CONTINUING GUARANTY
Exhibit 10.19
TO: XXXXX FARGO BANK, NATIONAL ASSOCIATION
1. GUARANTY; DEFINITIONS. In consideration of any credit or other financial accommodation
heretofore, now or hereafter extended or made to GLOBAL WATER RESOURCES LLC, a Delaware limited
liability company, GLOBAL WATER MANAGEMENT, LLC, a Delaware limited liability company and GLOBAL
WATER RESOURCES, INC., a Delaware corporation (“Borrowers”), or any of them, by XXXXX FARGO BANK,
NATIONAL ASSOCIATION (“Bank”), and for other valuable consideration, the undersigned XXXXXXX X.
XXXXXX, a married man dealing with his sole and separate property (“Guarantor”), jointly and
severally unconditionally guarantees and promises to pay to Bank, or order, on demand in lawful
money of the United States of America and in immediately available funds, any and all Indebtedness
of any of the Borrowers to Bank. The term “Indebtedness” is used herein in its most comprehensive
sense and includes any and all advances, debts, obligations and liabilities of Borrowers, or any of
them, 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 unliquidated,
determined or undetermined, and whether Borrowers may be liable individually or jointly with
others, or whether recovery upon such Indebtedness may be or hereafter becomes unenforceable.
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 Indebtedness of each of the Borrowers to Bank, including that arising under successive
transactions which shall either continue the Indebtedness, increase or decrease it, or from time
to time create new Indebtedness after all or any prior Indebtedness has been satisfied, and
notwithstanding the death, incapacity, dissolution, liquidation or bankruptcy of any of the
Borrowers or Guarantor or any other event or proceeding affecting any of the Borrowers or
Guarantor. This Guaranty shall not apply to any new Indebtedness created after actual receipt by
Bank of written notice of its revocation as to such new Indebtedness; provided however, that loans
or advances made by Bank to any of the Borrowers after revocation under commitments existing prior
to receipt by Bank of such revocation, and extensions, renewals or modifications, of any kind, of
Indebtedness incurred by any of the Borrowers or committed by Bank prior to receipt by Bank of
such revocation, shall not be considered new Indebtedness. Any such notice must be sent to Bank by
registered U.S. mail, postage prepaid, addressed to its office at 100 X. Xxxxxxxxxx, MAC
S4101-251, Xxxxxxx, Xxxxxxx 00000, or at such other address as Bank shall from time to time
designate. Any payment by Guarantor shall not reduce Guarantor’s maximum obligation hereunder
unless written notice to that effect is actually received by Bank at or prior to the time of such
payment. The obligations of Guarantor hereunder shall be in addition to any obligations of
Guarantor under any other guaranties of any liabilities or obligations of any of the Borrowers or
any other persons heretofore or hereafter given to Bank unless said other guaranties are expressly
modified or revoked in writing; and this Guaranty shall not, unless expressly herein provided,
affect or invalidate any such other guaranties.
3. OBLIGATIONS JOINT AND SEVERAL; SEPARATE ACTIONS; WAIVER OF STATUTE OF LIMITATIONS;
REINSTATEMENT OF LIABILITY. The obligations hereunder are joint and several and independent of the
obligations of Borrowers, and a separate action or actions may be brought and prosecuted against
Guarantor whether action is brought against any of the Borrowers or any other person, or whether
any of the Borrowers or any other person is joined in any such action or actions. Guarantor
acknowledges that this Guaranty is absolute and unconditional, there are no conditions precedent
to the effectiveness of this Guaranty, and this Guaranty is in full force and effect and is
binding on Guarantor as of the date written below, regardless of whether Bank 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 Guarantor’s liability hereunder or the
enforcement thereof, and Guarantor agrees that any payment of any Indebtedness or other act which
shall toll any statute of limitations applicable thereto shall similarly operate to toll such
statute of limitations applicable to Guarantor’s liability hereunder. The liability of Guarantor
hereunder shall be reinstated and revived and the rights of Bank shall continue if and to the
extent for any reason any amount at any time paid on
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account of any Indebtedness guaranteed hereby is rescinded or must otherwise be restored by Bank,
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 Bank in its sole discretion; provided however, that if Bank chooses to
contest any such matter at the request of Guarantor, Guarantor agrees to indemnify and hold Bank
harmless from and against all costs and expenses, including reasonable attorneys’ fees, expended or
incurred by Bank in connection therewith, including without limitation, in any litigation with
respect thereto.
