CONTINUING GUARANTY OF PAYMENT AND PERFORMANCE
Exhibit
10.4
THIS
CONTINUING GUARANTY OF PAYMENT AND PERFORMANCE (the "Guaranty") is entered
into
by and between CRESA
Partners of Orange County, LP, a Delaware limited partnership
(the
"Guarantor"), in favor of First
Republic Bank (the
"Lender") as of June
8, 2006.
A. ASDS
of Orange County, Inc., a Delaware corporation (the
"Borrower"), has requested a loan or loans (collectively, the "Loan") from
the
Lender which will be evidenced by Borrower's promissory note or notes
(collectively, the "Note") in favor of the Lender. The Loan arises out of that
certain loan agreement dated June
8, 2006 (the
"Loan Agreement") executed by Borrower and the Lender. The Note and the Loan
Agreement, together with all security agreements, guaranties, third party pledge
agreements and all other documents now or hereafter executed by Borrower and
delivered to Lender at Lender's request in connection with the Loan, and all
extensions, renewals, modifications and replacements of any or all of such
documents, shall be referred to herein as the "Loan Documents."
B. Guarantors
are shareholders and/or officers of Borrower. Guarantors will benefit by the
proceeds of the Loan to be provided to Borrower.
C. To
induce
Bank to enter into the Loan Agreement and to accept the Notes and to advance
funds to Borrower thereunder, Guarantors are delivering this
Guaranty.
AGREEMENT
THEREFORE,
in consideration of the foregoing and for other valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Guarantor hereby agrees
as follows:
1. Definitions.
For
purposes of this Guaranty, terms not otherwise defined herein shall have the
meaning specified in Exhibit
A to
the
Loan Agreement.
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Guaranty.
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(a) Guaranty
of Obligations. Guarantor
hereby guaranties to Bank, its successors and assigns, as primary obligors
and
not merely as surety, the full and faithful payment of all amounts owed and
performance of each and every one of the obligations, responsibilities and
undertakings to be carried out, performed or observed by Borrower under the
Loan
Documents and all documents executed in connection therewith and any other
agreements or indebtedness of Borrower to Bank (hereafter collectively referred
to as the "Guaranteed Obligations"). The word "indebtedness" is used herein
in
its most comprehensive sense and includes any and all loans, advances, debts,
lease obligations, and other obligations and liabilities of Borrower,
heretofore, now, or hereafter made, incurred or created, whether voluntary
or
involuntary and however arising, whether due or not due, absolute or contingent,
liquidated or nonliquidated, determined or undetermined, whether Borrower may
be
liable individually or jointly with others, or whether recovery upon such
indebtedness may be or hereafter become barred or otherwise
unenforceable.
(b) Guaranty
of Performance. If
at any
time Borrower, its successors or permitted assigns, fails, neglects or refuses
to pay amounts or perform any of its obligations, responsibilities or
undertakings as expressly provided pursuant to the terms and conditions of
the
Guaranteed Obligations, then Guarantors shall pay such amounts or perform or
cause to be performed such obligation, responsibility or undertaking as required
pursuant to the terms and conditions of the Guaranteed
Obligations.
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3. Absolute.
This
Guaranty is irrevocable, absolute, present and unconditional continuing
guaranty. The obligations of Guarantor under this Guaranty shall not be
affected, reduced, modified or impaired upon the happening from time to time
of
any of the following events, whether or not with notice to (except as notice
is
otherwise expressly required herein) or the consent of Guarantor:
(a) Failure
to Give Notice. The
failure to give notice to Guarantor of the occurrence of a default under the
terms and provisions of this Guaranty or the Guaranteed
Obligations;
(b) Modification
or Amendment. The
amendment, acceleration, renewal or extension of any obligation, covenant or
agreement or the Guaranteed Obligations;
(c) Bank's
Failure to Exercise Rights. Any
failure, omission, delay by, or inability on the part of Bank to assert or
exercise any right, power or remedy conferred on Bank in this Guaranty or the
Guaranteed Obligations as the case may be, including the failure to execute
on
collateral held for this Guaranty, the Guaranteed Obligations or the Loan
Documents;
(d) Change
in Borrower. A
termination, dissolution, consolidation or merger of Borrower with or into
any
other entity, the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all of Borrower's assets, the
marshalling of Borrower's assets and liabilities, the receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors, or readjustment of, or other similar
proceedings affecting Borrower, Guarantor, or any of the assets of
either;
(e) Subordination
or Release of Security. Any
subordination or release of any collateral now or hereafter held by Bank for
the
performance of the Guaranteed Obligations;
(f) Assignment.
