Exhibit 10.13
GENERAL CONTINUING GUARANTY
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This GENERAL CONTINUING GUARANTY (this "Guaranty"), dated as of
October 7, 2003, is executed and delivered by and among each of the undersigned
Affiliates of XXXXXX RESPIRATORY CARE INC., a California corporation
("Borrower") (each such Affiliate individually a "Guarantor", and individually
and collectively, jointly and severally, the "Guarantors"), and XXXXX FARGO
FOOTHILL, INC., a California corporation, as the arranger and administrative
agent for the Lenders (in such capacity, together with its successors and
assigns, if any, in such capacity, "Agent"), in light of the following:
WHEREAS, Borrower and the Lender Group are, contemporaneously
herewith, entering into the Loan Agreement;
WHEREAS, in order to induce the Lender Group to extend financial
accommodations to Borrower pursuant to the Loan Agreement, and in consideration
thereof, and in consideration of any loans or other financial accommodations
heretofore or hereafter extended by the Lender Group to Borrower, whether
pursuant to the Loan Agreement or otherwise, each Guarantor has agreed to
guaranty the Guarantied Obligations; and
WHEREAS, each Guarantor is an Affiliate of Borrower, and will benefit
by virtue of the financial accommodations from the Lender Group to Borrower.
NOW, THEREFORE, in consideration of the foregoing, each Guarantor and
Agent hereby agrees, as follows:
1. Definitions and Construction.
(a) Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the Loan Agreement.
The following terms, as used in this Guaranty, shall have the following
meanings:
"Agent" has the meaning set forth in the preamble to this
Guaranty.
"Borrower" has the meaning set forth in the preamble to this
Guaranty.
"Guarantied Obligations" means, the Obligations, as defined in
the Loan Agreement.
"Guarantor" and "Guarantors" have the respective meanings set
forth in the preamble to this Guaranty.
"Guaranty" has the meaning set forth in the preamble to this
Guaranty.
"Indebtedness" shall mean any and all obligations (including the
Obligations), indebtedness, or liabilities of any kind or character owed by
Borrower and arising directly or indirectly out of or in connection with
the Loan Agreement or the other Loan Documents, including all such
obligations, indebtedness, or liabilities, whether for
principal, interest (including any and all interest which, but for the
application of the provisions of the Bankruptcy Code, would have accrued on
such amounts), premium, reimbursement obligations, fees, costs, expenses
(including attorneys fees), or indemnity obligations, whether heretofore,
now, or hereafter made, incurred, or created, whether voluntarily or
involuntarily made, incurred, or created, whether secured or unsecured (and
if secured, regardless of the nature or extent of the security), whether
absolute or contingent, liquidated or unliquidated, or determined or
indeterminate, whether Borrower is liable individually or jointly with
others, and whether recovery is or hereafter becomes barred by any statute
of limitations or otherwise becomes unenforceable for any reason
whatsoever, including any act or failure to act by any member of the Lender
Group.
"Lender Group" means, individually and collectively, each of the
Lenders and Agent.
"Lenders" means, individually and collectively, each of the
lenders identified on the signature pages of the Loan Agreement, and any
other person made a party thereto in accordance with the provisions of
Section 14 thereof (together with their respective successors and assigns).
"Loan Agreement" shall mean that certain Loan and Security
Agreement, of even date herewith, entered into among Borrower, the Lenders,
and Agent.
(b) Construction. Unless the context of this Guaranty clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, the part includes the whole, the terms
"include" and "including" are not limiting, and the term "or" has the inclusive
meaning represented by the phrase "and/or." The words "hereof," "herein,"
"hereby," "hereunder," and other similar terms refer to this Guaranty as a whole
and not to any particular provision of this Guaranty. Any reference in this
Guaranty to any of the following documents includes any and all permitted
alterations, amendments, restatements, extensions, modifications, renewals, or
supplements thereto or thereof, as applicable: the Loan Agreement, any of the
Loan Documents, or this Guaranty. Neither this Guaranty nor any uncertainty or
ambiguity herein shall be construed or resolved against Agent, the Lenders, or
any Guarantor, whether under any rule of construction or otherwise. On the
contrary, this Guaranty has been reviewed by Guarantors, Agent, the Lenders, and
their respective counsel, and shall be construed and interpreted according to
the ordinary meaning of the words used so as to fairly accomplish the purposes
and intentions of Agent, the Lenders and Guarantors.
