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EXHIBIT 10.24
GENERAL CONTINUING GUARANTY
This General Continuing Guaranty (the "Guaranty"), dated as of
December 1, 1984, is executed by ▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES, a California
limited partnership ("Guarantor") in favor of ▇▇▇▇▇ FARGO BANK, N.A., a
national banking association ("Bank"), in order to induce Bank to issue a
letter of credit in the amount of $5,047,672.00 (the "Letter of Credit") in
favor of Bank One Trust Company, N.A., a national banking association
("Trustee"), pursuant to that certain Letter of Credit Agreement (the
"Reimbursement Agreement") between Bank and Radiation Sterilizers,
Incorporated, a California corporation ("Company") dated as of even date
herewith. Pursuant to the Reimbursement Agreement, the indebtedness of Company
to Bank may be evidenced by one or more promissory notes (the "Notes").
Capitalized terms used herein and not otherwise defined in this Guaranty shall
have the same meanings as set forth in the Reimbursement Agreement.
1. Guaranty of Indebtedness. For valuable
consideration, Guarantor irrevocably and unconditionally guarantees and
promises to pay to Bank, or order, on demand in lawful money of the United
States of America, any and all Indebtedness of Company to Bank arising from or
in connection with the Reimbursement Agreement or the other Loan Documents or
the issuance by Bank of the Letter of Credit or any payments by Bank thereon.
The word "Indebtedness" is used herein in its most comprehensive sense and
includes (a) the indebtedness evidenced by the Notes; (b) any and all existing
and future obligations of Company to Bank under the Loan Documents and
including any and all other present and future advances, debts, obligations and
liabilities of Company heretofore, now, or hereafter made, incurred or created,
whether voluntary or involuntary and however arising from the transaction in
which the Loan Documents were created, whether due or not due, absolute or
contingent, liquidated or unliquidated, determined or undetermined, and whether
Company may be liable individually or jointly with others, or whether recovery
upon such indebtedness may be or hereafter become barred by any statute of
limitations, or whether such indebtedness may be or hereafter become invalid or
otherwise unenforceable; and (c) any and all amendments, modifications,
renewals and/or extensions of any of the foregoing, including but not limited
to amendments, modifications, renewals or extensions which are evidenced by a
new or additional instrument, document or agreement or which change the rate of
interest on any Indebtedness.
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2. Continuing Nature of Guaranty. This is a continuing
guaranty relating to any indebtedness, including that arising under successive
and future transactions which shall either increase or continue the
Indebtedness or from time to time renew it after it has been satisfied.
3. Loan Documents. Guarantor has read, is familiar with
and approves all of the Loan Documents including without limitation the
Reimbursement Agreement and the Notes.
4. Rights Independent. The obligations hereunder are
independent of the obligations of Company or any other guarantor, and a
separate action or actions may be brought and prosecuted against Guarantor
whether or not action is brought and prosecuted against Company or any other
guarantor and whether or not Company or any other guarantor is joined in any
such action or actions; and Guarantor waives the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof. The
liability of Guarantor hereunder shall be reinstated and revived, and the
rights of Bank shall continue, with respect to any amount at any time paid on
account of the Indebtedness guaranteed hereby, which shall thereafter be
required to be restored or returned by Bank upon the bankruptcy, insolvency or
reorganization of Company, or otherwise, all as though such amount had not been
paid.