The
assignment of any right, title or interest of Bank herein or in the Loan
Documents to any other person; or
(g) Extent
of Guarantor's Obligations. Any
other
cause or circumstance, foreseen or unforeseen, whether similar or dissimilar
to
any of the foregoing; it is the intent of Guarantor that the obligations
hereunder shall not be discharged except by: (i) payment of amounts owing
pursuant to this Guaranty and/or Guaranteed Obligations, then only to the extent
of such payment or payments; or (ii) full performance of obligations under
this
Guaranty and/or Guaranteed Obligations, then only to the extent of such
performed or discharged obligation or obligations.
4. Guaranty
of Payment. The
liability of Guarantors on this Guaranty is a guaranty of payment and
performance and not of collectibility, and is not conditional or contingent
on
the genuineness, validity, regularity, or enforceability of the Guaranteed
Obligations or the pursuit by Bank of any remedies that it now has or may
hereafter have with respect thereto, or the cessation of Borrower's liability
for any reason other than full performance under the Loan Documents, including,
without limitation, any and all obligation to indemnify Bank.
5. Authorization.
Guarantor
hereby authorizes Bank, without notice or demand and without affecting its
liability hereunder, and without
consent of Guarantor or prior notice to Guarantor, from time to
time
to: (a) make any modifications to the Guaranteed Agreement with the consent
of
the parties thereto; (b) assign the Guaranteed Obligations and this Guaranty;
(c) take and hold security for the performance of the obligations guarantied
herein with the consent of the party providing such security; and (d) accept
additional guarantors.
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6. Waiver
and Release by Guarantor.
(a) Enforcement
Against Other Parties. Guarantor
hereby waives the right to require Bank to: (i) proceed against Borrower or
any
other person or guarantor; (ii) proceed or exhaust any security held from any
person; (iii) proceed against any other guarantor; or (iv) pursue any other
remedy available to Bank.
(b) Subrogation.
Until
the
Guaranteed Obligations have been paid or otherwise discharged in full, Guarantor
does hereby waive all rights of subrogation and any right to enforce any remedy
which Bank now has, or may have, against Borrower, and Guarantor does hereby
waive any benefit of, and any right to participate in, any security now or
hereafter held by Bank. Guarantor hereby waives any defense it may have now
or
in the future based on any election of remedies by Bank which destroys
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement and Guarantor acknowledges that they will be liable to Bank
even though Guarantor may well have no such recourse against
Borrower.
(c) Notices.
Guarantor
hereby waives notice of (i) acceptance and reliance on this Guaranty,
(ii)
notice of renewal, extension or modification of any of the Guaranteed
Obligations, and (iii) notice of default or demand in the case of
default.
(d) Release
of Third Parties. Guarantor
hereby waives any right or defense it may now or hereafter have based upon
(i)
Bank's release of any party who may be obligated to Bank; (ii) Bank's release
or
impairment of any collateral for the Guaranteed Obligations; and (iii) the
modification or extension of the obligations or agreements guaranteed under
this
Guaranty.
(e) Guarantor
Defenses. Guarantor
hereby waives, to the maximum extent such wavier is permitted by law, any and
all benefits or defenses arising directly or indirectly under any one or more
of: (i) California Civil Code Sections 2799, 2808, 2809, 2810, 2815, 2819,
2820,
2821, 2822, 2838, 2839, 2845, 2846, 2847, 2848, 2849, 2850, 2899 and 3433;
(ii)
Chapter 2 of Title 14 of the California Civil Code; (iii) California Code of
Civil Procedure Sections 580a, 580b, 580c, 580d, 725a and 726; or (iv)
California Commercial Code 3605.
(f) Statute
of Limitations. Guarantor
hereby waives any statute of limitation affecting liability under this Guaranty
or the enforceability of this Guaranty.
