Exhibit 10(j)(3)
XXXXX FARGO BANK CONTINUING GUARANTY
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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 XXXXXXX
CONTRACTING, INC. ("Borrowers"), or any of them, by XXXXX FARGO BANK, NATIONAL
ASSOCIATION ("Bank"), and for other valuable consideration, the undersigned REXX
ENVIRONMENTAL CORPORATION ("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, and whether recovery upon such Indebtedness
may be or hereafter becomes unenforceable.
2. MAXIMUM LIABILITY; SUCCESSIVE TRANSACTIONS; REVOCATION; OBLIGATION
UNDER OTHER GUARANTIES. The liability of Guarantor shall not exceed at any one
time the sum of $2,000,000.00 for principal, plus all interest thereon and costs
and expenses pertaining to the enforcement of this Guaranty and/or the
collection of the Indebtedness of any of the Borrowers to Bank. Notwithstanding
the foregoing, Bank may permit the Indebtedness of Borrowers to exceed
Guarantor's liability. 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 San Diego RCBO, 000 X Xxxxxx Xxxxx 0000, Xxx Xxxxx,
XX 00000, or at such other address as Bank shall from time to time designate.
Any payment by Guarantor with respect to the Indebtedness 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
CONTINUING GUARANTY (08/96), Page 1
reinstated and revived and the rights of Bank shall continue if and to the
extent that for any reason any amount at any time paid on 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 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 then 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 of
personal property security held from any of the Borrowers or any other person,
or otherwise comply with the provisions of Section 9504 of the California
Uniform Commercial Code; (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 of 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 Bank which directly
or indirectly results in or
CONTINUING GUARANTY (08/96), Page 2
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 Borrower; (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; or (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. 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 Sections 726, 580a or 580d of the Code of Civil Procedure as from
time to time amended, or otherwise, including any rights Guarantor may have to a
Section 580a fair market value hearing to determine the size of a deficiency
following any trustee's foreclosure sale or other disposition of any real
property security for any portion of the Indebtedness.
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. Guarantor will, and Bank is hereby authorized in the
name of Guarantor from time to time to, execute and 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.
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
CONTINUING GUARANTY (O8/96), Page 3
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. The "Prime Rate" is a base
rate that Bank from time to time establishes and which serves as the basis upon
which effective rates of interest are calculated for those loans making
reference thereto.
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. Any married person who signs this
Guaranty as a Guarantor hereby expressly agrees that recourse may be had against
his or her separate property for all his or her obligations under this Guaranty.
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 Agreement shall be held
to be prohibited by or invalid under applicable public policy or law, such
waiver or other provision shell 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 Agreement.
16. GOVERNING LAW. This Guaranty shall be governed by and construed in
accordance with the laws of the state of California.
17. ARBITRATION.
(a) Arbitration. Upon the demand of any party, any Dispute shall be
resolved by binding arbitration (except as set forth in (e) below) in accordance
with the terms of this Guaranty. A "Dispute" shall mean any action, dispute,
claim or controversy of any kind, whether in contract or tort, statutory or
common law, legal or equitable, now existing or hereafter arising under or in
connection with, or in any way pertaining to, this Guaranty and each other
document, contract and instrument required hereby or now or hereafter delivered
to Bank in connection herewith (collectively, the "Documents"), or any past,
present or future extensions of credit and other activities, transactions or
obligations of any kind related directly or indirectly to any of the Documents,
including without limitation, any of the foregoing arising in connection with
the exercise of any self-help, ancillary or other remedies pursuant to any of
the Documents. Any party may by summary
CONTINUING GUARANTY (O8/96), Page 4
proceedings bring an action in court to compel arbitration of a Dispute. Any
party who fails or refuses to submit to arbitration following a lawful demand by
any other party shall bear all costs and expenses incurred by such other party
in compelling arbitration of any Dispute.
(b) Governing Rules. Arbitration proceedings shall be administered by the
American Arbitration Association ("AAA") or such other administrator as the
parties shall mutually agree upon in accordance with the AAA Commercial
Arbitration Rules. All Disputes submitted to arbitration shall be resolved in
accordance with the Federal Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in any of the Documents.
The arbitration shall be conducted at a location in California selected by the
AAA or other administrator. If there is any inconsistency between the terms
hereof and any such rules, the terms and procedures set forth herein shall
control. All statutes of limitation applicable to any Dispute shall apply to any
arbitration proceeding. All discovery activities shall be expressly limited to
matters directly relevant to the Dispute being arbitrated. Judgment upon any
award rendered in an arbitration may be entered in any court having
jurisdiction; provided however, that 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. ss.91 or any similar applicable state law.