2. Guarantied Obligations. Each Guarantor, jointly and severally, hereby
irrevocably and unconditionally guaranties to Agent, for the benefit of the
Lender Group, as and for its own debt, until final and indefeasible payment
thereof has been made, (a) the payment of the Guarantied Obligations, in each
case when and as the same shall become due and payable, whether at maturity,
pursuant to a mandatory prepayment requirement, by acceleration, or otherwise;
it being the intent of such Guarantor that the guaranty set forth herein shall
be a guaranty of payment and not a guaranty of collection; and (b) the punctual
and faithful performance, keeping, observance, and fulfillment by Borrower of
all of the agreements, conditions, covenants, and obligations of Borrower
contained in the Loan Agreement and under each of the other Loan Documents.
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3. Continuing Guaranty. This Guaranty includes Guarantied Obligations
arising under successive transactions continuing, compromising, extending,
increasing, modifying, releasing, or renewing the Guarantied Obligations,
changing the interest rate, payment terms, or other terms and conditions
thereof, or creating new or additional Guarantied Obligations after prior
Guarantied Obligations have been satisfied in whole or in part. To the maximum
extent permitted by law, each Guarantor hereby waives any right to revoke this
Guaranty as to future Indebtedness. If such a revocation is effective
notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees
that (a) no such revocation shall be effective until written notice thereof has
been received by Agent, (b) no such revocation shall apply to any Guarantied
Obligations in existence on such date (including any subsequent continuation,
extension, or renewal thereof, or change in the interest rate, payment terms, or
other terms and conditions thereof), (c) no such revocation shall apply to any
Guarantied Obligations made or created after such date to the extent made or
created pursuant to a legally binding commitment of Agent in existence on the
date of such revocation, (d) no payment by any Guarantor, Borrower, or from any
other source, prior to the date of such revocation shall reduce the maximum
obligation of such Guarantor hereunder, and (e) any payment by Borrower or from
any source other than such Guarantor subsequent to the date of such revocation
shall first be applied to that portion of the Guarantied Obligations as to which
the revocation is effective and which is not, therefore, guarantied hereunder,
and to the extent so applied shall not reduce the maximum obligation of such
Guarantor hereunder.
4. Performance Under this Guaranty. In the event that Borrower fails to
make any payment of any Guarantied Obligations, on or before the due date
thereof, or if Borrower shall fail to perform, keep, observe, or fulfill any
other obligation referred to in clause (b) of Section 2 hereof in the manner
provided in the Loan Agreement or the other Loan Documents, as applicable (and
subject to any applicable grace or notice periods expressly provided for in the
Loan Agreement), each Guarantor immediately shall cause such payment to be made
or each of such obligations to be performed, kept, observed, or fulfilled.
5. Primary Obligations. This Guaranty is a primary and original
obligation of each Guarantor, is not merely the creation of a surety
relationship, and is an absolute, unconditional, and continuing guaranty of
payment and performance that shall remain in full force and effect without
respect to future changes in conditions. Each Guarantor hereby agrees that it is
directly, jointly and severally with any other guarantor of the Guarantied
Obligations, liable to Agent for the benefit of the Lender Group, that the
obligations of such Guarantor hereunder are independent of the obligations of
Borrower or any other guarantor, and that a separate action may be brought
against such Guarantor, whether such action is brought against Borrower or any
other guarantor or whether Borrower or any other guarantor is joined in such
action. Each Guarantor hereby agrees that its liability hereunder shall be
immediate and shall not be contingent upon the exercise or enforcement by the
Lender Group of whatever remedies they may have against Borrower or any other
guarantor, or the enforcement of any lien or realization upon any security the
Lender Group may at any time possess. Each Guarantor hereby agrees that any
release that may be given by Agent on behalf of the Lender Group to Borrower or
any other guarantor shall not release such Guarantor. Each Guarantor consents
and agrees that no member of the Lender Group shall be under any obligation to
marshal any property or assets of Borrower or any other guarantor in favor of
such Guarantor, or against or in payment of any or all of the Guarantied
Obligations.
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6. Waivers.
