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GUARANTY
THIS GUARANTY dated as of April 9, 1997 is made and delivered by
Consolidated Capital of North America, Inc., a Colorado corporation
("Consolidated Capital") and Stone Pine Colorado, LLC, a Colorado limited
liability company ("Stone Pine Colorado"), to and for the benefit of XXX
Acquisition Group, LLC, a Nebraska limited liability company ("Lender").
A. Angeles Metal Trim Co. ("Borrower"), a wholly owned subsidiary of
Consolidated Capital, has entered into a Loan Agreement dated as of the date
hereof (the "Loan Agreement") by and among Borrower, Consolidated Capital,
Stone Pine Colorado and Lender, pursuant to which Lender has agreed to make a
loan to or for the benefit of Borrower which loan is evidenced by a Promissory
Note of the Borrower dated the date hereof in the aggregate principal amount of
$309,000.00 (the "Note").
X. Xxxxx Pine Colorado is the beneficial owner of approximately 42% of the
outstanding Common Shares of Consolidated Capital.
C. To induce Lender to make the Loan, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Consolidated Capital and Stone Pine Colorado are willing to guarantee the
performance of certain obligations of Borrower as set forth herein.
D. As used in Guaranty, the word "Guarantor" shall mean either
Consolidated Capital or Stone Pine Colorado and any one or more of them, and
their respective successors and assigns and words used herein in the singular
shall be considered to have been used in the plural where the context and
construction so requires in order to refer to more than one Guarantor.
NOW, THEREFORE, in consideration of the foregoing premises and intending
to be legally bound hereby, the undersigned agree as follows:
1. Obligations Guarantied. For consideration, the adequacy and sufficiency of
which is acknowledged, the Guarantors jointly and severally unconditionally
guarantee the payment and performance of Borrower's obligations under the Loan
Agreement and Note and the payment of all liabilities of Borrower to Lender,
whether absolute or contingent, matured or unmatured, direct or indirect,
similar or dissimilar, due or to become due arising under the Loan Agreement
and the Note (all such payment, and performance obligations are hereinafter
referred to as the "Obligations"). Guarantor's liability under this Guaranty
for Borrower's Obligations shall not exceed at any one time the sum of the
following (the "Guarantied Liability Amount"): (a) Three Hundred and Nine
Thousand and no/100 Dollars ($309,000.00) for Obligations representing
principal ("Principal Amount"), (b) all interest, fees and like charges owing
and allocable to the Principal Amount under the Note, (c) the value of the
Common Shares (as such term is defined in the Loan Agreement) to be issued to
Lender by Consolidated Capital and (d) all costs, attorneys' fees, and expenses
of Lender relating to or arising out of the enforcement of the Obligations and
this Guaranty.
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The foregoing limitation applies only to Guarantor's liability under
this particular Guaranty. Unless Lender otherwise agrees in writing, every
other guaranty of any obligations previously, concurrently, or hereafter given
to Lender by Guarantor is independent of this Guaranty and of every other such
guaranty. Without notice to Guarantor, Lender may permit the Obligations to
exceed the Principal Amount and may apply or reapply any amounts received in
respect of the Obligations from any source other than from Guarantor to that
portion of the Obligations not included within the Guarantied Liability Amount.
2. Continuing Nature/Revocation/Reinstatement. This Guaranty is in addition to
any other guaranties of the Obligations, is continuing and covers all
Obligations. Revocation by one or more signers of this Guaranty or any other
guarantors of the Obligations shall not (a) affect the obligations under this
Guaranty of a non-revoking Guarantor, (b) apply to Obligations outstanding when
Lender receives written notice of revocation, or to any extensions, renewals,
readvances, modifications, amendments or replacements of such Obligations, or
(c) apply to Obligations, arising after Lender receives such notice of
revocation, which are created pursuant to a commitment existing at the time of
the revocation, whether or not there exists an unsatisfied condition to such
commitment or Lender has another defense to its performance. All of Lender's
rights pursuant to this Guaranty continue with respect to amounts previously
paid to Lender on account of any Obligations which are thereafter restored or
returned by Lender, whether in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding ("Insolvency Proceeding") of Borrower or for
any other reason, all as though such amounts had not been paid to Lender; and
Guarantor's liability under this Guaranty (and all its terms and provisions)
shall be reinstated and revived, notwithstanding any surrender or cancellation
of this Guaranty. Lender, at its sole discretion, may determine whether any
amount paid to it must be restored or returned; provided, however, that if
Lender elects to contest any claim for return or restoration, Guarantor agrees
to indemnify and hold Lender harmless from and against all cost and expenses,
including reasonable attorneys' fees, expended or incurred by Lender in
connection with such contest. No payment by Guarantor shall reduce the
Guarantied Liability Amount hereunder unless, at or prior to the time of such
payment, Lender receives Guarantor's written notice to that effect. If any
Insolvency Proceeding is commenced by or against Borrower or Guarantor, at
Lender's election, Guarantor's obligations under this Guaranty shall
immediately and without notice or demand become due and payable, whether or not
then otherwise due and payable.