5. Authority to Modify Obligations. To the extent
permitted under Section 4.6 of the Reimbursement Agreement, Guarantor
authorizes Bank, without notice or demand and without affecting its liability
hereunder; from time to time to: (a) renew, extend, accelerate or otherwise
change the time for payment of, or otherwise change the terms of the
Indebtedness or any part thereof, including increase or decrease of the rate of
interest thereon; (b) accept partial payments on the Indebtedness; (c) accept
new or additional documents, instruments or agreements relative to the
Indebtedness; (d) take and hold security or additional guarantees for the
payment of this Guaranty or the Indebtedness, and amend, alter, exchange,
substitute, transfer, enforce, waive, subordinate, terminate, modify and
release in any manner any such security or guarantees; (e) apply such security
and direct the order or manner of sale thereof as Bank in its discretion may
determine; (f) release or substitute any one or more of any other guarantors;
and (g) settle, release on terms satisfactory to Bank or by operation of law or
otherwise, compound, compromise, collect or otherwise liquidate any
Indebtedness
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and/or security therefor in any manner, consent to the transfer of security and
bid and purchase at any sale, without affecting or impairing the obligations of
Guarantor hereunder. Bank may without notice assign this Guaranty in whole or
in part.
6. Waiver of Defenses. Guarantor waives any right to
require Bank to: (a) proceed against Company or any other guarantor; (b)
proceed against or exhaust any security for the Indebtedness; (c) give notice
of the terms, time and place of any public or private sale of any real or
personal property security for the Indebtedness; or (d) pursue any other remedy
in Bank's power whatsoever. Guarantor waives any defense arising by reason of
any disability or other defense of Company, or by reason of the cessation from
any cause whatsoever of the liability of Company, or by reason of any act or
omission of Bank or others which directly or indirectly results in or aids the
discharge or release of Company or any Indebtedness or any security or guaranty
therefor by operation of law or otherwise. Until all indebtedness of Company
to Bank shall have been paid in full, Guarantor shall have no right of
subrogation, and Guarantor waives any right to enforce any remedy which Bank
now has or may hereafter have against Company or any other guarantor, and
waives any benefit of, and any right to participate in, any security now or
hereafter held by Bank. Guarantor waives all setoffs and counterclaims and all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, and notices of acceptance of this
Guaranty and of the existence, creation, or incurring of new or additional
Indebtedness.
7. Reliance. Guarantor acknowledges that Bank is
relying on this Guaranty and on the financial strength, solvency and business
reputation of Guarantor in issuing the Letter of Credit and executing the Loan
Documents, and that Bank would be unwilling to issue the Letter of Credit in
the absence of this Guaranty.
8. Attorney's Fees. Guarantor agrees to pay a
reasonable attorney's fee and all other costs and expenses which may be
incurred by Bank in the enforcement of this Guaranty and in the collection of
the indebtedness of Company to Bank.
9. Representations and Warranties. Guarantor represents
and warrants to Bank that:
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(a) Formation of Guarantor. Guarantor (i) is a
limited partnership duly organized, validly existing and in good
standing under the laws of the State of California, (ii) has all
requisite power and authority to conduct its business and to own and
lease its properties, and (iii) is in good standing in every
jurisdiction in which the nature of business conducted by it makes
such qualification necessary or where failure to so qualify would have
a material adverse effect on its business or financial condition or
its performance of its obligations hereunder.
(b) Execution, Delivery and Performance of
Guaranty.
(i) Guarantor has all requisite power
and authority to execute and deliver, and to perform
all of its obligations under, this Guaranty.
(ii) The execution and delivery by
Guarantor of, and the performance by Guarantor of all
of its obligations under, this Guaranty have been
duly authorized by all necessary action and do not
and will not:
(1) require any consent or approval
not heretofore obtained of any Person having
any interest in Guarantor;
(2) violate any provision of, or
require any consent under, the partnership
agreement, statement of partnership or any
other governing document applicable to
Guarantor;
(3) result in or require the
creation or imposition of any mortgage, deed
of trust, pledge, lien, security interest,
claim, charge, right of others, or other
encumbrance of any nature (other than under
the Loan Documents) upon or with respect to
any property now owned or leased or hereafter
acquired by Guarantor;
(4) violate any provision of any
law, rule, regulation (including without
limitation Regulations U or X of the Board of
Governors of the Federal Reserve System),
order, writ, judgment, injunction, decree,
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determination or award presently in effect
having applicability to Guarantor; or
(5) result in a breach of or
constitute a default under, or cause or
permit the acceleration of any obligation
owed under, any indenture or loan or credit
agreement or any other agreement, lease, or
instrument to which Guarantor is a party or
by which Guarantor or any of its property is
bound or affected.