(g) Cessation
of Liability of Borrower. Guarantor
waives any defense arising by reason of any disability or other defense of
Borrower or by reason of the cessation from any cause whatsoever of the
liability of Borrower.
(h) Confidentiality
of Accounting. Guarantor
waives the right to assert a confidential relationship, if any, Guarantor may
have with any accounting firm and/or service bureau in connection with any
information requested by Bank pursuant to or in accordance with this Guaranty
or
any agreement in connection with this Guaranty, and agrees that Bank may contact
directly any such accounting firm and/or service bureau in order to obtain
such
information.
(i) Duty
of Disclosure. Guarantor
hereby waives any duty on the part of Bank to disclose to Guarantor any facts
Bank may now or hereafter know about Borrower or Borrower financial condition
regardless of whether Bank has reason to believe that any such facts materially
increase the risk beyond that which Guarantor intends to assume, or has reason
to believe that such facts are unknown to Guarantor, or has a reasonable
opportunity to communicate such facts to Guarantor.
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7. Information.
Guarantors
hereby represent that Guarantors are fully aware of the financial condition
and
operation of Borrower and is in a position by virtue of his relationship to
Borrower to obtain all necessary financial and operational information
concerning Borrower. Beneficiary need not disclose to Guarantors
any information about: (i) the Guaranteed Obligations or any modification
thereto, and any action or non-action
in connection therewith; (ii) any other obligation guarantied hereby; (iii)
the
financial condition or operation of Borrower; or (iv) any other
guaranties.
8. Subordination.
Until
the
Guaranteed Obligations have been paid or otherwise discharged in full, Guarantor
does hereby subordinate any and all liability or indebtedness of Borrower owed
to Guarantors to the obligations of Borrower to Bank which arise under the
Loan
Documents. However, if any Guarantor is an officer of Borrower, such Guarantor
may receive payment of current reasonable salary and current reasonable payments
made in the ordinary course of business for goods provided or services
rendered.
9. Grant
of Security Interest; Bank's Setoff Rights. To
secure
Guarantor's obligations to Bank under this Guaranty, Guarantor grants a security
interest to Bank in, and agrees that Bank shall have a right of setoff against,
all property of Guarantor now or hereafter in the physical possession of or
on
deposit with Bank, including all accounts, deposit accounts, documents,
instruments, general intangibles, chattel paper, and property of Guarantor
held
for safekeeping or otherwise. Bank shall have the right to enforce such security
interest by right of setoff without demand on or notice to Guarantor, and no
waiver or release of any such security interest or right of setoff shall be
valid or enforceable against Bank unless such waiver is expressly set forth
in a
written agreement signed by Bank.
10. Effect
of Borrowers Bankruptcy. The
liability of the Guarantors under this Guaranty shall in no way be affected
by:
(a) the release or discharge of Borrower in any creditor proceeding,
receivership, bankruptcy, or other proceeding; (b) the impairment, limitation,
or modification of the liability of Borrower or the estate of Borrower, or
of
any remedy for the enforcement of Borrower's liability, which may result from
the operation of any present or future provision of the Bankruptcy Code or
any
Insolvency, debtor relief statute (state or federal), or any other statute,
or
from the decision of any court; (c) the rejection or disaffirmance of the
indebtedness, or any portion of the indebtedness, in any such proceeding; or
the
cessation, from any cause whatsoever, whether consensual or by operation of
law,
of the liability of Borrower to Beneficiary resulting from any such
proceeding.
11. Claims
in Bankruptcy. If
Guarantor has not paid Bank the amounts owed under this Guaranty, Guarantor
will
file all claims against Borrower in any bankruptcy or other liquidation
proceeding on any indebtedness of Borrower to the Guarantor, and will assign
to
Bank all rights of Guarantors on any such indebtedness. If Guarantor does not
file any such claim, Bank, as attorney-in-fact for Guarantor, is authorized
to
do so in the name of Guarantor, or, in Bank's discretion, to assign the claim
and to file a proof of claim in the name of Bank's nominee. In all such cases,
whether in bankruptcy or otherwise, the person or persons authorized to pay
such
claim shall pay to Bank the full amount of any such claim, and, to the full
extent necessary for that purpose, Guarantor assigns to Bank all of Guarantor's
rights to any such payments or distributions to which Guarantor would otherwise
be entitled.
