CONTINUING GUARANTY
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TO:
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XXXXX
FARGO BANK, NATIONAL ASSOCIATION
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1. GUARANTY;
DEFINITIONS. In consideration of any credit or other financial
accommodation heretofore, now or hereafter extended or made to any of the direct
or indirect subsidiaries of _____________________, whether
now existing or hereafter formed (including without limitation ________________________), or
any of their successors or assigns (each, an “Obligor” and together, “Obligors”)
by XXXXX FARGO BANK, NATIONAL ASSOCIATION (together with all its participants,
successors and assigns, “WFBC”), and for other valuable consideration, the
undersigned _________________, a _________ corporation
(“Guarantor”), jointly and severally unconditionally guarantees and promises to
pay to WFBC, or order, on demand in lawful money of the United States of America
and in immediately available funds, any and all Obligations. The term
“Obligations” is used in its most comprehensive sense and means any and all
debts, obligations and liabilities of each Obligor to WFBC, whether incurred in
the past, present or future, whether voluntary or involuntary, and however
arising, and whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, whether or not such Obligor may be
liable individually or jointly or jointly and severally with others, or whether
recovery upon such Obligations may subsequently become
unenforceable. This Guaranty is a guaranty of payment and not
collection.
2. SUCCESSIVE TRANSACTIONS;
REVOCATION; OBLIGATION UNDER OTHER GUARANTIES. This is a
continuing guaranty and all rights, powers and remedies hereunder shall apply to
all past, present and future Obligations, including those arising under
successive transactions which shall either continue the Obligations, increase or
decrease them, or from time to time create new Obligations after all or any
prior Obligations have been satisfied, and notwithstanding the death,
incapacity, dissolution, liquidation or bankruptcy of any Obligor or Guarantor
or any other event or proceeding affecting any Obligor or
Guarantor. This Guaranty shall not apply to any new Obligations
created after actual receipt by WFBC of written notice of Guarantor’s revocation
as to such new Obligations; provided, however, that any financial accommodations
made by WFBC to any Obligor after revocation under commitments existing prior to
receipt by WFBC of such revocation, and extensions, renewals or modifications,
of any kind, of Obligations incurred by any Obligor or committed by WFBC prior
to receipt by WFBC of such notice of revocation, shall not be considered new
Obligations. Any such notice must be sent to WFBC by registered U.S.
mail, postage prepaid, addressed to its office at Xxxxx Fargo Bank, National
Association; MAC C7300-060; 0000 Xxxxxxxx, 0xx Xxxxx; Xxxxxx,
Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxx, or at such
other address as WFBC shall from time to time designate. Any payment
made by Guarantor under this Guaranty shall be effective to reduce or discharge
Guarantor’s maximum obligation hereunder only if accompanied by a written notice
to that effect, received by WFBC, advising WFBC that such payment is made under
this Guaranty for such purpose. The obligations of Guarantor under
this Guaranty shall be in addition to any obligations of Guarantor under any
other guaranties of any liabilities or obligations of any Obligor or other
Persons that may be given to WFBC at any time, unless the other guaranties are
expressly modified or revoked in writing; and this Guaranty shall not, unless
expressly provided for in this Guaranty, affect or invalidate any such other
guaranties. As used herein, “Person” means any individual,
corporation, partnership, joint venture, limited liability company, association,
joint stock company, trust, unincorporated organization or government or any
agency or political subdivision of a governmental entity.