(iii) At the time of execution of this
Guaranty, Guarantor is not in default in any respect
that is materially adverse to the interests of the
holder of this Guaranty or that would have any
material adverse effect on the financial condition of
Guarantor or the conduct of its business under any
law, rule, regulation, order, writ, judgment,
injunction, decree, determination, award, indenture,
agreement, lease or instrument described in
subsections (b)(ii)(4) or (5), above.
(iv) No authorization, consent, approval,
order, license, exemption from, or filing or
registration or qualification with, any court or
governmental department, public body, authority,
commission, board, bureau, agency, or
instrumentality, is or will be required to authorize,
or is otherwise required in connection with the
following:
(1) the execution and delivery by
Guarantor of, and the performance by
Guarantor of all of its obligations under,
this Guaranty, or
(2) the creation of the liens,
security interests, or other charges or
encumbrances created by the Deeds of Trust
and the Security Agreement, which secure
Guarantor's obligations hereunder.
(v) This Guaranty, when executed and
delivered, will constitute the legal, valid, and
binding obligation of Guarantor, enforceable against
it in accordance with its terms.
(c) Financial Statements. Guarantor has
furnished to Bank the balance sheet and statement of profit and loss
for Guarantor for the year ending
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December 31, 1983, and for the period ending August 31, 1984, and such
statements fairly present the financial position of Guarantor as of
the date thereof, in conformity with generally accepted accounting
principles.
(d) No Material Adverse Change. There has been
no material adverse change in the condition, financial or otherwise,
of Guarantor since the date of the financial statements described in
subsection (c), above; since that date, Guarantor has not entered into
any material transaction not disclosed in such financial statements or
otherwise disclosed in writing to Bank; Guarantor has no material
liability or contingent liability not reflected or disclosed in such
financial statements or writings; and there are no material mortgages,
deeds of trust, pledges, liens, security interests, claims, charges,
rights of others or encumbrances for borrowed money (including liens
or retained security titles of conditional vendors) of any nature
whatsoever on any property of Guarantor, and no material indebtedness
of Guarantor, not disclosed in such financial statements or otherwise
disclosed to Bank in writing.
(e) Tax Liability. Guarantor has filed all tax
returns (federal, state and local) required to be filed and has paid
all taxes shown thereon to be due and all property taxes due,
including interest and penalties, if any; provided, however, that
Guarantor shall not be required to pay and discharge any such tax so
long as the legality thereof shall be promptly and actively contested
in good faith and by appropriate proceedings. Guarantor has
established and is maintaining adequate reserves for tax liabilities,
if any, in accordance with generally accepted accounting principles
(including any tax liabilities contested pursuant to this subsection
(e)).
(f) Compliance with Laws. Guarantor is and shall
remain in compliance in all material respects with all laws,
regulations and requirements applicable to it and has obtained all
authorizations, consents, approvals, orders, licenses, exemptions
from, and has accomplished all filings or registrations or
qualifications with, any court or governmental department, public
body, authority, commission, board, bureau, agency or instrumentality,
that is necessary for the transaction of its business.
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(g) Litigation. There are no material actions,
suits or proceedings pending or threatened against or affecting
Guarantor or any property of Guarantor before any court or
governmental department, public body, authority, commission, board,
bureau, agency or instrumentality, except as expressly disclosed to
Bank in writing by Guarantor prior to the execution of this Guaranty.
10. Affirmative Covenants. For so long as any obligation
of Company or Guarantor in connection with any Loan Document remains
outstanding, Guarantor shall, unless Bank otherwise consents in writing:
10.1 Protection of Liens on Properties. Maintain the
liens created by the Deeds of Trust upon the Properties and take such actions
and execute and deliver to Bank such instruments and documents as Bank may
reasonably require from time to time in connection therewith.
