1
EXHIBIT 0.xx
LIMITED GUARANTY
CITY NATIONAL
BANK
LOAN NO. 32692
CUSTOMER NO. 637864
For valuable consideration, the undersigned, XXXXX X. XXXXXXX ("Guarantor"),
unconditionally guarantees and promises to pay CITY NATIONAL BANK, a national
banking association ("CNB"), or order, on demand, in lawful money of the United
States, any and all Indebtedness of CARDIODYNAMICS INTERNATIONAL CORPORATION, A
CALIFORNIA CORPORATION ("Borrower") to CNB under that certain Promissory Note
dated February 25, 1999, executed by Xxxxxxxx in favor of CNB, in the original
principal amount of TWO MILLION AND NO/100 Dollars ($2,000,000.00), and any and
all renewals and extensions thereof ("Note"). The word "Indebtedness" as used
herein means all obligations and liabilities of Borrower to CNB under the Note
(whether recovery upon the Note may be or become barred by any statute of
limitations or otherwise unenforceable), including the principal amount thereof,
all interest thereon and all costs and expenses incurred in enforcing or
collecting this Guaranty, the Indebtedness or any security for the Indebtedness
or this Guaranty.
CNB may permit the total of all of Borrower's obligations to CNB to exceed
Guarantor's liability hereunder. The amount of Guarantor's liability hereunder
and under any other agreement now or at any time hereafter in force between
Guarantor and CNB, including any other guaranty executed by Guarantor relating
to any obligations of Borrower to CNB, shall be cumulative and not alternative.
Any payment by Guarantor shall not reduce Guarantor's maximum obligation
hereunder, unless written notice to that effect has been actually received by
CNB at or prior to the time of such payment.
The obligations hereunder are independent of the obligations of Xxxxxxxx, and a
separate action or actions may be brought and prosecuted against Guarantor
whether action is brought against Borrower or whether Borrower is joined in any
such action or actions; and Guarantor waives the benefit of any statute of
limitations affecting Guarantor's liability hereunder or the enforcement
thereof.
Guarantor authorizes CNB, without notice or demand and without affecting
Guarantor's liability hereunder, from time to time, to (a) renew, compromise,
extend, accelerate or otherwise change any of the terms of the Indebtedness or
any part thereof, including changing the rate of interest thereon or the time
for payment thereof (but not including any change which would increase the
principal amount of the Note); (b) take and hold security for the payment of
this Guaranty or the Indebtedness, and exchange, enforce, waive and release any
such security; (c) apply such security and direct the order or manner of sale or
other disposition thereof as CNB in its discretion may determine; (d) apply
payments received from Borrower or Guarantor, or any of them, to the
Indebtedness in such order as CNB may determine in its sole discretion; and (e)
release or substitute any Person liable on the Indebtedness, any other guarantor
of the Indebtedness, or any other Person providing support for the Indebtedness
to CNB, this Guaranty, or any other guaranty. As used in this Guaranty, "Person"
means any individual or entity.
Guarantor waives any right to require CNB to (a) proceed against Borrower,
Guarantor or any other guarantor; (b) proceed against or exhaust any security or
other support for the Indebtedness granted by Xxxxxxxx, Guarantor, or any other
guarantor or Person; or (c) pursue any other remedy in CNB's power whatsoever.
Guarantor waives any defense arising by reason of (i) any disability or other
defense of Borrower; (ii) the cessation from any cause whatsoever of the
liability of Borrower for the Indebtedness for any reason other than payment in
full and final satisfaction; or (iii) the non-perfection of any security or
support for the Indebtedness. Until all indebtedness has been paid to CNB,
Guarantor shall have no right of subrogation to and waives any right to enforce
any remedy
EXHIBIT 7CC-1
2
which CNB now has or may hereafter have against Xxxxxxxx, and waives any benefit
of, any right to participate in, and any right to direct the application of any
security for the Indebtedness, this Guaranty or any other guaranty of the
Indebtedness now or hereafter held by CNB, whether any of the foregoing rights
arise in equity, at law or by contract. Without limiting the generality of the
foregoing, Guarantor waives all rights and defenses arising out of an election
of remedies by the creditor, even though that election of remedies, such as
non-judicial foreclosure with respect to security for a guaranteed obligation,
has destroyed guarantor's rights of subrogation and reimbursement against the
principal by the operation of Section 580d of the California Code of Civil
Procedure or otherwise. For purposes of the waiver just given, the "creditor"
referred to therein is CNB and the "principal" is the Borrower. Guarantor waives
all presentments, demands for performance, notices of nonperformance, or other
defaults, 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 of Borrower to CNB. Guarantor assumes the
responsibility for being and keeping itself informed of the financial condition
of Borrower and of all other circumstances bearing upon the risk of nonpayment
of the Note or other indebtedness of Borrower to CNB which diligent inquiry
would reveal, and agrees that CNB shall have no duty to advise Guarantor of
information known to CNB regarding such condition or circumstances.
Without limiting any waiver of rights of subrogation contained herein, any
indebtedness of Borrower now or hereafter held by Guarantor is hereby
subordinated to the Indebtedness; and such indebtedness of Borrower to
Guarantor, if CNB so requests, shall be collected, enforced and received by
Guarantor as trustee for CNB and be paid over to CNB on account of the
Indebtedness but without reducing or affecting in any manner the liability of
Guarantor under the other provisions of this Guaranty. CNB shall have rights of
setoff against, and bankers' liens upon all monies, securities and other
properties of Guarantor to the extent provided by law.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of the Indebtedness by Borrower or any other
guarantor is avoided as a preference, or on any other grounds provided by law,
or must otherwise be returned by CNB as a result of an order for relief being
entered with respect to Borrower or any other guarantor under the United States
Bankruptcy Code, or as a result of Borrower's or any other guarantor's
assignment for the benefit of creditors.
