LIMITED GUARANTY
Exhibit
10.9
Loan
No.: 00-000000-0
This
LIMITED GUARANTY is made by and between FIRST
REPUBLIC BANK, a
Nevada
corporation (the "Lender"), and the "Guarantor".
1. Guaranty
of Payment and Performance. For
valuable consideration and to induce Lender to grant credit or other financial
accommodations to CRESA
Partners of Orange County, LP, a Delaware limited partnership
(the
"Borrower"), Guarantor, as primary obligor and not merely as surety, absolutely
and unconditionally guarantees and promises to pay Lender or order, on demand,
in lawful money of the United States, subject to the limitation in section
3
below, any and all indebtedness (as hereinafter defined) of Borrower to Lender
under any existing or future agreement with Lender, and also absolutely and
unconditionally guarantees the due performance by Borrower of all its
obligations under all existing and future agreements with Lender.
2. Indebtedness.
The
word
"indebtedness" is used herein in its most comprehensive sense and includes
any
and all loans, advances, debts, lease obligations, and other obligations and
liabilities of Borrower, heretofore, now, or hereafter made, incurred or
created, whether voluntary or involuntary and however arising, whether due
or
not due, absolute or contingent, liquidated or nonliquidated, determined or
undetermined, whether Borrower may be liable individually or jointly with
others, or whether recovery upon such indebtedness may be or hereafter become
barred or otherwise unenforceable.
3. Maximum
Principal Liability. The
liability of Guarantor under this Guaranty shall not exceed at any time an
amount equal to the sum of (a) _______%
of
the
then outstanding indebtedness of Borrower to Lender (the "Guaranty Liability
Amount"), (b) all interest on the Guaranty Liability Amount of the indebtedness
which may accrue from the date of any demand for payment made upon Guarantor,
(c) all attorneys' fees and all other costs and expenses incurred by Lender
in
the enforcement or collection of Borrower's indebtedness, and (d) Guarantor's
obligations to pay attorneys' fees and all other costs and expenses which may
be
incurred by Lender in the protection, preservation or enforcement of any rights
of Lender under this Guaranty.
4. Continuing
Guaranty. This
Guaranty is, as to each Guarantor, a continuing guaranty, which shall remain
effective without reaffirmation until it has been terminated in a writing sent
by certified mail to Lender at the address set forth below. Such termination
shall be applicable only to transactions committed to or having their inception
after the effective date of termination and upon actual receipt of written
notice by Lender and shall not affect rights and obligations arising out of
transactions committed to or having their inception prior to such date.
Termination by any Guarantor shall not affect the continuing liability hereunder
of any Guarantor who does not give notice of termination. This Guaranty shall
not be impaired by any modification, supplement, extension or amendment of
any
contract or agreement to which the parties thereto may hereafter agree, or
by
any modification, release or other alteration of any of the indebtedness hereby
guaranteed or of any security therefore, including without limitation, pursuant
to a bankruptcy or reorganization proceeding in connection with Borrower, or
by
any agreement or arrangements whatsoever with Borrower or anyone else. Guarantor
acknowledges and agrees that the indebtedness of Borrower may be a revolving
credit and/or that the amount of the indebtedness may at any one time be zero
dollars, which shall not constitute a termination of this Guaranty.
5. Joint
and Several Obligations. The
obligations hereunder are joint and several as to each and every Guarantor,
and
are independent of Borrower's obligations. A separate action or actions may
be
brought against Guarantor, or any one of them, whether action is brought against
Borrower or whether Borrower is joined in any such action or actions. Each
Guarantor agrees that any releases which may be given by Lender to any one
or
more of the Guarantor shall not release him, her or it from this
Guaranty.
6. Authorization.
Guarantor
authorizes Lender, without notice or demand and without affecting its liability
hereunder, from time to time to (a) renew, compromise, extend, accelerate or
otherwise change the time for payment of, or otherwise change the terms of
the
indebtedness or any part thereof, including any increase or decrease in the
rate
of interest thereon; (b) take and hold security for the payment of this Guaranty
or the indebtedness guaranteed, and exchange, enforce, waive and release any
such security; (c) apply such security and direct the order or manner of sale
thereof as Lender in its sole discretion may determine; (d) accept or discharge
(in whole or in part) additional guarantors; and (e) assign, without notice,
this Guaranty in whole or in part and/or Lender's rights hereunder to anyone
at
any time.