(a) To the fullest extent permitted by applicable law, each Guarantor
hereby waives: (i) notice of acceptance hereof; (ii) notice of any loans or
other financial accommodations made or extended under the Loan Agreement, or the
creation or existence of any Guarantied Obligations; (iii) notice of the amount
of the Guarantied Obligations, subject, however, to such Guarantor's right to
make inquiry of Agent to ascertain the amount of the Guarantied Obligations at
any reasonable time; (iv) notice of any adverse change in the financial
condition of Borrower or of any other fact that might increase such Guarantor's
risk hereunder; (v) notice of presentment for payment, demand, protest, and
notice thereof as to any instrument among the Loan Documents; (vi) notice of any
Default or Event of Default under the Loan Agreement; and (vii) all other
notices (except if such notice is specifically required to be given to such
Guarantor under this Guaranty or any other Loan Documents to which such
Guarantor is a party) and demands to which such Guarantor might otherwise be
entitled.
(b) To the fullest extent permitted by applicable law, each Guarantor
hereby waives the right by statute or otherwise to require the Lender Group to
institute suit against Borrower or to exhaust any rights and remedies that the
Lender Group has or may have against Borrower. In this regard, each Guarantor
agrees that it is bound to the payment of each and all Guarantied Obligations,
whether now existing or hereafter arising, as fully as if the Guarantied
Obligations were directly owing to the Lender Group or its Affiliates, as
applicable, by such Guarantor. Each Guarantor further waives any defense arising
by reason of any disability or other defense (other than the defense that the
Guarantied Obligations shall have been performed and indefeasibly paid in cash,
to the extent of any such payment) of Borrower or by reason of the cessation
from any cause whatsoever of the liability of Borrower in respect thereof.
(c) To the fullest extent permitted by applicable law, each Guarantor
hereby waives: (i) any rights to assert against the Lender Group any defense
(legal or equitable), set-off, counterclaim, or claim that such Guarantor may
now or at any time hereafter have against Borrower or any other party liable to
the Lender Group; (ii) any defense, set-off, counterclaim, or claim, of any kind
or nature, arising directly or indirectly from the present or future lack of
perfection, sufficiency, validity, or enforceability of the Guarantied
Obligations or any security therefor; (iii) any defense arising by reason of any
claim or defense based upon an election of remedies by the Lender Group,
including any defense based upon an election of remedies by the Lender Group
under the provisions of Sections 580d and 726 of the California Code of Civil
Procedure, or any similar law of any other jurisdiction; (iv) the benefit of any
statute of limitations affecting such Guarantor's liability hereunder or the
enforcement thereof, and any act that shall defer or delay the operation of any
statute of limitations applicable to the Guarantied Obligations shall similarly
operate to defer or delay the operation of such statute of limitations
applicable to such Guarantor's liability hereunder.
(d) Until such time as all of the Guarantied Obligations have been
fully and finally paid in full in cash, each Guarantor hereby postpones and
agrees not to assert any right (i) of subrogation such Guarantor has or may have
against Borrower with respect to the Guarantied Obligations, including, without
limitation, under any one or more of California Civil Code Sections 2847, 2848,
and 2849 or any similar law of any other jurisdiction; (ii) to proceed against
Borrower or any other Person, now or hereafter, for contribution, indemnity,
reimbursement, or
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any other suretyship rights and claims (irrespective of whether direct or
indirect, liquidated or contingent), with respect to the Guarantied Obligations;
and (iii) to proceed or to seek recourse against or with respect to any property
or asset of Borrower.
(e) If any of the Guarantied Obligations at any time are secured by a
mortgage or deed of trust upon real property, the Lender Group may elect, in its
sole discretion, upon a default with respect to the Guarantied Obligations, to
foreclose such mortgage or deed of trust judicially or nonjudicially in any
manner permitted by law, before or after enforcing this Guaranty, without
diminishing or affecting the liability of any Guarantor hereunder. Each
Guarantor understands that (a) by virtue of the operation of California's
antideficiency law applicable to nonjudicial foreclosures or any similar laws of
any other jurisdiction, an election by the Lender Group nonjudicially to
foreclose such a mortgage or deed of trust probably would have the effect of
impairing or destroying rights of subrogation, reimbursement, contribution, or
indemnity of such Guarantor against Borrower or other guarantors or sureties,
and (b) absent the waiver given by such Guarantor herein, such an election would
estop the Lender Group from enforcing this Guaranty against such Guarantor.
