GUARANTY MULTISTATE (for use in all jurisdictions except California) REVISION DATE 05/06/05
FHLMC
Loan No. 002732432
MULTISTATE
(for
use in all jurisdictions except California)
REVISION
DATE 05/06/05
This
Guaranty (“Guaranty”) is entered into to be effective as of
November 30, 2007, by the undersigned person(s) (the
“Guarantor” jointly and severally if more than one), for the
benefit of Federal Home Loan Mortgage Corporation(the
“Lender”).
RECITALS
A. Regency
North Associates, L.P., a Missouri limited partnership (the “Original
Borrower”) previously obtained a loan from Northland/Marquette Capital
Group, Inc., a Minnesota corporation (the “Original Lender”) in
the amount of $5,250,000.00 (the “Loan”). The Loan
was evidenced by a Multifamily Note from Borrower to Original Lender dated
December 27, 2000 (the “Note”). The Note was secured
by a Multifamily Mortgage, Deed of Trust, or Deed to Secure Debt dated the
same
date as the Note (the “Security Instrument”), encumbering the
real property described in the Security Instrument (the
“Property”). The Original Lender sold the Note,
assigned its rights in the Security Instrument and transferred the Loan to
Federal Home Loan Mortgage Corporation, which is now the holder of the Note
and
the owner of the Loan (the “Lender”).
B. As
a condition to allowing the Original Borrower to transfer the Property to
Regency North Acquisition, LLC, a Missouri limited liability company (the
“New Borrower”) and to allow New Borrower assume the Loan,
Xxxxxx has required that Maxus Operating Limited Partnership, a Delaware
limited
partnership (the “New Guarantor”) execute this
Guaranty.
C. All
references to Borrower in this Guaranty will be deemed to refer to the New
Borrower. All references to Guarantor in this Guaranty will be deemed
to refer to the New Guarantor.
NOW,
THEREFORE, in order to induce Xxxxxx to consent to the transfer of the Property
to the New Borrower, and in consideration thereof, Xxxxxxxxx agrees as
follows:
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1.
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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.
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2.
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Scope
of Guaranty.
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(a)
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Guarantor
hereby absolutely, unconditionally and irrevocably guarantees to
Lender:
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(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:
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(A)
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a
portion of the Indebtedness equal to zero percent (0%) of the original
principal balance of the Note (the “Base Guaranty”);
and
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(B)
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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
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(C)
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all
costs and expenses, including reasonable Attorneys’ Fees and Costs
incurred by Xxxxxx in enforcing its rights under this Guaranty;
and
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(ii)
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the
full and prompt payment and performance when due of all of Borrower’s
obligations under Section 18 of the Security
Instrument.
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(b)
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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.
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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.
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(c)
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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.
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3.
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Additional
Guaranty Relating to
Bankruptcy.
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(a)
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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:
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2
(i) Borrower
voluntarily files for bankruptcy protection under the United States Bankruptcy
Code; or
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(ii)
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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
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(iii)
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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.”
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(b)
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For
purposes of this Section, the term “Related Party”
means:
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(i)
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Borrower
or Guarantor; and
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(ii)
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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
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(iii)
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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
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(iv)
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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.
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(c)
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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.
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4.
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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 Xxxxxx 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.
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3
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5.
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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.
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6.
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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:
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(a)
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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;
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(b)
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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;
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(c)
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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;
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(d)
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all
rights to cause a marshalling of the Borrower’s assets or to require
Lender to:
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(i)
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proceed
against Borrower or any other guarantor of Xxxxxxxx’s payment or
performance under the Loan Documents (an “Other
Guarantor”);
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(ii)
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proceed
against any general partner of Borrower or any Other Guarantor if
Borrower
or any Other Guarantor is a
partnership;
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(iii)
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proceed
against or exhaust any collateral held by Xxxxxx to secure the repayment
of the Indebtedness; or
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(iv)
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pursue
any other remedy it may now or hereafter have against Borrower, or,
if
Borrower is a partnership, any general partner of
Xxxxxxxx;
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(e)
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any
right to object to the timing, manner or conduct of Xxxxxx’s enforcement
of its rights under any of the Loan Documents;
and
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4
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(f)
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any
right to revoke this Guaranty as to any future advances by Xxxxxx
under
the terms of the Security Instrument to protect Xxxxxx’s interest in the
Mortgaged Property.
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7.
