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EXHIBIT 10.18
GENERAL CONTINUING GUARANTY
This General Continuing Guaranty ("Guaranty"), dated as of
November 1, 1985, 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 two
irrevocable standby letters of credit in the aggregate amount of $4,600,000.00
(the "Letters of Credit") in favor of Bank One Trust Company, N.A., a national
banking association ("Trustee"), pursuant to that certain Series A
Reimbursement Agreement (the "Series A Reimbursement Agreement") and that
certain Series B Reimbursement Agreement (the "Series B Reimbursement
Agreement"), both between Bank and Radiation Sterilizers, Incorporated, a
California corporation ("Company"), and both dated as of even date herewith
(collectively, the "Reimbursement Agreements"). Capitalized terms used and not
otherwise defined in this Guaranty shall have the same meanings as set forth
for them in the Series A Reimbursement Agreement.
1. Guaranty of Indebtedness. For valuable
consideration, Guarantor irrevocably and jointly, severally 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 Agreements or the other
"Loan Documents" (which latter term, as used throughout this Guaranty, shall
include both Loan Documents as defined in the Series A Reimbursement Agreement
and Loan Documents as defined in the Series B Reimbursement Agreement) or the
issuance by Bank of the Letters of Credit or any payments by Bank thereon. The
word "Indebtedness" is used herein in its most comprehensive sense and includes
(a) any and all existing and future obligations of Company to Bank under the
Reimbursement Agreements or the other 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
Reimbursement Agreements or the other 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 other- wise unenforceable; and (b) any and all
amendments, modifications, renewals and/or extensions of any of the foregoing,
including but not limited to amendments, modifications, renewals
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or extensions which are evidenced by a new or additional instrument, document
or agreement or which change the rate of interest on any Indebtedness.
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 the Reimbursement Agreements and the other Loan Documents.
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 4.4 of the Series A Reimbursement Agreement and Section
4.3 of the Series B 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 satis-
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factory to Bank or by operation of law or otherwise, compound, compromise,
collect or otherwise liquidate any Indebtedness 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
pre-sentments, 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 Letters of Credit and executing the
Reimbursement Agreements and the other Loan Documents, and that Bank would be
unwilling to issue the Letters 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 Reimbursement Agreements or the other
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, determina-
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tion 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 or mortgages described in
subsections 4.2(d) and (e) of the Series A
Reimbursement Agreement (the "Guaranty Deeds of
Trust"), encumbering two parcels of real property
(and the improvements thereon) located in the States
of California and Illinois (the "Guaranty
Properties") and the Guaranty Security Agreement
described in subsection 4.2(h) of the Series A
Reimbursement Agreement (the "Guaranty Security
Agreement"), granting a security interest in certain
personal pro-
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perty relating to the Guaranty Properties (the "Guaranty
Personal Property").
(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 December 31, 1984, and for the period ending
September 30, 1985, 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)).
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(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.
(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 the Reimbursement Agreements or any
other 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 Guaranty Deeds of Trust upon the Guaranty 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 Guaranty Security Agreement upon the Guaranty
Personal Property, and take such actions and execute and deliver to Bank such
instruments and document 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 Guaranty 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 either Guaranty
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,
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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 in connection with the Guaranty Properties:
(a) builder's risk-all risk insurance covering
100% of the replacement cost of all improvements on each Guaranty
Property in the 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 localities where each Guaranty Property is situated
(including insurance against loss by flood if either Guaranty 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
$3,000,000 for a "single occurrence";
(c) property damage insurance in an amount deemed
necessary from time to time by Bank, but in no event less than
$1,000,000;
(d) such business interruption insurance with
respect to business uses of each Guaranty 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 one year);
and
(e) such other policies of insurance as Bank may
reasonably require from time to time.
All such insurance coverages (i) shall be maintained as long as any obligation
of Company or Guarantor in connection with this Agreement, the Reimbursement
Agreements, the Letters of Credit or any of the other Loan Documents remains
outstanding at Company's and/or Guarantor's sole cost and expense, (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
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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 Series A Bonds or the Series B Bonds (as defined in the
Series B Reimbursement Agreement), this Agreement, the Reimbursement
Agreements, the Letters of Credit or any of the other Loan Documents remains
outstanding. All policies insuring against damage to the improvements on
either Guarantor Property shall contain an agreed value clause sufficient to
eliminate any risk of co-insurance.
