2002-05-15 & 17- Personal Guarantyt _ .
John F. Darkenwald
PERSONAL GUARANTY
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and pursuant to a Developer's\Planned Unit
Development Agreement entered into between the City of Albertville (the "City"),
County of Wright, State of Minnesota and Darkenwald Real Estate, LTD. (the
"Developer"), dated May 6, 2002, the undersigned John F. Darkenwald personally
hereby absolutely and unconditionally guarantee(s) to the City the full and prompt
payment when due, of all special assessments levied for the installation of
municipal improvements pursuant to the above described Developer's\Planned
Unit Development Agreement sections 1(A) & (B) and 4(B).
The undersigned further acknowledges and agrees with the City that:
1. No act or thing need occur to establish the liability of the
undersigned hereunder, and no act or thing except full payment and performance
of the terms and conditions of the above referenced Developer's\Planned Unit
Development Agreement shall in any way exonerate the undersigned or modify,
reduce, limit or release the liability of the undersigned hereunder.
2. If the undersigned shall die, or shall be or become insolvent
(however defined), then the City shall have the right to declare immediately due
and payable, and the undersigned will forthwith pay to the City, the full amount of
all unpaid special assessments, whether due and payable or unmatured. If any of
the undersigned voluntarily commences or there is commenced involuntarily
against the undersigned a case under the United States Bankruptcy Code, the full
amount of all unpaid special assessments, whether due and payable or unmatured,
shall be immediately due and payable without demand or notice thereof.
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3. The undersigned will pay or reimburse the City for all costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred by the
City in connection with the protection, defense or enforcement of this guaranty,
whether or not suit is commenced, which attorneys' fees and legal expenses shall
include, but not be limited to, any attorneys' fees and legal expenses incurred in
connection with any appeal of a lower court's judgment or order.
4. This guaranty is unsecured.
5. The City may, but shall not be obligated to, enter into transactions
resulting in the continuance of unpaid special assessments, without any consent or
approval by the undersigned and without any notice to the undersigned. The
liability of the undersigned shall not be affected or impaired by any of the
following acts or things: (i) any acceptance of collateral security, guarantors,
accommodation parties or sureties for any or all unpaid special assessments; (ii)
any one or more extensions or renewals of unpaid special assessments (whether or
not for longer than the original period) or any modification of the interest rates,
maturities or other contractual terms applicable to any unpaid special assessments;
(iii) any waiver or forbearance granted to the Developer, any delay or lack of
diligence in the enforcement of unpaid special assessments, or any failure to
institute proceedings, file a claim, give any required notices or otherwise protect
any unpaid special assessments; (iv) any full or partial release of, settlement with,
or agreement not to sue, Developer or any other guarantor or other person liable in
respect of any unpaid special assessments; (v) any discharge of any evidence of
unpaid special assessments or the acceptance of any instrument in renewal thereof
or substitution therefor; (vi) any failure to obtain collateral security (including
rights of setoff) for unpaid special assessments, or to see to the proper or sufficient
creation and perfection thereof, or to establish the priority thereof, or to protect,
insure, or enforce any collateral security; or any modification, substitution,
discharge, impairment, or loss of any collateral security; (vii) any foreclosure or
enforcement of any collateral security; (viii) any transfer of any unpaid special
assessments or any evidence thereof, (ix) any order of application of any payments
or credits upon unpaid special assessments; (x) any election by the City under §
1111(b)(2) of the United States Bankruptcy Code.
6. The undersigned waive(s) any and all defenses and claims of the
Developer, or any other obligor pertaining to the unpaid special assessments,
except the defense of discharge by payment in full. Without limiting the generality
of the foregoing, the undersigned will not assert, plead or enforce against the City
any defense of waiver, release, statute of limitations, res judicata, statute of
frauds, anti -deficiency statute, incapacity, minority, usury, illegality or
unenforceability which may be available to the Developer or to any other person
liable for any unpaid special assessments. The undersigned expressly agree(s) that
the undersigned shall be and remain liable for any deficiency remaining after
foreclosure of any mortgage or security interest securing the unpaid special
assessments, whether or not the liability of the Developer or any other obligor for
such deficiency is discharged pursuant to statute or judicial decision.
7. The undersigned waive(s) presentment, demand for payment, notice
of dishonor or nonpayment and protest of any instrument evidencing the unpaid
special assessments. The City shall not be required first to resort for payment of
the unpaid special assessments to the Developer or other persons or their
properties or first to enforce, realize upon or exhaust any collateral security for the
unpaid assessments, before enforcing the guaranty.
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8. If any payment applied by the City to unpaid special assessments is
thereafter set aside, recovered, rescinded or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or reorganization of the
Developer or any other obligor), the unpaid special assessments to which such
payment was applied shall for the purposes of this guaranty be deemed to have
continued in existence, notwithstanding such application, and this guaranty shall
be enforceable as to such unpaid special assessments as fully as if such application
had never been made.
9. The undersigned acknowledges and agrees that the City (a) has not
made any representations or warranties with respect to, (b) does not assume any
responsibility to the undersigned for, and (c) has no duty to provide information to
the undersigned regarding, the enforceability of any of the unpaid special
assessments or the financial condition of the Developer or any guarantor. The
undersigned has independently determined the creditworthiness of the Developer
and the enforceability of the unpaid special assessments and until the unpaid
special assessments are paid in full will independently and without reliance on the
City continue to make such determinations.
10. This guaranty shall be binding upon the undersigned and the heirs,
representatives, successors and assigns of the undersigned and shall inure to the
benefit of the City and its participants, successors and assigns. Any invalidity or
unenforceability of any provision or application of this guaranty shall not affect.
other lawful provisions and application hereof, and to this end the provisions of
this guaranty are declared to be severable. This guaranty may not be waived,
modified, amended, terminated, released or otherwise changed except by a writing
signed by the undersigned and the City. This guaranty shall be governed by the
substantive laws (other than the law of conflicts) of the State of Minnesota. The
undersigned waive(s) notice of the City's acceptance hereof.
11. THE UNDERSIGNED HEREBY EXPRESSLY WAIVE(S) ANY
RIGHT TO A TRIAL .BY JURYIN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS (a) UNDER THIS GUARANTY OR
UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH, OR (b) ARISING FROM ANY
RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY,
AND AGREE(S) THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
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IN WITNESS WHEREOF, this guaranty has been duly executed by the
undersigned this [-1 day of a 2002.
Subscribed and sworn to before me
this J'-1 day of , 2002.
Notary Pub -
[(:7-4444
BARA JO MILLER
Y PUBLIC - MINNESOTAssion Expires Jan. 31, 2005
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P.0
TOTAL P.0-7-