10.2 Protection of Security Interest in Personal
Property. Maintain the lien created by the Security Agreement upon the
Personal Property, and take such actions and execute and deliver to Bank such
instruments and documents as Bank may reasonably require from time to time in
connection therewith, including without limitation any supplemental security
agreements, form UCC-1 or UCC-2 financing statements or other instruments and
documents extending or perfecting the security interests of Bank and Trustee in
and to the Personal Property as it may exist from time to time.
10.3 Payment of Taxes, Assessments and Charges. Pay all
taxes, assessments, charges and levies imposed by any public authority or
utility company which are or may become a lien affecting any Property or any
part thereof, including without limitation assessments on any appurtenant water
stock; provided, however, that Guarantor shall not be required to pay and
discharge any such tax, assessment, charge or levy so long as (a) the legality
thereof shall be promptly and actively contested in good faith and by
appropriate proceedings and (b) Guarantor maintains reserves adequate to pay
any liabilities contested pursuant to this Section 10.3.
10.4 Insurance. Provide or cause to be provided the
following policies of insurance:
(a) insurance covering 100% of the replacement
cost of all improvements on each Property in the
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event of fire, lightning, windstorm, vandalism, malicious mischief and
such other hazards, casualties and contingencies as are normally and
usually covered by extended coverage policies in effect in the
locality where each Property is situated (including insurance against
loss by flood if the Property is now or hereafter located in an area
designated as being subject to the danger of flood);
(b) public liability insurance in an amount
deemed necessary from time to time by Bank, but in no event less than
$1,000,000.00 for "single occurrence";
(c) property damage insurance in an amount deemed
necessary from time to time by Bank, but in no event less than
$500,000.00;
(d) such business interruption insurance with
respect to business uses of any Property as Bank may require
(including insurance against rental or income loss during a period of
repair or restoration of damage for a period of at least six months);
and
(e) such other policies of insurance as Bank may
reasonably require from time to time.
All such insurance coverages (i) shall be maintained at Guarantor's sole cost
and expense, as long as any obligation of Company or Guarantor in connection
with the Reimbursement Agreement, the Letter of Credit or any of the other Loan
Documents remains outstanding (ii) shall be with insurers of recognized
responsibility which are approved in writing by Bank, (iii) shall be in form
and substance satisfactory to Bank, (iv) shall include a "lender's loss payable
endorsement" (Form 438 BFU) in form and substance satisfactory to Bank,
assuring Bank that all proceeds are to be payable to Bank and Trustee, as their
interests appear, (v) shall contain a provision to the effect that the insurer
shall not cancel the policy or modify it materially and adversely to the
interests of Bank or Trustee, as their interests appear, without first giving
at least thirty (30) days' prior written notice thereof, and (vi) shall be in
such deductible amounts as Bank and Guarantor shall agree upon (in the absence
of which agreement such policies shall not have deductible amounts).
Certificates of insurance for all of the above insurance policies, showing the
same to be in full force and effect, shall be delivered to Bank upon demand by
Bank therefor at any time while any obligation of Company or Guarantor in
connection with the Reimbursement Agreement,
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the Letter of Credit or any of the Loan Documents remains outstanding. All
policies insuring against damage to the improvements on any Property shall
contain an agreed value clause sufficient to eliminate any risk of
co-insurance.
10.5 Title Insurance Indorsements. Deliver or cause to
be delivered to Bank such indorsements and binders to the ALTA Policies in form
and content satisfactory to Bank, as Bank may from time to time require.
10.6 Governmental Approvals. Deliver to Bank, from time
to time at Bank's request, evidence in form and substance satisfactory to Bank
that Guarantor has complied with all applicable laws, ordinances, regulations
and other requirements relating thereto.
10.7 Compliance with Requirements. Comply with all
conditions, covenants, restrictions, easements, reservations, rights, rights of
way and all applicable laws, ordinances, regulations, use permits, occupancy
permits, building permits and other requirements, including without limitation
those affecting or relating to each Property, the construction of any
improvements thereon or Guarantor's operations thereon.
