05-0731_AMERICAN STERLING BANK_Commercial GuarantyCOMMERCIAL GUARANTY
PTFTtcFpaF F,aan pato Maturtty Loan MJD c..... A�w unt k FFceT FfiFtFaFs
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or Rem.
Any item above containing """ has been omitted due to text length limitations.
Borrower: Boys & Girls Clubs of Capistrano Valley, a
California Non -Profit Corporation (TIN:
33.0529575)
One Via Positive
San Juan Capistrano, CA 92675
Guarantor: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Lender: AMERICAN STERLING BANK
Sugar Creek Financial Center
535 South Sterling
P. O. Box 8500
Sugar Creek, MO 64054
AMOUNT OF GUARANTY. This is a guaranty of payment of the Note, including without limitation the principal Note amount of Seven Hundred
Fifty Thousand & 00/100 Dollars ($750,000.00).
GUARANTY. For good and valuable consideration, City of San Juan Capistrano ("Guarantor") absolutely and unconditionally guarantees and
promises to pay to AMERICAN STERLING BANK ("Lender") or its order, In legal tender of the United States of America, the Indebtedness (as
that term is defined below) of Boys & Girls Clubs of Capistrano Valley, a California Non-Proflt Corporation ("Borrower") to Lender on the terms
and conditions set forth in this Guaranty.
MAXIMUM LIABILITY. The maximum liability of Guarantor under this Guaranty shall not exceed at any one time the amount of the Indebtedness
described herein, plus all costs and expenses of (A) enforcement of this Guaranty and (B) collection and sale of any collateral securing this Guaranty.
The above limitation on liability is not a restriction on the amount of the Indebtedness of Borrower to Lender either in the aggregate or at any one time.
If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Lender's rights under all guaranties shall
be cumulative. This Guaranty shall not (unless specifically provided below to the contrary) affect or invalidate any such other guaranties. Guarantor's
liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties.
INDEBTEDNESS GUARANTEED. The Indebtedness guaranteed by this Guaranty includes the Note, including (a) all principal, (b) all interest, (c) all
late charges, (d) all loan fees and loan charges, and (e) all collection costs and expenses relating to the Note or to any collateral for the Note.
Collection costs and expenses include without limitation all of Lender's attorneys' fees.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity of any acceptance by Lender, or any notice
to Guarantor or to Borrower, and will continue in full force until all Indebtedness shall have been fully and finally paid and satisfied and all of Guarantor's
other obligations under this Guaranty shall have been performed in full. Release of any other guarantor or termination of any other guaranty of the
Indebtedness shall not affect the liability of Guarantor under this Guaranty. A revocation Lender receives from any one or more Guarantors shall not
affect the liability of any remaining Guarantors under this Guaranty. This Guaranty covers a revolving line of credit and it Is specifically anticipated
that fluctuations will occur in the aggregate amount of Indebtedness owing from Borrower to Lender. Guarantor specifically acknowledges
and agrees that fluctuations In the amount of Indebtedness, even to zero dollars ($ 0.00), shall not constitute a termination of this Guaranty.
Guarantor's liability under this Guaranty shall terminate only upon (A) termination In writing by Borrower and Lender of the line of credit, (B)
payment of the Indebtedness in full in legal tender, and (C) payment in full in legal tender of all of Guarantor's other obligations under this
Guaranty.
GUARANTOR'S 'AUTHORIZATION TO LENDER. Guarantor authorizes Lender, without notice or demand and without lessening Guarantor's
liability under this Guaranty, from time to time: (A) to make one or more additional secured or unsecured loans to Borrower, to lease equipment or
other goods to Borrower, or otherwise to extend additional credit to Borrower; (B) to after, compromise, renew, extend, accelerate, or otherwise
change one or more times the time for payment or other terms of the Indebtedness or any part of the Indebtedness, including increases and decreases
of the rate of interest, principal amount, fees or other charges on the Indebtedness; extensions may be repeated and may be for longer than the original
loan term; (C) to take and hold security for the payment of this Guaranty or the Indebtedness, and exchange, enforce, waive, subordinate, fail or
decide not to perfect, and release any such security, with or without the substitution of new collateral; (D) to release, substitute, agree not to sue, or
deal with any one or more of Borrower's sureties, endorsers, or other guarantors on any terms or in any manner Lender may choose; (E) to determine
how, when and what application of payments and credits shall be made on the Indebtedness; (F) to apply such security and direct the order or
manner of sale thereof, including without limitation, any nonjudicial sale permitted by the tents of the controlling security agreement or deed of trust, as
Lender in its discretion may determine; (G) to sell, transfer, assign or grant participations in all or any part of the Indebtedness; and (H) to assign or
transfer this Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A) no representations or agreements
of any kind have been made to Guarantor which would limit or quality in any way the terms of this Guaranty; (B) this Guaranty is executed at
Borrower's request and not at the request of Lender; (C) Guarantor has full power, right and authority to enter into this Guaranty; (D) the provisions
of this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a
violation of any law, regulation, court decree or order applicable to Guarantor; (E) Guarantor has not and will not, without the prior written consent of
Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's assets, or any interest therein;
(F) upon Lender's request, Guarantor will provide to Lender financial and credit information in form acceptable to Lender, and all such financial
information which currently has been, and all future financial information which will be provided to Lender is and will be true and correct in all material
respects and fairly present Guarantor's financial condition as of the dates the financial information is provided; (G) no material adverse change has