3. OBLIGATIONS JOINT AND
SEVERAL; SEPARATE ACTIONS; WAIVER OF STATUTE OF LIMITATIONS; REINSTATEMENT OF
LIABILITY. The obligations of Guarantor under this Guaranty
are joint and several and independent of the obligations of Obligors, and a
separate action or actions may be brought and prosecuted against Guarantor,
whether the action is brought against any Obligor or other Persons, or whether
any Obligor or other Persons are joined in any such action or
actions. Guarantor acknowledges that this Guaranty is absolute and
unconditional, that there are no conditions precedent to the effectiveness of
this Guaranty, and that this Guaranty is in full force and effect and binding on
Guarantor as of the date written below, regardless of whether WFBC obtains
collateral or any guaranties from others or takes any other action contemplated
by Guarantor. Guarantor waives the benefit of any statute of
limitations affecting the enforcement of Guarantor’s liability under this
Guaranty, and Guarantor agrees that any payment of any Obligations or other act
which shall toll any applicable statute of limitations shall similarly toll the
statute of limitations applicable to Guarantor’s liability under this
Guaranty. The liability of Guarantor hereunder shall be reinstated
and revived and the rights of WFBC shall continue if and to the extent for any
reason any amount at any time paid on account of any Obligations guaranteed
hereby is rescinded or must otherwise be restored by WFBC, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, all as though
such amount had not been paid. The determination as to whether any
amount so paid must be rescinded or restored shall be made by WFBC in its sole
discretion; provided, however, that if WFBC chooses to contest any such matter
at the request of Guarantor, Guarantor agrees to indemnify and hold WFBC
harmless from and against all costs and expenses, including reasonable
attorneys’ fees of outside counsel, expended or incurred by WFBC in connection
therewith, including without limitation, in any litigation with respect
thereto.
4. AUTHORIZATIONS TO
WFBC. Guarantor authorizes WFBC either before or after
revocation hereof, without notice to or demand on Guarantor, and without
affecting Guarantor’s liability hereunder, from time to time to: (a) alter,
compromise, renew, extend, accelerate or otherwise change the time for payment
of, or otherwise change the terms of the Obligations or any portion thereof,
including increase or decrease of the rate of interest thereon; (b) take and
hold security for the payment of this Guaranty or the Obligations or any portion
thereof, and exchange, enforce, waive, subordinate or release any such security;
(c) apply such security and direct the order or manner of sale thereof,
including without limitation, a non-judicial sale permitted by the terms of the
controlling security agreement, mortgage or deed of trust, as WFBC in its
discretion may determine; (d) release or substitute any one or more of the
endorsers or any other guarantors of the Obligations, or any portion thereof, or
any other party thereto; and (e) apply payments received by WFBC from any
Obligor to any portion of the Obligations, in such order as WFBC shall determine
in its sole discretion, whether or not such Obligations are covered by this
Guaranty, and Guarantor hereby waives any provision of law regarding application
of payments which specifies otherwise. WFBC may without notice assign
this Guaranty in whole or in part. Upon WFBC’s request, Xxxxxxxxx
agrees to provide to WFBC copies of Guarantor’s financial
statements.
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5. REPRESENTATIONS, WARRANTIES
AND COVENANTS. Guarantor represents, warrants and covenants to
WFBC that: (a) this Guaranty is executed at each Obligor’s request; (b)
Guarantor shall not, without WFBC’s prior written consent, sell, lease, assign,
encumber, hypothecate, transfer or otherwise dispose of all or a substantial or
material part of Guarantor’s assets other than in the ordinary course of
Guarantor’s business; (c) WFBC has made no representation to Guarantor as to the
creditworthiness of any Obligor; and (d) Guarantor has established adequate
means of obtaining from each Obligor on a continuing basis financial and other
information pertaining to such Obligor’s financial
condition. Guarantor agrees to keep adequately informed of any facts,
events or circumstances which might in any way affect Guarantor’s liability
under this Guaranty, and Guarantor further agrees that WFBC shall have no
obligation to disclose to Guarantor any information or material about any
Obligor which is acquired by WFBC in any manner.
6. GUARANTOR’S
WAIVERS.
(a) Guarantor
waives any right to require WFBC to:
(i) proceed against any Obligor or any other Person; (ii) marshal
assets or proceed against or exhaust any security granted by any Obligor or any
other Person; (iii) give notice of the terms, time and place of any public
or private sale or other disposition of personal property security granted by
any Obligor or any other Person; (iv) take any other action or pursue any other
remedy in WFBC’s power; or (v) make any presentment or demand for
performance, or give any notice of nonperformance, protest, notice of protest or
notice of dishonor hereunder or in connection with any obligations or evidences
of indebtedness held by WFBC as
security for or which constitute in whole or in part the Obligations guaranteed
hereunder, or in connection with the creation of new or additional
Obligations.