10.8 Continued Existence. Maintain its existence, and
continue to be a limited partnership in good standing in the State of
California. In connection with the covenants given pursuant to this Section
10.8, Guarantor agrees that it will not dissolve or otherwise dispose of all or
substantially all of its assets.
10.9 Books and Records. Maintain full and complete books
of account and other records reflecting the results of its operations (in
conjunction with any other ventures as well as specifically with respect to the
Properties), including without limitation all contributions of equity
investment capital, and provide to Bank, promptly after request by Bank
therefor, such financial statements and other information pertaining to
Guarantor, and the assets and operations of Guarantor, as Bank may from time to
time request.
10.10 Maintenance and Furnishing of Properties. Maintain
the Properties, and each portion thereof (including without limitation
equipment, machinery and fixed assets) fully furnished and in good condition
and repair; and not permit any waste or damage with respect thereto.
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10.11 Annual Operating Statements. Deliver to Bank the
following:
(a) Promptly and in any event within ninety (90)
days after the end of each fiscal year of Guarantor, balance sheets
and statements of income for Guarantor's operations for such fiscal
year, accompanied with all supporting schedules and certificates of
Guarantor's managing general partner that the statements are true and
correct.
(b) Upon request, copies of all such regular or
periodic financial statements or financial reports as Guarantor shall
send to its partners.
(c) Upon request, copies of all such regular or
periodic reports which are available for public inspection which
Guarantor may be required to file with any federal or state
department, bureau, commission or agency, including without limitation
tax returns.
10.12 Quarterly Operating Statements. Deliver to Bank,
upon Bank's request, within thirty (30) days after the end of each calendar
quarter, an income statement reflecting the operation of the Properties during
such quarter. Such quarterly statement shall contain such information as Bank
may reasonably require.
10.13 List of Personal Property. Deliver to Bank, from
time to time, within thirty (30) days of Bank's request therefor, a list of all
of the Personal Property then in existence.
10.14 Notice of Litigation. Give notice to Bank, within
twenty (20) days of Guarantor's learning thereof, of any of the following:
(a) any litigation materially affecting or
relating to any Property;
(b) any dispute between Guarantor and any
municipal or other governmental authority relating to any
Property the adverse determination of which might materially
affect that Property;
(c) any threat or commencement of proceedings in
condemnation or eminent domain relating to any Property.
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10.15 Security of Properties. Take such measures to
protect the physical security of each Property and the Personal Property as
Bank may reasonably deem advisable.
10.16 Copies of Leases. Upon request by Bank, give
written notice to Bank of the entry by Guarantor into any lease or other
agreement pursuant to which any Person is given any right to occupy or use any
portion of any Property, together with true and correct copies of each such
lease or other agreement.
11. Negative Covenants. For so long as any obligation of
Company or Guarantor in connection with any Loan Document remains outstanding,
Guarantor shall not, unless Bank otherwise consents in writing:
11.1 Liens on Property. Create or cause or suffer to
become effective any mortgage, deed of trust or like lien or encumbrance
affecting any Property or any portion of the same, except for the lien of non-
delinquent real property taxes and those matters listed in Exhibit "E" to the
Reimbursement Agreement.
11.2 Liens on Personal Property. Install in, or
otherwise use in connection with, any Property any Personal Property under any
security agreements or similar agreements however denominated, other than the
Permitted Liens (as defined in the Security Agreement), whereby the right is
reserved or accrues to anyone to remove or repossess any such items or whereby
any Person other than Bank or Trustee reserves or acquires a lien upon such
items. In no event shall any financing of personal property be permitted
pursuant to this Section 11.2 if such financing will result in a "determination
of taxability" (as that term is defined in the Bond Documents) as to interest
on the Bonds.