12. Applications
of Payments. With
or
without notice to Guarantor, Bank, in its sole discretion and at any time and
from time to time and in such manner and on such terms as it deems fit may:
(a)
apply any or all payments or recoveries from Borrower, from Guarantor, or from
any other guarantors or endorser under this or any other instrument, or realized
from any security, to the indebtedness of Borrower to Bank under the Loan
Documents, in
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such
order or priority as Bank sees fit, whether such indebtedness is guaranteed
by
this Guaranty or is otherwise secured or is due at the time of such application;
and (b) refund to Borrower any payment received by Bank on any indebtedness
hereby guaranteed and payment of the amount refunded shall be fully guaranteed
hereby. Any recovery realized from any other guarantor under this or any other
instrument shall be first credited on that portion of the indebtedness of
Borrower to Beneficiary that exceeds the maximum liability, if any, of
Guarantors under this Guaranty.
13. Representations
and Warranties. Guarantor
hereby represents and warrants to Bank that:
(a) Solvency.
To
the
best of Guarantor's knowledge, upon execution of this Guaranty, Guarantor will
remain liquid; the total value of its assets will exceed its liabilities
(contingent and non-contingent); and it will be able to pay its debts as they
come due.
(b) Authorization
and Enforceability. Guarantor
has duly authorized by all necessary action the execution, delivery and
performance of this Guaranty and neither its execution and delivery of this
Guaranty nor its consummation of the transactions contemplated by this Guaranty
nor its compliance with any of the terms and provisions of this Guaranty does
or
will require any approval not yet received of its stockholders or any approval
or consent of any trustee or holders of any of its obligations and upon their
execution and delivery in accordance with the provisions hereof will constitute
legal, valid and binding agreements and obligations of Guarantor or the party
which executes the same, enforceable in accordance with their respective
terms.
(c) No
Violation. The
execution, delivery and performance by Guarantor of this Guaranty shall not:
(a)
violate any law or regulation by which Guarantor is bound; (b) to the best
of
Guarantor's knowledge constitute an event of default under any agreement to
which Guarantor is now a party or by which Guarantor may be bound; or (c) will
conflict with or result in the breach of, or require any consent under, the
organizational documents of Guarantor.
(d) Financial
Statements. All
financial statements and information relating to Guarantor which have been
delivered by Guarantor to Bank are true and correct and have been prepared
in
accordance with generally accepted accounting principles consistently applied,
and there has been no material adverse change in the financial condition of
Guarantor since its submission.
(e) No
Litigation. There
are
not presently any actions or proceedings pending by or against Guarantor before
any court or administrative agency, and Guarantor has no knowledge of any
pending, threatened or imminent litigation, governmental investigations or
claims, complaints, actions or prosecutions involving Guarantor, except as
heretofore disclosed in writing to Bank.
(f) Place
of Business. Guarantor's
sole place of business or chief executive office or residence is as set forth
in
Section 18(a), and Guarantor covenants and agrees that Guarantor will not,
during the term of this Guaranty, without prior written notification to Bank,
relocate said sole place of business or chief executive office or
residence.
(g) Taxes.
All
assessments and taxes, due or payable by, or imposed, levied or assessed against
any item of Guarantor or Guarantor's assets, have been paid in full before
delinquency.
(h) Continuing
and Cumulative Warranties. Guarantor's
warranties and representations set forth in this Section shall be true and
correct at the time of execution of this Guaranty by Guarantor and shall
constitute continuing representations and warranties as long as any of the
Guaranteed Obligations remain unpaid or unperformed. The warranties,
representations and agreements set forth herein shall be cumulative and in
addition to any and all other warranties, representations and agreements which
Guarantor shall give, or cause to be given, to Bank, either now or
hereafter.
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14.General
Negative Covenants. During
the term hereof and so long as any Guaranteed Obligations remain unpaid or
unperformed, Guarantor will not:
(a) Change
in Identity. Without
prior notice to Bank, change Guarantor's name, business structure, identity,
or
state of formation; nor will Guarantor add any new fictitious name, or relocate
Guarantor's sole place of business or chief executive office or
residence.