10.4.1 Delivery of Proceeds to Bank. In the event that,
notwithstanding the "lender's loss payable endorsement" requirement of this
Section 10.4, the proceeds of any insurance policy described herein are paid to
Guarantor, Guarantor shall deliver such proceeds to Bank immediately upon
receipt.
10.4.2 Application of Casualty Insurance Proceeds. Any
proceeds collected (the "Proceeds") under any fire or other physical damage
insurance policy described in this Section 10.4 shall be disbursed to Guarantor
as provided in subsection 10.4.2.1, but only upon fulfillment of each of the
following conditions within 60 days following the occurrence of the damage for
which the Proceeds are collected:
(a) Guarantor shall demonstrate to Bank's reasonable
satisfaction that the Proceeds (together with amounts deposited by
Guarantor pursuant to subsection (b)) will be adequate to accomplish
the repair and reconstruction of the improvements of the Guaranty
Property that has been damaged or destroyed, and to restore the fair
market value of the Guaranty Property to at least the value it had
immediately prior to sustaining the damage, Such demonstration shall
include delivery to Bank of (i) plans and specifications reasonably
satisfactory to Bank and (ii) a construction contract in form and
content, and with a contractor, reasonably satisfactory to Bank.
(b) To the extent that the Proceeds are insufficient to
accomplish the repairs and reconstruction required above, Guarantor
shall deliver to Bank funds (the "Shortfall Funds") in the amount of
such shortfall, which funds shall be assigned to Bank and Trustee as
security for the Secured Obligations and shall be held and disbursed
in the same manner as the Proceeds.
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(c) Guarantor shall execute such documents, in form and
content satisfactory to Bank, as Bank requires to evidence and secure
Guarantor's obligation to use all amounts disbursed for the prompt
repair and reconstruction of the Guaranty Property in accordance with
the plans and specifications approved by Bank.
(d) There shall have occurred no Event of Default which
remains uncured or event which, with the giving of notice or the
passage of time or both, would constitute an Event of Default, and
Bank shall have received a certificate to that effect signed by
Guarantor and a Designated Representative.
10.4.2.1 Any Proceeds and Shortfall Funds to
be disbursed to Guarantor shall be held by Bank in a noninterest- bearing
account and disbursed in accordance with Bank's customary construction lending
practices. Any amounts remaining undisbursed following completion of (and full
payment for) such repairs and reconstruction shall be returned to Guarantor up
to the amount of any Shortfall Funds deposited by Guarantor, and any other
amounts remaining shall, as Bank chooses in its sole and absolute discretion,
either (a) be paid to Guarantor or (b) applied by Bank against (and/or held by
bank as security for) the Secured Obligations, as Bank and Trustee's interests
in the Guaranty Property then appear.
10.4.2.2 In the event Guarantor fails to
fulfill the conditions set forth in subsections 10.4.2(a) through 10.4.2(d)
within 60 days following the date on which the damage occurs, the Proceeds
shall be applied by Bank against (and/or held by Bank as security for) the
Secured Obligations, as Bank and Trustee's interests in the Guaranty Property
then appear.
10.4.2.3 In the event Bank applies any
Proceeds against (and/or Bank holds any Proceeds as security for) any portion
of the Secured Obligations and the fair market value of the Guaranty Property
(together with all other collateral then held by Bank and Trustee for such
obligations) immediately thereafter is, in Bank's reasonable judgment,
inadequate to secure all remaining obligations to Bank and Trustee secured by
the applicable Guaranty Deed of Trust, Bank may thereupon require that
Guarantor, within 30 days of Bank's written demand, provide additional cash
collateral in the minimum amount necessary to adequately secure the shortfall.
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10.5 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.
10.6 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 either Guaranty Property, the construction of
any improvements thereon or Guarantor's operations thereon.
10.7 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
10.7, Guarantor agrees that it will not dissolve or otherwise dispose of all or
substantially all of its assets.
