EXHIBIT 99.4
LIMITED RECOURSE DALLAS P. PRICE GUARANTY
This Limited Recourse Guaranty (this "Guaranty"), dated as of November
5, 2002, is made by DALLAS P. PRICE, an individual and THE DALLAS P. PRICE TRUST
dated May 14, 1998 (as amended) (collectively, the "Guarantor"), in favor of BNY
MIDWEST TRUST COMPANY, an Illinois corporation, not individually but as
collateral agent (the "Collateral Agent") for the purchasers of 9.35% Senior
Secured Notes due July 1, 2004 (the "Purchasers") of American Golf Corporation,
a California corporation (the "Company").
Recitals
A. The Company is indebted to the Purchasers (each a "Secured
Creditor") and collectively the "Secured Creditors") pursuant to a Note Purchase
Agreement dated as of July 30, 1996 (as amended, restated or modified from time
to time, the "Purchase Agreement") and any agreements, instruments, certificates
or other documents entered into in connection therewith (collectively with the
Purchase Agreement, the "Debt Documents").
B. The Company entered into a Restructuring Agreement and Limited
Waiver dated as of July 1, 2002, and certain agreements, instruments,
certificates and other documents in connection therewith (collectively, the
"Restructuring Agreement").
C. The Company has requested that the Purchasers further forbear in
the exercise of their remedies by entering into an Extension and Amendment
Agreement Relating to the Delivery of Alternate Collateral dated as of November
5, 2002 (the "Extension Agreement") which amends the AGC Collateral Agency
Agreement as defined below and certain other agreements as set forth therein.
D. The Company, the Secured Creditors and the Collateral Agent entered
into a Collateral Agency and Intercreditor Agreement dated as of July 19, 2002
as amended by the Extension Agreement (the "AGC Collateral Agency Agreement")
which sets forth the rights and duties of the Collateral Agent with respect to
certain collateral for the ratable benefit of the Secured Creditors and certain
other parties.
E. The Guarantor is entering into a Stock and Partnership Interest
Pledge Agreement (the "Pledge Agreement") of even date herewith pursuant to
which the Collateral (as defined in the Pledge Agreement) will serve as security
for this Guaranty.
F. It is a condition precedent to the closing under the Extension
Agreement that the Guarantor shall have executed and delivered this Guaranty.
G. It is in the best interests of the Guarantor to execute this
Guaranty inasmuch as the Guarantor will derive substantial benefits from the
transactions contemplated by the Extension Agreement.
Accordingly, the Guarantor hereby agrees as set forth below.
Section 1. Guaranty.
(a) From and after the Guarantee Effective Date (as defined
below), the Guarantor hereby irrevocably, absolutely and unconditionally
guarantees to Collateral Agent, for the ratable benefit of the Secured
Creditors, the full, faithful and complete performance when due, whether at
stated maturity, by acceleration or otherwise, of all agreements, covenants,
duties and/or obligations (whether known, unknown, fixed, contingent or
otherwise) of the Company now or hereafter existing under the Debt Documents and
the Restructure Documents (as defined in the Restructuring Agreement), including
any respective extensions, modifications, substitutions, amendments and renewals
thereof, whether for principal, interest, fees, expenses, indemnification or
otherwise (the "Guaranteed Obligations"); PROVIDED, HOWEVER, THAT,
NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS GUARANTY, THE SECURED
CREDITORS AGREE THAT THEIR ONLY RECOURSE HEREUNDER WITH RESPECT TO THE
GUARANTEED OBLIGATIONS AND THE GUARANTOR'S OBLIGATIONS UNDER THIS GUARANTEE
SHALL BE TO THE COLLATERAL (AS DEFINED IN THE PLEDGE AGREEMENT) PLEDGED BY THE
GUARANTOR PURSUANT TO THE PLEDGE AGREEMENT AND THAT THE SECURED CREDITORS SHALL
NOT SEEK ANY PERSONAL JUDGMENT AGAINST THE GUARANTOR UNDER THIS GUARANTY;
further provided, however, that nothing contained in the preceding proviso shall
in any way release, affect or impair the existence of the Guaranteed Obligations
or the enforceability of the Restructure Documents, including the enforceability
of the Pledge Agreement executed by the Guarantor. The "Guarantee Effective
Date" shall mean the date hereof.