4. AUTHORIZATIONS TO BANK. Guarantor authorizes Bank 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 Indebtedness 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 Indebtedness 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 Bank
in its discretion may determine; (d) release or substitute any one or more of the endorsers or any
other guarantors of the Indebtedness, or any portion thereof, or any other party thereto; and (e)
apply payments received by Bank from any of the Borrowers to any Indebtedness of any of the
Borrowers to Bank, in such order as Bank shall determine in its sole discretion, whether or not
such Indebtedness is covered by this Guaranty, and Guarantor hereby waives any provision of law
regarding application of payments which specifies otherwise. Bank may without notice assign this
Guaranty in whole or in part. Upon Bank’s request, Guarantor agrees to provide to Bank copies of
Guarantor’s financial statements.
5. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Bank that: (a) this
Guaranty is executed at Borrowers’ request; (b) Guarantor shall not, without Bank’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) Bank has made no representation to Guarantor as to the creditworthiness
of any of the Borrowers; and (d) Guarantor has established adequate means of obtaining from each
of the Borrowers on a continuing basis financial and other information pertaining to Borrowers’
financial condition. Guarantor agrees to keep adequately informed from such means of any facts,
events or circumstances which might in any way affect Guarantor’s risks hereunder, and Guarantor
further agrees that Bank shall have no obligation to disclose to Guarantor any information or
material about any of the Borrowers which is acquired by Bank in any manner.
6. GUARANTOR’S WAIVERS.
(a) Guarantor waives any right to require Bank to: (i) proceed against any of the Borrowers
or any other person; (ii) marshal assets or proceed against or exhaust any security held from any
of the Borrowers 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 held from any of the Borrowers
or any other person; (iv) take any action or pursue any other remedy in Bank’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 Bank as security for or which constitute in whole or in part the Indebtedness
guaranteed hereunder, or in connection with the creation of new or additional Indebtedness.
(b) Guarantor waives any defense to its obligations hereunder based upon or arising by reason
of: (i) any disability or other defense of any of the Borrowers or any other person; (ii) the
cessation or limitation from any cause whatsoever, other than payment in full, of the Indebtedness
of any of the Borrowers or 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 of the Borrowers
which is a corporation, partnership or other type of entity, or any defect in the formation of any
such Borrower; (iv) the application by any of the Borrowers of the proceeds of any Indebtedness
for purposes other than the purposes represented by Borrowers to, or intended or understood by,
Bank or Guarantor; (v) any act or omission by
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Bank which directly or indirectly results in or aids the discharge of any of the Borrowers or any
portion of the Indebtedness by operation of law or otherwise, or which in any way impairs or
suspends any rights or remedies of Bank against any of the Borrowers; (vi) any impairment of the
value of any interest in any security for the Indebtedness 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, and/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 Indebtedness, in any form whatsoever, including any modification made after
revocation hereof to any Indebtedness 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 Indebtedness or any portion thereof, including increase or decrease of
the rate of interest thereon; or (viii) any requirement that Bank give any notice of acceptance of
this Guaranty. Until all Indebtedness shall have been paid in full, Guarantor shall have no right
of subrogation, and Guarantor waives any right to enforce any remedy which Bank now has or may
hereafter have against any of the Borrowers or any other person, and waives any benefit of, or any
right to participate in, any security now or hereafter held by Bank.
Guarantor further waives all
rights and defenses Guarantor may have arising out of (A) any election of remedies by Bank, even
though that election of remedies, such as a non-judicial foreclosure with respect to any security
for any portion of the Indebtedness, destroys Guarantor’s rights of subrogation or Guarantor’s
rights to proceed against any of the Borrowers for reimbursement, or (B) any loss of rights
Guarantor may suffer by reason of any rights, powers or remedies of any of the Borrowers in
connection with any anti-deficiency laws or any other laws limiting, qualifying or discharging
Borrowers’ Indebtedness, 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 sate or other disposition of any real property security for any portion of the
Indebtedness, and Guarantor waives the benefits of A.R.S. §§12-1566, 12-1641 et seq., 33-814,
44-142 and Rule 17(F) of the Arizona Rules of Civil Procedure.
