such Information may be
disclosed (A) as required by law, (B) to officers, directors, employees, agents,
partners, attorneys, auditors, accountants, engineers and other consultants of
the Lender, or its successors or assigns, who need to know such Information,
provided such Persons are instructed to treat such Information confidentially,
(C) by the Lender to any successor or assign of such Person, (D) to any federal
or state regulatory authority having jurisdiction over the Lender, or its
successors or assigns, (E) to any other Person to which such delivery or
disclosure may be necessary or appropriate (w) in compliance with any law, rule,
regulation or order applicable to the Lender, or its successors or assigns, (x)
in response to any subpoena or other legal process or information investigative
demand, or (y) in connection with any litigation to which the Lender, or its
successors or assigns, is a party; provided, however, in that
event the disclosing Person shall reasonably endeavor to notify Guarantor
thereof as soon as possible to enable Guarantor to seek protective orders, or
such other confidential treatment of such Information as Guarantor may deem
reasonable.  Guarantor agrees that Information subject to this Paragraph
(iii) does not include information which (I) was publicly known, or otherwise
known to the Lender, or its successors or assigns, at the time of disclosure,
(II) subsequently becomes publicly known through no act of or omission by the
Lender or its successors or assigns.  Guarantor acknowledges that this
provision relates solely to Lender and nothing in this provision shall make
Lender responsible or liable for any actions relating to, or disclosures of, any
Information by any loan servicer of Lender’s or other party. 

 

6.        
Section 16 of this Guaranty is deleted and replaced with the
following:

 

16.      
Jurisdiction; Venue.  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.