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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:
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(a)
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extend
the time for payment of the principal of or interest on the Indebtedness
or renew the Indebtedness in whole or in
part;
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(b)
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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;
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(c)
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accelerate
the Maturity Date of the Indebtedness as provided in the Note, the
Security Instrument, or any other Loan
Document;
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(d)
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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
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(e)
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modify,
exchange, surrender or otherwise deal with any security for the
Indebtedness or accept additional security that is pledged or mortgaged
for the Indebtedness.
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8.
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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:
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(a)
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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;
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(b)
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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;
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(c)
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release
one or more of the parties named as a Guarantor in this Guaranty,
or any
Other Guarantor, from liability;
and
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(d)
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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.
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9.
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Subordination
of Xxxxxxxx’s Indebtedness to Guarantor. Any
indebtedness of Borrower held by Guarantor now or in the future is
and
shall be subordinated to the
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5
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.
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10.
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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.
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11.
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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.
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12.
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Financial
Statements. Guarantor, from time to time upon written
request by Xxxxxx, shall deliver to Lender such financial statements
as
Lender may reasonably require.
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13.
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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.
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14.
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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.
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15.
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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.
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6
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16.
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Jurisdiction;
Venue. Xxxxxxxxx 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 Xxxxxx’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.
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17.
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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.
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18.
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STATE-SPECIFIC
PROVISIONS: N/A.
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19.
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Residence;
Community Property
Provision. N/A.
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20.
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XXXXXXXXX
AND XXXXXX 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 XXXXXX 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.
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ATTACHED
EXHIBIT. The following Exhibit is attached to this
Guaranty:
|X| Exhibit
A Modifications
to Guaranty
[The
remainder of this page intentionally left blank; signature page
follows.]
PAGE
7
IN
WITNESS WHEREOF, Xxxxxxxxx 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.
Maxus
Operating Limited Partnership,
a
Delaware limited partnership
By: Maxus
Realty GP, Inc.,
a
Delaware corporation
Its: General
Partner
By:
/s/ Xxxx X. Xxxxx
Name: Xxxx
X. Xxxxx
Title: Vice
President
STATE
OF
MISSOURI )
)ss.
COUNTY
OF Clay )
On
this
27 day of November, 2007, before me, the undersigned, a Notary
Public in and for the State of Missouri, duly commissioned and sworn, personally
appeared Xxxx X. Xxxxx, to me known to be the Vice President of Maxus Realty
GP,
Inc., a Delaware Corporation, the General Partner of Maxus Operating Limited
Partnership, a Delaware limited partnership, described in the foregoing
instrument, acknowledged to me that he signed and sealed the foregoing
instrument as the free and voluntary act and deed of the limited partnership,
for the uses and purposes therein mentioned.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal,
the
day and year above written.
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/s/
Xxxxx X. Xxxxx
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Notary
Public
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My
Commission Expires: Aug. 24, 2010
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(Seal)
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Name
and Address of Guarantor:
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XXXXX
X. XXXXX
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Notary
Public – Notary Seal
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Name:
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Maxus
Operating Limited Partnership
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STATE
OF MISSOURI
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Address:
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c/o
Maxus Properties, Inc.
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Clay
County
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000
Xxxxxx Xxxx
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My
Commission Expires Aug. 24. 2010
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North
Kansas City, Missouri 64116
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Commission
#06429203
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PAGE
A-1
ACKNOWLEDGED
& CONSENTED TO BY:
Federal
Home Loan Mortgage Corporation
By:
__________________________
Name:
_______________________
Its:
__________________________
Federal
Home Loan Mortgage Corporation
0000
Xxxxx Xxxxxx Xxxxx, XX X-0X
McLean,
VA 22102
Attn: Director
of Multifamily Portfolio Services
COMMONWEALTH
OF
VIRGINIA
)
)
ss.
COUNTY
OF
_______________________ )
The
foregoing instrument was acknowledged before me this _____ day of ____________,
2007, by ________________________________, the _________________________________
of Federal Home Loan Mortgage Corporation, on behalf of the
corporation.
___________________________________
Signature
of Person Taking Acknowledgment
___________________________________
Title
or
Rank
EXHIBIT
A
MODIFICATIONS
TO GUARANTY
The
following modifications are made to the text of the Guaranty that precedes
this
Exhibit:
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1.
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Section
2(a)(i)(B) is hereby deleted in its entirety and the following
substituted
in its place:
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(B)
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in
addition to the Base Guaranty, all other amounts for which Borrower
is
personally liable under Sections 9(c) through (f) of the Note;
and
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1059276v1
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