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Continuing Guaranty BY Cresa Partners of Orange Co.

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Exhibit 10.4



CONTINUING GUARANTY OF PAYMENT AND PERFORMANCE



THIS CONTINUING GUARANTY OF PAYMENT AND PERFORMANCE (the "Guaranty") is entered into by and between CRESA Partners of Orange County, LP, a Delaware limited partnership (the "Guarantor"), in favor of First Republic Bank (the "Lender") as of June 8, 2006.



A. ASDS of Orange County, Inc., a Delaware corporation (the "Borrower"), has requested a loan or loans (collectively, the "Loan") from the Lender which will be evidenced by Borrower's promissory note or notes (collectively, the "Note") in favor of the Lender. The Loan arises out of that certain loan agreement dated June 8, 2006 (the "Loan Agreement") executed by Borrower and the Lender. The Note and the Loan Agreement, together with all security agreements, guaranties, third party pledge agreements and all other documents now or hereafter executed by Borrower and delivered to Lender at Lender's request in connection with the Loan, and all extensions, renewals, modifications and replacements of any or all of such documents, shall be referred to herein as the "Loan Documents."



B. Guarantors are shareholders and/or officers of Borrower. Guarantors will benefit by the proceeds of the Loan to be provided to Borrower.



C. To induce Bank to enter into the Loan Agreement and to accept the Notes and to advance funds to Borrower thereunder, Guarantors are delivering this Guaranty.



AGREEMENT



THEREFORE, in consideration of the foregoing and for other valuable consideration, the receipt and adequacy of which are hereby acknowledged, Guarantor hereby agrees as follows:



1. Definitions. For purposes of this Guaranty, terms not otherwise defined herein shall have the meaning specified in Exhibit A to the Loan Agreement.



2. Guaranty.


(a) Guaranty of Obligations. Guarantor hereby guaranties to Bank, its successors and assigns, as primary obligors and not merely as surety, the full and faithful payment of all amounts owed and performance of each and every one of the obligations, responsibilities and undertakings to be carried out, performed or observed by Borrower under the Loan Documents and all documents executed in connection therewith and any other agreements or indebtedness of Borrower to Bank (hereafter collectively referred to as the "Guaranteed Obligations"). The word "indebtedness" is used herein in its most comprehensive sense and includes any and all loans, advances, debts, lease obligations, and other obligations and liabilities of Borrower, 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 nonliquidated, determined or undetermined, whether Borrower may be liable individually or jointly with others, or whether recovery upon such indebtedness may be or hereafter become barred or otherwise unenforceable.



(b) Guaranty of Performance. If at any time Borrower, its successors or permitted assigns, fails, neglects or refuses to pay amounts or perform any of its obligations, responsibilities or undertakings as expressly provided pursuant to the terms and conditions of the Guaranteed Obligations, then Guarantors shall pay such amounts or perform or cause to be performed such obligation, responsibility or undertaking as required pursuant to the terms and conditions of the Guaranteed Obligations.







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3. Absolute. This Guaranty is irrevocable, absolute, present and unconditional continuing guaranty. The obligations of Guarantor under this Guaranty shall not be affected, reduced, modified or impaired upon the happening from time to time of any of the following events, whether or not with notice to (except as notice is otherwise expressly required herein) or the consent of Guarantor:



(a) Failure to Give Notice. The failure to give notice to Guarantor of the occurrence of a default under the terms and provisions of this Guaranty or the Guaranteed Obligations;



(b) Modification or Amendment. The amendment, acceleration, renewal or extension of any obligation, covenant or agreement or the Guaranteed Obligations;



(c) Bank's Failure to Exercise Rights. Any failure, omission, delay by, or inability on the part of Bank to assert or exercise any right, power or remedy conferred on Bank in this Guaranty or the Guaranteed Obligations as the case may be, including the failure to execute on collateral held for this Guaranty, the Guaranteed Obligations or the Loan Documents;



(d) Change in Borrower. A termination, dissolution, consolidation or merger of Borrower with or into any other entity, the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of Borrower's assets, the marshalling of Borrower's assets and liabilities, the receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors, or readjustment of, or other similar proceedings affecting Borrower, Guarantor, or any of the assets of either;



(e) Subordination or Release of Security. Any subordination or release of any collateral now or hereafter held by Bank for the performance of the Guaranteed Obligations;



(f) Assignment. The assignment of any right, title or interest of Bank herein or in the Loan Documents to any other person; or



(g) Extent of Guarantor's Obligations. Any other cause or circumstance, foreseen or unforeseen, whether similar or dissimilar to any of the foregoing; it is the intent of Guarantor that the obligations hereunder shall not be discharged except by: (i) payment of amounts owing pursuant to this Guaranty and/or Guaranteed Obligations, then only to the extent of such payment or payments; or (ii) full performance of obligations under this Guaranty and/or Guaranteed Obligations, then only to the extent of such performed or discharged obligation or obligations.