(b) Relocation
or Transfer. Other
than in the ordinary course of Guarantor's business, sell, lease, abandon or
otherwise dispose of, move, relocate, or transfer, whether by sale or otherwise
without Bank's prior written consent: (i) Guarantor's business, or (ii) any
item
of collateral securing this Guaranty.
(c) Acquisitions
and Merger. Without
prior notice to Bank, acquire, merge or consolidate with or into any other
business organization or enter into any partnership, joint venture or other
combination; or purchase or lease all or the greater part of the assets or
business of another.
15.General
Affirmative Covenants. Guarantor
hereby covenants and agrees that during the term hereof and until all Guaranteed
Obligations are fully paid and performed:
(a) Accounting
Methods. Guarantor
shall maintain a standard and modern system of accounting in accordance with
generally accepted accounting principles consistently applied, with ledger
and
account cards and/or computer tapes, discs, printouts and records pertaining
to
Guarantor's assets which contain information as may from time-to-time be
required by Bank; not modify or change Guarantor's method of accounting or
enter
into, modify, or terminate any agreement presently existing, permit Bank and
any
of Bank's representatives, on demand, during Guarantor's usual business hours,
or the usual business hours of third persons having control thereof, to have
access to and examine all of Guarantor's books relating to any of Guarantor's
obligations to Bank, Guarantor's financial condition and the results of
Guarantor's operations, and, in connection therewith, permit Bank or any of
Bank's representatives to copy and make extracts therefrom.
(b) Notifications.
Guarantor
shall promptly notify Bank of: (i) any material adverse change in Guarantor's
financial condition and of any condition or event which constitutes a breach
of
or event of default under this Guaranty; (ii) any material pending or threatened
litigation, governmental investigations or claims, complaints, actions or
prosecutions involving Guarantor or the collateral securing this Guaranty;
or
(iii) any material loss of or material damage to any collateral securing this
Guaranty or of any adverse change, known to Guarantor, in the prospect of
payment of any material sums due on any item of collateral securing this
Guaranty.
(c) Reports.
Upon
Bank's request, Guarantor shall deliver to Bank such reports and information
available to Guarantor concerning the collateral securing this Guaranty as
Bank
may reasonably request. Such reports shall be in such form, for such periods,
contain such information, and shall be rendered with such frequency as Bank
may
reasonably designate. All reports and information provided to Bank by Guarantor
shall be complete and accurate in all material respects at the time
provided.
(d) Financial
Statements. Guarantor
shall furnish to Bank, within 90 days after the end of each fiscal year of
Guarantor, on a separate and on a consolidated basis, a balance sheet, a
statement of income and expenses, and a statement of cash flows, all in
reasonable detail in form and content satisfactory to Bank and prepared in
accordance with generally accepted accounting principals, showing the results
of
Guarantor's operations for such fiscal year; and deliver to Bank upon the filing
thereof copies of the Guarantor's federal income tax returns.
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(e) Further
Assurances. It
will
from time to time as reasonably required by Bank perform such other acts, and
execute and deliver to Bank such additional assignments, agreements and
instruments, as Bank may reasonably request in connection with the
administration and enforcement of this Guaranty and/or Bank's rights, powers
and
remedies hereunder.
(f) Compliance
with Laws. Guarantor
will comply with all Governmental Requirements.
16. Revival
of Guaranty. If
a
claim ("Claim') is made upon Bank at any time (whether before or after payment
or performance in full of any of the Guaranteed Obligations) for repayment
or
recovery of any amount or other value received by Bank (from any source) in
payment of, or on account of, any of the Guaranteed Obligations and if Bank
repays such amount, returns value or otherwise becomes liable for all or part
of
such Claim by reason of (a) any judgment, decree or order of any court or
administrative body or (b) any settlement or compromise of such Claim, Guarantor
shall remain severally liable to Bank hereunder for the amount so repaid or
returned or for which Bank is liable to the same extent if such payments or
value had never been received by Bank, notwithstanding any termination of this
Guaranty nor the cancellation of any note or other document evidencing the
Guaranteed Obligations.