Understanding the foregoing, and understanding that the Guarantors hereby are
relinquishing a defense to the enforceability of this Guaranty, each Guarantor
hereby waives any right to assert against the Lender Group any defense to the
enforcement of this Guaranty, whether denominated "estoppel" or otherwise, based
on or arising from an election by the Lender Group nonjudicially to foreclose
any such mortgage or deed of trust. Each Guarantor understands that the effect
of the foregoing waiver may be that such Guarantor may have liability hereunder
for amounts with respect to which such Guarantor may be left without rights of
subrogation, reimbursement, contribution, or indemnity against Borrower or other
guarantors or sureties. Each Guarantor also agrees that the "fair market value"
provisions of Section 580a of the California Code of Civil Procedure or any
similar laws of any other jurisdiction shall have no applicability with respect
to the determination of such Guarantor's liability under this Guaranty.
(f) Without limiting the generality of any other waiver or other
provision set forth in this Guaranty, each Guarantor waives all rights and
defenses that such Guarantor may have if Borrower's debt is secured by real
property. This means, among other things:
(i) The Lender Group may collect from any Guarantor without
first foreclosing on any real or personal property collateral that may be
pledged by Borrower.
(ii) If the Lender Group foreclose(s) on any real property
collateral that may be pledged by Borrower:
(1) the amount of the debt may be reduced only by the price
for which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price.
(2) the Lender Group may collect from any Guarantor even if
the Lender Group, by foreclosing on the real property collateral,
has/have destroyed any right any Guarantor may have to collect from
Borrower.
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This is an unconditional and irrevocable waiver of any rights and defenses each
Guarantor may have if Borrower's debt is secured by real property. These rights
and defenses are based upon Section 580a, 580b, 580d, or 726 of the California
Code of Civil Procedure or any similar laws of any other jurisdiction.
(G) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER
PROVISION SET FORTH IN THIS GUARANTY, EACH GUARANTOR HEREBY WAIVES, TO THE
MAXIMUM EXTENT SUCH WAIVER IS PERMITTED BY LAW, ANY AND ALL BENEFITS OR DEFENSES
ARISING DIRECTLY OR INDIRECTLY UNDER ANY ONE OR MORE OF CALIFORNIA CIVIL CODE
Sections 2799, 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2845,
AND 2850, CALIFORNIA CODE OF CIVIL PROCEDURE Sections 580a, 580b, 580c, 580d,
AND 726, AND CHAPTER 2 OF TITLE 14 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR
LAWS OF ANY OTHER JURISDICTION.
(H) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER
PROVISION SET FORTH IN THIS GUARANTY, EACH GUARANTOR WAIVES ALL RIGHTS AND
DEFENSES ARISING OUT OF AN ELECTION OF REMEDIES BY THE LENDER GROUP, EVEN THOUGH
THAT ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT TO
SECURITY FOR A GUARANTIED OBLIGATION, HAS DESTROYED SUCH GUARANTOR'S RIGHTS OF
SUBROGATION AND REIMBURSEMENT AGAINST BORROWER BY THE OPERATION OF SECTION 580d
OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR OTHERWISE.
7. Releases. Each Guarantor consents and agrees that, without notice to
or by such Guarantor and without affecting or impairing the obligations of such
Guarantor hereunder, the Lender Group may, by action or inaction, compromise or
settlement, extend the period of duration or the time for the payment, or
discharge the performance of, or may refuse to, or otherwise not enforce, or
may, by action or inaction, release all or any one or more parties to, any one
or more of the terms and provisions of the Loan Agreement or any of the other
Loan Documents or may grant other indulgences to Borrower in respect thereof, or
may amend or modify in any manner and at any time (or from time to time) any one
or more of the Loan Agreement or any of the other Loan Documents, or may, by
action or inaction, release or substitute any other guarantor, if any, of the
Guarantied Obligations, or may enforce, exchange, release, or waive, by action
or inaction, any security for the Guarantied Obligations or any other guaranty
of the Guarantied Obligations, or any portion thereof.
8. No Election. The Lender Group shall have the right to seek recourse
against any Guarantor to the fullest extent provided for herein and no election
by the Lender Group to proceed in one form of action or proceeding, or against
any party, or on any obligation, shall constitute a waiver of the Lender Group's
right to proceed in any other form of action or proceeding or against other
parties unless Agent on behalf of the Lender Group has expressly waived such
right in writing. Specifically, but without limiting the generality of the
foregoing, no action or proceeding by the Lender Group under any document or
instrument evidencing the Guarantied Obligations shall serve to diminish the
liability of the Guarantors under this Guaranty
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except to the extent that the Lender Group finally and unconditionally shall
have realized indefeasible payment by such action or proceeding.