(b)
Guarantor waives any defense to
its obligations hereunder based upon or arising by reason of: (i) any disability
or other defense of any Obligor or any other Person; (ii) the cessation or
limitation from any cause whatsoever, other than payment in full, of the
Obligations or the indebtedness of any other Person; (iii) any lack of authority
of any officer, director, partner, agent or any other Person acting or
purporting to act on behalf of any Obligor, if it is a corporation, partnership
or other type of entity, or any defect in the formation of any Obligor;
(iv) the application by any Obligor of the proceeds of any Obligations for
purposes other than the purposes represented by such Obligor to, or intended or
understood by, WFBC or
Guarantor; (v) any act or omission by WFBC which
directly or indirectly results in or aids the discharge of any Obligor or any
portion of the Obligations by operation of law or otherwise, or which in any way
impairs or suspends any rights or remedies of WFBC against
any Obligor; (vi) any impairment of the value of any interest in any security
for the Obligations or any portion thereof, including without limitation, the
failure to obtain or maintain perfection or recordation of any interest in any
such security, the release of any such security without substitution, or the
failure to preserve the value of, or to comply with applicable law in disposing
of, any such security; (vii) any modification of the Obligations, in any
form whatsoever, including any modification made after revocation hereof to any
Obligations incurred prior to such revocation, and including without limitation
the renewal, extension, acceleration or other change in time for payment of, or
other change in the terms of, the Obligations or any portion thereof; or (viii)
any requirement that WFBC give
any notice of acceptance of this Guaranty. Until all Obligations have
been paid in full, Guarantor shall have no right of subrogation, and Guarantor
waives any right to enforce any remedy which WFBC now
has or may hereafter have against any Obligor or any other Person, and waives
any benefit of, or any right to participate in, any security now or hereafter
held by WFBC. Guarantor further waives all rights and defenses
Guarantor may have arising out of (A) any election of remedies by WFBC,
even though that election of remedies, such as a non-judicial foreclosure with
respect to any security for any portion of the Obligations, destroys Guarantor’s
rights of subrogation or Guarantor’s rights to proceed against any Obligor for
reimbursement, or (B) any loss of rights Guarantor may suffer by reason of
any rights, powers or remedies of any Obligor in connection with any
anti-deficiency laws or any other laws limiting, qualifying or discharging the
Obligations, whether by operation of law or otherwise, including any rights
Guarantor may have to a fair market value hearing to determine the size of a
deficiency following any foreclosure sale or other disposition of any real
property security for any portion of the Obligations.
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7. WFBC’S RIGHTS WITH RESPECT
TO GUARANTOR’S PROPERTY IN WFBC’S POSSESSION. In addition to
all liens upon and rights of setoff against the monies, securities or other
property of Guarantor given to WFBC by law, WFBC shall have a lien upon and a
right of setoff against all monies, securities and other property of Guarantor
now or hereafter in the possession of or on deposit with WFBC, whether held in a
general or special account or deposit or for safekeeping or otherwise, and every
such lien and right of setoff may be exercised without demand upon or notice to
Guarantor. No lien or right of setoff shall be deemed to have been
waived by any act or conduct on the part of WFBC, or by any neglect to exercise
such right of setoff or to enforce such lien, or by any delay in so doing, and
every right of setoff and lien shall continue in full force and effect until
such right of setoff or lien is specifically waived or released by WFBC in
writing.
8. SUBORDINATION. Any
and all indebtedness of each Obligor now or hereafter held by Guarantor is
hereby subordinated to the Obligations. Such indebtedness of each
Obligor to Guarantor is assigned to WFBC as security for this Guaranty and the
Obligations and, if WFBC requests, shall be collected and received by Guarantor
as trustee for WFBC and paid over to WFBC on account of the Obligations but
without reducing or affecting in any manner the liability of Guarantor under the
other provisions of this Guaranty. Any notes or other instruments now
or hereafter evidencing such indebtedness of an Obligor to Guarantor shall be
marked with a legend that indicates that the notes or other instruments are
subject to this Guaranty and, if WFBC so requests, such notes and instruments
shall be delivered to WFBC. WFBC is hereby authorized in the name of Guarantor
from time to time to file financing statements and continuation statements and
execute such other documents and take such other action as WFBC deems necessary
or appropriate to perfect, preserve and enforce its rights
hereunder.