-81-
7. Waivers.
Guarantor
waives all rights and defenses Guarantor may have because Borrower's debt is
secured by real property, including, without limitation, all rights and defenses
under Sections 580a, 580b, 725a and 726 of the California Code of Civil
Procedure. Guarantor waives all rights and defenses arising from Lender's
election of remedies, even though that election, such as nonjudicial foreclosure
with respect to security for a guaranteed obligation, has destroyed Guarantor's
rights of subrogation and reimbursement against Borrower by the operation of
Section 580d of the Code of Civil Procedure or other similar law. Guarantor
waives any right to require Lender to (a) proceed against Borrower; (b) proceed
against or exhaust any security held from any person or marshalling of assets
or
liens; (c) proceed against any other Guarantor; or (d) pursue any other remedy
available to Lender. Guarantor waives any defense arising by reason of any
disability or other defense of Borrower or by reason of the cessation from
any
cause whatsoever of the liability of Borrower. Guarantor waives all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, notices of default or demand, notices
of acceptance of and reliance on this Guaranty and of the existence, creation,
or incurring of new or additional indebtedness, notices of renewal, extension
or
modification of the indebtedness, notice of any and all favorable and
unfavorable information, whether financial or other, about Borrower, heretofore,
now, or hereafter learned or acquired by Lender and all other notices to which
Guarantor or any of them might otherwise be entitled, and the right to a jury
trial in any action hereunder or arising out of Lender's transactions with
Borrower. Guarantor hereby waives any and all suretyship defenses now or
hereafter available to it under the California Civil Code or the Commercial
Code, including, without limitation, (i) California Civil Code Sections 2799,
2808, 2809, 2810, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2845, 2846, 2847,
2848, 2849, 2850, 2899 and 3433; (ii) Chapter 2 of Title 14 of the California
Civil Code; or (iii) California Commercial Code Section 3605. Guarantor waives
the benefit of any statute of limitations affecting its liability hereunder
or
the enforcement hereof. Guarantor acknowledges that the waivers provided herein
are made with Guarantor's full knowledge of the significance and consequence
of
such waivers, and that Lender is relying on such waivers.
8. Subrogation;
Subordination. So
long
as any indebtedness of Borrower to Lender remains outstanding, Guarantor waives
and agrees not to assert any right of subrogation, indemnity or contribution,
all right to enforce any remedy Lender may have against Borrower or any other
person, and any right to participate in security now or hereafter held by
Lender, including, without limitation, any such right set forth in California
Civil
Code
Sections 1845, 2848 or 2849. Any and all present and future debts and
obligations of Borrower to each Guarantor are hereby postponed in favor of
and
subordinated to the full payment and performance of all indebtedness of Borrower
to Lender. Any amounts received on such indebtedness or obligations owed to
Guarantor shall be held by Guarantor as trustee and paid over to Lender without
affecting Guarantor's liability under this Guaranty.
9. Financial
Condition. Guarantor
assumes the responsibility to keep informed of the financial status of Borrower
and of any circumstance which may affect Guarantor's obligations or Borrower's,
and Guarantor recognizes and agrees that Lender is not obligated to keep
Guarantor informed of any such circumstances. Where Borrower is a corporation,
partnership or limited liability company it is not necessary for Lender to
inquire into the powers of Borrower of the officers, directors, partners,
manager 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.
Guarantor agrees that by executing this Guaranty it assumes all risks of
bankruptcy or reorganization cases or proceedings in connection with
Borrower.
10. Collateral.
Guarantor's
performance of any and all obligations of Guarantor to Lender no matter how
or
when arising, whether absolute or contingent, whether due or to become due,
and
whether under this Guaranty or otherwise are secured by (a) Not Applicable,
and
(b) all monies or deposits of any Guarantor at any
time
in Lender's possession. Lender
shall have the right to enforce such security interests and the right to offset
against such security without notice or demand.