(b) Subject to the limitations contained in Section 1(a) above,
the Guarantor agrees to pay any and all costs, fees and expenses, including,
without limitation, (i) the reasonable fees and disbursements of Akin, Gump,
Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P. and other counsel to the Purchasers and (ii) the
reasonable fees and disbursements of the Collateral Agent and its counsel, in
each case incurred in connection with enforcing the rights or remedies under
this Guaranty.
(c) Without limiting the generality of the foregoing, this
Guaranty guarantees, to the extent provided herein, the payment of all amounts
that constitute part of the Guaranteed Obligations and would be owed by the
Company to the Secured Creditors under their respective Debt Documents and
Restructure Documents but for the fact that such amounts are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Company.
(d) The obligations of the Guarantor under this Guaranty are
independent of the Guaranteed Obligations, and a separate action or actions may
be brought and prosecuted against the Guarantor to enforce this Guaranty and/or
any other guaranties of the Guaranteed Obligations up to the full amount of the
Guaranteed Obligations, irrespective of whether any action is brought against
the Company or any other such guarantor or whether the Company or any other such
guarantor is joined in any such action or actions, and without proceeding
against any other guarantor, against any security for the Guaranteed Obligations
or under any other guaranty covering all or any portion of the Guaranteed
Obligations.
Section 2. Guaranty Absolute. The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Debt Documents, except to
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the extent modified by the Restructure Documents and any amendments thereto,
regardless of any law, rule, regulation or order by any governmental authority
("Governmental Rule") now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of the Collateral Agent or any of the Secured
Creditors with respect thereto. The liability of the Guarantor under this
Guaranty shall be absolute and unconditional, irrespective of the following:
(a) any lack of validity or enforceability of, or any release or
discharge of the Company from liability under any Debt Document;
(b) any change in the time, manner or place of payment or other
performance of, or in any other term of, any or all of the Guaranteed
Obligations; or any other amendment or waiver of, or any consent to departure
from any Debt Document, including any increase in the Guaranteed Obligations
resulting from the extension of additional credit to the Company;
(c) any taking, subordination, compromise, exchange, release,
nonperfection or liquidation of any collateral, or any release, amendment or
waiver of, or consent to departure from, any other guaranty, for any or all of
the Guaranteed Obligations;
(d) any exercise or nonexercise by the Collateral Agent or any
Secured Creditor of any right or privilege under this Guaranty or any of the
other Debt Documents;
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to the
Guarantor, the Company or any other guarantor of the Guaranteed Obligations; or
any action taken with respect to this Guaranty by any trustee, receiver or court
in any such proceeding, whether or not the Guarantor has had notice or knowledge
of any of the foregoing;
(f) any assignment or other transfer, in whole or in part, of
this Guaranty or any Debt Document;
(g) any acceptance of partial performance of the Guaranteed
Obligations;
(h) any consent to the transfer of, or any bid or purchase at
sale of, any collateral for the Guaranteed Obligations;
(i) any manner of application of collateral, or proceeds thereof,
to any or all of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral or any other assets of the Company;
(j) any change, restructuring or termination of the corporate
structure or existence of the Company; or
(k) any other circumstance (including any statute of limitations)
that might otherwise constitute a defense available to, or a discharge of, the
Company or a guarantor.
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This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Collateral Agent, any Secured Creditor or
any other Person upon the insolvency, bankruptcy or reorganization of the
Company, the Guarantor or otherwise, all as though such payment had not been
made.
Section 3. Waivers.