11.3 Transfers of Property or Obligations. Assign or
delegate any obligations under any Loan Document or sell, assign, convey, lease
as a whole or otherwise transfer any Property, any of the Personal Property, or
any interest therein (except for dispositions of personal property permitted
pursuant to Section 11.4, below, occupancy agreements permitted pursuant to
Section 11.5, below and junior encumbrances permitted pursuant to Sections 11.1
and 11.2, above), without (,a) obtaining the express prior written consent of
Bank, which consent may be granted or withheld in its sole discretion; or (b)
providing Bank and Trustee with substitute collateral acceptable to Bank. In
connection with the restrictions contained in this Section 11.3, Guarantor
acknowledges
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that Bank has entered into the transaction contemplated by the Reimbursement
Agreement in reliance upon the financial strength, creditworthiness, reputation
and management expertise of Guarantor and would not have entered into such
transaction but for such reliance.
11.4 Removal of Personal Property. Remove or permit the
removal from any Property of any items of Personal Property (other than tools
and construction equipment intended for use in connection with the construction
of other improvements) except for worn out, surplus or obsolete items provided
that any such items which are removed are promptly replaced with new items
which are more functional or equally functional and in which Bank and Trustee
shall have liens of the priority contemplated under the Loan Documents.
Guarantor shall keep detailed records of each such removal, substitution, sale
or other disposition and make such records available to Bank upon its request
from time to time, and shall execute and deliver to Bank such instruments and
documents as Bank may require in connection with the attachment and perfection
of the security interests of Bank and Trustee in and to any new or replacement
items of Personal Property on or about any Property.
11.5 Leases. Enter into any leases, management
agreements or other agreements pursuant to which any Person is given any right
to occupy, manage or operate any Property or any portion thereof or space
therein other than (a) leases or agreements which are expressly terminable at
will by Guarantor and its successors and assigns on not more than thirty (30)
days' notice, and (b) other leases and agreements, subject to the express prior
written approval of Bank (which approval shall not be unreasonably withheld).
11.6 Easements. Grant, convey or cause to be effective
any easement, license, right of way, or title restriction or limitation
affecting any Property or any portion of the same without the express prior
written consent of Bank (which consent shall not be unreasonably withheld);
provided, however, that Guarantor may grant routine easements which are
reasonably necessary and required by governmental or quasi-governmental
entities or utility companies for the furnishing of utilities or services
without the requirement of such consent by Bank, so long as such easements,
shall not materially weaken, diminish or impair the security of any Deed of
Trust or interfere with the intended use of any Property.
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12. Continuing Financial Reports. Guarantor shall
deliver to Bank, promptly and in any event within thirty (30) days of filing
the same with the Internal Revenue Service, a copy of each federal income tax
return filed while this Guaranty remains in effect. In addition, Guarantor
shall deliver to Bank, on or before July 1 during each year in which this
Guaranty remains in effect, a balance sheet and statement of profit and loss
for Guarantor prepared by a certified public accountant which fairly presents
the financial position of Guarantor as of the end of its most recent fiscal
year.
13. Condition of Company. Guarantor represents and warrants
to Bank that: (a) this Guaranty is executed at Company's request; (b) Guarantor
has established adequate means of obtaining from Company on a continuing basis
financial and other information pertaining to Company's business; and (c)
Guarantor is now and will be completely familiar with the business, operation
and condition of Company and its assets. Guarantor hereby waives and
relinquishes any duty on the part of Bank to disclose to Guarantor any matter,
fact or thing relating to the business, operation or condition of Company and
its assets now known or hereafter known by Bank during the life of this
Guaranty. With respect to any indebtedness of Company to Bank, Bank need not
inquire into the powers of Company or the partners or agents acting or
purporting to act on its behalf, and any indebtedness made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
14. Deeds of Trust on Real Property. In the event that
all or a portion of the present and future indebtedness of Company to Bank is
or may be secured by deeds of trust covering certain interests in real
property, Guarantor authorizes Bank, at its sole option, without notice or
demand and without affecting the liability of Guarantor under this Guaranty, to
foreclose any and all of the deeds of trust by nonjudicial sale. Guarantor
expressly waives any defense to the recovery by Bank against Guarantor of any
deficiency after a nonjudicial sale, even though such a sale may preclude
Guarantor from obtaining reimbursement from Company. Guarantor waives all
suretyship defenses it would otherwise have under California law or under the
laws of any other state. Guarantor waives any right to receive notice of any
judicial or nonjudicial sale or foreclosure of any real property subject to any
of the deeds of trust securing the indebtedness, and Guarantor's failure to
receive any such notice shall not impair or affect Guarantor's liability
hereunder.