(c) No Waiver; Provisional Remedies, Self-Help and Foreclosure. No
provision hereof shall limit the right of any party to exercise self-help
remedies such as setoff, foreclosure against or sale of any real or personal
property collateral or security, or to obtain provisional or ancillary remedies,
including without limitation injunctive relief, sequestration, attachment,
garnishment or the appointment of a receiver, from a court of competent
jurisdiction before, after or during the pendency of any arbitration or other
proceeding. The exercise of any such remedy shall not waive the right of any
party to compel arbitration or reference hereunder.
(d) Arbitrator Qualifications and Powers; Awards. Arbitrators must be
active members of the California State Bar or retired judges of the state or
federal judiciary of California, with expertise in the substantive law
applicable to the subject matter of the Dispute. Arbitrators are empowered to
resolve Disputes by summary rulings in response to motions filed prior to the
final arbitration hearing. Arbitrators (i) shall resolve all Disputes in
accordance with the substantive law of the state of California, (ii) may grant
any remedy or relief that a court of the state of California could order or
grant within the scope hereof and such ancillary relief as is necessary to make
effective any award, and (iii) shall have the power to award recovery of all
costs and fees, to impose sanctions and to take such other actions as they deem
necessary to the same extent a judge could pursuant to the Federal Rules of
Civil Procedure, the California Rules of Civil Procedure or other applicable
law. Any Dispute in which the amount in controversy is $5,000,000 or less shall
be decided by a single arbitrator who shall not render an award of greater than
$5,000,000 (including damages, costs, fees and expenses). By submission to a
single arbitrator, each party expressly waives any right or claim to recover
more than $5,000,000. Any Dispute in which the amount in controversy exceeds
$5,000,000 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.
(e) Judicial Review. Notwithstanding anything herein to the contrary, in
any arbitration in which the amount in controversy exceeds $25,000,000, the
arbitrators shall be required to make specific, written findings of fact and
conclusions of law. In such arbitrations (i) the arbitrators shall not have the
power to make any award which is not supported by substantial evidence or which
is based on legal error, (ii) an award shall not be binding upon the parties
unless the findings of fact are supported by substantial evidence and the
conclusions of law are not erroneous under the substantive law of the state of
California, and (iii) the parties shall have in addition to the grounds
referred to in the Federal Arbitration Act for vacating, modifying or correcting
an award the right to judicial review of (A) whether the findings of fact
rendered by the arbitrators are supported by substantial evidence, and (B)
whether the conclusions of law are erroneous under the substantive law of the
state of California. Judgment confirming an award in such a proceeding may be
entered only if a court determines the award is supported by substantial
evidence and not based on legal error under the substantive law of the state of
California.
(f) Real Property Collateral; Judicial Reference. Notwithstanding anything
herein to the contrary, no Dispute shall be submitted to arbitration if the
Dispute concerns indebtedness secured directly or indirectly, in
CONTINUING GUARANTY (O8/96), Page 5
whole or in part, by any real property unless (i) the holder of the mortgage,
lien or security interest specifically elects in writing to proceed with the
arbitration, or (ii) all parties to the arbitration waive any rights or benefits
that might accrue to them by virtue of the single action rule statute of
California, thereby agreeing that all indebtedness and obligations of the
parties, and all mortgages, liens and security interests securing such
indebtedness and obligations, shall remain fully valid and enforceable. If any
such Dispute is not submitted to arbitration, the Dispute shall be referred to a
referee in accordance with California Code of Civil Procedure Section 638 et
seq., and this general reference agreement is intended to be specifically
enforceable in accordance with said Section 638. A referee with the
qualifications required herein for arbitrators shall be selected pursuant to the
AAA's selection procedures. Judgment upon the decision rendered by a referee
shall be entered in the court in which such proceeding was commenced in
accordance with California Code of Civil Procedure Sections 644 and 645.
(g) 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, by applicable law or
regulation, or to the extent necessary to exercise any judicial review rights
set forth herein. If more than one agreement for arbitration by or between the
parties potentially apples to a Dispute, the arbitration provision most directly
related to the Documents 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 November 10, 1998.
REXX ENVIRONMENTAL CORPORATION
By: Xxxxxxx Xxxx
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Title: President
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