(a) The Guarantor irrevocably waives, relinquishes and releases
any right, defense, protection, claim of exoneration or other claim, and any
right to assert any right, defense, protection, claim of exoneration or other
claim, in any action brought on, arising out of or relating to this Guaranty or
otherwise. Such waivers include, but are not limited to, the following, to the
extent permitted by applicable law:
(i) promptness, diligence, notice of acceptance and any
other notice with respect to any of the Guaranteed Obligations or this
Guaranty;
(ii) any requirement that the Collateral Agent, any Secured
Creditor or any other Person protect, secure, perfect or insure any
lien or any property subject thereto or exhaust any right or take any
action against the Company, any other Person or any collateral;
(iii) any duty on the part of the Collateral Agent or any
Secured Creditor to disclose to the Guarantor any matter, fact or
thing relating to the business, operation or condition of the Company
or its assets now known or hereafter known by the Collateral Agent or
such Secured Creditor;
(iv) any rights and defenses of the Guarantor under Section
580a of the California Code of Civil Procedure, including the right to
a judicial determination of the fair-market value of any security for
the Guaranteed Obligations, and any other rights and defenses that the
Guarantor may have by reason of protection afforded to the Company
pursuant to the antideficiency or other laws of California limiting or
discharging the Company's obligations with respect to the Guaranteed
Obligations, including Sections 580a, 580b, 580d and 726 of the
California Code of Civil Procedure;
(v) based upon California Civil Code Section 2809, and/or
any claim thereunder or otherwise, that any obligation of Guarantor
under this Guaranty is larger in amount or in other respects more
burdensome than that of the Company, or that any such obligation of
Guarantor is reducible in proportion to any of the Guaranteed
Obligations;
(vi) based upon California Civil Code Section 2810, and/or
any claim thereunder or otherwise, that for any reason there is no
liability upon the part of the Company under any of the Debt Documents
at the time of the execution of any of the Debt Documents, or that,
subject to the provisions of Section 4 hereof, the liability of the
Company under any of the Debt Documents thereafter ceases for any
reason other than the full, effective and irrevocable payment,
performance and/or satisfaction of such liability and the expiration
of all time periods within which any court of competent jurisdiction,
including any foreign court of competent jurisdiction, could order any
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payment relating to the Guaranteed Obligations to be disgorged,
repaid, recovered or paid into court or that, subject to the
provisions of Section 4 hereof, the Collateral Agent or any Secured
Creditor, or any other Person, has recovered any amount which formed
all or part of the consideration for any of the Debt Documents except
only to the extent that any of the Guaranteed Obligations are fully,
effectively, irrevocably and finally paid, performed and satisfied,
and all time periods have expired within which any court of competent
jurisdiction, including any foreign court of competent jurisdiction,
could order any payment relating to the Guaranteed Obligations to be
disgorged, repaid, recovered or paid into court (and then subject to
Section 4 hereof);
(vii) based upon California Civil Code Section 2815, and/or
any claim thereunder or otherwise, that the Guaranty may be revoked in
respect to future transactions, whether or not there is continuing
consideration as to such transactions and whether or not Guarantor
renounces any such consideration;
(viii) based upon California Civil Code Section 2819, and/or
any claim thereunder or otherwise, that any original Guaranteed
Obligation of the Company has been altered in any respect without
Guarantor's consent (whether or not by any act of the Collateral
Agent, any Secured Creditor or any other Person), or that the remedies
or rights of the Collateral Agent, any Secured Creditor or any other
Person against the Company in respect thereto, have been in any way
impaired or suspended;
(ix) based upon California Civil Code Section 2822, and/or
any claim thereunder or otherwise, that acceptance by any of the
Collateral Agent or the Secured Creditors of anything in partial
satisfaction of the Guaranteed Obligations reduces the obligations of
Guarantor hereunder, or otherwise affects the continuing liability of
Guarantor;
(x) based upon California Civil Code Section 2839, and/or
any claim thereunder or otherwise, that, subject to Section 4 hereof,
performance of any or all of the Guaranteed Obligations, or any offer
of such performance, exonerates Guarantor except only to the extent
that any of the Guaranteed Obligations are fully, effectively,
irrevocably and finally paid, performed and satisfied, and all time
periods have expired within which any court of competent jurisdiction,
including any foreign court of competent jurisdiction, could order any
payment relating to the Guaranteed Obligations to be disgorged,
repaid, recovered or paid into court (and then subject to Section 4
hereof);
(xi) based upon California Civil Code Section 2845, and/or
any claim thereunder or otherwise, that Guarantor may require the
Collateral Agent, any Secured Creditor, or any other Person, to
proceed against the Company, or to pursue any other remedy in the
Collateral Agent, such Secured Creditor's, or such other Person's,
power which Guarantor cannot pursue and/or which would lighten
Guarantor's burden, or that the Collateral Agent, any Secured
Creditor, or any other Person, has neglected so to proceed against the
Company, or to pursue any such other remedy;
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(xii) based upon California Civil Code Section 2846, and/or
any claim thereunder or otherwise, that Guarantor may compel the
Company to perform any Guaranteed Obligation when due, whether as a
condition precedent to any liability of Guarantor or otherwise;
(xiii) based upon California Civil Code Section 2847, and/or