7. BANK’S
RIGHTS WITH RESPECT TO GUARANTOR’S PROPERTY IN BANK’S POSSESSION. In addition to all
liens upon and rights of setoff against the monies, securities or other property of Guarantor
given to Bank by law, Bank 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 Bank, 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 Bank, 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 Bank in writing
8. SUBORDINATION. Any Indebtedness of any of the Borrowers now or hereafter held by Guarantor
is hereby subordinated to the Indebtedness of Borrowers to Bank. Such Indebtedness of Borrowers to
Guarantor is assigned to Bank as security for this Guaranty and the Indebtedness and, if Bank
requests, shall be collected and received by Guarantor as trustee for Bank and paid over to Bank
on account of the Indebtedness of Borrowers to Bank 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 any of the Borrowers to Guarantor
shall be marked with a legend that the same are subject to this Guaranty and, if Bank so requests,
shall be delivered to Bank. Bank 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 Bank deems necessary or appropriate to perfect, preserve and enforce its
rights hereunder.
9. REMEDIES; NO WAIVER. All rights, powers and remedies of Bank hereunder are cumulative. No
delay, failure or discontinuance of Bank 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 Bank 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 Bank immediately upon demand
the full amount of all payments, advances, charges, costs and expenses, including reasonable
attorneys’ fees (to include outside counsel fees and all allocated costs of Bank’s in-house
counsel), expended or incurred by Bank in connection with the enforcement of any of Bank’s rights,
powers or remedies and/or the collection of any amounts which become due to Bank 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 Bank or any other
person) relating to Guarantor or any other person or entity. 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 Bank’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 Bank’s prior written consent. Guarantor acknowledges that Bank has the
right to sell, assign, transfer, negotiate or grant participations in all or any part of, or any
interest in, any Indebtedness of Borrowers to Bank and any obligations with respect thereto,
including this Guaranty. In connection therewith, Bank may disclose all documents and information
which Bank now has or hereafter acquires relating to Guarantor and/or this Guaranty, whether
furnished by Borrowers, Guarantor or otherwise. Guarantor further agrees that Bank may disclose
such documents and information to Borrowers.
12. AMENDMENT. This Guaranty may be amended or modified only in writing signed by Bank and
Guarantor.
13. OBLIGATIONS OF MARRIED PERSONS. Guarantor hereby expressly agrees that recourse may be
had against Guarantor’s separate property for all of Guarantor’s obligations under this Guaranty.
Until such time as the obligations under this Guaranty are discharged in full, Guarantor shall not
transmute any separate property to community property or to the separate property of Guarantor’s
spouse (each, a “Transmutation”), without the prior written consent of Lender. Guarantor
represents and warrants that the assets listed on Guarantor’s personal financial statement dated
December 31, 2004 are the separate property of Guarantor.
14. APPLICATION OF SINGULAR AND PLURAL. In all cases where there is but a single Borrower,
then all words used herein in the plural shall be deemed to have been used in the singular where
the context and construction so require; and when there is more than one Borrower named herein, or
when this Guaranty is executed by more than one Guarantor, the word “Borrowers” and the word
“Guarantor” respectively shall mean all or any one or more of them as the context requires.
15. 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.
16. GOVERNING LAW. This Guaranty shall be governed by and construed in accordance with the
laws of the Slate of Arizona.
17. ARBITRATION.
(a) Arbitration. The parties hereto agree, upon demand by any party, to submit to
binding arbitration all claims, disputes and controversies between or among them (and their
respective
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employees, officers, directors, attorneys, and other agents), whether in tort, contract or
otherwise arising out of or relating to in any way (i) the loan and related loan and security
documents which are the subject of this Guaranty and its negotiation, execution, collateralization,
administration, repayment, modification, extension, substitution, formation, inducement,
enforcement, default or termination; or (ii) requests for additional credit.
(b) Governing Rules, Any arbitration proceeding will (i) proceed in a location in
Arizona selected by the American Arbitration Association (“AAA”); (ii) be governed by the Federal
Arbitration Act (Title 9 of the United States Code), notwithstanding any conflicting choice of law
provision in any of the documents between the parties; and (iii) be conducted by the AAA, or such
other administrator as the parties shall mutually agree upon, in accordance with the AAA’s
commercial dispute resolution procedures, unless the claim or counterclaim is at least
$1,000,000.00 exclusive of claimed interest, arbitration fees and costs in which case the
arbitration shall be conducted in accordance with the AAA’s optional procedures for large, complex
commercial disputes (the commercial dispute resolution procedures or the optional procedures for
large, complex commercial disputes to be referred to, as applicable, as the “Rules”). If there is
any inconsistency between the terms hereof and the Rules, the terms and procedures set forth herein
shall control. Any party who fails or refuses to submit to arbitration following a demand by any
other party shall bear all costs and expenses incurred by such other party in compelling
arbitration of any dispute. Nothing contained herein shall be deemed to be a waiver by any party
that is a bank of the protections afforded to it under 12 U.S.C. §91 or any similar applicable
state law.