10.8 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
Guaranty 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.
10.9 Maintenance and Furnishing of Properties. Maintain
the Guaranty 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.
10.10 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.
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(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.
10.11 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 Guaranty
Properties during such quarter. Such quarterly statement shall contain such
information as Bank may reasonably require.
10.12 List of Guaranty Personal Property. Deliver to Bank,
from time to time, within thirty days of Bank's request therefor, a list of all
of the Guaranty Personal Property then in existence,
10.13 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 either Guaranty Property;
(b) any dispute between Guarantor and
any municipal or other governmental authority relating to either
Guaranty Property, the adverse determination of which might materially
affect that Guaranty Property;
(c) any threat or commencement of proceedings
in condemnation or eminent domain relating to either Guaranty
Property,
10.14 Security of Properties. Take such measures to
protect the physical security of each Guaranty Property and the Guaranty
Personal Property as Bank may reasonably deem advisable.
10.15 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
either Guaranty Property, together with true and correct copies of each such
lease or other agreement.
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11. Negative Covenants. For so long as any obligation of
Company or Guarantor in connection with the Reimbursement Agreements or any of
the other Loan Documents remains outstanding, Guarantor shall not, unless Bank
otherwise consents in writing:
11.1 Liens on Guaranty Property. Create or cause or
suffer to become effective any mortgage, deed of trust or like lien or
encumbrance affecting either Guaranty Property or any portion of the same,
except for the lien of non-delinquent real property taxes and those matters
listed in Exhibit "D" to the Series A Reimbursement Agreement.
11.2 Liens on Guaranty Personal Property. Install in, or
otherwise use in connection with, any Guaranty Property any Guaranty Personal
Property under any security agreements or similar agreements however
denominated, other than the Permitted Liens (as defined in the Guaranty
Security Agreement), whereby the right is reserved or accrues to anyone to
remove or repossess any such times 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 Series A Bonds and the
Series B Bonds.
11.3 Transfers of Guaranty Property or Obligations.
Assign or delegate any obligations under this Guaranty or any other Loan
Document or sell, assign, convey, lease as a whole or otherwise transfer any
Guaranty Property, any of the Guaranty 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
that Bank has entered into the transactions contemplated by the Reimbursement
Agreements 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.
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11.4 Removal of Personal Property. Remove or permit the
removal from any Guaranty Property of any items of Guaranty Personal Property.
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 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 Guaranty Property on or about any Guaranty
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 either Guaranty 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 either Guaranty 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 quasigovernmental
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 either Guaranty
Deed of Trust or interfere with the intended use of either Guaranty Property.
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
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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 officers 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 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 Texas 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.
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 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:
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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, direction 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.
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18. Governing Law. This Guaranty shall be governed by,
and construed in accordance with, the laws of the State of Texas.
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.
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, the Reimbursement Agreements 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. Condemnation.
Guarantor hereby assigns to Bank and Trustee, for their equal
and ratable benefit, as security for all obligations secured by the Guaranty
Deeds of Trust from time to time, all compensation, awards and other amounts
payable to Guarantor in connection with any taking of any portion of
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any of the Guaranty Properties for public use, and any proceeds of any related
settlement regardless of whether eminent domain proceedings are instituted in
connection therewith (collectively, "Compensation"). Guarantor shall deliver
all Compensation to Bank immediately upon receipt. In the event Bank chooses,
in its sole and absolute discretion, to waive the Event of Default described in
Section 11.1(g) of the Series A Reimbursement Agreement, any Compensation
received by Bank shall be (i) disbursed to Guarantor for repairs and
reconstruction and/or (ii) paid to Guarantor and/or (iii) applied by Bank
and/or Trustee against Guarantor's obligations (or held as security therefor),
in accordance with the rights, procedures and other provisions set forth in
Section 10.3, above, for the application of casualty insurance proceeds; and
the requirements set forth in Sections 10.3.2(b), and 10.3.2.3, respectively,
with regard to Guarantor's deposit of Shortfall Funds and additional collateral
shall also apply.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
"Guarantor":
▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES, a
California limited partnership
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
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Printed Name and Title
GENERAL PARTNER
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