any claim thereunder or otherwise, that if Guarantor satisfies any of
the Guaranteed Obligations (or any part thereof), whether with or
without legal proceedings, the Company is or are bound to reimburse
what Guarantor has disbursed, whether or not including any necessary
costs and expenses;
(xiv) based upon California Civil Code Section 2848, and/or
any claim thereunder or otherwise, that Guarantor, upon satisfying or
discharging all or any part of any of the Guaranteed Obligations, is
entitled to enforce any remedy which the Collateral Agent, any Secured
Creditor, or any other Person, then has against the Company, whether
to the extent of reimbursing what the Company has expended or
otherwise, or to require any or all of any co-sureties of Guarantor to
contribute thereto;
(xv) based upon California Civil Code Section 2849, and/or
any claim thereunder or otherwise, that Guarantor is entitled to the
benefit of any security for the performance of any of the Guaranteed
Obligations, whether any such security is held by the Collateral
Agent, any Secured Creditor, or by any co-surety of Guarantor, or
otherwise, and whether any such security was held at the time of
Guarantor's entering into this Guaranty or acquired afterwards, and
whether Guarantor was aware of any such security or not;
(xvi) based upon California Civil Code Section 2850, and/or
any claim thereunder or otherwise, that as to any property of
Guarantor that has been hypothecated with property of the Company,
Guarantor is entitled to have the property of the Company first
applied to the discharge of any or all of the Guaranteed Obligations;
(xvii) based upon California Civil Code Section 2899, and/or
any claim thereunder or otherwise, that the Collateral Agent, any
Secured Creditor, or any other Person, must resort to property upon
which such Collateral Agent, Secured Creditor, or such other Person,
has a lien in any particular order, or must otherwise marshal any such
liens;
(xviii) based upon California Civil Code Section 3433,
and/or any claim thereunder or otherwise, that Guarantor may require
the Collateral Agent, any Secured Creditor, or any other Person, to
seek satisfaction from funds to which Guarantor has no claim or must
otherwise marshal assets;
(xix) otherwise based upon any of the sections of the
California Civil Code referred to in this Section 3; and/or
(xx) based upon any other action or circumstance which might
otherwise constitute a legal or equitable discharge, defense or
exoneration of a guarantor or surety.
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(b) Without limiting the generality of any other provision of this
Guaranty, the Guarantor waives all rights and defenses that she may have with
respect to the Guaranteed Obligations. This means, among other things, that:
(i) the Collateral Agent and the Secured Creditors may
collect from the Guarantor without first foreclosing on any real- or
personal-property collateral pledged by the Company; and
(ii) if the Collateral Agent or any Secured Creditor
forecloses on any real-property collateral pledged by the Company:
(A) 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; and
(B) the Collateral Agent and the Secured Creditors may
collect from the Guarantor even if the Collateral Agent or any Secured Creditor,
by foreclosing on the real-property collateral, has destroyed any right that the
Guarantor may have to collect from the Company.
This is an unconditional and irrevocable waiver of any rights and defenses that
the Guarantor may have because the Company's debt is secured by real property.
These rights and defenses include, but are not limited to, any rights and
defenses based upon Section 580a, 580b, 580d or 726 of the California Code of
Civil Procedure.
Without limiting the generality of the foregoing, the Guarantor hereby
expressly waives (a) pursuant to California Civil Code Section 2856(a)(2), all
rights and defenses arising out of any election of remedies by the Collateral
Agent or any Secured Creditor, even if any such election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed obligation,
has destroyed the Guarantor's rights or impaired any right or claim of
subrogation and/or reimbursement that might otherwise have been available to
Guarantor by the operation of Section 5000(d) of the California Code of Civil
Procedure or otherwise, (b) notice of the acceptance of this Guaranty by any
Person, (c) notice of the Guaranteed Obligations now existing or which may
hereafter exist or be created, (d) notice of any adverse change in the financial
condition of the Company of any other fact that might increase Guarantor's risk
hereunder, (e) notice of demand for payment or performance, or notice of default
or nonpayment or nonperformance, under the Debt Documents (or any of them) or
otherwise in respect of any of the Guaranteed Obligations and (f) all other
notices to which Guarantor might otherwise be entitled in connection with this
Guaranty, the Debt Documents (or any of them) or otherwise in respect of any
Guaranteed Obligation.
Section 4. Subordination. The parties hereto acknowledge that the
rights and obligations of the Guarantor are subordinated to any rights and
obligations of the Secured Creditors as set forth in the Amended and Restated
Credit Enhancement Agreement dated as of the date hereof between the Company,
the Guarantor, ▇▇▇▇▇ ▇. ▇▇▇▇▇ and Mountaingate Land, L.P.. Notwithstanding the
foregoing, if any amount is paid to the Guarantor in connection with any right
of subrogation and the Guaranteed Obligations have not been paid in full, such
amount
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shall be deemed to have been paid to the Guarantor for the benefit of, and held
in trust for the benefit of, the Secured Creditors and shall be forthwith paid
to the Collateral Agent for the benefit of the Secured Creditors to be credited
and applied upon the Guaranteed Obligations, whether matured or unmatured, in
accordance with the terms of the Restructure Documents. The Guarantor
acknowledges that she will receive direct and indirect benefits from the
financing arrangements contemplated by the Restructure Documents and that the
waiver set forth in this Section 4 is knowingly made in contemplation of such
benefits.
