Continuing Guarantee (Unlimited Amount)
This continuing guarantee is made by
The Lender is unwilling to extend or continue credit to the Debtor unless it receives a guarantee from the Guarantor covering the Liabilities (as defined below) of the Debtor to the Lender.
To induce Lender from time to time, in its discretion, to extend or continue credit unconditionally, the Guarantor has personally guaranteed to the Lender the payment of all liabilities or obligations that the Debtor may now or in the future owe or incur in favor of the Lender of whatever nature, whether now existing or hereafter incurred, whether created directly or acquired by the Lender by assignment or otherwise, whether determined or underdetermined, liquidated or unliquidated, matured or unmatured, and whether absolute or contingent (all in the broadest sense, and collectively referred to as the "Liabilities").
The Guarantor will derive substantial benefits from the completion of this extension of credit to the Debtor.
The parties therefore agree as follows:
1. GUARANTEE OF OBLIGATIONS.
- (a) Guarantee. The Guarantor guarantees and promises to pay to the Lender all Liabilities when they become due, either according to the terms of any loan agreement or on acceleration of a payment because of a default, as a primary, not a secondary, liability of the Guarantor. This is a continuing guarantee and remains in force until terminated under section 7 below.
- (b) Proceeding Against Guarantor. This guarantee constitutes a continuing guarantee of payment and not merely of collection. The Lender need not exercise a right, assert a claim or demand, or enforce a remedy against the Debtor or any other person before or as a condition to the obligations of the Guarantor under this guarantee.
- (c) Continuing Guarantee. This guarantee will remain effective whether the Liabilities are reduced and later increased, or entirely extinguished and later reincurred. The Guarantor's obligations and liability under this guarantee will be open and continuous as long as this guarantee remains in force. The Guarantor guarantees the prompt and punctual payment, performance, and satisfaction of present and future Liabilities. Accordingly, any payments made on the Liabilities will not discharge or diminish the obligations of the Guarantor under this guarantee for any remaining and succeeding Liabilities.
2. DEMAND FOR PAYMENT.
3. UNLIMITED LIABILITY.
The liability of the Guarantor under this guarantee is unlimited. This is a continuing guarantee without limitation of amount or duration.
4. CONSENT TO LENDER'S ACTS.
The Lender, without notice to or consent of the Guarantor, and on such terms as the Lender determines, may do any one or more of the following:
- (a) renew, compromise, extend, accelerate, or otherwise change the terms of the Liabilities, including changing any interest rate;
- (b) take and hold security for all or part of the Liabilities or for the performance of this guarantee, and exchange, enforce, waive, and release any security;
- (c) direct the disposition of security, dispose of any of the security at a public or private sale, and apply the proceeds of that sale or other disposition against the Liabilities, however the Lender may determine;
- (d) compromise or settle with the Debtor or any other person liable on the Liabilities;
- (e) on behalf of the Guarantor, file and collect any claim or proof of claim that the Guarantor may be entitled to file against the estate of the Debtor in any bankruptcy, liquidation, dissolution, receivership, assignment for the benefit of creditors, or other similar proceeding, whether administered by a court or otherwise. The Lender has no duty to file or collect any such claim and its failure to do so will not affect or impair its rights against the Guarantor; and
- (f) repay to the Debtor, pursuant to court order in any bankruptcy, debt relief, or other proceeding, any payment made to the Lender on the Liabilities, and in that event the liability of the Guarantor for that amount will be revived as if that amount had not been paid.
5. NO IMPAIRMENT OF OBLIGATIONS.
This guarantee and the Guarantor's obligations under it will not be discharged, reduced, limited, or otherwise affected by:
- (a) any right or presumed right of disposition, setoff, counterclaim, claim, appropriation, application or any other demand or right that the Debtor or the Guarantor may have or claim to have against the Lender or any other person;
- (b) any irregularity, defect, or informality in any obligation, document, transaction, or operation relating to the Debtor, the Guarantor, or their accounts;
- (c) the release or waiver, by operation of law or otherwise, of the performance by Debtor or any co-guarantor of any express or implied agreement, covenant, term, or condition in any loan document;
- (d) the extension of the time for the payment of all or any portion of the Liabilities, or the extension of time for the performance of any other obligation arising in connection with the Liabilities;
- (e) the amendment, whether material or otherwise, of any loan document or of the obligations of the Debtor or any co-guarantor;
- (f) any failure, omission, delay, or lack of diligence on the part of the Lender to enforce or assert any right conferred on the Lender in the loan documents or by operation of law;
- (g) the settlement, compromise, or subordination of any of the Liabilities;
- (h) the voluntary or involuntary liquidation, dissolution, bankruptcy, or other similar proceedings of the Debtor or any other guarantor or any other fundamental change involving or affecting the Debtor or any other guarantor; or
- (i) any incapacity of the Debtor, even if that incapacity results in all or any portion of the Liabilities to be invalid, illegal, or uncollectible against the Debtor; or
- (j) any omission by the Lender to exercise any right in respect of any collateral security held by the Lender to secure the payment of the Liabilities.