Where Borrower is a corporation or partnership, it is not necessary for CNB to
inquire into the powers of Borrower or the officers, directors, 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.
Guarantor has entered into this Guaranty with the understanding that CNB may
rely upon it to the exclusion of any other guaranties. CNB has not, nor has
Borrower represented that there are or may be other guarantors. Nothing in this
Guaranty, however, shall bind CNB to seek other guarantors, separate and apart
from the undersigned. Guarantor understands that CNB may already have, or
concurrently herewith may have obtained or hereafter may obtain other guarantors
(one or more, several or joint) of the Indebtedness. Such guarantors,
heretofore, herewith, or hereafter obtained, shall in no way affect Guarantor's
complete liability hereunder for the full amount of the Indebtedness. Nothing
herein shall require CNB to sue all of the guarantors severally or together or
to sue more than one or to prorate the above liability among the guarantors or
any of them. Guarantor agrees that CNB may, in its sole and uncontrolled
discretion, sue any one or more of the guarantors for all of the Indebtedness;
and within its sole and uncontrolled discretion CNB may take judgment against
any one of the guarantors for all of the Indebtedness, plus interest, costs and
attorneys' fees, or within its sole discretion CNB may prorate such judgment
between or among one or more of the guarantors.
Guarantor agrees to pay reasonable attorneys' fees and all other costs and
expenses which may be incurred by CNB (or allocable to CNB's in-house counsel)
in the enforcement of this Guaranty, or the collection of any Indebtedness,
irrespective of whether suit is filed.
When there is more than one Borrower named herein, or when this Guaranty is
executed by more than one Guarantor, the word "Borrower" and the word
"Guarantor" respectively shall mean all and any one or more of them and each
promise and obligation set forth herein shall be joint and several.
This Guaranty shall benefit CNB, its successors and assigns, and shall bind
Guarantor's successors and assigns. This Guaranty is assignable by CNB with
respect to all or any portion of the Indebtedness and obligations
EXHIBIT 7CC-2
3
guaranteed hereunder, and when so assigned Xxxxxxxxx shall be liable to the
assignees under this Guaranty without in any manner affecting Guarantor's
liability hereunder with respect to any Indebtedness or obligations retained by
CNB.
If any term, provision, covenant or condition of this Guaranty is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the provisions shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
This Guaranty shall be governed by and construed in accordance with the laws of
the State of California and venue and jurisdiction with respect hereto shall be
with any court of competent jurisdiction located in the county in the State of
California where the Indebtedness is payable.
Any notice to CNB required hereunder shall not be effective against CNB unless
it is given in writing and actually received by CNB to the attention of
"Manager" at the address where the Note is payable, with a copy to: City
National Bank, 000 Xxxxx Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000,
Attention: General Counsel.
This Guaranty is intended by Guarantor and CNB as the final expression of
Guarantor's obligations and liabilities to CNB described herein and is intended
as a complete statement of their agreement concerning the subject matter hereof.
This Guaranty may be amended only by a writing signed by Xxxxxxxxx and agreed to
by CNB.
This Guaranty is secured by three (3) Deeds of Trust given by Xxxxx X. Xxxxxxx,
Trustee of the Xxxxx X. Xxxxxxx Living Trust dated December 23, 1986, as
amended, to Chicago Title Insurance Company as Trustee on property located 00000
Xxx Xxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxx of Riverside, State of California and
31257 Via Xxxxx Xxxxx, Xxxxxx and 166.53 acres, and 91.83 acres on the north
side of Camino Del Rey south of Via Marposa Sur and west of Rancho Amigos Road,
Xxxxxx and 00000 Xxxxxxx Xxxx, Solana Beach and Lot 56, unimproved land lying
adjacent to this Property , County of San Diego, State of California.
The Deed of Trust securing this Guaranty contains the following provision:
SHOULD THE TRUSTOR OR HIS SUCCESSOR IN INTEREST WITHOUT THE PRIOR WRITTEN
CONSENT OF THE BENEFICIARY SELL, TRANSFER, MORTGAGE, PLEDGE, HYPOTHECATE, ASSIGN
OR ENCUMBER, HIS INTEREST IN THE PROPERTY (OR ANY PART THEREOF), WHETHER
VOLUNTARILY OR INVOLUNTARILY, THEN BENEFICIARY MAY AT ITS ELECTION DECLARE ALL
SUMS SECURED HEREBY IMMEDIATELY DUE AND PAYABLE. THIS PROVISION SHALL APPLY TO
EACH AND EVERY SALE, TRANSFER, MORTGAGE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR
ENCUMBRANCE REGARDLESS WHETHER OR NOT BENEFICIARY HAS CONSENTED TO, OR WAIVED,
ITS RIGHT HEREUNDER, WHETHER BY ACTION OR NON-ACTION, IN CONNECTION WITH ANY
PREVIOUS SALE,TRANSFER, MORTGAGE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR
ENCUMBRANCE, WHETHER ONE OR MORE.
This Limited Guaranty is executed by Guarantor this 26th day of April, 1999.
"Guarantor"
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
###-##-####
-------------------------------------
(S.S. or Tax I.D. No.)
Address: P.O. Box 9660
Rancho Santa Fe, CA 92067
EXHIBIT 7CC-3
4
---------------
BANK USE ONLY
---------------
---------------
DO NOT DESTROY: WHEN PAID, THIS GUARANTY WITH DEED OF TRUST SECURING SAME, MUST
BE SURRENDERED TO TRUSTEE FOR CANCELLATION BEFORE RECONVEYANCE CAN BE MADE.
EXHIBIT 7CC-4