Section 5. Effect of Other Guarantees; etc. Neither the existence of
the Guaranty of ▇▇▇▇▇ ▇. ▇▇▇▇▇ and the ▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust, the Guaranty of
Mountaingate Land, the Guaranty of ▇▇▇ ▇▇▇▇▇▇▇ Golf or the Guaranty of GEI, the
release of Mountaingate Land, ▇▇▇ ▇▇▇▇▇▇▇ Golf or GEI, any settlement with
Mountaingate Land, ▇▇▇ ▇▇▇▇▇▇▇ Golf or GEI, nor the revocation or impairment of
the Guaranty of Mountaingate Land, the Guaranty of ▇▇▇ ▇▇▇▇▇▇▇ Golf or the
Guaranty of GEI, shall directly or indirectly in any manner operate to prejudice
any of the rights, privileges, preferences and remedies of the Collateral Agent
and any Secured Creditor against the Guarantor hereunder. Any of the Collateral
Agent and any Secured Creditor may proceed directly against Guarantor hereunder
without proceeding against any such other guarantor irrespective of, and without
regard to, any actions, suits or proceedings that are or may be initiated,
undertaken or maintained by any of the Collateral Agent or any Secured Creditor
against any such other guarantor.
Section 6. Representations and Warranties. The Guarantor represents
and warrants to the Secured Creditors and the Collateral Agent as set forth
below:
(a) The execution, delivery and performance by the Guarantor of
this Guaranty and the Extension Agreement, and the consummation of the
transactions contemplated hereby and thereby, are within the Guarantor's powers,
and does not (i) violate any applicable Governmental Rule, (ii) conflict with or
result in the breach of, or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, any loan agreement,
indenture, mortgage, deed of trust or lease, or any other contract or
instrument, binding on or affecting the Guarantor or its respective properties
or give rise to termination, cancellation, amendment or acceleration under such
agreements, or (iii) result in or require the creation or imposition of any lien
upon or with respect to any of the properties of the Guarantor other than in
favor of the Collateral Agent for the benefit of the Secured Creditors. The
Guarantor is not in violation of any Governmental Rule or in breach of any such
loan agreement, indenture, mortgage, deed of trust, lease, contract or
instrument, the violation or breach of which could reasonably be expected to
cause a Material Adverse Effect (hereinafter defined). For Purposes of this
Guaranty, "Material Adverse Effect" means a material adverse effect on (i) the
ability of the Guarantor to perform her material obligations under the
Restructure Documents to which the Guarantor is a party or this Guaranty or (ii)
the validity or enforceability of any of the Restructure Documents to which the
Guarantor is a party or this Guaranty or this Guaranty or the material rights or
remedies of the Secured Creditors thereunder or hereunder.
(b) No action by any governmental authority, and no
authorization, approval or other action by, or notice to, any other third party,
is required for the due execution, delivery or performance by the Guarantor of
this Guaranty or any other Restructure Document to which the Guarantor is or is
to be a party, or for the consummation of the transactions
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contemplated hereby or thereby, except for such action by a governmental
authority, authorizations, approvals, other action and notices that have been
duly taken, obtained or given and are in full force and effect and copies of
which have been delivered to the Collateral Agent.
(c) This Guaranty and the Extension Agreement when delivered will
be, duly executed and delivered by the Guarantor. This Guaranty and the
Extension Agreement when delivered will be, legal, valid and binding obligations
of the Guarantor, enforceable against the Guarantor in accordance with their
respective terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting creditors' rights generally or by equitable principles relating to
enforceability.
(d) The Guarantor is financially solvent. There are no
bankruptcy, insolvency, receivership or sequestration proceedings pending
against the Guarantor.
(e) The Guarantor is the sole registered owner of the Pledged
Securities (as defined in the Pledge Agreement).