6. LIENS AND SETOFFS.
In addition to all liens on and rights of setoff against the moneys, securities, or other property of the Guarantor given to the Lender by law, the Lender will have a lien on and right of setoff against all moneys, securities, and other property of the Guarantor in the possession of the Lender.
This guarantee shall continue until the Lender receives notice, in writing, signed by the Guarantor or the Guarantor's authorized agent, of the Guarantor's termination of this guarantee. The date of termination (the "Termination Date") shall be the actual date on which that written termination is received by the Lender. The termination shall apply only to transactions beginning after the Termination Date and not affect any rights or obligations arising out of transactions having their inception before the Termination Date.
9. FINANCIAL INVESTIGATION.
The Guarantor delivers this guarantee based solely on the Guarantor's independent investigation of (or decision not to investigate) the financial condition of the Debtor. The Guarantor is not relying on any information furnished by the Lender. The Guarantor assumes full responsibility for obtaining any additional information concerning the Debtor's financial condition, the status of the Liabilities, or any other matter that the Guarantor may deem necessary. Unless the Guarantor makes a specific request for information, the Lender has no duty to give the Guarantor information about the Debtor's financial condition. The Guarantor knowingly accepts the full range of risk encompassed in this guarantee, which includes the possibility that the Debtor may incur additional Liabilities to the Lender after the financial condition of the Debtor, or the Debtor's ability to pay debts as they mature, has deteriorated.
The Guarantor hereby subordinates all obligations that the Debtor may have to the Guarantor to the Guarantor's obligation under this guarantee to the Lender. On the Lender's request, the Guarantor shall collect, enforce, and receive the Debtor's obligations to the Guarantor, and pay the amounts received to the Lender on account of the Debtor's Liabilities to the Lender. This subordination shall survive in the event of the Debtor's or Guarantor's dissolution, termination of existence, death, incompetence, cessation of business, insolvency, inability to pay debts as they mature, assignment for the benefit of creditors, and transfer of a substantial portion of its or his property, and the appointment of a receiver of any of the Debtor's or Guarantor's property, and the commencement of any proceeding under any bankruptcy or insolvency law of which the Debtor or the Guarantor is the subject.
11. POSTPONEMENT OF SUBROGATION.
The Guarantor may not exercise rights that it acquires by way of rights of subrogation under this guarantee or by payments made under this guarantee until all Liabilities of the Debtor have been paid. The Guarantor shall pay immediately to the Lender any amounts paid to the Guarantor because of those subrogation rights before the Liabilities have been paid in full. However, if
- (a) the Guarantor has paid any of the Liabilities to the Lender; and
- (b) the Termination Date has occurred,
then, at the Guarantor's request and expense, the Lender shall execute the documents necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Liabilities resulting from the Guarantor's payment. The Guarantor may not take action or start a proceeding against the Debtor before the Termination Date to recover amounts paid by the Guarantor to the Lender under this guarantee.
13. GOVERNING LAW.
The laws of the state of
No amendment to this guarantee will be effective unless it is in writing and signed by the Guarantor and the Lender.
15. ASSIGNMENT AND DELEGATION.
- (a) Assignment. The Lender may assign its rights under this guarantee without the consent of the Guarantor.
- (b) No Delegation. The Guarantor may not delegate any performance under this guarantee, except with the prior written consent of the Lender.
- (c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made, or if both are made, in violation of this section, it is void and they are void.
If any one or more of the provisions contained in this guarantee is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this guarantee, but this guarantee will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this guarantee to be unreasonable.
- (a) Writing; Permitted Delivery Methods. Anyone giving or making any notice, request, demand, or other communication required or permitted by this guarantee shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this guarantee: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
- (b) Addresses. Notices under this section may be addressed to the following addresses:
- If to the Lender:
- If to the Guarantor:
- (c) Effectiveness. A notice is effective only if the notifier complies with subsections (a) and (b) and if the recipient receives the notice.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this guarantee will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
The descriptive headings of the sections and subsections of this guarantee are for convenience only, and do not affect this guarantee's construction or interpretation.
20. NECESSARY ACTS; FURTHER ASSURANCES.
The Guarantor shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this guarantee contemplates or to evidence or carry out the intent and purposes of this guarantee.
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The Guarantor is signing this guarantee on the date stated opposite the Guarantor's signature.
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