occurred in Guarantor's financial condition since the date of the most recant financial statements provided to Lender and no event has occurred which
may materially adversely affect Guarantor's financial condition; (H) no litigation, claim, investigation, administrative proceeding or similar action
(including those for unpaid taxes) against Guarantor is pending or threatened; (1) Lender has made no representation to Guarantor as to the
creditworthiness of Borrower; and (J) Guarantor has established adequate means of obtaining from Borrower on a continuing basis information
regarding Borrower's 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 under this Guaranty, and Guarantor further agrees that, absent a request for information, Lender shall have no
obligation to disclose to Guarantor any information or documents acquired by Lender in the course of its relationship with Borrower.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (A) to continue lending money or to
extend other credit to Borrower; (B) to make any presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the
Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower, Lender, any surety, endorser,
or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional loans or obligations; (C) to resort for
payment or to proceed directly or at once against any person, including Borrower or any other guarantor, (D) to proceed directly against or exhaust
any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to give notice of the terms, time, and place of any public or
COMMERCIAL GUARANTY
Loan No: 0151749901 (Continued) Page 2
private sale of personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial
Code; (F) to pursue any other remedy within Lender's power; or (G) to commit any act or omission of any kind, or at any time, with respect to any
matter whatsoever.
In addition to the waivers set forth herein, if now or hereafter Borrower is or shall become insolvent and the Indebtedness shall not at all times until paid
be fully secured by collateral pledged by Borrower, Guarantor hereby forever waives and gives up in favor of Lender and Borrower, and Lender's and
Borrower's respective successors, any claim or right to payment Guarantor may now have or hereafter have or acquire against Borrower, by
subrogation or otherwise, so that at no time shall Guarantor be or become a "creditor" of Borrower within the meaning of 11 U.S.C. section 547(b), or
any successor provision of the Federal bankruptcy laws.
Guarantor also waives any and all rights or defenses arising by reason of (A) any 'one action" or "anti -deficiency" law or any other law which may
prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of
any foreclosure action, either judicially or by exercise of a power of sale; (B) any election of remedies by Lender which destroys or otherwise adversely
affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, including without limitation, any loss of
rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (C) any disability or other defense of Borrower,
of any other guarantor, or of any other person, or by reason of the cessation of Borrower's liability from any cause whatsoever, other than payment in
full in legal tender, of the Indebtedness; (D) any right to claim discharge of the Indebtedness on the basis of unjustified impairment of any collateral for
the Indebtedness; (E) any statute of limitations, If at any time any action or suit brought by Lender against Guarantor is commenced, there is
outstanding Indebtedness of Borrower to Lender which is not barred by any applicable statute of limitations; or (F) any defenses given to guarantors
at law or in equity other than actual payment and performance of the Indebtedness. If payment is made by Borrower, whether voluntarily or otherwise,
or by any third parry, on the Indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrower's trustee in bankruptcy or to
any similar person under any federal or state bankruptcy law or law for the retie} of debtors, the Indebtedness shall be considered unpaid for the
purpose of the enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any claim of
setoff, counterclaim, counter demand, recoupment or similar right, whether such claim, demand or right may be asserted by the Borrower, the
Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above 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 such waiver is determined to be contrary to any applicable law or public policy, such waiver shall be effective only to the
extent permitted by law or public policy.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender (whether
checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts Guarantor may open
in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Guarantor
authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is a default, and Lender may apply the funds in these accounts
to pay what Guarantor owes under the terms of this Guaranty.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness of Borrower to Lender, whether row
existing or hereafter created, shall be superior to any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not
Borrower becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account
whatsoever, to any claim that Lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquidation of the assets
of Borrower, through bankruptcy, by an assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicable
to the payment of the claims of both Lender and Guarantor shall be paid to Lender and shall be first applied by Lender to the Indebtedness of Borrower
to Lender. Guarantor does hereby assign to Lender all claims which it may have or acquire against Borrower or against any assignee or trustee in
bankruptcy of Borrower; provided however, that such assignment shall be effective only for the purpose of assuring to Lender full payment in legal
tender of the Indebtedness. If Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Borrower to
Guarantor shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to Lender. Guarantor agrees, and Lender is
hereby authorized, in the name of Guarantor, from time to time to file financing statements and continuation statements and to execute documents and
to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty:
Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party
or parties sought to be charged or bound by the afteration or amendment.
Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of this Guaranty. Lender may hire or pay someone else to help enforce this
Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), and appeals. Guarantor also shall pay all court costs and such additkml fees as may be directed by the
court.
Caption Headings. Caption headings in this Guaranty are for convenience purposes only and are not- to be used to interpret or define the
provisions of this Guaranty.
Governing Law. This Guaranty will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the
laws of the State of Missouri without regard to Its conflicts of law provisions. This Guaranty has been accepted by Lender In the State of
Missouri.
Choice of Venue. If there is a lawsuit, Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of Jackson County, State
of Missouri.
Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the
opportunity to be advised by Guarantor's attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions and pard
evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnities and holds Lender harmless from all losses, claims,
damages, and costs (including Lender's attorneys' fees) suffered or incurred by Lender as a result of any breach by Guarantor of the warranties,
representations and agreements of this paragraph.
Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shall be
deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower named in this
Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Borrower" and 'Guarantor" respectively shall mean all and
any one or more of them. The words "Guarantor; "Borrower," and "Lender" include the heirs, successors, assigns, and transferees of each of
COMMERCIAL GUARANTY
Loan No: 0151749901 (Continued)
Page 3
them. All of the obligations of Guarantor under this Guaranty (it more than one Guarantor) shall be joint and several. If a court finds that any
provision of this Guaranty is not valid or should not be enforced, that fact by itself will not mean that the rest of this Guaranty will not be valid or
enforced. Therefore, a court will enforce the rest of the provisions of this Guaranty even if a provision of this Guaranty may be found to be invalid
or unenforceable. If any one or more of Borrower or Guarantor are corporations, partnerships, limited liability companies, or similar entities, Q is
not necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers, directors, partners, managers, or other agents
acting or purporting to act on their behalf, and any indebtedness made or created in reliance upon the professed exercise of such powers shall be
guaranteed under this Guaranty.
Notices. Any notice required to be given under this Guaranty shall be given in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed,
when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the
beginning of this Guaranty. Any party may change its address for notices under this Guaranty by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address. For notice purposes, Guarantor agrees to keep Lender informed at all
times of Guarantor's current address. Unless otherwise provided or required by law, if there is more than one Guarantor, any notice given by
Lender to any Guarantor is deemed to be notice given to all Guarantors.
No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A
waiver by Lender of a provision of this Guaranty shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance
with that provision or any other provision of this Guaranty. No prior waiver by Lender, nor any course of dealing between Lender and Guarantor,
shall constitute a waiver of any of Larder's rights or of any of Guarantor's obligations as to any future transactions. Whenever the consent of
Lender is required under this Guaranty, the granting of such consent by Lender in any instance shall not constitute continuing consent to
subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender.
Successors and Assigns. This Guaranty shall be understood to be for the benefit of Lender and for such other person or persons as may from
time to time become or be the holder or owner of any of the Indebtedness or any interest therein, and this Guaranty shall be transferable to the
same extent and with the same force and effect as any such Indebtedness may be transferable.
GUARANTY DATE. This guarantee is undated with no specific maturity date therefor being utilized in any ongoing renewals to Boys & Girls Club of
Capistrano Valley.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Guaranty. Unless specifically stated to
the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the
singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this
Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code:
Borrower. The word "Borrower" means Boys & Girls Clubs of Capistrano Valley, a California Non -Profit Corporation and includes all co-signers
and co -makers signing the Note.
Guarantor. The word "Guarantor" means each and every person or entity signing this Guaranty, including without limitation City of San Juan
Capistrano.
Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender, including without limitation a guaranty of all or part of the Note.
Indebtedness. The word "Indebtedness" means Borrower's indebtedness to Lender as more particularly described in this Guaranty.
Lender. The word "Lender" means AMERICAN STERLING BANK, its successors and assigns.
Note. The word "Note" means the promissory note dated July 31, 2005, in the original principal amount of $750,000.00 from Borrower to
Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory rote or
agreement.
Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS
TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND
DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH
IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE. THIS GUARANTY IS DATED JULY 31, 2005.
GUARANTOR:
CITY OF SAN JUAN CAPISTRANO
By:
DAF. Adams, City Manager of City of San Juan
Capistrano
PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
State of California )
County of Orange ) ss.
City of San Juan Capistrano )
(Gov't Code 40814 & Civil Code 1181)
On August 4, 2005 before me, Margaret R. Monahan, City Clerk, personally appeared
David F. Adams, City Manager, personally known to me to be the person whose name is subscribed
to the within instrument and acknowledged to me that she executed the same in her authorized
capacity, and that by her signature on the instrument the person, or the entity upon behalf of which
the person acted, executed the instrument.
(SEAL)
Capacity Claimed by Signers
City Manager
Title
Signers are Representing
City of San Juan Capistrano
WITNESS my hand and official seal.
R. Monahan, City Clerk
AL
Description of Attached Document
Commercial Guaranty (American Sterling
Bank)(Owner: Boys & Girls Club)
None
Signer(s) Other Than Named Above