(f) The Guarantor represents and warrants that the execution,
delivery and performance of this Guaranty shall not: (i) render her insolvent as
that term is defined below; (ii) leave her with remaining assets which
constitute unreasonably small capital given the nature of her business; or (iii)
result in the incurrence of Debts (as defined below) beyond its ability to pay
them when and as they mature and become due and payable. For purposes of this
paragraph, "insolvent" means that the present fair salable value of assets is
less than the amount that shall be required to pay the probable liability on
existing Debts as they become absolute and matured, or with respect to any
entity, the sum of such entity's debts is greater than all of such entity's
property, at a fair valuation. For the purposes of this paragraph, "Debts"
includes any legal liability for indebtedness, whether matured or unmatured,
liquidated or unliquidated, absolute, fixed or contingent. The Guarantor hereby
acknowledges and warrants that she has derived or expects to derive a
substantial financial or other benefit or advantage from this Guaranty.
Section 7. Limited Recourse. No recourse shall be sought under this
Guaranty except as permitted under Section 14(f) and 14(h) of the AGC Collateral
Agency Agreement.
Section 8. Amendments, Etc. No amendment or waiver of any provision of
this Guaranty or consent to any departure by the Guarantor therefrom shall in
any event be effective unless the same is in writing and is consented to in one
or more writings signed by the Collateral Agent, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed or consented to by all of the Secured Creditors,
(a) release the Guarantor from its obligations under this Guaranty, (b) postpone
any date fixed for payment hereunder, or (c) amend this Section 8. Delivery by
telecopier of an executed counterpart of any amendment or waiver, or consent to
departure from, any provision of this Guaranty shall be effective as delivery of
an originally executed counterpart thereof.
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Section 9. Notices, Etc. All notices, demands and other communications
provided for hereunder shall be in writing (including communication by
telecopier) and shall be mailed, telecopied or delivered to the Guarantor or the
Collateral Agent, as the case may be, at the address therefor (or, in the case
of the Guarantor, for the Company) set forth in the AGC Collateral Agency
Agreement or at such other address as may be designated by any such party in a
written notice to the other parties complying with the terms of this section.
All such notices, demands and other communications shall be effective as
provided in the Restructuring Agreement. In the case of notices sent by mail to
the Collateral Agent, such notices shall be deemed delivered upon receipt by the
recipient.
Section 10. No Waiver; Remedies. No failure on the part of the
Collateral Agent or any Secured Creditor to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, and no single
or partial exercise of any right shall preclude any other or further exercise
thereof or the exercise of any other right. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law. Guarantor hereby
covenants and agrees that the failure by Collateral Agent or any Secured
Creditor, or any other Person, to file or enforce a claim against Guarantor, or
Company, or any other guarantor, shall not affect Guarantor's liability
hereunder nor shall Guarantor be released from liability hereunder if recovery
from Company, any other guarantor, payor, endorser or surety in respect of any
of the Guaranteed Obligations or any other Person becomes barred by any statute
of limitations.
Section 11. Continuing Guaranty. This Guaranty is a continuing
guaranty and shall (a) remain in full force and effect until payment in full of
the Guaranteed Obligations and all other amounts payable under this Guaranty and
until all time periods have expired within which any court of competent
jurisdiction could order payments with respect to such obligations to be
disgorged, repaid, recovered or paid to court, (b) be binding upon the Guarantor
and its successors and assigns, (c) inure to the benefit of, and be enforceable
by, the Collateral Agent and the Secured Creditors and their respective
successors, transferees and assigns and (d) be irrevocable, unconditional and
primary obligations of the Guarantor irrespective of the validity or
enforceability of the Guaranteed Obligations. Without limiting the generality of
the foregoing clause (c), any Secured Creditor may assign or otherwise transfer
any or all of its rights and obligations under the Debt Documents and the
Restructure Documents to any other Person, and such other Person shall thereupon
become vested with all of the rights in respect thereof granted to such Secured
Creditor herein or otherwise, subject, however, to the provisions of the AGC
Collateral Agency Agreement and the Restructuring Agreement.
Section 12. No Assignment or Delegation By Guarantor. Guarantor may
not assign any of its rights, or delegate any of its duties or obligations,
hereunder without the prior written consent of the Secured Creditors and any
such assignment or delegation without the prior written consent of the Secured
Creditors shall be void ab initio and of no legal force or effect whatsoever.
