LOAN GUARANTY THIS GUARANTY, is made this _________, 19___, by _________ (the "Guarantor"), to ______________, (the "Lender"). WHEREAS Lender is the owner and holder of that certain Promissory Note (the "Note") dated __________ in the original principal amount of $_______ executed by ___________________, (the “Borrower”) which Note is secured by that certain Mortgage and Security Agreement (the "Mortgage") of even date therewith; and WHEREAS the indebtedness is further secured by an Assignment of Leases, Rents, and Profits dated __________; and WHEREAS to induce Lender to enter into the loan transaction evidenced by the foregoing instruments (the “Loan”) Guarrantor has agreed to guraranty the obligations of Borrower; and WHEREAS Lender is unwilling to enter into the Loan unless Guarantor guarantees the payment thereof; NOW THEREFORE, as a material inducement to Lender to enter into the Loan, Guarantor agrees with Lender as follows: 1. The above recital are true and correct ant are incorporated herein.
2. To induce Lender to enter into the Loan, Guarantor unconditionally guarantees and promises to pay to Lender or order, on demand, in lawful money of the United States any and all indebtedness of Borrower to Lender associated with the Loan. 3. The obligations of Guarantor hereunder are independent of the obligations of Borrower, and a separate action or actions may be brought and be prosecuted against Guarantor whether action is brought against Borrower or whether Borrower be joined in any such action or actions; and Guarantor waives the benefit of any statute of limitations affecting its liability hereunder or the enforcement thereof. 4. Guarantor authorizes Lender, without notice or demand and without affecting its liability hereunder, from time to time to (a) renew, compromise, extend, accelerate or otherwise change the time for payment or otherwise change the terms of the indebtedness or any part thereof, including increase or decrease of the rate of interest thereon; (b) take and hold security for the payment of this Guaranty or the indebtedness guaranteed, and exchange, enforce, waive, and release any such security; (c) apply such security and direct the order or manner of sale thereof as Lender in its discretion may determine; and (d) release or substitute any one or more guarantors. Lender may assign this guaranty in whole or in part. 5. Guarantor waives any right to require Lender to (a) proceed against Borrower; (b) proceed against or exhaust any security held from Borrower; or (c) pursue any other remedy in Lender's power whatsoever. Guarantor waives any defense arising by reason of any disability or
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other defense of Borrower except for defenses based on Lender's default or by reason of the cessation from any cause whatsoever of the liability of Borrower. Guarantor waives all nnotice of acceptance of this Guaranty, notice of maturity, payment or default of any indebtedness, and and any other requirement or notice necessary to bind Guarantor hereunder, including but not limited to presentment, notice of dishonor and protest. 6. Guarantor acknowledges that Lender has or may have liens or security interests by way of deeds of trust, mortgages, security agreements and/or other security instruments on property of Borrower or others for the repayment of Borrower's indebtedness and for the due performance of all obligations undertaken by Borrower and by the undersigned (other than under this Guaranty) in connection with the Loan and indebtedness. Guarantor acknowledges that Lender by proceeding against said property may adversely affect rights of Guarantor to reimbursement, subrogation, or other similar rights; nevertheless, Guarantor agrees that the obligations of this Guaranty shall in no way be diminished, modified, or abrogated as a result of any impairment or loss of any right of subrogation, reimbursement, or other right, which would have existed in or inured to Guarantor, in said property or against Borrower, except for Lender's proceeding or not proceeding, in a particular type or manner of foreclosure, foreclosure sale, sale, release, abandonment, transfer, assignment, or reconveyance of some or all of such property. To the full extent permitted by policy and by law, Guarantor waives any right or benefit, any rule of law, and any estoppel against Lender, which in the absence of such waiver would have the effect of diminishing, modifying, or abrogating Guarantor's obligation to pay said loans and indebtedness because of Lender's exercising its option or making an election to proceed against such property in the first instance, or in a particular lawful manner, or from Lender's exercising any other option, right, or benefit herein set forth or authorized by law. Without limitation on the generality of the foregoing, Guarantor agrees to be bound fully to pay the Loan and all indebtedness associated with the Loan, notwithstanding that its rights, if any, of subrogation, reimbursement, or other right against Borrower or Borrower's property may be or become lost or materially altered by reason of Lender's effecting a non-noticed or non-public sale, or a sale not in a commercially reasonable manner, or a nonjudicial foreclosure sale of property held as security so long as such actions by Lender are not in violation of applicable law. Furthermore, Guarantor agrees that Lender may bid at any sale, and if the high bidder, purchase the property offered for sale. For purposes of determining its obligations hereunder, Guarantor agrees that the amount of any unpaid debt or unsatisfied obligation under the Loan, remaining after any sale of security, shall be deemed a deficiency and debt due and owing to Lender, to be paid by Guarantor, notwithstanding that such amount may not, in fact or in law, constitute a deficiency or debt recoverable from or payable by Borrower. The duties and obligations hereof undertaken by Guarantor shall not be diminished, modified, or abrogated in any respect whatsoever by reason of Guarantor's owning all or a controlling interest in the Borrower. 7. In addition to all liens upon, and rights of setoff against the moneys, securities, or other property of Guarantor given to Lender by law, Lender shall have a lien upon and a right of setoff against all moneys, securities, and other property of Guarantor now or hereafter in the possession of or on deposit with Lender, whether held in a general or special account, or for safekeeping or otherwise; and every such lien and right of setoff may be exercised without demand upon or notice to Guarantor. No lien or right of setoff shall be deemed to have been waived by any act or conduct on the part of Lender, or by any neglect to exercise such right of
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setoff or to enforce such lien, or by any delay in so doing, and every right of setoff and lien shall continue in full force and effect until such right of setoff or lien is specifically waived or released by an instrument in writing executed by Lender. 8. Where one or more persons constitute Borrower and include a corporation or a partnership or other business entity, it is not necessary for Lender to inquire into or determine the powers of Borrower or the officers, directors, partners, or agents acting or purporting to act on Borrower's behalf, and any indebtedness made or created in reliance upon the professed exercise of such powers shall be and is guaranteed hereunder. 9. Guarantor acknowledges that the Loan herein guaranteed may be assigned or transferred (in whole or in part), or made subject to a participation agreement with other lenders or persons. Guarantor agrees that the rights and benefits hereof shall be fully exercisable by Lender's assignees, transferees, or participants in such loans or indebtedness, or any portion thereof, and that no assignment, transfer, or participation shall invalidate or diminish Guarantor's duties and obligations hereunder. 10. Guarantor agrees to pay reasonable attorneys' fees (including attorneys' fees on appeal) and all other costs and expenses which may be incurred by Lender in the enforcement of this Guaranty. 11. This Guaranty shall be interpreted, construed and enforced according to the laws of the State of ________. IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty the day and year first above written.
Witnesses: ____________________________________
Witness signautre Print witness name_________________________
___________________________________
____________________________________
Witness signautre Print witness name_________________________
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STATE OF __________ COUNTY OF ______________ The foregoing instrument was acknowledged before me this _____ day of _______________, 19____ by ____________________________, who is personally known to me or who has produced ________________________ as identification. __________________________________ Notary Public Print Name: ________________________ (Seal) My Commission Expires:
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