9. Indefeasible Payment. The Guarantied Obligations shall not be
considered indefeasibly paid for purposes of this Guaranty unless and until all
payments to the Lender Group are no longer subject to any right on the part of
any person whomsoever, including Borrower, Borrower as a debtor in possession,
or any trustee (whether appointed under the Bankruptcy Code or otherwise) of
Borrower's assets to invalidate or set aside such payments or to seek to recoup
the amount of such payments or any portion thereof, or to declare same to be
fraudulent or preferential. In the event that, for any reason, all or any
portion of such payments to the Lender Group is set aside or restored, whether
voluntarily or involuntarily, after the making thereof, the obligation or part
thereof intended to be satisfied thereby shall be revived and continued in full
force and effect as if said payment or payments had not been made and the
Guarantors shall be liable for the full amount the Lender Group is required to
repay plus any and all reasonable costs and expenses (including reasonable
attorneys fees) paid by the Lender Group in connection therewith.
10. Financial Condition of Borrower. Each Guarantor represents and
warrants to the Lender Group that it is currently informed of the financial
condition of Borrower and of all other circumstances that a diligent inquiry
would reveal and that bear upon the risk of nonpayment of the Guarantied
Obligations. Each Guarantor further represents and warrants to the Lender Group
that it has read and understands the terms and conditions of the Loan Agreement
and the other Loan Documents. Each Guarantor hereby covenants that it will
continue to keep itself informed of Borrower's financial condition, the
financial condition of other guarantors, if any, and of all other circumstances
which bear upon the risk of nonpayment or nonperformance of the Guarantied
Obligations.
11. Payments; Application. All payments to be made hereunder by any
Guarantor shall be made in lawful money of the United States of America at the
time of payment, shall be made in immediately available funds, and shall be made
without deduction (whether for taxes or otherwise) or offset. All payments made
by any Guarantor hereunder shall be applied as follows: first, to all reasonable
costs and expenses (including reasonable attorneys fees) incurred by the Lender
Group in enforcing this Guaranty or in collecting the Guarantied Obligations;
second, to all accrued and unpaid interest, premium, if any, and fees owing to
the Lender Group constituting Guarantied Obligations; and third, to the balance
of the Guarantied Obligations.
12. Attorneys Fees and Costs. Each Guarantor agrees to pay, on demand, all
reasonable attorneys fees and all other reasonable costs and expenses that may
be incurred by the Lender Group in the enforcement of this Guaranty or in any
way arising out of, or consequential to, the protection, assertion, or
enforcement of the Guarantied Obligations (or any security therefor),
irrespective of whether suit is brought.
13. Notices. All notices and other communications hereunder to Agent shall
be in writing and shall be mailed, sent or delivered in accordance with the Loan
Agreement. All notices and other communications hereunder to a Guarantor shall
be in writing and shall be mailed, sent or delivered in care of Borrower in
accordance with the Loan Agreement.
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14. Cumulative Remedies. No remedy under this Guaranty, under the Loan
Agreement, or any other Loan Document is intended to be exclusive of any other
remedy, but each and every remedy shall be cumulative and in addition to any and
every other remedy given under this Guaranty, under the Loan Agreement, or any
other Loan Document, and those provided by law. No delay or omission by the
Lender Group or Agent on behalf thereof to exercise any right under this
Guaranty shall impair any such right nor be construed to be a waiver thereof. No
failure on the part of the Lender Group or Agent on behalf thereof to exercise,
and no delay in exercising, any right under this Guaranty shall operate as a
waiver thereof; nor shall any single or partial exercise of any right under this
Guaranty preclude any other or further exercise thereof or the exercise of any
other right.