Section 13. Termination. Upon the earlier to occur of (a) the
provision of the Alternate Pledge Collateral (as defined in the AGC Collateral
Agency Agreement) in the form of a Letter of Credit (as defined in the AGC
Collateral Agency Agreement) pursuant to Section 14(e) of the AGC Collateral
Agency Agreement or (b) the full, effective, irrevocable, final and indefeasible
payment, performance and satisfaction of each and all of the Guaranteed
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Obligations and the full, effective and irrevocable performance by Guarantor of
each and all of its covenants, agreements, duties and obligations under this
Guaranty, and the expiration of all time periods within which any court of
competent jurisdiction, including any foreign court of competent jurisdiction,
could order any payment relating to the Guaranteed Obligations to be disgorged,
repaid, recovered or paid into court, this Guaranty shall terminate.
Section 14. Effect of Waivers. Guarantor hereby recognizes,
acknowledges and agrees, as to each provision of this Guaranty that sets forth
any waiver, relinquishment and/or release by Guarantor of any claim, defense or
other right of Guarantor, or that sets forth any other waiver, relinquishment
and/or release by Guarantor: that, as a result of such provision, at the date of
this Guaranty or thereafter, Guarantor may have waived, relinquished or released
one or more claims, defenses or other rights of partial or complete exoneration
of Guarantor's liability under this Guaranty which could arise as a result of
events that might materially prejudice Guarantor and/or rights of reimbursement
or other recovery Guarantor might otherwise enjoy; that, but for such waiver,
relinquishment and/or release, Guarantor might have a partial or complete
defense to liability under this Guaranty; and that, as a result of such waiver,
relinquishment and/or release, Guarantor might incur liability under this
Guaranty that Guarantor might not otherwise have incurred, and might lose rights
against other Persons and/or property that Guarantor might otherwise have
enjoyed. Guarantor hereby further recognizes, acknowledges and agrees: that
Guarantor has been advised by legal counsel as to the significance and legal
effect of each provision of this Guaranty (including specifically, but without
limitation, each waiver, relinquishment and release on the part of Guarantor
provided for herein and of the rights Guarantor would have had but for such
waivers, relinquishments and releases), and that Guarantor has fully analyzed,
with full advice and assistance of such counsel, every provision of this
Guaranty (including specifically, but without limitation, every waiver, release
and relinquishment on the part of Guarantor provided for herein) for the purpose
of assessing the impact thereof upon Guarantor and upon Guarantor's obligations
and liabilities under this Guaranty; that Guarantor has made whatever
investigations and inquiries she and/or her counsel have deemed necessary or
advisable in connection with the subject matter of this, and that, following
such investigations and inquiries, Guarantor is willing to enter into this
Guaranty (and make the guarantees provided herein) and incur all the liabilities
and risks attendant to Guarantor's obligations under this Guaranty. Guarantor
recognizes, acknowledges and agrees that the Collateral Agent and the Secured
Creditors are relying upon the making by Guarantor of each of its covenants,
agreements, representations and warranties hereunder (including specifically,
but without limitation, each of the waivers, relinquishments and releases on the
part of Guarantor provided for herein) in connection with the execution and
delivery of the Extension Agreement by the Secured Creditors, and is relying
upon the full enforceability of each of the provisions of this Guaranty
(including specifically, but without limitation, each such waiver,
relinquishment and release) and that if Guarantor were not making such waivers,
relinquishments and releases, the Secured Creditors would not be willing to
enter into the Extension Agreement.
Section 15. Entire Agreement. This Guaranty (together with the
Extension Agreement, Restructuring Agreement, the Pledge Agreement and the AGC
Collateral Agency Agreement) embodies the entire understanding of the Secured
Creditors and Guarantor with respect to Guarantor's obligation to guarantee the
full payment, performance and satisfaction of the Guaranteed Obligations and
there are no further or other agreements or understandings,
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written or oral, in effect between said parties relating to the guarantee by
Guarantor of the Guaranteed Obligations unless otherwise referred to herein.
Section 16. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA
WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
Section 17. Submission to Jurisdiction. Each party hereto hereby
irrevocably and unconditionally (a) submits for itself and its property in any
legal action or proceeding relating to this Guaranty or any other Restructure
Document to which she is a party, and for recognition and enforcement of any
judgment in respect thereof, to the nonexclusive general jurisdiction of the
courts of the State of California, the courts of the United States of America
for the Central District of California; (b) consents that any such action or
proceeding may be brought in such courts and waives any objection that she may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient forum and
agrees not to plead or claim the same; (c) agrees that service of process in any
such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to the Guarantor, the applicable Secured Creditor or the
Collateral Agent, as the case may be, at the address specified herein or at such
other address as to which the Guarantor, such Secured Creditor and the
Collateral Agent are notified pursuant hereto; (d) agrees that nothing herein
shall affect the right to effect service of process in any other manner
permitted by law or limit the right to ▇▇▇ in any other jurisdiction; and (e)
waives, to the maximum extent not prohibited by law, any right she may have to
claim or recover punitive damages in any legal action or proceeding referred to
in this section.
