EXHIBIT 99.10
EXECUTION VERSION
LIMITED RECOURSE XXXXX X. XXXXX GUARANTY
This Limited Recourse Guaranty (this "Guaranty"), dated as of July 19, 2002,
is made by XXXXX X. XXXXX, an individual and THE XXXXX X. XXXXX TRUST dated
March 5, 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 Bank of America, N.A., a national
banking association (the "Bank") and the purchasers of 9.35% Senior Secured
Notes due July 1, 2004 (the "Purchasers," and together with the Bank, the
"Secured Creditors") of American Golf Corporation, a California corporation (the
"Company").
Recitals
A. The Company is indebted to the Bank pursuant to a Credit Agreement dated
as of July 30, 1996, as amended, restated or modified from time to time, and any
agreements, instruments, certificates or other documents entered into in
connection therewith (the "Credit Agreement"). The Bank agreed to temporarily
forbear from exercising its remedies under the Credit Agreement pursuant to a
Forbearance Agreement dated as of March 8, 2002 (collectively with the Credit
Agreement, the "Credit Documents").
B. The Company is indebted to the Purchasers 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 "Purchase Documents"). The Bank and the Purchasers are
hereinafter collectively referred to as the "Secured Creditors." The Credit
Documents and the Purchase Documents are hereinafter collectively referred to as
the "Debt Documents."
C. Each of the Company and the Guarantor has requested that the Bank and the
Purchasers further forbear in the exercise of their remedies by entering 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"). Terms defined in the
Restructuring Agreement and not otherwise defined herein have the same
respective meanings when used herein.
D. The Bank and the Purchasers are willing to enter into the Restructuring
Agreement subject to the terms and conditions thereof.
E. The Company, the Secured Creditors and the Collateral Agent are entering
into a Collateral Agency and Intercreditor Agreement dated as of even date
herewith (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.
F. 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.
G. It is a condition precedent to the respective closings under the
Restructure Documents that the Guarantor shall have executed and delivered this
Guaranty.
H. 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 Restructuring 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, 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 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 day immediately following the
payment by the Company to the Bank and the Purchasers in the aggregate of an
amount equal to $6,050,510 as contemplated by the Restructuring Agreement.
(b) The Guarantor agrees to pay any and all costs, fees and expenses,
including, without limitation, (i) the reasonable out-of-pocket costs and
expenses of the Bank and any of its affiliates and (ii) the reasonable fees and
disbursements of Pillsbury Winthrop LLP, the Bank's local real estate counsel
and other counsel to the Bank (including allocated costs of internal counsel),
(iii) the reasonable fees and disbursements of Akin, Gump, Strauss, Xxxxx &
Xxxx, L.L.P. and other counsel to the Purchasers and (iv) 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.
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(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 the extent modified by the Restructure Documents,
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;
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(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.
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,
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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 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
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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;
(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;
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(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.
(b) Without limiting the generality of any other provision of this
Guaranty, the Guarantor waives all rights and defenses that he 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.
(c) 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
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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 Credit Enhancement Agreement.
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 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 he 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 Mountaingate Land, the Guaranty of Xxx Xxxxxxx Golf or the Guaranty
of GEI, the release of Mountaingate Land, Xxx Xxxxxxx Golf or GEI, any
settlement with Mountaingate Land, Xxx Xxxxxxx Golf or GEI, nor the revocation
or impairment of the Guaranty of Mountaingate Land, the Guaranty of Xxx Xxxxxxx
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 each other Restructure Document to which the Guarantor is or is to
be a party, 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
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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 his 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 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 has been, and each other Restructure Document to
which the Guarantor is or is to be a party when delivered will be, duly executed
and delivered by the Guarantor. This Guaranty is, and each other Restructure
Document to which the Guarantor is or is to be a party 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 him insolvent as that
term is defined below; (ii) leave him with remaining assets which constitute
unreasonably small capital given the nature of his 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,
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liquidated or unliquidated, absolute, fixed or contingent. The Guarantor hereby
acknowledges and warrants that he 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.
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
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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 Parties and any such
assignment or delegation without the prior written consent of the Secured
Parties 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
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
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Guarantor's obligations and liabilities under this Guaranty; that Guarantor has
made whatever investigations and inquiries he and/or his 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 Parties 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 Restructuring Agreement by the Secured Parties,
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 Parties would not be willing to enter
into the Restructuring Agreement.
Section 15. Entire Agreement. This Guaranty (together with the Restructuring
Agreement, the Pledge Agreement and the AGC Collateral Agency Agreement)
embodies the entire understanding of the Secured Parties 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, 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 he 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 he 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
xxx in any other jurisdiction; and (e) waives, to the maximum extent not
prohibited by law, any right he may have to claim or recover punitive damages in
any legal action or proceeding referred to in this section.
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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.
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 he has diligently and
thoroughly investigated the existence of any Claim (as defined below), and, to
his 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 his execution of this Guaranty,
and on behalf of himself and each of his 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
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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 he has not
heretofore assigned, and shall not hereafter xxx 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 HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Limited Recourse
Xxxxx X. Xxxxx Guaranty to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.
XXXXX X. XXXXX,
An Individual
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name:Xxxxx X. Xxxxx
Title: Individual
THE XXXXX X. XXXXX TRUST
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Trustee
BNY MIDWEST TRUST COMPANY,
as Collateral Agent for the Secured Parties
By: /s/ Xxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Treasurer
