HEREBY JOINTLY AND SEVERALLY AFFIRM, WARRANT AND
REPRESENT THAT ALL OF THE WARRANTIES AND REPRESENTATIONS MADE IN THE PRIOR NOTE,
THE MORTGAGE, AND THE LOAN DOCUMENTS, AND ANY OTHER DOCUMENTS OR INSTRUMENTS
RECITED HEREIN OR EXECUTED WITH RESPECT THERETO DIRECTLY OR INDIRECTLY, ARE TRUE
AND CORRECT AS OF THE DATE HEREOF AND THAT NEITHER MORTGAGOR NOR GUARANTOR IS IN
DEFAULT OF ANY OF THE FOREGOING NOR AWARE OF ANY DEFAULT WITH RESPECT THERETO,
AND THAT NEITHER MORTGAGOR NOR GUARANTOR HAS ANY DEFENSE OR RIGHT OF OFFSET WITH
RESPECT TO ANY INDEBTEDNESS OWED TO MORTGAGEE.
MORTGAGOR AND GUARANTOR HEREBY
JOINTLY AND SEVERALLY RELEASE MORTGAGEE FROM ANY CAUSE OF ACTION AGAINST IT
EXISTING AS OF THE DATE OF EXECUTION HEREOF.
THE RIGHTS AND DEFENSES BEING
WAIVED AND RELEASED HEREUNDER INCLUDE WITHOUT LIMITATION ANY CLAIM OR DEFENSE
BASED ON THE MORTGAGEE HAVING CHARGED OR COLLECTED INTEREST AT A RATE GREATER
THAN THAT ALLOWED TO BE CONTRACTED FOR BY APPLICABLE LAW AS CHANGED FROM TIME TO
TIME, PROVIDED, HOWEVER, THAT IN NO EVENT SHALL SUCH WAIVER AND RELEASE BE
DEEMED TO CHANGE OR MODIFY THE TERMS OF THE LOAN DOCUMENTS WHICH PROVIDE THAT
SUMS PAID OR RECEIVED IN EXCESS OF THE MAXIMUM RATE OF INTEREST ALLOWED TO BE
CONTRACTED FOR BY APPLICABLE LAW, AS CHANGED FROM TIME TO TIME, REDUCE THE
PRINCIPAL SUM DUE, SAID PROVISION TO BE IN FULL FORCE AND EFFECT.
7.
SECURITY.
THE PARTIES HERETO
ACKNOWLEDGE AND AGREE THAT THE PAYMENT OF THE NOTE, AND THE INDEBTEDNESS
EVIDENCED BY IT, TOGETHER WITH ALL OTHER INDEBTEDNESS OWED TO MORTGAGEE, IS
SECURED BY THE LOAN DOCUMENTS.
8.
NOVATION.
IT IS THE INTENT OF THE
PARTIES THAT THIS INSTRUMENT SHALL NOT CONSTITUTE A NOVATION AND SHALL IN NO WAY
ADVERSELY AFFECT THE LIEN PRIORITY OF THE MORTGAGE AND
3
OTHER LOAN DOCUMENTS REFERRED TO ABOVE.
IN THE EVENT THAT THIS AGREEMENT, OR
ANY PART HEREOF, SHALL BE CONSTRUED BY A COURT OF COMPETENT JURISDICTION AS
OPERATING TO AFFECT THE LIEN PRIORITY OF THE MORTGAGE OR THE OTHER LOAN
DOCUMENTS, OR ANY OF THEM, OVER THE CLAIMS WHICH WOULD OTHERWISE BE SUBORDINATE
THERETO, THEN TO THE EXTENT SO RULED BY SUCH COURT, AND TO THE EXTENT THAT THIRD
PERSONS ACQUIRING AN INTEREST IN SUCH PROPERTY AS IS ENCUMBERED BY THE MORTGAGE
AND OTHER LOAN DOCUMENTS BETWEEN THE TIME OF EXECUTION OF THE MORTGAGE, THE
OTHER LOAN DOCUMENTS, AND THE EXECUTION HEREOF, ARE PREJUDICED THEREBY, THIS
AGREEMENT, OR SUCH PORTION HEREOF AS SHALL BE SO CONSTRUED, SHALL BE VOID AND OF
NO FORCE AND EFFECT AND THIS AGREEMENT SHALL CONSTITUTE, AS TO THAT PORTION, A
SUBORDINATE LIEN ON THE COLLATERAL DESCRIBED THEREIN, INCORPORATING BY REFERENCE
THE TERMS OF THE MORTGAGE AND OTHER LOAN DOCUMENTS, AND WHICH MORTGAGE AND THE
OTHER LOAN DOCUMENTS THEN SHALL BE ENFORCED PURSUANT TO THE TERMS THEREIN
CONTAINED, INDEPENDENT OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT
NOTWITHSTANDING THE FOREGOING, THE PARTIES HERETO, AS BETWEEN THEMSELVES, SHALL
BE BOUND BY ALL TERMS AND CONDITIONS HEREOF UNTIL ALL INDEBTEDNESS OWING FROM
THE MORTGAGOR AND