3. Authorization. Guarantor authorizes Lender, without notice and without
affecting Guarantor's liability under this Guaranty, from time to time, whether
before or after any revocation of this Guaranty, to (a) renew, compromise,
extend, accelerate, release, subordinate, waive, amend and restate, or
otherwise amend or change, the interest rate, time or place for payment or any
other terms of all or any part of the Obligations; (b) accept delinquent or
partial payments on the Obligations; (c) take or not take security or other
credit support for this Guaranty or for all or any part of the Obligations, and
exchange, enforce, waive, release, subordinate, fail to enforce or perfect,
sell, or otherwise dispose of any such security or credit support; (d) apply
proceeds of any such security or credit support and direct the order or manner
of its sale or enforcement as Lender, at its sole discretion, may
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determine; and (e) release or substitute Borrower or any guarantor or other
person or entity liable on the Obligations.
4. Waivers. To the maximum extent permitted by law, Guarantor waives (a) all
rights to require Lender to proceed against Borrower, or any other guarantor,
or proceed against, enforce or exhaust any security for the Obligations or to
marshal assets or to pursue any other remedy in Lender's power whatsoever; (b)
all defenses arising by reasons for any disability or other defense of
Borrower, the cessation for any reason of the liability of Borrower, any
defense that any other indemnity, guaranty or security was to be obtained, any
claim that Lender has made Guarantor's obligations more burdensome or more
burdensome than Borrower's obligations, and the use of any proceeds of the
Obligations other than as intended or understood by Lender or Guarantor; (c)
all presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty
and of the existence or creation of new or additional Obligations, and all
other notices or demands to which Guarantor might otherwise be entitled; (d)
all conditions precedent to the effectiveness of this Guaranty; (e) all rights
to file a claim in connection with the Obligations in an Insolvency Proceeding
filed by or against Borrower; (f) all rights to require Lender to enforce any
of its remedies; and (g) until the Obligations are satisfied or fully paid with
such payment not subject to return: (i) all rights of subrogation,
contribution, indemnification or reimbursement, (ii) all rights of recourse to
any assets or property of Borrower, or to any collateral or credit support for
the Obligations, (iii) all rights to participate in or benefit from any
security or credit support Lender may have or acquire, (iv) all rights,
remedies and defenses Guarantor may have or acquire against Borrower and (v)
any rights or defenses Guarantor may have by reason of protection afforded to
Borrower with respect to the Obligations pursuant to the laws of Nebraska or
otherwise limiting or discharging Borrower's indebtedness. Guarantor
understands that if Lender forecloses by trustee's sale on a deed of trust
securing any of the Obligations, Guarantor would then have a defense preventing
Lender from thereafter enforcing Guarantor's liability for the unpaid balance
of the secured Obligations. This defense arises because the trustee's sale
would eliminate Guarantor's right of subrogation, and therefore Guarantor would
be unable to obtain reimbursement from Borrower. Guarantor specifically waives
this defense and all rights and defenses arising out of an election of remedies
by Lender, even though that election of remedies, such as a 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 Nebraska law or otherwise.
5. Assignments. Without notice to Guarantor, Lender may assign the
Obligations and this Guaranty, in whole or in part.
6. Integration/Severability/Amendments. This Guaranty is intended by
Guarantor and Lender as the complete, final expression of their agreement
concerning its subject matter. It supersedes all prior understandings or
agreements with respect thereto and may be changed only by a writing signed by
Guarantor and Lender. No course of dealing, or parole or extrinsic evidence
shall be used to modify or supplement the express terms of this Guaranty. If
any provision of this Guaranty is found to be illegal, invalid or
unenforceable, such provision shall be
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enforced to the maximum extent permitted, but if fully unenforceable, such
provision shall be severable, and this Guaranty shall be construed as if such
provision had never been a part of this Guaranty, and the remaining provisions
shall continue in full force and effect.
7. Joint and Several. The obligations of each Guarantor under this Guaranty
are joint and several, and independent of the Obligations and of the
obligations of any other person or entity. A separate action or actions may be
brought and prosecuted against any one or more Guarantors, whether action is
brought against Borrower or other guarantors of the Obligations, and whether
Borrower or others are joined in any such action.
8. Governing Law. THIS GUARANTY SHALL BE CONSTRUED IN ALL RESPECTS IN
ACCORDANCE WITH, AND GOVERNED BY, THE LAWS AND DECISIONS OF THE STATE OF
NEBRASKA. EACH GUARANTOR HEREBY CONSENTS TO JURISDICTION AND VENUE IN ANY
CONTROVERSY INVOLVING THIS AGREEMENT IN FEDERAL OR STATE COURT SITTING IN THE
CITY OF OMAHA, NEBRASKA.
CONSOLIDATED CAPITAL OF NORTH
AMERICA, INC.,
a Colorado corporation
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
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Title: Chairman
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STONE PINE COLORADO, LLC
a Colorado limited liability company
By: /s/ X. Xxxx DeGrassi
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Name: X. Xxxx DeGrassi
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Title: Executive Vice President
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