9. REMEDIES; NO
WAIVER. All rights, powers and remedies of WFBC hereunder are
cumulative. No delay, failure or discontinuance of WFBC in exercising
any right, power or remedy hereunder shall affect or operate as a waiver of such
right, power or remedy; nor shall any single or partial exercise of any such
right, power or remedy preclude, waive or otherwise affect any other or further
exercise thereof or the exercise of any other right, power or
remedy. Any waiver, permit, consent or approval of any kind by WFBC
of any breach of this Guaranty, or any such waiver of any provisions or
conditions hereof, must be in writing and shall be effective only to the extent
set forth in writing.
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10. COSTS, EXPENSES AND
ATTORNEYS’ FEES. Guarantor shall pay to WFBC immediately upon
demand the full amount of all payments, advances, charges, costs and expenses,
including reasonable attorneys’ fees of
outside counsel, expended or incurred by WFBC in connection with the enforcement
of any of WFBC’s rights, powers or remedies or the collection of any amounts
which become due to WFBC under this Guaranty, and the prosecution or defense of
any action in any way related to this Guaranty, whether incurred at the trial or
appellate level, in an arbitration proceeding or otherwise, and including any of
the foregoing incurred in connection with any bankruptcy proceeding (including
without limitation, any adversary proceeding, contested matter or motion brought
by WFBC or any other Person) relating to Guarantor or any other
Person. All of the foregoing shall be paid by Guarantor with interest
from the date of demand until paid in full at a rate per annum equal to the
greater of ten percent (10%) or WFBC’s Prime Rate in effect from time to
time.
11. SUCCESSORS;
ASSIGNMENT. This Guaranty shall be binding upon and inure to
the benefit of the heirs, executors, administrators, legal representatives,
successors and assigns of the parties; provided, however, that Guarantor may not
assign or transfer any of its interests or rights hereunder without WFBC’s prior
written consent. Guarantor acknowledges that WFBC has the right to
sell, assign, transfer, negotiate or grant participations in all or any part of,
or any interest in, the Obligations and any obligations with respect thereto,
including this Guaranty. In connection therewith, WFBC may disclose
all documents and information which WFBC now has or hereafter acquires relating
to Guarantor or this Guaranty, whether furnished by an Obligor, Guarantor or
otherwise; provided that, to the extent that such documents and information are
identified as confidential, WFBC shall inform each Person to whom such
disclosures are made of the confidential nature of such documents and
information and each such Person shall agree to treat such documents and
information as confidential in accordance with terms and conditions no less
protective than those applicable to WFBC. Xxxxxxxxx further agrees
that WFBC may disclose such documents and information to any
Obligor.
12. AMENDMENT. This
Guaranty may be amended or modified only in writing signed by WFBC and
Guarantor.
13. INTERPRETATION. When
this Guaranty is executed by more than one Guarantor, the word “Guarantor” shall
mean all or any one or more of them as the context requires. Unless
the context clearly requires otherwise, the word “or” has the inclusive meaning
represented by the phrase “and/or”.
14.
UNDERSTANDING WITH
RESPECT TO WAIVERS; SEVERABILITY OF PROVISIONS. Guarantor warrants and
agrees that each of the waivers set forth herein is made with Guarantor’s full
knowledge of its significance and consequences, and that under the
circumstances, the waivers are reasonable and not contrary to public policy or
law. If any waiver or other provision of this Guaranty shall be held to be
prohibited by or invalid under applicable public policy or law, such waiver or
other provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such waiver or other provision
or any remaining provisions of this Guaranty.
15. GOVERNING
LAW. This Guaranty shall be governed by and construed in
accordance with the laws of the State of Colorado.
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16. WAIVER OF
JURY TRIAL. GUARANTOR
IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF, BASED ON OR PERTAINING TO THIS
GUARANTY.
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IN WITNESS WHEREOF, the undersigned
Xxxxxxxxx has executed this Guaranty as of _____________, ______.
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[_______________________]
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By:
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Name:
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Its:
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Signature
Page to [____] Continuing Guaranty