15. Severability of Provisions. Any provision of this Guaranty that is
prohibited or unenforceable under applicable law shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
16. Entire Agreement; Amendments. This Guaranty constitutes the entire
agreement between each Guarantor and the Lender Group, or Agent on behalf
thereof pertaining to the subject matter contained herein. This Guaranty may not
be altered, amended, or modified, nor may any provision hereof be waived or
noncompliance therewith consented to, except by means of a writing executed by
each Guarantor and Agent on behalf of the Lender Group. Any such alteration,
amendment, modification, waiver, or consent shall be effective only to the
extent specified therein and for the specific purpose for which given. No course
of dealing and no delay or waiver of any right or default under this Guaranty
shall be deemed a waiver of any other, similar or dissimilar, right or default
or otherwise prejudice the rights and remedies hereunder.
17. Successors and Assigns. This Guaranty shall be binding upon each
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of each member of the Lender Group; provided, however, no
Guarantor shall assign this Guaranty or delegate any of its duties hereunder
without Agent's prior written consent and any assignment by a Guarantor without
Agent's consent shall be absolutely void. In the event of any assignment or
other transfer of rights by any member of the Lender Group the rights and
benefits herein conferred upon each member of the Lender Group shall
automatically extend to and be vested in such assignee or other transferee.
18. No Third Party Beneficiary. This Guaranty is solely for the benefit of
each member of the Lender Group and each of their successors and assigns and may
not be relied on by any other Person.
19. Counterparts; Telefacsimile Execution. This Guaranty may be executed
in any number of counterparts and by different parties on separate counterparts,
each of which, when executed and delivered, shall be deemed to be an original,
and all of which, when taken together, shall constitute but one and the same
Guaranty. Delivery of an executed counterpart of this Guaranty by telefacsimile
shall be equally as effective as delivery of an original executed counterpart of
this Guaranty. Any party delivering an executed counterpart of this Guaranty by
telefacsimile also shall deliver an original executed counterpart of this
Guaranty but the failure to
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deliver an original executed counterpart shall not affect the validity,
enforceability, and binding effect of this Guaranty.
20. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
THE VALIDITY OF THIS GUARANTY, ITS CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS
ARISING HEREUNDER OR RELATED HERETO SHALL BE 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 AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND
LITIGATED ONLY IN THE CALIFORNIA STATE COURTS AND FEDERAL COURTS LOCATED IN THE
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA; PROVIDED, HOWEVER, THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING
SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH
GUARANTOR AND THE LENDER GROUP WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW, ANY RIGHT SUCH PARTY MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON
CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN
ACCORDANCE WITH THIS SECTION 20.
EACH GUARANTOR AND AGENT ON BEHALF OF THE LENDER GROUP HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW OR STATUTORY CLAIMS. EACH GUARANTOR AND AGENT ON BEHALF OF THE
LENDER GROUP REPRESENT THAT EACH SUCH PARTY HAS REVIEWED THIS WAIVER AND EACH
such party KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS
GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
21. Agreement to be Bound. (a) Each Guarantor hereby makes to the Lender
Group each of the representations and warranties set forth in the Loan Agreement
applicable to such Guarantor fully as though such Guarantor were a party
thereto, and such representations and warranties are incorporated herein by this
reference, mutatis mutandis; and (b) each Guarantor that is a Subsidiary of
Borrower agrees and covenants for the benefit of the Lender Group (i) to do each
of the things set forth in the Loan Agreement
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that Borrower agrees and covenants to cause its Subsidiaries to do, and (ii) to
not do each of the things set forth in the Loan Agreement that Borrower agrees
and covenants to cause its Subsidiaries not to do, in each case, fully as though
such Guarantor was a party thereto, and such agreements and covenants are
incorporated herein by this reference, mutatis mutandis.
22. Termination. Upon the indefeasible final payment in full of the
Guarantied Obligations, including the cash collateralization, expiration, or
cancellation of all Guarantied Obligations, if any, consisting of letters of
credit, and the full and final termination of any commitment to extend any
financial accommodations under the Loan Agreement, this Guaranty shall
terminate, and Agent shall execute and deliver such documents and instruments
and take such further action reasonably requested by Guarantors, at Guarantors'
expense, as shall be necessary to evidence the termination hereof.
[Signature page follows]
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IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Guaranty as of the date first written above.
RIVER HOLDING CORP.,
a Delaware corporation
By:
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Name :
--------------------------------
Title:
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IH HOLDINGS LLC,
a Delaware limited liability company
By:
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Name :
--------------------------------
Title:
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XXXXX FARGO FOOTHILL, INC.,
a California corporation,
as Agent
By:
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Name :
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Title:
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[Signature Page to Guaranty]
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