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15. Effect of Waivers. Guarantor warrants and agrees
that each of the waivers set forth in this Guaranty is made with Guarantor's
full knowledge of their significance and consequences and that, under the
circumstances, the waivers are reasonable and not contrary to public policy or
law.
16. Notices. All notices, requests, demands, directions
and other communications provided for in this Guaranty and under any Loan
Document that secures this Guaranty must be in writing and must be mailed,
telegraphed, delivered or sent by Telex or cable to the appropriate party at
its address as follows:
If to Guarantor:
▇▇▇▇▇▇▇ ▇▇▇▇ & Associates
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
General Counsel
Radiation Sterilizers, Incorporated
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Bank:
▇▇▇▇▇ Fargo Bank, N.A.
Real Estate Industries Group
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Vice President
with a copy to:
Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Addresses for purposes of notice may be changed from time to time by written
notice sent to the other parties in accordance with this Section 16. Any
notice, request, demand, direc-
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tion or other communication given by telegram, Telex or cable must be confirmed
within 48 hours by letter mailed or delivered to the appropriate party at its
respective address. If any notice, request, demand, direction or other
communication is given by mail it will be effective upon the earlier of (a) 96
hours after deposit in the U.S. Mail, certified or registered mail, return
receipt requested postage prepaid or (b) actual receipt, as indicated by the
return receipt; if given by telegraph or cable, when delivered to the telegraph
company with charges prepaid; if given by Telex, when sent; or if given by
personal delivery, when delivered.
17. Successors and Assigns. This Guaranty shall bind the
successors and assigns of Guarantor, and shall inure to Bank's successors and
assigns.
18. Governing Law. This Guaranty shall be governed by,
and construed in accordance with, the laws of the State of California.
19. Amendments. Neither this Guaranty nor any provision
hereof may be amended, modified, waived, discharged or terminated except by an
instrument in writing duly signed by or on behalf of Bank and Guarantor.
20. Severability. In case any right of Bank herein shall
be held to be invalid, illegal or unenforceable, such invalidity, illegality
and/or unenforceability shall not affect any other right granted hereby.
21. Miscellaneous. All words used herein in the singular
shall be deemed to have been used in the plural, and all words used herein in
the plural shall be deemed to have been used in the singular, where the context
and construction so require. The section headings in this Guaranty are for
convenience of reference only and shall not limit or otherwise affect the
provisions of this Guaranty. This Guaranty may be executed in any number of
counterparts.
22. Rights Cumulative. All of Bank's rights hereunder
are cumulative and not exclusive.
23. Accounting Terms. All accounting terms not
specifically defined in this Guaranty shall be construed in conformity with,
and all financial data required to be submitted by this Guaranty shall be
prepared in conformity with, generally accepted accounting principles applied
on a consistent basis.
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24. Actions. In the event that either Bank or Guarantor
shall bring an action against the other to interpret or enforce the terms or
provisions of this Guaranty or any of the other Loan Documents, the prevailing
party in such action shall be entitled to recover its attorneys' fees and costs
as awarded by a court of competent jurisdiction, whether or not such action is
prosecuted to final judgment.
25. Inconsistency With Security Documents. In the event
that any provision of any Security Document is inconsistent with the provisions
of this Guaranty, the provisions of this Guaranty shall prevail.
26. Real Property Security. This Guaranty is secured by
deeds of trust on real property.
"Guarantor":
▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES
a California limited partnership
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
its sole general partner
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