17. Continuing
Guaranty. This
Guaranty is, as to each Guarantor, a continuing guaranty, which shall remain
effective without reaffirmation until it has been terminated in a writing sent
by certified mail to Bank at the address set forth below. Such termination
shall
be applicable only to transactions committed to or having their inception after
the effective date of termination and upon actual receipt of written notice
by
Bank and shall not affect rights and obligations arising out of transactions
committed to or having their inception prior to such date. Termination by any
Guarantor shall not affect the continuing liability hereunder of any Guarantor
who does not give notice of termination. Guarantor acknowledges and agrees
that
the indebtedness of Borrower may be a revolving credit and/or that the amount
of
the indebtedness may at any one time be zero dollars, which shall not constitute
a termination of this Guaranty.
18. Miscellaneous.
(a) Notices.
Any
notice, demand or request required hereunder shall be given in writing (at
the
addresses set forth below) by any of the following means: (a) personal service;
(b) electronic communication, whether by telex, telegram or telecopying; (c)
overnight courier; or (d) registered or certified, first class U.S. mail, return
receipt requested.
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To
Guarantor:
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CRESA
Partners of Orange County, LP,
a
Delaware limited partnership
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To
Bank:
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FIRST
REPUBLIC BANK
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Attn:
Commercial Loan Operations
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or
at
such other address as such party may designate by ten (10) days' advance written
notice to the other party hereto pursuant to this section. Any notice, demand
or
request sent pursuant to subsection (c), above, shall be deemed received on
the
business day immediately following deposit with the overnight courier, and,
if
sent pursuant to subsection (d), above, shall be deemed received forty-eight
(48) hours following deposit into the U.S. mail.
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(b) No
Waiver. No
failure or delay by Bank or its assigns in exercising any right, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single
or
partial exercise thereof preclude any other or further exercise thereof or
the
exercise of any other right, power or privilege.
(c) California
Law. The
validity, interpretation, enforcement of this Guaranty and the rights of the
parties hereunder shall he determined under, governed by and construed in
accordance with the laws of the State of California. The parties agree that
all
actions or proceedings arising in connection with this Guaranty shall be tried
and litigated only in the state courts or federal court located in the County
of
San Francisco, State of California. Guarantor waives any right Guarantor may
have to assert the doctrine of forum non conveniens or to object to such venue
and hereby consents to any court-ordered relief.
(d) Advice
of Counsel. Guarantor
expressly declares that they know and understand the contents of this Guaranty
and has had an opportunity to consult with an attorney regarding
it.
(e) Attorneys'
Fees. On
demand, Guarantor shall reimburse Bank for all costs and expenses, including,
without limitation, reasonable attorneys' fees costs and disbursements (and
fees
and disbursements of Bank's in-house counsel) (collectively the "Fees and
Costs") expended or incurred by Bank in any way in connection with: (a) the
amendment, interpretation and enforcement of this Guaranty; (b) collecting
any
sum which becomes due Bank; (c) any proceeding, or any appeal; or (d) the
protection, preservation of enforcement of any rights of Bank under this
Guaranty. Fees and Costs shall include, without limitation, attorneys Fees
and
Costs incurred in connection with the following: (1) contempt proceedings;
(2)
discovery; (3) any motion, adversary proceeding, contested matter, confirmation
or opposition to plan of reorganization or any other activity of any kind in
connection with a bankruptcy case or relating to any petition under Title 11
of
the United States Code; (4) garnishment, levy, and debtor and third party
examinations; and (5) postjudgment motions and proceedings of any kind,
including without limitation any activity taken to collection or enforce any
judgment.
(f) Agreement
Binding; Assignability. This
Guaranty shall be binding and deemed effective when executed by Guarantor and
accepted and executed by Bank. This Guaranty shall bind and inure to the benefit
of the respective executors, administrators, successors and assigns of each
of
the parties. Guarantor may not assign this Guaranty or any rights hereunder
without Bank's prior written consent and any prohibited assignment shall be
void. No consent to an assignment by Bank shall release Guarantor from its
obligations to Bank. Bank may assign, negotiate or grant participations in
all
or any part of Bank's rights and benefits hereunder. In connection therewith,
Bank may disclose all documents and information which Bank now has or hereafter
may have relating to Guarantor or Guarantor's business.
(g) Joint
and Several. If
more
than one party signs this Guaranty, this Guaranty shall be binding jointly
and
severally on each such Guarantor and its assets.
(h) Captions.