-82-
11. Claims
in Bankruptcy. Guarantor
shall file all claims against Borrower in any bankruptcy, reorganization or
liquidation proceeding and shall assign to Lender such claims and all of its
rights related thereto. If Guarantor fails to do so at Lender's request, Lender
is authorized, and is hereby irrevocably granted Borrower's power of attorney,
to file claims on Guarantor's behalf and to file an assignment of such claims
with the bankruptcy court or liquidating entity. Guarantor hereby assigns to
Lender all of Guarantor's rights to any payments on any such
claims.
12. Revival.
If
Lender
is required to reimburse to Borrower or any person any amount previously
paid
or
recovered
on account of the indebtedness as a preference, fraudulent transfer or because
of any bankruptcy proceeding or similar proceeding, Guarantor's obligations
shall be reinstated and revived.
13. Waiver
of Jury Trial. GUARANTOR
IRREVOCABLY WAIVES ALL RIGHTS TO A JURY TRIAL IN ANY ACTION, SUIT, OR PROCEEDING
OF ANY KIND DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN ANY WAY RELATING TO
THE
INDEBTEDNESS OR THIS GUARANTY, ANY OR ALL OF THE REAL AND PERSONAL PROPERTY
COLLATERAL SECURING THE INDEBTEDNESS OR THIS GUARANTY, OR ANY OF THE
TRANSACTIONS WHICH ARE CONTEMPLATED BY THE FINANCING DOCUMENTS OR THIS GUARANTY.
THIS WAIVER IS INTENDED TO APPLY, TO THE FULLEST EXTENT PERMITTED BY XXX, TO
ANY
AND ALL DISPUTES AND CONTROVERSIES THAT ARISE OUT OF OR IN ANY WAY RELATE TO
ANY
OR ALL OF THE MATTERS DESCRIBED IN THE PRECEDING SENTENCE, INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS OF ANY KIND. THIS GUARANTY MAY BE FILED WITH ANY COURT OF COMPETENT
JURISDICTION AS GUARANTOR'S WRITTEN CONSENT TO WAIVER OF A JURY
TRIAL.
14. Miscellaneous.
(a) Guarantor
agrees to pay attorneys' fees and all other costs and expenses which may be
incurred by Lender in the enforcement or interpretation of Lender's rights
under
this Guaranty in any state, federal or bankruptcy proceeding.
(b) Any
married person who signs this Guaranty hereby expressly agrees that recourse
may
be had against his/her separate property for all his/her obligations under
this
Guaranty.
(c) This
Guaranty contains the entire guaranty agreement between Guarantor and Lender,
and supercedes all prior agreements and negotiations whether oral or written
pertaining to the subject matter of this Guaranty. No modification or amendment
of this Guaranty shall be effective unless it is in writing and executed by
Guarantor and Lender.
(d) The
death
of any Guarantor shall not terminate this Guaranty as to such deceased or as
to
any other Guarantor. This Guaranty shall be binding upon the heirs, executors,
administrators, successors and assigns of each Guarantor and shall inure to
the
benefit of Lender's successors and assigns. Guarantor may not assign its rights
or obligations hereunder.
(e) In
all
cases where there is more than one Borrower named herein, or when this Guaranty
is executed by more than one Guarantor, the "Borrower" and the word "Guarantor,"
respectively, shall mean all and any one or more of them.
-83-
(f) All
acts
and
transactions hereunder and the rights and obligations of the parties hereto
shall be governed construed and interpreted in accordance with the laws of
the
State of California.
(g) All
notices to be provided under this Guaranty must be in writing and delivered
to
the addresses provided below.
(h) All
rights and powers of Lender under this Guaranty and under any other agreement
between Guarantor and Lender shall be cumulative and in addition to all right,
power and remedies given to Lender at law.
(i) Headings
in this Guaranty are for convenience of reference and shall not be used to
interpret or define the provisions of this Guaranty.
(j) Each
Guarantor declares that he, she or it understands the contents of this Guaranty
and has had an opportunity to consult with an attorney regarding the form and
content of this Guaranty.
IN
WITNESS WHEREOF, the
undersigned Guarantor has executed this Guaranty this 8th
day of
June,
2006.
|
Lender’s
Address:
|
|||
|
First
Republic Bank
|
|||
|
000
Xxxx Xxxxxx
|
|||
|
Xxx
Xxxxxxxxx, XX 00000
|
|||
|
Attn:
Commercial Loan Operations
|
|||
|
By:
|
Guarantor
|
||
-84-