Section 18. Headings. Section headings in this Guaranty are for
convenience of reference only and shall not be considered in the interpretation
of any of the provisions hereof.
Section 19. Survival of Representation and Warranties. All
representations and warranties made herein or in any other Debt Document or
Restructure Document (including any amendment or other modification hereto or
thereto) or in any certificate delivered pursuant hereto or pursuant to any
other Debt Document or Restructure Document shall survive the execution and
delivery of this Guaranty.
Section 20. Severability. Any provision of this Guaranty that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and no such prohibition or
unenforceability in any jurisdiction shall invalidate or render unenforceable
such provision in any other jurisdiction.
Section 21. Execution in Counterparts. This Guaranty may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the same
agreement. Delivery by telecopier of an executed counterpart of a signature page
to this Guaranty shall be effective as delivery of an originally executed
counterpart of this Guaranty.
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Section 22. WAIVER OF JURY TRIAL. EACH OF THE GUARANTOR, THE
COLLATERAL AGENT AND THE SECURED CREDITORS HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM RELATING TO THIS
GUARANTY OR ANY OTHER DEBT DOCUMENT OR RESTRUCTURE DOCUMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY OR THEREBY.
Section 23. Release of Claims.
(a) The Guarantor represents and agrees that she has diligently and
thoroughly investigated the existence of any Claim (as defined below), and, to
her knowledge and belief, no Claim exists and no facts exist that could give
rise to or support a Claim. As additional consideration for the Collateral Agent
entering into this Guaranty, the Guarantor by her execution of this Guaranty,
and on behalf of herself and each of her respective agents, attorneys, financial
advisors, affiliates and assigns (each a "Releasing Party"), each hereby release
and forever discharge each Secured Creditor and each of such Secured Creditor's
agents, direct and indirect shareholders, employees, directors, officers,
attorneys, branches, affiliates, subsidiaries, successors and assigns (each a
"Released Party") from all damages, losses, claims, demands, liabilities,
obligations, actions and causes of action whatsoever (collectively "Claims")
that the Releasing Parties or any of them may, as of the date hereof, have or
claim to have against any or all of the Released Parties, in each case whether
currently known or unknown or with respect to which the facts are known (or
should have been known), that could give rise to or support a Claim and of every
nature and extent whatsoever on account of or in any way relating to, arising
out of or based upon this Guaranty or the negotiation or documentation hereof or
any amendments or the transactions contemplated hereby, or any action or
omission in connection with any of the foregoing, including all such losses or
damages of any kind heretofore sustained or that may arise as a consequence of
the dealings between the parties up to the date hereof in connection with or in
any way related to this Guaranty.
(b) Each Releasing Party further covenants and agrees that she has not
heretofore assigned, and shall not hereafter ▇▇▇ any Released Party upon, any
Claim released or purported to be released under this Section 23, and each
Releasing Party shall indemnify and hold harmless the Released Parties against
any loss or liability on account of any actions brought by such Releasing Party
or its assigns or prosecuted on behalf of such Releasing Party and relating to
any Claim released or purported to be released under this Section 23. It is
further understood and agreed that any and all rights under the provisions of
Section 1542 of the California Civil Code are expressly waived by each of the
Releasing Parties. Section 1542 of the California Civil Code provides as
follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HER MUST HAVE MATERIALLY AFFECTED HER
SETTLEMENT WITH THE DEBTOR."
Signature Page Follows
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IN WITNESS WHEREOF, the parties hereto have caused this Limited
Recourse Dallas P. Price Guaranty to be duly executed and delivered by their
proper and duly authorized officers as of the day and year first above written.
DALLAS P. PRICE,
An Individual
By: /s/ Dallas P. Price
-----------------------------------
Name: Dallas P. Price
-----------------------------------
Title:
----------------------------------
THE DALLAS P. PRICE TRUST
By: /s/ Dallas P. Price
-----------------------------------
Name: Dallas P. Price
-----------------------------------
Title: Trustee
---------------------------------
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BNY MIDWEST TRUST COMPANY,
as Collateral Agent for the Secured
Creditors
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Assistant Vice President
----------------------------------
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