LIMITED GUARANTY
Exhibit
10.5
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 ASDS
of Orange County, Inc., a Delaware corporation (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.
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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.
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.
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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 LAW, 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.
(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.
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(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.
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Lender’s
Address:
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First
Republic Bank
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000
Xxxx Xxxxxx
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Xxx
Xxxxxxxxx, XX 00000
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Attn:
Commercial Loan Operations
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By:
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Guarantor
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