4. Guaranty of Payment. The liability of Guarantors on this Guaranty is a guaranty of payment and performance and not of collectibility, and is not conditional or contingent on the genuineness, validity, regularity, or enforceability of the Guaranteed Obligations or the pursuit by Bank of any remedies that it now has or may hereafter have with respect thereto, or the cessation of Borrower's liability for any reason other than full performance under the Loan Documents, including, without limitation, any and all obligation to indemnify Bank.



5. Authorization. Guarantor hereby authorizes Bank, without notice or demand and without affecting its liability hereunder, and without consent of Guarantor or prior notice to Guarantor, from time to time to: (a) make any modifications to the Guaranteed Agreement with the consent of the parties thereto; (b) assign the Guaranteed Obligations and this Guaranty; (c) take and hold security for the performance of the obligations guarantied herein with the consent of the party providing such security; and (d) accept additional guarantors.







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6. Waiver and Release by Guarantor.



(a) Enforcement Against Other Parties. Guarantor hereby waives the right to require Bank to: (i) proceed against Borrower or any other person or guarantor; (ii) proceed or exhaust any security held from any person; (iii) proceed against any other guarantor; or (iv) pursue any other remedy available to Bank.



(b) Subrogation. Until the Guaranteed Obligations have been paid or otherwise discharged in full, Guarantor does hereby waive all rights of subrogation and any right to enforce any remedy which Bank now has, or may have, against Borrower, and Guarantor does hereby waive any benefit of, and any right to participate in, any security now or hereafter held by Bank. Guarantor hereby waives any defense it may have now or in the future based on any election of remedies by Bank which destroys Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement and Guarantor acknowledges that they will be liable to Bank even though Guarantor may well have no such recourse against Borrower.



(c) Notices. Guarantor hereby waives notice of (i) acceptance and reliance on this Guaranty, (ii) notice of renewal, extension or modification of any of the Guaranteed Obligations, and (iii) notice of default or demand in the case of default.



(d) Release of Third Parties. Guarantor hereby waives any right or defense it may now or hereafter have based upon (i) Bank's release of any party who may be obligated to Bank; (ii) Bank's release or impairment of any collateral for the Guaranteed Obligations; and (iii) the modification or extension of the obligations or agreements guaranteed under this Guaranty.



(e) Guarantor Defenses. Guarantor hereby waives, to the maximum extent such wavier is permitted by law, any and all benefits or defenses arising directly or indirectly under any one or more of: (i) California Civil Code Sections 2799, 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2845, 2846, 2847, 2848, 2849, 2850, 2899 and 3433; (ii) Chapter 2 of Title 14 of the California Civil Code; (iii) California Code of Civil Procedure Sections 580a, 580b, 580c, 580d, 725a and 726; or (iv) California Commercial Code 3605.



(f) Statute of Limitations. Guarantor hereby waives any statute of limitation affecting liability under this Guaranty or the enforceability of this Guaranty.



(g) Cessation of Liability of Borrower. Guarantor waives any defense arising by reason of any disability or other defense of Borrower or by reason of the cessation from any cause whatsoever of the liability of Borrower.



(h) Confidentiality of Accounting. Guarantor waives the right to assert a confidential relationship, if any, Guarantor may have with any accounting firm and/or service bureau in connection with any information requested by Bank pursuant to or in accordance with this Guaranty or any agreement in connection with this Guaranty, and agrees that Bank may contact directly any such accounting firm and/or service bureau in order to obtain such information.



(i) Duty of Disclosure. Guarantor hereby waives any duty on the part of Bank to disclose to Guarantor any facts Bank may now or hereafter know about Borrower or Borrower financial condition regardless of whether Bank has reason to believe that any such facts materially increase the risk beyond that which Guarantor intends to assume, or has reason to believe that such facts are unknown to Guarantor, or has a reasonable opportunity to communicate such facts to Guarantor.







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7. Information. Guarantors hereby represent that Guarantors are fully aware of the financial condition and operation of Borrower and is in a position by virtue of his relationship to Borrower to obtain all necessary financial and operational information concerning Borrower. Beneficiary need not disclose to Guarantors any information about: (i) the Guaranteed Obligations or any modification thereto, and any action or non-action in connection therewith; (ii) any other obligation guarantied hereby; (iii) the financial condition or operation of Borrower; or (iv) any other guaranties.



8. Subordination. Until the Guaranteed Obligations have been paid or otherwise discharged in full, Guarantor does hereby subor
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