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FHLMC
Loan No. 002732432
(for use in all jurisdictions except
California)
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 Group Capital, 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, Lender has
required that Maxus Realty Trust, Inc., a Missouri corporation
(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 Lender to consent to the
transfer of the Property to the New Borrower, and in
consideration thereof, Guarantor 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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(a)
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Guarantor
hereby absolutely, unconditionally and irrevocably guarantees to
Lender:
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(i)
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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) 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 Lender 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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(i)
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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 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.
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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 guaranto
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