Headings
have been set forth herein for convenience only and shall not affect the
interpretation or meanings of any provisions of this Guaranty. Unless the
contrary is compelled by the context, everything contained in each article
and
section applies equally to this entire Guaranty.
(i) Severability.
Each
provision of this Guaranty shall be severable from every other provision for
the
purpose of determining the legal enforceability of any specific
provision.
(j) Further
Assurances. Guarantor
will promptly and duly execute and deliver to Bank such further documents and
assurances and take such further action as Bank may from time to time reasonably
request including, without limitation, any amendments hereto in order to
establish and protect the rights, interests and remedies created or intended
to
be created in favor of Bank hereunder.
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(k) Cumulative
Rights. Guarantor's
liability and Bank's rights, powers, and remedies hereunder and under any other
agreement now or hereafter relating hereto, shall be cumulative and not
alternative, and such rights, powers, and remedies shall be in addition to
all
rights, powers, and remedies given to Bank by law. This Guaranty is in addition
to and exclusive of the guaranty of any other guarantors of any indebtedness
of
Borrower to Bank.
(l) Construction.
Neither
this Guaranty nor any uncertainty or ambiguity herein shall be construed or
resolved against Bank, whether under any rule of construction or otherwise.
This
Guaranty has been reviewed by all parties and shall be construed according
to
the ordinary meaning of the words used so as to fairly accomplish the purposes
and intentions of all parties hereto.
(m) No
Third Party Beneficiaries. This
Guaranty is entered into for the sole protection and benefit of Bank, and its
successors and assigns. No other person shall have any rights
hereunder.
(n) No
Waiver by Bank. No
waiver
by the Bank of any of its rights or remedies in connection with this Guaranty
shall be effective unless such waiver is in writing and signed by the Bank.
No
act or omission by Bank to exercise a right as to any event shall be construed
as continuing, or as a waiver or release of, any subsequent right, remedy or
recourse as to a subsequent event.
(o) Integration.
Except
as
to currently existing obligations of Guarantor to Bank, all prior agreements,
understandings, representations, warranties, and negotiations between the
parties whether written or oral, if any, are merged into this
Guaranty.
(p) Destruction
of Guarantor's Documents. Any
documents, schedules, invoices or other papers delivered to Bank may be
destroyed or otherwise disposed of by Bank six (6) months after they are
delivered to or received by Bank unless Guarantor does request, in writing,
the
return of the said documents, schedule, invoices or other papers and makes
arrangements, at Guarantor's expense, for their return.
(q) Separate
Property. Any
married person who signs this Guaranty expressly agrees that recourse may be
had
against his/her separate property for his or her obligations
hereunder.
(r) Time
of Essence. Time
is
of the essence of each provision of this Guaranty.
(s) Performance
of Covenants. Guarantor
shall perform all of its covenants under this Guaranty at its sole cost and
expense.
(t) Term.
This
Guaranty shall continue in full force and effect as long as any of the
Guaranteed Obligations are outstanding and until terminated by written agreement
of Bank.
(u) Amendment.
This
Guaranty may be modified, amended or terminated only by a written agreement
signed by Guarantor and Bank.
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19. Waiver
of Jury Trial. BANK
AND GUARANTOR HEREBY VOLUNTARILY, UNCONDITIONALLY AND IRREVOCABLY WAIVE, TO
THE
EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION ARBITRATION
OR PROCEEDING IN A
STATE
OR FEDERAL COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS
GUARANTY, OR THE OBLIGATIONS, OR ANY INSTRUMENT OR DOCUMENT DELIVERED IN
CONNECTION WITH THIS GUARANTY, OR THE TRANSACTIONS CONTEMPLATED HEREBY, OR
THE
VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR
ANY
OTHER CLAIM OR DISPUTE HOWSOEVER ARISING (INCLUDING TORT AND CLAIMS FOR BREACH
OF DUTY), BETWEEN BANK AND GUARANTOR.
IN
WITNESS WHEREOF, the undersigned Guarantor have caused this Guaranty to be
duly
executed as of the day and year first above written.
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Guarantor:
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CRESA
Partners of Orange County, LP,
a
Delaware limited partnership
|
|
By:
CRESA Partners-West, Inc.,
a
California corporation
Its:
General Partner
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By:
/s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, President
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