(c) No
Waiver of Provisional Remedies, Self-Help and Foreclosure. The arbitration
requirement does not limit the right of any party to (i) foreclose against real or personal
property collateral; (ii) exercise self-help remedies relating to collateral or proceeds of
collateral such as setoff or repossession; or (iii) obtain provisional or ancillary remedies such
as replevin, injunctive relief, attachment or the appointment of a receiver, before during or
after the pendency of any arbitration proceeding. This exclusion does not constitute a waiver of
the right or obligation of any party to submit any dispute to arbitration or reference hereunder,
including those arising from the exercise of the actions detailed in sections (i), (ii) and (iii)
of this paragraph.
(d) Arbitrator Qualifications and Powers. Any arbitration proceeding in which the
amount in controversy is $5,000,000.00 or less will be decided by a single arbitrator selected
according to the Rules, and who shall not render an award of greater than $5,000,000.00. Any
dispute in which the amount in controversy exceeds $5,000,000.00 shall be decided by majority vote
of a panel of three arbitrators; provided however, that all three arbitrators must actively
participate in all hearings and deliberations. The arbitrator will be a neutral attorney licensed
in the State of Arizona or a neutral retired judge of the state or federal judiciary of Arizona,
in either case with a minimum of ten years experience in the substantive law applicable to the
subject matter of the dispute to be arbitrated. The arbitrator will determine whether or not an
issue is arbitratable and will give effect to the statutes of limitation in determining any claim.
In any arbitration proceeding the arbitrator will decide (by documents only or with a hearing at
the arbitrator’s discretion) any pre-hearing motions which are similar to motions to dismiss for
failure to state a claim or motions for summary adjudication. The arbitrator shall resolve all
disputes in accordance with the substantive law of Arizona and may grant any remedy or relief that
a court of such state could order or grant within the scope hereof and such ancillary relief as is
necessary to make effective any award. The arbitrator shall also have the power to award recovery
of all costs and fees, to impose sanctions and to take such other action as the arbitrator deems
necessary to the same extent a judge could pursuant to the Federal Rules of Civil Procedure, the
Arizona Rules of Civil Procedure or other applicable law. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction. The institution and maintenance of an
action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a
waiver of the right of any party, including the plaintiff, to submit the controversy or claim to
arbitration if any other party contests such action for judicial relief.
(e) Discovery. In any arbitration proceeding discovery will be permitted in
accordance with the Rules. All discovery shall be expressly limited to matters directly relevant
to the dispute being arbitrated and must be completed no later than 20 days before the hearing
date and within 180 days of the filing of the dispute with the AAA. Any requests for an
extension of the discovery periods, or any discovery
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disputes, will be subject to final determination by the arbitrator upon a showing that the request
for discovery is essential for the party’s presentation and that no alternative means for obtaining
information is available.
(f) Class Proceedings and Consolidations. The resolution of any dispute arising
pursuant to the terms of this Guaranty shall be determined by a separate arbitration proceeding
and such dispute shall not be consolidated with other disputes or included in any class
proceeding.
(g) Payment Of Arbitration Costs And Fees. The arbitrator shall award all costs and
expenses of the arbitration proceeding.
(h) Miscellaneous. To the maximum extent practicable, the AAA, the arbitrators and
the parties shall take all action required to conclude any arbitration proceeding within 180 days
of the filing of the dispute with the AAA. No arbitrator or other party to an arbitration
proceeding may disclose the existence, content or results thereof, except for disclosures of
information by a party required in the ordinary course of its business or by applicable law or
regulation. If more than one agreement for arbitration by or between the parties potentially
applies to a dispute, the arbitration provision most directly related to the documents between the
parties or the subject matter of the dispute shall control. This arbitration provision shall
survive termination, amendment or expiration of any of the documents or any relationship between
the parties.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty as of December 9,
2005.
| /s/ XXXXXXX X. XXXXXX | ||||
| XXXXXXX X. XXXXXX | ||||
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